which is that such service is perfect freedom Hence our English Laws in Magna Charta are called Liberties Concessimus omnibus hominibus regni nostri has libertates subscriptas says King Henry the Third in the first Chapter of Magna Charta which Sir Edward Cook expounds to be meant of the Laws of England quia liberos faciunt says he And tho' this Statute of Magna Charta run in the stile of a Grant from the King in the word concessimus for the honour of the King yet as he says they were the Common Laws and Rights of the People before and it was made by the King Lords and Commons as is recited by the Statute of 15 Ed. 3. c. 1. Thus it appears what the true Nature and Properties of a Just Law are of how great Force and Authority a Law ought to be how dear and precious Laws have been heretofore to Prince and People and whence they have their Birth and Original Thirdly I come now to that Notion or Invention of a Dispensation the Power of relaxing or dispensing with a Law and enquire into the Original and Nature of it and the great Mischief that hath arisen from it The Pretence for the Use or Need of a Power of Dispensing is this viz. There is no Providence or Wisdom of Man nor of any Council of Men that can foresee and provide for all Events and variety of Cases that will or may arise upon the making of a new Law. But a new Law may sit heavy upon some particular persons or in some extraordinary Case that may happen let what care can be taken in the penning of it It is enough to commend a Law if it be beneficial to the greater number and be for the publick good Laws are fitted Ad ea quae frequentius Accidunt and not for rare and extraordinary Events and Accidents as the Romans had no Law against Parricide And the Law says better is a Mischief than an Inconvenience By a Mischief is meant when one Man or some few Men suffer by the hardship of a Law which Law is yet useful for the Publick But an Inconvenience is to have a Publick Law disobey'd or broken or an Offence to go unpunished Now from this suppos'd and imaginary defect of Law or some particular mischief or hardship sometimes tho' very rarely happening to some Men which hardship was not foreseen by the Makers of the Law altho' this is oftner pretended and feigned then hapning in truth occasion hath been taken to assert a Power in the Prince or chief Ruler to dispence with the Law in extraordinary Cases and to give ease or relaxation to the person that was too hard bound or tied to a Law for as I observ'd before the Law is of a binding and restraining nature and quality It hath the same specious pretence as a Law made 31 H. 8. c. 8. had which was of most desperate and dangerous consequence had it not speedily been repealed by the Statute of 1 E. 6. c. 12. The Title of that mischievous Act of 31 H. 8. is this An Act that Proclamations made by the King's Highness with the Advice of the Honourable Council meant of the Privy Council shall be obey'd and kept as tho' they were made by Act of Parliament The Preamble recites the King by Advice of his Council had thentofore set forth sundry Proclamations concerning Articles of Religion and for an Unity and Concord to be had among his Subjects which nevertheless many froward wilful and obstinate persons have wilfully contemned and broken not considering what a King by his Royal Power may do and for lack of a direct Statute and Law to coherce Offenders to obey those Proclamations which being still suffered should encourage Offenders to the disobedience of the Laws of God and sound too much to the great dishonour of the King 's most Royal Majesty who may full ill bear it Considering also that sudden Occasions fortune many times which do require speedy Remedies and that by abiding for a Parliament in the mean time might happen great prejudice to ensue to the Realm and weighing that his Majesty which by the Regal Power given him by God may do many things in such Cases should not be driven to extend the Supremacy of his Regal Power by wilfulness of froward Subjects It is therefore thought necessary that the King's Highness of this Realm for the time being with the Advice of his Council should make Proclamations for the good Order and Governance of this Realm of England Wales and other his Dominions from time to time for the Defence of his Regal Dignity as the Cases of Necessity shall require Therefore it is enacted that always the King for the time being with the Advice of his Council whose Names thereafter follow and all the great Officers of State are mentioned by the Titles of their Offices only for the time being or the greater number of them may set forth at all times by Authority of this Act his Proclamations under such Penalties and of such sort as to his Highness and his Council or the more part of them shall seem requisite And that the same shall be obey'd as tho' they were made by Act of Parliament unless the King's Highness dispence with them under his Great Seal Here at one blow is the whole Legislative Power put into the King's hands and there was like to be no further use of Parliaments had this continued Then there follows a Clause that would seem to qualifie and moderate this excess of Power but it is altogether repugnant and contradictory in it self And the Conviction for any Offence against any such Proclamation is directed not to be by a Jury but by Confession or lawful Witness and Proofs And if any Offender against any such Proclamation after the Offence committed to avoid the Penalty wilfully depart the Realm he is adjudged a Traytor And the Justices of Peace are to put these Proclamations into execution in every County And by another Act of 34 and 35 H. 8. c. 23. Nine of the Great Offices are made a Quorum c. for they could not get half the number to act under it The Act of 1 E. 6. c. 12. which repeals the terrible Law begins with a mild and merciful Preamble and mentions that Act of King H. 8. which as this Act of E. 6. does prudently observe might seem to Men of Foreign Realms and to many of the King's Subjects very strict sore extream and terrible this Act of King E. 6. does therefore by express mention of that Terrible Act wholly repeal it And so that Law to use the Lord Bacon's phrase was honourably laid in its Grave And God grant it may never rise again It is very probable that this Terrible Law was drawn by King Henry the Eighth's own hand by that expression in it that the King may full ill bear the Disobeying of his Proclamations and the dishonour done to him by it and by several
to his Crown or Imperial Jurisdiction The Original of this Correction is in Sir Cotton's Library See the History of the Reformation Sir John Fortescu sometime Chief Justice and afterwards Lord Chancellor in his Book De Laudibus Legum Angliae The Civil Law says he runs thus Quod Principi placuit legis vigorem habet sed longe aliter potest Rex politice imperans quia nec Leges sine subditorum assensu mutari poterit Potestas regia Lege Politica cohibetur Sir Edward Coke in his 12 Rep. fol. 63 64 and 65. says It was greatly marvell'd that the Archbishop Bancroft durst inform K. James that such absolute Power and Authority as is there mentioned belong'd to the King by the Word of God and there Sir E. C. cites the Sayings of these ancient Authors in our Law But he says that the King was greatly offended with him A Learned Civilian gives some restraint even to the Lex Regia in this point Vinius in his Comment upon the Instit. fol. 381 Populus Romanus jura Majestatis omnia abdicative in principem transtulit hinc Principes Romani Legibus soluti fuerant But he utterly opposes that Opinion of the School-men Principem Legibus solutum esse quoad vim coactivam sed etiam quoad vim directivam Rot. Parl. 11. R. 2. The King and Parliament declare That the Realm of England never was nor was it intended by the King and Lords that ever it should be governed by the Civil Law. In the deciding of the Great and Royal Controversie in the time of K. E. 1. concerning Right of Succession in the Crown of Scotland it was debated by the Commissioners according to what Law that Case should be determined whether by the Law of England or of Scotland by the Civil Law as being the Jus gentium before the King of England as being the Superior Lord they all at last concluded That the Civil Law by no means should be admitted Ne inde Majestatis Anglicanae Juri fieret detrimentum Seld. dissertatio ad Fletam 539. Mr. Selden mentioning John of Salisbury who said that in his time there were those that did prefer the Civil Law before all other Laws especially that de absoluta principis potestate quae in lege habetur Regia he says it was meant of none but de assentatoribus illius saeculi exgenere Hieratico non de gente Anglicana aut de aliis qui Judiciis tunc praefuere It would have been far from any of the English Nation especially from any of the Judges to have maintained any such Opinion But let it be understood sano sensu and in a proper and literal sence too and it is very true and agreeable to our Law quod Regi placuit legis vigorem habet without the King 's Placet and his Royal Consent nothing is Law amongst us The Laws already in force have had the Consent of his Predecessors and no new Law can pass without the Royal Assent nay they are his Royal Words Le Roy le veut that first gives life to any new Law. And the Judges Oath in the time of H. 3. was that they should judge Secundum Legem consuetudinem regni which words as Mr. Selden there says seem designedly to Exclude the Jus Caesareum then lately brought in whereof as he says some were fond in those times and he tells us of what Order they were but they were not Common Lawyers nor Judges but the Hierarchy But should Judges give countenance to any such Law in the Latitude of it they should be put in mind of what was done by King Edward the Confessor which we are taught by Sir Roger Twisden in his Preface to the Laws of William the First annexed to Mr. Lambert's Treatise De priscis Anglor ' Legibus fol. 155. Omnes says he qui Leges iniquas adinvenerant injusta Judicia judicaverant multaque concilia contra Anglos dederant exlegavit such Enemies to the Laws of England should be put out of the Protection of the Laws of England Rode caper Vitem c. It is said amongst the Laws of King Henry the First c. 28. and it is in the very Body of that Law Lambert ibid. 186. Gravius Lacerantur pauperes à pravis Judicibus quam à cruentis hostibus The Lords of Parliament when any attempt is made to introduce the Caesarean Law as once in the time of our K. H. 3. there was an endeavour to bring in part of the Pontifician Law and it was by the Bishops I make no doubt but they will answer Una voce as their Ancestors then did Nolumus Leges Angliae mutare quae hucusque usitatae sunt approbatae The Statute of Merton c. 9. 