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
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
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
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
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
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
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
a Speech spoken by him in the House he shou'd be sent to the Tower during the Parliament or presently after Darryel was sent for by the Serjeant to answer it to the House and upon Testimony of it he was committed to the Serjeant till Thursday following and then to acknowledge his Fault or to be committed to the Tower 16 Junij 1604 Ibid. Complaint being made of one Thomas Rogers a Currier dwelling in Colemanstreet for abusing Sir John Savil in slanderous and unseemly Terms upon his Proceedings at a Committee in the Bill touching Tanners c. he was sent for by the Serjeant at Arms to the Bar to answer his Offence Sir William Aston Rush Col. 656. Vid. Petyt 's Miscell Parl. 108. Acon 's Case Sheriff of London being examined before the Committee concerning some Matters about the Customs and not giving that clear Answer which he ought and as the House conceived he might have done was therefore committed to the Tower of London And a Question was made in the House at that Time Whether the House had at any Time before committed a Sheriff of London to Prison To which Mr. Selden made Answer That he could not call to mind a Precedent of sending one Sheriff of London to Prison but he well remembred a Precedent of sending both the Sheriffs of London to the Tower and instanced the Case One Trussel Towns Col. 20. Vid. Sir Simon d'Ewes Jour 438. Col. 1. being in Execution in one of the Compter's in London was order'd to be brought before the Committee with his Keeper without Danger of an Escape in the Execution Note the Case of Mr. W. Montague who being a Prisoner in Execution was notwithstanding elected a Burgess for Stockbridge and discharged of his Imprisonment by the House See the Case in Bohun's Collection of Debates pa. 275. to 281 where all the Precedents of this Kind are cited at large 4 Novemb. 1640 Scobel 16. upon a Report from the Committee for Priviledges That several Indentures were returned for Burgesses for the Borough of Bossinny in the County of Cornwal the one by the Mayor of the Town the other promiscuously the Committee were of Opinion upon view of the bare Indenture That Sir Charles Harbord who was return'd by the Mayor was well return'd See hereafter Ch. 12. and 13 but the House declar'd he shou'd not sit till the Election were decided 44 Eliz. 1601 the Course hath been Towns Col 297. if the House hath been desirous to see any Record the Speaker shou'd send a Warrant to the Lord Keeper to grant a Certiorari to have the Record brought into the House Decemb. 1641 Nalson 753. ordered That Mr. Speaker do write his Letters to the Mayor of Berwick enjoyning him to require such Papists and suspected Persons as reside there or make their constant Repair thither forthwith to depart the Town and to tender the Oaths of Supremacy and Allegiance to such as shall refuse and to proceed against them according to Law and to require him that a Guard be kept at the several Gates and that the Arms of that Place be in Readiness The like to the Mayor of Newcastle and of Hull The Commons Rush Col. 358. upon Imprisonment of their Members and the Offence taken by the King resolved to proceed in no other Business till they were righted in their Liberties See Nalson's Col. p. 3. to 21. Dec. 1641 Nalson 732. Mr. Long a Justice of the Peace sent to the Tower for setting a Guard without Consent of the Parliament A Knight 4 Inst 12. Citizen or Burgess of the House of Commons cannot by any Means make a Proxy because he is elected and trusted by Multitudes of People If the Commons accuse a Commoner of Misdemeanors Selden 's Jud. 101. in such a State of Liberty or Restraint as he is in when the Commons complain of him in such he is to answer Sir Francis Michel Seld. Jud. Ibid. and Sir John Bennet were both committed by the Commons before their Complaint to the Lords and so they answered as Prisoners but that in a Sort may be call'd Judicium parium suorum If the Commons impeach any Man Ib. 124. Ante they are in loco proprio and there no Jury ought to be only Witnesses are to be examined in their Presence or they to have Copies thereof and the Judgment not to be given until the Commons demand it The Presence of the Commons is necessary at the Parties Answer Ib. 158. Ante 56. and