be made of a Knight of a Shire within England St. 10. An. ch 23. Sheriff c. to swear each Freeholder if by any Candidate or Voter required Sheriff c. shall enter the Place of the Elector's Freehold of his Abode and Jurat against the Name of every Voter sworn and with in twenty Days after the Elections deliver the Poll-Books upon Oath to he Clerk of the Peace c. every Free-holder before he is admitted to Poll shall if required by the Candidates or any of them or any other Person having a Right to Vote first take the Oath in this Act contained which Oath the Sheriff c. is to administer And in taking the Poll the Sheriff c. shall enter not only the Place of the Elector's Freehold but also the Place of his Abode and Jurat against the Name of every Voter who shall be tender'd and take the Oaths hereby required and the Sheriff or returning Officer shall within twenty Days after such Election deliver over upon Oath to be administred by the two next Justices of the Peace one of the Quorum unto the Clerk of the Peace of the same County all the Poll-Books of such Elections and in Counties where there are more than one Clerk of the Peace the Original to one and attested Copies to the rest to be kept among the Records of the Sessions of the Peace for the County And of an Act 7 Guil. III. Intituled G. Britain An if any Quaker Sheriff c. to admit any Quaker to vote during the Act 7 W. 3. and accept his Affirmation to the Effect of the Oath according to the said Act instead thereof and enter Affirmat against the Name of such Quaker during the Continuance of an Act 7 Guil. III. Intituled An Act that the solemn Affirmation and Declaration of the People called Quakers shall be accepted instead of an Oath in the usual Form shall upon such Election if required by the Candidates or any of them declare the Effect of the said Oath upon his solemn Affirmation in such Manner and Form as is directed by the said Act every such Quaker shall be capable and admitted to give his Vote for the Election of any such Member within England and every Sheriff c. is hereby authorized and required to accept such Affirmation instead of the said Oath and shall enter Affirmat against the Name of every such Quaker That any of the Electors present 2 St. 12 Annae Praeses of the Meeting upon Request of any Elector of a Shire or Stewartry in Scotland to swear either Elector or Candidate to their Estates suspecting any Person or Persons either Electors or Candidates for Shires or Stewartries in Scotland to have his or their Estates in Trust and for the Behoof of another may require the Praeses to the Meeting to tender the Oath in this Act contained and the said Praeses is required to administer the same Returning Officers are ordained to make their Returns of the Persons elected by the Majority of the Freeholders inrolled G. Britain and those admitted by them Returning Officers to return Persons elected by a Majority of Freeholders in rolled and those admitted by them with Liberty of objecting c. reserving always the Liberty of objecting against the Persons admitted to or excluded from the Poll as formerly All Sheriffs of Shires and Stewarts of Stewartries shall Sheriffs and Stewarts under 50 l. Penalty half to the Queen half to him that sues before the Court of Session c. to make publick Intimation at the Parish Churches within their Jurisdictions three Days before the Diet of Elections under the Pain of 50 l. Sterling one Moiety whereof shall be to the Queen Her Heirs and Successors and the other to the Person or Persons who shall sue for the same to be recovered before the Court of Session by any Action summarily without abiding the Course of the Roll make the publick Intimations required by the Laws of Scotland at the several Parish Churches within their respective Jurisdictions at least three Days before the Diet of Elections That the Oath or Affirmation which see ib. the Officer or Officers presiding St. 2 G. 2. ch 4. Presiding Officer to administer the Oath or Affirmation on Forfeiture of 50 l. or taking the Poll at such Election is and are hereby impowered and required to administer gratis if demanded upon Pain to forfeit the Sum of Fifty Pounds of lawful Money of Great Britain G. Britain to any Person that shall sue for the same to be recovered with full Costs by Action of Debt Bill Plaint or Information in any Court of Record at Westminster wherein no Essoign Protection Wager of Law or more than one Imparlance and if the said Offence shall be committed in that Part of Great Britain called Scotland then to be recovered together with full Costs by summary Action or Complaint before the Court of Session or by Prosecution before the Court of Justiciary there for every Neglect or Refusal so to do and no Person shall be admitted to poll till he has taken and repeated the said Oath in a publick Manner in Case the same shall be demanded as aforesaid before the returning Officer or such others as shall be legally deputed by him If any Sheriff Mayor Sheriff or other returning Officer admitting any to be polled before sworn to forfeit 100 l. Bailiff or other returning Officer shall admit any Person to be polled without taking such Oath or Affirmation if demanded as aforesaid such returning Officer shall forfeit One hundred Pounds to be recovered as aforesaid together with full Costs and if any Person shall vote or poll at such Election without having first taken the Oath or if a Quaker having made his Affirmation as aforesaid G. Britain if demanded such Person shall incur the same Penalty Voters to incur the like Penalty Returning Officer after reading the Writ to take the following Oath which the Officer is subject to for the Offence above mentioned That every Sheriff Mayor Bailiff Headborough or other Person being the returning Officer of any Member to serve in Parliament shall immediately after the Reading the Writ or Precept for the Election of such Member take and subscribe the following Oath which see ante Which Oath any Justice or Justices of the Peace of the said County City Corporation or Borough where such Election shall be made or in his or their Absence any Three of the Electors are hereby required to administer and such Oath so taken shall be entred among the Records of the Sessions of such County City Corporation and Borough as aforesaid If any returning Officer Penalty of wilful Perjury Elector or Person taking the Oath or Affirmation herein before mentioned shall be guilty of wilful corrupt Perjury or of false affirming and be thereof convicted by due Course of Law he shall incur and suffer the Pains and Penalties which by Law are enacted or inflicted in Cases of wilful and corrupt Perjury That all
