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true, that he is most certainly a knave who takes himself to be so. Nobody is answerable for more understanding than God Almighty has given him; and therefore, though I should be in the wrong, if I tell your lordships truly and plainly what I am really convinced of, I shall behave myself like an honest man: for it is my duty, as long as I have the honour to sit in this house, to hide nothing from your lordships, which I think may concern his majesty's service, your lordships interest, or the good and quiet of the people of England. The question, in my opinion, which now lies before your lordships, is not what we are to do, but whether at this time we can do any thing as a parliament; it being very clear to me that the parliament is dissolved: and if, in this opinion, I have the misfortune to be mistaken, I have another misfortune joined to it; for I desire to maintain the argument with all the judges and lawyers in England, and leave it afterwards to your lordships to decide whether I am in the right or no. This, my lords, I speak not out of arrogance, but in my own justification, because if I were not thoroughly convinced that what I have now to urge, is grounded upon the fundamental laws of England, and that the not pressing it at this time might prove to be of a most dangerous consequence, both to his maj. and the whole nation, I should have been loth to start a notion, which perhaps may not be very agreeable to some people. And yet, my lords, when I consider where I am, whom I now speak to, and what was spoken in this place about the time of the Prorogation, I can hardly believe what I have to say will be distasteful to your lordships.-I remember very well, how your lordships were then displeased with the house of commons; and I remember too as well, what reasons they gave to you to be so. It is not so long since, but that I suppose your lordships may call to mind, that, after several odd passages between us, your lordships were so incensed, that a motion was made here for an Address to his majesty, about the Dissolution of this Parliament (p. 802.); and though it failed of being carried in the affirmative by two or three voices, yet this in the debate was remarkable, that it prevailed with much the major part of your lordships that were here present; and was only overpowered by the Proxies of those lords who never heard the arguments. What change there has been since, either in their behaviour, or in the state of our affairs, that should make your lordships change your opinion, I have not yet heard. And therefore if I can make it appear (as I presume I shall) that by law the parliament is dissolved, I presume your lordships ought not to be offended at me for it.-I have often wondered, how it should come to pass that this house of commons, in which there are so many honest, and so many worthy gentlemen, should yet be less respectful to your lordships, as certainly they have been, than any house of commons that were ever chosen in England; and VOL. IV.

yet if the matter be a little enquired into, the reason of it will plainly appear. For, my lords, the very nature of the house of commons is changed; they do not think now that they are an assembly that are to return to their own homes and become private men again (as by the laws of the land, and the antient constitution of parliaments they ought to be) but they look upon themselves as a standing senate, and as a number of men picked out to be legislators for the rest of their lives. And if that be the case, my lords, they have reason to believe themselves our equals. But, my lords, it is a dangerous thing to try new experiments in a government: men dɔ not foresee the ill consequences that must happen, when they go about to alter those essential parts of it upon which the whole frame depends, as now in our case, the customs and constitutions of parliament: for all governments are artificial things, and every part of them has a dependence one upon another. And with them, as with clocks and watches, if you should put great wheels in the place of little ones, and little ones in the place of great ones, all the movements would stand still: so that we cannot alter any one part of a government without prejudicing the motions of the whole.-If this, my lords, were well considered, people would be more cautious how they went out of the old, honest, English way and method of proceeding. But it is not my business to find fault, and therefore, if your lordships will give me leave, I shall go on to shew you why, in my opinion, we are at this time no parliament. The ground of this opinion of mine is taken from the antient and unquestionable statutes of this realm; and give me leave to tell your lordships, by the way, that statutes are not like women, for they are not one jot the worse for being old. The first statute that I shall take notice of, is that in the 4th of Edw. iii. c. 14. thus set down in the printed book: item, It 'is accorded that a Parliament shall be holden every year once, and more often, if need be.' Now, though these words are as plain as a pike staff, and no man living, that is not a scholar, could possibly mistake the meaning of them, yet the grammarians of those days did make a shift to explain, that the words, if need be' did relate as well to the words every year once,' as to the words more often; and so by this grammatical whimsey of theirs have made this statute to signify just nothing at all. For this reason, my lords, in the 36th of the same king's reign, a new act of parliament was made, in which those unfortunate words,' if need be," are left out, and that act of parliament relating to Magna Charta, and other statutes, made for the public good. Item,' For main'tenance of these Articles and Statutes,and the Redress of divers Mischiefs and Grievances, which daily happen, a Parliament shall be hol'den every year,' as at other time was ordained by another statute. Here now, my lords, there is not left the least colour or shadow for mistake, for it is plainly declared, that the kings 3 G

