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
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
says that Historian Multis adjectis durissimus Conditionibus and amongst other per illud verbum adjectionem detestabilem Non obstante quae Omnem Extinguit Justiciam In another Bull he requires the payment of a Sum of Mony from the English Clergy Quocunque Privilegio seu Indulgentia Non obstante Licet presentes expressam de ipsis non faciant Menconem This very Phrase is grown most familiar in Letters-Patents with us and we see from whence it hath been borrowed That Temporal Princes at that time did not practise the like does evidently appear not only by their frequent Complaint of them but the Historian tells us It was then grievously feared that the Kings and Great Men would in time be infected with the ill Example of the Pope his words are Quod multi formidabant vehementer Ne Principes Laici Seculares exemplo Papae Edocti Non obstante talis vel talis Chartae tenore would revoke their Concessions too Therefore as yet it was not in practice by Temporal Princes no not in Letters-Patents much less in Laws I shall give one instance wherein we shall find the Pope teaching this very Lesson to the King of England K. H. the 3d and instructing him as his Schollar to write after his Copy King H. the Third had made several Grants to his Subjects Bishops Noblemen and others and had oblig'd himself by Oath never to revoke them Pope Gregory the Ninth by his Bull which Mr. Prin who had the keeping of the Records in the Tower says he found in the White Tower under Seal the Pope commands the King to revoke these Grants Juramento Instrument is predictis nequaquam obstantibus King Henry the Third was easily taught this Lesson and did soon put it in practice and being reprov'd by some about him for using of Non Obstante's the King justified himself by the Example the Pope had given him Nonne Papa says he facit similiter subjungens in Literis suis manifeste Non Obstante aliquo Privilegio vel indulgentia But as yet it was not exercised as to Acts of Parliament till a long time after What sad Apprehensions it rais'd in good Men may appear by an Example or two When one of these Patents with a Non Obstante in it was produc'd in the Courts of Westminster one Roger de Thurkeby who was a Judge of the Court of Common Pleas in the time of King Henry the Third upon the hearing of it says the Historian Ab alto ducens suspiria he fetcht a deep sigh and De predictae adjectionis appositione That is concerning this Clause or Addition of Non Obstante Dixit heu heu hos ut quid dies expectavimus ecce jam Civilis Curia exemplo Ecclesiasticae Coinquinatur a Sulphureo fonte Rivulus intoxicatur This plainly shews the time when the use of them was first introduced into England in Civil and Temporal Cases they were not used before the time of King Henry the Third which is not ancient enough to make a Prescription by the Rules of our Law and we see from whence they learnt it I shall now cite the Judgment of a Famous and Learned Bishop of those times concerning these Non Obstante's that of Robert Grostest or Great-head who per excellentiam was generally stil'd no more but Lincolniensis in the Book of his that is Entituled De Cessatione Legalium Publish'd by the late Dean of Windsor Dr. Reeves There are some Testimonies given of the Bishop out of Authors in the beginning of that Book Among others it is remembred of him that he sent a smart Epistle to the then Pope wherein he does cry out upon the Pope for that the Pope's Bulls did superaccumulate as he terms it the words Non Obstante which words says that good Bishop of Lincoln did Christianae Religionis puritatem hominum tranquillitatem perturbare And he does thereupon affirm the Pope to be Antichrist Nonne says he Antichristus merito dicendus est And to prove him to be Antichrist he further charges him Privilegia Sanctorum Pontificum Romanorum praedecessorum suorum Papa impudentur annullare per hoc Repagulum Non Obstante non erubescit sic diruit Reprobat quod tanti tot Sancti aedificarunt When Innocent the Fourth read this Bishop's Letter he fell a swearing by Peter and Paul that he would Confound him In tantam confusionem praecipitaret ut totius mundi fabula foret stupor prodigium And that he would command the King of England whom he there insolently term'd Noster Vasallus a Tenant or Vavasor Et ut plus dicam Mancipium his Property illum nutu nostro in carcerare But the Cardinals then about the Pope advised him to consider better of it for said they Ut vera fateamur vera sunt quae dicit Catholicus est imo Sanctissimus Of this Bishop says Mr. Camden in his Britannia he was Terrificus Papae Regis Redargutor manifestissimus veritatis amator Henry de Knighton adds this of him Ad Innocentium Papam misit Epistolam satis tonantem a thundring Epistle qua de re ad curiam vocatus Excommunicatus appellavit a Curia Innocentii