Selected quad for the lemma: authority_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
authority_n	king_n	law_n	legal_a	2,470	5	10.2354	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A88684	Considerations touching the great question of the King's right in dispensing with the penal laws Written on the occasion of His late blessed Majesties granting free toleration and indulgence. By Richard Langhorn, late of the Middle Temple, Esq;	Langhorne, Richard, 1654-1679.; Langhorne, Richard, fl. 1687.	1687 (1687)	Wing L396A; ESTC R229629	25,471	35

though it be true That the Judges in all Ages were and are the King's Council Learned And the Kings of England have always Claimed and Exercised this Right undoubtedly they would not have done this if their Judges had plainly told them That it was against Law or that the thing had not been clear in its own nature And if there were no Judgments in the Case mention'd in our Law-Books when the thing hath been so constantly practised it rather seems clear That it was so undoubtedly the King 's Right That no Person in any Age ever thought it a Point fit to contest upon or to put it to the Judgment of a Court. There is no dispute but that there have been many Parliaments in former times who have attempted to tear many Prerogatives from the Crown taking advantage of the Wants or Weakness of our Kings And it is as certain that the Generality of our Judges in all Ages have more enclined to lessen the King's Prerogative then to deprive the People of their Liberties either as thinking their own Interest concerned therein as Subjects or as inclining rather to an Aristocracy then to a Monarchy or rather and which is the most probable upon the account of fear of being question'd by Parliaments knowing well that whenever they did pinch hard upon the Prerogative Royal the Kings were generally Merciful in their own natures or might be prevailed upon by their Courtiers to pardon and pass by it and that it was never to be dispaired but that a way might be found to pacifie the displeasure of the Prince who was but one Man and who had no way to punish but only by displacing which was seldome done for an Error of a Man's Judgment But that whenever they happened to fall under the displeasure of a Parliament upon any jealousie of advancing the King's Prerogative too high the Excuses of Human Frailty and of Erring though a real and involuntary mistake did as seldome procure their Pardon as a like pretence would preserve a Person from the punishment of the Law who should stand Indicted before themselves For Courts are not single persons nor is it reasonable they should be their Constitutions being to take care that Justice should be Executed In Terrorem without Favour or Affection knowing that Mercy floweth by the Constitution of our Laws from another Fountain This is said supposing the Objection were True. But Secondly The Objection is before proved to be most untrue by the instances put of the Judgments given touching the Dispensing with Magna Charta Coke lib. 12. fol. 33.34 The Judgment given in 2 H. 7. fol. 6. agreed in Calvin's Case Coke lib. 7. fol. 14. and the Case of Licensing Coyning 11. H. 7. fol. 11. Object VIII That several Privy Counsellors and Great Men in former Times and particularly Cardinal Wolsey and the late Earl of Bristol have been impeached by the Concurrence of our most Learned Judges for Advising the Kings of this Realm to Dispense with Penal Laws Answ I. It is no Dishonour to Parliaments to say that all Impeachments even by Parliaments are not always just and well-grounded though judged to be so at the time when they are framed an instance may be given in the deplorable Case of the Late Noble Earl of Strafford Impeached and Attainted unhappily by a Parliament and that Attainder most happily and justly Repeal'd by this present Parliament Therefore if it could be proved That any Minister of State had at any time been impeached by a Parliament for Advising any of our Kings to Exercise the Right now asserted it would no way prove That our Kings had no such Right by our Laws Secondly But there can be no President shown of any Impeachment against any one Person in any Age by any Parliament or any other Just and Legal Authority for Advising any of our Kings to Dispense with any one or more of our Penal Laws for the Publick Good or in any Case where Publick Advantage or Necessity required such Dispensation Thirdly As to the Cases urged in the Objection they are not to the Point in Question The first of Cardinal Wolsey was as to Licenses That he granted Licenses under the Great Seal being Chancellor for Exporting Goods prohibited by Law for Advantage to himself and his Servants without the King 's Warrunt or Knowledge Coke Jurisdiction of Courts Tit. Chancery foll 90. This in truth was a Grievous Crime to grant Licenses under the Great Seal for Dispensing with Penal Laws without the King's Warrant or Knowledge But this very Charge implyes That this had been no Offence if he had been Authorized by the King's Warrant to Seal such Licenses And every Merchant knows That nothing is more in practice then for the King in special Cases to License the