other Clauses The History of the Reformation fol. 262. mentions the Draught of a Bill intended for an Act of Parliament concerning giving the King Power of Erecting many new Bishopricks by his Letters Patents upon which the Author of that History says that the Preamble and material parts of it were drawn by King H. 8. himself and the first Draught of it under his hand is still extant and this passed the Lords and was sent down to the Commons and this is the very same Parliament of 31 H. 8. when this terrible Law passed Sir Edw. Cook in his first Inst. fol. 99. defines a Dispensation thus Dispensatio est mali prohibiti provida relaxatio utilitate seu necessitate pensata So that great utility or necessity are at least pretended for the granting of them now publick utility and necessity are the true grounds and foundation of all Laws which I have already shewn bind all Men alike without respect of person But a Dispensation does untie that Knot or slackens and lets loose that Obligation as to some particular persons and in some cases and for some limited time at the will and pleasure of the Prince that exercises that Power It looks like a Dispensation which Naaman the Syrian obtained from the Prophet Elisha In this thing that is in one particular the Lord pardon thy servant to bow down himself in the house of Rimmon when his Master the King did so He calls it a Pardon but it rather was an Indulgence or Dispensation that he crav'd A Pardon is properly of an Offence already committed See Dr. Field Dean of Gloucester in his Treatise of the Church printed at Oxford 1628. fol. 475. what a Dispensation is viz. It is in respect of certain persons times places and conditions of men and things So that a Dispensation permitting the Law to retain her wonted Authority only freeth some particular person or persons at some times in some places and in some condition of things from the necessity of doing or leaving undone that which unless it be in consideration of such particular circumstances ought to be done A Dispensation is of a thing future to allow of a thing to be done that it may not be accompted for a Crime and makes the thing prohibited lawful to be done And thereupon the Chief Justice Vaughan in his Argument of the Case of Thomas and Sorrel seems to take it in its right Notion when he says a Dispensation obtain'd does Jus dare Tho' he quarrels with Sir Cook 's Definition of it and says it is Ignotum per Ignotius But under his favour if he dislik'd that he should have given us a better Carpere vel noli nostra c. 1. I know very well that there are some of late that do ground this Power upon the Soveraignty of the Prince as if to be Soveraign and to be Absolute and Solutus à Legibus were one and the same thing As if it were inconsistent for a Soveraign Prince to be bound to Law. A Prince may be a Soveraign i. e. no subordinate or subject Prince Rex est qui Regem Maxime not habeat and yet not absolute and unlimitted in Power It is a frequent Argument and often disputed in our Books what Law the King is bound to and where he is not included in the Law. 2. It hath been argued that because the Laws are the King's Laws that therefore the King may dispence with the Laws this Argument is of a vast extent in the consequence as that of the Soveraignty is But it is not the King alone that makes the Laws and tho' they are indeed his Laws per Eminentiam and Denominatio sumitur à majore yet others have an hand in the making our Laws and a Propriety and Interest in them when once they are made We shall be best instructed in the Use and Nature of a Dispensation if we give some Instances of particular Cases wherein Dispensations have been allowed good by our Judges against the Penalties of some particular Acts of Parliament For example By a certain Statute Gascoign Wines and other Foreign Goods were prohibited to be imported into this Kingdom but in English Ships under the penalty of forfeiting the Goods and it was a profitable Law for the encrease of our Navy and employment of our own Mariners wherein the strength and safety of the Kingdom is concerned This importing of Foreign Goods in Foreign Ships was the Malum but it was only Malum prohibitum that is it was no offence till the Law made it so It was not Malum in se. It was therefore resolv'd by all the Judges 2 R. 3. fol. 12. that the King might dispence with this Law Cum Clausula non obstante and might give License to some particular persons to import such Foreign Goods in Foreign Ships That which before this Act of Parliament was a common Liberty and Trade by occasion of this Law applying the Prerogative of dispensing to it was now engross'd into some few hands from whence a Revenue it 's likely was rais'd so that it might be said Sin took occasion by the Law. By the Statute of 17 R. 2. c. 5. no Aulnager or Weigher of Wool shall have any Lease for Life or Years of his Office and if any Charter or Letters Patents be made to the contrary the Statute says they shall be null and void so that the Makers of this Law did not allow of any Dispensing Power but provided against it which shews what Opinion a Parliament hath of Dispensations Yet it was resolv'd Dyer 303. that the King by a Non obstante might dispence with this Law. The Judges indeed were of that Judgment but the Parliament who are the supreamest Judges plainly appear to be of a contrary judgment By a Statute made 1 H. 4. he that petitions to the King for Lands c. in his Petition is to mention the Value of the thing c. or else the King's Letters Patents c. shall be of no effect and yet Letters Patents to the contrary are good with a Non obstante By the Statute of 33 H. 8. c. 24. for avoiding Partiality and Favour in administring Justice no man is to exercise the Office of a Judge of Assize in the County where he was born or dwells under 100 l. penalty and divers former Acts had been made to the same purpose as 8 R. 2. c. 2 c. yet this we know is frequently dispenc'd with by a special Non obstante so that these Statutes are seldom or never observ'd and are of little use So likewise is the Statute of 7 Ed. 6. c. 5. for Retailing of Wine according to the Resolution in the Case of Thomas and Sorrel These may suffice to shew what is meant by the Term Dispensation and what the Nature of a Non obstante is It is an Indulging of a Priviledge to some particular Person or to a Corporation allowing him or them to do a thing that is
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
liberty to the Judge he is the best Judge that takes least liberty to himself Therefore where any new Law sits uneasie and too hard and heavy in some particular cases it were much safer to suffer the mischief for a time if any such happen and let it wait till those that gave the wound come to cure it Una eademque manus vulnus opemque feret The overhasty cure arising from the impatience of enduring pain makes the case the worse frequency of Parliaments is a proper cure Other ways of cure are apt to cause infrequency of Parliaments And in Matters of great difficulty which come before the Judges in the Courts of Westminster or if there be no great difficulty yet if it be of mighty concernment and not clearly concurring with the intent and words of Law-makers but the Law in the scope of it is like to be frustrated by an hasty determination it is under favour the Duty of the Judges in such Cases of Dubitaciones Judicior ' to rest till the Parliament meet and then to propose it to the Parliament for their resolution Thus it is expresly provided in the Statute of Treasons 25 E. 3. to defer doubtful Cases till the Parliament resolve them being in a matter of so high concernment as that of Treason And in Cases of much lesser consequences especially upon a new Law as that is that we have before us in several Cases cited in Blackamore's Case the Judges have sought to the Parliament for a Resolution in smaller matters 8 Rep. 158. In doubts arising before the Judges in their Courts upon the Construction of Acts of Parliament the Judges resorted to the Council which is there said to be meant of the great Council the Parliament that made the Act in the Case there cited The Question did arise upon the Statute of 14 E. 3. c. 6. which gives power to Courts to amend Misprisions of Clerks in Process in writing a Letter or Syllable too much or too little But whether these words in the Act gave power to amend where there was a whole Word too much or too little was the Question and the Lords declared 39 E. 3. 