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
of James the Third or of Scotland by the Name of James the Eighth or the Stile and Title of King of Great Britain hath not any Right or Title whatsoever to the Crown of this Realm or any other the Dominions thereto belonging And I do renounce refuse and abjure any Allegiance or Obedience to him And I do swear That I will bear Faith and true Allegiance to His Majesty King George the Second and Him will desend to the utmost of my Power against all Traiterous Conspiracies and Attempts whatsoever which shall be made against his Person Crown or Dignity And I will do my utmost Endeavour to disclose and make known to His Majesty and his Successors all Treasons and Traiterous Conspiracies which I shall know to be against Him or any of Them And I do faithfully Promise to the utmost of my Power to support maintain and defend the Succession of the Crown against him the said James and all other Persons whatsoever As the same Succession by an Act entitled An Act for the further Limitation of the Crown and better Securing the Rights and Liberties of the Subject is and stands limited to the Princess Sophia Electress and Dutchess Dowager of Hanover and the Heirs of Her Body being Protestants And all these Things I do plainly and sincerely acknowledge and swear according to these express Words by me spoken and according to the plain and common Sense and Understanding of the same Words without any Equivocation mental Evasion or secret Reservation whatsoever And I do make this Recognition Acknowledgement Abjuration Renunciation and Promise heartily willingly and truly and upon the true Faith of a Christian So Help me God CHAP. XI Who may be Elected to Parliament BY Stat. 5. 4 Inst 48. Sir Simon d'Ewes Jour 39 40. Eliz. c. 1. no Knight Citizen or Burgess can sit in Parliament before he hath taken the Oath of Allegiance and Supremacy but Note other Oaths are now appointed Vide ante Because the Words of the Writ for Election of Knights 4 Inst 10. c. were duos Milites gladiis cinctos c. it required an Act of Parliament that notable Esquires might be eligible Therefore the Statute says St. 23. H. 6. c. 15. the Knights of the Shires for the Parliament must be notable Knights or such Esquires or Gentlemen born of the same County as be able to be Knights Any Man may be chosen Knight St. 18. Ed. 4. c. 2. in Ireland Citizen or Burgess tho' he be not dwelling within the same Every Knight Citizen and Burgess shall be resiant and dwelling within the Counties Cities and Towns Every Knight Citizen or Burgess taking it upon him and not chosen in the manner prescribed by the Act of Parliament to forfeit an hundred Pounds St. 33 H. 8. c. 1. in Ireland Si home n'esteaut Inhabitant Meor so 551. n. 741 ne free de un Borough il poit Eslier s'il voit server a lour Election ou nemy pur le Borough If a Man be not an Inhabitant nor free of a Borough he may choose if he will serve at their Election or not for the Borough By the Statute none ought to be chosen a Burgess of a Town Rush Col. Vol. 1.689 in which he doth not inhabit but the usage of Parliament is contrary But if Information be brought upon the said Statute against such a Burgess I think that the Statute is a good Warrant for us to give Judgment against him by Whitlock The King cannot grant a Charter of Exemption to any Man to be freed from Election of Knight Citizen 4 Inst 49. or Burgess of the Parliament A Person Outlawed in a Personal Cause may be a Burgess Towns Col. 63.64 Vide John Smiths Ca. Si Simon d'Ewes Jour 48. Col. 2.480 Col. 1 Vide Sir Simon d'Ewes Jour 481. Col. 2. 482. Col. 1. See Bohun's Collection p. 278. 279. If exception be taken to such an Election and an Outlawry alledged to disinable him the Stat. 23 Hen. 6. c. 15. will disinable most of this House for they ought to be Burgesses resident Tho' the Common Law doth disinable the Party yet the Priviledge of the House being urged that prevaileth over the Law A Man Attainted Ibid. Outlawed or Excommunicated or not lawfully elected if he be returned out of all doubt is a lawful Burgess A Knight Banneret 4 Inst 46. being no Lord of Parliament is eligible to be Knight Citizen or Burgess of the House of Commons being under the Degree of a Baron which is the lowest Degree of the Lord's House An Earl's Son may be a Member of the House of Commons Sir Simon d'Ewes Jour 244. Col. 2. 4 Inst 47. One under the Age of one and twenty years is not eligible Neither can any Lord of Parliament sit there till he be full one and twenty Years An Alien cannot be elected of the Parliament Ibid. because he is not the King's Liege Subject and so it is albeit he be made Denizon by Letters Patents c. But if an Alien be naturaliz'd by Parliament then he is eligible to this or any other Place of Judicature No Alien denizated ought to sit here Petyt 's Miscell Parl. 175. Ibid. per Sir Edward Coke Note also the St. 4 An. c. 8. for settling the Succession c. excludes Aliens Resolved upon the Question that the Election of Mr. Walter Steward being no natural born Subject 4 Inst 47. is void and a Warrant to go for a new Writ None of the Judges of the King's Bench or Common Pleas or Barons of the Exchequer that have Judicial Places can be chosen Knight Citizen or Burgess of Parliament as it is now holden because they are Assistants in the Lord's House Yet read Parl. Roll. 31 H. 6. But any that have Judician Places in other Courts Ecclesiastical or Civil Ibid. being no Lords of Parliament are eligible None of the Clergy tho' he be of the lowest Order is eligible to be Knight Moor so 783. n. 1083. 4 Inst 47. Citizen or Burgess of Parliament because they are of another Body viz. of the Convocation The Clergy of the Convocation-House are no Part or Member of the Parliament Hakewel 59. Vide Fox's Book of Martyrs f. 1639. 4 Inst 48. A Man Attainted of Treason or Felony c. is not eligible For he ought to be magis idoneus discretus sufficiens Mayors and Bailiffs of Towns Corporate are eligible 4 Inst 48. Vide contra Brook Abridg. tit Parl. 7. At a Parliament holden 38. H. 8. it was admitted and accepted that if a Burgess of Parliament be made a Mayor of a Town or have Judicial Jurisdiction Crompt 16. or is Sick c. that these are Causes sufficient to choose others Any of the Profession of the Common Law and which is in Practice of the same 4 Inst 48. is eligible By special Order of the House of Commons Ibid. the Attorney General is not eligible to be a Member of the House of Commons Vide infra At the
Barons only i. e. By Reason of the Temporal Baronies annexed to their Bishopricks and not as they are Spiritual Persons And they further urge in Confirmation of their Opinion 1. That no Bishop notwithstanding his Election Consecration Confirmation c. can be a Lord of or sit in Parliament till the King has granted to him the Temporalities of the Bishoprick 2. N. B. Tho this Stat. was repealed by Q. Mary yet that Repeal was repealed by Q. Elizabeth c. As the Parliamt at Bury 24 E. 1. 1 Eliz. all the Acts about Religion passed Dissentientibus Episcopis See Journal Dom. Procer 11 H. 7.27 Bro. Par. 107. Kelway 184. 3 The Commons See hereafter See Sadler's Rights p. 79. to 93. That by Virtue of the Stat. 1 E. 6. c. 2. still in Force The King may constitute Bishops by his Letters Patent only without any Election or Consecration and 3. That Parliaments have been and may be held Excluso Clero exclusive of the Bishops and Clergy and that some of our most beneficial Statutes have been enacted whereto the whole Body of the Clergy dissented all which they say prove the Bishops to be no essential Part or any of the three Estates of Parliament And in Trinity Term 7 H. 8. tis agreed by all the Judges of England That the King may well hold his Parliament by himself and his Lords Temporal and Commons without any Bishops or Spiritual Lords at all The third Estate of which we shall herein principally treat is on all Hands confess'd to consist of the Knights Citizens and Burgesses with the Barons of the Cinque-Ports all which being at this Day elected by the free Votes of the Freemen of Great Britain are properly esteem'd the Representative Body of the People and constitute that Part of the Parliament usually called the House of Commons N. B. The antient Modus Tenendi Parl. reckons up six Degrees or Orders of Parliament but that Division cannot be denominated six Estates The Numbers of the Commons Numb of Commons formerly See Mr. Willis's Preface to his 1 Vol. of Net Parl. Prynn of Parliamentary Writs I find to have been formerly variant according as the Sheriffs of Counties from what Motive is uncertain were pleased to direct their Precepts to the several Cities or Burros within their respective Counties or as the same Sheriffs made their Returns thereupon But indeed another Cause of this Variation was That it was usual for the Prince on his Accession to the Throne to grant Charters to antient Demesne Vills and other popular Towns thereby erecting 'em into free Burros and this consequently gave 'em a Right to be represented in Parliament And by this Artifice among others the Crown advanced its Interests in the House of Commons For it must be confess'd That by the antient Constitution there were no Representatives of the Commons as Commons in Parliament besides the Knights for the Shires the Barons for the Cinque Ports Crompt of Courts f. 2.3 c. Stat. 23. H. 6. c. 11. the Citizens for the Cities and the Burgesses for the ancient Burros only and that the Elections for all those were to be made by such Persons only as were possess'd of Lands or Tenements held by them as Freeholds or free Burgage Tenures which consequently excluded all Villeins and Copyholders Stat. 12. R. 2. c. 12. Crom. 2.3.4.5 Bro. Ant. Dem. 43â— as also Tenants in antient Demesne which were but the King's Villeins and the Tenants and Dependants of other Lords Parl. 96. Reg. 261. Nat. Bre. 14. from being either the Electors or elected of the House of Commons Indeed the Practice of increasing the Number of the Representatives of the Commons See Bohun's Col. per Tot. began very early viz. Temp. Johan if not before for I find it a Practice of that Prince to grant usually in Consideration of Money c. Charters to Antient demesne Towns as generally all Sea-Port Towns were thereby erecting 'em into free Burroughs The Representative of London and West p. 14. 10 p. 21. Spelm. in voce Major and hence it was as I conceive That Bridport Dorchester Harwich Helstone Kingston upon Hull and divers other antient demesne Towns came to be erected into free Burros which originally had no Right of being represented in Parliament But whatever Methods were then taken to encrease the Number of the House of Commons I find their Number to be much the same from the End of H. the 6th's Reign Fortescue p. 40. to the Beginning of that of H. the 8th viz. about 300. That H. 8. MS. Penes Authorem added to their Number 38. King Ed. 6. added to their Number 44. Queen Mary added to their Number 25. Queen Elizabeth added to their Number 62. King James the 1st added to their Number 27. And King Charles the 1st about 10. or 12. so that at the Time of the Restoration of King Charles 2. I find their Numbers to have been about 500. But the Commons about that Time restrained this mischievous Practice for the Future so that they declared the Elections made by Virtue of that Prince's Charters void and as Chester had been enabled to send two Members for the County and two for the City by Virtue of a Sta. 34.35 St. 34.35 H. 8. c. 13 St. 25. C. 2. c. 9. H. 8. so an Act past in the 25 Car. 2. enabling Durham to send four Members in like Manner and thus the Number of the House of Commons stood at 513 till the Union of the Kingdoms of England and Scotland when by Virtue of the Union Act St. 5. An. c. 8. forty-five Scottish Members were added which made the whole Number of that House to be 558 as it now stands Mr. Prynn and Others observe Denominations of Parliam Prynn's Rights of the Com. c. p. 99. 99. Spelm. Glossary in verb. Parlam Debata That our Ancestors had many Expressions and Phrases which signify'd a Parliamentary Assembly as Magnates Regni Omnes Regni Nobiles Proceres et Fideles Regni Universitas Regni Communitas Regni Discretio Totius Regni Generale Concilium Regni and many others varying the Stile in successive Ages till at length it came to be fix'd in the Word Parliament See divers Records and Precedents touching this Matter in the Appendix to Mr. Petyt's Miscellanea Parliamentaria Mr. Prynn also says Prynn's Truth triumphing over Falshood c. f. 69. Petyt's Antient Rights c. p. 68. That by many antient Precedents before the Conquest it is apparent that all our pristine Synods and Councils were nought else but Parliaments and that our Kings Nobles Senators Aldermen Wisemen Knights and Commons were usually present and voted in them as Members and Judges And Mr. Lambard Sir Robert Atkyns's Argument p. 18. see hereafter in his Archaeion maintains That Parliaments were used in the Saxon Times as in the Time of King Ina Ann. 712 and other Saxon Princes and that they then consisted of King Lords and Commons And that the
