Cases besides those which depended on the Canon-Law For saith he the Pope usurped such a Power in derogation of the Authority Royal and then that Power must be originally in the King otherwise in the Construction of the Act it could be no Usurpation But this is a very false way of Reasoning The Pope usurped such a Power on the Crown therefore the Crown hath it of Right For the Popes Usurpations were many of them unreasonable his Primacy according to Canons being allowed and our Law did restore to the King the ancient Right and Jurisdiction of the Crown and not put him into the Possession of all the extravagant Power which the Pope usurped For this Law charges the Pope with intolerable Exactions of great Sums of Money in Pensions Censes Peter-Pence Procurations Fruits Suits for Provisions and Expeditions of Bulls for Arch-Bishopricks and Bishopricks and for Delegates and Rescripts in Causes of Contentions and Appeals Jurisdictions Legantine as well as Dispensations Licenses Faculties Grants Relaxations Writs called Perinde valere Rehabilitations Absolutions c. Now all these were Usurpations in Derogation of the Crown but doth it therefore follow that the Crown hath a Right to them all But to go no further than the Business of Dispensations Hath the King a Right by this Statute to dispense as far as the Pope The Pope usurped a Power of dispensing in Matrimonial Contracts in Oaths in Vows in some positive Divine Laws which I suppose H. 8. by vertue of the Supremacy never pretended to So that it is a very mistaken Notion of some Men That the King had all the Power which the Pope usurped And as to the Act it is plain by the Words of it That the Original Power of Dispensing was lodged in the King Lords and Commons and the Ministerial Execution of it with the Arch Bishop of Canterbury even with respect to the King himself But if the King had pretended to all the Power which the Pope usurped he must have dispensed with himself But this Author offers to Prove That there is a Power in the Crown to dispense with Acts of Parliament even such as concern the Consecration of Bishops because it is said 8 Eliz. That the Queen by her Supreme Authority had dispensed with all causes or Doubts of any Imperfection or Disability in the Persons c. To give a clear Answer to this we must consider these Things 1. That 1 Eliz. 1. The Act of 25 H. 8. for the Order and Form of Electing and Making arch-Arch-Bishops and Bishops was revived as appears by the same Act 8. Eliz. 1. 7. 2. That by another Act 1 Eliz. 2. The Book of Common-Prayer and Administration of Sacraments and other Rites and Ceremonies of the Church of England which were in use in the time of 6 E. and repealed by Queen Mary were re-inforced 1 Eliz. 2. 2. and the Repeal annulled But by the Act 5 and 6 E. 6. c. 1. § 5. the Form and Manner of making Arch-Bishops Bishops Priests and Deacons was added to the Book of Prayer as of like Force and Authority with it 3. That the Act of E. 6. being revived with the express mention of the Alterations and Additions made to it there was ro Necessity apprehended 1 Eliz. to make a distinct Act for that which was in force already by the Name of Additions therein added and appointed by that Statute And this I conceive was the true Reason why a Bill did not pass 1 Eliz. to that purpose For I find by the Journals of the House a Bill was prepared and read the third time in the House of Lords but upon Consideration it was laid a side as superfluous 4. That the Popish Party took Advantage of this and pretended That the Book of Consecration c. was not established by Law being not expresly mentioned and therefore the Bishops made by it were not Legal Bishops And upon this Bonner resolved to stand the Trial against Horn Bishop of Winchester as may be seen in Dyer R. f. 234. So that the Papists then stood upon it That the Crown could not dispense with Laws otherwise Bonner's Plea signified nothing For if there were such an Inherent Right in the Crown to Dispense with Laws in Ecclesiastical Matters then these were Legal Bishops having all the Queen 's Dispensing Power for them 5. The Clause in the Queen's Letters Patents for Dispensing with Imperfections and Disability was put in out of abundant Caution and not for any Necessity that we can find But it was Customary in the Popes Bulls to put in such kind of Clauses and therefore they would omit no Power in that Case which the Pope did pretend to which the Act faith was for avoiding all Ambiguities and Questions 6. But after all lest there should be any Colour for Disputing this Matter left according to the express Letter of the Law therefore it was declared 8 Eliz. 1. 3. That not only the Book of Common-Prayer but the Form of Consecrating Archbishops Bishops c. which was set sorth in Edward the Sixth's Time and added to the Common Prayer shall stand and be in full Force and Effect And all Acts done by it are declared to be Good and Perfect to all Intents and Purposes So that this Act of Parliament doth rather overthrow a Dispensing Power for if there were then such a Supreme and Absolute Power in the Crown as to Ecclesiastical Matters what need such an Act of Parliament to Confirm and Ratifie what our Author supposes done by virtue of it But to return to the 25th of H. 8. In the same Act of Parliament care is taken for the Visiting Exempt Places as Monasteries Colledges and Hospitals by a particular Commission under the Great Seal But that which comes nearest to our Business is That 26 H. 8. c. 1. another Act passed wherein the King's Supremacy is acknowledged and a Power given by Act of Parliament for him to Visit Redress and Amend all Errors Heresies Abuses Contempts and Enormities whatsoever which by any manner of Spiritual Authority or Jurisdiction ought or may lawfully be Reformed in any Usage Custom Foreign Laws Foreign Authority Prescription or any Thing or things to the contrary hereof notwithstanding If the King had this Power by virtue of his Supremacy and Prerogative Royal can we imagin H. 8. so weak a Prince and so little a valuer of his own Prerogative as to have that given him by Act of Parliament which was acknowledged to be in him before But the Words are express And that our Sovereign Lord c. shall have full Power and Authority from Time to Time to Visit c. From whence it follows That in the Judgment of H. 8. and the Parliament such a Power was not personally inherent in him but that it did belong to the Legislative Power and therefore an Act of Parliament was required for it so that the Supremacy as then setled by Law lay in a total rejecting any Foreign Jurisdiction
Ecclesiastical Jurisdiction are either such as other Princes have an equal Right to or else they must imply such proper Eclesiastical Jurisdiction as follows the Power of Order and then how can the Pope give the one without the other Such a Gift is like an Appropriation of a Benefice with a Cure to a Nunnery which the Lord Hobart saith is void in Law by reason of the incapacity of the Persons But the Supremacy which our Law gives is not any proper immediate spiritual Jurisdiction like that of Bishops but an Authoritative and Legislative Supremacy without any foreign Appeals as will appear afterwards But the Rights which the Kings of Sicily challenge are these 1. That they have the same Powers which Legates a Latere have and may judge of the same Causes and proceed in the same manner with Ecclesiastical Censures 2. That no Appeal lies from the King's Commissioner even to Rome it self and it is common to appeal from the Censure of the Bishop to him The former is a Power which our Kings never pretended to by vertue of their Supremacy for it is a Delegation of the Power of the Keys which the Legates à Latere exercise by vertue of their Function as well as their Commission But the Legal Supremacy with us is a Right to govern all sorts of Men by our own Laws without any foreign Jurisdiction and that with respect to Ecclesiastical Matters as well as Temporal But to prevent Mistakes and Cavils about this Matter it will be necessary to clear the Notion of Supremacy as it hath been owned and received in the Church of England And for this we have two Authentic Declarations of it to rely upon The first is mentioned 5 Eliz. c. 1. § 14. Where the Supremacy