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, I Jac. I., from an original French manuscript, translated into English.

Lex Parliamentaria: OR, A TREATISE OF THE LAW and CUSTOM OF THE PARLIAMENTS OF England,

By G. P. Eſq

With an APPENDIX of a Caſe in Parliament between Sir Francis Goodwyn and Sir John Forteſcue, for the Knights Place for the county of Bucks, 1 Jac. 1. From an Original French Manuſcript, Tranſlated into English.

〈…〉

TO THE Moſt Supreme Court OF THE KINGDOM, THE PARLIAMENT OF England:

The AUTHOR doth moſt humbly Dedicate this his ſmall Treatiſe of the LAW and CUSTOM of PARLIAMENT.

THE PREFACE TO THE READER.

I Am very ſenſible, that aſſoon as this Treatiſe is ſubmitted to publick View, '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 • 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 they may not at any time ſuffer Invaſions to be made upon them, by what plauſible Pretences ſoever: but as it is impoſſible for men of the moſt tenacious Faculties to keep all things constantly in their minds, therefore this is to eaſe and refreſh their Memories in caſe of any Forgetfulneſs, and they may with a very little Trouble have always this in their Pockets, which perhaps ſome may not be able without a great deal of Trouble to carry always in their Heads.

When he that is converſant in Study and Books, cannot carry a Library about him; he may eaſily recollect what is expedient for him, from the Supplement of this Epitome. Such as ſhall hereafter be promoted to that honourable Station of being Senators of the Kingdom, will find it much more eaſie to receive ſhort Information from this little Manual; than to be obliged on every Occaſion to conſult the publick Records, and turn over weariſome Volumes. And they who do not expect Admiſſion into a Parliament Houſe, will yet receive this as no unprofitable Diverſion, to obſerve and know the admirable method of Parliamentary Proceedings; the Exactneſs and Decency of their Orders; the Wiſdom and Prudence of their Cuſtoms; the Extent of their Powers, and the Largeneſs of their Priviledges.

Wherefore, without any Flattering, or Arrogance to my ſelf, I ſhall make bold to tell you, I am verily perſwaded that what I have taken pains to collect from ſeveral Books, and to digeſt into this ſmall Compaſs, for my own Convenience and Information, will conduce to the general Satisfaction of all that read it; which was one main Reaſon that induced me to publiſh it.

THE HEADS Of the ſeveral CHAPTERS Contained in this TREATISE. CHAP. 1. THE Parliament. Page 1 CHAP. 2. Power of Parliament. Page 18 CHAP. 3. The Houſe of Lords. Page 41 CHAP. 4. Power of the Houſe of Lords. Page 53 CHAP. 5. Houſe of Commons. Page 61 CHAP. 6. Power of the Houſe of Commons. Page 66 CHAP. 7. Power of Parliament over their own Members. Page 87 CHAP. 8. Elections of Members. Page 104 CHAP. 9. Who may be Electors. Page 113 CHAP. 10. Who may be Elected. Page 115 CHAP. 11. Returns of Sheriffs, and Amendments of Returns. Page 125 CHAP. 12. Election of Speaker. Page 130 CHAP. 13. Buſineſs of the Speaker. Page 141 CHAP. 14. Orders to be obſerved in the Houſe. Page 148 CHAP. 15. Orders of the Houſe. Page 156 CHAP. 16. Paſſing of Bills. Page 174. CHAP. 17. Concerning Committees. Page 202 CHAP. 18. The Order and Power of Grand Committees. Page 215 CHAP. 19. Concerning ſtanding Committees. Page 222 CHAP. 20. A Seſſion of Parliament. Page 229 CHAP. 21. The proper Laws and Cuſtoms of Parliament. Page 235 CHAP. 22. Priviledge of Parliament. Page 257 The Appendix. Page 299

The NAMES of the AUTHORS quoted in this TREATISE. ATkyns Sir Robert's Argument of the Power and Juriſdiction of Parliament. Arcana Parliamentaria. Brook. Brownlow. Coke on Littleton. Coke's fourth Inſtitute. Coke's Twelfth Report. Crompton's Juriſdiction, &c. Dyer. Elſyng. d'Ewes Sir Simond's Journal. Forteſcue. Hakewel. Herbert's Henry the Eighth. Hollis Lord. Holling ſhead. Hunt. Hutton. Kelwey. Knyghton de Eventibus Angliae Leonard's Reports. Modus tenendi Parliamentum. Moor's Reports. Nalſon's Collections. Petyt's Ancient Rights, &c. Petyt's Miſcellanea Parliamentaria. Plowden. Ruſhworth's Collections. Scobel. Selden's Judicature. Smyth Sir Thomas 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 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 〈 in non-Latin alphabet 〉 , lib. 2. c. 1. ſo. 21. b. Ceſtaſcavoir, Roy, Nobility, & Commons, qui font le Corps del Realm, eſt appel un Parliament, & lour Decree, un Act de Parliament; Car ſans touts troys (come ſi ſoit fait per Roy & Seigneurs, mes rien parle del Commons) neſt Aſcun Act de Parliament: i.e. The Aſſembly of the three Eſtates, to wit, the King, the Nobility, and the Commons, which make the Body of the Realm, is called a Parliament, and their Decree an Act of Parliament; for without all three (as if it be done by the King and Lords, but ſpeaks nothing of the Commons) there is not any Act of Parliament.

The word Parliament is uſed in a double ſenſe.

1.Engliſh Liberties, p. 78. Strictly, as it includes the Legiſlative Power of England, as when we ſay—an Act of Parliament; and in this Acceptation it neceſſarily includes the King, the Lords, and the Commons, each of which have a Negative Voice in making Laws, and without their Joint Conſent no new Laws can paſs, that be obligatory to the Subject.

2. Vulgarly, the Word is uſed for the two Houſes, the Lords and Commons; as when we ſay, The King will call a Parliament; his Majeſty has diſſolved his Parliament, &c.

This Court conſiſts of the King's Majeſty,4 Inſt. 1. ſitting there as in his Royal Politic Capacity, and of the three Eſtates of the Realm, viz. the Lords Spiritual, Arch-Biſhops, and Biſhops, (who ſit there by Succeſſion in reſpect of their Counties, or Baronies, parcel of their Biſhopricks) The Lords Temporal, Dukes, Marqueſſes, Earls, Viſcounts, and Barons, who ſit there by reaſon of their Dignities, which they hold by Diſcent, or Creation, (every one of which, both Spiritual and Temporal, ought to have a Writ of Summons, ex debito Juſtitiae) And the Commons of the Realm, whereof there be Knights of Shires, or Counties, Citizens of Cities, and Burgeſſes of Boroughs; all which are reſpectively elected by the Shires, or Counties, Cities, and Boroughs, by force of the King's Writ, ex Debito Juſtitiae, and none of them ought to be omitted: and theſe repreſent all the Commons of the whole Realm, and are truſted for them.

The King, Id. 2. and theſe three Eſtates are the great Corporation or Body Politic of the Kingdom, and do ſit in two Houſes: the King and Lords in one Houſe, called The Lords Houſe; the Knights, Citizens, and Burgeſſes in another Houſe, called The Houſe of Commons.

That which is done by this Conſent,Arc. Parl. 2. is called firm, ſtable, and ſanctum; and is taken for Law.

All the Judges of the Realm, Townſ. Collect. 5, 6. Vid. Crompton 1. b. Barons of the Exchequer, of the Coif, the King's Learned Councel, and the Civilians, Maſters of the Chancery, are called to give their Aſſiſtance and Attendance in the Upper Houſe of Parliament: but they have no Voices in Parliament, 4 Inſt. 4. But are made ſometimes joynt Committees with the Lords.

Every Engliſh-man is intended to be there preſent (either in Perſon,Arc. Parl. 3. Smyth's 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 the beſt Succeſs in Parliament. At a Parliament 7 Hen. 5. of the Lords Spiritual and Temporal, there appeared but Thirty, and there was but one Act paſs't, of no great weight. In 50 Ed. 3. all the Lords appeared in Perſon, and not one by Proxy; and ſo many excellent Things were done, that it was called Bonum Parliamentum.

At the Return of the Writs the Parliament cannot begin,Id. 6. but by the Royal Preſence of the King, either in Perſon, or Repreſentation.

The King's Perſon may be repreſented by Commiſſion under the Great Seal to certain Lords in Parliament, Id. 7. authorizing them to begin the Parliament, or to prorogue it, &c.

When a Parliament is call'd,Id. 28. and doth ſit, and is diſſolved, without any Act of Parliament paſſed, or Judgment given, it is no Seſſion of Parliament, but a Convention.

It is an Obſervation proved by a great Number of Precedents,Id. 32. that never any good Bill was preferred, or good Motion made in Parliament (whereof any Memorial was made in the Journal-Book, or otherwiſe:) Tho' ſometimes it ſucceeded not at the firſt, yet it hath never dy'd, but at one Time, or other, hath taken effect.

Matters of Parliament are not to be ruled by the Common-Law.Id. 17.

If Offences done in Parliament might have been puniſh'd elſewhere,Ibid. Vid. 1 Inſt. §. 108. it ſhall be intended, that at ſome Time it would have been put in Ure.

It doth not belong to the Judges to judge of any Law, Cuſtom,Id. 50. or Priviledge of Parliament.

It is the juſt and conſtant Courſe of Parliament to bring the Party accuſed to his Anſwer: yea, Seld. Judic. 95. tho' he fly Juſtice, yet to ſend out Proclamation into the Countries, that he appear at a Day, or elſe ſuch and ſuch Judgments ſhall be given againſt him.

What is done by either Houſe, according to the Law and Uſage of Parliament, Sir R. Atkyns Argument, &c. 14. is properly, and in the Judgment of the Law, the Act of the whole Parliament: and what concerns the one, muſt of neceſſity concern the whole; not meerly by Conſequence, but by an immediate Concernment, as being one and entire.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Statutes in England are made 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 after the Prince himſelf in preſence of both the Parties doth conſent unto, and alloweth, that is,Ibid. p. 73. the Prince's and whole Realm's Deed; whereupon juſtly no man can complain, but muſt accommodate himſelf to find it good, and obey it.

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

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

As for the Power of Parliaments over both the Statute and Common Law of this Realm, Raſtal's Statutes, fol 546. 25 H. 8. c 21. you will be beſt informed of it from the memorable words of an Act of Parliament it ſelf, which are as followeth, viz. Whereas this Realm recognizing no Superiour under God, but only the King, hath been, and is free from Subjection to any Man's Laws, but only to ſuch as have been deviſed, made, and ordained within this Realm, for the Wealth of the ſame, or to ſuch other as by Sufferance of the King and his Progenitors, the People of this Realm have taken at their free Liberty by their own Conſent to be uſed amongſt them, and have bound themſelves by long 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 Temporal and Commons repreſenting the whole State of this Realm in the moſt High Court of Parliament, have full Power and Authority, not only to diſpence, but alſo to authorize ſome Elect perſon or perſons to diſpence with thoſe and all other Human Laws of this Realm, and with every one of them, as the Quality of the perſons and Matter ſhall require. And alſo the ſaid Laws, and every of them to abrogate, adnul, amplifie, or diminiſh, as it ſhall be ſeen to the King, and the Nobles and Commons of this Realm, preſent in Parliament, meet and convenient for the Wealth of this Realm.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

If Inconveniencies neceſſarily follow out of the Law, only the Parliament can cure them.

If a Marriage be declared by Act of Parliament to be againſt God's Law,Id. 327. we muſt admit it to be ſo: for by a Law (that is by an Act of Parliament) it is ſo declared.

In many Caſes Multitudes are bound by Acts of Parliament, 4 Inſt. 4, 5. which are not Parties to the Elections of Knights, Citizens, and Burgeſſes, as all they that have no Free-hold, or have Free-hold in ancient Demeſne, and all Women having Free-hold, or no Free-hold; and Men within the Age of One and twenty years, &c.

It is declared by the Lords and Commons in full Parliament, Id. 14. upon Demand made of them on the Behalf of the King, that they could not aſſent to any Thing in Parliament, that tended to the diſheriſon of the King, and his Crown, whereunto they were ſworn.

The Expounding of the Laws Hakewel 94. doth ordinarily belong to the Reverend Judges; and in Caſe of greateſt Difficulty, or Importance, to the High Court of Parliament.

Errors by the Law in the Common Pleas are to be corrected in the King's Bench; 4 Inſt 22. Vid. Stat. 1. Jac. 1 c. 1. and of the King's Bench in the Parliament, and not otherwiſe.

Actions at Common Law are not determined in this High Court of Parliament, Selden's Judicature 2. yet Complaints have ever been received in Parliaments, as well of private Wrongs, as publick Offences. And according to the Quality of the Perſon, and Nature of the Offence, they have been retained, or referred to the Common Law.

There be divers Precedents of the Trial of Biſhops by their Peers in Parliament, Id 4.5. as well for Capital Offences, as Miſdemeanors, whereof they have been accuſed in Parliament. As the Arch-Biſhop of Canterbury, 15 Ed. 3. n. 6, 7, 8. & ibid. poſtea, 44. & 39. & ibid. 17 E. 3.22. And the Biſhop of Norwich, 7 Rich. 2. for Miſdemeanors: So were the Biſhops of York and Chicheſter tried for Treaſon by their Peers in Parliament, upon the Appeal of the Lords Appellants, 11 R. 2.

Anno 21 R. 2. The Commons Acenſed the Arch-Biſhop of Canterbury of Treaſon, and the Temporal Lords judged him a Traytor, and Baniſhed him: But if the Biſhop be accuſed out of Parliament, he is to be tried by an ordinary Jury of Free-holders; for his Honour is not inheritable, as is the Temporal Peers out of Parliament, ſave that only of their Trial. As no Day of Grace to be granted againſt them in any Suit. A Knight to be returned upon the Pannel where a Biſhop is Party, and no Proceſs in a Civil Action to be awarded againſt his Body, and the like. And by this it appeareth what Perſons are, de Jure, triable by the Lords in Parliament, viz. their Peers only.

Judgments in Parliaments for Death have been ſtrictly guided per Legem Terrae. Id. 168.

The Parliament hath three Powers;Sir Rob. Atkyns Argument, &c. 36. a Legiſlative, in Reſpect of which they are call'd the three Eſtates of the Realm: a Judicial, in reſpect of this it is call'd Magna Curia, or the High Court of Parliament: a Counſelling Power, hence it is call'd Commune Concilium Regni.

The Parliament gives Law to the Court of the King's Bench, Id. 49. and to all other Courts of the Kingdom: and therefore it is abſurd, and prepoſterous that it ſhou'd receive Law from it, and be ſubject to it. The greater is not judged of the leſs.

All the Courts of Common Law judge only by the ordinary Rules of the Common Law:Id. 50. but the Proceedings of Parliament are by quite another Rule. The Matters in Parliament are to be diſcuſſed and determined by the Cuſtom and Uſage of Parliament, and the Courſe of Parliament, and neither by the Civil, nor the Common Law, uſed in other Courts.

The Judges of all the Courts of Common Law in Weſtminſter are but Aſſiſtants,Ibid. and Attendants to the High Court of Parliament. And ſhall the Aſſiſtants judge of their Superiors?

The High Court of Parliament is the dernier Reſort, Ibid. and this is generally affirm'd, and held: but it is not the laſt, if what they do may yet again be examin'd, and controlled.

Becauſe the High Court of Parliament proceeds by a Law peculiar to that High Court,Id. 52. which is call'd Lex & Conſuetudo Parliamenti (and not by the Rules of the Common Law) and conſiſts in the Cuſtoms, Uſages, and Courſe of Parliament: no Inferior Court can, for this very Reaſon, judge, or determine of what is done in Parliament, or by the Parliament.

A Statute,Arc. Parl. 85. or Act of Parliament ſhall not be proclaimed, for the Parliament repreſents the Body of the whole Realm, for there are Knights, and Burgeſſes of every County, and Town. But otherwiſe where it is ordained by the Act, that it ſhall be proclaimed.

A man Attainted of Felony,Id. 100. or Treaſon, ſhall not be reſtored in Blood without Parliament.

28 Ed. 1. Petyt's Appendix to Miſcel. Parliament, n. 38. A Truce being concluded between the Engliſh and French, by King Edward's Ambaſſadors (who therein had diſhonorably agreed to include the Scots) the Ambaſſadors at the enſuing Parliament were ſharply rebuked and corrected, not only by the King himſelf, the Prelates and Nobles, but by the Commons.