a Proxy upon his Writ of Summons he forfeited 100 l. if an Earl 100 Marks if a Baron 100 s. c. It seldom happeneth Towns Col. 4.39 40 42. That any Bishop doth nominate fewer than three or two Proctors nor any Temporal Lord more than one John Archbishop of Canterbury Id. 34. had this Parliament five Proxies 1 Eliz. a Lord of Parliament by License obtained of the Queen to be absent 4 Inst 12 13 made a Proxy to three Lords of Parliament one of which gave Consent to a Bill the other two said Not Content And it was by Order of the Lords debated among the Judges and Civilians Attendants and conceiv'd by them That this was no Voice and the Opinion was affirmed by all the Lords That it was no Voice 2 Car. 1. 1626. the House of Peers made an Order Rush Col. 269. That after this Session no Lord of this House shall be capable of receiving above two Proxies or more to be numbred in any Cause voted In the Lords House Arc Parl. 12. Smith's Common-wealth 87. the Lords give their Voices from the puisne Lord seriatim by the Word Content or Not Content 4 Inst 34. First for himself and then severally for so many as he hath Letters and Proxies A Bill had three Readings in one Forenoon Towns Col. 11. in the House of Lords Towns Col. 9. Where a Committee of Lords is selected out to meet with another Committee of the House of Commons neither the Judges being but Assistants nor the Queen's Council being but Attendants of and upon the House were ever nominated a Joynt-Committees with the Lords But when the Lords among themselves do appoint a Committee to consider of some ordinary Bill especially if it concern Matter of Law it hath been antiently used and may still without Prejudice to the Honour of the House that the King's learned Council but especially the Judges may be nominated as Committees alone or as Joynt-Committees with the Lords January 19. 1597. 39 Eliz. it was resolved Towns Col. 94. Sir Simon d'Ewes Jour That the Order and Usage of this House was and is that when any Bills or Messages are brought from the lower House to be preferr'd to the upper House the Lord Keeper and the rest of the Lords are to rise from their Places and to go down to the Bar there to meet such as come from the lower House and from them to receive in that Place their Messages or Bills Contrariwise when any Answer is to be delivered by the Lord Keeper c. In passing of Bills Arc. Parl. 5. if the Not Contents be most then the Bill is dash't i. e. the Law is annihilated and goeth no further If the Contents be the most then the Clerk writeth underneath Soit baile aux Commons i. e. Let it be delivered or sent to the Commons 3 Car. 1. 1626. resolved upon the Question Rush Col. 365. That the Priviledge of this House is that no Lord of Parliament the Parliament sitting or within the usual Time of Priviledges of Parliament is to be imprison'd or restrain'd without Sentence or Decree of the House unless it be for Treason or Felony or refusing to give Surety of the Peace Giving the Lye to a Peer Nalson 380. Hakewel 84. Vide Kel wey 184. Vid. Lord Hollis's Letter Vid. Lord Hollis's Remains Vid. contra Hunt's Argument for the Bishops Right c. Vid. Grand Question concerning Bishops Right per totum is a Breach of Priviledge Ever since the Conquest the Archbishops and Bishops have no Title to have Voice and Place in Parliament but only in respect of their Temporal Baronies where they are present quousque perveniatur ad Diminutionem Vitae c. When a Question is had of the Attainder of any Peer Hakewel 84. Vid. contra Hart ut supra per tot Vid. Grand Question concerning Bishops Right c per tetum or other in Parliament the Archbishops and Bishops depart the higher House and do make their Proxies for by the Decrees of the Church they may not be Judges of Life and Death 11 Rich. 2. Divers Lords and others being appealed of Treason and other Misdemeanors the Prelates absented themselves during the Trial Selden of Judicature p. 150. Vid. there the Protestation of the Bishops Ibid. 151. having first made Protestation saving their Right to be present in Parliament The Protestation I think intends That they could not be present by Reason of the Common Law and by Reason of an Ordinance made at the Council at Westminster in 21 Hen. 2. by which all Clergymen were forbidden agitare Judicium Sanguinis upon Pain to be deprived both of Dignities and Orders For surely as I think they might otherwise have been present both by the Common Law and by the Law of God Sed Quere All the Lords Spiritual and Temporal Selden's Judicature c. 39. 11 Rich. 2. claimed as their Liberty and Franchise that the great Matters moved in this Parliament and to be moved in other Parliaments in Time to come touching the Peers of the Land ought to be admeasured adjudged and discussed by the Course of the Parliament and not by the Civil Law nor by the Law of the Land used in the more base Courts of the Realm which the King granted in full Parliament The Proceeding against a Peer in Parliament is not necessary Id. 53. Q. It appears that the Lords cannot of themselves judge a Common Person for an Offence Id. 61. for he is no Peer according to that of 4 E. 3. Numb 26. 1 Rich. 2. Id. 123. The Lord Beauchamp was sworn and examined and the Duke of Lancaster being one of the Committee was diligently examin'd before the rest of the said Committee but not sworn ad testificandum Vid. rost Earls and Dukes are not sworn on Trials c. in Parliament In Judgments on Delinquents in Parliament Id. 132. the Commons might accusare petere Judicium and the King assentire but the Lords only did judicare The King's Assent ought to be to capital Judgments Id. 141. Vid. Id. 144 14â— 148 154 158. and the Lords Temporal to be only Judges therein and not the Lords Spiritual but in Misdemeanors the Lords Spiritual and Temporal are equal Judges and the King's Assent is not necessary Id. 136. yet it seemeth that the King's Assent is necessarily required in capital Causes and Judgments If a Peer be committed to Prison the Gentleman Usher hath the Charge of him thither and the Serjeant attending on the Great Seal How Lords of Parliament shall be placed in the Parliament Vide Stat. 31 Hen. 8. c. 10. Vid. 4 Inst 362. Rot. Parl. 3 H. 6.10 Arcana Parl. 70. and other Assemblies and Conferences of Council A Peer of the Realm shall be tried in an Appeal by Knights c. and not by his Peers because it is at the Suit of the Party Brook 142 153. Otherwise it is in an Indictment of Treason or Felony for that it is at the Suit of the King The
Parliament began in October 28. Mor. rep 551. Sir Simon d'Ewes Jour 441 442. Moor 551. Eliz. and continued 'till the 29th Tho. Egerton Solicitor General was by Writ commanded to attend in Parliament upon the Lords in the upper House and after he had attended there three Days he was chosen a Burgess for Reading in Com. Berks and upon the Return of him the Commons went to the House of Lords and demanded that he might be dismissed from further attendance there and come into their House But upon Consultation and Defence made by himself the Lords retain'd him and the main Reason was because they were first posessed of him And in 5. Mor. ut Sup. Simon d'Ewes Jour 121 Col. 1 2. Eliz. Ouslow being a Member of the lower House upon a Prorogation of Parliament was made Solicitor General and when the Parliament met again he was commanded by Writ to attend the Lords House tho' chosen Speaker of the House of Commons but the Commons demanded him and it was granted because he was a Member of the lower House first so that this was the difference between his Journ Dom. Co. 21. Jac. 1.10 Martij Vid. Petyts Miscell Parl. 174. and the case above Sir Dudley Diggs said that in that Parliament when Bacon Attorney was in Question whither he ought to sit in the House of Commons or no twas over-ruled he ought not but yet in favour of him he was suffered to sit there and an Express order was made that never any other Attorney after should So careful were our Ancestors not to admit any to be a Representative of the People who was a Dependant on or could be influenc'd by the Court c. 18 Eliz. 1585. Concluded by the House Sir Simon d'Ewes Jour 249. Col. 1. that Mr. Serjeant Jeffreys being one of the Knights returned for Sussex may have Voice or give his Attendance in this House as a Member of the same notwithstanding his Attendance in the Upper House as one of the Queen's Serjeants for his Counsel there where he hath no Voice indeed nor is any Member of the same 23 Eliz. 1580. Popham Solicitor General Id. 281. Col. 1. upon demand made by the House was restored to them by the Lords beause he was a Member of the House of Commons and they possessed of him before he was Solicitor or had any Place of Attendance in the Upper House No Sheriff shall be chosen for a Knight of Parliament nor for a Burgess why Book of Entr. 41.1 Crompton's Jur. 3. 4 Inst 48. because nominated by the Crown 1. Car. 1. The Sheriff of the County of Buckingham was chosen Knight for the County of Norfolk and return'd into the Chancery and had the Priviledge of Parliament allow'd to him by the Judgment of the whole House of Commons Vide de hoc Pro Con Sir Simon d'Ewes Journal 38 436 624 625. 1 Jac. 1. Scobel 96. Sess 2. Sir John Peyton Kt. returned the last Session and since chosen Sheriff Resolv'd upon the Question that he shall attend his Service here The Personal Residence and Attendance of Sheriffs is required within their Bailywicks Rush Coll. vol 1.684 685. during the time of their Sheriffwick Mr. Walter Long being Sheriff of Wilts was after chosen Citizen for Bath and for that Offence was committed and fined viz. because he sate and served in Parliament Sir Andrew Noel Touns Col. 185. Vid. de hoc Sir Simon d'Ewes Jour 38. Col. 1 2. 624. Col. 2. Kt. Sheriff of Rutland returned himself Knight and adjudged a void Return and a Warrant ordered for a new Election For said Serjeant Harris we know in Law that a Man cannot make an Indenture to himself no more can he here between himself and the County for there are required two Persons Yet Sir Edward Hobby said That the House might well receive him and vouched a Precedent when the Bailiffs of Southwark returned themselves Burgesses and were received See also Bohun's Collection 81.143.153.188.243.253.254 The Fee for the Knight of any County is four Shillings per Diem England and every Citizen or Burgess is to have two Shillings per Diem 4 Inst 46. Where one Person is chosen and returned to serve in several Places Scobel 18. Vide Sir S. d'Ewe's Jour passim it is in his Election to make his Choice in the House in his own Person for what Place he will serve and wave the other Election so as a Writ may issue for a new Election that the Number may be full No Tallage or Aid shall be taken or levied by Us or our Heirs St. So. E. I. c. 1. Of the Elected vide ante 14.21 in our Realm without the Goodwill and Assent of Archbishops Bishops Earls Barons Knights Burgesses and other Freemen of the Land The King wills and commands Stat. 5. R. 2. c. 4. Persons and Commonalty summoned to attend c. as of old and it is assented in Parliament by the Prelates Lords and Commons That all Persons and Commonalties which shall have the Summons of Parliament shall come to the Parliaments in the Manner as they are bound to do and have been accustomed within the Realm of England of old Times And if any Person of the same Realm Knights Citizens and Burgesses absenting to be a merced and punish'd as in Old Times which shall have the said Summons be Knight of the Shire Citizen of City Burgess of Borough or other Person Commonalty do absent himself and come not at the said Summons except he may reasonably England and honestly excuse him to our Lord the King he shall be amerced and otherwise punished as in old Times hath been used c. That Knights of Shires which shall be chosen in every Shire St. 1. H. 5. c. 1. Knights of Shires to be elected of such only who reside within the Countries at the Dat. of the Writ be not chosen unless they be resident within the same Shire the Day of the Date of the Writ of Summons And that the Citizens and Burgesses of the Cities and Boroughs be chosen Men Citizens and Burgesses to reside in and be free of the Cities and Boroughs Citizens and Burgesses resient dwelling and free in the same Cities and Boroughs and no other in any wise That such as have the greatest Number of them that may expend 40 s. by the Year Knights of Shires shall be such as have the majority of those that can expend 40 sa Year or more and be resident and above shall be returned Knight of the Shire c. and that they which shall be chosen shall be dwelling and resient within the same Counties Ordained St. 23. H. 6. c. 15. Citizens and Burgesses only to be elected by Citizens and Burgesses and the Sheriff to direct his Precept accordingly c. That every Sheriff after the Delivery of any Writ of Election to him shall make and deliver without Fraud a sufficient Precept under his Seal to every Mayor and Bailiff or to Bailiffs or Bailiff where no Mayor
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
