[Page] THE PRIVILEDGES AND PRACTICE OF PARLIAMENTS IN ENGLAND. Collected out of the Common Lawes of this Land. Seene and allowed by the Learned in the Lawes. COMMENDED To the High Court of Parliament now Assembled.

Printed. 1640.

The principall Contents of this ensuing Discourse.

  • 1. THe Originell of Parliaments.
  • 2. The Saxons denominations of Parlia­ments.
  • 3. The French and Germane denominations of the same.
  • 4. The great difference betwixt our Parliaments and the Court of Parliaments in France.
  • 5. The King may call a Parliament by his Deputies, or Lieutenants, though hee himselfe be absent in transmarine parts.
  • 6. The King may call and hold a Parliament before his Coronation; as also in his Minoritie or None-age.
  • 7. An Vsurper of the Crowne may call a Parliament.
  • 8. The penaltie of the Sheriffe, for making false re­turnes of Knights or Burgesses.
  • 9. The remedy of Penaltie for any Archbishop, Bi­shop, Duke, Marquis, Earle or Baron, if summo­ned by Writ and not comming through Sicknesse, &c.
  • [Page] 10. Knights and Burgesses of the Parliament m [...] take the Oathes of Alleageance and Supremacie,
  • 11. The Clergie of the Convocation, though necessa­rily to be Summoned, yet no part or member the Parliament.
  • 12. The particular Priviledges of the Parliament men of Vpper and Commons. House, after summo [...] and Election.
  • 13. The fòrme of a true Protection.
  • 14. Concerning the due placing of the Lords in [...] Vpper House.
  • 15. The sitting of the principall Officers of State i [...] the Vpper House.
  • 16. Concerning Voyces of the Vpper and Commo [...] House.
  • 17. The Bishops haue no Voyces in Parliamen.
  • 18. The King cannot change the Lawes without co [...] sent of Parliament.
  • 19. The Iudges or Iustices, haue no Voyces but [...] expound the Law.
  • 20. An Abstract of some Memorable things done by Parliaments in England.

A discourse of the Priuiledge and practice of the high Court of Parliament in England, colle­cted out of the Common-Lawes of this Land.

THe most Common and best meanes for the preservation and Conserva­tion at well of private as publique Tranquillitie and Societie vsed in all Ages, and by all Nations, is by way of lawfull Assembly, and Con­sultation, which wee call Parlia­ment, to looke into the necessity of publique Condition, and so to fore-see seasonable re­medie.

Where no Counsell is, the people fall, But where many Counsellers are, there is health, Prou. 11. and 14. Tully saith. Communis vtilitatis de relictio contra naturant est. The Saxons called this Court Miclegemot, the great Assemblie, and Witenagemot, the Assemblie of wise men; The Latine Authors of those times called it Commune Consilium, magnacuria generalis conventus, &c. But WILLIAM the Conquerour as it seemeth changed the name of this Court, and first called it by [Page 2] the name of Parliament. But manifest it is, that the Conquerour changed not the frame or Iurisdiction of this Court in any point; yea, the very names which are attributed to this Court before the Conquest are continued after the Conquest to this day. And where some doe suppose, That in the Parliament holden at Westminster in the 3. Ed. 1. called Westminster the first, the word Parliament first crept in where it is called the first generall Parliament by the assent, of the Arch. bishops, Bishops, Abbots, Earles, Barons, and all the Communaltie of the Land summoned to the same; yet it is manifest that the name of Parliament was long before that time, and for proofe thereof note: 21. Ed. 3. fol. 60. and in Sir Edwards Cokes Preface to his 9th. Booke, where it is fully proued; That the Conquerour himselfe did hold this Parliament, and other his mediate Successors. Although in the bookes of Statutes mention is not made of any Sta­tute before Magna Charta, in the 9th. yeare of Hen. 3.

And this is not that Court, which in France bea­reth the name of Parliament, for they are but ordina­ry Courts of Justice; But this is that Court which both England and Scotland agreeth in naming it Par­liament, which the French call, Assemble de estates, or Les estates. And the Germanes, A Rikes Daggh, or Dyet.

Of this Court it may be said, Si vetustatem spectes est antiquissima, si dignitat em est boneratissima, si juris­dictionem est copiosissima. And as Sir Edward Coke ob­serveth in his Preface to his 9. Booke. This great and Honorable assembly hath a Three fold end; First, that the Subject might be kept from offending, that is, that offences might be prevented, both by good and pro­vident [Page 3] Lawes and by due execution of them. Secondly, that men might live safely in quiet; And thirdly, that all men might receive Iustice by certaine Lawes and holy Judgement. To the end that Iustice might be the better administred, That questions and defects in Law by this high Court of Parliament: be explained and brought to certainty and judgement.

Our Soveraigne King Charles in his late Procla­mation calls it, The Great Counsell of Vs and Our Kingdome.

And for somuch as this great and principall Court is the Kings Court, and the Court of the Kingdome, whereof the King is supreame head and Governour. neither the Lords nor the Commons can summon it nor appoint any certaine time or place for the Assembly of the Parliament; For that onely doth appertaine to the King to doe, See the Statute 21. Ric. 2. Ca. 12. And in the Kings name onely such summons must be made as an absolute Perogatiue incident to his Crowne and Dignity. Like as divers things doe solely belong to the King, whereof the Subiect hath nothing to doe: as foe­dere Percutere to make leagues, or bellum indicere, 9. Ed. 4. fol. 6. The King onely without the Subject, may make letters of Denisation, to whom and how many he will. And the King by his Proclamation; may make any Coyne lawfull money of England: And many other things doe appertaine to the King as speciall flowers of his Crowne.

And if the King happen to be in any forreine part, yet the Parliament holden in this Realme in the Kings absence must be sommoned in the Kings name vnder the Testo of the Kings Lieutenant, as by the Statute 8. Hen. 5. Ca. 1. may appeare.

[Page 4] Bracton saith, Parliaments have beene holden by the Kings Lieutenant Procurator or Deputy, as in the 13. Ed. 2. the King constituted Adomarum de Valen­tia Comitem Pembrociae custodem, regni sui, & locum­suum tenendum quamdiu Rex in partibus transmarinis moram jecerit.

And the Kings of this Land have constituted as their Lieutenants or Deputies to summon the Parliament 3 or 4 in a Commission as in the 24, of Hen. 8, at his being at Callice a Parliament was holden by Commissi­on as followeth:

Henricus 8 Dei gratia Angliae, Franciae, Rex fidei defensor: Dominus Hiherniae Reverendissimo in Christo Patri Edwardo Archiepiscopo, Eborac. Predolicto & sideli suo Thome Audeley Militi, duo custodi Magni Sigilli, ac Charissimo consanguieno suo Roberto Comiti Suffex salutem: Cum Presens Parliamenium nostrum a­pud Civitatem nostram London 3. die Novembris Anno regni nostri vicessimo primo in Choat, & vsque Westm. Prarogat, & ibidem post diuersas continuationes & Prorogationes idem Parliamentum nostrum apud West­minstr. 14, diem Novembris apud Westminstr, etiam Prorogat-fuerat. Ibidem tunc tenendum nos idcirco con­siderante absentiam nostram a regno nostro Angliae apud Calice existent iu causis vrgentissimis nos & rem Pub­licam regni nostri, concernent alijs (que) Considerationibus nos specialitur moventibus ac de fidelitate, integritate, industria, & circumspectione vestris Plemus confidentes, de aduisamento & assensu confilij nostri assignamus vos & duos vestrum Dantes vobis & duobus vestrum plenā Potestatem, facultatem, & authoritatem, hac instante die lune ad & in quartum diem Februar. Prox, futu­rum vs (que) Westm. Predictum Proragandum & con­tinuandum [Page 5] ibidem tunc teneudum. Et idio vobis man­damus quod circa premissa diligenter intendatis, ac ea in­forma predict, effectualiter expleatis, Damus autem vni­versis & singulis Archiepiscopus, Episcop, Abib. Prior-Duabus, Marchionib, Commitibus, Vicecommit. Baro­nibus, Militib, Ciuibus, Burgensib, ac omnibus, aliis quo­rum interest, aut intere potent in hac parte: in mandatis quod ipsi omnes, &c. Singula in premissis omnibus sin­gulis faciendum & exequendum intendentes fuit consu­lentes & obedientes prout decet. In cunis rei Testimo­nium has liter as nostras fieri fecimus Patentes, Teste me ipso apud Westm. 4. Die Novembris, anno regni nostri vicesimo quarto,


And a King in possession of his Kingdome during his raigne may before his Coronation summon his Parliament as taking one example in a case so cleere for all: King Hen, 6, was not crowned vntill the 8 yeare of his raigne, and yet in his 1, 2, 3, 4, 5, and 6, yeare of his raigne divers Parliaments were hol­den, (as also our gracious Soveraigne King Charles­ called a Parliament Anno, 1. before his Coronation). And summoned by him Hen. 6, as in the Statutes may appeare: For it is cleerely resolved by all the Iudges of England, that presently by discent he is absolutely and compleately King without any essentiall ceremony or act to bee done ex post facto, and that Coronation is but a royall ornament or outward solemnization of the discent, And the King is as absolute and compleate a King both for matter of Iudicatorie as Graunrs, &c. both before his Coronation as hee was after.

