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
Vide ante Brig-bote Here-fax Here-geld c. Tho' we may well conclude those Customs and Duties to have been originally granted by Assent of the Commons in a Parliamentary Assembly as 'tis certain Peterpence Danegeld Spelman ib. Horngeld c. were As to Peterpence Idem in Verbo Romascot See Fedus Edvardi and Guthurui c. 6. LL. Edgari c. 4. LL. Caunti c. 15. LL. Hen. 1. c. 12 c. In verbo Subsidium otherwise called Romescot and Romefee whether the same was first granted by King Ina as is generally said or by King Offa as others affirm 'tis plain a Parliamentary Consent was had thereto as the Laws touching the Regulation of the same doe manifestly prove And as to Danegeld c. Sir Henry Spelman says The Danes having oppressed the Land King Egelred i. e. Ethelred in the Year 1007 yeilded i. e. by consent of Parliament to pay them for obtaining Peace 10,000 l. which was after encreased to 36,000 l. then to 113000 l. and lastly to a yearly Tribute of 48,000 l. and for the raising of this Tax Note this Tax appears to have been promoted by some Church-men who tis probable shared the plunder Splem ut Supra every Hyde or Plough Land was charg'd with 12 d. Yearly Church Lands excepted and thereupon twas called Hydage which Name was afterwards apply'd to all Taxes and Subsidies imposed on Lands but if the Tax was laid on Cattle 'twas call'd Horn-geld The Normans says the same Author called these sometimes from the Latin and Greek Word Taxes and sometimes from their own Language Tallagia signifying to cut or divide from as the Word Excise doth at present and sometimes they denominated 'em according to the usual Words beyond Sea Auxilia and Subsidia Ayds and Subsidies and accordingly W. 1. had those Taxes or Tallages and made Laws for the manner of Levying them Vide LL. W. 1. p. 125. Rights of the Kingdom 115. But this also seems to be by pretence or colour of I cannot call it a free Parliament But to return to the Saxons and their manner of granting Aids and Taxes Hist Aethelwerdi Li. 3. we may observe that King Egbert who is generally said to have been the first Monarch of England seems to have attained his Conquests and Extent of Dominion chiefly by the extraordinary Aids and Supplies granted by his Commons See Ingulph p. 6.12.17 and that by the same Means he was enabled so vigorously to Repel the Danes c. To this purpose we meet with a Passage in the History of Croyland viz. That this King confirmed a grant of Lands to that Abby coram Pontificibus Majoribus totius Angliae i. e. as I apprehend before the Prelates Peers and greater Commons of all England who as the History saith were then met together at London consulting how to provide Aids and Supplies contra Danicos Piratas c. The whole Passage proves this Transaction to have been in a general Council or Parliament met purposely for the raising of new Aids and the Word Majores seems plainly to intend the Representatives of the Commons and to be of a lower Degree than the proceres or Temporal Peers Vide Bed Hist And that the Commons attended at that Consult may not only appear from divers of the Names Subscribed to that Charter But 'tis also evident from Bede and other antient Authors that the Word Majores was then used to signify such Officers and Magistrates as we now Term Sheriffs of Counties and Mayors or Bailiffs of Towns and Cities And tho' the Word Danegelt Ingulph is not quite so antient as the Time of K. Egbert yet that the first grant thereof was with consent of the Commons appears from the Laws of Edward the Confessor Hoveden who first remitted it it having been diverted from its Original and true Institution the very Cause ceasing under the Kings of the Danish Race who notwithstanding continued the Tax and which tho' remitted by the Confessor was afterwards revived by the Conqueror See Laws of W. 1. as a proper Expedient for augmenting regal Power and yet this Revival seems also to be by consent of or under colour of a Parliament But further In the abovementioned History of Croyland Hist Ingulphi ad Annum 855. there is a remarkable Charter made by Ethelwulph the West Saxon King who was Son and Successor to K. Egbert and the Father of his four Successors i. e. Ethelbald Ethelbert Ethelfred and Alfred Rights of the Kingdom p. 84 85. The Charter itself imports a grant of Lands Tythes c. to that Abby and in the Body of it is said to be made cum Consilio Episcoporum Principum c. and is Subscribed by and in the presence of the Kings of Mercia and East Anglia Omniumque Archieporum Episcoporum Abbatum Ducum Comitum Procerumque totius Terre aliorumque Fidelium infinita Multitudine Qui omnes Regio Chirographo Laudaverant A pregnant Instance of a Saxon Parliament compos'd of Kings Lords and Commons and of the concurrent Assent of the three Estates in the passing of the Grant I cannot here forbear observing an Expression in that Introduction to the Laws of K. Alphred which might seem strange in a King at this Day where speaking of his Establishing those Laws See Wilkins p. 34 and Lambard 26. Ex consulto Sapientum Suorum By consent of his Parliament he goes on thus Fortham ic ne durst gedyrst-laecan c. for that he durst not attempt to do it otherwise and it concludes thus Ergo Ego Alphredus omnibus Sapientibus meis hic usus sum et illi dicebant quod ipsis omnibus bene placuerint ea quae Statuta Suut ut observarentur And Andrew Horn a Learned Lawyer Mirror of Justices who wrote Temp. Ed. 2. in many places of his Book Speaks of K. Alphred's Parliaments and that his Laws were made by Assent of his Great Wise Men and Commons He Expresly mentions and applauds that Law of his that Parliaments ought to be held twice Yearly and Declares the Non-observance of that grand Law of State to be one of the highest abuses of Law and Government I might here also take notice of other Parliaments of the same King Wilkins LL. Saxon p. 51. particularly that Treaty entered into between him and Guthrun the Dane which was made Ex Sapientum anglorum Consilio and I might further shew that all the Acts of State both of him and his Saxon and Danish Successors were made and transacted with the consent of the Commons as well as Consilio Magnatum But the Point is so fully proved in our antient Historians as well as in the stile used by those Princes in their Enacting of Laws that I conceive my further Endeavours to illustrate it would prove but holding a Candle to the Sun And as for the Norman Times tho' the two Williams Father and Son endeavour'd what they could to suppress the Rights of the Commons yet we find on the Death of the latter the
Proxy and so many excellent Things were done that it was called Bonum Parliamentum At the Return of the Writs Ib. 6. the Parliament cannot begin 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 authorizing them to begin the Parliament or to prorogue it c. When a Parliament is call'd Ib. 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 Ib. 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 Ib. 17. If Offences done in Parliament might have been punish'd elsewhere Ibid. Vide 1 Inst Sect. 108. it shall be intended that at some Time it would have been put in Ure It doth not belong to the Judges Ib 50. to judge of any Law Custom or Priviledge of Parliament The Judges 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 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 It is the just and constant Course of Parliament Seld. Judic 95. to bring the Party accused to his Answer Yea 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 Sir R. Atkyns Argument c. 14. according to the Law and Usage of Parliament is properly and in the Judgment of the Law the Act of the whole Parliament And what concerns the one must of Necessity concern the whole not meerly by Consequence but by an immediate Concernment as being one and entire The three Estates of Parliament are one entire Body and Corporation Ib. 34 41 51 55. Vide Rast St. 2. 3. E. 6. c. 36. Pref. All their Powers and Priviledges in the Right of them and in the Title to them are entire per my per tout and belonging to the whole Body of the Parliament tho in the Exercise of those Powers and sometime in the Claim of them they are distinguish'd and in the Practise of their Powers they are in many Things distributed into Parts All the Estates in Parliament are call'd by one common Name Ibid. as Commune Concilium Regni Magna Curia they are one Body Politic. It is said by Fineux Chief Justice That the Parliament at the common-Common-Law consists of the King Lords and Commons and they are but one Body corporate The Liberties and Franchises of the Parliament in the Right of them Ib. 55. are entire and due to both Houses for both make up the Parliament Knighton one of our best Historians doth notably disclose the antient Ends of calling Parliaments Knyghton de Eventibus Augliae l. 5. f. 2681. col 1.2 Pettyt's Rights c. in Pref. p. 43. 44. Hollings f. 1055. col 1. in saying Quod ex Antiquo Statuto Consuetudine landabili approbata c. That by an antient Statute and Custom laudable and approved which no Man could deny the King was once in the Year to convene his Lords and Commons to his Court of Parliament as to the highest Court in the whole Realm In qua omnis Aequitas relucere deberet absque qualibet Scrupulositate vel nota tanquam Sol in Ascensu Meridiei ubi Pauperes Divites pro Refrigerio Tranquilitatis Pacis Repulsione Injuriarum Refugium Infallibile quaerere possent ac etiam Errata Regni reformare de Statu Gubernatione Regis Regni cum Sapientiori Concilio tractare ut Inimici Regis Regni Intrinseci Hostes Extrinseci destruantur repellantur qualiterquoque Onera incumbentia Regi Regno levius ad Ediam Communitatis Supportari potuerunt i. e. In which Court all Equity ought to shine forth without the least Cloud or Shadow like the Sun in its Meridian Glory where Poor and Rich refreshed with Peace and Ease of their Oppressions may always find infallible and sure Refuge and Succour the Grievances of the Kingdom redressed and the State of the King and Government of the Realm debated with wiser Councels the Domestick and Foreign Enemies of the King and Kingdom destroy'd and repelled and to consider how the Charges and Burthens of both may be sustained with more Ease to the People Minshieu But these six Degrees were never allowed to be six Estates of Parliament in his Etymological Dictionary tit Parliament says In a Monument of Antiquity meaning the antient Modus Tenendi Parliament shewing the Manner of holding the Parliament in the Time of K. Edward the Son of K. Etheldred which as the Note saith was delivered by the discreeter Sort of the Realm to William the Conqueror and allowed by him tis said That the Parliament consisted of six Ranks or Degrees it begins thus Rex est Caput Principium et Finis Parliamenti ita non habet Parem in suo Gradu Et sic a Rege solo primus Gradus est Secundus Gradus est ex Archiepiscopis Episcopis Abbatibus Prioribus per Baroniam Tertius Gradus est de Procuratoribus Cleri Quartus Gradus est de Comitibus Baronibus et aliis Magnatibus Quintus Gradus est de Militibus Comitatuum Sextus Gradus est de Civibus et Burgensibus Et ita est Parliamentum ex sex Gradibus En Antient temps tout le Parliament sea Insimul Rolls 1. Report fol. 18. ante 54. et le Separation fuit perle desire del Commons Mes nient obstant ils font forsque un Mese jen aie view un Record 30 H. 1. de lour degrees et seats 39 E. 3. per Choke ch Inst It is generally believed Reform'd vol. 2. p. 49. That the whole Parliament sate together in one House before E. 3. Time and then the inferior Clergy were a Part of that Body without Question But when the Lords and Commons were divided the Clergy likewise sate in two Houses and granted Subsidies as well as the Temporalities My Lord Chief Justice Coke says 1 Inst Sect. 164. fol. 109. The Parliament is the highest and most honourable and absolute Court of Justice of England consisting of the King the Lords of Parliament and the Commons And again the Lords are here divided into two Sorts viz. Spiritual and Temporal And the Commons are divided into three Parts viz. Into Knights of Shires or Counties Citizens out of Cities and Burgesses out of Boroughs In the High Court of Parliament all the whole Body
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
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 which Bishops are not Judgments in Parliaments for Death have generally been strictly guided per Legem Terrae i.e. Lex Parliamenti d. 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 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 are guided by the Rule 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 Ibid. The Judges of all the Courts of Common Law in Westminster are but Assistants and Attendants to the High Court of Parliament And shall the Assistants judge of their Superiors The High Court of Parliament is the dernier Refort 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 need not be proclaim'd 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 Parliam n. 38. A Truce being concluded between the English and French by King Edward's Ambassadors who therein had dishonourably 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 Precedent and Records that they poured 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 ther Rescue and in dutiful ways discharged those Locks and Bars which had been unjustly fastned on the Exchequer The Right of the Crown of England Stat. Prov. 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 Matters en Ley a trier vie del home a reverser Errors en Bank le Roy especialment lou est ascun Commune Mischief que l'ordinary Course del Ley n'ad ascun means a remedier en tiel Case ceo est le proper Court Et tonts choses que ils font sont come Judgments Et si le Parliament mesme erre Finche's Nomotecnia l. 2. c. 1. f. 21. 22. come il poet ceo ne poet estre reverse en ascun Lieu forsque en le Parliament Which because it is omitted as several other things are in the Book translated into English I will thus give it the Reader that does not understand French The Parliament hath Absolute Power in all Cases as to make Laws to adjudge Matters in Law to try Men upon their Lives to reverse Errors in the King's Bench especially where there is any Common Mischief which the ordinary Course of the Law hath not any means to remedy in such Case this is the proper Court And all things which they do are as Judgments And if the Parliament it self errs as it may that cannot be reversed in any place but in Parliament Sir Robert Cotton See Sir Robert Cot. Treatise of Parliaments p. 44 45 c in his Discourse of the Privilege and Practice of Parliaments says thus by Parliaments all the wholesom Fundamental Laws of this Land were and are Establish'd and Confirmed By Act of Parliament the Pope's Power and Supremacy in this Kingdom and the Romish Superstition and Idolatry were abrogated and abolished By Act of Parliament God's true Religion Worship and Service are or may be establish'd and maintain'd By Act of Parliament the two Universities of Oxford and Cambridge with other Cities and Towns have had many Privileges and Immunities granted em By Parliament one Pierce Gaveston a great Favourite and Misleader of King Ed. 2. was remov'd and Banished and afterwards by the Lords Executed Also by Parliament the Spencer's Favourites and Misguiders of the same King were Condemned c. and so was Delapool in H. 6. Time and others since By Parliament Empson and Dudley two notable Polers of the Common-wealth by exacting Penal Laws on the Subjects were Discover'd and afterwards Executed By Parliament the Damnable Gunpowder Treason hatch'd in Hell is recorded to be had in Eternal Infamy By Parliament one Sir Giles Mompesson a Caterpiller and Poler of the Common-wealth by exacting upon In-holders c. was discover'd degraded and Banished by Proclamation By Parliament Sir Francis Bacon Note the Censure on the late E. of Macclesfield Quere made by K. James 1. Baron of Verulam Viscount of St. Albans and Lord Chancellor of England was for Bribery c. discover'd and displac'd By Parliament Sir John Bennet one of the Judges of the Prerogative Court being Pernitious to the Common-wealth in his Place was discover'd and displac'd By Parliament Lyonel Cranfield sometime a Merchant of London and made by K. James 1. Earl of Middlesex and Lord Treasurer of England being hurfull in his Place to the Common-wealth was discover'd and displaced By Parliament Note Sir Francis Mitchell a jolly Middlesex Justice of Peace in the Suburbs of London another Canker-worm of the Common-wealth by Corruption in exacting an Execution of the Laws upon poor Alchouse-keepers Victuallers c. was discover'd and degraded from his Knighthood and
cause why they sent Burgesses of Parliament and all the Proceedings thereupon are Coram non Judice illegal and void And the Right of sending Burgesses to the Parliament is questionable in Parliament only and the Occasioners Procurers Note and Judges in such Quo Warranto's and Proceedings are punishable as in Parliament shall be thought consonant to Law and Justice And note See Bohun's Inst Legalis 186.190 c. The Practice and Proceedings on Quo Warranto's Mandamus's and some other Prerogative Writs seem to have been an Invention of the Judges in order to draw the Rights and Privileges of Burroughs and Corporations as well as of the People under the Cognizance of B. R. c. Where the Articles against the Delinquents are ex Parte Domini Regis Selden 's Judicature 118. there the Commons cannot reply nor demand Judgment for the Suit is the King's and not theirs In Trewinnard's Case Id. 39. Dyer 60 61. The Priviledge of the Commons is termed the Priviledge of Parliament and the Judgment given in that Case by the House of Commons is there said to be The Judgment of the most High Court of Parliament Sir Robert Atkyn's Argument 35. which proves they are not without a Judicial Power The King cannot take notice of what is done in the Commons House Id. 53. or deliver'd to them but by the House itself and that is one of the Laws and Customs of Parliament In 31 Hen. 6. Id. 55. When the Commons requested the King and Lords to restore their Speaker to them c. The Judges being demanded of their Counsel therein See this Case reported at large in Bohun's Debates in Parliament p. 276. c. Ibid. after mature deliberation they answer'd It was not their part to judge of the Parliament which may judge of the Law The Reason to judge of the Law signifies that they the Parliament can judge whether a Law be good or not in order to approve it and to re-enact it or to repeal a Law c. In 1621. Ibid. The House of Commons made a Protestation against all Impeachments other than in their House for any thing there said or done It was said by Mr. Justice Crook Id. 58. Rush Col. Vol. 1. f. 663. That regularly a Parliament-Man cannot be compelled out of Parliament to answer Things done in Parliament in a Parliamentary Course See Sir R. Atkins's Argument per Totum If it be done in a Parliamentary Course what Occasion can there be to answer for it But who shall judge what is a Parliamentary Course but a Parliament Not Judges of the Common Law for the Parliamentary Course differs from the Rules of the Common Law 27 Eliz. 1584 ordered Sir Simon d'Ewes Jour 347 Col. 2. That the Serjeant of this House do forthwith go to the Common Pleas Bar and charge the Recorder then pleading there to make his present Repair unto this House for his Attendance See and Note the Case of Judge Thorp Cottons Rec. 74 and 316. who 25 E. 3. was condemn'd to Death and to forfeit all his Lands and Goods for Bribery i. e. receiving 20 l. from a Person who had a Cause depending before him Note in the Parliament 11 R. 2. commonly called The Wonder working Parliament all the Judges as they were sitting in Westminster-Hall were arrested c. by Order of Parliament And the like happen'd to several Judges in the Convention Parliament upon the Revolution but Quere if their Commitment was by the Lords and Commons or by the Commons only See also the Journal of the House of Commons Journal of the Commons An. 1680. Anno 1680 several Orders and Resolutions of the Commons against divers of the Judges and others for encouraging Addresses c. in Order to obstruct the Meeting and Sitting of that Parliament And see there December the 30th the following Resolutions of that House viz. 1. That the several Writings Papers and Proceedings relating to such Members of the late Long Parliament of Pensioners who receiv'd Allowances out of the Monies appointed for secret Services be produced to this House 2. Nem. Contr. That no Member of this House shall accept of any Office or Place of Profit from the Crown without the Leave of this House nor any Promise of any such Office or Place during his being or continuing a Member of this House 3. That all Offenders herein be expell'd this House See there also the Report and Censure of the the Proceedings of divers of the Judges of Westminster-Hall viz. Sir Francis North Sir W. Scroggs Justice Jones and Baron Weston whereupon the House came to the following Resolutions viz. 1. That the Discharge of the Grand Jury of the Hundred of Osulston in Com. Middx by the Court of B. R. in Trin. Term last before the last Day of the Term and before they had finished their Presentments was arbitrary and illegal destructive to publick Justice a manifest Violation of the Oaths of the Judges of that Court and a Means to subvert the fundamental Laws of the Kingdom and to introduce Popery 2. That the Rule made by the Court of B. R. in Trinity Term last against Printing of a Book called The Weekly Pacquet of Advice from Rome is illegal and arbitrary the Judges thereby usurping to themselves Legislative Power to the great Discouragement of the Protestants and countenancing of Popery 3. That the Court of King's Bench in the Imposition of Fines on Offenders have of late Years acted arbitrarily illegally and partially favouring Papists and Persons popishly affected and excessively oppressing his Majesty's Protestant Subjects 4. That the refusing sufficient Bail in those Cases wherein the Persons committed were Bailable by Law was illegal and a high Breach of the Liberties of the Subject 5. That the Expressions in the Charge given to the Grand Jury by Baron Weston were a Scandal to the Reformation and tending to raise discord between His Majesty and his Subjects and to the Subversion of the antient Constitution of Parliaments and of the Government of this Kingdom 6. That the Warrant mentioned in the Report i. e. for Harry Carrs Commitment c. was arbitrary and illegal And then follow the several Resolutions for Impeaching the Judges above-named See also Ibid. Jan. 3. and the Articles against Scroggs c. And Jan. 4. 1680 resolved Nem. Cont. That such Members of this House who in this Time of imminent Danger do absent themselves without Leave of the House are to be reputed Deserters of their Trust and Neglecters of that Duty they owe to this House and their Country 27 Eliz. 1584 John Bland a Currier for making dishonourable Reflections on the House of Commons brought to the Bar and pardoned upon his Submission paying twenty Shillings Fee to the Serjeant and taking the Oath of Supremacy Eodem An. Id. 368. Col. 1. A Warrant for a Writ of Priviledge awarded for setting at Liberty John Pepler Servant to Sir Philip Sidney a Member of this House now Prisoner for Debt in the Compter in
