not only by the Princes Pleasure Fortescue 40. a. but also by Assent of the whole Realm so that of Necessity they must procure the Wealth of the People and in no wise tend to their hindrance It cannot otherwise be thought Ibid. but that they are replenish'd with much Wit and Wisdom seeing they are ordain'd not by the Device of one man alone or of a hundred wise Counsellors only but of five hundred and odd Men that ought to be freely Elected by the People CHAP. II. Power of Parliament THE most High and Absolute Power of the Realm of England Sir Tho. Smith's Common-wealth l. 2. c. 2. p. 72. Arcana Parl. 1. consisteth in the Parliament For as in War where the King himself in person the Nobility the rest of the Gentility and the Yeomanry are is the Force and Power of England So in Peace and Consultation where the Prince is to give Life and the last and highest Commandment the Barony or Nobility for the higher the Knights Esquires Gentlemen and Commons for the lower part of the Commonwealth the Bishops for the Clergy be present to advertise consult and shew what is good and necessary for the Commonwealth and to consult together and upon mature deliberation every Bill or Law being thrice read and disputed in either House the other two parts first each a part and after the Prince himself in presence of both the Parties doth consent unto and alloweth that is Ibid. p. 73. the Prince's and whole Realm's Deed whereupon justly no man can complain but must accommodate himself to find it good and obey it That which is done by this Consent is called firm stable and sanctum and is taken for Law The Parliament abrogateth old Laws 2. Maketh new Sir Tho. Smith ibid. Arc. Parl. 2. Vide Crompt Jur. 3. 3. Giveth order for things past and for things hereafter to be followed 4. Changeth Right and Possessions of private Men. 5. Legittimateth Bastards 6. Establisheth Forms of Religion 7. Altereth Weights and Measures 8. Giveth Form of Succession to the Crown 9. Defineth of doubtful Rights whereof is no Law already made 10. Appointeth Subsidies Tallies Taxes and Impositions 11. Giveth most free Pardons and Absolutions 12. Restoreth in Blood and Name 13. As the highest Court condemneth or absolveth them who are put upon their Trial. And to be short 14. All that ever the People of Rome might do either Centuriatis Comitiis or Tributis the same may be done by the Parliament of England which representeth and hath the Power of the whole Realm both the Head and Body For every English-man is intended to be there present either in Person or by Procuration and Attorny of what preheminence state dignity or quality soever he be from the Prince be he King or Queen to the lowest Person of England And the Consent of the Parliament is taken to be every man's consent As for the Power of Parliaments over both the Statute and Common Law of this Realm Rastal's Statutes fol 546. 25 H. 8. c 21. you will be best informed of it from the memorable words of an Act of Parliament it self which are as followeth viz. Whereas this Realm recognizing no Superiour under God but only the King hath been and is free from Subjection to any Man's Laws but only to such as have been devised made and ordained within this Realm for the Wealth of the same or to such other as by Sufferance of the King and his Progenitors the People of this Realm have taken at their free Liberty by their own Consent to be used amongst them and have bound themselves by long Vse and Custom to the Observance of the same not as to the Observance of the Laws of any Foreign Prince Potentate or Prelate but as to the Custom and ancient Laws of this Realm originally established as Laws of the same by the said Sufferance Consents and Custom and none otherwise It standeth therefore with Natural Equity and Good Reason that all and every such Laws Humane made within this Realm by the said Sufferance Consents and Custom the King and the Lords Spiritual and Temporal and Commons representing the whole State of this Realm in the most High Court of Parliament have full Power and Authority not only to dispence but also to authorize some Elect person or persons to dispence with those and all other Human Laws of this Realm and with every one of them as the Quality of the persons and Matter shall require And also the said Laws and every of them to abrogate adnul amplifie or diminish as it shall be seen to the King and the Nobles and Commons of this Realm present in Parliament meet and convenient for the Wealth of this Realm The Power and Jurisdiction of the Parliament for making of Laws in proceeding by Bill 4 Inst 36. is so transcendent and absolute as it cannot be confined either for Causes or Persons within any Bounds Si Antiquitatem spectes est vetutissima si Dignitatem est honoratissima si Jurisdictionem est capacissima The whole Parliament which should best know its own Power affirms Speed's Hist f. 914. Rot. Parl. 1 R. 3. In Cotton's Abridgment f. 713 714. That the Court of Parliament is of such Authority and the People of this Land of such a Nature and Disposition as Experience teacheth that the Manifestation and Declaration of any Truth or Right made by the Three Estates of this Realm assembled in Parliament and by Authority of the same maketh before all other things most Faith and certain quieting of mens Minds and removeth the Occasion of Doubts Parliamentum omnia potest says the 4 Leon. 174 176. The Parliament is of an absolute and unlimited Power in things Temporal within this Nation Sir Rob. Atkyns's Argument c. 50. The Parliament hath the highest and most sacred Authority of any Court Ibid. it hath an absolute Power it is the highest Court in the Realm as is acknowledged by our most learned and gravest Writers and Historians A man gives Land to one Crompton 20. b. and to his Heirs Males in that Case his Heirs Females also inherit and this was adjudged in Parliament One of the fundamental and principal Ends of Parliaments was Petyt's Preface to Ancient Rights c. p. 41. for the Redress of Grievances and easing the Oppressions of the People And the Mirror of Justices says c. 1. p. 9. That Parliaments were instituted to hear and determine the Complaints of the wrongful Acts of the King the Queen and their Children and especially of those persons against whom the Subjects otherwise could not have common Justice The greater the Persons are Sir Rob. Atkyns Argument p. 45. if they are in the Rank of Subjects they must be subject to the King's Laws and they are the more proper for the Undertaking and Encounter of this High Court It will not be impar congressus King John had resign'd up the Crown of
England to the Pope Id. 37. by the Hand of Pandulphus his Legat and sordidly submitted to take the Crown at his Hand again at a yearly Tribute In the Reign of our Noble King Edward the Third the Pope demanded his Rent and all the Arrears The Prelates Dukes Counts Barons and Commons resolved That neither the King nor any other could put the Realm nor the People thereof into Subjection sans l'assent de eux without their Assent This intimates Ibid. that with their joynt Consent the Crown may be disposed of And it was the highest Resolution in Law in one of the highest Points in Law concerning the King's claim of an Absolute Power and in a Time when the Pope was in his height It is the proper Work of this Supreme Court to deal with such Delinquents Ibid. as are too high for the Court of King's Bench or other ordinary Courts Daughters 4 Inst 36. and Heirs apparent of a Man or Woman may by Act of Parliament inherit during the Life of the Ancestor It may adjudge an Infant or Minor to be of full Age. Ibid. It may Attaint a Man of Treason Ibid. after his Death It may Naturalize a meer Alien Ibid. and make him a Subject born It may bastard a Child Ibid. that by Law is Legitimate viz. begotten by an Adulterer the Husband being within the four Seas It may Legitimate one that is Illegitimate Ibid. and born before Marriage absolutely it may Legitimate secundùm quid and not simplicitèr 21 Rich. 2. The Lords Appellants accused the Duke of Glocester of Treason Selden's Judicature 91. and tho' they knew he was dead they pray'd the King that he might be brought to his Answer The King sent his Writ c. they desired Judgment and had it So Robert Possington was impeached at the Parliament at Westminster Id. 95. and found Guilty long Time after he was dead and so forfeited his Estate John of Gaunt Duke of Lancaster had by Catherine Swinford 4 Inst 36. before Marriage four illegitimate Children Henry John Thomas and Joan. At the Parliament holden 20 Rich. 2. the King by Act of Parliament in Form of a Charter doth Legitimate these three Sons and Joan the Daughter Thomas Cromwel Earl of Essex was attainted by Parliament Ibid. and forth-coming to be heard and yet never call'd to answer in any of the Houses of Parliament and resolved by the Judges That if one be Attainted by Parliament it can never come in question after whether he were call'd or not call'd to answer for the Act of Attainder being pass't by Parliament did bind Where by Order of Law a man cannot be Attainted of High-Treason Id. 39. unless the Offence be in Law High-Treason he ought not to be Attainted by general Words of High-Treason by Authority of Parliament as sometimes hath been used but the High-Treason ought to be specially exprest seeing that the Court of Parliament is the highest and most honourable Court of Justice and ought to give Example to inferior Courts Acts against the Power of the Parliament subsequent bind not Id. 42. It is against the Power and Jurisdiction of the Parliament the Liberty of the Subject and unreasonable The Stat. Id. 42. 