[Page 6] Also the King being within age, may aswell sum­mon his Parliament as if he were at full age, as by the example was seene in the said Hen. 6. and Ed. 6. and obserue the case of the Dutchie of Lancaster in Plowdens Commentaries, 221. 6. Where it is agreed, that the person of the King is not infeebled by his nonage, for his person doth alwayes remaine of full age, aswell to make guifts and graunts as in admini­stration of Iustice.

And the diversity of Sex maketh no difference a [...] by the Statute made in the first yeare of Queene Mary holden by Prorogation Cap. 1. is decla­red.

Also a King being in possession of his Kingdome whether by rightfull Title or by wrong as an Vsurper. He is a person able Ipso facto to summon a Parliament, as by the example holden by Hen. 6. before and after the redemption of his Crowne being remoued there from by Ed. 4. wherein the said Edward was in his Remitter as is to be seene in Baggots assis [...], in the 9. yeare of Ed. 4. fol. 1. 6. & sequentium whereby it is said, that Hen: 6. was King in possession. And it was necessary that the Realme haue a King vnder whom the Lawes may be holden and maintained. And therefore though he was but vsurpation, yet e­very act Judicially done by him, which doth concerne his Jurisdiction Royall shall be good, and bind the rightfull King his regresse, and divers other Examples there are hereof. See 1 Hen. 7. fol. 3.

In ancient times after the King had summoned his Parliament to be holden at a certaine day and place, Innumerable multitudes of people did make there ac­cesse thereunto, pretonding that priviledge of right to belong to them, and not onely to the Lords spiritu­all [Page 7] and Temporall but also to the Commonalty being Freeholders: But King Hen. 3. hauing had experi­ence of the mischiefes and inconveniences by occasi­on of such popular confusion, did take order and re­strayned that ouer great accesse. So that none might come to his Parliament but those who were specially summoned, which his sonne Edw. 1. did carefully keepe and obserue, according to that auncient saying, Ad Consilium ne accesseris antequam voceris. And so euer since this speciall manner of summons of Parlia­ment now vsed hath beene put in practise. The vsuall forme of summons for the Parliament for the Com­monaltie, is not speciall, but a generall Writ is dire­cted to the Sheriffe of euery County or Shire in Eng­land and Wales, in this forme.

Rex vice. N. Salutem quia de advisamento & as­sensum Consilij nostri quibusdam arduis & vrgentibus negatijs nos Statum & defensionem Regni nostri Angliae, & Eccles. Anglicanè concernent quandam Parliamen­tum nostrum apud Civitatem nostram Westm. 17. die Martij Prox. futurum teneri ordinavimus & ibidem [...] Prelatibus magnatibus & proceribus dicti Regni nostri colloquium Habere, & tractare, Tibi precipim [...] [...]rmiter iniungentet quod facta Proclamacionè in Prox. com. tuo post receptionem hujus brevis nostri tenendum dio & loco Predicto, duos Milites, gladijs tinctis ma­gis idonios & discretos eum predict. &c. Et Electionem illam in pleno com. tuo factū dissinctè & aparte, sub Si [...] ­gillo tuo & sigillis eorum qui Electioni illi inter fuerunt nobis in Cancellariam nostram ad dictum diem & locum certifices indilate, Teste meipso, &c. vide Statut. 23. H. 6. Ca. 15.

[Page 8] And concerning those of Wales to be summoned the Parliament, read the Statute thereof 27, Hen, Hen, [...] cap. 26, Intituled, an act for Lawes and Iustice to be ministred in Wales, in like forme as it is in this Rea [...] And also that other Statute made 35, Hen. 8, cap. 11 Intituled an Act for the due payment of Fees and wage of Knights and Burgesses of the Parliament, in wage And thereof see in Plowdens Comitaries 120, Sir Ri­chard Bulkleyes Case and in Dyer 13.

And concerning those of the County Palatine [...] Chester, and of the City of Chester in this behalfe, so the Statute made 34, Hen. 8. cap. 13.

In Anno 1, of Queene Mary a great doubt [...] moved amongst the Iustices and Serjeants, If th [...] Queenes writ of summons of the Parliament in which the Stile or Title of Supremum Caput Ecclesiae Angli­canae were omitted, were good and sufficient or vt­terly voide, &c. Because the said stile is vnited an [...] annexed by the Statute made the 26, and 35, Hen. 8 to the Imperiall Crowne of the Realme, but the grea­ter opinion was, such summons is good enough, so they said that Supremum Caput is not parcell of the Queenes name, but an addition, and the words in the Statute are onely in the assirmatiue and not negatiue­ly; That the Stile shall be of necessity so written of the Queene. And this doubt was by Queene Elizabeth againe moued in the first Parliament and was aduised and resolved by great advise and deliberation (vt su­pra) see the Statute 1, and 2 of Phil. and Ma. cap. 8, And in Master Foxes Acts and Monuments so: The argument of Iohn Hales to the contrary, cujuscunque potessima Pars est Principium, which Rule is expressed in Sir Edward Cokes 10. part 49. 1. but ibidem fol. [Page 9] 161. a the ancient rule is cited, qui libet potest renun­ciare luris Prose interductä,

At euery County after the delivery of the Parlia­ment writ to the Sheriffes, Proclamation shall be made in the full County of the day and place of the Parlia­ment, And that all men shall attaine for election of the Knights for the same County for the Parliament, The which Knights must be resident within the same County, whereof they are to be chosen the day of the writ of summons of the Parliament, whereof every one ought to have 40, S. of Free-hold within the said County beyond all charges. And such who haue the greatest number of the said Electors, shalbe returned Knights for the same County, see 7. Hen. 4, cap. 12, 1, Hen. 6, cap. 1, 8, Hen. 6, cap. 13, and 10, Hen. 6, cap. 7.

The Sheriffe may examine euery one of the said Electors vpon the said Evangelists how much hee may dispend by yeare if he doubt of the value thereof, 8. Hen. 6, cap. 15.

The said Election shall be made in the full County betweene the houres of 8, and 9, before noone; 23, Hen, 6, cap. 15.

The said Knights shall bee returned into the Chan­cory by Indenture sealed betweene the Sheriffe and the said Electors, 8, H. 6, Cap. 7, 7. H. 4, cap. 1, 23, H. 6. cap. 6. vt patet per breue supra.

Every Sheriffe who doth not make a true returne of such election of Knights to come to the Parliament recording to the Statute in that behalfe made, that is to say, The Statute 8, H. 6, cap. 7, shall forfeit 100l to the King, and 100l to the Knight so chosen, who shall Commence his action within 3. moneths after the [Page 10] Parliament commenced. And if hee so doe not and prosecute his suite in effect and without fraud: Any other man who will may haue the said suite, for the said 100. as the Knight had, and costs of fuit also shall be awarded to the said Knight or other who will su [...] his behalfe, 23. Hen. 6. Ca. 15.

No Sheriffe shall be chosen for a Knight of the Par­liament nor for a Burgesse, see the booke of Entries 411. And at a Parliament holden 38. Hen. 8. It was ad­mitted and accepted that if a Burgesse of the Parlia­ment bee made Mayor of a Towne, or haue Iudiciall Jurisdiction, or another is sicke, That these are causes sufficient to those others. And so was done by the Kings Writ out of the Chancery, comprehen­ding this matter which was in Commune [...]mo Parlia menti, 7. and 38. Hen. 8.

In euery writ of Parliament directed to the She riffe, this clause shall be insorted: Electionem tuam in pleno Com. tuo factum distincte & aperte sub Sigillo tuo & Sigillis coram qui electioni illi inter fuerunt nos in Cancellariam nostram ad diem & locum in breue Con­tent certifices indilato: Hen. 4. Cap. 15.

