AN APPENDIX To the Second Edition of Mr. Lofft's 'OBSERVATIONS
On a late Publication, entitled
A Dialogue on the actual State of Parliaments;
and on some other Tracts equally inimical to the Constitution of
'Free Parliaments:'
BEING A FARTHER EXAMINATION Of the Argument, lately published by Mr. HATSELL, (in his
Precedents of Proceedings, &c.
) against
the antient Law and Constitution of this Kingdom, that the King ought to hold Parliaments elected annually.
By GRANVILLE SHARP.
Great is the TRUTH, and stronger than all Things; — it liveth and conquereth for evermore.
APPENDIX.
THE supposed
opinion
of Mr. Hatsell, (in his
Precedents of Proceedings in the House of Commons,
under the title of
King calls the Parliament,
) as compendiously stated by my worthy and very learned friend, Mr. Lofft, in p. 5 of his Observations, is a much more favourable construction than Mr. Hatsell's
own words
can really warrant; though all persons, who are acquainted with that gentleman's very amiable character, (including the writer of this remark,) have reason to wish, for his sake, that his
opinion
(whatever it may be) had been so expressed as to be really limited by the moderate and very friendly construction which Mr. Lofft has put upon it. Mr. Lofft supposes the
opinion
of Mr. Hatsell to be, that
the intent of the statutes of Edward, and the ancient law and constitution of the kingdom, require parliaments to
SIT
once at least in every year, but
NOT
that they should be
ANNUALLY, OR OFTENER, ELECTED;
but Mr. Hatsell himself, if we may judge by his manner of writing, is far from admitting that
the constitution requires parliaments
even
to
SIT once a year, or that
the king is obliged to call a parliament once at least in every year;
for this he has contemptuously treated merely as
'a notion'
(that)
has been sometimes entertained;
(p. 196, n.) and he, asserts, that
those persons, who maintain
THIS DOCTRINE,
(i. e. the doctrine last cited in his own words, as a
general
doctrine, having two different acceptations, arising from the 4th and 36th Edward III.)
'do not mean'
(says he)
that, according to these statutes,
A SESSION
of parliament shall be holden every year, but that
A NEW ELECTION shall be had, &c.
— In answer to which, it may be sufficient to oppose one eminent example for all: viz. that the learned commentator, Judge Blackstone, notoriously denied, as well as himself, that the
latter
doctrine
'ever was'
the
meaning
of those ancient statutes, though he actually was one of
those persons who maintained
the
former
general construction of the said statutes (the only operative construction they are
now
capable of bearing since the traverse of the modern acts for
triennial
and
septennial
elections) as being still in force to
bind the king.
See 1 Com. c. 2, p. 152 & 153: where the learned writer, having mentioned that
the king only can convoke a parliament,
immediately adds,
and
THIS,
by the ancient statutes of the realm,
HE IS BOUND TO DO EVERY YEAR,
or oftener if need be;
for which, in a note, he expressly cites these statutes of K. Ed. III. and immediately afterwards he mentions the two different acceptations of the said statutes. —
'Not'
(says he)
'that he'
(i. e. the king)
is, or
ver was, obliged by these statutes to call a
NEW
parliament every year; but only to permit a parliament to
SIT
annually,
&c. The words,—
'to permit,'
—being a verb in the infinitive mood, do manifestly require a repetitio
(to be understood) of the preceding verb,
'is obliged,'
—viz.
is oblige
to permit;
which confirms, by
necessary grammatical construction,
th
doctrine of the preceding sentence, that the king
'is bound'
by the sai
ancient statutes. This doctrine is strongly confirmed by the nationa
declaration in the preamble to the statute of 16 Charles I. c. 1.
that by the laws and statutes of this realm, the
parliament ought to be holden
AT LEAST ONCE EVERY YEAR
for the redress of grievances,
&c
which (though the act is repealed) is stated, as being still an existing principle of parliamentary doctrine, by Judge Hales, in his
Original Institution, Power, &c. of Parliaments,
p. 57. and which is still farther confirmed by the constant
'usage and custom of parliament
ever since the revolution, as well as by the obvious
reason
and
necessity
of it; whereby the
'lex et consuetudo parliamenti'
upon this poin
must surely be sufficiently clear not to be mistaken by persons o
much less intelligence in those matters than
the clerk of the house of commons!