11 Rich. 2. c. 5. That no Person should attempt to revoke any Ordinance then made repealed for that such Restraint is unreasonable An Act 11 Rich. 2. c. 3. Ibid. That no man against whom any Judgment or Forfeiture was given shou'd sue for Pardon or Grace c. was holden to be unreasonable without Example and against the Law and Custom of Parliament and therefore void The High Court of Parliament to be committed to a few as in 21 Rich. 2. c. 16. Ibid. is holden to be against the Dignity of a Parliament and that no such Commission ought to be granted Tho' it be apparent Id. 43. what transcendent Power and Authority this Parliament hath and tho' divers Parliaments have attempted to bar restrain suspend qualifie or make void subsequent Parliaments yet could they never effect it for the latter Parliament hath ever Power to abrogate suspend qualifie explain or make void the former in the Whole or in any Part thereof notwithstanding any Words of Restraint Prohibition or Penalty in the former For it is a Maxim in the Law of Parliament Quòd Leges posteriores priores contrarias abrogant An Act of Parliament doth include every man's Consent Hobart 256. as well to come as present The Soveraign Power of this High Court of Parliament is such Hakewel 86. That altho' the King's Majesty hath many great Priviledges and Prerogatives yet many Things are not effectual in Law to pass under the great Seal by the King's Charter without Parliament The King by his Letters Patents may make a Denizen Id. 87. but cannot Naturalize him to all purposes as an Act of Parliament may do If a man be Attainted of Felony Id 89. or Treason by Verdict Outlawry Confession c. his Blood is corrupted which is a perpetual and absolute Disability for him or his Posterity to claim any Hereditament in Fee-simple either as Heir to him or any Ancestor paramount him and he shall not be restored to his Blood without Parliament And the King may give to any attainted Person his Life by this Charter of Parliament Id 90. The King cannot alter the Common Law or the general Customs of the Realm as Gavelkind Borough-English or the like without Parliament If a King have a Kingdom by Discent Ibid seeing by the Law of that Kingdom he doth inherit that Kingdom he cannot change those Laws of himself without Consent of Parliament By the Laws of this Kingdom Ibid. the King cannot by his Proclamation alter the Law but the King may make Proclamation That he shall incur the Indignation of his Majesty that withstands it But the Penalty of not obeying his Proclamation may not be upon Forfeiture of his Goods his Lands or his Life without Parliament Brook 123.98 Vide 20 H. 6.9 Crompton 22. b. Le Parliament d Engleterre ne lia Ireland quoad Terras suas quar ils ont Parliament la mes il poient eux lier quant al Choses transitory come eskipper de Lane ou Merchandize al intent de ceo carrier al auter Lieu ultra Mare The Parliament of England cannot bind Ireland as to their Lands for they have a Parliament there but they may bind them as to Things transitory as the shipping of Wool or Merchandize to the intent to carry it to another Place beyond the Sea Sometimes the King of England call'd his Nobles of Ireland to come to his Parliament of England 4 Inst 350. c. And by special Words the Parliament of England may bind the Subjects of Ireland The Lords in their House have Power of Judicature Id 23. and the Commons in their House have Power
of Judicature and both Houses together have Power of Judicature This Power is best understood by reading the Judgments and Records of Parliament at large Ibid. and the Journals of the House of Lords and * 6 H. 8. c. 16. Rast 429 430. Vaughan 285. the Book of the Clerk of the House of Commons If Inconveniencies necessarily follow out of the Law only the Parliament can cure them If a Marriage be declared by Act of Parliament to be against God's Law Id. 327. we must admit it to be so for by a Law that is by an Act of Parliament it is so declared In many Cases Multitudes are bound by Acts of Parliament 4 Inst 4 5. which are not Parties to the Elections of Knights Citizens and Burgesses as all they that have no Free-hold or have Free-hold in ancient Demesne and all Women having Free-hold or no Free-hold and Men within the Age of One and twenty years c. It is declared by the Lords and Commons in full Parliament Id. 14. upon Demand made of them on the Behalf of the King that they could not assent to any Thing in Parliament that tended to the disherison of the King and his Crown whereunto they were sworn The Expounding of the Laws Hakewel 94. doth ordinarily belong to the Reverend Judges and in Case of greatest Difficulty or Importance to the High Court of Parliament Errors by the Law in the Common Pleas are to be corrected in the King's Bench 4 Inst 22. Vid. Stat. 1. Jac. 1 c. 1. and of the King's Bench in the Parliament and not otherwise Actions at Common Law are not determined in this High Court of Parliament Selden 's Judicature 2. yet Complaints have ever been received in Parliaments as well of private Wrongs as publick Offences And according to the Quality of the Person and Nature of the Offence they have been retained or referred to the Common Law There be divers Precedents of the Trial of Bishops by their Peers in Parliament Id 4.5 as well for Capital Offences as Misdemeanors whereof they have been accused in Parliament As the Arch-Bishop of Canterbury 15 Ed. 3. n. 6 7 8. ibid. postea 44. 39. ibid. 17 E. 3.22 And the Bishop of Norwich 7 Rich. 2. for Misdemeanors So were the Bishops of York and Chichester tried for Treason by their Peers in Parliament upon the Appeal of the Lords Appellants 11 R. 2. Anno 21 R. 2. The Commons Acensed the Arch-Bishop of Canterbury of Treason and the Temporal Lords judged him a Traytor and Banished him But if the Bishop be accused out of Parliament he is to be tried by an ordinary Jury of Free-holders for his Honour is not inheritable as is the Temporal Peers out of Parliament save that only of their Trial. As no Day of Grace to be granted against them in any Suit A Knight to be returned upon the Pannel where a Bishop is Party and no Process in a Civil Action to be awarded against his Body and the like And by this it appeareth what Persons are de Jure triable by the Lords in Parliament viz. their Peers only Judgments in Parliaments for Death have been strictly guided per Legem Terrae Id. 168. The Parliament hath three Powers Sir Rob. Atkyns Argument c. 36. a Legislative in Respect of which they are call'd the three Estates of the Realm a Judicial in respect of this it is call'd Magna Curia or the High Court of Parliament a Counselling Power hence it is call'd Commune Concilium Regni The Parliament gives Law to the Court of the King's Bench Id. 49. and to all other Courts of the Kingdom and therefore it is absurd and preposterous that it shou'd receive Law from it and be subject to it The greater is not judged of the less All the Courts of Common Law judge only by the ordinary Rules of the Common Law Id. 50. but the Proceedings of Parliament are by quite another Rule The Matters in Parliament are to be discussed and determined by the Custom and Usage of Parliament and the Course of Parliament and neither by the Civil nor the Common Law used in other Courts The Judges of all the Courts of Common Law in Westminster are but Assistants Ibid. and Attendants to the High Court of Parliament And shall the Assistants judge of their Superiors The High Court of Parliament is the dernier Resort Ibid. and this is generally affirm'd and held but it is not the last if what they do may yet again be examin'd and controlled Because the High Court of Parliament proceeds by a Law peculiar