custom to the observance of the same not as to the observance of the Laws of any foreign Prince Potentate or Prelate but 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 Upon the same ground it is that learned Hooker says that the lawful Power of making Laws to command whole Politick Societies of Men belongs so properly unto the same entire Societies that for any Prince or Potentate of what kind soever upon Earth I use his very words too to exercise the same of himself and not either by express Commission immediately and personally receiv'd from God or else by Authority derived at first from their consent upon whose persons they impose Laws it is no better than meer Tyranny King James the First in his before-mentioned Speech speaks much the same words Laws therefore says Hooker they are not which Publick Approbation hath not made so Approbation may be declar'd says he either by a personal Assent or by others by a Right deriv'd from them as in Parliaments This hath the more Authority being the Judgment in a Point of Religion not of an Historian or Lawyer but of a Reverend Divine and such an one as hath been so great a Champion for Authority and Government and for exact Conformity to Ecclesiastical Laws Some of our late Writers and Preachers have discours'd quite in another strain The Noble Author I just now cited calls the Laws Condescentions and Voluntary Abatements of the King 's Original Power supposing his Power at first was absolute Now that Preamble of that Statute which I just now read is directly contrary in the very word Original Another a certain Lawyer a Knight in a small but bold Treatise of his will by no means allow of any limitation of Power and holds it absurd to say a Government can be mixed or limited A certain Divine and Geographer in his History of the Life of a late Archbishop declares himself much of the same mind with both these and many others have trod since in their steps I therefore thought it very proper and seasonable to shew the Judgment in these Matters of an eminent Divine too a Person in all respects without exception and his Judgment is concurring with all the ancient Authors in our profession of the Common Law who being so learned and so ancient are therefore the most Competent Witnesses of our English Constitution That ancient Author of ours whose Book is stiled Fleta quia in Cartere Fletae de jure Anglicano conscripsit in the time of King Edward the First as learned Mr. Selden has noted in his Dissertatio ad Fletam c. 10. sect 2 3. This Author L. 1. c. 5. tells us Superiorem non habet Rex in Regno nisi Deum Legem Per Legem factus est Rex temperent Reges potentiam suam per Legem Non quod principi placet Legis habet potestatem Non quicquid de voluntate Regis sed quod magnatum suorum Consilio Regia authoritate prestante habita super hoc deliberatione tractatu recte fuerit diffinitum Bracton who was a Judge in the time of King Henry the Third but wrote his Book in the time of King Henry the Second stiles the Laws of England the ancient Judgments of the Just. And Briton Bishop of Hereford who publish'd his Book 5 Edw. 1. by the Command of that King and as written in the King's Name And Sir Gilbert de Thornton who was a Chief Justice in Edward the First 's time and reduced the Book of Bracton into a Compendium And Sir John Fortescu another Chief Justice and afterwards Chancelor in the time of Henry the Sixth writ all to the same effect and almost totidem verbis These Authors discourse altogether of the Imperia Legum as Livy calls it And Laws thus made by an universal consent must needs be most equal and have a far greater veneration paid them by all sorts of men The best men are but men and are sometimes transported with passion The Laws alone are they that always speak with all persons high or low in one and the same impartial voice The Law knows no favourites Hence it is that Aristotle most significantly and elegantly says That the Law is a Mind without Affection that is it binds all alike and dispences with none the greatest Flies are no more able to break through these Cobwebs than the smaller Imperatoria Majestas Legibus armata est says the Introduction to the Imperial Law These are the surest Arms and Guard about a Prince Baldus the great Lawyer says Digna vox est Majestate Regnantis Legibus alligatum principem se profiteri Sir Edward Cook in his 2 Inst. fol. 27. observes that the Nobility of England have ever had the Laws of England in great reverence as their best Birth-right and so says he have the Kings of England as their principal Royalty belonging to their Crown He there mentions our King Henry the First the Son of him that is stiled Conqueror He wrote to Pope Paschal in this manner Notum habeat sanctitas vestra quod me vivente auxiliante Deo dignitates usus Regni nostri Angliae non imminuentur Et si ego quod absit in tanta me dejectione ponerem Optimates mei totus Angliae populus id nullo modo pateretur And fol. 98. there is mention of the Letters which all the Nobility of England by assent of the Commonalty in the time of Edward the First wrote to Pope Boniface viz. Ad Observationem Defensionem consuetudinum Legum Paternarum ex Debito prestiti Sacramenti astringimur quae manutenebimus toto posse totisque viribus cum Dei auxilio defendemus Nec etiam permittimus aut aliquatenus permittemus tam insolita indebita prejudicialia alias in audita Dominum nostrum Regem etiam si vellet facere seu quomodo libet attemptare Sealed with the several Seals of Arms of 104 Earls and Barons And the Noble King Edward the First took no offence at the stout and resolute penning of this Letter but wrote himself to the Pope to the same effect And yet it contains in it a kind of a Non obstante to what the King should do by way of submission and compliance with the Pope Nor is a Just Law any restraint to a Just Liberty it rather frees us from a Captivity and Servitude viz. to that of our Wills and Passions It is true this obligation and binding of the Law is very uneasie to such Men as will be slaves to their Lusts and Appetites They cry out let us break these Bonds asunder and cast away these Cords from us but to such as are virtuous and just and pious the Laws are a Direction and Protection The Orator truly says Legum id circo omnes servi sumus ut liberi esse possimus The true English of
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.
