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
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-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
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 Id. 34 41 51 55. and Corporation 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 all 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 Id. 55. in the Right of them are entire and due to both Houses for both make up the Parliament Knighton one of our best Historians doth notably disclose the ancient ends of calling Parliaments Knyghton de Eventibus Angliae l. 5. f. 2681. Col. 1 2. Petyt's Rights c. in Pref. p. 43 44. in saying Quod ex Antiquo Statuto Consuetudine laudabili approbata c. That by an ancient Statute and Custome 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 qualiter quoque 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 The House of Lords cannot exercise any Power Sir R. Atkin's Argument f. 51. as an House of Parliament or as a Court for Errors without the House of Commons be in Being at the same Time Both Houses must be prorogued together and dissolved together By the Law Parliaments ought to be very frequent Id. 59. Before the Conquest as it is untruly call'd by the Law Parliaments were to be held twice a year as appears by King Edgar's Laws So it was ordained by King Alfred By the Stat. of 4 Ed. 3. c. 14. Parliaments ought to be once a year and oftner if need be And in 36 Ed. 3. c. 10. to be once a year without Restriction if need be By 16 Car. 2. c. 1. these Acts are declared to be in Force and further it is declared and enacted That the holding of Parliaments shall not be discontinued above three years at the most The Parliament is a Court of very great Honour and Justice Plow Com. 398. of which no man ought to imagine a Thing dishonourable An Offence committed in Parliament is a very high Offence Sir R. Atkyns Arg. 60. but the higher it is the more proper it is for their Judicature and that Court is arm'd with a Power to punish the highest Offences and the highest Offenders A Parliament may err Ibid. for they are not infallible but the Law hath provided a Remedy against those Errors and a way to reform them A subsequent Parliament may reform the Errors of a preceding Parliament But to say that they will be Partial Ibid. or Unjust or Corrupt or do any Thing out of Malice is to raise a Scandal upon the whole Nation whose Representative they are If any Offence whatever be committed in the Parliament by any particular Members Ibid. it is an high Infringment of the Right and Priviledge of Parliament for any Person or Court to take the least Notice of it till the House it self either has punish'd the Offender or referred them to a due or proper Course of Punishment To do otherwise would be to make the Highest Court an Offender and to charge them with Injustice Their Right and Priviledge so far extends Id 61. that not only what is done in the very House sitting the Parliament but whatever is done relating to them or in pursuance of their Order during the Parliament is no where else to be punish'd but by Themselves or a succeeding Parliament tho' done out of the House Either House doth ever for the most part shew it self so careful to keep firm Correspondence with the other Sir Simon d'Ewes Journal 186. as that when a Bill hath pass't either of the said Houses and is sent to the other it doth for the most part pass and is neither dash'd nor alter'd without very great Cause upon mature deliberation and usually also not without Conference desir'd and had thereupon that so full Satisfaction may be given to that House from which the Bill so rejected or alter'd was sent Pessima Gens humani Generis always abhorr'd a Parliament Preface to Petyt's Miscel Parlementar and the reason thereof is demonstrative because they all knew they shou'd then be call'd to an impartial and strict Account and be punish'd according to their Demerits It was said by the Lord Bacon to Sir Lionel Cranfeild Ibid. newly made Lord Treasurer That he would recommend to his Lordship and in him to all other great Officers of the Crown one considerable Rule to be carefully observ'd which was Remember a Parliament will come The King at no Time stands so highly in his Estate Royal Petyt's Miscel Parliament 9. Vid. Cromp. Jur. 10. as in the Time of Parliament wherein the King as Head and they as Members are conjoyn'd and knit together into one Body Politic so as whatsoever Injury during that Time is offer'd to the meanest Members of the House is to be judged as done against the King's Person and the whole Court of Parliament The Prerogative of Parliament is so great Ibid. That all Acts and Processes coming out of any inferior Courts must cease and give place to the highest Statutes in England are made
of Judicature and both Houses together have Power of Judicature This Power is best understood by reading the Judgments and Records of Parliament at large Ibid. and the Journals of the House of Lords and * 6 H. 8. c. 16. Rast 429 430. Vaughan 285. the Book of the Clerk of the House of Commons If Inconveniencies necessarily follow out of the Law only the Parliament can cure them If a Marriage be declared by Act of Parliament to be against God's Law Id. 327. we must admit it to be so for by a Law that is by an Act of Parliament it is so declared In many Cases Multitudes are bound by Acts of Parliament 4 Inst 4 5. which are not Parties to the Elections of Knights Citizens and Burgesses as all they that have no Free-hold or have Free-hold in ancient Demesne and all Women having Free-hold or no Free-hold and Men within the Age of One and twenty years c. It is declared by the Lords and Commons in full Parliament Id. 14. upon Demand made of them on the Behalf of the King that they could not assent to any Thing in Parliament that tended to the disherison of the King and his Crown whereunto they were sworn The Expounding of the Laws Hakewel 94. doth ordinarily belong to the Reverend Judges and in Case of greatest Difficulty or Importance to the High Court of Parliament Errors by the Law in the Common Pleas are to be corrected in the King's Bench 4 Inst 22. Vid. Stat. 1. Jac. 1 c. 1. and of the King's Bench in the Parliament and not otherwise Actions at Common Law are not determined in this High Court of Parliament Selden 's Judicature 2. yet Complaints have ever been received in Parliaments as well of private Wrongs as publick Offences And according to the Quality of the Person and Nature of the Offence they have been retained or referred to the Common Law There be divers Precedents of the Trial of Bishops by their Peers in Parliament Id 4.5 as well for Capital Offences as Misdemeanors whereof they have been accused in Parliament As the Arch-Bishop of Canterbury 15 Ed. 3. n. 6 7 8. ibid. postea 44. 39. ibid. 17 E. 3.22 And the Bishop of Norwich 7 Rich. 2. for Misdemeanors So were the Bishops of York and Chichester tried for Treason by their Peers in Parliament upon the Appeal of the Lords Appellants 11 R. 2. Anno 21 R. 2. The Commons Acensed the Arch-Bishop of Canterbury of Treason and the Temporal Lords judged him a Traytor and Banished him But if the Bishop be accused out of Parliament he is to be tried by an ordinary Jury of Free-holders for his Honour is not inheritable as is the Temporal Peers out of Parliament save that only of their Trial. As no Day of Grace to be granted against them in any Suit A Knight to be returned upon the Pannel where a Bishop is Party and no Process in a Civil Action to be awarded against his Body and the like And by this it appeareth what Persons are de Jure triable by the Lords in Parliament viz. their Peers only Judgments in Parliaments for Death have been strictly guided per Legem Terrae Id. 168. The Parliament hath three Powers Sir Rob. Atkyns Argument c. 36. a Legislative in Respect of which they are call'd the three Estates of the Realm a Judicial in respect of this it is call'd Magna Curia or the High Court of Parliament a Counselling Power hence it is call'd Commune Concilium Regni The Parliament gives Law to the Court of the King's Bench Id. 49. and to all other Courts of the Kingdom and therefore it is absurd and preposterous that it shou'd receive Law from it and be subject to it The greater is not judged of the less All the Courts of Common Law judge only by the ordinary Rules of the Common Law Id. 50. but the Proceedings of Parliament are by quite another Rule The Matters in Parliament are to be discussed and determined by the Custom and Usage of Parliament and the Course of Parliament and neither by the Civil nor the Common Law used in other Courts The Judges of all the Courts of Common Law in Westminster are but Assistants Ibid. and Attendants to the High Court of Parliament And shall the Assistants judge of their Superiors The High Court of Parliament is the dernier Resort Ibid. and this is generally affirm'd and held but it is not the last if what they do may yet again be examin'd and controlled Because the High Court of Parliament proceeds by a Law peculiar to that High Court Id. 52. which is call'd Lex Consuetudo Parliamenti and not by the Rules of the Common Law and consists in the Customs Usages and Course of Parliament no Inferior Court can for this very Reason judge or determine of what is done in Parliament or by the Parliament A Statute Arc. Parl. 85. or Act of Parliament shall not be proclaimed for the Parliament represents the Body of the whole Realm for there are Knights and Burgesses of every County and Town But otherwise where it is ordained by the Act that it shall be proclaimed A man Attainted of Felony Id. 100. or Treason shall not be restored in Blood without Parliament 28 Ed. 1. Petyt's Appendix to Miscel Parliament n. 38. A Truce being concluded between the English and French by King Edward's Ambassadors who therein had dishonorably agreed to include the Scots the Ambassadors at the ensuing Parliament were sharply rebuked and corrected not only by the King himself the Prelates and Nobles but by the Commons The Court of Parliament was the Sanctuary Turner's Case of Bankers 36. whether the distressed Subject in his Exigence fled for Shelter and Refuge and alway found it Into the Sacred Bosom of Parliaments it was Ibid. Vide Several Precedents and Records that they powred out their Sighs and Groans with constant Success and when in Cases of high Nature the Common Law was arrested and stopt in her Proceedings Parliaments evermore ran into their Rescue and in dutiful ways discharged those Locks and Bars which had been unjustly sastned on the Exchequer The Right of the Crown of England Stat. Provis 25 Ed. 3. Rast Stat. 99. and the Law of the said Realm is such that upon the Mischiefs and Damages which happen to the Realm the King ought and is bound by his Oath of the Accord of his People in Parliament thereof to make Remedy c. To conclude this Chapter Le Parliament ad Absolute poiar en touts Cases come a faire Leys d'adjuger Matiers en Ley à trier vie del home à reverser Errors en Bank le Roy especialment lou est ascun Commune Mischief que l'ordinary Course del Ley n'ad ascun means à remedier en tiel Case ceo est le proper Court Et touts choses que ils font
That they may have Power to Correct any of their own Members that are Offenders And some make a Fifth Id. 62. That the Members their Servants Chattels and Goods necessary may be free from all Arrests Tho' the Speaker does upon his being approv'd of by the King make it his humble Petition to have Liberty of Speech allow'd the Commons Sir R. Atkin's Argument c. 33. from whence Dr. Heylin and Sir Robert Filmer and others infer That the Commons enjoy that Liberty by the King's Grace and Favour yet they are clearly answered by the words that accompany that humble Petition he prays That they may be allowed that Freedom as of Right and Custom they have used and all their ancient and just Priviledges and Liberties So that this from the Speaker is a Petition of Right The Speaker having ended his Oration Elsyng 165 the Lord Chancellor confers again with the King and makes Answer thereunto in his Majesties Name granting his Requests c. That humble and modest way of the Peoples addressing to their Soveraign Sir R. Atkyns Argument 33. either for the making Laws which has been very ancient or for granting Priviledges by the Speaker of the Commons shews great Reverence and becomes the Majesty of the Prince so to be addressed to but let it not be made an Argument that either the Laws thereupon made or the Priviledges so allow'd are precarious and meerly of Favour and may be refused them The Oration being answered by the Lord Chancellor Co. 12.115 4 Inst 10. and his Petitions allow'd the Speaker and the Commons shall depart to the House of Commons where the Speaker in the Chair shall request the Commons That inasmuch as they have chosen him for their Mouth they would assist him and favourably accept his Proceedings which do proceed out of an unfeigned and sincere Heart to do them service Scobel 5. Vide Sir S. d'Ewes Jour 43 44. The first Business in the House is ordinarily to read a Bill that was not pass't in the last Parliament preceeding or some new Bill as in that of 10 Jac. 1. But on that Day before that was done there