in Hill. 11 Jac. B. R. Dominus Rex and Allen against Tooly in the Second Part of Bulstrode's Reports 186 to 191. in an Information brought upon the Statute of 5 Eliz. for using the Trade of an Upholsterer in which he had not served as an Apprentice Seven Years The Defendant pleaded That he was a Freeman of London and that by the Custom of London a Freeman might use any Trade and he alledged that the Custom was confirmed per Regem in Parliamento It was holden first that there can be no good Act of Parliament without the three Consents viz. Of the King Lords and Commons 2. That tho' divers Acts of Parliament do not specifie these Three Assents but only mention the King as Dominus Rex Statuit and as it is in the Prince's Case Dominus Rex de Communi Concilio Statuit and the like Yet when the Party will Plead he ought to Plead it according to Law and to set forth all the Assents that is of the King Lords and Commons and this was the Opinion of the whole Court. Now Pleading is an exact setting forth of the Truth We are not to raise Arguments from Forms of Speaking but rather from exact Pleading and the Resolutions of Judges And tho' Magna Charta in the stile seems to be spoken by K. H. 3. as by the word concessimus yet the Act of 15 E. 3. c. 1. recites that it was made a Law by the King Lords and Commons and that what is said to be granted was but their former Right Lambert's Archion 267 c. I hear that in speaking to the Case of Sir Edward Hales it was observed that by this Act of 25 Car. 2. there is no incapacity or disability at the first and upon the admission to the Office put upon any Person from taking of an Office but that he is well admitted to it and the Grant is good and that time is given to take the Tests and if by the times given he fail to take them then he is to be disabled and the Grants are to become void but not before Like a Condition subsequent that defeats the Estate which yet was well vested and then before the Grant is defeated and the Party become disabled the King's Dispensation steps in and prevents the Penalty and Disability And herein it was said it differs from the Case of Symony and buying of Offices where the Interest never vested but the Person was first disabled There is indeed a difference but none that is material for it is all one whether the Party be disabled to take or whether having well taken and been well admitted he is afterward disabled to hold and retain by not performing the Condition For when he is first admitted it is sub modo and under a Condition that if he fail to perform what the Law requires his Office shall be void Another Argument as I hear it reported was rais'd from the King 's being a Soveraign Prince and from thence it was inferred that he might dispense with Laws that are Poenal upon necessity whereof he is the sole Judge The ground of this Argument namely That the King is a Soveraign Prince if it serve for the Point in question it may also extend a great way further then to this question we have before us it is hard to limit the extent of it it seems to speak that we must obey without Reserve The word Soveraign is French and in Latin is Supremus id est qui in alios potestatem habet The Correlate whereof is Subditus or a Subject and is attributed frequently to some sorts of Subjects especially to the Heads or Superiours of Religious Orders But among us tho' now frequently used in our humble Addresses to the King or in our reverend mention of him yet we find it very rarely if ever used in our ancient Acts of Parliament or in our Law Books I find no mention of the very word among the many Attributes and Titles ascribed to Kings and Princes in Mr. Selden's Titles of Honour He hath that which is Synonimous as Supream Monarch as it signifies in opposition or in distinction to Princes that are subordinate and feudatory such as Tacitus speaks of that the Romans when their Government was Popular had instrumenta servitutis Reges But properly he is a King that is a Soveraign and hath no Superiour upon Earth According to Martial Rex est qui Regem Maxime non habeat And such we freely and cheerfully acknowledge the King to be and the best and most of his Subjects do swear that he is the only Supream Governour of this Realm and of all other his Dominions as well in all Spiritual or Ecclesiastical as Temporal Causes and that no Foreign Prince hath any Power within this Realm And I wish that all the rest of his Subjects would heartily take this Oath but this among others is that which Sir Hales's Dispensation extends to Yet how from hence it can be argued that the King can dispense with his Laws I do not see I mean Laws of the same nature as that we have now before us Therefore those that used this Argument surely meant the word of Soveraign in another sence viz. Absolute Solutus a legibus It they mean by Soveraign a Prince that is absolute and solutus a legibus and they must understand it so or else I do not see how it is pertinent to the present Argument this is of a mighty Consequence and ought to have been well considered before it had been used I find the word in this sence as I take it propounded in an addition or saving to the Petition of Right 3 Car. 1. viz. Not to infringe