Selected quad for the lemma: prince_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
prince_n	law_n	power_n	sovereign_a	3,887	5	9.6410	5	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A26174	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.	Atwood, William, d. 1705?	1689 (1689)	Wing A4176; ESTC R2780	39,888	80

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

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