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

Just Published.
Parliamentary and Political TRACTS, written by Sir ROBERT ATKINS, Knight of the Bath, and late one of the Judges of the Court of Common-Pleas: Containing,

I. THE Power, Jurisdiction, and Privilege of Parliament; and the Antiquity of the House of Commons asserted: Occasioned by an Information in the King's-Bench by the Atorney-General, against the Speaker of the House of Commons.

II. An Argument in the great Case concerning Election of Members to Parliament, between Sir Samuel Barnardiston Plantiff, and Sir William Soame, Sheriff of Suffolk, Defendant, in the Court of King's-Bench, in an Action upon the Case, and afterwards by Error sued in the Exchequer-Chamber.

III. An Enquiry into the Power of dispensing with Penal Statutes. Together with some Animadversions upon a Book writ by Sir Edward Herbert, Lord Chief Justice of the Court of Common-Pleas, intitled, A short Account of the Authorities in Law; upon which Judgment was given in Sir Edward Hale's Case.

IV. A Discourse concerning the Ecclesiastical Juris­diction in the Realm of England.

V. A Defence of the late Lord Russels's Innocency, by way of Answer or Confutation of a Libellous Pam­phet, intitled, An Antidote against Poison, with two Letters of the Author of this Book upon the Subject of his Lordship's Tryal.

VI. The Lord Russel's Innocence further defended, by way of Reply to an Answer, intitled, The Ma­gistracy and Government of England vindicated.

VII. The Lord Cheif Baron Atkins's Speech to Sir William Ashurst, Lord Mayor Elect of the City of Lon­don, at the Time of his being sworn in their Majesties Court of Exchequer.

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

Shewing their Antiquity, Names, Kinds, and Qualities.

  • Of the three Estates; and of the Dignity and Excellen­cy of Parliaments, their Power and Authority.
  • Of the Election of Members of the House of Commons in general, their Privilege, Qualifications, and Duties.
  • Of the Electors; and their Rights, Duties; and Man­ner of Elections.
  • Of the Returns to Parlia­ment; the Sheriff's and other Officers Duty therein.
  • Of the Manner of Election of the Speaker; and of his Business and Duty.
  • Of the Manner of passing Bills, and the Orders to be observed in the House of Commons.
  • Of Sessions of Parliament; as also of Prorogations and Adjournments: To­gether with the proper Laws and Customs of Par­liaments.

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. I.

The SECOND EDITION, with Large Additions.

LONDON: Printed for J. STAGG, in Westminster-Hall.

THE PREFACE.

IT must be confessed, that Lex Par­liamentaria, or Parliamentary Law, cannot be meant or intended to signify any Prescription or Application of Laws to that Power, which in itself is boundless, and unlimited: This Collection, therefore, only shews what Parliaments have done, and not what they may or ought to do. The Parliament alone can judge of such Mat­ters as concern their own Rights, Autho­rities, or Privileges.

And yet, seeing the Phrase, Parlia­mentary Law, or Law of Parliaments, has for some Ages past obtained,Lord Coke, Sir Matth. Hales's &c. (and that too among Authors of great Name,) I hope the present, or any future Parlia­ment, will not censure me for a Word (misapplied,) or for endeavouring to il­lustrate that Authority which is impro­perly denominated Parliamentary Law. The Parliament itself is, no doubt, pro­perly to be stiled, The fundamental Law and Constitution of this Kingdom, as it comprehends all Legal Powers whatso­ever.

But as God and Nature influenced the Voice and Desires of the People to this Form of Government by Parlia­ments, so it must be confessed that the same supream Power also influenced their Voices and Desires, to establish this Par­liamentary Government for the Safety and Preservation of the Governed, and thereby constituted the Salus Populi to be the supream Law; to whose Support all other Laws, Powers, and Authorities ought to tend. 'Tis for this End Kings are created; and for this End Parlia­ments assemble; that so the Polity and Government of the Nation may be admi­nistered with Honour and with Safety, for the Good of the whole Community.

Nor can it be denied, but that Parlia­ments in former Times esteem'd it as their most incumbent temporal Du­ty, to oversee, recognize, and resirain, within the Bounds of Law, the Commands and Acts of Kings; and to take care that that great and honourable Trust reposed in the Hands of the Prince, for the Good of the People, might be rightly and duly administered, and not perverted or abused to the Invasion of their Rights, or the Sub­version of the Constitution.Brac, p. 34 Flet p. 2.17. vide hic, p. 89. 'Twas the Sense of this Duty of Parliaments in­duced both Bracton, an eminent Judge un­der King Henry III. and Fleta, a learned [Page]Lawyer in King Edward I's Time, to re­cord this great Duty of Parliaments to succeeding Ages.

And from this very Motive it was,See the Preface to Privilegia Londini. p. 6, 7. that our antient Parliaments were so cau­tious, as to oblige our Kings to swear at their Coronations, Concedere justas Leges quas vulgus elegerit; That they would grant such just Laws as the common Peo­ple should choose. (See this Oath admirably well explained in Sadler's Rights of the Kingdom. Page 71, 88, 91. &c.)

From all which, and much more, that may be added, I think it clearly appears, That both Kings and Parliaments, Lords and Commons, and all Laws of Govern­ment whatsoever, were in their first In­tention instituted and ordained for the sole Good and Benefit of the People; And where­ever all or any of them are perverted from that View, they loose the Nature of their first Intention, and ought to receive a con­trary Denomination.

And from the foregoing Particulars, I at present apprehend, that the Lex Parlia­mentaria, or Fundamental Law of Govern­ment, in this Nation, was not originally founded on any Capitulation or Compact between the King and the People, as is usually done in Contracts of Bargains and Sales, or other Purchases; For that would infer a separate Interest between Prince and People. But who will say, that a British Monarch can by Law have a dis­tinct Interest from his People?

Also the mutual Obligation that is esta­blished between the Prince and People by the Laws of this Kingdom, have laid an un­surmountable Bar against any such Capi­tulation, or contracting Project: For by the original and inherent Nature of our Govern­ment, there is such amutual Relation and po­litical Connection created between the King and his People, as in that natural Relation and Connection between the Head and the Members of the Body; so that in neither In­stance can the Head say to the Members, I have no need of you, &c. This mutual Re­lation between Prince and People seems to have been interwoven in the fundamental Being, and impressed in the very Heart of our Constitution, &c.

The Publisher here thinks fit to declare, That this Book has received no little Advan­tage from a Manuscript of that judicious and learned Judge, the late Mr. Justice Price, who, having been many Years a Member of the House of Commons, had made divers curious historical Collections, with several Notes and References relating to the Sub­ject Matter hereof: And in this Edition, the Reader may find (collected from au­thentick Records and Histories) all that is necessary to be known, touching the Rights and Privileges of Parliaments; and, in a great Measure, the legal Prerogatives of the Prince, and just Liberties of the Peo­ple.

The CONTENTS.

  • CHAP. I. Of Parliaments in general: Shewing their Antiquity, Names, Natures, Kinds, and Qualities, British, Saxon, &c. Ordinarily, an­nual, and without Summons: Extraordinary, on Sum­mons pro arduis, &c. Of the three Estates; Bi­shops no essential Part, excluded, elected, created by Patent. Commons ever represented, and how. Their Right to a Free Election of all Magistrates, &c. and Consent to all Aids and Taxes. This Right invaded by the Norman Kings, William I. and II. Reslored by Henry I. Of English Parlia­ments in his Time; who the Magnates and Barones Regni then were. Of Coronation Oaths, &c. Page. 1.
  • CHAP. II. Of the Dignity and Excellency of Par­liaments. The Supream Power of the Kingdom; and (when Free;) Protectors of the People's Rights, and Preservers of the legal Government and Con­stitution. Of the three Estates; and to what End as­sembled. Lords and Commons anciently sate toge­ther. The highest Court of Justice, &c. Page. 49.
  • CHAP. III. Of the Power and Authority of Par­liaments, superior to the Law, may judge the Greatest; remove evil Ministers, redress Grievances of all Kinds: Their three Powers. viz. Consultive, Le­gislative, and Judicial; their absolute Power over all Persons, &c. Page. 66.
  • CHAP. IV. and V. Of the Power, Autho­rity, and Jurisdiction of the House of Peers, distinct from the Commons. Page. 90, 101.
  • CHAP. VI. and VII. Of the seperate Powers and Authorities of the House of Commons, both in general and in particular Cases. Page. 109, 114.
  • CHAP. VIII. Shews their Power over their own Members, and how executed &c. Page. 136.
  • CHAP. IX. Treats of the Election of Members of the House of Commons in general, and of the several Statutes relating thereto. Page. 149.
  • CHAP. X. Shews who may be Electors, and the [...]r [Page]Rights, Duties, and Manner of Election, with the Statutes and Oaths referring thereto. Page 156.
  • CHAP. XI. Who may be elected; their Qualifi­cations and Duties, &c. with such Statutes, Oaths, &c. as concern the same. Page 180.
  • CHAP. XII. Of the Returns to Parliament, and of Amendments of Returns; the Sheriffs and other Officers Duty therein, with such Statutes and Oaths as relate thereto. Page 226
  • CHAP. XIII. and XIV. Of the Manner of Elec­tion of the Speaker of the House of Commons, and of the Business and Duty of the said Speaker. Page 263, 272.
  • CHAP. XV. and XVI. Of Orders to be observed in and by the House of Commons, or the Members thereof. Page 278, 285.
  • CHAP. XVII. Of the Manner of passing Bills, &c. in the said House. Page 306.
  • CHAP. XVIII, XIX, and XX. Concerning Committees in general; as also of the Orders, Powers, and Proceedings of Grand Committees; and of Standing Committees, &c. Page 327, 336, 341,
  • CHAP. XXI. Of Sessions of Parliament; what makes a Session; as also of Prorogations and Ad­journments. Page 347, Note.
  • CHAP. XXII. Of the proper Laws and Customs of Parliament; and of Acts and Ordinances. Page 358.
  • CHAP. XXIII. Of the Privilege of Parliament, with the Statutes for regulating it, &c. Page 379.
  • The APPENDIX; being the Case of Sir Francis Good­wyn, admitted a Member, though returned outlawed, &c. Concluding with divers additional Pariculars relating to the Privileges and Duties of Parlia­ments. Page 415.

Lex Parliamentaria: OR, A TREATISE OF THE LAW and CUSTOM OF THE PARLIAMENT of England, &c.

CHAP. I. Of Parliaments in General, their Defi­nition, constituent Parts, &c. with a brief Inquiry into the Original and Nature of our British, Saxon and Nor­man Parliaments.

THE Word Parliament, Minshew, in verbo Parlamt. in French, Parlement, and in Spanish and Italian, Parli­amento, is,Spelm. Gloss. ver­bo Debate See Coke on Littl. p. 110.164. in its principal Part, deriv'd from the French, Parler, to speak, and (as Lord Coke and some Others conceive) The General Coun­cil, [Page 2]or National Assembly of this King­dom is so call'd;Spelm. Gloss. in verbo Par­lament. Hales of Parlia­ments, 122. Elsing of Parlia­ments, 167. 4 Inst. 8. Bohun's Collecti­on, 353. because every Member thereof, should, in the Matters there de­bated, Parler la Mente, i. e. Freely speak his Mind: And tho some Authors have oppugned this Derivation, yet tis evident from the very Nature and Es­sence of a Parliament, That every Mem­ber thereof, ought to speak his Mind freely, in what relates to the Publick Welfare. And this Freedom of Speech, is now constantly claimed by the Speaker of the House of Commons, at the first Meeting of every New Parliament, and in insisted on as a Claim of Right.

The Word Parlament, is, in France, now taken for one of those High Courts of Justice in that Kingdom,Minshew ut supra. See Vin­cent Lu­panus, lib. 2 c. Par­liament, No. 28. wherein Men's Causes and Differences are publick­ly heard and determined, without fur­ther appeal. Of these Parliaments there are Seven, viz. 1. Paris (now superiour to the Rest.) 2.Vide Du Haillan Pasquier, &c. of the Fr. Parle­ments. Tholouse. 3. Grenoble. 4. Aix. 5. Bourdeaux. 6. Dijon. 7. Roan. whereto some add an 8th, viz. Rhenes in Bretaigne.

But with us in England (or rather Great Britain) The universal Assembly of all the Estates of the Kingdom (i. e.) The King,Sir Tho. Smith, De Repub. Angl. lib. 2. c. 1.2. Lords and Commons (wherein every Freeman of the Kingdom is said to be present, either in Person or by Repre­sentation, [Page 3]and who are met together for debating of Matters touching the Com­monwealth) especially for the enacting of Laws and Statutes) is properly called a Parliament; Cro. Jur. f. 1. &c. Cambd. Brit. 6. &c. 4 Inst. 1. and such Laws and Sta­tutes, when agreed on, are significantly term'd Acts of Parliament.

Indeed, various Authors,Of the three E­states, viz. 1. King. Cotton's Records, 709.710. 4 Inst. 1. Hales of Parlia­ments, 1. Finch's Nemotec­nia, lib. 2. c. 1.2. The Lords. Sadler's Rights of the King­dom, p. 79. to 93. Kelway's Reports, 184. Stamf. P. Cor. 153. See Bag­shaw's Reading, p. 17. to 21. have had va­rious Sentiments (and even Acts of Par­liament differ) about the three Estates, some (alledging the King to be the Head of, but not included in the Number) as­sert, That the three Estates are, 1st, The Lords Spiritual. 2dly, The Lords Tem­poral. And 3dly, The Commons; but Others more rationally say, The King is one of the three Estates, which compose the Parliament; and that the second Estate, is constituted of both the Spiri­tual and Temporal Lords jointly; for (say they) Tho the Archbishops and Bi­shops are denominated Spiritual, yet they sit in Parliament as Temporal Barons on­ly, i. e. By Reason of the Temporal Ba­ronies annexed to their Bishopricks, and not as they are Spiritual Persons. And they further urge, in Confirmation of their Opinion, 1. That no Bishop, not­withstanding his Election, Consecration, Confirmation, &c. can be a Lord of, or sit in Parliament, till the King has gran­ted to him the Temporalities of the Bi­shoprick. [Page 4]2.(N. B. Tho this Stat. was repealed by Q. Ma­ry, yet that Re­peal was repealed by Q. Eli­zabeth, &c. As the Parliamt. at Bury, 24 E. 1. 1 Eliz. all the Acts about Re­ligion pas­sed Dissen­tientibus Episcopis. See Jour­nal Dom. Procer. 11 H. 7.27. Bro. Par. 107. Kelway 184. 3 The Commons. See here­after. See Sad­ler's Rights, p. 79. to 93. That by Virtue of the Stat. 1 E. 6. c. 2. still in Force, The King may constitute Bishops by his Letters Patent only, without any Election or Consecrati­on; and 3. That Parliaments have been, and may be held, Excluso Clero, exclusive of the Bishops and Clergy; and that some of our most beneficial Statutes have been enacted, whereto the whole Body of the Clergy dissented; all which, they say, prove the Bishops to be no essential Part, or any of the three Estates of Par­liament. And in Trinity Term 7 H. 8. tis agreed by all the Judges of England, That the King may well hold his Parlia­ment by himself and his Lords Temporal and Commons, without any Bishops or Spi­ritual Lords at all.

The third Estate of which we shall herein principally treat, is on all Hands confess'd to consist of the Knights, Citi­zens and Burgesses, with the Barons of the Cinque-Ports, all which being at this Day elected by the free Votes of the Freemen of Great Britain, are properly esteem'd the Representative Body of the People, and constitute that Part of the Parliament usually called the House of Commons. (N. B. The antient Modus Tenendi Parl. reckons up six Degrees, or Orders of Parliament; but that Divi­sion cannot be denominated six Estates.)

The Numbers of the Commons, Numb. of Commons formerly. See Mr. Willis's Preface to his 1 Vol. of Net. Parl. Prynn of Parlia­mentary Writs. I find to have been formerly variant, according as the Sheriffs of Counties, (from what Mo­tive is uncertain,) were pleased to direct their Precepts, to the several Cities or Burros, within their respective Counties; or as the same Sheriffs made their Re­turns thereupon: But indeed, another Cause of this Variation, was, That it was usual for the Prince, on his Accession to the Throne, to grant Charters to antient Demesne Vills, and other popular Towns, thereby erecting 'em into free Burros, and this consequently gave 'em a Right to be represented in Parliament. And by this Ar­tifice, among others, the Crown advanced its Interests in the House of Commons.

For it must be confess'd, That by the an­tient Constitution, there were no Represen­tatives of the Commons as Commons in Par­liament, besides the Knights for the Shires, the Barons for the Cinque Ports,Crompt. of Courts, f. 2.3, &c. Stat. 23. H. 6. c. 11. the Citizens for the Cities, and the Burgesses for the ancient Burros only; and that the Elections for all those, were to be made by such Persons only, as were possess'd of Lands or Tenements, held by them as Freeholds, or free Burgage Tenures; which consequently excluded all Villeins and Copyholders,Stat. 12. R. 2. c. 12. Crom. 2.3.4.5. Bro. Ant. Dem. 43 [...] as also Tenants in an­tient Demesne (which were but the King's Villeins) and the Tenants and Dependants [Page 6]of other Lords, Parl. 96. Reg. 261. Nat. Bre. 14. from being either the Elec­tors, or elected of the House of Commons.

Indeed, the Practice of increasing the Number of the Representatives of the Commons,See Bo­hun's Col. per Tot. began very early, viz. Temp. Johan. (if not before) for I find it a Practice of that Prince, to grant usually, in Consideration of Money, &c. Charters to Antient demesne Towns (as generally all Sea-Port Towns were) thereby erecting 'em into free Burroughs; The Re­presenta­tive of London and West. p. 14. 10 p. 21. Spelm. in voce Ma­jor. and hence it was, as I conceive, That Bridport, Dor­chester, Harwich, Helstone, Kingston up­on Hull, and divers other antient de­mesne Towns, came to be erected into free Burros, which originally had no Right of being represented in Parliament.

But whatever Methods were then ta­ken to encrease the Number of the House of Commons, I find their Number to be much the same from the End of H. the 6th's Reign,Fortescue p. 40. to the Beginning of that of H. the 8th, viz. about 300.

  • That H. 8.
    MS. Penes Authorem.
    added to their Number, 38.
  • King Ed. 6. added to their Number, 44.
  • Queen Mary, added to their Number, 25.
  • Queen Elizabeth, added to their Number, 62.
  • King James the 1st, added to their Number, 27.

And King Charles the 1st, about 10. or 12. so that at the Time of the Resto­ration. [Page 7]of King Charles 2. I find their Numbers to have been about 500. But the Commons, about that Time, restrain­ed this mischievous Practice for the Fu­ture, so that they declared the Elections made by Virtue of that Prince's Charters void; and as Chester had been enabled to send two Members for the County, and two for the City, by Virtue of a Sta. 34.35.St. 34.35. H. 8. c. 13 St. 25. C. 2. c. 9. H. 8. so an Act past in the 25 Car. 2. enabling Durham to send four Mem­bers in like Manner, and thus the Num­ber of the House of Commons stood at 513, till the Union of the Kingdoms of England and Scotland, when, by Virtue of the Union Act, St. 5. An. c. 8. forty-five Scottish Members were added, which made the whole Number of that House to be 558, as it now stands.

Mr. Prynn and Others observe,Denomi­nations of Parliam. Prynn's Rights of the Com. &c. p. 99. 99. Spelm. Glossary, in verb. Parlam. & Debata. That our Ancestors had many Expressions and Phrases, which signify'd a Parliamentary Assembly; as Magnates Regni, Omnes Regni Nobiles, Proceres et Fideles Regni, Universitas Regni, Communitas Regni, Discretio Totius Regni, Generale Conci­lium Regni, and many others, varying the Stile in successive Ages, till at length it came to be fix'd in the Word Parlia­ment. See divers Records and Precedents touching this Matter in the Appendix [Page 8]to Mr. Petyt's Miscellanea Parliamen­taria.

Mr. Prynn also says,Prynn's Truth tri­umphing over Fals­hood, &c. f. 69. Petyt's Antient Rights, &c. p. 68. That by many antient Precedents before the Conquest, it is apparent, that all our pristine Synods and Councils, were nought else but Par­liaments; and that our Kings, Nobles, Senators, Aldermen, Wisemen, Knights and Commons, were usually present, and voted in them as Members and Judges.

And Mr. Lambard, Sir Ro­bert At­kyns's Ar­gument, p. 18. see hereafter. in his Archaeion, maintains, That Parliaments were used in the Saxon Times; as in the Time of King Ina, Ann. 712, and other Saxon Princes; and that they then consisted of King, Lords and Commons.

And that the like Assemblies were in Practice among the antient Britons, Rymer's View of Govern. p. 13. 14. &c. Gauls and Germans, and other Northern Nati­ons, may in some Measure appear from those noble Remains of Caesar and Taci­tus: Caesar De Bello Gal­lico, l. 5. p. 87. For the Former, speaking of the Britons, says, Summa Imperii Bellique administrandi Communi Concilio permissa est Cassivellauno; That the chief Power of administring the Government, and Command in War, was by a Common Council (or Parliament) committed to Cassibellan; Tacitus de Mori­bus Ger­manor. &c. and the Latter, treating of the German Customs, De Minoribus Re­bus Principes consultant De majoribus omnes, i. e. That in smaller Matters their [Page 9]Princes only consult or determine;Rymer ut ante. Sadler's Rights, p. 79. but if the affair be weighty, they all consult as in a common Assembly or Parliament. Et quod Reges & Principes audiuntur magis suadendi Authoritate quam juben­di potestate, i. e. that the Prince's Au­thority consisted rather in Persuasion than in Coertion; Et quod Principes, &c. Com­muni Concilio Eliguntur, &c.

But the better to clear this Point, touching national Assemblies, especially those of the Britons and Saxons in this Island; I shall here add the ensuing In­quiry.

The Denominations of a Parliament,Denomi­nation of Parlia­ments. or National Assembly, have been various according to the Language and Phrase of Speech of the several Nations, where Used and Practised:Selden, de Synedriis Lib. 2. c. 4. sect. 1, 2, 11, &c. & Lib. 3. c. 14. & 15. & De Successi­one Pon­tif. c. 12. See Ge­nes. c. 11, 14, 23, &c. Thus the Jews had their Great Sanhedrin, consisting of the Prince, the Rulers of the People, and the Heads of their Tribes and Families; and in this manner we find their Parlia­ments assembled in the Days of Saul, Da­vid, Solomon, Rehoboam, &c.

Nor was Moses the first Modeller of a National Assembly or Parliament; the Scripture itself seems to contradict it; and doubtless there had been something Equi­valent to such collective Consultations from the first Instant of congregated Societies; nay some spiritualizing Heads have stretch'd [Page 10]the Pattern to a Time, antecedent the Ex­istence of Humanity, and almost coeval with Time itself; These (not contempla­ting Oriental Idioms) Derive both the Do­ctrine of the Trinity and the three Estates of Parliament,Genes. c. 1. v. 26. from that uneffated Speech, Let us make Man, &c.

But however heavenly their Conjec­tures are, our inquirers herein must tend another way; and yet to me it seems ap­parent, that Parliaments existed before what the Scriptures Record, i. e. among the Assyrians, Babilonians, Caldeans, Aegyptians, &c. and tis most evident the inspired Legislator confesses himself in a gross Error, by attempting to Go­vern without their Assistance; and there­fore instead of consulting the Divine Oracle, condescends to receive the In­structions of an Arabian, (Compare Exod. c. 18. v. 21, 22, &c. with Deut. c. 1. v. 13, &c. Take yee, i. e. Elect yee, &c.) Jethro was Prince of Midian in Arabia. whereby he now Modelled his Theocracy according to a Parliamentary Plan of Government; Behold an unenlighten'd Shepherd dire­cting and enlightening the illuminated Friend and boasted Companion of God! A Riddle might puzzle our best Divini­ty, and prove it to be not altogether from above.

That the Persians (whose Language and Laws bear no small analogy with our own) had also the like Parliamentary As­semblies, is not only intimated by those [Page 11]Texts which mention the Laws and De­crees of the Medes and Persians, but is Universally confessed by all the Greek and Latin Historians: That noble De­scription of their Government left us by Xenophon, may justly attract our Appro­bation and Imitation;Xenoph. Cyripaed. p. 8. & 20. and their [...], as strongly incline us to desire FREE Parliaments, as their [...] to insist on FREE Elections.

The Greeks had also their [...],Notae ad Smyrneo. Decreta. p. 11, 13, &c. or Conventus Primatum. Where­in not only the Kings and great Men, but even the Commons assented to their Decrees or Statutes, as is Evident from those Marble Monuments, containing the Statutes and Decrees of those Grecian Assemblies, as in that of the People of Smyrna and Magnesia, &c. vide Opera Seldeni, Vol. 2. Tom. 2.

The like Assemblies were in use among the Romans, Paul. Ma­nut. De Senatu Romano Lib. 1. c. 1. and as Paulus Manutius observes, Instituted by Romulus in the Infancy of their Monarchy, and conti­nued in some Degree thro' all the changes of that State. They were call'd in La­tin, Comitia quasi Coitia a coeundo quia coeunt ibi deliberaturi de Salute Repub­licae, i. e. from Assembling or meeting to­gether, because they therein, Assembled to Deliberate for the Good and Safety of the Common Wealth.

Such an Assembly is called in Low Dutch,British Parliamts. See Orig. Jurid. p. 14. Pref. 2. & 4. ad L. L. Ho­cli, i. e. Sub Anno Christi. 1. Rijcs-dach the King's Day. But more properly in High Dutch, or the German Language, Reich-stagh, i. e. Sta­bilimentum Regni. For that it is the chief stay and support of a Kingdom. And that the like meetings were in Practice among the antient Britons, is Evident from the Preface to the Laws of Hoel Dha, who denominated such Assemblies Gynnulleidfa or Cyfrythin-'y Doethjon, i. e. Conventus Legalis, because Laws were therein made and Chyd-Synniedigaeth, i. e. Consessus Magnatum; from whence Mr. Cambden's Error may appear,Camb. Bri­tannia in Wiltshire. who on occasion of the Pillars on Salisbury-Plain translating the British Words into Latin, renders 'em Chorea Gigantum, when they properly signify Conventio Magna­tum, See Bax­ters Bri­tish Glos­sary verbo Laberus. or the Assembly of great Men. That building being apparently Erected for the Use of such an Assembly, there still remaining not only the marks of Di­stinction where the several Orders or States of Parliament Sate;This Au­thors own observati­ons. but very Vi­sible incisions in those Pillars, and divers intermediate Stones for supporters do manifestly prove how, and in what order the Seats or Benches were therein fix'd and placed.

Besides which,Spelman's Gloss. 386. Antiquus Mos suit. ut Sub. Dio & in­tra Sepi­mentum aliquod Militare ob Salutis gratiam convenire compa­genses, &c, ibid. Baxter ut supra. Selden's Janus 93. the Scituation of those Parts being near the Heart of the King­dom, [Page 13](a considerable Motive for Northern Princes, to hold their general Councils and national Assemblies near the midst of their Dominions) as also the Nature of the Place, being on a wide open Plain, and consequently not so liable to either Force or Treachery, as more Popular, or covert Places; with divers other Motives, may rationally induce the old Britons to choose that Place, for the holding of their general Councils, or Parliamentary As­semblies.

Note the several Prefaces to the Laws of Howell Dha, Vid. Cot. Titus. D. 2, & ibid Caligula A. 3. N. 3. who lived near the Time of our Athelstane, whose Laws as well as those of Ina, &c. are apparently derived from British Patterns, run thus, Hoelus Bonus Rex Waltiae convocavit Sextos viros ex Qualibet Centuria ad Domum Albam: Hi erant ex Sapientissi­mis viris Regni; Horum (Sextorum) 4 erant Laici & 2 Scholastici: Advoca­bantur autem Scholastici ne Laici quid­quam Sacris Scripturis contrarium Sta­tuerent, &c. Tum Communi Consilio & consensu Sapientes illic congregati Leges veteres inspexerunt; Quod durum nimis esse videbatur allevarunt, Quod nimis leve fuit aggravarunt Quasdam ex eis ut prius erant reliquerunt alias emenda­runt, alias penitus abrogarunt alias deni­que de novo Statuerunt; L. L. Ho­eli p. 5. & 7. and lastly a [Page 14]Curse is pronounced on that King, or other Persons who should attempt to change any of those Laws, without the consent of a General and full Council or Parliament.

Touching the Saxon Parliaments,Antiq. of Parl. p. 4. Spelman in Voce Wapenta­chia. we may observe that at first all their Coun­cils and Parliamentary Assemblies whe­ther they debated of Peace or War, were as Caesar and Tacitus observe of the Germans, &c. Sub. fremitu armorum.

Their averseness at first to the Britons and their Customs consirm'd them in this practice,Selden's Epinomis, 5 6. till another Species of Christi­anity different from that of the Britons, was introduc'd amongst them, when they soon applyed themselves to more civilized Assemblies and the making of Laws; only Egbert King of Kent, and some of his Successors being too much influenced by Austin the Monk and others of his Order, gave the Clergy opportunity to Usurp over the Rights and Properties of the Laity, and hence all the Laws of Ethelbert, Wilkins LL. Saxon p. 1. to 14. Hlothair, Eadric and Wihtred shew a Manifest partiality to Churchmen, and indeed their general Councils or Par­liaments seem to be composed only of Ec­clesiastics: But after these Ina the West Saxon King, being near of Kin to Cad­wallader, and of British as well as Sax­on Blood, seems to have Established a [Page 15]better Plan of Government, and to have Founded his Parliamentary Assemblies on a British Pattern.

For the Prolegomenon to his Laws runs thus,Wilkins LL. Saxon p. 14. Selden's Janus, 93. Ego Ina Dei Gratio occiduorum Sax­onum Rex, consilio & Doctrina (Suasu) Cenredae Patris, mei & Heddae Episcopi mei & Eorkenwoldae Episcopi mei, et cum omnibus meis Senatoribus, & Senioribus Sapientibus Populi mei, &c. So that his Parliamentary Assembly plainly appears to have been composed of King, Lords and Commons; and as many of his Laws res­pect the Britons as well as the Saxons, so his Parliamentary Assemblies seem to consist of the Representatives of both People, whom he endeavoured to unite in one Body.

As for the Laws of King Alfred, See Wil­kins, ibid. p. 34. tis evident, from the Conclusion of the first Part (or rather the Introduction to the Second) That they were made in a Ge­neral Council or Parliamentary Assembly, in Imitation of the Britons; and here I beg leave to produce my Authorities, which prove, That this King (as well as Ina) took the Pattern of his Laws and Government from the Britons, Wilkins ut supra. induced hereto, as tis probable, by that Relation in Blood he bore to King Ina, whom he stiles, Cognatus meus. See the Notes on LL. Hoe­li, p. 4. But more effectu­ally by the Advice and Persuasion of As­ser Menevensis, who wrote his Life, was [Page 16]one of his chief Counsellors, and a Bri­ton born.

The Author of the Life of King Al­fred, Life of Alfred, p. 96. 97. 98, &c. says, That he compiled his Laws chiefly from those of the Old and New Testament, and after those, added several Matters taken from the Laws of the Tro­jans, Greeks, Hist. Jor­nalen, ad A. D. 1066. Britains, &c. And men­tion is made in the Notes thereon, That he took divers of his Laws from those of Dunwallo Molmutius, an antient Bri­tish King.

And herewith Ponticus Virunnius a­grees,Pon. Vir. l. 3. p. 10. whose Words are, Belinus habens totius Britaniae Dominium Paternas Le­ges, i. e. Molmutianas, confirmavit & a­lias Statuit; Quas (omnes) Gildas Hi­storicus convertit in Latinum;Ib. p. 14. Rex vero Alfredus De Latino in Anglicum Sermo­nem transtulit. See Hyg­den's Po­lychron, l. 1. c. 50. And afterwards he says, Martia etiam (quae fuit uxor Regis Bri­tonum, Guitellini) condidit Leges, quae Martiana Lex dicebatur, quas Rex Al­vredus inter caetera transtulit in Saxoni­cam Linguam.

But more particularly Mr. Dugdale, Dugdal. Mon. v. 1. p. 32. Sub Ann. S 2. & vide ib. p. 40. has, from an antient MS, given us this Passage, viz. Leges Britonum Rex Al­vredus transtulit in Anglicum quae tunc dicebantur Leges Alvredi, & Multos Li­bros transtulit eodem modo. Iste instituit [Page 17]Hundredos & Tythingas (these are known to be of British Original,Sherin­gham, p. 125. 126. &c.) See al­so touching this Matter, Sheringham, De Anglorum Gentis Origine. Who further observes, That many Words, introduced into the Saxon and English Laws, are of British Original; as Murder, Denizon, Rout, &c.

And hence the Author of the Notes on the Laws of Howel Dha, LL. Hoe­li, p. 4. has justly remark'd, That Alfred learnt the Parti­tion of Shires, Hundreds, &c. from Asser Menevensis, a learned Briton.

Hollinshead also, in his History,Hollinsh. Part 1. p. 15. or Chronicle, speaking of the Laws of Dun­wallo Molmutius, says, That King Al­fred translated them into English, and inserted them in his Body of Laws. And Mr. Taylor, in his Treatise of Gavel­kind, Hist. Ga­velkind, p. 52. 53. & N. B. ib. p. 49. says, That both Ethelfred and Al­fred, translated the Welch Laws, and ex­presly affirms, That the Saxons had their Laws from the Britons: And if so, we may well conclude, That they had the Modus Condendi Leges (or Method of enacting Laws in a Parliamentary Assem­bly) from them also.

But a Question has arisen, how far the Commons were a constituent Part of those Assemblies, in the Time of the Saxons; Magnates & Proce­res, in­clude the Commons, Vide Post. 34. and it must be confess'd, That generally those Councils are said to consist of the [Page 18]King and his Bishops,See Brady of Burros, and his Introdu­ction. and the Wisemen, or (Magnates) Great Men only; or perchance sometimes with the Words Seniores Populi added (as in Ina's Laws) But whether the Commons were present, either in Person, or by Representation, is, in the Opinion of some Inquirers very doubtful.

Now,Lambard, LL. Sax. p. 26. 27. in Order to clear this Doubt, it will be necessary to consider, who were those Magnates, and Seniores, or Sapi­entiores Populi, and how they came to be so denominated.

And first,Wilkins, LL. Sax. p. 96. 97. Post. 35. I am of Opinion, That the Words Magnates & Seniores, did in­tend not only those which were Rulers or Governors of Counties and Hundreds, either Civil or Military, as were the Al­dermen of Counties, which we call Earls, and the Heretoges of Counties (usually rendred Duces, Ibid. 204. 205. because they headed the People in War (and were then as our Lords Lieutenants, but of far greater Authority) But, That they also com­prehended other, Temporal Magistrates, as also the Bishops and Rulers of the Church; for that it appears, those Words, Magnates & Seniores, or Senatores, included the chief Rulers, Magistrates and Officers of the People, in all Affairs Civil, Military and Ecclesiastic; and it appears, That these generally constituted the Wittenage­mote, or Saxon Parliament.

Indeed, on extraordinary Occasions,See Saxon Chron. An. 1055. And the Beadman­ealre Wi­tenage­mote, i. e. Et indi­ctus fuit omnium Procerum Conven­tus, be­fore Mid-Lent. This in­cluded the Commons and was by Reason of the ex­traordina­ry Busi­ness then there transacted the Commons, i. e. their lesser Thanes, or Lords of Manors, as also the Representa­tives of Cities or Burros, did in Person appear there likewise. But if we rightly consider the Model of the Saxon Govern­ment, we shall find, That, except in such ex­traordinary Cases, it would be a vain and fruitless Thing for the Commons to ap­pear in Person at all their Assemblies of the Magnates Regni, seeing those Mag­nates, were, in Truth, the Peoples ordi­nary Representatives, being elected and fully instructed by the Commons, about such Affairs as related to them.

For the Constitution of the Saxon Go­vernment, was such, as made all the les­ser Assemblies of the People, for the Election of Magistrates, and Distribution of Justice, to have a Connection with, and Dependance on some higher and more honourable Convention,Wilkins ut supra. Lambard, ut supra. to whom there lay a Representation and Appeal, from the inferior Convention; in such a Man­ner, as, That every inferior legal Con­vention, was, as it were, a lesser Parlia­ment, which had some other superior Par­liament to appeal to: So the higher As­semblies had the Inspection and Controul of what was transacted in the next sub­ordinate Conventions.

And hence it appears,Spelman, 540. That the Saxon County-Courts, the Hundred-Courts, or Wapentakes, and even the Court-Barons, or Manor-Courts, were as much Parlia­mentary Assemblies within their respe­ctive Precincts and Jurisdictions, as the Wittenagemote, or Assembly of Great Men was for the whole Kingdom. Thus, in ordinary Cases, there was no Occasion to apply to the superior Parliament,See Mir­ror, cap. 5. sect. 1. Parliamts. to be held at London twice yearly, &c. i. e. Whether the King summon'd 'em or not and as Sadler, p. 50. Licet Rex sit absens, &c. Note, the Inferior Courts were held 12 Times yearly, on [...] Days Notice; but not the Supe­rior. Wilkins Sax LL. 205 c 2 when the inserior Parliament could, and usually did, provide a Remedy.

But there are two Things especially remarkable in the Oeconomy, or Conne­ction of the Saxon Plan of Government, which will give us great Light into the Nature of their Folkmotes, and Witte­nagemotes, or Parliaments, viz.

1st, That all their Folkmotes, or Coun­ty Assemblies, being generally held twice yearly, at certain particular Places, and on certain stated Days, or Times in the Year, there was no Occasion for any special Notice to be given of, or any Summons to those Assemblies, no more than for the Terms at this Day. Every Freeman, whose Duty it was, attended there in Person, or by Representation, and that under a Mulct or Penalty, as may be seen in the Saxon Laws, relating to this Matter.

Thus the Free-Tenants of Manors,Spel. Glos. in verbis Manor, Turnus, Comitatus, &c. by their Lord or Steward, the Burroholders by the Head-Burros, and the Freemen in each Tything by their Tienmantale, or Representative, attended at the Hun­dred Courts, and those of the Hundred, attended at the County Courts, by their Hundreders, &c. And those of the Coun­ty (as Earls and Bishops, of the respe­ctive Counties) attended the Witenage­mote in this Manner, viz. The Courts of Manors and Tythings, always ended be­fore the Wapentacks, or Hundred Courts began, and these ended just before the Folkmotes, or County Courts began, and these last just before the ordinary Wite­nagemote, or Grand Parliamentary As­sembly began.

By this Method,See 32d Law Ed. Conf. a certain Connection and Dependance of all inserior Courts, on the next Superior was established; so that there lay an easy Transition by Ap­peal from the Inferior, to the next supe­rior Court; and lastly, To the Conventio Magnatum, or Supream Assembly.

2dly, Another observable, is, That all these Courts were so held, twice yearly, for the free Election of Magistrates, and the free Distribution of Justice, within their respective Precincts. To which End, all the inferior Courts were held about the End of September, for electing their [Page 22]Magistrates and Officers (as they still are in London and some other Cities) and the other half yearly Assembly, for Distribution of Justice, was usually about the End of March, yet so that all was over before the Witte­nagemote, See Wil­kins, LL. Saxon. p. [...] c. 1. [...]. Purif. [...] M. uno [...] eodem Die per Totum Regnum. or Grand Assembly was held, which, by an express Law, was always to commence, The first, on the Calends of Oc­tober, for confirming or constituting all the Aldermen, or Earls or Hetetoges, or Lord Lieutenants of the several Counties, as also of all the other Great Officers of the King­dom; and the other about the Calends of May for distributing of Justice, &c. N. B.

For by the Constitution of the Saxon Government, no Officer, either Civil or Military, or even Ecclesiastical, could be invested in his Office, or Exercise any Ju­risdiction or Authority over Freemen, without the free Election and Consent of those Freemen over whom he was to exercise such Authority; and tis for this Reason, more especially, That the People of England are denominated Free; for that by the antient Laws and Constitution of the Kingdom, they had this just and na­tural Right, viz. The free Election of their Magistrates and Governors, without which our Ancestors thought all other Liberties were but a Species of Bondage. For of what Use can Liberty be to him, whose Person, or Estate, is subject to Of­ficers, [Page 23]&c. set over him, without his own Consent?

This Freedom of Election of Magi­strates, &c. Civil and Military, under the Saxon Government, fully appears thro-out the whole Body of their Laws, especially in the 35th Law of Edward the Confessor, which provides,See Spel. Gloss. in verbo Vicecom. p. 555. That all Sheriffs (or Earls) and all Heretokes, or Lords Lieutenants of Counties, shall be elected in pleno Folkmote, i. e. by the Freeholders in a general County Assem­bly, or Parliament.

And that their Practice was therein pursuant to the Law,Sax. Chr. sub Anno 1064. appears from the Case of Tosty, Earl of Northumberland; for (says the Saxon Chronicle) That Earl, misbehaving himself in his Office, the People of that County deposed him from being their Earl, and proceeded to elect Morkar, the Son of Elfgar, LL. Inae c. 8. & 36. LL. Ed­gari, c. 3. LL. Ca­nuti, c. 13. 14. into his Place: Which Power of deposing Earls, and other Officers, appears to have been vested in their Folkmotes, by express Provision of divers Laws both of the Saxon and Danish Kings.

I confess, in the Case of Earl Tosty, Sax. Chr. p. 171. tis said, That after the People had so elected Morker to be their Earl, they certified their Election to the King, and intreated his Assent thereto, to which the King yielded; and on the Vigils of [Page 24] Simon and Jude, sent them a Confirma­tion, or Renewal of the Laws of King Canute (i. e. That for deposing Earls, &c.) This shews, That tho the King had the Power of confirming the Earl in his Office, yet he could not of himself ap­point any Earl over the People, without their own free Election and Consent, in a Folkmote or County Parliament.

Now,Vide Edv. Cons. 32. & 35. as all Titles and Dignities in the Saxon Plan of Government, had both Officium and Benesicium annex'd thereto, so there were divers previous Qualifications necessary to enable the Persons to be ele­cted to such Dignity or Office: Thus, in Order to be a greater Thanes-worthy,Qualifi­cations and Ele­ctions of Peers, &c. or worthy to be elected one of the greater Thanes (i. e. Lord of a Hundred) he was to have such an Estate; and to be an Earl, or Alderman's-worthy or wor­thy to be elected an Earl, or Alderman of a County, he was to have such an Estate; with other Qualifications respe­cting each Office.

So that three Things, at least, ought to concur in constituting an Alderman, or Earl of a County, as also of a greater Thane, or Lord of a Hundred (both which, with the Bishops then, made up the Body of their ordinary Folkmotes, and Witenage­motes) viz. 1st, He was to have an E­state in Lands, with other Qualifications. [Page 25]Secondly, The Election and Consent of such Freemen over whom he was to pre­side. And thirdly, The Royal Assent, or Confirmation (usually in Parliament)

And further, as all the Magnates Reg­ni, Who or­dinarily were Re­presenta­tives of the Peo­ple. That Bi­shops were ele­cted by the Peo­ple, even after the Conquest. See Sad­lers Rigts. of the Kingdom, p. 1178. 133. 134. 140. &c. and all other Officers and Magistrates, whether Civil or Military (and even Ecclesiastical, as Bishops, &c.) were in those Times elected to their respective Offices, by the Persons over whom they were to preside; so they were liable for Misbehaviour in their Offices, not only to a Deprivation, but also to be otherwise censured and punished in their Folkmotes, and other Conventions; and consequent­ly were under the strictest Guard, to keep to their Duty, and perform their Trust, both in their Folkmotes, or County Par­liaments, as also in the Grand Witenage­mote, or Supream Parliament. And tho such Officer presided in the former, as their Prince or King; yet in the latter, he was but their Representative: And thus the Magnates Regni, Nota. or Lords of Parliament, were originally and ordina­rily, no other than the Representatives of the Commons or Freemen.

Tis true, in extraordinary Cases,Spel. Glos. verbo Sub­sidium. as in Granting of New Ayds or Taxes, as Danegelt, &c. the Commons likewise at­tended in Parliament either in Person, or by their Deputies, specially authorized; but [Page 26]such Ayds and Taxes were then very rare;See Mr. Madox's Hist. Ex­chequer. c. 7. 8, 9, &c. the Crown in those Times being abun­dantly supply'd in ordinary Cases, by its Rents and Revenues, both certain and casual; as Fines, Forfeitures, Escheats, the third Part of the Profits of all Leets, Hundreds, Counties, and other Courts, Ayds, to make the King's eldest Son a Knight,Vide Pau­lus Manut. De Legi­hus Roma­nis. to marry his eldest Daughter, &c. all which I take to be of a British or Roman Original.

