Crown Coke lib. 7. fol. 36. Reported as the Resolution of all the Judges of England XI The King cannot by his Grant nor yet by Act of Parliament Bar himself of any thing which is inherent in and inseperably annexed unto his Royal Person for that in so doing he should cease to be King and consequently Change and Subvert the Government which our Law allows not Note this is proved in substance by 2 H. 7. fol. 6. Cited and Agreed in Calvin's Case Coke lib. 7. fol. 14. The Case was thus In the Statute 23. H. 6. Cap. 8. it was Enacted under great penalty That none should serve the King as Sheriff of any one County above one Year And that if the King by any Non obstante should dispense with that Statute such dispensation should be void Yet it was Adjudged That notwithstanding that express Clause and even against it the King might dispense And the reason given was Because the King had a Right by the Law of Nature as King to the Service of his Subjects And such Right being inseperably annexed to and inherent in his Royal Person that Act could not Bar the King of the Service of his Subjects Every Subject being bound by his Natural Legeance to serve the King. XII That therefore when ever the King to gratifie a Parliament doth Consent in Parliament to any Law by which he seems to strip himself of or depart from any Prerogative or Right which in truth is insperable from him as King Or when the King in Parliament or otherwise by any Declaratory Words or Speeches seems to relinquish such Right such Consent to such Law is no more than an Agreement on his part not to use that Right ordinarily but only in Extraordinary Occasions when in his Princely Wisdom he shall find it necessary and for Publick Good. But this Bars him not to use this Right again when he sees just cause so to do nor can any declaratory words spoken by the King or his Assent incerted into an Act of Parliament Estoppe the King in any Case of this Nature This Ground being established all the difficulties touching Parliaments endeavouring to entrench upon the Crown and the frequent Charges of Breach of Promises imputed to our Kings are solved and fall to nothing nor will there be any more use of that Engine made use of so unhappily by the late Usurpers of wounding the King through the pretence of removing Evil Counsellors when ever the King shall think fit to reassume his Right in Extraordinary emergent Occasions after having agreed by Act of Parliament or by any other publick way not to make use of that Right ordinarily It being clear upon this Ground That a Parliament offering a Bill to the King which seems to take from him such a Right hath not in Truth any Design in it to prejudice the Crown For then a Parliament should do wrong which the Law allows not to say nor is such a reassuming the Exercise of such a Right a Breach of Promise in the King but a making use of the Condition implyed in his Agreement as to such a particular Case and in such present Circumstances Otherwise the King should be said to do wrong which our Law also forbids us to say And all those Judgements and Resolutions of our Judges which confirm it to us That the King hath such Rights and which have allowed the Exercise of such Rights notwithstanding Acts of Parliament would be infringed and become Erronious and consequently the whole Frame of our Laws unsettled These Rules before layd or some other of the like nature which those who are learned in our Laws agree upon among themselves have been of so great force that in all Ages those who have been otherwise the greatest Opposers of the Prerogatives of the Crown have nevertheless always Agreed That the King hath a Power inherent in him and inseperable from his Royal Person to dispense with Penal Laws as to particular Persons But several do deny That His Majesty hath any Power in himself alone to dispense in general with a Penal Law or to suspend in general the Execution of such a Law Though others do very strongly Affirm His Majesty to have this Power and do conceive that upon the Grounds before laid all Objections which are commonly urged against this Power are clearly Answer'd and prevented Those who maintain the Affirmative in this Point do at all times declare That their Affirmative is not intended of a General Power in the King to suspend all Penal Laws in general at his pleasure to the prejudice of the Publick and without just Cause Such a Power being against the Grounds before laid and never claimed by any King of England But that which they affirm is of a Right bounded within the true just and agreed Definition of a Dispensation mention'd as the fourth Ground before asserted And therefore when they discourse the point they state and divide the Difficulty into these following Quuestions viz. Quest I. Whether the Legislative Power may not possibly make such a Law as in respect of Time and other Circumstances impossible to be foreseen may prove inconvenient to the whole Kingdom or a great part of it And if the Affirmative in this Question be True which they hold Then Quest II. Whether in case of such a Law made is there not some Power and is it not absolutely necessary there should be some Power always Visible and in Being to dispence with and to suspend the General Execution of such a Law Necessity and Publick or General Good requiring it In this they also hold the Affirmative which if it be True Then Quest III. Whether this Power be in the King or any where else And where else Or whether it be in the King with some other And with whom And in this they hold That it is in the King solely For Proof of their Affirmative to the first Question they say I. It is proved by the Seventh Ground before layd II. By what is observed upon the Fifth Ground even Magna Charta rigorously insisted on according to the Letter of it would be inconvenient and against Publick Good. III. There are many Ancient Penal Laws which though never Repealed yet are not put in Execution Because though Necessary when they were first made yet now Obsolete in respect of Time and other Circumstances not foreseen and impossible to be foreseen when the said Laws were made IV. It is ordinary for the Legislative Power in all Ages to make several Penal Laws meerly temporary and experimentally to the end that Experience may shew whether they may conveniently be continued or not V. The late Acts of Parliaments made for Encouragement of Navigation and touching Cart-wheels being Penal Laws made by this present Parliament does clearly prove this point The first had Inconveniencies not foreseen and only appearing when we made War The other had such Inconveniencies not foreseen by the Law-makers that had it been put in Execution all
our Inland Trade had been destroyed For Proof of their Affirmative to the Second Question they say I. It is proved by the Fifth Sixth and Eighth Grounds before layd II. To deny this would be to Charge our Laws with the highest defect imaginable for to grant as they do That the Law hath provided a Fountain of Mercy always visible and in being to take care of private and particular Persons and to dispense with Penal Laws as to such when Necessity requires and to deny that the Law hath provided any Fountain of Mercy always visible and in Being to take Care of the Publick and to provide for the Safety of the People when Necessity requires would be to charge our Law with a greater defect than ever any yet charged it with III. That if no such Power had been all Navigation as to Trade must have totally or at least for a great part have ceased during this present War for want of Mariners and all our Inland-Trade must have ceased from the time of the making of the Act touching Cart-Wheels for want of Carriages and De Witts designs for ought we know might have been effectual to have engaged us in a New War at home and to have Provoked our Non-Conformists into a Rebellion in which they would most