seen and clearly otherwise yet he thinks my Lord Coke will bear him out and to this purpose he cites two Places one where he supposes that the Lord Coke not onely authorizes this sense of the Case but asserts the Prerogative in much higher Terms than they would presume to do and by the second he would have it believ'd that if the Lord Coke be a faithful Reporter all the Judges of England took that Case in the same sense The first is the Case of Customs 24 Eliz. which is pregnant with many Objections against its being of any force in this Case 1. The Book is of suspected Authority being printed in the late Times and what the Lord Coke never own'd or thought fit to print in his Life-time 2. This comes foisted in among Cases in the time of King James without any parallel Case which might occasion the placing of it there 3. It was when the Lord Coke was but a young Reporter it being ten Years before he was King's Sollicitor 4. It is not onely no Point in question relating to the Case where 't is cited and so extrajudicial but wholly foreign to it For the Question was Whether Goods sold before they were landed were to pay Custom within the Statute 1 Eliz. c. 11. Wherefore being barely a Memorandum of a young Reporter no way occasioned by what went before it cannot possibly have any weight 5. The fancy'd Reason there given why the King may dispense with the Statute of Sheriffs is none at all for whereas it says that the King has a Sovereign Power to command any af his Subjects to serve him for the Publick Weal and this solely and inseparably annex'd to his Person and this Royal Power cannot be restrained by any Act of Parliament there is no Authority cited for this but the Case 2 H. 7. which as appears to any body that reads it neither has that Reason mention'd so much as by any one Judge nor in the least goes upon the Point of the Prerogative Besides if the King can command any Subject to serve him for the Publick Weal either he is to be Judge or the Laws If the latter then no Person not qualified by Law is oblig'd to act nor tho' qualified to do any thing forbid by the Laws If the former as the Words imply then the King's Commands may be pleaded to justifie any ill Minister who has rendred himself obnoxious to the Laws But that this cannot be is sufficiently evinc'd by necessary Examples in all Ages And this by the way may shew how false as well as pernicious that Doctrine is which tells us That 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the New Testament always signifies the Authority of a Person not of a Law Or as another has it to the same purpose By Higher Powers it is evident we are to understand the Persons of Sovereign Princes or Governours not the Laws and Constitutions as our Republican Doctors pretend Of the same Batch is another memorable Position That the King 's most illegal Acts tho' they have not the Authority of the Law for indeed to say they have would be a Blunder with a witness yet they have the Authority of Sovereign Power Some will say that this is qualified by what follows Which is irresistible and unaccountable as if the King had this Power onely so far as it is irresistible and unaccountable Whereas it is evident the Proposition is entire before being the Medium whereby he would prove that the King 's illegal Acts are not inauthoritative in proof of which Medium he afterwards affirms That the Sovereign Power which made the Laws and can repeal and dispense with them is inseparable from the Person of the Prince Reduc'd to a Syllogism it runs thus The Authority of Sovereign Power is irresistible and unaccountable But the King 's most illegal Acts have the Authority of Sovereign Power This is an entire Proposition upon which he concludes Ergo The King 's most illegal Acts are irresistible and unaccountable This Assumption he goes to prove from the Supposition that such a Sovereign Power as he describes is inseparable from the Person of the Prince upon which or the like Doctrine another raises this comfortable Use In all Sovereign Governments and such he at large endeavours to shew England to be Subjects must be Slaves as to this Particular they must trust their Lives and Liberties with their Sovereign But for the Honour of our Gown this may be said That such Hereticks never appear'd among Lawyers till Divines began thus to wrest the Laws and Scriptures to their own damnation But as the former Quotation out of the Lord Coke can do Sir Edward Herbert no service upon the Reasons above shewn much less can the other which is one of Sir Edward's usual Perversions He tells us That it is resolv'd by all the Judges if my Lord Coke be a faithful Reporter that it is agreed 2 H. 7. That the King may against the express Provision of the Act 23 H. 6. dispense with that Act for that the Act could not bar the King of the Service of his Subjects which the Law of Nature did give unto him He adds This is reported unless my Lord Coke had a mind to deceive the succeeding Judges and draw them in to give pernicious Opinions as the Sense of all the Judges of England in King James 's Time in the Exchequer-Chamber Whereas the Lord Coke on purpose to prevent such an abuse of his Words says in the beginning of the Case I shall give no just offence to any if I challenge that which of right is due to every Reporter that is to reduce the Sum and Effect of all to such a Method as upon consideration had of all the Arguments he himself thinketh to be fittest and clearest for the right understanding of the true Reasons and Causes of the Judgment and Resolution of the Case in question Upon which it is evident that if any one of the Judges mentioned this the Lord Coke is a faithful Reporter but had he been silent as to this matter no man could suppose that such a tedious Argument as that in Calvin's Case was the Resolution in which the Judges concurred in every Expression But Herbert's own Eyes might and ought to have satisfied him that the Judges 2 H. 7. gave no Determination upon the 23 H. 6. nor does the Book say that so much as any one Person spoke to that Statute or mention'd the Reason devis'd in Calvin's Case for that the Act could not bar the King of the Service of his Subject which the Law of Nature did give unto him Nor could Sir Edward chuse but know the absurdity of that Ground for according to that all ought to be left in the State of Nature as it was before any Law made so that not onely any Person might act tho prohibited by subsequent Laws but he might act any thing forbid by any
Case and the Judges go upon these Grounds 1. That the Kings of England are Sovereign Princes 2. That the Laws of England are the King's Laws 3. That therefore 't is an Incident inseparable Prerogative in the Kings of England to dispense with Penal Laws in particular Cases and upon particular necessary Reasons 4. That of those Reasons and those Necessities the King himself is sole Judge And then which is consequent upon all 5. That this is not a Trust invested in or granted to the King by the People but the ancient Remains of the Sovereign Power and Prerogative of the Kings of England which never yet was taken from them nor can be And therefore such a Dispensation being pleaded by the Defendant in this Case and such a Dispensation appearing upon Record to come time enough to save him from the Forfeiture Judgment ought to be given for the Defendant quod querens nil capiat per billam 'T is evident that these Propositions are very wide from any thing he has or could have urg'd from the Books unless where a Brand of Infamy has been set upon the Judges The Examples of which made in several Ages one would have thought might have given sufficient Caution yet indeed he might have had enough of this kind from those of the other Gown who I think are now pretty well asham'd of these Notions Whatever Power of Dispensing the King has the Books suppose it to be entrusted by the People but according to this Resolution it came down from Heaven the Lord knows how And as he goes upon the Supposition of an Absolute Sovereignty in the King inseparable from his Person as such will have it unless that be granted all that he builds upon it are but Castles in the Air For this we are to have recourse to our Constitution to see what that Power in the Prince is which the great Fortescue says is à populo effluxa deriv'd from the People But for that we have no occasion from any