21. that their meaning was that in such Cases the Process should be amended this shews the tenderness of the Judges in those times in construction of new Acts of Parliament and the frequency of Parliaments and the resort still had to them in case of Doubts And this was in the time of E. 3. the most flourishing time of the Law and a Case that the then Archbishop said had no great difficulty in it But I presume it will be said against me that this is a clear Case in Law which is now before us and that there was no doubt nor difficulty in it but that the King by his Prerogative could dispence with this Act of 25 Car. 2. and that all the twelve Judges but one or two was of that opinion and that the Point hath formerly been resolv'd in the Case of Continuing a Sheriff in his Office longer than one Year notwithstanding the several Acts of Parliament to the contrary and that was so resolv'd by all the Justices in the Exchequer Chamber 2 H. 7. and by the opinion of Sir Edward Coke 12 Rep. 18. and repeated in Calvin's Case 7 Rep. 14. which are the only Authorities that come home to the Case and none of them ancient Before I speak to these Authorities in the Case of Dispensing with a Sheriff to continue longer than a Year I shall make it appear that the Case now in question or the Point in Law of this Case was very much doubted if not clearly held on the contrary that the King could not dispence with this Act of 25 Car. 2. and that by no mean Judgments If the King could have dispens'd with it by his Prerogative and it had been so clear what need was there of his Majesty's proposing it to the two Houses at the opening of a Session to allow him a Power of Dispensing with this Law or that they themselves would dispence with it why would the two Houses after long debate about it excuse themselves from consenting to that which the King could do without them were there no Judges that did scruple the doing of it If it were a Prerogative in the King how came it to be so long before the King 's learned Council could start it we heard nothing of this till all other ways were tryed Let me add to this what was spoken by the late King 's own command and direction in the House of Lords before the King and both Houses and all the Judges present by a late Lord Chancelor who as he was an excellent Orator so he was a very learned Lawyer and my honourable Friend It was in his Speech made to both Houses the Twenty third of May 1678. about five Years after the making of this Act of 25 Car. 2. and it was spoken in reference to this very Act of Parliament Hath not the late Act says he made it impossible absolutely impossible for the most concealed Papist that is to get into any kind of Employment And did ever any Law since the Reformation give us so great a security as this Hereupon in the same Speech that noble Lord does declare it now a stale Project to undermine the Government by accusing it of endeavouring to introduce Popery that a man would wonder to see it taken up again This Law had so abundantly secured us against the Danger of it And yet after all this do we hear the Judges openly and judicially declaring that it appear'd to them to be a very plain case that the King alone could dispence with this Act of Parliament by his Prerogative and tho' it was acknowledged to be a Case of great consequence as the truth is yet it was pronounc'd withal to be of as little difficulty as ever any Case was that raised so great an expectation These are strong Arguments to prove the Doubtfulness of it after all these Refusals or Hesitations it might very well be accounted a Doubt or Difficulty worthy to be referr'd to the judgment of the Parliament if the Parliament had not already in effect given their judgment to the contrary As I remember it was in February 1663. that the two Houses made an Address to the last King for revoking a Declaration whereby his late Majesty had granted a Toleration and Indulgence to some Protestant Dissenters as being against Law and such a Toleration was declared illegal by the Parliament in 1672. These are two Resolutions in the point by the Supream Judicature If this Prerogative of Dispensing with Acts of Parliament were in the Crown by Prescription as it ought to be if it were a legal Prerogative it ought then to be confin'd and limitted to such cases only wherein it had been anciently and frequently excercised and there ought to be no extension of Cases where they are depending upon
Recompence by a Revenue of Inheritance in part of the Excise to the King in lieu of Purveyances It is sober Advice given by Learned Grotius in his Book De Jure Belli pacis 82. Let us not says he approve of all things tho' delivered by Authors of greatest Name for they often serve the Times or their Affections and bend the Rules as occasion requires This Resolution of all the Judges in the Second of Henry the Seventh is again cited in Calvin's Case in Sir Coke's Seventh Report and there a Reason is given to justifie that Resolution which is not so much as touch'd upon in the Report itself of 2 H. 7. but it has been studied and found out since that Resolution viz. That an Act cannot barr the King of such Service of his Subject which the Law of Nature did give him And this is the main Reason insisted on in the late Judgment given in Sir Hales's Case as I am informed which is the only Case that I find which came to be argued upon the very point yet it was but lightly spoken to for that of 2 H. 7. which is the first of the kind was not upon a Case that came Judicially before the Judges but was upon a Consultation only with the Judges and without Argument Nor in any other Authorities that I have cited grounded upon that Resolution of 2 H. 7. did the Point directly come in question Judicially And Calvin's Case is the first that I find which offers this special Reason viz. That no Act of Parliament can restrain the King from commanding the Service of his Subject but it is an inseparable Prerogative in the King and as Sir E. C. speaks in his 12 Rep. Tho' an Act makes the King's Patent void and tho' the King be restrained to grant a Non Obstante by the express words of the Act and tho' the Grantee is disabled by the Act to take the Office yet the King says Sir Edward Coke may by his Royal Soveraign Power of Commanding command a man by his Patent to serve him and the Weal-Publick in the Office of Sheriff for Years or for Life And this the King may do for such Causes as he in his Wisdom shall think meet and profitable for himself and the Common-weal of which he himself is solely Judge says Sir E. C. So tho' the King and Parliament have adjudged and declared by a Law such a person or such a sort of persons to be altogether unfit for such a Service or Office. As for Example They have adjudged Papists who own a Forreign Authority and Jurisdiction and who hold Doctrines destructive and contrary to the Religion Established in this Kingdom to be very unfit and uncapable of being entrusted with the maintaining of the Government and the Religion Established by Law in this Kingdom Yet according to late Opinions and Resolutions tho' the King himself by the Advice of his Great Council have so adjudged and declared yet he may do otherwise and he may employ a Papist to defend the Protestant Religion and he is the sole Judge of the fitness of Persons for his Service This is the Discourse this is the Argument and Reason used Will this Reason be allowed of shall the King be the sole Judge of the Persons fit to serve him in all Cases and is it an inseparable Power and Prerogative in the Person of the King I shall put a Case wherein the Judges depart from this Opinion and appear to be of another mind In the Lord Anderson's Reports the 2d Part 118. It is there said If an Office in the King's-Bench or Common-Pleas be void and the placing of the Officer belongs to the King if the King grant it to a person not able to execute it the Grant is void as 't is there held by many of the Justices And there a Case is cited out of 5 E. 4. rot 66. where one Tho. Wynter was placed by the King in the Office of Clerk of the Crown in the King's-Bench The Judges before the King himself did declare him to be Inhabilem ad Officium illud pro commodo Regis populi sui Exercendum and he was laid by and one Roger West at the commendation of the Judges was put in Will any man presume to say the person is unfit when the King who is the sole Judge of the fitness of persons to serve him hath adjudg'd him fit yes the Judges in a Case that concerns the Courts where they sit it seems will controul the King 's own judgment and judge the person inhabilis and hold the Grant void in such case To compare our present Case with this The King and Parliament by a Law have adjudged the Papists unfit to be entrusted with the Government and with the preserving of the Reform'd Religion but says the Judges