The Sheriffe after the receipt of the writ of Ele­ction, &c. shall deliver without fraud a sufficient pre­cept vnder his seale to every Mayor, and Bayliffe or Bayliffes where no Mayor is, of City and Burrough within his County, reciting in his precept the writ of Parliament, commanding them by the said precept; If it be a City to those Citizens for the same City by Citizens, And if it be a Burrough then Burgesses, by Burgesses of the same to come to the Parliament, [Page 11] And that the said Maior, or Bayliffe, or Bayliffes, where no Mayor is, shall returne lawfully the said pre­cept to the Sheriffe: and those who made the Electi­ons, and of the names of the said Citizens & Burgesses by them so chosen; 23. Hen. 6. Cap. 15.

The Sheriffe shall make a good returne of his writ, and of euery returne of the Mayor and Bayliffe or Bayliffes, or Bayliffes where no Maior is to him made. And if the Sheriffe doe contrary to this Sta­tude made for the election of Knights, Citizens, and Burgesses to come to the Parliament, he shall incurre the paine of 100. pounds to the King, and shall bee imprisoned for one whole yeare, without Bayle or maine-price. And the Knight for the County retur­ned contrary to the said Ordinances, shall loose their wages by the Statute, 8. Hen. 6. Cap. 7. And the Sheriffe shall loose 100. pounds to euery Knight, Ci­tizen, and Burgesse, chosen in his County to come to the Parliament; And not duely returned, or to any other who will sue in his default by action of Debt, with costs expended in that case: In which suite, the Defendant shall not wage Law, nor be essoyned, Anno 23. Hen. 6. Cap. 15.

If the Mayor, and Bayliffe, or Bayliffes, or Bayliffes where no Mayor is, doe returne others, then those who be chosen by the Citizens and Burgesses of the Ci­ties and Borough,, where such Election shall bee made, hee shall forfeit to the King 40. pounds, and so much to the Citizen or Burgesse chosen to come to the Parliament and not duely returned by the Mayor or Bayliffe; or Bayliffes where no Mayor [Page 12] is, or to any other person who in default of such Citizen or Burgesse so chosen, will sue for it by action of debt with costs expended. And they shall haue a writ of debt for the said 40. pounds, in which the defendant shall not wage his Law nor shall be es­soyned, 23. Hen. 6. Cap. 15.

Every Knight, Citizen, or Burgesse, chosen and not returned, shall Commence his action within 3. Moneths next after the commencing of the said Par­liament. In which he must proceed effectually with­out fraud, And if he so doe not, any other who will sue for it, shall haue the said Action for the said For­feiture, and costs in the same expended: in which the Defendant shall not wage Law, nor shalbe essoy­ned; Anno 23. Hen. 6, cap. 15,

If any Knight, Citizen, or Burgesse, that shall be returned by the Sheriffe to come to the Parliament, be after such returne put out, and another put in his place, he that is in his place so put out, if he take vpon him to be a Knight, Citizen, or Burgesse, shall forseite to the King 100. pounds, and so much to the Knight, Citizen, or Burgesse, returned by the Sheriffe: and so afterwards put out, and the same Knight, Citizen, or Burgesse, so put out, shall haue an Action of debt against him so put in his place, his Executors and Administrators, and shall commence his action within 3. Moneths after the beginning of the Parliament: and if he sue not as before, any other who will shall haue the said suit; in which the Defen­dant shall not wage his law, nor shall bee essoyned; so that such Knights of the Parliament chosen, be a [Page 13] Knight, or such Esquire or Gentleman of the same County, who may be a Knight, and none to be such a Knight, who stands in the Degree of a Yeoman; Anno 23. Hen. 6. Cap. 15.

All persons and Commonalties who shall bee sum­moned to the Parliament, shall come as it hath beene accustomed of the Ancient time: And hee that com­meth not hauing no reasonable excuse shall bee amer­ced, and otherwise punished as of ancient time hath bin vsed, 5. R. 2. Statut. 2. Cap. 4.

If any Archbishop, Bishop, Duke, Marquis, Earle or Baron, be summoned by the Kings writ to come to the Parliament, and thorough sicknes or any other infirmitie he cannot make his appearance at the said Parliament, he must procure from the King his Warrant of absence, as in like case was graunted to the Abbot of Eusnam in the 23 yeare of Hen, 8. in forme following.

H. 8. By the King.

Trusty and welbeloved. Wee greet you well, and albe­it you have monition among other Prelates of our Realm to bee present at our high Court of Parliament to bee holden: yet neverthelesse wee of our especiall grace con­sidering your debility and age, bee content and by these presents Licence you to be absent from our said Parlia­ment during the continuance, prorogation, or adiourn­ment of the same: The said Monition, or any other [Page 14] writ directed to you, or Commandement given by vs to you notwithstanding vnder our Seale, signed at our Mannor of Greenwich, The 6. of Ianuary in the 23. of our raigne.

To our trustie and welbeloued in God, the Abbot of our Monaste­ry of Eusham.

And it appeareth to be true which Fortescue saith in his 18. Cap. Fol. 40. That Acts of Parliament and Statutes in England, are not made onely by the Princes pleasure, but also by the consent of the whole Realme: So that of necessity they must procure the Weale of the whole Realme, and in no wise tend to their hinderance. And it cannot bee otherwise thought but that they are replenished with much wit and wisedome, seeing they are not ordained by the advice of one man onely, or of a 100. wise Coun­cellors, but of more then 300. chosen men, which agreeth with the ancient number of ancient Senators of Rome.

No Baron, Knight, Citizen or Burgesse, who shalbe chosen to come to the Parliament, shall not depart vntill that Parliament be ended or prorogued if he haue not license of the Speaker, and of the Commons as­sembled in that Parliament, which license shalbe en­tred in the Booke of the Clearke of the parliament ap­pointed for the Commons House, vpon paine of losing their wages, whereof all Counties and Burroughs shall be discharged, 6. Hen. 8. cap. 16.

[Page 15] Concerning the due leauying of Knights Fees and wages for attendance at the Parliament, see the Sta­tute made 23, Hen. 6. Cap. 11.

Knights and Burgesses for the Parliament must take the Oath of Allegiance, and so shall Citizens and Ba­rons for the Fiue ports, for the parliament before they doe enter into the parliament house Anno 5, E­liz. Cap. 1. and they must also take the Oath of Super­macie, made 7, Iacobi cap. 6. Which two Oathes shall be taken before the Lord Steward for the time being, or his Deputy or Deputies.

Memorandum in the Statute made, Anno 25, Hen. 8, Cap. 19. entituled an Act concerning the submission of the Clergie of the Kings Majestie, is contained, that the Convocation is ond alwayes hath bin and ought to be assembled by the Kings writ, The forme whereof is thus set downe by Doctor Cowell in his Interpreter Verbo Proclam. First, the King directeth his writ to the Archbishop of each pro­vince, for the summoning of all Bishops, Deanes, Archdeacons, Cathedrall and Collegiate Churches, and generally all the Clergie of his province: after their best discretions and judgements, assigning to them the time and place in the said writ, Then the Archbishops proceed in their accustomed course one example may shew both. The Archbishop of Canterbury vpon his writ of summon received, dire­cteth his letters to the Bishop of London as his Deane provinciall. First citing him peremptorily, And then willing him to Scite in like manner all the Bishops, [Page 16] Deanes, Arch-Deacons, Cathedrall and Collegiate Churches, and generally all the Clergie of his Pro­vince, to the place and against the day prefixed in the writ, but directeth withall: That one Proctor sent for every Cathedrall or Collegiate Church, and two for the body of the inferior Clergie of each Dyocesse may suilice, and by vertue of these Letters, Authentically sealed. The said Bishop of London sendeth the like Letter; seuerally to the Bishops of euery Diocesse of the Province, cyting them in like manner, and com­mandeth them not onely to appeare, but also to admonish the said Deanes and Archdeacons, perso­nally to appeare, and the Cathedrall and Collegiate Churches, also of the common Clergie of the Dyo­cesse, to send their Proctors at the day appointed in the Writ: And also will them to certifie the Arch­bishop, the names of all and euery one so summoned by them, in a schedule annexed to their Letters Cer­tificatorie. The Bishops proceed accordingly, and the Cathedrall and Collegiate Churches: as also the Cler­gie make choise of their Proctors, which done and cer­tified to the Bishop, he returneth all answerable to his charge, (Cave lector) for the Clergie of the Convo­cation house, are no part or member of the Parliament: as you may see resolued by the Lord Richard Lord Windsor, and others; in the beginning of the sixt Examination of Master Philpot, in the beginning of the raigne of Queene Mary: in Master Foxes booke of Martyrs, Fol. 1639. contrary to the opinion of Doctor Cowell, vbi supra. Neverthelesse it is enacted by the Statute 8. Hen. 6. Cap. 1. That all the Cler­gie called to the Convocation House by the Kings writ, and their servants and familiars shall haue and [Page 17] fully vse euery such libertie and defence, in comming, abiding, and going, as the Great men and commonalty of the Land (to bee called to the Parliament of the King) shall haue.

