Of absolute necessity then it seems That there be some Supreme Power to rectifie the mischiefs of Time and Chance and by rectifying the rigor of Temporary Laws or dispensing with their inconvenience render them and their burthen the easier And where this Power lies shall be the Subject of the next Section SECT II. That this Power cannot lie in any Select part of the People or in the whole Therefore it must be in every Sovereign Prince or Absolute Monarch And such the Kings of England ever have been and now are c. IN any Select part of the People it cannot lie because no part can be greater or have more Power than the whole and in the whole it cannot for they are subject to the Law themselves as more particularly made to curb their Exorbitancies and keep that so much talk'd of Liberty from running into Licentiousness It remains then that it lie in the Prince i.e. A Sovereign Prince or Absolute Monarch who if he offend against those Laws is unaccountable to them Bract. l. 1. c. 8 1. Inst 1. b. as having no Superior in his Dominions but God And if this yet requires a further Explanation To have Merum Imperium an entire Empire Sir J. Davys 61. and all the Liberties of an Empire in His Kingdom is to be an Absolute Monarch But such the Kings of England ever had and now have Therefore the Kings of England are Absolute Monarchs Such was Edgar Anno Dom. 964. 4 Inst 359. who wrote himself Anglorum Imperator Dominus and call'd his Kingdom an Empire In the Laws of Edward the Confessor Leg. Ed. c 17. the King is stiled Vicarius Dei in regno suo The 16 R. 2. cap. 5. declares The Crown of England hath been free in all Times and in no Earthly Subjection but immediatly to God. Edward IV. is called Supremus Dominus noster Rex c. Which excludes all co-ordinate Authority The 24 H. 8. cap. 12. further declares That by sundry old Antique Histories and Chronicles it is declared and expressed That this Realm of England is an Empire and hath been so accepted in the World. And the 28. of the same King cap. 2. That the Kings of England are Lawful Kings and Emperors of England and Ireland which are no introductive but declaratory Statutes For they say not what the King and his Kingdom shall be but affirm what they anciently have been and now are Lastly The 25 H. 8. c. 21. The 1 El. c. 1. and 1 Jac. 1. c. 1. agree in the same and That the Crown of this Kingdom is an Imperial Crown In short all Offences are said to be against the Peace of our Sovereign Lord the King His Crown and Dignity And High Treason contra Ligeanciae debitum The Laws of England are called the King's Laws The Parliament His Parliament 22 E. 3.3 and therein also the King is sole Judge the rest but Advisers The Power of Calling Proroguing and Dissolving them is the King 's Their ancient way of Address was by Petition to Him. And the later Oaths of Supremacy and Allegiance acknowledge the King The Supreme Authority in the Kingdom And if this be not to be an Absolute Monarch what is It is enough to me that I have shewn the Apex potestatis and where ever that lies there lies the Government and puts it out of question whether this Supreme Power lie in the King or the People But to proceed I said before it could not lie in the People and I conceive made it out that it must be in the King however to make it yet more clear we 'll put both on the Ballance and let most weight carry it The People take them in Sensu Composito and what are they but an unwieldy Lump of every thing and nothing And in Sensu diviso a kind of Sheep without a Shepherd Every one of them has a frisk by himself One is for this Law another for that a third against both a fourth against all and so to the last as the Worm bites Quot homines tot Sententiae ever was and ever will be whereas the King besides that he hath but one mind and that directed to the good of the Community the Law presumes He can do no wrong as being best able to judge of those Laws of which Himself is both Maker and Interpreter Both Houses may Vote and Resolve as they please In the Royal Sanction only lies the Legislation and that Vis plastica that gives the Embrion Life and quickens it into Laws The King makes Laws with the Consent of the Lords and Commons not the Lords and Commons with the Consent of the King which shews that the Legislative Power is solely in the King For the Approbation or Publishing of Laws in a Senate proves not Bodin de Repub Lib. 1. cap. 8. the Majesty of the State to be in the Senate And being so it necessarily follows that He be also the Interpreter And so Bracton Ejus est Interpretari cujus est condere And to the same purpose Dyer Where the words of the Law are ambiguous Dyer f. 37 We must submit to the Declaration of the Law-giver The King who by the Advice of His Learned Counsel may without calling a Parliament expound the Law where it is doubtful as his Predecessors have done in like Cases And Sir Edward Coke gives the Reason 1 Inst f. 73 99. when he says The King is Caput Reipublicae Legis And in another place 2 Inst f. 268 presum'd to carry all the Laws In scrinio pectoris sui in his own Breast And what he means by those Expressions unless it be That as the Laws are the Kings Laws His also is the Interpretation of them and the Supreme Power of Dispensing with them a wiser Man than my self may be to learn which from a Person especially in his later days no Friend to Prerogative I lay the more weight on in as much as one Affirmative of his cannot but carry more force with every sober Man than all those Negatives he has so often jumbled against it Add to this The People have nothing but what they receved themselves Or if ever they had they would do well to shew it for Possession tho' by Disseisin is good against all men but him that hath the Right or otherwise they cannot be said to have given any Regality which was never in them For as all Government was Originally from God it seems also that it was never his intention that the People should have any share in it When there were but two Persons as at first God plac'd the Government in one and said to the Woman â—en 3.16 Thou shalt be under the power of the Man and he shall rule over thee And to prevent Confusion amongst their Posterity establish'd a Successive Monarchy in his Speech to Cain tho' a Bad and his Brother Abel a Righteous Person and that only by the
Jus Regium Coronae OR The KING 's Supream Power in Dispensing with Penal Statutes More particularly as it relates to the two Test-Acts of the Twenty Fifth and Thirtieth of His Late Majesty King Charles the Second Argu'd by Reason And Confirm'd by the Common and Statute Laws of this Kingdom In Two Parts Auctore Jo. Wilsonio J.C. Sir Edw. Coke 1 Inst 64. Imperij Majestas Tutelae Salus LONDON Printed by Henry Hills Printer to the King 's Most Excellent Majesty for His Houshold and Chappel And are sold at his Printing-house on the Ditch-side in Black-Fryers 1688. TO THE HONORABLE SOCIETY OF Lincolns-Inn IT is my Honour Gentlemen that I serv'd a double Apprentiship within your Walls and however I have for many years discontinu'd it is not possible that any Man bred in a Society of so much Learning and Air should have altogether forgotten what he once imbib'd The Loyalty of your House excepting some single Person here and there was in the worst of times exemplary Nor were Ye last in bringing the King back again to His And because the Dispensing Power best secures Him in it and the Kingdom under it unto whom more justly could I make a Proof of it than to that Honorable Body from whom I receiv'd it Such Gentlemen is the Discourse I herewith present Ye and in that being now no longer mine but Yours as none are more able be also as pleas'd to defend it Or so kind at least to say this of Your old Acquaintance That he spoke his Thoughts That he believ'd them true And on that account would not willingly quit them till he be better inform'd Gentlemen Your most Humble Servant John Wilson THE CONTENTS OF THE FIRST PART SECTION I. I. THat the rigor of Penal Laws were insupportable without some Supream Power above those Laws to temper that rigor and dispense with them as they become inconvenient Especially when all Human Actions are subject to Corruption and what might fit one time may be the bane of another Examples of it in the Lacedemonian Ephori The Roman Decemviri Dictator Triumvirat SECT II. II. THat this Power cannot lie in any Select part of the People or in the whole Therefore it must be in the Sovereign Prince or Absolute Monarch And such the Kings of England have ever been and now are Examples of it before and since the Conquest Further prov'd from Common Law and Statute Law. The King is sole Legislator and Interpreter of those Laws That it appears not to have been ever the intent of God that the People should have any share in the Government but rather the contrary That the Supream Power was not deriv'd from the People or given in Trust by them but radically in the Prince as reserv'd to Him from the first Origin of Power and before any positive or written Law at what time Men were govern'd by a Natural Equity SECT III. III. THat without this Supream Power the King were in a worse condition than the Subject 1. Any Restriction on the means of Livelyhood of a Subject is void A Fortiore on any necessary part of the Government 2. A Subject on some Accidents may break a Law yet not offend the Law. A fortiore the King when the Kingdom is in danger of which Himself is the sole Judge whither actual or expectant 3. A Subject shall justifie a particular wrong for a public Good. A fortiore the King for a common Benefit 4. Where the Subject is enabled to the greater he is of consequence enabled to the less A fortiore the King He may pardon the highest Offences much more prevent any lesser matter from becoming an Offence SECT IV. IV. THat no Government can be entire that is defective in any necessary part And therefore all Governments besides the power of the Sword have ever pretended to this Supream Power as a Sine quo non Both Powers discust That even our most prudently design'd Constitutions have turn'd to hurt prov'd from a Series of our own Histories That every of the late Vsurpt Powers as we call 'em frequently made use of this Supream Power of Dispensing c. An Answer to that common Objection That the King is sworn SECT V. V. THe Case of the Test 25 Car. 2d stated and that His Majesties granting