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cause_n	authority_n	king_n	time_n	1,485	5	3.4894	3	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A26174	The Lord Chief Justice Herbert's account examin'd by W.A., Barrister at Law, ... ; wherein it is shewn that those authorities in law, whereby he would excuse his judgment in Sir Edward Hales his case, are very unfairly cited and as ill applied.	Atwood, William, d. 1705?	1689 (1689)	Wing A4176; ESTC R2780	39,888	80

the thing lawful nor could this in the least be inferr'd from the other because however an Act may be made void or tortious Indeed in the Reign of R. 3. whose Character blemishes the Judgments of his time it was held by all the Judges in the Exchequer-Chamber that the King might license the shipping of Wooll elsewhere than at the Staple yet even they were not of Opinion that the License made the thing lawful for then the Discoverer could not have had his share which they agreed that he ought to have and so the License was only as far as it concern'd the King. They also setled the other Point which before was a Doubt That a Pardon before an Information brought would defeat the Informer But then the Authority of the first Point is suspended by a Doubt remaining before all the Judges afterwards assembled upon a rehearing of this Cause in a more setled time Indeed they agreed the other of an Information after a Pardon but hitherto there is no manner of Proof of any Case wherein the King by his Dispensation could discharge the Penalty given not only to himself but also to an Informer who has his Action given by Statute But for this we must take a Leap downwards as far as 13 Jac. 1. which we may ballance with the 7th of his Reign when it is held by Lord Cook That where a Statute concerns the Benefit of the King alone he may dispense with it by a Non obstante And BY THE COURT that where it concerns the Benefit of the Subject the King cannot dispense 7. Whereas our Chief Justice thinks that a Statute's providing against Non obstante's shews that the King could otherwise have dispens'd with the Act by a Non obstante it is not onely unconcluding because it might be no more than an Argument of an Abuse of the Law but turns very strong against him For admit the Resolution of the Judges 2 H. 7. were as he contends yet he who makes so much of a Concession of the Commons of England assembled in Parliament when he thinks it of his Side ought surely to yield that the Judgment of King Lords and Commons is of uncontrollable Authority Wherefore when not only one but several Parliaments provide that all Non obstantes shall be void is it not plain that their Judgment was that such Non obstantes could not be set up by any Resolution of Judges And for this we have the Judgment of King Lords and Commons and that of but late days That even where a Grant is made to the King where 't will be said he is solely entrusted for the Publick Good yet it may be out of his power to defeat it by a Non obstante This appears by the Statute 19 Car. 2. c. 8. which provides That no Letters Patents granted to any Person of Exemptions from Subsidies c. shall free them from the Charges of any Sum granted by that Act and all Non obstantes in Letters Patents made or to be made in bar of any Act or Acts of Parliament for the Supply or Assistance of his Majesty are thereby declared to be void and of none effect And even where Statutes have not expresly provided against Non obstante's tho' the Statutes were such as restrain what many take to be the King's Prerogative yet if we receive the Sense of Lords and Commons the King has no Prerogative warranting Non obstante's to them as appears by the Articles against King Richard the Second one of which is For that the King contrary to the Laws and Wills of the Justices suffer'd Sheriffs to continue longer than one Year c. This were enough to set aside all Pretences taken from Calvin's Case tho' as Sir Edward Herbert pleasantly suggests it were resolv'd there That that was resolv'd 2 H. 7. which was never mention'd till after the Resolution Here is the Authority of Lords and Commons in competition with that of Mercenary Judges And if the Concessions of the Commons alone assembled in Parliament are of weight with him I know not why their Denials ought not as well to be urg'd against him which if we may do not onely the Fictions and loose Reasonings in Calvin's Case but the main Resolution there may be justly call'd meer Court-Law Such I am sure it is that the honest House of Commons 4 Jac. 1. would not bear it and any one that reads the Arguments of those Learned Men who manag'd the Conference with the Lords upon the Question of the Union of the two Kingdoms may easily see how inexcusable the Judges of that time were to proceed to the Judgment in Calvin's Case after they had been so enlightned Nor could they but know that the then Parliament was broke up because they were not so complying as the Judges shew'd themselves both then and afterwards