The Court of Parliament was the Sanctuary, Turner's Caſe of Bankers, 36. whether the diſtreſſed Subject in his Exigence fled for Shelter, and Refuge, and alway found it.

Into the Sacred Boſom of Parliaments it was,Ibid. Vide Several Precedents and Records. that they powred out their Sighs and Groans with conſtant Succeſs: and when in Caſes of high Nature the Common Law was arreſted, and ſtopt in her Proceedings, Parliaments evermore ran into their Reſcue, and in dutiful ways diſcharged thoſe Locks and Bars which had been unjuſtly ſaſtned on the Exchequer.

The Right of the Crown of England, Stat. Proviſ. 25 Ed. 3. Raſt. Stat. 99. and the Law of the ſaid Realm is ſuch, that upon the Miſchiefs and Damages which happen to the Realm, the King ought, and is bound by his Oath (of the Accord of his People in Parliament) thereof to make Remedy, &c.

To conclude this Chapter, Le Parliament ad Abſolute poiar en touts Caſes, come a faire Leys, d'adjuger Matiers en Ley, à trier vie del home, à reverſer Errors en Bank le Roy; eſpecialment lou est aſcun Commune Miſchief que l'ordinary Courſe del Ley n'ad aſcun means à remedier; en tiel Caſe ceo eſt le proper Court. Et touts choſes que ils font ſont come Judgments. Et ſi le Parliament meſme erre, Fincht's 〈 in non-Latin alphabet 〉 , 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 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, 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 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] or [Not Content.] 4 Inſt. 34. Firſt for himſelf, and then ſeverally for ſo many as he hath Letters and Proxies.

A Bill had three Readings in one Forenoon,Townſ. Coll. 11. in the Houſe of Lords.

Where a Committee of Lords is ſelected out to meet with another Committee of the Houſe of Commons; Townſ. Coll. 9. neither the Judges, being but Aſſiſtants, nor the Queens Council, being but Attendants of and upon the Houſe, were ever nominated as Joynt-Committees with the Lords. But when the Lords among themſelves do appoint a Committee to conſider of ſome ordinary Bill, eſpecially if it concern Matter of Law, it hath been anciently uſed, and may ſtill. without Prejudice to the Honour of the Houſe, that the King's learned Council, but eſpecially the Judges, may be nominated as Committees alone, or as Joynt-Committees with the Lords.

January 19. 1597. 39 Eliz. It was reſolved,Townſ. Coll. 94. Sir Simon d'Ewes Jour. That the Order and Uſage of this Houſe was, and is, that when any Bills or Meſſages are brought from the Lower Houſe, to be preferr'd to the 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 impriſon'd, or reſtrain'd, without Sentence, or Decree of the Houſe, unleſs it be for Treaſon, or Felony, or refuſing to give Surety of the Peace.

Giving the Lye to a Peer is a Breach of Priviledge.2 Nalſon 380.

Ever ſince the Conqueſt, the Arch-Biſhops, Hakewel 84. Vide Kelwey 184. Vide Lord Hollis's Letter. Vide Lord Hollis's Remains. Vid. contra Hunt's Argument for the Biſhops Right, &c. Vid. Grand Queſtion concerning Biſhops Right, per. totum. and Biſhops have no Title to have Voice and Place in Parliament, but only in reſpect of their Temporal Baronies; where they are preſent, quouſque perveniatur ad Diminutionem, &c.

When a Queſtion is had of the Attainder of any Peer, Hakewel 84. Vid. contra Hunt ut ſuprà per tot. Vid. Grand Queſtion concerning Biſhops Right, &c. per totum. Selden of Judicature &c. p. 150. or other, in Parliament, the Arch-Biſhops and Biſhops depart the Higher Houſe, and do make their Proxies: for by the Decrees of the Church, they may not be Judges of Life and Death.

11 Rich. 2. Divers Lords, and others, being appealed of Treaſon, and other Miſdemeanors, the Prelates abſented themſelves during the Trial, having firſt made Proteſtation, ſaving their Right to be preſent in Parliament Vid. there the Proteſtation of the Biſhops for ever. Id. 151. .

The Proteſtation, I think, intends, That they could not be preſent by reaſon of the Common Law, and by reaſon of an Ordinance made at the Council at Weſtminſter, in 21 Hen. 2. by which all Clergy-men were forbidden agitare Judicium Sanguinis, upon Pain to be deprived both of Dignities, and Orders. For ſurely, as I think, they might otherwiſe have been preſent, both by the Common Law, and by the Law of God.

All the Lords Spiritual and Temporal, Selden's Judicature &c. 39. 11 Rich. 2. claimed as their Liberty and Franchiſe, that the great Matters moved in this Parliament, and to be moved in other Parliaments in Time to come, touching the Peers of the Land, ought to be admeaſured, adjudged, and diſcuſſed by the Courſe of the Parliament, and not by the Civil Law, nor by the Law of the Land, uſed in the more baſe Courts of the Realm: which the King granted in full Parliament.

The Proceeding againſt a Peer in Parliament is not neceſſary.Id. 53.

It appears that the Lords cannot of themſelves judge a Common Perſon for an Offence,Id. 61. for he is no Peer, according to that of 4 E. 3. Numb. 26.

1 Rich. 2.Id. 123. The Lord Beauchamp was ſworn, and examined; and the Duke of Lancaſter being one of the Committee, was diligently examin'd before the reſt of the ſaid Committee, but not ſworn ad teſtificandum. Earls and Dukes are not ſworn.

In Judgments on Delinquents in Parliament, Id. 132. the Commons might accuſare, & petere Judicium, the King aſſentire, and the Lords only did judicare.

The King's Aſſent ought to be to Capital Judgments,Id. 141. Vid. id. 144 147, 148, 154, 158. and the Lords Temporal to be only Judges therein, and not the Lords Spiritual: but in Miſdemeanors, the Lords Spiritual and Temporal are equal Judges, and the King's Aſſent is not neceſſary, Id. 136. yet it ſeemeth to me, that the King's Aſſent is neceſſarily required in Capital Cauſes and Judgments.

If a Peer be committed to Priſon, the Gentleman 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 and Treaſon by his Peers upon an Indictment, for it is the Suit of the King.

When a Lord of Parliament is tried by his Peers, 1 Hen. 4.1. Id. 72. they ſhall not be ſworn to ſay their Verdict; but they ſhall give their Verdict upon their Honor, and are not charged but upon their Honors.

A Lord of Parliament ſhall have Knights upon his Trial in every Action.27 Hen. 8. f. 27.

A Lord of Parliament may be Outlawed for Murder. 27 Hen. 8. f. 17.

If a Lord of Parliament makes a Reſcous, 27 H. 8.27. a Capias ſhall be taken out againſt him, if the Sheriff return the Reſcous; otherwiſe it is in Caſe of Debt.

A Capias ad Satisfaciendum does not lye againſt a Lord of Parliament, 11 H. 4.15. 27 Hen. 8.27. for the Law preſumes that he has Aſſets.

An Attachment is not grantable by the Common Law,Dyer 316. Statute Law, Cuſtom, or Precedent againſt a Lord of Parliament: and the Lord Cromwel by Order in the Parliament-Chamber was diſcharged of ſuch Proceſs.

In a Praemunire againſt a Lord of Parliament, Arc. Parl. 98. he ought to appeear in his proper Perſon, and not by Attorny, unleſs he has a ſpecial Writ of Chancery.

CHAP. IV. Power of the Houſe of Lords.

A Peer of the Realm being Indicted of Treaſon, 4 Inſt. 23. or Felony, or Miſpriſion of Treaſon, may be Arraigned thereof in Parliament, a Lord Steward being appointed; and then the Lords Spiritual ſhall make a Procurator for them: and the Lords, as Peers of the Realm, during the Parliament, are Judges, whether the Offence be Treaſon, &c. that is ſuppoſed to be committed by any Peer of the Realm, and not the Juſtices.

Many notable Judgments by the Lords, Ibid. Vide Ruſh. Coll. paſſim. Vid. Nalſon. at the Proſecution of the Commons, and in later Times.

Error ſerra ſue in Parliament,Vid. Crompton, 18. b. & Parliament poet prendre Recognizance, Brook 137. Error. Error ſhall be ſued in Parliament, and the Parliament may take Recognizance.

If a Judgment be given in the King's Bench, 4 Inſt. 21. either upon a Writ of Error, or otherwiſe; the Party grieved may (upon a Petition of Right made to the King in Engliſh or in French, and his Anſwer thereto, Fiat Juſtitia) have a Writ of Error directed to the Chief Juſtice of the King's Bench, for removing of the Record in praeſens Parliamentum, &c.

When one ſueth in Parliament to Reverſe a Judgment in the King's Bench, Id. 22. he ſheweth in his Bill, which he exhibiteth to the Parliament, ſome Error, or Errors, whereupon he prayeth a Scire Facias.

The Proceeding upon the Writ of Error is only before the Lords in the 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 Cauſe that ſhall be brought before them.

Julij 12,2 Nalſon 381. 1641. An Order of the Lords for Relief of a Feme-Covert, and her Children, againſt a Husband refuſing to Cohabit.

The Sentence pronounced by the Lords upon Sir Giles Mompeſſon, Ruſhw. Col. 27, 28. and Sir Fancis Michel, for Projectors.

Upon Complaints and Accuſations of the Commons, Selden's Judicature &c 6, 7. the Lords may proceed in Judgment againſt the Delinquents of what Degree ſoever, and what Nature ſoever the Offence be. For where the Commons complain, the Lords do not aſſume to themſelves Trial at Common Law. Neither do the Lords at the Trial of a Common Impeachment by the Commons, decedere de June ſuo: for the Commons are then inſtead of a Jury; And the Parties Anſwer, and Examination of Witneſſes, are to be in their Preſence, or they to have Copies thereof: and the Judgment is not to be given but upon their Demand, which is inſtead of a Verdict; ſo the Lords do only judge, not try the Delinquent.

28 Hen. 6. Tho' the Lords refuſed to commit the Duke of Suffolk upon the Commons complaint of him of a common Fame of Treaſon; Id. 98. yet when they accuſed him of particular Treaſon, he was Committed, and brought Priſoner to his Anſwer. But in Caſes of Miſdemeanors it is otherwiſe; then the Party Accuſed, whether Lord, or Commoner, anſwers as a Freeman.

The Lord within his Place,Ibid. the Commoner at the Bar; and they are not committed till Judgment; unleſs upon the Anſwer of a Commoner, the Lords find Cauſe to commit him, till he find Sureties to attend, &c. leſt he ſhould fly. Prout Jo. Cavendiſh upon the Lord Chancellor's demand of Juſtice againſt him for his falſe Accuſation, was Committed after his Anſwer until he put in Bail, Anno 7 Rich. 2. and before Judgment.

In Caſes of Miſdemeanors only,Id. 105. the Party accuſed was never deny'd Counſel.

If the Commons do only complain,Id. 163. and do neither impeach the Party in Writing, nor by Word of Mouth in open Houſe, nor demand Trial to be in their Preſence: in theſe Caſes it is in the Election of the Lords, whether the Commons ſhall be preſent, or not.

In Complaints of Extortion, Id. 173. and Oppreſſion, the Lords awarded Satisfaction to the Parties wronged, which ſometime was certain, ſometime general; but alway ſecundùm, non ultra Legem.

It appeareth plainly by many Precedents,Id 176, 177. That all Judgments for Life and Death, are to be render'd by the Steward of England, or by the Steward of the King's Houſe: and this is the Reaſon, why at every Parliament the King makes a Lord Steward of his Houſe, tho' he hath none out of Parliament. And at ſuch Arraignment the Steward is to ſit in the Chancellor's Place: and all Judgments for Miſdemeanors by the Chancellor, or by him who ſupplies the Chancellor's Place.

In Caſe of Recovery of Damages,Id. 187. or Reſtitution, the Parties are to have their Remedy (the Parliament being ended) in the Chancery, and not in any other inferior Court at the Common Law. But the Lords in Parliament may direct how it ſhall be levied.

The Judges (who are but Aſſiſtants to the 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 againſt Enſign Henry Reynde, for ignominious Speeches uttered by him againſt the Lord Say and Seal, and for his Contempt of the High Court of Parliament, was thus: 1. That he never bear Arms hereafter, but be accounted unworthy to be a Soldier: 2. To be impriſoned during Pleaſure: 3. To ſtand under the Pillory (with Papers on his Head ſhewing his Offence) at Cheapſide, London, and at Banbury: 4. To be fined at 200 l. to the King: 5: To ask Forgiveneſs here of all the Lords of Parliament in general, and of the Lord Say and his Son, both here, and at Banbury.

The Court of Star-Chamber ordered by the Lords to put the ſaid Sentence in Execution,Id. 213. out of Time of Parliament.

CHAP. V. Houſe of Commons.

THE Houſe of Commons was originally,Sir R. Atkyns Argument, &c. p. 13. and from the firſt Conſtitution of the Nation, the Repreſentative of one of the Three Eſtates of the Realm, and a part of the Parliament.

It is affirmed by Mr. Lambard, Lambard's Archeion, 257, 258. That Burgeſſes were choſen to the Parliament before the Conqueſt.

The ancient Towns call'd Boroughs, Littleton, Sect. 164. are the moſt ancient Towns that are in England: for the Towns that now are Cities or Counties in old time were Boroughs; and call'd Boroughs, for that of ſuch old Towns came the Burgeſſes to the Parliaments.

Knights of the Shire to ſerve in Parliament, Sir Rob. Atkyns 18. and the paying Wages to them for their Service, has been Time out of Mind, and did not begin 49 Hen. 3. for that is within Time of Memory, in a Legal Senſe.

The Houſe of Commons, Id. 34. as a Member of the High Court of Parliament, have been as ancient as the Nation it ſelf, and may in the Senſe of Julius Caeſar, be accounted among the Aborigenes, and that they have had a perpetual Being (to ſpeak in the Language of the Law) a Tempore cujus Contraria memoria Hominum non existit, and that they are therefore capable by Law (together with the reſt of the Three Eſtates in Parliament) to preſcribe and claim a ſhare in all Parliamentary Powers and Priviledges; I do not mean ſeparately, but in conjunction with thoſe other Eſtates, which they could not otherwiſe legally have done, Petyt's Preface to the ancient Rights of the Commons, &c. p. 3. if their Original and Commencement could have been ſhewn.

During the Britiſh, Saxon, and Norman Governments, the Freemen (or Commons of England, as now call'd, and diſtinguiſh'd from the great Lords) were pars eſſentialis & conſtituens, and eſſential and conſtituent Part of the Wittena Gemot, Commune Concilium, Baronagium Angliae, or Parliament in thoſe Ages.

It is apparent, and paſt all Contradiction,Id. 12. That the Commons (in the Times of the Britons, Saxons, and Picts) were an eſſential Part of the Legiſlative Power, in making and ordaining Laws, by which themſelves and their Poſterity were to be govern'd, and that the Law was then the golden Metwand and Rule which meaſured out, and allowed the Prerogative of the Prince, and Liberty of the Subject (and when obſtructed, or deny'd to either, made the Kingdom deformed and leprous).

I may with good Reaſon and Warranty conclude,Id. 125. that our Anceſtors the Commons of England, the Knights, Gentlemen, Freeholders, Citizens, and Burgeſſes of a great and mighty Nation, were very far from being in former Times ſuch Vaſſals and Slaves, or ſo abject, poor, and inconſiderable, as the abſurd and malicious Ignorance and Falſities of late Writers have been pleaſed to make and repreſent them, eſpecially the Author of the Grand Freeholders Inqueſt, and Mr. James Howel, as if they were only Beaſts of Carriage and Burthen, ordain'd to be tax'd and talliated, and have their Lives, Eſtates, and Liberties given away, and diſpoſed of, without their own Aſſents.

The Book of the Clerk of the Houſe of Commons is a Record,4 Inſt. 23. as it is affirmed by Act of Parliament, 6 Hen. 8. c. 16.

If the Commons do only Accuſe by any way of Complaint whatſoever,Selden's Judicature &c. 14. and do not declare in Special againſt the Party accuſed, then the Suit is the King's, and the Party is to be Arraigned, or otherwiſe proceeded againſt by Commandment, Ex parte Domini Regis.

In the Lower Houſe ſit the Speaker, and the Knights, Citizens, Cromptona. b. 4 Inſt. 1. Burgeſſes, and Barons of the Cinque-Ports, who repreſent the Body of the whole Commonalty of England.

