caling Parliaments that is as often as there should be ocasion within every year and not otherwise Our government was never originally founded upon such rediculous folly by our wise Ancestars as to intend themselves to be a Free People to make and alter their own lawes for their Government with their kings and he to call them to parliament to that intent and to leave it absolvtely to the kings Will even lawfully or of right by their Fundamental laws to defeat their meeting in Parliament for ever If our Government were so founded and doth so continue our English Crown is of right or by law in no kind restrained limitted or bounded in the exercise of the Regal power unless it please and if the kings shall condescend to consult with Parliaments and agree to some Statutes to limit themselves there is no more done than was by the men of Gotham that made a Hedge for the Coockows These Reasons Sir are not urged to shew any defects in our Government which may or ought to be amended but to prove that our Government was founded upon such certain laws and Customs that the kings never had absolute power but that the power of Parliaments and their certain Meetings were of right and as much a part of our Government as the kings themselves And I think it self evident from the nature and manner of the English Government owned in all Ages to be quallified by laws binding both King and People that the king cannot more dispence with the Laws which limit the times wherein parliaments ought to be holden than with the laws that preserve our lives and estates from being subject to this Will Parliaments are of the Essence of our Government and must have the times of their assembling indispensible and if it be not of right by law that they are to be held within cercain Circles of time as Custom and law have appointed then there 's no necessity in law that they should be held at any time if the king please and by consequence they are none of the Essentials of our Government but the Government may be without them If the kings may of right dispence with the times appointed for holding Parliaments they may break all the bonds of other laws no other power daring to question them all but parliaments deriving their power from them Charles the seventh and Levvis the eleventh of France first subverted the liberty of the French and all their antient Customs and laws by usurping that pretended prerogative of dispensing with the certain times of the meetings of their assembly of Estates by that means they suffered them to meet very seldom and their immediate Successors proceeded to arrogate to themselves more power over those Assemblies untill they have in fact perhaps not in right abolished almost the memory of them and reduced the people to a miserable slavery the people having no other fence of their liberty Dear Sir to deal plainly I believe the opinion that the King might dispence with Parliaments meeting notwithstanding the statutes or prorogue them as long as he pleaseth is built upon that gross vulgar Error That Parliaments are the Creatures of the kings Will because they are summoned by his Writs and dissolved also vvhen he thinks sit I wish our Government were better understood both by our Lords and Commons they ought to know that the Writts of Summons for a Parliament once a year are to be issued by the king in obedience to the laws and if there be occasion for calling them oftener the Writts issue in performance of the kings Trust and Oath to remove by Parliaments the mischiefs that afflict the People The Statute of Provisors 25 Edvv 3. speakes this plainly viz. The Commons pray the King that sith the right of the Crovvn of England and the Lavv of the said Realm is such that upon the mischiefs and dammages vvhich happen to his Realm he ought and is bound by his Oath vvith the accord of his People in Parliament thereof to make remedy and Lavv. This king and people agreed that it was the English Constitution and Kings Duty to Call Parliaments as the Lawes required and if any mischiefes happened he was bound by his Oath then to call them and to joyne in accord with them to remove the mischiefs and dammages before they were dissolved else by the declaration in this law he saved not his Oath by calling them And as the law binds the king upon Oath to send out the summons for parliaments so it provides the very form of the VVrit which must be sent the king must summon them in no other form than the law hath appointed The law hath not trusted the king to adde to leave out or alter one word in the writ of summons an Act of parliament only can vary one tittle of it The law hath also prescribed to parliaments their business in general which are the matters that concern the king the state and the defence of the Realm These are words so large that there seemes to be nothing that concerns the wellfare of king or people which doth not fall under their consultations But Pray Sir observe that 't is not the kings will that impowers your brethren that 's no more than a Command of the law by the king ex Officio that the people do impower such as they elect they are to authorize them as the writ declares to do and consent to what shall by the Common Council of the kingdom be then ordained Ita quod saith the VVrit pro defestu potestatis hujusmodi c. So that for want of such power the foresaid business may not remain undone The Parliament derives