of England must call a parliament once within | a year; and the reasons why they are bound to do so, are as plainly set down, namely, for the maintenance of Magna Charta, and other statutes of the samne importance, and for preventing the mischiefs and grievances which daily happen.-The question then remaineth, Whether these statutes have been since repealed by any other statutes or no? The only statutes I ever heard mentioned for that, are the two Triennial Bills, the one made in the last king's, and the other in this king's reign. The Triennial bill, in the last king's reign, was made for the confirmation of the two abovementioned statutes of Edw. iii. for parliaments having been omitted to be called every year according to those statutes, a statute was made in the last king's reign to this purpose, That if the king should fail of calling a parliament, according to the statutes of Edw. iii.' then the third year the people should meet of themselves, without any writs at all, and chuse their parliament-men. This way of the people's chusing their parliament of themselves, being thought disrespectful to the king, a statute was made in this last parliament, which repealed the Triennial bill; and after the repealing Clause (which took notice only of the Triennial bill made in the last king's reign) there was in this statute a paragraph to this purpose: That because, by the antient statutes of the realm, made in the reign of Edw. iii. parliaments are to be held very often, it should be enacted, that within 3 years after the determination of that present parliament, parliaments should not be discontinued above 3 years at most, and be holden oftener if need required.' There have been several half kind of arguments drawn out of these Triennial bills, against 'the statutes of Edw. iii, which I confess I could never remember, nor indeed those that urged them to me ever durst own: for they always laid their faults upon some body else, like ugly, foolish children, whom, because of their deformity and want of wit, the parents are ashamed of, and so turn them out on the parish.-But, my lords, let the arguments be what they will, I have this short Answer to all that can be wrested out of these Triennial bills, That the first Triennial bill was repealed, before the matter now disputed of was in question; and the last Triennial bill will not be in force till the question be decided, that is, till the parliament is dissolved.' The whole matter, my lords, is reduced to this short dilemma; either the kings of England are bound by the acts above-mentioned of Edw. iii. or else the whole government of England by parliaments, and by the laws above, is absolutely at an end: for if the kings of England have power, by an order of theirs, to invalidate an Act made for the maintenance of Magna Charta, they have also power, by an order of theirs, to invalidate Magna Charta itself; and if they have power, by an order of theirs, to invalidate the statute itself, de Tallagio non concedendo, then they may not only, without the help of a parliament, raise money when they please, but also take away any man's estate when they please, and deprive every one of his liberty, or life, as they please.-This, my lords, I think, is a power that no judge or lawyer will pretend the kings of England to have; and yet this power must be allowed them, or else we that are met here this day cannot act as a parliament: for we are now met by virtue of the last Prorogation, and that prorogation is an order of the king's, point-blank contrary to the two acts of Edw. iii. for the acts say, That a parliament shall 'be holden once within a year,' and the prorogation saith, A parliament shall not be held within a year, but some months after;' and this (I conceive) is a plain contradiction, and consequently that the prorogation is void. Now, if we cannot act as a parliament, by virtue of the last prorogation, I beseech year lordships, by virtue of what else can we art? shall we act by virtue of the king's proclamation? pray, my lords, how so? is a Proclamation of more force than a Prorogation? or if a thing that hath been ordered the first time be not valid, doth the ordering it the second time make it good in law? I have heard, indeed, That two negatives make an affirmative;' but I never heard before, that two nothings ever made any thing.'-Well, but how then are we met? is it by our own adjournment? I suppose no body has the confidence to say that: which way then is it? do we meet by accident? That, I think, may be granted, but an acciden tal meeting can no more make a parliament, than accidental clapping a crown upon a man's head can make a king. There is a great deal of ceremony required to give a matter of that moment a legal sanction." The laws have reposed so great a trust, and so great a power in the hands of a parliament, that every circumstance relating to the manner of their electing, meeting, and proceeding, is looked after with the nicest circumspection imaginable. For this reason the king's writs about the summons of parliament are to be issued out verbatim, according to the form prescribed by the law, or else that parliament is void and null. For the same reason, if a parliament summoned by the king's writ, do not meet the very same day that it is summoned to meet upon, that parlia ment is void and null. And, by the same rea son, if parliaments be not legally adjourned, de die in diem, those parliaments must be also void and null.