All Perſons, and Commonalties,St. 5 Rich. 2. c. 4. Raſt. 140. which ſhall be ſummon'd to Parliament, ſhall come, as has been uſed and accuſtom'd of ancient Time; and he that ſhall not come (having no reaſonable Excuſe) ſhall be amerced, and otherwiſe puniſh'd, as of ancient Time has been uſed.

CHAP. VI. Power of the Houſe of Commons.

THE Houſe of Commons is a Houſe of Information and Preſentment, Ruſh. Coll. 217. Vol. 1. but not a Houſe of Definitive Judgment.

1 Car. 1.Ruſhw. ib. 1625. Reſolved, That common Fame is a good Ground of Proceeding for this Houſe, either by Enquiry or Preſenting the Complaint (if the Houſe find cauſe) to the King or Lords.

26 Jan. 28 Hen 6. Selden's Judicature p 29. Vid. id. 38. The Commons required the Duke of Suffolk might be committed to Ward, for that the General Fame went of him, &c. The Lords, on Conſultation with the Juſtices, thought the ſame to be no good Cauſe of Commitment, unleſs ſome ſpecial Matters were objected againſt him.

It is certain, and not to be deny'd, Petyt's Miſcell. Pref. &c. p. 5. That in elder Time the People, or Free-men had a great Share in the Publick Council, or Government. For Dion Caſſius (or Xiphiline out of him) in the Life of Severus aſſures us, Apud hos (i.e. Britannos) Populus magnâ ex. Parte Principatum tenet.

It was not in the Power of all the Tenants in Capite in England, Id. 47, 48. tho' with the King's Conſent, to bind and oblige others, or to make, or alter a Law, ſine Aſſenſu Communitatis Regni, who had Votum conſultivum, & deciſivum, an Act of Authority and Juriſdiction, as well in aſſenting to Spiritual Laws as Temporal: as may appear for an Inſtance in their Declaration, or Proteſtation to Edward the Third in Parliament, which concludes thus, For they will not be obliged by any Statute or Ordinance made, without their Aſſent. Ruſh. Coll. 690.

A Member of Parliament may charge any great Officer of State with any particular Offence.

If any Lord of Parliament Spiritual or Temporal,4 Inſt. 24. have committed any Oppreſſion, Bribery, Extortion, or the like; the Houſe of Commons, being the general Inquiſitors of the Realm (coming out of all Parts thereof) may examine the ſame; and if they find, by the Vote of the Houſe, the Charge to be true, then they tranſmit the ſame to the Lords, with the Witneſſes and the Proofs.

1 Jac. 1.Petyt's Miſcel. Parl 64 1603. The Biſhop of Briſtol publiſhing a Book, tending to make diviſion and ſtrife, wrong and diſhonour both to the lower Houſe and the Lords themſelves, was complain'd of by the Commons to the Lords: and he made his Recantation: 1. That he had erred. 2. That he was ſorry for it. 3. If it were to do again, he would not do it. 4. But proteſted, it was done of Ignorance, and not of Malice.

7 Jac. 1. 1609.Vide Ruſh. Hiſt. Coll. 4 Car. Dr. Cowel writ a Book perniciouſly, aſſerting certain Heads to the Deſtruction of Parliaments, and the Fundamental Laws and Government of the Kingdom, and was complained of by the Commons to the Lords, who reſolved to Cenſure his Errors and Boldneſs. Ibid. And afterwards the Book was burnt by Proclamation.

Vide Dr. Manwaring's Caſe, Ruſh. Coll. & Nalſon. Vide Petyt's Miſcell. Part. 74.

Vide Dr. Montague's Caſe in Ruſhworth, Nalſon & Petyt's Miſcell. Part. 82.

4 Junij, 19 Jac. 1.Petyt's Miſcell. Parl. 120. The Commons Houſe of Parliament this day adjudged Randolph Davenport Eſq for his Offence in Miſ-informing the Houſe, in a Cauſe wherein he was produced as a Witneſs, to be committed Priſoner to the Tower for the ſpace of one whole Month, and then to be diſcharged, paying his Fees.

19 Jac. 1.Id. 160. Ordered by the Commons Houſe of Parliament, That the Serjeant at Arms attending this Houſe ſhall attach the Body of John Churchill, one of the Deputy-Regiſters of the Chancery, and him ſhall take into his Cuſtody, and bring him to this Houſe on Monday morning next at Eight of the Clock: and the ſaid Serjeant is in the mean time to keep him ſo, as none be ſuffer'd to ſpeak with him, but in the hearing of the Serjeant.

Vide ad hoc Ruſh. Collect. paſſim. Vide Nalſon's 2 Volumes. Vide Selden's Judicature, &c. Vide Sir Robert Atkyns's Argument, &c. Vide Petyt's Preface to Miſcell. Parliamentaria.

Thomas Long gave the Mayor of Weſtbury four pounds to be elected Burgeſs, 4 Inſt. 23. Vide Sir d'Ewes Jour. 182. who thereupon was elected. This Matter was examin'd, and adjudged in the Houſe of Commons, ſecundùm Legem & Conſuetudinem Parliamenti, and the Mayor fined and impriſoned, and long removed; for this corrupt Dealing was to poiſon the very Fountain it ſelf.

Arthur Hall a Member of the Houſe of Commons, Ibid. Vide Sir Simon d'Ewes Jour. 212. for publiſhing and diſcovering the Conferences of the Houſe, and writing a Book to the diſhonour of the Houſe, was, upon due Examination, ſecundùm Legem & Conſuetudinem Parliamenti, adjudged by the Houſe of Commons to be committed to the Tower for ſix Months, fined at Five hundred Marks, and expelled the Houſe.

23 Apr. 1 Mariae, Ibid. Call'd Monington by Scobel 113. Muncton ſtruck William Johnſon a Burgeſs of B. return'd into the Chancery of Record: for which, upon due Examination in the Houſe of Commons, it was reſolved, That ſecundum Legem & Conſuetudinem Parliamenti, every man muſt take Notice of all the Members of the Houſe returned of Record, at his peril: And the Houſe adjudged Muncton to the Tower.

Injuries offer'd to the Members,Scobel 113. and their Servants, during the Seſſion, have been uſually puniſh'd by the Houſe, upon Complaint.

29 Febr. 1575.Ibid. Vide Sir Simon d'Ewes Jour. 251. Col. 2. One Williams, for aſſaulting a Burgeſs of this Houſe, was upon complaint ſent for by the Serjeant, and brought to the Bar, and committed to the Serjeant's Ward.

28 Nov. 1601.Ibid. Complaint being made by Mr. Fleetwood a Member of the Houſe, that one Holland a Scrivener, and one Brooks his Servant, had evil entreated and beaten the Servant of the ſaid Mr. Fleetwood in his Preſence: they were both ſent for by the Serjeant, and brought to the Bar, and for the ſaid Offence committed for five days to the Serjeant.

12 Febr. 18.Id. 114. Jac. 1. Mr. Lovel a Member of the Houſe, informed, That one Darryel threatned his Perſon (that for a Speech ſpoken by him in the Houſe, he ſhou'd be ſent to the Tower, during the Parliament, or preſently after) Darryel was ſent for by the Serjeant to anſwer it to the Houſe, and upon Teſtimony of it, he was committed to the Serjeant till Thurſday following, and then to acknowledge his Fault, or to be committed to the Tower.

16 Junij, 1604.Ibid. Complaint being made of one Thomas Rogers a Currier, dwelling in Coleman-ſtreet, for abuſing Sir John Savil in ſlanderous and unſeemly Terms (upon his Proceedings at a Committee in the Bill touching Tanners, &c.) he was ſent for by the Serjeant at Arms to the Bar, to Anſwer his Offence.

Sir William Aſton Sheriff of London, Ruſh. Coll. 656. Vid. Petyt's Miſcell. Parl. 108. Acton's Caſe. being Examined before the Committee, concerning ſome Matters about the Cuſtoms, and not giving that clear Anſwer which he ought, and as the Houſe conceived he might have done, was therefore committed to the Tower of London. And a Queſtion was made in the Houſe, at the Time, Whether the Houſe had at any Time before committed a Sheriff of London to Priſon. To which Mr. Selden made Anſwer, That he could not call to mind a Precedent of ſending one Sheriff of London to Priſon: but he well remembred a Precedent of ſending both the Sheriffs of London to the Tower, and inſtanced the Caſe.

One Truſſel being in Execution in one of the Compters in London, Townſ. Coll. 20. Vide Sir Simon d'Ewes Jour. 438. Col. 1. was Order'd to be brought before the Committee with his Keeper, without Danger of an Eſcape in the Execution.

4 Novemb. 1640.Scobel 16. Upon a Report from the Committee for Priviledges, That ſeveral Indentures were returned for Burgeſſes for the Borough of Boſſinny in the County of Cornwal, the one by the Mayor of the Town, the other promiſcuouſly; The Committee were of Opinion, upon view of the bare Indenture, That Sir Charles Harbord (who was return'd by the Mayor) was well return'd: but the Houſe declar'd he ſhou'd not ſit, till the Election were decided.

44 Eliz. 1601.Townſ. Coll. 297. The Courſe hath been, if the Houſe hath been deſirous to ſee any Record, the Speaker ſhou'd ſend a Warrant to the Lord Keeper to grant a Certiorari to have the Record brought into the Houſe.

Decemb. 1641. Ordered,2 Nalſon 753. That Mr. Speaker do write his Letters to the Mayor of Berwick, enjoyning him to require ſuch Papiſts, and ſuſpected Perſons as reſide there, or make their conſtant Repair thither, forthwith to depart the Town: and to tender the Oaths of Supremacy and Allegiance to ſuch as ſhall refuſe; and to proceed againſt them according to Law; and to require him that a Guard be kept at the ſeveral Gates, and that the Arms of that Place be in readineſs. The like to the Mayor of Newcaſtle, and of Hull.

The Commons upon Impriſonment of their Members,Ruſh. Coll. 358. and the Offence taken by the King, reſolved to proceed in no other Buſineſs, till they were righted in their Liberties.

Dec. 1641.2 Nalſon 732. Mr. Long a Juſtice of the Peace ſent to the Tower, for ſetting a Guard, without Conſent of the Parliament.

A Knight, 4 Inſt. 12. Citizen, or Burgeſs of the Houſe of Commons cannot by any Means make a Proxy: becauſe he is elected, and truſted by Multitudes of People.

If the Commons accuſe a Commoner of Miſdemeanors;Selden's Jud. 101. in ſuch a State of Liberty or Reſtraint as he is in, when the Commons complain of him, in ſuch he is to anſwer.

Sir Francis Michel, Seld. Jud. Ibid. and Sir John Bennet, were both committed by the Commons, before their Complaint to the Lords, and ſo they anſwered as Priſoners: but that in a ſort may be call'd Judicium parium ſuorum.

If the Commons impeach any man, they are in loco proprio, Id. 124. and there no Jury ought to be: only Witneſſes are to be examined in their Preſence, or they to have Copies thereof: and the Judgment not to be given until the Commons demand it.

The Preſence of the Commons is neceſſary at the Parties Anſwer,Id. 158. and Judgment in Caſes Capital. Now one Reaſon for the King's Aſſent, and the Commons Preſence in ſuch Judgments, may be this: Both King and People are to be ſatisfied for the Death of the Subject; therefore all Trials for Life and Death are publick in the full Aſſembly of the Court; and how can it be ſaid in full Parliament, when the Commons, one of the States, are abſent?

Tho' the Commons are not preſent when the Lords do conſider of the Delinquents Anſwer,Id. 159. and the Proofs, and do determine of their Judgment: yet at their Return to their own Aſſembly, they conſider among themſelves, if the Proceedings were legal, and may come again, and ſhew it, and require a 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 deny'd, and ſo departed: but two of the Commons remained, and heard the Examinations, and told the Lords, That the ſaid Richard had related otherwiſe to the Commons the day before, which the ſaid Richard deny'd. Then all the Commons came, and juſtify'd it again, and thereupon the ſaid Richard Love confeſſed it, and on their Demands was committed.

In the 10 Rich. 2.Ibid. when the Commons had Impeached the Lord Chancellor, they were preſent at his Anſwer, and ſo often reply'd, and enforced his Oath againſt him, and required him to be committed, and ſo he was before Judgment.

If the Commons do only complain,Ibid. and do neither impeach the Party in Writing, nor by Word of Mouth in open Houſe, nor demand Trial to be in their Preſence: in theſe Caſes it is in the Election of the Lords, Whether the Commons ſhall be preſent, or not.

Iſſuing of Quo Warranto's out of the Court of King's Bench, Nalſon 588. Court of Exchequer, or any Court, againſt Boroughs, that anciently or recently ſent Burgeſſes to Parliament, to ſhew cauſe, why they ſent Burgeſſes of Parliament, and all the Proceedings thereupon, are Coram non Judice, illegal and void. And the Right of ſending Burgeſſes to the Parliament, is queſtionable in Parliament only; and the Occaſioners, Procurers, and Judges in ſuch Quo Warranto's and Proceedings, are puniſhable, as in Parliament ſhall be thought conſonant to Law and Juſtice.

Where the Articles againſt the Delinquents are ex Parte Domini Regis, Selden's Judicature 118. there the Commons cannot reply, nor demand Judgment: for the Suit is the King's, and not theirs.

In Trewinnard's Caſe,Id. 39. Dyer 60, & 61. The Priviledge of the Commons is termed the Priviledge of Parliament; and the Judgment given in that Caſe by the Houſe of Commons, is there ſaid to be, The Judgment of the moſt High, Court of Parliament. Sir Robert Atkyns's Argument 35. which proves, they are not without a Judicial Power.

The King cannot take notice of what is done in the Commons Houſe, Id. 53. or deliver'd to them, but by the Houſe it ſelf: and that is one of the Laws and Cuſtoms of Parliament.

In 31. Hen. 6.Id. 55. when the Commons requeſted the King and Lords to reſtore their Speaker to them, &c. The Judges being demanded of their Counſel therein; after mature deliberation, they anſwer'd, It was not their part to judge of the Parliament, which may judge of the Law.

The Reaſon,Ibid. to judge of the Law, ſignifies that they can judge whether a Law be good, or not; in order to approve it, and to enact it, or to repeal a Law.

In 1621.Ibid. the Houſe of Commons made a Proteſtation againſt all Impeachments, other than in the Houſe, for any thing there ſaid or done.

It was ſaid by Mr. Juſtice Crook, Id. 58. Ruſh. Coll. Vol. 1. f. 663. That regularly a Parliament-man cannot be compelled, out of Parliament to anſwer Things done in Parliament in a Parliamentary Courſe. If it be done in a Parliamentary Courſe, what Occaſion can there be to anſwer for it? But who ſhall judge what is a Parliamentary Courſe, but a Parliament? not Judges of the Common Law; for the Parliamentary Courſe differs from the Rules of the Common Law.

27 Eliz. 1584.Sir Simon d'Ewes Jour. 347. Col. 2. Ordered, That the Serjeant of this Houſe do forthwith go to the Common Pleas Bar, and charge the Recorder, then pleading there, to make his preſent Repair unto this Houſe for his Attendance.

Eodem Anno, Id. 367. Col. 1. John Bland a Currier, for making diſhonourable Reflections on the Houſe of Commons, brought to the Bar, and pardoned upon his Submiſſion, paying twenty ſhillings Fee to the Serjeant, and taking the Oath of Supremacy.

Eodem An. Id. 368. Col. 1. A Warrant for a Writ of Priviledge awarded for ſetting at Liberty John Pepler, Servant to Sir Philip Sidney a Member of this Houſe, now Priſoner for Debt in the Compter in London.

28, 29 Eliz. 1586.Id. 397. Col. 1. Reſolved by the whole Body of the Houſe, That the diſcuſſing and adjudging of Differences about Elections, only belonged to the ſaid Houſe: That tho' the Lord Chancellor and Judges were competent Judges in their proper Courts, yet they were not in Parliament.

31 Eliz. 1588.Id 451. Col. 1. Thomas Drury committed to the Serjeant's Cuſtody, brought to the Bar, and diſcharged, paying his Fees; for ſpeaking diſhonourably of the Proceedings of the Houſe.

23 Eliz. 1580.Id. 283. Col. 1. A Member of the Houſe ſtood Indicted of Felony. Adjudged, That he ought to remain of the Houſe till he were Convicted: for it may be any man's caſe, who is guiltleſs, to be Accuſed, and thereupon Indicted of Felony, or a like Crime.

