clerical order, and then the title prefixed to the name of the perfon fummoned, was “magiftro;" at other times the major number were justices, laymen, and but two or three clerks, and frequently ferjeants at law; latterly, the clerks were wholly omitted, or very rarely inferted, and that chiefly when they were treafurers, or temporal officers to the king. From hence Mr. Prynne very juftly concludes, that if the king could fummon many or few, and omit fome or all, they could not be an effential part of the houfe of lords. And from thefe confiderations, it feems as clearly to follow, that at the time of eftablishing a parliament, no commoners were fixed counsellors of the crown or houfe of lords; and confequently the repugnant ufage of fummoning the fame. person to attend his duty in two distinct capacities, in the houfe of lords and house of commons, at the fame time, muft have arifen from the continuation of a practice on the part of the crown against the fpirit of the parliamentary institution. And if it were neceffary at any time to fettle this point, it would probably be put an end to, by the crown agreeing to give up the unlimited power of fummoning, as affiftants to the house of lords, any perfons eligible to the house of commons. And, indeed, the prefent fummons of affiftants by writ, feems little more than a matter of form, kept alive for the fake of fome official perquifites. For though writs of fummons iffue to the attorney and folicitor-general (on which there there are fees of office amounting in all to about a guinea), no return is ever made; and yet, like mafters, they attend the house of lords, and have places affigned to them. The eldest fons of Scotch peers have been, by a great number of refolutions, formerly declared incapable of fitting in the houfe of commons; but they are now eligible, except for places in Scotland. Popish recufants, as well before the ftatute as fince, were after the Reformation frequently refolved incapable of a feat. And every perfon chofen, before he can take his feat as a member of the house, must take the oaths of fupremacy, allegiance, and abjuration, and fubfcribe the articles of the protestant religion. in Prifoners for debt. By Jour. Com. v.8. be P. 392. Prisoners in execution for debt have, one inftance, been declared ineligible. the words of the writ, any perfon may chofen, whether "present or absent." Το authorize the refolution before alluded to, these words must have been conftrued as extending only to absence of an indifferent nature, and not to fuch a neceffary and compulsive abfence, as put it out of the power of the representative to execute the truft repofed in him. In two later inftances, however, where this objection was made, the house came to no refolution against their eligibility: and fir M. Hale, in speaking of their privilege from imprisonment, takes no notice of their ineligi bility, Perions in ex ecution. 224 Mar. 1625. 25th Mar. 1690. Ha. Par. 116. 13 Jour. p. 335, bility, which he probably would have done had he thought fuch objection well founded. A perfon in the Eaft Indies at the time of election has, in one inftance, been declared ineligible by a refolution of the house. Certain it is, from frequent inftances which have happened of late years, that this refolution has never been extended to vacate the feat of a perfon going to the Eaft Indies after his election. And the refolution alluded to, feems against the letter of the writ, and probably before a committee, would, at this day, have but little weight. In the Bristol cafe, the abfence of Mr. Cruger, in America, at the election, was not objected to his eligibility. Ambaffadors, minifters, officers in the army or Hale, Parl. 116. navy, or others, being abroad at the time of election, upon national affairs, are clearly eligible. Upon a contrary doctrine, the most meritorious might be excluded from that truft, which of all others they would be the most able to perform, and might best deserve. Ambaffadors. Par. Deb. 1620. Clergy. Jour. Com. 3d Octob. 1553. 3d Feb. 1620. 17th Jan. 1661. 4 Init. 47. There are feveral refolutions in the Journals of the house of commons, by which clergy in holy orders are declared incapable of fitting there as members. The general reafon given. is, that they fit or are capable of fitting in convocation. The continual attendance upon parliament, during a feffion, which is a matter of duty, and cannot be difpenfed with, but by fpecial licence of the house, and an entry thereof in the book of the clerk, feems perfectly 12 fectly inconfiftent with that folemn truft repofed in them, the cure of fouls, and would neceffarily involve them in the breach of those laws which require a conftant refidence and hofpitality upon their livings. The moderation and prudence of the clergy has afforded. but very rare inftances of confidering the queftion. Lately, indeed, it has been tried upon the right of a deacon to be elected, and though lord Coke has laid it down, and there is exifting a refolution of the houfe, that a clergyman of the "lowest order" is ineligible, the committee adjudged fuch deacon to have been duly elected. But if, during the actual exiftence of convocation, and the exercife of its powers, no one, even the lowest in holy orders, could have a feat in the house of commons, as lord Coke tells us; upon what ground of argument can the queftion be determined differently at this day? The form of a convocation ftill exifts, it has never been abolished, and is ftill fummonable by the king's writ. When the clergy was firft taxed by a general affeffment act in the year 1664, the great object of convocation, which was to tax themselves, ceased. From that period, or shortly after, they were juftly allowed the privilege of voting for their church benefices, in the election of those representatives who were to tax them. Thus, what they loft in one way, they gained in another. But if their power of convocation was confined to canonical matters, and taxing the clergy, I do not fee how the abolition or fufpenfion D 4 Int. p. 4. Carew 130, part 26, 2 Col. fufpenfion of convocation can give the clergy a right to a more extenfive, legislation than they had before; and they still continue to tax themselves by reprefentation, like' the rest of the people. If, indeed, the fole business of the houfe of commons was confined to taxation; and it had no legislative authority, but in that particular, the argument in favour of the clergy would ftand on a stronger foundation. In the writs of fummons to the bishops, they were directed to iffue their writs to the arch-deacon and dean, to attend perfonally, and to the chapter to fend two proxies, who were called procuratores cleri. And they were to come as fpiritual affiftants. Many had a notion, that as the clergy had no votes at elections of knights, citizens, and burgeffes, they had a voice in parliament. But lord Coke takes notice of this as a great mistake, and fays, Questionless they never had." This being long before their voting for their benefices, makes the doctrine at this day ftronger against them. And by Carew it appears, that after a fearch of precedents, into the right of the attorney-general to fit as a member, it was reported to the house that Cromwell was the first master of the rolls whọ fat as a member of the houfe of commons, in the 26th of H. 8. for that, till then, the mafters of the rolls were in boly orders, and fo could not be of this house. There |