of the Realm and every particular Member thereof either in Person or by Representation upon their own Free Elections are by the Laws of this Realm deemed to be personally present 1 Jac. 1. c. 1. Sir Edward Cook in his Epistle to the 9th Report says There is a threefold End of this great and honourable Assembly of Estates First That the Subject might be kept from offending that is That Offences might be prevented both by good and provident Laws and by the due Execution thereof Secondly That Men might live safely in Quiet And thirdly That all Men might receive Justice by certain Laws and Holy Judgments that is to the End that Justice might be the better administred that Questions and Defects in Laws might be by this High Court of Parliament planed and reduced to a Certainty and that Claims of Right might be adjudged and determined This Court being the most supream Court of this Realm is a Part of the Frame of the Common Laws and in some Cases doth proceed legally according to the ordinary Course of the Common Law The House of Lords cannot exercise any Power as an House of Parliament Sir R. Atkin's Argument f 51. or as a Court for Error without the House of Commons be in Being at the same Time Both Houses must be prorogued together and dissolved together By the Law Ib. 59. Parliaments ought to be very frequent Before the Conquest as it is untruly call'd by the Law Parliaments were to be held twice a Year as appears by King Edgar's Laws So it was ordained by King Alfred By the Stat. of 4 Ed. 3. c. 14. Parliaments ought to be once a Year and oftner if need be And in 36 Ed. 3. c. 10. to be once a Year without Restriction if need be By 16 Car. 2. c. 1. these Acts are declared to be in Force And further it is declared and enacted That the holding of Parliaments shall not be discontinued above three Years at the most The Parliament is a Court of very great Honour and Justice Plow Com. 398. 11 Col. 14 The Parliament can do no Wrong 6 Col. 27. Sir R. Atkyne Arg. 60. of which no Man ought to imagine a Thing dishonourable An Offence committed in Parliament is a very very high Offence but the higher it is the more proper it is for their Judicature and that Court is arm'd with a Power to punish the highest Offences and the highest Offenders Yet a Parliament may err Plow Com. 397. 9 Col. 106. Ibid. for they are not infallible but the Law hath provided a Remedy against those Errors and a way to reform them A subsequent Parliament may reform the Errors of a preceeding Parliament But to say that they will be partial Ibid. or unjust or corrupt or do any Thing out of Malice is to raise a Scandal upon the whole Nation Ibid whose Representative they are If any Offence whatever be committed in the Parliament by any particular Member See Husband's Collections ante p. 1. p. 67. it is an high Infringment of the Right and Privilege of Parliament for any Person or Court to take the least Notice of it till the House it self either has punish'd the Offender or referred them to a due or proper Course of Punishment To do otherwise would be to make the Highest Court an Offender and to charge them with Injustice Their Right and Priviledge so far extends Ib. 61. that not only what is done in the very House sitting the Parliament but whatever is done relating to them or in pursuance of their Order during the Parliament is no where else to be punish'd but by Themselves or a succeeding Parliament tho done out of the House Either House doth ever for the most part shew it self so careful to keep firm Correspondence with the other Sir Simon d'Ewes Journal 186. as that when a Bill hath pass'd either of the said Houses and is sent to the other it doth for the most part pass and is neither dash'd nor alter'd without very great Cause upon mature deliberation and usually also not without Conference desir'd and had thereupon that so full Satisfaction may be given to that House from which the Bill so rejected or alter'd was sent Pessima Gens humani Generis always abhorr'd a Parliament Preface to Petyt's Miscel Parlementar And the Reason thereof is demonstrative because they all knew they shou'd then be call'd to an impartial and strict Account and be punish'd according to their Demerits It was said by the Lord Bacon to Sir Lionel Cranfeild Ibid. newly made Lord Treasurer That he would recommend to his Lordship and in him to all other great Officers of the Crown one considerable Rule to be carefully observ'd which was Remember a Parliament will come The King at no Time stands so highly in his Estate Royal Petyt 's Miscel Parliament 6. Vide Cromp. Jur. 10. as in the Time of Parliament wherein the King as Head and they as Members are conjoyn'd and knit together in one Body Politic So as whatsoever Injury during that Time is offer'd to the meanest Member of the House is to be judged as done against the King's Person and the whole Court of Parliament The Prerogative of Parliament is so great Ibid. That all Acts and Processes coming out of any inferior Courts must cease and give place to that the highest Statutes in England are made not only by the Princes Pleasure Fortescue 42. but also by Assent of the whole Realm So that of Necessity they must procure the Wealth of the People and in no wise tend to their hindrance It cannot otherwise be thought Ibid. but that they are replenish'd with much Wit and Wisdom seeing they are ordain'd not by the Device of one Man alone or of a hundred wise Counsellors only but of more than three hundred learned Men now 558 that ought to be freely Elected by the People Acts of Parliament are made with such Gravity Wisdom 11. Co. 63. Fortesc c. 18. c. 40. and Universal consent of all the Realm and for advantage of the publick Wealth that they are not from the General and ambiguous Words of a Subsequent Act to be abrogated Acts of Parliament have been tender of racking the King's Subjects for Words 1. Mod. Rep. 234 and the Scripture Discountenances Mens being made Transgressors for a Word Every Proviso in an Act 1. Siderf 155. is not a determination what the Law was before for they are often added for the Satisfaction of those that are ignorant of the Law The King of England can neither by himself or his Ministers Fortescu p. 84. impose any Tallages or other Burdens on his Subjects or alter their Laws or make new Laws without Assent of the whole Kingdom in Parliament CHAP. III. Of the Power and Authority of Parliaments THE Parliamentary Power Hollinsh Vol. 1. p. 173. as it is in the Legislative Capacity consisting of the Agreement and Act of all the three Estates King Lords and Commons to make it Binding it imports no