18 Eliz. 1575.Petyt's Miſcel. Parl. 16, 18 Edward Smalley was upon the Queſtion adjudged by the Houſe to be Guilty of Contempt, and abuſing the Houſe by fraudulent Practiſe of procuring himſelf to be Arreſted upon Execution, of his own Aſſent and Intention, to be diſcharged as well of his Impriſonment, as of the ſaid Execution. And Matthew Kirtleton adjudged Guilty of Confederacy with the ſaid Smalley. Whereupon they were both ordered to be committed to the Tower. And the ſaid Smalley to remain there for a Month, and after, till he gave ſufficient. Aſſurance for payment of a hundred pounds to the Creditor, and forty ſhillings for the Serjeant's Fees.

4 Ed. 6. Criketoft, Id. 96. for the confederating in the Eſcape of one Floud, committed to the Tower, and afterwards diſcharged paying his Fees.

1 Jac. 1. Bryan Taſh, Id. 98. a Yeoman of his Majeſties Guard, for keeping the Door of the Lobby of the 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 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 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 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 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, 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 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. 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, 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 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 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 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 〈1 page duplicate〉〈1 page duplicate〉 (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, 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 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 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 made in the full County, of the Day and Place of the Parliament; and that all Men ſhall attend for the Election of the Knights for the ſame County for the Parliament.

Where the Parliament Writ ſpeaks de qualibet Civitate Comitatûs illius, Arc Parl. 22 Vid. Cromp. 3. this intended where the City is not a County in it ſelf. If it be, the Writ ſhall be directed to them, &c. as it is to Sheriffs of other Countries.

28 Eliz. 1586. Reſolved, That the Houſe of Commons are the only competent Judges concerning Elections, Sir Simon d'Ewes Jour. 396, 397. which are duly made, which not.

18 Jac. 1.Petyt's Miſcell. Parl. 111. The Mayor of Winchelſey, for miſ-behaving himſelf at the Election of Parliament-men for their Town, and making a falſe Return, ordered to be committed to the Serjeant, and to make a Submiſſion at the Bar, and an Acknowledgment in the Town, before the new Election.

20 Jac. 1.Id. 112. The Mayor of Arundel, for miſ-behaving himſelf in the Election, by putting the Town to a great deal of Charges, not giving a due and general Warning, and packing a number of Electors; ordered to be ſent for, and adjudged to pay the Charge to be ſet down by three of the Members.

Likewiſe to every City and Town,Arc. Parl. 4. Smith's 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, at the leaſt Forty days before the Parliament begin.

The third Eſtate is the Commons of the Realm,4 Inſt. 1. Crompton's Juriſ. 2 b. whereof there be Knights of the Shires, or Counties; Citizens of Cities, and Burgeſſes of Boroughs. All which are reſpectively elected by the Shires or Counties, Cities and Boroughs, by Force of the King's Writ, ex debito Juſtitiae, and none of them ought to be omitted.

Theſe Repreſent all the Commons of the whole Realm,Ibid. are truſted for them, and are in Number at this Time 493. Now above 500.

Whoſoever is not a Lord of Parliament, Id. 2. and of the Lord's Houſe, is of the Houſe of Commons, either in Perſon, or by Repreſentation, partly coagmentativè, and partly repreſentativè.

Every Member of the Houſe being a Counſeller,Id. 3. ſhou'd have three Properties; Firſt, to be without Malice or Envy. Secondly, to be conſtant and inflexible. Thirdly, to be of ripe and perfect memory, as appeareth in a Parliament Roll, Rot. Parl. 3 H. 6. n. 3.

The Knights of the Shire are choſen by all the Gentlemen and Teoman (i. e. Freeholders) of the Shire, Arc. Parl. 5. Smyth's 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 Judgment of an Election, and denying the Poll, being requir'd; and Alderman Henlow for adviſing and abetting the ſame; adjudged to ſtand committed to the Serjeant during Pleaſure, to acknowledge their Offences at the Bar, to pay all due Fees, to defray the Charge of Witneſſes, to be aſſeſſed by four of the Committee, to acknowledge their Faults on their Knees at the Bar, and read a Submiſſion.

After the Precept of the Sheriff directed to the City or Berough for making of Election;Id. 49. there ought, ſecundùm Legem & Conſuetudinem Parliamenti, to be given a convenient Time for the Day of Election, and ſufficient Warning given to the Citizens and Burgeſſes that have Voices, that they may be preſent: otherwiſe the Election is not good, unleſs ſuch as have Voices do take Notice of themſelves, and be preſent at the Election.Hobart 15. Dungannon's Caſe in Ireland.

When there is a Corporation made by Charter; and by the ſame an Ordinance, that the Provoſt and Burgeſſes only ſhall chooſe, &c. The Law ſhall veſt this Priviledge in the whole Corporation in point of Intereſt, tho' the Execution of it be committed to ſome Perſons, Members of the ſame Corporation.

The King cannot grant a Charter of Exemption to any man,4 Inſt. 49. to be freed from Election of Knight, Citizen, or Burgeſs of Parliament (as he may do of ſome inferior Office or Places) becauſe the Election of them ought to be free, and his Attendance is for the Service of the whole Realm, and for the Benefit of the King and his People; and the whole 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 Place in this Houſe, nor any other to be, during ſuch Time of Service, Execution, or Sickneſs, elected.

CHAP. IX. Who may be Electors.

THE Chooſers of the Knights for the Parliament ought to be only of ſuch Perſons as are reſiant and dwelling within the ſaid Shire.St. 1 H. 50. 1. 8 H. 6. c. 7. 10 H. 6. c. 2.

No Perſon ſhall be a Chooſer of the Knights for the Parliament, St. 8 H. 6. c. 7. 33 H 8. c. 1. in Ireland. except he hath Freehold Lands or Tenements within the ſame County, to the value of Forty ſhillings per Annum at the leaſt, above all Charges.

The Sheriff hath Power given him by the ſaid Statute to examine upon Oath every ſuch Chooſer,St. 8 H. 6. c. 7. how much he may expend by the year,Crompt. Juriſ. 3. if he doubt the value of it.

In many Caſes Multitudes are bound by Acts of Parliament, 4 Inſt. 4 5. which are not Parties to the Elections of Knights, Citizens, and Burgeſſes: as all they that have no Freehold, or have Freehold in ancient Demeſne, and all Women having Freehold, or no Freehold, and Men within the Age of One and twenty years, &c.

Every Inhabitant chooſing or electing in any other manner (than is preſcribed by the Statute) to forfeit an hundred ſhillings,St. 33 H 8. c. 1. Ireland half to the King, and half to him that will ſue for it.

If any man keeps a Houſhold in one County, Arc. Parl. 25. and remains in Service with another Family in another County, yet he may be at the chooſing of Knights of the Shire where he keeps his Family;Crompton's Juriſ. 3. b. for it ſhall be ſaid in Law a Dwelling in either of thoſe Counties. St. 23 H. 6. c. 15. Vid. Cromptons Jur. 3. b. 4 a.

If the Mayor and Bayliffs (or other Officer, where no Mayor is) ſhall return other than thoſe which be choſen by the Citizens and Burgeſſes of the Cities or Boroughs where ſuch Elections be, ſhall incur and forfeit to the King Forty pounds; and moreover, ſhall forfeit to every perſon hereafter choſen Citizen or Burgeſs to come to Parliament, and not by the ſame Mayor or Bayliff, &c. return'd; or to any other Perſon that will ſue for it, Forty pounds.

CHAP. X. Who may be Elected.

5 Eliz. c. 1. NO Knight, Citizen, 4 Inſt. 48. Sir Simon d'Ewes Jour. 39, 40. or Burgeſs can ſit in Parliament, before he hath taken the Oath of Supremacy, and ſince the 7 Jac. 1. the Oath of Allegiance.

Becauſe the words of the Writ for Election of Knights, 4 Inſt. 10. &c. were duos Milites gladiis cinctos, &c. it required an Act of Parliament, that notable Eſquires might be eligible.

Therefore the Statute ſays,St. 23 H. 6. c. 15. The Knights of the Shires for the Parliament muſt be notable Knights, or ſuch Eſquires, or Gentlemen, born of the ſame County, as be able to be Knights.

Any man may be choſen Knight, St. 18 Ed. 4. c. 2. in Ireland. Citizen, or Burgeſs, tho' he be not dwelling within the ſame.

Every Knight, St. 33 H. 8. c. 1. in Ireland. Citizen, and Burgeſs ſhall be reſiant and dwelling within the Counties, Cities, and Towns. Every Knight, Citizen, or Burgeſs taking it upon him, and not choſen (in the manner preſcribed by the Act of Parliament) to forfeit an hundred pounds.

Si home n'eſteant Inhabitant, Moor fo. 551 n. 741. ne free del un Borough, poit Eſlier, s'il voit ſeruer à lour Election, ou nemy, pur le Borough.

If a man be not an Inhabitant, nor free of a Borough, he may chooſe if he will ſerve at their Election, or not, for the Borough.

By the Statute none ought to be choſen a Burgeſs of a Town, Ruſh. Coll. Vol. 1. 689. in which he doth not inhabit; but the uſage of Parliament is contrary. But if Information be brought upon the ſaid Statute againſt ſuch a Burgeſs, I think that the Statute is a good Warrant for us to give Judgment againſt him, by Whitlock.

The King cannot grant a Charter of Exemption to any Man to be freed from Election of Knight, 4 Inſt. 49. Citizen, or Burgeſs of the Parliament.

A Perſon Outlawed in a Perſonal Cauſe may be a Burgeſs. Townſ. Coll. 63, 64. Vide John Smiths Ca. Sir Simon d'Ewes Jour. 48. Col. 2. 480. Col. 1. Vide Sir Simon d'Ewes Jour. 481. Col. 2.

If Exception be taken to ſuch an Election, and an Outlawry alledged to diſinable him, the Stat. 23 Hen. 6. c. 15. will diſinable moſt of this Houſe, for they ought to be Burgeſſes reſident.

Tho' the Common Law doth diſinable the Party,Sir Simon d'Ewes Journal 482. Col. 1 yet the Priviledge of the Houſe being urged, that prevaileth over the Law.

A man Attainted,Sir Simon d'Ewes Jour. 482. Col. 1. Outlawed, or Excommunicated, or not lawfully elected, if he be returned, out of all doubt is a lawful Burgeſs.

A Knight Banneret, 4 Inſt 46. being no Lord of Parliament, is eligible to be Knight, Citizen, or Burgeſs of the Houſe of Commons, being under the Degree of a Baron, who is the loweſt Degree of the Lord's Houſe.

An Earl's Son may be a Member of the Houſe of Commons. Sir Simon d'Ewes Journal, 244. Col. 2.

One under the Age of One and twenty years is not eligible.4 Inſt. 47. Neither can any Lord of Parliament ſit there till he be full One and and twenty years.

An Alien cannot be elected of the Parliament, Ibid. becauſe he is not the King's Liege Subject: and ſo it is, albeit he be made Denizon by Letters Patents, &c. But if an Alien be naturaliz'd by Parliament, then he is eligible to this, or any other Place of Judicature.

No Alien denizated ought to ſit here,Petyt's Miſcel. Parl. 175. per Sir Edward Coke.

Reſolved upon the Queſtion,Ibid. That the Election of Mr. Walter Steward, being no natural born Subject, is void, and a Warrant to go for a new Writ.

None of the Judges of the Kings Bench, or Common Pleas, 4 Inſt. 47. or Barons of the Exchequer, that have Judicial Places, can be choſen Knight, Citizen, or Burgeſs of Parliament, as it is now holden, becauſe they are Aſſiſtants in the Lord's Houſe. Yet read Parl Roll 31 H. 6.

But any that have Judicial Places in other Courts Eccleſiaſtical or Civil, being no Lords of Parliament, Ibid. are eligible.

None of the Clergy, Moor fo. 783. n. 1083. 4 Inſt. 47. tho' he be of the loweſt Order, is eligible to be Knight, Citizen, or Burgeſs of Parliament, becauſe they are of another Body, viz. of the Convocation.

The Clergy of the Convocation-Houſe are no Part or Member of the Parliament. Hakewel 59. Vide Fox's Book of Martyrs f 1639.

A man Attainted of Treaſon or Felony, 4 Inſt 48. &c. is not eligible. For he ought to be magìs idoneus, diſcretus, & ſufficiens.

Mayors and Bayliffs of Towns Corporate are eligible.4 Inſt. 48. Vide contra Brook Abridg tit. Parl. 7.

At a Parliament holden 38 H. 8. it was admitted and accepted, That if a Burgeſs of Parliament be made a Mayor of a Town, Crompt. 16. or have Judicial Juriſdiction, or another is ſick: that theſe are Cauſes ſufficient to chooſe others.

Any of the Profeſſion of the Common Law, 4 Inſt. 48. and which is in Practiſe of the ſame, is eligible.

By ſpecial Order of the Houſe of Commons the Attorny General is not eligible to be a Member of the Houſe of Commons. Ibid.

Egerton Solicitor la Roign fuit command d'Attender en l'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 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 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, 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) we know, in Law, that a man cannot make an Indenture to himſelf; no more can he here, between himſelf and the County; for there are required two Perſons. Yet Sir Edward Hobby ſaid, That the Houſe might well receive him, and vouched a Precedent, when the Bayliffs of Southwark returned themſelves Burgeſſes, and were received.

The Fee for the Knight of any County is,4 Inſt 46. four ſhillings per diem, and every Citizen or Burgeſs is to have two ſhillings per diem.

Where one Perſon is choſen and returned to ſerve in ſeveral Places;Scobel 18. Vide Sir S. d'Ewes Jour. paſſim. it is in his Election to make his Choice in the Houſe in his own Perſon, for what Place he will ſerve, and wave the other Election, ſo as a Writ may iſſue for a new Election, that the number may be full.

CHAP. XI. Returns of Sheriffs, &c. And Amendments of Returns.

COncerning the Puniſhment of Sheriffs for their Negligence in returning of Writs, 5 R. 2. Stat. 2. c. 4. or for leaving out of their Returns any City or Borough, which ought to ſend Citizens and Burgeſſes. See the Stat.

Every Sheriff, St. 8 H. 6. c. 7. 23 H. 6. c. 15. Vid. Cromton's Juriſ. 3. Hakewel 48. who doth not make true Return of Elections of Knights, Citizens, and Burgeſſes, to come to Parliament, ſhall forfeit an hundred pounds to the King, and an hundred pounds to the Party injured; and be impriſon'd for a Year without Bail or Mainprize. And every Mayor or Magiſtrate of a Town ſo oftending, ſhall pay Forty pounds to the King, and Forty pounds to the Party. This Action to be within Three months after the Parliament commenced, or by any other man who will.

If he ſo do not,Hakewel 49. Vid. Crompton's Juriſ. 3. b. and proſecute his Suit with Effect and without Fraud; any other man who will, may have the ſaid Suit for the ſaid hundred pounds, as the Knight had, and Coſts of Suit alſo ſhall be awarded to the ſaid Knight, or any other who will ſue in his behalf.

The Sheriff ſhall make a good Return of his Writ, Hakew. 51. and of every Return of the Mayor and Bayliff, or Bayliffs, where no Mayor is, to him made.

The Burgeſſes of Leskard in Cornwal being elected,Townſ. Coll. 63. the Town refuſed to deliver up their Indenture to the Sheriff; but the Party elected made his Indenture, and deliver'd it to the Clerk of the Crown, who filed it with the reſt of the Indentures returned by the Sheriff, the Sheriff having endorſed it upon his Writ: but this Indenture was never executed by the Sheriff, nor returned: and yet this Return was held by the Committees to be good.

Jan. 1641. Ordered, 2 Nalſon 870. That the High-Sheriff of the County of Suſſex, who has return'd two Indentures for the Town of Arundel, ſhall be ſummon'd to appear here at the Bar, to amend his Return.

35 Eliz. 1592. Sir Simon d'Ewes Jour. 490. Col. 2. It was ſaid by the Speaker, No Return can be amended in this Houſe: For the Writ and the Return are in Chancery, and muſt be amended there.

Every Sheriff, or other Officer, St. 33 H. 8. c. 1. in Ireland. returning any Knight, Citizen, or Burgeſs choſen in any other manner (than is preſcribed in the Statute) to forfeit an hundred pounds.

