Being of this Kingdom can have no other Bottom to stand upon but the Parliament it being the Foundation upon which the whole Frame of the Commonwealth is built The Parliament is the Cabinet Ib. 201. wherein the chiefest Jewels both of the Crown and Kingdom are deposited The great Prerogative of the King and the Liberty of the People are most effectually exercised and maintained by Parliaments c. Parliaments are the Ground and Pillar of the Subject's Liberty Ib. 587. and that which only maketh England a free Monarchy Parliaments are says the Earl of Warwick Ib. 752. Admiral of the Sea to John Pym Esq July 6 1742 That Great Council by whose Authority the King's of England have ever spoken to their People Both Houses of Parliament are the Eyes in the Body Politick Ib. 702. whereby His Majesty is ought by the Constitution of this Kingdom to discern the Differences of those Things which concern the Publick Peace and Safety thereof The Parliament is the Mouth of the King and Kingdom Vox Dei c. Parliaments says K. C. 1. in his Declaration to all his Loving Subjects Rushw Coll. 3d Part Vol. 2 p 40. after his Victory at Edgehill on the 23d of October 1642 are the only Sovereign Remedies for the growing Mischiefs which Time and Accidents have and will always beget in this Kingdom That without Parliaments the Happiness cannot be lasting to King or People The Parliament is to be considered in three several Respects first Ib. p. 45. As it is a Council to advise 2dly As it is a Court to judge 3dly As it is the Body Representative of the whole Kingdom to make repeal or alter Laws L'Assemblie de Troys Estates Cestascavoir Finch's Nemotecnia lib. 2. c. 1. fo 21. Roy Nobility Commons qui font le Corps del Realm est appel un Parliament lour Decree un Act de Parliament Car sans touts troys come si soit fait per Roy Seigneurs mes rien parle del Commons nest Ascun Act de Parliament i. e. The Assembly of the three Estates to wit the King the Nobility and the Commons which make the Body of the Realm is called a Parliament and their Decree an Act of Parliament for without all three as if it be done by the King and Lords but speaks nothing of the Commons there is not any Act of Parliament On the Restoration of King Charles the 2d the Commons resolved May 1. 1660. Journal Dom. Co. That this House doth agree with the Lords and do own and declare that according to the antient and fundamental Laws of this Kingdom the Government thereof is and ought to be By King Lords and Commons The Word Parliament is used in a double Sense 1. English Liberties p. 78. Strictly as it includes the Legislative Power of England as when we say an Act of Parliament add in this Acceptation it necessarily includes the King the Lords and the Commons each of which have a Negative Voice in making Laws and without their Joint Consent no new Laws can pass that be obligatory to the Subject 2. Vulgarly the Word is used for the Two Houses the Lords and Commons as when we say The King will call a Parliament His Majesty has dissolved his Parliament c. This Court is the highest Court in England Crompton's Juris p. 1. in which the Prince himself sits in Person and usually comes there at the Beginning of the Parliament and at the End and at any other Time when he pleaseth 4 Inst 3. during the Parliament The King is the Caput Principium and Finis of Parliaments It appears by Precedents That whenever a Parliament was sitting in the King's Absence Rushw Coll. Vol. 3. Part 1. p. 772. there was always a Custos Regni or a Locum Tenens Regis appointed This Court consists of the King's Majesty 4 Inst 1. sitting there as in his Royal Politic Capacity and of the three Estates of the Realm viz. the Lords Spiritual Arch-Bishops and Bishops who sit there by Succession in respect of their Counties Vide Dyfol 60. or Baronies parcel of their Bishopricks The Lords Temporal Dukes Marquesses Earls Viscounts and Barons who sit there by reason of their Dignities which they hold by Descent or Creation every one of which both Spiritual and Temporal ought to have a Writ of Summons ex debito Justitiae And the Commons of the Realm whereof there be Knights of Shires or Counties Citizens of Cities and Burgesses of Boroughs all which are respectively elected by the Shires or Counties Cities and Boroughs by Force of the King's Writ ex Debito Justitiae and none of them ought to be omitted And these represent all the Commons of the whole Realm and are trusted for them The King and these three Estates Ib. 2. are the great Corporation or Body Politic of the Kingdom and do sit in two Houses King and Lords in one House called The Lords House the Knights Citizens and Burgesses in another House called The House of Commons That which is done by this Consent Arc. Parl. 2. is called firm stable and sanctum and is taken for Law All the Judges of the Realm Towns Coll. 5.6 Vid. Cromp ton 1. Barons of the Exchequer of the Coif the King's Learned Council and the Civilians Masters of the Chancery are called to give their Assistance and Attendance in the Upper House of Parliament but they have no Voices in Parliament 4 Inst 4. but are made sometimes joynt Committees with the Lords Every Englishman is intended to be there present either in Person Arc. Parl. 3. Smyth's Common-wealth 74 or by Procuration and Attorney of what Preeminence State Dignity or Quality soever he be from the Prince be it King or Queen to the lowest Person in England And the Consent of the Parliament is taken to be every Man's Consent In antient Time the Lords and Commons of Parliament did sit together 2 Bulstro 173. See Cotton's Records 12.13.348 Post 60. in one and the same Room but afterwards they were divided to sit in several Rooms and this was at the Request of the Commons but yet still they remain but one Court And of all this I have seen the Records one in the Time of H. 1. where all of them did sit together and mention is there made of the Degrees of their Seats so in the Time of E. 3.39 No Man ought to sit in the High Court of Parliament 4 Inst 45. but he that hath Right to sit there For it is not only a personal Offence in him that sitteth there without Authority but a publick Offence to the Court of Parliament and consequently to the whole Realm It is to be observed 4 Inst 2. That when there is best Appearance there is the best Success in Parliament At a Parliament 7 Hen. 5. of the Lords Spiritual and Temporal there appeared but Thirty and there was but one Act pass'd of no great Weight In 50 Ed. 3. all the Lords appeared in Person and not one by
Person or Persons so Infeost to Vote at that Election and that it shall be lawful for any of the Electors present suspecting any Person or Persons to have his or their Estates in Trust and for the Behoof of another to require the Praeses of the Meeting to tender the Oath in this Act contained to any Elector and the said Praeses is hereby impowered and required to administer the same In case such Elector refuse to Swear and also to subscribe the said Oath such Person or Persons shall not be capable of Voting at such Election Notwithstanding such Oath taken it shall be lawful to make such other Objections as are allowed by the Laws of Scotland against such Electors No Infeoffment taken upon any redeemable Right except proper Wadsetts Adjudications or Apprisings allowed by the Act of Parliament relateing to Elections in One thousand six hundred eighty one shall entitle the Persons so Infeoft to Vote at any Election in any Shire or Stewartry And no Person or Persons who have not been Enrolled and Voted at former Elections shall upon any Pretence whatsoever be Enrolled or admitted to Vote at any Election Scotland except he or they first produce a sufficient Right or Title to qualifie him or them to Vote at that Election to the satisfaction of the Freeholders formerly Enrolled or the Majority of them present and the returning Officers are hereby ordained to make their Returns of the Persons Elected by the Majority of the Freeholders enrolled and those admitted by them reserving always the Liberty of objecting against the Persons admitted to or excluded from the Roll as formerl The Right of Apparent Heirs in Voting at Elections by Virtue of their Predecessors Infeoffments and of Husbands by Virtue of their Wives Infeoffments reserved Any Conveyance or Right which by the Laws of Scotland is sufficient to qualify any Person to Vote in the Elections of Members of Parliament for Shires or Stewartries and whereupon Infeoffment