so much as pretended Proof of his Assertions nor can any be offer'd but from the Resolution of the infamous Ship-money-Judges which seems to run parallel to this but is indeed far short of it For tho' they made the King the sole Judge of the Kingdom 's Necessity yet they suppos'd it to be at a time when there was a real Danger to be prevented by the exercise of this Judgment whereas here it is abus'd to the bringing in what the Parliament labour'd to prevent But I must observe 1. That whereas Sir Edward Herbert owns the Dispensing Power to be of dark Learning and that it is very fit it should receive some Light from a Determination in Parliament that Judges may judge by more certain Rules which Acts of Parliament the King may and which he may not dispense with Grant his Premisses and there can be no Darkness in it for the Power will extend to all Cases as far as the Legislative does and that he has determin'd positively in this Point when he makes all things not forbid by God's Law to be dispensible by the King nay if he might dispense with every malum prohibitum that is not malum in se without such Qualification as I have shewn ought to be it would go farther even as far as God's Power who never dispenses with more than his own Positive Laws not such as are founded upon Eternal Reasons And thus the Positive Laws of God and Man would be subject to the Pleasure of the Prince 2. He has taken it out of the Power of the Parliament to settle the Bounds of this extravagant Power For what he ascribes he says never was taken from the Crown nor can be because forsooth 't is the ancient Remains of the Sovereign Power and Prerogative of the Kings of England Wherein by the way there is an Implication contrary to what he would infer for this implies that 't is but the Remains of a Power diminish'd and impair'd 3. His printed and parol Resolutions are not onely very different as is obvious by the Comparison but very contrary One says 'T is a dark Learning the other The Case is as clear as ever came before the Court. Tho' his Insincerity is sufficiently evident from every part of his Defence yet it may not be unprofitable for the Publick that he should be follow'd to those Instances in which he glories for which 't is not enough for him to shew some one Act wherein he is singular if he follows the multitude to sin in others even of the same kind which if he does he can no more acquit himself of Perjury and breach of Trust than the rest of the tainted Herd In Matters of Blood he affects the Reputation of great Tenderness and thinks he has been scrupulous ev'n to a Fault For says he in some Cases upon Statutes that had been adjudg'd Felony by wiser and better Judges than my self and it was highly for the King's Service that it should be so yet I would never give Judgment of Death because I could not satisfie my Conscience that those Statutes were now in force It is a Fault it seems not to give Judgment against his Conscience when the narrow Interest of the Court exacts it and other Judges influenc'd from thence would countenance it But we may observe that those Statutes concerning Soldiers of which he is to be understood not onely give no Warrant for such Judgment as is obvious to the meanest Capacity but if they could admit of any Question the unbiass'd Judgment of the then Recorder of London Sir John Holt ought to outweigh the whole Bench. But I wish our Chief Justice could as well acquit himself in the Case of the Lord Brandon The Fathers Heroick Merits of the Crown too great to be rewarded and the Son 's Hereditary Valour dangerous to those who had reason to fear brave Spirits occasioned the rigorous Prosecution of both The Father was oblig'd to change his Soil till it might become more equal not unmindful of our Saviour's Advice or rather Precept when persecuted in one country to flee into another that tho' he contemn'd Death he might not provoke it The Son falling into their Hands both his Life and Honour which the severest Trials approv'd to be most valu'd by him were design'd for a Sacrifice In subserviency to which our Chief Justice directed the willing Jury to find him guilty of High-Treason chiefly upon a suppos'd Conspiracy to seise the Castle of Chester which if true were but Felony by a Statute as to that part yet in force and so could be no Evidence of Treason Nor would he suffer the Fact to be found specially tho he pretended not to answer the Cases and Records which were cited to shew that the Matter alledg'd could not be Treason nor did the then Sollicitor undertake the Task notwithstanding that shew of Reasoning with which he labour'd to set aside the
THE LORD CHIEF JUSTICE Herbert's ACCOUNT EXAMIN'D By W. A. Barrister at Law. Wherein it is shewn That those Authorities in Law whereby he would excuse his Judgment in Sir Edward Hales his Case are very unfairly cited and as ill applied Vendidit hic auro patriam Dominumque potentem Imposuit leges fixit pretio atque refixit LONDON Printed for J. Robinson at the Golden Lion in St. Paul's Church-yard and Mat. Wotton at the Three Daggers in Fleetstreet 1689. THE Lord Chief Justice HERBERT's ACCOUNT EXAMIN'D WEre it not the Reproach of our Times to have had Men advanc'd to Courts of Judicature for other Merits besides Integrity and Learning in the Laws of their Country it might seem a great piece of Vanity in me to answer a Book stamp'd with the Name and Authority of a Chief Justice Yet perhaps I might be thought not without cause to take this as my more immediate Province having been the first of the Profession who ventur'd in Publick Companies to shew how wofully that innocent Book-Case 2 H. 7. in relation to Sheriffs has been mistook or wrested to serve for Colour to that hasty Judgment in Sir Edward Hales his feigned Case Wherefore how needful soever the Chief Justice may find it to make Protestations of his Sincerity this may supersede any such from me Nor would I willingly call his a Protestation contrary to apparent Fact especially considering that weakness of Judgment manifested by this Defence did he not give too great occasion for it 1. From the large Steps which he took to precipitate and as I am well assured to sollicit that Resolution 2. The manner in which he delivered it widely differing from what he now prints 3. The unfairness of his present Quotations And 4. The unhappiness not to say worse of those Instances which he is pleased to give of his Sincerity I shall not dispute or repeat his Lordships State of the Case But the Question upon it being Whether the King may by his Prerogative dispense with the Statute 25 Car. 2. c. 2. requiring all Persons in any Office under the King to take the Test against Popery I shall enquire 1. Whether those Books which he relies on as Authorities for his Judgment give any colour to it 2. Whether admit they did they would countenance the Resolution as he delivered it 3. Whether those Instances which he offers of his Sincerity may reasonably be taken for such 4. Whether he in any measure clears himself from the Imputation of being highly criminal His Lordship like a Master-Disputant begins as he thinks with a Definition of a Dispensation which he says is given by the Lord Cook Dispensatio mali prohibiti est de jure Domino Regi concessa propter impossibilitatem praevidendi de omnibus particularibus dispensatio est mali prohibiti provida relaxatio utilitate seu necessitate pensatâ Where I must say he very unlearnedly clogs the Definition of a Dispensing Power with the Person in whom 't is suppos'd to be lodg'd nay and the Reason too why it should be so which neither the Lord Cook nor Common Sense gives him any Warrant to bring into the Definition However it seems according to this a Dispensing Power in some Case or other is vested in the King which yet is far from proving any thing to his purpose for either the King may in all Cases dispense as to particular Persons and then his Distinction of malum prohibitum malum in se falls to the ground or else it reaches only to those Cases in which the Judgment or Flattery of Judges have ascrib'd it to him He adds out of the Lord Cook as an Enlargement upon what he calls the Definition Inasmuch as an Act of Parliament which generally prohibits any thing upon a Penalty that is POPULAR OR ONLY GIVEN TO THE KING may be inconvenient to divers particular Persons in respect of Person Time or Place for this