or if a Quaker Declare That the Lands and Estates of for which I claim to give my Vote in this Election are not conveyed to me in Trust or for the behoof of any Person whatsoever And I do Swear declare before God that neither I nor any Person to my Knowledge in my Name or by my allowance hath given or intends to give any Promise Obligation Bond Back-Bond or other Security for re-disposing or re-conveying the said Lands and Estate any manner of way whatsoever and this is the Truth as I shall Answer to God The Freeholders Oath appointed to be taken By St. 2. Geo. 2. c. 24. Sect. 1. by Statute 2 Geo. 2. if Demanded by either of the Candidates or any two of the Electors I. A. B. Doe Swear or being one called a Quaker doe solemnly affirm That I have not received or had by my self or any Person whatsoever in Trust for me or for my Use and or Benefit directly or indirectly any Sum or Sums of Money Office Place or Imployment Gift or Reward or any Promise or Security for any Money Office Imployment or Gift in order to give my Vote at the Election and that I have not before been Polled at this Election But note Ibid. Sect. 2. This Oath seems intended for other Voters besides Freeholders for by Sect. 2. of the same Stat. 'Tis Ennacted That such Votes c. Ante. p. 132. Citizens and Burgesses within Cities and Burroughs St. 23. H. 6. c. 15. to Elect Citizens and Burgesses of the same and the Sheriff is to direct his Precept accordingly That the Nomination St. 2. W. M. c. 7. See 1 W. M. Sess 2. c. 2. Supra or Recommendation to the Electors of one of the Barons of each Cinque Port the two antient Towns and their Members claimed by the Lord Warden is contrary to Law and Void By the claim of Right made on the Abdication of King James the II. Claim of Right All Elections of Members of Parliament ought to be Free and it was Enacted accordingly See the Stat. Et vide post No Collector St. 5. W. M. c. 20. Officers of the Excise Supervisor Gauger or other Officer or Person whatsoever Concerned or Imployed in the Charging Collecting Levying or Manageing the Duties of Excise or any Branch or Part thereof shall by Word Message or Writeing or in any other manner persuade any Elector to give or disuade any Elector from giving his Vote for the Choice of any Person to be a Knight of the Shire Citizen Burgess or Baron of any County City Burrough or Cinque-Port and every Officer or other Person offending herein Penalty to forfeit 100 l. one Moiety to the Informer and the other to the Poor where the Offence is committed to be recoverd by him that Sues for it by Action of Debt Bill Plaint or Information in any Court of Record at Westminster And no Essoign Protection Privilege or Wager of Law or more than one Imparlance Incapacity and the Party Convicted to be for ever Incapacitated to bear any Office or Place of Trust under the Crown No Commissioner Collecter Comptroller St. 12.13 W. 3. c. 10 Officers of the Customs Searcher or other Officer or Person concerned or imployed in Discharging chargeing Collecting Levying or Managing the Customs or any Branch or thereof shall by Word Message or Writing c as above for the Excise Officers with the like Penalty Incapacity c. In many Cases Multitudes are bound by Acts of Parliament 4 Inst p. 5. which are not Parties to the Elections of Knights Citizens and Burgesses as all they that have no Freehold or who have Freehold in ancient Demesne and all Women having Freeholds or no Freehold and Men within the Age of One and twenty Years c. Every Inhabitant choosing or electing in any other manner than is prescribed by the Statute to forfeit an hundred Shillings half to the King St. 33. H. 8. c. 1. Ireland and half to him that will Sue for it If any Man keeps a Houshold in one County Arc. Parl. 25. and remains in Service with another Family in another County yet he may be at the choosing of Knights of the Shire where he keeps his Family Crempton's Juris 3. b. for it shall be said in Law a Dwelling in either of those Counties If the Mayor and Bailiffs or other Officer St. 23 H. 6. c. 15. Vid Cromp. Jur. 3. b. 4.2 where no Mayor is shall return other than those which be chosen by the Citizens and Burgesses of the Cities or Boroughs where such Elections be shall incur and forfeit to the King forty Pounds and moreover shall forfeit to every Person hereafter chosen Citizen or Burgess to come to Parliament and not by the same Mayor or Bailiff c. Return'd or to any other Person that will Sue for it forty Pounds That such Votes shall be deemed legal St 2. G. 2. c. 24. ibid. Sect. 2. What Votes shall be deemed legal which have been so declared by the last Determination in the House of Commons which last Determination concerning any County Shire City Borough Cinque-Port or Place shall be sinal to all Intents and Purposes any Usage to the contrary That no Person convicted of wilful and corrupt Perjury Sect. 4. Persons convicted of perjury never capable to vote or Subornation of Perjury shall after such Conviction be capable of Voting in any Election of any Member or Members to serve in Parliament That if any Elector shall ask receive Sect. 4. Persons taking Money or Reward for their Vote c. or take any Money or other Reward by way of Gift Loan or other Device or agree or contract for any Money Gift Office Imployment or other Reward whatsoever to give his Vote or to refuse or forbear to give his Vote or if any Person by himself or any imployed by him shall by any Gift or Reward or by any Promise Agreement or Security for any Gift or Reward corrupt or procure any Person to give his Vote or to forbear to give his Vote in any such Election such Person shall for every such Offence forfeit the Sum of five hundred Pounds On Conviction Forfeits 500 l with full Costs of Suit and every such Person after Judgment obtained against him in any Action of Debt Bill Plaint or Information or summary Action or Prosecution or being any otherwise lawfully Convicted thereof shall for ever be disabled to Vote in any Election to Parliament and also to hold exercise And disabled to Vote or to enjoy any Office or Franchise or enjoy any Office or Franchise to which he and they then shall or at any time afterwards may be intitled as a Member of any City Borough Town Corporate or Cinque-Port as if such Person was naturally Dead And that if any Person offending against this Act Sect. 5. Offenders in 12. Months after the Election discovering others in femnified shall within twelve Months after such Election discover any other Person offending against this Act so
near the Time of our Athelstane whose Laws as well as those of Ina c. are apparently derived from British Patterns run thus Hoelus Bonus Rex Waltiae convocavit Sextos viros ex Qualibet Centuria ad Domum Albam Hi erant ex Sapientissimis viris Regni Horum Sextorum 4 erant Laici 2 Scholastici Advocabantur autem Scholastici ne Laici quidquam Sacris Scripturis contrarium Statuerent c. Tum Communi Consilio consensu Sapientes illic congregati Leges veteres inspexerunt Quod durum nimis esse videbatur allevarunt Quod nimis leve fuit aggravarunt Quasdam ex eis ut prius erant reliquerunt alias emendarunt alias penitus abrogarunt alias denique de novo Statuerunt L. L. Hoeli p. 5. 7. and lastly a Curse is pronounced on that King or other Persons who should attempt to change any of those Laws without the consent of a General and full Council or Parliament Touching the Saxon Parliaments Antiq. of Parl. p. 4. Spelman in Voce Wapentachia we may observe that at first all their Councils and Parliamentary Assemblies whether they debated of Peace or War were as Caesar and Tacitus observe of the Germans c. Sub. fremitu armorum Their averseness at first to the Britons and their Customs consirm'd them in this practice Selden's Epinomis 5 6. till another Species of Christianity different from that of the Britons was introduc'd amongst them when they soon applyed themselves to more civilized Assemblies and the making of Laws only Egbert King of Kent and some of his Successors being too much influenced by Austin the Monk and others of his Order gave the Clergy opportunity to Usurp over the Rights and Properties of the Laity and hence all the Laws of Ethelbert Wilkins LL. Saxon p. 1. to 14. Hlothair Eadric and Wihtred shew a Manifest partiality to Churchmen and indeed their general Councils or Parliaments seem to be composed only of Ecclesiastics But after these Ina the West Saxon King being near of Kin to Cadwallader and of British as well as Saxon Blood seems to have Established a better Plan of Government and to have Founded his Parliamentary Assemblies on a British Pattern For the Prolegomenon to his Laws runs thus Wilkins LL. Saxon p. 14. Selden's Janus 93. Ego Ina Dei Gratio occiduorum Saxonum Rex consilio Doctrina Suasu Cenredae Patris mei Heddae Episcopi mei Eorkenwoldae Episcopi mei et cum omnibus meis Senatoribus Senioribus Sapientibus Populi mei c. So that his Parliamentary Assembly plainly appears to have been composed of King Lords and Commons and as many of his Laws respect the Britons as well as the Saxons so his Parliamentary Assemblies seem to consist of the Representatives of both People whom he endeavoured to unite in one Body As for the Laws of King Alfred See Wilkins ibid. p. 34. tis evident from the Conclusion of the first Part or rather the Introduction to the Second That they were made in a General Council or Parliamentary Assembly in Imitation of the Britons and here I beg leave to produce my Authorities which prove That this King as well as Ina took the Pattern of his Laws and Government from the Britons Wilkins ut supra induced hereto as tis probable by that Relation in Blood he bore to King Ina whom he stiles Cognatus meus See the Notes on LL. Hoeli p. 4. But more effectually by the Advice and Persuasion of Asser Menevensis who wrote his Life was one of his chief Counsellors and a Briton born The Author of the Life of King Alfred Life of Alfred p. 96. 97. 98 c. says That he compiled his Laws chiefly from those of the Old and New Testament and after those added several Matters taken from the Laws of the Trojans Greeks Hist Jornalen ad A. D. 1066. Britains c. And mention is made in the Notes thereon That he took divers of his Laws from those of Dunwallo Molmutius an antient British King And herewith Ponticus Virunnius agrees Pon. Vir. l. 3. p. 10. whose Words are Belinus habens totius Britaniae Dominium Paternas Leges i. e. Molmutianas confirmavit alias Statuit Quas omnes Gildas Historicus convertit in Latinum Ib. p. 14. Rex vero Alfredus De Latino in Anglicum Sermonem transtulit See Hygden's Polychron l. 1. c. 50. And afterwards he says Martia etiam quae fuit uxor Regis Britonum Guitellini condidit Leges quae Martiana Lex dicebatur quas Rex Alvredus inter caetera transtulit in Saxonicam Linguam But more particularly Mr. Dugdale Dugdal Mon. v. 1. p. 32. Sub Ann. S 2. vide ib. p. 40. has from an antient MS given us this Passage viz. Leges Britonum Rex Alvredus transtulit in Anglicum quae tunc dicebantur Leges Alvredi Multos Libros transtulit eodem modo Iste instituit Hundredos Tythingas these are known to be of British Original Sheringham p. 125. 126. c. See also touching this Matter Sheringham De Anglorum Gentis Origine Who further observes That many Words introduced into the Saxon and English Laws are of British Original as Murder Denizon Rout c. And hence the Author of the Notes on the Laws of Howel Dha LL. Hoeli p. 4. has justly remark'd That Alfred learnt the Partition of Shires Hundreds c. from Asser Menevensis a learned Briton Hollinshead also in his History Hollinsh Part 1. p. 15. or Chronicle speaking of the Laws of Dunwallo Molmutius says That King Alfred translated them into English and inserted them in his Body of Laws And Mr. Taylor in his Treatise of Gavelkind Hist Gavelkind p. 52. 53. N. B. ib. p. 49. says That both Ethelfred and Alfred translated the Welch Laws and expresly affirms That the Saxons had their Laws from the Britons And if so we may well conclude That they had the Modus Condendi Leges or Method of enacting Laws in a Parliamentary Assembly from them also But a Question has arisen how far the Commons were a constituent Part of those Assemblies in the Time of the Saxons Magnates Proceres include the Commons Vide Post 34. and it must be confess'd That generally those Councils are said to consist of the King and his Bishops See Brady of Burros and his Introduction and the Wisemen or Magnates Great Men only or perchance sometimes with the Words Seniores Populi added as in Ina's Laws But whether the Commons were present either in Person or by Representation is in the Opinion of some Inquirers very doubtful Now Lambard LL. Sax. p. 26. 27. in Order to clear this Doubt it will be necessary to consider who were those Magnates and Seniores or Sapientiores Populi and how they came to be so denominated And first Wilkins LL. Sax. p. 96. 97. Post 35. I am of Opinion That the Words Magnates Seniores did intend not only those which were Rulers or Governors of Counties and Hundreds either Civil or Military
David was consecrated Bishop of Bangor by the then Archbishop of Canterbury but tis expresly said That he had been thereto elected A Principe Clero Populo Walliae i. e. by a Welch Parliament And in the same Reign one Gregory an Irish Abbot was elected to the Bishoprick of Dublin a Rege Hiberniae Clero Populo an Irish Parliament So that the Commons at this Time were a a constituent Part of the Scottish Welch and Irish Parliaments as well as with us in England And in the Year 1128 Vide Sax. Chro. sub An. 112. I find that fam'd Scholar Gilbertus Universalis to be elected and consecrated Bishop of London Annuente Clero Populo This seems at a Parliament at London But this Right of the Commons in electing Bishops does more clearly appear in H. the 2d's Time when all Historians agree it to be a general Custom both here and in France and seems founded on divers express Canons of the Primitive Church Insomuch as Mezeray in his History asserts That until that Time i. e. the Middle of the 12th Century The Voice of the People in electing Bishops was esteem'd the Voice of God The Successors of K. H. 1. K. Steven Mat. Par. 51. took their Coronation Oaths in a Form much more enlarged for the Ease of the Commons than those of King Henry 1. or his two Predecessors Thus K. Steven swore Coram Regni Magnatibus i. e. the Lords and Commons convoked at London Ad meliorationem Legum juxta voluntatem Arbitrium singulorum which must mean That he would reform the Laws according to their common Consent in Parliament and afterwards going to Oxford i. e. to hold his Parliament Ibi confirmavit Pacta quae Deo Populo in Die Coronationis suae concesserat This I take to be meant of Danegelt Hydage Cornage c See there some Particulars of his Oath whereof the 3d is Tallagia Quae autecessores ejus accipere consueverant in aeternum condonaret And in the following Year on the Arrival of Rob. Earl of Glocester Ibid. 51. this King was again sworn to observe the Good Laws of the Realm and thereof granted his Charter and see there the conditional Homage paid to the King by that Earl I might here pursue this Thread of Coronation Oaths in those of H. 2. R. 1. K. John Vide Ib. 42. in pede 51. and the Praef. to Privilegia Londini Rights of the Kingdom p. 88. c. but my Intention is not to trace the Practices of Kings in taking Coronation Oaths an unlucky Blot remains in History as to those Princes I have already named it being generally observed Impudenter fregerunt c. An Author who seems to be very conversant in Matters of this Nature and observes thus The King's Oath is to confirm the just Laws which the Commons not the Lords shall elect or choose in Latin Quas vulgus elegerit and in the old French Oaths of Edw. 2. and Edw. 3. tis Les quels la Communaute aux Eslue And in the English Oaths of H. 8. and other Princes See Sir R. Atkyns ut supra p 28 29. tis Which the Commons of the Realm shall choose And that the antient Writs for summoning the Commons are Nobiscum tractur consilium impensur de arduis Negotiis Regni And the same Author The King dom's Rights ut supra a little before says thus The Mirror as well as Tacitus shews how our Lords were originally raised out of and by the Commons and with Bracton Fleta c. gives them a judicial Power over the Rest c. Nay the Modus Parliamenti will not only tell us That the Commons have better and stronger Votes than the Lords but that there may be a Parliament without the Prelates c. For there was a Time wherein there was neither Bishop nor Earl and yet there were Parliaments without them but never without the Commons and concludes with the Impossibility of holding a Parliament without them thus Parliamentum sine Communitate tenebitur pro nullo quamvis omnes alii status plenarie ibidem intersuerint Lastly Sir R. Atkyn's Power of Parliament p. 32. The Freeholders of England had originally the Election of the Conservators of the Peace who are become out of Date by introducing Justices of Peace who have their Power not by any Election of the Freeholders as of Right they ought nor are they nominated by them but by the King and have their Power by his special Commission c. i. e. contrary to the common-Common-Law And how and by what Means and in what tempered Times this came about may be read in Lambards Eirenarcha Lambards Justice f. 16.19.20.147 c. It was done by Act of Parliament in the Beginning of K. Edw. the 3d's Reign and in his Minority when the Queen and Mortimer ruled all The Freeholders did also originally Sir R. Atkyns supra and from all Antiquity at their Folkmotes or County Courts chuse their Heretochii and what were these You may call them Lords Lieutenants Deputy Lieutenants or it may be Lieutenants Generals For the Saxon Laws tell you their Duty and Office LL. Ed. Conf. 35. Vide ante and that they were to be Ductores Exercitus c. All these great Officers were chosen by the Freeholders as our Knights of the Shires now are and as Conservators or Justices of Peace formerly were and as Coroners and Verdredors formerly Men of great Power still are by Writ at the County Courts These were mighty Powers and Freedoms Sir R. Atkyns supra See 4 Inst 174.558 and were enjoy'd by the People as antiently as any of our Records do reach which are more authentic Proofs of our Constitution than the Writings of Modern Historians c. And do best shew the native Freedom which the People had by the antient Constitution of our Government contrary to all the new Doctrines of our late Writers and prove That the Privileges and Freedoms we yet enjoy are not meer Emanations of Royal Favour as our Novellists would impose upon us CHAP. II. Of the Dignity and Excellency of Parliaments THE Parliament is the Foundation and Basis of Government Rushw Coll. 3d Part Vol. 1. fo 739 and consequently of the Peace and Happiness of the Kingdom as it creates the Law by which we are ruled and governed in Peace and Quietness so it preserves the Law in Power and Authority It watches over our Religion that it be not supplanted and exchanged by suppositious Innovations or the Truth and Substance of it eaten up with Formality vain Pomp and unnecessary Ceremonies It is the Conservative of the Rights and Liberties of the Subject and the Corrective of Injustice and Oppression which by equal Right is distributed to all and every Man hath that Benefit and Protection of Justice which is due to him It is that by which alone common Necessities can be provided for and Publick Fears prevented so that I may say not only the Peace and Happiness and well Being but the very
