Prorogation and Adjournment

The modern practice of prorogation and adjournment is in theory, at least, clearly enough understood. Prorogation is an act of the Crown, usually used to mark the end of one session and fix a date for the start of another. Adjournment is an act of each House of Parliament, used routinely to end each day’s sitting, and to interrupt the normal succession of daily sittings, so that the House can take a break for its holidays, or some other purpose. In modern political memory, prorogation is a brief pause that acts as a routine way of marking the end of one parliamentary and political year and the start of another. There are plenty of earlier instances – leaving aside the much argued-over case of 1997 and the rather sui generis case of 1948 – in which prorogation is said to have been used in order to block one or other House doing something. Philip Salmon’s two blogs, on the Victorian Commons  and the TLS,  provide some excellent nineteenth century examples.

There is much that is obscure about the history of prorogation, and just as now, earlier generations found it difficult to assimilate precedent and practice into a set of hard and fast rules in which they could have confidence. This blog is, by way of background, an attempt to summarise what is known about the earlier history of prorogation and its relationship to adjournment. To those wanting a definitive answer on the recent controversy, this, as ever, is not the place to come. There is a pretty comprehensive paper by Graham Cowie from the House of Commons Library; and  David Howarth and Catherine Barnard and no doubt others have written heavyweight analyses of the issue.

Prorogare, Continuare and Adjornare

Prorogare, in medieval Latin, means to extend, to prolong, to put off; continuare and adjornare can also mean essentially the same thing, though the latter has a slightly different nuance – it’s often used to refer to fixing a day sometime ahead for usually legal proceedings. All three terms have been used for the same parliamentary process, before practice started to become fixed in the sixteenth and seventeenth centuries.

The original use of the word ‘prorogare’ was to put off the initial assembly of a new Parliament to a later date than originally given in the writs of summons. The first time it was used in the official record of the medieval Parliaments – the Parliament Rolls – to refer to what we might call a ‘recess’ (i.e. a break when a Parliament splits up, to reconvene some days, weeks or months later) appears to have been in the first Parliament of Henry IV in October 1399, after the deposition of Richard II. During the 1410 Parliament the King agreed to a three week adjournment (‘prorogacioun’) over Easter at the request of the Commons. From 1423 it became relatively common to break for a few days for various reasons. In 1425, for example, Henry VI (who was four at the time) issued letters patent to his uncle and the lord protector, Humphrey Duke of Gloucester, authorising him ensure that Parliament is ‘prorogued and continued’ (‘prorogandum et continuandum’) for just a few days, from Friday to the following Thursday. The King might instruct Parliament to go away and come back later in person, as well, as he did in the second prorogation of the 1450-51 Parliament, when he required that it ‘be prorogued (‘prorogandum’)’ to 5 May, ‘and thus he indeed prorogued it’ (‘et illud realiter prorogavit’).

When the Lords Journal becomes available from 1510, it shows that while the House normally adjourned automatically from day to day, on occasions when the House missed a day, or a few days, usually in order to celebrate a religious festival, or because the lord chancellor (then normally a cleric) and the bishops were attending convocation, the chancellor ‘continuavit’, rather than ‘prorogavit’ the assembly to the prescribed day, while it also makes clear that the adjournment is by order of the king, ‘de mandato Domini Regis’. By the 1530s, the phrase ‘de mandato domini regis’ is usually dropped; while for a time in the 1540s the word ‘continuavit’ was changed to ‘prorogavit’. The significance of these changes is obscure: it may be evidence of an attempt to be more precise about what was meant, perhaps partly as a result of the fact that multi-session Parliaments were becoming more common in the sixteenth century.

 

The power to adjourn

Whether the entries in the Lords Journal are indicative of it, it’s clear that at some point those involved came to regard prorogation and adjournment as being different, and attributed different qualities to each. Two principles seem to have become firmly established, although there was plenty of debate and uncertainty about what they meant in practice.

