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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A25519	An Answer to a late pamphlet intituled, The judgement and doctrine of the clergy of the Church of England concerning one special branch of the King's prerogative, viz, in dispensing with the penal-laws shewing that this is not affected by the Most Reverend Fathers in God, the Lords Arch-Bishops, Bancroft, Laud and Usher ... the Lord Bishop Sanderson ... the Reverend Doctors, Dr. Hevlin, Dr. Barrow, Dr. Sherlock ... Dr. Hicks, Dr. Nalson, Dr. Puller, so far as appears from their words cited in this pamphlet : in a letter to a friend.		1687 (1687)	Wing A3309; ESTC R15256	30,429	41

it foll ws That the being of Soveraign Power is independent on Laws That is As a Soveraign Prince does not receive his Power from the Law so should he violate the Laws by which he is bound to Govern yet he does not forfeit his Power H● breaks his Faith to God and to his Country but he is a Soveraign Prince st●ll And in this sense the Dr. affirmed That Soveraign Power is inseparable from the Person of a Soveraign Prince 4. Hence it plainly appears that every illegal Act the King does is not an Inauthoritative Act but lays an Obligation on Subjects to yield if not an Active yet a Passive Obedience For the King receives not his Soveraign Authority from the Law nor does he for●…t his Authority by breaking the Law and therefore he is a Soveraign Prince still and his most illegal Acts though they have not the Authority of the Law yet they have the Authority of Soveraign Power which is irresist●ble and unaccountable Now this shows in what sense the Doctor immediately adds It does not become any Man who can think three consequences off to talk of the Authority of Laws in derogation to the Authority of the Soveraign Power Which does not signifie that the Law cannot abridge the Kings dispensing Power nor have the Authority of a Rule to him which he does not meddle with but that no Law can have such Authority over a Soveraign Prince as to un-king him or deprive him of his Soveraign Authority and make all his illegal Acts inauthoritative if he breaks it For that is the direct answer to the Objection and he seems to have looked no further and indeed to speak the truth his Argument holds no further for it does not follow that the King is not bound to keep the Laws but he is a King still and cannot forfeit his Sovereign and irresistable Authority though he breaks them But if this Doctors Judgment be of any force we may learn what his Opinion was if he be not now better informed by his answer to the fourth Objection though possibly he will not thank me for my pains in transcribing it P. 207. 4. The next objection against the Doctrine of Non-resistance is this That it destroys the difference between an absolute and limited Monarchy between a Prince whose Will is his Law and a Prince who is bound to govern by Law which undermines the Fundamental Constitutions of the English Government To this he answers The difference between an absolute and limited Monarchy is not that Resistance is lawful in one case and unlawful in the other for a Monarch the exercise of whose Power is limited and regulated by Laws is as irresistable as the most absolute Monarch whose Will is his Law and if he were not I would venture to say that the most absolute and despotick Government is more for the publick good than a limited Monarchy But the difference lies in this that an absolute Monarch where by absolute it is plain he means a despotick Prince for otherwise a limited Monarchy may be called and often is an absolute Sovereignty is under the Government of no Law but his own Will He can make and repeal Laws at his pleasure without asking the consent of any of his Subjects he can impose what Taxes he pleases and is not tied up to strict Rules and Formalities of Law in the execution of Justice But it is quite contrary in a limited Monarchy where the exercise of the Soveraign Power is regulated by known and standing Laws which the Prince can neither make nor repeal without the consent of the People c. No you will say the case is just the same For what do Laws signifie when a Prince must not be resisted though he break these Laws and govern by an arbitrary and lawless Will He may make himself as absolute as the Great Turk or the Mogul when ever he pleases For what should hinder him when all mens hands are tied by this Doctrine of Non-resistance now it must be acknowledged that there is a possibility for such a Prince to govern arbitrarily and to trample upon all Laws And yet the difference between an absolute and limited Monarchy is vastly great 1. For this Prince though he may make his Will a Law to himself and the only Rule of his Government yet he cannot make it the Law of the Land He may break Laws but he cannot make nor repeal them and therefore he can never alter the Frame and Constitution of the Government though he may at present interrupt the regular administration of it And this is a great security to Posterity and a present restraint upon himself 2. For it is a mighty uneasie thing to any Prince to govern contrary to known Laws He offers as great and constant violence to himself as he does to his Subjects The breach of his Oath to God and his promises and engagements to his Subjects makes the exercise of such an arbitrary Power very troublesom And though his Subjects