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of England must call a parliament once within | raise money when they please, but also take a year; and the reasons why they are bound to away any man's estate when they please, and do so, are as plainly set down, namely, for deprive every one of his liberty, or life, as they the maintenance of Magna Charta, and other please.--This, my lords, I think, is a power statutes of the same importance, and for pre- that no judge or lawyer will pretend the kings venting the mischiefs and grievances which of England to have; and yet this power must daily happen.'--The question then remaineth, be allowed them, or else we that are met here Whether these statutes have been since repeal- this day cannot act as a parliament: for we ed by any other statutes or no? The only sta- are now met by virtue of the last Prorogation, tutes I ever heard mentioned for that, are the and that prorogation is an order of the king's, two Triennial Bills, the one made in the last point-blank contrary to the two acts of Edw. king's, and the other in this king's reign. The iii. for the acts say, That a parliament shall Triennial bill, in the last king's reign, was 'be holden once within a year,' and the proromade for the confirmation of the two above-gation saith, A parliament shall not be held mentioned statutes of Edw. iii. for parliaments within a year, but some months after;' and having been omitted to be called every year this (I conceive) is a plain contradiction, and according to those statutes, a statute was made consequently that the prorogation is void. in the last king's reign to this purpose, That Now, if we cannot act as a parliament, by virif the king should fail of calling a parliament, tue of the last prorogation, I beseech your according to the statutes of Edw. iii.' then the lordships, by virtue of what else can we act? third year the people should meet of them- shall we act by virtue of the king's proclamaselves, without any writs at all, and chuse their tion? pray, my lords, how so? is a Proclamaparliament-men. This way of the people's tion of more force than a Prorogation? or if a chusing their parliament of themselves, being thing that hath been ordered the first time be thought disrespectful to the king, a statute was not valid, doth the ordering it the second time made in this last parliament, which repealed make it good in law? I have heard, indeed, the Triennial bill; and after the repealing That two negatives make an affirmative;' but Clause (which took notice only of the Triennial I never heard before, that two nothings ever bill made in the last king's reign) there was in made any thing.'-Well, but how then are we this statute a paragraph to this purpose: That met? is it by our own adjournment? I suppose because, by the antient statutes of the realm, no body has the confidence to say that: which made in the reign of Edw. iii. parliaments way then is it? do we meet by accident? are to be held very often, it should be enacted, That, I think, may be granted, but an accidenthat within 3 years after the determination of tal meeting can no more make a parliament, that present parlian ent, parliaments should than accidental clapping a crown upon a man's not be discontinued above 3 years at most, head can make a king. There is a great deal and be holden oftener if need required.' of ceremony required to give a matter of that There have been several half kind of argu- moment a legal sanction. The laws have rements drawn out of these Triennial bills, against posed so great a trust, and so great a power in the statutes of Edw. iii, which I confess I could the hands of a parliament, that every circumnever remember, nor indeed those that urged stance relating to the manner of their electing, them to me ever durst own: for they always meeting, and proceeding, is looked after with laid their faults upon some body else, like ugly, the nicest circumspection imaginable. For foolish children, whom, because of their defor- this reason the king's writs about the summons mity and want of wit, the parents are ashamed of parliament are to be issued out verbatim, of, and so turn them out on the parish.-But, according to the form prescribed by the law, my lords, let the arguments be what they will, or else that parliament is void and null. For I have this short Answer to all that can be the same reason, if a parliament summoned by wrested out of these Triennial bills, That the the king's writ, do not meet the very same day first Triennial bill was repealed, before the that it is summoned to meet upon, that parliamatter now disputed of was in question; and ment is void and null. And, by the same reathe last Triennial bill will not be in force till son, if parliaments be not legally adjourned, de the question be decided, that is, till the parlia- die in diem, those parliaments must be also void ment is dissolved.' The whole matter, my and null.-Oh! but some say, There is nothing lords, is reduced to this short dilemma; either in the two acts of Edw. iii. to take away the king's the kings of England are bound by the acts power of prorogation, and therefore the proroabove-mentioned of Edw. ii. or else the whole gation is good. My lords, under favour, this government of England by parliaments, and by is a very gross mistake; for, pray examine the the laws above, is absolutely at an end: for if words of the act: the act says, A parliament the kings of England have power, by an order shall be holden once a year;' now to whom of theirs, to invalidate an Act made for the can these words be directed, but to them who maintenance of Magna Charta, they have also are to call a parliament? And who are they power, by an order of theirs, to invalidate but the kings of England? It is very true, this Magna Charta itself; and if they have power, does not take away the king's power of proroby an order of theirs, to invalidate the statuteguing parliaments, but it most certainly limits itself, de Tallagio non concedendo, then they it to be within a year. Well, then; but it is may not only, without the help of a parliament, said again, if that prorogation be null and void,

