being insisted upon that Assidavits should not be admitted 1. Because it makes the Parliament lame without the Chancery 2. It entituleth the Chancery to judge of Returns 3. Affidavits are oftentimes cautelously made by Council or Parties 4. Witnesses produced Viva voce by Words Actions Gestures or the like may discover much whereby the Committee may judge It was likewise informed by Sir Edward Coke late Lord chief Justice That in the Parliament when he was Speaker which was 35. Eliz. Affidavits were not used nor since until of late 5. Though the Committee examine not on Oath yet they may punish any that shall testifie untruly of which an instance was given in the last preceding Parliament in the Case of one Damport It was Resolved That all Affidavits to be taken in any Court concerning Elections Returns or any thing depending thereupon should be rejected and not hereafter to be used CHAP. V. Members chosen in several places IT falling out ordinarily that one person is chosen and returned to serve for several places it is in his Election to make his choice in the House in his own person for what place he will serve and waive the other Election so as a Writ may go out for a new Election for such place waived that the number may be full but if he shall not do it by the time which the House shall appoint then it hath been said the House will appoint for what place such person shall continue a Member and that Writs may go out for the other places but Quaere whether it hath been done Oftentimes on the First day of the meeting of the House as soon as the Speaker hath been approved and sometimes before such persons as have been so doubly returned have made their choice In the first Session of Parliament 1º Iacobi the same day Sir Edward Phelips was chosen Speaker before he was presented to the King he signed a Warrant as Speaker by command of the House for Election of another person in the place of Sir Francis Bacon being chosen in two places And in the same Session the same day after the Speaker had taken his place divers Members who were severally returned as elected in several places made their choice for what places they would stand and new Writs ordered The Parliament beginning the 13. April 1640. and the Speaker being presented the 15th upon the 16th day divers made their choice upon such double Returns The Parliament beginning 3. Novemb. 1640. Upon a long Debate for granting time for Elections on double Returns of this nature It was resolved That all such as are doubly returned shall make their choice for which place they will serve on Monday next 9. Martii 21. Iacobi Resolved That all Members of this House doubly returned shall make their Elections for which they will serve and that those in the House shall do it presently or else new Writs to issue for both CHAP. VI. New Writs for Vacant Places A General Order hath usually been made in the beginning of the Session to authorize the Speaker to give Warrant for new Writs in case of Death of any Member or of double Returns where the party makes his choice openly in the House during that Session so it was Ordered in the beginning of the Parliaments 18. Iac. and 21. Iacobi Where such general Order is not made Writs have issued by Warrant of the Speaker by virtue of special Order upon Motion in the House This Warrant is to be directed to the Clerk of the Commonwealth then called the Clerk of the Crown in Chancery by Order of Parliament 13. Novemb. 1601. CHAP. VII Rules and Method of Debates in the House VVHen a Motion hath been made the same may not be put to the Question until it be debated or at least have been seconded and prosecuted by one or more persons standing up in their places as aforesaid and then the same may be put to the Question if the Question be called for by the House or their general Sense be known which the Speaker is to demand unless any Member stand up to speak When a Motion hath been made that Matter must receive a determination by a Question or be laid aside by the general Sense of the House before another be entertained An instance is in the Journal 28. Iune 1604. A Motion being made another interposed a Speech tending to another Business but it was answered That there was no President for that Speech to be used before the other Motion which was made before had received an Answer and an end And the House did accordingly determine the first Motion in the first place 4. Decemb. 