seen and clearly otherwise yet he thinks my Lord Coke will bear him out and to this purpose he cites two Places one where he supposes that the Lord Coke not onely authorizes this sense of the Case but asserts the Prerogative in much higher Terms than they would presume to do and by the second he would have it believ'd that if the Lord Coke be a faithful Reporter all the Judges of England took that Case in the same sense The first is the Case of Customs 24 Eliz. which is pregnant with many Objections against its being of any force in this Case 1. The Book is of suspected Authority being printed in the late Times and what the Lord Coke never own'd or thought fit to print in his Life-time 2. This comes foisted in among Cases in the time of King James without any parallel Case which might occasion the placing of it there 3. It was when the Lord Coke was but a young Reporter it being ten Years before he was King's Sollicitor 4. It is not onely no Point in question relating to the Case where 't is cited and so extrajudicial but wholly foreign to it For the Question was Whether Goods sold before they were landed were to pay Custom within the Statute 1 Eliz. c. 11. Wherefore being barely a Memorandum of a young Reporter no way occasioned by what went before it cannot possibly have any weight 5. The fancy'd Reason there given why the King may dispense with the Statute of Sheriffs is none at all for whereas it says that the King has a Sovereign Power to command any af his Subjects to serve him for the Publick Weal and this solely and inseparably annex'd to his Person and this Royal Power cannot be restrained by any Act of Parliament there is no Authority cited for this but the Case 2 H. 7. which as appears to any body that reads it neither has that Reason mention'd so much as by any one Judge nor in the least goes upon the Point of the Prerogative Besides if the King can command any Subject to serve him for the Publick Weal either he is to be Judge or the Laws If the latter then no Person not qualified by Law is oblig'd to act nor tho' qualified to do any thing forbid by the Laws If the former as the Words imply then the King's Commands may be pleaded to justifie any ill Minister who has rendred himself obnoxious to the Laws But that this cannot be is sufficiently evinc'd by necessary Examples in all Ages And this by the way may shew how false as well as pernicious that Doctrine is which tells us That 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the New Testament always signifies the Authority of a Person not of a Law Or as another has it to the same purpose By Higher Powers it is evident we are to understand the Persons of Sovereign Princes or Governours not the Laws and Constitutions as our Republican Doctors pretend Of the same Batch is another memorable Position That the King 's most illegal Acts tho' they have not the Authority of the Law for indeed to say they have would be a Blunder with a witness yet they have the Authority of Sovereign Power Some will say that this is qualified by what follows Which is irresistible and unaccountable as if the King had this Power onely so far as it is irresistible and unaccountable Whereas it is evident the Proposition is entire before being the Medium whereby he would prove that the King 's illegal Acts are not inauthoritative in proof of which Medium he afterwards affirms That the Sovereign Power which made the Laws and can repeal and dispense with them is inseparable from the Person of the Prince Reduc'd to a Syllogism it runs thus The Authority of Sovereign Power is irresistible and unaccountable But the King 's most illegal Acts have the Authority of Sovereign Power This is an entire Proposition upon which he concludes Ergo The King 's most illegal Acts are irresistible and unaccountable This Assumption he goes to prove from the Supposition that such a Sovereign Power as he describes is inseparable from the Person of the Prince upon which or the like Doctrine another raises this comfortable Use In all Sovereign Governments and such he at large endeavours to shew England to be Subjects must be Slaves as to this Particular they must trust their Lives and Liberties with their Sovereign But for the Honour of our Gown this may be said That such Hereticks never appear'd among Lawyers till Divines began thus to wrest the Laws and Scriptures to their own damnation But as the former Quotation out of the Lord Coke can do Sir Edward Herbert no service upon the Reasons above shewn much less can the other which is one of Sir Edward's usual Perversions He tells us That it is resolv'd by all the Judges if my Lord Coke be a faithful Reporter that it is agreed 2 H. 7. That the King may against the express Provision of the Act 23 H. 6. dispense with that Act for that the Act could not bar the King of the Service of his Subjects which the Law of Nature did give unto him He adds This is reported unless my Lord Coke had a mind to deceive the succeeding Judges and draw them in to give pernicious Opinions as the Sense of all the Judges of England in King James 's Time in the Exchequer-Chamber Whereas the Lord Coke on purpose to prevent such an abuse of his Words says in the beginning of the Case I shall give no just offence to any if I challenge that which of right is due to every Reporter that is to reduce the Sum and Effect of all to such a Method as upon consideration had of all the Arguments he himself thinketh to be fittest and clearest for the right understanding of the true Reasons and Causes of the Judgment and Resolution of the Case in question Upon which it is evident that if any one of the Judges mentioned this the Lord Coke is a faithful Reporter but had he been silent as to this matter no man could suppose that such a tedious Argument as that in Calvin's Case was the Resolution in which the Judges concurred in every Expression But Herbert's own Eyes might and ought to have satisfied him that the Judges 2 H. 7. gave no Determination upon the 23 H. 6. nor does the Book say that so much as any one Person spoke to that Statute or mention'd the Reason devis'd in Calvin's Case for that the Act could not bar the King of the Service of his Subject which the Law of Nature did give unto him Nor could Sir Edward chuse but know the absurdity of that Ground for according to that all ought to be left in the State of Nature as it was before any Law made so that not onely any Person might act tho prohibited by subsequent Laws but he might act any thing forbid by any
