Some considerations upon the question, whether the Parliament is dissolved by it's prorogation for 15 months?

IV.

Since the prorogation cannot revive or continue the parliament unto the 15th. day of Feb. 1676. being in that particular contrary to law, and so void and null: The next point will be. Whether the Parliament be still sitting, and hath been so ever since the prorogation?

To clear this point, it would be worth the asking, If the Parliament should pass Acts in February or March next, to what day should they relate? Must the members be allowed their priviledges and their 〈◊〉〈◊〉 during this time? and a thousand more such like questions would arise.

But it is clear that a Parliament prorogued is a Parliament not dissolved, but continued over to another day; and when the prorogation is legal▪ there is a Parliament continuing, but not sitting. To express the matter clearer, it will not be un-useful, either to the clearing this point or the better understanding the whole question in general, to explain the law of Parliaments in this place.

If a Parliament meet, though afterward they be proro∣gued or dissolved before they make any Act, yet this in law, while it was sitting, was a Parliament holden. The Judge∣ments that are affirmed or reversed in such Parliaments are good in law, and so are all other their proceedings, and wa∣ges shall be paid. A Writ of Error then brought, would have been returnable at presens Parliamentum, and in pleading it is usually said, ad parliamentum incoat. such a day, & ab inde per prorogationem continuat. &c.

Next, That a Session of parliament in law so called, is when there is an Act passed, and takes in all that time, that is, from the time of the meeting either by Summons or prorogation, until the time the parliament is prorogued or dissolved, for during all that time, they are in law looked upon as sitting, and all that sitting is called a Session.

Next, if a Parliament be summoned and meet, and then be prorogued either before or after any Acts passed, that this is a Parliament continued.

Therefore 'tis Parliamett. continuat. per diversas Proro∣gatione us{que} ad such a day, & tunc tent.

Therefore Parliament and Session of Parliament are dif∣ferent things; every Parliament must be before it can make an Act, therefore it must be and must have continance be∣fore it can make a Session, and all the while that it hath con∣tinuance it is a Parliament in being but when it is prorog'd it cannot be said to be a Parliament sitting, or that tis then holden, but by the prorogation is put off from sitting, or being holden, but continued.

Hence you may observe the mistake of the Judges in Huttons Rep. Fol. 61. in not distinguishing between Parlia∣ment and Session of Parliament.

Next, In this case, de facto, there was no sitting, but all departed, and the King hath summon'd them by his Procla∣mation, to Assemble upon the 15th of Feb. So the king doth not know they are now sitting. And though this Pro∣rogation for the Causes abovementioned, be not a legal pro∣rogation, and consequently not sufficient to perform the kings will to continue the parliament, and cause them to meet again on the 15th of February, Yet the kings pleasure hereby declared shall be so far effectual, as that they shall not be sitting in the mean time. For though the king mistakes the Law, yet his Acts are not void in those parts of them that are agreeable to Law. It would be a contradiction in Law to say, That a Parliament cannot sit but by the good plea∣sure of the king, and yet be sitting contrary to his pleasure and will declared.