-Oh! but some say, There is nothing in the two acts of Edw. iii. to take away the king's power of prorogation, and therefore the proro gation is good. My lords, under favour, this is a very gross mistake; for, pray examine the words of the act: the act says, "A parliament shall be holden once a year;' now to whom can these words be directed, but to them who are to call a parliament? And who are they but the kings of England? It is very true, this does not take away the king's power of proro guing parliaments, but it most certainly limits it to be within a year. Well, then; but it is said again, if that prorogation be null and void, then things are just as they were before, and time a thing was done illegally, therefore your therefore the parliament is still in being. My lordships should do so again now; though my lords, I confess, there would be some weight lords, under favour, ours is a very different in this, but for one thing, which is, that not case from theirs; for this precedent they menone word of it is true: for if, when the king tion was never taken notice of, and all lawyers had prorogued us, we had taken no notice of will tell you, that a precedent that passes sub the prorogation, there is an impossibility of silentio, is of no validity at all, and will never our meeting and acting any other way. One be admitted in any judicial court where it is may as properly say, that a man that is killed pleaded. Nay, judge Vaughan says, in his by assault is still alive, because he was killed reports, That in cases which depend upon unlawfully, as that the parliament is still alive, fundamental principles, for which demonstrabecause the prorogation was unlawful. The tions may be drawn, millions of precedents next argument that those are reduced to, who are to no purpose.' Oh! but, say they, you would maintain this to be yet a parliament, is, must think prudentially of the inconveniencies that the parliament is prorogued sine die, and which will follow upon it: for if this be allowtherefore the king may call them again by pro- ed, all those acts which were made in that sesclamation. In the first part of this proposition sion of parliament will be then void. WheI shall not only agree with them, but also do ther that be so or no, I shall not now exathem the favour to prove, that it is so in the mine; but this I will pretend to say, that no eye of the law, which I never heard they have man ought to pass for a prudential person, who yet done; for the statutes say, That a parli- only takes notice of the inconveniencies of ament shall be holden once in a year;' and the one side. It is the part of a wise man to exaprorogation having put them off till a day with- mine the inconveniencies of both sides, to out the year, and consequently excepted against weigh which are the greatest, and to be sure by the law, that day, in the eye of the law, is to avoid them: and, my lords, to that kind of no day at all, that is, sine die; and the proro- examination I willingly submit this cause, for gation might as well have put them off till so I presume it will be easy for your lordships to many months after dooms-day; and then, I judge which of these two will be of the most think, no body would have doubted, but that dangerous consequence to the nation; either had been a very sufficient dissolution.-Be- to allow that the statutes made in that partisides, my lords, I shall desire your lordships to cular session, in queen Eliz.'s time, are void, take notice, that, in former times, the usual (which may easily be confirmed by a lawful way of dissolving parliaments was to dismiss parliament) or to lay it down for maxim, 'That them sine die; for the king, when he dissolved the kings of England, by a particular Order them, used to say no more, but that he de- of theirs, have power to break all the laws of sired them to go home, till he sent for them England when they please.'