2 Instit. fol. 96. The Act of 25 Car. 2. one of the principal Ends and Aims of it is to keep out that Foreign Power that would pretend to a Soveraignty or Supremacy over our Soveraign but the Dispensing with this Law which is maintained to be a Right incident to the Soveraign Prince seems to be the likeliest way of setting up again that Pretence and Claim of a Foreign Bishop which was so long usurp'd and against which Pretence so many Acts of Parliament have been made and which our ancient Kings did of old utterly renounce and disclaim and we know the same Foreign Bishop hath made another Pretence to England besides that Ecclesiastical Power by colour of a Resignation made by King John. But King Hen. 3. Son and next Successor to King John in the General Council at Lyons Anno 1245. by his Embassador and Advocate made a Special Protestation against that pretended Resignation made to Pandolphus the Pope's Legate Innocent the Third as a meer Nullity In quod nunquam consensit Regni Universitas and afterwards upon the Pope's issuing out of Process against K. E. 3. and the whole Kingdom for the Homage and the Arrears of the 1000 Marks Rent due to him The Parliament declared That King John nor no other could put himself or his Realm into such a subjection without their consent And that it was against the Oath King John had taken at his Coronation This Record expounds the word Sovereignty in the true sence of it namely that our Sovereign is no way subject to the Bishop of Rome or to any Foreign Power But it doth no way import that the King can dispose of his People ut placuit Regi or alter the Government without the Peoples consent nor dispence with his Coronation-Oath but proves the quite contrary A Short Argument UPON THE PLEADINGS Of the aforementioned CASE of Sir EDW. HALES THE first Point argued by the Plaintiff's Councel was That it appears by the Declaration and it is now confess'd by the Defendant's joyning Demurrer that the Defendant hath been Indicted for this Offence in exercising the Office of a Colonel without having taken the Tests And upon the Indictment he either did plead this Dispensation or might have
and shew the great Occasion and Necessity for the Making of it the Scope and Design of it the excellent Remedy it does prescribe and the great Benefit and Security that might arise to the Nation from it were it duly observ'd Secondly I shall then discourse briefly of the Nature of Law in general as far only as may be useful and pertinent to our present Case and of the great Force and Authority that a Law ought to have and of the great Veneration that should be paid to it especially if the True Religion and the Honour of Almighty God the Safety of the Government and the Publick Good and Peace of the Nation depend upon it as they all do upon this Act of 25 Car. 2. Thirdly In the next place I shall give an Account of the True Nature as near as I can and of the Original and Growth of the Notion or Invention call'd a Dispensation and who were the first Authors of it and about what time it began I shall endeavour to shew the right use of it if there be any and where the just Power of granting Dispensations does reside as also the abuse of it and how that according to the late Practice these Dispensations are contrary and repugnant to the Nature and Properties of Law tho' they pretend themselves to be Law they have a different Original and Foundation and do indeed subvert Law. First For the Occasion and Necessity for Making of this Act of Parliament and the Scope and Design of it and the Ends aimed at they all appear in the Preamble The Preamble distinguishes the King's Subjects into two sorts 1. Some from whom there are great Dangers 2. Those who are the Persons subject to those Dangers The Dangers are from Popish Recusants those who are threatned by those Dangers the Act terms them his Majesty's good Subjects It would be needless to tell what those Dangers are and whence they arise All the times since the Reformation have abundantly discover'd what the Dangers are There have been a multitude of Acts of Parliament made that have still been fencing against those Dangers which do sufficiently point them out so do the frequent and incessant Addresses from every Parliament for many Years setting forth the Dangers and all our Histories and Publick Writings and especially those written and published by his now Majesty's Royal Grandfather King James the First and a multitude more but above all the sad event of things and what we all see is come to pass these disclose to all the World what the Dangers were and the great need of a further Remedy Their destructive Principles and their desperate Designs and Practices do abundantly testifie the Danger from the one sort and the just fears of the other sort of Subjects The Scope therefore and the great End that our Act of Parliament had is to prevent the Dangers from the one and to quiet the Minds of the other many former Acts of Parliament which had the same end and purpose proving ineffectual The Remedy provided is very suitable and the likeliest and most effectual that either the Wisdom or Supreme Authority of the King and Parliament could devise and the very Remedy points out the danger The Danger would be at the heighth of it if the dangerous Principles and Practices should but arrive at the Power and Authority and gain that into their hands and it was growing apace towards it The wise and proper Remedy therefore provided by the King and Parliament is first to discover who are Popish Recusants to offer a Trial and Test to all that should be in any publick Trust and Authority for it was suspected that there were many Papists under the disguise of Protestants And in the next place so to Fence and Guard the Power and Authority and all Publick Trusts in the Nation that they might by no means come into the hands of the Papists Persons entrusted with the Power and Authority over the Nation had need give a signal Testimony of their Loyalty and Fidelity to the King and Government and of their true Zeal for the Religion establish'd by Law. The Test as to their Loyalty are the two Oaths of Supremacy and Allegiance and neither of these are new Tests The Test as to Religion and the true Worship of God are likewise two the Receiving of the Blessed Sacrament and the Subscribing a Declaration against the Doctrine of Transubstantiation The Temper and Moderation shewn by his late Majesty and both Houses in this Act of Parliament deserves to be observ'd It is not like the Leges Draconis written in Blood this is no Sanguinary Law. It does not proceed against them with Fire and Faggot It does not disturb them in their Estates and Possessions it does not deprive them of the Liberty of their Persons Nay it does not hinder them from the Exercise of their own Religion if it may be so called I speak as to our present Act of 25 Car. 2. only It lets them live quietly in their Habitations without so much as putting any Oath or Test upon them so long as they live private men It only requires that if they will be entrusted with Power and Authority they should give some just and reasonable Security and Assurance that they will be true to the Religion and the Government establish'd If they will be medling with the Power without giving such security then at their Peril be it The Law pronounces them uncapable and disabled and inflicts Penalties upon such as shall presume to violate this Law. And it is worth the noting how sollicitous and intent the Makers of this Law were that this Test and Tryal might be taken and performed with great solemnity and that the Law might not be eluded with any Arts and Tricks that no Cheat might be put upon it All this shews that the Law-makers had great expectation from this Law. The Oaths are to be taken in one of the two highest Courts of Westminster-Hall the very Hours of the Day are limited when they must be taken that is when the Courts are usually fullest during the taking of them all Pleas and Proceedings are to cease There is the like care taken concerning the receiving of the Sacrament and of the certifying of it and plentiful proof to be made of it and then the recording of it And the like for subscribing the Declaration against the Doctrine of Transubstantiation It were great pity that after all these pains they should signifie just nothing and that so high an Authority should be made ridiculous But after all this securing against the Danger from Popish Recusants how shall we do to secure against the Danger of Dispensations Suppose this Act had contain'd a Clause in it declaring that all Dispensations and Grants with Non obstante's to the contrary of this Law should have been ipso facto void and had inflicted Penalties upon such persons as should have procur'd them would this have
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