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
in Hill. 11 Jac. B. R. Dominus Rex and Allen against Tooly in the Second Part of Bulstrode's Reports 186 to 191. in an Information brought upon the Statute of 5 Eliz. for using the Trade of an Upholsterer in which he had not served as an Apprentice Seven Years The Defendant pleaded That he was a Freeman of London and that by the Custom of London a Freeman might use any Trade and he alledged that the Custom was confirmed per Regem in Parliamento It was holden first that there can be no good Act of Parliament without the three Consents viz. Of the King Lords and Commons 2. That tho' divers Acts of Parliament do not specifie these Three Assents but only mention the King as Dominus Rex Statuit and as it is in the Prince's Case Dominus Rex de Communi Concilio Statuit and the like Yet when the Party will Plead he ought to Plead it according to Law and to set forth all the Assents that is of the King Lords and Commons and this was the Opinion of the whole Court. Now Pleading is an exact setting forth of the Truth We are not to raise Arguments from Forms of Speaking but rather from exact Pleading and the Resolutions of Judges And tho' Magna Charta in the stile seems to be spoken by K. H. 3. as by the word concessimus yet the Act of 15 E. 3. c. 1. recites that it was made a Law by the King Lords and Commons and that what is said to be granted was but their former Right Lambert's Archion 267 c. I hear that in speaking to the Case of Sir Edward Hales it was observed that by this Act of 25 Car. 2. there is no incapacity or disability at the first and upon the admission to the Office put upon any Person from taking of an Office but that he is well admitted to it and the Grant is good and that time is given to take the Tests and if by the times given he fail to take them then he is to be disabled and the Grants are to become void but not before Like a Condition subsequent that defeats the Estate which yet was well vested and then before the Grant is defeated and the Party become disabled the King's Dispensation steps in and prevents the Penalty and Disability And herein it was said it differs from the Case of Symony and buying of Offices where the Interest never vested but the Person was first disabled There is indeed a difference but none that is material for it is all one whether the Party be disabled to take or whether having well taken and been well admitted he is afterward disabled to hold and retain by not performing the Condition For when he is first admitted it is sub modo and under a Condition that if he fail to perform what the Law requires his Office shall be void Another Argument as I hear it reported was rais'd from the King 's being a Soveraign Prince and from thence it was inferred that he might dispense with Laws that are Poenal upon necessity whereof he is the sole Judge The ground of this Argument namely That the King is a Soveraign Prince if it serve for the Point in question it may also extend a great way further then to this question we have before us it is hard to limit the extent of it it seems to speak that we must obey without Reserve The word Soveraign is French and in Latin is Supremus id est qui in alios potestatem habet The Correlate whereof is Subditus or a Subject and is attributed frequently to some sorts of Subjects especially to the Heads or Superiours of Religious Orders But among us tho' now frequently used in our humble Addresses to the King or in our reverend mention of him yet we find it very rarely if ever used in our ancient Acts of Parliament or in our Law Books I find no mention of the very word among the many Attributes and Titles ascribed to Kings and Princes in Mr. Selden's Titles of Honour He hath that which is Synonimous as Supream Monarch as it signifies in opposition or in distinction to Princes that are subordinate and feudatory such as Tacitus speaks of that the Romans when their Government was Popular had instrumenta servitutis Reges But properly he is a King that is a Soveraign and hath no Superiour upon Earth According to Martial Rex est qui Regem Maxime non habeat And such we freely and cheerfully acknowledge the King to be and the best and most of his Subjects do swear that he is the only Supream Governour of this Realm and of all other his Dominions as well in all Spiritual or Ecclesiastical as Temporal Causes and that no Foreign Prince hath any Power within this Realm And I wish that all the rest of his Subjects would heartily take this Oath but this among others is that which Sir Hales's Dispensation extends to Yet how from hence it can be argued that the King can dispense with his Laws I do not see I mean Laws of the same nature as that we have now before us Therefore those that used this Argument surely meant the word of Soveraign in another sence viz. Absolute Solutus a legibus It they mean by Soveraign a Prince that is absolute and solutus a legibus and they must understand it so or else I do not see how it is pertinent to the present Argument this is of a mighty Consequence and ought to have been well considered before it had been used I find the word in this sence as I take it propounded in an addition or saving to the Petition of Right 3 Car. 1. viz. Not to infringe Soveraign Power But it was not liked and upon Reasons given at a Conserence those that did propound it were satisfied to lay it aside It may be read in the Memorials of the English Affairs fol. 10. If the word Soveraign be meant in this sence it is oppos'd by all our ancient Authors Judges and others by plain and express Language whose very Writings I have before cited and I will but only touch upon them again Fleta says Superiorem non habet Rex in Regno nisi Deum Legem per Legem factus est Rex This fully expounds the word Sovereign Both Fleta and Bract. and Sir Gilbert Thornton who was Chief Justice in Edw. the First 's time take notice of that Jus Caesareum or Lex Regia as it is called by the Civilians Nec obstat quod dicitur quod Principi placet Legis habet vigorem For it never was received in England but in a restrained sence And with this agrees the ancient Coronation Oath That the King shall hold the Laws and Customs of the Realm which the People have chosen But King H. 8. with his own hand corrected the old Oath to the effect following viz. That he shall hold the Laws and Customs of the Realm not prejudicial