if the King without the Parliament judge otherwise his judgment shall prevail why not as well in the case of an Office in the Courts at Westminster which does belong to the King to dispose of as in an Office that immediately concerns the Safety of the King and Kingdom and the great concernment of Religion So here is one Command of the Kings set up in opposition to another Command of the King. A Command of the King upon private advice or it may be possible gained from him by surprize by an importunity or an undue solicitation against a serious solemn deliberate Command of the King upon advice with his great Council and with the Consent of the whole Kingdom this is the very Case before us This is against all reason and against the Examples of the greatest wisest and most absolute of Kings and Princes who commanded their Judges to have no regard to any Commands of theirs that were contrary to Law. Vinius the Civilian in his Commentary on the Imperial Institutes fol. 16. gives this Rule Rescripta Principum contra Jus vel utilitatem publicam Elicita à Judicibus improbari etiam ipsorum Imperatorum constitutionibus jubentur Princeps non creditur says he aliquid velle contra utilitatem publicam concedere 21 H. 8. c. 13. sect 10 11 27. Dispensations for Pluralities contrary to Act are declared to be void Hob. 82 149 146 155. The King is never by Law supposed ill affected but abused and deceived for Eadem praesumitur mens Regis quae est Juris Grotius de Jure belli pacis 112 113. Amongst the Persians the King was Supreme yet he took an Oath at his entrance and it was not lawful for him to change certain Laws made after a particular form If the King Establish the Decree and Sign the Writing it may not be changed according to the Law of the Medes and Persians which altereth not as we read in the Book of Daniel 6 Dan. 8. 12 15. By the Act of 2 E. 3. c. 8. it is accorded and established that it shall not be commanded by the Great Seal nor the little Seal to disturb or
several Statutes so forbidding it the King hath so done it by virtue not of his Prerogative but by a special Act of Parliament enabling him to do it for some extraordinary occasions and for some limitted time only See for this the Statute of 9 Hen. 5. cap. 5. in the Statutes at large and my larger Argument fol. 34. The truth is the Power of Dispensing is originally in the Legislators He only can dispense with a Law that can make a Law. The Power is equal and the Legislators can confer the same Power upon the King or any others for some convenient time c. as appears by the last Instance of the Sheriff and divers other like Cases mentioned in my foregoing Argument where I have also observ'd many other things upon that Resolution of 2 H. 7. concerning Sheriffs The Chief Justice Herbert supposes the Mischiefs recited in the Preamble of that Statute of 23 Hen. 6. cap. 8. concerning Sheriffs continuing in their Offices longer than one year to be equal if not greater as he judges than the Mischiefs recited in the Statute of 25 Car. 2. by Papists being in Offices And from thence I presume would infer that the Case of Sir Edward Hales is not so fatal in the consequence as the Case of a Sheriff I may appeal to any ordinary Judgment and to the sad Experience and Tryal we have so lately had and to the desperate Danger we were so lately in from which Almighty God by no less than a Miracle hath in great mercy deliver'd the Nation whether the Mischiefs that could any way possibly arise from the dispensing with the former I mean thâ— Statute concerning Sheriffs be comparable to the infinite Mischiefs arising from putting Papists into Office and intrusting them with our Religion and all our Civil Rights The Chief Justice upon those words of the Statute concerning Sheriffs viz. That no Non-obstante shall make them good infers that those words do shew that the Parliament which made that Act concerning Sheriffs was of opinion that had it not been for that Clause the King could otherwise have dispens'd with that Act by a Non-obstante Answ. This to me seems a strained Inference and that it is very far from shewing any such Opinion in that Parliament It rather signifies that had not the Parliament inserted that Clause into the Act the King might have done again as he had frequently practis'd before viz. granted Dispensations upon that Statute which ill practice they endeavour'd to prevent for the future not approving the practice nor owning the power of doing it Ex malis moribus bonae oriuntur Leges A good Law rather condemns a contrary practice before used I heartily desire my Reader as I have done in my foregoing larger Argument carefully to observe and examine of what sort and nature those several Cases are which the Resolution of the Case of 2 Hen. 7. urges to warrant that Resolution As those Cases concerning the true Value of Lands which the King grants and that concerning the shipping of Wool to a certain Staple c. and let the Reader judge how vast a difference there is between those Statutes in the nature and import and reason of them and this weighty important Statute now before us and how little that Resolution of 2 H. 7. can be warranted by the Cases there cited being of so inferiour and minute a Consideration in comparison of the principal Case It is true Sir Edward Coke if the twelfth Report which goes by his name be truly his hath since that Resolution given in 2 Hen. 7. found out new and different Reasons and Arguments which are not urged and therefore I presume never so much as thought on at that time by the twelve Judges who gave the Resolution in that Case of 2 Hen. 7. Thus says Sir E. Saundys in his Relation of the Religion used in the West parts of the World Those of the Roman Religion made their Greatness Wealth and Honour to be the very Rule by which to square out the Canons of their Faith and then did set Clerks on work to devise Arguments to maintain them Sir Edward Coke seems to justifie that Resolution concerning Sheriffs from this ground viz. That the King hath a Soveraign Power to command any of his Subjects to serve him for the Publick Weal And this is says he solely and inseparably annexed to his Person and that this Royal Power cannot be restrain'd by any Act of Parliament 12 Rep. fol. 18. That it is not solely annex'd to the King's person appears by the several Acts of Parliament which I have cited to this purpose in my larger Argument fol. 34. where the Power of Dispensing with some particular Acts was given to the King by the Parliament and by him accepted for some short time And the whole Parliament have in divers Cases themselves exercis'd this very Power Judge of the weight of the Reasons said to be given there by Sir Edward Coke by that one Instance of his in the Case he puts of Purveyance 12 Rep. fol. 19. which he says cannot be taken from the King no not by Act of Parliament Yet we have lived to see it lately taken away by Act of Parliament which in the Judgment of a Parliament which is of the highest Authority in Law may therefore be taken from the King. And is the King in truth restrain'd from commanding his Subjects to serve him for the Publick Weal either by those Statutes that disable Sheriffs to continue in their Offices longer than one year or by our Statute of 25 Car. 2. that disables Popish Recusants to bear publick Offices Because some very unfit uncapable and dangerous persons are disabled to bear Offices of Trust and Power and this by the King 's own consent to the Act and by the advice of the great Council the Parliament and indeed of the whole Realm Does the King by this which the Judges mis-call a Restraint want for choice of fit persons to serve in Offices Doth the Publick Weal suffer by this Restraint is it not rather preserv'd by it Hath not the King Protestant Subjects enow to bear Offices And are Popish Recusants who account Protestants Hereticks and to be rooted out and destroy'd and with whom they hold no Faith is to be kept and against whom they have been continually plotting Mischief are these the fittest to be intrusted with the Defence of the Protestant Religion and with our Lives and Estates which are all concern'd more or less in every Publick Office and Trust And are those persons the Papists that have a dependance upon the See of Rome and a Forreign Power fit to be intrusted with the power of the Nation with the Militia and the Sea-Ports Is not this to commit the Lamb to the custody of the Wolf This Act that disables Papists to bear Offices cannot be justly said to be a Restraint upon the King that expression sounds ill and takes the matter by the wrong handle It rather
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.