are bound not to resist him yet his own guilty fears will not suffer him to be secure And arbitrary Power is not so luscious a thing as to tempt Men to forfeit all the ease and pleasure and security of Government for the sake of it 3. Though Subjects must not resist such a Prince who violates the Laws of his Kingdom yet they are not bound to obey him and serve him in his Vsurpations Subjects are bound to yield an active obedience only according to Law though they are bound not to resist when they suffer against Law Now it is a mighty uneasy thing to the greatest Tyrant to govern always by force And no Prince in a limited Monarchy can make himself absolute unless his own Subjects assist him to do so 4. And yet it is very dangerous for any Subject to serve his Prince contrary to Law though the Prince himself is unaccountable and irresistible yet his Ministers may be called to an account and be punisht for it and the Prince may think fit to look on qu●…tly and see it done or if they escape at pre●ent it may be time enough to suffer for it under the ●ext Prince which we see by experience makes all Men wary how they serve their Prince against ●…aw None but Persons of desperate Fortunes will do this ●…ated and these are not always to be met with and 〈◊〉 ●eldom fit to be e●…pl●…d 5. And therefore 〈◊〉 may observe that by the ●undamental Laws of our Government 〈…〉 Prince 〈◊〉 govern 〈…〉 so he is irresistible 〈◊〉 shews that our wise Law-makers d●d n●t think that Non resistance was destructive of al●…ited M●…y Not long since this was ●…gh 〈…〉 D●ctri● and I am sure it is very necessary to keep Pe●…e 〈…〉 Prince 〈◊〉 for which reason I 〈…〉 though it doth not reach the height 〈…〉 And now I find our Author begins to run ●ow when 〈◊〉 ●akes up with Doctor N●lson who says In the Kings Power it is to remit

Now I am not concern'd to enquire what Dr. Hicks believes about the Dispensing Power but what he has said and our Author has not produced one word out of his Book about it and therefore I suppose he could not for his own words had been a better Authority in this case than Sir Robert Pointz I am sure where he particularly states and enumerates the Rights of Soveraignty he takes no notice of it for as he reckons them up they are these Jovian or an Answer to Julian the Apostate chap. 10. p. 201. Ed. 1. 1. To be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 accountable to none except God 2. To have the sole Power and disposal of the Sword 3. To be free from all Coercive and vindicative Power 4. Not to be withstood or resisted by force upon any pretence whatsoever Lastly To have the Legislative Power that makes any form of words a Law The Soveraign Power may indeed be limited as to the exercise of this Power which may be confined to Bills and Writings prepared by others but still it is the Soveraign Authority who gives Life and Soul to the dead Letter of them Here is nothing at all about this Dispensing Power when there was a fair occasion for it Possibly this was an Omission which at that time he did not think of that not being the matter of Dispute or it may be he was not so well instructed and did not think this essential to the notion of all Soveraign Power as seems probable from his two sorts of Imperial Power either of which make an Imperial Soveraign such as is limited by the Laws of God and nature only or such as is limited by the Laws of God and nature and Civil Laws and Pactions too The Power in both sorts of Soveraigns is Imperial full perfect absolute and entire but the exercise of it is differently bounded and regulated one by the Laws of God and Nature and the other by human positive Laws and the latter limitation doth no more destroy the fulness and perfection and Supremacy of the Power than the former because the Soveraign who is under Political limitations as to the exercise of his Power hath his Power nevertheless as absolutely fully and entirely in himself as he that is only under the limitation of Divine and natural Laws De laudibus legum Angliae C. 9. Rex Angliae principatu nedum Regali sed Politico suo populo dominatur Regnum sic institui ut Rex non libere valeat populum tyrannide gubernare quod solum fit dum potestas regia lege politica cohibetur Thus the learned Chancellor Fortescue grants the King of England to have Regal or Imperial Power though it be under the restraint and regulation of the Power political as to the exercise thereof and as a Fountain that hath Channels and Pipes made for it within which its waters are bounded in their passage and through which they are to flow is nevertheless as perfect a Fountain and hath its waters as fully and entirely within it self as any other Fountain whose waters flow from it at liberty without any such regulation so a King whose Imperial Power is limited by human Constitutions in the exercise of it is nevertheless as compleat a Soveraign and hath the Soveraign Power as fully and entirely within himself as he who is at liberty to exercise his Authority as he will To be arbitrary is no more of the Essence of an Imperial Soveraign than to be free in the course of its waters is of the Essence of a Fountain but as the Fountain of an Aqueduct for example is as perfect in its kind and generally more beneficial and useful to mankind than a free flowing spring so limited Soveraigns are as perfect and essential Soveraigns as the purely arbitrary and despotick and generally