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
less than the united Consent of all and every Person of the Kingdom and under this Notion its Power is Unlimited and Universal its Authority is the most unerring and firm support of Monarchy and Government and has been ever used as the only Expedient to accommodate the differences of Pretenders and Competitors to arbitrate and decree not only the Right and Possession but even the Inheritance and Reversion of the Regal Power to succour and defend the King and Kingdom against all possibility of Injury or Incroachment that might be Intended against or Usurped upon it or its Authority to decree the Nations Liberties ascertain Property and to establish an unquestionable Peace and Security to all the People both from the danger of Grievances at Home or the Assaults of foreign Power In this capacity it hath Power above the Law itself Hollinshead c. 1. vol. 1. p. 173. having Power to alter the common Law of England to declare the meaning of any doubtful Laws to repeal old Patents Grants or Charters and Judgments whatsoever of the King or any other Court of Justice if erroneous or illegal and extends so far as finally to oblige both King and People to punish Offenders of all Sorts to examine into the corruptions of Religion and either to disanul or reform it Anno 1626. 2. Rushw Coll. vol. 1. p. 245. Car. the Commons in their Remonstrances declare that it hath been the antient constant and undoubted Right and Usage of Parliaments to question and complain of all Persons of what degree soever found grievous to the Common-Wealth in abusing the Power and Trust committed to them by the Sovereigns a Course approved of by frequent Presidents in the best and most glorious Reigns appearing both in Records and Histories c. In 30. E. 3. 7. H. 4. Rot. Parl. N o 31 32. the Parliament accused John de Gaunt the King's Son and Lord Latimer and Lord Nevil for misadvising the King and they went to the Tower for it In 11. Rushw Ib. p. 627. H. 4. N o 13. the Council are complained of and are removed from the King for that they mewed-up the King and disuaded him from the common Good In 4. H. 3. 27. E. 3. 13. R. 2. the Parliament moderateth the King's Prerogative and nothing grows to an Abuse says Sir Edward Coke but the Parliament hath Power to treat of and Correct it And King James the 1st Idem p. 62â— put the Commons assembled in Parliament in mind that it would be the greatest unsaithfulness and breach of Duty to his Majesty and of the Trust committed to them by the Country that could be if in setting forth the Grievances of the People and the Condition of all the Petitions of this Kingdom from whence they come they did not deal clearly with him without sparing any Persons how near and dear soever they were unto him if they were hurtful or dangerous to the Common-Wealth The most High and Absolute Power of the Realm of England Sir Tho. Smith's Common-wealth l. 2. c. 2. p. 72. Arcana Parl. 1. consisteth in the Parliament For as in War where the King himself in Person the Nobility the rest of the Gentility and the Yeomanry are is the Force and Power of England So in Peace and Consultation where the Prince is to give Life and the last and highest Commandment the Barony or Nobility for the higher the Knights Esquires Gentlemen and Commons for the lower part of the Common-wealth the Bishops for the Clergy be present to advertise consult and shew what is good and necessary for the Common-wealth and to consult together and upon mature deliberation every Bill or Law being thrice read and disputed in either House the other two parts first each a part Ibid p. 73. and after the Prince himself in presence of both the Parties doth consent unto and alloweth that it is the Prince's and whole Realm's Deed whereupon justly no Man can complain but must accommodate himself to find it good and obey it Thus the concurrent Consent of these three Estates when reduced to writing Inst Leg. p. 34. and pass'd in Parliament is as it were a Tripartite Indenture between King Lords and Commons and that which is so done by this Consent is called firm stable and sanctum and is taken for Law As to the Power of Parliaments Sir Tho. Smith ibid. Arc. Parl. 2. Vide Crompt Jur. 3. 1. It abrogateth old Laws 2. Maketh new Laws 3. Giveth order for things past 4. Directs things hereafter to be followed 5. Changeth Right and Possessions of private Men. 6. Legitimateth Bastards 7. Establisheth Forms of Religion 8. Altereth Weights and Measures 9. Giveth Form of Succession to the Crown 10. Defineth of doubtful Rights whereof is no Law already made 11. Appointeth Subsidies Tallies Taxes and Impositions 12. Giveth most free Pardons and Absolutions 13. Restoreth in Blood and Name 14. And as the highest Court condemneth or absolveth them who are put upon their Trial. In short Ibid. all that ever the People of Rome might do either Centuriatis Comitiis or Tributis the same may be done by the Parliament of England which representeth and hath the Power of the whole Realm both the Head and Body For every Englishman is intended to be there present either in Person or by Procuration and Attorny of what preheminence state dignity or quality soever he be from the Prince be he King or Queen to the lowest Person of England And the Consent of the Parliament is taken to be every Man's consent As to its Power over both the Statute and Common Law of this Realm Rastal's Statutes fol. 546. 25 H. 8. c. 21. you will be best informed of it from the memorable words of an Act of Parliament itself viz. Whereas this Realm recognizing no Superiour under God but only the King hath been and is free from Subjection to any Man's Laws but to such as have been devised made and ordained within this Realm for the Wealth of the same or to such other as by Sufferance of the King and his Progenitors the People of this Realm have taken at their free Liberty by their own Consent to be used amongst them and have bound themselves by long Use and Custom to the Observance of the same not as to the Observance of the Laws of any Foreign Prince Potentate or Prelate but as to the Custom and antient Laws of this Realm originally established as Laws of the same by the said Sufferance Consents and Custom and none otherwise It standeth therefore with Natural Equity and Good Reason that all and every such Laws Humane made within this Realm by the said Sufferance Consents and Custom that the King and the Lords Spiritual and Temporal and the Commons representing the whole State of this Realm in the most High Court of Parliament have full Power and Authority not only to dispence but also to authorize some Elect Person or Persons to dispence with those and all other Human Laws of
Custom of Parliament and therefore void The Authority of the High Court of Parliament to be committed to a few as in 21 Rich. 2. c. 16. Ibid. is holden to be against the Dignity of a Parliament and that no such Commission ought to be granted Tho' it be apparent what transcendent Power and Authority the Parliament hath Id. 43 and tho' divers Parliaments have attempted to bar restrain suspend qualify or make void the Power of subsequent Parliaments yet could they never effect it for the latter Parliament hath ever Power to abrogate suspend qualify explain or make void the former in the Whole or in any Part thereof notwithstanding any Words of Restraint Prohibition or Penalty in the former For it is a Maxim in the Law of Parliament Quod Leges posteriores priores contrarias abrogant An Act of Parliament doth include every Man's Consent Hobart 256. as well to come and unborn Persons as those present The Sovereign Power of this High Court of Parliament is such Hakewel 86. that altho' the King's Majesty hath many great Priviledges and Prerogatives yet many Things are not effectual in Law to pass under the great Seal by the King's Charter without the consent of Parliament as was resolv'd by all the Judges in the Princes case The King by his Letters Patents may make a Denizen Id. 87. Bro. Denizen N o 9. 36. H. 8. but cannot Naturalize him to all purposes as an Act of Parliament may do If a Man be Attainted of Felony Hakewel 89. or Treason by Verdict Outlawry Confession c. his Blood is corrupted which is a perpetual and absolute Disability for him or his Posterity to claim any Hereditament in Fee-simple either as Heir to him or any Ancestor paramount him and he shall not be restored to his Blood without Parliament And yet the King may give to any attainted Person his Life by this Charter of Parliament The King cannot alter the Common Law Id. 90. or the general Customs of the Realm as Gavelkind Borough-English or the like without consent of Parliament Altho' a King have a Kingdom by Discent Ibid. yet seeing by the Law of that Kingdom he doth inherit that Kingdom he cannot change those Laws of himself without Consent of Parliament By the Laws of this Kingdom Ibid. the King cannot by his Proclamation alter the Law but the King may make Proclamtion that he shall incur the Indignation of his Majesty that withstands it But the Penalty of not obeying his Proclamation may not be upon Forfeiture of his Goods his Lands or his Life without Parliament Le Parliament d'Engleterre ne lia Ireland quoad Terras suas Brook 123. 91. Vide 20 H. 6.9 Crompton 22. b. quar ils ont Parliament la mes il poient eux lier quant al Choses transitory come eskipper de Lane ou Merchandize al intent de ceo carrier al auter Lieu ultra Mare The Parliament of England cannot bind Ireland Quere infra as to their Lands for they have a Parliament there but they may bind them as to Things transitory as the shipping of Wool or Merchandize to the intent to carry it to another Place beyond the Sea 4 Inst 350. Sometimes the King of England call'd his Nobles of Ireland to come to his Parliament of England c. And by special Words the Parliament of England may bind the Subjects of Ireland The Lords in their House have Power of Judicature Id. 23. and the Commons in their House have Power of Judicature and both Houses together have Power of Judicature This Power is best understood by reading the Judgments and Records of Parliament at large Ibid. and the Journals of the House of Lords and 6 H. 8. c. 16. Rast 429 430. Vaughan 285. the Book of the Clerk of the House of Commons which is sometimes also styled a Record If Inconveniencies necessarily follow out of the Law only the Parliament can cure them If a Marriage be declared by Act of Parliament to be against God's Law Id. 327. we must admit it to be so for by a Law that is by an Act of Parliament it is so declared In many Cases Multitudes are bound by Acts of Parliament Id. 14. which are not Parties to the Elections of Knights Citizens and Burgesses as all they that have no Free-hold or have Free-hold in ancient Demesne and all Women having Free-hold or no Free-hold and Men within the Age of One and twenty Years Hob. 256. c. and we may add Persons unborn It is declared by the Lords and Commons in full Parliament upon Demand made of them on the Behalf of the King That they could not assent to any Thing in Parliament that tended to the disherison of the King and his Crown whereunto they were sworn The Expounding of the Laws doth ordinarily belong to the Reverend Judges Hakewel 94. and in Case of greatest Difficulty or Importence to the High Court of Parliament Errors by the Law in the Common-Pleas are to be corrected in the King's-Bench 4 Inst 22. Vid. Stat. 1 Jac. 1 c. 1. and of the King's-Bench in the Parliament and not otherwise i. e. where the Proceedings are by original Writ Instit Leg. 171.172 For if they are by Bill they may be corrected in the Exchequer Chamber by St. 27 Eliz. c. 8. from whence a Writ of Error lyes to the Parliament Actions at Common Law are not determined in this High Court of Parliament Selden's Judicature 2. yet Complaints have ever been receiv'd in Parliaments as well of private Wrongs as publick Offences And according to the Quality of the Person and Nature of the Offence they have been retained or referred to the Common Law There be divers Precedents of the Trial of Bishops by their Peers in Parliament Id. 4.5 as well for Capital Offences as Misdemeanors whereof they have been accused in Parliament And so there have been of Commoners As the Arch-Bishop of Canterbury 15 Ed. 3. n. 6 7 8. ibid. postea 44. 39. ibid 17 E. 3.22 And the Bishop of Norwich 7 Ric. 2. for Misdemeanors So were the Bishops of York and Chichester tried for Treason by their Peers in Parliament upon the Appeal of the Lords Appellants 11 R. 2. And Anno 21 R. 2. The Commons Accused the Arch-Bishop of Canterbury of Treason by their Peers in Parliament upon the Appeal of the Lords Appellants 11 R. 2. And Anno 21 R. 2. The Commons accused the Arch-Bishop of Canterbury of Treason and the Temporal Lords judged him a Traitor and banished him But if a Bishop be accused out of Parliament he is to be tried by an ordinary Jury of Free-holders for his Honour is not inheritable as is the Temporal Peers out of Parliament yet in all other Matters save that only of their Trial they have Priviledge as no Day of Grace to be granted against them in any Suit A Knight to be returned upon the Pannel where a Bishop is Party and no Process in a Civil Action to be awarded
c. 6 7. the Lords may proceed in Judgment against the Delinquents of what Degree soever and of what Nature soever the Offence be For where the Commons complain the Lords do not assume to themselves Trial at Common Law Q. Neither do the Lords at the Trial of a Common Impeachment by the Commons decedere de Jure suo for the Commons are then instead of a Jury and the Parties Answer and Examination of Witnesses are to be in their Presence Post 120. 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. Id. 98. Tho' the Lords refused to commit the Duke of Suffolk upon the Commons complaint of him of a common Fame of Treason yet when they accused him of a 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 viz. 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 Post 120. 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 secundum 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 are 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 Upper House have leave from the Lord Chancellor or Keeper Sir Simon d'Ewes Journal 527. Col. 2. to sit cover'd in the House but are alway uncover'd at a Committee 3. Car. 1. Petyt's Msscel Parliam 212 213. The Sentence of the Lords Spiritual and Temporal 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 or 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 in Particular both here and at Banbury And the Court of Star-Chamber ordered by the Lords to put the said Sentence in Execution out of Time of Parliament Id. 213. Vide a Sentence pronounced by the Lords Die Martis 26. Julij 1642. against one John Escot of Launceston in the County of Cornwall for speaking Scandalously of the Parliament in Rush Col. Vol. 1. f. 759 760. And likewise against John Marston Clerk Rector of St. Mary Magdalen in the City of Canterbury ibid. See divers particulars touching the Power and Jurisdiction of the House of Lords in Prynn's Plea for the House of Lords c. as also a Book printed Anno 1669. Entitled The Grand Question concerning the Judicature of the House of Peers Stated c. See also Sir M. Hales of Parliaments Pa. 138 139. and ibid 140 c. where Attendants on the upper House may be Members of the House of Commons Q. CHAP. VI. 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 assirmed by Mr. Lambard Lambard's Archeion 257 258. that Burgesses were chosen to the Parliament before the Conquest The antient Towns call'd Boroughs Littleton Sect. 164. are the most antient 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. Atkyn's 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 antient as the Nation itself and may in the Sense of Julius Caesar be accounted among the Aborigines 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 seperately but in conjunction with those other Estates which they could not otherwise legally have done if their Original and Commencement could have been shewn During the British Saxon Petyt's Preface to the antient Rights of the Commons c. p. 3. and Norman Governments the Freemen or Commons of England as now call'd and distinguish'd from the great Lords were pars essentialis constituens an essential and constitutent part of the Wittena Gemot Commune Concilium Baronagium Angliae or Parliament in those Ages It is apparent Id. 12. and past all Contradiction that the Commons in the Times of the Britons Vid. Ch. 1 ante 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 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
that such Person be thereupon Convicted such Person so discovering and not having been before that time Convicted of any Offence against this Act shall be indemnified and discharged from all Penalties which he shall then have incurred by any Offence against this Act. Enacted that forty five shall be the number of the Representatives of Scotland in the House of Commons of the Parliament of Great Britain Stat. 5. Annae c. 8. the Union Act. Of the said Forty-five Representatives of Scotland Members for Scotland Thirty shall be chosen by the Shires and Fifteen by the Royal Burghs as follows viz. one for every Shire and Stenartry excepting the Shires of Bute and Caitness which shall choose one by turns Bute having the first Election the Shires of Nairn and Cromarty which shall also choose by turns Nairn having the first Election and in like mannet the Shires of Clackmannan and Kinross shall choose by turns Clackmannan having the first Election and in case of the Death or legal Incapacity of the said Members from the said respective Shires or Steuartries Scotland the Shire or Steuartry who elected the said Member shall elect another Member in his Place And that the said Fifteen Representatives for the Royal Burghs shall be chosen as follows viz. That the Town of Edinburgh shall have Right to elect and send one Member and that each of the other Burghs shall elect a Commissioner in the same manner as usual to elect Commissioners and Burghs Edinburgh excepted being divided into fourteen Classes or Districts shall meet at such time and Burghs within their respective Districts as her Majesty her Heirs or Successors shall appoint and elect one for each District viz. the Burgs of Kirkwall Week Dornock Dingwall and Tain one The Burghs of Fortrose Inverness Nairn and Forress one The Burghs of Elgin Cullen Bamff Inverary and Kintore one The Burghs of Aberdeen Inverbery Montrose Aberbrothock and Brochine one The Burghs of Forfar Perth Dundee Coupar and St. Andrews one The Burghs of Craill Kilrenny Anstruther Easter Anstruther Wester and Pittenween one The Burghs of Dysart Kirkaldie Kinghorn and Bruntsland one The Burghs of Innerkethen Scotland Dunfermline Queens-ferry Culross and Sterling one The Burghs of Glasgow Renfrew Ruglen and Dumbarton one The Burghs of Haddington Dunbar North-Berwick Lauder and Jedburgh one The Burghs of Selkirk Peebles Linlithgow and Lanerk one The Burghs of Dumfreis Sanquhar Anna Lockmaben and Kirkeudbright one The Burghs of Wigtown New Galloway Stranraver and Whitehorn one The Burghs of Air Irvin Rothesay Cambletown and Inverary one And where the Votes of the Commissioners for the said Burghs met to choose Representatives from their several Districts shall be equal the President of the Meeting shall have a casting or decisive Vote and that by and according to his Vote as a Commissioner from the Burgh from which he is sent the Commissioner from the eldest Burgh presiding in the first Meeting and the Commissioners from the other Burghs in their respective Districts presiding afterwards by turns in the order as the said Burghs used to be called in the Rolls of the Parliament of Scotland and that in case any of the said fifteen Commissioners from Burghs shall decease or become legally incapable to sit in the House of Commons then the Town of Edinburgh Scotland or the District which chose the said Member shall elect a Member in his or their Place That none shall be capable to elect a Representative for any Shire or Burgh of Scotland unless twenty one Years of Age complete and Protestant excluding all Papists or such who being suspect of Popery and required refuse to swear and subscribe the Formula contained in the third Act made in the eight and ninth Sessions of King William's Parliament in Scotland nor shall be capable to elect a Representative to a Shire or Burgh in the Parliament of Great Britain for Scotland except such as were at the time of passing this Act capable by the Laws of Scotland to elect as Commissioners for Shires or Burghs to the Parliament of Scotland Enacted Stat. 6 A. c. 6. c. That when any Parliament shall at any time hereafter be summoned or called on Notice to be forthwith given after Receipt of the Writs by the Shertff or Stewart of the time of Election for Knights of the Shire or Commissioners for Scotland at such time of Election the several Freeholders in the respective Shires and Stewartries shall meet and convene at the head Burghs of their several Shires and Stewartries and proceed to the Election of their respective Commissioners or Knights for the Shire or Stewartry Scotland and the Clerks of the said Meetings shall respectively return the Names of the Persons Elected to the Sheriff or Stewart of the Shire or Stewartry on a Precept in like manner to be directed by the Sheriffs of Edinburgh to the Lord Provost of that City and on Receipt of such Precept the City of Edinbusgh shall elect their Member and their common Clerk shall certify his Name to the Sheriff of Edinburgh On Precepts in like manner to be directed by the Sheriffs or Stewarts of the several Shires or Stemartries where the other fourteen Districts of Royal Burghs respectively are reciting the Contents and Date of the Writ and commanding them to elect each of them a Commissioner as they used formerly to elect Commissioners to meet at the presiding Borough of their respective District naming it on the thirtieth day after the Teste of the Writ unless Sunday and then the next day after and then to choose their Burgess for the Parliament The common Clerk of the then presiding Borough shall immediately after the Election return the Name of the Person so Elected to the Sheriff or Stewart of the Shire Scotland or Stewartry wherein such presiding Borough is And in case a vacancy shall happen in time of Parliament by the decease or legal incapacity of any Member a new Member shall be Elected in his Room conformable to the method herein before appointed and in case such Vacancy be of a Representative for any one of the said fourteen Classes or Districts for Royal Boroughs that Borough which presided at the Election of the deceased or disabled Member shall be the presiding Borough at such Election That from and after the Determination of this present Parliament 2 St. 12. Annae no Conveyance or Right whatsover whereupon Infeoffment is not taken and Seisin registred One Year before the Teste of the Writs for calling a New Parliament shall upon Objection made in that Behalf intitle the Person or Persons so Infeoft to Vote at that Election in any Shire or Stewartry in that Part of Great Britain called Scotland and in case any Election happen during the Continuance of a Parliament no Conveyance or Right whatsoevel whereupon Infeoffment is not taken One Year before the Date of the Warrant for making out a new Writ for such Election shall upon Objection made in that Behalf Scotland intitle the