to that High Court Id. 52. which is call'd Lex Consuetudo Parliamenti and not by the Rules of the Common Law and consists in the Customs Usages and Course of Parliament no Inferior Court can for this very Reason judge or determine of what is done in Parliament or by the Parliament A Statute Arc. Parl. 85. or Act of Parliament shall not be proclaimed for the Parliament represents the Body of the whole Realm for there are Knights and Burgesses of every County and Town But otherwise where it is ordained by the Act that it shall be proclaimed A man Attainted of Felony Id. 100. or Treason shall not be restored in Blood without Parliament 28 Ed. 1. Petyt's Appendix to Miscel Parliament n. 38. A Truce being concluded between the English and French by King Edward's Ambassadors who therein had dishonorably agreed to include the Scots the Ambassadors at the ensuing Parliament were sharply rebuked and corrected not only by the King himself the Prelates and Nobles but by the Commons The Court of Parliament was the Sanctuary Turner's Case of Bankers 36. whether the distressed Subject in his Exigence fled for Shelter and Refuge and alway found it Into the Sacred Bosom of Parliaments it was Ibid. Vide Several Precedents and Records that they powred out their Sighs and Groans with constant Success and when in Cases of high Nature the Common Law was arrested and stopt in her Proceedings Parliaments evermore ran into their Rescue and in dutiful ways discharged those Locks and Bars which had been unjustly sastned on the Exchequer The Right of the Crown of England Stat. Provis 25 Ed. 3. Rast Stat. 99. and the Law of the said Realm is such that upon the Mischiefs and Damages which happen to the Realm the King ought and is bound by his Oath of the Accord of his People in Parliament thereof to make Remedy c. To conclude this Chapter Le Parliament ad Absolute poiar en touts Cases come a faire Leys d'adjuger Matiers en Ley à trier vie del home à reverser Errors en Bank le Roy especialment lou est ascun Commune Mischief que l'ordinary Course del Ley n'ad ascun means à remedier en tiel Case ceo est le proper Court Et touts choses que ils font
Commencement could have been shewn During the British Saxon and Norman Governments the Freemen or Commons of England as now call'd and distinguish'd from the great Lords were pars essentialis constituens and essential and constituent Part of the Wittena Gemot Commune Concilium Baronagium Angliae or Parliament in those Ages It is apparent and past all Contradiction Id. 12. That the Commons in the Times of the Britons Saxons and Picts were an essential Part of the Legislative Power in making and ordaining Laws by which themselves and their Posterity were to be govern'd and that the Law was then the golden Metwand and Rule which measured out and allowed the Prerogative of the Prince and Liberty of the Subject and when obstructed or deny'd to either made the Kingdom deformed and leprous I may with good Reason and Warranty conclude Id. 125. that our Ancestors the Commons of England the Knights Gentlemen Freeholders Citizens and Burgesses of a great and mighty Nation were very far from being in former Times such Vassals and Slaves or so abject poor and inconsiderable as the absurd and malicious Ignorance and Falsities of late Writers have been pleased to make and represent them especially the Author of the Grand Freeholders Inquest and Mr. James Howel as if they were only Beasts of Carriage and Burthen ordain'd to be tax'd and talliated and have their Lives Estates and Liberties given away and disposed of without their own Assents The Book of the Clerk of the House of Commons is a Record 4 Inst 23. as it is affirmed by Act of Parliament 6 Hen. 8. c. 16. If the Commons do only Accuse by any way of Complaint whatsoever Selden's Judicature c. 14. and do not declare in Special against the Party accused then the Suit is the King 's and the Party is to be Arraigned or otherwise proceeded against by Commandment Ex parte Domini Regis In the Lower House sit the Speaker and the Knights Citizens Cromptona b. 4 Inst 1. Burgesses and Barons of the Cinque-Ports who represent the Body of the whole Commonalty of England All Persons and Commonalties St. 5 Rich. 2. c. 4. Rast 140. which shall be summon'd to Parliament shall come as has been used and accustom'd of ancient Time and he that shall not come having no reasonable Excuse shall be amerced and otherwise punish'd as of ancient Time has been used CHAP. VI. Power of the House of Commons THE House of Commons is a House of Information and Presentment Rush Coll. 217. Vol. 1. but not a House of Definitive Judgment 1 Car. 1. Rushw ib. 1625. Resolved That common Fame is a good Ground of Proceeding for this House either by Enquiry or Presenting the Complaint if the House find cause to the King or Lords 26 Jan. 28 Hen 6. Selden's Judicature p 29. Vid. id 38. The Commons required the Duke of Suffolk might be committed to Ward for that the General Fame went of him c. The Lords on Consultation with the Justices thought the same to be no good Cause of Commitment unless some special Matters were objected against him It is certain and not to be deny'd Petyt's Miscell Pref. c. p. 5. That in elder Time the People or Free-men had a great Share in the Publick Council or Government For Dion Cassius or Xiphiline out of him in the Life of Severus assures us Apud hos i.e. Britannos Populus magnâ ex Parte Principatum tenet It was not in the Power of all the Tenants in Capite in England Id. 47 48. tho' with the King's Consent to bind and oblige others or to make or alter a Law sine Assensu Communitatis Regni who had Votum consultivum decisivum an Act of Authority and Jurisdiction as well in assenting to Spiritual Laws as Temporal as may appear for an Instance in their Declaration or Protestation to Edward the Third in Parliament which concludes thus For they will not be obliged by any Statute or Ordinance made without their Assent Rush Coll. 690. A Member of Parliament may charge any great Officer of State with any particular Offence If any Lord of Parliament Spiritual or Temporal 4 Inst 24. have committed any Oppression Bribery Extortion or the like the House of Commons being the general Inquisitors of the Realm coming out of all Parts thereof may examine the same and if they find by the Vote of the House the Charge to be true then they transmit the same to the Lords with the Witnesses and the Proofs 1 Jac. 1. Petyt's Miscel Parl 64 1603. The Bishop of Bristol publishing a Book tending to make division and strife wrong and dishonour both to the lower House and the Lords themselves was complain'd of by the Commons to the Lords and he made his Recantation 1. That he had erred 2. That he was sorry for it 3. If it were to do again he would not do it 4. But protested it was done of Ignorance and not of Malice 7 Jac. 1. 1609. Vide Rush Hist Coll. 4 Car. Dr. Cowel writ a Book perniciously asserting certain Heads to the Destruction of Parliaments and the Fundamental Laws and Government of the Kingdom and was complained of by the Commons to the Lords who resolved to Censure his Errors and Boldness Ibid. And afterwards the Book was burnt by Proclamation Vide Dr. Manwaring's Case Rush Coll. Nalson Vide Petyt's Miscell Part. 74. Vide Dr. Montague's Case in Rushworth Nalson Petyt's Miscell Part. 82. 4 Junij 19 Jac. 1. Petyt's Miscell Parl. 120. The Commons House of Parliament this day adjudged Randolph Davenport Esq for his Offence in Mis-informing the House in a Cause wherein he was produced as a Witness to be committed Prisoner to the Tower for the space of one whole Month and then to be discharged paying his Fees 19 Jac. 1. Id. 160. Ordered by the Commons House of Parliament That the Serjeant at Arms attending this House shall attach the Body of John Churchill one of the Deputy-Registers of the Chancery and him shall take into his Custody and bring him to this House on Monday morning next at Eight of the Clock and the said Serjeant is in the mean time to keep him so as none be suffer'd to speak with him but in the hearing of the Serjeant Vide ad hoc Rush Collect. passim Vide Nalson's 2 Volumes Vide Selden's Judicature c. Vide Sir Robert Atkyns's Argument c. Vide Petyt's Preface to Miscell Parliamentaria Thomas Long gave the Mayor of Westbury four pounds to be elected Burgess 4 Inst 23. Vide Sir d'Ewes Jour 182. who thereupon was elected This Matter was examin'd and adjudged in the House of Commons secundùm Legem Consuetudinem Parliamenti and the Mayor fined and imprisoned and long removed for this corrupt Dealing was to poison the very Fountain it self Arthur Hall a Member of the House of Commons Ibid.
