in Parliament are the King or Queen Sir Tho. Smith's Common-wealth 74. the Lords Temporal and Spiritual the Commons represented by the Knights and Burgesses of every Shire and Borough-Town These all or the greater Part of them and that with the Consent of the Prince for the time being must agree to the making of Laws The King of England Fortescue c. 36. p. 84. b. neither by himself or his Ministers imposeth Tallages or any other Burdens on his Subjects or alter their Laws or make new Laws without Assent of the whole Kingdom in Parliament No Parliament no Penny Turner's Case of Bankers 95. hath been always taken notice of as a principal Foundation of this Government even by our Neighbour Princes and States who have in all Ages made their Approaches upon this Realm and evermore valued us in Proportion to the Correspondency they observed between our Kings and their Parliaments For seeing the Power of every Prince is computed from his Treasure and Martial Men and those again by the Love of his People they well enough knew that as long as a good Understanding was maintain'd there our Princes could never want the Sinews either of the Purse or of valiant mens Arms. L'Assemblie de Troys Estates Finch's 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lib. 2. c. 1. so 21. b. Cestascavoir 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 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 and 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 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 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 Discent 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 Id. 2. and these three Estates are the great Corporation or Body Politic of the Kingdom and do sit in two Houses the 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 Collect 5 6. Vid. Crompton 1. b. Barons of the Exchequer of the Coif the King 's Learned Councel 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 English-man is intended to be there present either in Person Arc. Parl. 3. Smyth's Common-wealth 74. or Procuration and Attorny of what Pre-eminence 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 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 public 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't of no great weight In 50 Ed. 3. all the Lords appeared in Person and not one by Proxy and so many excellent Things were done that it was called Bonum Parliamentum At the Return of the Writs the Parliament cannot begin Id. 6. but by the Royal Presence of the King either in Person or Representation The King's Person may be represented by Commission under the Great Seal to certain Lords in Parliament Id. 7. authorizing them to begin the Parliament or to prorogue it c. When a Parliament is call'd Id. 28. and doth sit and is dissolved without any Act of Parliament passed or Judgment given it is no Session of Parliament but a Convention It is an Observation proved by a great Number of Precedents Id. 32. that never any good Bill was preferred or good Motion made in Parliament whereof any Memorial was made in the Journal-Book or otherwise Tho' sometimes it succeeded not at the first yet it hath never dy'd but at one Time or other hath taken effect Matters of Parliament are not to be ruled by the Common-Law Id. 17. If Offences done in Parliament might have been punish'd elsewhere Ibid. Vid. 1 Inst §. 108. it shall be intended that at some Time it would have been put in Ure It doth not belong to the Judges to judge of any Law Custom Id. 50. or Priviledge of Parliament It is the just and constant Course of Parliament to bring the Party accused to his Answer yea Seld. Judic 95. tho' he fly Justice yet to send out Proclamation into the Countries that he appear at a Day or else such and such Judgments shall be given against him What is done by either House according to the Law and Usage of Parliament Sir R. Atkyns Argument c. 14. is properly and in the Judgment of the
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 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 4 Inst 4 5. 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 c. It is declared by the Lords and Commons in full Parliament Id. 14. 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 Hakewel 94. doth ordinarily belong to the Reverend Judges and in Case of greatest Difficulty or Importance 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 Actions at Common Law are not determined in this High Court of Parliament Selden 's Judicature 2. yet Complaints have ever been received 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 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 Rich. 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. Anno 21 R. 2. The Commons Acensed the Arch-Bishop of Canterbury of Treason and the Temporal Lords judged him a Traytor and Banished him But if the 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 save that only of their Trial. 