Appendix
On the long prorogation

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History of Parliament Trust

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Author

Anchitell Grey

Year published

1769

Pages

55, 56, 57, 58, 59, 60, 61, 62

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'Appendix: On the long prorogation', Grey's Debates of the House of Commons: volume 4 (1769), pp. 55-62. URL: http://british-history.ac.uk/report.aspx?compid=40385 Date accessed: 30 October 2014.


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APPENDIX.

This long Prorogation of fifteen months occasioned at that time much disquiet, and produced the following arguments, which it has been thought proper to annex. It does not appear who was the Author.

The Question is, Whether a Prorogation of the Parliament extended beyond twelve months, be not, in construction of law, dissolution.

IT seems evidently that the law cannot intend one thing, and, at the same time, permit another to be legal, which destroys its own purpose and intent. Wherefore if there be laws in force which intend and require the yearly sitting of Parliament, the law cannot admit of Prorogation exceeding the compass of a year, for that were to make the law felo de se and to divest itself of capacity to take effect, or to be executed, since during a Prorogation, which is legal, no other Parliament can be called. The law cannot contradict itself, and if it requires the sitting of a Parliament within a year, then the not sitting of a Parliament within a year, must be contrary to law; and so a Prorogation above a year must be illegal. But if a Prorogation beyond a year be illegal, it follows that it is no Prorogation, but a discontinuance, or dissolution, of such Parliament, so prorogued, in the same manner as an illegal commission is no commission. For since Parliaments sit by the King's writ, and since the force and power of those writs must have a legal continuance, to keep and preserve the Parliament in being, (as appears in the case of adjournments) therefore when a Prorogation ceases to be legal, the legal continuance of the Parliament also ceases, and so there is a discontinuance, viz. a dissolution. I think that we may take it for granted, that if these laws of Edw. III. which require the annual calling of Parliaments, be still in force, then a Prorogation exceeding the compass is a discontinuance, or dissolution. It remains, therefore, to see whether those laws of Edw. III. be still in force, and that they are so, appears, because they have not yet been repealed by any subsequent Act of Parliament.

We need not much insist upon the Act 16 Charles I. for triennial Parliaments, because that Act is repealed by Charles II, but we may affirm that that Act of Charles I. does no way repeal the laws of Edw. III. but it rather puts the King upon a necessity of executing that trust in a reasonable time, which was incumbent upon him by the laws of Edw. III. And this, perhaps, was done (though in a way indecent to the Crown) because former Kings had not well executed their trust, in calling Parliaments accordingly; and here, by the way, we may observe the different manner of the law, towards the King, and towards the Subject, for when the law requires any thing to be done, by the subject, it commonly annexes a penalty for the not doing of it, but when the law requires the King to do any thing, (in respect to his Majesty) it is without a penalty, and in the nature of a trust; but yet the law requires the performance of the thing enacted equally from them both.

The Act then in force concerning this matter of calling Parliaments is the 16th Cha. II. which, in the first place, repeals that of Cha. I. and, by the way, gives us a very good precedent, showing how an Act of Parliament ought to be repealed. In the next place it recites, and (we may say) confirms the laws of E. III. in these words. "And, because, by the ancient Laws and Statutes of this Realm, made in the reign of K. Edw. III. Parliaments are to be held very often, &c." Here we are to observe that by the present tense "are" these laws of Edw. III. are affirmed still to be laws, for had the Parliament intended or understood those laws to be repealed, they would certainly have said "were," and not "are to be held" &c. This seems to be a judgment in the case, and a judgment of the highest nature; for who can presume to say those are no laws, which the Parliament calls "the ancient Laws and Statutes of this Realm?"

