Liberty of the Subject and when obstructed or denyed to either made the Kingdom deformed and leprous I may with good Reason and Warranty conclude Id. 125. that our Ancestors the Commons of England the Knights Gentlemen Freeholders Citizens and Burgesses of a great and mighty Nation were very far from being in former Times such Vassals and Slaves or so abject poor and inconsiderable as the absurd and malicious Ignorance and Falsities of late Writers have been pleased to make and represent them especially the Author of the Grand Freeholders Inquest and Mr. James Howel c. as if they were only Beasts of Carriage and Burthen ordain'd to be tax'd and talliated and have their Lives Estates and Liberties given away and disposed of without their own Assents If the Commons do only Accuse by any way of Complaint whatsoever Selden's Judicature c. 14. and do not declare in Special against the Party accused then the Suit is the King's and the Party is to be Arraigned or otherwise proceeded against by Commandment Ex parte Domini Regis In the Lower House sit the Speaker Crompton 2.4 Inst 1. and the Knights Citizens Burgesses and Barons of the Cinque-Ports who represent the Body of the whole Commonalty of England All Persons St. 5 Rich. 2 c. 4. Rast 140. and Commonalties which shall be summon'd to Parliament shall come as they have been used and accustom'd of antient Time and he that shall not come having no reasonable Excuse shall be amerced and otherwise punish'd as of antient Time hath been used Vide ante p. 17. Algernon Sidney c. 3. Sect. 38 An Eminent and Noble Author has in his Discourses on Government asserted that the Power of calling and dissolving Parliaments is not simply in our Kings alone And in support of this Assertion gives us the following Reasons viz. First says he the King can have no such Power unless it be given him by Law for every Man is naturally Free and the same Power that makes him King gives him all that belongs to his being King and no more 'Tis not therefore an Inherent but only a Delegated Power and whoever Receives it is accountable to those who gave it for they who give Authority by Commission do always retain more than they Grant Secondly The Law for Annual Parliaments expresly Declares it not to be in the King's Power as to their Meeting nor consequently as to their Continuance for they meet to no Purpose if they may not continue to do the Work for which they meet and it were absur'd to give them a Power of Meeting if they might not continue till the End for which they met were attained Qui Dat Finem Dat Media ad Finem Necessaria the only Reason End why Parliaments do Meet is to provide for the publick Good and they ought to Meet and continue for that End they ought not therefore to be Dissolved till it be accomplished and 'twas for this Reason that the Opinion given by Tresilian that Kings might Dissolve Parliaments at their Pleasure Note was adjudg'd to be a principal part of his Treason See other Reasons there Assign'd and on the whole he concludes that Parliaments have in themselves a Power of Meeting Sitting and Acting for the Publick Good After which Ibid p. 432. he further Prosecutes the same Point and then proceeds to shew That as the Peoples Delegatees or Representatives in Parliament do not meet there by a Power derived from Kings but from those that chuse them so they who Delegate Powers do always retein to themselves more than they give and therefore the People do not give their Delegates an absolute Power of doing what they please but do always retein to themselves more than they confer on their Deputies who must therefore be accountable to their Principalls Vide plura ibid. CHAP. VII The Power of the House of Commons in particular Cases THE House of Commons is a House of Information and Presentment Rush Coll. 217. vol 1. but not a House of Definitive Judgment The House of Commons is a considerable Grand Jury Trials of the Regicides p. 53. 'tis a good Billa vera they return their Orders are Records and that appears also by 6. H. 8. c. 16. where the Words are viz. And the same Licence shall be entred on Record in the Book of the Clerk of the Parliament appointed or to be appointed for the Common's House c. Sir Audley Mervyn's Speech to the Duke of Ormond 13. Heb. 1662. containing their Sum of Affairs in Ireland p. 17. And more directly in their point upon the Trial of Harrison the Regicide Mr. Jessop was produc'd to attest several Orders of the Common's House Mr. Jessop being Clerk of the House Note the said Stat. 6. H. 8. c. 16. says Rast Stat. p. 429. 4. Inst 23. Hales of Parl. 213. 215. That no Member should depart from the Parliament nor absent themselves from the same without the Licence of the Speaker and Commons in Parliament Assembled to be entred upon Record in the Book of the Clerk of the Parliament And yet some Judges have been of Opinion Hob. Rep. 110.111 that the Journals of the House of Commons are no Records but only Remembrances Before the Year 1550. 3. E. 6. Bur. Hist Ref. vol. 2. p. 143. it seems that no Eldest Sons of Peers were Members of the House of Commons and Sir Francis Russel becoming by the Death of his Elder Brother Heir Apparent to the Lord Russel it was on the 21st of January carried upon a Debate that he should abide in the House as he was before But this was by a special Order so it is entered in the Original Journal of the House of Commons and is the first Journal that ever was taken in that House 1. Car. 1. 1625. Resolved Rush ib. that common Fame is a good Ground of Proceeding for this House either by Enquiry or Presenting the Complaint if the House find Cause to the King or Lords 26 Jan. 28 Hen. 6. Selden's Judicat p. 29. Vid. id 38 The Commons required the Duke of Suffolk might be committed to Ward for that the General Fame went of him c. The Lords on Consultation with the Justices thought the same to be no good Cause of Commitment unless some special Matters were objected against him It is certain Pettyt's Miscell Pref. c. p. 5. and not to be deny'd That in elder Time the People or Free-men had a great Share in the Publick Council or Government For Dion Cassius or Xiphiline out of him in the Life of Severus assures us Apud hos i. e. Britannos Populus magna ex Parte Principatum tenet It was not in the Power of all the Tenants in Capite in England Id. 47 48. tho' with the King's Consent to bind and oblige others or to make or alter a Law sine Assensu Communitatis Regni who had Votum consultivum decisivum an Act of Authority and Jurisdiction as well in assenting to Spiritual Laws as Temporal