ad Tribunal Christi And this Usurped Power tho' used with more modesty at first yet in a short time it grew to that heighth that it prov'd intolerable and insolent The Bull of Pope Pius the Fourth publishes Decrees Non obstantibus Constitutionibus Ordinationibus Apostolicis Another Dispensation of the same Pope's runs in these words viz. Licet Christus post coenam instituerit sub utraque Specie Panis Vini Venerabile Sacramentum tamen hoc Non Obstante c. The Pope takes upon him to Dispense with that Sacred Institution A conficientibus for so he prophanely expresses it sub utraque a Laicis tantum modo sub Specie Panis suscipiatur In the Oath of a Bishop to the Pope extant in the Roman Pontifical set out by Pope Clement the Eighth the Bishop upon his Oath doth acknowledge amongst other Regalia Petri That the Pope can make void Promises Vows Oaths and Obligations to Laws by his Dispensations Dr. Marta de Jurisdictione affirms That Papa de Plenitudine potestatis potest Dispensare contra jus Divinum contra Apostolum est super omnia Concilia quae interpretatur tollit Corrigit The Glossator upon the Canon Law avowed by the Rota of Rome as the History of the Council of Trent does quote him holds the Pope can Dispense against the Old Testament and the Four Evangelists and against the Law of God. Bishop Jewel in his Defence of The Apology of the Church of England against Harding brings in one of their Canonists that holds That the Pope Privilegium dare potest contra jus Divinum Papa Dispensare potest de Omnibus preceptis veteris Novi Testamenti It is part of the Description given of Antichrist by the Prophet Daniel
evident that the King had no such Power or Prerogative of continuing Sheriffs in their Offices longer than a Year For under favour the Making of Sheriffs doth not nor never did belong to the King neither at the Common Law nor by any Act of Parliament so that all these Opinions and Resolutions are built upon a sandy Foundation and have but debile fundamentum and they take that for granted which is not a truth The Election of Sheriffs at the Common Law even from the very first Constitution of the Kingdom and by the Original Institution of the Government was in the Freeholders in the several Counties ever since there was any such Office as a Sheriff and ever since the Kingdom hath been divided into Shires that is in the time of the Saxons from whom we derive most of our Common Law and long after their time in the time of the Normans till being neglected by the Freeholders it came at length by an Act of Parliament made within the legal time of Memory to be taken from the Freeholders and the Power of Naming and Chusing Sheriffs every Year lodged in the hands of certain great Officers of State and so it continues to this day but neither is nor never was in the King. Mr. Lambard in his Book de Priscis Anglorum Legibus in his Lemma de Heretochiis fol. 147. says that those Heretochii were Ductores exercitus Here signifying an Army in the Saxon Tongue The same as in the Dialect of this present Age may be called Lord-Lieutenants or Deputy-Lieutenants The Law of King Edward which I take to be the Confessor speaks of these Heretochii in these words Isti vero viri Eligebantur per Commune Concilium pro Communi utilitate regni per provincias Patrias Universas per singulos Comitatus in pleno Folkmote sicut Vice-Comites Provinciarum Comitatuum Eligi debent This Law mentions this Election as an Use and Custom If the King did not make the Sheriff he could not continue him Sheriff if he could not make him for a Year he could not grant him the Office for longer than a Year the Sheriff had his Authority and Office from the Election not by Commission or Patent and that but for a Year Sir Edward Coke in his Second Institutes in his Exposition of the Statute of Westminster 1. Cap. 10. concerning the Election of the Coroners by the Freeholders which ever was so and so still continues says there is the same reason for Election of Sheriffs and so says he it anciently was by Writ directed to the Coroners In like manner were the Conservators of the Peace chosen in whose place the Justices of the Peace now succeed and so the Verderors of the Forrest are to this day These were great and high Liberties and did belong to the Freeholders from all antiquity and are strong Arguments to confute those late Authors that will by no means allow of a limitted Government but leave us under an Absolute and Arbitrary Power and who call our Laws and Liberties but the Concessions and Condescensions from the Regal and Absolute Power Sir Edward Coke discourses largely of these Elections in his Exposition of the Statute of Articuli super Chartas in his Second Institutes or Magna Charta fol. 558. By this Statute it is said the King hath granted to his People that they have the Election of their Sheriff in every County where the Sheriff is not of Fee if they will. Sir Edward