of James the Third or of Scotland by the Name of James the Eighth or the Stile and Title of King of Great Britain hath not any Right or Title whatsoever to the Crown of this Realm or any other the Dominions thereto belonging And I do renounce refuse and abjure any Allegiance or Obedience to him And I do swear That I will bear Faith and true Allegiance to His Majesty King George the Second and Him will desend to the utmost of my Power against all Traiterous Conspiracies and Attempts whatsoever which shall be made against his Person Crown or Dignity And I will do my utmost Endeavour to disclose and make known to His Majesty and his Successors all Treasons and Traiterous Conspiracies which I shall know to be against Him or any of Them And I do faithfully Promise to the utmost of my Power to support maintain and defend the Succession of the Crown against him the said James and all other Persons whatsoever As the same Succession by an Act entitled An Act for the further Limitation of the Crown and better Securing the Rights and Liberties of the Subject is and stands limited to the Princess Sophia Electress and Dutchess Dowager of Hanover and the Heirs of Her Body being Protestants And all these Things I do plainly and sincerely acknowledge and swear according to these express Words by me spoken and according to the plain and common Sense and Understanding of the same Words without any Equivocation mental Evasion or secret Reservation whatsoever And I do make this Recognition Acknowledgement Abjuration Renunciation and Promise heartily willingly and truly and upon the true Faith of a Christian So Help me God CHAP. XI Who may be Elected to Parliament BY Stat. 5. 4 Inst 48. Sir Simon d'Ewes Jour 39 40. Eliz. c. 1. no Knight Citizen or Burgess can sit in Parliament before he hath taken the Oath of Allegiance and Supremacy but Note other Oaths are now appointed Vide ante Because the Words of the Writ for Election of Knights 4 Inst 10. c. were duos Milites gladiis cinctos c. it required an Act of Parliament that notable Esquires might be eligible Therefore the Statute says St. 23. H. 6. c. 15. the Knights of the Shires for the Parliament must be notable Knights or such Esquires or Gentlemen born of the same County as be able to be Knights Any Man may be chosen Knight St. 18. Ed. 4. c. 2. in Ireland Citizen or Burgess tho' he be not dwelling within the same Every Knight Citizen and Burgess shall be resiant and dwelling within the Counties Cities and Towns Every Knight Citizen or Burgess taking it upon him and not chosen in the manner prescribed by the Act of Parliament to forfeit an hundred Pounds St. 33 H. 8. c. 1. in Ireland Si home n'esteaut Inhabitant Meor so 551. n. 741 ne free de un Borough il poit Eslier s'il voit server a lour Election ou nemy pur le Borough If a Man be not an Inhabitant nor free of a Borough he may choose if he will serve at their Election or not for the Borough By the Statute none ought to be chosen a Burgess of a Town Rush Col. Vol. 1.689 in which he doth not inhabit but the usage of Parliament is contrary But if Information be brought upon the said Statute against such a Burgess I think that the Statute is a good Warrant for us to give Judgment against him by Whitlock The King cannot grant a Charter of Exemption to any Man to be freed from Election of Knight Citizen 4 Inst 49. or Burgess of the Parliament A Person Outlawed in a Personal Cause may be a Burgess Towns Col. 63.64 Vide John Smiths Ca. Si Simon d'Ewes Jour 48. Col. 2.480 Col. 1 Vide Sir Simon d'Ewes Jour 481. Col. 2. 482. Col. 1. See Bohun's Collection p. 278. 279. If exception be taken to such an Election and an Outlawry alledged to disinable him the Stat. 23 Hen. 6. c. 15. will disinable most of this House for they ought to be Burgesses resident Tho' the Common Law doth disinable the Party yet the Priviledge of the House being urged that prevaileth over the Law A Man Attainted Ibid. Outlawed or Excommunicated or not lawfully elected if he be returned out of all doubt is a lawful Burgess A Knight Banneret 4 Inst 46. being no Lord of Parliament is eligible to be Knight Citizen or Burgess of the House of Commons being under the Degree of a Baron which is the lowest Degree of the Lord's House An Earl's Son may be a Member of the House of Commons Sir Simon d'Ewes Jour 244. Col. 2. 4 Inst 47. One under the Age of one and twenty years is not eligible Neither can any Lord of Parliament sit there till he be full one and twenty Years An Alien cannot be elected of the Parliament Ibid. because he is not the King's Liege Subject and so it is albeit he be made Denizon by Letters Patents c. But if an Alien be naturaliz'd by Parliament then he is eligible to this or any other Place of Judicature No Alien denizated ought to sit here Petyt 's Miscell Parl. 175. Ibid. per Sir Edward Coke Note also the St. 4 An. c. 8. for settling the Succession c. excludes Aliens Resolved upon the Question that the Election of Mr. Walter Steward being no natural born Subject 4 Inst 47. is void and a Warrant to go for a new Writ None of the Judges of the King's Bench or Common Pleas or Barons of the Exchequer that have Judicial Places can be chosen Knight Citizen or Burgess of Parliament as it is now holden because they are Assistants in the Lord's House Yet read Parl. Roll. 31 H. 6. But any that have Judician Places in other Courts Ecclesiastical or Civil Ibid. being no Lords of Parliament are eligible None of the Clergy tho' he be of the lowest Order is eligible to be Knight Moor so 783. n. 1083. 4 Inst 47. Citizen or Burgess of Parliament because they are of another Body viz. of the Convocation The Clergy of the Convocation-House are no Part or Member of the Parliament Hakewel 59. Vide Fox's Book of Martyrs f. 1639. 4 Inst 48. A Man Attainted of Treason or Felony c. is not eligible For he ought to be magis idoneus discretus sufficiens Mayors and Bailiffs of Towns Corporate are eligible 4 Inst 48. Vide contra Brook Abridg. tit Parl. 7. At a Parliament holden 38. H. 8. it was admitted and accepted that if a Burgess of Parliament be made a Mayor of a Town or have Judicial Jurisdiction Crompt 16. or is Sick c. that these are Causes sufficient to choose others Any of the Profession of the Common Law and which is in Practice of the same 4 Inst 48. is eligible By special Order of the House of Commons Ibid. the Attorney General is not eligible to be a Member of the House of Commons Vide infra At the
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 which Bishops are not Judgments in Parliaments for Death have generally been strictly guided per Legem Terrae i.e. Lex Parliamenti d. 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 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 are guided by the Rule 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 Ibid. The Judges of all the Courts of Common Law in Westminster are but Assistants and Attendants to the High Court of Parliament And shall the Assistants judge of their Superiors The High Court of Parliament is the dernier Refort 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 need not be proclaim'd 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 Parliam n. 38. A Truce being concluded between the English and French by King Edward's Ambassadors who therein had dishonourably 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 Precedent and Records that they poured 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 ther Rescue and in dutiful ways discharged those Locks and Bars which had been unjustly fastned on the Exchequer The Right of the Crown of England Stat. Prov. 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 Matters en Ley a trier vie del home a reverser Errors en Bank le Roy especialment lou est ascun Commune Mischief que l'ordinary Course del Ley n'ad ascun means a remedier en tiel Case ceo est le proper Court Et tonts choses que ils font sont come Judgments Et si le Parliament mesme erre Finche's Nomotecnia l. 2. c. 1. f. 21. 22. 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 Sir Robert Cotton See Sir Robert Cot. Treatise of Parliaments p. 44 45 c in his Discourse of the Privilege and Practice of Parliaments says thus by Parliaments all the wholesom Fundamental Laws of this Land were and are Establish'd and Confirmed By Act of Parliament the Pope's Power and Supremacy in this Kingdom and the Romish Superstition and Idolatry were abrogated and abolished By Act of Parliament God's true Religion Worship and Service are or may be establish'd and maintain'd By Act of Parliament the two Universities of Oxford and Cambridge with other Cities and Towns have had many Privileges and Immunities granted em By Parliament one Pierce Gaveston a great Favourite and Misleader of King Ed. 2. was remov'd and Banished and afterwards by the Lords Executed Also by Parliament the Spencer's Favourites and Misguiders of the same King were Condemned c. and so was Delapool in H. 6. Time and others since By Parliament Empson and Dudley two notable Polers of the Common-wealth by exacting Penal Laws on the Subjects were Discover'd and afterwards Executed By Parliament the Damnable Gunpowder Treason hatch'd in Hell is recorded to be had in Eternal Infamy By Parliament one Sir Giles Mompesson a Caterpiller and Poler of the Common-wealth by exacting upon In-holders c. was discover'd degraded and Banished by Proclamation By Parliament Sir Francis Bacon Note the Censure on the late E. of Macclesfield Quere made by K. James 1. Baron of Verulam Viscount of St. Albans and Lord Chancellor of England was for Bribery c. discover'd and displac'd By Parliament Sir John Bennet one of the Judges of the Prerogative Court being Pernitious to the Common-wealth in his Place was discover'd and displac'd By Parliament Lyonel Cranfield sometime a Merchant of London and made by K. James 1. Earl of Middlesex and Lord Treasurer of England being hurfull in his Place to the Common-wealth was discover'd and displaced By Parliament Note Sir Francis Mitchell a jolly Middlesex Justice of Peace in the Suburbs of London another Canker-worm of the Common-wealth by Corruption in exacting an Execution of the Laws upon poor Alchouse-keepers Victuallers c. was discover'd and degraded from his Knighthood and
utterly disabled from being a Justice of Peace By Parliament Ib. p. 46. the Spanish Frauds were discovered and by an Act of Parliament the two Treaties i. e. touching the Spanish Match and for restoring the Palatinate both which had cost the King and his Subjects much Money and much Blood were Dissolved and Annihilated And we may remember says the same Author That that sage Councellor of State Sir William Cecil Lord Burley and Lord Treasurer of England was oft Times heard to say He knew not what a Parliament might not do which saying was approved by K. James 1. and is cited by him in one of his publick Speeches The Parliament says one is of an absolute and unlimited Power in all Things Temporal within this Nation Sir Robers Atkins's Argument p. 50. Bract. fo 34. Fleta p. 2. 17. Another says Parliamentum omnia potest Bracton and Fleta both affirm Rex habet Superiorem in Regno Scilicet Curiam suam i. e. Comites Barones doubtless the Lords and Commons qui apponuntur Regi ut si Rex sine Fraeno i. e. sine Lege fuerit Debent ei Fraenum apponere c. Nay some great Authors have asserted Quod Concilium hoc i. e. Parliamentum Facultatem habet Deponendi Regem Malum Substituendi Novum See Mat. Paris per Watts pag. 498. Knighton de Eventibus Angliae p. 2683. in the Decem. Scriptores and that this Power is claimed ex antiquo Statuto c. Knighton has a remarkable Passage concerning the Execution of that antient Statute in the Cases of E. II. and R. II. which at this Time I forbear to Transcribe or Translate Note It appears by Mat. Paris p. 99. c. That the Commons were then i. e. 15 H. II. summoned to the Parliament held at Clerkenwell and that they also were a Part of the Parliament in the Time of K. H. I. See before p. 34. 35. c. CHAP. IV. Of the House of Lords in general THE House of Peers Rushw eol vol. 3. part 1. p. 777. are the hereditary Counsellors of the King and Kingdom as the House of Commons are the representative Body of the whole Commons of the Kingdom There certainly cannot in the whole World be seen a more illustrious Court Nalson 566. than this high and honourable Assembly of Peers in Parliament nor any Thing of greater Benefit and Advantage to the Subjects of this Monarchy No Lord of Parliament can sit there Sir Simon d'Ewes's Jour 11. Col. 1. till he be full One and twenty Years unless by special Grace of the Prince and that very rarely unless they be near upon the Age of Twenty one Years at least A Bishop elect may sit in Parliament Ibid. ante 3 4 43 44. as a Lord thereof i. e. if called thereto by Writ Q. For he is not properly a Peer or even a Bishop till his Temporalties are granted to him If the King by his Writ calleth any Knight or Esquire to be a Lord of the Parliament 4 Inst 44. he cannot refuse to serve the King there in communi illo Consilio for the Good of his Country It lies in the Favour of the Prince Sir Simon d'Ewes Journal 2.4 Col. 2. to make Heirs of Earldoms Members of the upper House by summoning them thither by Writ but then they take not their Place there as the Sons of Earls but according to the Antiquity of their Fathers Baronies The Archbishop of Canterbury is the first Peer of the Realm Id. 140. Col. 1. The Earl-Marshal's Place in Parliament is betwixt the Lord Chamberlain Id. 535. Col. 2. and the Lord Steward See the Statute No Man ought to sit in that high Court of Parliament 4 Inst 45. but he that hath Right to sit there If a Lord depart from Parliament Id. 44. without License it is an Offence done out of the Parliament and is finable by the Law 4 June 1642 Rushw Col. Vol. 3. part 1.737 Post upon an Order of the House of Lords to those Lords that had left the Parliament and repaired to the King at York requiring their Appearance as Delinquents in the Answer they returned to it there are these Words We do conceive that it is the apparent usual and inherent Right belonging to the Peerage of England that in the highest Misdemeanors whatsoever no Peer is to answer to the first Charge but in his own Person and not upon the first Charge to come to the Bar. Any Lord of the Parliament 4 Inst 12. by License of the King upon just Cause to be absent may make a Proxy 43 Eliz. 1601 Towns Col. 135. Vide Sir Simon d'Ewes Journal 605. agreed by the Lords That the antient Course of the House is That the Excuses of such Lords as shou'd happen to be absent from the House upon reasonable Occasions ought to be done by some of the Peers and not by other Information Anno Domini 1626 Rushw Col. Vol. 1. p. 365. 2 Car. 1. resolved upon the Question by the whole House Nemine dissentiente That the Priviledge of this House is That no Lord of Parliament the Parliament sitting or within the usual Time of Priviledges of Parliament is to be imprisoned or restrained without Sentence or Decree of the House unless it be for Treason or Felony or refusing to give Surety of the Peace N. B. This was upon the King's having committed the Earl of Arundel to the Tower without expressing the Cause of his Commitment All the Priviledges which do belong to those of the Commons House of Parliament Hakewell 82. a fortiori do appertain to all the Lords of the upper House for their Persons are not only free from Arrests during the Parliament but during their Lives Nevertheless the original Cause is by Reason they have Place and Voice in Parliament And this is manifest by express Authorities grounded upon excellent Reasons in the Books of Law A Proxy is no more than the constituting of some one or more by an absent Lord Sir Simon d'Ewes Journals 5. Col. 2. to give his Voice in the upper House when any Difference of Opinion and Division of the House shall happen for otherwise if no such Division fall out it never cometh to be question'd or known to whom such Proxies are directed nor is there any the least Use of them save only to shew prove and continue the Right which the Lords of the upper House have both to be summon'd and to give their Voices in the same House either in their Persons or by their Proxies As many Proxies as any Peer hath Ibid. Col. 2. so many Voices he hath beside his own and if there be two or three Proxies constituted by one absent Lord as is frequent then always the first named in the same is to give the Voice if he be present and if absent then the second sic de reliquis It is plain by the antient Treatise Ibid. 6. Col. 1. Modus tenendi Parliamentum That if a Peer neither came to the Parliament nor sent
