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.

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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, 'twill 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 [...] [Page]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 Ʋndertaking.

All Members ought to be throughly skill'd in Parliamentary Affairs, to know their own Laws and Customs, their Powers and Priviledges, that [Page]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 [Page] 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
  • [Page]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.
  • [Page]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 Common­wealth 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, Ʋniversitas 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 in Parliament are the King or Queen, Sir Tho. Smith's Common­wealth, 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 [Page 3]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 [Page 5]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) [Page 6]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, [Page 7]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 Common­wealth, 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 [Page 8]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 [Page 9]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 [Page 10]to the Law and Usage of Parliament, Sir R. At­kyns Ar­gument, &c. 14. is properly, and in the Judgment of the Law, the Act of the whole Parliament: and what concerns the one, must of necessi­ty concern the whole; not meer­ly by Consequence, but by an im­mediate Concernment, as being one and entire.

The three Estates of Parliament are one entire Body,Id. 34, 41, 51, 55. and Corpora­tion: all their Powers and Privi­ledges in the Right of them, and in the Title to them, are entire, per my & per tout, and belonging to the whole Body of the Parlia­ment; tho' in the Exercise of those Powers, and sometime in the Claim of them, they are distin­guish'd; and in the Practise of their Powers, they are in many Things distributed into Parts.

All the Estates in Parliament are all call'd by one common Name,Ibid. as Commune Concilium Regni, Mag­na Curia, they are one Body Poli­tic. It is said by Fineux Chief [Page 11]Justice, That the Parliament at the Common-Law consists of the King, Lords, and Commons, and they are but one Body Corporate.

The Liberties and Franchises of the Parliament, Id. 55. in the Right of them, are entire, and due to both Houses, for both make up the Par­liament.

Knighton (one of our best Hi­storians) doth notably disclose the ancient ends of calling Parliaments, Knyghton de Eventi­bus Angliae, l. 5. f. 2681. Col. 1, 2. Petyt's Rights, &c. in Pref. p. 43, 44. in saying, Quod ex Antiquo Statu­to, & Consuetudine laudabili & ap­probata, &c. That by an ancient Statute, and Custome laudable and approved, which no man could de­ny, the King was once in the year to convene his Lords and Commons to his Court of Parliament, as to the highest Court in the whole Realm, [In qua omnis Aequitas re­lucere deberet absque qualibet Scru­pulositate vel nota, tanquam Sol in Ascensu Meridiei; ubi Pauperes & Divites pro Refrigerio Tranquili­tatis & Pacis, & Repulsione Injuria­rum, [Page 12]Refugium Infallibile quaerere possent, ac etiam Errata Regni re­formare, & de Statu & Guberna­tione Regis & Regni cum Sapienti­ori Concilio tractare; ut Inimici Regis & Regni Intrinseci; & Hostes Extrinseci destruantur & repellan­tur, qualiter quoque Onera incum­bentia Regi & Regno levius ad E­diam Communitatis Supportari po­tuerunt.] i. e. In which Court all Equity ought to shine forth without the least Cloud or Sha­dow, like the Sun in its Meridian Glory; where Poor and Rich, re­freshed with Peace and Ease of their Oppressions, may always find infallible and sure Refuge and Succour; the Grievances of the Kingdom redressed, and the state of the King and Government of the Realm debated with wiser Councels; the Domestick and Fo­reign Enemies of the King and Kingdom destroy'd and repelled, and to consider how the Charges and Burthens of both may be sustained [Page 13]with more Ease to the People.

The House of Lords cannot ex­ercise any Power,Sir R. At­kin's Argu­ment, f. 51. as an House of Parliament, or as a Court for Er­rors, without the House of Commons be in Being at the same Time. Both Houses must be prorogued toge­ther, and dissolved together.

By the Law, Parliaments ought to be very frequent.Id. 59. Before the Conquest (as it is untruly call'd) by the Law, Parliaments were to be held twice a year, as appears by King Edgar's Laws. So it was ordained by King Alfred. By the Stat. of 4 Ed. 3. c. 14. Parliaments ought to be once a year, and oftner, if need be. And in 36 Ed. 3. c. 10. to be once a year, without Restri­ction, if need be. By 16 Car. 2. c. 1. these Acts are declared to be in Force: and further it is decla­red and enacted, That the holding of Parliaments shall not be disconti­nued above three years at the most.

The Parliament is a Court of very great Honour and Justice,Plow. Com. 398. of [Page 14]which no man ought to imagine a Thing dishonourable.

An Offence committed in Par­liament is a very high Offence;Sir R. At­kyns. Arg. 60. but the higher it is, the more proper it is for their Judicature; and that Court is arm'd with a Power to punish the highest Offences, and the highest Offenders.

A Parliament may err,Ibid. for they are not infallible; but the Law hath provided a Remedy against those Errors, and a way to reform them. A subsequent Parliament may reform the Errors of a prece­ding Parliament.

But to say that they will be Par­tial,Ibid. or Unjust, or Corrupt, or do any Thing out of Malice, is to raise a Scandal upon the whole Nation, whose Representative they are.

If any Offence whatever be committed in the Parliament by a­ny particular Members;Ibid. it is an high Infringment of the Right and Priviledge of Parliament, for any [Page 15]Person, or Court, to take the least Notice of it, till the House it self either has punish'd the Offender, or referred them to a due, or pro­per Course of Punishment. To do otherwise, would be to make the Highest Court an Offender, and to charge them with Injustice.

Their Right and Priviledge so far extends,Id 61. that not only what is done in the very House, sitting the Parliament; but whatever is done relating to them, or in pursuance of their Order, during the Parlia­ment, is no where else to be pu­nish'd, but by Themselves, or a succeeding Parliament, tho' done out of the House.

Either House doth ever for the most part shew it self so careful to keep firm Correspondence with the other,Sir Simon d'Ewes Journal, 186. as that when a Bill hath pass't either of the said Houses, and is sent to the other, it doth for the most part pass, and is neither dash'd, nor alter'd, without very great Cause upon mature delibera­tion, [Page 16]and usually also not without Conference desir'd, and had there­upon; that so full Satisfaction may be given to that House, from which the Bill so rejected, or alter'd, was sent.

Pessima Gens humani Generis al­ways abhorr'd a Parliament: Preface to Petyt's Miscel. Parlemen­tar. and the reason thereof is demonstra­tive; because they all knew they shou'd then be call'd to an impar­tial and strict Account, and be pu­nish'd according to their Deme­rits.

It was said by the Lord Bacon to Sir Lionel Cranfeild, Ibid. newly made Lord Treasurer, That he would recommend to his Lord­ship, and in him to all other great Officers of the Crown, one con­siderable Rule to be carefully ob­serv'd, which was, Remember, a Parliament will come.

The King at no Time stands so highly in his Estate Royal,Petyt's Mis­cel. Parlia­ment. 9. Vid. Cromp. Jur. 10. as in the Time of Parliament; wherein the King as Head, and they as [Page 17]Members, are conjoyn'd and knit together into one Body Politic: so as whatsoever Injury (during that Time) is offer'd to the meanest Members of the House, is to be judged as done against the King's Person, and the whole Court of Parliament.

The Prerogative of Parliament is so great,Ibid. That all Acts and Pro­cesses coming out of any inferior Courts, must cease, and give place to the highest.

Statutes in England are made not only by the Princes Pleasure,Fortescue 40. a. but also by Assent of the whole Realm: so that of Necessity they must pro­cure the Wealth of the People, and in no wise tend to their hindrance.

It cannot otherwise be thought,Ibid. but that they are replenish'd with much Wit and Wisdom, seeing they are ordain'd, not by the Device of one man alone, or of a hundred wise Counsellors only, but of five hundred and odd Men that ought to be freely Elected by the People.

CHAP. II. Power of Parliament.

THE most High and Abso­lute Power of the Realm of England, Sir Tho. Smith's Common­wealth, l. 2. c. 2. p. 72. Arcana Parl. 1. consisteth in the Parlia­ment. For as in War, where the King himself in person, the Nobili­ty, the rest of the Gentility, and the Yeomanry are, is the Force and Power of England: So in Peace and Consultation, where the Prince is to give Life, and the last and highest Commandment, the Baro­ny or Nobility for the higher; the Knights, Esquires, Gentlemen and Commons for the lower part of the Commonwealth; the Bishops for the Clergy be present to advertise, consult and shew what is good and necessary for the Commonwealth, and to consult together; and up­on mature deliberation; every Bill or Law being thrice read and dis­puted in either House, the other two parts, first each a part, and [Page 19]after the Prince himself in presence of both the Parties doth consent unto, and alloweth, that is,Ibid. p. 73. the Prince's and whole Realm's Deed; whereupon justly no man can complain, but must accommodate himself to find it good, and obey it.

That which is done by this Consent is called firm, stable and sanctum, and is taken for Law.

The Parliament abrogateth old Laws. 2. Maketh new.Sir Tho. Smith. ibid. Arc. Parl. 2. Vide Crompt. Jur. 3. 3. Giveth order for things past, and for things hereafter to be followed. 4. Changeth Right and Possessions of private Men. 5. Legittimateth Bastards. 6. Establisheth Forms of Religion. 7. Altereth Weights and Measures. 8. Giveth Form of Succession to the Crown. 9. De­fineth of doubtful Rights whereof is no Law already made. 10. Ap­pointeth Subsidies, Tallies, Taxes and Impositions. 11. Giveth most free Pardons and Absolutions. 12. Restoreth in Blood and Name. [Page 20]13. As the highest Court condem­neth or absolveth them who are put upon their Trial. And to be short, 14. All that ever the Peo­ple of Rome might do, either Cen­turiatis Comitiis or Tributis, the same may be done by the Parlia­ment of England; which represent­eth, and hath the Power of the whole Realm, both the Head and Body: For every English-man is intended to be there present, either in Person, or by Procuration, and Attorny, of what preheminence, state, dignity or quality soever he be, from the Prince (be he King or Queen) to the lowest Person of England. And the Consent of the Parliament is taken to be every man's consent.

As for the Power of Parliaments over both the Statute and Com­mon Law of this Realm,Rastal's Statutes, fol 546. 25 H. 8. c 21. you will be best informed of it from the memorable words of an Act of Parliament it self, which are as fol­loweth, viz. Whereas this Realm [Page 21]recognizing no Superiour under God, but only the King, hath been, and is free from Subjection to any Man's Laws, but only to such as have been devised, made, and ordained with­in this Realm, for the Wealth of the same, or to such other as by Suffe­rance of the King and his Progeni­tors, the People of this Realm have taken at their free Liberty by their own Consent to be used amongst them, and have bound themselves by long Ʋse and Custom to the Ob­servance of the same; not as to the Observance of the Laws of any Fo­reign Prince, Potentate or Prelate, but as to the Custom and ancient Laws of this Realm, originally e­stablished as Laws of the same, by the said Sufferance, Consents and Custom, and none otherwise. It standeth therefore with Natural E­quity and Good Reason that all and every such Laws Humane, made within this Realm by the said Suf­ferance, Consents and Custom, the King and the Lords Spiritual and [Page 22]Temporal and Commons represent­ing the whole State of this Realm in the most High Court of Parlia­ment, have full Power and Au­thority, not only to dispence, but also to authorize some Elect per­son or persons to dispence with those and all other Human Laws of this Realm, and with every one of them, as the Quality of the persons and Matter shall require. And also the said Laws, and every of them to abrogate, adnul, ampli­fie, or diminish, as it shall be seen to the King, and the Nobles and Commons of this Realm, present in Parliament, meet and convenient for the Wealth of this Realm.

The Power and Jurisdiction of the Parliament for making of Laws in proceeding by Bill,4 Inst. 36. is so trans­cendent, and absolute, as it cannot be confined, either for Causes or Persons, within any Bounds. Si Antiquitatem spectes, est vetutissi­ma: si Dignitatem, est honoratis­sima: si Jurisdictionem, est capacis­sima.

The whole Parliament (which should best know its own Power) affirms,Speed's Hist. f. 914. Rot. Parl. 1 R. 3. In Cotton's A­bridgment, f. 713, 714. That the Court of Parlia­ment is of such Authority, and the People of this Land of such a Na­ture and Disposition, as Experi­ence teacheth, that the Manifesta­tion and Declaration of any Truth or Right made by the Three E­states of this Realm assembled in Parliament, and by Authority of the same, maketh, before all other things most Faith, and certain quie­ting of mens Minds, and removeth the Occasion of Doubts.

Parliamentum omnia potest, says the 4 Leon. 174, 176.

The Parliament is of an abso­lute and unlimited Power in things Temporal, within this Nation.Sir Rob. Atkyns's Argument, &c. 50.

The Parliament hath the high­est and most sacred Authority of any Court:Ibid. it hath an absolute Power, it is the highest Court in the Realm, as is acknowledged by our most learned and gravest Wri­ters, and Historians.

A man gives Land to one,Crompton 20. b. and to his Heirs Males; in that Case his Heirs Females also inherit; and this was adjudged in Parliament.

One of the fundamental and principal Ends of Parliaments was,Petyt's Preface to Ancient Rights, &c. p. 41. for the Redress of Grievances, and easing the Oppressions of the Peo­ple. And the Mirror of Justices says, c. 1. p. 9. That Parliaments were instituted to hear and deter­mine the Complaints of the wrong­ful Acts of the King, the Queen, and their Children: and especially of those persons against whom the Subjects otherwise could not have common Justice.

The greater the Persons are,Sir Rob. Atkyns Ar­gument, p. 45. if they are in the Rank of Subjects, they must be subject to the King's Laws, and they are the more pro­per for the Undertaking, and En­counter of this High Court. It will not be impar congressus.

King John had resign'd up the Crown of England to the Pope,Id. 37. by the Hand of Pandulphus his Legat, [Page 25]and sordidly submitted to take the Crown at his Hand again, at a yearly Tribute. In the Reign of our Noble King Edward the Third, the Pope demanded his Rent, and all the Arrears. The Prelates, Dukes, Counts, Barons, and Com­mons resolved, That neither the King, nor any other, could put the Realm, nor the People thereof, in­to Subjection, sans l'assent de eux, without their Assent.

This intimates,Ibid. that with their joynt Consent the Crown may be disposed of. And it was the high­est Resolution in Law, in one of the highest Points in Law, concerning the King's claim of an Absolute Power, and in a Time, when the Pope was in his height.

It is the proper Work of this Supreme Court to deal with such Delinquents,Ibid. as are too high for the Court of King's Bench, or other ordinary Courts.

Daughters,4 Inst. 36. and Heirs apparent of a Man, or Woman, may by Act [Page 26]of Parliament inherit, during the Life of the Ancestor.

It may adjudge an Infant or Minor to be of full Age.Ibid.

It may Attaint a Man of Trea­son, Ibid. after his Death.

It may Naturalize a meer Ali­en,Ibid. and make him a Subject born.

It may bastard a Child,Ibid. that by Law is Legitimate, (viz. begotten by an Adulterer, the Husband be­ing within the four Seas.)

It may Legitimate one that is Illegitimate,Ibid. and born before Mar­riage, absolutely: it may Legiti­mate secundùm quid, and not sim­plicitèr.

21 Rich. 2. The Lords Appel­lants accused the Duke of Glocester of Treason; Selden's Judicature 91. and tho' they knew he was dead, they pray'd the King that he might be brought to his Answer. The King sent his Writ, &c. they desired Judgment, and had it.

So Robert Possington was im­peached at the Parliament at West­minster, Id. 95. [Page 27]and found Guilty, long Time after he was dead, and so forfeited his Estate.

John of Gaunt Duke of Lanca­ster had by Catherine Swinford, 4 Inst. 36. before Marriage, four illegitimate Children, Henry, John, Thomas, and Joan. At the Parliament holden 20 Rich. 2. the King by Act of Parliament, in Form of a Charter, doth Legitimate these three Sons, and Joan the Daughter.

