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
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
considered Object The King might have dissolved this Parliament and called a Nevv vvithin the year and therefore these Statutes might have been observed notvvithstanding the Prorogation Ansv. This is a clear confession of the invalidity of the Prorogation since it is allowed those Statutes will not be pursued unless the prorogation be annull'd and the Parliament that subsists by it dissolved Neither doth the kings power to remedy it by another Act support the validity of this for then no Act of the kings though never so much against Law but may be as well justified he having power left in him to remedy it if he thinks fit which is an excellent way of rendering our law Arbitrary and the Power of the Crown Absolute Object The King hath frequently by shorter Prorogations and adjournments intermitted Parliaments for several years vvhich is the same as if he had prorogued them at once for so long time Ans. The case is directly different between these two the shorter prorogation being within the letter of the Law and those above a year directly contrary t is very true it is as much a part of the statute that mischeifs and grievances should be redressed at the Parliament as that a Parliament should be holden yet nevertheless though a King hereafter or in times past has or shall de facto by short prorogations evade the force and intent of those Laws against his Duty and Oath that does not argue or prove that therefore he may de jure make a prorogation above a year which is to repeal those Laws the wisdom of the Law doth in such cases put the king to renewing his Acts and to bring them under a fresh consideration Year Book 39. H. 6. as in the case of Pretections where the kings protections for a year stand good though several times repeated yet one and the same protection for more than a year is utterly void So the king can grant an exception to one single person from serving in Juries and so to as many single persons as he shall find cause and such exceptions shall be good in law but the kings Charter to exempt all in such a County is void because of the inconveniencies that ensue in such a case The kings prerogative extends only for the good of the people never to their prejudice or great inconveniencies In like case the Judges have a power to give a day to the parties pleading before them from one Term to another and may renew the giving of a day from Term to Term as often as they see cause but they cannot give a day during life or for tearm of years the reason is that this power or lesser prerogative is intrusted with them for the better dispatch and not for the overthrow of Justice Besides the Parliament doth really assemble and sit at the time of every adjournment or prorogation and the length or duration of their sitting doth not at all concern the state of this Question They may as well say the king need never call a Parliament because he can by law annually hold a Parliament for two or three days and then end them not having suffered them to do any of the business of the Nation Which is to argue from the kings power abused which power ought to be exercised for the protection and better execution of the laws to a nullity of the law it self To conclude this point It is no argument to say the king is trusted you have no remedy against him you cannot compel him for that is the very reason why all illegall Acts of the king are null and void 5. Cok. 14. where there is a contrariety between the Law and the kings single Act so as they cannot stand together the kings Act cannot over-rule and make void the Law but the law makes void the kings Act all the kings Acts are under the power operation and construction of the law and the law makes them either valid or void according as they correspond or not with it D St. 22. 23. IV. Since the prorogation cannot revive or continue the parliament unto the 15th day of Feb. 1676. being in that particular contrary to law and so void and null The next point will be Whether the Parliament be still sitting and hath been so ever since the prorogation To clear this point it would be worth the asking If the Parliament should pass Acts in February or March next to what day should they relate Must the members be allowed their priviledges and their 〈◊〉 during this time and a thousand more such like questions would arise But it is clear that a Parliament prorogued is a Parliament not dissolved but continued over to another day and when the prorogation is legal there is a Parliament continuing but not sitting To express the matter clearer it will not be un-useful either to the clearing this point or the better understanding the whole question in general to explain the law of Parliaments in this place If a Parliament meet though afterward they be prorogued or dissolved before they make any Act yet this in law while it was sitting was a Parliament holden The Judgements that are affirmed or reversed in such Parliaments are good in law and so are all other their proceedings and wages shall be paid A Writ of Error then brought would have been returnable at presens Parliamentum and in pleading it is usually said ad parliamentum incoat such a day ab inde per prorogationem continuat c. Next That a Session of parliament in law so called is when there is an Act passed and takes in all that time that is from the time of the meeting either by Summons or prorogation until the time the parliament is prorogued or dissolved for during all that time they are in law looked upon as sitting and all that sitting is called a Session Next if a Parliament be summoned and meet and then be prorogued either before or after any Acts passed that this is a Parliament continued Therefore 't is Parliamett continuat per diversas Prorogatione usque ad such a day tunc tent Therefore Parliament and Session of Parliament are different things every Parliament must be before it can make an Act therefore it must be and must have continance before it can make a Session and all the while that it hath continuance it is a Parliament in being but when it is prorog'd it cannot be said to be a Parliament sitting or that t is then holden but by the prorogation is put off from sitting or being holden but continued Hence you may observe the mistake of the Judges in Huttons Rep. Fol. 61. in not distinguishing between Parliament and Session of Parliament Next In this case de facto there was no sitting but all departed and the King hath summon'd them by his Proclamation to Assemble upon the 15th of Feb. So the king doth not know they are now sitting And though this Prorogation for the Causes abovementioned be not a
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