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 the Realm and every particular Member thereof either in Person or by Representation upon their own Free Elections are by the Laws of this Realm deemed to be personally present 1 Jac. 1. c. 1. Sir Edward Cook in his Epistle to the 9th Report says There is a threefold End of this great and honourable Assembly of Estates First That the Subject might be kept from offending that is That Offences might be prevented both by good and provident Laws and by the due Execution thereof Secondly That Men might live safely in Quiet And thirdly That all Men might receive Justice by certain Laws and Holy Judgments that is to the End that Justice might be the better administred that Questions and Defects in Laws might be by this High Court of Parliament planed and reduced to a Certainty and that Claims of Right might be adjudged and determined This Court being the most supream Court of this Realm is a Part of the Frame of the Common Laws and in some Cases doth proceed legally according to the ordinary Course of the Common Law The House of Lords cannot exercise any Power as an House of Parliament Sir R. Atkin's Argument f 51. or as a Court for Error without the House of Commons be in Being at the same Time Both Houses must be prorogued together and dissolved together By the Law Ib. 59. Parliaments ought to be very frequent Before the Conquest as it is untruly call'd by the Law Parliaments were to be held twice a Year as appears by King Edgar's Laws So it was ordained by King Alfred By the Stat. of 4 Ed. 3. c. 14. Parliaments ought to be once a Year and oftner if need be And in 36 Ed. 3. c. 10. to be once a Year without Restriction if need be By 16 Car. 2. c. 1. these Acts are declared to be in Force And further it is declared and enacted That the holding of Parliaments shall not be discontinued above three Years at the most The Parliament is a Court of very great Honour and Justice Plow Com. 398. 11 Col. 14 The Parliament can do no Wrong 6 Col. 27. Sir R. Atkyne Arg. 60. of which no Man ought to imagine a Thing dishonourable An Offence committed in Parliament is a very very high Offence but the higher it is the more proper it is for their Judicature and that Court is arm'd with a Power to punish the highest Offences and the highest Offenders Yet a Parliament may err Plow Com. 397. 9 Col. 106. Ibid. for they are not infallible but the Law hath provided a Remedy against those Errors and a way to reform them A subsequent Parliament may reform the Errors of a preceeding Parliament But to say that they will be partial Ibid. or unjust or corrupt or do any Thing out of Malice is to raise a Scandal upon the whole Nation Ibid whose Representative they are If any Offence whatever be committed in the Parliament by any particular Member See Husband's Collections ante p. 1. p. 67. it is an high Infringment of the Right and Privilege of Parliament for any Person or Court to take the least Notice of it till the House it self either has punish'd the Offender or referred them to a due or proper Course of Punishment To do otherwise would be to make the Highest Court an Offender and to charge them with Injustice Their Right and Priviledge so far extends Ib. 61. that not only what is done in the very House sitting the Parliament but whatever is done relating to them or in pursuance of their Order during the Parliament is no where else to be punish'd but by Themselves or a succeeding Parliament tho done out of the House Either House doth ever for the most part shew it self so careful to keep firm Correspondence with the other Sir Simon d'Ewes Journal 186. as that when a Bill hath pass'd either of the said Houses and is sent to the other it doth for the most part pass and is neither dash'd nor alter'd without very great Cause upon mature deliberation and usually also not without Conference desir'd and had thereupon that so full Satisfaction may be given to that House from which the Bill so rejected or alter'd was sent Pessima Gens humani Generis always abhorr'd a Parliament Preface to Petyt's Miscel Parlementar And the Reason thereof is demonstrative because they all knew they shou'd then be call'd to an impartial and strict Account and be punish'd according to their Demerits It was said by the Lord Bacon to Sir Lionel Cranfeild Ibid. newly made Lord Treasurer That he would recommend to his Lordship and in him to all other great Officers of the Crown one considerable Rule to be carefully observ'd which was Remember a Parliament will come The King at no Time stands so highly in his Estate Royal Petyt 's Miscel Parliament 6. Vide Cromp. Jur. 10. as in the Time of Parliament wherein the King as Head and they as Members are conjoyn'd and knit together in one Body Politic So as whatsoever Injury during that Time is offer'd to the meanest Member of the House is to be judged as done against the King's Person and the whole Court of Parliament The Prerogative of Parliament is so great Ibid. That all Acts and Processes coming out of any inferior Courts must cease and give place to that the highest Statutes in England are made not only by the Princes Pleasure Fortescue 42. but also by Assent of the whole Realm So that of Necessity they must procure the Wealth of the People and in no wise tend to their hindrance It cannot otherwise be thought Ibid. but that they are replenish'd with much Wit and Wisdom seeing they are ordain'd not by the Device of one Man alone or of a hundred wise Counsellors only but of more than three hundred learned Men now 558 that ought to be freely Elected by the People Acts of Parliament are made with such Gravity Wisdom 11. Co. 63. Fortesc c. 18. c. 40. and Universal consent of all the Realm and for advantage of the publick Wealth that they are not from the General and ambiguous Words of a Subsequent Act to be abrogated Acts of Parliament have been tender of racking the King's Subjects for Words 1. Mod. Rep. 234 and the Scripture Discountenances Mens being made Transgressors for a Word Every Proviso in an Act 1. Siderf 155. is not a determination what the Law was before for they are often added for the Satisfaction of those that are ignorant of the Law The King of England can neither by himself or his Ministers Fortescu p. 84. impose any Tallages or other Burdens on his Subjects or alter their Laws or make new Laws without Assent of the whole Kingdom in Parliament CHAP. III. Of the Power and Authority of Parliaments THE Parliamentary Power Hollinsh Vol. 1. p. 173. as it is in the Legislative Capacity consisting of the Agreement and Act of all the three Estates King Lords and Commons to make it Binding it imports no