a Proxy upon his Writ of Summons he forfeited 100 l. if an Earl 100 Marks if a Baron 100 s. c. It seldom happeneth Towns Col. 4.39 40 42. That any Bishop doth nominate fewer than three or two Proctors nor any Temporal Lord more than one John Archbishop of Canterbury Id. 34. had this Parliament five Proxies 1 Eliz. a Lord of Parliament by License obtained of the Queen to be absent 4 Inst 12 13 made a Proxy to three Lords of Parliament one of which gave Consent to a Bill the other two said Not Content And it was by Order of the Lords debated among the Judges and Civilians Attendants and conceiv'd by them That this was no Voice and the Opinion was affirmed by all the Lords That it was no Voice 2 Car. 1. 1626. the House of Peers made an Order Rush Col. 269. That after this Session no Lord of this House shall be capable of receiving above two Proxies or more to be numbred in any Cause voted In the Lords House Arc Parl. 12. Smith's Common-wealth 87. the Lords give their Voices from the puisne Lord seriatim by the Word Content or Not Content 4 Inst 34. First for himself and then severally for so many as he hath Letters and Proxies A Bill had three Readings in one Forenoon Towns Col. 11. in the House of Lords Towns Col. 9. Where a Committee of Lords is selected out to meet with another Committee of the House of Commons neither the Judges being but Assistants nor the Queen's Council being but Attendants of and upon the House were ever nominated a Joynt-Committees with the Lords But when the Lords among themselves do appoint a Committee to consider of some ordinary Bill especially if it concern Matter of Law it hath been antiently used and may still without Prejudice to the Honour of the House that the King's learned Council but especially the Judges may be nominated as Committees alone or as Joynt-Committees with the Lords January 19. 1597. 39 Eliz. it was resolved Towns Col. 94. Sir Simon d'Ewes Jour That the Order and Usage of this House was and is that when any Bills or Messages are brought from the lower House to be preferr'd to the upper House the Lord Keeper and the rest of the Lords are to rise from their Places and to go down to the Bar there to meet such as come from the lower House and from them to receive in that Place their Messages or Bills Contrariwise when any Answer is to be delivered by the Lord Keeper c. In passing of Bills Arc. Parl. 5. if the Not Contents be most then the Bill is dash't i. e. the Law is annihilated and goeth no further If the Contents be the most then the Clerk writeth underneath Soit baile aux Commons i. e. Let it be delivered or sent to the Commons 3 Car. 1. 1626. resolved upon the Question Rush Col. 365. That the Priviledge of this House is that no Lord of Parliament the Parliament sitting or within the usual Time of Priviledges of Parliament is to be imprison'd or restrain'd without Sentence or Decree of the House unless it be for Treason or Felony or refusing to give Surety of the Peace Giving the Lye to a Peer Nalson 380. Hakewel 84. Vide Kel wey 184. Vid. Lord Hollis's Letter Vid. Lord Hollis's Remains Vid. contra Hunt's Argument for the Bishops Right c. Vid. Grand Question concerning Bishops Right per totum is a Breach of Priviledge Ever since the Conquest the Archbishops and Bishops have no Title to have Voice and Place in Parliament but only in respect of their Temporal Baronies where they are present quousque perveniatur ad Diminutionem Vitae c. When a Question is had of the Attainder of any Peer Hakewel 84. Vid. contra Hart ut supra per tot Vid. Grand Question concerning Bishops Right c per tetum or other in Parliament the Archbishops and Bishops depart the higher House and do make their Proxies for by the Decrees of the Church they may not be Judges of Life and Death 11 Rich. 2. Divers Lords and others being appealed of Treason and other Misdemeanors the Prelates absented themselves during the Trial Selden of Judicature p. 150. Vid. there the Protestation of the Bishops Ibid. 151. having first made Protestation saving their Right to be present in Parliament The Protestation I think intends That they could not be present by Reason of the Common Law and by Reason of an Ordinance made at the Council at Westminster in 21 Hen. 2. by which all Clergymen were forbidden agitare Judicium Sanguinis upon Pain to be deprived both of Dignities and Orders For surely as I think they might otherwise have been present both by the Common Law and by the Law of God Sed Quere All the Lords Spiritual and Temporal Selden's Judicature c. 39. 11 Rich. 2. claimed as their Liberty and Franchise that the great Matters moved in this Parliament and to be moved in other Parliaments in Time to come touching the Peers of the Land ought to be admeasured adjudged and discussed by the Course of the Parliament and not by the Civil Law nor by the Law of the Land used in the more base Courts of the Realm which the King granted in full Parliament The Proceeding against a Peer in Parliament is not necessary Id. 53. Q. It appears that the Lords cannot of themselves judge a Common Person for an Offence Id. 61. for he is no Peer according to that of 4 E. 3. Numb 26. 1 Rich. 2. Id. 123. The Lord Beauchamp was sworn and examined and the Duke of Lancaster being one of the Committee was diligently examin'd before the rest of the said Committee but not sworn ad testificandum Vid. rost Earls and Dukes are not sworn on Trials c. in Parliament In Judgments on Delinquents in Parliament Id. 132. the Commons might accusare petere Judicium and the King assentire but the Lords only did judicare The King's Assent ought to be to capital Judgments Id. 141. Vid. Id. 144 14â— 148 154 158. and the Lords Temporal to be only Judges therein and not the Lords Spiritual but in Misdemeanors the Lords Spiritual and Temporal are equal Judges and the King's Assent is not necessary Id. 136. yet it seemeth that the King's Assent is necessarily required in capital Causes and Judgments If a Peer be committed to Prison the Gentleman Usher hath the Charge of him thither and the Serjeant attending on the Great Seal How Lords of Parliament shall be placed in the Parliament Vide Stat. 31 Hen. 8. c. 10. Vid. 4 Inst 362. Rot. Parl. 3 H. 6.10 Arcana Parl. 70. and other Assemblies and Conferences of Council A Peer of the Realm shall be tried in an Appeal by Knights c. and not by his Peers because it is at the Suit of the Party Brook 142 153. Otherwise it is in an Indictment of Treason or Felony for that it is at the Suit of the King The
offered to the House till the Leave of the House be desired and the Substance of such Bill made known either by Motion or Petition It hath at some Times been ordered Hakewel 135. That every one that preferreth a private Bill should pay five Pounds to the Poor as in 43 Eliz. towards the End of the Parliament when they were troubled with much Business but it holdeth not in other Parliaments Scobel 41. Nevertheless the Speaker had Liberty to call for a private Bill to be read every Morning and usually the Morning is spent in the first Reading of Bills untill the House grow full If any publick Bill be tendered Ibid. the Person who tenders the Bill must first open the Matter of the Bill to the House and offer the Reasons for admitting thereof and thereupon the House will either admit or deny it 7 Martii 1606. Mr. Id. 46. Hadley being assigned of a Committee to confer with the Lords desired to be spared he being in Opinion against the Matter itself And it was conceived for a Rule That no Man was to be imployed in any Matter that had declared himself against it and the Question being put it was resolved Mr. Hadley was not to be employed Presidents reported by Mr. Pryn 28 Jan. 1666. about the Method of Proceeding upon the Impeachment of the Lord Mordant 28 May 1624. In the Lords Journal Council to be allowed Impeachment which is entered in haec verba and allows Council in all Cases 1 2 Car. 1. A great Dispute if the Earl of Bristol impeached for High Treason should be allowed Council The Lords then stood on the Order above recited The King objected to that Order that the Judges and his Council had not assented thereto yet the King consented to avoid being thought rigorous that the Earl of Bristol should be allowed Council so it were not drawn into Precedent Council was allowed to Sir George Bynion Council allowed to Garney Lord Mayor of London impeached for High Crimes and Misdemeanors 5 11 July 1642. and 1 2 August Sept. 30. 1645. An Impeachment of of the Earl of Strafford H. Poulton c. for striking Sir Arthur Haselrig Upon all which the House did acquiesce in the Lord Mordant's having Council As to his sitting within the Bar The Lords insisted on it on the Precedents of 18 Jac. the Bishop of Landass and 1645. the Lord Stamford Seignor Coke Litt. Rep. 330. Elect. 1 Car. 1. Viscount de Bucks Chivaler de Norsolk Comment que ill abstein de la maison uncore il avoit privilege versus la Dame Cleer The Privileges of Parliament consist in Three Things May 's Hist Parl. l. 3. p. 27 Sir Robert Atkin's Power of Parliaments 36. Rush Col. Vol. 1.663 First as they are a Council to advise Secondly a Court to judge Thirdly a Representative Body of the Realm to make repeal or alter Laws Upon some Questions propounded to the Judges Anno 1629. 5 Car. 1. all the Judges agreed That regularly a Parliament-Man cannot be compelled out of Parliament to answer Things done in Parliament in a parliamentary Course Their Rights and Privileges are the Birth-right and Inheritance not only of themselves Rush Col. Vol. 3. p. 1. 458. but of the whole Kingdom wherein every Subject is interested The Violating of the Privileges of Parliament Rush Col. Vol. 3. p. 1. 475. Rush Col. Vol. 1. p. 537. is the Overthrow of Parliament The Privileges of the House says Sir Edward Cook are the Heart-Strings of the Commonwealth and therefore if the King desires a Nonrecess I desire that this may be enter'd That it is done ex rogatu Regis The King viz. Charles II. Journ of House of Commons in his Letter to the King of Spain declares That the Murder of his Father was not the Act of the Parliament or Kingdom of England but of a little Company in the Kingdom 23 Aug. 1660. Expulsion from the House for Words Thursday in the Morning 27 May Diurnal Occurrences of Parliament from Nov. 3. 1640. to Nov. 3. 1641. p. 11â— 1641. Mr. Tayler a Barrister and Burgess for Old Windsor was brought upon his Knees in the House of Commons for speaking some Words in Disparagement of the whole House about the Earl of Strafford's Death saying They had committed Murder with the Sword of Justice and that he would not for a World have so much Blood lie on his Couscience as did on theirs for that Sentence Which Words being proved against him by the Mayor of Windsor to whom he spoke them and some others he was thereupon expelled the House and voted uncapable of ever being a Parliament Man committed to the Tower during Pleasure to be carried down to Windsor there to make Recantation for those Words and to return back to the House of Commons to receive further Sentence And it was ordered That a Writ should presently issue out for a new Election is his room The 2d of June he petitioned to be restored upon his Submission Id. p. 116. Id. the where Rush Col. part 3. vol. 1. fo 278 280. But his Petition would not be hearkened unto A Member sent to the Tower for discovering what was said in the House in a former Parliament Mr. Francis Nevill Rush Col. part 3. vol. 1. fo 169. of Yorkshire a Member of the House was February 4. 1640. 16 Car. 1. questioned for Breach of Privileges in the precedent Parliament which met 13 Apr. 1640. by discovering to the King and Council what Words some Members did let fall in their Debate in that House Whereupon Mr. Bellasis Knight for Yorkshire and Sir John Hotham were committed by the Council-Board And Mr. Nevill being brought to the Bar was by the House committed to the Tower of London and Sir William Savill touching the same Matter was ordered to be sent for in Custody CHAP. XXIII Privilege of Parliament THE Privilege of Tenants in Ancient Demense Sir R. Atkin's Argument 18. Vide Coke 9 Rep. in Pref. must be as ancient as their Tenure and Service for their Privilege comes by Reason of their Service and their Service is known by all to be before the Conquest in the Time of Edward the Confessor and in the Time of the Conqueror Every Man must take Notice of all the Members of the House returned of Record 4 Inst 23.24 at his Peril Otherwise it is of the Servant of any of the Members of the House Id. 24. A Member of Parliament shall have Privilege of Parliament Id. 42. Hakewel 62. not only for his Servants but for his Horses c. or other Goods distrainable The Privilege is due eundo Scobel 88. morando redeundo for the Persons of Members and their necessary Servants and in some Cases for their Goods and Estates also during the Time For their own Persons they have been privileged from Suits Ibid. Arrests Imprisonments Attendance on Trials Serving on Juries and the like yea from being summoned or called to attend upon any Suit in other Courts by Subpoena
House to the Lord Chancellor for awarding Writs of Supersedeas 3 Martii Ibid. 18 Jac. 1. Upon a Report from the Committee appointed to consider of a Way of staying Trials against Members of the House that by several Precedents the Custom appeared to be in such Cases That on Motions and Orders in the House Letters were written to the Justices of Assize for stay of Trials against Members of the House which Letters were entred in the Journal-Book and that it belongeth to the Clerk to write the the same It was thereupon Resolved That the former Course of writing Letters to Justices of Assize should be held according to former Precedents 10 Junii 1607. Sir Robert Johnson Id. 95. a Member of this House moved for a Letter to stay a Trial against him in the Exchequer Which was granted as appeareth by the Entry on the 13th Day when a Petition of Sir Robert Brett was read against that Privilege The Privilege formerly granted was affirmed upon this Reason That no Man should have any Thing to withdraw him from his Service in the House The like 14 Feb. 18 Jac. 1. The Privilege of the House is so much insisted on that it hath been a Question Ibid. Whether any Member of the House could consent that himself might be sued during the Session because the Privilege is not so much the Person's as the House's And therefore when any Person hath been brought to the Bar for any Offence of this Nature the Speaker hath usually charged the Person in the Name of the whole House as a Breach of the Privilege of the House 3 Junii Ibid. 1607. Sir Thomas Holcroft a Member of the House had occasion to sue at Law and was sued with which he was content and desired the Leave of the House There was a Question Whether the House should give Leave for a Breach of Privilege and it was resolved The House might give Leave 7 Maii Id. 96. 1607. Sir Thomas Bigg and Sir Thomas Love being returned upon an Attaint in the King's Bench it being moved That in this Case they ought to have Privilege it was so ordered and the Serjeant sent with his Mace to deliver the Pleasure of the House to the Secondary the Court sitting 22 Nov. 1597. Ibid. Vide Sir Simon d'Ewe's Jour 560. Col. 2. Sir John Tracey a Member of this House being at the Common Pleas Bar to be put upon a Jury the Serjeant at Arms was presently sent with his Mace to fetch him thence to attend his Service in the House April Scobel 96. 12 Jac. 1. Sir William Bamp-field was committed by the Lord Chancellor for a Contempt after the Writ of Summons but before the Election Ordered upon the Question That he shall have his Privilege by Writ of Habeas Corpus 1 Jac. 1 Sess 2. Ibid. Sir John Peyton returned Knight for Cambridge the last Session and since chosen Sheriff Resolved That he shall attend his Service here 28 Martii 1542. Herbert's Hen. 8. 