Commissions to certain Persons not qualify'd according to the said Act and yet retaining them in His Service is warrantable by the Law of Reason and the Laws of the Land. By the Law of Reason 1. Whither we take the Argument Ab Honesto Ab utili or à Tuto 2. The King is bound to defend according to the best of His skill Who shall be Judge of that skill Himself or the People 3. What damage to the whole that the King makes use of some part without excluding the rest Or if it were a damage it is but Damnum sine injuria By the Laws of the Land. 1. As the King is bound to defend the Subject is bound to obey And this Service of the Subject is due to the King by the Law of Nature which cannot be taken away no not by Act of Parliament 2. A further proof That the King is sole Judge of the danger of the Kingdom and how and when it is to be prevented c. 3. The Law requires nothing to be done but it permits the way and means of doing it else it were Imperfect Lame and Vnjust The King is to defend shall He not chuse His Souldiers 4. A mixt Argument of Law and Reason from the time when the King granted those Commissions The Test examined When made By whom carry'd on To what end There was Bellum flagrans at the time when those Commissions were given out And that His Majesties yet retaining those Officers falls under the same Reason and Law. SECT VI. VI. THat the Statute has created a disability in the Person and other Objections answered 1. Object Grounded on the Disabilities created by the respective Statutes of 31 El. c. 6. against Simony The Vendee of an Office contrary to the 5 Ed. 6. c. 16. And the not taking the Oath of Supremacy according to the 5 El. c. 1. severally answer'd and prov'd not to be under the same Reason 2. Object That the King had other hands A Loyal City A trusty Militia Answ But is the King bound to make use of them in extraordinary Cases The King is Solus Rex semper Rex He may charge the Subject c. And Ordain without Parliament with Instances of both 3. Object Grounded on the vacating the Judgment for the King in the Case of Ship-Mony by the House of Lords in Parliament 1640. Answer'd And the King vindicated by truly stating the Case between His Majesty and that Parliament Their evil treating Him before the Commons Murder'd Him. That He was Virtually tho' not Formally under a Force And that Authority without Power is meerly imaginary SECT VII VII THe Sum of the whole further asserted and confirm'd
it A Non Obstante may be made to that Non Obstante for it taketh away a necessary Power out of the Kings Hands whose Person Ibid. Ann. 59â— and Royal Prerogative cannot be restrain'd saith Judge Jones no not by Act of Parliament And if there yet remain'd a doubt Sir Edw. Coke will pass for Authority when speaking of some Statutes that had restrain'd the King's Power of granting Pardons his words are these 3 Inst 236. But it hath been conceived which we will not question That the King may Dispense with these Laws by a Non Obstante be it general or special Now in as much as this power is not in the People or deriv'd from them it follows as before that it be Original Innate and inherent in the Person of the King Inter jura summae Majestatis and consequently inseparable 4. Statutes derogatory to the Prerogative have some of them been held for void others recall'd An Act of Parliament saith Sir J. Banks extends not to take away any Ibid. Ann. 569. thing that belongs to the Crown of Common Right for it is Lexterrae the Law of the Land. The Liberties of the Subject are by process of time become of Common Right an Act of Parliament against which 8 Coke 118. were void And can the Kings Prerogative from which those Liberties were at first deriv'd be of less right Of less force in Law When it is said Rot. Parl. 17. â— 3. N. 13. An Act of Parliament contrary to the Fundamental Laws and Prerogative of the King shall lose the Name of a Statute It binds not the King saith Judge Vernon and if it doth not bind â—â—id Ann. 581. what is it but void And his Reason is because it is Derogatory to the Prerogative For as Judge Jones The Power of the King is a Special Prerogative â—â—id Ann. 592. and if good at Common Law takes away the Statute Ibid. Ann. 598. pro bono publico And the Lord Chief Baron Davenport it would be Felo de se and so void because it would destroy the Jus Regale And that the King may revoke such a Derogatory Statute 〈◊〉 prerog 180. we have the Authority of Serjeant Rolle And that it is no new thing there are several Instances King John by Charter which says Gascoignâ— is no Statute 〈◊〉 E. 4.19 nor was it ever taken for such but where it concurs with Magna Charta grants That Nullum Scutagium vel Auxilium c. No Tenant by Knights Service shall be compelled to make a Voyage to War against the French or Scots or aid be taken without common consent but to make his Eldest Son a Knight Marry his Eldest Daughter And redeem his Person But when was this granted Was it not at Running-Mead An. Reg. 17. at what time there were Banners display'd and the Barons and Commonalty in open Rebellion against him An odd Modus tenendi Parliamentum And shall it be said an enforc't Act from a distrest King shall bind the Crown Or shall the Subject only plead Duritiam Minas It is somewhat yet that it has had no Confirmation in so many Parliaments since and what difference in substance whither the Candle be put out or go out of its self but that it leaves a Stench behind it However the next is in point Some things derogatory to the Crown had been enacted in Edw. the 3d's time As 15 E. 3. As that no Peer should be question'd but in Parliament No Great Officer remov'd but in Parliament No Clergy-Man come before Temporal Judges c. The King the same year on better advice revokes and Nulls them as contrary to the Laws of the Realm drawn from Him against His Will and prejudicial to the Prerogative of His Crown 4 Inst 52 But says Sir Edw. Coke the Printed Book supposes there was another Parliament in the said 15. E. 3. Whereas in Truth the Parliament that repeal'd them was in Quind Pas 17. E. 3. In answer to which it shall be enough to me that he owns these Acts were made the said 15. E. 3. as in Fact they were and that the Parliament of that year made no Repeal of them which also is as true and I hold with him But with this That it was a single Act of the King 's and out of Parliament for the King the same 15th year considering how in a manner He had disrob'd Himself of His Authority by His Writ or Royal Mandate to the respective Sheriffs which carries not the Stile of an Act of Parliament or any the other the Acts of His time Wills and Commands them that for the Reasons aforesaid they proclaim those Acts Null As may be seen in the Printed Statutes in a particular Writ to the Sheriff of Lincoln and a wonder it is this also had not been left out among the rest But now to come up with him The Contrivers of these Acts for it appears by them that the Grandees only not the Commons were concern'd in them saw the King had asserted His Prerogative and wanted not Resolution of going thro' with it and knowing themselves were to be the same Persons in the next Parliament thought it high-time to comply with the present and since the King would not come down to them to come up to Him and by making it their own Act stifle such a signal precedent for the Prerogative And therefore in the 17th of the said King which Sir Edw. Coke mentions those Acts were repealed in Parliament and further declared That they should lose the Name of Statutes as being contrary to the Laws and Prerogative Which with all due Submission I leave to every Man's Examination yet withal think that he that reported Calvin's Case might have forborn this or done it more Candidly But the Parliament of the 15th of His Father took better Measures there had been Ordinances in the 5th Edw. 2d That the King could not make War without the assent of His Barons The Parliament saw the King resolv'd to have them off and they generously prevented Him by a Repeal of their own as prejudicial Rot. Parl. 15. E. 2. M. 31. to the Royal Power of a King. 5. Examples of Personal Disabilities some created by Parliament Others by Ecclesiastical Canons dispenst with by the King Others void in themselves Wherein also I do but further confirm what I have before laid down and from the practice of past times make a reasonable Interpretation of the present The St. 4 H. 4. c. 31. says no Welsh-man shall be Justice or other Officer in any part of Wales Yet the King may dispense with it So the 8 R. 2. c. 2. says no Man of Law shall be Justice of Assize 12 Coke 18. or Gaol-Delivery in his own Country i. e. in the County where he was Born or doth Inhabit for so the 33. H. 8. c. 24. explains it under the Penalty of an 100 l. And yet the King 's
dispensing with it has been and is every days practice And if it were not for the King's License for Importing and Exporting several Commodities prohibited by Statute Informers and their Auxiliaries Knights of the Post might live well enough without the Sweat of their Consciences But admitting these may not come up as I see not where they fall short The 13. H. 6. c. 8. is in point No Sheriff says that Statute shall continue in his Office above one year under the Penalty of 200 l. and every Patent to that purpose to be void notwithstanding the Clause of Non Obstante And the person for ever after disabled to bear the Office of Sheriff And yet Edw. the 4th made a Sheriff for life cum clausula Non Obstante to that Statute and adjudged good 2 H. 7.6 by all the Justices Nor seems the Case of the Lord De la Ware to be altogether wide of the matter William West Nephew and Heir of Tho. Lord De la Ware had been disabled by Act of Parliament 3 E. 6. to claim any Lands Dignities c. from his said Unkle for his natural Life only 8 Eliz. Thomas dies The Queen restores William And by new Creation to the same Title calls him to Parliament where he had place as puny Baron and dies 11 Coke 1. Now the Case as it is reported by Sir Ed. Coke relates only to this whither the new Lord De la Ware should take his place to the antient Barony by Writ or according to his Father's Creation by Patent and resolv'd he should have it according to the antient Barony which at the time of the new Creation was only Suspended But I make this other use of it That an Act of Parliament in one King's