purpose the Law gives a Power to the King to dispense with particular Persons Where the Lord Cook manifestly restrains the Penalty to such as is given the King as Head of the People upon which account only he calls it Popular nor indeed can be thought to take in what is granted to any Subject that will inform it being mentionâ—d without distinction whether before or after an Information commenced And that the Lord Cook 's Words here ought not to be strained farther is yet more evident from the Case of Penal Statutes on which Sir Herbert's Misrepresentations will occasion my more particular Remarks As Sir Edward considering what Interest he has serv'd may be presum'd something conversant with Priests and Jesuits He might among others of less use have consulted the Learned Suarez who after the Definition which he makes to be Legis humanae relaxatio in a distinct Chapter shews with whom the ordinary Power of Dispensing which he distinguishes from that which is delegated is lodged where he says Certum est eum habere ordinariam potestatem dispensandi qui legem tulit And he gives the Reason Quia ab ejus voluntate potentiâ pendet So that none can have this power but he or they who are vested with the Legislative exclusive of others or such as have it delegated from thence That the King has not the Legislative exclusive of others is what I have formerly prov'd at large and it lies on the other side to shew that the Dispencing Power bas been delegated to him Yet thus much may be said on the contrary 1 st That the King could not in Law be presum'd to have exercis'd such a Power by himself for that the ancient Law provided that he should have a Counsel chose in Parliament who as the Charter affim'd to be declaratory of the ancient Law and sworn at the Coronation of Hen. 3. has it were sworn quod negotia Domini Regis Regni fideliter tractabunt sine acceptatione personarum omnibus justitiam exhibebunt and that it was accounted the Law long after that appears by the impeachment of Roger Mortimer 4o. E. 3. part of which was that Whereas it was ordain'd in the Parliament next after the Kings Coronation that four Bishops four Earls and four Barons should stand by the King PUR LUY COUNSEILLER without whose assent NUL GROS BUSOIGN NE SE FEUST Nevertheless Mortimer would undertake to manage all by himself accroaching Royal Power and it is easily to be shewn that such a Counsel was in use or continually insisted on as the right of the Kingdom from the time of the Charter confirmâ—d 28. Hen. 3. till the end of the Reign of Hen. 6. 2. A Power to grant Non obstantes to Statutes could not have been a right in the Crown at Common Law for we have clear Proofs of its odious and condemn'd beginning from the sulpureous Fountain of Rome as an honest Popish Lawyer confest with a deep sigh 35 Hen. 3.
this Non obstante Matthew Paris calls a detestable addition against all Reason and Justice and when the year after King Henry urg'd the example of the Pope for Non obstantes The Prior of Jerusalem says God forbid you should use this unpleasant and absurd word as long as you observe Justice you may be King and as soon as you violate it you will cease to be King. Which shews how little Foundation in Law it then was thought to have and what the whole Nation thought of the Pope's use of it may be seen at large in Matthew Paris and Mr. Prin's Animadversions on the 4 th Institute Farther the Reasons given why the King ought to have this Power fail here upon many accounts 1. In that the Interest of the whole of which the Legislators are the best Judges when they make the Law without Exception ought to outweigh all private Inconveniences 2. The Law has provided a more certain and equal Remedy having taken as sufficient Care for the meeting of Parliaments once a Year at least and I may say sitting too as it has for the sitting of the Common Courts of Justice as appears from the several Statutes in Print and others in the Rolls which avoid the common Cavil upon the words Oftner if need be And these were like the famous Triennial Act Provisions for the greater certainty of meeting so often at least but no Recessions from the old Law which as appears both by the Mirrour and the Life of King Alfred was for the Great Council to meet twice a year at London 3. The great Reason assign'd in the Latin Quotation from the Lord Cook Propter impossibilitatem praevidendi de omnibus particularibus which is after distinguish'd as to Person Time and Place can by no means be applied to the Case in question For 1. The Law was made but very few Years before their Lordships Resolution and not grown more inconvenient by length of time to any particular Person than it was at the making of the Act. 2. The Law-makers had in their immediate prospect every particular Person of the Romish Communion and the Time when and Place where the Danger would happen if any such were Commissioned Let us now see what help he can have from his second Quotation from the Lord Cook which is 7 Rep. f. 73. but he intends I suppose f. 37. and would have it believ'd that it was the Opinion of all the Judges of England 2 Jac. 1. That the King may dispense with any particular Person that he shall not incur the Penalty of the Statute tho' it be an Act made pro bono publico and that this is a Trust and Confidence inseparably annex'd to the Royal Person of the King in which 1. He again overthrows his Distinction of malum in se and prohibitum making that Power at large in relation in any Statute pro bono publico 2. He manifestly perverts the Lord Cook 's sense whose Words are When a Statute is made pro bono publico and the King as Head of the Commonwealth and the Fountain of Justice and Mercy is by all the Realm trusted with it this is a Trust and Confidence inseparably adjoyn'd and annex'd to his Royal Person in so high a Point of Sovereignty that he cannot transfer it to the disposition or power of any private Person or to any private Use for this was committed to the King by all his Subjects for the Publick Good c. But true it is that the King can upon any cause moving him in respect of Time Place or Person c. make a Non obstante to dispense with any particular Person that he shall not incur the Penalty of the Statute Where the sole Question was of transferring over a Penalty granted to the King as entrusted by all the Realm to see the Statute put in execution by inflicting the Penalty This Trust is adjudged inseparable and not to be transferr'd over but that however the King may dispense with the Penalty granted to himself Upon which I must say our Chief Justice has made a very foul Stretch for what is this to the Informer's Part concerning which the Question before him was But surely there is a mighty difference between these two Propositions Where the Subjects have entrusted the King with a Statute made for the Publick Good this Trust is inseparable and cannot be transferr'd to another but the Statute so entrusted may be dispens'd with which is all that is to be gather'd from the Lord Cook and this Tho' an Act be made for the Publick Good yet the King may dispense with it and this is a Trust and Confidence inseparably annex'd to the Royal Person of the King which is Sir Herbert's perverse Comment In short Lord Cook says Where the King is entrusted with the Execution of a Statute made for the Publick Good he may dispense with that Statute Sir Edward Herbert says He may dispense with any Statute made for the Publick Good. Upon which 't is to be observ'd That the Question in the Lord Cook was not of Dispensing but granting over the Penalty which Penalty he says is not to be transferred over The other would make it of Dispensing and that that Power is inseparable and not to be transferr'd so apparently changes the State of the Question His next Step is to the Year-book of H. 7. f. 11 12. in which he leaves us to seek the Year which is 11. This he calls the first and great Case which he cites wherein the King 's Dispensing Power is described and limited There is a diversity says the Book between malum prohibitum and malum in se as a Statute forbids any Man to coin Money and if he does he shall be hang'd this is malum prohibitum for before the Statute Coining Money was lawful but now it is not so and therefore the King can dispense with it So if a Man ship Wooll in any place but Calice it is malum prohibitum because it is prohibited by Act of Parliament But that which is malum in se the King nor no other Person can dispense with as if the King would give a Man power to kill another or license one to make a Nusance in a High-way this were void and yet the King can pardon these things when they are done Upon this Case 't is observable That the Power of Dispensing is here asserted in relation to Things and not Persons Wherefore according to this taken in Sir Herbert's Latitude the King may grant Dispensations to all in general where the Matter is only malum prohibitum whereas he himself owns that the nature of a Dispensation is particular and given to particular Persons by name 2. Many things in Magna Charta nay the most are but mala prohibita and so Magna Charta its self may be dispensed with when he himself owns that the King cannot dispense with one Tittle of Magna Charta And
