less than the united Consent of all and every Person of the Kingdom and under this Notion its Power is Unlimited and Universal its Authority is the most unerring and firm support of Monarchy and Government and has been ever used as the only Expedient to accommodate the differences of Pretenders and Competitors to arbitrate and decree not only the Right and Possession but even the Inheritance and Reversion of the Regal Power to succour and defend the King and Kingdom against all possibility of Injury or Incroachment that might be Intended against or Usurped upon it or its Authority to decree the Nations Liberties ascertain Property and to establish an unquestionable Peace and Security to all the People both from the danger of Grievances at Home or the Assaults of foreign Power In this capacity it hath Power above the Law itself Hollinshead c. 1. vol. 1. p. 173. having Power to alter the common Law of England to declare the meaning of any doubtful Laws to repeal old Patents Grants or Charters and Judgments whatsoever of the King or any other Court of Justice if erroneous or illegal and extends so far as finally to oblige both King and People to punish Offenders of all Sorts to examine into the corruptions of Religion and either to disanul or reform it Anno 1626. 2. Rushw Coll. vol. 1. p. 245. Car. the Commons in their Remonstrances declare that it hath been the antient constant and undoubted Right and Usage of Parliaments to question and complain of all Persons of what degree soever found grievous to the Common-Wealth in abusing the Power and Trust committed to them by the Sovereigns a Course approved of by frequent Presidents in the best and most glorious Reigns appearing both in Records and Histories c. In 30. E. 3. 7. H. 4. Rot. Parl. N o 31 32. the Parliament accused John de Gaunt the King's Son and Lord Latimer and Lord Nevil for misadvising the King and they went to the Tower for it In 11. Rushw Ib. p. 627. H. 4. N o 13. the Council are complained of and are removed from the King for that they mewed-up the King and disuaded him from the common Good In 4. H. 3. 27. E. 3. 13. R. 2. the Parliament moderateth the King's Prerogative and nothing grows to an Abuse says Sir Edward Coke but the Parliament hath Power to treat of and Correct it And King James the 1st Idem p. 62â— put the Commons assembled in Parliament in mind that it would be the greatest unsaithfulness and breach of Duty to his Majesty and of the Trust committed to them by the Country that could be if in setting forth the Grievances of the People and the Condition of all the Petitions of this Kingdom from whence they come they did not deal clearly with him without sparing any Persons how near and dear soever they were unto him if they were hurtful or dangerous to the Common-Wealth The most High and Absolute Power of the Realm of England Sir Tho. Smith's Common-wealth l. 2. c. 2. p. 72. Arcana Parl. 1. consisteth in the Parliament For as in War where the King himself in Person the Nobility the rest of the Gentility and the Yeomanry are is the Force and Power of England So in Peace and Consultation where the Prince is to give Life and the last and highest Commandment the Barony or Nobility for the higher the Knights Esquires Gentlemen and Commons for the lower part of the Common-wealth the Bishops for the Clergy be present to advertise consult and shew what is good and necessary for the Common-wealth and to consult together and upon mature deliberation every Bill or Law being thrice read and disputed in either House the other two parts first each a part Ibid p. 73. and after the Prince himself in presence of both the Parties doth consent unto and alloweth that it is the Prince's and whole Realm's Deed whereupon justly no Man can complain but must accommodate himself to find it good and obey it Thus the concurrent Consent of these three Estates when reduced to writing Inst Leg. p. 34. and pass'd in Parliament is as it were a Tripartite Indenture between King Lords and Commons and that which is so done by this Consent is called firm stable and sanctum and is taken for Law As to the Power of Parliaments Sir Tho. Smith ibid. Arc. Parl. 2. Vide Crompt Jur. 3. 1. It abrogateth old Laws 2. Maketh new Laws 3. Giveth order for things past 4. Directs things hereafter to be followed 5. Changeth Right and Possessions of private Men. 6. Legitimateth Bastards 7. Establisheth Forms of Religion 8. Altereth Weights and Measures 9. Giveth Form of Succession to the Crown 10. Defineth of doubtful Rights whereof is no Law already made 11. Appointeth Subsidies Tallies Taxes and Impositions 12. Giveth most free Pardons and Absolutions 13. Restoreth in Blood and Name 14. And as the highest Court condemneth or absolveth them who are put upon their Trial. In short Ibid. all that ever the People of Rome might do either Centuriatis Comitiis or Tributis the same may be done by the Parliament of England which representeth and hath the Power of the whole Realm both the Head and Body For every Englishman is intended to be there present either in Person or by Procuration and Attorny of what preheminence state dignity or quality soever he be from the Prince be he King or Queen to the lowest Person of England And the Consent of the Parliament is taken to be every Man's consent As to its Power over both the Statute and Common Law of this Realm Rastal's Statutes fol. 546. 25 H. 8. c. 21. you will be best informed of it from the memorable words of an Act of Parliament itself viz. Whereas this Realm recognizing no Superiour under God but only the King hath been and is free from Subjection to any Man's Laws but to such as have been devised made and ordained within this Realm for the Wealth of the same or to such other as by Sufferance of the King and his Progenitors the People of this Realm have taken at their free Liberty by their own Consent to be used amongst them and have bound themselves by long Use and Custom to the Observance of the same not as to the Observance of the Laws of any Foreign Prince Potentate or Prelate but as to the Custom and antient Laws of this Realm originally established as Laws of the same by the said Sufferance Consents and Custom and none otherwise It standeth therefore with Natural Equity and Good Reason that all and every such Laws Humane made within this Realm by the said Sufferance Consents and Custom that the King and the Lords Spiritual and Temporal and the Commons representing the whole State of this Realm in the most High Court of Parliament have full Power and Authority not only to dispence but also to authorize some Elect Person or Persons to dispence with those and all other Human Laws of
received no little Advantage from a Manuscript of that judicious and learned Judge the late Mr. Justice Price who having been many Years a Member of the House of Commons had made divers curious historical Collections with several Notes and References relating to the Subject Matter hereof And in this Edition the Reader may find collected from authentick Records and Histories all that is necessary to be known touching the Rights and Privileges of Parliaments and in a great Measure the legal Prerogatives of the Prince and just Liberties of the People The CONTENTS CHAP. I. Of Parliaments in general Shewing their Antiquity Names Natures Kinds and Qualities British Saxon c. Ordinarily annual and without Summons Extraordinary on Summons pro arduis c. Of the three Estates Bishops no essential Part excluded elected created by Patent Commons ever represented and how Their Right to a Free Election of all Magistrates c. and Consent to all Aids and Taxes This Right invaded by the Norman Kings William I. and II. Reslored by Henry I. Of English Parliaments in his Time who the Magnates and Barones Regni then were Of Coronation Oaths c. Page 1. CHAP. II. Of the Dignity and Excellency of Parliaments The Supream Power of the Kingdom and when Free Protectors of the People's Rights and Preservers of the legal Government and Constitution Of the three Estates and to what End assembled Lords and Commons anciently sate together The highest Court of Justice c. Page 49. CHAP. III. Of the Power and Authority of Parliaments superior to the Law may judge the Greatest remove evil Ministers redress Grievances of all Kinds Their three Powers viz. Consultive Legislative and Judicial their absolute Power over all Persons c. Page 66. CHAP. IV. and V. Of the Power Authority and Jurisdiction of the House of Peers distinct from the Commons Page 90 101. CHAP. VI. and VII Of the seperate Powers and Authorities of the House of Commons both in general and in particular Cases Page 109 114. CHAP. VIII Shews their Power over their own Members and how executed c. Page 136. CHAP. IX Treats of the Election of Members of the House of Commons in general and of the several Statutes relating thereto Page 149. CHAP. X. Shews who may be Electors and theâ—r Rights Duties and Manner of Election with the Statutes and Oaths referring thereto Page 156. CHAP. XI Who may be elected their Qualifications and Duties c. with such Statutes Oaths c. as concern the same Page 180. CHAP. XII Of the Returns to Parliament and of Amendments of Returns the Sheriffs and other Officers Duty therein with such Statutes and Oaths as relate thereto Page 226 CHAP. XIII and XIV Of the Manner of Election of the Speaker of the House of Commons and of the Business and Duty of the said Speaker Page 263 272. CHAP. XV. and XVI Of Orders to be observed in and by the House of Commons or the Members thereof Page 278 285. CHAP. XVII Of the Manner of passing Bills c. in the said House Page 306. CHAP. XVIII XIX and XX. Concerning Committees in general as also of the Orders Powers and Proceedings of Grand Committees and of Standing Committees c. Page 327 336 341 CHAP. XXI Of Sessions of Parliament what makes a Session as also of Prorogations and Adjournments Page 347 Note CHAP. XXII Of the proper Laws and Customs of Parliament and of Acts and Ordinances Page 358. CHAP. XXIII Of the Privilege of Parliament with the Statutes for regulating it c. Page 379. The APPENDIX being the Case of Sir Francis Goodwyn admitted a Member though returned outlawed c. Concluding with divers additional Pariculars relating to the Privileges and Duties of Parliaments Page 415. Lex Parliamentaria OR A TREATISE OF THE LAW and CUSTOM OF THE PARLIAMENT of England c. CHAP. I. Of Parliaments in General their Definition constituent Parts c. with a brief Inquiry into the Original and Nature of our British Saxon and Norman Parliaments THE Word Parliament Minshew in verbo Parlamt in French Parlement and in Spanish and Italian Parliamento is Spelm. Gloss verbo Debate See Coke on Littl. p. 110.164 in its principal Part deriv'd from the French Parler to speak and as Lord Coke and some Others conceive The General Council or National Assembly of this Kingdom is so call'd Spelm. Gloss in verbo Parlament Hales of Parliaments 122. Elsing of Parliaments 167. 