Burgesses with their said Speaker returned unto their own House And being come thither and the Speaker set in his Chair one Bill according to the usual form was read which was for the assurance of Purchasers against incumbrances On Saturday the 21 th day of January the Litany being read by the Clerk and the old Prayer that was used in former Sessions read also by the Speaker M r Speaker made a short Oration to the House partly touching himself and partly touching them For his own part acknowledging his infirmities and praying both their patience and assistance and for them he advised them to use reverent and discreet Speeches to leave curiosity of form and to speak to the matter and for that the Parliament was likely to be very short willed them further to forbear speaking to Bills at the first reading and not to spend too much time in unnecessary Motions or supersiuous Arguments And further desired them that they would see their Servants Pages and Lackies attending on them kept in good order Which ended a Motion was made that M r Speaker and the residue of the House of the better sort of Calling would always at the rising of the House depart and come forth in comely and civil sort for the reverence of the House in turning about with a low Courtesie like as they do make at their coming into the House and not so unseemly and rudely to thrust and throng out as of late time hath been disorderly used which Motion made by Sir James Croft Knight Comptroller of her Majesties Houshold was very well liked of and allowed of all this House The Bill for reformation of disorders of the Clerk of the Market and his Deputies was read the first time M r Paul Wentworth made a Motion for a publick Fast and daily Preaching the Fast to be appointed upon some one certain day but the Preaching to be every Morning at seven of the Clock before the House did sit that so they beginning their proceeding with the Service and Worship of God he might the better bless them in all their Consultations and Actions Sir Francis Knolles Treasurer of the Queens Houshold spake against this Motion M r Thomas Cromwell spake for it M r Alford against it M r Cooke for it M r Secretary Wilson for it M r Serjeant Flowerden for it and M r Norton shewed Precedents that there had been Fasts in London by Order only from the Council by which it seemeth he intended to infer that a Parliament might much rather appoint it Hereupon the House being divided and many Arguments being spent pro con at length the said matter in question was put to Voices and the better side had the greater number for there were a hundred and fifteen Voices for it and but a hundred against it and so it was Ordered that as many of the House of Commons as convenient could should on the Sunday seven-night after being the 29 th day of this instant January Assemble and meet together in the Temple Church there to hear Preaching and join in Prayer together with Humiliation and Fasting for the assistance of Gods Spirit in all their Consultations during this Parliament and for the Preservation of the Queens Majesty and her Realms and that the Preachers who should perform the work and service of that day might be appointed by such of her Majesties Council as were of the House to the intent that they may be discreet persons and keep convenient proportion of time without intermedling with matter of innovation or unquietness This day also it was Ordered that the House should be called on Wednesday next being the 25 th day of this instant January in the Afternoon that so it might appear who did diligently intend the business of the House and who did negligently absent themselves M r Broughton also this Forenoon made a Motion to know the mind of the House touching his Companion or Fellow Burgess who now stood indicted of Felony whether he ought to remain of the House or to forbear coming or that a new one should be Elected in his place Whereupon after the matter had been a while agitated and disputed of in the House it was adjudged that he ought to remain of the House till he were Convicted for it may be any mans case who is guiltless to be accused and thereupon indicted of Felony or a like Crime After which Judgment given by the House M r Norton did further inform them that the Lord Chancellor willed him to signifie unto the House that this matter had been moved to him and that a new Writ had been desired of him for the Election of another in the place of the said Burgess but that his Lordship had refused to yield thereunto and had further alledged that he ought first to be removed by the Judgment of the House and that thereupon the House signifying so much to his Lordship he would thereupon grant a new Writ for a second Election to be made The Judgment of the Lord Chancellor who was both Learned in the Laws and had been an antient Parliament man was much commended by the House and the rather because it so opportunely concurred at this time with the Judgment of the House Which resolution seemeth cross to that former opinion before-given in the House on Thursday last past the 19 th day of this instant January viz. that new Burgesses being returned in the place of others living were to be allowed and received in the House But yet I conceive that these two opinions may well stand together for here the Lord Chancellor was pleased not to grant a Writ for a new Election but to stay the Judgment of the House which was without all question the most just and safe way of Proceeding whereas in those other before-recited Cases he had granted out Writs for new Elections upon meer suggestions and then without all question the Burgesses returned upon those Writs are to be received into the House and must remain as Members thereof until they be again rejected by the Judgment of the House So also it is if a Sheriff shall return one for a Knight of a Shire who was unduly or not at all Elected yet he that is so returned remaineth a Member of the House until his said Election be declared void by the Judgment of the House But why in the said former Case one Elected in a place of a Burgess sick upon suggestion doubtless that he could not recover should be adjudged by the House to be well Elected and returned notwithstanding that the former Burgess was present in the Parliament and had recovered his health I cannot possibly guess Vide March 18 th postea January 22. Sunday On Monday the 23 th day of January the House being Assembled did sit till eleven of the Clock without the Speaker for that he was all that time at the Court in which mean time the Serjeant of the House apprehended one William Hanney Servant to Anthony
