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A47876 The lawyer outlaw'd, or, A brief answer to Mr. Hunts defence of the charter with some useful remarks on the Commons proceedings in the last Parliament at Westminster, in a letter to a friend. L'Estrange, Roger, Sir, 1616-1704. 1683 (1683) Wing L1266; ESTC R25476 42,596 42

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4. c. 1. and 8 H. 6. c. 7. and 23 H. 6. c. 15. These are the Laws for regulating Elections and pursuant to them Queen Elizabeth in whose time the Commons busi'd themselves too much in that matter sent a notable check to the House in the 28 year of her Reign for their medling with choosing and returning Knights of the Shire for Norfolk a thing said she impertinent for the House to deal withall and only belonging to the Office and charge of the Lord Chancellor from whom the Writs Issue and are return'd D'ewes Journal p. 393. Which Message wrought then so far upon the House that for some years after they forbore to medle much in any thing of that nature but apply'd themselves when occasion requir'd to the Lord Chancellor or Keeper who proceeded therein as the Law directed without taking any great notice of the Commons Votes or Resolves as we find by a remarkable Instance in the 35 of this Queen when Sir Edward Coke then Speaker was order'd by the House to attend upon my Lord Keeper to move his Lordship to direct a New Writ for choosing a Burgess for Southwark instead of Richard Hutton suppos'd to have been unduly elected and another for allowing Sir George Carew who was duely elected but not return'd to be Burgess for Camelsford in Cornwall and a third for changing the name of John Dudley return'd Burgess for New-Town in the County of Southampton into the Name of Thomas Dudley alleadg'd to be the same person but his Name mistaken My Lord Keeper answer'd that the Returns for Southwark and Camelsford shou'd stand good but as for the said John Dudley he wou'd direct a new Writ for choosing another Burgess in his stead for Newtown D'ewes Journals p. 494. Now if this was the legal way of Proceeding in Queen Elizabeth's Reign warranted by the Statutes lately quoted and allow'd by the great Lawyer Sir Edward Coke and the whole House of Commons at that time by what Authority cou'd it be alter'd in succeeding Parliaments or is it just that the Ancient Precedents of former Ages shou'd be avoided by unwarrantable new-ones of later times Without question had the House of Commons then known they had any Power to mend the said Returns or punish the Offendors they wou'd never have sent their Speaker to wait on the Lord Keeper's pleasure about it and if that House had no such Authority 't is strange how can their Successors pretend to have any Thus we see the House of Commons was not in former times allow'd to regulate the Election of their own Members nor to Imprison any for undue Elections or Returns nor yet for a breach of Priviledge much less for any other Crime or Misdemeanor Nothing was heard in those better days of that terrible Sentence Take him Topham not a word of the Subjects Imprisonment during the Will and Pleasure of the House of Commons The sitting of Parliaments then was short and sweet dispatching more business in three days than of late they have done in so many months Their Study was to Redress not Create Grievances and preserve or procure a good understanding betwixt the King and His People and not like Banbury-Tinkers instead of mending one hole make a great many Oh! but say some the Connivance of King and Lords is a strong Argument that the Commons have done nothing herein contrary to Law I Answer 't is rather a very weak and frivolous Plea first because tho the King be oblig'd by His Coronation-Oath to govern by Law yet all knowing men will allow He has a Prudential Power to suspend the Execution of such Laws as he thinks prejudicial to the publick Interest and consequently may when he sees occasion wink at some illegal attempts of His Subjects to avoid a great Inconvenience If thefore of late times the King and if you will the House of Lords did connive at some unwarrantable resolutions of the Commons rather than exasperate the whole House too Jealous of their own Priviledges and thereby frustrate the chief end of Calling His Parliament the Security of the Publick it was Policy and great Prudence to wave it at that time tho now 't is the height of Folly to make this a warrant for doing the like again contrary to so many legal Presidents and express Acts of Parliament Secondly because the gathering of Peter-pence in