is taken on or before the first Day of June in the Year of our Lord One thousand seven hundred and thirteen shall intitle the Person or Persons so Infeoft to Vote at the Elections of Members to serve in the next ensuing Parliament No Husband shall Vote at any ensuing Election by Virtue of their Wives Infeoffments Wales who are not Heiresses or have not Right to the Property of the Lands on account whereof such Vote shall be Claimed Ordained St. 23. H. 6. c. 15. Vide post c. That every Sheriff after the Delivery of any Writ of Election to him made shall make and deliver without Fraud a sufficient Precept under his Seal to every Mayor and Bailiff c. of the Cities and Boroughs within his County commanding them by his Precept if it be a City to choose by Citizens of the same City Citizens and in the same manner and form if it be a Borough to choose a Burgess by the Burgesses of the same to come to the Parliament Enacted St. 23 H. 8. c. 26. Wales c. That the Dominion of Wales shall be stand and continue for ever from henceforth Incorporated United and Annexed to and with the Realm of England and that all and singular Person and Persons born and to be born in the said Principality Country or Dominion of Wales shall have enjoy and inherit all and singular Freedoms Liberties Rights Privileges and Laws within this Realm and other the King's Dominions as other the King's Subjects naturally Born within the same have enjoy and inherit For all Parliaments to be holden and kept for this Realm Wales two Knights to be elected to the same Parliament for the Shire of Monmouth in the like Manner Form and Order as Knights and Burgesses be elected and chosen in all other Shires And that one Knight shall be Elect-for every of the Shires of Brecknock Radnor Montgomery and Denbigh and for every other Shire within Wales and for every Borough being a Shire-Town within Wales except the Shire Town of the County of Merioneth one Burgess and the Election to be in like Manner as Knights and Burgesses of the Parliament be Elected in other Shires That the Burgesses of all and every Cities Boroughs St. 35. H. 8 c. 11. and Towns in the twelve Shires within Wales and County of Monmouth not finding Burgesses for the Parliament themselves and contributary to Wages of Burgesses of such Shire-Towns shall be lawfully admonished by Proclamation or otherwise by the Mayors Bailiffs and other Head Officers of the said Towns or by one of them to come and give their Elections for the Electing of the said Burgesses at such Time and Place Lawful and Reasonable as shall be assigned for the same intent by the said Mayors Chester Bailiffs and other Head Officers of the said Shire-Towns or by one of them in which Elections the Burgesses shall have the like Voice and Authority to elect the Burgesses of every the said Shire-Towns in such Manner as the Burgesses of the said Shire-Towns have and use That the County Palatine of Chester shall have two Knights for the said County Palatine St. 34 35 H. 8. c. 13. Chester and likewise two Citizens to be Burgesses for the City of Chester the same Election to be made under like Manner and Form to all Intents Constructions and Purposes as is used within the County Palatine of Lancaster or any other County or City within this Realm That the County Palatine of Durham may have two Knights for the same County St. 25. c. 2. c. 9. Durham and the City of Durham two Citizens to be Burgesses for the same City for ever hereafter to serve in Parliament the same Election from time to time to be made in Manner following viz. The Elections of the Knights to serve for the said County Palatine to be made by the greater Number of the Freeholders of the said County Palatine that shall be present at such Elections as is used in other Counties and that the Election of the said Burgesses from Time to Time Vid. Post 190.191 shall be made by the Major part of the Mayor Aldermen and Freemen of the City which shall be present at such Election See also the Stat. 34 35 H. 8. c. 24. Cambridge concerning the Payment of the Wages of the Knights of the Shire for Cambridge The Form of the Abjuration as altered by Stat. 4 Ann. c. 8. and as the same is now to be taken I A. B. do truly and sincerely acknowledge profess testify and declare in my Conscience before God and the World That our Sovereign Lord King George the Second is lawful and rightful King of this Realm and all other His Majesty's Dominions and Countries thereunto belonging And I do solemnly and sincerely declare That I do believe in my Conscience that the Person pretended to be Prince of Wales during the Life of the late King James and since his Decease pretending to be and taking upon himself the Stile and Title of King of England by the Name
and every the Sheriffs Mayors G. Britain Bailiffs and other Officers The Act to be read by the Sheriff c. after reading the Writ to whom the Execution of any Writ or Precept for electing any Members belongs shall at the Time of such Election immediately after the Reading of such Writ or Precept read or cause to be read openly before the Electors there assembled this present Act and every Clause therein contained and the same shall also openly be Read once in every Year at the General Quarter Sessions of the Peace after Easter and at the Quarter Sessions after Easter and on electing Magistrates c. for any County or City and at every Election of the chief Magistrate in any Borough Town Corporate or Cinque-Port and at the annual Election of Magistrates and Town Counsellors for every Borough in Scotland That every Sheriff Under-Sheriff Wilful Offence forfeits 50 l. Mayor Bailiff and other Officer to whom the Execution of any Writ or Precept for the electing of Members doth belong for every wilful Offence contrary to this Act shall forseit 50 l. to be recovered with full Costs as before directed Provided Prosecution to commence within two Years That no Person shall be made liable to any Incapacity Disability Forfeiture or Penalty by this Act unless Prosecution be commenced within two Years after such Incapacity c. incurred or in Case of a Prosecution the same be carried on without wilful Delay any Thing herein to the contrary After a Recital of the St. 7.8 St. 6. G. 11. c. 23. W. 3. and the Inconveniencies of County Courts being adjourned to Mondays Fridays or Saturdays it enacts That no County Court in England shall be adjourn'd to a Monday Friday or Saturday and all Adjournments and Acts done at such Courts so adjourn'd to be null and void any Law Custom or Usage to the contrary Provided That any County Court begun holden on or adjourned to any Day not prohibited by this or the said former Act for electing any Knight of the Shire for any County or for hearing and determining Causes or for such other Matters and Business as are usually transacted at County Courts may be adjourned over from Day to Day tho' the same may happen to be on a Monday Friday or Saturday until such Election or other Matters be fully finished any thing therein to the contrary c. CHAP. XIII Election of the Speaker THE Speaker is he that doth prefer and commend the Bills exhibited to the Parliament Arc. Parl. 3. Smyth's Common-wealth 75. and is the Mouth of the Parliament It is true 4 Inst 8. Smyth's Common-wealth 75. See Bohun's Coll. 352. contra the Commons are to choose their Speaker but seeing that after their Choice the King may refuse him for avoiding of expence of Time and Contestation the Use is as in the Conge d'Eslier of a Bishop that the King doth name a discret and learned Man whom the Commons elect But without their Election no Speaker can be appointed for them 4 Inst 8. because he is their Mouth and trusted by them and so necessary as the House of Commons cannot sit without him And therefore a grievous Sickness is a good Cause to remove the Speaker Id. 8. and choose another So in 1 Hen. 4. Sir John Cheyny discharged and so William Sturton So in 15 Hen. 6. Sir John Tyrrel removed So March 14. 