The first was that each House had the power to decide on its own adjournment, but a prorogation was an order of the monarch that needed to be obeyed. But there was a rather large and problematic grey area, which Sir John Sainty has called ‘Crown adjournments’. The difference between these and prorogations was probably that a prorogation was announced collectively to the Lords and the Commons, either by the King or by the Lord Chancellor. A ‘Crown adjournment’ was usually an instruction to adjourn given by the King to the lord chancellor or senior judges to be conveyed to the Lords, and, separately, to the Commons. The Lords never seem to have had any difficulty with complying; the Commons, however, appear to have given some thought to the implications of doing so. For example, on 24 March 1559, the Journal records that ‘for weighty Affairs to be done this Parliament, according to the Example of the Upper House, this Court of the Nether House is adjourned, according to former Precedents, until Monday the Third Day of April next coming’; and on  28 December 1566 it recorded that ‘Mr. Speaker, with the Advice of this House, adjourned until Saturday next’

There is a particularly odd case, from December 1584, which would later be much argued over, in which the Queen gave a commission to a number of peers authorising them to require Parliament to take a break. The Commission looked like the commission usually issued for prorogations; but it used the phrase ‘adjournandum et continuandum’, rather than ‘prorogandum et continuandum’, and was clearly intended not to terminate the session and thereby bring about the end of all bills currently under debate. It may have had some political inwardness, for it was possibly intended to create a break in the session in order to disrupt a developing campaign by some members of the Commons to attack the unreformed state of the English Church. Interpretation is hampered by the loss of the Commons Journals for this period; some notes kept by individual members suggest that the senior judges (the two lord chief justices, the master of the rolls and the lord chief baron) came down to the Commons to deliver the message about the adjournment, and the Commons simply complied, though one of them (Sir William Fitzwilliam) wrote that ‘this was thought strange, for as it had been used heretofore that the two Houses by consent for a week in Christmas, or at Shrovetide have adiourned the parliament: so was it never seen that so long a vacation as six weeks was had without the presence of the Prince’s person’. There is some evidence that the Solicitor General proposed, and the House agreed, that there should be a committee to review obsolete laws during the break.

In December 1586 the House of Commons was again adjourned by formal commission from the Crown, an event that the seventeenth century antiquary Sir Simonds D’Ewes discusses at length in his collection of proceedings of the Elizabethan parliaments. That this sort of adjournment was regarded as questionable might also be implied by the entry in the Commons Journal in November 1605, when, after the discovery of the Gunpowder Plot the chancellor adjourned (‘continuavit’) the Lords until January, and the Commons followed suit. The clerk wrote ‘Prorogato [not ‘adjornatio’] in 21 diem Januarii.’ This may have been an error; it may have been because the terms were still interchangeable; or it might conceivably have been a passive-aggressive response to a very long adjournment on the instructions of the Crown, which the clerk thought should properly have been regarded as a prorogation, not an adjournment.

Prorogation and the Royal Assent

The second generally accepted principle was that a prorogation terminated all pending business, whereas a mere adjournment would allow proceedings to continue on bills already underway. The idea was mixed up with the question of the giving of royal assent to bills, a process that customarily came at the end of a parliament. In short parliaments, as was usual at least in the fourteenth century, the giving of royal assent would be a sort of roll-up process at the end of the session, perhaps a little bit like the communiqué at the end of the meetings of an international gathering such as the G7. As parliaments got longer and breaks became customary, it was probably seen as helpful to get some bills out of the way before the end of the parliament; and kings would always have been keen to get supply sorted out as soon as possible, graciously letting the Commons spend their time on their own concerns once that had been sorted out. Since the Parliament Rolls, our only real source for how Parliament worked before the regular survival of the Journal from 1510, tend to lump information about prorogations together at the beginning of the roll for any individual parliament, it isn’t usually possible to be sure whether in pre-sixteenth century Parliaments some bills received royal assent before a prorogation/adjournment.

