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 and 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 The King of England Fortescue c. 36. p. 84. b. neither by himself or his Ministers imposeth Tallages or any other Burdens on his Subjects or alter their Laws or make new Laws without Assent of the whole Kingdom in Parliament No Parliament no Penny Turner's Case of Bankers 95. hath been always taken notice of as a principal Foundation of this Government even by our Neighbour Princes and States who have in all Ages made their Approaches upon this Realm and evermore valued us in Proportion to the Correspondency they observed between our Kings and their Parliaments For seeing the Power of every Prince is computed from his Treasure and Martial Men and those again by the Love of his People they well enough knew that as long as a good Understanding was maintain'd there our Princes could never want the Sinews either of the Purse or of valiant mens Arms. L'Assemblie de Troys Estates Finch's 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lib. 2. c. 1. so 21. b. Cestascavoir 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 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 and 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 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 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 Discent 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 Id. 2. and these three Estates are the great Corporation or Body Politic of the Kingdom and do sit in two Houses the 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 Collect 5 6. Vid. Crompton 1. b. Barons of the Exchequer of the Coif the King 's Learned Councel 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 English-man is intended to be there present either in Person Arc. Parl. 3. Smyth's Common-wealth 74. or Procuration and Attorny of what Pre-eminence 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 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 public 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't of no great weight In 50 Ed. 3. all the Lords appeared in Person and not one by Proxy and so many excellent Things were done that it was called Bonum Parliamentum At the Return of the Writs the Parliament cannot begin Id. 6. 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 Id. 7. authorizing them to begin the Parliament or to prorogue it c. When a Parliament is call'd Id. 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 Id. 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 Id. 17. If Offences done in Parliament might have been punish'd elsewhere Ibid. Vid. 1 Inst §. 108. it shall be intended that at some Time it would have been put in Ure It doth not belong to the Judges to judge of any Law Custom Id. 50. or Priviledge of Parliament It is the just and constant Course of Parliament to bring the Party accused to his Answer yea Seld. Judic 95. 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 according to the Law and Usage of Parliament Sir R. Atkyns Argument c. 14. is properly and in the Judgment of the
sont come Judgments Et si le Parliament mesme erre Fincht's 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 2. c. 1. f. 21. b. 22. a come il poet ceo ne poet estre reverse en ascun Lieu forsque en le Parliament Which because it is omitted as several other things are in the Book translated into English I will thus give it the Reader that does not understand French The Parliament hath Absolute Power in all Cases as to make Laws to adjudge Matters in Law to try men upon their Lives to reverse Errors in the King's Bench especially where there is any Common Mischief which the ordinary Course of the Law hath not any means to remedy in such Case this is the proper Court And all things which they do are as Judgments And if the Parliament it self errs as it may that cannot be reversed in any place but in Parliament CHAP. III. House of Lords THere certainly cannot in the whole World be seen a more Illustrious Court 2 Nalson 366. than this High and Honorable 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 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 years at least A Bishop elect may sit in Parliament Ibid. as a Lord thereof 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 to make Heirs of Earldoms Members of the Vpper House Sir Simon d'Ewes Journal 〈◊〉 Col. 2. 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 Arch-Bishop of Canterbury is the first Peer of the Realm Id. 140. Col. 1. The Earl-Marshals Place in Parliament is betwixt the Lord Chamberlain Id. 535. Col. 2. and the Lord Steward 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 without licence Id. 44. it is an Offence done out of the Parliament and is finable by the Law Any Lord of the Parliament Id. 12. by License of the King upon just Cause to be absent may make a Proxy 43 Eliz. 1601. Towns Coll. 135. Agreed by the Lords That the ancient Course of the House is Vide Sir Simon d'Ewes Journal 605. 