1694. Sir John Trevor The first Day each Member is called by his Name Modus tenend Pal. 35. every one answering for what Place be serveth That done they are willed to choose their Speaker who tho' nominated by the King's Majesty is to be a Member of that House Their Election being made he is presented by them to the King sitting in Parliament 35. So Sir Thomas Gargrave 1 Eliz. So Christopher Wray 13 Eliz. So Robert Bell 14 Eliz. See Bohun's Coll. 352 353. So John Puckering 27 Eliz. So George Snagg 31 Eliz. So Edward Coke 35 Eliz. So Yelverton 39 Eliz. So John Crook 43 Eliz. So Sir Thomas Crew 19 Jac. 1. So Sir Heneague Finch 1 Car. 1. cum multis aliis The Speaker ought to be religious Towns Coll. 1.4 honest grave wise faithful and Secret These Virtues must concur in one Person able to supply that Place The long Use hath made it so material Elsyng 154 that without the King's Commandment or Leave they cannot choose their Speaker Sed aliter ab Antiquo Surely the Election of the Speaker was antiently free to the Commons Id. 155. to choose whom they would of their own House which appears in this that the King never rejected any whom they made Choice of Vide contra Sir Simon d'Ewes Journ 42. Col. 1. where he saith That 28 Hen. 6. Sir John Popham was discharg'd by the King i. e. on his excuse and thereupon the Commons chose and presented William Tresham Esq who made no Excuse See the like of Paul Foley in Bohun's Collection 353. The Cause of Summons being declared by the King or Chancellor Elsing 151 Cook 12 115. Smyth's Common-wealth 79. the Lord Chancellor confers first with his Majesty and then in his Name commands the Commons to assemble in their House and to choose one of their Members to be their Speaker and to present him to his Majesty on a Day certain Upon which the Commons shall presently assemble themselves in the Lower House Co. 12.115 and he is to be a Member of their Parliament The Commons being thereupon assembled in their House Elsyng 152 Vid. Town Coll. 174. See Bohun ut Supra one of the Commons puts the rest in mind of their Charge given in the Upper House touching the choosing of a Speaker and then doth of himself commend one unto them and desires their Opinions to be signified by their Affirmative or Negative Voices and if any Man stand up and speak against him so named alledging some Reason he ought to name another Some Person when the generality of Members are come Scobel 3. Vid. Town 174. Vide Sir S. d'Ewe's Jour passim and sit doth put the House in mind that for their better proceeding in the weighty Affairs they are come about their first Work is to appoint a Speaker and re-commends to the House some Person of Fitness and Ability for the Service and Dignity which usually hath been one of the long Robe If more than one Person be named for Speaker Scobel 3. and it be doubtful who is more generally chosen sometime one of the Members standing in his Place doth by Direction or Leave of the House put a Question for determining the same or the Clerk at the Board So it was in the first Session 1 Jac. 1. Scobel 4. when Sir Edward Philips the King's Serjeant at Law was first named by Mr. Secretary Herbert as fit for that Place and the Names of others were mention'd but the more general Voice run upon Sir Edward Philips and a Question being put he was by general Acclamation chosen Speaker When the Speaker
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
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
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
Custom of Parliament and therefore void The Authority of the High Court of Parliament to be committed to a few as in 21 Rich. 2. c. 16. Ibid. is holden to be against the Dignity of a Parliament and that no such Commission ought to be granted Tho' it be apparent what transcendent Power and Authority the Parliament hath Id. 43 and tho' divers Parliaments have attempted to bar restrain suspend qualify or make void the Power of subsequent Parliaments yet could they never effect it for the latter Parliament hath ever Power to abrogate suspend qualify explain or make void the former in the Whole or in any Part thereof notwithstanding any Words of Restraint Prohibition or Penalty in the former For it is a Maxim in the Law of Parliament Quod Leges posteriores priores contrarias abrogant An Act of Parliament doth include every Man's Consent Hobart 256. as well to come and unborn Persons as those present The Sovereign Power of this High Court of Parliament is such Hakewel 86. that altho' the King's Majesty hath many great Priviledges and Prerogatives yet many Things are not effectual in Law to pass under the great Seal by the King's Charter without the consent of Parliament as was resolv'd by all the Judges in the Princes case The King by his Letters Patents may make a Denizen Id. 87. Bro. Denizen N o 9. 36. H. 8. but cannot Naturalize him to all purposes as an Act of Parliament may do If a Man be Attainted of Felony Hakewel 89. or Treason by Verdict Outlawry Confession c. his Blood is corrupted which is a perpetual and absolute Disability for him or his Posterity to claim any Hereditament in Fee-simple either as Heir to him or any Ancestor paramount him and he shall not be restored to his Blood without Parliament And yet the King may give to any attainted Person his Life by this Charter of Parliament The King cannot alter the Common Law Id. 90. or the general Customs of the Realm as Gavelkind Borough-English or the like without consent of Parliament Altho' a King have a Kingdom by Discent Ibid. yet seeing by the Law of that Kingdom he doth inherit that Kingdom he cannot change those Laws of himself without Consent of Parliament By the Laws of this Kingdom Ibid. the King cannot by his Proclamation alter the Law but the King may make Proclamtion that he shall incur the Indignation of his Majesty that withstands it But the Penalty of not obeying his Proclamation may not be upon Forfeiture of his Goods his Lands or his Life without Parliament Le Parliament d'Engleterre ne lia Ireland quoad Terras suas Brook 123. 91. Vide 20 H. 6.9 Crompton 22. b. quar ils ont Parliament la mes il poient eux lier quant al Choses transitory come eskipper de Lane ou Merchandize al intent de ceo carrier al auter Lieu ultra Mare The Parliament of England cannot bind Ireland Quere infra as to their Lands for they have a Parliament there but they may bind them as to Things transitory as the shipping of Wool or Merchandize to the intent to carry it to another Place beyond the Sea 4 Inst 350. Sometimes the King of England call'd his Nobles of Ireland to come to his Parliament of England c. And by special Words the Parliament of England may bind the Subjects of Ireland The Lords in their House have Power of Judicature Id. 23. and the Commons in their House have Power of Judicature and both Houses together have Power of Judicature This Power is best understood by reading the Judgments and Records of Parliament at large Ibid. and the Journals of the House of Lords and 6 H. 8. c. 16. Rast 429 430. Vaughan 285. the Book of the Clerk of the House of Commons which is sometimes also styled a Record If Inconveniencies necessarily follow out of the Law only the Parliament can cure them If a Marriage be declared by Act of Parliament to be against God's Law Id. 327. we must admit it to be so for by a Law that is by an Act of Parliament it is so declared In many Cases Multitudes are bound by Acts of Parliament Id. 14. which are not Parties to the Elections of Knights Citizens and Burgesses as all they that have no Free-hold or have Free-hold in ancient Demesne and all Women having Free-hold or no Free-hold and Men within the Age of One and twenty Years Hob. 256. c. and we may add Persons unborn It is declared by the Lords and Commons in full Parliament upon Demand made of them on the Behalf of the King That they could not assent to any Thing in Parliament that tended to the disherison of the King and his Crown whereunto they were sworn The Expounding of the Laws doth ordinarily belong to the Reverend Judges Hakewel 94. and in Case of greatest Difficulty or Importence to the High Court of Parliament Errors by the Law in the Common-Pleas are to be corrected in the King's-Bench 4 Inst 22. Vid. Stat. 1 Jac. 1 c. 1. and of the King's-Bench in the Parliament and not otherwise i. e. where the Proceedings are by original Writ Instit Leg. 171.172 For if they are by Bill they may be corrected in the Exchequer Chamber by St. 27 Eliz. c. 8. from whence a Writ of Error lyes to the Parliament Actions at Common Law are not determined in this High Court of Parliament Selden's Judicature 2. yet Complaints have ever been receiv'd in Parliaments as well of private Wrongs as publick Offences And according to the Quality of the Person and Nature of the Offence they have been retained or referred to the Common Law There be divers Precedents of the Trial of Bishops by their Peers in Parliament Id. 4.5 as well for Capital Offences as Misdemeanors whereof they have been accused in Parliament And so there have been of Commoners As the Arch-Bishop of Canterbury 15 Ed. 3. n. 6 7 8. ibid. postea 44. 39. ibid 17 E. 3.22 And the Bishop of Norwich 7 Ric. 2. for Misdemeanors So were the Bishops of York and Chichester tried for Treason by their Peers in Parliament upon the Appeal of the Lords Appellants 11 R. 2. And Anno 21 R. 2. The Commons Accused the Arch-Bishop of Canterbury of Treason by their Peers in Parliament upon the Appeal of the Lords Appellants 11 R. 2. And Anno 21 R. 2. The Commons accused the Arch-Bishop of Canterbury of Treason and the Temporal Lords judged him a Traitor and banished him But if a Bishop be accused out of Parliament he is to be tried by an ordinary Jury of Free-holders for his Honour is not inheritable as is the Temporal Peers out of Parliament yet in all other Matters save that only of their Trial they have Priviledge as no Day of Grace to be granted against them in any Suit A Knight to be returned upon the Pannel where a Bishop is Party and no Process in a Civil Action to be awarded
