and shew the great Occasion and Necessity for the Making of it the Scope and Design of it the excellent Remedy it does prescribe and the great Benefit and Security that might arise to the Nation from it were it duly observ'd Secondly I shall then discourse briefly of the Nature of Law in general as far only as may be useful and pertinent to our present Case and of the great Force and Authority that a Law ought to have and of the great Veneration that should be paid to it especially if the True Religion and the Honour of Almighty God the Safety of the Government and the Publick Good and Peace of the Nation depend upon it as they all do upon this Act of 25 Car. 2. Thirdly In the next place I shall give an Account of the True Nature as near as I can and of the Original and Growth of the Notion or Invention call'd a Dispensation and who were the first Authors of it and about what time it began I shall endeavour to shew the right use of it if there be any and where the just Power of granting Dispensations does reside as also the abuse of it and how that according to the late Practice these Dispensations are contrary and repugnant to the Nature and Properties of Law tho' they pretend themselves to be Law they have a different Original and Foundation and do indeed subvert Law. First For the Occasion and Necessity for Making of this Act of Parliament and the Scope and Design of it and the Ends aimed at they all appear in the Preamble The Preamble distinguishes the King's Subjects into two sorts 1. Some from whom there are great Dangers 2. Those who are the Persons subject to those Dangers The Dangers are from Popish Recusants those who are threatned by those Dangers the Act terms them his Majesty's good Subjects It would be needless to tell what those Dangers are and whence they arise All the times since the Reformation have abundantly discover'd what the Dangers are There have been a multitude of Acts of Parliament made that have still been fencing against those Dangers which do sufficiently point them out so do the frequent and incessant Addresses from every Parliament for many Years setting forth the Dangers and all our Histories and Publick Writings and especially those written and published by his now Majesty's Royal Grandfather King James the First and a multitude more but above all the sad event of things and what we all see is come to pass these disclose to all the World what the Dangers were and the great need of a further Remedy Their destructive Principles and their desperate Designs and Practices do abundantly testifie the Danger from the one sort and the just fears of the other sort of Subjects The Scope therefore and the great End that our Act of Parliament had is to prevent the Dangers from the one and to quiet the Minds of the other many former Acts of Parliament which had the same end and purpose proving ineffectual The Remedy provided is very suitable and the likeliest and most effectual that either the Wisdom or Supreme Authority of the King and Parliament could devise and the very Remedy points out the danger The Danger would be at the heighth of it if the dangerous Principles and Practices should but arrive at the Power and Authority and gain that into their hands and it was growing apace towards it The wise and proper Remedy therefore provided by the King and Parliament is first to discover who are Popish Recusants to offer a Trial and Test to all that should be in any publick Trust and Authority for it was suspected that there were many Papists under the disguise of Protestants And in the next place so to Fence and Guard the Power and Authority and all Publick Trusts in the Nation that they might by no means come into the hands of the Papists Persons entrusted with the Power and Authority over the Nation had need give a signal Testimony of their Loyalty and Fidelity to the King and Government and of their true Zeal for the Religion establish'd by Law. The Test as to their Loyalty are the two Oaths of Supremacy and Allegiance and neither of these are new Tests The Test as to Religion and the true Worship of God are likewise two the Receiving of the Blessed Sacrament and the Subscribing a Declaration against the Doctrine of Transubstantiation The Temper and Moderation shewn by his late Majesty and both Houses in this Act of Parliament deserves to be observ'd It is not like the Leges Draconis written in Blood this is no Sanguinary Law. It does not proceed against them with Fire and Faggot It does not disturb them in their Estates and Possessions it does not deprive them of the Liberty of their Persons Nay it does not hinder them from the Exercise of their own Religion if it may be so called I speak as to our present Act of 25 Car. 2. only It lets them live quietly in their Habitations without so much as putting any Oath or Test upon them so long as they live private men It only requires that if they will be entrusted with Power and Authority they should give some just and reasonable Security and Assurance that they will be true to the Religion and the Government establish'd If they will be medling with the Power without giving such security then at their Peril be it The Law pronounces them uncapable and disabled and inflicts Penalties upon such as shall presume to violate this Law. And it is worth the noting how sollicitous and intent the Makers of this Law were that this Test and Tryal might be taken and performed with great solemnity and that the Law might not be eluded with any Arts and Tricks that no Cheat might be put upon it All this shews that the Law-makers had great expectation from this Law. The Oaths are to be taken in one of the two highest Courts of Westminster-Hall the very Hours of the Day are limited when they must be taken that is when the Courts are usually fullest during the taking of them all Pleas and Proceedings are to cease There is the like care taken concerning the receiving of the Sacrament and of the certifying of it and plentiful proof to be made of it and then the recording of it And the like for subscribing the Declaration against the Doctrine of Transubstantiation It were great pity that after all these pains they should signifie just nothing and that so high an Authority should be made ridiculous But after all this securing against the Danger from Popish Recusants how shall we do to secure against the Danger of Dispensations Suppose this Act had contain'd a Clause in it declaring that all Dispensations and Grants with Non obstante's to the contrary of this Law should have been ipso facto void and had inflicted Penalties upon such persons as should have procur'd them would this have
Distinction and weigh the Reasons so given we shall find it is without any just ground The damage done to the particular person in the Cases past in the first part of this distinction are meerly his own proper and peculiar damage and he is intituled to his particular Action for it in his own proper personal Right and therefore if he discharge and dispense with them it is no wrong to any other man. He may do what he will with his own But the Cases in the second part of this Distinction are where the King hath a right to the Suit and the offence and damage are said to be to him only But are they so as the former in his own personal right as his Lands and other Revenues are or are they to him but as a Trustee for the Publick for which reason he is called Creditor Poenae and may he therefore upon the like reason dispense with them or dispose of them as a Subject may do with his own particular Interests Again Shall a publick Damage and Injury to the whole Nation be more dispensable by the King than the loss of one private man fuit haec sapientia quondam Publica privatis secernere And therefore in my apprehension the King cannot in such Cases of Dispensations be truly said to wrong none but himself and it is not agreeable to the Definition before given Utilitate Compensata for the King wrongs the whole Realm by it Where if he grants a Dispensation with a Penal Law of the first sort of this distinction he only wrongs some particular persons The Cases and Authorities for Dispensations in our Books that were granted in ancient times will generally be found to be only where the Penal Statutes were made for the King 's own proper interest and benefit As his dispensing with the Statute of Mortmain For in such Cases it was to the King 's own loss only in Cases where the King might by Law have given away his Lands or Services So the King may in his Patent of Grant of Lands dispense with the Statutes that require there shall be mention of the true Values of them And by a Non-obstante to those Statutes which is now generally used the King does in effect declare that it is his pleasure to grant those Lands whatever the Value of them be more or less and the Statute does by express words save a liberty to the King in that Case The King is not a Trustee for others in such Cases nor can these Dispensations be said to be directly to the damage of the Publick And such Penal Laws as meerly concern the King 's own Revenue or Profit may justly be thought to be intended to be made only to put the King's matters into an ordinary method and course and so save the King a labour as the Lord Hobart says and so prevent the King 's being surpriz'd or mis-inform'd when Patents are gained from him and not design'd to tye the King's hands or to restrain his power as out of all doubt was done and intended by the Law-makers in our Act of 25 Car. 2. But in all the late Cases and Authorities which we meet with in our Books concerning Non-obstante's and Dispensations as in the time of King Henry the Seventh and so downward to this day we shall find them practising upon such Penal Statutes as meerly concern the Publick Good and Benefit and the Laws of such a nature by the breach of which the whole Nation suffers While some particular persons it may be by giving a large Fine