positive Law which would make a mad World And this would come of a Natural Allegiance due to the Person of a King without respect to the Laws of his Government And the Resolution of the Judges in Calvin's Case is quite contrary to this Supposal for it is there resolved That they who were born under King James his Allegiance before he had the Crown of England were Aliens here notwithstanding that Accession But my Lord Coke is so far from giving any real Countenance to such a Resolution as that in Sir Edward Hales his Case that he in concurrence with all the Judges of Edgland is express to the contrary for in relation to the Court of Admiralty he and the rest of the Judges declare That the Statutes of 13 R. 2. c. 3. 15 R. 2. c. 5. and 2 H. 4. c. 11. being Statutes declaring the Jurisdiction of the Court of the Admiral and wherein all the Subjects of the Realm have Interest cannot be dispensed with by any Non obstante Nay he gives another Resolution of Judges tho' not so solemn as the former yet what he says is warranted in the Books and the Resolution comes up to our Case in terminis His Words are When an Act of Parliament is made that disableth any Person or maketh any thing void or tortious for the good of the Church or Commonwealth in that Law all the King's Subjects have an Interest and therefore the King cannot dispense therewith no more than with the Common Law. All the Chimerical Foundation of Solemn Resolutions being thus destroy'd I need not concern my self with the vain aery Superstructure which must vanish in fumo and in stead of the Appeal What may be relied upon if such Resolutions may not I appeal to all Mankind Whether our Senses are not sufficient Judges against these Accidents subsisting without any Subject meer Transubstantiation Nonsense Such are Reasons devis'd for a Resolution which never was to be seen But we are told That besides the Authority of the Case we have constant Practice that this Statute has been dispens'd with ever since and if it were not so the Consequences would be dreadful illegal Convictions c. But to this I say 1. A facto ad jus non valet argumentum till there be legal Determinations on the side of the Fact. 2. The Fact cannot be shewn for any Sheriff to have enjoy'd the Office for more than one Year by the same Patent 3. However the Consequences would not necessarily follow for we know even Laws made by Kings de facto have always been look'd on as binding and so have the Admittances to Copy-hold Estates made by Disseisors and others without Title And tho' I love not to lay any great stress upon Presidents of our own time yet it may serve to Sir Edward and we well know that notwithstanding the late illegal Choice of Sheriffs in the City of London yet no Challenges were allow'd because they were Sheriffs de facto That I may not be here unnecessarily detain'd with what he says to real or fancied Objections I shall hasten to his other pretended Authorities and shall begin with his last as having the most immediate reference to the Cases above-cited and which he seems to be most proud of and that is Serjeant Glanvil's Argument delivered at a Conference between the Lords and Commons wherein he owns that in such things as are onely mala quia prohibita under certain Forfeitures and Penalties to the King and the Informer there the King may dispense This indeed is more than appears from any Case that Sir Edward Herbert has cited as I have shewn above yet is no more than what the Lord Coke saith elsewhere immediately after he has denied that Power in things made void or tortious for the Good of the Church or Common-wealth in which he says all the King's Subjects have an Interest and therefore the King cannot dispense therewith no more than with the Common Law. All that is more in Serjeant Glanvil relates onely to the Nature of those Laws which were then insisted upon if he went further it could no more be an Evidence of the Opinion of the House of Commons in that Point not being the Point put to the question than his Quotation out of Calvin's Case is of the Opinion of all the Judges But the first part of his Speech cannot be stretch'd farther than mala prohibita had formerly been taken that is in relation to new Prerogatives or at least Things wherein the Subjects in general have no Interest vested in them and he expresly restrains it to such Cases wherein his Majesty by conferring Grace and Favour upon some doth not do wrong to others as it is in my Lord Coke above and in Moor where 't is held That Statutes which give a Prerogative or restrain the Prerogative may be dispens'd with but not such as give or dispose of Interests And as to what restrains the Prerogative not coming within the mala prohibita tho' it falls not under consideration here yet we may observe the difference taken in Lord Hobart where a Statute is made to ease the Sovereign of Labour not to deprive him of Power In the first Case the King may dispense not in the other And I think no man can doubt but the Statute 25 Car. 2. c. 2. which not onely requires Officers to take the Oaths and Test to distinguish them from Papists but disables them that do not take them within three Months vests an Interest not onely in several particular Persons who may be Reversioners but in all the Subjects in general and is of the nature of those Statutes insisted on in the Petition of Right and press'd for by Serjeant Glanvil Not Laws inflicting Penalties in malis prohibitis but Laws declarative or positive conferring or confirming ipso facto an Inherent Right and Interest of Liberty and Freedom in the Subjects of this Realm as their Birthright and Inheritances descendable to their Heirs and Posterity A Freedom I may add from Popish Slavery and Tyranny Statutes incorporate into the Body of the Common Law over which with reverence be it spoken there is no Trust in the King 's Sovereign Power or Prerogative Royal to enable him to dispense with them or take from his Subjects that Birthright or Inheritance which they have in their Liberties by vertue of the Common Law and of these Statutes I may say this Statute And such a Statute it is that no man that wishes well to the Protestant Interest not onely here but thro' Christendom would consent to the abrogating or impairing the Force of it without obtaining such Laws for restoring the ancient Constitution both for the Choice of Sheriffs and Counsellors among other things as might more effectually keep out the Booted Apostles than any other Means next to the glorious Expedition of his Highness the Prince of Orange whose miraculous Successes are not