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time a thing was done illegally, therefore
lordships should do so again now; though my
lords, under favour, ours is a very different
case from theirs; for this precedent they men-
tion 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 demonstra-
tions may be drawn, millions of precedents
are to no purpose.' Oh! but, say they, you
must think prudentially of the inconveniencies
which will follow upon it: for if this be allow-
ed, all those acts which were made in that ses-
sion of parliament will be then void. Whe-
ther that be so or no, I shall not now exa-
mine; but this I will pretend to say, that no
man ought to pass for a prudential person, who
only takes notice of the inconveniencies of
one side. It is the part of a wise man to exa-
mine the inconveniencies 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 cause, 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 parti-
cular session, in queen Eliz.'s time, are void,
(which may easily be confirmed by a lawful .
parliament) or to lay it down for maxin, That
the kings of England, by a particular Order
of theirs, have power to break all the laws of
England when they please.'-And, my lords,
with all the duty we owe to his majesty, it is no
disrespect to him to say, that his maj is bound

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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 thein 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 40 ways of dissolving parliaments, 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 mauner 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 iii. 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 rogaing 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

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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 law: but the last prorogation of the parliament 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 happen: 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.

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 become 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."

6

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 his place, the court lords immediately cried out, To the Bar! But his grace, who could readily turn any thing serious into jest, and extricate 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 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 holden every 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 *"The duke desired he might have his upon the reasoning on the other side, would servants to wait on him, and the first he namavoid all the acts of parliament made after ed was his cook; which the king resented the year expired; which would make strange highly, as carrying in it an insinuation of the work with the laws of this and other parlia-worst sort. The earl of Shaftsbury made the

ments.

The Duke's Speech supported by the Lords Shaftsbury, Salisbury, and Wharton.] The

North's Examen. p. 65.

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.

The lords, further to shew their resentment, duty (having always had as true loyalty and ordered one Dr. Cary to be brought to the bar affection to his majesty's service, as any within of the house, and to be questioned, concern- these walls, or nation, hath or cau have) huming a Book he had carried to the press, treat-bly to offer iny advice in this matter of so great ing of the Illegality of the Prorogation; and weight and moment. That I conceive, before because he would not satisfy them in some we enter upon any other business, it will be interrogatories, they fined him 1,000l. for his the best way for removing the doubts, which contempt, and kept him close prisoner till the arc, or may hereafter, arise, concerning this payment of the money.-Nor did they stop last prorogation; without letting so tender a here, but made an order, "That the serjeant matter remain under any doubt or question, at arms attending that, house should take and also that it will be the safest and speediest into his custody Aaron Smith, and bring him way for satisfying his majesty, with satisfaction to the bar of the house, there to answer for to all his people, and that they may be assured speaking certain dangerous and seditious of such good laws as shall be made (for his words against the being of this present Parlia- maj. is so gracious, as he accounts as great ment." And Mr. Smith having upon this ab- satisfaction to himself, to give us the good laws sconded, they immediately presented their we desire of him, as to receive the Supply we humble desires to his majesty, "That he would shall give him) humbly to present our desires by his royal proclamation strictly charge and to his majesty, that he will be pleased to command, that the utmost and most effectual dissolve this, and very quickly call another endeavours should be used for apprehending parliament.' For I verily believe, whatsoever the person of the said Aaron Smith, and bring he would have in this, may more conveniently, him before the said house of peers (if the par- in a very short time, be had and done in anoliament should be sitting at the time of his ap- ther parliament. Sir, I could present you with prehension) or in case the parliament should several reasons for it, but I humbly crave not be then sitting, before one of his majesty's leave to forbear mentioning them till you principal secretaries of state, to the intent that please to admit of this my humble motion.* 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.

Mr. Sec. Coventry. Nobody opposes the consideration 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 spoken of in this house, Religion and Property, &c. Would look upon the genus before the species: supposes thanks to the king, with due consideration of his Speech, 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

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.

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Lord Cavendish. The motion is of no light fature, 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 may 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.

Lord Cavendish desires to explain himself. Moves to order; to clear a doubt. There are books printed of an odd nature. Moves only to know, Whether those two Acts, mentioned, are in force against the king's prerogative.

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.

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