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be holden every year c. I. THE first Point in this Case is Whether these tvvo Statutes are still in Force and not Repealed They are not Repealed by the Act that Repeals the Triennal Act That being no way contrary or inconsistent with the two former Laws and therefore doth not derogate from them If we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 If a Statute extend in words to Repeal another statute yet if the intent of it was not to repeal it it shall not be repealed And it is evident there was no intention to prejudice or weaken these Laws both by his Majesties speech made the 21 of March 1663 to the Parliament as also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