this Realm and with every one of them as the Quality of the Persons and Matter shall require And also the said Laws and every of them to abrogate adnul amplifie or diminish as it shall be seem to the King and the Nobles and Commons of this Realm present in Parliament meet and convenient for the Wealth of this Realm The Power and Jurisdiction of the Parliament for making of Laws in proceeding by Bill 4 Inst 36. is so transcendent and absolute as it cannot be confined either for Causes or Persons within any Bounds Si Antiquitatem spectes est vetustissima si Dignitatem est honoratissima si Jurisdictionem est capacissima The whole Parliament which should best know its own Power affirms Speed's Hist f. 914 Rot. Parl. 1 R. 3. In Cotton's Abridgment f. 713 714 that the Court of Parliament is of such Authority and the People of this Land of such a Nature and Disposition as Experience teacheth that the Manifestation and Declaration of any Truth or Right made by the Three Estates of this Realm assembled in Parliament and by Authority of the same maketh before all other things most Faith and certain quieting of Mens Minds and removeth the Occasion of Doubts Parliamentum omnia Potest says the 4 Inst 74.76 The Parliament is of an absolute and unlimited Power in things Temporal Sir Rob. Atkyns's Argument c. 50. Ibid. within this Nation The Parliament hath the highest and most sacred Authority of any Court it hath an absolute Power It is the highest Court in the Realm as is acknowledged by our most learned and gravest Writers and Historians A Man gives Land to one and to his Heirs Males Crompton 20. b. Dr. and Student in that Case his Heirs Females shall also inherit and this was adjudged in Parliament One of the fundamental and principal Ends of Parliaments was Petit's Preface to Ancient Rights c. p. 41. for the Redress of Grievances and easing the Oppressions of the People And the Mirror of Justices says 6.1 p. 4. and 5. That Parliaments were instituted to hear and determine the Complaints of the wrongful Acts of the King the Queen and their Children and especially of those Persons against whom the Subjects otherwise could not have common Justice for wrongs so by them done Covient per droit que le Roy ust Companions pur oyer et terminer aux Parliaments trestouts les breues et plaints de Torts de le Roy de la Roigne Horn's Mirror p. 9. et de lour Enfants et de Eux specialment de que Torts len ne poit aver autrement Common droit i. e. The King ought by Law to have Companions or associates to hear and determine in Parliament of all Writs and Plaints of all Torts or Wrongs as well of the King as of the Queen and their Children and especially of those Great Ones where one cannot otherwise have Common right for those wrongs The greater the Persons are Sir Rob. Atkyns Argument p. 45. if they are in the Rank of Subjects they must be subject to the King's Laws and they are the more proper for the Undertaking and Encounter of this High Court It will not be impar congressus King John had resign'd up the Crown of England to the Pope Id. 37. by the Hand of Pandulphus his Legat Mat. Paris and sordidly submitted to take the Crown at his Hand again Rot. Parl. 40. E. 3. No 7. 8. at a yearly Tribute In the Reign of our Noble King Edward the Third the Pope demanded this Rent and all the Arrears But the Prelates Dukes Counts Barons and Commons resolved that neither the King nor any other could put the Realm nor the People thereof into Subjection sans l'assent de eux without their Assent This intimates Sir R. Atkyn's Arg. p. 50. that with their joynt Consent the Crown may be disposed of And it was the highest Resolution in Law in one of the highest Points in Law concerning the King's claim of an Absolute Power and in a Time when the Pope was in his Meridian Height It is the proper Work of this Supreme Court to deal with such Delinquents Ibid. as are too high for the Court of King's Bench or other ordinary Courts Daughters and Heirs apparent of a Man or Woman 4 Inst 36. may by Act of Parliament inherit during the Life of the Ancestor Ante 69. It may adjudge an Infant or Minor to be of full Age. Ibid. It may Attaint a Man of Treason after his Death Ibid. It may Naturalize a meer Alien Ibid. and make him a Subject born It may bastard a Child Ibid. that by Law is Legitimate viz. begotten by an Adulterer the Husband being within the four Seas It may Legitimate one that is Illegitimate Ibid. and born before Marriage absolutely It may Legitimate secundum quid etiamque simpliciter 21 Rich. 2. The Lords Appellants accused the Duke of Gloucester of Treason Selden's Judicature 91. and tho' they knew he was dead they pray'd the King that he might be brought to his Answer The King sent his Writ c. they desired Judgment and had it So Robert Possington was impeached at the Parliament at Westminster Id. 95. and found Guilty long Time after he was dead and so forfeited his Estate John of Gaunt Duke of Lancaster had by Catherine Swinford 4 Inst 36. Cotten's Record p. 363. before Marriage four illegitimate Children Henry John Thomas and Joan. At the Parliament holden 20 Rich. 2. the King by Act of Parliament in Form of a Charter doth Legitimate the three Sons and Joan the Daughter Thomas Cromwel Vide post 4 Inst 36. Earl of Essex was attainted by Parliament and forth-coming to be heard and yet never call'd to answer in any of the Houses of Parliament and resolved by the Judges that if one be Attainted by Parliament it can never come in question after whether he were call'd or not call'd to answer for the Act of Attainder being pass'd by Parliament did bind Where by Order of Law a Man cannot be Attainted of High-Treason Id. 39. unless the Offence be in Law High-Treason he ought not to be Attainted by general Words of High-Treason by Authority of Parliament as sometimes hath been used but the High-Treason ought to be especially exprest seeing that the Court of Parliament is the highest and most honourable Court of Justice and ought to give example to inferior Courts Acts against the Power of the Parliament subsequent bind not Id. 42. It is against the Power and Jurisdiction of the Parliament the Liberty of the Subject and unreasonable i. e. Illegal The Stat. 11. Rich. 2. c. 5. Id. 42. That no Person should attempt to revoke any Ordinance then made was repealed for that such Restraint is unreasonable c. An Act 11 Rich. 2 c. 3. Ibid. That no Man against whom any Judgment or Forfeiture was given shou'd sue for Pardon or Grace c. was holden to be unreasonable without Example and against the Law and