-And, my lords, again, which is a dismission sine die. Now if with all the duty we owe to his majesty, it is no there were 40 ways of dissolving parliaments, disrespect to him to say, that his maj is bound if I can prove this parliament has been dis-up by the laws of England; for the great king solved by any one of them, I suppose there is of Heaven and Earth, God Almighty himself, no great need of the other 39. Another thing, is bound by his own decrees: and what is an which they much insist upon, is, that they have act of parliament, but a decree of the king, found out a precedent in queen Elizabeth's made in the most solemn manner it is possible time, when a parliament was once prorogued for him to make it, that is, with the consent three days beyond a year: in which I cannot of the lords and commons? It is plain then, chuse but observe, that it is a very great con- in my opinion, that we are no more a parlia firmation of the value and esteem all people ment; and I humbly conceive, your lordships ever had of the forementioned acts of Edw. ought to give God thanks for it, since it has thus ii. since from that time to this, there can pleased him, by his providence, to take you 'but one precedent be found for the pro- out of a condition wherein you must have been rogning a parliament above a year,' and that entirely useless to his majesty, to yourselves, was but for 3 days neither. Besides, my lords, and the whole nation: for, I do beseech your this precedent is not of a very odd kind of lordships, if nothing of this I have urged were nature; for it was in time of a very great true, what honourable excuse could we find plague, when every body, of a sudden, was for our acting again with the h. of commons? forced to run away one from another; and Except we could pretend such an exquisite art so being in haste, had not leisure to calculate of forgetfulness, as to avoid calling to mind all well the time of the prorogation, though the ap- that passed between us the last session; and pointing it to be within 3 days of the year is unless we could have also a faculty of teachan argument to me, that their design was to ing the same art to the whole nation. What keep within the bounds of the acts of parlia- opinion could they have of us, if it should hapment. And if the mistake had been taken pen, that the very same men, who were so earnotice of in queen Elizabeth's time, I make no nest the last session for having the house of comquestion but she would have given a lawful re- mons dissolved, when there was no question of medy,+Now, I beseech your lordships, what their lawful sitting, should be now willing to more can be drawn from the shewing this pre-join with them again, when without question cedent, but only that because once upon a they are dissolved? Nothing can be more duke's Speech was thought so bold and shocking, by the lords in the ministry, that one of them moved that the duke might be called to the bar: but the earl of Shaftsbury, who was fully prepared, opposed this motion, as improper and extravagant; and did with great courage and sharpness of application, second and enforce the duke of Buckingham's argument; and the earl of Salisbury and the lord Warton fell in briskly on the same side. While one of them was speaking, the duke took a pen and wrote the following Syllogism" It is a maxim in the law of England, that the kings of England are bound up by all the statutes made pro bono publico; that every order or direction of theirs, contrary to the scope and full intent of any such statute, is void and null in dangerous to a king or a people, than that the laws should be made by an assembly, of which there can be a doubt, whether they have a power to make laws or no; and it would be in us inexcusable, if we should overlook this danger, since there is for it so easy a remedy, which the law requires, and which all the nation longs for. The calling a new parliament it is, that only can put his majesty into a possibility of receiving Supplies; that can secure your lordships the honour of sitting in this house like peers, and your being serviceable to your king and country; and that can restore to all the people of England, their undoubted rights of chusing men frequently to represent their grievances in parliament; without this, all we can do would be in vain; the nation may languish a while, but must perish at last: we should be-law: but the last prorogation of the parlia come a burthen to ourselves, and a prey to our neighbours. My motion therefore to your lordships shall be, That we humbly address ourselves to his majesty, and beg of him, for his own sake, as well as for the people's sake, to give us speedily a New Parliament; that so we may unanimously, before it is too late, use our utmost endeavours for his majesty's service, and for the safety, the welfare, and the glory of the English Nation." den * The Answers to this extraordinary Speech were, "That those Acts have not been so understood, nor hath the usage been to regulate the holding of parliaments upon that foot, ever since the laws were made; and it is a rule of law that ancient statutes are to be construed by the general usage. That the words, if need be,' go as well to the holding every year,' as to the more often ;' and, repeating them accordingly, it runs thus: a parliament shall be holevery year, if need be, or more