and where it is a collateral Suit not depending upon that Record An Action against the Sheriff for an Escape of one taken in Execution this is a dependant Action and is grounded upon the Record of the Judgment given against the Party that escap'd The Sheriff cannot aver any thing against that Record and examine it over again nor can he take any advantage of Error or erroneous proceeding in obtaining that Judgment Saunders Rep. 2 part 101. So in an Action of Debt grounded upon a Judgment or in an Audita quaerela to be reliev'd upon a Judgment And so in our Case this Action of Debt for the 500 l. is grounded upon the Conviction which must stand for truth as long as it remains in force not avoided by Error or Attaint A Writ of Error to reverse a Judgment is a dependant Action In error the Plaintiff may not averr any thing against the Record Mullens versus Weldy Siderfin's 1st part 94. Error was sued in the Kings-Bench to reverse a Judgment given in the Palace-Court And the Plaintiff in Error assign'd for Error that the Duke of Ormond who is principal Judge of that Court by Patent was not there It was agreed by the Court that it might not be assign'd for Error for it was contrary to the Record But per Cur. in an Action of Trespass or false Imprisonment which says that Report are collateral Actions he may falsifie and assign that if he be taken upon such Judgment So if a man be indicted and convict of an Assault and Battery and afterwards the person so assaulted brings his Action for the Battery this hath no dependance upon the Indictment or Conviction for it may be sued though there were no Indictment but is a distinct and collateral Suit. The Indictment and Verdict is no Estoppel nor can so much as be given in Evidence as is held by the whole Court in the Case of Sampson versus Yardley and Tothill 19 Car. 2. B. R. Kebles's 2 part 384. The like in an Appeal of Murder Kebele's 2 part 223. Another Penalty upon the Offender against this Statute of 25 Car. 2. is That he shall be disabled to sue in any Action Now suppose a person convict at the Assizes sues an Action may not the Defendant in that Action take the advantage of that Disability and plead the Conviction As in Case of an Outlawry pleaded in Disability there need not be set forth all the proceedings in that Suit wherein the Plaintiff was outlawed but he may plead the Record of the Outlawry and rely upon it and it shall not be examin'd whether there was any just cause to sue him to the Outlawry or not The Indictment the Defendant's Plea to it and the Verdict upon it have determin'd the matter of Fact that the Defendant is guilty of the Offence against this Act of Parliament The Act it self hath pronounc'd the Judgment which consists of many particulars one whereof is That the Defendant shall forfest 500 l. to him that will sue for it And the Action of Debt for the 500 l. brought by the Plaintiff grounded upon all these is in the nature of an Execution And all these put together are not several and distinct Suits but in effect all but one Suit and Process one depending upon the other The second Point is Whether the Dispensation pleaded by the Defendant be a good Bar to the Action of Debt And this is properly called The Matter in Law and the great Point of the Case for which I refer the Reader to my Argument at large POSTSCRIPT BEING SOME Animadversions UPON A Book writ by Sir EDW. HERBERT Lord Chief Justice of the Common Pleas ENTITULED A short Account of the Authorities in Law upon which Judgment was given in Sir Hales's Case SINCE the finishing of my Argument about the Power of Dispensing with Paenal Statutes a Book came to my hands touching the same subject entituled A short Account of the Authorities in Law upon which Judgment was given in Sir Edward Hales his Case written by Sir Edward Herbert Chief Justice of the Common Pleas in vindication of himself And although I am of opinion that the substance of all the Arguments contained in the said Book are fully answered in my aforesaid Discourse yet I hold it necessary to make some Animadversions upon the said Book and to point out readily to the Reader the several Pages of my Discourse wherein the Arguments of the Chief Justice are more directly and particularly treated of and answered And there being great Reverence justly due to a Person that bears so high a Character as also to a Judgment given in that Superiour Court of the King's Bench and by advice of all but two of the rest of the Judges as I now hear some short Apology had need be used for that freedom I have taken to animadvert upon it being as I am but in a private station In short therefore I have not undertaken it out of any vain conceit of my own Abilities but out of a sincere desire to inform