4 Inst 8. Bohun's Collection 353. because every Member thereof should in the Matters there debated Parler la Mente i. e. Freely speak his Mind And tho some Authors have oppugned this Derivation yet tis evident from the very Nature and Essence of a Parliament That every Member thereof ought to speak his Mind freely in what relates to the Publick Welfare And this Freedom of Speech is now constantly claimed by the Speaker of the House of Commons at the first Meeting of every New Parliament and in insisted on as a Claim of Right The Word Parlament is in France now taken for one of those High Courts of Justice in that Kingdom Minshew ut supra See Vincent Lupanus lib. 2 c. Parliament No. 28. wherein Men's Causes and Differences are publickly heard and determined without further appeal Of these Parliaments there are Seven viz. 1. Paris now superiour to the Rest 2. Vide Du Haillan Pasquier c. of the Fr. Parlements Tholouse 3. Grenoble 4. Aix 5. Bourdeaux 6. Dijon 7. Roan whereto some add an 8th viz. Rhenes in Bretaigne But with us in England or rather Great Britain The universal Assembly of all the Estates of the Kingdom i. e. The King Sir Tho. Smith De Repub. Angl. lib. 2. c. 1.2 Lords and Commons wherein every Freeman of the Kingdom is said to be present either in Person or by Representation and who are met together for debating of Matters touching the Commonwealth especially for the enacting of Laws and Statutes is properly called a Parliament Cro. Jur. f. 1. c. Cambd. Brit. 6. c. 4 Inst 1. and such Laws and Statutes when agreed on are significantly term'd Acts of Parliament Indeed various Authors Of the three Estates viz. 1. King Cotton's Records 709.710 4 Inst 1. Hales of Parliaments 1. Finch's Nemotecnia lib. 2. c. 1.2 The Lords Sadler's Rights of the Kingdom p. 79. to 93. Kelway's Reports 184. Stamf. P. Cor. 153. See Bagshaw's Reading p. 17. to 21. have had various Sentiments and even Acts of Parliament differ about the three Estates some alledging the King to be the Head of but not included in the Number assert That the three Estates are 1st The Lords Spiritual 2dly The Lords Temporal And 3dly The Commons but Others more rationally say The King is one of the three Estates which compose the Parliament and that the second Estate is constituted of both the Spiritual and Temporal Lords jointly for say they Tho the Archbishops and Bishops are denominated Spiritual yet they sit in Parliament as Temporal
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
Lex Parliamentaria OR A TREATISE OF THE LAW and CUSTOM OF PARLIAMENTS Just Published Parliamentary and Political TRACTS written by Sir ROBERT ATKINS Knight of the Bath and late one of the Judges of the Court of Common-Pleas Containing I. THE Power Jurisdiction and Privilege of Parliament and the Antiquity of the House of Commons asserted Occasioned by an Information in the King's-Bench by the Atorney-General against the Speaker of the House of Commons II. An Argument in the great Case concerning Election of Members to Parliament between Sir Samuel Barnardiston Plantiff and Sir William Soame Sheriff of Suffolk Defendant in the Court of King's-Bench in an Action upon the Case and afterwards by Error sued in the Exchequer-Chamber III. An Enquiry into the Power of dispensing with Penal Statutes Together with some Animadversions upon a Book writ by Sir Edward Herbert Lord Chief Justice of the Court of Common-Pleas intitled A short Account of the Authorities in Law upon which Judgment was given in Sir Edward Hale's Case IV. A Discourse concerning the Ecclesiastical Jurisdiction in the Realm of England V. A Defence of the late Lord Russels's Innocency by way of Answer or Confutation of a Libellous Pamphet intitled An Antidote against Poison with two Letters of the Author of this Book upon the Subject of his Lordship's Tryal VI. The Lord Russel's Innocence further defended by way of Reply to an Answer intitled The Magistracy and Government of England vindicated VII The Lord Cheif Baron Atkins's Speech to Sir William Ashurst Lord Mayor Elect of the City of London at the Time of his being sworn in their Majesties Court of Exchequer Lex Parliamentaria OR A TREATISE OF THE LAW and CUSTOM OF PARLIAMENTS Shewing their Antiquity Names Kinds and Qualities Of the three Estates and of the Dignity and Excellency of Parliaments their Power and Authority Of the Election of Members of the House of Commons in general their Privilege Qualifications and Duties Of the Electors and their Rights Duties and Manner of Elections Of the Returns to Parliament the Sheriff's and other Officers Duty therein Of the Manner of Election of the Speaker and of his Business and Duty Of the Manner of passing Bills and the Orders to be observed in the House of Commons Of Sessions of Parliament as also of Prorogations and Adjournments Together with the proper Laws and Customs of Parliaments With an APPENDIX of a Case in Parliament between Sir Francis Goodwyn and Sir John Fortescue for the Knights Place for the County of Bucks 1 Jac. I. The SECOND EDITION with Large Additions LONDON Printed for J. STAGG in Westminster-Hall THE PREFACE IT must be confessed that Lex Parliamentaria or Parliamentary Law cannot be meant or intended to signify any Prescription or Application of Laws to that Power which in itself is boundless and unlimited This Collection therefore only shews what Parliaments have done and not what they may or ought to do The Parliament alone can judge of such Matters as concern their own Rights Authorities or Privileges And yet seeing the Phrase Parliamentary Law or Law of Parliaments has for some Ages past obtained Lord Coke Sir Matth. Hales's c. and that too among Authors of great Name I hope the present or any future Parliament will not censure me for a Word misapplied or for endeavouring to illustrate that Authority which is improperly denominated Parliamentary Law The Parliament itself is no doubt properly to be stiled The fundamental Law and Constitution of this Kingdom as it comprehends all Legal Powers whatsoever But as God and Nature influenced the Voice and Desires of the People to this Form of Government by Parliaments so it must be confessed that the same supream Power also influenced their Voices and Desires to establish this Parliamentary Government for the Safety and Preservation of the Governed and thereby constituted the Salus Populi to be the supream Law to whose Support all other Laws Powers and Authorities ought to tend 'Tis for this End Kings are created and for this End Parliaments assemble that so the Polity and Government of the Nation may be administered with Honour and with Safety for the Good of the whole Community Nor can it be denied but that Parliaments in former Times esteem'd it as their most incumbent temporal Duty to oversee recognize and resirain within the Bounds of Law the Commands and Acts of Kings and to take care that that great and honourable Trust reposed in the Hands of the Prince for the Good of the People might be rightly and duly administered and not perverted or abused to the Invasion of their Rights or the Subversion of the Constitution Brac p. 34 Flet p. 2.17 vide hic p. 89. 'Twas the Sense of this Duty of Parliaments induced both Bracton an eminent Judge under King Henry III. and Fleta a learned Lawyer in King Edward I's Time to record this great Duty of Parliaments to succeeding Ages And from this very Motive it was See the Preface to Privilegia Londini p. 6 7. that our antient Parliaments were so cautious as to oblige our Kings to swear at their Coronations Concedere justas Leges quas vulgus elegerit That they would grant such just Laws as the common People should choose See this Oath admirably well explained in Sadler's Rights of the Kingdom Page 71 88 91. c. From all which and much more that may be added I think it clearly appears That both Kings and Parliaments Lords and Commons and all Laws of Government whatsoever were in their first Intention instituted and ordained for the sole Good and Benefit of the People And where-ever all or any of them are perverted from that View they loose the Nature of their first Intention and ought to receive a contrary Denomination And from the foregoing Particulars I at present apprehend that the Lex Parliamentaria or Fundamental Law of Government in this Nation was not originally founded on any Capitulation or Compact between the King and the People as is usually done in Contracts of Bargains and Sales or other Purchases For that would infer a separate Interest between Prince and People But who will say that a British Monarch can by Law have a distinct Interest from his People Also the mutual Obligation that is established between the Prince and People by the Laws of this Kingdom have laid an unsurmountable Bar against any such Capitulation or contracting Project For by the original and inherent Nature of our Government there is such amutual Relation and political Connection created between the King and his People as in that natural Relation and Connection between the Head and the Members of the Body so that in neither Instance can the Head say to the Members I have no need of you c. This mutual Relation between Prince and People seems to have been interwoven in the fundamental Being and impressed in the very Heart of our Constitution c. The Publisher here thinks fit to declare That this Book has