pro arduis Negotijs Regni 2. That tho' the Magnates Regni are only mentioned to be Summoned yet the Commons of England were therein included and indeed it is very Evident that the Words Magnates Regni or Nobiles Regni Selen Tie Hon. 603. 604. in the Language of those Times included both Lords and Commons when applyed to a National Assembly For as Mr. Selden observes the Word Nobilis in the Saxon Times denoted every Gentleman i. e. under Thanes or Knights c. So after the Conquest the Word Baronagium Camb. fo 137. Edit Lond. 1600. included the Commons as well as Peers and Mr. Cambden with others do consess Quod Sub Nomine Baronagij omnes Regni ordines continebantur Thus Rex Magnates Proceres are said to make the Stat. of Mortmain which was apparently made by the K. Lords and Commons 17 Johanis and the Magna Charta of K. John of which that of K. H. 1. is clearly prov'd to be the Foundation appears to have been made per Regem Barones Liberos homines totius Regni Mat. Par. Edit per Watts p. 38.45.51.166 alibi all which are by the Historians of those Times called Magnates Angliae See farther of the Import of the Word Magnates in Mat. Paris 3. M. Paris 10.6 40. That the Norman Nobility tho' Summoned resus'd to appear at this Parliament they being almost entirely devoted to Robert the King's Elder Brother and hence it is that we find the King's Speech is here Directed to English Men only and that too in opposition to the Normans in general on whom the King in the Conclusion very warmly Reflects in order to ingratiate himself the more with the English Commons of whom this Parliament seems to have been almost wholly composed The cause of the Normans defection seems to have been Vide ibid 42. for that King Henry having in the 2d year of his Reign Married Maude the Daughter of Margaret Q. of Scotland who was Edgar Aetheling's Sister and the direct lineal Heir of the English Blood Royal Mat. Par. 40. was so enamoured with her tanto ardentius exarsit in ipsius amorem that he very much favoured the English for her Sake whereupon the Normans raised a general Rebellion against him in favour of Robert and tho by the Intervention of Friends the difference between the two Brothers was Skinn'd over for the present yet we find the K. could never afterwards be heartily reconciled to the Norman Nobility tho' of his own Blood diverse of whom as Robert de Beleasmo Ib. 40 41. William Earl of Moreton and others he soon after Banished the Kingdom And it is very remarkable That in the Event of the several Contests about Robert's Right the English Commons became the Victors over the Norman Nobility first on behalf of W. Rufus in the Beginning of his Reign and now on the Behalf of K. H. 1. Vide ib. sub Anno 1089. And the Example of their former Valour might induce this King to gratify and caress them with those high Encomiums and Promises in his Speech Which Promises tho as the Historian asserts he afterwards impudenter violavit yet as to the granting a Charter for restoring the Confessor's Laws Ib. p. 42. doubtless the Parliament took him at his Word and this Charter I take to have been that very Charter which the same Historian observes to have been produced to King John Ib. p. 167. at the Rencounter of Runny-Mead and not that which is mentioned to have been granted by this King at his Coronation in which we find this ensnaring Stricture Mat. Par. 38.167 viz. Lagam Regis Edvardi vobis reddo cum illis emendationibus quibus Pater meus eam emendavit His Father having under Pretext of those Emendations utterly deprived the English of the Free Election of their Magistrates whereas tis evident from History That for some Years after this new Charter granted in this English Parliament the People were generally restored to the Right of electing their own Magistrates and Officers Civil Military and Ecclesiastical and this I take to be the grand Foundation of the Magna Charta of English Liberties i. e. as it gave Relaxation from Norman Tyranny and Slavery And this may teach us Dier 60 See Mirror c. 1. Sect 3. Bra. Flet. Lambards Archaion 5â— 239.245 Sir R. Atkyns p. 20.15 c. Vide Post c. 6. 7. That the Rights and Liberties of the Commons of England are neither so illegally begotten as by Rebellion nor of such tender Years as some imagine But if any Man is not convinced from what I have before produced touching the Origin of English Parliaments and the Antiquity of the House of Commons let him peruse the Authors cited in the Margin especially the Treatise writ by that learned Judge Sir Robert Atkyns on this very Subject Nor was this the first English Parliament held under this King Mat. Par. 37.39 2 Inst 15. Mat. Paris has given us a brief Account which other Authors confirm and enlarge That one Ranulph Saxon Chron. sub Anno 1099. p. 208.210 Flor. Wig. c. Mat. Par. 39. Bishop of Durham whom Mat. c. adorn with the sublime Titles of Vir pessimus corruptissimus Homo perversus ad omne scelus paratus Vir subacto ingenio prosunda nequitia c. was imprisoned c. by a Common-Council or Parliament of Englishmen The whole Passage runs thus Eo tempore Rex tenuit in Custodia Ranulphum Dunelmensem Episcopum hominem perversum ad omne scelus paratum Quem Frater Regis i. e. Rex Willielmus Episcopum fecerat Dunelm Regni Anglorum subversorem N. B. The Office of a Court Bishop Qui cum Regi jam dicto nimium esset familiaris constituerat eum Rex Procuratorem suum in Regno ut evelleret destrueret raperet et disperderet et omnia omnium Bona ad Fisci commodum comportaret Sed mortuo eodim Rege iniquo Henrico coronato de Communi Consilio Gentis Anglorum posuit Rex eum in vinculis c. Nor was the Concurrence of the Commons in Parliament requisite only to the Imprisonment or Exauctoration of Bishops Rights of the Kingdom p. 118.133.140 c. the same Assent seems as necessary and that too in a superior Degree as to their Election or Confirmation divers Instances of this appear in the Historians of those Times I shall select some to prove it then the Custom of England Scotland Wales Ireland France c. Anno 1113 Sax. Chr. p. 306. Ralph Bishop of Rochester was elected Archbishop of Canterbury by the King Annuente Plebe Clero Eadmer Hoveden this was done in Communi Consilio apud Windsore And I find about the same Time That another Ralph who had been ordained a Bishop in Scotland was rejected by all because not elected with the Consent of the People c. And notwithstanding his Consecration was forced to wander about and officiate as a Coadjutor to other Bishops About the Year 1120 Malmsb. one
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
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
Duke of Somerset in the Time of Ed. 6. was tried for Felony and Treason by his Peers upon an Indictment Id. 71. for it is the Suit of the King When a Lord of Parliament is tried by his Peers 1 Hen. 4.1 Id. 72. they shall not be Sworn to say their Verdict but they shall give their Verdict upon their Honour and are not charged but upon their Honours And 6 Maij 1628. Sir Wm. Jones's Rep. 154 155. It was ordered on the Question Nem. Dissen That the Nobility of this Kingdom and Lords of the upper House of Parliament are of antient Right to Answer in all Courts as Defendants upon Protestation of Honour only and not upon the common Oath An order of the House of Lords was in 1640. Cursus Cancel 112. That the Nobility of this Kingdom and Lords of the upper House of Parliament and the Widows and Dowagers of the Temporal Lords shall Answer in Chancery c. upon Protestation of Honour only but altho their Honour may bind their Conscience in Equity yet Evidence upon their Honour ought not to be admitted in any Court of Law And we must here Note That even Lords of Parliament or Peers of the Realm in giving Evidence to a Jury or in their Depositions in Chancery c. are to be Examined on Oath A Lord of Parliament shall have Knights upon his Trial in every Action 27 Hen. 8. f. 27. A Lord of Parliament may be Outlawed for Murder 27 Hen. 8. f. 17. If a Lord of Parliament makes a Rescous 27 H. 8.27 a Capias shall be taken out against him if the Sheriff return the Rescous otherwise it is in Case of Debt A Capias ad Satisfaciendum does not lyc against a Lord of Parliament 11 H. 4.15 27 Hen. 8.27 for the Law presumes that he has Assets An Attachment is not grantable by the Common Law Dyer 316. Statue Law Custom or Precedent against a Lord of Parliament and the Lord Cromwel by Order in the Parliament-Chamber was discharged of such Process In a Praemunire against a Lord of Parliament Arc. Parl. he ought to appear in his proper Person and not by Attorney unless he has a special Writ of Chancery De attornato faciendo CHAP. V. The Power of the House of Lords A Peer of the Realm being Indicted of Treason or Felony 4 Inst 23. or Misprision of Treason may be Arraigned thereof in Parliament a Lord Steward being appointed and then the Lords Spiritual shall make a Procurator for them and the Lords as Peers of the Realm during the Parliament are Judges whether the Offence be Treason c. that is supposed to be committed by any Peer of the Realm and not the Justices Vide a Letter sent by nine Lords Rush Col. 3. Stat. vol. 1. f. 737. Ant. 42. to the Parliament June 4 1642 who had gone from their House and repaired to the King at York wherein they say We do conceive that it is the apparent usual and inherent Right belonging to the Peerage of England that in the highest Misdemeanour whatsoever no Peer is to Answer to the first Charge but in his Place in his own Person and not upon the first Charge to come to the Barr. In 1553. primo Mariae Burn. His Ref. vol. 2. p. 253. The Bill of Tonnage and Poundage was sent up to the Lords who sent it down to the Commons to be reformed in two Provisoes that were not according to former Precedents How far this was contrary to the Rights of the Commons who now say that the Lords cannot alter a Bill of Money I am not able to determine Die Mercurij 25 Novembris 1692. It is Resolved upon the Question by the Lords Spiritual and Temporal that for the future when there shall be a Devision in the House upon any Question the Contents shall goe below the Barr and the Not Contents stay within the Barr And it is Ordered that this Resolution be added to the Roll of standing Orders of this House Die Lune 7. Decembris 1691. It is Ordered by the Lords Spiritual and Temporal in Parliament Assembled that for the future upon giving Judgment in any Cases of Appeals or Writs of Error in this House the Question shall be put for Reversing and not for Affirming And that this be added to the Roll of standing Orders 30. Jan. 1640. Rush Col. 3. part vol. 1 p. 165. Upon a Debate in the Lord's House touching the Power of conveying away of Honour it was Nemine contradicente Resolved upon the Question that no Person that hath any Honour in him as a Peer of this Realm may alien and transfer the same to any other Person See Sir B. Shower's Cases in Parliament 1.2 c. See many notable Judgments by the Lords at the Prosecution of the Commons Rush Col. passim Nalson and in later Times Error serra sue in Parliament Vid. Crom. 18. Error Vid. infra Parliament poet prendre Recognizance Brook 137. Error Error shall be sued in Parliament and the Parliament may take a Recognizance If a Judgment be given in the King's Bench 4. Inst 21. either upon a Writ of Error or otherwise the Party grieved may upon a Petition of Right made to the King in English or in French and his Answer thereto Fiat Jusstitia let Justice be done have a Writ of Error directed to the Chief Justice of the King's Bench for removing of the Record in praesens Parliamentum c. And hence it may be presum'd that Writs of Error in Parliament were originally Returnable before the Commons as well as the Lords See Yelverton's Rights of the Commons and Hales of Parliaments p. 18. to 23. When one sueth in Parliament to Reverse a Judgment in the King's Bench he sheweth in his Bill which he exhibiteth to the Parliament some Error or Errors whereupon he prayeth a Scire Facias Id. 22. The Proceeding upon the Writ of Error is only before the Lords in the Upper House Secundum Legem Consuetudinem Parliamenti The Case between Smith and Busby in a Writ or Error Resolved 2 Nalson 716. 'twas decidable in no other Court but in Parliament If any Question be moved in Parliament for Priviledge 4 Inst 363 or Precedency of any Lord of Parliament it is to be decided by the Lords of Parliament in the House of Lords as all Priviledges and other Matters concerning the Lords House of Parliament are November 1641. 2 Nalson 625. Resolved by the House Nemine contradicente that it belongs to the House of Peers by the antient Laws and Constitutions of this Kingdom to interpret Acts of Parliament in Time of Parliament in any Cause that shall be brought before them Julij 12. 1641. 2. Nalson 381. An order of the Lords for Relief of a Feme-Covert and her Children against a Husband refusing to Cohabit The Sentence pronounced by the Lords upon Sir Giles Mompesson Rushw Col. 27.28 and Sir Fracis Michel for Projectors Upon Complaints and Accusations of the Commons Selden's Judicature
or if a Quaker Declare That the Lands and Estates of for which I claim to give my Vote in this Election are not conveyed to me in Trust or for the behoof of any Person whatsoever And I do Swear declare before God that neither I nor any Person to my Knowledge in my Name or by my allowance hath given or intends to give any Promise Obligation Bond Back-Bond or other Security for re-disposing or re-conveying the said Lands and Estate any manner of way whatsoever and this is the Truth as I shall Answer to God The Freeholders Oath appointed to be taken By St. 2. Geo. 2. c. 24. Sect. 1. by Statute 2 Geo. 2. if Demanded by either of the Candidates or any two of the Electors I. A. B. Doe Swear or being one called a Quaker doe solemnly affirm That I have not received or had by my self or any Person whatsoever in Trust for me or for my Use and or Benefit directly or indirectly any Sum or Sums of Money Office Place or Imployment Gift or Reward or any Promise or Security for any Money Office Imployment or Gift in order to give my Vote at the Election and that I have not before been Polled at this Election But note Ibid. Sect. 2. This Oath seems intended for other Voters besides Freeholders for by Sect. 2. of the same Stat. 