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.
to his Crown or Imperial Jurisdiction The Original of this Correction is in Sir Cotton's Library See the History of the Reformation Sir John Fortescu sometime Chief Justice and afterwards Lord Chancellor in his Book De Laudibus Legum Angliae The Civil Law says he runs thus Quod Principi placuit legis vigorem habet sed longe aliter potest Rex politice imperans quia nec Leges sine subditorum assensu mutari poterit Potestas regia Lege Politica cohibetur Sir Edward Coke in his 12 Rep. fol. 63 64 and 65. says It was greatly marvell'd that the Archbishop Bancroft durst inform K. James that such absolute Power and Authority as is there mentioned belong'd to the King by the Word of God and there Sir E. C. cites the Sayings of these ancient Authors in our Law But he says that the King was greatly offended with him A Learned Civilian gives some restraint even to the Lex Regia in this point Vinius in his Comment upon the Instit. fol. 381 Populus Romanus jura Majestatis omnia abdicative in principem transtulit hinc Principes Romani Legibus soluti fuerant But he utterly opposes that Opinion of the School-men Principem Legibus solutum esse quoad vim coactivam sed etiam quoad vim directivam Rot. Parl. 11. R. 2. The King and Parliament declare That the Realm of England never was nor was it intended by the King and Lords that ever it should be governed by the Civil Law. In the deciding of the Great and Royal Controversie in the time of K. E. 1. concerning Right of Succession in the Crown of Scotland it was debated by the Commissioners according to what Law that Case should be determined whether by the Law of England or of Scotland by the Civil Law as being the Jus gentium before the King of England as being the Superior Lord they all at last concluded That the Civil Law by no means should be admitted Ne inde Majestatis Anglicanae Juri fieret detrimentum Seld. dissertatio ad Fletam 539. Mr. Selden mentioning John of Salisbury who said that in his time there were those that did prefer the Civil Law before all other Laws especially that de absoluta principis potestate quae in lege habetur Regia he says it was meant of none but de assentatoribus illius saeculi exgenere Hieratico non de gente Anglicana aut de aliis qui Judiciis tunc praefuere It would have been far from any of the English Nation especially from any of the Judges to have maintained any such Opinion But let it be understood sano sensu and in a proper and literal sence too and it is very true and agreeable to our Law quod Regi placuit legis vigorem habet without the King 's Placet and his Royal Consent nothing is Law amongst us The Laws already in force have had the Consent of his Predecessors and no new Law can pass without the Royal Assent nay they are his Royal Words Le Roy le veut that first gives life to any new Law. And the Judges Oath in the time of H. 3. was that they should judge Secundum Legem consuetudinem regni which words as Mr. Selden there says seem designedly to Exclude the Jus Caesareum then lately brought in whereof as he says some were fond in those times and he tells us of what Order they were but they were not Common Lawyers nor Judges but the Hierarchy But should Judges give countenance to any such Law in the Latitude of it they should be put in mind of what was done by King Edward the Confessor which we are taught by Sir Roger Twisden in his Preface to the Laws of William the First annexed to Mr. Lambert's Treatise De priscis Anglor ' Legibus fol. 155. Omnes says he qui Leges iniquas adinvenerant injusta Judicia judicaverant multaque concilia contra Anglos dederant exlegavit such Enemies to the Laws of England should be put out of the Protection of the Laws of England Rode caper Vitem c. It is said amongst the Laws of King Henry the First c. 28. and it is in the very Body of that Law Lambert ibid. 186. Gravius Lacerantur pauperes à pravis Judicibus quam à cruentis hostibus The Lords of Parliament when any attempt is made to introduce the Caesarean Law as once in the time of our K. H. 3. there was an endeavour to bring in part of the Pontifician Law and it was by the Bishops I make no doubt but they will answer Una voce as their Ancestors then did Nolumus Leges Angliae mutare quae hucusque usitatae sunt approbatae The Statute of Merton c. 9. 