was a Motion made for Priviledge of Sir Thomas Shirley who was chosen a Member to serve in that Parliament but detained by an Arrest Upon which a Habeas Corpus was awarded and the Serjeant that Arrested him and his Yeoman sent for and a Committee for Elections and Priviledges chosen CHAP. XIII Business of the Speaker THE Mace is not carried before the Speaker Elsyng 153. until his Return being presented to the King and allow'd of Modus tenend Part. 36. Smith's Common-wealth 84. The Speaker sits in a Chair placed somewhat high to be seen and heard the better of all the Clerks of the House sit before him in a lower Seat who read Bills c. The Speaker's Office is Modus tenend Parl. 37. Smyth's Common-wealth 86. when a Bill is read as briefly as he may to declare the Effects thereof to the House That Day that the Speaker being approved by the King Haktwel 138 139. Sir Simon d'Ewes Jour 43 44. cometh down into the Commons House to take his Place the Custom is to read for that time only one Bill left unpast the last Sessions and no more to give him Seisin as it were of his Place 1 Jac. 1. Scobel 19. Sir Edward Philips was chosen Speaker and the same Day before he was presented to the King he signed a Warrant as Speaker by Command of the House for Election of another Person in the Place of Sir Francis Bacon being chosen in two Places A general Order hath usually been made in the Beginning of the Session Id. 20. to authorize the Speaker to give Warrants for new Writs in Case of Death of any Member or of double Returns where the Party makes his Choice openly in the House during that Session Where such general Order is not made Ibid. Writs have issued by Warrant of the Speaker by Vertue of Special Order upon Motion in the House Oftentimes on the first Day of the Meeting of the House Scobel 18. as soon as the Speaker hath been approv'd and sometime before such Persons as have been doubly return'd have made their Choice 43 Eliz. Mr. Johnson said Towns 191 192. The Speaker may ex Officio send a Warrant to the Clerk of the Crown who is to certifie the Lord Keeper and so make a new Warrant The Speaker said Ibid. Sir Simon d'Ewes Jour 627. Col. 2. That I may inform you of the Order of the House the Warrant must go from the Speaker to the Clerk of the Crown who is to inform the Lord Keeper and then to make a new Writ This Proposition I hold Ibid. Vide Sir S. d'Ewes Journ 627. Col. 2. That our Speaker is to be commanded by none neither to attend any but the Queen per Sir Edward Hobby The Warrant is to be directed to the Clerk of the Crown in Chancery Socbel 20. Vid. Towns Coll. 216 217. Vide Sir S. d'Ewes Jour passim Scobel 65. Petyt's Miscell Parl. 140. by Order of Parliament 13 Novemb. 1601. May 1604. Resolved That no Speaker from henceforth shall deliver a Bill of which the House is possessed to any whosoever without leave and allowance of the House but a Copy only It is no Possession of a Bill except the same be delivered to the Clerk to be read or that the Speaker read the Title of it in the Chair 5 Car. 11. 1628. Rush Coll. 660. The Speaker being moved to put the Question then proposed by the House he refused to do it and said That he was otherwise Commanded from the King 2 Martij The Speaker was urged to put the Question who said I have a Command from the King to adjourn till the Tenth of March and to put no Question and endeavouring to go out of the Chair was notwithstanding held by some Members the House foreseeing a Dissolution till a Protestation was publish'd When the Queen made an Answer to the Speaker's Speech he Towns Coll. 263. Vide Sir S. d'Ewes Journ 659. Col. 1 2. with the whole House fell upon their Knees and so continued till she bid them stand up 35 Eliz. Mr. Speaker was sent for to the Court Towns Coll. 61. where the Queens Majesty her self gave him Commandment what to deliver to the House The Speaker commanded upon his Allegiance not to read any Bills touching Matters of State or Reformation in Causes Ecclesiastical Id. 63. 16 Car. 1. 1640. Apr. 16. Rush Coll. 1127. The Speaker received Command from the King That his Majesties Speech shou'd be Entred in the Journal of the Commons House of Parliament whereupon the House passed a declarative Vote That they did not expect that this shou'd be performed by other Speakers but upon the like special Command or by the Order of the House Eodem Id. 1137.
Common Law doth enact nothing neither is any Proviso good therein But the Speaker is not precisely bound to any of these Rules Hakewel 136. for the preferring of Bills to be read or passed but is left to his own good Discretion except he be specially directed by the House to the contrary and tho' he be earnestly pressed by the House for the reading of some one Bill yet if he have not had convenient time to read the same over and to make a Breviat thereof for his own memory the Speaker doth claim a Priviledge to defer the Reading thereof to some other time The Clerk being usually directed by the Speaker but sometime by the House what Bill to read Hakewel 137. with a loud and distinct Voice first reads the Title of the Bill and then after a little Pawse the Bill it self which done kissing his Hand he delivereth the same to the Speaker who standeth up uncover'd whereas otherwise he sitteth with his Hat on and holding the Bill in his Hand saith This Bill is thus intituled and then readeth the Title which done he openeth to the House the Substance of the Bill which he doth either trusting to his memory or using the help or altogether the reading of his Breviat which is filed to the Bill Hakewel 137. Vide Scobel 42. Sometimes reading the Bill it self especially upon the Passage of a Bill when it hath been much alter'd by the Committees so that thereby it differeth very much from the Breviat When he hath open'd the Effect of the Bill Id. 138. he declareth to the House That it is the first Reading of the Bill and delivereth the same again to the Clerk The Bill containing the King's General Pardon hath but one Reading in the Lord's House Id. 138. Vid. Towns Coll 29 44 126. Vide Sir S. d'Ewes Journ 91. Col. 2. and one below the Reason is because the Subject must take it as the King will give it without any Alteration and yet many times Exceptions are taken at the Reading thereof for that it is not so favourable as in former times The like of a Bill of Subsidies granted by the Clergy Hakew. Ib. The usual Course is to spend the Morning Id. 139. before the House grow full in the first Readings and to defer the second or third Reading till the House grow full No Knight Citizen Co. 12.116 or Burgess ought to speak above once to one Bill in one day unless sometime by way of Explication At the first Reading of the Bill Hakewel 139. it is not the Course for any man to speak to it but rather to consider of it and to take time till the second Reading unless it carry matter of apparent hurt to the Commonwealth and so to be rejected Nor for any Addition Ibid. for thereby it is imply'd that the Body of the Bill is good which till the second Reading doth not regularly come to the Trial. If any Bill originally begun in the Commons House Id. 140. Scobel 42. upon the first Reading happen to be debated to and fro and that upon the Debate the House do call for the Question it ought to be not Whether the Bill shall be read the second time for so it ought to be in ordinary Course but whether it shall be rejected If a Bill coming from the Lords be spoken against Hak. Ibid. and pressed to be put to the Question upon the first Reading the Speaker in favour and respect thereto shou'd not make the Question for Rejection as in the former Case but shou'd first make the Question for the second Reading and if that be deny'd then for Rejection But usually when any such Debate is the Speaker doth forbear to make any Question at all thereupon except he be much pressed thereto it being better to consider of it before it be put to such a hazard If the Question for Rejection be made Id. 141. Scobel 42. and the greater Voice be to have it rejected the Clerk ought to note it rejected in his Journal and so to indorse it on the back of the Bill and it shall be no more read If the Voice be to have the Bill retained it shall have his second Reading in Course Ibid. It is against the ordinary Course that the same Bill shou'd be read more than once in one day but for special Reasons it hath been suffer'd that private Bills have been in one day read twice It is likewise done sometimes Hakewel 142. when the House lacketh other Businesses wherein to imploy themselves especially if the Bill be of no great Importance howsoever it is never but upon Motion and special Order When special Committees appointed for the drawing of some one special Bill Ibid. present the same ready drawn to the House it hath been often seen that the same Bill hath not only been twice read but order'd also to be engrossed the same day It is not without Precedent that a Bill hath been thrice read Ibid. and passed in the same day But this is a President that standeth alone A Bill was read the fourth time Sir Simon d'Ewes Jour 90. Col. 1. before it pass't the House and tho' there want not other Presidents yet it is rare and worth the Observation A Bill was put to the Question Id. 335. Col. 1. upon the first Reading and rejected but it is not usual for a Bill to be put to the question upon the first Reading 27 Eliz 1584. Id 337. Col 2. 415. Col. 2. A Bill was committed upon the third Reading having been formerly committed upon the second which is not usual A Bill may be preserr'd to be secondly read the next day after the first Reading Hakewel 143. but the usual Course is to forbear for two or three days that men may have more time to consider upon it except the Nature of the Business be such that it requireth haste After the Bill is secondly read Ibid. the Clerk as before in humble manner delivereth the same to the Speaker who again readeth the Title and his Breviat as he did upon the first Reading which done he declareth That it was a second Reading of the Bill And then he ought to pawse a while expecting whether any of the House will speak to it for before the Speaker hath so declared the state of the Bill no man shou'd offer to speak to it and then and not before is the time when to speak If after a pretty distance of time Ibid. no man speak against the Bill for matter or form he may make the Question for ingrossing thereof if it be a Bill originally exhibited into the Commons House So likewise if divers speak for the Bill Id. 144. without taking Exception to the Form thereof he may make the same Question for the ingrossing The like Question for the ingrossing ought to be made Ibid. if the greater Voice be
Bill en tiel Form les Commons sont assentuz al Scedule les Seigneurs a mesme cestuy Bill annex donques serra bayl al Clerk del Parliament If the Commons grant Poundage for four years and the Lords grant but for two years the Bill shall not be sent back to the Commons but if the Commons grant but for two years and the Lords for four years there it shall be redelivered to the Commons And in that Case the Lords may make a Schedule of their intent or Endorse the Bill in this Form The Lords do assent to the continuing for four years And when the Commons have the Bill again and will not assent to it that cannot be an Act but if the Commons will assent then they endorse their Answer on the Margin below within the Bill in this Form The Commons do assent to the Schedule of the Lords annexed to this Bill and then it shall be sent to the Clerk of the Parliament The Custom and Priviledge of this House hath always been Vide Sir S. d'Ewes Journ 483. Col. 2. first to make offer of the Subsidies from hence then to the upper House except it were that they present a Bill unto this House with desire of their Assent thereto and then to send it up again And Reason it is that we shou'd stand upon our Priviledge seeing the Burden resteth upon us as the greatest Number per Francis Bacon 35 Eliz 1592. The Lord Chancellor in Parliament offer'd the Commons a Writ to deliver their Burgess Petyt 's Miscell Parl. 4. in Margin but they refused it as being clear of Opinion That all their Commandments and Acts were to be done and executed by their Serjeant without Writ It is the Law and Custom of Parliament 4 Inst 14 34 Rot. Parl. 13 E. 3. n. Cott. 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 Kings Estate and are ready to aid the same only in this Device they dare not agree without Conference with their Countreys whereby it appeareth That such Conference is warrantable by the Law and Custom of Parliament It is to be observed 4 Inst 14. tho' one be chosen for one particular County or Borough yet when he is return'd and sits in Parliament 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 consent iendum c. If Offences done in Parliament might have been punish'd 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 Litt. 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 Co. 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 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 Some Acts are general and some private or particular All Acts of Parliament relate to the first day of Parliament Ibid. 33 H. 6. f. 18. a. 33 H. 8. Brook Parl 86. Relation 35. if it be not otherwise provided by the Act. The House of Commons is to many Purposes a distinct Court 4 Inst 28. Vide Sir S. d'Ewes Jour 550. Col. 1 2. and therefore is not prorogued or adjourned by the Prorogation or Adjournment of the Lords House but the Speaker upon signification of the King's Pleasure by the Assent of the House of Commons doth say This Court doth Prorogue or Adjourn it self And then it is Prorogued or Adjourned and not before 39 Eliz. 1597. Towns Coll. 101 102. Vide Sir S. d'Ewes 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 4 Inst 28. ought to be there in Person 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 lagatum est By the Statute of 33 H. 8. c. 21. it is declared by Act of Parliament Ibid. 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 higher House of Parliament is and ever was of 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 4 Inst 34 35. the Lords give their Voices from puisne Lord seriatim 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 entred of Record in the Book of the Clerk of the Parliament upon pain to loose their Wages Sickness is no cause to remove any Knight Citizen 4 Inst 8. or Burgess of the House of Commons 18 Eliz. 1575. Sir Simon d'Ewes Journ 244. Col. 2. Resolved by the House That any person being
