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The question then remains, whether these statutes have been since repealed by any other statutes or no?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 above mentioned statutes of Edward III. for parliaments having areen omitted to be called every year, according to thwe 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 Ed. ward III. then the third year the people should meet of themselves, without any writs at all, and choose their parliament men. This way of the people's choosing 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parliament of themselves being thought disrespectful to the king, a statute was made in this last parliament, which repealed the triennial bill, and after the repealing clause, (which took notice only of the triennial bill, made in the last king's reign,) there was in this statute a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 ancient statutes of the realm, made in the reign of Edward III. parliaments are to be held very often, it should be enacted, that within three years after the determination of that present parliament, parliaments should not be discontinued above three years at most; and to be holden oftener if need required. There have been several half kind of arguments drawn out of these triennial bills, against the statutes of Edward 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 somebody 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 re. pealed 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, or Edward 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 tallagion 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 Edward 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 your lordships, by virtue of what else can we act ? 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 nobody has the confidence to say that which way then is it? Do we meet by accident ? That, I think, may be granted; but an accidental 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 parliament is void and null. And, by the same reason, 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 Edward III. to take away the king's power of prorogation, and therefore prorogation is good. . My lords, urder 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 proroguing 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 therefore the parliament is still in being. My lords, I confess there would be some weight in this, but for one thing, which is, that not one word of it is true. For if, when the king had prorogued us, we had taken no notice of the prorogation, there is an impossibility of our meeting and acting any other
way: one may as properly say, that a man that is killed by assault is still alive, because he was killed unlawfully, as that the parliament is still alive, because the prorogation was unlawful The next argument that those are reduced to, who would maintain this to be yet a parliament is, that the parliament is prorogued, sine die; and, therefore, the king may call them again by proclamation. In the first part of this proposition, I shall not only agree with them, but also do them the favour to prove, that it is so in the eye of the law; which I never heard they have yet done : for the statutes say, That a parliament shall be holden once in a year, and the prorogation having put them off till a day without the year, and consequently excepted against by the law, that day, in the eye of the law, is no day at all; that is, sine die ; and the prorogation might as well have put them off till so many months after dooms-day; and then, I think, no body would have doubted but that had been a very sufficient dissolution.
Besides, my lords, I shall desire your lordships to take notice, that, in former times, the usual way of dissolving parliaments was, to dismiss them, sine die ; for the king when he dissolved them, used to say no more, but that he desired them to go home, till he sent for them again ; which is a dismission, sine die. Now, if there were forty ways of dissolving parliaments, if I can prove this parliament has been dissolved by any one of them, I suppose there is no great need of the other thirty-nine. Another thing which they much insist upon is, that they have found out a precedent in queen Elizabeth's time; when a parliament was once prorogued three days beyond a year; in which I cannot choose but observe, that it is a very great confirmation of the value and esteem all people ever had of the forementioned acts of Edward Ill. since, from that time to this, there can but one precedent be found for the proroguing of parliament above a year; and that was but for three days neither. Besides, my lords, this pre
cedent is of a very odd kind of nature, for it was in time of a very great plague, when every body of a sudden was forced to run away one from another; and so being in haste, had not leisure to calculate well the time of the propogation, though the appointing it to be within three days of the year is no argument to me that their design was to keep within the bounds of the acts of parliament. And if the mistake had been taken notice of in queen Elizabeth's time, I make no question but she would have given a lawful remedy.
Now I beseech your lordships what more can be drawn from the shewing this precedent, but only that because once upon a time a thing was done illegally, therefore your lordships should do so again now. Though my lords, under favour, ours is a very different case from theirs, for this precedent they mention was never taken notice of; and all lawyers will tell you that a precedent that passes sub silentio is of no validity at all, and will never be admitted in any judicial court where it is pleaded; nay, judge Vaughan says in his reports, that in cases which depend upon fundamental principles, for which demonstrations may be drawn, millions of precedents are to no purpose.
Oh! but say they, you must think prudentially of the inconveniences which will follow upon it; for if this be allowed, all those acts which were made in that session of parliament will be then void. Whether that be so or not, I shall not now examine ; but this I will pretend to say, that no man ought to pass for a prudential person, who only takes notice of the inconveniences of one side. It is the part of a wise man to examine the inconvenience of both sides, to weigh which are the greatest, and to be sure to avoid them; and my lords, to that kind of examination I willingly submit this case, for I presume it will be easy for your lordships to judge which of these two will be of the most dangerous consequence to the nation ; either to allow that the statutes made in that particular session in queen Elizabeth's time are void, (which may