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
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
Merchants the Commons pray'd a general Inquiry might be made of the Residue whereof they complained Ibid. which the Lords granted When the Lord Nevil answered Id. 163. the Commons required that one Richard Love might be examined to prove that which the said Lord deny'd and so departed but two of the Commons remained and heard the Examinations and told the Lords That the said Richard had related otherwise to the Commons the day before which the said Richard deny'd Then all the Commons came and justify'd it again and thereupon the said Richard Love confessed it and on their Demands was committed In the 10 Rich. 2. Ibid. when the Commons had Impeached the Lord Chancellor they were present at his Answer and so often reply'd and enforced his Oath against him and required him to be committed and so he was before Judgment If the Commons do only complain Ibid. and do neither impeach the Party in Writing nor by Word of Mouth in open House nor demand Trial to be in their Presence in these Cases it is in the Election of the Lords Whether the Commons shall be present or not Issuing of Quo Warranto's out of the Court of King's Bench Nalson 588. Court of Exchequer or any Court against Boroughs that anciently or recently sent Burgesses to Parliament to shew cause why they sent Burgesses of Parliament and all the Proceedings thereupon are Coram non Judice illegal and void And the Right of sending Burgesses to the Parliament is questionable in Parliament only and the Occasioners Procurers and Judges in such Quo Warranto's and Proceedings are punishable as in Parliament shall be thought consonant to Law and Justice Where the Articles against the Delinquents are ex Parte Domini Regis Selden 's Judicature 118. there the Commons cannot reply nor demand Judgment for the Suit is the King 's and not theirs In Trewinnard's Case Id. 39. Dyer 60 61. The Priviledge of the Commons is termed the Priviledge of Parliament and the Judgment given in that Case by the House of Commons is there said to be The Judgment of the most High Court of Parliament Sir Robert Atkyns's Argument 35. which proves they are not without a Judicial Power The King cannot take notice of what is done in the Commons House Id. 53. or deliver'd to them but by the House it self and that is one of the Laws and Customs of Parliament In 31. Hen. 6. Id. 55. when the Commons requested the King and Lords to restore their Speaker to them c. The Judges being demanded of their Counsel therein after mature deliberation they answer'd It was not their part to judge of the Parliament which may judge of the Law The Reason Ibid. to judge of the Law signifies that they can judge whether a Law be good or not in order to approve it and to enact it or to repeal a Law In 1621. Ibid. the House of Commons made a Protestation against all Impeachments other than in the House for any thing there said or done It was said by Mr. Justice Crook Id. 58. Rush Coll. Vol. 1. f. 663. That regularly a Parliament-man cannot be compelled out of Parliament to answer Things done in Parliament in a Parliamentary Course If it be done in a Parliamentary Course what Occasion can there be to answer for it But who shall judge what is a Parliamentary Course but a Parliament not Judges of the Common Law for the Parliamentary Course differs from the Rules of the Common Law 27 Eliz. 1584. Sir Simon d'Ewes Jour 347. Col. 2. Ordered That the Serjeant of this House do forthwith go to the Common Pleas Bar and charge the Recorder then pleading there to make his present Repair unto this House for his Attendance Eodem Anno Id. 367. Col. 1. John Bland a Currier for making dishonourable Reflections on the House of Commons brought to the Bar and pardoned upon his Submission paying twenty shillings Fee to the Serjeant and taking the Oath of Supremacy Eodem An. Id. 368. Col. 1. A Warrant for a Writ of Priviledge awarded for setting at Liberty John Pepler Servant to Sir Philip Sidney a Member of this House now Prisoner for Debt in the Compter in London 28 29 Eliz. 1586. Id. 397. Col. 1. Resolved by the whole Body of the House That the discussing and adjudging of Differences about Elections only belonged to the said House That tho' the Lord Chancellor and Judges were competent Judges in their proper Courts yet they were not in Parliament 31 Eliz. 1588. Id 451. Col. 1. Thomas Drury committed to the Serjeant's Custody brought to the Bar and discharged paying his Fees for speaking dishonourably of the Proceedings of the House 23 Eliz. 1580. Id. 283. Col. 1. A Member of the House stood Indicted of Felony Adjudged That he ought to remain of the House till he were Convicted for it may be any man's case who is guiltless to be Accused and thereupon Indicted of Felony or a like Crime 18 Eliz. 1575. Petyt 's Miscel Parl. 16 18 Edward Smalley was upon the Question adjudged by the House to be Guilty of Contempt and abusing the House by fraudulent Practise of procuring himself to be Arrested upon Execution of his own Assent and Intention to be discharged as well of his Imprisonment as of the said Execution And Matthew Kirtleton adjudged Guilty of Confederacy with the said Smalley Whereupon they were both ordered to be committed to the Tower And the said Smalley to remain there for a Month and after till he gave sufficient Assurance for payment of a hundred pounds to the Creditor and forty shillings for the Serjeant's Fees 4 Ed. 6. Criketoft Id. 96. for the confederating in the Escape of one Floud committed to the Tower and afterwards discharged paying his Fees 1 Jac. 1. Bryan Tash Id. 98. a Yeoman of his Majesties Guard for keeping the Door of the Lobby of the Vpper House against several Members of the House of Commons brought to the Bar of the House and upon his Submission and Confession of his Fault dismissed paying the ordinary Fees to the Clerk and Serjeant 20 Jac. 1. Dr. Harris Id. 104. for misbehaving himself in preaching and otherwise with respect to Election of Members of Parliament call'd to the Bar as a Delinquent and admonish'd to confess his Fault there and in the Country and in the Pulpit of his Parish Church 3 Car. 1. Mr. Burgess a Minister Id. 104 105. for abusing his Function in the Duty of Catechising c. sent for by a Messenger committed to the Tower and upon humble Submission deliver'd In the same Parliament Id. 105 106. Sir William Wray Mr. Langton Mr. John Trelawny and Mr. Edward Trelawny Deputy Lieutenants for Cornwal for assuming to themselves a Power to make Knights of the Shire defaming such as stood to be chosen sending for the Train'd Bands menacing the Country c.