more beneficial and salutary to the world A great deal more the Reader may find to this purpose in the same place which possibly may be the reason why he did not mention this absolute Dispensing Power among the Essential Rights of Soveraignty because he might imagine that this might not be essential to all Soveraigns not to those the exercise of whose Soveraign Power is regulated by Civil and Political Laws who yet are as perfect Soveraigns as the most arbitrary and despotick Princes But I do not love to guess at other mens thoughts nor shall I undertake to justifie or condemn this Notion of his but I think the Reader by this time sees what little reason there was to appeal to the Dean of Worcester to justifie the dispensing Power His next Authority is Arch-bishop Bancroft who it seems asserted That the Judges are but the Kings Delegates and that the King may take what causes he shall please to determine from the determination of the Judges and determine them himself which the Archbishop said was clear in Divinity that such Authority belongs to the King by the Word of God in Scripture Now I wonder this Writer would produce this and that for these two Reasons 1. Because at that very time in the Presence of King James my Lord Chief Justice Coke contradicted the Arch-bishop and told the King he could not do it and gave him his Reasons why he could not as the Ch. Justice himself reports it in that place to which this Writer refers 12 Co. Fol. 64. 5. Jac. Now methinks here he loses more than he gets for if he have got a great Church-man he has lost a very great Lawyer whose Judgment is more considerable in such matters for as the Arch-Bishop could tell him what hath been done in Scripture-times under the Jewish Common-wealth that Moses and David and Solomon and other Kings of Israel administred Justice in their own Persons So the Ch. Justice could tell him what the Constitutions of this Kingdom and the regular form of Law will admit which is more to our purpose 2. I wonder a little more how he can prove the dispensing Power from this The King may judg what causes he pleases himself Ergo He can dispense with all Laws when he pleases Does the Power of hearing and trying causes and expounding and interpreting Laws include in it a power of dispensing with Laws Then it seems every Judg is by his Office a Dispenser with Laws If the King have Power of determining causes in his own person must he judg with or without Law If he judg according to the Laws how does this prove his Power of Dispensing with Laws Surely this is a Power which can result only from a Supreme absolute and unlimited Soveraignty not from a mere power of hearing and judging causes according to the true meaning and interpretation of Laws so little does this Writer understand what he writes about and it is great pity there is no more care taken that the Kings Prerogative do not suffer by such unskilful Scriblers His next man is a very great one indeed not only an Archbishop but a Martyr for

themselves when he found it conducing to the Weal-Publick Now I do not see one Word in this but what is the undoubted Right of the Supream executive Power For it is impossible any Nation should be well and happily governed where this Power is not And that for this Reason which the Arch-Bishop gives Because Human Laws are imperfect and therefore there must be a living Authority to supply their Defects and to temper their Severities and to pity and relieve Subjects when the case is truly pitiable But then there are some natural Limitations of the exercise of this Power in the most absolute and despotick Princes and there may be Political Limitations of it by the consent of Soveraign Princes themselves according to the Laws and Constitutions of several Kingdoms For tho the Imperial Crown can be divested of no part of Soveraign Power yet the exercise of it may be directed and limited by publick Laws as we heard before from Bishop Sanderson This last the Arch-Bishop takes no notice of it not being his design as you heard before to adjust the Rights of Princes by Political Laws but only to consider in general what are the essential Rights of Soveraign Power without examining how the exercise of it is diversly limited in different Countries And therefore let us only consider what those natural Bounds and Limits are which he has set to this dispensing and suspending Power And they are included in the reason of this Power because all Human Laws are imperfect and therefore there wants a Soveraign Power which is so far Superior to all Laws that it can correct their Faults and supply their Defects and temper them to such particular Emergencies and Cases as could not be foreseen when the Laws were made For if human Laws could be so exactly framed as to fit all possible cases if the Law were for the good of the Common-wealth the dispensing with or suspending the execution of such Laws would be a publick mischief And a Power which could serve no good end could be no Prerogative of Soveraignty And therefore the very Dispensation must be for the publick good or else it is the abuse not the natural Right of Soveraign Power To which purpose he mentions the Opinion of John of Sarisbury P. 79. I do not take away the dispensing with the Law out of the Hands of the Powers but such Precepts or Prohibitions as have a perpetual Right are not as I think to be subjected to their Will and Pleasure In those