certainly have been assisted with all necessaries from Holland for the rescuing themselves from the Inconveniencies which they pretend they lye under from the Penal Laws made against them if there had not been a Visible Power in Being to avoid the Danger then threatning us and not foreseen by the Law-makers by suspending the Execution of those Laws For Proof of their Affirmative to the Third Question and what they hold therein they say I. It is proved by the Ninth Tenth and Eleventh Grounds before layd II. There is no other Power always visible and in being which doth or can pretend with any colour of Reason to have this Right besides the King alone III. To place this Power in any other without the King would be to make that other King. And to place it any where then in the King alone so as to make some others to be sharers in this Power were to make those others to be sharers in the Highest Act of Soveraignty and consequently sharers in the Crown which would be wholly to change our Government and to alter our Laws and consequently to subvert all our Liberties and Properties which cannot be safe if any Principles be admitted in alteration of our Laws and Government And it is for this Reason that the King cannot commit the power of his Mercy concerning any Penal Statute to his Subjects Coke lib. 7. fol. 37. IV. Our Kings have always used this Power and our Judges approved the Exercise thereof to be agreeable with our Laws as is proved in the Grounds before layd And though it be true that some Ancient Laws seem suspended by a dis-usance and a seeming tacite Consent of the whole Kingdom King Judges and People yet that was in truth the suspension of the King alone For those Laws were when once made the King's Laws and the King was the only Person trusted with them he might have put them in Execution and commanded his Judges to see them put in Execution if he had pleased and his Judges would not have taken upon them to say That they the Judges or That the People had thought fit to suspend them by common consent and therefore they stood Suspended In short those who do maintain these Affirmatives in all these Questions and insist upon the Grounds and Rules before layd do for farther clearing of the matters in debate humbly offer the following Cases to Consideration as concieving the Solutions of them may settle the Point I. Suppose a Distress taken upon that Branch of the Statute of 14. Car. 2. cap. 6. which relates to the breadth of the Weels of Carts and Waggons and the Execution of which Branch was suspended by His Majesties Proclamation Would the Judges justifie this Distress or not If they did in pursuance of the Statute and dis-ailowance of the Power of Suspension the Consequences would be That they would hereby destroy the greatest part of In-Land-Trade of the Kingdom If they did not allow the Distress but agree the Act to be lawfully Suspended by the King's Proclamation issued forth in a Case where so great a Necessity required for the Publick Good Then all the three Affirmatives upon the aforesaid Questions are settled with this Addition That the King may dispense with a Malum Prohibitum though it be as it is in the Case put adjudged by Act of Parliament a Common Nusance And may dispense with a Penal Law though the Forfeitures as they are in the Case put be not given to the King but to others as in this Case to the Surveyors of the High-Ways the Poor and the Prosecutor But if the Judges in this Case as it is here put to avoid the difficulty should refuse to allow the distress upon some other Reason as rather taking upon themselves to adjudge the Act of Parliament as to this particular Branch to be void then to allow the King to have Power to Dispense with what an Act of Parliament adjudgeth to be a Common Nusance though the whole Kingdom believes that his Majesties said Proclamation was the sole Cause why there was never any Execution of that Law And that no man was ever prosecuted upon that Branch because all men generally admitted that the King had dispensed with it and had a power so to do And consequently That the Judges never had an Opportunity to Repeal it by their Judgment yet if the Judges should in this Case proceed this latter way or any other way rather then to Affirm the King 's Right for Reasons best known to themselves there would be then no more gained by this Case then A Law may be made by the Legislative Power which may be very inconvenient to the whole Kingdom And that in such Case there must necessarily be a Power somewhere either to suspend its Execution or to Repeal it totally by adjudging it to be Void And then the next Case proceeds thus II. Suppose a Law made under the penalty of 100 l. to the Prosecutor to his own Use That none shall serve His Majesty either in his Navies at Sea or in his Armies at Land or bear Arms in the Militia in any County except he first take the Oaths of Supremacy and Obedience And take the Sacrament of the Lord's Supper according to the Form used in the Church of England And Abjure Transubstantiation This Law being made Suppose France and Holland should Unite their Forces and make a present War upon His Majesty And the more to distract us and raise Divisions amongst us should publish their Placaet and promise a general Toleration to all in England in point of Religion and the Enjoyment of their Ancient Laws if the People of England will sit still and not take up
it how many Laws are Suspended at one time for Publick-Good which is the End of all our Laws Here is no other Right pretended to be maintained in the present Dispute But what is for Publick-Good and the Conservation of our Liberties and Properties Object IV. The Allowance of this Power to the King may be Dangerous in its Consequence For in Effect it makes him sole Judge in the Case And then be may use this Power by mistake to the prejudice of the Publick Answ If there be any Danger in making the King Judge in this Case And that this Danger be an Error it is not the fault of those who maintain this Right But of the Law which declares this Right to be in the King and of the whole Realm which entrusts the Power of Mercy in the King. The same Law and the same Realm entrusts the King with the Sword of Justice with the Militia and with the Power of Peace and War yet the Law was never blamed in these points nor ought the Kingdom to be charged with Folly or Imprudence for these Trusts Certain it is these Powers and these Trusts must of necessity be in some Person or Persons alwaies Visible and alwaies in Being If it be in One Single Person he is must be King If in more then we must change our Government and Laws And how safe that will be for our Liberties and Properties is not hard to judge The same Law that Entrusts these Powers in the King knowing him to be a Man Entrusts the Legislative Power in the Parliament which is composed of Men and the whole Realm Consents to these Trusts This is the Constitution of our Government And as our Law Affirms that this Trust as to the Legislative Power will not be abused and therefore says possitively That in the Exercise of the Legislative Power the Parliament can do no wrong The Law implying the Consent of the whole Realm to be included in what they do and consequently That none shall be said to be wronged in what they Consent to So the Law and the whole Realm consenting to Repose these Trusts in the King the Law affirms and the whole Realm believes That these Trusts will not be abused and therefore the Law says That in the Exercise of these Trusts the King can do no wrong The Law implying the Consent of the whole Realm to be included in the reposing of these Trusts in the King and consequently to be included in what the King does in the Exercise and Execution of these Trusts and consequently that none shall be said to be wrong'd in what they Consent unto And in Truth our Law says the King makes the