2 Instit. fol. 96. The Act of 25 Car. 2. one of the principal Ends and Aims of it is to keep out that Foreign Power that would pretend to a Soveraignty or Supremacy over our Soveraign but the Dispensing with this Law which is maintained to be a Right incident to the Soveraign Prince seems to be the likeliest way of setting up again that Pretence and Claim of a Foreign Bishop which was so long usurp'd and against which Pretence so many Acts of Parliament have been made and which our ancient Kings did of old utterly renounce and disclaim and we know the same Foreign Bishop hath made another Pretence to England besides that Ecclesiastical Power by colour of a Resignation made by King John. But King Hen. 3. Son and next Successor to King John in the General Council at Lyons Anno 1245. by his Embassador and Advocate made a Special Protestation against that pretended Resignation made to Pandolphus the Pope's Legate Innocent the Third as a meer Nullity In quod nunquam consensit Regni Universitas and afterwards upon the Pope's issuing out of Process against K. E. 3. and the whole Kingdom for the Homage and the Arrears of the 1000 Marks Rent due to him The Parliament declared That King John nor no other could put himself or his Realm into such a subjection without their consent And that it was against the Oath King John had taken at his Coronation This Record expounds the word Sovereignty in the true sence of it namely that our Sovereign is no way subject to the Bishop of Rome or to any Foreign Power But it doth no way import that the King can dispose of his People ut placuit Regi or alter the Government without the Peoples consent nor dispence with his Coronation-Oath but proves the quite contrary A Short Argument UPON THE PLEADINGS Of the aforementioned CASE of Sir EDW. HALES THE first Point argued by the Plaintiff's Councel was That it appears by the Declaration and it is now confess'd by the Defendant's joyning Demurrer that the Defendant hath been Indicted for this Offence in exercising the Office of a Colonel without having taken the Tests And upon the Indictment he either did plead this Dispensation or might have
1 Hen. 4. num 91. that Judgment against Sir Thomas Haxey was revers'd As for the distinction pag. 30. of a Disability actually incuri'd before the medling in an Office and where the Disability is prevented by the coming of a Dispensation I answer That its being so prevented is but Peticio Principii and a begging of the Question And to this Distinction I have I think fully spoken in the foregoing Argument fol. 40. The late Parliament in making this Act of 25 Car. 2. had no doubt a prospect that probably the Crown would discend upon a Popish Successor and they levelled this Act against the Dangers that might then befal our Religion and Liberties and they thought it a good Security But it is all vanished and come to nothing by occasion of this Judgment in the Case of Sir Edward Hales And that must be justified by a Fiat Justitia As to the Objection that the Chief Justice fancies might have been made against him or advice given him that he should rather have parted with his place than to have given a Judgment so prejudicial to the Religion he professes pag. 33. This I say that for my part I should never have advis'd him to have parted with his Place much less to have given a Judgment against his own Opinion But let his Opinion be what it was yet seeing the clear intention of the Makers of the Law contrary to that his Opinion and knowing the desperate effects and consequences that would follow upon dispensing with that Act for we were upon the brink of destruction by it and taking notice as this Chief Justice and the rest of the Judges needs must that the King had first endeavour'd to have gain'd a Dispensing Power in thismatter from both Houses which was the fair and legal course and that yet that very Parliament which out of too great a compliance with those times had over-look'd so many Grievances and conniv'd at the King 's taking and collecting of the Customs though in truth the Collectors and all that had any hand in the receiving of them incurr'd a Praemunire by it not to mention the ill Artifice used in gaining the Excise yet that Parliament of the King 's boggled at the Dispensing with the Act of 25 Car 2. knowing the mighty Importance of it And though they could not but take notice that so many Judges at once had been remov'd because they could not swallow this Bitter Pill and others brought into their places as might be justly suspected to serve a Turn and the King 's Learned Councel could not at first find out this Prerogative to do his work with till so many ways had been attempted and all proved ineffectual sure in such circumstances it had been Prudence nay the Duty of the Judges to have referr'd the determination of it to a Parliament and the rather because it was to expound a Law newly made and the consequences so dreadful and the intent of the Law-makers so evident And this hath been frequently practis'd by Judges in Cases of far less difficulty and concernment This I have