Nevertheless, by the middle years of the sixteenth century, a prorogation by the Crown in person or by royal commission was believed to bring an end to unfinished bills, although the main reason for knowing this is the two occasions on which the two Houses agreed to temporarily suspend this assumption: on 23 May 1539, in advance of a week’s prorogation, and a year later, on 11 May 1540, in advance of a two week adjournment. (The eighteenth century clerk and proceduralist, John Hatsell, regarded the first as a dubious precedent, which had something to do with the pending status of a bill for the dissolution of the monasteries: ‘the booty, held out by this Bill, was probably the immediate cause of this very extraordinary and irregular proceeding’). As we’ve seen, the 1584 adjournment seems to have been carefully framed as such, rather than as a prorogation, in order to prevent bringing existing business to an end.

A sort of converse idea, that giving of royal assent to one or more bills would ipso facto entail a prorogation and end the session was common, although lawyers usually rejected it. A case of 1388, from the reign of Richard II, the Commons sought to ensure that royal assent to a subsidy bill would not mean the end of the session, and ‘that the said grant thus made out of necessity before the end of parliament should not become an example nor precedent, nor turn to the prejudice of the said lords and commons in time to come, because it was granted before the end of parliament’ suggests at least that there was considerable uncertainty on the point. A century and a half later there was still confusion. A three day prorogation immediately after the royal assent was given to three bills on 21 October 1553 may have exacerbated it. In the Commons on 21 November 1554, shortly before Philip and Mary came to the Lords to give their assent to the bill reversing the attainder of Cardinal Pole, it was questioned whether ‘upon the Royal Assent, the Parliament may proceed without any Prorogation’, and it was agreed by the House that it could. But the idea survived well into the seventeenth century: in The Manner How Statutes are Enacted, written in the 1610s, but not published until 1641, procedural expert William Hakewill remarked that the point had been much debated recently, and that ‘the question is of great consequence, for if thereby the session be at an end, then ought every other bill, although passed both the Houses, to be read again three times in either House, and to have the same proceedings as it had at first, as if nothing had been formally done therein’. Hakewill was remembering the highly complicated 1604 case of the imprisonment for debt of one of the Members, Sir Thomas Sherley. An attempt to resolve the complicated issue at the heart of the case by passing an act would fail if it only received royal assent at the end of the session: the Commons therefore initially tried to resolve the question of whether royal assent earlier on would ipso facto bring an end to the session. In the end, the case – involving the very doughty resistance of the wife of the then warden of the Fleet Prison to the possibility that she or her husband would become liable for the debt – was resolved in another way, and the question about royal assent left hanging, only to resurface in a rather disruptive way 1621.

 

The debate in 1621

In 1621, royal assent had already been given to the subsidy bill on 22 March. During its passage in the Commons, the prominent lawyer and antiquary William Noye had suggested that a proviso be added to the bill confirming that royal assent did not bring the session to an end, and cited various precedents, including the 1388 one, though other lawyers argued that while it was worth doing, it was not strictly necessary. After that the Lords had decided to take a short break from 27 March until the middle of April, with which the Commons complied. When they reassembled, James I advised them to complete the business in hand rapidly: ‘time is precious. You see how the season draws on, which you must measure by the length of the days and not by the coldness of the weather.. the heat draweth on which will crave a recess for the health of your bodies; and I think you will be all weary before midsummer’. After another month, he began to make noises about a summer break, and on 28 May said that he would ‘send a commission for the adjournment of the parliament’ in a week’s time, 4 June. He was explicit that this was to be an adjournment, and not a prorogation, in order to ensure that bills were not lost. ‘This unexpected message’, wrote the diarist John Pym (who would become the leading tactician of the parliamentary junto in the early 1640s), ‘put the House to some distraction of affections and of opinions’. Some sought to comply, trying to work out which bills to expedite over the following week, but others objected. Samuel Sandys denied ‘that an adjournment should be made by commission; prorogation and dissolving [are] works of the king, but adjournment [should be] done by the [individual] Houses’.

The main objection to the king’s seemingly innocuous proposal was that they wanted to get more bills completed before being dismissed for the summer; but they were particularly anxious that it would appear to those with little understanding of the difference between adjournment and prorogation that the Commons had agreed to provide money for the Crown’s wants, but had done nothing to secure new legislation to address the problems of the country before being dismissed. Their request for more time to finalise bills irritated the king, who responded the same day that ‘a Petition of this Nature cannot be pleasing unto Him; it seeming to be to the Derogation of His Prerogative, who hath the only Power to call, adjourn, and determine Parliaments’. He refused to change the day that they should rise for the summer, said he would take legal advice on the question of royal assent, and proposed that the Commons should select some bills that would receive the royal assent, and that he would take a decision later on whether to proceed by prorogation or adjournment.