the Rights and Priviledges of Parliament sit there any longer without a full Vindication of so high a Breach of Priviledge and a sufficient Guard wherein they might confide The Lords cannot proceed against a Commoner Selden 's Jud. p. 84. but upon a Complaint of the Commons APPENDIX The Report of a Case happening in Parliament in the first year of K. James the First which was the Case of Sir Francis Goodwyn and Sir John Fortescue for the Knights Place in Parliament for the County of Bucks Translated out of the French IN this Case after that Sir Francis Goodwyn was elected Knight with one Sir William Fleetwood for the said County which Election was freely made for him in the County and Sir John Fortescue refused notwithstanding that the Gentlemen of the best Rank put him up The said Sir John Fortescue complained to the King and Council Table he being one of them to wit one of the Privy Council that he had been injuriously dealt with in that Election which does not appear to be true But to exclude Sir Francis Goodwyn from being one of the Parliament it was objected against him that he was Outlawed in Debt which was true scilicet He was Outlawed for 60 l. 31th of Queen Elizabeth at the Suit of one Johnson which Debt was paid and also the 39th of Eliz. at the Suit of one Hacker for 16 l. which Debt was also paid and that notwithstanding the King by the Advice of his Councel at Law and by the Advice of his Judges took Cognisance of these Outlawries and directed another Writ to the Sheriff of the said County to elect another Knight in the place of the said Sir Francis Goodwyn which Writ bore Date before the Return of the former And this Writ recites That because the said Sir Francis was Outlawed prout Domino Regi constabat de Recordo and for other good Considerations which were well cognisant to the King and because he was Inidonious for the Business of the Parliament therefore the King commanded him to elect one other Knight in his room which Writ was executed accordingly and Sir John Fortescue elected And at the day to wit the first day of the Parliament both Writs were return'd the first with the Indenture sealed between the Sheriff and the Freeholders of Bucks in which Sir Francis Goodwyn and Sir William Fleetwood were elected Knights for the Parliament and also the Sheriff returned upon the Dorse of the Writ that the said Sir Francis was Outlawed in two several Outlawries and therefore was not a meet Person to be a Member of the Parliament House The second Writ was returned with an Indenture only in which it was recited That Sir John Fortescue by reason of the second Writ was elected Knight Both these Returns were brought the third sitting of the Parliament to the Parliament House by Sir George Copping being Clerk of the Crown And after that the Writs and Returns of them were read it was debated in Parliament Whether Sir Francis Goodwyn should be received as Knight for the Parliament or Sir John Fortescue And the Court of Parliament after a long Debate thereupon gave Judgment That Sir Francis Goodwyn should be received and their Reasons were these First Because they took the Law to be that an Outlawry in Personal Actions was no Cause to Disable any Person from being a Member of Parliament and it was said That this was Ruled in Parliament 35th of Queen Elizabeth in the Parliament House in a Case for one Fitz-Herbert Another President was 39 H. 6. Secondly The Pardons of the 39th of Queen Eliz. and 43 Eliz. had pardoned those Outlawries and therefore as they said he was a Man able against all the World but against the Party Creditor and against him he was not But in this Case the Parties were paid Also Thirdly It was said that Sir Francis Goodwyn was not Outlawed because no Proclamation was issued forth to the County of Bucks where he was Commorant and Resiant And therefore the Outlawry being in the Hustings in London and Sir Francis Goodwyn being Commoran in Bucks the Outlawry no Proclamation issuing to the County of Buks was void by the Statute of the 31th of the Queen which in such Cases makes the Outlawries void Fourthly It was said that the Outlawries were 1. Against Francis Goodwyn Esq 2. Against Francis Goodwyn Gent. and 3. The Return was of Francis Goodwyn Kt. Et quomodo constat that those Outlawries were against the said Sir Francis Goodwyn for these Reasons also they Resolved that the Outlawries were not any matter against Sir Francis Goodwyn to disenable him to be a Knight for the County of Bucks Fifthly It was said That by the Statute of 7 H. 4. which prescribes the manner of the Election of Knights and Burgesses it is Enacted That the Election shall be by Indenture between the Sheriff and the Freeholders c. that the Indenture shall be the Return of the Sheriff It was also said That the Presidents do warrant this Judgment videlicet 1. One President of the 39 H. 6. where Person Outlawed was adjudged a sufficient Member of Parliament Another 1 Eliz. and ot that time one Gargrave who was a man learned in the Law was Speaker and of the Queens Council 2. Another was the Case of one Fludd in the 23th of the Queen who being Outlaived was â—â—â—udged that he should be Priviledged by Parliament and at that time the Lord Chief Justice Popham was Speaer And 3. In the 35th of Elizabeth there were three Presidents scil one of Fitzherbert another of one Killegrew being Outlawed in 52 Outlawries and the third of Sir Walter Harecourt being outlawed in eighteen Outlawries But after this Sentence and Judgment of the Parliament the King's Highness was displeased with it because the second Writ emanavit by his Assent and by the Advice of his Council And therefore it was moved to the Judges in the Vpper House Whether a Person Outlawed could be a Member of Parliament who gave their Opinions that he could not And they all except Williams agreed that the Pardon without a Scire facias did not help him but that he was Outlawed to that purpose as if no Pardon had been granted And upon this the Lords sent to the Lower House Desiring a Conference with them concerning this Matter which Conference the Lower House after some deliberation denied for these Reasons 1. Because they had given their Judgment before and therefore they could not have Conference de re Judicata as in like manner they did 27 Queen Eliz. upon a Bill which came from the Lords and was rejected by Sentence upon the first Reading Sir Walter Mildmay being then of the Privy Council and of the House 2. Because they ought not to give any Accompt of their Actions to any other Person but to the King himself This Answer the Lords did ill resent and therefore refused Conference in other Matters concerning Wards and Respite of Homages and
Returned And notwithstanding their Resolutions scilicet the Resolution of the Judges the Commons House hold clearly that Sir Francis Goodwyn was well Received into Parliament and the King commanded them to Confer together and Resolve if they could of Themselves and if they could not Resolve to Confer with the Judges and then to Resolve and when they were Resolved then to deliver their Resolution to his Councel not as Parliament men but as his Privy Council by whose hands he would receive the Resolution and for that purpose he left them behind him he himself being to ride to Royston a hunting And to pursue the Commandment of the King the Commons House clearly Resolved That what they had done was well and duly done and they were of Opinion clearly against the Judges as to the Matter of the Outlawry and that Ratione of the Presidents And also that the Parliament only had to do with the Sheriff's Returns of Members of Parliament and that the Returns ought not to be made till the first day of the Parliament and therefore They would not confer with the Judges But they appointed a Committee to consider of the Reasons to be delivered to the Council for the Satisfaction of the King which Committee by the Assent of All the House of Commons sent to the Lords this Resolution following videlicet As to what the King taxed the House for That they medled with the Sheriff's Return of Members of Parliament Note This Resolution was written in Parchment and so delivered to the Council of the King not as Parliament men but Representing the King's Person and a Copy thereof was kept in the House being but one half of the Body the Lords being one and the Principal Part of the Parliaments Body As to that They Answered That all Writs for the Election of Members of Parliament were returned into the Parliament House before 7 Hen. 4. at which time it was Enacted That all such Returns ought to be made in Chancery and that appeared by the Records from the Time of Edward the First until the said Year of the Seventh of Henry the Fourth And therefore the Parliament must of Necessity have only medled with the Returns till the making of the said Statute of the Seventh of Henry the Fourth at which time the place of the Return was alter'd and Enacted to be in Chancery but yet that did not take away the Jurisdiction of the Parliament to meddle with the Returns of the Members of Parliament but that remained as it was before And this was manifest as well by Reason as by Vse For that Court is to meddle with Returns where the Appearance and Service of Members is to be made and used But in the Parliament only the Appearance and Service are to be made and used and therefore in the Parliament only are the Returns to be examined and censured Likewise ever since the making of the said Statute of the Seventh of Henry the Fourth the Clerk of the Crown attends the Parliament every day till the end of it with all the Writs and Returns and at the end of the Parliament he brings them into the Petty Bag. The Presidents also do warrant this intermedling with Returns for the Parliament as in the Twenty ninth of the Queen a Writ issued forth to the Sheriff of _____ who made a Return before the day into Chancery and the Chancellour upon that Return containing such matter as this Writ now contains sent a second Writ to the said Sheriff who thereupon made a new Election and that second Writ was also returned and both the Writs and Returns brought into Parliament and there Censured by the Parliament That the first should stand and that the second Election was void and that the Chancellour hath no Power to award a second Writ nor to meddle with the Return of it and divers other Presidents were shewn by the Commons to the same Effect videlicet In the Nine and twentieth of Queen Elizabeth One. And in the Three and fortieth of Queen Elizabeth another And in the Thrity fifth of the Queen two Whereof one was upon the Return of the Sheriff that the Party first elected was Lunatick and thereupon the Parlament examined it and upon Examination thereof they found the Return true and gave a Warrant for another Writ As to the Matter that they were but One half of the Body to that they said That though in the making of Laws they were but an Half Body yet as to Censuring of Priviledges Customs Orders and Returns of their House They were an Entire Body as the Vpper House was for their Priviledges Customs and Orders which Continual and Common Vsage hath Approved of As to their Charge of having used Precipitancy and Rashness they Answered That they used it in such a Manner as in all Other Cases they were wont to do scilicet To have first a Motion of the Matter in Controversie and then they caused the Clerk of the Crown to bring the second day the Writs and Returns and They being thrice read they proceed to the Examination of them and upon Examination gave Judgment which was the true Proper Course of the Place As to the House's not having used the King well the thing being done by his Command they say That they had no Notice before their Sentence that the King himself took any special Regard of that Case but only that his Officer the Chancellour had directed the second Writ as formerly had been done As to the Matter