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 against his Body and the like And by this it appeareth what Persons are de Jure triable by the Lords in Parliament viz. their Peers only Judgments in Parliaments for Death have been strictly guided per Legem Terrae Id. 168. The Parliament hath three Powers Sir Rob. Atkyns Argument c. 36. a Legislative in Respect of which they are call'd the three Estates of the Realm a Judicial in respect of this it is call'd Magna Curia or the High Court of Parliament a Counselling Power hence it is call'd Commune Concilium Regni The Parliament gives Law to the Court of the King's Bench Id. 49. and to all other Courts of the Kingdom and therefore it is absurd and preposterous that it shou'd receive Law from it and be subject to it The greater is not judged of the less All the Courts of Common Law judge only by the ordinary Rules of the Common Law Id. 50. but the Proceedings of Parliament are by quite another Rule The Matters in Parliament are to be discussed and determined by the Custom and Usage of Parliament and the Course of Parliament and neither by the Civil nor the Common Law used in other Courts The Judges of all the Courts of Common Law in Westminster are but Assistants Ibid. and Attendants to the High Court of Parliament And shall the Assistants judge of their Superiors The High Court of Parliament is the dernier Resort Ibid. and this is generally affirm'd and held but it is not the last if what they do may yet again be examin'd and controlled Because the High Court of Parliament proceeds by a Law peculiar to that High Court Id. 52. which is call'd Lex Consuetudo Parliamenti and not by the Rules of the Common Law and consists in the Customs Usages and Course of Parliament no Inferior Court can for this very Reason judge or determine of what is done in Parliament or by the Parliament A Statute Arc. Parl. 85. or Act of Parliament shall not be proclaimed for the Parliament represents the Body of the whole Realm for there are Knights and Burgesses of every County and Town But otherwise where it is ordained by the Act that it shall be proclaimed A man Attainted of Felony Id. 100. or Treason shall not be restored in Blood without Parliament 28 Ed. 1. Petyt's Appendix to Miscel Parliament n. 38. A Truce being concluded between the English and French by King Edward's Ambassadors who therein had dishonorably agreed to include the Scots the Ambassadors at the ensuing Parliament were sharply rebuked and corrected not only by the King himself the Prelates and Nobles but by the Commons The Court of Parliament was the Sanctuary Turner's Case of Bankers 36. whether the distressed Subject in his Exigence fled for Shelter and Refuge and alway found it Into the Sacred Bosom of Parliaments it was Ibid. Vide Several Precedents and Records that they powred out their Sighs and Groans with constant Success and when in Cases of high Nature the Common Law was arrested and stopt in her Proceedings Parliaments evermore ran into their Rescue and in dutiful ways discharged those Locks and Bars which had been unjustly sastned on the Exchequer The Right of the Crown of England Stat. Provis 25 Ed. 3. Rast Stat. 99. and the Law of the said Realm is such that upon the Mischiefs and Damages which happen to the Realm the King ought and is bound by his Oath of the Accord of his People in Parliament thereof to make Remedy c. To conclude this Chapter Le Parliament ad Absolute poiar en touts Cases come a faire Leys d'adjuger Matiers en Ley à trier vie del home à reverser Errors en Bank le Roy especialment lou est ascun Commune Mischief que l'ordinary Course del Ley n'ad ascun means à remedier en tiel Case ceo est le proper Court Et touts choses que ils font
Commencement could have been shewn During the British Saxon and Norman Governments the Freemen or Commons of England as now call'd and distinguish'd from the great Lords were pars essentialis constituens and essential and constituent Part of the Wittena Gemot Commune Concilium Baronagium Angliae or Parliament in those Ages It is apparent and past all Contradiction Id. 12. That the Commons in the Times of the Britons Saxons and Picts were an essential Part of the Legislative Power in making and ordaining Laws by which themselves and their Posterity were to be govern'd and that the Law was then the golden Metwand and Rule which measured out and allowed the Prerogative of the Prince and Liberty of the Subject and when obstructed or deny'd 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 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 The Book of the Clerk of the House of Commons is a Record 4 Inst 23. as it is affirmed by Act of Parliament 6 Hen. 8. c. 16. 