1640. Ordered That till the Business in agitation be ended no new Motion of any new Matter shall be made without leave of the House If the Matter moved do receive a Debate pro contra in that Debate none may speak more then once to the Matter And after some time spent in the Debate the Speaker collecting the Sense of the House upon the Debate is to reduce the same into a Question which he is to propound to the end the House in their Debate afterwards may be kept to the Matter of that Question if the same be approved by the House to contain the substance of the former Debate After such Question is propounded any Member may offer his Reasons against that Question in whole or in part which may be laid aside by a general consent of the House without a Question put But without such general consent no part of the Question propounded may be laid aside or omitted and although the general Debates run against it yet if any Member before the Question be put without that part stand up and desire that such Words or Clause may stand in the Question before the main Question is put a Question is to be put Whether those Words or such Clause shall stand in the Question The like Method is observed where any other Alteration is debated upon to be made in a Question propounded but upon putting a Question for such Addition Alteration or Omission any person who hath formerly spoken to the Matter of the Question may speak again to shew his Reasons for or against such Alteration Addition or Omission before such Question be put When the Speaker the House calling for a Question is putting the same any Member that hath not before spoken to the matter may stand up before the Negative be put 13. Junii 1604. A Bill touching a Subsidy of Tonnage and Poundage having been formerly upon a third Reading recommitted was returned And a Proviso being tendred for Chester which was twice read the Question was put for Commitment in the Assirmative but before the Negative was put one stood up and spake to it which was admitted for Orderly because it is no full Question without the Negative part be put as well as the Affirmative Every Question is to be put first in the Affirmative viz. As many as are of
a Contempt after the Writ of Summons but before the Election Ordered upon the Question That he shall have his Priviledge by Writ of Habeas corpus Sheriff 1º Iacobi 2d Sess Sir Iohn Peyton Knight for Cambridge being returned the last Session and since chosen Sheriff Mr. Speaker moved to know the pleasure of the House Whether he should attend his Service here And it was resolved upon the Question in the House he should attend his Service here Priviledge to Servants Priviledge was also granted to the Servants of Members during the sitting of Parliament 16º Febr. 5º Eliz. Robert Parker Servant to Sir William Woodhouse Knight for Norfolk being attached in London at the Suit of one Baker in a Trespass had a Warrant of priviledge notwithstanding Judgement given against him for Four Marks 20º Febr. 18º Eliz. 1575. Upon the Question and also upon Division of the House Edward Smaley Servant unto Arthur Hall Esq one of the Burgesses for Grantham being arrested upon an Execution had Priviledge 16º Decembr 44º Eliz. Anthony Curwen Servant to William Huddleston Esq one of the Knights of Cumberland being arrested upon a Capias ad satisfaciendum out of the Common-Pleas for Six pounds Debt and Forty shillings Damages and detained in Execution a Supersedeas was awarded and he was delivered 11º Maii 19º Iacobi The Undersheriff of Middlesex was called to the Bar for causing Alexander Melling Servant to the Chancellor of the Dutchy to be arrested he denied he knew him to be his Servant Mr. Speaker let him know the House had ordered him to have Priviledge and therefore ordereth the Undersheriff to discharge him 2. Session of the Parliament 1º Iacobi Sir Edward Sandys moveth a breach of Priviledge by Sir Robert Leigh a Justice of Peace for committing his Coachman to Newgate Sir Robert Leigh was sent for by the Serjeant and an Habeas corpus for the prisoner Sir Robert Leigh being brought to the Bar acknowledged his fault and was discharged and so was the prisoner 3º Maii 1606. Valentine Syre Servant and Bag-bearer to the Clerk of the Commons House being arrested upon an Execution was by Order and Judgement of the House enlarged 7º Sep. 1601. Woodal Servant of William Cook Esq a Member of the House being arrested and in prison in Newgate the Serjeant at Arms was presently sent to Newgate to bring him to the House sedente Curia 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. Iuly 1607. Iohn Pasmore the Marshals man being sent for fnd brought to the Bar for arresting Iohn Iessop Waterman Servant to Sir Henry Nevil a Member of the House he denied that he knew he was Sir Henry's Servant until afterwards notwithstanding he took an Assumpsit from him to answer the Action The House thought fit to commit him