Duke of Somerset in the Time of Ed. 6. was tried for Felony and Treason by his Peers upon an Indictment Id. 71. for it is the Suit of the King When a Lord of Parliament is tried by his Peers 1 Hen. 4.1 Id. 72. they shall not be Sworn to say their Verdict but they shall give their Verdict upon their Honour and are not charged but upon their Honours And 6 Maij 1628. Sir Wm. Jones's Rep. 154 155. It was ordered on the Question Nem. Dissen That the Nobility of this Kingdom and Lords of the upper House of Parliament are of antient Right to Answer in all Courts as Defendants upon Protestation of Honour only and not upon the common Oath An order of the House of Lords was in 1640. Cursus Cancel 112. That the Nobility of this Kingdom and Lords of the upper House of Parliament and the Widows and Dowagers of the Temporal Lords shall Answer in Chancery c. upon Protestation of Honour only but altho their Honour may bind their Conscience in Equity yet Evidence upon their Honour ought not to be admitted in any Court of Law And we must here Note That even Lords of Parliament or Peers of the Realm in giving Evidence to a Jury or in their Depositions in Chancery c. are to be Examined on Oath A Lord of Parliament shall have Knights upon his Trial in every Action 27 Hen. 8. f. 27. A Lord of Parliament may be Outlawed for Murder 27 Hen. 8. f. 17. If a Lord of Parliament makes a Rescous 27 H. 8.27 a Capias shall be taken out against him if the Sheriff return the Rescous otherwise it is in Case of Debt A Capias ad Satisfaciendum does not lyc against a Lord of Parliament 11 H. 4.15 27 Hen. 8.27 for the Law presumes that he has Assets An Attachment is not grantable by the Common Law Dyer 316. Statue Law Custom or Precedent against a Lord of Parliament and the Lord Cromwel by Order in the Parliament-Chamber was discharged of such Process In a Praemunire against a Lord of Parliament Arc. Parl. he ought to appear in his proper Person and not by Attorney unless he has a special Writ of Chancery De attornato faciendo CHAP. V. The Power of the House of Lords A Peer of the Realm being Indicted of Treason or Felony 4 Inst 23. or Misprision of Treason may be Arraigned thereof in Parliament a Lord Steward being appointed and then the Lords Spiritual shall make a Procurator for them and the Lords as Peers of the Realm during the Parliament are Judges whether the Offence be Treason c. that is supposed to be committed by any Peer of the Realm and not the Justices Vide a Letter sent by nine Lords Rush Col. 3. Stat. vol. 1. f. 737. Ant. 42. to the Parliament June 4 1642 who had gone from their House and repaired to the King at York wherein they say We do conceive that it is the apparent usual and inherent Right belonging to the Peerage of England that in the highest Misdemeanour whatsoever no Peer is to Answer to the first Charge but in his Place in his own Person and not upon the first Charge to come to the Barr. In 1553. primo Mariae Burn. His Ref. vol. 2. p. 253. The Bill of Tonnage and Poundage was sent up to the Lords who sent it down to the Commons to be reformed in two Provisoes that were not according to former Precedents How far this was contrary to the Rights of the Commons who now say that the Lords cannot alter a Bill of Money I am not able to determine Die Mercurij 25 Novembris 1692. It is Resolved upon the Question by the Lords Spiritual and Temporal that for the future when there shall be a Devision in the House upon any Question the Contents shall goe below the Barr and the Not Contents stay within the Barr And it is Ordered that this Resolution be added to the Roll of standing Orders of this House Die Lune 7. Decembris 1691. It is Ordered by the Lords Spiritual and Temporal in Parliament Assembled that for the future upon giving Judgment in any Cases of Appeals or Writs of Error in this House the Question shall be put for Reversing and not for Affirming And that this be added to the Roll of standing Orders 30. Jan. 1640. Rush Col. 3. part vol. 1 p. 165. Upon a Debate in the Lord's House touching the Power of conveying away of Honour it was Nemine contradicente Resolved upon the Question that no Person that hath any Honour in him as a Peer of this Realm may alien and transfer the same to any other Person See Sir B. Shower's Cases in Parliament 1.2 c. See many notable Judgments by the Lords at the Prosecution of the Commons Rush Col. passim Nalson and in later Times Error serra sue in Parliament Vid. Crom. 18. Error Vid. infra Parliament poet prendre Recognizance Brook 137. Error Error shall be sued in Parliament and the Parliament may take a Recognizance If a Judgment be given in the King's Bench 4. Inst 21. either upon a Writ of Error or otherwise the Party grieved may upon a Petition of Right made to the King in English or in French and his Answer thereto Fiat Jusstitia let Justice be done have a Writ of Error directed to the Chief Justice of the King's Bench for removing of the Record in praesens Parliamentum c. And hence it may be presum'd that Writs of Error in Parliament were originally Returnable before the Commons as well as the Lords See Yelverton's Rights of the Commons and Hales of Parliaments p. 18. to 23. When one sueth in Parliament to Reverse a Judgment in the King's Bench he sheweth in his Bill which he exhibiteth to the Parliament some Error or Errors whereupon he prayeth a Scire Facias Id. 22. The Proceeding upon the Writ of Error is only before the Lords in the Upper House Secundum Legem Consuetudinem Parliamenti The Case between Smith and Busby in a Writ or Error Resolved 2 Nalson 716. 'twas decidable in no other Court but in Parliament If any Question be moved in Parliament for Priviledge 4 Inst 363 or Precedency of any Lord of Parliament it is to be decided by the Lords of Parliament in the House of Lords as all Priviledges and other Matters concerning the Lords House of Parliament are November 1641. 2 Nalson 625. Resolved by the House Nemine contradicente that it belongs to the House of Peers by the antient Laws and Constitutions of this Kingdom to interpret Acts of Parliament in Time of Parliament in any Cause that shall be brought before them Julij 12. 1641. 2. Nalson 381. An order of the Lords for Relief of a Feme-Covert and her Children against a Husband refusing to Cohabit The Sentence pronounced by the Lords upon Sir Giles Mompesson Rushw Col. 27.28 and Sir Fracis Michel for Projectors Upon Complaints and Accusations of the Commons Selden's Judicature