Laws and is the sole Judge even in Parliament and the Lords and Commons only Assent And the King is solely intrusted with the Power of Judging and that he hath no Judge over him 22. Ed. 3. fol. 3. Object V. If this Right may be allowed the King may Licence a Common Nusance or Felony or High-Treason Answ The Question is only touching the Licensing of a thing which in its own nature is indifferent and if not prohibited by a Law might be honestly done and becomes an Offence only by being prohibited and because it is prohibited by a Law made for Common-Good And this being the true state of the Case the Objection is fully granted The King may License the doing of a thing Common-Good and Publick Advantage or Necessity requiring the Licensing of the same regard being had to particular circumstances of Time and other Reasons of State and concernments which by Law was made an Offence or Common-Nusance or Felony or High-Treason And this is so far from being a prejudice or mischief That it would be an Inconveniency not to have such a Power some where This is proved by the Fifth and Sixth Grounds before layd And for farther proof there is one instance amongst many in the Books 11. H. 7. fol. 11. Bro. tit licences 24. Where it is Resolved That whereas the Coyning of Money was an indifferent thing in it self And might have been practised by every man that pleased untill it was made an Offence by Law which makes it High-Treason The King may Dispense with that Law and licence the Coyning of Money This is an Instance of the highest nature viz. of a Malum Prohibitum made Treason And therefore other Instances are needless Object 6. If this Right be allowed where the Penalty for doing a Malum Prohibitum is given to the Poor or the Prosecutor and not to the King the King shall have power to Deprive the Subject of what the Law gives him which will be a Wrong and the King can do no Wrong Answ This Objection as the former is grounded upon a mistake of the Question which is only of Dispensing Pro Bono Publico in Cases of Common-Good and Publick Advantage or Necessity so that what at the time of making the Law which made it an Offence was fit for the Common-Good to be prohibited and made an Offence comes at the Time and in the Circumstances wherein it is Dispensed with to be a Common-Good and consequently necessary to be licensed So that admitting it were a mischief to the Prosecutor or to the Poor of some Parish to be barred of the Penalty given by the Law yet to the Publick it would be an Inconveniency not to have that Licensed which Common-Good requires to have Licensed And the known Rule of Law requires That a private Mischief should rather be suffer'd then a Common Inconvenience Consequently by this Right exercised the King does no Wrong For to prefer Publick-Benefit before the private Gain of Informers who are the Pest of the Kingdom or before the Poor of a Parish who must otherwise be kept by the Parish is no Wrong Besides the Objectors grant That the King notwithstanding this Objection may licence particular persons And they must grant That before an Action commenced the King after an Offence committed may deprive an Informer of what the Law gives by a particular Pardon Both these Rules are lay'd in the Books of 2. R. 3. fol. 11.12 1. H. 7. fol. 3. 37. H. 6. fol. 4. 5. And if it be no wrong to Pardon the Offence committed altho' there be no Pretence of Common-Good upon which the Pardon is grounded it is certainly no wrong to Dispence for Common-Good Object VII That there are no express Judgments found in our Law-Books to warrant this Right in the King And it is to be presumed That it being a Right often Claimed by our Kings and Denyed by the Subjects The Judges who by their Offices are the King's Council Learned would not have left so material a Point unsettled Answ I. Supposing this Objection were true That there were no Express Judgments found in this Case yet the Consequence doth no more follow That therefore the King hath no such Right then the contrary consequence would follow Therefore the King hath such Right For
the King 's Right as to General Dispensations But if it be otherwise understood only as to Dispense with single persons it is at least a clear and solemn Admittance of that Right And as to the King 's Right of Dispensing Generally it is proved before to be Admitted by the whole Kingdom in the Cases of his now Majesties Dispensations in Relation to the Importation of French Wines and the Statutes relating to Navigation and the breadth of Cart-Wheels to which may be added the known Case of the King 's General Dispensation with several Penal Laws made in Relation to a Matter Ecclesiastical It is in the poynt of keeping of Lent and Fasting Enjoyned by the King 's Ecclesiastical Laws the Cannons of our Church and farther Enforced under several Penalties by the Statutes of 2. 3. Ed. 6. c. 19. 5. 6. Ed. 6. c. 3. 5. Eliz. c. 5. In the first there is a Saving to such as shall be Licensed by the King which if it be intended of Licenses to particular Persons will not concern the present poynt in the second there is no saving In the third there is a particular saving limited and restrained to particular Cases and Conditions as to Licenses All these Laws are Generally Dispensed with by the King 's General Dispensation by his Proclamation and this is admitted to be Legal by the Admittance of our present Parliament and of all our Ecclesiasticks Judges Lawyers and the whole Kingdom in General by an Universal Admittance not question'd or complained of by any Thirdly As to the close of the Objection which pretends That the Allowance of this Right to the King will in a great measure render Parliaments Useless The Answer is First our Law-Books speak not of Licenses or Dispensations general or particular by Parliament but by the King the King 's Right is to Dispense the Parliament to Repeal Secondly It is for the Ease of the Kingdom that the Constitution of the Government is thus For the necessity of Dispensations in several Cases where our Penal Laws are so numerous requires that the Power of Dispensing with Penal Laws should be in some Person or Persons always visible and in being which cannot be a Parliament without a vast Expence and Inconveniency to the Kingdom who are by the Constitution of our Government to bear the Charges and allow Wages to the Members Chosen and sent by them to Sit in Parliament And therefore it is That our Law puts the Power of Dispensations which are but Temporary in the King That the Total Repealing if necessary may attend the calling and meeting of a Parliament when other weighty Affairs shall require a Parliament to be called It would be intollerable to trouble the Kingdom with the calling of Parliaments so often as there is occasion for Publick Good to Suspend the Execution of a Penal Law in the mean time the Publick cannot suffer in regard the Law hath well provided for it by putting this Power in the King. So that Parliaments continue still to be useful notstithstanding this Power be in the King. And this Power being in the King by the Constitution of our Government which hath placed the power of Repealing Laws in the Parliament as it would render Parliaments useless to put the Legislative Power in the King solely which is of the Essence of a Parliament So to put those Powers into a Parliament which are of the Essence of King would render our King useless Our Government hath long continued and subsisted happily by the several and distinct Exercises apart by our Kings and Parliaments of their several and distinct proper and essential Rights peculiar to each other And when either shall usurp upon the other our whole Government and Laws must be destroyed and let the Objectors Judge whether that would endanger our Liberties and Properties Object XIII If this Right and the Powers of the Militia and of Peace and War and of making Leagues