Exporting of Goods prohibited by particular Laws to be ordinarily Exported The Case of the late Earl of Bristol is as far from the Point as the former The Case was thus That Lord had been imployed by King James as his Majesties Ambassador in Spain to Treat touching the Marriage with the then Infanta the King of Spain being Zealous for the Religion of the Church of Rome insisted in the said Treaty to procure some favours for the English Roman-Catholicks The first Proposals as to the matter of Religion related no farther then to a Freedom of Religion for the Infanta and her Servants the Children of the Marriage and her Ecclesiasticks and Religious This could not be without the King 's particular Licenses This the King assented to Rushworth's Historical Collections fol. 4. The King agreeing thus far and the Treaty being prolongued by many Artificial delays The King of Spain urged farther in favour of the English Roman-Catholicks in general But the form and way to be left to his Majesties Wisdom and Clemency that the Mercy mmight be Acknowledged to come from his Majesty To this the said King James and his Late Majesty both Signed Rushworth fol. 287. And after all this King James for farther Satisfaction in this matter did by the Lord Conway his Majesties Secretary of State by a particular Declaration in writing Signed by the said Lord Conway and Dated Aug. 7. 1623. Declare and Engage That his said Majesty would cause a present Suspension under his Majesties Great Seal of all those Penal Laws Charges and Forfeitures whereunto the Roman-Catholick Subjects of his Majesty had thentofore been subject and in the same Grant and under the same Seal to give a Dispensation and Toleration to all the Roman-Catholicks His Majesties Subjects as well Priests as Temporal Persons c. Rushworth fol. 288.289 The Marriage not taking effect and Animosities and Feuds happening between the then Duke of Buckingham and the said Earl of Bristol the said Earl after that King's Death in Parliament impeached and wrought with the House of Commons to Impeach the said Duke And the said Duke prevailed with his then Majesty first to Exhibite an Impeachment against the said Earl

in the same Parliament thereby intending to make the said Earl either to retract or to forbear prosecution of his Charge against the said Duke or to invalidate his Testimony And true it is that the Fifth Article of the Charge against the said Earl was That he Counsell'd and perswaded King James to Grant and to allow unto the Papists free Toleration and Silencing of all the Laws made and standing in force against them The Charge is not That he Counsell'd the King to Grant a Publick and Free Toleration But to Dispense with the Laws For Toleration and Dispensation import no more than a permission to Exercise their Religion in their private Houses and to Suspend the Execution of the Laws there mention'd for a Time. All which the said King had power in pursuance of a Treaty and Articles between Crowns upon the breach or performance of which Peace or War Common-Good or Publick-Prejudice depend to do But to Counsel a free Toleration imports an Allowance of Publick Worship which as Affairs then stood here could not consist with Publick Peace The Temper of this Nation not enduring it nor could the Papists have been secured from the Rage of the People in the Enjoyment of it And the Silencing of the Laws might import a Total Repeal of them which the King did not Claim a Right to do of himself So that this comes not to our Poynt in Question This Lord was not Impeached by Parliament nor by any appearing Concurrence of Judges nor for Advising the King to Dispense with any Penal Law for Publick-Good or where Necessity required But there is yet something more in this Case of the Earl of Bristol The whole Story is told at large by Mr. Rushworth in the Book before cited And it had this farther in it viz. That when the Impeachment was brought into the Lords House the Earl of Bristol put in his Answer to it and as to this particular Article he first denyed positively That he had Counsell'd any thing in the matter charged And then he declared fully what was done and set forth at large the matters of Fact before-mention'd as well as to what was Signed by King James and his Late Majesty King Charles the First as also the Declaration Signed by the Lord Conway by King James his Order So that in this Case there are these things worthy observation to the present purpose First That it is not probable but that the said Duke of Buckingham being the then Greatest Minister of State and Favourit to King James did Advise in all things which then passed in that Affair and particularly in the Declaration Signed by the Lord Conway But touching the Lord Conway's Signing a Declaration there can be no question Secondly That the said Earl wanted neither Wit Will nor Courage to Charge the said Duke as far and with Crimes as distastful as he could find any wherewith to Charge And that he was not fond of nor any ways obliged to spare the Person of the Lord Conway who was the Duke's Friend and must have been the Duke's most material Wittness to save him in Case the Charge against the Duke had