onely the Subject of present Admiration but have been plainly foretold in past Ages and will be celebrated in all future But to return from this short Digression 'T is manifest that Serjeant Glanvil speaks as well of such Laws as are positive as those that are declarative such as confer an inherent Right as that confirm and of Statute as well as Common Law not to be dispens'd with so that he is manifestly on our side and seems not in the least to have exceeded the Lord Coke where he makes so express an Exception of our Case from that Dispensing Power which he allows By inherent the Serjeant can mean no more considering the import of confer than actually vested and inherent and inseparable by any less Power than that from which it was derived Thus in relation to those Prerogatives that have been counted inherent and inseparable in relation to Penalties and the like the true meaning can be onely that while they continue they are not to be separated and transferred over to another Yet no thinking Man will doubt the Power of a Parliament in relation even to them and if they cannot be receded from in particular at least they may in gross when a King does cedere imperio or abdicare Regnum which most Prerogative-Casuists own may be not onely by actual cession from the Government but by Acts amounting to an Abdication and shewing a fixt Intention no longer to treat his People as Subjects Nor perhaps could there be greater Evidence of such Intention than the dispensing at a lump not barely by retail to particular Persons with those Laws which were made by the united Wisdom of the Nation to secure it as much as they thought Humane Means could or at least the Court would yield to against those real Dangers which were in their immediate prospect Nor in all probability had this Enclosure been laid waste if the Dispensing Judges had not made the first Gap. As to Sir Edward's suppos'd clear Concessions of this Power from all the Commons of England 1 H. 5. they are quite otherwise than he represents them nor would be conclusive to his Point however In the first says Sir Edward The Commons pray that the Statutes for voiding of Aliens out of the Kingdom may be kept and executed to which the King agrees saving his Prerogative that he may dispense with whom he pleases and upon this the Commons answered That their Intent was no other But the Record says Sauvant a luy sa Prerogative Saving to him his Prerogative Whatever that was they declare they never intended to injure it Then it goes on with the Copulative and which adds new Matter and is dishonestly left out by Sir Edward Et qil purra dispenser ovesque cex queux luy plerra AND that he may dispense with whom he pleases Which is an additional Grant or Licence to that King but that this Saving is but a general Saving of the Prerogative appears by the very next Record which he cites of the same Parliament Sir Edward's Words are In the same Parliament when the Commons pray That the Statutes of Provisors Statutes of the same nature with this in our Case for they were made against the Court of Rome's encroaching Jurisdiction in England I say when they make the like Prayer That these may be put in execution being admonished by the King's Answer in the former Case they themselves insert in their very Prayer a Saving for this Prerogative of the King 's and then the King agrees to it Where he would insinuate that this Prerogative of dispensing with particular Persons is there sav'd when the Record is express to the contrary The Words in English are Also the Commons pray for the Good and Profit of the Realm That all the Statutes made against Provisors in the Times of the most Noble Kings E. 3. R. 2. H. 4. your Father whom God be merciful to may stand in their force and may be held and executed in all Points and that no Protection nor other Grant to any Person by our Lord the King working to the contrary in forbearance of the Execution of the said Statutes be allowable or available to any Person whatsoever in this Matter And if any thing be done to the contrary let it be held for null or void Saving all times the Prerogative of the King. The King answers Let the Statutes thereof made be held and kept Which is plainly meant according to their Prayer without the King 's impeding the Execution of them by any Protection or other Grant to any Person whatsoever and if such Grant be that it shall be void Is not this as much as to say That no Non obstante shall make any such Grant good Oh but Sir Edward will tell us That this shews that the Parliament thought the King could otherwise have dispens'd with those Acts. By no means it onely argues an Abuse crept in which Matthew Paris shews to have been as early as the time of H. 3. and likely to be allow'd of by the Judges but the Parliament would prevent even that and surely they would never provide that a Non obstante or Grant to a particular Person shall be void if they thought the King had a Prerogative to defeat this when he pleas'd much less when they expresly pray against such an Abuse can they be thought to contradict themselves and in the same Breath that they desire that no Person whatever may be dispens'd with yet leave the King a Prerogative to dispense with whom he pleases The absurdity of which Reasoning he might have seen in that excellent Speech of Serjeant Glanvil which he himself receives as the Sense of the Commons of England assembled in Parliament Wherefore the Savings in both the Records can be but general Savings of such Prerogative as the Kings had whatever it were Which the Kings as they began to encroach upon the People or to be Jealous of their Encroachments would have inserted out of abundant Caution before they would yield to several Acts. And these being Acts of Parliament which could pass but as the King consented the People were forc'd often to gild the Pills with such Savings but 't was otherwise of Judgments in Parliament to which no Consent of the King was requisite Farther yet Admit the King had a Prerogative of dispensing with particular Persons both as to Aliens and Provisions yet there could no general Rule be taken from thence because it would onely argue that the fondness for Aliens and fear of displeasing the Court of Rome had at first occasioned the reserving the Power of easing some particular Persons without which the Kings would pass no Act against them However it was the frequent Complaints of the Commons and Acts made against both the one and the other shew that those Laws were little regarded or executed and yet that the King had not a Prerogative allow'd him any
Authority of Lord Cook pleading expresly and unanswerably for that injur'd Hero of whom the Age was not worthy the Lord Russel Nor was the Proof in Lord Brandon's Case less defective than the Matter for besides the scandalous Sexton who swore to Designs against another King there was but one Witness in the Eye of the Law he indeed so far Legal as that he might be heard being an Approver but no way credible considering how far he had been drawn with his Fetters about his Heels even to contradict himself The other by no means Legal being under an Outlawry for High Treason unrevers'd For tho' the Execution of that Judgment for so in Law it is was pardon'd by the King yet the Crime was by no means purg'd to set him right to Fame Which tho' the Counsel offer'd to make good they were not suffer'd to speak to it and yet the Point is very clear by ancient Authorities and confirm'd by later without any thing really to the contrary Nay farther tho' besides all these things another Matter was urg'd in Arrest of Judgment upon which Judgment had formerly been arrested yet without enquiring whether the Fact were true or the Book Law that with the rest was over-rul'd to come at the Life of a Person obnoxious to the Government as some call'd themselves Such was Sir Edward's great scrupulousness and tenderness where the Life of Man was concern'd He adds a Scruple in a Case before himself and the other Usurpers of the High-Commission Court but his singularity therein can be no Excuse for his acting at all upon a Commission apparently against the Statute which took away not onely the Power of Fining and Imprisoning which that Court illegally pretended to but the Spiritual Authority which it really had and such a Commission it was as never receiv'd countenance till the Act long since repeal'd which not onely made H. 8. Head of the Church but gave him Power which he afterwards delegated to Lord Cromwel to redress all Errors Heresies and Abuses by Spiritual Authority I suppose it is by this time pretty evident that Sir Edward's Crime will admit of no Extenuation but the Aggravations are many it appearing 1. That he and his Brethren were the Inventers of this Dispensing Power in such extent as he contends for in the Print but much more in his real Resolution 2. That the Error was not an Error in that single Case but of large and mischievous Consequences and if the King could dispense with that Statute upon the Reasons given and Circumstances appearing in Sir Edward Hales his Case others may well conclude from thence That therefore he has a Power to dispense with all other Statutes even such as confer or vest in any of the Subjects any manner of Interest whatsoever in their Lives Liberties and Estates and