Besides which, if we consider the vast Profits and Revenues then arising from the antient Demesne, and other Crown Lands, we may easily Grant, That the King had rarely any Occasion for extra­ordinary Ayds: For the Tenants of those Lands,Spel. Glos. verbo Vil­lenagium. holding the same in Villenage, and they themselves being esteemed as the Villani Regis, the King could not only Tax 'em at his Pleasure, but also appoint 'em what Officers and Magi­strates, and even out 'em of their Posses­sions as he pleased; and therefore Te­nants in antient Demesne, while they continued such, [...] were never esteemed Free­men; they never served on Juries, never voted for Members of Parliament, nor e­ver contributed to their Expences: In short, They were thought to be so far under the Power and Influence of the [Page 27]Crown, as not to be in any wise entrust­ed with the Peoples Liberties.

Sir H. Spelman, in his Glossary,In verbo Subsidium p. 527. says thus, I find not that the (antient) Sax­on Kings had any Subsidies, &c. But they had many Customs, whereby they le­vyed Money of the People, or Personal Services towards building (repairing) of Cities, Castles, Bridges, Military Ex­peditions, &c. call'd Burgbote, Bridge­bote, Herefare, Heregeld, &c. But when the Danes oppress'd the Land, King E­gelrede (or Ethelred) Anno 1007, yield­ed (in a Parliament) to pay them 10000 l. which was afterwards encreased to 36000 l. then to 113000 l. and lastly, Note, this Assess­ment was doubtless with Con­sent of the Commons Q. If Church­men were not Procurato­res aut Participes Danici Subsidii. to a yearly Tax or Tribute of 48000 l. This was called Danegeld, and for rai­sing it, every Hyde (or Plough) of Land, was cessed at 12 d. yearly (the Church-Lands excepted) which therefore was called Hydage (and Carvage) which Name afterwards remained upon all Subsidies and Taxes imposed upon Lands; for sometimes it was imposed upon Cattle, and then twas called Horngled.

But tho' the Saxon Witenagemotes were so ordinarily held per Regem cum Magnatibus Regni. Yet it is very Evi­dent, that when any matters were to be there Transacted, which in general con­cerned the Body of the Freemen of the [Page 28]Kingdom, in such cases the Rule was Quod tangit omnes tractetur ab omnibus, and nothing could be determined in their Parliaments relating to Peace or War, new Ayds, Taxes or other publick charges on the People, without their Common Assent either in Person or by special Re­presentatives.

Tis true,See Madox ut ante. the Saxon Kings had very rarely any such Ayds, Taxes or Subsidies, as are granted to our Kings at this Day: The vast Profits arising to the Crown in those Days, consisted in the Rents and Produce of their antient Demeasn Lands; the third Part of the Profits of all the County, and other Courts in the King­dom, besides the many other Incomes on Fines, Forfeitures and other Penalties, and other Revenues certain and casual, made it seldom necessary to Tax the People by a Parliament.

They had also (says Spelman) many Customs,In verbo Subsidium. whereby they levied Money of the People, or exacted their Personal Services towards the Building and Re­pairing of Cities, Castles and Bridges, for Military Expeditions, &c. which they called Burg-bote, Vide ante. Brig-bote, Here-fax, Here-geld, &c. Tho' we may well con­clude those Customs and Duties, to have been originally granted by Assent of the Commons in a Parliamentary Assembly, [Page 29]as 'tis certain Peterpence, Danegeld, Spelman ib. Horngeld, &c. were.

As to Peterpence, Idem in Verbo Ro­mascot. See Fedus Edvardi and Gu­thurui c. 6. LL. Edgari c. 4. LL. Caunti c. 15. LL. Hen. 1. c. 12 &c. In verbo. Subsidium. otherwise called Romescot and Romefee, whether the same was first granted by King Ina, as is ge­nerally said, or by King Offa, as others affirm; 'tis plain a Parliamentary Consent was had thereto, as the Laws touching the Regulation of the same, doe manifest­ly prove.

And as to Danegeld, &c. Sir Henry Spelman says, The Danes having op­pressed the Land, King Egelred (i. e. Ethelred) in the Year 1007, yeilded (i. e. by consent of Parliament) to pay them for obtaining Peace 10,000 l. which was after encreased to 36,000 l. then to 113000 l. and lastly to a yearly Tribute of 48,000 l. and for the raising of this Tax,Note this Tax ap­pears to have been promoted by some Church­men who tis proba­ble shared the plun­der. Splem. ut Supra. every Hyde or Plough Land was charg'd with 12 d. Yearly, (Church Lands excepted) and thereupon twas called Hy­dage, which Name was afterwards apply'd to all Taxes and Subsidies imposed on Lands; but if the Tax was laid on Cattle, 'twas call'd Horn-geld.

The Normans (says the same Author) called these sometimes, from the Latin and Greek Word, Taxes, and sometimes from their own Language Tallagia, sig­nifying to cut or divide from, (as the Word Excise doth at present) and some­times [Page 30]they denominated 'em according to the usual Words beyond Sea. Auxilia and Subsidia (Ayds and Subsidies) and ac­cordingly W. 1. had those Taxes or Tal­lages, and made Laws for the manner of Levying them:Vide LL. W. 1. p. 125. Rights of the King­dom 115. But this also seems to be by pretence or colour of (I cannot call it a free) Parliament.

But to return to the Saxons and their manner of granting Aids and Taxes;Hist. Ae­thelwerdi Li. 3. we may observe that King Egbert, (who is generally said to have been the first Mo­narch of England) seems to have attain­ed his Conquests and Extent of Domini­on, chiefly by the extraordinary Aids and Supplies granted by his Commons;See In­gulph. p. 6.12.17. and that by the same Means, he was enabled so vigorously to Repel the Danes, &c. To this purpose we meet with a Passage in the History of Croyland, viz. That this King confirmed a grant of Lands to that Abby; coram Pontificibus & Ma­joribus totius Angliae, i. e. (as I appre­hend) before the Prelates, Peers and grea­ter Commons of all England, who (as the History saith) were then met together at London, consulting how to provide Aids and Supplies contra Danicos Piratas, &c.

The whole Passage proves this Trans­action to have been in a general Council, or Parliament, met purposely for the raising of new Aids; and the Word Ma­jores, [Page 31]seems plainly to intend the Repre­sentatives of the Commons, and to be of a lower Degree than the proceres or Tem­poral Peers. Vide Bed. Hist. And that the Commons attended at that Consult, may not only appear from divers of the Names Sub­scribed to that Charter: But 'tis also evi­dent from Bede and other antient Au­thors, that the Word Majores was then used to signify such Officers and Magi­strates as we now Term, Sheriffs of Coun­ties, and Mayors or Bailiffs of Towns and Cities.

And tho' the Word Danegelt, Ingulph. is not quite so antient as the Time of K. Egbert, yet that the first grant thereof, was with consent of the Commons, appears from the Laws of Edward the Confessor;Hoveden. who first remitted it, it having been di­verted from its Original and true Institu­tion; the very Cause ceasing under the Kings of the Danish Race, who notwith­standing continued the Tax, and which tho' remitted by the Confessor, was after­wards revived by the Conqueror,See Laws of W. 1. as a proper Expedient for augmenting regal Power; and yet this Revival seems also to be by consent of, or under colour of a Parliament.— But further,

In the abovementioned History of Croyland, Hist. In­gulphi ad Annum 855. there is a remarkable Charter made by Ethelwulph the West Saxon [Page 32]King, who was Son and Successor to K. Egbert, and the Father of his four Suc­cessors, i. e. Ethelbald, Ethelbert, Ethel­fred and Alfred. Rights of the King­dom p. 84, 85. The Charter itself im­ports a grant of Lands, Tythes, &c. to that Abby, and in the Body of it, is said to be made cum Consilio Episcoporum Principum, &c. and is Subscribed by, and in the presence of the Kings of Mercia and East Anglia, Omniumque Archiepo­rum Episcoporum Abbatum Ducum Co­mitum Procerumque totius Terre; alio­rumque Fidelium infinita Multitudine, Qui omnes Regio Chirographo Laudave­rant.— A pregnant Instance of a Saxon Parliament compos'd of Kings, Lords and Commons, and of the concurrent Assent of the three Estates in the passing of the Grant.

I cannot here forbear observing an Ex­pression in that Introduction to the Laws of K. Alphred (which might seem strange in a King at this Day) where speaking of his Establishing those Laws.See Wil­kins, p. 34 and Lam­bard 26. (Ex con­sulto Sapientum Suorum) By consent of his Parliament, he goes on thus, Fortham ic ne durst gedyrst-laecan, &c. for that he durst not attempt to do it otherwise; and it concludes thus, Ergo Ego Alphredus— omnibus Sapientibus meis hic usus sum; et illi dicebant quod ipsis omnibus bene placuerint ea (quae Statuta Suut) ut ob­servarentur.

And Andrew Horn, a Learned Lawyer,Mirror of Justices. who wrote Temp. Ed. 2. in many places of his Book, Speaks of K. Alphred's Par­liaments, and that his Laws were made by Assent of his Great Wise Men and Commons; He Expresly mentions and applauds that Law of his, that Parlia­ments ought to be held twice Yearly, and Declares the Non-observance of that grand Law of State, to be one of the highest abuses of Law and Government.

I might here also take notice of other Parliaments of the same King,Wilkins LL. Sax­on. p. 51. particular­ly that Treaty entered into between him and Guthrun the Dane, which was made Ex Sapientum anglorum Consilio; and I might further shew that all the Acts of State, both of him and his Saxon and Danish Successors, were made and transacted with the consent of the Com­mons, as well as Consilio Magnatum. But the Point is so fully proved in our antient Historians, as well as in the stile used by those Princes in their Enacting of Laws, that I conceive my further En­deavours to illustrate, it would prove but holding a Candle to the Sun.

And as for the Norman Times, tho' the two Williams, Father and Son, en­deavour'd what they could to suppress the Rights of the Commons, yet we find on the Death of the latter; the Com­mons [Page 34]of England began in some Measure, to be Restored to their antient Rights, i. e. the Election of their Officers and Magistrates, Civil and Ecclesiastical, and their being Represented in Parliament.

'Tis True, W. 1. Soon after his acqui­sition of the Kingdom, Swore to the Observation of the Laws of Edward the Confessor, but added a very odd Li­mitation to the Oath, viz. with such amendments (i. e. alterations) as he, with advice of his Council should make therein. This shewed he had little regard to those Laws, and the Rather for that the Obser­vance of them, would in a great Measure deprive him of Nominating the Officers and Governors of the Kingdom; a tender Sore to a Prince that aims at arbitrary Power.

He therefore took upon him the No­mination and Disposition of all Offices and Dignities; Sold and Distributed, Earl­doms and Baronies at pleasure, and seems to have utterly deprived the People of their Right of Election of Magistrates and Representatives, (except for London) without which, no People can be esteem­ed Free; and having afterwards settled his Revenue by the Record of Domes­day Book; he had thence forward no oc­casion for supplies in Parliament.

W. Rufus succeeded him on the like Foot, and on his Coronation, Swore the like Oath with the like Explanation, i. e. to observe the Confessors Laws with such amendments, i. e. alterations therein, as had been made by his Father; and H. 1. on his coming to the Throne, Swore to the Observance of the same Laws, with such alterations as had been made there­in, by his Father and Brother.

Hitherto the Yoak of the Norman Conquest and Tyranny, had layn heavy on the Necks of the Commons of Eng­land; but now their Day of Redempti­on seem'd to draw Nigh; for in a few Years after this, Robert the Eldest Son of W. 1. being return'd from the Holy Land, and coming into England set up his claim to the Crown, and made such a Party among the Norman Nobility here, that King Henry was forced to throw himself into the Arms of the English, and thereupon called a Parliament at London, which seems to have been com­posed almost, if not wholy of an English House of Commons.

The Speech made by that Prince at the Meeting of that Parliament, is Re­corded by Mat. Paris, and does so re­markably discover the Restoration of the Rights of the Commons, and the Reno­vation of the antient Constitution (by [Page 36]granting the Original of our Magna Charta and other Liberties,) that I can­not forbear giving the Speech and its In­troduction to the Reader, both in Latin and in English, viz.

Magnatibus igitur Regni ob hoc Lon­donium Edicto Regio convocatis Rex, Oratio Regis Henrici ad Anglos. See Mat. Paris old Edicon p. 83. and in Watts, p. 42. (Henricus) talibus alloquiis super Mel & Favum Oleumque Mellitis & Mollitis blandiens Dixit; (Vos Angligeni) Ami­ci & sideles mei Indigenae ac Naturales. Nostis veraci Fama referente qualiter Fratermeus Robertus electus et per De­um Vocatus est, ad Regnum Hierosolymi­tauum feliciter Gubernandum, et quam frontose illud infeliciter Refutaverit; Merito propterea a Deo Reprobandus: Nostis etiam in multis alijs Superbiam et ferocitatem illius, et quia Vir belli­cosus Pacis Impatiens est; Vosque Scien­ter quasi contemptibiles, et quos Desides vocat & Glutones conculcare desiderat. Ego vero Rex humilis & pacificus Vos in Pace & in antiquis Vestris Liberta­tibus prout crebrius jurejurando promisi gestio confovere, et vestris inclinando Consilijs, consultius ac Mitius, more Mansueti Principis Sapienter Gubernare; Et super his (si provideritis) Scripta subarata roborare, et iteratis Juramen­tis praedicta certissime Confirmare; Om­nia Videlicet quae Sanctus Rex Edvar­vardus, [Page 37]Deo inspirante, provide Sanci­vit inviolabiliter jubebo observari; ut vos mecum fideliter Stantes, Fratris mei, immo et mei & totius Regni Angliae Hostis cruentissimi Injurias, potenter ani­mose ac voluntarie propulsetis; si enim Fortitudine Anglorum roborer, inanes Normanorum Iras, Nequaquam censeo formidandas.

The King having by his Royal Edict,K. H. [...]. his Speech to his Eng. Parliam. called the English great Men of the King­dom to London, for that intent harangu­ed them with a most gracious Speech, smoo­ther than Oil, and sweeter than Honey, or the Honey-comb, thus: My belov'd, and faithful Friends (Englishmen) You who are the true born Inhabitants,It seems the Nor­man Nob. tho' Sum­mon'd, re­fused to attend H. Parliam. and to have join­ed with Robert. and na­tural Proprietors of this Kingdom. You know what undeniable Truth is founded in the Report that my Brother Robert hath been Elected, and by God call'd to the glorious Government of the King­dom of Jerusalem, and how shamefully he has rejected that call; for which Cause he deserves to be abandoned by God. You also know among many other his ill Qualities; that he is of a proud and brutal Disposition, and that being as it were nurs'd in War and Blood; he is an utter stranger to Peace; that he publick­ly Treats you as contemptible, and calls you Slaves and Gluttons, and that his [Page 38]whole aim is to Tyrannize over you. But I a mild, gentle and pacifick King, de­sire to protect you in Peace, and in the enjoyment of your antient Laws and Li­berties as I have often Sworn to do, and to be guided by your Counsels, whereby I may Govern you with the more Pru­dence and Moderation, as a Mild and a gentle Prince. Nay more than this, if you will provide a Charter, I am ready to confirm and Establish thereby, and on my renewed Oath inviolably observe all those good Laws which the holy King Edward being inspired by God, did with Wisdom ordain. That so, you standing faithfully and couragecously by me, we may powerfully resist and repell such in­juries as may be attempted against us by this Brother of mine, who is the bloody Enemy of you, and of the whole King­dom of England: For let me be but as­sisted with the Courage of you English­men, I shall not in the least fear the vain Threats of those (upstart) Normans.

From the foregoing Passage concurrent with other circumstances of those Times, I conceive we may raise the following conclusions.

1.LL. Ed. Conf. c. 33.35. &c The Convention abovemention'd be­ing Convoked Edicto Regio, &c. was one of those extraordinary Parliaments before mentioned, met together to consult [Page 39] De arduis Negotijs Regni (i. e. how to secure the Possession of the Crown) and not one of those stated, and ordinary Parliaments which by the Saxon consti­tution were to be held twice Yearly (viz. about the beginning of May and begin­ning of October) which ordinary Parli­aments were afterwards by divers Statutes,LL. Ed. gari. c. 5. See 4. Inst. so. 9. & 36. E. 3. c. 10. St. 4. E. 3. c. 14. reduced to once a Year certainly, (i. e. whether Summoned or not) or oftener if need were, i. e. if there was any occa­sion to call one by a special Summons, pro arduis Negotijs Regni.

2. That tho' the Magnates Regni are only mentioned to be Summoned, yet the Commons of England were therein in­cluded; and indeed it is very Evident, that the Words Magnates Regni or No­biles Regni, Selen Tie. Hon. 603. & 604. in the Language of those Times included both Lords and Com­mons when applyed to a National As­sembly: For as Mr. Selden observes the Word Nobilis in the Saxon Times denot­ed every Gentleman (i. e. under Thanes or Knights, &c.) So after the Conquest, the Word Baronagium, Camb. fo. 137. Edit. Lond. 1600. included the Com­mons as well as Peers, and Mr. Cambden with others, do consess Quod Sub Nomi­ne Baronagij omnes Regni ordines conti­nebantur. Thus Rex Magnates & Pro­ceres are said to make the Stat. of Mort­main, which was apparently made by the [Page 40]K. Lords and Commons;17 Joha­nis. and the Magna Charta of K. John (of which that of K. H. 1. is clearly prov'd to be the Founda­tion) appears to have been made per Re­gem Barones & Liberos homines totius Regni, Mat. Par. Edit. per Watts, p. 38.45.51.166. & alibi. all which are by the Historians of those Times, called Magnates Angliae. See farther of the Import of the Word Magnates in Mat. Paris.

3.M. Paris 10.6. & 40. That the Norman Nobility, tho' Summoned, resus'd to appear at this Par­liament, they being almost entirely de­voted to Robert the King's Elder Bro­ther; and hence it is that we find the King's Speech is here Directed to English Men only, and that too in opposition to the Normans in general, on whom the King in the Conclusion very warmly Re­flects, in order to ingratiate himself the more with the English Commons, of whom this Parliament seems to have been (almost) wholly composed.

The cause of the Normans defection seems to have been,Vide ibid 42. for that King Henry having in the 2d year of his Reign Mar­ried Maude the Daughter of Margaret, Q. of Scotland, who was Edgar Aethe­ling's Sister, and the direct lineal Heir of the English Blood Royal, Mat. Par. 40. was so ena­moured with her (tanto ardentius exar­sit in ipsius amorem) that he very much favoured the English for her Sake; where­upon [Page 41]the Normans raised a general Rebel­lion against him, in favour of Robert; and tho by the Intervention of Friends, the dif­ference between the two Brothers was Skinn'd over for the present, yet we find the K. could never afterwards be heartily reconciled to the Norman Nobility, tho' of his own Blood, diverse of whom as Robert de Beleasmo, Ib. 40 41. William Earl of Moreton, and others; he soon after Ba­nished the Kingdom.

And it is very remarkable, That in the Event of the several Contests about Robert's Right, the English Commons became the Victors over the Norman No­bility; first, on behalf of W. Rufus, in the Beginning of his Reign, and now on the Behalf of K. H. 1.Vide ib. sub Anno 1089. And the Exam­ple of their former Valour might induce this King to gratify and caress them with those high Encomiums, and Promises in his Speech. Which Promises, tho as the Hi­storian asserts, he afterwards, impudenter violavit; yet, as to the granting a Char­ter for restoring the Confessor's Laws,Ib. p. 42. doubtless the Parliament took him at his Word; and this Charter I take to have been that very Charter which the same Historian observes to have been pro­duced to King John, Ib. p. 167. at the Rencounter of Runny-Mead, and not that which is mentioned to have been granted by this [Page 42]King, at his Coronation, in which we find this ensnaring Stricture,Mat. Par. 38.167. viz. Lagam Regis Edvardi vobis reddo, cum illis e­mendationibus quibus Pater meus eam emendavit. His Father having, under Pretext of those Emendations, utterly deprived the English of the Free Electi­on of their Magistrates; whereas tis evi­dent from History, That for some Years after this new Charter granted in this English Parliament, the People were ge­nerally restored to the Right of electing their own Magistrates and Officers, Civil, Military and Ecclesiastical; and this I take to be the grand Foundation of the Magna Charta of English Liberties, i. e. as it gave Relaxation from Norman Ty­ranny and Slavery. And this may teach us,Dier 60 & —. See Mir­ror, c. 1. Sect 3. Bra. Flet. Lambards Archaion, 5 [...].239.245. Sir R. At­kyns, p. 20.15, &c. Vide Post. c. 6. & 7. That the Rights and Liberties of the Commons of England, are neither so ille­gally begotten as by Rebellion, nor of such tender Years, as some imagine. But if any Man is not convinced from what I have before produced, touching the Origin of English Parliaments, and the Antiquity of the House of Commons, let him pe­ruse the Authors cited in the Margin, es­pecially the Treatise writ by that learned Judge Sir Robert Atkyns, on this very Subject.

Nor was this the first English Parlia­ment held under this King,Mat. Par. 37.39. 2 Inst. 15. Mat. Paris [Page 43]has given us a brief Account (which o­ther Authors confirm and enlarge) That one Ranulph, Saxon Chron. sub Anno 1099. p. 208.210. Flor. Wig. &c. Mat. Par. 39. Bishop of Durham (whom Mat. &c. adorn with the sublime Titles of, Vir pessimus, & corruptissimus; Ho­mo perversus & ad omne scelus paratus; Vir subacto ingenio & prosunda nequitia, &c.) was imprisoned, &c. by a Common-Council or Parliament of Englishmen. The whole Passage runs thus, Eo tempore Rex tenuit in Custodia Ranulphum Dunel­mensem Episcopum hominem perversum & ad omne scelus paratum, Quem Fra­ter Regis, i. e. Rex Willielmus Episco­pum fecerat Dunelm. & Regni Anglo­rum subversorem; N. B. The Office of a Court Bishop. Qui cum Regi jam dicto nimium esset familiaris, constituerat eum Rex, Procuratorem suum in Regno, ut evelleret, destrueret, raperet et disper­deret, et omnia omnium Bona ad Fisci commodum comportaret. Sed mortuo eo­dim Rege iniquo & Henrico coronato, de Communi Consilio Gentis Anglorum, po­suit Rex eum in vinculis, &c.

Nor was the Concurrence of the Com­mons in Parliament requisite only to the Imprisonment or Exauctoration of Bishops, Rights of the King­dom, p. 118.133.140. &c. the same Assent seems as necessary, and that too in a superior Degree, as to their Election or Confirmation; divers Instan­ces of this appear in the Historians of those Times: I shall select some to prove [Page 44]it then the Custom of England, Scotland, Wales, Ireland, France, &c.

Anno 1113,Sax. Chr. p. 306. Ralph, Bishop of Roche­ster, was elected Archbishop of Canter­bury by the King, Annuente Plebe & Clero; Eadmer. Hoveden. this was done in Communi Consi­lio apud Windsore. And I find about the same Time, That another Ralph, who had been ordained a Bishop in Scotland, was rejected by all, because not elected with the Consent of the People, &c. And notwithstanding his Consecration, was for­ced to wander about, and officiate as a Coadjutor to other Bishops.

About the Year 1120,Malmsb. one David was consecrated Bishop of Bangor, by the then Archbishop of Canterbury; but tis expresly said, That he had been thereto elected, A Principe Clero & Populo Walliae, i. e. by a Welch Parliament. And in the same Reign one Gregory, an Irish Abbot, was elected to the Bishop­rick of Dublin, a Rege Hiberniae & Cle­ro & Populo, an Irish Parliament. So that the Commons at this Time, were a a constituent Part of the Scottish, Welch and Irish Parliaments, as well as with us in England.

And in the Year 1128,Vide Sax. Chro. sub An. 112. I find that fam'd Scholar Gilbertus Universalis, to be elected and consecrated Bishop of Lon­don, [Page 45]Annuente Clero & Populo. This seems at a Parliament at London.

But this Right of the Commons in e­lecting Bishops, does more clearly appear in H. the 2d's Time, when all Historians agree it to be a general Custom both here and in France (and seems founded on di­vers express Canons of the Primitive Church) Insomuch, as Mezeray, in his History, asserts, That until that Time (i. e. the Middle of the 12th Century) The Voice of the People in electing Bi­shops, was esteem'd the Voice of God.

The Successors of K. H. 1.K. Steven Mat. Par. 51. took their Coronation Oaths in a Form much more enlarged, for the Ease of the Commons, than those of King Henry 1. or his two Predecessors: Thus K. Steven swore, Co­ram Regni Magnatibus, i. e. the Lords and Commons convoked at London. Ad meliorationem Legum juxta voluntatem & Arbitrium singulorum; which must mean, That he would reform the Laws according to their common Consent in Par­liament; and afterwards going to Oxford (i. e. to hold his Parliament) Ibi confir­mavit Pacta, quae Deo & Populo, in Die Coronationis suae concesserat. This I take to be meant of Danegelt, Hydage, Cornage, &c See there some Particulars of his Oath, where­of the 3d is (Tallagia) Quae autecessores ejus accipere consueverant in aeternum con­donaret. And in the following Year, on [Page 46]the Arrival of Rob. Earl of Glocester, Ibid. 51. this King was again sworn to observe the Good Laws (of the Realm) and thereof granted his Charter; and see there the conditional Homage paid to the King by that Earl.

I might here pursue this Thread of Coronation Oaths, in those of H. 2. R. 1. K. John, Vide Ib. 42. in pe­de 51. and the Praef. to Privile­gia Lon­dini. Rights of the King­dom, p. 88. &c. but my Intention is not to trace the Practices of Kings in taking Co­ronation Oaths, an unlucky Blot remains in History as to those Princes I have al­ready named, it being generally observed, Impudenter fregerunt, &c.

An Author, who seems to be very con­versant in Matters of this Nature, and ob­serves thus, ‘The King's Oath is to con­firm the just Laws which the Commons (not the Lords) shall elect or choose (in Latin, Quas vulgus elegerit) and in the old French Oaths of Edw. 2. and Edw. 3. tis, Les quels la Communaute aux Eslue. And in the English Oaths of H. 8. and other Princes,See Sir R. Atkyns ut supra p 28 29. tis, Which the Commons of the Realm shall choose. And that the antient Writs for sum­moning the Commons, are, Nobiscum tractur' & consilium impensur' de ar­duis Negotiis Regni.

And the same Author,The King dom's Rights, ut supra. a little before, says thus, ‘The Mirror (as well as Ta­citus) shews how our Lords were ori­ginally raised out of (and by) the Com­mons, [Page 47]and (with Bracton Fleta, &c.) gives them a judicial Power over the Rest, &c. Nay, the Modus Parlia­menti, will not only tell us, That the Commons have better and stronger Votes than the Lords; but that there may be a Parliament without the Pre­lates, &c. For there was a Time, wherein there was neither Bishop nor Earl, and yet there were Parliaments without them; but never without the Com­mons, and concludes with the Impossi­bility of holding a Parliament without them; thus, Parliamentum sine Com­munitate, tenebitur pro nullo, quam­vis omnes alii status plenarie ibidem intersuerint.

Lastly,Sir R. At­kyn's Power of Parliament, p. 32. The Freeholders of England had originally the Election of the Conser­vators of the Peace, who are become out of Date, by introducing Justices of Peace, who have their Power, not by any Ele­ction of the Freeholders (as of Right they ought) nor are they nominated by them, but by the King, and have their Power by his special Commission, &c. (i. e. contrary to the Common-Law) And how, and by what Means, and in what tempered Times, this came about, may be read in Lambards Eirenarcha. Lambards Justice, f. 16.19.20.147, &c. It was done by Act of Parliament, in the Beginning of K. Edw. the 3d's Reign, [Page 48]and in his Minority, when the Queen (and Mortimer) ruled all.

The Freeholders did also originally,Sir R. At­kyns supra and from all Antiquity, at their Folkmotes, or County Courts, chuse their Heretochii; and what were these? You may call them Lords Lieutenants, Deputy Lieutenants (or it may be Lieutenants Generals) For the Saxon Laws tell you their Duty and Office,LL. Ed. Conf. 35. Vide ante and that they were to be Ducto­res Exercitus, &c.

All these great Officers were chosen by the Freeholders, as our Knights of the Shires now are, and as Conservators, or Justices of Peace formerly were, and as Coroners and Verdredors (formerly Men of great Power) still are, by Writ at the County Courts.

These were mighty Powers and Free­doms,Sir R. At­kyns supra See 4 Inst. 174.558. and were enjoy'd by the People, as antiently as any of our Records do reach; which are more authentic Proofs (of our Constitution) than the Writings of Modern Historians, &c. And do best shew the native Freedom, which the People had by the antient Constitution of our Go­vernment, contrary to all the new Do­ctrines of our late Writers; and prove, That the Privileges and Freedoms we yet enjoy, are not meer Emanations of Royal Favour, as our Novellists would impose upon us.

CHAP. II. Of the Dignity and Excellency of Parliaments.

THE Parliament is the Foundation and Basis of Government,Rushw Coll. 3d Part Vol. 1. fo. 739 and con­sequently of the Peace and Happiness of the Kingdom; as it creates the Law by which we are ruled and governed in Peace and Quietness; so it preserves the Law in Power and Authority: It watches o­ver our Religion, that it be not supplan­ted and exchanged by suppositious Inno­vations; or the Truth and Substance of it eaten up with Formality, vain Pomp, and unnecessary Ceremonies. It is the Conservative of the Rights and Liber­ties of the Subject, and the Corrective of Injustice and Oppression, which by e­qual Right is distributed to all, and eve­ry Man hath that Benefit and Protection of Justice which is due to him. It is that by which alone common Necessities can be provided for, and Publick Fears prevented; so that I may say, not only the Peace and Happiness, and well Be­ing, but the very Being of this King­dom, can have no other Bottom to stand [Page 50]upon, but the Parliament; it being the Foundation upon which the whole Frame of the Commonwealth is built.

The Parliament is the Cabinet,Ib. 201. where­in the chiefest Jewels both of the Crown and Kingdom are deposited. The great Prerogative of the King, and the Liberty of the People, are most effectually ex­ercised and maintained by Parliaments, &c.

Parliaments are the Ground and Pillar of the Subject's Liberty,Ib. 587. and that which only maketh England a free Monarchy.

Parliaments are (says the Earl of War­wick, Ib. 752. Admiral of the Sea, to John Pym, Esq July 6, 1742) That Great Council, by whose Authority the King's of Eng­land have ever spoken to their People.

Both Houses of Parliament are the Eyes in the Body Politick,Ib. 702. whereby His Majesty is (ought) by the Constitution of this Kingdom, to discern the Diffe­rences of those Things, which concern the Publick Peace and Safety thereof.

(The Parliament is the Mouth of the King and Kingdom, Vox Dei, &c.)

Parliaments (says K. C. 1. in his De­claration to all his Loving Subjects,Rushw. Coll. 3d Part Vol. 2 p 40. after his Victory at Edgehill, on the 23d of October, 1642) are the only Sovereign Remedies for the growing Mischiefs which Time and Accidents have, and will al­ways [Page 51]beget in this Kingdom. That with­out Parliaments, the Happiness cannot be lasting to King or People.

The Parliament is to be considered in three several Respects; first,Ib. p. 45. As it is a Council, to advise; 2dly, As it is a Court, to judge; 3dly, As it is the Body Re­presentative of the whole Kingdom, to make, repeal, or alter Laws.

L'Assemblie de Troys Estates, Cestas­cavoir, Finch's Nemotec­nia, lib. 2. c. 1. fo. 21. 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.

On the Restoration of King Charles the 2d, the Commons resolved,May 1. 1660. Journal Dom. Co. That this House doth agree with the Lords, and do own and declare, that, according to the antient and fundamental Laws of this Kingdom, the Government thereof is, and [Page 52]ought to be, By King, Lords and Com­mons.

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; add 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 is the highest Court in England, Crompton's Juris. p. 1. in which the Prince himself sits in Person, and (usually) comes there at the Beginning of the Parliament, and at the End, and at any other Time when he pleaseth,4 Inst. 3. during the Parliament. The King is the Caput Principium, and Finis of Parliaments.

It appears by Precedents, That when­ever a Parliament was sitting in the King's Absence,Rushw. Coll. Vol. 3. Part 1. p. 772. there was always a Cu­stos Regni, or a Locum Tenens Regis, ap­pointed.

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,Vide Dy­fol. 60. 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 Descent, 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, and these three Estates,Ib. 2. are the great Corporation or Body Politic of the Kingdom, and do sit in two Houses: 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. Coll. 5.6. Vid. Cromp ton, 1. Barons of the Exchequer of the Coif, the King's Learned Council, 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 Englishman is intended to be there present (either in Person,Arc. Parl. 3. Smyth's Common­wealth, 74 or by Pro­curation, and Attorney) of what Pre­eminence, 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.

In antient Time, the Lords and Com­mons of Parliament did sit together,2 Bulstro. 173. See Cot­ton's Re­cords, 12.13.348. Post. 60. in one and the same Room; but afterwards they were divided, to sit in several Rooms, and this was at the Request of the Com­mons; but yet still they remain but one Court: And of all this I have seen the Records, one in the Time of H. 1. where all of them did sit together, and mention is there made of the Degrees of their Seats; so in the Time of E. 3.39.

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 publick 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'd, 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,Ib. 6. the Par­liament cannot begin, 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, authorizing them to begin the Parliament, or to pro­rogue it, &c.

When a Parliament is call'd,Ib. 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,Ib. 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.Ib. 17.

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

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

It is the just and constant Course of Parliament,Seld. Ju­dic. 95. to bring the Party accused to his Answer: Yea, tho he fly Justice, yet to send out Proclamation into the Countries, that he appear at a Day, or [Page 57]else such and such Judgments shall be gi­ven against him.

What is done by either House,Sir R. At­kyns Ar­gument, &c. 14. accor­ding to the Law and Usage of Parlia­ment, 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, and Corporation:Ib. 34, 41, 51, 55. Vide Rast. St. 2. & 3. E. 6. c. 36. Pref. 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 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, in the Right of them,Ib. 55. are [Page 58]entire, and due to both Houses, for both make up the Parliament.

Knighton (one of our best Historians) doth notably disclose the antient Ends of calling Parliaments,Knyghton de Eventi­bus Augliae, l. 5. f. 2681. col. 1.2. Pettyt's Rights, &c. in Pref. p. 43. 44. Hollings. f. 1055. col. 1. in saying, Quod ex Antiquo Statuto, & Consuetudine landa­bili & approbata, &c. That by an anti­ent Statute, and Custom 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, qualiterquoque 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 [Page 59]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.

Minshieu, But these six De­grees were never al­lowed to be six Es­tates of Parlia­ment. in his Etymological Dictio­nary tit. Parliament, says, In a Monu­ment of Antiquity, meaning the antient Modus Tenendi Parliament, shewing the Manner of holding the Parliament in the Time of K. Edward, the Son of K. E­theldred, which (as the Note saith) was delivered by the discreeter Sort of the Realm, to William the Conqueror, and allowed by him, tis said, That the Parlia­ment consisted of six Ranks or Degrees; it begins thus, Rex est Caput, Principi­um, et Finis Parliamenti, & ita non habet Parem in suo Gradu: Et sic a Rege solo primus Gradus est. Secundus Gradus est ex Archiepiscopis, Episcopis, Abbatibus, Prioribus, per Baroniam. Tertius Gradus est de Procuratoribus Cleri. Quartus Gradus est de Comiti­bus, Baronibus, et aliis Magnatibus. Quintus Gradus est de Militibus Comi­tatuum. Sextus Gradus est de Civibus [Page 60]et Burgensibus: Et ita est Parliamen­tum ex sex Gradibus.

En Antient temps tout le Parliament sea Insimul, Rolls 1. Report fol. 18. ante 54. et le Separation fuit perle desire del Commons, Mes nient obstant ils font forsque un Mese; jen aie view un Record, 30 H. 1. de lour degrees et seats, 39 E. 3. per Choke ch. Inst.

It is generally believed,Reform'd vol. 2. p. 49. That the whole Parliament sate together in one House, before E. 3. Time, and then the inferior Clergy were a Part of that Body without Question. But when the Lords and Com­mons were divided, the Clergy likewise sate in two Houses, and granted Subsi­dies as well as the Temporalities.

My Lord Chief Justice Coke says,1 Inst. Sect. 164. fol. 109. The Parliament is the highest and most ho­nourable, and absolute Court of Justice of England, consisting of the King, the Lords of Parliament, and the Commons And again, the Lords are here divided into two Sorts, viz. Spiritual and Tem­poral. And the Commons are divided in­to three Parts, viz. Into Knights of Shires or Counties, Citizens out of Cities, and Burgesses out of Boroughs.

In the High Court of Parliament, all the whole Body of the Realm, and eve­ry particular Member thereof, either in Person, or by Representation (upon their own Free Elections) are by the Laws of [Page 61]this Realm deemed to be personally pre­sent, 1 Jac. 1. c. 1.

Sir Edward Cook, in his Epistle to the 9th Report, says, There is a threefold End of this great and honourable Assem­bly of Estates: First, That the Subject might be kept from offending, that is, That Offences might be prevented both by good and provident Laws, and by the due Execution thereof: Secondly, That Men might live safely in Quiet: And thirdly, That all Men might receive Ju­stice by certain Laws and Holy Judg­ments, that is, to the End that Justice might be the better administred, that Questions and Defects in Laws might be by this High Court of Parliament planed and reduced to a Certainty, and that Claims of Right might be adjudged and determined. This Court being the most supream Court of this Realm, is a Part of the Frame of the Common Laws, and in some Cases doth proceed legally, ac­cording to the ordinary Course of the Common Law.

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

By the Law,Ib. 59. Parliaments ought to be very frequent. 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. 11 Col. 14 The Par­liament can do no Wrong. 6 Col. 27. Sir R. At­kyne Arg. 60. of which no Man ought to imagine a Thing dishonourable.

An Offence committed in Parliament, is a very very high Offence; 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.

Yet a Parliament may err,Plow. Com. 397. 9 Col. 106. 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 preceeding 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 [Page 63]the whole Nation,Ibid whose Representative they are.

If any Offence whatever be commit­ted in the Parliament by any particular Member;See Hus­band's, Collecti­ons, ante p. 1. & p. 67. it is an high Infringment of the Right and Privilege 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,Ib. 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'd 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 [Page 64]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. 6. Vide Cromp. Jur. 10. as in the Time of Parliament; wherein the King as Head, and they as Members, are conjoyn'd and knit together in one Body Politic: So as whatsoever Injury (during that Time) is offer'd to the meanest Member 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 that, the highest.

Statutes in England are made not only by the Princes Pleasure,Fortescue 42. but also by As­sent of the whole Realm: So that of Ne­cessity [Page 65]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 more than three hundred learned Men (now 558) that ought to be freely Elected by the People.

Acts of Parliament are made with such Gravity, Wisdom,11. Co. 63. Fortesc. c. 18. c. 40. and Universal consent of all the Realm, and for advantage of the publick Wealth; that they are not from the General and ambiguous Words of a Subsequent Act to be abrogated.

Acts of Parliament have been tender of racking the King's Subjects for Words,1. Mod. Rep. 234 and the Scripture Discountenances Mens being made Transgressors for a Word.

Every Proviso in an Act,1. Siderf. 155. is not a determination what the Law was before; for they are often added for the Satisfacti­on of those that are ignorant of the Law.

The King of England can neither by himself or his Ministers, Fortescu. p. 84. impose (any) Tallages or other Burdens on his Subjects, or alter their Laws, or make new Laws, without Assent of the whole Kingdom in Parliament.

CHAP. III. Of the Power and Authority of Parliaments.

THE Parliamentary Power,Hollinsh. Vol. 1. p. 173. as it is in the Legislative Capacity, con­sisting of the Agreement and Act of all the three Estates, King, Lords and Commons, to make it Binding; it im­ports no less than the united Consent of all and every Person of the Kingdom; and under this Notion its Power is Un­limited and Universal; its Authority is the most unerring and firm support of Monarchy and Government, and has been ever used as the only Expedient, to ac­commodate the differences of Pretenders and Competitors, to arbitrate and decree, not only the Right and Possession, but even the Inheritance and Reversion of the Regal Power, to succour and defend the King and Kingdom, against all possibility of Injury or Incroachment that might be Intended against or Usurped up­on it, or its Authority; to decree the Nations Liberties, ascertain Property, and to establish an unquestionable Peace, and Security to all the People, both from [Page 67]the danger of Grievances at Home, or the Assaults of foreign Power.

In this capacity it hath Power above the Law itself,Hollinshead c. 1. vol. 1. p. 173. having Power to alter the common Law of England, to declare the meaning of any doubtful Laws, to repeal old Patents, Grants or Charters, and Judg­ments whatsoever of the King, or any other Court of Justice if erroneous or illegal, and extends so far as finally to oblige both King and People, to punish Offenders of all Sorts, to examine into the corruptions of Religion, and either to dis­anul or reform it.

Anno 1626. 2.Rushw. Coll. vol. 1. p. 245. Car. the Commons in their Remonstrances declare, that it hath been the antient, constant, and undoubt­ed Right and Usage of Parliaments, to question and complain of all Persons of what degree soever, found grievous to the Common-Wealth, in abusing the Power and Trust committed to them by the So­vereigns, a Course approved of by fre­quent Presidents in the best and most glorious Reigns, appearing both in Re­cords and Histories, &c.

In 30. E. 3.7. H. 4. Rot. Parl. No 31 & 32. the Parliament accused John de Gaunt, the King's Son, and Lord Latimer, and Lord Nevil, for misad­vising the King; and they went to the Tower for it.

In 11.Rushw. Ib. p. 627. H. 4. No 13. the Council are complained of, and are removed from the King; for that they mewed-up the King, and disuaded him from the common Good. In 4. H. 3. & 27. E. 3. & 13. R. 2. the Parliament moderateth the King's Prero­gative, and nothing grows to an Abuse, says Sir Edward Coke, but the Parlia­ment hath Power to treat of and Correct it.

And King James the 1st.Idem. p. 62 [...]. put the Commons assembled in Parliament, in mind, that it would be the greatest un­saithfulness, and breach of Duty to his Majesty, and of the Trust committed to them by the Country that could be, if in setting forth the Grievances of the People, and the Condition of all the Pe­titions of this Kingdom from whence they come; they did not deal clearly with him, without sparing any Persons how near, and dear soever they were unto him; if they were hurtful, or dangerous to the Common-Wealth.

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 [Page 69]or Nobility for the higher; the Knights, Esquires, Gentlemen and Commons for the lower part of the Common-wealth; the Bishops for the Clergy be present to advertise, consult and shew what is good and necessary for the Common-wealth, 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,Ibid p. 73. and after the Prince himself in presence of both the Parties doth consent unto, and alloweth, that it is, 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.

Thus, the concurrent Consent of these three Estates when reduced to writing,Inst. Leg. p. 34. and pass'd in Parliament, is as it were a Tripartite Indenture, between King, Lords and Commons; and that which is so done by this Consent is called firm, stable and sanctum, and is taken for Law.

As to the Power of Parliaments. Sir Tho. Smith. ibid. Arc. Parl. 2. Vide Crompt. Jur. 3.

  • 1. It abrogateth old Laws.
  • 2. Maketh new Laws.
  • 3. Giveth order for things past.
  • 4. Directs things hereafter to be fol­lowed.
  • 5. Changeth Right and Possessions of private Men.
  • 6. Legitimateth Bastards.
  • [Page 70]7. Establisheth Forms of Religion.
  • 8. Altereth Weights and Measures.
  • 9. Giveth Form of Succession to the Crown.
  • 10. Defineth of doubtful Rights where­of is no Law already made.
  • 11. Appointeth Subsidies, Tallies, Tax­es and Impositions.
  • 12. Giveth most free Pardons and Ab­solutions.
  • 13. Restoreth in Blood and Name.
  • 14. And as the highest Court condem­neth or absolveth them who are put up­on their Trial.

In short,Ibid. 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 Englishman 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 to its Power 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 [Page 71]itself, 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 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 Use 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 antient 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, that the King and the Lords Spiritual and Temporal and the 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 [Page 72]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 seem 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 vetustissima: 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 Inst. 74.76.