this Realm and with every one of them as the Quality of the Persons and Matter shall require And also the said Laws and every of them to abrogate adnul amplifie or diminish as it shall be seem to the King and the Nobles and Commons of this Realm present in Parliament meet and convenient for the Wealth of this Realm The Power and Jurisdiction of the Parliament for making of Laws in proceeding by Bill 4 Inst 36. is so transcendent and absolute as it cannot be confined either for Causes or Persons within any Bounds Si Antiquitatem spectes est vetustissima si Dignitatem est honoratissima si Jurisdictionem est capacissima The whole Parliament which should best know its own Power affirms Speed's Hist f. 914 Rot. Parl. 1 R. 3. In Cotton's Abridgment f. 713 714 that the Court of Parliament is of such Authority and the People of this Land of such a Nature and Disposition as Experience teacheth that the Manifestation and Declaration of any Truth or Right made by the Three Estates of this Realm assembled in Parliament and by Authority of the same maketh before all other things most Faith and certain quieting of Mens Minds and removeth the Occasion of Doubts Parliamentum omnia Potest says the 4 Inst 74.76 The Parliament is of an absolute and unlimited Power in things Temporal Sir Rob. Atkyns's Argument c. 50. Ibid. within this Nation The Parliament hath the highest and most sacred Authority of any Court it hath an absolute Power It is the highest Court in the Realm as is acknowledged by our most learned and gravest Writers and Historians A Man gives Land to one and to his Heirs Males Crompton 20. b. Dr. and Student in that Case his Heirs Females shall also inherit and this was adjudged in Parliament One of the fundamental and principal Ends of Parliaments was Petit's Preface to Ancient Rights c. p. 41. for the Redress of Grievances and easing the Oppressions of the People And the Mirror of Justices says 6.1 p. 4. and 5. That Parliaments were instituted to hear and determine the Complaints of the wrongful Acts of the King the Queen and their Children and especially of those Persons against whom the Subjects otherwise could not have common Justice for wrongs so by them done Covient per droit que le Roy ust Companions pur oyer et terminer aux Parliaments trestouts les breues et plaints de Torts de le Roy de la Roigne Horn's Mirror p. 9. et de lour Enfants et de Eux specialment de que Torts len ne poit aver autrement Common droit i. e. The King ought by Law to have Companions or associates to hear and determine in Parliament of all Writs and Plaints of all Torts or Wrongs as well of the King as of the Queen and their Children and especially of those Great Ones where one cannot otherwise have Common right for those wrongs The greater the Persons are Sir Rob. Atkyns Argument p. 45. if they are in the Rank of Subjects they must be subject to the King's Laws and they are the more proper for the Undertaking and Encounter of this High Court It will not be impar congressus King John had resign'd up the Crown of England to the Pope Id. 37. by the Hand of Pandulphus his Legat Mat. Paris and sordidly submitted to take the Crown at his Hand again Rot. Parl. 40. E. 3. No 7. 8. at a yearly Tribute In the Reign of our Noble King Edward the Third the Pope demanded this Rent and all the Arrears But the Prelates Dukes Counts Barons and Commons resolved that neither the King nor any other could put the Realm nor the People thereof into Subjection sans l'assent de eux without their Assent This intimates Sir R. Atkyn's Arg. p. 50. that with their joynt Consent the Crown may be disposed of And it was the highest Resolution in Law in one of the highest Points in Law concerning the King's claim of an Absolute Power and in a Time when the Pope was in his Meridian Height It is the proper Work of this Supreme Court to deal with such Delinquents Ibid. as are too high for the Court of King's Bench or other ordinary Courts Daughters and Heirs apparent of a Man or Woman 4 Inst 36. may by Act of Parliament inherit during the Life of the Ancestor Ante 69. It may adjudge an Infant or Minor to be of full Age. Ibid. It may Attaint a Man of Treason after his Death Ibid. It may Naturalize a meer Alien Ibid. and make him a Subject born It may bastard a Child Ibid. that by Law is Legitimate viz. begotten by an Adulterer the Husband being within the four Seas It may Legitimate one that is Illegitimate Ibid. and born before Marriage absolutely It may Legitimate secundum quid etiamque simpliciter 21 Rich. 2. The Lords Appellants accused the Duke of Gloucester of Treason Selden's Judicature 91. and tho' they knew he was dead they pray'd the King that he might be brought to his Answer The King sent his Writ c. they desired Judgment and had it So Robert Possington was impeached at the Parliament at Westminster Id. 95. and found Guilty long Time after he was dead and so forfeited his Estate John of Gaunt Duke of Lancaster had by Catherine Swinford 4 Inst 36. Cotten's Record p. 363. before Marriage four illegitimate Children Henry John Thomas and Joan. At the Parliament holden 20 Rich. 2. the King by Act of Parliament in Form of a Charter doth Legitimate the three Sons and Joan the Daughter Thomas Cromwel Vide post 4 Inst 36. Earl of Essex was attainted by Parliament and forth-coming to be heard and yet never call'd to answer in any of the Houses of Parliament and resolved by the Judges that if one be Attainted by Parliament it can never come in question after whether he were call'd or not call'd to answer for the Act of Attainder being pass'd by Parliament did bind Where by Order of Law a Man cannot be Attainted of High-Treason Id. 39. unless the Offence be in Law High-Treason he ought not to be Attainted by general Words of High-Treason by Authority of Parliament as sometimes hath been used but the High-Treason ought to be especially exprest seeing that the Court of Parliament is the highest and most honourable Court of Justice and ought to give example to inferior Courts Acts against the Power of the Parliament subsequent bind not Id. 42. It is against the Power and Jurisdiction of the Parliament the Liberty of the Subject and unreasonable i. e. Illegal The Stat. 11. Rich. 2. c. 5. Id. 42. That no Person should attempt to revoke any Ordinance then made was repealed for that such Restraint is unreasonable c. An Act 11 Rich. 2 c. 3. Ibid. That no Man against whom any Judgment or Forfeiture was given shou'd sue for Pardon or Grace c. was holden to be unreasonable without Example and against the Law and
