SOME Considerations Upon the QUESTION WHETHER The Parliament is Dissolved By it's Prorogation for 15 Months The two Statutes upon which this Question depends are 4. Edvv. 3. Cap. 14. Item it is accorded That a Parliament shall be holden every year once and more often if need be 36. Edvv. 3. Cap. 10. Item for maintenance of the said Articles and Statutes and redress of divers Mischiefs and Grievances vvhich daily happen a Parliament shall be holden every year As another time vvas ordained by another Statute Printed in the Year 1676. SOME CONSIDERATIONS Upon the QUESTION Whether the Parliament is Dissolved by its Prorogation for 15 Months The two Statutes upon which this Question depends are 4 Edvv. 3. Cap 14. Item it is accorded that a Parliament shall be holden every year once and more often if need be And 36. Edvv. 3. Cap. 10. Item for maintainance of the said Articles c. a Parliament shall be holden every year c. I. THE first Point in this Case is Whether these tvvo Statutes are still in Force and not Repealed They are not Repealed by the Act that Repeals the Triennal Act That being no way contrary or inconsistent with the two former Laws and therefore doth not derogate from them If we have not a Parliament every year the King neglects the two former Statutes But if we have not a Parliament in three years the king neglects not only them but the last Statute of his own making There is a rule in Law that if Laws and Statutes seem to be contrary the one to the other yet if by interpretation they may stand together they ought so to do In this case there is not so much as a seeming contrariety Rol. Rep. part 1. fol. 91. So likewise fol. 91. If a Statute extend in words to Repeal another statute yet if the intent of it was not to repeal it it shall not be repealed And it is evident there was no intention to prejudice or weaken these Laws both by his Majesties speech made the 21 of March 1663 to the Parliament as also Sir Edvvard Turners speech then Speaker of the House of Commons made the 17 of May 1664 at the conclusion of that Session The offence taken was at the manner and means in and by which the Act of King Charles the First did appoint a Parliament to be assembled And not only the Title of this Act declares they intended a repeal but of one Act viz. that of King Charles the first but also the very Act it self mentions and allows these Statutes of Edv. 3 to be Laws in force and approves them But if there were as there is not any colour that these Statutes are hereby repealed yet it is plain that the Statute of the 16th of Car. 2. Cap. 1. which should make the repeal is not to take place till after the determination of this Parliament The words are That hereafter the sitting and holding of Parliaments shall not be intermitted or discontinued above three years but that vvithin three years from and after the determination of this present Parliament c. your Majesty c. do issue out your Writs c. Here the enacting part of this Clause doth not take place till after the determination of this present Parliament And the word hereafter in the begining of the Clause has clearly reference to that time and with what Grammer or sence doth this redition But that c. otherwise correspond to the preceding words which will be plainer if you suppose it penn'd But that vvithin three years from and after the end of tvventy years next ensuing shall not in that Case the word hereafter refer to the end of twenty years and if this Parliament survive this Progogation there may not be much odds in point of Time whether of the two wayes the clause had been penn'd That the Kings of England have not duely nor constantly observed these Statutes ever since their making doth not render them of less force For the Kings Omissions to fulfil a Law or his personal Offences can never be drawn into question Judicially because the King is not under any compulsion nor accountable to any Court and is so far and in such respect Solutus legibus But all Acts of the king contrary to law are adjudged to be in deceit of the king and the law voids and nullifiies all such Acts Hobart Page 154. II. The next point is Whether the King is bound by these Statutes and vvhether it is in his povver to suspend supersede or dispence vvith them The king is the only person that can be meant or bound For he it is that is to summon or â—â—ld Parliaments and therefore the Statutes intend to oblige him or else they intend nothing And the laws for Parliaments that secure our Religion Properties and Liberties are become onely Advices and Counsels to the Prince with no Obligation further then the Princes present thoughts of their Expedience It is a Rule in law when a thing is ordained that implies any act to be done proper only to the king The king shall be bound by a general Act. Case of Warren and Smith Rolls 1. Rep. Fol 156. These Statutes are in pursuance of the Common Law and the king cannot dispence with the Common Law The Mirror of Justice a very ancient and authentique Book saith Cap. 1. Sect. 3. That it vvas a Lavv in King Alfred's time That Parliaments should be holden tvvice a year And all our antient Histories testify that fâ—rmerly Parliaments were held at the three great Festivals every year Co. Lit. 110. 