it self The Commission of Adjournment we never read but say this House adjourns it self If the King write to an Abbot for a Corody for a Vallet if it be ex rogatu tho' the Abbot yields to it it binds not Therefore I desire that it be entred that this be done ex Rogatu Regis And this Matter touching his Majesties pleasure about the Recess Rush Coll. 537. was referred to a Committee and to consider the Power of the House to adjourn it self The Soveraign may adjourn the Parliament Sir Simon d'Ewes Jour 318. Col. 2. as well as the Parliament adjourns it self When a Parliament is call'd 4 Inst 28. Hutton 61. Vid. Sir S. d'Ewes Jour 407. Col. 1. and doth sit and is dissolved without any Act of Parliament passed or Judgment given it is no Session of Parliament but a Convention 18 Rich. 2. 4 Inst 28. The Petitions of the Commons were answered and a Judgment given in the King's Bench reversed but no Act pass't yet without Question it was a Session else the Judgment should not be of force Many times Judgments given in Parliament have been executed Ibid. the Parliament continuing before any Bill Pass't If divers Statutes be continued till the next Parliament Hutton 61. or next Session and there is a Parliament or Session and nothing done therein as to Continuance all the said Statutes are discontinued and gone 8 Apr. 1604. Hakewel 180. In the last Session of the first Parliament of K. James the first the House being desirous to have a Bill forthwith pass't declared That the Royal Assent to one Bill or more did not dissolve the Session without some special Declaration of his Majesties Pleasure to that purpose 1 2 Phil. Mar. Ibid. The King and Queen came of purpose into the Parliament House to give their Assent to Cardinal Pool's Bill and Resolved upon the Question by the whole House That the Session was not thereby concluded but they might proceed in their Business notwithstanding the Royal Assent given But for more Security it is usual to insert a Proviso to that purpose If there be divers Sessions in one Parliament Are. Parl. 93. Crompton 's Jour 7. b. 12 b. and the King signs not a Bill till the last there all is but one and the same day and all shall have relation to the first day of the first Session and the first day and the last are but one Parliament and one and the same day unless special mention be made in the Act when it shall take its force CHAP. XXI The proper Laws and Customs of Parliament THE Laws Customs Liberties 4 Inst 50. and Priviledges of Parliament are better to be learn'd out of the Rolls of Parliament and other Records and by Precedents and continual Experience then can be expressed by any one mans Pen. As every Court of Justice hath Laws and Customs for its Direction 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 determin'd adjudged and discussed by the Course of Parliament and not by the Civil Law nor yet by the Common Laws of this Realm used in more Inferior Courts which was so declared to be secundùm Legem Consuetudinem Parliamenti concerning the 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 Custom of 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 Withess 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 punish'd 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 arm'd against Games Plays and strange Shows c. during the Parliament that the Parliament may not be disturbed nor the Members thereof who are to attend arduous and urgent Business be not withdrawn Dec. 15. 1597. Towns Coll. 116 Vide Sir S. d'Ewes Jour 505. Col. 1. Resolv'd according to the ancient Custom of the House that all the Members of the same which did speak against passing of the Bill shou'd 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 accompany'd with all the Members of the House and deliver'd the said Bill to Mr. Speaker 17 Dec. 1597. Id. 117. Sir Simon d'Ewes Jour 574. Col. 2. The same Ceremony on the like Occasion omitted upon a Motion of the Speaker and order'd accordingly upon the Question 18 Dec. 1601. Towns 332. As the Speaker was coming to the House in the Morning the Pardon was deliver'd unto him which he took and deliver'd it to the House which they sent back again because it was not brought according to Course The Subsidy of the Clergy was sent in a Roll Id. 333. according to the usual Acts to which Sir Edward Hobby took Exceptions because it was not sent in a long Skin of Parchment under the Queens 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 Commmons 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
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 consider'd of and digested by the Speaker and Committees in Three Points viz. 1. In the Reasons and Motives of their Resolutions 2. In the Presidents 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 Whether the Speaker ought to have his Priviledge 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 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 Presidents he said That those were his own proper Records and to use them against Himself was over-great Weenings But in Presidents 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 Presidents 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 That an 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 Presidents 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 Plaintiff in Debt and Justice Windam for that purpose recanting his former Opinion said That he upon perusing of his Books and by the Reasons of the Law was of Opinion with his Companions 4. As for the Statute of the 31th 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 Judgment Declaring That here 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 Indorsment 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 appeared 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 Priviledge of the Parliament House and that all the Presidents vouched by the Commons were after the Parties were Members of the House and not before they were
in Parliament are the King or Queen Sir Tho. Smith's Common-wealth 74. the Lords Temporal and Spiritual the Commons represented by the Knights and Burgesses of every Shire and Borough-Town These all or the greater Part of them and that with the Consent of the Prince for the time being must agree to the making of Laws The King of England Fortescue c. 36. p. 84. b. neither by himself or his Ministers imposeth Tallages or any other Burdens on his Subjects or alter their Laws or make new Laws without Assent of the whole Kingdom in Parliament No Parliament no Penny Turner's Case of Bankers 95. hath been always taken notice of as a principal Foundation of this Government even by our Neighbour Princes and States who have in all Ages made their Approaches upon this Realm and evermore valued us in Proportion to the Correspondency they observed between our Kings and their Parliaments For seeing the Power of every Prince is computed from his Treasure and Martial Men and those again by the Love of his People they well enough knew that as long as a good Understanding was maintain'd there our Princes could never want the Sinews either of the Purse or of valiant mens Arms. L'Assemblie de Troys Estates Finch's 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lib. 2. c. 1. so 21. b. Cestascavoir Roy Nobility Commons qui font le Corps del Realm est appel un Parliament lour Decree un Act de Parliament Car sans touts troys come si soit fait per Roy Seigneurs mes rien parle del Commons nest Ascun Act de Parliament i.e. The Assembly of the three Estates to wit the King the Nobility and the Commons which make the Body of the Realm is called a Parliament and their Decree an Act of Parliament for without all three as if it be done by the King and Lords but speaks nothing of the Commons there is not any Act of Parliament The word Parliament is used in a double sense 1. English Liberties p. 78. Strictly as it includes the Legislative Power of England as when we say an Act of Parliament and in this Acceptation it necessarily includes the King the Lords and the Commons each of which have a Negative Voice in making Laws and without their Joint Consent no new Laws can pass that be obligatory to the Subject 2. Vulgarly the Word is used for the two Houses the Lords and Commons as when we say The King will call a Parliament his Majesty has dissolved his Parliament c. This Court consists of the King's Majesty 4 Inst 1. sitting there as in his Royal Politic Capacity and of the three Estates of the Realm viz. the Lords Spiritual Arch-Bishops and Bishops who sit there by Succession in respect of their Counties or Baronies parcel of their Bishopricks The Lords Temporal Dukes Marquesses Earls Viscounts and Barons who sit there by reason of their Dignities which they hold by Discent or Creation every one of which both Spiritual and Temporal ought to have a Writ of Summons ex debito Justitiae And the Commons of the Realm whereof there be Knights of Shires or Counties Citizens of Cities and Burgesses of Boroughs all which are respectively elected by the Shires or Counties Cities and Boroughs by force of the King 's Writ ex Debito Justitiae and none of them ought to be omitted and these represent all the Commons of the whole Realm and are trusted for them The King Id. 2. and these three Estates are the great Corporation or Body Politic of the Kingdom and do sit in two Houses the King and Lords in one House called The Lords House the Knights Citizens and Burgesses in another House called The House of Commons That which is done by this Consent Arc. Parl. 2. is called firm stable and sanctum and is taken for Law All the Judges of the Realm Towns Collect 5 6. Vid. Crompton 1. b. Barons of the Exchequer of the Coif the King 's Learned Councel and the Civilians Masters of the Chancery are called to give their Assistance and Attendance in the Upper House of Parliament but they have no Voices in Parliament 4 Inst 4. But are made sometimes joynt Committees with the Lords Every English-man is intended to be there present either in Person Arc. Parl. 3. Smyth's Common-wealth 74. or Procuration and Attorny of what Pre-eminence State Dignity or Quality soever he be from the Prince be it King or Queen to the lowest Person in England And the Consent of the Parliament is taken to be every man's Consent No man ought to sit in the High Court of Parliament 4 Inst 45. but he that hath Right to sit there for it is not only a personal Offence in him that sitteth there without Authority but a public Offence to the Court of Parliament and consequently to the whole Realm It is to be observed 4 Inst 2. That when there is best Appearance there is the best Success in Parliament At a Parliament 7 Hen. 5. of the Lords Spiritual and Temporal there appeared but Thirty and there was but one Act pass't of no great weight In 50 Ed. 3. all the Lords appeared in Person and not one by Proxy and so many excellent Things were done that it was called Bonum Parliamentum At the Return of the Writs the Parliament cannot begin Id. 6. but by the Royal Presence of the King either in Person or Representation The King's Person may be represented by Commission under the Great Seal to certain Lords in Parliament Id. 7. authorizing them to begin the Parliament or to prorogue it c. When a Parliament is call'd Id. 28. and doth sit and is dissolved without any Act of Parliament passed or Judgment given it is no Session of Parliament but a Convention It is an Observation proved by a great Number of Precedents Id. 32. that never any good Bill was preferred or good Motion made in Parliament whereof any Memorial was made in the Journal-Book or otherwise Tho' sometimes it succeeded not at the first yet it hath never dy'd but at one Time or other hath taken effect Matters of Parliament are not to be ruled by the Common-Law Id. 17. If Offences done in Parliament might have been punish'd elsewhere Ibid. Vid. 1 Inst §. 