chap. 7. He shall think that he may change Times and Laws and they shall be given into his hands Bishop Jewel's Exposition upon the Epistle to the Thessalonians fol. 131. Antichrist says the Bishop is there called O. Anomos a Man without Order or Law that Man of Sin which is one of the peculiar Notes of Antichrist He shall seek to be free and go at liberty he shall be tied to no Law neither of God nor Man. Hence it is said of the Pope that he is solutus omni Lege humana In iis que vult est ei pro ratione voluntas nec est qui dicat illi Domine cur ita facis Ille potest supra jus dispensare de Injustitia facere justiciam Corrigendo jura mutando Pope Martin the Fifth dispens'd with a Man that married his own Sister In this last Instance the Pope did directly write after the Copy of an Heathen King. The story of Cambyses is the same Case in the very point with this last of Pope Martin Sir Walter Raleigh mentions it in his History of the World. Cambyses inquir'd of his Judges whether there were any Law among the Persians that did permit the Brother to marry his own Sister It was the intent of Cambyses to marry his own Sister too The Judges who as Sir Walter Raleigh observes had either Laws or Distinctions in store to satisfie Kings and Times they make a subtil answer that there was not any thing written allowing any such marriage But they notwithstanding found it in their Customs that it was always left to the Will of the Persian Kings to do what best pleas'd themselves This was a Non obstante with a witness This surely and the Popes practice together gave the occasion to Mr. Chillingworth's observation He that would usurp says he an absolute Lordship over any People need not put himself to the trouble of abrogating or disannulling the Laws made to maintain the Common Liberty for he may frustrate their intent and compass his design as well if he can get the power and authority to interpret them as he pleases and to have his Interpretations stand for Laws If he can Rule his People by his Laws and his Laws by his Lawyers therefore says he there is a necessity of a frequent resort to be had to the Law-makers not only to resolve Difficulties of Judgments but to keep the Power of Interpretation within its due bounds which is excellent advice I shall give but one Instance more and that is of the most impious sort of Dispensations that could possibly be devised I find it in the History of the Church of Scotland written by Archbishop Spotswood He tells us that in Anno 1580. Dispensations were sent from Rome into Scotland whereby the Catholicks were permitted to promise swear subscribe and do what else should be requir'd of them so as in mind they continued firm and did use their diligence in secret to advance the Roman Faith. Thus we see the monstrous Abuses brought in by Dispensations I have been something long upon this Subject but it was necessary to shew how that it is in the very nature of it to be stretching and growing and at last to be altogether unlimitted and will totally subvert the Law. Having thus laid my Foundation I shall now proceed from thence to raise my Arguments against Dispensations in general to prove that they are not Law but indeed contrary to Law and destructive of it I hold there is no just nor lawful Power of Dispensing with any Act of Parliament in any other hands than in those that are the Law-makers that is in the King and Parliament in conjunction I confine my self to Dispensations with Acts of Parliament 1. My first Argument shall be from the Nature of a Law whereof an Act of Parliament is the highest and of greatest Authority A Law hath its Name as I said before from its Nature Lex à Ligando it binds and compels to Obedience and it binds together and cements it knits and unites a multitude of People and makes them all as it were but one body Now a Dispensation is of a quite contrary nature and is destructive of Law As the Law does Ligare a Dispensation does Relaxare It is defin'd to be Relaxacio Juris it does unbind and set loose the Obligation of the Law and by consequence tends to the dissolving of the Body Politick Whatsoever is destructive of the Law cannot it self be Law for then the Law would be felo de se Lex quae Leges evertit ipsa Lex esse non potest a thing divided against it self and therefore will not stand Ubi non est pudor nec cura juris instabile Regnum est says Seneca Law is made by an universal consent and agreement of Prince and People I have already shewn how that the Common Law which is as ancient as the Nation it self is that Covenant which was agreed upon by Prince and People at the first framing and institution of the Government The Statute-Law hath its Force and Authority from the like consent and nothing is Law without that consent as appears by the Preamble of 25 H. 8. c. 21. concerning the very Point of Dispensations Sir John Fortescue says Rex leges sine subditorum assensu mutare non potest potestas regia lege cohibetur in his Book de Laudibus legum c. Now for the Prince alone without the like consent to depart from that Agreement and at his will and pleasure to break any Article of it is in effect to put the sole Power of the Law into the hands of one person which receiv'd its force and vigour from the consent of all which is irrational Bracton who as Sir Edward Coke says in his Preface to the Ninth Report was a famous Judge of the Common Pleas in the time of King Henry the Third is of this Judgment Leges says he cum fuerint approbatae consensu utentium Sacramento Regum confirmatae mutari non possunt nec destrui sine Communi consensu Concilio eor ' quor ' concilio consensu fuerint promulgatae 2. The Laws of England both Common and Statute Law have as I have already shewn a different Original from that of the Power of Dispensation as it is exercis'd now among us they have not the same Father The King who is Pater Patriae with the consent of the People is the Father of our Laws he is Juris Pater but he that is called the holy Father and from thence hath his name of Pope is the Father and first Inventer of Dispensations so that there is no kindred nor affinity between the Law and Dispensation 3. The Laws amongst us and this faculty of Dispensations as they have a different Original so they have no resemblance one of another facies non omnibus una est they have contrary qualities and dispositions The Law is equal and impartial and hath
no respect of persons and as before I observ'd from Aristotle is a Mind without Affection Now the nature of a Dispensation is to favour some to set some at liberty from the obligation of the Law and is a kind of praeterition of others leaving them still under the tye and obligation and obnoxious to the Penalty if they transgress Whereas in a well govern'd Kingdom there ought to be Unum pondus and Una Mensura in distributive as well as commutative Justice It was part of the Oath that was taken by King William the First who is commonly stiled the Conquerour that he would Aequo jure Anglos Francos tractare Which Oath favours nothing of a Conquest nor does it run in the stile of a Conquerour And it is the Oath of a Judge at this day That he shall truly serve the King and his People c. That he shall do Right to every Person notwithstanding the King's Letters that is notwithstanding any Non Obstante It is a Maxim in Law Quo modo aliquid Ligatur eo modo dissolvitur Now a Law being made by Consent of all should not be Dissolv'd again but by the like Consent that is by Authority of the King and Parliament who have the Legislature Dr. Willet in his Synopsis Papismi makes a Difference between a Toleration and a Dispensation That of Moses in case of Divorces was a Tolleration A Dispensation says he must be of as high a Nature as the Institution None but the Law-Maker can Dispence with the Law not he that hath but a share in the Legislature And from hence I shall take occasion to assert and shall endeavour to make good my Assertion by Law that the Lawful Power of Dispensing with an Act of Parliament that concerns the Publick is only in the hands of those that have the Legislative Power I confine my self to such Acts only as concern the Publick as the present Act we have now to do with does in a very high degree And therefore I hold that none can Dispence with such a Law but the King and Parliament and such as they entrust with it I shall begin to prove this by an Act of Parliament which is the highest Resolve and Authority in our Law It is in the Preamble of the Act of 25 Hen. 8. c. 21. the Statute of Dispensations and the Preamble of a Statute is Law as well as the enacting part or body of the Law. It is in effect a Declaration of what was Law before at least it shews the Opinion and Judgment of the Law-Makers which is of high Authority It first utterly disowns and renounces the Pope's long usurped Claim and Pretence of Dispensing with any Person within this Realm even in Matters Spiritual tho' by him practis'd for many Years I desire to observe upon this that long usage by an Usurpation gives no lawful Right But I would further observe too that where it hath been long admitted and used it is in such Case reasonable for none but the Supream Court to undertake it and declare against it In the next place this Act of Parliament does affirm That this Realm of England is subject to no Laws but such as have been made and taken by sufferance of the King and his Progenitors and the People of this Realm at their free Liberty by their own Consent to be used amongst them and have bound themselves by long Use and Custom to the observance of them as to the customed and ancient Laws of this Realm Originally establish'd as Laws of the same by the said Sufferance Consents and Customs And none otherwise This shews the Original of our Common Law. This likewise clearly proves that whatever is imposed upon the People without their Consent hath not the Authority of a Law And it cannot be shewn that ever the People did consent to this Power or Practice of Granting Dispensations But it plainly appears that our Acts of Parliament are so far from approving or countenancing of it that they have often fenced against it altho' in vain hitherto And tho' the Usage have been very Ancient as I have shewn yet that gives it no lawful Authority for this Preamble declares those only are Laws binding to the People that have been Originally establish'd as Laws The Word Originally refers no doubt to our very Primitive Institution which is Common Law or at least to a time so ancient as that the Original cannot be traced out nor shewn and then it shall be presum'd to be the Common Law. Now I have I hope clearly evinced that the very first invention and practice of Dispensations by the Bishop of Rome is not time out of mind nor can the Usage of it here by imitation of the Pope reach up to a Prescription in the judgment of our Law nor by the Rules of it For Sir Edward Cook in his first Instit. Fol. 115. treating of a Prescription and the nature of it says That if there be any sufficient proof of Record or Writing to the contrary albeit it exceed the Memory of any Man living yet it is within the Memory of Man in a legal sence it had its Original since the beginning of the Reign of our King Richard the First that is in the time of King John and King Henry the Third But that which makes it much the stronger is that this Declaration of the King and Parliament against such Dispensations and Laws introduc'd without the King and Peoples Consent does conclude with Negative Words viz. and not otherwise and is exclusive of all other that is that nothing is Law without their Consent And this Statute of Dispensations proceeds further to shew where the true and lawful Power of Granting Dispensations is vested in these words viz. It stands with natural Equity and good Reason that in all Laws humane within this Realm the King and both Houses representing the whole State of the Realm have full Power to Dispense and to Authorize some Person to Dispense with those and all other humane Laws of this Realm and the same Laws to abrogate annull amplifie and diminish as it shall be seen unto the King the Nobles and the Commons of the Realm present in Parliament meet and convenient for the Wealth of the Realm and then it does dispose of the Power of Dispensation in Matters Ecclesiastical to the Archbishop of Canterbury some whereof are to be confirm'd by the King and others that may be good without the King 's confirming And altho' the body or enacting part of this Statute extend only to Causes Ecclesiastical yet the Preamble does reach expresly to all humane Laws This Statute of 25th of Henry the Eighth was made in the time of such a King as we all know by reading our Histories stood highly upon his Prerogative and would never have consented to such a Declaration concerning the Power of Dispensing if it had been a special Prerogative in the Crown and had there