539. During this Session of Parliament some Wrong was offered to their ancient Privileges a Burgess of theirs being arrested Whereof the King understanding not only gave Way to their releasing him but Punishment of the Offenders Insomuch that the Sheriffs of London were committed to the Tower and one Delinquent to a Place called Little Ease and others to Newgate 2 Martii 1592. Scobel 112 113. Vide Moor. fo 340. n. 461. Fitzherbert's Case Vide Sir Simon d'Ewe's Jour 479 480 490 Col. 2. Upon a Report from the Committee of Privileges That one Mr. Fitzherbet was returned a Burgess and excepted against because he was alledged to be Outlaw'd and detained upon such Outlawry the House ordered That Mr. Speaker should move the Lord Keeper for an Habeas Corpus cùm Causà to bring up the Body and the Cause of Mr. Fitzherbert But the Lord Keeper returned That in regard of the ancient Liberties and Privileges of this House the Serjeant at Arms be sent by Order of this House for Mr. Fitzherbert at his own Charge by Reason whereof he may be brought without Peril of being further arrested by the Way which was approved of 1 Jac. 1. Scobel 104 105 106 107. Vid. Petyt's Miscel Parl. 222 123 124 125 The first Day of sitting Complaint was made That Sir Thomas Shirley chosen a Member of the House was arrested four Days before the Sitting of this Parliament a Warrant issued to the Clerk of the Crown for a Habeas Corpus to bring him to the House being then a Prisoner in the Fleet and the Serjeant and his Yeoman were sent for in Custody who being brought to the Bar and confessing their Fault were remitted for that Time 17 April Upon hearing Council in the House at the Bar for Sir Thomas Shirley and the Warden of the Fleet it was ordered That Simson at whose Suit and the Serjeant by whom the Arrest was made should be committed to the Tower 4 Maii A Habeas Corpus was awarded to the Warden of the Fleet to bring Sir Thomas Shirley to the House The Warden deny'd to execute it For which the 7th of May following he was sent for by the Serjeant and brought to the Bar who denying to bring his Prisoner a new Writ of Habeas Corpus was awarded and the Warden was committed to the Serjeant with this Order That if that Writ were not executed that then he should be delivered over to the Lieutenant of the Tower as the House's Prisoner 8 Maii The Serjeant was sent with his Mace to the Fleet the House sitting to require the Body of Sir Thomas Shirley But the Serjeant being deny'd a Warrant was made to the Serjeant to deliver the Warden of the Fleet to the Lieutenant of the Tower to be kept close Prisoner 11 Maii The Warden was again sent for and brought to the Bar and refusing to deliver up his Prisoner he was committed to the Place called the Dungeon or Little Ease in the Tower 14 Maii A new Warrant was ordered for a new Writ of Habeas Corpus and that the Serjeant should go with the Writ that the Warrant should be brought to the Door of the Fleet by the Lieutenant himself and there the Writ to be delivered to him and the Commandment of the House to be made known to him by the Serjeant for the executing of it that in the mean Time the Warden to be presently committed to the Dungeon and after to be returned thither again 18 Maii The Warden did deliver Sir Thomas Shirley and so was not put into the Dungeon 19 Maii He attending at the Door was brought into the Bar where upon his Knees confessing his Error and Presumption and professing he was unfeignedly sorry he had so offended this Honourable House Upon that Submission by Direction of the House the Speaker pronounced his Pardon and Discharge paying ordinary Fees to the Clerk and to the Serjeant Mr. Belgrave Sir Simon d'Ewe's Jour 688. Col. 1. being a Member of the House of Commons had
Lex Parliamentaria OR A TREATISE OF THE LAW and CUSTOM OF PARLIAMENTS Just Published Parliamentary and Political TRACTS written by Sir ROBERT ATKINS Knight of the Bath and late one of the Judges of the Court of Common-Pleas Containing I. THE Power Jurisdiction and Privilege of Parliament and the Antiquity of the House of Commons asserted Occasioned by an Information in the King's-Bench by the Atorney-General against the Speaker of the House of Commons II. An Argument in the great Case concerning Election of Members to Parliament between Sir Samuel Barnardiston Plantiff and Sir William Soame Sheriff of Suffolk Defendant in the Court of King's-Bench in an Action upon the Case and afterwards by Error sued in the Exchequer-Chamber III. An Enquiry into the Power of dispensing with Penal Statutes Together with some Animadversions upon a Book writ by Sir Edward Herbert Lord Chief Justice of the Court of Common-Pleas intitled A short Account of the Authorities in Law upon which Judgment was given in Sir Edward Hale's Case IV. A Discourse concerning the Ecclesiastical Jurisdiction in the Realm of England V. A Defence of the late Lord Russels's Innocency by way of Answer or Confutation of a Libellous Pamphet intitled An Antidote against Poison with two Letters of the Author of this Book upon the Subject of his Lordship's Tryal VI. The Lord Russel's Innocence further defended by way of Reply to an Answer intitled The Magistracy and Government of England vindicated VII The Lord Cheif Baron Atkins's Speech to Sir William Ashurst Lord Mayor Elect of the City of London at the Time of his being sworn in their Majesties Court of Exchequer Lex Parliamentaria OR A TREATISE OF THE LAW and CUSTOM OF PARLIAMENTS Shewing their Antiquity Names Kinds and Qualities Of the three Estates and of the Dignity and Excellency of Parliaments their Power and Authority Of the Election of Members of the House of Commons in general their Privilege Qualifications and Duties Of the Electors and their Rights Duties and Manner of Elections Of the Returns to Parliament the Sheriff's and other Officers Duty therein Of the Manner of Election of the Speaker and of his Business and Duty Of the Manner of passing Bills and the Orders to be observed in the House of Commons Of Sessions of Parliament as also of Prorogations and Adjournments Together with the proper Laws and Customs of Parliaments With an APPENDIX of a Case in Parliament between Sir Francis Goodwyn and Sir John Fortescue for the Knights Place for the County of Bucks 1 Jac. I. The SECOND EDITION with Large Additions LONDON Printed for J. STAGG in Westminster-Hall THE PREFACE IT must be confessed that Lex Parliamentaria or Parliamentary Law cannot be meant or intended to signify any Prescription or Application of Laws to that Power which in itself is boundless and unlimited This Collection therefore only shews what Parliaments have done and not what they may or ought to do The Parliament alone can judge of such Matters as concern their own Rights Authorities or Privileges And yet seeing the Phrase Parliamentary Law or Law of Parliaments has for some Ages past obtained Lord Coke Sir Matth. Hales's c. and that too among Authors of great Name I hope the present or any future Parliament will not censure me for a Word misapplied or for endeavouring to illustrate that Authority which is improperly denominated Parliamentary Law The Parliament itself is no doubt properly to be stiled The fundamental Law and Constitution of this Kingdom as it comprehends all Legal Powers whatsoever But as God and Nature influenced the Voice and Desires of the People to this Form of Government by Parliaments so it must be confessed that the same supream Power also influenced their Voices and Desires to establish this Parliamentary Government for the Safety and Preservation of the Governed and thereby constituted the Salus Populi to be the supream Law to whose Support all other Laws Powers and Authorities ought to tend 'Tis for this End Kings are created and for this End Parliaments assemble that so the Polity and Government of the Nation may be administered with Honour and with Safety for the Good of the whole Community Nor can it be denied but that Parliaments in former Times esteem'd it as their most incumbent temporal Duty to oversee recognize and resirain within the Bounds of Law the Commands and Acts of Kings and to take care that that great and honourable Trust reposed in the Hands of the Prince for the Good of the People might be rightly and duly administered and not perverted or abused to the Invasion of their Rights or the Subversion of the Constitution Brac p. 34 Flet p. 2.17 vide hic p. 89. 'Twas the Sense of this Duty of Parliaments induced both Bracton an eminent Judge under King Henry III. and Fleta a learned Lawyer in King Edward I's Time to record this great Duty of Parliaments to succeeding Ages And from this very Motive it was See the Preface to Privilegia Londini p. 6 7. that our antient Parliaments were so cautious as to oblige our Kings to swear at their Coronations Concedere justas Leges quas vulgus elegerit That they would grant such just Laws as the common People should choose See this Oath admirably well explained in Sadler's Rights of the Kingdom Page 71 88 91. c. From all which and much more that may be added I think it clearly appears That both Kings and Parliaments Lords and Commons and all Laws of Government whatsoever were in their first Intention instituted and ordained for the sole Good and Benefit of the People And where-ever all or any of them are perverted from that View they loose the Nature of their first Intention and ought to receive a contrary Denomination And from the foregoing Particulars I at present apprehend that the Lex Parliamentaria or Fundamental Law of Government in this Nation was not originally founded on any Capitulation or Compact between the King and the People as is usually done in Contracts of Bargains and Sales or other Purchases For that would infer a separate Interest between Prince and People But who will say that a British Monarch can by Law have a distinct Interest from his People Also the mutual Obligation that is established between the Prince and People by the Laws of this Kingdom have laid an unsurmountable Bar against any such Capitulation or contracting Project For by the original and inherent Nature of our Government there is such amutual Relation and political Connection created between the King and his People as in that natural Relation and Connection between the Head and the Members of the Body so that in neither Instance can the Head say to the Members I have no need of you c. This mutual Relation between Prince and People seems to have been interwoven in the fundamental Being and impressed in the very Heart of our Constitution c. The Publisher here thinks fit to declare That this Book has
as were the Aldermen of Counties which we call Earls and the Heretoges of Counties usually rendred Duces Ibid. 204. 205. because they headed the People in War and were then as our Lords Lieutenants but of far greater Authority But That they also comprehended other Temporal Magistrates as also the Bishops and Rulers of the Church for that it appears those Words Magnates Seniores or Senatores included the chief Rulers Magistrates and Officers of the People in all Affairs Civil Military and Ecclesiastic and it appears That these generally constituted the Wittenagemote or Saxon Parliament Indeed on extraordinary Occasions See Saxon Chron. An. 1055. And the Beadmanealre Witenagemote i. e. Et indictus fuit omnium Procerum Conventus before Mid-Lent This included the Commons and was by Reason of the extraordinary Business then there transacted the Commons i. e. their lesser Thanes or Lords of Manors as also the Representatives of Cities or Burros did in Person appear there likewise But if we rightly consider the Model of the Saxon Government we shall find That except in such extraordinary Cases it would be a vain and fruitless Thing for the Commons to appear in Person at all their Assemblies of the Magnates Regni seeing those Magnates were in Truth the Peoples ordinary Representatives being elected and fully instructed by the Commons about such Affairs as related to them For the Constitution of the Saxon Government was such as made all the lesser Assemblies of the People for the Election of Magistrates and Distribution of Justice to have a Connection with and Dependance on some higher and more honourable Convention Wilkins ut supra Lambard ut supra to whom there lay a Representation and Appeal from the inferior Convention in such a Manner as That every inferior legal Convention was as it were a lesser Parliament which had some other superior Parliament to appeal to So the higher Assemblies had the Inspection and Controul of what was transacted in the next subordinate Conventions And hence it appears Spelman 540. That the Saxon County-Courts the Hundred-Courts or Wapentakes and even the Court-Barons or Manor-Courts were as much Parliamentary Assemblies within their respective Precincts and Jurisdictions as the Wittenagemote or Assembly of Great Men was for the whole Kingdom Thus in ordinary Cases there was no Occasion to apply to the superior Parliament See Mirror cap. 5. sect 1. Parliamts to be held at London twice yearly c. i. e. Whether the King summon'd 'em or not and as Sadler p. 50. Licet Rex sit absens c. Note the Inferior Courts were held 12 Times yearly on 〈◊〉 Days Notice but not the Superior Wilkins Sax LL. 205 c 2 when the inserior Parliament could and usually did provide a Remedy But there are two Things especially remarkable in the Oeconomy or Connection of the Saxon Plan of Government which will give us great Light into the Nature of their Folkmotes and Wittenagemotes or Parliaments viz. 1st That all their Folkmotes or County Assemblies being generally held twice yearly at certain particular Places and on certain stated Days or Times in the Year there was no Occasion for any special Notice to be given of or any Summons to those Assemblies no more than for the Terms at this Day Every Freeman whose Duty it was attended there in Person or by Representation and that under a Mulct or Penalty as may be seen in the Saxon Laws relating to this Matter Thus the Free-Tenants of Manors Spel. Glos in verbis Manor Turnus Comitatus c. by their Lord or Steward the Burroholders by the Head-Burros and the Freemen in each Tything by their Tienmantale or Representative attended at the Hundred Courts and those of the Hundred attended at the County Courts by their Hundreders c. And those of the County as Earls and Bishops of the respective Counties attended the Witenagemote in this Manner viz. The Courts of Manors and Tythings always ended before the Wapentacks or Hundred Courts began and these ended just before the Folkmotes or County Courts began and these last just before the ordinary Witenagemote or Grand Parliamentary Assembly began By this Method See 32d Law Ed. Conf. a certain Connection and Dependance of all inserior Courts on the next Superior was established so that there lay an easy Transition by Appeal from the Inferior to the next superior Court and lastly To the Conventio Magnatum or Supream Assembly 2dly Another observable is That all these Courts were so held twice yearly for the free Election of Magistrates and the free Distribution of Justice within their respective Precincts To which End all the inferior Courts were held about the End of September for electing their Magistrates and Officers as they still are in London and some other Cities and the other half yearly Assembly for Distribution of Justice was usually about the End of March yet so that all was over before the Wittenagemote See Wilkins LL. Saxon. p. c. 1. Purif 〈◊〉 M. uno 〈◊〉 eodem Die per Totum Regnum or Grand Assembly was held which by an express Law was always to commence The first on the Calends of October for confirming or constituting all the Aldermen or Earls or Hetetoges or Lord Lieutenants of the several Counties as also of all the other Great Officers of the Kingdom and the other about the Calends of May for distributing of Justice c. N. B. For by the Constitution of the Saxon Government no Officer either Civil or Military or even Ecclesiastical could be invested in his Office or Exercise any Jurisdiction or Authority over Freemen without the free Election and Consent of those Freemen over whom he was to exercise such Authority and tis for this Reason more especially That the People of England are denominated Free for that by the antient Laws and Constitution of the Kingdom they had this just and natural Right viz. The free Election of their Magistrates and Governors without which our Ancestors thought all other Liberties were but a Species of Bondage For of what Use can Liberty be to him whose Person or Estate is subject to Officers c. set over him without his own Consent This Freedom of Election of Magistrates c. Civil and Military under the Saxon Government fully appears thro-out the whole Body of their Laws especially in the 35th Law of Edward the Confessor which provides See Spel. Gloss in verbo Vicecom p. 555. That all Sheriffs or Earls and all Heretokes or Lords Lieutenants of Counties shall be elected in pleno Folkmote i. e. by the Freeholders in a general County Assembly or Parliament And that their Practice was therein pursuant to the Law Sax. Chr. sub Anno 1064. appears from the Case of Tosty Earl of Northumberland for says the Saxon Chronicle That Earl misbehaving himself in his Office the People of that County deposed him from being their Earl and proceeded to elect Morkar the Son of Elfgar LL. Inae c. 8. 36. LL. Edgari c. 3.