also enlarged upon in my Argument page 26. Object But it might have been a long time before any Parliament had been called Answ. We ought to have Parliaments once a year and oftner if need be and eadem praesumitur esse mens Regis quae Legis and we then stood in great need of a Parliament even for the sake of this very Case And these hasty Judgments are one ill Cause why Parliaments meet no oftner the Work of Parliaments is taking out of their hands by the Judges And it is the Interest of some great Officers that Parliaments should not be called or else be hastily prorogu'd or adjourn'd As to the point of the feigned Action which the Lord Chief Justice seems to justifie I conceive he mistakes the force of the Objection Feigned Actions may be useful but this Action against Sir Edward Hales is suspected not only to have been feigned and brought by Covin between him and his Servant and Friend but it was feignedly and faintly prosecuted and not heartily and stoutly defended Like the practice of common Fencers who play for a Prize they seem to be in good earnest and look very fierce but agree before-hand not to hurt one another Qui cum ita pugnabat tanquam se vincere Nollet Aegre est devictus proditione suâ This solemn Resolution was given upon a few short Arguments at the Bar and without any at the Bench and upon other Reasons as I have heard which were then made use of are now given by the Chief Justice but the Times will not now bear them After all I intend not by this to do the Office of an Accuser nor to charge it as a Crime But as I think my self bound in Duty on the behalf of the whole Nation of my self though a small part and member of it and of my Friends I humbly propose That the Judgment given in Sir Edward Hales his Case may after a due Examination if there be found cause be legally Revers'd by the House of Lords and that Reversal approv'd of and confirm'd by a special Act of Parliament FINIS Declaration Plea. Order The Act of 25 Car. 2. Of the Law in general Of a Dispensation Of this particular Act of 25 Car. 2. Dangers from Papists to the Protestants The Test. Judgment given by Parliament The Pishop of Winchester's Collections Of Law in general Laws made by consent of the People * Grotius de Jure Bell. pacis f. 151. †King James the Firstin his Speech to the Lords and Commons at White-hall 1609. f. 531. 25 H. 8. c. 21. ‖ Leges nulla alia causa nos tenent quam quod judicio populi receptae sunt Ulpian de Lege 32. Tum Demum Leges humanae habent vim suam cum fuerint non modo institutae sed etiam firmatae approbatione Communitatis Sir Wal. Ral. in his Hist. of the World 245. * Fol. 531. Mr. Hooker Fol. 17. Non eget Mauri jaculis nec Arcu The original of Dispensation Instances of Dispensation The Definition of a Dispensation The Original of Dispensation * Marsilius Patavinus in the 14 Cent. of Padua in his Defensor pacis It s Antiquity ‖ Dr. Barrow of the Pope's Supremacy 316. See there the unreasonableness of Dispensations †Anno 1215. Pag. 646 647. Mat. Paris p. 677. * Sir Cotton's Abridgment of the Records of the Tower amongst the Petitions of the Commons 51 E. 3. Numb 62. Dispensations from Rome are said to be the chief Grief Prinn's Second Tome Fol. 504. Ibidem 760. Innocent 4th * Dr. Barrotti in the Pope's Supremacy 31. L. 3. c. 3. sect 10. Fol. 39. * Sir Ed. Coke 2 Inst. 27. No Law or Custom of England can be annul'd but by Act of Parliament Selden's Dissertatio ad Fletam 539. Fol. 775. The King and Parlialiament have the Power of Dispensing The Statute of Dispensation The Preamble No Prescription The time of Limitation in a Writ of Right is limited to the time of R. I. Where the true Power of Dispensing resides 15 R. 2. nu 8. 2 H. 4. nu 26. R. 2. nu 22 17 R. 2. 34. 2 H. 4. nu 63. * Hob. 157. at the lower end It is the Office of Judges to advance Laws made for Religion according to their end tho' the words be short and imperfect †Sir Ro. Cott. Abridg. 1 R. 2. nu 95. 2. Inst. 408. * 39 E. 3. 21. 40 E. 3. 34. Objection * 12 H. 7. 19. Plowden 319 322. * Sir Moor's Reports 239. Warram's Case A Prerogative that tends to the great prejudice of the Subject is not allowable Croke Jac. 385. The same Case * 14 E. 3. c. 7. That by their trusting to tarry in their Office by procurement they are encouraged to do many Oppressions to the People 28 E. 3. c. 7. 42 E. 3. c. 9. 1 R. 2. c. 11 †Sir Cotton's Abr. 18 E. 3. nu 54. Objection Answer * 1 H. 4. c. 6. †11 E. 3. c. 1. 13 H. 7. 8. by Daver 's Letter B. Answer * See 13 H. 7. 8. by Daver's Letter B. Election of Sheriffs by the County Fol. 174 175. 