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
custom to the observance of the same not as to the observance of the Laws of any foreign Prince Potentate or Prelate but as to the customed and ancient Laws of this Realm originally establish'd as Laws of the same by the said sufferance consents and Customs and none otherwise Upon the same ground it is that learned Hooker says that the lawful Power of making Laws to command whole Politick Societies of Men belongs so properly unto the same entire Societies that for any Prince or Potentate of what kind soever upon Earth I use his very words too to exercise the same of himself and not either by express Commission immediately and personally receiv'd from God or else by Authority derived at first from their consent upon whose persons they impose Laws it is no better than meer Tyranny King James the First in his before-mentioned Speech speaks much the same words Laws therefore says Hooker they are not which Publick Approbation hath not made so Approbation may be declar'd says he either by a personal Assent or by others by a Right deriv'd from them as in Parliaments This hath the more Authority being the Judgment in a Point of Religion not of an Historian or Lawyer but of a Reverend Divine and such an one as hath been so great a Champion for Authority and Government and for exact Conformity to Ecclesiastical Laws Some of our late Writers and Preachers have discours'd quite in another strain The Noble Author I just now cited calls the Laws Condescentions and Voluntary Abatements of the King 's Original Power supposing his Power at first was absolute Now that Preamble of that Statute which I just now read is directly contrary in the very word Original Another a certain Lawyer a Knight in a small but bold Treatise of his will by no means allow of any limitation of Power and holds it absurd to say a Government can be mixed or limited A certain Divine and Geographer in his History of the Life of a late Archbishop declares himself much of the same mind with both these and many others have trod since in their steps I therefore thought it very proper and seasonable to shew the Judgment in these Matters of an eminent Divine too a Person in all respects without exception and his Judgment is concurring with all the ancient Authors in our profession of the Common Law who being so learned and so ancient are therefore the most Competent Witnesses of our English Constitution That ancient Author of ours whose Book is stiled Fleta quia in Cartere Fletae de jure Anglicano conscripsit in the time of King Edward the First as learned Mr. Selden has noted in his Dissertatio ad Fletam c. 10. sect 2 3. This Author L. 1. c. 5. tells us Superiorem non habet Rex in Regno nisi Deum Legem Per Legem factus est Rex temperent Reges potentiam suam per Legem Non quod principi placet Legis habet potestatem Non quicquid de voluntate Regis sed quod magnatum suorum Consilio Regia authoritate prestante habita super hoc deliberatione tractatu recte fuerit diffinitum Bracton who was a Judge in the time of King Henry the Third but wrote his Book in the time of King Henry the Second stiles the Laws of England the ancient Judgments of the Just. And Briton Bishop of Hereford who publish'd his Book 5 Edw. 1. by the Command of that King and as written in the King's Name And Sir Gilbert de Thornton who was a Chief Justice in Edward the First 's time and reduced the Book of Bracton into a Compendium And Sir John Fortescu another Chief Justice and afterwards Chancelor in the time of Henry the Sixth writ all to the same effect and almost totidem verbis These Authors discourse altogether of the Imperia Legum as Livy calls it And Laws thus made by an universal consent must needs be most equal and have a far greater veneration paid them by all sorts of men The best men are but men and are sometimes transported with passion The Laws alone are they that always speak with all persons high or low in one and the same impartial voice The Law knows no favourites Hence it is that Aristotle most significantly and elegantly says That the Law is a Mind without Affection that is it binds all alike and dispences with none the greatest Flies are no more able to break through these Cobwebs than the smaller Imperatoria Majestas Legibus armata est says the Introduction to the Imperial Law These are the surest Arms and Guard about a Prince Baldus the great Lawyer says Digna vox est Majestate Regnantis Legibus alligatum principem se profiteri Sir Edward Cook in his 2 Inst. fol. 27. observes that the Nobility of England have ever had the Laws of England in great reverence as their best Birth-right and so says he have the Kings of England as their principal Royalty belonging to their Crown He there mentions our King Henry the First the Son of him that is stiled Conqueror He wrote to Pope Paschal in this manner Notum habeat sanctitas vestra quod me vivente auxiliante Deo dignitates usus Regni nostri Angliae non imminuentur Et si ego quod absit in tanta me dejectione ponerem Optimates mei totus Angliae populus id nullo modo pateretur And fol. 98. there is mention of the Letters which all the Nobility of England by assent of the Commonalty in the time of Edward the First wrote to Pope Boniface viz. Ad Observationem Defensionem consuetudinum Legum Paternarum ex Debito prestiti Sacramenti astringimur quae manutenebimus toto posse totisque viribus cum Dei auxilio defendemus Nec etiam permittimus aut aliquatenus permittemus tam insolita indebita prejudicialia alias in audita Dominum nostrum Regem etiam si vellet facere seu quomodo libet attemptare Sealed with the several Seals of Arms of 104 Earls and Barons And the Noble King Edward the First took no offence at the stout and resolute penning of this Letter but wrote himself to the Pope to the same effect And yet it contains in it a kind of a Non obstante to what the King should do by way of submission and compliance with the Pope Nor is a Just Law any restraint to a Just Liberty it rather frees us from a Captivity and Servitude viz. to that of our Wills and Passions It is true this obligation and binding of the Law is very uneasie to such Men as will be slaves to their Lusts and Appetites They cry out let us break these Bonds asunder and cast away these Cords from us but to such as are virtuous and just and pious the Laws are a Direction and Protection The Orator truly says Legum id circo omnes servi sumus ut liberi esse possimus The true English of
says that Historian Multis adjectis durissimus Conditionibus and amongst other per illud verbum adjectionem detestabilem Non obstante quae Omnem Extinguit Justiciam In another Bull he requires the payment of a Sum of Mony from the English Clergy Quocunque Privilegio seu Indulgentia Non obstante Licet presentes expressam de ipsis non faciant Menconem This very Phrase is grown most familiar in Letters-Patents with us and we see from whence it hath been borrowed That Temporal Princes at that time did not practise the like does evidently appear not only by their frequent Complaint of them but the Historian tells us It was then grievously feared that the Kings and Great Men would in time be infected with the ill Example of the Pope his words are Quod multi formidabant vehementer Ne Principes Laici Seculares exemplo Papae Edocti Non obstante talis vel talis Chartae tenore would revoke their Concessions too Therefore as yet it was not in practice by Temporal Princes no not in Letters-Patents much less in Laws I shall give one instance wherein we shall find the Pope teaching this very Lesson to the King of England K. H. the 3d and instructing him as his Schollar to write after his Copy King H. the Third had made several Grants to his Subjects Bishops Noblemen and others and had oblig'd himself