Judgment in Cases Capital Now one Reason for the King's Assent and the Commons Presence in such Judgments may be this Both King and People are to be satisfied for the Death of the Subject therefore all Trials for Life and Death are publick in the full Assembly of the Court and how can it be said in full Parliament when the Commons one of the States are absent Tho the Commons are not present when the Lords do consider of the Delinquents Answer and the Proofs Ib. 159. and do determine of their Judgment yet at their Return to their own Assembly they consider among themselves if the Proceedings were legal and may come again and shew it and require a Rehearing of the Cause as they did at the Judgment of the Duke of Clarence in 18 Ed. 3. In Judgments on Misdemeanors Ib. 162. Ante 58. the Presence of the Commons is not necessary unless they impeach a Delinquent prout 50 E. 3. and then they are present at all the Answers of those whom they impeach and are to demand Judgment When the Lords had determin'd one Part of the Complaint of the Commons against William Ellis touching the Wrong done to certain Scottish Merchants the Commons pray'd a general Inquiry might be made of the Residue whereof they complained Ibid. which the Lords granted When the Lord Nevil answered Id. 163. the Commons required that one Richard Love might be examined to prove that which the said Lord deny'd and so departed but two of the Commons remained and heard the Examinations and told the Lords That the said Richard had related otherwise to the Commons the Day before which the said Richard deny'd Then all the Commons came and justify'd it again and thereupon the said Richard Love confessed it and on their Demands was committed In the 10 Rich. 2. Ibid. when the Commons had Impeached the Lord Chancellor they were present at his Answer and so often reply'd and enforced his Oath against him Vid. Post 80. and required him to be committed and so he was before Judgment If the Commons do only complain Ibid. and do neither impeach the Party in Writing nor by Word of Mouth in open House nor demand Trial to be in their Presence in these Cases it is in the Election of the Lords Whether the Commons shall be present or not Issuing of Quo Warranto's out of the Court of King's-Bench Nalson 588. Court of Exchequer or any Court against Boroughs that anciently or recently sent Burgesses to Parliament to shew
agreed That regularly he cannot be compelled out of Parliament to answer Things done in Parliament in a Parliamentary Course but it is otherwise where Things are done exorbitantly for those are not the Acts of the Court. No Privilege is allowable in Case of the Peace betwixt private Men 2 Nalson 450. much more in Case of the Peace of the Kingdom Privilege cannot be pleaded against an Indictment for any Thing done out of Parliament Ibid. because all Indictments are contra Pacem Domini Regis Privilege of Parliament is granted in regard of the Service of the Commonwealth Ibid. and is not to be used to the Danger of the Commonwealth All Privilege of Parliament is in the Power of Parliament Ibid. and is a Restraint to the Proceedings of other inferior Courts but is no Restraint to the Proceedings of Parliament 16 Car. 1 Resolved Rush 2 vol. 2d Part. 1147. That the Lords voting the propounding and declaring Matter of Supply before it was moved in the House of Commons was a Breach of Privilege of the House Dec. 1641. Resolved 2 Nalson 729. That the setting of any Guards about this House without the Consent of the House is a Breach of the Privilege of this House and that therefore such Guards ought to be dismissed Resolved upon the Question Id. 743. Nemine Contradicente That the Privileges of Parliament were broken by his Majesty's taking Notice of the Bill for suppressing of Soldiers being in agitation in both Houses and not agreed on Resolved upon the Question Ibid. Nemine Contradicente That his Majesty in propounding a Limitation and provisional Clause to be added to the Bill before it was presented to him by the Consent of both Houses was a Breach of the Privilege of Parliament Resolved upon the Question Ibid. Nem. Con. That his Majesty expressing his Displeasure against some Persons for Matters moved in the Parliament during the Debate and Preparation of that Bill was a Breach of the Privilege of Parliament Whereas his Majesty 2 Nalson 823. in his Royal Person the 4th of Jan. 1641. did come to the House of Commons with a great Multitude of Men armed in a warlike Manner with Halberts Swords and Pistols who came up to the very Door of the House and placed themselves there and