a Speech spoken by him in the House he shou'd be sent to the Tower during the Parliament or presently after Darryel was sent for by the Serjeant to answer it to the House and upon Testimony of it he was committed to the Serjeant till Thursday following and then to acknowledge his Fault or to be committed to the Tower 16 Junij 1604 Ibid. Complaint being made of one Thomas Rogers a Currier dwelling in Colemanstreet for abusing Sir John Savil in slanderous and unseemly Terms upon his Proceedings at a Committee in the Bill touching Tanners c. he was sent for by the Serjeant at Arms to the Bar to answer his Offence Sir William Aston Rush Col. 656. Vid. Petyt 's Miscell Parl. 108. Acon 's Case Sheriff of London being examined before the Committee concerning some Matters about the Customs and not giving that clear Answer which he ought and as the House conceived he might have done was therefore committed to the Tower of London And a Question was made in the House at that Time Whether the House had at any Time before committed a Sheriff of London to Prison To which Mr. Selden made Answer That he could not call to mind a Precedent of sending one Sheriff of London to Prison but he well remembred a Precedent of sending both the Sheriffs of London to the Tower and instanced the Case One Trussel Towns Col. 20. Vid. Sir Simon d'Ewes Jour 438. Col. 1. being in Execution in one of the Compter's in London was order'd to be brought before the Committee with his Keeper without Danger of an Escape in the Execution Note the Case of Mr. W. Montague who being a Prisoner in Execution was notwithstanding elected a Burgess for Stockbridge and discharged of his Imprisonment by the House See the Case in Bohun's Collection of Debates pa. 275. to 281 where all the Precedents of this Kind are cited at large 4 Novemb. 1640 Scobel 16. upon a Report from the Committee for Priviledges That several Indentures were returned for Burgesses for the Borough of Bossinny in the County of Cornwal the one by the Mayor of the Town the other promiscuously the Committee were of Opinion upon view of the bare Indenture That Sir Charles Harbord who was return'd by the Mayor was well return'd See hereafter Ch. 12. and 13 but the House declar'd he shou'd not sit till the Election were decided 44 Eliz. 1601 the Course hath been Towns Col 297. if the House hath been desirous to see any Record the Speaker shou'd send a Warrant to the Lord Keeper to grant a Certiorari to have the Record brought into the House Decemb. 1641 Nalson 753. ordered That Mr. Speaker do write his Letters to the Mayor of Berwick enjoyning him to require such Papists and suspected Persons as reside there or make their constant Repair thither forthwith to depart the Town and to tender the Oaths of Supremacy and Allegiance to such as shall refuse and to proceed against them according to Law and to require him that a Guard be kept at the several Gates and that the Arms of that Place be in Readiness The like to the Mayor of Newcastle and of Hull The Commons Rush Col. 358. upon Imprisonment of their Members and the Offence taken by the King resolved to proceed in no other Business till they were righted in their Liberties See Nalson's Col. p. 3. to 21. Dec. 1641 Nalson 732. Mr. Long a Justice of the Peace sent to the Tower for setting a Guard without Consent of the Parliament A Knight 4 Inst 12. Citizen or Burgess of the House of Commons cannot by any Means make a Proxy because he is elected and trusted by Multitudes of People If the Commons accuse a Commoner of Misdemeanors Selden 's Jud. 101. in such a State of Liberty or Restraint as he is in when the Commons complain of him in such he is to answer Sir Francis Michel Seld. Jud. Ibid. and Sir John Bennet were both committed by the Commons before their Complaint to the Lords and so they answered as Prisoners but that in a Sort may be call'd Judicium parium suorum If the Commons impeach any Man Ib. 124. Ante they are in loco proprio and there no Jury ought to be only Witnesses are to be examined in their Presence or they to have Copies thereof and the Judgment not to be given until the Commons demand it The Presence of the Commons is necessary at the Parties Answer Ib. 158. Ante 56. and Judgment in Cases Capital Now one Reason for the King's Assent and the Commons Presence in such Judgments may be this Both King and People are to be satisfied for the Death of the Subject therefore all Trials for Life and Death are publick in the full Assembly of the Court and how can it be said in full Parliament when the Commons one of the States are absent Tho the Commons are not present when the Lords do consider of the Delinquents Answer and the Proofs Ib. 159. and do determine of their Judgment yet at their Return to their own Assembly they consider among themselves if the Proceedings were legal and may come again and shew it and require a Rehearing of the Cause as they did at the Judgment of the Duke of Clarence in 18 Ed. 3. In Judgments on Misdemeanors Ib. 162. Ante 58. the Presence of the Commons is not necessary unless they impeach a Delinquent prout 50 E. 3. and then they are present at all the Answers of those whom they impeach and are to demand Judgment When the Lords had determin'd one Part of the Complaint of the Commons against William Ellis touching the Wrong done to certain Scottish Merchants the Commons pray'd a general Inquiry might be made of the Residue whereof they complained Ibid. which the Lords granted When the Lord Nevil answered Id. 163. the Commons required that one Richard Love might be examined to prove that which the said Lord deny'd and so departed but two of the Commons remained and heard the Examinations and told the Lords That the said Richard had related otherwise to the Commons the Day before which the said Richard deny'd Then all the Commons came and justify'd it again and thereupon the said Richard Love confessed it and on their Demands was committed In the 10 Rich. 2. Ibid. when the Commons had Impeached the Lord Chancellor they were present at his Answer and so often reply'd and enforced his Oath against him Vid. Post 80. and required him to be committed and so he was before Judgment If the Commons do only complain Ibid. 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 Issuing of Quo Warranto's out of the Court of King's-Bench Nalson 588. Court of Exchequer or any Court against Boroughs that anciently or recently sent Burgesses to Parliament to shew
