in Parliament are the King or Queen Sir Tho. Smith's Common-wealth 74. the Lords Temporal and Spiritual the Commons represented by the Knights and Burgesses of every Shire and Borough-Town These all or the greater Part of them and that with the Consent of the Prince for the time being must agree to the making of Laws The King of England Fortescue c. 36. p. 84. b. neither by himself or his Ministers imposeth Tallages or any other Burdens on his Subjects or alter their Laws or make new Laws without Assent of the whole Kingdom in Parliament No Parliament no Penny Turner's Case of Bankers 95. hath been always taken notice of as a principal Foundation of this Government even by our Neighbour Princes and States who have in all Ages made their Approaches upon this Realm and evermore valued us in Proportion to the Correspondency they observed between our Kings and their Parliaments For seeing the Power of every Prince is computed from his Treasure and Martial Men and those again by the Love of his People they well enough knew that as long as a good Understanding was maintain'd there our Princes could never want the Sinews either of the Purse or of valiant mens Arms. L'Assemblie de Troys Estates Finch's 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lib. 2. c. 1. so 21. b. Cestascavoir Roy Nobility Commons qui font le Corps del Realm est appel un Parliament lour Decree un Act de Parliament Car sans touts troys come si soit fait per Roy Seigneurs mes rien parle del Commons nest Ascun Act de Parliament i.e. The Assembly of the three Estates to wit the King the Nobility and the Commons which make the Body of the Realm is called a Parliament and their Decree an Act of Parliament for without all three as if it be done by the King and Lords but speaks nothing of the Commons there is not any Act of Parliament The word Parliament is used in a double sense 1. English Liberties p. 78. Strictly as it includes the Legislative Power of England as when we say an Act of Parliament and in this Acceptation it necessarily includes the King the Lords and the Commons each of which have a Negative Voice in making Laws and without their Joint Consent no new Laws can pass that be obligatory to the Subject 2. Vulgarly the Word is used for the two Houses the Lords and Commons as when we say The King will call a Parliament his Majesty has dissolved his Parliament c. This Court consists of the King's Majesty 4 Inst 1. sitting there as in his Royal Politic Capacity and of the three Estates of the Realm viz. the Lords Spiritual Arch-Bishops and Bishops who sit there by Succession in respect of their Counties or Baronies parcel of their Bishopricks The Lords Temporal Dukes Marquesses Earls Viscounts and Barons who sit there by reason of their Dignities which they hold by Discent or Creation every one of which both Spiritual and Temporal ought to have a Writ of Summons ex debito Justitiae And the Commons of the Realm whereof there be Knights of Shires or Counties Citizens of Cities and Burgesses of Boroughs all which are respectively elected by the Shires or Counties Cities and Boroughs by force of the King 's Writ ex Debito Justitiae and none of them ought to be omitted and these represent all the Commons of the whole Realm and are trusted for them The King Id. 2. and these three Estates are the great Corporation or Body Politic of the Kingdom and do sit in two Houses the King and Lords in one House called The Lords House the Knights Citizens and Burgesses in another House called The House of Commons That which is done by this Consent Arc. Parl. 2. is called firm stable and sanctum and is taken for Law All the Judges of the Realm Towns Collect 5 6. Vid. Crompton 1. b. Barons of the Exchequer of the Coif the King 's Learned Councel and the Civilians Masters of the Chancery are called to give their Assistance and Attendance in the Upper House of Parliament but they have no Voices in Parliament 4 Inst 4. But are made sometimes joynt Committees with the Lords Every English-man is intended to be there present either in Person Arc. Parl. 3. Smyth's Common-wealth 74. or Procuration and Attorny of what Pre-eminence State Dignity or Quality soever he be from the Prince be it King or Queen to the lowest Person in England And the Consent of the Parliament is taken to be every man's Consent No man ought to sit in the High Court of Parliament 4 Inst 45. but he that hath Right to sit there for it is not only a personal Offence in him that sitteth there without Authority but a public Offence to the Court of Parliament and consequently to the whole Realm It is to be observed 4 Inst 2. That when there is best Appearance there is the best Success in Parliament At a Parliament 7 Hen. 5. of the Lords Spiritual and Temporal there appeared but Thirty and there was but one Act pass't of no great weight In 50 Ed. 3. all the Lords appeared in Person and not one by Proxy and so many excellent Things were done that it was called Bonum Parliamentum At the Return of the Writs the Parliament cannot begin Id. 6. but by the Royal Presence of the King either in Person or Representation The King's Person may be represented by Commission under the Great Seal to certain Lords in Parliament Id. 7. authorizing them to begin the Parliament or to prorogue it c. When a Parliament is call'd Id. 28. and doth sit and is dissolved without any Act of Parliament passed or Judgment given it is no Session of Parliament but a Convention It is an Observation proved by a great Number of Precedents Id. 32. that never any good Bill was preferred or good Motion made in Parliament whereof any Memorial was made in the Journal-Book or otherwise Tho' sometimes it succeeded not at the first yet it hath never dy'd but at one Time or other hath taken effect Matters of Parliament are not to be ruled by the Common-Law Id. 17. If Offences done in Parliament might have been punish'd elsewhere Ibid. Vid. 1 Inst §. 108. it shall be intended that at some Time it would have been put in Ure It doth not belong to the Judges to judge of any Law Custom Id. 50. or Priviledge of Parliament It is the just and constant Course of Parliament to bring the Party accused to his Answer yea Seld. Judic 95. tho' he fly Justice yet to send out Proclamation into the Countries that he appear at a Day or else such and such Judgments shall be given against him What is done by either House according to the Law and Usage of Parliament Sir R. Atkyns Argument c. 14. is properly and in the Judgment of the
of Judicature and both Houses together have Power of Judicature This Power is best understood by reading the Judgments and Records of Parliament at large Ibid. and the Journals of the House of Lords and * 6 H. 8. c. 16. Rast 429 430. Vaughan 285. the Book of the Clerk of the House of Commons If Inconveniencies necessarily follow out of the Law only the Parliament can cure them If a Marriage be declared by Act of Parliament to be against God's Law Id. 327. we must admit it to be so for by a Law that is by an Act of Parliament it is so declared In many Cases Multitudes are bound by Acts of Parliament 4 Inst 4 5. which are not Parties to the Elections of Knights Citizens and Burgesses as all they that have no Free-hold or have Free-hold in ancient Demesne and all Women having Free-hold or no Free-hold and Men within the Age of One and twenty years c. It is declared by the Lords and Commons in full Parliament Id. 14. upon Demand made of them on the Behalf of the King that they could not assent to any Thing in Parliament that tended to the disherison of the King and his Crown whereunto they were sworn The Expounding of the Laws Hakewel 94. doth ordinarily belong to the Reverend Judges and in Case of greatest Difficulty or Importance to the High Court of Parliament Errors by the Law in the Common Pleas are to be corrected in the King's Bench 4 Inst 22. Vid. Stat. 1. Jac. 1 c. 1. and of the King's Bench in the Parliament and not otherwise Actions at Common Law are not determined in this High Court of Parliament Selden 's Judicature 2. yet Complaints have ever been received in Parliaments as well of private Wrongs as publick Offences And according to the Quality of the Person and Nature of the Offence they have been retained or referred to the Common Law There be divers Precedents of the Trial of Bishops by their Peers in Parliament Id 4.5 as well for Capital Offences as Misdemeanors whereof they have been accused in Parliament As the Arch-Bishop of Canterbury 15 Ed. 3. n. 6 7 8. ibid. postea 44. 39. ibid. 17 E. 3.22 And the Bishop of Norwich 7 Rich. 2. for Misdemeanors So were the Bishops of York and Chichester tried for Treason by their Peers in Parliament upon the Appeal of the Lords Appellants 11 R. 2. Anno 21 R. 2. The Commons Acensed the Arch-Bishop of Canterbury of Treason and the Temporal Lords judged him a Traytor and Banished him But if the Bishop be accused out of Parliament he is to be tried by an ordinary Jury of Free-holders for his Honour is not inheritable as is the Temporal Peers out of Parliament save that only of their Trial. As no Day of Grace to be granted against them in any Suit A Knight to be returned upon the Pannel where a Bishop is Party and no Process in a Civil Action to be awarded against his Body and the like And by this it appeareth what Persons are de Jure triable by the Lords in Parliament viz. their Peers only Judgments in Parliaments for Death have been strictly guided per Legem Terrae Id. 168. The Parliament hath three Powers Sir Rob. Atkyns Argument c. 36. a Legislative in Respect of which they are call'd the three Estates of the Realm a Judicial in respect of this it is call'd Magna Curia or the High Court of Parliament a Counselling Power hence it is call'd Commune Concilium Regni The Parliament gives Law to the Court of the King's Bench Id. 49. and to all other Courts of the Kingdom and therefore it is absurd and preposterous that it shou'd receive Law from it and be subject to it The greater is not judged of the less All the Courts of Common Law judge only by the ordinary Rules of the Common Law Id. 50. but the Proceedings of Parliament are by quite another Rule The Matters in Parliament are to be discussed and determined by the Custom and Usage of Parliament and the Course of Parliament and neither by the Civil nor the Common Law used in other Courts The Judges of all the Courts of Common Law in Westminster are but Assistants Ibid. and Attendants to the High Court of Parliament And shall the Assistants judge of their Superiors The High Court of Parliament is the dernier Resort Ibid. and this is generally affirm'd and held but it is not the last if what they do may yet again be examin'd and controlled Because the High Court of Parliament proceeds by a Law peculiar to that High Court Id. 52. which is call'd Lex Consuetudo Parliamenti and not by the Rules of the Common Law and consists in the Customs Usages and Course of Parliament no Inferior Court can for this very Reason judge or determine of what is done in Parliament or by the Parliament A Statute Arc. Parl. 85. or Act of Parliament shall not be proclaimed for the Parliament represents the Body of the whole Realm for there are Knights and Burgesses of every County and Town But otherwise where it is ordained by the Act that it shall be proclaimed A man Attainted of Felony Id. 100. or Treason shall not be restored in Blood without Parliament 28 Ed. 1. Petyt's Appendix to Miscel Parliament n. 38. A Truce being concluded between the English and French by King Edward's Ambassadors who therein had dishonorably agreed to include the Scots the Ambassadors at the ensuing Parliament were sharply rebuked and corrected not only by the King himself the Prelates and Nobles but by the Commons The Court of Parliament was the Sanctuary Turner's Case of Bankers 36. whether the distressed Subject in his Exigence fled for Shelter and Refuge and alway found it Into the Sacred Bosom of Parliaments it was Ibid. Vide Several Precedents and Records that they powred out their Sighs and Groans with constant Success and when in Cases of high Nature the Common Law was arrested and stopt in her Proceedings Parliaments evermore ran into their Rescue and in dutiful ways discharged those Locks and Bars which had been unjustly sastned on the Exchequer The Right of the Crown of England Stat. Provis 25 Ed. 3. Rast Stat. 99. and the Law of the said Realm is such that upon the Mischiefs and Damages which happen to the Realm the King ought and is bound by his Oath of the Accord of his People in Parliament thereof to make Remedy c. To conclude this Chapter Le Parliament ad Absolute poiar en touts Cases come a faire Leys d'adjuger Matiers en Ley à trier vie del home à reverser Errors en Bank le Roy especialment lou est ascun Commune Mischief que l'ordinary Course del Ley n'ad ascun means à remedier en tiel Case ceo est le proper Court Et touts choses que ils font
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.