108. it shall be intended that at some Time it would have been put in Ure It doth not belong to the Judges to judge of any Law Custom Id. 50. or Priviledge of Parliament It is the just and constant Course of Parliament to bring the Party accused to his Answer yea Seld. Judic 95. tho' he fly Justice yet to send out Proclamation into the Countries that he appear at a Day or else such and such Judgments shall be given against him What is done by either House according to the Law and Usage of Parliament Sir R. Atkyns Argument c. 14. is properly and in the Judgment of the
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 Id. 34 41 51 55. and Corporation 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 all 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-Law consists of the King Lords and Commons and they are but one Body Corporate The Liberties and Franchises of the Parliament Id. 55. in the Right of them are entire and due to both Houses for both make up the Parliament Knighton one of our best Historians doth notably disclose the ancient ends of calling Parliaments Knyghton de Eventibus Angliae l. 5. f. 2681. Col. 1 2. Petyt's Rights c. in Pref. p. 43 44. in saying Quod ex Antiquo Statuto Consuetudine laudabili approbata c. That by an ancient Statute and Custome 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 qualiter quoque 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 The House of Lords cannot exercise any Power Sir R. Atkin's Argument f. 51. as an House of Parliament or as a Court for Errors without the House of Commons be in Being at the same Time Both Houses must be prorogued together and dissolved together By the Law Parliaments ought to be very frequent Id. 59. 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. of which no man ought to imagine a Thing dishonourable An Offence committed in Parliament is a very high Offence Sir R. Atkyns Arg. 60. 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 A Parliament may err 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 preceding 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 whose Representative they are If any Offence whatever be committed in the Parliament by any particular Members Ibid. it is an high Infringment of the Right and Priviledge 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 Id 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't 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 9. Vid. Cromp. Jur. 10. as in the Time of Parliament wherein the King as Head and they as Members are conjoyn'd and knit together into one Body Politic so as whatsoever Injury during that Time is offer'd to the meanest Members 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 the highest Statutes in England are made
sont come Judgments Et si le Parliament mesme erre Fincht's 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 2. c. 1. f. 21. b. 22. a 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 CHAP. III. House of Lords THere certainly cannot in the whole World be seen a more Illustrious Court 2 Nalson 366. than this High and Honorable Assembly of Peers in Parliament nor any Thing of greater Benefit and Advantage to the Subjects of this Monarchy No Lord of Parliament can sit there Sir Simon d'Ewes Jour 11. Col. 1. till he be full One and twenty years unless by special Grace of the Prince and that very rarely unless they be near upon the Age of Twenty years at least A Bishop elect may sit in Parliament Ibid. as a Lord thereof If the King by his Writ calleth any Knight or Esquire to be a Lord of the Parliament 4 Inst 44. he cannot refuse to serve the King there in Communi illo Consilio for the Good of his Country It lies in the Favour of the Prince to make Heirs of Earldoms Members of the Vpper House Sir Simon d'Ewes Journal 〈◊〉 Col. 2. by Summoning them thither by Writ but then they take not their Place there as the Sons of Earls but according to the Antiquity of their Fathers Baronies The Arch-Bishop of Canterbury is the first Peer of the Realm Id. 140. Col. 1. The Earl-Marshals Place in Parliament is betwixt the Lord Chamberlain Id. 535. Col. 2. and the Lord Steward No man ought to sit in that High Court of Parliament 4 Inst 45. but he that hath Right to sit there If a Lord depart from Parliament without licence Id. 44. it is an Offence done out of the Parliament and is finable by the Law Any Lord of the Parliament Id. 12. by License of the King upon just Cause to be absent may make a Proxy 43 Eliz. 1601. Towns Coll. 135. Agreed by the Lords That the ancient Course of the House is Vide Sir Simon d'Ewes Journal 605. that the Excuses of such Lords as shou'd happen to be absent from the House upon reasonable Occasions ought to be done by some of the Peers and not by other Information All the Priviledges which do belong to those of the Commons House of Parliament Hakewell 82. à fortiori do appertain to all the Lords of the Vpper House for their Persons are not only free from Arrests during the Parliament but during their Lives nevertheless the original Cause is by reason they have Place and Voice in Parliament And this is manifest by express Authorities grounded upon excellent Reasons in the Books of Law A Proxy is no more than the constituting of some one or more by an absent Lord Sir Simon d'Ewes Journals 5. Col. 2. to give his Voice in the Vpper House when any difference of Opinion and Division of the House shall happen for otherwise if no such Division fall out it never cometh to be question'd or known to whom such Proxies are directed nor is there any the least use of them save only to shew prove and continue the Right which the Lords of the Vpper House have both to be Summon'd and to give their Voices in the same House either in their Persons or by their Proxies As many Proxies as any Peer hath Ibid. Col. 2. so many Voices he hath beside his own and if there be two or three Proxies constituted by one absent Lord as is frequent then alway the first named in the same is to give the Voice if he be present and if absent then the second sic de reliquis It is plain by the ancient Treatise Id. 6. Col. 1. Modus tenendi Parliamentum that if a Peer neither came to the Parliament nor sent a Proxy upon his Writ of Summons he forfeited 100 l. if an Earl 100 Marks if a Baron c. Towns Coll. 4.39 40 42. It seldom happeneth that any Bishop doth nominate fewer than three or two Proctors nor any Temporal Lord more than one John Arch-Bishop of Canterbury had this Parliament five Proxies Id. 34. 1 Eliz. 4 Inst 12 13. A Lord of Parliament by License obtained of the Queen to be absent made a Proxy to three Lords of Parliament one of which gave Consent to a Bill the other two said Not Content And it was by order of the Lords debated among the Judges and Civilians Attendants and conceiv'd by them that this was no Voice and the Opinion was affirmed by all the Lords That it was no Voice 2 Car. 1. 1626. Rush Coll. 269. The House of Peers made an Order That after this Session no Lord of this House shall be capable of receiving above two Proxies or more to be numbred in any Cause voted In the Lords House Arc. Parl. 12. Smith's Common-wealth 87. the Lords give their Voices from the Puisne Lord seriatìm by the Word Content or Not Content 4 Inst 34. First for himself and then severally for so many as he hath Letters and Proxies A Bill had three Readings in one Forenoon Towns Coll. 11. in the House of Lords Where a Committee of Lords is selected out to meet with another Committee of the House of Commons Towns Coll. 9. neither the Judges being but Assistants nor the Queens Council being but Attendants of and upon the House were ever nominated as Joynt-Committees with the Lords But when the Lords among themselves do appoint a Committee to consider of some ordinary Bill especially if it concern Matter of Law it hath been anciently used and may still without Prejudice to the Honour of the House that the King 's learned Council but especially the Judges may be nominated as Committees alone or as Joynt-Committees with the Lords January 19. 1597. 39 Eliz. It was resolved Towns Coll. 94. Sir Simon d'Ewes Jour That the Order and Usage of this House was and is that when any Bills or Messages are brought from the Lower House to be preferr'd to the Vpper House the Lord Keeper and the rest of the Lords are to rise from their Places and to go down to the Bar there to meet such as come from the Lower House and from them to receive in that Place their Messages