to the Serjeant till the House's pleasure were further known and till he had discharged the Assumpsit and paid the Fees 17. Iune 1609. Upon a Report of 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 followed it and Fisher at whose Suit he was arrested 4º Junii 19º Iacobi Johnson a Servant to Sir James Whitelock a Member of the Commons House was arrested upon an Execution by Moor and Lock who being told Sir Iames Whitelock was a Parliament man Fulk one of the prosecutors said He had known greater mens men then Sir Iames Whitelock taken from their Masters heels in Parliament time This appearing Lock and Moor were called in to the Bar and by the Judgement of the House they were sentenced 1. That at the Bar they should ask forgiveness of the House and of Sir Iames Whitelock on their knees 2. That they should both ride upon one horse bare-backed 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 Curia which judgement was pronounced by Mr. Speaker against them at the Bar upon their knees 28º Aprilis 22º Iacobi A Warrant was Ordered 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 Goods That the Members of this House have also Priviledge for their Goods is not without some President 12. March 1606. Complaint was made by Mr. Iames a Burgess of Parliament 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 Adjournments During the Adjournment like Priviledge was granted and affirmed In December 1606. Thomas Finch a servant to Sir Nicholas Sandys Knight 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 Finch was an Attorney at Law yet it being avowed 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 President of the Baron of Walton's Solicitor and Huddleston's Solicitor in the time of Queen Elizabeth upon the Question Finch was priviledged and delivered according to the said Presidents During that Adjournment a Suit was prosecuted in the Court of Wards against Nicholas Potts Esq and Francis Wethered Gent. Committees of a Ward which concerned Mr. Nicholas Davyes servant to the then Speaker as Assignee of the Ward The Speaker by virtue of a former general Order of the House wrote a Letter to Sir Cuthbert Pepper Surveyor of the Court of Wards and Liveries to make known to the Court That the said Davyes was one of his Clerks and nearest Servants and the Priviledge now as warrantable as in time of sitting and therefore prayed him and the Court to take notice of it During another Adjournment in March following the Speaker warranted by the like general Order at the desire of Sir Edmund Ludlow who was summoned to attend the Execution of a Commission out the Chancery wrote a Letter to the Commissioners to excuse his attendance and that he should not be prejudiced by his
knew no such Priviledge touching Subpoena's and would not allow it unless the House did prove it had been allowed also in that Court of Chancery whereupon Presidents were directed to be viewed but within few days after the Parliament ended Yet the practice in succeeding times declares the Priviledge as appears by the Instance following which was the next Year after and these that follow with a multitude more which might be mentioned 27º Eliz. One Kirle having caused a Subpoena out of the Star-Chamber to be served on a Member of the Commons House and for want of Appearance taken out an Attachment and inforced the payment of Money to discharge the same the said Kirle was committed till he had paid Costs to the person served and made a submission to the House on his knees at the Bar. 15º Maii 1604. A Subpoena out of the Chancery to appear was served on the person of Sir Robert Needham Knight a Member of Parliament upon complaint thereof the Serjeant was sent to Attach the body of him who served the Subpoena 7º Maii 1607. The Serjeant was sent for Edward Throckmorton for serving a Subpoena on Sir Oliver Cromwel 14º Maii 19º Jacobi Upon complaint of the service of a Subpoena on a Member of this House Sir Edward Coke vouched a President 10º Edvardi 3 i That a Subpoena being served on the Clerk of this House the party was committed for breaking the Priviledge of this House 4º Maii 1607. A Subpoena out of the Exchequer being served on Sir R. Pawlet a Member of the House the House thought fit to grant Priviledge and that the same course should be taken as in other the like cases are usual viz. The Serjeant by his Mace to Attach the parties Delinquents and to bring them to the Bar to receive the Judgement of the House and Mr. Speaker the next day wrote a Letter to the Lord chief Baron that no further Proces do issue against the said Sir R. Pawlet 3º Decemb. 