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 and the Knights Citizens Cromptona b. 4 Inst 1. Burgesses and Barons of the Cinque-Ports who represent the Body of the whole Commonalty of England All Persons and Commonalties St. 5 Rich. 2. c. 4. Rast 140. which shall be summon'd to Parliament shall come as has been used and accustom'd of ancient Time and he that shall not come having no reasonable Excuse shall be amerced and otherwise punish'd as of ancient Time has been used CHAP. VI. Power of the House of Commons THE House of Commons is a House of Information and Presentment Rush Coll. 217. Vol. 1. but not a House of Definitive Judgment 1 Car. 1. Rushw ib. 1625. Resolved 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 Judicature 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 and not to be deny'd Petyt's Miscell Pref. c. p. 5. 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 magnâ 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 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 Rush Coll. 690. A Member of Parliament may charge any great Officer of State with any particular Offence 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. Petyt's Miscel Parl 64 1603. 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 Rush Hist Coll. 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 Coll. Nalson Vide Petyt's Miscell Part. 74. Vide Dr. Montague's Case in Rushworth Nalson Petyt's Miscell Part. 82. 4 Junij 19 Jac. 1. Petyt's Miscell 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 at 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 Miscell 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 secundùm Legem Consuetudinem Parliamenti and the Mayor fined and imprisoned and long removed for this corrupt Dealing was to poison the very Fountain it self Arthur Hall a Member of the House of Commons Ibid.
not only by the Princes Pleasure Fortescue 40. a. 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 five hundred and odd Men that ought to be freely Elected by the People CHAP. II. Power of Parliament 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 Commonwealth the Bishops for the Clergy be present to advertise consult and shew what is good and necessary for the Commonwealth 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 and after the Prince himself in presence of both the Parties doth consent unto and alloweth that is Ibid. p. 73. 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 That which is done by this Consent is called firm stable and sanctum and is taken for Law The Parliament abrogateth old Laws 2. Maketh new Sir Tho. Smith ibid. Arc. Parl. 2. Vide Crompt Jur. 3. 3. Giveth order for things past and for things hereafter to be followed 4. Changeth Right and Possessions of private Men. 5. Legittimateth Bastards 6. Establisheth Forms of Religion 7. Altereth Weights and Measures 8. Giveth Form of Succession to the Crown 9. Defineth of doubtful Rights whereof is no Law already made 10. Appointeth Subsidies Tallies Taxes and Impositions 11. Giveth most free Pardons and Absolutions 12. Restoreth in Blood and Name 13. As the highest Court condemneth or absolveth them who are put upon their Trial. And to be short 14. 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 English-man 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 for the Power of Parliaments 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 it self which are as followeth 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 only 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 Vse 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 ancient 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 the King and the Lords Spiritual and Temporal and 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 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 seen 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 vetutissima 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 Leon. 174 176. The Parliament is of an absolute and unlimited Power in things Temporal within this Nation Sir Rob. Atkyns's Argument c. 50. The Parliament hath the highest and most sacred Authority of any Court Ibid. 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 Crompton 20. b. and to his Heirs Males in that Case his Heirs Females also inherit and this was adjudged in Parliament One of the fundamental and principal Ends of Parliaments was Petyt'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 c. 1. p. 9. 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 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 and sordidly submitted to take the Crown at his Hand again at a yearly Tribute In the Reign of our Noble King Edward the Third the Pope demanded his Rent and all the Arrears 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 Ibid. 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 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 4 Inst 36. and Heirs apparent of a Man or Woman may by Act of Parliament inherit during the Life of the Ancestor It may adjudge an Infant or Minor to be of full Age. Ibid. It may Attaint a Man of Treason Ibid. after his Death 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 secundùm quid and not simplicitèr 21 Rich. 2. The Lords Appellants accused the Duke of Glocester 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. 