Arthur Hall for his said offence And upon another Question it was resolved and Ordered in like manner that the same Fine should be five hundred Marks And upon another like question it was likewise resolved and Ordered that the said Arthur Hall should presently be removed severed and cut off from being any longer a Member of this House during the continuance of this present Parliament and that the Speaker by Authority from this House should direct a Warrant from this House to the Clerk of the Crown-Office in the Chancery for awarding of the Queens Majesties Writ to the Sheriff of the said County of Lincoln for a new Burgess to be returned into this present Parliament for the said Borough of Grantham in the lieu and stead of the said Arthur Hall so as before disabled any longer to be a Member of this House And upon another question it was also in like manner resolved and Ordered that the said Book and Libel was and should be holden deemed taken and adjudged to be for so much as doth concern the errors aforesaid condemned Which done the said Arthur Hall was brought in again to the Bar unto whom the Speaker in the name of the whole House pronounced the said Judgment in form aforesaid and so the Serjeant Commanded to take Charge of him and convey him to the said Prison of the Tower and to deliver him to the Lieutenant of the Tower by Warrant from this House to be directed and signed by the said Speaker for that purpose Vide concerning this matter on Saturday the 4 th day Monday the 6 th day and Wednesday the 8 th day of this instant February foregoing On Wednesday the 15 th day of February Four Bills of no great moment had each of them one reading of which the third being the Bill for granting of one Subsidy two Fifteenths and Tenths was read the second time and Ordered to be ingrossed On Thursday the 16 th day of February the Bill against the Family of Love was read the second time and committed unto Sir Thomas Scott Sir William Moore Sir John Brockett M r Beale and others who were appointed to meet this Afternoon at two of the Clock in the Exchequer Chamber M r Vice-Chamberlain one of the Committees in the Bill for counterfeit Seals who were appointed on Thursday the 26 th day of January foregoing brought in the old Bill amended by the Committees and a new Bill drawn by the said Committees according to the same amendments whereupon the same new Bill was twice read and Ordered to be ingrossed The Bill for punishment of unlawful Marriages which was delivered to M r Doctor Dale and other Committees was this day brought in by M r Grimsditch one other of the Committees and a new Bill for that purpose made by the consent of the same Committees After sundry Speeches used against Sir Rowland Hayward one of the Committees in the Bill against Iron-Mills for an error by him done in preferring a new Bill for that purpose to the House not agreed upon by the more part of the residue of the Committees urging some infliction to be laid upon him or at least his Submission with an acknowledgment of his said error therein to the House it was upon a Motion made by M r Speaker and his Declaration of the Proceeding of the said Sir Rowland Hayward with him in the bringing in of the said latter Bill Ordered by the House that the matter of the said Prosecution should be no further dealt in or medled with as a thing of too small moment for this House to be troubled with or spend time in Three Bills also of no great moment had each of them one reading of which the last being the Bill for ratification of an award for certain Copyholders in the County of Worcester was read the third time and passed upon the Question The Calling of this House appointed to have been this Afternoon is for greater causes deferred till another time On Friday the 17 th day of February Five Bills of no great moment had each of them one reading of which the fourth being the Bill for limitation of Formedon in the Descender and the fifth being the Bill against the excessive multitude of Attornies in the Court of Common-Pleas was read the second time and with the former committed unto both Masters of the Requests M r Lieutenant of the Tower Sir Thomas Sampoole M r Attorney of the Dutchy M r Sands M r Carleton M r Layton M r Grimpston M r Vaughan M r Dalton M r Boyes and M r Grimsditch and both the Bills were delivered to M r Doctor Dale Master of the Requests who with the rest was appointed to meet in the new Hall in the Temple at two of the Clock this Afternoon The Bill touching the Children of Aliens and Strangers was once more read with the former amendments and other amendments now presently inserted three times first read was passed upon the Question after many Arguments first had and made Francis Drake Esquire was Licensed this day by M r Speaker to depart for certain his necessary business in the service of her Majesty Francis Vaughan Esquire one of the Burgesses for the Borough of Wilton in the County of Wiltshire was this day Licensed by M r Speaker to be absent for his necessary business at the Assizes On Saturday the 14 th day of February Two Bills of no great moment had each of them one reading of which the second being the Bill for the naturalizing of certain English mens Children born beyond the Seas was read the first time The Bill for the repealing of certain branches of certain Statutes touching the making of Woollen-Cloths and another Bill touching the Shipping of Cloths were each of them committed upon the first reading unto the former Committees for Cloths who were appointed on Saturday the 4 th day of this instant February foregoing The Bill for preservation of Pheasants and Partridges was read the second time and committed unto M r Chancellor of the Dutchy M r Knight Marshal Sir Thomas Cecil Sir Thomas Scott M r Beamond and others who were appointed to meet at M r Chancellors of the Dutchy at two of the Clock in the Afternoon upon Monday next The Bill for Gavelkind Land within the City of Chester was read the third time The four Bills last past before this present day were sent up to the Lords by M r Treasurer and others The Bill against unlawful Hunting of Conies was read the second time and after many Arguments rejected upon the question of ingrossing M r Chancellor of the Exchequer declared that the Committees appointed by this House to have Conference with the Lords touching the Bill for Religion have sundry times met together with their Lordships about the same Bill and that the same Bill is by the said Committees in some parts altered changed and amended and in some other parts abridged and some others added unto and so delivered in the same