things only that are mutable the Dispensation with the Letter of the Law is to be admitted yet so as by the compensation of Honesty or Vtility the Intention of the Law may be intirely preserved So that according to this Rule the natural Instances of this dispensing Power seem to be these When a Law is made and is for the Publick Good but happens to fall very severely upon some particular Persons without their own fault only because such particular Cases were not and could not be considered in making the Law here the Equity of the Prince ought to releive such Sufferers according to his long Quotation out of AEneas Sylvius P. 91. which this Author has transcribed at large and we readily own When the Penalty annexed to the Law may in some particular cases be remitted without the publick Injury and may be thought very just and convenient with respect to the pittiable Circumstances or former Merits of the Person offending as the Archbishop observes and this Author from him P. 79. While the Laws do stand in force it is fit that sometimes the King's Clemency should be mingled with the Severity of them especially when by that means the Subjects may be freed from much detriment and damage Which belongs to the Regal not to the Ministerial Power the condition of the Magistrates whose Sentence is held corrupt if it be milder than the Laws being one thing the Power of Princes whom it becometh to qualify the sharpness of them a far different matter If any thing happens after the making of a Law which was not foreseen when it was made and which is besides or contrary to the original intention of the Law-makers and renders the execution of that Law manifestly and notoriously oppressive to the Publick the Prince may certainly suspend the Execution of such Laws till they be alter'd or repealed by the Power which made them or in the same regular Exercise of the Legislative Power as they were first made This dispensing and pardoning suspending Power is so necessary to the Publick Good that for my part I would not willingly live under any Government which wanted the Exercise of this Power And if this be all this Writer intended to prove by his long Quotations out of the Archbishop I am perfectly of his mind that the Archbishop was of his Opinion and so I believe is every Man who considers any thing For the Exercise of such a Power as this is no Injury to the Laws nor to the Legislative Authority For in this way the Prime and original Intention of the Law is always secure and can never be dispensed with the general Force and Vigor of the Law is maintained though it be remitted in some particular cases all Mens Rights and Properties are secure which are secured by the Law for the Laws can be dispensed with not for the hurt and damage but only for the Benefit of the Subject and therefore no legal Rights can be taken away by a Dispensation and more than that some Men may find Refuge and Sanctuary in the Clemency and Soveraign Power of the Prince from the Severities of the Law as far as is consistent with the Publick Good and Safety But any other dispensing Power than this the Archbishop says nothing of And this I think is answer enough to what he alledges out of Archbishop Vsher After these 3 Archbishops the next who follows is the humble patient and learned Dr. Robert Sanderson late Lord Bishop of Lincoln and were he living this Writer would exercise all the Humility and Patience he had without offering him any occasion to shew his Learning At the end of his 9 th Lecture concerning the final Cause of humane Laws Sect. 16. he comes to explain that Aphorism Salus Populi Suprema Lex The Safety of the People is the Supream Law which was expounded in those days to set up the Interest and Safety as they pretended of the People in opposition to the King which he does with so great Learning and Judgment as not only to confute but to shame all such Protences From the 18 th Sect. this Writer among others which are nothing to his purpose transcribes these Words which I suppose he thought were Non ita se voluisse Legum vinculis astringi A King that gives Laws and Statutes to his People will not or did not intend to be bound up by the Laws that it should not be lawful to him the Safety of the Common-Wealth

being in apparent danger to provide for the Safety of the Kingdom and People committed to him by God even against the Words of the Law It is lawful for the Prince in the Preservation of his own and his Subjects Safety to lay aside for a while all strict observance of the Laws and to make use a little of an arbitrary Right lest by too unseasonable and superstitious Reverence of the Laws he may suffer both his own Person and his People that are subject to him and even the Laws themselves to fall into the Power of his Enemies Ergo the Power of dispensing with Penal Laws is an inherent and inseparable Right of the Crown Quod erat demonstrandum An excellent Logician to make an accidental Case the measure and Standard of a constant and unalterable Right To prove that to be a Right when there is no necessity which nothing but Necessity can justify nay to make Necessity which has no Law the Rule and Pattern of Legal Administrations to prove a dispensing Power in ordinary cases from a Right or Necessity to act without or against Law in extraordinary cases For the Bishop does not here say that in such absolute Necessity the King may dispense with Penal Laws but