is declared to be taken and expounded in such form as is set forth in the Admonition annexed to the Queens Injunctions published in the first year of her Reign And the Words there are That the Queen neither doth nor will challenge any Authority but such as was of ancient time due to the Imperial Crown of this Realm that is under God to have the Sovereignty and Rule over all manner of Persons born within these her Realms Dominions and Countries of what Estates either Ecclesiastical or Temporal soever they be so as no other foreign Power shall or ought to have any superiority over them The Second is in the 37th Article wherein it is declared That by the Supremacy is meant that only Prerogative which we see to have been always given to all Godly Princes in Holy Scriptures by God himself that is that they should rule all Estates and Degrees committed to their Charge by God whether they be Ecclesiastical or Temporal and restrain with the Civil Sword the stubborn and evil doers So that granting a Commission for proceeding by Ecclesiastical Censures is no part of that Supremacy which our Church owns And thus the Divines of our Church have understood it By the Supremacy saith Bishop Andrews we do not attribute to the King the Power of the Keys or Ecclesiastical Censures R. Thompson in his Desence against Becanus saith The Supremacy is not to be defined by Ecclesiastical Jurisdiction but by Supream Government Becanus urged this as an Argument against the Kings Supremacy That he had no Ecclesiastical Jurisdiction Dr. Burrhil answered That the Supremacy implied many other things as the Power of calling Convocations of confirming Canons of giving Commissions of Delegates of taking Cognizance of the Misdemeanors of Church-men as well as others but for proper Ecclesiastical Jurisdiction he denies it to belong to Supremacy And after asserts That the King's Supremacy is preserved if he takes care that those who have the Power of Ecclesiastical Censures do exercise them and not as though it belonged to the Supremacy to give an immediate Power to proceed by Ecclesiastical Censures which was not supposed to belong to it but a supreme Right of governing all sorts of Persons by our Laws The King's Supremacy in Ecclesiastical Matters doth not saith Mason imply the Power of the Keys which the King hath not but he may command those who have them to use them rightly All these wrote in King James I. his Reign when the Point of Supremacy was throughly sifted on both sides And the King himself who very well understood these Matters saith That the Oath of Supremacy only extended to the King's Power of Judicature over all Persons as well Civil as Ecclesiastical excluding all foreign Powers and Potentates to be Judges within his Dominions Not as though the King hereby challenged to himself a Power of inflicting Ecclesiastical Censures on Persons but leaving the Spiritual Jurisdiction to those who have the Power of the Keys it belonged to him to exercise his Supreme Authority over Ecclesiastical Persons and Causes as he did over Temporal For saith Archbishop Bramhal our Laws never invested the King with any Spiritual Power or Jurisdiction witness the Injunctions of Q. Eliz. witness the Publick Articles of Our Church witness the Professions of King James witness all our Statutes themselves The King of England saith he by the Fundamental Constitution of the Monarchy hath plenary Power without the Licence or Help or Concurrence of any Foreign Prelate or Potentate to render final Justice that is to receive the last Appeals of his own Subjects without any Fear of any Review from Rome or at Rome for all Matters Ecclesiastical and Temporal Ecclesiastical by his Bishops Temporal by his Judges And thus our Laws were in the Right when they called the Act of Supremacy Restoring the Rights of the Crown for if we take away all the Papal Usurpations as to Appeals Exemptions of Persons Dispensations Provisions making Canons sending Legates to hold Courts to call Convocations c. we may easily understand what the Supremacy is viz. a Power of Governing all Sorts of Men according to the Laws Ecclesiastical and Temporal without any Foreign Jurisdiction But as in Temporal Matters the King 's Supreme Authority is exercised in his Ordinary Courts so likewise in Ecclesiastical Which deriving their Jurisdiction from the King as Supreme his Supremacy is preserved in the ordinary Ecclesiastical Courts but as to extraordinary Jurisdiction that deper ds on the Legislative Power And whether that be not now taken away by it is the thing in Question Having endeavoured to set this Matter in as clear a Light as I could I now return to the Instance of Edward the Confessor And those Words of his as they are in Hoveden signifie no more than a General Right of Protecting and Defending the Church which is not denied to belong to Kings where the Pope's Authority is the most owned I cannot but take notice of a different Reading in the Lord Cokes Copy from all that I have seen for where he hath it Sanctam Ecclesiam regat defendat Lambard veneretur regâ—t but Hoveden revereatur ab
is not the Kings Law. For taking one Example for many every Leet or view of Frank Pledge holden by a Subject is kept in the Lords Name and yet it is the Kings Court and all the Proceedings therein are directed by the Kings Laws and many Subjects in England have and hold Courts of Record and other Courts and all their Proceedings be according to the Kings Laws and Customs of the Realm But there is a Material Objection or two yet to be answered 1. It is Objected That 2 Jac. the Judges declared in the Star-Chamber That the Deprivation of Non-conformists was lawful because the King had supreme Ecclesiastical Power which he hath delegated to the Commissioners whereby they had Power of Deprivation by the Canon Law of this Realm and the Statute of 1 Eliz. doth not confer any new Power but explain and declare the ancient Power And therefore they held it clear that the King without a Parliament might make Orders and Constitutions for the Government of the Clergy and might deprive them if they obeyed not To which I answer 1. Our Question is not Whether the King without a Parliament may not require the Observation of Canons passed the Convocation so as to deprive the Obstinate by Vertue of his Supreme Power in Ecclesiastical Matters but whether he may appoint a Commission with Power to deprive against an Act of Parliament which hath taken away the Legal Power of any such Commission 2. In matters of this nature it is safer trusting the Supreme Judicature of the Nation in Parliament than the Extrajudicial Opinion of the Judges And in this Case the Parliament hath declared it self another way as appears by the Canons 1640. which were not only condemned in Parliament afterwards which then might be imputed to the heat of the Times but in the most Loyal Parliament after the King's Return particular care was taken that neither the Canons of 1640. should be confirmed nor any other Ecclesiastical Laws or Canons not formerly confirmed allowed or enacted by Parliament or by the Established Laws of the Land as they stood in the Year of the Lord 1639. Which implies that the Sense of the Parliament then was that we are not to own any Canons but such as were confirmed allowed or Enacted by Parliament or by the Established Laws of the Land before 1639. And therefore no new Injunctions without a Parliament or Convocation can make the Clergy liable to a Legal Deprivation No not that which the Defender is so pleased with the thoughts of viz. to give their Assent and Consent to the King's Declaration on pain of Deprivation 3. The Temporalties of the Clergy especially the Bishops are secured by several Acts of Parliament without a Tryal at Law. Which because I see none of our great Lawyers take notice of I shall here set down 14 Edward the Third c. 3. We Will and Grant for us and for our Heirs that from henceforth We nor Our Heirs shall not take nor cause to be taken into Our Hands the Temporalties of Archbishops Bishops c. or other People of Holy Church of what Estate or Condition they be without a true and just Cause according to the Law of the Land and Judgment thereupon given 25 Edward the Third c. 6. The Title of the Statute is A Bishops Temporalties shall not be seized for a Contempt And this was received for good Law 9 E. 4. 