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 these three Sons and Joan the Daughter Thomas Cromwel Earl of Essex was attainted by Parliament Ibid. 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't 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 specially 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 The Stat. Id. 42. 11 Rich. 2. c. 5. That no Person should attempt to revoke any Ordinance then made repealed for that such Restraint is unreasonable 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 Custom of Parliament and therefore void 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 Id. 43. what transcendent Power and Authority this Parliament hath and tho' divers Parliaments have attempted to bar restrain suspend qualifie or make void subsequent Parliaments yet could they never effect it for the latter Parliament hath ever Power to abrogate suspend qualifie 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 Quòd Leges posteriores priores contrarias abrogant An Act of Parliament doth include every man's Consent Hobart 256. as well to come as present The Soveraign 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 Parliament The King by his Letters Patents may make a Denizen Id. 87. but cannot Naturalize him to all purposes as an Act of Parliament may do If a man be Attainted of Felony Id 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 the King may give to any attainted Person his Life by this Charter of Parliament Id 90. The King cannot alter the Common Law or the general Customs of the Realm as Gavelkind Borough-English or the like without Parliament If a King have a Kingdom by Discent Ibid 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 Proclamation 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 Brook 123.98 Vide 20 H. 6.9 Crompton 22. b. Le Parliament d Engleterre ne lia Ireland quoad Terras suas 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 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 Sometimes the King of England call'd his Nobles of Ireland to come to his Parliament of England 4 Inst 350. 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
Lex Parliamentaria OR A TREATISE OF THE LAW and CUSTOM OF THE PARLIAMENTS OF England By G. P. Esq 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. 1. From an Original French Manuscript Translated into English 〈…〉 〈…〉 TO THE Most Supreme Court OF THE KINGDOM THE PARLIAMENT OF England The AUTHOR doth most humbly Dedicate this his small Treatise of the LAW and CUSTOM of PARLIAMENT THE PREFACE TO THE READER I Am very sensible that assoon as this Treatise is submitted to publick View 't will likewise meet with publick Censure and not a Few will be apt to start this Objection against it that it is only like an Old Piece in a New Dress These Things men will say have been done before the same Matter and much of the same Form are to be found in other Writers and this is but to obtrude upon the World 〈◊〉 vain Repetition of other mens Observations I must confess in part it is so and it must needs be so fo◠it is not to be expected that I shou'd presume to dictate Rules and Directions out of my own Fancy by which to govern or Influence Parliaments I must be beholding to Precedents and Records and tho' you shall find many of the same Notes scattered in my Lord Coke in Elsyng Hakewel Scobel and others yet I may adventure to say you shall no where meet them couched in so compendious and so useful a Method I have not only cull'd out of the before-mention'd and several other Authors what is proper and pertinent to this Design but I have gleaned from the Statutes Law-Books Reports and Histories whatsoever I met with in my inquisitive Re-searches beyond All that has been before placed in any Collection and which may be applicable to this Vndertaking All Members ought to be throughly skill'd in Parliamentary Affairs to know their own Laws and Customs their Powers and Priviledges that they may not at any time suffer Invasions to be made upon them by what plausible Pretences soever but as it is impossible for men of the most tenacious Faculties to keep all things constantly in their minds therefore this is to ease and refresh their Memories in case of any Forgetfulness and they may with a very little Trouble have always this in their Pockets which perhaps some may not be able without a great deal of Trouble to carry always in their Heads When he that is conversant in Study and Books cannot carry a Library about him he may easily recollect what is expedient for him from the Supplement of this Epitome Such as shall hereafter be promoted to that honourable Station of being Senators of the Kingdom will find it much more easie to receive short Information from this little Manual than to be obliged on every Occasion to consult the publick Records and turn over wearisome Volumes And they who do not expect Admission into a Parliament House will yet receive this as no unprofitable Diversion to