LL. Canuti c. 13. 14. into his Place Which Power of deposing Earls and other Officers appears to have been vested in their Folkmotes by express Provision of divers Laws both of the Saxon and Danish Kings I confess in the Case of Earl Tosty Sax. Chr. p. 171. tis said That after the People had so elected Morker to be their Earl they certified their Election to the King and intreated his Assent thereto to which the King yielded and on the Vigils of Simon and Jude sent them a Confirmation or Renewal of the Laws of King Canute i. e. That for deposing Earls c. This shews That tho the King had the Power of confirming the Earl in his Office yet he could not of himself appoint any Earl over the People without their own free Election and Consent in a Folkmote or County Parliament Now Vide Edv. Cons 32. 35. as all Titles and Dignities in the Saxon Plan of Government had both Officium and Benesicium annex'd thereto so there were divers previous Qualifications necessary to enable the Persons to be elected to such Dignity or Office Thus in Order to be a greater Thanes-worthy Qualifications and Elections of Peers c. or worthy to be elected one of the greater Thanes i. e. Lord of a Hundred he was to have such an Estate and to be an Earl or Alderman's-worthy or worthy to be elected an Earl or Alderman of a County he was to have such an Estate with other Qualifications respecting each Office So that three Things at least ought to concur in constituting an Alderman or Earl of a County as also of a greater Thane or Lord of a Hundred both which with the Bishops then made up the Body of their ordinary Folkmotes and Witenagemotes viz. 1st He was to have an Estate in Lands with other Qualifications Secondly The Election and Consent of such Freemen over whom he was to preside And thirdly The Royal Assent or Confirmation usually in Parliament And further as all the Magnates Regni Who ordinarily were Representatives of the People That Bishops were elected by the People even after the Conquest See Sadlers Rigts of the Kingdom p. 1178. 133. 134. 140. c. and all other Officers and Magistrates whether Civil or Military and even Ecclesiastical as Bishops c. were in those Times elected to their respective Offices by the Persons over whom they were to preside so they were liable for Misbehaviour in their Offices not only to a Deprivation but also to be otherwise censured and punished in their Folkmotes and other Conventions and consequently were under the strictest Guard to keep to their Duty and perform their Trust both in their Folkmotes or County Parliaments as also in the Grand Witenagemote or Supream Parliament And tho such Officer presided in the former as their Prince or King yet in the latter he was but their Representative And thus the Magnates Regni Nota. or Lords of Parliament were originally and ordinarily no other than the Representatives of the Commons or Freemen Tis true in extraordinary Cases Spel. Glos verbo Subsidium as in Granting of New Ayds or Taxes as Danegelt c. the Commons likewise attended in Parliament either in Person or by their Deputies specially authorized but such Ayds and Taxes were then very rare See Mr. Madox's Hist Exchequer c. 7. 8 9 c. the Crown in those Times being abundantly supply'd in ordinary Cases by its Rents and Revenues both certain and casual as Fines Forfeitures Escheats the third Part of the Profits of all Leets Hundreds Counties and other Courts Ayds to make the King's eldest Son a Knight Vide Paulus Manut. De Legihus Romanis to marry his eldest Daughter c. all which I take to be of a British or Roman Original Besides which if we consider the vast Profits and Revenues then arising from the antient Demesne and other Crown Lands we may easily Grant That the King had rarely any Occasion for extraordinary Ayds For the Tenants of those Lands Spel. Glos verbo Villenagium holding the same in Villenage and they themselves being esteemed as the Villani Regis the King could not only Tax 'em at his Pleasure but also appoint 'em what Officers and Magistrates and even out 'em of their Possessions as he pleased and therefore Tenants in antient Demesne while they continued such 〈◊〉 were never esteemed Freemen they never served on Juries never voted for Members of Parliament nor ever contributed to their Expences In short They were thought to be so far under the Power and Influence of the Crown as not to be in any wise entrusted with the Peoples Liberties Sir H. Spelman in his Glossary In verbo Subsidium p. 527. says thus I find not that the antient Saxon Kings had any Subsidies c. But they had many Customs whereby they levyed Money of the People or Personal Services towards building repairing of Cities Castles Bridges Military Expeditions c. call'd Burgbote Bridgebote Herefare Heregeld c. But when the Danes oppress'd the Land King Egelrede or Ethelred Anno 1007 yielded in a Parliament to pay them 10000 l. which was afterwards encreased to 36000 l. then to 113000 l. and lastly Note this Assessment was doubtless with Consent of the Commons Q. If Church-men were not Procuratores aut Participes Danici Subsidii to a yearly Tax or Tribute of 48000 l. This was called Danegeld and for raising it every Hyde or Plough of Land was cessed at 12 d. yearly the Church-Lands excepted which therefore was called Hydage and Carvage which Name afterwards remained upon all Subsidies and Taxes imposed upon Lands for sometimes it was imposed upon Cattle and then twas called Horngled But tho' the Saxon Witenagemotes were so ordinarily held per Regem cum Magnatibus Regni Yet it is very Evident that when any matters were to be there Transacted which in general concerned the Body of the Freemen of the Kingdom in such cases the Rule was Quod tangit omnes tractetur ab omnibus and nothing could be determined in their Parliaments relating to Peace or War new Ayds Taxes or other publick charges on the People without their Common Assent either in Person or by special Representatives Tis true See Madox ut ante the Saxon Kings had very rarely any such Ayds Taxes or Subsidies as are granted to our Kings at this Day The vast Profits arising to the Crown in those Days consisted in the Rents and Produce of their antient Demeasn Lands the third Part of the Profits of all the County and other Courts in the Kingdom besides the many other Incomes on Fines Forfeitures and other Penalties and other Revenues certain and casual made it seldom necessary to Tax the People by a Parliament They had also says Spelman many Customs In verbo Subsidium whereby they levied Money of the People or exacted their Personal Services towards the Building and Repairing of Cities Castles and Bridges for Military Expeditions c. which they called Burg-bote
of the Realm and every particular Member thereof either in Person or by Representation upon their own Free Elections are by the Laws of this Realm deemed to be personally present 1 Jac. 1. c. 1. Sir Edward Cook in his Epistle to the 9th Report says There is a threefold End of this great and honourable Assembly of Estates First That the Subject might be kept from offending that is That Offences might be prevented both by good and provident Laws and by the due Execution thereof Secondly That Men might live safely in Quiet And thirdly That all Men might receive Justice by certain Laws and Holy Judgments that is to the End that Justice might be the better administred that Questions and Defects in Laws might be by this High Court of Parliament planed and reduced to a Certainty and that Claims of Right might be adjudged and determined This Court being the most supream Court of this Realm is a Part of the Frame of the Common Laws and in some Cases doth proceed legally according to the ordinary Course of the Common Law The House of Lords cannot exercise any Power as an House of Parliament Sir R. Atkin's Argument f 51. or as a Court for Error without the House of Commons be in Being at the same Time Both Houses must be prorogued together and dissolved together By the Law Ib. 59. Parliaments ought to be very frequent 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. 11 Col. 14 The Parliament can do no Wrong 6 Col. 27. Sir R. Atkyne Arg. 60. of which no Man ought to imagine a Thing dishonourable An Offence committed in Parliament is a very very high Offence 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 Yet a Parliament may err Plow Com. 397. 9 Col. 106. 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 preceeding 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 Ibid whose Representative they are If any Offence whatever be committed in the Parliament by any particular Member See Husband's Collections ante p. 1. p. 67. it is an high Infringment of the Right and Privilege 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 Ib. 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'd 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 6. Vide Cromp. Jur. 10. as in the Time of Parliament wherein the King as Head and they as Members are conjoyn'd and knit together in one Body Politic So as whatsoever Injury during that Time is offer'd to the meanest Member 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 that the highest Statutes in England are made not only by the Princes Pleasure Fortescue 42. but also by Assent of the whole Realm So that of Necessity they must procure the Wealth of the People and in no wise tend to their hindrance It cannot otherwise be thought Ibid. but that they are replenish'd with much Wit and Wisdom seeing they are ordain'd not by the Device of one Man alone or of a hundred wise Counsellors only but of more than three hundred learned Men now 558 that ought to be freely Elected by the People Acts of Parliament are made with such Gravity Wisdom 11. Co. 63. Fortesc c. 18. c. 40. and Universal consent of all the Realm and for advantage of the publick Wealth that they are not from the General and ambiguous Words of a Subsequent Act to be abrogated Acts of Parliament have been tender of racking the King's Subjects for Words 1. Mod. Rep. 234 and the Scripture Discountenances Mens being made Transgressors for a Word Every Proviso in an Act 1. Siderf 155. is not a determination what the Law was before for they are often added for the Satisfaction of those that are ignorant of the Law The King of England can neither by himself or his Ministers Fortescu p. 84. impose any Tallages or other Burdens on his Subjects or alter their Laws or make new Laws without Assent of the whole Kingdom in Parliament CHAP. III. Of the Power and Authority of Parliaments THE Parliamentary Power Hollinsh Vol. 1. p. 173. as it is in the Legislative Capacity consisting of the Agreement and Act of all the three Estates King Lords and Commons to make it Binding it imports no
less than the united Consent of all and every Person of the Kingdom and under this Notion its Power is Unlimited and Universal its Authority is the most unerring and firm support of Monarchy and Government and has been ever used as the only Expedient to accommodate the differences of Pretenders and Competitors to arbitrate and decree not only the Right and Possession but even the Inheritance and Reversion of the Regal Power to succour and defend the King and Kingdom against all possibility of Injury or Incroachment that might be Intended against or Usurped upon it or its Authority to decree the Nations Liberties ascertain Property and to establish an unquestionable Peace and Security to all the People both from the danger of Grievances at Home or the Assaults of foreign Power In this capacity it hath Power above the Law itself Hollinshead c. 1. vol. 1. p. 173. having Power to alter the common Law of England to declare the meaning of any doubtful Laws to repeal old Patents Grants or Charters and Judgments whatsoever of the King or any other Court of Justice if erroneous or illegal and extends so far as finally to oblige both King and People to punish Offenders of all Sorts to examine into the corruptions of Religion and either to disanul or reform it Anno 1626. 2. Rushw Coll. vol. 1. p. 245. Car. the Commons in their Remonstrances declare that it hath been the antient constant and undoubted Right and Usage of Parliaments to question and complain of all Persons of what degree soever found grievous to the Common-Wealth in abusing the Power and Trust committed to them by the Sovereigns a Course approved of by frequent Presidents in the best and most glorious Reigns appearing both in Records and Histories c. In 30. E. 3. 7. H. 4. Rot. Parl. N o 31 32. the Parliament accused John de Gaunt the King's Son and Lord Latimer and Lord Nevil for misadvising the King and they went to the Tower for it In 11. Rushw Ib. p. 627. H. 4. N o 13. the Council are complained of and are removed from the King for that they mewed-up the King and disuaded him from the common Good In 4. H. 3. 27. E. 3. 13. R. 2. the Parliament moderateth the King's Prerogative and nothing grows to an Abuse says Sir Edward Coke but the Parliament hath Power to treat of and Correct it And King James the 1st Idem p. 62â— put the Commons assembled in Parliament in mind that it would be the greatest unsaithfulness and breach of Duty to his Majesty and of the Trust committed to them by the Country that could be if in setting forth the Grievances of the People and the Condition of all the Petitions of this Kingdom from whence they come they did not deal clearly with him without sparing any Persons how near and dear soever they were unto him if they were hurtful or dangerous to the Common-Wealth The most High and Absolute Power of the Realm of England Sir Tho. Smith's Common-wealth l. 2. c. 2. p. 72. Arcana Parl. 1. consisteth in the Parliament For as in War where the King himself in Person the Nobility the rest of the Gentility and the Yeomanry are is the Force and Power of England So in Peace and Consultation where the Prince is to give Life and the last and highest Commandment the Barony or Nobility for the higher the Knights Esquires Gentlemen and Commons for the lower part of the Common-wealth the Bishops for the Clergy be present to advertise consult and shew what is good and necessary for the Common-wealth and to consult together and upon mature deliberation every Bill or Law being thrice read and disputed in either House the other two parts first each a part Ibid p. 73. and after the Prince himself in presence of both the Parties doth consent unto and alloweth that it is the Prince's and whole Realm's Deed whereupon justly no Man can complain but must accommodate himself to find it good and obey it Thus the concurrent Consent of these three Estates when reduced to writing Inst Leg. p. 34. and pass'd in Parliament is as it were a Tripartite Indenture between King Lords and Commons and that which is so done by this Consent is called firm stable and sanctum and is taken for Law As to the Power of Parliaments Sir Tho. Smith ibid. Arc. Parl. 2. Vide Crompt Jur. 3. 1. It abrogateth old Laws 2. Maketh new Laws 3. Giveth order for things past 4. Directs things hereafter to be followed 5. Changeth Right and Possessions of private Men. 6. Legitimateth Bastards 7. Establisheth Forms of Religion 8. Altereth Weights and Measures 9. Giveth Form of Succession to the Crown 10. Defineth of doubtful Rights whereof is no Law already made 11. Appointeth Subsidies Tallies Taxes and Impositions 12. Giveth most free Pardons and Absolutions 13. Restoreth in Blood and Name 14. And as the highest Court condemneth or absolveth them who are put upon their Trial. In short Ibid. all that ever the People of Rome might do either Centuriatis Comitiis or Tributis the same may be done by the Parliament of England which representeth and hath the Power of the whole Realm both the Head and Body For every Englishman is intended to be there present either in Person or by Procuration and Attorny of what preheminence state dignity or quality soever he be from the Prince be he King or Queen to the lowest Person of England And the Consent of the Parliament is taken to be every Man's consent As to its Power over both the Statute and Common Law of this Realm Rastal's Statutes fol. 546. 25 H. 8. c. 21. you will be best informed of it from the memorable words of an Act of Parliament itself viz. Whereas this Realm recognizing no Superiour under God but only the King hath been and is free from Subjection to any Man's Laws but to such as have been devised made and ordained within this Realm for the Wealth of the same or to such other as by Sufferance of the King and his Progenitors the People of this Realm have taken at their free Liberty by their own Consent to be used amongst them and have bound themselves by long Use and Custom to the Observance of the same not as to the Observance of the Laws of any Foreign Prince Potentate or Prelate but as to the Custom and antient Laws of this Realm originally established as Laws of the same by the said Sufferance Consents and Custom and none otherwise It standeth therefore with Natural Equity and Good Reason that all and every such Laws Humane made within this Realm by the said Sufferance Consents and Custom that the King and the Lords Spiritual and Temporal and the Commons representing the whole State of this Realm in the most High Court of Parliament have full Power and Authority not only to dispence but also to authorize some Elect Person or Persons to dispence with those and all other Human Laws of