onely the Subject of present Admiration but have been plainly foretold in past Ages and will be celebrated in all future But to return from this short Digression 'T is manifest that Serjeant Glanvil speaks as well of such Laws as are positive as those that are declarative such as confer an inherent Right as that confirm and of Statute as well as Common Law not to be dispens'd with so that he is manifestly on our side and seems not in the least to have exceeded the Lord Coke where he makes so express an Exception of our Case from that Dispensing Power which he allows By inherent the Serjeant can mean no more considering the import of confer than actually vested and inherent and inseparable by any less Power than that from which it was derived Thus in relation to those Prerogatives that have been counted inherent and inseparable in relation to Penalties and the like the true meaning can be onely that while they continue they are not to be separated and transferred over to another Yet no thinking Man will doubt the Power of a Parliament in relation even to them and if they cannot be receded from in particular at least they may in gross when a King does cedere imperio or abdicare Regnum which most Prerogative-Casuists own may be not onely by actual cession from the Government but by Acts amounting to an Abdication and shewing a fixt Intention no longer to treat his People as Subjects Nor perhaps could there be greater Evidence of such Intention than the dispensing at a lump not barely by retail to particular Persons with those Laws which were made by the united Wisdom of the Nation to secure it as much as they thought Humane Means could or at least the Court would yield to against those real Dangers which were in their immediate prospect Nor in all probability had this Enclosure been laid waste if the Dispensing Judges had not made the first Gap. As to Sir Edward's suppos'd clear Concessions of this Power from all the Commons of England 1 H. 5. they are quite otherwise than he represents them nor would be conclusive to his Point however In the first says Sir Edward The Commons pray that the Statutes for voiding of Aliens out of the Kingdom may be kept and executed to which the King agrees saving his Prerogative that he may dispense with whom he pleases and upon this the Commons answered That their Intent was no other But the Record says Sauvant a luy sa Prerogative Saving to him his Prerogative Whatever that was they declare they never intended to injure it Then it goes on with the Copulative and which adds new Matter and is dishonestly left out by Sir Edward Et qil purra dispenser ovesque cex queux luy plerra AND that he may dispense with whom he pleases Which is an additional Grant or Licence to that King but that this Saving is but a general Saving of the Prerogative appears by the very next Record which he cites of the same Parliament Sir Edward's Words are In the same Parliament when the Commons pray That the Statutes of Provisors Statutes of the same nature with this in our Case for they were made against the Court of Rome's encroaching Jurisdiction in England I say when they make the like Prayer That these may be put in execution being admonished by the King's Answer in the former Case they themselves insert in their very Prayer a Saving for this Prerogative of the King 's and then the King agrees to it Where he would insinuate that this Prerogative of dispensing with particular Persons is there sav'd when the Record is express to the contrary The Words in English are Also the Commons pray for the Good and Profit of the Realm That all the Statutes made against Provisors in the Times of the most Noble Kings E. 3. R. 2. H. 4. your Father whom God be merciful to may stand in their force and may be held and executed in all Points and that no Protection nor other Grant to any Person by our Lord the King working to the contrary in forbearance of the Execution of the said Statutes be allowable or available to any Person whatsoever in this Matter And if any thing be done to the contrary let it be held for null or void Saving all times the Prerogative of the King. The King answers Let the Statutes thereof made be held and kept Which is plainly meant according to their Prayer without the King 's impeding the Execution of them by any Protection or other Grant to any Person whatsoever and if such Grant be that it shall be void Is not this as much as to say That no Non obstante shall make any such Grant good Oh but Sir Edward will tell us That this shews that the Parliament thought the King could otherwise have dispens'd with those Acts. By no means it onely argues an Abuse crept in which Matthew Paris shews to have been as early as the time of H. 3. and likely to be allow'd of by the Judges but the Parliament would prevent even that and surely they would never provide that a Non obstante or Grant to a particular Person shall be void if they thought the King had a Prerogative to defeat this when he pleas'd much less when they expresly pray against such an Abuse can they be thought to contradict themselves and in the same Breath that they desire that no Person whatever may be dispens'd with yet leave the King a Prerogative to dispense with whom he pleases The absurdity of which Reasoning he might have seen in that excellent Speech of Serjeant Glanvil which he himself receives as the Sense of the Commons of England assembled in Parliament Wherefore the Savings in both the Records can be but general Savings of such Prerogative as the Kings had whatever it were Which the Kings as they began to encroach upon the People or to be Jealous of their Encroachments would have inserted out of abundant Caution before they would yield to several Acts. And these being Acts of Parliament which could pass but as the King consented the People were forc'd often to gild the Pills with such Savings but 't was otherwise of Judgments in Parliament to which no Consent of the King was requisite Farther yet Admit the King had a Prerogative of dispensing with particular Persons both as to Aliens and Provisions yet there could no general Rule be taken from thence because it would onely argue that the fondness for Aliens and fear of displeasing the Court of Rome had at first occasioned the reserving the Power of easing some particular Persons without which the Kings would pass no Act against them However it was the frequent Complaints of the Commons and Acts made against both the one and the other shew that those Laws were little regarded or executed and yet that the King had not a Prerogative allow'd him any
methinks he could not but observe this Contradiction Wherefore the Rule there admit it were a Judgment in Law as it was not being onely spoken obiter by one of the Judges can be applied onely to such Cases as are there cited The first is that of Coining Money which goes upon the ground in Moor's Reports where 't is said that such Statutes as give a Prerogative may be dispens'd with and that of shipping Woolls at Calice the King's Staple is of the same nature and both sufficiently shew the Distinction of malum prohibitum from malum in se to relate barely to such things as become evil by accident as they are against an accidental Prerogative Which no way interferes with the Rights of the Subjects in general or particular And I much wonder that Sir Edward Herbert should cite my Lord Vaughan in the Case of Thomas and Sorrel as confirming what he would infer from the Year-Book when Lord Vaughan says That old Rule has more confounded Mens Judgments on the Subject than rectified them and himself denies that the King can dispense with every malum prohibitum by Statute tho' prohibited by Statute onely Oh but my Lord Vaughan shews that a Dispensation does jus dare and makes the thing prohibited to all others lawful to be done by him that has it Does he say this of every malum prohibitum By no means Wherefore we must apply it to the Case then in question which concerned Wine-Licences about which the King had a Prerogative by Statute-Law And the dispensing with that falls within the Rule in Moor agreeing with the Lord Coke in the Case of Penal Statutes Yet even thus much was a Point gain'd by the Prerogative since the first of H. 7. for it is then made a Doubt before all the Judges of England in the Exchequer Chamber and adjourned over for the difficulty Whether the King could license the Shipping Woolls elsewhere than at Calice one of the very Instances which Sir Edward Herbert relies on And Chief-Justice Hussey was positive that the King could not license it tho' indeed the Chief-Baron