Person or Persons so Infeost to Vote at that Election and that it shall be lawful for any of the Electors present suspecting any Person or Persons to have his or their Estates in Trust and for the Behoof of another to require the Praeses of the Meeting to tender the Oath in this Act contained to any Elector and the said Praeses is hereby impowered and required to administer the same In case such Elector refuse to Swear and also to subscribe the said Oath such Person or Persons shall not be capable of Voting at such Election Notwithstanding such Oath taken it shall be lawful to make such other Objections as are allowed by the Laws of Scotland against such Electors No Infeoffment taken upon any redeemable Right except proper Wadsetts Adjudications or Apprisings allowed by the Act of Parliament relateing to Elections in One thousand six hundred eighty one shall entitle the Persons so Infeoft to Vote at any Election in any Shire or Stewartry And no Person or Persons who have not been Enrolled and Voted at former Elections shall upon any Pretence whatsoever be Enrolled or admitted to Vote at any Election Scotland except he or they first produce a sufficient Right or Title to qualifie him or them to Vote at that Election to the satisfaction of the Freeholders formerly Enrolled or the Majority of them present and the returning Officers are hereby ordained to make their Returns of the Persons Elected by the Majority of the Freeholders enrolled and those admitted by them reserving always the Liberty of objecting against the Persons admitted to or excluded from the Roll as formerl The Right of Apparent Heirs in Voting at Elections by Virtue of their Predecessors Infeoffments and of Husbands by Virtue of their Wives Infeoffments reserved Any Conveyance or Right which by the Laws of Scotland is sufficient to qualify any Person to Vote in the Elections of Members of Parliament for Shires or Stewartries and whereupon Infeoffment is taken on or before the first Day of June in the Year of our Lord One thousand seven hundred and thirteen shall intitle the Person or Persons so Infeoft to Vote at the Elections of Members to serve in the next ensuing Parliament No Husband shall Vote at any ensuing Election by Virtue of their Wives Infeoffments Wales who are not Heiresses or have not Right to the Property of the Lands on account whereof such Vote shall be Claimed Ordained St. 23. H. 6. c. 15. Vide post c. That every Sheriff after the Delivery of any Writ of Election to him made shall make and deliver without Fraud a sufficient Precept under his Seal to every Mayor and Bailiff c. of the Cities and Boroughs within his County commanding them by his Precept if it be a City to choose by Citizens of the same City Citizens and in the same manner and form if it be a Borough to choose a Burgess by the Burgesses of the same to come to the Parliament Enacted St. 23 H. 8. c. 26. Wales c. That the Dominion of Wales shall be stand and continue for ever from henceforth Incorporated United and Annexed to and with the Realm of England and that all and singular Person and Persons born and to be born in the said Principality Country or Dominion of Wales shall have enjoy and inherit all and singular Freedoms Liberties Rights Privileges and Laws within this Realm and other the King's Dominions as other the King's Subjects naturally Born within the same have enjoy and inherit For all Parliaments to be holden and kept for this Realm Wales two Knights to be elected to the same Parliament for the Shire of Monmouth in the like Manner Form and Order as Knights and Burgesses be elected and chosen in all other Shires And that one Knight shall be Elect-for every of the Shires of Brecknock Radnor Montgomery and Denbigh and for every other Shire within Wales and for every Borough being a Shire-Town within Wales except the Shire Town of the County of Merioneth one Burgess and the Election to be in like Manner as Knights and Burgesses of the Parliament be Elected in other Shires That the Burgesses of all and every Cities Boroughs St. 35. H. 8 c. 11. and Towns in the twelve Shires within Wales and County of Monmouth not finding Burgesses for the Parliament themselves and contributary to Wages of Burgesses of such Shire-Towns shall be lawfully admonished by Proclamation or otherwise by the Mayors Bailiffs and other Head Officers of the said Towns or by one of them to come and give their Elections for the Electing of the said Burgesses at such Time and Place Lawful and Reasonable as shall be assigned for the same intent by the said Mayors Chester Bailiffs and other Head Officers of the said Shire-Towns or by one of them in which Elections the Burgesses shall have the like Voice and Authority to elect the Burgesses of every the said Shire-Towns in such Manner as the Burgesses of the said Shire-Towns have and use That the County Palatine of Chester shall have two Knights for the said County Palatine St. 34 35 H. 8. c. 13. Chester and likewise two Citizens to be Burgesses for the City of Chester the same Election to be made under like Manner and Form to all Intents Constructions and Purposes as is used within the County Palatine of Lancaster or any other County or City within this Realm That the County Palatine of Durham may have two Knights for the same County St. 25. c. 2. c. 9. Durham and the City of Durham two Citizens to be Burgesses for the same City for ever hereafter to serve in Parliament the same Election from time to time to be made in Manner following viz. The Elections of the Knights to serve for the said County Palatine to be made by the greater Number of the Freeholders of the said County Palatine that shall be present at such Elections as is used in other Counties and that the Election of the said Burgesses from Time to Time Vid. Post 190.191 shall be made by the Major part of the Mayor Aldermen and Freemen of the City which shall be present at such Election See also the Stat. 34 35 H. 8. c. 24. Cambridge concerning the Payment of the Wages of the Knights of the Shire for Cambridge The Form of the Abjuration as altered by Stat. 4 Ann. c. 8. and as the same is now to be taken I A. B. do truly and sincerely acknowledge profess testify and declare in my Conscience before God and the World That our Sovereign Lord King George the Second is lawful and rightful King of this Realm and all other His Majesty's Dominions and Countries thereunto belonging And I do solemnly and sincerely declare That I do believe in my Conscience that the Person pretended to be Prince of Wales during the Life of the late King James and since his Decease pretending to be and taking upon himself the Stile and Title of King of England by the Name
No Candidate who shall have in his own Name or in trust for him or his Benefit any new Officers or Place of Profit hereafter to be created or be a Commissioner or Sub-Commissioner Secretary or Receiver of Prizes Commissioner of the Armies Accounts Commissioner of the Sick and wounded Agent for any Regiment Commissioner for Wine Licences Governor or Deputy-Governor of any of the Plantations Commissioner in any out-Port or have a Pension from the Crown during Pleasure shall be capable of being elected or sitting c. as a Member who shall have in his own Name or in the Name of any Person or Persons in Trust for him or for his Benefit any new Office or Place of Profit whatsoever under the Crown which at any time hereafter shall be created or erected nor any Person who shall be a Commissioner or Sub-Commissioner of the Prizes Secretary or Receiver of the Prizes nor any Comptroller of the Accompts of the Army nor any Commissioner of Transports nor any Commissioner of the Sick and Wounded nor any Agent to any Regiment nor any Commissioner for Wine Licences nor any Governor nor Deputy-Governor of any of the Plantations nor any Commissioner of the Navy employed in any of the Out-Ports nor any Person having any Pension from the Crown during Pleasure shall be capeable of being Elected or of sitting or voting as a Member of the House of Commons If any Person being chosen a Member of the House of Commons shall accept of any Office of Profit from the Crown during such time as he shall continue a Member his Election shall be Members chosen accepting any Office of Profit from the Crown while they continue Members their Election void and a new Writ to issue but capable of being again Elected and is hereby declared to be Void and a new Writ shall issue for a new Election as if such Person so accepting was naturally Dead Nevertheless such Person shall be capable of being again Elected as if his Place had not become Void as aforesaid No greater Number of Commissioners shall be made for the Execution of any Office than have been employed in the Execution of any such Office from the first Day of the Session Nothing herein contained shall extend to any Member of the House of Commons being an Officer in Her Majesty's Navy or Army Members being Officers in the Navy or Army receiving any New Commission in either not incapacitated who shall receive any new or other Commission in the Navy or Army respectively If any Person hereby disabled or declared to be incapable to Sit or Vote in Parliament Members hereby incapacitated if returned their Election void and presuming to sit and vote forfeit 500 l. to any that will sue by Action of Debt c. wherin no Essoin c and but one Imparlance shall nevertheless be returned as a Member to serve for any County City Town or Cinque-Port in any such Parliament such Election and Return are declared to be Void to all Intents and Purposes and if any Person disabled or declared incapable by this Act to be Elected shall presume to sit or vote as a Member of the House of Commons in any Parliament such Person so sitting or voting shall forfeit 500 l. to be recovered by such Person as shall Sue by Action of Debt Bill Plaint or Information wherein no Essoign Protection or Wager of Law shall be allowed and only one Imparlance Forty five shall be the Number of the Representatives of Scotland in the House of Commons of the Parliament of Great-Britain G. Britain Stat. 5 Annae c. 8. Every Member of the House of Commons of the Parliament of Great-Britain until the Parliament of Great-Britain shall otherwise direct shall take the respective Oaths appointed to be taken instead of the Oaths of Allegiance and Supremacy The Union Act. by an Act of Parliament made in England in the First Year of the Reign of the late King William and Queen Mary The new Oaths of Allegiance and Supremacy And make subscribe and audibly repeat the Declaration mentioned in an Act of Parliament made in England in the Thirtieth Year of the Reign of King Charles the Second The Test and shall take and subscribe the Oath mentioned in an Act of Parliament made in England in the First Year of Her Majesty's Reign The Abjuration At such time and in such manner as the Members of both Houses of Parliament of England are by the said respective Acts directed to take make and subscribe the same upon the Penalties and Disabilities in the said respective Acts contained And it is declared and agreed that these Words This Realm The Crown of this Realm and the Queen of this Realm mentioned in the Oaths and Declaration contained in the aforesaid Acts which were intended to signify the Crown and Realm of England shall be understood of the Crown and Realm of Great-Britain and that in that Sense the said Oaths and Declaration be taken and subscribed by the Members of the Parliament of Great Britain None shall be capable to be elected a Representative for any Shire or Borough of Scotland but such as are twenty one Years of Age complete None capable to be elected for any Shire or Borough of Scotland under 21 Years nor unless a Protestant Papists and such as refuse the Formula excluded Like Incapacity on Candidates not at this Time capable by the Laws of Scotland Stat. 6. An. c. 7. and Protestant excluding all Papists or such who being suspect of Popery refuse to swear and subscribe the Formula contained in the third Act made in the 8th and 9th Sessions of King William's Parliament in Scotland nor shall be capable to be elected to represent a Shire or Burgh in the Parliament of Great Britain for Scotland except such as were at the Time of passing this Act capable by the Laws of Scotland to be elected as Commissioners for Shires or Boroughs to the Parliament of Scotland A like Clause for incapacitating Persons to be elected c. Members of Parliament and likewise for incapacitating Members of Parliament with like Restrictions Exceptions and Penalties throughout the united Kingdom as are contained in the Statute 4 5 Annae c. 8. relating to Candidates and Members for the Parliament of England And further Candidates disabled to be elected or Members to sit c. in the Parliament of England under like Disabilities as to any Parliament of Great Britain That every Person disabled to be elected or to sit or vote in the House of Commons of any Parliament of England shall be disabled to be elected or to sit or vote in the House of Commons of any Parliament of Great Britain Except the present Commissioners for disposing the Equivalent by the present or any other Commission That every Person who shall refuse to take the Oath of Abjuration St. 6 Ann. c. 23. Candidates or others may require the Sheriff President of the Meeting c. on the Poll at any Election of Members in
is chosen Co. 12.115 Vid. Towns 175 Vid. Sir S. d'Ewe's Jour passim Elsyng 153 Vid. Town 175. Vide Sir S. d'Ewe's Jeur. passim he in his Place where he first shall sit down shall disable himself and shall pray That they would proceed to a new Election When it appeareth who is chosen after a good Pawse he standeth up and sheweth what Abilities are required in a Speaker and that there are divers among them well furnish'd with such Qualities c. disableth himself and prayeth a new Choice to be made which is commonly answered with a full Consent of Voices upon his Name If the House generally give a Testimony of their Approbation Elsyng 153 4 Inst 8. Vid. Town 175. Vide Sir Simon d'Ewe's Jour passim two of the Members which for the most Part ware of the Council or chief Officers of the Court going to the Gentleman named and agreed to be Speaker take him from his Place and lead him unto the Chair Elsying says take him by the Arms and lead him to the Chair where being set they return to their Places After a while he riseth and uncover'd Elsyng 153 with humble Thanks for their good Opinion of him promiseth his willing Endeavours to do them Service After he is put into the Chair Co 12.115.4 Inst 8. then he shall pray them that with their Favors he may disable himself to the King that so their Expectations may not be deceived See Bohun ut Supra Then some and commonly he that first spake puts them in mind of the Day to present him c. Elsyng 153. Vid. Town 175. Sir Simon d'Ewes Jour passim So it was done by Sir William Knowls the Controller in the 43 Eliz. And the next Day Co. 12.115 Rush Coll. 480. Smyth's Common-wealth 80. or 2 or 3 Days after the Commons shall present the Speaker in the Upper House to the King where he shall disable himself again to the King and in most humble manner shall intreat the King to command them to choose a more sufficient Man Vide ante 265. aliter At the Day appointed Elsyng 156 Vid. Towns 175. his Majesty sitting on his Royal Throne and the Lords all in their Robes the Commons are called in who being come the Speaker is brought between two of them with low Obeysance to the Bar and so presented at the Bar to his Majesty The Speaker having made his Excuse the Lord Chancellor confers with the King and then telleth him That his Majesty doth approve the Commons Choice and will not allow of his Excuse Then the Speaker proceeds to his Speech But anciently he made first a Protestation as you may read in Elsyng 159 160. After he is allowed by the King Co. 12.115 Vide Rush Coll. 117. Vi. Smyths Common-wealth 80. Elsyng 164 then he shall make an Oration and in the Conclusion shall pray the four usual Petitions The Speaker's Speech is what it pleaseth himself having no Direction at all from the Commons touching the same making Petition to the King on behalf of the Commons some in general Words for all their ancient Priviledges and some in particular The Protestation of the Speaker consists of three Parts 4 Inst 8. Vi. Towns Coll. 4. 54 Rush Coll. 424. First That the Commons in this Parliament may have free Speech Vide Elsyng 164. as by Right and of Custom they have used and all their ancient and just Priviledges and Liberties allow'd to them Secondly That in any Thing he shall deliver in the Name of the Commons if he shall commit any Error no Fault may be arrected to the Commons and that he may resort again to the Commons for declaration of their true Intent and that his Error may be pardoned Thirdly That as often as necessity for his Majesties Service and the Good of the Commonwealth shall require he may by Direction of the House of Commons have Access to his Royal Person Some add a Fourth Modus tenend Parl. 35. That they may have Power to Correct any of their own Members that are Offenders And some make a Fifth Id 62. That the Members their Servants Chattels and Goods necessary may be free from all Arrests Tho' the Speaker does upon his being approv'd of by the King make it his humble Petition to have Liberty of Speech allow'd the Commons Sir R. Atkin's Argument c. 33. from whence Dr. Heylin and Sir Robert Filmer and others infer That the Commons injoy that Liberty by the King's Grace and Favour yet they are clearly answered by the words that accompany that humble Petition he prays That they may be allowed that Freedom as of Right and Custom they have used and all their ancient and just Priviledges and Liberties So that this from the Speaker is a Petition of Right The Speaker having ended his Oration Eisyng 165 the Lord Chancellor confers again with the King and makes Answer thereunto in his Majesties Name granting his Requests c. That humble and modest way of the Peoples addressing to their Sovereign Sir R. Atkin's Argument 33. either for the making Laws which has been very ancient or for granting Priviledges by the Speaker of the Commons shews great Reverence and becomes the Majesty of the Prince so to be addressed to but let it not be made an Argument that either the Laws thereupon made or the Priviledges so allow'd are precarious and merely of Favour or may be refused them of Right The Oration being answered by the Lord Chancellor Co. 12 115. 4 Inst 10. and his Petitions allow'd the Speaker and the Commons shall depart to the House of Commons where the Speaker in the Chair shall request the Commons That inasmuch as they have chosen him for their Mouth they would assist him and favourably accept his Proceedings which do proceed out of unfeign'd and sincere Heart to do them service The first Business in the House is ordinarily to read a Bill that was not pass'd in the last Parliament preceeding or some new Bill as in that of 10 Jac. 1. Scobel 5. Vide Sir Sir Simon d'Ewes Jour 43 44. But on that Day before that was done there was a Motion made for Priviledge of Sir Thomas Shirley who was chosen a Member to serve in that Parliament but detained by an Arrest Upon which a Habeas Corpus was awarded and the Serjeant that Arrested him and his Yeoman sent for and a Committee for Elections and Priviledges chosen See the Form and Manner of Electing Paul Foley Esq to be Speaker Bohun's Collection of Debates p. 350 to 354 after the Censure of Sir John Trevor for a High Crime and Misdemeanor in receiving a Gratuity or Bribe of 1000 Guineas of the City of London on passing the Orphans Bill CHAP. XIV Business of the Speaker THE Mace is not carried before the Speaker Eisyng 153 until his Return being presented to the King and allow'd of The speaker sits in a Chair placed somewhat high Modus tenend Parl. 36. Smith 's Common-wealth 84. to be seen
