their Serjeant without Writ It is the Law and Custom of Parliament 4 Inst 14 34. Rot. Parl. â—3 E. 3. n. Cot. Records f. 17. n. 6 9. That when any new Device is moved on the King's behalf in Parliament for his Aid or the like the Commons may answer That they tender the King's Estate and are ready to aid the same only in this Device they dare not agree without Conference with their Countries Whereby it appeareth That such Conference is warrantable by the Law and Custom of Parliament Mar. 19. Journal Dom. Com. 1677. It was conceived by the Commons that according to the antient Course and Method of Transactions between the two Houses when a Bill with Amendments is sent from either House to the other by Messengers of their own the House that sends them gives no Reasons of their Amendments but the House to whom it is sent if they find Cause to disagree do use to give Reasons for their Dissent to every particular Amendment every one of them is supposed to carry the Weight of its own Reason with it until it be objected against May 28. Ibid. 1678. A Paper of Reasons against a Bill viz. for wearing Woollen being printed and delivered at the Door was committed it being irregular for Reasons to be printed and published against a publick Bill before a Petition be exhibited to the House against the Bill It is to be observed 4 Inst 14. though one be chosen for one particular County or Borough yet when he is return'd and sits in Parliamment he serveth for the whole Realm for the End of his coming thither as in the Writ of his Election appeareth is general ad faciendum consentiendum c. If Offences done in Parliament might have been punished elsewhere 4 Inst 17. it shall be intended that at some Time it would have been put in Ure As Usage is a good Interpreter of Laws Coke Lit. 81. b. so Non-usage where there is no Example is a great Intendment that the Law will not bear it Not that an Act of Parliament by Non-user can be antiquated or lose his Force Coke Lit. 81. b. but that it may be expounded or declared how the Act is to be understood There is no Act of Parliament but must have the Consent of the Lords 4 Inst 25. the Commons and the Royal Assent of the King and whatsoever passeth in Parliament by this threefold Consent hath the Force of of an Act of Parliament The Difference between an Act of Parliament Ibid. and an Ordinance in Parliament is for that the Ordinance wanteth the threefold Consent and is ordained by one or two of them Some Acts of Parliament are introductory of a new Law Ibid. and some be declaratory of the ancient Law and some be of both kinds by addition of greater Penalties or the like Ibid. Some Acts are general and some private or particular All Acts of Parliament relate to the first Day of Parliament 33 H. 6. f. 18. a. 33 H. 8. Brook Parl 86 Relation 35. 4. Inst 28. Vide Sir Simon d'Ewe 's Jour 550. Col. 1 2. if it be not otherwise provided by the Act. The House of Commons is to many Purposes a distinct Court and therefore is not prorogued or adjourned by the Prorogation or Adjournment of the Lords House but the Speaker upon the Signification of the King's Pleasure by the Assent of the House of Commons doth say This Court doth Prorogue or Adjourn itself And then it is prorogued or adjourn and not before 39 Eliz. 1597. Towns Col. 101.102 Vide Sir Simon d'Ewe 's Jour 550. Col. 1 2. Nov. 5. Through a meer Mistake and Error of the Speaker and themselves the House conceived themselves to have been Adjourned by the Lord Keeper the first Day of this Parliament to this present Day When it is dissolved Ibid. the House of Commons are sent for up to the Higher House and there the Lord Keeper by the King's Commandment dissolveth the Parliament and not before A Parliament cannot be discontinued or dissolved but by Matter of Record Hutton 62. and that by the King alone The King at the Time of the Dissolution ought to be there in Person 4 Inst 28. or by Representation for as it cannot begin without the Presence of the King either in Person or by Representation so it cannot end or be dissolved without his Presence either in Person or by Representation Nihil enim tam Conveniens est naturali aequitati Bracton unumquodque dissolvi eo ligamine quo ligatum est By the Statute of 33 H. 8. c. 21. Ibid. it is declared by Act of Parliament That the King's Letters Patents under his Great Seal and signed with his Hand and declared and notified in his Absence to the Lords Spiritual and Temporal and Commons assembled in the House of Parliament is and ever was as good Strength and Force as if the King's Person had been there personally present and had assented openly and publickly to the same In the Lords House the Lords give their Voices from the puisne Lord seriatim 4 Inst 34.35 by the Word of Content or Not Content The Commons give their Voices upon the Question by Yea or No. Every Lord Spiritual and