like Assemblies were in Practice among the antient Britons Rymer's View of Govern p. 13. 14. c. Gauls and Germans and other Northern Nations may in some Measure appear from those noble Remains of Caesar and Tacitus Caesar De Bello Gallico l. 5. p. 87. For the Former speaking of the Britons says Summa Imperii Bellique administrandi Communi Concilio permissa est Cassivellauno That the chief Power of administring the Government and Command in War was by a Common Council or Parliament committed to Cassibellan Tacitus de Moribus Germanor c. and the Latter treating of the German Customs De Minoribus Rebus Principes consultant De majoribus omnes i. e. That in smaller Matters their Princes only consult or determine Rymer ut ante Sadler's Rights p. 79. but if the affair be weighty they all consult as in a common Assembly or Parliament Et quod Reges Principes audiuntur magis suadendi Authoritate quam jubendi potestate i. e. that the Prince's Authority consisted rather in Persuasion than in Coertion Et quod Principes c. Communi Concilio Eliguntur c. But the better to clear this Point touching national Assemblies especially those of the Britons and Saxons in this Island I shall here add the ensuing Inquiry The Denominations of a Parliament Denomination of Parliaments or National Assembly have been various according to the Language and Phrase of Speech of the several Nations where Used and Practised Selden de Synedriis Lib. 2. c. 4. sect 1 2 11 c. Lib. 3. c. 14. 15. De Successione Pontif c. 12. See Genes c. 11 14 23 c. Thus the Jews had their Great Sanhedrin consisting of the Prince the Rulers of the People and the Heads of their Tribes and Families and in this manner we find their Parliaments assembled in the Days of Saul David Solomon Rehoboam c. Nor was Moses the first Modeller of a National Assembly or Parliament the Scripture itself seems to contradict it and doubtless there had been something Equivalent to such collective Consultations from the first Instant of congregated Societies nay some spiritualizing Heads have stretch'd the Pattern to a Time antecedent the Existence of Humanity and almost coeval with Time itself These not contemplating Oriental Idioms Derive both the Doctrine of the Trinity and the three Estates of Parliament Genes c. 1. v. 26. from that uneffated Speech Let us make Man c. But however heavenly their Conjectures are our inquirers herein must tend another way and yet to me it seems apparent that Parliaments existed before what the Scriptures Record i. e. among the Assyrians Babilonians Caldeans Aegyptians c. and tis most evident the inspired Legislator confesses himself in a gross Error by attempting to Govern without their Assistance and therefore instead of consulting the Divine Oracle condescends to receive the Instructions of an Arabian Compare Exod. c. 18. v. 21 22 c. with Deut. c. 1. v. 13 c. Take yee i. e. Elect yee c. Jethro was Prince of Midian in Arabia whereby he now Modelled his Theocracy according to a Parliamentary Plan of Government Behold an unenlighten'd Shepherd directing and enlightening the illuminated Friend and boasted Companion of God! A Riddle might puzzle our best Divinity and prove it to be not altogether from above That the Persians whose Language and Laws bear no small analogy with our own had also the like Parliamentary Assemblies is not only intimated by those Texts which mention the Laws and Decrees of the Medes and Persians but is Universally confessed by all the Greek and Latin Historians That noble Description of their Government left us by Xenophon may justly attract our Approbation and Imitation Xenoph. Cyripaed p. 8. 20. and their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as strongly incline us to desire FREE Parliaments as their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to insist on FREE Elections The Greeks had also their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Notae ad Smyrneo Decreta p. 11 13 c. or Conventus Primatum Wherein not only the Kings and great Men but even the Commons assented to their Decrees or Statutes as is Evident from those Marble Monuments containing the Statutes and Decrees of those Grecian Assemblies as in that of the People of Smyrna and Magnesia c. vide Opera Seldeni Vol. 2. Tom. 2. The like Assemblies were in use among the Romans Paul Manut De Senatu Romano Lib. 1. c. 1. and as Paulus Manutius observes Instituted by Romulus in the Infancy of their Monarchy and continued in some Degree thro' all the changes of that State They were call'd in Latin Comitia quasi Coitia a coeundo quia coeunt ibi deliberaturi de Salute Republicae i. e. from Assembling or meeting together because they therein Assembled to Deliberate for the Good and Safety of the Common Wealth Such an Assembly is called in Low Dutch British Parliamts See Orig. Jurid p. 14. Pref. 2. 4. ad L. L. Hocli i. e. Sub Anno Christi 1. Rijcs-dach the King's Day But more properly in High Dutch or the German Language Reich-stagh i. e. Stabilimentum Regni For that it is the chief stay and support of a Kingdom And that the like meetings were in Practice among the antient Britons is Evident from the Preface to the Laws of Hoel Dha who denominated such Assemblies Gynnulleidfa or Cyfrythin-'y Doethjon i. e. Conventus Legalis because Laws were therein made and Chyd-Synniedigaeth i. e. Consessus Magnatum from whence Mr. Cambden's Error may appear Camb. Britannia in Wiltshire who on occasion of the Pillars on Salisbury-Plain translating the British Words into Latin renders 'em Chorea Gigantum when they properly signify Conventio Magnatum See Baxters British Glossary verbo Laberus or the Assembly of great Men. That building being apparently Erected for the Use of such an Assembly there still remaining not only the marks of Distinction where the several Orders or States of Parliament Sate This Authors own observations but very Visible incisions in those Pillars and divers intermediate Stones for supporters do manifestly prove how and in what order the Seats or Benches were therein fix'd and placed Besides which Spelman's Gloss 386. Antiquus Mos suit ut Sub. Dio intra Sepimentum aliquod Militare ob Salutis gratiam convenire compagenses c ibid. Baxter ut supra Selden's Janus 93. the Scituation of those Parts being near the Heart of the Kingdom a considerable Motive for Northern Princes to hold their general Councils and national Assemblies near the midst of their Dominions as also the Nature of the Place being on a wide open Plain and consequently not so liable to either Force or Treachery as more Popular or covert Places with divers other Motives may rationally induce the old Britons to choose that Place for the holding of their general Councils or Parliamentary Assemblies Note the several Prefaces to the Laws of Howell Dha Vid. Cot. Titus D. 2 ibid Caligula A. 3. N. 3. who lived
LL. Canuti c. 13. 14. into his Place Which Power of deposing Earls and other Officers appears to have been vested in their Folkmotes by express Provision of divers Laws both of the Saxon and Danish Kings I confess in the Case of Earl Tosty Sax. Chr. p. 171. tis said That after the People had so elected Morker to be their Earl they certified their Election to the King and intreated his Assent thereto to which the King yielded and on the Vigils of Simon and Jude sent them a Confirmation or Renewal of the Laws of King Canute i. e. That for deposing Earls c. This shews That tho the King had the Power of confirming the Earl in his Office yet he could not of himself appoint any Earl over the People without their own free Election and Consent in a Folkmote or County Parliament Now Vide Edv. Cons 32. 35. as all Titles and Dignities in the Saxon Plan of Government had both Officium and Benesicium annex'd thereto so there were divers previous Qualifications necessary to enable the Persons to be elected to such Dignity or Office Thus in Order to be a greater Thanes-worthy Qualifications and Elections of Peers c. or worthy to be elected one of the greater Thanes i. e. Lord of a Hundred he was to have such an Estate and to be an Earl or Alderman's-worthy or worthy to be elected an Earl or Alderman of a County he was to have such an Estate with other Qualifications respecting each Office So that three Things at least ought to concur in constituting an Alderman or Earl of a County as also of a greater Thane or Lord of a Hundred both which with the Bishops then made up the Body of their ordinary Folkmotes and Witenagemotes viz. 1st He was to have an Estate in Lands with other Qualifications Secondly The Election and Consent of such Freemen over whom he was to preside And thirdly The Royal Assent or Confirmation usually in Parliament And further as all the Magnates Regni Who ordinarily were Representatives of the People That Bishops were elected by the People even after the Conquest See Sadlers Rigts of the Kingdom p. 1178. 133. 134. 140. c. and all other Officers and Magistrates whether Civil or Military and even Ecclesiastical as Bishops c. were in those Times elected to their respective Offices by the Persons over whom they were to preside so they were liable for Misbehaviour in their Offices not only to a Deprivation but also to be otherwise censured and punished in their Folkmotes and other Conventions and consequently were under the strictest Guard to keep to their Duty and perform their Trust both in their Folkmotes or County Parliaments as also in the Grand Witenagemote or Supream Parliament And tho such Officer presided in the former as their Prince or King yet in the latter he was but their Representative And thus the Magnates Regni Nota. or Lords of Parliament were originally and ordinarily no other than the Representatives of the Commons or Freemen Tis true in extraordinary Cases Spel. Glos verbo Subsidium as in Granting of New Ayds or Taxes as Danegelt c. the Commons likewise attended in Parliament either in Person or by their Deputies specially authorized but such Ayds and Taxes were then very rare See Mr. Madox's Hist Exchequer c. 7. 8 9 c. the Crown in those Times being abundantly supply'd in ordinary Cases by its Rents and Revenues both certain and casual as Fines Forfeitures Escheats the third Part of the Profits of all Leets Hundreds Counties and other Courts Ayds to make the King's eldest Son a Knight Vide Paulus Manut. De Legihus Romanis to marry his eldest Daughter c. all which I take to be of a British or Roman Original Besides which if we consider the vast Profits and Revenues then arising from the antient Demesne and other Crown Lands we may easily Grant That the King had rarely any Occasion for extraordinary Ayds For the Tenants of those Lands Spel. Glos verbo Villenagium holding the same in Villenage and they themselves being esteemed as the Villani Regis the King could not only Tax 'em at his Pleasure but also appoint 'em what Officers and Magistrates and even out 'em of their Possessions as he pleased and therefore Tenants in antient Demesne while they continued such 〈◊〉 were never esteemed Freemen they never served on Juries never voted for Members of Parliament nor ever contributed to their Expences In short They were thought to be so far under the Power and Influence of the Crown as not to be in any wise entrusted with the Peoples Liberties Sir H. Spelman in his Glossary In verbo Subsidium p. 527. says thus I find not that the antient Saxon Kings had any Subsidies c. But they had many Customs whereby they levyed Money of the People or Personal Services towards building repairing of Cities Castles Bridges Military Expeditions c. call'd Burgbote Bridgebote Herefare Heregeld c. But when the Danes oppress'd the Land King Egelrede or Ethelred Anno 1007 yielded in a Parliament to pay them 10000 l. which was afterwards encreased to 36000 l. then to 113000 l. and lastly Note this Assessment was doubtless with Consent of the Commons Q. If Church-men were not Procuratores aut Participes Danici Subsidii to a yearly Tax or Tribute of 48000 l. This was called Danegeld and for raising it every Hyde or Plough of Land was cessed at 12 d. yearly the Church-Lands excepted which therefore was called Hydage and Carvage which Name afterwards remained upon all Subsidies and Taxes imposed upon Lands for sometimes it was imposed upon Cattle and then twas called Horngled But tho' the Saxon Witenagemotes were so ordinarily held per Regem cum Magnatibus Regni Yet it is very Evident that when any matters were to be there Transacted which in general concerned the Body of the Freemen of the Kingdom in such cases the Rule was Quod tangit omnes tractetur ab omnibus and nothing could be determined in their Parliaments relating to Peace or War new Ayds Taxes or other publick charges on the People without their Common Assent either in Person or by special Representatives Tis true See Madox ut ante the Saxon Kings had very rarely any such Ayds Taxes or Subsidies as are granted to our Kings at this Day The vast Profits arising to the Crown in those Days consisted in the Rents and Produce of their antient Demeasn Lands the third Part of the Profits of all the County and other Courts in the Kingdom besides the many other Incomes on Fines Forfeitures and other Penalties and other Revenues certain and casual made it seldom necessary to Tax the People by a Parliament They had also says Spelman many Customs In verbo Subsidium whereby they levied Money of the People or exacted their Personal Services towards the Building and Repairing of Cities Castles and Bridges for Military Expeditions c. which they called Burg-bote