28 E. 1. c. 8. chap. 13. See the Reports of E. 2. in t ' Memoranda Scac ' fo 28. * Sir Rob. Cot. Abr. 18 E. 3. nu 54. See the Stat. of 6 H. 8. c. 18. in the Statutes at large concerning the Under-Sheriff of Bristol 9 H. 5 c. 5. * Palmer's Rep. 451. Dr. Burnet's Hist. of the Rights of Princes 239. K. James in his Promonition to all Christian Monarchs 298. Objection Answer Objection Answer 8 R. 20. Answer Argument Answer Or Tributary L. 1. C. 5. †K. James 1. in his Speech to both Houses 1609 in his Works fol. 533 says the King with his Parliament are absolute in making or forming of any sort of Laws Sir Rawleigh's Hist. of the World fol. 245. ‖ Archbishop Laud too did the like Seld. Dissert 539. Seld. Dissertat ad fletam fol. 537. Pryn's Second Tome fol. 290 292 299. 301 302. 46 E. 3. Rot. Parl. nu 7. 8. Object Estoppel Answ. Object 2. Here is no Estoppel Answ. A Stranger may take the advantage of this Estopp 7 E. 4. 1. Br. Estoppel 163. Knoil Heymor's third Kebk 528. by Chief Justice Hale That a Stranger cannot falsifie a Verdict Rol. Abr. first part 362. Dr. and Stud. 68. à ad fin b. Object 2. Answ. A dependant Action An Action dependant or collateral * Jaques versus Caesar. And Dr. Drury's Ca. 8 R. 142. And Mackaelly's Ca. 9 R. 68. 1 H. 4. c. 6. Pag. 10.
chap. 7. He shall think that he may change Times and Laws and they shall be given into his hands Bishop Jewel's Exposition upon the Epistle to the Thessalonians fol. 131. Antichrist says the Bishop is there called O. Anomos a Man without Order or Law that Man of Sin which is one of the peculiar Notes of Antichrist He shall seek to be free and go at liberty he shall be tied to no Law neither of God nor Man. Hence it is said of the Pope that he is solutus omni Lege humana In iis que vult est ei pro ratione voluntas nec est qui dicat illi Domine cur ita facis Ille potest supra jus dispensare de Injustitia facere justiciam Corrigendo jura mutando Pope Martin the Fifth dispens'd with a Man that married his own Sister In this last Instance the Pope did directly write after the Copy of an Heathen King. The story of Cambyses is the same Case in the very point with this last of Pope Martin Sir Walter Raleigh mentions it in his History of the World. Cambyses inquir'd of his Judges whether there were any Law among the Persians that did permit the Brother to marry his own Sister It was the intent of Cambyses to marry his own Sister too The Judges who as Sir Walter Raleigh observes had either Laws or Distinctions in store to satisfie Kings and Times they make a subtil answer that there was not any thing written allowing any such marriage But they notwithstanding found it in their Customs that it was always left to the Will of the Persian Kings to do what best pleas'd themselves This was a Non obstante with a witness This surely and the Popes practice together gave the occasion to Mr. Chillingworth's observation He that would usurp says he an absolute Lordship over any People need not put himself to the trouble of abrogating or disannulling the Laws made to maintain the Common Liberty for he may frustrate their intent and compass his design as well if he can get the power and authority to interpret them as he pleases and to have his Interpretations stand for Laws If he can Rule his People by his Laws and his Laws by his Lawyers therefore says he there is a necessity of a frequent resort to be had to the Law-makers not only to resolve Difficulties of Judgments but to keep the Power of Interpretation within its due bounds which is excellent advice I shall give but one Instance more and that is of the most impious sort of Dispensations that could possibly be devised I find it in the History of the Church of Scotland written by Archbishop Spotswood He tells us that in Anno 1580. Dispensations were sent from Rome into Scotland whereby the Catholicks were permitted to promise swear subscribe and do what else should be requir'd of them so as in mind they continued firm and did use their diligence in secret to advance the Roman Faith. Thus we see the monstrous Abuses brought in by Dispensations I have been something long upon this Subject but it was necessary to shew how that it is in the very nature of it to be stretching and growing and at last to be altogether unlimitted and will totally subvert the Law. Having thus laid my Foundation I shall now proceed from thence to raise my Arguments against Dispensations in general to prove that they are not Law but indeed contrary to Law and destructive of it I hold there is no just nor lawful Power of Dispensing with any Act of Parliament in any other hands than in those that are the Law-makers that is in the King and Parliament in conjunction I confine my self to Dispensations with Acts of Parliament 1. My first Argument shall be from the Nature of a Law whereof an Act of Parliament is the