cause why they sent Burgesses of Parliament and all the Proceedings thereupon are Coram non Judice illegal and void And the Right of sending Burgesses to the Parliament is questionable in Parliament only and the Occasioners Procurers Note and Judges in such Quo Warranto's and Proceedings are punishable as in Parliament shall be thought consonant to Law and Justice And note See Bohun's Inst Legalis 186.190 c. The Practice and Proceedings on Quo Warranto's Mandamus's and some other Prerogative Writs seem to have been an Invention of the Judges in order to draw the Rights and Privileges of Burroughs and Corporations as well as of the People under the Cognizance of B. R. c. Where the Articles against the Delinquents are ex Parte Domini Regis Selden 's Judicature 118. there the Commons cannot reply nor demand Judgment for the Suit is the King's and not theirs In Trewinnard's Case Id. 39. Dyer 60 61. The Priviledge of the Commons is termed the Priviledge of Parliament and the Judgment given in that Case by the House of Commons is there said to be The Judgment of the most High Court of Parliament Sir Robert Atkyn's Argument 35. which proves they are not without a Judicial Power The King cannot take notice of what is done in the Commons House Id. 53. or deliver'd to them but by the House itself and that is one of the Laws and Customs of Parliament In 31 Hen. 6. Id. 55. When the Commons requested the King and Lords to restore their Speaker to them c. The Judges being demanded of their Counsel therein See this Case reported at large in Bohun's Debates in Parliament p. 276. c. Ibid. after mature deliberation they answer'd It was not their part to judge of the Parliament which may judge of the Law The Reason to judge of the Law signifies that they the Parliament can judge whether a Law be good or not in order to approve it and to re-enact it or to repeal a Law c. In 1621. Ibid. The House of Commons made a Protestation against all Impeachments other than in their House for any thing there said or done It was said by Mr. Justice Crook Id. 58. Rush Col. Vol. 1. f. 663. That regularly a Parliament-Man cannot be compelled out of Parliament to answer Things done in Parliament in a Parliamentary Course See Sir R. Atkins's Argument per Totum If it be done in a Parliamentary Course what Occasion can there be to answer for it But who shall judge what is a Parliamentary Course but a Parliament Not Judges of the Common Law for the Parliamentary Course differs from the Rules of the Common Law 27 Eliz. 1584 ordered Sir Simon d'Ewes Jour 347 Col. 2. That the Serjeant of this House do forthwith go to the Common Pleas Bar and charge the Recorder then pleading there to make his present Repair unto this House for his Attendance See and Note the Case of Judge Thorp Cottons Rec. 74 and 316. who 25 E. 3. was condemn'd to Death and to forfeit all his Lands and Goods for Bribery i. e. receiving 20 l. from a Person who had a Cause depending before him Note in the Parliament 11 R. 2. commonly called The Wonder working Parliament all the Judges as they were sitting in Westminster-Hall were arrested c. by Order of Parliament And the like happen'd to several Judges in the Convention Parliament upon the Revolution but Quere if their Commitment was by the Lords and Commons or by the Commons only See also the Journal of the House of Commons Journal of the Commons An. 1680. Anno 1680 several Orders and Resolutions of the Commons against divers of the Judges and others for encouraging Addresses c. in Order to obstruct the Meeting and Sitting of that Parliament And see there December the 30th the following Resolutions of that House viz. 1. That the several Writings Papers and Proceedings relating to such Members of the late Long Parliament of Pensioners who receiv'd Allowances out of the Monies appointed for secret Services be produced to this House 2. Nem. Contr. That no Member of this House shall accept of any Office or Place of Profit from the Crown without the Leave of this House nor any Promise of any such Office or Place during his being or continuing a Member of this House 3. That all Offenders herein be expell'd this House See there also the Report and Censure of the the Proceedings of divers of the Judges of Westminster-Hall viz. Sir Francis North Sir W. Scroggs Justice Jones and Baron Weston whereupon the House came to the following Resolutions viz. 1. That the Discharge of the Grand Jury of the Hundred of Osulston in Com. Middx by the Court of B. R. in Trin. Term last before the last Day of the Term and before they had finished their Presentments was arbitrary and illegal destructive to publick Justice a manifest Violation of the Oaths of the Judges of that Court and a Means to subvert the fundamental Laws of the Kingdom and to introduce Popery 2. That the Rule made by the Court of B. R. in Trinity Term last against Printing of a Book called The Weekly Pacquet of Advice from Rome is illegal and arbitrary the Judges thereby usurping to themselves Legislative Power to the great Discouragement of the Protestants and countenancing of Popery 3. That the Court of King's Bench in the Imposition of Fines on Offenders have of late Years acted arbitrarily illegally and partially favouring Papists and Persons popishly affected and excessively oppressing his Majesty's Protestant Subjects 4. That the refusing sufficient Bail in those Cases wherein the Persons committed were Bailable by Law was illegal and a high Breach of the Liberties of the Subject 5. That the Expressions in the Charge given to the Grand Jury by Baron Weston were a Scandal to the Reformation and tending to raise discord between His Majesty and his Subjects and to the Subversion of the antient Constitution of Parliaments and of the Government of this Kingdom 6. That the Warrant mentioned in the Report i. e. for Harry Carrs Commitment c. was arbitrary and illegal And then follow the several Resolutions for Impeaching the Judges above-named See also Ibid. Jan. 3. and the Articles against Scroggs c. And Jan. 4. 1680 resolved Nem. Cont. That such Members of this House who in this Time of imminent Danger do absent themselves without Leave of the House are to be reputed Deserters of their Trust and Neglecters of that Duty they owe to this House and their Country 27 Eliz. 1584 John Bland a Currier for making dishonourable Reflections on the House of Commons brought to the Bar and pardoned upon his Submission paying twenty Shillings Fee to the Serjeant and taking the Oath of Supremacy Eodem An. Id. 368. Col. 1. A Warrant for a Writ of Priviledge awarded for setting at Liberty John Pepler Servant to Sir Philip Sidney a Member of this House now Prisoner for Debt in the Compter in
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