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

The Parliament hath the highest and most sacred Authority of any Court: 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, and to his Heirs Males;Crompton 20. b. Dr. and Student. in that Case his Heirs Fe­males shall also inherit; and this was ad­judged in Parliament.

One of the fundamental and principal Ends of Parliaments was,Petit'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, 6.1. p. 4. and 5. 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 for wrongs so by them done.

Covient per droit que le Roy ust Com­panions pur oyer et terminer aux Parli­aments trestouts les breues et plaints de Torts de le Roy, de la Roigne, Horn's Mirror. p. 9. et de lour Enfants, et de Eux specialment de que Torts len ne poit aver autrement Common droit. (i. e.) The King ought by Law to [Page 74]have Companions or associates, to hear and determine in Parliament of all Writs and Plaints of all Torts or Wrongs, as well of the King as of the Queen, and their Chil­dren; and especially of those (Great Ones) where one cannot otherwise have Com­mon right for those wrongs.

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,Mat. Paris and sordidly submitted to take the Crown at his Hand again,Rot. Parl. 40. E. 3. No 7. 8. at a yearly Tribute. In the Reign of our Noble King Edward the Third, the Pope demanded this Rent, and all the Arrears. But 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,Sir R. At­kyn's Arg. p. 50. 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 [Page 75]Power, and in a Time, when the Pope was in his Meridian 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, and Heirs apparent of a Man, or Woman,4 Inst. 36. may by Act of Parlia­ment inherit, during the Life of the An­cestor.Ante 69.

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

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

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 secundum quid, etiamque simpliciter.

21 Rich. 2. The Lords Appellants ac­cused the Duke of Gloucester 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 [Page 76]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. Cotten's Record p. 363. 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 the three Sons, and Joan the Daughter.

Thomas Cromwel, Vide post. 4 Inst. 36. Earl of Essex was attainted by Parliament, 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'd 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 especially 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, (i. e. Illegal.)

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

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 Authority of 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, what transcendent Power and Authority the Parliament hath,Id. 43 and tho' divers Parliaments have at­tempted to bar, restrain, suspend, qualify, or make void the Power of subsequent Par­liaments; yet could they never effect it: for the latter Parliament hath ever Power to abrogate, suspend, qualify, explain, or make void the former in the Whole, or in any Part thereof, notwithstanding any Words of Restraint, Prohibition, or Pe­nalty [Page 78]in the former. For it is a Max­im in the Law of Parliament, Quod Leges posteriores priores contrarias abro­gant.

An Act of Parliament doth include every Man's Consent,Hobart 256. as well to come (and unborn Persons) as those present.

The Sovereign 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 the consent of Parliament, as was resolv'd by all the Judges in the Princes case.

The King by his Letters Patents may make a Denizen;Id. 87. Bro. Deni­zen. No 9. 36. H. 8. but cannot Naturalize him to all purposes, as an Act of Parlia­ment may do.

If a Man be Attainted of Felony,Hakewel 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 yet the King may give to any attainted Person his Life, by this Charter of Parliament.

The King cannot alter the Common Law,Id. 90. or the general Customs of the [Page 79]Realm (as Gavelkind, Borough-English, or the like) without consent of Parlia­ment.

Altho' a King have a Kingdom by Discent, Ibid. yet 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 Proclam­tion, 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.

Le Parliament d'Engleterre ne lia Ireland, quoad Terras suas, Brook 123. 91. Vide 20 H. 6.9. Crompton 22. b. 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, Quere in­fra 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.4 Inst. 350.

Sometimes the King of England call'd his Nobles of Ireland to come to his Par­liament [Page 80]of England, &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, which is sometimes also styled a Record.

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,Id. 14. 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,Hob. 256. &c. (and we may add Persons unborn.)

It is declared by the Lords and Com­mons in full Parliament, (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 doth ordinarily belong to the Reverend Judges;Hakewel 94. and in Case of greatest Difficulty, or Im­portence, 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, i. e. where the Proceedings are by original Writ. Instit. Leg. 171.172. For if they are by Bill, they may be cor­rected in the Exchequer Chamber by St. 27 Eliz. c. 8. from whence a Writ of Error lyes to the Parliament.

Actions at Common Law are not deter­mined in this High Court of Parliament,Selden's Judica­ture 2. yet Complaints have ever been receiv'd 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 [Page 82]Misdemeanors, whereof they have been accused in Parliament.And so there have been of Com­moners. 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 Ric. 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.

And Anno 21 R. 2. The Commons Accused the Arch-Bishop of Canterbury of Treason by their Peers in Parliament, upon the Appeal of the Lords Appel­lants, 11 R. 2. And

Anno 21 R. 2. The Commons accused the Arch-Bishop of Canterbury of Trea­son, and the Temporal Lords judged him a Traitor, and banished him.

But if a 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; yet in all other Mat­ters, save that only of their Trial, they have Priviledge; 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 [Page 83]by the Lords in Parliament, viz. their Peers only (which Bishops are not.)

Judgments in Parliaments for Death have generally been strictly guided per Legem Terrae (i.e. Lex Parliamenti. d. 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 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 are guided by the Rule 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.Ibid.

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

The High Court of Parliament is the dernier Refort,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 need not be proclaim'd, 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. Parliam. n. 38. A Truce being concluded be­tween the English and French, by King Edward's Ambassadors (who therein had dishonourably 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 Prece­dent and Records that they poured 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 ther Rescue, and in dutiful ways dis­charged those Locks and Bars which had been unjustly fastned on the Exchequer.

The Right of the Crown of England, Stat. Prov. 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 Matters en Ley, a trier vie del home, a reverser Er­rors en Bank le Roy; especialment lou est ascun Commune Mischief que l'ordinary Course del Ley n'ad ascun means a remedi­er; en tiel Case ceo est le proper Court. Et tonts choses que ils font sont come Judg­ments. Et si le Parliament mesme erre, Finche's Nomotec­nia l. 2. c. 1. f. 21. 22. come il poet, ceo ne poet estre reverse en ascun Lieu forsque en le Parliament. [Page 86]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.

Sir Robert Cotton, See Sir Robert Cot. Treatise of Parlia­ments p. 44, 45 &c in his Discourse of the Privilege and Practice of Parliaments, says thus; by Parliaments all the whole­som Fundamental Laws of this Land were, and are Establish'd and Confirmed.

By Act of Parliament the Pope's Pow­er and Supremacy (in this Kingdom) and the Romish Superstition and Idolatry, were abrogated and abolished.

By Act of Parliament God's true Re­ligion, Worship and Service are (or may be) establish'd and maintain'd.

By Act of Parliament, the two Uni­versities of Oxford and Cambridge, with [Page 87]other Cities and Towns, have had many Privileges and Immunities granted 'em.

By Parliament, one Pierce Gaveston, a great Favourite and Misleader of King Ed. 2. was remov'd and Banished; and afterwards by the Lords Executed.

(Also by Parliament, the Spencer's Fa­vourites and Misguiders of the same King, were Condemned, &c. and so was Dela­pool, in H. 6. Time, and others since.)

By Parliament, Empson and Dudley, two notable Polers of the Common-wealth, by exacting Penal Laws on the Subjects were Discover'd, and afterwards Exe­cuted.

By Parliament, the Damnable Gun­powder Treason (hatch'd in Hell) is re­corded, to be had in Eternal Infamy.

By Parliament, one Sir Giles Mompe­sson, a Caterpiller and Poler of the Com­mon-wealth, by exacting upon In-holders, &c. was discover'd, degraded and Banish­ed by Proclamation.

By Parliament, Sir Francis Bacon, Note the Censure on the late E. of Mac­clesfield & Quere. made by K. James 1. Baron of Verulam, Viscount of St. Albans, and Lord Chan­cellor of England, was for Bribery, &c. discover'd and displac'd.

By Parliament, Sir John Bennet, one of the Judges of the Prerogative Court, being Pernitious to the Common-wealth in his Place, was discover'd and displac'd.

By Parliament, Lyonel Cranfield, some­time a Merchant of London, and made by K. James 1. Earl of Middlesex, and Lord Treasurer of England, being hur­full in his Place to the Common-wealth, was discover'd and displaced.

By Parliament,Note. Sir Francis Mitchell, a jolly Middlesex Justice of Peace, in the Suburbs of London, another Canker­worm of the Common-wealth, by Cor­ruption in exacting an Execution of the Laws upon poor Alchouse-keepers, Vict­uallers, &c. was discover'd and degraded from his Knighthood, and utterly disa­bled from being a Justice of Peace.

By Parliament,Ib. p. 46. the Spanish Frauds were discovered, and by an Act of Parli­ament the two Treaties (i. e. touching the Spanish Match, and for restoring the Pa­latinate, both which had cost the King and his Subjects much Money and much Blood) were Dissolved and Annihilated.

And we may remember, (says the same Author) That, that sage Councellor of State Sir William Cecil, Lord Burley, and Lord Treasurer of England, was oft Times heard to say, He knew not what a Parliament might not do; which say­ing was approved by K. James 1. and is cited by him in one of his publick Speeches.

The Parliament (says one) is of an ab­solute and unlimited Power in all Things Temporal within this Nation.Sir Robers Atkins's Argument, p. 50. Bract. fo. 34. Fleta, p. 2. 17. Another says, Parliamentum omnia potest. Brac­ton and Fleta both affirm Rex habet Su­periorem in Regno. Scilicet Curiam suam i. e. Comites & Barones (doubtless the Lords and Commons) qui apponuntur Re­gi ut si Rex sine Fraeno, i. e. sine Lege fuerit, Debent ei Fraenum apponere &c. Nay, some great Authors have asserted, Quod Concilium hoc (i. e. Parliamen­tum) Facultatem habet Deponendi Re­gem Malum & Substituendi Novum; See Mat. Paris per Watts, pag. 498. Knighton de Eventi­bus Angliae p. 2683. in the Decem. Scriptores. and that this Power is claimed ex antiquo Statuto, &c. Knighton has a remarkable Passage concerning the Execution of that antient Statute in the Cases of E. II. and R. II. which at this Time I forbear to Transcribe or Translate.

Note, It appears by Mat. Paris, p. 99. &c. That the Commons were then (i. e. 15 H. II.) summoned to the Parliament held at Clerkenwell; and that they also were a Part of the Parliament in the Time of K. H. I. See before, p. 34. 35. &c.

CHAP. IV. Of the House of Lords in general.

THE House of Peers,Rushw. eol. vol. 3. part. 1. p. 777. are the here­ditary Counsellors of the (King and) Kingdom, as the House of Commons are the representative Body of the whole Commons of the Kingdom.

There certainly cannot in the whole World be seen a more illustrious Court,Nalson, 566. than this high and honourable 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's 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 one Years at least.

A Bishop elect may sit in Parliament,Ibid. ante 3, 4, 43, 44. as a Lord thereof, (i. e. if called thereto by Writ,) Q. For he is not properly a Peer, (or even a Bishop,) till his Tempo­ralties are granted to him.

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,Sir Simon d'Ewes Journal, 2.4. Col. 2. to make Heirs of Earldoms Members of the upper House, 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 Archbishop of Canterbury is the first Peer of the Realm.Id. 140. Col. 1.

The Earl-Marshal's Place in Parliament is betwixt the Lord Chamberlain,Id. 535. Col. 2. and the Lord Steward. See the Statute.

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,Id. 44. without License, it is an Offence done out of the Parliament, and is finable by the Law.

4 June 1642,Rushw. Col. Vol. 3. part 1.737. Post. upon an Order of the House of Lords, to those Lords that had left the Parliament, and repaired to the King at York, requiring their Appearance as Delinquents, in the Answer they re­turned to it, there are these Words, ‘We do conceive, that it is the apparent, usual and inherent Right, belonging to the Peerage of England, that in the highest Misdemeanors whatsoever, no Peer is to answer to the first Charge, but in his own Person, and not upon the first Charge to come to the Bar.’

Any Lord of the Parliament,4 Inst. 12. by Li­cense of the King, upon just Cause to be absent, may make a Proxy.

43 Eliz. 1601,Towns. Col. 135. Vide Sir Simon d'Ewes Journal, 605. agreed by the Lords, That the antient Course of the House is, 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.

Anno Domini 1626,Rushw. Col. Vol. 1. p. 365. 2 Car. 1. resolved upon the Question by the whole House, Nemine dissentiente, 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 imprisoned or restrained, without Sentence or Decree of the House, unless it be for Treason or Felony, or re­fusing to give Surety of the Peace. N. B. This was upon the King's having com­mitted the Earl of Arundel to the Tower, without expressing the Cause of his Com­mitment.

All the Priviledges which do belong to those of the Commons House of Parlia­ment,Hakewell 82. a fortiori, do appertain to all the Lords of the upper 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 [Page 93]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 upper 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 upper 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 always 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 antient Treatise,Ibid. 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, 100 s. &c.

It seldom happeneth,Towns. Col. 4.39, 40, 42. That any Bishop doth nominate fewer than three, or two Proctors; nor any Temporal Lord more than one.

John Archbishop of Canterbury, Id. 34. had this Parliament five Proxies.

1 Eliz. a Lord of Parliament by Li­cense obtained of the Queen to be absent,4 Inst. 12, 13 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. the House of Peers made an Order,Rush. Col. 269. 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 seria­tim, 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. Col. 11. in the House of Lords.

Towns. Col. 9. Where a Committee of Lords is se­lected out to meet with another Commit­tee [Page 95]of the House of Commons; neither the Judges, being but Assistants, nor the Queen's Council, being but Attendants of and upon the House, were ever nomi­nated a 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 antiently 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. Col. 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 upper 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 [Page 96]Clerk writeth underneath, Soit baile aux Commons, i. e. Let it be delivered (or sent) to the Commons.

3 Car. 1. 1626. resolved upon the Question,Rush. Col. 365. 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,Nalson 380. Hakewel 84. Vide Kel. wey 184. Vid. Lord Hollis's Letter. Vid. Lord Hollis's Remains. Vid. contra Hunt's Argument for the Bishops Right, &c. Vid. Grand Question concerning Bishops Right, per totum. is a Breach of Priviledge.

Ever since the Conquest, the Archbi­shops, 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 Vitae, &c.

When a Question is had of the Attain­der of any Peer,Hakewel 84. Vid. con­tra Hart ut supra per tot. Vid. Grand Question concern­ing Bi­shops Right, &c per tetum. or other, in Parliament, the Archbishops 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 [Page 97]during the Trial,Selden of Judica­ture, p. 150. Vid. there the Prote­station of the Bi­shops. Ibid. 151. having first made Protestation, saving their Right to be present in Parliament.

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 Clergymen 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. Sed Quere.

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. Q.

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. Vid. rost. Earls and Dukes are not sworn, on Trials, &c. in Parliament.

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

The King's Assent ought to be to ca­pital Judgments,Id. 141. Vid. Id. 144.14 [...], 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 that the King's Assent is necessarily required in capital Causes and Judgments.

If a Peer be committed to Prison, the Gentleman Usher 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. 6.10. Arcana Parl. 70. 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, because it is at the Suit of the Party, Brook 142, 153. Otherwise it is [Page 99]in an Indictment of Treason or Felony, for that it is at the Suit of the King.

The Duke of Somerset in the Time of Ed. 6. was tried for Felony and Treason by his Peers upon an Indictment,Id. 71. 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 Honour, and are not charged but upon their Honours.

And 6 Maij, 1628.Sir Wm. Jones's Rep. 154, 155. It was ordered on the Question, (Nem. Dissen.) That the Nobility of this Kingdom, and Lords of the upper House of Parliament, are of antient Right to Answer in all Courts as Defendants, upon Protestation of Ho­nour only, and not upon the common Oath.

An order of the House of Lords was in 1640.Cursus Cancel. 112. That the Nobility of this King­dom, and Lords of the upper House of Parliament, and the Widows and Dow­agers of the Temporal Lords, shall An­swer (in Chancery, &c.) upon Protesta­tion of Honour only; but altho their Ho­nour may bind their Conscience in Equi­ty, yet Evidence upon their Honour, ought not to be admitted in any Court of Law.

And we must here Note, That even Lords of Parliament, or Peers of the [Page 100]Realm, in giving Evidence to a Jury, or in their Depositions in Chancery, &c. are to be Examined on Oath.

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 lyc 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. Statue 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. he ought to appear in his proper Person, and not by Attorney, unless he has a special Writ of Chancery, De attor­nato faciendo.

CHAP. V. The Power of the House of Lords.

A Peer of the Realm being Indicted of Treason, or Felony,4 Inst. 23. 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.

Vide, a Letter sent by nine Lords,Rush. Col. 3. Stat. vol. 1. f. 737. Ant. 42. (to the Parliament, June 4, 1642) who had gone from their House, and repaired to the King at York, wherein they say, ‘We do conceive, that it is the apparent usual and inherent Right belonging to the Peerage of England, that in the highest Misdemeanour whatsoever, no Peer is to Answer to the first Charge, but in his Place in his own Person, and not upon the first Charge to come to the Barr.’

In 1553. primo Mariae, Burn. His. Ref. vol. 2. p. 253. The Bill of Tonnage and Poundage was sent up to the Lords, who sent it down to the Com­mons [Page 102]to be reformed in two Provisoes that were not according to former Prece­dents. How far this was contrary to the Rights of the Commons, who now say, that the Lords cannot alter a Bill of Mo­ney, I am not able to determine.

Die Mercurij, 25 Novembris, 1692. It is Resolved upon the Question, by the Lords Spiritual and Temporal, that for the future when there shall be a Devision in the House upon any Question, the Contents shall goe below the Barr, and the Not Contents, stay within the Barr: And it is Ordered, that this Resolution be added to the Roll of standing Orders of this House.

Die Lune, 7. Decembris, 1691. It is Ordered by the Lords Spiritual and Tem­poral in Parliament Assembled, that for the future, upon giving Judgment in any Cases of Appeals, or Writs of Error in this House, the Question shall be put for Reversing, and not for Affirming: And that this be added to the Roll of stand­ing Orders.

30. Jan. 1640.Rush. Col. 3. part vol. 1 p. 165. Upon a Debate in the Lord's House, touching the Power of conveying away of Honour, it was (Ne­mine contradicente) Resolved upon the Question, that no Person that hath any Honour in him as a Peer of this Realm, may alien and transfer the same to any [Page 103]other Person. See Sir B. Shower's Cases in Parliament, 1.2. &c.

See many notable Judgments by the Lords, at the Prosecution of the Com­mons,Rush. Col. passim. & Nalson. and in later Times.

Error serra sue in Parliament,Vid. Crom. 18. Error Vid. infra. & Par­liament poet prendre Recognizance, Brook 137. Error. Error shall be sued in Parli­ament, and the Parliament may take a 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 Jus­stitia, let Justice be done) have a Writ of Error directed to the Chief Justice of the King's Bench, for removing of the Re­cord in praesens Parliamentum, &c.

And hence it may be presum'd, that Writs of Error in Parliament, were origi­nally Returnable before the Commons, as well as the Lords. See Yelverton's Rights of the Commons, and Hales of Parlia­ments, p. 18. to 23.

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

The Proceeding upon the Writ of Er­ror is only before the Lords in the Up­per [Page 104]House, Secundum Legem & Consue­tudinem Parliamenti.

The Case between Smith and Busby in a Writ or Error Resolved,2 Nalson 716. 'twas 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 1641.2 Nalson 625. Resolved by the House, Nemine contradicente, that it belongs to the House of Peers, by the antient 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. 1641.2. Nalson 381. 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 Fra­cis 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 of what Nature soever the Offence be. For where the Commons complain, the Lords do not [Page 105]assume to themselves Trial at Common Law.(Q.) Neither do the Lords at the Tri­al of a Common Impeachment by the Commons, decedere de Jure suo; for the Commons are then instead of a Jury; and the Parties Answer, and Examination of Witnesses, are to be in their Presence,Post 120. 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.Id. 98. Tho' the Lords refused to commit the Duke of Suffolk upon the Commons complaint of him of a common Fame of Treason; yet when they accus­ed him of a 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, viz.

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 [Page 106]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:Post 120. 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 secundum, 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 are 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 [Page 107]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 Upper House) have leave from the Lord Chancellor or Keeper,Sir Simon d'Ewes Journal, 527. Col. 2. to sit cover'd in the House, but are alway uncover'd at a Committee.

3. Car. 1.Petyt's Msscel. Parliam. 212, 213. The Sentence of the Lords Spiritual and Temporal, 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, or at Banbury: 4. To be fined at 200l. to the King: 5. To ask For­giveness here of all the Lords of Parlia­ment in general; and of the Lord Say and his Son in Particular, both here, and at Banbury.

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

Vide a Sentence pronounced by the Lords Die Martis, 26. Julij, 1642. a­gainst [Page 108]one John Escot, of Launceston in the County of Cornwall, for speaking Scandalously of the Parliament, in Rush. Col. Vol. 1. f. 759, 760. And likewise against John Marston, Clerk, Rector of St. Mary Magdalen, in the City of Can­terbury. ibid.

See divers particulars touching the Pow­er and Jurisdiction of the House of Lords, in Prynn's Plea for the House of Lords, &c. as also a Book printed Anno 1669. Entitled, The Grand Question concern­ing the Judicature of the House of Peers Stated, &c.

See also Sir M. Hales of Parliaments, Pa. 138, 139. and ibid 140, &c. where Attendants on the upper House may be Members of the House of Commons. Q.

CHAP. VI. 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 assirmed by Mr. Lambard, Lambard's Archeion. 257, 258. that Burgesses were chosen to the Parliament before the Conquest.

The antient Towns call'd Boroughs,Littleton, Sect. 164. are the most antient 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. Atkyn's 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 antient as the Nation itself, and may in the Sense of Julius Caesar, be ac­counted [Page 110]among the Aborigines, 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 seperately, but in conjunction with those other Estates, which they could not otherwise legally have done, if their Original and Commencement could have been shewn.

During the British Saxon, Petyt's Preface to the anti­ent Rights of the Commons &c. p. 3. and Nor­man Governments, the Freemen (or Com­mons of England, as now call'd, and dis­tinguish'd from the great Lords) were pars essentialis & constituens, an essential and constitutent part of the Wittena Gemot, Commune Concilium, Baronagium An­gliae, or Parliament in those Ages.

It is apparent,Id. 12. and past all Contradic­tion, that the Commons (in the Times of the Britons, Vid. Ch. 1 ante 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 [Page 111]Subject (and when obstructed, or denyed 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, &c. 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.

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,Crompton 2.4 Inst. 1. and the Knights, Citizens, Burgesses, and Barons of the Cinque-Ports, who repre­sent the Body of the whole Commonalty of England.

All Persons,St. 5 Rich. 2 c. 4. Rast. 140. and Commonalties, which shall be summon'd to Parliament, shall come, as they have been used and accus­tom'd of antient Time; and he that shall not come (having no reasonable Excuse) shall be amerced, and otherwise punish'd, as of antient Time hath been used.Vide ante p. 17. Algernon Sidney, c. 3. Sect. 38

An Eminent and Noble Author, has in his Discourses on Government, asserted that the Power of calling and dissolving Parliaments, is not simply in our Kings alone. And in support of this Assertion, gives us the following Reasons, viz.

First, (says he) the King can have no such Power, unless it be given him; (by Law) for every Man is naturally Free; and the same Power that makes him King, gives him all that belongs to his being King, and no more: 'Tis not therefore an Inherent, but only a Delegated Power; and whoever Receives it, is accountable to those who gave it; for they who give Authority by Commission, do always re­tain more than they Grant.

Secondly, The Law for Annual Parlia­ments expresly Declares it, not to be in the King's Power as to their Meeting; nor consequently as to their Continuance; for they meet to no Purpose if they may not continue to do the Work for which they meet; and it were absur'd to give them a Power of Meeting; if they might [Page 113]not continue till the End for which they met were attained; Qui Dat Finem Dat Media ad Finem Necessaria; the only Reason (End) why Parliaments do Meet, is to provide for the publick Good, and they ought to Meet (and continue) for that End; they ought not therefore to be Dissolved till it be accomplished; and 'twas for this Reason, that the Opinion given by Tresilian, that Kings might Dissolve Parliaments at their Pleasure,Note. was adjudg'd to be a principal part of his Treason.

See other Reasons there Assign'd; and on the whole he concludes, that Parlia­ments have in themselves a Power of Meeting, Sitting and Acting for the Pub­lick Good.

After which,Ibid p. 432. he further Prosecutes the same Point, and then proceeds to shew; That as the Peoples Delegatees or Repre­sentatives in Parliament do not meet there by a Power derived from Kings, but from those that chuse them; so they who De­legate Powers, do always retein to them­selves more than they give; and there­fore the People do not give their Dele­gates an absolute Power of doing what they please, but do always retein to themselves more than they confer on their Deputies, who must therefore be accoun­table to their Principalls. Vide plura ibid.

CHAP. VII. The Power of the House of Commons in particular Cases.

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

The House of Commons is a conside­rable Grand Jury,Trials of the Regi­cides, p. 53. 'tis a good Billa vera they return; their Orders are Records, and that appears also by 6. H. 8. c. 16. where the Words are, viz. And the same Licence shall be entred on Record, in the Book of the Clerk of the Parliament ap­pointed, or to be appointed for the Com­mon's House, &c. [Sir Audley Mervyn's Speech to the Duke of Ormond, 13. Heb. 1662. containing their Sum of Affairs in Ireland, p. 17.] And more directly in their point upon the Trial of Harrison the Regicide, Mr. Jessop was produc'd to attest several Orders of the Common's House, Mr. Jessop being Clerk of the House.

Note the said Stat. 6. H. 8. c. 16. says;Rast. Stat. p. 429. 4. Inst. 23. Hales of Parl. 213. 215. That no Member should de­part from the Parliament, nor absent themselves from the same, without the Licence of the Speaker and Commons in [Page 115]Parliament Assembled, to be entred upon Record in the Book of the Clerk of the Parliament.

And yet some Judges have been of Opinion,Hob. Rep. 110.111. that the Journals of the House of Commons are no Records, but only Remembrances.

Before the Year 1550. 3. E. 6.Bur. Hist. Ref. vol. 2. p. 143. it seems that no Eldest Sons of Peers were Mem­bers of the House of Commons; and Sir Francis Russel, becoming by the Death of his Elder Brother, Heir Apparent to the Lord Russel; it was on the 21st of January carried upon a Debate, that he should abide in the House as he was before. But this was by a special Order; so it is entered in the Original Journal of the House of Commons, and is the first Jour­nal that ever was taken in that House.

1. Car. 1. 1625. Resolved,Rush. ib. 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 Judicat. 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,Pettyt's Miscell. Pref. &c. p. 5. and not to be deny'd, 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 magna 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.

In a MS. M. S. Pe­nes W. Bo­hun. p. 5, 6. Treatise, written by Mr. Ry­mer, entitled, an Inquiry into the antient Method of passing Bills in Parliament, I find it to have been the usual Practice, Temp. Ed. 3ij. &c. See Annis Edw. 3. 14 15, 16, 20, 21, 22. 36. 33, &c. For the Commons to have first their Petitions and Bills answer­ed, (i. e. their Grievances Redress'd) and then to Grant their Aids and Supplies.

But note, These Matters often pro­ceeded pari Passu. And sometimes Aids [Page 117]were granted by the Commons, on ex­press Condition, That the King Grant the Petitions Exhibited to him, &c.

But in 47 E. 3. The Subsidy or Aid,Ibid. p. 7. is commanded to be first Treated on, or Deba­ted, which (says my Author) I remember not to have been in any other Parliament whatsoever, save that of 7 R. 2. And Note, 11 R. 2. The Commons Demand it as of Right not to Grant Subsidies till the End of the Parliament.

To give Subsidies upon Subsidies is not usual. In the 18 H. 3.Rush. vol. 1. p. 190. There was one Punished for pressing for more Subsidies, when Subsidies had been Granted before in that Parliament.

And note,See Cottons Records p. 17. 198. If any new Project was pro­posed in Parliament, for raising Subsidi­es or Supplies, the Commons usually re­ply'd thereto, That they were not In­structed by their Principals in that Mat­ter; or that they durst not consent to such Tax, &c. without Conference with their Countries.

A Member of Parliament may charge any great Officer of State with any par­ticular Offence.Rush Col. 690.

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 [Page 118]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. 1603.Petyt's Miscel. Parl. 64. 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 Rvsh. Hist. Col. 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. Col. & Nalson. Vide Petyt's Miscel. Part 74.

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

Note, The Case of Dr. Burnet, Bi­shop of Salisbury, who for writing and publishing a Book, Entitled, King Wil­liam and Queen Mary Conquerors, was Censured in Parliament, and as I think on the Commons Address, Removed from being Preceptor to the Duke of Gloucest­er, &c. Note also Bishop Fleetwood's Preface, censured and burnt by Order of the House of Commons. And see Nal­son's Col. p. 9. and 43. ten Bishops at once sent to the Tower by the Lords, &c.

4 Junij, 19 Jac. Petyt's Miscel. 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 of 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 Mis. 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, secundum Legem & Con­suetudinem Parliamenti, and the Mayor fined and imprisoned, and Mr. Long re­moved (i. e. expelled the House) for this corrupt Dealing was to poison the very Fountain it self.1

Arthur Hall, Ibid. Vid. Sir Simon d'Ewes Jour. 212. Post 89, &c. a Member of the House of Commons, for publishing and discover­ing the Conferences of the House, and writing a Book to the Dishonour of the House, was, upon due Examination, se­cundum Legem & Consuetudinem Parlia­menti, adjudged by the House of Com­mons, to be committed to the Tower for six Months,Post 87. fined at five hundred Marks, and expelled the House.

23 Apr. 1. Mariae, Ibid. Call'd Ma­rington by Scobel 113. Muncton struck William Johnson, a Burgess of B. re­turn'd [Page 121]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 punished by the House, up­on Complaint.

29 Febr. 1575, one Williams, Ibid. Vid. Sir Simon d'Ewes Jour. 251. Col. 2. 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. Ibid. 1601, 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. Jac. 1, Mr. Lovel, Ib. 114. a Member of the House, informed, That one Darryel, threatned his Person (that for a Speech spoken by him in the House, he shou'd be sent to the Tower, during [Page 122]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 Colemanstreet, 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, Rush. Col. 656. Vid. Pe­tyt's Mis­cell. Parl. 108. Ac­on's Case. Sheriff of London, 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 that 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, Towns. Col. 20. Vid. Sir Simon d'Ewes Jour. 438. Col. 1. being in Execution in one of the Compter's in London, was order'd to be brought before the Committee, with his Keeper, without Danger of an Escape in the Execution.

Note, the Case of Mr. W. Montague, who being a Prisoner in Execution, was notwithstanding elected a Burgess for Stockbridge, and discharged of his Impri­sonment by the House. See the Case in Bohun's Collection of Debates, pa. 275. to 281, where all the Precedents of this Kind are cited at large.

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;See here­after Ch. 12. and 13 but the House declar'd he shou'd not sit, till the Election were decided.

44 Eliz. 1601, the Course hath been,Towns. Col 297. 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,Nalson 753. ordered, 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,Rush. Col. 358. upon Imprisonment of their Members, and the Offence taken by the King, resolved to proceed in no other Business, till they were righted in their Liberties. See Nalson's Col. p. 3. to 21.

Dec. 1641,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 [Page 125]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,Ib. 124. Ante they are in loco proprio, 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,Ib. 158. Ante 56. 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, and the Proofs,Ib. 159. and do determine of their Judgment; yet at their Return to their own Assembly, they [Page 126]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 Judgments on Misdemeanors,Ib. 162. Ante 58. 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 are to demand 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,Vid. Post 80. 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,Note. and Judges in such Quo Warranto's and Proceedings, are pu­nishable, as in Parliament shall be thought consonant to Law and Justice.

And note,See Bo­hun's Inst. Legalis 186.190. &c. The Practice and Proceed­ings on Quo Warranto's, Mandamus's, and some other Prerogative Writs, seem to have been an Invention of the Judges, in order to draw the Rights and Privileges [Page 128]of Burroughs and Corporations, as well as of the People under the Cognizance of B. R. &c.

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 Atkyn'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 itself; 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;See this Case re­ported at large, in Bohun's Debates in Parlia­ment, p. 276. &c. Ibid. after mature deliberation, they an­swer'd, It was not their part to judge of the Parliament, which may judge of the Law.

The Reason, to judge of the Law, sig­nifies that they (the Parliament) can [Page 129]judge whether a Law be good, or not; in order to approve it, and to re-enact it; or to repeal a Law, &c.

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

It was said by Mr. Justice Crook, Id. 58. Rush. Col. 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. See Sir R. Atkins's Argu­ment, per Totum. 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, ordered,Sir Simon d'Ewes Jour. 347, Col. 2. 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.

See and Note the Case of Judge Thorp, Cottons Rec. 74 and 316. who 25 E. 3. was condemn'd to Death, and to forfeit all his Lands and Goods for Bribe­ry, i. e. receiving 20 l. from a Person who had a Cause depending before him.

Note in the Parliament 11 R. 2. com­monly called, The Wonder working Par­liament, [Page 130]all the Judges, as they were sit­ting in Westminster-Hall, were arrested, &c. by Order of Parliament. And the like happen'd to several Judges in the Convention Parliament upon the Revolu­tion; but Quere if their Commitment was by the Lords and Commons, or by the Commons only?

See also the Journal of the House of Commons,Journal of the Commons An. 1680. Anno 1680, several Orders and Resolutions of the Commons, against di­vers of the Judges and others, for encou­raging Addresses, &c. in Order to ob­struct the Meeting and Sitting of that Parliament.

And see there December the 30th, the following Resolutions of that House, viz.

  • 1. That the several Writings, Papers and Proceedings relating to such Mem­bers, of the late Long Parliament of Pen­sioners, who receiv'd Allowances out of the Monies appointed for secret Services, be produced to this House.
  • 2. (Nem. Contr.) That no Member of this House, shall accept of any Office or Place of Profit from the Crown, without the Leave of this House; nor any Pro­mise of any such Office or Place, during his being or continuing a Member of this House.
  • 3. That all Offenders herein be ex­pell'd this House.

See there also the Report and Censure of the the Proceedings of divers of the Judges of Westminster-Hall, viz. Sir Francis North, Sir W. Scroggs, Justice Jones, and Baron Weston; whereupon the House came to the following Resolu­tions, viz.

  • 1. That the Discharge of the Grand Jury of the Hundred of Osulston, in Com. Middx. by the Court of B. R. in Trin. Term last, before the last Day of the Term, and before they had finished their Presentments, was arbitrary and illegal, destructive to publick Justice, a manifest Violation of the Oaths of the Judges of that Court, and a Means to subvert the fundamental Laws of the Kingdom, and to introduce Popery.
  • 2. That the Rule made by the Court of B. R. in Trinity Term last, against Printing of a Book, called, The Weekly Pacquet of Advice from Rome, is ille­gal and arbitrary; the Judges thereby u­surping to themselves Legislative Power, to the great Discouragement of the Pro­testants, and countenancing of Popery.
  • 3. That the Court of King's Bench, in the Imposition of Fines on Offenders, have of late Years acted arbitrarily, ille­gally and partially, favouring Papists, and Persons popishly affected, and excessively oppressing his Majesty's Protestant Sub­jects.
  • [Page 132]4. That the refusing sufficient Bail in those Cases wherein the Persons commit­ted were Bailable by Law, was illegal, and a high Breach of the Liberties of the Subject.
  • 5. That the Expressions in the Charge given to the Grand Jury by Baron Weston, were a Scandal to the Reformation, and tending to raise discord between His Ma­jesty and his Subjects, and to the Subver­sion of the antient Constitution of Parlia­ments, and of the Government of this Kingdom.
  • 6. That the Warrant mentioned in the Report (i. e. for Harry Carrs Commit­ment, &c.) was arbitrary and illegal.

And then follow the several Resoluti­ons for Impeaching the Judges above-na­med,See also Ibid. Jan. 3. and the Articles against Scroggs, &c.—And,

Jan. 4. 1680, resolved (Nem. Cont.) That such Members of this House, who in this Time of imminent Danger, do ab­sent themselves without Leave of the House, are to be reputed Deserters of their Trust, and Neglecters of that Duty they owe to this House and their Coun­try.

27 Eliz. 1584, John Bland, a Curri­er, for making dishonourable Reflections on the House of Commons, brought to the Bar, and pardoned upon his Submission, [Page 133]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 (Judges) in Parliament.

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

23 Eliz. 1580.Ibid. 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, [Page 134]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 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 Scrjeant's Fees.

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

1 Jac. 1.Id. 98. Bryan Tash, a Yeoman of his Majesties Guard, for keeping the Door of the Lobby of the upper 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.Id 104. Dr. Harris, for mis-behave­ing 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, com­mited 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 Parliament, One Levet, Id. 106.107. 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.

As to the Powers exercised by the House of Commons, Anno 1640, in re­straining the Excesses of Episcopal Juris­diction, and redressing other Grievances arising from Ecclesiastics. See Mr. Tin­dal's Translation of Rapin, vol. 2. pa. 361.363. &c.

CHAP. VIII. Of the Power of the House of Commons over their own Members.See the precedent Chapter. p. 130 & 132. Scelel 72

THO' Freedom of Speech and De­bates be an undoubted Priviledge of the House; 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 suture Parliament.

17 Maij 1572.Ibid. Vide d'Ewes Jour. 212. Vid. Petyts Misceell. 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, should 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 [Page 137]Words in Writing, and deliver the same to the Speaker. On Monday Mr. Hall being 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. Peter Wentworth, Id 73. Vide Sir Simon d'Ewes Journal, 244. Col. 1 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. Par. a. p. 20 ad p. 63. Ante 71. 23 Eliz. Complaint was made in the House against Arthur Hall, Esq (spoken of before) who had caus'd a Book to be Printed, wherein 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 [Page 138]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: Vide post. 143. and Bohun's Coll. 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.

Note, Ibid. It appeareth by the Journal 21 Nov. 1586. That he was disabled for ever to serve in Parliament Quere post. 141.146.

17 Dec. 1584. 27 Eliz. Id. 76. Vide Sir Simon d'Ewes Jour. 340.341, 342. A Bill against Jesuits and Seminary Priests pass'd upon the Question. Dr. Parry only gave a Negative, and after inveighed in violent Speeches against the whole Bill; affirm­ing it to savour of Treason, 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 [Page 140]out of the House, after some Ar­guments and Debates it was resolved, up­on this Acknowledgement 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 Jour 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 deserve­eth 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 aVid. Post Conysby's Case. Monopolist, and for other great and insufferable Crimes by him Commit­ted, to the Abuse of his Majesty, and grievous Oppression of the Subjects; was turn'd out of the House, committed to the Tower, and after Impeached before the Lords, who gave Judgment upon him.

  • 1.
    Petyt's Miscel. Par. 91, 92
    To be degraded of the Order of Knighthood.
  • 2. To stand perpetually in the degree of a Person Out-lawed 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, nor 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.
  • 8. That he should be fined at 10,000 l.
  • 9. He was also disabled to hold or re­ceive any Office under the King, or for the Common-wealth.
  • 10. 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 una 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 Conserence; 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 Bucking hamshire, 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 In­victive 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 [Page 143]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 shou'd be dimiss'd 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 favouring a Puritan, and factious Spirit; Exceptions were taken at the Words. Af­ter he had explained himself, he was or­dered o withdraw out of the House; and Debate being had, he was call'd to the Bar, and upon his Knees he received [Page 144]the Judgment of the House pronounced by the Speaker, That he should 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 should be expell'd the House, Anto 139. be made uncapable of ever being a Member of this House, [Page 145]and should 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 were offer'd to Sir R. Owen, when he was in the Chair at the Committee (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 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 [Page 146]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. 2 Nalson 513 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, 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, Id. 596. a Member of the House, having granted many Protections for Money, taking for some sixteen, se­venteen, forty shillings, and twenty for ten shillings a piece. Resolved upon the [Page 547]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, Id. 710. Expell'd the House for a Speech (made with great strength of Reason and Courage, 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, Id. 27 [...]. and Sir Herbert Price, sent to the Tower, for bringing in Candles against the Desire of the House.

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 allow'd by this House, shall have a Fine set upon him to her Majesties use; and upon every Citizen and Burgess for the like, ten Pounds.

1 Jac. 1. 1603. Mr. Lawrence Hide, Petyt's Miscel. Parl: 147. (pretending Business of his Clients, &c.) made known to the House, That he would goe out of Town, and so took his Leave in open Audience, without the Assent or Leave of the House, which was Taxed (Censured) by the House, and Mr. Speaker ordered to write to him.

It was also moved and Resolved,Ib. 149. That Mr. Speaker should write another Letter to other Lawyers being gone down in the same Circuit where Mr. Lawrence Hide was, advising them to Return and attend the House.

Hither may be referred, The Case of the several Lawyers, Members of the House,March 173.4. &c. Committed by the House, for appearing as Council in the Case of Ashby and White, touching the Election for Aylesbury in the County of Bucks.

12. Mar. 1694.Bolun's Col. of Debates, &c. p. 331. and See there p. 354. Mr. Hungerford expell'd for a like Cause. Resolved by the House, That Sir John Trevor, Speaker of this House, in receiving a Gratuity of one thousand Guineas from the City of London, after passing of the Orphans Bill, is guilty of a High Crime and Mis­demeanor.

And a few Days after he was only Ex­pelled the House; too mild a Punishment for so flagrant a Crime! King Edw. 3. would have Hang'd him as well as Judge Thorp: But Times change by great Ex­amples. And we have seen greater Crimes since Escape scot Free.

CHAP. IX. Concerning Elections of Members.

Vid. of this Mat­ter, Lit. rep. 327.8.9.30. &c. 5 R. 2 St. 2. c. 4.ALL Persons and Commonalties who shall be summon'd to the Parliament, 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. Vide 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 that Parliament.

Where the Parliament Writ speaks de qualibet Civitate Comitatus illius, Arc. Parl. 22. Vide Cromp. 3. this is 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,Sir Simon d'Ewes Jour. 396.397. resolved, That the House of Commons are the only compe­tent Judges concerning Elections, which are duly made, and 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 that 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 antient Time hath been wont to find Burgesses of the Parliament, so to make Election of their Members, 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, vel Pretio without any Prayer or Gift, and sine Praecepto, without Com­mand-the [Page 151]King by Writ, or otherwise, or of any other.

The King, de advisamento Concilii, 4 Inst. 4. 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. 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, are entrusted for them,Ibid. and are in Number at this Time, now 558, viz. 513 for England, and 45 for Scotland.

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 coagmentative, and partly representative.

Every Member of the House being a Counsellor for the Kingdom,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 [Page 152]perfect Memory, as appeareth in Parli­ament Roll, Rot. Parl. 3 H. 6. n. 3.

The Knights of the Shire are chosen by all the Gentlemen and Yeomen (i. e. Freeholders) of the Shire,Arc. Parl. 5. Smith's Common­wealth, 77. present at the Day assign'd for the Election: The Voice of any absent is to be counted for none.

Concerning the Writs for summoning the Knights and Burgesses; and the Re­turn of the Sheriff thereupon Vide Cromp­ton's Juris. 1.2.

Every Englishman is intended to be there present,Arc. Parl. 3. either in Person, or by Procuration and Attorney; and the Con­sent of the Parliament is taken to be eve­ry Man's Consent.

These meeting at one Day,Id. 10. Smith's Common­wealth, 77. the two who 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 Ci­tizens and 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, Secundum 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. Vide 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,Sir Simon d'Ewes Jour. 430, 622. & passim. Petyt's Mis­cel. Parlia­ment. 112, 113. may choose for which he will serve.

21 Jac. 1, Edward Ingry, Under-She­riff of Cambridgeshire, for refusing the Poll (declaring that Sir Thomas Steward promised to defend him against Sir John Cutts) was brought to the Bar, and kneeling upon his Knees, adjudg'd to be [Page 154]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 to read a Submission.

After the Precept of the Sheriff dire­cted to the City or Borough for making an Election;Id. 49. there ought, secundum 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.

When there is a Corporation made by Charter;Hobart 15. Dungan­non's Case in Ireland. 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 [Page 155] mandment of 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 Burgesses 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, resolved,Sir Simon d'Ewes, 244. Col. 2. Vide con­tra Sir Simon d'Ewes Jour. 281, 282. 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.

Nota Bene, By the Claim of Right,St. 1. W. & M. Ses. 2. c. 2. made on the Abdication of King James the 2d, it was declared, That all Ele­ctions of Members to Parliament, ought to be free; and twas enacted accordingly. See the Statute, and also the following Chapter.