Reign barr'd not the Successor of the Service of that Subject because it was due by a Title paramount the disability viz. The Law of Nature Here was a manifest disability created by Parliament in the Person of William and the intent of the Act was he should not serve in Parliament as Lord De la Ware The Queen finds she had use of his Service as Lord De la Ware and by new Creation enables him to perform it So then whither he sate in Parliament by vertue of the old Dignity or new Creation it matters not He sate in Parliament The disability was remov'd and the Queen had his Service And besides this there are other Matters contrary to the usage of the Realm and Ecclesiastical Canons in force among our selves that have been dispenst with by our Kings and that out of Parliament The Clergy by that usage and their own Canons are disabled to bear Secular Offices 2 Inst 121. and the doing otherwise has been complain'd of in Parliament 45 E. 3. yet our Kings have frequently dispenst with them in it and made them Chancellors Treasurers c. both before and since the Reformation and he scandals the Authority of both that will allow neither On the other hand Cromwell in Henry 8th's time was Merè Laicus yet the King made him His Vicegerent in Ecclesiasticis however otherwise incapacitated by the same usage and Canons And that there have been several Personal Disabilities created by Parliament yet void in themselves we have the several Examples of Edw. the 4th who in the Blood of His Father Richard Duke of York was disabled from claiming the Crown Henry the 6th to reassume it Henry the 7th attainted by Parliament Queen Mary and Queen Elizabeth respectively Excluded by the same Authority And yet the accession of the Crown clear'd those Disabilities without a Repeal and what better could there have been dream't from the late Bill of Exclusion 6. Lastly and to close all The King cannot devest Himself or restrain His Successor of any regal Right that is essentially in the Crown i.e. really annext to His Person as King Because it would be in prejudice of the Crown in making Him less King than He ought to be Nor are any of the King's Grants or Concessions to be understood otherwise than Salvo Jure Coronae For by the same Reason that any one part may be separated may also more and so from one thing to another even all at last and very well if it holds a Dukedom of Venice Whereas Quae Jurisdictionis Bract. l. 2. c. 24. Pacis sunt ad nullum pertinent nisi ad Coronam dignitatem Regiam nec à Coronâ Seperari possunt cùm faciant ipsam Coronam Such things saith he as concern the Supream Authority and Peace of the Kingdom belong to none but the Crown and Royal Dignity nor can they be separated from the Crown in as much as they are the very things that make it a Crown This Bracton was a Judge in Hen. the 2d's time during the heat of the Barons Wars and what he means by those Words but that the Crown were nothing without that Supream Authority and the power of executing it were worth his explaining that would draw any other sense from them And if he shall not it is but reasonable that he confess That the Crown is and ought to be preserv'd entire and as it will not admit of any false Metal to embase it will less endure any Clogs to encumber it I speak not of Popular or Consular States or what may have been practis'd in them Or Elective Kingdoms where tho One may bear the Title and Honour of a Prince He has not Merum Imperium the Supream Power of an Absolute Regality but is Himself subject to that Power which is transcendent to His and appertaineth to the State. But of the King of England over whom the States have no power in as much as all Power and Authority is deriv'd from Him de Lumine Lumen but as before Salvo Jure Coronae For the Royal Dignity is indivisible and every Subject owes Him Liege Homage De vita membro terreno honore for Life Member and Earthly Honour nor can any Earthly Power discharge him of it William the Conqueror created Hugh Lupus his Nephew Hereditary Earl of Chester and gave him the County in Fee Ita Liberè ad gladium 4 Inst 211. ut ipse Rex tenebat Angliam ad Coronam To hold it as free by his Sword as Himself-held England by his Crown Yet this exempted him not from remaining a Subject So a Grant to the Abbot of St. Bartholomew 14 H. 7.11 to be as free in his Lands as the King in His Crown Yet he was still a Subject and shall pay a fine But these may be said were the single Acts of a King and out of Parliament We 'll see now what a Parliament could do Richard the 2d by His Letters Patents created Robert de Vere Earl of Lincoln and Marquess of Dublin to be Duke of Ireland and grants to him for life Totam terram Dominium Hiberniae Portus Maris c. The whole Land and Dominion of Ireland The Sea
from several Statutes and other Authorities of the Common Law. 1. That there are several things so incident in Power to the King that it is not in the power of a Parliament to take them away 2. That both Kings and Parliaments have been ever tender of having them encroacht on as may appear by the Savings in several Acts of Parliament 3 That the power of Dispensing or granting Non Obstantes to Penal Statutes is one of those Incidents and that inseparable 4. That Statutes derogatory to the Prerogative have some of them been held for void others revok'd by the King solely 5. Examples of Personal Disabilities some Created by Parliament others by Ecclesiastical Canons dispenst with by the King others void in themselves 6. The King cannot devest Himself or restrain His Successor of any regal Right that is Essentially in the Crown Jus Regium Coronae c. The First Part. In which among other things the Statute 25 Car. 2. is discuss'd and prov'd that the King may dispense with it I Have taken upon me an Argument the King 's Supreme Power in Dispensing with Penal Laws c. Wherein nevertheless If all Knowledge be but Remembrance and the mind of Man knoweth all things and only demandeth to have her own Notions excited and awaked I hold my self the more excusable in as much as I broach no new Opinion but only call to remembrance what unbias'd Men know well enough if they would but recollect and therefore without further Apology I shall keep my self to the Method I propos'd in the Contents and begin with the first SECT I. That the rigor of Penal Laws were insupportable without some Supreme Power above those Laws to temper that rigor and dispense with them as they shall become inconvenient c. HAd the World continu'd as when God said of it And behold all things were very good Or at least in the condition of which the Apostle speaks who having no Law were a Law to themselves there had been no use of Laws Mankind had followed the dictates of Nature and done to every one as they would have been done to themselves But when that great Impress began to be obliterated and Man took no other measures than what his own Will or private Interest how repugnant soever to the well-fare of the whole prompted Princes the common Fathers of their Countries as well to obviate the Distemper as to keep peace among their Children first bethought them of Laws and gave them That such as would not do what they ought to do for the love of Virtue might yet be deterr'd from doing what they ought not to do for fear of the Punishment These Laws therefore like ancient Statues were drawn bigger than the Life that they might be seen at distance and perform the Office of a Pharos in giving notice of a dangerous Shoar Esto and Sunto was their best Language and that too under the greatest severity and largest comprehension that no one might presume to think himself exempted And now since it is not in Man that he be impeccable but that even the most cautious some time or other fall foul of those Laws and much more they that never heed their steps What would become of every Man if the rigor of Law should be let loose upon him Whosoever but stumbles on it is in danger of brusing and on whom soever it falls it crusheth him to pieces In short The wringing of the Nose causeth Blood saith Augur and if every man's actions shall be stretch'd as far as they may be strein'd who knows what bloody construction may be made of them To go no further than our own Penal Statutes some obsolete others by process of time become apparently impossible or inconvenient to be perform'd What work have they in former times made among the People Have they not been such Thorns in their sides or rather Snares to vex and entangle them that Pluet super eos laqueos might but too truly be said of them And is any man so secure at present that he is sure there is nothing can reach him Has he so wash'd his Hands in Innocence that he but thinks he could say In nullo erratum est I am apt to believe all men have offended more or less and consequently cannot be without some apprehensions of danger Even Oxen boggle at a Slaughter-house And Man of all creatures is most uneasie with a Sword over his Head How necessary then is it that there be some Supreme Power above those Laws to temper their Rigor and dispense with them as they shall become inconvenient where by dispensing I mean the Relaxation of a Law whereby that is permitted to be done which otherwise the Law had prohibited Nor would I be so taken as if I carry'd the least Eye against any Law that concerns Property No I confine my self to such Laws as respect Government and which by reason of unforeseen accidents that may happen or the necessity of State that require it are in their own nature dispensible for as much as Acts of Parliament being but Leges temporis and made for the present occasion it may so happen that what was meant for the preservation of the Government may by a Vicissitude of time turn to the destruction of it The clearest Waters will gather a Sediment and the freshest Streams run down into the Salt Sea of corruption And therefore if Princes shall not by Industry and Policy keep head against the inclination of Time all Institutions be they never so pure will corrupt and degenerate The Lacedemonian Ephori were at first so many Assistants to their Kings but what by the corruption of Time and Manners and the want of a Cheque on them overtop'd the Monarchy In like manner the Decemviri of Rome primarily intended for the better administration of Justice in making a supply to such Laws as they wanted and rectifying and amending such as were faulty prov'd a Remedy worse than the Disease and ended in Tyranny Add to this That their so often successful Officer of Dictator or Populi Magister for there lay no Appeal from him to the People was never chosen for above six Months at one time nor then either but upon some imminent danger and to avoid the confusion of several Commands Yet that so cautelously design'd preservative of their Liberty became at last its destruction in Julius And lastly The Triumvirat of Augustus Antonius and Lepidus promis'd fair for setling the Common-Wealth but proscrib'd it into Confusion So Morally impossible it is that any condition or State of Men or Constitutions of their making be the same in all Times or sute with all occasions and therefore Remedies ought to be provided as fast as Time breeds mischief The first Man being in Perfection abided not and what may be expected of his Posterity all Ages have found Damnosa quid non imminuit dies Aetas parentum pejor avis tulit Nos nequiores mox daturos Progeniem Vitiosiorem