that the Return of the Writ ought to have been returnned into the Court of Parliament but whether the Return be to be made into the Upper House or Lower House I know not For in many Cases we have divided Jurisdictions and the Upper House hath Jurisdiction by it self therefore if a Nobleman hath a Servant that were arrested they might make their Writ of Priviledge returnable before themselves and give him Priviledge And here in this House if one that is a Member of this House and have sate here be arrested sedente Parliamento we are to give him Priviledge But if he be taken before his coming hither it is not in our power to deliver him but we must have the assistance of other Courts in such Causes The use is such in other Causes If the Action be a Mahime whether this be a Mahime or no the Court will not judge until those that have Science in those things affirm it to be so And so when a matter Ecclesiastical or Grammatical is in question the opinion of Civilians or Grammarians is known before the Judgment is given So in this Court we ought to desire Instructions from the Judges of the Realm whether in this Cause by the Law we can grant priviledge or no. For Priviledge there be two Writs issuing out of this House the one is a general Corpus cum Causa and this is granted upon apparent cause of Priviledge as if a Member of the House be taken sedente Parliamento The other Writ is called a Writ of Parliament this is granted when the Cause is to be judged by the Parliament But whether Priviledge be to be granted to this party or no it is not apparent And in the Cause the Lord Keeper is not to be Judge But here the whole Record is to remain and we with the advice and opinion of the Judges are to consult if the party be to have priviledge Therefore seeing the Court hath Coercion in it self let us with the advice of the Judges proceed as we have power For if we give away our Coercion we give away our Jurisdiction M r Serjeant Harris said the Record remaining in Chancery this House is sufficiently possessed of it even as in Case of all the Returns of Knights and Burgesses M r Francis Bacon said The Return is well for the Return is an ensuing of the Writ that must be made under Seal As for taking the assistance of the Judges it is a good course for though we sit here to make Laws yet until the new Law is made the old Law is of force and our Conference with them gives away no resolution from us but taketh advice only from them M r Finch said in my opinion the Return should have been into this House For a Writ of Error sued here the Writ used to be returned hither as it appeareth in 3 E. 3. and 17 Edw. 3. and 1 H. 7. It would seem by Trewinnards Case 38 H. 8. that a Writ of priviledge is never returned but the party appearing the Court proceedeth M r Speaker desired to know of the House if for their better Information they would give him leave to speak which the House willingly granted Whereupon he said For the discharge of my own duty and informing of your Judgments who I know will judge wisely and justly I will deliver unto you what I have learned and what I have observed for ever since the lodging of this Parliament I have thought upon and searched after this Question not particularly for this Cause but this point the priviledge of the House for I judged it would come in question for many occasions The Question is drawn to two Heads the one about the Writ the other about the Return First Whether the Writ might have gone out of this House I will tell you plainly my opinion I beseech you let me not be ill thought of if I be rude in what I say for it is my fault I cannot speak so mildly as some but my manner is that which I speak I speak sharply and somewhat roundly but always with this tacite Condition submitting my self to any better reason that shall be shown me Though any Court of Record hath this Jurisdiction to make out Processes yet this Court cannot Why this may seem strange that every Court in Westminster every Court that hath Causes of Plea every Lords Leet and every Court Baron hath his power that they may make out Process yet this Court being the highest of all Courts cannot how can this be The nature of this House must be considered for this Court is not a Court alone and yet there are some things wherein this Court is a Court by it self and other things wherein it is no Court of it self To know then how we are one House and how we can be divided Houses this would give great light to the Question At the first we were all one House and sat together by a precedent which I have of a Parliament holden before the Conquest by Edward the Son of Etheldred For there were Parliaments before the Conquest This appeareth in a Book which a grave Member of this House delivered unto me which is Intituled Modus tenendi Parliamentum out of that Book I learn this and if any man desire to see it I will shew it him And this Book declareth how we all sat together but the Commons sitting in presence of the King and amongst the Nobles disliked it and found fault that they had not free liberty to speak And upon this reason that they might speak more freely being out of the Royal sight of the King and not amongst the great Lords so far their betters the House was divided and came to sit asunder A bold and worthy Knight at the time when this was sought the King desiring a reason of this their request and why they would remove themselves from their Betters Answered shortly That his Majesty and the Nobles being every one a great person represented but themselves but his Commons though they were but inferiour men yet every one of them represented a thousand of men And this Answer was well allowed of But now though we be divided in Seat be we therefore divided Houses No for if any Writ of Error be brought as you shall see a notable Case in 22 E. 3. this Writ must be returned in Parliament that is to the whole House and chiefly then to the Upper House for we are but a limb of the House Now where a Record is removed upon a Writ of Error given to another Court the manner is that the chief of that Court bring the Writ in his hand to the House But humbly sheweth unto the House that the Record being remitted out of the Court no Execution can go forth though the Judgment be affirmed The Court of Parliament thereupon maketh Transcript of the whole Record and returns the Record again to the Court but if the Judgment be reversed then the Record it self is