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 All the Priviledges which do belong to those of the Commons House of Parliament Hakewell 82. à fortiori do appertain to all the Lords of the Vpper 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 Vpper 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 Vpper 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 alway 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 ancient Treatise Id. 6. Col. 1. Modus tenendi Parliamentum that if a Peer neither came to the Parliament nor sent a Proxy upon his Writ of Summons he forfeited 100 l. if an Earl 100 Marks if a Baron c. Towns Coll. 4.39 40 42. It seldom happeneth that any Bishop doth nominate fewer than three or two Proctors nor any Temporal Lord more than one John Arch-Bishop of Canterbury had this Parliament five Proxies Id. 34. 1 Eliz. 4 Inst 12 13. A Lord of Parliament by License obtained of the Queen to be absent 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. Rush Coll. 269. The House of Peers made an Order 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 seriatìm 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 Coll. 11. in the House of Lords Where a Committee of Lords is selected out to meet with another Committee of the House of Commons Towns Coll. 9. neither the Judges being but Assistants nor the Queens Council being but Attendants of and upon the House were ever nominated as 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 anciently 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 Coll. 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 Vpper 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
for the Borough By the Statute none ought to be chosen a Burgess of a Town Rush Coll. 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 4 Inst 49. Citizen or Burgess of the Parliament A Person Outlawed in a Personal Cause may be a Burgess Towns Coll. 63 64. Vide John Smiths Ca. Sir Simon d'Ewes Jour 48. Col. 2. 480. Col. 1. Vide Sir Simon d'Ewes Jour 481. Col. 2. 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 Sir Simon d'Ewes Journal 482. Col. 1 yet the Priviledge of the House being urged that prevaileth over the Law A man Attainted Sir Simon d'Ewes Jour 482. Col. 1. 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 who 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 Journal 244. Col. 2. One under the Age of One and twenty years is not eligible 4 Inst 47. Neither can any Lord of Parliament sit there till he be full One and 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 Miscel Parl. 175. per Sir Edward Coke Resolved upon the Question Ibid. That the Election of Mr. Walter Steward being no natural born Subject is void and a Warrant to go for a new Writ None of the Judges of the Kings Bench or Common Pleas 4 Inst 47. 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 Judicial Places in other Courts Ecclesiastical or Civil being no Lords of Parliament Ibid. are eligible None of the Clergy Moor fo 783. n. 1083. 4 Inst 47. tho' he be of the lowest Order is eligible to be Knight 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. A man Attainted of Treason or Felony 4 Inst 48. c. is not eligible For he ought to be magìs idoneus discretus sufficiens Mayors and Bayliffs 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 Crompt 16. or have Judicial Jurisdiction or another is sick that these are Causes sufficient to choose others Any of the Profession of the Common Law 4 Inst 48. and which is in Practise of the same is eligible By special Order of the House of Commons the Attorny General is not eligible to be a Member of the House of Commons Ibid. Egerton Solicitor la Roign fuit command d'Attender en l'Vpper House Moor f. 551 n 741. Vide Sir S. d'Ewes Jour 441. Col 2 442. Col. 1. attend 3 Jours apres fuit eslie Burgess pur Reading Et fuit reteign quia il fuit primes attendant en l'Vpper Meson devant que il fuit eslie un Member de lower Meson Egerton the Queen's Solicitor was commanded to attend in the Vpper House and did attend three days afterward was chosen Burgess for Reading And he was retained because he was first attendant in the Vpper House before he was chosen a Member of the Lower House Onslow Solicitor esteant Burgess de lower Meson Moor f. 551 n 741. Vide Sir S. d'Ewes Jour 121. Col. 1 2. fuit command d'attend en upper Le lower Meson vient luy challenge demand d'aver luy fuit grant quia il fuit Member de lower Meson devant que il fuit command per Breve d'attend en le upper Onslow the Solicitor being a Burgess of the Lower House was commanded to attend in the Vpper The Lower House come and challenge him and demand to have him and it was granted because he was a Member of the Lower House before he was commanded by Writ to serve in the Vpper 18 Eliz. 1585. Sir Simon d'Ewes Jour 249. Col. 1. Concluded by the House 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. Id. 281. Col. 1. Popham Solicitor General upon demand made by the House was restored to them by the Lords because he was a Member of the House of Commons and they possessed of him before he was So licitor or had any Place of Attendance in the Vpper House No Sheriff shall be chosen for a Knight of Parliament Book of Extr. 411. Crompton 's Jur. 3. b. nor for a Burgess 1 Car. 1. 4 Inst 48. The Sheriff of the County of Buckingham was chosen Knight for the County of Norfolk and returned 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. Sess 2. Scobel 96. Sir John Peyton Kt. returned the last Session and since chosen Sheriff Resolved 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 Kt Towns Coll. 185. Vid. de hoc Sir Simon d'Ewes Jour 38. Col. 1 2.