Lex Parliamentaria OR A TREATISE OF THE LAW and CUSTOM OF PARLIAMENTS Just Published Parliamentary and Political TRACTS written by Sir ROBERT ATKINS Knight of the Bath and late one of the Judges of the Court of Common-Pleas Containing I. THE Power Jurisdiction and Privilege of Parliament and the Antiquity of the House of Commons asserted Occasioned by an Information in the King's-Bench by the Atorney-General against the Speaker of the House of Commons II. An Argument in the great Case concerning Election of Members to Parliament between Sir Samuel Barnardiston Plantiff and Sir William Soame Sheriff of Suffolk Defendant in the Court of King's-Bench in an Action upon the Case and afterwards by Error sued in the Exchequer-Chamber III. An Enquiry into the Power of dispensing with Penal Statutes Together with some Animadversions upon a Book writ by Sir Edward Herbert Lord Chief Justice of the Court of Common-Pleas intitled A short Account of the Authorities in Law upon which Judgment was given in Sir Edward Hale's Case IV. A Discourse concerning the Ecclesiastical Jurisdiction in the Realm of England V. A Defence of the late Lord Russels's Innocency by way of Answer or Confutation of a Libellous Pamphet intitled An Antidote against Poison with two Letters of the Author of this Book upon the Subject of his Lordship's Tryal VI. The Lord Russel's Innocence further defended by way of Reply to an Answer intitled The Magistracy and Government of England vindicated VII The Lord Cheif Baron Atkins's Speech to Sir William Ashurst Lord Mayor Elect of the City of London at the Time of his being sworn in their Majesties Court of Exchequer Lex Parliamentaria OR A TREATISE OF THE LAW and CUSTOM OF PARLIAMENTS Shewing their Antiquity Names Kinds and Qualities Of the three Estates and of the Dignity and Excellency of Parliaments their Power and Authority Of the Election of Members of the House of Commons in general their Privilege Qualifications and Duties Of the Electors and their Rights Duties and Manner of Elections Of the Returns to Parliament the Sheriff's and other Officers Duty therein Of the Manner of Election of the Speaker and of his Business and Duty Of the Manner of passing Bills and the Orders to be observed in the House of Commons Of Sessions of Parliament as also of Prorogations and Adjournments Together with the proper Laws and Customs of Parliaments With an APPENDIX of a Case in Parliament between Sir Francis Goodwyn and Sir John Fortescue for the Knights Place for the County of Bucks 1 Jac. I. The SECOND EDITION with Large Additions LONDON Printed for J. STAGG in Westminster-Hall THE PREFACE IT must be confessed that Lex Parliamentaria or Parliamentary Law cannot be meant or intended to signify any Prescription or Application of Laws to that Power which in itself is boundless and unlimited This Collection therefore only shews what Parliaments have done and not what they may or ought to do The Parliament alone can judge of such Matters as concern their own Rights Authorities or Privileges And yet seeing the Phrase Parliamentary Law or Law of Parliaments has for some Ages past obtained Lord Coke Sir Matth. Hales's c. and that too among Authors of great Name I hope the present or any future Parliament will not censure me for a Word misapplied or for endeavouring to illustrate that Authority which is improperly denominated Parliamentary Law The Parliament itself is no doubt properly to be stiled The fundamental Law and Constitution of this Kingdom as it comprehends all Legal Powers whatsoever But as God and Nature influenced the Voice and Desires of the People to this Form of Government by Parliaments so it must be confessed that the same supream Power also influenced their Voices and Desires to establish this Parliamentary Government for the Safety and Preservation of the Governed and thereby constituted the Salus Populi to be the supream Law to whose Support all other Laws Powers and Authorities ought to tend 'Tis for this End Kings are created and for this End Parliaments assemble that so the Polity and Government of the Nation may be administered with Honour and with Safety for the Good of the whole Community Nor can it be denied but that Parliaments in former Times esteem'd it as their most incumbent temporal Duty to oversee recognize and resirain within the Bounds of Law the Commands and Acts of Kings and to take care that that great and honourable Trust reposed in the Hands of the Prince for the Good of the People might be rightly and duly administered and not perverted or abused to the Invasion of their Rights or the Subversion of the Constitution Brac p. 34 Flet p. 2.17 vide hic p. 89. 'Twas the Sense of this Duty of Parliaments induced both Bracton an eminent Judge under King Henry III. and Fleta a learned Lawyer in King Edward I's Time to record this great Duty of Parliaments to succeeding Ages And from this very Motive it was See the Preface to Privilegia Londini p. 6 7. that our antient Parliaments were so cautious as to oblige our Kings to swear at their Coronations Concedere justas Leges quas vulgus elegerit That they would grant such just Laws as the common People should choose See this Oath admirably well explained in Sadler's Rights of the Kingdom Page 71 88 91. c. From all which and much more that may be added I think it clearly appears That both Kings and Parliaments Lords and Commons and all Laws of Government whatsoever were in their first Intention instituted and ordained for the sole Good and Benefit of the People And where-ever all or any of them are perverted from that View they loose the Nature of their first Intention and ought to receive a contrary Denomination And from the foregoing Particulars I at present apprehend that the Lex Parliamentaria or Fundamental Law of Government in this Nation was not originally founded on any Capitulation or Compact between the King and the People as is usually done in Contracts of Bargains and Sales or other Purchases For that would infer a separate Interest between Prince and People But who will say that a British Monarch can by Law have a distinct Interest from his People Also the mutual Obligation that is established between the Prince and People by the Laws of this Kingdom have laid an unsurmountable Bar against any such Capitulation or contracting Project For by the original and inherent Nature of our Government there is such amutual Relation and political Connection created between the King and his People as in that natural Relation and Connection between the Head and the Members of the Body so that in neither Instance can the Head say to the Members I have no need of you c. This mutual Relation between Prince and People seems to have been interwoven in the fundamental Being and impressed in the very Heart of our Constitution c. The Publisher here thinks fit to declare That this Book has