And because mention is here made of the Priui­ledges appertaining to those of the Parliament house; take heere a word or two thereof. The Words of the Statute made the 11. Hen. 6. cap. 11. are as followeth: The King willing to prouide for ease and tranquility of those that come to his Parlia­ment: Hath ordained and established, That if any assault or affray be made vpon any Lord Spirituall or Temporall, Knight of the Shire, Citizen or Bur­gesse, comming to the Parliament, or the Councell of our Soveraigne Lord the King. That then Procla­mation shall be made, in the most open place of the City or Towne where the affray was so made, by 3. severall dayes, That the party that made such affray and assault, yeild himselfe before the King and his Bench, within a quarter of a yeare after the procla­mation so made, if it be in the time of the Terme, or otherwise in the next day in the time of the Terme following the said quarter. And if he so doe not, that he bee attained of the deede, and pay to the partie greeved his double damages, to bee taxed at the dis­cretion of the Iustices of the same Bench for the time being, or by inquest if it be needfull: and make Fine and Ransome at the Kings will, and if he come and be found guilty by inquest, examination or otherwise of such affray or assault, then he shall pay vnto the partie greeved thereby, his double damages found by the Inquest, or to be taxed by the discretion of the [Page 18] Justices, and make Fine and Ransome at the will and pleasure of our Soveraigne Lord the King.

Every Knight, Citizen, Burgesse, Baron of the Five Ports or others, called to the Parliament of the King; Shall have priviledge of the Parliament during the Sessions of Parliament, so that he that doth arrest any of them during that time, shall bee imprisoned in the Tower by the Nether House, of which he is and shall be put to his fine and the Keeper also, if hee will not deliver him when the Serjant at Armes doth come for him by the commandement of the house whereof he is: See Dyer, 60.

The servants attending vpon their Masters during Parliament who are necessary, and also such Offi­cers as bee attending vpon the Parliament, as the Serjeant at Armes, the Porter of the doore, Clearkes and such like, and in the same manner of their chat­tells and goods necessary, so that they shall not bee arrested nor taken by any Officer, if it be not in case of Fellony or Treason, in the same manner, as the Iudges and Ministers of other Courts shall have for their servants, goods and chattells necessary, see Crom­ptons Courts, fol. 11. a.

But the Parliament doth not giue priuiledge Tem­pore vacationis sed Scedente curia. See Brooks Title priviledge, 56. It appeareth that in the Parliament 31. Hen. 6, in the vacation, the Parliament being continued by prorogation, Thomas Thorpe the Speaker was condemned in a Thousand markes, da­mages by an Action of Trespasse brought against [Page 19] him by the Duke of Yorke, and was committed to prison in Execution for the same, and after when the Parliament was re-assembled the Commons made suite to the King and Lords to haue Thorpe their Speaker, delivered for the good exployte of the Parliament: whereupon the Dukes Councell declared the whole cause at large, whereupon the Lords demanded the o­pinion of the Iudges, whether in that case, Thorpe ought to bee deliuered out of prison by priuiledge of Parliament; The Judges made this answere, that they ought not to determine the priuiledge of that high Court of Parliament: But for Declarations of procee­dings in Law, Courts in case where writs of Superse­dias for the priuiledge of the Parliament to be brought vnto them, they answer; That if any person that is a member of the Parliament be arrested in such case as it be not for Treason or Fellony, or for surety of the Peace, or for condemnation had before the Parliament. It is vsed that such persons be released and may make At­torney, so as they may haue their freedome and liberty freely to attend that Parliament: Hereupon it was concluded, That Thorpe should still remaine in prison according to the Law. Notwithstacding, the priuiledge of Parliament, and that he was the Speaker, which re­solution was declered to the Commons by Walter Moile one of the Kings Serjeants [...]t Law, and then the Commons were commanded in the Kings name by the Bishop of Lincolne, in the Absence of the Arch-Bishop of Canterbury then Chancellor, to choose ano­ther Speaker.

[Page 20] It hath beene much doubted whether one ta­ken in Execution during the Parliament, may b set at liberty by writ of Parliament, as is to be serne in the first of Eliz. 4. Fol. 8. a, Dyer, 6 [...]. But at this day the Law is explained in that case by the Statute made, 1. lacob Cap. 19 Intituled [...] a [...]t for new ex­ecution to be si [...]ed against any who shall here after be de­livered out of prison by priuiledge of Parliament. And for discharge of them out of whose custody such priso­ners shall be delivered.

The forme of a Protection to be made by any person of eyther House of Parliament, vnto such of their Servants as may stand in danger of Arresting in time of Parliament.

Whereas by the ancient Priviledges Lawes and Cu­stomes of this Realme heretofore vsed and approved. The Lords Spirituall and Temporall, the Knights, Ci­tizens and Burgesses of the Parliament, have alwayes had their servants and followers priviledged and free [...] any molestation, trouble, arrest or imprisonment, for some certaine dayes, both before the beginning and after the [...] of the same. And where is at this time a [...] is summoned where myself being a Baron and Peere of the Realme (or Knight, or Burgesse) [...] to make my appearance, I understand not, [...] that you or some of you have now in your [...] [...] [...], Writ or [...], to modest, ar­ [...], [...] [...]. B. my [...] [...] in ordinary, [Page 21] whose attendance I haue speciall cause to vse and employ in matters which doe much concerne and import my e­state, and other occasions to be followed and solicited by him during this Sessions of Parliament. These are there­fore to Charge and Command you, and every one of you, both to withdraw the same Processe, Writ or Warrant, if any such bee; As also, if thereby you or any of you, haue molested, arrested, or imprisoned him the said J. B. within the Compasse of the foresaid dayes of priviledge; That the [...] vpon sight hereof, you presently set him at liberty, as you or any of you will answere the contrary. Given vnder my hand and Scale the 16. day of Februa, ry, 1627.

To all Maiors, Sheriffes, Bayliffes, Sergeants, Knights, Marshals-men, and all other his Majesties Officers.

R. S. The forme of a Letter directed to the Sheriffe of I. for discharge of a Seruant that is Arrested vpon Execu­tion, and during the time of the Parliament not­withstanding his Protection.

Mr. Sheriffe, whereas I was to be attended to the Parliament, I wanted one of my houshold servants, a Gentleman of mine, called B. to whom I had giuen a priuiledge for this Session of Parliament, to prevent any arrest or imprisonment for his debts, to the end he might waite on mee and prosecute my busines with more di­ligence and lesse danger of Interruption in that kinde. But I now vnderstand hee is in the Custody of the She­riffe of Middlesex, within the dayes limitted vpon an Execution of 1000. pounds, And that hee doth detaine him and will take no notice of my priuiledge vnder my hand and Scale, although it hath beene shewed him: I haue chosen rather to write to you then to take the Ancient priuiledges and liberties of the vppermost House of Parliament, and the honour of a Peere of this Kingdome into your friendly consideration, then that I would be offen siue to any of your subordinate Officers, in sending for them and the Plaintiffe by a Serieant at Armes, or to conuent them before the Lords for their contempt. And Mr. Sheriffe, I am further giuen to vnderstand, that the Deputy is brother to the vnder. Sheriffe, and that hee did execute the Office the last yeare, which is a plaine defrauding of the Law, not [Page 23] being three yeares betwixt them, being well knowne that his brother doth not intermeddle in the Office at all, nor taketh any notice at all what warrants are made foorth in his name, or of what writs are brought to his hands, for his Deputie doth take the whole benefit of the place into his owne hands. And by this meanes the vnder Sheriffe being in Glocestershire, he hath a collour as his Deputy not to take notice of our priuiledges being di­rected to the Sheriffe; herewith I thought good to ac­quaint you, expecting your answere and the release of my Seruant, otherwise, I purpose not to loose the priui­ledge of a Peere of the Realme. whilest it concernes our honour. And is no Indempnity to the Plaintiffe, whose Iudgement and Execution is in as much force and strength, by a late Statute to take hold of B. after­wards us it was before.

Concerning the vpper house of Parliament: first it is obserued, that thither commeth all Lords of the Parliament aswell Spirituall as Temporall, and they are summoned by the Kings writ also, but Separa­tim, and not by a generall writ to the Sheriffe of the County, as the Commons are summoned who [Page 24] are of the lower house of the Parliament, the forme of which writ is as followeth.