observe and know the admirable method of Parliamentary Proceedings the Exactness and Decency of their Orders the Wisdom and Prudence of their Customs the Extent of their Powers and the Largeness of their Priviledges Wherefore without any Flattering or Arrogance to my self I shall make bold to tell you I am verily perswaded that what I have taken pains to collect from several Books and to digest into this small Compass for my own Convenience and Information will conduce to the general Satisfaction of all that read it which was one main Reason that induced me to publish it THE HEADS Of the several CHAPTERS Contained in this TREATISE CHAP. 1. THE Parliament Page 1 CHAP. 2. Power of Parliament Page 18 CHAP. 3. The House of Lords Page 41 CHAP. 4. Power of the House of Lords Page 53 CHAP. 5. House of Commons Page 61 CHAP. 6. Power of the House of Commons Page 66 CHAP. 7. Power of Parliament over their own Members Page 87 CHAP. 8. Elections of Members Page 104 CHAP. 9. Who may be Electors Page 113 CHAP. 10. Who may be Elected Page 115 CHAP. 11. Returns of Sheriffs and Amendments of Returns Page 125 CHAP. 12. Election of Speaker Page 130 CHAP. 13. Business of the Speaker Page 141 CHAP. 14. Orders to be observed in the House Page 148 CHAP. 15. Orders of the House Page 156 CHAP. 16. Passing of Bills Page 174. CHAP. 17. Concerning Committees Page 202 CHAP. 18. The Order and Power of Grand Committees Page 215 CHAP. 19. Concerning standing Committees Page 222 CHAP. 20. A Session of Parliament Page 229 CHAP. 21. The proper Laws and Customs of Parliament Page 235 CHAP. 22. Priviledge of Parliament Page 257 The Appendix Page 299 The NAMES of the AUTHORS quoted in this TREATISE ATkyns Sir Robert 's Argument of the Power and Jurisdiction of Parliament Arcana Parliamentaria Brook Brownlow Coke on Littleton Coke 's fourth Institute Coke 's Twelfth Report Crompton 's Jurisdiction c. Dyer Elsyng d'Ewes Sir Simond 's Journal Fortescue Hakewel Herbert 's Henry the Eighth Hollis Lord. Holling shead Hunt Hutton Kelwey Knyghton de Eventibus Angliae Leonard 's Reports Modus tenendi Parliamentum Moor 's Reports Nalson 's Collections Petyt 's Ancient Rights c. Petyt 's Miscellanea Parliamentaria Plowden Rushworth 's Collections Scobel Selden 's Judicature Smyth Sir Thomas Common-wealth of England Speed 's History Townsend 's Collections Turner 's Bankers Case Vaughan 's Reports CHAP. I. The Parliament IT is called Parliamentum Co sup Littleton 110. because every Member of that Court shou'd parler le ment speak his mind Mr. Lambard in his Archion maintains Sir R. Atkyns Argument c. p. 18. That the Parliament was used in the Saxons time and then consisted of the King Lords and Commons as in the Time of King Ina Ann. 712. Mr. Prinn says Mr. Prynn's Truth triumphing over Falshood Antiquity over Novelty fol. 69. Pttyt's Ancient Right c. p. 68. by all the ancient Precedents before the Conquest it is most apparent That all our pristine Synods and Councils were nought else but Parliaments That our Kings Nobles Senators Aldermen Wisemen Knights and Commons were usually present and voting in them as Members and Judges They had many Expressions and Phrases as Id. 98 99. Omnes Regni Nobiles Totius Regni Magnates Proceres Fideles Regni Vniversitas Regni Clerus Populus Communitas Regni Discretio totius Regni Generale Concilium Regni and many more varying in several Ages till at last they fixed on the word Parliamentum Vide many Records and Precedents touching this Matter in the Appendix to Petyt's Miscellanea Parliamentaria This Court is the highest Court of England Crompton's Juris p. 1. in which the Prince himself sits in Person and comes there at the Beginning of the Parliament and at the End and at any other Time when he pleaseth during the Parliament The Judges
King's Bench for removing of the Record in praesens Parliamentum c. When one sueth in Parliament to Reverse a Judgment in the King's Bench Id. 22. he sheweth in his Bill which he exhibiteth to the Parliament some Error or Errors whereupon he prayeth a Scire Facias The Proceeding upon the Writ of Error is only before the Lords in the Vpper House Id. Secundùm Legem Consuetudinem Parliamenti The Case between Smith and Busby in a Writ of Error 2 Nalson 716. decidable in no other Court but in Parliament If any Question be moved in Parliament for Priviledge 4 Inst 363. or Precedency of any Lord of Parliament it is to be decided by the Lords of Parliament in the House of Lords as all Priviledges and other Matters concerning the Lords House of Parliament are November 1641. Resolved by the House Nemine contradicente 2 Nalson 625. That it belongs to the House of Peers by the ancient Laws and Constitutions of this Kingdom to interpret Acts of Parliament in Time of Parliament in any Cause that shall be brought before them Julij 12 2 Nalson 381. 