there being a Conviction and consequently a Disability actually incurred before the Dispensation therefore by reason of this Case the King may dispense with such Statutes where a precedent Disability is actually laid upon a Man as there is upon the Members of both Houses till they have taken the Oaths and Tests prescrib'd These are not Consequences which may flow from the heated Imaginations of angry Men but such as have Warrant and Foundation from their Judgment 3. His so far undervaluing the Wisdom of the Nation as to make the benefit of a Law against the undue continuance of Sheriffs equal nay go beyond what they could devise for the security of their Religion or rather so to undervalue the Holy Religion which I think he yet professes when however it would not come up to the Point according to the Differences which himself receives Speaking of the Statute 23 H. 6. c. 1. he says The Recital in the Preamble and the whole Purview if compar'd with our Statute of 25 Car. 2. c. 2. equals it in every Particular and in some goes beyond it For the Mischiefs recited in this latter Statute are onely in these Words For preventing Dangers which may happen from Popish Recusants and quietting the Minds of his Majesty's Good Subjects The other for preventing the importable Damage of the King and his People by Perjury Manslaughter and great Oppression Then he goes to the Purview express against Non obstante's and creating a Disability but according to his usual haste he stays not here to make the Comparison but hastens to his Sham-Resolution as has been sufficiently evinc'd already The Questions here will be 1. Whether the Mischiefs intended to be prevented are equal in both 2. Admit they were equal in Degree whether they are in Extent which if they are not still the Resolution if real will fail him according to the Difference which he himself receives of pro bono populi complicati and singulorum populi 1. For the first I suppose he thinks the Epethite importable gives the odds as if Popery wanted an Epethite to represent it to Protestants for what they ought to do their utmost to prevent as if it did not carry in the Belly of it Perjuries Manslaughters and great Oppressions by whole-sale or that Mischefs more remote and accidental as the Continuance of Sheriffs may habituate to Corruption and that occasion the other fatal Train could equal the more immediate and certain Consequences unless by good Laws prevented of French Conversions proceeding from fixt Principles But then to give Judgment to frustrate this necessary Law at a time when the Papists had a King of their own Superstition to head them is to make the King as much above the Law as our ancient Lawyers tell us the Law and his Court by way of Eminence that is the Great Council or Parliament are above him 2. As this proves the Interest of the Subject in the Law about Sheriffs to be neither equal nor so immediate as in our Statute there needs not many words to shew the difference of the extent the Peace only of particular Counties and thaâ— by small insensible degrees is there concern'd nay admit the King had this Power and should so violate that Trust which Sir Edward will have to be repos'd in him as to extend it to all Counties where he puts in the Sheriffs yet this could not affect all the People because there might be a Retreat to London Middlesex and Westmorland in neither of which has it been pretended that the King had such a Power till the late Violence of some and Treachery of others gave that unhappy Inlet of Perjury Manslaughter I may say Murder and Oppression before which London was a perfect Goshen in an Egyptian Kingdom 4. But what can excuse our Justice's so apparent falsifying both Records and Law-books or if not at least his shameful Negligence in not going to the Fountain-heads but setting up the Recitals of Cases against the Cases themselves and the extrajudicial Opinions or Arguments of Judges nay the very Annotations of
Reporters foreign to any matter in question against solemn Resolutions which either wilful Falsifications or criminal Negligence has occasion'd the answering Objections with a Case which never had a Resolution but what he and his Brethren gave when it was brought in by Head and Shoulders onely to be a leading Case to this 5. He could not but know that the Case was faintly argued against Sir Edward Hales either he or the late Empson and Dudley having given the Fees on both sides wherefore 't was comical for the Chief Justice to say That the Case appear'd clear upon the Argument I am sure he is inexcusable that when Causes of less Consequence and of less dark Learning us'd to be argued twice at least this was but once and the learned Mr. Wallop who could have set it in the truest light was refus'd to be heard to it tho' he requir'd it 6. Our Chief Justice might easily have found that the beginning of Non obstante's was within time of Memory which would not be enough to entitle the King to a Prerogative For as 't is in Plowden every Prerogative contains a Prescription for it rests in usage that is such as are not deriv'd from known Grants of the People And he might have learnt from that Great Man whom he would fain draw to his side That Presidents are useful to decide Questions but in such Cases as these which depend upon fundamental Principles from which Demonstrations may be drawn millions of Presidents are to no purpose Time of legal Memory is well known to extend to the Reign of R. 1. and tho' Non Obstante's as I observ'd above are complain'd of within that time as early as 35 H. 3. yet that diligent and faithful Searcher into Antiquity Mr. Prin shews That they were then made use of only to revoke some indiscreet Grants or Priviledges but not to elude subvert or dispense with any Penal Laws or Acts of Parliament till they were introduced by religious Persons after the Statute of Mortmain 7 E. 1. to elude and frustrate the Act. And if this be true I am sure thus far there is no Colour for the late Resolution for they might have seen in Lord Vaughan That the King in that Case dispenses only with his own Right and concludes not the mean Lords Tho' successive Resolutions of Judges are but Evidences of the Law and such as are to be examin'd and rectified by the Constitution and fundamental Maxims of the Inherent Rights and Liberties of a free-born People Yet if Sir Edward had had the diligence to read what might have occurr'd on this Subject or the Honesty to hear it from others he might have known that it is far from being a setled Point That the King might dispense with particular Persons as to whatever is not prohibited by the Law of God and that his Dispensation makes the thing prohibited lawful to be done by him that has it The farther we look back since this Power has come in question the less does it seem allowed Edward 3. with the Assent of that Council which as I observ'd before was chose in Parliament had granted to Merchants Denizens for a time the same Liberty about Staple Commodities which Merchants Aliens had tho' this was not by the King alone and for the Benefit of Natives yet the Merchants fearing that they might be impeach'd in time to come for their Merchandize which they had so pass'd by vertue of such Grants for as much as they were made out of Parliament for their Surety obtain'd a Ratification and Confirmation in Parliament But the vexata questio was about licensing the shipping of Wooll elsewhere than at Calais that the King might do this the Pretence was specious Calais was no part of the ancient Demeasn of the Crown but a new Acquisition whose Interests the King seem'd to have more absolutely at his Disposal according to the Resolution of our Judges before the House of Lords who declared That tho' the Canaries were the Dominion of the King of Spain they were no part of the Dominion of Spain And if Sir Edward had taken notice of Lord Cook where he is against as well as where he seems to favour him he ought to have observ'd That one Lyons a Merchant and Lord Latimer were sentenc'd in Parliament for procuring of Licenses and Dispensations for transporting of Wooll And this they laid to the Destruction of the Staple and of the Money of Calais to the great Damage of the King and Realm Indeed the year after the Latimer's Sentence is remitted at the Request of the Commons alledging that the Charge against him was not true not for defect