been such a Power in the Crown the King would never have suffered himself to have been depriv'd of it and to have it dispos'd of into other hands by the Parliament and there would have been no need of passing such a Law the King himself alone could easily have transacted all this Matter provided for by this Act of Parliament had he had the sole Power It is true that the Lord Hobart in his Reports Fol. 146. mentioning this Act of Dispensations and taking Notice that by the express words of the Act all Dispensations c. shall be granted in Manner and Form as is prescribed by that Act and not otherwise yet he holds that the King is not thereby restrained but that his Power remains full and perfect as before and that he may still grant Dispensations as King for says he all Acts of Justice and Grace flow from him This and such like Statutes says the Lord Hobart were made to put things into ordinary form and to ease the King of Labour not to deprive him of Power This Opinion of his is grounded upon a presumption that the Power of Dispensing with Laws was always from the beginning a Prerogative inherent in the Crown not examining who was the first Author and the time when it first began and whence we borrowed the use and how there was a time within evident proof of credible and authentick Writers when Dispensations were not in use and so they are within the time of Memory in a Legal Construction and cannot be by Prescription And it is plain every Legal Prerogative must be so by Prescription that is used time out of Memory of Man and whereof there is no sufficient Writing to the contrary But I may appeal to any unbiass'd and equal Judgment upon the reading of this Act especially the Preamble of it whether this Act meerly intended to put things into an ordinary Form and to case the King of Labour or whether it was not to put an absolute stop to the former Practice and does not directly declare and determine where the true Power of Dispensing ever was and therein uses those exclusive words and not otherwise for those words are in the Preamble as well as in the Body of the Act. So that this Construction of the Lord Hobart's That still the King may Dispense alone by himself and that he might have done so by his Prerogative before the making of this Statute and may do so still notwithstanding this 〈◊〉 is directly against the very words of the Statute that says it shall not be otherwise then as the Statute directs and being in the Negative are the stronger And the three Instances or Cases cited by the Lord Hobart all out of Dyer do not come home to the Case of the King 's Granting Dispensations in other manner than the Statute of 25 H. 8. c. 21. hath directed which expresly enacts that they shall not be granted otherwise 1. His first Instance is out of Dyer 211 the Statute of 28 H. 8. c. 15. Appoints that the Commissioners for Tryal of Piracy shall be named by the Lord Chancellor now it happened there was no Lord Chancellor but a Lord Keeper and it was held that he might name the Commissioners by the meaning of this Statute as well as the Lord Chancellor This is under favour but a weak proof of the King's Power or Prerogative of varying from the Directions of an Act of Parliament or dispensing with the Rules prescrib'd by it for it is a meer imaginary variation the Lord Keeper ever having the same Power as the Lord Chancellor and it is not meerly so enacted but declar'd by the Act of 5 Eliz. c. 18. which proves it was Law before And yet some Judges held the Commissioners were not well named but that the Commission was void 2. The second Instance or Authority that the Lord Hobart uses to prove his Assertion that the words and not otherwise in the Statute of Dispensations doe not restrain the King's Power but that he may do otherwise is out of Dyer 225. That Queen Elizabeth might make Sheriffs without the Judges notwithstanding the Stat. of 9 E. 2. this I shall have occasion to examine and speak to more fully hereafter and therefore shall reserve it till then and doubt not to shew it is a mistake and it was done by the Queen in a case of necessity it being in the time of the Plague when the great Officers could not safely meet in the Exchequer as the Statutes require for the chusing of Sheriffs and the Term was held at Hertford and the Report says no Sheriff was named by the Queen for the most part but out of those Names that remained in the Bill for the former Year And the Book only says it was held the Queen might do it by her Prerogative 3. The last Instance that the Lord Hobart gives is out of Dyer 303. b. that the King may grant the Aulnagers Office without a Bill sealed by the Treasurer tho' the Statute of 31 H. 6. c. 5. says the Grant of that Office shall be void without a Bill seal'd by the Treasurer The Resolution of that Point is very obscurely reported but however take it at the strongest this is in a matter that concern'd the King's Revenue and where it may more reasonably be said by the King. May I not do what I will with my own And this Statute may easily be understood to be to put the granting of this Office into an ordinary form and to ease the King of Labour and not to restrain his Power If that may be said in any Case against the express words of a Statute it may be in a Case that concerns meerly his Revenue as this of the Aulneage was In the next place I shall shew that the stream of Dispensations did anciently run in this channel till afterwards it found out another course and that Dispensations with Laws were only in the same hands as had the Legislature that is in the King and Parliament in former times and this answers that Example that hath been used that Almighty God dispens'd with his own Law of the sixth Commandment when he commanded Abraham to sacrifice Isaac God was the great and only Legislator Now the King is not the sole Legislator I shall present you with a very full Precedent and Proof of the Power of Dispensing with Acts of Parliament to be no where else but where the very Legislative Power is And that the Kings have sometimes accepted it from them in some particular cases and for some limitted time and with divers restrictions which is a full acknowment that it belongs only to the Legislative Power to dispence with Laws The Commons for the great Affiance which they repose in the King granted that he by advice of his Lords might make such Toleration touching the Statute of Provisions as to him shall seem good until the next Parliament so as the Statute be repealed in no part thereof
So also as the Commons may disagree thereunto at the next Parliament with this Protestation too that this their Assent being indeed a Novelty these are the very words be taken for no example This is granted with abundance of caution and jealousie and proves it is not ancient The Commons do agree to the Power granted to the King for the Moderation of the Statutes touching Provisors in the last Parliament beseeching the King that the same may not license any Cardinal or Stranger to enjoy any Benefice within the Realm It was enacted by the Lords and Commons that Tydeman late Abbot of Beaulew and Elect of Landaf by the Pope's provision should enjoy the same Bishoprick notwithstanding any Act so always as this be taken for no example That the sale of Tin may be at Lostwithiel in Cornwal and shall not continue at Calais Notwithstanding the Council may grant License to Merchants to carry the same Tin to what parts they will as to them shall seem good Here the Power of Dispensing is delegated to the Council Upon the request of the Commons the King promiseth that he will not from thenceforth dispence with the Statute of Provisions to Benefices This implies that the King had practis'd it and we know who began the practice and who taught it to others and this Record shews it was without consent and was a cause of complaint and the King promises to reform it for the future But what signifies a Promise where a Law and an Oath is too weak to secure it this Promise doth not confer a new Right but is to reform an unjust Practice I shall use one Argument more against this exercise of the Power of Dispensing with Acts of Parliament as it hath of late been practis'd and that Argument shall be rais'd from the great Inconvenience and Mischief that will ensue upon it to the Kingdom it may occasion the infrequency of Parliaments by taking much of their power out of their hands Laws are many times made but probationers and temporary to the end that if upon experience of them they be found to be too severe or strict and to sit hard upon any persons that the Parliament at their next meeting may moderate or relax the severity or inconvenience that may arise by them But if there be another way allowed for the doing of this Work there will be the less need of a Parliament and so other Work that requires also their meeting may remain unremedied If we consider how frequently the Parliament ought to meet and and how often they did anciently meet we shall easily be convinc'd that the relaxing of a Law or giving remedy where the Law was upon experience found inconvenient was a work properly belonging unto them and there was no need of resorting to any other help for who should cure or reform a Law if any thing were amiss in it but the Law-makers See the Statute of 6 H. 8. c. 18. the Book of Statutes at large concerning Bristol Our Saxon King Alfred and his Wise Men that is the great Council of the Kingdom ordained that a Parliament twice a Year and oftner in time of Peace should meet in London Thus says that ancient Book stiled The Mirrour of Justices c. 1. sect 3. pag. 10. by 4 E. 3. c. 14. It is accorded that a Parliament shall be holden every Year once or more often if need be this does not abrogate not alter King Alfred's Law. By 36 E. 