28. Br. Ord. 12. Reg. f. 32. But a very late Writer tells the World That the Possessions of Ecclesiastical Persons are but Conditional Freeholds and although Absolute Freeholds require a due Course of Law yet Conditional do not so that if a Man chance to be deprived of his Office his Freehold is gone This is touching Clergymen's Freeholds to purpose and no doubt out of pure Zeal to the Church of England But see the Equity and Impartiality of this Man He had undertaken before to give Publick Assurance of Abby-Lands to the present Possessors And for what Reason Because the Pope granted a Dispensation with a non obstante to the Canon Law And yet in this Book he proves That a non obstante is no ways binding to the Supreme Power so that no Man could more effectually overthrow his own Assurance than he hath done himself For saith he Present Sovereigns whether King or Pope cannot bind their Successors And again Acts of Graces and Favours are alterable and suspendible at the Pleasure of the Succeeding Sovereign Why then should any be so weak as to think the Plenitude of the Pope's Power as to Abby-Lands can be bound up by the Act of any former Pope I confess the comparing these two Books together hath extreamly lessened his Assurance of Abby Lands with me And his Answers to the Power of Revocation are so weak that they come at last to no more than this It is a thing which cannot well be done at present therefore there is no fear it ever should be done Here is some Security at least till it can be done But as to the Possessions of the Ecclesiastical Persons of the Church of England he endeavours to prove That they can have no Security at all of their present Possessions notwithstanding any Promise or a Legal Title For if as he saith The King by his Paramount Jurisdiction can make any Exceptions null and so void a solemn Oath not to accept a Dispensation from that Oath why should he not as well make void any Promise of his own when it hinders as he thinks a greater Good especially if the Prerogative cannot be bound But then as to a Legal Title that is the vainest thing imaginable as to such Conditional Freeholds which Clergymen have for if the Commissioners deprive them by their Power ab Officio Beneficio their Attendent Frehold saith he is gone without any Course of Law. And the Defender saith The Commissioners may deprive if Clergymen should not assent and consent to all contained in the King's Declaration if he required it But it is to be hoped That Princes will not take the Measures of Justice and Wisdom and Honour from such Men We will therefore set aside the Omnipotent Engine of a non obstante which doth not batter so much as it undermines and consider the Legal Security of these Conditional Freeholds I. All Freeholds are in some Sense Conditional or else they could never be forfeited Which shews that there are none Absolute with Respect to the Law. And as to their Original among us it is agreed That by the Ancient Right of Tenures all Fees are Conditional for they suppose Fealty the non-performance whereof is Felony Which is not that which is done felleo animo as Sir Edward Coke trifles but it is the same with Falshood or Treachery The Laws of H. 1. c. 5. Si Dominus de Felonia vel Fide mentitus compellat hominem suum And in another Law the punishment of Felony is Forfeiture of the
A DISCOURSE CONCERNING THE ILLEGALITY OF THE LATE Ecclesiastical Commission In ANSWER to the VINDICATION and DEFENCE of it Wherein the true Notion of the LEGAL SUPREMACY Is CLEARED And an Account is given of the Nature Original and Mischief OF THE DISPENSING POWER LONDON Printed for Henny Mortlock at the Phoenix in St. Paul's Church-Yard and at the White Hart in Westminster-Hall M D C LXXXIX AN Advertisement THIS Discourse concerning the Illegality of the Late Ecclesiastical Commission was written when the Author of it was summoned to appear before it and was in continual Expectation of undergoing its Censure for not Complying with the Orders of it This put him upon an Enquiry into the Grounds on which it stood From whence he proceeded to search into the True Notion of the Legal Supremacy and finding it very imperfectly set down in the famous Fifth Report De Jure Regis Ecclesiastico he took the Pains to Examin it through every Reign there mentioned and upon the whole Matter he finds him and his Adversary F. P. equally mistaken But in the Management of it he hath rather endeavoured to give Light to the Thing than to discover any Mans Errors And it is hardly possible to settle the Notion of it aright without considering the Practice of other Countries as well as our own Of both which the Reader will find a short but impartial Account which I believe the Author could more easily have inlarged than have brought it into so narrow a Compass By this I hope the World will see That it was not Humor or Faction but a real and well-grounded Dissatisfaction which made those of the Church of England oppose the Proceedings of that Time and that such have as great and real a Zeal for the Ancient and Legal Constitution of our Government as those who make a greater Noise and Clamor about it and that not upon any new Notions or Phrases but upon the very same Grounds which our Ancestors made use of and carry in them the true Basis of our English Government It is possible some worthy Men may have carried some Notions beyond our Legal Constitution but the more they search into it the better Opinion they will have of it Which I think is so well setled that every Deviation from it tends to our Ruin. As to the Dispensing Power the Author hath inlarged that Part since some late Discourses have been published both for and against it He hath neglected nothing which hath been most plausibly pleaded for it but hath given a full Answer to the most material Instances which have been insisted on in behalf of it And after all I cannot but conclude That the Dispensing Power is a kind of Mental Reservation which quite alters the Meaning and Design of a Law. When the Late Ecclesiastical Commission was superseded if not dissolved the Author laid by these Papers as Useless but having communicated them to one Particular Friend whose Judgment and Authority he had a great Regard to he hath been prevailed with by him to make them Publick at this Time It being still necessary to shew with what Justice and Reason we refused to own the Jurisdiction of it And it seems to me as hard to reconcile it to our Laws as Liberty of Conscience to the Principles of Popery or the Worship of Images to the Second Commandment THE CONTENTS CHAP. I. THE State of the Question concerning the Court of the late Ecclesiastical Commission Pag. 1 CHAP. II. The King's Supremacy by Common-Law enquired into Coke's fifth Report de Jure Regis Ecclesiastico examined p. 8 CHAP. III. Whether the King's Supremacy by Law extends to the Dispensing with Laws Of the Nature and Original of that Power The Inconsistency of such a Dispensing Power with the Frame of our Government p. 25 CHAP. IV. Of the Alterations made in the Supremacy by the Statutes of Henry the Eighth with an Answer to the Objections p. 49 THE LEGALITY OF THE COURT OF Ecclesiastical Commission Stated and Argued In ANSWER to the VINDICATION and DEFENCE of it CHAP. I. The State of the Question concerning the Court of the late Ecclesiastical Commission The Case stands thus BY the Act of 1 Eliz. 1. it was established and enacted That such Jurisdictions Priviledges Superiorities and Preheminencies Spiritual and Ecclesiastical as by any Spiritual or Ecclesiastical Power or Authority have heretofore been or may lawfully be exercised or used for the Visitation of the Ecclesiastical State and Persons and for Reformation Order and Correction of the same and of all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities shall for ever by this present Parliament be united and annexed to the Imperial Crown of this Realm And that the Kings and Queens of this Realm shall have ful Power and Authority by virtue of this Act by Letters Patents under the great Seal of England to assign name and authorize when and as often as they shall think meet and convenient and for such and so long time as they shall