received no little Advantage from a Manuscript of that judicious and learned Judge the late Mr. Justice Price who having been many Years a Member of the House of Commons had made divers curious historical Collections with several Notes and References relating to the Subject Matter hereof And in this Edition the Reader may find collected from authentick Records and Histories all that is necessary to be known touching the Rights and Privileges of Parliaments and in a great Measure the legal Prerogatives of the Prince and just Liberties of the People The CONTENTS CHAP. I. Of Parliaments in general Shewing their Antiquity Names Natures Kinds and Qualities British Saxon c. Ordinarily annual and without Summons Extraordinary on Summons pro arduis c. Of the three Estates Bishops no essential Part excluded elected created by Patent Commons ever represented and how Their Right to a Free Election of all Magistrates c. and Consent to all Aids and Taxes This Right invaded by the Norman Kings William I. and II. Reslored by Henry I. Of English Parliaments in his Time who the Magnates and Barones Regni then were Of Coronation Oaths c. Page 1. CHAP. II. Of the Dignity and Excellency of Parliaments The Supream Power of the Kingdom and when Free Protectors of the People's Rights and Preservers of the legal Government and Constitution Of the three Estates and to what End assembled Lords and Commons anciently sate together The highest Court of Justice c. Page 49. CHAP. III. Of the Power and Authority of Parliaments superior to the Law may judge the Greatest remove evil Ministers redress Grievances of all Kinds Their three Powers viz. Consultive Legislative and Judicial their absolute Power over all Persons c. Page 66. CHAP. IV. and V. Of the Power Authority and Jurisdiction of the House of Peers distinct from the Commons Page 90 101. CHAP. VI. and VII Of the seperate Powers and Authorities of the House of Commons both in general and in particular Cases Page 109 114. CHAP. VIII Shews their Power over their own Members and how executed c. Page 136. CHAP. IX Treats of the Election of Members of the House of Commons in general and of the several Statutes relating thereto Page 149. CHAP. X. Shews who may be Electors and theâ—r Rights Duties and Manner of Election with the Statutes and Oaths referring thereto Page 156. CHAP. XI Who may be elected their Qualifications and Duties c. with such Statutes Oaths c. as concern the same Page 180. CHAP. XII Of the Returns to Parliament and of Amendments of Returns the Sheriffs and other Officers Duty therein with such Statutes and Oaths as relate thereto Page 226 CHAP. XIII and XIV Of the Manner of Election of the Speaker of the House of Commons and of the Business and Duty of the said Speaker Page 263 272. CHAP. XV. and XVI Of Orders to be observed in and by the House of Commons or the Members thereof Page 278 285. CHAP. XVII Of the Manner of passing Bills c. in the said House Page 306. CHAP. XVIII XIX and XX. Concerning Committees in general as also of the Orders Powers and Proceedings of Grand Committees and of Standing Committees c. Page 327 336 341 CHAP. XXI Of Sessions of Parliament what makes a Session as also of Prorogations and Adjournments Page 347 Note CHAP. XXII Of the proper Laws and Customs of Parliament and of Acts and Ordinances Page 358. CHAP. XXIII Of the Privilege of Parliament with the Statutes for regulating it c. Page 379. The APPENDIX being the Case of Sir Francis Goodwyn admitted a Member though returned outlawed c. Concluding with divers additional Pariculars relating to the Privileges and Duties of Parliaments Page 415. Lex Parliamentaria OR A TREATISE OF THE LAW and CUSTOM OF THE PARLIAMENT of England c. CHAP. I. Of Parliaments in General their Definition constituent Parts c. with a brief Inquiry into the Original and Nature of our British Saxon and Norman Parliaments THE Word Parliament Minshew in verbo Parlamt in French Parlement and in Spanish and Italian Parliamento is Spelm. Gloss verbo Debate See Coke on Littl. p. 110.164 in its principal Part deriv'd from the French Parler to speak and as Lord Coke and some Others conceive The General Council or National Assembly of this Kingdom is so call'd Spelm. Gloss in verbo Parlament Hales of Parliaments 122. Elsing of Parliaments 167. 4 Inst 8. Bohun's Collection 353. because every Member thereof should in the Matters there debated Parler la Mente i. e. Freely speak his Mind And tho some Authors have oppugned this Derivation yet tis evident from the very Nature and Essence of a Parliament That every Member thereof ought to speak his Mind freely in what relates to the Publick Welfare And this Freedom of Speech is now constantly claimed by the Speaker of the House of Commons at the first Meeting of every New Parliament and in insisted on as a Claim of Right The Word Parlament is in France now taken for one of those High Courts of Justice in that Kingdom Minshew ut supra See Vincent Lupanus lib. 2 c. Parliament No. 28. wherein Men's Causes and Differences are publickly heard and determined without further appeal Of these Parliaments there are Seven viz. 1. Paris now superiour to the Rest 2. Vide Du Haillan Pasquier c. of the Fr. Parlements Tholouse 3. Grenoble 4. Aix 5. Bourdeaux 6. Dijon 7. Roan whereto some add an 8th viz. Rhenes in Bretaigne But with us in England or rather Great Britain The universal Assembly of all the Estates of the Kingdom i. e. The King Sir Tho. Smith De Repub. Angl. lib. 2. c. 1.2 Lords and Commons wherein every Freeman of the Kingdom is said to be present either in Person or by Representation and who are met together for debating of Matters touching the Commonwealth especially for the enacting of Laws and Statutes is properly called a Parliament Cro. Jur. f. 1. c. Cambd. Brit. 6. c. 4 Inst 1. and such Laws and Statutes when agreed on are significantly term'd Acts of Parliament Indeed various Authors Of the three Estates viz. 1. King Cotton's Records 709.710 4 Inst 1. Hales of Parliaments 1. Finch's Nemotecnia lib. 2. c. 1.2 The Lords Sadler's Rights of the Kingdom p. 79. to 93. Kelway's Reports 184. Stamf. P. Cor. 153. See Bagshaw's Reading p. 17. to 21. have had various Sentiments and even Acts of Parliament differ about the three Estates some alledging the King to be the Head of but not included in the Number assert That the three Estates are 1st The Lords Spiritual 2dly The Lords Temporal And 3dly The Commons but Others more rationally say The King is one of the three Estates which compose the Parliament and that the second Estate is constituted of both the Spiritual and Temporal Lords jointly for say they Tho the Archbishops and Bishops are denominated Spiritual yet they sit in Parliament as Temporal