If one be duly elected Knight, 4 Inſt. 49. It cites in the Margin Rot. Parl. 5 H. 4. n. 38. Citizen, or Burgeſs, and the Sheriff return another; the Return muſt be reformed and amended by the Sheriff, and he that is duly elected, muſt be inſerted: for the Election in theſe Caſes is the Foundation, and not the Return.

18 Jac. 1.Scobel 115. The Sheriff of Leiceſterſhire having returned Sir Thomas Beaumont; upon Report from the Committee for Elections that Sir George Haſtings was duly choſen; the Sheriff was ordered to return Sir George Haſtings to the Clerk of the Crown, and he to accept it, and file it.

21 Jac. 1.Ibid. Upon Report from the Committee of Priviledges, That in the Election of Mr. John Maynard for Chippingham, John Maynard was choſen, but by a Miſtake Charles was afterward written in ſtead of John: It was Reſolved, The Return ſhou'd be amended, without a new Writ, and that the Bayliff ſhou'd do it, and not the Clerk of the Crown, and that it ſhou'd be ſent down to the Bayliff in the Country, and he to Return John Maynard Eſq the firſt Burgeſs.

1 Febr. 1640. It being Reſolved,Ibid. That the Election of Mr. Erle for one of the Burgeſſes of Wareham, is a good Election: Ordered, That the Officer, who was the Officer when the Return was made, or his Deputy, or the Electors, ſhou'd amend the Return. But the next day it was Ordered, That Edward Harbin, the late Mayor of Wareham's Deputy, ſhou'd come to the Bar of the Houſe, and amend the Return.

20 Febr. 1640.Id. 116. The Bayliff of Midhurſt in Suſſex came to the Bar (being ſent for by Order of the Houſe) and amended one of the Indentures of Return of Burgeſſes for that Town, and the other was taken off the File.

If a Sheriff ſhall return one for a Knight of the Shire, Sir Simon d'Ewes Journ. 283. Col. 2. who was unduly, or not at all elected; yet he that is ſo return'd, remains a Member of the Houſe till his Election be declared void.

CHAP. XII. Election of the Speaker.

THE Speaker is he that doth prefer and commend the Bills exhibited into the Parliament, Arc. Parl. 3. Smyth's 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 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 the weighty Affairs they are come about, their firſt Work is to appoint a Speaker; and re-commends to the Houſe ſome Perſon of Fitneſs and Ability for that Service and Dignity, which uſually hath been one of the long Robe.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CHAP. XIII. Buſineſs of the Speaker.

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

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

The Speaker's Office is,Modus tenend. Parl. 37. Smyth's 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 in Caſe of Death of any Member, or of double Returns, where the Party makes his Choice openly in the Houſe, during that Seſſion.

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

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

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

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

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

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

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

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

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

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

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

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

Eodem, Id. 1137. 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 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 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 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: 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 of the ſame, did thereupon ſeverally anſwer to their Names, and departed out of the Houſe, as they were called.

31 Eliz. 1588.Sir Simon d'Ewes Jour. 432. Col. 2. By Conſent of the Houſe (upon the motion of Sir Edward Hobby) admonition was given by Mr. Speaker, That Speeches uſed in this Houſe by the Members of the ſame, be not any of them made or uſed as Table talk, or in any wiſe delivered in Notes of writing to any perſon or perſons whatſoever, not being Members of this Houſe, for that they are the Common-Councel of the Realm.

CHAP. XV. Orders of the Houſe.

2 Maij 1610.Scobel 32. A Member ſpeaking, and his Speech, ſeeming impertinent, and there being much hiſſing and ſpitting, it was conceived for a Rule, That Mr. Speaker may ſtay impertinent Speeches.

18 Maij 1604.Ibid. It was Reſolved, That eight ingroſſed Bills ſhould be read the next day, half an hour after eight. The next day about that Time, a Member entring into a long Diſcourſe, De merâ Fide, & ſolâ Fide, &c. was interrupted; and the Queſtion offered, Whether he ſhou'd go on, in reſpect of the Order. But it was agreed for a Rule, That if any man ſpeak not to the Matter in Queſtion, the Speaker is to moderate.

April 1604.Idem 31. Vid. Townſ. Coll. 276. He that digreſſeth from the Matter, to fall upon the Perſon, ought to be ſuppreſſed by the Speaker.

17 April 1604.Ibid. If any ſuperfluous Motion or tedious Speech be offer'd in the Houſe, the Party is to be directed, and order'd by the Speaker.

No reviling or nipping words muſt be uſed, Smith's 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 Speech tending to another Buſineſs: but it was anſwer'd, That there was no Precedent for that Speech to be uſed, before the other Motion, which was made before, had received an Anſwer, and an End. And the Houſe did accordingly determine the firſt Motion in the firſt Place.

4 Dec. Ordered,Scobel 22. That till the Buſineſs in Agitation be ended, no new Motion of any new Matter ſhall be made without leave of the Houſe.

If the Matter moved do receive a Debate pro & contra, Ibid. in that Debate none may ſpeak more than once to the Matter: and after ſome Time ſpent in that Debate, the Speaker collecting the Senſe of the Houſe upon the Debate, is to reduce the ſame into a Queſtion, which he is to propound, to the end the Houſe in their Debate afterward may be kept to the Matter of the Queſtion, if the ſame be approved by the Houſe to contain the Subſtance of the former Debate.

After ſuch Queſtion is propounded,Ibid. any Member may offer his Reaſons againſt that Queſtion in whole, or in part; which may be laid aſide by a general Conſent of the Houſe, without a Queſtion put.

But without ſuch general Conſent,Scobel 23. no part of the Queſtion propounded may be laid aſide, or omitted: and tho' the general Debates run againſt it, yet if any Member before the Queſtion put (without that part) ſtand up, and deſire that ſuch Words or Clauſe may ſtand in the Queſtion, before the main Queſtion is put: a Queſtion is to be put, Whether thoſe Words, or Clauſe ſhall ſtand in the Queſtion.

The like Method is obſerved when any other Alteration is debated upon,Ibid. to be made in a Queſtion propounded: but upon putting a Queſtion for ſuch Addition, Alteration, or Omiſſion, any Perſon, who hath formerly ſpoken to the Matter of the Queſtion, may ſpeak again, to ſhew his Reaſons for, or againſt ſuch Alteration, Addition, or Omiſſion, before ſuch Queſtion be put.

When the Speaker (the Houſe calling for a Queſtion) is putting the ſame,Ibid. any Member that hath not ſpoken before to the Matter, may ſtand up before the Negative be put.

13 Junij 1604.Ibid. A Bill touching a Subſidie of Tunnage and Poundage having been formerly upon a third Reading recommitted, was return'd: and a Proviſo being tendred for Cheſter, which was twice read, the Queſtion was put for Commitment, in the Affirmative: but before the Negative was put, one ſtood up, and ſpoke to it, which was admitted for orderly, becauſe it is no full Queſtion without the Negative part be put, as well as the Affirmative.

Every Queſtion is to be put firſt in the Affirmative,Id. 24. and then the Negative: to which queſtion every 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) 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 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 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, 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: 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 do not: but if the Speaker ſtand up, he is firſt to be heard, and when he ſtands up, the other muſt ſit down, till the Speaker ſit down.

But if any Perſon riſe up to ſpeak to the Orders of the Houſe in the midſt of a Debate,Ibid. & 31. he muſt keep within that Line, and not fall into the Matter it ſelf: if he do, he may be taken down by the Speaker, or any other Member, calling to the Orders of the Houſe.

While a Member is ſpeaking to a Debate or Queſtion,Id. 31. Vid. Townſ. Coll. 205. he is to be heard out, and not taken down, unleſs by Mr. Speaker (as in ſome Caſes he may) or that he ſpeak of ſuch Matter as the Houſe doth not think fit to admit.

A Matter upon Debate having been once finally determined by a Queſtion,Memorials in Hakewel 33. ought not to be again brought into Diſpute.

27 Martij 1604.Ibid. Sir Edward Coke Attorny General, and Dr. Hone bring a Meſſage from the Lords, deſiring a Conference about the Caſe of Sir Francis Goodwyn. Vide this Argument at large in the Appendix. Upon this Meſſage it was argued, That now the Judgment having paſs't the Houſe, it could not, nor ought to be reverſed by them: and upon the Queſtion it was reſolv'd, There ſhou'd be no Conſerence.

2 Apr. 1604.Ibid. A Vote having paſſed ſome days paſt, That no Conference ſhou'd be admitted with the Lords, the ſame Queſtion was again moved, but was carried in the Negative. And it was then urged for a Rule, That a Queſtion having been once made and carried in the Affirmative, or Negative, cannot be queſtioned again, but muſt ſtand as the Judgment of the Houſe.

4 Junij 1604.Id. 45. Agreed for a Rule, If two ſtand up to ſpeak to a Bill, he that would ſpeak againſt the Bill (if it be known by Demand or otherwiſe) is to be firſt heard.

11 Nov. 1640.Id. 69. It is declared, as a conſtant Order of the Houſe, That if a Witneſs be brought to the Houſe, the Houſe ſitting, the Bar is to be down; otherwiſe, if the Houſe be in a Committee.

In a Debate about an Election,Id. 70. it was Reſolved, That the Party concern'd ſhall be heard to inform the Houſe, and then he is to go forth.

When any Complaint is made againſt a Member,Id. 71. or Exceptions taken to any thing ſpoken by him (after he hath been heard to explain himſelf, if he deſire, or the Houſe command it, which is uſually done by him ſtanding in his Place) if the Houſe be not ſatiſfied, but fall into Debate thereof, ſuch Member is to withdraw.

The Members of the lower Houſe came to the Lords, Townſ. Coll. 311. upon a Conference, as they were ſitting at the Table, and going to the upper end thereof, ſpake.

When any Bills or Meſſages are brought from the lower Houſe to be preſented to the upper Houſe, Townſ 95. Vide Sir S. d'Ewes Jour. 585. the Lord Keeper, and the reſt of the Lords are to riſe from their Places, and to go down to the Bar, there to meet ſuch as come from the lower Houſe, and from them to receive in that Place their Meſſages or Bills.

But when any Anſwer is to be deliver'd by the Lord Keeper in the name and behalf of the Houſe,Ibid. to ſuch Knights and Burgeſſes as come from the lower Houſe, the ſaid Knights and Burgeſſes are to receive the ſame, ſtanding toward the lower end of the Houſe; and the Lord Keeper is to deliver the ſame with his Head covered, and all the Lords are to keep their Places.

In the Anſwer of the Commons Houſe of Parliament to K. James his Objection in Sir Francis Goodwyn's Caſe (3 Apr. 1604.)Memorirls, ut ſupra 33, 34. ) the Objection being, That they refuſe Conference with the Lords. The Anſwer is in theſe words, Concerning our refuſing Conference with the Lords; there was none deſired, till after our Sentence paſſed: and then we thought, that in a matter private to our own Houſe (which by Rules of Order might not be by us revoked) we might without any Imputation refuſe to concur.

CHAP. XVI. Paſſing of Bills.

43 Eliz. 1601.Townſ. Coll. 209. WHile there were divers Diſputes about a Bill, Mr. Fleming the Queens Solicitor took the Bill to look a word in it; after he had done, and laid it on the Board, one ſtood up and ſaid, Mr. Speaker, after a Bill is ingroſſed, you ought to hold it in your hand, and let no man look into it; which was confeſſed by all. And ſo the Speaker took it.

When a Bill is read, Cook 12.115. the Speaker doth open the Parts of the Bill; ſo that each Member of the Houſe may underſtand the Intention of each Part of the Bill.

Such Bills,Hakewel 134. as being firſt paſſed in one Houſe, are ſent unto the other, are alway ſent in Parchment fairly ingroſſed.

Publick Bills are in due courſe to be preferred in reading and paſſing before private:Ibid. Co. 12.116. and of Publick, ſuch as concern the Service of God and Good of the Church. Secondly, ſuch as concern the Commonwealth, in which are included ſuch as touch the Perſon, Revenue, or Houſhold of the King, Queen, &c. and they ought eſpecially to be preferred in paſſing. Laſtly, private Bills are to be offer'd to be read, and paſſed in ſuch Order as they were preferred.Townſ. Coll. 270. And they that carry them, to give ſome brief Commendation of them.

Any Member of the Houſe may offer a Bill for publick Good,Scobel 40. except it be for impoſing a Tax: which is not to be done, but by Order of the Houſe firſt had.

If any Member deſire, that an Act made, and in force, may be repealed or altered, he is firſt to move the Houſe in it, and have their Reſolution, before any Bill to that purpoſe may be offer'd; and if upon the Reaſons ſhew'd, for repealing or altering ſuch Law, the Houſe ſhall think it fit, they do uſually appoint one or more of the Members to bring in a Bill for that purpoſe.

All men of Law know,Townſ. Coll. 238. that a Bill, which is only expoſitory to expound the 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 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 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 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, 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 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 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 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, 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 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 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 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 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 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 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 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 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 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 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 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 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: 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 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 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 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 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 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) 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, 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 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. 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. 〈1 page missing〉 ters queſtionable touching Priviledges and Returns; and to acquaint the Houſe with their Proceedings from Time to Time, ſo as Order may be taken according to the Occaſion, and agreeable with ancient Cuſtoms and Precedents.

And to the end theſe Queſtions may be ſpeedily determin'd,Ibid. and the Houſe may know their Members; Days are uſually aſſign'd, beyond which there ſhall be no Queſtioning a former Election.

So in the Parliament 21 Jac. 1. it was order'd,Ibid. That all Petitions about Elections and Returns ſhou'd be preſerred to the Committee of Priviledges, within a Fortnight from that day, or elſe to be ſilenced for that Seſſion.

16 Apr. 1640.Id. 13. Order'd, That thoſe who would queſtion Elections, ſhou'd do it within ten days, by Petition.

6 Nov. 1640.Ibid. Order'd, That all ſuch as will queſtion Elections now return'd, ſhall do it in fourteen days, and ſo within fourteen days after any new Return.

Some Queſtions have been (where there have been double Indentures return'd for ſeveral Perſons for the ſame Place) whether all, or any, or which ſhall ſit.Id. 13. The general Rule and Practiſe hath been in ſuch Caſe, that neither one nor other ſhall ſit in the Houſe, till it were either decided or order'd by the Houſe.

17 Apr. 19 Jac. 1. Order'd,Id. 16. That no Petition ſhall be received by a Committee, but openly at a Committee, and read at the Committee, before the Party go that preferred it, and the Parties Name that preferred it, be ſubſcribed.

In the Parliament 21 Jac. 1.Id. 17. Reſolved, That all Affidavits to be taken in any Court, concerning Elections, Returns, or any Thing depending thereupon, ſhou'd be rejected, and not hereafter to be uſed.

Tho' the Committee examine not upon Oath,Ibid. yet they may puniſh any that ſhall teſtifie untruly, of which there was an Inſtance in the Caſe of one Damport.

Sir Francis Popham, Id. 14. being return'd a Burgeſs for Chippenham by one Indenture, and another Perſon return'd for the ſame Place by another Indenture; it was moved he might be admitted into the Houſe, till the Matter were determin'd. But he was not ſo admitted, and it was referred to the Committee for Priviledges.

21 Jac 1.Id. 15. Two Indentures were return'd for Southwark: the one returned Yarrow and Mingy; the other Yarrow and Bromfeild. Upon a Report from the Committee of Elections, it was Reſolved, That the Election and Return for Yarrow ſhou'd ſtand good, and that he ſhou'd ſit in the Houſe.

22 Martij 21 Jac. 1.Ibid. Sir John Jackſon and Sir Thomas Beaumont were both return'd for one Bargeſſes Place for Pontefract. Order'd, That the Committee take the Election into conſideration to morrow, and that in the mean time the Parties forbear to come into the Houſe.

CHAP. XX. A Seſſion of Parliament.

THE Paſſing of any Bill,4 Inſt 27. or Bills, by giving the Royal Aſſent thereto, or the giving any Judgment in Parliament, doth not make a Seſſion: but the Seſſion doth continue till that Seſſion be prorogued, or diſſolved: And this is evident by many Preſidents in Parliament ancient and late.

14 Ed. 3.Ibid. On the firſt Monday a Grant of, &c. being given to the King, was made a Statute, and paſs't both Houſes, and had the Royal Aſſent thereunto: yet after this the Parliament continued, and divers Acts made, and Petitions granted.