disturb the House shall pay the like Forfeiture And it is further ordered that the Business then in Agitation being ended no new Motion of any new Matters shall be made without leave of the House 5 Dec. 1640. Id. 84. Ordered that no Bills have their second Reading but between Nine and Twelve 10 Dec. 1640. Id. 92. Declared for a constant Rule that those that give their Votes for the Preservation of the Orders of the House shou'd stay in and those that give their Votes otherwise to the introducing of any new Matter or any Alteration should go out 8 Sept. 1641. Id. 392. See how far an Order of this House is binding In March 1627. Rush Coll. vol. 1.513 Resolved that is the ancient and undubitable Right of every Freeman that he hath a full and absolute Property in his Goods and Estate that no Tax Tallage Loan Benevolences or other like Charge ought to be commanded or levied by the King or any of his Ministers without common Consent by Act of Parliament March 1627. Id. 513. Resolved that no Freeman ought to be detained or kept in Prison or otherwise restrained by the Command of the King or Privy-Council or any other unless some Cause of the Commitment Detainer or Restraint be expressed for which by Law he ought to be committed detained or restrained Resolv'd Id. 513. that the Writ of HabeasCorpus may not be Detain'd Deny'd but ought to be granted to every Man that is committed or detained in Prison or otherwise restrained tho' it be by the Command of the King the Privy-Council or any other he praying the same Resolved that if a Freeman be committed or detained in Prison or otherwise restrained by Command of the King the Privy-Council or any other no Cause of such Commitment Detainer or Restraint being expressed for which by Law he ought to be committed detained or restrained and the same be returned upon a Habeas Corpus granted for the said Party then he ought to be delivered or bailed 2 April 1628. Resolved Id. 523. that no Freeman ought to be confined by any Command from the King or Privy-Council or any other unless it be by Act of Parliament or by other due Course or Warrant of Law King James I. having in 1621. Rapin Vol. 2. No. 54. p. 208.209 for some Words spoken by him in the House it occasioned a Remonstrance of the Commons to the King therein complaining of Breach of Privilege and asserting their Liberty of Speech and Debate to be their antient and undoubted Right and Inheritance receiv'd from their Ancestors c. This they sent to the King by twelve Members at the Head of whom they affectedly set Sir R. Weston a Privy-Counsellor one whom they conceiv'd had incens'd the K. against them who were receiv'd very roughly and their Remonstrance rejected But some Days after the K. sends 'em a long Answer in Writing wherein towards the Conclusion he objects against the stiling their Privileges Id. p. 211. their antient and undoubted Right and Inheritance and wishes they had said i. e. commands 'em to acknowledge that their Privileges were derived from the Grace and Permission of him and his Ancestors The House on reading this Answer plainly perceiv'd the King's Aims The Commons Protestation in Vindication of their Privileges Ibid. p. 211. 212. c. and knowing the Parl. was going to be prorogued or dissolv'd drew up a Protestation in Order to vindicate their Privileges viz. The Commons now assembled in Parl. being justly occasion'd thereunto concerning sundry Liberties Franchises and Privileges of Parliament amongst others here mentioned do make this Protestation following That the Liberties Franchises Privileges and Jurisdiction of Parliament are the antient and undoubted Birth-right and Inheritance of the Subjects of England and that the arduous and urgent Affairs concerning the King the State and the Defence of the Realm and of the Church of England and the Maintenance and making of Laws and Redress of Mischiefs and Grievances which happen daily within this Realm are proper Subjects and Matter of Counsel and Debate in Parliament And that in the handling debating and proceeding in those Businesses every Member of the House of Parliament hath and of Right ought to have Freedom of Speech to propound treat reason and bring to Conclusion the same and that the Commons in Parliament have like Liberty and Freedom to treat of these Matters in such Order as in their Judgment shall seem fittest See of the Terms Parliament and Prerogative Id. p. 213. and that every Member of the said House hath like Freedom from all Impeachment Imprisonment and Molestation other than by Censure of the House it self for or concerning any speaking reasoning or declaring of any Matter or Matters touching the Parliament or Parliament-Business and that if any of the Members be complained of and questioned for any Thing said or done in Parliament the same is to be shewed to the King by the Advice and Assent of the Commons assembled in Parliament before the King give Credence to any private Information But the K. being inform'd of this Protestation call'd a Council and sending for the Commons Journal in Presence of the Judges c. with his own Hands tore it out of the Journal and in a few Days after dissolved the Parliament but this did not deter the Commons from insisting on their Claim And in his Son's Reign it was asserted with a Witness and is now confirm'd by the Claim of Right and other Statutes Mar. 12. 1700. the House Journal Dom. Com. on a Report of that Part of the K's Speech which related to the Hanover Succession agreed with the Committee in these Resolves viz. 1. That all Things relating to the well governing of this Kingdom which are properly cognizable in the P. Council shall be transacted there and all Resolutions taken thereupon shall be sign'd by the P. C. 2. That no Person whatsoever that is not a Native of England Scotland or Ireland or of the Dominions thereunto belonging or who is not born of English Parents beyond the Seas altho such Person be naturaliz'd or made a Denizen shall be capable to be of the P. C. or a Member of either H. of P. or to enjoy any Office of Place or Trust either Civil or Military P. Council 3. That no such Person c. shall be capable of any Grant of Lands Tenements or Hereditaments from the Crown to himself or any other in Trust for him 4. That upon the further Limitation of the Crown in Case the same shall come to any Person not being a Native of this Kingdom of England this Nation be not oblig'd to engage in any War for the Defence of any Dominions or Territories not belonging to the Crown of England without the Consent of Parliament 5. That whoever shall hereafter come to the Possession of this Crown shall join in Communion with the Church by Law establish'd 6. That no Pardon shall be pleaded to any Impeachment in Parliament 7. That
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
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
offered to the House till the Leave of the House be desired and the Substance of such Bill made known either by Motion or Petition It hath at some Times been ordered Hakewel 135. That every one that preferreth a private Bill should pay five Pounds to the Poor as in 43 Eliz. towards the End of the Parliament when they were troubled with much Business but it holdeth not in other Parliaments Scobel 41. Nevertheless the Speaker had Liberty to call for a private Bill to be read every Morning and usually the Morning is spent in the first Reading of Bills untill the House grow full If any publick Bill be tendered Ibid. the Person who tenders the Bill must first open the Matter of the Bill to the House and offer the Reasons for admitting thereof and thereupon the House will either admit or deny it 7 Martii 1606. Mr. Id. 46. Hadley being assigned of a Committee to confer with the Lords desired to be spared he being in Opinion against the Matter itself And it was conceived for a Rule That no Man was to be imployed in any Matter that had declared himself against it and the Question being put it was resolved Mr. Hadley was not to be employed Presidents reported by Mr. Pryn 28 Jan. 1666. about the Method of Proceeding upon the Impeachment of the Lord Mordant 28 May 1624. In the Lords Journal Council to be allowed Impeachment which is entered in haec verba and allows Council in all Cases 1 2 Car. 1. A great Dispute if the Earl of Bristol impeached for High Treason should be allowed Council The Lords then stood on the Order above recited The King objected to that Order that the Judges and his Council had not assented thereto yet the King consented to avoid being thought rigorous that the Earl of Bristol should be allowed Council so it were not drawn into Precedent Council was allowed to Sir George Bynion Council allowed to Garney Lord Mayor of London impeached for High Crimes and Misdemeanors 5 11 July 1642. and 1 2 August Sept. 30. 1645. An Impeachment of of the Earl of Strafford H. Poulton c. for striking Sir Arthur Haselrig Upon all which the House did acquiesce in the Lord Mordant's having Council As to his sitting within the Bar The Lords insisted on it on the Precedents of 18 Jac. the Bishop of Landass and 1645. the Lord Stamford Seignor Coke Litt. Rep. 330. Elect. 1 Car. 1. Viscount de Bucks Chivaler de Norsolk Comment que ill abstein de la maison uncore il avoit privilege versus la Dame Cleer The Privileges of Parliament consist in Three Things May 's Hist Parl. l. 3. p. 27 Sir Robert Atkin's Power of Parliaments 36. Rush Col. Vol. 1.663 First as they are a Council to advise Secondly a Court to judge Thirdly a Representative Body of the Realm to make repeal or alter Laws Upon some Questions propounded to the Judges Anno 1629. 5 Car. 1. all the Judges agreed That regularly a Parliament-Man cannot be compelled out of Parliament to answer Things done in Parliament in a parliamentary Course Their Rights and Privileges are the Birth-right and Inheritance not only of themselves Rush Col. Vol. 3. p. 1. 458. but of the whole Kingdom wherein every Subject is interested The Violating of the Privileges of Parliament Rush Col. Vol. 3. p. 1. 475. Rush Col. Vol. 1. p. 537. is the Overthrow of Parliament The Privileges of the House says Sir Edward Cook are the Heart-Strings of the Commonwealth and therefore if the King desires a Nonrecess I desire that this may be enter'd That it is done ex rogatu Regis The King viz. Charles II. Journ of House of Commons in his Letter to the King of Spain declares That the Murder of his Father was not the Act of the Parliament or Kingdom of England but of a little Company in the Kingdom 23 Aug. 1660. Expulsion from the House for Words Thursday in the Morning 27 May Diurnal Occurrences of Parliament from Nov. 3. 1640. to Nov. 3. 1641. p. 11â— 1641. Mr. Tayler a Barrister and Burgess for Old Windsor was brought upon his Knees in the House of Commons for speaking some Words in Disparagement of the whole House about the Earl of Strafford's Death saying They had committed Murder with the Sword of Justice and that he would not for a World have so much Blood lie on his Couscience as did on theirs for that Sentence Which Words being proved against him by the Mayor of Windsor to whom he spoke them and some others he was thereupon expelled the House and voted uncapable of ever being a Parliament Man committed to the Tower during Pleasure to be carried down to Windsor there to make Recantation for those Words and to return back to the House of Commons to receive further Sentence And it was ordered That a Writ should presently issue out for a new Election is his room The 2d of June he petitioned to be restored upon his Submission Id. p. 116. Id. the where Rush Col. part 3. vol. 1. fo 278 280. But his Petition would not be hearkened unto A Member sent to the Tower for discovering what was said in the House in a former Parliament Mr. Francis Nevill Rush Col. part 3. vol. 1. fo 169. of Yorkshire a Member of the House was February 4. 1640. 16 Car. 1. questioned for Breach of Privileges in the precedent Parliament which met 13 Apr. 1640. by discovering to the King and Council what Words some Members did let fall in their Debate in that House Whereupon Mr. Bellasis Knight for Yorkshire and Sir John Hotham were committed by the Council-Board And Mr. Nevill being brought to the Bar was by the House committed to the Tower of London and Sir William Savill touching the same Matter was ordered to be sent for in Custody CHAP. XXIII Privilege of Parliament THE Privilege of Tenants in Ancient Demense Sir R. Atkin's Argument 18. Vide Coke 9 Rep. in Pref. must be as ancient as their Tenure and Service for their Privilege comes by Reason of their Service and their Service is known by all to be before the Conquest in the Time of Edward the Confessor and in the Time of the Conqueror Every Man must take Notice of all the Members of the House returned of Record 4 Inst 23.24 at his Peril Otherwise it is of the Servant of any of the Members of the House Id. 24. A Member of Parliament shall have Privilege of Parliament Id. 42. Hakewel 62. not only for his Servants but for his Horses c. or other Goods distrainable The Privilege is due eundo Scobel 88. morando redeundo for the Persons of Members and their necessary Servants and in some Cases for their Goods and Estates also during the Time For their own Persons they have been privileged from Suits Ibid. Arrests Imprisonments Attendance on Trials Serving on Juries and the like yea from being summoned or called to attend upon any Suit in other Courts by Subpoena
as were the Aldermen of Counties which we call Earls and the Heretoges of Counties usually rendred Duces Ibid. 204. 205. because they headed the People in War and were then as our Lords Lieutenants but of far greater Authority But That they also comprehended other Temporal Magistrates as also the Bishops and Rulers of the Church for that it appears those Words Magnates Seniores or Senatores included the chief Rulers Magistrates and Officers of the People in all Affairs Civil Military and Ecclesiastic and it appears That these generally constituted the Wittenagemote or Saxon Parliament Indeed on extraordinary Occasions See Saxon Chron. An. 1055. And the Beadmanealre Witenagemote i. e. Et indictus fuit omnium Procerum Conventus before Mid-Lent This included the Commons and was by Reason of the extraordinary Business then there transacted the Commons i. e. their lesser Thanes or Lords of Manors as also the Representatives of Cities or Burros did in Person appear there likewise But if we rightly consider the Model of the Saxon Government we shall find That except in such extraordinary Cases it would be a vain and fruitless Thing for the Commons to appear in Person at all their Assemblies of the Magnates Regni seeing those Magnates were in Truth the Peoples ordinary Representatives being elected and fully instructed by the Commons about such Affairs as related to them For the Constitution of the Saxon Government was such as made all the lesser Assemblies of the People for the Election of Magistrates and Distribution of Justice to have a Connection with and Dependance on some higher and more honourable Convention Wilkins ut supra Lambard ut supra to whom there lay a Representation and Appeal from the inferior Convention in such a Manner as That every inferior legal Convention was as it were a lesser Parliament which had some other superior Parliament to appeal to So the higher Assemblies had the Inspection and Controul of what was transacted in the next subordinate Conventions And hence it appears Spelman 540. That the Saxon County-Courts the Hundred-Courts or Wapentakes and even the Court-Barons or Manor-Courts were as much Parliamentary Assemblies within their respective Precincts and Jurisdictions as the Wittenagemote or Assembly of Great Men was for the whole Kingdom Thus in ordinary Cases there was no Occasion to apply to the superior Parliament See Mirror cap. 5. sect 1. Parliamts to be held at London twice yearly c. i. e. Whether the King summon'd 'em or not and as Sadler p. 50. Licet Rex sit absens c. Note the Inferior Courts were held 12 Times yearly on 〈◊〉 Days Notice but not the Superior Wilkins Sax LL. 205 c 2 when the inserior Parliament could and usually did provide a Remedy But there are two Things especially remarkable in the Oeconomy or Connection of the Saxon Plan of Government which will give us great Light into the Nature of their Folkmotes and Wittenagemotes or Parliaments viz. 1st That all their Folkmotes or County Assemblies being generally held twice yearly at certain particular Places and on certain stated Days or Times in the Year there was no Occasion for any special Notice to be given of or any Summons to those Assemblies no more than for the Terms at this Day Every Freeman whose Duty it was attended there in Person or by Representation and that under a Mulct or Penalty as may be seen in the Saxon Laws relating to this Matter Thus the Free-Tenants of Manors Spel. Glos in verbis Manor Turnus Comitatus c. by their Lord or Steward the Burroholders by the Head-Burros and the Freemen in each Tything by their Tienmantale or Representative attended at the Hundred Courts and those of the Hundred attended at the County Courts by their Hundreders c. And those of the County as Earls and Bishops of the respective Counties attended the Witenagemote in this Manner viz. The Courts of Manors and Tythings always ended before the Wapentacks or Hundred Courts began and these ended just before the Folkmotes or County Courts began and these last just before the ordinary Witenagemote or Grand Parliamentary Assembly began By this Method See 32d Law Ed. Conf. a certain Connection and Dependance of all inserior Courts on the next Superior was established so that there lay an easy Transition by Appeal from the Inferior to the next superior Court and lastly To the Conventio Magnatum or Supream Assembly 2dly Another observable is That all these Courts were so held twice yearly for the free Election of Magistrates and the free Distribution of Justice within their respective Precincts To which End all the inferior Courts were held about the End of September for electing their Magistrates and Officers as they still are in London and some other Cities and the other half yearly Assembly for Distribution of Justice was usually about the End of March yet so that all was over before the Wittenagemote See Wilkins LL. Saxon. p. c. 1. Purif 〈◊〉 M. uno 〈◊〉 eodem Die per Totum Regnum or Grand Assembly was held which by an express Law was always to commence The first on the Calends of October for confirming or constituting all the Aldermen or Earls or Hetetoges or Lord Lieutenants of the several Counties as also of all the other Great Officers of the Kingdom and the other about the Calends of May for distributing of Justice c. N. B. For by the Constitution of the Saxon Government no Officer either Civil or Military or even Ecclesiastical could be invested in his Office or Exercise any Jurisdiction or Authority over Freemen without the free Election and Consent of those Freemen over whom he was to exercise such Authority and tis for this Reason more especially That the People of England are denominated Free for that by the antient Laws and Constitution of the Kingdom they had this just and natural Right viz. The free Election of their Magistrates and Governors without which our Ancestors thought all other Liberties were but a Species of Bondage For of what Use can Liberty be to him whose Person or Estate is subject to Officers c. set over him without his own Consent This Freedom of Election of Magistrates c. Civil and Military under the Saxon Government fully appears thro-out the whole Body of their Laws especially in the 35th Law of Edward the Confessor which provides See Spel. Gloss in verbo Vicecom p. 555. That all Sheriffs or Earls and all Heretokes or Lords Lieutenants of Counties shall be elected in pleno Folkmote i. e. by the Freeholders in a general County Assembly or Parliament And that their Practice was therein pursuant to the Law Sax. Chr. sub Anno 1064. appears from the Case of Tosty Earl of Northumberland for says the Saxon Chronicle That Earl misbehaving himself in his Office the People of that County deposed him from being their Earl and proceeded to elect Morkar the Son of Elfgar LL. Inae c. 8. 36. LL. Edgari c. 3.