3. c. 10. many Laws had passed in that Parliament of 36 E. 3. which are there called Articles as anciently our Statutes were drawn into certain Articles and so passed as being Articles of Agreement betwixt the King and his Subjects as I had occasion to observe in the beginning of my Discourse and this Statute of 36 E. 3. provides that for maintenance of the said Articles and Statutes and redress of divers Mischiefs and Grievances which daily happen a Parliament shall be holden every Year as another time was ordained by a Statute referring to the Statute of the Fourth of this King. The Act of 16 Car. 2. c. 1. for repeal of the Triennial Act made 16 Car. 1. in the last Paragraph recites that by the ancient Laws and Statutes of this Realm made in the Reign of King Edward the Third Parliaments are to be held very often and this Act of 16 Car. 2. makes a new provision to the end as the words are there may be a frequent calling assembling and holding of Parliaments once in three Years at the least Now let us enquire what the proper Work of a Parliament is which the said Statute of 36 E. 3. mentions in part viz. for maintenance of the Articles and Statutes and redress of Mischiefs and Grievances that daily happen as that Statute recites Sir Tho. Smith who was principal Secretary of State in his Treatise de Republica Administratione Anglorum L. 2. c. 2. fol. 50 51. says this of the Parliament In Comitiis Parliamentariis posita est omnis augustae Absolutaeque potestat is vis veteres leges jubent esse irritas novas inducunt praesentibus modum constituunt There is the true dispensing power Incerti juris controversias Dirimunt Bracton writes of this High Court Habet Rex Curiam suam in concilio suo in Parliamentis suis ubi terminatoe sunt dubitationes Judiciorum novis injuriis emersis nova constituuntur remedia The Mirrour of Justices c. 1. pag. 9. says that Parliaments were instituted to hear and determine the Complaints of the wrongful Acts of those against whom the Subject otherwise could not have common Justice that is against great and powerful Delinquents Nihil prodest says Bracton Jura concedere nisi sit qui Jura tueatur So that there is need of a frequent resort to be had to the Law-mamakers not only to resolve difficulties of Judgments but to keep the power of Interpretation within its due bounds and the Law hath taken care for frequency of Parliaments Sir Francis Bacon in his Advancement of Learning gives this excellent Advice to Law-makers and to those to whom it belongs to defend the Laws Let not says he Praetorian Courts speaking of Courts of Equity have power to decree against express Statutes under pretence of Equity for says he if this should be permitted a Law interpreter that is a Judge would become a Law-maker and all Matters should depend upon Arbitrament that is upon an Arbitrary Power And Arbitrament would encroach upon and at last swallow up Law. The power of extending or supplying or moderating Laws little differs says he from the power of making them Courts of Equity sometimes under the pretence of mitigating the Rigor of the Laws and such is the Power of Dispensing relax the Strength and Sinews of Laws by drawing all to Arbitraments he was well able to judge of this having been Lord Chancelor And it is his 46th Aphorism That is the best Law which gives the least
a Prescription nor is there any arguing a Paritate rationis in such Cases and which have their force meerly from ancient and constant Usage It is a Rule at Common Law Ubi eadem est ratio ibi idem Jus But this Rule doth not hold in Customs and Prescriptions In the Case of Bayly and Stevens in Croke Jac. 1. fol. 198 it was held per Curiam that where Lands in Borough English descend to the youngest Son and he dies without Issue that the Land in such Case shall not go to the younger Brother without a particular Custom but the elder Brother shall have it for the usage had been in the one but not in the other Case yet these two Cases are very near of kin Now this Prerogative of dispensing with Acts of Parliament in the original use and exercise of it was but in very few Cases and those which more directly concern'd the King himself immediately in his Revenue or the like which were Cases of no great Consequence and such wherein the Law-Makers in making their Laws might be easily understood not to intend to abridge the King of his Power but to ease him rather of Labour and to put things into an ordinary course which yet the King might depart from if he were so minded and if he did accordingly signifie his Pleasure by granting an express Non Obstante the Act of Parliament to the contrary and making particular mention of the Act Unusquisque renunciare potest Juri pro se introducto Or in Cases where there is no disability impos'd upon a Person by the Act but only a pecuniary Penalty given to the King and forfeited by the Subject transgressing the Act where the King is Creditor poenoe it seems more reasonable that the King may dispense with the Penalty that will be due to himself And these and such like are the only Instances given in that great Case of 2 H. 7. But to dispense with an Act of Parliament made in a Case of the highest concernment to the Publick that can be wherein Religion and the Government are so deeply concern'd and where the King himself and the Parliament have thought fit to disable any Person to do to the contrary and so pronounc'd it and have put an incapacity upon Persons and adjudged the thing done to the contrary void this hath been of latter times and but of late found out and practis'd and is not warranted by any Prescription I shall cite some Resolutions to this purpose that the King cannot dispense with Disabilities and Incapacities imposed upon any Person by Act of Parliament The Lord Hobart's Reports fol. 75. in the Case of the King against the Bishop of Norwich Res. That if an Incumbent were guilty of Symony in obtaining a Benefice he was made incapable of that Benefice for ever by the words of the Statute of 31 Eliz. c. 6. Paragr 5. And the Case of Sir Arthur Ingram was cited who bought the Office of Cofferer he was holden by Egerton Lord Chancellor and Coke Chief Justice uncapable of that Office by force of the Statute of 5 E. 6. c. 16. tho' he had a Non Obstante and the reason there given is in these words For the Person being disabled by the Statute could not be enabled by the King And yet the Office of Cofferer is a special Service about the King's Person and his Treasure The Lord Chief Justice Vaughan in his Reports of the Case of Thomas and Sorrel fol. 354 355. gives this for the reason why the King cannot dispense with a Man to buy an Office contrary to the Statute of E. 6. nor with one Simoniacally presented to hold that Living or to be at any time after presented to it nor with any of the House of Commons not to take the Oath of Allegiance according to the Statute of 7 Jac. 1. c. 6. Because says he the Persons were made incapable to hold such Office or Living and a Person incapable is a dead Person and no Person at all to that wherein he is incapable And a Member of the House of Commons is by 7 Jac. Persona inhabilis 1. Inst. fol. 120. In the Case of the Simonist Sir E. C. says The Act so binds the King as that he cannot present him that the Law hath disabled for ever after to be presented to that Church The words of the Act be He shall be from thenceforth adjudged a disabled Person in Law to have or enjoy the same Benefice And the Party being disabled by the Act says Sir E. C. cannot be dispens'd withal by any Grant by a Non Obstante as it may be where any thing is prohibited sub modo as upon a Penalty given to the King. The Case of Sir John Bennet does not at all contradict these Authorities It is Croke Car. 55. Sir John Bennet by Sentence in the Star-Chamber was made incapable of any Office of Judicature for Bribery Res. by all the Judges and Barons that by the King's Pardon all Inabilities are discharg'd because the Sentence could not take the Office from him being Freehold over which the Court had no Power So that after so often declaring by several Acts of Parliament Grants and Patents made contrary to their Acts to be void and all Dispensations and Non Obstante's to the contrary of the Laws made by them to be void and inflicting Penalties upon such as should obtain those Grants and Non Obstante's or make use of them as appears by a multitude of Acts and all these too weak and all in vain by the Judges allowance of these Non Obstante's the Parliament had no other sence against these Non Obstante's but to fix a disability in the Persons and to make them uncapable of taking the benefit of such Grants and this hath held good till now but now they break through this too And as I observ'd in the Pope's Exercise of his Power of Dispensing that it was used with some moderation at first in Cases that seem'd to be of great necessity only but at last by degrees it grew to be intolerable and unlimited So the like may be observ'd in the use of this Prerogative 3. Instit. fol. 236 in the Chapter of Pardons by divers Acts of Parliament the King's Power of Granting Charters of Pardon hath been restrained as by 2 E. 3. c. 2. 10 E. 3. c. 2. 14 E. 3. c. 14. 13 R. 2 Stat. 2. c. 1. these are ancient Statutes It hath been conceiv'd says Sir E. C. which we will not question says he that the King may dispense with these Laws by a Non Obstante Yet Sir E. C. there declares That he found not any such Clauses of Non Oâ—stante to dispense with any of these Statutes but of late times This shews that it is a growing mischief and had not been anciently used as it ought to have been to make it a good Prescription and Prerogative I shall now examine the Authorities and Cases that are cited in defence