by Oath never to revoke them Pope Gregory the Ninth by his Bull which Mr. Prin who had the keeping of the Records in the Tower says he found in the White Tower under Seal the Pope commands the King to revoke these Grants Juramento Instrument is predictis nequaquam obstantibus King Henry the Third was easily taught this Lesson and did soon put it in practice and being reprov'd by some about him for using of Non Obstante's the King justified himself by the Example the Pope had given him Nonne Papa says he facit similiter subjungens in Literis suis manifeste Non Obstante aliquo Privilegio vel indulgentia But as yet it was not exercised as to Acts of Parliament till a long time after What sad Apprehensions it rais'd in good Men may appear by an Example or two When one of these Patents with a Non Obstante in it was produc'd in the Courts of Westminster one Roger de Thurkeby who was a Judge of the Court of Common Pleas in the time of King Henry the Third upon the hearing of it says the Historian Ab alto ducens suspiria he fetcht a deep sigh and De predictae adjectionis appositione That is concerning this Clause or Addition of Non Obstante Dixit heu heu hos ut quid dies expectavimus ecce jam Civilis Curia exemplo Ecclesiasticae Coinquinatur a Sulphureo fonte Rivulus intoxicatur This plainly shews the time when the use of them was first introduced into England in Civil and Temporal Cases they were not used before the time of King Henry the Third which is not ancient enough to make a Prescription by the Rules of our Law and we see from whence they learnt it I shall now cite the Judgment of a Famous and Learned Bishop of those times concerning these Non Obstante's that of Robert Grostest or Great-head who per excellentiam was generally stil'd no more but Lincolniensis in the Book of his that is Entituled De Cessatione Legalium Publish'd by the late Dean of Windsor Dr. Reeves There are some Testimonies given of the Bishop out of Authors in the beginning of that Book Among others it is remembred of him that he sent a smart Epistle to the then Pope wherein he does cry out upon the Pope for that the Pope's Bulls did superaccumulate as he terms it the words Non Obstante which words says that good Bishop of Lincoln did Christianae Religionis puritatem hominum tranquillitatem perturbare And he does thereupon affirm the Pope to be Antichrist Nonne says he Antichristus merito dicendus est And to prove him to be Antichrist he further charges him Privilegia Sanctorum Pontificum Romanorum praedecessorum suorum Papa impudentur annullare per hoc Repagulum Non Obstante non erubescit sic diruit Reprobat quod tanti tot Sancti aedificarunt When Innocent the Fourth read this Bishop's Letter he fell a swearing by Peter and Paul that he would Confound him In tantam confusionem praecipitaret ut totius mundi fabula foret stupor prodigium And that he would command the King of England whom he there insolently term'd Noster Vasallus a Tenant or Vavasor Et ut plus dicam Mancipium his Property illum nutu nostro in carcerare But the Cardinals then about the Pope advised him to consider better of it for said they Ut vera fateamur vera sunt quae dicit Catholicus est imo Sanctissimus Of this Bishop says Mr. Camden in his Britannia he was Terrificus Papae Regis Redargutor manifestissimus veritatis amator Henry de Knighton adds this of him Ad Innocentium Papam misit Epistolam satis tonantem a thundring Epistle qua de re ad curiam vocatus Excommunicatus appellavit a Curia Innocentii ad Tribunal Christi And this Usurped Power tho' used with more modesty at first yet in a short time it grew to that heighth that it prov'd intolerable and insolent The Bull of Pope Pius the Fourth publishes Decrees Non obstantibus Constitutionibus Ordinationibus Apostolicis Another Dispensation of the same Pope's runs in these words viz. Licet Christus post coenam instituerit sub utraque Specie Panis Vini Venerabile Sacramentum tamen hoc Non Obstante c. The Pope takes upon him to Dispense with that Sacred Institution A conficientibus for so he prophanely expresses it sub utraque a Laicis tantum modo sub Specie Panis suscipiatur In the Oath of a Bishop to the Pope extant in the Roman Pontifical set out by Pope Clement the Eighth the Bishop upon his Oath doth acknowledge amongst other Regalia Petri That the Pope can make void Promises Vows Oaths and Obligations to Laws by his Dispensations Dr. Marta de Jurisdictione affirms That Papa de Plenitudine potestatis potest Dispensare contra jus Divinum contra Apostolum est super omnia Concilia quae interpretatur tollit Corrigit The Glossator upon the Canon Law avowed by the Rota of Rome as the History of the Council of Trent does quote him holds the Pope can Dispense against the Old Testament and the Four Evangelists and against the Law of God. Bishop Jewel in his Defence of The Apology of the Church of England against Harding brings in one of their Canonists that holds That the Pope Privilegium dare potest contra jus Divinum Papa Dispensare potest de Omnibus preceptis veteris Novi Testamenti It is part of the Description given of Antichrist by the Prophet Daniel
of this Prerogative and Power of dispensing with a disability impos'd by Act of Parliament for I do not purposely dispute it in any other Case but as they are coincident with this The first that we meet with is that of 2 H. 7. fol. 6. and it was by all the Justices in the Exchequer-Chamber The Case thus King Edward the Fourth granted the Office of Sheriff of a County to the Earl of Northumberland for the Life of the Earl and the Justices held the Patent good there being a Non Obstante in it to the Statutes Let us look into the Statutes that forbid a Sheriff to continue in his Office longer then one Year There had been several ancient Statutes made to that purpose but they all prov'd to be of little effect for Patents were still granted to hold the Office of a Sheriff for a longer time than one Year At length came the Stat. 23. H. 6. c. 8. which recites the former Statutes forbidding any Persons continuance in the Office of Sheriff above one Year and observing the great Oppressions and Abuses to the People that did arise from it and how that yet they were granted contrary to those Statutes This Statute therefore of 23 Hen. 6. ordains that those Statutes shall be duly observ'd And further ordains That if any occupy that Office contrary to those Statutes or to the effect or intent of any of them he shall forfeit two hundred Pound yearly as long as he occupieth contrary to any of those Statutes and that every Pardon granted of that Forfeiture shall be void and that all Patents made of the Office of Sheriff for Years or any longer time shall be void any Clause or word of Non Obstante in any wise put or to be put in such Patents notwithstanding and every such Person is thereby disabled to bear that Office. Nothing could be penn'd stronger than this Statute and it is a Law made by the Supream Legislative Power of the Nation and it expresses the former granting of Non Obstante's to be a great abuse and to be contrary to Law. Yet contrary to the express words and clear intent and meaning of this Statute did all the Judges resolve in 2 H. 7. That by a Non Obstante a Patent for a longer time than a Year should be good of the Sheriffs Office. The King and both Houses were of Opinion that they could make a Non Obstante in such Case void The Judges are of a contrary Opinion that a Non Obstante shall make void the Statute Here is an Inferiour Court over-ruling and controuling the Judgment of a Superiour Court. The Judges who are but Jura dicere contradict those who have the Power Jura dare as well as Jura dicere and of Correcting the Errors of the highest Court in Westminster and controuling their Judgments The Statute was