'Tis Ennacted That such Votes c. Ante. p. 132. Citizens and Burgesses within Cities and Burroughs St. 23. H. 6. c. 15. to Elect Citizens and Burgesses of the same and the Sheriff is to direct his Precept accordingly That the Nomination St. 2. W. M. c. 7. See 1 W. M. Sess 2. c. 2. Supra or Recommendation to the Electors of one of the Barons of each Cinque Port the two antient Towns and their Members claimed by the Lord Warden is contrary to Law and Void By the claim of Right made on the Abdication of King James the II. Claim of Right All Elections of Members of Parliament ought to be Free and it was Enacted accordingly See the Stat. Et vide post No Collector St. 5. W. M. c. 20. Officers of the Excise Supervisor Gauger or other Officer or Person whatsoever Concerned or Imployed in the Charging Collecting Levying or Manageing the Duties of Excise or any Branch or Part thereof shall by Word Message or Writeing or in any other manner persuade any Elector to give or disuade any Elector from giving his Vote for the Choice of any Person to be a Knight of the Shire Citizen Burgess or Baron of any County City Burrough or Cinque-Port and every Officer or other Person offending herein Penalty to forfeit 100 l. one Moiety to the Informer and the other to the Poor where the Offence is committed to be recoverd by him that Sues for it by Action of Debt Bill Plaint or Information in any Court of Record at Westminster And no Essoign Protection Privilege or Wager of Law or more than one Imparlance Incapacity and the Party Convicted to be for ever Incapacitated to bear any Office or Place of Trust under the Crown No Commissioner Collecter Comptroller St. 12.13 W. 3. c. 10 Officers of the Customs Searcher or other Officer or Person concerned or imployed in Discharging chargeing Collecting Levying or Managing the Customs or any Branch or thereof shall by Word Message or Writing c as above for the Excise Officers with the like Penalty Incapacity c. In many Cases Multitudes are bound by Acts of Parliament 4 Inst p. 5. which are not Parties to the Elections of Knights Citizens and Burgesses as all they that have no Freehold or who have Freehold in ancient Demesne and all Women having Freeholds or no Freehold and Men within the Age of One and twenty Years c. Every Inhabitant choosing or electing in any other manner than is prescribed by the Statute to forfeit an hundred Shillings half to the King St. 33. H. 8. c. 1. Ireland and half to him that will Sue for it If any Man keeps a Houshold in one County Arc. Parl. 25. and remains in Service with another Family in another County yet he may be at the choosing of Knights of the Shire where he keeps his Family Crempton's Juris 3. b. for it shall be said in Law a Dwelling in either of those Counties If the Mayor and Bailiffs or other Officer St. 23 H. 6. c. 15. Vid Cromp. Jur. 3. b. 4.2 where no Mayor is shall return other than those which be chosen by the Citizens and Burgesses of the Cities or Boroughs where such Elections be shall incur and forfeit to the King forty Pounds and moreover shall forfeit to every Person hereafter chosen Citizen or Burgess to come to Parliament and not by the same Mayor or Bailiff c. Return'd or to any other Person that will Sue for it forty Pounds That such Votes shall be deemed legal St 2. G. 2. c. 24. ibid. Sect. 2. What Votes shall be deemed legal which have been so declared by the last Determination in the House of Commons which last Determination concerning any County Shire City Borough Cinque-Port or Place shall be sinal to all Intents and Purposes any Usage to the contrary That no Person convicted of wilful and corrupt Perjury Sect. 4. Persons convicted of perjury never capable to vote or Subornation of Perjury shall after such Conviction be capable of Voting in any Election of any Member or Members to serve in Parliament That if any Elector shall ask receive Sect. 4. Persons taking Money or Reward for their Vote c. or take any Money or other Reward by way of Gift Loan or other Device or agree or contract for any Money Gift Office Imployment or other Reward whatsoever to give his Vote or to refuse or forbear to give his Vote or if any Person by himself or any imployed by him shall by any Gift or Reward or by any Promise Agreement or Security for any Gift or Reward corrupt or procure any Person to give his Vote or to forbear to give his Vote in any such Election such Person shall for every such Offence forfeit the Sum of five hundred Pounds On Conviction Forfeits 500 l with full Costs of Suit and every such Person after Judgment obtained against him in any Action of Debt Bill Plaint or Information or summary Action or Prosecution or being any otherwise lawfully Convicted thereof shall for ever be disabled to Vote in any Election to Parliament and also to hold exercise And disabled to Vote or to enjoy any Office or Franchise or enjoy any Office or Franchise to which he and they then shall or at any time afterwards may be intitled as a Member of any City Borough Town Corporate or Cinque-Port as if such Person was naturally Dead And that if any Person offending against this Act Sect. 5. Offenders in 12. Months after the Election discovering others in femnified shall within twelve Months after such Election discover any other Person offending against this Act so
Burgesses of the said High Court have had used c. Vide ante 176. That every Person which hereafter shall be elected a Knight Stat. 5. Eliz. c. 1. Knights Citizens c. before their sitting in Parliament to take the Oath of Supremacy before the Lord Steward or his Deputies and for the contrary to lose their Memberships and incur such Penalties as if they had sat without Election Return c. Citizen or Burgess or Baron for any of the Five Ports for any Parliament or Parliaments hereafter to be holden shall before he enter the Parliament House or have any Voice there openly receive and pronounce the Oath The Oath of Supremacy mentioned in this Act is abrogated by the Stat. 1 W. M. ch 1. and a new one appointed which see ante p. 177. expressed in the Stat. 1 Eliz. ch 1. England commonly called the Oath of Supremacy before the Lord Steward of the Queen's Houshold or his Deputy or Deputies for that Time to be appointed and that he which shall enter into the Parliament House without taking the said Oath shall be deemed no Knight Citizen Burgess nor Baron for that Parliament nor shall have any Voice but shall be to all Intents Constructions and Purposes as if he had never been returned nor elected Knight Citizen Burgess or Baron for that Parliament and shall suffer such Pains and Penalties as if he had presumed to sit in the same without Election Return or Authority That all and every the Knights Citizens Stat. 7. Jac 1. c. 6. Knights Citizens c. at any Parliament or Sessions to take the Oath of Allegiance before the Lord Steward c. ere they be permitted to sit Burgesses and Barons of the Five Ports of the Commons House of Parliament at any Parliament or Session of Parliament before he or they shall be permitted to enter into the said House shall make take and receive the Oath of Obedience mentioned in the Statute of 3 Jac. 1. ch 4. commonly called the Oath of Allegiance The Oath of Allegiance mentioned in this Act is abrogated by the Stat. of 1 W. M. c. 1. as aforesaid post 198. before the Lord Steward of the King's Houshold his Deputy or Deputies That none which shall be a Member of the House of Commons England shall vote in the said House St. 30 C. 2. c. 1. Members of the House of Commons shall not vote or sit there during any Debate after their Speaker chosen until they have taken the Oaths of Allegiance and Supremacy and subscribed the Test between Hours of 9 and 4 in a full House or sit there during any Debate in the said House after their Speaker is chosen until such Member shall first take the several These Oaths are abrogated by Stat. 1 W. M. c. 1. Oaths of Allegiance and Supremacy and make subscribe and audibly repeat the Declaration in this Act contained commonly called the Test which said Oaths and Declaration shall be in this and every succeeding Parliament solemnly and publickly made and subscribed betwixt the Hours of Nine in the Morning and Four in the Afternoon by every such Member at the Table in the Middle of the said House and whilst a full House of House is there duly sitting with their Speaker in his Chair and that the same be done in the House in such-like Order or Method as the House is called over by If any Member of the House of Commons shall presume to do any thing contrary to this Act Members acting contrary shall be adjudged Popish Recusants convict and suffer as such and be disabled to hold any Office or Place of Profit or Trust in England or is Dominions to sit or vote in Parlia ment bring any Action or Information at Law or Suit in Equity be Guardian of any Child Executor or Administrator of any Person or capable of any Legacy or Deed of Gâ—â— and forfeit 500 l for every Offence to any that will sue by Action of Debt c. where no Essoign c. every Member so offending shall from thenceforth be deemed and adjudged a Popish Recusant Convict to all Intents and Purposes and shall forfeit and suffer as a Popish Recusant Convict and shall be disabled to hold or execute any Office or Place of Profit or Trust England Civil or Military in any of His Majesty's Realms of England or Ireland Dominion of Wales or Town of Berwick upon Tweed or in any of His Majesty's Realms Islands or Foreign Plantations to the said Realms belonging and shall be disabled to sit or vote in Parliament or to sue or use any Action Bill Plaint or Information in course of Law or to prosecute any Suit in any Court of Equity or to be Guardian of any Child or Executor or Administrator of any Person or capable of any Legacy or Deed of Gift and shall forfeit for every wilful Offence against this Act the Sum of 500 l. to be recovered or received by him or them that will sue for the same and to be prosecuted by any Action of Debt Suit Bill Plaint or Information in any of His Majesty's Courts at Westminster where no Essoign Protection or Wager of Law shall lie It shall be lawful to and for the House of Commons as often as they shall see Occasion Members obliged to take the said Oaths and subscribe the Test in the House as often as the House shall think fit and Members acting contrary and presuming to sit incapacitated during that Parliament to order or cause all or any of the Members of Parliament openly in their House to take the said Oaths England and to make and subscribe the said Declaration at such Times and in such Manner as they shall appoint And if any Member of the House of Commons shall contrary to such Order made by their House wilfully presume to sit therein without taking the said Oaths and making and subscribing the said Declaration every such Member so presuming to sit shall be adjudged and is declared to be uncapable and disabled in Law to all Intents and Purposes to sit in the said House or give any Voice therein during that Parliament And in Case any Member of the House Such Members Election declared void and the Speaker by Order of the House to issue his Warrant for a new Election shall by virtue of this Act be disabled to sit or vote in the House then without any further Conviction or other Proceedings against such Member the Place for which he was elected is hereby declared void and a new Writ shall issue out of Chancery by Warrant from the Speaker and by Order of the said House for the Election of a new Member in the Place of such Member so disabled to all Intents and Purposes as if such Member or Members were naturally dead c. During the taking the Oaths and subscribing the Test all other Proceedings in Parliament to cease and the Oath Declaration and Subscription with a Schedule of the Names of the Persons taking and
Great Britain or of Commissioners for choosing Burgesses in Scotland to administer the Abjuration upon Oath or Affirmation to Quakers and Electors refusing it incapable to vote or being a Quaker shall refuse to declare the Effect thereof upon his solemn Affirmation as directed by an Act of Parliament made 7 W. 3. to be administred by the Sheriff President of the Meeting or chief Officer taking the Poll at any Election of Members to serve in the House of Commons for any Place in Creat Britain or Commissioners for choosing Burgesses for any Place in Scotland at the Request of any Candidate or other Person present shall not be capable of giving any Vote for any Election of any such Member to serve in the House of Commons for any Place in Great Britain or Commissioner to choose a Burgess for any Place in Scotland That no Register for the Registring Memorials of Deeds St. 6 Ann. c. 35. The Register for the East-Riding of Torâ—shire c. or his Deputy incapacitated Conveyances Wills c. within the East-Riding of the County of York or the Town and County of Kingston upon Hull or his Deputy for the Time being be capable of being chosen a Member to serve in Parliament Vide ante 212. That no Person shall be capable to sit or vote as a Member of the House of Commons St. 9 Ann. Persons incapacitated to sit or vote in the House of Commons who have not an Estate Freehold or Copyhold for Life or greater in England of 600 l. for a Knight of the Shire manfully and 300 l. for a Citizen Burgess c. and if any such elected c. the Election c. void for any County City c. within that Part of Great Britain called England c. who shall not have an Estate Freehold or Copyhold for his own Life or for some greater Estate either in Law or Equity to his own Use in Lands Tenements or Hereditaments above what will satisfy and clear all Incumbrances within that Part of Great Britain called England c. of the annual Value of six hundred Pounds above Reprizes for every Knight of a Shire and of three hundred Pounds above Reprizes for every Citizen Burgess c. And if any Persons elected or returned to serve in any Parliament as a Knight of a Shire or as a Citizen Burgess c. shall not at the Time of such Election and Return be seized of or intituled to such an Estate before required such Election and Return shall be void Nothing in this Act contained shall extend to make the eldest Son or Heir Apparent of any Peer or Lord of Parliament Eldest Son or Heir Apparent of a Peer or Person qualified to serve as a Knight of a Shire excepted Universities in England also excepted or of any Person qualified by this Act to serve as Knight of a Shire uncapable of being elected and returned and sitting and voting as a Member of the House of Commons Nor extend to either of the Universities in that Part of Great Britain called England but that they may elect and return Members to represent them in Parliament as heretofore they have done No Person shall be qualified to sit in the House of Commons No Person qualified by Virtue of a Mortgage unless in Possession of the mortgaged Premisses for seven Years before his Election