ed. It is worthy of observation, that, during this period, the king was, by every one, abroad and at home, by France and by the allies, allowed to be the undisputed arbiter of Europe; and no terms of peace, which he would have prescribed, could have been refused by either party. Though France afterwards found means to resist the same alliance, joined with England, yet was she then obliged to make such violent efforts as quite exhausted her; and it was the utmost necessity which pushed her to find resources, far surpassing her own expectations. Charles was sensible, that so long as the war continued abroad, he should never enjoy ease at home, from the impatience and importunity of his subjects; yet could he not resolve to impose a peace by openly join-sonable Supply to make my condition more ing himself with either party. Terms advantageous to the allies must lose him the friendship of France: the contrary would enrage his parliament. Between these views, he perpetually fluctuated; and from his conduct, it is observable, that a careless, remiss disposition, agitated by opposite motives, is capable of as great inconsistencies as are incident even to the greatest imbecility and folly." The King's Speech on opening the Session.] Feb. 15, 1676-7. The Parliament met according to prorogation, after a recess of nearly 15 months, when the king opened the session with the following Speech to both houses: "My Lords and Gentlemen; I have called you together again, after a long prorogation, that you might have an opportunity to repair the misfortunes of the last session, and to recover and restore the right use and end of parliaments. The time I have given you to recollect yourselves in, and to consider whither those differences tend which have been so unhappily managed and improved between you, is enough to leave you without all excuse, if ever you fall into the like again. I am now resolved to let the world see, that it shall not be my fault, if they be not inade happy by the consultations in parliament. For I declare myself very plainly to you, that I come prepared to give you all the satisfaction and security in the great concerns of the Protestant Religion, as it is established in the Church of England, that shall reasonably be asked, or can consist with Christian prudence. And I declare myself as freely, that I am ready to gratify you in a further securing of your Liberty and Property (if you can think you want it) by as many good laws as you shall propose, and as can consist with the safety of the government; without which, there wil! neither be liberty nor property left to any man.— Having thus plainly told you what I am ready to do for you, I shall deal as plainly with you again, and tell you what it is I do expect from you. First, I do expect and require from you, that all occasions of Difference between the two houses be carefully avoided; for else, they who have no hopes to prevent your good resolutions, will hope, by this reserve, to hinder them from taking any effect. And let all men judge who is most for arbitrary government, they that foment such Differences as tend to dissolve all parliaments; or I, that would preserve this and all parliaments from being made useless by such dissentions. In the next place, I desire you to consider the necessity of building more Ships, and how much all our safeties are concerned in it. And since the additional Revenue of Excise will shortly expire, you that know me to be under a great burden of Debts, and how hard a shift I am making to pay them off as fast as I can, I hope, will never deny me the continuance of this revenue, and some rcaeasy.---And that you may be satisfied how inpossible it is (whatever some men think) to support the government with less than the present Revenue, you may at any time see the yearly established Charge; by which it will appear, that the constant and unavoidable charge being paid, there will remain no overplus towards the discharging those contingencies which may happen in all kingdoms, and which have been a considerable charge to me this last year. To conclude: I do recommend to you the peace of the kingdom, in the careful prevention of all differences; the safety of the kingdom, in providing for some greater strength at sea; and the prosperity of the kingdom, in assisting the necessary charge and support of the government. And if any of these good ends should happen to be disappointed; I call God and men to witness this day, that the misfortune of that disappointment shall not lie at my doors. The rest I refer to the Chancellor." The Lord Chancellor Finch's Speech.] Then the Lord Chancellor spake as followeth: "My lords; and you the knights, citizens, and burgesses of the house of commons; By the most gracious pleasure of the king, you are here again assembled to hold another session of this parliament, wherein the king expects your advice and your assistance; your advice in matters of the highest deliberation, your assistance in matters of extreme and pressing difficulty. Your deliberations will chiefly be exercised about those things which do belong unto your peace, the peace of the Church and the peace of the State; two considerations of so close a connection between themselves, that in the very original writ of summons, by virtue of which you still sit here, they are jointly recommended to your counsel and your care. The peace of the Church is harder to preserve than the peace of the State; for they that desire innovations in the State most commonly begin the attempt upon the Church. And by this means it comes to pass that the peace of the Church is so often disturbed, not only by those poor mistaken souls who deserve to be pitied, but by malicious and designing men who deserve to be punished. And while things continue in this estate, it cannot be avoided, but that the laws