and some others held as Fineux did afterwards Wherefore no body of less assurance than our Chief-Justice can say from these Cases results this plain Syllogism Whatever is not prohibited by the Law of God but was lawful before any Act of Parliament made to forbid it the King by his Dispensation may make lawful again to that Person who has such Dispensation tho' it continues unlawful to any body else c. In which if we grant his Major I will own the Conclusion to bring it to Sir Edward Hales his Case is not criminal Yet the Proposition is so pernicious striking at the very Foundations of our Government that if there were a Resolution in stead of an extrajudicial Opinion giving that Countenance which even that loose Opinion does not yet it ought to be rejected For if all Acts of Parliament contrary to Magna Charta are void as some have held I am sure much more so would such Resolutions of Judges be and that such an one would be contrary to that Great Charter is evident for no Man can say that all things prohibited by Magna Charta are prohibited by the Law of God. To come to Sir Edward's next Great Case as he calls it but indeed the onely one which has colour'd the Resolution to the World which is that 2 H. 7. Notwithstanding his Promise he has not been so fair to give the Words of that Case or so much of them as is material lest every body might judge of how little use it would be to him nay lest Men should be for satifying their own Eyes he has not directed to the Folio The English of the material part is thus In the Exchequer Chamber all the Justices were shewn for the King how King Edward the Fourth by his Letters Patents had constituted the Earl of N Sheriff of the same County and had granted the said Earl the Office of Sheriff of the said County for the Term of his Life with all the other Offices thereto belonging rendring to the King at his Exchequer annually 100 l. without any Account or any other thing to be given for it c. Now 1. Whether this Patent was good And also 2. How this Patent shall be intended were the Points in question And as to the first Point the Justices held the Patent good for it is a thing which may well be granted for Term of Life or Inheritance as divers Counties have a Sheriff by Inheritance and this commenc'd by a Grant of the King. Then was shewn a Resumption and then was shewn a Proviso for H. Earl of N. so that the Patent remains in its force Radcliff shews the Statute of 28 E. 3. c. 7. and 24 E. 3. c. 5. That no Sheriff shall be more than one Year c. altho' he had a Non obstante And notwithstanding this that the King shall always have his Prerogative as of the Value and the Certainty of the Land and other things granted by the King and of Woolls shipp'd and of Charters of Murder and many other Cases where the Statutes are That Patents that want these things shall be void yet the Patenrs are good with a Non obstante But without a Non obstante the Patents are void by reason of the Statutes so here the Patent with a Non obstante c. This is all that is said in the Book upon the first Point upon which 't is observable 1. By the Book it would seem that this Radcliff was but a Serjeant at Law for at the end of the Case Brian Justice demands of Brian Radcliff c. Yet indeed I find upon search that he was a Baron of the Exchequer 2. What Radcliff says is after the Resolution of the Judges over and no way influenc'd that 3. Whereas Sir Edward Herbert says the Resolution was upon 23 H. 6. c. 1. Radcliff who should better know the Subject of Debate discourses only concerning the Statutes 28 E. 3. c. 7. and 12 E. 3. c. 5. which are barely prohibitory without any mention of Non obstantes or any voiding or disabling Clause Indeed Radcliff it being upon a sudden Discourse as the Book shews mistakes the Statutes as if they had such Clauses and Brook who cites part of the Patent which it seems he had seen says there was in it a Non obstante to the Statutes 28 E. 3. c. 7. and 12 E. 3. c. 9. Fitzherbert indeed says R. objected the 23 H. 6. but for that sit liber judex 4. But above all tho' our Chief-Justice calls them the Judges Enemies who say the Point of Non obstante is not resolv'd in this Case which he calls Confidence and that they may as well deny one of the ten Commandments 't is manifest beyond contradiction that the Resolution ended at issint que le Patent demurr en
more for particular Persons than for all in general Sir Edward has five other trivial Instances of the Dispensing Power which however I shall not omit One is the Dispensing with the Statute 8 R. 2. c. 2. which requires that no Man should go Judge of Assize into his own Country But for this there is onely Practice which has pass'd sub silentio and so could be of no Authority in Law Besides the Statute is barely Prohibitory and does not render the Patents void if otherwise yet I cannot say but an Information would lie tho' there were a Non obstante in the Case The second is of dispensing with the Statute 10 E. 3. c. 3. which provides That whoever has a Pardon of Felony shall find Sureties of the Good Behaviour Of which he says as of the other That it has been constantly dispens'd with ever since it was made But if the Practice had been so which he does not prove it would not avail unless it had come in question judicially Whether the Pardon would be valid to one who had not given or at least tendred Sureties Indeed there is a Case in our Books where the Court did not require Sureties because of a particular Clause in the Pardon dispensing with it but this was no earlier than 16 Car. 1. the Judges of which time paid sufficient deference to Prerogative but that Case seems to be not onely primae impressionis and without any Reason given but in effect condemn'd by the Reporter as he shews that the Court abus'd their Discretion if they had any in the Matter T was the Case of Sir Matthew Mints who appear'd to be guilty of several Misdemeanors for which he deserv'd to be bound to the Good Behaviour committed after the time to which he was pardon'd The third and fourth Instances scatter'd from the rest are of dispensing with Pluralities and Bastards entring into Priests Orders which if possible will be less serviceable to him For 1. Such Dispensations are never granted by the King but by the Archbishop and the King onely licenses or confirms the Archbishop's Dispensation in unusual Cases 2. That the King's Licence or Confirmation in Cases unwont as the Statute has it is of any force is owing to the Statute 25 H. 8. c. 21. 