or a yearly Sum obtain the favour to be dispens'd with and exempt from a Penal Law while all others continue to be bound by it As for Example Where a Statute forbids the Exportation of Wool or of Cloth undyed or undress'd under a Penalty such a Law is greatly for the Publick Good and it takes care that our own People shall have Employment and Maintenance Yet this is such a Law as according to the receiv'd Distinction the King may dispense with there being no particular damage to one man more than to another by breach of such a Law although it be a mighty damage to the whole Nation For by such a Dispensation the person so dispens'd with to Export such White Cloth undyed will have the sole Trade which before the making of that Penal Statute was equal and common to all I wish the House of Commons would enquire what vast Riches have been heretofore gotten by such as have obtain'd the Dispensations with this Penal Statute besides the Sums they paid to the Crown for them These are meer Monopolies In such a Case it may rightly be applied That Sin taketh occasion by the Law. It had been better for the Nation that such Laws were never made being no better observ'd for here again the Dispensation is neither Utilitate nor Necessitate pensata Look into the Case of Thomas and Sorrell and you will find few or no Cases of Dispensations cited out of our Books but of the time of King Henry the Seventh and much more of very late times so that the ill practice is still improving and stretching The Lord Chief Justice Herbert in the next place pag. 9. proceeds to mention the great Case of 2 Hen. 7. a Resolution of all the Judges in the Exchequer-Chamber upon the King 's dispensing with the Statute of 23 H. 6. cap. 8. That no man should be a Sheriff above one year This is the great Leading Case and Authority upon which the main stress is laid to justifie the Judgment given in Sir Edward Hales his Case I would avoid repeating what I have already so largely said to this Authority to which I must refer my Reader by which I hope it is most evidently made out that the King neither hath nor never had any just Right or Power to elect Sheriffs But the right of Electing was anciently and originally belonging to the Freeholders of the several Counties and since it was unjustly taken from them as they have ever been on the losing hand it hath been lodged in the great Officers of the Realm as the Lord Chancellor Lord Treasurer Lord Privy-Seal and the Judges c. as appears by the several Statutes And they are to make such Choice every year in the Exchequer on a day appointed by the Statute for that purpose So that the Sheriffs are by those Statutes to continue in their Offices for one year only And the King cannot hinder such Election Only by his Patent or Commission to the Sheriff hath he used to signifie to the Sheriff himself that is so chosen and to publish to all others who the person is that is so chosen This is all the use of the Patent but it is the proper Election of those great Officers that truly vests them in their Office And it does as clearly appear that when former Kings have dispens'd with a Sheriffs continuing in his Office for longer than one year contrary to the
AN ENQUIRY INTO THE Power of Dispensing WITH PENAL STATUTES Together with Some Animadversions UPON A Book writ by Sir EDW. HERBERT Lord Chief Justice of the Court of Common Pleas ENTITULED A short Account of the Authorities in Law upon which JUDGMENT was given in Sir Edward Hales 's Case By Sir ROBERT ATKYNS Knight of the Honourable Order of the Bath and late one of the Judges of the Common Pleas. Digna vox est Majestate Regnantis Legibus Alligatum se esse Principem profiteri LONDON Printed for Timothy Goodwin at the Maiden-head against St. Dunstan's-Church in Fleet-street 1689. ADVERTISEMENT January the 21st 1689. TO Morrow will be Published by Tim. Goodwin at the Maiden-head against St. Dunstan 's Church in Fleet-street The Power Jurisdiction and Priviledge of PARLIAMENT And the Antiquity of the House of Commons asserted Occasioned by an Information in the King's-Bench by the Attorney General against the Speaker of the House of Commons As also a Discourse concerning the Ecclesiastical Jurisdiction in the Realm of England occasioned by the late Commission in Ecclesiastical Causes By Sir Robert Atkyns Knight of the Honourable Order of the Bath and late one of the Judges of the Court of Common-Pleas AN ENQUIRY INTO THE Power of Dispensing WITH Penal Statutes 25 CAR. II. Cap. 2. An Act for preventing Dangers which may happen from Popish Recusants FOR preventing Dangers which may happen from Popish Recusants and quieting the Minds of his Majesties good Subjects Be it enacted c. That every person that shall bear any Office Civil or Military c. or shall have Command or Place of Trust from or under his Majesty c. within the Realm of England c. shall personally appear in the Court of Chancery or of the Kings-Bench or at the Court of Quarter-Sessions in that County where he shall reside within three Months next after his Admittance into any of the said Offices and there in open Court take the several Oaths of Supremacy and Allegiance and shall also receive the Sacrament of the Lord's Supper according to the Usage of the Church of England in some Parish-Church upon some Lord's-day immediately after Divine Service And every the person aforesaid that doth or shall neglect or refuse to take the said Oaths and the Sacrament in the said Courts and at the respective times aforesaid shall be ipso facto adjudged uncapable and disabled in Law to all intents and purposes whatsoever to have occupy or enjoy the said Office or Employment and every such Office and Place shall be void and is hereby adjudged void And every person that shall neglect or refuse to take the said Oaths or the Sacrament as aforesaid and yet after such neglect or refusal shall execute any of the said Offices after the said times expired wherein he ought to have taken the same and being thereupon lawfully convicted upon any Information c. in any of the King's Courts at Westminster or at the Assizes every such person shall forfeit 500 l. to be recovered by him that shall sue for the same And at the same time when the persons concerned in this Act shall take the said Oaths they shall likewise subscribe the Declaration against the Belief of Transubstantiation under the same Penalties as by this Act is appointed Paschae 2 JAC. II. In the King's-Bench Arthur Godden Plaintiff in an Action of Debt of 500 l. grounded upon the Act of 25 Car. 2. for preventing Dangers from Popish Recusants Sir Edward Hales Bar t Defendant THE Plaintiff declares That the Defendant after the First day of Easter Term 1673. sc. 28 Nov. 1 Jac. 2. at Hackington in Kent was admitted to the Office of a Colonel of a Foot-Regiment That being a Military Office and a Place of Trust under the King and by Authority from the King. And the Defendant held that Office by the space of three Months next after the 28 Nov. 1 Jac. 2. And from thence till the time of this Action begun he was and still is an Inhabitant and Resident of the Parish of Hackington And the Plaintiff taking it by Protestation that the Defendant within three Months next after his Admission into the said Office of Colonel did not receive the Sacrament in Manner as the Act directs but neglected to receive it Avers that the Defendant did neglect to take the Oaths of Supremacy and Allegiance either in the Chancery or in the Kings Bench or at any Quarter-Sessions in Kent or in the Place where he was resident either the next Term after his admission to his said Office or within three Months after And that the Defendant after such neglect sc. 10 Mar. 2 Jac. 2. at Hackington in Kent did exercise the said Office and still doth contrary to the Statute of 25 Car. 2. for preventing Dangers from Popish Recusants Whereupon the Defendant at Rochester at the Assizes held 29 Mar. 2 Jac. 2. was duly Indicted for such his neglect and for executing the said Office contrary to the said Statute And thereupon duly Convict as by the Record thereof appears whereupon the Plaintiff became entituled to this 500 l. as forfeited by the Defendant The Defendant pleads that the King within the three Months in the Declaration mentioned and before the next Term or Quarter-Sessions after his admittance to the said Office and before his Suit began sc. 9 Jan. 1 Jac. 2. by his Letters Patents under the Great Seal and here produced in Court did dispence with pardon remit and discharge among others the Defendant from taking the said Oaths and from receiving the Sacrament and from subscribing the Declaration against Transubstantiation or Tests in the Act of 25 Car. 2. for preventing Dangers from Popish Recufants or in any other Act and from all Crimes Convictions Penalties Forfeitures Damages Disabilities by him incurred by his exercising the Office of Colonel Or by the Act intituled An Act for the Preserving of the King's Person and Government by disabling Papists from sitting in either House of Parliament Or by the Acts made in the first or third Years of King James the First or the Acts made 5 Eliz. or 23 or 29 or 35 Eliz. And the King by his Letters Patents granted that the Defendant should be enabled to hold that Office in any Place in England or Wales or Berwick or in the Fleet or in Jersey or Guernsey and to receive his Pay or Wages Any Clause in the said Acts or in any other Act notwithstanding non obstante that the Defendant was or should be a Recusant convict As by the said Letters Patents doth appear Whereupon the Defendant prays the Judgment of the Court whether the Plaintiff ought to maintain this Action The Plaintiff demurr'd generally to this Plea. The Defendant joyned in Demurrer Judgment is given for the Defendant THE Order I shall observe in speaking to this Case as to the Point upon the Dispensation shall be this First I shall open this Act of 25 Car. 2.