this Kingdom has been conniv'd at by King Lords and Commons for divers Centuries of years yet it was an Illegal Tax upon the Subject contrary to Magna Charta and the Fundamental Laws of the Nation 25 H. 8. c. 21. Likewise the Clergy made divers Canons and Constitutions which have been conniv'd at for several Ages both by King and Parliament yet are declar'd by 25 H. 8. c. 19 To be much prejudicial to the Kings Prerogative Royal and repugnant to the Laws and Statutes of this Realm The same may be said of the Ancient Custom of Archbishops and Bishops declar'd by 1 Ed. 6. c. 2. to be contrary to the Common-Law of of the Land tho practic'd and conniv'd at time out of mind And to omit several other Instances Cardinal Wolsey for exercising his Legantine Power and the whole Clergy for receiving it tho conniv'd at for many years as well in as out of Parliament were nevertheless found guilty in a Premunire in His Majesties Court of Kings-Bench Connivance therefore is no good Argument of any things being legal and the tolerating of a Custom tho never so long cannot warrant its continuance while the Law is against it Presidents indeed of former Ages when legal and just from the beginning are of great force in Judicial Proceedings but no new President of late days can have that weight in any Court of Justice and to be sure will never be allow'd if contrary to Law and the Authentick Records of Antiquity But the House of Lords say they use to punish the Breaches of their Priviledges and several other Misdemeanors why then may not the House of Commons do the like A most ridiculous parity for they might argue as well the Court of Kings-Bench Fines and Imprisons Delinquents therefore the Grand-Jury may do the like when they please For the Commons in Parliament are really the Grand-Jury of the Nation appointed to enquire after Briberyes Extortions Monopolies and other publick Oppressions and complain thereof to the King and Lords and humbly pray redress yet they are no Judges in any Case themselves but are Parties as being the Attorneys and Representatives of those that are injur'd So far they are from having any Judicial Power that they cannot as much as administer an Oath upon any occasion whatsoever which undoubtedly the Law wou'd not have deny'd them but that they were never design'd for Judges or punishers of any Criminal because qui negat Medium negat finem But the House of Lords is not only a Court of Judicature but the Supream Court of the whole Kingdom they are
accorded in the same Parliamenti that likewise it be done in time to come in like Case 5 H. 4. c. 6. and 11 H. 6. c. 11. As for the Commons freedom from Arrests 't is certainly a very Ancient Priviledge granted by our Kings to that House the better to enable them to attend the publick service to which they were summon'd as appears by Edward the first 's Answer to the Templars who having some Tenants in the Parliament that were behind with their Rents Petition'd the King to have leave to Distrain for the said Arrears in Parliament-time which he utterly refus'd saying Non videtur honestum quod Rex concedat quod illi de Consilio suo distring antur tempore Parliament 18 Ed. 1. Rot. 7. in Thesaur Receptoris Scaccar Yet that it was not formerly held so sacred nor did extend near so far as some people now imagine is plain from the Case of Thorpe 31 H. 6. Who tho Speaker of the House of Commons at that time was Imprison'd in the Fleet during the Prorogation of the Parliament for a 1000. Marks Damages given against him for a Trespass done to the Duke of York And the Parliament being Re-assembled the Commons earnestly desir'd to have their Speaker discharg'd but it was adjudg'd by the Lords that he shou'd remain in Prison according to his Sentence and they choose another Speaker whereupon they elected Sir Thomas Charlton and made no further clamours as some now wou'd do that their Priviledges were invaded 31 H. 6 Rot. Parliam n. 25 26 c. Seldens Baronage fol. 115. Now for the Tryal of a breach of this Priviledge tho I find no positive or express Statute that orders it to be decided in the ordinary Courts of Justice yet that they may lawfully do it is a plain consequence of the foregoing Acts of Parliament For to argue a majori ad minus since Assaults upon Parliament-men are far more Criminal than Arrests if the ordinary Courts of Justice can try the greater they may certainly try the lesser Crime And accordingly they have often taken cognizance as well of this as other Priviledges of Parliament as appears in the Case of Done against Welsh and of River against