not any power from his Majesty but from the first Root of Government the Peoples Choyce according to the laws For that reason Indentures are and ought to be sealed between the People and the Elected and then they are immediately invested with a share of the legislative power for that time which is the greatest and highest power and therefore in its own nature independent every estate having share in the legislative power for the Proportion it hath therein hath its independency of the other two and of its proper right as founded in the fabrick and fram of the policy and government not derived from the grace of the king by grant or Commission I have said too much I doubt against the power of the king to despense with the statutes for yearly parliaments and yet I must adde this one thing more That parliaments are by many statutes as well as by the Common law our highest Court of Judicature before whom comes writts of error And the last appeales in all cases And that Ancient Mirror of Justice tells us that their Judicature was intended to hear and determine the complaints of the wrongfull Acts of the king the Queen and their Children and of those persons against whom the subjects otherwise could not have common Justice now if the king can of right
dispence with the certain appointed sitting of this Judicature he can lawfully say the wrongs that I and my great Ministers too bigg for other Courts shall do to the people shall never be heard or Judged but at my will their complaints shall not be admitted once in 50. years nor till domes day unless I please If our men of the Robe will maintain such a dispensing Power in the king with the statutes in question they must say that the king may by law prevent and defeat the last results of Justice and null the highest Court of Judicature founded on the common law and let them tell me why he may not by the same right and reason despence with the lawes whereby all the inferior Courts of Judicature now fits or adnull the Courts themselves and throw all things into a confused Chaos where the strongest shall injoy every thing Upon these Premises I may dare to conclude That the laws for holding a Parliament every year stand firm and immutable untill an undobted parliament shall repeale them by some express words and that the prorogation can never be reconciled to those lawes or be helped by any power of the kings to despence with them but must be Judged inconsistent with the lawes that are of the essence of our government having actually defeated the execution of them and therefore ought to be holden for nothing and the day appointed for your meeting to be no day for that purpose in the sence of our law Supposing then that I having hitherto rightly concluded the question will be Whether the kings dismission of the parliament without any day set for their return and their continuing so beyond the year be a dissolution Ill tell you Sir the method of my thoughts upon this Question that I might not be couzened with words nor intangled in trifling disputes about them I first consider whether dissolving a Parliament were a term of art in our law and ought to have some peculir sence gained by the use of it in the law But finding it used only in its vuilgar sence I perceived it signified to break off or put an end to a Parliament and all their business and authority so that a dissolution may be made without the king or Lord Chancellors saying you are hereby dissolved The force of the law or custom of England may put an end to a Parliament Of old the finishing the business of the people for which they were called did dissolve them See the ancient Modus tenendi Parliamt The custom was that when all the petitions for relief against grievances were dispacthed proclamation was made demanding if any petition were yet unanswered and if there was none the parliament forth with departed this was the naturall death or dissolution of a parliament but if the king did command the Lords and Commons to depart before they had suffitiently consulted about the state and defence of the king and Kingdom and set up-day for their return that was the voilent death of a Parliament and I doubt a violence to the kings conscience But it was usuall for the kings to dissolve Parliaments either by leave or command given them to depart fixing no day for their return so testify the Antient Rolls of the 37. Ed. 3. n. 38. and 38. Ed. 3. n. 31. 40 Ed. 3. n. 16. 45. Ed. 3. n. 13. 50. t is by force of law that the writ of sumons to Parliament abates or becomes void by the kings naturall death and the Parliament is thereby dissolved Upon the same reason a failer of some circumstance as the naming such a time as the law allowes to which it is adjourned the holding and continuing a parliament if Judged necessary by the law for preserving both the form and substance of the Government I say such a fayler in time onely may by Act of law dissolve a parliament even against the will of the king and if such a failer happens if the king should step out of the form of the law to revive a parliament it would alter the whole Government by owning a power in the king to vest in such as he please the legislative power out of the form of the law In making a parliament the king hath his power from the law to summons and the form wherein only he can exert that power And the Elected have their power from the people by the writ of