which is that such service is perfect freedom Hence our English Laws in Magna Charta are called Liberties Concessimus omnibus hominibus regni nostri has libertates subscriptas says King Henry the Third in the first Chapter of Magna Charta which Sir Edward Cook expounds to be meant of the Laws of England quia liberos faciunt says he And tho' this Statute of Magna Charta run in the stile of a Grant from the King in the word concessimus for the honour of the King yet as he says they were the Common Laws and Rights of the People before and it was made by the King Lords and Commons as is recited by the Statute of 15 Ed. 3. c. 1. Thus it appears what the true Nature and Properties of a Just Law are of how great Force and Authority a Law ought to be how dear and precious Laws have been heretofore to Prince and People and whence they have their Birth and Original Thirdly I come now to that Notion or Invention of a Dispensation the Power of relaxing or dispensing with a Law and enquire into the Original and Nature of it and the great Mischief that hath arisen from it The Pretence for the Use or Need of a Power of Dispensing is this viz. There is no Providence or Wisdom of Man nor of any Council of Men that can foresee and provide for all Events and variety of Cases that will or may arise upon the making of a new Law. But a new Law may sit heavy upon some particular persons or in some extraordinary Case that may happen let what care can be taken in the penning of it It is enough to commend a Law if it be beneficial to the greater number and be for the publick good Laws are fitted Ad ea quae frequentius Accidunt and not for rare and extraordinary Events and Accidents as the Romans had no Law against Parricide And the Law says better is a Mischief than an Inconvenience By a Mischief is meant when one Man or some few Men suffer by the hardship of a Law which Law is yet useful for the Publick But an Inconvenience is to have a Publick Law disobey'd or broken or an Offence to go unpunished Now from this suppos'd and imaginary defect of Law or some particular mischief or hardship sometimes tho' very rarely happening to some Men which hardship was not foreseen by the Makers of the Law altho' this is oftner pretended and feigned then hapning in truth occasion hath been taken to assert a Power in the Prince or chief Ruler to dispence with the Law in extraordinary Cases and to give ease or relaxation to the person that was too hard bound or tied to a Law for as I observ'd before the Law is of a binding and restraining nature and quality It hath the same specious pretence as a Law made 31 H. 8. c. 8. had which was of most desperate and dangerous consequence had it not speedily been repealed by the Statute of 1 E. 6. c. 12. The Title of that mischievous Act of 31 H. 8. is this An Act that Proclamations made by the King's Highness with the Advice of the Honourable Council meant of the Privy Council shall be obey'd and kept as tho' they were made by Act of Parliament The Preamble recites the King by Advice of his Council had thentofore set forth sundry Proclamations concerning Articles of Religion and for an Unity and Concord to be had among his Subjects which nevertheless many froward wilful and obstinate persons have wilfully contemned and broken not considering what a King by his Royal Power may do and for lack of a direct Statute and Law to coherce Offenders to obey those Proclamations which being still suffered should encourage Offenders to the disobedience of the Laws of God and sound too much to the great dishonour of the King 's most Royal Majesty who may full ill bear it Considering also that sudden Occasions fortune many times which do require speedy Remedies and that by abiding for a Parliament in the mean time might happen great prejudice to ensue to the Realm and weighing that his Majesty which by the Regal Power given him by God may do many things in such Cases should not be driven to extend the Supremacy of his Regal Power by wilfulness of froward Subjects It is therefore thought necessary that the King's Highness of this Realm for the time being with the Advice of his Council should make Proclamations for the good Order and Governance of this Realm of England Wales and other his Dominions from time to time for the Defence of his Regal Dignity as the Cases of Necessity shall require Therefore it is enacted that always the King for the time being with the Advice of his Council whose Names thereafter follow and all the great Officers of State are mentioned by the Titles of their Offices only for the time being or the greater number of them may set forth at all times by Authority of this Act his Proclamations under such Penalties and of such sort as to his Highness and his Council or the more part of them shall seem requisite And that the same shall be obey'd as tho' they were made by Act of Parliament unless the King's Highness dispence with them under his Great Seal Here at one blow is the whole Legislative Power put into the King's hands and there was like to be no further use of Parliaments had this continued Then there follows a Clause that would seem to qualifie and moderate this excess of Power but it is altogether repugnant and contradictory in it self And the Conviction for any Offence against any such Proclamation is directed not to be by a Jury but by Confession or lawful Witness and Proofs And if any Offender against any such Proclamation after the Offence committed to avoid the Penalty wilfully depart the Realm he is adjudged a Traytor And the Justices of Peace are to put these Proclamations into execution in every County And by another Act of 34 and 35 H. 8. c. 23. Nine of the Great Offices are made a Quorum c. for they could not get half the number to act under it The Act of 1 E. 6. c. 12. which repeals the terrible Law begins with a mild and merciful Preamble and mentions that Act of King H. 8. which as this Act of E. 6. does prudently observe might seem to Men of Foreign Realms and to many of the King's Subjects very strict sore extream and terrible this Act of King E. 6. does therefore by express mention of that Terrible Act wholly repeal it And so that Law to use the Lord Bacon's phrase was honourably laid in its Grave And God grant it may never rise again It is very probable that this Terrible Law was drawn by King Henry the Eighth's own hand by that expression in it that the King may full ill bear the Disobeying of his Proclamations and the dishonour done to him by it and by several
chap. 7. He shall think that he may change Times and Laws and they shall be given into his hands Bishop Jewel's Exposition upon the Epistle to the Thessalonians fol. 131. Antichrist says the Bishop is there called O. Anomos a Man without Order or Law that Man of Sin which is one of the peculiar Notes of Antichrist He shall seek to be free and go at liberty he shall be tied to no Law neither of God nor Man. Hence it is said of the Pope that he is solutus omni Lege humana In iis que vult est ei pro ratione voluntas nec est qui dicat illi Domine cur ita facis Ille potest supra jus dispensare de Injustitia facere justiciam Corrigendo jura mutando Pope Martin the Fifth dispens'd with a Man that married his own Sister In this last Instance the Pope did directly write after the Copy of an Heathen King. The story of Cambyses is the same Case in the very point with this last of Pope Martin Sir Walter Raleigh mentions it in his History of the World. Cambyses inquir'd of his Judges whether there were any Law among the Persians that did permit the Brother to marry his own Sister It was the intent of Cambyses to marry his own Sister too The Judges who as Sir Walter Raleigh observes had either Laws or Distinctions in store to satisfie Kings and Times they make a subtil answer that there was not any thing written allowing any such marriage But they notwithstanding found it in their Customs that it was always left to the Will of the Persian Kings to do what best pleas'd themselves This was a Non obstante with a witness This surely and the Popes practice together gave the occasion to Mr. Chillingworth's observation He that would usurp says he an absolute Lordship over any People need not put himself to the trouble of abrogating or disannulling the Laws made to maintain the Common Liberty for he may frustrate their intent and compass his design as well if he can get the power and authority to interpret them as he pleases and to have his Interpretations stand for Laws If he can Rule his People by his Laws and his Laws by his Lawyers therefore says he there is a necessity of a frequent resort to be had to the Law-makers