think meet to exercise use occupy and execute all manner of Jurisdictions Priviledges and Preheminences in any wise touching or concerning any Spiritual or Ecclesiastical Jurisdiction within these Realms and to visit reform redress order correct and amend all such Errors Heresies Schisms Abuses Offences Contempts and Enormities what soever which by any manner of Spiritual or Ecclesiastical Power Authority or Jurisdiction can or may lawfully be reformed ordered redressed corrected restrained or amended to the Pleasure of Almighty God the increase of Virtue and the conservation of the Peace and Unity of this Realm And that such Person and Persons so to be named authorized and appointed after the said Letters Patents to him or them made and delivered shall have full Power and Authority by virtue of this Act and of the said Letters Patents to exercise use and execute all the Premises according to the Tenour and effect of the said Letters Patents any Matter or Cause to the contrary in any wise notwithstanding But in the Act 17 Car. 1. c. 11. after the recital of this latter Clause these words follow And whereas by Colour of some Words in the aforesaid Branch of the said Act whereby Commissioners areauthorized to execute their Commission according to the Tenor and Effect of the King's Letters Patents and by Letters Patents grounded thereupon the said Commissioners have to the great and unsufferable Wrong and Oppression of the King's Subjects used to fine and imprison them and to exercise Authority not belonging to Ecclesiastical Jurisdiction restored by that Act and divers other great Mischiefs and Inconveniences have also ensued to the King's Subjects by occasion of the said Branch and Commissions issued thereupon and the Executions thereof therefore for the Repressing and Preventing of the aforesaid Abuses Mischiefs and Inconveniences in time to come Be it enacted by the King 's Most Excellent Majesty and the Lords and Commons in this present Parliament assembled and by the Authority
deprived by it whereas in Fact there were but Fourteen deprived and that for not doing what they had done before in Henry the 8th's Time viz. for refusing to take the Oath of Supremacy which they had all taken in the time of H. 8. And as far as I can learn they were not deprived by the High Commission but by a particular Commission for that purpose as appears by the best Account we have of it in the Historians who lived nearest the time In the Month of July says Stow the old Bishops of England then living were called and examined by certain of the Queens Majesties Council where the Bishops of York Ely and London with others to the Number of Thirteen or Fourteen for refusing to take the Oath touching the Queens Supremacy and other Articles were deprived from their Bishopricks What he means by the other Articles I know not for there seem to be no other at that time for which they could be deprived by Law but refusing the Oath of Supremacy and so much Saunders himself owns for the other faults were not punishable with deprivation The Bishops being deprived by a special Commission of the Council then saith Stow Commissioners were appointed for all England For London Sir Richard Sackvile Dr. Horn Dr. Huick and Mr. Savage who called before them divers Persons of every Parish and swore them to enquire and present upon certain Injunctions With him Hollingshead agrees only adding that these Commissioners were sent according to an Act passed and confirmed last Parliament This was the Act for the High-Commission which then extended to particular Parishes with such such Powers of the Common Law as are already mentioned but are not of the Essence of the Commission according to the Act of Parliament and therefore the taking away those additional Powers doth not destroy the High Commission but the Repealing the Act of Parliament on which it was built takes away any such Court-Proceeding by Ecclesiastical Censures To make this more plain by a Parallel Instance The Court of Star-Chamber was taken away at the same time the High-Commission was and both determined the same day 17 Car. 1. Aug. 1. This Court was erected for extraordinary Civil Jurisdiction as the High Commission was for Spiritual but by the Act 17 Car. 1. c. 10. it was taken away much in the same manner with the Court of High-Commission For there is a Recital of the Statutes on which it was grounded 3 Hen. 7. c. 1. 21 Hen. 8. c. 20. And then it is alledged That they had exceeded the Bounds which the Law had given them in these Words But the said Judges have not kept themselves to the Points limited by the said Statute but have undertaken to punish where no Law doth warrant and to make Decrees for things having no such Authority and to inflict heavier punishments than by any Law is warranted And so by this very same way of Reasoning which the Vindicator uses another Court of Star-Chamber may be set up if it keeps it self within the Bounds of the Statutes But we are not to judge of the force of a Law by the particular Reason assigned but by the Enacting Clause Be it Ordained and Enacted by the Authority of this present Parliament That the said Court commonly called the Star-Chamber and all Jurisdictions Power and Authority belonging unto or exercised in the same Court c. be from the first of August 1641. clearly and absolutely dissolved taken away and determined If another Star-Chamber cannot be set up with some Limitations for Extraordinary Civil Jurisdictions how can another Ecclesiastical Court for extraordinary Spiritual Jurisdiction which is taken away after the same manner Only the Act against the High Commission is more express in the Conclusion against Setting up any other Court with like Power Jurisdiction or Authority for it was then foreseen that some other Court might be set up with some Alterations and to prevent any thing of that Nature the last Clause was annexed 2. The prohibiting Clause 17 Car. 1. c. 11. is very considerable to the purpose For the Force of the former Act was taken away by the Repealing Clause but that was not thought sufficient to prevent another Court rising up which might be like to it A Court may be like although not altogether the same It may be like in Jurisdiction although not in a Power to Fine and imprison But the Act saith That no new Court shall be Erected which shall or may have the like Power Jurisdiction or Authority as the said High-Commission now hath or pretendeth to have but that all and every such Letters Patents made or to be made by his Majesty or Successors and all Powers and Authorities granted or pretended or mentioned to be granted thereby ana all Asts Sentences and Decrees to be made by vertue or colour thereof shall be utterly void and of none effect Was all this meant only of such a Court as should proceed to Fine and Imprison Why was not this set down in as plain a manner as such a Law required But we are to observe 1. It not only voids the Letters Patents but declares the Constitution of the Court it self to be illegal but that doth not depend upon the Power to Fine and Imprison If it had been said No New Court shall be erected with a Power to Fine and Imprison the Matter had been clear for a New Court might have been erected proceeding by Ecclesiastical Censures without a Power to Fine and Imprison But the Act takes no notice here of any such Power but absolutely forbids any Court with the like Power Jurisdiction or Authority Had the High-Commission no Power Jurisdiction or Authority but only to Fine and Imprison Their Power and Authority by Act of Parliament was general to reform Abuses c. In case there had been no such Clause as Fining and Imprisoning in the Letters Patents had there been no Court no Power Jurisdiction or Authority belonging to it If then there be a Power Jurisdiction or Authority of a High Commission Court without a Power to Fine and Imprison then all such Power and Authority is taken away by the Prohibiting Clause 2. It forbids the Jurisdiction of such a Court But Jurisdiction is quite another thing from a Power to Fine and Imprison Jurisdictio saith Bracton is Authoritas judicandi sive juris dicendi inter partes and to the same purpose Fleta They both distinguish two kinds of Jurisdiction Ecclesiastical and Civil Ecclesiastical saith Bracton is that which belongs to Ecclesiastical Causes Which shews That they looked on Ecclesiastical Proceedings by Censures as part of the Ecclesiastical Jurisdiction The first General Exception saith Fleta is against the Jurisdiction of a Court which is allowed to be made to those quibus deficit autoritas judicandi From hence it appears That the Power and Authority of medling in Ecclesiastical Causes is that which is implied in the Jurisdiction of the Court if it