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
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
Burgesses of the said High Court have had used c. Vide ante 176. That every Person which hereafter shall be elected a Knight Stat. 5. Eliz. c. 1. Knights Citizens c. before their sitting in Parliament to take the Oath of Supremacy before the Lord Steward or his Deputies and for the contrary to lose their Memberships and incur such Penalties as if they had sat without Election Return c. Citizen or Burgess or Baron for any of the Five Ports for any Parliament or Parliaments hereafter to be holden shall before he enter the Parliament House or have any Voice there openly receive and pronounce the Oath The Oath of Supremacy mentioned in this Act is abrogated by the Stat. 1 W. M. ch 1. and a new one appointed which see ante p. 177. expressed in the Stat. 1 Eliz. ch 1. England commonly called the Oath of Supremacy before the Lord Steward of the Queen's Houshold or his Deputy or Deputies for that Time to be appointed and that he which shall enter into the Parliament House without taking the said Oath shall be deemed no Knight Citizen Burgess nor Baron for that Parliament nor shall have any Voice but shall be to all Intents Constructions and Purposes as if he had never been returned nor elected Knight Citizen Burgess or Baron for that Parliament and shall suffer such Pains and Penalties as if he had presumed to sit in the same without Election Return or Authority That all and every the Knights Citizens Stat. 7. Jac 1. c. 6. Knights Citizens c. at any Parliament or Sessions to take the Oath of Allegiance before the Lord Steward c. ere they be permitted to sit Burgesses and Barons of the Five Ports of the Commons House of Parliament at any Parliament or Session of Parliament before he or they shall be permitted to enter into the said House shall make take and receive the Oath of Obedience mentioned in the Statute of 3 Jac. 1. ch 4. commonly called the Oath of Allegiance The Oath of Allegiance mentioned in this Act is abrogated by the Stat. of 1 W. M. c. 1. as aforesaid post 198. before the Lord Steward of the King's Houshold his Deputy or Deputies That none which shall be a Member of the House of Commons England shall vote in the said House St. 30 C. 2. c. 1. Members of the House of Commons shall not vote or sit there during any Debate after their Speaker chosen until they have taken the Oaths of Allegiance and Supremacy and subscribed the Test between Hours of 9 and 4 in a full House or sit there during any Debate in the said House after their Speaker is chosen until such Member shall first take the several These Oaths are abrogated by Stat. 1 W. M. c. 1. Oaths of Allegiance and Supremacy and make subscribe and audibly repeat the Declaration in this Act contained commonly called the Test which said Oaths and Declaration shall be in this and every succeeding Parliament solemnly and publickly made and subscribed betwixt the Hours of Nine in the Morning and Four in the Afternoon by every such Member at the Table in the Middle of the said House and whilst a full House of House is there duly sitting with their Speaker in his Chair and that the same be done in the House in such-like Order or Method as the House is called over by If any Member of the House of Commons shall presume to do any thing contrary to this Act Members acting contrary shall be adjudged Popish Recusants convict and suffer as such and be disabled to hold any Office or Place of Profit or Trust in England or is Dominions to sit or vote in Parlia ment bring any Action or Information at Law or Suit in Equity be Guardian of any Child Executor or Administrator of any Person or capable of any Legacy or Deed of Gâ—â— and forfeit 500 l for every Offence to any that will sue by Action of Debt c. where no Essoign c. every Member so offending shall from thenceforth be deemed and adjudged a Popish Recusant Convict to all Intents and Purposes and shall forfeit and suffer as a Popish Recusant Convict and shall be disabled to hold or execute any Office or Place of Profit or Trust England Civil or Military in any of His Majesty's Realms of England or Ireland Dominion of Wales or Town of Berwick upon Tweed or in any of His Majesty's Realms Islands or Foreign Plantations to the said Realms belonging and shall be disabled to sit or vote in Parliament or to sue or use any Action Bill Plaint or Information in course of Law or to prosecute any Suit in any Court of Equity or to be Guardian of any Child or Executor or Administrator of any Person or capable of any Legacy or Deed of Gift and shall forfeit for every wilful Offence against this Act the Sum of 500 l. to be recovered or received by him or them that will sue for the same and to be prosecuted by any Action of Debt Suit Bill Plaint or Information in any of His Majesty's Courts at Westminster where no Essoign Protection or Wager of Law shall lie It shall be lawful to and for the House of Commons as often as they shall see Occasion Members obliged to take the said Oaths and subscribe the Test in the House as often as the House shall think fit and Members acting contrary and presuming to sit incapacitated during that Parliament to order or cause all or any of the Members of Parliament openly in their House to take the said Oaths England and to make and subscribe the said Declaration at such Times and in such Manner as they shall appoint And if any Member of the House of Commons shall contrary to such Order made by their House wilfully presume to sit therein without taking the said Oaths and making and subscribing the said Declaration every such Member so presuming to sit shall be adjudged and is declared to be uncapable and disabled in Law to all Intents and Purposes to sit in the said House or give any Voice therein during that Parliament And in Case any Member of the House Such Members Election declared void and the Speaker by Order of the House to issue his Warrant for a new Election shall by virtue of this Act be disabled to sit or vote in the House then without any further Conviction or other Proceedings against such Member the Place for which he was elected is hereby declared void and a new Writ shall issue out of Chancery by Warrant from the Speaker and by Order of the said House for the Election of a new Member in the Place of such Member so disabled to all Intents and Purposes as if such Member or Members were naturally dead c. During the taking the Oaths and subscribing the Test all other Proceedings in Parliament to cease and the Oath Declaration and Subscription with a Schedule of the Names of the Persons taking and