the Election of the Knights Id. 48. if the Party or Freeholders demand the Poll the Sheriff cannot deny the Scrutiny for he cannot discern who be Freeholders by the view and tho' the Party would wave the Poll yet the Sheriff must proceed in the Scrutiny The Knights shall be returned into Chancery by Indenture seal'd betwixt the Sheriff and the Choosers of Knights for the Parliament St. 8 H. 6. c. 7. 7 H. 4. c. 1. 23 H. 6. c. 15. Vid Crompton's Juris 3. 2 Nalson 870. Jan. 1641. In the Case of Mr. Downs return'd a Burgess for Arundel Order'd That he be presently sworn and admitted as a Member into the House until such Time as the Election be determin'd A Burgess elected for two several Boroughs may choose for which he will serve Sir Simon d'Ewes Jour 430 622. passim Petyt 's Miscel Parliament 112 113. 21 Jac. 1. Edward Ingry Under-sheriff of Cambridgeshire for refusing the Poll declaring that Sir Thomas Steward promised to defend him against Sir John Cutts was brought to the Bar and kneeling upon his Knees adjudg'd to be committed to the Serjeant's Custody and to make a Submission at the Bar and at the next Quarter-Sessions and to acknowledge his Faults 3 Car. 1. Id. 113. to 120. Thomson Sheriff of York for his hasty and precipitate Judgment of an Election and denying the Poll being requir'd and Alderman Henlow for advising and abetting the same adjudged to stand committed to the Serjeant during Pleasure to acknowledge their Offences at the Bar to pay all due Fees to defray the Charge of Witnesses to be assessed by four of the Committee to acknowledge their Faults on their Knees at the Bar and read a Submission After the Precept of the Sheriff directed to the City or Berough for making of Election Id. 49. there ought secundùm Legem Consuetudinem Parliamenti to be given a convenient Time for the Day of Election and sufficient Warning given to the Citizens and Burgesses that have Voices that they may be present otherwise the Election is not good unless such as have Voices do take Notice of themselves and be present at the Election Hobart 15. Dungannon 's Case in Ireland When there is a Corporation made by Charter and by the same an Ordinance that the Provost and Burgesses only shall choose c. The Law shall vest this Priviledge in the whole Corporation in point of Interest tho' the Execution of it be committed to some Persons Members of the same Corporation The King cannot grant a Charter of Exemption to any man 4 Inst 49. to be freed from Election of Knight Citizen or Burgess of Parliament as he may do of some inferior Office or Places because the Election of them ought to be free and his Attendance is for the Service of the whole Realm and for the Benefit of the King and his People and the whole Common-wealth hath an Interest therein 18 Eliz. 1575. Sir Simon d'Ewes 244. Col. 2. Vide contra Sir Simon d'Ewes Jour 281 282. Resolved That any Person being a Member of the House and being either in Service of Ambassage or else in Execution or visited with Sickness shall not in any wise be amoved from their Place in this House nor any other to be during such Time of Service Execution or Sickness elected CHAP. IX Who may be Electors THE Choosers of the Knights for the Parliament ought to be only of such Persons as are resiant and dwelling within the said Shire St. 1 H. 50. 1. 8 H. 6. c. 7. 10 H. 6. c. 2. No Person shall be a Chooser of the Knights for the Parliament St. 8 H. 6. c. 7. 33 H 8. c. 1. in Ireland except he hath Freehold Lands or Tenements within the same County to the value of Forty shillings per Annum at the least above all Charges The Sheriff hath Power given him by the said Statute to examine upon Oath every such Chooser St. 8 H. 6. c. 7. how much he may expend by the year Crompt Juris 3. if he doubt the value of it 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 Freehold or have Freehold in ancient Demesne and all Women having Freehold or no Freehold and Men within the Age of One and twenty years c. Every Inhabitant choosing or electing in any other manner than is prescribed by the Statute to forfeit an hundred shillings St. 33 H 8. c. 1. Ireland half to the King and half to him that will sue for it If any man keeps a Houshold in one County Arc. Parl. 25. and remains in Service with another Family in another County yet he may be at the choosing of Knights of the Shire where he keeps his Family Crompton 's Juris 3. b. for it shall be said in Law a Dwelling in either of those Counties St. 23 H. 6. c. 15. Vid. Cromptons Jur. 3. b. 4 a. If the Mayor and Bayliffs or other Officer where no Mayor is shall return other than those which be chosen by the Citizens and Burgesses of the Cities or Boroughs where such Elections be shall incur and forfeit to the King Forty pounds and moreover shall forfeit to every person hereafter chosen Citizen or Burgess to come to Parliament and not by the same Mayor or Bayliff c. return'd or to any other Person that will sue for it Forty pounds CHAP. X. Who may be Elected 5 Eliz. c. 1. NO Knight Citizen 4 Inst 48. Sir Simon d'Ewes Jour 39 40. or Burgess can sit in Parliament before he hath taken the Oath of Supremacy and since the 7 Jac. 1. the Oath of Allegiance Because the words of the Writ for Election of Knights 4 Inst 10. c. were duos Milites gladiis cinctos c. it required an Act of Parliament that notable Esquires might be eligible Therefore the Statute says St. 23 H. 6. c. 15. The Knights of the Shires for the Parliament must be notable Knights or such Esquires or Gentlemen born of the same County as be able to be Knights Any man may be chosen Knight St. 18 Ed. 4. c. 2. in Ireland Citizen or Burgess tho' he be not dwelling within the same Every Knight St. 33 H. 8. c. 1. in Ireland Citizen and Burgess shall be resiant and dwelling within the Counties Cities and Towns Every Knight Citizen or Burgess taking it upon him and not chosen in the manner prescribed by the Act of Parliament to forfeit an hundred pounds Si home n'esteant Inhabitant Moor fo 551 n. 741. ne free del un Borough poit Eslier s'il voit seruer à lour Election ou nemy pur le Borough If a man be not an Inhabitant nor free of a Borough he may choose if he will serve at their Election or not
for the Borough By the Statute none ought to be chosen a Burgess of a Town Rush Coll. Vol. 1. 689. in which he doth not inhabit but the usage of Parliament is contrary But if Information be brought upon the said Statute against such a Burgess I think that the Statute is a good Warrant for us to give Judgment against him by Whitlock The King cannot grant a Charter of Exemption to any Man to be freed from Election of Knight 4 Inst 49. Citizen or Burgess of the Parliament A Person Outlawed in a Personal Cause may be a Burgess Towns Coll. 63 64. Vide John Smiths Ca. Sir Simon d'Ewes Jour 48. Col. 2. 480. Col. 1. Vide Sir Simon d'Ewes Jour 481. Col. 2. If Exception be taken to such an Election and an Outlawry alledged to disinable him the Stat. 23 Hen. 6. c. 15. will disinable most of this House for they ought to be Burgesses resident Tho' the Common Law doth disinable the Party Sir Simon d'Ewes Journal 482. Col. 1 yet the Priviledge of the House being urged that prevaileth over the Law A man Attainted Sir Simon d'Ewes Jour 482. Col. 1. Outlawed or Excommunicated or not lawfully elected if he be returned out of all doubt is a lawful Burgess A Knight Banneret 4 Inst 46. being no Lord of Parliament is eligible to be Knight Citizen or Burgess of the House of Commons being under the Degree of a Baron who is the lowest Degree of the Lord's House An Earl's Son may be a Member of the House of Commons Sir Simon d'Ewes Journal 244. Col. 2. One under the Age of One and twenty years is not eligible 4 Inst 47. Neither can any Lord of Parliament sit there till he be full One and and twenty years An Alien cannot be elected of the Parliament Ibid. because he is not the King's Liege Subject and so it is albeit he be made Denizon by Letters Patents c. But if an Alien be naturaliz'd by Parliament then he is eligible to this or any other Place of Judicature No Alien denizated ought to sit here Petyt 's Miscel Parl. 175. per Sir Edward Coke Resolved upon the Question Ibid. That the Election of Mr. Walter Steward being no natural born Subject is void and a Warrant to go for a new Writ None of the Judges of the Kings Bench or Common Pleas 4 Inst 47. or Barons of the Exchequer that have Judicial Places can be chosen Knight Citizen or Burgess of Parliament as it is now holden because they are Assistants in the Lord's House Yet read Parl Roll 31 H. 6. But any that have Judicial Places in other Courts Ecclesiastical or Civil being no Lords of Parliament Ibid. are eligible None of the Clergy Moor fo 783. n. 1083. 4 Inst 47. tho' he be of the lowest Order is eligible to be Knight Citizen or Burgess of Parliament because they are of another Body viz. of the Convocation The Clergy of the Convocation-House are no Part or Member of the Parliament Hakewel 59. Vide Fox's Book of Martyrs f 1639. A man Attainted of Treason or Felony 4 Inst 48. c. is not eligible For he ought to be magìs idoneus discretus sufficiens Mayors and Bayliffs of Towns Corporate are eligible 4 Inst 48. Vide contra Brook Abridg tit Parl. 7. At a Parliament holden 38 H. 8. it was admitted and accepted That if a Burgess of Parliament be made a Mayor of a Town Crompt 16. or have Judicial Jurisdiction or another is sick that these are Causes sufficient to choose others Any of the Profession of the Common Law 4 Inst 48. and which is in Practise of the same is eligible By special Order of the House of Commons the Attorny General is not eligible to be a Member of the House of Commons Ibid. Egerton Solicitor la Roign fuit command d'Attender en l'Vpper House Moor f. 551 n 741. Vide Sir S. d'Ewes Jour 441. Col 2 442. Col. 1. attend 3 Jours apres fuit eslie Burgess pur Reading Et fuit reteign quia il fuit primes attendant en l'Vpper Meson devant que il fuit eslie un Member de lower Meson Egerton the Queen's Solicitor was commanded to attend in the Vpper House and did attend three days afterward was chosen Burgess for Reading And he was retained because he was first attendant in the Vpper House before he was chosen a Member of the Lower House Onslow Solicitor esteant Burgess de lower Meson Moor f. 551 n 741. Vide Sir S. d'Ewes Jour 121. Col. 1 2. fuit command d'attend en upper Le lower Meson vient luy challenge demand d'aver luy fuit grant quia il fuit Member de lower Meson devant que il fuit command per Breve d'attend en le upper Onslow the Solicitor being a Burgess of the Lower House was commanded to attend in the Vpper The Lower House come and challenge him and demand to have him and it was granted because he was a Member of the Lower House before he was commanded by Writ to serve in the Vpper 18 Eliz. 1585. Sir Simon d'Ewes Jour 249. Col. 1. Concluded by the House That Mr. Serjeant Jeffreys being one of the Knights returned for Sussex may have Voice or give his Attendance in this House as a Member of the same notwithstanding his Attendance in the Upper House as one of the Queen's Serjeants for his Counsel there where he hath no Voice indeed nor is any Member of the same 23 Eliz. 1580. Id. 281. Col. 1. Popham Solicitor General upon demand made by the House was restored to them by the Lords because he was a Member of the House of Commons and they possessed of him before he was So licitor or had any Place of Attendance in the Vpper House No Sheriff shall be chosen for a Knight of Parliament Book of Extr. 411. Crompton 's Jur. 3. b. nor for a Burgess 1 Car. 1. 4 Inst 48. The Sheriff of the County of Buckingham was chosen Knight for the County of Norfolk and returned into the Chancery and had the Priviledge of Parliament allow'd to him by the Judgment of the whole House of Commons Vide de hoc Pro Con Sir Simon d'Ewes Journal 38 436 624 625. 1 Jac. 1. Sess 2. Scobel 96. Sir John Peyton Kt. returned the last Session and since chosen Sheriff Resolved upon the Question That he shall attend his Service here The personal Residence and Attendance of Sheriffs is required within their Bailywicks Rush Coll. Vol. 1. 684 685. during the Time of their Sheriffwick Mr. Walter Long being Sheriff of Wilts was after chosen Citizen for Bath and for that Offence was committed and fined viz. because he sate and served in Parliament Sir Andrew Noel Kt Towns Coll. 185. Vid. de hoc Sir Simon d'Ewes Jour 38. Col. 1 2.