3. Even in usual Cases where the Archbishop might dispense tho' the King's Confirmation be added yet unless it come in due time it will not prevent a Lapse incurr'd upon the Statute 21 H. 8. c. 13. against Pluralities as was adjudg'd in Digby's Case tho' the Dispensation came before Induction And this comes up fully to one of the Points in Sir Edward Hales his Case which our Chief Justice has not been so fair as in the least to mention to be a Point in the Case nay quite contrary he supposes it to be a Case where a Disability is annex'd as a Penalty and that Penalty is not to be incurr'd before Legal Conviction and where the King's Dispensation makes the thing dispens'd with lawful and consequently prevents any Conviction or Penalty at all forgetting that in the very State of the Case he owns there was a Conviction before the Dispensation came so that here was a Disability actually incurr'd and that upon Record as appears in the Pleadings and while that Record remains there is no falsifying of it tho' in fact the Conviction were before the three Months given in the Statute to prevent a Disability and he had no other Means than either to plead no such Record or to bring his Writ of Error Wherefore this Dispensation comes clearly within Digby's Case as being too late supposing otherwise it were valid As Sir Edward shews that he has read Thomas and Sorrelâ—s â—s Case he might have known another Reason given of these two Cases viz. That the King may dispense with a Bastard to take Holy Orders or with a Clerk to have two Benefices with Cure which were mala prohibita by the Canon Law and by the Council of Lateran not by Act of Parliament which is most true For these are mentionâ—d in the Book of H. 7. before any Act made against Pluralities There is another Instance in that wild Annotation upon the Case of Customs in the 12 Rep. where 't is said See 4 H. 4. c. 31. in which 't is ordain'd That no Welshman be Justice c. in any part of Wales notwithstanding any Patent to the contrary with Clause of Non obstante licet sit Wallicus And yet without question the King may grant with a Non obstante Nor do I question it neither even before 21 Jac. c. 1.38 when that Statute was repeal'd provided the Welshman use not Welsh Speech and this by 27 H. 8. c. 26. But as to these three last Instances it might be said further That if they were stronger than they prove yet they might fall under the Difference receiv'd by him from Lord Vaughan where he says The King may dispense with Laws made pro bono populi complicati but not with such as are made pro bono singulorum populi in which the Lord Vaughan is not so absurd as to mean that tho' the King cannot dispense with a Law in which any Man in particular is so far interested as to be intitled to an Action for himself alone yet he may with those in which all the Subjects are interested But his Meaning to make him consistent with himself must be restrain'd to Lord Coke's Sense upon the Penal Statutes which makes this Power to be onely where the King as Head of the Commonwealth is trusted by all the Realm in which sense he alone is to look after the Interest of the populus complicatus under him as Head. Thus Lord Vaughan 1. expresly qualifies it when he says They are pro bono populi complicati as the King in his Discretion shall think fit to order them for the good of the whole 2. He illustrates it by the Example of a Pater-familias whose Estate he tells us may be said to be pro bono communi of his Family which yet is but at his Discretion and Management of it and they have no Interest in it but have Benefit by it 3. Both he and Sir Edward Herbert allow Instances where every particular Man is not entitled to his Action and yet the Statutes are own'd to be pro bono singulorum populi and not to be dispens'd with and such are Magna Charta and those other Laws mention'd by Serjeant Glanvil and Sir Edward And if some difference can be found between the Interest singulorum populi in all those Statutes and in ours to use his words I wish any man would shew me any such difference or else we must say That not onely the former Resolutions but Lord Vaughan here as well as where I before observ'd is full against him nay even he is against himself which I would be loth to think
the thing lawful nor could this in the least be inferr'd from the other because however an Act may be made void or tortious Indeed in the Reign of R. 3. whose Character blemishes the Judgments of his time it was held by all the Judges in the Exchequer-Chamber that the King might license the shipping of Wooll elsewhere than at the Staple yet even they were not of Opinion that the License made the thing lawful for then the Discoverer could not have had his share which they agreed that he ought to have and so the License was only as far as it concern'd the King. They also setled the other Point which before was a Doubt That a Pardon before an Information brought would defeat the Informer But then the Authority of the first Point is suspended by a Doubt remaining before all the Judges afterwards assembled upon a rehearing of this Cause in a more setled time Indeed they agreed the other of an Information after a Pardon but hitherto there is no manner of Proof of any Case wherein the King by his Dispensation could discharge the Penalty given not only to himself but also to an Informer who has his Action given by Statute But for this we must take a Leap downwards as far as 13 Jac. 1. which we may ballance with the 7th of his Reign when it is held by Lord Cook That where a Statute concerns the Benefit of the King alone he may dispense with it by a Non obstante And BY THE COURT that where it concerns the Benefit of the Subject the King cannot dispense 7. Whereas our Chief Justice thinks that a Statute's providing against Non obstante's shews that the King could otherwise have dispens'd with the Act by a Non obstante it is not onely unconcluding because it might be no more than an Argument of an Abuse of the Law but turns very strong against him For admit the Resolution of the Judges 2 H. 7. were as he contends yet he who makes so much of a Concession of the Commons of England assembled in Parliament when he thinks it of his Side ought surely to yield that the Judgment of King Lords and Commons is of uncontrollable Authority Wherefore when not only one but several Parliaments provide that all Non obstantes shall be void is it not plain that their Judgment was that such Non obstantes could not be set up by any Resolution of Judges And for this we have the Judgment of King Lords and Commons and that of but late days That even where a Grant is made to the King where 't will be said he is solely entrusted for the Publick Good yet it may be out of his power to defeat it by a Non obstante This appears by the Statute 19 Car. 2. c. 8. which provides That no Letters Patents granted to any Person of Exemptions from Subsidies c. shall free them from the Charges of any Sum granted by that Act and all Non obstantes in Letters Patents made or to be made in bar of any Act or Acts of Parliament for the Supply or Assistance of his Majesty are thereby declared to be void and of none effect And even where Statutes have not expresly provided against Non obstante's tho' the Statutes were such as restrain what many take to be the King's Prerogative yet if we receive the Sense of Lords and Commons the King has no Prerogative warranting Non obstante's to them as appears by the Articles against King Richard the Second one of which is For that the King contrary to the Laws and Wills of the Justices suffer'd Sheriffs to continue longer than one Year c. This were enough to set aside all Pretences taken from Calvin's Case tho' as Sir Edward Herbert pleasantly suggests it were resolv'd there That that was resolv'd 2 H. 7. which was never mention'd till after the Resolution Here is the Authority of Lords and Commons in competition with that of Mercenary Judges And if the Concessions of the Commons alone assembled in Parliament are of weight with him I know not why their Denials ought not as well to be urg'd against him which if we may do not onely the Fictions and loose Reasonings in Calvin's Case but the main Resolution there may be justly call'd meer Court-Law Such I am sure it is that the honest House of Commons 4 Jac. 1. would not bear it and any one that reads the Arguments of those Learned Men who manag'd the Conference with the Lords upon the Question of the Union of the two Kingdoms may easily see how inexcusable the Judges of that time were to proceed to the Judgment in