[...], &c. Charissimo consanguineo suo comiti [...] [...] de aduisamento & assensu confilij nostri, Pr [...] [...] [...] & vrgentibus negotijs nos Stat, & [...] [...] Regni nostri & Eccles. Anglicanis con­ [...] [...] quandam Parliamenium nostrum apud Civi­tate nostrum West [...] 1 [...]. dic Mar [...], Prox. futur, [...] [...] [...], & ibidem vobisc [...] ac cum Prela­tibus [...] [...] & proctrivus dicti Regni nostri Co­l [...] habere & tra [...]are; vobis sub side & legeancij quibus nobis [...]num [...]iter injug [...]nius Mandamus quad considerationem [...]rum negotiorum arduate & pericults in mentibus [...] executione quicun (que) dic [...] die & [...] personaliter intersitis nobiseum, ac cum Pro­latibus magnatibus & pre [...]bus supradictis negoti [...] [...] vestrum (que) consilium impensur. Et hoc sicut nos & [...]norem nostram, & rempublicam, & saluati enum, & defensionem Regni & Ecclesiae, predict expe­detionem (que) negotiorum dictorum diligitis nulla te [...] [...]. Teste me ipsu apud Westm. 18. die Ianuary Anno Regni nostri, &c.

At the first day appointed by the King for the Parlia ment vsually the King in person doth ride thither as it were to open the doore of their Authority, atten­ded by all the Lords Spirituall and Temporall in their Parliament Roabes. But if the King be let per E­ [...] or by other Causes, his Majesty may com­mand the adjornment of the Parliament to be held at some other day at his pleasure, as was done at the first day of the Parliament holden the first yeare of [Page 25] the late Queene Eliz. as appeareth in Dyer, Fol. 20. 3. a. When Parliament was prorogued by writ Pa­tent, vnder their entire great Seale and [...] with the hand of the Queens: by which Booke the printed Booke of the Statutes may be corrected.

And the King may vnder his great Seale assigne 2. or 3. of the Lords of the Parliament to supply his place in Parliament, if he be sicke, or will not come for any other cause, vt sactum fuit, Anno 31. Eliz, At which time the Archbishop of Canterbury, The Lord Treasurer of England, and the Earle of Derby, were Commissioners, vnder the great Scale appointed and assigned to represent her Majesties person in Parlia­ment,

And they doe sit ono space lower from the Cloath of Estate in the Parliament House, See Cromptons Courtes. Fol. 12. a.

By the Statute made Anno 23. Hen. 8. Cap. 21. It is thus defaced, the Assent of the King by his Let­ters Patents vnder the great Seale of England, and signed with his hand and notefied in his absence to the Lords of the Parliament, and Commons assem­bled in the higher House, is and euer was of as good force and strength as if the person of the King had bin there present; and had assented openly and pub­likely to the same. And such Royall assent as is a­foresaid shall be taken, for good and effectuall to every intent without any ambiguity of Custome or vsage to the contrary notwithstanding.

[Page 26] In this Court is attending, The Lord Chancellor of England, or the Lord Keeper of the great Seale, or some other [...]ge man as the King shall choose. By whom the King doth shew his mind to the Lords. And hee doth put them in remembrance of those things whic are to be treated there before the Lords, who if hee bee no Baron, or Peere of the Realme, sitteth neare the King behind the cloath of Estate, And is as the Spea­ker of the vpper house of Parliament.

In the 31' yeare of Hen. 8. Cap. 10. Intituled an Act concerning placing of the Lords in the Parlia­ment Chamber, and other assemblies and conferen­ces of Counsell. It is enacted as followeth. For as­much as in all great Counsels and Congregations of men having sundry degrees in the Common wealth, it is very requisite and couenient, that an order be had and taken for the placing and setting of such persons as are bound to resort to the same; To the intent that they knowing their places, may vse the same without displeasure or let of the Couneell: Wherefore the Kings most Royall Majesty, although it appertaineth to his Prerogatiue Royall to giue such honor, places and reputation to his Councellors and other his subjects as shall seeme best to his most excellent Majesty, He is neverthelesse pleased and [...]ented for an order to be had and taken in this his most high Court of Parliament, That it shall be inacted by authority of the same, in manner and forme as here­after followeth.

[Page 27] First, it is enacted by authority aforesaid, that no person or persons of what estate, degree or condition soever he or they be of (except onely the Kings Children) shall at any time hereafter attempt or presume to sit, and haue place at any side of the Cloath of State, in the Parliament Chamber, neither of th'one hand of the Kings Highnesse, nor on the o­ther: whether the Kings Majestie be there personaelly pre­sent, or absent, And for as much as the Kings Majestie is justly and lawfull supreame head in Earth, of the Church of England, vnder God. And for the exercise of the said most royall Dignity and Office, hath made Thomas Lord Cromwell, and Lord priuie Seale, his Vicegerent, for good and due ministration of Iustice to be had and vsed in all Causes and Cases touching the Ecclesiasticall Iurisdiction, and for the godly reformation and redresse of all Errors, He­resies, and abuses in the same Church. It is therefore enacted by authority aforesaid, That the said Lord Cromwell, having the said Office of Vicegerent, and all other persons who shall hereafter haue the said Office of the grant of the Kings Highnesse, his heires and Successors, shall sit and be placed as well in this present Parliament, as in all Parlia­ments what soeuer hereafter to be holden, on the right side of the Parliament Chamber; and on the same forme that the Archbishop of Canterbury sitteth vpon; and aboue the said Archbishop and his Successors, and shall haue place in every Parliament to assent or dissent, as other the Lords of the Parliament.

And it is enacted, that next to the said Vicegerent shall sit the Archbishops of Canterbury and Yorke, and then next him on the same forme and side the Bishop of Lon­don, and next to him on the same forme and side the Bishop of Duresme, and next to him, on the same forme and side, the Bishop of Winchester: and then all the other Bishops [Page 28] of both Provinces of Canterbury and Yorke shall sit and be placed on the same side after their ancienties, as it hath beene accustomed.

And for as much as such persons as now haue, or here­after shall happen to haue other great Offices of the Realme, That is to say, The Office of the Lord Chancellour, Lord Treasurer, Lord President of the Kings Councell, The Lord priuie Seale, The Great Chamberlaine of England, The Marshall of England. The Lord Admirall, The Grand Master or Lord Steward of the Kings most honourable Houshold; The Kings Chamberlaine, and the Kings Se­cretary, haue not beretofore beene appointed and ordered for the placing and sitting in the Kings most high Court of Parliament, by reason of their Offices, It is therefore now ordered, and enacted by authority aforesaid, That the said Lord Chancellour, Lord Treasurer, the President of the Kings Councell, and the Lord privie Seale, being of the de­grees of Barons, or aboue, shall sit and be placed as well in this present Parliament, as in all other Parliaments here­after to be holden in the left hand of the Parliament Cham­ber, on the higher part of the forme on the same side, aboue all Dukes (except onely such as shall be the Kings Sonne, the Kings Brother, the Kings Vnckle, the Kings Nephew, or the Kings Brother or Sisters Sonnes.

And it is also ordained, and enacted by authority afore­said, That the great Chamberlaine, the Constable, the Mar­shall, the Lord Admirall, the Grand Master or Lord Steward, and the Kings Chamberlaine shall sit and be pla­ted after the Lord priuie Seale, in manner and forme fol­lowing, That is to say; every of them shall sit and be placed aboue all other personages being of the same estate or degree, that they shall happen to be of; That is to say, the Great Chamberlaine first, the Constable second, the Marshall [Page 29] third: the Lord Admirall fourth: the Grand Master or Lord Steward sift, and the Kings Chamberlaine the sixt.

And it is also enacted by authority aforesaid, That the Kings chiefe Secretary, being of the degree of a Baron of the Parliament, shall sit and be placed aboue and before all other Barons, not having any of the Offices afore remembred, and if he be a Bishop, That then he shall sit and be placed a­boue all other Bishops, not having any of the Offices aboue remembred.

And it is also ordained and enacted by authority afore­said, That all Dukes not before mentioned, Marquisses, Earles, Viscounts, and Barons, not having any of the Of­fices aforesaid, shall sit and be placed after their ancientic, as it hath beene accustomed.

And it is further enacted, that if any person or persons which at any time hereafter shall happen to haue any of the Offices aforesaid, of Lord Chancellour, Lord Treasurer, Lord President of the Kings Counsell, Lord priuie Seale, or chiefe Secretary, shall be vnder the degree of a Baron of the Parliament; By reason whereof they haue no interest to giue any assent or dissent in the said house: That then in eue­ry such Case, such of them as shall happen to be vnder the said degree of ae Baron, shall sit and be placed at the vpper­most part of the Sackes, in the middest of the Parliament Chamber, either there to sit vpon one forme, or vpon the vp­permost Sacke: The one of them aboue the other in order as [...] aboue rehearsed.