Duke of Somerset in the Time of Ed. 6. was tried for Felony and Treason by his Peers upon an Indictment Id. 71. for it is the Suit of the King When a Lord of Parliament is tried by his Peers 1 Hen. 4.1 Id. 72. they shall not be Sworn to say their Verdict but they shall give their Verdict upon their Honour and are not charged but upon their Honours And 6 Maij 1628. Sir Wm. Jones's Rep. 154 155. It was ordered on the Question Nem. Dissen That the Nobility of this Kingdom and Lords of the upper House of Parliament are of antient Right to Answer in all Courts as Defendants upon Protestation of Honour only and not upon the common Oath An order of the House of Lords was in 1640. Cursus Cancel 112. That the Nobility of this Kingdom and Lords of the upper House of Parliament and the Widows and Dowagers of the Temporal Lords shall Answer in Chancery c. upon Protestation of Honour only but altho their Honour may bind their Conscience in Equity yet Evidence upon their Honour ought not to be admitted in any Court of Law And we must here Note That even Lords of Parliament or Peers of the Realm in giving Evidence to a Jury or in their Depositions in Chancery c. are to be Examined on Oath A Lord of Parliament shall have Knights upon his Trial in every Action 27 Hen. 8. f. 27. A Lord of Parliament may be Outlawed for Murder 27 Hen. 8. f. 17. If a Lord of Parliament makes a Rescous 27 H. 8.27 a Capias shall be taken out against him if the Sheriff return the Rescous otherwise it is in Case of Debt A Capias ad Satisfaciendum does not lyc against a Lord of Parliament 11 H. 4.15 27 Hen. 8.27 for the Law presumes that he has Assets An Attachment is not grantable by the Common Law Dyer 316. Statue Law Custom or Precedent against a Lord of Parliament and the Lord Cromwel by Order in the Parliament-Chamber was discharged of such Process In a Praemunire against a Lord of Parliament Arc. Parl. he ought to appear in his proper Person and not by Attorney unless he has a special Writ of Chancery De attornato faciendo CHAP. V. The Power of the House of Lords A Peer of the Realm being Indicted of Treason or Felony 4 Inst 23. or Misprision of Treason may be Arraigned thereof in Parliament a Lord Steward being appointed and then the Lords Spiritual shall make a Procurator for them and the Lords as Peers of the Realm during the Parliament are Judges whether the Offence be Treason c. that is supposed to be committed by any Peer of the Realm and not the Justices Vide a Letter sent by nine Lords Rush Col. 3. Stat. vol. 1. f. 737. Ant. 42. to the Parliament June 4 1642 who had gone from their House and repaired to the King at York wherein they say We do conceive that it is the apparent usual and inherent Right belonging to the Peerage of England that in the highest Misdemeanour whatsoever no Peer is to Answer to the first Charge but in his Place in his own Person and not upon the first Charge to come to the Barr. In 1553. primo Mariae Burn. His Ref. vol. 2. p. 253. The Bill of Tonnage and Poundage was sent up to the Lords who sent it down to the Commons to be reformed in two Provisoes that were not according to former Precedents How far this was contrary to the Rights of the Commons who now say that the Lords cannot alter a Bill of Money I am not able to determine Die Mercurij 25 Novembris 1692. It is Resolved upon the Question by the Lords Spiritual and Temporal that for the future when there shall be a Devision in the House upon any Question the Contents shall goe below the Barr and the Not Contents stay within the Barr And it is Ordered that this Resolution be added to the Roll of standing Orders of this House Die Lune 7. Decembris 1691. It is Ordered by the Lords Spiritual and Temporal in Parliament Assembled that for the future upon giving Judgment in any Cases of Appeals or Writs of Error in this House the Question shall be put for Reversing and not for Affirming And that this be added to the Roll of standing Orders 30. Jan. 1640. Rush Col. 3. part vol. 1 p. 165. Upon a Debate in the Lord's House touching the Power of conveying away of Honour it was Nemine contradicente Resolved upon the Question that no Person that hath any Honour in him as a Peer of this Realm may alien and transfer the same to any other Person See Sir B. Shower's Cases in Parliament 1.2 c. See many notable Judgments by the Lords at the Prosecution of the Commons Rush Col. passim Nalson and in later Times Error serra sue in Parliament Vid. Crom. 18. Error Vid. infra Parliament poet prendre Recognizance Brook 137. Error Error shall be sued in Parliament and the Parliament may take a Recognizance If a Judgment be given in the King's Bench 4. Inst 21. either upon a Writ of Error or otherwise the Party grieved may upon a Petition of Right made to the King in English or in French and his Answer thereto Fiat Jusstitia let Justice be done have a Writ of Error directed to the Chief Justice of the King's Bench for removing of the Record in praesens Parliamentum c. And hence it may be presum'd that Writs of Error in Parliament were originally Returnable before the Commons as well as the Lords See Yelverton's Rights of the Commons and Hales of Parliaments p. 18. to 23. When one sueth in Parliament to Reverse a Judgment in the King's Bench he sheweth in his Bill which he exhibiteth to the Parliament some Error or Errors whereupon he prayeth a Scire Facias Id. 22. The Proceeding upon the Writ of Error is only before the Lords in the Upper House Secundum Legem Consuetudinem Parliamenti The Case between Smith and Busby in a Writ or Error Resolved 2 Nalson 716. 'twas decidable in no other Court but in Parliament If any Question be moved in Parliament for Priviledge 4 Inst 363 or Precedency of any Lord of Parliament it is to be decided by the Lords of Parliament in the House of Lords as all Priviledges and other Matters concerning the Lords House of Parliament are November 1641. 2 Nalson 625. Resolved by the House Nemine contradicente that it belongs to the House of Peers by the antient Laws and Constitutions of this Kingdom to interpret Acts of Parliament in Time of Parliament in any Cause that shall be brought before them Julij 12. 1641. 2. Nalson 381. An order of the Lords for Relief of a Feme-Covert and her Children against a Husband refusing to Cohabit The Sentence pronounced by the Lords upon Sir Giles Mompesson Rushw Col. 27.28 and Sir Fracis Michel for Projectors Upon Complaints and Accusations of the Commons Selden's Judicature
c. 6 7. the Lords may proceed in Judgment against the Delinquents of what Degree soever and of what Nature soever the Offence be For where the Commons complain the Lords do not assume to themselves Trial at Common Law Q. Neither do the Lords at the Trial of a Common Impeachment by the Commons decedere de Jure suo for the Commons are then instead of a Jury and the Parties Answer and Examination of Witnesses are to be in their Presence Post 120. 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. Id. 98. Tho' the Lords refused to commit the Duke of Suffolk upon the Commons complaint of him of a common Fame of Treason yet when they accused him of a 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 viz. 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 Post 120. 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 secundum 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 are 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 Upper House have leave from the Lord Chancellor or Keeper Sir Simon d'Ewes Journal 527. Col. 2. to sit cover'd in the House but are alway uncover'd at a Committee 3. Car. 1. Petyt's Msscel Parliam 212 213. The Sentence of the Lords Spiritual and Temporal 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 or 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 in Particular both here and at Banbury And the Court of Star-Chamber ordered by the Lords to put the said Sentence in Execution out of Time of Parliament Id. 213. Vide a Sentence pronounced by the Lords Die Martis 26. Julij 1642. against one John Escot of Launceston in the County of Cornwall for speaking Scandalously of the Parliament in Rush Col. Vol. 1. f. 759 760. And likewise against John Marston Clerk Rector of St. Mary Magdalen in the City of Canterbury ibid. See divers particulars touching the Power and Jurisdiction of the House of Lords in Prynn's Plea for the House of Lords c. as also a Book printed Anno 1669. Entitled The Grand Question concerning the Judicature of the House of Peers Stated c. See also Sir M. Hales of Parliaments Pa. 138 139. and ibid 140 c. where Attendants on the upper House may be Members of the House of Commons Q. CHAP. VI. 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 assirmed by Mr. Lambard Lambard's Archeion 257 258. that Burgesses were chosen to the Parliament before the Conquest The antient Towns call'd Boroughs Littleton Sect. 164. are the most antient 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. Atkyn's 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 antient as the Nation itself and may in the Sense of Julius Caesar be accounted among the Aborigines 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 seperately but in conjunction with those other Estates which they could not otherwise legally have done if their Original and Commencement could have been shewn During the British Saxon Petyt's Preface to the antient Rights of the Commons c. p. 3. and Norman Governments the Freemen or Commons of England as now call'd and distinguish'd from the great Lords were pars essentialis constituens an essential and constitutent part of the Wittena Gemot Commune Concilium Baronagium Angliae or Parliament in those Ages It is apparent Id. 12. and past all Contradiction that the Commons in the Times of the Britons Vid. Ch. 1 ante 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
is chosen Co. 12.115 Vid. Towns 175 Vid. Sir S. d'Ewe's Jour passim Elsyng 153 Vid. Town 175. Vide Sir S. d'Ewe's Jeur. passim he in his Place where he first shall sit down shall disable himself and shall pray That they would proceed to a new Election When it appeareth who is chosen after a good Pawse he standeth up and sheweth what Abilities are required in a Speaker and that there are divers among them well furnish'd with such Qualities c. disableth himself and prayeth a new Choice to be made which is commonly answered with a full Consent of Voices upon his Name If the House generally give a Testimony of their Approbation Elsyng 153 4 Inst 8. Vid. Town 175. Vide Sir Simon d'Ewe's Jour passim two of the Members which for the most Part ware of the Council or chief Officers of the Court going to the Gentleman named and agreed to be Speaker take him from his Place and lead him unto the Chair Elsying says take him by the Arms and lead him to the Chair where being set they return to their Places After a while he riseth and uncover'd Elsyng 153 with humble Thanks for their good Opinion of him promiseth his willing Endeavours to do them Service After he is put into the Chair Co 12.115.4 Inst 8. then he shall pray them that with their Favors he may disable himself to the King that so their Expectations may not be deceived See Bohun ut Supra Then some and commonly he that first spake puts them in mind of the Day to present him c. Elsyng 153. Vid. Town 175. Sir Simon d'Ewes Jour passim So it was done by Sir William Knowls the Controller in the 43 Eliz. And the next Day Co. 12.115 Rush Coll. 480. Smyth's Common-wealth 80. or 2 or 3 Days after the Commons shall present the Speaker in the Upper House to the King where he shall disable himself again to the King and in most humble manner shall intreat the King to command them to choose a more sufficient Man Vide ante 265. aliter At the Day appointed Elsyng 156 Vid. Towns 175. his Majesty sitting on his Royal Throne and the Lords all in their Robes the Commons are called in who being come the Speaker is brought between two of them with low Obeysance to the Bar and so presented at the Bar to his Majesty The Speaker having made his Excuse the Lord Chancellor confers with the King and then telleth him That his Majesty doth approve the Commons Choice and will not allow of his Excuse Then the Speaker proceeds to his Speech But anciently he made first a Protestation as you may read in Elsyng 159 160. After he is allowed by the King Co. 12.115 Vide Rush Coll. 117. Vi. Smyths Common-wealth 80. Elsyng 164 then he shall make an Oration and in the Conclusion shall pray the four usual Petitions The Speaker's Speech is what it pleaseth himself having no Direction at all from the Commons touching the same making Petition to the King on behalf of the Commons some in general Words for all their ancient Priviledges and some in particular The Protestation of the Speaker consists of three Parts 4 Inst 8. Vi. Towns Coll. 4. 54 Rush Coll. 424. First That the Commons in this Parliament may have free Speech Vide Elsyng 164. as by Right and of Custom they have used and all their ancient and just Priviledges and Liberties allow'd to them Secondly That in any Thing he shall deliver in the Name of the Commons if he shall commit any Error no Fault may be arrected to the Commons and that he may resort again to the Commons for declaration of their true Intent and that his Error may be pardoned Thirdly That as often as necessity for his Majesties Service and the Good of the Commonwealth shall require he may by Direction of the House of Commons have Access to his Royal Person Some add a Fourth Modus tenend Parl. 35. 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 injoy 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 Eisyng 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 Sovereign Sir R. Atkin's 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 merely of Favour or may be refused them of Right 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 unfeign'd and sincere Heart to do them service The first Business in the House is ordinarily to read a Bill that was not pass'd in the last Parliament preceeding or some new Bill as in that of 10 Jac. 1. Scobel 5. Vide Sir Sir Simon d'Ewes Jour 43 44. 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 See the Form and Manner of Electing Paul Foley Esq to be Speaker Bohun's Collection of Debates p. 350 to 354 after the Censure of Sir John Trevor for a High Crime and Misdemeanor in receiving a Gratuity or Bribe of 1000 Guineas of the City of London on passing the Orphans Bill CHAP. XIV Business of the Speaker THE Mace is not carried before the Speaker Eisyng 153 until his Return being presented to the King and allow'd of The speaker sits in a Chair placed somewhat high Modus tenend Parl. 36. Smith 's Common-wealth 84. to be seen
and heard the better of all the Clerks of the House sit before him in a lower Seat who read Bills Petitions c. The Speaker's Office is when a Bill is read Modus tenend Parl. 37. Smith 's Common-wealth 86. Hakewel 138 139. Sir Simon d'Ewes Jour 43.44 as briefly as he may to declare the Effects thereof to the House That Day that the Speaker being approved by the King cometh down into the Commons House to take his Place the Custom is to read for that time only one Bill lest unpast the last Sessions and no more This is done to give him Seisin were as it 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 Note 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 Meeting of the House 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 Jour 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 Scobel 20. Vid. Tow. Col. 216.217 Vide Sir S. d'Ewes Jour passim Scobel 65. Petyr 's Misâ—ell 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. Râ—b Col. 66â— 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 See Sâ—â—dens Lise 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 Towns Col. 263. Vide Sir S. d'Ewes Jour 6â—â— Col. 1.2 Towns Col. 61. he with the whole House sell upon their Knees and so continued till she bid them stand up 35 Eliz. Mr. Speaker was sent for to the Court where the Queens Majesty her self gave him Commandment what to deliver to the House The Speaker was 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 Col. 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 Die Resolved Id. 1137. That it was a Breach of Priviledge of the House for the Speaker not to obey the Commands of the House and that it appeared the Speaker did adjourn the House by the Command of the King without the Consent of the House which is also a Breach of the Priviledge it was therefore ordered that this should be presented to His Majesty 1 Jac. 1. 1603. Ordered Scobel 65. Petyt 's Miscol Parl. 140. That it shou'd be precisely registred as the Judgment of the House that no Speaker from henceforth shou'd deliver a Bill whereof the House stands possessed to any whomsoever without Allowance and Leave But that he had Power and might either shew it or deliver a Copy if it seems meet to him But yet it was admitted Id. 142. that a Copy may be delivered or it may be shewed to His Majesty If upon Division of the House Hakewel 145. it appear that the Members are equal the Speaker hath always the casting Voice upon all Questions 44 Eliz. upon the Question Towns 321.322 Vide Sir S. d'Ewes Jour 683. Col. 2. Whether Mr. Speaker had a Voice It was said by Sir Walter Raleigh and confirmed by the Speaker himself That the Speaker is foreclosed of his Voice by taking of that Place which it had pleased them to impose upon him and that he was to be indifferent to both Parties He was seconded by Mr. Secretary Cecil The Speaker hath no Voice in the House Arc. Parl. 18. Smyth 's Common-wealth 86. Rush Col. 3. p. v. 1. p. 35. nor will they suffer him to speak in any Bill to move or disswade it It was resolved by Vote in the last Parliament says Mr. Harbottle Grimston in his Speech Nov. 9. 1640. That the Speaker refusing to put the Question being thereunto requir'd by the House or to adjourn the House upon any Command whatsoever without the Consent and Approbation of the House it self were Breaches and Violations that highly impeached our Priviledges Ordered Id. p. 42. That Mr. Speaker be intreated to be here this Afternoon viz. 10 Nov. 1640. to sit by at the great Committee of Irish Affairs and if there be Cause to resume the Chair Nov. 20. 1640. Id. p. 53. This Day the House ordered the Speaker should sit in the Afternoon Note The Speaker is said to be not only the Mouth but the Eyes and Ears of the House And hence it was That when King Charles I. commanded the Speaker on his allegiance to discover certain Transactions c. in the House he justly reply'd That he had neither Eyes to See Ears to Hear nor Mouth to Speak but as the House shall direct him See also several Letters Messages c. of that Prince to and by the