which are necessary to re-theless it remains still to be wished, that even strain the malicious must and will sometimes this very point were no part of those difficuldisquiet and wound those that are weak. What ties we are now to struggle with; for there are Remedies are fit for this disease; whether the many more, which without your aid and your fault be in the laws or in the men, in the men assistance can never be overcome. One is, that should obey, or in the men that should the weakness of our Fleet: for strength and execute; whether the cure be a work of time weakness can no otherwise be judged of than and patience, or of zeal and diligence; or by comparison; and by this measure we may whether any new expedient can be found, to truly judge our fleet to be less considerable secure the ship from that storm which the swell- than it was, because ours stands at a stay, ing of two contrary tides seems to threaten; is while our neighbours round about us are inwholly left to your advice. The king hath proved. This is an affair wherein no time called you for that end, and doubts not but would be lost; because, whenever we set about your counsels will be such as shall tend to safety it, it will take up some considerable time beand to establishment. The peace of the State fore it can be finished.-Another weight there requires as much of your care and vigilance is, which lies very heavy upon the Revenue; too, our peace at home, and our peace abroad. and that is, the Debts which incumber it. As for that abroad, we are at this time, blessed Justice and honour oblige the king not to for. be God for his mercy to us, and blessed be sake those who have assisted with their estates the king for his care of us, in perfect peace in the defence of the public. And although with all the nations upon earth; such a peace the necessary issues of his revenue, in the many as makes us the envy of the Christian world, new and chargeable emergencies of state, did and hath enabled us to do ourselves right against for a while postpone their satisfaction, yet his the Infidels; such a peace as brings with it all maj. bath now gone very far in it, and hath the fruits of peace, and deserves not only our provided for the security and payment of an prayers for the continuance of it, but our best immense sum, with such difficulties as none and most watchful care that nothing may be but a just and generous prince would ever done on our part to give it an interruption, have undergone. And now, should the rest of But then we must consider again, that our his revenue fail, or fail to be unloaden in some peace abroad will not subsist any longer than degree, the inconvenience to the public and while we do maintain our peace at home; for, the insecurity of all our affairs would quickly without this, no kingdom can be able to act in be too manifest.-One difficulty more there its full strength; and without that, the friend-is, without which all the rest were none; and ship or enmity or any nation ceases to be con- that is, the strange diffidence and distrust, siderable to its neighbours.-Now it is a great which, like a general infection, begins to spread and a dangerous mistake in those who think itself into almost all the corners of the land. the peace at home is well enough preserved, Much of this arises from the artifice of ill men, so long as the sword is not drawn; whereas, who create and nourish all the suspicions in truth, nothing deserves the name of peace, which they can devise; but the cure of it lies but unity; such an unity as flows from an un- perfectly in your hands: for all this will preshaken trust and confidence between the king sently vanish, as soon as men shall see your and his people; from a due reverence and acquiescence, and the fruits of it, in a chearobedience to his laws and to his government; ful concurrence with his maj. to all those good from a religious and an aweful care, not to re- and public ends which he hath now so earmove the ancient landmarks, not to disturb nestly recommended to you. It would be those constitutions which time and public con- somewhat strange, and without all example in venience hath settled; from a zeal to preserve story, that a nation should be twice ruined, the whole frame and order of the government twice undone, by the self-same way and means upon the old foundations; and from a perfect the same Fears and Jealousies. Would any detestation and abhorrency of all such as are man, that doth but give himself leave to think, given to change: whatever falls short of this, refuse to enjoy and take comfort in the bles falls short of peace too. If therefore there sings that are present, only for fear of future be any endeavours to renew, nay, if there be changes and alterations? Surely it is enough not all the endeavours that can be to extinguish, for any kingdom, and more than most kingthe memory of all former provocations and of doms in the world can boast of, to have their fences, and the occasions of the like for the affairs brought into such a condition, that they future; if there be such divisions as begets may in all human probability, and unless it be great thoughts of heart; shall we call this their own default, continue for a long time peace, because it is not war, or because men safe and happy. Future contingencies are not do not yet take the field? As well we may capable of any certain prospect; a security call it health, when there is a dangerous fer- beyond that of human probability no nation mentation in the blood and spirits, because the ever did, or ever shall, attain to. If a kingdom patient hath not yet taken his bed. And yet, be guarded by nature against all dangers from as evident as it is that all we have or hope for without, and then will rely too much upon what depends upon the preservation of our peace nature hath done for them; if a kingdom be and unity at home, as certain it is that no care warned and cautioned against all dangers from to preserve it will be wanting here.