such as in the approaching Parliament are like to have this great Case in Judgment before them and some may possibly not be at leisure as I have been to study the Case the matter being of a mighty importance Nor have I entred the Lists upon any contentious humour or taking any advantage of the late Happy Change of publick Affairs I am I thank God more inclin'd to commiserate the Distress that may befal any persons by the change of the times it having been my own case so lately although they differ from me in Judgment or Interest I am very far from insulting over any whatever hard usage I my self have met with Nemo confidat nimiûm secundis Nemo desperet meliora lapsus My Apology is this 1. I was engaged in the Argument before the coming forth of this Book and it happening into my hands before my publishing of my Discourse I could not decline the observing something upon it without being suspected to have given up the Cause 2. The Lord Chief Justice himself hath by his Book given fresh occasion fairly to discuss the point again by declaring that he expects as we all do that it will receive a disquisition in Parliament 3. And as the Chief Justice hath endeavour'd with as much as can be said to give the World satisfaction in the justice and right of the Case to maintain the Judgment given so he is well known to be of that ingenuity and good temper and candour as willing to receive a satisfaction if any further Argument to the contrary may be so happy as to convince him The Chief Justice Herbert pag. 6. gives us the Definition of a Dispensation out of Sir Coke's 11th Report fol. 88. viz. Dispensatio mali prohibiti est de jure Domino Regi concessa propter impossibilitatem praevidendi de omnibus particularibus And again Dispensatio est mali prohibiti provida relaxacio utilitate ceu
necessitate pensata Upon the word Concessa I would gladly be satisfy'd when or by whom that Power was ever granted to the King where shall we find that Grant It is clear that whoever hath the entire Power of making a Law may justly dispense with that Law. And therefore Almighty God being the sole and supream Law-giver might dispense even with the Moral Law as he did with the sixth Commandment when he commanded Abraham to sacrifice his Son Isaac and with the eighth Commandment when he commanded the Israelites to borrow the Jewels of the Aegyptians and to go away without restoring of them But it stands not with reason that he who hath but a share with others in the making of a Law as the King hath no more should have the power by himself alone to dispense with the Law unless that power were expresly intrusted with him by the rest of the Law-makers as sometimes hath been done Sir Edward Coke in his seventh Report in the Case of Paenal Statates fol. 36. towards the lower end does affirm that this Dispensing Power is committed to the King By All his Subiects So that it is not claimed Jure Divino but by Grant from the People But where to find any such Grant we know not I have as I conceive made it appear in my larger Argument p. 14. that the first Invention of Dispensations with Laws began by the Pope about the time of Innocent the Third and by our King Henry the Third in imitation and by encouragement from the Pope so that it was not by the Grant of the People but ever exclaimed against by all good men and generally by all the people and ever fenced against by a multitude of Acts of Parliament It is true the Dispensing with Laws hath ever since been practised and they began at first here in England to be used only in Cases where the King alone was concern'd in Statutes made for his own profit wherein he might have done what he pleas'd But it is but of latter times that they have been stretched to Cases that concern the whole Realm See my Argument fol. 13. Hence it evidently appears it cannot be a legal Prerogative in the King for that must ever be by Prescription and restrain'd to those Cases that have been used time immemorial and must not be extended to new Cases Now there hath been no such usage as will warrant the Dispensing with such an Act of Parliament as is now before us that of 25 Car. 2. c. 2. The Chief Justice Herbert from the Definition before recited and those two Authorities of Sir Edward Coke in his Case of Monopolies and that other of Penal Statutes frames an Argument to prove that the Dispensation granted to Sir Edward Hales was good in Law. Because a Dispensation is properly and only in case of a Malum Prohibitum he thence insers that the King can dispense in all Cases of Mala Prohibita Which is a wrong Inference and that which Logicians call Fallacia à dicto secundum quid ad dictum simpliciter Because he can dispense with some that therefore he can dispense with all is no good Consequence It appears by the late Chief Justice Vaughan's Reports in the Case of Thomas and Sorrel so often cited by the Chief Justice Vaughan's Rep. fol. 333. the fourth Paragraph that his Opinion is That the King cannot dispense with every Malum Prohibitum and he gives many Instances of such Mala Prohibita that are not dispensable fol. 342 and 334. parag 4. Therefore the Lord Chief Justice Herbert should as I conceive regularly first have given us the distinction of Mala Prohibita into such as are dispensable and such as are not dispensable and then have shewn that the Dispensation granted to Sir Edward Hales fell under the first part but that learned Reporter the chief Justice Vaughan so often cited by our now Lord Chief Justice in the aforesaid Case of Thomas and Sorrell fol. 332. the last Paragraph save