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A44192 Some considerations upon the question, whether the Parliament is dissolved by it's prorogation for 15 months? Carey, Nicholas.; Holles, Denzil Holles, Baron, 1599-1680. 1676 (1676) Wing H2467; ESTC R3362 16,176 27

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day Object But notvvithst●nding it appcars by vvhat is said That this Parliament is neither Sitting or Progogued neither can it subsist sine die or by Proclamation yet there are some vvill tell us That it is the King's Prerogative alone to Prorogue or dissolve Parliaments and they vvill urge the opinion of chief Justice Lee That a Parliament cannet be dissolved or determined but ly matter of Record and that by the King alone Hutton Rep. Fol. 62. Ans. To this may be said That no man or number of men except the king can by matter of Record Dissolve a Parliament It is the right and prerogative of the king alone to do that But there are several other wayes by which a parliament may naturally or violently come to its end To make the expression plainer let this instance be offer'd no man hath authority to kill any of the kings subjects without a lawful Commission derived from him yet any of his Subjects may die naturaly or be killed violently and though the person that did it be liable to punishment yet the subject is not alive The death of the king or the resignation of his Crown are known and confessed to be the natural death of the parliament as well as of those other courts As also the return of the king from a forreign Country into England determines a parliament summon'd by his lieutenant in his absence as appeares expresely by the Act of parliament 18. H. 5. Ch. 7. The Duke of Gloucester the kings uncle told Richard the second of another way If the king shall 〈◊〉 absent himself from his parliament then sitting for the space of 40 Dayes Histor. Angli Fol. 2681. If a parliament should continue as long as this and the king should issue no writs to fill their vacant places it is more than probable that would prove a natural dissolution If the Gunpower treason had taken effect or any such like wicked or sad accident should happen it would prove a violent dissolution of the parliament So that cheif Justice Lee in in Huttons Rep. Fo. 62. was as much out in point of Law that a parliament cannot be dissolved but by the king and by matter of record as he was in good sence when he spoke of discontinuance of Parliaments by matter of Record Primo Mariae was a great Question whether the Parliament then summoned was not void Because 26 H. 8. C. 1. and 35. H 8. C. 3. did unite and annex the Title or Stile of Supremum Caput Eccleseae Anglicanae to the Crown and this Title or Stile was omitted in the then writs of Summons Some of the Judges and Queens Council thought this was not a necessary part of the Queens Stile others thought otherwise but it was admitted of all hands that supposing the Statutes of Henry the Eighth had extended to have made this a necessary part of the Queens Stile the force of the same Statutes had made void the parliament so that it appeares evidently by this that it was their Opinion that a parliament might be dissolved by the force of former statutes though the kings express pleasure for the dissolving of it did not otherwise appear upon record Decimo sept Car. 1. was an Act made that the Parliament should not be dissolved prorogued or adjorned but by their own consent by Act of parliament Here the kings 〈◊〉 of dissolving Parliaments is limited by an Act so that it is plainly subjected to former Statutes The Trienal Act it self is an Instance beyond exception this parliament which repealed it admitted it to have been a binding Law else what need it to have been repealed By this Act the kings prerogative was limitted both in calling and dissolving parliaments Ex abundanti it might be said That Acts of Parliament can bind limit restrain and govern the Descent and Inheritance of the Crown it self and all rights and titles thereunto This was practised in Henry the Eighth's time and in the thirteenth of Eliz. The affirming holding or maintaining the contrary was made Treason during her Life and after her decease forfeiture of all Goods and Chattels Neither is there any form of words necessary for the king to use in the Dissolving the Parliament If he bids them go home If he tells them he hath no further use of them or if he say They may be gone So also if he Prorogue them for a thousand years it cannot be thought other than a Dissolution The same would be if he Prorogued them for a hundred or tvventy years or any time above a year which is the boundary the Law hath set for if you exceed that what shall the time be or who shall have the authority to appoint it FINIS Cook 4. Rep. Slades Case Leonard 2. p. 87. 29. 30. Crook Eliz. 185. Cook 9. Rep. fol. 16 fully the Case Co. 12. Rep. Fol. 65. Dyer 98.
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 soo●●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 unl●ss h● be enabled by specall Act of parliament All ●●●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