-Never-within by former experiences, and then will left off, till they had quite distinguished themselves out of all their allegiance. My Lords and Gentlemen; The king hath so long had, and still retains, such honourable thoughts of these assemblies, that we ought to make it one great part of our business to deserve the continuance of his majesty's grace and good opin either forget or make no use of those experiences; if a kingdom be powerful in shipping and navigation, and then see their neighbours endeavouring to overpower them that way, without being solicitous enough to augment and reinforce their own naval strength; if a kingdom be happy in the frequent assemblies of their great councils, where all that is griev-ion. Let no contention then come near this ous may be redressed, and all that is wanting place but that of a noble emulation, who shall may be enacted, and then will render those serve his country best, by well serving of the councils useless and impracticable, by conti- king: let no passion enter here, but that of a nuing endless distractions: who can wonder pious zeal to lay hold upon all opportunities of if their affairs should begin to be less pros- promoting the honour and service of the crown, perous; when otherwise, humanly speaking, till our enemies despair of ever profiting by and in all common probability, their condition any disorders amongst us. And let all who would have been out of the reach of fortune, pray for the long life and prosperity of the and their security in a manner impregnable? king add their endeavours to their prayers; -My Lords and Gentlemen; If the presaging and study to prolong his sacred life, by giving malice of our enemies should pretend to fore-him all the joys of heart which can arise from tel any such fate as this to befal us, the wisdom the demonstrations of the lively and the warm and the magnanimity of this great council will affections of his people." * quickly be too hard for all their auguries. The honour and the loyalty of this august and venerable assembly will leave no kind of room for any such divinations. You that have the happiness to live under so excellent a monarchy, so admirable a constitution, and temper of government; you that remember what the want of this government cost us, and the miserable desolations which attended it; have all the motives, and are under all the obligations, that can be, to secure and advance the interest of it. The king on his part meets you with so open and so full a heart, and is so absolutely resolved and determined to do all that in him lies to glad the hearts of his people, that it must be the strangest infelicity in the world, if either he or his subjects should meet with any disappointments here. For the king hath no desires but what are public; no ends or aims which terminate in himself. All his endeavours are so entirely bent upon the welfare of all his dominions, that he doth not think any man a good subject, who doth not heartily love his country; and therefore let no man pass for a good patriot, who doth not as heartily love and serve his prince. Private men, indeed, are subject to be misled by private interests, and may entertain some vain and slender hopes of surviving the misfortunes of the public: but a prince is sure to fall with it; and therefore can never have any interest divided from it. To live and die with the king, is the highest profession a subject can make; and sometimes it is a profession only, and no more: but in a king it is an absolute necessity, it is a fate inevitable, that he must live and die with his people. Away then with all the vain imaginations of those who labour to infuse a misbelief of the government! away with those illmeant distinctions between the Court and the Country, between the natural and the politic capacity! and let all who go about to persuade others that these are two several interests, have a care of that precipice to which such principles may lead them: for the first men that ever began to distinguish of their duty never "What the king had said so well, the Lord Chancellor, as usual, spoiled by straining to do it better; and, had not the Lord Treasurer used a far more effectual way of persuasion with the commons, there had been the same danger of the ill success of this meeting, as of those before. Concerning his lordship's Applications to Members, sir John Reresby has left us the following Memorial; which, whether it contains the whole truth, or not, let the understanding and impartial reader judge : Having kept my Christmas in the country, I no sooner returned to London, than my Lord Treasurer sent to speak with me. I waited on him therefore, and found him very open in his discourse upon several subjects, but for the most part lamenting that his countrymen would not allow him an opportunity to be of service to them with the king, and making many protestations that the jealousies of those who called themselves of the Country Party, were entirely groundless and without foundation: that to his certaiu knowledge, the king meant no other than to preserve the religion and government by law established; and, upon the whole, wished that neither himself or his posterity might prosper, if he did not speak what he really believed: that if the government was in any danger, it was most from those who pretended such a mighty zeal for it; but who under that pretence were endeavouring to create such discontents between the king and the nation, as might produce confusion in the end; and intreated me to be careful how I embarked myself with that sort of people. My reply was, That I hoped I was not one to be wilfully misled: that I should have no rule to go by in that house but my reason and conscience, and that so I could be of no particular faction or party: that as much as I yet understood of the duty of a member of the house of commons at this time, suggested to me a moderation between the two extremes, and to have an equal regard for the prerogative of the king and the liberty of the subject. True it is, till now, that Debate in the House of Lords on the Question, Whether the Parliament was not dissolved by the Prorogation of 15 Months?