not only to resolve Difficulties of Judgments but to keep the Power of Interpretation within its due bounds which is excellent advice I shall give but one Instance more and that is of the most impious sort of Dispensations that could possibly be devised I find it in the History of the Church of Scotland written by Archbishop Spotswood He tells us that in Anno 1580. Dispensations were sent from Rome into Scotland whereby the Catholicks were permitted to promise swear subscribe and do what else should be requir'd of them so as in mind they continued firm and did use their diligence in secret to advance the Roman Faith. Thus we see the monstrous Abuses brought in by Dispensations I have been something long upon this Subject but it was necessary to shew how that it is in the very nature of it to be stretching and growing and at last to be altogether unlimitted and will totally subvert the Law. Having thus laid my Foundation I shall now proceed from thence to raise my Arguments against Dispensations in general to prove that they are not Law but indeed contrary to Law and destructive of it I hold there is no just nor lawful Power of Dispensing with any Act of Parliament in any other hands than in those that are the Law-makers that is in the King and Parliament in conjunction I confine my self to Dispensations with Acts of Parliament 1. My first Argument shall be from the Nature of a Law whereof an Act of Parliament is the highest and of greatest Authority A Law hath its Name as I said before from its Nature Lex à Ligando it binds and compels to Obedience and it binds together and cements it knits and unites a multitude of People and makes them all as it were but one body Now a Dispensation is of a quite contrary nature and is destructive of Law As the Law does Ligare a Dispensation does Relaxare It is defin'd to be Relaxacio Juris it does unbind and set loose the Obligation of the Law and by consequence tends to the dissolving of the Body Politick Whatsoever is destructive of the Law cannot it self be Law for then the Law would be felo de se Lex quae Leges evertit ipsa Lex esse non potest a thing divided against it self and therefore will not stand Ubi non est pudor nec cura juris instabile Regnum est says Seneca Law is made by an universal consent and agreement of Prince and People I have already shewn how that the Common Law which is as ancient as the Nation it self is that Covenant which was agreed upon by Prince and People at the first framing and institution of the Government The Statute-Law hath its Force and Authority from the like consent and nothing is Law without that consent as appears by the Preamble of 25 H. 8. c. 21. concerning the very Point of Dispensations Sir John Fortescue says Rex leges sine subditorum assensu mutare non potest potestas regia lege cohibetur in his Book de Laudibus legum c. Now for the Prince alone without the like consent to depart from that Agreement and at his will and pleasure to break any Article of it is in effect to put the sole Power of the Law into the hands of one person which receiv'd its force and vigour from the consent of all which is irrational Bracton who as Sir Edward Coke says in his Preface to the Ninth Report was a famous Judge of the Common Pleas in the time of King Henry the Third is of this Judgment Leges says he cum fuerint approbatae consensu utentium Sacramento Regum confirmatae mutari non possunt nec destrui sine Communi consensu Concilio eor ' quor ' concilio consensu fuerint promulgatae 2. The Laws of England both Common and Statute Law have as I have already shewn a different Original from that of the Power of Dispensation as it is exercis'd now among us they have not the same Father The King who is Pater Patriae with the consent of the People is the Father of our Laws he is Juris Pater but he that is called the holy Father and from thence hath his name of Pope is the Father and first Inventer of Dispensations so that there is no kindred nor affinity between the Law and Dispensation 3. The Laws amongst us and this faculty of Dispensations as they have a different Original so they have no resemblance one of another facies non omnibus una est they have contrary qualities and dispositions The Law is equal and impartial and hath
no respect of persons and as before I observ'd from Aristotle is a Mind without Affection Now the nature of a Dispensation is to favour some to set some at liberty from the obligation of the Law and is a kind of praeterition of others leaving them still under the tye and obligation and obnoxious to the Penalty if they transgress Whereas in a well govern'd Kingdom there ought to be Unum pondus and Una Mensura in distributive as well as commutative Justice It was part of the Oath that was taken by King William the First who is commonly stiled the Conquerour that he would Aequo jure Anglos Francos tractare Which Oath favours nothing of a Conquest nor does it run in the stile of a Conquerour And it is the Oath of a Judge at this day That he shall truly serve the King and his People c. That he shall do Right to every Person notwithstanding the King's Letters that is notwithstanding any Non Obstante It is a Maxim in Law Quo modo aliquid Ligatur eo modo dissolvitur Now a Law being made by Consent of all should not be Dissolv'd again but by the like Consent that is by Authority of the King and Parliament who have the Legislature Dr. Willet in his Synopsis Papismi makes a Difference between a Toleration and a Dispensation That of Moses in case of Divorces was a Tolleration A Dispensation says he must be of as high a Nature as the Institution None but the Law-Maker can Dispence with the Law not he that hath but a share in the Legislature And from hence I shall take occasion to assert and shall endeavour to make good my Assertion by Law that the Lawful Power of Dispensing with an Act of Parliament that concerns the Publick is only in the hands of those that have the Legislative Power I confine my self to such Acts only as concern the Publick as the present Act we have now to do with does in a very high degree And therefore I hold that none can Dispence with such a Law but the King and Parliament and such as they entrust with it I shall begin to prove this by an Act of Parliament which is the highest Resolve and Authority in our Law It is in the Preamble of the Act of 25 Hen. 8. c. 21. the Statute of Dispensations and the Preamble of a Statute is Law as well as the enacting part or body of the Law. It is in effect a Declaration of what was Law before at least it shews the Opinion and Judgment of the Law-Makers which is of high Authority It first utterly disowns and renounces the Pope's long usurped Claim and Pretence of Dispensing with any Person within this Realm even in Matters Spiritual tho' by him practis'd for many Years I desire to observe upon this that long usage by an Usurpation gives no lawful Right But I would further observe too that where it hath been long admitted and used it is in such Case reasonable for none but the Supream Court to undertake it and declare against it In the next place this Act of Parliament does affirm That this Realm of England is subject to no Laws but such as have been made and taken by sufferance of the King and his Progenitors and the People of this Realm at their free Liberty by their own Consent to be used amongst them and have bound themselves by long Use and Custom to the observance of them as to the customed and ancient Laws of this Realm Originally establish'd as Laws of the same by the said Sufferance Consents and Customs And none otherwise This shews the Original of our Common Law. This likewise clearly proves that whatever is imposed upon the People without their Consent hath not the Authority of a Law And it cannot be shewn that ever the People did consent to this Power or Practice of Granting Dispensations But it plainly appears that our Acts of Parliament are so far from approving or countenancing of it that they have often fenced against it altho' in vain hitherto And tho' the Usage have been very Ancient as I have shewn yet that gives it no lawful Authority for this Preamble declares those only are Laws binding to the People that have been Originally establish'd as Laws The Word Originally refers no doubt to our very Primitive Institution which is Common Law or at least to a time so ancient as that the Original cannot be traced out nor shewn and then it shall be presum'd to be the Common Law. Now I have I hope clearly evinced that the very first invention and practice of Dispensations by the Bishop of Rome is not time out of mind nor can the Usage of it here by