4. It is a general rule in law That the king cannot dispence with any Statute made pro bono publico Cook Rep. 5. 15. In the case of Ecclesiastical persons The Judges in parliament declare That the king being the Head of the Common-wealth cannot be an Instrument to defeat an Act of Parliament made pro bono publico Plow Com. 236 237. 5. Co. rep 14. The king cannot dispence with but is bound by Statutes made concerning Courts of Judicature Stat. 13. R. 2. Ca. 13. 15. R. 2. Cap. 5. 2. H. 4. C. 11. made for restraining the Jurisdiction of the Court of Admiralty King Jâ—mes by his Letters pattents granted to the Admiralty larger Authority and Judicature than those Statutes did allow with a clause of non obstante to those Statutes The Common-law-courts grounding themselves uâ—on those Statutes granted prohibitions contrary to the letters pattens and thereupon the said Admiral complained to the king And all the Judges then gave their opinions That those Statutes did oblige the king and that the king could not by his letters pattents go contrary to those Statutes Co. Jurisdiction of Courts fol. 135. 136 137. The Subjects have the same right in the Courts of Judicature as they have in the Laws and the same right to the Laws as they have to their Estates The Statute 2. Edvv. 3. Chap. 8. commands the Justices that they shall not delay
This prorogation being for above twelve months intermitts a whole year for the statutes say There shall be a Parliament holden once every year or oftner And the Prorogation saith there shall be no Parliament holden for 15 months then next to come It is a foolish fancy to imagine that the statutes are sufficiently answered since a Parliament was holden in 1675. and another Parliament shall be holden in 1676 for in all cases where the Law speaks of a year or a year and a day it is understood and reckoned for twelve Calendar months to take its relation and date from the subject matter that the Act treats of If otherwise the sence of the statute will be That a Parliament shall be holden once in two years And it is plain that in Richard the second 's time it was not so understood For his first Parliament dissolved the 18th of November his next parliament began the 20 of October following where the Chancellour gives us the reason for summoning the parliament then That the king would keep well his Covenant in holding annual parliaments Cottons Abridg. fol. 173. If this intermitting a parliament for above an year be not contrary to these statutes what can be There is no difference to be made of any measure of time beyond a year and there is no bounds to the time of a prorogation if it may exceed that it may be as well for ten or twenty years and yet the Judges said in Harrison's Case That in every statute there is some bounds set that must be kept Lex Consuetudo Parliamenti are dear in this case of annual parliaments neither will the single uncontested president passed sub silentio the 5th of Eliz. alter the Law and custom of parliaments There the parliament was prorogu'd from the second of October quinto Eliz. to the 5th of October sexto Eliz. being a year and three dayes and let it be granted that this prorogation for fifteen months is as good and valid in Law as that If they are both illegal the one cannot support the other no more than her commiting of Wentvvorth and another Member in October following in that very parliament for what they said in the House shall take away the Liberty and Freedom of speech the Members in either house enjoy by Law and Custom of Parliament In the Case of Tythes twenty years payment will not prejudice him that can afterwards prove a modus decimandi In this Case we have the Common-Law and several statutes to prove a modus The law-Law-Books tell us That silent and sleeping Presidents never drawn into question shall not alter what is established by Law and Reason Our annual Parliaments are established to us by common-Common-Law Statute-Law and the Reason even of the Government it self Neither can the Laws that were made in that Parliament be at all weakned by it now Their Validity depends not upon the lawfulness of that Parliament wherein they were made but upon the distance of time since their making during all which they have been received without contradiction and incorporated into our Laws Time and general reception and multitude of Interests involved creates an authority to that which fresh and earlier pursuit would have rendred invalid as also highly criminal in those that made it 'T were a very hard case if one single Act of the Crowns contrary to law because not observed or contested should be of force to repeal and set aside the Common-law several Statute-laws and the constant course and usuage in all Ages But if there be any use to be made of this president it is that it shews us the opinion of that time That a parliament in every year of the kings Reign did comply with the old Statutes but this will do no service in the present case for as our prorogation is contrived the 28 year of this kings reign is without a parliament whereas Queen Elizabeth's prorogation began the second of October in the fifth year of her reign and ended the 5th of October in the sixth year of her reign The Reason of the Government