Calvin's Case after they had been so enlightned Nor could they but know that the then Parliament was broke up because they were not so complying as the Judges shew'd themselves both then and afterwards But they secur'd their Cushions by it while Sir John Bennet Father of the present Lord Oswalston lost his in the Prerogative-Court and had a swinging Fine impos'd upon him into the Bargain several Years after upon pretence of Extortion but as I am well inform'd the real ground was his disrellishing Speech in Parliament upon this Subject 'T is well known some Princes us'd to have good Memories that way Manet altâ mente repostum c. 8. Non obstante's having no other Foundation than in the Encroachments of Princes and Servility of Judges especially if we except Cases concerning the King alone they ought not to be strain'd to any new Case The Advice of Bracton will rise up in Judgment against such Men who tells them If such things never hapned before and the Judgment is without Light from former Cases and difficult let it be adjourn'd to the Great Court. According to which Adjournments to ensuing Parliaments have been frequent in former days when there were more Learned Judges and that as often for the weightiness of the Matter as intricacy of the Points 9. But for the closing Aggravation Whereas our Chief Justice denies all indirect means for procuring Opinions and stands upon his Innocence challenging the World to lay any thing of that kind to his charge I think by this time few will the less suspect him because of his Assurance if either Threats or Sollicitations can be prov'd upon him the World will judge either of them indirect Means and I am much misinform'd if both cannot be justly charg'd If after all he can excuse himself with renouncing Infallibility and making Asseverations of keeping to the clear Dictates of his Conscience I must say Judges in former Ages have had hard luck and been made Examples to little purpose King Alfred would lose the Reputation of his Justice in hanging above thirty Judges and Parliaments have been very barbarous to proceed against others as Traytors who yet either were so ingenuous to confess their Faults or at least not so provoking as to
this Non obstante Matthew Paris calls a detestable addition against all Reason and Justice and when the year after King Henry urg'd the example of the Pope for Non obstantes The Prior of Jerusalem says God forbid you should use this unpleasant and absurd word as long as you observe Justice you may be King and as soon as you violate it you will cease to be King. Which shews how little Foundation in Law it then was thought to have and what the whole Nation thought of the Pope's use of it may be seen at large in Matthew Paris and Mr. Prin's Animadversions on the 4 th Institute Farther the Reasons given why the King ought to have this Power fail here upon many accounts 1. In that the Interest of the whole of which the Legislators are the best Judges when they make the Law without Exception ought to outweigh all private Inconveniences 2. The Law has provided a more certain and equal Remedy having taken as sufficient Care for the meeting of Parliaments once a Year at least and I may say sitting too as it has for the sitting of the Common Courts of Justice as appears from the several Statutes in Print and others in the Rolls which avoid the common Cavil upon the words Oftner if need be And these were like the famous Triennial Act Provisions for the greater certainty of meeting so often at least but no Recessions from the old Law which as appears both by the Mirrour and the Life of King Alfred was for the Great Council to meet twice a year at London 3. The great Reason assign'd in the Latin Quotation from the Lord Cook Propter impossibilitatem praevidendi de omnibus particularibus which is after distinguish'd as to Person Time and Place can by no means be applied to the Case in question For 1. The Law was made but very few Years before their Lordships Resolution and not grown more inconvenient by length of time to any particular Person than it was at the making of the Act. 2. The Law-makers had in their immediate prospect every particular Person of the Romish Communion and the Time when and Place where the Danger would happen if any such were Commissioned Let us now see what help he can have from his second Quotation from the Lord Cook which is 7 Rep. f. 73. but he intends I suppose f. 37. and would have it believ'd that it was the Opinion of all the Judges of England 2 Jac. 1. That the King may dispense with any particular Person that he shall not incur the Penalty of the Statute tho' it be an Act made pro bono publico and that this is a Trust and Confidence inseparably annex'd to the Royal Person of the King in which 1. He again overthrows his Distinction of malum in se and prohibitum making that Power at large in relation in any Statute pro bono publico 2. He manifestly perverts the Lord Cook 's sense whose Words are When a Statute is made pro bono publico and the King as Head of the Commonwealth and the Fountain of Justice and Mercy is by all the Realm trusted with it this is a Trust and Confidence inseparably adjoyn'd and annex'd to his Royal Person in so high a Point of Sovereignty that he cannot transfer it to the disposition or power of any private Person or to any private Use for this was committed to the King by all his Subjects for the Publick Good c. But true it is that the King can upon any cause moving him in respect of Time Place or Person c. make a Non obstante to dispense with any particular Person that he shall not incur the Penalty of the Statute Where the sole Question was of transferring over a Penalty granted to the King as entrusted by all the Realm to see the Statute put in execution by inflicting the Penalty This Trust is adjudged inseparable and not to be transferr'd over but that however the King may dispense with the Penalty granted to himself Upon which I must say our Chief Justice has made a very foul Stretch for what is this to the Informer's Part concerning which the Question before him was But surely there is a mighty difference between these two Propositions Where the Subjects have entrusted the King with a Statute made for the Publick Good this Trust is inseparable and cannot be transferr'd to another but the Statute so entrusted may be dispens'd with which is all that is to be gather'd from the Lord Cook and this Tho' an Act be made for the Publick Good yet the King may dispense with it and this is a Trust and Confidence inseparably annex'd to the Royal Person of the King which is Sir Herbert's perverse Comment In short Lord Cook says Where the King is entrusted with the Execution of a Statute made for the Publick Good he may dispense with that Statute Sir Edward Herbert says He may dispense with any Statute made for the Publick Good. Upon which 't is to be observ'd That the Question in the Lord Cook was not of Dispensing but granting over the Penalty which Penalty he says is not to be transferred over The other would make it of Dispensing and that that Power is inseparable and not to be transferr'd so apparently changes the State of the Question His next Step is to the Year-book of H. 7. f. 11 12. in which he leaves us to seek the Year which is 11. This he calls the first and great Case which he cites wherein the King 's Dispensing Power is described and limited There is a diversity says the Book between malum prohibitum and malum in se as a Statute forbids any Man to coin Money and if he does he shall be hang'd this is malum prohibitum for before the Statute Coining Money was lawful but now it is not so and therefore the King can dispense with it So if a Man ship Wooll in any place but Calice it is malum prohibitum because it is prohibited by Act of Parliament But that which is malum in se the King nor no other Person can dispense with as if the King would give a Man power to kill another or license one to make a Nusance in a High-way this were void and yet the King can pardon these things when they are done Upon this Case 't is observable That the Power of Dispensing is here asserted in relation to Things and not Persons Wherefore according to this taken in Sir Herbert's Latitude the King may grant Dispensations to all in general where the Matter is only malum prohibitum whereas he himself owns that the nature of a Dispensation is particular and given to particular Persons by name 2. Many things in Magna Charta nay the most are but mala prohibita and so Magna Charta its self may be dispensed with when he himself owns that the King cannot dispense with one Tittle of Magna Charta And