Be it also enacted by authority aforesaid, that in all tryals of Treason by Peeres of this Realme: If any of the Peeres that shall be called hereafter to be Tryers of such [Page 30] Tredson, shall heppen to have any of the Offices afore said, That then they having such Offices, shall fit and be placed according to their Offices, aboue all th'other Peeres that shall be called to such tryals, in manner and forme as is above mentioned and rehearsed.

And it is also enacted by authority afore said; That as well in all Parliaments, as in the Starchamber, and in al other Assemblies, and Conferences of Councoll: The Lord Chancellour, the Lord Treasurer, the Lord President; the Lord privie Seale, the Great Chamberlaine, the Con­stable, the Marshall, the Lord Admirall, the Grand Ma­ster or Lord Steward, the Kings Chamberlaine, and the Kings chiefe Secretary, shall sit and be placed in such order and forme as is aboue reharsed, and not in any other place, by authority of this present Act.

And in Sir Edward Cokes 11. part, fol. 1. The cause concerning priority of place in the vpper house of Par­liament was as followeth, at the Parliament held the 39. Eliz. The case was thus:

Thomas Lawarre Knight, Lord Lawarre, sonne and heire of William, sonne and heire of George, Brothe and heire of Thomas, Sonne and keire of Thomas Lord Lawarre, exhibited his petition to the Queene to this effoct, That whereas Thomas the Great-grand-father was called to Parliament by Writ of Summons, 3. H. 8. and afterwards this Thomas the Great-grand-father dyeth; After whose death, Thomas his sonne, was cal­led to divers Parliaments by Writ of Summons. And afterwards by act of Parliament 3. E. 6. for divers cau­ses in the said act mentioned, it was enacted. That the said William during his life, should be disabled to claime or enjoy any dignity or superiority, in any right, estate, &c. by discent, remainder, or otherwise. And after­wards [Page 31] the said Thomas the sonné of Thomas dyeth; af­ter whose death the said William being disabled, was not called to any Parliament, by writ of Summons, [...]ill Queene Elizabeth called him to Parliament by writ of Summons, and sitteth as yongest Lord of the Parlia­ment: And afterwards lie dieth, and now the said Tho­mas his sonne being called to Parliament by writ of Summons, [...]th to the Queene that he may haue place in Parliament, of his Great-grand-father (that is to say) betweene the Lord Berkley and the Lord Willoughby of Eresby: And the said petition was indorced in these words; Her Majesty hath commanded mee to sig­nific to your good Lordships, that vpon the humble suite of the Lord Lawarre, Shoe is pleased that the matter shall be considored and determined in the House.

Robert Cecill.

Which petition being read in the vpper house of Parliament: The consideration of this was referred and committed to the Lord Burley, Lord Treasurer of England, and divers other Committees, who at his Chamber at Whitehall heard the learned Councell on both sides, in the presence of the two chiefe Justices, and divers other Iustices: And two objections were made against the Lord Lawarre: first, insomuch that his Father was disabled by act of Parliament to claime the dignity: The petitioner may not convay by him who was disabled, as heire to his Great-grand-father, and by consequence he may not have the place of his Great-grand-father.

But it was resolved by all the Iudges, That there was a difference betweene a personall and a Temporary disability, and absolute and perpetuall disability: As [Page 32] whereas one is attainted of Treason or Fellony; this is absolute and perpetuall disability by corruption of blood, for any of his posterity to claime any heredita­ment in Fee simple, either as heire to him, or any o­ther: But disability by Parliament without any Attain­der, to claime the dignity for his life; That is Perso­nall disability for his life onely, and his heires after his death may claime as heire to him, or any other Ance­stor above him: The second objection is, that the said William hath accepted new Creation of the Queene; which dignity newly gained, discendeth to the petitio­ner which may not wave: and for that the Petitioner may not have other place then his Father had.

To this it was answered and resolved, that th'accep­tance of a new Creation by the said William, may not hurt the Petitioner, because the said William was at that time disabled, and in truth he was no Baron, but onely an Esquire; so that when th'old and new dignity discended together, th'old shall be preferred: which resolution was well approved by all the Lords Com­mittees, which was accordingly reported to all the Lords of the Parliament, and allowed by them all: whereupon it was ordered by the Lords, that the Queen should be acquainted with this by the Lord Keeper, which was done accordingly.

Whereupon at the said Parliament, the Lord La­warre in his Parliament Robes, was by the Lord Zouch supplying the place of the Lord Willoughby, within age at that time; And the Lord Berkley also in his Robes, brought into the house, and placed in his said place (that is to say) next after the Lord Berkley, Garter King at Armes attending vpon him, and doing his Office.

In the vpper house of Parliament doth sit the Justi­ces vpon sacks of Wooll, in medir Camere; who are [Page 33] called thither by the Kings Writ, quod personaliter inter sitis nobiscum ac cum ceteris de consilio nostre predict is negotiis, tractat vestrumque consilium impensurum: And this negotia be Ardua & vrgentia negotia Regni, &c. And their oath amongst other things is, that they shall counsell the King truely in his businesse, but they haue no voyce among the Lords.

If the Reader be desirous to see particular cases hap­pening in Parliament, wherin the opinion of the Iudges there had beene recreated: And how their opinions delivered in Parliament ought to be regarded, he may reade at large in Egertons post [...]nati. fol. 16. & se­quentum.

If a Writ of Error be brought in Parliament vpon a Iudgement given in Kings Bench; The Lords of the Higher house onely, without the Commons are to ex­amine the Errors, and that is by th'advice and counsell of the Iudges, who are to informe them what the Law is, and so to direct them in their Iudgement, and if the Iudgement be reversed, then commandement is to be given to the Lord Chancellour to doe execution accor­dingly. And so was done in the 7. of R. 2, in a Writ brought in Parliament by the Deane and Chapter of Litchfeild, against the Prior and Covent of Newport Pannell, as appeareth by the Record. And if the Iudge­ment be affirmed, then the Court of Kings Bench are to proceed to execution of the Iudgement, as appeareth in Howerdewes case, 1. H. 7. fo. 19.

But it is to be noted, that in all such Writs of Er­rors, the Lords are to proceed according to the Law, and for their judgement therein, they are informed and guided by the Iudges, and doe not follow their owne opinions, or discretions. See Egertons post [...]nati fol. 23.

There doth also sit the Secretaries of estate, who are [Page 34] to answer such Letters or things passed in the Councell whereof they have the keeping; And with them the Master of the Roles; But they have no voice in Parli­ament, if they be not of the degree of a Baron.

Note by Kirby, Clerke of the Roles of the Parilia­ment: It is thus in the Bookes of the Law, the 33. H. 6. cap. 17. If a Bill come first to the Commons, and they doe passe it; then the vse is to indorse it in this forme, Soyt Bayle a seigneures: And then if the Lords nor King doe not alter the Bill, then it shall be inroled by the Clerke of the Parliament: and if the Bill passe, then it shall be Inroled, but if it be a particular Bill, then it shall be filed vpon filaces, and that shall suffice, vnlesse the party whom it particularly concernes will sue to haue it Inroled, that it may be Inroled to be sure.

If the Lords will alter a Bill, sent to them from the Commons house, in a thing that may stand with the Bill, they may doe so without remanding to the Com­mons. And if the Commons doe grant domage for foure yeares, and the Lords will grant it but for two yeares, this Bill shall not be delivered againe to the Commons: But if the Commons doe grant but onely, for two yeares, and the Lords doe grant it for foure yeares, then the Bill must be remanded vp to the Com­mons, and in that case the Lords must make a Scedule of their intent, or else indorsed in this forme, Les seig­neures se assent pur durar pur quater anne: And when the Commons have the Bill againe, if they doe not assent to it, then it is no Act or Statute; and if the Commons doe consent, then they doe indorse their answer vpon the Margent within the Bill in a certaine forme.

And then it shall be delivered vnto the Clerke of the Parliament, vt supra.

If the Bill be first delivered to the Lords, and the Bill [Page 35] doth passe them, they vse not to make any indorse­ment, but to send the Bill to the Commons, and if it [...]sse them also, it is vsed to be thus indorsed, Les Com­ [...]ones fout assentant, &c. And therefore if Iohn at Stile lie attainted of Trespasse by Parliament, if hee doe not come in by such a day, he shall forfeit such a sum. And the Lords doe giue a longer day, if it doe not come to the Commons againe, it is no Act or Statute, because it was not remanded againe to the Commons after the enlargement of the day given by the Lords.