often, if need be; and the king is judge of the need. That it is ridiculous to say the parliament is sine die, when a day stands appointed by the prorogation. And, if the king were by law obliged to hold a parliament every year, and doth it not, but seldomer; it may be construed a misgovernment, or grievance, to be redressed in the ordinary way, by petition, but not to vacate future parliaments, and their acts. And, farther (what is not argumentative, but express) the time of parliamentary vacation is altered by later laws; as the before-quoted Triennial Act Car. i. and 16 Car. ii. which repeals the other. It is thereby enacted, That, hereafter, the sitting and holding of parliaments shall not be intermitted, or deferred, above 3 years;' which amounts to an allowance of a vacation not exceeding 3 years. That parliament had then been continued above 4 years and this question, if it should turn upon the reasoning on the other side, would avoid all the acts of parliament made after the year expired; which would make strange work with the laws of this and other parlia ments. : The Duke's Speech supported by the Lords Shaftsbury, Salisbury, and Wharton.] The North's Examen. p. 65. ment was an order of the king's, contrary to an act of king Edw. iii. made for the greatest common good, viz. the maintenance of all the statutes of England, and for the prevention of the mischiefs and grievances which daily hap pen: Ergo, the last Prorogation of parliament is void and null in law," after which he appealed to the Bishops, whether it was not a true Syllogism; and to the Judges, whether the propositions were not true in law. The four Lords ordered to the Tower.] The debates arose to that height, that all the four lords were ordered to be sent to the Tower, for contempt of the authority and being of the present parliament, there to remain during the pleasure of his majesty and the house of peers. In the mean time the duke of Buckingham took the opportunity of slipping out of the house, while the lord Anglesey was arguing against the committing them. The house finding he had withdrawn himself, were in a rage, and designed to address the king for a Proclamation against him; but the duke foreseeing the event, would not give them so much trouble, and appearing the next day in bis place, the court lords immediately cried out, To the Bar! But his grace, who could readily turn any thing serious into jest, and extri cate himself out of any difficulties, rose up, and said, 'He begged their lordships pardon for retiring the night before: that they very well knew the exact oeconomy he kept in his family, and perceiving their lordships intended he should be some time in another place, he only went home to set his house in order, and was now come to submit to their lordships pleasure,' which was to send him to the Tower, after the earls of Shaftsbury and Salisbury, and the lord Wharton*. *"The duke desired he might have his servants to wait on him, and the first be named was his cook; which the king resented highly, as carrying in it an insinuation of the worst sort. The earl of Shaftsbury made the same demand. But lord Wharton did not ask for his cook. Three of the lords lay in the Tower for some months; but they were set at liberty on their petitioning the king. Lord Shaftsbury would not petition." Burnet. duty (having always had as true loyalty and affection to his majesty's service, as any within these walls, or nation, hath or can have) humweight and moment. That I conceive, before we enter upon any other business, it will be the best way for removing the doubts, which are, or may hereafter, arise, concerning this last prorogation; without letting so tender a matter remain under any doubt or question, and also that it will be the safest and speediest way for satisfying his majesty, with satisfaction to all his people, and that they may be assured of such good laws as shall be made (for his maj. is so gracious, as he accounts as great satisfaction to himself, to give us the good laws we desire of him, as to receive the Supply we shall give him) humbly to present our desires to his majesty, that he will be pleased to dissolve this, and very quickly call another parliament.' For I verily believe, whatsoever he would have in this, may more conveniently, in a very short time, be had,and done in another parliament. Sir, I could present you with several reasons for it, but I humbly crave leave to forbear mentioning them till you please to admit of this my humble motion.* The lords, further to shew their resentment, ordered one Dr. Cary to be brought to the bar of the house, and to be questioned, concerning a Book he had carried to the press, treat-bly to offer my advice in this matter of so great ing of the Illegality of the Prorogation; and because he would not satisfy them in some interrogatories, they fined him 1,000/. for his contempt, and kept him close prisoner till the payment of the money.