of the Outlawry They said That they understand by his Royal Person more strength and light of Reason from it than ever before and yet it was without Example That any Member of the House was put out of the House for any such Cause but to prevent that they had prepared a Law That no Outlawed Person for the time to come should be of the Parliament nor any Person in Execution should have the Priviledge of Parliament But they said further That Sir Francis Goodwyn was not Outlawed at the Day of his Election for he was not Quinto Exactus the five Prolamations never had been made which Proclamation they in London always spare except the Party or any for him require it and that Exigent was never Returned nor any Writ of Certiorari directed to the Coroners to certifie it but after his Election which was a thing unusual the Money being paid the Sheriffs being long since dead to Disenable the said Goodwyn to serve in Parliament that the Exigent was returned and the Names of the deceased Sheriffs put thereto Et ex hoc fuit without doubt that Goodwyn could not have a Scire Facias for there was no Outlawry against him and by Consequence the Pardons had discharged him And They farther shewed to the King That if the Chancellour only could examine Returns then upon every Surmise whether it were True or False the Chancellour might send a Second Writ and cause a New Election to be made And thus the Free Election of the County should be Abrogated which would be too Dangerous to the Commonwealth For by such means the King and his Council might make Any Man whom they would to be of the Parliament House against the great Charter and the Liberties of England FINIS BOOKS Printed for and sold by Timothy Goodwin at the Maiden-head against St. Dunstan 's Church in Fleetstreet 1. AN Enquiry into the Power of Dispensing with Penal Statutes together with some Animadversions upon a Book writ by the late Lord Ch. Justice Herbert Entituled A short Account of the Authorities in Law upon which Judgment was given in Sir Edw. Hales Case 2. The Power Jurisdiction and Priviledge of Parliament and the Antiquity of the House of Commons asserted occasioned by an Information in the Kings Bench by the Attorney-General against the then Speaker of the House of Commons As also A Discourse concerning the Ecclesiastical Jurisdiction in the Realm of England occasioned by the late High Commission in Ecclesiastical Causes in King James II. 3. A Defence of the late Lord Russel's Innocency Together with an Argument in the great Case concerning Elections of Members to Parliament between Sir Sam. Bernardiston Bar. Plaintiff and Sir Wil. Soames Sheriff of Suffolk Defendant in the Court of Kings Bench in an Action upon the Case and afterwards by Error sued in the Exchequer Chamber 4. The Lord Russel's Innocency further defended by way of Reply to an Answer Intituled The Magistracy and Government of England Vindicated These four writ by the Rt. Hon. Sir R. Atkyns Knight of the Bath and Lord Chief Baron of their Majesties Court of Exchequer 5. A New Declaration of the Confederate Princes and States against Lewis XIV King of France and Navar Deliver'd in a late Audience at Versailles July 5. 1689. 6. Politica Sacra Civilis or a Model of Civil and Ecclesiastical Government wherein besides the Positive Doctrine concerning the State and Church in General are debated the Principal Controversies of the Times concerning the Constitution of the State and Church of England By George Lawson Rector of More in Salop. 7. The Parsons Councellor with the Law of Tythes and Tything In two Books The fourth Edition with the Addition of a Table Written by Sir Simon Degge 8. The Gentleman's Jockey and Approved Farrier instructing in the Natures Causes and Cures of all Diseases incident to Horses The Eighth Edition Enlarged 9. Popery or the Principles and Positions approved by the Church of Rome dangerous to all And to Protestant Kings and Supreme Powers more especially pernicious By Thomas Lord Bishop of Lincoln 10. A Modest Vindication of the Protestants of Ireland in Answer to the Character of the Protestants of Ireland 11. Sir St. John Broderick's Vindication of himself from the Aspersions cast on him in a Pamphlet written by Sir Richard Buckley Entituled Proposals for sending back the Nobility and Gentry of Ireland 12. Animadversions on Sir R.B. Proposals for sending back the Nobility and Gentry of Ireland 13. The Justice of Parliament in Inflicting Penalties subsequent to Offences vindicated and the lawfulness of the present Government asserted
Lex Parliamentaria OR A TREATISE OF THE LAW and CUSTOM OF THE PARLIAMENTS OF England By G. P. Esq 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. 1. From an Original French Manuscript Translated into English 〈…〉 〈…〉 TO THE Most Supreme Court OF THE KINGDOM THE PARLIAMENT OF England The AUTHOR doth most humbly Dedicate this his small Treatise of the LAW and CUSTOM of PARLIAMENT THE PREFACE TO THE READER I Am very sensible that assoon as this Treatise is submitted to publick View 't will likewise meet with publick Censure and not a Few will be apt to start this Objection against it that it is only like an Old Piece in a New Dress These Things men will say have been done before the same Matter and much of the same Form are to be found in other Writers and this is but to obtrude upon the World 〈◊〉 vain Repetition of other mens Observations I must confess in part it is so and it must needs be so fo◠it is not to be expected that I shou'd presume to dictate Rules and Directions out of my own Fancy by which to govern or Influence Parliaments I must be beholding to Precedents and Records and tho' you shall find many of the same Notes scattered in my Lord Coke in Elsyng Hakewel Scobel and others yet I may adventure to say you shall no where meet them couched in so compendious and so useful a Method I have not only cull'd out of the before-mention'd and several other Authors what is proper and pertinent to this Design but I have gleaned from the Statutes Law-Books Reports and Histories whatsoever I met with in my inquisitive Re-searches beyond All that has been before placed in any Collection and which may be applicable to this Vndertaking All Members ought to be throughly skill'd in Parliamentary Affairs to know their own Laws and Customs their Powers and Priviledges that they may not at any time suffer Invasions to be made upon them by what plausible Pretences soever but as it is impossible for men of the most tenacious Faculties to keep all things constantly in their minds therefore this is to ease and refresh their Memories in case of any Forgetfulness and they may with a very little Trouble have always this in their Pockets which perhaps some may not be able without a great deal of Trouble to carry always in their Heads When he that is conversant in Study and Books cannot carry a Library about him he may easily recollect what is expedient for him from the Supplement of this Epitome Such as shall hereafter be promoted to that honourable Station of being Senators of the Kingdom will find it much more easie to receive short Information from this little Manual than to be obliged on every Occasion to consult the publick Records and turn over wearisome Volumes And they who do not expect Admission into a Parliament House will yet receive this as no unprofitable Diversion to observe and know the admirable method of Parliamentary Proceedings the Exactness and Decency of their Orders the Wisdom and Prudence of their Customs the Extent of their Powers and the Largeness of their Priviledges Wherefore without any Flattering or Arrogance to my self I shall make bold to tell you I am verily perswaded that what I have taken pains to collect from several Books and to digest into this small Compass for my own Convenience and Information will conduce to the general Satisfaction of all that read it which was one main Reason that induced me to publish it THE HEADS Of the several CHAPTERS Contained in this TREATISE CHAP. 1. THE Parliament Page 1 CHAP. 2. Power of Parliament Page 18 CHAP. 3. The House of Lords Page 41 CHAP. 4. Power of the House of Lords Page 53 CHAP. 5. House of Commons Page 61 CHAP. 6. Power of the House of Commons Page 66 CHAP. 7. Power of Parliament over their own Members Page 87 CHAP. 8. Elections of Members Page 104 CHAP. 9. Who may be Electors Page 113 CHAP. 10. Who may be Elected Page 115 CHAP. 11. Returns of Sheriffs and Amendments of Returns Page 125 CHAP. 12. Election of Speaker Page 130 CHAP. 13. Business of the Speaker Page 141 CHAP. 14. Orders to be observed in the House Page 148 CHAP. 15. Orders of the House Page 156 CHAP. 16. Passing of Bills Page 174. CHAP. 17. Concerning Committees Page 202 CHAP. 18. The Order and Power of Grand Committees Page 215 CHAP. 19. Concerning standing Committees Page 222 CHAP. 20. A Session of Parliament Page 229 CHAP. 21. The proper Laws and Customs of Parliament Page 235 CHAP. 22. Priviledge of Parliament Page 257 The Appendix Page 299 The NAMES of the AUTHORS quoted in this TREATISE ATkyns Sir Robert 's Argument of the Power and Jurisdiction of Parliament Arcana Parliamentaria Brook Brownlow Coke on Littleton Coke 's fourth Institute Coke 's Twelfth Report Crompton 's Jurisdiction c. Dyer Elsyng d'Ewes Sir Simond 's Journal Fortescue Hakewel Herbert 's Henry the Eighth Hollis Lord. Holling shead Hunt Hutton Kelwey Knyghton de Eventibus Angliae Leonard 's Reports Modus tenendi Parliamentum Moor 's Reports Nalson 's Collections Petyt 's Ancient Rights c. Petyt 's Miscellanea Parliamentaria Plowden Rushworth 's Collections Scobel Selden 's Judicature Smyth Sir Thomas Common-wealth of England Speed 's History Townsend 's Collections Turner 's Bankers Case Vaughan 's Reports CHAP. I. The Parliament IT is called Parliamentum Co sup Littleton 110. because every Member of that Court shou'd parler le ment speak his mind Mr. Lambard in his Archion maintains Sir R. Atkyns Argument c. p. 18. That the Parliament was used in the Saxons time and then consisted of the King Lords and Commons as in the Time of King Ina Ann. 712. Mr. Prinn says Mr. Prynn's Truth triumphing over Falshood Antiquity over Novelty fol. 69. Pttyt's Ancient Right c. p. 68. by all the ancient Precedents before the Conquest it is most apparent That all our pristine Synods and Councils were nought else but Parliaments That our Kings Nobles Senators Aldermen Wisemen Knights and Commons were usually present and voting in them as Members and Judges They had many Expressions and Phrases as Id. 98 99. Omnes Regni Nobiles Totius Regni Magnates Proceres Fideles Regni Vniversitas Regni Clerus Populus Communitas Regni Discretio totius Regni Generale Concilium Regni and many more varying in several Ages till at last they fixed on the word Parliamentum Vide many Records and Precedents touching this Matter in the Appendix to Petyt's Miscellanea Parliamentaria This Court is the highest Court of England Crompton's Juris p. 1. in which the Prince himself sits in Person and comes there at the Beginning of the Parliament and at the End and at any other Time when he pleaseth during the Parliament The Judges
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 3 Car. 1. 1626. Rash Coll. 365. Resolved upon the Question 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 is a Breach of Priviledge 2 Nalson 380. Ever since the Conquest the arch-Arch-Bishops Hakewel 84. Vide Kelwey 184. Vide Lord Hollis's Letter Vide Lord Hollis's Remains Vid. contra Hunt's Argument for the Bishops Right c. Vid. Grand Question concerning Bishops Right per. totum 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 c. When a Question is had of the Attainder of any Peer Hakewel 84. Vid. contra Hunt ut suprà per tot Vid. Grand Question concerning Bishops Right c. per totum Selden of Judicature c. p. 150. or other in Parliament the arch-Arch-Bishops 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 having first made Protestation saving their Right to be present in Parliament * Vid. there the Protestation of the Bishops for ever Id. 151. 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 Clergy-men 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 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. 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 Earls and Dukes are not sworn In Judgments on Delinquents in Parliament Id. 132. the Commons might accusare petere Judicium the King assentire and the Lords only did judicare The King's Assent ought to be to Capital Judgments Id. 141. Vid. id 144 147 148 154 158. 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 to me that the King's Assent is necessarily required in Capital Causes and Judgments If a Peer be committed to Prison the Gentleman Vsher 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. n. 10. 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 Arcana Parl. 70. 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 Id. 71. The Duke of Somerset in the Time of Ed. 6. was tried for Felony and Treason by his Peers upon an Indictment 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 Honor and are not charged but upon their Honors 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 lye 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. Statute 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. 98. he ought to appeear in his proper Person and not by Attorny unless he has a special Writ of Chancery CHAP. IV. Power of the House of Lords A Peer of the Realm being Indicted of Treason 4 Inst 23. or Felony 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 Many notable Judgments by the Lords Ibid. Vide Rush Coll. passim Vid. Nalson at the Prosecution of the Commons and in later Times Error serra sue in Parliament Vid. Crompton 18. b. Parliament poet prendre Recognizance Brook 137. Error Error shall be sued in Parliament and the Parliament may take 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 Justitia have a Writ of Error directed to the Chief Justice of the