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
Lex Parliamentaria OR A TREATISE OF THE LAW and CUSTOM OF THE PARLIAMENTS OF England By G. P. Esq With an APPENDIX of a Case in Parliament between Sir Francis Goodwyn and Sir John Fortescue for the Knights Place for the county of Bucks 1 Jac. 1. From an Original French Manuscript Translated into English 〈…〉 〈…〉 TO THE Most Supreme Court OF THE KINGDOM THE PARLIAMENT OF England The AUTHOR doth most humbly Dedicate this his small Treatise of the LAW and CUSTOM of PARLIAMENT THE PREFACE TO THE READER I Am very sensible that assoon as this Treatise is submitted to publick View 't will likewise meet with publick Censure and not a Few will be apt to start this Objection against it that it is only like an Old Piece in a New Dress These Things men will say have been done before the same Matter and much of the same Form are to be found in other Writers and this is but to obtrude upon the World 〈◊〉 vain Repetition of other mens Observations I must confess in part it is so and it must needs be so fo◠it is not to be expected that I shou'd presume to dictate Rules and Directions out of my own Fancy by which to govern or Influence Parliaments I must be beholding to Precedents and Records and tho' you shall find many of the same Notes scattered in my Lord Coke in Elsyng Hakewel Scobel and others yet I may adventure to say you shall no where meet them couched in so compendious and so useful a Method I have not only cull'd out of the before-mention'd and several other Authors what is proper and pertinent to this Design but I have gleaned from the Statutes Law-Books Reports and Histories whatsoever I met with in my inquisitive Re-searches beyond All that has been before placed in any Collection and which may be applicable to this Vndertaking All Members ought to be throughly skill'd in Parliamentary Affairs to know their own Laws and Customs their Powers and Priviledges that they may not at any time suffer Invasions to be made upon them by what plausible Pretences soever but as it is impossible for men of the most tenacious Faculties to keep all things constantly in their minds therefore this is to ease and refresh their Memories in case of any Forgetfulness and they may with a very little Trouble have always this in their Pockets which perhaps some may not be able without a great deal of Trouble to carry always in their Heads When he that is conversant in Study and Books cannot carry a Library about him he may easily recollect what is expedient for him from the Supplement of this Epitome Such as shall hereafter be promoted to that honourable Station of being Senators of the Kingdom will find it much more easie to receive short Information from this little Manual than to be obliged on every Occasion to consult the publick Records and turn over wearisome Volumes And they who do not expect Admission into a Parliament House will yet receive this as no unprofitable Diversion to observe and know the admirable method of Parliamentary Proceedings the Exactness and Decency of their Orders the Wisdom and Prudence of their Customs the Extent of their Powers and the Largeness of their Priviledges Wherefore without any Flattering or Arrogance to my self I shall make bold to tell you I am verily perswaded that what I have taken pains to collect from several Books and to digest into this small Compass for my own Convenience and Information will conduce to the general Satisfaction of all that read it which was one main Reason that induced me to publish it THE HEADS Of the several CHAPTERS Contained in this TREATISE CHAP. 1. THE Parliament Page 1 CHAP. 2. Power of Parliament Page 18 CHAP. 3. The House of Lords Page 41 CHAP. 4. Power of the House of Lords Page 53 CHAP. 5. House of Commons Page 61 CHAP. 6. Power of the House of Commons Page 66 CHAP. 7. Power of Parliament over their own Members Page 87 CHAP. 8. Elections of Members Page 104 CHAP. 9. Who may be Electors Page 113 CHAP. 10. Who may be Elected Page 115 CHAP. 11. Returns of Sheriffs and Amendments of Returns Page 125 CHAP. 12. Election of Speaker Page 130 CHAP. 13. Business of the Speaker Page 141 CHAP. 14. Orders to be observed in the House Page 148 CHAP. 15. Orders of the House Page 156 CHAP. 16. Passing of Bills Page 174. CHAP. 17. Concerning Committees Page 202 CHAP. 18. The Order and Power of Grand Committees Page 215 CHAP. 19. Concerning standing Committees Page 222 CHAP. 20. A Session of Parliament Page 229 CHAP. 21. The proper Laws and Customs of Parliament Page 235 CHAP. 22. Priviledge of Parliament Page 257 The Appendix Page 299 The NAMES of the AUTHORS quoted in this TREATISE ATkyns Sir Robert 's Argument of the Power and Jurisdiction of Parliament Arcana Parliamentaria Brook Brownlow Coke on Littleton Coke 's fourth Institute Coke 's Twelfth Report Crompton 's Jurisdiction c. Dyer Elsyng d'Ewes Sir Simond 's Journal Fortescue Hakewel Herbert 's Henry the Eighth Hollis Lord. Holling shead Hunt Hutton Kelwey Knyghton de Eventibus Angliae Leonard 's Reports Modus tenendi Parliamentum Moor 's Reports Nalson 's Collections Petyt 's Ancient Rights c. Petyt 's Miscellanea Parliamentaria Plowden Rushworth 's Collections Scobel Selden 's Judicature Smyth Sir Thomas Common-wealth of England Speed 's History Townsend 's Collections Turner 's Bankers Case Vaughan 's Reports CHAP. I. The Parliament IT is called Parliamentum Co sup Littleton 110. because every Member of that Court shou'd parler le ment speak his mind Mr. Lambard in his Archion maintains Sir R. Atkyns Argument c. p. 18. That the Parliament was used in the Saxons time and then consisted of the King Lords and Commons as in the Time of King Ina Ann. 712. Mr. Prinn says Mr. Prynn's Truth triumphing over Falshood Antiquity over Novelty fol. 69. Pttyt's Ancient Right c. p. 68. by all the ancient Precedents before the Conquest it is most apparent That all our pristine Synods and Councils were nought else but Parliaments That our Kings Nobles Senators Aldermen Wisemen Knights and Commons were usually present and voting in them as Members and Judges They had many Expressions and Phrases as Id. 98 99. Omnes Regni Nobiles Totius Regni Magnates Proceres Fideles Regni Vniversitas Regni Clerus Populus Communitas Regni Discretio totius Regni Generale Concilium Regni and many more varying in several Ages till at last they fixed on the word Parliamentum Vide many Records and Precedents touching this Matter in the Appendix to Petyt's Miscellanea Parliamentaria This Court is the highest Court of England Crompton's Juris p. 1. in which the Prince himself sits in Person and comes there at the Beginning of the Parliament and at the End and at any other Time when he pleaseth during the Parliament The Judges
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
King's Bench for removing of the Record in praesens Parliamentum c. When one sueth in Parliament to Reverse a Judgment in the King's Bench Id. 22. he sheweth in his Bill which he exhibiteth to the Parliament some Error or Errors whereupon he prayeth a Scire Facias The Proceeding upon the Writ of Error is only before the Lords in the Vpper House Id. Secundùm Legem Consuetudinem Parliamenti The Case between Smith and Busby in a Writ of Error 2 Nalson 716. decidable in no other Court but in Parliament If any Question be moved in Parliament for Priviledge 4 Inst 363. or Precedency of any Lord of Parliament it is to be decided by the Lords of Parliament in the House of Lords as all Priviledges and other Matters concerning the Lords House of Parliament are November 1641. Resolved by the House Nemine contradicente 2 Nalson 625. That it belongs to the House of Peers by the ancient Laws and Constitutions of this Kingdom to interpret Acts of Parliament in Time of Parliament in any Cause that shall be brought before them Julij 12 2 Nalson 381. 1641. An Order of the Lords for Relief of a Feme-Covert and her Children against a Husband refusing to Cohabit The Sentence pronounced by the Lords upon Sir Giles Mompesson Rushw Col. 27 28. and Sir Fancis Michel for Projectors Upon Complaints and Accusations of the Commons Selden's Judicature c 6 7. the Lords may proceed in Judgment against the Delinquents of what Degree soever and what Nature soever the Offence be For where the Commons complain the Lords do not assume to themselves Trial at Common Law Neither do the Lords at the Trial of a Common Impeachment by the Commons decedere de June suo for the Commons are then instead of a Jury And the Parties Answer and Examination of Witnesses are to be in their Presence or they to have Copies thereof and the Judgment is not to be given but upon their Demand which is instead of a Verdict so the Lords do only judge not try the Delinquent 28 Hen. 6. Tho' the Lords refused to commit the Duke of Suffolk upon the Commons complaint of him of a common Fame of Treason Id. 98. yet when they accused him of particular Treason he was Committed and brought Prisoner to his Answer But in Cases of Misdemeanors it is otherwise then the Party Accused whether Lord or Commoner answers as a Freeman The Lord within his Place Ibid. the Commoner at the Bar and they are not committed till Judgment unless upon the Answer of a Commoner the Lords find Cause to commit him till he find Sureties to attend c. lest he should fly Prout Jo. Cavendish upon the Lord Chancellor's demand of Justice against him for his false Accusation was Committed after his Answer until he put in Bail Anno 7 Rich. 2. and before Judgment In Cases of Misdemeanors only Id. 105. the Party accused was never deny'd Counsel If the Commons do only complain Id. 163. and do neither impeach the Party in Writing nor by Word of Mouth in open House nor demand Trial to be in their Presence in these Cases it is in the Election of the Lords whether the Commons shall be present or not In Complaints of Extortion Id. 173. and Oppression the Lords awarded Satisfaction to the Parties wronged which sometime was certain sometime general but alway secundùm non ultra Legem It appeareth plainly by many Precedents Id 176 177. That all Judgments for Life and Death are to be render'd by the Steward of England or by the Steward of the King's House and this is the Reason why at every Parliament the King makes a Lord Steward of his House tho' he hath none out of Parliament And at such Arraignment the Steward is to sit in the Chancellor's Place and all Judgments for Misdemeanors by the Chancellor or by him who supplies the Chancellor's Place In Case of Recovery of Damages Id. 187. or Restitution the Parties are to have their Remedy the Parliament being ended in the Chancery and not in any other inferior Court at the Common Law But the Lords in Parliament may direct how it shall be levied The Judges who are but Assistants to the Vpper House have leave from the Lord Chancellor or Keeper to sit covered in the House Sir Simon d'Ewes Jour 527. Col. 2. but are alway uncovered at a Committee 3 Car. 1. The Sentence of the Lords Spiritual and Temporal Petyt 's Miscel Parliament 212 213. pronounced by the Lord Keeper against Ensign Henry Reynde for ignominious Speeches uttered by him against the Lord Say and Seal and for his Contempt of the High Court of Parliament was thus 1. That he never bear Arms hereafter but be accounted unworthy to be a Soldier 2. To be imprisoned during Pleasure 3. To stand under the Pillory with Papers on his Head shewing his Offence at Cheapside London and at Banbury 4. To be fined at 200 l. to the King 5 To ask Forgiveness here of all the Lords of Parliament in general and of the Lord Say and his Son both here and at Banbury The Court of Star-Chamber ordered by the Lords to put the said Sentence in Execution Id. 213. out of Time of Parliament CHAP. V. House of Commons THE House of Commons was originally Sir R. Atkyns Argument c. p. 13. and from the first Constitution of the Nation the Representative of one of the Three Estates of the Realm and a part of the Parliament It is affirmed by Mr. Lambard Lambard 's Archeion 257 258. That Burgesses were chosen to the Parliament before the Conquest The ancient Towns call'd Boroughs Littleton Sect. 164. are the most ancient Towns that are in England for the Towns that now are Cities or Counties in old time were Boroughs and call'd Boroughs for that of such old Towns came the Burgesses to the Parliaments Knights of the Shire to serve in Parliament Sir Rob. Atkyns 18. and the paying Wages to them for their Service has been Time out of Mind and did not begin 49 Hen. 3. for that is within Time of Memory in a Legal Sense The House of Commons Id. 34. as a Member of the High Court of Parliament have been as ancient as the Nation it self and may in the Sense of Julius Caesar be accounted among the Aborigenes and that they have had a perpetual Being to speak in the Language of the Law a Tempore cujus Contraria memoria Hominum non existit and that they are therefore capable by Law together with the rest of the Three Estates in Parliament to prescribe and claim a share in all Parliamentary Powers and Priviledges I do not mean separately but in conjunction with those other Estates which they could not otherwise legally have done Petyt's Preface to the ancient Rights of the Commons c. p. 3. if their Original and