a meer idle nugatory thing if it were not to restrain the granting of a Non Obstante if it did not that it did nothing The King himself alone if he had pleas'd could without any Act of Parliament have reform'd the Abuse by refusing to pass any such Patents for a Sheriffs continuing in his Office longer than a Year But the King was sensible of the Abuses and therefore willing to be restrained from passing any more such Patents and to avoid any importunity that might be used for the obtaining any such Patents and therefore consented that a Law should pass to make such Patents void And after all shall the King if he pleases still make the like Grants Why then the Act was of no manner of use and operates nothing and the Resolve of the Judges has made the Act a meer idle vain thing But the twelve Judges in 2 H. 7. have so resolv'd and the only use they would allow to all these Acts of Parliament is no more than this that if the King grant a Patent to one of the Sheriffs Office for more than one Year and there be no Non obstante in the Patent that then for want of a Non obstante the Patent should be void by those Acts of Parliament which otherwise would have been good had not those Acts made them void But how easie would it be for one that obtains such a Patent to get the Non obstante to be inserted and who would accept such a Patent without a Non obstante and to whom would the Non obstante be denied to whom such a Patent is granted the Lord Hobart in the Case of Needler against the Bishop of Winchester fol. 230. says it is denied to none and that it is in the power of the Attorney-General The Reasons given by the Judges in 2 H. 7. for that resolution are because the King had always used such a Prerogative of dispensing with the Acts of Parliament that required the true value of the Lands and the certainty of the Lands to be mentioned in his Grants of Lands and with the Acts concerning the shipping of Wool and pardoning of Murder without express mentioning of the Murder These Cases are nothing alike but of a trifling consideration in respect of the Act we have in hand of 25 Car. 2. And in these Cases the Penalty and Forfeitures are given to the King and they concern the King's profit only to dispence with them but in our Case the Safety of the Government salus populi and the maintaining of the true Religion establish'd by Law are all concern'd and so the Case is not alike And to compare this with those Cases is parvis componere magna This Opinion and Resolution of the Judges in 2 H. 7. has been the Foundation of all the like Opinions that have since that time been given of the King's Power of Dispensing with Disabilities and Incapacities impos'd by Acts of Parliament Upon what ground the Justices held the Patent of the Sheriff's Office good to the Earl of Northumberland for Life does not appear whether because it had formerly been an Office of Inheritance and so within the Exception in the Statute of 23 H. 6. or whether by virtue of a Non obstante to the Statutes as Ratclif only argues for the rest say nothing of the Non obstante Some Resolutions have been to the contrary of that of 2 H. 7. as in the Case that I cited of the King against the Bishop of Norwich in the Lord Hobart's Reports and the Case of Sir Arthur Ingram where it was adjudged that the King could not dispence with a Disability And the Book of 2 R. 3. fol. 11 12. concerning Waterford in Ireland is of the King's Power to dispence with an Act of Parliament where the Forfeiture is given only to the King so it comes not home to our Case This Resolution of the Judges in 2 H. 7. was the Precedent and leading Case to all the subsequent Opinions and was the Foundation of them and they all must stand and fall by it Now it will be very
and where it is a collateral Suit not depending upon that Record An Action against the Sheriff for an Escape of one taken in Execution this is a dependant Action and is grounded upon the Record of the Judgment given against the Party that escap'd The Sheriff cannot aver any thing against that Record and examine it over again nor can he take any advantage of Error or erroneous proceeding in obtaining that Judgment Saunders Rep. 2 part 101. So in an Action of Debt grounded upon a Judgment or in an Audita quaerela to be reliev'd upon a Judgment And so in our Case this Action of Debt for the 500 l. is grounded upon the Conviction which must stand for truth as long as it remains in force not avoided by Error or Attaint A Writ of Error to reverse a Judgment is a dependant Action In error the Plaintiff may not averr any thing against the Record Mullens versus Weldy Siderfin's 1st part 94. Error was sued in the Kings-Bench to reverse a Judgment given in the Palace-Court And the Plaintiff in Error assign'd for Error that the Duke of Ormond who is principal Judge of that Court by Patent was not there It was agreed by the Court that it might not be assign'd for Error for it was contrary to the Record But per Cur. in an Action of Trespass or false Imprisonment which says that Report are collateral Actions he may falsifie and assign that if he be taken upon such Judgment So if a man be indicted and convict of an Assault and Battery and afterwards the person so assaulted brings his Action for the Battery this hath no dependance upon the Indictment or Conviction for it may be sued though there were no Indictment but is a distinct and collateral Suit. The Indictment and Verdict is no Estoppel nor can so much as be given in Evidence as is held by the whole Court in the Case of Sampson versus Yardley and Tothill 19 Car. 2. B. R. Kebles's 2 part 384. The like in an Appeal of Murder Kebele's 2 part 223. Another Penalty upon the Offender against this Statute of 25 Car. 2. is That he shall be disabled to sue in any Action Now suppose a person convict at the Assizes sues an Action may not the Defendant in that Action take the advantage of that Disability and plead the Conviction As in Case of an Outlawry pleaded in Disability there need not be set forth all the proceedings in that Suit wherein the Plaintiff was outlawed but he may plead the Record of the Outlawry and rely upon it and it shall not be examin'd whether there was any just cause to sue him to the Outlawry or not The Indictment the Defendant's Plea to it and the Verdict upon it have determin'd the matter of Fact that the Defendant is guilty of the Offence against this Act of Parliament The Act it self hath pronounc'd the Judgment which consists of many particulars one whereof is That the Defendant shall forfest 500 l. to him that will sue for it And the Action of Debt for the 500 l. brought by the Plaintiff grounded upon all these is in the nature of an Execution And all these put together are not several and distinct Suits but in effect all but one Suit and Process one depending upon the other The second Point is Whether the Dispensation pleaded by the Defendant be a good Bar to the Action of Debt And this is properly called The Matter in Law and the great Point of the Case for which I refer the Reader to my Argument at large POSTSCRIPT BEING SOME Animadversions UPON A Book writ by Sir EDW. HERBERT Lord Chief Justice of the Common Pleas ENTITULED A short Account of the Authorities in Law upon which Judgment was given in Sir Hales's Case SINCE the finishing of my Argument about the Power of Dispensing with Paenal Statutes a Book came to my hands touching the same subject entituled A short Account of the Authorities in Law upon which Judgment was given in Sir Edward Hales his Case written by Sir Edward Herbert Chief Justice of the Common Pleas in vindication of himself And although I am of opinion that the substance of all the Arguments contained in the said Book are fully answered in my aforesaid Discourse yet I hold it necessary