Person and this Royal Power cannot be restrained by any Act of Parliament neither in Thesi nor in Hypothesi but that the King by his Royal Power may dispense with it for upon the Commandment of the King and Obedience of the Subject does his Government consist as it is provided by the Statute of 23 H. 6. c. 8. That all Patents made or to be made of any Office of a Sheriff c. for Term of years or for Life in Fee-simple or in Tail are void and of none effect any Clause or Parol of Non-obstante put or to be put into such Patents to be made notwithstanding And further Whosoever shall take upon him or them to accept or occupy such Office of Sheriff by vertue of such Grants or Patents shall stand perpetually disabled to be or bear the Office of Sheriff within any County of England by the same Authority And notwithstanding that by this Act 1. The Patent is made void 2. The King is restrained to grant a Non-obstante 3. The Grantee disabled to take the Office yet the King by his Royal Sovereign Power of commanding may command by his Patent for such Causes as he in his Wisdom doth think meet and profitable for himself and the Commonwealth of which he himself is sole Judge to serve him and the Weal Publick as Sheriff for such a County for years or for Life c. And so was it resolved by all the Justices of England in the Exchequer Chamber ' 2 H. 7. Here the Point is resolved into an inseparable Prerogative in the King which no Act of Parliament can restrain although made with his own Consent Is there no Act of Parliament then which this great Lawyer will allow to restrain the King's Prerogative so as he cannot disperse with it What saith he to the Case of Buying Offices at Court Cannot the King by vertue of his Prerogative order his Houshold as he pleases to dispose of Offices about him as he thinks fit No. The same Lawyer saith That no Non obstante could dispense with the Act against buying of Offices And yet one would think that the King had as great a Prerogative in the Court as over the Kingdom But how comes he to say That the King can dispense notwithstanding the Disability when elsewhere he saith The King cannot dispense in the Case of a Disability by Law For the Reason he gives why the King cannot present a Man to a Living who is convict of Simony is because the Law hath disabled him Very well And yet in this Case although the Law hath disabled him the King may dispense Where are we now The King can dispense with a Disability and he cannot dispense with it This is indeed a very dark learning of Dispensations as C. Justice Vaughan well called it for we cannot yet find the way through it Can the King dispense with a Disability in Law or not If not the Case of Sheriffs is gone If he can then why not in the case of Symony Why not as to sitting in Parliament without taking the Oaths No here is a Disability in Law. What then Cannot the K. dispense with a Disability in one Case as well as the other Bu the same Person saith That in that Case because the Words amount to a Disability the King cannot dispense and here where the Disability is expressed he may But we are lately told there are two sorts of Disabilities one is actually incurred as that upon the Members who sit without taking the Oaths and the other is a Disability annexed to the Breach of a Law as a penalty and that penalty not to be incurred before a Legal Conviction and in this Case the King's Dispensation coming before the Conviction doth prevent it by making that lawful which would not have been so without it But when a Disability is actually-incurred it cannot be taken off but by Act of Parliament I Answer That if the Law which makes the Disability doth allow of a Dispensation antecedent to the Conviction then I grant that the Dispensation before Conviction prevents the Disability As in Digby's Case if the Dispensation had come before Institution the Disability as to holding the former Living had been prevented because the Law doth expresly allow of a Dispensation in the Case But here is no such thing The Act of Parliament supposes no Dispensation but makes an utter Disability as to the holding the Office in Sir Edward Hales his Case but a dispensing Power is set up against the Act of Parliament and such a Dispensation neither before nor after Conviction can prevent a Disability If it could I can by no means see why it might not as well hold as to Members of Parliament at least as to the Oath of Supremacy if they take their Dispensation before Sitting in the House For the Disability doth not take place till they enter the Parliament 5 Eliz. c. 1. And he that entreth the Parliament without taking the said Oath shall be deemed no Knight Citizen Burgess or Baron nor shall have any Voice but shall be as if he had been never Returned or Elected The Intention of the Law for the Test was a disability to hold the Office but it allows time for Persons to qualifie themselves as appears by the Act for the Test. Is not this plain overthrowing the design of the Law for Persons instead of doing what the Law requires to take out a Dispensation for not doing it and so prevent the Disability And what doth a Law signifie when the very design of it is overthrown And what is the Power of making Laws by common Consent in Parliament if without such Consent the whole force of the Law may be taken away by a dispensing Power So that this doth not meerly make Laws to signifie nothing but according to Will and Pleasure but it makes our very Constitution insignificant which requires to every Law the Consent of the People in Parliament As for Instance By the first Constitution of the Roman Government the King had the custody of the Laws but no Laws were to be made but by the Consent of the Roman People in the Curiae thence called Leges Curiatae Would any one have thought this any Privilege if after these Laws were passed the King should claim an inseparable Prerogative of dispensing with them as he sees Cause For it is implied in such a Fundamental Contract as this that Laws when made should not lose their Force without their Consent who made them Else it is not Contractus bonae Fidei I will not dispute whether this were the Original Contract of our Nation or not but this I may say That when our Government came to a Settlement after long struglings this was one of the Fundamental Articles of it That no Laws should pass or Burdens should be laid upon the People but by their own Consent in arliament Bracton saith That a Law among us supposes the Authority of
Particular Statute made for the Security of our Religion or for a Suspension of our Ecclesiastical Laws CHAP. IV. Of the Alterations made in the Supremacy by the Statutes of Henry the Eighth with an Answer to the Objections I Now come to the Alterations made in our Laws about the King's Supremacy in the Time of Henry the Eighth 24 Hen. 8. c. 12. An Act passed for taking away all Appeals to Rome which is founded on the King 's Natural and Independent Right of Governing and doing Justice to all his People and the Sufficiency of his own Clergy for Hearing and Determining such Matters as belonged to their Function and therefore all Causes are to be Heard Discussed Examined finally and definitively Adjudged and Determined within the King's Jurisdiction and Authority and not elswhere in the Courts Spiritual and Temporal But if the King be concerned then it is referred to the Upper-House of Convocation The Preamble of this Act against Appeals to Rome is considerable Whereas by divers Authentick Histories and Chronicles it is manifestly declared and expressed That this Realm of England is an Empire governed by one Supreme Head and King c. with plenary whole and entire Power Preheminence Authority Prerogative and Jurisdiction c. for final determination of Causes c. so that here is an Appeal