of the Proceedings of this House to direct them with his Holy Spirit and a form of Prayer was then read to the House by the Clerk And then afterwards the House proceeding to the Election of a Speaker the said M r Treasurer first speaking did for his own part name and commend the said M r Popham alledging many good reasons and causes moving him thereunto but still leaving nevertheless liberty without prejudice to the residue of the House to name whom they would or thought good And thereupon the whole House with full consent of Voices agreed upon the chusing of the said M r Popham who standing up and much disabling himself in dutiful and reverend wise and alledging for himself many reasonable causes and excuses besought them humbly to proceed to a new Election whereof the House did not allow and so then was he forthwith by the said M r Treasurer and M r Comptroller brought up and placed in the Chair and order thereupon given that the House should the next day Assemble together both to understand her Majesties Pleasure for presenting of the Speaker and also to determine of the case of the said persons newly returned into this House in the places of others yet living On Thursday the 19 th day of January the House again Assembled the Speaker Elect sitting in the Chair The matter began to be debated touching the said Burgesses of whom question was made the day before and the Case was opened by M r Norton a Citizen of London to the effect following viz. That there be Members of this House absent in her Majesties Service as in Embassage or in her affairs in Ireland in whose place new be returned Item some persons be sick of durable Diseases as Agues c. and new be returned in their places Item one M r Flowerden was the last Session Burgess for Castle-Rising in Norfolk and in the Vacation was sick Upon suggestion of which sickness a Writ went to chuse a new Whereupon Sir William Drewry is Chosen and returned for Castle-Rising who now appeareth and M r Flowerden also In the same Vacation one Beamond a Citizen for Norwich is sick of the Gout upon suggestion whereof a Writ went out to chuse a new for Norwich M r Flowerden is chosen returned and newly sworn for Norwich Vide March 18 th Saturday postea The Questions are whether such as be returned in places of persons sick or of persons absent in the Queens Service be Burgesses and the old discharged M r Norton thought the old Burgesses remained and that the said causes of sickness and service are good excuses for their absence but no causes to remove them and to chuse new And for this he alledged divers Precedents as of Doctor Dale Embassador in France and of Sir Henry Sidney Deputy of Wales who having been formerly both of them Members of the House of Commons and absent by reason of both their said Imployments yet when their case was once made known unto the House and there questioned they were still retained as Members of the said House and no new chosen or admitted But however although such absent Members by reason of sickness or Foreign Imployment might be removed yet that ought not to be done upon a suggestion in the Chancery but by the Judgment of the House of Commons upon information thereof M r Serjeant Flowerden M r Robert Snagg M r Seintpoole and M r Serjeant Fleetwood Comptroller argued to the contrary and said that in all these cases new are to be chosen and the old discharged And that it needeth not to have discharge by the Judgment of the House but it sufficeth to make suggestion in the Chancery and to procure a Writ thereupon for a new Election And to question this was to discredit the Lord Chancellor and to scandalize the Judicial Proceedings of that Court. And it was further alledged that not only in these before-recited Cases but also in all others where any new Elections are to be made if the Lord Chancellor send out a Writ upon any suggestion to chuse a new Burgess in the place of an old whether the cause be sufficient or non-sufficient to remove the old or whether the suggestion be true or false yet if a new be returned the House of Commons is to accept the Burgess and to allow the return and the old Burgess remaineth discharged until the matter be further cleared upon the Examination and Judgment of the said House And according to these opinions the new Burgesses Elected and returned in places of men living were received and allowed in the said House M r Flowerden keeping his place for Norwich Sir William Drewry for Castle-Riseing M r Richard Herbert in place of M r Pugh for Montgomery and so the like of the rest that were new Elected Vide the contrary resolved March the 18 th postea Nota That all this was done after the Election of John Popham Esquire the Queens Sollicitor for Prolocutor or Speaker but before his Presentation to the Queen or her Majesties allowance of him The agitation of which question was doubtless either privately muttered in the House or if it were disputed openly it was suddenly and unwarrantably done in respect that the House of Commons have no power to determine or resolve of any thing after the Election of the Speaker till he be presented and allowed as may easily be Collected by all Precedents both of latter and former times Neither did this opinion of the House thus irregularly given take any great effect because the contrary was resolved March 18 postea In the mean time of those foregoing Arguments and Disputations in the House it was signified unto the said House that her Majesties Pleasure was that the Speaker should be presented unto her Highness on the next day following at two of the Clock in the Afternoon in the Upper House On Friday the 20 th day of January the House Assembled together and about two of the Clock in the Afternoon they had notice that the Queen with the Lords Spiritual and Temporal were all set in the Upper House Whereupon the Knights Citizens and Burgesses hasted thither with M r Popham their Speaker and being let in as many as conveniently could and the said Speaker brought up to the Bar at the lower end of the said House by two of the most eminent Personages of the House of Commons he there made his humble excuse and alledged his insufficience for discharge of his place in such manner and form as in like case is usually accustomed But notwithstanding his said excuse her Majesty by the Lord Chancellor signified her Allowance of him for which the said Speaker rendred his humble thanks and Petitioning in the name of the House of Commons for Liberty of Speech for free access to her Majesty and for freedom from Arrests according to the usual form the Lord Chancellor by the Queens Commandment made him a gracious Answer after which ended the Knights Citizens and