Soveraign Power But it was not liked and upon Reasons given at a Conserence those that did propound it were satisfied to lay it aside It may be read in the Memorials of the English Affairs fol. 10. If the word Soveraign be meant in this sence it is oppos'd by all our ancient Authors Judges and others by plain and express Language whose very Writings I have before cited and I will but only touch upon them again Fleta says Superiorem non habet Rex in Regno nisi Deum Legem per Legem factus est Rex This fully expounds the word Sovereign Both Fleta and Bract. and Sir Gilbert Thornton who was Chief Justice in Edw. the First 's time take notice of that Jus Caesareum or Lex Regia as it is called by the Civilians Nec obstat quod dicitur quod Principi placet Legis habet vigorem For it never was received in England but in a restrained sence And with this agrees the ancient Coronation Oath That the King shall hold the Laws and Customs of the Realm which the People have chosen But King H. 8. with his own hand corrected the old Oath to the effect following viz. That he shall hold the Laws and Customs of the Realm not prejudicial
no respect of persons and as before I observ'd from Aristotle is a Mind without Affection Now the nature of a Dispensation is to favour some to set some at liberty from the obligation of the Law and is a kind of praeterition of others leaving them still under the tye and obligation and obnoxious to the Penalty if they transgress Whereas in a well govern'd Kingdom there ought to be Unum pondus and Una Mensura in distributive as well as commutative Justice It was part of the Oath that was taken by King William the First who is commonly stiled the Conquerour that he would Aequo jure Anglos Francos tractare Which Oath favours nothing of a Conquest nor does it run in the stile of a Conquerour And it is the Oath of a Judge at this day That he shall truly serve the King and his People c. That he shall do Right to every Person notwithstanding the King's Letters that is notwithstanding any Non Obstante It is a Maxim in Law Quo modo aliquid Ligatur eo modo dissolvitur Now a Law being made by Consent of all should not be Dissolv'd again but by the like Consent that is by Authority of the King and Parliament who have the Legislature Dr. Willet in his Synopsis Papismi makes a Difference between a Toleration and a Dispensation That of Moses in case of Divorces was a Tolleration A Dispensation says he must be of as high a Nature as the Institution None but the Law-Maker can Dispence with the Law not he that hath but a share in the Legislature And from hence I shall take occasion to assert and shall endeavour to make good my Assertion by Law that the Lawful Power of Dispensing with an Act of Parliament that concerns the Publick is only in the hands of those that have the Legislative Power I confine my self to such Acts only as concern the Publick as the present Act we have now to do with does in a very high degree And therefore I hold that none can Dispence with such a Law but the King and Parliament and such as they entrust with it I shall begin to prove this by an Act of Parliament which is the highest Resolve and Authority in our Law It is in the Preamble of the Act of 25 Hen. 8. c. 21. the Statute of Dispensations and the Preamble of a Statute is Law as well as the enacting part or body of the Law. It is in effect a Declaration of what was Law before at least it shews the Opinion and Judgment of the Law-Makers which is of high Authority It first utterly disowns and renounces the Pope's long usurped Claim and Pretence of Dispensing with any Person within this Realm even in Matters Spiritual tho' by him practis'd for many Years I desire to observe upon this that long usage by an Usurpation gives no lawful Right But I would further observe too that where it hath been long admitted and used it is in such Case reasonable for none but the Supream Court to undertake it and declare against it In the next place this Act of Parliament does affirm That this Realm of England is subject to no Laws but such as have been made and taken by sufferance of the King and his Progenitors and the People of this Realm at their free Liberty by their own Consent to be used amongst them and have bound themselves by long Use and Custom to the observance of them 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 This shews the Original of our Common Law. This likewise clearly proves that whatever is imposed upon the People without their Consent hath not the Authority of a Law And it cannot be shewn that ever the People did consent to this Power or Practice of Granting Dispensations But it plainly appears that our Acts of Parliament are so far from approving or countenancing of it that they have often fenced against it altho' in vain hitherto And tho' the Usage have been very Ancient as I have shewn yet that gives it no lawful Authority for this Preamble declares those only are Laws binding to the People that have been Originally establish'd as Laws The Word Originally refers no doubt to our very Primitive Institution which is Common Law or at least to a time so ancient as that the Original cannot be traced out nor shewn and then it shall be