right of Primogeniture â—â—d 4.7 His desire shall be to thee and thou shalt rule over him And from thence it Succeeded in Jacob's Family for almost 2000 years â—â—d 49.3 Reuben Thou art my First-born the Excellence of Dignity and Power 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Honor and Authority i.e. the Supremacy of both Or as the Vulgar Latin Prior in donis Major in Imperio And when he with Simeon and Levi were for several Crimes disinherited by their Father and the Primogeniture fall'n to Judah to him it is said Thy Brethren shall Honor thee Thy Father's Children shall bow down to thee And ver 10. the Scepter entail'd to him Thus far in the World and the People had no Sovereignty in them and if they cannot shew when or how they got it since it remains that it lie radically in the Prince as innate and inherent in his Person and not deriv'd from the People or given in Trust by them but reserv'd from the first Origin of Power Nor need I run from Home to prove it such among our selves For whence is it that all Lands are mediately or immediately held of the King 1 Inst f. 1. f. 65. f. 85. as Lord Paramount but that they came first from the Crown 12 H. 7.17 Or that at the beginning all Administration of Justice was in one Hand i.e. the Crown But that it was innate in it 7 Coke 13. All Dominion was deriv'd from it and what has not been granted from it remains in it There were Kings Ibid. 12 H. 7. before any Positive or written Laws and Men were then Govern'd by a Natural Equity And what more consonant to it than that a Sovereign Prince should not be defective in any thing requisite to the support of that Sovereignty When without it He were but as a common Person Nay how truly might it be said in another sense Ecce homo factus est sicut unus è nobis Yet such must the King be if he cannot temper the rigor or dispense with the inconvenience of a Penal Statute And there being a natural Equity also that some such Supreme Power be for the common convenience of all Men which for as much as it cannot lie in the People it follows that it be in the King as innate in Him and a Branch of His Prerogative which was before Laws were and is now become a part of the Law of the Realm 2 Inst 496. Stan. pl. c. 162. Cow. Tit. Prerog And this Cowel defines to be That especial Power Preheminence or Privelege that the King hath in any kind over and above other persons and above the Ordinary Course of the Common Law in the Right of His Crown Nor without Reason Lib. 2. f. 55. for as Bracton Dominus Rex est supra omnes qui ad Coronam pertinent And in another place Rex non habet parem in regno Lib. 4. S 1. bid S. 5. And again Nec Superiorem nisi Deum Our Lord the King saith he is above all His Subjects E. 3.19 He has no Equal in his Realm Nor Superior but God. Now if Acts of Mercy and Goodness draw nighest God how necessary is it that were they lost every where else they should be found in a King A chescun Roy saith the Book apent per reason de son Office E. 3. f. 2.9 à faire Justice Grace It belongs to every King by reason of his Office to do Justice and shew Mercy And what is Mercy but a rebating the edge of the Law Quibus tamen qualiter miserendum est â—ract l. 2. doceant eum merita vel immerita personarum But unto whom and to what degree he shall be merciful let the good or ill desert of the Persons direct him Which fully proves that the King is sole Judge of this Mercy When the King Pardons He makes a total Remission of the Offence but when He Dispenses He only prevents a matter not otherwise evil but as prohibited from becoming an Offence A Branch of an Act 11 R. 2. c. 3. That no one against whom any Judgment Inst 42. or Forfeiture was given should sue for Pardon or Grace was made void And it was an Article against Cardinal Woolsey Ibid. 93. Art. 37. That he had forbidden to sue for the Kings Favor or Pardon which amongst other things is there said to be contrary to the King 's High Honor Prerogative Crown Estate and Dignity Regal Nor without Reason for as a King 's being tender of his People is not the least part of His Glory so the intercepting those Beams gathers a Cloud between Him and His People and in a manner robs Him of the advantage of being kind to Himself To close this I have prov'd it of absolute Necessity for the common convenience of all Men that there be some Supreme Power to temper the rigor of Temporary Laws and dispense with their inconvenience And as fully prov'd where this Power lies That the Kings of England have anciently been and now are Absolute Monarchs That the King's Prerogative is a part of the Law of the Land And that to Him only belongs Mercy as well as Justice In the next place we 'll consider it more particularly as it relates to the King's Power of Dispensing SECT III. That without this Supreme Power the King were in a worse Condition than the Subject c. THe Word King 4 Inst 352. is Nomen Politicum and imports that Politic Capacity which never dies but extends to all his Successors as well Kings as Queens of England Now if this Supreme Power as before and shall be further shewn in its proper place be Innate and Inherent in the Person of the King and not deriv'd from the People the same Reason that has in all times supported the Liberty of the Subject makes stronger for this Power without which that Liberty had never been at best indesensible For neither can any Man grant what he has not nor defend without the means of doing it The Subject has receiv'd But how Ex Gratia And can Favor be said to destroy an ancient Right which runs in Succession Trees and Plants give us Fruit and Flowers but the productive Virtue still remains in the Root The Liberty of the Subject is a precious thing But to talk of Liberty yet deny the Prae-existence of a Prerogative which first gave and has ever since supported that Liberty what were it but to reimagin That House on the Sand The same Causes must and will have the same Effects Nor is this all The King has common justice on his side Cap. 29. No Free-man saith Magna Charta shall be Disseiss'd of his Freehold or Liberties Which Sir Edward Coke thus glosses Liberty saith he is that Freedom which Subjects have And if any Statute be made contrary to Magna Charta it shall be holden for none I leave this last to the Learned But if a Subject shall not be
is to command It is by the same Authority intrusted to him for the good of the Community and shall he stand accountable to God for the discharge of that Trust and yet be restrain'd by them in the common exercise of it Nay is it not a disappointment of that Trust by disabling the performance of it in the Interdiction of the means Or suppose he could transfer that Trust were it not a discharge of the power of executing it And then where lay the necessity of Obeying For Empire and Obedience being Correlatives where the Right of commanding ceases the Duty of Obeying ceases with it and the Government is no longer from God but the People And here also the granting those Commissions being but a just Assertion of that power entrusted as aforesaid are also warrantable by the Law of Reason and consequently well granted 3. What damage is it to the whole that the King makes use of any part without excluding the rest who are equally oblig'd to serve him with the rest in as much as what concerns the whole ought to be defended by the whole and where the danger is general the defence ought to be as general Or if it were a damage it were but Damnum sine injuria because the Law of Nature as I shall come to shew presently wills it Of what use is a Diamond in the Rock Arms in an Arcenal without Hands to manage them Or Books in his Study that dares not take them down for fear of misplacing One half of the World lives by credit with the other half No Commerce or Traffick could be kept up without it And even Princes themselves are secur'd at home by their Reputation abroad And does not this Reputation lie in Strength i.e. the power of commanding their Subjects And if any part of that strength be taken off is it not a lessening the strength of the whole Or can that whole be said to be safe when any part lies unguarded I cannot tell what the Men of the next Age may be but experience has taught those past That the Tortoise is secure within its Shell but if any part lies out all the rest are in danger And inevitably the same must the Condition of that Prince be who shall be thus wanting Whereas on the contrary that of Dido to Aeneas Tros Tyrjusque mihi nullo discrimine brings all to rights again For the King is abridg'd in none of his Subjects The Kingdom has its whole strength And every Man becomes another Arrow to the Bundle Here is no danger of Obstructions for the Circulation is clear No Quarrel among the Children for they are all alike to the Father And no fear of a Discontented Party when every one falls in to the support of that whole whereof he reckons himself a part In a Word tho' the Garment be of divers Colours there 's no Rent or Seam in it No Wound to fester or bleed inwards No jarring string to break the Harmony or excuse for standing idle in the Market-place when they may come in if they please And therefore these Commissions being of no damage but on the contrary a further Security to the Kingdom I conceive them further also warrantable by the Law of Reason and consequently as far as that goes well granted