prohibited by some Act of Parliament under a Penalty without incurring the Penalty The doing whereof was lawful to all till that particular Law did make it an Offence to do it The Chief Justice Vaughan who argued in his turn the last but one of all the twelve Judges in the late great Case of Thomas and Sorrel and there was hardly a Case in all the Books under that Title but what had been cited by one or other and all the Rules and Distinctions were there remembred yet that Chief Justice after all says that not one steady Rule had been given either by the Books or any of the Judges that argued before him And for that trite Distinction so generally used of Malum in se malum prohibitum the Chief Justice Vaughan professes that Rule hath more confounded mens judgments than rectified them yet he himself gives us no other Which shews that the Notion of Dispensation is not very ancient with us in our Law and is but rare and as yet unform'd not licked into a perfect shape I mean still Dispensations with some Acts of Parliament such as this of 25 Car. 2. not the granting Non obstante's as to mis-recitals or non-recitals in Grants of Lands c. It having yet no steady Rule and yet being frequently used it is the more fit for the Supreme Court to give some certain Rule in it that may regulate and guide the Judgment of Inferiour Courts and this is the proper work of the King and Parliament And because we find it a growing Mischief and getting ground upon the Law and every day brings forth new Precedents it is high time that a stop were put to it So much for the Nature of a Dispensation I shall in the next place endeavour to trace out the Original of this Invention of a Dispensation when it first began and who was the Author of it and shew that it was look'd upon as a Monster and exclaim'd against by Kings and States and all Good Men and yet the Precedent was followed and the Abuse of it spread and increas'd and hath been ever since growing I am not the first that have undertaken to make this discovery In the Argument of the Case of Comendam in Sir Davy's Reports fol. 69. b. It is said that the Non obstante was invented and first used in the Court of Rome and they bring an Author that denounc'd a Woe against that Court for introducing so ill a Precedent mischievous to all Common-wealths in Christendom for the Temporal Princes perceiving the Pope to dispence with his Canons in imitation of him have used it as a Prerogative to dispence with their Penal Laws and Statutes where before they caused their Laws to be religiously observ'd as the Laws of the Medes and Persians which might not be changed Thus says that Report Here we see from whence 't was borrow'd The late Chief Justice Vaughan in his Report of the Case of Thomas and Sorrel fol. 348. does acknowledge that the use of Dispensations was principally derived to us from the Pope Now to make some conjecture about what time it began that we may discover how old it is and which of the Popes was the Author of it The History of the Reformation fol. 101. says this Power of Dispensing with the Laws of the Church by the Popes was brought in in the latter Ages Popes Zozimus Damasus Leo and Hilarius do freely acknowledge they could not change the Decrees of the Church It is suppos'd it was first invented by Pope Innocent the Third about the beginning of the thirteenth Century and about the times of our King John and his Son King Henry the Third and it is observable that in this Pope's time the Doctrine of Transubstantiation was first decreed to be an Article of the Faith and this at the Council of Lateran that Doctrine which by this very Act of ours is to be declar'd against and is now dispens'd with This is that Pope that excommunicated Otho the Emperour and our King John and forced him at last to resign his Crown and to take it back from him again to hold it of him at the Rent of 1000 Marks What good issue can we expect from such a Father After the time of this Pope Dispensations began more frequently to be practised by the Successors of Innocent the Third by Honorius and by Pope Gregory the Ninth and Innocent the Fourth but they were exclaimed against by all Kings and Princes and by all the good and learned Writers of that Age which shews that they had not been ancient and that the Kings and Princes themselves had not then followed the ill example in Dispensing with their Laws for had they done so they could not with any confidence have condemn'd the Pope for using them And we may see how odious these Dispensations were by the vile Epithites the Learned and Good Men of that Age gave them We have a full Relation of it from one of their own Order a Monk but an Historian of very good esteem that is Matth. Paris he tells us that our King Henry the Third sent Earl Bigod and other Nobles to the Council at Lyons and amongst others one William de Powic one of his Procurators and a Clergy-man who made an Elegant Oration ripping up the horrible Oppressions used by the Pope upon England and then deliver'd in an Epistle directed to Pope Innocent the Fourth by the Magnates Universitas Regni Angliae to the same effect After this had been openly read in the Council and a mighty silence followed and the Pope gave no answer to it The King's Proctors Prioribus addebant querimoniam gravem seriam videlicet de violenta Oppressione intolerabili gravamine impudenti Exactione injuria quae per hanc Invisam Adjectionem papalibus Literis frequenter insertam Non obstante c. exercetur per quam Jus pro nihilo habetur Authentica scripta Enervantur says that Historian The same Author says that the Reformation of many things was obtained from Pope Innocent Sed omnia haec alia per hoc Repagulum Non obstante infirmantur ubi vero fides ubi jura quae scriptis solebant solidari Our King Henry the Third conven'd his Parliament and spread before them the Articles of the Grievances which he had so sent to Rome and amongst others one in these words viz. Gravatur Regnum Angliae ex multiplici adventu illius infamis nuncii Non obstante per quem Juramenti religio consuetudines Antiquae scripturarum vigor concessionum autoritas Jura privilegia debilitantur evanescunt We find it frequently termed Detestabilis Adieclio Non obstante and we find the form of his Dispensation running in these words viz. Indulgentia quâcunque vel privilegio quolibet aut Constitutione in Generali Concilio edita Non obstante The Pope afterwards required a third part of the Goods of all beneficed Clerks and