and Erisby against the Heirs and Assigns of M r Heronden was read tertia vice conclusa and sent to the House of Commons by Serjeant Gawdy and Serjeant Rolls Memorandum That this day before the passing of my Lord Willoughbies Act Edward Heronden came before the Lords and gave his Assent thereunto Vide concerning this matter on Wednesday the third day of this instant March foregoing Saturday next was appointed by the House for the appearance of M r Oughtred and the Earl of Sussex and Viscount Mountague appointed to talk with the Lady Marchioness about the assurance of her Jointure by a Parliament Nota That this matter was formerly debated on Tuesday the 7 th day of March in the last Parliament de anno 23 Reginae Eliz. and before also in this present Parliament on Tuesday the 9 th day of February last past when Committees were appointed about it Vide also on Monday the 29 th day of this instant March following M r Vinions matter of which Vide antca on Monday the first day of this instant March foregoing was again referred to the Master of the Rolls and M r Serjeant Rodes The Bill lastly for redress of erroneous Judgment in the Kings-Bench was read tertia vice communi omnium procerum assensu conclusa Sir Christopher Wray Knight Lord Chief Justice of England brought in also a certain Record touching a Writ of Error according to a Bill preferred to her Majesty and Signed with her Highness hand concerning the same Which see at large on Monday the 8 th day of this instant March following For though it was this day brought into the Upper-House yet it is likely it was not there publickly read until the said Monday and therefore it is Entred at large on that day in the Original Journal-Book upon which it was read and not upon this day when it was brought into the House by the Lord Chief Justice as aforesaid On Friday the 5 th day of March Seven Bills of no great moment had each of them one reading of which the second being the Bill for following of Hue and Cry was read tertia vice communi omnium procerum assensu conclusa On Saturday the 6 th day of March Four Bills were brought up to the Lords from the House of Commons of which the last was the Bill for the better and more reverent observing of the Sabbath to which the Lords having formerly added some Amendments had sent it back to the House of Commons where it first passed on Monday the 14 th day of December foregoing And upon this instant Saturday the said Commons sent it back again to the Lords with new Amendments upon their Amendments which said new Amendments of the Commons their Lordships did this Morning pass without further Disputation having read them prima secunda tertia vice Vide concerning this Bill of the Sabbath on Monday the 7 th day Tuesday the 8 th day Wednesday the 9 th day Monday the 14 th day and Saturday the 19 th day of December foregoing As also on Wednesday the third day of this instant March last past and on Saturday the 13 th day of the same Month ensuing In all which days it will appear fully how hardly and difficultly it passed either House And yet at last when it was agreed on by both the said Houses it was dashed by her Majesty at the last day of this Parliament upon that prejudicated and ill followed Principle as may be conjectured that she would suffer nothing to be altered in matter of Religion or Ecclesiastical Government Vide itidem on Thursday the 18 th day of this instant March following Memorandum That whereas Ferdinando Clark one of the Ordinary Gentlemen of the Right Honourable Robert Earl of Leicester Lord Steward was committed to the Prison commonly called the Kings-Bench upon a Reddit se in the Kings-Bench for the discharge of his Sureties since the beginning of this present Parliament the Lords at the Motion of the Lord North in the name of the Lord Steward claiming the ancient priviledge of this High Court after the hearing of the Cause between the said Ferdinando and one John Lacy Citizen of London Ordered that the said Ferdinando by vertue of the priviledge of this High Court should be enlarged and set at liberty And further for as much as the said Ferdinando was not Arrested in Execution at the suit of the said John Lacy but was committed after Judgment by the Lord Chief Justice and the rest of the Justices of the Kings-Bench upon a Reddit se for discharge of his Sureties and their Bonds the said Lords Ordered that touching the sum of money recovered by the said John Lacy against the said Ferdinando Clark should stand to such order and mitigation therein as the said Lord Chief Justice of the Kings-Bench shall set down and order for the same And further Ordered that the appearance of the said Ferdinando Clark by rendring himself into the said Court of Kings-Bench was and should be a sufficient discharge of his Sureties and their Bonds and that the Bonds should be redelivered And it was further Ordered that ..... Catesby Marshal of the Kings-Bench should be discharged of the Prisoner and of any Action that might be brought against the said Marshal for the same On Monday the 8 th day of March to which day the Parliament had been last continued on Saturday foregoing the Record touching a Writ of Error which the Lord Chief Justice had brought into the Upper House on Thursday the 4 th day of this instant March foregoing was Entred in the Original Journal-Book and as it should seem read publickly in the House being in manner and form following Memorandum quod Christopherus Wray Miles Capitalis Justiciarius de Banco Regis secum adduxit in Cameram Parliamenti inter Dominos Breve de errore Billam per Reginam indorsat ' Rotul ' in quibus supponebatur error ibidem reliquit transcriptum totius Recordi cum Clerico Parliamenti simul cum praedicto Breve de Errore in Parliamento Et super hoc venerunt Richardus Harbert Johannes Awbery Willielmus Filian Simon Browne in propriis personis suis in Parliamento statim dixerunt quod in Recordo processu praedictis ac etiam in redditione Judicii praedicti manifestè est erratum in hoc quod posiquam Judicium praedictum in loqkela hac versus praefatum Thomam Gonnel redditum fait antequam praedictus Joh. Hunt hunc prosecutus suit impetravit praedictum primum breve de seire facias versus praefatum Richardum Harbert Johannem Awbery Willielmum Filian Simonem Browne Manucaptores praedicti Thomae Gonnell nullum breve de Cap. ad satisfaciendum pro debito damnis praedictis per praefatum Johannem Hunt in placito praedicto prosecutum returnatum suit versus praefatum Thomam Gonnell ubi per consuetudinem Curiae dictae Dominae Reginae coram ipsa