to Ancient History in this Matter and we have still sufficient Evidence of it before the Popes Encroachments prevailed The Bishops and Barons told Anselm in William Rufus his time It was a thing unheard of and contrary to the Custom of his Realm for any one to go to Rome without the King 's Leave which is after explained by way of Appeal Anselm made but a shuffling Answer to this although he had sworn to observe the Customs of the Realm and he could not deny this to be one but he pretended It was against S. Peter 's Authority and therefore could not observe it for this were saith he to abjure S. Peter From whence I infer That the Custom of the Realm was then thought by Anselm to be inconsistent with the Pope's Authority For whatever they talk of S. Peter it is the Pope they mean. In the Reign of H. 1. the Pope complains grievously That the King would suffer no Appeals to be made to him and that due Reverence was not shewed to S. Peter in his Kingdom and that they ended Ecclesiastical Causes at Home even where Bishops were concerned and very learnedly quotes the Deâ—retal Epistles against them Afterwards the Pope sent his Legate and the King denied him Entrance and the whole Parliament rejected it as contrary to the Ancient Custom and Liberty of England That Passage in the Laws of H. 1. c. 5. which seems to allow of Appeals is a mere Forgery the whole Chapter being a Rapsody taken out of the Canonists H. Huntingdon saith That Appeals were brought in in King Stephen 's time by Henry Bishop of Winchester his Brother being the Pope's Legate By the Constitutions of Clarendon c. 8. the Appeal lay from the Archbishop to the King which is well expressed by Robert of Gloucester And the K. amend solde the Ercbishops deed And be as in the Pope's sted and S. Thomas it withsteed And although H. 2. in his Purgation for the Death of the Archbishop did swear That he would hinder no Appeals to Rome in Ecclesiastical Causes and that he would quit the Ancient Customs of the Realm Yet Hoveden saith The Constitutions of Clarendon were renewed in the Parliament at Northampton and the Justices in Eyre were sworn to observe them and to make others observe them inviolably And for those who went out of the Kingdom in Case of Appeals the Justices were to enquire per consuetudinem Terrae according to the Ancient Custom and if they did not return and stand to the King's Court they were to be outlawed In the Time of R. 1. the Popes complained much of Geofry Archbishop of York for slighting Appeals made to Rome and imprisoning those that made them Celestine doth it twice and in the same Words And Innocent the Third in King John's Time renews the same Complaint of him That he shewed no regard to Appeals made to the Apostolick See. But when the Rights of the Crown were given up by King John to the Pope no Wonder if the Liberties of Appeals were granted by him But yet in the succeeding Reigns we have several Instances upon Record of Persons imprisoned by the King for making Appeals to Rome John of Ibstock in the Time of E. 1. The Abbot of Walden and a Prebendary of Banbury in the Reign of E. 2. The Parson of Leighe Harwoden and the Prior of Barnwel in the time of E. 3. So that this Right was still owned by our Princes when the Matter came into Contest and therefore the Act of H. 8. against Appeals was but a just Resuming of the Ancient Rights of the Crown 25 H. 8. c. 19. A Commission is appointed for reviewing the Canons And it is observable That because it could not be done in Parliament Time the King hath Power given him by Act of Parliament to nominate the thirty two Persons to act in this Matter in these Words Be it therefore enacted by the Authority aforesaid That the King's Highness shall have Power and Authority to nominate and assign at his Pleasure the said thirty two Persons of his Subjects whereof sixteen to be of the Clergy and sixteen to be of the Temporality of the Upper and Nether House of Parliament And because the last Resort was to the Arch-Bishop in the former Act of Appeals therefore to prevent any Inconveniences thereby a new Power is granted by this Act i. e. Upon an Appeal to the King in Chancery a Commission is to be directed to such Persons as the King shall appoint who are to hear and determine such Appeals and the Causes concerning the same 25 H. 8. c. 21. After the Submission of the Clergy and the King being owned Supreme Head yet the Power of dispensing with the Canons in particular Cases did not pass by Commission from the King but by Act of Parliament The Words are It standeth therefore with natural Equity and good Reason that all and every such Laws human made without this Realm or induced into this Realm by the said Sufferance Consents and Custom Your Royal Majesty your Lords Spiritual and Temporal and Commons representing the whole State of your Realm in this your High Court of Parliament have full Power and Authority not only to dispense but also to Authorize some elect Person or Persons to dispense c. So that the Power of granting Faculties at a time when the Prerogative was highest was not executed by Commission from the King by vertue of his Supremacy and Prerogative Royal but was granted to the Arch-Bishop of Canterbury in the manner expressed in that Act. A late Author has stretched this Statute to a Power of dispensing in other
Bracton observes several things which are material to this purpose 1. The first General Exception which is allowed he saith is contra Jurisdictionem Exceptions are either dilatory or Peremptory Some that are only dilatory as to the Action may be peremptory as to the Jurisdicton And these are to be put in ante Litem contestatam ad perimendum Judicium ne procedat And the first of this sort are the Exceptions contra Jurisdictionem contra Personas Judicantium quibus deficit Autoritas judicandi So that he supposes that such who do not deny the Kings Supreme Authority may have a Legal and just Exception against the Authority of a Court. 2. It was an allowable Exceptio Fori then if any Lay-Persons did take upon them to proceed by Ecclesiastical Censures In Ecclesiastical Causes saith he a Secular Judge hath no Cognizance because he hath not the Power of Coercion proper to them viz. by Ecclesiastical Censures therefore he saith in his Causis pertinet Cognitio ad Judices Ecclesiasticos His Reason is Because those only are the competent Judges who have the Power of Coercion proper to the Court. And for the same Cause Ecclesiastical Judges are not to interpose in Secular Causes cum jura sint separata limitata And although the Exemption of Ecclesiastical Persons from the Civil Courts be certainly taken away by the Acts of Supremacy yet it hath been still alledged by our Divines That the Ecclesiastical Censures were still reserved to the Ecclesiastical Functions either in the way of Ordinary or Delegate Jurisdiction If the High Commission did seem to go further then that Power being taken away by Act of Parliament it must return to the Ancient Course 3. There must be a Legal Authority to constitute a Legal Jurisdiction Ad hoc quod rata sint judicia videre oportet a◠Justic. Warrantum habeat à Rege quod judicare possit Si Warrantum non habuerit non valebit quod coram eo actum fuerit quasi coram non suo judice quia primo legi debet Breve Originale postmodum Breve per quod Justiciar constitutus est si nullum omnino habuerit aut si habuerit non tamen ad manum non erit ei parendum nisi it a forte sit quod Breve Originale de Justiciaria sua faciat mentionem Bracton l. 5. De Except c. 14. 