in other cases as all Courts of Judicature which are setled by law and can meet without the kings particular Commission as the Courts in Westminster-Hall the Sessions of the peace the County-Courts the Hundred-Courts the Court-Leets c. are either fixed to a day certain for their beginning or limitted within a time certain and all within a year Those that cannot begin without the kings particular Commission ought ex debito Justitiae to be granted whenever the Subject desires it especially if there be no other remedy for the Subject So also parliaments are limited within a time certain which is within a year for therein the law is positive but as to the particular day and place and the duration of their sitting which could not be so well reduced into a fixed and positive Law they were trusted with the king as the proper subject of his Prerogative By all this it will appear that a prorogation for more than a year is contrary not only to these two Statutes but also to the Reason of the Government the law and custom of the Parliament and the Common-law it self and therefore illegal in all and every respect And an illegal Act of the king is void and null in law My Lord Hobart speaks very fully to this Case Hob. pag. 154. upon a lapse devolved to the Bishop and at last to the King where he saith thus A Lapse is an act and office of Trust reposed by Lavv in the King the end of vvhich Trust is to provide the Church of a Rector and therefore tho the King may suffer the Church to stand void vvhich yet is Culpa yet he cannot bind himself that he vvill not fill the Church for that vvere Injuria malum in se and therefore shall be judged in Lavv in deceit of the King For Eadem mens presumitur Regis quae est juris esse debet When it is said That the prorogation is void and null in Law it is only to be understood that it is so far void and null as it is contrary to Law for the prorogation doth two things First It puts off the Parliament and all business before them and determins the Authority they at that time have and this part of a prorogation can never be illegall for the King can dismisse a Parliament and determine their Authority at his own pleasure Secondly It appointed a time when they shall meet again and their authority revive Now this part of a prorogation is bounded by the Law which says a Parliament shall be holden once a year and therefore if the appointment to meet again be not within a year it is as if there had been no appointment at all and such a prorogation is only a dismission of a Parliment and a determination not a reviveing of their Authority To all this there are some Objections which ought to be
considered Object The King might have dissolved this Parliament and called a Nevv vvithin the year and therefore these Statutes might have been observed notvvithstanding the Prorogation Ansv. This is a clear confession of the invalidity of the Prorogation since it is allowed those Statutes will not be pursued unless the prorogation be annull'd and the Parliament that subsists by it dissolved Neither doth the kings power to remedy it by another Act support the validity of this for then no Act of the kings though never so much against Law but may be as well justified he having power left in him to remedy it if he thinks fit which is an excellent way of rendering our law Arbitrary and the Power of the Crown Absolute Object The King hath frequently by shorter Prorogations and adjournments intermitted Parliaments for several years vvhich is the same as if he had prorogued them at once for so long time Ans. The case is directly different between these two the shorter prorogation being within the letter of the Law and those above a year directly contrary t is very true it is as much a part of the statute that mischeifs and grievances should be redressed at the Parliament as that a Parliament should be holden yet nevertheless though a King hereafter or in times past has or shall de facto by short prorogations evade the force and intent of those Laws against his Duty and Oath that does not argue or prove that therefore he may de jure make a prorogation above a year which is to repeal those Laws the wisdom of the Law doth in such cases put the king to renewing his Acts and to bring them under a fresh consideration Year Book 39. H. 6. as in the case of Pretections where the kings protections for a year stand good though several times repeated yet one and the same protection for more than a year is utterly void So the king can grant an exception to one single person from serving in Juries and so to as many single persons as he shall find cause and such exceptions shall be good in law but the kings Charter to exempt all in such a County is void because of the inconveniencies that ensue in such a case The kings prerogative extends only for the good of the people never to their prejudice or great inconveniencies In like case the Judges have a power to give a day to the parties pleading before them from one Term to another and may renew the giving of a day from Term to Term as often as they see cause but they cannot give a day during life or for tearm of years the reason is that this power or lesser prerogative is intrusted with them for the better dispatch and not for