that Lord Vaughan is who owns That the King cannot dispense in any Case but with his own Right and not with the Right of any other which he confines not to individual Persons consider'd singly for he says expresly If the Wisdom of the Parliament hath made an Act to restrain pro bono publico the Importation of Foreign Manufactures that the Subjects of the Realm may apply themselves to the making of the said Manufactures for their Support and livelihood to grant to one or more the Importation of such Manufacture without any Limitation non obstante the said Act is a Monopoly and void For this I am sure particular Persons are not entitled to Actions upon their own accounts Indeed he supposes the King may license limiting the Quantity and that for private uses not by way of Merchandise as not being against the End of the Act. Wherefore in our Case all the Subjects being interested as Protestants their Support and Encouragement being provided for by the Act and the letting Papists into the Government against the End of it who can doubt but Lord Vaughan would have pronounc'd Hales's Dispensation void And whereas our Judge pleads in his excuse That tho' this Law was made for the Interest of Religion the Offence is not directly against Religion but against a Politick Constitution tho' made for the Interest of Religion he might not onely have learnt from Lord Cook above That the Subjects have such an Interest as the King cannot dispense with in what is made void or tortious that is unlawful for the good of the Church but Lord Vaughan shews That there are mala politica not to be dispens'd with and instances in some things which are Nusances in specie Now besides what already has been shewn to disable these three last Instances urg'd by Sir Edward That they are not pro bono singulorum populi as that Rule is vindicated from Misapplications may appear in that neither of them affect all the People in general As to the Clergy-men they can only do injury in their respective Parishes where they are Benefic'd and the Welshman in that part of Wales where he is an Officer nor besides can the Clergy-men be suppos'd much to prejudice the Interest of Religion being the Plurallist cannot supply his Cure but by one qualified and the Bastard might be a good Man and good Preacher And yet even these would fall within Vaughan's acceptation of his own Rule for he shews That Laws made for the benefit of but part of the Kingdom Artificers and Husbandmen cannot be dispens'd with to any one Person to frustrate the Ends of the Statutes This leads to another Flourish which he makes with the Vaughan's Authority in answer to the Objection That the Law was made pro bono publico and was highly necessary for the Publick Indeed Lord Vaughan will have it that the sole Reason why a Statute cannot be dispens'd with is not that the Law was made pro bono publico because all Laws were made for Publick good and yet Dispensations had been allow'd in some nor was the Degree of Publick good that which alter'd the Case yet he shews that the Extent of it does and seems still to keep to Cook 's Rule Where the People had entrusted the King with the Law as Head of the complicated Body there the Trust was entirely in him but when the Law extended in Interest not onely to individual Persons but to a considerable part of the Nation much more when to all in either of which Cases the Statute is pro bono singulorum populi in neither of these can the King dispense And that the Statute in question is of the largest extent appears as the Nation is a Protestant Nation this the Religion establish'd by Law and these Provisions necessary Means to preserve it and therefore tho' the Papists have no benefit by it they are not in Law in this respect any part of the People for People always is taken for them that have Legal Interests Thus when the Statute provides That the People of Counties shall chuse their Sheriffs it relates not to all the People in general but onely to Freeholders Having thus shewn That those Grounds which our Judge pretends to have gone upon afford no Countenance even to his Palliation of the Judgment they will appear much less to countenance it as it was deliver'd which to evince I shall here set it down ipsissimis verbis from that faithful Reporter Mr. Blaney It was on that memorable Day when as another mark of his Sincerity he directed the willing Jury and concurr'd in the infamous Sentence against that excellent Author Mr. Johnson when the Jury was gone out the Chief Justice took occasion to inveigh against spreading of Scandalous Reports about Cases depending in the Court and to prevent any thing of that Nature in the Case of Sir Edward Hales he thought fit to deliver the Opinion of the Judges in this manner C. J. In the Case of Godwin and Hales wherein the Defendant pleads a Dispensation from the King it is doubted whether or no the King had such a Prerogative Truly upon the Argument before us it appear'd as clear a Case as ever came before this Court But because Men fancy I know not what difficulty when really there is none we were willing to give so much Countenance to the Question in the Case as to take the Advice of all the Judges of England They were all assembled at Serjeants-Inn and this Case was put them and the Great Case of the Sheriffs was put whether the Dispensation in that Case were Legal because upon that depended the Execution of all the Law of the Nation And I must tell you that there were then Ten upon the place that clearly delivered their Opinions That the Case of the Sheriffs was good Law and that all the Attainders grounded upon Indictments found by Juries return'd by such Sheriffs were good and not erroneous and consequently that Men need not have any Fears or Scruples about that Matter And in the next place they did clearly declare That there was no imaginable difference between that Case and this unless it were that this were the much clearer Case of the two and liable to the fewer Exceptions My Brother Powel said he was inclin'd to be of the same Opinion but he would rather have some more time to consider of it but he has since sent by my Brother Holloway to let us know that he does concur with us To these Eleven Judges there is One Dissenter Brother Street who yet continues his Opinion That the King cannot dispense in this Case But that 's the Opinion of One single Judge against the Opinion of Eleven We were satisfied in our own Judgments before and having the Concurrence of Eleven out of Twelve we think we may very well declare the Opinion of the Court to be That the King may dispense in this