Coke says by this Act that ancient Right the People that is the Freeholders had was restor'd to them and the words if they will import that they formerly had it but neglected it By a Statute made in the next King's Reign viz. 9 E. 2. styled The Statute of Sheriffs upon pretence that insufficient persons were commonly chosen for Sheriffs by that Act it is ordained that from thenceforth the Sheriffs shall be assigned by the Chancellor Treasurer Barons of the Exchequar and by the Justices And by the Statute of 14 E. 3. c. 7. some change is made of the persons that are to have the Election and the Day and Place of such Assigning of Sheriffs is prefix'd viz. yearly in the morrow of All-Souls and in the Exchequer By the Statute of 12 R. 2. c. 2. the Assigning of the Sheriff is put into the hands of more great Officers who are to be sworn to execute this Trust faithfully but it is not vested in the King all this while nor never was It is true that out of Reverence to the King these great Officers who had the Assigning of Sheriffs did afterwards use to name three persons out of which number they left it to the King to chuse one for every Shire But this was more out of deference to the King than out of any strict Obligation so to do and the Election made by the King was in Law to be accounted an Assignment by these great Officers Nor could the King chuse any other for Sheriff than one of those three so Assigned by those great Officers tho' it is sometimes otherwise practis'd And this hath been a Resolution of all the Judges of England and is mentioned in Sir Coke's Second Institutes fol. 559. it was in the 34th Year of Henry the Sixth and it is in these words viz. That the King did an Error when he made another person Sheriff of Lincolnshire then was chosen and presented to him by those great Officers after the effect of the Statute So that the right of Electing Sheriffs by those great Officers we see continued so lately as the latter end of King Henry the Sixth and I know of no Law since that hath alter'd it therefore we may conclude it is no Prerogative in the King. And we may further observe what plain Language all the Judges used in those days as to tell the King and the Lords of the Council that the King had erred in what he had done I observe this the rather that it may be some excuse to me for the plain Language I am forced to use in the Arguing upon this Subject The Lawyers are not always Courtiers nor will the Subject-matter bear Complements and Courtship Ornari res ipsa negat contenta doceri I cannot reconcile this Resolution of the twelve Judges given in the time of King Henry ths Sixth with that Opinion that is deliver'd in the Lord Dyer's Reports fol. 225. b. and it is but an Opinion 5 6 of Queen Elizabeth In the time of the Plague the Sheriffs were named and made without assembling the Judges ad Crastinum Animarum at the Exchequer according to the common usage but for the most part none was made but one of the two that remain'd in the Bill the last Year Tho' it was held says the Report that the Queen by her Prerogative might make a Sheriff without such Election by a Non Obstante aliquo Statuto in contrarium which crosses the Resolution I
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
imports the King's Declaration and Resolution by advice of his great Council to employ none in Offices and Places of Trust but such as are most capable and fit and will most faithfully answer the great Ends for which they are so intrusted that is the preservation of the Protestant Religion which is the true English Interest And this agrees with the Rules of the Common Law That if an Office be granted to one that is Inidoneus the Grant is void though granted by the King himself Of this I have treated more largely in my Argument fol. 37. The Lord Chief Justice Herbert pag. 16. asks the Question Whether so many solemn Resolutions of all the Judges of England in the Exchequer-Chamber are not to be rely'd upon for Law And I answer That if they were ten times as many more yet they are not to be rely'd on against many express positive Acts of Parliament directly to the contrary For what words could the Parliament use more emphatical and express and more to the purpose than by saying That a Non-obstante or a Dispensation or a Grant of such a thing prohibited by that Law shall be absolutely void and ipso facto adjudged void and the person made uncapable to take And is not a Judgment in Parliament and by Act of Parliament of the highest Authority But says the Chief Justice fol. 16. the constant practice hath been to dispense with the Statute of Sheriffs I answer It hath also been a very frequent practice too for the King to make such persons Sheriffs as were none of the number nominated or chosen as aforesaid by the Chancellor Treasurer Judges and other great Officers and it passes for currant that he may so do though it be a vulgar Errour For it