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shall be holden every year c. I. THE first Point in this Case is Whether these tvvo Statutes are still in Force and not Repealed They are not Repealed by the Act that Repeals the Triennal Act That being no way contrary or inconsistent with the two former Laws and therefore doth not derogate from them If we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 If a Statute extend in words to Repeal another statute yet if the intent of it was not to repeal it it shall not be repealed And it is evident there was no intention to prejudice or weaken these Laws both by his Majesties speech made the 21 of March 1663 to the Parliament as also Sir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
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
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
day Object But notvvithstâ—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.