the overthrow of Justice Besides the Parliament doth really assemble and sit at the time of every adjournment or prorogation and the length or duration of their sitting doth not at all concern the state of this Question They may as well say the king need never call a Parliament because he can by law annually hold a Parliament for two or three days and then end them not having suffered them to do any of the business of the Nation Which is to argue from the kings power abused which power ought to be exercised for the protection and better execution of the laws to a nullity of the law it self To conclude this point It is no argument to say the king is trusted you have no remedy against him you cannot compel him for that is the very reason why all illegall Acts of the king are null and void 5. Cok. 14. where there is a contrariety between the Law and the kings single Act so as they cannot stand together the kings Act cannot over-rule and make void the Law but the law makes void the kings Act all the kings Acts are under the power operation and construction of the law and the law makes them either valid or void according as they correspond or not with it D St. 22. 23. IV. Since the prorogation cannot revive or continue the parliament unto the 15th day of Feb. 1676. being in that particular contrary to law and so void and null The next point will be Whether the Parliament be still sitting and hath been so ever since the prorogation To clear this point it would be worth the asking If the Parliament should pass Acts in February or March next to what day should they relate Must the members be allowed their priviledges and their 〈◊〉 during this time and a thousand more such like questions would arise But it is clear that a Parliament prorogued is a Parliament not dissolved but continued over to another day and when the prorogation is legal there is a Parliament continuing but not sitting To express the matter clearer it will not be un-useful either to the clearing this point or the better understanding the whole question in general to explain the law of Parliaments in this place If a Parliament meet though afterward they be prorogued or dissolved before they make any Act yet this in law while it was sitting was a Parliament holden The Judgements that are affirmed or reversed in such Parliaments are good in law and so are all other their proceedings and wages shall be paid A Writ of Error then brought would have been returnable at presens Parliamentum and in pleading it is usually said ad parliamentum incoat such a day ab inde per prorogationem continuat c. Next That a Session of parliament in law so called is when there is an Act passed and takes in all that time that is from the time of the meeting either by Summons or prorogation until the time the parliament is prorogued or dissolved for during all that time they are in law looked upon as sitting and all that sitting is called a Session Next if a Parliament be summoned and meet and then be prorogued either before or after any Acts passed that this is a Parliament continued Therefore 't is Parliamett continuat per diversas Prorogatione usque ad such a day tunc tent Therefore Parliament and Session of Parliament are different things every Parliament must be before it can make an Act therefore it must be and must have continance before it can make a Session and all the while that it hath continuance it is a Parliament in being but when it is prorog'd it cannot be said to be a Parliament sitting or that t is then holden but by the prorogation is put off from sitting or being holden but continued Hence you may observe the mistake of the Judges in Huttons Rep. Fol. 61. in not distinguishing between Parliament and Session of Parliament Next In this case de facto there was no sitting but all departed and the King hath summon'd them by his Proclamation to Assemble upon the 15th of Feb. So the king doth not know they are now sitting And though this Prorogation for the Causes abovementioned be not a
please that being piescribed by no Statute and only depending upon the law and custom of parliaments and has been invaded by a more dangerous president than any other point of the law and custom of Parliament has been Hen. 4. the first day he came to the Crown summons a parliament by writ to the Sherffe returnable the 7. day he durst not venture upon a parliament discontinued and so disolved by the resignation of Ri. 2. though they assembled but the same day that his writtes went out for a new and notwithstanding they were such men as he planly approved of yet new writs of Sumons and a new return of the Sherifs was thought Essential at that time To all this is objected that Ano. 33. of E. 1. the parliament was dismised the 21. of March without limiting any day certain and it doth appear that an order was made in pleno parliamento on the 6. of April following so that the same parliament dismissed sine die was recalled and sat again Ryley 240. 279. 