one quarrels with the very distinction of Malum Prohibitum and Malum in se and says it is confounding From whence I would observe and from the whole Report in Thomas and and Sorrell's Case that the Notion of Dispensation is as yet but crude and undigested and not fully shaped and formed by the Judges The Pope was the Inventer of it Our Kings have borrowed it from them And the Judges from time to time have nursed and dressed it up and given it countenance And it is still upon the growth and encroaching till it hath almost subverted all Law and made the Regal Power Absolute if not Dissolute I must agree that our Books of late have run much upon a Distinction viz. Where the breach of a Penal Statute is to the particular damage of any person for which such person may have his Action against the Breaker of that Law there tho' it be but Malum Prohibitum yet the King cannot dispense with that Penal Law according to the Rule in Bracton Rex non potest gratiam facere cum injuriâ damno alterius As for instance There are several Statutes that prohibit one man from maintaining another's Suit though in a just Cause See Poulton de pace Regis Regni in his Chapt. of Maintenance fol. 55. Now it is held that the King cannot dispense with those Laws because it would be to the prejudice and damage of that particular person against whom the Suit is so maintain'd by another for there can be no maintenance but it is to the wrong of a particular person So of carrying a Distress out of the Hundred But there are many other Penal Laws where by the transgressing of them no Subject can have any particular damage and therefore no particular Action for the breach of them As upon the Statute that prohibits the Transportation of Wool under a Penalty By the breach of this Law that is by the Exportation of Wool no one particular man hath any damage more than every other man hath but it is only against the Publick Good. And the breach of such a Penal Law is punishable only at the King's Suit by Indictment or Presentment And the like where such a Penal Statute gives an Action Popular to him that will sue for the Penalty who hath no right to it more than any other till his Suit be commenced In these Cases it is commonly held that the King may dispense with such Penal Statutes as to some particular persons and for some limitted time whereof they make the King the sole Judge because as the reason is given in the Chief Justice Vaughan's Reports fol. 344. parag 2. Such offence wrongs none but the King. This is now the common receiv'd Opinion and Distinction And the breach of such kind of Penal Statutes are said to be only the King's damage in his publick capacity as Supream Governour and wronging none but himself Lord Vaugh. Rep. 342. parag 3. But if we will narrowly search into this
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
So also as the Commons may disagree thereunto at the next Parliament with this Protestation too that this their Assent being indeed a Novelty these are the very words be taken for no example This is granted with abundance of caution and jealousie and proves it is not ancient The Commons do agree to the Power granted to the King for the Moderation of the Statutes touching Provisors in the last Parliament beseeching the King that the same may not license any Cardinal or Stranger to enjoy any Benefice within the Realm It was enacted by the Lords and Commons that Tydeman late Abbot of Beaulew and Elect of Landaf by the Pope's provision should enjoy the same Bishoprick notwithstanding any Act so always as this be taken for no example That the sale of Tin may be at Lostwithiel in Cornwal and shall not continue at Calais Notwithstanding the Council may grant License to Merchants to carry the same Tin to what parts they will as to them shall seem good Here the Power of Dispensing is delegated to the Council Upon the request of the Commons the King promiseth that he will not from thenceforth dispence with the Statute of Provisions to Benefices This implies that the King had practis'd it and we know who began the practice and who taught it to others and this Record shews it was without consent and was a cause of complaint and the King promises to reform it for the future But what signifies a Promise where a Law and an Oath is too weak to secure it this Promise doth not confer a new Right but is to reform an unjust Practice I shall use one Argument more against this exercise of the Power of Dispensing with Acts of Parliament as it hath of late been practis'd and that Argument shall be rais'd from the great Inconvenience and Mischief that will ensue upon it to the Kingdom it may occasion the infrequency of Parliaments by taking much of their power out of their hands Laws are many times made but probationers and temporary to the end that if upon experience of them they be found to be too severe or strict and to sit hard upon any persons that the Parliament at their next meeting may moderate or relax the severity or inconvenience that may arise by them But if there be another way allowed for the doing of this Work there will be the less need of a Parliament and so other Work that requires also their meeting may remain unremedied If we consider how frequently the Parliament ought to meet and and how often they did anciently meet we shall easily be convinc'd that the relaxing of a Law or giving remedy where the Law was upon experience found inconvenient was a work properly belonging unto them and there was no need of resorting to any other help for who should cure or reform a Law if any thing