by virtue of any Mortgage whereof the Equity of Redemption is in any other Person unless the Mortgagee shall have been in Possession of the mortgaged Premisses for seven Years before the Time of his Election Every Person except as aforesaid who shall appear as a Candidate Candidates to be sworn to their Estates if required by any other Candidate or two Electors or shall by himself or any others be proposed to be elected shall upon Request at the Time of such Election or before the Day to be prefixed in the Writ of Summons for the Meeting of the Parliament by any other Person who shall stand Candidate at such Election or by any two or more Persons having Right to vote at such Election take a Corporal Oath in the Form in this Act contained which see ante The respective Oaths aforesaid shall be administred by the Sheriff or Under-Sheriff Before the Sheriff or other Officer by whom the Poll is to be taken or Return made or 2 or more Justices of the Peace The Election and Return of Candidates refusing to take the Oath void for any County or by the Mayor Bailiff or other Officer or Officers for any City Burrough c. to whom it shall appertain to take the Poll or make the Return at such Election or by any two or more Justices of the Peace within England c. And if any of the said Candidates c. shall wilfully refuse to take the Oath the Election and Return of such Candidate or Person shall be void That from and after the Determination of this present Parliament 2 St. 12 Ann. No Conveyance or Right whereon Infeoffment is not taken and Seisin registred a Year before the Teste of the Writs shall intitle the Person to be elected in any Shire or Stewartry in Scotland The like as to Inoffments not taken a Year before the Date of the Warrant for a new Writ during 〈◊〉 Continuance of a Parliament Any Elector present suâ—pecting Persons to have Estates in Trust may require the Praeses of the Meeting to swear such to their Estates no Conveyance or Right whereupon Infeoffment is not taken and Seisin registrated one Year before the Teste of the Writs for calling a new Parliament shall upon Objection made in this Behalf intitle the Person so infeost to be elected at that Election in any Shire or or Stewartry in Scotland and in case any Election happen during the Continuance of a Parliament no Conveyance or Right whatsoever whereupon Infeoffment is not taken One Year before the Date of the Warrant for making out a new Writ for such Election shall upon Objection made in that Behalf intitle the Person so Infeoft to be elected at that Election and that it shall be lawful for any of the Electors present suspecting any Person or Persons to have his or their Estates in Trust and for Behoof of another to require the Praeses of the Meeting to tender the Oath in this Act contained intituled The Form of the Freeholders c. Oath to be taken upon Objection made by Stat. 12. Annae and is the same mutatis mutandis to any Elector and the said Praeses is required to administer the same In case such Elector Electee Q. refuse to Swear On Refusal to swear and subscribe the Oath incapable to be elected Stat. 1 G. 1. c. 13. and also to subscribe the said Oath such Person or Persons shall not be capable of being Elected at such Election That after the 29th of September 1715 no Person that now is or hereafter shall be a Member of the House of Commons shall Vote in the House of Commons or
and must be amended there Sed aliter nunc Every Sheriff or other Officer St. 33 H. 8. c. 1. in Ireland returning any Knight Citizen or Burgess chosen in any other Manner than is prescribed in the Statute to forfeit a 100 l. Vide Post If one be duly Elected Knight 4 Inst 49. It cites in the Margin Rot. Parl. 5 H. 4. n. 38. Citizen or Burgess and the Sheriff Return another the Return must be reformed and amended by the Sheriff and he that is duly Elected must be Inserted for the Election in these Cases is the Foundation and not the Return 18 Jac. 1. Scobel 115. The Sheriff of Leicestershire having Returned Sir Thomas Beaumont upon Report from the Committee for Elections that Sir George Hastings was duly chosen the Sheriff was ordered to Return Sir George Hastings to the Clerk of the Crown and he to accept it and file it 21 Jac. 1. Ibid. Upon Report from the Committee of Privileges That in the Election of Mr. John Maynard for Chippingham John Maynard was Chosen but by a Mistake Charles was afterward written in stead of John It was Resolved The Return shou'd be amended without a new Writ and that the Bailiff shou'd do it and not the Clerk of the Crown and that it shou'd be sent down to the Bailiff in the Country and he to Return John Maynard Esq the first Burgess 1. Febr. 1640. Ibid. It being Resolved That the Election of Mr. Erle for one of the Burgesses of Wareham is a good Election Ordered That the Officer when the Return was made or his Deputy or the Electors shou'd amend the Return But the next Day it was Ordered That Edward Harbin the late Mayor of Wareham 's Deputy shou'd come to the Bar of the House and amend the Return 20 Febr. 1640. Ibid. 116. The Bailiff of Midhurst in Sussex came to the Bar being sent for by Order of the House and amended one of the Indentures of Return of Burgesses for that Town and the other was taken off the File If a Sheriff shall Return One for Knt. of the Shire who was unduly Simon d'Ewes Jour 283. Col. 2. or not at all Elected yet he that is so Return'd remains a Member of the House till his Election be declared Void Of double Returns England and new Writs Ex Memorials of Parliament That if any Sheriff be henceforth negligent in making his Returns of Writs of Parliament St. 5 R. 2. c. 4. Sheriffs neglecting to make Returns or leaving out the Returns of Cities or Borought shall be amerced or otherwise punished as in old Times or that he leave out of the said Returns any Cities or Boroughs which be bound and of old Time were wont to come to the Parliament he shall be amerced or otherwise punished in manner as was accustomed in the said Case in times past That from henceforth in order to the Elections of Counties at the next County after the Delivery of the Writ England Proclamation shall be made in full County of the Day and Place of the Parliament St. 7. H. 4. c. 15. Proclamation to be made at the next County-Court after the Delivery of the Writ to the Sheriff for the Election of knights of the Shires and that all they that be there present as well Suitors duly summoned for the same Cause as other shall attend to the Election of the Knights for the Parliament and then in the full County they shall proceed to the Election freely and indifferently notwithstanding any Request or Commandment to the contrary And after they be chosen Sheriff's Return after the Election shall be by Indenture containing the Persons chosen sealed by the Electors and annexed to the Writ the Names of the Persons so chosen be they present or absent shall be written in an Indenture under the Seals of all them that did choose them and tacked to the same Writ which Indenture so sealed and tacked shall be holden for the Sheriff's Return of the said Writ touching Knights of the Shires In Writs of Parliament hereafter to be made this Clause shall be put Et Electionem tuam in pleno Comitatu factam sub sigillo tuo sigillis eorum qui electioni illi interfuerant nobis in Cancellaria nra ad diem locum in brevi contentu certifices indilate England Forasmuch as in the Statute 7 H. 4. ch 15. no Penalty was ordained or limited in special upon the Sheriffs of the County if they make any Returns contrary of the same Statute St. 11. H. 4. c. 1. Of Returns made by Sheriffs contrary to the Statute 7 H. 4. c. 15. Justices of Assize impower'd to inquire and on Inquest and Proof made thereof such Sheriffs to pay 100 l. to the King It is ordained that the Justices assigned to take Assizes shall have Power to inquire at their Assizes of such Returns made and if it be found by Inquest and due Examination before the same Justices that any such Sheriff hath made any Return contrary to the Tenor of the said Statute the same Sheriff shall incur the Penalty of 100 l. to be paid to our Lord the King That all Sheriffs shall have their Answer and Traverse to Inquests and Offices St. 6 H. 6. c. 4. Sheriffs shall have their Traverses to Inquests c. upon the St 7.4 c. 15. 11 H. 4. c. 1. before any Justices of Assizes hereafter to be taken upon the Stat. 7 Hen. IV. chapter 15. and 11 Hen. IV. ch 1. and the said Sheriffs shall not be endamaged unto our Lord the King or his Successors for any such Inquest taken until they be duly convict according to the Form of Law That such are to be chosen Knights of the Shire as have the greatest Number of them that may expend 40 s. by Year and above England and shall be returned by the Sheriffs of every County St. 8 H. 6. c. 7. See Cromp. Juris 3. Hakewell 48. Knights for Parliament by Indentures sealed betwixt the said Sheriffs and the said Choosers And every Sheriff of the Realm of England shall have Power to examine upon the Evangelists every such Chooser how much he may expend by the Year And if any Sheriff return Knights to Parliament contrary to the said Ordinance the Justices of Assizes in their Sessions shall have Power thereof to inquire And if by Inquest the same be found before the Justices and the Sheriff thereof be duly attainted he shall incur the Penalty of 100 l. to be paid to our Lord the King and also that he have Imprisonment by a Year without Mainprize or Bail And that in every Writ hereafter to go forth Quere mention shall be made of this Ordinance That every Sheriff St. 23 H. 6. c. 15. Sheriff after the Receipt of the Writ to deliver a Precept under his Seal to every Mayor Bailiff c. of the Cities and Boroughs within his County reciting his Writ and commanding them to choose c. after the Delivery of any Writ of Election shall
made in like Manner and Form to all Intents Constructions and Purposes as is used within the County Palatine of Lancaster or any other County and City within England which said Knights and Burgesses and every of them shall be returned by the said Sheriff into the Chancery of England in due Form and upon like Pains as is ordained that the Sheriff or Sheriffs of any other County should make their Return England Sheriff of Chester to make like Returns and on like Pains as other Sheriffs That the Burgesses of all Cities Stat. 35 H. 8. c. 11. Mayors Bailiffs c. of the twelve Shire-Towns in Wales and of Monmouth-Shire shall summon the Burgesses as well of all other Cities Boroughs and Towns in those Counties as of Burgesses of those Towns themselves to come to Elections Boroughs and Towns in the twelve Shires within Wales and County of Monmouth not finding Burgesses for the Parliament themselves and contributary to Wages of Burgesses of such Shire Towns shall be lawfully admonished by Proclamation or otherwise by the Mayors Bailiffs and other Head Officers of the said Towns or by one of them to come and give their Elections for the Electing the said Burgesses at such Time and Place lawful and reasonable as shall be assigned for the same by the said Mayors Bailiffs and other Head Officers of the said Shire Towns or by one of them That the County Palatine of Durham may have two Knights for the same County St. 25 C. 2. c. 9. Writ of Election under the Great Seal for Elections in Durham to be directed to the Bishop of Durham c. and his Precept thereon to the Sheriff of that County and the City of Durham two Citizens to be Burgesses for the same City to be elected by Writ to be awarded by the Lord Chancellor or Lord Keeper to the Lord Bishop of Durham or his Temporal Chancellor of the said County England and a Precept to be thereupon grounded and made by the said Lord Bishop or his Temporal Chancellor to the Sheriff of the said County and the same Election to be made in Manner following viz. the Elections of the Knights to be made by the greater Number of the Freeholders of the said County Palatine which shall be present at such Elections as is used in other Counties of this Kingdom and that the Election of the said Burgesses for the City of Durham to be made by the major part of the Mayor Aldermen and Freemen of the said City which shall be present at such Elections which said Knights and Burgesses Sherish of Durham to make like Returns and under like Pains as other Sheriffs St. 7 and 8 W. 3. c. 7. continued by St. 12 and 13 W. 3. c. 5. False Returns illegal and prohibited and all made contrary to the last Determination of the Right of Election in the House of Commons adjudged a false Return so elected shall be returned by the said Sheriff into the Chancery in due Form and upon the like Pains as be ordained for the Sheriff or Sheriffs of any other County in like Cases That all false Returns wilfully made of any Knight of the Shire Citizen Burgess Baron of the Cinque-Ports or other Members are against Law and are hereby prohibited and in case that any Person or Persons shall return any Member for any County City Borough Cinque-Port or Place contrary to the last Determination in the House of Commons of the Right of Election in such County England City Borough Cinque-Port or Place such Return is hereby adjudged a false Return The Party so grieved to wit He that shall be duly elected for any County Officers c. making such false Return liable to an Action at the Suit of any duly elected in any of the Courts at Westminster with double Damages and full Costs City Borough Cinque-Port or Place by such false Return may sue the Officers and Persons making or procuring the same and every or any of them at his Election in any Court of Record at Westminster and shall recover double Damages with his full Costs Any Officer that shall wilfully Officers c. falsly c. making double Returns liable to the like Action falsly and maliciously return more Persons than are required