and must be amended there Sed aliter nunc Every Sheriff or other Officer St. 33 H. 8. c. 1. in Ireland returning any Knight Citizen or Burgess chosen in any other Manner than is prescribed in the Statute to forfeit a 100 l. Vide Post If one be duly Elected Knight 4 Inst 49. It cites in the Margin Rot. Parl. 5 H. 4. n. 38. Citizen or Burgess and the Sheriff Return another the Return must be reformed and amended by the Sheriff and he that is duly Elected must be Inserted for the Election in these Cases is the Foundation and not the Return 18 Jac. 1. Scobel 115. The Sheriff of Leicestershire having Returned Sir Thomas Beaumont upon Report from the Committee for Elections that Sir George Hastings was duly chosen the Sheriff was ordered to Return Sir George Hastings to the Clerk of the Crown and he to accept it and file it 21 Jac. 1. Ibid. Upon Report from the Committee of Privileges That in the Election of Mr. John Maynard for Chippingham John Maynard was Chosen but by a Mistake Charles was afterward written in stead of John It was Resolved The Return shou'd be amended without a new Writ and that the Bailiff shou'd do it and not the Clerk of the Crown and that it shou'd be sent down to the Bailiff in the Country and he to Return John Maynard Esq the first Burgess 1. Febr. 1640. Ibid. It being Resolved That the Election of Mr. Erle for one of the Burgesses of Wareham is a good Election Ordered That the Officer when the Return was made or his Deputy or the Electors shou'd amend the Return But the next Day it was Ordered That Edward Harbin the late Mayor of Wareham 's Deputy shou'd come to the Bar of the House and amend the Return 20 Febr. 1640. Ibid. 116. The Bailiff of Midhurst in Sussex came to the Bar being sent for by Order of the House and amended one of the Indentures of Return of Burgesses for that Town and the other was taken off the File If a Sheriff shall Return One for Knt. of the Shire who was unduly Simon d'Ewes Jour 283. Col. 2. or not at all Elected yet he that is so Return'd remains a Member of the House till his Election be declared Void Of double Returns England and new Writs Ex Memorials of Parliament That if any Sheriff be henceforth negligent in making his Returns of Writs of Parliament St. 5 R. 2. c. 4. Sheriffs neglecting to make Returns or leaving out the Returns of Cities or Borought shall be amerced or otherwise punished as in old Times or that he leave out of the said Returns any Cities or Boroughs which be bound and of old Time were wont to come to the Parliament he shall be amerced or otherwise punished in manner as was accustomed in the said Case in times past That from henceforth in order to the Elections of Counties at the next County after the Delivery of the Writ England Proclamation shall be made in full County of the Day and Place of the Parliament St. 7. H. 4. c. 15. Proclamation to be made at the next County-Court after the Delivery of the Writ to the Sheriff for the Election of knights of the Shires and that all they that be there present as well Suitors duly summoned for the same Cause as other shall attend to the Election of the Knights for the Parliament and then in the full County they shall proceed to the Election freely and indifferently notwithstanding any Request or Commandment to the contrary And after they be chosen Sheriff's Return after the Election shall be by Indenture containing the Persons chosen sealed by the Electors and annexed to the Writ the Names of the Persons so chosen be they present or absent shall be written in an Indenture under the Seals of all them that did choose them and tacked to the same Writ which Indenture so sealed and tacked shall be holden for the Sheriff's Return of the said Writ touching Knights of the Shires In Writs of Parliament hereafter to be made this Clause shall be put Et Electionem tuam in pleno Comitatu factam sub sigillo tuo sigillis eorum qui electioni illi interfuerant nobis in Cancellaria nra ad diem locum in brevi contentu certifices indilate England Forasmuch as in the Statute 7 H. 4. ch 15. no Penalty was ordained or limited in special upon the Sheriffs of the County if they make any Returns contrary of the same Statute St. 11. H. 4. c. 1. Of Returns made by Sheriffs contrary to the Statute 7 H. 4. c. 15. Justices of Assize impower'd to inquire and on Inquest and Proof made thereof such Sheriffs to pay 100 l. to the King It is ordained that the Justices assigned to take Assizes shall have Power to inquire at their Assizes of such Returns made and if it be found by Inquest and due Examination before the same Justices that any such Sheriff hath made any Return contrary to the Tenor of the said Statute the same Sheriff shall incur the Penalty of 100 l. to be paid to our Lord the King That all Sheriffs shall have their Answer and Traverse to Inquests and Offices St. 6 H. 6. c. 4. Sheriffs shall have their Traverses to Inquests c. upon the St 7.4 c. 15. 11 H. 4. c. 1. before any Justices of Assizes hereafter to be taken upon the Stat. 7 Hen. IV. chapter 15. and 11 Hen. IV. ch 1. and the said Sheriffs shall not be endamaged unto our Lord the King or his Successors for any such Inquest taken until they be duly convict according to the Form of Law That such are to be chosen Knights of the Shire as have the greatest Number of them that may expend 40 s. by Year and above England and shall be returned by the Sheriffs of every County St. 8 H. 6. c. 7. See Cromp. Juris 3. Hakewell 48. Knights for Parliament by Indentures sealed betwixt the said Sheriffs and the said Choosers And every Sheriff of the Realm of England shall have Power to examine upon the Evangelists every such Chooser how much he may expend by the Year And if any Sheriff return Knights to Parliament contrary to the said Ordinance the Justices of Assizes in their Sessions shall have Power thereof to inquire And if by Inquest the same be found before the Justices and the Sheriff thereof be duly attainted he shall incur the Penalty of 100 l. to be paid to our Lord the King and also that he have Imprisonment by a Year without Mainprize or Bail And that in every Writ hereafter to go forth Quere mention shall be made of this Ordinance That every Sheriff St. 23 H. 6. c. 15. Sheriff after the Receipt of the Writ to deliver a Precept under his Seal to every Mayor Bailiff c. of the Cities and Boroughs within his County reciting his Writ and commanding them to choose c. after the Delivery of any Writ of Election shall