of matter So that here is a Judgment of the House of Lords in Point against one of those very Cases upon which Court Judges have since founded their Distinction of malum prohibitum malum in se And it is an easie thing to know which ought to turn the Scale After this it came to be a Question before all the Judges in the Exchequer-Chamber Whether this Offence being pardoned which that the King might do after it was committed has not been disputed the Pardon before an Information brought would defeat the Informer of his share There the Court held That if the Suit were the Parties the Pardon should not bar him but the sole Question was Whether the Party was entitled to any Suit being the Advantage was given to the Discoverer which he might have by a Suggestion in the Exchequer but the Statute gives no Action however this receiv'd no Determination at that time But if the Question had then been of a Dispensation and whether that would bar the Informer's Action given by Statute can any man doubt but that they would have adjudg'd it could not When notwithstanding a Pardon and that in a Case where an Action was not expressly given yet it was so doubtful that they would not determine against the Informer but that the Dispensation would not have avail'd with them or at least they would not have lookt upon it to authorize what was prohibited by any Statute appears from other Passages there as where it is said That in a Recognizance of the Peace which is not confin'd to one entered into at the request of a Subject the King cannot pardon or release till the Peace is broken And where a man ought to repair a Bridge the King can pardon only for the Fine due to himself but however the Party shall be obliged to repair the Bridge because this is to the Damage of all the People And to the same purpose is that 3 H. 7. that tho' the King may pardon or free from a pecuniary Mulct before the occasion happen yet he cannot pardon or discharge the Trespass it self and instance is given in voluntary Escapes So far were they from believing that the King in remitting the pecuniary Mulct could make
justifie them It is well known in Story that six Judges and two of the King's Council at Law suffer'd for Treason upon a Parliamentary Prosecution 11 R. 2. for delivering their Opinions That they were to be punish'd as Traytors who hindred the King from exercising his Soveraignty and Prerogative over a Statute and an Ordinance and Commission made in the foregoing Parliament The substance of their Crime lay in ascribing to the King a Power to defeat the Provisions of the Parliament for the safety of the Nation and is a direct President at which our Judges ought to tremble Nor can it avail them that the express words of the Statute 25 E. 3. c. 2. do not condemn them since that Act transmits common-Common-Law Treasons to the Judgment of Parliament and the Statute 1 Mar. c. 1. leaves that power untouch'd and who can doubt but such a Resolution and that justified in Print and published to the World is an overt Act of Treason as it tends to the subverting the Fundamental Rights of Parliaments Nor can they have any colour for asking with the Lord Strafford Where is the Buoy when they see so many Shipracks to admonish them Nor ought Sir Edward to wonder at a Treason against the Government tho' not directly against the Person of the King his Relatives Officers or his Coin nor yet an actual levying of War within his Kingdom or adhering to his Enemies for he may find among the Articles against the Lord Kimbolton and others exhibited Anno 1641. by his Father then Attorney-General That they have traiterously endeavoured to subvert the very Rights and Beings of Parliaments But since Sir Edward pleads Conscience for what he did and might have urg'd the Authority of Spiritual Guides who would make the Scripture notion of higher Powers a sufficient Warrant for such a Judgment I shall conclude with the good Queen Elizabeth Doctrine of the famous Bilson afterwards Bishop of Winchester By Superior Powers ordain'd of God we understand not only Princes but all politick States and Regiments some where the People some where the Nobles have the same Interest to the Sword that Princes have in their Kingdoms And in Kingdoms where Princes bear rule by the Sword we do not mean the Prince's private Will against his Laws but his Precept derived from his Laws and agreeing with his Laws FINIS Publish'd by this Author A Poetical Essay towards an Epitome of the Gospel Ed. Anno 1678. Jani Anglorum facies nova Anno 1680. Jus Anglorum ab Antiquo Anno 1681. King Edward the Sixth against the Pope's Supremacy with Remarks on his Life Anno 1682. Lord Hollis his Remains Dr. Twisden's Considerations touching the Grand Question With Reflections upon Antidotum Britannicum and Mr. Hunt's Book and Postscript Anno 1682. Anonymus his Letters to Dr. Sherlock concerning Church-Communion With a Reply to his Answer Anno 1683. A Letter of Remarks on Jovian Anno 1683. A true Account of the Unreasonableness of Mr. Fitton 's Pretences against the Earl of Macclesfield Grotius his Arguments for the Truth of the Christian Religion in Verse With an Appendix concerning Prophecies Anno 1686. The Idea of Christian Love and Paraphrase on Mr. Waller's Poem of Divine Love. Anno 1688. Ready for the Press A Supplement to Dr. Brady's Introduction and Compleat History Vid. Account p. 1. Account p. 6. Cook 11 Rep. f. 88. V. p. 7. 8. P. 6. 11 Rep. f. 88. 7 Rep. f. 36. Suarez de Legibus lib. 6. cap. 10. f. 384. Ib. cap. 14. f. 395. V. Jus Angl. ab Antiquo Jani Angl. fa. nov Vid. Mat. Par. de Anno 28. H. 3. So Rot. Pat. 42 H. 3. m. 4. m. 10. V. Jan. An. fa. Nov. p. 244. Rot. Par. 4. E. 3. Vid Rot. Par. 5. E. 2. Ryley pl. parl f. 317. Rot. Par. 8. E. 2. n. 35. 4. E. 3. n. 16. 17. E. 3. n. 12. Walsingham fol. 243. Vid. Knighton the 1st Art. against R. 2. f. 2747. Vid. etiam 5. H. 4. n. 37. 11. H. 4. n. 15. 1. H. 6. n 16.24.30 11. H. 6. n. 17. 31. H. 6. n. 38. V. Roles Ab. 2. part 179. Mat. Par. ed. Tig. f. 784. V. Math. Paris f. 827. illepidum Prin's Animad f. 129.130 V. etiam Sir John Davis his Rep. f. 69. b. * Vid. Mod. ten Parl. Parliamentum separari non Debet dummodo aliqua Petitio pendeat indiscussa vel ad Minus ad quam non suit determinatum responsum si Rex contrarium permittat perjurius est As I find it in an ancient MS. of the Modus Vid. etiam 4 Inst f. 11. Vid. 50 E. 3. n. 177 178. 1 R. 2.95 This acknowledg'd for Law in the King's Name 2 R. 2. n. 4. Vid. Spelm. Vit. Aelfredi f. 115. Mirrour p. 282. Where 't is plac'd among the Abuses of the Law That Parliaments are not held twice a year Account p. 7. 7 Rep. f. 36. Account p. 7. Pag. 7. Pag. 28. Chief Justice Fineux 11 H. 7. f. 12. a. Moor Rep. f. 714. Indeed the Book spsaks also of dispensing with Statutes restraining the Prerogative but that concerns not the Instances here of things forbid the Subject for the limitation of that Power Vid. infra F. 332. F. 333. Sup. f. 714. 7 Rep. f. 36. b. 1 H. 7. f. 2. b. 3. â— P. 8 9. Acc. p. 9. Yet p. 5. he promises to cite the Books and Pages and to transcribe the very words of his Authorities that every body may be convinc'd if he were in a mistake it was no wilful mistake 2 H. 7. f. 6. b. 7. a. F. 7. It should be c. 9. F. 7. a. Brook Patents n. 45. Fitz. Ab. tit Grant n. 22. Account p. 11. First Ground 23 H. 6. c. 8. Vid. Cambd. Brit. f. 115. Vid Dugdale's Baron f. 2. Bromton a. f. 779 ad 798. De Regno Northumb. 9 Rep. f. 25 b. ir Rob. Atkins v. Rob. Holford in Scaccario Hil. 22 23 Car. 2. Vid. Rep penes doctissimum Dominum Ward The second Ground Rot. Parl. 1 H. 7. par 2. Account p. 12. Vid. Account f. 12. Account p. 12. Accoont p. 13. Grenden v. Levesque de Lincoln Plowden f. 502. Second Point 2 H. 7. Account p. 13. 12 Rep. f. 17. Was made Sollicitor 16 June 34 Eliz. Dugd. Cron. Series f. 99. 12 Rep. f. 18. Dr. Sherlock's Case of Resist p. 113. Dr. Scot's Serm. upon Rom. 13 1. Dr. Sherlock's Case of Non-resistance p. 199. Pag. 199 200. Jovian p. 242. How falsly vid. the Letter to Jovian Vid. Jovian p 236. Account p. 13. 7 Rep. f 4. Vid. Archb. Abbot's Exceptions to Sibthorp's Serm. Rushw part 1. f. 439. 442 7 Rep. f. 27. Vid. Vaugh. f. 286. 4 Inst f. 135. 3 Inst f. 154. Account p. 16. Account p. 16. Vid. Consid touching the Grand Quest a. p. 210. to 214. 1 Inst f. 58 b. Account p. 26. Vid. supra 3 Inst f. 154. Vid sup p. 12 28 30. Account p.