The king’s peevish response caused uproar in the Commons: Pym wrote that ‘the discontent of the House could hardly be restrained till the messengers might go out, and presently after was expressed by a general cry ‘Rise, rise’’. During extensive debates on 31 May and 1 June, the senior lawyers in the House chewed over the question of whether it had the power to adjourn itself, looking back particularly at the 1584 precedent. Noye argued that there was no effective difference between an adjournment by commission and a prorogation; William Hakewill told the House that ‘prorogavit’ and ‘adjornavit’ were just synonyms, ‘so that it should seem the difference which makes a session or not is not in the words but manner, by record or otherwise’, and set out what he saw as the principle involved: ‘in the dissolution or prorogation of a Parliament all three estates are to be together. The King either in person or by commission. Neither House can so work upon themselves as to destroy themselves, which would be unnatural. But adjournments which are but breathing times to give ourselves rest may be by ourselves’. In the end the Commons turned down the king’s subsequent offer of another two weeks. On 4 June a commission of adjournment was read in the Lords, and brought down to the Commons; the Commons, according to the Journal, did not read the commission, but adjourned itself.

The fuss in 1621 is a bit difficult to follow, since James I seemed to be making, at first at least, a perfectly reasonable suggestion for handling business. The king and the Lords seem to have been sometimes at cross-purposes with the Commons: while the Lords passed a bill saying that royal assent would not conclude the session, and the king sought advice on the point, the Commons entirely ignored the bill, presumably because it was not really what they were worried about – the point was the king’s assumption that he could routinely manage the daily business of the House.

The issue surfaced again in the following Parliament, though without the impact it had had in 1621, probably because this time a short adjournment had been requested by the Commons themselves. In July 1625 the King issued a commission for adjourning Parliament for three weeks and moving it to Oxford, in order to get away from the outbreak of plague in London. The Commons complied, although they felt it incumbent on them to point out that ‘by the ancient precedents of this House, adjournments have been always been made by ourselves’. A bill like the one proposed by the Lords in 1621, to confirm that royal assent would not end the session, was passed in both Houses with apparently very little opposition or comment.

 

The Cavalier Parliament

Prorogations were rather unusual in the late 1620s. The Parliament of 1628-9 was prorogued over the summer and autumn of 1628, almost certainly to avoid the king embarrassment over a critical resolution concerning his probably illegal collection of customs. The Parliament’s notorious end (when the Speaker was held down in the Chair to prevent him adjourning while the House passed a series of resolutions indicating the reasons for their disagreement with Charles I) is sometimes thought of as a prorogation, but it was in fact an adjournment at the king’s command. The Short Parliament of April/May 1640 was dissolved, precipitately, on 5 May; its successor, the Long Parliament, was neither prorogued or dissolved, and (unless you regard it as having been dissolved by the death of the king on 30 January 1649) it ended up sitting for a grand total of 3,322 days up until its dismissal by Oliver Cromwell in April 1653.