Yet Mr. Hatsell does not admit even this general construction of the ancient statutes; and, as a proof that he
does not,
I need only to observe, that, though he is writing expressly concerning what he call
the undoubted prerogative of the crown to judge of the expediency of calling
parliament, and to determine at what time the writs shall issue; yet this prerogative
(says he)
is limited by two acts of parliament, the
16th
Ch.
II.
c.
1,
and the
6th
of Wm & Mary, c.
2;
both of which,
&c.—
enact, that from henceforth a parliament shall be holden once in three years at the least;
so that, in obedience
TO THESE LAWS,
(says he, without citing any other
limitation,
either of
statute
or
usage,
but
these
two acts for
triennial
parliaments,)
the ministers of the crown
(says he)
are bound to take care,
that
THE SITTING
and holding of parliaments shall not be
INTERMITTED
or
DISCONTINUED
above three years at the most.
And it is their duty
(says he)
to give directions for issuing the writs of summons
ACCORDINGLY,
—i.e. according to the two acts for
triennia
parliaments, or rather to a part of one of them, viz. the part he has selected for the direction of
'the ministers of the crown'
to
take care, that the
SITTING, &c.
shall not be
INTERMITTED or DISCONTINUED
above three years at the most;
whereby he leaves
the ministers of the crown
at liberty to
intermit and discontinue for three years
even the SITTING of parliament, for he has cited no other
limitation
of the prerogative on this head: and, with respect to the two ancient statutes of K. Edward III. he did not (it seems) think them worthy even to be named in his
text,
but only in a
note,
(to shew that he had not forgot them,) where he has treated even their
general
construction merely as "
a notion,
&c." See p. 196-199.
But, though the original meaning and force of these ancient statutes are materially affected and injured by the modern acts for
triennial
and
septennial
parliaments, yet they are certainly still in force (as Judge Blackstone has allowed) to
oblige
the king
'to permit a parliament to sit annually for the redress of grievances and dispatch of business;'
and this, without impediment from the words
'if need be'
in the
'loose and vague'
manner that the Judge has applied them, contrary to the necessary
grammatical
construction of the whole sentence: (see 'Declaration of the 'People's Rights, p. 166 to 169, n.)—For our right to an
annual session of parliament
is founded on the ancient constitution of the kingdom, — on laws that are almost coeval with our national existence in this island. See the
'usage perpetual'
ordained by K. Alfred, and cited by Lord Coke, 1 Inst. p. 110. viz.
'Le Roy Alfred'
(fist)
assembler les Counties, &c. et ordeina, pur
USAGE PERPETUEL,
que deux foitz par an, ou pluis sovent, pour mister
(mestier)
in temps de peace, se assemblerent a Londres, a parliamenter sur le guidament del people de Dieu, &c.
— The testimony of Knighton, (
one of our best historians,
as Mr. Petyt calls him in his preface to the Ancient Right of the Commons, p. 41.)
that, by an ancient
STATUTE
and
CUSTOM,
laudable and approved, which nobody could deny, the king was
ONCE IN A YEAR
to convene his
LORDS
and
COMMONS
to his Court of Parliament,
&c. Mr. Nevill's testimony concerning an ancient statute of Edward I. ordering that
a parliament shall be held every year, and oftener if need be;
for which see his Plato Redivivus, p. 110-112. — The same doctrine declared in the very next reign, as proved by Mr. Petyt (p. 77) from Rot. Claus 10 Edw. II. m. 28, intus; that
"upon a petition to the king,"
(K. Edw. II.) '
he granted that
"SEMEL IN ANNO TENEATUR
parliamentum,"
&c. whence it is evident, that the act of 4 Edw. III. c. 14, was not a
new
law, but a declaration of the
old
constitution, viz.
That a parliament shall be holden every year once, and more often if need be;
which was again confirmed by statute in the 36 Ed. III. c. 10. And the USAGE of those times (proved by the
writs issued for general elections
frequently
MORE OFTEN
than 'ONCE' in a year) excludes all
'doubtful'
-ness from these ancient statutes; so that
new
parliaments must necessarily have been understood, until (by the traverse of modern acts) they became applicable only to the
annual sitting
of parliament.
The opposers of the original meaning (viz for
annual elections,
and
more often
) have rendered that construction still more obvious by their own miserable shifts to evade it! One says, — the words are
loose and vague,
though such a charge is applicable only to his own
ungrammatical
construction; and another would render the acts
doubtful,
by boldly excluding the only just criterion for
clearing up doubts
in such a case, viz. the USAGE
of the times in which the acts were made;
and, instead of it, would have us refer ONLY to
the practice
and to
'the opinion'
of persons who lived from 200 to 400 years after those times! But the proposer seems not to be aware, that this mode of
'explaining ancient statutes'
is exactly similar to one of the most gross and delusive practices of
popery!