Speaker to the House in Rapin's History Vol. II Numb 57 c. CHAP. XV. Order to be observed in the House THE Litany is read the first Thing Towns 54. after the Speaker is set in the Chair So agreed upon the Motion of Mr. Speaker 13 Eliz. 1571. When the Speaker is set in his Chair Scobel 6. every Member is to sit in his Place with his Head covered No Member in coming into the House Ibid. or in removing from his Place is to pass between the Speaker and the Member then speaking nor may cross or go overthwart the House or pass from one Side to the other while the House is sitting 23 Eliz. 1580. Sir Suron a 〈◊〉 Jour 282. Col. 2. Upon a Motion made by Sir John Croft Comptroller of her Majesty's Houshold and allowed of by the whole House That Mr. Speaker and the Residue of the House of the better sort of Calling do alway at the rising of the Trouse depart and come forth in comely and civil sort for the Reverence of the House in turning about with a low Courtesie as they make at their coming into the House and not unseemly to thrust and throng out No Member is to come into the House with his Head covered Scobel 6. nor to remove from one Place to another with his Hat on nor is to put on his Hat in coming in or removing until he be set down in his Place 39 Eliz. None to enter the House with his Spurs on Town 101 181. Vide Sir S. d'Ewes Jour 550. Col. 1.623 Col. 1. Scobel 6. Vide Sir S. d'Ewes Jour 487. Col. 1. nor until he pay the Serjeant's Fees While the House is sitting no Man ought to speak or whisper to another to the End the House may not be interrupted when any are speaking but every one is to attend unto what is spoken in which Case Penalties have been imposed When any Member intends to speak Ibid. he is to stand up in his Place uncover'd address himself to the Speaker who usually calls such Person by his Name that the House may take Notice who it is that speaks Mr. Downold going about to speak about a Bill Town Coll. 224. the Speaker interrupted him and arose without further hearing him which he took in great Disgrace and told him He would complain of him the next Sitting If any Man in this House speak wisely Town Coll 252. we do him great wrong to interrupt him if foolishly let us hear him out we shall have the more Cause to tax him per Sccretary Cecil If more than one stand up at once Scobel Vide Sir S. d'Ewes Jour 434. Col. 1 2. the Speaker is to determine who was first up and he is to speak and the other sit down unless he who was first up sit down again and give way to the other or that some other Member stand up and acquaint the House that another up before him whom the Speaker calls and the House adjudge it so While one is speaking Ibid. Vid. Town Coll. 205. none else is to stand up or interrupt him until he have done speaking and be set down and then the other may rise up and speak observing the Rules 21 Junij 1604. Ibid. It was agreed for an Order That when Mr. Speaker desires to speak he ought to be heard without interruption if the House be silent and not in Dispute When the Speaker stands up Ibid. the Member standing up ought to sit down 27 April 1604. Scobel 8. Agreed for a Rule That if any Question be upon a Bill the Speaker is to explain but not to sway the House with Arguments or Dispute 4 Junij 1604. Scobel 8. Vide Sir S. d'Ewes Jour 335. Col. 1.640 Col 2. Agreed for an Order That whosoever hisseth or disturbeth any Man in his Speech by coughing spitting c. shall answer it at the Bar. 7 Maij 1607. Ordered upon the Question Ibid. That in going forth no Man shall stir until Mr. Speaker do arise and go before and then all the rest to follow after him He who first stands up to speak Co. 12.116 Smith's Common-wealth 84. he shall shall first speak without any Difference of Persons If in Debate Words be let fall that give Offence Exceptions should be taken the same Day and before such Member go out of the House or he who is offended may move that such Person may not go out of the House 'till he hath given Satisfaction in what was by him spoken And in such Case Scobel 81. after the present Debate is over the Words must be repeated by the Person excepting and in case he desire or the House command him he is to explain himself standing in his Place which if he resuse to do or the House be not satisfy'd with such Explanation then he is to withdraw 43 Eliz. 1601. Towns Coll 199. Vide Sir S. d'Ewes Jour 630. Col. 2. It was said by Secretary Cecil If any that sit next the Door be desirous to sit next the Chair to give his Opinion I will not only give him my Place but thank him to take my Charge We that sit here take your Favours out of Courtesie not out of Duty Tho' Freedom of Speech and Debates be an undoubted Priviledge of the House Scobel 72. yet whatsoever is spoken in the House is subject to the Censure of the House Febr. 19. 1592. Towns Coll. Ibid. 35 Eliz. After the Names of the Knights Citizens and Burgesses were read and declared to the Clerk of the Crown and entered in his Book they entered into the House The House being set Vide Sir S. d'Ewes Jour pas the Earl of Derby High-Steward for this Parliament came into the House to take their Oaths All being removed into the Court of Requests the Lord High-Steward sitting at the Door called the Knights and Burgesses of every County according to the Letters of their Names in the Alphabet Alphabetically every one answered as he was call'd and having answer'd departed thence to the Parliament House Door and there took the Oath of Supremacy given him by one of the Queen's Privy-Counsellors The Fee for entering his Name into the Serjeant's Book is Two shillings Town Coll. 51. the Rewards to the Door-Keepers Three shillings and Eight-pence the Fee for returning the Indenture Two shillings Febr. 7. 1588. Id. 15. 31 Eliz. This Day the House was call'd over and all those that did then sit in the House and were present at the calling of the same did thereupon severally answer to their Names and departed out of the House as they were called 31 Eliz. 1588. Sir Simon d'Ewes Jour 432. Col. 2. By Consent of the House upon the Motion of Sir Edward Hobby Admonition was given given by Mr. Speaker That Speeches used in this House by the Members of the same be not any of them made or used as Table Talk or in any wise delivered in Notes of writing to any Person or Persons whatsoever not being Members of this House
divided into two or more Questions as Dec. 2. 1640 the Debate about the Election of two Knights was divided into two Questions No Member in his Discourse in the House may mention the Name of any other Member then present Id. 30. Vide Smyth's Common-wealth 85. but to describe him by his Title or Addition as that Noble Lord that worthy Knight or by his Office as Judge Serjeant Gentleman of the long or short Robe or by his Place as the Gentleman near the Chair near the Bar or on the other side or that Gentleman that spake last or last save one or the like During any Debate any Member Memorials ut supr 30. tho' he have spoken to the Matter may rise up and speak to the Orders of the House if they be transgressed in Case the Speaker do not but if the Speaker stand up he is first to be heard and when he stands up the other must sit down 'till the Speaker sit down But if any Person rise up to speak to the Orders of the House in the midst of a Debate Ibid. 31. he must keep within that Line and not fall into the Matter itself if he do he may be taken down by the Speaker or any other Member calling to the Orders of the House While a Member is speaking to a Debate or Question he is to be heard out Id. 31. Vid. Town Coll. 205. and not taken down unless by Mr. Speaker as in some Cases he may or that he speak of such Matter as the House doth not think fit to admit A Matter upon Debate having been once finally determined by a Question Memorials in Hakeavel 33. ought not to be again brought into Dispute 27 Martij 1604. Ibid. Sir Edward Coke Attorney-General and Dr. Hone bring a Message from the Lords desiring a Conference about the Case of Sir Francis Godwyn Vide this Argument at large in the Appendix Upon this Message it was argued That now the Judgment having pass'd the House it could not nor ought to be reversed by them and upon the Question it was resolv'd There shou'd be no Conference 2 Apr. 1604. Ibid A Vote having passed some Days past That no Conference shou'd be admitted with the Lords the same Question was again moved but was carried in the Negative And it was then urged for a Rule That a Question having been once made and carried in the Affirmative or Negative cannot be questioned again but must stand as the Judgment of the House 4 Junij 1604. Id. 45 Agreed for a Rule If two stand up to speak to a Bill He who first stood up if it be known by Demand or otherwise is to be first heard 11 Nov. 1640. Id. 69. It is declared as a constant Order of the House That if a Witness be brought to the House the House sitting the Bar is to be down otherwise if the House be in a Committee In a Debate about an Election Id. 70. it was Resolved That the Party concern'd shall be heard to inform the House and then he is to go forth When any Complaint is made against a Member Id. 71. or Exceptions taken to any Thing spoken by him after he hath been heard to explain himself if he desire or the House command it which is usually done by him standing in his Place if the House be not satisfied but sall into Debate thereof such Member is to withdraw The Members of the lower House came to the Lords upon a Conference Town Coll. 311. as they were sitting at the Table and going to the upper End thereof spake When any Bills or Messages are brought from the lower House to be presented to the upper House the Lord Keeper Towns 95. Vide Sir S. d'Ewes Jour 585. and the rest of the Lords are to rise from their Places and to go down to the Bar and there meet such as come from the lower House and from them to receive in that Place their Messages or Bills But when any answer is to be deliver'd by the Lord Keeper in the Name and behalf of the upper House Ibid. to such Knights and Burgesses as come from the lower House the said Knights and Burgesses are to receive the same standing toward the lower End of the House and the Lord Keeper is to deliver the same with his Head covered and all the Lords are to keep their Places In the Answer of the Commons House of Parliament to King James his Objection in Sir Francis Goodwyn's Case 3 Apr. 1604. Memorials ut supra 33 34. the Objection being That they refuse Conference with the Lords The Answer is in these Words Concerning our refusing Conference with the Lords there was none desired 'till after our Sentence passed and then we thought that in a Matter private to our own House which by Rules of Order might be by us revoked we might without any Imputation refuse to confer Orders and Resolves of the House taken out of the third Volume of Mr. Rush worth's Collections Part 1. 2 Apr. 1604. Id. 71. A Rule that a Question being once made and carried in the Affirmative or Negative cannot be questioned again but must stand as a Judgment of the House the Case of Sir Francis Goodwyn and Sir John Fortescue See at the End of the House of Commons Proceedings about the Aylesbur-men 9 Nov. 1640. Id. 38. Ordered that the general Order for those that are double returned shall not bind Mr. now extra Regnum 10 Nov. 1640. Id. 41. Declared in the House that at the naming a Committee if any Man rise to speak about the same the Clerk ought not to write down any more Names whilst the Member standing up is speaking Ibid. Id. 42. Declared that when a Business was begun and in Debate if any Man rise to speak to a new Business any Member may but Mr. Speaker ought to interrupt him 11 Nov. 1640. Id. 44. That whosoever shall go forth of the House to a Conference in a confused manner before Mr. Speaker shall forfeit 10 s. and that the Reporters ought to go first to take their Places at Conferences 25 Nov. 1640. Id. 60. Ordered that when any Message is to go up to the Lords none shall go out of the House before the Messenger 26 Nov. 1640. Id. 61. That neither Book nor Glove may give any Man Title or Interest to any Place if they themselves be not here at Prayers 28 Nov. 1640. Id. 66. Ordered that if any one be chosen a Member of this House and his Writ not yet returned he may notwithstanding be admitted to the Sacrament to Morrow delivering a Ticket of his Name and the place for which he serves 4 Dec. 1640. Id. 83. Ordered that whosoever does not take his Place when he comes into the House or removes out of his Place to the Disturbance of the House shall pay 12 d. to be divided between the Serjeant and the Poor and whosoever speaks so loud in the House when any Bill or other Matter is reading as to
no Person who shall hereafter come to the Possession of this Crown shall go out of the Dominions of England Scotland or Ireland without Consent of Parl. 8. That no Person who has any Office under the King Note or receives a Pension from the Crown shall be capable of serving as a Member of the House of Commons With divers other Resolves for better securing the Rights and Liberties of the People on which the Stat. 12. and 13. W. 3. c. 2. was made CHAP. XVII Passing of Bills See for this a MS. Discourse penes W. Bohun Journal Dom. Com. ON the 27th of July 1660 it was represented to King Charles the Second That by the constant Course of Parliament they have used to receive Acts of Grace and such Bills as concern the Redress of Grievances and Confirmation of the Subjects Liberties before they present Bills of Aid or Supply but now in Confidence of His Majesty c they tender a Money-Bill c. i. e. before a Redress of Grievances All Bills take effect and work from the Beginning of the Parliament or Session Hob. 111.33 H. 6.18 Bro. tit Parl. 86. tit Relation 35. Plow 79. Town Col. 209. except it be otherwise ordained by the Act itself 43 Eliz. 1601. while there were divers Disputes about a Bill Mr. Fleming the Queen's 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 22.115 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 always sent in Parchment fairly ingrossed Publick Bills are in due Course to be preferred in Reading and Passing before Private And of Publick Ibid. Col. 12.116 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 Town Col. 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 Ibid. 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 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 Pause 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 The 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 Sometimes reading the Bill it self Hakewel 137. Vido Scobel 42. especially upon the Passage of a Bill when it hath been much alter'd by the Commitees so that thereby it differeth very much from the Breviat When he hath open'd the Effect of the Bill he declareth to the House Id. 138. 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 Lords House and one below Id. 138. Vid. Toâ— Col. 29 44 126. Vide Sir Simon d'Ewes Jour 91. Col. 2. 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 Hakewel Ibid. The usual Course is to spend the Morning before the House grow full Id. 139. in the first Readings and to defer the second or third Reading till the House grow full All Men of Law know that a Bill Town Cal. 238. which is only expository to expound the Common Law doth enact nothing neither is any Proviso good therein No Knight Col. 12.116 Citizen 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 too 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