hath been resolv'd by all the twelve Judges to be an Errour in the King. See Sir Coke's 2 Instit. or Magna Charta fol. 559. and yet it is practis'd to this very day The Chief Justice pag. 18. seems to excuse Popish Recusants for not qualifying themselves for Offices by taking the Oaths and the Test c. for that no man says he hath it in his power to change his opinion in Religion as he pleaseth and therefore it is not their fault It is an Errour of the mind c. Answ. Here is no occasion taken to find fault with them for their Opinion let them keep their Religion still if they like it so well who hinders them This Act of 25 Car. 2. imposes no Penalty upon them for their Opinion But is there any necessity of their being in Offices Must they needs be Guardians of the Protestant Religion The Penalty upon them by this Act is not for their Opinion but for their presuming to undertake Offices and Trusts for which they are by King and Parliament adjudg'd and declar'd unfit Page 20 21. The Chief Justice Vaughan is brought in arguing for the Kings Power of Dispensing with Nominal Nusances as he is pleas'd to call and distinguish Nusances The word Nominal as there understood imports that though a Parliament declares any thing to be a Nusance as sometimes they do in Acts of Parliament to render them indispensable which yet in its proper nature would not otherwise be so conceiv'd to be that such a Nominal Nusance as he holds may however be dispens'd with by the King though regularly by Law the King may not dispense with any Nusance Answ. Shall any single or particular person though a Chief Justice presume to call that a meer Nominal Nusance which a Parliament by a solemn Act and Law have adjudg'd and declar'd to be a real Nusance Are we not all concluded by what a Law says This Arrogance is the Mischief now complain'd of The Chief Justice Herbert pag. 22. at the lower end says That from the abuse of a thing an Argument cannot be drawn against the thing it self I agree this is regularly true yet we have an Instance to the contrary in the Scripture in that point of the Brazen Serpent But in our Case the abuse doth arise from the very nature of the thing it self from the constitution of it For the King practises no more in dispensing than what these Resolutions of the Judges allow him to do by this pretended Prerogative The Errour is in the Foundation They have made his Power to be unlimitted either as to number of persons or as to the time how long the Dispensation shall continue Sir Edward Coke says and so the other Books That the King is the sole Judge of these Nec Metas Rerum nec Tempora Ponunt The Chief Justice Herbert fol. 24. cites two clear Concessions as he is pleas'd to call them of all the Commons of England in Parliament which he esteems much greater Authorities than the several Resolutions of all the twelve Judges But how far these are from Concessions will easily appear to an indifferent Reader They are no more than prudent and patient avoiding of Disputes with the several Kings And there are multitudes of the like in the old Parliament-Rolls It is but an humble clearing of themselves from any purpose in general to abridge the King of any of his Prerogatives which have always been touchy and tender things but it is no clear nor direct allowance of that dispensing there mention'd to be any such Prerogative in him However I am glad to see an House of Commons to be in so great request with the Judges It will be so at some times more than at others Yet I do not remember that in any Argument I have hitherto met with a Voteâ— or Order or Opinion of the House of Commons hath been cited for an Authority in Law before now Will the House of Peers allow of this Authority for Law It will be said That this is but the acknowledgment of Parties concern'd in Interest which is allowed for a good Testimony and strongest against themselves Answ. I do not like to have the King and his People to have divided Interests Prerogative and the Peoples Liberties should not be look'd upon as Opposites The Prerogative is given by Law to the King the better to enable him to protect and preserve the Subjects Rights Therefore it truly concerns the People to maintain Prerogative I could cite several Parliament-Records wherein the poor House of Commons have been forced to submit themselves and humbly beg pardon of the King for doing no more than their Duty meerly to avert his displeasure See the Case of Sir Thomas Haxey whom the King adjudg'd a Traytor for exhibiting a Bill to the Commons for the avoiding of the outrageous Expences of the King's House 20 R. 2. num 14 15 16 17 and 23. and the Commons were driven to discover his Name to the King and the whole House in a mournful manner craving pardon for their entertaining of that Bill No doubt as good an Authority against the Commons for so sawcily medling in a matter so sacred and so far above them Yet afterwards