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ID Title Author Corrected Date of Publication (TCP Date of Publication) STC Words Pages
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