But they secur'd their Cushions by it while Sir John Bennet Father of the present Lord Oswalston lost his in the Prerogative-Court and had a swinging Fine impos'd upon him into the Bargain several Years after upon pretence of Extortion but as I am well inform'd the real ground was his disrellishing Speech in Parliament upon this Subject 'T is well known some Princes us'd to have good Memories that way Manet altâ mente repostum c. 8. Non obstante's having no other Foundation than in the Encroachments of Princes and Servility of Judges especially if we except Cases concerning the King alone they ought not to be strain'd to any new Case The Advice of Bracton will rise up in Judgment against such Men who tells them If such things never hapned before and the Judgment is without Light from former Cases and difficult let it be adjourn'd to the Great Court. According to which Adjournments to ensuing Parliaments have been frequent in former days when there were more Learned Judges and that as often for the weightiness of the Matter as intricacy of the Points 9. But for the closing Aggravation Whereas our Chief Justice denies all indirect means for procuring Opinions and stands upon his Innocence challenging the World to lay any thing of that kind to his charge I think by this time few will the less suspect him because of his Assurance if either Threats or Sollicitations can be prov'd upon him the World will judge either of them indirect Means and I am much misinform'd if both cannot be justly charg'd If after all he can excuse himself with renouncing Infallibility and making Asseverations of keeping to the clear Dictates of his Conscience I must say Judges in former Ages have had hard luck and been made Examples to little purpose King Alfred would lose the Reputation of his Justice in hanging above thirty Judges and Parliaments have been very barbarous to proceed against others as Traytors who yet either were so ingenuous to confess their Faults or at least not so provoking as to

this Non obstante Matthew Paris calls a detestable addition against all Reason and Justice and when the year after King Henry urg'd the example of the Pope for Non obstantes The Prior of Jerusalem says God forbid you should use this unpleasant and absurd word as long as you observe Justice you may be King and as soon as you violate it you will cease to be King. Which shews how little Foundation in Law it then was thought to have and what the whole Nation thought of the Pope's use of it may be seen at large in Matthew Paris and Mr. Prin's Animadversions on the 4 th Institute Farther the Reasons given why the King ought to have this Power fail here upon many accounts 1. In that the Interest of the whole of which the Legislators are the best Judges when they make the Law without Exception ought to outweigh all private Inconveniences 2. The Law has provided a more certain and equal Remedy having taken as sufficient Care for the meeting of Parliaments once a Year at least and I may say sitting too as it has for the sitting of the Common Courts of Justice as appears from the several Statutes in Print and others in the Rolls which avoid the common Cavil upon the words Oftner if need be And these were like the famous Triennial Act Provisions for the greater certainty of meeting so often at least but no Recessions from the old Law which as appears both by the Mirrour and the Life of King Alfred was for the Great Council to meet twice a year at London 3. The great Reason assign'd in the Latin Quotation from the Lord Cook Propter impossibilitatem praevidendi de omnibus particularibus which is after distinguish'd as to Person Time and Place can by no means be applied to the Case in question For 1. The Law was made but very few Years before their Lordships Resolution and not grown more inconvenient by length of time to any particular Person than it was at the making of the Act. 2. The Law-makers had in their immediate prospect every particular Person of the Romish Communion and the Time when and Place where the Danger would happen if any such were Commissioned Let us now see what help he can have from his second Quotation from the Lord Cook which is 7 Rep. f. 73. but he intends I suppose f. 37. and would have it believ'd that it was the Opinion of all the Judges of England 2 Jac. 1. That the King may dispense with any particular Person that he shall not incur the Penalty of the Statute tho' it be an Act made pro bono publico and that this is a Trust and Confidence inseparably annex'd to the Royal Person of the King in which 1. He again overthrows his Distinction of malum in se and prohibitum making that Power at large in relation in any Statute pro bono publico 2. He manifestly perverts the Lord Cook 's sense whose Words are When a Statute is made pro bono publico and the King as Head of the Commonwealth and the Fountain of Justice and Mercy is by all the Realm trusted with it this is a Trust and Confidence inseparably adjoyn'd and annex'd to his Royal