Thomas Cromwel Earl of Essex was attainted by Parliament, Ibid. and forth-coming to be heard, and yet never call'd to answer in any of the Houses of Parliament: and re­solved by the Judges, That if one be Attainted by Parliament, it can never come in question after, whe­ther he were call'd, or not call'd to answer: for the Act of Attainder being pass't by Parliament did bind.

Where by Order of Law a man cannot be Attainted of High-Trea­son,Id. 39. unless the Offence be in Law [Page 28]High-Treason; he ought not to be Attainted by general Words of High-Treason by Authority of Parliament (as sometimes hath been used) but the High-Treason ought to be specially exprest; see­ing that the Court of Parliament is the highest and most honoura­ble Court of Justice, and ought to give Example to inferior Courts.

Acts against the Power of the Parliament subsequent bind not.Id. 42. It is against the Power and Jurisdi­ction of the Parliament, the Liber­ty of the Subject, and unreasona­ble.

The Stat.Id. 42. 11 Rich. 2. c. 5. That no Person should attempt to re­voke any Ordinance then made, repealed; for that such Restraint is unreasonable.

An Act 11 Rich. 2. c. 3.Ibid. That no man, against whom any Judgment or Forfeiture was given, shou'd sue for Pardon, or Grace, &c. was hol­den to be unreasonable, without Example, and against the Law and [Page 29]Custom of Parliament, and there­fore void.

The High Court of Parliament to be committed to a few (as in 21 Rich. 2. c. 16.Ibid.) is holden to be against the Dignity of a Par­liament, and that no such Com­mission ought to be granted.

Tho' it be apparent,Id. 43. what tran­scendent Power and Authority this Parliament hath, and tho' divers Parliaments have attempt­ed to bar, restrain, suspend, quali­fie, or make void subsequent Par­liaments; yet could they never effect it: for the latter Parlia­ment hath ever Power to abrogate, suspend, qualifie, explain, or make void the former in the Whole, or in any Part thereof, notwithstand­ing any Words of Restraint, Pro­hibition, or Penalty in the former. For it is a Maxim in the Law of Parliament, Quòd Leges posterio­res priores contrarias abrogant.

An Act of Parliament doth include every man's Consent,Hobart 256. [Page 30]as well to come, as present.

The Soveraign Power of this High Court of Parliament is such,Hakewel 86. That altho' the King's Majesty hath many great Priviledges and Prerogatives, yet many Things are not effectual in Law, to pass under the great Seal by the King's Charter, without Parliament.

The King by his Letters Patents may make a Denizen;Id. 87. but cannot Naturalize him to all purposes, as an Act of Parliament may do.

If a man be Attainted of Felo­ny,Id 89. or Treason, by Verdict, Out­lawry, Confession, &c. his Blood is corrupted (which is a perpetu­al and absolute Disability for him, or his Posterity, to claim any He­reditament in Fee-simple, either as Heir to him, or any Ancestor pa­ramount him) and he shall not be restored to his Blood, without Par­liament. And the King may give to any attainted Person his Life, by this Charter of Parliament.

Id 90. The King cannot alter the [Page 31]Common Law, or the general Cu­stoms of the Realm (as Gavel­kind, Borough-English, or the like) without Parliament.

If a King have a Kingdom by Discent, Ibid seeing by the Law of that Kingdom he doth inherit that King­dom, he cannot change those Laws of himself, without Consent of Par­liament.

By the Laws of this Kingdom,Ibid. the King cannot by his Proclama­tion alter the Law: but the King may make Proclamation, That he shall incur the Indignation of his Majesty, that withstands it. But the Penalty of not obeying his Proclamation may not be upon Forfeiture of his Goods, his Lands, or his Life, without Parliament. Brook 123.98. Vide 20 H. 6.9. Crompton 22. b.

Le Parliament d Engleterre ne lia Ireland, quoad Terras suas, quar ils ont Parliament la: mes il poient. eux lier quant al Choses transitory, come eskipper de Lane, ou Merchan­dize, al intent de ceo carrier al au­ter Lieu ultra Mare.

The Parliament of England cannot bind Ireland, as to their Lands, for they have a Parlia­ment there: but they may bind them, as to Things transitory, as the shipping of Wool, or Merchan­dize, to the intent to carry it to another Place beyond the Sea.

Sometimes the King of England call'd his Nobles of Ireland to come to his Parliament of Eng­land, 4 Inst. 350. &c. And by special Words the Parliament of England may bind the Subjects of Ireland.

The Lords in their House have Power of Judicature;Id 23. and the Commons in their House have Pow­er of Judicature; and both Houses together have Power of Judica­ture.

This Power is best understood by reading the Judgments and Re­cords of Parliament at large,Ibid. and the Journals of the House of Lords, and6 H. 8. c. 16. Rast. 429, 430. Vaughan 285. the Book of the Clerk of the House of Commons.

If Inconveniencies necessarily [Page 33]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 LawsHakewel 94. [Page 34]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 [Page 35] 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 [Page 37]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 [Page 39]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 [Page 40]proper Court. Et touts choses que ils font 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 Ʋpper 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 [Page 43]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 Ʋpper 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 Ʋpper 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, [Page 44]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 Ʋpper 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 [Page 45]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 Common­wealth, 87. the Lords give their Voices from the Puisne Lord seriatìm, by the Word [Con­tent] [Page 46]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 [Page 47]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 Ʋpper House, the Lord Keeper, and the rest of the Lords, are to rise from their Places, and to go down to the Bar, there to meet such as come from the Lower House, and from them to receive in that Place their Mes­sages, or Bills. Contrariwise, when any Answer is to be delivered by the Lord Keeper, &c.

In passing of Bills,Arc. Parl. 5. if the Not- Contents be most, then the Bill is dash't, i. e. the Law is annihilated, and goeth no further. If the Con­tents be the most, then the Clerk writeth underneath, Soit baile aux Commons.

3 Car. 1. 1626.Rash. Coll. 365. Resolved upon the Question, That the Priviledge of this House is, that no Lord of Parliament, the Parliament sitting, or within the usual Time of Pri­viledges of Parliament, is to be [Page 48]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 [Page 49]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 [Page 50]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 [Page 51] 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 Ʋsher 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 [Page 52]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 [Page 53]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, [Page 54]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 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 [Page 55]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 Ʋpper 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 [Page 56]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 [Page 57]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, [Page 58]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, [Page 59]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 Ʋpper 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 [Page 60]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 [Page 62]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 Com­mencement could have been shewn.

During the British, Saxon, and Norman Governments, the Freemen [Page 63](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, [Page 64]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 [Page 65]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 [Page 68]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 [Page 71]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 [Page 73]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 [Page 74]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 [Page 75](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 [Page 78]their own Assembly, they consider among themselves, if the Proceed­ings were legal, and may come a­gain, and shew it, and require a Re­hearing 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 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 [Page 79]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 [Page 81]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, [Page 83]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 [Page 84]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 [Page 85]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 Ʋpper 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 [Page 86]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. were committed, some to the Tow­er, some to the Serjeant, till they made a Submission and Recogniti­on in the House, and in the Coun­try.

In the same,Id. 106, 107. One Levet, for pe­remptorily exercising a Patent in Time of Prorogation, which was adjudg'd a Grievance by the House in the last Session, order'd to be sent for by the Serjeant at Arms.

CHAP. VII. Power of Parliament over their own Members.

THE 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; and where they find cause, Offences of this kind have been severely punish'd; by Calling the Persons to the Bar, to make Sub­mission; Committing him to the Tower, (the usual Prison to which the Commons do send Delinquents) expelling the House, disabling him to be a Member during that Par­liament, and sometime of any fu­ture Parliament.

17 Maij 1572.Ibid. Vide d'Ewes Jour. 212 Vid. Petyt's Miscell. Parl. 12, 13, &c. Upon sundry Motions made by divers Members of the House, it was ordered, That [Page 88]Arthur Hall Esq for sundry Speech­es used by him in the House, and abroad, shou'd be warned by the Serjeant to be at the House on Monday following, and at the Bar, to answer Matters charged against him: and all such Persons as had noted his Words, either in the House, or abroad, were forthwith to meet, and set down the same words in writing, and deliver the same to the Speaker. On Monday Mr. Hall was brought to the Bar by the Serjeant, was charged with several Articles, and confessed his Folly, and humbly submitted him­self to the House, and was remit­ted.

8 Febr. 1585.Id 73. Vide Sir Simon d'Ewes Journal, 244. Col. 1. Peter Wentworth Esq one of the Burgesses for Tre­gony in the County of Cornwal, was, for violence and wicked words uttered by him in the House touching the Queen, sequester'd: and being brought to the Bar by the Serjeant (to whom he was committed) received this Judg­ment [Page 89]by the Mouth of the Speaker, That he shou'd be com­mitted close Prisoner to the Tower, till the House take further Consi­deration concerning him.

4 Febr. 1580.Id 74, 75. Vide Sir Simon d'Ewes Jour. 296, 297, 298. Vid. Petyts Miscell. Parl. a. p. 20 ad p. 63. 23 Eliz. Com­plaint was made in the House a­gainst Arthur Hall Esq (spoken of before) who had caus'd a Book to be printed, where were published the Conferences of the House; and in it was contained Matter of Re­proach against some particular Members of the House, derogato­ry to the General Authority, Pow­er, and State of the House, and prejudicial to the Validity of the Proceedings of the same. The Matter was referr'd to a Commit­tee to examine; and upon Report thereof, and bringing Mr. Hall to the Bar several Times to answer, he was sentenced by the House to be committed to the Tower (as the Prison to this House) there to re­main for the space of Six months, and so much longer, as until he [Page 90]shou'd himself willingly make a Retraction of the said Book, to the satisfaction of the House, or of such Order as the House shou'd make during that Session. That the said Arthur Hall shou'd be fi­ned to the Queen Five hundred pounds for his said Offence; That he shou'd be presently severed and cut off from being a Member of this House, during this Parliament, and a Writ to issue for Election of a new Burgess for the Borough of Grantham in his stead; That the said Book shou'd be deemed and ad­judged false and Erroneous. There­upon the said Mr. Hall was brought to the Bar, to whom Mr. Speaker, in the Name of the whole House, pronounced the said Judgment, in Form aforesaid, and the Serjeant was commanded to take Charge of him, and to convey him to the Tower, and deliver him to the Lieutenant of the Tower, by War­rant of this House, to be signed by the Speaker.

It appeareth by the Journal 21 Nov. 1586.Ibid. That he was disabled for ever to serve in Parliament.

17 Dec. 1584.Id. 76. Vide Sir Simon d'Ewes Jour. 340, 341, 342. 27 Eliz. A Bill against Jesuits and Seminary Priests pass't upon the Question. Dr. Parry only gave a Negative, and after inveighed in violent Speeches against the whole Bill; affirming it to savour of Treasons, to be full of Blood, Danger, De­spair, and Terror or Dread to the English Subjects of this Realm, our Brethren, Uncles, and Kinsfolks. Upon which he was sequestred from the House into the outer Room, into the Hands of the Ser­jeant, and not to confer with any, while the House was in Debate of that Business. Afterward he was brought to the Bar, and there kneeling, he was told by the Spea­ker, If he thought fit, the House was content to hear his Reasons; but he refusing, was committed to the Serjeant's Ward. The next day he was brought to the Bar, [Page 92]and kneeling, confessed he had un­duly behaved himself, and had rashly and unadvisedly uttered those Speeches he had used, and was with all his heart very sorry for it; alledging withal, he had never been of the House till that Session, and so could not so well know the Orders of the House, as he shou'd do, and that he would not henceforth willingly offend the House, nor any one man in it, and so humbly prayed their good Favour toward him. Whereupon being again sequestred out of the House, after some Arguments and Debates it was resolved, upon this Acknowledgment of his Fault, and his humble Submission, he shou'd be received into this House again, as a Member thereof, and take his Place, as before, so that he would still afterward behave himself in good sort, as he ought to do: and thereupon being call'd again to the Bar, and there kneeling, and di­rectly reiterating his former Con­fession [Page 93]of his Fault, and humble Submission, with promise of better Demeanor, he was admitted.

18 Febr. 1584.Sir Simon d'Ewes Journal 352. Col. 2. 27 Eliz. Upon a Motion by Mr. Diggs, That the same Dr. Parry, a late unworthy Member of this House, and now Prisoner in the Tower, hath since his Submission and Reconcilement so mis-behaved himself as deserveth the said Imprisonment: Resolved by the House, That he be disabled to be any longer a Member of this House, and that a Warrant be di­rected for choosing another Burgess in his stead.

18 Jac. 1. Sir Giles Mompesson, for being a Monopolist, and for other great and insufferable Crimes by him committed, to the Abuse of his Majesty, and grievous Op­pression of the Subjects; turn'd out of the House, committed to the Tower, and after impeached before the Lords, who gave Judg­ment upon him.Petyt's Miscel. l Parl. 91, 92

  • 1. To be degraded of the Order of Knighthood.
  • [Page 94]2. To stand perpetually in the degree of a person Outlawed for Misdemeanors and Tres­passes.
  • 3. His Testimony never to be received in any Court, nor to be of any Inquisition or Jury.
  • 4. To be excepted out of all Ge­neral Pardons.
  • 5. That he should be imprisoned during his Life.
  • 6. Not to approach within twelve miles of the Courts of the King, or Prince, not at the King's High Court usually held at Westminster.
  • 7. That the King should have the profits of his Land for Life, and all his Goods and Chattels, and should be fined at 10000 l.
  • 8. He was also disabled to hold or receive any Office under the King, or for the Common­wealth.
  • 9. And lastly, Ever to be held an infamous Person.

19 Jac. 1. Sir John Bennet, Id. 92. for receiving Bribes, &c. Ordered by the Commons House to be safely kept by the Sheriffs of London; to be put out, and no longer con­tinue a Member of the House; and a Warrant for a Writ for a new choice.

In the same Parliament, Id. 93. Sir Ro­bert Floyd, for being a Projector of a Patent for a Monopoly; re­solved unâ voce, That he was a Person unworthy to continue a Member of this House, and adjudg­ed presently to be put out.

3 Car. 1.Id. 94, 95. Mr. John Barbour Recorder of Wells, for subscribing a Warrant for the Quartering of Soldiers; suspended the House, and sequestred, till the Pleasure of the House be known.

13 Febr. 1606.Id. 77, 78, 79. Upon a Report made in the House of the Remem­brances formerly set down of the Particulars of a Conference; the Speaker offering to read the Paper, and being interrupted by some Mo­tions, [Page 96]and Disputes, Whether they shou'd be read one by one, and so de­bated, or all at once: in that Diffe­rence, one of the Knights for Buck­inghamshire, with a loud Voice (not standing up bare-headed, as the Or­der is) pressed to have them read. The House observing his earnestness, and manner of Sitting and Cal­ling, for Order's sake, urged him to stand up, and speak; He stood up, and pretending. to offer some Reasons, fell into an Invective a­gainst the Scots, much distasting the House; yet out of a common Care to expedite the weighty Busi­ness then in hand, his Speech was neglected, without Tax or Censure. But on Monday following it was remembred, and his words of Of­fence recited in particular: the Gentleman being absent, was sent for by the Serjeant. The Serjeant having brought the Offender, it was moved he might be heard at the Bar, which was assented to, and af­ter he had spoken, he was com­manded [Page 97]to retire; and not long after was call'd in again to the Bar, where kneeling, Mr. Speaker ac­quainted him, Since the Offence was so apparently heinous, the House did not hold it fit that any Particulars shou'd be named, or to give any Reason of their Judg­ment; but the Order was, That he shou'd be carry'd to the Prison of the Tower, and there remain, du­ring the Pleasure of the House; and that he should be dismiss't from his Place of Knight of the Shire for Bucks, and a new Writ to issue for a new Choice.