Bill is engrossed the Clerk ought to endorse the Title thereof upon the back of the Bill and not within the Bill in any Case Ibid. So ought likewise such Bills as come from the Lords to have Titles endorsed upon the back of the Bill and not within After a Bill hath been committed Id. 151. and is reported it ought not in an ordinary Course to be committed but either to be dash'd or ingrossed and yet when the Matter is of Importance it is sometimes for special Reasons suffer'd but then usually the Re-commitment is to the same Committee About two or three Days after the Bill is thus order'd to be engrossed Id. 152. and is accordingly engrossed it is offer'd by the Speaker to be read a third Time for the Passage thereof For the most part the Speaker putteth not any one Bill to the Passage by itself alone Id. 153. but stayeth till there be divers Bills ready engross'd for the third Reading and when he hath a convenient Number which may be five or six rather less than more then he giveth Notice to the House That he purposeth next Day to offer up some Bills for the Passage and desireth the House to give special Attendance for that purpose and then the Day following he doth accordingly put them to the third Reading First private Bills until the House be grown to some fulness and then he offereth to be read the publick Bills which are engrossed It hath at some times been order'd Ibid. That for the preventing of carrying of Bills with a few Voices that no Bills shou'd be put to the Passage until Nine of the Clock at which time the House is commonly full or shortly after When the Bill is read the third Time Id. 153 the Clerk delivereth it to the Speaker who reads the Title thereof and openeth the Effect of the Bill and telleth them That the Bill hath now been thrice read and that with their Favours he will put it to the Question for the passing but pawseth a while that Men may have Liberty to speak thereto for upon the third Reading the Matter is debated afresh and for the most part it is more spoken unto this Time than upon any of the former Readings When the Argument is ended Id. 154. the Speaker still holding the Bill in his Hand maketh a Question for the Passage in this sort As many as are of Opinion that this Bill shou'd pass say Yea c. If the Voice be for the Passage of the Bill Ibid. the Clerk ought to make a Remembrance thereof in his Journal if otherwise then his Remembrance must be accordingly made Breck Abr. f. Edit 119 n. 4. Upon the Bill thus passed if it be originally exhibited in the House of Commons the Clerk ought to write within the Bill on the top toward the right Hand Soit baille aux Seigneurs Let it be deliver'd to the Lords If the Bill passed be originally begun in the Lords House Brook 119.4 then ought the Clerk to write underneath the Subscription of the Lords which always is at the foot of the Bill A cest Bill les Commons sont assentus i. e. To this Bill the Commons have assented 19 Dec. 1584. Sir Simon d'Ewes Jour 344. Col. 2. 27 Eliz. The House of Commons taking Exceptions about endorsing of Bills in the upper part of them whereas it ought to be done at the neither and lower part the Lords did very respectfully take away their said Grievance by the alteration of the Indorsinents aforesaid according to the usual and ancient Form No Bill upon the third Reading Hak. 156. for the Matter or Body thereof may be recommitted but for some particular Clause or Proviso it hath been sometimes suffered but it is to be observ'd as a Thing unusual after the third Reading It hath been much doubted Hakewel 157. whether when a Bill is in Debate for the Passage it ought not to receive the Resolution of the House the same Day wherein it is first offer'd to the Passage but Precedents are where the Case being of some Importance and the Debate growing long the Argument hath been put over to the next Day In which Case he that hath already spoken to the Bill the first Day may not again speak the Second no more than he may speak twice in one Day where the Argument is not deferred to another Day If a Bill be rejected Id. 158. the same Bill may not be offer'd to the House again the same Session but if it be alter'd in any Point material both in the Body and in the Title it may be receiv'd the second Time In the Time of the Reading of a Bill Ibid. the House should not be interrupted with any other Business and yet in 1. Eliz. the House adjourn'd itself till the next Day after the Bill for Sealing Clothes was half read only to be present at the Conference about Religion in Westminster-Abby Sometimes the House conceiving much Offence against some Bills Ibid. doth not only order them to be rejected but to be torn c. in the House When a Bill is thrice read Id. 159. and pass'd in the House there ought to be no further Alteration thereof in any Point When the Speaker hath in his Hands a convenient Number of Bills ready passed Id. 175. as five or six or therabouts he then putteth the House in Mind of sending them up to the Lords and desireth the House to appoint Messengers who accordingly do appoint some one principal Member of the House for that Purpose to whom the Bills are delivered in such Order as he ought to present them to the Lords which is done by Direction of the Speaker except the House be pleased to give special Direction therein The Order which hath usually been observed in ranking them is First Id. 176. To place those that came originally from the Lords Secondly Those that being sent up to the Lords from the Commons House were sent back to be amended Thirdly Publick Bills originally coming from the Commons House and these to be marshalled according to their Degrees in Consequence Lastly Are to be placed private Bills in such Order as the Speaker pleaseth Many Times the House with a Purpose especially to grace some one Bill sendeth it alone Ibid. with a special Recommendation thereof The Messenger for this Purpose is usually attended by thirty or forty of the House as they please and are affected to the Business The principal Messenger Id. 177. who delivers the Bills to the Lords coming in the first Rank of his Company to the Bar of the Lords House with three Congies telleth the Lords That the Knights Citizens and Burgesses of the Commons House have sent unto their Lordships certain Bills and then reading the Title of every Bill as it lieth in Order he so delivereth the same in an humble Manner to the Lord Chancellor who of Purpose cometh to receive them Bills sent from the Lords to the Commons House Ibid. if they be ordinary
Bills are sent down by Serjants at Law or by two Doctors of the Civil Law being Masters of the Chancery and Attendants in the Vpper House accompanied sometimes with the Clerk of the Crown an Attendant there Bills of greater Moment are usually sent down by some of the Judges Assistants there Id. 178. 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 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 called for When Bills are thus passed 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 deferred 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'Ewe's 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 Queen's Consent is not required for the passing of it but as it is implied in 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 Queen's express Consent though in different Words is always requisite February 9. Id. 127. 1597. 39. Eliz. Her Majesty gave her Royal Assent to twenty four publick Acts and nineteen private and refused forty eight which had passed both Houses If it be a publick Bill Towns 13. to which the King assenteth the Answer is Le Roy le veult in English The King wills it If a private Bill allowed by the King the Answer is Soit fait come il est desire i. e. Be it done as is desired If a publick Bill which the King forbears to allow Le Roy se avisera i. e. The King will consider To the Subsidy Bill Id. 12. Le Roy remercie ses loyaux Subjets accept lour Benevolence ainsi le veult i. e. The King thanks his loyal Subjects accepts their Benevolence and so wills it To the General Pardon Towns Col. 13.49 Sir Simon d'Ewe's Jour 467. Gol. 2. The Assent is thus Les Prelates Seigneurs Commons encest Parliament assembles an nom de toutes vous autres Subjets remercient tres humblement vostre Majestie 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 field 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 though 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 tendered the Speaker may refuse it Until the Bill be open'd Id. 42. no Man may speak to it An Act was read Towns c. 187. to which no Man offered to speak Whereupon Mr. Speaker stood up and said That if no Man speak it must be ingrossed i. e. Silence gives Consent It is the usual Rule of the Law Towns Col. 134. That where the Numbers of the Affirmative and Negative are equal Semper presumetur pro negante The Negatives by Custom are to carry it i. e. That the former Law is not to be changed 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 before it can 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 Ibid. When a Bill has been read the second Time and opened 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 any more than once that Day and then he may speak as often as it is read Id. 58. 23 Junii 1604. It was agreed for a Rule If a Bill be continue in Speech from Day to Day one may not speak twice to the Matter of the same Bill Note His. Refor Vol. I. p. 144. A Bill was read in the House of Lords four Times Quere if in one Day CHAP. XVIII Concerning Committees A Committee of either House ought not by Law to publish their own Refults Rush Part. 3. Vol. 2. p. 74. neither are their Conclusions of any Force without the Confirmation of the House which hath the same Power of controuling them as if the Matter had never been debated Committees are such as either the Lords in the Higher House Sir Tho. Smyth 's Common-Wealth 75. or Commons 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 advantageous to the King and the House Rush Col. 557. for that Way leads most to the Truth And it is a more free and open Way 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'Ewe 's Jour 186. it is chiefly for Amendment or Alteration thereof after it hath been penned and put into the House by some one or
James the First the House being desirous to have a Bill forth with passed declared That the Royal Assent to one Bill or more did not dissolve the Session without some special Declaration of his Majesty's Pleasure to that Purpose 1 2 Phil. Mar. The King and Queen came of Purpose into the Parliament House Ibid. to give their Assent to Cardinal Pool's Bill and resolved upon the Question by the whole House That the Session was not thereby concluded but they might proceed in their Business notwithstanding the Royal Assent given But for more Security it is usual to insert a Proviso to that Purpose If there be divers Sessions in one Parliament Arc. Parl. 93. 〈◊〉 Jour 7.12 â—b and the King signs not a Bill till the last there all is but one and the same Day and all shall have relation to the first Day of the first Session Post 336. and the first Day and the last are but one Parliament and one and the same Day unless special Mention be made in the Act when it shall take its Force See Touching the Commencement Prorogation and Dissolution of several Parliaments from the Beginning of Edward III. to the End of Richard III. in Cotton's Records per Totum and from the Beginning of Edward VI. in Hale's Parliaments pag. 107 to 110. and pag. 142 143 c. Upon a Prorogation of the Parliament On a Prorogation Bills to continue in Statu quo Burnet 's Reformation Vol. I. pag. 276. Journal Dom. Com. 15 May 1540. 32 Hen. 8. to the 25th a Vote passed That their Bills should remain in the State they were in and upon their next Meeting they went on accordingly On the 18th of February 1666 the Parliament was prorogued till the 10th of October 1667. the King present Memorandum That his Majesty by Proclamation 1 Siderf 338. dated 26 June 1667. Ann. 19. of his Reign summon'd his Parliament to meet on the 25th of July following by Reason of the War against the Dutch then in Being On which Day they met and adjourned at his Majesty's Appointment to the 29th of the same Month on which Day a Peace being then concluded the Parliament was by his Majesty's Appointment prorogued to the 10th of October as aforesaid A Parliament may be summon'd by Proclamation to meet before the Day to which they are prorogued Anno Dom. 1628. Rush Vol. I. pag 537. 4 Car. 10 April Mr. Secretary Cook delivered this Message from the King That his Majesty desired this House not to make any Recess these Easter-Holidays that the World may take Notice how earnest his Majesty and we are for the publick Affairs of Christendom the which by such a Recess would receive Interruption But This Message for Non-recess was not well pleasing to the House Sir Robert Phillips first resented it Post 366. and too Notice that in 12 18 Jac. upon the like Intimation the House resolved it was in their Power to adjourn itself or sit Hereafter said he this may be put upon us by Princes of less Piety Let a Committee consider hereof and of our Right herein and make a Declaration And accordingly this Matter touching his Majesty's Pleasure about the Recess was referred to a Committee and to consider the Power of the House to adjourn itself to the End that it being now yeilded unto in Obedience to his Majesty it might not turn to Prejudice in Time to come Sir Edward Coke spoke to the same Purpose and said I am as tender of the Privileges of this House as of my Life They are the Heart-Strings of the Commonwealth The King makes a Prorogation but this House adjourns itself The Commission of Adjournment we never read but say this House adjourns itself If the King write to an Abbot for a Corody for a Valet if it be ex rogatu though the Abbot yeilds to it it binds not Therefore I desire that it be entered that this is done ex rogatu Regis Hereupon a Message was sent to the King That the House would give all Expedition to his Majesty's Service notwithstanding their Purpose of Recess To which Message his Majesty returned this Answer That the Motion proceeded from himself in regard of his Engagement in the Affairs of Christendom wished them all Alacrity in their Proceedings and that there be no Recess at all A Message from the King by the Speaker Ibid. pag. 608. same Year That his Majesty commands for the present they adjourn the House till To-morrow Morning and that all Committees cease in the mean Time And the House was accordingly adjourned On Wednesday February 25. the same Year both Houses by his Majesty's Command adjourned themselves until Monday Morning the 2d of March. Monday Ibid. pag. 660. and Appendix pag. 9. 2d of March the Commons meet and urged the Speaker to put the Question who said I have a Command from the King to adjourn till the 10th of March and put no Question endeavouring to go out of the Chair was notwithstanding held by some Members the House foreseeing a Dissolution till a Protestation was published in the House Hereupon the King sent for the Serjeant of the House but he was detained the Door being locked Then he sent the Gentleman-Usher of the Lords House with a Message and he was refused Admittance till the said Votes were read And then in much Confusion the House was adjourned till the 10th of March according as it was intimated from his Majesty In Mr. Mason of Lincoln's Inn his Argument for Sir John Elliot he said the second Charge in the Information against him was the Contempt to the Command of the King's Adjournment Jac. 18. It was questioned in Parliament whether the King can adjourn the Parliament although it be without doubt that the King can prorogue it And the Judges resolved That the King may adjourn the House by Commission and 27 Eliz. it was resolved accordingly But it is to be observed and wondered Rush Vol. I. in Appendix pag. 48. that none was then impeached for moving that Question And it is to be noted that they resolved that the Adjournment may be by Commission but did not resolve that it may be by a verbal Command signified by another and it derogates not from the King's Prerogative that he cannot so do no more than in the Case of 26 H. 8. c. 8. that he cannot grant one Acre of Land by Parol The King himself may adjourn the House in Person or under the Great Seal but not by verbal Message for none is bound to give Credit to such Message but when it is under the Great Seal it is Teste meipso And if there was no legal Command then there can be no Contempt in the Disobedience of that Command In this Case no Contempt appears by the Information for the Information is that the King had Power to adjourn Parliaments Then put the Case the Command be that they should adjourn themselves this is no Pursuance of the Power which he is supposed to have