3 Rich. 2.Ibid. Declared by Act of Parliament, That the killing of John Imperial, Ambaſſador of Genoa, was High Treaſon: yet the Parliament continued long after, and divers Acts made, &c.

7 Hen. 4.Ibid. An Act made for certain Strangers departing the Realm, &c. yet the Parliament continued till Dec. 8 Hen. 4.

1 Hen. 7.Ibid. The Attainders of ſuch as were returned Knights, Citizens and Burgeſſes, were reverſed by Act of Parliament, before they could ſit in the Houſe of Commons, and the Parliament continued, and divers Acts made.

33 Hen. 8.Ibid. At the beginning of the Parliament, the Bill of Attainder againſt Queen Catherine Howard paſs't both Houſes: yet the Parliament continued, and divers Acts paſs't.

Tho' Bills paſs both Houſes,Ibid. and the Royal Aſſent be given thereto, there is no Seſſion until a Prorogation, or a Diſſolution.

The Diverſity between a Prorogation and an Adjournment,Ibid. or Continuance of the Parliament, is, that by the Prorogation in open Court, there is a Seſſion; and then ſuch Bills as paſs't either, or both Houſes, and had no Royal Aſſent to them, muſt at the next Aſſembly begin again.

Every ſeveral Seſſion of Parliament is in Law a ſeveral Parliament: Ibid. Hutton 61. Brook tit. Parl. 86. but if it be but adjourned, or continued, then there is no Seſſion; and conſequently all things continue in the ſame ſtate they were in before the Adjournment or Continuance.

The Titles of divers Acts of Parliament be,4 Inſt. 27. At the Seſſion holden by Prorogation, or by Adjournment and Prorogation; but never by Continuance or Adjournment tantùm. And the uſual Form of Pleading is, ad Seſſionem tentam, &c. per Prorogationem.

The Adjournment or Continuance is much more beneficial for the Commonwealth for expediting of Cauſes,4 Inſt. 28. than a Prorogation.

The King deſired the Houſe of Commons not to make a Receſs in the Eaſter Holy-days: This Meſſage for Non-receſs was not well-pleaſing to the Houſe Sir Robert Philips firſt reſented it, and took Notice,Ruſh. Coll. 537. that in 12 and 18 Jac. 1. upon the like Intimation, the Houſe Reſolved, It was in their power to adjourn or ſit. Hereafter, ſaid he, this may be put upon us by Princes of leſs Piety. Let a Committee conſider hereof, and of out Right herein, and to make a Declaration. Sir Edward Coke ſaid, The King makes a Prorogation, but this Houſe Adjourns it ſelf: The Commiſſion of Adjournment we never read, but ſay, this Houſe adjourns it ſelf. If the King write to an Abbot for a Corody, for a Vallet, if it be ex rogatu, tho' the Abbot yields to it, it binds not. Therefore I deſire that it be entred, that this be done ex Rogatu Regis.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

If the Commons grant Poundage for four years, and the Lords grant but for two years; the Bill ſhall not be ſent back to the Commons: but if the Commons grant but for two years, and the Lords for four years, there it ſhall be redelivered to the Commons. And in that Caſe the Lords may make a Schedule of their intent, or Endorſe the Bill in this Form, The Lords do aſſent to the continuing for four years. And when the Commons have the Bill again, and will not aſſent to it, that cannot be an Act: but if the Commons will aſſent, then they endorſe their Anſwer on the Margin below within the Bill, in this Form; The Commons do aſſent to the Schedule of the Lords annexed to this Bill, and then it ſhall be ſent to the Clerk of the Parliament.

The Cuſtom and Priviledge of this Houſe hath always been,Vide Sir S. d'Ewes Journ. 483. Col. 2. firſt to make offer of the Subſidies from hence, then to the upper Houſe, except it were that they preſent a Bill unto this Houſe with deſire of their Aſſent thereto, and then to ſend it up again. And Reaſon it is, that we ſhou'd ſtand upon our Priviledge, ſeeing the Burden reſteth upon us as the greateſt Number; per Francis Bacon, 35 Eliz 1592.

The Lord Chancellor in Parliament offer'd the Commons a Writ to deliver their Burgeſs; Petyt's Miſcell. Parl. 4. in Margin. but they refuſed it, as being clear of Opinion, That all their Commandments and Acts were to be done and executed by their Serjeant, without Writ.

It is the Law and Cuſtom of Parliament, 4 Inſt. 14, 34 Rot. Parl. 13 E. 3. n. Cott. Records f. 17. n. 6, 9. That when any new Device is moved on the King's behalf in Parliament, for his Aid, or the like; the Commons may anſwer, That they tender the Kings Estate, and are ready to aid the ſame; only in this Device they dare not agree, without Conference with their Countreys; whereby it appeareth, That ſuch Conference is warrantable by the Law and Cuſtom of Parliament.

It is to be obſerved,4 Inſt. 14. tho' one be choſen for one particular County, or Borough, yet when he is return'd, and ſits in Parliament, he ſerveth for the whole Realm: for the End of his coming thither (as in the Writ of his Election appeareth) is general, ad faciendum, & conſent iendum, &c.

If Offences done in Parliament might have been puniſh'd elſewhere,4 Inſt. 17. it ſhall be intended, that at ſome time it would have been put in ure.

As Uſage is a good Interpreter of Laws,Coke Litt. 81. b. ſo Non-uſage, where there is no Example, is a great Intendment, that the Law will not bear it.

Not that an Act of Parliament by Non-uſer can be antiquated or loſe his force,Co. Lit. 81. b. but that it may be expounded or declared how the Act is to be underſtood.

There is no Act of Parliament but muſt have the Conſent of the Lords, 4 Inſt. 25. the Commons, and the Royal Aſſent of the King: and whatſoever paſſeth in Parliament by this threefold Conſent, hath the Force of an Act of Parliament.

The Difference between an Act of Parliament, Ibid. and an Ordinance in Parliament is, for that the Ordinance wanteth the threefold Conſent, and is ordained by one or two of them.

Some Acts of Parliament are introductory of a new Law,Ibid. and ſome be declaratory of the ancient Law, and ſome be of both kinds, by addition of greater Penalties, or the like. Some Acts are general, and ſome private, or particular.

All Acts of Parliament relate to the firſt day of Parliament, Ibid. 33 H. 6. f. 18. a. 33 H. 8. Brook Parl 86. & Relation 35. if it be not otherwiſe provided by the Act.

The Houſe of Commons is to many Purpoſes a diſtinct Court,4 Inſt. 28. Vide Sir S. d'Ewes Jour. 550. Col. 1, 2. and therefore is not prorogued or adjourned by the Prorogation or Adjournment of the Lords Houſe: but the Speaker, upon ſignification of the King's Pleaſure, by the Aſſent of the Houſe of Commons, doth ſay, This Court doth Prorogue or Adjourn it ſelf. And then it is Prorogued or Adjourned, and not before.

39 Eliz. 1597. Townſ. Coll. 101, 102. Vide Sir S. d'Ewes Jour. 550. Col. 1, 2. Nov. 5. Through a meer Miſtake and Error of the Speaker and themſelves, the Houſe conceived themſelves to have been Adjourned by the Lord Keeper, the firſt day of this Parliament, to this preſent day.

When it is diſſolved,Ibid. the Houſe of Commons are ſent for up to the higher Houſe, and there the Lord Keeper, by the King's Commandment, diſſolveth the Parliament, and not before.

A Parliament cannot be diſcontinued or diſſolved but by Matter of Record,Hutton 62. and that by the King alone.

The King, at the time of the Diſſolution,4 Inſt. 28. ought to be there in Perſon, or by Repreſentation; for as it cannot begin without the Preſence of the King, either in Perſon or by Repreſentation; ſo it cannot end, or be diſſolved without his Preſence either in Perſon or by Repreſentation.

Nihil enim tam Conveniens est naturali aequitati, Bracton. unumquodque diſſolvi eo ligamine quo lagatum est.

By the Statute of 33 H. 8. c. 21. it is declared by Act of Parliament, Ibid. That the King's Letters Patents under his great Seal, and ſigned with his Hand, and declared and notified in his Abſence to the Lords Spiritual and Temporal, and Commons aſſembled in the higher Houſe of Parliament, is, and ever was, of as good strength and force, as if the King's Perſon had been there perſonally preſent, and had aſſented openly and publickly to the ſame.

In the Lords Houſe, 4 Inſt. 34, 35. the Lords give their Voices from puiſne Lord ſeriatim, by the word of [Content] or [Not Content] The Commons give their Voices upon the Queſtion, by Yea, or No.

Every Lord Spiritual and Temporal, 4 Inſt. 43. Crompton 4. b. and every Knight, Citizen, and Burgeſs ſhall upon Summons come to the Parliament, except he can reaſonably and honeſtly excuſe himſelf, or elſe he ſhall be amerced, &c that is reſpectively a Lord by the Lords, and one of the Commons by the Commons.

By the Statute of 6 Hen. 8. c. 16. No Knight, Ibid. Crompton 4 b. Citizen, or Burgeſs of the Houſe of Commons ſhall depart from the Parliament without Licence of the Speaker and Commons: the ſame to be entred of Record in the Book of the Clerk of the Parliament, upon pain to looſe their Wages.

Sickneſs is no cauſe to remove any Knight, Citizen, 4 Inſt. 8. or Burgeſs of the Houſe of Commons.

18 Eliz. 1575. Sir Simon d'Ewes Journ. 244. Col. 2. Reſolved by the Houſe, That any perſon being 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 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 in to the Bar, to avow the Subſtance of the Petition; eſpecially if it be a Complaint againſt any.

18 Nov. 1640.Ibid. One Vivers preſented a Petition in the Name of the Mayor, Aldermen, Burgeſſes, and other Inhabitants of Banbury, was call'd in, and did acknowledge the Hand to the Petition to be his, and that he did deliver it by Order, and on behalf of the Town of Banbury, and thereupon it was committed.

The like in the ſame Parliament, Ibid. upon reading the Petition of one Ward of Salop; and likewiſe on reading the Petition of Henry Hogan.

Tho' freedom of Speech and Debates be an undoubted Priviledge of the Houſe, Scobel 72. yet whatſoever is ſpoken in the Houſe, is ſubject to the Cenſure of the Houſe.

Tho' the Committee examine not upon Oath,Id. 17. yet they may puniſh any that ſhall teſtifie untruly.

In the Parliament, Hakewel 93. if the greateſt part of the Knights of the Shire do aſſent to the making of an Act of Parliament, and the leſſer part will not agree to it; yet this is a good Act or Statute to laſt in perpetuum, and that the Law of Majoris partis is ſo in all Councels, Elections, &c. both by the Rules of the Common Law, and the Civil.

Tenants d'ancient Baronies ſont diſcharge de Contribution al Gages de Chivaliers del Parliament; Moor fol. 768. quia lour Seigneurs ſervent pur eux in Parliament.

Tenants of ancient Baronies are diſcharged from Contribution to the Wages of Knights of Parliament, becauſe their Lords ſerve for them in Parliament.

Apr. 1640. Scobel 14. It was ordered in that Parliament, That if any ſit in that Houſe, that are return'd by more Indentures than uſual, they ſhould withdraw till the Committee for Priviledges had further order'd.

In the beginning of every Parliament, Id 40. ſome Perſons have been appointed to conſider of ſuch Laws as had continuance to the preſent Seſſion, whether they were fit to be continued, or determin'd: as alſo of former Statutes repealed or diſcontinued, whether fit to be reviewed, and what are fit to be repealed.

Any Member of the Houſe may offer a Bill for publick good,Ibid. except it be for impoſing a Tax: which is not to be done, but by Order of the Houſe firſt had.

A private Bill that concerns a particular Perſon,Id. 41. is not to be offer'd to the Houſe, till the leave of the Houſe be deſired, and the Subſtance of ſuch Bill made known, either by Motion or Petition.

It hath at ſome times been order'd, Hakewel 135. That every one that preferreth a private Bill ſhou'd pay five pounds to the poor, as in 43 Eliz. towards the end of the Parliament, when they were troubled with much Buſineſs, but it holdeth not in other Parliaments.

Scobel 41. Nevertheleſs the Speaker had liberty to call for a private Bill to be read every Morning: and uſually the Morning is ſpent in the firſt reading of Bills, until the Houſe grow full.

If any publick Bill be tender'd,Ibid. the Perſon who tenders the Bill, muſt firſt open the Matter of the Bill to the Houſe, and offer the Reaſons for admitting thereof: and thereupon the Houſe will either admit, or deny it.

7 Martij 1606.Id. 46. Mr. Hadley being aſſigned of a Committee to confer with the Lords, deſired to be ſpared, he being in Opinion againſt the Matter it ſelf. And it was conceived for a Rule, That no man was to be imploy'd in any Matter, that had declared himſelf againſt it: and the Queſtion being put, it was reſolved, Mr. Hadley was not to be imploy'd.

CHAP. XXII. Priviledge of Parliament.

THE Priviledge of Tenants in Ancient Demeſne muſt be as ancient as their Tenure and Service,Sir R. Atkin's Argument, 18. Vide Coke 9 Rep. in Preſ. for their Priviledge comes by reaſon of their Service, and their Service is known by all to be before the Conqueſt, in the time of Edward the Confeſſor, and in the time of the Conqueror.

Every man muſt take notice of all the Members of the Houſe return'd of Record,4 Inſt. 23, 24. at his Peril.

Otherwiſe it is of the Servant of any of the Members of the Houſe.Id. 24.

A Member of Parliament ſhall have Priviledge of Parliament, Id. 42. Hakewel 62. not only for his Servants, but for his Horſes, &c. or other Goods diſtrainable.

The Priviledge is due eundo, Scobel 88. morando, redeundo, for the Perſons of Members, and their neceſſary Servants, and in ſome Caſes for their Goods and Eſtates alſo during that time.

For their own Perſons,Ibid. they have been priviledged from Suits, Arreſts, Impriſonments, Attendance on Trials, Serving on Juries, and the like; yea from being ſummoned or call'd to attend upon any Suit in other Courts by Subpaena ſerved on them.

He that doth Arrest any Member of either Houſe, Hakew. 62. Vide Dyer 60. during the Seſſion of Parliament, ſhall be impriſon'd in the Tower, by the nether Houſe of which he is, and ſhall be put to his Fine; and the Keeper alſo, if he will not deliver him when the Serjeant at Arms doth come for him by Command of the Houſe.

The Servants tending upon their Maſters during Parliament, Ibid. Crompton's Juriſ. 11. who are neceſſary; and alſo ſuch Officers as attend the Parliament, as the Serjeant at Arms, the Porter of the Door, Clerks, and ſuch like, and alſo their Chattels and Goods neceſſary, are priviledged; ſo that they ſhall not be taken, or arreſted by any Officer, if it be not in caſe of Treaſon or Felony.

Generally the Priviledges of Parliament do hold,4 Inſt. 25 unleſs it be in three Caſes, viz. Treaſon, Felony, and the Peace.

No Priviledge is allowable in caſe of the Peace,2 Nalſon 450. nor in Caſe of Conviction, or diſarming of Recuſants.

No Miniſter of the Parliament, St. 3 Ed. 4. in Ireland. during forty days before, and forty days after the Parliament finiſh'd, ſhall be impleaded, vexed, or troubled by no means.

That every Miniſter,Ibid. as well Lords Proctors as Commons, be diſcharged and quitted of all manner of Actions had, or moved againſt them, or any of them, during the time aforeſaid; and this to endure for ever.

Apres que Members ſont returns, Dyer 16. a. pl. 19. lour perſonal Attendance eſt cy neceſſary al Parliament que ils ne doient pur aſcum Buſineſs eſtre abſents, & nul un Perſon poit eſtre bien mis, eo que il eſt un neceſſary Member: & pur ceo, ſi aſcun morust devant le Parliament, un novel ſerra eſlieu en ſon lieu, iſſint que l'entire Number ne doit failer: & donque il enſue, que le Perſon de cheſcun tiel Member doit eſtre privilege d'arreſt al Suit d'aſcun privat Perſon, durant cel temps que il eſt embuſyd entour les Affairs del Roy, & ſon Realm: & tiel privilege ad eſtre touts foits grant per le Roy a les Commoners al Requeſt del Prolocutor del Parliament le primer Jour, &c.