imitation of the Pope reach up to a Prescription in the judgment of our Law nor by the Rules of it For Sir Edward Cook in his first Instit. Fol. 115. treating of a Prescription and the nature of it says That if there be any sufficient proof of Record or Writing to the contrary albeit it exceed the Memory of any Man living yet it is within the Memory of Man in a legal sence it had its Original since the beginning of the Reign of our King Richard the First that is in the time of King John and King Henry the Third But that which makes it much the stronger is that this Declaration of the King and Parliament against such Dispensations and Laws introduc'd without the King and Peoples Consent does conclude with Negative Words viz. and not otherwise and is exclusive of all other that is that nothing is Law without their Consent And this Statute of Dispensations proceeds further to shew where the true and lawful Power of Granting Dispensations is vested in these words viz. It stands with natural Equity and good Reason that in all Laws humane within this Realm the King and both Houses representing the whole State of the Realm have full Power to Dispense and to Authorize some Person to Dispense with those and all other humane Laws of this Realm and the same Laws to abrogate annull amplifie and diminish as it shall be seen unto the King the Nobles and the Commons of the Realm present in Parliament meet and convenient for the Wealth of the Realm and then it does dispose of the Power of Dispensation in Matters Ecclesiastical to the Archbishop of Canterbury some whereof are to be confirm'd by the King and others that may be good without the King 's confirming And altho' the body or enacting part of this Statute extend only to Causes Ecclesiastical yet the Preamble does reach expresly to all humane Laws This Statute of 25th of Henry the Eighth was made in the time of such a King as we all know by reading our Histories stood highly upon his Prerogative and would never have consented to such a Declaration concerning the Power of Dispensing if it had been a special Prerogative in the Crown and had there
evident that the King had no such Power or Prerogative of continuing Sheriffs in their Offices longer than a Year For under favour the Making of Sheriffs doth not nor never did belong to the King neither at the Common Law nor by any Act of Parliament so that all these Opinions and Resolutions are built upon a sandy Foundation and have but debile fundamentum and they take that for granted which is not a truth The Election of Sheriffs at the Common Law even from the very first Constitution of the Kingdom and by the Original Institution of the Government was in the Freeholders in the several Counties ever since there was any such Office as a Sheriff and ever since the Kingdom hath been divided into Shires that is in the time of the Saxons from whom we derive most of our Common Law and long after their time in the time of the Normans till being neglected by the Freeholders it came at length by an Act of Parliament made within the legal time of Memory to be taken from the Freeholders and the Power of Naming and Chusing Sheriffs every Year lodged in the hands of certain great Officers of State and so it continues to this day but neither is nor never was in the King. Mr. Lambard in his Book de Priscis Anglorum Legibus in his Lemma de Heretochiis fol. 147. says that those Heretochii were Ductores exercitus Here signifying an Army in the Saxon Tongue The same as in the Dialect of this present Age may be called Lord-Lieutenants or Deputy-Lieutenants The Law of King Edward which I take to be the Confessor speaks of these Heretochii in these words Isti vero viri Eligebantur per Commune Concilium pro Communi utilitate regni per provincias Patrias Universas per singulos Comitatus in pleno Folkmote sicut Vice-Comites Provinciarum Comitatuum Eligi debent This Law mentions this Election as an Use and Custom If the King did not make the Sheriff he could not continue him Sheriff if he could not make him for a Year he could not grant him the Office for longer than a Year the Sheriff had his Authority and Office from the Election not by Commission or Patent and that but for a Year Sir Edward Coke in his Second Institutes in his Exposition of the Statute of Westminster 1. Cap. 10. concerning the Election of the Coroners by the Freeholders which ever was so and so still continues says there is the same reason for Election of Sheriffs and so says he it anciently was by Writ directed to the Coroners In like manner were the Conservators of the Peace chosen in whose place the Justices of the Peace now succeed and so the Verderors of the Forrest are to this day These were great and high Liberties and did belong to the Freeholders from all antiquity and are strong Arguments to confute those late Authors that will by no means allow of a limitted Government but leave us under an Absolute and Arbitrary Power and who call our Laws and Liberties but the Concessions and Condescensions from the Regal and Absolute Power Sir Edward Coke discourses largely of these Elections in his Exposition of the Statute of Articuli super Chartas in his Second Institutes or Magna Charta fol. 558. By this Statute it is said the King hath granted to his People that they have the Election of their Sheriff in every County where the Sheriff is not of Fee if they will. Sir Edward Coke says by this Act that ancient Right the People that is the Freeholders had was restor'd to them and the words if they will import that they formerly had it but neglected it By a Statute made in the next King's Reign viz. 9 E. 2. styled The Statute of Sheriffs upon pretence that insufficient persons were commonly chosen for Sheriffs by that Act it is ordained that from thenceforth the Sheriffs shall be assigned by the Chancellor Treasurer Barons of the Exchequar and by the Justices And by the Statute of 14 E. 3. c. 7. some change is made of the persons that are to have the Election and the Day and Place of such Assigning of Sheriffs is prefix'd viz. yearly in the morrow of All-Souls and in the Exchequer By the Statute of 12 R. 2. c. 2. the Assigning of the Sheriff is put into the hands of more great Officers who are to be sworn to execute this Trust faithfully but it is not vested in the King all this while nor never was It is true that out of Reverence to the King these great Officers who had the Assigning of Sheriffs did afterwards use to name three persons out of which number they left it to the King to chuse one for every Shire But this was more out of deference to the King than out of any strict Obligation so to do and the Election made by the King was in Law to be accounted an Assignment by these great Officers Nor could the King chuse any other for Sheriff than one of those three so Assigned by those great Officers tho' it is sometimes otherwise practis'd And this hath been a Resolution of all the Judges of England and is mentioned in Sir Coke's Second Institutes fol. 559. it was in the 34th Year of Henry the Sixth and it is in these words viz. That the King did an Error when he made another person Sheriff of Lincolnshire then was chosen and presented to him by those great Officers after the effect of the Statute So that the right of Electing Sheriffs by those great Officers we see continued so lately as the latter end of King Henry the Sixth and I know of no Law since that hath alter'd it therefore we may conclude it is no Prerogative in the King. And we may further observe what plain Language all the Judges used in those days as to tell the King and the Lords of the Council that the King had erred in what he had done I observe this the rather that it may be some excuse to me for the plain Language I am forced to use in the Arguing upon this Subject The Lawyers are not always Courtiers nor will the Subject-matter bear Complements and Courtship Ornari res ipsa negat contenta doceri I cannot reconcile this Resolution of the twelve Judges given in the time of King Henry ths Sixth with that Opinion that is deliver'd in the Lord Dyer's Reports fol. 225. b. and it is but an Opinion 5 6 of Queen Elizabeth In the time of the Plague the Sheriffs were named and made without assembling the Judges ad Crastinum Animarum at the Exchequer according to the common usage but for the most part none was made but one of the two that remain'd in the Bill the last Year Tho' it was held says the Report that the Queen by her Prerogative might make a Sheriff without such Election by a Non Obstante aliquo Statuto in contrarium which crosses the Resolution I