down to the Bar and so to bring up his Report to the Table If the Committee cannot perfect the Business at that Sitting Ibid. they may not adjourn as other Committees but a Question is to be made for reporting to the House and that Leave be asked That the Committee may sit at another Time on that Business But if as it sometimes falls out Ibid. the Matter hath received a full Debate in the Committee and it is judged fit to be resolved in the House the Speaker is again called to the Chair for that Purpose In other Things the Rules of Proceedings are to be the same as are in the House Id. 39. 4 Junii Ibid. 1607. Agreed for a Rule That every Question upon the Voices of a Committee bindeth and cannot be altered by themselves Every Thing directed Ibid. and agreed to be reported ought to be accordingly reported but not every Thing spoken or debated at a Committee 15 Maii Id. 36. 22 Jac. 1. Upon Complaint from the Grand Committee for Grievances That they had sent several Warrants for divers Persons to bring in their Patents which they had not done the House ordered the Serjant at Arms to send for them The Committee for Trade is sometimes made of a Grand Committee of the whole House Id. 9. as in 21 Jac. 1. andnow usually so The Committees for Religion Ibid. Grievances and Courts of Justice are always Grand Committees of the House which are to sit in the Afternoon upon such Days as the House doth appoint to them respectively 8 13 Martii Id. 36. 21 Jac. 1. Upon Report from the Committee for Trade which then was a Grand Committee the House was moved for their Order to the Merchants Adventurers to bring in their Patents and that the Inventor of the pretermitted Customs should attend the Committee The Commons Rush Col. 225. upon Debate of what fell from his Majesty and the Lord Keeper turned the House into a Grand Committee order'd the Doors to be locked and no Members to go forth and that all Proceedings in all other Committees shall cease till the House come to a Resolution in this Business CHAP. XX. Of Standing Committees THE Commons being the General Inquisitors of the Realm 4 Inst 11. have principal Care in the Beginning of the Parliament to appoint Days of Committees viz. of Grievances both in the Church and Commonwealth of Courts of Justice of Privileges and Advancement of Trade In Parliament there have usually been five Standing Committees appointed in the Beginning of the Parliament Scobel 9. and remaining during all the Session other Committees are made occasionally and dissolved after the Business committed to them is reported Standing Committees are for Privileges and Elections Ibid. Religion Grievances Courts of Justice Trade These Committees when they meet 4. Inst 12. they elect one of them to sit in their Chair in Likeness of the Speaker The Committee may examine and vote the Questions handled by them and by one whom they appoint report their Resolutions to the House and the House sitting the Speaker to determine the same by Question The Committees for Religion Scobel 9. Grievances and Courts of Justice are always Grand Committees of the House which are to sit in the Afternoon upon such Days as the House doth appoint to them respectively The Committee for Trade hath sometimes been a select Committee Ibid. particularly named and all such Members as should come to it to have Voices as in Nov. 1640. Sometimes a Grand Committee of the whole House as 21 Jac. 1. The Committee for Privileges and Elections hath always had the Precedence of all other Committees Id. 10. being commonly the first Committee appointed and ordinarily the first Day after or the same Day the Speaker doth take his Place This Committee is constituted of particular Numbers named by the House Ibid. 21 Jac. 1. Ibid. Upon naming a Committee for Privileges and Elections a Motion was made That all that come should have Voices but insisted on to be contrary to all former Precedents A Question was put Whether all that come should have Voices at the Committee and passed in the Negative Another being put Whether the Persons nominated only should be of the Committee it was resolved in the Affirmative In the Journal 26 February Id. 11. 1600. 42 Eliz. the Power anciently given to this Committee is to examine and make Report of all Cases touching Elections and Returns and all Cases for Privileges as may fall out during the Parliament But in other Parliaments both before and since that Power doth not appear to have been given them so absolutely but Matters of Privilege were upon Information to the House there heard and not in a Committee unless in some special Cases wherein there was Cause of Examination or some Preparation of a Charge Council may be admitted at that Committee Id. 11. The Power of this Committee usually was as it is enter'd in Nov. 1640. Id. 12. to examine and consider all Questions which shall grow and arise in that Parliament about Elections Returns and other Privileges Or as in 1 Jac. 1. this Committee are to examine all Matters questionable touching Privileges and Returns and to acquaint the House with their Proceedings from Time to Time so as Order may be taken according to the Occasion and agreeable with ancient Customs and Precedents And to the End these Questions may be speedily determined Ibid. and the House may know their Members Days are usually assign'd beyond which there shall be no questioning a former Election So in the Parliament 21 Jac. 1. Ibid. it was ordered That all Petitions about Elections and Returns should be preferred to the Committee of Privileges within a Fortnight from that Day or else to be silenced for that Session 16 April Id. 13. 1640. Ordered That those who would question Elections should do it within ten Days by Petition 6 Nov. 1640. Ordered Ibid. That all such as will question Elections now returned shall do it in fourteen Days and so within fourteen Days after any new Return Some Questions have been where there have been double Indentures returned for several Persons for the same Place whether all or any or which shall sit Id. 13. The general Rule and Practice hath been in such Case That neither one nor other shall sit in the House till it were either decided or ordered by the House 17 April 19 Jac. 1. Ordered Id. 16. That no Petition shall be received by a Committee but openly at a Committee and read at the Committee before the Party go that perferred it and the Party's Name that preferred it be subscribed In the Parliament 21 Jac. 1. Resolved Id 17. That all Assidavits to be taken in any Court concerning Elections Returns or any Thing depending thereupon should be rejected and not hereafter to be used Though the Committee examine not upon Oath Ibid. yet they may punish any that shall testify untruly of which there was an Instance in the Case of one Damport