1641. An Order of the Lords for Relief of a Feme-Covert and her Children against a Husband refusing to Cohabit The Sentence pronounced by the Lords upon Sir Giles Mompesson Rushw Col. 27 28. and Sir Fancis Michel for Projectors Upon Complaints and Accusations of the Commons Selden's Judicature c 6 7. the Lords may proceed in Judgment against the Delinquents of what Degree soever and what Nature soever the Offence be For where the Commons complain the Lords do not assume to themselves Trial at Common Law Neither do the Lords at the Trial of a Common Impeachment by the Commons decedere de June suo for the Commons are then instead of a Jury And the Parties Answer and Examination of Witnesses are to be in their Presence or they to have Copies thereof and the Judgment is not to be given but upon their Demand which is instead of a Verdict so the Lords do only judge not try the Delinquent 28 Hen. 6. Tho' the Lords refused to commit the Duke of Suffolk upon the Commons complaint of him of a common Fame of Treason Id. 98. yet when they accused him of particular Treason he was Committed and brought Prisoner to his Answer But in Cases of Misdemeanors it is otherwise then the Party Accused whether Lord or Commoner answers as a Freeman The Lord within his Place Ibid. the Commoner at the Bar and they are not committed till Judgment unless upon the Answer of a Commoner the Lords find Cause to commit him till he find Sureties to attend c. lest he should fly Prout Jo. Cavendish upon the Lord Chancellor's demand of Justice against him for his false Accusation was Committed after his Answer until he put in Bail Anno 7 Rich. 2. and before Judgment In Cases of Misdemeanors only Id. 105. the Party accused was never deny'd Counsel If the Commons do only complain Id. 163. and do neither impeach the Party in Writing nor by Word of Mouth in open House nor demand Trial to be in their Presence in these Cases it is in the Election of the Lords whether the Commons shall be present or not In Complaints of Extortion Id. 173. and Oppression the Lords awarded Satisfaction to the Parties wronged which sometime was certain sometime general but alway secundùm non ultra Legem It appeareth plainly by many Precedents Id 176 177. That all Judgments for Life and Death are to be render'd by the Steward of England or by the Steward of the King's House and this is the Reason why at every Parliament the King makes a Lord Steward of his House tho' he hath none out of Parliament And at such Arraignment the Steward is to sit in the Chancellor's Place and all Judgments for Misdemeanors by the Chancellor or by him who supplies the Chancellor's Place In Case of Recovery of Damages Id. 187. or Restitution the Parties are to have their Remedy the Parliament being ended in the Chancery and not in any other inferior Court at the Common Law But the Lords in Parliament may direct how it shall be levied The Judges who are but Assistants to the Vpper House have leave from the Lord Chancellor or Keeper to sit covered in the House Sir Simon d'Ewes Jour 527. Col. 2. but are alway uncovered at a Committee 3 Car. 1. The Sentence of the Lords Spiritual and Temporal Petyt 's Miscel Parliament 212 213. pronounced by the Lord Keeper against Ensign Henry Reynde for ignominious Speeches uttered by him against the Lord Say and Seal and for his Contempt of the High Court of Parliament was thus 1. That he never bear Arms hereafter but be accounted unworthy to be a Soldier 2. To be imprisoned during Pleasure 3. To stand under the Pillory with Papers on his Head shewing his Offence at Cheapside London and at Banbury 4. To be fined at 200 l. to the King 5 To ask Forgiveness here of all the Lords of Parliament in general and of the Lord Say and his Son both here and at Banbury The Court of Star-Chamber ordered by the Lords to put the said Sentence in Execution Id. 213. out of Time of Parliament CHAP. V. House of Commons THE House of Commons was originally Sir R. Atkyns Argument c. p. 13. and from the first Constitution of the Nation the Representative of one of the Three Estates of the Realm and a part of the Parliament It is affirmed by Mr. Lambard Lambard 's Archeion 257 258. That Burgesses were chosen to the Parliament before the Conquest The ancient Towns call'd Boroughs Littleton Sect. 164. are the most ancient Towns that are in England for the Towns that now are Cities or Counties in old time were Boroughs and call'd Boroughs for that of such old Towns came the Burgesses to the Parliaments Knights of the Shire to serve in Parliament Sir Rob. Atkyns 18. and the paying Wages to them for their Service has been Time out of Mind and did not begin 49 Hen. 3. for that is within Time of Memory in a Legal Sense The House of Commons Id. 34. as a Member of the High Court of Parliament have been as ancient as the Nation it self and may in the Sense of Julius Caesar be accounted among the Aborigenes and that they have had a perpetual Being to speak in the Language of the Law a Tempore cujus Contraria memoria Hominum non existit and that they are therefore capable by Law together with the rest of the Three Estates in Parliament to prescribe and claim a share in all Parliamentary Powers and Priviledges I do not mean separately but in conjunction with those other Estates which they could not otherwise legally have done Petyt's Preface to the ancient Rights of the Commons c. p. 3. if their Original and