LL. Canuti c. 13. 14. into his Place Which Power of deposing Earls and other Officers appears to have been vested in their Folkmotes by express Provision of divers Laws both of the Saxon and Danish Kings I confess in the Case of Earl Tosty Sax. Chr. p. 171. tis said That after the People had so elected Morker to be their Earl they certified their Election to the King and intreated his Assent thereto to which the King yielded and on the Vigils of Simon and Jude sent them a Confirmation or Renewal of the Laws of King Canute i. e. That for deposing Earls c. This shews That tho the King had the Power of confirming the Earl in his Office yet he could not of himself appoint any Earl over the People without their own free Election and Consent in a Folkmote or County Parliament Now Vide Edv. Cons 32. 35. as all Titles and Dignities in the Saxon Plan of Government had both Officium and Benesicium annex'd thereto so there were divers previous Qualifications necessary to enable the Persons to be elected to such Dignity or Office Thus in Order to be a greater Thanes-worthy Qualifications and Elections of Peers c. or worthy to be elected one of the greater Thanes i. e. Lord of a Hundred he was to have such an Estate and to be an Earl or Alderman's-worthy or worthy to be elected an Earl or Alderman of a County he was to have such an Estate with other Qualifications respecting each Office So that three Things at least ought to concur in constituting an Alderman or Earl of a County as also of a greater Thane or Lord of a Hundred both which with the Bishops then made up the Body of their ordinary Folkmotes and Witenagemotes viz. 1st He was to have an Estate in Lands with other Qualifications Secondly The Election and Consent of such Freemen over whom he was to preside And thirdly The Royal Assent or Confirmation usually in Parliament And further as all the Magnates Regni Who ordinarily were Representatives of the People That Bishops were elected by the People even after the Conquest See Sadlers Rigts of the Kingdom p. 1178. 133. 134. 140. c. and all other Officers and Magistrates whether Civil or Military and even Ecclesiastical as Bishops c. were in those Times elected to their respective Offices by the Persons over whom they were to preside so they were liable for Misbehaviour in their Offices not only to a Deprivation but also to be otherwise censured and punished in their Folkmotes and other Conventions and consequently were under the strictest Guard to keep to their Duty and perform their Trust both in their Folkmotes or County Parliaments as also in the Grand Witenagemote or Supream Parliament And tho such Officer presided in the former as their Prince or King yet in the latter he was but their Representative And thus the Magnates Regni Nota. or Lords of Parliament were originally and ordinarily no other than the Representatives of the Commons or Freemen Tis true in extraordinary Cases Spel. Glos verbo Subsidium as in Granting of New Ayds or Taxes as Danegelt c. the Commons likewise attended in Parliament either in Person or by their Deputies specially authorized but such Ayds and Taxes were then very rare See Mr. Madox's Hist Exchequer c. 7. 8 9 c. the Crown in those Times being abundantly supply'd in ordinary Cases by its Rents and Revenues both certain and casual as Fines Forfeitures Escheats the third Part of the Profits of all Leets Hundreds Counties and other Courts Ayds to make the King's eldest Son a Knight Vide Paulus Manut. De Legihus Romanis to marry his eldest Daughter c. all which I take to be of a British or Roman Original Besides which if we consider the vast Profits and Revenues then arising from the antient Demesne and other Crown Lands we may easily Grant That the King had rarely any Occasion for extraordinary Ayds For the Tenants of those Lands Spel. Glos verbo Villenagium holding the same in Villenage and they themselves being esteemed as the Villani Regis the King could not only Tax 'em at his Pleasure but also appoint 'em what Officers and Magistrates and even out 'em of their Possessions as he pleased and therefore Tenants in antient Demesne while they continued such 〈◊〉 were never esteemed Freemen they never served on Juries never voted for Members of Parliament nor ever contributed to their Expences In short They were thought to be so far under the Power and Influence of the Crown as not to be in any wise entrusted with the Peoples Liberties Sir H. Spelman in his Glossary In verbo Subsidium p. 527. says thus I find not that the antient Saxon Kings had any Subsidies c. But they had many Customs whereby they levyed Money of the People or Personal Services towards building repairing of Cities Castles Bridges Military Expeditions c. call'd Burgbote Bridgebote Herefare Heregeld c. But when the Danes oppress'd the Land King Egelrede or Ethelred Anno 1007 yielded in a Parliament to pay them 10000 l. which was afterwards encreased to 36000 l. then to 113000 l. and lastly Note this Assessment was doubtless with Consent of the Commons Q. If Church-men were not Procuratores aut Participes Danici Subsidii to a yearly Tax or Tribute of 48000 l. This was called Danegeld and for raising it every Hyde or Plough of Land was cessed at 12 d. yearly the Church-Lands excepted which therefore was called Hydage and Carvage which Name afterwards remained upon all Subsidies and Taxes imposed upon Lands for sometimes it was imposed upon Cattle and then twas called Horngled But tho' the Saxon Witenagemotes were so ordinarily held per Regem cum Magnatibus Regni Yet it is very Evident that when any matters were to be there Transacted which in general concerned the Body of the Freemen of the Kingdom in such cases the Rule was Quod tangit omnes tractetur ab omnibus and nothing could be determined in their Parliaments relating to Peace or War new Ayds Taxes or other publick charges on the People without their Common Assent either in Person or by special Representatives Tis true See Madox ut ante the Saxon Kings had very rarely any such Ayds Taxes or Subsidies as are granted to our Kings at this Day The vast Profits arising to the Crown in those Days consisted in the Rents and Produce of their antient Demeasn Lands the third Part of the Profits of all the County and other Courts in the Kingdom besides the many other Incomes on Fines Forfeitures and other Penalties and other Revenues certain and casual made it seldom necessary to Tax the People by a Parliament They had also says Spelman many Customs In verbo Subsidium whereby they levied Money of the People or exacted their Personal Services towards the Building and Repairing of Cities Castles and Bridges for Military Expeditions c. which they called Burg-bote
Commons of England began in some Measure to be Restored to their antient Rights i. e. the Election of their Officers and Magistrates Civil and Ecclesiastical and their being Represented in Parliament 'Tis True W. 1. Soon after his acquisition of the Kingdom Swore to the Observation of the Laws of Edward the Confessor but added a very odd Limitation to the Oath viz. with such amendments i. e. alterations as he with advice of his Council should make therein This shewed he had little regard to those Laws and the Rather for that the Observance of them would in a great Measure deprive him of Nominating the Officers and Governors of the Kingdom a tender Sore to a Prince that aims at arbitrary Power He therefore took upon him the Nomination and Disposition of all Offices and Dignities Sold and Distributed Earldoms and Baronies at pleasure and seems to have utterly deprived the People of their Right of Election of Magistrates and Representatives except for London without which no People can be esteemed Free and having afterwards settled his Revenue by the Record of Domesday Book he had thence forward no occasion for supplies in Parliament W. Rufus succeeded him on the like Foot and on his Coronation Swore the like Oath with the like Explanation i. e. to observe the Confessors Laws with such amendments i. e. alterations therein as had been made by his Father and H. 1. on his coming to the Throne Swore to the Observance of the same Laws with such alterations as had been made therein by his Father and Brother Hitherto the Yoak of the Norman Conquest and Tyranny had layn heavy on the Necks of the Commons of England but now their Day of Redemption seem'd to draw Nigh for in a few Years after this Robert the Eldest Son of W. 1. being return'd from the Holy Land and coming into England set up his claim to the Crown and made such a Party among the Norman Nobility here that King Henry was forced to throw himself into the Arms of the English and thereupon called a Parliament at London which seems to have been composed almost if not wholy of an English House of Commons The Speech made by that Prince at the Meeting of that Parliament is Recorded by Mat. Paris and does so remarkably discover the Restoration of the Rights of the Commons and the Renovation of the antient Constitution by granting the Original of our Magna Charta and other Liberties that I cannot forbear giving the Speech and its Introduction to the Reader both in Latin and in English viz. Magnatibus igitur Regni ob hoc Londonium Edicto Regio convocatis Rex Oratio Regis Henrici ad Anglos See Mat. Paris old Edicon p. 83. and in Watts p. 42. Henricus talibus alloquiis super Mel Favum Oleumque Mellitis Mollitis blandiens Dixit Vos Angligeni Amici sideles mei Indigenae ac Naturales Nostis veraci Fama referente qualiter Fratermeus Robertus electus et per Deum Vocatus est ad Regnum Hierosolymitauum feliciter Gubernandum et quam frontose illud infeliciter Refutaverit Merito propterea a Deo Reprobandus Nostis etiam in multis alijs Superbiam et ferocitatem illius et quia Vir bellicosus Pacis Impatiens est Vosque Scienter quasi contemptibiles et quos Desides vocat Glutones conculcare desiderat Ego vero Rex humilis pacificus Vos in Pace in antiquis Vestris Libertatibus prout crebrius jurejurando promisi gestio confovere et vestris inclinando Consilijs consultius ac Mitius more Mansueti Principis Sapienter Gubernare Et super his si provideritis Scripta subarata roborare et iteratis Juramentis praedicta certissime Confirmare Omnia Videlicet quae Sanctus Rex Edvarvardus Deo inspirante provide Sancivit inviolabiliter jubebo observari ut vos mecum fideliter Stantes Fratris mei immo et mei totius Regni Angliae Hostis cruentissimi Injurias potenter animose ac voluntarie propulsetis si enim Fortitudine Anglorum roborer inanes Normanorum Iras Nequaquam censeo formidandas The King having by his Royal Edict K. H. â— his Speech to his Eng. Parliam called the English great Men of the Kingdom to London for that intent harangued them with a most gracious Speech smoother than Oil and sweeter than Honey or the Honey-comb thus My belov'd and faithful Friends Englishmen You who are the true born Inhabitants It seems the Norman Nob. tho' Summon'd refused to attend H. Parliam and to have joined with Robert and natural Proprietors of this Kingdom You know what undeniable Truth is founded in the Report that my Brother Robert hath been Elected and by God call'd to the glorious Government of the Kingdom of Jerusalem and how shamefully he has rejected that call for which Cause he deserves to be abandoned by God You also know among many other his ill Qualities that he is of a proud and brutal Disposition and that being as it were nurs'd in War and Blood he is an utter stranger to Peace that he publickly Treats you as contemptible and calls you Slaves and Gluttons and that his whole aim is to Tyrannize over you But I a mild gentle and pacifick King desire to protect you in Peace and in the enjoyment of your antient Laws and Liberties as I have often Sworn to do and to be guided by your Counsels whereby I may Govern you with the more Prudence and Moderation as a Mild and a gentle Prince Nay more than this if you will provide a Charter I am ready to confirm and Establish thereby and on my renewed Oath inviolably observe all those good Laws which the holy King Edward being inspired by God did with Wisdom ordain That so you standing faithfully and couragecously by me we may powerfully resist and repell such injuries as may be attempted against us by this Brother of mine who is the bloody Enemy of you and of the whole Kingdom of England For let me be but assisted with the Courage of you Englishmen I shall not in the least fear the vain Threats of those upstart Normans From the foregoing Passage concurrent with other circumstances of those Times I conceive we may raise the following conclusions 1. LL. Ed. Conf. c. 33.35 c The Convention abovemention'd being Convoked Edicto Regio c. was one of those extraordinary Parliaments before mentioned met together to consult De arduis Negotijs Regni i. e. how to secure the Possession of the Crown and not one of those stated and ordinary Parliaments which by the Saxon constitution were to be held twice Yearly viz. about the beginning of May and beginning of October which ordinary Parliaments were afterwards by divers Statutes LL. Ed. gari c. 5. See 4. Inst so 9. 36. E. 3. c. 10. St. 4. E. 3. c. 14. reduced to once a Year certainly i. e. whether Summoned or not or oftener if need were i. e. if there was any occasion to call one by a special Summons
pro arduis Negotijs Regni 2. That tho' the Magnates Regni are only mentioned to be Summoned yet the Commons of England were therein included and indeed it is very Evident that the Words Magnates Regni or Nobiles Regni Selen Tie Hon. 603. 604. in the Language of those Times included both Lords and Commons when applyed to a National Assembly For as Mr. Selden observes the Word Nobilis in the Saxon Times denoted every Gentleman i. e. under Thanes or Knights c. So after the Conquest the Word Baronagium Camb. fo 137. Edit Lond. 1600. included the Commons as well as Peers and Mr. Cambden with others do consess Quod Sub Nomine Baronagij omnes Regni ordines continebantur Thus Rex Magnates Proceres are said to make the Stat. of Mortmain which was apparently made by the K. Lords and Commons 17 Johanis and the Magna Charta of K. John of which that of K. H. 1. is clearly prov'd to be the Foundation appears to have been made per Regem Barones Liberos homines totius Regni Mat. Par. Edit per Watts p. 38.45.51.166 alibi all which are by the Historians of those Times called Magnates Angliae See farther of the Import of the Word Magnates in Mat. Paris 3. M. Paris 10.6 40. That the Norman Nobility tho' Summoned resus'd to appear at this Parliament they being almost entirely devoted to Robert the King's Elder Brother and hence it is that we find the King's Speech is here Directed to English Men only and that too in opposition to the Normans in general on whom the King in the Conclusion very warmly Reflects in order to ingratiate himself the more with the English Commons of whom this Parliament seems to have been almost wholly composed The cause of the Normans defection seems to have been Vide ibid 42. for that King Henry having in the 2d year of his Reign Married Maude the Daughter of Margaret Q. of Scotland who was Edgar Aetheling's Sister and the direct lineal Heir of the English Blood Royal Mat. Par. 40. was so enamoured with her tanto ardentius exarsit in ipsius amorem that he very much favoured the English for her Sake whereupon the Normans raised a general Rebellion against him in favour of Robert and tho by the Intervention of Friends the difference between the two Brothers was Skinn'd over for the present yet we find the K. could never afterwards be heartily reconciled to the Norman Nobility tho' of his own Blood diverse of whom as Robert de Beleasmo Ib. 40 41. William Earl of Moreton and others he soon after Banished the Kingdom And it is very remarkable That in the Event of the several Contests about Robert's Right the English Commons became the Victors over the Norman Nobility first on behalf of W. Rufus in the Beginning of his Reign and now on the Behalf of K. H. 1. Vide ib. sub Anno 1089. And the Example of their former Valour might induce this King to gratify and caress them with those high Encomiums and Promises in his Speech Which Promises tho as the Historian asserts he afterwards impudenter violavit yet as to the granting a Charter for restoring the Confessor's Laws Ib. p. 42. doubtless the Parliament took him at his Word and this Charter I take to have been that very Charter which the same Historian observes to have been produced to King John Ib. p. 167. at the Rencounter of Runny-Mead and not that which is mentioned to have been granted by this King at his Coronation in which we find this ensnaring Stricture Mat. Par. 38.167 viz. Lagam Regis Edvardi vobis reddo cum illis emendationibus quibus Pater meus eam emendavit His Father having under Pretext of those Emendations utterly deprived the English of the Free Election of their Magistrates whereas tis evident from History That for some Years after this new Charter granted in this English Parliament the People were generally restored to the Right of electing their own Magistrates and Officers Civil Military and Ecclesiastical and this I take to be the grand Foundation of the Magna Charta of English Liberties i. e. as it gave Relaxation from Norman Tyranny and Slavery And this may teach us Dier 60 See Mirror c. 1. Sect 3. Bra. Flet. Lambards Archaion 5â— 239.245 Sir R. Atkyns p. 20.15 c. Vide Post c. 6. 7. That the Rights and Liberties of the Commons of England are neither so illegally begotten as by Rebellion nor of such tender Years as some imagine But if any Man is not convinced from what I have before produced touching the Origin of English Parliaments and the Antiquity of the House of Commons let him peruse the Authors cited in the Margin especially the Treatise writ by that learned Judge Sir Robert Atkyns on this very Subject Nor was this the first English Parliament held under this King Mat. Par. 37.39 2 Inst 15. Mat. Paris has given us a brief Account which other Authors confirm and enlarge That one Ranulph Saxon Chron. sub Anno 1099. p. 208.210 Flor. Wig. c. Mat. Par. 39. Bishop of Durham whom Mat. c. adorn with the sublime Titles of Vir pessimus corruptissimus Homo perversus ad omne scelus paratus Vir subacto ingenio prosunda nequitia c. was imprisoned c. by a Common-Council or Parliament of Englishmen The whole Passage runs thus Eo tempore Rex tenuit in Custodia Ranulphum Dunelmensem Episcopum hominem perversum ad omne scelus paratum Quem Frater Regis i. e. Rex Willielmus Episcopum fecerat Dunelm Regni Anglorum subversorem N. B. The Office of a Court Bishop Qui cum Regi jam dicto nimium esset familiaris constituerat eum Rex Procuratorem suum in Regno ut evelleret destrueret raperet et disperderet et omnia omnium Bona ad Fisci commodum comportaret Sed mortuo eodim Rege iniquo Henrico coronato de Communi Consilio Gentis Anglorum posuit Rex eum in vinculis c. Nor was the Concurrence of the Commons in Parliament requisite only to the Imprisonment or Exauctoration of Bishops Rights of the Kingdom p. 118.133.140 c. the same Assent seems as necessary and that too in a superior Degree as to their Election or Confirmation divers Instances of this appear in the Historians of those Times I shall select some to prove it then the Custom of England Scotland Wales Ireland France c. Anno 1113 Sax. Chr. p. 306. Ralph Bishop of Rochester was elected Archbishop of Canterbury by the King Annuente Plebe Clero Eadmer Hoveden this was done in Communi Consilio apud Windsore And I find about the same Time That another Ralph who had been ordained a Bishop in Scotland was rejected by all because not elected with the Consent of the People c. And notwithstanding his Consecration was forced to wander about and officiate as a Coadjutor to other Bishops About the Year 1120 Malmsb. one
is England of the Cities and Boroughs within his County reciting the said Writ commanding them by his Precept if it be a City to choose c. Citizens and in the same Manner if it be a Borough to choose Burgesses And every Sheriff at every Time that he doth contrary to this Knights Citizens or Burgesses elected not duly return'd the Sheriff acting contrary to have Action of Debt against him his Executors or Administrators for 100 l. with Costs wherein no Wager of Law c. or any other Statute for the Election of Knights Citizens and Burgesses before made shall forfeit and pay to every Person chosen Knight Citizen or Burgess in his County and not duly returned 100 l. whereof every Knight Citizen or Burgess so griev'd severally shall have his Action of Debt against the said Sheriff or his Executors or Administrators to demand and have the said 100 l. with his Costs spent And that the Defendant shall not wage his Law or have any Essoign And if any Mayor and Bailiffs The like Action given against Mayor or Bailiffs their Executors or Administrators for 40 l. Debt and Costs for returning others than such as are chosen Citizens and Burgesses by Citizens and Burgesses And no Wager of Law c. Such Knt. Citizen and Burgess to commence the Action within 3 Months after the Commencement of such Parliament and proceed without Fraud or Bailiffs or Bailiff where no Mayor is shall return others than those which be chosen c. he shall forfeit and pay to every Person hereafter chosen Citizen or Burgess and not returned 40 l. whereof every of the Citizens and Burgesses so grieved severally shall have his Action of Debt against every of the said Mayor and Bailiffs or Bailiffs or Bailiff where no Mayor is or against their Executors England Administrators to demand and have of every of them 40 l. with his Costs in this Case expended And that in such Action of Debt no Defendant shall wage his Law nor have any Essoign Provided that every Knight Citizen and Burgess in due Form chosen and not returned as asoresaid shall begin his said Action within three Months after the Parliament commenced and to proceed in the same Suit effectually without Fraud And if any Knight If any Knt. Citizen or Burgess return'd be put out c. 100 l. forfeited to the King by any Person put in his place and serving as such And a like Action against him c. for 100 l. Debt and Costs to the partygrieved to be commenced within 3 Mo. after the Commencement of Parliam No Wagers of Law c. And like Process as in Trespass at common Law Citizen or Burgess hereafter returned by the Sheriff in Manner asoresaid after such Return be by any Person put out and another put in his Place that such Person so put in the Place of him which is out if he take upon him to be Knight Citizen or Burgess at any Parliament shall forfeit to the King 100 l. and 100 l. to the Knight Citizen or Burgess so returned by the Sheriff and after put out And that the Knight Citizen or Burgess so put out shall have an Action of Debt of the same 100 l. against such Person put in his Place his Executors or Administrators England provided he begin his Suit within three Months after the Parliament commenced c. And that no Defendant in such Action shall wage his Law nor be essoigned And that such Process shall be in the Actions aforesaid as in a Writ of Trespass against the Peace at Common Law That the Knights of the Shires for the Parliament shall be notable Knights of the same Counties Knts. of the Shires be Knts. of the Counties they shall be elected for or Esquires or Gentlemen able to be Knts. and not Yeomen c. for the which they shall be chosen or otherwise such notable Esquires or Gentlemen born of the same Counties as shall be able to be Knights And no Man to be such Knight which standeth in the Degree of a Yeoman or under That no Knights of Shires Citizens St. 6 H. 8 c. 16. Knts. Citizens c. not to depart or be absent from Parliament without leave of the House to be entred in the Journal Burgesses and Barons of Cinque-Ports nor any of them that be elected to Parliament do depart from the said Parliament nor absent himself from the same till the said Parliament be fully finished ended or prorogued except he or they so departing have Licence of the Speaker and Commons in the said Parliament assembled England and the same Licence entred of Record in the Book of the Clerk of the Parliament appointed for the Commons House c. That the two Knights to be elected to Parliament for the Shire of Monmouth heretofore Part of Wales and the one Burgess for the Borough of Monmouth St. 27 H. 8. c. 26. The two Knts. and one Burgess for the Borough and County of Monmorth to have like Privilege c. as other Knights and Burgesses shall have like Dignity Pre-eminence and Privilege as other Knights and Burgesses of Parliament And that the Knight which shall be elected for the Shires of Brecknock And Knt. for each County and Burgess for each Shire-Town in Wales to have like Privileges c. Radnor Montgomery and Denbigh and for every other Shire within the Country or Dominion of Wales and for every other Borough being a Shire-Town within the same shall have like Dignity Pre-eminence and Privilege as other Knights of Parliament That the two Knights to be elected for the County Palatine of Chester The two Knts. for the County and two Burgesses for the City of Chester to have like Privileges c. and two Citizens as Burgesses for the City of Chester shall be Knights and Burgesses of the Court of Parliament and have like Voice and Authority to Intents and Purposes as any other the Knights and Burgesses of the said Court have use and enjoy c. Vide ante 176. That the two Knights to be elected for the County England and the two Citizens as Burgesses for the City of Durham the Election of Knights of the Shire to be by a Majority of Freeholders Stat. 25 C. ch 29. ante The two Knights to be elected for the County and two Burgesses for the City of Durham by a Majority of Freeholders and a like Majority of Mayor Aldermen and Freemen present to have like Privileges c. and the Burgesses by a Majority of the Mayor Aldermen and Freemen present at such Election shall be Knights and Burgesses of the High Court of Parliament to all Intents and Purposes and have and use the like Voice Authority and Places therein to all Intents and Purposes as any other the Knights and Burgesses of the said Court and shall have use and enjoy all such and the like Liberties Advantages Dignities and Privileges concerning the said Court to all Intents Constructions and Purposes as any other the Knights and
