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-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-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
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.
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
was one of his Clerks and nearest Servants and that the Priviledge was now as warrantable as in the Time of sitting and pray'd the Court to take Notice of it During another Adjournment in March following Id 103. the Speaker warranted by the general Order at the desire of Sir Edmund Ludlow who was summon'd to attend the Execution of a Commission out of the Chancery writ a Letter to the Commissioners to excuse his Attendance and that he shou'd not be prejudiced by his Absence In May 1607 during an Adjournment Ibid. the Speaker directed a Letter to the Lord President and Council at York to stay Proceedings in a Suit against Talbot Bowes a Member of the House 29 Febr. 1575. One Williams Id. 113. for assaulting a Burgess of this House was upon Complaint sent for by the Serjeant and brought to the Bar and committed to the Serjeant's Ward 23 Apr. 1 Mar. One Monington Ibid. for striking William Johnson a Burgess was sent for and confessing it was committed to the Tower 28 Nov. 1601. Ibid. Towns Coll. 259. Vide Sir S. d'Ewes Jour 658. Col. 1. Complaint being made by Mr. Fleetwood a Member of the House That one Holland a Scrivener and one Brook his Servant had evil intreated and beaten the Servant of the said Mr. Fleetwood in his Presence they were both sent for by the Serjeant and brought to the Bar and for the said Offence committed for five days to the Serjeant And that they should pay double Fees 12 Febr. 18 Jac. 1. Memorials 114. Mr. Lovel a Member of the House inform'd That one Darryel threatned his Person that for a Speech spoken by him in the House he shou'd be sent to the Tower during the Parliament or presently after Darryel was sent for by the Serjeant to answer it to the House and upon Testimony of it he was committed to the Serjeant till Thursday following and then to acknowledge his Fault or be committed to the Tower 16 Jun. 1604. Ibid. Complaint being made of one Thomas Rogers a Currier dwelling in Coleman-street for abusing Sir John Savill in slanderous and unseemly terms upon his Proceedings at a Committee in the Bill touching Tanners c. he was sent for by the Serjeant at Arms to the Bar to answer his Offence 1 Car. 1. 4 Inst 48. The Sheriff for the County of Buckingham was chosen Knight for the County of Norfolk and return'd into the Chancery and having a Subpoena served upon him at the Suit of the Lady C. pendente Parliamento upon Motion he had the Priviledge of Parliament allow'd to him by the Judgment of the whole House of Commons 43 Eliz. 1601. Towns Coll. 195. Vide Sir S. d'Ewes Jour 629. Col. 1. This day a Page was brought to the Bar whom Sir Francis Hastings had caused to be committed for that as he went down the Stairs the Page offer'd to throng him But upon Sir Francis Hastings his Intreaty speaking very earnestly for him and upon the Pages submission upon his knees at the Bar he was discharged 44 Eliz. 1601. Towns Coll. 229. Vid. Sir S. d'Ewes Jour 643. Col. 2. Mr. William Morris Burgess for Beaumaris coming on his way to London his Man was arrested at Shrewsbury Order'd That the Bayliff and he that procured the Arrest and the Serjeant be sent for 44 Eliz. 1601. Towns Coll. 225 226. The Solicitor of one Langton a Burgess for Newton in Lancashire was arrested at the Suit of one Musket a Taylor and committed to the Compter Agreed by the House That both Musket and the Serjeant shou'd pay the Solicitor's Costs and Damages and be imprison'd three days in the Serjeant 's Custody and to pay the Serjeant attending this House his Fees The Parliament shall not give Priviledge to any contra morem Parliamentarium Rush Coll. 663. to exceed the bounds and limits of his Place and Duty And all agreed That regularly he cannot be compelled out of Parliament to answer things done in Parliament in a Parliamentary Course but it is otherwise where things are done exorbitantly for those are not the Acts of the Court. 16 Car. 1. Id 2d Part of the 2d Vol 1147. Resolved That the Lords voting the propounding and declaring matter of Supply before it was moved in the House of Commons was a Breach of Priviledge of the House No Priviledge is allowable in Case of the Peace betwixt private men 2 Nalson 450. much more in Case of the Peace of the Kingdom Priviledge cannot be pleaded against an Indictment for any thing done out of Parliament Ibid. because all Indictments are contra Pacem Domini Regis Priviledge of Parliament is granted in regard of the Service of the Commonwealth Ibid. and is not to be used to the danger of the Common-wealth All Priviledge of Parliament is in the Power of Parliament Ibid. and is a Restraint to the Proceedings of other inferiour Courts but is no Restraint to the Proceedings of Parliament Dec. 1641. Resolved 2 Nalson 729. That the setting of any Guards about this House without the Consent of the House is a Breach of the Priviledge of this House and that therefore such Guards ought to be dismissed Resolved upon the Question Id. 741. nemine contradicente That the Priviledges of Parliament were broken by his Majesties taking Notice of the Bill for suppressing of Souldiers being in agitation in both Houses and not agreed on Ibid. Resolved upon the Question Nemine Contradicente That his Majesty in propounding a Limitation and provisional Clause to be added to the Bill before it was presented to him by the Consent of both Houses was a Breach of the Priviledge of Parliament Ibid. Resolved upon the Question Nemine Contradicente That his Majesty expressing his Displeasure against some Persons for Matters moved in the Parliament during the Debate and preparation of that Bill was a Breach of the Priviledge of Parliament Whereas his Majesty in his Royal Person the 4th of Jan. 1641. 2 Nalson 823. did come to the House of Commons with a great Multitude of Men armed in a warlike manner with Halberds Swords and Pistols who came up to the very door of the House and placed themselves there and in other Places and Passages near to the House to the great Terror and Disturbance of the Members then thereof sitting and according to their Duty in a peaceable and orderly manner treating of the great Affairs of both Kingdoms of England and Ireland and his Majesty having placed himself in the Speaker's Chair did demand the Persons of divers Members of that House to be delivered unto him It was thereupon declared by the House of Commons Ibid. That the same is a high Breach of the Rights and Priviledges of Parliament and inconsistent with the Liberty and Freedom thereof and therefore the House doth conceive they could not with safety of their own Persons or the Indempnities of