282. To this is answered that this record will not be of validity to change our Laws and constant practice of parliaments ever since they were setled The Original Book in the Tower of which Riley is a copy was but extracts out of the close Rolls and some parliament Rolls since lost and a mistake in trancscribing the date of the record may very easily happen for that the former leave given was a disolution is eviedent becase the members of the house of Commons tooke out there Writ for Wages whith in those times was never taken out till after the Parliament was dissolved And if to be dismissed sine die be a disolution the question is gained and is matters not much whether this be an Order of the Prelats and Temporal Lords with advise and assistance of the privie Council and Judges for these were all ordered in the dismision to stay behind and attend And the words in pleno Parliamento might be inserted to distinguish it from an Act of the privie Council alone which is the more probable both because the nature of the Order is such as the Kings Counsel alone could have made and the distance of time from the 21th of March to the 6th of April was too short for a recealing of the Members and too long to suppose them to have continued of themselves neer the Court and within call Or whether the king did call the same Parliament after a dissolution which the same king had don in the 28 year of his raign and his son Ed. 2. did in the ninth year of his Both which were upon a pretence to advise with him and we have no lawes extent of their making for this does but argue That the 〈…〉 parliaments were not yet fully settled haveing suffered lately in the end of H. 3. time a great alteration and this vigorus and might prince Edvv. 1st was attemping to extend his prerogative so that we have other presidents of a like nature as the summoning of one Knight for every County and one Citizen and one Burgess for every City and Burrough But both these and the former prsidedents have been long since condemned and fully settled on the peoples side this latter 21. Ed. 3. Num. 16 17. confirmed 51. E. 3 N. 25. And the former the 50. E. 3. Numb 177. Item prie lee commune que pleite Establier per Statute in ceste present Parliament que chescun ann soit tenus un Parliament de faire correccions en Royalme des errors fauxetees Si null y soynt troves que les Chevaliers des Countees pur celles Parliaments soyent eslus per Commune Election de les meilleur gents des dit Countees Et nemy certifie per le Viscount Soul sans diu Election sur certeine peine Res. Endroite diu Parliament chescun anne il y dyent Estatutes Ordinances faits les quex soyent dament gardes tenus Et quant al article del Election des chevalier qui vendroient a Parliament le Roy voit quils soynt Eslus per commune assent de tout le Countee This Record is worth the Observing it has not only setled the point that our Kings could not have the same Parliament after dissolution or being sent home returned again upon his Summons or Writs to the Sheriffs but settles that the people of England ought not only to have a parliament every year but a new Choise To conclude this Objection Let it be considered how weak a proof the date of this Order is in so great a point to prove a parliament recalled after a dismission sine die would require Journals of their sitting Writs by which they were summon'd or for wages or Acts which were allowed to be in force and of such a nature as none but a Parliament could do none of which are in this case VI. If the Prorogation be void the Parliament not sitting nor can subsist sine die then the last point is That it must be Dissolved It will be hard to find a president of a parliament that was neither Sitting Adjourn'd Prorogu'd or dissolv'd this is none of the three former and therefore must be the latter viz. Dissolved If the Parliament be not sitting nor can subsist sine die and the prorogation be null and void then what shall bring them together again the 15 of February It is very true the king has issued his Proclamation for that purpose but proclamations are Acts of Grace to notify and promulgate to the Subjects the Laws that are that they may be kept and observed but they cannot alter the Law or any proceedings in Law VVhen was there a parliament prorogued by proclamation was not that always done by Commission and a Proclamation served only to give the people notice o◠the Kings pleasure to order their occasions accordingly In the beginning of the late troubles the king by proclamation adjourned the Courts at Westminster to Oxford without any Writ of adjournment and since the Return of his Majesty in an Affize brought by Sir Edvvard Heath against Mr. Pagit for the Office of Custos Brevium of the Court of Kings Bench It was declared in the Court of Kings Bench That those Courts at Oxford were coram non Judice and all their proceedings void and nothing hath been legal of their proceedings ever since At the time of the Chatham Invasion the Parliament stood prorogued to the tenth of October 1667 whereupon the king issued out a proclamation to summon them to meet the 25th day of Iuly at their Meeting the king told them That he had summon'd them vvhen he vvas under an exigence vverein he thought not fit to rely on less Counsel than theirs And the truth is they were universally looked upon as a Council not a Parliament And my Lord keeper in his Speech on the 10th of Ostob. 1667 told them It vvas a doubt by grave and vvisemen vvhether or no they could sit and act as a Parliament before that