The House may be adjourned two Ways to wit by the King i. e. by Writ or by the House itself the last is their own voluntary Act which the King cannot compel for Voluntas non cogitur Note Rush 3 Part Vol. I. pag. 385. Vnder the Number of forty Members the House of Commons is not reputed a House so as to make an Adjournment CHAP. XXII The proper Laws and Customs of Parliament THE Laws 4 Inst 50. Customs Liberties and Privileges of Parliament are better to be learned out of the Rolls of Parliament and other Records and by Precedents and continual Experience then can be expressed by any one Man's Pen. If an Ordinance only be entered in the Parliament Roll Sir William Jones pag. 104. and it hath the Reputation and Use of an Act of Parliament that makes it an Act of Parliament If any doubt be conceived upon the Words or Meaning of an Act of Parliament Rush Vol. 3. pag. 77 78. it is good to construe it according to the Reason of the Common Law When Laws shall be altered by any other Authority Ibid. pag. 653. than that by which they were made says King Charles the First in his Speech at Newark to the Inhabitants of Nottingham 1642. your Foundations are destroyed As every Court of Justice hath Laws and Customs for its Directions 4 Inst 15. some by the Common Law some by the Civil and Canon Law some by peculiar Laws and Customs c. so the High Court of Parliament suis propriis Legibus Consuetudinibus subsistit It is Lex Consuetudo Parliamenti Ibid. that all weighty Matters in any Parliament moved concerning the Peers of the Realm or Commons in Parliament assembled ought to be determined adjudged and discussed by the Course of Parliament and not by the Civil Law nor yet by the Commons Laws of this Realm used in more inferior Courts which was so declared to be secundùm Legem Câ—nsuetudinem Parliamenti concerning Peers of the Realm by the King and all the Lords Spiritual and Temporal and the like pari Ratione is for the Commons for any Thing moved or done in the House of Commons and the rather for that by another Law and Customof Parliament the King cannot take Notice of any Thing said or done in the House of Commons but by the Report of the House of Commons and every Member of Parliament hath a judicial Place and can be no Witness And this is the Reason that Judges ought not to give any Opinion of a Matter of Parliament because it is not to be decided by the Common Laws but secundùm Legem Consuetudinem Parliamenti and so the Judges in divers Parliaments have confessed And some hold That every Offence committed in any Court punishable by that Court must be punished proceeding criminally in the same Court or in some higher and not in any inferior Court and the Court of Parliament hath no higher By the ancient Law and Custom of Parliament Id. 14. a Proclamation ought to be made against being armed against Games Plays and strange Shews c. during the Parliament that the Parliament may not be disturbed or the Members thereof who are to attend arduous and urgent Business be not withdrawn Dec. 15. 1597. Resolved Towns Col. 116. Vide. Sir Simon d'Ewe's Jour 505. Col. 1. according to the ancient Custom of the House That all the Members of the same which did speak against passing of the Bill should go forth of the House to bring the Bill into the House again together with the Residue of the Members which went out before with the passing of the said Bill All the Members of the House being gone forth except Mr. Speaker and the Clerk Mr. Controller brought in the Bill in his Hand accomanied with all the Members of the House and delivered the said Bill to Mr. Speaker 17 Dec. 1597. The same Ceremony on the like Occasion omitted Id. 117. Sir Simon d'Ewe's Jour 574. Col. 2. upon a Motion of the Speaker and ordered accordingly upon the Question 18 Dec. 1601. Towns 332. As the Speaker was coming to the House in the Morning the Pardon was delivered unto him which he took and deliver'd it to the House which they sent baek again because it was not brought according to Course The Subsidy of the Clergy was sent in a Roll according to the usual Acts Id. 333. To which Sir Edward Hobby took Exceptions because it was not sent in a long Skin of Parchment under the Queen's Hand and Seal so it was sent back and then the other was sent Si les Commons grant Poundage pur quatre Ans Brook 119.4 Crompt 8. les Seigneurs grant nisi pur deux Ans le Bill ne serra re-bayl al Commons mes si les Commons grant nisi pur deux Ans les Seigneurs pur 4 Ans la ceo serra redeliver al Commons Et in cest case les Seigneurs doient fair un Scedule de lour Entent ou d'endorcer le Bill en cest Form Les Seigneurs ceo assentont pur durer pur quatuor Ans Et quant les Commons ount le Bill arere ne volent assenter a ceo ceo ne poet estre un Act mes si les Commons volent assenter donques ils endorce lour Respons sur le Margent de bass deins le 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 it 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 Privilege of this House hath always been first Vide Sir Simon d'Ewe's Jour 483. Col. 2. 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 should stand upon our Privilege seeing the Burden resteth upon us as the greatest Number per Francis Bacon 35 Eliz. 1592. The Lord Chancellor in Parliament offered the Commons a Writ to deliver their Burgess but they refused it Petyt 's Miscel Parl. 4. in Margin 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. â—3 E. 3. n. Cot. Records f. 17. n. 6 9. That when any new Device is moved on the King's behalf in Parliament for his Aid or the like the Commons may answer That they tender the King's Estate and are ready to aid the same only in this Device they dare not agree without Conference with their Countries Whereby it appeareth That such Conference is warrantable by the Law and Custom of Parliament Mar. 19. Journal Dom. Com. 1677. It was conceived by the Commons that according to the antient Course and Method of Transactions between the two Houses when a Bill with Amendments is sent from either House to the other by Messengers of their own the House that sends them gives no Reasons of their Amendments but the House to whom it is sent if they find Cause to disagree do use to give Reasons for their Dissent to every particular Amendment every one of them is supposed to carry the Weight of its own Reason with it until it be objected against May 28. Ibid. 1678. A Paper of Reasons against a Bill viz. for wearing Woollen being printed and delivered at the Door was committed it being irregular for Reasons to be printed and published against a publick Bill before a Petition be exhibited to the House against the Bill It is to be observed 4 Inst 14. though one be chosen for one particular County or Borough yet when he is return'd and sits in Parliamment he serveth for the whole Realm for the End of his coming thither as in the Writ of his Election appeareth is general ad faciendum consentiendum c. If Offences done in Parliament might have been punished elsewhere 4 Inst 17. it shall be intended that at some Time it would have been put in Ure As Usage is a good Interpreter of Laws Coke Lit. 81. b. so Non-usage where there is no Example is a great Intendment that the Law will not bear it Not that an Act of Parliament by Non-user can be antiquated or lose his Force Coke Lit. 81. b. but that it may be expounded or declared how the Act is to be understood There is no Act of Parliament but must have the Consent of the Lords 4 Inst 25. the Commons and the Royal Assent of the King and whatsoever passeth in Parliament by this threefold Consent hath the Force of of an Act of Parliament The Difference between an Act of Parliament Ibid. and an Ordinance in Parliament is for that the Ordinance wanteth the threefold Consent and is ordained by one or two of them Some Acts of Parliament are introductory of a new Law Ibid. and some be declaratory of the ancient Law and some be of both kinds by addition of greater Penalties or the like Ibid. Some Acts are general and some private or particular All Acts of Parliament relate to the first Day of Parliament 33 H. 6. f. 18. a. 33 H. 8. Brook Parl 86 Relation 35. 4. Inst 28. Vide Sir Simon d'Ewe 's Jour 550. Col. 1 2. if it be not otherwise provided by the Act. The House of Commons is to many Purposes a distinct Court and therefore is not prorogued or adjourned by the Prorogation or Adjournment of the Lords House but the Speaker upon the Signification of the King's Pleasure by the Assent of the House of Commons doth say This Court doth Prorogue or Adjourn itself And then it is prorogued or adjourn and not before 39 Eliz. 1597. Towns Col. 101.102 Vide Sir Simon d'Ewe 's Jour 550. Col. 1 2. Nov. 5. Through a meer Mistake and Error of the Speaker and themselves the House conceived themselves to have been Adjourned by the Lord Keeper the first Day of this Parliament to this present Day When it is dissolved Ibid. the House of Commons are sent for up to the Higher House and there the Lord Keeper by the King's Commandment dissolveth the Parliament and not before A Parliament cannot be discontinued or dissolved but by Matter of Record Hutton 62. and that by the King alone The King at the Time of the Dissolution ought to be there in Person 4 Inst 28. or by Representation for as it cannot begin without the Presence of the King either in Person or by Representation so it cannot end or be dissolved without his Presence either in Person or by Representation Nihil enim tam Conveniens est naturali aequitati Bracton unumquodque dissolvi eo ligamine quo ligatum est By the Statute of 33 H. 8. c. 21. Ibid. it is declared by Act of Parliament That the King's Letters Patents under his Great Seal and signed with his Hand and declared and notified in his Absence to the Lords Spiritual and Temporal and Commons assembled in the House of Parliament is and ever was as good Strength and Force as if the King's Person had been there personally present and had assented openly and publickly to the same In the Lords House the Lords give their Voices from the puisne Lord seriatim 4 Inst 34.35 by the Word of Content or Not Content The Commons give their Voices upon the Question by Yea or No. Every Lord Spiritual and Temporal 4 Inst 43. Crompton 4. b. and every Knight Citizen and Burgess shall upon Summons come to the Parliament except he can reasonably and honestly excuse himself or else he shall be amerced c. that is respectively a Lord by the Lords and one of the Commons by the Commons By the Statute of 6 Hen. 8. c. 16. no Knight Ibid. Crompton 4. b. Citizen or Burgess of the House of Commons shall depart from the Parliament without Licence of the Speaker and Commons the same to be entered of Record in the Book of the Parliament upon Pain to lose their Wages Sickness is no Cause to remove any Knight 4 Inst 8. Citizen or Burgess of the House of Commons 18 Eliz. 1575. Sir Simon d'Ewe 's Jour 244. Col. 2. Resolved by the House That any Person being a Member of the same and being either in Service of Ambassage or else in Execution or visited with Sickness shall not in any Ways be amoved from their Place in this House nor any other to be during such Time of Service Execution or Sickness elected 31 Eliz. 1588. Id. 439. It was assented to by the whole House That none after the House is set do depart before the rising of the same House unless he do first ask Leave of Mr. Speaker on pain of paying Six Pence to the Vse of the Poor If a Lord depart from Parliament without Licence 4 Inst 44. it is an Offence done out of the Parliament and is finable by the Lords And so it is of a Member of the House of Commons he may be fined by the House of Commons It doth not belong to the Judges to judge of any Law Custom 4 Inst 50. Rot. Parl. 31 H. 6. n. 27. or Priviledge of Parliament Cardinal Wolsey
de Concilio tempore Parliamenti pro Reditu unius Domus in London Rex respondet non videtur honestum quòd illi de Concilio suo di stringantur Tempore Parliamenti sed alio Tempore c. Bogo de Clare and the Prior of Trinity Ibid. Townso Col. 255. Sir Simon d'Ewe's Jour 655. Col. 1 flys he was fined 20000 Marks 4 iust 24. for serving a Citation on the Earl of Cornwall in the Time of the Parliament committed to the Tower and Bogo at whose Procurement it was done fined in two thousand Marks to the King and a thousand Pounds to be paid to the Earl And yet the serving of the said Citation did not arrest or restrain his Body and the same Privilege holdeth in Case of Subpoena or other Process out of any Court of Equity Rex mandavit Justiciariis suis ad Assisas Ibid. c. quod super sedeant captioni corundem 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 Sir Simon d'Ewe's Jour 435. Col. 1. Ibid. Scobol 110. Vid. Sir Simon d'Ewe's Jour 249. Col. 2. nor Subpoena Divers Persons committed to Prison for serving a Citation on John de Thorsby Clerk of the Parliament 22 Febr. 6 Ed. 6. Ordered If any Member require Privilege for himself or his Servant upon Declaration thereof to the Speaker he shall have a Warrant sigu'd by the Speaker to obtain the Writ 22 Martii Scobel 110. 18 Jac. 1. It was resolved That no Protection under any Man's Hand of this House is good 29 Jan. 1557. Id. 89. 4 5 Ph. Mar. Thomas Ennys Burgess for the Borough of Thrusk complained that a Subpoena was delivered him to appear in Chancery and required the Privilege of the House whereupon Sir Clement Higham and Mr. Recorder of London were sent to the Lord Chancellor to revoke the Process 27 Eliz. One Kyrl having caused a Subpoena out of the Star-Chamber to be served on a Member of the House of Commons and for want of Appearance Id. 90. Vid. Towns Col. 213. Sir Simon d'Ewe's Jour 438. Col. 1 2. 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 Maii 1604. Scobel 90 The Serjant was sent to attach the Body of one who served a Subpoena on the Person of Sir Robert Needham a Member 7 May 1607. Ibid. The Serjeant was sent for Edward Throgmorton for serving a Subpoena on Sir Oliver Cromwel 14 Maii 19 Jac. 1. Id. 91. 1. 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 Privilege of this House 4 Maii 1607. Ibid. A Subpoena out of the Exchequer being served on Sir R. Pawlet a Member the House granted Privilege and ordered 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. Ibid. Jac. 1 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 Privilege and Napper who served the Subpoena was committed 39 Eliz. Mr. Combs and Mr. Henry Powle Towns Col. 109. Vid. Sir Simon d'Ewe's 546. Col. 2. Members of this House being served with a Subpoena ad testificandum by Mrs. Ann Wye the Serjeant of the House was ordered 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 testificandum 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'Ewe's Jour 651. Col. 1. Id. 257. 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 And because Christopher Kennel who served it professed Ignorance he was only adjuged to three Days Imprisonment in the Custody of the Serjeant and to pay his Fees The same Order with William Mackerless Ibid. Vid. Sir Simon d'Ewe's Jour 656. who served a Subpoena on Mr. Pemberton a Member at the Suit of one Mackerness 44 Eliz. 1601. Mr. Philips Col. 1 2. Sir Simon d'Ewe's Jour 655. Col. 1 2. 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 should be sent for by the Serjeant Vide plus de hi Sir Simon d'Ewe's 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 April 1593. The Serjeant at Mace Id. 921 Vide Sir Simon d'Ewe's Jour 519. who arrested Mr. Neal a Member upon on 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 ordered to deliver them over to the Lieutenant of the Tower 13 Maii 1607. Ibid. Nicholas Allen an Attorney and Palmer at whose Suit Mr. Martin a Member was Out-law'd ordered 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 Ibid. a Member the House ordered to have Privilege 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 Id. 93. for Non-Appearance it was ordered That if the Issues were not discharged before that Night the Parties deliquent to be brought next Day to the Bar by the Serjeant 14 Maii Ibid. 1576. 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 privileged and the Party that gave the Warning was summoned to appear at the Bar next Morning 21 Febr. 1588. Id. 94. Vide Sir Simon d'Ewe's Jour 436. Col. 1 2. Ordered That those Members of the House who have Occasion of Privilege Writs of Nisi priùs being brought against them do declare their Case to the Speaker who thereupon shall direct the Warrant of this
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 and that the Indenture shall be the Return of the Sheriff It was also said That the Precedents do warrant this Judgment viz. 1. One Precedent of 39 H. 6. where a Person outlawed was adjudged a sufficient Member of Parliament Another 1 Eliz. and at that Time one Gargrave who was a Man learned in the Law was Speaker and of the Queen's Council 2. Another was the Case of one Fludd in the 23d of the Queen who being outlawed was adjudged That he should be privileged by Parliament and at that Time the Lord Chief Justice Popham was Speaker And 3. In the 35th of Elizabeth there were three Precedents scil one of Fitz-Herbert another of one Killegrew being outlawed in fifty two 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 Upper-House Note 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 that 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 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 considered of and digested by the Speaker and Committees in three Points viz. 1. In the Reasons and Motives of their Resolutions 2. In the Precedents 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 See Bohun's Col. p. 277. Whether the Speaker ought to have his Privilege 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 It seems antiently to be a Privy Counsellor was incompatible with being a Member of Parliament or Publick Counsellor 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 Precedents Quere If the King himself was not here too over weening he said That those were his own proper Records and to use them against himself was over-great Weenings But in Precedents 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 Precedents 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 Thatan outlawed Person cannot by the Law be a Member of the Parliament-House but for that Cause