King's Bench for removing of the Record in praesens Parliamentum c. When one sueth in Parliament to Reverse a Judgment in the King's Bench Id. 22. he sheweth in his Bill which he exhibiteth to the Parliament some Error or Errors whereupon he prayeth a Scire Facias The Proceeding upon the Writ of Error is only before the Lords in the Vpper House Id. Secundùm Legem Consuetudinem Parliamenti The Case between Smith and Busby in a Writ of Error 2 Nalson 716. 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. Resolved by the House Nemine contradicente 2 Nalson 625. That it belongs to the House of Peers by the ancient 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 2 Nalson 381. 1641. 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 Fancis Michel for Projectors Upon Complaints and Accusations of the Commons Selden's Judicature c 6 7. the Lords may proceed in Judgment against the Delinquents of what Degree soever and what Nature soever the Offence be For where the Commons complain the Lords do not assume to themselves Trial at Common Law Neither do the Lords at the Trial of a Common Impeachment by the Commons decedere de June suo for the Commons are then instead of a Jury And the Parties Answer and Examination of Witnesses are to be in their Presence or they to have Copies thereof and the Judgment is not to be given but upon their Demand which is instead of a Verdict so the Lords do only judge not try the Delinquent 28 Hen. 6. Tho' the Lords refused to commit the Duke of Suffolk upon the Commons complaint of him of a common Fame of Treason Id. 98. yet when they accused him of particular Treason he was Committed and brought Prisoner to his Answer But in Cases of Misdemeanors it is otherwise then the Party Accused whether Lord or Commoner answers as a Freeman The Lord within his Place Ibid. the Commoner at the Bar and they are not committed till Judgment unless upon the Answer of a Commoner the Lords find Cause to commit him till he find Sureties to attend c. lest he should fly Prout Jo. Cavendish upon the Lord Chancellor's demand of Justice against him for his false Accusation was Committed after his Answer until he put in Bail Anno 7 Rich. 2. and before Judgment In Cases of Misdemeanors only Id. 105. the Party accused was never deny'd Counsel If the Commons do only complain Id. 163. and do neither impeach the Party in Writing nor by Word of Mouth in open House nor demand Trial to be in their Presence in these Cases it is in the Election of the Lords whether the Commons shall be present or not In Complaints of Extortion Id. 173. and Oppression the Lords awarded Satisfaction to the Parties wronged which sometime was certain sometime general but alway secundùm non ultra Legem It appeareth plainly by many Precedents Id 176 177. That all Judgments for Life and Death are to be render'd by the Steward of England or by the Steward of the King's House and this is the Reason why at every Parliament the King makes a Lord Steward of his House tho' he hath none out of Parliament And at such Arraignment the Steward is to sit in the Chancellor's Place and all Judgments for Misdemeanors by the Chancellor or by him who supplies the Chancellor's Place In Case of Recovery of Damages Id. 187. or Restitution the Parties are to have their Remedy the Parliament being ended in the Chancery and not in any other inferior Court at the Common Law But the Lords in Parliament may direct how it shall be levied The Judges who are but Assistants to the Vpper House have leave from the Lord Chancellor or Keeper to sit covered in the House Sir Simon d'Ewes Jour 527. Col. 2. but are alway uncovered at a Committee 3 Car. 1. The Sentence of the Lords Spiritual and Temporal Petyt 's Miscel Parliament 212 213. pronounced by the Lord Keeper against Ensign Henry Reynde for ignominious Speeches uttered by him against the Lord Say and Seal and for his Contempt of the High Court of Parliament was thus 1. That he never bear Arms hereafter but be accounted unworthy to be a Soldier 2. To be imprisoned during Pleasure 3. To stand under the Pillory with Papers on his Head shewing his Offence at Cheapside London and at Banbury 4. To be fined at 200 l. to the King 5 To ask Forgiveness here of all the Lords of Parliament in general and of the Lord Say and his Son both here and at Banbury The Court of Star-Chamber ordered by the Lords to put the said Sentence in Execution Id. 213. out of Time of Parliament CHAP. V. House of Commons THE House of Commons was originally Sir R. Atkyns Argument c. p. 13. and from the first Constitution of the Nation the Representative of one of the Three Estates of the Realm and a part of the Parliament It is affirmed by Mr. Lambard Lambard 's Archeion 257 258. That Burgesses were chosen to the Parliament before the Conquest The ancient Towns call'd Boroughs Littleton Sect. 164. are the most ancient Towns that are in England for the Towns that now are Cities or Counties in old time were Boroughs and call'd Boroughs for that of such old Towns came the Burgesses to the Parliaments Knights of the Shire to serve in Parliament Sir Rob. Atkyns 18. and the paying Wages to them for their Service has been Time out of Mind and did not begin 49 Hen. 3. for that is within Time of Memory in a Legal Sense The House of Commons Id. 34. as a Member of the High Court of Parliament have been as ancient as the Nation it self and may in the Sense of Julius Caesar be accounted among the Aborigenes and that they have had a perpetual Being to speak in the Language of the Law a Tempore cujus Contraria memoria Hominum non existit and that they are therefore capable by Law together with the rest of the Three Estates in Parliament to prescribe and claim a share in all Parliamentary Powers and Priviledges I do not mean separately but in conjunction with those other Estates which they could not otherwise legally have done Petyt's Preface to the ancient Rights of the Commons c. p. 3. if their Original and
Commencement could have been shewn During the British Saxon and Norman Governments the Freemen or Commons of England as now call'd and distinguish'd from the great Lords were pars essentialis constituens and essential and constituent Part of the Wittena Gemot Commune Concilium Baronagium Angliae or Parliament in those Ages It is apparent and past all Contradiction Id. 12. That the Commons in the Times of the Britons Saxons and Picts were an essential Part of the Legislative Power in making and ordaining Laws by which themselves and their Posterity were to be govern'd and that the Law was then the golden Metwand and Rule which measured out and allowed the Prerogative of the Prince and Liberty of the Subject and when obstructed or deny'd to either made the Kingdom deformed and leprous I may with good Reason and Warranty conclude Id. 125. that our Ancestors the Commons of England the Knights Gentlemen Freeholders Citizens and Burgesses of a great and mighty Nation were very far from being in former Times such Vassals and Slaves or so abject poor and inconsiderable as the absurd and malicious Ignorance and Falsities of late Writers have been pleased to make and represent them especially the Author of the Grand Freeholders Inquest and Mr. James Howel as if they were only Beasts of Carriage and Burthen ordain'd to be tax'd and talliated and have their Lives Estates and Liberties given away and disposed of without their own Assents The Book of the Clerk of the House of Commons is a Record 4 Inst 23. as it is affirmed by Act of Parliament 6 Hen. 8. c. 16. If the Commons do only Accuse by any way of Complaint whatsoever Selden's Judicature c. 14. and do not declare in Special against the Party accused then the Suit is the King 's and the Party is to be Arraigned or otherwise proceeded against by Commandment Ex parte Domini Regis In the Lower House sit the Speaker and the Knights Citizens Cromptona b. 4 Inst 1. Burgesses and Barons of the Cinque-Ports who represent the Body of the whole Commonalty of England All Persons and Commonalties St. 5 Rich. 2. c. 4. Rast 140. which shall be summon'd to Parliament shall come as has been used and accustom'd of ancient Time and he that shall not come having no reasonable Excuse shall be amerced and otherwise punish'd as of ancient Time has been used CHAP. VI. Power of the House of Commons THE House of Commons is a House of Information and Presentment Rush Coll. 217. Vol. 1. but not a House of Definitive Judgment 1 Car. 1. Rushw ib. 1625. Resolved That common Fame is a good Ground of Proceeding for this House either by Enquiry or Presenting the Complaint if the House find cause to the King or Lords 26 Jan. 28 Hen 6. Selden's Judicature p 29. Vid. id 38. The Commons required the Duke of Suffolk might be committed to Ward for that the General Fame went of him c. The Lords on Consultation with the Justices thought the same to be no good Cause of Commitment unless some special Matters were objected against him It is certain and not to be deny'd Petyt's Miscell Pref. c. p. 5. That in elder Time the People or Free-men had a great Share in the Publick Council or Government For Dion Cassius or Xiphiline out of him in the Life of Severus assures us Apud hos i.e. Britannos Populus magnâ ex Parte Principatum tenet It was not in the Power of all the Tenants in Capite in England Id. 47 48. tho' with the King's Consent to bind and oblige others or to make or alter a Law sine Assensu Communitatis Regni who had Votum consultivum decisivum an Act of Authority and Jurisdiction as well in assenting to Spiritual Laws as Temporal as may appear for an Instance in their Declaration or Protestation to Edward the Third in Parliament which concludes thus For they will not be obliged by any Statute or Ordinance made without their Assent Rush Coll. 690. A Member of Parliament may charge any great Officer of State with any particular Offence If any Lord of Parliament Spiritual or Temporal 4 Inst 24. have committed any Oppression Bribery Extortion or the like the House of Commons being the general Inquisitors of the Realm coming out of all Parts thereof may examine the same and if they find by the Vote of the House the Charge to be true then they transmit the same to the Lords with the Witnesses and the Proofs 1 Jac. 1. Petyt's Miscel Parl 64 1603. The Bishop of Bristol publishing a Book tending to make division and strife wrong and dishonour both to the lower House and the Lords themselves was complain'd of by the Commons to the Lords and he made his Recantation 1. That he had erred 2. That he was sorry for it 3. If it were to do again he would not do it 4. But protested it was done of Ignorance and not of Malice 7 Jac. 1. 1609. Vide Rush Hist Coll. 4 Car. Dr. Cowel writ a Book perniciously asserting certain Heads to the Destruction of Parliaments and the Fundamental Laws and Government of the Kingdom and was complained of by the Commons to the Lords who resolved to Censure his Errors and Boldness Ibid. And afterwards the Book was burnt by Proclamation Vide Dr. Manwaring's Case Rush Coll. Nalson Vide Petyt's Miscell Part. 74. Vide Dr. Montague's Case in Rushworth Nalson Petyt's Miscell Part. 82. 4 Junij 19 Jac. 1. Petyt's Miscell Parl. 120. The Commons House of Parliament this day adjudged Randolph Davenport Esq for his Offence in Mis-informing the House in a Cause wherein he was produced as a Witness to be committed Prisoner to the Tower for the space of one whole Month and then to be discharged paying his Fees 19 Jac. 1. Id. 160. Ordered by the Commons House of Parliament That the Serjeant at Arms attending this House shall attach the Body of John Churchill one of the Deputy-Registers of the Chancery and him shall take into his Custody and bring him to this House on Monday morning next at Eight of the Clock and the said Serjeant is in the mean time to keep him so as none be suffer'd to speak with him but in the hearing of the Serjeant Vide ad hoc Rush Collect. passim Vide Nalson's 2 Volumes Vide Selden's Judicature c. Vide Sir Robert Atkyns's Argument c. Vide Petyt's Preface to Miscell Parliamentaria Thomas Long gave the Mayor of Westbury four pounds to be elected Burgess 4 Inst 23. Vide Sir d'Ewes Jour 182. who thereupon was elected This Matter was examin'd and adjudged in the House of Commons secundùm Legem Consuetudinem Parliamenti and the Mayor fined and imprisoned and long removed for this corrupt Dealing was to poison the very Fountain it self Arthur Hall a Member of the House of Commons Ibid.