26. Moor sup f. 714. Hobart f. 146. Vid. Vaughan f. 57. speaking of Lord Hobart's Judgment which is always accurate for the Reason of the Law. Account p. 27. Vid. Grebner cited in the Northern Star. Vid. Nostredamus Cent. 1.33.35.2.68.87.3.16.4.75.89.5.24.26.34.87.6.7.13.28.8.58.9.38.64.10.7.26.56.12.80 5th Stanza at the end Vid. Lord Cook 's c. of Penal Statutes 7 Rep. f. 36. Vid. Grot. de Jure Belli Pacis Vid. Falkner's Christian Loyalty p. 544 545. speaking of the Parisian Massacre c. But if ever any such strange Case as is proposed should really happen in the World I confess it would have its great Difficulties Grotius thinks that in this utmost Extremity the use of such Defence as a last Refuge ultimo necessitatis praesidio is not to be condemned provided the Care of the Common Good be preserv'd And if this be true it must be upon this ground that such Attempts of Ruining do ipso facto include a disclaiming the Governing those persons as Subjects and consequently of being their Prince or King. V. Bishop Bilson of Christian Subjection Ed. 1586. p. 280. I never deny'd that the People might preserve the Foundation Freedom and Form ef their Commonwealth which they forepriz'd when they first consented to have a King. Account p. 24. Rot. Parl. 1 H. 5. n. 22. Qe Dieu assoille A aucuny fait un affair a contre A nully Pur null Vid. Account p. 10. Vid. Serjeant Glanvil's Speech Rushworth's Coll. part 1. f. 573. 575. Account p. 25. Vid. Dr. Stillingst against Cressy from p. 426. to p. 461. Account p. 19. Account p. 19. Sir Matthew Mints Case Crook Car. f. 597. Account p. 31. p. 32. Vid Vaughan's Rep. f. 20. Edes v. Evesque d' Oxford 4 Rep. f. 78. b. Account p. 38. pag. 5. Vid. Rolls Abr. Brook. Fitzh tit Estoppel particularly Statham Si home soit oblige de garder le Peace puis Scire facias issist vers luy de ceo qil bat uneqe viet est trove coup puis cet port brief de trans vers luy de mesm le batie il pled de rien coup il luy estoppera per matter trove al suit le Roy c. So Brook. n. 59. Vaughan f. 358. Account p. 14. Vid. 7 Rep. p. 36. Account p. 21. Vaugh. p. 342. Account p. 27 28. Account p. 11. Supr p. 12. Thomas v. Sorrel f. 350. Ib. f. 347. Vaugh. f. 346. Account p 31. Supr p. 30. Vid. Lord Vaughan f. 339 340. L. Vaughan f. 344 345 346 347. Account p. 22. 2 Inst f. 559. 2 dly So Sibthorp Rushworth vol. 1. p. 422. V. Case of Resistance p. 200. See there such a Sovereignty as makes laws can repeal and dispense with them Fortescue p. 32. Ad tutelam namque legis subditorum ac eorum corporum bonorum rex hujâ—smodi erectus est ad hanc potestatem a populo effluxam ipse habet quo ei non licet potestate aliâ suo populo dominari See this condemn'd 13 14 Car. 2. c. 29. V. Bushw part 2. f. 608. Vid. Account p. 37. Account p. 8. Vid. Grot. de Jure Belli Pacis l. 1. c. 1. Sicut ut bis duo non sint quatuor ne a Deo quidem effici potest ita ne hoc quidem ut quod intrinsecâ ratione malum est malum non sit Account p. 37. 3 dly Account p. 1. Account p. 28. The Case Crook Car. 51. Hutton 134. is of one prest to serve beyond Sea. Witness the great endeavours to make him confess a Plot while he lay under Sentence of death Vid. 14 Eliz. c. 1. Rastal f. 411. * L. Russel's Trial f. 57. Sol. To conspire to levy War is an Overt Act to testifie the Design of the Death of the King and the Errour of my Lord Cook has possibly misled my Lord. This he goes to refute by the Cases of Story and Lord Cobham which were not of levying War within the Kingdom and besides were express'd by the Overt Act of Writing Vid. 3 Inst f. 14. Hales his Pleas of the Crown p. 13. Dyer f. 298. b. Sanderson's Hist of K. James f. 283. * Lib. Assiz 27. pl. 29. Of an Approver Shar'd says Il ne duist passer sans estre duement purge car tout sont en male * At Lord Russel 's Trial I am not certain whether I did hear something about a Declaration c. Trial f. 39. At Mr Cornish 's è contra †That such are not probi legales for Witnesses or Juries vid. 2 Bulst f. 144. alias 154.1 Brownlow p. 34. part 2.47 Rolls Ab. tit Chal. 657. Brook tit Tesmoins penult Fitzher tit Process 208. Dyer f. 34. a. Owen f. 22. Castle main's Trial f. 38.11 H. 4. 41. b. Godbolt 288. Fortescue p. 60. b. Fleta lib. 4. c. 8. Bracton de Coronâ cap. 3. p. 118. b. Rolls Ahr. tit Prer f. 222. Vid. de eodem Baluzium Tom. 1. f. 887.2.362 * Arundel's Case 6 Rep. f. 14. 26 H. 8. c. 1. repeal'd 1 2 P.M. V. 31 H. 8. c. 10. 4 thly Account p. 37. Vid. ib. Account p. 37. Vid. supr p. 40 41. Account p. 9. pag. 10. Vid. sup p. 43. Bracton l. 2. c. 16. Rex habet Superiorem Deum S. item legem per quam factus est Rex item Curiam suam viz. Comites Barcnes quia Comites dicuntur quali socii c. Fleta l. 1. c. 17. p. 17.2 has Superiores Which avoids the Cavil in the Royal Apol. ed. Anno 1684. p. 36. suppos'd to be Dr. Ashtons V. Account p. 23. V. Sup. p. 6. Plowden of Mines f. 322.10 Vaugham f. 419. Nota this was in a Case of less consequence the sending Process into Wales Brook Prescrip n. 6. Stat. West 1.3 E. 1. c. 39. Stat. de quo Warranto 18 E. 1. Prin's Animad f. 133. Vaughan f. 356. Vid. è cont Dr. Brady's compleat Hist dedicated to K. James 2. Pref. All the Liberties and Priviledges the People can pretend to were the Grants and Concessions of the Kings of this Nation and were derived from the Crown Founded upon his suppos'd proofs that W. 1. obtain'd this Land by conquest and govern'd it accordingly V. Brady's first Book p. 23. in Marg. refuted in Jus Anglorum Account p. 8. V. Sup. p. 5. V. Rolls ab tit Prer f. 180. 34 E. 3. c. 21. Nota This is one of the Cases mentioned by Fineux Sup. p. 12. Anno 1667. V. 3 Jac. c. 6. forbidding Trade to the Dominions of Spain 3. Inst f. 186. Rot. Parl. 50. E 3. n. 17 24 28. 51. E. 3. n. 75. V. Account p. 8. 37 H. 6. f. 4. This notrightly abridg'd by Brook tit Charter de Pardon n. 24.37 H. 6. f. 5. a. adjornatur 37 H. 6. 46. V. 5 E 4 f. 34. a. Where a Statute concerns only the King himself which the King may chuse to use at his Will c. 3 H. 7. f 15. b. Chief Justice Hussey citing Fortescue 2 R. 3. f. 12. If any one doubt this upon the words of the Book it appears beyond contradiction from its being brought about again by the Merchants whose Goods were seized 1 H. 7. f. 2. b. 3. a. V. Sup. p. 13. 3 Inst 154. Rolls Ab. tit Prcr. f. 179. Account p. 10. V. Sup. p. 36. Account p. 25. According to Kieble c. 7. but not printed there Vid. the Stat. barely prohibitory 28 E. 3. c. 7. 12 E. 3. c. 9. supr p. 16. V. Knighton Account p. 18. Account p. 25. See them censur'd in Vaughan f. 227 285 401. Moor a. f. 790 to 805. Vid. his Censure 4 Inst f. 336. 2 Inst f. 408. Bracton l. 1. c. 2. Si autem talia nunquam prius evenerint obscurum difficile sit eorum judicium tunc ponantur judicia in respectum usque ad Magnam Curiam Vid. 1 E. 3. 7. b 33 H. 6. 18. a Cest un Act de Parlement nos voilomus estre bien avis devant que nous adnullamus ascun act fait en le Parlement peradventure le matter doit attender jusque al prochein Parlement Account p. 34. Account p. 35. pag. 36. V. Mirrour a. p. 296. to 300. Tresylian Bealknappe c. Knighton f. 2726 2727. ib. f. 2695. Regaliam Ib. f. 2694. V. Glanvil p. 1. Crimen laesae Majestatis ut de nece vel seditione personae Domini Regis vel Regni Exact Collect ed. Anno 1643. p. 35. V. Dugdale's cron Ser. Account n. 33 39. Bilson of Christian Subjection p. 280. Glanvil Prol. Bracton v. l. 3. c. 9. Fleta lib. 1. c. 17. Fortescue c. 9. Mirror p. 9.