The questions about prorogation and adjournment were, though, revisited after the Restoration, because the inordinate length of Charles II’s Cavalier Parliament of 1661-1679 (prorogued 30 times with 18 separate sessions) provided further controversies related to prorogation. When the king came to give royal assent to a number of bills at the end of July 1661 he asked them to adjourn, though his formula, ‘I forbear to make a Sessions now; but am contented that you adjourn till the Twentieth of November’,  recognised that the right of adjourning lay in each House. After that until 1667, however, Parliament was always either prorogued by the king, or the individual Houses adjourned of their own volition without a formal royal instruction (although the initiative almost certainly came from the royal government). But the crisis of June/July 1667, when a raid by the Dutch navy on the English fleet in the Medway created a panic about an impending invasion, upset what appeared to be a developing procedural routine. Parliament had been prorogued on 8 February until 10 October. A proposal that it be recalled to an earlier date, theoretically in order to vote additional supply, caused a row in the Council: the lord chancellor, the earl of Clarendon, opposed the move, both because it would not solve the problem (it was unlikely that a parliamentary grant would result in any new money arriving in the exchequer for months), and because, as he wrote in his memoir, ‘most men who had any knowledge in the law did confess, that when the parliament stood prorogued to a certain day, the convening them upon a sooner day was very doubtful; and to him, upon all the disquisition he could make, it was very clear that it could not be done’ (Clarendon, Life, ii.422). If it was absolutely necessary to have a Parliament in being, Clarendon argued, the better course was to dissolve the existing one and summon a new one, which could be achieved at least as quickly. (Hatsell, in discussing the case in the second volume of his Precedents of Proceedings, originally published in 1781, supported Clarendon’s interpretation, pointing out that since a 1473 statute had made explicit provision on that occasion for an earlier meeting of Parliament if one were necessary the same thing could not be done otherwise than by statute). The king, though, decided to accept the advice of William Prynne, the parliamentary scholar, who told him that ‘upon an extraordinary occasion he might do it’, and went ahead with summoning Parliament to meet again on 25 July – only to dismiss it again, with a new prorogation, on the news that a peace with the Netherlands had been concluded.

It’s possible that this experience was the reason why, when Parliament next went into recess, it reverted to the adjournment at the request of the king, rather than by prorogation. In December 1667 a message was sent to the House of Lords, suggesting that they adjourn to February. The hint was taken; and during the 1670s it became common for the Cavalier Parliament to adjourn for long periods, particularly over the summer, rather than to prorogue. There were still prorogations as well, of course: the extraordinarily long prorogation of 22 November 1675 to 15 February 1677 – almost fifteen months – was a mark of Charles II’s contradictory wishes not to have to meet Parliament, but not to dissolve it, as long as he assumed that new elections would result in an even more difficult assembly. Those wanting a new Parliament claimed in a series of pamphlets that the length of the prorogation meant that Parliament was ipso facto dissolved, an argument based on two statutes of Edward III requiring Parliament to meet at least once a year. There were protests about the prorogation in London, and, when Parliament finally reassembled in February 1677, a group of peers tried to argue that it should be dissolved. They were sent by the rest of the House to the Tower for the remainder of the session – which was, ironically enough, artificially extended by a series of adjournments to keep them there (an incarceration on the orders of the Lords would, it was assumed, have to end with the end of the session).

Controversy still surrounded adjournments on royal instructions. Some Members, including the poet and opposition politician Andrew Marvell who was at the forefront of the demands for a new Parliament, protested about the alacrity with which the Speaker implemented such  orders during a series of adjournments between July 1677 and January 1678. On the first of the adjournments, after which the government published an angry statement about Parliament’s meddling in foreign affairs, Marvell wrote in his influential attack on government policy, An Account of the Growth of Popery and Arbitrary Government, that

All adjournments (unless made by special Commission under his Majesties Broad Seal) being and having always been so, an Act of the Houses by their own authority. Nevertheless, several of their Members requiring to be heard, the Speaker had the confidence, without any Question put, and of his own motion, to pronounce the House adjourned till the 16th of July and stept down in the middle of the floor, all the House being astonished at so unheard of a violation of their inherent privilege and constitution. And that which more amazed them afterwards was, that while none of their own transactions or addresses for the public good are suffered to be printed, but even all written copies of them with the same care as libels suppressed: yet they found this severe speech published in the next day’s News Book, to makr them out to their own, and all other nations, as refractory, disobedient persons, that had lost all respect to his Majesty. Thus were they well rewarded for their Itch of Perpetual Sitting, and of Acting, the Parliament being grown to that height of contempt, as to be Gazetted among Run-away Servants, Lost Dogs, Strayed Horses, and High-way Robbers’ [Marvell, Works, ii. 368-9].