Nor are they less warrantable by the Laws of this Kingdom For if the Kings of England by common usage which is common Law have without Parliament nay during the time of their Sitting but without taking the least notice of them by their own inherent power grounded on the necessary reason of defence commanded their Subjects to their aid and if several Acts of Parliament have declar'd That the Subject owes the King a natural Obedience and Alligeance and are thereby bound to serve Him then His Majesty 's now granting these Commissions is also warranted by the Laws of the Land. And that it has been so done and declared I am coming to shew 1. That the King is to defend and the Subject to obey Judge Hutton's Argument against the King in the â—ase of Ship-Mony needs no proof An Act of Parliament that he should not do it or have no aid from them were void in its self because it would be against natural Reason saith Judge Hutton And Judge Crooke who also gave his Judgment against the King in the same Case confesses That when the good and safety of the Kingdom is in danger Judge Crcok's Argument in the same Case the King may command all his Subjects to provide and furnish Ships at Sea with Men Munition c. at their own Charges And this saith he I hold to be agreeable to Law and Reason Edw. the 3d in the 10th 11th and 12th of his Reign a Parliament then sitting sent out his Writs for Aids without taking any notice of them or the least complaint on their side that the King had stretcht his Authority The two Chief Justices and Lord Chief Baron in the same case said It was the constant practise in the Reigns of Edw. 1. Edw. 2d Edw. 3d. Annals of Ch. I. Fol. 599. And so agreeable to the Common Law of Kingdoms That the King might compel the doing it in case of refusal No Age Order or Person exempted Ibid. An. f. 517. So Rich. 2d commanded all Men between 16. and 60. to be in readiness Writs to Archbishop of Canterbury York Abbots c. That they and all their Clergy 1 H. 4. should Manus adjutrices apponere The like of the same King to several Counties of England to array all the Lords omnes homines defensibiles and all such as were able to bear Arms and those that were impotent and could not go to contribute The like in Hen 6th Hen. 7th and Hen. 8 's time And to the Cinque Ports 48 H. 3. That they come Day and Night to the King when any danger is For as Judge Jones Ibid. An f. 591. Br. Ten. 44.73 Fitz. N. B. 28. 7 Cok in Calv. with whom also agrees our Statute Law The King hath an interest in the Person of His Subjects pro bono publico Or as need requires And may dispose of their Bodies for the defence of the Kingdom Stat. 2 H. 4. c. 24. 9 H. 3. c 20. 11 H. 7. c. 1. 18. 24 H. 8. c. 12. 3 Ed. 6. c. 2. Command them to go with Him or without Him in His Service as well without as within the Realm And the reason of all this is because they are bound by their Alligeance to serve Him and this Alligeance due by the Law of Nature In short every Subject is by reason of his Natural Alligeance bound to serve the King when required by the King But no Act of Parliament can discharge the Subject from this Natural Alligeance Therefore every Subject is bound to serve the King when so required To which if it be said a disability is no absolute discharge I answer where lies the
may pardon Treason Murder c. is no Question but that He might dispense with the practice of them was never thought of for such a permission would be contrary to Original Justice Moral Honesty Common Equity Humanity c. not to be presum'd in a private Man much less in a Prince as being a breach of that Trust God has repos'd in Him Whereas Mala prohibita being otherwise indifferent in themselves and only evil in respect of the Prohibition when that Reason ceaseth or becomes inconvenient the Law also so far ceaseth as that the King whose interest is the common good of the whole may nay ought to dispense with it The six Articles in Henry the 8th's time on which so many promiscuously suffer'd 31 H. 8. c. 14 did the King do well or ill in not dispensing with that Statute If He did well why is it laid as a charge on Him and if He did ill it must be acknowledg'd that He had the power of doing otherwise in dispensing with it For a Man cannot be said to have done evill but where it was in his power to have prevented that evil and he did not But to come to the particular Instances of Simony c. Simony it is vox Ecclesiastica and tho' it first became Malum prohibitum by the Canon Law whereof the Judges of the Common Law could take no notice before the Statute yet that it was Malum in Se long before either Common or Canon Law appears by the judgment of St. Peter against Simon Magus Acts 8.20 who thought the Gift of the Holy Ghost might be obtained by Mony And tho' Presentation and the right of Patronage be Temporal Matters yet they are called Spiritual in respect of the thing to which the Presentment is made which is Spiritual and consequently every corrupt Presentation is a dishonour to God against the good of the Church and an injury to the Common-Wealth and withal so much the more odious in that it is always accompany'd with Perjury for the Presentee at the time of his Institution takes an Oath That he has made no Simoniacal Contract Payment or Promise directly or indirectly by himself or any other for the obtaining the same c. And therefore nor without just reason has the Statute provided so severely against it in creating an indispensible disability in the person so offending Then for the buying of Offices Not to put the Question what it was before the Statute or how punishable yet this I may venture to say That besides that it is a bar to industry and Merit and makes it as impossible for deprest vertue to rise as to draw a Cable thro' the Eye of a Needle it opens a way to the perverting of Justice or at least begets an Obstruction in the Administration for it is not to be expected but that he that buys the Devil will again try how the Market goes with him Jure potest emerat ille prius And therefore to keep the Eyes of the Wise open and the Actions of the Just from being Perverted it was as necessary in this matter as the former that the Statute should create such an Indispensible Disability However admitting not granting it to be no evil in its self it receives this further Answer That the Vendee being disabled by the Contract to take the Office can never be legally vested in him after such disability accrewed and consequently the King cannot remove it which is not the present case as I shall come to shew presently Lastly for what concerns the not taking the Oath of Supremacy no Man I presume will say that it was an offence before the Statute for though the not acknowledging the King to be Supream in His Dominions was an offence at Common Law and before any Statute because every Man being bound to the King by reason of the Protection he receiv'd from Him the Law of Nature oblig'd him to acknowledge it and return it in service whence the Kingdom was call'd The King's Ligeance The King 27 E. 3 c. 1. 10.11 R 2. c. 1. 25 H. 8. c. 3. 34 35. c. 1. Liege-Lord And the People His Liege-men Yet the not testifying and declaring it by the formality of an Oath could not be said to be an Offence before there was some express Law to exact such an Oath for Ubi nulla Lex ibi nullum peccatum But now that the Statute has required an Oath and that no Member c. not having first taken it enter the House under the Penalty of being deem'd as if he had been never elected and return'd as on the one hand and if nothing intervene it is become necessary to preserve that Election c. So on the other it is but a Penal Law and consequently the King before any such Member shall come to sit in the House may grant him Dispensation for not taking the said Oath and thereby prevent any disability from accrewing which once accrewed could not have been remov'd Now the difference between these Cases and that of an Officer c. upon this Statute lies here The First was Malum in Se and so indispensible The Second Carries an impossibility for the Office being void by the Contract a Subsequent Dispensation can have nothing to work upon But the Last and that of an Officer c. will very well agree for if either of them by his own neglect or refusal shall have incapacited himself before he shall have obtained the King's Dispensation the disability is fix't beyond the possibility of removing it but the Dispensation coming before the Disability accrewed it is prevented And how reasonable it is that the King have this full power in Him will further appear by bringing the Matter to a more familiar English Says the Statute you shall do every thing hereby required or hold no Office. Says the Person not so doing I was born to obey and serve the King but the Circumstances are hard upon me The Statute is in the disjunctive I 'll take the easier part of it and quit my employ But says the King he is my Subject and I have use of his Service which is due to me by the Law of Nature Shall the King here suffer an inroad upon the Law of Nature which is indispensible or make use of His Royal Authority in dispensing with this Statute when without that Dispensation that Service were lost I conceive He may For the Statute its self shall have some reasonable entendment to the Maker thereof And shall any Man believe it was the King's intention when He past this Act to exclude Himself from the power of judging what were convenient or inconvenient for the Government And of what use were that judgment if he saw an inconvenience and could not step over it I do not say the King may absolutely discharge the said Oaths but if for Reasons best known to Himself He think fit to dispense with them what is that to us who have