Returned And notwithstanding their Resolutions scilicet the Resolution of the Judges the Commons House hold clearly that Sir Francis Goodwyn was well Received into Parliament and the King commanded them to Confer together and Resolve if they could of Themselves and if they could not Resolve to Confer with the Judges and then to Resolve and when they were Resolved then to deliver their Resolution to his Councel not as Parliament men but as his Privy Council by whose hands he would receive the Resolution and for that purpose he left them behind him he himself being to ride to Royston a hunting And to pursue the Commandment of the King the Commons House clearly Resolved That what they had done was well and duly done and they were of Opinion clearly against the Judges as to the Matter of the Outlawry and that Ratione of the Presidents And also that the Parliament only had to do with the Sheriff's Returns of Members of Parliament and that the Returns ought not to be made till the first day of the Parliament and therefore They would not confer with the Judges But they appointed a Committee to consider of the Reasons to be delivered to the Council for the Satisfaction of the King which Committee by the Assent of All the House of Commons sent to the Lords this Resolution following videlicet As to what the King taxed the House for That they medled with the Sheriff's Return of Members of Parliament Note This Resolution was written in Parchment and so delivered to the Council of the King not as Parliament men but Representing the King's Person and a Copy thereof was kept in the House being but one half of the Body the Lords being one and the Principal Part of the Parliaments Body As to that They Answered That all Writs for the Election of Members of Parliament were returned into the Parliament House before 7 Hen. 4. at which time it was Enacted That all such Returns ought to be made in Chancery and that appeared by the Records from the Time of Edward the First until the said Year of the Seventh of Henry the Fourth And therefore the Parliament must of Necessity have only medled with the Returns till the making of the said Statute of the Seventh of Henry the Fourth at which time the place of the Return was alter'd and Enacted to be in Chancery but yet that did not take away the Jurisdiction of the Parliament to meddle with the Returns of the Members of Parliament but that remained as it was before And this was manifest as well by Reason as by Vse For that Court is to meddle with Returns where the Appearance and Service of Members is to be made and used But in the Parliament only the Appearance and Service are to be made and used and therefore in the Parliament only are the Returns to be examined and censured Likewise ever since the making of the said Statute of the Seventh of Henry the Fourth the Clerk of the Crown attends the Parliament every day till the end of it with all the Writs and Returns and at the end of the Parliament he brings them into the Petty Bag. The Presidents also do warrant this intermedling with Returns for the Parliament as in the Twenty ninth of the Queen a Writ issued forth to the Sheriff of _____ who made a Return before the day into Chancery and the Chancellour upon that Return containing such matter as this Writ now contains sent a second Writ to the said Sheriff who thereupon made a new Election and that second Writ was also returned and both the Writs and Returns brought into Parliament and there Censured by the Parliament That the first should stand and that the second Election was void and that the Chancellour hath no Power to award a second Writ nor to meddle with the Return of it and divers other Presidents were shewn by the Commons to the same Effect videlicet In the Nine and twentieth of Queen Elizabeth One. And in the Three and fortieth of Queen Elizabeth another And in the Thrity fifth of the Queen two Whereof one was upon the Return of the Sheriff that the Party first elected was Lunatick and thereupon the Parlament examined it and upon Examination thereof they found the Return true and gave a Warrant for another Writ As to the Matter that they were but One half of the Body to that they said That though in the making of Laws they were but an Half Body yet as to Censuring of Priviledges Customs Orders and Returns of their House They were an Entire Body as the Vpper House was for their Priviledges Customs and Orders which Continual and Common Vsage hath Approved of As to their Charge of having used Precipitancy and Rashness they Answered That they used it in such a Manner as in all Other Cases they were wont to do scilicet To have first a Motion of the Matter in Controversie and then they caused the Clerk of the Crown to bring the second day the Writs and Returns