Person in so high a Point of Sovereignty that he cannot transfer it to the disposition or power of any private Person or to any private Use for this was committed to the King by all his Subjects for the Publick Good c. But true it is that the King can upon any cause moving him in respect of Time Place or Person c. make a Non obstante to dispense with any particular Person that he shall not incur the Penalty of the Statute Where the sole Question was of transferring over a Penalty granted to the King as entrusted by all the Realm to see the Statute put in execution by inflicting the Penalty This Trust is adjudged inseparable and not to be transferr'd over but that however the King may dispense with the Penalty granted to himself Upon which I must say our Chief Justice has made a very foul Stretch for what is this to the Informer's Part concerning which the Question before him was But surely there is a mighty difference between these two Propositions Where the Subjects have entrusted the King with a Statute made for the Publick Good this Trust is inseparable and cannot be transferr'd to another but the Statute so entrusted may be dispens'd with which is all that is to be gather'd from the Lord Cook and this Tho' an Act be made for the Publick Good yet the King may dispense with it and this is a Trust and Confidence inseparably annex'd to the Royal Person of the King which is Sir Herbert's perverse Comment In short Lord Cook says Where the King is entrusted with the Execution of a Statute made for the Publick Good he may dispense with that Statute Sir Edward Herbert says He may dispense with any Statute made for the Publick Good. Upon which 't is to be observ'd That the Question in the Lord Cook was not of Dispensing but granting over the Penalty which Penalty he says is not to be transferred over The other would make it of Dispensing and that that Power is inseparable and not to be transferr'd so apparently changes the State of the Question His next Step is to the Year-book of H. 7. f. 11 12. in which he leaves us to seek the Year which is 11. This he calls the first and great Case which he cites wherein the King 's Dispensing Power is described and limited There is a diversity says the Book between malum prohibitum and malum in se as a Statute forbids any Man to coin Money and if he does he shall be hang'd this is malum prohibitum for before the Statute Coining Money was lawful but now it is not so and therefore the King can dispense with it So if a Man ship Wooll in any place but Calice it is malum prohibitum because it is prohibited by Act of Parliament But that which is malum in se the King nor no other Person can dispense with as if the King would give a Man power to kill another or license one to make a Nusance in a High-way this were void and yet the King can pardon these things when they are done Upon this Case 't is observable That the Power of Dispensing is here asserted in relation to Things and not Persons Wherefore according to this taken in Sir Herbert's Latitude the King may grant Dispensations to all in general where the Matter is only malum prohibitum whereas he himself owns that the nature of a Dispensation is particular and given to particular Persons by name 2. Many things in Magna Charta nay the most are but mala prohibita and so Magna Charta its self may be dispensed with when he himself owns that the King cannot dispense with one Tittle of Magna Charta And

THE LORD CHIEF JUSTICE Herbert's ACCOUNT EXAMIN'D By W. A. Barrister at Law. Wherein it is shewn That those Authorities in Law whereby he would excuse his Judgment in Sir Edward Hales his Case are very unfairly cited and as ill applied Vendidit hic auro patriam Dominumque potentem Imposuit leges fixit pretio atque refixit LONDON Printed for J. Robinson at the Golden Lion in St. Paul's Church-yard and Mat. Wotton at the Three Daggers in Fleetstreet 1689. THE Lord Chief Justice HERBERT's ACCOUNT EXAMIN'D WEre it not the Reproach of our Times to have had Men advanc'd to Courts of Judicature for other Merits besides Integrity and Learning in the Laws of their Country it might seem a great piece of Vanity in me to answer a Book stamp'd with the Name and Authority of a Chief Justice Yet perhaps I might be thought not without cause to take this as my more immediate Province having been the first of the Profession who ventur'd in Publick Companies to shew how wofully that innocent Book-Case 2 H. 7. in relation to Sheriffs has been mistook or wrested to serve for Colour to that hasty Judgment in Sir Edward Hales his feigned Case Wherefore how needful soever the Chief Justice may find it to make Protestations of his Sincerity this may supersede any such from me Nor would I willingly call his a Protestation contrary to apparent Fact especially considering that weakness of Judgment manifested by this Defence did he not give too great occasion for it 1. From the large Steps which he took to precipitate and as I am well assured to sollicit that Resolution 