presum'd to be the Common Law. Now I have I hope clearly evinced that the very first invention and practice of Dispensations by the Bishop of Rome is not time out of mind nor can the Usage of it here by imitation of the Pope reach up to a Prescription in the judgment of our Law nor by the Rules of it For Sir Edward Cook in his first Instit. Fol. 115. treating of a Prescription and the nature of it says That if there be any sufficient proof of Record or Writing to the contrary albeit it exceed the Memory of any Man living yet it is within the Memory of Man in a legal sence it had its Original since the beginning of the Reign of our King Richard the First that is in the time of King John and King Henry the Third But that which makes it much the stronger is that this Declaration of the King and Parliament against such Dispensations and Laws introduc'd without the King and Peoples Consent does conclude with Negative Words viz. and not otherwise and is exclusive of all other that is that nothing is Law without their Consent And this Statute of Dispensations proceeds further to shew where the true and lawful Power of Granting Dispensations is vested in these words viz. It stands with natural Equity and good Reason that in all Laws humane within this Realm the King and both Houses representing the whole State of the Realm have full Power to Dispense and to Authorize some Person to Dispense with those and all other humane Laws of this Realm and the same Laws to abrogate annull amplifie and diminish as it shall be seen unto the King the Nobles and the Commons of the Realm present in Parliament meet and convenient for the Wealth of the Realm and then it does dispose of the Power of Dispensation in Matters Ecclesiastical to the Archbishop of Canterbury some whereof are to be confirm'd by the King and others that may be good without the King 's confirming And altho' the body or enacting part of this Statute extend only to Causes Ecclesiastical yet the Preamble does reach expresly to all humane Laws This Statute of 25th of Henry the Eighth was made in the time of such a King as we all know by reading our Histories stood highly upon his Prerogative and would never have consented to such a Declaration concerning the Power of Dispensing if it had been a special Prerogative in the Crown and had there
AN ENQUIRY INTO THE Power of Dispensing WITH PENAL STATUTES Together with Some Animadversions UPON A Book writ by Sir EDW. HERBERT Lord Chief Justice of the Court of Common Pleas ENTITULED A short Account of the Authorities in Law upon which JUDGMENT was given in Sir Edward Hales 's Case By Sir ROBERT ATKYNS Knight of the Honourable Order of the Bath and late one of the Judges of the Common Pleas. Digna vox est Majestate Regnantis Legibus Alligatum se esse Principem profiteri LONDON Printed for Timothy Goodwin at the Maiden-head against St. Dunstan's-Church in Fleet-street 1689. ADVERTISEMENT January the 21st 1689. TO Morrow will be Published by Tim. Goodwin at the Maiden-head against St. Dunstan 's Church in Fleet-street The Power Jurisdiction and Priviledge of PARLIAMENT And the Antiquity of the House of Commons asserted Occasioned by an Information in the King's-Bench by the Attorney General against the Speaker of the House of Commons As also a Discourse concerning the Ecclesiastical Jurisdiction in the Realm of England occasioned by the late Commission in Ecclesiastical Causes By Sir Robert Atkyns Knight of the Honourable Order of the Bath and late one of the Judges of the Court of Common-Pleas AN ENQUIRY INTO THE Power of Dispensing WITH Penal Statutes 25 CAR. II. Cap. 2. An Act for preventing Dangers which may happen from Popish Recusants FOR preventing Dangers which may happen from Popish Recusants and quieting the Minds of his Majesties good Subjects Be it enacted c. That every person that shall bear any Office Civil or Military c. or shall have Command or Place of Trust from or under his Majesty c. within the Realm of England c. shall personally appear in the Court of Chancery or of the Kings-Bench or at the Court of Quarter-Sessions in that County where he shall reside within three Months next after his Admittance into any of the said Offices and there in open Court take the several Oaths of Supremacy and Allegiance and shall also receive the Sacrament of the Lord's Supper according to the Usage of the Church of England in some Parish-Church upon some Lord's-day immediately after Divine Service And every the person aforesaid that doth or shall neglect or refuse to take the said Oaths and the Sacrament in the said Courts and at the respective times aforesaid shall be ipso facto adjudged uncapable and disabled in Law to all intents and purposes whatsoever to have occupy or enjoy the said Office or Employment and every such Office and Place shall be void and is hereby adjudged void And every person that shall neglect or refuse to take the said Oaths or the Sacrament as aforesaid and yet after such neglect or refusal shall execute any of the said Offices after the said times expired wherein he ought to have taken the same and being thereupon lawfully convicted upon any Information c. in any of the King's Courts at Westminster or at the