or Bills Contrariwise when any Answer is to be delivered by the Lord Keeper c. In passing of Bills Arc. Parl. 5. if the Not Contents be most then the Bill is dash't i. e. the Law is annihilated and goeth no further If the Contents be the most then the Clerk writeth underneath Soit baile aux Commons 3 Car. 1. 1626. Rash Coll. 365. Resolved upon the Question That the Priviledge of this House is that no Lord of Parliament the Parliament sitting or within the usual Time of Priviledges of Parliament is to be imprison'd or restrain'd without Sentence or Decree of the House unless it be for Treason or Felony or refusing to give Surety of the Peace Giving the Lye to a Peer is a Breach of Priviledge 2 Nalson 380. Ever since the Conquest the Arch-Bishops Hakewel 84. Vide Kelwey 184. Vide Lord Hollis's Letter Vide Lord Hollis's Remains Vid. contra Hunt's Argument for the Bishops Right c. Vid. Grand Question concerning Bishops Right per. totum and Bishops have no Title to have Voice and Place in Parliament but only in respect of their Temporal Baronies where they are present quousque perveniatur ad Diminutionem c. When a Question is had of the Attainder of any Peer Hakewel 84. Vid. contra Hunt ut suprà per tot Vid. Grand Question concerning Bishops Right c. per totum Selden of Judicature c. p. 150. or other in Parliament the Arch-Bishops and Bishops depart the Higher House and do make their Proxies for by the Decrees of the Church they may not be Judges of Life and Death 11 Rich. 2. Divers Lords and others being appealed of Treason and other Misdemeanors the Prelates absented themselves during the Trial having first made Protestation saving their Right to be present in Parliament * Vid. there the Protestation of the Bishops for ever Id. 151. The Protestation I think intends That they could not be present by reason of the Common Law and by reason of an Ordinance made at the Council at Westminster in 21 Hen. 2. by which all Clergy-men were forbidden agitare Judicium Sanguinis upon Pain to be deprived both of Dignities and Orders For surely as I think they might otherwise have been present both by the Common Law and by the Law of God All the Lords Spiritual and Temporal Selden's Judicature c. 39. 11 Rich. 2. claimed as their Liberty and Franchise that the great Matters moved in this Parliament and to be moved in other Parliaments in Time to come touching the Peers of the Land ought to be admeasured adjudged and discussed by the Course of the Parliament and not by the Civil Law nor by the Law of the Land used in the more base Courts of the Realm which the King granted in full Parliament The Proceeding against a Peer in Parliament is not necessary Id. 53. It appears that the Lords cannot of themselves judge a Common Person for an Offence Id. 61. for he is no Peer according to that of 4 E. 3. Numb 26. 1 Rich. 2. Id. 123. The Lord Beauchamp was sworn and examined and the Duke of Lancaster being one of the Committee was diligently examin'd before the rest of the said Committee but not sworn ad testificandum Earls and Dukes are not sworn In Judgments on Delinquents in Parliament Id. 132. the Commons might accusare petere Judicium the King assentire and the Lords only did judicare The King's Assent ought to be to Capital Judgments Id. 141. Vid. id 144 147 148 154 158. and the Lords Temporal to be only Judges therein and not the Lords Spiritual but in Misdemeanors the Lords Spiritual and Temporal are equal Judges and the King's Assent is not necessary Id. 136. yet it seemeth to me that the King's Assent is necessarily required in Capital Causes and Judgments If a Peer be committed to Prison the Gentleman Vsher hath the Charge of him thither and the Serjeant attending on the Great Seal How Lords of Parliament shall be placed in the Parliament Vide Stat. 31 Hen. 8. c. 10 Vid. 4 Inst 362. Rot. Parl. 3 H. 6. n. 10. and other Assemblies and Conferences of Council A Peer of the Realm shall be tried in an Appeal by Knights c. and not by his Peers Arcana Parl. 70. because it is at the Suit of the Party Brook 142 153. Otherwise it is in an Indictment of Treason or Felony for that it is at the Suit of the King Id. 71. The Duke of Somerset in the Time of Ed. 6. was tried for Felony and Treason by his Peers upon an Indictment for it is the Suit of the King When a Lord of Parliament is tried by his Peers 1 Hen. 4.1 Id. 72. they shall not be sworn to say their Verdict but they shall give their Verdict upon their Honor and are not charged but upon their Honors A Lord of Parliament shall have Knights upon his Trial in every Action 27 Hen. 8. f. 27. A Lord of Parliament may be Outlawed for Murder 27 Hen. 8. f. 17. If a Lord of Parliament makes a Rescous 27 H. 8.27 a Capias shall be taken out against him if the Sheriff return the Rescous otherwise it is in Case of Debt A Capias ad Satisfaciendum does not lye against a Lord of Parliament 11 H. 4.15 27 Hen. 8.27 for the Law presumes that he has Assets An Attachment is not grantable by the Common Law Dyer 316. Statute Law Custom or Precedent against a Lord of Parliament and the Lord Cromwel by Order in the Parliament-Chamber was discharged of such Process In a Praemunire against a Lord of Parliament Arc. Parl. 98. he ought to appeear in his proper Person and not by Attorny unless he has a special Writ of Chancery CHAP. IV. Power of the House of Lords A Peer of the Realm being Indicted of Treason 4 Inst 23. or Felony or Misprision of Treason may be Arraigned thereof in Parliament a Lord Steward being appointed and then the Lords Spiritual shall make a Procurator for them and the Lords as Peers of the Realm during the Parliament are Judges whether the Offence be Treason c. that is supposed to be committed by any Peer of the Realm and not the Justices Many notable Judgments by the Lords Ibid. Vide Rush Coll. passim Vid. Nalson at the Prosecution of the Commons and in later Times Error serra sue in Parliament Vid. Crompton 18. b. Parliament poet prendre Recognizance Brook 137. Error Error shall be sued in Parliament and the Parliament may take Recognizance If a Judgment be given in the King's Bench 4 Inst 21. either upon a Writ of Error or otherwise the Party grieved may upon a Petition of Right made to the King in English or in French and his Answer thereto Fiat Justitia have a Writ of Error directed to the Chief Justice of the
Merchants the Commons pray'd a general Inquiry might be made of the Residue whereof they complained Ibid. which the Lords granted When the Lord Nevil answered Id. 163. the Commons required that one Richard Love might be examined to prove that which the said Lord deny'd and so departed but two of the Commons remained and heard the Examinations and told the Lords That the said Richard had related otherwise to the Commons the day before which the said Richard deny'd Then all the Commons came and justify'd it again and thereupon the said Richard Love confessed it and on their Demands was committed In the 10 Rich. 2. Ibid. when the Commons had Impeached the Lord Chancellor they were present at his Answer and so often reply'd and enforced his Oath against him and required him to be committed and so he was before Judgment If the Commons do only complain Ibid. and do neither impeach the Party in Writing nor by Word of Mouth in open House nor demand Trial to be in their Presence in these Cases it is in the Election of the Lords Whether the Commons shall be present or not Issuing of Quo Warranto's out of the Court of King's Bench Nalson 588. Court of Exchequer or any Court against Boroughs that anciently or recently sent Burgesses to Parliament to shew 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 and Judges in such Quo Warranto's and Proceedings are punishable as in Parliament shall be thought consonant to Law and Justice 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 Atkyns'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 it self 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 after mature deliberation they answer'd It was not their part to judge of the Parliament which may judge of the Law The Reason Ibid. to judge of the Law signifies that they can judge whether a Law be good or not in order to approve it and to enact it or to repeal a Law In 1621. Ibid. the House of Commons made a Protestation against all Impeachments other than in the House for any thing there said or done It was said by Mr. Justice Crook Id. 58. Rush Coll. 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 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. Sir Simon d'Ewes Jour 347. Col. 2. Ordered 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 Eodem Anno Id. 367. Col. 1. 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 London 28 29 Eliz. 1586. Id. 397. Col. 1. Resolved by the whole Body of the House That the discussing and adjudging of Differences about Elections only belonged to the said House That tho' the Lord Chancellor and Judges were competent Judges in their proper Courts yet they were not in Parliament 31 Eliz. 1588. Id 451. Col. 1. Thomas Drury committed to the Serjeant's Custody brought to the Bar and discharged paying his Fees for speaking dishonourably of the Proceedings of the House 23 Eliz. 1580. Id. 283. Col. 1. A Member of the House stood Indicted of Felony Adjudged That he ought to remain of the House till he were Convicted for it may be any man's case who is guiltless to be Accused and thereupon Indicted of Felony or a like Crime 18 Eliz. 1575. Petyt 's Miscel Parl. 16 18 Edward Smalley was upon the Question adjudged by the House to be Guilty of Contempt and abusing the House by fraudulent Practise of procuring himself to be Arrested upon Execution of his own Assent and Intention to be discharged as well of his Imprisonment as of the said Execution And Matthew Kirtleton adjudged Guilty of Confederacy with the said Smalley Whereupon they were both ordered to be committed to the Tower And the said Smalley to remain there for a Month and after till he gave sufficient Assurance for payment of a hundred pounds to the Creditor and forty shillings for the Serjeant's Fees 4 Ed. 6. Criketoft Id. 96. for the confederating in the Escape of one Floud committed to the Tower and afterwards discharged paying his Fees 1 Jac. 1. Bryan Tash Id. 98. a Yeoman of his Majesties Guard for keeping the Door of the Lobby of the Vpper House against several Members of the House of Commons brought to the Bar of the House and upon his Submission and Confession of his Fault dismissed paying the ordinary Fees to the Clerk and Serjeant 20 Jac. 1. Dr. Harris Id. 104. for misbehaving himself in preaching and otherwise with respect to Election of Members of Parliament call'd to the Bar as a Delinquent and admonish'd to confess his Fault there and in the Country and in the Pulpit of his Parish Church 3 Car. 1. Mr. Burgess a Minister Id. 104 105. for abusing his Function in the Duty of Catechising c. sent for by a Messenger committed to the Tower and upon humble Submission deliver'd In the same Parliament Id. 105 106. Sir William Wray Mr. Langton Mr. John Trelawny and Mr. Edward Trelawny Deputy Lieutenants for Cornwal for assuming to themselves a Power to make Knights of the Shire defaming such as stood to be chosen sending for the Train'd Bands menacing the Country c.