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.
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 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 it self 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 Id. 31. Vid. Towns Coll. 205. he is to be heard out 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 Hakewel 33. ought not to be again brought into Dispute 27 Martij 1604. Ibid. Sir Edward Coke Attorny General and Dr. Hone bring a Message from the Lords desiring a Conference about the Case of Sir Francis Goodwyn Vide this Argument at large in the Appendix Upon this Message it was argued That now the Judgment having pass't 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 Conserence 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 that would speak against the Bill 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 fall into Debate thereof such Member is to withdraw The Members of the lower House came to the Lords Towns Coll. 311. upon a Conference 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 Towns 95. Vide Sir S. d'Ewes Jour 585. 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 But when any Answer is to be deliver'd by the Lord Keeper in the name and behalf of the 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 K. James his Objection in Sir Francis Goodwyn's Case 3 Apr. 1604. Memorirls 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 not be by us revoked we might without any Imputation refuse to concur CHAP. XVI Passing of Bills 43 Eliz. 1601. Towns Coll. 209. WHile there were divers Disputes about a Bill Mr. Fleming the Queens Solicitor took the Bill to look a word in it after he had done and laid it on the Board one stood up and said Mr. Speaker after a Bill is ingrossed you ought to hold it in your hand and let no man look into it which was confessed by all And so the Speaker took it When a Bill is read Cook 12.115 the Speaker doth open the Parts of the Bill so that each Member of the House may understand the Intention of each Part of the Bill Such Bills Hakewel 134. as being first passed in one House are sent unto the other are alway sent in Parchment fairly ingrossed Publick Bills are in due course to be preferred in reading and passing before private Ibid. Co. 12.116 and of Publick such as concern the Service of God and Good of the Church Secondly such as concern the Commonwealth in which are included such as touch the Person Revenue or Houshold of the King Queen c. and they ought especially to be preferred in passing Lastly private Bills are to be offer'd to be read and passed in such Order as they were preferred Towns Coll. 270. And they that carry them to give some brief Commendation of them Any Member of the House may offer a Bill for publick Good Scobel 40. except it be for imposing a Tax which is not to be done but by Order of the House first had If any Member desire that an Act made and in force may be repealed or altered he is first to move the House in it and have their Resolution before any Bill to that purpose may be offer'd and if upon the Reasons shew'd for repealing or altering such Law the House shall think it fit they do usually appoint one or more of the Members to bring in a Bill for that purpose All men of Law know Towns Coll. 238. that a Bill which is only expository to expound the
Prelates Seigneurs Commons en cest Parliament assembles au nom de toutes vous autres Subjets remercient tres-humblement vostre Majestie Sir Simon d'Ewes Jour 467. Col. 2. prient à Dieu que il vous donne en sante bon vie longue The Prelates Lords and Commons in this Parliament assembled in the Name of all other your Subjects do most humbly thank your Majesty and do pray God to give you Health and a good and long Life A private or particular Act is always filed Sir R. Atkin's Argument 57. Arc Parl. 45. but never enrolled Every Bill that passeth the Parliament shall have Relation to the first day of the Parliament tho' it come in at the end of the Parliament unless a Time be specially appointed by the Statute when it shall commence If a Bill be admitted to be read Scobel 41. it is to be presented fairly written without any razure or interlineation together with a Breviat of the Heads of the Bill and unless it be so tender'd the Speaker may refuse it Until the Bill be open'd Id. 42. no man may speak to it An Act was read Towns Coll. 187. to which no man offer'd to speak whereupon Mr. Speaker stood up and said That if no man speak it must be ingrossed It is the usual Rule of the Law Towns Coll. 134. That where the Numbers of the Affirmative and Negative are equal Semper presumetur pro negante The Negatives by Custom are to carry it When Votes are digested into a Bill Scobel 45. and that comes to be read or passed it is lawful to Debate or Argue against all or any part thereof to alter or reject it because Votes in order to a Bill are no further binding but that the Bill is to be presented containing those Votes and because the Bill gives occasion of a more large Debate and being to pass into a Law every Member hath Liberty to offer his Reasons against it as well as give his Vote as often as it comes to a Question When a Bill has been read the second time Ibid. and open'd any Member may move to have it amended but must speak but once to it and therefore must take all his Exceptions to it and every part of it at one time for in the Debate of a Bill no man may speak but once the same day except the Bill be read more than once that day and then he may speak as often as it is read 23 Junij 1604. It was agreed for a Rule Id. 58. If a Bill be continued in Speech from day to day one may not speak twice to the Matter of the same Bill CHAP. XVII Concerning Committees COmmittees are such Sir Tho. Smyth 's Common-wealth 75. as either the Lords in the higher House or Burgesses in the lower House do choose to frame the Laws upon such Bills as are agreed upon and afterward to be ratified by the same Houses The proceeding in a Committee is more honourable and advantagious to the King Rush Coll. 557. and the House for that way leads most to the Truth and it is a more open way and where every man may add his Reason and make Answer upon the hearing of other mens Reasons and Arguments For Referring a Bill to Committees Sir Simon d'Ewes Jour 186. it is chiefly for Amendment or Alteration thereof after it hath been penned and put into the House by some one or more private men June 1641. In the Afternoon 2 Nalson 319. it being a considerable time before there were forty Members to make a House Ordered That so soon as the House sits and that the Serjeant comes to any Committee then sitting to signisie to them that the House is sitting that the Chair-man shalt immediately come away to attend the Service of the House 35 Eliz. 1592. Towns Coll. 61. Sir Simon d'Ewes Journ 476. Col. 1. Id. 189. It was held to be against the Order of the House That a Bill should be committed before it was read 43 Eliz. 1601. By Order of the House agreed When a Bill is return'd from Commitment the words must be twice read which are amended before the ingrossing thereof Eodem tempore Id. 190. By Order of the House it was agreed upon That a Committee once made and agreed upon there shall not hereafter be more Committees joyn'd unto them for the same Bill but for any other there may Eodem Id. 198. Vid. Sir S. d'Ewes Jour 630. Col. 1. Sir Walter Raleigh speaking at a Committee Sir Edward Hobby told him He shou'd speak standing that the House might hear him to which Sir Walter Rawleigh reply'd That being a Committee he might speak sitting or standing Eodem Id. 208. Vid. Sir S. d'Ewes Journ 634. Col. 2. It is a Rule in the House That they who have given their Voice against the Body of a Bill cannot be Committees And it was said by Mr. Wiseman That by committing of a Bill the House allow'd of the Body thereof tho' they disallow'd of some Imperfectious in the same and therefore committed it to some chosen men in trust to reform and amend any thing therein which they found imperfect And it is presumed That he who will give his No to the committing of a Bill at the Commitment will be wholly against the Bill and therefore the House allowing of this Bill to be committed are in my Opinion to disallow any that will be against the Body of the Bill for being Committees And so Resolved upon the Question Eodem Towns 208. Sir Simon d'Ewes Jour 635. Col. 1. Resolved upon the Question If any Committee speak against a Bill at the Commitment he may speak again at the ingrossing thereof in the House and have his free Voice 11 Nov. 1601. Ordered Memorials 60 61. Vid. Towns Coll. That any Member of this House that hath been or shall be a Committee in any Bill may afterwards speak or argue negatively to any such Bill without Impeachment or Imputation of Breach of former Order Sometimes the House upon Debate doth pass some Votes to be the Heads of a Bill Scobel 44. or refer it to a Committee of the whole House to prepare such Heads If the Exceptions to a Bill be such Id. 46. that it may not be amended at the Table then the Question is for committing the Bill But no Bill is to be committed without some Exceptions taken to it In the House of Commons Towns Coll. 138. as well as in the upper House after any Bill is committed upon the second Reading it may be deliver'd indifferently to any of the said Committees No Proviso or Clauses are to be tender'd to a Bill upon a second Reading Scobel 46. because if it be committed it is proper to offer them to the Committee without troubling the House as 16 Jun. 1604. It was moved That sundry Proviso's then tender'd be offer'd to the
any particular man ought not to be regarded Cest Court de Parliament est Ibid. Crompt 7. b. pluis haut Court ad plusors Priviledges que ascun auter Court del Realm pur que semble que en chescun Case sans ascun Exception chescun Burgess est privilege quant l'Arrest n'est forsque al Suit d'un Subject The Court of Parliament is the highest Court and has more Priviledges than any Court of the Realm for which it seems that in every Case without any Exception every Burgess is priviledged as to Arrest only at the Suit of the Subject Coment que le Parliament erra en le grant del Brief de Privilege Id. 61. uncore ceo n'est reversible en auter Court Tho' the Parliament do err in the Grant of a Writ of Priviledge yet it is not reversible in another Court Fuit dit per Dyer Moor f. 57. n. 163. que si home soit condemne en Debt ou Trespass est eslieu un des Burgesses ou Chivalers del Parliament puis soit prise en Exeoution il ne poet aver le privilege del Parliament issint fuit tenus per les Sages del Ley en le Case d'un Ferres en temps le Roy H. 8. coment que le privilege à ceo temps fuit à luy allowe Crompton's Jur. p 7 8 9 10 11. 