This alone is evident against all that can be said to prove that K. Edward's laws, by a long disuse, were obsolete, and antiquated; but, for farther satisfaction, it is answered, that a law, or trust imposed by a law, is not therefore abrogated, because it is not broken, or not executed. How often has Magna Charta been broken since it was made, yet that does not at all invalidate the force of it, no more than the not affixing a penalty to a law does make the law less binding; since no penalty, nor constraint neither, is affixed to Magna Charta; besides, it may be said, that no prescription lies against the whole Kingdom, any more than against the King, and that in the general maxims, Nullum tempus occurrit regi nec ecclesiæ, and under the word regi, respublice is also included. Since in a Government, especially monarchial, and essentially free, the head is never to be taken without the body, nor the body without the head; because that either, separately taken, would be a monster. So that prescription only lies against particular persons, or communities. And, lastly, against the plea of prescription it is answered, that although these laws of E. III. have not been duly executed to save a prescription against them, yet Parliaments have ever since been sitting much within the compass of 60 years, and every sitting of Parliament is an executing in part that trust which the law of E. III. imposed upon the King. Else, in the case of a yearly rent, demanded upon an ancient deed produced in Court, if it be proved, that the rent has been often paid within memory, though not duly and yearly, the rent will be still due in law, and no prescription will lie against it.

It may be objected, that, according to the maxims, Leges posteriores priores contrarias abrogant, the last part of this Act of Cha. II. wherein 'tis enacted, "that Parliaments shall be held at least every three years," Is contrary to those of E. III. which say "that Parliaments shall be called yearly," and therefore repeals them. Now to this the answer is plain; that there is no contrariety in all those laws, because all of them, at once, may be executed. For if the King shall call Parliaments yearly, the Act of Cha. II. is no less exempted than the Acts of E. III. Besides, this last part of the Act of Cha. II. is not exemptable, nor does it take effect till after the expiration of this present Parliament, which clearly appears in the very letter of the Act, wherein the word "hereafter," in the enacting part of that law, has a reference to the subsequent words, "within three years from and after the determination of this present Parliament."

We shall close this discourse with these three short observations.

First, That no Parliament, that is not antecedently so, can make itself a Parliament by Vote, for every thing must be before it can act, and nothing can be the cause of itself.

Secondly, That nothing can be more prejudicial to the King and Kingdom than to have a Convention under the name of a Parliament.

Thirdly, That a matter of such high importance ought not to be left dubious when it may be made certain.

Reasons to prove the last Prorogation of the Parliament to be illegal.

IT is a fundamental and unquestionable maxim in the law of England, that the Kings of England are so bound by all Statutes made for the public good, that every command, order, or direction of them, contrary to the substance, scope, or intent of any such Statute, is void and null in law.

But the last Prorogation of Parliament is an order, or direction, of the King's, contrary to two Statutes, the one in the 4th, the other in the 36th of Ed. III. made for the greatest and chiefest common good; namely, the maintenance of our laws, and the redress of mischiefs and grievances which daily happen; for they both do positively appoint the meeting of Parliament once within a year, and the King, by this last Prorogation of Parliament, has, contrary to both these Statutes, ordered the Parliament not to meet within a year, but some months after.

Wherefore this last Prorogation of Parliament is void and null in law, and, consequently, the Parliament is at an end, because the Parliament cannot meet by virtue of a Prorogation, which is void and null in law, and because that, by the essential forms of Parliamentary proceedings, the Parliament having been dismissed without any legal Prorogation, or Adjournment, there is an impossibility of its meeting at any other time.

This ought to be seriously considered of by every Englishman, and whether, if any of the Members of the Parliament, begun the eighth day of May, in the year 1661, should act by virtue of this Order of the King's, or Prorogation, they do not admit and justify that particular Order of the King, though contrary to an Act of Parliament, of what importance soever, is yet, notwithstanding, good in law, and thereby allow of what would at once subvert the whole ancient government of England by law. For if a particular Order of the King's, upon this present occasion, about the assembly of a Parliament, contrary to the intent of two laws, enacted for the maintenance of all the Statutes of this realm, can be in force against those two laws; then a particular Order of the King's, upon some other occasion, about the raising of moneys, contrary to the intent of the Act de tallagio non concedendo, and another against the taking away of any man's liberty, estate, or life, contrary to the intent of Magna Charta, must also be in force against those two other laws.

Translation of a Passage out of Knighton's (Canon of Leicester) History of England, entitled, Historiæn Anglicanæ Scriptores Antiqui, page 2680.