delay Common Right and tho' such Commandments do come the Justices shall not therefore leave to do right in any point Grotius ubi supra 117. Antiochus the third sent a Rescript to the Magistrates that they should not Obey him in case he should command any thing against Law. And Constantine published the like That Orphans and Widows be not constrained to come to Court for Justice no not if the Emperor's Rescript be shewed In the story of Daniel we read that King Darius signed the Writing and the Decree which indeed was but a snare laid for Daniel and Daniel had fallen into the snare The King was his friend but could neither dispence with him nor pardon him tho' he were sore displeased with himself for signing the Decree And the King set his heart on Daniel to deliver him and he laboured says the History an whole day till the going down of the Sun to deliver him he wanted such Judges as Cambyses had to find out an Evasion But the King himself sealed the stone that was laid upon the mouth of the Den with his own Signet and with the Signet of the Lords that the purpose might not be changed concerning Daniel Nihil opus est says a learned Author writing of the Government of England Licentiam dominandi in Rege Coerceri quoniam quicquid in administranda rerum summa vel contra Patriae leges vel minus ex populi commodo gestum fuerit Id omne Ministris Luendum rejicitur Adeo ut non ab adulatione sed ab aequitate summa fluxerit Notum Axioma apud Nostrates Rex Nunquam potest Errare aut cuiquam injuriam facere Quippe in Administros Conciliarios quorum est Admonere Principem iniqua volenti denegare operam aut officio renunciare potiusquam contra Leges quicquam jubenti parere tam culpa omnis quam paena derivari solet debet And we have seen Examples of such in our times many that have left good Places rather than act against their Judgments There is a rare Example of this in the French History Lewis the Eleventh King of France at the Pope's importunity had signed a Concordate for setting aside the Pragmatical Sanction which was made in defence of the Liberties of the Gallican Church and the King had undertaken to the Pope that his Parliaments should approve of what he had done and the King sent a Command to the Parliaments accordingly and required them to give a punctual obedience to his Order The King's Advocate Johannes Romanus argued stoutly against it and being threatned to be turned out of his Place for his pains he said The King had freely bestowed that Office on him and he would discharge it faithfully as long as the King thought fit to continue him in it and should be ready to lay it down whenever it pleased the King But he would suffer all things rather then do any thing against his Conscience or the King's Honour and the good of the Kingdom and out he went. It will be admitted by those that argue for the Prerogative of Dispensing that tho' the King without the Parliament cannot dissolve nor repeal no nor so much as suspend the Law totally tho' but for a time but he may dispence with it as to some particular persons and for some limited time and so the Law will still remain in force against all others Those that will argue thus do yet hold that the King is the sole Judge who are to be dispensed with so that he is not limited to any number nor to any time so that tho' he may not in the gross dispence with the Law yet he does the same thing by retail which comes all to one or it is in his Royal Will and Pleasure to do so We are nothing beholding to the Judges if the King uses his Prerogative with moderation According to that sort of Argument that is called Inductio which is a particularibus ad Universalia progressus He that can dispence with A B C and so with the 24 Letters one by one does in truth dispence with the whole Alphabet but he must not do it Uno Ictu And we find it by Experience What signifie those several Acts of Parliament that forbid a Judge of Assize to Execute that Office in the County where he was born or dwells they are easily and daily dispens'd with How many Acts have been made against pardoning of Murder and to make void such Pardons and what fruit have they had Let us hear a learned Judge plainly speaking his experience and his mind in it Stamford in his Pleas of the Crown fol. 101. says that tho' there are words to null and make void these Charters of Pardon yet by putting into the Charters of Pardon these words viz. Non Obstante aliquo Statuto in contrarium Edito the force of these Statutes is taken away and not only of these says he but also of all others in which this Clause of Non obstante is put and it is put says he in every Letters Patents And fol. 102. he says that the Statute of 13 R. 2. Stat. 2. c. 1. and the rest of the Statutes to the same effect have always been destroy'd by that Clause of Non obstante and so false Suggestions have continued says he to this day without redress and abound from one day to another to the great detriment of the Publick Weal and do not cease till Princes have more regard what Charters they pass and he might have added till the King's Attorney and Council at Law shall have more Fidelity and Courage I hear that in justification of such a Dispensation as this it was said in the Argument of the Case of Sir Edward Hales in the Court of King's-Bench That there is no Law whatever but may be dispensed with by the Supreme Law-giver as the Laws of God may be dispensed with by God himself as appears by God's command to Abraham to sacrifice his Son Isaac So likewise may the Laws of Man be dispens'd with by the Supreme Legislator I fully agree to this and have already argued upon this ground That the Legislators and no other can dispence with their own Laws and I have given several Instances and Examples wherein it was so practised that is by King and Parliament But does this justifie the present Dispensation now in dispute I agree the King hath a great and most eminent part in the Legislature and in the passing of Laws it is he that quickens the Embrio and first gives it Life but under favour and with all due Reverence to the King I may affirm it That the King hath not the sole Legislature such as Almighty God hath over his Creatures but the whole Kingdom hath a share in that Power as I have fully proved as well as the King. I would cite one Case not so much to prove what I have said herein but rather to illustrate it It was a Case
necessitate pensata Upon the word Concessa I would gladly be satisfy'd when or by whom that Power was ever granted to the King where shall we find that Grant It is clear that whoever hath the entire Power of making a Law may justly dispense with that Law. And therefore Almighty God being the sole and supream Law-giver might dispense even with the Moral Law as he did with the sixth Commandment when he commanded Abraham to sacrifice his Son Isaac and with the eighth Commandment when he commanded the Israelites to borrow the Jewels of the Aegyptians and to go away without restoring of them But it stands not with reason that he who hath but a share with others in the making of a Law as the King hath no more should have the power by himself alone to dispense with the Law unless that power were expresly intrusted with him by the rest of the Law-makers as sometimes hath been done Sir Edward Coke in his seventh Report in the Case of Paenal Statates fol. 36. towards the lower end does affirm that this Dispensing Power is committed to the King By All his Subiects So that it is not claimed Jure Divino but by Grant from the People But where to find any such Grant we know not I have as I conceive made it appear in my larger Argument p. 14. that the first Invention of Dispensations with Laws began by the Pope about the time of Innocent the Third and by our King Henry the Third in imitation and by encouragement from the Pope so that it was not by the Grant of the People but ever exclaimed against by all good men and generally by all the people and ever fenced against by a multitude of Acts of Parliament It is true the Dispensing with Laws hath ever since been practised and they began at first here in England to be used only in Cases where the King alone was concern'd in Statutes made for his own profit wherein he might have done what he pleas'd But it is but of latter times that they have been stretched to Cases that concern the whole Realm See my Argument fol. 13. Hence it evidently appears it cannot be a legal Prerogative in the King for that must ever be by Prescription and restrain'd to those Cases that have been used time immemorial and must not be extended to new Cases Now there hath been no such usage as will warrant the Dispensing with such an Act of Parliament as is now before us that of 25 Car. 2. c. 2. The Chief Justice Herbert from the Definition before recited and those two Authorities of Sir Edward Coke in his Case of Monopolies and that other of Penal Statutes frames an Argument to prove that the Dispensation granted to Sir Edward Hales was good in Law. Because a Dispensation is properly and only in case of a Malum Prohibitum he thence insers that the King can dispense in all Cases of Mala Prohibita Which is a wrong Inference and that which Logicians call Fallacia à dicto secundum quid ad dictum simpliciter Because he can dispense with some that therefore he can dispense with all is no good Consequence It appears by the late Chief Justice Vaughan's Reports in the Case of Thomas and Sorrel so often cited by the Chief Justice Vaughan's Rep. fol. 333. the fourth Paragraph that his Opinion is That the King cannot dispense with every Malum Prohibitum and he gives many Instances of such Mala Prohibita that are not dispensable fol. 342 and 334. parag 4. Therefore the Lord Chief Justice Herbert should as I conceive regularly first have given us the distinction of Mala Prohibita into such as are dispensable and such as are not dispensable and then have shewn that the Dispensation granted to Sir Edward Hales fell under the first part but that learned Reporter the chief Justice Vaughan so often cited by our now Lord Chief Justice in the aforesaid Case of Thomas and Sorrell fol. 332. the last Paragraph save one quarrels with the very distinction of Malum Prohibitum and Malum in se and says it is confounding From whence I would observe and from the whole Report in Thomas and and Sorrell's Case that the Notion of Dispensation is as yet but crude and undigested and not fully shaped and formed by the Judges The Pope was the Inventer of it Our Kings have borrowed it from them And the Judges from time to time have nursed and dressed it up and given it countenance And it is still upon the growth and encroaching till it hath almost subverted all Law and made the Regal Power Absolute if not Dissolute I must agree that our Books of late have run much upon a Distinction viz. Where the breach of a Penal Statute is to the particular damage of any person for which such person may have his Action against the Breaker of that Law there tho' it be but Malum Prohibitum yet the King cannot dispense with that Penal Law according to the Rule in Bracton Rex non potest gratiam facere cum injuriâ damno alterius As for instance There are several Statutes that prohibit one man from maintaining another's Suit though in a just Cause See Poulton de pace Regis Regni in his Chapt. of Maintenance fol. 55. Now it is held that the King cannot dispense with those Laws because it would be to the prejudice and damage of that particular person against whom the Suit is so maintain'd by another for there can be no maintenance but it is to the wrong of a particular person So of carrying a Distress out of the Hundred But there are many other Penal Laws where by the transgressing of them no Subject can have any particular damage and therefore no particular Action for the breach of them As upon the Statute that prohibits the Transportation of Wool under a Penalty By the breach of this Law that is by the Exportation of Wool no one particular man hath any damage more than every other man hath but it is only against the Publick Good. And the breach of such a Penal Law is punishable only at the King's Suit by Indictment or Presentment And the like where such a Penal Statute gives an Action Popular to him that will sue for the Penalty who hath no right to it more than any other till his Suit be commenced In these Cases it is commonly held that the King may dispense with such Penal Statutes as to some particular persons and for some limitted time whereof they make the King the sole Judge because as the reason is given in the Chief Justice Vaughan's Reports fol. 344. parag 2. Such offence wrongs none but the King. This is now the common receiv'd Opinion and Distinction And the breach of such kind of Penal Statutes are said to be only the King's damage in his publick capacity as Supream Governour and wronging none but himself Lord Vaugh. Rep. 342. parag 3. But if we will narrowly search into this