highest and of greatest Authority A Law hath its Name as I said before from its Nature Lex à Ligando it binds and compels to Obedience and it binds together and cements it knits and unites a multitude of People and makes them all as it were but one body Now a Dispensation is of a quite contrary nature and is destructive of Law As the Law does Ligare a Dispensation does Relaxare It is defin'd to be Relaxacio Juris it does unbind and set loose the Obligation of the Law and by consequence tends to the dissolving of the Body Politick Whatsoever is destructive of the Law cannot it self be Law for then the Law would be felo de se Lex quae Leges evertit ipsa Lex esse non potest a thing divided against it self and therefore will not stand Ubi non est pudor nec cura juris instabile Regnum est says Seneca Law is made by an universal consent and agreement of Prince and People I have already shewn how that the Common Law which is as ancient as the Nation it self is that Covenant which was agreed upon by Prince and People at the first framing and institution of the Government The Statute-Law hath its Force and Authority from the like consent and nothing is Law without that consent as appears by the Preamble of 25 H. 8. c. 21. concerning the very Point of Dispensations Sir John Fortescue says Rex leges sine subditorum assensu mutare non potest potestas regia lege cohibetur in his Book de Laudibus legum c. Now for the Prince alone without the like consent to depart from that Agreement and at his will and pleasure to break any Article of it is in effect to put the sole Power of the Law into the hands of one person which receiv'd its force and vigour from the consent of all which is irrational Bracton who as Sir Edward Coke says in his Preface to the Ninth Report was a famous Judge of the Common Pleas in the time of King Henry the Third is of this Judgment Leges says he cum fuerint approbatae consensu utentium Sacramento Regum confirmatae mutari non possunt nec destrui sine Communi consensu Concilio eor ' quor ' concilio consensu fuerint promulgatae 2. The Laws of England both Common and Statute Law have as I have already shewn a different Original from that of the Power of Dispensation as it is exercis'd now among us they have not the same Father The King who is Pater Patriae with the consent of the People is the Father of our Laws he is Juris Pater but he that is called the holy Father and from thence hath his name of Pope is the Father and first Inventer of Dispensations so that there is no kindred nor affinity between the Law and Dispensation 3. The Laws amongst us and this faculty of Dispensations as they have a different Original so they have no resemblance one of another facies non omnibus una est they have contrary qualities and dispositions The Law is equal and impartial and hath
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
necessitate pensata Upon the word Concessa I would gladly be satisfy'd when or by whom that Power was ever granted to the King where shall we find that Grant It is clear that whoever hath the entire Power of making a Law may justly dispense with that Law. And therefore Almighty God being the sole and supream Law-giver might dispense even with the Moral Law as he did with the sixth Commandment when he commanded Abraham to sacrifice his Son Isaac and with the eighth Commandment when he commanded the Israelites to borrow the Jewels of the Aegyptians and to go away without restoring of them But it stands not with reason that he who hath but a share with others in the making of a Law as the King hath no more should have the power by himself alone to dispense with the Law unless that power were expresly intrusted with him by the rest of the Law-makers as sometimes hath been done Sir Edward Coke in his seventh Report in the Case of Paenal Statates fol. 36. towards the lower end does affirm that this Dispensing Power is committed to the King By All his Subiects So that it is not claimed Jure Divino but by Grant from the People But where to find any such Grant we know not I have as I conceive made it appear in my larger Argument p. 14. that the first Invention of Dispensations with Laws began by the Pope about the time of Innocent the Third and by our King Henry the Third in imitation and by encouragement from the Pope so that it was not by the Grant of the People but ever exclaimed against by all good men and generally by all the people and ever fenced against by a multitude of Acts of Parliament It is true the Dispensing with Laws hath ever since been practised and they began at first here in England to be used only in Cases where the King alone was concern'd in Statutes made for his own profit wherein he might have