and must be amended there Sed aliter nunc Every Sheriff or other Officer St. 33 H. 8. c. 1. in Ireland returning any Knight Citizen or Burgess chosen in any other Manner than is prescribed in the Statute to forfeit a 100 l. Vide Post If one be duly Elected Knight 4 Inst 49. It cites in the Margin Rot. Parl. 5 H. 4. n. 38. Citizen or Burgess and the Sheriff Return another the Return must be reformed and amended by the Sheriff and he that is duly Elected must be Inserted for the Election in these Cases is the Foundation and not the Return 18 Jac. 1. Scobel 115. The Sheriff of Leicestershire having Returned Sir Thomas Beaumont upon Report from the Committee for Elections that Sir George Hastings was duly chosen the Sheriff was ordered to Return Sir George Hastings to the Clerk of the Crown and he to accept it and file it 21 Jac. 1. Ibid. Upon Report from the Committee of Privileges That in the Election of Mr. John Maynard for Chippingham John Maynard was Chosen but by a Mistake Charles was afterward written in stead of John It was Resolved The Return shou'd be amended without a new Writ and that the Bailiff shou'd do it and not the Clerk of the Crown and that it shou'd be sent down to the Bailiff in the Country and he to Return John Maynard Esq the first Burgess 1. Febr. 1640. Ibid. It being Resolved That the Election of Mr. Erle for one of the Burgesses of Wareham is a good Election Ordered That the Officer when the Return was made or his Deputy or the Electors shou'd amend the Return But the next Day it was Ordered That Edward Harbin the late Mayor of Wareham 's Deputy shou'd come to the Bar of the House and amend the Return 20 Febr. 1640. Ibid. 116. The Bailiff of Midhurst in Sussex came to the Bar being sent for by Order of the House and amended one of the Indentures of Return of Burgesses for that Town and the other was taken off the File If a Sheriff shall Return One for Knt. of the Shire who was unduly Simon d'Ewes Jour 283. Col. 2. or not at all Elected yet he that is so Return'd remains a Member of the House till his Election be declared Void Of double Returns England and new Writs Ex Memorials of Parliament That if any Sheriff be henceforth negligent in making his Returns of Writs of Parliament St. 5 R. 2. c. 4. Sheriffs neglecting to make Returns or leaving out the Returns of Cities or Borought shall be amerced or otherwise punished as in old Times or that he leave out of the said Returns any Cities or Boroughs which be bound and of old Time were wont to come to the Parliament he shall be amerced or otherwise punished in manner as was accustomed in the said Case in times past That from henceforth in order to the Elections of Counties at the next County after the Delivery of the Writ England Proclamation shall be made in full County of the Day and Place of the Parliament St. 7. H. 4. c. 15. Proclamation to be made at the next County-Court after the Delivery of the Writ to the Sheriff for the Election of knights of the Shires and that all they that be there present as well Suitors duly summoned for the same Cause as other shall attend to the Election of the Knights for the Parliament and then in the full County they shall proceed to the Election freely and indifferently notwithstanding any Request or Commandment to the contrary And after they be chosen Sheriff's Return after the Election shall be by Indenture containing the Persons chosen sealed by the Electors and annexed to the Writ the Names of the Persons so chosen be they present or absent shall be written in an Indenture under the Seals of all them that did choose them and tacked to the same Writ which Indenture so sealed and tacked shall be holden for the Sheriff's Return of the said Writ touching Knights of the Shires In Writs of Parliament hereafter to be made this Clause shall be put Et Electionem tuam in pleno Comitatu factam sub sigillo tuo sigillis eorum qui electioni illi interfuerant nobis in Cancellaria nra ad diem locum in brevi contentu certifices indilate England Forasmuch as in the Statute 7 H. 4. ch 15. no Penalty was ordained or limited in special upon the Sheriffs of the County if they make any Returns contrary of the same Statute St. 11. H. 4. c. 1. Of Returns made by Sheriffs contrary to the Statute 7 H. 4. c. 15. Justices of Assize impower'd to inquire and on Inquest and Proof made thereof such Sheriffs to pay 100 l. to the King It is ordained that the Justices assigned to take Assizes shall have Power to inquire at their Assizes of such Returns made and if it be found by Inquest and due Examination before the same Justices that any such Sheriff hath made any Return contrary to the Tenor of the said Statute the same Sheriff shall incur the Penalty of 100 l. to be paid to our Lord the King That all Sheriffs shall have their Answer and Traverse to Inquests and Offices St. 6 H. 6. c. 4. Sheriffs shall have their Traverses to Inquests c. upon the St 7.4 c. 15. 11 H. 4. c. 1. before any Justices of Assizes hereafter to be taken upon the Stat. 7 Hen. IV. chapter 15. and 11 Hen. IV. ch 1. and the said Sheriffs shall not be endamaged unto our Lord the King or his Successors for any such Inquest taken until they be duly convict according to the Form of Law That such are to be chosen Knights of the Shire as have the greatest Number of them that may expend 40 s. by Year and above England and shall be returned by the Sheriffs of every County St. 8 H. 6. c. 7. See Cromp. Juris 3. Hakewell 48. Knights for Parliament by Indentures sealed betwixt the said Sheriffs and the said Choosers And every Sheriff of the Realm of England shall have Power to examine upon the Evangelists every such Chooser how much he may expend by the Year And if any Sheriff return Knights to Parliament contrary to the said Ordinance the Justices of Assizes in their Sessions shall have Power thereof to inquire And if by Inquest the same be found before the Justices and the Sheriff thereof be duly attainted he shall incur the Penalty of 100 l. to be paid to our Lord the King and also that he have Imprisonment by a Year without Mainprize or Bail And that in every Writ hereafter to go forth Quere mention shall be made of this Ordinance That every Sheriff St. 23 H. 6. c. 15. Sheriff after the Receipt of the Writ to deliver a Precept under his Seal to every Mayor Bailiff c. of the Cities and Boroughs within his County reciting his Writ and commanding them to choose c. after the Delivery of any Writ of Election shall
make and deliver without Fraud England a Precept under his Seal to every Mayor and Bailiff or to Bailiffs or Bailiff where no Mayor is of the Cities and Boroughs within his County reciting the said Writ and commanding them if it be by a City to choose by Citizens of the same City Citizens and if it be a Borough a Burgess by the Burgesses of the same to come to the Parliament And that the same Mayor and Bailiffs Mayors Bailiffs c. to return the Precept to the Sheriff by Indentures of the Election and the names of the elected Sheriffs to return the Writ and every Return made by such Mayors Bailiffs c. or Bailiffs or Bailiff where no Mayor is shall return the Precept to the same Sheriff and them to be made of the said Elections and of the Names of the said Citizens and Burgesses by them so chosen and thereupon every Sheriff shall make a rightful Return of every such Writ and of every Return by the Mayors and Bailiffs or Bailiffs or Bailiff where no Mayor is to him made And that every Sheriff Sheriffs acting contrary to this Statute or any other Statute for Elections to pay 100 l. to the King and suffer a Year's Imprisonment with out Bail per Stat. 8 Hen. 6 ch 7. and forfeit to every Person chosen a Knight Citizen or Burgess and not duly returned or to any otherwhich in their Default will sue 100 l to be recovered by Action of Debt against the Sheriff his Executors or Administrators with Costs wherein no Wager of Law c. at every time that he doth contrary to this Statute or any other Statutes for the Election Knights Citizens and Burgesses before this Time made shall incur the Pain contained in the Statute England made the 8th Year of the then King's Reign and moreover shall forfeit and pay to every Person hereafter chosen Knight Citizen or Burgess in his County and not duly returned or to any other Person which in Default of such Knight Citizen or Burgess will sue an hundred Pound whereof every Knight Citizen and Burgess so grieved severally or any other Person which in Desault will sue shall have his Action of Debt against the said Sheriff or his Executors or Administrators to demand and have the said 100 l. with his Costs spent and that in such Action the Desendant shall not wage his Law or have any Essoign And if any Mayor and Bailiffs or Bailiffs or Bailiff Mayors Bailiffs c returning other than those chosen by Citizens and Burgesses shall forfeit 40 l. to the King and to every Person chosen a Citizen or Burgess and not by them returned or to any other that in Default of such Citizen or Burgess will sue 40 l. more to be recovered by like Action of Debt with Costs where no Mayor is shall return other than those which be chosen by the Citizens and Burgesses of the said Cities or Boroughs he shall incur and forfeit to the King 40 l. and moreover shall forfeit and pay to every Person so chosen Citizen or Burgess and not by the same Mayor and Bailiffs or Bailiff or Bailiffs where no Mayor is returned England or to any other Person which in Desault of such Citizen or Burgess so chosen will sue 40 l. whereof every of the Citizens and Burgesses so grieved severally or any other Person which in their Default will sue shall have his Action of Debt against every of the said Mayor and Bailiffs or Bailiffs or Bailiff where no Mayor is against their Executors or Administrators to demand and have of every of them 40 l. with his Costs expended And that in such Action of Debt no Defendant shall wage his Law nor have any Essoign And every Sheriff that maketh no due Election of such Knights in convenient Time that is to say every Sheriff in his full County betwixt the Hour of Eight and the Hour of Eleven before Noon without Collusion and that maketh not good and true Return of such Elections of Knights in Manner aforesaid Sheriff not making Election of Knights of the Shire in a full County Court between 8 and 11 in the Morning and a good Return accordingly to forfeit 100 l. to the King and 100 l. more to him that will sue to be recovered by like Action of Debt with Costs shall forfeit to the King an hundred Pound and also incur the Pain of 100 l. to be paid to him that will sue him his Executors or Administrators by Way of Action of Debt with his Costs expended without waging of Law or having Essoign as aforesaid England Provided always Such Actions to be brought by such Knight Citizen and Burgess within 3 Months after the Commencement of suce Parliament and to be proceeded in without Frand And after that time by any other See Cromp. Juris 3. Hakewel 43. That every Knight Citizen and Burgess chosen and not returned as aforesaid shall begin his said Action within three Months after the same Parliament commenced to proceed in the same Suit effectually without Fraud And if he doth not so another that will sue shall have the said Action of Debt as is before said and shall recover the same with his Costs and that no Defendant in such Action shall wage his Law nor be essoign'd And that such Process shall be in the Actions aforesaid as in a Writ of Trespass done against the Peace at the Common Law That the Knights of the Shires shall be notable Knights of the same Counties for which they shall be chosen Like Process to be in such Actions as in Trespass at Common Law Provided That Knights of the Shires be Knights of the Counties they shall be elected for or Esquires or Gentlemen able to be Knights and not Yeomen or under or otherwise such notable Esquires or Gentlemen born of the same Counties as shall be able to be Knight and no Man to be such Knight which standeth in the Degree of a Yeoman and under That Elections shall be made for the Sheriffs and Boroughs in Monmouthshire heretofore Part of Wales and in Wales England in like Manner St. 27 H. 8. c. 26. Duties of Sheriffs and other returning Officers in Wales like the same in England Form and Order as Knights and Burgesses be elected in other Shires of this Realm That the County Palatine of Chester shall have two Knights for the said County St. 34 and 35 H. 8. c. 13. Writ of Election under the Great Seal for Elections in Chester to be directed to the Chamberlain c. of Chester and his Precept thereon to the Sheriff of the County and two Citizens to be Burgesses for the City of Chester to be elected and chosen by Process to be awarded by the Chancellor of England unto the Chamberlain of Chester his Lieutenant or Deputy for the Time being and so like Process to be made by the Chamberlain his Lieutenant or Deputy to the Sheriff of the said County of Chester and the same Election to be
made in like Manner and Form to all Intents Constructions and Purposes as is used within the County Palatine of Lancaster or any other County and City within England which said Knights and Burgesses and every of them shall be returned by the said Sheriff into the Chancery of England in due Form and upon like Pains as is ordained that the Sheriff or Sheriffs of any other County should make their Return England Sheriff of Chester to make like Returns and on like Pains as other Sheriffs That the Burgesses of all Cities Stat. 35 H. 8. c. 11. Mayors Bailiffs c. of the twelve Shire-Towns in Wales and of Monmouth-Shire shall summon the Burgesses as well of all other Cities Boroughs and Towns in those Counties as of Burgesses of those Towns themselves to come to Elections Boroughs and Towns in the twelve Shires within Wales and County of Monmouth not finding Burgesses for the Parliament themselves and contributary to Wages of Burgesses of such Shire Towns shall be lawfully admonished by Proclamation or otherwise by the Mayors Bailiffs and other Head Officers of the said Towns or by one of them to come and give their Elections for the Electing the said Burgesses at such Time and Place lawful and reasonable as shall be assigned for the same by the said Mayors Bailiffs and other Head Officers of the said Shire Towns or by one of them That the County Palatine of Durham may have two Knights for the same County St. 25 C. 2. c. 9. Writ of Election under the Great Seal for Elections in Durham to be directed to the Bishop of Durham c. and his Precept thereon to the Sheriff of that County and the City of Durham two Citizens to be Burgesses for the same City to be elected by Writ to be awarded by the Lord Chancellor or Lord Keeper to the Lord Bishop of Durham or his Temporal Chancellor of the said County England and a Precept to be thereupon grounded and made by the said Lord Bishop or his Temporal Chancellor to the Sheriff of the said County and the same Election to be made in Manner following viz. the Elections of the Knights to be made by the greater Number of the Freeholders of the said County Palatine which shall be present at such Elections as is used in other Counties of this Kingdom and that the Election of the said Burgesses for the City of Durham to be made by the major part of the Mayor Aldermen and Freemen of the said City which shall be present at such Elections which said Knights and Burgesses Sherish of Durham to make like Returns and under like Pains as other Sheriffs St. 7 and 8 W. 3. c. 7. continued by St. 12 and 13 W. 3. c. 5. False Returns illegal and prohibited and all made contrary to the last Determination of the Right of Election in the House of Commons adjudged a false Return so elected shall be returned by the said Sheriff into the Chancery in due Form and upon the like Pains as be ordained for the Sheriff or Sheriffs of any other County in like Cases That all false Returns wilfully made of any Knight of the Shire Citizen Burgess Baron of the Cinque-Ports or other Members are against Law and are hereby prohibited and in case that any Person or Persons shall return any Member for any County City Borough Cinque-Port or Place contrary to the last Determination in the House of Commons of the Right of Election in such County England City Borough Cinque-Port or Place such Return is hereby adjudged a false Return The Party so grieved to wit He that shall be duly elected for any County Officers c. making such false Return liable to an Action at the Suit of any duly elected in any of the Courts at Westminster with double Damages and full Costs City Borough Cinque-Port or Place by such false Return may sue the Officers and Persons making or procuring the same and every or any of them at his Election in any Court of Record at Westminster and shall recover double Damages with his full Costs Any Officer that shall wilfully Officers c. falsly c. making double Returns liable to the like Action falsly and maliciously return more Persons than are required to be chosen by the Writ or Precept on which any Choice is made the like Remedy may be had against him or them and the Party or Parties that willingly procure the same by the Party grieved All Contracts Contracts Bonds c. given to procure the Return of any Member adjudged void and such as make or give them to procure any false or double Return forfeit 300 l. one third to the King another to the Poor of the County City c. and a third to the Informer with his Costs to be recovered by Action of Debt c. wherein no Essoign c. Promises Bonds and Securities whatsoever hereafter made or given to procure any Return of any Member or any thing relating thereto be adjudged void and that whoever makes or gives such Contract Security Promise or Bond or any Gift or Reward to procure such false or double Return England shall forfeit 300 l. one third Part to his Majesty another third Part to the Poor of the County City Borough or Place concern'd and one third Part to the Informer with his Costs to be recovered in any Court of Record at Westminster by Action of Debt Bill Plaint or Information wherein no Essoign Protection or Wager of Law allowed nor more than one Imparlance The Clerk of the Crown to keep a Book of Entry of every single and double Return and of every Alteration and Amendment in every such Return whereto all Persons to have Access and take Copies of so much as desired at a reasonable Fee And if the Clerk of the Crown makes not such Entry in Six Days after any Return or alters any Return without Order of the House of Commons or gives a Certificate of any Person not returned or wilfully neglects or omits his Duty herein to forfeit 500 l. for each Offence to the Party grieved to be recovered as aforesaid and lose his Office England and be for ever incapable of holding it Every Information or Action brought upon this Statute Informations or Actions on this Statute to be brought within two Years after the Cause shall be brought within the Space of two Years after the Cause of Action shall arise That when any New Parliament shall at any Time hereafter be Summoned or called Staf. 8 W. 3. c. 25. Writs of Summons to Parliament to have forty Days between the Teste and Returns and be issued with all Expedition and delivered to the proper Officer to whom its Execution belongs who shall indorse thereon the Day he received it and within three Days issue out his Precept to the like proper Officer of each Borough c. who shall also indorse the Day of his Receipt of the Precept in the former's Presence and proceed to Election in