1. There must be a Commission from the King which must be read and if either they have it not or it be not at hand the Jurisdiction is not to be owned unless it be mentioned in the Original Writ For Commissions in those days were most commonly granted by Writ saith the Lord Coke But by Bracton's Words it appears That commonly there was an Original Writ and a Commission besides but sometime the Commission was in the Original Writ and then the reading of that was sufficient The Mirror saith That the Jurisdiction may be denied if the seeing or hearing the Commission be denied 2. The Bounds of the Jurisdiction must be expressed and if those be exceeded he saith an Exception lies Which signifies nothing unless the Commission be known 3. The Commission must be according to Law For that is Bracton's standing Rule Nihil aliud potest Rex in Terris cum sit Dei Minister Vicarius nisi id solum quod Jure potest So that a Commission against Law is void in Law. He mentions the Common Saying in the Civil Law Quod Principi placet Legis habet Vigorem and answers it thus Quod Principi placet is not to be understood of his Presumptive but his Legislative Will Animo condendi Jura and with the Advice of his Magistrates the King himself giving Authority which is the Description of an Act of Parliament as we now call it Which he more fully expresses elsewhere Legis vigorem habet quicquid de Consilio de Consensu Magnatum Reipublicae Communi sponsione Authoritate Regis sive Principis praecedente juste fuerit Definitum Approbatum If this were the Ancient Law of England how comes the Exception against a Court to be a Denial of the King's Supremacy unless it be supposed impossible That there should be an Illegal Court with the King's Commission But we may suppose it possible for a new kind of Star-Chamber or Court of Wards to be set up must no Man question the Legality of such a Court without denying the King's Authority For this is a Question in Point of Law. And the King's Authority always goes with the Law and therefore to suppose it to be in any thing against Law is to suppose it to be contradictory to it self But our Author saith It is necessary for every Court to assert its own Jurisdiction Very true and to clear it too if it be liable to a just Exception I am very far from denying the King's Supremacy yet I may be as far from thinking such a Court to be Legal if an Act of Parliament can make a Court Illegal and to say no more for it but that every Court must assert its own Jurisdiction is to level it with the Infamous High Court of Justice which when King Charles the First of Blessed Memory denied their Authority all the Reply was That the Court was satisfied of its own Authority Which could give Satisfaction to no Body else And if this be all can be said for the Legality of it for all that I can see there is just Reason to deny it FINIS A Catalogue of Books Published by the Reverend EDWARD STILLINGFLEET D. D. Dean of St. Paul 's and Sold by Henry Mortlack at the Phoenix in St. Paul 's Church-yard A Rational Account of the Grounds of the Protestant Religion being a Vindication of the Lord Archbishop of Canterbury's Relation of a Conference c. from the pretended Answer of T. C. Wherein the true Grounds of Faith are cleared and the False discovered the Church of England vindicated from the Imputation of Schism of the most important particular Controversies between us and those of the Church of Rome throughly examined the Second Edition Folio Sermons Preached upon several Occasions with a Discourse annexed concerning the true Reasons of the Sufferings of Christ wherein Crellius his Answer to Grotius is considered Folio Origines Britannicae Or the Antiquities of the British Churches with a Preface concerning some pretended Antiquities relating to Britain in vindication of the Bishop of St. Asaph By Edward Stillingfleet D. D. Dean of St. Pauls Folio Irenicum A Weapon-Salve for the Churches Wounds Quarto Origines Sacrae or A Rational Account of the Grounds of Christian Faith as to the Truth and Divine Authority of the Scriptures and Matters therein contained Quarto The Unreasonableness of Separation or an impartial Account of the History Nature and Pleas of the present Separation from the Communion of the Church of England to which several late Letters are annexed of eminent Protestant
own Contracts no man could trust them and consequently all Society with them would be dissolved And whatever Supreme Power may do as to such Acts as are properly its own yet where there is Jus quaesitum alteri as in all Contracts there is that cannot be taken away by it But all this was answered on the other side by the Plenitude of the Popes Power for it was a Contradiction they said to own that and to say That there was any Engagement by Oath or otherwise which he could not Dispense with For as Hank 11 H. 4. 37. says Papa omnia potest And therefore all such Oaths and Promises as limit the Popes Dispensing Power are void in themselves And as to Ecclesiastical Laws or Constitutions they easily resolved all Difficulties about them upon such Principles as these 1. That the Popes have the supreme Power in the Church 2. That the Ecclesiastical Laws were the Popes Laws 3. That it is an inseparable Prerogative in the Pope to Dispense with Ecclesiastical Laws upon Necessity and urgent Occasions 4. That the Pope is the sole Judge of that Necessity 5. That this was not a Trust given to the Pope by Councils or Conclaves but by God and St. Peter and therefore cannot be taken away from her But I shall endeavour to give a clearer Light into this Matter by shewing the several Steps and Degrees how this Dispensing Power came into the World and how it passed from the Ecclesiastical to other Laws when Princes assumed such a Plenitude of Power in Civils which the Popes practised in Ecclesiasticals The first time we read of Dispensations was with respect to the Ancient Canons of the Church and it implied a Relaxation of the Rigour of them not with respect to their Force or binding Power but as to the Penance which Persons were to undergo for the Violation of them And herein the Notion of Dispensing was very different from what the Canonists made it afterwards when they declared it to be a Relaxation of the Law it self so that it should not have that Force upon the Conscience which it otherwise had For a Dispensation with them is a Licence to do that which they cannot lawfully do without it and that with a non-obstante to that which otherwise makes it Unlawful De Jure illicitum fit ex Dispensatione licitum hic est proprie effectus Dispensationis saith Pyrrhus Corradus who gives a large Account of the Practice of Dispensations in the Court of Rome which conclude with a non-obstante to any former Constitutions or Canons of Councils But no such thing can be found in the Ancient Practice of the Church because the Popes themselves were then believed to be under the Canons But when it was supposed That the severe Execution of the Canons would rather hinder than advance the Good of the Church the Governours of it thought they had sufficient Authority to abate the Rigorous Execution of them As about the Times of Penance the Translation of Bishops from one See to another the Intervals of Orders and such like But the Popes then pretended to be strict Observers of the Canons when the particular Bishops took upon them to Dispense with the Execution of them as appears by Ivo's Preface to his Collection of Canons where he distinguisheth the Immoveable or Moral Precepts from the Canonical which he calls Moveable In the former saith he no Dispensation is to be allowed But in those things which only concern Discipline the Bishops may Dispense provided there be a Compensation i. e. That the Church's Interest may be better secured or advanced thereby as he there discourses at large And his Rule is Ibi Dispensatio admittenda est ubi rigor periculosus est But by this means the Severity of the Primitive Discipline was quite lost The Bishops of Rome observing this thought it a proper time for them to appear zealous for the Ancient Canons which gained them a great Reputation in the World and by this means the Custody of the Canons was looked on as their particular Province Which they improved so well that at last they turned the Guardianship of the Canons into a Power over them and then they found Fault with the Bishops Dispensing with them for another Reason viz. Because the Dispensing Power was a Prerogative of the Roman See and Inferior Bishops could act no farther in it than they had Authority from it We find that in S. Bernard's time the Pope did take upon him to Dispense too far to his great Dissatisfaction for by his Dispensing Power he saith he overthrew the Order of the Church Murmur loquor saith he querimoniam Ecclesiarum The Pope dispensed with the Ecclesiastical Laws in Exemptions of Abbots and others from that Subordination they stood in to their proper Superiors He saith He could not see how this Dispensing Power could be justified