2. The manner in which he delivered it widely differing from what he now prints 3. The unfairness of his present Quotations And 4. The unhappiness not to say worse of those Instances which he is pleased to give of his Sincerity I shall not dispute or repeat his Lordships State of the Case But the Question upon it being Whether the King may by his Prerogative dispense with the Statute 25 Car. 2. c. 2. requiring all Persons in any Office under the King to take the Test against Popery I shall enquire 1. Whether those Books which he relies on as Authorities for his Judgment give any colour to it 2. Whether admit they did they would countenance the Resolution as he delivered it 3. Whether those Instances which he offers of his Sincerity may reasonably be taken for such 4. Whether he in any measure clears himself from the Imputation of being highly criminal His Lordship like a Master-Disputant begins as he thinks with a Definition of a Dispensation which he says is given by the Lord Cook Dispensatio mali prohibiti est de jure Domino Regi concessa propter impossibilitatem praevidendi de omnibus particularibus dispensatio est mali prohibiti provida relaxatio utilitate seu necessitate pensatâ Where I must say he very unlearnedly clogs the Definition of a Dispensing Power with the Person in whom 't is suppos'd to be lodg'd nay and the Reason too why it should be so which neither the Lord Cook nor Common Sense gives him any Warrant to bring into the Definition However it seems according to this a Dispensing Power in some Case or other is vested in the King which yet is far from proving any thing to his purpose for either the King may in all Cases dispense as to particular Persons and then his Distinction of malum prohibitum malum in se falls to the ground or else it reaches only to those Cases in which the Judgment or Flattery of Judges have ascrib'd it to him He adds out of the Lord Cook as an Enlargement upon what he calls the Definition Inasmuch as an Act of Parliament which generally prohibits any thing upon a Penalty that is POPULAR OR ONLY GIVEN TO THE KING may be inconvenient to divers particular Persons in respect of Person Time or Place for this purpose the Law gives a Power to the King to dispense with particular Persons Where the Lord Cook manifestly restrains the Penalty to such as is given the King as Head of the People upon which account only he calls it Popular nor indeed can be thought to take in what is granted to any Subject that will inform it being mention●d without distinction whether before or after an Information commenced And that the Lord Cook 's Words here ought not to be strained farther is yet more evident from the Case of Penal Statutes on which Sir Herbert's Misrepresentations will occasion my more particular Remarks As Sir Edward considering what Interest he has serv'd may be presum'd something conversant with Priests and Jesuits He might among others of less use have consulted the Learned Suarez who after the Definition which he makes to be Legis humanae relaxatio in a distinct Chapter shews with whom the ordinary Power of Dispensing which he distinguishes from that which is delegated is lodged where he says Certum est eum habere ordinariam potestatem dispensandi qui legem tulit And he gives the Reason Quia ab ejus voluntate potentiâ pendet So that none can have this power but he or they who are vested with the Legislative exclusive of others or such as have it delegated from thence That the King has not the Legislative exclusive of others is what I have formerly prov'd at large and it lies on the other side to shew that the Dispencing Power bas been delegated to him Yet thus much may be said on the contrary 1 st That the King could not in Law be presum'd to have exercis'd such a Power by himself for that the ancient Law provided that he should have a Counsel chose in Parliament who as the Charter affim'd to be declaratory of the ancient Law and sworn at the Coronation of Hen. 3. has it were sworn quod negotia Domini Regis Regni fideliter tractabunt sine acceptatione personarum omnibus justitiam exhibebunt and that it was accounted the Law long after that appears by the impeachment of Roger Mortimer 4o. E. 3. part of which was that Whereas it was ordain'd in the Parliament next after the Kings Coronation that four Bishops four Earls and four Barons should stand by the King PUR LUY COUNSEILLER without whose assent NUL GROS BUSOIGN NE SE FEUST Nevertheless Mortimer would undertake to manage all by himself accroaching Royal Power and it is easily to be shewn that such a Counsel was in use or continually insisted on as the right of the Kingdom from the time of the Charter confirm●d 28. Hen. 3. till the end of the Reign of Hen. 6. 2. A Power to grant Non obstantes to Statutes could not have been a right in the Crown at Common Law for we have clear Proofs of its odious and condemn'd beginning from the sulpureous Fountain of Rome as an honest Popish Lawyer confest with a deep sigh 35 Hen. 3.