After that the Members are returned, their Attendance is ſo neceſſary to the Parliament, that they ought not for any Buſineſs to be abſent, and no one Perſon can well be miſt, ſo that he is a neceſſary Member: and therefore if any die before the Parliament, a new one ſhall be choſen in his place, ſo that the entire Number may not fail: and then it follows, that the Perſon of every ſuch Member ought to be priviledged from Arreſt at the Suit of any private Perſon, during the time that he is buſied in the Affairs of the King and the Realm and ſuch Priviledge has uſed to be granted at all times by the King to the Commons, at the Requeſt of the Speaker of the Parliament the firſt Day, &c.

Common Reſon voit, Ibid. que intant que le Roy, & tout ſon Realm ad un Intereſt en le Corps de cheſcun de dits Members; il ſemble que le privat Commodity d'aſcun particular home ne doit eſtre regard.

Common Reaſon will have it, that foraſmuch as the King and his whole Realm have an Intereſt in the Body of every one of its Members, it ſeems that the private Commodity of any particular man ought not to be regarded.

Ceſt Court de Parliament eſt. Ibid. Crompt. 7. b. pluis haut Court, & ad pluſors Priviledges que aſcun auter Court del Realm; pur que ſemble que en cheſcun Caſe ſans aſcun Exception cheſcun Burgeſs eſt privilege, quant l'Arrest n'est forſque al Suit d'un Subject.

The Court of Parliament is the higheſt Court, and has more Priviledges than any Court of the Realm: for which it ſeems that in every Caſe without any Exception, every Burgeſs is priviledged as to Arreſt only at the Suit of the Subject.

Coment que le Parliament erra en le grant del Brief de Privilege, Id. 61. uncore ceo n'est reverſible en auter Court.

Tho' the Parliament do err in the Grant of a Writ of Priviledge, yet it is not reverſible in another Court.

Fuit dit per Dyer, Moor f. 57. n. 163. que ſi home ſoit condemne en Debt ou Treſpaſs, & eſt eſlieu un des Burgeſſes ou Chivalers del Parliament, & puis ſoit priſe en Exeoution; il ne poet aver le privilege del Parliament: & iſſint fuit tenus per les Sages del Ley en le Caſe d'un Ferres en temps le Roy H. 8. & coment que le privilege à ceo temps fuit à luy allowe, Crompton's Jur. p 7, 8, 9, 10, 11. 34 H. 8. ceo fuit minus juſt.

It was ſaid by Dyer, That if a Man be condemned in Debt or Treſpaſs, and is choſen one of the Burgeſſes or Knights of Parliament, and afterwards is taken in Execution; he cannot have the Priviledge of Parliament: and ſo it was held by the Sages of the Law in the Caſe of one Ferrers in the time of King Henry the Eighth,Petyt's Miſcel. Parl. p. 1. &c. and tho' the Priviledge at that time was allowed him, yet it was unjuſt.

Hill & Stukely les Viſcounts de Londres fueront commit al Tower pur lour Contemts; Dyer 61. pl. 28. pur ceo que ils ne voil leſſer George Ferrers, que fuit arreſt ſur un Execution, d'aler alarge, quant les Serjeants del Arms vient pur luy, ſans aſcun Brief.

Hill and Stukely, the Sheriffs of London, were committed to the Tower for their Contempts, for that they would not ſuffer George Ferrers, who was Arreſted upon an Execution, to go at large, when the Serjeant at Arms came for him, without any Writ.

Le lower Meſon del Parliament agree, Fitzherberts caſe. Moor ſo. 340 n 461. que entant que un fuit arreſt, devant que il fuit eſlie Burgeſs, que il ne doit aver le privilege del Meſon.

The lower Houſe of Parliament agreed, that in regard one was arreſted, before he was choſen Burgeſs that he ought not to have the Priviledge of the Houſe.

Vide Fitz-Geralds Caſe, Anno 1640. in Ireland. Vide 39 Hen. 6. Walter Clerks Caſe, 5 Hen. 4. Richard Chidder 38 Hen. 8. Tyneman's Caſe, 43 Eliz. Belgrave's Caſe, 39 Hen. 6. Ferrer's Caſe in Holinſhead, f. 1584.

Debt upon an Obligation, Brownl. 91. Jackſon verſus Kirton. whereof the Condition was, That if A. would render, himſelf to an Arreſt in ſuch a place, &c. A. pleads priviledge of Parliament, and that being Servant to ſuch a Member, he could not render himſelf to be arreſted. Upon Demurrer, the Opinion of the Court was for the Plaintiff; for A. might render himſelf, and let it be at their Peril, if they will arreſt him.

Magiſter Militiae Templi petit, 4 Inſt. 24. quòd diſtringat Catalla unius de Concilio, tempore Parliamenti, pro Reditu unius Domûs in London. Rex reſpondet, non videtur honeſtum, quòd illi de Concilio ſuo diſtringantur Tempore Parliamenti; ſed alio Tempore, &c.

Bogo de Clare, Ibid. Townſ. Coll. 255. Sir Simon d'Ewes Jour. 655. Col. 1 ſays he was fined 20000 Marks. and the Prior of Trinity, for ſerving a Citation on the Earl of Cornwal in the Time of the Parliament, committed to the Tower, and Bogo, at whoſe Procurement it was done, fined in 2000 Marks to the King, and a thouſand pounds to be paid to the Earl.

4 Inſt. 24. And yet the ſerving of the ſaid Citation did not arreſt or reſtain his Body: and the ſame Priviledge holdeth in Caſe of Subpoena, or other Proceſs out of any Court of Equity.

Rex mandavit Juſticiariis ſuis ad Aſſiſas, Ibid. &c. quod ſuperſedeant captioni eorundem, ubi Comites, Barones, & alii Summoniti ad Parliamentum Regis ſunt Partes, quamdiù dictum Parliamentum duraverit.

A Citation ſhall not be ſerved on any Member,Ibid. Vid. Sir S. d'Ewes Jour. 435. Col. 1. nor Subpoena.

Divers Perſons committed to Priſon for ſerving a Citation on John de Thorsby, Ibid. Clerk of the Parliament.

22 Febr. 6 Ed. 6. Scobel 110 Vid. Sir S. d'Ewes Journ. 249. Col. 2. Order'd, If any Burgeſs require Priviledge for himſelf, or his Servant; upon Declaration thereof to the Speaker, he ſhall have a Warrant ſign'd by the Speaker to obtain the Writ.

22 Martij 18 Jac. 1.Scobel 110 It was reſolved, That no Protection under any Mans hand of this Houſe, is good.

29 Jan. 1557.Id. 89. 4 & 5 Ph. & Mar. Thomas Ennys Burgeſs for the Borough of Thusk, complained that a Subpoena was deliver'd him to appear in Chancery, and required the Priviledge of the Houſe: whereupon Sir Clement Higham and Mr. Recorder of London, were ſent to the Lord Chancellor, to revoke the Proceſs.

27 Eliz. Id. 90. Vid. Townſ. Coll. 213. Sir Simon d'Ewes Jour. 438. Col. 1, 2. One Kyrl having caus'd a Subpoena out of the Star-Chamber to be ſerved on a Member of the Houſe of Commons; and for want of Appearance, taken out an Attachment, and inforced the Payment of Money to diſcharge the ſame: the ſaid Kyrl was committed, till he had paid Coſts to the Party ſerved, and made a Submiſſion to the Houſe on his Knees at the Bar.

15 Maij 1604.Scobel 90. The Serjeant was ſent to Attach the Body of one, who ſerved a Subpoena on the Perſon of Sir Robert Needham a Member.

7 Maij 1607.Ibid. The Serjeant was ſent for Edward Throgmorton, for ſerving a Subpoena on Sir Oliver Cromwel.

14 Maij 19 Jac. 1.Id. 91. Upon Complaint of the Service of a Subpoena on a Member of this Houſe, Sir Edward Coke vouched a Precedent, 10 Ed. 3. That a Subpoena being ſerved on the Clerk of this Houſe, the Party was committed for breaking the Priviledge of this Houſe.

4 Maij 1607.Ibid. A Subpoena out of the Exchequer being ſerved on Sir R. Pawlet a Member; the Houſe granted Priviledge, and order'd the Serjeant by his Mace, to attach the Parties delinquent, and to bring them to the Bar, to receive the judgment of the Houſe. And the next day Mr. Speaker writ a Letter to the Lord Chief Baron, That no further Proceſs do iſſue againſt the ſaid Sir R. Pawlet.

3 Dec. 19 Jac. 1.Ibid. Upon Occaſion of a Subpoena ſerved on Mr. Brereton, it was agreed by the whole Houſe, That the ſerving of a Subpoena upon a Member of this Houſe, knowing him to be a Parliament-man, is a breach of Priviledge: and Napper, who ſerved the Subpoena, was committed.

39 Eliz. Townſ. Coll. 109. Vide Sir S. d'Ewes 546. Col. 2. Mr. Combs and Mr. Henry Powle; Members of this Houſe, being ſerved with a Subpoena ad teſtificandum, by Mrs. Ann Wye; the Serjeant of the Houſe was order'd to bring in the ſaid Ann to appear in this Houſe, to anſwer the Contempt.

43 Eliz. 1601.Id. 212, 213, 214. A Subpoena ad teſtiſicandum ſerved on Mr. Johnſon, and other Members; Agreed, That the Serjeant be ſent to arreſt all thoſe to appear that had procured the Subpoena, to anſwer their Contempt with all ſpeed.

44 Eliz. 1601.Id. 246. Sir Simon d'Ewes, Jour. 651. Col. 1. Sir Edmond Morgan a Member of this Houſe was ſerved with a Subpoena, at the Suit of one Lemney; who was ſent for by the Serjeant. Id. 257. And becauſe Chriſtopher Kennel, who ſerved it, profeſſed Ignorance, he was only adjudged to three days Impriſonment in the Cuſtody of the Serjeant, and pay his Fees.

The ſame Order with William Mackerleſs, Ibid. Vid. Sir S. d'Ewes Jour. 656. Col. 1, 2. who ſerved a Subpoena on Mr. Pemberton a Member, at the Suit of one Mackerneſs.

44 Eliz. 1601.Sir Simon d'Ewes Jour. 655. Col. 1, 2. Mr. Philips a Member of the Houſe was ſerved with a Privy Seal out of the Court of Wards, by one Thomas Dean Servant to Mrs. Chamberlain a Widow. The Houſe ordered that ſhe, and her Servant, ſhou'd be ſent for by the Serjeant.

Vide plus de his Sir Simon d'Ewes Journal 637. & alibi paſſim.

33 Eliz. The Sheriffs of London were fined by the Commons, Scobel 92. and ſent to the Tower, for not delivering a Burgeſs arreſted for Debt, ſitting the Parliament.

6 Apr. 1593.Id. 92. Vide Sir S. d'Ewes Journ. 519. The Serjeant at Mace, who arreſted Mr. Neal a Member upon an Execution; and Weblyn, at whoſe Suit he was arreſted, were brought to the Bar, and both committed Priſoners to the Tower: and the Serjeant at Arms attending this Houſe was order'd to deliver them over to the Lieutenant of the Tower.

13 Maij 1607.Ibid. Nicholas Allen an Attorney, and Palmer, at whoſe Suit Mr. Martin a Member was Out-law'd, order'd to be ſent for by the Serjeant, and brought to the Bar to anſwer their Contempt.

An Attachment for Contempt being taken out of Chancery againſt Mr. Belingham a Member:Ibid. the Houſe order'd to have Priviledge, and a Letter to be ſent to Mr. Evelyn, one of the ſix Clerks, to ſtay the Suit.

Upon a Writ directed to the Sheriff to levy Twenty pounds Iſſues upon Sir Robert Oxenbridge for Non-appearance, it was order'd,Id. 93. That if the Iſſues were not diſcharged before that night, the Parties delinquent to be brought next Day to the Bar by the Serjeant.

14 Maij 1576.Ibid. Sir Edward Montague a Member of the Houſe, was warned to attend a Trial in London, which was to be had againſt him; and was by Order of the Houſe priviledged: and the Party that gave the Warning was ſummon'd to appear at the Bar next Morning.

21 Febr. 1588.Id. 94. Vide Sir S. d'Ewes Jour. 436. Col. 1, 2. Order'd, That thoſe Members of the Houſe who have Occaſion of Priviledge (Writs of Niſi priùs being brought againſt them) do declare their Caſe to the Speaker, who thereupon ſhall direct the Warrant of this Houſe to the Lord Chancellor, for awarding Writs of Superſedeas.

3 Martij 18 Jac. 1.Ibid. Upon a Report from the Committee (appointed to conſider of a way of ſtaying Trials againſt Members of the Houſe) that by ſeveral Precedents the Cuſtom appear'd to be in ſuch Caſes, That on Motions and Orders in the Houſe, Letters were written to the Juſtices of Aſſize for ſtay of Trials againſt Members of the Houſe, which Letters were enter'd in the Journal-Book, and that it belongeth to the Clerk to write the ſame. It was thereupon Reſolved, That the former Courſe of writing Letters to the Justices of Aſſize, ſhou'd be held according to former Precedents.

10 Junij 1607.Id. 95. Sir Robert Johnſon a Member of this Houſe, mov'd for a Letter to ſtay a Trial againſt him in the Exchequer; which was granted (as appeareth by the Entry on the 13th day, when a Petition of Sir Robert Brett was read againſt that Priviledge.) The Priviledge formerly granted was aſſirmed, upon this Reaſon, That no man ſhou'd have any Thing to withdraw him from his Service in the Houſe. The like 14 Febr. 18 Jac. 1.

The Priviledge of the Houſe is ſo much inſiſted on,Ibid. that it hath been a Queſtion, Whether any Member of the Houſe could conſent, that himſelf might be ſued, during the Seſſion; becauſe the Priviledge is not ſo much the Perſons, as the Houſes: and therefore when any Perſon hath been brought to the Bar for any Offence of this Nature, the Speaker hath uſually charged the Perſon in the Name of the whole Houſe, as a Breach of the Priviledge of the Houſe.

3 Junij 1607.Ibid. Sir Thomas Holcroft a Member of the Houſe, had occaſion to ſue at Law, and was ſued, with which he was content, and deſired the Leave of the Houſe: there was a Queſtion, Whether the Houſe ſhou'd give leave for a Breach of Priviledge: and it was reſolved, The Houſe might give leave.

7 Maij 1607.Id. 96. Sir Thomas Bigg and Sir Thomas Love being return'd upon an Attaint in the Kings Bench, it being moved, that in this Caſe they ought to have Priviledge: it was ſo order'd, and the Serjeant ſent with his Mace, to deliver the Pleaſure of the Houſe to the Secondary, the Court ſitting.

22 Nov. 1597. Sir John Tracy a Member of this Houſe,Ibid. Vide Sir S. d'Ewes Jour. 560. Col. 2. being at the Common Pleas Bar, to be put upon a Jury; the Serjeant at Arms was preſently ſent with his Mace to fetch him thence, to attend his Service in the Houſe.

Apr. 12 Jac. 1.Scobel 96. Sir William Bampfield was committed by the Lord Chancellor for a Contempt, after the Writ of Summons, but before the Election. Order'd upon the Queſtion, That he ſhall have his Priviledge by Writ of Habeas Corpus.

1 Jac. 1. Seſſ. 2.Ibid. Sir John Peyton return'd Knight for Cambridge the laſt Seſſion, and ſince choſen Sheriff; Reſolved, That he ſhall attend his Service here.

28 Martij 1542. Herbert's Hen. 8.539 During this Seſſion of Parliament ſome wrong was offer'd to their ancient Priviledges, a Burgeſs of theirs being Arreſted: whereof the King underſtanding, not only gave way to their releaſing him, but Puniſhment of the Offenders: inſomuch that the Sheriffs of London were committed to the Tower, and one Delinquent to a place call'd Little Eaſe, and others to Newgate.

2 Martij 1592. Scobel 112, 113. Vide Moor ſo. 340. n. 461. Fitzherbert's Caſe. Vide Sir S. d'Ewes Jour. 479, 480, 490. Col. 2. Upon a Report from the Committee of Priviledges, That one Mr. Fitzherbert was return'd a Burgeſs, and accepted against, becauſe he was alledged to be Outlaw'd, and detain'd upon ſuch Outlawry: The Houſe order'd, That Mr. Speaker ſhou'd move the Lord Keeper for an Habeas Corpus cùm Cauſà, to bring up the Body and the Cauſe of Mr. Fitzherbert. But the Lord Keeper return'd, That in regard of the ancient Liberties and Priviledges of this Houſe, the Serjeant at Arms be ſent by Order of this Houſe for Mr. Fitzherbert at his own charge; by reaſon whereof he may be brought, without peril of being further arrested by the way: which was approved of.