more for particular Persons than for all in general Sir Edward has five other trivial Instances of the Dispensing Power which however I shall not omit One is the Dispensing with the Statute 8 R. 2. c. 2. which requires that no Man should go Judge of Assize into his own Country But for this there is onely Practice which has pass'd sub silentio and so could be of no Authority in Law Besides the Statute is barely Prohibitory and does not render the Patents void if otherwise yet I cannot say but an Information would lie tho' there were a Non obstante in the Case The second is of dispensing with the Statute 10 E. 3. c. 3. which provides That whoever has a Pardon of Felony shall find Sureties of the Good Behaviour Of which he says as of the other That it has been constantly dispens'd with ever since it was made But if the Practice had been so which he does not prove it would not avail unless it had come in question judicially Whether the Pardon would be valid to one who had not given or at least tendred Sureties Indeed there is a Case in our Books where the Court did not require Sureties because of a particular Clause in the Pardon dispensing with it but this was no earlier than 16 Car. 1. the Judges of which time paid sufficient deference to Prerogative but that Case seems to be not onely primae impressionis and without any Reason given but in effect condemn'd by the Reporter as he shews that the Court abus'd their Discretion if they had any in the Matter T was the Case of Sir Matthew Mints who appear'd to be guilty of several Misdemeanors for which he deserv'd to be bound to the Good Behaviour committed after the time to which he was pardon'd The third and fourth Instances scatter'd from the rest are of dispensing with Pluralities and Bastards entring into Priests Orders which if possible will be less serviceable to him For 1. Such Dispensations are never granted by the King but by the Archbishop and the King onely licenses or confirms the Archbishop's Dispensation in unusual Cases 2. That the King's Licence or Confirmation in Cases unwont as the Statute has it is of any force is owing to the Statute 25 H. 8. c. 21. 3. Even in usual Cases where the Archbishop might dispense tho' the King's Confirmation be added yet unless it come in due time it will not prevent a Lapse incurr'd upon the Statute 21 H. 8. c. 13. against Pluralities as was adjudg'd in Digby's Case tho' the Dispensation came before Induction And this comes up fully to one of the Points in Sir Edward Hales his Case which our Chief Justice has not been so fair as in the least to mention to be a Point in the Case nay quite contrary he supposes it to be a Case where a Disability is annex'd as a Penalty and that Penalty is not to be incurr'd before Legal Conviction and where the King's Dispensation makes the thing dispens'd with lawful and consequently prevents any Conviction or Penalty at all forgetting that in the very State of the Case he owns there was a Conviction before the Dispensation came so that here was a Disability actually incurr'd and that upon Record as appears in the Pleadings and while that Record remains there is no falsifying of it tho' in fact the Conviction were before the three Months given in the Statute to prevent a Disability and he had no other Means than either to plead no such Record or to bring his Writ of Error Wherefore this Dispensation comes clearly within Digby's Case as being too late supposing otherwise it were valid As Sir Edward shews that he has read Thomas and Sorrelâ—s â—s Case he might have known another Reason given of these two Cases viz. That the King may dispense with a Bastard to take Holy Orders or with a Clerk to have two Benefices with Cure which were mala prohibita by the Canon Law and by the Council of Lateran not by Act of Parliament which is most true For these are mentionâ—d in the Book of H. 7. before any Act made against Pluralities There is another Instance in that wild Annotation upon the Case of Customs in the 12 Rep. where 't is said See 4 H. 4. c. 31. in which 't is ordain'd That no Welshman be Justice c. in any part of Wales notwithstanding any Patent to the contrary with Clause of Non obstante licet sit Wallicus And yet without question the King may grant with a Non obstante Nor do I question it neither even before 21 Jac. c. 1.38 when that Statute was repeal'd provided the Welshman use not Welsh Speech and this by 27 H. 8. c. 26. But as to these three last Instances it might be said further That if they were stronger than they prove yet they might fall under the Difference receiv'd by him from Lord Vaughan where he says The King may dispense with Laws made pro bono populi complicati but not with such as are made pro bono singulorum populi in which the Lord Vaughan is not so absurd as to mean that tho' the King cannot dispense with a Law in which any Man in particular is so far interested as to be intitled to an Action for himself alone yet he may with those in which all the Subjects are interested But his Meaning to make him consistent with himself must be restrain'd to Lord Coke's Sense upon the Penal Statutes which makes this Power to be onely where the King as Head of the Commonwealth is trusted by all the Realm in which sense he alone is to look after the Interest of the populus complicatus under him as Head. Thus Lord Vaughan 1. expresly qualifies it when he says They are pro bono populi complicati as the King in his Discretion shall think fit to order them for the good of the whole 2. He illustrates it by the Example of a Pater-familias whose Estate he tells us may be said to be pro bono communi of his Family which yet is but at his Discretion and Management of it and they have no Interest in it but have Benefit by it 3. Both he and Sir Edward Herbert allow Instances where every particular Man is not entitled to his Action and yet the Statutes are own'd to be pro bono singulorum populi and not to be dispens'd with and such are Magna Charta and those other Laws mention'd by Serjeant Glanvil and Sir Edward And if some difference can be found between the Interest singulorum populi in all those Statutes and in ours to use his words I wish any man would shew me any such difference or else we must say That not onely the former Resolutions but Lord Vaughan here as well as where I before observ'd is full against him nay even he is against himself which I would be loth to think