34 H. 8. ceo fuit minus just It was said by Dyer That if a Man be condemned in Debt or Trespass and is chosen one of the Burgesses or Knights of Parliament and afterwards is taken in Execution he cannot have the Priviledge of Parliament and so it was held by the Sages of the Law in the Case of one Ferrers in the time of King Henry the Eighth Petyt's Miscel Parl. p. 1. c. and tho' the Priviledge at that time was allowed him yet it was unjust Hill Stukely les Viscounts de Londres fueront commit al Tower pur lour Contemts Dyer 61. pl. 28. pur ceo que ils ne voil lesser George Ferrers que fuit arrest sur un Execution d'aler alarge quant les Serjeants del Arms vient pur luy sans ascun Brief Hill and Stukely the Sheriffs of London were committed to the Tower for their Contempts for that they would not suffer George Ferrers who was Arrested upon an Execution to go at large when the Serjeant at Arms came for him without any Writ Le lower Meson del Parliament agree Fitzherberts case Moor so 340 n 461. que entant que un fuit arrest devant que il fuit eslie Burgess que il ne doit aver le privilege del Meson The lower House of Parliament agreed that in regard one was arrested before he was chosen Burgess that he ought not to have the Priviledge of the House Vide Fitz-Geralds Case Anno 1640. in Ireland Vide 39 Hen. 6. Walter Clerks Case 5 Hen. 4. Richard Chidder 38 Hen. 8. Tyneman's Case 43 Eliz. Belgrave's Case 39 Hen. 6. Ferrer's Case in Holinshead f. 1584. Debt upon an Obligation Brownl 91. Jackson versus Kirton whereof the Condition was That if A. would render himself to an Arrest in such a place c. A. pleads priviledge of Parliament and that being Servant to such a Member he could not render himself to be arrested Upon Demurrer the Opinion of the Court was for the Plaintiff for A. might render himself and let it be at their Peril if they will arrest him Magister Militiae Templi petit 4 Inst 24. quòd distringat Catalla unius de Concilio tempore Parliamenti pro Reditu unius Domûs in London Rex respondet non videtur honestum quòd illi de Concilio suo distringantur Tempore Parliamenti sed alio Tempore c. Bogo de Clare Ibid. Towns Coll. 255. Sir Simon d'Ewes Jour 655. Col. 1 says he was fined 20000 Marks and the Prior of Trinity for serving a Citation on the Earl of Cornwal in the Time of the Parliament committed to the Tower and Bogo at whose Procurement it was done fined in 2000 Marks to the King and a thousand pounds to be paid to the Earl 4 Inst 24. And yet the serving of the said Citation did not arrest or restain his Body and the same Priviledge holdeth in Case of Subpoena or other Process out of any Court of Equity Rex mandavit Justiciariis suis ad Assisas Ibid. c. quod supersedeant captioni eorundem ubi Comites Barones alii Summoniti ad Parliamentum Regis sunt Partes quamdiù dictum Parliamentum duraverit A Citation shall not be served on any Member Ibid. Vid. Sir S. d'Ewes Jour 435. Col. 1. nor Subpoena Divers Persons committed to Prison for serving a Citation on John de Thorsby Ibid. Clerk of the Parliament 22 Febr. 6 Ed. 6. Scobel 110 Vid. Sir S. d'Ewes Journ 249. Col. 2. Order'd If any Burgess require Priviledge for himself or his Servant upon Declaration thereof to the Speaker he shall have a Warrant sign'd by the Speaker to obtain the Writ 22 Martij 18 Jac. 1. Scobel 110 It was resolved That no Protection under any Mans hand of this House is good 29 Jan. 1557. Id. 89. 4 5 Ph. Mar. Thomas Ennys Burgess for the Borough of Thusk complained that a Subpoena was deliver'd him to appear in Chancery and required the Priviledge of the House whereupon Sir Clement Higham and Mr. Recorder of London were sent to the Lord Chancellor to revoke the Process 27 Eliz. Id. 90. Vid. Towns Coll. 213. Sir Simon d'Ewes Jour 438. Col. 1 2. One Kyrl having caus'd a Subpoena out of the Star-Chamber to be served on a Member of the House of Commons and for want of Appearance taken out an Attachment and inforced the Payment of Money to discharge the same the said Kyrl was committed till he had paid Costs to the Party served and made a Submission to the House on his Knees at the Bar. 15 Maij 1604. Scobel 90. The Serjeant was sent to Attach the Body of one who served a Subpoena on the Person of Sir Robert Needham a Member 7 Maij 1607. Ibid. The Serjeant was sent for Edward Throgmorton for serving a Subpoena on Sir Oliver Cromwel 14 Maij 19 Jac. 1. Id. 91. Upon Complaint of the Service of a Subpoena on a Member of this House Sir Edward Coke vouched a Precedent 10 Ed. 3. That a Subpoena being served on the Clerk of this House the Party was committed for breaking the Priviledge of this House 4 Maij 1607. Ibid. A Subpoena out of the Exchequer being served on Sir R. Pawlet a Member the House granted Priviledge and order'd the Serjeant by his Mace to attach the Parties delinquent and to bring them to the Bar to receive the judgment of the House And the next day Mr. Speaker writ a Letter to the Lord Chief Baron That no further Process
do issue against the said Sir R. Pawlet 3 Dec. 19 Jac. 1. Ibid. Upon Occasion of a Subpoena served on Mr. Brereton it was agreed by the whole House That the serving of a Subpoena upon a Member of this House knowing him to be a Parliament-man is a breach of Priviledge and Napper who served the Subpoena was committed 39 Eliz. Towns Coll. 109. Vide Sir S. d'Ewes 546. Col. 2. Mr. Combs and Mr. Henry Powle Members of this House being served with a Subpoena ad testificandum by Mrs. Ann Wye the Serjeant of the House was order'd to bring in the said Ann to appear in this House to answer the Contempt 43 Eliz. 1601. Id. 212 213 214. A Subpoena ad testisicandum served on Mr. Johnson and other Members Agreed That the Serjeant be sent to arrest all those to appear that had procured the Subpoena to answer their Contempt with all speed 44 Eliz. 1601. Id. 246. Sir Simon d'Ewes Jour 651. Col. 1. Sir Edmond Morgan a Member of this House was served with a Subpoena at the Suit of one Lemney who was sent for by the Serjeant Id. 257. And because Christopher Kennel who served it professed Ignorance he was only adjudged to three days Imprisonment in the Custody of the Serjeant and pay his Fees The same Order with William Mackerless Ibid. Vid. Sir S. d'Ewes Jour 656. Col. 1 2. who served a Subpoena on Mr. Pemberton a Member at the Suit of one Mackerness 44 Eliz. 1601. Sir Simon d'Ewes Jour 655. Col. 1 2. Mr. Philips a Member of the House was served with a Privy Seal out of the Court of Wards by one Thomas Dean Servant to Mrs. Chamberlain a Widow The House ordered that she and her Servant shou'd be sent for by the Serjeant Vide plus de his Sir Simon d'Ewes Journal 637. alibi passim 33 Eliz. The Sheriffs of London were fined by the Commons Scobel 92. and sent to the Tower for not delivering a Burgess arrested for Debt sitting the Parliament 6 Apr. 1593. Id. 92. Vide Sir S. d'Ewes Journ 519. The Serjeant at Mace who arrested Mr. Neal a Member upon an Execution and Weblyn at whose Suit he was arrested were brought to the Bar and both committed Prisoners to the Tower and the Serjeant at Arms attending this House was order'd to deliver them over to the Lieutenant of the Tower 13 Maij 1607. Ibid. Nicholas Allen an Attorney and Palmer at whose Suit Mr. Martin a Member was Out-law'd order'd to be sent for by the Serjeant and brought to the Bar to answer their Contempt An Attachment for Contempt being taken out of Chancery against Mr. Belingham a Member Ibid. the House order'd to have Priviledge and a Letter to be sent to Mr. Evelyn one of the six Clerks to stay the Suit Upon a Writ directed to the Sheriff to levy Twenty pounds Issues upon Sir Robert Oxenbridge for Non-appearance it was order'd Id. 93. That if the Issues were not discharged before that night the Parties delinquent to be brought next Day to the Bar by the Serjeant 14 Maij 1576. Ibid. Sir Edward Montague a Member of the House was warned to attend a Trial in London which was to be had against him and was by Order of the House priviledged and the Party that gave the Warning was summon'd to appear at the Bar next Morning 21 Febr. 1588. Id. 94. Vide Sir S. d'Ewes Jour 436. Col. 1 2. Order'd That those Members of the House who have Occasion of Priviledge Writs of Nisi priùs being brought against them do declare their Case to the Speaker who thereupon shall direct the Warrant of this House to the Lord Chancellor for awarding Writs of Supersedeas 3 Martij 18 Jac. 1. Ibid. 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 appear'd 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 enter'd in the Journal-Book and that it belongeth to the Clerk to write the same It was thereupon Resolved That the former Course of writing Letters to the Justices of Assize shou'd be held according to former Precedents 10 Junij 1607. Id. 95. Sir Robert Johnson a Member of this House mov'd 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 Priviledge The Priviledge formerly granted was assirmed upon this Reason That no man shou'd have any Thing to withdraw him from his Service in the House The like 14 Febr. 18 Jac. 1. The Priviledge of the House is so much insisted on Ibid. that it hath been a Question Whether any Member of the House could consent that himself might be sued during the Session because the Priviledge is not so much the Persons as the Houses and therefore when any Person hath been brought to the Bar for any Offence of this Nature the Speaker hath usually charged the Person in the Name of the whole House as a Breach of the Priviledge of the House 3 Junij 1607. Ibid. 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 shou'd give leave for a Breach of Priviledge and it was resolved The House might give leave 7 Maij 1607. Id. 96. Sir Thomas Bigg and Sir Thomas Love being return'd upon an Attaint in the Kings Bench it being moved that in this Case they ought to have Priviledge it was so order'd and the Serjeant sent with his Mace to deliver the Pleasure of the House to the Secondary the Court sitting 22 Nov. 1597. Sir John Tracy a Member of this House Ibid. Vide Sir S. d'Ewes Jour 560. Col. 2. 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 Apr. 12 Jac. 1. Scobel 96. Sir William Bampfield was committed by the Lord Chancellor for a Contempt after the Writ of Summons but before the Election Order'd upon the Question That he shall have his Priviledge by Writ of Habeas Corpus 1 Jac. 1. Sess 2. Ibid. Sir John Peyton return'd Knight for Cambridge the last Session and since chosen Sheriff Resolved That he shall attend his Service here 28 Martij 1542. Herbert's Hen. 8.539 During this Session of Parliament some wrong was offer'd to their ancient Priviledges 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
Purveyors and also they sent to the King to inform him of it but before their Messengers came to the King two of the Privy Council scilicet Sir John Stanhope and Sir John Herbert were sent to the King by the Lower House to inform him that they had heard that his Grace was displeased with the House for their Sentence given for Sir Francis Goodwyn as well as in the Matter of the Sentence which was as they heard said to be against Law as also for the manner of their Proceedings being done hastily without Calling to it either Sir John Fortescue or his Council or without making his Grace acquainted with it And therefore they desired his Grace to understand the Truth of this Matter and also told him that They were ready with his good leave with their Speaker to attend his Majesty to give him Satisfaction about their Proceedings But the King told them they came too late and that it ought to have been done sooner calling the House Rash and Inconsiderate but yet notwithstanding he was content to hear their Speaker in the Morning at Eight of the Clock Upon this Message Committees were chosen to consider of the Things and Matters aforesaid which should be delivered to the King in Satisfaction of the Sentence given by the House which afterwards were consider'd of and digested by the Speaker and Committees in Three Points viz. 1. In the Reasons and Motives of their Resolutions 2. In the Presidents which were those I before have reported 3. And in Matters of Law Which were those Matters of Law also before reported by me with another Addition That in the time of Henry the Sixth the Speaker of the Parliament was Arrested in Execution at the Suit of the Duke of York and the Question being put to the Judges at that time Whether the Speaker ought to have his Priviledge It was said by them That they were Judges of the Law and not Judges of Parliament The Reasons and Motives were the free Election of the County the Request of one of the House the double Return of the Sheriff with a Commemoration of the length of the time since the Outlawries and with that the Payment of the Debts To this Report the King answered That he now ought to change his Tune which he used in his first Oration scilicet Thanksgiving to Grief and Reproof But he said That it was as necessary they should be Reproved as Congratulated and therefore he cited a parcel of Scriptures wherein God had so done with his People Israel nay with King David the People whom he tendered as the Apple of his Eye and David who was a Man after his own Heart He said That since Sir Francis Goodwyn was received by the House upon Reasons and Motives inducing the House thereunto so the King upon Reason too took consideration of Sir John Fortescue being one of the Council an ancient