were amiss in it but the Law-makers See the Statute of 6 H. 8. c. 18. the Book of Statutes at large concerning Bristol Our Saxon King Alfred and his Wise Men that is the great Council of the Kingdom ordained that a Parliament twice a Year and oftner in time of Peace should meet in London Thus says that ancient Book stiled The Mirrour of Justices c. 1. sect 3. pag. 10. by 4 E. 3. c. 14. It is accorded that a Parliament shall be holden every Year once or more often if need be this does not abrogate not alter King Alfred's Law. By 36 E. 3. c. 10. many Laws had passed in that Parliament of 36 E. 3. which are there called Articles as anciently our Statutes were drawn into certain Articles and so passed as being Articles of Agreement betwixt the King and his Subjects as I had occasion to observe in the beginning of my Discourse and this Statute of 36 E. 3. provides that for maintenance of the said Articles and Statutes and redress of divers Mischiefs and Grievances which daily happen a Parliament shall be holden every Year as another time was ordained by a Statute referring to the Statute of the Fourth of this King. The Act of 16 Car. 2. c. 1. for repeal of the Triennial Act made 16 Car. 1. in the last Paragraph recites that by the ancient Laws and Statutes of this Realm made in the Reign of King Edward the Third Parliaments are to be held very often and this Act of 16 Car. 2. makes a new provision to the end as the words are there may be a frequent calling assembling and holding of Parliaments once in three Years at the least Now let us enquire what the proper Work of a Parliament is which the said Statute of 36 E. 3. mentions in part viz. for maintenance of the Articles and Statutes and redress of Mischiefs and Grievances that daily happen as that Statute recites Sir Tho. Smith who was principal Secretary of State in his Treatise de Republica Administratione Anglorum L. 2. c. 2. fol. 50 51. says this of the Parliament In Comitiis Parliamentariis posita est omnis augustae Absolutaeque potestat is vis veteres leges jubent esse irritas novas inducunt praesentibus modum constituunt There is the true dispensing power Incerti juris controversias Dirimunt Bracton writes of this High Court Habet Rex Curiam suam in concilio suo in Parliamentis suis ubi terminatoe sunt dubitationes Judiciorum novis injuriis emersis nova constituuntur remedia The Mirrour of Justices c. 1. pag. 9. says that Parliaments were instituted to hear and determine the Complaints of the wrongful Acts of those against whom the Subject otherwise could not have common Justice that is against great and powerful Delinquents Nihil prodest says Bracton Jura concedere nisi sit qui Jura tueatur So that there is need of a frequent resort to be had to the Law-mamakers not only to resolve difficulties of Judgments but to keep the power of Interpretation within its due bounds and the Law hath taken care for frequency of Parliaments Sir Francis Bacon in his Advancement of Learning gives this excellent Advice to Law-makers and to those to whom it belongs to defend the Laws Let not says he Praetorian Courts speaking of Courts of Equity have power to decree against express Statutes under pretence of Equity for says he if this should be permitted a Law interpreter that is a Judge would become a Law-maker and all Matters should depend upon Arbitrament that is upon an Arbitrary Power And Arbitrament would encroach upon and at last swallow up Law. The power of extending or supplying or moderating Laws little differs says he from the power of making them Courts of Equity sometimes under the pretence of mitigating the Rigor of the Laws and such is the Power of Dispensing relax the Strength and Sinews of Laws by drawing all to Arbitraments he was well able to judge of this having been Lord Chancelor And it is his 46th Aphorism That is the best Law which gives the least
of this Prerogative and Power of dispensing with a disability impos'd by Act of Parliament for I do not purposely dispute it in any other Case but as they are coincident with this The first that we meet with is that of 2 H. 7. fol. 6. and it was by all the Justices in the Exchequer-Chamber The Case thus King Edward the Fourth granted the Office of Sheriff of a County to the Earl of Northumberland for the Life of the Earl and the Justices held the Patent good there being a Non Obstante in it to the Statutes Let us look into the Statutes that forbid a Sheriff to continue in his Office longer then one Year There had been several ancient Statutes made to that purpose but they all prov'd to be of little effect for Patents were still granted to hold the Office of a Sheriff for a longer time than one Year At length came the Stat. 23. H. 6. c. 8. which recites the former Statutes forbidding any Persons continuance in the Office of Sheriff above one Year and observing the great Oppressions and Abuses to the People that did arise from it and how that yet they were granted contrary to those Statutes This Statute therefore of 23 Hen. 6. ordains that those Statutes shall be duly observ'd And further ordains That if any occupy that Office contrary to those Statutes or to the effect or intent of any of them he shall forfeit two hundred Pound yearly as long as he occupieth contrary to any of those Statutes and that every Pardon granted of that Forfeiture shall be void and that all Patents made of the Office of Sheriff for Years or any longer time shall be void any Clause or word of Non Obstante in any wise put or to be put in such Patents notwithstanding and every such Person is thereby