to be chosen by the Writ or Precept on which any Choice is made the like Remedy may be had against him or them and the Party or Parties that willingly procure the same by the Party grieved All Contracts Contracts Bonds c. given to procure the Return of any Member adjudged void and such as make or give them to procure any false or double Return forfeit 300 l. one third to the King another to the Poor of the County City c. and a third to the Informer with his Costs to be recovered by Action of Debt c. wherein no Essoign c. Promises Bonds and Securities whatsoever hereafter made or given to procure any Return of any Member or any thing relating thereto be adjudged void and that whoever makes or gives such Contract Security Promise or Bond or any Gift or Reward to procure such false or double Return England shall forfeit 300 l. one third Part to his Majesty another third Part to the Poor of the County City Borough or Place concern'd and one third Part to the Informer with his Costs to be recovered in any Court of Record at Westminster by Action of Debt Bill Plaint or Information wherein no Essoign Protection or Wager of Law allowed nor more than one Imparlance The Clerk of the Crown to keep a Book of Entry of every single and double Return and of every Alteration and Amendment in every such Return whereto all Persons to have Access and take Copies of so much as desired at a reasonable Fee And if the Clerk of the Crown makes not such Entry in Six Days after any Return or alters any Return without Order of the House of Commons or gives a Certificate of any Person not returned or wilfully neglects or omits his Duty herein to forfeit 500 l. for each Offence to the Party grieved to be recovered as aforesaid and lose his Office England and be for ever incapable of holding it Every Information or Action brought upon this Statute Informations or Actions on this Statute to be brought within two Years after the Cause shall be brought within the Space of two Years after the Cause of Action shall arise That when any New Parliament shall at any Time hereafter be Summoned or called Staf. 8 W. 3. c. 25. Writs of Summons to Parliament to have forty Days between the Teste and Returns and be issued with all Expedition and delivered to the proper Officer to whom its Execution belongs who shall indorse thereon the Day he received it and within three Days issue out his Precept to the like proper Officer of each Borough c. who shall also indorse the Day of his Receipt of the Precept in the former's Presence and proceed to Election in
Speaker to the House in Rapin's History Vol. II Numb 57 c. CHAP. XV. Order to be observed in the House THE Litany is read the first Thing Towns 54. after the Speaker is set in the Chair So agreed upon the Motion of Mr. Speaker 13 Eliz. 1571. When the Speaker is set in his Chair Scobel 6. every Member is to sit in his Place with his Head covered No Member in coming into the House Ibid. or in removing from his Place is to pass between the Speaker and the Member then speaking nor may cross or go overthwart the House or pass from one Side to the other while the House is sitting 23 Eliz. 1580. Sir Suron a 〈◊〉 Jour 282. Col. 2. Upon a Motion made by Sir John Croft Comptroller of her Majesty's Houshold and allowed of by the whole House That Mr. Speaker and the Residue of the House of the better sort of Calling do alway at the rising of the Trouse depart and come forth in comely and civil sort for the Reverence of the House in turning about with a low Courtesie as they make at their coming into the House and not unseemly to thrust and throng out No Member is to come into the House with his Head covered Scobel 6. nor to remove from one Place to another with his Hat on nor is to put on his Hat in coming in or removing until he be set down in his Place 39 Eliz. None to enter the House with his Spurs on Town 101 181. Vide Sir S. d'Ewes Jour 550. Col. 1.623 Col. 1. Scobel 6. Vide Sir S. d'Ewes Jour 487. Col. 1. nor until he pay the Serjeant's Fees While the House is sitting no Man ought to speak or whisper to another to the End the House may not be interrupted when any are speaking but every one is to attend unto what is spoken in which Case Penalties have been imposed When any Member intends to speak Ibid. he is to stand up in his Place uncover'd address himself to the Speaker who usually calls such Person by his Name that the House may take Notice who it is that speaks Mr. Downold going about to speak about a Bill Town Coll. 224. the Speaker interrupted him and arose without further hearing him which he took in great Disgrace and told him He would complain of him the next Sitting If any Man in this House speak wisely Town Coll 252. we do him great wrong to interrupt him if foolishly let us hear him out we shall have the more Cause to tax him per Sccretary Cecil If more than one stand up at once Scobel Vide Sir S. d'Ewes Jour 434. Col. 1 2. the Speaker is to determine who was first up and he is to speak and the other sit down unless he who was first up sit down again and give way to the other or that some other Member stand up and acquaint the House that another up before him whom the Speaker calls and the House adjudge it so While one is speaking Ibid. Vid. Town Coll. 205. none else is to stand up or interrupt him until he have done speaking and be set down and then the other may rise up and speak observing the Rules 21 Junij 1604. Ibid. It was agreed for an Order That when Mr. Speaker desires to speak he ought to be heard without interruption if the House be silent and not in Dispute When the Speaker stands up Ibid. the Member standing up ought to sit down 27 April 1604. Scobel 8. Agreed for a Rule That if any Question be upon a Bill the Speaker is to explain but not to sway the House with Arguments or Dispute 4 Junij 1604. Scobel 8. Vide Sir S. d'Ewes Jour 335. Col. 1.640 Col 2. Agreed for an Order That whosoever hisseth or disturbeth any Man in his Speech by coughing spitting c. shall answer it at the Bar. 7 Maij 1607. Ordered upon the Question Ibid. That in going forth no Man shall stir until Mr. Speaker do arise and go before and then all the rest to follow after him He who first stands up to speak Co. 12.116 Smith's Common-wealth 84. he shall shall first speak without any Difference of Persons If in Debate Words be let fall that give Offence Exceptions should be taken the same Day and before such Member go out of the House or he who is offended may move that such Person may not go out of the House 'till he hath given Satisfaction in what was by him spoken And in such Case Scobel 81. after the present Debate is over the Words must be repeated by the Person excepting and in case he desire or the House command him he is to explain himself standing in his Place which if he resuse to do or the House be not satisfy'd with such Explanation then he is to withdraw 43 Eliz. 1601. Towns Coll 199. Vide Sir S. d'Ewes Jour 630. Col. 2. It was said by Secretary Cecil If any that sit next the Door be desirous to sit next the Chair to give his Opinion I will not only give him my Place but thank him to take my Charge We that sit here take your Favours out of Courtesie not out of Duty Tho' Freedom of Speech and Debates be an undoubted Priviledge of the House Scobel 72. yet whatsoever is spoken in the House is subject to the Censure of the House Febr. 19. 1592. Towns Coll. Ibid. 35 Eliz. After the Names of the Knights Citizens and Burgesses were read and declared to the Clerk of the Crown and entered in his Book they entered into the House The House being set Vide Sir S. d'Ewes Jour pas the Earl of Derby High-Steward for this Parliament came into the House to take their Oaths All being removed into the Court of Requests the Lord High-Steward sitting at the Door called the Knights and Burgesses of every County according to the Letters of their Names in the Alphabet Alphabetically every one answered as he was call'd and having answer'd departed thence to the Parliament House Door and there took the Oath of Supremacy given him by one of the Queen's Privy-Counsellors The Fee for entering his Name into the Serjeant's Book is Two shillings Town Coll. 51. the Rewards to the Door-Keepers Three shillings and Eight-pence the Fee for returning the Indenture Two shillings Febr. 7. 1588. Id. 15. 31 Eliz. This Day the House was call'd over and all those that did then sit in the House and were present at the calling of the same did thereupon severally answer to their Names and departed out of the House as they were called 31 Eliz. 1588. Sir Simon d'Ewes Jour 432. Col. 2. By Consent of the House upon the Motion of Sir Edward Hobby Admonition was given given by Mr. Speaker That Speeches used in this House by the Members of the same be not any of them made or used as Table Talk or in any wise delivered in Notes of writing to any Person or Persons whatsoever not being Members of this House
divided into two or more Questions as Dec. 2. 1640 the Debate about the Election of two Knights was divided into two Questions No Member in his Discourse in the House may mention the Name of any other Member then present Id. 30. Vide Smyth's Common-wealth 85. but to describe him by his Title or Addition as that Noble Lord that worthy Knight or by his Office as Judge Serjeant Gentleman of the long or short Robe or by his Place as the Gentleman near the Chair near the Bar or on the other side or that Gentleman that spake last or last save one or the like During any Debate any Member Memorials ut supr 30. tho' he have spoken to the Matter may rise up and speak to the Orders of the House if they be transgressed in Case the Speaker do not but if the Speaker stand up he is first to be heard and when he stands up the other must sit down 'till the Speaker sit down But if any Person rise up to speak to the Orders of the House in the midst of a Debate Ibid. 31. he must keep within that Line and not fall into the Matter itself if he do he may be taken down by the Speaker or any other Member calling to the Orders of the House While a Member is speaking to a Debate or Question he is to be heard out Id. 31. Vid. Town Coll. 205. and not taken down unless by Mr. Speaker as in some Cases he may or that he speak of such Matter as the House doth not think fit to admit A Matter upon Debate having been once finally determined by a Question Memorials in Hakeavel 33. ought not to be again brought into Dispute 27 Martij 1604. Ibid. Sir Edward Coke Attorney-General and Dr. Hone bring a Message from the Lords desiring a Conference about the Case of Sir Francis Godwyn Vide this Argument at large in the Appendix Upon this Message it was argued That now the Judgment having pass'd the House it could not nor ought to be reversed by them and upon the Question it was resolv'd There shou'd be no Conference 2 Apr. 1604. Ibid A Vote having passed some Days past That no Conference shou'd be admitted with the Lords the same Question was again moved but was carried in the Negative And it was then urged for a Rule That a Question having been once made and carried in the Affirmative or Negative cannot be questioned again but must stand as the Judgment of the House 4 Junij 1604. Id. 45 Agreed for a Rule If two stand up to speak to a Bill He who first stood up if it be known by Demand or otherwise is to be first heard 11 Nov. 1640. Id. 69. It is declared as a constant Order of the House That if a Witness be brought to the House the House sitting the Bar is to be down otherwise if the House be in a Committee In a Debate about an Election Id. 70. it was Resolved That the Party concern'd shall be heard to inform the House and then he is to go forth When any Complaint is made against a Member Id. 71. or Exceptions taken to any Thing spoken by him after he hath been heard to explain himself if he desire or the House command it which is usually done by him standing in his Place if the House be not satisfied but sall into Debate thereof such Member is to withdraw The Members of the lower House came to the Lords upon a Conference Town Coll. 311. as they were sitting at the Table and going to the upper End thereof spake When any Bills or Messages are brought from the lower House to be presented to the upper House the Lord Keeper Towns 95. Vide Sir S. d'Ewes Jour 585. and the rest of the Lords are to rise from their Places and to go down to the Bar and there meet such as come from the lower House and from them to receive in that Place their Messages or Bills But when any answer is to be deliver'd by the Lord Keeper in the Name and behalf of the upper House Ibid. to such Knights and Burgesses as come from the lower House the said Knights and Burgesses are to receive the same standing toward the lower End of the House and the Lord Keeper is to deliver the same with his Head covered and all the Lords are to keep their Places In the Answer of the Commons House of Parliament to King James his Objection in Sir Francis Goodwyn's Case 3 Apr. 1604. Memorials ut supra 33 34. the Objection being That they refuse Conference with the Lords The Answer is in these Words Concerning our refusing Conference with the Lords there was none desired 'till after our Sentence passed and then we thought that in a Matter private to our own House which by Rules of Order might be by us revoked we might without any Imputation refuse to confer Orders and Resolves of the House taken out of the third Volume of Mr. Rush worth's Collections Part 1. 2 Apr. 1604. Id. 71. A Rule that a Question being once made and carried in the Affirmative or Negative cannot be questioned again but must stand as a Judgment of the House the Case of Sir Francis Goodwyn and Sir John Fortescue See at the End of the House of Commons Proceedings about the Aylesbur-men 9 Nov. 1640. Id. 38. Ordered that the general Order for those that are double returned shall not bind Mr. now extra Regnum 10 Nov. 1640. Id. 41. Declared in the House that at the naming a Committee if any Man rise to speak about the same the Clerk ought not to write down any more Names whilst the Member standing up is speaking Ibid. Id. 42. Declared that when a Business was begun and in Debate if any Man rise to speak to a new Business any Member may but Mr. Speaker ought to interrupt him 11 Nov. 1640. Id. 44. That whosoever shall go forth of the House to a Conference in a confused manner before Mr. Speaker shall forfeit 10 s. and that the Reporters ought to go first to take their Places at Conferences 25 Nov. 1640. Id. 60. Ordered that when any Message is to go up to the Lords none shall go out of the House before the Messenger 26 Nov. 1640. Id. 61. That neither Book nor Glove may give any Man Title or Interest to any Place if they themselves be not here at Prayers 28 Nov. 1640. Id. 66. Ordered that if any one be chosen a Member of this House and his Writ not yet returned he may notwithstanding be admitted to the Sacrament to Morrow delivering a Ticket of his Name and the place for which he serves 4 Dec. 1640. Id. 83. Ordered that whosoever does not take his Place when he comes into the House or removes out of his Place to the Disturbance of the House shall pay 12 d. to be divided between the Serjeant and the Poor and whosoever speaks so loud in the House when any Bill or other Matter is reading as to