The House may be adjourned two Ways to wit by the King i. e. by Writ or by the House itself the last is their own voluntary Act which the King cannot compel for Voluntas non cogitur Note Rush 3 Part Vol. I. pag. 385. Vnder the Number of forty Members the House of Commons is not reputed a House so as to make an Adjournment CHAP. XXII The proper Laws and Customs of Parliament THE Laws 4 Inst 50. Customs Liberties and Privileges of Parliament are better to be learned out of the Rolls of Parliament and other Records and by Precedents and continual Experience then can be expressed by any one Man's Pen. If an Ordinance only be entered in the Parliament Roll Sir William Jones pag. 104. and it hath the Reputation and Use of an Act of Parliament that makes it an Act of Parliament If any doubt be conceived upon the Words or Meaning of an Act of Parliament Rush Vol. 3. pag. 77 78. it is good to construe it according to the Reason of the Common Law When Laws shall be altered by any other Authority Ibid. pag. 653. than that by which they were made says King Charles the First in his Speech at Newark to the Inhabitants of Nottingham 1642. your Foundations are destroyed As every Court of Justice hath Laws and Customs for its Directions 4 Inst 15. some by the Common Law some by the Civil and Canon Law some by peculiar Laws and Customs c. so the High Court of Parliament suis propriis Legibus Consuetudinibus subsistit It is Lex Consuetudo Parliamenti Ibid. that all weighty Matters in any Parliament moved concerning the Peers of the Realm or Commons in Parliament assembled ought to be determined adjudged and discussed by the Course of Parliament and not by the Civil Law nor yet by the Commons Laws of this Realm used in more inferior Courts which was so declared to be secundùm Legem Câ—nsuetudinem Parliamenti concerning Peers of the Realm by the King and all the Lords Spiritual and Temporal and the like pari Ratione is for the Commons for any Thing moved or done in the House of Commons and the rather for that by another Law and Customof Parliament the King cannot take Notice of any Thing said or done in the House of Commons but by the Report of the House of Commons and every Member of Parliament hath a judicial Place and can be no Witness And this is the Reason that Judges ought not to give any Opinion of a Matter of Parliament because it is not to be decided by the Common Laws but secundùm Legem Consuetudinem Parliamenti and so the Judges in divers Parliaments have confessed And some hold That every Offence committed in any Court punishable by that Court must be punished proceeding criminally in the same Court or in some higher and not in any inferior Court and the Court of Parliament hath no higher By the ancient Law and Custom of Parliament Id. 14. a Proclamation ought to be made against being armed against Games Plays and strange Shews c. during the Parliament that the Parliament may not be disturbed or the Members thereof who are to attend arduous and urgent Business be not withdrawn Dec. 15. 1597. Resolved Towns Col. 116. Vide. Sir Simon d'Ewe's Jour 505. Col. 1. according to the ancient Custom of the House That all the Members of the same which did speak against passing of the Bill should go forth of the House to bring the Bill into the House again together with the Residue of the Members which went out before with the passing of the said Bill All the Members of the House being gone forth except Mr. Speaker and the Clerk Mr. Controller brought in the Bill in his Hand accomanied with all the Members of the House and delivered the said Bill to Mr. Speaker 17 Dec. 1597. The same Ceremony on the like Occasion omitted Id. 117. Sir Simon d'Ewe's Jour 574. Col. 2. upon a Motion of the Speaker and ordered accordingly upon the Question 18 Dec. 1601. Towns 332. As the Speaker was coming to the House in the Morning the Pardon was delivered unto him which he took and deliver'd it to the House which they sent baek again because it was not brought according to Course The Subsidy of the Clergy was sent in a Roll according to the usual Acts Id. 333. To which Sir Edward Hobby took Exceptions because it was not sent in a long Skin of Parchment under the Queen's Hand and Seal so it was sent back and then the other was sent Si les Commons grant Poundage pur quatre Ans Brook 119.4 Crompt 8. les Seigneurs grant nisi pur deux Ans le Bill ne serra re-bayl al Commons mes si les Commons grant nisi pur deux Ans les Seigneurs pur 4 Ans la ceo serra redeliver al Commons Et in cest case les Seigneurs doient fair un Scedule de lour Entent ou d'endorcer le Bill en cest Form Les Seigneurs ceo assentont pur durer pur quatuor Ans Et quant les Commons ount le Bill arere ne volent assenter a ceo ceo ne poet estre un Act mes si les Commons volent assenter donques ils endorce lour Respons sur le Margent de bass deins le Bill en tiel Form les Commons sont assentuz al Scedule les Seigneurs a mesme cestuy Bill annex donques serra bayl al Clerk del Parliament If the Commons grant Poundage for four Years and the Lords grant it but for two Years the Bill shall not be sent back to the Commons but if the Commons grant but for two Years and the Lords for four Years there it shall be redelivered to the Commons And in that Case the Lords may make a Schedule of their Intent or Endorse the Bill in this Form The Lords do assent to the continuing for four Years And when the Commons have the Bill again and will not assent to it that cannot be an Act But if the Commons will assent then they endorse their Answer on the Margin below within the Bill in this Form The Commons do assent to the Schedule of the Lords annexed to this Bill and then it shall be sent to the Clerk of the Parliament The Custom and Privilege of this House hath always been first Vide Sir Simon d'Ewe's Jour 483. Col. 2. to make Offer of the Subsidies from hence then to the Upper House except it were that they present a Bill unto this House with Desire of their Assent thereto and then to send it up again And Reason it is that we should stand upon our Privilege seeing the Burden resteth upon us as the greatest Number per Francis Bacon 35 Eliz. 1592. The Lord Chancellor in Parliament offered the Commons a Writ to deliver their Burgess but they refused it Petyt 's Miscel Parl. 4. in Margin as being clear of Opinion That all their Commandments and Acts were to be done and executed by