CHAP. X. Who may be Electors.

ELectors are to attend to Elect Knights of the Shires,Knights of the Shire. St. 7. H. 4. c. 15. on Proclamation to be made at the next County Court, after the Delivery of the Writ to the Sheriff, and to proceed to (in) the Election freely and indifferently, notwithstanding any Command to the contrary.

Electors of such Knights,Ibid. & St 8. H 6 c. 7 after the E­lection to seal an Indenture, containing the manner of the Persons chosen, which is to be annexed to the Writ, and be the Sheriffs Return, and none to Elect who cannot Expend 40 s. by the Year.

Electors of Knights of the Shires,St. 1 H. 5. c. 1. 8. H. 6. c. 7. 10. H. 6. c. 2. to be only of such Persons as are resiant and dwelling within the said Shire at the Date of the Writ.

No Person shall be an Elector of the Knights for the Parliament,St. 8. H. 6. c. 7. 10. H. 6. c 1, 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, how much he may [Page 157]expend by the Year,Crompt. Ju­risdict. 3. if he doubt the va­lue of it.

Every Freeholder (electing such Knights) to be Sworn before admitted to Poll, if so required by any Candidate,St. 7.8. W. 3 c. 25. St. 10. A. c. 23. The Free­holder's Oath. See the Candi­date's Oath. c. 10 and the Oaths of Allegi­ance and Suprema­cy, &c. post. and this Oath altered 10 Annae infra or other Person that hath Right to Elect. Note, the said Oath by Sta. 10 Annae is thus. You shall Swear that you are a Freeholder within the County of—and have Freehold Lands or Hereditaments, lying, or being at—in the County of—of the yearly value of 40 s. above all Charges, payable out of the same; and that such Freehold Estate hath not been made, or granted to you fraudulent­ly, on purpose to qualifie you to give your Vote, and that the Place of your Aboad is at—in (the County)—and that you have not Polled before at this Electi­on.—So help you God.

Trustees or Mortgagees,St. 7.8. W. 3. c. 25. are not to be Electors unless in Possession, or Receive the Rents of the Estate; but the Mortgagor or Person to whose use the Trust is may.

Conveyances of Houses, Lands,Ibid. &c. in Parcels to several Persons, in order to multiply Votes to be Void; and no more than one Vote admitted for one Tenement, nor any to be an Elector under 21 Years.

That Persons refusing the Oaths,St. 7.8. W. 3. c. 27. that or being Quakers, subscribing the Declara­tion [Page 158]of Fidelity, not to be admitted to Vote, &c.

That all collusive Estates and Convey­ances made to qualify Electors for Knights of the Shire (i. e. Subject to a conditio­nal Determination,St. 10. A. c. 23. or Reconveyance, &c.) shall be taken and held as Free and Ab­solute against the Grantor; and all Bonds, Convenants, &c. for Restoring, or Recon­veying thereof, are declared Null and Void; and the Maker, Adviser, and Vo­ter shall each (every) of them forfeit 40 l. with full Costs to any that will Sue in any Court at Westminster, and no Es­soign, &c.

Also none to Vote for such Knights in right of any Lands not assessed to the publick Taxes, Church Rates and Parish Duties, in proportion to other Lands of 40 s. per Annum in the same Parish; and for which he shall not be entitled to 40 s. Rent before the Election, unless it come to him by Descent. And Voting other­wise, forfeits 40 l. one Moiety to the Poor where the Lands lye, and the other to the Prosecutor.

And note, This Act repeals only so much of the Statue 7 W. 3. as concerns the Oath to administred to Freeholders, and therefore this Statute further Enacts.

That if any Quaker (during the con­tinuance of an Act passed 7 W. 3. That [Page 159]the Solemn Affirmation and Declaration of the People called Quakers,St 10. A. c. 23. Quaker's Affirma­tion. shall be accepted instead of an Oath, &c.) shall on such Election if required by any Can­didate, Declare the Effect of the said Oath on his solemn Affirmation as direct­ed by that Act, the Sheriff, &c. is re­quired to accept the same instead of the said Oath. But if such Quaker shall be after Convicted, to have Wilfully, Falsly,If false, guilty of Perjury, vid. infra. and Corruptly, Affirmed or Declared; he is to incurr the same Penalties and For­feitures, as Persons Convicted of Wilful and corrupt Perjury. Vide infra.

That the said Act 10 Annae, St. 12. A. Sess. 1. c. Rents Tythes Incorpo­real Inhe­ritances. Chambers in Inns of Court or Chancery. &c. shall not Extend to Restrain any Person from Vot­ing, in Right of any Rents, Tythes, or other incorporeal Inheritances, or any Messuages or Lands in Extraparochial Places; or any Chambers in the Inns of Court, or Inns of Chancery; or to any Messuages or Seats belonging to any Of­fices, or in Right of any other Messuages or Lands that have not been usually Charged and Assessed to all and every the publick Taxes, Church Rates and Parish Duties.Proviso. Provided such Messuages or Lands have been usually Charged or Assessed, to some one or more of the said publick Taxes, or Duties, in such Pro­portion as other Messuages or Lands of [Page 160]40 s. per Annum. within the same Parish or Township, are usually Charged.

Note,St. 10. A: c. 23. The Form of the Freeholders Oath required by the 7, 8, W. 3. was abo­lished by this Statute, and the following Form Substituted, viz.

You shall Swear (or being a Quaker,Freehol­der's Oath you shall in the presence of Almighty God, Declare) that you are a Freehold­er in the County of—and have Free­hold Lands, or Hereditaments, lying, or being at—in the County of—of the yearly value of 40 s. above all Charges payable out of the same. And that such Freehold Estate hath not been made, or granted to you Fraudulently, on purpose to qualifie you to give your Vote; and that the Place of your Aboad is at—in the County of—And that you have not been Polled before at this Election.

The Form of the Oath to be taken by Freeholders, &c. (on an Objection made) by Statute 12 Annae, viz.

I. A. B. Doe in the presence of God Swear, Freehol­der's Oath by St. 12. Ann. (or if a Quaker, Declare) That the Lands and Estates of—for which I claim to give my Vote in this Election, are not conveyed to me in Trust, or for [Page 161]the behoof of any Person whatsoever: And I do Swear (declare) before God, that neither I, nor any Person to my Knowledge, in my Name, or by my al­lowance, hath given, or intends to give any Promise, Obligation, Bond, Back-Bond, or other Security, for re-disposing, or re-conveying the said Lands and Es­tate, any manner of way whatsoever; and this is the Truth as I shall Answer to God.

The Freeholders Oath appointed to be taken,By St. 2. Geo. 2. c. 24. Sect. 1. by Statute 2 Geo. 2. if Demand­ed by either of the Candidates, or any two of the Electors.

I. A. B. Doe Swear (or being one called a Quaker) doe solemnly affirm, That I have not received, or had by my self, or any Person whatsoever in Trust for me, or for my Use, and (or) Bene­fit, directly or indirectly, any Sum or Sums of Money, Office, Place or Imploy­ment, Gift or Reward, or any Promise, or Security for any Money, Office, Im­ployment, or Gift, in order to give my Vote at the Election, and that I have not before been Polled at this Election.

But note,Ibid. Sect. 2. This Oath seems intended for other Voters, besides Freeholders; [Page 162]for by Sect. 2. of the same Stat. 'Tis En­nacted, That such Votes, &c. Ante. p. 132.

Citizens and Burgesses within Cities and Burroughs,St. 23. H. 6. c. 15. to Elect Citizens and Bur­gesses of the same; and the Sheriff is to direct his Precept accordingly.

That the Nomination,St. 2. W. M. c. 7. See 1 W. M. Sess. 2. c. 2. Supra or Recommen­dation, to the Electors of one of the Ba­rons of each Cinque Port, the two anti­ent Towns, and their Members claimed by the Lord Warden is contrary to Law, and Void.

By the claim of Right made on the Abdication of King James the II.Claim of Right. All Elections of Members of Parliament ought to be Free, and it was Enacted according­ly. See the Stat. Et vide post.

No Collector, St. 5. W. M. c. 20. Officers of the Excise. Supervisor, Gauger, or other Officer, or Person whatsoever, Con­cerned or Imployed in the Charging, Col­lecting, Levying or Manageing the Duti­es of Excise, or any Branch, or Part thereof, shall by Word, Message or Write­ing, or in any other manner, persuade a­ny Elector to give, or disuade any Elect­or from giving his Vote, for the Choice of any Person to be a Knight of the Shire, Citizen, Burgess, or Baron of any County, City, Burrough or Cinque-Port; and every Officer, or other Per­son offending herein,Penalty. to forfeit 100 l. one Moiety to the Informer, and the other [Page 163]to the Poor, where the Offence is com­mitted; to be recoverd by him that Sues for it by Action, of Debt, Bill, Plaint or Information, in any Court of Record at Westminster. And no Essoign, Pro­tection, Privilege, or Wager of Law, or more than one Imparlance; Incapa­city. and the Par­ty Convicted to be for ever Incapacitated to bear any Office, or Place of Trust un­der the Crown.

No Commissioner, Collecter, Comptrol­ler,St. 12.13. W. 3. c. 10 Offi­cers of the Customs. Searcher, or other Officer, or Person concerned, or imployed in Discharging, (chargeing) Collecting, Levying, or Managing the Customs, or any Branch, or thereof, shall by Word, Message, or Writing, &c, (as above for the Excise) Officers, with the like Penalty, Incapa­city, &c.

In many Cases Multitudes are bound by Acts of Parliament,4 Inst. p. 5. which are not Par­ties to the Elections of Knights, Citi­zens, and Burgesses; as all they that have no Freehold, or who have Freehold in ancient Demesne, and all Women having Freeholds, 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, half to the King,St. 33. H. 8. c. 1. Ire­land. 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;Crempton's Juris. 3. b. for it shall be said in Law a Dwelling in either of those Counties.

If the Mayor and Bailiffs (or other Officer,St. 23 H. 6. c. 15. Vid Cromp. Jur. 3. b. 4.2. 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 Bailiff, &c. Return'd; or to any other Person that will Sue for it, for­ty Pounds.

‘That such Votes shall be deemed le­gal,St 2. G. 2. c. 24. ibid. Sect. 2. What Votes shall be deemed legal. which have been so declared by the last Determination in the House of Com­mons; which last Determination con­cerning any County, Shire, City, Bo­rough, Cinque-Port, or Place, shall be sinal to all Intents and Purposes, any Usage to the contrary.’

‘That no Person convicted of wilful and corrupt Perjury,Sect. 4. Persons convicted of perjury never ca­pable to vote. or Subornation of Perjury, shall, after such Conviction, be capable of Voting in any Election of [Page 165]any Member or Members to serve in Parliament.’

‘That if any Elector shall ask, receive,Sect. 4. Persons taking Money or Reward for their Vote, &c. or take any Money, or other Reward, by way of Gift, Loan, or other De­vice, or agree or contract for any Mo­ney, Gift, Office, Imployment, or o­ther Reward whatsoever, to give his Vote; or to refuse or forbear to give his Vote; or if any Person by himself, or any imployed by him, shall, by any Gift or Reward, or by any Promise, Agreement, or Security for any Gift or Reward, corrupt or procure any Person to give his Vote, or to forbear to give his Vote, in any such Election, such Person shall for every such Offence for­feit the Sum of five hundred Pounds,On Con­viction Forfeits 500 l with full Costs of Suit; and every such Person after Judgment obtained against him in any Action of Debt, Bill, Plaint, or Information, or summary Action, or Prosecution, or being any otherwise lawfully Convicted thereof, shall for e­ver be disabled to Vote in any Election to Parliament, and also to hold, exercise,And dis­abled to Vote, or to enjoy any Office or Fran­chise. or enjoy any Office or Franchise, to which he and they then shall, or at any time afterwards may be intitled, as a Member of any City, Borough, Town Corporate, or Cinque-Port, as if such Person was naturally Dead.’

‘And that if any Person offending a­gainst this Act,Sect. 5. Offenders in 12. Months after the Election discover­ing others in femnifi­ed. shall within twelve Months after such Election, discover any other Person offending against this Act, so that such Person be thereupon Con­victed, such Person so discovering, and not having been before that time Con­victed of any Offence against this Act, shall be indemnified, and discharged from all Penalties, which he shall then have in­curred by any Offence against this Act.’

Enacted that forty five shall be the num­ber of the Representatives of Scotland in the House of Commons of the Par­liament of Great Britain.Stat. 5. Annae. c. 8. the Union Act.

‘Of the said Forty-five Representa­tives of Scotland, Members for Scotland Thirty shall be chosen by the Shires, and Fifteen by the Roy­al Burghs (as follows, viz.) one for e­very Shire and Stenartry, (excepting the Shires of Bute and Caitness, which shall choose one by turns, Bute having the first Election; the Shires of Nairn and Cromarty, which shall also choose by turns, Nairn having the first Election; and in like mannet the Shires of Clack­mannan and Kinross shall choose by turns; (Clackmannan having the first Election) and in case of the Death or legal Incapacity of the said Members [Page 167]from the said respective Shires or Steu­artries,Scotland. the Shire or Steuartry who e­lected the said Member, shall elect ano­ther Member in his Place. And that the said Fifteen Representatives for the Royal Burghs shall be chosen as follows, viz. That the Town of Edinburgh shall have Right to elect and send one Member, and that each of the other Burghs shall elect a Commissioner in the same manner as usual to elect Commissi­oners and Burghs (Edinburgh excepted) being divided into fourteen Classes or Districts, shall meet at such time and Burghs within their respective Districts, as her Majesty, her Heirs or Successors shall appoint, and elect one for each District, (viz.) the Burgs of Kirk­wall, Week, Dornock, Dingwall and Tain, one: The Burghs of Fortrose, Inverness, Nairn and Forress, one; The Burghs of Elgin, Cullen, Bamff, Inverary, and Kintore, one: The Burghs of Aberdeen, Inverbery, Mon­trose, Aberbrothock, and Brochine, one: The Burghs of Forfar, Perth, Dundee, Coupar, and St. Andrews, one: The Burghs of Craill, Kilren­ny, Anstruther Easter, Anstruther Wester, and Pittenween, one: The Burghs of Dysart, Kirkaldie, King­horn, and Bruntsland, one: The Burghs [Page 168]of Innerkethen, Scotland. Dunfermline, Queens­ferry, Culross, and Sterling, one: The Burghs of Glasgow, Renfrew, Rug­len, and Dumbarton, one: The Burghs of Haddington, Dunbar, North-Ber­wick, Lauder and Jedburgh, one: The Burghs of Selkirk, Peebles, Linlith­gow, and Lanerk, one: The Burghs of Dumfreis, Sanquhar, Anna, Lock­maben, and Kirkeudbright, one: The Burghs of Wigtown, New Galloway, Stranraver, and Whitehorn, one: The Burghs of Air, Irvin, Rothesay, Cam­bletown, and Inverary, one. And where the Votes of the Commissioners for the said Burghs met to choose Re­presentatives from their several Districts, shall be equal, the President of the Meeting shall have a casting or decisive Vote, and that by and according to his Vote as a Commissioner from the Burgh from which he is sent; the Commissi­oner from the eldest Burgh presiding in the first Meeting, and the Commission­ers from the other Burghs in their re­spective Districts, presiding afterwards by turns in the order as the said Burghs (used to be) called in the Rolls of the Parliament of Scotland; and that in case any of the said fifteen Commission­ers from Burghs shall decease, or become legally incapable to sit in the House of [Page 169]Commons, then the Town of Edin­burgh, Scotland. or the District which chose the said Member, shall elect a Member in his or their Place.’

‘That none shall be capable to elect (a Representative for any Shire or Burgh of Scotland) unless twenty one Years of Age complete, and Protestant, ex­cluding all Papists, or such who being suspect of Popery, and required refuse to swear and subscribe the Formula, contained in the third Act made in the eight and ninth Sessions of King Willi­am's Parliament (in Scotland) nor shall be capable to elect (a Representative to) a Shire or Burgh in the Parliament of Great Britain (for Scotland) except such as (were at the time of passing this Act) capable by the Laws of (Scot­land) to elect as Commissioners for Shires or Burghs to the Parliament of Scotland.

Enacted, Stat. 6 A. c. 6. &c. That when any Parlia­ment shall at any time hereafter be sum­moned or called, (on Notice to be forth­with given after Receipt of the Writs by the Shertff, or Stewart, of the time of Election for Knights of the Shire or Commissioners for Scotland) at such time of Election the several Freeholders in the respective Shires, and Stewartries shall meet and convene at the head Burghs of their several Shires and Stewartries, [Page 170]and proceed to the Election of their re­spective Commissioners or Knights for the Shire or Stewartry;Scotland. and the Clerks of the said Meetings shall respectively return the Names of the Persons Elect­ed to the Sheriff or Stewart of the Shire or Stewartry (on a Precept in like man­ner to be directed by the Sheriffs of Edinburgh, to the Lord Provost of that City) and on Receipt of such Precept, the City of Edinbusgh shall elect their Member, and their common Clerk shall certify his Name to the Sheriff of Edin­burgh.

On Precepts in like manner to be di­rected by the Sheriffs or Stewarts of the several Shires or Stemartries, where the other fourteen Districts of Royal Burghs respectively are, reciting the Contents and Date of the Writ, and commanding them to elect each of them a Commissioner, as they used formerly to elect Commissioners to meet at the presiding Borough of their respective District, (naming it) on the thirtieth day after the Teste of the Writ, unless Sunday, and then the next day after, and then to choose their Burgess for the Parliament. The common Clerk of the then presiding Borough, shall im­mediately after the Election, return the Name of the Person so Elected to the [Page 171]Sheriff or Stewart of the Shire,Scotland. or Stewartry wherein such presiding Bo­rough is. And in case a vacancy shall happen in time of Parliament, by the decease or legal incapacity of any Mem­ber, a new Member shall be Elected in his Room conformable to the method herein before appointed; and in case such Vacancy be of a Representative for any one of the said fourteen Classes, or Districts for Royal Boroughs, that Bo­rough, which presided at the Election of the deceased or disabled Member, shall be the presiding Borough at such Election.’

‘That from and after the Determina­tion of this present Parliament,2 St. 12. Annae. no Con­veyance or Right whatsover, whereupon Infeoffment is not taken, and Seisin re­gistred One Year before the Teste of the Writs for calling a New Parliament, shall, upon Objection made in that Be­half, intitle the Person or Persons, so Infeoft, to Vote at that Election, in any Shire or Stewartry in that Part of Great Britain called Scotland; and in case a­ny Election happen during the Contin­uance of a Parliament, no Conveyance or Right whatsoevel, whereupon Infe­offment is not taken One Year before the Date of the Warrant for making out a new Writ for such Election, shall, [Page 172]upon Objection made in that Behalf,Scotland in­title the Person or Persons so Infeost, to Vote at that Election; and that it shall be lawful for any of the Electors pre­sent, suspecting any Person or Persons to have his or their Estates in Trust, and for the Behoof of another, to re­quire the Praeses of the Meeting to tender the Oath (in this Act contained) to any Elector; and the said Praeses is hereby impowered and required to ad­minister the same.’

‘In case such Elector refuse to Swear, and also to subscribe the said Oath, such Person or Persons shall not be capable of Voting at such Election.’

‘Notwithstanding such Oath taken, it shall be lawful to make such other Ob­jections as are allowed by the Laws of Scotland against such Electors.’

‘No Infeoffment taken upon any re­deemable Right (except proper Wad­setts, Adjudications, or Apprisings al­lowed by the Act of Parliament relate­ing to Elections in One thousand six hundred eighty one) shall entitle the Persons so Infeoft, to Vote at any E­lection in any Shire or Stewartry: And no Person or Persons, who have not been Enrolled, and Voted at former E­lections, shall upon any Pretence what­soever be Enrolled or admitted to Vote [Page 173]at any Election,Scotland. except he or they first produce a sufficient Right or Title to qualifie him or them to Vote at that E­lection, to the satisfaction of the Free­holders formerly Enrolled, or the Ma­jority of them present; and the return­ing Officers are hereby ordained to make their Returns of the Persons Elected by the Majority of the Freeholders en­rolled, and those admitted by them, re­serving always the Liberty of objecting against the Persons admitted to, or ex­cluded from the Roll, as formerl.’

‘The Right of Apparent Heirs in Voting at Elections by Virtue of their Predecessors Infeoffments, and of Hus­bands by Virtue of their Wives Infeoff­ments, reserved.’

‘Any Conveyance or Right, which by the Laws of Scotland is sufficient to qualify any Person to Vote in the E­lections of Members of Parliament for Shires or Stewartries, and whereupon Infeoffment is taken on or before the first Day of June, in the Year of our Lord One thousand seven hundred and thirteen, shall intitle the Person or Per­sons so Infeoft, to Vote at the Electi­ons of Members to serve in the next ensuing Parliament.’

‘No Husband shall Vote at any en­suing Election by Virtue of their Wives [Page 174]Infeoffments,Wales. who are not Heiresses, or have not Right to the Property of the Lands, on account whereof such Vote shall be Claimed.’

‘Ordained,St. 23. H. 6. c. 15. Vide post. &c. That every Sheriff, after the Delivery of any Writ (of E­lection) to him made, shall make and deliver without Fraud a sufficient Pre­cept under his Seal to every Mayor and Bailiff, &c. of the Cities and Boroughs within his County, commanding them by his Precept, if it be a City, to choose by Citizens of the same City, Citizens; and in the same manner and form if it be a Borough, (to choose a Burgess) by the Burgesses of the same, to come to the Parliament.’

‘Enacted,St. 23 H. 8. c. 26. Wales. &c. That the Dominion of Wales shall be, stand, and continue for ever from henceforth Incorporated, U­nited, and Annexed to and with the Realm of England; and that all and singular Person and Persons, born and to be born, in the said Principality, Country, or Dominion of Wales, shall have, enjoy and inherit all and singular Freedoms, Liberties, Rights, Privileges, and Laws, within this Realm, and o­ther the King's Dominions, as other the King's Subjects naturally Born within the same) have, enjoy, and inherit.’

‘For all Parliaments to be holden and kept for this Realm,Wales. two Knights to be elected to the same Parliament for the Shire of Monmouth, in the like Man­ner, Form, and Order, as Knights and Burgesses be elected and chosen in all o­ther Shires.’

‘And that one Knight shall be Elect-for every of the Shires of Brecknock, Radnor, Montgomery and Denbigh, and for every other Shire within Wales, and for every Borough being a Shire-Town within Wales (except the Shire Town of the County of Merioneth) one Burgess, and the Election to be in like Manner, as Knights and Burgesses of the Parliament be Elected in other Shires.’

‘That the Burgesses of all and every Cities, Boroughs,St. 35. H. 8 c. 11. and Towns (in the twelve Shires within Wales and County of Monmouth, not finding Burgesses for the Parliament themselves, and contri­butary to Wages of Burgesses of such Shire-Towns) shall be lawfully admo­nished by Proclamation, or otherwise, by the Mayors, Bailiffs, and other Head Officers of the said Towns, or by one of them, to come and give their Elections for the Electing of the said Burgesses, at such Time and Place, Lawful and Reasonable, as shall be assigned for the [Page 176]same intent by the said Mayors,Chester. Bailiffs, and other Head Officers of the said Shire-Towns, or by one of them, in which Elections the Burgesses shall have the like Voice and Authority to elect the Burgesses of every the said Shire-Towns, in such Manner, as the Bur­gesses of the said Shire-Towns have and use.’

‘That the County Palatine of Chester shall have two Knights for the said County Palatine;St. 34 & 35 H. 8. c. 13. Chester. and likewise two Ci­tizens to be Burgesses for the City of Chester; the same Election to be made under like Manner and Form, to all In­tents, Constructions, and Purposes, as is used within the County Palatine of Lan­caster; or any other County or City within this Realm.’

‘That the County Palatine of Dur­ham may have two Knights for the same County,St. 25. c. 2. c. 9. Durham and the City of Durham two Citizens to be Burgesses for the same City, for ever hereafter to serve in Parliament; the same Election from time to time to be made in Manner following, viz. The Elections of the Knights to serve for the said County Palatine, to be made by the greater Number of the Freeholders of the said County Palatine that shall be present at such Elections, as is used in other Coun­ties, [Page 177]and that the Election of the said Burgesses from Time to Time,Vid. Post 190.191, shall be made by the Major part of the Mayor, Aldermen and Freemen of the City, which shall be present at such Election.’

‘See also the Stat. 34 35 H. 8. c. 24.Cambridge. concerning the Payment of the Wages of the Knights of the Shire for Cambridge.

The Form of the Abjuration, as alter­ed by Stat. 4 Ann. c. 8. and as the same is now to be taken.

‘I A. B. do truly and sincerely ac­knowledge, profess, testify, and de­clare in my Conscience, before God and the World, That our Sovereign Lord King George the Second, is law­ful and rightful King of this Realm, and all other His Majesty's Dominions and Countries thereunto belonging. And I do solemnly and sincerely declare, That I do believe in my Conscience, that the Person pretended to be Prince of Wales, during the Life of the late King James, and since his Decease, pretending to be, and taking upon him­self the Stile and Title of King of Eng­land, by the Name of James the Third, or of Scotland, by the Name of James the Eighth, or the Stile and Title of King of Great Britain, hath not any [Page 178]Right or Title whatsoever to the Crown of this Realm, or any other the Do­minions thereto belonging: And I do renounce, refuse, and abjure any Alle­giance or Obedience to him. And I do swear, That I will bear Faith and true Allegiance to His Majesty King George the Second, and Him will de­send to the utmost of my Power, a­gainst all Traiterous Conspiracies and Attempts whatsoever, which shall be made against his Person, Crown or Dig­nity. And I will do my utmost En­deavour to disclose and make known to His Majesty and his Successors, all Treasons and Traiterous Conspiracies, which I shall know to be against Him, or any of Them. And I do faithfully Promise, to the utmost of my Power, to support, maintain and defend the Succession of the Crown, against him the said James, and all other Persons whatsoever: As the same Succession, by an Act, entitled, An Act for the fur­ther Limitation of the Crown, and better Securing the Rights and Liber­ties of the Subject, is, and stands limi­ted to the Princess Sophia, Electress and Dutchess Dowager of Hanover, and the Heirs of Her Body, being Protestants. And all these Things I do plainly and sincerely acknowledge [Page 179]and swear, according to these express Words by me spoken; and according to the plain and common Sense and Understanding of the same Words, with­out any Equivocation, mental Evasion or secret Reservation whatsoever. And I do make this Recognition, Acknow­ledgement, Abjuration, Renunciation and Promise, heartily, willingly and truly, and upon the true Faith of a Christian.’

So Help me God.

CHAP. XI. Who may be Elected to Parliament.

BY Stat. 5.4 Inst. 48. Sir Simon d'Ewes Jour. 39, 40. Eliz. c. 1. no Knight, Citi­zen, or Burgess can sit in Parliament, before he hath taken the Oath of Allegi­ance and Supremacy; but Note, other Oaths are now appointed: Vide ante.

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, 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.St. 33 H. 8. c. 1. in Ireland.

Si home n'esteaut Inhabitant, Meor so. 551. n. 741 ne free de un Borough, il poit Eslier, s'il voit se­rver a 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. Col. 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, Citizen,4 Inst. 49. or Burgess of the Parliament.

A Person Outlawed in a Personal Cause may be a Burgess.Towns. Col. 63.64. Vide John Smiths Ca. Si Simon d'Ewes Jour. 48. Col. 2.480. Col. 1 Vide Sir Simon d'Ewes Jour. 481. Col. 2. & 482. Col. 1. See Bohun's Collection, p. 278. 279.

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, yet the Priviledge of the House being urged, that prevaileth over the Law.

A Man Attainted,Ibid. 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, which 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 Jour. 244. Col. 2. 4 Inst. 47.

One under the Age of one and twenty years is not eligible. Neither can any Lord of Parliament sit there till he be full one 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 Miscell. Parl. 175. Ibid. per Sir Edward Coke. Note also the St. 4 An. c. 8. for settling the Succession, &c. excludes Aliens.

Resolved upon the Question, that the Election of Mr. Walter Steward, being no natural born Subject,4 Inst. 47. is void, and a Warrant to go for a new Writ.

None of the Judges of the King's Bench, or Common Pleas, or Barons of [Page 183]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 Judician Places in other Courts Ecclesiastical or Civil,Ibid. being no Lords of Parliament, are eligible.

None of the Clergy, tho' he be of the lowest Order, is eligible to be Knight,Moor so. 783. n. 1083. 4 Inst. 47. 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. 4 Inst. 48.

A Man Attainted of Treason or Felo­ny, &c. is not eligible. For he ought to be magis idoneus, discretus, & suffi­ciens.

Mayors and Bailiffs 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, or have Judicial Jurisdiction,Crompt. 16. or is Sick, &c. that these are Causes suf­ficient to choose others.

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

By special Order of the House of Com­mons,Ibid. the Attorney General is not eli­gible [Page 184]to be a Member of the House of Commons. Vide infra.

At the Parliament began in October 28.Mor. rep. 551. Sir Simon d'Ewes Jour. 441, 442. Moor 551. Eliz. and continued 'till the 29th. Tho. Egerton, Solicitor General, was by Writ commanded to attend in Parliament upon the Lords in the upper House, and after he had attended there three Days, he was chosen a Burgess for Reading in Com. Berks and upon the Return of him, the Commons went to the House of Lords, and demanded that he might be dismissed from further attendance there, and come into their House. But upon Consultation and Defence made by him­self, the Lords retain'd him, and the main Reason was, because they were first po­sessed of him.

And in 5.Mor. ut Sup. Simon d'Ewes Jour. 121, Col. 1, 2. Eliz. Ouslow being a Mem­ber of the lower House, upon a Proroga­tion of Parliament, was made Solicitor General, and when the Parliament met again, he was commanded by Writ, to attend the Lords House, tho' chosen Spea­ker of the House of Commons, but the Commons demanded him, and it was granted, because he was a Member of the lower House first; so that this was the difference between his,Journ. Dom. Co. 21. Jac. 1.10. Martij. Vid. Petyts Miscell. Parl. 174. and the case above.

Sir Dudley Diggs said, that in that Parliament, when Bacon Attorney was in Question, whither he ought to sit in [Page 185]the House of Commons or no, twas over­ruled he ought not; but yet in favour of him he was suffered to sit there, and an Ex­press order was made that never any other Attorney after should.

So careful were our Ancestors not to admit any to be a Representative of the People who was a Dependant on, or could be influenc'd by the Court, &c.

18 Eliz. 1585. Concluded by the House, Sir Simon d'Ewes, Jour. 249. Col. 1. 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. Popham Solicitor Ge­neral,Id. 281. Col. 1. upon demand made by the House, was restored to them by the Lords, be­ause he was a Member of the House of Commons, and they possessed of him be­fore he was Solicitor, or had any Place of Attendance in the Upper House.

No Sheriff shall be chosen for a Knight of Parliament, nor for a Burgess; why?Book of Entr. 41.1. Crompton's Jur. 3. 4 Inst. 48. because nominated by the Crown.

1. Car. 1. The Sheriff of the County of Buckingham was chosen Knight for the County of Norfolk, and return'd into [Page 186]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.Scobel 96. Sess. 2. Sir John Peyton, Kt. returned the last Session, and since cho­sen Sheriff; Resolv'd 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, Touns. Col. 185. Vid. de hoc. Sir Simon d'Ewes Jour. 38. Col. 1, 2. & 624. Col. 2. Kt. 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 Bailiffs of Southwark returned themselves Burgesses, and were received. See also Bohun's Collection, 81.143.153.188.243.253.254.

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

Where one Person is chosen and re­turned to serve in several Places,Scobel 18. Vide Sir S. d'Ewe's 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.

No Tallage or Aid shall be taken or levied by Us, or our Heirs, St. So. E. I. c. 1. Of the Elected vide ante. 14.21. in our Realm without the Goodwill and As­sent of Archbishops, Bishops, Earls, Ba­rons, Knights, Burgesses, and other Freemen of the Land.’

‘The King wills and commands,Stat. 5. R. 2. c. 4. Persons and Com­monalty summon­ed to at­tend, &c. as of old. and it is assented in Parliament by the Pre­lates, Lords and Commons, That all Persons and Commonalties, which shall have the Summons of Parliament, shall come to the Parliaments in the Manner as they are bound to do, and have been accustomed within the Realm of Eng­land, of old Times.

‘And if any Person of the same Realm,Knights, Citizens, and Bur­gesses ab­senting to be a mer­ced and punish'd as in Old Times. which shall have the said Summons (be Knight of the Shire, Citizen of City, Burgess of Borough, or other Person, Commonalty) do absent himself, and come not at the said Summons (except [Page 188]he may reasonably,England. and honestly excuse him to our Lord the King) he shall be amerced, and otherwise punished as in old Times hath been used, &c.

‘That Knights of Shires, which shall be chosen in every Shire,St. 1. H. 5. c. 1. Knights of Shires to be elected of such on­ly who re­side within the Countries at the Dat. of the Writ. be not cho­sen, unless they be resident within the same Shire, the Day of the Date of the Writ of Summons.’

‘And that the Citizens and Burgesses of the Cities and Boroughs be chosen Men,Citizens and Bur­gesses to reside in, and be free of the Cities and Boroughs. Citizens and Burgesses, resient, dwelling, and free in the same Cities and Boroughs, and no other in any wise.’

‘That such as have the greatest Num­ber of them that may expend 40 s. by the Year,Knights of Shires shall be such as have the majority of those that can expend 40 sa Year, or more, and be resident. and above, shall be returned (Knight of the Shire) &c. and that they which shall be chosen shall be dwelling, and resient within the same Counties.’

‘Ordained,St. 23. H. 6. c. 15. Citizens and Bur­gesses only to be elect­ed by Ci­tizens and Burgesses, and the Sheriff to direct his Precept according­ly. &c. That every Sheriff af­ter the Delivery of any Writ (of Ele­ction) to him, shall make and deliver without Fraud, a sufficient Precept un­der his Seal to every Mayor and Bai­liff, or to Bailiffs or Bailiff where no [Page 189]Mayor is,England. of the Cities and Bo­roughs within his County, reciting the said Writ, commanding them by his Precept, if it be a City, to choose, &c. Citizens; and in the same Manner if it be a Borough, to choose Burgesses.

‘And every Sheriff at every Time that he doth contrary to this,Knights, Citizens, or Burges­ses elect­ed, & not duly re­turn'd (the Sheriff acting contrary to have Action of Debt a­gainst him, his Execu­tors, or Admini­strators, for 100 l. with Costs, wherein no Wager of Law, &c. or any other Statute for the Election of Knights, Citizens and Burgesses, before made, shall forfeit and pay to every Person chosen Knight, Citizen or Bur­gess in his County, and not duly re­turned, 100 l. whereof every Knight, Citizen or Burgess so griev'd, severally shall have his Action of Debt against the said Sheriff, or his Executors or Administrators, to demand and have the said 100 l. with his Costs spent. And that the Defendant shall not wage his Law, or have any Essoign.’

‘And if any Mayor and Bailiffs,The like Action gi­ven against Mayor or Bailiffs, their Exe­cutors or Adminis­trators for 40 l. Debt and Costs, for return­ing others than such as are cho­sen Citi­zens and Burgesses by Citi­zens and Burgesses. And no Wager of Law, &c. Such Knt. Citizen, and Bur­gess to commence the Action within 3 Months after the Com­mencement of such Parliament, and proceed without Fraud or Bailiffs or Bailiff, where no Mayor is, shall return others than those which be chosen, &c. he shall forfeit and pay to every Person hereafter chosen Citizen or Burgess, and not returned, 40 l. whereof every of the Citizens and Bur­gesses so grieved, severally shall have his Action of Debt, against every of [Page 190]the said Mayor and Bailiffs (or Bailiffs or Bailiff where no Mayor is) or against their Executors,England. Administrators, to de­mand and have of every of them, 40 l. with his Costs in this Case expended.’

‘And that in such Action of Debt, no Defendant shall wage his Law, nor have any Essoign.’

‘Provided that every Knight, Citizen and Burgess in due Form chosen, and not returned as asoresaid, shall begin his said Action within three Months after the Parliament commenced, and to pro­ceed in the same Suit effectually, with­out Fraud.’

‘And if any Knight,If any Knt. Citi­zen, or Burgess return'd, be put out, &c. 100 l. forfeited to the King by any Per­son put in his place, and serv­ing as such And a like Action a­gainst him, &c. for 100 l. Debt and Costs to the par­tygrieved, to be com­menced within 3 Mo. after the Com­mence­ment of Parliam. No Wa­gers of Law, &c. And like Process as in Trespass at common Law. Citizen or Bur­gess hereafter returned by the Sheriff, in Manner asoresaid, after such Return be by any Person put out, and another put in his Place, that such Person so put in the Place of him which is out, if he take upon him to be Knight, Ci­tizen or Burgess at any Parliament, shall forfeit to the King 100 l. and 100 l. to the Knight, Citizen or Bur­gess so returned by the Sheriff, and af­ter put out. And that the Knight, Citizen or Burgess so put out, shall have an Action of Debt of the same 100 l. against such Person put in his [Page 191]Place, his Executors or Administrators,England. provided he begin his Suit within three Months after the Parliament commen­ced, &c. And that no Defendant in such Action shall wage his Law, nor be essoigned. And that such Process shall be in the Actions aforesaid, as in a Writ of Trespass against the Peace, at Common Law.’

‘That the Knights of the Shires for the Parliament, shall be notable Knights of the same Counties, Knts. of the Shires be Knts. of the Counties they shall be elected for, or Esquires, or Gentle­men able to be Knts. and not Yeomen, &c. for the which they shall be chosen, or otherwise such notable Esquires or Gentlemen born of the same Counties as shall be able to be Knights. And no Man to be such Knight, which standeth in the Degree of a Yeoman, or under.’

‘That no Knights (of Shires) Citi­zens,St. 6 H. 8 c. 16. Knts. Citi­zens, &c. not to de­part or be absent from Par­liament, without leave of the House to be en­tred in the Journal. Burgesses and Barons (of Cinque-Ports) nor any of them that be elected to Parliament, do depart from the said Parliament, nor absent himself from the same, till the said Parliament be fully finished, ended, or prorogued, except he or they so departing have Licence of the Speaker and Commons in the said [Page 192]Parliament assembled,England. and the same Licence entred of Record in the Book of the Clerk of the Parliament, ap­pointed for the Commons House, &c.

‘That the two Knights to be elected to Parliament for the Shire of Mon­mouth (heretofore Part of Wales) and the one Burgess for the Borough of Monmouth, St. 27 H. 8. c. 26. The two Knts. and one Bur­gess for the Bo­rough and County of Monmorth to have like Privilege, &c. as other Knights and Burgesses. shall have like Dignity, Pre-eminence and Privilege, as other Knights and Burgesses of Parliament.’

‘And that the Knight which shall be elected for the Shires of Brecknock, And Knt. for each County, and Bur­gess for each Shire-Town in Wales, to have like Privileges &c. Radnor, Montgomery and Denbigh, and for every other Shire within the Country or Dominion of Wales, and for every other Borough being a Shire-Town within the same, shall have like Dignity, Pre-eminence and Privilege, as other Knights of Parliament.’

‘That the two Knights to be elected for the County Palatine of Chester, The two Knts. for the Coun­ty, and two Bur­gesses for the City of Chester, to have like Pri­vileges, &c. and two Citizens as Burgesses for the City of Chester, shall be Knights and Burgesses of the Court of Parliament, and have like Voice and Authority, to Intents and Purposes, as any other the Knights and Burgesses of the said Court have, use, and enjoy, &c. Vide ante 176.’

‘That the two Knights to be elected for the County,England. and the two Citizens as Burgesses for the City of Durham (the Election of Knights of the Shire to be by a Majority of Freeholders; Stat. 25 C. ch. 29. ante. The two Knights to be ele­cted for the Coun­ty and two Burgesses for the Ci­ty of Dur­ham, by a Majority of Free­holders, and a like Majority of Mayor, Aldermen and Free­men pre­sent, to have like Privileges &c. and the Burgesses by a Majority of the Mayor, Aldermen, and Freemen pre­sent at such Election) shall be Knights and Burgesses of the High Court of Parliament, to all Intents and Purposes, and have and use the like Voice, Au­thority and Places therein, to all In­tents and Purposes, as any other the Knights and Burgesses of the said Court, and shall, have, use and enjoy all such and the like Liberties, Advantages, Dignities and Privileges concerning the said Court, to all Intents, Constructions and Purposes as any other the Knights and Burgesses of the said High Court have, had, used, &c. Vide ante 176.’

‘That every Person which hereafter shall be elected a Knight,Stat. 5. Eliz. c. 1. Knights, Citizens, &c. be­fore their sitting in Parlia­ment, to take the Oath of Suprema­cy before the Lord Steward, or his De­puties, and for the contrary to lose their Member­ships, and incur such Penalties as if they had sat without Election, Return, &c. Citizen or Burgess, or Baron for any of the Five Ports, for any Parliament or Parliaments hereafter to be holden, shall before he enter the Parliament House, or have a­ny Voice there, openly receive and pro­nounce the Oath (* expressed in the [Page 194]Stat. 1 Eliz. ch. 1.England. commonly called the Oath of Supremacy) before the Lord Steward (of the Queen's Hou­shold) or his Deputy or Deputies for that Time to be appointed, and that he which shall enter into the Parlia­ment House without taking the said Oath, shall be deemed no Knight, Ci­tizen, Burgess nor Baron for that Par­liament, nor shall have any Voice, but shall be to all Intents, Constructions and Purposes, as if he had never been returned nor elected Knight, Citizen, Burgess or Baron for that Parliament, and shall suffer such Pains and Penal­ties, as if he had presumed to sit in the same without Election, Return or Au­thority.’

‘That all and every the Knights, Ci­tizens,Stat. 7. Jac 1. c. 6. Knights, Citizens, &c. at a­ny Parlia­ment, or Sessions, to take the Oath of Allegi­ance be­fore the Lord Ste­ward, &c. ere they be per­mitted to sit. Burgesses and Barons of the Five Ports of the Commons House of Parliament, at any Parliament or Ses­sion of Parliament, before he or they shall be permitted to enter into the said House (shall make, take and re­ceive the Oath of Obedience mentioned in the Statute of 3 Jac. 1. ch. 4. com­monly called the Oath of Allegiance*) before the Lord Steward (of the King's Houshold) his Deputy or Deputies.’

‘That none which shall be a Member of the House of Commons,England. shall vote in the said House,St. 30 C. 2. c. 1. Members of the House of Commons shall not vote or sit there du­ring any Debate after their Speaker chosen, until they have ta­ken the Oaths of Allegiance and Supre­macy, and subscribed the Test, between Hours of 9 and 4, in a full House. or sit there during any Debate in the said House, after their Speaker is chosen, until such Member shall first take the several Oaths of Allegiance and Supremacy, and make, subscribe, and audibly re­peat the Declaration (in this Act con­tained, commonly called the Test) which said Oaths and Declaration shall be in this and every succeeding Parlia­ment solemnly and publickly made and subscribed betwixt the Hours of Nine in the Morning and Four in the After­noon, by every such Member at the Table, in the Middle of the said House, and whilst a full House of House is there duly sitting, with their Speaker in his Chair, and that the same be done in the House, in such-like Order or Me­thod as the House is called over by.’

‘If any Member of the House of Com­mons shall presume to do any thing con­trary to this Act,Members acting contrary, shall be adjudged Popish Recusants convict, and suffer as such, and be disabled to hold a­ny Office or Place of Profit or Trust in England or is Do­minions, to sit or vote in Parlia-, ment, bring any Action or Informa­tion at Law, or Suit in E­quity, be Guardian of any Child, Executor or Admi­nistrator of any Person, or capable of any Lega­cy or Deed of G [...], and forfeit 500 l for every Of­fence to any that will sue by Action of Debt, &c. where no Es­soign, &c. every Member so of­fending shall from thenceforth be deemed and adjudged a Popish Recusant Convict, to all Intents and Purposes, and shall forfeit and suffer as a Popish Recusant Convict, and shall be disabled to hold [Page 196]or execute any Office or Place of Pro­fit or Trust,England. Civil or Military, in any of His Majesty's Realms of England or Ireland, Dominion of Wales, or Town of Berwick upon Tweed, or in any of His Majesty's Realms, Islands, or Foreign Plantations to the said Realms belonging, and shall be disabled to sit or vote in Parliament, or to sue or use any Action, Bill, Plaint, or Informa­tion in course of Law, or to prosecute any Suit in any Court of Equity, or to be Guardian of any Child, or Executor or Administrator of any Person, or ca­pable of any Legacy or Deed of Gift, and shall forfeit for every wilful Offence against this Act the Sum of 500 l. to be recovered or received by him or them that will sue for the same, and to be prosecuted by any Action of Debt, Suit, Bill, Plaint, or Information in a­ny of His Majesty's Courts at West­minster, where no Essoign, Protection, or Wager of Law shall lie.’