Original Journal-Book of the House of Commons in which it is generally related that the rest of this Forenoon was spent in the agitation of this and such like business yet because neither any particular relation of the Speeches in this business of M r Fitzherbert or of those other aforesaid Passages handled in the said Committee touching Elections is there set down although all the said matter be of very great weight and consequence I have therefore supplied a great part of the same out of the aforesaid Anonymous Journal more particularly mentioned at the beginning of this present Journal Where although all that part of Mr. Serjeant Yelvertons Speech touching Mr. Fitzherberts Election be omitted and which is before very happily supplied out of the Original Journal-Book it self yet the rest or at least the greater part of his Relations before mentioned is set down and is here inserted out of the same with divers other Speeches used and uttered chiefly touching that Question All which some alterations only excepted for order and explanation sake are herein inserted out of the said Anonymous Journal in manner and form following viz. Serjeant Yelverton spake further also after he had finished the Relation of the Committees proceeding touching M r Fitzherberts Election concerning the priviledges of the House In which he declared the Case of the Burgess of Miscread in Cornwall after whose Election the Town refused to deliver up their Indenture to the Sheriff But the party Elected made his Indenture and delivered it to the Clerk of the Crown who filed it with the rest of the Indentures returned by the Sheriffs the Sheriff having Indorsed it upon the Writ But this Indenture was never executed by the Sheriff and yet the Return was holden by the Committees as it should seem to be good Mr. Heile who had been another also of the Committees spake next and shewed the state of this and some other questions handled in that said Committee which were as followeth viz. John c. is returned in the Indenture by the name of Richard and whether this may not be amended by the House Mr. Audeley is returned Burgess for two Towns he having elected for which he will be a New Writ is to be directed to the other Town to chuse another Two Burgesses are returned for one Town One of the Burgesses being mistaken is willing to resign unto the other Whether by the assent of the Sheriff and party this is to be done The Bailiff of Southwark electeth himself by the name of Richard Hutton Gentleman and the Indenture returned by the Sheriff is Richard Hutton Bailiff if this be good Thomas Fitzherbert of Staffordshire being Outlawed upon a Capias utlagatum after Judgment is Elected Burgess of this Parliament Two hours after his Election before the Indenture returned The Sheriff arrested him upon this Capias utlagatum The party is in Execution Now he sendeth this Supplication to this House to have a Writ from the same to be enlarged to have the Priviledge in this Case to be grantable He argued thus That he was not Electable because in the calling and in the electing of parties called there must be chosen Viri idonci But a man Outlawed is not idoneus therefore not Electable Considering this disability holds in all other Causes of Law therefore in this that is the greatest He urged the Authority of 19 H. 7. four parties attainted moved to have their Attainders redressed before they can sit There 't is said a man Outlawed for sorging false Deeds is not eligible to be of the Parliament Then Sir Edward Hobby spake as followeth The party Outlawed is not out of his wits therefore capable and then is a man able to be chosen and idoneus to be a Burgess Only a differrence may be made where the Outlawry is for a Cause Criminal and for a Case personal as in this Cause Is this disability greater that a man Outlawed may not be a Burgess as well as an Attorney to a man or an Executor I think it will stand with the priviledge of this House to deliver him though he were Outlawed Mr. Lewes said that a man Outlawed cannot have priviledge being an Execution upon a Capias Quia frustra Legis auxilium implorat qui in Legem peccat Cardinal Pool would not come into the Parliament House till the Attainder against him was reversed Ignotus quidam Multa sunt quae fieri non debent quae tamen facta tenentur bona It had been a good exception against his Election to say he was Outlawed but 't is no disability to him being Elected Serjeant Yelverton said he could not have the priviledge being in Execution upon a Capias utlagatum after Judgment The Book of 2 Edw. 4. 8. cited to be expresly so And that a Judge reported unto him that in 34 Hen. 8. a Burgess being arrested and in Execution upon a Statute could not have priviledge of the House Whereupon Mr. Finch said he could not tell which to hold or which side to take The Book of 20 Hen. 7. doth prove that there were Elected such as were Attainted and that disability was taken against them The Writ to chuse a Burgess is not Legalem hominem but Idoneum Therefore we ought not to be so strict as if he were to be challenged upon a Jury At the Common Law Outlawry was only for Causes Criminal as for Treason or Felony but this Outlawry in Personal Causes is only by the Statute of 11 Hen. 4. which makes not so great a disability as that at the Common Law On the other side Utlagatus ne Villein cannot be a Champion which is as a Judge to decide then à fortiori he can be no Judge in this House Outlawry is as an Attainder therefore the party so stained is no competent Judge The great Charter is all Tryals ought to be per legales homines parium sitorum The Outlawed man is not of the number of Parium so not to be a Judge Vide 8 Edw. 3. Utlagatus ne poiet estre Mr. Broughton held that a man Outlawed may be a Burgess For in no case is Outlawry disability where a man is en auter droit as to be Executor or Attorney it is no Exception to the party The Case in 38 Hen. 8 Dyer 62. was cited Mr. Hall's man was delivered out of Execution the last Parliament by a Mittimus from the House And though the party be in Execution if not at the Queens suit he is to have the priviledge and yet the party not to lose his debt nor the Sheriff to be charged Vide postea April 5 th Thursday Nota That these Speeches are all transcribed out of the said Anonymous Journal more particularly mentioned at the beginning of this present Journal After which by occasion of a Message sent down from the Lords it should seem this business brake off abruptly at this time And therefore see more concerning it on Friday the 2 d day and on