15 Febr. 18 Jac. 1.Id. 79. A Bill being read the second Time, for the better Observation of the Sabbath, one of the Members made an In­vective against it, and something which seem'd to reflect on a Mem­ber of the House, who presented it, as savouring of a Puritan, and fa­ctious Spirit; Exceptions were taken at the Words. After he had explained himself, he was ordered [Page 98]to withdraw out of the House; and Debate being had, he was call'd to the Bar, and upon his Knees he received the Judgment of the House pronounced by the Speaker, That he shou'd be discharged from the Service of the House; with an Intimation that his Judgment was very merciful, for that the House might, for so exorbitant an Offence, have imprison'd, and further pu­nish'd him.

3 Apr. 1604.Id. 80. In a Debate upon a Bill, a Member of the House ut­ter'd some Speeches highly distast­ing the House; but no Notice was taken of it till the Bill was com­mitted: and then the Words be­ing repeated, he was call'd to the Bar, where he made his Excuse, and was pardon'd.

26 Apr. 1641.Ibid. Great Offence was taken by the House at Words spoken by Mr. J. H. He was first heard to explain himself, and then commanded to withdraw; and was call'd to the Bar, and suspended the [Page 99]House, during that Session of Par­liament.

27 Maij 1641.Ibid. A Paper was brought in, containing words spo­ken by Mr. Taylor a Member of the House, concerning the Passing the Bill of Attainder of the Earl of Strafford: who being heard to explain himself, and then com­manded to withdraw; after some Debate in the House, it was resol­ved, That he shou'd be expell'd the House, be made uncapable of ever being a Member of this House, and shou'd forthwith be committed Pri­soner to the Tower, there to re­main, during the Pleasure of the House, and to make an acknowledg­ment of his Offence, both at the Bar and at Windsor publickly. And he was call'd to the Bar, and there kneeling, Mr. Speaker pronounced the Sentence accordingly.

13 Maij, 12 Jac. 1.Id. 82. Complaint was made, that some Indignities was offer'd to Sir R. Owen, when he was in the Chair at the Commit­tee [Page 98] [...] [Page 99] [...] [Page 100](about the Bill for the due Ob­servation of the Sabbath Day) by Sir W. H. who told him, He was Partial; and by Sir R. K. who took him by the hand, and told him, He would pull him out of the Chair, that he should put no more Tricks upon the House. Sir W. H. being present, made an Acknow­ledgment of his Error, which up­on the Question was taken for a good Satisfaction. Sir R. K. was ordered by the House to Acknow­ledge his Error at the Bar.

19 Jac. 1.Ibid. Some Speeches pas­sing in the House privately be­tween two of the Members, and some Offence taken, which seems was not intended to be given: one of them in going down the Par­liament-stairs, struck the other; who thereupon catch'd at a Sword in his Mans hand to strike with it. Upon Complaint made of it to the House, they were both order'd to attend the House: being come, he who gave the Blow was call'd in, [Page 101]and standing (not at the Bar, but) by the Bar, was examin'd by Mr. Speaker, confessed the giving the Blow, insisted on the Pro­vocation, and withdrew: The other was also call'd in to relate the Truth. After he had made the Relation, and was likewise withdrawn, and Testimony given by a Member of the House, who heard the words; the House pro­ceeded to Sentence against Mr. C. who struck the blow. He being brought to the Bar, there on his knees he received Judgment, which was pronounced by the Speaker, That he should be committed to the Tower, during the Pleasure of the House.

1626.Nalson's Introducti­on 61. Mr. Moor sent to the Tower for speaking out of Season.

Novemb. 1641. Ordered, That Mr. Fitz-Williams Conisby shall be expell'd this House, 2 Nalson 513. he being a Mono­polist, and that the Speaker issue out a Warrant to the Clerk of the Crown for a Writ for a new Election for a [Page 102]Member to serve for the County of Hertford in his Place.

Mr. Hugh 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 [Page 103]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 Ʋse; 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 [Page 105]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, [Page 106]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 Common­wealth, 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, [Page 107]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. [Page 108]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 Common­wealth 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 Common­wealth 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 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 Under­sheriff 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 [Page 111]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 [Page 112]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 Common­wealth 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 [Page 113]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 [Page 114]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) [Page 115]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 [Page 119]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'Ʋpper 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 [Page 121]reteign quia il fuit primes atten­dant en l'Ʋpper Meson, devant que il fuit eslie un Member de lower Meson.

Egerton the Queen's Solicitor was commanded to attend in the Ʋpper House, and did attend three days, & afterward was chosen Bur­gess for Reading. And he was retain­ed, because he was first attendant in the Ʋpper 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 Ʋp­per. 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 [Page 122]by Writ to serve in the Ʋpper.

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 Ʋpper 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, [Page 123]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. & 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) [Page 124] 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, [Page 126]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 [Page 127]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 [Page 128]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 Common­wealth 75. and is the Mouth of the Parlia­ment.

It is true,4 Inst. 8. Smyth's Common­wealth 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 14 Eliz. So John Puckering 27 Eliz. So George Snagg 31 Eliz. So Edw. Coke 35 Eliz. So Yelverton 39 Eliz. So John Crook 43 Eliz. So Sir Thomas Crew 19 Jac. 1. So Sir Heneage Finch 1 Car. 1 cum multis aliis.

The Speaker ought to be reli­gious,Towns. Coll. 174. honest, grave, wise, faithful, and secret. These Vertues must concur in one Person able to sup­ply that Place.

The long Use hath made it so material,Elsyng. 154 that without the King's Commandment or Leave, they can­not choose their Speaker.

Surely the Election of the Speaker was anciently free to the Commons, Id. 155. to choose whom they would of their own House: which appears in this, that the King ne­ver rejected any whom they made Choice of.

Vide contra Sir Simon d'Ewes Journ. 42. Col. 1. where he saith, That 28 Hen. 6. Sir John Popham was discharged by the King: and there­upon the Commons chose and pre­sented William Tresham Esq who made no Excuse.

The Cause of Summons being declared by the King or Chancellor; Elsyng. 151 Cook 12, 115. Smyth's Common­wealth 79. the Lord Chancellor confers first with his Majesty, and then in his [Page 133]Name commands the Commons to assemble in their House, and to choose one of their Members to be their Speaker, and to present him to his Majesty on a Day cer­tain.

Upon which the Commons shall presently assemble themselves in the Lower House, Co. 12.115. and he is to be a Member of their Parliament.

The Commons being thereupon assembled in their House;Elsyng. 152 Vid. Towns. Coll. 174. one of the Commons puts the rest in mind of their Charge given in the Ʋp­per House, touching the choosing of a Speaker; and then doth of himself commend one unto them, and desires their Opinions to be signified by their Affirmative, or Negative Voices: and if any Man stand up, and speak against him so named, alledging some Reason, he ought to name another.

Some Person (when the gene­rality of Members are come,Scobel 3. Vid. Towns. 174. Vide Sir S. d'Ewes Jour. pas­sim. and sit) doth put the House in mind, That for their better proceeding in [Page 134]the weighty Affairs they are come about, their first Work is to ap­point a Speaker; and re-commends to the House some Person of Fit­ness and Ability for that Service and Dignity, which usually hath been one of the long Robe.

If more than one Person be na­med for Speaker, Scobel 3. and it be doubt­ful, who is more generally chosen; sometime one of the Members standing in his Place, doth by Di­rection or Leave of the House, put a Question for determining the same, or the Clerk at the Board.

So it was in the first Session 1 Jac. 1.Scobel 4. when Sir Edward Philips the King's Serjeant at Law was first named by Mr. Secretary Herbert as fit for that Place: and the names of others were mention'd, but the more general Voice run upon Sir Edward Philips; and a Question being put,Co. 12.115. Vid. Towns. 175. Vid. Sir S. d'Ewes, Jour. passim he was by general Ac­clamation chosen Speaker.

When the Speaker is chosen, he in his Place, where he first shall [Page 135]sit down, shall disable himself, and shall pray, That they would pro­ceed to a new Election.

When it appeareth who is cho­sen,Elsyng. 153 Vid. Towns. 175. Vide Sir S. d'Ewes Jour. passim after a good Pawse he stand­eth up, and sheweth what Abili­ties are required in a Speaker; and that there are divers among them well furnish'd with such Qualities, &c. disableth himself, and prayeth a new Choice to be made; which is commonly answered with a full Consent of Voices upon his Name.

If the House generally give a Testimony of their Approbation,Elsyng. 153 4 Inst 8. Vid. Towns. 175. Vide Sir S. d'Ewes Jour. passim two of the Members (which for the most Part were of the Coun­cil, or chief Officers of the Court) going to the Gentleman named, and agreed to be Speaker, take him from his Place, and lead him unto the Chair (Elsyng says, take him by the Arms, and lead him to the Chair) where being set, they re­turn to their Places.

After a while he riseth, and un­cover'd,Elsyng. 153 [Page 136]with humble Thanks for their good Opinion of him, pro­miseth his willing Endeavors to do them Service.

After he is put into the Chair, Co. 12.115. 4 Inst. 8. then he shall pray them, That with their Favors, he may disable him­self to the King, that so their Ex­pectations may not be deceived.

Then some (and commonly he that first spake) puts them in mind of the Day to present him,Vid. Towns. 175. Sir Simon d'Ewes Jour passim &c. Elsyng. 153 So it was done by Sir William Knowls the Controller in the 43 Eliz.

Two or three Days after the Commons shall present the Speaker in the Ʋpper House to the King, Co. 12.115. Rush. Coll. 480. Smyth's Common­wealth 80. where he shall disable himself a­gain to the King, and in most hum­ble manner shall intreat the King to command them to choose a more sufficient man.

At the Day appointed,Flsyng. 156 Vid. Towns. 175. his Ma­jesty sitting on his Royal Throne, and the Lords all in their Robes, the Commons are called in, who be­ing [Page 137]come, the Speaker is brought between two of them, with low Obeysance to the Bar, and so pre­sented at the Bar to his Majesty.

The Speaker having made his Excuse, the Lord Chancellor con­sers with the King, and then tel­leth him, That his Majesty doth approve the Commons Choice, and will not allow of his Excuse. Then the Speaker proceeds to his Speech. But anciently he made first a Pro­testation; as you may read in El­syng. 159, 160.

After he is allowed by the King, Co. 12.115. Vide Rush. Coll. 117. Vi. Smyths Common­wealth 80. then he shall make an Oration, and in the Conclusion, shall pray the four usual Petitions.

The Speaker's Speech is what it pleaseth himself (having no Dire­ction at all from the Commons touching the same) making Peti­tion to the King on behalf of the Commons, Elsyng. 164 some in general words for all their ancient Priviledges, and some in particular.

The Protestation of the Speaker [Page 138]consists of three Parts.4 Inst. 8. Vid. Towns. Coll. 4. & 54 Rush. Coll. 484. Vide El­syng. 164. First, That the Commons in this Parliament may have free Speech, as by Right and of Custom they have used, and all their ancient and just Privi­ledges and Liberties allow'd to them. Secondly, That in any Thing he shall deliver in the Name of the Commons (if he shall com­mit any Error) no Fault may be arrected to the Commons, and that he may resort again to the Commons for declaration of their true In­tent, and that his Error may be pardoned. Thirdly, That as often as necessity for his Majesties Service and the Good of the Commonwealth shall require, he may by Direction of the House of Commons, have Ac­cess to his Royal Person.

Some add a Fourth,Modus te­nend. Parl. 35. That they may have Power to Correct any of their own Members that are Offen­ders.

And some make a Fifth,Id. 62. That the Members, their Servants, Chattels, and Goods necessary, may be free from all Arrests.

Tho' the Speaker does (upon his being approv'd of by the King) make it his humble Petition to have Liberty of Speech allow'd the Commons; Sir R. At­kin's Argu­ment, &c. 33. from whence Dr. Heylin and Sir Robert Filmer, and others infer, That the Commons enjoy that Liberty by the King's Grace and Favour: yet they are clearly answered by the words that accompany that humble Peti­tion, he prays That they may be allowed that Freedom, as of Right and Custom they have used, and all their ancient, and just Priviledges, and Liberties. So that this from the Speaker is a Petition of Right.

The Speaker having ended his Oration,Elsyng. 165 the Lord Chancellor con­fers again with the King, and makes Answer thereunto in his Majesties Name, granting his Requests, &c.

That humble and modest way of the Peoples addressing to their Soveraign,Sir R. At­kyns Argu­ment 33. either for the making [Page 140]Laws, which has been very anci­ent, or for granting Priviledges (by the Speaker of the Commons) shews great Reverence, and be­comes the Majesty of the Prince so to be addressed to: but let it not be made an Argument, that ei­ther the Laws thereupon made, or the Priviledges so allow'd, are pre­carious, and meerly of Favour, and may be refused them.

The Oration being answered by the Lord Chancellor, Co. 12.115. 4 Inst. 10. and his Pe­titions allow'd, the Speaker and the Commons shall depart to the House of Commons, where the Speaker in the Chair shall request the Commons, That inasmuch as they have chosen him for their Mouth, they would assist him, and favourably accept his Proceed­ings, which do proceed out of an un­feigned and sincere Heart to do them service. Scobel 5. Vide Sir S. d'Ewes Jour. 43, 44.

The first Business in the House is ordinarily to read a Bill that was not pass't in the last Parlia­ment [Page 141]preceeding, or some new Bill, as in that of 10 Jac. 1. But on that Day, before that was done, there was a Motion made for Pri­viledge of Sir Thomas Shirley, who was chosen a Member to serve in that Parliament, but de­tained by an Arrest. Upon which a Habeas Corpus was awarded; and the Serjeant that Arrested him, and his Yeoman sent for, and a Committee for Elections and Priviledges chosen.

CHAP. XIII. Business of the Speaker.

THE Mace is not carried be­fore the Speaker, Elsyng. 153. until his Return, being presented to the King, and allow'd of.Modus te­nend. Part. 36. Smith's Common­wealth, 84.

The Speaker sits in a Chair pla­ced somewhat high, to be seen and [Page 142]heard the better of all: the Clerks of the House sit before him in a lower Seat, who read Bills, &c.

The Speaker's Office is,Modus te­nend. Parl. 37. Smyth's Common­wealth 86. when a Bill is read, as briefly as he may, to declare the Effects thereof to the House.

That Day that the Speaker, be­ing approved by the King, Haktwel 138, 139. Sir Simon d'Ewes Jour. 43, 44. cometh down into the Commons House to take his Place, the Custom is, to read for that time only one Bill left unpast the last Sessions, and no more, to give him Seisin, as it were, of his Place.

1 Jac. 1.Scobel 19. Sir Edward Philips was chosen Speaker, and the same Day (before he was presented to the King) he signed a Warrant as Speaker, by Command of the House, for Election of another Per­son in the Place of Sir Francis Ba­con, being chosen in two Places.

A general Order hath usually been made in the Beginning of the Session, Id. 20. to authorize the Spea­ker to give Warrants for new Writs [Page 143]in Case of Death of any Member, or of double Returns, where the Party makes his Choice openly in the House, during that Session.

Where such general Order is not made,Ibid. Writs have issued by Warrant of the Speaker, by Vertue of Special Order, upon Motion in the House.

Oftentimes on the first Day of the Meeting of the House,Scobel 18. as soon as the Speaker hath been approv'd, and sometime before, such Persons as have been doubly return'd, have made their Choice.

43 Eliz. Mr. Johnson said,Towns. 191 192. The Speaker may, ex Officio, send a Warrant to the Clerk of the Crown, who is to certifie the Lord Keeper, and so make a new Warrant.

The Speaker said,Ibid. Sir Simon d'Ewes Jour. 627. Col. 2. That I may inform you of the Order of the House, the Warrant must go from the Speaker to the Clerk of the Crown, who is to inform the Lord Keeper, and then to make a new Writ.