Vide ante Brig-bote Here-fax Here-geld c. Tho' we may well conclude those Customs and Duties to have been originally granted by Assent of the Commons in a Parliamentary Assembly as 'tis certain Peterpence Danegeld Spelman ib. Horngeld c. were As to Peterpence Idem in Verbo Romascot See Fedus Edvardi and Guthurui c. 6. LL. Edgari c. 4. LL. Caunti c. 15. LL. Hen. 1. c. 12 c. In verbo Subsidium otherwise called Romescot and Romefee whether the same was first granted by King Ina as is generally said or by King Offa as others affirm 'tis plain a Parliamentary Consent was had thereto as the Laws touching the Regulation of the same doe manifestly prove And as to Danegeld c. Sir Henry Spelman says The Danes having oppressed the Land King Egelred i. e. Ethelred in the Year 1007 yeilded i. e. by consent of Parliament to pay them for obtaining Peace 10,000 l. which was after encreased to 36,000 l. then to 113000 l. and lastly to a yearly Tribute of 48,000 l. and for the raising of this Tax Note this Tax appears to have been promoted by some Church-men who tis probable shared the plunder Splem ut Supra every Hyde or Plough Land was charg'd with 12 d. Yearly Church Lands excepted and thereupon twas called Hydage which Name was afterwards apply'd to all Taxes and Subsidies imposed on Lands but if the Tax was laid on Cattle 'twas call'd Horn-geld The Normans says the same Author called these sometimes from the Latin and Greek Word Taxes and sometimes from their own Language Tallagia signifying to cut or divide from as the Word Excise doth at present and sometimes they denominated 'em according to the usual Words beyond Sea Auxilia and Subsidia Ayds and Subsidies and accordingly W. 1. had those Taxes or Tallages and made Laws for the manner of Levying them Vide LL. W. 1. p. 125. Rights of the Kingdom 115. But this also seems to be by pretence or colour of I cannot call it a free Parliament But to return to the Saxons and their manner of granting Aids and Taxes Hist Aethelwerdi Li. 3. we may observe that King Egbert who is generally said to have been the first Monarch of England seems to have attained his Conquests and Extent of Dominion chiefly by the extraordinary Aids and Supplies granted by his Commons See Ingulph p. 6.12.17 and that by the same Means he was enabled so vigorously to Repel the Danes c. To this purpose we meet with a Passage in the History of Croyland viz. That this King confirmed a grant of Lands to that Abby coram Pontificibus Majoribus totius Angliae i. e. as I apprehend before the Prelates Peers and greater Commons of all England who as the History saith were then met together at London consulting how to provide Aids and Supplies contra Danicos Piratas c. The whole Passage proves this Transaction to have been in a general Council or Parliament met purposely for the raising of new Aids and the Word Majores seems plainly to intend the Representatives of the Commons and to be of a lower Degree than the proceres or Temporal Peers Vide Bed Hist And that the Commons attended at that Consult may not only appear from divers of the Names Subscribed to that Charter But 'tis also evident from Bede and other antient Authors that the Word Majores was then used to signify such Officers and Magistrates as we now Term Sheriffs of Counties and Mayors or Bailiffs of Towns and Cities And tho' the Word Danegelt Ingulph is not quite so antient as the Time of K. Egbert yet that the first grant thereof was with consent of the Commons appears from the Laws of Edward the Confessor Hoveden who first remitted it it having been diverted from its Original and true Institution the very Cause ceasing under the Kings of the Danish Race who notwithstanding continued the Tax and which tho' remitted by the Confessor was afterwards revived by the Conqueror See Laws of W. 1. as a proper Expedient for augmenting regal Power and yet this Revival seems also to be by consent of or under colour of a Parliament But further In the abovementioned History of Croyland Hist Ingulphi ad Annum 855. there is a remarkable Charter made by Ethelwulph the West Saxon King who was Son and Successor to K. Egbert and the Father of his four Successors i. e. Ethelbald Ethelbert Ethelfred and Alfred Rights of the Kingdom p. 84 85. The Charter itself imports a grant of Lands Tythes c. to that Abby and in the Body of it is said to be made cum Consilio Episcoporum Principum c. and is Subscribed by and in the presence of the Kings of Mercia and East Anglia Omniumque Archieporum Episcoporum Abbatum Ducum Comitum Procerumque totius Terre aliorumque Fidelium infinita Multitudine Qui omnes Regio Chirographo Laudaverant A pregnant Instance of a Saxon Parliament compos'd of Kings Lords and Commons and of the concurrent Assent of the three Estates in the passing of the Grant I cannot here forbear observing an Expression in that Introduction to the Laws of K. Alphred which might seem strange in a King at this Day where speaking of his Establishing those Laws See Wilkins p. 34 and Lambard 26. Ex consulto Sapientum Suorum By consent of his Parliament he goes on thus Fortham ic ne durst gedyrst-laecan c. for that he durst not attempt to do it otherwise and it concludes thus Ergo Ego Alphredus omnibus Sapientibus meis hic usus sum et illi dicebant quod ipsis omnibus bene placuerint ea quae Statuta Suut ut observarentur And Andrew Horn a Learned Lawyer Mirror of Justices who wrote Temp. Ed. 2. in many places of his Book Speaks of K. Alphred's Parliaments and that his Laws were made by Assent of his Great Wise Men and Commons He Expresly mentions and applauds that Law of his that Parliaments ought to be held twice Yearly and Declares the Non-observance of that grand Law of State to be one of the highest abuses of Law and Government I might here also take notice of other Parliaments of the same King Wilkins LL. Saxon p. 51. particularly that Treaty entered into between him and Guthrun the Dane which was made Ex Sapientum anglorum Consilio and I might further shew that all the Acts of State both of him and his Saxon and Danish Successors were made and transacted with the consent of the Commons as well as Consilio Magnatum But the Point is so fully proved in our antient Historians as well as in the stile used by those Princes in their Enacting of Laws that I conceive my further Endeavours to illustrate it would prove but holding a Candle to the Sun And as for the Norman Times tho' the two Williams Father and Son endeavour'd what they could to suppress the Rights of the Commons yet we find on the Death of the latter the
Commons of England began in some Measure to be Restored to their antient Rights i. e. the Election of their Officers and Magistrates Civil and Ecclesiastical and their being Represented in Parliament 'Tis True W. 1. Soon after his acquisition of the Kingdom Swore to the Observation of the Laws of Edward the Confessor but added a very odd Limitation to the Oath viz. with such amendments i. e. alterations as he with advice of his Council should make therein This shewed he had little regard to those Laws and the Rather for that the Observance of them would in a great Measure deprive him of Nominating the Officers and Governors of the Kingdom a tender Sore to a Prince that aims at arbitrary Power He therefore took upon him the Nomination and Disposition of all Offices and Dignities Sold and Distributed Earldoms and Baronies at pleasure and seems to have utterly deprived the People of their Right of Election of Magistrates and Representatives except for London without which no People can be esteemed Free and having afterwards settled his Revenue by the Record of Domesday Book he had thence forward no occasion for supplies in Parliament W. Rufus succeeded him on the like Foot and on his Coronation Swore the like Oath with the like Explanation i. e. to observe the Confessors Laws with such amendments i. e. alterations therein as had been made by his Father and H. 1. on his coming to the Throne Swore to the Observance of the same Laws with such alterations as had been made therein by his Father and Brother Hitherto the Yoak of the Norman Conquest and Tyranny had layn heavy on the Necks of the Commons of England but now their Day of Redemption seem'd to draw Nigh for in a few Years after this Robert the Eldest Son of W. 1. being return'd from the Holy Land and coming into England set up his claim to the Crown and made such a Party among the Norman Nobility here that King Henry was forced to throw himself into the Arms of the English and thereupon called a Parliament at London which seems to have been composed almost if not wholy of an English House of Commons The Speech made by that Prince at the Meeting of that Parliament is Recorded by Mat. Paris and does so remarkably discover the Restoration of the Rights of the Commons and the Renovation of the antient Constitution by granting the Original of our Magna Charta and other Liberties that I cannot forbear giving the Speech and its Introduction to the Reader both in Latin and in English viz. Magnatibus igitur Regni ob hoc Londonium Edicto Regio convocatis Rex Oratio Regis Henrici ad Anglos See Mat. Paris old Edicon p. 83. and in Watts p. 42. Henricus talibus