to make some Animadversions upon the said Book and to point out readily to the Reader the several Pages of my Discourse wherein the Arguments of the Chief Justice are more directly and particularly treated of and answered And there being great Reverence justly due to a Person that bears so high a Character as also to a Judgment given in that Superiour Court of the King's Bench and by advice of all but two of the rest of the Judges as I now hear some short Apology had need be used for that freedom I have taken to animadvert upon it being as I am but in a private station In short therefore I have not undertaken it out of any vain conceit of my own Abilities but out of a sincere desire to inform such as in the approaching Parliament are like to have this great Case in Judgment before them and some may possibly not be at leisure as I have been to study the Case the matter being of a mighty importance Nor have I entred the Lists upon any contentious humour or taking any advantage of the late Happy Change of publick Affairs I am I thank God more inclin'd to commiserate the Distress that may befal any persons by the change of the times it having been my own case so lately although they differ from me in Judgment or Interest I am very far from insulting over any whatever hard usage I my self have met with Nemo confidat nimiûm secundis Nemo desperet meliora lapsus My Apology is this 1. I was engaged in the Argument before the coming forth of this Book and it happening into my hands before my publishing of my Discourse I could not decline the observing something upon it without being suspected to have given up the Cause 2. The Lord Chief Justice himself hath by his Book given fresh occasion fairly to discuss the point again by declaring that he expects as we all do that it will receive a disquisition in Parliament 3. And as the Chief Justice hath endeavour'd with as much as can be said to give the World satisfaction in the justice and right of the Case to maintain the Judgment given so he is well known to be of that ingenuity and good temper and candour as willing to receive a satisfaction if any further Argument to the contrary may be so happy as to convince him The Chief Justice Herbert pag. 6. gives us the Definition of a Dispensation out of Sir Coke's 11th Report fol. 88. viz. Dispensatio mali prohibiti est de jure Domino Regi concessa propter impossibilitatem praevidendi de omnibus particularibus And again Dispensatio est mali prohibiti provida relaxacio utilitate ceu
Distinction and weigh the Reasons so given we shall find it is without any just ground The damage done to the particular person in the Cases past in the first part of this distinction are meerly his own proper and peculiar damage and he is intituled to his particular Action for it in his own proper personal Right and therefore if he discharge and dispense with them it is no wrong to any other man. He may do what he will with his own But the Cases in the second part of this Distinction are where the King hath a right to the Suit and the offence and damage are said to be to him only But are they so as the former in his own personal right as his Lands and other Revenues are or are they to him but as a Trustee for the Publick for which reason he is called Creditor Poenae and may he therefore upon the like reason dispense with them or dispose of them as a Subject may do with his own particular Interests Again Shall a publick Damage and Injury to the whole Nation be more dispensable by the King than the loss of one private man fuit haec sapientia quondam Publica privatis secernere And therefore in my apprehension the King cannot in such Cases of Dispensations be truly said to wrong none but himself and it is not agreeable to the Definition before given Utilitate Compensata for the King wrongs the whole Realm by it Where if he grants a Dispensation with a Penal Law of the first sort of this distinction he only wrongs some particular persons The Cases and Authorities for Dispensations in our Books that were granted in ancient times will generally be found to be only where the Penal Statutes were made for the King 's own proper interest and benefit As his dispensing with the Statute of Mortmain For in such Cases it was to the King 's own loss only in Cases where the King might by Law have given away his Lands or Services So the King may in his Patent of Grant of Lands dispense with the Statutes that require there shall be mention of the true Values of them And by a Non-obstante to those Statutes which is now generally used the King does in effect declare that it is his pleasure to grant those Lands whatever the Value of them be more or less and the Statute does by express words save a liberty to the King in that Case The King is not a Trustee for others in such Cases nor can these Dispensations be said to be directly to the damage of the Publick And such Penal Laws as meerly concern the King 's own Revenue or Profit may justly be thought to be intended to be made only to put the King's matters into an ordinary method and course and so save the King a labour as the Lord Hobart says and so prevent the King 's being surpriz'd or mis-inform'd when Patents are gained from him and not design'd to tye the King's hands or to restrain his power as out of all doubt was done and intended by the Law-makers in our Act of 25 Car. 2. But in all the late Cases and Authorities which we meet with in our Books concerning Non-obstante's and Dispensations as in the time of King Henry the Seventh and so downward to this day we shall find them practising upon such Penal Statutes as meerly concern the Publick Good and Benefit and the Laws of such a nature by the breach of which the whole Nation suffers While some particular persons it may be by giving a large Fine or a yearly Sum obtain the favour to be dispens'd with and exempt from a Penal Law while all others continue to be bound by it As for Example Where a Statute forbids the Exportation of Wool or of Cloth undyed or undress'd under a Penalty such a Law is greatly for the Publick Good and it takes care that our own People shall have Employment and Maintenance Yet this is such a Law as according to the receiv'd Distinction the King may dispense with there being no particular damage to one man more than to another by breach of such a Law although it be a mighty damage to the whole Nation For by such a Dispensation the person so dispens'd with to Export such White Cloth undyed will have the sole Trade which before the making of that Penal Statute was equal and common to all I wish the House of Commons would enquire what vast Riches have been heretofore gotten by such as have obtain'd the Dispensations with this Penal Statute besides the Sums they paid to the Crown for them These are meer Monopolies In such a Case it may rightly be applied That Sin taketh occasion by the Law. It had been better for the Nation that such Laws were never made being no better observ'd for here again the Dispensation is neither Utilitate nor Necessitate pensata Look into the Case of Thomas and Sorrell and you will find few or no Cases of Dispensations cited out of our Books but of the time of King Henry the Seventh and much more of very late times so that the ill practice is still improving and stretching The Lord Chief Justice Herbert in the next place pag. 9. proceeds to mention the great Case of 2 Hen. 7. a Resolution of all the Judges in the Exchequer-Chamber upon the King 's dispensing with the Statute of 23 H. 6. cap. 8. That no man should be a Sheriff above one year This is the great Leading Case and Authority upon which the main stress is laid to justifie the Judgment given in Sir Edward Hales his Case I would avoid repeating what I have already so largely said to this Authority