19º Jacobi Upon occasion of a Subpoena served on Mr. Breeriton it was agreed by the whole House That the serving of a Subpoena upon a Member of this House knowing him to be a Parliament man is a Breach of Priviledge and Napper who served the Subpoena was committed Arrest 33º Eliz. The Sheriffs of London were fined by the Commons and sent to the Tower for not delivering a Burgess arrested for Debt sitting the Parliament 6 April 1593. The Serjeant at the Mace who arrested Mr. Neal a Member of this House upon an Execution as also Weblin at whose Suit he was arrested contrary to the Priviledge of this House were this day brought to the Bar and were both committed prisoners to the Tower and the Serjeant at Arms attending this House was ordered to deliver them over to the Lieutenant of the Tower Vtlary 13. May 1607. Nicholas Allen an Atorney and Palmer at whose Suit Mr. Martin a Member of this House was outlawed were ordered to be sent for by the Serjeant and brought to the Bar to answer their Contempt Attachment In the same Parliament there being Complaint that an Attachment was taken forth against Mr. Bellingham a Member of this House out of the Court of Chancery for a Contempt the House ordered to have Priviledge and a Letter was ordered to be sent to Mr. Evelin one of the six Clerks to stay the Suit Issues A Writ of Petition being issued out a Writ was directed to the Sheriff to levy xx.l. Issues upon Sir Robert Oxenbridge for Non-appearance the same was complained of and the House granted Priviledge with this That if the Issues were not discharged before the next day at night the parties Delinquent were the day after to be brought to the Bar by the Serjeant Tryals 14. May 1576. Sir Edward Montague a Member of the House was warned to attend a Tryal in London which was to be had against him and was by Order of the House priviledged and the party that gave the warning was summoned to appear at the Bar the next morning 21. Febr. 1588. Upon Motion made by divers Members of the House having Writs of Nisi prius brought against them that Writs of Supersedeas might be awarded in respect of the Priviledge of this House due to the Members It was Ordered That those Members of the House who have occasion of such Priviledge should declare their Case to the Speaker who shall thereupon direct the Warrant of this House to the Lord Chancellor for awarding such Writ of Supersedeas 3º Martii 18º Jacobi Upon a Report from a Committee appointed to consider of a way of staying Tryals against Members of the House That by several Presidents the Custom appeared to be in such Cases That on Motions and Orders in the House Letters were written to the Justices of Assize for stay of Tryals against Members of the House which Letters were entred in the Journal Book and that it belongeth to the Clerk to write the same It was thereupon resolved That the former course of writing Letters to the Justices of Assize should be held according to former Presidents 10º Junii 1607. Sir Robert Johnson a Member of the House moved for a Letter to stay a Tryal against him in the Exchequer which was granted as appeareth by the Entry on the 13th day when a Petition of Sir Robert Brett was read against that Priviledge The Priviledge formerly granted was affirmed upon this Reason That no man should have any thing to withdraw him from his Service in the House The like 14º Feb. 18º Jacobi And so much this Priviledge hath been insisted on by the House that it hath been a Question Whether any Member of the House could consent that himself should be sued during the Session because the Priviledge is not the persons so much as the Houses And therefore when any person hath been brought to the Bar for any Offence of this nature the Speaker hath usually charged the person in the name of the whole House as a breach of the Priviledge of the House And when 3. Iune 1607. Sir Thomas Holeroft a Member of the House had occasion to sue at Law and was sued with which he was content and desired the leave of the House there was a Question whether the House should give leave for a breach of Priviledge and it was resolved The House might give leave Iuries 7º Maii 1607. Sir Thomas Bigg and Sir Thomas Love being returned upon an Attaint in the Kings Bench it being moved that in this Case they ought to have Priviledge it was so ordered and the Serjeant sent with his Mace to deliver the pleasure of the House to the Secundary the Court sitting 22º Novemb. 1597. Sir Iohn Tracy a Member of this House being at the Common-Pleas Bar to be put upon a Jury the Serjeant at Arms was presently sent with his Mace to fetch him thence to attend his Service in the House Commitment April 12º Iacobi Sir William Bampsield was committed by the Lord Chancellor for