-Nor did they stop here, but made an order, “That the serjeant at arms attending that house should take into his custody Aaron Smith, and bring him to the bar of the house, there to answer for speaking certain dangerous and seditious words against the being of this present Parliament." And Mr. Smith having upon this absconded, they immediately presented their humble desires to his majesty, "That he would by his royal proclamation strictly charge and command, that the utmost and most effectual endeavours should be used for apprehending the person of the said Aaron Smith, and bring him before the said house of peers (if the parliament should be sitting at the time of his apprehension) or in case the parliament should not be then sitting, before one of his majesty's principal secretaries of state, to the intent that the said Aaron Smith might be secured, in order to his appearance before the house of peers, to answer for his said offence." To which his majesty complied by a proclamation issued out two or three days after the parliament broke up. And it is believed, the more effectually to chastise him and other like offenders, that the parliament was this year continued by adjournments rather than by prorogation, as was most commonly practised. Debate in the Commons on the long Prorogation.] Feb. 15. Mr. Sec. Williamson said, When the king's Speech has been read, it bas usually some place given it; and would have it considered the first thing after reading a Bill. Sir Tho. Lee cares not how soon the king's Speech is taken into consideration, but would not lose the method and order of parliament. You always begin with reading a Bill. The king's Speech is usually about Supply, and that ought to be the last thing considered here. He takes this occasion to put in a claim to method. He is transported with the king's Speech as much any man; but would keep method. Sir Philip Monckton. No man is more rejoiced to see you here, than he is. It would be a great satisfaction to the nation to have the two Acts of Edw. iii, about annual Parliaments, cleared; and moves it. Sir John Morton. Would do all things regularly. Would first read a bill, and then consider the king's Speech. Sir Tho. Meres. Though forms seem but little things, yet they are of great consequence. He will thank the king as much as any man. When a Bill is read, then we are fit for any motion. Lord Cavendish. The motion is of no light nature, since we are told it is a doubt, all over the nation, whether the Prorogation be legal: thinks it not for our credit to pass it over without a question. Though the doubt inay easily be removed, yet it is fit to be removed. We are told of two Acts of Edw. iii. and this Prorogation is contrary to them. Desires, that, since these acts are known, we may see how far these acts limit the king in his Prorogation. Moves for a question, Whether the two Acts mentioned be repealed, or not. Mr. Sec. Coventry moves to order. If you admit that question, you may lay down your mace, you are no more a parliament. Who shall dissolve it? Who shall end it? We have nothing to do here. Mr. Sec. Coventry. Nobody opposes the eonsideration of the king's Speech, but because of custom of respect. As the king speaks to us, so we to him, without compliment. There are all things in the king's Speech that can be Lord Cavendish desires to explain himself. spoken of in this house, Religion and Pro-Moves to order; to clear a doubt. There are perty, &c. Would look upon the genus books printed of an odd nature. Moves only before the species: supposes thanks to the to know, Whether those two Acts, mentioned, king, with due consideration of his Speech, are in force against the king's prerogative. very proper. Sir John Mallet. Mr. Speaker; since we were last in this place, there having been much discourse abroad, and some considerable doubts * concerning our coming hither again, it is my Serj. Maynard. The question determines what you cannot determine, viz. That you are *The above Speech was given to the Compiler (Mr. Grey) by sir John Mallet himself. an unlawful assembly. The question will be, Whether, as a parliament, you cannot dissolve yourselves. No question, Whether those laws are in force, or not, can be put; for you read the very question as a parliament. Sir Harbottle Grimstone, (Master of the Rolls.) If we appear here in either capacity, by the proclamation, or by the king's writ, it does not therefore follow, that because we appear, we are a parliament. [Being called upon to look towards the Chair, when he spoke, he said, 'He had almost forget the Chair, it was so long since he saw it.'] If by freedom of debate we may obviate doubts, which have troubled worthy and learned men, why should we not? He denies Maynard's logic, That the king's proclamation will justify our assembly,' though we had no more to show for it on the table. This may be a