were to be Exercised only by his now Majesty the Kingdom would not think it self unsafe by entrusting him But to have this Power and those others inherent in the Crown which may descend to One who may be a Tyrant or of a Religion contrary to what we now Profess may be destructive to our Religion and Laws And therefore if our Laws do vest these Powers in the Crown as is insisted these Laws are thus far defective and ought to be altered These Powers not being fit to be Exercised but by Parliament only and to be vested in the Parliament Answ I. This Objection upon pretence of Securing our Religion labours to make it odious by proposing to make us violate all those Oaths which oblige us to be True and Faithful to the King his Lawful Heirs and Successors without any Reservations or Conditions in relation to the good Government or Religion of such Lawful Heirs So that in Effect it proposes to us to break Faith with the Heirs of the Crown when ever we shall judge them to be Tyrants or Hereticks and to become Rebels in order to the Defence or Security of the True Religion which Principles our Religion professeth to abhor Secondly This Objection also tends to put us into a perpetual state of War and Blood into a desperate hazarding of our Estates Lives Laws Liberties Country and Religion upon a Pretence of endeavouring to secure our Religion and Laws That these must be the Consequences is unavoidable For if it should be supposed that his now Majesty to gratifie the present Objectors and to prevent the objected Dangers which are pretended may in possibility happen from these Powers resting in the Crown should agree to depart as much as in him lyeth with so much of his Crown as is here desired and after that even with his whole Crown And that thereupon the whole frame of our Government should be Altered as far as the wit of man can contrive to Alter the same yet there can be no Security but that his Majesty may repent and endeavour by Force or otherwise to retrieve all that is thus departed with If he attempt this by Force there must be necessarily a War which proves the Truth of what is here Answered If he can do it without War he will not want a President to Warrant his Repealing all such Alterations by his Letters-Patent The Case is cited by Rolle Tit. Prerogative le Roy. fol. 165. where he says That in the Statutes at large 15. Edw. 3. The King revokes by his Letters Patent with the Assent of his Earls Barons and other wise Men of his Realm certain Statutes made before in the same Year Because they were contrary to the Customs of the Realm and his Prerogative Royal and Assented to by him by Dissimulation in Case of necessity And saith Rolle those Statutes have been reputed as Repealed ever since The Letters Patent by which these Statutes were thus Repealed are Printed in the Statutes at Large in Anno 15. Edw. 3. a Copy of which is at the end of this Answer to this Objection Wherefore the Dangers from his now Majsties repenting will prompt the Objectors to farther and worse Fears not to be removed untill his Majestie and all who may be feared within the Kingdom be put into such a condition as to cease to be Objects of Fear And yet when this is done The Dangers are not past For Rex nunquam moritur nec mori potest The King of England in his Politick Capacity is as Immortal as the World. We shall but make our Selves a Prey to that Neighbouring Prince who is Strongest and the Strongest Prince will certainly make himself an Undoubted Title to the Crown of England let his Religion or Temper be what it will. For if England could not subsist a Republick when it had Holland to Assist it It cannot be but That the Crown of England will have an Heir now Holland is disabled from Abetting any Change of Government The Copy of the Letters Patent EDWARD by the Grace of God c. To the Sheriff of Lincoln Greeting WHereas att our Parliament summoned att Westminster in the xv of Eastter last past certain Articles expressly contrary to the Laws and Customes of our Realme of England and to our Prerogatives and Rights Royal were pretended to be Granted by us by the manner of a Statute we considering how that by the bond of our Oath wee be tied to the observance and defence of such Laws Customes Rights and Prerogatives and providently willing to revoake such things to their own State which be soe improvidently done upon conference and treatise thereupon had with the Earles Barons and other wise men of our said Realme and because we never consented to the makeing of the said Statute but as then it behoved us we dissimuled in the premisses by protestations of revocation of the said Statute if indeed it should proceed to eschew the dangers which by the denyeing of the same we feared to come forasmuch as the said Parliameet otherwise had been without dispatching any thing in discord dissolved and soe our earnest business had likely been ruinated which God prohibit And the said pretended Statute we promised then to be sealed It seemed to the said Earls Barons and other wise men that sithence the Statute did not of our free will proceed the same be void and ought not to have the name nor strength of a Statute And therefore by their counsel and assent wee have decreed the said Statute to be void and the same in as much as it proceeded of deed we have agreed to be adnulled willing nevertheless that the Articles contained in the said pretended Statute which by other of our Statutes or of our Pregenitors Kings of England have been approved shall according to the form of the said Statute in every point as convenient is be observed And the same we do only to the conservation and reintegration of the rights of our Crown as we be bound and not that we should in any wise grieve or oppress our Subjects whom we desire to rule by lenity and gentleness And therefore we do command thee that all these things thou cause to be openly proclaimed in such places within thy Bailiwick where thou shalt see expedient Witness my self at Westminster the first day of October the fifteenth year of our Reign FINIS
CONSIDERATION TOUCHING The Great Question OF THE KING' 's RIGHT IN DISPENSING WITH The Penal Laws WRITTEN On the Occasion of His Late Blessed Majesties granting Free Toleration and Indulgence BY RICHARD LANGHORN Late of the Middle Temple Esq LONDON Printed for Richard Langhorn Anno Dom. M.D.C. Lxxxvii TO THE KING SIR THE Piety of a Son to the Memory of so Good a Father may I hope in some measure excuse my Presumption in laying this Part of his Remains at Your Sacred Feet And what will farther plead for me is my seconding his Intentions in Offering that to Your Majesty which he as he often told me design'd more immediately for Your Royal Consideration I am Sensible this Subject may be thought to be here handled with too much Modesty But I am also Sensible that the Iniquity of those Times would not bear with bolder Truth and Reason Yet I may with Confidence aver if he be duely weigh'd he will be found to have Asserted the Prerogative with the Strength of the Law and the Duty of a Loyal Subject SIR When This was preparing a Malevolent Faction would have made the very Laws Rebellious and to spurn against their Maker Yet since Divine Providence has plac'd Your Majesty as Glorious at the Head of Your Laws as at the Head of your Armies I have only to Pray for the Continuance of Your Happy Life and Reign as being SIR Your Majesties Loyal Subject and most Dutiful Servant R. LANGHORN CONSIDERATIONS TOUCHING The Great Question OF THE KING' 's RIGHT In Dispensing with The Penal Laws THose who assert the Affirmative in this Question do premise these following Rules or grounds which they take to be so clear either from right Reason common Experience or the Traditional Common-Laws which are handed to us by such Resolutions of the Ancient Sages of our Laws as are found in our Law-Books That if they be refused