This Proposition I hold,Ibid. Vide Sir S. d'Ewes Journ. 627. Col. 2. That our Speaker is to be commanded by none, neither to attend any, but the Queen, per Sir Edward Hobby.

The Warrant is to be directed to the Clerk of the Crown in Chan­cery, Socbel 20. Vid. Towns. Coll. 216, 217. Vide Sir S. d'Ewes Jour. passim Scobel 65. Petyt's Miscell. Parl. 140. by Order of Parliament 13 Novemb. 1601.

May 1604. Resolved, That no Speaker from henceforth shall deli­ver a Bill, of which the House is possessed, to any whosoever, without leave and allowance of the House, but a Copy only. It is no Possessi­on of a Bill, except the same be delivered to the Clerk to be read, or that the Speaker read the Title of it in the Chair.

5 Car. 11. 1628.Rush. Coll. 660. The Speaker being moved to put the Question then proposed by the House, he refused to do it, and said, That he was otherwise Commanded from the King. 2 Martij, The Speaker was urged to put the Question; who said, I have a Command from [Page 145]the King to adjourn till the Tenth of March, and to put no Question; and endeavouring to go out of the Chair, was notwithstanding held by some Members (the House foreseeing a Dissolution) till a Protestation was publish'd.

When the Queen made an An­swer to the Speaker's Speech, he,Towns. Coll. 263. Vide Sir S. d'Ewes Journ. 659. Col. 1, 2. with the whole House fell upon their Knees, and so continued, till she bid them stand up.

35 Eliz. Mr. Speaker was sent for to the Court,Towns. Coll. 61. where the Queens Majesty her self gave him Com­mandment what to deliver to the House.

The Speaker commanded upon his Allegiance not to read any Bills touching Matters of State or Reformation in Causes Ecclesi­astical.Id. 63.

16 Car. 1. 1640. Apr. 16.Rush. Coll. 1127. The Speaker received Command from the King, That his Majesties Speech shou'd be Entred in the Journal of the Commons House of Parliament: [Page 146]whereupon the House passed a de­clarative Vote, That they did not expect that this shou'd be perform­ed by other Speakers, but upon the like special Command, or by the Or­der of the House.

Eodem, Id. 1137. Resolved, That it was a Breach of Priviledge of the House for the Speaker not to obey the Com­mands of the House; and that it appeared the Speaker did Adjourn the House by the Command of the King, without the Consent of the House, which is also a Breach of the Priviledge; it was therefore ordered that this should be presen­ted to his Majesty.

1 Jac. 1. 1603. Ordered,Scobel 65. Petyt's Miscel. Parl. 140. That it shou'd be precisely registred as the Judgment of the House, that no Speaker from henceforth shou'd de­liver a Bill, whereof the House stands possessed, to any whomsoever, without allowance and leave: but that he had Power, and might either shew it, or deliver a Copy (if it seems meet to him.)

But yet it was admitted,Id. 142. that a Copy may be delivered, or it may be shewed to his Majesty.

If upon Division of the House it appear that the Members are equal;Hakewel 145. the Speaker hath always the Casting Voice upon all Que­stions.

44 Eliz. Upon the Question,Towns. 321, 322. Vide Sir S. d'Ewes Jour. 683. Col. 2. Whether Mr. Speaker had a Voice. It was said by Sir Walter Raleigh (and confirmed by the Speaker himself) That the Speaker is fore­closed of his Voice, by taking of that Place, which it had pleased them to impose upon him, and that he was to be indifferent to both Parties. He was seconded by Mr. Secretary Cecil.

The Speaker hath no Voice in the House,Arc. Parl. 18. Smyth's Common­wealth 86. nor will they suffer him to speak in any Bill, to move, or disswade it.

CHAP. XIV. Order to be observed in the House.

THE Litany is read the first Thing,Towns. 54. after the Speaker is set in the Chair. So agreed upon the Motion of Mr. Speaker 13 E­liz. 1571.

When the Speaker is set in his Chair, Scobel 6. every Member is to sit in his Place, with his Head cover­ed.

No Member in coming into the House,Ibid. or in removing from his Place, is to pass between the Spea­ker, and any Member then speak­ing; nor may cross, or go over­thwart the House, or pass from one side to the other, while the House is sitting.

23 Eliz. 1580.Sir Simon d'Ewes Jour. 282. Col. 2. Upon a Moti­on made by Sir James Croft Con­troller of her Majesties Houshold, and allowed of by the whole House, That Mr. Speaker and the Residue of the House of the better sort of Calling, do alway at the ri­sing of the House depart, and come forth in comly and civil sort, for the Reverence of the House, in turning about with a low Courtesie, as they make at their coming into the House, and not unseemly to thrust, and throng out.

No Member is to come into the House with his Head covered,Scobel 6. nor to remove from one Place to ano­ther with his Hat on, nor is to put on his Hat in coming in, or re­moving, until he be set down in his Place.

39 Eliz. None to enter the House with his Spurs on;Towns. 101, 181. Vid Sir S. d'Ewes Jour. 550. Col. 1. 623. Col. 1. nor un­til he pay the Serjeant's Fees.

While the House is sitting, no man ought to speak or whis­per to another, to the end the [Page 150]House may not be interrupted,Scobel 6. Vid. Sir S. d'Ewes Journ 487. Col. 1. when any are speaking; but eve­ry one is to attend unto what is spoken; in which Case Penalties have been imposed.

When any Member intends to speak,Ibid. he is to stand up in his Place uncover'd, and address him­self to the Speaker; who usually calls such Person by his Name, that the House may take notice who it is that speaks.

Mr. Downold going about to speak about a Bill,Towns. Coll. 224. the Speaker interrupted him, and arose, with­out further hearing him, which he took in great Disgrace, and told him, He would complain of him the next Sitting.

If any man in this House speak wisely,Towns. Coll. 252. we do him great wrong to interrupt him: if foolishly, let us hear him out, we shall have the more Cause to tax him, per Secre­tary Cecil.

If more than one stand up at once,Scobel 7. Vid. Sir S. d'Ewes Jour. 434. Col. 1, 2. the Speaker is to determine [Page 151]who was first up; and he is to speak, and the other sit down, un­less he, who was first up, sit down again, and give way to the other; or that some other Member stand up, and acquaint the House, that another was up before him, whom the Speaker calls, and the House ad­judge it so.

While one is speaking,Ibid. Vid. Towns. Coll. 205. none else is to stand up, or interrupt him, until he have done speaking, and be set down, and then the other may rise up and speak, observing the Rules.

21 Junij 1604.Ibid. It was agreed for an Order, That when Mr. Spea­ker desires to speak, he ought to be heard without interruption, if the House be silent, and not in Dispute.

When the Speaker stands up,Ibid. the Member standing up, ought to sit down.

27 April 1604.Scobel 8. Rule, That if any Question be up­on a Bill, the Speaker is to explain; but not to sway the [Page 152]House with Arguments or Di­spute.

4 Junij 1604.Scobel 8. Vide Sir S. d'Ewes Jour. 335. Col 1. 640. Col. 2. Agreed for an Order, That whosoever hisseth, or disturbeth any man in his Speech, by coughing, spitting, &c. shall an­swer it at the Bar.

7 Maij 1607.Ibid. Ordered upon the Question, That in going forth, no man shall stir, until Mr. Speaker do arise and go before, and then all the rest to follow after him.

He,Co. 12.116. Smith's Common­wealth 84. who first stands up to speak, he shall first speak, without any Disserence of Persons.

If in Debate words be let fall, that give Offence, Exceptions shou'd be taken the same day, and before such Member go out of the House: or he, who is offended, may move, that such Person may not go out of the House till he hath given Satisfaction in what was by him spoken. And in such Case,Scobel 81. after the present Debate is over, the words must be repeated by the Person excep­ting: [Page 153]and in case he desire, or the House command him, he is to ex­plain himself, standing in his Place; which if he refuse to do, or the House be not satisfy'd with such Explanation, then he is to with­draw.

43 Eliz. It was said by Secretary Cecil, Towns. Coll. 199. Vide Sir Simon d'Ewes Jour. 630. Col. 2. If any that sit next the Door, be desirous to sit next the Chair, to give his Opini­on; I will not only give him my Place, but thank him to take my Charge: We that sit here, take your Favours out of Courtesie, not out of Duty.

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.

Febr. 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 [Page 155]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 [Page 157]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 Common­wealth, 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 [Page 159]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 [Page 160]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, [Page 161]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 Member ought to give his Vote one way or other: and the Speaker is to declare his Opinion, whether the Yea's or the No's have it; which is to stand as the Judgment of the House. But if any Mem­ber, before any new Motion made, shall stand up and declare, that he doth believe that the Yea's, or the No's (as the Case shall be) have it, contrary to the Speaker's Opinion, then the Speaker is to give Dire­ction for the House to divide, de­claring whether the Yea's or the No's are to go forth.

Upon the dividing of the House,Id. 25. those are to go forth, who are for varying from, or against the con­stant Orders of the House (as, that a Question shall not be put, or not be now put; it being the Course of the House, that after a Debate the same shou'd be deter­min'd by a Question, or the like) [Page 163]or against any positive Order made by the House; or for the passing any new thing, as reading a Peti­tion, or Bill, and committing, in­grossing, or passing such Bills, or the like.

Those that are for the new Bill (if there be a Question of Voices) shall go out of the House;Id. 52. and those who are against the Bill,Co 12.116 Sir Simon d'Ewes Jour. 505. Col. 1 Vid. contra Scobel 43. and for the Common Law, or any for­mer Law, shall sit still in the House, for they are in Possession of the old Law. That in 1604. those for the Bill sate, and those against it went out. So 7 Aug. 1641.

10 Dec. 1640.Memorials in Hakewel 25. Vide Sir S. d'Ewes Journ. 505. It was declared for a constant Rule, That those that give their Votes for Preservation of the Orders of the House shall stay in; and those who give their Votes otherwise, to the introducing any new Matter, or for any Alteration, shall go forth.

24 Mart. 21 Jac. 25.Memorials, ut supra. The House being divided upon a Question a­bout Election of Members; it was [Page 164]over-ruled by the House, that the Noe's shou'd go forth.

This is also the Course upon any Question to agree with a Report in Favour of the Opinion of a Committee. Ibid.

Upon dividing the House,Id. 26. the Speaker is to nominate two of those that are in the Affirmative, and two of the Negatives, to count the House; which four (each of them having a Staff in his Hand) are to count the number of the Persons who remain sitting in the House: and then to stand within the Door, two on the one side, and two on the other, and to count the Number of them who went forth, as they come in.

While the House is thus divi­ded,Ibid. or dividing, no Member may speak, nor (unless it be to go forth upon the Division) remove out of his Place.

When the House is thus told, those two of the Tellers,Id. 27. who are of the number of those who have [Page 165]the major Votes, standing on the right hand, and the two other on the left hand at the Bar (the rest being all set in their Places) are to come from thence up to the Ta­ble together (making the usual Obeysance to the House three times; once at the Bar, again in the middle of the House, and again when they are come to the Table) and that Person who stands on the right hand, is to declare to the Speaker the number of the Yea's (who sat, or went out, as the Case is) and of the No's: and then with like Reverence to depart into their Places; after which, Mr. Speaker is to report the same to the House.

If the Affirmative have the ma­jor Vote by the Judgment of the Speaker, Ibid. or (in case of Division) upon the Division; the Clerk is to enter the Vote, Resolved. If the Negatives, then he is to enter it thus—The Question being put (set­ting down the words of the Que­stion) it pass't in the Negative.

Upon the Division,Ibid. if the Mem­bers appear to be equal, then the Speaker is to declare his Vote, whether he be a Yea, or a No, which in this Case is the casting Voice: but in other Cases the Speaker gives no Vote.

1 Maij 1606.Ibid. Upon a Question, whether a man saying Yea, may af­terward sit and change his Opinion, a Precedent was remembred by the Speaker, of Mr. Morris, Attorney of the Wards, in 39 Eliz. that in like case changed his Opinion.

If upon a Debate it be much controverted,Id. 28. and much be said a­gainst the Question; any Mem­ber may move, that the Question may be first made, whether that Question shall be put, or whether it shall be now put; which usu­ally is admitted at the Instance of any Member, especially if it be seconded, and insisted on: and if that Question being put, it pass in the Affirmative; then the main Question is to be put immediately, [Page 167]and no man may speak any thing further to it, either to add, or alter. But before the Question (whether the Question shall be put) any Per­son, who hath not formerly spo­ken to the main Question, hath liberty to speak for it, or against it; because else he shall be preclu­ded from speaking at all to it.

If in a Debate there arise more Questions than one,Ibid. and it be con­troverted, which Question shou'd be first put; the Question first moved and seconded is regularly to be first put, unless it be laid a­side by general Consent If the first Question be insisted onto be put, and the major Part seem to be a­gainst it, the Question is to be, whether that Question shall be now put: if that pass in the Negative, then the other Question may be put, if desired: nevertheless any Person may speak to it again, be­fore it be put. If in the Affirma­tive, then it is to be put without any Addition or Alteration, as be­fore: [Page 168]and after the Question is put, if any Member move to have the other Question put, every one hath leave to speak to it again, as if it were a new Question.

If a Matter be received into De­bate,Id. 29. and a Question grow, whe­ther the House shall proceed in that Debate at this time, and it fall out, that the House be divi­ded; in such Case the No's are to go forth (it being contrary to the course of the House, that any Business shou'd be laid aside till it be determined by a Question) If the Question be for an Adjourn­ment of a Debate, the Yea's are to go forth upon the same Reason.

After a Question is propounded,Ibid. no man may speak more than once to the Matter; but having spoken to the Matter, when the Question comes to be put, he may speak to the manner or words of the Que­stion, keeping himself to that on­ly, and not ravelling into the me­rits of it.

If a Question upon a Debate contain more Parts than one,Ibid. and Members seem to be for one Part, and not for the other; it may be moved, that the same may be di­vided into two, or more Questi­ons: as 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 Common­wealth 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 [Page 170]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 [Page 171]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 [Page 172]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, [Page 173]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 [Page 174]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 [Page 175]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 Common Law, doth enact nothing, neither is any Pro­viso good therein.

But the Speaker is not precise­ly bound to any of these Rules,Hakewel 136. for the preferring of Bills to be read or passed; but is left to his own good Discretion (except he be specially directed by the House to the contrary) and tho' he be earnestly pressed by the House for the reading of some one Bill; yet if he have not had convenient [Page 177]time to read the same over, and to make a Breviat thereof for his own memory; the Speaker doth claim a Priviledge to defer the Reading thereof to some other time.

The Clerk being usually direct­ed by the Speaker (but sometime by the House) what Bill to read,Hakewel 137. with a loud and distinct Voice first reads the Title of the Bill, and then, after a little Pawse, the Bill it self; which done, kissing his Hand, he delivereth the same to the Speaker; who standeth up uncover'd (where­as otherwise he sitteth with his Hat on) and holding the Bill in his Hand, saith, This Bill is thus in­tituled, and then readeth the Ti­tle; which done, he openeth to the House the Substance of the Bill, which he doth, either trust­ing to his memory, or using the help, or altogether the reading of his Breviat, which is filed to the Bill.Hakewel 137. Vide Scobel 42.

Sometimes reading the Bill it [Page 178]self, especially upon the Passage of a Bill, when it hath been much alter'd by the Committees, so that thereby it differeth very much from the Breviat.

When he hath open'd the Effect of the Bill,Id. 138. he declareth to the House, That it is the first Reading of the Bill, and delivereth the same again to the Clerk.

The Bill containing the King's General Pardon hath but one Rea­ding in the Lord's House, Id. 138. Vid. Towns. Coll 29, 44, 126. Vide Sir S. d'Ewes Journ. 91. Col. 2. and one below: the Reason is, because the Subject must take it as the King will give it, without any Altera­tion; and yet many times Excep­tions are taken at the Reading thereof, for that it is not so fa­vourable as in former times.