‘It shall be lawful to and for the House of Commons, as often as they shall see Occasion,Members obliged to take the said Oaths and sub­scribe the Test in the House as often as the House shall think fit, and Mem­bers acting contrary, and pre­suming to sit, inca­pacitated during that Par­liament. to order or cause all or any of the Members of Parliament o­penly in their House to take the said [Page 197]Oaths,England. and to make and subscribe the said Declaration, at such Times, and in such Manner, as they shall appoint. And if any Member of the House of Commons shall, contrary to such Order made by their House, wilfully presume to sit therein, without taking the said Oaths, and making and subscribing the said Declaration, every such Member so presuming to sit, shall be adjudged, and is declared to be uncapable and disabled in Law, to all Intents and Purposes, to sit in the said House, or give any Voice therein during that Parliament.’

‘And in Case any Member of the House,Such Members Election declared void, and the Spea­ker by Or­der of the House to issue his Warrant for a new Election. shall by virtue of this Act be disabled to sit or vote in the House, then, without any further Conviction, or other Proceedings against such Mem­ber, the Place for which he was elect­ed, is hereby declared void, and a new Writ shall issue out of Chancery, by Warrant from the Speaker, and by Or­der of the said House, for the Election of a new Member, in the Place of such Member so disabled, to all Intents and Purposes, as if such Member or Mem­bers were naturally dead, &c.

During the taking the Oaths and subscribing the Test, all other Proceed­ings in Parliament to cease, and the Oath, Declaration and Subscription, [Page 198]with a Schedule of the Names of the Persons taking and subscribing them, England. to be entred and filed in Parchment Rolls provided by the Clerk of the House, and each Member to pay only 12 d. for every such Entry.

‘That the said Act 30 Car. 2.Stat. 1 W. & M. c. 1. Members of the House of Commons qualified to sit and vote by taking the Oaths of Allegiance and Supre­macy ap­pionted by this Act (instead of the old ones, now repealed) and by subscribing the Test according to the Limitations, &c. of the preceding Statute 30 Car. 2 and all other Acts of Parliament, as to so much of the said Act or Acts only as con­cerns the taking the Oaths of Supre­macy and Allegiance, or either of them in the said Acts respectively mentioned) by any Member or Members of the House, with relation to their sitting and voting in Parliament, are hereby repealed to all Intents and Purposes, a­ny Thing in the said recited Act or Acts to the contrary. And’

‘In all future Parliaments the Oaths (in this Act mentioned) and the De­claration in the Act 30 Car. 2. menti­oned, shall be taken, made, subscribed and repeated by every Member of the House, within the Time, and in the same Manner and Form, and under the Penalties and Disabilities as the said Oaths of Allegiance and Supremacy, and the said Declaration by the said Act of Car. 2. are limited, ordained and ap­pointed [Page 199](and not at any other Time,England. or in any other Manner) to enable them to sit and vote in Parliament, any Thing in the said Act or Acts to the contrary.’

That Elections of Members of Parlia­ment ought to be Free. Stat. 1 W. & M. c. 2. The claim of Right.

That the Freedom of Speech and De­bates on Proceedings in Parliament ought not to be impeached or questi­oned in any Court or Place out of Parliament. Enacted accordingly.’

‘That no Member of the House of Commons shall at any Time be con­cerned directly or indirectly,Sta. 5 & 6 W. & M. ch. 7. Members of the House of Commons to be no ways con­cerned in Duties or Aids to be granted by Parli­ament, ex­cept Com­missioners of the Treasury, Customs, Excise, and Land Tax. or any o­ther in Trust for him, in the farming, collecting or managing any of the Du­ties, or other Aids that hereafter shall be granted by Act of Parliament (ex­cept the Commissioners of the Treasu­ry, and the Officers, and Commissioners for managing the Customs and Excise, not exceeding the present Number in each Office, and Commissioners of the Land Tax. (Quere the Novelty of this Exception.)

‘That any Member or Members of the House of Commons,Stat. 5 & 6 W. and M. c. 20. Members of the House of Commons may be Members of the Bank. may be a Member or Members of the Corpora­tion [Page 200](of the Governor and Company of the Bank of England.England.)’

That o Collector, Supervisor, Gauger or other Officer, or Person whatsoever concerned or imployed in the charging, levying or managing the Duties of Ex­cise, or any Branch or Part thereof, shall by Word,Officers of the Excise not to in­termedle, &c. Message or Writing, or in any other Manner endeavour to persuade any Elector to give, or dissuade any Elector from giving his Vote for the Choice of any Person to be a Knight of the Shire, Citizen, Burgess or Baron of any County, City, Borough or Cinque-Port, and every Officer, or other Per­son offending therein, shall forfeit the Sum of 100 l. one Moiety thereof to the Informer, the other Moiety to the Poor of the Parish where such Offence shall be committed, to be recovered by any Person that shall sue for the same, by Action of Debt, Bill, Plaint or Infor­mation in any of their Majesties Courts of Record at Westminster, in which no Essoign, Protection, Privilege, or more than one Imparlance shall be allowed, and every Person convict on Suit of the said Offence, shall be for ever incapa­citated to bear any Office, or Place of Trust under the Crown.

‘That no Persons hereafter to be ele­cted to serve in Parliament for any County, City, Town,England. Borough,St. 7. W. 3. c. 4. No Per­sons to be elected after the Teste of the Writ shall by them­selves, or any other at their charge, before the Election, give, pro­mise, or oblige them­selves to give any thing to any Per­son, ha­ving a Vote in particular or to any County or Place in general in order to be ele­cted. Port or Place within the Kingdom of Eng­land, Dominion of Wales, or Town of Berwick upon Tweed, after the Teste of the Writ of Summons, or after the Teste, or issuing out, or ordering of the Writ or Writs of Election upon the calling, or summoning of any Parlia­ment, or after any such Place becomes vacant, shall, or do hereafter by him­self, or themselves, or by any other Ways or Means on his or their Behalf, or at his or their Charge, before his or their Election in England, Wales or Berwick, directly or indirectly, give, present or allow to any Person, having Voice or Vote in such Election, any Money, Meat, Drink, Entertainment or Provision, or make any Present, Gift, Reward or Entertainment, or shall make any Promise, Agreement, Obligation or Engagement to give or allow any Money, Meat, Drink, Provision, Pre­sent, Reward or Entertainment, to or for any such Person in Particular, or to any such County, City, Town, Bo­rough, Port or Place in general, or to or for the Use, Advantage, Benefit, Imployment, Profit or Preferment of any such Person or Place, in Order to [Page 202]be elected,England. or for being elected to serve in Parliament, for such County, City, Town, Borough, Port or Place.’

‘And that every Person so giving, presenting or allowing,Such Per­sons so gi­ving, pro­mising, &c. disa­bled to serve, as never e­lected or returned. making, pro­mising or engaging, doing, acting or proceeding, shall be, and are hereby disabled and incapacitated upon such Election to serve in Parliament for such County, City, Town, Borough, Port or Place, and shall be deemed and ta­ken no Member in Parliament, and shall not act, sit or have any Vote or Place in Parliament, but shall be, and are to all Intents, Constructions and Purpo­ses, as if they had been never returned or elected, &c.

‘That all false Returns willfully made of any Knight of the Shire,Stat. 7 and S. W. 3. c. 7. & con­tinued by St. 12. & 13. W. 3. c. 5. False Re­turns of Knights, Citizens, &c. illegal and prohibited. Citizen, Burgess, Baron of the Cinque-Ports, or other Member to serve in Parliament are against Law, and are hereby prohi­bited.’

‘The Party grieved (by any false re­turn, An Acti­on given to any du­ly elected against the Offi­cer and Procurer of a false Return, or Return contrary to the last determi­nation of the Kight of Electi­on in any Court at Westmin­ster, with double Damages, and full Costs. and contrary to the last Determi­nation of the Right of Election of the House of Commons, which is also ad­judg'd a false Return) (to wit) every Person that shall be duly Elected to Parliament for any County, City, Bo­rough, [Page 203]Cinque-Port, or Place,England. by such false Return, may Sue the Officers and Persons making or procuring the same, and every or any of them, at his Electi­on, in any of his Majesty's Courts of Record at Westminster, and shall reco­ver double the Damages he shall sustain by reason thereof, together with his full Costs of Suit.’

‘And if any Officer shall willfully,Like Act­ion given the elect­ed against Officer, &c. falsly, &c. mak­ing double Returns, and the Prosecu­ters of such Re­turns. Contracts Bonds, &c. given to procure the Re­turn of a­ny Mem­bers ad­judged void, and such (Members) as make or give them to procure any false or double Return, forfeit 300 l. One third to the King, another to the Poor of the County, City, &c. and a third to the Informer, with his Costs, to be recovered by Action of Debt, &c. wherein no Essoign &c. and but one Imparlance. falsly, and maliciously Return more Per­sons than are required to be chosen by the Writ or Precept on which any Choice is made, the like Remedy against him or them, and the Party or Parties that willingly procure the same, or a­ny of them, by the Party grieved at his Election.’

‘All Contracts, Promises, Bonds, and Securities whatsoever hereafter made or given to procure any Return of any Member to Parliament, or any thing re­lating thereunto, shall be adjudged void; and whoever makes or gives such Con­tract, Security, Promise, or Bond, or any Gift or Reward to procure such false or double Return, shall forseit the Sum of 300 l. one third part to his Majesty, another third part to the Poor of the County, City, Borough or Place [Page 204]concerned,England. and one third part to the Informer, with his Costs, to be reco­vered in any Court of Record at West­minster, by Action of Debt, Bill, Plaint, or Information, wherein no Essoign, Protection, or Wager of Law shall be allowed, nor more than one Imparlance.’

The Clerk of the Crown to keep a Book of Entry of every single and double Return,Clerk of the Crown to keep Books of Entry of Returns, &c. and of every Alteration and A­mendment in every such Return, where­to all Persons are to have access, and take Copies of so much as desir'd at a reason­able Fee—The Parties prosecuting such Suit (Candidates) may give such Book, or a true Copy thereof in Evidence, and have like Advantage as by producing the Record itself: And if the Clerk of the Crown makes not such Entry within six Days after any Return, or alters any Re­turn without Order of the House of Commons, or gives a Certificate of any Person not returned, or wilfully neglects or omits his Duty herein, he shall forfeit 500 l. for each Offence to the parth griev­ed (Candidate) to be recovered as afore­said, and lose his Office, and be for ever incapable of holding it.

‘Every Information or Action upon this Statute,England. shall be brought within two Years after the cause of Action shall arise,Informa­tions or Actions on this Statute to be brought within 2 Years. and not after.’

‘That upon every Election to be made of any Knight or Knights of the Shire (in case a Poll shall be requir'd) the Sheriff or his Under-Sheriff shall ap­point for each Candidate such one Per­son as shall be nominated to him by each Candidate,Candi­dates for Knights of the Shire may nominate Persons to be Inspec­tors of the Poll, and may re­quire each Freehold­er to be sworn be­fore ad­mitted to Poll. to be Inspectors of eve­ry Clerk who shall be appointed for taking the Poll; and every Freeholder, before he is admitted to Poll at the same Election, shall, if required by the Candidates or any of them, first take the Oath (in this Act contained) Vide ante.

‘And if any Person do unlawfully and corruptly procure or suborn any Free­holder or Person to take the said Oath in order to be Polled,Any Per­son pro­curing a Freehold­er or other to take the Oath for the Poll, whereby he com­mits Per­jury, and convicted of such Suborna­tion, for every Of­fence (for­feits 40 l. and be incapacitated as a Witness till such Judgment re­versed; and for want of 40 l. imprisoned half a Year and stand in the Pillory an Hour, per Stat. 5 Eliz. ch. 9. whereby he shall commit wilful and corrupt Perjury, and shall be thereof convicted, he for every such Offence shall incur the like Pains and Penalties as are in and by one Act made in the 5th Elizabeth, &c. enact­ed against all such who shall, &c. Su­boru or Procure any Person to commit [Page 206]any unlawful and corrupt Perjury con­trary to the said Act.England.

‘The said Sheriff,Without the Can­didates consent, the Coun­ty Court not to be adjourned from the place of Election, nor the Poll dis­continued. or in his Absence his Under-Sheriff, or such as he shall depute, shall not adjourn the County-Court from the Place of Election to any other Town or Place within the same County without consent of the Candi­dates, but shall duly and orderly pro­ceed to take the Poll from Day to Day, and Time to Time, without any fur­ther or other Adjournment, without the Consent of the Candidates for such Ad­journment.’

‘Every Sheriff,Any Per­son may demand a Copy of any Poll, which the Sheriffs, Mayors, &c. are required to deliver, paying reasona­bly for writing it. To each Party grieved, Mayors, Sheriffs, &c. for every wil­ful offence forfeit 500 l. to be reco­ver'd by such Par­ty, his Ex­ecutors, or Admi­nistrators, with full Costs, by Action of Debt, &c. wherein no Essoign, &c. Under-Sheriff, May­or, Bailiff, and other Officer, to whom the Execution of any Writ or Precept shall belong for the electing Members to Parliament, shall forthwith deliver to such Person or Persons as shall desire the same, a Copy of the Poll taken at such Election, paying only a reasonable Charge for writing: And every She­riff, Under-Sheriff, Mayor, Bailiff, and other Officer, to whom the Exe­cution of any Writ or Precept for elect­ing Members to Parliament doth belong, for every wilful Offence contrary to this [Page 207]Act shall forfeit to every Party so ag­grieved the Sum of 500 l. to be reco­vered by him or them,England. his or their Ex­ecutors or Administrators, together with full Costs of Suit, and for which he or they may Sue by Action of Debt, Bill, Plaint, or Information in any Court at Westminster, wherein no Essoign, Pro­tection, Wager of Law, Privilege, or Imparlance, shall be allowed.’

‘No Person shall be capable of being elected a Member to Parliament, who is not of the Age of 21 Years,None shall be elected under the age of 21 Years. The choice of any elect­ed under that Age declared void; and such Mi­nor sitting &c. in Parlia­ment shall incur like Penalties as if sitting, &c. unchosen or re­turned. and eve­ry Election or Return of any Person un­der that Age is declared Null and Void. And if any such Minor chosen shall pre­sume to sit or vote in Parliament, he shall incur such Penalties and Forfeitures as if he had presumed to Sit and Vote in Parliament without being chosen or returned.’

‘The Sheriff of the County of South­ampton, Candi­dates for the Coun­ty of Southamp­ton, may demand of the She­riff, after the end of the Poll at Win­chester, an Adjourn­mens to Newport in the Isle of W [...]ight. or his Deputy, at the request of one or more of the Candidates for Election of a Knight or Knights for that County, shall adjourn the Poll from Winchester, after every Freehold­er [Page 208]then and there present is Polled,England. to Newport in the Isle of Wight, for the Ease of the Inhabitants of the said Island, any thing in this Act contained to the contrary.’

‘No Person which shall refuse to take the Oaths (of Allegiance and Suprema­cy, St. 7 & 8 W. 3. c. 27. Candi­dates may require the She­riff or Chief Of­ficer on the Poll, at any E­lection, to administer the Oaths of Allegi­ance and Suprema­cy to E­lectors, (and if Quakers, the Decla­ration of Fidelity) and on refusal, not to admit them to Vote.) directed by an Act made in the First Year of His present Majesty, and the late Queen Mary, or being Qua­kers, shall refuse to subscribe the De­claration of Fidelity directed by one other Act made in the said First Year of His present Majesty and the late Queen (to be administred on the Poll by the Sheriff or Chief Officer at any Election) at the Request of any one of the Candidates, shall be admitted to give any Vote for the Election of any Knight of the Shire, Citizen, Burgess, or Baron of the Cinque-Ports, to serve in Parliament.’

‘Enacted,St. 11. & 12. W. 3. c. 2. Members of the House of Commons while such by them­selves, Deputies, or Trus­tees, tak­ing or ex­ecuting a­ny Office in the Ex­cise, or Appeals thereof, declared incapable of sitting, &c &c. That if any Member of the House of Commons, during the time of his being a Member of Parlia­ment, by his Deputy, or any other in trust for him or his benefit, take, enjoy, or execute any Office, Place, or Im­ployment [Page 209]touching or concerning the farming, managing, or collecting the Duty of Excise, or determing Appeals concerning the said Duty, or comptrol­ling or Auditing the Accompts of the same, such Person is hereby declared and enacted to be absolutely uncapable of siting, voting, or acting as a Mem­ber of the House of Commons in such Parliament.’

That after the Limitation of the Crown to the Princess Sophia of Hanover,St. 12 and 13 W. 3. c. 2. For the Limitati­on of the Crown to the House of Hanover (by this Act) shall take effect no Person born out of the Kingdoms of England, Scotland, or Ireland, or the Dominions there­unto belonging, (although he be naturaliz'd or made a Denizen; except such as are born of Eng­lish Parents) shall be capable to be a Member of the House of Commons.

‘Enacted,Members of the House of Commons incapaci­tated from being Commissi­oners or Farmers of the Cus­toms, or to hold in their own or others Names, or by others in trust, or execute by Deputies any Office in the Customs. &c. That no Member of the House of Commons shall be capable of be­ing a Commissioner or Farmer of the Cu­stoms, or of holding or enjoying in his own Name, or in the Name of any other Per­son in Trust for him, or for his Use or Be­nefit, [Page 210]or of Executing,. by himself or his Deputy, any Office, Place or Employment touching or concerning the Farming, Col­lecting, or Managing the Customs. Vide ante of Officers of the Excise.

‘If any Member of the House of Commons shall,Members while such, so taking or executing any such Office, declared incapable of sitting, &c. during the time of his being a Member of Parliament, by him­self, or his Deputy, or any other in Trust for him, or for his Benefit, take, enjoy, or execute any Office, Place or Employment, touching or concerning the Farming, Managing, or collecting the Customs, such Person is hereby de­clared and enacted to be absolutely in­capable of Sitting, Voting, or Acting as a Member in such Parliament.’

‘Enacted,St. 1 [...] & 14 W. 3. c. 6. Members of the House of Commons not to vote or sit there dur­ing any Debate, after their Speaker chosen, until they have ta­ken and subscribed the Abju­ration be­tween 9 and 4, in a full House. &c. That none which shall be a Member of the House of Com­mons, shall Vote in the House of Com­mons, or Sit there during any Debate in the said House of Commons, after their Speaker is chosen, until such Mem­ber shall, from time to time take the Oath (mentioned in this Act, common­ly called the Abjuration, and altered by Statute 1 Annae ch. 22. again by Stat. 4 & 5 Annae ch. 8. again by Stat. 6 Annae ch. 7.) And subscribe the same [Page 211]in manner following; (that is to say) the said Oath shall be in this and every other succeeding Parliament, solemnly and publickly made and subscribed be­tween the Hours of Nine in the Morn­ing, and Four in the Afternoon, by e­very such Member of the House of Commons, at the Table, in the middle of the said House, and whilst a full House is there duly Sitting with their Speaker in his Chair.’ And

‘If any Member shall presume to Vote,Members voting, not having so taken, &c. the said Oath, ad­judged Po­pish Re­cusants convict, and forfeit as such, and disab­led to hold any Office or Place of Profit or Trust in England or its Do­minions, to sit or vote in Parliam. bring any Action or Informa­tion at Law; or Suit in E­quity, be Guardian of any Child, Ex­ecutor or Adminis­trator of any Person, or capable of any Legacy or Deed of Gift, and to forfeit 500 l. to any that will sue by Action of Debt, &c. where no Essoign, &c. shall lie. not having taken the said Oath, and subscribed the same as aforesaid, he shall from thence be deemed and adjudged a Popish Recusant convict to all Intents and Purposes, and shall forfeit and suf­fer as a Popish Recusant convict, and shall be disabled to hold or execute any Office or Place of Profit or Trust, Civil or Military, in England, Ireland, Wales, or in any of the Islands, or Plantations belonging, and shall be dis­abled from thenceforth to sit or Vote in Parliament, or to use any Action, Bill, Plaint, or Information in course of Law, or to prosecute any Suit in Equity, or to be Guardian of any Child, or Executor, or Administrator of any Person, or capable of any Legacy or Deed of Gift, and shall forfeit for eve­ry wilful Offence against this Act 500 l. [Page 212]to be recovered and received by him or them that shall Sue by any Action of Debt, Suit, Bill, Plaint or Informati­on, in any Court at Westminster, where­in no Essoign, Protection, or Wager of Law shall lie.’

‘That no Register (for the Registering Memorials of Deeds, Stat. 2. & 3 Annae, c. 4. The Re­gister for the West-Riding of York, or his Depu­ty, incapacitated. Vide post. p. 218. Conveyances and Wills) within the West-Riding in the County of York, or his Deputy for the Time being, be capable of being chosen a Member to Parliament.’

‘That no Person,St. 4 & 5 Annae, c. 8 No Candi­date who shall have in his own Name or in trust for him or his Benefit, any new Officers or Place of Profit hereafter to be cre­ated, or be a Commi­ssioner or Sub-Com­missioner, Secretary or Recei­ver of Pri­zes, Com­missioner of the Ar­mies Ac­counts, Commis­sioner of the Sick and woun­ded, Agent for any Regiment, Commissioner for Wine Licences, Governor or Deputy-Governor of any of the Plantations, Commi­ssioner in any out-Port, or have a Pension from the Crown dur­ing Pleasure, shall be capable of being elected or sitting, &c. as a Member. who shall have in his own Name, or in the Name of any Person or Persons in Trust for him or for his Benefit, any new Office, or Place of Profit whatsoever, under the Crown, which at any time hereafter shall be created or erected, nor any Person who shall be a Commissioner or Sub-Com­missioner of the Prizes, Secretary or Receiver of the Prizes, nor any Comp­troller of the Accompts of the Army, nor any Commissioner of Transports, nor any Commissioner of the Sick and Wounded, nor any Agent to any Regi­ment, nor any Commissioner for Wine [Page 213]Licences, nor any Governor nor Depu­ty-Governor of any of the Plantations, nor any Commissioner of the Navy em­ployed in any of the Out-Ports, nor any Person having any Pension from the Crown during Pleasure, shall be cape­able of being Elected, or of sitting or voting as a Member of the House of Commons.’

‘If any Person being chosen a Mem­ber of the House of Commons shall ac­cept of any Office of Profit from the Crown during such time as he shall con­tinue a Member, his Election shall be,Members chosen ac­cepting a­ny Office of Profit from the Crown, while they continue Members, their Elec­tion void, and a new Writ to issue, but capable of being a­gain Elected. and is hereby declared to be Void, and a new Writ shall issue for a new Electi­on, as if such Person so accepting was naturally Dead. Nevertheless such Per­son shall be capable of being again E­lected, as if his Place had not become Void as aforesaid.’

No greater Number of Commission­ers shall be made for the Execution of any Office than have been employed in [Page 214]the Execution of any such Office from the first Day of the Session.

‘Nothing herein contained shall extend to any Member of the House of Com­mons being an Officer in Her Majesty's Navy or Army,Members being Of­ficers in the Navy or Army, receiving any New Commissi­on in ei­ther, not incapacitated. who shall receive any new or other Commission in the Navy or Army respectively.’

‘If any Person hereby disabled or de­clared to be incapable to Sit or Vote in Parliament,Members hereby in­capacitat­ed, if re­turned, their E­lection void, and presuming to sit and vote for­feit 500 l. to any that will sue by Action of Debt, &c. wherin no Essoin, &c and but one Im­parlance. shall nevertheless be return­ed as a Member to serve for any Coun­ty, City, Town, or Cinque-Port in a­ny such Parliament, such Election and Return are declared to be Void to all Intents and Purposes, and if any Person disabled or declared incapable by this Act to be Elected, shall presume to sit or vote as a Member of the House of Commons in any Parliament, such Per­son so sitting or voting shall forfeit 500 l. to be recovered by such Person as shall Sue by Action of Debt, Bill, Plaint or Information, wherein no Essoign, Pro­tection, or Wager of Law, shall be al­lowed, and only one Imparlance.’

Forty five shall be the Number of the Representatives of Scotland in the House of Commons of the Parlia­ment of Great-Britain.G. Britain. Stat. 5 Annae, c. 8.

Every Member of the House of Com­mons of the Parliament of Great-Britain (until the Parliament of Great-Britain shall otherwise direct) shall take the respective Oaths ap­pointed to be taken instead of the Oaths of Allegiance and Suprema­cy,The Uni­on Act. by an Act of Parliament made in England in the First Year of the Reign of the late King William and Queen Mary (The new Oaths of Al­legiance and Supremacy) And make, subscribe, and audibly repeat the Declaration mentioned in an Act of Parliament made in England in the Thirtieth Year of the Reign of King Charles the Second (The Test) and shall take and subscribe the Oath mentioned in an Act of Parliament made in England in the First Year of Her Majesty's Reign. (The Ab­juration) At such time and in such manner, as the Members of both Houses of Parliament of England are by the said respective Acts directed to take, make, and subscribe the same, [Page 216]upon the Penalties and Disabilities in the said respective Acts contain­ed: And it is declared and agreed, that these Words (This Realm, The Crown of this Realm, and the Queen of this Realm) mentioned in the Oaths and Declaration contained in the aforesaid Acts, which were in­tended to signify the Crown and Realm of England, shall be under­stood of the Crown and Realm of Great-Britain, and that in that Sense the said Oaths and Declaration be taken and subscribed by the Mem­bers of the Parliament of Great Britain.’

‘None shall be capable to be elected (a Representative for any Shire or Bo­rough of Scotland) but such as are twenty one Years of Age complete,None ca­pable to be elected for any Shire or Borough of Scotland under 21 Years, nor unless a Protestant Papists and such as refuse the For­mula ex­cluded. Like In­capacity on Candi­dates, not at this Time ca­pable by the Laws of Scotland Stat. 6. An. c. 7. and Protestant, excluding all Papists, or such who being suspect of Popery, re­fuse to swear and subscribe the Formu­la contained in the third Act made in the 8th and 9th Sessions of King Wil­liam's Parliament (in Scotland) nor shall be capable to be elected to repre­sent a Shire or Burgh in the Parliament of Great Britain (for Scotland) ex­cept such as (were at the Time of pas­sing this Act) capable by the Laws of [Page 217] (Scotland) to be elected as Commissio­ners for Shires or Boroughs to the Par­liament of Scotland.

A like Clause for incapacitating Per­sons to be elected, &c. Members of Parliament, and likewise for incapacitating Members of Parli­ament, with like Restrictions, Ex­ceptions and Penalties (through­out the united Kingdom) as are contained in the Statute 4 & 5 Annae, c. 8. relating to Candidates and Members for the Parliament of England.’

‘And further,Candi­dates dis­abled to be elected or Mem­bers to sit, &c. in the Parlia­ment of England, under like Disabilities, as to any Parliament of Great Britain. That every Person dis­abled to be elected, or to sit or vote in the House of Commons of any Parlia­ment of England, shall be disabled to be elected, or to sit, or vote in the House of Commons of any Parliament of Great Britain.

Except the present Commissioners for disposing the Equivalent by the present or any other Commission.

‘That every Person who shall refuse to take the Oath of Abjuration, St. 6 Ann. c. 23. Candi­dates or others may require the Sheriff, President of the Meeting, &c. on the Poll at any E­lection of Members in Great Britain, or of Com­missioners for choo­sing Bur­gesses in Scotland to admi­nister the Abjura­tion upon Oath (or Affirmation to Quakers) and Electors refusing it, incapable to vote. or be­ing a Quaker, shall refuse to declare [Page 218]the Effect thereof upon his solemn Af­firmation, as directed by an Act of Par­liament made 7 W. 3. to be administred by the Sheriff, President of the Meet­ing, or chief Officer taking the Poll at any Election of Members to serve in the House of Commons for any Place in Creat Britain, or Commissioners for choosing Burgesses for any Place in Scotland, at the Request of any Candi­date or other Person present, shall not be capable of giving any Vote for any Election of any such Member to serve in the House of Commons for any Place in Great Britain, or Commissioner to choose a Burgess for any Place in Scot­land.

‘That no Register for the Registring Memorials of Deeds, St. 6 Ann. c. 35. The Re­gister for the East-Riding of Tor [...]shire, &c. or his Deputy, incapaci­tated. Conveyances, Wills, &c. within the East-Riding of the County of York, or the Town and County of Kingston upon Hull, or his Deputy for the Time being, be capable of being chosen a Member to serve in Parliament. Vide ante 212.’

‘That no Person shall be capable to sit or vote as a Member of the House of Commons,St. 9 Ann. Persons incapacitated to sit or vote in the House of Commons who have not an Es­tate, Free­hold or Copyhold for Life, or greater, in England of 600 l. for a Knight of the Shire, manfully; and 300 l. for a Ci­tizen, Burgess, &c. and if any such elected, &c. the Election, &c. void. for any County, City, &c. within that Part of Great Britain call­ed [Page 219] England, &c. who shall not have an Estate Freehold or Copyhold for his own Life, or for some greater Estate, either in Law or Equity to his own Use, in Lands, Tenements or Heredi­taments, above what will satisfy and clear all Incumbrances within that Part of Great Britain called England, &c. of the annual Value of six hundred Pounds above Reprizes, for every Knight of a Shire; and of three hundred Pounds above Reprizes for every Citizen, Bur­gess, &c. And if any Persons elected or returned to serve in any Parliament, as a Knight of a Shire, or as a Citizen, Burgess, &c. shall not, at the Time of such Election and Return, be seized of, or intituled to such an Estate before re­quired, such Election and Return shall be void.’

‘Nothing in this Act contained shall extend to make the eldest Son or Heir Apparent of any Peer or Lord of Par­liament,Eldest Son or Heir Ap­parent of a Peer or Person qualified to serve as a Knight of a Shire excepted. Universi­ties in England also ex­cepted. or of any Person qualified by this Act to serve as Knight of a Shire, uncapable of being elected and returned, and sitting and voting as a Member of the House of Commons.’

‘Nor extend to either of the Univer­sities in that Part of Great Britain called England, but that they may e­lect and return Members to represent [Page 220]them in Parliament, as heretofore they have done.’

‘No Person shall be qualified to sit in the House of Commons,No Per­son quali­fied by Virtue of a Mort­gage, un­less in Possession of the mortga­ged Pre­misses for seven Years before his Election. by virtue of any Mortgage, whereof the Equity of Redemption is in any other Person, un­less the Mortgagee shall have been in Possession of the mortgaged Premisses for seven Years before the Time of his Election.’

‘Every Person (except as aforesaid) who shall appear as a Candidate,Candi­dates to be sworn to their Estates, if required by any o­ther Can­didate or two E­lectors. or shall by himself, or any others, be proposed to be elected, shall, upon Request (at the Time of such Election, or before the Day to be prefixed in the Writ of Summons for the Meeting of the Parli­ament) by any other Person who shall stand Candidate at such Election, or by any two or more Persons having Right to vote at such Election, take a Corpo­ral Oath in the Form (in this Act con­tained, which see ante.

‘The respective Oaths aforesaid shall be administred by the Sheriff or Under-Sheriff,Before the She­riff or o­ther Offi­cer by whom the Poll is to be taken or Return made, or 2 or more Justices of the Peace. The Ele­ction and Return of Candi­dates re­fusing to take the Oath, void. for any County, or by the May­or, Bailiff or other Officer or Officers for any City, Burrough, &c. to whom it shall appertain to take the Poll, or make the Return at such Election, or [Page 221]by any two or more Justices of the Peace within England, &c. And if any of the said Candidates, &c. shall wilfully refuse to take the Oath, the Election and Return of such Candidate or Person shall be void.’

‘That from and after the Determina­tion of this present Parliament,2 St. 12 Ann. No Con­veyance or Right whereon Infeoff­ment is not taken, and Seisin registred a Year be­fore the Teste of the Writs, shall in­title the Person to be elected in any Shire or Stewartry in Scot­land. The like as to In­offments not taken a Year be­fore the Date of the War­rant for a new Writ during [...] Continu­ance of a Parlia­ment. Any Ele­ctor pre­sent, su [...] ­pecting Persons to have Estates in Trust, may require the Praeses of the Meeting to swear such to their Estates. no Con­veyance or Right whereupon Infeoff­ment is not taken, and Seisin registra­ted one Year before the Teste of the Writs for calling a new Parliament, shall, upon Objection made in this Be­half, intitle the Person so infeost, to be elected at that Election in any Shire or or Stewartry in Scotland; and in case any Election happen during the Contin­uance of a Parliament, no Conveyance or Right whatsoever, whereupon Infe­offment is not taken One Year before the Date of the Warrant for making out a new Writ for such Election, shall, up­on Objection made in that Behalf, in­title the Person so Infeoft, to be elect­ed at that Election; and that it shall be lawful for any of the Electors pre­sent, suspecting any Person or Persons to have his or their Estates in Trust, and for Behoof of another, to require the Praeses of the Meeting to tender the [Page 222]Oath (in this Act contained, intituled, The Form of the Freeholders, &c. Oath to be taken (upon Objection made) by Stat. 12. Annae, and is the same muta­tis mutandis) to any Elector, and the said Praeses is required to administer the same.’

‘In case such Elector (Electee Q.) re­fuse to Swear,On Refu­sal to swear and subscribe the Oath incapable to be ele­cted. Stat. 1 G. 1. c. 13. and also to subscribe the said Oath, such Person or Persons shall not be capable of being Elected at such Election.’

‘That after the 29th of September, 1715, no Person that now is, or here­after shall be a Member of the House of Commons, shall Vote in the House of Commons, or sit there, during any Debate in the said House of Commons,After 29 Sept. 1715 No Mem­ber to vote before ta­king the Oaths. after the Speaker is chosen, until such Peer or Member shall, from Time to Time respectively, take the Abjurati­on Oath (which Oath see) instead of the Oath of Abjuration which before by Law ought to have been taken, in such Manner, and together with such other Oaths, and Declaration against Transubstantiation, as the said former Oath of Abjuration ought to have been taken.’

‘And further, That if any Person that now is, or hereafter shall be a Member of the House of Commons,Penalty in this or any succeeding Parliament,Vid. ante. and after the said 29th of September, presume to vote, not having taken the said Oath, and subscribed the same as aforesaid, e­very such Member so offending shall be disabled to sue or use any Action, Bill, Plaint or Information in any Court of Law, or to prosecute any Suit in any Court of Equity, or to be Guardian of any Child, or Executor or Administra­tor of any Person, or be capable of any Legacy or Deed of Gift, or to be in a­ny Office within this Realm of Great Britain, or to vote at any Election for Members to serve in Parliament, and shall forfeit the Sum of five hundred Pounds, to be recovered by him or them that shall sue for the same, to be prosecuted by Action of Debt, Suit, Bill, Plaint or Information, in any of His Majesty's Courts at Westminster, wherein no Essoign, Protection or Wa­ger of Law shall lie, or any more than one Imparlance,Note. and by Way of sum­mar Complaint before the Court of Ju­sticiary in Scotland.

‘Enacted,St. 1 G. 1. c. 56. Persons having Pensions from the Crown in­capacita­ted. That no Person having any Pension from the Crown for any Term or Number of Years, either in his own [Page 224]Name, or in the Name or Names of a­ny other Person or Persons in Trust for him, or for his Benefit, shall be capable of being elected, or chosen a Member of, or for sitting or voting as a Mem­ber of this present or any future House of Commons which shall be hereafter summoned.’

‘Enacted,Penalty 20 l. per Day. That if any Person who shall have such Pension as aforesaid, at the Time of his being so elected, or at any Time after, during such Time as he shall continue or be a Member of the House of Commons, shall presume to sit or vote in that House, then and in such Case, he shall forfeit twenty Pounds for every Day in which he shall sit or vote in the said House, to such as shall Sue for the same in any Court in Westminster-Hall; with full Costs, by Action of Debt, Bill, Plaint, or In­formation, in which no Essoign, Privi­lege, Protection, or Wager of Law, shall be allowed, and only one Impar­lance.’

‘Enacted,Stat. 3 G. 1. c. 18. No Mem­ber of the Bank dis­abled. St. 3 G. 1. c. 9. Nor of the South-Sea Company. That no Member of the Bank of England shall be disabled from being a Member of Parliament. See Stat. 5.6. W. M. c. 20. ad idem.

‘Enacted, That no Member of the South-Sea Company shall be disabled from being a Member of Parliament.’

‘Enacted, That no Governor, Direct­or, or other Officer of the Corporati­ons for Assurance of Ships,St. 6 G. 1. c. 18. Nor Go­vernor. &c. of Corpora­tions for Assurance of Ships. shall be dis­abled from being a Member of Parlia­ment.’

‘Enacted, That the late Governor,St. 7 G. 1. c. 28. The late Governor and Dire­ctor of the South-Sea Company disabled. Deputy-Governor, Directors, Cashire, and Accomptant of the South-Sea Com­pany, and John Aislaibe, Esq be dis­abled for ever to sit or vote in either House of Parliament.’

I. A. B. do swear, That I truly, and bona fide,The form of the Candidate's Oath to be taken (if required) by Stat. 9. Annae. have such an Estate in Law or Equity, to and for my own Use and Benefit, of or in Lands, Tenements, or Hereditaments (over and above what will satisfy and clear all Incumbrances that may affect the same) of the annual Value of Six hundred Pounds, above Reprizes, as doth qualify me to be elected and returned to serve as a Member for the County of [...] according to the Tenor and true Meaning of the Act of Parliament in that Behalf; and that my said Lands, Te­nements, or Hereditaments, are lying or being within the Pa­rish, Township, or Precinct of [...]

Or, in the several Parishes, Townships, or Precincts of [...] in the County of [...]

Or, in the several Counties of [...]

(as the Case may be)

The like Oath (Mutatis Mutandis) as to the Value of 300 l. per Annum to be taken by Candidates for a City, Borough, &c.

CHAP. XII. Of Returns of Sheriffs, &c. And Amendments of Returns.

COncerning the Punishment of Sheriffs for their Negligence in returning of Writs,5 R. 2. St. 2. c. 4. or for leaving out of their Returns any City or Borough, which ought to send Citizens and Burgesses. See the Stat. hereafter. p. 229.

Every Sheriff, who doth not make true Return of Elections of Knights,St 8 H. 6. c. 7. 23 H. 6 c. 15. Vide Crom [...]ton's Juris. 3. Hakewel 48. 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 offending, shall pay forty Pounds to the King, and forty Pounds to the Party. See the Stat. hereafter p. 236.

Note, This Action to be (by the Party) within three Months after the Parliament commenced, or (after) by any other Man who will.

If the Party do not,Hakewel 49. Vide Crompton's Juris. 3. 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 [Page 227]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,Hakewel 51. and of every Return of the Mayor and Bailiff, or Bailiffs, where no Mayor is, to him made.

The Burgesses of Leskard in Cornwal being Elected,Towns. Col. 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 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,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. Sir Simon d'Ewes, Jour. 490. Col. 2.

35 Eliz. 1592. 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. Sed aliter nunc.

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 [Page 228]in the Statute) to forfeit a 100 l. Vide Post.

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 Privileges, 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 Bailiff shou'd do it, and not the Clerk of the Crown, and that it shou'd be sent down to the Bailiff in the Country, and he to Re­turn John Maynard, Esq the first Burgess.

1. Febr. 1640.Ibid. It being Resolved, That the Election of Mr. Erle for one of the Burgesses of Wareham, is a good Electi­on: [Page 229]Ordered, That 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.Ibid. 116. The Bailiff 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 Knt. of the Shire, who was unduly,Simon d'Ewes Jour. 283. Col. 2. or not at all Elected; yet he that is so Return'd, remains a Member of the House till his Election be declared Void.

Of double Returns, England. and new Writs Ex Memorials of Parliament.

‘That if any Sheriff be henceforth negligent in making his Returns of Writs of Parliament,St. 5 R. 2. c. 4. Sheriffs neglect­ing to make Re­turns, or leaving out the Returns of Cities or Bo­rought, shall be amerced, or otherwise punished, as in old Times. or that he leave out of the said Returns any Cities or Boroughs which be bound, and of old Time were wont to come to the Parlia­ment, he shall be amerced, or other­wise punished in manner as was accus­tomed in the said Case in times past.’

‘That from henceforth (in order to (the Elections of Counties) at the next County after the Delivery of the Writ,England. Proclamation shall be made in full County of the Day and Place of the Parliament,St. 7. H. 4. c. 15. Procla­mation to be made at the next County-Court af­ter the Delivery of the Writ to the She­riff for the Election of knights of the Shires. and that all they that be there present, as well Suitors duly sum­moned for the same Cause, as other shall attend to the Election of the Knights for the Parliament; and then in the full County they shall proceed to the Election freely and indifferently, notwithstanding any Request or Com­mandment to the contrary.’

‘And after they be chosen,Sheriff's Return after the Election shall be by Inden­ture (con­taining the Per­sons cho­sen) seal­ed by the Electors, and annexed to the Writ. the Names of the Persons so chosen (be they pre­sent or absent) shall be written in an In­denture under the Seals of all them that did choose them, and tacked to the same Writ, which Indenture so sealed and tacked, shall be holden for the Sheriff's Return of the said Writ touch­ing Knights of the Shires.’

In Writs of Parliament hereafter to be made, this Clause shall be put; Et Electionem tuam in pleno Comi­tatu factam sub sigillo tuo, & sigillis eorum qui electioni illi interfuerant, [Page 231]nobis in Cancellaria nra' ad diem & locum in brevi contentu' certifices indilate. England.

‘Forasmuch as in the Statute (7 H. 4. ch. 15.) no Penalty was ordained or limited in special upon the Sheriffs of the County, if they make any Returns contrary of the same Statute, St. 11. H. 4. c. 1. Of Re­turns made by Sheriffs, contrary to the Sta­tute 7 H. 4. c. 15. Justices of Assize im­power'd to inquire, and on In­quest and Proof made thereof, such She­riffs to pay 100 l. to the King. It is or­dained that the Justices assigned to take Assizes, shall have Power to inquire at their Assizes of such Returns made; and if it be found by Inquest and due Examination before the same Justices that any such Sheriff hath made, any Return contrary to the Tenor of the said Statute, the same Sheriff shall in­cur the Penalty of 100 l. to be paid to our Lord the King.’

‘That all Sheriffs shall have their An­swer and Traverse to Inquests and Of­fices,St. 6 H. 6. c. 4. Sheriffs shall have their Tra­verses to Inquests, &c. upon the St 7.4. c. 15. & 11 H. 4. c. 1. before any Justices, of Assizes hereafter to be taken, (upon the Stat. 7 Hen. IV. chapter 15. and 11 Hen. IV. ch. 1.) and the said Sheriffs shall not be endamaged unto our Lord the King, or his Successors, for any such Inquest taken, until they be duly con­vict according to the Form of Law.’

‘That such are to be chosen Knights of the Shire as have the greatest Num­ber of them that may expend 40 s. by Year and above,England. and shall be returned by the Sheriffs of every County,St. 8 H. 6. c. 7. See Cromp. Juris. 3. Hakewell 48. Knights for Parliament, by Indentures sealed be­twixt the said Sheriffs and the said Choosers.’

‘And every Sheriff of the Realm of England shall have Power to examine upon the Evangelists every such Choo­ser, how much he may expend by the Year.’

‘And if any Sheriff return Knights to Parliament contrary to the said Ordi­nance, the Justices of Assizes, in their Sessions shall have Power thereof to inquire.’

‘And if by Inquest the same be found before the Justices, and the Sheriff thereof be duly attainted, he shall in­cur the Penalty of 100 l. to be paid to our Lord the King, and also that he have Imprisonment by a Year, without Mainprize or Bail.’

And that in every Writ hereafter to go forth, Quere mention shall be made of this Ordinance.