day last immediately foregoing Mr. Tanfeild speaking next held that a person Outlawed might be a Burgess of the House Wherein he made a difference where exception to the Burgess grew upon matter before the Election and where after If the exception grew after then a Burgess Elected must not be one of the House If exception be taken to this Election and this Outlawry alledged to disable him the Statute of 23 Hen. 6. cap. 15. will disable most of this House for they ought not to be Burgesses now if this be not a good Election Thence it follows that the party Elected is to have his priviledge And though the Common Law doth disable the party yet the priviledge of the House being urged that prevaileth over the Law Then said Mr. Speaker I desire that I may be heard a word not that I have any Voice or assent to give though I am of the House but because I am a Servant to the House and have somewhat to speak It appertaineth to my duty and place which I desire to have leave to utter for my Speech shall not tend to meddle to decide the Question but only to inform the House of my knowledge and to do that duty which I think belongeth to my self The Questions delivered by the Committees were these two First Whether Mr. Fitzherbert were any Member of the House And secondly If he were whether to have the priviledge It hath been my manner ever since my first practice to observe strange learning especially such as appertaineth to the Law as in this of the priviledge of this House therefore I will inform what I have learned First this Writ of priviledge must go from the Body of this House made by me and I to send it into the Chancery and the Lord Keeper is to direct it Now before we make such a Writ let us know whether by Law we may make it or whether it will be good for the Cause or no. For my own part my hand shall not sign it unless my heart may assent unto it And though we make such a Writ if it be not warrantable by Law and the proceeding of this House the Lord Keeper will and must refuse it No man shall stand more for the priviledge of this House than I will and what is the priviledge of this House is meet should be observed To the matter first there hath been inforc't her Majesties Commandment I obey any Commandment of her Majesties knowing them to be Great and Reverend as far as any body But I do not take it that we have received any such Commandment for her Majesties Commandment by the Lord Steward was to every man that stood Outlawed We have no such Command Now whether a Man Outlawed may be a Burgess I hold it no question but that a Man Outlawed Attainted or Excommunicated or not lawfully Elected if he be returned out of all doubt is a lawful Burgess This is proved by Book Authority and express Statutes as that of 11 H. 4. Cap. 1. a. a Knight untryed returned shall lose his Wages therefore allowed by the Statute to be a Knight though untruly returned and the penalty is only to lose his Wages Another Authority is in 8 H. 8. Cap. 10. And if we go to examine persons Elected to Parliament we shall then dissolve all Parliaments and call in question all former Laws made by reason there were not lawful and able Law-Makers If it appeareth once unto us by Record that such a Man is Burgess we must believe the Record and make no question of it For if such matters shall be examinable by us then must we try it by witness from the place where the fact was and so shall those a great way hence be driven by witness to prove whether we be lawful Burgesses or no which will be very inconvenient But matters of Record such as appear unto us to be recorded these are to be examined by us for the Record is to be seen So that for priviledge I would grant it if it were Sedente Parliamento eundo redeundo or manendo to every Member of this House But the Cause with Mr. Fitzherbert being that after his Election and before his Return he is Arrested and in Execution by a Capias after Judgment whether this Man be to be priviledged or no. I will but speak what I think and what I have learned and I have good precedents for In this Cause he is not to have priviledge For the question is whether the Sheriff be to take notice of this Nomination or not before he is returned unto him Elected And I think not for it appeareth not unto the Sheriff before he is returned whether he be Elected or not So this Nomination is not a thing whereof he is tyed to take notice In Ferris and Tenures Case in 38 H. 8. fol. 60. You may see this Case Thomas Thorp 31 H. 6. was chosen Speaker of the Parliament and after his Election and before the Parliament upon a Suit betwixt the Duke of York and him Thorp was taken in Arrest and put in Execution Hereupon he put up his Petition to the House of Parliament to have the priviledge Upon the resolution of both Houses it was yielded he could not have the priviledge of the House This was also in H. 6. time and in 2 Ed. 4. fol. 8. I think the opinion there of Danby is referred to this Cause And because Mr. Fitzherbert stood Outlawed upon Judgment a matter that is recorded it were meet the whole cause were brought before us that we might the better judge upon it And I think this course best standing with the gravity of this House before that we made out any Writ to grant a Habeas Corpus cum causa returnable in Chancery and the Sheriff to appear the whole matter being transmitted out of the Chancery hither we to judge upon the whole Record as it shall appear And upon this Writ granted the Sheriff bringing up the party it shall be no escape in the Sheriff nor the party shall not lose his Action of Debt though he be delivered This Course was well liked and the Motion agreed unto by the greater part of the House Vide Mar. 1. antea Mar. 17. post Apr. 5. Thus far out of the before-mentioned Anonymous Journal touching the aforesaid Question how far an Outlawed Man might be a Member of the House The which and the further proceeding therein being by the Speaker interposing himself for this time reconciled and upon the matter agreed upon there followed the agitation of the great business touching the danger of the Realm and supply to be given to her Majesty which had been before treated of by two select Committees of either House as may fully appear by the Report of that which was done at the said Committee made this day unto the House by Sir Robert Cecill who had been one of them Which being very exactly set down in the Original Journal-Book it self of