Hambden of the County of Bucks and whose share was but 20 s. makes default The King an Reg. 12. Writes to the Judges and demands their Opinion in Writing Whither when the good or safety of the Kingdom in general is concern'd the King may not by Writ under the Great Seal command all His Subjects of this Kingdom to furnish a certain number of Ships and Men for such time as the King shall think fit and by Law compel the doing it in case of refusal And whither in such a case He is not the sole Judge both of the danger of the Kingdom and when and how the same is to be prevented and avoided To this every one of the 12 Judges did subscribe in the Affirmative Thereupon process is issu'd out of the Exchequer against Hambden He demurs upon the Legality of the Writ It is argu'd by all the Judges The Majority of them give their Opinions for the Writs on which the Barons gave Judgment which Judgment was in the 16th of the said King 27 Feb. 1640. vacated in Parliament But with due honour to all other Parliaments what Parliament was it It was begun in that House of Commons that afterward Murder'd that King And tho' the Vacatur was per Considerationem Judicium Dominorum Spiritualium Temporalium in Curia Parliamenti c. Yet as to the Lords Spiritual this may be said That a leading Man among them then was and from the time the Seal had been taken from him had been also a Discontent nor was it hard to perswade Persons interested that the Clergy were not liable to Secular Charges whereas aid in War building of Bridges and raising Forts is that Trinoda necessitas that binds the Clergy as well as the Laity And what got they by it but that as it open'd a Gap to several Acts that past afterwards so the King being lessen'd in His Authority was unable to defend them from a worse Vacatur which was put upon themselves 17 Car. 1. c. 22. within one full year after it And for the Lords Temporal such or most of them I mean as follow'd not His Majesty to Oxford they joyn'd with those Commons in making Ordinances to raise Monies and Arms for the carrying on of that Rebellion which afterwards inaudito Regibus exemplo brought Him to the Block and their Priviledge of Peerage with Him. In short the matter is beyond excuse if they would not have had the Clock gone they might have chosen not to have wound it up or taken off the Weights For tho' that Vacatur of the House of Lords upon the Judgment in the Exchequer was confirm'd by an Act of Parliament what was gotten by that 20 s. which cost the Kingdom more Treasure than it was at any one time worth to have been sold and more Blood than would have Conquer'd another Nor was it more than necessary to have said so much touching that Parliament with whom the King was virtually tho' not formally under a Force For as preparatory to what ensu'd they first got an Act of Parliament that they should not be Dissolv'd or Prorogu'd but by Act of Parliament And having gotten this Footing in the same Runn they procur'd others for taking off The several Courts of the Star-Chamber Presidencies of Wales See the Acts of the 17. Car. 1. and the North Dutchy of Lancaster Exchequer of the Palatinate of Chester High-Commission And now to throw a Personal disrepute upon His Majesty they bring in that Bill against Ship-mony as having prenecessitated Him not to deny any thing And having in the same heat got the Stannaries and the Statute 1 E. 2. de Militibus taken off and the Bishops out of the House of Lords the very next Act that past was the impressing Souldiers for Ireland And what did they do with them See the King's Answer to their Irish Papers But having driven the King from Whitehall by Tumults fought Him at Edge-Hill with those individual Forces Thus inch by inch fell that goodly Oak of the British Forest His Roots and Binders were cut off and what wonder if His own weight brought Him down Or that the People were so intent on gathering the Sticks that they wanted leisure to heed what was done And now to close this Section If Authority without Power be but what Lucan says of Pompey Magni nominis umbra as without further proof was verify'd in him That Government certainly must be an imaginary nothing or at best but painted wings that has not the power of preserving its self as the Emergency or Exigence of Affairs requires Nor is it ever likely to be long liv'd where it wants the Resolution to make it self obey'd It is said of Saul that he feared the people 1 Sam. 15.24 But it lost him the Kingdom And how probably can it be otherwise when the People shall be more at Liberty than the Soveraign Shall they stop at nothing for Subverting the Government and is it reasonable the King be abridg'd for the saving it What hurt is it that Caesar have the things that are Caesar's especially when the profit and advantage is the Peoples The contrary I am sure has ever embroyl'd us and he that goes no further than our own Histories will find That the more our Kings have been bound the more have they shaken off those Fetters and the more it has been endeavour'd to restrain their Rights the more have they ever exerted their Authority In a word we have the Interest of a King for our Defence and the Word of a King for our Security and if an Act of Parliament cannot bar the King of any thing that is due to Him of Common right how much better were it to believe Him to be what we would have Him and make him so than by disputing the dividing Mathematical points and engaging our selves in impracticable Notions catch at Shadows and lose the Substance The Camel in the Fable might have kept his Ears if he could have been contented without Horns SECT VII The Sum of the whole further asserted and confirm'd from several Statutes and other Authorities of the Common-Law c. I Have already prov'd the necessity of this Supream Power That it is innate and inherent in the Person of an absolute Monarch What that is That the Kings of England are such And spoken at large to their power of Dispensing It remains now that for a close of the whole I further shew I. That there are divers things so incident in power to the King that it is not in the power of a Parliament to take them away II. That both Kings and Parliaments have been ever tender of having them encroach't on as may appear by the Savings in several Statutes III. That the Power of Dispensing and granting Non Obstantes to Penal Statutes is one of those Incidents and that inseparable IV. That Statutes derogatory to the Prerogative have some of them been held for void others recall'd by
the King alone V. Examples of Personal Disabilities some created by Parliament others by Ecclesiastical Canons dispenst with by the King others void of themselves VI. The King cannot devest Himself or restrain His Successor of any regal Right that is essentially in the Crown These are my Materials for covering the House I shall proceed to finish it 1. And that there are many things so incident in power to the King that it is not in the power of a Parliament to take them away Judge Hutton of whom before agrees it with the rest of the Judges and Instances in the Case of Henry the 7th Annal Char. 1. f. 592.593 and that a Parliament could not dispose the Right of the Crown The Power of making Wars and Leagues which also was agreed by Judge Crooke The Power of Coin and its value The sole Power of Calling Ibid. 582. Proroguing and Dissolving Parliaments And that no Law can be made without His consent And many other Monarchical Powers and Prerogatives which saith he to be taken away were against Natural Reason and further calls them Incidents so inseparable that a Parliament cannot take them away For in another place they belong to His Crown as Head and Protector And again both of them An Act of Parliament That the King should have no aid of His Subjects would not bind because it would be against Natural Reason Which was but a Confirmation of what Judge Crawley and others the Judges had delivered in the same Case And further says the said Judge Crawley you cannot have a King without Regal Rights no not by Act of Parliament And what are these Regal Rights but the Kings Prerogative which contains in its self Matter of Prescription Plowd 332. and is consequently as inseparable Incident 2. Both Kings and Parliaments have been ever tender of having them encroacht on as may appear by the Savings in several Acts of Parliament The St. Praerogativa Regis 3 E. 1. closes thus The King would not that at any other time His Concessions thereby made should turn in prejudice to Him or His Crown but that such Rights as appertain to Him should be saved in all points So the King will not draw any Aid 25 E. 3. c. 5. or Prize into Custom but by the common Assent of all the Realm Saving the antient Aids and Prizes due and accustomed So no Imposition shall be set upon Wooll 11 R. 2. c. 9. Leather c. other than as granted by Parliament and if any be to be nulled Saving to the King His antient Right So 1 H. 4. c. 6. the King is content to be concluded by the Wise Men of His Realm touching the Estate of Him and His Realm Saving always His Liberty i.e. His Prerogative Now what 's the meaning of those Savings But that those Parliaments considering there might in after time some new Accidents happen which could not be then foreseen they bethought themselves of no better way of securing against them than by leaving 'em to the King's Discretion And therefore when it is said The King will not do but so or so what other can it be but that the King will not ordinarily do otherwise And that it was not the Parliaments intent but that in Cases extraordinary He should make use of His antient Right And what antienter Right than the Service of the Subject for defence of the Kingdom Nor is it to be thought but when the Law assigns the King the defence of the Kingdom it presumes Him also the power to raise the means for the doing it Or else it were but the charge of a defence without the power and means And if the King could not do this out of Parliament then were the Parliament the sole Judge and not the King which also were contradictory to the free Majestick Power of a Monarch And if this be not enough there is yet another Statute that makes it clear For when it says no Man shall be compell'd out of his Shire 1 E. 3. c. 5. but when necessity requires and then shall be done as in times past How is that If the King before that Statute could not have don 't that But had been to no purpose and if the King before that could have don it as I have shewn what was the constant practice of His Father's and Grand-father's times it is a plain Confession of that Right and a modest entreaty that He will not ordinarily make use of that discretionary power but as Necessity requires Other while again we have it by Implication where such Savings have been omitted As when the Petition of Right was in agitation 3 Car. 1. the Commons to take off all doubt of encroaching on the King 's Rights made this Protestation That it was not their intention thereby to bind the King from His ancient Right which the King also on His passing that Bill takes particular notice of however it comes to be left out in the last Edition of the Statutes at large as that Clause saving the King's Regality in the Statute 2 R. 2. St. 2. c. 4. for Confirmation of Liberties is omitted in all of them Nor was this Protestation made without Reason for it had been long before declar'd 42 E. 3. 