alloquiis super Mel Favum Oleumque Mellitis Mollitis blandiens Dixit Vos Angligeni Amici sideles mei Indigenae ac Naturales Nostis veraci Fama referente qualiter Fratermeus Robertus electus et per Deum Vocatus est ad Regnum Hierosolymitauum feliciter Gubernandum et quam frontose illud infeliciter Refutaverit Merito propterea a Deo Reprobandus Nostis etiam in multis alijs Superbiam et ferocitatem illius et quia Vir bellicosus Pacis Impatiens est Vosque Scienter quasi contemptibiles et quos Desides vocat Glutones conculcare desiderat Ego vero Rex humilis pacificus Vos in Pace in antiquis Vestris Libertatibus prout crebrius jurejurando promisi gestio confovere et vestris inclinando Consilijs consultius ac Mitius more Mansueti Principis Sapienter Gubernare Et super his si provideritis Scripta subarata roborare et iteratis Juramentis praedicta certissime Confirmare Omnia Videlicet quae Sanctus Rex Edvarvardus Deo inspirante provide Sancivit inviolabiliter jubebo observari ut vos mecum fideliter Stantes Fratris mei immo et mei totius Regni Angliae Hostis cruentissimi Injurias potenter animose ac voluntarie propulsetis si enim Fortitudine Anglorum roborer inanes Normanorum Iras Nequaquam censeo formidandas The King having by his Royal Edict K. H. â— his Speech to his Eng. Parliam called the English great Men of the Kingdom to London for that intent harangued them with a most gracious Speech smoother than Oil and sweeter than Honey or the Honey-comb thus My belov'd and faithful Friends Englishmen You who are the true born Inhabitants It seems the Norman Nob. tho' Summon'd refused to attend H. Parliam and to have joined with Robert and natural Proprietors of this Kingdom You know what undeniable Truth is founded in the Report that my Brother Robert hath been Elected and by God call'd to the glorious Government of the Kingdom of Jerusalem and how shamefully he has rejected that call for which Cause he deserves to be abandoned by God You also know among many other his ill Qualities that he is of a proud and brutal Disposition and that being as it were nurs'd in War and Blood he is an utter stranger to Peace that he publickly Treats you as contemptible and calls you Slaves and Gluttons and that his whole aim is to Tyrannize over you But I a mild gentle and pacifick King desire to protect you in Peace and in the enjoyment of your antient Laws and Liberties as I have often Sworn to do and to be guided by your Counsels whereby I may Govern you with the more Prudence and Moderation as a Mild and a gentle Prince Nay more than this if you will provide a Charter I am ready to confirm and Establish thereby and on my renewed Oath inviolably observe all those good Laws which the holy King Edward being inspired by God did with Wisdom ordain That so you standing faithfully and couragecously by me we may powerfully resist and repell such injuries as may be attempted against us by this Brother of mine who is the bloody Enemy of you and of the whole Kingdom of England For let me be but assisted with the Courage of you Englishmen I shall not in the least fear the vain Threats of those upstart Normans From the foregoing Passage concurrent with other circumstances of those Times I conceive we may raise the following conclusions 1. LL. Ed. Conf. c. 33.35 c The Convention abovemention'd being Convoked Edicto Regio c. was one of those extraordinary Parliaments before mentioned met together to consult De arduis Negotijs Regni i. e. how to secure the Possession of the Crown and not one of those stated and ordinary Parliaments which by the Saxon constitution were to be held twice Yearly viz. about the beginning of May and beginning of October which ordinary Parliaments were afterwards by divers Statutes LL. Ed. gari c. 5. See 4. Inst so 9. 36. E. 3. c. 10. St. 4. E. 3. c. 14. reduced to once a Year certainly i. e. whether Summoned or not or oftener if need were i. e. if there was any occasion to call one by a special Summons
David was consecrated Bishop of Bangor by the then Archbishop of Canterbury but tis expresly said That he had been thereto elected A Principe Clero Populo Walliae i. e. by a Welch Parliament And in the same Reign one Gregory an Irish Abbot was elected to the Bishoprick of Dublin a Rege Hiberniae Clero Populo an Irish Parliament So that the Commons at this Time were a a constituent Part of the Scottish Welch and Irish Parliaments as well as with us in England And in the Year 1128 Vide Sax. Chro. sub An. 112. I find that fam'd Scholar Gilbertus Universalis to be elected and consecrated Bishop of London Annuente Clero Populo This seems at a Parliament at London But this Right of the Commons in electing Bishops does more clearly appear in H. the 2d's Time when all Historians agree it to be a general Custom both here and in France and seems founded on divers express Canons of the Primitive Church Insomuch as Mezeray in his History asserts That until that Time i. e. the Middle of the 12th Century The Voice of the People in electing Bishops was esteem'd the Voice of God The Successors of K. H. 1. K. Steven Mat. Par. 51. took their Coronation Oaths in a Form much more enlarged for the Ease of the Commons than those of King Henry 1. or his two Predecessors Thus K. Steven swore Coram Regni Magnatibus i. e. the Lords and Commons convoked at London Ad meliorationem Legum juxta voluntatem Arbitrium singulorum which must mean That he would reform the Laws according to their common Consent in Parliament and afterwards going to Oxford i. e. to hold his Parliament Ibi confirmavit Pacta quae Deo Populo in Die Coronationis suae concesserat This I take to be meant of Danegelt Hydage Cornage c See there some Particulars of his Oath whereof the 3d is Tallagia Quae autecessores ejus accipere consueverant in aeternum condonaret And in the following Year on the Arrival of Rob. Earl of Glocester Ibid. 51. this King was again sworn to observe the Good Laws of the Realm and thereof granted his Charter and see there the conditional Homage paid to the King by that Earl I might here pursue this Thread of Coronation Oaths in those of H. 2. R. 1. K. John Vide Ib. 42. in pede 51. and the Praef. to Privilegia Londini Rights of the Kingdom p. 88. c. but my Intention is not to trace the Practices of Kings in taking Coronation Oaths an unlucky Blot remains in History as to those Princes I have already named it being generally observed Impudenter fregerunt c. An Author who seems to be very conversant in Matters of this Nature and observes thus The King's Oath is to confirm the just Laws which the Commons not the Lords shall elect or choose in Latin Quas vulgus elegerit and in the old French Oaths of Edw. 2. and Edw. 3. tis Les quels la Communaute aux Eslue And in the English Oaths of H. 8. and other Princes See Sir R. Atkyns ut supra p 28 29. tis Which the Commons of the Realm shall choose And that the antient Writs for summoning the Commons are Nobiscum tractur consilium impensur de arduis Negotiis Regni And the same Author The King dom's Rights ut supra a little before says thus The Mirror as well as Tacitus shews how our Lords were originally raised out of and by the Commons and with Bracton Fleta c. gives them a judicial Power over the Rest c. Nay the Modus Parliamenti will not only tell us That the Commons have better and stronger Votes than the Lords but that there may be a Parliament without the Prelates c. For there was a Time wherein there was neither Bishop nor Earl and yet there were Parliaments without them but never without the Commons and concludes with the Impossibility of holding a Parliament without them thus Parliamentum sine Communitate tenebitur pro nullo quamvis omnes alii status plenarie ibidem intersuerint Lastly Sir R. Atkyn's Power of Parliament p. 32. The Freeholders of England had originally the Election of the Conservators of the Peace who are become out of Date by introducing Justices of Peace who have their Power not by any Election of the Freeholders as of Right they ought nor are they nominated by them but by the King and have their Power by his special Commission c. i. e. contrary to the Common-Law And how and by what Means and in what tempered Times this came about may be read in Lambards Eirenarcha Lambards Justice f. 16.19.20.147 c. It was done by Act of Parliament in the Beginning of K. Edw. the 3d's Reign and in his Minority when the Queen and Mortimer ruled all The Freeholders did also originally Sir R. Atkyns supra and from all Antiquity at their Folkmotes or County Courts chuse their Heretochii and what were these You may call them Lords Lieutenants Deputy Lieutenants or it may be Lieutenants Generals For the Saxon Laws tell you their Duty and Office LL. Ed. Conf. 35. Vide ante and that they were to be Ductores Exercitus c. All these great Officers were chosen by the Freeholders as our Knights of the Shires now are and as Conservators or Justices of Peace formerly were and as Coroners and Verdredors formerly Men of great Power still are by Writ at the County Courts These were mighty Powers and Freedoms Sir R. Atkyns supra See 4 Inst 174.558 and were enjoy'd by the People as antiently as any of our Records do reach which are more authentic Proofs of our Constitution than the Writings of Modern Historians c. And do best shew the native Freedom which the People had by the antient Constitution of our Government contrary to all the new Doctrines of our late Writers and prove That the Privileges and Freedoms we yet enjoy are not meer Emanations of Royal Favour as our Novellists would impose upon us CHAP. II. Of the Dignity and Excellency of Parliaments THE Parliament is the Foundation and Basis of Government Rushw Coll. 3d Part Vol. 1. fo 739 and consequently of the Peace and Happiness of the Kingdom as it creates the Law by which we are ruled and governed in Peace and Quietness so it preserves the Law in Power and Authority It watches over our Religion that it be not supplanted and exchanged by suppositious Innovations or the Truth and Substance of it eaten up with Formality vain Pomp and unnecessary Ceremonies It is the Conservative of the Rights and Liberties of the Subject and the Corrective of Injustice and Oppression which by equal Right is distributed to all and every Man hath that Benefit and Protection of Justice which is due to him It is that by which alone common Necessities can be provided for and Publick Fears prevented so that I may say not only the Peace and Happiness and well Being but the very