Benson a Member of the House Id. 596. having granted many Protections for Money taking for some sixteen seventeen forty shillings and twenty for ten shillings a piece Resolved upon the Question That Mr. Hugh Benson is unworthy and unfit to be a Member of this House and shall sit no longer as a Member of this House That he be forthwith sent for as a Delinquent by the Serjeant at Arms attending on this House Mr. Jervase Hollis expell'd the House for a Speech made with great strength of Reason and Courage Id. 710. but more Heat than the Times would bear was restored to his Place to sit as a Member of the House of Commons Sir William Widdrington and Sir Herbert Price sent to the Tower for bringing in Candles against the Desire of the House Id 272. 23 Eliz. 1580. Sir Simon d'Ewes Jour 309. Col. 2. Order'd and Resolved by the House That every Knight for the Shire that hath been absent this whole Session of Parliament without Excuse allowed by this House shall have a Fine of Twenty pounds set upon him to her Majesties Vse and upon every Citizen or Burgess for the like Ten pounds 1 Jac. 1. 1603. Petyt's Miscell Parl. 147. Mr. Lawrence Hide pretending Business of his Clients c. made known to the House that he would go out of Town and so took his leave in open Audience without the Assent or Leave of this House which was taxed and Mr. Speaker warranted to write to him It was also moved and resolved Id. 149. That Mr Speaker shou'd write another Letter to other Lawyers being gone down in the same Circuit where Mr. Lawrence Hide was advising them to attend it CHAP. VIII Concerning Elections of Members ALL Persons and Commonalties who shall be Summon'd to the Parliament 5 R. 2. St. 2. c 4. shall come as hath been accustomed of old time and he that cometh not having no reasonable Excuse shall be amerced and otherwise punish'd The King sendeth Writs to the Sheriffs of every Shire Arc. Parl. 4 Vide the Form of the Writ Sir Simon d'Ewes Jour 37. to admonish the whole Shire to choose two Knights of the Parliament in the Name of the Shire to hear and reason and to give their Advice and Consult in the Name of the Shire and to be present at the day At every County Hakewel 47. Vid. Crompton's Juris 3. after the Delivery of the Parliament-Writ to the Sheriffs Proclamation shall be made in the full County of the Day and Place of the Parliament and that all Men shall attend for the Election of the Knights for the same County for the Parliament Where the Parliament Writ speaks de qualibet Civitate Comitatûs illius Arc Parl. 22 Vid. Cromp. 3. this intended where the City is not a County in it self If it be the Writ shall be directed to them c. as it is to Sheriffs of other Countries 28 Eliz. 1586. Resolved That the House of Commons are the only competent Judges concerning Elections Sir Simon d'Ewes Jour 396 397. which are duly made which not 18 Jac. 1. Petyt's Miscell Parl. 111. The Mayor of Winchelsey for mis-behaving himself at the Election of Parliament-men for their Town and making a false Return ordered to be committed to the Serjeant and to make a Submission at the Bar and an Acknowledgment in the Town before the new Election 20 Jac. 1. Id. 112. The Mayor of Arundel for mis-behaving himself in the Election by putting the Town to a great deal of Charges not giving a due and general Warning and packing a number of Electors ordered to be sent for and adjudged to pay the Charge to be set down by three of the Members Likewise to every City and Town Arc. Parl. 4. Smith 's Common-wealth 76. which of ancient Time hath been wont to find Burgesses of the Parliament so to make Election that they might be present there at the first day of the Parliament In 7 Hen. 4. 4 Inst 10. 2 Inst 169. it is enacted That Elections shou'd be freely and indifferently made notwithstanding any Prayer or Commandment to the contrary sine Praece without any Prayer or Gift and sine Praecepto without Commandment of the King by Writ or otherwise or of any other The King 4 Inst 4. de advisamento Concilii resolving to have a Parliament doth out of the Court of Chancery send out Writs of Summons at the least Forty days before the Parliament begin The third Estate is the Commons of the Realm 4 Inst 1. Crompton's Juris 2 b. whereof there be Knights of the 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 These Represent all the Commons of the whole Realm Ibid. are trusted for them and are in Number at this Time 493. Now above 500. Whosoever is not a Lord of Parliament Id. 2. and of the Lord's House is of the House of Commons either in Person or by Representation partly coagmentativè and partly representativè Every Member of the House being a Counseller Id. 3. shou'd have three Properties First to be without Malice or Envy Secondly to be constant and inflexible Thirdly to be of ripe and perfect memory as appeareth in a Parliament Roll Rot. Parl. 3 H. 6. n. 3. The Knights of the Shire are chosen by all the Gentlemen and Teoman i. e. Freeholders of the Shire Arc. Parl. 5. Smyth 's Common-wealth 77. present at the Day assign'd for the Election The Voice of any absent can be counted for none Concerning the Writs for Summoning the Knights and Burgesses and the Return of the Sheriff Vide Crompton's Juris 1 2. Every English-man is intended to be there present Arc. Parl. 3. either in Person or by Procuration and Attorny and the Consent of the Parliament is taken to be every mans Consent These meeting at one Day Id. 10. Smyth 's Common-wealth 77. the two have most of their Voices are chosen Knights of the Shire for that Parliament Likewise by the Plurality of the Voices of the Citizens and Burgesses the Burgesses are elected The Election ought to be in full County 4 Inst 48. between Eight and Nine says the Statute of 23 Hen. 6. c. 15. No Election can be made of any Knight of the Shire but between Eight and Eleven of the Clock in the Forenoon says the Lord Coke But if the Election be begun within the Time and cannot be determined within those hours the Election may be made after Any Election or Voices given Id. 49. before the Precept be read and published are void and of no Force for the same Electors after the Precept read and published may make a new Election and alter their Voices Secundùm Legem Consuetudinem Parliamenti For
624. Col. 2. Sheriff of Rutland returned himself Knight and adjudged a void Return and a Warrant ordered for a new Election For said Serjeant Harris we know in Law that a man cannot make an Indenture to himself no more can he here between himself and the County for there are required two Persons Yet Sir Edward Hobby said That the House might well receive him and vouched a Precedent when the Bayliffs of Southwark returned themselves Burgesses and were received The Fee for the Knight of any County is 4 Inst 46. four shillings per diem and every Citizen or Burgess is to have two shillings per diem Where one Person is chosen and returned to serve in several Places Scobel 18. Vide Sir S. d'Ewes Jour passim it is in his Election to make his Choice in the House in his own Person for what Place he will serve and wave the other Election so as a Writ may issue for a new Election that the number may be full CHAP. XI Returns of Sheriffs c. And Amendments of Returns COncerning the Punishment of Sheriffs for their Negligence in returning of Writs 5 R. 2. Stat. 2. c. 4. or for leaving out of their Returns any City or Borough which ought to send Citizens and Burgesses See the Stat. Every Sheriff St. 8 H. 6. c. 7. 23 H. 6. c. 15. Vid. Cromton's Juris 3. Hakewel 48. who doth not make true Return of Elections of Knights Citizens and Burgesses to come to Parliament shall forfeit an hundred pounds to the King and an hundred pounds to the Party injured and be imprison'd for a Year without Bail or Mainprize And every Mayor or Magistrate of a Town so oftending shall pay Forty pounds to the King and Forty pounds to the Party This Action to be within Three months after the Parliament commenced or by any other man who will If he so do not Hakewel 49. Vid. Crompton's Juris 3. b. and prosecute his Suit with Effect and without Fraud any other man who will may have the said Suit for the said hundred pounds as the Knight had and Costs of Suit also shall be awarded to the said Knight or any other who will sue in his behalf The Sheriff shall make a good Return of his Writ Hakew. 51. and of every Return of the Mayor and Bayliff or Bayliffs where no Mayor is to him made The Burgesses of Leskard in Cornwal being elected Towns Coll. 63. the Town refused to deliver up their Indenture to the Sheriff but the Party elected made his Indenture and deliver'd it to the Clerk of the Crown who filed it with the rest of the Indentures returned by the Sheriff the Sheriff having endorsed it upon his Writ but this Indenture was never executed by the Sheriff nor returned and yet this Return was held by the Committees to be good Jan. 1641. Ordered 2 Nalson 870. That the High-Sheriff of the County of Sussex who has return'd two Indentures for the Town of Arundel shall be summon'd to appear here at the Bar to amend his Return 35 Eliz. 1592. Sir Simon d'Ewes Jour 490. Col. 2. It was said by the Speaker No Return can be amended in this House For the Writ and the Return are in Chancery and must be amended there Every Sheriff or other Officer St. 33 H. 8. c. 1. in Ireland returning any Knight Citizen or Burgess chosen in any other manner than is prescribed in the Statute to forfeit an hundred pounds If one be duly elected Knight 4 Inst 49. It cites in the Margin Rot. Parl. 5 H. 4. n. 38. Citizen or Burgess and the Sheriff return another the Return must be reformed and amended by the Sheriff and he that is duly elected must be inserted for the Election in these Cases is the Foundation and not the Return 18 Jac. 1. Scobel 115. The Sheriff of Leicestershire having returned Sir Thomas Beaumont upon Report from the Committee for Elections that Sir George Hastings was duly chosen the Sheriff was ordered to return Sir George Hastings to the Clerk of the Crown and he to accept it and file it 21 Jac. 1. Ibid. Upon Report from the Committee of Priviledges That in the Election of Mr. John Maynard for Chippingham John Maynard was chosen but by a Mistake Charles was afterward written in stead of John It was Resolved The Return shou'd be amended without a new Writ and that the Bayliff shou'd do it and not the Clerk of the Crown and that it shou'd be sent down to the Bayliff in the Country and he to Return John Maynard Esq the first Burgess 1 Febr. 1640. It being Resolved Ibid. That the Election of Mr. Erle for one of the Burgesses of Wareham is a good Election Ordered That the Officer who was the Officer when the Return was made or his Deputy or the Electors shou'd amend the Return But the next day it was Ordered That Edward Harbin the late Mayor of Wareham 's Deputy shou'd come to the Bar of the House and amend the Return 20 Febr. 1640. Id. 116. The Bayliff of Midhurst in Sussex came to the Bar being sent for by Order of the House and amended one of the Indentures of Return of Burgesses for that Town and the other was taken off the File If a Sheriff shall return one for a Knight of the Shire Sir Simon d'Ewes Journ 283. Col. 2. who was unduly or not at all elected yet he that is so return'd remains a Member of the House till his Election be declared void CHAP. XII Election of the Speaker THE Speaker is he that doth prefer and commend the Bills exhibited into the Parliament Arc. Parl. 3. Smyth's Common-wealth 75. and is the Mouth of the Parliament It is true 4 Inst 8. Smyth's Common-wealth 75. the Commons are to choose their Speaker but seeing that after their Choice the King may refuse him for avoiding of expense of Time and Contestation the Use is as in the Conje d'Eslier of a Bishop that the King doth name a difereet and learned Man whom the Commons elect But without their Election no Speaker can be appointed for them 4 Inst 8. because he is their Mouth and trusted by them and so necessary as the House of Commons cannot sit without him And therefore a grievous Sickness is a good Cause to remove the Speaker and choose another Id. 8. So in 1 Hen. 4. Sir John Cheyny discharged and so William Sturton So in 15 Hen. 6. Sir John Tyrrel removed The first Day each Member is called by his Name Modus tenend Parl. 35. every one answering for what Place he serveth that done they are willed to choose their Speaker who tho' nominated by the King's Majesty is to be a Member of that House Their Election being made he is presented by them to the King sitting in Parliament 35. So Sir Thomas Gargrave 1 Eliz. So Christopher Wray 13 Eliz. So Robert Bell
19. 1592. Towns Coll. 51. 35 Eliz. After the Names of the Knights Citizens and Burgesses were read and declared to the Clerk of the Crown and entred in his Book they entred into the House The House being set Ibid. Vide Sir S. d'Ewes Jour passim the Earl of Derby High Steward for this Parliament came into the House to take their Oaths All being removed into the Court of Requests the Lord High Steward sitting at the Door call'd the Knights and Burgesses of every County according to the Letters of their Names in the Alphabet Alphabetically every one answered as he was call'd and having answer'd departed thence to the Parliament House Door and there took the Oath of Supremacy given him by one of the Queens Privy Counsellers The Fee for entring his Name into the Serjeant's Book is Two shillings Towns Coll. 51. the Rewards to the Door-Keepers Three shillings and eight pence the Fee for returning the Indenture Two shillings Febr. 7. Id. 15. 1588. 31 Eliz. This Day the House was call'd over and all those that did then sit in the House and were present at the calling of the same did thereupon severally answer to their Names and departed out of the House as they were called 31 Eliz. 1588. Sir Simon d'Ewes Jour 432. Col. 2. By Consent of the House upon the motion of Sir Edward Hobby admonition was given by Mr. Speaker That Speeches used in this House by the Members of the same be not any of them made or used as Table talk or in any wise delivered in Notes of writing to any person or persons whatsoever not being Members of this House for that they are the Common-Councel of the Realm CHAP. XV. Orders of the House 2 Maij 1610. Scobel 32. A Member speaking and his Speech seeming impertinent and there being much hissing and spitting it was conceived for a Rule That Mr. Speaker may stay impertinent Speeches 18 Maij 1604. Ibid. It was Resolved That eight ingrossed Bills should be read the next day half an hour after eight The next day about that Time a Member entring into a long Discourse De merâ Fide solâ Fide c. was interrupted and the Question offered Whether he shou'd go on in respect of the Order But it was agreed for a Rule That if any man speak not to the Matter in Question the Speaker is to moderate April 1604. Idem 31. Vid. Towns Coll. 276. He that digresseth from the Matter to fall upon the Person ought to be suppressed by the Speaker 17 April 1604. Ibid. If any superfluous Motion or tedious Speech be offer'd in the House the Party is to be directed and order'd by the Speaker No reviling or nipping words must be used Smith's Common-wealth 85 86. for then all the House will cry It is against the Order And if any speak unreverently or seditiously against the Prince or the Privy Council I have seen them not only interrupted but it hath been moved after to the House and they have sent them to the Tower If any man speak impertinently Scobel 33. or beside the Question in hand it stands with the Orders of the House for Mr. Speaker to interrupt him and to know the Pleasure of the House Whether they will further hear him 24 Jan. 23 Eliz. Mr. Carleton endeavouring to speak contrary to the Sense of the House Id. 31. Vid. Sir S. d'Ewes Jour 284. was interrupted and offering to speak again urging it was for the Liberty of the House the Speaker and the House did stay him When a Motion has been made Id. 21. the same may not be put to the Question until it be debated or at least have been seconded by one or more Persons standing up in their Places and then the same may be put to the Question if the Question be call'd for by the House or their general Sense be known which the Speaker is to demand unless any Member stand up to speak When a Motion has been made that Matter must receive a Determination by the Question Ibid. or be laid aside by the general Sense of the House before another be entertain'd 28 June 1604. Ibid. A Motion being made another interposed a Speech tending to another Business but it was answer'd That there was no Precedent for that Speech to be used before the other Motion which was made before had received an Answer and an End And the House did accordingly determine the first Motion in the first Place 4 Dec. Ordered Scobel 22. That till the Business in Agitation be ended no new Motion of any new Matter shall be made without leave of the House If the Matter moved do receive a Debate pro contra Ibid. in that Debate none may speak more than once to the Matter and after some Time spent in that Debate the Speaker collecting the Sense of the House upon the Debate is to reduce the same into a Question which he is to propound to the end the House in their Debate afterward may be kept to the Matter of the Question if the same be approved by the House to contain the Substance of the former Debate After such Question is propounded Ibid. any Member may offer his Reasons against that Question in whole or in part which may be laid aside by a general Consent of the House without a Question put But without such general Consent Scobel 23. no part of the Question propounded may be laid aside or omitted and tho' the general Debates run against it yet if any Member before the Question put without that part stand up and desire that such Words or Clause may stand in the Question before the main Question is put a Question is to be put Whether those Words or Clause shall stand in the Question The like Method is observed when any other Alteration is debated upon Ibid. to be made in a Question propounded but upon putting a Question for such Addition Alteration or Omission any Person who hath formerly spoken to the Matter of the Question may speak again to shew his Reasons for or against such Alteration Addition or Omission before such Question be put When the Speaker the House calling for a Question is putting the same Ibid. any Member that hath not spoken before to the Matter may stand up before the Negative be put 13 Junij 1604. Ibid. A Bill touching a Subsidie of Tunnage and Poundage having been formerly upon a third Reading recommitted was return'd and a Proviso being tendred for Chester which was twice read the Question was put for Commitment in the Affirmative but before the Negative was put one stood up and spoke to it which was admitted for orderly because it is no full Question without the Negative part be put as well as the Affirmative Every Question is to be put first in the Affirmative Id. 24. and then the Negative to which question every