*] Instead of entering upon business, as usual, a Question was started in each house, Whether they had any Right to enter upon business at all? in short, Whether they were a Parliament? The Duke of Buckingham's Speech on that Occasion.] As soon as the commons were withdrawn, and a Bill offered to be read, the duke of Buckingham rose up and desired to be heard first; which request being complied with, he moved "That this house would consider, whether this Parliament be not dissolved, 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 Cha. i. for triennial parliaments, because that act is repealed by Cha. ii. but we may the Treasurer used such solemn asseverations, with regard to the king's good intention, and pretty clearly convinced me that some of the chiefs of the Country Party had most at heart their own private interest, whatever they asserted in favour and defence of the public, that I had great notions of the truth and sin-affirm that that act of Cha. i. does no way recerity of the Country Party." p. 36. 37. And again, p. 43. "The session had gone on smoothly and sedately enough in both houses; my Lord Treasurer having so ordered it, that the King's Party encreas'd rather than the other; but it was much feared, that some Votes were obtained more by purchase than affection." Ralph. 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 peal 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 because the Prorogation of this parliament for 15 Months is contrary to the statutes of 4 Ed. iii. and 36 Ed. iii." After which the duke of Buckingham made the following extraordinary Speech:* "My lords; I have often troubled your lordships with my discourse in this house; but I confess I never did it with more trouble to myself, than I do at this time, for I scarce know where I should begin, or what I have to say to your lordships: on the one side, I am afraid of being thought an unquiet and pragmatical man; for, in this age, every man that cannot bear every thing, is called unquiet; and he that does ask questions, for which we ought to be concerned, is looked upon as pragmatical. On the other side, I am more afraid of being thought a dishonest man; and of all men, I am most afraid of being thought so by myself; for every one is the best judge of the integrity of his own intentions; and though it does not always follow, that he is pragmatical whom others take to be so, yet this never fails to be Reasons to prove the last Prorogation of the Parliament to be illegal. that in the general maxims, Nullum tempus occurrit regi nec ecclesiæ,' and under the word "It is a fundamental and unquestionable ' regi, respublica' is also included. Since in a maxim in the law of England, that the kings government, especially monarchical, and essen- of England are so bound by all statutes made tially free, the head is never to be taken with- for the public good, that every command, orout the body, nor the body without the head; der, or direction of them, contrary to the subbecause that either, separately taken, would be stance, scope, or intent of any such statute, is a monster. So that prescription only lies void and null in law. But the last prorogaagainst particular persons, or communities. tion of parliament is an order, or direction, of And, lastly, against the plea of prescription it the king's, contrary to two statutes, the one in is answered, that although these laws of E. iii. the 4th, the other in the 36th of Ed. iii. made have not been duly executed to save a pre- for the greatest and chiefest common good; scription against them, yet parliaments have namely, the maintenance of our laws, and the ever since been sitting much within the com- redress of mischiefs and grievances which daily pass of 60 years, and every sitting of parliament happen; for they both do positively appoint is an executing in part that trust which the the meeting of parliament once within a year, law of E. iii. imposed upon the king. Else, and the king, by this last prorogation of parin the case of a yearly rent, demanded upon liament, has, contrary to both these statutes, an ancient deed produced in court, if it be ordered the parliament not to meet within a proved, that the rent has been often paid with-year, but some months after.-Wherefore this in memory, though not duly and yearly, the last prorogation of parliament is void and null rent will be still due in law, and no prescrip- in law, and, consequently the parliament is at tion will lie against it.-It may be objected, an end, because the parliament cannot meet that, according to the maxims, Leges poste- by virtue of a prorogation, which is void and riores priores contrarias abrogant, the last null in law, and because that by the essential part of this act of Cha. ii. wherein it is enact-forms of parliamentary proceedings, the pared, 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. 1. 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. 2. That nothing can be more prejudicial to the king and kingdom than to have a convention under the name of a parliament. 3. That a matter of such high importance ought not to be left dubious when it may be made certain. ་ liament 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 8th day of May, 1661, should act by virtue of this Or der 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." * State Tracts, vol. i. p. 237. |