4 Inst 14. 357. that they could not consent to any thing in Parliament that tended to the disinherison of the King or His Crown to which they were Sworn It was 18 E. 3. c. 4. and is a part of the Judges Oath And of the Coronation Oath That He shall keep all the Honours and Dignities of the Crown Cowel Tit. Oath in all manner whole without minishment and the Rights of the Crown hurt decayed or lost to His Power shall call again into the antient Estate From which it is undeniable but that the King has antient Rights and being so it necessarily follows That they cannot be taken away till prov'd to be forfeited And if forfeited who shall sit in Judgment on it when the King having no Peer in His Realm 3 E. 3.19 cannot be judged Himself nor by His own Authority and other there is none in His Realm 3. The Power of Dispensing or granting Non Obstantes to Penal Statutes is one of those antient Rights Sir Robert Holburn of whom also before confesses it The King saith he may dispense with Penal Laws and make them as none Ibid Ann. 552. For there is a necessity that this Power should be in some Body No Law says the King shall not do it and Acts of Parliament are but Leges temporis Book of Law. 82. The King saith Sir Henry Finch hath an absolute power over all for by a Non Obstante he may dispense with a Statute Law tho' the Statute say such Dispensation shall be meerly void And Judge Barkely to the same purpose A Penal Law is made and a Clause in it Ibid. Ann. 57â— that the King shall not dispense with
Ports The Patronage of all Bishopricks To appoint a Chancellor Treasurer c. and all other Regalities within that Kingdom as fully as Himself or any of His Progenitors ever had them And these Letters Patents 9 R. 2. were authoriz'd by Parliament Assensu Praelatorum Ducum Procerum Communitatis Angliae in Parliamento 4 Inst 357. But what became of it They were Inseparable Regalities and it fell to nothing So 4 years after the King by the same Authority gave the Title of Duke of Acquitaine to His Unkle John of Gaunt and that also came to nothing For that was one of the Titles and Stiles of the Crown and could not be granted All which may be resolv'd into this That a Kingdom without full Regalities is but the burthen of a Night-Mare Men think they have something when in Truth it is nothing but an unweildy weight And as the Crown it self is entire so also ought the Descent to be as entire The same Rich. the 2d devis'd certain Treasure to His Successors upon condition to observe all the Acts c. at a Parliament held the 21. of His Reign 4 Inst 42. and it was held unjust and unlawful because it restrain'd the Liberty of the Kings His Successors And on the same ground is it that the King cannot grant a judicial Office 1 R. 3.4 so as it shall not be void against His Successor Nor priviledge of Sanctuary for Treason 1 H. 7.26 to bind His Successor And the Cessavit before mentioned was good during the King's Life but not against His Successor Nor was it so much the Death of the King that vacated them as that the power of granting them being an inseparable Incident of the Crown that also descended to the Successor together with the Crown To bring this home King Charles the 2d made this Act He had the Entierty of the Crown in Him and might have as well dispenst with it as Queen Eliz. did with Hers of the 1st of Her Reign for the Common Prayer in the English Tongue And if the same Crown be now descended to His Majesty why may not He rather dispense with this Statute as being an Act of His Brother's not His own Or if otherwise how is it the Crown of England Suppose King Charles 2d had given up His Crown as once in His Reign there wanted very little of the asking it would it have bound this King I conceive not Daniel 's Hist of Engl. f. 120. Ibid. 138. Rich. 1st resign'd it to the Emperor King John what in him lay subjected it Hen. the 3d granted to Monfort and his Complices all His Regal Power Ibid. 177. and absolv'd His Subjects of their Obedience ac si in nullo nobis tenerentur if He infring'd the Charter then made them Rich. 2d gave it up And Ed. 6. did what He could to have turn'd it out of the right Channel But what became of all The first and the third broke thro' it in their own time and the right Heirs of the others found it no bar to them and all the Regalities of the Crown came back with it as being impossible it could subsist without them In short the same weight requires the same Shoulders Nor will it be said of Monarchy as of the Sea what it loses in one place it gains in another No That only can wrestle a Fall with Time that keeps it self entire in all its parts For the first diminution is but a step to dissolution as may be seen in Buildings take off any considerable Pillar and the Fabric leans There may 't is true be a kind of Majesty yet remaining in mighty Ruines but Men rarely come near them for fear of being involv'd in them In a word we have a memorable instance of this in our late Murder'd Sovereign King Char. I. He had made more Concessions than might have been thought possible to have been askt but that nothing was impossible for the Men of that time to attempt but when they came to touch that Quick of His Regalities He chose rather to trust Providence with His Kingdoms than save His Life and them with the acceptance of an embas'd Crown or stain His Memory with a Precedent so inglorious Nor can I quit the Argument with a greater authority And therefore to conclude this first part and for the Reasons aforesaid I conceive His Majesty may well dispense with Penal Statutes and more particularly with this Statute POSTSCRIPT WHat has been the common wont to the Reader sutes better with this Matter to give it here and that is The occasion of what I have Written which lies thus His Majesty through the greatest of Difficulties and the repeated but fruitless Attempts of an Exclusion had by the Death of His late Royal Brother King Charles the Second come at last to the Crown nor was it scarce on His Head when a double Rebellion did more than threaten it Upon this The King sole Judge of the danger of the Kingdom and in what manner to avoid it being little other than necessitated either to trust those few He had try'd or those many others that had been for Excluding Him grants Commissions to certain Persons not qualify'd according to the said Statute 25th Car. 2d With a Non Obstante to that Statute This begat some Popular Disputes touching the King's Dispensing Power and those a Desire in me of satisfying my own Judgment and being confirm'd my self I thought it my Duty to strengthen others In short It was Written about Easter 1686 and has but lately come to my Hands again by which means I wanted the advantage of rivetting it with that Solemn Judgment in point in B. R. in the Case of Godwin vers Sir Edw. Hales upon this Statute which was not till the Trinity Term following However finding That so great a Foundation for a further Superstructure I went on with the Argument upon that other Test Act 30. Car. 2d as it severally respects a Peer of the Realm and a Member of the House of Commons and finisht it with this That the King might lawfully dispense with that Statute also But this being out of my Hands and having little to recover it by but some imperfect Notes I thought fit to Publish this First Part for the present with assurance nevertheless of that Second Part to follow it though neither of them had been further thought on but that the same Dust being rais'd anew it was but Charity to keep it from blinding the People FINIS
20th Aug. ' 53. and several the like and every of them with this or the like clause Any Law Statute Custom Usage Act Ordinance and in the matter of the Purchasers of Sir John Stawel's Estate or Judgment to the contrary notwithstanding And Lastly When they had play'd the Game into Oliver's hand was his Instrument of Government set to any other Measures His Ordinances of the 26th Decemb. ' 53. 20th March 53. 16th May ' 54. 2d and 9th June ' 54. and several others carry the same or like Clauses In all which did they not more than imply That the Power of Dispensing was inseparably incident to the Supream Authority in whose hand soever it were Object But may some say we know what they were they had no Right nor could better be expected from them But now we have a Gracious King Sworn to defend the Laws c. Answ Very well But then why do we doubt him in that defence The Law says He can do no wrong and shall we presume he will do it But does there nothing more lie under the Word Sworn For fear there should I give it this further Answer That when the Promise is not annext to the Authority as in the case of a Soveraign Prince but a voluntary condescention that he will ordinarily govern by such a Rule his Estate is not thereby made conditional and tho' he be oblig'd in Honour to the performance yet the Authority ceases not if he fail in it for the People still owing him an absolute Subjection that Prior Subjection cannot be dissolv'd or lessen'd by any Subsequent Act of Grace The King is to all Intents and Purposes 7 co Calvin's Case King before Coronation and consequently without that Oath which he makes at his Coronation Nor does he promise more at that time than he was Morally pre-oblig'd to do it being no other than a Free Royal Promise to discharge that Duty honourably which the Laws of God and Nature had requir'd of him without that Promise To bring the case home Did those Lords and Commons make and vary Laws according to the present condition of their Affairs Had they the patience of untying any Knot their Sword was capable of cutting Shall Men that had not the least face of Right make and unmake break and dispense with so many known Laws to support a Rebellion And shall it be doubted whither a rightful King may pass by one single Law for the preventing or suppressing another Shall it be confest Their Nobles broke the Band of Government their Prophets Prophesy'd falsly their Priestlings Sanctify'd those Ordinances