and Courts of Justice are always Grand Committees of the House which are to sit in the Afternoon upon such days as the House doth appoint to them respectively The Committee for Trade hath sometimes been a select Committee Ibid. particularly named and all such Members as shou'd come to it to have Voices as in Nov. 1640. Sometimes a Grand Committee of the whole House as 21 Jac. 1. The Committee for Priviledges and Elections hath always had the Precedence of all other Committees Id. 10. being commonly the first Committee appointed and ordinarily the first day after or the same day the Speaker did take his Place This Committee is constituted of particular Numbers named by the House Ibid. 21 Jac. 1. Ibid. Upon naming a Committee for Priviledges and Elections a Motion was made that all that come shou'd have Voices but insisted on to be contrary to all former Precedents A Question was put Whether all that come should have Voices at the Committee and pass't in the Negative Another Question being put Whether the Persons nominated only shou'd be of the Committee it was resolved in the Affirmative ters questionable touching Priviledges and Returns and to acquaint the House with their Proceedings from Time to Time so as Order may be taken according to the Occasion and agreeable with ancient Customs and Precedents And to the end these Questions may be speedily determin'd Ibid. and the House may know their Members Days are usually assign'd beyond which there shall be no Questioning a former Election So in the Parliament 21 Jac. 1. it was order'd Ibid. That all Petitions about Elections and Returns shou'd be preserred to the Committee of Priviledges within a Fortnight from that day or else to be silenced for that Session 16 Apr. 1640. Id. 13. Order'd That those who would question Elections shou'd do it within ten days by Petition 6 Nov. 1640. Ibid. Order'd That all such as will question Elections now return'd shall do it in fourteen days and so within fourteen days after any new Return Some Questions have been where there have been double Indentures return'd for several Persons for the same Place whether all or any or which shall sit Id. 13. The general Rule and Practise hath been in such Case that neither one nor other shall sit in the House till it were either decided or order'd by the House 17 Apr. 19 Jac. 1. Order'd Id. 16. That no Petition shall be received by a Committee but openly at a Committee and read at the Committee before the Party go that preferred it and the Parties Name that preferred it be subscribed In the Parliament 21 Jac. 1. Id. 17. Resolved That all Affidavits to be taken in any Court concerning Elections Returns or any Thing depending thereupon shou'd be rejected and not hereafter to be used Tho' the Committee examine not upon Oath Ibid. yet they may punish any that shall testifie untruly of which there was an Instance in the Case of one Damport Sir Francis Popham Id. 14. being return'd a Burgess for Chippenham by one Indenture and another Person return'd for the same Place by another Indenture it was moved he might be admitted into the House till the Matter were determin'd But he was not so admitted and it was referred to the Committee for Priviledges 21 Jac 1. Id. 15. Two Indentures were return'd for Southwark the one returned Yarrow and Mingy the other Yarrow and Bromfeild Upon a Report from the Committee of Elections it was Resolved That the Election and Return for Yarrow shou'd stand good and that he shou'd sit in the House 22 Martij 21 Jac. 1. Ibid. Sir John Jackson and Sir Thomas Beaumont were both return'd for one Bargesses Place for Pontefract Order'd That the Committee take the Election into consideration to morrow and that in the mean time the Parties forbear to come into the House CHAP. XX. A Session of Parliament THE Passing of any Bill 4 Inst 27. or Bills by giving the Royal Assent thereto or the giving any Judgment in Parliament doth not make a Session but the Session doth continue till that Session be prorogued or dissolved And this is evident by many Presidents in Parliament ancient and late 14 Ed. 3. Ibid. On the first Monday a Grant of c. being given to the King was made a Statute and pass't both Houses and had the Royal Assent thereunto yet after this the Parliament continued and divers Acts made and Petitions granted 3 Rich. 2. Ibid. Declared by Act of Parliament That the killing of John Imperial Ambassador of Genoa was High Treason yet the Parliament continued long after and divers Acts made c. 7 Hen. 4. Ibid. An Act made for certain Strangers departing the Realm c. yet the Parliament continued till Dec. 8 Hen. 4. 1 Hen. 7. Ibid. The Attainders of such as were returned Knights Citizens and Burgesses were reversed by Act of Parliament before they could sit in the House of Commons and the Parliament continued and divers Acts made 33 Hen. 8. Ibid. At the beginning of the Parliament the Bill of Attainder against Queen Catherine Howard pass't both Houses yet the Parliament continued and divers Acts pass't Tho' Bills pass both Houses Ibid. and the Royal Assent be given thereto there is no Session until a Prorogation or a Dissolution The Diversity between a Prorogation and an Adjournment Ibid. or Continuance of the Parliament is that by the Prorogation in open Court there is a Session and then such Bills as pass't either or both Houses and had no Royal Assent to them must at the next Assembly begin again Every several Session of Parliament is in Law a several Parliament Ibid. Hutton 61. Brook tit Parl. 86. but if it be but adjourned or continued then there is no Session and consequently all things continue in the same state they were in before the Adjournment or Continuance The Titles of divers Acts of Parliament be 4 Inst 27. At the Session holden by Prorogation or by Adjournment and Prorogation but never by Continuance or Adjournment tantùm And the usual Form of Pleading is ad Sessionem tentam c. per Prorogationem The Adjournment or Continuance is much more beneficial for the Commonwealth for expediting of Causes 4 Inst 28. than a Prorogation The King desired the House of Commons not to make a Recess in the Easter Holy-days This Message for Non-recess was not well-pleasing to the House Sir Robert Philips first resented it and took Notice Rush Coll. 537. that in 12 and 18 Jac. 1. upon the like Intimation the House Resolved It was in their power to adjourn or sit Hereafter said he this may be put upon us by Princes of less Piety Let a Committee consider hereof and of out Right herein and to make a Declaration Sir Edward Coke said The King makes a Prorogation but this House Adjourns
a Member of the same and being either in Service of Ambassage or else in Execution or visited with Sickness a shall not in any ways be amoved from their place in this House nor any other to be during such Time of Service Execution or Sickness elected 31 Eliz. 1588. Id. 439. It was assented to by the whole House That none after the House is set do depart before the rising of the same House unless he do first ask leave of Mr. Speaker on pain of paying six pence to the Vse of the Poor If a Lord depart from Parliament without license 4 Inst 44. it is an Offence done out of the Parliament and is finable by the Lords and so it is of a Member of the House of Commons he may be fined by the House of Commons It doth not belong to the Judges to judge of any Law 4 Inst 50. Rot. Parl. 31 H. 6. n. 27. Custom or Priviledge of Parliament Cardinal Wolsey coming to the lower House of Parliament Herbert's Hen 8.136 told them That he desired to reason with them who opposed his Demands but being answered That it was the Order of that House to hear and not to reason but among themselves the Cardinal departed It any sit in the House Scobel 84. who are not returned by the Clerk of the Crown in Chancery it is accounted a great Crime and severely punish'd 5 Martij 1557. Ibid. 4 5 Ph. Mar. For that Christopher Pern affirmed That he is return'd a Burgess for Plimpton in Devon and hath brought no Warrant thereof to the House nor is return'd hither by the Clerk of the Crown by Book or Warrant he is awarded to be in the Custody of the Serjeant till the House have further consider'd 13 Eliz. 1571. The House was call'd and thereupon Edward Lewknor Sir Simon d'Ewes Jour 156. Col. 1 2. John Bullock Nicholas Plum-tree Edward Goodwyn and John Garnons were commanded to attend the Order of this House to morrow for that the House being this day called they had entred into the House and had not as then been returned by the Clerk of the Crown except Garnons whose Case is for that he is said to be Excommunicated 9 Jan. 1562. Scobel 85. For that it seem'd to the House being very full that there were a greater Number than was return'd therefore the Names were immediately call'd over and as they were call'd departed out of the House 7 Febr. 1588. Ibid. The House was call'd and every one answer'd to his Name and departed out of the House as they were call'd Chiefly the Calling of the House is Ibid. to discover what Members are absent without leave of the House or just Cause in which case Fines have been imposed If the House be call'd Ibid. the manner has been to call over the Names and each Member to stand up at the mention of his Name uncovering his head Such as are present are marked and the Defaulters call'd over again the same day sometimes the day after sometimes summon'd sometimes sent for by the Serjeant Upon Calling the House Ibid. if the Person be present he riseth up bare-headed and answereth if absent he is either excused and so entred Licentiatur per speciale Servitium excusatur ex gratiâ or aegrotat or if none excuse him he is entred Desicit That no man may sit in the House Id. 86. Vide Sir S. d'Ewes Jour passim till he be legally return'd appears by several Instances of Persons who were not Members and for coming into the House were brought to the Bar and some committed and some sworn before they departed to keep secret what they had heard there 5 Apr. 1571. Sir Simon d'Ewes Jour 156. Col. 1. 13 Eliz. Thomas Clerk and Anthony Bull of the Inner Temple London Gent. were by this House committed to the Serjeants Ward until further Order shou'd be taken with them for that they presumed to enter into this House and were no Members of the same as themselves at the Bar confessed 18 Eliz. 1575. Id. 248. Col. 1. Charles Johnson of the Inner Temple Gent. committed to the Serjeants Ward till further Order be taken by this House for coming into this House this present day the House sitting confessing himself to be no Member of this House 27 Eliz. 1584. Charles Morgan Gent. Servant to Sir George Cary Id. 334. Col. 1. Knight of a Shire being himself no Member of this House was found to be standing within the House next to the Door and as it was thought of meer ignorance and simplicity without any evil purpose or meaning and therefore was committed by Order of the House to the Serjeants Ward 30 Nov. eodem An. â—ichard Robinson being found to be sitting in the House by the space of two hours while several Speeches were made was stript to his Shirt Ibid. Col. 1. and his Pockets searched and being brought to the Bar was censured by the House after taking the Oaths to suffer Imprisonment in the Serjeants Ward till Saturday next and then having sworn to keep secret what he had heard to be released 28 Eliz. 1586. Id. 394. Col. 2. Edmond Moor and John Turner presumed to come into the House being no Members and upon their Submission discharged because it was done of simplicity and meer ignorance Id. 394. Col. 2. So John Legg Vide id 486. Col. 2. So Matthew Jones Id. 511. Col. 1. So William Hanner Id. 288. Col 2. Petitions are usually presented by Members of the same County Scobel 87. If they be concerning private Persons they are to be subscribed and the Persons presenting them call'd in to the Bar to avow the Substance of the Petition especially if it be a Complaint against any 18 Nov. 1640. Ibid. One Vivers presented a Petition in the Name of the Mayor Aldermen Burgesses and other Inhabitants of Banbury was call'd in and did acknowledge the Hand to the Petition to be his and that he did deliver it by Order and on behalf of the Town of Banbury and thereupon it was committed The like in the same Parliament Ibid. upon reading the Petition of one Ward of Salop and likewise on reading the Petition of Henry Hogan Tho' freedom of Speech and Debates be an undoubted Priviledge of the House Scobel 72. yet whatsoever is spoken in the House is subject to the Censure of the House Tho' the Committee examine not upon Oath Id. 17. yet they may punish any that shall testifie untruly In the Parliament Hakewel 93. if the greatest part of the Knights of the Shire do assent to the making of an Act of Parliament and the lesser part will not agree to it yet this is a good Act or Statute to last in perpetuum and that the Law of Majoris partis is so in all Councels Elections c. both by the Rules of the Common Law and the Civil Tenants d'ancient Baronies
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
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
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.