by any the Title of Principles yet they are easily proveable to Lawyers to be of the like nature with Principles in that Science which most properly judge of this Question I. That there is a difference between Malum in Se which is in its own nature an Offence and Malum Prohibitum which being in its own nature Indifferent comes only to be an Offence because some Law makes it so 11. H. 7. fol. 11.13 H. 7. f. 8. II. That no Power upon Earth can give License for the doing or dispensing with the doing of what is Malum in Se Malum Prohibitum may be Licensed Cooke Lib. 12. fol. 30. Note Suspension Dispensation and License do in this Question signifie the same thing III. That the King cannot Repeal or totally make void a Law by his own Single Power without a Parliament IV. That Dispensation whether it relate to the Generality or to particular Persons only is no other thing than barely a Relaxation Toleration or Licensing of a Malum Prohibitum for a time with respect to Advantage or Necessity This is the definition given Cooke lib. 11. fol. 88. in the case of Monopolies V. That the End of every Law and of all Laws Civil and Temporal is Bonum Publicum and Salus Populi And therefore when any Law made is found at any time to contradict that End every such Law must at that time be voyd in its self or there must be a Power somewhere to suspend or dispense with such a Law for so long time as it appears to contradict that End for which such a Law was made for res nolunt male Agi And the Common-Good and Safety of the People must and will be preferred Note that this is so sure a Principle That even Magna Charta it self the greatest Darling of all our Laws hath always given way to it And therefore though our Kings have restrained themselves by that Law generally from putting any Impositions upon Merchandises to be Imported or Exported Yet our Judges have resolved That for the Common-Good the King may Controul and Suspend this Law as in Case of an Imposition put in foraign Parts upon our Merchandises to the prejudice of our Trade the King to enforce an abatement there and to make an Equality for the Advancement of our Trade may put Impositions upon their Merchandises here So also Though by Magna Charta it be generally free for every Person with any Comodity not expresly prohibited by some particular Law to go out of England in Order to Trade yet the King may in the time of War restrain all Merchants from going out of England or in the time of Dearth from Exporting such Comodities otherwise not prohibited of which there is a Dearth in England Coke lib. 12. fol. 33.34 VI. That Necessitas est Lex temporis Necessity is it self a Law whenever it happens and for the time that it continues it is Absolute and above all Laws This Law commands that Authority which hath the Right of Dispensing with Laws to exercise that Right And if That Authority will not do it This Law called Necessity will it self exercise that Right Coke lib. 12. fol. 34. Note when Necessity requires not only the King but every Subject may come upon my Land and make Trenches and Bulworks there for defence against an Enemy or pull down the whole Suburbs or any part of a City for the same end or pull down or blow up any House or Houses in a Town to secure the rest from Fire Notwithstanding all the Laws made for the preserving of Property Coke lib. 12. fol. 13. VII That it is impossible for any Law-makers who are mere Men and no more who have no Pretence to a perpetual Divine Assistance in the making of Laws to fore-see all particular Mischiefs and Inconveniencies which may happen in particular Circumstances by or from the making of any Particular Law. Coke lib. 11. fol. 88. VIII That for the Reasons before-mention'd of the Impossibility in Law-makers of fore-seeing all Accidents and Emergencies and for complying with Necessity and providing for Publick-Good in all Occasions and the taking Care of the Safety of the People there must be some Power always in being to Suspend or Dispense with such Law or Laws as Publick-Good the Safety of the People or emergent Necessity require at any particular Time or in any particular Circumstances to be Suspended or Dispensed with IX That the Power of Dispensing with Malum Prohibitum is of Right and by our Law in our Lord the King. Coke lib. 11. fol. 88. For when a Penal Statute is made for the Publick-Good the King as the Head of the Publick-Good and the Fountain of Justice and Mercy is by the whole Realm intrusted and particularly as to the Power of Dispensing with it Coke lib. 7. fol. 36. X. That this Trust and this Power of Dispensing with Penal Laws are inseparably united unto the Royal Person of the King That he cannot transfer give away or separate the same from himself consequently it is inherent in his Royal Person that is in his
Arms many in England who are willing to Assist the King in this Exigency dare not bear Arms because they cannot comply with what the aforesaid Law requires Many who can comply with this Law refuse to comply and consequently pretend they cannot comply and therefore that they dare not bear Arms. But their true Reason is That they know they can have no Toleration in the business of Religion secured unto them by the King And they hope the Enemy if they overcome will for their own Interest at least make good their Promise The rest of the Nation are not able to Defend the Kingdom Now it is demanded of the Judges May the King in this Exigency Dispense with this Law and suspend all the Penal Laws in cases of Religion And hath the King a Right to do this If he cannot Then clearly the Crown and Kingdom must be Lost because our Law is in so great a Point defective If the King hath Right to do this tho' no part of the Penalty be by this Law to the King but all to the Informer Then put the same Case yet farther And suppose the Malum Prohibitum in this Law were by this Law adjudged and declared to be a common Nusance Nay suppose it were adjudged to be Felony or High Treason Hath the King in such Case a Right to Dispense and is not the King the sole Judge in this Case of the Necessity and of the Publick Good Or is the King to Call a Parliament of necessity to judge in the Point and so hazard the Ruin of the whole in expecting the meeting of a Parliament Or must he Consult the Judges and be bound by their Opinions in so great an Affair of State Necessity and the Publick-Safety It is conceived the Resolution of this Case will put an end to the whole Doubt Against these Affirmatives several Objections are usually made which are Answer'd thus Object I. That the King by his Coronation Oath and by several Promises hath pleased to bind himself to maintain all the Laws And since all men agree That Almighty God can bind himself by his Promises it is unreasonable to say the King cannot bind himself Answ I. This Objection if it proves any thing proves too much for it is as strong to take away the King's Power of Pardoning or of Dispensing with a Penal Law as to a particular person as to take away his Power of Dispensing in general But the Objectors Grant That the King hath the former Power inherent in him notwithstanding these Promises and Oath and that no Construction shall be made of them to bar him from Pardoning or from Dispensing with particular Persons therefore no Construction shall be made of them to Bar him from Dispensing generally Secondly There is no Construction to be made of any Promise of God to bind his Divine Majesty to cease to be Good and Merciful Because those Attributes are of his Essence and such a Promise would amount to a Promise to cease to be God which God cannot cease to be and therefore cannot be intended to bind himself to cease to be So neither shall any Construction be made of any Oath or Promise of the King to bind the King to cease to have the Power of Mercy because it is of the Essence of the King And it would amount to a binding