chapter  3
18 Pages

Sunset clauses in a period of transition

By the dawn of the 17th century, Parliament had confi rmed its role in the legislative process and its constitutional position as an indispensable element of the State. Two major approaches have been recorded among scholars as to the conceptualisation of Parliament’s role in legislation in the era of the Stuarts. On the one hand, Sir John Neale and Wallace Notestein identify a contentious relationship between Parliament and the Crown, while on the other hand Sir Geoffrey Elton and Michael Graves emphasise the consensual role of Parliament. 1

Tanner recognises the institutional development of Parliament and attributes its consolidation to the Tudor period, describing it as one of the great constitutional achievements. 2 Judson remarks that ‘[t]he Stuarts inherited governmental machinery geared to legal forms and constitutional ideas premised upon the supremacy of law and not of power in human affairs’. 3 The crucial constitutional development of the Stuart period, though, was the rise of a defi nite opposition to the monarch. 4 According to Zagorin, two conditions allowed the opposition movement to take shape: ‘one was the further growth of parliament under the Tudors, the other the change circumstances prevailing after the accession of James I’. 5

his beliefs on governance, but the institutional role of Parliament and its share of powers were discordant with these beliefs. 6 As a consequence, a political discussion developed concerning the nature and location of the highest powers of government. 7 This debate included the relationship of the Crown and the Commons, and the relationship of both with the State. 8

An unexpected development during the reign of the fi rst two Stuarts was the reduction of legislation passed by the Parliament and approved by the King. 9 The main reason was that both James I and Charles I dissolved the Parliament when it did not comply with their will, with the hope that the next one would better represent their point of view. 10 Four Parliaments took place under the auspices of King James I, and fi ve Parliaments under the auspices of King Charles I. Among them, the fi rst Parliament of James I – that of 1604-10 – passed 97 public and 130 private acts. 11 Between 1610 and 1640, the Parliament of 1614 passed no legislation at all; the parliament of 1621 passed only one act, the 1621 Subsidy Acts; the Parliament of 1624 passed thirty-fi ve public and thirty-eight private acts, with no public bills introduced by the House of Lords; 12 and those of 1625 and 1628 passed only eight public acts each. 13

The use of sunset clauses was quite frequent during the reign of James I. According to The Statutes of the Realm , twenty-six acts containing a sunset clause were passed, 14 with the most remarkable one to take effect upon a contingency aiming for the ‘speedye recoverye of manye thousands acres of Marshe Groundes and other Ground within the Counties of Norffolke and Suffolke, latelye surrounded by the Rage of the Sea in divers parts of the said Counties; and for the prevencion of the danger of the like surroundinge hereafter’, which was provided to last for seven years. 15

afterwards Lord High Chancellor, favoured the temporary character of the laws. He had expressed the maxim perpetua lex est, nullam legem humanum ac positivam perpetuam esse; et clausula quae abrogationem excludit initio non valet, meaning it is a perpetual law that no human or positive law can be perpetual; and a clause in a law which is ab initio . 16 In addition, he undertook an initiative to reform the law digest and especially to review all obsolete statutes; thus he introduced a ‘variety of devices which would allow for legal change without sacrifi ce of legal certainty’. 17

The tension between James I and Parliament and the reduction in the number of parliamentary acts highlighted a critical dimension of the sunset legislation – mainly, the renewal of legislation containing a sunset clause. In 1610, on the continuance of the statutes, Hakewill, describing how statutes are enacted, mentions that ‘bills for the revivall, repeal or continuance of statutes, are usually drawn by lawyers being members of the house, appointed thereunto by the house upon some motion to that purpose made, which is usual at the beginning of every parliament’. 18

But the so-called Addled Parliament of 1614 produced no statutes because James I dissolved it after it had been sitting for just a few weeks. 19 The main reason was that the Commons was not keen to grant him the subsidies he was requesting. 20 The dissolution of the Addled Parliament led to different conclusions in academia concerning the fi fty-eight temporary acts which were due to expire that session. According to the Journal of the House of Commons , on 8 April a committee was appointed in order to consider all expiring acts, 21 and on 24 May Mr Moore produced a report according to which the statutes were divided into six parts, and a request was made for the nomination of six subcommittees to evaluate them. 22

On the one hand, Hinton claims that the acts lapsed, and he stresses that they were not even renewed in the Parliament of 1621. 23 On the other hand, Moir argues that none of the temporary acts lapsed, because the Lord Chancellor declared that ‘according to its terms this assembly was to be no parliament, but it was dissolved and annihilated as though no such thing had ever been’. 24 According to the fi ndings, it was commonly accepted that if the Parliament were assembled without passing legislation, the assembly of the members of

the expiring laws did not expire but continued until the fi rst next session.