Bill is engrossed the Clerk ought to endorse the Title thereof upon the back of the Bill and not within the Bill in any Case Ibid. So ought likewise such Bills as come from the Lords to have Titles endorsed upon the back of the Bill and not within After a Bill hath been committed Id. 151. and is reported it ought not in an ordinary Course to be committed but either to be dash'd or ingrossed and yet when the Matter is of Importance it is sometimes for special Reasons suffer'd but then usually the Re-commitment is to the same Committee About two or three Days after the Bill is thus order'd to be engrossed Id. 152. and is accordingly engrossed it is offer'd by the Speaker to be read a third Time for the Passage thereof For the most part the Speaker putteth not any one Bill to the Passage by itself alone Id. 153. but stayeth till there be divers Bills ready engross'd for the third Reading and when he hath a convenient Number which may be five or six rather less than more then he giveth Notice to the House That he purposeth next Day to offer up some Bills for the Passage and desireth the House to give special Attendance for that purpose and then the Day following he doth accordingly put them to the third Reading First private Bills until the House be grown to some fulness and then he offereth to be read the publick Bills which are engrossed It hath at some times been order'd Ibid. That for the preventing of carrying of Bills with a few Voices that no Bills shou'd be put to the Passage until Nine of the Clock at which time the House is commonly full or shortly after When the Bill is read the third Time Id. 153 the Clerk delivereth it to the Speaker who reads the Title thereof and openeth the Effect of the Bill and telleth them That the Bill hath now been thrice read and that with their Favours he will put it to the Question for the passing but pawseth a while that Men may have Liberty to speak thereto for upon the third Reading the Matter is debated afresh and for the most part it is more spoken unto this Time than upon any of the former Readings When the Argument is ended Id. 154. the Speaker still holding the Bill in his Hand maketh a Question for the Passage in this sort As many as are of Opinion that this Bill shou'd pass say Yea c. If the Voice be for the Passage of the Bill Ibid. the Clerk ought to make a Remembrance thereof in his Journal if otherwise then his Remembrance must be accordingly made Breck Abr. f. Edit 119 n. 4. Upon the Bill thus passed if it be originally exhibited in the House of Commons the Clerk ought to write within the Bill on the top toward the right Hand Soit baille aux Seigneurs Let it be deliver'd to the Lords If the Bill passed be originally begun in the Lords House Brook 119.4 then ought the Clerk to write underneath the Subscription of the Lords which always is at the foot of the Bill A cest Bill les Commons sont assentus i. e. To this Bill the Commons have assented 19 Dec. 1584. Sir Simon d'Ewes Jour 344. Col. 2. 27 Eliz. The House of Commons taking Exceptions about endorsing of Bills in the upper part of them whereas it ought to be done at the neither and lower part the Lords did very respectfully take away their said Grievance by the alteration of the Indorsinents aforesaid according to the usual and ancient Form No Bill upon the third Reading Hak. 156. for the Matter or Body thereof may be recommitted but for some particular Clause or Proviso it hath been sometimes suffered but it is to be observ'd as a Thing unusual after the third Reading It hath been much doubted Hakewel 157. whether when a Bill is in Debate for the Passage it ought not to receive the Resolution of the House the same Day wherein it is first offer'd to the Passage but Precedents are where the Case being of some Importance and the Debate growing long the Argument hath been put over to the next Day In which Case he that hath already spoken to the Bill the first Day may not again speak the Second no more than he may speak twice in one Day where the Argument is not deferred to another Day If a Bill be rejected Id. 158. the same Bill may not be offer'd to the House again the same Session but if it be alter'd in any Point material both in the Body and in the Title it may be receiv'd the second Time In the Time of the Reading of a Bill Ibid. the House should not be interrupted with any other Business and yet in 1. Eliz. the House adjourn'd itself till the next Day after the Bill for Sealing Clothes was half read only to be present at the Conference about Religion in Westminster-Abby Sometimes the House conceiving much Offence against some Bills Ibid. doth not only order them to be rejected but to be torn c. in the House When a Bill is thrice read Id. 159. and pass'd in the House there ought to be no further Alteration thereof in any Point When the Speaker hath in his Hands a convenient Number of Bills ready passed Id. 175. as five or six or therabouts he then putteth the House in Mind of sending them up to the Lords and desireth the House to appoint Messengers who accordingly do appoint some one principal Member of the House for that Purpose to whom the Bills are delivered in such Order as he ought to present them to the Lords which is done by Direction of the Speaker except the House be pleased to give special Direction therein The Order which hath usually been observed in ranking them is First Id. 176. To place those that came originally from the Lords Secondly Those that being sent up to the Lords from the Commons House were sent back to be amended Thirdly Publick Bills originally coming from the Commons House and these to be marshalled according to their Degrees in Consequence Lastly Are to be placed private Bills in such Order as the Speaker pleaseth Many Times the House with a Purpose especially to grace some one Bill sendeth it alone Ibid. with a special Recommendation thereof The Messenger for this Purpose is usually attended by thirty or forty of the House as they please and are affected to the Business The principal Messenger Id. 177. who delivers the Bills to the Lords coming in the first Rank of his Company to the Bar of the Lords House with three Congies telleth the Lords That the Knights Citizens and Burgesses of the Commons House have sent unto their Lordships certain Bills and then reading the Title of every Bill as it lieth in Order he so delivereth the same in an humble Manner to the Lord Chancellor who of Purpose cometh to receive them Bills sent from the Lords to the Commons House Ibid. if they be ordinary
their Serjeant without Writ It is the Law and Custom of Parliament 4 Inst 14 34. Rot. Parl. â—3 E. 3. n. Cot. Records f. 17. n. 6 9. That when any new Device is moved on the King's behalf in Parliament for his Aid or the like the Commons may answer That they tender the King's Estate and are ready to aid the same only in this Device they dare not agree without Conference with their Countries Whereby it appeareth That such Conference is warrantable by the Law and Custom of Parliament Mar. 19. Journal Dom. Com. 1677. It was conceived by the Commons that according to the antient Course and Method of Transactions between the two Houses when a Bill with Amendments is sent from either House to the other by Messengers of their own the House that sends them gives no Reasons of their Amendments but the House to whom it is sent if they find Cause to disagree do use to give Reasons for their Dissent to every particular Amendment every one of them is supposed to carry the Weight of its own Reason with it until it be objected against May 28. Ibid. 1678. A Paper of Reasons against a Bill viz. for wearing Woollen being printed and delivered at the Door was committed it being irregular for Reasons to be printed and published against a publick Bill before a Petition be exhibited to the House against the Bill It is to be observed 4 Inst 14. though one be chosen for one particular County or Borough yet when he is return'd and sits in Parliamment he serveth for the whole Realm for the End of his coming thither as in the Writ of his Election appeareth is general ad faciendum consentiendum c. If Offences done in Parliament might have been punished elsewhere 4 Inst 17. it shall be intended that at some Time it would have been put in Ure As Usage is a good Interpreter of Laws Coke Lit. 81. b. so Non-usage where there is no Example is a great Intendment that the Law will not bear it Not that an Act of Parliament by Non-user can be antiquated or lose his Force Coke Lit. 81. b. but that it may be expounded or declared how the Act is to be understood There is no Act of Parliament but must have the Consent of the Lords 4 Inst 25. the Commons and the Royal Assent of the King and whatsoever passeth in Parliament by this threefold Consent hath the Force of of an Act of Parliament The Difference between an Act of Parliament Ibid. and an Ordinance in Parliament is for that the Ordinance wanteth the threefold Consent and is ordained by one or two of them Some Acts of Parliament are introductory of a new Law Ibid. and some be declaratory of the ancient Law and some be of both kinds by addition of greater Penalties or the like Ibid. Some Acts are general and some private or particular All Acts of Parliament relate to the first Day of Parliament 33 H. 6. f. 18. a. 33 H. 8. Brook Parl 86 Relation 35. 4. Inst 28. Vide Sir Simon d'Ewe 's Jour 550. Col. 1 2. if it be not otherwise provided by the Act. The House of Commons is to many Purposes a distinct Court and therefore is not prorogued or adjourned by the Prorogation or Adjournment of the Lords House but the Speaker upon the Signification of the King's Pleasure by the Assent of the House of Commons doth say This Court doth Prorogue or Adjourn itself And then it is prorogued or adjourn and not before 39 Eliz. 1597. Towns Col. 101.102 Vide Sir Simon d'Ewe 's Jour 550. Col. 1 2. Nov. 5. Through a meer Mistake and Error of the Speaker and themselves the House conceived themselves to have been Adjourned by the Lord Keeper the first Day of this Parliament to this present Day When it is dissolved Ibid. the House of Commons are sent for up to the Higher House and there the Lord Keeper by the King's Commandment dissolveth the Parliament and not before A Parliament cannot be discontinued or dissolved but by Matter of Record Hutton 62. and that by the King alone The King at the Time of the Dissolution ought to be there in Person 4 Inst 28. or by Representation for as it cannot begin without the Presence of the King either in Person or by Representation so it cannot end or be dissolved without his Presence either in Person or by Representation Nihil enim tam Conveniens est naturali aequitati Bracton unumquodque dissolvi eo ligamine quo ligatum est By the Statute of 33 H. 8. c. 21. Ibid. it is declared by Act of Parliament That the King's Letters Patents under his Great Seal and signed with his Hand and declared and notified in his Absence to the Lords Spiritual and Temporal and Commons assembled in the House of Parliament is and ever was as good Strength and Force as if the King's Person had been there personally present and had assented openly and publickly to the same In the Lords House the Lords give their Voices from the puisne Lord seriatim 4 Inst 34.35 by the Word of Content or Not Content The Commons give their Voices upon the Question by Yea or No. Every Lord Spiritual and Temporal 4 Inst 43. Crompton 4. b. and every Knight Citizen and Burgess shall upon Summons come to the Parliament except he can reasonably and honestly excuse himself or else he shall be amerced c. that is respectively a Lord by the Lords and one of the Commons by the Commons By the Statute of 6 Hen. 8. c. 16. no Knight Ibid. Crompton 4. b. Citizen or Burgess of the House of Commons shall depart from the Parliament without Licence of the Speaker and Commons the same to be entered of Record in the Book of the Parliament upon Pain to lose their Wages Sickness is no Cause to remove any Knight 4 Inst 8. Citizen or Burgess of the House of Commons 18 Eliz. 1575. Sir Simon d'Ewe 's Jour 244. Col. 2. Resolved by the House That any Person being a Member of the same and being either in Service of Ambassage or else in Execution or visited with Sickness shall not in any Ways be amoved from their Place in this House nor any other to be during such Time of Service Execution or Sickness elected 31 Eliz. 1588. Id. 439. It was assented to by the whole House That none after the House is set do depart before the rising of the same House unless he do first ask Leave of Mr. Speaker on pain of paying Six Pence to the Vse of the Poor If a Lord depart from Parliament without Licence 4 Inst 44. it is an Offence done out of the Parliament and is finable by the Lords And so it is of a Member of the House of Commons he may be fined by the House of Commons It doth not belong to the Judges to judge of any Law Custom 4 Inst 50. Rot. Parl. 31 H. 6. n. 27. or Priviledge of Parliament Cardinal Wolsey