14 Eliz. So John Puckering 27 Eliz. So George Snagg 31 Eliz. So Edw. Coke 35 Eliz. So Yelverton 39 Eliz. So John Crook 43 Eliz. So Sir Thomas Crew 19 Jac. 1. So Sir Heneage Finch 1 Car. 1 cum multis aliis The Speaker ought to be religious Towns Coll. 174. honest grave wise faithful and secret These Vertues 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 Surely the Election of the Speaker was anciently 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 discharged by the King and thereupon the Commons chose and presented William Tresham Esq who made no Excuse The Cause of Summons being declared by the King or Chancellor Elsyng 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. Towns Coll. 174. one of the Commons puts the rest in mind of their Charge given in the Vpper 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. Towns 174. Vide Sir S. d'Ewes 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 that 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 Co. 12.115 Vid. Towns 175. Vid. Sir S. d'Ewes Jour passim he was by general Acclamation chosen Speaker When the Speaker is chosen 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 Elsyng 153 Vid. Towns 175. Vide Sir S. d'Ewes Jour passim 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. Towns 175. Vide Sir S. d'Ewes Jour passim two of the Members which for the most Part were 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 Elsyng 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 Endeavors 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 Then some and commonly he that first spake puts them in mind of the Day to present him Vid. Towns 175. Sir Simon d'Ewes Jour passim c. Elsyng 153 So it was done by Sir William Knowls the Controller in the 43 Eliz. Two or three Days after the Commons shall present the Speaker in the Vpper House to the King Co. 12.115 Rush Coll. 480. Smyth's Common-wealth 80. 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 At the Day appointed Flsyng 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 consers 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. 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 Elsyng 164 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. Vid. Towns Coll. 4. 54 Rush Coll. 484. Vide Elsyng 164. First That the Commons in this Parliament may have free Speech 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 enjoy 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 Elsyng 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 Soveraign Sir R. Atkyns 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 meerly of Favour and may be refused them 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 an unfeigned and sincere Heart to do them service Scobel 5. Vide Sir S. d'Ewes Jour 43 44. The first Business in the House is ordinarily to read a Bill that was not pass't in the last Parliament preceeding or some new Bill as in that of 10 Jac. 1. 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 CHAP. XIII Business of the Speaker THE Mace is not carried before the Speaker Elsyng 153. until his Return being presented to the King and allow'd of Modus tenend Part. 36. Smith's Common-wealth 84. The Speaker sits in a Chair placed somewhat high to be seen and heard the better of all the Clerks of the House sit before him in a lower Seat who read Bills c. The Speaker's Office is Modus tenend Parl. 37. Smyth's Common-wealth 86. when a Bill is read as briefly as he may to declare the Effects thereof to the House That Day that the Speaker being approved by the King Haktwel 138 139. Sir Simon d'Ewes Jour 43 44. cometh down into the Commons House to take his Place the Custom is to read for that time only one Bill left unpast the last Sessions and no more to give him Seisin as it were of his Place 1 Jac. 1. Scobel 19. Sir Edward Philips was chosen Speaker and the same Day before he was presented to the King he signed a Warrant as Speaker by Command of the House for Election of another Person in the Place of Sir Francis Bacon being chosen in two Places A general Order hath usually been made in the Beginning of the Session Id. 20. to authorize the Speaker to give Warrants for new Writs in Case of Death of any Member or of double Returns where the Party makes his Choice openly in the House during that Session Where such general Order is not made Ibid. Writs have issued by Warrant of the Speaker by Vertue of Special Order upon Motion in the House Oftentimes on the first Day of the Meeting of the House Scobel 18. as soon as the Speaker hath been approv'd and sometime before such Persons as have been doubly return'd have made their Choice 43 Eliz. Mr. Johnson said Towns 191 192. The Speaker may ex Officio send a Warrant to the Clerk of the Crown who is to certifie the Lord Keeper and so make a new Warrant The Speaker said Ibid. Sir Simon d'Ewes Jour 627. Col. 2. That I may inform you of the Order of the House the Warrant must go from the Speaker to the Clerk of the Crown who is to inform the Lord Keeper and then to make a new Writ This Proposition I hold Ibid. Vide Sir S. d'Ewes Journ 627. Col. 2. That our Speaker is to be commanded by none neither to attend any but the Queen per Sir Edward Hobby The Warrant is to be directed to the Clerk of the Crown in Chancery Socbel 20. Vid. Towns Coll. 216 217. Vide Sir S. d'Ewes Jour passim Scobel 65. Petyt's Miscell Parl. 140. by Order of Parliament 13 Novemb. 1601. May 1604. Resolved That no Speaker from henceforth shall deliver a Bill of which the House is possessed to any whosoever without leave and allowance of the House but a Copy only It is no Possession of a Bill except the same be delivered to the Clerk to be read or that the Speaker read the Title of it in the Chair 5 Car. 11. 1628. Rush Coll. 660. The Speaker being moved to put the Question then proposed by the House he refused to do it and said That he was otherwise Commanded from the King 2 Martij The Speaker was urged to put the Question who said I have a Command from the King to adjourn till the Tenth of March and to put no Question and endeavouring to go out of the Chair was notwithstanding held by some Members the House foreseeing a Dissolution till a Protestation was publish'd When the Queen made an Answer to the Speaker's Speech he Towns Coll. 263. Vide Sir S. d'Ewes Journ 659. Col. 1 2. with the whole House fell upon their Knees and so continued till she bid them stand up 35 Eliz. Mr. Speaker was sent for to the Court Towns Coll. 61. where the Queens Majesty her self gave him Commandment what to deliver to the House The Speaker commanded upon his Allegiance not to read any Bills touching Matters of State or Reformation in Causes Ecclesiastical Id. 63. 16 Car. 1. 1640. Apr. 16. Rush Coll. 1127. The Speaker received Command from the King That his Majesties Speech shou'd be Entred in the Journal of the Commons House of Parliament whereupon the House passed a declarative Vote That they did not expect that this shou'd be performed by other Speakers but upon the like special Command or by the Order of the House Eodem Id. 1137.