been prosecuted Thirdly That the Parliament then sitting was as diligent in Enquiring into Misdemeanors as much displeased with the Duke of Buckingham as little tender of the Lord Conway as Secretary of State and much inclined to Enquire in relation to the too much Advancing and Stretching the King's Prerogative to the prejudice of the Subject and against the known Laws as peradventure any Parliament that ever Sett in England yet neither did Parliament nor this Earl of Bristol Charge any thing against this Duke or Exhibite any Impeachment against the said Lord Conway for Advising to Dispense with Penal Laws nor did this Parliament any way appear to prosecute the said Earl of Bristol upon this Impeachment Exhibited against him though he was thereby particularly Charged for thus Advising This seems a very probable Argument at least to prove that both the Earl of Bristol and this Parliament did Believe the King to have this Right which is here Asserted Object IX That King James when he Treated in Relation to the Match with Spain being demanded to Suspend the Execution of the Penal Laws then in force against the Papists was pleased to Answer That it was not in his Power so to do without a Parliament Answ This whole Objection is most certainly a mistake For it is evidently proved before what Opinion King James had and how well he was satisfied with and understood his Right in the point of Dispensations And how Wise and Knowing a Prince he was all Man-kind is satisfied Therefore if any thing were demanded of that King in that Treaty to which his Majesty gave any such Answer as is here Objected The demand did certainly Extend so far as to require a Total Silencing and Repealing of those Laws In which Case his Majesties Answer was most certainly True. But to suppose that King to have given this Answer where the Question or Demand was only touching a Suspension of Laws and then afterwards to have offer'd and promised a Suspension of the same Laws under his Great Seal would be with the highest Folly Self-contradiction and want of Sincerity imaginable Object X. That his now Majesty in a Speech heretofore made by him in this present Parliament did by implication agree that he had not by wishing that he had such Power as is now insisted on And when afterwards his Majesty by Advice took upon him to Exercise this Power he did again upon further Advice wave the same Answ I. This as well as the other Objections in the Case of King James if they were granted as far as the Objections can be put Nay if the Cases were That King James had and his now Majesty also past Acts of Parliament express in the point to bar themselves and the Crown of this Right the same must be only intended as to the ordinary Exercise of that Right But not of the Extraordinary Exercise thereof when the Publick Good requires the same should be Exercised which is proved by the Grounds before layd Secondly And that his Majesties proceedings are to be thus intended and not otherwise is proved by the continual Exercise of that Power in the Cases of Suspensions of Penal Laws suspended by the King 's sole Power and the Suspensions never Question'd never Complain'd of but still submitted unto and admitted as Legal namely those touching Navigation touching Importation of French-Wines and touching The Breadth of Cart-Wheels If the King had been really perswaded into a real Belief by the mistaken Advice of the Earl of Clarendon whose Opinion in Law was never esteemed of Venerable Authority at the time of his Speaking which is Objected It is clear by his Majesties Practice since that he hath found cause to alter that Belief And if his Majesty for Reasons best known to his Royal Self hath in one particular Case waved the

CONSIDERATION TOUCHING The Great Question OF THE KING' 's RIGHT IN DISPENSING WITH The Penal Laws WRITTEN On the Occasion of His Late Blessed Majesties granting Free Toleration and Indulgence BY RICHARD LANGHORN Late of the Middle Temple Esq LONDON Printed for Richard Langhorn Anno Dom. M.D.C. Lxxxvii TO THE KING SIR THE Piety of a Son to the Memory of so Good a Father may I hope in some measure excuse my Presumption in laying this Part of his Remains at Your Sacred Feet And what will farther plead for me is my seconding his Intentions in Offering that to Your Majesty which he as he often told me design'd more immediately for Your Royal Consideration I am Sensible this Subject may be thought to be here handled with too much Modesty But I am also Sensible that the Iniquity of those Times would not bear with bolder Truth and Reason Yet I may with Confidence aver if he be duely weigh'd he will be found to have Asserted the Prerogative with the Strength of the Law and the Duty of a Loyal Subject SIR When This was preparing a Malevolent Faction would have made the very Laws Rebellious and to spurn against their Maker Yet since Divine Providence has plac'd Your Majesty as Glorious at the Head of Your Laws as at the Head of your Armies I have only to Pray for the Continuance of Your Happy Life and Reign as being SIR Your Majesties Loyal Subject and most Dutiful Servant R. LANGHORN CONSIDERATIONS TOUCHING The Great Question OF THE