the law what to do and consent to on their behalf at the time and place then mentioned as the writ says tunc jbidem and these powers must by the law be strictly and punctually persued and nothing less than an Act of parliament can help any defect or failer in persuance of these powers if the Parliament then meet as the law requires if they fayl to be continued in the form of the law then by the Act of law they are dissolved not being able to create to them selves a day or time which will not agree with the returnes to the writ of summons by which their Masters impowred them to consent on their behalf Neither is this a nicety or quirk in law but a form essentialy necessary to preserve our liberties If the representatives trusted for the people to do and consent for them at the time and place mentioned in the lawfull writ after a fayler of continving their trust as the law directs pceede to Act as a parliament they must do it without any appointment or power given them from the people in any form of law and in the appearance and Judgment of the law without any Authoritie and if they might do it after fayler of a legall continuance one year they may do it after 20 years and because they were once commissioned by the people to represent them in one parliament they should therefore make themselves Lords of the people and of their Laws Lives and Liberties for ever and admit whom they please as some have done heretofore into their society and if it should be admitted that any number of men might exercise a share of the legislative power without evidence in law upon record that they were thereunto first sufficiently authorized and therein legally continued it would give a fatall stroak to the Antient English government and all its lawes and liberties Sir from these principles I tell you freely my opinion That the parliament is dissolved having been dismissed or commanded to depart without a day to return within the time that the Laws require a Parliament to be holden and that time also lapsed since their dismission I think it not material in the case what words the Lord Chancellor said when he dismissed them If he said you are prorogued or you are dismissed or you are sent home or you must be gon 't is all one I mind what was really done you were in substance and sence of the words commanded to dissolve your Assembly and you were told that all the business before you was at an end as if it had not
A Seasonable QUESTION AND AN Usefull ANSWER CONTAINED In an Exchange of a LETTER between a Parliament-Man in Cornwell and a Bencher of the Temple London Printed in the Year 1676. as vve can vve shall yeild up to the Kings pleasure all the Lavvs vvhereby the Rights and Inheritances of the King and Subjects ought to be distinguished and determined Truly Sir these are edged Tooles not to be played with I would not come 200 miles to put my Neck in a noose An honest Old Cavalire whispered tother day to me That he supposed this prorogation came from French Counsels not only to prevent the Parliament from stoping in time the French Kings increase of povver at Sea and Land but to lead his Majesty in obscure undifcerned paths to the mount of absolute povver The French knovving too vvell that vvhensoever the English People shall discover their Liberties and Lavvs to be invaded such fires vvill be kindled as they may run avvay in the smoak and vveshall not be able to contest vvith them either the povver of the Sea or the equallity of trade But whosoever advised the prorogation Pray Sir let me know whether it be a Dissolution You may perhaps save me a scurvy winter Journey and Mony in my Pocket and I assure you we are all very poor and I do not expect to be paid for secret serviec I know you can resolve this question as well at least as my Lord Chancellor If it be but a doubtful point I should think I had best stay at home none but an undoubted parliament being able lawfully to deside the case His Majesty out of parliament is no competent Judge for himself in this point and if we should declare our selves to be a parliament legally continued by the Prorogation according to the Kings will though not according to the Lawes I should tremble to be assistant in such a sad doom of England that the meeting of our Parliament and the benefit of our laws are of the kings Grace and not of right to be injoyed only when as he pleaseth Neither should I think such a resolution to be of any authority because we should be parties and Judges and give sentence to continve our selves in power You must not Sir deny me your whole thoughts of this great affair I have come to parliament twice or thrice to provide against the multitude of mischiefs and grievancs that threaten our ruine but did but verifie the proverb That I came ninescore miles to suck a Bull you know we have not been suffeerd to do anything of moment for several Sessions but I shall fool my self more if I should now come 200 miles to sit gravely and prepare my self for the Gallowes when soever the subjects shall demand right against us or the Crown shall descend to any whose interest shall lead him to call in question what we shall do You know Sir you and I were Confessors of old under his Majesties father and narroly escaped being Martyred for the Protestant Religion the Lawes of the land and the Priviledges of Parliaments as we belived we carried as many of those Declarations in