Temporal 4 Inst 43. Crompton 4. b. and every Knight Citizen and Burgess shall upon Summons come to the Parliament except he can reasonably and honestly excuse himself or else he shall be amerced c. that is respectively a Lord by the Lords and one of the Commons by the Commons By the Statute of 6 Hen. 8. c. 16. no Knight Ibid. Crompton 4. b. Citizen or Burgess of the House of Commons shall depart from the Parliament without Licence of the Speaker and Commons the same to be entered of Record in the Book of the Parliament upon Pain to lose their Wages Sickness is no Cause to remove any Knight 4 Inst 8. Citizen or Burgess of the House of Commons 18 Eliz. 1575. Sir Simon d'Ewe 's Jour 244. Col. 2. Resolved by the House That any Person being a Member of the same and being either in Service of Ambassage or else in Execution or visited with Sickness shall not in any Ways be amoved from their Place in this House nor any other to be during such Time of Service Execution or Sickness elected 31 Eliz. 1588. Id. 439. It was assented to by the whole House That none after the House is set do depart before the rising of the same House unless he do first ask Leave of Mr. Speaker on pain of paying Six Pence to the Vse of the Poor If a Lord depart from Parliament without Licence 4 Inst 44. it is an Offence done out of the Parliament and is finable by the Lords And so it is of a Member of the House of Commons he may be fined by the House of Commons It doth not belong to the Judges to judge of any Law Custom 4 Inst 50. Rot. Parl. 31 H. 6. n. 27. or Priviledge of Parliament Cardinal Wolsey
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
Bill is engrossed the Clerk ought to endorse the Title thereof upon the back of the Bill and not within the Bill in any Case Ibid. So ought likewise such Bills as come from the Lords to have Titles endorsed upon the back of the Bill and not within After a Bill hath been committed Id. 151. and is reported it ought not in an ordinary Course to be committed but either to be dash'd or ingrossed and yet when the Matter is of Importance it is sometimes for special Reasons suffer'd but then usually the Re-commitment is to the same Committee About two or three Days after the Bill is thus order'd to be engrossed Id. 152. and is accordingly engrossed it is offer'd by the Speaker to be read a third Time for the Passage thereof For the most part the Speaker putteth not any one Bill to the Passage by itself alone Id. 153. but stayeth till there be divers Bills ready engross'd for the third Reading and when he hath a convenient Number which may be five or six rather less than more then he giveth Notice to the House That he purposeth next Day to offer up some Bills for the Passage and desireth the House to give special Attendance for that purpose and then the Day following he doth accordingly put them to the third Reading First private Bills until the House be grown to some fulness and then he offereth to be read the publick Bills which are engrossed It hath at some times been order'd Ibid. That for the preventing of carrying of Bills with a few Voices that no Bills shou'd be put to the Passage until Nine of the Clock at which time the House is commonly full or shortly after When the Bill is read the third Time Id. 153 the Clerk delivereth it to the Speaker who reads the Title thereof and openeth the Effect of the Bill and telleth them That the Bill hath now been thrice read and that with their Favours he will put it to the Question for the passing but pawseth a while that Men may have Liberty to speak thereto for upon the third Reading the Matter is debated afresh and for the most part it is more spoken unto this Time than upon any of the former Readings When the Argument is ended Id. 154. the Speaker still holding the Bill in his Hand maketh a Question for the Passage in this sort As many as are of Opinion that this Bill shou'd pass say Yea c. If the Voice be for the Passage of the Bill Ibid. the Clerk ought to make a Remembrance thereof in his Journal if otherwise then his Remembrance must be accordingly made Breck Abr. f. Edit 119 n. 4. Upon the Bill thus passed if it be originally exhibited in the House of Commons the Clerk ought to write within the Bill on the top toward the right Hand Soit baille aux Seigneurs Let it be deliver'd to the Lords If the Bill passed be originally begun in the Lords House Brook 119.4 then ought the Clerk to write underneath the Subscription of the Lords which always is at the foot of the Bill A cest Bill les Commons sont assentus i. e. To this Bill the Commons have assented 19 Dec. 1584. Sir Simon d'Ewes Jour 344. Col. 2. 