The like of a Bill of Subsidies granted by the Clergy. Hakew. Ib.

The usual Course is to spend the Morning,Id. 139. before the House grow full, in the first Readings, and to defer the second or third Reading till the House grow full.

No Knight, Citizen, Co. 12.116. or Burgess ought to speak above once to one Bill in one day, unless sometime by way of Explication.

At the first Reading of the Bill,Hakewel 139. it is not the Course for any man to speak to it, but rather to con­sider of it, and to take time till the second Reading: unless it car­ry matter of apparent hurt to the Commonwealth, and so to be re­jected.

Nor for any Addition,Ibid. for thereby it is imply'd that the Bo­dy of the Bill is good, which till the second Reading, doth not re­gularly come to the Trial.

If any Bill originally begun in the Commons House, Id. 140. Scobel 42. upon the first Reading happen to be debated to and fro, and that upon the De­bate, the House do call for the Question; it ought to be, not Whether the Bill shall be read the second time (for so it ought to be in ordinary Course) but whether it shall be rejected.

If a Bill coming from the Lords be spoken against,Hak. Ibid. and pressed to be put to the Question, upon the first Reading; the Speaker, in fa­vour and respect thereto, shou'd not make the Question for Rejecti­on (as in the former Case) but shou'd first make the Question for the second Reading; and if that be deny'd, then for Rejection. But usually when any such Debate is, the Speaker doth forbear to make any Question at all thereupon, ex­cept he be much pressed thereto, it being better to consider of it be­fore it be put to such a hazard.

If the Question for Rejection be made,Id. 141. Scobel 42. and the greater Voice be to have it rejected, the Clerk ought to note it rejected in his Journal, and so to indorse it on the back of the Bill; and it shall be no more read: If the Voice be to have the Bill retained, it shall have his se­cond Reading in Course.Ibid.

It is against the ordinary Course that the same Bill shou'd be read [Page 181]more than once in one day, but for special Reasons it hath been suffer'd, that private Bills have been in one day read twice.

It is likewise done sometimes,Hakewel 142. when the House lacketh other Bu­sinesses wherein to imploy them­selves, especially if the Bill be of no great Importance, howsoever it is never but upon Motion and spe­cial Order.

When special Committees ap­pointed for the drawing of some one special Bill,Ibid. present the same ready drawn to the House, it hath been often seen, that the same Bill hath not only been twice read, but order'd also to be engrossed the same day.

It is not without Precedent that a Bill hath been thrice read,Ibid. and passed in the same day. But this is a President that standeth alone.

A Bill was read the fourth time,Sir Simon d'Ewes Jour. 90. Col. 1. before it pass't the House, and tho' there want not other Presidents, yet it is rare and worth the Obser­vation.

A Bill was put to the Question,Id. 335. Col. 1. upon the first Reading, and re­jected: but it is not usual for a Bill to be put to the question upon the first Reading.

27 Eliz 1584.Id 337. Col 2. 415. Col. 2. A Bill was com­mitted upon the third Reading, having been formerly committed upon the second; which is not u­sual.

A Bill may be preserr'd to be secondly read the next day after the first Reading:Hakewel. 143. but the usual Course is to forbear for two or three days, that men may have more time to consider upon it, except the Nature of the Business be such, that it requireth haste.

After the Bill is secondly read,Ibid. the Clerk, as before, in humble manner delivereth the same to the Speaker; who again readeth the Title and his Breviat, as he did upon the first Reading: which done, he declareth, That it was a second Reading of the Bill. And then he ought to pawse a while, [Page 183]expecting whether any of the House will speak to it; for before the Speaker hath so declared the state of the Bill, no man shou'd offer to speak to it; and then, and not before, is the time when to speak.

If after a pretty distance of time,Ibid. no man speak against the Bill for matter or form, he may make the Question for ingrossing thereof, if it be a Bill originally exhibited into the Commons House.

So likewise if divers speak for the Bill,Id. 144. without taking Excepti­on to the Form thereof, he may make the same Question for the ingrossing.

The like Question for the in­grossing ought to be made,Ibid. if the greater Voice be, That that Bill shall not be commmitted: for it were to no end further to delay the proceeding of the Bill, if there be no exception taken to the matter or form thereof: but upon the second Reading, and after the Speaker [Page 184]hath deliver'd the state thereof, the House doth usually call for com­mitting of the Bill; and then if any man will speak against it, either for Matter or Form, he ought to be heard.

After the first man hath spoken,Id. 144. the Speaker ought to rest a while, expecting whether any other man will speak thereto: so ought he likewise to do after every Speech ended: when he perceiveth that the Debate is at an end, he ought then to make the Question for the committing thereof, in this sort:

As many as are of Opinion that this Bill shall be committed,
Id. 145.
say Yea.

And after the Affirmative Voice given,

As many as are of the contrary Opinion, say No.

And he ought by his Ear to [Page 185]judge which of the Voices is the greatest: if that be doubtful, the House ought to be divided.

If upon Division of the House it appear that the Numbers are e­qual,Ibid. the Speaker hath the casting Voice upon all Questions.

If it appear that the Affirma­tive Voice be the greater,Ibid. then ought he to put the House in mind touching the naming of Committees, which is done thus.

Every one of the House that list may call upon the Name of any one of the House to be a Commit­tee, and the Clerk ought in his Journal to write under the Title of the Bill the Name of every one so called on, at least of such whose Names (in that Confusion) he can distinctly hear; and this he ought to do without Partiality, either to those that name, or to the Party named.

He that speaketh directly a­gainst the Body of the Bill,Id. 146. Towns. Coll. 208. may not be named a Committee: for he [Page 186]that would totally destroy, will not amend it.

When a convenient Number of Committees are named,Hak. Ibid. then ought the Speaker to put the House in mind to name Time and Place, when and where the Committees may meet; which the Clerk ought likewise to enter into his Journal-Book: and when the House is in silence, he ought with a loud voice to read, (out of his Book) the Com­mittees Names, and the Time and Place of the Commitment, that the Committees may take Notice thereof.

After a Bill,Ibid. which is sent from the Lords, is twice read, the Que­stion ought to be for the Commit­ment: if it be deny'd to be com­mitted, it ought to be read the third time, and the next Question ought to be for the Passage, and not for the Ingrossing (as it is where the bill originally begins in the lower House) for Bills, which come from the Lords come always engrossed.

The Question for the Passage shou'd in ordinary Course be then made,Hakewel 147. when the Bill is deny'd to be committed; but not till the Bill be read the third time.

In the debating of Bills in the House,Co. 12.116. no man may speak twice in one day (unless sometime by way of Explication) except the Bill be oftner read than once;Hak. 148. and then a man may speak as often as the Bill is read. Otherwise it is at Committees, or when in the House the Debate ariseth upon some Motion concerning the Or­der of the House.

After the Debate is ended,Id. 150. the Speaker ought to put the Questi­on for Ingrossing.

If the greater Number of Voi­ces be,Ibid. that the Bill ought not to be ingrossed, the Clerk ought to make an Entry in his Journal, that the same was dash'd: and so he ought likewise to note upon the back of the Bill, and the day when. If the Voice be to have it ingros­sed, [Page 188]it is the Office of the Clerk to do it.

It is always to be observed,Ibid. That when the Bill is engrossed, the Clerk ought to endorse the Title thereof upon the back of the Bill, and not within the Bill in any Case.

So ought likewise such Bills as come from the Lords to have Ti­tles endorsed upon the back of the Bill,Ibid. and not within.

After a Bill hath been commit­ted,Id. 151. and is reported, it ought not in an ordinary Course to be com­mitted, but either to be dash'd or ingrossed: and yet when the Mat­ter is of Importance, it is some­times for special Reasons suffer'd; but then usually the Re-commit­ment is to the same Committee.

About two or three days after the Bill is thus order'd to be en­grossed,Id. 152. and is accordingly en­grossed, it is offer'd by the Speaker to be read the third time, for the Passage thereof.

For the most part the Speaker putteth not any one Bill to the Passage by it self alone, but stay­eth till there be divers Bills ready engrossed for the third Reading; and when he hath a convenient Number (which may be five, or six, rather less than more) then he giveth Notice to the House, That he purposeth next day to offer up some Bills for the Passage, and de­sireth the House to give special Attendance for that purpose; and then the day following he doth accordingly put them to the third Reading. First private Bills, un­til the House be grown to some fulness; and then he offereth to be read the publick Bills, which are engrossed.

It hath at some times been or­der'd,Ibid. That for the preventing of carrying of Bills with a few Voi­ces, that no Bills shoul'd be put to the Passage until Nine of the Clock, at which time the House is com­monly full, or shortly after.

When the Bill is read the third time,Id. 153. the Clerk delivereth it to the Speaker, who reads the Title thereof, and openeth the Effect of the Bill, and telleth them, That the Bill hath now been thrice read, and that with their Favours he will put it to the Question for the passing: but pawseth a while, that Men may have Liberty to speak thereto; for upon the third Read­ing the Matter is debated afresh, and for the most part it is more spoken unto this time, than upon any of the former Readings.

When the Argument is ended,Id. 154. the Speaker (still holding the Bill in his hand) maketh a Question for the Passage, in this sort: As many as are of Opinion that this Bill shou'd pass, say Yea, &c.

If the Voice be for the Passage of the Bills,Ibid. the Clerk ought to make a Remembrance thereof in his Journal; if otherwise, then his Remembrance must be accord­ingly made.

Upon the Bill thus passed (if it be originally exhibited in the House of Commons) the Clerk ought to write within the Bill on the top toward the right hand,Brook Abr. f. Edit. 119 n. 4. Soit baille aux Seigneurs.

If the Bill passed be originally begun in the Lords House, Brook 119.4. then ought the Clerk to write under­neath the Subscription of the Lords (which always is at the foot of the Bill) A cest Bill les Com­mons sont assentus.

19 Dec. 1584. 27 Eliz. Sir Simon d'Ewes Jour. 344. Col. 2. The House of Commons taking Excep­tions about endorsing of Bills in the upper part of them, whereas it ought to be done at the neither and lower part; the Lords did ve­ry respectfully take away their said Grievance, by the alteration of the Indorsments aforesaid, ac­cording to the usual and ancient Form.

No Bill upon the third Read­ing,Hak. 156. for the Matter or Body there­of, may be recommitted: but for [Page 192]some particular Clause or Proviso, it hath been sometimes suffered; but it is to be observed as a thing unusual after the third Reading.

It hath been much doubted,Hakewel 157. whether when a Bill is in Debate for the Passage, it ought not to re­ceive the Resolution of the House the same day wherein it is first of­fer'd to the Passage: but Prece­dents are, where the Case being of some Importance, and the Debate growing long, the Argument hath been put over to the next day: in which Case he that hath already spoken to the Bill the first day, may not again speak the second, no more than he may speak twice in one day, where the Argument is not deferred to another day.

If a Bill be rejected,Id 158. the same Bill may not be offer'd to the House again the same Session: but if it be alter'd in any Point mate­rial, both in the body, and in the title, it may be received the se­cond time.

In the time of the Reading of a Bill,Ibid. the House shou'd not be in­terrupted with any other Business; and yet in 1 El. the House adjourn'd it self till the next day after the Bill for Sealing Clothes was half read, only to be present at the Con­ference about Religion in Westmin­ster-Abby.

Sometimes the House concei­ving much Offence against some Bills,Ibid. doth not only order them to be rejected, but to be torn in the House.

When a Bill is thrice read,Id. 159. and pass't in the House, there ought to be no further Alteration thereof in any Point.

When the Speaker hath in his hands a convenient number of Bills ready passed, as five or six,Id. 175. or thereabouts, he then putteth the House in mind of sending them up to the Lords, and desireth the House to appoint Messengers, who accordingly do appoint some one principal Member of the House [Page 194]for that purpose, to whom the Bills are delivered in such order, as he ought to present them to the Lords; which is done by directi­on of the Speaker, except the House be pleas'd to give special direction therein.

The Order which hath usually been observed in ranking of them,Id. 176. is; First, to place them that came originally from the Lords. Se­condly, those that being sent up to the Lords from the Commons House, were sent back to be a­mended. Thirdly, publick Bills originally coming from the Com­mons House; and they to be mar­shall'd according to their Degrees in Consequence. Lastly are to be placed private Bills, in such Order, as the Speaker pleaseth.

Many times the House (with a purpose especially to grace some one Bill) sendeth it alone, with a special Re-commendation thereof:Ibid. the Messenger for this purpose is usually attended by thirty or forty [Page 195]of the House, as they please, and are affected to the Business.

The principal Messenger,Id. 177. who delivers the Bills to the Lords, co­ming in the first Rank of his Com­pany to the Bar of the Lords House, with three Congies, telleth the Lords, That the Knights, Ci­tizens, and Burgesses of the Com­mons House have sent unto their Lordships certain Bills; and then reading the Title of every Bill, as it lyeth in order, so delivereth the same in an humble manner to the Lord Chancellor, who of purpose cometh to receive them.

Bills sent from the Lords to the Commons House, Ibid. if they be ordi­nary Bills, are sent down by Ser­jeants at Law, or by two Doctors of the Civil Law, being Masters of the Chancery, and Attendants in the upper House, accompanied sometimes with the Clerk of the Crown, an Attendant there.Id. 178.

Bills of greater moment are u­sually sent down by some of the [Page 196] Judges Assistants there, accompa­nied with some of the Masters of the Chancery; who being admitted Entrance, do come up close to the Table where the Clerk sits, making three Congies; and there acquaint­ing the Speaker, That the Lords have sent unto the House certain Bills, doth read the Titles, and deliver the Bills to the Speaker, and so again departeth, with three Congies: when they are out of the House, the Speaker holds the Bills in his hands, and acquaints the House, That the Lords by their Messengers have sent to the House certain Bills: and then reading the Title of every Bill, delivereth them to the Clerk to be safely kept, and to be read, when they shall be call'd for.

When Bills are thus pass't by both Houses,Id. 179. upon three several Read­ings in either House; they ought for their last Approbation, to have the Royal Assent, which is usually deferr'd till the last day of the Ses­sion.

The Royal Assent is given in this sort.Id. 181. Vid. Towns. Coll. 12, 49. Vide Sir S. d'Ewes Jour. 467. After some Solemnities ended, the Clerk of the Crown read­eth the Title of the Bills in such Order as they are in Consequence: after the Title of every Bill is read, the Clerk of the Parliament pronounceth the Royal Assent, ac­cording to certain Instructions given him from his Majesty in that behalf.

To the Subsidy Bill, Towns. Coll. 49. because it is the meer Gift of the Subject, the Quens Consent is not requi­red for the passing it, but as it is joyn'd with her thankful Accep­tance: nor to the Bill of Pardon, because it is originally her free Gift, no other Circumstance is re­quired, than that the thankful ac­ceptance thereof by the Lords and Commons be likewise expressed; it being but once read in either House, before it comes at last to be thus expedited. To all other Bills, either private or publick, the Queens express Consent, tho' in [Page 198]different words, is always requi­site.

Febr. 9. 1597. 39 Eliz. Id. 127. Her Majesty gave her Royal Assent to twenty four publick Acts, and nineteen private; and refused for­ty eight, which had pass't both Houses.

If it be a Publick Bill,Towns. 13. to which the King assenteth, the Answer is, Le Roy le veult, The King wills it.

If a private Bill, allow'd by the King, the Answer is, Soit fait come il est desire, Be it done, as is de­sired.

If a Publick Bill, which the King forbears to allow, Le Roy se avi­sera, The King will consider.

To the Subsidy Bill, Id. 12. Le Roy re­mercie ses loyaux Subjets, accept lour Benevolence, & ainsi le veult, The King thanks his loyal Sub­jects, accepts their Benevolence, and so wills it.