Being of this Kingdom can have no other Bottom to stand upon but the Parliament it being the Foundation upon which the whole Frame of the Commonwealth is built The Parliament is the Cabinet Ib. 201. wherein the chiefest Jewels both of the Crown and Kingdom are deposited The great Prerogative of the King and the Liberty of the People are most effectually exercised and maintained by Parliaments c. Parliaments are the Ground and Pillar of the Subject's Liberty Ib. 587. and that which only maketh England a free Monarchy Parliaments are says the Earl of Warwick Ib. 752. Admiral of the Sea to John Pym Esq July 6 1742 That Great Council by whose Authority the King's of England have ever spoken to their People Both Houses of Parliament are the Eyes in the Body Politick Ib. 702. whereby His Majesty is ought by the Constitution of this Kingdom to discern the Differences of those Things which concern the Publick Peace and Safety thereof The Parliament is the Mouth of the King and Kingdom Vox Dei c. Parliaments says K. C. 1. in his Declaration to all his Loving Subjects Rushw Coll. 3d Part Vol. 2 p 40. after his Victory at Edgehill on the 23d of October 1642 are the only Sovereign Remedies for the growing Mischiefs which Time and Accidents have and will always beget in this Kingdom That without Parliaments the Happiness cannot be lasting to King or People The Parliament is to be considered in three several Respects first Ib. p. 45. As it is a Council to advise 2dly As it is a Court to judge 3dly As it is the Body Representative of the whole Kingdom to make repeal or alter Laws L'Assemblie de Troys Estates Cestascavoir Finch's Nemotecnia lib. 2. c. 1. fo 21. Roy Nobility Commons qui font le Corps del Realm est appel un Parliament lour Decree un Act de Parliament Car sans touts troys come si soit fait per Roy Seigneurs mes rien parle del Commons nest Ascun Act de Parliament i. e. The Assembly of the three Estates to wit the King the Nobility and the Commons which make the Body of the Realm is called a Parliament and their Decree an Act of Parliament for without all three as if it be done by the King and Lords but speaks nothing of the Commons there is not any Act of Parliament On the Restoration of King Charles the 2d the Commons resolved May 1. 1660. Journal Dom. Co. That this House doth agree with the Lords and do own and declare that according to the antient and fundamental Laws of this Kingdom the Government thereof is and ought to be By King Lords and Commons The Word Parliament is used in a double Sense 1. English Liberties p. 78. Strictly as it includes the Legislative Power of England as when we say an Act of Parliament add in this Acceptation it necessarily includes the King the Lords and the Commons each of which have a Negative Voice in making Laws and without their Joint Consent no new Laws can pass that be obligatory to the Subject 2. Vulgarly the Word is used for the Two Houses the Lords and Commons as when we say The King will call a Parliament His Majesty has dissolved his Parliament c. This Court is the highest Court in England Crompton's Juris p. 1. in which the Prince himself sits in Person and usually comes there at the Beginning of the Parliament and at the End and at any other Time when he pleaseth 4 Inst 3. during the Parliament The King is the Caput Principium and Finis of Parliaments It appears by Precedents That whenever a Parliament was sitting in the King's Absence Rushw Coll. Vol. 3. Part 1. p. 772. there was always a Custos Regni or a Locum Tenens Regis appointed This Court consists of the King's Majesty 4 Inst 1. sitting there as in his Royal Politic Capacity and of the three Estates of the Realm viz. the Lords Spiritual Arch-Bishops and Bishops who sit there by Succession in respect of their Counties Vide Dyfol 60. or Baronies parcel of their Bishopricks The Lords Temporal Dukes Marquesses Earls Viscounts and Barons who sit there by reason of their Dignities which they hold by Descent or Creation every one of which both Spiritual and Temporal ought to have a Writ of Summons ex debito Justitiae And the Commons of the Realm whereof there be Knights of Shires or Counties Citizens of Cities and Burgesses of Boroughs all which are respectively elected by the Shires or Counties Cities and Boroughs by Force of the King's Writ ex Debito Justitiae and none of them ought to be omitted And these represent all the Commons of the whole Realm and are trusted for them The King and these three Estates Ib. 2. are the great Corporation or Body Politic of the Kingdom and do sit in two Houses King and Lords in one House called The Lords House the Knights Citizens and Burgesses in another House called The House of Commons That which is done by this Consent Arc. Parl. 2. is called firm stable and sanctum and is taken for Law All the Judges of the Realm Towns Coll. 5.6 Vid. Cromp ton 1. Barons of the Exchequer of the Coif the King's Learned Council and the Civilians Masters of the Chancery are called to give their Assistance and Attendance in the Upper House of Parliament but they have no Voices in Parliament 4 Inst 4. but are made sometimes joynt Committees with the Lords Every Englishman is intended to be there present either in Person Arc. Parl. 3. Smyth's Common-wealth 74 or by Procuration and Attorney of what Preeminence State Dignity or Quality soever he be from the Prince be it King or Queen to the lowest Person in England And the Consent of the Parliament is taken to be every Man's Consent In antient Time the Lords and Commons of Parliament did sit together 2 Bulstro 173. See Cotton's Records 12.13.348 Post 60. in one and the same Room but afterwards they were divided to sit in several Rooms and this was at the Request of the Commons but yet still they remain but one Court And of all this I have seen the Records one in the Time of H. 1. where all of them did sit together and mention is there made of the Degrees of their Seats so in the Time of E. 3.39 No Man ought to sit in the High Court of Parliament 4 Inst 45. but he that hath Right to sit there For it is not only a personal Offence in him that sitteth there without Authority but a publick Offence to the Court of Parliament and consequently to the whole Realm It is to be observed 4 Inst 2. That when there is best Appearance there is the best Success in Parliament At a Parliament 7 Hen. 5. of the Lords Spiritual and Temporal there appeared but Thirty and there was but one Act pass'd of no great Weight In 50 Ed. 3. all the Lords appeared in Person and not one by
Proxy and so many excellent Things were done that it was called Bonum Parliamentum At the Return of the Writs Ib. 6. the Parliament cannot begin but by the Royal Presence of the King either in Person or Representation The King's Person may be represented by Commission under the Great Seal to certain Lords in Parliament authorizing them to begin the Parliament or to prorogue it c. When a Parliament is call'd Ib. 28. and doth sit and is dissolved without any Act of Parliament passed or Judgment given it is no Session of Parliament but a Convention It is an Observation proved by a great Number of Precedents Ib. 32. that never any good Bill was preferred or good Motion made in Parliament whereof any Memorial was made in the Journal-Book or otherwise Tho sometimes it succeeded not at the first yet it hath never dy'd but at one Time or other hath taken effect Matters of Parliament are not to be ruled by the Common-Law Ib. 17. If Offences done in Parliament might have been punish'd elsewhere Ibid. Vide 1 Inst Sect. 108. it shall be intended that at some Time it would have been put in Ure It doth not belong to the Judges Ib 50. to judge of any Law Custom or Priviledge of Parliament The Judges in Parliament are the King or Queen Sir Tho. Smith's Common-wealth 74 the Lords Temporal and Spiritual the Commons represented by the Knights and Burgesses of every Shire Borough-Town These all or the greater Part of them and that with the Consent of the Prince for the Time being must agree to the making of Laws It is the just and constant Course of Parliament Seld. Judic 95. to bring the Party accused to his Answer Yea tho he fly Justice yet to send out Proclamation into the Countries that he appear at a Day or else such and such Judgments shall be given against him What is done by either House Sir R. Atkyns Argument c. 14. according to the Law and Usage of Parliament is properly and in the Judgment of the Law the Act of the whole Parliament And what concerns the one must of Necessity concern the whole not meerly by Consequence but by an immediate Concernment as being one and entire The three Estates of Parliament are one entire Body and Corporation Ib. 34 41 51 55. Vide Rast St. 2. 3. E. 6. c. 36. Pref. All their Powers and Priviledges in the Right of them and in the Title to them are entire per my per tout and belonging to the whole Body of the Parliament tho in the Exercise of those Powers and sometime in the Claim of them they are distinguish'd and in the Practise of their Powers they are in many Things distributed into Parts All the Estates in Parliament are call'd by one common Name Ibid. as Commune Concilium Regni Magna Curia they are one Body Politic. It is said by Fineux Chief Justice That the Parliament at the Common-Law consists of the King Lords and Commons and they are but one Body corporate The Liberties and Franchises of the Parliament in the Right of them Ib. 55. are entire and due to both Houses for both make up the Parliament Knighton one of our best Historians doth notably disclose the antient Ends of calling Parliaments Knyghton de Eventibus Augliae l. 5. f. 2681. col 1.2 Pettyt's Rights c. in Pref. p. 43. 