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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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doing right in any point notwithstanding any command by greator privy Seal and the Statute of 14. Edvv. 3. Cap. 14. is to the same purpose Fitzherbert hath a writ upon these Statutes requiring the Judges to proceed notwithstanding any such Command Nat. Brev. 240. That those laws of Ed. 3. for Annual Parliaments are pro bono publico and of the greatest concern to the Nation besides they are made concerning the highest Court of Judicature of the Dernier Resort and which regulates and keeps all the rest in order needs not a proof to any reasonable man Nay the kings in parliament have very often own'd it One of these Statutes viz. 36. Ed. 3. is express in this case For that Statute begins with the confirmation of Magna Charta and Charta de Forresta has three other Articles for remedy and redress of Mischiefs by the kings officers and purveyors so comes to an Article for relief of the Subject by original writ out of the Court of Chancery and then for mainteinance of the said Articles and Statutes and redress of Mischiefs and Grievances which daily happen this Article that a Parliament shall be holden once a year was enacted And this Atticle was held of that consequence that in the next Parliament following 37. Ed. 3. Cap. 1. Magna Charta and Charta de Forresta are confirmed with the word Especially to the Acts of the preceding Parliament as if they thought those Charters would be rendred ineffectual to them if they were not secured by Annual Parliaments The king may as well discharge Magna Charta as these Statutes that are made for the maintenance of Magna Charta Reason will tell us if we consider the nature and business of parliaments That we ought to be secured of them within a time certain and the Law has prescribed this of a year and no other to be that certain time The parliament Rolls 5 Ed. 2. No. 29. and the 1. R. 2. N. 59. are both express in the Case and that because the parliament is the only Court wherein the Subjects can recover their right without the fear of delay or the oppression of great Men. And how could they answer any of those ends if the time prescribed by the Lavv be not punctually observed An absolute and direct law and not sub modo as under forfeiture of such a sum or such a penalty cannot be dispensed with by the king but all his Acts against it are nullities nay this reason and rule is extended to Common persons and cases that when a Statute prohibits a thing to be done it makes a nullity of any thing done against it if there be not a penalty limitted in the statute for the breach of it Our king in his answer to the House of Commons of the 24 of Feb. 1672 declares that he doth not pretend to the right of suspending any Laws wherein the Properties Rights and Liberties of any of his subjects are concerned and all our Properties Rights and Liberties are bound up in those laws of annual Parliaments But this Fancy of Dispensation cannot take place with any man that considers the first of these two statutes viz. That a parliament shall be held every year once or more often if need be Where the king is left only Judge of the need of a Parliament oftner than once a year but whether the king see need or no it is absolutely positively and peremptorily ordeined That a parliament shall be holden once a year And to make any other interpretation of the said law is to suppose that the parliament did by that Act change the Common-law which gave us a right to annual frequent parliaments and deliver it wholly into the Will and pleasure of the king And so the next statute of 36. Ed. 3. is to be reduced to this sence viz. For maintenance of the said Articles and statutes an redress of divers mischiefs and grievances which daily happen a parliament shall be holden every year or once in 20 years as the king please But admit the last words of the statute of the 4th Ed. 3. if need be runs to the whole sentence yet according to this sence The king is obliged to call a parliament within the year if there be need and a prorogation for 15 mouths puts it out of his power to call them what ever need there may be Neither will the preamble of the statute of the 27. Eltz. Chap. 8. help the matter it would be very hard that a Preamble of an Act of Parliament should repeal or enervate statutes of that consequence especially when the enacting part hath not a word to that purpose but in truth this preamble is far from an allowance for it is a complaint of Parliaments not being so often holden as in antient time whereby the Subjects of this Realm are greatly hindred and delayed of Justice It is worth the considering how the King should have more power by the law to deprive us of constant annual Parliaments than he had to deprive us of the four Terms in the year or the four Quarterly Sessions of the Peace In Johnsons and Norton's Case it is there said That the King cannot adjourn the Courts of Westminster-Hall intermitting a Term and that to do so vvould be a breach of Magna Charta nulli negabimus nulli deferrimus Justitiam And is it not as high a breach of the great Charter to intermit the greatest Court of Judicature beyond the time appointed by law It is very true the king is trusted with the time when they shall sit so it be within the year for that is positively prescribed by the law so also is the king trusted with the granting Commissions to the Judges and Justices of the Peace which he may as legally omit and frustrate those laws as omit the appointing a time within the year by his Writ for the Parliament to meet And it is evident that it was the opinion of that great king Edvv. 3. That the Lavv of the Realm is such that upon mischifs and dammages vvhich happen to the Realm the King ought and is bound by his Oath vvith the accord of his People in Parliament thereof to make remedy and lavv And in truth there is great reason that the king should be more especially obliged by his Oath to the laws of Parliaments that being of highest concern But to conclude this point with an Argument to the capacity of such as do fancy the king can dispence with laws of so great moment and concern Those Worthies must allow that where the King can dispence he is not intended to dispence without a Clause of non obstante to the statute he doth dispence with And there is no such clause in the Record of Prorogation III. If these statutes do oblige the king the next point is Whether this Prorogation be contrary to those tvvo statutes of Edw. 3. and vvhat the Consequences are thereupon The statutes are That a Parliament shall be holden every year
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 ●●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 f●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 J●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 u●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