himself to cease to be King which he cannot bind himself to cease to be Thirdly This Right of Dispensation is a Law in its self and so necessary and fundamental a Law in order to the Publick Good That without it and without the Exercise of it when the Common Good requires it to be Exercised The Kingdom cannot be and the King's Prerogative is Law. Therefore the King's Oath and Promises to maintain the Laws bind him to maintain and exercise this Right And to put such a Construction upon the said Oath and Promises as should bind the King not to use this Right were to bind the King to Break and to Violate the Laws and to neglect the Safety of the Kingdom Nay for the King not to exercise this Right would be to Violate his Oath and Promises and to break the Trust reposed in him by the whole Realm when they make a Law and entrust him with it as the Fountain of Mercy and Head of the Publick Good And to frustrate the Chief End of all our Laws Fourthly The Objection is therefore grounded upon a mistake of the Question For no man will or dares say That the King is bound to enforce the Execution of a Penal Law to the prejudice of the whole Kingdom or of a very notable considerable part of it Object II. That all the Judges and all who are in the Commission of the Peace are Sworn to put the Laws in Execution But if the King shall be said to have this Power he shall have it in his Power to make all these Perjur'd Answ I. This Objection as the former makes as much against the King's Power of Dispensing as to particular persons as against the Power now affirmed and so it fights against the Objectors allowed Opinion and proves nothing Secondly The Right and Prerogative in dispute is a Law so they are bound by their Oaths to submit to it and maintain it Thirdly A Dispensation in our Case is in the nature of a Temporary Repeal of a Law for it is a laying it to Sleep for a time in a Legal way consequently there is no more Obligation from the Oath objected to put a Law in Execution during the Time that the Execution thereof is by a Dispensation Legally Suspended then there is to put a Law in Execution after it is Repealed And to do either would be against the Oath objected because it would be to Act against Law. And if this be denyed it were worthy Enquiry Why the Judges who are bound by Oath as is objected and who sometimes affirm themselves obliged by Oath to give the Laws in Charge in their Circuits do nevertheless forbear to give in Charge or put in Execution several Obsolete and Antiquated Laws which have never been actually Repealed by the Legislative Power but only Suspended by the Act or by Allowance of our Kings who might have enforced the Execution of them if they had pleased and by the Consent and tacite Agreement of our Judges and whole Kingdom taken to be suspended Object III. If this Power be allowed to be in the King he may by Virtue of it Suspend all our Laws and even Magna Charta it self and then farewell all our Liberties and Properties Answ If this Objection be not grounded upon a Mistake of the Question it signifies nothing the Right asserted is a Righr of Dispensation Publick Necessity and Publick Good requiring it It is proved by the Fifth Ground before laid and the Instances urged to prove that Ground That Magna Charta hath been and may be Suspended by this Right when Publick Good requires such Suspension And what matter is
in the same Parliament thereby intending to make the said Earl either to retract or to forbear prosecution of his Charge against the said Duke or to invalidate his Testimony And true it is that the Fifth Article of the Charge against the said Earl was That he Counsell'd and perswaded King James to Grant and to allow unto the Papists free Toleration and Silencing of all the Laws made and standing in force against them The Charge is not That he Counsell'd the King to Grant a Publick and Free Toleration But to Dispense with the Laws For Toleration and Dispensation import no more than a permission to Exercise their Religion in their private Houses and to Suspend the Execution of the Laws there mention'd for a Time. All which the said King had power in pursuance of a Treaty and Articles between Crowns upon the breach or performance of which Peace or War Common-Good or Publick-Prejudice depend to do But to Counsel a free Toleration imports an Allowance of Publick Worship which as Affairs then stood here could not consist with Publick Peace The Temper of this Nation not enduring it nor could the Papists have been secured from the Rage of the People in the Enjoyment of it And the Silencing of the Laws might import a Total Repeal of them which the King did not Claim a Right to do of himself So that this comes not to our Poynt in Question This Lord was not Impeached by Parliament nor by any appearing Concurrence of Judges nor for Advising the King to Dispense with any Penal Law for Publick-Good or where Necessity required But there is yet something more in this Case of the Earl of Bristol The whole Story is told at large by Mr. Rushworth in the Book before cited And it had this farther in it viz. That when the Impeachment was brought into the Lords House the Earl of Bristol put in his Answer to it and as to this particular Article he first denyed positively That he had Counsell'd any thing in the matter charged And then he declared fully what was done and set forth at large the matters of Fact before-mention'd as well as to what was Signed by King James and his Late Majesty King Charles the First as also the Declaration Signed by the Lord Conway by King James his Order So that in this Case there are these things worthy observation to the present purpose First That it is not probable but that the said Duke of Buckingham being the then Greatest Minister of State and Favourit to King James did Advise in all things which then passed in that Affair and particularly in the Declaration Signed by the Lord Conway But touching the Lord Conway's Signing a Declaration there can be no question Secondly That the said Earl wanted neither Wit Will nor Courage to Charge the said Duke as far and with Crimes as distastful as he could find any wherewith to Charge And that he was not fond of nor any ways obliged to spare the Person of the Lord Conway who was the Duke's Friend and must have been the Duke's most material Wittness to save him in Case the Charge against the Duke had been prosecuted Thirdly That the Parliament then sitting was as diligent in Enquiring into Misdemeanors as much displeased with the Duke of Buckingham as little tender of the Lord Conway as Secretary of State and much inclined to Enquire in relation to the too much Advancing and Stretching the King's Prerogative to the prejudice of the Subject and against the known Laws as peradventure any Parliament that ever Sett in England yet neither did Parliament nor this Earl of Bristol Charge any thing against this Duke or Exhibite any Impeachment against the said Lord Conway for Advising to Dispense with Penal Laws nor did this Parliament any way appear to prosecute the said Earl of Bristol upon this Impeachment Exhibited against him though he was thereby particularly Charged for thus Advising This seems a very probable Argument at least to prove that both the Earl of Bristol and this Parliament did Believe the King to have this Right which is here Asserted Object IX That King James when he Treated in Relation to the Match with Spain being demanded to Suspend the Execution of the Penal Laws then in force against the Papists was pleased to Answer That it was not in his Power so to do without a Parliament Answ This whole Objection is most certainly a mistake For it is evidently proved before what Opinion King James had and how well he was satisfied with and understood his Right in the point of Dispensations And how Wise and Knowing a Prince he was all Man-kind is satisfied Therefore