« PreviousContinue »
hold plea of any thing done upon the land, that it is void and “ coram non judice ;" and that an action of transgressions in that case doth lie, as by the said case it appeareth. And therefore that in that case he can neither fine nor imprison. And therewith agree divers acts of parliament; and so it may be explained, as it was truly intended.
All which I most humbly submit to your majesty's princely judgment.
JOHN SELDEN, ESQ. TO THE LORD VISCOUNT ST. ALBAN.
MY MOST HONOURED LORD, AT
your last going to Gorhambury, you were pleased to have speech with me about some passages of parliament; touching which, I conceived, by your lordship, that I should have had farther direction by a gentleman, to whom you committed some care and consideration of your lordship’s intentions therein. I can only give this account of it, that never was any man more willing or ready to do your lordship service, than myself; and in that you then spake of, I had been most forward to have done whatsoever I had been, by farther direction, used in. But I understood, that your lordship's pleasure that way was changed. Since, my lord, I was advised with, touching the judgments given in the late parliament. For them, if it please your lordship to hear my weak judgment expressed freely to you, I conceive thus.
First, that admitting it were no session, but only a convention, as the proclamation calls it; yet the judgments given in the upper house, if no other reason be against them, are good; for they are given by the lords, or the upper house, by virtue of that ordinary authority, which they have as the supreme court of judicature; which is easily to be conceived, without any relation to the matter of session, which consists only in the passing of acts, or not passing them, with the royal assent. And though no session of the three states together be without such acts so passed; yet every part of the parliament severally did its own acts legally enough to continue, as the acts of other courts of justice are done. And why should any doubts be, but that a judgment out of the King's Bench, or Exchequer-Chamber, reversed there, had been good, although no session? For there was truly a parliament, truly an upper house, which exercised by itself this power of judicature although no session. Yet withal, my lord, I doubt, it will fall out, upon fuller consideration, to be thought a session also. Were it not for the proclamation, I should be clearly of that mind; neither doth the clause, in the act of subsidy, hinder it. For that only prevented the determination of the session at that instant; but did not prevent the being of a session, whensoever the parliament should be dissolved. But because that point was resolved in the proclamation, and also in the commission of dissolution on the 8th of February, I will rest satisfied.
But there are also examples of former times, that may direct us in that point of the judgment, in regard there is store of judgments of parliament, especially under Edward I. and Edward II, in such conventions, as never had, for aught appears, any act passed in them.
Next, my lord, I conceive thus ; that by reason there is no record of those judgments, it may
be justly thought, that they are of no force. For thus it stands. The lower house exhibited the declarations in paper; and the lords, receiving them, proceeded to judgment verbally ; and the notes of their judgments are taken by the clerk, in the journal only; which, as I think, is no record of itself; neither was it ever used as one. Now the record, that in former times was of the judgments and proceedings there, was in this form. The accusation was exhibited in parchment; and being so received, and indorsed, was the first record; and that remained filed among the bills of parliament, it being of itself as the bills in the King's Bench. Then out of this there was a formal judgment, with the accusation entered into that roll, or second record, which the clerk transcribes by ancient use, and sends into the chancery.
But in this case there are none of these : neither doth any thing seem to help to make a record of it, than only this, that the clerk may enter it, now after the parliament; which, I doubt, he cannot. Because, although in other courts the clerks enter all, and make their records after the term ; yet in this parliamentary proceeding it falls out, that the court being dissolved, the clerk cannot be said to have such a relation to the parliament, which is not then at all in being, as the prothonotaries of the courts of Westminster have to their courts, which stand only adjourned. Besides, there cannot be an example found, by which it may appear, that ever any record of the first kind, where the transcript is into the chancery, was made in parliament; but only sitting the house, and in their view. But this I offer to your lordship’s farther consideration, desiring your favourable censure of my fancy herein ; which, with whatsoever ability I may pretend to, shall ever be desirous to serve you, to whom I shall perpetually own myself Your Lordship’s most humble servant,
I N D E X.
Abuse, remembrance of, 388.
letter to earl, 430.
letter to marquis, 368, 444, 448, 449.
place, speech on taking, 243.
case 2 from Edw. 461.
case 5 from Edw. 376.
remembrances of declaration touching the Lord, 349.