Cancelled and rased This I read in my Book For in this Case whatsoever a man tells me 〈◊〉 believe it not unless I see it written Non lego non credo in these Cases In the twenty third of the Queen I was of Councel with one in a Cause where we tryed all means to reverse a Judgment and brought a Writ of Error in the Parliament and the Writ was issuing out of the Parliament and upon the fieri facias was set Domina Regina and it was under the Great Seal of England and the Writ was returned in Parliament So this is plain the Writ is always returnable in Parliament but if in Parliament then of the Upper House for of that House we are but a Limb. This Writ I have seen then thus returned but never any man saw a Writ returnable in the Lower House so for this I hold the Writ cannot be returnable into this House But now for the Authority we have for though this be true I say yet I speak not to take any priviledge from this House for some things there are wherein we have Authority all of us But this is certain whatsoever we do sedente Parliamento it is the Act of the whole Court for the Lords without the Commons and the Commons without the Lords can do nothing Now then at the first before the division of the House all Writs were returned proximo Parliamento but since the division of the House it hath been always used and plainly it must be returned into Chancery And to say we cannot have notice of it nor cannot judge upon the Record being in Chancery plainly we may as well as we do upon the Return of every Burgess which is made into the Chancery and the Cause is all one And the Chancery in making the Writ will not alter from that their Warrant made from this House which must be according unto ancient form for waiting the other day upon my Lord Keeper by your Commandments for the making of this Writ I desired to have a recital added in these words Quòd cùm existente Parliamento captus fuit c. with the recital of the Cause of priviledge My Lord Keeper conferring with the Judges upon it would not allow it but thought better the usual form of Habeas Corpus should be kept without any suspicion of priviledge until there appeared a Cause of priviledge for the party As for the Book of 38 H. 8. Trewinnards Case recited in my Lord Diers I have heard great learned men say that that Cause is no good Law and that the House did more than was warrantable Now for the Motion of Conference with the Judges the Case of Thorpe 31 H. 6. is not able for this point I have the Record Thorpe was Speaker in that Parliament The Parliament being Summoned to be in June it was Prorogued until September in the mean time Thorpe was taken in Execution by the Duke of York he notwithstanding this thought to have had the priviledge of the Parliament At the next Sessions the matter being greatly considered whether he could have a priviledge or no a Conference was had in the Cause with the Judges the Judges being required in humble sort refused except it were so that the House did command them for in the House of Parliament the chief Judges and their Judgments are controulable by the Court but if the House did command them they would be willing to inform them what in their opinions they knew and thought This they did in the great Cause of Thorpe and I think we should do well in doing the like Now another thing is to be considered for Judicis Officium est ut res it a temperari c. The consideration of Time must accompany a Judges Office the Parliament draweth to an end and this would be done with expedition so the party was appointed to have his Councel the next Morning in the Parliament and they to be heard and have the advice of the Judges Vide the Resolution and Conclusion of this business upon Thursday the 5 th day of this instant April ensuing Thus far out of the aforesaid Anonymous Journal the residue of this days Passages and part of the next are inserted out of the Original Journal-Book it self M r Francis Bacon one of the Committees in this Bill for relief of Maimed Souldiers and Mariners appointed on Monday the 2 d day of this instant April foregoing shewed the meeting and travel of the said Committees and sundry Amendments thought good to be offered by them to this House and shewing the same Amendments with the reasons of them to the House the same Amendments were well liked of by this House and assented to be inserted into this said Bill and after the twice reading of the said Amendments the said Bill so being amended was upon the question Ordered to be ingrossed Post Meridiem Four Bills of no great moment had each of them one reading of which the first being the Bill for Naturalizing of Justin Dormer and George Sheppy born beyond the Seas had its first reading On Wednesday the fourth day of April M r Barker one of the Committees in the Bill concerning Spinners and Weavers who had been appointed on Monday the 26 th day of March foregoing shewed the meeting and travel of the Committees and their Amendments to the Bill praying the reading of the same Amendments which being read and ordered by the House to be inserted into the Bill the same Amendments were afterwards twice read and the Bill was upon the Question Ordered to be Ingrossed M r Wroth one of the Committees in the Bill concerning Brewers shewed the meeting and travel of the Committees and their Amendments to the said Bill and prayeth the reading of the same Amendments which being read and Ordered by the House to be inserted in the said Bill and also twice read afterwards was upon the Question Ordered to be ingrossed The Bill for Explanation of a Branch of a Statute made in the twenty third year of her Majesties Reign Intitled an Act to retain the Queens Majesties Subjects in their due obedience with some Amendments to the same was read the second time Upon which divers Speeches passed in the House before the said Bill was committed some of them being of very good moment Which because they are omitted in the Original Journal-Book it self are therefore supplied out of the often before recited Anonymous Journal in manner and form following Sir Thomas Cecill Doctor Lewen M r Sands Sir Thomas Heneage Sir Edward Dimock and some others spake diversly to this Bill touching the Explanation of a Branch of the Statute made in Anno 23 Regin Eliz. for reducing disloyal Subjects to their due obedience as is aforesaid Sir Walter Raleigh said In my conceit the Brownists are worthy to be rooted out of a Commonwealth But what danger may grow to our selves if this Law pass it were fit to be considered For it is to be feared that