Counsellor a Counsellor not chosen by the King but by his Predecessors and so he found him and therefore he endeavoured to grace him being the only Man of them that had been disgraced the King protesting that he would not for any thing in the World offer unjustly any Disgrace to any Man in the Nation Besides he did not proceed Rashly as they had proceeded but upon Deliberation with double Advice as well with that of his Council as with that of his Judges And in his Answering the Presidents he said That those were his own proper Records and to use them against Himself was over-great Weenings But in Presidents he said that they ought to respect Times and Persons and therefore said That Henry the Sixth's Time was troublesome he himself Weak and Impotent And as for the other Presidents they were in the Time of a Woman which Sex was not capable of Mature Deliberation and so he said where Infants are Kings whom he called Minors For the Law part he referred to the Answer of his Judges who by the Lord Chief Justice gave these Resolutions they all unanimously agreeing in Them 1. That the King alone and not the Parliament House had to do with the Returns of the Members of Parliament for from him the Writs issued and to him the Sheriff is commanded to make his Returns but when a Man is Returned and Sworn the Parliament House hath to do with Him and the Sheriff ought to Return the Outlawry if he knew it before his Return 2. They Resolved clearly That an Outlawed Person cannot by the Law be a Member of the Parliament House but for that Cause the King might Refuse the Return of Him and for that Cause he was removable out of the House And therefore the Lord Chief Justice said That in the 35th of Henry the Sixth it was so Adjudged in Parliament which answers the Presidents vouched by the Commons of that time And also he said That in the first year of Henry the Seventh it was Adjudged in Parliament That Persons Outlawed or Attainted could not sit in Parliament without Restitution by Act of Parliament And he said That though the Books do not warrant his saying yet the Parliament Roll which he had seen does warrant it which any Man might see 3. They Resolved at the Instance of the King Himself That the Party could not be Discharged from the Outlawry without a Scire Facias sued against the Party Creditor Plaintiff in Debt and Justice Windam for that purpose recanting his former Opinion said That he upon perusing of his Books and by the Reasons of the Law was of Opinion with his Companions 4. As for the Statute of the 31th of the Queen concerning Proclamation to be made in the County c. they all Resolved as before times it had been Resolved That no Outlawry by that Statute was void until Judgment Declaring That here was no Proclamation issued forth to the County where the Party was Resiant at the time of the awarding of the Exigent 5. As for the Statute of 7 Hen. 4. which Enacts That the Indenture shall be only the Return of the Sheriff the Judges said That was true that such was the Statute and that that was his Return for so much but that Statute doth not restrain the Sheriff from Returning any other thing Material which Disables the Parties chosen 6. It was held That the Indorsment of the Writ comprehending the Matter of the Outlawry was Material and not a Nugation 7. And lastly They Resolved that by the Return of the Sheriff it appeared that Sir Francis Goodwyn was the same Person who was Outlawed 31 Eliz. by the Name of Francis Goodwyn Esquire and 39 Eliz. by the Name of Francis Goodwyn Gentleman and that by the Words of the Return scilicet Idem Franciscus Goodwyn Miles Vtlagatus existit c. And They also agreed That no Person Outlawed ought to have his Priviledge of the Parliament House and that all the Presidents vouched by the Commons were after the Parties were Members of the House and not before they were
That that Bill shall not be commmitted for it were to no end further to delay the proceeding of the Bill if there be no exception taken to the matter or form thereof but upon the second Reading and after the Speaker hath deliver'd the state thereof the House doth usually call for committing of the Bill and then if any man will speak against it either for Matter or Form he ought to be heard After the first man hath spoken Id. 144. the Speaker ought to rest a while expecting whether any other man will speak thereto so ought he likewise to do after every Speech ended when he perceiveth that the Debate is at an end he ought then to make the Question for the committing thereof in this sort As many as are of Opinion that this Bill shall be committed Id. 145. say Yea. And after the Affirmative Voice given As many as are of the contrary Opinion say No. And he ought by his Ear to judge which of the Voices is the greatest if that be doubtful the House ought to be divided If upon Division of the House it appear that the Numbers are equal Ibid. the Speaker hath the casting Voice upon all Questions If it appear that the Affirmative Voice be the greater Ibid. then ought he to put the House in mind touching the naming of Committees which is done thus Every one of the House that list may call upon the Name of any one of the House to be a Committee and the Clerk ought in his Journal to write under the Title of the Bill the Name of every one so called on at least of such whose Names in that Confusion he can distinctly hear and this he ought to do without Partiality either to those that name or to the Party named He that speaketh directly against the Body of the Bill Id. 146. Towns Coll. 208. may not be named a Committee for he that would totally destroy will not amend it When a convenient Number of Committees are named Hak. Ibid. then ought the Speaker to put the House in mind to name Time and Place when and where the Committees may meet which the Clerk ought likewise to enter into his Journal-Book and when the House is in silence he ought with a loud voice to read out of his Book the Committees Names and the Time and Place of the Commitment that the Committees may take Notice thereof After a Bill Ibid. which is sent from the Lords is twice read the Question ought to be for the Commitment if it be deny'd to be committed it ought to be read the third time and the next Question ought to be for the Passage and not for the Ingrossing as it is where the bill originally begins in the lower House for Bills which come from the Lords come always engrossed The Question for the Passage shou'd in ordinary Course be then made Hakewel 147. when the Bill is deny'd to be committed but not till the Bill be read the third time In the debating of Bills in the House Co. 12.116 no man may speak twice in one day unless sometime by way of Explication except the Bill be oftner read than once Hak. 148. and then a man may speak as often as the Bill is read Otherwise it is at Committees or when in the House the Debate ariseth upon some Motion concerning the Order of the House After the Debate is ended Id. 150. the Speaker ought to put the Question for Ingrossing If the greater Number of Voices be Ibid. that the Bill ought not to be ingrossed the Clerk ought to make an Entry in his Journal that the same was dash'd and so he ought likewise to note upon the back of the Bill and the day when If the Voice be to have it ingrossed it is the Office of the Clerk to do it It is always to be observed Ibid. That when the 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 So ought likewise such Bills as come from the Lords to have Titles endorsed upon the back of the Bill Ibid. 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 the third time for the Passage thereof For the most part the Speaker putteth not any one Bill to the Passage by it self alone but stayeth till there be divers Bills ready engrossed 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 shoul'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 Bills Ibid. the Clerk ought to make a Remembrance thereof in his Journal if otherwise then his Remembrance must be accordingly made 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 Brook Abr. f. Edit 119 n. 4. Soit baille aux Seigneurs 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 19 Dec. 1584. 27 Eliz. Sir Simon d'Ewes Jour 344. Col. 2. 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 Indorsments 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 observed 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 received the second time In the time of the Reading of a Bill Ibid. the House shou'd not be interrupted with any other Business and yet in 1 El. the House adjourn'd it self 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 in the House When a Bill is thrice read Id. 159. and pass't 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 as five or six Id. 175. or thereabouts 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 pleas'd to give special direction therein The Order which hath usually been observed in ranking of them Id. 176. is First to place them 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 they to be marshall'd 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 with a special Re-commendation thereof Ibid. 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 lyeth in order 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 Bills are sent down by Serjeants at Law or by two Doctors of the Civil Law being Masters of the Chancery and Attendants in the upper House accompanied sometimes with the Clerk of the Crown an Attendant there Id. 178. Bills of greater moment are usually sent down by some of the Judges Assistants there accompanied with some of the Masters of the Chancery who being admitted Entrance do come up close to the Table where the Clerk sits making three Congies and there acquainting the Speaker That the Lords have sent unto the House certain Bills doth read the Titles and deliver the Bills to the Speaker and so again departeth with three Congies when they are out of the House the Speaker holds the Bills in his hands and acquaints the House That the Lords by their Messengers have sent to the House certain Bills and then reading the Title of every Bill delivereth them to the Clerk to be safely kept and to be read when they shall be call'd for When Bills are thus pass't by both Houses Id. 179. upon three several Readings in either House they ought for their last Approbation to have the Royal Assent which is usually deferr'd till the last day of the Session The Royal Assent is given in this sort Id. 181. Vid. Towns Coll. 12 49. Vide Sir S. d'Ewes Jour 467. After some Solemnities ended the Clerk of the Crown readeth the Title of the Bills in such Order as they are in Consequence after the Title of every Bill is read the Clerk of the Parliament pronounceth the Royal Assent according to certain Instructions given him from his Majesty in that behalf To the Subsidy Bill Towns Coll. 49. because it is the meer Gift of the Subject the Quens Consent is not required for the passing it but as it is joyn'd with her thankful Acceptance nor to the Bill of Pardon because it is originally her free Gift no other Circumstance is required than that the thankful acceptance thereof by the Lords and Commons be likewise expressed it being but once read in either House before it comes at last to be thus expedited To all other Bills either private or publick the Queens express Consent tho' in different words is always requisite Febr. 9. 1597. 39 Eliz. Id. 127. Her Majesty gave her Royal Assent to twenty four publick Acts and nineteen private and refused forty eight which had pass't both Houses If it be a Publick Bill Towns 13. to which the King assenteth the Answer is Le Roy le veult The King wills it If a private Bill allow'd by the King the Answer is Soit fait come il est desire Be it done as is desired If a Publick Bill which the King forbears to allow Le Roy se avisera The King will consider To the Subsidy Bill Id. 12. Le Roy remercie ses loyaux Subjets accept lour Benevolence ainsi le veult The King thanks his loyal Subjects accepts their Benevolence and so wills it To the General Pardon Towns Coll. 13 49. Les