Every Bill that doth passe the Parliament in both Houses, shall have relation to the first day of the Par­liament: And the vse is, not to make mention what day the Bill was delivered into the Parliament: If no day be specially appointed by the Statute, when it shall Commence: As if one Parliament be holden by divers prorogations, Plowdens Commentaries fol. 79. a. 6.

If a Parliament doe Commence before Penticost, and hath continuance after Penticost, and the Commons doe agree to a Bill after Penticost, and in the same doe give day till Penticost next comming; and the Lords doe so also, because the Bill shall have no relation the first day of the Parliament. Therefore if it be not pre­vented, it shall be taken for that Penticost that is past at that Sessions, whereas th [...]intent of the Lords and Commons was, that it should be a future Penticost af­ter that Penticost mentioned in the Bill. See Brookes Prerogatives and Parliaments. 4.

The Barons in the vpper house of Parliament may [...] some cases give their voyces by procuracie, not so [...] the Commons house, and those Procters must be Ba­rons, and of the Higher house of Parliament. But in the Cōmons house of Parliament it is otherwise, for the Clarke of the Parliament take the notice of the most [...]ands or voyces sounding at once. And therefore if [...] [Page 36] their assent be issuable, the Clergie may say Per majo­rem-numerum generalis. So in case of Election of Crowner or a Knight of the parliament. See Plowdens Commentaries. 126, a.

All the priviledges which doe belong to those of the Commons house of parliament: a fortiori doe appertait to all the Lords of the vpper house; for their, persons are not onely free from arrests during the Parliament, but during their liues, neuerthelesse th'originall cause is by reason they haue place and voyce in Parliament: And this is manifest by expresse authorities grounded vpon excellent reasons in the Bookes of Law.

And if a Baron, Viscount, Earle, Marquesse or Duke, of England bring any action reall or personall, and the defendant pleadeth in abatement of the Writ, That h [...] is no Baron, Viscount, Earle, &c. And thereupon the demaundant or plaintiffe pleadeth in abatement of the Writ, and taketh issue; This Issue shall not be tryed by a Jury, but by the Records of the Parliaments wh [...] ther he or his ancestors, whose heire he is, were cal­led to serue there as a Peere, or one of the Nobi­lity of the Realme, See sir Edw. Cokes 6 part. 53. & part. fol. 17. a.

In the ancient Britanes and Saxons Kings dayes, the Archbisheps and Bishops were called to their Parlia­ments, or other assemblies of State; which was do [...] ­not so much in respect of their tenures, for in those dayes all their tenures were Francki Almonage, but e­specially because the Lawes and Councels of Men were then most currant and commendable, and had a mor­blessed issue and successe, when they were grounde vpon the feare of God, the root and beginning of wise dome. And therefore our wise and religious Ancestor called thither those chiefe and principall persons [...] the Clergie, who by their place and possession, by the [...] [Page 37] gravities, learning and Wisedome might best advise them, what was the law of God, his acceptable will and pleasure: That they might from their humane Lawes answerable, or at the least not contrary or re­pugnant thereunto. Neuerthelesse shortly after the Norman Conquest, the Conquerour altered the tenure of the Bishoprickes, not without some complaint and griefe of the Clergie, as it is mentioned in Mathew Pa­ris, Anno 1070.

And in the Constitutions of Clarendon, in the time of H. 2. Anno 1164. It is expressed in the eleaventh Article.

Thereby we see the presence of the Bishops in Par­liament, in respect of their Baronies, quousque Perue­niatur addimiaicionem, &c. for so even vnto our times, when question is had of the Attainder of any Peere, or other in Parliament; the Archbishops and Bishops de­part the higher house, and doe make their Proctors; for by the decrees of the Church, they may not be Judges of life and death. Ever since the Conquest the Archbishops and Bishops haue no title to have place and voyce in Parliament, but onely in respect of their Temporall Baronies.

And it is to be observed, that although of latter times the vse and manner of pening of Satutes, is that it is enacted by the Lords Spirituall and Temporall, and the Commons in the same assembled: yet the ancient forme was not so, which you may see exemplified in Sir Edward Cokes 8. part. fo. 19.

And good Acts of Parliaments may be made, though the Archbishops and Bishops would not consent there­unto: for a Statute was made Anno 1196. by the King, the Barons, and the Commons (Clero excluso:) And this was at a Parliament holden at Saint Edmundsbury, in the raigne of E. 1. as it is reported by Iewell Bishop [Page 38] of Salisbury against Harding. fo. 620. And in the pro­uince of Mirton, in the time of H. 8. 1272, a matter was moved of Bastardy, touching the legitimation of Ba­stards, borne before Marriage; where it is said, That the Statute did passe intirely with the Lords temporall, against the wils of the Lords spirituall: which Statute is in the Bookes in the 20 yeare of H. 8. 3. c. 9.

And in the 11. yeare of R. 2. cap. 3. It is enacted, that the Appeales, Pursuits, Accusements, Processes, Iudge­ments, and Executions, made and given in this present Parliament, be approved, affirmed and established; as a thing duely made for the weale and profit of the King our Soveraigne Lord, and of all the Realme, notwith­standing that the Lords Spirituall and their procurators did absent themselves out of the Parliament, the time of the said Judgement given, for the honesty and salua­tion of their estates, as it is contained in a protestation made by the Lords Spirituall; and their procurators de­livered in this present Parliament.

See Kelbaucyes Booke, fo. 184. in the 7. H. 8. The Iu­stices did say, that our Soveraigne Lord the King may well hold his Parliament by him and his Temporall Lords, and by the Commons also, without the Spiri­tuall Lords, for the spirituall Lords have not any place in the Parliament Chamber, by reason of their spiritu­alties, but onely by reason of their Temporall pos­sessions.

The Soveraigne power of this high Court of Par­liament is this; That albeit the Kings Majestie hath many great priviledges and prerogatives, yet ma­ny things there are, not effectuall in Law, to passe vnder the great Seale by the Kings Charter without Parlia­ment: as vpon this point it was resolved by all the Judges in the Princes case, That the Dukedome of Cornewall, &c. did not, nor could passe from E. 3. by [Page 39] his Charter made in Parliament; That his Sonne and heire apparant, and to his heires informe, as it was in­tended and made in Anno 11. of his raigne. But of ne­cessity it was, and so was done by authority of Parlia­ment: which Case is notable and worth the reading. See Sir Edw. Cokes 8. part. fo. and his 7, part. fo. 7. a. The King by his Letters Patents may make a devision but cannot naturalise him to all purposes, as an Act of Parliament may doe; for the Kings Charter cannot make any hereditable, in this case, that by the common Lawes cannot inherit. And herewith agreeth the 36. of H. 8. Denizon Brooke.

Bracton in the beginning of his second Booke, saith; Nihil aliud potest Rex in terris cum sit dei minister & vicarius quam quod de jure potest: and a little after, Ita (que) Potestas sua est Iuris non injuria & sicut sit au­thor Iuris non debet inde Injuriam nasci occasio vnde jura nascuntur.

And it appeareth in Fitzharberts natura Breuium 222 in the Writ ad quam damnum, that every grant of the King or gift, hath his condition expressed or im­ployed, as by the Law annexed to it; Itaque quod per adonationem illam patria magis solito non overetur sui grauetur.

And therefore it was resolved by all the Iudges 4. Ia­cobi, that they who digge for salt-Peter, may not dig within the Mansion house of any Subject, without his assent, for the manifest inconveniences that thereby may grow to the owner of the house. See Sir Edward Coke 11. part. 82.

Also the Commission to be made, the purveyers for Timber, for the Kings. vse; yet they cannot by that au­thority make Timber Trees growing vpon any mans Freehold: for that is prohibited by Magna Carta ca. 21. nos necballi [...]i nostrinec alij capemus boscum alie­num [Page 40] ad castra vel ad alia agenda nostra nisi per volun­tatem cuius boscus ille fuerit.

A Commission was awarded to take singing Boyes in Cathedrall Churches, or in other places where such are instructed for the furnishing of the Kings Chap. pell; these generall words by construction shall haue a reasonable vnderstanding: That is to say, such children who be taught to sing, thereby to acquire or get their livings, such may be taken for the Kings service; But the sonne of a Gentleman, or any other, who is taught to sing for his recreation, ornament, or delight, may not be taken against his will, or against the will of his parents, or friends, and so it was resolved by all the Iudges, and whole Court of Starre Chamber 43. Eliz.