and They being thrice read they proceed to the Examination of them and upon Examination gave Judgment which was the true Proper Course of the Place As to the House's not having used the King well the thing being done by his Command they say That they had no Notice before their Sentence that the King himself took any special Regard of that Case but only that his Officer the Chancellour had directed the second Writ as formerly had been done As to the Matter of the Outlawry They said That they understand by his Royal Person more strength and light of Reason from it than ever before and yet it was without Example That any Member of the House was put out of the House for any such Cause but to prevent that they had prepared a Law That no Outlawed Person for the time to come should be of the Parliament nor any Person in Execution should have the Priviledge of Parliament But they said further That Sir Francis Goodwyn was not Outlawed at the Day of his Election for he was not Quinto Exactus the five Prolamations never had been made which Proclamation they in London always spare except the Party or any for him require it and that Exigent was never Returned nor any Writ of Certiorari directed to the Coroners to certifie it but after his Election which was a thing unusual the Money being paid the Sheriffs being long since dead to Disenable the said Goodwyn to serve in Parliament that the Exigent was returned and the Names of the deceased Sheriffs put thereto Et ex hoc fuit without doubt that Goodwyn could not have a Scire Facias for there was no Outlawry against him and by Consequence the Pardons had discharged him And They farther shewed to the King That if the Chancellour only could examine Returns then upon every Surmise whether it were True or False the Chancellour might send a Second Writ and cause a New Election to be made And thus the Free Election of the County should be Abrogated which would be too Dangerous to the Commonwealth For by such means the King and his Council might make Any Man whom they would to be of the Parliament House against the great Charter and the Liberties of England FINIS BOOKS Printed for and sold by Timothy Goodwin at the Maiden-head against St. Dunstan 's Church in Fleetstreet 1. AN Enquiry into the Power of Dispensing with Penal Statutes together with some Animadversions upon a Book writ by the late Lord Ch. Justice Herbert Entituled A short Account of the Authorities in Law upon which Judgment was given in Sir Edw. Hales Case 2. The Power Jurisdiction and Priviledge of Parliament and the Antiquity of the House of Commons asserted occasioned by an Information in the Kings Bench by the Attorney-General against the then Speaker of the House of Commons As also A Discourse concerning the Ecclesiastical Jurisdiction in the Realm of England occasioned by the late High Commission in Ecclesiastical Causes in King James II. 3. A Defence of the late Lord Russel's Innocency Together with an Argument in the great Case concerning Elections of Members to Parliament between Sir Sam. Bernardiston Bar. Plaintiff and Sir Wil. Soames Sheriff of Suffolk Defendant in the Court of Kings Bench in an Action upon the Case and afterwards by Error sued in the Exchequer Chamber 4. The Lord Russel's Innocency further defended by way of Reply to an Answer Intituled The Magistracy and Government of England Vindicated These four writ by the Rt. Hon. Sir R. Atkyns Knight of the Bath and Lord Chief Baron of their Majesties Court of Exchequer 5. A New Declaration of the Confederate Princes and States against Lewis XIV King of France and Navar Deliver'd in a late Audience at Versailles July 5. 1689. 6. Politica Sacra Civilis or a Model of Civil and Ecclesiastical Government wherein besides the Positive Doctrine concerning the State and Church in General are debated the Principal Controversies of the Times concerning the Constitution of the State and Church of England By George Lawson Rector of More in Salop. 7. The Parsons Councellor with the Law of Tythes and Tything In two Books The fourth Edition with the Addition of a Table Written by Sir Simon Degge 8. The Gentleman's Jockey and Approved Farrier instructing in the Natures Causes and Cures of all Diseases incident to Horses The Eighth Edition Enlarged 9. Popery or the Principles and Positions approved by the Church of Rome dangerous to all And to Protestant Kings and Supreme Powers more especially pernicious By Thomas Lord Bishop of Lincoln 10. A Modest Vindication of the Protestants of Ireland in Answer to the Character of the Protestants of Ireland 11. Sir St. John Broderick's Vindication of himself from the Aspersions cast on him in a Pamphlet written by Sir Richard Buckley Entituled Proposals for sending back the Nobility and Gentry of Ireland 12. Animadversions on Sir R.B. Proposals for sending back the Nobility and Gentry of Ireland 13. The Justice of Parliament in Inflicting Penalties subsequent to Offences vindicated and the lawfulness of the present Government asserted