disabled to bear that Office. Nothing could be penn'd stronger than this Statute and it is a Law made by the Supream Legislative Power of the Nation and it expresses the former granting of Non Obstante's to be a great abuse and to be contrary to Law. Yet contrary to the express words and clear intent and meaning of this Statute did all the Judges resolve in 2 H. 7. That by a Non Obstante a Patent for a longer time than a Year should be good of the Sheriffs Office. The King and both Houses were of Opinion that they could make a Non Obstante in such Case void The Judges are of a contrary Opinion that a Non Obstante shall make void the Statute Here is an Inferiour Court over-ruling and controuling the Judgment of a Superiour Court. The Judges who are but Jura dicere contradict those who have the Power Jura dare as well as Jura dicere and of Correcting the Errors of the highest Court in Westminster and controuling their Judgments The Statute was a meer idle nugatory thing if it were not to restrain the granting of a Non Obstante if it did not that it did nothing The King himself alone if he had pleas'd could without any Act of Parliament have reform'd the Abuse by refusing to pass any such Patents for a Sheriffs continuing in his Office longer than a Year But the King was sensible of the Abuses and therefore willing to be restrained from passing any more such Patents and to avoid any importunity that might be used for the obtaining any such Patents and therefore consented that a Law should pass to make such Patents void And after all shall the King if he pleases still make the like Grants Why then the Act was of no manner of use and operates nothing and the Resolve of the Judges has made the Act a meer idle vain thing But the twelve Judges in 2 H. 7. have so resolv'd and the only use they would allow to all these Acts of Parliament is no more than this that if the King grant a Patent to one of the Sheriffs Office for more than one Year and there be no Non obstante in the Patent that then for want of a Non obstante the Patent should be void by those Acts of Parliament which otherwise would have been good had not those Acts made them void But how easie would it be for one that obtains such a Patent to get the Non obstante to be inserted and who would accept such a Patent without a Non obstante and to whom would the Non obstante be denied to whom such a Patent is granted the Lord Hobart in the Case of Needler against the Bishop of Winchester fol. 230. says it is denied to none and that it is in the power of the Attorney-General The Reasons given by the Judges in 2 H. 7. for that resolution are because the King had always used such a Prerogative of dispensing with the Acts of Parliament that required the true value of the Lands and the certainty of the Lands to be mentioned in his Grants of Lands and with the Acts concerning the shipping of Wool and pardoning of Murder without express mentioning of the Murder These Cases are nothing alike but of a trifling consideration in respect of the Act we have in hand of 25 Car. 2. And in these Cases the Penalty and Forfeitures are given to the King and they concern the King's profit only to dispence with them but in our Case the Safety of the Government salus populi and the maintaining of the true Religion establish'd by Law are all concern'd and so the Case is not alike And to compare this with those Cases is parvis componere magna This Opinion and Resolution of the Judges in 2 H. 7. has been the Foundation of all the like Opinions that have since that time been given of the King's Power of Dispensing with Disabilities and Incapacities impos'd by Acts of Parliament Upon what ground the Justices held the Patent of the Sheriff's Office good to the Earl of Northumberland for Life does not appear whether because it had formerly been an Office of Inheritance and so within the Exception in the Statute of 23 H. 6. or whether by virtue of a Non obstante to the Statutes as Ratclif only argues for the rest say nothing of the Non obstante Some Resolutions have been to the contrary of that of 2 H. 7. as in the Case that I cited of the King against the Bishop of Norwich in the Lord Hobart's Reports and the Case of Sir Arthur Ingram where it was adjudged that the King could not dispence with a Disability And the Book of 2 R. 3. fol. 11 12. concerning Waterford in Ireland is of the King's Power to dispence with an Act of Parliament where the Forfeiture is given only to the King so it comes not home to our Case This Resolution of the Judges in 2 H. 7. was the Precedent and leading Case to all the subsequent Opinions and was the Foundation of them and they all must stand and fall by it Now it will be very
to his Crown or Imperial Jurisdiction The Original of this Correction is in Sir Cotton's Library See the History of the Reformation Sir John Fortescu sometime Chief Justice and afterwards Lord Chancellor in his Book De Laudibus Legum Angliae The Civil Law says he runs thus Quod Principi placuit legis vigorem habet sed longe aliter potest Rex politice imperans quia nec Leges sine subditorum assensu mutari poterit Potestas regia Lege Politica cohibetur Sir Edward Coke in his 12 Rep. fol. 63 64 and 65. says It was greatly marvell'd that the Archbishop Bancroft durst inform K. James that such absolute Power and Authority as is there mentioned belong'd to the King by the Word of God and there Sir E. C. cites the Sayings of these ancient Authors in our Law But he says that the King was greatly offended with him A Learned Civilian gives some restraint even