KING' 's RIGHT In Dispensing with The Penal Laws THose who assert the Affirmative in this Question do premise these following Rules or grounds which they take to be so clear either from right Reason common Experience or the Traditional Common-Laws which are handed to us by such Resolutions of the Ancient Sages of our Laws as are found in our Law-Books That if they be refused by any the Title of Principles yet they are easily proveable to Lawyers to be of the like nature with Principles in that Science which most properly judge of this Question I. That there is a difference between Malum in Se which is in its own nature an Offence and Malum Prohibitum which being in its own nature Indifferent comes only to be an Offence because some Law makes it so 11. H. 7. fol. 11.13 H. 7. f. 8. II. That no Power upon Earth can give License for the doing or dispensing with the doing of what is Malum in Se Malum Prohibitum may be Licensed Cooke Lib. 12. fol. 30. Note Suspension Dispensation and License do in this Question signifie the same thing III. That the King cannot Repeal or totally make void a Law by his own Single Power without a Parliament IV. That Dispensation whether it relate to the Generality or to particular Persons only is no other thing than barely a Relaxation Toleration or Licensing of a Malum Prohibitum for a time with respect to Advantage or Necessity This is the definition given Cooke lib. 11. fol. 88. in the case of Monopolies V. That the End of every Law and of all Laws Civil and Temporal is Bonum Publicum and Salus Populi And therefore when any Law made is found at any time to contradict that End every such Law must at that time be voyd in its self or there must be a Power somewhere to suspend or dispense with such a Law for so long time as it appears to contradict that End for which such a Law was made for res nolunt male Agi And the Common-Good and Safety of the People must and will be preferred Note that this is so sure a Principle That even Magna Charta it self the greatest Darling of all our Laws hath always given way to it And therefore though our Kings have restrained themselves by that Law generally from putting any Impositions upon Merchandises to be Imported or Exported Yet our Judges have resolved That for the Common-Good the King may Controul and Suspend this Law as in Case of an Imposition put in foraign Parts upon our Merchandises to the prejudice of our Trade the King to enforce an abatement there and to make an Equality for the Advancement of our Trade may put Impositions upon their Merchandises here So also Though by Magna Charta it be generally free for every Person with any Comodity not expresly prohibited by some particular Law to go out of England in Order to Trade yet the King may in the time of War restrain all Merchants from going out of England or in the time of Dearth from Exporting such Comodities otherwise not prohibited of which there is a Dearth in England Coke lib. 12. fol. 33.34 VI. That Necessitas est Lex temporis Necessity is it self a Law whenever it happens and for the time that it continues it is Absolute and above all Laws This Law commands that Authority which hath the Right of Dispensing with Laws to exercise that Right And if That Authority will not do it This Law called Necessity will it self exercise that Right Coke lib. 12. fol. 34. Note when Necessity requires not only the King but every Subject may come upon my Land and make Trenches and Bulworks there for defence against an Enemy or pull down the whole Suburbs or any part of a City for the same end or pull down or blow up any House or Houses in a Town to secure the rest from Fire Notwithstanding all the Laws made for the preserving of Property Coke lib. 12. fol. 13. VII That it is impossible for any Law-makers who are mere Men and no more who have no Pretence to a perpetual Divine Assistance in the making of Laws to fore-see all particular Mischiefs and Inconveniencies which may happen in particular Circumstances by or from the making of any Particular Law. Coke lib. 11. fol. 88. VIII That for the Reasons before-mention'd of the Impossibility in Law-makers of fore-seeing all Accidents and Emergencies and for complying with Necessity and providing for Publick-Good in all Occasions and the taking Care of the Safety of the People there must be some Power always in being to Suspend or Dispense with such Law or Laws as Publick-Good the Safety of the People or emergent Necessity require at any particular Time or in any particular Circumstances to be Suspended or Dispensed with IX That the Power of Dispensing with Malum Prohibitum is of Right and by our Law in our Lord the King. Coke lib. 11. fol. 88. For when a Penal Statute is made for the Publick-Good the King as the Head of the Publick-Good and the Fountain of Justice and Mercy is by the whole Realm intrusted and particularly as to the Power of Dispensing with it Coke lib. 7. fol. 36. X. That this Trust and this Power of Dispensing with Penal Laws are inseparably united unto the Royal Person of the King That he cannot transfer give away or separate the same from himself consequently it is inherent in his Royal Person that is in his