Assizes every such person shall forfeit 500 l. to be recovered by him that shall sue for the same And at the same time when the persons concerned in this Act shall take the said Oaths they shall likewise subscribe the Declaration against the Belief of Transubstantiation under the same Penalties as by this Act is appointed Paschae 2 JAC. II. In the King's-Bench Arthur Godden Plaintiff in an Action of Debt of 500 l. grounded upon the Act of 25 Car. 2. for preventing Dangers from Popish Recusants Sir Edward Hales Bar t Defendant THE Plaintiff declares That the Defendant after the First day of Easter Term 1673. sc. 28 Nov. 1 Jac. 2. at Hackington in Kent was admitted to the Office of a Colonel of a Foot-Regiment That being a Military Office and a Place of Trust under the King and by Authority from the King. And the Defendant held that Office by the space of three Months next after the 28 Nov. 1 Jac. 2. And from thence till the time of this Action begun he was and still is an Inhabitant and Resident of the Parish of Hackington And the Plaintiff taking it by Protestation that the Defendant within three Months next after his Admission into the said Office of Colonel did not receive the Sacrament in Manner as the Act directs but neglected to receive it Avers that the Defendant did neglect to take the Oaths of Supremacy and Allegiance either in the Chancery or in the Kings Bench or at any Quarter-Sessions in Kent or in the Place where he was resident either the next Term after his admission to his said Office or within three Months after And that the Defendant after such neglect sc. 10 Mar. 2 Jac. 2. at Hackington in Kent did exercise the said Office and still doth contrary to the Statute of 25 Car. 2. for preventing Dangers from Popish Recusants Whereupon the Defendant at Rochester at the Assizes held 29 Mar. 2 Jac. 2. was duly Indicted for such his neglect and for executing the said Office contrary to the said Statute And thereupon duly Convict as by the Record thereof appears whereupon the Plaintiff became entituled to this 500 l. as forfeited by the Defendant The Defendant pleads that the King within the three Months in the Declaration mentioned and before the next Term or Quarter-Sessions after his admittance to the said Office and before his Suit began sc. 9 Jan. 1 Jac. 2. by his Letters Patents under the Great Seal and here produced in Court did dispence with pardon remit and discharge among others the Defendant from taking the said Oaths and from receiving the Sacrament and from subscribing the Declaration against Transubstantiation or Tests in the Act of 25 Car. 2. for preventing Dangers from Popish Recufants or in any other Act and from all Crimes Convictions Penalties Forfeitures Damages Disabilities by him incurred by his exercising the Office of Colonel Or by the Act intituled An Act for the Preserving of the King's Person and Government by disabling Papists from sitting in either House of Parliament Or by the Acts made in the first or third Years of King James the First or the Acts made 5 Eliz. or 23 or 29 or 35 Eliz. And the King by his Letters Patents granted that the Defendant should be enabled to hold that Office in any Place in England or Wales or Berwick or in the Fleet or in Jersey or Guernsey and to receive his Pay or Wages Any Clause in the said Acts or in any other Act notwithstanding non obstante that the Defendant was or should be a Recusant convict As by the said Letters Patents doth appear Whereupon the Defendant prays the Judgment of the Court whether the Plaintiff ought to maintain this Action The Plaintiff demurr'd generally to this Plea. The Defendant joyned in Demurrer Judgment is given for the Defendant THE Order I shall observe in speaking to this Case as to the Point upon the Dispensation shall be this First I shall open this Act of 25 Car. 2.
made it stronger No several Acts of Parliament have been made in divers Cases with express Clauses incerted in those Acts to make void all Non obstante's to the contrary of those Laws which one would have thought would have been strong enough and yet they all came to nothing for the Judges heretofore have resolv'd that if the King grant a Dispensation from such Laws with a Special Non obstante to any such Special Law mentioning the very Law that presently the force of that Law vanishes Therefore beside the Disabilities and Incapacities put upon them further to obviate this Mischief also and to frustrate all contrary Judgments and to prevent the Allowance of any such Grants and Dispensations with this Act by the Opinion of the Judges or future Resolution of any Court in Westminster-Hall to the contrary as if the Law-makers had foreseen this Danger too and to give a Rule to Judges in such Cases when any should happen to come before them There is this further Provision made by this Law that the granting or conferring of any such Office and Place is by express words adjudged void The words are And is hereby adjudged void It does not leave the Courts below to Judge it but this Law before-hand gives the very Judgment It directs the way of trying the Matter of Fact by Indictment c. and then declares the Judgment upon it and leaves it only to the Judges to apply