If a man be attainted of Felony or Treason, by Ver­dict, Outlary, Confession, &c. his blood is corrupted: which is a perpetuall and absolute disability for him or his posterity, to claime any hereditament in Fee-sim­ple, either as heire to him or any Ancestor Paramount him, and he shall not be restored to his blood without Parliament: and the King may give to any attainted person his life, by this Charter of Parliament. See Stamfords pleas 195. For the King cannot alter the CommonLaw, or the generall customes of the Realme, such as the discent of Gauill kinde, Borough, English, or such like, without Parliament. See Brooks Prero­gatiue 15. & 11. H. 4. c. 73.

And it is set downe for a rule; That if a King haue a Kingdome by discent there, seeing by the Law of that Kingdome he doth inherit that Kingdome, he cannot change those lawes of himselfe, without consent of Parliament.

Fortesough also saith in his 9, c. fo. 25. 6. If the pow­er of the King over his Subjects were Royall onely, and [Page 41] not politicke, then he might change the Lawes of the Realme, and charge his Subjects with Tallages and o­ther Burdens, without their consent. And such is the dominion of the Civil Law purports, when they say, quod priueipi placuit legis hahet vigorem. But by the lawes of this Kingdome, the King cannot by his Pro­clamation alter the Law; But the King may make pro­clamation that he shall incurre the indignation of his Majestie, that withstanding it. And by his absolute authority, the King may commit ony one to prison during his pleasure, see Stamford 72. But the penalty of not obtaining his proclamation, may not be vpon paine of forfeiture of his goods, his Lands, or his life without Parliament. see Cromptons Courts 14. a. & 16. 6. sed omnes non capit hoe verbum: for they of ano­ther profession in Law say, that of these two, one must needes be true, that either the King is above the Par­liament, that is the positive law of the Kingdome; or else, that he is an absolute King, Arest. leb. Plict. c. 16. And therefore though it be a mercifull pollicie, and al­so a polliticke mercy; not alterable without great pe­rill, and to make Lawes by the consent of the whole Realme, because no one party shall have cause to com­plaine of a partialitie, yet simply to bind the King to or by those lawes, were repugnant to the nature and constitution of an absolute Monarchy.

In some speciall cases there sometimes may be li­king of Subjects without land of possession, as in the go­vernment which Moses had over the children of Israel; in the Wildernesse, and in the case which Sir Iohn Popham, the late Lord chiefe Iustice, did put in the Par­liament, If a King and his Subjects be driven out of his Kingdome by his Enemies, yet notwithstanding he continueth still King over his subjects, and they still are bound to him by their bonds of allegiance, where­soever [Page 42] they be: But he cannot be a King without Sub­jects, for that were Imperium inbellans & Rex & Sub­ditae sunt relatiua,

I beleeve Salomon that saith, per me reges regnant & Principes insta dicerunt, and I make no doubt, but as God ordained Kings, and hath given Lawes to Kings themselves, so he hath authorized and given power to Kings to give Lawes to their Subjects, and so Kings did first make Lawes, and then ruled by their Lawes, and altered and changed their Lawes from time to time as they saw occasion, for the good of themselves and of their Subjects.

By the Premisses it appeareth, that Acts of Parliament and Statutes are made in this high Court of Parliament by the King, with the consent of the Commons, or by the greater part of them, for so saith Littleton in the 15. E. 4. fo. 2. a.

In the Parliament, if the greater part of the Knights of the shiere doe 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 perpetum: and that the law of Maior pars is so in all Counsels, Electi­ons, &c. both by the rules of the Common law and the Civill, and Common Law also.

In this Court of Parliament, they doe make new po­sitive Lawes or Statutes, and sometimes they inlarge some of them, as vnto them seemeth good: and it is good counsell, that in making of lawes, quod eius fieri p [...]ssit, quam plurima legibus difinientur quam pacissima vera ludicis arbitrio relinquantur, Yet for so much as every considerable circumstance cannot be fore-seene at the time of the making of the law, for, rerum pro­gressus ostendunt multa quo in mitio Preeaueri seu pro­deri not possunt. Therefore by the very intent of the makers of the Statute, they doe many times leaue to be [Page 43] supposed by the discretion of th'executioner of the Law, that thing which was not conueniently compre­hended before hand, by the wisedome of the Authors of the fame: for the expounding of the Lawes doth ordinarily belong to the reuerend Judges, and in case of greatest difficulty of importance, to the high Court of Parliament. See Plowdens Commentaries, sol. 363. a. 364, & 365.

And the Judges doe say, that they may not make any interpretation against the expresse words of the Sta­tute, where th [...]intent of the makers of the Law doe ap­peare to the [...], and where no inconuenience by the Statute shall ensue: for in such cases A verbis legum non est [...].

But to exemplifie all the severall kinds and formes of penning them, and the words of them taken and con­strued, sometimes by execution, sometimes by restri­ction, sometimes by implication, sometimes by dis­iunction, sometimes a disiunctiue for a copulatiue, som­times a copulatiue for a disiunctiue, the present tence for the future, the future for the present, sometimes by equitie out of the reach of the words, sometimes taken in a contrary sence, sometimes singularly, as Continens pro content, and such like, will aske a volume by itselfe, and in my opinion is not incident to this discourse of the Iurisdiction of high Court of Parliament.

Hereunto is annexed A briefe Abstract of the worthi­nesse of, and some memorable mat­ters done by PALIAMENT in this Kingdome of ENGLAND.

By Parliaments all the wholesome fundament [...] Lawes of this Land were and are established an [...] confirmed.

By Act of Parliament the Popes Power and [...] pre [...]acie, and all superstition and Idolatry are [...] gated, abolished and banished out of this Land.

By Act of Parliament Gods true Religion, wor [...] and seruice are maintained and established.

By Act of Parliament the two famous vniver [...] ­ties of Cambridge and Oxford haue many wh [...] some and helpefull Immunities.

By Parliament one P [...]erce Gaveston, a great [...] ­vorite and notable misleader of K. Edw. 2. was [...] moved, banished, and afterwards by the Lords e [...] ­ecuted.

By Parliament Empson and Dadley, two n [...] ­rious Polers of the Common wealth, by exacting [Page 45] [...]all Lawes on the Subiects, were discovered, and afterwards executed.

By Parliament the damnable Gunpowder-Treason (hatched in Hell) is recorded to be had in eternall Infamie.

By Parliament one Sir Giles Mompesson, a Mo­derne Caterpiller and poler of the Common Wealth, by exacting vpon Inholders, &c. was discovered, degraded from Knighthood, and banished by Pro­clamation.

By Parliament Sir Francis Bacon, made by King Iames Baron, Vera [...]m and Viscount St. Alb [...]nes, and Lord Chancellour of England, very grievous to the Common wealth, by bribery, was discovered and displaced.

By Parliament Sir Iohn Bennit Iudge of the Pre­v [...]gatiue Court pernicious to the Common-wealth in his place, was discovered and displaced.

By Parliament Lyonell Cra field (sometimes [...] Merchant of London) made by K. Iames Earle of Middlesex, and Lord Treasurer of England, hurtfull in his place to the Common wealth, was dis­covered and displaced.

By Parliament one Sir Francis Mitchell, a jolly Iustice of Peace for Middlesex in the Suburbes of London, another notable Cankerworme of the Com­mon-wealth, by corruption in exacting the penall Lawes vpon poore Alehouse-keepers and Victual­lers, &c. was discovered degraded from Knight­hood, and vtterly disabled for being Iustice of Peace.

[Page 46] By Parliament Spaines late fraud was discove­red, and by Act the two Treaties, with that persi­dious Nation, for the match of the Prince, our now gracious King; and restitution of the Palatinato were dissolved and annihilated: both which had co [...] the King and his Subjects much monie, and much blood. We may remember that that sage Counceller of State Sir William Cecill Lord Burleigh and Lord Treasurer of England, was oft times heard to say, He know not what an Act of Parliament might not doe: which sage saying was approved by King Iames, and by his Maiestie alleged [...] one­of his published speeches.

Which being so, now the face of Christendome be­ing at this present so torne and [...]ably [...]serated, and the Christian World stra [...] the Gospell in places, almost persecuted, both Ch [...]h and Com­mon-wealth where the Gospell is [...] [...] pla­ces beyond the Seas, lying a ble [...]ding (as wee may say) and we our selves at home not without feare and danger. To conclude, what good may we not hope and pray for, by this present and other ensuing Par­liaments: the onely meanes to rectifie and remedy matters in Church and Common-wealth much a [...]asse. Amen.

Vivat Rex

Flore [...]t Reg [...]m

Benevaleat Parlamentum,


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