To the General Pardon, Towns. Coll. 13 49. Les Pre­lates, Seigneurs, & Commons en [Page 199]cest Parliament assembles au nom de toutes vous autres Subjets remer­cient tres-humblement vostre Maje­stie, Sir Simon d'Ewes Jour. 467. Col. 2. & prient à Dieu que il vous donne en sante, bon vie, & longue; The Prelates, Lords, and Commons in this Parliament assembled, in the Name of all other your Subjects, do most humbly thank your Ma­jesty, and do pray God to give you Health and a good and long Life.

A private or particular Act is always filed,Sir R. At­kin's Argu­ment, 57. Arc Parl. 45. but never enrolled.

Every Bill that passeth the Par­liament, shall have Relation to the first day of the Parliament, tho' it come in at the end of the Parlia­ment: unless a Time be specially appointed by the Statute, when it shall commence.

If a Bill be admitted to be read,Scobel 41. it is to be presented fairly written, without any razure, or interlinea­tion; together with a Breviat of the Heads of the Bill; and unless it be so tender'd, the Speaker may re­fuse it.

Until the Bill be open'd,Id. 42. no man may speak to it.

An Act was read,Towns. Coll. 187. to which no man offer'd to speak; whereupon Mr. Speaker stood up, and said, That if no man speak, it must be in­grossed.

It is the usual Rule of the Law,Towns. Coll. 134. That where the Numbers of the Affirmative and Negative are e­qual, Semper presumetur pro negante: The Negatives by Custom are to carry it.

When Votes are digested into a Bill,Scobel 45. and that comes to be read, or passed, it is lawful to Debate or Argue against all, or any part thereof; to alter, or reject it: be­cause Votes in order to a Bill are no further binding, but that the Bill is to be presented containing those Votes: and because the Bill gives occasion of a more large Debate, and being to pass into a Law; every Member hath Li­berty to offer his Reasons against it, as well as give his Vote, as of­ten [Page 201]as it comes to a Question.

When a Bill has been read the second time,Ibid. and open'd, any Member may move to have it a­mended, but must speak but once to it; and therefore must take all his Exceptions to it, and every part of it, at one time; for in the Debate of a Bill no man may speak but once the same day, except the Bill be read more than once that day, and then he may speak, as often as it is read.

23 Junij 1604. It was agreed for a Rule,Id. 58. If a Bill be continued in Speech from day to day, one may not speak twice to the Matter of the same Bill.

CHAP. XVII. Concerning Committees.

COmmittees are such,Sir Tho. Smyth's Common­wealth 75. as either the Lords in the higher House, or Burgesses in the lower House, do choose to frame the Laws upon such Bills as are agreed upon, and afterward to be ratified by the same Houses.

The proceeding in a Committee is more honourable and advanta­gious to the King, Rush. Coll. 557. and the House; for that way leads most to the Truth; and it is a more open way, and where every man may add his Reason, and make Answer up­on the hearing of other mens Rea­sons and Arguments.

For Referring a Bill to Commit­tees, Sir Simon d'Ewes Jour. 186. it is chiefly for Amendment [Page 203]or Alteration thereof, after it hath been penned, and put into the House by some one or more pri­vate men.

June 1641. In the Afternoon,2 Nalson 319. it being a considerable time before there were forty Members to make a House: Ordered, That so soon as the House sits, and that the Ser­jeant comes to any Committee then sitting, to signisie to them that the House is sitting, that the Chair-man shalt immediately come away to at­tend the Service of the House.

35 Eliz. 1592.Towns. Coll. 61. Sir Simon d'Ewes Journ 476. Col. 1. Id. 189. It was held to be against the Order of the House, That a Bill should be committed before it was read.

43 Eliz. 1601. By Order of the House agreed, When a Bill is re­turn'd from Commitment, the words must be twice read, which are a­mended, before the ingrossing thereof.

Eodem tempore. Id. 190. By Order of the House, it was agreed upon, That a Committee once made, and agreed upon, there shall not here­after [Page 204]be more Committees joyn'd unto them, for the same Bill; but for any other there may.

Eodem. Id. 198. Vid. Sir S. d'Ewes Jour. 630. Col. 1. Sir Walter Raleigh speaking at a Committee, Sir Ed­ward Hobby told him, He shou'd speak standing, that the House might hear him: to which Sir Walter Rawleigh reply'd, That be­ing a Committee, he might speak sitting or standing.

Eodem. Id. 208. Vid. Sir S. d'Ewes Journ. 634. Col. 2. It is a Rule in the House, That they, who have given their Voice against the Body of a Bill, cannot be Committees. And it was said by Mr. Wiseman, That by committing of a Bill, the House allow'd of the Body thereof, tho' they disallow'd of some Imperfecti­ous in the same: and therefore committed it to some chosen men in trust, to reform and amend any thing therein, which they found im­perfect. And it is presumed, That he who will give his No to the com­mitting of a Bill, at the Commit­ment, will be wholly against the [Page 205]Bill: and therefore the House al­lowing of this Bill to be commit­ted, are, in my Opinion, to disal­low any that will be against the Body of the Bill, for being Com­mittees. And so Resolved upon the Question.

Eodem. Towns. 208. Sir Simon d'Ewes Jour 635. Col. 1. Resolved upon the Question, If any Committee speak against a Bill at the Commitment, he may speak again at the ingros­sing thereof in the House, and have his free Voice.

11 Nov. 1601. Ordered,Memorials, 60, 61. Vid. Towns. Coll. That any Member of this House that hath been, or shall be a Committee in any Bill, may afterwards speak, or argue negatively to any such Bill, without Impeachment or Imputati­on of Breach of former Order.

Sometimes the House upon De­bate doth pass some Votes to be the Heads of a Bill,Scobel 44. or refer it to a Committee of the whole House to prepare such Heads.

If the Exceptions to a Bill be such,Id. 46. that it may not be amended [Page 206]at the Table, then the Question is for committing the Bill: But no Bill is to be committed without some Exceptions taken to it.

In the House of Commons, Towns. Coll. 138. as well as in the upper House; after any Bill is committed upon the se­cond Reading, it may be deliver'd indifferently to any of the said Committees.

No Proviso or Clauses are to be tender'd to a Bill upon a second Reading;Scobel 46. because if it be com­mitted, it is proper to offer them to the Committee, without troub­ling the House: as 16 Jun. 1604. It was moved, That sundry Provi­so's then tender'd, be offer'd to the Committee.

If the Question for Commit­ment pass in the Negative,Ibid. then the Question is to be put for the ingrossing the Bill. But if the Question for ingrossing the Bill pass in the Negative, then the Question is to be put for rejecting the Bill.

If the Question for commit­ting the Bill pass in the Affirma­tive,Id. 47. then a Committee is to be named: of which all those that took Exceptions at any Particu­lars in the Bill (but not those who spoke against the whole Bill) are to be: and any Member that plea­ses, may name one apiece, but not more, to be of that Committee.

10 Nov. 1604.Ibid. Declared for a Rule, That at the naming of a Com­mittee, if any man rise to speak, the Clerk ought not to write.

11 Nov. 1601. Resolved,Ibid. and order'd upon the Question, That such Member as declares himself a­gainst the Body or Substance of any Bill, upon any the Readings there­of, shall not hereafter be admitted to be of a Committee in any such Bill, according to former order used in Parliament.

Committees upon Bills have not usually been less then eight,Ibid. some­times twenty, seldom more in former times, which ingaged [Page 208]them to attend it, and speed it.

12 April 1604.Id. 48. Upon a Moti­on made touching the slow Pro­ceedings and Dispatch of such Bills and Businesses as were depending in the House, which grew, as was said, by the non-attendance of the Committees, Order'd, That if eight of any Committee do assem­ble, they might proceed to a Reso­lution in any Business of the House.

When a competent number are named,Ibid. the Speaker useth to put the House in mind of appointing the Time and Place of their Meet­ing: at which Time the Commit­tee are to meet, especially those who did make any Exceptions to the Bill: eight of the Persons na­med must be present to make a Committee (unless order'd other­wise in some Cases) but five may adjourn.

In some Cases the House hath order'd a Committee to withdraw into the Committee Chamber pre­sently,Ibid. and bring it back, sitting the House.

Any Member of the House may be present at any select Committee; Id. 49. but is not to give any Vote, unless he be named to be of the Commit­tee.

35 Eliz. 1592.Sir Simon d'Ewes Jour. 493 Col. 2. Two or three stood up to speak, striving who might speak first. It was made a Rule, That the Chair-man shall ask the Parties that would speak, on which side they would speak, whether with him that spake next before, or against him: and the Party that speaketh against the last Speaker, is to be heard first.

The Committee are first to read the Bill,Scobel 49. and their to consider the same by Parts.

The Preamble, if any be,Id. 50. is u­sually consider'd after the other Parts of [...] Bill: because upon Consideration of the Body of the Bill, such Alterations may therein [...] may also occasion the alteration of the Preamble, Which will be best [...] last.

The Committee may not raze,Ibid. interline, or blot the Bill it self; but must in a Paper by it self set down the Amendments in this manner (in such a Folio, and such a Line, between such a Word and such a Word, or after such a Word; insert these words, or omit these words.)

When the Amendments are all perfected,Ibid. every one being voted singly, all of them are to be read at the Committee, and put to the Question, Whether the same shall be reported to the House: when the Vote is to be put, any Mem­ber of the Committee may move to add to those Amendments, or to amend any other part of the Bill.

4 Junij 1607.Id. 52. The Bill touch­ing the Union between England and Scotland having been commit­ted, when the Amendments were reported, the whole Bill was by Order of the House first read, and then the Amendments by them­selves: [Page 211]which is a single Precedent used only in a Case of great weight.

In the Journal 4 Junij 1607.Ibid The Entry is, When a Vote is once passed at a Committee, the same may not be alter'd but by the House. Every Question upon the Voices of the Committee bindeth, and can­not be alter'd by themselves. And thus every Thing agreed to be re­ported, ought to be reported.

If the Vote of the Committee pass for reporting the Amend­ments to the House, then he of the Members of the Committee (which is commonly the Chair­man) who is best acquainted with the Bill, is to be appointed to make the Report: which being done, that Committee is dissolved, and can act no more without a new Power.

3 Martij 1606. It was order'd,Ibid. That every Committee, when they proceed to the Amendment of any Bill committed to them, shall also [Page 212]amend the Breviat annexed, and make it agree with the Bill.

Reports are usually to be recei­ved daily in the first place,Ibid. after the House is full; except there be Bills engrossed, which are to take place, and publick Bills before private.

The Reporter must first ac­quaint the House,Id. 52. Hakewel 148. That he is to make a Report from such a Com­mittee, to whom such a Bill was committed: and standing in his place, must read each of the A­mendments, with the Coherence in the Bill; and opening the Al­terations, and the Reasons of the Committee for such Amendments, until he hath gone through all: and then must (if he sit not in the Seat next the Floor) come from his place to the Bar, and so come up to the Table, and deliver both the Bill and Amendments to the Clerk, by whom he is to stand, while they are twice read, which is to be done by him (without [Page 213]reading any words that are to be omitted, but only such as are to be inserted) before any man speak to any of them: and then the Bill, with the Amendments, is to be de­liver'd to the Speaker.

After reading of the Amend­ments,Scobel 52. any Member may speak a­gainst all, or any of the Amend­ments, and desire the Coherence to be read; but he is to make all his Objections at once to all the Amendments, without speaking again.

Exceptions may be taken as well to what is omitted out of the Bill by the Committee, Id. 53. as to what is amended.

Amendments in Bills ought to be writ in Paper, Sir Simon d'Ewes, Jour. 573, 574. not in Parch­ment, and without any Indorse­ment.

Upon any Report from a Com­mittee, Scobel 53. the first Question ought to be, for agreeing with the Re­port, unless the House generally dislike it.

4 Junij 1607.Id. 39. Agreed for a Rule, That every Thing directed, and agreed to be reported, ought accordingly to be reported: but not every thing spoken or debated at the Committee.

28 Julij 1641.Ibid. Declared by the House, That no Committee ought by Votes to determine the Right or Property of the Subject, without first acquainting the House therewith.

6 Aug. 1641.Ibid. Resolved, That no Vote pass't at a Committee, and not reported, nor confirmed by the House, shall be any Rule or Dire­ction for any Court of Justice to ground any Proceedings thereon.

CHAP. XVIII. The Order and Power of Grand Committees.

A Grand Committee consists of as many Members (at least) as constitute the House,Scobel 35. less may not sit, nor act as a Committee; who have general Power to consi­der of any Matter touching the subject Matter referred, and to pre­sent their. Opinions therein to the House, the better to prepare Mat­ters of that Nature, or Bills there­in, for the House: which may bet­ter be prepared by the Liberty that every Member hath in a Grand Committee, as well as in o­ther Committees, to speak more than once to the same Business (if [Page 216]there be cause) which is not per­mitted in the House.

Bills of great Concernment,Id. 49. and chiefly Bills to impose a Tax, or raise money from the People, are committed to a Committee of the whole House; to the end there may be opportunity for fuller De­bate: for that at a Committee the Members have liberty to speak, as often as they shall see Cause, to one Question: and that such Bills being of general Concernment, shou'd be most solemnly proceed­ed in, and well weighed.

Grand Committees have their Powers and Rules in other Cir­cumstances given them in express words by the House:Id. 35. as to send for Witnesses, to hear Councel, or assign them on either part to send for Records.

When any great Business is in Agitation that requires much De­bate,Id. 36. or a Bill for a publick Tax is to be committed, the House doth use to Resolve into a Grand [Page 217]Committee of the whole House: which is done by a Question, and then the Speaker leaves the Chair; and thereupon the Committee makes choice of a Chair-man.

If more than one be generally call'd to the Chair, Scobel 36. any Member may stand up, and by Consent of the Committee, put a Question for one of those named to be the Chair-man.

19 Jac. 1.Ibid. A Dispute being in the Committee, which of two Mem­bers named shou'd go to the Chair, the Speaker was call'd to his Chair, and put the Question, That Sir Edward Coke (one of the Persons named) shou'd take the Chair; and then the Speaker left his Chair.

The Chair-man of the Grand Committee is to sit in the Clerk's Place at the Table,Ibid. and to write the Votes of the Committee.

If upon putting a Question,Id. 38. the Chair-man (who is to judge the Voices) have deliver'd his Opini­on, That the Yea's have it, and [Page 218]any Member stand up, and say, He believes the No's have it (or contrariwise) the Committee is to divide within the House; the Chair­man directing the Yea's to one side of the House, and the No's to the other, and then he is to ap­point one of each to count the Numbers, and report them: which is to be done in the same Order, as in the House, saving that the O­beysance is only twice in the Com­mittee, thrice in the House: if the Number be equal, the Chair­man hath the casting Voice; other­wise he hath none in the Commit­tee.

When the Committee hath gone through the Matter referred to them,Ibid. the Chair-man having read all the Votes, is to put the Que­stion, That the same be reported to the House: if that be Resolved, he is to leave the Chair, and the Speaker being again call'd to the Chair (or at the next Sitting of the House, if it be then adjourn'd) [Page 219]the Chair-man is to report what hath been resolved at the Commit­tee, standing in his usual Place, from whence (if it be not in the Seat next the Floor) he is to go down to the Bar, and so to bring up his Report to the Table.

If the Committee cannot perfect the Business at that Sitting,Ibid. they may not adjourn, as other Commit­tees; but a Question is to be made for reporting to the House, and that leave be ask'd, That the Com­mittee may sit at another Time on that Business.

But if, as it sometimes falls out,Ibid. the Matter hath received a full De­bate in the Committee, and it is judged fit to be Resolved in the House, the Speaker is again call'd to the Chair for that purpose.

In other Things the Rules of Proceedings are to be the same,Id 39. as are in the House.