You do indeed shew a plenitude of Power but it may be not of Justice you shew what you can do but it is a Question whether you ought or not and you ought to consider First Whether it be lawful then whether it be decent and lastly whether it be expedient At last he allows a Dispensing Power in two Cases Urgent Necessity and Common Good otherwise he saith It is not fidelis Dispensatio sed crudelis Dissipatio an overthrow of all Order and Government In one of his Epistles he speaks sharply against getting a Dispensation to do that which it was not lawful to do without one And he thinks he hath disproved it by invincible Reason For a Licence from the Pope can never make that Lawful which without it were Unlawful When the Practice of the Dispensing Power grew more common there were two great Questions raised concerning it Whether if a Dispensation were granted without Just Cause it were Lawful or not And Whether if it were not Lawful yet it was valid There were some who flattered the Dispensing Power so much that they allowed it in all Cases whether there were a just Cause or not These were the high-flown Canonists who resolved all Laws into Will and Pleasure But others who allowed a Dispensing Power upon a Just Cause yet thought it repugnant to the Original Design of Government for those who are entrusted with Care of the Laws to Dispense with them without such a Cause as answers the End of Government And some went so far as to deny any Validity in a Dispensation granted upon Pleasure for as an unjust Law hath no Force so said they an unjust Dispensation of a Good Law hath none Upon this Point two great Schoolmen differ Suarez whom the Lord Chief Justice Vaughan commends for his Learning in this Matter goes upon these Grounds 1. That a Prince is not Dominus sed Dispensator Legum although the Force of a Law depends upon his Authority and therefore in Dispensing with a Law he doth not act by Absolute Power but by Administration For
he is not Lord over the Community but Governour 2. That for him to Dispense in a Law made for the Community without a just Cause is not only malum quia prohibitum sed ex se ex natura rei semper malum Therefore Suarez was far from thinking a Prince might Dispense with any thing that was not malum in se for he makes it to be so for him to dispense with a malum quia prohibitum if it be prohibited by a Law made for a Publick Good and there be no just Cause for it 3. That although a Prince sins in Dispensing with such a Law yet his Dispensation holds as to the Force of the Law which he supposes to depend on the Will of the Prince and therefore his Will being altered the Obligation ceaseth as to the Persons Dispensed with 4. That although such a Dispensation holds as to the Law yet he thinks a Prince bound in Conscience to Revoke such a Dispensation because it is unlawful for him to persist in such a Will it being repugnant to the Common Good and the Obligation of his Duty 5. That if such a Dispensation be to the Injury of a third Person then it is void in it self as being repugnant to Justice Vasquez saith They are all agreed That no Prince hath a Power to Dispense with his Laws according to his Pleasure or because they are his Laws But he saith There is a Dispute Whether an unlawful Dispensation be valid or not And he thinks not and that a Man's Action after the Dispensation is as faulty as if there had been none His Reason is because a Prince is bound by his own Laws so that he cannot Dispense with himself as to the Obligation of them for if he could at Pleasure Dispense with himself he could never be bound for how can a Man be bound to keep a Law in which he can Dispense with himself when he pleases And if he cannot Dispense with himself much less with any under him Having thus endeavoured to clear the Nature and Original of the Dispensing Power I now come 2. To the Reason assigned by Sir E. Coke from the Year Books why the King may Dispense with Laws because they be mala prohibita and not mala per se. My Lord Vaughan said Right concerning it That this Rule hath more confounded Men's Judgments on this Subject than rectified them Which I shall make appear by shewing I. That it alters the Frame of our Government II. That it takes away all Security by Law. III. That it contradicts the Sense of our Nation in former Ages IV. That the Rule is contrary to the Precedents in Law. I. That it alters the Frame of our Government For it goes upon a very false Ground viz. That the King may Dispense with any thing which is not Evil in its own Nature or antecedently to any Human Laws which is to suppose the whole Legislative Power to be lodged in the Person of the King For all who understand these Matters do agree That a Power to Dispense with Laws is the same with a Power to make them Dispensare hoc est lege solvere is solus potest qui ferendae abrogandaeque leg is potestatem habet saith H. Grotius Suarez saith He hath the Power of Dispensing qui legem tulit quia ab ejus voluntate potentia pendet Vasquez That the Dispensing Power lies in him qui habet Potestatem condendi abrogandi legem Pufendorf That none can Dispense with a Law but such as have the Power of making it But we need no Authorities in this Matter For to Dispense in the Sense it is here taken is to take away the Obligation of a Law and whoever takes it away must have the Power of laying it on And there is no Difference between the Dispensation with a Law and the Abrogation of it but that a Dispensation is an Abrogation of it to particular Persons while others are under the Force of it and an Abrogation is a General Dispensation that being no more than a Relaxation of the whole Law to those Persons who were bound by it before But if a part of the Law be taken away as to the whole Community then it is called a Derogation of it But if the Law be Relaxed only for a limited Time and under certain Conditions then it is not an Abrogation but an Indulgence or Suspension of the Law. To Dispense with a Law is more than to give an Equitable Sense or a Favourable Interpretation of a Law for he that Inteprets a Law supposes his Interpretation to agree with the Sense and Design of the Law he that Dispenses owns that which he dispenses with to be against the Intention of the Law but that he hath Power to take away the Force of it so far as he thinks fit He that saith Thou shalt not kill doth not reach to Legal Executioners of Justice interprets the Law according to Reason and Equity But when God said to Abraham Go and Sacrifice thy Son he must be supposed by virtue of his Supreme Authority to Dispense with the Law in his Case so as to make that Lawful upon his Command which would not have been so without it Some will not allow this to be called a Dispensation but an alteration of the Matter of the Law but when that Alteration comes from the Authority of the Law Makers it is the same so that to Interpret a Law is an Act of Discretion and Judgment but to Dispense with it of Authority and Jurisdiction And none can therefore Dispense in the Law of God but he that made it all that the Wisest and greatest Men can justly pretend to is no more than to give the true Sense of it and it is intolerable Prsumption for any Creature to pretend to more An Equitable Sense as to Human Law is not always that which seems to be most favourable to those who go against the Letter of it but that which most enforces the End and Design of the Law although it be not comprehended in the Words of it If a Law mentions a Crime of a lesser nature in regard of Circumstances and in regard of those Circumstances promises some Favour as Benefit of the Clergy it can be no Equitable Sense to extend it to such Acts which have worse Circumstances because the Ground of the Favour was the extenuation of the Fact by the Circumstances so that the chief Rule of Equity in the Interpretation of a Law is to attend to the Intention and Design of it more than to the bare Words The Intention and Design of the Law is not to be measured by Particular and Accidental Cases wherein some Inconveniencies are to be born but by the Publick and General Good which more than makes amends for them which is the Reason of that Maxim Better a Mischief than an Inconvenience which is false unless taken in such an Equitable Sense There are