‘That every Sheriff,St. 23 H. 6. c. 15. Sheriff, after the Receipt of the Writ, to deliver a Precept under his Seal to e­very May­or, Bai­liff, &c. of the Ci­ties and Boroughs within his County, reciting his Writ, and commanding them to choose, &c. after the Deli­very of any Writ (of Election) shall [Page 233]make and deliver without Fraud,England. a Precept under his Seal to every Mayor and Bailiff (or to Bailiffs or Bailiff where no Mayor is) of the Cities and Boroughs within his County, reciting the said Writ, and commanding them if it be by a City, to choose by Citi­zens of the same City, Citizens, and if it be a Borough, a Burgess, by the Burgesses of the same, to come to the Parliament.’

‘And that the same Mayor and Bai­liffs,Mayors, Bailiffs, &c. to re­turn the Precept to the Sheriff, by Inden­tures of the Ele­ction, and the names of the ele­cted. Sheriffs to return the Writ, and every Return made by such Mayors, Bailiffs, &c. (or Bailiffs or Bailiff, where no Mayor is) shall return the Precept to the same Sheriff and them, to be made of the said Elections, and of the Names of the said Citizens and Burgesses by them so chosen; and thereupon every Sheriff shall make a rightful Return of every such Writ, and of every Return by the Mayors and Bailiffs, (or Bailiffs or Bailiff, where no Mayor is) to him made.’

‘And that every Sheriff,Sheriffs acting contrary to this Sta­tute, or a­ny other Statute for Elections, to pay 100 l. to the King, (and suf­fer a Year's Imprison­ment, with out Bail,) (per Stat. 8 Hen. 6 ch. 7.) and forfeit to every Per­son chosen a Knight, Citizen, or Burgess, and not duly re­turned, or to any o­therwhich in their Default, will sue, 100 l to be recovered by Action of Debt against the Sheriff, his Executors or Administrators, with Costs wherein no Wager of Law, &c. at every time that he doth contrary to this Statute, or any other Statutes for the Election Knights, Citizens and Burgesses, be­fore this Time made, shall incur the [Page 234]Pain contained in the Statute,England. made the 8th Year (of the then King's Reign) and moreover shall forfeit and pay to every Person hereafter chosen Knight, Citizen or Burgess in his County, and not duly returned, or to any other Person which in Default of such Knight, Citizen or Burgess will sue, an hun­dred Pound, whereof every Knight, Citizen and Burgess so grieved, seve­rally, or any other Person which in Desault will sue, shall have his Action of Debt against the said Sheriff or his Executors or Administrators, to demand and have the said 100 l. with his Costs spent, and that in such Action the De­sendant shall not wage his Law or have any Essoign.’

‘And if any Mayor and Bailiffs (or Bailiffs or Bailiff,Mayors, Bailiffs &c returning other than those cho­sen by Ci­tizens and Burgesses, shall for­feit 40 l. to the King, and to every Person chosen a Citizen or Burgess, and not by them re­turned, or to any o­ther that in Default of such Citizen or Burgess will sue 40 l. (more) to be re­covered by like Action of Debt, with Costs. where no Mayor is) shall return other than those which be chosen by the Citizens and Burgesses of the said Cities or Boroughs, he shall incur and forfeit to the King 40 l. and moreover shall forfeit and pay to every Person so chosen Citizen or Burgess, and not by the same Mayor and Bai­liffs, or Bailiff (or Bailiffs where no [Page 235]Mayor is) returned,England. or to any other Person, which in Desault of such Citi­zen or Burgess so chosen will sue 40 l. whereof every of the Citizens and Bur­gesses so grieved severally, or any other Person which in their Default will sue, shall have his Action of Debt against every of the said Mayor and Bailiffs (or Bailiffs or Bailiff where no Mayor is) against their Executors or Admini­strators, to demand and have of every of them 40 l. with his Costs expen­ded.’

‘And that in such Action of Debt, no Defendant shall wage his Law nor have any Essoign.’

‘And every Sheriff that maketh no due Election of such Knights in con­venient Time (that is to say) every Sheriff in his full County, betwixt the Hour of Eight, and the Hour of Ele­ven before Noon, without Collusion; and that maketh not good and true Return of such Elections of Knights in Manner aforesaid,Sheriff not making E­lection of Knights of the Shire in a full Coun­ty Court between 8 and 11 in the Morning, and a good Re­turn accordingly, to forfeit 100 l. to the King, and 100 l. more to him that will sue, to be recovered by like Action of Debt with Costs. shall forfeit to the King an hundred Pound, and also in­cur the Pain of 100 l. to be paid to him that will sue him, his Executors or Administrators, by Way of Action of Debt, with his Costs expended, [Page 236]without waging of Law or having Es­soign as aforesaid.’ England.

‘Provided always,Such Actions to be brought by such Knight, Citizen, and Bur­gess with­in 3 Months after the Commen­cement of suce Par­liament, and to be proceeded in without Frand. And af­ter that time by a­ny other. See Cromp. Juris. 3. Hakewel 43. That every Knight, Citizen and Burgess chosen, and not re­turned as aforesaid, shall begin his said Action within three Months after the same Parliament commenced, to pro­ceed in the same Suit effectually with­out Fraud. And if he doth not so, another that will sue shall have the said Action of Debt (as is before said) and shall recover the same with his Costs, and that no Defendant in such Action shall wage his Law nor be es­soign'd. And that such Process shall be in the Actions aforesaid, as in a Writ of Trespass done against the Peace at the Common Law.’

‘That the Knights of the Shires shall be notable Knights of the same Coun­ties for which they shall be chosen,Like Pro­cess to be in such Actions as in Tres­pass at Common Law. Provided, That Knights of the Shires be Knights of the Counties they shall be elected for, or Esquires or Gentlemen, able to be Knights, and not Yeomen or under. or otherwise such notable Esquires or Gen­tlemen (born) of the same Counties, as shall be able to be Knight; and no Man to be such Knight which standeth in the Degree of a Yeoman and under.’

‘That Elections shall be made for the Sheriffs and Boroughs in Mon­mouthshire (heretofore Part of Wales) and in Wales, England. in like Manner,St. 27 H. 8. c. 26. Duties of Sheriffs and other returning Officers in Wales, like the same in England. Form and Order as Knights and Burgesses be elected in other Shires of this Realm.’

‘That the County Palatine of Chester shall have two Knights for the said County,St. 34 and 35 H. 8. c. 13. Writ of Election under the Great Seal for Ele­ctions in Chester, to be direct­ed to the, Chamber­lain, &c. of Chester, and his Precept thereon to the Sheriff of the Coun­ty. and two Citizens to be Bur­gesses for the City of Chester, to be elected and chosen by Process to be awarded by the Chancellor of England unto the Chamberlain of Chester, his Lieutenant or Deputy for the Time being, and so like Process to be made by the Chamberlain, his Lieutenant or Deputy, to the Sheriff of the said County of Chester, and the same Ele­ction to be made in like Manner and Form to all Intents, Constructions and Purposes, as is used within the County Palatine of Lancaster or any other County and City within England, which said Knights and Burgesses and every of them shall be returned by the said Sheriff into the Chancery of Eng­land in due Form, and upon like Pains [Page 238]as is ordained that the Sheriff or She­riffs of any other County should make their Return.’ England. Sheriff of Chester to make like Returns, and on like Pains as other Sheriffs.

‘That the Burgesses of all Cities,Stat. 35 H. 8. c. 11. Mayors, Bailiffs, &c. of the twelve Shire-Towns in Wales and of Mon­mouth-Shire, shall summon the Bur­gesses as well of all other Ci­ties, Bo­roughs, and Towns in those Counties as of Bur­gesses of those Towns themselves, to come to Elections. Bo­roughs, and Towns (in the twelve Shires within Wales and County of Monmouth not finding Burgesses for the Parliament themselves and contribu­tary to Wages of Burgesses of such Shire Towns) shall be lawfully admonished by Proclamation or otherwise by the May­ors, Bailiffs, and other Head Officers of the said Towns, or by one of them, to come and give their Elections for the Electing the said Burgesses at such Time and Place lawful and reasonable, as shall be assigned for the same by the said Mayors, Bailiffs, and other Head Officers of the said Shire Towns, or by one of them.’

‘That the County Palatine of Dur­ham may have two Knights for the same County,St. 25 C. 2. c. 9. Writ of Election under the Great Seal for Electi­ons in Dur­ham, to be directed to the Bi­shop of Dur­ham, &c. and his Precept thereon to the Sheriff of that County. and the City of Dur­ham two Citizens to be Burgesses for the same City, to be elected by Writ to be awarded by the Lord Chancellor or Lord Keeper to the Lord Bishop of Durham, or his Temporal Chancellor [Page 239]of the said County,England. and a Precept to be thereupon grounded and made by the said Lord Bishop, or his Temporal Chancellor to the Sheriff of the said County; and the same Election to be made in Manner following, viz. the Elections of the Knights to be made by the greater Number of the Freeholders of the said County Palatine which shall be present at such Elections, as is used in other Counties of this Kingdom, and that the Election of the said Burgesses for the City of Durham, to be made by the major part of the Mayor, Al­dermen, and Freemen of the said City, which shall be present at such Electi­ons, which said Knights and Burgesses,Sherish of Durham to make like Returns, and under like Pains, as other Sheriffs. St. 7 and 8 W. 3. c. 7. continued by St. 12 and 13 W. 3. c. 5. False Re­turns ille­gal and prohibited and all made con­trary to the last De­terminati­on of the Right of Election in the House of Commons adjudged a false Return. so elected, shall be returned by the said Sheriff into the Chancery in due Form, and upon the like Pains as be ordained for the Sheriff or Sheriffs of any other County in like Cases.’

‘That all false Returns wilfully made of any Knight of the Shire, Citizen, Burgess, Baron of the Cinque-Ports, or other Members are against Law, and are hereby prohibited, and in case that any Person or Persons shall return any Member for any County, City, Borough, Cinque-Port, or Place, con­trary to the last Determination in the House of Commons of the Right of [Page 240]Election in such County,England. City, Bo­rough, Cinque-Port, or Place, such Return is hereby adjudged a false Re­turn.’

‘The Party so grieved (to wit) He that shall be duly elected for any Coun­ty,Officers, &c. mak­ing such false Re­turn, li­able to an Action at the Suit of any duly elected in any of the Courts at Westmin­ster with double Damages and full Costs. City, Borough, Cinque-Port, or Place, by such false Return may sue the Officers and Persons making or pro­curing the same, and every or any of them at his Election, in any Court of Record at Westminster, and shall reco­ver double Damages with his full Costs.’

‘Any Officer that shall wilfully,Officers, &c. falsly, &c. mak­ing double Returns li­able to the like Acti­on. fal­sly, and maliciously return more Per­sons than are required to be chosen by the Writ or Precept on which any Choice is made, the like Remedy may be had against him or them, and the Party or Parties that willingly procure the same, by the Party grieved.’

‘All Contracts,Contracts, Bonds, &c. given to procure the Return of any Member adjudged void, and such as make or give them to procure any false or double Return, forfeit 300 l. one third to the King, ano­ther to the Poor of the Coun­ty, City, &c. and a third to the Informer, with his Costs, to be recovered by Action of Debt, &c. wherein no Essoign, &c. Promises, Bonds, and Securities whatsoever hereafter made or given, to procure any Return of any Member, or any thing relating thereto, be adjudged void, and that whoever makes or gives such Contract, Security, Promise, or Bond, or any Gift or Re­ward [Page 241]to procure such false or double Return,England. shall forfeit 300 l. one third Part to his Majesty, another third Part to the Poor of the County, City, Bo­rough, or Place concern'd, and one third Part to the Informer, with his Costs to be recovered in any Court of Record at Westminster by Action of Debt, Bill, Plaint, or Information, wherein no Essoign, Protection, or Wa­ger of Law allowed, nor more than one Imparlance.’

The Clerk of the Crown to keep a Book of Entry of every single and double Re­turn, and of every Alteration and A­mendment in every such Return, where­to all Persons to have Access, and take Copies of so much as desired at a reasonable Fee. And if the Clerk of the Crown makes not such Entry in Six Days after any Return, or alters any Return without Order of the House of Commons, or gives a Certificate of any Person not returned, or wilfully neg­lects or omits his Duty herein, to for­feit 500 l. for each Offence to the Par­ty grieved, to be recovered as afore­said, [Page 242]and lose his Office, England. and be for ever incapable of holding it.

‘Every Information or Action brought upon this Statute,Informati­ons or Ac­tions on this Sta­tute to be brought within two Years after the Cause. shall be brought within the Space of two Years after the Cause of Action shall arise.’

‘That when any New Parliament shall at any Time hereafter be Sum­moned or called,Staf. - & 8 W. 3. c. 25. Writs of Summons to Parlia­ment to have forty Days be­tween the Teste and Returns, and be is­sued with all Expe­dition, and delivered to the pro­per Officer to whom its Execu­tion be­longs, who shall in­dorse thereon the Day he receiv­ed it, and within three Days issue out his Pre­cept to the like proper Of­ficer of each Bo­rough, &c. who shall also in­dorse the Day of his Re­ceipt of the Pre­cept in the former's Presence, and pro­ceed to E­lection in eight Days and give four Days Notice of the Day appointed. there shall be forty Days between Teste and Returns of the Writs of Summons, and that the Lord Chancellor, Lord Keeper, or Lords Commissioners of the Great Seal for the Time being, shall issue out Writs for Election of Members to serve in the same Parliament with as much Expedi­tion as the same may be done. And that as well upon the calling or sum­moning any New Parliament, as also in case of any Vacancy in Parliament, the several Writs shall be deliver'd to the proper Officer to whom the Exe­cution thereof doth belong or appertain, and to no other Person whatsoever. And that every such Officer, upon the Re­ceipt of the same Writ, shall upon the back thereof indorse the Day he receiv'd the same, and shall forthwith, send his Precept or Precepts to each Borough, [Page 243]Town Corporate,* Port,England. or Place with­in his Jurisdiction, where any Member or Members are to be elected to serve in such New Parliament, or to supply any Vacancy in Parliament, and within three Days after the Receipt of the said Writ, shall by himself or proper Agent deliver or cause to be delivered such Precept or Precepts to the proper Of­ficer of every such Borough, Town Cor­porate, * Port, or Place within his Ju­risdiction, to whom the Execution of such Precept doth belong or appertain, and to no other Person. And every such Officer, upon the back of the same Pre­cept, shall indorse the Day of his Re­ceipt thereof in the Presence of the Par­ty from whom he received such Precept, and shall forthwith cause Notice to be given of the Time and Place of Electi­on, and shall proceed to Election there­upon within the Space of eight Days next after his Receipt of the same Pre­cept, and give four Days Notice at least of the Day appointed for the Election.’

‘Neither the Sheriff nor his under Sheriff in any County or City,No Sheriff &c. in any County or City, nor Mayor, &c. of any Borough Town, Port or Place to whom the Execution of any Writ or Precept belongs, to pay or receive any Fee, &c. for making out, Receipt, Delivery, Return, or Execution of the same. nor the Mayor, Bailiff, Constable, Portreeve, [Page 244]or other Officer or Officers of any Bo­rough,England. Town Corporate, Port or Place, to whom the Execution of any Writ or Precept for electing Members, doth be­long or appertain, shall give, pay, re­ceive or take any Fee, Reward, or Gra­tuity for making out, Receipt, Deli­very, Return, or Execution of any such Writ or Precept.’

‘Upon every Election to be made of any Knight or Knights of the Shire to serve in Parliament,Sheriff, for Electi­on of Knights of the Shire, to hold his County Court where the same has been most usually kept for forty Years last, and pro­ceed to the Elec­tion the next Court unless it happen within six Days after the Re­ceipt of the Writ, or the same Day, and then to adjourn giving ten Days no­tice of the Time and Place. If a Poll required, the She­riff, &c. forthwith to proceed thereon publickly and ap­point Clerks to take the Poll in his &c. Pre­sence, who shall be sworn to take it in­different­ly, and set down each Free-hol­der's Name, the Place of his Free­hold, and for whom he polls, and to poll no Free­holder not sworn, if requir'd by any Can­didate. the Sheriff of the County where such Election shall be made, shall hold his County Court for the same Election at the most publick and usual Place of Election within the said County, and where the same has most usually been for 40 Years last past, and shall there proceed to Election at the next County Court, unless the same fall out to be held within six Days after the Receipt of the Writ, or upon the same Day, and then shall adjourn the same Court to some convenient Day, given ten Days Notice of the Time and Place of Election; and in case the said Election be not determined upon the View with the Consent of the Free­holders there present, but that a Poll shall be required; the said Sheriff, or in [Page 245]his Absence, the Under-Sheriff,England. with such others as shall be deputed by him, shall forthwith there proceed to take the said Poll in some open or publick place or places, by the same Sheriff or his Under-Sheriff in his Absence, or others appointed for the taking thereof as a­foresaid: And for the more due and or­derly proceeding in the said Poll, the said Sheriff, or in his Absence his Un­der-Sheriff, or such as he shall depute, shall appoint such Number of Clerks as to him shall seem convenient, for the taking thereof, which Clerks shall all take the said Poll in the presence of the said Sheriff, or his Under-Sheriff, or such as he shall depute; and before they begin to take the said Poll, every Clerk so appointed shall by the said Sheriff, or his Under-Sheriff aforesaid, be Sworn truly and indifferently to take the same Poll, and to set down the Names of each Free-holder, and the Place of his Free-hold, and for whom he shall Poll, and to Poll no Free-hold­er who is not Sworn, if so required by the Candidates, or any of them (which Oath of the said Clerks, the said She­riff or his Under-Sheriff, or such as he shall depute, are hereby impowered to administer) and the Sheriff or his Under Sheriff shall appoint for each Candidate, [Page 246]such one Person as shall be nominated to him by each Candidate to be Inspect­ors of every Clerk,England. who shall be ap­pointed for taking the Poll,Sheriffs, &c. to ap­point for each Can­didate one Person no­minated by such Candidate to be In­spectors of every Clerk of the Poll. And to sweareach Free-hol­der before his Poll to be taken, if by any Candidate required, to his Freehold. and every Free-holder before he is admitted to Poll at the same Election, shall, if re­quired by the Candidates, or any of them, first take the Oath (in this Act contained) Which Oath the Sheriff by himself, or his Under-Sheriff, or such sworn Clerks by him appointed for take­ing the said Poll as aforesaid, are hereby authorized to administer.’

‘The said Sheriff,Sheriff, &c. at the Place of Election to proceed to the Poll, and not adjourn the Coun­ty Court to any o­ther Place, without the Candi­dates Con­sent, nor without such Con­sent delay or discon­tinue the Poll. or in his Absence his Under-Sheriff, or such as he shall de­pute, shall at the Place of Election pro­ceed to the Polling all the Free-holders then and there present, and shall not ad­journ the County Court then and there held to any other Town and Place within the same County, without the Consent of the Candidates, nor shall by any unnecessary Adjournment in the same Place of Election, protract or de­lay the Election; but shall duly and orderly proceed to take the said Poll from Day to Day, and Time to Time, without any further or other Adjourn­ment, without the Consent of the Can­didates, [Page 247]until all the Free-holders then and there present shall be polled.’ England.

‘Every Sheriff, Under-Sheriff, Mayor,Sheriffs, Mayors, &c. to de­liver to a­ny Person desiring it, a Copy of the Poll, paying reasonably for writ­ing it. Sheriffs, Mayors, &c. for e­very wil­ful Offence contrary to this Act, for­feits to each Party grieved 500 l. to be reco­vered by him, his Executors, &c. with full Costs, by Action of Debt &c wherein Essoign, &c. to be allowed. Bailiff, and other Officer to whom the Execution of any Writ or Precept shall belong, for the electing Members to serve in Parliament, shall forthwith de­liver to such Person or Persons as shall desire the same, a Copy of the Poll taken at such Election, paying only a reasonable Charge for writing the same; and every Sheriff, Under-Sheriff, May­or, Bailiff, and other Officer to whom the Execution of any Writ or Precept for electing of Members doth belong, for every wilful Offence contrary to this Act, shall forseit to every Party so ag­grieved the Sum of five hundred Pounds, to be recovered by him or them, his or their Executors or Administrators, to­gether with full Costs, for which he or they may sue by Action of Debt, Bill, Plaint, or Information, in any Court at Westminster, wherein no Essoign, Pro­tection, Wager of Law, Privilege, or Imparlance shall be allowed.’

‘Every Return of any Person under the Age of twenty one Years,The Re­turn of a­ny Person chosen un­der 21 Years, void. is here­by declared to be null and void.’

‘All County Courts for the County of York or any other County Courts,England. which heretosore used to be held on a Monday, County Courts for Yorkshire and others used to be held on a Menday, to be called and held on a Wednesday. shall be called and begun up­on a Wednesday, and not otherwise, a­ny Custom or Usage to the contrary.’

‘The Sheriff of the County of Sou­thampton, Sheriff, &c. of Hampshire, at the Re­quest of a­ny Candi­date, to adjourn af­ter the End of the Poll at Winchester to New­gate in the Isle of Wight. or his Deputy, at the Re­quest of one or more of the Candidates for Election of a Knight or Knights of that County, shall adjourn the Poll from Winchester, after every Frecholder then and there present is polled, to Newport in the Isle of Wight, for the Ease of the Inhabitants of the said Is­land, any thing in this Act to the con­trary.’

‘That no Person which shall refuse to take the Oaths (of Allegiance and Su­premacy) directed by an Act made in the first Year of His present Majesty and the late Queen Mary, St. 7 & 8. W. 3. c. 27. Sheriffs, &c. on the Poll at a­ny Electi­on to ad­minister the Oaths of Allegi­ance and Suprema­cy to Ele­ctors (and if Quakers the De­claration of Fideli­ty) at the Request of any Can­didate, and on Refusal not to ad­mit them to vote. or being Quakers, shall refuse to subscribe the Declaration of Fidelity directed by one other Act of Parliament made in the said first Year of the Reign of His pre­sent Majesty and the late Queen (which Oaths and Subscription respectively the [Page 249]Sheriff or chief Officer taking the Poll,England. at the Request of any one of the Can­didates are required to administer) shall not be admitted to give any Vote for the Election of any Knight of the Shire, Citizen, Burgess or Baron of the Cinque-Ports to serve in Parliament.’

‘That the Sheriff or other Officer ha­ving the Execution and Return of any Writ to Parliament, St. 10 & 11 W. 3. c. 7. Sheriffs, &c. by them­selves or Deputies, on or be­fore the Day any Parlia­ment shall called to meet, and not excee­ding four­teen Days after any Election made, to make his Return to the Clerk of the Crown, &c. shall on or before the Day that any suture Parliament shall be called to meet, and with all convenient Expedition, not exceeding fourteen Days after any Election made by virtue of any new Writ, either in Person, or by his Deputy, make Re­turns of the same to the Clerk of the Crown in Chancery, to be by him fi­led, &c. and pay to the Clerk of the Crown 4 s. for every Knight of the Shire, and 2 s. for every Citizen, Bur­gess, &c. which the Sheriff, &c. shall charge to the King, and have allowed upon his Account.

(See the Stat. &c. 7 & 8. W. c. 25. p. 107.) ‘The proper Officer of the Cinque-Ports shall be allowed six Days from the Receipt of such Writ for the Deli­very [Page 250]very of the Precept according to the Purport of the Act (7 and 8 W. III.G. Britain. c. 25.) any thing in the said Act, or any other Law, Statute or Usage to the contrary.’

‘Every Sheriff or other Officer aforesaid who shall not make the Returns accor­ding to the true Intent and Meaning of this Act,Sheriffs, &c. not making Returns according­ly, to for­feit for each Of­fence 500 l. one Moiety to the King, the other to him that will sue by Action of Debt, &c. wherein no Essoign, &c. to be allowed, and but one Imparlance. shall forfeit for every such Offence the Sum of 500 l. one Moiety to His Majesty, and the other Moiety to him or them that will sue for the same, to be recovered by Action of Debt, Bill, Plaint, or Information, in any Court at Westminster, wherein no Essoign, Protection, or Wager of Law allowed, nor more than one Impar­lance.’

‘That when any Parliament shall here­after be summoned or called,St. 6. An­nae c. 6. Writs to issue to the respe­ctive She­riffs or Stewarts, for choo­sing the 45 Repre­sentatives of Scotland to Parlia­ment Sheriffs, &c. there­on, forth­with to give No­tice of the Time of Election for the Shires. Clerks of the Meet­ings forth­with to return the Names of the elected to the Sheriff, who is to annex and return it with his Writ. the Forty five Representatives of Scotland in the House of Commons in the Parliament of Great Britain, shall be elected and chosen by Authority of the Queen's Writs, under the great Seal of Great Britain, directed to the several Sheriffs and Stewarts of the respective Shires and Stewartries, and the said several Sheriffs and Stewarts shall, on Receipt of such Writs, forthwith give notice [Page 251]of the Time of Election for the Knights or Commissioners for their respective Shires or Stewartries:G. Britain. And the Clerks of the said Meetings, immediately after the said Elections are over, shall respec­tively return the Names of the Persons elected to the Sheriff or Stewart of the Shire or Stewartry, who shall annex it to his Writ, and return it with the same into the Court out of which the Writ is issued.’

‘And as to the Manner of Election of the fifteen Representatives of the Royal Boroughs,Sheriff of Edinburgh, on Re­ceipt of his Writ, forthwith to direct his Pre­cept to the Lord Pro­vost, for electing the Bur­gess for that City Common Clerk of Edinburgh to certify the Name of the elected to the Sheriff, who is to annex and re­turn it with the Writ. the Sheriff of the Shire of Edinburgh shall, on Receipt of the Writ directed to him, forthwith direct his Precept to the Lord Provost of Edin­burgh, to cause a Burgess to be elected for that City, and their Common Clerk shall certify the Name of the Member elected to the Sheriff of Edinburgh, who shall annex it to his Writ, and re­turn it with the same into the Court, from which the Writ issued.’

‘And as to the other Royal Burghs divided into fourteen Classes or Di­stricts,’ Sheriffs, &c. in like Manner to direct their Pre­cepts to the Royal Burghs, for the e­lecting a Commissi­oner for each, and the Com­missioners of each District to meet at the presi­ding Bo­rough (by name) for each Di­strict on the thir­tieth Day after the Teste of the Writ, unless Sun­day, and then Men­day, to their Bur­gess. Common Clerk of such presiding Bo­rough forthwith to return the Name of the ele­cted to the She­riff, &c. in whose Shire such Borough is, who is to annex and return it with his Writ. Like Me­thod to be taken by Sheriffs, &c. in Case of Vacancy in Parliament Time, by Decease or Incapacity of a Member; and if for a Burgh the presiding Burgh at the first to preside at the new Election. [Page 252]the Sheriffs or Stewarts of the several Shires and Stewarties shall,G. Britain. on the Receipt of their several Writs, forthwith direct their several Precepts to every Royal Burgh within their res­pective Shires or Stewartries, reciting therein the Contents of the Writ and the Date thereof, and commanding them forthwith to elect each of them a Com­missioner as they used formerly to elect Commissioners to the Parliament of Scotland, and to order the said respe­ctive Commissioners to meet at the pre­siding Borough of their respective Di­strict (naming the said presiding Bo­rough) upon the thirtieth Day after the Day of the Teste of the Writ, unless it be upon the Lord's Day, and then the next Day after, and then to choose their Burgess for the Parlia­ment: And the Common-Clerk of the then presiding Borough shall immedi­ately after the Election return the Name of the Person so elected to the Sheriff or Stewart of the Shire or Stew­artry wherein such presiding Borough is, who shall annex it to his Writ, and return it with the same into the Court from whence the Writ issued. And in case a Vacancy shall happen in Time of Parliament, by the Decease or legal In­capacity of any Member, a new Mem­ber [Page 253]shall be elected in his Room,G. Britain. con­formable to the Method herein before appointed; and in Case such a Vacancy be of a Representative for any one of the said fourteen Classes or Districts of the said Royal Boroughs, that Borough which presided at the Election of the deceased or disabled Member, shall be the presiding Borough at such new E­lection.

‘Provided always that upon the issu­ing of the Writs of Summons for the electing of a Parliament, if any Shire or Stewartry where a Royal Borough is,In Writs to Sheriffs the Ele­ction of a Knight to be omit­ted, if the Shires (where a Royal Burgh is) have not then a Turn to elect. hath not then a Turn or Right to elect a Commissioner or Knight of the Shire or Stewartry for that Parliament, that then it shall be omitted out of the Writ, &c.

‘That every Person who shall refuse to take the Oath (of Abjuration) or being a Quaker, St. 6 An. ch. 23. Sheriffs, Presidents of Meet­ings, &c. on the Poll at a­ny Ele­ction of Members of Parlia­ment for Great Bri­tain, or of Commis­sioners for choosing Burgesses for Scot­land, at the Re­quest of any Can­didate or others to administer the Abjuration Oath (or Affirmation to Quakers) and Electors refusing it disabled to vote. shall refuse to declare the Effect thereof upon his solemn Af­firmation, as directed by an Act made 7. W. 3. which Oath or Declaration the Sheriff, President of the Meeting, [Page 254]or chief Officer taking the Poll at any Election of Members for any Place in Great Britain, G. Britain. or Commissioners for choosing Burgesses for any Place in Scot­land, at the Request of any Candidate or other Person present at such Election, (which they are to administer) shall not be capable of giving any Vote for the Election of any such Member, for any Place in Great Britain, or Commission­er to choose a Burgess for any Place in Scotland.

‘Enacted,St. 9 An. ch. 5. Candidate to be sworn to his Estate, if requi­red by a­ny other Candi­date, or two Ele­ctors. That every Person (except the eldest Son or Heir Apparent of a Peer, or of a Person qualified by this Act to serve as Knight of a Shire, or such as shall be elected for each of the Universities of England) shall upon Re­quest, at the time of the Election, or before the Day to be prefixed in the Writ of Summons for the Meeting of (any Subsequent) Parliament, by any other Person who shall stand Candidate at such Election, or by any two or more Persons having a Right to Vote at such Election, take a Corporal Oath in the Form, (in this Act contained,) Vide aute.

‘The respective Oaths aforesaid shall be administred by the Sheriff or Under-Sheriff for any County,G. Britain. or by the May­or, Bailiff,The Oaths to be admi­nistred by the She­riff or o­ther Offi­cer by whom the Poll is to be taken, and Re­turn made or two or more Ju­stices of the Peace. Who are to certify the same into the Chancery or Queen's Bench within 3 Months, under 100 l. For­feiture, to be recovered by Action of Debt, &c. half to the Queen, and half to him that sues, with full Costs. or other Officer or Officers for any City, Borough, &c. to whom it shall appertain to take the Poll, or make the Return at such Election, or by any two or more Justices of the Peace within England, &c. and the said Sheriff, Mayor, Bailiff, or other Offi­cers; and the said Justices of the Peace respectively are hereby required to cer­tify the taking thereof into Chancery, or the Queen's Bench, within three Months after the taking the same, un­der the Penalty of forfeiting one hun­dred Pounds, one Moiety to the Queen, and the other to such Person or Persons as will sue for the same, to be recovered with full Costs, by Action of Debt, Bill, Plaint, or Information, in any Court of Record at Westminster.

‘No Fee or Reward shall be taken for administring any Oath, or making,1 s. only to be paid for the Oath, 2 s. for ma­king, and 2 s. for fi­ling the Certifi­cate, un­der 20 l. Forfei­ture, to be reco­vered and divided as above. re­ceiving, or filing the Certificate there­of, except one Shilling for administring the Oath, and two Shillings for making the Certificate, and two Shillings for receiving and filing the same, under the [Page 256]Penalty of twenty Pounds to be forfeit­ed by the Offender,G. Britain. and to be recover­ed and divided as aforesaid.’

‘That upon every Election to be made of a Knight of a Shire within England, St. 10. An. ch. 23. Sheriff, &c. to swear each Freehol­der, if by any Can­didate or Voter re­quired. Sheriff, &c. shall enter the Place of the Ele­ctor's Freehold, of his A­bode, and Jurat' a­gainst the Name of every Vo­ter sworn, and with in twenty Days af­ter the Elections deliver the Poll-Books up­on Oath to he Clerk of the Peace &c. every Free-holder before he is admitted to Poll, shall, if required by the Can­didates, or any of them, or any other Person having a Right to Vote, first take the Oath (in this Act contained) which Oath the Sheriff, &c. is to ad­minister: And in taking the Poll, the Sheriff, &c. shall enter not only the Place of the Elector's Freehold, but al­so the Place of his Abode, and Jurat' against the Name of every Voter, who shall be tender'd and take the Oaths hereby required; and the Sheriff, or re­turning Officer, shall within twenty Days after such Election, deliver over upon Oath (to be administred by the two next Justices of the Peace, one of the Quorum) unto the Clerk of the Peace of the same County, all the Poll-Books of such Elections, and in Coun­ties where there are more than one Clerk of the Peace, the Original to one, and attested Copies to the rest, to be kept among the Records of the Ses­sions of the Peace for the County: And [Page 257]of an Act, (7 Guil. III.) Intituled, G. Britain. An if any Quaker, Sheriff, &c. to ad­mit any Quaker to vote du­ring the Act 7 W. 3. and ac­cept his Affirma­tion to the Effect of the Oath, ac­cording to the said Act, in­stead thereof; and enter Affirmat' against the Name of such Quaker. during the Continuance of an Act, (7 Guil. III.) Intituled, An Act that the solemn Affirmation and Declaration of the People called Quakers, shall be accepted instead of an Oath in the usual Form) shall up­on such Election, if required by the Candidates or any of them, declare the Effect of the said Oath upon his solemn Affirmation in such Manner and Form as is directed by the said Act, every such Quaker shall be capable and ad­mitted to give his Vote for the Election of any such Member within England; and every Sheriff, &c. is hereby autho­rized and required to accept such Affir­mation instead of the said Oath, and shall enter Affirmat' against the Name of every such Quaker.

‘That any of the Electors present,2 St. 12 Annae Praeses of the Meet­ing upon Request of any E­lector of a Shire or Stewartry in Scotland to swear either E­lector or Candi­date to their Estates. suspecting any Person or Persons (ei­ther Electors or Candidates for Shires or Stewartries in Scotland) to have his or their Estates in Trust, and for the Behoof of another, may require the Praeses to the Meeting, to tender the Oath (in this Act contained) and the said Praeses is required to admini­ster the same.’

‘Returning Officers are ordained to make their Returns of the Persons ele­cted by the Majority of the Freehol­ders inrolled,G. Britain. and those admitted by them,Return­ing Offi­cers to re­turn Per­sons ele­cted by a Majority of Free­holders in rolled, and those admitted by them, with Liberty of objecting, &c. reserving always the Liberty of objecting against the Persons admitted to, or excluded from the Poll, as for­merly.’

‘All Sheriffs of Shires and Stewarts of Stewartries shall,Sheriffs and Stew­arts under 50 l. Pe­nalty, half to the Queen, half to him that sues be­fore the Court of Session, &c. to make pub­lick Inti­mation at the Parish Churches within their Jurisdictions three Days before the Diet of Elections. under the Pain of 50 l. Sterling, one Moiety whereof shall be to the Queen, Her Heirs and Successors, and the other to the Per­son or Persons who shall sue for the same, to be recovered before the Court of Ses­sion, by any Action summarily, with­out abiding the Course of the Roll, make the publick Intimations required by the Laws of Scotland, at the several Parish Churches within their respective Jurisdictions, at least three Days before the Diet of Elections.’

‘That the Oath or Affirmation (which see ib.) the Officer or Officers presiding,St. 2 G. 2. ch. 4. Presiding Officer to administer the Oath or Affir­mation, on Forfei­ture of 50 l. or taking the Poll at such Election, is and are hereby impowered and required to administer gratis, if demanded, up­on Pain to forfeit the Sum of Fifty [Page 259]Pounds of lawful Money of Great Britain, G. Britain. to any Person that shall sue for the same, to be recovered, with full Costs, by Action of Debt, Bill, Plaint or Information in any Court of Record at Westminster, wherein no Es­soign, Protection, Wager of Law, or more than one Imparlance; and if the said Offence shall be committed in that Part of Great Britain called Scotland, then to be recovered, together with full Costs, by summary Action, or Com­plaint before the Court of Session, or by Prosecution before the Court of Ju­sticiary there, for every Neglect or Refusal so to do; and no Person shall be admitted to poll, till he has taken and repeated the said Oath in a pub­lick Manner, in Case the same shall be demanded as aforesaid, before the re­turning Officer or such others as shall be legally deputed by him.’

‘If any Sheriff, Mayor,Sheriff or other re­turning Officer admitting any to be polled, be­fore sworn to forfeit 100 l. Bailiff or other returning Officer shall admit any Per­son to be polled, without taking such Oath or Affirmation, if demanded, as aforesaid, such returning Officer shall forfeit One hundred Pounds, to be re­covered as aforesaid, together with full Costs; and if any Person shall vote or poll at such Election, without having first taken the Oath, or, if a Quaker, [Page 260]having made his Affirmation as afore­said,G. Britain. if demanded, such Person shall incur the same Penalty,Voters to incur the like Pe­nalty. Return­ing Offi­cer, after reading the Writ, to take the fol­lowing Oath. which the Of­ficer is subject to for the Offence above mentioned.’

‘That every Sheriff, Mayor, Bailiff, Headborough or other Person, being the returning Officer of any Member to serve in Parliament, shall, immedi­ately after the Reading the Writ or Precept for the Election of such Mem­ber, take and subscribe the following Oath (which see ante.)

‘Which Oath any Justice or Justices of the Peace of the said County, City, Corporation or Borough, where such Election shall be made, or, in his or their Absence, any Three of the Ele­ctors, are hereby required to admini­ster; and such Oath so taken, shall be entred among the Records of the Ses­sions of such County, City, Corpora­tion and Borough as aforesaid.’

‘If any returning Officer,Penalty of wilful Perjury. Elector or Person taking the Oath or Affirmation herein before mentioned, shall be guilty of wilful corrupt Perjury, or of false affirming, and be thereof convicted by due Course of Law, he shall incur and suffer the Pains and Penalties, which by Law are enacted or inflicted in Ca­ses of wilful and corrupt Perjury.’

‘That all and every the Sheriffs, May­ors,G. Britain. Bailiffs and other Officers,The Act to be read by the Sheriff, &c. after reading the Writ, to whom the Execution of any Writ or Precept for electing any Members belongs, shall, at the Time of such Election, immediately after the Reading of such Writ or Pre­cept, read, or cause to be read, openly before the Electors there assembled, this present Act, and every Clause therein contained; and the same shall also o­penly be Read once in every Year at the General Quarter Sessions of the Peace after Easter, and at the Quarter Sessions after Ea­ster, and on elect­ing Ma­gistrates, &c. for any County or City, and at every Election of the chief Magistrate in any Borough, Town Corporate, or Cinque-Port, and at the annual Election of Magistrates, and Town Counsellors for every Borough in Scotland.

‘That every Sheriff, Under-Sheriff,Wilful Offence forfeits 50 l. Mayor, Bailiff and other Officer, to whom the Execution of any Writ or Precept for the electing of Members doth belong, for every wilful Offence, contrary to this Act, shall forseit 50 l. to be recovered with full Costs as be­fore directed.’

‘Provided,Prosecu­tion to com­mence within two Years. That no Person shall be made liable to any Incapacity, Disabi­lity, Forfeiture or Penalty, by this Act, unless Prosecution be commenced within two Years after such Incapacity, [Page 262] &c. incurred, or in Case of a Prosecu­tion the same be carried on without wilful Delay; any Thing herein to the contrary.’

After a Recital of the St. 7.8.St. 6. G. 11. c. 23. W. 3. and the Inconveniencies of County Courts being adjourned to Mondays, Fridays or Saturdays, it enacts, That no County Court in England, shall be adjourn'd to a Monday, Friday or Saturday, and all Adjournments and Acts done at such Courts so adjourn'd, to be null and void, any Law, Custom or Usage, to the con­trary.

Provided, That any County Court be­gun, holden on, or adjourned to any Day (not prohibited by this or the said former Act) for electing any Knight of the Shire for any County, or for hearing and determining Causes, or for such other Matters and Business as are usually trans­acted at County Courts, may be adjourn­ed over from Day to Day, tho' the same may happen to be on a Monday, Friday or Saturday, until such Election or o­ther Matters be fully finished, any thing therein to the contrary, &c.

CHAP. XIII. Election of the Speaker.

THE Speaker is he that doth prefer and commend the Bills exhibited to 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. See Bo­hun's Coll. 352. con­tra. the Commons are to choose their Speaker; but seeing that after their Choice the King may refuse him; for avoiding of expence of Time and Con­testation, the Use is (as in the Conge d'Eslier of a Bishop) that the King doth name a discret 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,Id. 8. and choose another. So in 1 Hen. 4. Sir John Cheyny discharged; and so William Stur­ton. So in 15 Hen. 6. Sir John Tyrrel removed. So March 14. 1694. Sir John Trevor.

The first Day each Member is called by his Name,Modus te­nend. Pal. 35. every one answering for [Page 264]what Place be 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. See Bo­hun's Coll. 352, 353. So John Puckering 27 Eliz. So George Snagg 31 Eliz. So Edward Coke 35 Eliz. So Yelverton 39 Eliz. So John Crook 43 Eliz. So Sir Thomas Crew 19 Jac. 1. So Sir Heneague Finch 1 Car. 1. cum multis aliis.

The Speaker ought to be religious,Towns. Coll. 1.4. honest, grave, wise, faithful, and Secret. These Virtues 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. (Sed aliter ab Antiquo.)

Surely the Election of the Speaker was antiently 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 discharg'd by [Page 265]the King (i. e. on his excuse); and there­upon the Commons chose and presented William Tresham Esq who made no Ex­cuse. See the like of Paul Foley, in Bo­hun's Collection, 353.

The Cause of Summons being declared by the King or Chancellor;Elsing. 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. Town. Coll. 174. See Bo­hun ut Su­pra. one of the Com­mons puts the rest in mind of their Charge given in the Upper 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. Town. 174. Vide Sir S. d'Ewe's Jour. pas­sim. and sit) doth put the House in mind, that for their better pro­ceeding in the weighty Affairs they are [Page 266]come about, their first Work is to ap­point a Speaker; and re-commends to the House some Person of Fitness and Abi­lity for the 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, he was by general Acclamation chosen Speaker.

When the Speaker is chosen,Co. 12.115. Vid. Towns. 175 Vid. Sir S. d'Ewe's Jour. pas­sim. Elsyng. 153 Vid. Town. 175. Vide Sir S. d'Ewe's Jeur. pas­sim. 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, 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 [Page 267]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. Town. 175. Vide Sir Simon d'Ewe's Jour. pas­sim. two of the Members (which for the most Part ware 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 (Elsying 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 En­deavours 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. See Bohun ut Supra.

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

And the next Day,Co. 12.115. Rush. Coll. 480. Smyth's Common­wealth 80. or 2 or 3 Days after the Commons shall present the Speaker in the Upper House to the King, where he shall disable himself again to the King, and in most humble manner shall intreat the [Page 268]King to command them to choose a more sufficient Man. Vide ante 265. aliter.

At the Day appointed,Elsyng. 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 confers 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. Elsyng. 164 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, 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. Vi. Towns. Coll. 4. & 54 Rush. Coll. 424. First, That the Com­mons in this Parliament may have free [Page 269]Speech, Vide El­syng. 164. 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 injoy that Liberty by the King's Grace and Favour: yet they are clearly answered by the words that accompany [Page 270]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,Eisyng. 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 Sovereign,Sir R. At­kin's 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 merely of Favour, or may be re­fused them (of Right.)

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 [Page 271]out of unfeign'd and sincere Heart to do them service.

The first Business in the House is or­dinarily to read a Bill that was not pass'd in the last Parliament preceeding, or some new Bill, as in that of 10 Jac. 1.Scobel 5. Vide Sir Sir Simon d'Ewes Jour. 43, 44. 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.

See the Form and Manner of Electing Paul Foley, Esq to be Speaker,Bohun's Collecti­on of De­bates p. 350 to 354 after the Censure of Sir John Trevor, for a High Crime and Misdemeanor, in re­ceiving a Gratuity (or Bribe) of 1000 Gui­neas of the City of London, on passing the Orphans Bill.

CHAP. XIV. Business of the Speaker.

THE Mace is not carried before the Speaker,Eisyng. 153 until his Return, being presented to the King, and allow'd of.

The speaker sits in a Chair placed some­what high,Modus te­nend. Parl. 36. Smith's Common­wealth, 84. to be seen and heard the bet­ter of all; the Clerks of the House sit before him in a lower Seat, who read Bills, Petitions, &c.