House to the Lord Chancellor for awarding Writs of Supersedeas 3 Martii Ibid. 18 Jac. 1. Upon a Report from the Committee appointed to consider of a Way of staying Trials against Members of the House that by several Precedents the Custom appeared to be in such Cases That on Motions and Orders in the House Letters were written to the Justices of Assize for stay of Trials against Members of the House which Letters were entred in the Journal-Book and that it belongeth to the Clerk to write the the same It was thereupon Resolved That the former Course of writing Letters to Justices of Assize should be held according to former Precedents 10 Junii 1607. Sir Robert Johnson Id. 95. a Member of this House moved for a Letter to stay a Trial against him in the Exchequer Which was granted as appeareth by the Entry on the 13th Day when a Petition of Sir Robert Brett was read against that Privilege The Privilege formerly granted was affirmed upon this Reason That no Man should have any Thing to withdraw him from his Service in the House The like 14 Feb. 18 Jac. 1. The Privilege of the House is so much insisted on that it hath been a Question Ibid. Whether any Member of the House could consent that himself might be sued during the Session because the Privilege is not so much the Person's as the House's And therefore when any Person hath been brought to the Bar for any Offence of this Nature the Speaker hath usually charged the Person in the Name of the whole House as a Breach of the Privilege of the House 3 Junii Ibid. 1607. Sir Thomas Holcroft a Member of the House had occasion to sue at Law and was sued with which he was content and desired the Leave of the House There was a Question Whether the House should give Leave for a Breach of Privilege and it was resolved The House might give Leave 7 Maii Id. 96. 1607. Sir Thomas Bigg and Sir Thomas Love being returned upon an Attaint in the King's Bench it being moved That in this Case they ought to have Privilege it was so ordered and the Serjeant sent with his Mace to deliver the Pleasure of the House to the Secondary the Court sitting 22 Nov. 1597. Ibid. Vide Sir Simon d'Ewe's Jour 560. Col. 2. Sir John Tracey a Member of this House being at the Common Pleas Bar to be put upon a Jury the Serjeant at Arms was presently sent with his Mace to fetch him thence to attend his Service in the House April Scobel 96. 12 Jac. 1. Sir William Bamp-field was committed by the Lord Chancellor for a Contempt after the Writ of Summons but before the Election Ordered upon the Question That he shall have his Privilege by Writ of Habeas Corpus 1 Jac. 1 Sess 2. Ibid. Sir John Peyton returned Knight for Cambridge the last Session and since chosen Sheriff Resolved That he shall attend his Service here 28 Martii 1542. Herbert's Hen. 8. 539. During this Session of Parliament some Wrong was offered to their ancient Privileges a Burgess of theirs being arrested Whereof the King understanding not only gave Way to their releasing him but Punishment of the Offenders Insomuch that the Sheriffs of London were committed to the Tower and one Delinquent to a Place called Little Ease and others to Newgate 2 Martii 1592. Scobel 112 113. Vide Moor. fo 340. n. 461. Fitzherbert's Case Vide Sir Simon d'Ewe's Jour 479 480 490 Col. 2. Upon a Report from the Committee of Privileges That one Mr. Fitzherbet was returned a Burgess and excepted against because he was alledged to be Outlaw'd and detained upon such Outlawry the House ordered That Mr. Speaker should move the Lord Keeper for an Habeas Corpus cùm Causà to bring up the Body and the Cause of Mr. Fitzherbert But the Lord Keeper returned That in regard of the ancient Liberties and Privileges of this House the Serjeant at Arms be sent by Order of this House for Mr. Fitzherbert at his own Charge by Reason whereof he may be brought without Peril of being further arrested by the Way which was approved of 1 Jac. 1. Scobel 104 105 106 107. Vid. Petyt's Miscel Parl. 222 123 124 125 The first Day of sitting Complaint was made That Sir Thomas Shirley chosen a Member of the House was arrested four Days before the Sitting of this Parliament a Warrant issued to the Clerk of the Crown for a Habeas Corpus to bring him to the House being then a Prisoner in the Fleet and the Serjeant and his Yeoman were sent for in Custody who being brought to the Bar and confessing their Fault were remitted for that Time 17 April Upon hearing Council in the House at the Bar for Sir Thomas Shirley and the Warden of the Fleet it was ordered That Simson at whose Suit and the Serjeant by whom the Arrest was made should be committed to the Tower 4 Maii A Habeas Corpus was awarded to the Warden of the Fleet to bring Sir Thomas Shirley to the House The Warden deny'd to execute it For which the 7th of May following he was sent for by the Serjeant and brought to the Bar who denying to bring his Prisoner a new Writ of Habeas Corpus was awarded and the Warden was committed to the Serjeant with this Order That if that Writ were not executed that then he should be delivered over to the Lieutenant of the Tower as the House's Prisoner 8 Maii The Serjeant was sent with his Mace to the Fleet the House sitting to require the Body of Sir Thomas Shirley But the Serjeant being deny'd a Warrant was made to the Serjeant to deliver the Warden of the Fleet to the Lieutenant of the Tower to be kept close Prisoner 11 Maii The Warden was again sent for and brought to the Bar and refusing to deliver up his Prisoner he was committed to the Place called the Dungeon or Little Ease in the Tower 14 Maii A new Warrant was ordered for a new Writ of Habeas Corpus and that the Serjeant should go with the Writ that the Warrant should be brought to the Door of the Fleet by the Lieutenant himself and there the Writ to be delivered to him and the Commandment of the House to be made known to him by the Serjeant for the executing of it that in the mean Time the Warden to be presently committed to the Dungeon and after to be returned thither again 18 Maii The Warden did deliver Sir Thomas Shirley and so was not put into the Dungeon 19 Maii He attending at the Door was brought into the Bar where upon his Knees confessing his Error and Presumption and professing he was unfeignedly sorry he had so offended this Honourable House Upon that Submission by Direction of the House the Speaker pronounced his Pardon and Discharge paying ordinary Fees to the Clerk and to the Serjeant Mr. Belgrave Sir Simon d'Ewe's Jour 688. Col. 1. being a Member of the House of Commons had
agreed That regularly he cannot be compelled out of Parliament to answer Things done in Parliament in a Parliamentary Course but it is otherwise where Things are done exorbitantly for those are not the Acts of the Court. No Privilege is allowable in Case of the Peace betwixt private Men 2 Nalson 450. much more in Case of the Peace of the Kingdom Privilege cannot be pleaded against an Indictment for any Thing done out of Parliament Ibid. because all Indictments are contra Pacem Domini Regis Privilege of Parliament is granted in regard of the Service of the Commonwealth Ibid. and is not to be used to the Danger of the Commonwealth All Privilege of Parliament is in the Power of Parliament Ibid. and is a Restraint to the Proceedings of other inferior Courts but is no Restraint to the Proceedings of Parliament 16 Car. 1 Resolved Rush 2 vol. 2d Part. 1147. That the Lords voting the propounding and declaring Matter of Supply before it was moved in the House of Commons was a Breach of Privilege of the House Dec. 1641. Resolved 2 Nalson 729. That the setting of any Guards about this House without the Consent of the House is a Breach of the Privilege of this House and that therefore such Guards ought to be dismissed Resolved upon the Question Id. 743. Nemine Contradicente That the Privileges of Parliament were broken by his Majesty's taking Notice of the Bill for suppressing of Soldiers being in agitation in both Houses and not agreed on Resolved upon the Question Ibid. Nemine Contradicente That his Majesty in propounding a Limitation and provisional Clause to be added to the Bill before it was presented to him by the Consent of both Houses was a Breach of the Privilege of Parliament Resolved upon the Question Ibid. Nem. Con. That his Majesty expressing his Displeasure against some Persons for Matters moved in the Parliament during the Debate and Preparation of that Bill was a Breach of the Privilege of Parliament Whereas his Majesty 2 Nalson 823. in his Royal Person the 4th of Jan. 1641. did come to the House of Commons with a great Multitude of Men armed in a warlike Manner with Halberts Swords and Pistols who came up to the very Door of the House and placed themselves there and in other Places and Passages near to the House to the great Terror and Disturbance of the Members then there sitting and according to their Duty in a peaceable and orderly Manner treating of the great Affairs of both Kingdoms of England and Ireland and his Majesty having placed himself in the Speaker's Chair did demand the Persons of divers Members of the House to be delivered unto him It was thereupon declared by the House of Commons Ibid. That the same is a high Breach of the Rights and Privileges of Parliament and inconsistent with the Liberty and Freedom thereof and therefore the House doth conceive they could not with Safety of their own Presons or the Indemnities of the Rights and Privileges of Parliament sit there any longer without a full Vindication of so high a Breach of Privilege and a sufficient Guard wherein they might confide The Lords cannot proceed against a Commoner Sleden's Jud. p. 84. but upon a Complaint of the Commons But Note as to Freedom from Suits and Arrests Stat. 12 13. Wil. 111. that in the Parliament of 12 13 William the Third an Act passed entitled An Act for preventing any Inconveniencies that may happen by Privilege of Parliament Which enacts Sect. I. That any Person may prosecute any Peer of this Realm or Lord of Parliament or any of the Knights Citizens and Burgess of the House of Commons for the Time being or their or any of their menial or other Servants or any other Person entitled to the Privilege of Parliament in any of the Courts of Record at Westminster or high Court of Chancery or Court of Exchequer or the Dutchy Court of Lancaster and in the Court of Admiralty and in all Causes Matrimonal and Testamentary in the Court of Arches the Prerogative Courts of Canterbury and York and the Delegates and in all Courts of Appeal from and after the Dissolution or Prorogation of any Parliament until a new Parliament shall meet or the same be reassembled And from and after any Adjournment of both Houses for above fourteen Days until both Houses shall meet or reassemble And that the said Courts respectively shall and may after such Dissolution Prorogation or Adjournment proceed to give Judgment and make final Orders Decrees and Sentences and award Execution thereon any Privilege of Parliament to the contrary notwithstanding Sect. II. Provides against subjecting the Person of any Knight Citizen or Burgess or any other intitled to the Privilege of Parliament to be arrested during the Time of Privilege Nevertheless allowing the Liberty that any Person having Cause Action or Complaint against any Peer of the Realm or Lord of Parliament so that after any Dissolution Prorogation or Adjournment as aforesaid or and before any Session of Parliament or Meeting of both Houses as aforesaid shall and may have such Process out of the Courts of King's Bench Common Pleas and Exchequer against such Peer or Lord of Parliament as he might have had against him out of the Time of Privilege And if any Person having Cause of Action against any of the said Knights Citizens or Burgesses or any other intitled to Privilege after any such Dissolution Prorogation or Adjournment or before any such Sessions or Meeting of both Houses ut supra he shall and may prosecute such Knight Citizen or Burgess or other such privileged Person in the said Courts of King's Bench Common Pleas or Exchequer by original Bill and Summons Attachment and Distress infinite out of the same Courts who are respectively impower'd to issue the same against him or them until the Defendant shall enter a Common Appearance or file Common Bail to the Action according to the Course of each Court. And that any Person having Cause of Suit or Complaint may in the Time aforesaid exhibit any Bill of Complaint against any Peer of the Realm or Lord of Parliament or against any Knight Citizen or Burgess or other Person so intitled to Privilege in the Chancery Exchequer or Dutchy Court and proceed thereon by Letter or Subpoena as usual And upon leaving a Copy of the Bill with the Defendant or at his House or Lodging or last Place of Abode may proceed thereon and for Want of an Appearance or Answer or for Non-Performance of any Order or Decree or for Breach thereof may sequester the real or personal Estate of the Party as is used and practised where the Defendant is a Peer of the Realm but shall not arrest or imprison the Body of any of the said Knights Citizens or Burgesses or other privileged Person during the Continuance of Privilege of Parliament Sect. III. That where any Person by reason of Privilege of Parliament is stayed or prevented from prosecuting any Suit