done what he pleas'd But it is but of latter times that they have been stretched to Cases that concern the whole Realm See my Argument fol. 13. Hence it evidently appears it cannot be a legal Prerogative in the King for that must ever be by Prescription and restrain'd to those Cases that have been used time immemorial and must not be extended to new Cases Now there hath been no such usage as will warrant the Dispensing with such an Act of Parliament as is now before us that of 25 Car. 2. c. 2. The Chief Justice Herbert from the Definition before recited and those two Authorities of Sir Edward Coke in his Case of Monopolies and that other of Penal Statutes frames an Argument to prove that the Dispensation granted to Sir Edward Hales was good in Law. Because a Dispensation is properly and only in case of a Malum Prohibitum he thence insers that the King can dispense in all Cases of Mala Prohibita Which is a wrong Inference and that which Logicians call Fallacia à dicto secundum quid ad dictum simpliciter Because he can dispense with some that therefore he can dispense with all is no good Consequence It appears by the late Chief Justice Vaughan's Reports in the Case of Thomas and Sorrel so often cited by the Chief Justice Vaughan's Rep. fol. 333. the fourth Paragraph that his Opinion is That the King cannot dispense with every Malum Prohibitum and he gives many Instances of such Mala Prohibita that are not dispensable fol. 342 and 334. parag 4. Therefore the Lord Chief Justice Herbert should as I conceive regularly first have given us the distinction of Mala Prohibita into such as are dispensable and such as are not dispensable and then have shewn that the Dispensation granted to Sir Edward Hales fell under the first part but that learned Reporter the chief Justice Vaughan so often cited by our now Lord Chief Justice in the aforesaid Case of Thomas and Sorrell fol. 332. the last Paragraph save one quarrels with the very distinction of Malum Prohibitum and Malum in se and says it is confounding From whence I would observe and from the whole Report in Thomas and and Sorrell's Case that the Notion of Dispensation is as yet but crude and undigested and not fully shaped and formed by the Judges The Pope was the Inventer of it Our Kings have borrowed it from them And the Judges from time to time have nursed and dressed it up and given it countenance And it is still upon the growth and encroaching till it hath almost subverted all Law and made the Regal Power Absolute if not Dissolute I must agree that our Books of late have run much upon a Distinction viz. Where the breach of a Penal Statute is to the particular damage of any person for which such person may have his Action against the Breaker of that Law there tho' it be but Malum Prohibitum yet the King cannot dispense with that Penal Law according to the Rule in Bracton Rex non potest gratiam facere cum injuriâ damno alterius As for instance There are several Statutes that prohibit one man from maintaining another's Suit though in a just Cause See Poulton de pace Regis Regni in his Chapt. of Maintenance fol. 55. Now it is held that the King cannot dispense with those Laws because it would be to the prejudice and damage of that particular person against whom the Suit is so maintain'd by another for there can be no maintenance but it is to the wrong of a particular person So of carrying a Distress out of the Hundred But there are many other Penal Laws where by the transgressing of them no Subject can have any particular damage and therefore no particular Action for the breach of them As upon the Statute that prohibits the Transportation of Wool under a Penalty By the breach of this Law that is by the Exportation of Wool no one particular man hath any damage more than every other man hath but it is only against the Publick Good. And the breach of such a Penal Law is punishable only at the King's Suit by Indictment or Presentment And the like where such a Penal Statute gives an Action Popular to him that will sue for the Penalty who hath no right to it more than any other till his Suit be commenced In these Cases it is commonly held that the King may dispense with such Penal Statutes as to some particular persons and for some limitted time whereof they make the King the sole Judge because as the reason is given in the Chief Justice Vaughan's Reports fol. 344. parag 2. Such offence wrongs none but the King. This is now the common receiv'd Opinion and Distinction And the breach of such kind of Penal Statutes are said to be only the King's damage in his publick capacity as Supream Governour and wronging none but himself Lord Vaugh. Rep. 342. parag 3. But if we will narrowly search into this