No Candidate who shall have in his own Name or in trust for him or his Benefit any new Officers or Place of Profit hereafter to be created or be a Commissioner or Sub-Commissioner Secretary or Receiver of Prizes Commissioner of the Armies Accounts Commissioner of the Sick and wounded Agent for any Regiment Commissioner for Wine Licences Governor or Deputy-Governor of any of the Plantations Commissioner in any out-Port or have a Pension from the Crown during Pleasure shall be capable of being elected or sitting c. as a Member who shall have in his own Name or in the Name of any Person or Persons in Trust for him or for his Benefit any new Office or Place of Profit whatsoever under the Crown which at any time hereafter shall be created or erected nor any Person who shall be a Commissioner or Sub-Commissioner of the Prizes Secretary or Receiver of the Prizes nor any Comptroller of the Accompts of the Army nor any Commissioner of Transports nor any Commissioner of the Sick and Wounded nor any Agent to any Regiment nor any Commissioner for Wine Licences nor any Governor nor Deputy-Governor of any of the Plantations nor any Commissioner of the Navy employed in any of the Out-Ports nor any Person having any Pension from the Crown during Pleasure shall be capeable of being Elected or of sitting or voting as a Member of the House of Commons If any Person being chosen a Member of the House of Commons shall accept of any Office of Profit from the Crown during such time as he shall continue a Member his Election shall be Members chosen accepting any Office of Profit from the Crown while they continue Members their Election void and a new Writ to issue but capable of being again Elected and is hereby declared to be Void and a new Writ shall issue for a new Election as if such Person so accepting was naturally Dead Nevertheless such Person shall be capable of being again Elected as if his Place had not become Void as aforesaid No greater Number of Commissioners shall be made for the Execution of any Office than have been employed in the Execution of any such Office from the first Day of the Session Nothing herein contained shall extend to any Member of the House of Commons being an Officer in Her Majesty's Navy or Army Members being Officers in the Navy or Army receiving any New Commission in either not incapacitated who shall receive any new or other Commission in the Navy or Army respectively If any Person hereby disabled or declared to be incapable to Sit or Vote in Parliament Members hereby incapacitated if returned their Election void and presuming to sit and vote forfeit 500 l. to any that will sue by Action of Debt c. wherin no Essoin c and but one Imparlance shall nevertheless be returned as a Member to serve for any County City Town or Cinque-Port in any such Parliament such Election and Return are declared to be Void to all Intents and Purposes and if any Person disabled or declared incapable by this Act to be Elected shall presume to sit or vote as a Member of the House of Commons in any Parliament such Person so sitting or voting shall forfeit 500 l. to be recovered by such Person as shall Sue by Action of Debt Bill Plaint or Information wherein no Essoign Protection or Wager of Law shall be allowed and only one Imparlance Forty five shall be the Number of the Representatives of Scotland in the House of Commons of the Parliament of Great-Britain G. Britain Stat. 5 Annae c. 8. Every Member of the House of Commons of the Parliament of Great-Britain until the Parliament of Great-Britain shall otherwise direct shall take the respective Oaths appointed to be taken instead of the Oaths of Allegiance and Supremacy The Union Act. by an Act of Parliament made in England in the First Year of the Reign of the late King William and Queen Mary The new Oaths of Allegiance and Supremacy And make subscribe and audibly repeat the Declaration mentioned in an Act of Parliament made in England in the Thirtieth Year of the Reign of King Charles the Second The Test and shall take and subscribe the Oath mentioned in an Act of Parliament made in England in the First Year of Her Majesty's Reign The Abjuration At such time and in such manner as the Members of both Houses of Parliament of England are by the said respective Acts directed to take make and subscribe the same upon the Penalties and Disabilities in the said respective Acts contained And it is declared and agreed that these Words This Realm The Crown of this Realm and the Queen of this Realm mentioned in the Oaths and Declaration contained in the aforesaid Acts which were intended to signify the Crown and Realm of England shall be understood of the Crown and Realm of Great-Britain and that in that Sense the said Oaths and Declaration be taken and subscribed by the Members of the Parliament of Great Britain None shall be capable to be elected a Representative for any Shire or Borough of Scotland but such as are twenty one Years of Age complete None capable to be elected for any Shire or Borough of Scotland under 21 Years nor unless a Protestant Papists and such as refuse the Formula excluded Like Incapacity on Candidates not at this Time capable by the Laws of Scotland Stat. 6. An. c. 7. and Protestant excluding all Papists or such who being suspect of Popery refuse to swear and subscribe the Formula contained in the third Act made in the 8th and 9th Sessions of King William's Parliament in Scotland nor shall be capable to be elected to represent a Shire or Burgh in the Parliament of Great Britain for Scotland except such as were at the Time of passing this Act capable by the Laws of Scotland to be elected as Commissioners for Shires or Boroughs to the Parliament of Scotland A like Clause for incapacitating Persons to be elected c. Members of Parliament and likewise for incapacitating Members of Parliament with like Restrictions Exceptions and Penalties throughout the united Kingdom as are contained in the Statute 4 5 Annae c. 8. relating to Candidates and Members for the Parliament of England And further Candidates disabled to be elected or Members to sit c. in the Parliament of England under like Disabilities as to any Parliament of Great Britain That every Person disabled to be elected or to sit or vote in the House of Commons of any Parliament of England shall be disabled to be elected or to sit or vote in the House of Commons of any Parliament of Great Britain Except the present Commissioners for disposing the Equivalent by the present or any other Commission That every Person who shall refuse to take the Oath of Abjuration St. 6 Ann. c. 23. Candidates or others may require the Sheriff President of the Meeting c. on the Poll at any Election of Members in
and Time to Time without any further or other Adjournment without the Consent of the Candidates until all the Free-holders then and there present shall be polled England Every Sheriff Under-Sheriff Mayor Sheriffs Mayors c. to deliver to any Person desiring it a Copy of the Poll paying reasonably for writing it Sheriffs Mayors c. for every wilful Offence contrary to this Act forfeits to each Party grieved 500 l. to be recovered by him his Executors c. with full Costs by Action of Debt c wherein Essoign c. to be allowed Bailiff and other Officer to whom the Execution of any Writ or Precept shall belong for the electing Members to serve in Parliament shall forthwith deliver to such Person or Persons as shall desire the same a Copy of the Poll taken at such Election paying only a reasonable Charge for writing the same and every Sheriff Under-Sheriff Mayor Bailiff and other Officer to whom the Execution of any Writ or Precept for electing of Members doth belong for every wilful Offence contrary to this Act shall forseit to every Party so aggrieved the Sum of five hundred Pounds to be recovered by him or them his or their Executors or Administrators together with full Costs for which he or they may sue by Action of Debt Bill Plaint or Information in any Court at Westminster wherein no Essoign Protection Wager of Law Privilege or Imparlance shall be allowed Every Return of any Person under the Age of twenty one Years The Return of any Person chosen under 21 Years void is hereby declared to be null and void All County Courts for the County of York or any other County Courts England which heretosore used to be held on a Monday County Courts for Yorkshire and others used to be held on a Menday to be called and held on a Wednesday shall be called and begun upon a Wednesday and not otherwise any Custom or Usage to the contrary The Sheriff of the County of Southampton Sheriff c. of Hampshire at the Request of any Candidate to adjourn after the End of the Poll at Winchester to Newgate in the Isle of Wight or his Deputy at the Request of one or more of the Candidates for Election of a Knight or Knights of that County shall adjourn the Poll from Winchester after every Frecholder then and there present is polled to Newport in the Isle of Wight for the Ease of the Inhabitants of the said Island any thing in this Act to the contrary That no Person which shall refuse to take