The apostate church of Rome, for obvious reasons, cannot submit the determination of what ought to be esteemed
apostolic doctrine
to the evidence of
apostolic times;
and, of course, she is driven to this wretched subterfuge of referring for evidence (in favour of her
innovations
and unscriptural practices) to the traditions of
more modern times,
and to the
practices
and
opinions
of persons who lived from 200 to 400 years afterwards; in order to invalidate
all cotemporary evidence
of
facts
and
primitive usages.
— And surely this dishonest and arbitrary mode of
'settling doubts'
is equally unjustifiable in
legal
and
political,
as in
religious,
questions. Yet Mr. Hatsell boldly ventures to tell us that,
where the expressions of acts of parliament,
(speaking of the acts of Edward,)
passed above
FOUR HUNDRED YEARS AGO,
are
DOUBTFUL,
(says he, though the contrary is evident,)
nothing can clear up and settle these
DOUBTS
but the
OPINION
of all the wisest and best-informed persons,
&c.
from the beginning of the reign of Queen Elizabeth to the present time.
(P. 198, n.) Thus, even the commencement of the time, here proposed as
the best
for affording information, is actually more than two hundred years AFTER
the times
in which the acts were made; and he cuts off all
cotemporary,
as well as
intermediate, evidence,
by a single bold assertion, that
nothing can clear up —but,
&c. taking care to secure to himself the ample space of another two hundred years, (still more distant from
the times
in question,) that he may range more securely in his search for
precedents
of innovations both in
practice
and
opinion.
And indeed he has most industriously displayed the
practices
of the Stuarts, reminding us, in the course of argument, even of
'intermissions of parliaments'
for several years together: —
'an intermission of Parliament of six years,'
by K. James I. —
'an intermission of parliaments for twelve years' together,
by K. Charles I. These were surely most unpropitious times for
parliamentary knowledge;
and Mr. Hatsell does not seem to be aware, that the fear of similar
intermissions
was probably the principal cause which withheld the patriots of those days from urging their
election-rights
at a time when the sum total of all their
rights
was at stake, even
the right to have any parliament at all!
so that their
silence
respecting
annua
elections
does not at all assist Mr. Hatsell's argument against them. — The people of England, in those times, were rendered so deplorably
abject,
by the
unlimited,
and therefore
illegal,
rule of
Tudors
and
Stuarts
that it was considered as a crime, in the preceding reign of James I even to urge the expediency of calling a parliament at all: —
I would fain know the man that durst persuade the king unto it,
— says THE MINISTER OF STATE in Sir Walter Rawleigh's Dialogue on the
Prerogative of Parliaments,
(p. 2.) so that this was undoubtedly the language of
those times
to which Mr. Hatsell has referred us for
acts, opinions
and
speeches,
whereby (with the addition of some still more modern in formation) he thinks
the true intent and meaning of the words used in th
statutes of Edward
III,
(though made almost 300 years before)
migh
be best explained:
but, to look for explanatory
'opinions'
and
'speeche
▪
in such arbitrary times, when men dared not to
speak
their
opinions
upo
the subject, is too great an absurdity! so that Mr. Hatsell is peculiarl
unfortunate in fixing his aera for
parliamentary information.
And ye
if
'the wisest and best-informed men'
of those times had shewn a littl
more regard to the nation's
rights
than to the
security
of their own persons and property, (for
rich
men are commonly the
worst citizens,
for various reasons,) and had ventured, like
honest men
rather than like
wise and prudent
'The prudent shall keep silence in that time; for it is an evil time.'—
Amos v. 13.