27 Eliz. The House of Commons taking Exceptions about endorsing of Bills in the upper part of them whereas it ought to be done at the neither and lower part the Lords did very respectfully take away their said Grievance by the alteration of the Indorsinents aforesaid according to the usual and ancient Form No Bill upon the third Reading Hak. 156. for the Matter or Body thereof may be recommitted but for some particular Clause or Proviso it hath been sometimes suffered but it is to be observ'd as a Thing unusual after the third Reading It hath been much doubted Hakewel 157. whether when a Bill is in Debate for the Passage it ought not to receive the Resolution of the House the same Day wherein it is first offer'd to the Passage but Precedents are where the Case being of some Importance and the Debate growing long the Argument hath been put over to the next Day In which Case he that hath already spoken to the Bill the first Day may not again speak the Second no more than he may speak twice in one Day where the Argument is not deferred to another Day If a Bill be rejected Id. 158. the same Bill may not be offer'd to the House again the same Session but if it be alter'd in any Point material both in the Body and in the Title it may be receiv'd the second Time In the Time of the Reading of a Bill Ibid. the House should not be interrupted with any other Business and yet in 1. Eliz. the House adjourn'd itself till the next Day after the Bill for Sealing Clothes was half read only to be present at the Conference about Religion in Westminster-Abby Sometimes the House conceiving much Offence against some Bills Ibid. doth not only order them to be rejected but to be torn c. in the House When a Bill is thrice read Id. 159. and pass'd in the House there ought to be no further Alteration thereof in any Point When the Speaker hath in his Hands a convenient Number of Bills ready passed Id. 175. as five or six or therabouts he then putteth the House in Mind of sending them up to the Lords and desireth the House to appoint Messengers who accordingly do appoint some one principal Member of the House for that Purpose to whom the Bills are delivered in such Order as he ought to present them to the Lords which is done by Direction of the Speaker except the House be pleased to give special Direction therein The Order which hath usually been observed in ranking them is First Id. 176. To place those that came originally from the Lords Secondly Those that being sent up to the Lords from the Commons House were sent back to be amended Thirdly Publick Bills originally coming from the Commons House and these to be marshalled according to their Degrees in Consequence Lastly Are to be placed private Bills in such Order as the Speaker pleaseth Many Times the House with a Purpose especially to grace some one Bill sendeth it alone Ibid. with a special Recommendation thereof The Messenger for this Purpose is usually attended by thirty or forty of the House as they please and are affected to the Business The principal Messenger Id. 177. who delivers the Bills to the Lords coming in the first Rank of his Company to the Bar of the Lords House with three Congies telleth the Lords That the Knights Citizens and Burgesses of the Commons House have sent unto their Lordships certain Bills and then reading the Title of every Bill as it lieth in Order he so delivereth the same in an humble Manner to the Lord Chancellor who of Purpose cometh to receive them Bills sent from the Lords to the Commons House Ibid. if they be ordinary
Bills are sent down by Serjants at Law or by two Doctors of the Civil Law being Masters of the Chancery and Attendants in the Vpper House accompanied sometimes with the Clerk of the Crown an Attendant there Bills of greater Moment are usually sent down by some of the Judges Assistants there Id. 178. accompanied with some of the Masters of the Chancery who being admitted Entrance do come up close to the Table where the Clerk sits making three Congies and there acquainting the Speaker That the Lords have sent unto the House certain Bills doth read the Titles and deliver the Bills to the Speaker and so departeth with three Congies When they are out of the House the Speaker holds the Bills in his Hands and acquaints the House That the Lords by their Messengers have sent to the House certain Bills and then reading the Title of every Bill delivereth them to the Clerk to be safely kept and to be read when they shall be called for When Bills are thus passed by both Houses Id. 179. upon three several Readings in either House they ought for their last Approbation to have the Royal Assent which is usually deferred till the last Day of the Session The Royal Assent is given in this sort Id. 181. Vid. Towns Coll. 12 49. Vide Sir S. d'Ewe's Jour 467. After some Solemnities ended the Clerk of the Crown readeth the Title of the Bills in such Order as they are in Consequence After the Title of every Bill is read the Clerk of the Parliament pronounceth the Royal Assent according to certain Instructions given him from his Majesty in that Behalf To the Subsidy Bill Towns Coll. 49. because it is the meer Gift of the Subject the Queen's Consent is not required for the passing of it but as it is implied in her thankful Acceptance Nor to the Bill of Pardon because it is originally her free Gift no other Circumstance is required than that the thankful Acceptance thereof by the Lords and Commons be likewise expressed it being but once read in either House before it comes at last to be thus expedited To all other Bills either Private or Publick the Queen's express Consent though in different Words is always requisite February 9. Id. 127. 