now mentioned It is but an Opinion against a Solemn Resolution of all the twelve Judges I find that some who had transgress'd that Act of 23 H. 6. and had continued above one Year in that Office of Sheriff soon after the making of that Act did not think themselves secure against the Penalty of that Act by any Non obstante from the King but procur'd an Act of Parliament to indempnifie them for what they had done for by another Act made the 28th of the same King Henry the Sixth it is ordain'd that the Sheriffs for the Year then last past should be quit and discharged against the King and his People of the Penalties of the 200 l. which they incurr'd by the Statute of 23 H. 6. by Exercising the Office of Sheriff longer than a Year from the day next after the day of all All-Souls on which day by the Statute a new Election was to have been made I have one great Authority more and that is of an Act of Parliament too which in my judgment clearly proves against this Resolution of the twelve Judges in the time of 2 H. 7. that the King had no such Prerogative to dispence with the Sheriff's continuing in his Office longer then a Year But that the only dispensing Power was in the King and Parliament as I have affirm'd and in the King when any Special Act of Parliament shall for a time limitted enable him so to dispence And it is an Act in the time of a wise and powerful King who would not lose his Prerogative where he had right to it It is the Statute of 9 H. 5. c. 5. in the Statutes at large this Statute recites the Statute of 14 E. 3. whereby it was ordain'd that no Sheriff should continue in his Office above a Year And it recites further that whereas at the making of that Statute there were divers valiant and sufficient persons I suppose it is ill translated valiant and it should have been men of value in every County of England to exercise the said Office well towards the King and his People But by reason of divers Pestilences within the Realm and Wars without the Realm there was not now such sufficiency of such persons It is therefore ordained that the King by Authority of this Parliament of 9 H. 5. may make the Sheriffs through the Realm at his will until the end of four Years notwithstanding the said Statute made 14 E. 3. or any other Statute or Ordinance made to the contrary Here the King is entrusted with the Power and that but for a short time in the very Case of continuing Sheriffs in their Offices longer than a Year and that in a case of great and absolute necessity and this by a Special Act of Parliament which plainly shews he could not do it by any Prerogative he had of dispensing for then he would never have taken it under an Act of Parliament What ground therefore the Judges had in the second Year of Henry the Seventh to adjudge it to be a Prerogative in that King I cannot see and that Resolution is the leading Case to all the Opinions that have been delivered in the Point since that time and the Opinions still justifie themselves by that one first Resolve and cite that for their great Authority That Opinion seems to be delivered upon a sudden Question put to the Judges by the King's Council not argued nor deliberated on nor upon any Case that came Judicially before them and the Judges there take notice only of two ancient Statutes viz. 28 E. 3. c. 7. 42 E. 3. c. 9. both which barely forbid the Sheriffs to continue longer than a Year in their Office but no Penalty is imposed and the Earl of Northumberland's Case had a Non Obstante in it only to these two Statutes as appears by the Abridgement of that Case by Patent's Case 109. So that they did but ad pauca respicere de facili pronunciare But they do not take the least notice of the Statute of 23 H. 6. c. 8. which makes the disability nor do the Judges in that Case give that reason for their Judgment as Sir E. C. hath since found out to justifie it viz. His Prerogative inseparable c. Something may be observed from the time when that strange Resolution pass'd Judicis Officium est ut res ita tempora rerum querere It was in 2 Henry the Seventh in the beginning of the Reign of that King who stood high upon his Title and Power if we may believe a late Historian Mr. Buck. in his History of the Life and Reign of Richard the Third who in his Second Book fol. 54. discourses likewise of King Henry the Seventh and his Title to the Crown says of him That he seemed to wave all other Titles and stuck to that of his Sword and Conquest and at his Coronation he caused Proclamation to be made with these Titles Henricus Rex Anglioe Jure divino Jure humano June belli c. Which yet the Barons could not agree to tho' the King peremptorily avowed he might justly assume it having as a Conquerour entred the Land fought for the Crown and won it The Barons answered says the Historian as peremptorily That he was beholding to them both for his Landing and Victory But the more they opposed it the more he insisted upon it Now that King that made his Title by Conquest might carve out to himself what Prerogatives he pleased And who durst dispute it with him And this probably might have some influence upon that Resolution of the Judges being so early after his Claim viz. 2 H. 7. But I find Sir E Coke a Chief Justice of great Learning and of as great Integrity taking up the same Opinion It is in the Reports that go by the Name of Sir Coke's 12 Rep. fol. 18. No Act says he can bind the King from any Prerogative which is sole and inseparable to his Person but that he may dispense with it by a Non Obstante as a Soveraign Power to Command any of his Subjects to serve him for the Publick-weal and he instances in that of a Sheriff and quotes the Resolution of the Judges of 2 H. 7. and urges that of Judges of Assize that they may go Judges of Assize in the Counties where they were born or did inhabit if the King dispense with it by a special Non Obstante But he gives another instance which I presume none in these days will subscribe to and if he mistook himself in this instance he may be supposed to mistake and err in all the rest Purveyance says he for the King and his Houshold is incident solely and inseparably to the Person of the King And for this Cause the Act of Parliament of Henry the Third de tallagio non concedendo which barrs the King wholly of Purveyance is says he void If this be Law what a Case are the Subjects in that have given a
Recompence by a Revenue of Inheritance in part of the Excise to the King in lieu of Purveyances It is sober Advice given by Learned Grotius in his Book De Jure Belli pacis 82. Let us not says he approve of all things tho' delivered by Authors of greatest Name for they often serve the Times or their Affections and bend the Rules as occasion requires This Resolution of all the Judges in the Second of Henry the Seventh is again cited in Calvin's Case in Sir Coke's Seventh Report and there a Reason is given to justifie that Resolution which is not so much as touch'd upon in the Report itself of 2 H. 7. but it has been studied and found out since that Resolution viz. That an Act cannot barr the King of such Service of his Subject which the Law of Nature did give him And this is the main Reason insisted on in the late Judgment given in Sir Hales's Case as I am informed which is the only Case that I find which came to be argued upon the very point yet it was but lightly spoken to for that of 2 H. 7. which is the first of the kind was not upon a Case that came Judicially before the Judges but was upon a Consultation only with the Judges and without Argument Nor in any other Authorities that I have cited grounded upon that Resolution of 2 H. 7. did the Point directly come in question Judicially And Calvin's Case is the first that I find which offers this special Reason viz. That no Act of Parliament can restrain the King from commanding the Service of his Subject but it is an inseparable Prerogative in the King and as Sir E. C. speaks in his 12 Rep. Tho' an Act makes the King's Patent void and tho' the King be restrained to grant a Non Obstante by the express words of the Act and tho' the Grantee is disabled by the Act to take the Office yet the King says Sir Edward Coke may by his Royal Soveraign Power of Commanding command a man by his Patent to serve him and the Weal-Publick in the Office of Sheriff for Years or for Life And this the King may do for such Causes as he in his Wisdom shall think meet and profitable for himself and the Common-weal of which he himself is solely Judge says Sir E. C. So tho' the King and Parliament have adjudged and declared by a Law such a person or such a sort of persons to be altogether unfit for such a Service or Office. As for Example They have adjudged