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
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
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
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
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
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
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
AN ENQUIRY INTO THE Power of Dispensing WITH PENAL STATUTES Together with Some Animadversions UPON A Book writ by Sir EDW. HERBERT Lord Chief Justice of the Court of Common Pleas ENTITULED A short Account of the Authorities in Law upon which JUDGMENT was given in Sir Edward Hales 's Case By Sir ROBERT ATKYNS Knight of the Honourable Order of the Bath and late one of the Judges of the Common Pleas. Digna vox est Majestate Regnantis Legibus Alligatum se esse Principem profiteri LONDON Printed for Timothy Goodwin at the Maiden-head against St. Dunstan's-Church in Fleet-street 1689. ADVERTISEMENT January the 21st 1689. TO Morrow will be Published by Tim. Goodwin at the Maiden-head against St. Dunstan 's Church in Fleet-street The Power Jurisdiction and Priviledge of PARLIAMENT And the Antiquity of the House of Commons asserted Occasioned by an Information in the King's-Bench by the Attorney General against the Speaker of the House of Commons As also a Discourse concerning the Ecclesiastical Jurisdiction in the Realm of England occasioned by the late Commission in Ecclesiastical Causes By Sir Robert Atkyns Knight of the Honourable Order of the Bath and late one of the Judges of the Court of Common-Pleas AN ENQUIRY INTO THE Power of Dispensing WITH Penal Statutes 25 CAR. II. Cap. 2. An Act for preventing Dangers which may happen from Popish Recusants FOR preventing Dangers which may happen from Popish Recusants and quieting the Minds of his Majesties good Subjects Be it enacted c. That every person that shall bear any Office Civil or Military c. or shall have Command or Place of Trust from or under his Majesty c. within the Realm of England c. shall personally appear in the Court of Chancery or of the Kings-Bench or at the Court of Quarter-Sessions in that County where he shall reside within three Months next after his Admittance into any of the said Offices and there in open Court take the several Oaths of Supremacy and Allegiance and shall also receive the Sacrament of the Lord's Supper according to the Usage of the Church of England in some Parish-Church upon some Lord's-day immediately after Divine Service And every the person aforesaid that doth or shall neglect or refuse to take the said Oaths and the Sacrament in the said Courts and at the respective times aforesaid shall be ipso facto adjudged uncapable and disabled in Law to all intents and purposes whatsoever to have occupy or enjoy the said Office or Employment and every such Office and Place shall be void and is hereby adjudged void And every person that shall neglect or refuse to take the said Oaths or the Sacrament as aforesaid and yet after such neglect or refusal shall execute any of the said Offices after the said times expired wherein he ought to have taken the same and being thereupon lawfully convicted upon any Information c. in any of the King's Courts at Westminster or at the Assizes every such person shall forfeit 500 l. to be recovered by him that shall sue for the same And at the same time when the persons concerned in this Act shall take the said Oaths they shall likewise subscribe the Declaration against the Belief of Transubstantiation under the same Penalties as by this Act is appointed Paschae 2 JAC. II. In the King's-Bench Arthur Godden Plaintiff in an Action of Debt of 500 l. grounded upon the Act of 25 Car. 2. for preventing Dangers from Popish Recusants Sir Edward Hales Bar t Defendant THE Plaintiff declares That the Defendant after the First day of Easter Term 1673. sc. 28 Nov. 1 Jac. 2. at Hackington in Kent was admitted to the Office of a Colonel of a Foot-Regiment That being a Military Office and a Place of Trust under the King and by Authority from the King. And the Defendant held that Office by the space of three Months next after the 28 Nov. 1 Jac. 2. And from thence till the time of this Action begun he was and still is an Inhabitant and Resident of the Parish of Hackington And the Plaintiff taking it by Protestation that the Defendant within three Months next after his Admission into the said Office of Colonel did not receive the Sacrament in Manner as the Act directs but neglected to receive it Avers that the Defendant did neglect to take the Oaths of Supremacy and Allegiance either in the Chancery or in the Kings Bench or at any Quarter-Sessions in Kent or in the Place where he was resident either the next Term after his admission to his said Office or within three Months after And that the Defendant after such neglect sc. 10 Mar. 2 Jac. 2. at Hackington in Kent did exercise the said Office and still doth contrary to the Statute of 25 Car. 2. for preventing Dangers from Popish Recusants Whereupon the Defendant at Rochester at the Assizes held 29 Mar. 2 Jac. 2. was duly Indicted for such his neglect and for executing the said Office contrary to the said Statute And thereupon duly Convict as by the Record thereof appears whereupon the Plaintiff became entituled to this 500 l. as forfeited by the Defendant The Defendant pleads that the King within the three Months in the Declaration mentioned and before the next Term or Quarter-Sessions after his admittance to the said Office and before his Suit began sc. 9 Jan. 1 Jac. 2. by his Letters Patents under the Great Seal and here produced in Court did dispence with pardon remit and discharge among others the Defendant from taking the said Oaths and from receiving the Sacrament and from subscribing the Declaration against Transubstantiation or Tests in the Act of 25 Car. 2. for preventing Dangers from Popish Recufants or in any other Act and from all Crimes Convictions Penalties Forfeitures Damages Disabilities by him incurred by his exercising the Office of Colonel Or by the Act intituled An Act for the Preserving of the King's Person and Government by disabling Papists from sitting in either House of Parliament Or by the Acts made in the first or third Years of King James the First or the Acts made 5 Eliz. or 23 or 29 or 35 Eliz. And the King by his Letters Patents granted that the Defendant should be enabled to hold that Office in any Place in England or Wales or Berwick or in the Fleet or in Jersey or Guernsey and to receive his Pay or Wages Any Clause in the said Acts or in any other Act notwithstanding non obstante that the Defendant was or should be a Recusant convict As by the said Letters Patents doth appear Whereupon the Defendant prays the Judgment of the Court whether the Plaintiff ought to maintain this Action The Plaintiff demurr'd generally to this Plea. The Defendant joyned in Demurrer Judgment is given for the Defendant THE Order I shall observe in speaking to this Case as to the Point upon the Dispensation shall be this First I shall open this Act of 25 Car. 2.
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
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