The Cavalier Parliament was, eventually, dissolved by Charles II as the crisis which began with the conversion of his successor, James, to Catholicism, escalated with the allegations of a ‘Popish Plot’ to undermine the state. He called three more Parliaments in an attempt to resolve the crisis; the second, which was summoned for 17 October 1679, was prorogued seven times. Despite an enormous petitioning campaign demanding that it be permitted to assemble, it was not finally allowed to sit until 21 October the following year.

 

An Annual Routine

It was only after the Revolution of 1689 that the process of prorogation settled into an annual routine, as Parliaments began to sit reliably every year, with a roughly late autumn to early spring pattern established from 1692. It’s not immediately obvious why it should have been so: it may have been the interaction of the practice of annual renewals of the Mutiny Act, dealing with military discipline, with the old rule that the same bill should not be offered twice in the same session, that required an annual prorogation, although the old rule was really supposed to apply to bills that had been previously rejected, not to bills that were renewals of Act previously passed.

Adjournments at royal request became much rarer after 1691, but they were still used occasionally, normally on occasions where an immediate crisis (such as the Jacobite rebellions of 1715 and 1745) made it possible that Parliament might have to be reassembled quickly during a summer recess. Presumably governments persisted in using adjournments in situations of uncertainty because they remained unsure of the legality of a recall during a prorogation. Successive Militia Acts (such as that  of 1786 (26 George III, c. 107)), made provision for the calling out of the militia in cases of invasion, rebellion or insurrection, and for Parliament to be recalled as well. The Meeting of Parliament Act 1797 (37 George III, c. 127) finally cleared up the legal difficulty identified in 1667. March 1814 (during the final stages of the first defeat of Napoleon by the allied forces) was the last time that Parliament was requested to adjourn by the Crown. The fact that the radical leader, Samuel Whitbread, made some objections to it may have finally killed off the practice.

The routine pattern of sittings established in the eighteenth century shifted in the nineteenth century to a roughly February to August session. In either case, there would normally be a series of prorogations between the end of the summer until Parliament reopened. One resulting problem could be the formalities at the successive prorogations in between the end of one session and the beginning of another. In 1867 the lord chancellor explained how this had become a rather embarrassingly perfunctory process:

The present practice was not very consonant with the dignity of that House or of Parliament. A Commission was issued to some of their Lordships—generally Peers who held offices in the Ministry—empowering them to declare the further prorogation of the Parliament. Two or three of the Commissioners came down to the House, and a summons was sent commanding the attendance of the Commons to hear the Royal Commission. The House of Commons was generally represented by one of its Clerks, who was addressed as “Gentlemen of the House of Commons.” It appeared that up to the year 1672 the Speaker always attended to hear the Commission read; but in that year his place began to be supplied by the Clerk. In 1706 an Assistant Clerk came to be substituted for the latter; and so the custom had continued ever since. The Speaker, it was said, had originally excused himself from attending on the ground that he wanted to go to Spa, an excuse which was repeated by Sir Fletcher Norton; and so it had come to pass that the Speaker in subsequent years was suffered to find it necessary to go to Spa also. Under these circumstances, he hoped ​ their Lordships would see that it was not desirable to continue what in reality was an idle ceremony, and one which sometimes produced inconvenience; for it was often found difficult to secure the attendance of Commissioners sufficient to constitute the quorum. Indeed, he recollected that on one occasion it was only done by asking the Duke of Cambridge, who happened to be passing through town, to come down to the House. He did not wish to disparage ancient forms and ceremonies when they retained any meaning or use, but he thought the existing custom in respect of the prorogation of Parliament during the Recess was entirely useless and unmeaning, and might very well be dispensed with. What he proposed, then, was that the present custom should be abolished, and that the prorogations during the Recess should take place by means of a Proclamation.

A bill passed that year achieved this – the Prorogation of Parliament Act, still in force,  deals with the proceedings on a prorogation when it does not take place at the end of a session.

Much more could be said about prorogation and adjournment, both about the processes – proclamations, writs and commissions — that give effect to them, and about the procedures — including impeachments and judicial cases — that they affect. But if you’ve read this far, you’ll be one of very few; and this is quite enough for the moment.