to the Lex Regia in this point Vinius in his Comment upon the Instit. fol. 381 Populus Romanus jura Majestatis omnia abdicative in principem transtulit hinc Principes Romani Legibus soluti fuerant But he utterly opposes that Opinion of the School-men Principem Legibus solutum esse quoad vim coactivam sed etiam quoad vim directivam Rot. Parl. 11. R. 2. The King and Parliament declare That the Realm of England never was nor was it intended by the King and Lords that ever it should be governed by the Civil Law. In the deciding of the Great and Royal Controversie in the time of K. E. 1. concerning Right of Succession in the Crown of Scotland it was debated by the Commissioners according to what Law that Case should be determined whether by the Law of England or of Scotland by the Civil Law as being the Jus gentium before the King of England as being the Superior Lord they all at last concluded That the Civil Law by no means should be admitted Ne inde Majestatis Anglicanae Juri fieret detrimentum Seld. dissertatio ad Fletam 539. Mr. Selden mentioning John of Salisbury who said that in his time there were those that did prefer the Civil Law before all other Laws especially that de absoluta principis potestate quae in lege habetur Regia he says it was meant of none but de assentatoribus illius saeculi exgenere Hieratico non de gente Anglicana aut de aliis qui Judiciis tunc praefuere It would have been far from any of the English Nation especially from any of the Judges to have maintained any such Opinion But let it be understood sano sensu and in a proper and literal sence too and it is very true and agreeable to our Law quod Regi placuit legis vigorem habet without the King 's Placet and his Royal Consent nothing is Law amongst us The Laws already in force have had the Consent of his Predecessors and no new Law can pass without the Royal Assent nay they are his Royal Words Le Roy le veut that first gives life to any new Law. And the Judges Oath in the time of H. 3. was that they should judge Secundum Legem consuetudinem regni which words as Mr. Selden there says seem designedly to Exclude the Jus Caesareum then lately brought in whereof as he says some were fond in those times and he tells us of what Order they were but they were not Common Lawyers nor Judges but the Hierarchy But should Judges give countenance to any such Law in the Latitude of it they should be put in mind of what was done by King Edward the Confessor which we are taught by Sir Roger Twisden in his Preface to the Laws of William the First annexed to Mr. Lambert's Treatise De priscis Anglor ' Legibus fol. 155. Omnes says he qui Leges iniquas adinvenerant injusta Judicia judicaverant multaque concilia contra Anglos dederant exlegavit such Enemies to the Laws of England should be put out of the Protection of the Laws of England Rode caper Vitem c. It is said amongst the Laws of King Henry the First c. 28. and it is in the very Body of that Law Lambert ibid. 186. Gravius Lacerantur pauperes à pravis Judicibus quam à cruentis hostibus The Lords of Parliament when any attempt is made to introduce the Caesarean Law as once in the time of our K. H. 3. there was an endeavour to bring in part of the Pontifician Law and it was by the Bishops I make no doubt but they will answer Una voce as their Ancestors then did Nolumus Leges Angliae mutare quae hucusque usitatae sunt approbatae The Statute of Merton c. 9. 2 Instit. fol. 96. The Act of 25 Car. 2. one of the principal Ends and Aims of it is to keep out that Foreign Power that would pretend to a Soveraignty or Supremacy over our Soveraign but the Dispensing with this Law which is maintained to be a Right incident to the Soveraign Prince seems to be the likeliest way of setting up again that Pretence and Claim of a Foreign Bishop which was so long usurp'd and against which Pretence so many Acts of Parliament have been made and which our ancient Kings did of old utterly renounce and disclaim and we know the same Foreign Bishop hath made another Pretence to England besides that Ecclesiastical Power by colour of a Resignation made by King John. But King Hen. 3. Son and next Successor to King John in the General Council at Lyons Anno 1245. by his Embassador and Advocate made a Special Protestation against that pretended Resignation made to Pandolphus the Pope's Legate Innocent the Third as a meer Nullity In quod nunquam consensit Regni Universitas and afterwards upon the Pope's issuing out of Process against K. E. 3. and the whole Kingdom for the Homage and the Arrears of the 1000 Marks Rent due to him The Parliament declared That King John nor no other could put himself or his Realm into such a subjection without their consent And that it was against the Oath King John had taken at his Coronation This Record expounds the word Sovereignty in the true sence of it namely that our Sovereign is no way subject to the Bishop of Rome or to any Foreign Power But it doth no way import that the King can dispose of his People ut placuit Regi or alter the Government without the Peoples consent nor dispence with his Coronation-Oath but proves the quite contrary A Short Argument UPON THE PLEADINGS Of the aforementioned CASE of Sir EDW. HALES THE first Point argued by the Plaintiff's Councel was That it appears by the Declaration and it is now confess'd by the Defendant's joyning Demurrer that the Defendant hath been Indicted for this Offence in exercising the Office of a Colonel without having taken the Tests And upon the Indictment he either did plead this Dispensation or might have