and every the Sheriffs Mayors G. Britain Bailiffs and other Officers The Act to be read by the Sheriff c. after reading the Writ to whom the Execution of any Writ or Precept for electing any Members belongs shall at the Time of such Election immediately after the Reading of such Writ or Precept read or cause to be read openly before the Electors there assembled this present Act and every Clause therein contained and the same shall also openly be Read once in every Year at the General Quarter Sessions of the Peace after Easter and at the Quarter Sessions after Easter and on electing Magistrates c. for any County or City and at every Election of the chief Magistrate in any Borough Town Corporate or Cinque-Port and at the annual Election of Magistrates and Town Counsellors for every Borough in Scotland That every Sheriff Under-Sheriff Wilful Offence forfeits 50 l. Mayor Bailiff and other Officer to whom the Execution of any Writ or Precept for the electing of Members doth belong for every wilful Offence contrary to this Act shall forseit 50 l. to be recovered with full Costs as before directed Provided Prosecution to commence within two Years That no Person shall be made liable to any Incapacity Disability Forfeiture or Penalty by this Act unless Prosecution be commenced within two Years after such Incapacity c. incurred or in Case of a Prosecution the same be carried on without wilful Delay any Thing herein to the contrary After a Recital of the St. 7.8 St. 6. G. 11. c. 23. W. 3. and the Inconveniencies of County Courts being adjourned to Mondays Fridays or Saturdays it enacts That no County Court in England shall be adjourn'd to a Monday Friday or Saturday and all Adjournments and Acts done at such Courts so adjourn'd to be null and void any Law Custom or Usage to the contrary Provided That any County Court begun holden on or adjourned to any Day not prohibited by this or the said former Act for electing any Knight of the Shire for any County or for hearing and determining Causes or for such other Matters and Business as are usually transacted at County Courts may be adjourned over from Day to Day tho' the same may happen to be on a Monday Friday or Saturday until such Election or other Matters be fully finished any thing therein to the contrary c. CHAP. XIII Election of the Speaker THE Speaker is he that doth prefer and commend the Bills exhibited to the Parliament Arc. Parl. 3. Smyth's Common-wealth 75. and is the Mouth of the Parliament It is true 4 Inst 8. Smyth's Common-wealth 75. See Bohun's Coll. 352. contra the Commons are to choose their Speaker but seeing that after their Choice the King may refuse him for avoiding of expence of Time and Contestation the Use is as in the Conge d'Eslier of a Bishop that the King doth name a discret and learned Man whom the Commons elect But without their Election no Speaker can be appointed for them 4 Inst 8. because he is their Mouth and trusted by them and so necessary as the House of Commons cannot sit without him And therefore a grievous Sickness is a good Cause to remove the Speaker Id. 8. and choose another So in 1 Hen. 4. Sir John Cheyny discharged and so William Sturton So in 15 Hen. 6. Sir John Tyrrel removed So March 14. 1694. Sir John Trevor The first Day each Member is called by his Name Modus tenend Pal. 35. every one answering for what Place be serveth That done they are willed to choose their Speaker who tho' nominated by the King's Majesty is to be a Member of that House Their Election being made he is presented by them to the King sitting in Parliament 35. So Sir Thomas Gargrave 1 Eliz. So Christopher Wray 13 Eliz. So Robert Bell 14 Eliz. See Bohun's Coll. 352 353. So John Puckering 27 Eliz. So George Snagg 31 Eliz. So Edward Coke 35 Eliz. So Yelverton 39 Eliz. So John Crook 43 Eliz. So Sir Thomas Crew 19 Jac. 1. So Sir Heneague Finch 1 Car. 1. cum multis aliis The Speaker ought to be religious Towns Coll. 1.4 honest grave wise faithful and Secret These Virtues must concur in one Person able to supply that Place The long Use hath made it so material Elsyng 154 that without the King's Commandment or Leave they cannot choose their Speaker Sed aliter ab Antiquo Surely the Election of the Speaker was antiently free to the Commons Id. 155. to choose whom they would of their own House which appears in this that the King never rejected any whom they made Choice of Vide contra Sir Simon d'Ewes Journ 42. Col. 1. where he saith That 28 Hen. 6. Sir John Popham was discharg'd by the King i. e. on his excuse and thereupon the Commons chose and presented William Tresham Esq who made no Excuse See the like of Paul Foley in Bohun's Collection 353. The Cause of Summons being declared by the King or Chancellor Elsing 151 Cook 12 115. Smyth's Common-wealth 79. the Lord Chancellor confers first with his Majesty and then in his Name commands the Commons to assemble in their House and to choose one of their Members to be their Speaker and to present him to his Majesty on a Day certain Upon which the Commons shall presently assemble themselves in the Lower House Co. 12.115 and he is to be a Member of their Parliament The Commons being thereupon assembled in their House Elsyng 152 Vid. Town Coll. 174. See Bohun ut Supra one of the Commons puts the rest in mind of their Charge given in the Upper House touching the choosing of a Speaker and then doth of himself commend one unto them and desires their Opinions to be signified by their Affirmative or Negative Voices and if any Man stand up and speak against him so named alledging some Reason he ought to name another Some Person when the generality of Members are come Scobel 3. Vid. Town 174. Vide Sir S. d'Ewe's Jour passim and sit doth put the House in mind that for their better proceeding in the weighty Affairs they are come about their first Work is to appoint a Speaker and re-commends to the House some Person of Fitness and Ability for the Service and Dignity which usually hath been one of the long Robe If more than one Person be named for Speaker Scobel 3. and it be doubtful who is more generally chosen sometime one of the Members standing in his Place doth by Direction or Leave of the House put a Question for determining the same or the Clerk at the Board So it was in the first Session 1 Jac. 1. Scobel 4. when Sir Edward Philips the King's Serjeant at Law was first named by Mr. Secretary Herbert as fit for that Place and the Names of others were mention'd but the more general Voice run upon Sir Edward Philips and a Question being put he was by general Acclamation chosen Speaker When the Speaker
by him commenced he shall not be barred by any Statute of Limitation nor non-suited dismist or his Suit discontinued for want of Prosecution but shall from Time to Time on the rising of the Parliament be at Liberty to proceed to Judgment and Execution Sect. IV. That no Action Suit Process Order Judgment Decree or Proceedings in Law or Equity against the King's original and immediate Debtor for Recovery or obtaining of any Debt or Duty originally and immediately due or payable to his Majesty his Heirs or Successors or against any Accomptant or Person answerable or liable to render an Account to his Majesty his Heirs or Successors for any Part or Branch of their Revenues or other original and immediate Debt or Duty or the Execution of any such Process Order Judgment Decree or Proceedings shall be impeached stayed or delayed by or under the Colour or Pretence of Parliament Yet so that that the Person of any such Debtor or Accomptant or Person answerable or liable to account being a Peer of this Realm or Lord of Parliament shall not be liable to be arrested or imprisoned by or upon any such Suit Process Order Judgment c. or being a Member of the House of Parliament shall not during the Continuance of the Privilege of Parliament be arrested or imprisoned by or upon any such Order Judgment Decree Process or Proceedings Sect. V. Provided That this Act or any Thing therein shall not extend to give any Jurisdiction Power or Authority to any Court to hold Plea in any real or mixed Action in any other Manner than it might have been done before the making of this Act. Jovis Bohun's Collection pag. 27. 13 Feb. 1700. Resolved That no Member have any Privilege in any Case where he is only a Trustee Resolved Nem. Cont. That no Peer of the Realm hath any Right to vote in the Election of any Member to serve in Parliament And Declared by the House as a standing Order Ibid. That no Member have any Privilege except for his Person only against any Commoner in any Suit or Proceeding at Law or Equity for any longer Time than the House shall be actually sitting for the Dispatch of Business in Parliament Martii Ibid. pag. 230. 28 Nov. 1699. Resolved That no Member of this House acting as a Publick Officer hath any Privilege of Parliament touching any Matter done in Execution of his Office APPENDIX The Report of a Case happening in Parliament in the first Year of King James the First which was the Case of Sir Francis Goodwyn and Sir John Fortescue for the Knights Place in Parliament for the County of Bucks Translated out of the French IN this Case after that Sir Francis Goodwyn was elected Knight with one Sir William Fleetwood for the said County which Election was freely made for him in the County and Sir John Fortescue refused notwithstanding that the Gentlemen of the best Rank put him up the said Sir John Fortescue complained to the King and Council-Table he being one of them to wit one of the Privy Council that he had been injuriously dealt with in that Election which does not appear to be true But to exclude Sir Francis Goodwyn from being one of the Parliament it was objected against him That he was Outlawed in Debt which was true scilicet he was outlawed for sixty Pound the 31st of Queen Elizabeth at the Suit of one Johnson which Debt was paid and also the 39th of Eliz. at the Suit of one Hacker for sixtteen Pounds which Debt was also paid and that notwithstanding this the King by the Advice of his Council at Law and by the Advice of his Judges took Cognisance of these Outlawries and directed another Writ to the Sheriff of the said County to elect another Knight in the Place of the said Sir Francis Goodwyn which Writ bore Date before the Return of the former And this Writ recites N. B. Here the King assumes the Power of judging and determining the 〈◊〉 of Members Parliament Sed 〈◊〉 That because the said Sir Francis was outlawed prout Domino Regi constabat de Recordo and for other good Considerations which were well cognisant to the King and because he was Inidonious for the Business of the Parliament therefore the King commanded the Sheriff to elect one other Knight in his Room which Writ was executed accordingly and Sir John Fortescue elected And at last Day of the Return to wit the first Day of the Parliament both Writs were return'd the first with the Indenture sealed between the Sheriff and the Freeholders of Bucks in which Sir Francis Goodwyn and Sir William Fleetwood were elected Knights for the Parliament and also the Sheriff returned upon the Dorse of the Writ That the said Sir Francis was outlawed in two several Outlawries and therefore was not a meet Person to be a Member of the Parliament House The second Writ was returned with an Indenture only in which it was recited That Sir John Fortescue by reason of the second Writ was elected Knight Both these Returns were brought the third Sitting of the Parliament to the Parliament House by Sir George Copping being Clerk of the Crown And after that the Writs and Returns of them were read it was debated in Parliament Whether Sir Francis Goodwyn should be received as Knight for the Parliament or Sir John Fortescue And the Court of Parliament after a long Debate thereupon gave Judgment That Sir Francis Goodwyn should be received And their Reasons were these First because they took the Law to be That an Outlawry in Personal Actions was no Cause to disable any Person from being a Member of Parliament and it was said That this was ruled in Parliament 35th of Queen Elizabeth in the Parliament House in a Case for one Fitz-Herbert Another Precedent was 39 H. 6. Secondly The Pardons of the 39th of Queen Eliz. and 43 Eliz. had pardoned those Outlawries and therefore as they said he was a Man able against all the World but against the Party Creditor and against him he was not But in this Case the Parties were paid Also Thirdly it was said That Sir Francis Goodwyn was not legally outlawed because no Proclamation was issued forth to the County of Bucks where he was Commorant and Resiant And therefore the Outlawry being in the Hustings in London and Sir Francis Goodwyn being Comorant in Bucks the Outlawry no Proclamation issuing to the County of Bucks was void by the Statute of the 31st of the Queen which in such Cases makes the Outlawries void Fourthly It was said that the Outlawries were 1. Against Francis Goodwyn Esq 2. Against Francis Goodwyn Gent. And 3. The Return was of Francis Goodwyn Knight Et quomodo constant that those Outlawries were against the said Sir Francis Goodwyn For these Reasons also they resolved That the Outlawries were not any Matter against Sir Francis Goodwyn to disenable him to be a Knight for the County of Bucks Fifthly It was said That by the Statute
of 7 H. 4. which prescribes the Manner of the Election of Knights and Burgesses it is Enacted That the Election shall be by Indenture between the Sheriff and the Freeholders and that the Indenture shall be the Return of the Sheriff It was also said That the Precedents do warrant this Judgment viz. 1. One Precedent of 39 H. 6. where a Person outlawed was adjudged a sufficient Member of Parliament Another 1 Eliz. and at that Time one Gargrave who was a Man learned in the Law was Speaker and of the Queen's Council 2. Another was the Case of one Fludd in the 23d of the Queen who being outlawed was adjudged That he should be privileged by Parliament and at that Time the Lord Chief Justice Popham was Speaker And 3. In the 35th of Elizabeth there were three Precedents scil one of Fitz-Herbert another of one Killegrew being outlawed in fifty two Outlawries and the third of Sir Walter Harecourt being outlawed in eighteen Outlawries But after this Sentence and Judgment of the Parliament the King's Highness was displeased with it because the second Writ emanavit by his Assent and by the Advice of his Council And therefore it was moved to the Judges in the Upper-House Note Whether a Person outlawed could be a Member of Parliament who gave their Opinions that he could not And they all except Williams agreed That the Pardon without a Scire facias did not help him but that he was outlawed to that Purpose as if no Pardon had been granted And upon this the Lords sent to the Lower-House desiring a Conference with them concerning this Matter which Conference the Lower-House after some Deliberation denied for these Reasons 1. Because they had given their Judgment before and therefore they could not have Conference de re Judicata as in like Manner they did 27 Queen Eliz. upon a Bill that came from the Lords and was rejected by Sentence upon the first Reading Sir Walter Mildmay being then of the Privy Council and of the House 2. Because they ought not to give any Accompt of their Actions to any other Person but to the King himself This Answer the Lords did ill resent and therefore refused Conference in other Matters concerning Wards and Respite of Homages and Purveyors and also they sent to the King to inform him of it But before their Messengers came to the King two of the Privy Council scilicet Sir John Stanhope and Sir John Herbert were sent to the King by the Lower-House to inform him that they had heard that his Grace was displeased with the House for their Sentence given for Sir Francis Goodwyn as well as in the Matter of the Sentence which was as they heard said to be against Law as also for the Manner of their Proceedings being done hastily without Calling to it either Sir John Fortescue or his Council or without making his Grace acquainted with it And therefore they desired his Grace to understand the Truth of this Matter and also told him That they were ready with his good Leave with their Speaker to attend his Majesty to give him Satisfaction about their Proceedings But the King told them they came too late and that it ought to have been done sooner calling the House Rash and Inconsiderate But yet notwithstanding he was content to hear their Speaker in the Morning at Eight of the Clock Upon this Message Committees were chosen to consider of the Things and Matters aforesaid which should be delivered to the King in Satisfaction of the Sentence given by the House which afterwards were considered of and digested by the Speaker and Committees in three Points viz. 1. In the Reasons and Motives of their Resolutions 2. In the Precedents which were those I before have reported 3. And in Matters of Law Which were those Matters of Law also before reported by me with another Addition That in the Time of Henry the Sixth the Speaker of the Parliament was arrested in Execution at the Suit of the Duke of York and the Question being put to the Judges at that Time See Bohun's Col. p. 277. Whether the Speaker ought to have his Privilege it was said by them That they were Judges of the Law and not Judges of Parliament The Reasons and Motives were the free Election of the County the Request of one of the House the double Return of the Sheriff with a Commemoration of the Length of the Time since the Outlawries and with that the Payment of the Debts To this Report the King answered That he now ought to change his Tune which he used in his first Oration scilicet Thanksgiving to Grief and Reproof But he said That it was as necessary they should be reproved as congratulated and therefore he cited a parcel of Scriptures wherein God had so done with his People Israel nay with King David the People whom he tendered as the Apple of his Eye and David who was a Man after his own Heart He said It seems antiently to be a Privy Counsellor was incompatible with being a Member of Parliament or Publick Counsellor That since Sir Francis Goodwyn was received by the House upon Reasons and Motives inducing the House thereunto so the King upon Reason too took Consideration of Sir John Fortescue being one of the Council an ancient Counsellor a Counsellor not chosen by the King but by his Predecessors and so he found him and therefore he endeavoured to grace him being the only Man of them that had been disgraced the King protesting that he would not for any Thing in the World offer unjustly any Disgrace to any Man in the Nation Besides he did not proceed rashly as they had proceeded but upon Deliberation with double Advice as well with that of his Council as with that of his Judges And in his answering the Precedents Quere If the King himself was not here too over weening he said That those were his own proper Records and to use them against himself was over-great Weenings But in Precedents he said that they ought to respect Times and Persons and therefore said That Henry the Sixth's Time was troublesome he himself Weak and Impotent And as for the other Precedents they were in the Time of a Woman which Sex was not capable of Mature Deliberation and so he said where Infants are Kings whom he called Minors For the Law Part he referred to the Answer of his Judges who by the Lord Chief Justice gave these Resolutions They all unanimously agreeing in them 1. That the King alone and not the Parliament House had to do with the Returns of the Members of Parliament for from him the Writs issued and to him the Sheriff is commanded to make his Returns but when a Man is returned and sworn the Parliament-House hath to do with him and the Sheriff ought to Return the Outlawry if he knew it before his Return 2. They resolved clearly Thatan outlawed Person cannot by the Law be a Member of the Parliament-House but for that Cause
the King might refuse the Return of him and for that Cause he was removable out of the House And therefore the Lord Chief Justice said That in the 35th of Henry the Sixth it was so adjudged in Parliament which answers the Precedents vouched by the Commons of that Time And also he said That in the first Year of Henry the Seventh it was adjudged in Parliament That Persons outlawed or attainted could not sit in Parliament without Restitution by Act of Parliament And he said That though the Books do not warrant his Saying yet the Parliament Roll which he had seen does warrant it which any Man might see 3. They resolved at the Instance of the King himself That the Party could not be discharged from the Outlawry without a Scire Facias sued against the Party Creditor Plantiff in Debt and Justice Windam for that Purpose recanting his former Opinion said That he upon perusing of his Books and by Reasons of the Law was of Opinion with his Companions 4. As for the Statute of the 31st of the Queen concerning Proclamation to be made in the County c. they all resolved as before Times it had been resolved That no Outlawry by that Statute was void until a Judgment declaring That there was no Proclamation issued forth to the County where the Party was Resiant at the Time of the awarding of the Exigent 5. As for the Statute of 7 Hen. 4. which enacts That the Indenture shall be only the Return of the Sheriff the Judges said That was true that such was the Statute and that that was his Return for so much but that Statute doth not restrain the Sheriff from returning any other Thing material which disables the Parties chosen 6. It was held That the Indorsement of the Writ comprehending the Matter of the Outlawry was material and not a Nugation 7. And lastly they resolved That by the Return of the Sheriff it apeared that Sir Francis Goodwyn was the same Person who was outlawed 31 Eliz. by the Name of Francis Goodwyn Esquire and 39 Eliz. by the Name of Francis Goodwyn Gentleman and that by the Words of the Return scilicet Idem Franciscus Goodwyn Miles Vtlagatus existit c. And they also agreed That no Person outlawed ought to have his Privilege of the Parliament-House and that all the Precedents vouched by the Commons were after the Parties were Members of the House and not before they were returned But notwithstanding these 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 Council 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 Precedents 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 meddled with the Sheriff's Return of Members of Parliament being but one half of the Body the Lords being one and the principal Part of the Parliament's Body Note This Resolution was writen 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 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 meddled 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 altered 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 Use 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 Precedents also do warrant this intermeddling 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 Chancellor 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 Chancellor hath no Power to award a second Writ nor to meddle with the Return of it and divers other Precedents 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 Thirty fifth of the Queen two Whereof one was upon the Return of the Sheriff that the Party first elected was Lunatick and thereupon the Parliament 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 Privileges Customs Orders and Returns of their House they were an entire