I. THat the formality of the King's Writ of Summons is not so essential to an English Parliament, but that the Peers of the Realm, and the Commons, by their Representatives duly Elected, may legally act as the great Council and representative Body of the Nation, though not sum­mon'd by the King, especially when the circumstances of the time are such, that such Summons cannot be had, will (I hope) appear by these following Observations.

First, The Saxon Government was transplanted hither out of Germany where the meeting of the Saxons in such Assemblies was at certain fixed times; viz. at the New and Full Moon. But after their Trans­migration hither, Religion changing, other things changed with it; and the times for their publick Assemblies, in conformity to the great Solemnities celebrated by Christians, came to be changed to the Peasts of Easter, Pentecost, and the Nativity. The lower we come down in Story, the seldomer we find these General Assemblies to have been held; and sometimes (even very anciently) when upon extraordinary occasions, they met out of course, a Precept, an Edict, or Sanction is mentioned to have Issu­ed from the King: But the Times, and the very place of their ordinary Meeting having been certain, and determined in the very first and eldest times that we meet with any mention of such Assemblies, which times are as ancient as any Memory of the Nation if self; hence I inferr, that no Summons from the King can be thought to have been necessary in those days, because it was altogether needless.

Secondly, The Succession to the Crown did not in those days, nor till of late years, run in a course of Lineal Succession by right of Inheri­tance: But upon the death of a Prince, those Persons of the Realm that Composed the then Parliament, Assembled in order to the choosing [Page 2] of another. That the Kingdom was then Elective, though one or other of the Royal Blood was always chosen, but the next in Lineal Succession very seldom, is evident from the Genealogies of the Saxon Kings, from an old Law made at Calchuyth, appointing how, and by whom Kings shall be chosen; and from many express and parti­cular Accounts given by our old Historians, of such Assemblies held for Electing of Kings. Now such Assemblies could not be Summon'd by any King; and yet in conjunction with the King that themselves set up, they made Laws, binding the King and all the Realm.

Thirdly, After the Death of King William Rufus, Robert, his Elder Brother, being then in the Holy Land, Henry, the youngest Son of King William the First, procur'd an Assembly of the Clergy and People of England, to whom he made large promises of his good Government, in case they would accept of him for their King; and they agreeing, That if he would restore to them the Laws of King Edward the Confessor, then they would consent to make him their King: He swore that he would do so, and also free them from some oppressions, which the Nation had groan'd under in his Brothers and his Fathers time. Hereupon they chose him King, and the Bishop of London, and the Archbishop of York, set the Crown upon his Head: Which being done, a Con­firmation of the English Liberties pass'd the Royal Assent in that Assembly, the same in substance, though not so large as King John's, and King Henry the Third's Magna Charta's afterwards were.

Fourthly, After that King's Death, in such another Parliament, King Stephen was Elected, and Mawd the Empress put by, though not without some stain of perfidiousness upon all those, and Stephen himself especially, who had sworn in ther Fathers Life-time, to ac­knowledge her for their Sovereign after his decease.

Fifthly, In King Richard the First's time, the King being absent in the Holy Land, and the Bishop of Ely then his Chancellor, being Re­gent of the Kingdom in his Absence, whose Government was intolerable to the People for his Insolence and manifold Oppressions, a Parliament was convened at London, at the Instance of Earl John, the Kings Bro­ther, to treat of the great and weighty affairs of the King and King­dom; in which Parliament this same Regent was depos'd from his Government, and another set up, viz. the Arch-Bishop of Roan in his stead. This Assembly was not conven'd by the King, who was then in Palaestine, nor by any Authority deriv'd from him, for then the Regent and Chancellor must have call'd them together; but they met, as the Historian saies expresly, at the Instance of Earl John. And yet, in the Kings Absence, they took upon them to settle the pub­lick Affairs of the Nation without Him.

Sixthly, When King Henry the 3 d. died, his Eldest Son, Prince Ed­ward, was then in the Holy Land, and came not Home till within the third Year of his Reign; yet, immediately upon the Fathers Death, all the Prelates and Nobles, and four Knights for every Shire, and four Burgesses for every Borough, Assembled together in a great Coun­cil, and setled the Government till the King should return: Made a new Seal, and a Chancellor, &c.

I inferr from what has been said, that Writs of Summons are not so Essential to the being of Parliaments, but that the People of Eng­land, especially at a time when they cannot be had, may by Law, and according to our Old Constitution Assemble together in a Parlia­mentary way without them, to treat of and settle the Publick Af­fairs of the Nation. And that, if such Assemblies so conven'd, find the Throne Vacant, they may proceed not only to set up a Prince, but with the Assent and Concurrence of such Prince, to transact all Publick business whatsoever, without a new Election; they having as great Authority as the People of England can deligate to their Re­presentatives.

II. The Acts of Parliaments not Formal nor Legal in all their Circumstances, are yet binding to the Nation so long as they con­tinue in Force, and not liable to be questioned as to the Validity of them, but in subsequent Parliaments.

First, The two Spencers, Temp. Edvardi Secundi, were banishedby Act of Parliament, and that Act of Parliament repealed by Dures & Force; yet was the Act of Repeal a good Law, till it was Annull'd 1 Ed. 3.

Secondly, Some Statutes of 11 Rich. 2. and attainders thereup­on were Repealed in a Parliament held, Ann. 21. of that King, which Parliament was procur'd by fore'd Elections; and yet the Repeal stood good, till such time as in 1 Henry 4. the Statutes of 11 Rich. 2. were revived and appointed to be firmly held and kept.

Thirdly, The Parliament of 1 Hen. 4. consisted of the same Knights, Citizens and Burgesses that had served in the then last dis­solved Parliament, and those Persons were by the Kings Writs to the Sheriffs commanded to be returned, and yet they passed Acts, and their Acts tho never confirmed, continue to be Laws at this day.

Fourthly, Queen Mary's Parliament that restored the Popes Supremacy, was notoriously known to be pack'd, insomuch that it was debated in Queen Elizabeth's time, whether or no to declare all their Acts void by Act of Parliament. That course was then upon some pruden­tial considerations declined; and therefore the Acts of that Parlia­ment, not since repealed, continue binding Laws to this day.

The reason of all this, is, Because no inferior Courts have Autho­rity to judge of the Validity or Invalidity of the Acts of such As­semblies, as have but so much as a colour of Parliamentary Autho­rity.

The Acts of such Assemblies being Entred upon the Parliament-Roll, and certified before the Judges of Westminster-Hall as Acts of Parliament, are conclusive and binding to them; because Parlia­ments are the only Judges of the Imperfections, Invalidities, Ille­galities, &c. of one another.

The Parliament that call'd in King Charles the Second, was not as­sembled by the Kings Writ, and yet they made Acts, and the Roy­al assent was had to them; many of which indeed were afterwards confirmed, but not all, and those that had no Confirmation, are un­doubted Acts of Parliament without it, and have ever since obtained as such.

Hence I Inferr that the present Convention, may, if they please, assume to themselves a Parliamentary Power, and in conjunction with such King or Queen as they shall declare, may give Laws to the Kingdom as a legal Parliament.