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
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
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
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
evident that the King had no such Power or Prerogative of continuing Sheriffs in their Offices longer than a Year For under favour the Making of Sheriffs doth not nor never did belong to the King neither at the Common Law nor by any Act of Parliament so that all these Opinions and Resolutions are built upon a sandy Foundation and have but debile fundamentum and they take that for granted which is not a truth The Election of Sheriffs at the Common Law even from the very first Constitution of the Kingdom and by the Original Institution of the Government was in the Freeholders in the several Counties ever since there was any such Office as a Sheriff and ever since the Kingdom hath been divided into Shires that is in the time of the Saxons from whom we derive most of our Common Law and long after their time in the time of the Normans till being neglected by the Freeholders it came at length by an Act of Parliament made within the legal time of Memory to be taken from the Freeholders and the Power of Naming and Chusing Sheriffs every Year lodged in the hands of certain great Officers of State and so it continues to this day but neither is nor never was in the King. Mr. Lambard in his Book de Priscis Anglorum Legibus in his Lemma de Heretochiis fol. 147. says that those Heretochii were Ductores exercitus Here signifying an Army in the Saxon Tongue The same as in the Dialect of this present Age may be called Lord-Lieutenants or Deputy-Lieutenants The Law of King Edward which I take to be the Confessor speaks of these Heretochii in these words Isti vero viri Eligebantur per Commune Concilium pro Communi utilitate regni per provincias Patrias Universas per singulos Comitatus in pleno Folkmote sicut Vice-Comites Provinciarum Comitatuum Eligi debent This Law mentions this Election as an Use and Custom If the King did not make the Sheriff he could not continue him Sheriff if he could not make him for a Year he could not grant him the Office for longer than a Year the Sheriff had his Authority and Office from the Election not by Commission or Patent and that but for a Year Sir Edward Coke in his Second Institutes in his Exposition of the Statute of Westminster 1. Cap. 10. concerning the Election of the Coroners by the Freeholders which ever was so and so still continues says there is the same reason for Election of Sheriffs and so says he it anciently was by Writ directed to the Coroners In like manner were the Conservators of the Peace chosen in whose place the Justices of the Peace now succeed and so the Verderors of the Forrest are to this day These were great and high Liberties and did belong to the Freeholders from all antiquity and are strong Arguments to confute those late Authors that will by no means allow of a limitted Government but leave us under an Absolute and Arbitrary Power and who call our Laws and Liberties but the Concessions and Condescensions from the Regal and Absolute Power Sir Edward Coke discourses largely of these Elections in his Exposition of the Statute of Articuli super Chartas in his Second Institutes or Magna Charta fol. 558. By this Statute it is said the King hath granted to his People that they have the Election of their Sheriff in every County where the Sheriff is not of Fee if they will. Sir Edward Coke says by this Act that ancient Right the People that is the Freeholders had was restor'd to them and the words if they will import that they formerly had it but neglected it By a Statute made in the next King's Reign viz. 9 E. 2. styled The Statute of Sheriffs upon pretence that insufficient persons were commonly chosen for Sheriffs by that Act it is ordained that from thenceforth the Sheriffs shall be assigned by the Chancellor Treasurer Barons of the Exchequar and by the Justices And by the Statute of 14 E. 3. c. 7. some change is made of the persons that are to have the Election and the Day and Place of such Assigning of Sheriffs is prefix'd viz. yearly in the morrow of All-Souls and in the Exchequer By the Statute of 12 R. 2. c. 2. the Assigning of the Sheriff is put into the hands of more great Officers who are to be sworn to execute this Trust faithfully but it is not vested in the King all this while nor never was It is true that out of Reverence to the King these great Officers who had the Assigning of Sheriffs did afterwards use to name three persons out of which number they left it to the King to chuse one for every Shire But this was more out of deference to the King than out of any strict Obligation so to do and the Election made by the King was in Law to be accounted an Assignment by these great Officers Nor could the King chuse any other for Sheriff than one of those three so Assigned by those great Officers tho' it is sometimes otherwise practis'd And this hath been a Resolution of all the Judges of England and is mentioned in Sir Coke's Second Institutes fol. 559. it was in the 34th Year of Henry the Sixth and it is in these words viz. That the King did an Error when he made another person Sheriff of Lincolnshire then was chosen and presented to him by those great Officers after the effect of the Statute So that the right of Electing Sheriffs by those great Officers we see continued so lately as the latter end of King Henry the Sixth and I know of no Law since that hath alter'd it therefore we may conclude it is no Prerogative in the King. And we may further observe what plain Language all the Judges used in those days as to tell the King and the Lords of the Council that the King had erred in what he had done I observe this the rather that it may be some excuse to me for the plain Language I am forced to use in the Arguing upon this Subject The Lawyers are not always Courtiers nor will the Subject-matter bear Complements and Courtship Ornari res ipsa negat contenta doceri I cannot reconcile this Resolution of the twelve Judges given in the time of King Henry ths Sixth with that Opinion that is deliver'd in the Lord Dyer's Reports fol. 225. b. and it is but an Opinion 5 6 of Queen Elizabeth In the time of the Plague the Sheriffs were named and made without assembling the Judges ad Crastinum Animarum at the Exchequer according to the common usage but for the most part none was made but one of the two that remain'd in the Bill the last Year Tho' it was held says the Report that the Queen by her Prerogative might make a Sheriff without such Election by a Non Obstante aliquo Statuto in contrarium which crosses the Resolution I
now mentioned It is but an Opinion against a Solemn Resolution of all the twelve Judges I find that some who had transgress'd that Act of 23 H. 6. and had continued above one Year in that Office of Sheriff soon after the making of that Act did not think themselves secure against the Penalty of that Act by any Non obstante from the King but procur'd an Act of Parliament to indempnifie them for what they had done for by another Act made the 28th of the same King Henry the Sixth it is ordain'd that the Sheriffs for the Year then last past should be quit and discharged against the King and his People of the Penalties of the 200 l. which they incurr'd by the Statute of 23 H. 6. by Exercising the Office of Sheriff longer than a Year from the day next after the day of all All-Souls on which day by the Statute a new Election was to have been made I have one great Authority more and that is of an Act of Parliament too which in my judgment clearly proves against this Resolution of the twelve Judges in the time of 2 H. 7. that the King had no such Prerogative to dispence with the Sheriff's continuing in his Office longer then a Year But that the only dispensing Power was in the King and Parliament as I have affirm'd and in the King when any Special Act of Parliament shall for a time limitted enable him so to dispence And it is an Act in the time of a wise and powerful King who would not lose his Prerogative where he had right to it It is the Statute of 9 H. 5. c. 5. in the Statutes at large this Statute recites the Statute of 14 E. 3. whereby it was ordain'd that no Sheriff should continue in his Office above a Year And it recites further that whereas at the making of that Statute there were divers valiant and sufficient persons I suppose it is ill translated valiant and it should have been men of value in every County of England to exercise the said Office well towards the King and his People But by reason of divers Pestilences within the Realm and Wars without the Realm there was not now such sufficiency of such persons It is therefore ordained that the King by Authority of this Parliament of 9 H. 5. may make the Sheriffs through the Realm at his will until the end of four Years notwithstanding the said Statute made 14 E. 3. or any other Statute or Ordinance made to the contrary Here the King is entrusted with the Power and that but for a short time in the very Case of continuing Sheriffs in their Offices longer than a Year and that in a case of great and absolute necessity and this by a Special Act of Parliament which plainly shews he could not do it by any Prerogative he had of dispensing for then he would never have taken it under an Act of Parliament What ground therefore the Judges had in the second Year of Henry the Seventh to adjudge it to be a Prerogative in that King I cannot see and that Resolution is the leading Case to all the Opinions that have been delivered in the Point since that time and the Opinions still justifie themselves by that one first Resolve and cite that for their great Authority That Opinion seems to be delivered upon a sudden Question put to the Judges by the King's Council not argued nor deliberated on nor upon any Case that came Judicially before them and the Judges there take notice only of two ancient Statutes viz. 28 E. 3. c. 7. 