if any thing were demanded of that King in that Treaty to which his Majesty gave any such Answer as is here Objected The demand did certainly Extend so far as to require a Total Silencing and Repealing of those Laws In which Case his Majesties Answer was most certainly True. But to suppose that King to have given this Answer where the Question or Demand was only touching a Suspension of Laws and then afterwards to have offer'd and promised a Suspension of the same Laws under his Great Seal would be with the highest Folly Self-contradiction and want of Sincerity imaginable Object X. That his now Majesty in a Speech heretofore made by him in this present Parliament did by implication agree that he had not by wishing that he had such Power as is now insisted on And when afterwards his Majesty by Advice took upon him to Exercise this Power he did again upon further Advice wave the same Answ I. This as well as the other Objections in the Case of King James if they were granted as far as the Objections can be put Nay if the Cases were That King James had and his now Majesty also past Acts of Parliament express in the point to bar themselves and the Crown of this Right the same must be only intended as to the ordinary Exercise of that Right But not of the Extraordinary Exercise thereof when the Publick Good requires the same should be Exercised which is proved by the Grounds before layd Secondly And that his Majesties proceedings are to be thus intended and not otherwise is proved by the continual Exercise of that Power in the Cases of Suspensions of Penal Laws suspended by the King 's sole Power and the Suspensions never Question'd never Complain'd of but still submitted unto and admitted as Legal namely those touching Navigation touching Importation of French-Wines and touching The Breadth of Cart-Wheels If the King had been really perswaded into a real Belief by the mistaken Advice of the Earl of Clarendon whose Opinion in Law was never esteemed of Venerable Authority at the time of his Speaking which is Objected It is clear by his Majesties Practice since that he hath found cause to alter that Belief And if his Majesty for Reasons best known to his Royal Self hath in one particular Case waved the
Exercise of his said Power yet his continual Exercise of the same Right in the other last mention'd Cases makes it evident that it is only a wavior in this single Case in particular Circumstances and upon such Advice as that he still nevertheless thinks it most reasonable and legal to continue the Dispensations by which his Majesty hath Suspended those other Laws And it were Injurious to the Care and Wisdome of his Majesties Great Counsel and to the providence and foresight of his Counsel Learned the Judges to conceive that they do not take the Execution of those other Laws to stand well Suspended by his Majesties respective Proclamations by which they stand Suspended whilst yet they have not complained of those Suspensions nor prepared or advised the preparing of any Bills to be offered to his Majesty for the Repealing or Suspending of those Laws by Act of Parliament Object XI That all our present Judges have expresly declared their unanimous Opinion in the very point by giving in Charge the Laws intended to be Suspended by his Majesties late Declaration which hath been the Occasion of the Publick Debates touching this matter albeit the said Declaration did expresly affirm the said Suspension to be for Publick-Good Answ The Proceedings of our Reverend Judges are always Regulated by prudent but strict Rules and those Rules relate as well to matter of Form as to matter of Substance This our Law requires and by their Oaths they are bound up to proceed according to Law which is the true reason why many Judgments given in our several Courts are afterwards reversed in Cases otherwise very honest and just Learned Men have been often heard to wish that Matters of Form might be less Considerable in our Laws And that our Judges of every Court of Law had also a Power to Consider and Judge also of Equity in all Cases coming before them It seeming very harsh to such as do not throughly grasp the Reasons of things to hear it said that an honest just Cause was lost for matter of Form or because of the Errror or Ignorance of a Clerk And that Law in such a Case is one way and Conscience and Equity another way And these things seem often times in particular Cases to be very mischievous But when it shall be consider'd That this way of being tyed close even by an Oath to strict Rules is that which preserves us from Arbitrary Judgments and keeps all things Certain and that many particular Mischiefs are rather to be tolerated then the great and common Inconveniencies endured of Trusting any Judges whatsoever with an Arbitrary Power And that for the Relieving even of particular Persons against such mischiefs as may happen from the Close Observance of these strict Rules our Government hath appointed Courts of Equity No one can reasonably Complain that they are hurt or Injured Now it is conceived that the reason of this way of proceeding in our Judges in the Poynt objected was not that they judged the King to have no Power to Dispence with Penal Laws for the Publick-Good and when Necessity and Reason of State required but they were tyed up by their Oaths as is before-mention'd And consequently were bound not only to consider the substantial part whether by the King 's sole Power the Execution of Penal Laws upon Grounds warranted by Law might be Suspended But they were also to Consider the Form and Manner of the King 's Executing of this Power And if the same were not done in such manner as the Rules of Law required they could not legally be so bound by it as to be Excused from giving those Statutes in Charge though they might otherwise have a Liberty so far to comply with the Publick-Good and with what the King whom the Law hath constituted Judge of what is so judged to be necessary for the Publick-Good as not rigorously to compell the Execution of what they were nevertheless bound by their Oaths to give in Charge And this is conceived to be the true State of the present Case urged in the Objection which rightly understood makes nothing against the King's Right here affirmed and justifies the Prudence and High Integrity of the Lords the Judges The King found it absolutely necessary for Common-Good being to Engage in a most necessary War to suspend the Execution of several Penal Laws The Resolution taken in the Case was upon serious Debates had with his Ministers of State it being purely an Affair of State consequently his Majesties Counsel of Lawyers were not consulted in the Poynt it not being within their Cognizance to Advise in Affairs of State such as are the making of Peace or War c. Nor do they think themselves disparaged in being omitted out of Consultations of this nature The King upon this Advice resolves upon the thing as necessary and finding in common practice That it was not to be doubted but that he had a Power inherent in him to do this His Majesty having formerly Exercised this Right in the aforesaid Cases of Suspending the Execution of several Laws made in Relation to Cart-Wheels French-Wines c. In all which his Counsel of Lawyers had prepared and drawn up the Instruments by which the same were Suspended and no Complaint or Exception was ever taken against the same by any of the Judges or by the Parliament The form of doing this was by his Majesty left to his Ministers of State because it being matter of State it lay most properly within their Sphere to express the Reasons which were therein to be set forth for the doing what was to be done These States-men being solely used to consider matter of Substance and being mere Strangers to matters of Form and consequently not reflecting upon matter of Form as necessary drew up the Instrument by which this Suspension was to be Executed by the way of a Declaration and thought the passing of that Declaration in Council by his Majesty and the Publishing the same in Print being in their Judgments the sole matter of substance was all that was necessary in this Affair But it happened in this Case that for want of Advising with his Majesties Attorney General by whom those Instruments were prepared which suspend the Execution of those other Laws there was something amiss in this So that it came not so Legally and in such Form to the Judges as those others did consequently they could not by reason of their Oaths omit to give in Charge the Laws intended to be suspended by this Declaration Yet they took care like most prudent Persons and most Loyal and Dutiful Subjects not to press the rigorous Execution of any one of those Laws because the King had declared his Royal Judgment That the Execution of them was to the prejudice of Common-Good Nor yet did they proceed to declare any Reason why they continued to give the same in Charge nor to declare any Negative Opinon that the same were not Suspended But left all men to conjecture