1597. 39. Eliz. Her Majesty gave her Royal Assent to twenty four publick Acts and nineteen private and refused forty eight which had passed both Houses If it be a publick Bill Towns 13. to which the King assenteth the Answer is Le Roy le veult in English The King wills it If a private Bill allowed by the King the Answer is Soit fait come il est desire i. e. Be it done as is desired If a publick Bill which the King forbears to allow Le Roy se avisera i. e. The King will consider To the Subsidy Bill Id. 12. Le Roy remercie ses loyaux Subjets accept lour Benevolence ainsi le veult i. e. The King thanks his loyal Subjects accepts their Benevolence and so wills it To the General Pardon Towns Col. 13.49 Sir Simon d'Ewe's Jour 467. Gol. 2. The Assent is thus Les Prelates Seigneurs Commons encest Parliament assembles an nom de toutes vous autres Subjets remercient tres humblement vostre Majestie prient à Dieu que il vous donne en sante bon vie longue The Prelates Lords and Commons in this Parliament assembled in the Name of all other your Subjects do most humbly thank your Majesty and do pray God to give you Health and a good and long Life A private or particular Act is always field Sir R. Atkin's Argument 57. Arc. Parl. 45. but never enrolled Every Bill that passeth the Parliament shall have Relation to the first Day of the Parliament though it come in at the End of the Parliament unless a Time be specially appointed by the Statute when it shall commence If a Bill be admitted to be read Scobel 41. it is to be presented fairly written without any Razure or Interlineation together with a Breviat of the Heads of the Bill and unless it be so tendered the Speaker may refuse it Until the Bill be open'd Id. 42. no Man may speak to it An Act was read Towns c. 187. to which no Man offered to speak Whereupon Mr. Speaker stood up and said That if no Man speak it must be ingrossed i. e. Silence gives Consent It is the usual Rule of the Law Towns Col. 134. That where the Numbers of the Affirmative and Negative are equal Semper presumetur pro negante The Negatives by Custom are to carry it i. e. That the former Law is not to be changed When Votes are digested into a Bill Scobel 45. and that comes to be read or passed it is lawful to debate or argue against all or any Part thereof to alter or reject it Because Votes in order to a Bill are no further binding but that the Bill is to be presented containing those Votes and because the Bill gives Occasion of a more large Debate before it can pass into a Law every Member hath Liberty to offer his Reasons against it as well as give his Vote as often as it comes to a Question Ibid. When a Bill has been read the second Time and opened any Member may move to have it amended but must speak but once to it and therefore must take all his Exceptions to it and every Part of it at one Time for in the Debate of a Bill no Man may speak but once the same Day except the Bill be read any more than once that Day and then he may speak as often as it is read Id. 58. 23 Junii 1604. It was agreed for a Rule If a Bill be continue in Speech from Day to Day one may not speak twice to the Matter of the same Bill Note His. Refor Vol. I. p. 144. A Bill was read in the House of Lords four Times Quere if in one Day CHAP. XVIII Concerning Committees A Committee of either House ought not by Law to publish their own Refults Rush Part. 3. Vol. 2. p. 74. neither are their Conclusions of any Force without the Confirmation of the House which hath the same Power of controuling them as if the Matter had never been debated Committees are such as either the Lords in the Higher House Sir Tho. Smyth 's Common-Wealth 75. or Commons in the Lower House do choose to frame the Laws upon such Bills as are agreed upon and afterward to be ratified by the same Houses The Proceeding in a Committee is more honourable and advantageous to the King and the House Rush Col. 557. for that Way leads most to the Truth And it is a more free and open Way where every Man may add his Reason and make Answer upon the hearing of other Mens Reasons and Arguments For Referring a Bill to Committees Sir Simon d'Ewe 's Jour 186. it is chiefly for Amendment or Alteration thereof after it hath been penned and put into the House by some one or