in other Places and Passages near to the House to the great Terror and Disturbance of the Members then there sitting and according to their Duty in a peaceable and orderly Manner treating of the great Affairs of both Kingdoms of England and Ireland and his Majesty having placed himself in the Speaker's Chair did demand the Persons of divers Members of the House to be delivered unto him It was thereupon declared by the House of Commons Ibid. That the same is a high Breach of the Rights and Privileges of Parliament and inconsistent with the Liberty and Freedom thereof and therefore the House doth conceive they could not with Safety of their own Presons or the Indemnities of the Rights and Privileges of Parliament sit there any longer without a full Vindication of so high a Breach of Privilege and a sufficient Guard wherein they might confide The Lords cannot proceed against a Commoner Sleden's Jud. p. 84. but upon a Complaint of the Commons But Note as to Freedom from Suits and Arrests Stat. 12 13. Wil. 111. that in the Parliament of 12 13 William the Third an Act passed entitled An Act for preventing any Inconveniencies that may happen by Privilege of Parliament Which enacts Sect. I. That any Person may prosecute any Peer of this Realm or Lord of Parliament or any of the Knights Citizens and Burgess of the House of Commons for the Time being or their or any of their menial or other Servants or any other Person entitled to the Privilege of Parliament in any of the Courts of Record at Westminster or high Court of Chancery or Court of Exchequer or the Dutchy Court of Lancaster and in the Court of Admiralty and in all Causes Matrimonal and Testamentary in the Court of Arches the Prerogative Courts of Canterbury and York and the Delegates and in all Courts of Appeal from and after the Dissolution or Prorogation of any Parliament until a new Parliament shall meet or the same be reassembled And from and after any Adjournment of both Houses for above fourteen Days until both Houses shall meet or reassemble And that the said Courts respectively shall and may after such Dissolution Prorogation or Adjournment proceed to give Judgment and make final Orders Decrees and Sentences and award Execution thereon any Privilege of Parliament to the contrary notwithstanding Sect. II. Provides against subjecting the Person of any Knight Citizen or Burgess or any other intitled to the Privilege of Parliament to be arrested during the Time of Privilege Nevertheless allowing the Liberty that any Person having Cause Action or Complaint against any Peer of the Realm or Lord of Parliament so that after any Dissolution Prorogation or Adjournment as aforesaid or and before any Session of Parliament or Meeting of both Houses as aforesaid shall and may have such Process out of the Courts of King's Bench Common Pleas and Exchequer against such Peer or Lord of Parliament as he might have had against him out of the Time of Privilege And if any Person having Cause of Action against any of the said Knights Citizens or Burgesses or any other intitled to Privilege after any such Dissolution Prorogation or Adjournment or before any such Sessions or Meeting of both Houses ut supra he shall and may prosecute such Knight Citizen or Burgess or other such privileged Person in the said Courts of King's Bench Common Pleas or Exchequer by original Bill and Summons Attachment and Distress infinite out of the same Courts who are respectively impower'd to issue the same against him or them until the Defendant shall enter a Common Appearance or file Common Bail to the Action according to the Course of each Court. And that any Person having Cause of Suit or Complaint may in the Time aforesaid exhibit any Bill of Complaint against any Peer of the Realm or Lord of Parliament or against any Knight Citizen or Burgess or other Person so intitled to Privilege in the Chancery Exchequer or Dutchy Court and proceed thereon by Letter or Subpoena as usual And upon leaving a Copy of the Bill with the Defendant or at his House or Lodging or last Place of Abode may proceed thereon and for Want of an Appearance or Answer or for Non-Performance of any Order or Decree or for Breach thereof may sequester the real or personal Estate of the Party as is used and practised where the Defendant is a Peer of the Realm but shall not arrest or imprison the Body of any of the said Knights Citizens or Burgesses or other privileged Person during the Continuance of Privilege of Parliament Sect. III. That where any Person by reason of Privilege of Parliament is stayed or prevented from prosecuting any Suit