44. Hollings f. 1055. col 1. in saying Quod ex Antiquo Statuto Consuetudine landabili approbata c. That by an antient Statute and Custom laudable and approved which no Man could deny the King was once in the Year to convene his Lords and Commons to his Court of Parliament as to the highest Court in the whole Realm In qua omnis Aequitas relucere deberet absque qualibet Scrupulositate vel nota tanquam Sol in Ascensu Meridiei ubi Pauperes Divites pro Refrigerio Tranquilitatis Pacis Repulsione Injuriarum Refugium Infallibile quaerere possent ac etiam Errata Regni reformare de Statu Gubernatione Regis Regni cum Sapientiori Concilio tractare ut Inimici Regis Regni Intrinseci Hostes Extrinseci destruantur repellantur qualiterquoque Onera incumbentia Regi Regno levius ad Ediam Communitatis Supportari potuerunt i. e. In which Court all Equity ought to shine forth without the least Cloud or Shadow like the Sun in its Meridian Glory where Poor and Rich refreshed with Peace and Ease of their Oppressions may always find infallible and sure Refuge and Succour the Grievances of the Kingdom redressed and the State of the King and Government of the Realm debated with wiser Councels the Domestick and Foreign Enemies of the King and Kingdom destroy'd and repelled and to consider how the Charges and Burthens of both may be sustained with more Ease to the People Minshieu But these six Degrees were never allowed to be six Estates of Parliament in his Etymological Dictionary tit Parliament says In a Monument of Antiquity meaning the antient Modus Tenendi Parliament shewing the Manner of holding the Parliament in the Time of K. Edward the Son of K. Etheldred which as the Note saith was delivered by the discreeter Sort of the Realm to William the Conqueror and allowed by him tis said That the Parliament consisted of six Ranks or Degrees it begins thus Rex est Caput Principium et Finis Parliamenti ita non habet Parem in suo Gradu Et sic a Rege solo primus Gradus est Secundus Gradus est ex Archiepiscopis Episcopis Abbatibus Prioribus per Baroniam Tertius Gradus est de Procuratoribus Cleri Quartus Gradus est de Comitibus Baronibus et aliis Magnatibus Quintus Gradus est de Militibus Comitatuum Sextus Gradus est de Civibus et Burgensibus Et ita est Parliamentum ex sex Gradibus En Antient temps tout le Parliament sea Insimul Rolls 1. Report fol. 18. ante 54. et le Separation fuit perle desire del Commons Mes nient obstant ils font forsque un Mese jen aie view un Record 30 H. 1. de lour degrees et seats 39 E. 3. per Choke ch Inst It is generally believed Reform'd vol. 2. p. 49. That the whole Parliament sate together in one House before E. 3. Time and then the inferior Clergy were a Part of that Body without Question But when the Lords and Commons were divided the Clergy likewise sate in two Houses and granted Subsidies as well as the Temporalities My Lord Chief Justice Coke says 1 Inst Sect. 164. fol. 109. The Parliament is the highest and most honourable and absolute Court of Justice of England consisting of the King the Lords of Parliament and the Commons And again the Lords are here divided into two Sorts viz. Spiritual and Temporal And the Commons are divided into three Parts viz. Into Knights of Shires or Counties Citizens out of Cities and Burgesses out of Boroughs In the High Court of Parliament all the whole Body
Custom of Parliament and therefore void The Authority of the High Court of Parliament to be committed to a few as in 21 Rich. 2. c. 16. Ibid. is holden to be against the Dignity of a Parliament and that no such Commission ought to be granted Tho' it be apparent what transcendent Power and Authority the Parliament hath Id. 43 and tho' divers Parliaments have attempted to bar restrain suspend qualify or make void the Power of subsequent Parliaments yet could they never effect it for the latter Parliament hath ever Power to abrogate suspend qualify explain or make void the former in the Whole or in any Part thereof notwithstanding any Words of Restraint Prohibition or Penalty in the former For it is a Maxim in the Law of Parliament Quod Leges posteriores priores contrarias abrogant An Act of Parliament doth include every Man's Consent Hobart 256. as well to come and unborn Persons as those present The Sovereign Power of this High Court of Parliament is such Hakewel 86. that altho' the King's Majesty hath many great Priviledges and Prerogatives yet many Things are not effectual in Law to pass under the great Seal by the King's Charter without the consent of Parliament as was resolv'd by all the Judges in the Princes case The King by his Letters Patents may make a Denizen Id. 87. Bro. Denizen N o 9. 36. H. 8. but cannot Naturalize him to all purposes as an Act of Parliament may do If a Man be Attainted of Felony Hakewel 89. or Treason by Verdict Outlawry Confession c. his Blood is corrupted which is a perpetual and absolute Disability for him or his Posterity to claim any Hereditament in Fee-simple either as Heir to him or any Ancestor paramount him and he shall not be restored to his Blood without Parliament And yet the King may give to any attainted Person his Life by this Charter of Parliament The King cannot alter the Common Law Id. 90. or the general Customs of the Realm as Gavelkind Borough-English or the like without consent of Parliament Altho' a King have a Kingdom by Discent Ibid. yet seeing by the Law of that Kingdom he doth inherit that Kingdom he cannot change those Laws of himself without Consent of Parliament By the Laws of this Kingdom Ibid. the King cannot by his Proclamation alter the Law but the King may make Proclamtion that he shall incur the Indignation of his Majesty that withstands it But the Penalty of not obeying his Proclamation may not be upon Forfeiture of his Goods his Lands or his Life without Parliament Le Parliament d'Engleterre ne lia Ireland quoad Terras suas Brook 123. 91. Vide 20 H. 6.9 Crompton 22. b. quar ils ont Parliament la mes il poient eux lier quant al Choses transitory come eskipper de Lane ou Merchandize al intent de ceo carrier al auter Lieu ultra Mare The Parliament of England cannot bind Ireland Quere infra as to their Lands for they have a Parliament there but they may bind them as to Things transitory as the shipping of Wool or Merchandize to the intent to carry it to another Place beyond the Sea 4 Inst 350. Sometimes the King of England call'd his Nobles of Ireland to come to his Parliament of England c. And by special Words the Parliament of England may bind the Subjects of Ireland The Lords in their House have Power of Judicature Id. 23. and the Commons in their House have Power of Judicature and both Houses together have Power of Judicature This Power is best understood by reading the Judgments and Records of Parliament at large Ibid. and the Journals of the House of Lords and 6 H. 8. c. 16. Rast 429 430. Vaughan 285. the Book of the Clerk of the House of Commons which is sometimes also styled a Record If Inconveniencies necessarily follow out of the Law only the Parliament can cure them If a Marriage be declared by Act of Parliament to be against God's Law Id. 327. we must admit it to be so for by a Law that is by an Act of Parliament it is so declared In many Cases Multitudes are bound by Acts of Parliament Id. 14. which are not Parties to the Elections of Knights Citizens and Burgesses as all they that have no Free-hold or have Free-hold in ancient Demesne and all Women having Free-hold or no Free-hold and Men within the Age of One and twenty Years Hob. 256. c. and we may add Persons unborn It is declared by the Lords and Commons in full Parliament upon Demand made of them on the Behalf of the King That they could not assent to any Thing in Parliament that tended to the disherison of the King and his Crown whereunto they were sworn The Expounding of the Laws doth ordinarily belong to the Reverend Judges Hakewel 94. and in Case of greatest Difficulty or Importence to the High Court of Parliament Errors by the Law in the Common-Pleas are to be corrected in the King's-Bench 4 Inst 22. Vid. Stat. 1 Jac. 1 c. 1. and of the King's-Bench in the Parliament and not otherwise i. e. where the Proceedings are by original Writ Instit Leg. 171.172 For if they are by Bill they may be corrected in the Exchequer Chamber by St. 27 Eliz. c. 8. from whence a Writ of Error lyes to the Parliament Actions at Common Law are not determined in this High Court of Parliament Selden's Judicature 2. yet Complaints have ever been receiv'd in Parliaments as well of private Wrongs as publick Offences And according to the Quality of the Person and Nature of the Offence they have been retained or referred to the Common Law There be divers Precedents of the Trial of Bishops by their Peers in Parliament Id. 4.5 as well for Capital Offences as Misdemeanors whereof they have been accused in Parliament And so there have been of Commoners As the Arch-Bishop of Canterbury 15 Ed. 3. n. 6 7 8. ibid. postea 44. 39. ibid 17 E. 3.22 And the Bishop of Norwich 7 Ric. 2. for Misdemeanors So were the Bishops of York and Chichester tried for Treason by their Peers in Parliament upon the Appeal of the Lords Appellants 11 R. 2. And Anno 21 R. 2. The Commons Accused the Arch-Bishop of Canterbury of Treason by their Peers in Parliament upon the Appeal of the Lords Appellants 11 R. 2. And Anno 21 R. 2. The Commons accused the Arch-Bishop of Canterbury of Treason and the Temporal Lords judged him a Traitor and banished him But if a Bishop be accused out of Parliament he is to be tried by an ordinary Jury of Free-holders for his Honour is not inheritable as is the Temporal Peers out of Parliament yet in all other Matters save that only of their Trial they have Priviledge as no Day of Grace to be granted against them in any Suit A Knight to be returned upon the Pannel where a Bishop is Party and no Process in a Civil Action to be awarded
utterly disabled from being a Justice of Peace By Parliament Ib. p. 46. the Spanish Frauds were discovered and by an Act of Parliament the two Treaties i. e. touching the Spanish Match and for restoring the Palatinate both which had cost the King and his Subjects much Money and much Blood were Dissolved and Annihilated And we may remember says the same Author That that sage Councellor of State Sir William Cecil Lord Burley and Lord Treasurer of England was oft Times heard to say He knew not what a Parliament might not do which saying was approved by K. James 1. and is cited by him in one of his publick Speeches The Parliament says one is of an absolute and unlimited Power in all Things Temporal within this Nation Sir Robers Atkins's Argument p. 50. Bract. fo 34. Fleta p. 2. 17. Another says Parliamentum omnia potest Bracton and Fleta both affirm Rex habet Superiorem in Regno Scilicet Curiam suam i. e. Comites Barones doubtless the Lords and Commons qui apponuntur Regi ut si Rex sine Fraeno i. e. sine Lege fuerit Debent ei Fraenum apponere c. Nay some great Authors have asserted Quod Concilium hoc i. e. Parliamentum Facultatem habet Deponendi Regem Malum Substituendi Novum See Mat. Paris per Watts pag. 498. Knighton de Eventibus Angliae p. 2683. in the Decem. Scriptores and that this Power is claimed ex antiquo Statuto c. Knighton has a remarkable Passage concerning the Execution of that antient Statute in the Cases of E. II. and R. II. which at this Time I forbear to Transcribe or Translate Note It appears by Mat. Paris p. 99. c. That the Commons were then i. e. 15 H. II. summoned to the Parliament held at Clerkenwell and that they also were a Part of the Parliament in the Time of K. H. I. See before p. 34. 