that he may act against the Words of the Law that he may lay aside for a while while that Necessity lasts all strict observance of the Laws and make use of an arbitrary Right So that if he can draw any Inference from this to ordinary cases where there is no such absolute danger it must be to prove a lawless and arbitrary Power which is a great deal more than a Power of dispensing with Penal Laws In the very next Section ●e says almost as much of the People That it is lawful for Subjects in defence of their Prince and of themselves when there is such a pressing necessity that a pious and prudent Man could not doubt but if the Lawgiver himself were present he would grant a relaxation of the Law to have greater regard to the common Good which is the supream Law and the end of all Laws than to any particular Laws which were made not to prejudice but to serve the common Good Now should any man hence draw a general Maxim that all Men must have greater regard to the publick Good than to the observance of the Laws of their Country it would be as bad Logick as it is Divinity and Law The last Bishop he calls in to bear his Testimony is the present Right Reverend Bishop of Chester but tho I have ventured to defend our dead Bishops who cannot speak for themselves but in their Writings I dare not make so bold with the living That great Man understands his own Sense best and if he be misrepresented wants neither Learning nor Interest to right himself And thus we proceed to the Reverend Doctors of our Church who I believe will be found to speak the same things with the most Reverend and Right Reverend Bishops The first is Dr. Heylin whose words are said to be these He viz. the King hath Authority by his Prerogative Royal to dispense with the rigor of the Laws and sometimes to pass by a Statute with a Non-obstante But where he says these words he does not tell us and therefore I know not where to find them and therefore know not upon what occasion they were said nor to what they are applied But as you have already heard no Man doubts but in some cases the King may dispense with the rigor of the Laws and before the Judges had declared their Opinions in the Point I know some good Lawyers who did not think that some few Instances of a Non-Obstante was a sufficient proof of a general dispensing Power and why might not Divines be of that mind too And then the Doctor 's saying that the King might sometimes pass by a Statute with a Non-obstante does not prove that he was for the dispensing Power in the modern Latitude of it for though it was as good Law before as it is now yet it might not be so well understood The next in order is the Learned and Judicious Dr. Isaac Barrow too learned and too judicious to be commended by so injudicious a Writer as will appear from what he transcribes out of his Treatise concerning the Pope's Supremacy I was mightily surprized to think what should come into the Doctor 's Head to state so nice a Point of Law as the dispensing Power in a Treatise of the Pope's Supremacy which seem'd as foreign to the business as could well be imagined and I was as much afraid that I should not have the Satisfaction of seeing what it was for he was resolved if Men would be so curious to examine they should take pains for it for he directs to no place where to find what he cites but sends his Readers to seek for three short Sentences in a Book of 428 Pages but by good luck I have found them and am very much edified by them The first is this Treatise of the Supremacy P. 311. Quarto It is indeed a proper endowment of an absolute Soveraignty immediately and immutably constituted by God with no Terms or Rules limiting it that it's Will declared in way of Precept Proclamations concerning the Sanction of Laws the abrogation of them the dispensation with them should be observed Where the Doctor was shewing how the Popes of Rome arrogate to themselves the most absolute and unlimited Soveraignty in the Church as it follows This Priviledg therefore in a high strain the Pope challengeth to himself asserting to his Decrees and Sentences the force and obligation of Laws c. The Mystery of this Quotation is this that he would have his unwary Readers to believe that this endowment or priviledg or Prerogative of Soveraign Power that it's Will declared in way of Precept Proclamations concerning the Sanction of Laws the abrogation of them the dispensation with them should be observed is immediately and immutably constituted by God with no terms or rules to limit it and thus indeed it is home to his purpose but shoots vastly beyond the Mark For this does not only prove that the King may dispense with Laws by his Proclamation but that he may make and abrogate Laws too by his Proclamation But the Doctor 's plain Sense is this That such an absolute Soveraignty as is immediately and immutably constituted by God with no terms or rules to limit the exercise of it and such a Soveraignty the Popes have challenged has this Endowment or Prerogative that its Will declared in way of Precept Proclamations concerning the Sanction of Laws the abrogation of them the dispensation with them should be observed And who ever denied this But I find no one asserting That the Kings of England were such absolute and unlimited Soveraigns by God's immediate and immutable Constitution That their Proclamations were as good Law as any Acts of Parliament That they could make and