men,
to speak their opinions in favour of that SACRED TRUTH, our indispensible right to the actual
sitting
of a
new
parliament
'every year once'
at least,
'and more often if need be'
— (a truth never to be concealed, a claim never to be relaxed!) — they might probably, with God's blessing in the cause of
truth
and
right,
have so checked the progress of unconstitutional doctrines, as to deter their kings and statesmen from changing a
limited
monarchy to an
absolute
tyranny; and might thereby have prevented the horrible effects of
misrule
which speedily broke out and overwhelmed the state! and indeed the infringement of our
parliamentary rights
was the true source of all the mischiefs that shortly followed: for, when the able patriots (named by Mr. Hatsell) were struggling, almost in despair, to retain the mere existence of a parliament, under K. Charles I. they did not seem to apprehend that their full constitutional claim to an
annual election
was a subject proper to be discussed at such a time; but their only aim, when they met,
('after an intermission of parliaments for twelve years,')
seems to be how they might
prolong their
SITTING
at any rate
for the redress of grievances; whereby it is manifest, that the obstinate monarch's unwillingness to
permit a parliament to
SIT, together with the previous criminal
intermissions,
(as one
illegality
is apt to beget another,) became, eventually, the parents of a still greater evil—
a long parliament without any election at all,
which severely repaid
the royal perfidy
in kind, by
'an
intermission,'
in return,
of regal government,
—an exclusion of that per
ured monarch's family from the throne for exactly the same number of years that he had presumed to
intermit
the sitting of parliaments, viz.—for 'TWELVE YEARS
at one time,
' and even the SIX YEARS
intermission,
n his father's reign, was severely repaid in a bloody SIX YEARS war, until the son's imprisonment and death!
These are awful examples, worthy the serious attention of all parties;
hough we are bound, at the same time, to discriminate between
examples
(or
facts
) and
precedents,
that such
baneful examples
may not (by the critical
observations
of ingenious men) be drawn into
precedents
for
proceedings,
but that the
legal
acceptation of the word
precedent
may always
e duly maintained.
Mr. Hatsell's argument, upon the whole, is certainly a very extraor
inary one: not only because the
arbitrary times,
to which he has limited the commencement of our parliamentary researches, seem to be utterly incapable of affording the least information upon the particular point in question, and are also near
three hundred years
AFTER
the only proper time
for ascertaining the
usage of the times
when the statutes to be explained were made, — but also because he peremptorily excludes all other evidence whatever—
Nothing can clear up, &c. but the opinion, &c. from the beginning of the reign of Queen Elizabeth! &c.
I am far more willing to attribute such an unaccountable argument to
inattention,
and a
superficial manner of writing,
than to suspect any
rea
design
of the ingenious author to promote a mode of
explaining ancient statutes
so dangerously presumptuous and arbitrary! And, to justify the more moderate conclusion of the two, he has luckily furnished me with an easy and obvious proof of it in the very next chapter but one, to which he has given the running title of—
King adjourns the Parliament,
—
'King adjourns the Parliament,'
— for several pages together, (i. e. from 204 to 211.) so that that one would naturally suppose that
he really meant what he had so often written:
but, at length, (though not till the very last page of that head,) he kindly guards us against that baneful error by an explicit stating of what HE HIMSELF believes to be
the true parliamentary doctrine,
viz.
That the king has no authority to adjourn the parliament;
and, of course, his
'superficial manner'
of expressing himself (I mean on this particular head) must be corrected, in his next edition, to
'the true parliamentary doctrine,'
—
King does
NOT
adjourn the Parliament:
—
so that he must put
a negative
upon his present
title
throughout all these pages!
But, to return to my subject, I trust that the necessity of at least ONE SITTING of the parliament every year, and of our
national right
to such SITTING, is so sufficiently understood and acknowledged, by the majority even of
all parties,
that THE CONTRARY DOCTRINE, which arises too apparently from Mr. Hatsell's
manner of treating
the king's prerogative on that subject, will need no particular refutation: and yet so respectable is the authority of the writer, (not only by his office of
clerk of the house of commons,
but also by the personal esteem which is certainly due to him from a very numerous and respectable body of friends and acquaintance,) that I thought myself obliged to take some notice of
his manner of treating
the subject before us, in order to warn the public against
a possible
construction of it which might hereafter (if not seasonably censured) have dangerous consequences. At the same time I sincerely profess, that my censure is aimed more at this gentleman's
manner of writing
than his
intention,
and that I am much more willing to believe that
the opinion he intended
to express was truly what Mr. Lofft has
supposed;
or that I myself may perhaps be mistaken in conceiving that his words are liable to a different construction; rather than to suspect that the worthy clerk of the house of commons could
really intend
to favour a doctrine which is repugnant to the established
usage of parliament
for near a century, and is
equally
inimical to the just privileges of the
Lords
as to those of the
Commons,
and, of course, to the welfare of the
whole nation.
GRANVILLE SHARP.
Old Jewry,
May
30, 1783.