The Speaker's Office is, when a Bill is read,Modus te­nend. Parl. 37. Smith's Common­wealth, 86. Hakewel 138, 139. Sir Simon d'Ewes Jour. 43.44. as briefly as he may, to declare the Effects thereof to the House.

That Day that the Speaker, being ap­proved by the King, cometh down into the Commons House to take his Place, the Custom is, to read for that time only one Bill lest unpast the last Sessions, and no more; This is done, to give him Sei­sin, were, as it 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,Note. 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 Meeting of the House, 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 Jour. 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,Scobel 20. Vid. Tow. Col. 216.217. Vide Sir S. d'Ewes Jour. pas­sim. Scobel 65. Petyr's Mis [...]ell. 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.R [...]b. Col. 66 [...]. 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,See S [...]dens Lise. 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,Towns. Col. 263. Vide Sir S. d'Ewes Jour. 6 [...]. Col. 1.2. Towns. Col. 61. he, with the whole House, sell upon their Knees, and so continued, till she bid them stand up.

35 Eliz. Mr. Speaker was sent for to the Court, where the Queens Majesty [Page 275]her self gave him Commandment what to deliver to the House.

The Speaker was 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. Col. 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 Die, Resolved,Id. 1137. 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 Miscol. 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: [Page 276]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,Hakewel 145. it ap­pear that the Members are equal; 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. Rush. Col. 3. p. v. 1. p. 35. nor will they suffer him to speak in any Bill, to move, or disswade it.

It was resolved by Vote in the last Parliament (says Mr. Harbottle Grim­ston, in his Speech Nov. 9. 1640.) That the Speaker refusing to put the Question, being thereunto requir'd by the House; or to adjourn the House upon any Com­mand whatsoever, without the Consent and Approbation of the House it self; were Breaches and Violations that high­ly impeached our Priviledges.

Ordered,Id. p. 42. That Mr. Speaker be intreat­ed to be here this Afternoon (viz. 10 Nov. 1640. to sit by, at the great Com­mittee of Irish Affairs; and if there be Cause, to resume the Chair.

Nov. 20. 1640.Id. p. 53. This Day the House ordered the Speaker should sit in the Afternoon.

Note, The Speaker is said to be not only the Mouth, but the Eyes and Ears of the House. And hence it was, That when King Charles I. commanded the Speaker on his allegiance to discover cer­tain Transactions, &c. in the House; he justly reply'd. That he had neither Eyes to See, Ears to Hear, nor Mouth to Speak, but as the House shall direct him.

See also several Letters, Messages, &c. of that Prince to and by the Speaker to the House in Rapin's History, Vol. II, Numb. 57, &c.

CHAP. XV. 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 the 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 Suron a [...], Jour. 282. Col. 2. Upon a Motion made by Sir John Croft, Comptroller of her Majesty's 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 Trouse depart, and come forth in comely 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;Town. 101, 181. Vide Sir S. d'Ewes Jour. 550. Col. 1.623. Col. 1. Scobel. 6. Vide Sir S. d'Ewes Jour. 487. 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, 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, 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,Town. 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,Town, Coll 252. we do him great wrong to interrupt him: if foolishly, let us hear him out, we shall [Page 280]have the more Cause to tax him, per Sc­cretary Cecil.

If more than one stand up at once,Scobel. -. Vide 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 up before him, whom the Speaker calls, and the House adjudge it so.

While one is speaking,Ibid. Vid. Town. 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. Agreed for a 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. Ordered upon the Que­stion,Ibid. 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, who first stands up to speak,Co. 12.116. Smith's Common­wealth 84. he shall shall first speak, without any Dif­ference of Persons.

If in Debate Words be let fall, that give Offence, Exceptions should 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 resuse to do, or the House be not satisfy'd with such Ex­planation, then he is to withdraw.

43 Eliz. 1601.Towns. Coll 199. Vide Sir S. d'Ewes Jour. 630. Col. 2. It was said by Secretary Cecil, 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. [Page 282]yet whatsoever is spoken in the House, is subject to the Censure of the House.

Febr. 19. 1592.Towns. Coll. Ibid. 35 Eliz. After the Names of the Knights, Citizens and Bur­gesses were read and declared to the Clerk of the Crown, and entered in his Book, they entered into the House.

The House being set,Vide Sir S. d'Ewes Jour. pas. 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, called 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 Queen's Privy-Counsellors.

The Fee for entering his Name into the Serjeant's Book is Two shillings,Town. Coll. 51. the Re­wards to the Door-Keepers, Three shil­lings and Eight-pence, the Fee for re­turning the Indenture, Two shillings.

Febr. 7. 1588.Id. 15. 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, [Page 283]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 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-Council of this Realm.

It was declared in the House in 10 Nov. 1640. 16 Car. 1.Rush. Coll. p. 3. v. 1. fol. 41. that at the naming a Committee, if any Man rise to speak about the same, the Clerk ought not to write down any more Names, whilst the Member standing up, is speaking.

It was the same Day declared in the House,Id. 42. that when a Business was begun and in debate, if any Man rise to speak to a new Business, any Member may, but Mr. Speaker ought to interrupt him.

Whosoever shall go forth of the House in consused Manner, before Mr. Speaker,Id. 44. shall forfeit 10 s. and that the Reporters ought to go first, to take their Places at Conferences. 11 Nov. 1640.

Ordered,Id. 60. that when any Message is to go up to the Lords, none shall go out of [Page 284]the House before the Messenger. 25 Nov. 1640.

Nov. 26.Id. 61 That neither Book nor Glove may give any Man Title or Interest to any Place, if they themselves be not here at Prayers.

Ordered,Id. 83. Dec. 4. 1640. that whoso­ever does not take his Place when he comes into the House, or removes out of his Place to the Disturbance of the House, shall pay 12 d. to be divided between the Serjeant and the Poor: and whosoever speaks so loud in the House, when any Bill or other Matter is reading, as to di­sturb the House, shall pay the like For­sciture.

Dec. 4.Id. 84. 1684. Ordered, that no Bills have their second reading, but between nine and twelve.

Dec. 10.Id. 92. Declared for a constant Rule, that those who give their Votes for the Preservation of the Orders of the House, should stay in; and those who give their Votes otherwise, to the intro­ducing of any new Matter, or any Alte­ration, should go out.

'Tis a Rule of Order,Id. 283. that there ought to be no Heats nor Distempers within the House.

CHAP. XVI. Other Orders of the House.

2 Maij. A Member speaking,Scobel. 32. and his 1610. 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. It was Resolved,Ibid. That eight ingrossed Bills should be read the next Day, half an Hour after Eight. The next Day about that Time, a Mem­ber entering into a long Discourse, De mera Fide, & sola 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. Town-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 in 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. Vide Sir S. d'Ewes Jour. 283. 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 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.Ibid.

When a Motion has been made (and seconded) that Matter must receive a De­termination [Page 287]by the Question, or be laid aside by the general Sense of the House, before another be entertain'd.

28 June 1604. A Motion being made,Ibid. 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 accordingly determine the first Motion in the first Place.

4 Dec. 1640. 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 proprounded,Ibid. any Member may offer his Reasons against that Question in whole, or in part; which [Page 288]may be 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 that 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 [Page 289] Proviso being tendered for Chester, which was twice read, the Question was put for Commitment, in the Affirmative, after which, the Negative was put, which was admitted to be so orderly, because it is no sull Question without the Negative part be put, as well as the Affirmative.

Every Question is to be put first in the Affirmative, and then the Negative:Id. 24. 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, and for reading a Petition, [Page 290]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. Yet 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 Jour. 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. Memorials ut supra. 21 Jac. 25. The House be­ing divided upon a Question about Elec­tion of Members; it was over-ruled by the House, that the No's should 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 [Page 291]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,Id 27. those two of the Tellers, 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 Votes 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 [Page 292]thus—The Question being put (setting down the Words of the Question) it pass'd 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 remembered by the Speaker, of Mr. Mor­ris, Attorncy 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 [Page 293]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, and it be controverted,Ibid. which Question should 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 on to 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 [Page 294]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 the 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, or 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 [Page 295]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 itself: 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, he is to be heard out,Id. 31. Vid. Town. Coll. 205. 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 Hake­avel, 33. ought not to be again brought into Dis­pute.

27 Martij 1604.Ibid. Sir Edward Coke Attorney-General, and Dr. Hone bring a Message from the Lords, desiring a Con­ference about the Case of Sir Francis Godwyn. Vide this Argument at large in the Appen­dix. Upon this Message it was argued, That now the Judgment having pass'd 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 Conference.

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 who first stood up (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 sall into De­bate [Page 297]thereof, such Member is to with­draw.

The Members of the lower House came to the Lords, upon a Conference,Town. Coll. 311. 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, the Lord Keeper,Towns. 95. Vide Sir S. d'Ewes Jour. 585. and the rest of the Lords are to rise from their Places, and to go down to the Bar, and there 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 upper 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 King James his Objec­tion in Sir Francis Goodwyn's Case (3 Apr. 1604.)Memorials 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 [Page 298]our Sentence passed: and then we thought, that in a Matter private to our own House (which by Rules of Or­der might be by us revoked) we might without any Imputation refuse to confer.

Orders and Resolves of the House, taken out of the third Volume of Mr. Rush worth's Collections. Part 1.

2 Apr. 1604.Id. 71. A Rule, that a Question being once made, and carried in the Affir­mative or Negative, cannot be questioned again, but must stand as a Judgment of the House; the Case of Sir Francis Goodwyn, and Sir John Fortescue; See at the End of the House of Commons Pro­ceedings about the Aylesbur-men.

9 Nov. 1640.Id. 38. Ordered, that the gene­ral Order for those that are double re­turned, shall not bind Mr.—now extra Regnum.

10 Nov. 1640.Id. 41. Declared in the House, that at the naming a Committee, if any Man rise to speak about the same, the Clerk ought not to write down any more Names, whilst the Member standing up, is speaking.

Ibid. Id. 42. Declared, that when a Business was begun and in Debate, if any Man rise to speak to a new Business, any Mem­ber [Page 299]may, but Mr. Speaker ought to in­terrupt him.

11 Nov. 1640.Id. 44. That whosoever shall go forth of the House to a Conference in a confused manner, before Mr. Speaker, shall forfeit 10 s. and that the Reporters ought to go first, to take their Places at Conferences.

25 Nov. 1640.Id. 60. Ordered, that when any Message is to go up to the Lords, none shall go out of the House before the Mes­senger.

26 Nov. 1640.Id. 61. That neither Book nor Glove may give any Man Title or Interest to any Place, if they themselves be not here at Prayers.

28 Nov. 1640.Id. 66. Ordered, that if any one be chosen a Member of this House, and his Writ not yet returned, he may notwithstanding be admitted to the Sacra­ment to Morrow, delivering a Ticket of his Name, and the place for which he serves.

4 Dec. 1640.Id. 83. Ordered, that whoso­ever does not take his Place when he comes into the House, or removes out of his Place to the Disturbance of the House, shall pay 12 d. to be divided between the Serjeant and the Poor; and whosoever speaks so loud in the House when any Bill or other Matter is reading, as to di­sturb the House, shall pay the like For­feiture. [Page 300]And it is further ordered, that the Business then in Agitation being end­ed, no new Motion of any new Matters shall be made, without leave of the House.

5 Dec. 1640.Id. 84. Ordered, that no Bills have their second Reading, but between Nine and Twelve.

10 Dec. 1640.Id. 92. Declared for a constant Rule, that those that give their Votes for the Preservation of the Orders of the House, shou'd stay in; and those that give their Votes otherwise, to the intro­ducing of any new Matter, or any Alte­ration, should go out.

8 Sept. 1641.Id. 392. See how far an Order of this House is binding.

In March 1627.Rush. Coll. vol. 1.513. Resolved, that is the ancient and undubitable Right of every Freeman, that he hath a full and abso­lute Property in his Goods and Estate; that no Tax, Tallage, Loan, Benevolen­ces, or other like Charge ought to be commanded, or levied by the King, or any of his Ministers, without common Consent by Act of Parliament.

March 1627.Id. 513. Resolved, that no Free­man ought to be detained, or kept in Prison, or otherwise restrained by the Command of the King or Privy-Council, or any other, unless some Cause of the Commitment, Detainer or Restraint be [Page 301]expressed, for which by Law he ought to be committed, detained, or restrained.

Resolv'd,Id. 513. that the Writ of HabeasCorpus may not be Detain'd, Deny'd, but ought to be granted to every Man that is com­mitted, or detained in Prison, or other­wise restrained, tho' it be by the Com­mand of the King, the Privy-Council, or any other, he praying the same.

Resolved, that if a Freeman be com­mitted, or detained in Prison, or other­wise restrained by Command of the King, the Privy-Council, or any other, no Cause of such Commitment, Detainer, or Restraint being expressed, for which by Law he ought to be committed, detained, or restrained, and the same be returned upon a Habeas Corpus, granted for the said Party, then he ought to be deli­vered or bailed.

2 April 1628. Resolved,Id. 523. that no Free­man ought to be confined by any Com­mand from the King, or Privy-Council, or any other, unless it be by Act of Par­liament, or by other due Course, or War­rant of Law.

King James I. having in 1621.Rapin Vol. 2. No. 54. p. 208.209. for some Words spoken by him in the House, it occasioned a Remonstrance of the Com­mons to the King, (therein) complaining of Breach of Privilege, and asserting their [Page 302]Liberty of Speech and Debate, to be their antient and undoubted Right and Inheri­tance, receiv'd from their Ancestors, &c.

This they sent to the King, by twelve Members, at the Head of whom, they (af­fectedly) set Sir R. Weston, a Privy-Coun­sellor, one whom they conceiv'd had in­cens'd the K. against them, who were re­ceiv'd very roughly, and their Remon­strance rejected.

But some Days after, the K. sends 'em a long Answer in Writing, wherein, towards the Conclusion, he objects against the sti­ling their Privileges,Id. p. 211. their antient and un­doubted Right and Inheritance, and wishes they had said (i. e. commands 'em to ac­knowledge) that their Privileges were derived from the Grace and Permission of him and his Ancestors.

The House, on reading this Answer, plainly perceiv'd the King's Aims, The Com­mons Pro­testation in Vindi­cation of their Pri­vileges. Ibid. p. 211. 212. &c. and knowing the Parl. was going to be proro­gued or dissolv'd, drew up a Protestation, in Order to vindicate their Privileges, viz.

The Commons now assembled in Parl. being justly occasion'd thereunto, concern­ing sundry Liberties, Franchises and Privi­leges of Parliament, amongst others here mentioned, do make this Protestation fol­lowing; That the Liberties, Franchises, Privileges and Jurisdiction of Parlia­ment, are the antient and undoubted [Page 303]Birth-right and Inheritance of the Sub­jects of England; and that the arduous and urgent Affairs concerning the King, the State, and the Defence of the Realm, and of the Church of England, and the Maintenance and making of Laws, and Redress of Mischiefs and Grievances which happen daily within this Realm, are proper Subjects and Matter of Coun­sel and Debate in Parliament: And that in the handling (debating) and proceed­ing in those Businesses, every Member of the House of Parliament hath, and of Right ought to have Freedom of Speech to propound, treat, reason and bring to Conclusion the same; and that the Com­mons in Parliament have like Liberty and Freedom to treat of these Matters in such Order, as in their Judgment shall seem fittest; See of the Terms Parliament and Pre­rogative. Id. p. 213. and that every Member of the said House hath like Freedom from all Impeachment, Imprisonment and Molesta­tion (other than by Censure of the House it self) for or concerning any speaking, reasoning or declaring of any Matter or Matters touching the Parliament or Par­liament-Business; and that if any of the Members be complained of and questioned for any Thing said or done in Parliament, the same is to be shewed to the King, by the Advice and Assent of the Commons as­sembled in Parliament, before the King [Page 304]give Credence to any private Informa­tion.

But the K. being inform'd of this Pro­testation, call'd a Council, and sending for the Commons Journal, (in Presence of the Judges, &c.) with his own Hands tore it out of the Journal, and in a few Days af­ter dissolved the Parliament; but this did not deter the Commons from insisting on their Claim: And in his Son's Reign it was asserted with a Witness, and is now con­firm'd by the Claim of Right, and other Statutes.

Mar. 12. 1700. the House,Journal Dom. Com. on a Report of that Part of the K's Speech which rela­ted to the Hanover Succession, agreed with the Committee in these Resolves, viz.

1. That all Things relating to the well governing of this Kingdom, which are pro­perly cognizable in the P. Council, shall be transacted there; and all Resolutions taken thereupon, shall be sign'd by the P. C.

2. That no Person whatsoever that is not a Native of England, Scotland or Ireland, or of the Dominions thereunto belonging, or who is not born of English Parents be­yond the Seas (altho such Person be natu­raliz'd or made a Denizen) shall be capable to be of the P. C. or a Member of either H. of P. or to enjoy any Office of Place or Trust either Civil or Military.P. Council.

3. That no such Person, &c. shall be ca­pable of any Grant of Lands, Tenements or Hereditaments from the Crown to him­self or any other in Trust for him.

4. That upon the further Limitation of the Crown, in Case the same shall come to any Person not being a Native of this Kingdom of England, this Nation be not oblig'd to engage in any War for the De­fence of any Dominions or Territories not belonging to the Crown of England, with­out the Consent of Parliament.

5. That whoever shall hereafter come to the Possession of this Crown, shall join in Communion with the Church by Law es­tablish'd.

6. That no Pardon shall be pleaded to any Impeachment in Parliament.

7. That no Person who shall hereafter come to the Possession of this Crown, shall go out of the Dominions of England, Scot­land or Ireland, without Consent of Parl.

8. That no Person who has any Office under the King, Note. or receives a Pension from the Crown, shall be capable of serving as a Member of the House of Commons.

With divers other Resolves, for better securing the Rights and Liberties of the People, on which the Stat. 12. and 13. W. 3. c. 2. was made.

CHAP. XVII. Passing of Bills.See for this a MS. Discourse penes W. Bohun. Journal Dom. Com.

ON the 27th of July 1660, it was repre­sented to King Charles the Second, That by the constant Course of Parlia­ment, they have used to receive Acts of Grace, and such Bills as concern the Re­dress of Grievances, and Confirmation of the Subjects Liberties, before they pre­sent Bills of Aid or Supply; but now in Confidence of His Majesty, &c, they tender a Money-Bill, &c. i. e. before a Redress of Grievances.

All Bills take effect and work from the Beginning of the Parliament or Sessi­on,Hob. 111.33. H. 6.18. Bro. tit. Parl. 86. tit. Relation. 35. Plow. 79. Town. Col. 209. except it be otherwise ordained by the Act itself.

43 Eliz. 1601. while there were di­vers Disputes about a Bill, Mr. Fleming the Queen's 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 22.115. 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 al­ways sent in Parchment fairly ingrossed.

Publick Bills are in due Course to be preferred in Reading and Passing before Private: And of Publick,Ibid. Col. 12.116. 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.Town. Col. 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,Ibid. 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 [Page 308]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.

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 Pause, 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, The 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 [Page 309]the Reading of his Breviat, which is fi­led to the Bill.

Sometimes reading the Bill it self,Hakewel 137. Vido Scobel 42. es­pecially upon the Passage of a Bill, when it hath been much alter'd by the Com­mitees, so that thereby it differeth very much from the Breviat.

When he hath open'd the Effect of the Bill, he declareth to the House,Id. 138. 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 Lords House, and one below:Id. 138. Vid. To [...]. Col. 29, 44, 126. Vide Sir Simon d'Ewes Jour. 91. Col. 2. 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. Hakewel Ibid.

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

All Men of Law know, that a Bill,Town. Cal. 238. which is only expository, to expound the Common Law, doth enact nothing, nei­ther is any Proviso good therein.

No Knight,Col. 12.116. Citizen 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 too 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, [Page 311]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.

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

It is likewise done sometimes,Hakewell 142 when the House lacketh other Businesses where­in to employ 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. Q. the D. of Monmouth's Attainder.

A Bill was read the fourth Time,Sir Simon d'Ewes Jour. 90. Co. 1. be­fore it pass'd 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 preferr'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 pause a while, expecting whether any [Page 313]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 (Matter or) 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 the Bill should not be commit­ted: for it were to End further delay in 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 [Page 314]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 [Page 315]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. Town. 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; and then a Man may speak as often as the Bill is read.Hak. 148. 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. 250. 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.Ibid.

So ought likewise such Bills as come from the Lords to have Titles endorsed [Page 317]upon the back of the Bill, 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 a third Time, for the Passage thereof.

For the most part the Speaker putteth not any one Bill to the Passage by itself alone,Id. 153. but stayeth till there be divers Bills ready engross'd 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 shou'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 Bill,Ibid. the Clerk ought to make a Re­membrance thereof in his Journal; if otherwise, then his Remembrance must be accordingly made.Breck Abr. f. Edit. 119 n. 4.

Upon the Bill thus passed (if it be originally exhibited in the House of Com­mons) [Page 319]the Clerk ought to write within the Bill on the top toward the right Hand, (Soit baille aux Seigneurs.) Let it be deliver'd to the Lords.

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. i. e. To this Bill the Com­mons have assented.

19 Dec. 1584.Sir Simon d'Ewes Jour. 344. Col. 2. 27 Eliz. 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 In­dorsinents 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 observ'd 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 [Page 320]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 receiv'd the second Time.

In the Time of the Reading of a Bill,Ibid. the House should not be interrupted with any other Business; and yet in 1. Eliz. the House adjourn'd itself 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, &c. in the House.

When a Bill is thrice read,Id. 159. and pass'd 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,Id. 175. as five or six, or therabouts, 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 pleased to give special Direction therein.

The Order which hath usually been ob­served in ranking them, is, First,Id. 176. To place those 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 these to be marshalled 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,Ibid. with a special Recom­mendation thereof: 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 lieth in Order, he 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 Serjants at Law, or by two Doctors of the Civil Law, being Masters of the Chancery, and Attendants in the Ʋpper House, accompanied sometimes with the Clerk of the Crown, an Attendant there.

Bills of greater Moment are usually sent down by some of the Judges Assistants there,Id. 178. 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 departeth, with three Congies. When they are out of the House, the Speaker [Page 323]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 called for.

When Bills are thus passed 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 deferred 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'Ewe's 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 Queen's Con­sent is not required for the passing of it, but as it is implied in 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 [Page 324]it comes at last to be thus expedited. To all other Bills either Private or Pub­lick, the Queen's express Consent, though in different Words, is always requisite.

February 9.Id. 127. 1597. 39. Eliz. Her Majesty gave her Royal Assent to twenty four publick Acts, and nineteen private; and refused forty eight, which had passed both Houses.

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

If a private Bill, allowed by the King, the Answer is, Soit fait come il est desire; i. e. Be it done as is desired.

If a publick Bill, which the King for­bears to allow, Le Roy se avisera; i. e. The King will consider.

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

To the General Pardon; Towns. Col. 13.49. Sir Simon d'Ewe's Jour. 467. Gol. 2. The Assent is thus, Les Prelates, Seigneurs, & Commons encest Parliament assembles an nom de toutes vous autres Subjets remercient tres humble­ment vostre Majestie, & 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 [Page 325]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 field,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, though 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 tendered, the Speaker may refuse it.

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

An Act was read,Towns. c. 187. to which no Man offered to speak. Whereupon Mr. Speaker stood up, and said, That if no Man speak, it must be ingrossed, i. e. Silence gives Con­sent.

It is the usual Rule of the Law,Towns. Col. 134. That where the Numbers of the Affirmative and Negative are equal, Semper pre­sumetur pro negante, The Negatives by Custom are to carry it; i. e. That the for­mer Law is not to be changed.

When Votes are digested into a Bill,Scobel, 45. and that comes to be read, or passed, it [Page 326]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, before it can 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.Ibid.

When a Bill has been read the second Time, and opened, 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 any more than once that Day, and then he may speak as often as it is read.Id. 58.

23 Junii, 1604. It was agreed for a Rule, If a Bill be continue in Speech from Day to Day, one may not speak twice to the Matter of the same Bill.

Note.His. Refor Vol. I. p. 144. A Bill was read in the House of Lords four Times. Quere, if in one Day?

CHAP. XVIII. Concerning Committees.

A Committee of either House ought not by Law to publish their own Refults,Rush. Part. 3. Vol. 2. p. 74. neither are their Conclu­sions of any Force without the Confirma­tion of the House, which hath the same Power of controuling them, as if the Matter had never been debated.

Committees are such as either the Lords in the Higher House, Sir Tho. Smyth's Common-Wealth, 75. or Commons 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 advantageous to the King and the House;Rush. Col. 557. for that Way leads most to the Truth. And it is a more free and open Way; 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'Ewe's 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 1641.2 Nalson 319. In the Afternoon, it being a considerabe 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 signify to them that the House is sitting, that the Chair-Man shall immedi­ately come away to attend the Service of the House.

35 Eliz. 1592.Towns. Col. 61. Sir Simon d'Ewe's Jour. 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 joined unto them for the same Bill; but for any other there may.

Eodem. Id. 198. Vid. Sir S. d'Ewe's Jour. 630. Col. 1. Sir Walter Raleigh speaking at a Committee, Sir Edward Hobby told him, He should speak standing, that the [Page 329]House might hear him. To which Sir Walter Rawleigh replyed, That bing a Committee, he might speak sitting or stand­ing.

Eodem. It is a Rule in the House,Id. 208. Vid. Sir. S. d'Ewe's Jour. 634. Col. 2. That they, who have given their Voice against the Body of the Bill, cannot be Committees. And it was said by Mr. Wiseman, That by committing of a Bill, the House allowed of the Body thereof, though they disallow of some Imperfections 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. Resolved upon the Question,Towns. 208. Sir Simon d'Ewe's Jour. 135. Col. 1. If any Committee speak against a Bill at the Commitment, he may speak again at the Ingrosing thereof in the House, and have his free Voice.

11 Nov. 1601. Ordered,Memorials, 60, 61. Vid. Towns. Col. 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 [Page 330]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. Col. 138. as well as in the Ʋpper House, after any Bill is com­mitted upon the second Reading, it may be delivered indifferently to any of the said Committees.

No Proviso or Clauses are to be ten­dered to a Bill upon the 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 tendered, be offered 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 [Page 331]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. Declared for Rule,Ibid. 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 Ordered 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 en­gaged 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, Ordered, 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 ordered other­wise in some Cases,) but five may ad­journ.

In some Cases the House hath ordered a Committee to withdraw into the Com­mittee-Chamber presently,Ibid. and to prepare 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 his Vote unless he be named to be of the Committee.

35 Eliz. 1592. Two or three stood up to speak,Sir Simon d'Ewe's Jour. 493. Col. 2. 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 then to consider the same by Parts.

The Preamble,Id. 50. if any be, is usually con­sidered after the other Parts of the Bill; because upon Consideration of the Body of the Bill, such Alterations may therein [Page 333]be made, as may also occasion the Altera­tion of the Preamble; which will be best done last.

The Committee may not raze, inter­line,Ibid. or blot the Bill itself; but must in a Paper by itself 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 Junii, 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 Amendments by themselves. Which is a single Precedent used only in a Case of great Weight.

In the Journal, 4 Junii, 1607.Ibid. the Entry is, When a Vote is once passed at a Committee, the same may not be altered, but by the House. Every Question upon the Voices of the Committee bindeth, and [Page 334]cannot be altered 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,Id. 51. then he of the Members of the Committee (which is commonly the Chair-Man) who is best accquainted 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 Martii, Ibid. 1606. It was ordered, That every Committee, when they proceed to the Amendment of any Billcommitted 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 ingrossed, which are to take Place, and publick Bills before private.

The Reporter must first acquaint the House,Id. 52. Hakewell, 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 [Page 335]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,Id. 53. as well to what is omitted out of the Bill by the Committee, as to what is amended.

Amendments in Bills ought to be writ in Paper, not in Parchment, Sir Simon d'Ewe's, Jour. 573, 574. Scobel, 53. and without any Indorsement.

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

Junii 1607. Agreed for a Rule,Id. 39. 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 Julii, Id. 1641. 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'd 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. XIX. 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 thereon, for the House; which may [Page 337]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, should 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 Counsel, or assign them on either Part, to send for (Persons, Paper, and) 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) should 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 Chair-Man 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 Obeisance is only twice in the Com­mittee, thrice in the House. If the Num­ber be equal, the Chair-Man hath the [Page 339]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 called to the Chair, (or at the next Sitting of the House, if be then adjourned,) 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 asked, 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 called to the Chair for that Purpose.

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

4 Junii, Ibid. 1607. Agreed for a Rule, That every Question upon the Voices of a Committee bindeth, and cannot be altered 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 Maii, Id. 36. 22 Jac. 1. 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 or­dered the Serjant at Arms to send for them.

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

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 Martii, Id. 36. 21 Jac. 1. 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 should attend the Committee.

The Commons, Rush. Col. 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 locked, 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. XX. Of 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 Privileges and Advancement of Trade.

In Parliament there have usually been five Standing Committees appointed in the Beginning of the Parliament, Scobel, 9. and re­maining [Page 342]during all the Session; other Com­mittees are made occasionally, and dis­solved after the Business committed to them is reported.

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

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 Resolutions 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 should come to it, to have Voices, as in Nov. 1640. Sometimes a Grand Com­mittee [Page 343]of the whole House, as 21 Jac. 1.

The Committee for Privileges 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 doth take his Place.

This Committee is constituted of parti­cular Numbers named by the House.Ibid.

21 Jac. 1.Ibid. Upon naming a Committee for Privileges and Elections, a Motion was made, That all that come should 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 passed in the Nega­tive: Another being put, Whether the Per­sons nominated only should be of the Commit­tee, it was resolved in the Affirmative.

In the Journal, 26 February, Id. 11. 1600. 42 Eliz. the Power anciently given to this Committee, is to examine and make Report of all Cases touching Elec­tions and Returns, and all Cases for Privileges as may fall out, during the Parliament. But in other Parliaments, both before and since, that Power doth not appear to have been given them so absolutely; but Matters of Privilege were, upon Information to the House, there heard, and not in a Committee, unless in some [Page 344]special Cases, wherein there was Cause of Examination, or some Preparation of a Charge.

Council may be admitted at that Com­mittee. Id. 11.

The Power of this Committee usually was (as it is enter'd in Nov. 1640.Id. 12.) to ex­amine and consider all Questions which shall grow and arise in that Parliament about Elections, Returns, and other Privileges. Or (as in 1 Jac. 1.) this Committee are to examine all Matters questionable touch­ing Privileges 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 determined,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.Ibid. it was ordered, That all Petitions about Elec­tions and Returns should be preferred to the Committee of Privileges within a Fortnight, from that Day, or else to be silenced for that Session.

16 April. Id. 13. 1640. Ordered, That those who would question Elections, should do it within ten Days by Petition.

6 Nov. 1640. Ordered,Ibid. That all such as will question Elections now returned, 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 returned for several Persons for the same Place) whe­ther all, or any, or which shall sit.Id. 13. The general Rule and Practice hath been in such Case, That neither one nor other shall sit in the House, till it were either decided or ordered by the House.

17 April, 19 Jac. 1. Ordered,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 per­ferred it; and the Party's Name that pre­ferred it be subscribed.

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

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

Sir Francis Popham being returned a Burgess for Chippenham by one Indenture,Id. 14. and another Person returned for the same [Page 346]Place by another Indenture, it was moved he might be admitted into the House, till the Matter were determined. But he was not so admitted; and it was referred to the Committee for Privileges.

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 should stand good, and that he should sit in the House.

22 Martii, Ibid. 21 Jac. 1. Sir John Jack­son and Sir Thomas Beaumont, were both returned for one Burgess's Place for Pon­tefract. Ordered, 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. XXI. A Session of Parliament; and of Prorogations and Adjournments.

WHAT shall make a Session of Par­liament. See 1 Rol. R. 29. Hut­ton 61. 4 Inst. 27. 1 Siderf. 457. 1 Mod. Rep. 151, 155.

If several Bills are passed at one and the same Parliament, none of them shall have Priority of the other; for they are made all in one Day and Instant, and each of them have relation to the first Day of the Parliament, though in several Chap­ters; and shall so be construed, as if they had been all comprehended in one and the same Act of Parliament. Sir W. Jones Rep. 22. Hob. 111. Bro. tit. Parl. 86. and Relat. 35. Plowd. 79.6. Levintz. 9. [Page 348] Crooke says, That though in Fiction of Law a Statute shall have relation to the first Day of the Parlaiment, yet revera nothing is settled; nor is it a perfect Statute till the Parliament is ended. Jones ut sup. 370. Vide cont. ibid. 371.

Hales (Justice) said, That if the Parliament has several Prorogations, and in the second or third Session an Act is made, this shall not have relation to the Day of the Begin­ning of the Parliament, that is to say, to to the first Day of the first Session, but only to the first Day of the same Session in which it is made. Plowd. 79.6.

In a Session of Parliament, though it continue never so many Weeks, yet there is nothing prius aut posterius, but all Things are held and taken as done at one and the same Time. Rush. Vol. I. Page 581.

Jones in the Case of Sir John Elliot, Ibid. p. 687. says, We are Judges what shall be said a Session of Parliament. Sed Quere de hoc.

The Passing of any Bill or Bills,4 Inst. 27. 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 modern.

14 Ed. 3.Ibid. On the first Monday a Grant of, &c. being given to the King, was made a Statute, and pass'd both Houses, and had the Royal Assent thereunto; yet after this the Parliament continued, and divers Acts made, and Petitions grant­ed.

3 Rich. 2 Declared by Act of Parlia­ment, Ibid. 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 revers'd by Act 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 passed both Houses; yet the Parliament continued, and divers Acts passed.

Though Bills passed 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 passed either, or both Houses, and had no Royal Assent to 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, 4 Inst. 28. for expediting of Causes, than a Prorogation.

The King desired the House of Commons not to make a Recess in the Easter Holi­days. Rush Col. 537 This Message for Non-recess was not well pleasing to the House. Sir Ro­bert Philips first resented it, and took Notice, That in 12 & 18 Jac. 1. upon the like Intimation, the House resolved, It [Page 351]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 our Right herein, and to make a Declaration. Sir Edward Coke said, The King makes a Prorogation; but this House Adjourns it­self. The Commission of Adjournment we never read, but say, This House adjourns it self. If the King writes to an Abbot for a Corody, for a Vallet, if it be ex ro­gatu, though the Abbot yeilds to it, it binds not. Therefore I desire that it be en­tered, That this be done ex Rogatu Regis.

And this Matter touching his Majesty's Pleasure about the Recess,Rush. Col. 537. was referred to a Committee, and to consider the Power of the House to adjourn itself.

The Sovereign may adjourn the Par­liament, Sir Simon d'Ewe's Jour. 318. Col. 2. as well as the Parliament ad­journs itself.

When a Parliament is called,4 Inst. 28. Hutton. 61. Vid. Sir Simon d'Ewe's 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. The Petitions of the Com­mons were answered,4 Inst. 28. and a Judgment given in the King's Bench reversed; but no Act passed: Yet without Question it [Page 352]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 pas­sed.

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 April, Hakewel 180. 1604. In the last Session of the first Parliment of K. James the First, the House being desirous to have a Bill forth with passed, declared, That the Royal Assent to one Bill, or more, did not dissolve the Session, without some special Declara­tion of his Majesty's Pleasure to that Purpose.

1 & 2 Phil. & Mar. The King and Queen came of Purpose into the Parlia­ment House, Ibid. 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, Arc. Parl. 93. [...] Jour 7.12. [...]b. and the King signs not a Bill till the last, there all is but one and the same [Page 353]Day; and all shall have relation to the first Day of the first Session; Post. 336. 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.

See Touching the Commencement, Prorogation, and Dissolution of several Parliaments, from the Beginning of Ed­ward III. to the End of Richard III. in Cotton's Records, per Totum; and from the Beginning of Edward VI. in Hale's Parliaments, pag. 107, to 110. and pag. 142, 143, &c.

Upon a Prorogation of the Parlia­ment,On a Pro­rogation, Bills to con­tinue in Statu quo: Burnet's Reforma­tion. Vol. I. pag. 276. Journal Dom. Com. 15 May, 1540. (32 Hen. 8.) to the 25th, a Vote passed, That their Bills should remain in the State they were in; and upon their next Meeting they went on accordingly.

On the 18th of February, 1666, the Parliament was prorogued till the 10th of October, 1667. (the King present.)

Memorandum, That his Majesty, by Pro­clamation,1 Siderf. 338. dated 26 June, 1667. Ann. 19. of his Reign, summon'd his Parliament to meet on the 25th of July following, (by Reason of the War against the Dutch then in Being.) On which Day they met, and ad­journed at his Majesty's Appointment to [Page 354]the 29th of the same Month; on which Day (a Peace being then concluded,) the Parliament was by his Majesty's Appoint­ment prorogued to the 10th of October, as aforesaid.

A Parliament may be summon'd (by Proclamation) to meet before the Day to which they are prorogued.

Anno Dom. 1628.Rush. Vol. I. pag 537. 4 Car. 10 April. Mr. Secretary Cook delivered this Message from the King, That his Majesty desired this House not to make any Recess these Easter-Holidays, that the World may take Notice, how earnest his Majesty and we are for the publick Affairs of Christen­dom; the which, by such a Recess, would receive Interruption. But,

This Message for Non-recess was not well pleasing to the House.

Sir Robert Phillips first resented it;Post. 366. and too Notice, that in 12 & 18 Jac. up­on the like Intimation, the House resolved it was in their Power to adjourn itself, or sit. Hereafter, said he, this may be put upon us by Princes of less Piety. Let a Committee consider hereof, and of our Right herein, and make a Declaration. And accordingly, this Matter, touching his Majesty's Pleasure about the Recess, was referred to a Committee, and to consider the Power of the House to adjourn itself, [Page 355]to the End that it being now yeilded unto, in Obedience to his Majesty, it might not turn to Prejudice in Time to come.

Sir Edward Coke spoke to the same Purpose, and said, I am as tender of the Privileges of this House, as of my Life; They are the Heart-Strings of the Commonwealth. The King makes a Pro­rogation; but this House adjourns itself. The Commission of Adjournment we ne­ver read, but say, this House adjourns itself. If the King write to an Abbot for a Corody for a Valet, if it be ex rogatu, though the Abbot yeilds to it, it binds not. Therefore I desire that it be entered, that this is done ex rogatu Regis.

Hereupon a Message was sent to the King, That the House would give all Ex­pedition to his Majesty's Service, not­withstanding their Purpose of Recess. To which Message his Majesty returned this Answer, That the Motion proceeded from himself, in regard of his Engagement in the Affairs of Christendom, wished them all Alacrity in their Proceedings, and that there be no Recess at all.

A Message from the King by the Speaker,Ibid. pag. 608. same Year. That his Majesty commands for the present they adjourn the House till To-morrow Morning; and that all Com­mittees [Page 356]cease in the mean Time. And the House was accordingly adjourned.

On Wednesday, February 25. the same Year, both Houses, by his Majesty's Command, adjourned themselves until Monday Morning the 2d of March.

Monday, Ibid. pag. 660. and Ap­pendix, pag. 9. 2d of March, the Commons meet, and urged the Speaker to put the Question; who said, I have a Command from the King to adjourn till the 10th of March, and put no Question; endea­vouring to go out of the Chair, was not­withstanding held by some Members (the House foreseeing a Dissolution) till a Protestation was published in the House.

Hereupon the King sent for the Ser­jeant of the House; but he was detained, the Door being locked: Then he sent the Gentleman-Usher of the Lords House, with a Message; and he was refused Ad­mittance, till the said Votes were read. And then in much Confusion the House was adjourned till the 10th of March, ac­cording as it was intimated from his Ma­jesty.

In Mr. Mason (of Lincoln's Inn) his Argument for Sir John Elliot, he said, the second Charge in the Information against him, was the Contempt to the Command of the King's Adjournment, Jac. 18. It was questioned in Parliament, whether [Page 357]the King can adjourn the Parliament (al­though it be without doubt that the King can prorogue it.) And the Judges resolved, That the King may adjourn the House by Commission; and 27 Eliz. it was resolved accordingly.

But it is to be observed and won­dered,Rush. Vol. I. in Ap­pendix. pag. 48. that none was then impeach­ed for moving that Question. And it is to be noted, that they resolved that the Adjournment may be by Com­mission; but did not resolve, that it may be by a verbal Command, signified by an­other; and it derogates not from the King's Prerogative, that he cannot so do, no more than in the Case of 26 H. 8. c. 8. that he can­not grant one Acre of Land by Parol. The King himself may adjourn the House in Person, or under the Great Seal, but not by verbal Message, for none is bound to give Credit to such Message; but when it is under the Great Seal, it is Teste meipso. And if there was no legal Command, then there can be no Contempt in the Disobedience of that Command. In this Case no Contempt appears by the Infor­mation; for the Information is, that the King had Power to adjourn Parliaments. Then put the Case the Command be that they should adjourn themselves; this is no Pursuance of the Power which he is sup­posed [Page 358]to have. The House may be adjourn­ed two Ways, to wit, by the King, i. e. by Writ, or by the House itself; the last is their own voluntary Act, which the King cannot compel; for Voluntas non co­gitur.

Note,Rush. 3 Part, Vol. I. pag. 385. Ʋnder the Number of forty Mem­bers the House of Commons is not re­puted a House, so as to make an Ad­journment.

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

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

If an Ordinance only be entered in the Parliament Roll,Sir William Jones pag. 104. and it hath the Re­putation and Use of an Act of Par­liament, that makes it an Act of Parlia­ment.

If any doubt be conceived upon the Words or Meaning of an Act of Parlia­ment,Rush. Vol. 3. pag. 77, 78. it is good to construe it accord­ing to the Reason of the Common Law.

When Laws shall be altered by any other Authority,Ibid. pag. 653. than that by which they were made, (says King Charles the First, in his Speech at Newark to the Inhabi­tants of Nottingham, 1642.) your Founda­tions are destroyed.

As every Court of Justice hath Laws and Customs for its Directions,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 determined, adjudg­ed, and discussed by the Course of Par­liament, and not by the Civil Law, nor yet by the Commons Laws of this Realm [Page 360]used in more inferior Courts; which was so declared to be secundùm Legem, & C [...]n­suetudinem Parliamenti, concerning 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 Customof 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 Witness. 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 punished (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 armed, against Games, Plays, and strange Shews, &c. during the Parliament, that the Parliament may not [Page 361]be disturbed, or the Members thereof (who are to attend arduous and urgent Business) be not withdrawn.

Dec. 15. 1597. Resolved,Towns. Col. 116. Vide. Sir Simon d'Ewe's Jour. 505. Col. 1. according to the ancient Custom of the House, That all the Members of the same, which did speak against passing of the Bill, should 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, accomanied with all the Mem­bers of the House, and delivered the said Bill to Mr. Speaker.

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

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

The Subsidy of the Clergy was sent in a Roll, according to the usual Acts: Id. 333. To which Sir Edward Hobby took Excep­tions, because it was not sent in a long Skin of Parchment under the Queen's [Page 362]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 Commons. 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 it 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 [Page 363]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 Privilege of this House hath always been, first,Vide Sir Simon d'Ewe's Jour. 483. Col. 2. 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 should stand upon our Privilege, seeing the Burden resteth upon us as the greatest Number; per Francis Bacon, 35 Eliz. 1592.

The Lord Chancellor in Parliament of­fered the Commons a Writ to deliver their Burgess; but they refused it,Petyt's Miscel. Parl. 4. in Margin. 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. [...]3 E. 3. n. Cot. 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 King's [Page 364]Estate, and are ready to aid the same, on­ly in this Device they dare not agree, without Conference with their Countries: Whereby it appeareth, That such Confe­rence is warrantable by the Law and Cus­tom of Parliament.

Mar. 19.Journal, Dom. Com. 1677. It was conceived by the Commons, that according to the antient Course and Method of Transac­tions between the two Houses, when a Bill with Amendments is sent from either House to the other by Messengers of their own, the House that sends them gives no Reasons of their Amendments; but the House to whom it is sent, if they find Cause to disagree, do use to give Reasons for their Dissent to every particular Amend­ment; every one of them is supposed to carry the Weight of its own Reason with it, until it be objected against.

May 28.Ibid. 1678. A Paper of Reasons against a Bill (viz. for wearing Woollen) being printed, and delivered at the Door, was committed, it being irregular for Rea­sons to be printed and published against a publick Bill, before a Petition be exhibit­ed to the House against the Bill.