that Judgment to the particular Case May the Judgment of any Inferiour Court controul the Judgment of the Supreme Courts Here is more then a threefold Cord to tie it An Oath a Sacrament a Declaration subscrib'd I look upon the two Oaths as one Cord. And these two Oaths are so much alike and to the same effect that Cardinal Bellarmine purposing to refute the Oath of Allegiance by a gross mistake bent all his forces against the Oath of Supremacy not minding the difference As King James the First in his Answer to the Cardinal hath observ'd in the Collection of his Majesty's Works fol. 263. The next Cord is the Sacrament The third subscribing a Declaration to remain on Record to all posterity And at last a Judgment in the very point by the King and Parliament the supremest Court of the Nation which must not be contradicted by any other Court nor by all the Courts of the Nation put together this Supreme Court exercises its Legislative and Judicial Power both at once and shall it all at last be lost labour Secondly Having given an Account of this particular Law upon which the present Case does arise I shall in the next place briefly speak concerning Law in general of what Force and Authority it ought to be which will make way for those Arguments that I shall raise from it For when we know the true Nature of a Law the Nature and Use of a Dispensation will be better understood The Name does oftentimes denote the Nature of a thing The truest derivation is that of Lex à Ligando from its binding quality and the obligation it puts upon us and this is most pertinent to the Matter in hand The Laws of England as all just and righteous Laws are grounded originally upon the Divine Law as their Foundation or Fountain The Supreme and Soveraign God among the Heathen is suppos'd to have the Name of Jupiter quasi Juris pater But more immediately Humane Laws have their Force and Authority from the Consent and Agreement of Men. All Publick Regimen says learned Hooker in his Ecclesiastical Polity of what kind soever seemeth evidently to have arisen from deliberate Advice Consultation and Composition between Men. To live says he by one Man's Will becomes the Cause of all Mens Misery this constrained Men to come to Laws A People whom Providence hath cast together into one Island or Country are in effect one great Body Politick consisting of Head and Members in imitation of the Body Natural as is excellently set forth in the Statute of Appeals made 24 H. 8. c. 12. which stiles the King the Supreme Head and the People a Body Politick these are the very words compact of all sorts and degrees of Men divided into Spiritualty and Temporalty And this Body never dies We our selves of the present Age chose our Common Law and consented to the most ancient Acts of Parliament for we lived in our Ancestors a 1000 Years ago and those Ancestors are still living in us The Law is the very Soul that animates this Body Politick as learned Hooker describes it the Parts of which Body are set to work in such Actions as Common Good requires The Laws are the very Ligaments and Sinews that bind together the Head and Members without which this Body is but a Rope of Sand or like the Feet of Nebuchadnezzar's Image Iron mixed with Clay that can never cleave one to another nor cement And so properly Laws have their name à Ligando in this respect too viz. from knitting together for as they bind by their Authority so they unite in Affection and strengthen And these Laws are made by Publick Agreement not impos'd upon Men against their Wills but chosen by the Prince and People They are that I may express it in our familiar and ordinary Terms the Articles of Agreement chosen and consented to by Prince and People to be the Rule by which all are to square their Actions Hence the Law is term'd The Act and Deed of the whole Body Politick The Rule by which the Prince Governs and the Subject Obeys From whomsoever the Designation of the Royal Person is that governs whether from Heaven or of Men be it the one or the other The Consent and Agreement of the whole Body Politick both Head and Members is the Rule of the Government David was made King by God's immediate appointment yet he himself call'd all Israel together to Hebron and there they made a Covenant with him This is that I am now speaking of the Law of the Nation made by general consent or a Scheme for the Government as a late Lord Chancelor terms it in his Survey of the Leviathan Every Just King in a setled Kingdom is bound to observe the Paction made to his People by his Laws But nothing can more lively describe it then the Preamble of the Statute of 25 Hen. 8. c. 21. where the Lords and Commons addressing themselves in their Speech to the King thus deliver themselves Namely WHere this your Grace's Realm recognising no Superior under God but only your Grace hath been and is free from subjection to any man's Laws but only to such as have been devised made and obtained within this Realm for the Wealth of the same or to such other as by sufferance of your Grace and your Progenitors the People of this your Realm have taken at their free liberty by their own consent to be used amongst them and have bound themselves by long use and