to which I must refer my Reader by which I hope it is most evidently made out that the King neither hath nor never had any just Right or Power to elect Sheriffs But the right of Electing was anciently and originally belonging to the Freeholders of the several Counties and since it was unjustly taken from them as they have ever been on the losing hand it hath been lodged in the great Officers of the Realm as the Lord Chancellor Lord Treasurer Lord Privy-Seal and the Judges c. as appears by the several Statutes And they are to make such Choice every year in the Exchequer on a day appointed by the Statute for that purpose So that the Sheriffs are by those Statutes to continue in their Offices for one year only And the King cannot hinder such Election Only by his Patent or Commission to the Sheriff hath he used to signifie to the Sheriff himself that is so chosen and to publish to all others who the person is that is so chosen This is all the use of the Patent but it is the proper Election of those great Officers that truly vests them in their Office And it does as clearly appear that when former Kings have dispens'd with a Sheriffs continuing in his Office for longer than one year contrary to the
imports the King's Declaration and Resolution by advice of his great Council to employ none in Offices and Places of Trust but such as are most capable and fit and will most faithfully answer the great Ends for which they are so intrusted that is the preservation of the Protestant Religion which is the true English Interest And this agrees with the Rules of the Common Law That if an Office be granted to one that is Inidoneus the Grant is void though granted by the King himself Of this I have treated more largely in my Argument fol. 37. The Lord Chief Justice Herbert pag. 16. asks the Question Whether so many solemn Resolutions of all the Judges of England in the Exchequer-Chamber are not to be rely'd upon for Law And I answer That if they were ten times as many more yet they are not to be rely'd on against many express positive Acts of Parliament directly to the contrary For what words could the Parliament use more emphatical and express and more to the purpose than by saying That a Non-obstante or a Dispensation or a Grant of such a thing prohibited by that Law shall be absolutely void and ipso facto adjudged void and the person made uncapable to take And is not a Judgment in Parliament and by Act of Parliament of the highest Authority But says the Chief Justice fol. 16. the constant practice hath been to dispense with the Statute of Sheriffs I answer It hath also been a very frequent practice too for the King to make such persons Sheriffs as were none of the number nominated or chosen as aforesaid by the Chancellor Treasurer Judges and other great Officers and it passes for currant that he may so do though it be a vulgar Errour For it hath been resolv'd by all the twelve Judges to be an Errour in the King. See Sir Coke's 2 Instit. or Magna Charta fol. 559. and yet it is practis'd to this very day The Chief Justice pag. 18. seems to excuse Popish Recusants for not qualifying themselves for Offices by taking the Oaths and the Test c. for that no man says he hath it in his power to change his opinion in Religion as he pleaseth and therefore it is not their fault It is an Errour of the mind c. Answ. Here is no occasion taken to find fault with them for their Opinion let them keep their Religion still if they like it so well who hinders them This Act of 25 Car. 2. imposes no Penalty upon them for their Opinion But is there any necessity of their being in Offices Must they needs be Guardians of the Protestant Religion The Penalty upon them by this Act is not for their Opinion but for their presuming to undertake Offices and Trusts for which they are by King and Parliament adjudg'd and declar'd unfit Page 20 21. The Chief Justice Vaughan is brought in arguing for the Kings Power of Dispensing with Nominal Nusances as he is pleas'd to call and distinguish Nusances The word Nominal as there understood imports that though a Parliament declares any thing to be a Nusance as sometimes they do in Acts of Parliament to render them indispensable which yet in its proper nature would not otherwise be so conceiv'd to be that such a Nominal Nusance as he holds may however be dispens'd with by the King though regularly by Law the King may not dispense with any Nusance Answ. Shall any single or particular person though a Chief Justice presume to call that a meer Nominal Nusance which a Parliament by a solemn Act and Law have adjudg'd and declar'd to be a real Nusance Are we not all concluded by what a Law says This Arrogance is the Mischief now complain'd of The Chief Justice Herbert pag. 22. at the lower end says That from the abuse of a thing an Argument cannot be drawn against the thing it self I agree this is regularly true yet we have an Instance to the contrary in the Scripture in that point of the Brazen Serpent But in our Case the abuse doth arise from the very nature of the thing it self from the constitution of it For the King practises no more in dispensing than what these Resolutions of the Judges allow him to do by this pretended Prerogative The Errour is in the Foundation They have made his Power to be unlimitted either as to number of persons or as to the time how long the Dispensation shall continue Sir Edward Coke says and so the other Books That the King is the sole Judge of these Nec Metas Rerum nec Tempora Ponunt The Chief Justice Herbert fol. 24. cites two clear Concessions as he is pleas'd to call them of all the Commons of England in Parliament which he esteems much greater Authorities than the several Resolutions of all the twelve Judges But how far these are from Concessions will easily appear to an indifferent Reader They are no more than prudent and patient avoiding of Disputes with the several Kings And there are multitudes of the like in the old Parliament-Rolls It is but an humble clearing of themselves from any purpose in general to abridge the King of any of his Prerogatives which have always been touchy and tender things but it is no clear nor direct allowance of that dispensing there mention'd to be any such Prerogative in him However I am glad to see an House of Commons to be in so great request with the Judges It will be so at some times more than at others Yet I do not remember that in any Argument I have hitherto met with a Voteâ— or Order or Opinion of the House of Commons hath been cited for an Authority in Law before now Will the House of Peers allow of this Authority for Law It will be said That this is but the acknowledgment of Parties concern'd in Interest which is allowed for a good Testimony and strongest against themselves Answ. I do not like to have the King and his People to have divided Interests Prerogative and the Peoples Liberties should not be look'd upon as Opposites The Prerogative is given by Law to the King the better to enable him to protect and preserve the Subjects Rights Therefore it truly concerns the People to maintain Prerogative I could cite several Parliament-Records wherein the poor House of Commons have been forced to submit themselves and humbly beg pardon of the King for doing no more than their Duty meerly to avert his displeasure See the Case of Sir Thomas Haxey whom the King adjudg'd a Traytor for exhibiting a Bill to the Commons for the avoiding of the outrageous Expences of the King's House 20 R. 2. num 14 15 16 17 and 23. and the Commons were driven to discover his Name to the King and the whole House in a mournful manner craving pardon for their entertaining of that Bill No doubt as good an Authority against the Commons for so sawcily medling in a matter so sacred and so far above them Yet afterwards