KING Richard II. held a Parliament at Westminster, on Monday, being the morrow after the feast of St Jerome, and ended it on the feast of St Andrew. During which, the Earl of Oxford, who also was Marquess of Dublin, was created Duke of Ireland, on the feast of St Edward, King and Confessor. The King for the most part staid loitering at Eltham, whilst the Parliament sat. The Nobles therefore of the Kingdom, and the Commons, with joint assent, sent this message to the King, "That the Chancellor (fn. 1) and Treasurer ‡ ought to be removed from their offices, because they were not for the good of the King and Kingdom, and they had also such matters to treat of with Michael de la Pole, as could not be treated of whilst he remained in the office of Chancellor." The King, incensed hereat, returned his command unto them, "That they should not meddle with such businesses as these, but that they should proceed to the business of Parliament, and hasten to a conclusion;" saying also "that for them he would not remove the meanest scullion in his kitchen out of his place." For the Chancellor, in the name of the King, had desired of the Commons four fifteenths to be paid in one year, and as many tenths from the Clergy, saying, "That the King was so much in debt, that he could not be otherwise freed from his debts, and other burdens, lying upon him, as well upon the account of the war, as of his houshold." But they, by joint consent of Lords and Commons, returned this answer to the King; "That they neither could, not would proceed in any business of Parliament, nor dispatch so much as the least article, till the King came, and showed himself, in his own person, amongst them in Parliament, and would remove the said Michael de la Pole from his office." But the King sent this command again to them, "that they should order forty Knights of the most substantial, and wisest of the Commons, to come unto him, and declare the Votes of all the rest." Then were they more afraid every man for his own safety, for a secret rumour had been spread amongst them, that the death of these forty was designed by treachery; for it was said, as appeared afterwards to them, "that, as these should be brought to speak to the King, a multitude of armed men should assault and kill them; or that being invited to a feast, by the King, some wicked men armed should rush in upon them, and kill them; or that they should be murdered in an instant in their lodgings in London." But Nicholas de Exon, Mayor of the City of London, refusing, and no way in the world consenting to so great a wickedness, the villainy was deferred, annd the heinous contrivance by degrees brought to light. Making use therefore of wholesome advice, they, by common consent of the whole Parliament, sent the Lord Thomas of Woodstock, Duke of Gloucester, and Thomas de Arundel, Bishop of Ely, to the King at Eltham, that they should, on the behalf of the Lords and Commons in Parliament, salute him, and deliver him these Votes in this sense.

Sir King,

"The Prelates, Lords, and whole people of your Commons of Parliament, with most humble submission, recommend themselves to the most excellent****** of your royal dignity, wishing you a successful course of honour, and invincible against the power of your enemies, and the most firm bonds of peace, and hearty love towards your subjects, as well for your own good and advantage, as to God and the salvation of your soul, as for the unspeakable comfort of all the people which you govern, on whose part we intimate these things to you, that we have it granted to us by ancient constitution, by customs praiseworthy and approved, which it will be in vain to gainsay; that our King ought to assemble the Lords, Prelates, and Commons of the Kingdom, once in a year, unto this Parliament, as the highest Court of the Realm, in which all equity ought to be manifest, and clear, without scruple, without spot, as the sun when he is ascending to his meridian, where poor and rich may equally refresh themselves in peace and tranquillity, and find a never failing shelter against all manner of injuries; where grievances are to be redressed, where, with the most deliberate counsel, the state and government of the Kingdom is to be treated of, that the King's and Nation's foes within, and their enemies abroad, may be destroyed and overthrown. Where with more conveniency, with more honour, can this be effected and provided for, and the public want considered, than by found consultation here? In what manner can the necessary burdens of the King and Kingdom be more easily supported? It seems right to them also, since they are to defray the public charges, that they should have their supervisal how, and by whom, their goods and fortunes are laid out. They say moreover, that 'tis their Privilege, by ancient statutes, that, if the King wilfully estrange himself from his Parliament, no infirmity, nor necessary cause, moving him to it, but obstinately, through his ungovernable will, shall absent himself for forty days, as if he did it to vex his people, and wear them out with grievous expences, that, from that time, it shall be lawful for all and every of them, without the consent of the King, to return to their own countries and houses, and there to settle themselves; and yet you have absented yourself for a longer time, and without any cause, that we know of, have refused to appear amongst us."

