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A44192
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Some considerations upon the question, whether the Parliament is dissolved by it's prorogation for 15 months?
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Carey, Nicholas.; Holles, Denzil Holles, Baron, 1599-1680.
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1676
(1676)
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Wing H2467; ESTC R3362
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16,176
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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shall be holden every year c. I. THE first Point in this Case is Whether these tvvo Statutes are still in Force and not Repealed They are not Repealed by the Act that Repeals the Triennal Act That being no way contrary or inconsistent with the two former Laws and therefore doth not derogate from them If we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 If a Statute extend in words to Repeal another statute yet if the intent of it was not to repeal it it shall not be repealed And it is evident there was no intention to prejudice or weaken these Laws both by his Majesties speech made the 21 of March 1663 to the Parliament as also Sir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 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
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