It is to be observed,4 Inst. 14. though one be cho­sen for one particular County, or Borough, yet when he is return'd, and sits in Par­liamment, he serveth for the whole Realm; [Page 365]for the End of his coming thither (as in the Writ of his Election appeareth) is general, ad faciendum, & consentiendum, &c.

If Offences done in Parliament might have been punished 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 Lit. 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 Non­user can be antiquated or lose his Force,Coke. 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 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, [Page 366]or the like.Ibid. Some Acts are general, and some private, or particular.

All Acts of Parliament relate to the first Day of Parliament,33 H. 6. f. 18. a. 33 H. 8. Brook Parl 86 & Relation 35. 4. Inst. 28. Vide Sir Simon d'Ewe's Jour 550. Col. 1, 2. if it be not otherwise provided by the Act.

The House of Commons is to many Purposes a distinct Court; and therefore is not prorogued or adjourned by the Pro­rogation or Adjournment of the Lords House; but the Speaker, upon the Signi­fication of the King's Pleasure, by the As­sent of the House of Commons, doth say, This Court doth Prorogue or Adjourn it­self. And then it is prorogued or adjourn, and not before.

39 Eliz. 1597.Towns. Col. 101.102. Vide Sir Simon d'Ewe's 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 ought to be there in Person,4 Inst. 28. or by Representation; for as it cannot begin [Page 367]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 ligatum est.

By the Statute of 33 H. 8. c. 21.Ibid. it is declared by Act of Parliament, 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 House of Parlia­ment, is, and ever was, 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, the Lords give their Voices from the puisne Lord seriatim, 4 Inst. 34.35. 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 entered of Re­cord in the Book of the Parliament, upon Pain to lose their Wages.

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

18 Eliz. 1575.Sir Simon d'Ewe's Jour 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, 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 Licence,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, Custom,4 Inst. 50. Rot. Parl. 31 H. 6. n. 27. or Privi­ledge of Parliament.

Cardinal Wolsey coming to the Lower House of Parliament, told them,Hebert's Hen. 8.136. 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.

If 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 punished.

5 Mar. 1557. 4 & 5 Ph. & Mar. For that Christopher Pern affirmed,Ibid. That he is returned a Burgess for Plimpton in Devon, and hath brought no Warrant thereof to the House, nor is returned 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 con­sidered.

13 Eliz. 1571. The House was cal­led;Sir Simon d'Ewe's Jour. 156. Col. 1, 2. and thereupon Edward Lewknor, 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 entered into the House, and had not as then been returned by the Clerk of the Crown; [Page 370]except Garnons, whose Case is, for that he is said to be excommunicated.

9 Jan. 1562.Scobel, 85. For that it seemed to the House, being very full, that there were a greater Number than was returned, there­fore the Names were immediately called over, and as they were called, departed out of the House.

7 Feb. 1588.Ibid. The House was called, and every one answered to his Name, and departed out of the House as they were called.

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 called,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 called over again the same Day, sometimes the Day after, sometimes summon'd, some­times sent for by the Serjeant.

Upon calling the House,Ibid. if the Person be present, he riseth up bare-headed, and answereth; if absent, he is either excused (and so entered, Licentiatur per speciale Servitium, excusatur ex gratiâ, or aegro­tat,) or if none excuse him, he is entered Deficit.

That no Man may sit in the House,Id. 86. Vide Sir Simon d'Ewe's Jeur. passim till he be legally returned, 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 April, 1571.Sir Simon d'Ewe's Jour. 156. Col. 1. 13 Eliz. Thomas Clerk and Anthony Bull, of the Inner Temple, London, Gent. were by this House com­mitted to the Serjeant's Ward, until fur­ther Order should 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. Charles Johuson, Id. 248. Col. 1. of the Inner Temple, Gent. committed to the Serjeant's Ward, till surther 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.Id. 334. Col. 1. Servant to Sir George Cary, 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 yet was committed by Order of the House to the Serjeant's Ward.

30 Nov. Eodem An. Richard Robinson being found to be sitting in the House by the space of two Hours,Ibid. Col. 1. (while several Speeches were made) was stripp'd to his Shirt, and his Pockets searched; and be­ing brought to the Bar, was censured by the House, (after taking the Oaths,) to suf­fer Imprisonment in the Serjeant's 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. Edmund 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 called 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 presenting a Petition in the Name of the Mayor, Aldermen, Burgesses, and other Inhabi­tants of Banbury, was called in, and did acknowledge the Hand to the Petition to [Page 373]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.

Though Freedom of Speech and De­bates,Scobel, 72. be an undoubted Privilege of the House, yet whatsoever is spoken in the House is subject to the Censure of the House.

Though the Committee examine not upon Oath,Id. 17. yet they may punish any that shall testify 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 Praliament, 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 Councils, 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.

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

April, Scobel, 14. 1640. It was ordered by the Commons, That if any sit in that House, that are returned by more Indentures then usual, they should withdraw till the Com­mittee for Privileges had sarther or­dered.

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 coutinued, or determined, as also of former Statutes repealed or discontinued, whether fit to be revived, 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 offered 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 ordered,Hakewel, 135. That every one that preferreth a private Bill should 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 [Page 375]Morning; and usually the Morning is spent in the first Reading of Bills untill the House grow full.

If any publick Bill be tendered,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 Martii, 1606. Mr.Id. 46. Hadley being assigned of a Committee to confer with the Lords, desired to be spared, he being in Opinion against the Matter itself. And it was conceived for a Rule, That no Man was to be imployed in any Matter that had declared himself against it; and the Ques­tion being put, it was resolved Mr. Had­ley was not to be employed.

Presidents reported by Mr. Pryn, 28 Jan. 1666. about the Method of Proceeding upon the Im­peachment of the Lord Mordant.

28 May, 1624. In the Lords Jour­nal,Council to be allowed Impeach­ment. which is entered in haec verba, and al­lows Council in all Cases.

1 & 2 Car. 1. A great Dispute, if the Earl of Bristol, impeached for High Trea­son, should be allowed Council. The Lords then stood on the Order above recited: The King objected to that Order, that the Judges and his Council had not assented thereto; yet the King consented (to avoid being thought rigorous,) that the Earl of [Page 376] Bristol should be allowed Council, so it were not drawn into Precedent.

Council was allowed to Sir George Bynion.

Council allowed to Garney, Lord Mayor of London, impeached for High Crimes and Misdemeanors, 5 & 11 July 1642. and 1 & 2 August.

Sept. 30. 1645. An Impeachment of of the Earl of Strafford.

H. Poulton, &c. for striking Sir Ar­thur Haselrig.

Upon all which the House did ac­quiesce in the Lord Mordant's having Council.

As to his sitting within the Bar: The Lords insisted on it, on the Precedents of 18 Jac. the Bishop of Landass, and 1645. the Lord Stamford.

Seignor Coke, Litt. Rep. 330. Elect. 1 Car. 1. Vis­count de Bucks, & Chivaler de Norsolk, Comment que ill abstein de la maison, un­core il avoit privilege versus la Dame Cleer.

The Privileges of Parliament consist in Three Things:May's Hist. Parl. l. 3. p. 27, Sir Robert Atkin's Po­wer of Par­liaments, 36. Rush. Col. Vol. 1.663. First, as they are a Coun­cil to advise; Secondly, a Court to judge; Thirdly, a Representative Body of the Realm, to make, repeal, or alter Laws.

Upon some Questions propounded to the Judges, Anno 1629. 5 Car. 1. all the Judges agreed, That regularly a Parlia­ment-Man [Page 377]cannot be compelled, out of Parliament, to answer Things done in Par­liament in a parliamentary Course.

Their Rights and Privileges are the Birth­right and Inheritance, not only of them­selves,Rush. Col. Vol. 3. p. 1. 458. but of the whole Kingdom, where­in every Subject is interested.

The Violating of the Privileges of Par­liament,Rush. Col. Vol. 3. p. 1. 475. Rush. Col. Vol. 1. p. 537. is the Overthrow of Parliament.

The Privileges of the House, says Sir Edward Cook, are the Heart-Strings of the Commonwealth; and therefore if the King desires a Nonrecess, I desire that this may be enter'd, That it is done ex rogatu Regis.

The King (viz. Charles II.Journ. of House of Commons.) in his Letter to the King of Spain, declares, That the Murder of his Father was not the Act of the Parliament or Kingdom of England, but of a little Company in the Kingdom, 23 Aug. 1660.

Expulsion from the House for Words.

Thursday, in the Morning, 27 May, Diurnal Occurren­ces of Par­liament, from Nov. 3. 1640. to Nov. 3. 1641. p. 11 [...] 1641. Mr. Tayler, a Barrister, and Bur­gess for Old Windsor, was brought upon his Knees in the House of Commons, for speaking some Words in Disparagement of the whole House, about the Earl of Straf­ford's Death, saying, They had commit­ted Murder with the Sword of Justice; [Page 378]and that he would not for a World have so much Blood lie on his Couscience, as did on theirs, for that Sentence. Which Words being proved against him by the Mayor of Windsor, (to whom he spoke them,) and some others, he was thereupon ex­pelled the House, and voted uncapable of ever being a Parliament Man, committed to the Tower during Pleasure; to be car­ried down to Windsor, there to make Re­cantation for those Words; and to return back to the House of Commons, to re­ceive further Sentence: And it was or­dered, That a Writ should presently issue out for a new Election is his room.

The 2d of June he petitioned to be restored upon his Submission:Id. p. 116. Id. the where. Rush. Col. part 3. vol. 1. fo. 278, & 280. But his Petition would not be hearkened unto.

A Member sent to the Tower, for disco­vering what was said in the House in a former Parliament.

Mr. Francis Nevill, Rush. Col. part 3. vol. 1. fo. 169. of Yorkshire, a Member of the House, was, February 4. 1640. 16 Car. 1. questioned for Breach of Privileges in the precedent Parliament, which met 13 Apr. 1640. by discover­ing to the King and Council what Words some Members did let fall in their Debate in that House. Whereupon Mr. Bellasis, Knight for Yorkshire, and Sir John Ho­tham, [Page 379]were committed by the Council-Board. And Mr. Nevill being brought to the Bar, was by the House committed to the Tower of London; and Sir William Savill, touching the same Matter, was ordered to be sent for in Custody.

CHAP. XXIII. Privilege of Parliament.

THE Privilege of Tenants in An­cient Demense,Sir R. At­kin's Argu­ment 18. Vide Coke 9 Rep. in Pref. must be as ancient as their Tenure and Service; for their Pri­vilege 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 returned 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 Privilege of Parliament,Id. 42. Hakewel 62. not only for his Servants, but for his Horses, &c. or o­ther Goods distrainable.

The Privilege 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 the Time.

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

He that doth arrest any Member of either House during the Session of Parlia­ment,Hakew. 62. Vide Dyer. 60. shall be imprisoned 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 of 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 privileged; so that they shall not be taken, or arrested by any Officer, [Page 381]if it be not in Case of Treason or Felony.

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

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

No Minister of the Parliament, during forty Days before,St. 3 Ed. 4. in Ireland. and forty Days after the Parliament finished, shall be implead­ed, vexed, or troubled, by no Means.

That every Minister, as well Lords Proctors, as Commons,Ibid. 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, lour personal Attendance est cy necessary al Parliament, Dyer, 60. pl. 19. que ils ne doient pur ascun 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 eslie 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'aseun 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 R [...]ya [Page 382]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, for 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 privileged 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 Privilege 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, que intant que le Roy, Ibid. & tout son Realm ad un Intrest 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 pluis haut [Page 383]Court, & ad plusors Privileges que ascun auter Court del Realm; Ibid. Crompt. 7. b. 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 Privileges than any Court of the Realm; for which it seems that in every Case, without any Excep­tion, every Burgess is privileged when Arrest is only at the Suit of the Subject.

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

Though the Parliament do err in the Grant of a Writ of Privilege, yet it is not reversible in another Court.

Fuit dit per Dyer, que si home soit condemne en Debt on Trespass, Moor. s. 57, n. 163. & est esl en un des Burgesses ou Chivalers del Parliament, & puis soit prise en Execu­tion, il ne poet aver le Privilege del Par­liament; & issint fuit tenus per les Sages del Ley en le Case d'un Ferrers en temps le Roy H. 8.Crompton's Jur. p. 7. 8, 9, 10, 11. 34 11. 8. & coment que le privilege à ceo temps suit à luy allowe, ceo fuit mi­uns juste. Sed vide Boliun's Collection and post contra.

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 [Page 384]Parliament, and afterwads is taken in Execution, he cannot have the Privilege of Parliament; and so it was held by the Sages of the Law, in the Case of one Ferrers, Petyt's Mi'cel. Farl. p. 1. &c. in the Time of King Henry the Eighth; and though the Privilege at that Time was allowed him, yet it was un­just.

Hill & Stukely les Viscounts de Lon­dres fueront commit al Tower pour lour Coutems; 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, Eitzler­berts Case. Moor, fol. 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 Privilege of the House.

Vide Fitz-Gerald's, Case, Anno 1640.Post 393. in Ireland. Vide 39 Hen. 6. Walter Clerk's 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 Privilege 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 Plantiff: For A might render himself; and let it be at their Peril, if they will arrest him.

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

Bogo de Clare, and the Prior of Trinity, Ibid. Townso. Col. 255. Sir Simon d'Ewe's Jour. 655. Col. 1 flys he was fi­ned 20000 Marks 4 iust. 24. for serving a Citation on the Earl of Corn­wall in the Time of the Parliament, com­mitted to the Tower; and Bogo, at whose Procurement it was done, fined in two thousand Marks to the King, and a thou­sand Pounds to be paid to the Earl.

And yet the serving of the said Cita­tion did not arrest or restrain his Body; [Page 386]and the same Privilege holdeth in Case of Subpoena, or other Process, out of any Court of Equity.

Rex mandavit Justiciariis suis ad Assisas, Ibid. &c. quod super sedeant captioni corundem, 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 Sir Simon d'Ewe's Jour. 435. Col. 1. Ibid. Scobol. 110. Vid. Sir Simon d'Ewe's Jour. 249. Col. 2. nor Subpoena.

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

22 Febr. 6 Ed. 6. Ordered, If any Member require Privilege for himself or his Servant, upon Declaration thereof to the Speaker, he shall have a War­rant sigu'd by the Speaker to obtain the Writ.

22 Martii, Scobel, 110. 18 Jac. 1. It was resolved, That no Protection under any Man's Hand of this House, is good.

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

27 Eliz. One Kyrl having caused a Subpoena out of the Star-Chamber to be served on a Member of the House of Commons, and for want of Appearance,Id. 90. Vid. Towns. Col. 213. Sir Simon d'Ewe's Jour. 438. Col. 1, 2. 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 Maii, 1604.Scobel, 90 The Serjant was sent to attach the Body of one who served a Subpoena on the Person of Sir Robert Needham, a Member.

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

14 Maii, 19 Jac. 1.Id. 91. 1. 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 Privilege of this House.

4 Maii, 1607.Ibid. A Subpoena out of the Exchequer being served on Sir R. Paw­let, a Member, the House granted Privi­lege, and ordered 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 [Page 388]Lord Chief Baron, That no further Pro­cess do issue against the said Sir R. Paw­let.

3 Dec. 19.Ibid. Jac. 1 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 Privilege; and Napper, who served the Subpoena, was commit­ted.

39 Eliz. Mr. Combs and Mr. Henry Powle, Towns. Col. 109. Vid. Sir Simon d'Ewe's 546. Col. 2. Members of this House, being served with a Subpoena ad testificandum, by Mrs. Ann Wye, the Serjeant of the House was ordered 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 testifi­candum 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'Ewe's Jour. 651. Col. 1. Id. 257. 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. And because Christopher Kennel, who served it, professed Ignorance, he was only ad­juged to three Days Imprisonment in the Custody of the Serjeant, and to pay his Fees.

The same Order with William Macker­less, Ibid. Vid. Sir Simon d'Ewe's Jour. 656. who served a Subpoena on Mr. Pem­berton, a Member, at the Suit of one Mackerness.

44 Eliz. 1601. Mr. Philips, Col. 1, 2. Sir Simon d'Ewe's Jour. 655. Col. 1, 2. 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 should be sent for by the Serjeant.

Vide plus de hi Sir Simon d'Ewe's 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 April, 1593. The Serjeant at Mace, Id. 921 Vide Sir Simon d'Ewe's Jour. 519. who arrested Mr. Neal, a Member, upon on 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 ordered to deli­ver them over to the Lieutenant of the Tower.

13 Maii, 1607.Ibid. Nicholas Allen an Attorney, and Palmer, at whose Suit Mr. Martin, a Member, was Out-law'd; or­dered 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, Ibid. a Member, the House ordered to have Privilege, 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, Id. 93. for Non-Appearance, it was ordered, That if the Issues were not discharged before that Night, the Parties deliquent to be brought next Day to the Bar by the Serjeant.

14 Maii, Ibid. 1576. 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 privileged; and the Party that gave the Warning, was summoned to appear at the Bar next Morning.

21 Febr. 1588.Id. 94. Vide Sir Simon d'Ewe's Jour. 436. Col. 1, 2. Ordered, That those Members of the House who have Occasion of Privilege (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 Martii, Ibid. 18 Jac. 1. 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 appeared to be in such [Page 391]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 entred in the Journal-Book; and that it belongeth to the Clerk to write the the same: It was thereupon Resolved, That the former Course of writing Let­ters to Justices of Assize should be held according to former Precedents.

10 Junii, 1607. Sir Robert Johnson, Id. 95. a Member of this House, moved 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 Privilege.) The Privilege formerly granted was affirmed upon this Reason, That no Man should have any Thing to withdraw him from his Service in the House. The like 14 Feb. 18 Jac. 1.

The Privilege of the House is so much insisted on, that it hath been a Question,Ibid. Whether any Member of the House could consent, that himself might be sued, during the Session; because the Privilege is not so much the Person's, as the House's: 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 [Page 392]of the whole House, as a Breach of the Privilege of the House.

3 Junii, Ibid. 1607. 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 should give Leave for a Breach of Privilege; and it was resolved, The House might give Leave.

7 Maii, Id. 96. 1607. Sir Thomas Bigg and Sir Thomas Love being returned upon an Attaint in the King's Bench, it being moved, That in this Case they ought to have Privilege, it was so ordered; and the Serjeant sent with his Mace to de­liver the Pleasure of the House to the Se­condary, the Court sitting.

22 Nov. 1597.Ibid. Vide Sir Simon d'Ewe's Jour. 560. Col. 2. Sir John Tracey, a Member of this House, 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.

April, Scobel, 96. 12 Jac. 1. Sir William Bamp-field was committed by the Lord Chancel­lor for a Contempt after the Writ of Summons, but before the Election. Or­dered, upon the Question, That he shall have his Privilege by Writ of Habeas Corpus.

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

28 Martii, 1542.Herbert's Hen. 8. 539. During this Session of Parliament, some Wrong was offered to their ancient Privileges, 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 called Little Ease, and others to Newgate.

2 Martii, 1592.Scobel, 112, 113. Vide Moor. fo. 340. n. 461. Fitzher­bert's Case. Vide Sir Simon d'Ewe's Jour. 479, 480, 490, Col. 2. Upon a Report from the Committee of Privileges, That one Mr. Fitzherbet was returned a Burgess, and excepted against, because he was al­ledged to be Outlaw'd, and detained upon such Outlawry; the House ordered, That Mr. Speaker should 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 return­ed, That in regard of the ancient Li­berties and Privileges 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 [Page 394]arrested by the Way; which was ap­proved of.

1 Jac. 1.Scobel, 104, 105, 106, 107. Vid. Petyt's Miscel Parl. 222, 123, 124, 125, The first Day of sitting Complaint was made, That Sir Thomas Shirley, chosen a Member of the House, 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 Council in the House at the Bar for Sir Thomas Shirley, and the Warden of the Fleet, it was ordered, That Simson, at whose Suit, and the Serjeant by whom the Arrest was made, should be commit­ted to the Tower. 4 Maii, 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 delivered over to the Lieute­nant of the Tower as the House's Prisoner. [Page 395]8 Maii, The Serjeant was sent with his Mace to the Fleet, the House 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 Maii, The Warden was again sent for, and brought to the Bar; and refusing to deliver up his Prisoner, he was committed to the Place called the Dungeon, or Little Ease in the Tower. 14 Maii, A new Warrant was ordered for a new Writ of Habeas Corpus; and that the Serjeant should go with the Writ; that the Warrant should be brought to the Door of the Fleet by the Lieu­tenant himself, and there the Writ to be delivered 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 returned thither again. 18 Maii, The Warden did deliver Sir Thomas Shirley; and so was not put into the Dungeon. 19 Maii, He attending at the Door, was brought into 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, [Page 396]the Speaker pronounced his Pardon and Discharge, paying ordinary Fees to the Clerk, and to the Serjeant.

Mr. Belgrave, Sir Simon d'Ewe's 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. And Order was en­tered, as the Act of that House. 43 Eliz. 601. That he ought not to be mo­lested in that Manner.

10 Feb. 4 Car. 1.Rush. Col. 653. Vid. Petyt's Miscel. Parl. p. 107. Whilst the House was in Debate, the Warehouse of Mr. Rolls (Merchant and Member of the House then sitting in Parliament) was locked up by a Pursuivant, and himself called from the Committee, and served with a Subpoena. This gave Occasion of smart Debates in the House.Id. 654. After which the Attorney General writ a Letter, That the serving a Subpoena was a Mistake, and prayed a favourable Interpretation. Resolved, That Mr. Rolls,Rosh. Col. 659. a Member of the House, ought to have Privilege of Person and Goods.

16 Feb. 5.Memorials of the Me­thod of Proceed­ings in Par­liament 97. Vid. Sir Simon d'Ewe's Jour. 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 Privilege, notwithstanding Judgment given against him for four hundred Marks.

20 Febr. 18 Eliz. 1575.Ibid. Vide Sir Simon d'Ewe's Jour. 251. Col. 1. 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 Privilege.

16 Dec. 44 Eliz. Anthony Curwen, Ibid. Vid. Sir Simon d'Ewe's Jour. 680. Col. 1. Servant to William Huddleston Esq one of the Knights of Cumberland, being ar­rested upon a Capias ad Satisfaciendum, out of the Common Pleas, for six Pounds Debt, and forty Shillings Damages, and detained in Execution, a Supersedeas was awarded, and he was delivered.

And the House awarded the Officer that arrested him should be discharged,Towns. Col. 326. Vid. Sir Simon d'Ewe's Jour. 680. Col. 1 686. Col. 1. paying his Fees; and that Matthews should pay them, and also his own Fees, and remain three Days in the Serjeant's Custody, for procuring the Arrest.

11 Maii, 19 Jac. 1.Memorials, &c. p. 98. The Under-Sheriff of Middlesex was called to the Bar, for causing Alexander Melling, Servant to the Chancellor of the Dutchy, to be arrested. He denied he knew him to be his Servant. Mr. Speaker let him know the House had ordered him to have Privilege; and there­fore ordereth the Under-Sheriff to dis­charge him.

1 Jac. 1. Sess. 2.Ibid. Sir Edward Sandys moveth a Breach of Privilege by Sir Ro­bert Leigh, a Justice of the Peace, for [Page 398]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, acknowledged his Fault, and was discharged; and so was the Prisoner.

3 Martii, Ibid. 1606. 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. Col. 196, 206, 210, Vide Sir Simon d'Ewe's Jour. 629. Col. 1. Woodal, Servant of Wil­liam Cook Esq a Member of the House, being arrested, and in Prison in Newgate, 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 from his said Keeper, and from his Impri­sonment.

1 Julii, Memorials, 99. 1607. 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 denied 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 House's Pleasure were further known, and till he had discharged the Assumpsit, and paid the Fees.

17 Junii, 1609.Ibid. Upon a Report from the Committee for Privileges, 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 followed it, and Fisher, at whose Suit he was arrested.

4 Junii, 19 Jac. 1. Johnson, Id. 100. a Ser­vant to Sir James Whitlock, a Member of the Commons House, 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 Men's Men than Sir James Whitlock's taken from their Masters Heels in Par­liament Time. This appearing, Lock and Moor were called in to the Bar; and by the Judgment of the House were sen­tenced, First, That at the Bar they should ask Forgiveness the of House, and of Sir James Whitlock, on their Knees. Petyt's Mis­cel. Parl. 118. Se­condly, That they should 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 [Page 400]by Mr. Speaker against them at the Bar upon their Knees.

28 Apr. 22 Jac. 1.Memorials, 100. A Warrant was ordered to be issued by the Speaker for a Writ of Privilege, 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 Privilege 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 Simon d'Ewe's Jour. 642. Col. 2. 643. Col. 1. Vid. Petyt. Miscel. 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 affirm'd to be chosen a Burgess for the Borrough 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 ordered to have Privilege, and to be discharged of his Arrest and Im­prisonment; and the Offenders for three Days committed to the Serjeant, and or­dered [Page 401]to pay such Charges to Boston as the Speaker shall set down, and their Fees.

6 Martii, 1586.Memorials, p. 108, 109. Sir Simon d'Ewe's 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 Question to the House, viz.

First, Whether they would limit a Time certain, or a reasonable Time, to any Member of the House for his Privilege. The House answered, a Convenient Time.

Secondly, Whether Mr. Martin was ar­rested within this reasonable Time. The House answered, Yea.

Thirdly, If White should be punished for arresting Martin. The House an­swered, No. Because the Arrest was twenty Days before the Beginning of the Parliament, and unknown to him, what would be taken for reasonable Time. But the principal Cause why Mr Martin had his Privilege, was, for that White the last Session (mistaken for Meeting) of Parlia­ment, arrested Mr. Martin; and then knowing him to be returned a Burgess for this Honse, 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 Martii, Id. 102. 1606. Complaint was made by Mr. James, a Burgess of Parliament, That his Horse standing at his Inn, was taken by the Post-Master's 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, [Page 402]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 Privilege 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 avowed 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 privileged; and Instance given of a Precedent of the Baron of Walton's Soli­citor, and Huddleston's Solicitor in the Time of Queen Elizabeth. Upon the Question, Finch was privileged, and de­livered 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 concerning Mr. Nicholas Davys, Servant to the then Speaker, as Assignee of the Ward. The Speaker writ a Letter to [Page 404]the Court, to make known, That he was one of his Clerks, and nearest Servants; and that the Privilege was now as war­rantable as in the Time of sitting, and prayed 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 summoned to attend the Execution of a Commission out of the Chancery, writ a Letter to the Commissioners to excuse his Attendance, and that he should not be prejudiced by his Absence.

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

29 Feb. 1575.Id. 113. 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.

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

28 Nov. 1601.Ibid. Towns. Col. 259. Vide Sir Simon d'Ewe's 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 [Page 405]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 Feb. 18 Jac. 1. Mr. Lovel, Memorials, 114, a Mem­ber of the House, informed, That one Darryel threatened his Person, that for a Speech spoken by him in the House, he should 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. 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 returned into the Chancery; and having a Subpoena served upon him at the Suit of the Lady C. pen­dente Parliamento, upon Motion, he had [Page 406]the Privilege of Parliament allowed to him by the Judgment of the whole House of Commons.

43 Eliz. 1601.Towns. Co. 195. Vide Sir Simon d'Ewe's 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 [...] is Hastings his Intreaty, speaking very ear­nestly for him, and upon the Page's Sub­mission upon his Knees at the Bar, he was discharged.

44 Eliz. 1601.Towns. Col. 229. Vid. Sir Simon d'Ewe's Jour. 643 Col. 2. Mr. William Morris, Burgess for Beaumaris, coming on his Way to London, his Man was arrested at Shewsbury. Ordered, That the Bailiff, and he that procured the Arrest, and the Serjeant, be sent for.

44 Eliz. 1601.Towns. Col. 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 should pay the Solicitor's Costs and Damages, and be im­prisoned three Days in the Serjeant's Custody, and to pay the Serjeant attend­ing this House his Fees.

The Parliament shall not give Privilege to any Member contra morem Parliamen­tarium, Rush. Col. 663. to exceed the Bounds and Limits of his Place and Duty. And all agreed, That [Page 407]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.

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

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

Privilege 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 Privilege of Parliament is in the Power of Parliament,Ibid. and is a Restraint to the Proceedings of other inferior Courts; but is no Restraint to the Proceedings of Parliament.

16 Car. 1 Resolved,Rush. 2 vol. 2d Part. 1147. That the Lords voting the propounding and declaring Mat­ter of Supply, before it was moved in the House of Commons, was a Breach of Pri­vilege of the House.

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 Privilege of this House; and that there­fore such Guards ought to be dismissed.

Resolved upon the Question, Id. 743. ‘Ne­mine Contradicente, That the Privi­leges of Parliament were broken by his Majesty's taking Notice of the Bill for suppressing of Soldiers being in agita­tion in both Houses, and not agreed on.’

Resolved upon the Question, Ibid. 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 Privilege of Parliament.’

Resolved upon the Question, Ibid. Nem. Con. 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 Privilege of Parliament.’

Whereas his Majesty,2 Nalson, 823. in his Royal Per­son, the 4th of Jan. 1641. did come to the House of Commons, with a great Multitude of Men, armed in a warlike Manner, with Halberts, 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 there sit­ting, and according to their Duty, in a peaceable and orderly Manner, treating [Page 409]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 the 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 Privileges of Parliament, and inconsistent with the Liberty and Freedom thereof; and therefore the House doth conceive, they could not with Safety of their own Pre­sons, or the Indemnities of the Rights and Privileges of Parliament, sit there any longer, without a full Vindication of so high a Breach of Privilege, and a sufficient Guard wherein they might confide.’

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

But Note (as to Freedom from Suits and Arrests,)Stat. 12, & 13. Wil. 111. that in the Parlia­ment of 12 & 13 William the Third, an Act passed, entitled, An Act for preventing any Inconveniencies that may happen by Privilege of Parlia­ment, Which enacts,

Sect. I. That any Person may pro­secute any Peer of this Realm, or Lord [Page 410]of Parliament, or any of the Knights, Citizens, and Burgess, of the House of Commons for the Time being, or their or any of their menial or other Servants, or any other Person entitled to the Privilege of Parliament in any of the Courts of Re­cord at Westminster, or high Court of Chancery, or Court of Exchequer, or the Dutchy Court of Lancaster, and in the Court of Admiralty; and in all Causes Matrimonal and Testamentary in the Court of Arches, the Prerogative Courts of Canterbury and York, and the Dele­gates, and in all Courts of Appeal, from and after the Dissolution or Prorogation of any Parliament, until a new Parliament shall meet, or the same be reassembled. And from and after any Adjournment of both Houses for above fourteen Days, un­til both Houses shall meet or reassemble. And that the said Courts respectively, shall and may after such Dissolution, Pro­rogation, or Adjournment, proceed to give Judgment, and make final Orders, Decrees, and Sentences, and award Execution there­on, any Privilege of Parliament to the contrary notwithstanding.

Sect. II. Provides against subjecting the Person of any Knight, Citizen, or Bur­gess, or any other intitled to the Privilege of Parliament, to be arrested during the Time of Privilege. Nevertheless allowing [Page 411]the Liberty, that any Person, having Cause Action or Complaint against any Peer of the Realm, or Lord of Parliament, so that after any Dissolution, Prorogation, or Adjournment, as aforesaid, or (and) before any Session of Parliament, or Meeting of both Houses, as aforesaid, shall and may have such Process out of the Courts of King's Bench, Common Pleas, and Ex­chequer, against such Peer or Lord of Par­liament, as he might have had against him out of the Time of Privilege. And if any Person having Cause of Action against any of the said Knights, Citizens, or Bur­gesses, or any other intitled to Privilege, after any such Dissolution, Prorogation, or Adjournment, or before any such Sessions or Meeting of both Houses ut supra; he shall and may prosecute such Knight, Citizen, or Burgess, or other such privi­leged Person, in the said Courts of King's Bench, Common Pleas, or Exchequer, by original Bill and Summons, Attachment and Distress infinite, out of the same Courts, who are respectively impower'd to issue the same against him or them, until the Defendant shall enter a Common Appear­ance, or file Common Bail to the Ac­tion, according to the Course of each Court. And that any Person having Cause of Suit or Complaint, may in the Time aforesaid exhibit any Bill of Complaint [Page 412]against any Peer of the Realm, or Lord of Parliament, or against any Knight, Citi­zen, or Burgess, or other Person so intitled to Privilege, in the Chancery, Exchequer, or Dutchy Court; and proceed thereon by Letter or Subpoena, as usual. And up­on leaving a Copy of the Bill with the Defendant, or at his House or Lodging, or last Place of Abode, may proceed there­on; and for Want of an Appearance or An­swer, or for Non-Performance of any Or­der or Decree, or for Breach thereof, may sequester the real or personal Estate of the Party, as is used and practised where the Defendant is a Peer of the Realm; but shall not arrest or imprison the Body of any of the said Knights, Citizens, or Burgesses, or other privileged Person, during the Continuance of Privilege of Parliament.

Sect. III. That where any Person, by reason of Privilege of Parliament, is stayed or prevented from prosecuting any Suit by him commenced, he shall not be barred by any Statute of Limitation, nor non-suited, dismist, or his Suit discontinued, for want of Prosecution, but shall from Time to Time, on the rising of the Parliament, be at Liberty to proceed to Judgment and Execution.

Sect. IV. That no Action, Suit, Pro­cess, Order, Judgment, Decree, or Pro­ceedings in Law or Equity, against the King's original and immediate Debtor, for Recovery, or obtaining of any Debt or Duty, originally and immediately due or payable to his Majesty, his Heirs, or Suc­cessors, or against any Accomptant, or Person answerable or liable to render an Account to his Majesty, his Heirs, or Successors, for any Part or Branch of their Revenues, or other original and immediate Debt or Duty; or the Execution of any such Process, Order, Judgment, Decree, or Proceedings, shall be impeached, stayed, or delayed, by or under the Colour or Pre­tence of Parliament. Yet so that that the Person of any such Debtor or Accomptant, or Person answerable or liable to account, being a Peer of this Realm, or Lord of Parliament, shall not be liable to be ar­rested or imprisoned, by or upon any such Suit, Process, Order, Judgment, &c. or being a Member of the House of Parlia­ment, shall not, during the Continuance of the Privilege of Parliament, be ar­rested or imprisoned by or upon any such Order, Judgment, Decree, Process, or Pro­ceedings.

Sect. V. Provided, That this Act, or any Thing therein, shall not extend to give any Jurisdiction, Power, or Au­thority, [Page 414]to any Court to hold Plea in any real or mixed Action, in any other Manner than it might have been done before the making of this Act.

Jovis, Bohun's Collection, pag. 27. 13 Feb. 1700. Resolved, That no Member have any Privilege in any Case, where he is only a Trustee.

Resolved, Nem. Cont. That no Peer of the Realm hath any Right to vote in the Election of any Member to serve in Parliament. And,

Declared by the House as a standing Order,Ibid. That no Member have any Privi­lege, except for his Person only, against any Commoner, in any Suit or Proceeding at Law or Equity, for any longer Time than the House shall be actually sitting for the Dispatch of Business in Parliament.

Martii, Ibid. pag. 230. 28 Nov. 1699. Resolved, That no Member of this House, acting as a Publick Officer, hath any Privilege of Parliament, touching any Matter done in Execution of his Office.

APPENDIX. The Report of a Case happening in Parliament in the first Year of King 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 [Page 416]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 sixty Pound the 31st 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 sixtteen Pounds, which Debt was al­so paid; and that (notwithstanding) this the King, by the Advice of his Council 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,N. B. Here the King assumes the Power of judging and deter­mining the [...] of Members Parlia­ment. Sed [...]. 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 the Sheriff to elect one other Knight in his Room; which Writ was executed accord­ingly, and Sir John Fortescue elect­ed.

And at last Day of the Return, to wit, the first Day of the Parliament, both Writs were return'd; the first with the Indenture seal­ed, [Page 417]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 [Page 418]35th of Queen Elizabeth, in the Parliament House, in a Case for one Fitz-Herbert.

Another Precedent, 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 legally 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 Como­rant in Bucks, the Outlawry (no Procla­mation issuing to the County of Bucks) was void by the Statute of the 31st 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 Knight.

Et quomodo constant, 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; and that the In­denture shall be the Return of the She­riff.

It was also said, That the Prece­dents do warrant this Judgment, viz.

1. One Precedent of 39 H. 6. where a Person outlawed was adjudged a suffi­cient Member of Parliament. Another 1 Eliz. and at that Time one Gargrave, who was a Man learned in the Law, was Speaker, and of the Queen's Council.

2. Another was the Case of one Fludd, in the 23d of the Queen, who, being out­lawed, was adjudged, That he should be privileged by Parliament; and at that Time the Lord Chief Justice Popham was Speaker. And,

3. In the 35th of Elizabeth, there were three Precedents, scil. one of Fitz-Her­bert; another of one Killegrew, being out­lawed [Page 420]in fifty two 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 Upper-House,Note, 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 that 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: [Page 422]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 considered of, and digested by the Speaker and Committees,) in three Points, viz.

  • 1. In the Reasons and Motives of their Resolutions.
  • 2. In the Precedents, 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,See Bo­hun's Col. p. 277. Whether the Speaker ought to have his Privilege, 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 [Page 423]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,It seems antiently, to be a Privy Counsel­lor, was in­compatible with being a Member of Parlia­ment or Publick Counsellor. 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, [Page 424]but upon Deliberation, with double Advice, as well with that of his Council, as with that of his Judges.

And in his answering the Precedents,Quere, If the King himself was not here, too over ween­ing. he said, That those were his own proper Records; and to use them against himself was over-great Weenings: But in Pre­cedents, 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 Precedents, 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, Thatan out­lawed Person cannot by the Law be a [Page 425]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 Precedents 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, Plantiff in Debt; and Justice Win­dam for that Purpose recanting his former Opinion, said, That he, upon perusing of his Books, and by Reasons of the Law, was of Opinion with his Compa­nions.

4. As for the Statute of the 31st 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 [Page 426]void until a Judgment, declaring, That there 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 Indorsement 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 apeared 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 Privilege of the Parliament-House; and that all the Precedents vouched by the Commons were after the Parties were Members of the [Page 427]House, and not before they were return­ed.

But notwithstanding these 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 Council, 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 Precedents: 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 [Page 428]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 meddled with the Sheriff's Return of Members of Parliament, being but one half of the Body, the Lords being one, and the principal Part of the Parlia­ment's 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 meddled 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 altered, and enacted to be in Chancery; but yet that did not take away the Jurisdiction of the Parliament, to meddle with the Re­turns [Page 429]of the Members of Parliament; but that remained as it was before. And this was manifest, as well by Reason as by Use: 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 Precedents also do warrant this in­termeddling 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 Chancel­lor, 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 [Page 430]that the Chancellor hath no Power to a­ward a second Writ, nor to meddle with the Return of it; and divers other Prece­dents 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 Thirty fifth of the Queen two.

Whereof one was upon the Return of the Sheriff, that the Party first elected was Lunatick; and thereupon the Parlia­ment 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 Privileges, Customs, Orders, and Returns of their House, they were an entire Body; as the Upper House was for their Privileges, Customs, and Orders, which continual and common Usage 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 Controversy; 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 Chancellor, had directed his 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 Privilege 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 Proclamations never had [Page 432]been made; which Proclamations 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 certify it, but after his Election; which was a Thing unusual, (the Money being paid, and 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 Chancellor only could exa­mine Returns, then upon every Surmise, whether it were true or false, the Chancel­lor 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.

It is found among the Precedents of Queen Elizabeth's Reign,Rush. 3 vol. pag. 591. on whose Times all good Men look with Reve­rence, that She committed one Went­worth, a Member of the House of Com­mons to the Tower, sitting the House, only for proposing, That they might ad­vise the Queen in a Matter which she thought they had nothing to do to meddle in. (Quere, If not in advising her to mar­ry?)

This notorious Infringement of their Liberties and Privileges,See Sir Matthew H [...]'s of Parlia­ment, pag. 206, 216, 217.218, &c. in the latter End of Queen Elizabeth, seems to be what the Commons complained of, and mention in that famed Remonstrance or Declaration of their Privileges, printed and directed to King James the First, in the Beginning of his Reign, viz. Anno Dom. 1604. Wherein they tell that King, That they bore with some Things in the latter Times of Queen Elizabeth, in regard of her Sex and her Age; and not to impeach his Majesty's Succession, under whom they then hoped to have them redressed and rectified. Whereas, on the contrary, in that (very first) Parlia­ment of his Majesty, they found, That the whole Freedom of the Parliament and [Page 433]Realm had been on all Occasions mainly hewed at. As,

That the Freedom of their Persons in Election had been impeached.

The Freedom of their Speech preju­diced by often (open) Reproofs.

That particular Persons, (Members,) who had spoken their Consciences in Matters proposed to the House, noted with Disgrace, &c.

That a Goaler had contemned the De­crees (and Orders) of the House.

Some of the higher Clergy, to write Books against them, even fitting in Par­liament.

The inferior Clergy to inveigh against them in their Pulpits, &c.

After which, they roundly assert, That the Prerogative of Princes may easily,See the Force of a Precedent once fixed in the Crown. 2 Inst 61. Hou [...]shead 1 Tom. pag 135. and do daily grow (and increase.)—But the Privileges of Subjects are for the most Part at an everlasting Stand: They may by good Providence and Care be preserved; but being once lost, are not to be recovered, but with much Disquiet and Disorder. (Vide ibid. plura.)

To conclude this Treatise, as I begun it, give me leave to add, There is nothing ought to be so dear to the Commons of Great Britain as a Free Parliament, that [Page 434]is, a House of Commons every Way free and independent either of the Lords or Ministry, or, &c. Free in their Per­sons; Free in their Estates; Free in their Elections; Free in their Returns; Free in their assembling; Free in their Speechs, Debates, and Determinations; Free to complain of Offenders; Free in their Pro­secutions for Offences; and therein Free from the Fear or Influence of others, how great soever; Free to guard against the Incroachments of arbitrary Power; Free to preserve the Liberties and Properties of the Subject; and yet Free to part with a Share of those Properties, when necessary for the Service of the Publick. Nor can he be justly esteem'd a Representative of the People of Britain, who does not sin­cerely endeavour to defend their just Rights and Liberties against all Invasions what­soever. See further, touching the Rights and Duties of Parliaments, in Rapin's History. Vol. II. Book XXII. especially Page 583, and 595. Sed quae sunt Jura si non Libere Fruantur?

FINIS

Books lately Printed.

MODERN Entries in English: Being, a select Collection of Pleadings in the Courts of King's-Bench, Common-Pleas, and Exchequer, viz. Decla­rations, Pleas in Abatement and in Bar, Replications, Rejoinders, &c. Demurrers, Issues, Verdicts, Judgments, Forms of Continuances, Discontinuances, and other Entries, and of entering Judgments, &c. in all per­sonal Actions; and also all Kinds of Writs, Original and Judicial. Translated from the most authentick Books, but cheifly from Lutwich's, Saunders's Ventris's Salkeld's, and the Modern Reports; and from other Cases lately try'd and adjudg'd, and wherein Writs of Error have been brought and Judgments affirm'd: Together with Readings and Observations on the se­veral Cases in the Reports, as well relating to the Precedents herein, as to all other Cases incident to each particular Title; and the same abridg'd in a methodical Order. To which are added, References to all the other Entries in the Books, with three dis­tinct Tables; one of the Precedents; the second, of the Cases abridg'd; and the third, of the Names of the Cases. By a Gentlman of the Inner-Temple.

The Law of Uses and Trusts, collected and digested in a proper Order from the Reports of adjudged Cases in the Courts of Law and Equity, and other Books of Authority. Together with a Treatise of Dower. To which is added, A compleat Table of all the Matters therein contained. And,

The Law and Practice of Ejectments: Being a com­pendious Treatise of the Common and Statute Law relating thereto. To which is added, Select Prece­dents of Pleas, special Verdicts, Judgments, Execu­tions, and Proceedings in Error; with two distinct Tables to the Whole. The Second Edition, (carefully corrected and revised by the Author.)

The Attorney's Pocket Companion: Or, A Guide to the Practisers of the Law. In two Parts. Being a Translation of Law Proceedings in the Courts of King's-Bench and Common-Pleas: Containing a Col­lection of the common Forms; beginning with the Original, and ending with the Judicial Process. To­gether with an historical, as well as practical Treatise on Ejectment. To which is also added, The Law and Practise of Fines and Recoveies, and several other Precedents; with some Remarks on the Forms of the Habeas Corpora and Jurata now in Use. In two Vols

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