Reporters foreign to any matter in question against solemn Resolutions which either wilful Falsifications or criminal Negligence has occasion'd the answering Objections with a Case which never had a Resolution but what he and his Brethren gave when it was brought in by Head and Shoulders onely to be a leading Case to this 5. He could not but know that the Case was faintly argued against Sir Edward Hales either he or the late Empson and Dudley having given the Fees on both sides wherefore 't was comical for the Chief Justice to say That the Case appear'd clear upon the Argument I am sure he is inexcusable that when Causes of less Consequence and of less dark Learning us'd to be argued twice at least this was but once and the learned Mr. Wallop who could have set it in the truest light was refus'd to be heard to it tho' he requir'd it 6. Our Chief Justice might easily have found that the beginning of Non obstante's was within time of Memory which would not be enough to entitle the King to a Prerogative For as 't is in Plowden every Prerogative contains a Prescription for it rests in usage that is such as are not deriv'd from known Grants of the People And he might have learnt from that Great Man whom he would fain draw to his side That Presidents are useful to decide Questions but in such Cases as these which depend upon fundamental Principles from which Demonstrations may be drawn millions of Presidents are to no purpose Time of legal Memory is well known to extend to the Reign of R. 1. and tho' Non Obstante's as I observ'd above are complain'd of within that time as early as 35 H. 3. yet that diligent and faithful Searcher into Antiquity Mr. Prin shews That they were then made use of only to revoke some indiscreet Grants or Priviledges but not to elude subvert or dispense with any Penal Laws or Acts of Parliament till they were introduced by religious Persons after the Statute of Mortmain 7 E. 1. to elude and frustrate the Act. And if this be true I am sure thus far there is no Colour for the late Resolution for they might have seen in Lord Vaughan That the King in that Case dispenses only with his own Right and concludes not the mean Lords Tho' successive Resolutions of Judges are but Evidences of the Law and such as are to be examin'd and rectified by the Constitution and fundamental Maxims of the Inherent Rights and Liberties of a free-born People Yet if Sir Edward had had the diligence to read what might have occurr'd on this Subject or the Honesty to hear it from others he might have known that it is far from being a setled Point That the King might dispense with particular Persons as to whatever is not prohibited by the Law of God and that his Dispensation makes the thing prohibited lawful to be done by him that has it The farther we look back since this Power has come in question the less does it seem allowed Edward 3. with the Assent of that Council which as I observ'd before was chose in Parliament had granted to Merchants Denizens for a time the same Liberty about Staple Commodities which Merchants Aliens had tho' this was not by the King alone and for the Benefit of Natives yet the Merchants fearing that they might be impeach'd in time to come for their Merchandize which they had so pass'd by vertue of such Grants for as much as they were made out of Parliament for their Surety obtain'd a Ratification and Confirmation in Parliament But the vexata questio was about licensing the shipping of Wooll elsewhere than at Calais that the King might do this the Pretence was specious Calais was no part of the ancient Demeasn of the Crown but a new Acquisition whose Interests the King seem'd to have more absolutely at his Disposal according to the Resolution of our Judges before the House of Lords who declared That tho' the Canaries were the Dominion of the King of Spain they were no part of the Dominion of Spain And if Sir Edward had taken notice of Lord Cook where he is against as well as where he seems to favour him he ought to have observ'd That one Lyons a Merchant and Lord Latimer were sentenc'd in Parliament for procuring of Licenses and Dispensations for transporting of Wooll And this they laid to the Destruction of the Staple and of the Money of Calais to the great Damage of the King and Realm Indeed the year after the Latimer's Sentence is remitted at the Request of the Commons alledging that the Charge against him was not true not for defect of matter So that here is a Judgment of the House of Lords in Point against one of those very Cases upon which Court Judges have since founded their Distinction of malum prohibitum malum in se And it is an easie thing to know which ought to turn the Scale After this it came to be a Question before all the Judges in the Exchequer-Chamber Whether this Offence being pardoned which that the King might do after it was committed has not been disputed the Pardon before an Information brought would defeat the Informer of his share There the Court held That if the Suit were the Parties the Pardon should not bar him but the sole Question was Whether the Party was entitled to any Suit being the Advantage was given to the Discoverer which he might have by a Suggestion in the Exchequer but the Statute gives no Action however this receiv'd no Determination at that time But if the Question had then been of a Dispensation and whether that would bar the Informer's Action given by Statute can any man doubt but that they would have adjudg'd it could not When notwithstanding a Pardon and that in a Case where an Action was not expressly given yet it was so doubtful that they would not determine against the Informer but that the Dispensation would not have avail'd with them or at least they would not have lookt upon it to authorize what was prohibited by any Statute appears from other Passages there as where it is said That in a Recognizance of the Peace which is not confin'd to one entered into at the request of a Subject the King cannot pardon or release till the Peace is broken And where a man ought to repair a Bridge the King can pardon only for the Fine due to himself but however the Party shall be obliged to repair the Bridge because this is to the Damage of all the People And to the same purpose is that 3 H. 7. that tho' the King may pardon or free from a pecuniary Mulct before the occasion happen yet he cannot pardon or discharge the Trespass it self and instance is given in voluntary Escapes So far were they from believing that the King in remitting the pecuniary Mulct could make