Vide Sir Simon d'Ewes Jour 212. for publishing and discovering the Conferences of the House and writing a Book to the dishonour of the House was upon due Examination secundùm Legem Consuetudinem Parliamenti adjudged by the House of Commons to be committed to the Tower for six Months fined at Five hundred Marks and expelled the House 23 Apr. 1 Mariae Ibid. Call'd Monington by Scobel 113. Muncton struck William Johnson a Burgess of B. return'd into the Chancery of Record for which upon due Examination in the House of Commons it was resolved That secundum Legem Consuetudinem Parliamenti every man must take Notice of all the Members of the House returned of Record at his peril And the House adjudged Muncton to the Tower Injuries offer'd to the Members Scobel 113. and their Servants during the Session have been usually punish'd by the House upon Complaint 29 Febr. 1575. Ibid. Vide Sir Simon d'Ewes Jour 251. Col. 2. One Williams for assaulting a Burgess of this House was upon complaint sent for by the Serjeant and brought to the Bar and committed to the Serjeant's Ward 28 Nov. 1601. Ibid. Complaint being made by Mr. Fleetwood a Member of the House that one Holland a Scrivener and one Brooks his Servant had evil entreated and beaten the Servant of the said Mr. Fleetwood in his Presence they were both sent for by the Serjeant and brought to the Bar and for the said Offence committed for five days to the Serjeant 12 Febr. 18. Id. 114. Jac. 1. Mr. Lovel a Member of the House informed That one Darryel threatned his Person that for a Speech spoken by him in the House he shou'd be sent to the Tower during the Parliament or presently after Darryel was sent for by the Serjeant to answer it to the House and upon Testimony of it he was committed to the Serjeant till Thursday following and then to acknowledge his Fault or to be committed to the Tower 16 Junij 1604. Ibid. Complaint being made of one Thomas Rogers a Currier dwelling in Coleman-street for abusing Sir John Savil in slanderous and unseemly Terms upon his Proceedings at a Committee in the Bill touching Tanners c. he was sent for by the Serjeant at Arms to the Bar to Answer his Offence Sir William Aston Sheriff of London Rush Coll. 656. Vid. Petyt's Miscell Parl. 108. Acton's Case being Examined before the Committee concerning some Matters about the Customs and not giving that clear Answer which he ought and as the House conceived he might have done was therefore committed to the Tower of London And a Question was made in the House at the Time Whether the House had at any Time before committed a Sheriff of London to Prison To which Mr. Selden made Answer That he could not call to mind a Precedent of sending one Sheriff of London to Prison but he well remembred a Precedent of sending both the Sheriffs of London to the Tower and instanced the Case One Trussel being in Execution in one of the Compters in London Towns Coll. 20. Vide Sir Simon d'Ewes Jour 438. Col. 1. was Order'd to be brought before the Committee with his Keeper without Danger of an Escape in the Execution 4 Novemb. 1640. Scobel 16. Upon a Report from the Committee for Priviledges That several Indentures were returned for Burgesses for the Borough of Bossinny in the County of Cornwal the one by the Mayor of the Town the other promiscuously The Committee were of Opinion upon view of the bare Indenture That Sir Charles Harbord who was return'd by the Mayor was well return'd but the House declar'd he shou'd not sit till the Election were decided 44 Eliz. 1601. Towns Coll. 297. The Course hath been if the House hath been desirous to see any Record the Speaker shou'd send a Warrant to the Lord Keeper to grant a Certiorari to have the Record brought into the House Decemb. 1641. Ordered 2 Nalson 753. That Mr. Speaker do write his Letters to the Mayor of Berwick enjoyning him to require such Papists and suspected Persons as reside there or make their constant Repair thither forthwith to depart the Town and to tender the Oaths of Supremacy and Allegiance to such as shall refuse and to proceed against them according to Law and to require him that a Guard be kept at the several Gates and that the Arms of that Place be in readiness The like to the Mayor of Newcastle and of Hull The Commons upon Imprisonment of their Members Rush Coll. 358. and the Offence taken by the King resolved to proceed in no other Business till they were righted in their Liberties Dec. 1641. 2 Nalson 732. Mr. Long a Justice of the Peace sent to the Tower for setting a Guard without Consent of the Parliament A Knight 4 Inst 12. Citizen or Burgess of the House of Commons cannot by any Means make a Proxy because he is elected and trusted by Multitudes of People If the Commons accuse a Commoner of Misdemeanors Selden 's Jud. 101. in such a State of Liberty or Restraint as he is in when the Commons complain of him in such he is to answer Sir Francis Michel Seld. Jud. Ibid. and Sir John Bennet were both committed by the Commons before their Complaint to the Lords and so they answered as Prisoners but that in a sort may be call'd Judicium parium suorum If the Commons impeach any man they are in loco proprio Id. 124. and there no Jury ought to be only Witnesses are to be examined in their Presence or they to have Copies thereof and the Judgment not to be given until the Commons demand it The Presence of the Commons is necessary at the Parties Answer Id. 158. and Judgment in Cases Capital Now one Reason for the King's Assent and the Commons Presence in such Judgments may be this Both King and People are to be satisfied for the Death of the Subject therefore all Trials for Life and Death are publick in the full Assembly of the Court and how can it be said in full Parliament when the Commons one of the States are absent Tho' the Commons are not present when the Lords do consider of the Delinquents Answer Id. 159. and the Proofs and do determine of their Judgment yet at their Return to their own Assembly they consider among themselves if the Proceedings were legal and may come again and shew it and require a Re-hearing of the Cause as they did at the Judgment of the Duke of Clarence in 18 Ed. 3. In Judgment on Misdemeanors Id. 162. the Presence of the Commons is not necessary unless they Impeach a Delinquent prout 50 E. 3. and then they are present at all the Answers of those whom they Impeach and demanded Judgment When the Lords had determin'd one part of the Complaint of the Commons against William Ellis touching the wrong done to certain Scottish
Dec. 2. 1640. the Debate about the Election of two Knights was divided into two Questions No Member in his Discourse in the House may mention the Name of any other Member then present Id. 30. Vide Smyth's Common-wealth 85. but to describe him by his Title or Addition as that Noble Lord that worthy Knight or by his Office as Judge Serjeant Gentleman of the long or short Robe or by his Place as the Gentleman near the Chair near the Bar on the other side or that Gentleman that spake last or last save one or the like During any Debate any Member Memorials ut supr 30. tho' he have spoken to the Matter may rise up and speak to the Orders of the House if they be transgressed in Case the Speaker do not but if the Speaker stand up he is first to be heard and when he stands up the other must sit down till the Speaker sit down But if any Person rise up to speak to the Orders of the House in the midst of a Debate Ibid. 31. he must keep within that Line and not fall into the Matter it self if he do he may be taken down by the Speaker or any other Member calling to the Orders of the House While a Member is speaking to a Debate or Question Id. 31. Vid. Towns Coll. 205. he is to be heard out and not taken down unless by Mr. Speaker as in some Cases he may or that he speak of such Matter as the House doth not think fit to admit A Matter upon Debate having been once finally determined by a Question Memorials in Hakewel 33. ought not to be again brought into Dispute 27 Martij 1604. Ibid. Sir Edward Coke Attorny General and Dr. Hone bring a Message from the Lords desiring a Conference about the Case of Sir Francis Goodwyn Vide this Argument at large in the Appendix Upon this Message it was argued That now the Judgment having pass't the House it could not nor ought to be reversed by them and upon the Question it was resolv'd There shou'd be no Conserence 2 Apr. 1604. Ibid. A Vote having passed some days past That no Conference shou'd be admitted with the Lords the same Question was again moved but was carried in the Negative And it was then urged for a Rule That a Question having been once made and carried in the Affirmative or Negative cannot be questioned again but must stand as the Judgment of the House 4 Junij 1604. Id. 45. Agreed for a Rule If two stand up to speak to a Bill he that would speak against the Bill if it be known by Demand or otherwise is to be first heard 11 Nov. 1640. Id. 69. It is declared as a constant Order of the House That if a Witness be brought to the House the House sitting the Bar is to be down otherwise if the House be in a Committee In a Debate about an Election Id. 70. it was Resolved That the Party concern'd shall be heard to inform the House and then he is to go forth When any Complaint is made against a Member Id. 71. or Exceptions taken to any thing spoken by him after he hath been heard to explain himself if he desire or the House command it which is usually done by him standing in his Place if the House be not satisfied but fall into Debate thereof such Member is to withdraw The Members of the lower House came to the Lords Towns Coll. 311. upon a Conference as they were sitting at the Table and going to the upper end thereof spake When any Bills or Messages are brought from the lower House to be presented to the upper House Towns 95. Vide Sir S. d'Ewes Jour 585. 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 But when any Answer is to be deliver'd by the Lord Keeper in the name and behalf of the House Ibid. to such Knights and Burgesses as come from the lower House the said Knights and Burgesses are to receive the same standing toward the lower end of the House and the Lord Keeper is to deliver the same with his Head covered and all the Lords are to keep their Places In the Answer of the Commons House of Parliament to K. James his Objection in Sir Francis Goodwyn's Case 3 Apr. 1604. Memorirls ut supra 33 34. the Objection being That they refuse Conference with the Lords The Answer is in these words Concerning our refusing Conference with the Lords there was none desired till after our Sentence passed and then we thought that in a matter private to our own House which by Rules of Order might not be by us revoked we might without any Imputation refuse to concur CHAP. XVI Passing of Bills 43 Eliz. 1601. Towns Coll. 209. WHile there were divers Disputes about a Bill Mr. Fleming the Queens Solicitor took the Bill to look a word in it after he had done and laid it on the Board one stood up and said Mr. Speaker after a Bill is ingrossed you ought to hold it in your hand and let no man look into it which was confessed by all And so the Speaker took it When a Bill is read Cook 12.115 the Speaker doth open the Parts of the Bill so that each Member of the House may understand the Intention of each Part of the Bill Such Bills Hakewel 134. as being first passed in one House are sent unto the other are alway sent in Parchment fairly ingrossed Publick Bills are in due course to be preferred in reading and passing before private Ibid. Co. 12.116 and of Publick such as concern the Service of God and Good of the Church Secondly such as concern the Commonwealth in which are included such as touch the Person Revenue or Houshold of the King Queen c. and they ought especially to be preferred in passing Lastly private Bills are to be offer'd to be read and passed in such Order as they were preferred Towns Coll. 270. And they that carry them to give some brief Commendation of them Any Member of the House may offer a Bill for publick Good Scobel 40. except it be for imposing a Tax which is not to be done but by Order of the House first had If any Member desire that an Act made and in force may be repealed or altered he is first to move the House in it and have their Resolution before any Bill to that purpose may be offer'd and if upon the Reasons shew'd for repealing or altering such Law the House shall think it fit they do usually appoint one or more of the Members to bring in a Bill for that purpose All men of Law know Towns Coll. 238. that a Bill which is only expository to expound the
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