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 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 Priviledge of this House hath always been Vide Sir S. d'Ewes Journ 483. Col. 2. first 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 shou'd stand upon our Priviledge seeing the Burden resteth upon us as the greatest Number per Francis Bacon 35 Eliz 1592. The Lord Chancellor in Parliament offer'd the Commons a Writ to deliver their Burgess Petyt 's Miscell Parl. 4. in Margin but they refused it 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. 13 E. 3. n. Cott. 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 Kings Estate and are ready to aid the same only in this Device they dare not agree without Conference with their Countreys whereby it appeareth That such Conference is warrantable by the Law and Custom of Parliament It is to be observed 4 Inst 14. tho' one be chosen for one particular County or Borough yet when he is return'd and sits in Parliament 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 consent iendum c. If Offences done in Parliament might have been punish'd 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 Litt. 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 Co. 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 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 Some Acts are general and some private or particular All Acts of Parliament relate to the first day of Parliament Ibid. 33 H. 6. f. 18. a. 33 H. 8. Brook Parl 86. Relation 35. if it be not otherwise provided by the Act. The House of Commons is to many Purposes a distinct Court 4 Inst 28. Vide Sir S. d'Ewes Jour 550. Col. 1 2. and therefore is not prorogued or adjourned by the Prorogation or Adjournment of the Lords House but the Speaker upon signification of the King's Pleasure by the Assent of the House of Commons doth say This Court doth Prorogue or Adjourn it self And then it is Prorogued or Adjourned and not before 39 Eliz. 1597. Towns Coll. 101 102. Vide Sir S. d'Ewes 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 4 Inst 28. ought to be there in Person 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 lagatum est By the Statute of 33 H. 8. c. 21. it is declared by Act of Parliament Ibid. 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 higher House of Parliament is and ever was of 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 4 Inst 34 35. the Lords give their Voices from puisne Lord seriatim 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 entred of Record in the Book of the Clerk of the Parliament upon pain to loose their Wages Sickness is no cause to remove any Knight Citizen 4 Inst 8. or Burgess of the House of Commons 18 Eliz. 1575. Sir Simon d'Ewes Journ 244. Col. 2. Resolved by the House That any person being
sont discharge de Contribution al Gages de Chivaliers del Parliament Moor fol. 768. quia lour Seigneurs servent pur eux in Parliament Tenants of ancient Baronies are discharged from Contribution to the Wages of Knights of Parliament because their Lords serve for them in Parliament Apr. 1640. Scobel 14. It was ordered in that Parliament That if any sit in that House that are return'd by more Indentures than usual they should withdraw till the Committee for Priviledges had further order'd In the beginning of every Parliament Id 40. some Persons have been appointed to consider of such Laws as had continuance to the present Session whether they were fit to be continued or determin'd as also of former Statutes repealed or discontinued whether fit to be reviewed and what are fit to be repealed Any Member of the House may offer a Bill for publick good Ibid. except it be for imposing a Tax which is not to be done but by Order of the House first had A private Bill that concerns a particular Person Id. 41. is not to be offer'd 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 order'd Hakewel 135. That every one that preferreth a private Bill shou'd 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 until the House grow full If any publick Bill be tender'd 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 Martij 1606. Id. 46. Mr. Hadley being assigned of a Committee to confer with the Lords desired to be spared he being in Opinion against the Matter it self And it was conceived for a Rule That no man was to be imploy'd in any Matter that had declared himself against it and the Question being put it was resolved Mr. Hadley was not to be imploy'd CHAP. XXII Priviledge of Parliament THE Priviledge of Tenants in Ancient Demesne must be as ancient as their Tenure and Service Sir R. Atkin's Argument 18. Vide Coke 9 Rep. in Pres for their Priviledge 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 return'd 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 Priviledge of Parliament Id. 42. Hakewel 62. not only for his Servants but for his Horses c. or other Goods distrainable The Priviledge 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 that time For their own Persons Ibid. they have been priviledged from Suits Arrests Imprisonments Attendance on Trials Serving on Juries and the like yea from being summoned or call'd to attend upon any Suit in other Courts by Subpaena served on them He that doth Arrest any Member of either House Hakew. 62. Vide Dyer 60. during the Session of Parliament shall be imprison'd in the Tower by the nether House of which he is and shall be put to his Fine and the Keeper also if he will not deliver him when the Serjeant at Arms doth come for him by Command of the House The Servants tending upon their Masters during Parliament Ibid. Crompton's Juris 11. who are necessary and also such Officers as attend the Parliament as the Serjeant at Arms the Porter of the Door Clerks and such like and also their Chattels and Goods necessary are priviledged so that they shall not be taken or arrested by any Officer if it be not in case of Treason or Felony Generally the Priviledges of Parliament do hold 4 Inst 25 unless it be in three Cases viz. Treason Felony and the Peace No Priviledge is allowable in case of the Peace 2 Nalson 450. nor in Case of Conviction or disarming of Recusants No Minister of the Parliament St. 3 Ed. 4. in Ireland during forty days before and forty days after the Parliament finish'd shall be impleaded vexed or troubled by no means That every Minister Ibid. as well Lords Proctors as Commons be discharged and quitted of all manner of Actions had or moved against them or any of them during the time aforesaid and this to endure for ever Apres que Members sont returns Dyer 16. a. pl. 19. lour personal Attendance est cy necessary al Parliament que ils ne doient pur ascum Business estre absents nul un Person poit estre bien mis eo que il est un necessary Member pur ceo si ascun morust devant le Parliament un novel serra eslieu en son lieu issint que l'entire Number ne doit failer donque il ensue que le Person de chescun tiel Member doit estre privilege d'arrest al Suit d'ascun privat Person durant cel temps que il est embusyd entour les Affairs del Roy son Realm tiel privilege ad estre touts foits grant per le Roy a les Commoners al Request del Prolocutor del Parliament le primer Jour c. After that the Members are returned their Attendance is so necessary to the Parliament that they ought not for any Business to be absent and no one Person can well be mist so that he is a necessary Member and therefore if any die before the Parliament a new one shall be chosen in his place so that the entire Number may not fail and then it follows that the Person of every such Member ought to be priviledged from Arrest at the Suit of any private Person during the time that he is busied in the Affairs of the King and the Realm and such Priviledge has used to be granted at all times by the King to the Commons at the Request of the Speaker of the Parliament the first Day c. Common Reson voit Ibid. que intant que le Roy tout son Realm ad un Interest en le Corps de chescun de dits Members il semble que le privat Commodity d'ascun particular home ne doit estre regard Common Reason will have it that forasmuch as the King and his whole Realm have an Interest in the Body of every one of its Members it seems that the private Commodity of
the Rights and Priviledges of Parliament sit there any longer without a full Vindication of so high a Breach of Priviledge and a sufficient Guard wherein they might confide The Lords cannot proceed against a Commoner Selden 's Jud. p. 84. but upon a Complaint of the Commons APPENDIX The Report of a Case happening in Parliament in the first year of K. 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 60 l. 31th 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 16 l. which Debt was also paid and that notwithstanding the King by the Advice of his Councel 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 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 him to elect one other Knight in his room which Writ was executed accordingly and Sir John Fortescue elected And at the day 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 President 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 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 Commoran in Bucks the Outlawry no Proclamation issuing to the County of Buks was void by the Statute of the 31th 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 Kt. Et quomodo constat 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 c. that the Indenture shall be the Return of the Sheriff It was also said That the Presidents do warrant this Judgment videlicet 1. One President of the 39 H. 6. where Person Outlawed was adjudged a sufficient Member of Parliament Another 1 Eliz. and ot that time one Gargrave who was a man learned in the Law was Speaker and of the Queens Council 2. Another was the Case of one Fludd in the 23th of the Queen who being Outlaived was â—â—â—udged that he should be Priviledged by Parliament and at that time the Lord Chief Justice Popham was Speaer And 3. In the 35th of Elizabeth there were three Presidents scil one of Fitzherbert another of one Killegrew being Outlawed in 52 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 Vpper House 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 which 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