from their not pressing the Execution of any of those Laws that the same were in Truth sufficiently Suspended in substance And yet that there was some Defect in the legal Form of that Declaration so that they were in their Opinions not excused from giving the said Statutes in Charge And this was rightly taken by the whole Kingdom none of those Laws were put in Execution but Publick Good was complyed with And clear it is the whole Kingdom was thereby in the greatest Peace and Quiet that it had enjoyed in the memory of man All the Designs and Contrivances of the Dutch for putting our Nonconformists into Disorders and breaking our Publick-Peace were prevented to their great Astonishment and Confusion And our Reverend Judges by this their great Wisdom preserved the King's Honor conformed unto and complyed with his Royal Intention justified his Right in the substantial part of it and preserved themselves from all possibility of being blamed either by his Majesty or by the Parliament And by this are easily reconciled the Carriages and Proceedings of the Judges in this particular poynt wherein to those who do not consider things well they seem to have disallowed the King's Right of Dispensing with Penal Laws And their Carriages and Proceedings in the other Cases where the King suspended the Laws relating to Navigation to Importation of French-Wines and to The Breadth of Cart-Wheels none of which were ever Executed or given in Charge since the Execution of them were suspended by Proclamations drawn up and prepared by his Majesties Attorney General and passed under the Great Seal of England and so made matter of Record before they were published in Print Object XII Admitting our Judges in Favour of our Kings whose Officers they were to have countenanced this Right and that our Parliaments have been silent without Complaining of the Exercise thereof as to particular Persons as not esteeming it inconvenient to admit the King a Power to gratifie single Persons yet no Parliament ever allowed the King to have a Right of Dispensing even as to particular Persons much less as to General Dispensations and the Exercise of such a Power would in a great measure render Parliaments useless Answ I. This inconveniency of the King 's having this Right as to General Dispensations is less than his having the same as to particular Persons For it may happen That Dispensations to particular Persons may by the indirect means of Gifts bestowed on the Procurers of them be Granted upon false suggestions and the King be deceived in his Grants of them without any Default in the King But general Dispensations cannot be supposed to be made but upon great Advice and as the Effects immediate of the King's Judgment These therefore were never by our Law submitted to the Judgments of our Judges as being grounded always upon Reason of State Publick-Good and Necessity of which our Judges never take upon them to judge but rely as to the matter of Fact upon the King's Judgment But particular Dispensations have been in all Ages under the Judgment of our Judges so as to judge whether they are well-grounded or not and whether the King were deceived in his Grant or not Secondly As to the Allowance of this Right in either Case by Parliaments If it be meant That the same was not Originally Granted to the Crown by Parliaments it is Agreed for if it were it might then be taken away by the same Authority which it is proved that it cannot be But if by the Objection it be only intended That it hath not been admitted by Parliaments then the Objection is denyed And for justification of the Denyal as to the King 's Right of Dispensing with particular Persons these two instances will serve First in the Act of Parliament before cited which endeavoured to Bar the Crown of the Exercise of this Right it must be agreed That it was admitted by that Parliament That the King had this Right otherwise it had been vain to provide against the Exercise of it in Dispensing with that Statute nay the endeavour to bar the Exercise of it in that single Point proves that they admitted he might lawfully Exercise it as to other Penal Laws and that they conceived he might have Exercised it so as to Dispense with that also in case they took not care to bar him The Statute intended is that of 23. H. 6. c. 8. By which it is made Penal for any one to Accept of and Execute the Office of Sheriff of one County twice And it is thereby expresly Enacted That every Pardon then after made for such Offence and for such Forfeiture should be void and all Patents made to the contrary should be void Notwithstanding any Clause of Non obstante that is any Dispensation therein to be contained This clearly is an admittance That the King had this Right But it is also further Remarkable upon this Statute That the better to bar the King of the Exercise of this Right as to this Law this particular Act gives Power to the Prosecutor to bring his Action for the Recovery of the Forfeitures in his own name intending doubtless not to have the King's Name used and thereby to bar the King's Attorney from helping the Defendant by a Non vult ulterius prosequi Yet notwitstanding all this Solicitude and Care taken the Law hath adjudged as is before proved That neither this Act nor any other Power whatsoever could bar the King from dispensing with this Law nor from using the Service of any Subject in any Office nor could the Subject be liable to any Penalty by this or any other Statute for Serving the King in any Office upon the King's Command The King being Entituled to the Service of every Subject by the Law of Nature by which Law every Subject owes a Legeance to the King which Rights being inherent and inseperable they cannot be taken off by any Acts of Parliament The Second Instance for proving the King 's Right of Dispensation as to particular Persons and peradventure it may prove the same as to general Dispensations also to have been admitted by Parliament is full and express in the Poynt It is Rot. Parl. 1. H. 5.11.22 cited by Rolle a most avowed Enemy to the Crown Tit. Prerogative le Roy. fol. 180. the words thus The Commons prayed That the Statutes for voyding of Aliens out of the Kingdom might be Executed to which the King agreed saving his Prerogative That he might Dispense with such as he pleased And upon this the Commons Answer'd That their Intentions was no other nor ever should be by the help of God. Now if this Prerogative of Dispensing with such as the King pleased were intended as it was reasonable it might be to Dispense with all of any particular Nation in case he pleased and any Articles of League required it as they might well do and in which Case the Non-performance would have occasion'd a War then this Instance proves an Admittance of