any particular man ought not to be regarded Cest Court de Parliament est Ibid. Crompt 7. b. pluis haut Court ad plusors Priviledges que ascun auter Court del Realm pur que semble que en chescun Case sans ascun Exception chescun Burgess est privilege quant l'Arrest n'est forsque al Suit d'un Subject The Court of Parliament is the highest Court and has more Priviledges than any Court of the Realm for which it seems that in every Case without any Exception every Burgess is priviledged as to Arrest only at the Suit of the Subject Coment que le Parliament erra en le grant del Brief de Privilege Id. 61. uncore ceo n'est reversible en auter Court Tho' the Parliament do err in the Grant of a Writ of Priviledge yet it is not reversible in another Court Fuit dit per Dyer Moor f. 57. n. 163. que si home soit condemne en Debt ou Trespass est eslieu un des Burgesses ou Chivalers del Parliament puis soit prise en Exeoution il ne poet aver le privilege del Parliament issint fuit tenus per les Sages del Ley en le Case d'un Ferres en temps le Roy H. 8. coment que le privilege à ceo temps fuit à luy allowe Crompton's Jur. p 7 8 9 10 11. 34 H. 8. ceo fuit minus just It was said by Dyer That if a Man be condemned in Debt or Trespass and is chosen one of the Burgesses or Knights of Parliament and afterwards is taken in Execution he cannot have the Priviledge of Parliament and so it was held by the Sages of the Law in the Case of one Ferrers in the time of King Henry the Eighth Petyt's Miscel Parl. p. 1. c. and tho' the Priviledge at that time was allowed him yet it was unjust Hill Stukely les Viscounts de Londres fueront commit al Tower pur lour Contemts Dyer 61. pl. 28. pur ceo que ils ne voil lesser George Ferrers que fuit arrest sur un Execution d'aler alarge quant les Serjeants del Arms vient pur luy sans ascun Brief Hill and Stukely the Sheriffs of London were committed to the Tower for their Contempts for that they would not suffer George Ferrers who was Arrested upon an Execution to go at large when the Serjeant at Arms came for him without any Writ Le lower Meson del Parliament agree Fitzherberts case Moor so 340 n 461. que entant que un fuit arrest devant que il fuit eslie Burgess que il ne doit aver le privilege del Meson The lower House of Parliament agreed that in regard one was arrested before he was chosen Burgess that he ought not to have the Priviledge of the House Vide Fitz-Geralds Case Anno 1640. in Ireland Vide 39 Hen. 6. Walter Clerks Case 5 Hen. 4. Richard Chidder 38 Hen. 8. Tyneman's Case 43 Eliz. Belgrave's Case 39 Hen. 6. Ferrer's Case in Holinshead f. 1584. Debt upon an Obligation Brownl 91. Jackson versus Kirton whereof the Condition was That if A. would render himself to an Arrest in such a place c. A. pleads priviledge of Parliament and that being Servant to such a Member he could not render himself to be arrested Upon Demurrer the Opinion of the Court was for the Plaintiff for A. might render himself and let it be at their Peril if they will arrest him Magister Militiae Templi petit 4 Inst 24. quòd distringat Catalla unius de Concilio tempore Parliamenti pro Reditu unius Domûs in London Rex respondet non videtur honestum quòd illi de Concilio suo distringantur Tempore Parliamenti sed alio Tempore c. Bogo de Clare Ibid. Towns Coll. 255. Sir Simon d'Ewes Jour 655. Col. 1 says he was fined 20000 Marks and the Prior of Trinity for serving a Citation on the Earl of Cornwal in the Time of the Parliament committed to the Tower and Bogo at whose Procurement it was done fined in 2000 Marks to the King and a thousand pounds to be paid to the Earl 4 Inst 24. And yet the serving of the said Citation did not arrest or restain his Body and the same Priviledge holdeth in Case of Subpoena or other Process out of any Court of Equity Rex mandavit Justiciariis suis ad Assisas Ibid. c. quod supersedeant captioni eorundem ubi Comites Barones alii Summoniti ad Parliamentum Regis sunt Partes quamdiù dictum Parliamentum duraverit A Citation shall not be served on any Member Ibid. Vid. Sir S. d'Ewes Jour 435. Col. 1. nor Subpoena Divers Persons committed to Prison for serving a Citation on John de Thorsby Ibid. Clerk of the Parliament 22 Febr. 6 Ed. 6. Scobel 110 Vid. Sir S. d'Ewes Journ 249. Col. 2. Order'd If any Burgess require Priviledge for himself or his Servant upon Declaration thereof to the Speaker he shall have a Warrant sign'd by the Speaker to obtain the Writ 22 Martij 18 Jac. 1. Scobel 110 It was resolved That no Protection under any Mans hand of this House is good 29 Jan. 1557. Id. 89. 4 5 Ph. Mar. Thomas Ennys Burgess for the Borough of Thusk complained that a Subpoena was deliver'd him to appear in Chancery and required the Priviledge of the House whereupon Sir Clement Higham and Mr. Recorder of London were sent to the Lord Chancellor to revoke the Process 27 Eliz. Id. 90. Vid. Towns Coll. 213. Sir Simon d'Ewes Jour 438. Col. 1 2. One Kyrl having caus'd a Subpoena out of the Star-Chamber to be served on a Member of the House of Commons and for want of Appearance taken out an Attachment and inforced the Payment of Money to discharge the same the said Kyrl was committed till he had paid Costs to the Party served and made a Submission to the House on his Knees at the Bar. 15 Maij 1604. Scobel 90. The Serjeant was sent to Attach the Body of one who served a Subpoena on the Person of Sir Robert Needham a Member 7 Maij 1607. Ibid. The Serjeant was sent for Edward Throgmorton for serving a Subpoena on Sir Oliver Cromwel 14 Maij 19 Jac. 1. Id. 91. Upon Complaint of the Service of a Subpoena on a Member of this House Sir Edward Coke vouched a Precedent 10 Ed. 3. That a Subpoena being served on the Clerk of this House the Party was committed for breaking the Priviledge of this House 4 Maij 1607. Ibid. A Subpoena out of the Exchequer being served on Sir R. Pawlet a Member the House granted Priviledge and order'd the Serjeant by his Mace to attach the Parties delinquent and to bring them to the Bar to receive the judgment of the House And the next day Mr. Speaker writ a Letter to the Lord Chief Baron That no further Process
do issue against the said Sir R. Pawlet 3 Dec. 19 Jac. 1. Ibid. Upon Occasion of a Subpoena served on Mr. Brereton it was agreed by the whole House That the serving of a Subpoena upon a Member of this House knowing him to be a Parliament-man is a breach of Priviledge and Napper who served the Subpoena was committed 39 Eliz. Towns Coll. 109. Vide Sir S. d'Ewes 546. Col. 2. Mr. Combs and Mr. Henry Powle Members of this House being served with a Subpoena ad testificandum by Mrs. Ann Wye the Serjeant of the House was order'd to bring in the said Ann to appear in this House to answer the Contempt 43 Eliz. 1601. Id. 212 213 214. A Subpoena ad testisicandum served on Mr. Johnson and other Members Agreed That the Serjeant be sent to arrest all those to appear that had procured the Subpoena to answer their Contempt with all speed 44 Eliz. 1601. Id. 246. Sir Simon d'Ewes Jour 651. Col. 1. Sir Edmond Morgan a Member of this House was served with a Subpoena at the Suit of one Lemney who was sent for by the Serjeant Id. 257. And because Christopher Kennel who served it professed Ignorance he was only adjudged to three days Imprisonment in the Custody of the Serjeant and pay his Fees The same Order with William Mackerless Ibid. Vid. Sir S. d'Ewes Jour 656. Col. 1 2. who served a Subpoena on Mr. Pemberton a Member at the Suit of one Mackerness 44 Eliz. 1601. Sir Simon d'Ewes Jour 655. Col. 1 2. Mr. Philips a Member of the House was served with a Privy Seal out of the Court of Wards by one Thomas Dean Servant to Mrs. Chamberlain a Widow The House ordered that she and her Servant shou'd be sent for by the Serjeant Vide plus de his Sir Simon d'Ewes Journal 637. alibi passim 33 Eliz. The Sheriffs of London were fined by the Commons Scobel 92. and sent to the Tower for not delivering a Burgess arrested for Debt sitting the Parliament 6 Apr. 1593. Id. 92. Vide Sir S. d'Ewes Journ 519. The Serjeant at Mace who arrested Mr. Neal a Member upon an Execution and Weblyn at whose Suit he was arrested were brought to the Bar and both committed Prisoners to the Tower and the Serjeant at Arms attending this House was order'd to deliver them over to the Lieutenant of the Tower 13 Maij 1607. Ibid. Nicholas Allen an Attorney and Palmer at whose Suit Mr. Martin a Member was Out-law'd order'd to be sent for by the Serjeant and brought to the Bar to answer their Contempt An Attachment for Contempt being taken out of Chancery against Mr. Belingham a Member Ibid. the House order'd to have Priviledge and a Letter to be sent to Mr. Evelyn one of the six Clerks to stay the Suit Upon a Writ directed to the Sheriff to levy Twenty pounds Issues upon Sir Robert Oxenbridge for Non-appearance it was order'd Id. 93. That if the Issues were not discharged before that night the Parties delinquent to be brought next Day to the Bar by the Serjeant 14 Maij 1576. Ibid. Sir Edward Montague a Member of the House was warned to attend a Trial in London which was to be had against him and was by Order of the House priviledged and the Party that gave the Warning was summon'd to appear at the Bar next Morning 21 Febr. 1588. Id. 94. Vide Sir S. d'Ewes Jour 436. Col. 1 2. Order'd That those Members of the House who have Occasion of Priviledge Writs of Nisi priùs being brought against them do declare their Case to the Speaker who thereupon shall direct the Warrant of this House to the Lord Chancellor for awarding Writs of Supersedeas 3 Martij 18 Jac. 1. Ibid. Upon a Report from the Committee appointed to consider of a way of staying Trials against Members of the House that by several Precedents the Custom appear'd to be in such Cases That on Motions and Orders in the House Letters were written to the Justices of Assize for stay of Trials against Members of the House which Letters were enter'd in the Journal-Book and that it belongeth to the Clerk to write the same It was thereupon Resolved That the former Course of writing Letters to the Justices of Assize shou'd be held according to former Precedents 10 Junij 1607. Id. 95. Sir Robert Johnson a Member of this House mov'd for a Letter to stay a Trial against him in the Exchequer which was granted as appeareth by the Entry on the 13th day when a Petition of Sir Robert Brett was read against that Priviledge The Priviledge formerly granted was assirmed upon this Reason That no man shou'd have any Thing to withdraw him from his Service in the House The like 14 Febr. 18 Jac. 1. The Priviledge of the House is so much insisted on Ibid. that it hath been a Question Whether any Member of the House could consent that himself might be sued during the Session because the Priviledge is not so much the Persons as the Houses and therefore when any Person hath been brought to the Bar for any Offence of this Nature the Speaker hath usually charged the Person in the Name of the whole House as a Breach of the Priviledge of the House 3 Junij 1607. Ibid. Sir Thomas Holcroft a Member of the House had occasion to sue at Law and was sued with which he was content and desired the Leave of the House there was a Question Whether the House shou'd give leave for a Breach of Priviledge and it was resolved The House might give leave 7 Maij 1607. Id. 96. Sir Thomas Bigg and Sir Thomas Love being return'd upon an Attaint in the Kings Bench it being moved that in this Case they ought to have Priviledge it was so order'd and the Serjeant sent with his Mace to deliver the Pleasure of the House to the Secondary the Court sitting 22 Nov. 1597. Sir John Tracy a Member of this House Ibid. Vide Sir S. d'Ewes Jour 560. Col. 2. being at the Common Pleas Bar to be put upon a Jury the Serjeant at Arms was presently sent with his Mace to fetch him thence to attend his Service in the House Apr. 12 Jac. 1. Scobel 96. Sir William Bampfield was committed by the Lord Chancellor for a Contempt after the Writ of Summons but before the Election Order'd upon the Question That he shall have his Priviledge by Writ of Habeas Corpus 1 Jac. 1. Sess 2. Ibid. Sir John Peyton return'd Knight for Cambridge the last Session and since chosen Sheriff Resolved That he shall attend his Service here 28 Martij 1542. Herbert's Hen. 8.539 During this Session of Parliament some wrong was offer'd to their ancient Priviledges a Burgess of theirs being Arrested whereof the King understanding not only gave way to their releasing him but Punishment of the Offenders insomuch that the Sheriffs of London