the Oaths of Allegiance and Supremacy directed by an Act made in the first Year of His present Majesty and the late Queen Mary St. 7 8. W. 3. c. 27. Sheriffs c. on the Poll at any Election to administer the Oaths of Allegiance and Supremacy to Electors and if Quakers the Declaration of Fidelity at the Request of any Candidate and on Refusal not to admit them to vote or being Quakers shall refuse to subscribe the Declaration of Fidelity directed by one other Act of Parliament made in the said first Year of the Reign of His present Majesty and the late Queen which Oaths and Subscription respectively the Sheriff or chief Officer taking the Poll England at the Request of any one of the Candidates are required to administer shall not be admitted to give any Vote for the Election of any Knight of the Shire Citizen Burgess or Baron of the Cinque-Ports to serve in Parliament That the Sheriff or other Officer having the Execution and Return of any Writ to Parliament St. 10 11 W. 3. c. 7. Sheriffs c. by themselves or Deputies on or before the Day any Parliament shall called to meet and not exceeding fourteen Days after any Election made to make his Return to the Clerk of the Crown c. shall on or before the Day that any suture Parliament shall be called to meet and with all convenient Expedition not exceeding fourteen Days after any Election made by virtue of any new Writ either in Person or by his Deputy make Returns of the same to the Clerk of the Crown in Chancery to be by him filed c. and pay to the Clerk of the Crown 4 s. for every Knight of the Shire and 2 s. for every Citizen Burgess c. which the Sheriff c. shall charge to the King and have allowed upon his Account See the Stat. c. 7 8. W. c. 25. p. 107. The proper Officer of the Cinque-Ports shall be allowed six Days from the Receipt of such Writ for the Delivery very of the Precept according to the Purport of the Act 7 and 8 W. III. G. Britain c. 25. any thing in the said Act or any other Law Statute or Usage to the contrary Every Sheriff or other Officer aforesaid who shall not make the Returns according to the true Intent and Meaning of this Act Sheriffs c. not making Returns accordingly to forfeit for each Offence 500 l. one Moiety to the King the other to him that will sue by Action of Debt c. wherein no Essoign c. to be allowed and but one Imparlance shall forfeit for every such Offence the Sum of 500 l. one Moiety to His Majesty and the other Moiety to him or them that will sue for the same to be recovered by Action of Debt Bill Plaint or Information in any Court at Westminster wherein no Essoign Protection or Wager of Law allowed nor more than one Imparlance That when any Parliament shall hereafter be summoned or called St. 6. Annae c. 6. Writs to issue to the respective Sheriffs or Stewarts for choosing the 45 Representatives of Scotland to Parliament Sheriffs c. thereon forthwith to give Notice of the Time of Election for the Shires Clerks of the Meetings forthwith to return the Names of the elected to the Sheriff who is to annex and return it with his Writ the Forty five Representatives of Scotland in the House of Commons in the Parliament of Great Britain shall be elected and chosen by Authority of the Queen's Writs under the great Seal of Great Britain directed to the several Sheriffs and Stewarts of the respective Shires and Stewartries and the said several Sheriffs and Stewarts shall on Receipt of such Writs forthwith give notice of the Time of Election for the Knights or Commissioners for their respective Shires or Stewartries G. Britain And the Clerks of the said Meetings immediately after the said Elections are over shall respectively return the Names of the Persons elected to the Sheriff or Stewart of the Shire or Stewartry who shall annex it to his Writ and return it with the same into the Court out of which the Writ is issued And as to the Manner of Election of the fifteen Representatives of the Royal Boroughs Sheriff of Edinburgh on Receipt of his Writ forthwith to direct his Precept to the Lord Provost for electing the Burgess for that City Common Clerk of Edinburgh to certify the
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
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
Sir Francis Popham being returned a Burgess for Chippenham by one Indenture Id. 14. and another Person returned for the same Place by another Indenture it was moved he might be admitted into the House till the Matter were determined But he was not so admitted and it was referred to the Committee for Privileges 21 Jac. 1. Id. 15. Two Indentures were return'd for Southwark the one returned Yarrow and Mingy the other Yarrow and Bromfeild Upon a Report from the Committee of Elections it was resolved That the Election and Return for Yarrow should stand good and that he should sit in the House 22 Martii Ibid. 21 Jac. 1. Sir John Jackson and Sir Thomas Beaumont were both returned for one Burgess's Place for Pontefract Ordered That the Committee take the Election into Consideration to Morrow and that in the mean Time the Parties forbear to come into the House CHAP. XXI A Session of Parliament and of Prorogations and Adjournments WHAT shall make a Session of Parliament See 1 Rol. R. 29. Hutton 61. 4 Inst 27. 1 Siderf 457. 1 Mod. Rep. 151 155. If several Bills are passed at one and the same Parliament none of them shall have Priority of the other for they are made all in one Day and Instant and each of them have relation to the first Day of the Parliament though in several Chapters and shall so be construed as if they had been all comprehended in one and the same Act of Parliament Sir W. Jones Rep. 22. Hob. 111. Bro. tit Parl. 86. and Relat. 35. Plowd 79.6 Levintz 9. Crooke says That though in Fiction of Law a Statute shall have relation to the first Day of the Parlaiment yet revera nothing is settled nor is it a perfect Statute till the Parliament is ended Jones ut sup 370. Vide cont ibid. 371. Hales Justice said That if the Parliament has several Prorogations and in the second or third Session an Act is made this shall not have relation to the Day of the Beginning of the Parliament that is to say to to the first Day of the first Session but only to the first Day of the same Session in which it is made Plowd 79.6 In a Session of Parliament though it continue never so many Weeks yet there is nothing prius aut posterius but all Things are held and taken as done at one and the same Time Rush Vol. I. Page 581. Jones in the Case of Sir John Elliot Ibid. p. 687. says We are Judges what shall be said a Session of Parliament Sed Quere de hoc The Passing of any Bill or Bills 4 Inst 27. by giving the Royal Assent thereto or the giving any Judgment in Parliament doth not make a Session but the Session doth continue till that Session be prorogued or dissolved And this is evident by many Presidents in Parliament ancient and modern 14 Ed. 3. Ibid. On the first Monday a Grant of c. being given to the King was made a Statute and pass'd both Houses and had the Royal Assent thereunto yet after this the Parliament continued and divers Acts made and Petitions granted 3 Rich. 2 Declared by Act of Parliament Ibid. That the killing of John Imperial Ambassador of Genoa was High Treason yet the Parliament continued long after and divers Acts made c. 7 Hen. 4. Ibid. An Act made for certain Strangers departing the Realm c. yet the Parliament continued till Dec. 8. Hen. 4. 