Sir Francis Popham being returned a Burgess for Chippenham by one Indenture Id. 14. and another Person returned for the same Place by another Indenture it was moved he might be admitted into the House till the Matter were determined But he was not so admitted and it was referred to the Committee for Privileges 21 Jac. 1. Id. 15. Two Indentures were return'd for Southwark the one returned Yarrow and Mingy the other Yarrow and Bromfeild Upon a Report from the Committee of Elections it was resolved That the Election and Return for Yarrow should stand good and that he should sit in the House 22 Martii Ibid. 21 Jac. 1. Sir John Jackson and Sir Thomas Beaumont were both returned for one Burgess's Place for Pontefract Ordered That the Committee take the Election into Consideration to Morrow and that in the mean Time the Parties forbear to come into the House CHAP. XXI A Session of Parliament and of Prorogations and Adjournments WHAT shall make a Session of Parliament See 1 Rol. R. 29. Hutton 61. 4 Inst 27. 1 Siderf 457. 1 Mod. Rep. 151 155. If several Bills are passed at one and the same Parliament none of them shall have Priority of the other for they are made all in one Day and Instant and each of them have relation to the first Day of the Parliament though in several Chapters and shall so be construed as if they had been all comprehended in one and the same Act of Parliament Sir W. Jones Rep. 22. Hob. 111. Bro. tit Parl. 86. and Relat. 35. Plowd 79.6 Levintz 9. Crooke says That though in Fiction of Law a Statute shall have relation to the first Day of the Parlaiment yet revera nothing is settled nor is it a perfect Statute till the Parliament is ended Jones ut sup 370. Vide cont ibid. 371. Hales Justice said That if the Parliament has several Prorogations and in the second or third Session an Act is made this shall not have relation to the Day of the Beginning of the Parliament that is to say to to the first Day of the first Session but only to the first Day of the same Session in which it is made Plowd 79.6 In a Session of Parliament though it continue never so many Weeks yet there is nothing prius aut posterius but all Things are held and taken as done at one and the same Time Rush Vol. I. Page 581. Jones in the Case of Sir John Elliot Ibid. p. 687. says We are Judges what shall be said a Session of Parliament Sed Quere de hoc The Passing of any Bill or Bills 4 Inst 27. by giving the Royal Assent thereto or the giving any Judgment in Parliament doth not make a Session but the Session doth continue till that Session be prorogued or dissolved And this is evident by many Presidents in Parliament ancient and modern 14 Ed. 3. Ibid. On the first Monday a Grant of c. being given to the King was made a Statute and pass'd both Houses and had the Royal Assent thereunto yet after this the Parliament continued and divers Acts made and Petitions granted 3 Rich. 2 Declared by Act of Parliament Ibid. That the killing of John Imperial Ambassador of Genoa was High Treason yet the Parliament continued long after and divers Acts made c. 7 Hen. 4. Ibid. An Act made for certain Strangers departing the Realm c. yet the Parliament continued till Dec. 8. Hen. 4. 1 Hen. 7. Ibid. The Attainders of such as were returned Knights Citizens and Burgesses were revers'd by Act Parliament before they could sit in the House of Commons and the Parliament continued and divers Acts made 33 Hen. 8. Ibid. At the Beginning of the Parliament the Bill of Attainder against Queen Catherine Howard passed both Houses yet the Parliament continued and divers Acts passed Though Bills passed both Houses Ibid. and the Royal Assent be given thereto there is no Session until a Prorogation or a Dissolution The Diversity between a Prorogation and an Adjournment Ibid. or Continuance of the Parliament is That by the Prorogation in open Court there is a Session and then such Bills as passed either or both Houses and had no Royal Assent to to them must at the next Assembly begin again Every several Session of Parliament is in Law a several Parliament Ibid. Hutton 61. Brook tit Parl. 86. But if it be but adjourned or continued then there is no Session and consequently all Things continue in the same State they were in before the Adjournment or Continuance The Titles of divers Acts of Parliament be 4 Inst 27. At the Session holden by Prorogation or by Adjournment and Prorogation but never by Continuance or Adjournment tantùm And the usual Form of Pleading is ad Sessionem tentam c. per Prorogationem The Adjournment or Continuance is much more beneficial for the Common-wealth 4 Inst 28. for expediting of Causes than a Prorogation The King desired the House of Commons not to make a Recess in the Easter Holidays Rush Col. 537 This Message for Non-recess was not well pleasing to the House Sir Robert Philips first resented it and took Notice That in 12 18 Jac. 1. upon the like Intimation the House resolved It was in their Power to adjourn or sit Hereafter said he this may be put upon us by Princes of less Piety Let a Committee consider hereof and of our Right herein and to make a Declaration Sir Edward Coke said The King makes a Prorogation but this House Adjourns itself The Commission of Adjournment we never read but say This House adjourns it self If the King writes to an Abbot for a Corody for a Vallet if it be ex rogatu though the Abbot yeilds to it it binds not Therefore I desire that it be entered That this be done ex Rogatu Regis And this Matter touching his Majesty's Pleasure about the Recess Rush Col. 537. was referred to a Committee and to consider the Power of the House to adjourn itself The Sovereign may adjourn the Parliament Sir Simon d'Ewe's Jour 318. Col. 2. as well as the Parliament adjourns itself When a Parliament is called 4 Inst 28. Hutton 61. Vid. Sir Simon d'Ewe's Jour 407. Col. 1. and doth sit and is dissolved without any Act of Parliament passed or Judgment given it is no Session of Parliament but a Convention 18 Rich. 2. The Petitions of the Commons were answered 4 Inst 28. and a Judgment given in the King's Bench reversed but no Act passed Yet without Question it was a Session else the Judgment should not be of Force Many Times Judgments given in Parliament have been executed Ibid. the Parliament continuing before any Bill passed If divers Statutes be continued till the next Parliament Hutton 61. or next Session and there is a Parliament or Session and nothing done therein as to Continuance all the said Statutes are discontinued and gone 8 April Hakewel 180. 1604. In the last Session of the first Parliment of K.