were committed to the Tower and one Delinquent to a place call'd Little Ease and others to Newgate 2 Martij 1592. Scobel 112 113. Vide Moor so 340. n. 461. Fitzherbert's Case Vide Sir S. d'Ewes Jour 479 480 490. Col. 2. Upon a Report from the Committee of Priviledges That one Mr. Fitzherbert was return'd a Burgess and accepted against because he was alledged to be Outlaw'd and detain'd upon such Outlawry The House order'd That Mr. Speaker shou'd move the Lord Keeper for an Habeas Corpus cùm Causà to bring up the Body and the Cause of Mr. Fitzherbert But the Lord Keeper return'd That in regard of the ancient Liberties and Priviledges of this House the Serjeant at Arms be sent by Order of this House for Mr. Fitzherbert at his own charge by reason whereof he may be brought without peril of being further arrested by the way which was approved of 1 Jac. 1. Scobel 104 103 106 107. The first day of sitting complaint was made That Sir Thomas Shirley chosen a Member of the House Vid. Petyt's Miscell Parl. 122 123 124 125. was arrested four days before the sitting of this Parliament a Warrant issued to the Clerk of the Crown for a Habeas Corpus to bring him to the House being then a Prisoner in the Fleet and the Serjeant and his Yeoman were sent for in Custody who being brought to the Bar and confessing their Fault were remitted for that time 17 April Upon hearing Councel in the House at the Bar for Sir Thomas Shirley and the Warden of the Fleet it was order'd That Simson at whose Suit and the Serjeant by whom the Arrest was made shou'd be committed to the Tower 4 Maij A Habeas Corpus was awarded to the Warden of the Fleet to bring Sir Thomas Shirley to the House the Warden deny'd to execute it for which the 7th of May following he was sent for by the Serjeant and brought to the Bar who denying to bring his Prisoner a new Writ of Habeas Corpus was awarded and the Warden was committed to the Serjeant with this Order That if that Writ were not executed that then he should be deliver'd over to the Lieutenant of the Tower as the Houses Prisoner 8 Maij The Serjeant was sent with his Mace to the Fleet the Housè sitting to require the Body of Sir Thomas Shirley but the Serjeant being deny'd a Warrant was made to the Serjeant to deliver the Warden of the Fleet to the Lieutenant of the Tower to be kept close Prisoner 11 Maij The Warden was again sent for and brought to the Bar and refusing to deliver up his Prisoner he was committed to the Place call'd the Dungeon or Little Ease in the Tower 14 Maij A new Warrant was order'd for a new Writ of Habeas Corpus and that the Serjeant shou'd go with the Writ that the Warrant shou'd be brought to the Door of the Fleet by the Lieutenant himself and there the Writ to be deliver'd to him and the Commandment of the House to be made known to him by the Serjeant for the executing of it that in the mean time the Warden to be presently committed to the Dungeon and after to be return'd thither again 18 Maij The Warden did deliver Sir Thomas Shirley and so was not put into the Dungeon 19 Maij He attending at the Door was brought in to the Bar where upon his knees confessing his Error and Presumption and professing he was unfeignedly sorry he had so offended this Honourable House upon that Submission by direction of the House the Speaker pronounced his Pardon and Discharge paying ordinary Fees to the Clerk and to the Serjeant Mr. Belgrave Sir Simon d'Ewes Jour 688. Col. 1. being a Member of the House of Commons had an Information exhibited against him in the Star-chamber by the Earl of Huntington An Order was enter'd as the Act of the House 43 Eliz. 1601. That he ought not to be molested in that Manner 10 Febr. 4. Rush Coll. 653. Vid. Petyts Miscell Parl. p. 107 Car. 1. Whilest the House was in Debate the Ware-house of Mr. Rolls Merchant and Member of the House then sitting in Parliament was lock'd up by a Pursuivant and himself call'd from the Committee and served with a Subpoena This gave occasion of smart Debates in the House After Id. 654. the Attorney General writ a Letter That the serving a Subpoena was a mistake and pray'd a favourable Interpretation Resolved That Mr. Rolls a Member of the House Rush Coll. 659. ought to have Priviledge of Person and Goods 16 Febr. 5. Memorials of the Method of Proceedings in Parliament 97. Vid. Sir S. d'Ewes Journ 85. Col. 1. Eliz. Robert Parker Servant to Sir William Woodhouse Knight for Norfolk being attached in London at the Suit of one Baker in Trespass had a Warrant of Priviledge notwithstanding Judgment given against him for four Marks 20 Febr. 18. Ibid. Vide Sir S. d'Ewes Journ 251. Col. 1. Eliz. 1575. Upon the Question and also upon Division of the House Edward Smaley Servant to Arthur Hall Esq one of the Burgesses for Grantham being arrested upon an Execution had Priviledge 16 Dec. 44 Eliz. Anthony Curwen Servant to William Huddleston Esq one of the Knights of Cumberland Ibid. Vid. Sir S. d'Ewes Jour 680. Col. 1. being arrested upon a Capias ad Satisfaciendum out of the Common Pleas for six pounds Debt and forty shillings Damages and detain'd in Execution a Supersedeas was awarded and he was deliver'd And the House awarded Towns Coll. 326. Vide Sir S. d'Ewes Jour 680. Col. 1. 686. Col. 1. the Serjeant shou'd be discharged paying his Fees and that Matthews shou'd pay them and Matthews to pay his Fees and remain three days in the Serjeants Custody for procuring the Arrest 11 Maij 19 Jac. 1. Memorials c. p. 98. The Vnder-Sheriff of Middlesex was call'd to the Bar for causing Alexander Melling Servant to the Chancellor of the Dutchy to be arrested he deny'd he knew him to to be his Servant Mr. Speaker let him know the House had order'd him to have Priviledge and therefore ordereth the Vnder-Sheriff to discharge him 1 Jac. Ibid. 1. Sess 2. Sir Edward Sandys moveth a Breach of Priviledge by Sir Robert Leigh a Justice of the Peace for committing his Coach-man to Newgate Sir Robert Leigh was sent for by the Serjeant and an Habeas Corpus for the Prisoner Sir Robert Leigh being brought to the Bar acknowledg'd his Fault and was discharged and so was the Prisoner 3 Martij 1606. Ibid. Valentine Syre Servant and Bag-bearer to the Clerk of the Commons House being arrested upon an Execution was by Order and Judgment of the House enlarged 7 Sept. 1601. Id 99. Vid. Towns Coll 196 206 210. Woodal Servant of William Cook Esq a Member of the House being arrested and in Prison in Newgate Vide Sir S. d'Ewes Jour 629. Col. 1. the
Serjeant at Arms was presently sent to Newgate to bring him to the House sedente Curiâ and being brought to the Bar with his Keeper was discharged by Order of the House from his said Keeper and from his Imprisonment 1 Julij 1607. Memorials 99. John Pasmore the Marshal's man being sent for and brought to the Bar for arresting John Jessop Waterman Servant to Sir Henry Nevil a Member of the House he deny'd that he knew he was Sir Henry's Servant until afterward notwithstanding he took an Assumpsit from him to answer the Action The House thought fit to commit him to the Serjeant till the Houses Pleasure were further known and till he had discharged the Assumpsit and paid the Fees 17 Junij 1609. Ibid. Upon a Report from the Committee for Priviledges that a menial Servant of Sir Robert Wroth was arrested eight days before this Session the Serjeant was sent for the Prisoner and the Serjeant that made the Arrest one King who follow'd it and Fisher at whose Suit he was arrested 4 Junij 19 Jac. 1. Id. 100. Johnson a Servant to Sir James Whitlock a Member of the Commons Housel was arrested upon an Execution by Moor and Lock who being told that Sir James Whitlock was a Parliament man Fulk one of the Prosecutors said He had known greater mens men than Sir James Whitlock taken from their Masters Heels in Parliament time This appearing Lock and Moor were call'd in to the Bar and by the Judgment of the House were sentenced First That at the Bar they shou'd ask Forgiveness of the House and of Sir James Whitlock Petyt 's Miscel Parliament 118. on their knees Secondly That they shou'd both ride upon one Horse bare-back'd back to back from Westminster to the Exchange with Papers on their Breasts and this Inscription For arresting a Servant of a Member of the Commons House of Parliament and this to be presently done sedente Curiâ which Judgment was pronounced by Mr. Speaker against them at the Bar upon their Knees 28 Apr. 22 Jac. 1. Memorials 100. A Warrant was order'd to be issued by the Speaker for a Writ of Priviledge to bring up Andrew Bates Servant to Mr. Richard Godfrey of the House in Execution with the Sheriff of Kent at the Suit of one Hunt This Priviledge doth take place by Force of the Election and that before the Return be made as appears in the Case following 19 Nov. 1601. Id. 107 108. Vide Sir S. d'Ewes Jour 642. Col. 2. 643. Col. 1. Vid. Petyts Miscell Parl. 119. Upon Information to the House that one Roger Boston Servant to Lanckton Baron of Walton who upon credible Report of divers Members of the House was affirmed to be chosen a Burgess for the Borough of Newton in Lancashire but not yet return'd by the Clerk of the Crown had been during that Session of Parliament arrested in London at the Suit of one Muscle the said Muscle together with the Officer that made the Arrest were sent for by the Serjeant and brought to the Bar and there charged by Mr. Speaker in the Name of the whole House with their Offence herein and having been heard Boston was order'd to have Priviledge and to be discharged of his Arrest and Imprisonment and the Offenders for three days committed to the Serjeant and order'd to pay such Charges to Beston as the Speaker shall set down and their Fees 6 Martij 1586. Memorials p. 108 109. Sir Simon d'Ewes Jour 410. Col. 1.414 Col. 2. This day William White brought to the Bar for arresting Mr. Martin a Member of the House made Answer That the Arrest was made above fourteen days before the beginning of the Parliament the House thereupon appointed a Committee to search the Precedents And March 11. the Committee made their report of Mr. Martin a Member of this House arrested upon mean Process by White above twenty days before the beginning of this Parliament holden by Prorogation mistaken for Adjournment and in respect that the House was divided about it in Opinion Mr. Speaker with the consent of the House the sooner to grow to some certainty of the Judgment of the House in this Cause moved these Questions to the House viz. First Whether they would limit a time certain or a reasonable time to any Member of the House for his Priviledge The House answered a convenient time Secondly Whether Mr. Martin was arrested within this reasonable time The House answered Tea Thirdly If White should be punished for arresting Martin The House answer'd No because the arrest was twenty days before the beginning of the Parliament and unknown to him that would be taken for reasonable time But the principal cause why Martin had his Priviledge was for that White the last Session mistaken for Meeting of Parliament arrested Mr. Martin and then knowing him to return'd a Burgess for this House discharged his Arrest And then afterwards Mr. Martin again returning out of his Country to London to serve in this House Mr. White did again arrest him and therefore this House took in evil part against him his second Arrest and thereupon judged that Martin should be discharged of his second Arrest out of the Fleet by the said Mr. White 12 Martij 1606 Complaint was made by Mr. James a Burgess of Parliament Id. 102. That his Horse standing at his Inn was taken by the Post-masters Servant both the Post-master and his Servant were sent for and brought to the Bar. Moreton the Post-master appearing to be ignorant of what his Servant had done and disavowing it was by order of the House discharged but upon the Testimony of a Witness at the Bar that he told the Servant when he took the Horse that a Member of Parliament was owner of it the Servant was committed In Dec. 1606. Thomas Finch Memorials p. 101 102. a Servant to Sir Nicholas Sandys one of the Burgesses for Quinborough was Arrested during the Adjournment which being conceived to be a great Contempt to the Priviledge of the House an Habeas Corpus was awarded to bring him to the House and he was accordingly brought and also one Knight who procured the Arrest and Harrison the Yeoman The Excuse was that Finch was an Attorney at Law but it being avow'd by Sir Nicholas Sandys That Finch lay in his House solicited his Causes and received Wages from him And it being insisted on that all menial and necessary Servants are to be priviledged and instance given of a Precedent of the Baron of Waltons Solicitor and Huddleston's Solicitor in the time of Queen Elizabeth Upon the Question Finch was priviledged and deliver'd according to former Precedents During the Adjournment Ibid. 102. a Suit was prosecuted in the Court of Wards against Nicholas Pots Esq and Francis Wethered Gent. Committees of a Ward which concerned Mr. Nicholas Davys Servant to the then Speaker as Assignee of the Ward The Speaker writ a Letter to the Court to make known That he