42 E. 3. c. 9. both which barely forbid the Sheriffs to continue longer than a Year in their Office but no Penalty is imposed and the Earl of Northumberland's Case had a Non Obstante in it only to these two Statutes as appears by the Abridgement of that Case by Patent's Case 109. So that they did but ad pauca respicere de facili pronunciare But they do not take the least notice of the Statute of 23 H. 6. c. 8. which makes the disability nor do the Judges in that Case give that reason for their Judgment as Sir E. C. hath since found out to justifie it viz. His Prerogative inseparable c. Something may be observed from the time when that strange Resolution pass'd Judicis Officium est ut res ita tempora rerum querere It was in 2 Henry the Seventh in the beginning of the Reign of that King who stood high upon his Title and Power if we may believe a late Historian Mr. Buck. in his History of the Life and Reign of Richard the Third who in his Second Book fol. 54. discourses likewise of King Henry the Seventh and his Title to the Crown says of him That he seemed to wave all other Titles and stuck to that of his Sword and Conquest and at his Coronation he caused Proclamation to be made with these Titles Henricus Rex Anglioe Jure divino Jure humano June belli c. Which yet the Barons could not agree to tho' the King peremptorily avowed he might justly assume it having as a Conquerour entred the Land fought for the Crown and won it The Barons answered says the Historian as peremptorily That he was beholding to them both for his Landing and Victory But the more they opposed it the more he insisted upon it Now that King that made his Title by Conquest might carve out to himself what Prerogatives he pleased And who durst dispute it with him And this probably might have some influence upon that Resolution of the Judges being so early after his Claim viz. 2 H. 7. But I find Sir E Coke a Chief Justice of great Learning and of as great Integrity taking up the same Opinion It is in the Reports that go by the Name of Sir Coke's 12 Rep. fol. 18. No Act says he can bind the King from any Prerogative which is sole and inseparable to his Person but that he may dispense with it by a Non Obstante as a Soveraign Power to Command any of his Subjects to serve him for the Publick-weal and he instances in that of a Sheriff and quotes the Resolution of the Judges of 2 H. 7. and urges that of Judges of Assize that they may go Judges of Assize in the Counties where they were born or did inhabit if the King dispense with it by a special Non Obstante But he gives another instance which I presume none in these days will subscribe to and if he mistook himself in this instance he may be supposed to mistake and err in all the rest Purveyance says he for the King and his Houshold is incident solely and inseparably to the Person of the King And for this Cause the Act of Parliament of Henry the Third de tallagio non concedendo which barrs the King wholly of Purveyance is says he void If this be Law what a Case are the Subjects in that have given a
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
in Hill. 11 Jac. B. R. Dominus Rex and Allen against Tooly in the Second Part of Bulstrode's Reports 186 to 191. in an Information brought upon the Statute of 5 Eliz. for using the Trade of an Upholsterer in which he had not served as an Apprentice Seven Years The Defendant pleaded That he was a Freeman of London and that by the Custom of London a Freeman might use any Trade and he alledged that the Custom was confirmed per Regem in Parliamento It was holden first that there can be no good Act of Parliament without the three Consents viz. Of the King Lords and Commons 2. That tho' divers Acts of Parliament do not specifie these Three Assents but only mention the King as Dominus Rex Statuit and as it is in the Prince's Case Dominus Rex de Communi Concilio Statuit and the like Yet when the Party will Plead he ought to Plead it according to Law and to set forth all the Assents that is of the King Lords and Commons and this was the Opinion of the whole Court. Now Pleading is an exact setting forth of the Truth We are not to raise Arguments from Forms of Speaking but rather from exact Pleading and the Resolutions of Judges And tho' Magna Charta in the stile seems to be spoken by K. H. 3. as by the word concessimus yet the Act of 15 E. 3. c. 1. recites that it was made a Law by the King Lords and Commons and that what is said to be granted was but their former Right Lambert's Archion 267 c. I hear that in speaking to the Case of Sir Edward Hales it was observed that by this Act of 25 Car. 2. there is no incapacity or disability at the first and upon the admission to the Office put upon any Person from taking of an Office but that he is well admitted to it and the Grant is good and that time is given to take the Tests and if by the times given he fail to take them then he is to be disabled and the Grants are to become void but not before Like a Condition subsequent that defeats the Estate which yet was well vested and then before the Grant is defeated and the Party become disabled the King's Dispensation steps in and prevents the Penalty and Disability And herein it was said it differs from the Case of Symony and buying of Offices where the Interest never vested but the Person was first disabled There is indeed a difference but none that is material for it is all one whether the Party be disabled to take or whether having well taken and been well admitted he is afterward disabled to hold and retain by not performing the Condition For when he is first admitted it is sub modo and under a Condition that if he fail to perform what the Law requires his Office shall be void Another Argument as I hear it reported was rais'd from the King 's being a Soveraign Prince and from thence it was inferred that he might dispense with Laws that are Poenal upon necessity whereof he is the sole Judge The ground of this Argument namely That the King is a Soveraign Prince if it serve for the Point in question it may also extend a great way further then to this question we have before us it is hard to limit the extent of it it seems to speak that we must obey without Reserve The word Soveraign is French and in Latin is Supremus id est qui in alios potestatem habet The Correlate whereof is Subditus or a Subject and is attributed frequently to some sorts of Subjects especially to the Heads or Superiours of Religious Orders But among us tho' now frequently used in our humble Addresses to the King or in our reverend mention of him yet we find it very rarely if ever used in our ancient Acts of Parliament or in our Law Books I find no mention of the very word among the many Attributes and Titles ascribed to Kings and Princes in Mr. Selden's Titles of Honour He hath that which is Synonimous as Supream Monarch as it signifies in opposition or in distinction to Princes that are subordinate and feudatory such as Tacitus speaks of that the Romans when their Government was Popular had instrumenta servitutis Reges But properly he is a King that is a Soveraign and hath no Superiour upon Earth According to Martial Rex est qui Regem Maxime non habeat And such we freely and cheerfully acknowledge the King to be and the best and most of his Subjects do swear that he is the only Supream Governour of this Realm and of all other his Dominions as well in all Spiritual or Ecclesiastical as Temporal Causes and that no Foreign Prince hath any Power within this Realm And I wish that all the rest of his Subjects would heartily take this Oath but this among others is that which Sir Hales's Dispensation extends to Yet how from hence it can be argued that the King can dispense with his Laws I do not see I mean Laws of the same nature as that we have now before us Therefore those that used this Argument surely meant the word of Soveraign in another sence viz. Absolute Solutus a legibus It they mean by Soveraign a Prince that is absolute and solutus a legibus and they must understand it so or else I do not see how it is pertinent to the present Argument this is of a mighty Consequence and ought to have been well considered before it had been used I find the word in this sence as I take it propounded in an addition or saving to the Petition of Right 3 Car. 1. viz. Not to infringe Soveraign Power But it was not liked and upon Reasons given at a Conserence those that did propound it were satisfied to lay it aside It may be read in the Memorials of the English Affairs fol. 10. If the word Soveraign be meant in this sence it is oppos'd by all our ancient Authors Judges and others by plain and express Language whose very Writings I have before cited and I will but only touch upon them again Fleta says Superiorem non habet Rex in Regno nisi Deum Legem per Legem factus est Rex This fully expounds the word Sovereign Both Fleta and Bract. and Sir Gilbert Thornton who was Chief Justice in Edw. the First 's time take notice of that Jus Caesareum or Lex Regia as it is called by the Civilians Nec obstat quod dicitur quod Principi placet Legis habet vigorem For it never was received in England but in a restrained sence And with this agrees the ancient Coronation Oath That the King shall hold the Laws and Customs of the Realm which the People have chosen But King H. 8. with his own hand corrected the old Oath to the effect following viz. That he shall hold the Laws and Customs of the Realm not prejudicial
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
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
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