1 Hen. 7. Ibid. The Attainders of such as were returned Knights Citizens and Burgesses were revers'd by Act Parliament before they could sit in the House of Commons and the Parliament continued and divers Acts made 33 Hen. 8. Ibid. At the Beginning of the Parliament the Bill of Attainder against Queen Catherine Howard passed both Houses yet the Parliament continued and divers Acts passed Though Bills passed both Houses Ibid. and the Royal Assent be given thereto there is no Session until a Prorogation or a Dissolution The Diversity between a Prorogation and an Adjournment Ibid. or Continuance of the Parliament is That by the Prorogation in open Court there is a Session and then such Bills as passed either or both Houses and had no Royal Assent to to them must at the next Assembly begin again Every several Session of Parliament is in Law a several Parliament Ibid. Hutton 61. Brook tit Parl. 86. But if it be but adjourned or continued then there is no Session and consequently all Things continue in the same State they were in before the Adjournment or Continuance The Titles of divers Acts of Parliament be 4 Inst 27. At the Session holden by Prorogation or by Adjournment and Prorogation but never by Continuance or Adjournment tantùm And the usual Form of Pleading is ad Sessionem tentam c. per Prorogationem The Adjournment or Continuance is much more beneficial for the Common-wealth 4 Inst 28. for expediting of Causes than a Prorogation The King desired the House of Commons not to make a Recess in the Easter Holidays Rush Col. 537 This Message for Non-recess was not well pleasing to the House Sir Robert Philips first resented it and took Notice That in 12 18 Jac. 1. upon the like Intimation the House resolved It was in their Power to adjourn 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 to make a Declaration Sir Edward Coke said The King makes a Prorogation but this House Adjourns itself The Commission of Adjournment we never read but say This House adjourns it self If the King writes to an Abbot for a Corody for a Vallet if it be ex rogatu though the Abbot yeilds to it it binds not Therefore I desire that it be entered That this be done ex Rogatu Regis And this Matter touching his Majesty's Pleasure about the Recess Rush Col. 537. was referred to a Committee and to consider the Power of the House to adjourn itself The Sovereign may adjourn the Parliament Sir Simon d'Ewe's Jour 318. Col. 2. as well as the Parliament adjourns itself When a Parliament is called 4 Inst 28. Hutton 61. Vid. Sir Simon d'Ewe's Jour 407. Col. 1. and doth sit and is dissolved without any Act of Parliament passed or Judgment given it is no Session of Parliament but a Convention 18 Rich. 2. The Petitions of the Commons were answered 4 Inst 28. and a Judgment given in the King's Bench reversed but no Act passed Yet without Question it was a Session else the Judgment should not be of Force Many Times Judgments given in Parliament have been executed Ibid. the Parliament continuing before any Bill passed If divers Statutes be continued till the next Parliament Hutton 61. or next Session and there is a Parliament or Session and nothing done therein as to Continuance all the said Statutes are discontinued and gone 8 April Hakewel 180. 1604. In the last Session of the first Parliment of K.
by him commenced he shall not be barred by any Statute of Limitation nor non-suited dismist or his Suit discontinued for want of Prosecution but shall from Time to Time on the rising of the Parliament be at Liberty to proceed to Judgment and Execution Sect. IV. That no Action Suit Process Order Judgment Decree or Proceedings in Law or Equity against the King's original and immediate Debtor for Recovery or obtaining of any Debt or Duty originally and immediately due or payable to his Majesty his Heirs or Successors or against any Accomptant or Person answerable or liable to render an Account to his Majesty his Heirs or Successors for any Part or Branch of their Revenues or other original and immediate Debt or Duty or the Execution of any such Process Order Judgment Decree or Proceedings shall be impeached stayed or delayed by or under the Colour or Pretence of Parliament Yet so that that the Person of any such Debtor or Accomptant or Person answerable or liable to account being a Peer of this Realm or Lord of Parliament shall not be liable to be arrested or imprisoned by or upon any such Suit Process Order Judgment c. or being a Member of the House of Parliament shall not during the Continuance of the Privilege of Parliament be arrested or imprisoned by or upon any such Order Judgment Decree Process or Proceedings Sect. V. Provided That this Act or any Thing therein shall not extend to give any Jurisdiction Power or Authority to any Court to hold Plea in any real or mixed Action in any other Manner than it might have been done before the making of this Act. Jovis Bohun's Collection pag. 27. 13 Feb. 1700. Resolved That no Member have any Privilege in any Case where he is only a Trustee Resolved Nem. Cont. That no Peer of the Realm hath any Right to vote in the Election of any Member to serve in Parliament And Declared by the House as a standing Order Ibid. That no Member have any Privilege except for his Person only against any Commoner in any Suit or Proceeding at Law or Equity for any longer Time than the House shall be actually sitting for the Dispatch of Business in Parliament Martii Ibid. pag. 230. 28 Nov. 1699. Resolved That no Member of this House acting as a Publick Officer hath any Privilege of Parliament touching any Matter done in Execution of his Office APPENDIX The Report of a Case happening in Parliament in the first Year of King James the First which was the Case of Sir Francis Goodwyn and Sir John Fortescue for the Knights Place in Parliament for the County of Bucks Translated out of the French IN this Case after that Sir Francis Goodwyn was elected Knight with one Sir William Fleetwood for the said County which Election was freely made for him in the County and Sir John Fortescue refused notwithstanding that the Gentlemen of the best Rank put him up the said Sir John Fortescue complained to the King and Council-Table he being one of them to wit one of the Privy Council that he had been injuriously dealt with in that Election which does not appear to be true But to exclude Sir Francis Goodwyn from being one of the Parliament it was objected against him That he was Outlawed in Debt which was true scilicet he was outlawed for sixty Pound the 31st of Queen Elizabeth at the Suit of one Johnson which Debt was paid and also the 39th of Eliz. at the Suit of one Hacker for sixtteen Pounds which Debt was also paid and that notwithstanding this the King by the Advice of his Council at Law and by the Advice of his Judges took Cognisance of these Outlawries and directed another Writ to the Sheriff of the said County to elect another Knight in the Place of the said Sir Francis Goodwyn which Writ bore Date before the Return of the former And this Writ recites N. B. Here the King assumes the Power of judging and determining the 〈◊〉 of Members Parliament Sed 〈◊〉 That because the said Sir Francis was outlawed prout Domino Regi constabat de Recordo and for other good Considerations which were well cognisant to the King and because he was Inidonious for the Business of the Parliament therefore the King commanded the Sheriff to elect one other Knight in his Room which Writ was executed accordingly and Sir John Fortescue elected And at last Day of the Return to wit the first Day of the Parliament both Writs were return'd the first with the Indenture sealed between the Sheriff and the Freeholders of Bucks in which Sir Francis Goodwyn and Sir William Fleetwood were elected Knights for the Parliament and also the Sheriff returned upon the Dorse of the Writ That the said Sir Francis was outlawed in two several Outlawries and therefore was not a meet Person to be a Member of the Parliament House The second Writ was returned with an Indenture only in which it was recited That Sir John Fortescue by reason of the second Writ was elected Knight Both these Returns were brought the third Sitting of the Parliament to the Parliament House by Sir George Copping being Clerk of the Crown And after that the Writs and Returns of them were read it was debated in Parliament Whether Sir Francis Goodwyn should be received as Knight for the Parliament or Sir John Fortescue And the Court of Parliament after a long Debate thereupon gave Judgment That Sir Francis Goodwyn should be received And their Reasons were these First because they took the Law to be That an Outlawry in Personal Actions was no Cause to disable any Person from being a Member of Parliament and it was said That this was ruled in Parliament 35th of Queen Elizabeth in the Parliament House in a Case for one Fitz-Herbert Another Precedent was 39 H. 6. Secondly The Pardons of the 39th of Queen Eliz. and 43 Eliz. had pardoned those Outlawries and therefore as they said he was a Man able against all the World but against the Party Creditor and against him he was not But in this Case the Parties were paid Also Thirdly it was said That Sir Francis Goodwyn was not legally outlawed because no Proclamation was issued forth to the County of Bucks where he was Commorant and Resiant And therefore the Outlawry being in the Hustings in London and Sir Francis Goodwyn being Comorant in Bucks the Outlawry no Proclamation issuing to the County of Bucks was void by the Statute of the 31st of the Queen which in such Cases makes the Outlawries void Fourthly It was said that the Outlawries were 1. Against Francis Goodwyn Esq 2. Against Francis Goodwyn Gent. And 3. The Return was of Francis Goodwyn Knight Et quomodo constant that those Outlawries were against the said Sir Francis Goodwyn For these Reasons also they resolved That the Outlawries were not any Matter against Sir Francis Goodwyn to disenable him to be a Knight for the County of Bucks Fifthly It was said That by the Statute