4 Junij 1607.Ibid. Agreed for a Rule, That every Question upon the Voices of a Committee bindeth, [Page 220]and cannot be alter'd by themselves.

Every Thing directed,Ibid. and a­greed to be reported, ought to be accordingly reported: but not e­very Thing spoken, or debated at a Committee.

15 Maij 22 Jac. 1.Id. 36. Upon Com­plaint from the Grand Committee for Grievances, That they had sent several Warrants for divers Per­sons to bring in their Patents, which they had not done: the House order'd the Serjeant at Arms to send for them.

The Commiteee for Trade is sometimes made of a Grand Com­mittee of the whole House,Id. 9. as in 21 Jac. 1.

The Committees for Religion, Ibid. Grievances, 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.

8 & 13 Martij 21 Jac. 1.Id. 36. Upon Report from the Committee for [Page 521]Trade (which then was a Grand Committee) the House was moved for their Order to the Merchants Adventurers to bring in their Pa­tents, and that the Inventor of the pretermitted Customs shou'd at­tend the Committee.

The Commons, Rush. Coll. 225. upon Debate of what fell from his Majesty, and the Lord Keeper, turned the House into a Grand Committee, order'd the Doors to be lock'd, and no Members to go forth; and that all Proceed­ings in all other Committees shall cease, till the House come to a Re­solution in this Business.

CHAP. XIX. Concerning standing Com­mittees.

THE Commons being the General Inquisitors of the Realm,4 Inst. 11. have principal Care in the Beginning of the Parliament, to appoint days of Committees, viz. of Grievances (both in the Church and Commonwealth) of Courts of Ju­stice, of Priviledges and Advance­ment of Trade.

In Parliament there have usual­ly been five standing Committees appointed in the Beginning of the Parliament, Scobel 9. and remaining du­ring all the Session: other Com­mittees were made occasionally, and dissolved, after the Business committed to them was reported.

  • Standing Com­mittees are for Priviledges and Elections.
  • Standing Com­mittees are for Religion.
  • Standing Com­mittees are for Grievances.
  • Standing Com­mittees are for Courts of Justice.
  • Standing Com­mittees are for Trade.
    Ibid.

These Committees when they meet,4 Inst. 12. they elect one of them to sit in their Chair, in likeness of the Speaker. The Committee may examine, and vote the Questions handled by them; and by one, whom they appoint, report their Resolution to the House; and the House sitting, the Speaker to de­termine the same by Question.

The Committees for Religion, Scobel 9. Grievances, 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. [Page 224]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. [...] [Page 226]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 [Page 227]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 [Page 228]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 [Page 229]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 [Page 230]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 [Page 231]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 it self: The Commission of Adjourn­ment we never read, but say, this House adjourns it self. If the King write to an Abbot for a Coro­dy, for a Vallet, if it be ex rogatu, tho' the Abbot yields to it, it binds [Page 233]not. Therefore I desire that it be entred, that this be done ex Rogatu Regis.

And this Matter touching his Majesties pleasure about the Re­cess,Rush. Coll. 537. was referred to a Committee, and to consider the Power of the House to adjourn it self.

The Soveraign may adjourn the Parliament, Sir Simon d'Ewes Jour. 318. Col. 2. as well as the Parlia­ment adjourns it self.

When a Parliament is call'd,4 Inst. 28. Hutton 61. Vid. Sir S. d'Ewes Jour. 407. Col. 1. and doth sit, and is dissolved, with­out any Act of Parliament passed, or Judgment given, it is no Sessi­on of Parliament, but a Conven­tion.

18 Rich. 2.4 Inst. 28. The Petitions of the Commons were answered, and a Judgment given in the King's Bench reversed, but no Act pass't; yet without Question it was a Session, else the Judgment should not be of force.

Many times Judgments given in Parliament have been executed,Ibid. the Parliament continuing, before any Bill Pass't.

If divers Statutes be continued till the next Parliament, Hutton 61. or next Session, and there is a Parliament or Session, and nothing done there­in as to Continuance; all the said Statutes are discontinued, and gone.

8 Apr. 1604.Hakewel 180. In the last Session of the first Parliament of K. James the first, the House being desirous to have a Bill forthwith pass't, de­clared, That the Royal Assent to one Bill, or more, did not dissolve the Session, without some special De­claration of his Majesties Pleasure to that purpose.

1 & 2 Phil. & Mar. Ibid. The King and Queen came of purpose into the Parliament House to give their Assent to Cardinal Pool's Bill; and Resolved upon the Question by the whole House, That the Session was not thereby concluded, but they might proceed in their Business, notwith­standing the Royal Assent given. But for more Security, it is usual to insert a Proviso to that purpose.

If there be divers Sessions in one Parliament, Are. Parl. 93. Crompton's Jour. 7. b. 12 b. and the King signs not a Bill till the last; there all is but one and the same day, and all shall have relation to the first day of the first Session; and the first day and the last are but one Parliament, and one and the same day; unless special mention be made in the Act, when it shall take its force.

CHAP. XXI. The proper Laws and Cu­stoms of Parliament.

THE Laws, Customs, Liber­ties, 4 Inst. 50. and Priviledges of Parliament are better to be learn'd out of the Rolls of Parliament, and other Records, and by Precedents, and continual Experience, then can be expressed by any one mans Pen.

As every Court of Justice hath Laws and Customs for its Directi­on,4 Inst. 15. some by the Common Law, some by the Civil and Canon Law, some by peculiar Laws and Customs, &c. so the High Court of Parliament suis propriis Legibus, & Consuetudi­nibus subsistit.

It is Lex & Consuetudo Parlia­menti, Ibid. that all weighty Matters in any Parliament moved, concerning the Peers of the Realm, or Com­mons in Parliament assembled, ought to be determin'd, adjudged, and discussed by the Course of Parliament, and not by the Civil Law, nor yet by the Common Laws of this Realm used in more Inferi­or Courts: which was so declared to be secundùm Legem, & Consuetu­dinem Parliamenti, concerning the Peers of the Realm, by the King, and all the Lords Spiritual and Temporal: and the like pari Rati­one is for the Commons, for any thing moved or done in the House of Commons: and the rather, for [Page 237]that by another Law and Custom of Parliament, the King cannot take notice of any thing said or done in the House of Commons, but by the Report of the House of Commons; and every Member of Parliament hath a Judicial Place, and can be no Withess. And this is the Reason that Judges ought not to give any Opinion of a Mat­ter of Parliament, because it is not to be decided by the Common Laws, but secundùm Legem & Consuetudi­nem Parliamenti: and so the Judg­es in divers Parliaments have con­fessed. And some hold, That e­very Offence committed in any Court, punishable by that Court, must be punish'd (proceeding cri­minally) in the same Court, or in some higher, and not in any Infe­rior Court; and the Court of Par­liament hath no higher.

By the ancient Law and Custom of Parliament, Id. 14. a Proclamation ought to be made against being arm'd, against Games, Plays, and strange [Page 238]Shows, &c. during the Parliament; that the Parliament may not be disturbed, nor the Members there­of (who are to attend arduous and urgent Business) be not withdrawn.

Dec. 15. 1597.Towns. Coll. 116 Vide Sir S. d'Ewes Jour. 505. Col. 1. Resolv'd, according to the ancient Custom of the House, that all the Members of the same, which did speak against passing of the Bill, shou'd go forth of the House, to bring the Bill into the House again, together with the re­sidue of the Members which went out before with the passing of the said Bill. All the Members of the House being gone forth except Mr. Speaker and the Clerk, Mr. Con­troller brought in the Bill in his hand, accompany'd with all the Members of the House, and deli­ver'd the said Bill to Mr. Speaker.

17 Dec. 1597.Id. 117. Sir Simon d'Ewes Jour. 574. Col. 2. The same Cere­mony on the like Occasion omit­ted, upon a Motion of the Speaker; and order'd accordingly upon the Question.

18 Dec. 1601.Towns. 332. As the Speaker [Page 239]was coming to the House in the Morning, the Pardon was deliver'd unto him, which he took, and de­liver'd it to the House: which they sent back again, because it was not brought according to Course.

The Subsidy of the Clergy was sent in a Roll,Id. 333. according to the usual Acts: to which Sir Edward Hobby took Exceptions, because it was not sent in a long Skin of Parchment under the Queens Hand and Seal: so it was sent back, and then the other was sent.

Si les Commons grant Poundage pur quatre Ans, Brook 119.4. Crompt. 8. & les Seigneurs grant nisi pur deux Ans; le Bill ne serra re-bayl al Commons: mes si les Commons grant nisi pur deux Ans, & les Seigneurs pur 4 Ans, la ceo serra redeliver al Commmons. Et in cest case les Seigneurs doient fair un Scedule de lour Entent, ou d'endorcer le Bill en cest Form, Les Seigneurs ceo assentont, pur durer pur quatuor Ans: Et quant les Commons ount le Bill arere, & ne volent assenter [Page 240]a ceo, ceo ne poet estre un Act: mes si les Commons volent assenter, don­ques ils endorce lour Respons sur le Margent de bass deins le Bill en tiel Form; les Commons sont assen­tuz al Scedule les Seigneurs, a mesme cestuy Bill annex; & donques serra bayl al Clerk del Parliament.

If the Commons grant Poun­dage for four years, and the Lords grant 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 [Page 241]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 [Page 224]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 [Page 243]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, [Page 245]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 [Page 246]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 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 Ʋse 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 [Page 249]call'd, and thereupon Edward Lewk­nor, Sir Simon d'Ewes Jour. 156. Col. 1, 2. John Bullock, Nicholas Plum­tree, 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 bare­headed, 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. [...]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 [Page 253]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 [Page 254]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 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 [Page 255]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 [Page 256]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 [Page 259]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 [Page 261]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 [Page 262]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 [Page 263]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 [Page 264] 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 [Page 265]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 [Page 266]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 [Page 267]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 [Page 268]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 [Page 269]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 [Page 270]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 [Page 271]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 [Page 272]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 [Page 273]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: [Page 274]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 [Page 275]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 [Page 276]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 [Page 277]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 [Page 278] 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 [Page 279]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 [Page 280] 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 Ware­house 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 Ʋnder-Sheriff of Middlesex was call'd to the Bar, for causing Alexander Melling, Servant to the Chancellor [Page 282]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 Ʋnder-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 [Page 283]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 [Page 284]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 [Page 285]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) [Page 286]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. [Page 287] 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 [Page 288]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 [Page 289]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 [Page 290]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 was one of his Clerks, and nearest Servants; and that the Priviledge was now as warrantable as in the Time of sitting, and pray'd the Court to take Notice of it.

During another Adjournment in March following,Id 103. the Speaker (war­ranted by the general Order) at the desire of Sir Edmund Ludlow, who was summon'd to attend the Exe­cution of a Commission out of the Chancery, writ a Letter to the Com­missioners [Page 291]to excuse his Attendance, and that he shou'd not be prejudi­ced by his Absence.

In May 1607 during an Adjourn­ment, Ibid. the Speaker directed a Letter to the Lord President and Council at York, to stay Proceedings in a Suit against Talbot Bowes, a Mem­ber of the House.

29 Febr. 1575. One Williams, Id. 113. 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.

23 Apr. 1 Mar. One Monington, Ibid. for striking William Johnson a Bur­gess, was sent for, and confessing it, was committed to the Tower.

28 Nov. 1601.Ibid. Towns. Coll. 259. Vide Sir S. d'Ewes Jour. 658. Col. 1. Complaint being made by Mr. Fleetwood a Member of the House, That one Holland a Scrivener, and one Brook his Ser­vant, had evil intreated and beaten the Servant of the said Mr. Fleet­wood in his Presence; they were both sent for by the Serjeant, and [Page 292]brought to the Bar; and for the said Offence committed for five days to the Serjeant. And that they should pay double Fees.

12 Febr. 18 Jac. 1.Memorials, 114. Mr. Lovel, a Member of the House, inform'd, 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 be committed to the Tower.

16 Jun. 1604.Ibid. Complaint being made of one Thomas Rogers a Cur­rier, dwelling in Coleman-street, for abusing Sir John Savill 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.

1 Car. 1.4 Inst. 48. The Sheriff for the County of Buckingham was chosen Knight for the County of Norfolk, and return'd into the Chancery; and having a Subpoena served upon him at the Suit of the Lady C. pendente Parliamento, upon Motion, he had the Priviledge of Parliament al­low'd to him by the Judgment of the whole House of Commons.

43 Eliz. 1601.Towns. Coll. 195. Vide Sir S. d'Ewes Jour. 629. Col. 1. This day a Page was brought to the Bar, whom Sir Francis Hastings had caused to be committed, for that as he went down the Stairs, the Page offer'd to throng him. But upon Sir Fran­cis Hastings his Intreaty, speaking very earnestly for him, and upon the Pages submission upon his knees at the Bar, he was discharged.

44 Eliz. 1601.Towns. Coll. 229. Vid. Sir S. d'Ewes Jour. 643. Col. 2. Mr. William Morris Burgess for Beaumaris, coming on his way to London, his Man was ar­rested at Shrewsbury. Order'd, That the Bayliff, and he that procured the Arrest, and the Serjeant be sent for. [Page 292] [...] [Page 293] [...]

44 Eliz. 1601.Towns. Coll. 225, 226. The Solicitor of one Langton a Burgess for Newton in Lancashire was arrested at the Suit of one Musket a Taylor, and committed to the Compter. Agreed by the House, That both Musket and the Serjeant shou'd pay the Soli­citor's Costs and Damages, and be imprison'd three days in the Serje­ant's Custody, and to pay the Ser­jeant attending this House his Fees.

The Parliament shall not give Priviledge to any contra morem Parliamentarium, Rush. Coll. 663. to exceed the bounds and limits of his Place and Duty. And all agreed, That regu­larly he cannot be compelled out of Parliament to answer things done in Parliament in a Parliamentary Course: but it is otherwise where things are done exorbitantly, for those are not the Acts of the Court.

16 Car. 1.Id 2d Part of the 2d Vol 1147. Resolved, That the Lords voting the propounding and declaring matter of Supply, before it was moved in the House of Commons, was a Breach of Priviledge of the House.

No Priviledge is allowable in Case of the Peace betwixt private men,2 Nalson 450. much more in Case of the Peace of the Kingdom.

Priviledge cannot be pleaded a­gainst an Indictment for any thing done out of Parliament, Ibid. because all Indictments are contra Pacem Do­mini Regis.

Priviledge of Parliament is grant­ed in regard of the Service of the Commonwealth, Ibid. and is not to be u­sed to the danger of the Common­wealth.

All Priviledge of Parliament is in the Power of Parliament, Ibid. and is a Restraint to the Proceedings of other inferiour Courts, but is no Restraint to the Proceedings of Parliament.

Dec. 1641. Resolved,2 Nalson, 729. That the set­ting of any Guards about this House, without the Consent of the House, is a Breach of the Priviledge of this House, and that therefore such Guards ought to be dismissed.

Resolved upon the Question,Id. 741. ne­mine [Page 296]contradicente, That the Privi­ledges of Parliament were broken by his Majesties taking Notice of the Bill for suppressing of Souldiers, be­ing in agitation in both Houses, and not agreed on. Ibid. Resolved upon the Question, Nemine Contradicente, That his Majesty, in propounding a Limitation and provisional Clause to be added to the Bill, before it was presented to him by the Consent of both Houses, was a Breach of the Priviledge of Parliament. Ibid. Resolved upon the Question, Nemine Contra­dicente, That his Majesty expres­sing his Displeasure against some Persons, for Matters moved in the Parliament, during the Debate, and preparation of that Bill, was a Breach of the Priviledge of Parlia­ment.