To this the King.

"Now do I plainly discover that my people and the Commons intend to wrest my power, and are endeavouring to make insurrections against me, and, in such a case, nothing seems better to me, than to call in my Kinsman, the King of France, and from him to ask advice and aid against those contrivers. Nay, even to submit myself to him rather than to my own subjects."

To which they answered thus.

"This counsel is unsafe for you, and rather leads to inevitable destruction; for the King of France is your capital enemy, the greatest and constant adversary of your Kingdom, and if he should once get footing here, would sooner endeavour to despoil you of it, to invade your country, to drive you from your throne, than in the least manner to lend you his sincere assisting hand, if at any time (which God forbid) you should stand in need of it. Rather recall to your mind how E. III. your grandfather, and, in like manner, your father (fn. 2) , a Prince of the same name, with sweat and hazard, during their whole lives, through innumerable labours, indefatigably contended for the conquest of France, which, by hereditary right, appertained to them, and since them, to you, by succession. Remember, how many of the Nobles, what an innumerable part of the Commons of England, as well as those of France, and subjects to either state, lost their lives, or underwent the pain of death in that quarrel. Remember the inestimable goods and chattles, the innumerable sums the Commons of England parted with for the maintenance of this war, and yet (what is more to be lamented) they have, in your time, sustained so many taxes, for the support of your unsuccessful, unnecessary, unjust wars, as that they say they are reduced to such incredible poverty, that they can neither pay their rents for their livings, nor assist their King, nor afford even the necessaries of life for themselves. Thus the kingly power is impoverished, and an unhappy condition brought upon all the great men and Nobles of the Kingdom, as well as the Commonalty weakened and undone. That King cannot be poor who has a rich people, nor that King be rich whose subjects are poor; but these ills not only redound to the King, but to all the Nobility and great men, every one in his rank and degree, and all this is brought to pass by the evil Ministers of the King, who have ill governed both King and Kingdom to this day, and unless we do quickly set our helping hands to the work, and raise the healing prop, the Kingdom of England will, in a less time than we think of, be miserably subverted. But there is one part of our Message remaining on the behalf of your people, to be imparted to you. They have an ancient law, and it was not many ages since experimented, (it grieves us that we must mention it) "that if the King, through any evil counsel whatever, through a foolish obstinacy, or contempt of his people, through a perverse and forward will, or by any irregular courses, shall alienate himself from his people, and refuse to be governed and regulated by the Laws and Statutes of the Realm, by the laudable constitutions and faithful advice of his Parliament; if he shall throw himself headlong into wild designs, and stubbornly adhere to his own irregular and arbitrary will, from that time it shall be lawful for his people, by their full and free assent, to depose that King from his throne, and establish some other of the royal stock upon it;" which grievances and unhappy dissention, that it may never spring up amongst your people, that your people, by no such lamentable divisions (pleasing only to your enemies) may never, through your evil Counsellors, be subverted; and that the Kingdom of England, so honourable, and above all other Nations in the world, from your father's days, hitherto, most famous in war, though now, in your time, through the distractions of ill government, unhappily desolate; that the title and inscriptions of these miseries may never be placed as a scandalous mark upon your reign, and this unhappy age, recall your mind from such foolish counsels, and whosoever they are that suggest such matters to you, not only not listen to them, but wholly remove them from you, for, in event, it will be found that they can no way effectually serve you."

By these, and such kind of speeches, the King, laying aside his anger, was reduced to a better temper, and being pacified, promised "that he would come to his Parliament after three days, and with mature advice willingly acquiesce in their petitions."

The King then came as he had promised, and Lord John de Fortham, Bishop of Durham, was removed from the office of Treasurer, and the Bishop of Hereford made Treasurer. Lord Michael de la Pole, Earl of Suffolk, was, with much disgrace, deposed from the office of Chancellor; and Thomas de Arundel, Bp of Ely, was by consent of Parliament, made Chancellor in his stead.

Footnotes

1 Michael de la Pole, Earl of Suffolk.
John de Fortham Bp of Durham.
2 Edward the Black Prince.