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
Body as the Upper House was for their Privileges Customs and Orders which continual and common Usage hath approved of As to their Charge of having used Precipitancy and Rashness they answered That they used it in such a Manner as in all other Cases they were wont to do scilicet To have first a Motion of the Matter in Controversy and then they caused the Clerk of the Crown to bring the second Day the Writs and Returns and they being thrice read they proceed to the Examination of them and upon Examination gave Judgment which was the true proper Course of the Place As to the House's not having used the King well the Thing being done by his Command they say That they had no Notice before their Sentence that the King himself took any special Regard of that Case but only that his Officer the Chancellor had directed his second Writ as formerly had been done As to the Matter of the Outlawry they said That they understand by his Royal Person more Strength and Light of Reason from it than ever before and yet it was without Example That any Member of the House was put out of the House for any such Cause but to prevent that they had prepared a Law That no outlawed Person for the Time to come should be of the Parliament nor any Person in Execution should have the Privilege of Parliament But they said further That Sir Francis Goodwyn was not outlawed at the Day of his Election for he was not Quinto Exactus the five Proclamations never had been made which Proclamations they in London always spare except the Party or any for him require it and that Exigent was never returned nor any Writ of Certiorari directed to the Coroners to certify it but after his Election which was a Thing unusual the Money being paid and the Sheriffs being long since dead to disenable the said Goodwyn to serve in Parliament that the Exigent was returned and the Names of the deceased Sheriffs put thereto Et ex hoc fuit without doubt that Goodwyn could not have a Scire Facias for there was no Outlawry against him and by Consequence the Pardons had discharged him And they farther shewed to the King That if the Chancellor only could examine Returns then upon every Surmise whether it were true or false the Chancellor might send a second Writ and cause a new Election to be made and thus the free Election of the County should be abrogated which would be too dangerous to the Commonwealth For by such Means the King and his Council might make any Man whom they would to be of the Parliament-House against the Great Charter and the Liberties of England It is found among the Precedents of Queen Elizabeth's Reign Rush 3 vol. pag. 591. on whose Times all good Men look with Reverence that She committed one Wentworth a Member of the House of Commons to the Tower sitting the House only for proposing That they might advise the Queen in a Matter which she thought they had nothing to do to meddle in Quere If not in advising her to marry This notorious Infringement of their Liberties and Privileges See Sir Matthew Hâ—â—'s of Parliament pag. 206 216 217.218 c. in the latter End of Queen Elizabeth seems to be what the Commons complained of and mention in that famed Remonstrance or Declaration of their Privileges printed and directed to King James the First in the Beginning of his Reign viz. Anno Dom. 1604. Wherein they tell that King That they bore with some Things in the latter Times of Queen Elizabeth in regard of her Sex and her Age and not to impeach his Majesty's Succession under whom they then hoped to have them redressed and rectified Whereas on the contrary in that very first Parliament of his Majesty they found That the whole Freedom of the Parliament and Realm had been on all Occasions mainly hewed at As That the Freedom of their Persons in Election had been impeached The Freedom of their Speech prejudiced by often open Reproofs That particular Persons Members who had spoken their Consciences in Matters proposed to the House noted with Disgrace c. That a Goaler had contemned the Decrees and Orders of the House Some of the higher Clergy to write Books against them even fitting in Parliament The inferior Clergy to inveigh against them in their Pulpits c. After which they roundly assert That the Prerogative of Princes may easily See the Force of a Precedent once fixed in the Crown 2 Inst 61. Houâ—â—shead 1 Tom. pag 135. and do daily grow and increase But the Privileges of Subjects are for the most Part at an everlasting Stand They may by good Providence and Care be preserved but being once lost are not to be recovered but with much Disquiet and Disorder Vide ibid. plura To conclude this Treatise as I begun it give me leave to add There is nothing ought to be so dear to the Commons of Great Britain as a Free Parliament that is a House of Commons every Way free and independent either of the Lords or Ministry or c. Free in their Persons Free in their Estates Free in their Elections Free in their Returns Free in their assembling Free in their Speechs Debates and Determinations Free to complain of Offenders Free in their Prosecutions for Offences and therein Free from the Fear or Influence of others how great soever Free to guard against the Incroachments of arbitrary Power Free to preserve the Liberties and Properties of the Subject and yet Free to part with a Share of those Properties when necessary for the Service of the Publick Nor can he be justly esteem'd a Representative of the People of Britain who does not sincerely endeavour to defend their just Rights and Liberties against all Invasions whatsoever See further touching the Rights and Duties of Parliaments in Rapin's History Vol. II. Book XXII especially Page 583 and 595. Sed quae sunt Jura si non Libere Fruantur FINIS Books lately Printed MODERN Entries in English Being a select Collection of Pleadings in the Courts of King's-Bench Common-Pleas and Exchequer viz. Declarations Pleas in Abatement and in Bar Replications Rejoinders c. Demurrers Issues Verdicts Judgments Forms of Continuances Discontinuances and other Entries and of entering Judgments c. in all personal Actions and also all Kinds of Writs Original and Judicial Translated from the most authentick Books but cheifly from Lutwich's Saunders's Ventris's Salkeld's and the Modern Reports and from other Cases lately try'd and adjudg'd and wherein Writs of Error have been brought and Judgments affirm'd Together with Readings and Observations on the several Cases in the Reports as well relating to the Precedents herein as to all other Cases incident to each particular Title and the same abridg'd in a methodical Order To which are added References to all the other Entries in the Books with three distinct Tables one of the Precedents the second of the Cases abridg'd and the third of the Names of the Cases By a Gentlman of the Inner-Temple The Law of Uses and Trusts collected and digested in a proper Order from the Reports of adjudged Cases in the Courts of Law and Equity and other Books of Authority Together with a Treatise of Dower To which is added A compleat Table of all the Matters therein contained And The Law and Practice of Ejectments Being a compendious Treatise of the Common and Statute Law relating thereto To which is added Select Precedents of Pleas special Verdicts Judgments Executions and Proceedings in Error with two distinct Tables to the Whole The Second Edition carefully corrected and revised by the Author The Attorney's Pocket Companion Or A Guide to the Practisers of the Law In two Parts Being a Translation of Law Proceedings in the Courts of King's-Bench and Common-Pleas Containing a Collection of the common Forms beginning with the Original and ending with the Judicial Process Together with an historical as well as practical Treatise on Ejectment To which is also added The Law and Practise of Fines and Recoveies and several other Precedents with some Remarks on the Forms of the Habeas Corpora and Jurata now in Use In two Vols