and a foolish People lov'd to have it so And yet be said The King is out of his way when yet he keeps within his own Circle and does no more than what the Law of Reason the Law of the Land as well as his Prerogative warrant him the doing The Matter of this first Test falls properly in I 'll examine it a little and leave every unbia'st Man to his own Judgment wherein nevertheless tho' it may be beyond my skill to make the deaf Adder hear I hope I shall offer some reason yet why he should not hiss SECT V. The Case of the Test 25 Car. 2d stated And that his Majesties granting Commissions to certain Persons not qualify'd according to that Act and retaining them in his Service is warrantable by the Law of Reason and the Laws of this Land c. THe Case upon this Matter will fall to be thus His late Majesty King Charles the 2d in the 25th of his Reign passes an Act of Parliament whereby all Persons not taking the Oaths of Supremacy and Allegiance c. and Subscribing the Declaration therein specify'd after the manner and according to the time by the said Act limited which for brevity Men call the Test shall be ipso facto disabled to hold any Office Civil or Military within the Kingdom of England c. and the said Office void c. Notwithstanding which I conceive and doubt not but to prove That his Majesties granting Commissions to such or such Persons not qualify'd according to the said Act is no more than what is warrantable by the Law of Reason and the Laws of this Land. I shall begin with the Law of Reason and whither we take the Argument Ab Honesto ab utili Or à tuto I conceive every one of them makes for me For 1. What Honour is it to be King of a People that He cannot command What Profit to have useless Persons that take up room but bring no Honey to the Hive Or what safety when instead of an Enemy from abroad He cannot say He is secure at home How must that Prince have behav'd himself where His People fear him not for him What assistance can He expect from them and have no reputation with them Or what common safety to the whole when neither dare trust one another And what must the consequence of this be with the people The People who take nothing by a true Light but as it is foisted on them through false Opticks Veresimile is the same with them as Verum and if it but look like it 't is the same as if it were so It naturally follows That Conflatâ magnâ Invidiâ seu bene Tacitus seu malè gesta premunt having gotten a malicious Opinion by the end let the Prince do well or ill they 'll be sure to traduce him Whereas the Staves of Beauty and Bands go together but where there are Jealousies and Divisions there can be no Honour Profit or Safety to Prince or People The Form of Government is that which actuates and disposes every part and Member to the common good of the whole and as those Parts give Strength and Ornament to that whole so they receive from it again Strength and Protection in their several Stations Whereas if this mutual Interchange of Concord and support be broken it cannot be but the whole must fall in pieces for want of that common Ligament that kept it together From whence I infer That as to restrain his Majesty from making use of any part of his Subjects for the common defence of the whole is a breach of that mutual Interchange so the granting those Commissions being a support of it were for the Honour Profit and Safety of the King and Kingdom and consequently as far as they have any force warrantable 2. The King is bound to defend his Subjects according to the best of his skill and that because Subjection and Protection are Relatives And who now shall be Judge of that skill Himself or the People Who shall order a Battel the General or the Army Who Prescribe the Physician or the Patient Or judge of the Helm the Pilot or the Ships-Crew And is it not stronger on the King's side Soveraignty is a Commission granted by God to the Prince who is the Soul that informs and actuates that incompacted Body the People and whose Office it
no Authority to examine it Take away Knowledge to discern Judgment to weigh and Resolution to determine and what will ye make of a Prince His Majesty foresaw a Storm coming lay close for it and wrought it thro' with Resolution A Hand or two might be enough at Helm but it required many to work the Ship And whom in such a case would a Skipper chuse Such as had stuck to him in former Storms or such as had been for throwing him over-board in a Calm They might have been as handy perhaps or better qualify'd but the Ship was in danger and what talk we of Formalities 2. Object But the King had other hands A Loyal City a trusty Militia c. Answ But is he bound to make use of them in extraordinary Cases Has not that City grown too fast May the King yet March thro' London without leave Or take up Monys upon his Revenue without License I begin now to be of opinion he may and withal hope it shall long continue so Then for the Militia To give them their due they were generally up on the late Western occasion but of no great use what good did their numbers against William the Conquerour's form'd Army Or what 's the reason the Crown of England has so often follow'd the Fortune of a single Battle But that it has been fought by an Uncommanded Multitude who knowing nothing but their own Inclinations believe God is departed from the beaten side and consequently deem it a sin to tempt Providence with a Second I will not say but they may be made more serviceable however till that be what hurt if the King make use of such as are In short as the Subject has his Liberty by the same Laws also has the King his i. e. His Prerogative Nay to imagine the contrary were a Condradiction in Terminis And what better were that Prerogative if restrain'd in the legal use than a Long-wing'd Hawk but ty'd to Fist Shall a Man do nothing without consulting his Wife Or must the King call a Parliament upon every Emergency I think not For Omnis Rex Angliae est solus Rex Stam. pl. cor 99. semper Rex and there are many things he may do of himself without Parliament The power of Peace and War is 9 E. 4.4 and was the King's at Common Law and our later Acts of Parliament are but declaratory of that Ancient Law. He may charge the Subject for defence of the Kingdom without Parliament 13 E. 4.14 And the same did Queen Eliz. in 1588. Grant a Toll upon the erection of a new Fair Market Bridge Ferry Grant Pontage Murage Paveage Rolls Abridg. 2d part 171. c. As there are many ancient Instances of it in the 3d. 7th and 32d of Edw. the 1st It may be said 't is true the Subject here has a Quid pro Quo but what Quid pro Quo is it That the King grants to one or more Subjects to have more priviledge than others That he Erects Cities Corporations Gylds Founds Bishopricks Colleges Hospitals Grants Priviledge to make By-Laws Hold Courts send Burgesses to Parliament no Positive Law that I remember stints the number to two Wales for the most part send but one and London four Is not all this by His Royal Charter And what is it that enables Him to that but His Prerogative which is the antientest part of the Law of the Land and consequently the most Principal Nor is this all The King by His Writ may Ordain alone 9 E. 3.16 A Writ of Cessavit was brought against the Tenants of Northumberland They Petition the King and shew that they had been so harrast by Incursions of the Scots that they could not pay their Rents The King by His Writ Ordain'd a stay of Sute The King before the convenience of Colleges grants to the Scholars of Oxford 49 E. 3.18 That they should have the choice of Inns there This is my Free-hold says the Towns-Man and the King cannot do it But it is the King's Patent said the Judges and in favour of Learning and therefore a good Ordinance Much more to which purpose may be had in the Case of Ship-Mony where because the Arguments are hard to be got by themselves they may be found in the Annals of King Charles the First 3. Object But was not the Judgment for the King in that Case afterwards vacated in Parliament Answ That it was so de facto is true But that the Arguments of Sir Robert Holborn and Mr. St. Johns who argu'd it against the King and of the Judges Hutton and Crooke who had first under-written for the King and afterwards gave their Opinions against what they had so under-written were by that Parliament held for Law is also as true And therefore if I have taken any of their Concessions to prove my point for the King as Eas est ab hoste doceri I know not why it may not be the same Law now And for the rest of the Judges that gave their Opinions for the King according to what they had first underwritten they were accounted Men Eminent in their time and if the Lord Chief Justice Finch a Gentleman in whom Art and Nature concurr'd to make him Eloquent and a long experience dexterous and who had been speaker of the Parliament of 3d. Car. 1. at what time the Petition of Right past may be credited Those first Opinions were so delivered to His Majesty that no one Judge knew the Opinion of the rest or the reason that induc'd His Majesty to demand it And now that I am upon this Matter it is but a Justice due to that King's Memory that I open the History of it The Cards had long shuffling for some plausible Trump whereby to engage the People into a Rebellion None more luckily turn'd up wherein their Properties seem'd to be concern'd than this of Mr. Hambden where the Case lay thus The Dutch in the 9th Car. 1. 1634. had set up the Northern Herring-fishing on our Sea Grotius had put out three or four sheets of Paper which he calls Mare Liberum Mr. Selden learnedly encounter'd him and as fully answer'd it in his Mare Clausum by shewing That before the Romans had ever to do in Britain during their time and ever since the Dominion of the Narrow Seas was the Ancient undoubted Right of the Crown of England Pens were too weak to decide the Matter Mr. Noy finds Precedents of Naval-aids by sole Authority of the King Some few of the Commons except against it as being out of Parliament and against the Petition of Right The first Writ is directed to the Major c. of London to equip seven Ships of War by a day certain sufficiently provided at their own Charges of all things necessary for 26 Weeks From thence Writs are sent into the inland Counties Most pay their proportion which in the whole amounted to but 20000 per Mens thro' England Mr.