question somewhere else, as well as here, and would remove moot points and doubts in succeeding parliaments. Mr. Sacheverell doubts not but we are as much a parliament, as at our last prorogation, and believes that gentlemen, upon debate of it, will be as fully satisfied in the matter as he is. He looks upon this prorogation as illegal, but yet that it is a good parliament still, and that we properly stand upon an adjournment. Would look back to the time those statutes mentioned were made in, and you shall see then Prorogations and Adjournments were all one, and for hundreds of years they went on to the same business they left, without beginning again as we have done in adjournments in, later times. There have been prorogations before the parliament had once met, and for some reasons, as the king being detained by business, that he could not in person open this parliament, or for want of a full appearance of members, put off to a longer day. In E. i. E. iii. E. iv. it runs thus. Sic Dom. Rex adjournavit et prorogavit,' &c. And he takes this to be an adjournment. Adjournment is the act of the two houses, prorogation of the king only; and so by adjournment, your business remains where it did. Sir Rob. Howard. You are upon the most dangerous debate that may be, and from which no good consequence can arise. If we meet upon an adjournment now, then all privileges of members stand good, and you lay all people by the heels that have arrested any of your members. If you debate upon deducible arguments, you set the town at work, and enter the lists, at the coffee-houses. If you run once to countenance great things by deducible arguments, you shake laws and mighty things. Moves to lay aside this dangerous debate. Mr. Sawyer. You ought to begin the session with reading a Bill, and you meet in no capacity but as a parliament, not as a Convention. Your vote will not mar nor mend the matter. There have been books written about this Speaker of the parliament that restored the King. He died in 1684, aged 82. question. He hopes you will not give countenance to such libels, that say, we are traitors in meeting, and acting as a parliament'.* *It is remarkable" says Mr. Marvell, "that shortly after, upon occasion of a discourse among the commons concerning Libels and Pamphlets, first one member of them stood up, and, in the face of their house, said, 'That it was affirmed to him, by a person that might 'be spoke with, that there were among them 30, 40, 50, God knows how many, outlawed.' Another thereupon rose, and told them, It was reported too, that there were divers of 'the members Papists:' a third, • That a multitude of them were bribed, and Pensioners.' And yet all this was patiently hushed up by their house, and digested, being, it seems, a thing of that nature which there was no reply to." Under the head of BRIBERY, the same Author gives us the following dreadful particulars: "It is too notorious to be concealed, that near a third part of the house have beneficial Offices under his majesty, in the privy council, the army, the navy, the law, the household, the revenue both in England and Ireland, or in attendance on his majesty's person. These are all of them indeed to be esteemed gentlemen of honour, but more or less according to the quality of their several employments under his majesty; and it is to be presumed that they brought along with them some honour of their own into his service at first, to set up with. Nor is it fit that such an assembly should be destitute of them to inform the commons of his majesty's affairs, and commumunicate his counsels, so that they do not by irregular procuring of elections in places where they have no proper interest, thrust out the gentlemen that have, and thereby disturb the several counties; nor that they crowd into the house in numbers beyond modesty, and which instead of giving a temper to their deliberations, may seem to affect the predominance. -Yet common discretion would teach them not to seek after, and ingross such different trusts in those bordering interests of the king and country, where from the people they have no legal advantage, but so much may be gained by betraying them. How improper would it seem for a privy counsellor, if in the house of commons he should not justify the most arbitrary proceedings of the Council Table, represent affairs of state with another face, defend any misgovernment, patronize the greatest offenders against the kingdom, even though they were too his own particular enemies, and extend the supposed prerogative on all occasions, to the detriment of the subject's certain and due liberties? What self-denial were it in the learned council at law, did they not vindicate the misdemeanours of the Judges, perplex all remedies against the corruptions and encroachment of Courts of Judicature, word all acts towards the advantage of their own profession, palliate unlawful elections, ex |