35. c. CHAP. IV. Of the House of Lords in general THE House of Peers Rushw eol vol. 3. part 1. p. 777. are the hereditary Counsellors of the King and Kingdom as the House of Commons are the representative Body of the whole Commons of the Kingdom There certainly cannot in the whole World be seen a more illustrious Court Nalson 566. than this high and honourable Assembly of Peers in Parliament nor any Thing of greater Benefit and Advantage to the Subjects of this Monarchy No Lord of Parliament can sit there Sir Simon d'Ewes's Jour 11. Col. 1. till he be full One and twenty Years unless by special Grace of the Prince and that very rarely unless they be near upon the Age of Twenty one Years at least A Bishop elect may sit in Parliament Ibid. ante 3 4 43 44. as a Lord thereof i. e. if called thereto by Writ Q. For he is not properly a Peer or even a Bishop till his Temporalties are granted to him If the King by his Writ calleth any Knight or Esquire to be a Lord of the Parliament 4 Inst 44. he cannot refuse to serve the King there in communi illo Consilio for the Good of his Country It lies in the Favour of the Prince Sir Simon d'Ewes Journal 2.4 Col. 2. to make Heirs of Earldoms Members of the upper House by summoning them thither by Writ but then they take not their Place there as the Sons of Earls but according to the Antiquity of their Fathers Baronies The Archbishop of Canterbury is the first Peer of the Realm Id. 140. Col. 1. The Earl-Marshal's Place in Parliament is betwixt the Lord Chamberlain Id. 535. Col. 2. and the Lord Steward See the Statute No Man ought to sit in that high Court of Parliament 4 Inst 45. but he that hath Right to sit there If a Lord depart from Parliament Id. 44. without License it is an Offence done out of the Parliament and is finable by the Law 4 June 1642 Rushw Col. Vol. 3. part 1.737 Post upon an Order of the House of Lords to those Lords that had left the Parliament and repaired to the King at York requiring their Appearance as Delinquents in the Answer they returned to it there are these Words We do conceive that it is the apparent usual and inherent Right belonging to the Peerage of England that in the highest Misdemeanors whatsoever no Peer is to answer to the first Charge but in his own Person and not upon the first Charge to come to the Bar. Any Lord of the Parliament 4 Inst 12. by License of the King upon just Cause to be absent may make a Proxy 43 Eliz. 1601 Towns Col. 135. Vide Sir Simon d'Ewes Journal 605. agreed by the Lords That the antient Course of the House is That the Excuses of such Lords as shou'd happen to be absent from the House upon reasonable Occasions ought to be done by some of the Peers and not by other Information Anno Domini 1626 Rushw Col. Vol. 1. p. 365. 2 Car. 1. resolved upon the Question by the whole House Nemine dissentiente That the Priviledge of this House is That no Lord of Parliament the Parliament sitting or within the usual Time of Priviledges of Parliament is to be imprisoned or restrained without Sentence or Decree of the House unless it be for Treason or Felony or refusing to give Surety of the Peace N. B. This was upon the King's having committed the Earl of Arundel to the Tower without expressing the Cause of his Commitment All the Priviledges which do belong to those of the Commons House of Parliament Hakewell 82. a fortiori do appertain to all the Lords of the upper House for their Persons are not only free from Arrests during the Parliament but during their Lives Nevertheless the original Cause is by Reason they have Place and Voice in Parliament And this is manifest by express Authorities grounded upon excellent Reasons in the Books of Law A Proxy is no more than the constituting of some one or more by an absent Lord Sir Simon d'Ewes Journals 5. Col. 2. to give his Voice in the upper House when any Difference of Opinion and Division of the House shall happen for otherwise if no such Division fall out it never cometh to be question'd or known to whom such Proxies are directed nor is there any the least Use of them save only to shew prove and continue the Right which the Lords of the upper House have both to be summon'd and to give their Voices in the same House either in their Persons or by their Proxies As many Proxies as any Peer hath Ibid. Col. 2. so many Voices he hath beside his own and if there be two or three Proxies constituted by one absent Lord as is frequent then always the first named in the same is to give the Voice if he be present and if absent then the second sic de reliquis It is plain by the antient Treatise Ibid. 6. Col. 1. Modus tenendi Parliamentum That if a Peer neither came to the Parliament nor sent
offered to the House till the Leave of the House be desired and the Substance of such Bill made known either by Motion or Petition It hath at some Times been ordered Hakewel 135. That every one that preferreth a private Bill should pay five Pounds to the Poor as in 43 Eliz. towards the End of the Parliament when they were troubled with much Business but it holdeth not in other Parliaments Scobel 41. Nevertheless the Speaker had Liberty to call for a private Bill to be read every Morning and usually the Morning is spent in the first Reading of Bills untill the House grow full If any publick Bill be tendered Ibid. the Person who tenders the Bill must first open the Matter of the Bill to the House and offer the Reasons for admitting thereof and thereupon the House will either admit or deny it 7 Martii 1606. Mr. Id. 46. Hadley being assigned of a Committee to confer with the Lords desired to be spared he being in Opinion against the Matter itself And it was conceived for a Rule That no Man was to be imployed in any Matter that had declared himself against it and the Question being put it was resolved Mr. Hadley was not to be employed Presidents reported by Mr. Pryn 28 Jan. 1666. about the Method of Proceeding upon the Impeachment of the Lord Mordant 28 May 1624. In the Lords Journal Council to be allowed Impeachment which is entered in haec verba and allows Council in all Cases 1 2 Car. 1. A great Dispute if the Earl of Bristol impeached for High Treason should be allowed Council The Lords then stood on the Order above recited The King objected to that Order that the Judges and his Council had not assented thereto yet the King consented to avoid being thought rigorous that the Earl of Bristol should be allowed Council so it were not drawn into Precedent Council was allowed to Sir George Bynion Council allowed to Garney Lord Mayor of London impeached for High Crimes and Misdemeanors 5 11 July 1642. and 1 2 August Sept. 30. 1645. An Impeachment of of the Earl of Strafford H. Poulton c. for striking Sir Arthur Haselrig Upon all which the House did acquiesce in the Lord Mordant's having Council As to his sitting within the Bar The Lords insisted on it on the Precedents of 18 Jac. the Bishop of Landass and 1645. the Lord Stamford Seignor Coke Litt. Rep. 330. Elect. 1 Car. 1. Viscount de Bucks Chivaler de Norsolk Comment que ill abstein de la maison uncore il avoit privilege versus la Dame Cleer The Privileges of Parliament consist in Three Things May 's Hist Parl. l. 3. p. 27 Sir Robert Atkin's Power of Parliaments 36. Rush Col. Vol. 1.663 First as they are a Council to advise Secondly a Court to judge Thirdly a Representative Body of the Realm to make repeal or alter Laws Upon some Questions propounded to the Judges Anno 1629. 5 Car. 1. all the Judges agreed That regularly a Parliament-Man cannot be compelled out of Parliament to answer Things done in Parliament in a parliamentary Course Their Rights and Privileges are the Birth-right and Inheritance not only of themselves Rush Col. Vol. 3. p. 1. 458. but of the whole Kingdom wherein every Subject is interested The Violating of the Privileges of Parliament Rush Col. Vol. 3. p. 1. 475. Rush Col. Vol. 1. p. 537. is the Overthrow of Parliament The Privileges of the House says Sir Edward Cook are the Heart-Strings of the Commonwealth and therefore if the King desires a Nonrecess I desire that this may be enter'd That it is done ex rogatu Regis The King viz. Charles II. Journ of House of Commons in his Letter to the King of Spain declares That the Murder of his Father was not the Act of the Parliament or Kingdom of England but of a little Company in the Kingdom 23 Aug. 1660. Expulsion from the House for Words Thursday in the Morning 27 May Diurnal Occurrences of Parliament from Nov. 3. 1640. to Nov. 3. 1641. p. 11â— 1641. Mr. Tayler a Barrister and Burgess for Old Windsor was brought upon his Knees in the House of Commons for speaking some Words in Disparagement of the whole House about the Earl of Strafford's Death saying They had committed Murder with the Sword of Justice and that he would not for a World have so much Blood lie on his Couscience as did on theirs for that Sentence Which Words being proved against him by the Mayor of Windsor to whom he spoke them and some others he was thereupon expelled the House and voted uncapable of ever being a Parliament Man committed to the Tower during Pleasure to be carried down to Windsor there to make Recantation for those Words and to return back to the House of Commons to receive further Sentence And it was ordered That a Writ should presently issue out for a new Election is his room The 2d of June he petitioned to be restored upon his Submission Id. p. 116. Id. the where Rush Col. part 3. vol. 1. fo 278 280. But his Petition would not be hearkened unto A Member sent to the Tower for discovering what was said in the House in a former Parliament Mr. Francis Nevill Rush Col. part 3. vol. 1. fo 169. of Yorkshire a Member of the House was February 4. 1640. 16 Car. 1. questioned for Breach of Privileges in the precedent Parliament which met 13 Apr. 1640. by discovering to the King and Council what Words some Members did let fall in their Debate in that House Whereupon Mr. Bellasis Knight for Yorkshire and Sir John Hotham were committed by the Council-Board And Mr. Nevill being brought to the Bar was by the House committed to the Tower of London and Sir William Savill touching the same Matter was ordered to be sent for in Custody CHAP. XXIII Privilege of Parliament THE Privilege of Tenants in Ancient Demense Sir R. Atkin's Argument 18. Vide Coke 9 Rep. in Pref. must be as ancient as their Tenure and Service for their Privilege comes by Reason of their Service and their Service is known by all to be before the Conquest in the Time of Edward the Confessor and in the Time of the Conqueror Every Man must take Notice of all the Members of the House returned of Record 4 Inst 23.24 at his Peril Otherwise it is of the Servant of any of the Members of the House Id. 24. A Member of Parliament shall have Privilege of Parliament Id. 42. Hakewel 62. not only for his Servants but for his Horses c. or other Goods distrainable The Privilege is due eundo Scobel 88. morando redeundo for the Persons of Members and their necessary Servants and in some Cases for their Goods and Estates also during the Time For their own Persons they have been privileged from Suits Ibid. Arrests Imprisonments Attendance on Trials Serving on Juries and the like yea from being summoned or called to attend upon any Suit in other Courts by Subpoena