Cosyn Skewish against Trewynnard and many others But the most usual practice of former times was to make application to the King and Lords for redress in this particular for as Sir Edward Coke himself confesses The determination and knowledge of this Priviledge belongs to the Lords of Parliament in his select Cases 63. And therefore the House of Commons upon the restraint of any of their Members or Menial Servants of which themselves took no cognizance till of very late days always made their humble request to the King and Lords for his enlargement Thus when William Lake Servant to William Milred a Member of the House was taken in Execution of Debt and Committed to the Fleet the Commons Petition'd the King and Lords for his Liberty The like they did in Walter Clarks Case and in the Case of William Hide And to omit several other Precedents even in the 43 Eliz. when a Bill was preferr'd in the Star-Chamber against Belgrave a Member of that House the Parliament then sitting for Misdemeanors by him committed against the Earl of Huntington the Commons well knowing they had no Authority of themselves to protect their Member made their earnest but ineffectual Application to the Lords for relief Sir Simon D' Ewes Journals p. 612 And in the same Parliament a great asserter of Priviledges upon a debate about Subpaena's said openly in the House Our use at this day is not warranted by Ancient course of Precedents for if a man had been Arrested upon a Subpaena upon notice given he shou'd have had a Writ of Priviledge which of course Her Majesty must have allow'd D'ewes Journals pag. 655. which is conformable to the Report made 18 Eliz. by Mr. Attourney of the Dutchy upon a Committee appointed for setting Mr. Halls man at Liberty That the Committee found no Precedent for setting at large by the Mace any person in Arrest but only by Writ and that by divers Precedents of Records perus'd by the said Committee it appeareth that every Knight Citizen or Burgess which doth require Priviledge hath us'd in that Case to take a Corporal Oath before the Lord Chancellor or Lord Keeper that the Party for whom such Writ is pray'd came up with him and was his Servant at the time of the Arrest made D'ewes p. 249. The famous Case of Ferrers Burgess of Plimouth 34 H. 8. tho often alleadg'd in favour of the Commons is so far from making any thing for their purpose that it plainly shews they never offer'd till then to punish any breach of Priviledge for altho they found not only that the Sheriffs of London deny'd to deliver their Burgess but that the Officers of the Counter beat their Serjeant and broke his Mace yet knowing they had no coactive Power of themselves they were forc'd to repair to the upper House which they wou'd never have done had their own Authority been sufficient and complain to the Lords of the injury they receiv'd who judging the contempt to be very high for the Commons greater satisfaction referr'd the punishment thereof wholly to themselves which condescension it seems gave such encouragement to that House in succeeding Parliaments who have been always sure never to loose but still to gain ground upon the Prerogative and the House of Peers that now and then they made bold even without any Warrant or direction from the Lords to punish some breaches of Priviledge and at last other misdemeanors For King Edward the sixth because of his Minority and his two Sisters by reason of their Sex being not so active nor so fit for business as their Predecessors the Commons took hold on this opportunity to get themselves into Power and endeavour'd by punishing Offenders to render themselves the more formidable to the People From hence they proceeded to regulate Elections and tho the Law is very plain and positive in this Case also yet the Commons have taken upon them of late days not only to decide who is duely chosen and who unduly return'd but have further assum'd the Power to punish the Offenders contrary to divers Acts of Parliament in that Case provided For by several Statutes it appears That if the Sheriff makes an undue Return his punishment is 200 l. one to the King and the other to the party duely Elected besides a years Imprisonment without Bail or Mainprise And the person unduely return'd is to continue a Member of the House but at his own Charges without any allowance from the place for which he serves As for the return if any makes complaint thereof It ought to be tryed not by a Committee of Elections but before the Justices of Assizes in the proper County or by Action of Debt in any Court of Record as appears 11 H.