Papists who own a Forreign Authority and Jurisdiction and who hold Doctrines destructive and contrary to the Religion Established in this Kingdom to be very unfit and uncapable of being entrusted with the maintaining of the Government and the Religion Established by Law in this Kingdom Yet according to late Opinions and Resolutions tho' the King himself by the Advice of his Great Council have so adjudged and declared yet he may do otherwise and he may employ a Papist to defend the Protestant Religion and he is the sole Judge of the fitness of Persons for his Service This is the Discourse this is the Argument and Reason used Will this Reason be allowed of shall the King be the sole Judge of the Persons fit to serve him in all Cases and is it an inseparable Power and Prerogative in the Person of the King I shall put a Case wherein the Judges depart from this Opinion and appear to be of another mind In the Lord Anderson's Reports the 2d Part 118. It is there said If an Office in the King's-Bench or Common-Pleas be void and the placing of the Officer belongs to the King if the King grant it to a person not able to execute it the Grant is void as 't is there held by many of the Justices And there a Case is cited out of 5 E. 4. rot 66. where one Tho. Wynter was placed by the King in the Office of Clerk of the Crown in the King's-Bench The Judges before the King himself did declare him to be Inhabilem ad Officium illud pro commodo Regis populi sui Exercendum and he was laid by and one Roger West at the commendation of the Judges was put in Will any man presume to say the person is unfit when the King who is the sole Judge of the fitness of persons to serve him hath adjudg'd him fit yes the Judges in a Case that concerns the Courts where they sit it seems will controul the King 's own judgment and judge the person inhabilis and hold the Grant void in such case To compare our present Case with this The King and Parliament by a Law have adjudged the Papists unfit to be entrusted with the Government and with the preserving of the Reform'd Religion but says the Judges if the King without the Parliament judge otherwise his judgment shall prevail why not as well in the case of an Office in the Courts at Westminster which does belong to the King to dispose of as in an Office that immediately concerns the Safety of the King and Kingdom and the great concernment of Religion So here is one Command of the Kings set up in opposition to another Command of the King. A Command of the King upon private advice or it may be possible gained from him by surprize by an importunity or an undue solicitation against a serious solemn deliberate Command of the King upon advice with his great Council and with the Consent of the whole Kingdom this is the very Case before us This is against all reason and against the Examples of the greatest wisest and most absolute of Kings and Princes who commanded their Judges to have no regard to any Commands of theirs that were contrary to Law. Vinius the Civilian in his Commentary on the Imperial Institutes fol. 16. gives this Rule Rescripta Principum contra Jus vel utilitatem publicam Elicita à Judicibus improbari etiam ipsorum Imperatorum constitutionibus jubentur Princeps non creditur says he aliquid velle contra utilitatem publicam concedere 21 H. 8. c. 13. sect 10 11 27. Dispensations for Pluralities contrary to Act are declared to be void Hob. 82 149 146 155. The King is never by Law supposed ill affected but abused and deceived for Eadem praesumitur mens Regis quae est Juris Grotius de Jure belli pacis 112 113. Amongst the Persians the King was Supreme yet he took an Oath at his entrance and it was not lawful for him to change certain Laws made after a particular form If the King Establish the Decree and Sign the Writing it may not be changed according to the Law of the Medes and Persians which altereth not as we read in the Book of Daniel 6 Dan. 8. 12 15. By the Act of 2 E. 3. c. 8. it is accorded and established that it shall not be commanded by the Great Seal nor the little Seal to disturb or
several Statutes so forbidding it the King hath so done it by virtue not of his Prerogative but by a special Act of Parliament enabling him to do it for some extraordinary occasions and for some limitted time only See for this the Statute of 9 Hen. 5. cap. 5. in the Statutes at large and my larger Argument fol. 34. The truth is the Power of Dispensing is originally in the Legislators He only can dispense with a Law that can make a Law. The Power is equal and the Legislators can confer the same Power upon the King or any others for some convenient time c. as appears by the last Instance of the Sheriff and divers other like Cases mentioned in my foregoing Argument where I have also observ'd many other things upon that Resolution of 2 H. 7. concerning Sheriffs The Chief Justice Herbert supposes the Mischiefs recited in the Preamble of that Statute of 23 Hen. 6. cap. 8. concerning Sheriffs continuing in their Offices longer than one year to be equal if not greater as he judges than the Mischiefs recited in the Statute of 25 Car. 2. by Papists being in Offices And from thence I presume would infer that the Case of Sir Edward Hales is not so fatal in the consequence as the Case of a Sheriff I may appeal to any ordinary Judgment and to the sad Experience and Tryal we have so lately had and to the desperate Danger we were so lately in from which Almighty God by no less than a Miracle hath in great mercy deliver'd the Nation whether the Mischiefs that could any way possibly arise from the dispensing with the former I mean thâ— Statute concerning Sheriffs be comparable to the infinite Mischiefs arising from putting Papists into Office and intrusting them with our Religion and all our Civil Rights The Chief Justice upon those words of the Statute concerning Sheriffs viz. That no Non-obstante shall make them good infers that those words do shew that the Parliament which made that Act concerning Sheriffs was of opinion that had it not been for that Clause the King could otherwise have dispens'd with that Act by a Non-obstante Answ. This to me seems a strained Inference and that it is very far from shewing any such Opinion in that Parliament It rather signifies that had not the Parliament inserted that Clause into the Act the King might have done again as he had frequently practis'd before viz. granted Dispensations upon that Statute which ill practice they endeavour'd to prevent for the future not approving the practice nor owning the power of doing it Ex malis moribus bonae oriuntur Leges A good Law rather condemns a contrary practice before used I heartily desire my Reader as I have done in my foregoing larger Argument carefully to observe and examine of what sort and nature those several Cases are which the Resolution of the Case of 2 Hen. 7. urges to warrant that Resolution As those Cases concerning the true Value of Lands which the King grants and that concerning the shipping of Wool to a certain Staple c. and let the Reader judge how vast a difference there is between those Statutes in the nature and import and reason of them and this weighty important Statute now before us and how little that Resolution of 2 H. 7. can be warranted by the Cases there cited being of so inferiour and minute a Consideration in comparison of the principal Case It is true Sir Edward Coke if the twelfth Report which goes by his name be truly his hath since that Resolution given in 2 Hen. 7. found out new and different Reasons and Arguments which are not urged and therefore I presume never so much as thought on at that time by the twelve Judges who gave the Resolution in that Case of 2 Hen. 7. Thus says Sir E. Saundys in his Relation of the Religion used in the West parts of the World Those of the Roman Religion made their Greatness Wealth and Honour to be the very Rule by which to square out the Canons of their Faith and then did set Clerks on work to devise Arguments to maintain them Sir Edward Coke seems to justifie that Resolution concerning Sheriffs from this ground viz. That the King hath a Soveraign Power to command any of his Subjects to serve him for the Publick Weal And this is says he solely and inseparably annexed to his Person and that this Royal Power cannot be restrain'd by any Act of Parliament 12 Rep. fol. 18. That it is not solely annex'd to the King's person appears by the several Acts of Parliament which I have cited to this purpose in my larger Argument fol. 34. where the Power of Dispensing with some particular Acts was given to the King by the Parliament and by him accepted for some short time