1 Jac. 1. Scobel 104, 103, 106, 107. The firſt day of ſitting, complaint was made, That Sir Thomas Shirley choſen a Member of the Houſe, Vid. Petyt's Miſcell. Parl. 122, 123, 124, 125. was arrested four days before the ſitting of this Parliament: a Warrant iſſued to the Clerk of the Crown for a Habeas Corpus to bring him to the Houſe, being then a Priſoner in the Fleet; and the Serjeant and his Yeoman were ſent for in Custody, who being brought to the Bar, and confeſſing their Fault, were remitted for that time. 17 April, Upon hearing Councel in the Houſe at the Bar for Sir Thomas Shirley, and the Warden of the Fleet; it was order'd, That Simſon, at whoſe Suit, and the Serjeant by whom the Arreſt was made, ſhou'd be committed to the Tower. 4 Maij, A Habeas Corpus was awarded to the Warden of the Fleet to bring Sir Thomas Shirley to the Houſe; the Warden deny'd to execute it; for which the 7th of May following he was ſent for by the Serjeant, and brought to the Bar; who denying to bring his Priſoner, a new Writ of Habeas Corpus was awarded, and the Warden was committed to the Serjeant, with this Order, That if that Writ were not executed, that then he ſhould be deliver'd over to the Lieutenant of the Tower, as the Houſes Priſoner. 8 Maij, The Serjeant was ſent with his Mace to the Fleet; the Houſè ſitting, to require the Body of Sir Thomas Shirley: but the Serjeant being deny'd, a Warrant was made to the Serjeant to deliver the Warden of the Fleet to the Lieutenant of the Tower, to be kept cloſe Priſoner. 11 Maij, The Warden was again ſent for, and brought to the Bar, and refuſing to deliver up his Priſoner; he was committed to the Place call'd the Dungeon or Little Eaſe in the Tower. 14 Maij, A new Warrant was order'd for a new Writ of Habeas Corpus, and that the Serjeant ſhou'd go with the Writ; that the Warrant ſhou'd be brought to the Door of the Fleet by the Lieutenant himſelf, and there the Writ to be deliver'd to him, and the Commandment of the Houſe to be made known to him by the Serjeant, for the executing of it; that in the mean time the Warden to be preſently committed to the Dungeon, and after to be return'd thither again. 18 Maij, The Warden did deliver Sir Thomas Shirley, and ſo was not put into the Dungeon. 19 Maij, He attending at the Door, was brought in to the Bar, where, upon his knees, confeſſing his Error and Preſumption, and profeſſing he was unfeignedly ſorry, he had ſo offended this Honourable Houſe; upon that Submiſſion, by direction of the Houſe, the Speaker pronounced his Pardon and Diſcharge, paying ordinary Fees to the Clerk, and to the Serjeant.

Mr. Belgrave, Sir Simon d'Ewes Jour. 688. Col. 1. being a Member of the Houſe of Commons, had an Information exhibited againſt him in the Star-chamber by the Earl of Huntington. An Order was enter'd, as the Act of the Houſe. 43 Eliz. 1601. That he ought not to be molested in that Manner.

10 Febr. 4.Ruſh.Coll. 653. Vid. Petyts Miſcell. Parl. p. 107 Car. 1. Whileſt the Houſe was in Debate, the 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 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 Priſon in Newgate: Vide Sir S. d'Ewes Jour. 629. Col. 1. the Serjeant at Arms was preſently ſent to Newgate to bring him to the Houſe, ſedente Curiâ: and being brought to the Bar with his Keeper, was diſcharged by Order of the Houſe from his ſaid Keeper, and from his Impriſonment.

1 Julij 1607. Memorials, 99. John Paſmore the Marſhal's man being ſent for, and brought to the Bar, for arreſting John Jeſſop Waterman, Servant to Sir Henry Nevil a Member of the Houſe; he deny'd that he knew he was Sir Henry's Servant, until afterward; notwithſtanding he took an Aſſumpſit from him to anſwer the Action. The Houſe thought fit to commit him to the Serjeant, till the Houſes Pleaſure were further known, and till he had diſcharged the Aſſumpſit, and paid the Fees.

17 Junij 1609.Ibid. Upon a Report from the Committee for Priviledges, that a menial Servant of Sir Robert Wroth was arreſted eight days before this Seſſion; the Serjeant was ſent for the Priſoner, and the Serjeant that made the Arreſt, one King, who follow'd it, and Fiſher, at whoſe Suit he was arreſted.

4 Junij 19 Jac. 1.Id. 100. Johnſon, a Servant to Sir James Whitlock, a Member of the Commons Houſel, was arreſted upon an Execution by Moor and Lock: who being told that Sir James Whitlock was a Parliament man; Fulk, one of the Proſecutors ſaid, He had known greater mens men than Sir James Whitlock taken from their Maſters Heels in Parliament time. This appearing, Lock and Moor were call'd in to the Bar, and by the Judgment of the Houſe were ſentenced. Firſt, That at the Bar they ſhou'd ask Forgiveneſs of the Houſe, and of Sir James Whitlock,Petyt's Miſcel. Parliament. 118. on their knees. Secondly, That they ſhou'd both ride upon one Horſe bare-back'd, back to back, from Weſtminſter to the Exchange, with Papers on their Breasts, and this Inſcription, For arreſting a Servant of a Member of the Commons Houſe of Parliament; and this to be preſently done ſedente Curiâ: which Judgment was pronounced by Mr. Speaker againſt them at the Bar upon their Knees.

28 Apr. 22 Jac. 1.Memorials, 100. A Warrant was order'd to be iſſued by the Speaker for a Writ of Priviledge, to bring up Andrew Bates Servant to Mr. Richard Godfrey of the Houſe, in Execution with the Sheriff of Kent, at the Suit of one Hunt.

This Priviledge doth take place by Force of the Election, and that before the Return be made, as appears in the Caſe following.

19 Nov. 1601.Id. 107, 108. Vide Sir S. d'Ewes Jour. 642. Col. 2. 643. Col. 1. Vid. Petyts Miſcell. Parl. 119. Upon Information to the Houſe, that one Roger Boſton Servant to — Lanckton, Baron of Walton, who (upon credible Report of divers Members of the Houſe, was affirmed to be choſen a Burgeſs for the Borough of Newton in Lancaſhire, but not yet return'd by the Clerk of the Crown) had been, during that Seſſion of Parliament, arreſted in London, at the Suit of one Muſcle: the ſaid Muſcle, together with the Officer that made the Arreſt, were ſent for by the Serjeant, and brought to the Bar, and there charged by Mr. Speaker, in the Name of the whole Houſe, with their Offence herein: and having been heard, Boſton was order'd to have Priviledge, and to be diſcharged of his Arreſt and Impriſonment; and the Offenders for three days committed to the Serjeant, and order'd to pay ſuch Charges to Beſton as the Speaker ſhall ſet down, and their Fees.

6 Martij. 1586.Memorials, p. 108, 109. Sir. Simon d'Ewes Jour. 410. Col. 1.414. Col. 2. This day William White, brought to the Bar for arreſting Mr. Martin a Member of the Houſe, made Anſwer, That the Arrest was made above fourteen days before the beginning of the Parliament: the Houſe thereupon appointed a Committee to ſearch the Precedents. And March 11. the Committee made their report of Mr. Martin a Member of this Houſe, arreſted upon mean Proceſs by White above twenty days before the beginning of this Parliament holden by Prorogation (miſtaken for Adjournment) and in reſpect that the Houſe was divided about it in Opinion, Mr. Speaker with the conſent of the Houſe, the ſooner to grow to ſome certainty of the Judgment of the Houſe in this Cauſe, moved theſe Queſtions to the Houſe, viz.

Firſt, Whether they would limit a time certain, or a reaſonable time, to any Member of the Houſe for his Priviledge. The Houſe anſwered a convenient time.

Secondly, Whether Mr. Martin was arreſted within this reaſonable time. The Houſe anſwered Tea.

Thirdly, If White ſhould be puniſhed for arreſting Martin. The Houſe anſwer'd No; becauſe the arreſt was twenty days before the beginning of the Parliament, and unknown to him that would be taken for reaſonable time. But the principal cauſe why Martin had his Priviledge, was, for that White the laſt Seſſion (miſtaken for Meeting) of Parliament arreſted Mr. Martin, and then knowing him to return'd a Burgeſs for this Houſe, diſcharged his Arreſt.

And then afterwards Mr. Martin again returning out of his Country to London to ſerve in this Houſe, Mr. White did again arreſt him, and therefore this Houſe took in evil part againſt him his ſecond Arreſt, and thereupon judged that Martin ſhould be diſcharged of his ſecond Arreſt out of the Fleet by the ſaid Mr. White.

12 Martij 1606 Complaint was made by Mr. James a Burgeſs of Parliament, Id. 102. That his Horſe ſtanding at his Inn was taken by the Poſt-maſters Servant: both the Poſt-maſter and his Servant were ſent for, and brought to the Bar. Moreton the Poſt-maſter appearing to be ignorant of what his Servant had done, and diſavowing it, was by order of the Houſe diſcharged: but upon the Teſtimony of a Witneſs at the Bar, that he told the Servant, when he took the Horſe, that a Member of Parliament was owner of it, the Servant was committed.

In Dec. 1606. Thomas Finch, Memorials, p. 101, 102. a Servant to Sir Nicholas Sandys one of the Burgeſſes for Quinborough, was Arreſted during the Adjournment; which being conceived to be a great Contempt to the Priviledge of the Houſe, an Habeas Corpus was awarded to bring him to the Houſe, and he was accordingly brought, and alſo one Knight, who procured the Arreſt, and Harriſon the Yeoman. The Excuſe was, that Finch was an Attorney at Law: but it being avow'd by Sir Nicholas Sandys, That Finch lay in his Houſe, ſolicited his Cauſes, and received Wages from him. And it being inſiſted on, that all menial and neceſſary Servants are to be priviledged, and inſtance given of a Precedent of the Baron of Waltons. Solicitor, and Huddleſton's Solicitor in the time of Queen Elizabeth. Upon the Queſtion, Finch was priviledged, and deliver'd, according to former Precedents.

During the Adjournment, Ibid. 102. a Suit was proſecuted in the Court of Wards againſt Nicholas Pots Eſq and Francis Wethered Gent. Committees of a Ward which concerned Mr. Nicholas Davys, Servant to the then Speaker, as Aſſignee of the Ward. The Speaker writ a Letter to the Court, to make known, That he 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 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 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. 〈1 page duplicate〉〈1 page duplicate〉

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 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 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 Breach of Priviledge, and a ſufficient Guard wherein they might confide.

The Lords cannot proceed againſt a Commoner, Selden's Jud. p. 84. but upon a Complaint of the Commons.

APPENDIX. The Report of a Caſe happening in Parliament in the firſt year of K. James the Firſt, which was the Caſe of Sir Francis Goodwyn, and Sir John Forteſcue, for the Knights Place in Parliament for the County of Bucks. Tranſlated out of the French.

IN this Caſe, after that Sir Francis Goodwyn was elected Knight, with one Sir William Fleetwood, for the ſaid County, which Election was freely made for him in the County, and Sir John Forteſcue refuſed, notwithſtanding that the Gentlemen of the beſt Rank put him up; The ſaid Sir John Forteſcue complained to the King and Council Table, (he being one of them, to wit, one of the Privy Council) that he had been injuriouſly dealt with in that Election, which does not appear to be true: But to exclude Sir Francis Goodwyn from being one of the Parliament, it was objected againſt him that he was Outlawed in Debt, which was true; ſcilicet, He was Outlawed for 60 l. 31th of Queen Elizabeth, at the Suit of one Johnſon; which Debt was paid: and alſo the 39th of Eliz. at the Suit of one Hacker for 16 l. which Debt was alſo paid: and that notwithſtanding, the King by the Advice of his Councel at Law, and by the Advice of his Judges took Cogniſance of theſe Outlawries, and directed another Writ to the Sheriff of the ſaid County to elect another Knight in the place of the ſaid Sir Francis Goodwyn, which Writ bore Date before the Return of the former.

And this Writ recites, That becauſe the ſaid Sir Francis was Outlawed, prout Domino Regi conſtabat de Recordo, and for other good Conſiderations which were well cogniſant to the King, and becauſe he was Inidonious for the Buſineſs of the Parliament, therefore the King commanded him to elect one other Knight in his room, which Writ was executed accordingly, and Sir John Forteſcue elected.

And at the day, to wit, the firſt day of the Parliament both Writs were return'd, the first with the Indenture ſealed, between the Sheriff and the Freeholders of Bucks, in which Sir Francis Goodwyn and Sir William Fleetwood were elected Knights for the Parliament; and alſo the Sheriff returned (upon the Dorſe of the Writ) that the ſaid Sir Francis was Outlawed in two ſeveral Outlawries, and therefore was not a meet Perſon to be a Member of the Parliament Houſe: The ſecond Writ was returned with an Indenture only, in which it was recited, That Sir John Forteſcue, by reaſon of the ſecond Writ, was elected Knight.

Both theſe Returns were brought the third ſitting of the Parliament to the Parliament Houſe by Sir George Copping being Clerk of the Crown.

And after that the Writs and Returns of them were read, it was debated in Parliament, Whether Sir Francis Goodwyn ſhould be received as Knight for the Parliament, or Sir John Forteſcue.

And the Court of Parliament, after a long Debate thereupon, gave Judgment That Sir Francis Goodwyn ſhould be received; and their Reaſons were theſe:

First, Becauſe they took the Law to be, that an Outlawry in Perſonal Actions was no Cauſe to Diſable any Perſon from being a Member of Parliament: and it was ſaid, That this was Ruled in Parliament 35th of Queen Elizabeth in the Parliament Houſe in a Caſe for one Fitz-Herbert.

Another Preſident was 39 H. 6.

Secondly, The Pardons of the 39th of Queen Eliz. and 43 Eliz. had pardoned thoſe Outlawries: and therefore, as they ſaid, he was a Man able againſt all the World, but againſt the Party Creditor, and againſt him he was not. But in this Caſe the Parties were paid.

Alſo Thirdly, It was ſaid, that Sir Francis Goodwyn was not Outlawed, becauſe no Proclamation was iſſued forth to the County of Bucks, where he was Commorant and Reſiant: And therefore the Outlawry being in the Huſtings in London and Sir Francis Goodwyn being Commoran in Bucks, the Outlawry (no Proclamation iſſuing to the County of Buks) was void by the Statute of the 31th of the Queen, which in ſuch Caſes makes the Outlawries void.

Fourthly, It was ſaid that the Outlawries were 1. Againſt Francis Goodwyn, Eſq 2. Againſt Francis Goodwyn, Gent. and 3. The Return was of Francis Goodwyn, Kt.

Et quomodo conſtat, that thoſe Outlawries were againſt the ſaid Sir Francis Goodwyn; for theſe Reaſons alſo they Reſolved that the Outlawries were not any matter againſt Sir Francis Goodwyn to diſenable him to be a Knight for the County of Bucks.

Fifthly, It was ſaid, That by the Statute of 7 H. 4. which preſcribes the manner of the Election of Knights and Burgeſſes, it is Enacted, That the Election ſhall be by Indenture between the Sheriff and the Freeholders, &c. that the Indenture ſhall be the Return of the Sheriff.

It was alſo ſaid, That the Preſidents do warrant this Judgment, videlicet, 1. One Preſident of the 39 H. 6. where Perſon Outlawed was adjudged a ſufficient Member of Parliament. Another 1 Eliz. and ot that time one Gargrave, who was a man learned in the Law, was Speaker, and of the Queens Council. 2. Another was the Caſe of one Fludd in the 23th of the Queen, who, being Outlaived, was ••• 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 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 they ſent to the King to inform him of it: but before their Meſſengers came to the King, two of the Privy Council, ſcilicet, Sir John Stanhope, and Sir John Herbert, were ſent to the King by the Lower Houſe, to inform him that they had heard that his Grace was diſpleaſed with the Houſe for their Sentence given for Sir Francis Goodwyn, as well as in the Matter of the Sentence, which was, (as they heard) ſaid to be againſt Law; as alſo for the manner of their Proceedings, being done haſtily, without Calling to it either Sir John Forteſcue, or his Council, or without making his Grace acquainted with it.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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