our Pockets as we had shillings of his Coyning whilst we fought under his Banner and should not I Sir be an impudent Knave if I should now come and sit in parliament to declare that his majesty may of right take away from his subjects the benefit of their principle fundamental Laws about their meeting in Parliament when and as long as he pleaseth and if he will never suffer a Parliament to sit to claim one of the priviledges we swore to maintain I long for your Opinion Sir upon the whole matter I would neither disobey any lawfull command of his Majesty nor diminish the just English regall Power I would not crop a leaf of any flower of the Crown yet I make as much conscience not to betray my Country or easily yeeld up the Antient lawes and Government of England by parliament to the kings Will to make English freemen tenants at will to the king of their lawes their parliaments their liberties and lives I am resolved to be an honest man and thy faithfull friend and hearty servant The Benchers ANSWER SIR YOu demand my Opinion in a Question of the greatest moment that ever was moved since England was established under civil Goverment the absolute ruin for our age or the safety of all the ancient English liberties and excellent Laws depend upon the right resolving your Question Whether this Parliament be actually Dissovled by the last Prorogation for 15 months He that will clearly answer you ought first to consider whether a prorogation ordered and continued beyond a year can be made to agree with our lawes and statutes concerning holding of parliaments which by the way are the birth-right of English men It seemes you have been told of two statutes which enact That a Parliament shall be holden every year doutbless they in ended those printed statutes of the 4. of Ed 3. Cap. 14. and that of the 36. Ed. 3. Cap. 10. where it is enacted That for maintenance of the statutes and redress of divers mischiefs and grievances vvhich dayly happen a parliament shall be holden every year as an other time vvas ordayned These are most taken notice of because they are printed and were re-inforced by that notable Act of the 16 of the late King which provided effectually for the summoning and electing a parliament every 3 year without the Kings concurent asent if he neglected or refused two years together to summon a parliament according to those statutes of Edvv. 3. And although this parliament hath repealed that statute and taken from the people that excelâ—ent meanes to secure their right of parliaments yet they have left us to the force of the antient laws in the case and in the same Act of repeale 16 Car. 2. they have declared and acknowleged those lawes of Ed. 3 to be still the lawes and statutes of this Realm and they have enacted no clause or article that derogates from them or abates their force Those latter clauses of that Act which seem to be enacting being as my brethren of the robe speak nugatory and insignificant only praying the King not to intermit the holding of parliaments above 3 years at the most but to call them as often as there shall be occasion which in plainer English is an humble motion that he would not neglect his duty to put the laws in execution longer than two years but that he would call parliaments as oft as ocasion did require and that Act was to commence from the end of this parliament what ever was intended by that Act it doth neither weaken the force of those two antient printed statutes nor of any other unprinted for annual parliaments this Act being only affirmative and consistent with the other And I ought to tell you that there are 4 more at least to thesame porpose That of the 1. Ri. 2. number 95. in
been and that you must not assemble again or hold Parliament for above a year then following and you did separate your selves and never held Parliament within the year and this by the act and judgment of the Law hath Dissolved you there hath been a failer of any such act in law as could continue you in the Commission and Authority whereunto the People hath chosen you in the Form that the laws hath prescribed The King declaring under the name of proroguing you that all the 〈◊〉 you had begun should be void and that you should not meet in parliament the next insuing year as the law required I say that declartion of the kings could not in any construction of law be an Act of continuance of your power and commission you had from the people the execution whereof was thereby wholly defeated likewise there was no Act of your own by adjournment of your house to continue you and therefore your Authority was wholly superseded and discontinued I know nothing that can be pretended to prevent your discontinuance but the kings will that you should sit again 3 months after the year expired but his prevention of your sitting for above a year having contrary to the law and his trust first discontinved you his Will cannot give or renew those Parliamentary powers that the people gave you in return of the legall writ The Lord Cooke sayth 3. Part. Instis. Chap. Parl If you sit again you are a severall Parliament from vvhat you vvere if you be a Parliament every distinct session being in lavv a severall Parliament And your former Authorities being Ceased by a failer of continuance you can have none but what the kings will vest in you and I need not tell you that the king cannot chuse for the people their