Whereas his Majesty in his Roy­al Person the 4th of Jan. 1641.2 Nalson 823. did come to the House of Commons, with a great Multitude of Men, armed in a warlike manner, with Halberds, Swords, and Pistols, who [Page 297]came up to the very door of the House, and placed themselves there, and in other Places and Passages near to the House, to the great Terror and Disturbance of the Members then thereof sitting, and according to their Duty, in a peaceable and orderly manner, treating of the great Affairs of both Kingdoms of England and Ireland; and his Majesty having placed himself in the Speaker's Chair, did demand the Persons of divers Members of that House to be delivered unto him.

It was thereupon declared by the House of Commons, Ibid. That the same is a high Breach of the Rights and Priviledges of Parliament, and inconsistent with the Liberty and Freedom thereof; and therefore the House doth conceive, they could not with safety of their own Per­sons, or the Indempnities of the Rights and Priviledges of Parlia­ment, sit there any longer, without a full Vindication of so high a [Page 298]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, [Page 300] 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 [Page 301]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 [Page 303]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 [...]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 Ʋpper House, Whether a Per­son [Page 305]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 Purveyors; and also [Page 306]they sent to the King to inform him of it: but before their Messengers came to the King, two of the Privy Council, scilicet, Sir John Stanhope, and Sir John Herbert, were sent to the King by the Lower House, to inform him that they had heard that his Grace was displeased with the House for their Sentence given for Sir Francis Goodwyn, as well as in the Matter of the Sentence, which was, (as they heard) said to be against Law; as also for the manner of their Proceedings, be­ing done hastily, without Calling to it either Sir John Fortescue, or his Council, or without making his Grace acquainted with it.

And therefore they desired his Grace to understand the Truth of this Matter, and also told him that They were ready, with his good leave, with their Speaker, to attend his Majesty to give him Sa­tisfaction about their Proceedings.

But the King told them they came too late, and that it ought to have been done sooner, calling the House Rash and Inconsiderate; but yet notwithstanding he was content to hear their Speaker in [Page 307]the Morning at Eight of the Clock.

Upon this Message Committees were chosen to consider of the Things and Matters aforesaid, which should be deli­vered to the King in Satisfaction of the Sentence given by the House; which after­wards were consider'd of, and digested by the Speaker, and Committees in Three Points, viz.

  • 1. In the Reasons and Motives of their Resolutions.
  • 2. In the Presidents, which were those I before have reported.
  • 3. And in Matters of Law.

Which were those Matters of Law also before reported by me; with another Ad­dition.

That in the time of Henry the Sixth, the Speaker of the Parliament was Arrest­ed in Execution at the Suit of the Duke of York; and the Question being put to the Judges at that time, Whether the Speaker ought to have his Priviledge: It was said by them, That they were Judges of the Law, and not Judges of Parliament.

The Reasons and Motives were the free Election of the County, the Request of one of the House, the double Return of the Sheriff, with a Commemoration of the length of the time since the Out­lawries, and with that the Payment of the Debts.

To this Report the King answered, That he now ought to change his Tune which he used in his first Oration, scilicet, Thanks­giving, to Grief and Reproof. But he said, That it was as necessary they should be Reproved, as Congratulated; and there­fore he cited a parcel of Scriptures, wherein God had so done with his People Israel, nay, with King David, the Peo­ple whom he tendered as the Apple of his Eye, and David, who was a Man after his own Heart.

He said, That since Sir Francis Good­wyn was received by the House upon Rea­sons and Motives inducing the House thereunto, so the King upon Reason too, took consideration of Sir John Fortescue, being one of the Council, an ancient Coun­sellor; a Counsellor not chosen by the King, but by his Predecessors, and so he [Page 309]found him; and therefore he endeavoured to grace him, being the only Man of them that had been disgraced; the King protesting that he would not for any thing in the World, offer unjustly any Disgrace to any Man in the Nation. Be­sides, he did not proceed Rashly, as they had proceeded, but upon Deliberation with double Advice, as well with that of his Council, as with that of his Judges.

And in his Answering the Presidents, he said, That those were his own proper Records, and to use them against Him­self was over-great Weenings: But in Pre­sidents, he said, that they ought to re­spect Times and Persons; and therefore said, That Henry the Sixth's Time was troublesome, he himself Weak and Impo­tent. And as for the other Presidents, they were in the Time of a Woman, which Sex was not capable of Mature Deliberation; and so he said where Infants are Kings, whom he called Mi­nors.

For the Law part, he referred to the Answer of his Judges, who by the Lord Chief Justice gave these Resolutions, [Page 310]they all unanimously agreeing in Them.

1. That the King alone, and not the Parliament House, had to do with the Returns of the Members of Parliament; for from him the Writs issued, and to him the Sheriff is commanded to make his Returns; but when a Man is Return­ed and Sworn, the Parliament House hath to do with Him, and the Sheriff ought to Return the Outlawry, if he knew it before his Return.

2. They Resolved clearly, That an Out­lawed Person cannot by the Law be a Member of the Parliament House; but for that Cause the King might Refuse the Return of Him, and for that Cause he was removable out of the House. And therefore the Lord Chief Justice said, That in the 35th of Henry the Sixth it was so Adjudged in Parliament; which answers the Presidents vouched by the Commons of that time. And also he said, That in the first year of Henry the Se­venth it was Adjudged in Parliament, That Persons Outlawed or Attainted could [Page 311]not sit in Parliament without Restitution by Act of Parliament. And he said, That though the Books do not warrant his say­ing, yet the Parliament Roll (which he had seen) does warrant it, which any Man might see.

3. They Resolved at the Instance of the King Himself, That the Party could not be Discharged from the Outlawry without a Scire Facias sued against the Party Cre­ditor, Plaintiff in Debt; and Justice Windam for that purpose recanting his former Opinion, said, That he upon per­using of his Books, and by the Reasons of the Law, was of Opinion with his Compa­nions.

4. As for the Statute of the 31th of the Queen, concerning Proclamation to be made in the County, &c. they all Resol­ved as before times it had been Resolved, That no Outlawry by that Statute was void until Judgment; Declaring, That here was no Proclamation issued forth to the County where the Party was Resiant at the time of the awarding of the Exigent.

5. As for the Statute of 7 Hen. 4. which Enacts, That the Indenture shall be only the Return of the Sheriff; the Judg­es said, That was true, that such was the Statute, and that that was his Return for so much; but that Statute doth not re­strain the Sheriff from Returning any o­ther thing Material which Disables the Parties chosen.

6. It was held, That the Indorsment of the Writ, comprehending the Matter of the Outlawry, was Material, and not a Nu­gation.

7. And lastly, They Resolved that by the Return of the Sheriff, it appeared that Sir Francis Goodwyn was the same Person who was Outlawed 31 Eliz. by the Name of Francis Goodwyn Esquire; and 39 Eliz. by the Name of Francis Goodwyn Gentleman, and that by the Words of the Return, scilicet, Idem Fran­ciscus Goodwyn Miles Ʋtlagatus existit, &c. And They also agreed, That no Person Outlawed ought to have his Priviledge of the Parliament House; and that all the [Page 313] Presidents vouched by the Commons were after the Parties were Members of the House, and not before they were Return­ed.

And notwithstanding their Resolutions, scilicet, the Resolution of the Judges, the Commons House hold clearly that Sir Fran­cis Goodwyn was well Received into Par­liament; and the King commanded them to Confer together, and Resolve if they could of Themselves, and if they could not Resolve, to Confer with the Judges, and then to Resolve, and when they were Resolved, then to deliver their Resolution to his Councel, not as Parliament men, but as his Privy Council, by whose hands he would receive the Resolution; and for that purpose he left them behind him, he himself being to ride to Royston a hunt­ing And to pursue the Commandment of the King, the Commons House clearly Re­solved, That what they had done, was well and duly done, and they were of O­pinion clearly against the Judges, as to the Matter of the Outlawry, and that Ra­tione of the Presidents: And also that the Parliament only had to do with the [Page 314] Sheriff's Returns of Members of Parlia­ment, and that the Returns ought not to be made till the first day of the Parlia­ment, and therefore They would not con­fer with the Judges: But they appointed a Committee to consider of the Reasons to be delivered to the Council for the Satis­faction of the King; which Committee by the Assent of All the House of Commons, sent to the Lords this Resolution follow­ing, videlicet;

As to what the King taxed the House for, That they medled with the Sheriff's Return of Members of Par­liament, Note, This Resolution was writ­ten in Parchment, and so deliver­ed to the Council of the King, not as Parliament men, but Repre­senting the King's Person, and a Copy thereof was kept in the House. being but one half of the Body, the Lords being one, and the Principal Part of the Parliaments Body.

As to that They Answered, That all Writs for the Election of Members of Par­liament were returned into the Parlia­ment House before 7 Hen. 4. (at which time it was Enacted, That all such Re­turns ought to be made in Chancery,) and [Page 315]that appeared by the Records from the Time of Edward the First, until the said Year of the Seventh of Henry the Fourth. And therefore the Parliament must of Necessity have only medled with the Re­turns till the making of the said Statute of the Seventh of Henry the Fourth, at which time the place of the Return was alter'd, and Enacted to be in Chancery, but yet that did not take away the Ju­risdiction of the Parliament to meddle with the Returns of the Members of Par­liament, but that remained as it was be­fore: And this was manifest as well by Reason as by Ʋse. For that Court is to meddle with Returns, where the Appear­ance and Service of Members is to be made and used; But in the Parliament only the Appearance and Service are to be made and used, and therefore in the Parliament only are the Returns to be examined and censured.

Likewise ever since the making of the said Statute of the Seventh of Henry the Fourth, the Clerk of the Crown attends the Parliament every day till the end of it, with all the Writs and Returns; and at [Page 316]the end of the Parliament, he brings them into the Petty Bag.

The Presidents also do warrant this in­termedling with Returns for the Parlia­ment, as in the Twenty ninth of the Queen, a Writ issued forth to the Sheriff of [...] who made a Return be­fore the day, into Chancery, and the Chancellour upon that Return containing such matter, as this Writ now contains, sent a second Writ to the said Sheriff, who thereupon made a new Election, and that second Writ was also returned, and both the Writs and Returns brought into Parliament, and there Censured by the Parliament, That the first should stand, and that the second Election was void; and that the Chancellour hath no Power to award a second Writ, nor to meddle with the Return of it; and divers other Presidents were shewn by the Commons to the same Effect, videlicet,

In the Nine and twentieth of Queen Elizabeth One.

And in the Three and fortieth of Queen Elizabeth another.

And in the Thrity fifth of the Queen two.

Whereof one was upon the Return of the Sheriff, that the Party first elected was Lunatick, and thereupon the Par­lament examined it, and upon Examina­tion thereof they found the Return true, and gave a Warrant for another Writ.

As to the Matter, that they were but One half of the Body; to that they said, That though in the making of Laws they were but an Half Body, yet as to Cen­suring of Priviledges, Customs, Orders, and Returns of their House, They were an Entire Body; as the Ʋpper House was for their Priviledges, Customs and Orders, which Continual and Common Ʋsage hath Approved of.

As to their Charge of having used Pre­cipitancy and Rashness; they Answered, That they used it in such a Manner as in all Other Cases they were wont to do, scilicet,

To have first a Motion of the Matter in Controversie, and then they caused the Clerk of the Crown to bring the second day the Writs and Returns, and They [Page 318]being thrice read, they proceed to the Examination of them, and upon Examina­tion gave Judgment which was the true Proper Course of the Place.

As to the House's not having used the King well, the thing being done by his Command; they say, That they had no Notice before their Sentence, that the King himself took any special Regard of that Case, but only that his Officer, the Chancellour, had directed the second Writ as formerly had been done.

As to the Matter of the Outlawry, They said, That they understand by his Royal Person more strength and light of Rea­son from it than ever before: and yet it was without Example, That any Member of the House was put out of the House for any such Cause; but to prevent that, they had prepared a Law, That no Out­lawed Person for the time to come should be of the Parliament, nor any Person in Execution should have the Priviledge of Parliament.

But they said further, That Sir Francis Goodwyn was not Outlawed at the Day of his Election, for he was not Quinto Ex­actus, the five Prolamations never had been made, which Proclamation they in London always spare, except the Party, or any for him, require it; and that Exigent was never Returned, nor any Writ of Certiorari directed to the Coroners to certifie it, but after his Election, which was a thing unusual, the Money being paid, the Sheriffs being long since dead, to Disenable the said Goodwyn to serve in Parliament, that the Exigent was return­ed, and the Names of the deceased She­riffs put thereto. Et ex hoc fuit without doubt that Goodwyn could not have a Scire Facias, for there was no Outlawry against him, and by Consequence the Pardons had discharged him.

And They farther shewed to the King, That if the Chancellour only could examine Returns, then upon every Surmise, whether it were True or False, the Chancellour might send a Second Writ, and cause a New Ele­ction to be made; And thus the Free Ele­ction [Page 320]of the County should be Abrogated, which would be too Dangerous to the Com­monwealth.

For by such means the King and his Council might make Any Man, whom they would, to be of the Parliament House, a­gainst the great Charter and the Liber­ties of England.

FINIS.

BOOKS Printed for, and sold by Timothy Goodwin at the Mai­den-head against St. Dunstan's Church in Fleetstreet.

1. AN Enquiry into the Power of Dispensing with Penal Statutes, together with some Ani­madversions upon a Book writ by the late Lord Ch. Justice Herbert, Entituled, A short Account of the Authorities in Law, upon which Judgment was given in Sir Edw. Hales Case.

2. The Power, Jurisdiction, and Priviledge of Parliament, and the Antiquity of the House of Com­mons asserted, occasioned by an In­formation in the Kings Bench by the Attorney-General, against the then Speaker of the House of Commons: As also, A Discourse concerning the Ecclesiastical Jurisdiction in the Realm of England, occasioned by the late High Commission in Eccle­siastical Causes in King James II.

3. A Defence of the late Lord [Page] Russel's Innocency. Together with an Argument in the great Case con­cerning Elections of Members to Parliament, between Sir Sam. Ber­nardiston Bar. Plaintiff, and Sir Wil. Soames Sheriff of Suffolk, Defen­dant, in the Court of Kings Bench, in an Action upon the Case, and afterwards by Error sued in the Exchequer Chamber.

4. The Lord Russel's Innocency further defended by way of Reply to an Answer, Intituled, The Magi­stracy and Government of England Vindicated.

These four writ by the Rt. Hon. Sir R. Atkyns Knight of the Bath, and Lord Chief Baron of their Majesties Court of Exchequer.

5. A New Declaration of the Confederate Princes and States, a­gainst Lewis XIV. King of France and Navar: Deliver'd in a late Au­dience at Versailles, July 5. 1689.

6. Politica Sacra & Civilis: or, a Model of Civil and Ecclesiastical Government, wherein, besides the [Page]Positive Doctrine concerning the State and Church in General, are debated, the Principal Controver­sies of the Times concerning the Constitution of the State and Church of England. By George Law­son, Rector of More in Salop.

7. The Parsons Councellor, with the Law of Tythes and Tything. In two Books. The fourth Edition with the Addition of a Table. Written by Sir Simon Degge.

8. The Gentleman's Jockey and Approved Farrier, instructing in the Natures, Causes, and Cures of all Diseases incident to Horses. The Eighth Edition, Enlarged.

9. Popery, or the Principles and Positions approved by the Church of Rome, dangerous to all. And to Protestant Kings and Supreme Powers more especially pernicious. By Thomas Lord Bishop of Lincoln.

10. A Modest Vindication of the Protestants of Ireland, in An­swer to the Character of the Pro­testants of Ireland.

11. Sir St. John Broderick's Vindication of himself from the Aspersions cast on him in a Pam­phlet written by Sir Richard Buck­ley, Entituled, Proposals for send­ing back the Nobility and Gentry of Ireland.

12. Animadversions on Sir. R.B. Proposals for sending back the No­bility and Gentry of Ireland.

13. The Justice of Parliament in Inflicting Penalties subsequent to Offences vindicated, and the lawfulness of the present Govern­ment asserted.

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