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A44192
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Some considerations upon the question, whether the Parliament is dissolved by it's prorogation for 15 months?
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Carey, Nicholas.; Holles, Denzil Holles, Baron, 1599-1680.
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1676
(1676)
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Wing H2467; ESTC R3362
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16,176
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27
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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
legal prorogation and consequently not sufficient to perform the kings will to continue the parliament and cause them to meet again on the 15th of February Yet the kings pleasure hereby declared shall be so far effectual as that they shall not be sitting in the mean time For though the king mistakes the Law yet his Acts are not void in those parts of them that are agreeable to Law It would be a contradiction in Law to say That a Parliament cannot sit but by the good pleasure of the king and yet be sitting contrary to his pleasure and will declared V. If the prorogation be void as to the continuing and reviving of the Parliament and the Parliament be not sitting The next point is Whether it can subsist sine die There is no president since the beginning of Parliaments of any Parliament that was once sine die that ever came together again So that Lex consuetudo Parliamenti is against it and if we break through that a Parliament may be any thing every thing nothing as the king please and no man is wise enough to forsee what inconveniencies and mischiefs may thereby break in upon us Whosoever will puruse the Rolls and Records of parliament shall find them very exact and curious in seting down the days and places from which and to which they were adjourned or prorogued And if a continuance to a day certain be not so necessary that the king cannot dispence therewith why should the parliament meet meerely to prorogue as they have done in all times Why besides the prorogation are there alwayes Commissions to continue them over And you shall find in the record of 13. E. 4. Num. 42. 43. the king and both houses of parliament though they had the assistance of Littleton and Hussy yet utterly ignorant of this point of learning A parliament sine die they could find no other expedient but Prorogation or adjourning the parliament to a certain day or enabling the king by a special Act of parliament to call them upon 20. dayes notice sooâ—â—r And that with so much caution and legall formalitie That in the very Record of the prorogation there is a salvo for that Act of parl and the Act it self recited in Engilsh for so Acts began then to be and in hac verba at the end of the latine record In this president there are several things remarkable that they understood not a prorogation or adjornment sine die to be legal That if a praliament be prorogued or adjourn'd to a certain day the king cannot call them sooner That 40 dayes noties being lex et con suetudo parliamenti The king cannot legally give them lesse notice unlâ—ss hâ— be enabled by specall Act of parliament All â—â—â—rts and Commissions of like nature when all their procedings refer to the first day and are pro hac vice viz Court of High Stevvard of England Assizes Nisi prius Oyer and Terminer Goal-delivery c. If they rise without adjorning they are determined Bro. Comis 12. Iones 420 421. 3. Leo. pag. 229. For these Courts have not certain days and times like Terms to sit but only a day to assemble their Commission day and then continne on by adjournment the reason of Law requires as much if not more exactness in the highest Court of Parliament than in any of the inferiour Courts and the Consequences that will ensue on a contrary way of proceeding will be very fatal The parliament is like those other Courts they are dissolved by discontinuance or by being put sine die and the reason they are dissolved by the death of the king is because they are thereby discontinued The Statute of the 1. of E. 6. Ch. 7. provides in many Cases therein particularly expressed That the death of the king shall not be a discontinuance But the case of the Parliament and those other Courts and Commission are not comprized in that Statute So that in those Cases the death of the king remains to be a discontinuance And further the Writs of summons impower the Members to act only in the Parliament therein appointed to meet such a day and also their power from the People as they are representatives relates only to the Parl summoned by such a Writ on such a day and all things in law relate to that day and if there be not a legal continuation from that day to another certain day their power by virtue of those Wrirts expire Claus. ann 5. H. 4. pt 1. The king by Writs tested Octob. 20. 5. H. 4. summons a parliament to meet the third of December following but after judging that day inconvenient because of Christmas by new writts tested 24. Nov. 5. H. 4. he makes a new summons This new summons did really make a new parliament for it made a new Election The king having once issued out his writs could not support or continue that Parliament but by their assembling and meeting together and being prorogued or adjourned to the day he intended which being at that time inconvenient he was forced to issue out new Writs and cause the people to make new Elections Dyer 203. So that the opinion That when a new parliament is summon'd a new day may be appointed without their meeting was not known to be Law in that Age. Neither doth the president of 1. Eliz. prove any thing to that purpose for in that case the parliament did meet the 23d of January and did also appoint the Tryers and Receivers of Petitions and was prorogued by the Queens Commission to the 25 following If we should once depart from Lex Consuetudo Parliamenti let this following Instance amongst many be considered A King or a Protector in the Infancy of a king shall prorogue a Parliament sine die and when they are all dispersed to their several habitations he shall in three dayes notice summon 12 Lords and 40 Commoners well principled well paid and near at hand for his purpose he may in few days change the Religion subvert the rights and properries of the Nation and enslave the people by authority of Parliament or the Protector such as he may be may alter the Succession destroy our Priuce and place himself in his room But to all this will be said The law and custom of Parliaments require 40 days notice which secures us from such a mischief It is replyed That there is no stronger law and custom for the 40 dayes notice than there is against Prorogations above a year or Parliaments sine die and if the kings prerogative can extend to the more essential parts it may to the circumstance of the time of notice The king that notwithstanding our old Stautes supported by the Law and Custom of Parliaments can prorogue a Parliament to a time never so remote or sine die that is to no time which is farther distant if he pleaseth and hath no end but with his Life can by the same prerogative make the time of notice as short as he