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
as may appear for an Instance in their Declaration or Protestation to Edward the Third in Parliament which concludes thus For they will not be obliged by any Statute or Ordinance made without their Assent In a MS. M. S. Penes W. Bohun p. 5 6. Treatise written by Mr. Rymer entitled an Inquiry into the antient Method of passing Bills in Parliament I find it to have been the usual Practice Temp. Ed. 3ij c. See Annis Edw. 3. 14 15 16 20 21 22. 36. 33 c. For the Commons to have first their Petitions and Bills answered i. e. their Grievances Redress'd and then to Grant their Aids and Supplies But note These Matters often proceeded pari Passu And sometimes Aids were granted by the Commons on express Condition That the King Grant the Petitions Exhibited to him c. But in 47 E. 3. The Subsidy or Aid Ibid. p. 7. is commanded to be first Treated on or Debated which says my Author I remember not to have been in any other Parliament whatsoever save that of 7 R. 2. And Note 11 R. 2. The Commons Demand it as of Right not to Grant Subsidies till the End of the Parliament To give Subsidies upon Subsidies is not usual In the 18 H. 3. Rush vol. 1. p. 190. There was one Punished for pressing for more Subsidies when Subsidies had been Granted before in that Parliament And note See Cottons Records p. 17. 198. If any new Project was proposed in Parliament for raising Subsidies or Supplies the Commons usually reply'd thereto That they were not Instructed by their Principals in that Matter or that they durst not consent to such Tax c. without Conference with their Countries A Member of Parliament may charge any great Officer of State with any particular Offence Rush Col. 690. If any Lord of Parliament Spiritual or Temporal 4 Inst 24. have committed any Oppression Bribery Extortion or the like the House of Commons being the general Inquisitors of the Realm coming out of all Parts thereof may examine the same and if they find by the Vote of the House the Charge to be true then they transmit the same to the Lords with the Witnesses and the Proofs 1 Jac. 1. 1603. Petyt's Miscel Parl. 64. The Bishop of Bristol publishing a Book tending to make Division and Strife Wrong and Dishonour both to the lower House and the Lords themselves was complain'd of by the Commons to the Lords and he made his Recantation 1. That he had erred 2. That he was sorry for it 3. If it were to do again he would not do it 4. But protested it was done of Ignorance and not of Malice 7 Jac. 1. 1609. Vide Rvsh Hist Col. 4 Car. Dr. Cowel writ a Book perniciously asserting certain Heads to the Destruction of Parliaments and the Fundamental Laws and Government of the Kingdom and was complained of by the Commons to the Lords who resolved to Censure his Errors and Boldness Ibid. And afterwards the Book was burnt by Proclamation Vide Dr. Manwaring's Case Rush Col. Nalson Vide Petyt's Miscel Part 74. Vide Dr. Montague's Case in Rushworth Nalson Petyt's Miscell Part 82. Note The Case of Dr. Burnet Bishop of Salisbury who for writing and publishing a Book Entitled King William and Queen Mary Conquerors was Censured in Parliament and as I think on the Commons Address Removed from being Preceptor to the Duke of Gloucester c. Note also Bishop Fleetwood's Preface censured and burnt by Order of the House of Commons And see Nalson's Col. p. 9. and 43. ten Bishops at once sent to the Tower by the Lords c. 4 Junij 19 Jac. Petyt's Miscel Parl. 120. The Commons House of Parliament this Day adjudged Randolph Davenport Esq for his Offence in Mis-informing the House in a Cause wherein he was produced as a Witness to be committed Prisoner to the Tower for the space of one whole Month and then to be Discharged paying his Fees 19 Jac. 1. Id. 160. Ordered by the Commons House of Parliament That the Serjeant of Arms attending this House shall attach the Body of John Churchill one of the Deputy-Registers of the Chancery and him shall take into his Custody and bring him to this House on Monday Morning next at Eight of the Clock and the said Serjeant is in the mean time to keep him so as none be suffer'd to speak with him but in the hearing of the Serjeant Vide ad hoc Rush Collect. passim Vide Nalson's 2 Volumes Vide Selden's Judicature c. Vide Sir Robert Atkyns's Argument c. Vide Petyt's Preface to Mis Parliamentaria Thomas Long gave the Mayor of Westbury four Pounds to be elected Burgess 4 Inst 23. Vide Sir d'Ewes Jour 182. who thereupon was elected This Matter was examin'd and adjudged in the House of Commons secundum Legem Consuetudinem Parliamenti and the Mayor fined and imprisoned and Mr. Long removed i. e. expelled the House for this corrupt Dealing was to poison the very Fountain it self See several Orders and Resolutions of the House of Commons against Bribery and Corruption in electing Members c. in Bohun's Collection of Debates c. pa. 28. 55. 275. 281. 340. c. particularly the Journal of the Commons for 1701. viz. Mar. 6.7.13.17.18.20.30 April 29. c. Arthur Hall Ibid. Vid. Sir Simon d'Ewes Jour 212. Post 89 c. a Member of the House of Commons for publishing and discovering the Conferences of the House and writing a Book to the Dishonour of the House was upon due Examination secundum Legem Consuetudinem Parliamenti adjudged by the House of Commons to be committed to the Tower for six Months Post 87. fined at five hundred Marks and expelled the House 23 Apr. 1. Mariae Ibid. Call'd Marington by Scobel 113. Muncton struck William Johnson a Burgess of B. return'd into the Chancery of Record for which upon due Examination in the House of Commons it was resolved That secundum Legem Consuetudinem Parliamenti every Man must take Notice of all the Members of the House returned of Record at his Peril And the House adjudged Muncton to the Tower Injuries offer'd to the Members Scobel 113. and their Servants during the Session have been usually punished by the House upon Complaint 29 Febr. 1575 one Williams Ibid. Vid. Sir Simon d'Ewes Jour 251. Col. 2. for assaulting a Burgess of this House was upon Complaint sent for by the Serjeant and brought to the Bar and committed to the Serjeant's Ward 28 Nov. Ibid. 1601 complaint being made by Mr. Fleetwood a Member of the House that one Holland a Scrivener and one Brooks his Servant had evil entreated and beaten the Servant of the said Mr. Fleetwood in his Presence they were both sent for by the Serjeant and brought to the Bar and for the said Offence committed for five Days to the Serjeant 12 Febr. 18. Jac. 1 Mr. Lovel Ib. 114. a Member of the House informed That one Darryel threatned his Person that for