Representatives To me it seemes playn that the king having not continued you nor you continued your selves nor having set or held Parliament for above a year the law hath dissolved you and Judged you for none I have not time to write you all the talks of the Town upon this question some have invented a new fashion prorogation for the king to prorogue without day and call the Parliament again by proclamation but their mouths must be stopped if they be only told That such a practise or use of prorogation hath no foundation in any Statute Custome usage or Reason of Law and the king cannot change the lawes and customes or introduce new I take a prorogation Sine die if any such be made to be as void in law as a writ of summons of a Parliament would be that named no day for their sitting And there can be no pretence of Antiquity for such prorogations the words of Adjornment and Prorogation having been used in differently for the same thing about 400. years if not more They were so taken in the state of 13. E. 4. n. 42. and how long after I cannot find but it would have been a plain contradiction in termes to have said then the Parliament is adjorned Sine die that is it was appointed to meet at another day without a day It s a sign that men are sore pinched when they will assert contradictions rather then submit to truth I ought to tell you one thing more that is said in this case they pretend a president that the king hath prorogued above a year they say that in the great plague in the 7. of Eli. that Parliament was prorogued for a year and three dayes what then say they therefore the king might do it now Such arguers shew themselves pittifull Logitians lack-lerning lavvyers and degenerate English men Is it a logicall arguments to say that what ever any king of England hath once or oftner done may be lawfully done by any other king An English king Rich. 2. by pretence of Royall authority cut many a worthy mans throat and murdered his Unkle the Duke of Gloster An other king Iohn sold this kingdom to the Pope May it therefore be lawfully sold and have any lawyers learned so little as not to know that there is no President to be alledged against an express Statute or not to know A Transgression of a statute even by the king if silently passed over and never brought into Judgment is not in the meaning of the law to be called apresident There 's no use of presidents unless it be to shew the usage where there is no statute in the case or to serve the construction of a statute where the meaning is doubtfull but where so many statutes are plaine and express as in this case 't is in vain to alledge what hath been done and connived at without Questioning it as a president to warrant the present breach of those statutes or rather to anull them forever And they must also as much degenerate from English men as from Logick and Lavv who shall assert that the kings of England may acquire a right or power to themselves and their successors for ever by their Ancestors transgressing any statute made to bound the Regall power All true English have alwayes maintained with their blood that our kings were limmitted by the laws and that they broke their oaths if they did not carefully see to the execution of them And in dayes of yore they have been so far from allowing the son and succesor of a king to break any of the laws because his father did so before him they have rejected the father because he kept not within the limmits of the law and taken the son upon his promise not to walk by his fathers Example Sir I have told you my thoughts upon the Question being satisfied that the kings will being declared upon record that you should not hold Parliament within the time limmited by law you were thereby dissolved and the Authorities given you by the people did thereby cease and return into the People and the kings will that you should afterwards hold Parliament again being not agreeable to law could not revive your power And in my poor opinion if you now assume to your selves to exercise Parliamentary powers becaus the king will have ' it so you must pass this fatall Judgment against the old English government That the king may lawfully prorouge you for 40. years if he please and may refuse for ever to hold a Parliament and if such a Judgment seemingly passed in Parliament against our Fundamentall lawes and liberties shall ever be left to the interpretation of any successors to our gracious king who shall intend a Tyranny he shall claim by that record to be our absolute master and neither Lords nor Commons to have any right to provide in Common Counsel for the defence of the Realm and their own good government and wellfare unless be please In fine our innocent babes shall hereafter read in that record that you Judged your selves and them to be perfect slaves all prostitute to the will of the king Doubtless if it be granted that the People have no right to parliaments but at the kings will we shall never have any king after this that will tell us as king Iames did in his speech to the parliament held March 19. 1603. That he vvas not ashamed to confess it his principle honnor to be the great servant of the Common vvealth and that he knevv himself to be ordained for the people and not the people for him I shall not advise you to come or stay I have herein delivered my one soul as becomes Your Fithfull and Affestionate Friend H. P. FINIS