And the whole Parliament have in divers Cases themselves exercis'd this very Power Judge of the weight of the Reasons said to be given there by Sir Edward Coke by that one Instance of his in the Case he puts of Purveyance 12 Rep. fol. 19. which he says cannot be taken from the King no not by Act of Parliament Yet we have lived to see it lately taken away by Act of Parliament which in the Judgment of a Parliament which is of the highest Authority in Law may therefore be taken from the King. And is the King in truth restrain'd from commanding his Subjects to serve him for the Publick Weal either by those Statutes that disable Sheriffs to continue in their Offices longer than one year or by our Statute of 25 Car. 2. that disables Popish Recusants to bear publick Offices Because some very unfit uncapable and dangerous persons are disabled to bear Offices of Trust and Power and this by the King 's own consent to the Act and by the advice of the great Council the Parliament and indeed of the whole Realm Does the King by this which the Judges mis-call a Restraint want for choice of fit persons to serve in Offices Doth the Publick Weal suffer by this Restraint is it not rather preserv'd by it Hath not the King Protestant Subjects enow to bear Offices And are Popish Recusants who account Protestants Hereticks and to be rooted out and destroy'd and with whom they hold no Faith is to be kept and against whom they have been continually plotting Mischief are these the fittest to be intrusted with the Defence of the Protestant Religion and with our Lives and Estates which are all concern'd more or less in every Publick Office and Trust And are those persons the Papists that have a dependance upon the See of Rome and a Forreign Power fit to be intrusted with the power of the Nation with the Militia and the Sea-Ports Is not this to commit the Lamb to the custody of the Wolf This Act that disables Papists to bear Offices cannot be justly said to be a Restraint upon the King that expression sounds ill and takes the matter by the wrong handle It rather
imports the King's Declaration and Resolution by advice of his great Council to employ none in Offices and Places of Trust but such as are most capable and fit and will most faithfully answer the great Ends for which they are so intrusted that is the preservation of the Protestant Religion which is the true English Interest And this agrees with the Rules of the Common Law That if an Office be granted to one that is Inidoneus the Grant is void though granted by the King himself Of this I have treated more largely in my Argument fol. 37. The Lord Chief Justice Herbert pag. 16. asks the Question Whether so many solemn Resolutions of all the Judges of England in the Exchequer-Chamber are not to be rely'd upon for Law And I answer That if they were ten times as many more yet they are not to be rely'd on against many express positive Acts of Parliament directly to the contrary For what words could the Parliament use more emphatical and express and more to the purpose than by saying That a Non-obstante or a Dispensation or a Grant of such a thing prohibited by that Law shall be absolutely void and ipso facto adjudged void and the person made uncapable to take And is not a Judgment in Parliament and by Act of Parliament of the highest Authority But says the Chief Justice fol. 16. the constant practice hath been to dispense with the Statute of Sheriffs I answer It hath also been a very frequent practice too for the King to make such persons Sheriffs as were none of the number nominated or chosen as aforesaid by the Chancellor Treasurer Judges and other great Officers and it passes for currant that he may so do though it be a vulgar Errour For it hath been resolv'd by all the twelve Judges to be an Errour in the King. See Sir Coke's 2 Instit. or Magna Charta fol. 559. and yet it is practis'd to this very day The Chief Justice pag. 18. seems to excuse Popish Recusants for not qualifying themselves for Offices by taking the Oaths and the Test c. for that no man says he hath it in his power to change his opinion in Religion as he pleaseth and therefore it is not their fault It is an Errour of the mind c. Answ. Here is no occasion taken to find fault with them for their Opinion let them keep their Religion still if they like it so well who hinders them This Act of 25 Car. 2. imposes no Penalty upon them for their Opinion But is there any necessity of their being in Offices Must they needs be Guardians of the Protestant Religion The Penalty upon them by this Act is not for their Opinion but for their presuming to undertake Offices and Trusts for which they are by King and Parliament adjudg'd and declar'd unfit Page 20 21. The Chief Justice Vaughan is brought in arguing for the Kings Power of Dispensing with Nominal Nusances as he is pleas'd to call and distinguish Nusances The word Nominal as there understood imports that though a Parliament declares any thing to be a Nusance as sometimes they do in Acts of Parliament to render them indispensable which yet in its proper nature would not otherwise be so conceiv'd to be that such a Nominal Nusance as he holds may however be dispens'd with by the King though regularly by Law the King may not dispense with any Nusance Answ. Shall any single or particular person though a Chief Justice presume to call that a meer Nominal Nusance which a Parliament by a solemn Act and Law have adjudg'd and declar'd to be a real Nusance Are we not all concluded by what a Law says This Arrogance is the Mischief now complain'd of The Chief Justice Herbert pag. 22. at the lower end says That from the abuse of a thing an Argument cannot be drawn against the thing it self I agree this is regularly true yet we have an Instance to the contrary in the Scripture in that point of the Brazen Serpent But in our Case the abuse doth arise from the very nature of the thing it self from the constitution of it For the King practises no more in dispensing than what these Resolutions of the Judges allow him to do by this pretended Prerogative The Errour is in the Foundation They have made his Power to be unlimitted either as to number of persons or as to the time how long the Dispensation shall continue Sir Edward Coke says and so the other Books That the King is the sole Judge of these Nec Metas Rerum nec Tempora Ponunt The Chief Justice Herbert fol. 24. cites two clear Concessions as he is pleas'd to call them of all the Commons of England in Parliament which he esteems much greater Authorities than the several Resolutions of all the twelve Judges But how far these are from Concessions will easily appear to an indifferent Reader They are no more than prudent and patient avoiding of Disputes with the several Kings And there are multitudes of the like in the old Parliament-Rolls It is but an humble clearing of themselves from any purpose in general to abridge the King of any of his Prerogatives which have always been touchy and tender things but it is no clear nor direct allowance of that dispensing there mention'd to be any such Prerogative in him However I am glad to see an House of Commons to be in so great request with the Judges It will be so at some times more than at others Yet I do not remember that in any Argument I have hitherto met with a Voteâ— or Order or Opinion of the House of Commons hath been cited for an Authority in Law before now Will the House of Peers allow of this Authority for Law It will be said That this is but the acknowledgment of Parties concern'd in Interest which is allowed for a good Testimony and strongest against themselves Answ. I do not like to have the King and his People to have divided Interests Prerogative and the Peoples Liberties should not be look'd upon as Opposites The Prerogative is given by Law to the King the better to enable him to protect and preserve the Subjects Rights Therefore it truly concerns the People to maintain Prerogative I could cite several Parliament-Records wherein the poor House of Commons have been forced to submit themselves and humbly beg pardon of the King for doing no more than their Duty meerly to avert his displeasure See the Case of Sir Thomas Haxey whom the King adjudg'd a Traytor for exhibiting a Bill to the Commons for the avoiding of the outrageous Expences of the King's House 20 R. 2. num 14 15 16 17 and 23. and the Commons were driven to discover his Name to the King and the whole House in a mournful manner craving pardon for their entertaining of that Bill No doubt as good an Authority against the Commons for so sawcily medling in a matter so sacred and so far above them Yet afterwards