says that Historian Multis adjectis durissimus Conditionibus and amongst other per illud verbum adjectionem detestabilem Non obstante quae Omnem Extinguit Justiciam In another Bull he requires the payment of a Sum of Mony from the English Clergy Quocunque Privilegio seu Indulgentia Non obstante Licet presentes expressam de ipsis non faciant Menconem This very Phrase is grown most familiar in Letters-Patents with us and we see from whence it hath been borrowed That Temporal Princes at that time did not practise the like does evidently appear not only by their frequent Complaint of them but the Historian tells us It was then grievously feared that the Kings and Great Men would in time be infected with the ill Example of the Pope his words are Quod multi formidabant vehementer Ne Principes Laici Seculares exemplo Papae Edocti Non obstante talis vel talis Chartae tenore would revoke their Concessions too Therefore as yet it was not in practice by Temporal Princes no not in Letters-Patents much less in Laws I shall give one instance wherein we shall find the Pope teaching this very Lesson to the King of England K. H. the 3d and instructing him as his Schollar to write after his Copy King H. the Third had made several Grants to his Subjects Bishops Noblemen and others and had oblig'd himself by Oath never to revoke them Pope Gregory the Ninth by his Bull which Mr. Prin who had the keeping of the Records in the Tower says he found in the White Tower under Seal the Pope commands the King to revoke these Grants Juramento Instrument is predictis nequaquam obstantibus King Henry the Third was easily taught this Lesson and did soon put it in practice and being reprov'd by some about him for using of Non Obstante's the King justified himself by the Example the Pope had given him Nonne Papa says he facit similiter subjungens in Literis suis manifeste Non Obstante aliquo Privilegio vel indulgentia But as yet it was not exercised as to Acts of Parliament till a long time after What sad Apprehensions it rais'd in good Men may appear by an Example or two When one of these Patents with a Non Obstante in it was produc'd in the Courts of Westminster one Roger de Thurkeby who was a Judge of the Court of Common Pleas in the time of King Henry the Third upon the hearing of it says the Historian Ab alto ducens suspiria he fetcht a deep sigh and De predictae adjectionis appositione That is concerning this Clause or Addition of Non Obstante Dixit heu heu hos ut quid dies expectavimus ecce jam Civilis Curia exemplo Ecclesiasticae Coinquinatur a Sulphureo fonte Rivulus intoxicatur This plainly shews the time when the use of them was first introduced into England in Civil and Temporal Cases they were not used before the time of King Henry the Third which is not ancient enough to make a Prescription by the Rules of our Law and we see from whence they learnt it I shall now cite the Judgment of a Famous and Learned Bishop of those times concerning these Non Obstante's that of Robert Grostest or Great-head who per excellentiam was generally stil'd no more but Lincolniensis in the Book of his that is Entituled De Cessatione Legalium Publish'd by the late Dean of Windsor Dr. Reeves There are some Testimonies given of the Bishop out of Authors in the beginning of that Book Among others it is remembred of him that he sent a smart Epistle to the then Pope wherein he does cry out upon the Pope for that the Pope's Bulls did superaccumulate as he terms it the words Non Obstante which words says that good Bishop of Lincoln did Christianae Religionis puritatem hominum tranquillitatem perturbare And he does thereupon affirm the Pope to be Antichrist Nonne says he Antichristus merito dicendus est And to prove him to be Antichrist he further charges him Privilegia Sanctorum Pontificum Romanorum praedecessorum suorum Papa impudentur annullare per hoc Repagulum Non Obstante non erubescit sic diruit Reprobat quod tanti tot Sancti aedificarunt When Innocent the Fourth read this Bishop's Letter he fell a swearing by Peter and Paul that he would Confound him In tantam confusionem praecipitaret ut totius mundi fabula foret stupor prodigium And that he would command the King of England whom he there insolently term'd Noster Vasallus a Tenant or Vavasor Et ut plus dicam Mancipium his Property illum nutu nostro in carcerare But the Cardinals then about the Pope advised him to consider better of it for said they Ut vera fateamur vera sunt quae dicit Catholicus est imo Sanctissimus Of this Bishop says Mr. Camden in his Britannia he was Terrificus Papae Regis Redargutor manifestissimus veritatis amator Henry de Knighton adds this of him Ad Innocentium Papam misit Epistolam satis tonantem a thundring Epistle qua de re ad curiam vocatus Excommunicatus appellavit a Curia Innocentii ad Tribunal Christi And this Usurped Power tho' used with more modesty at first yet in a short time it grew to that heighth that it prov'd intolerable and insolent The Bull of Pope Pius the Fourth publishes Decrees Non obstantibus Constitutionibus Ordinationibus Apostolicis Another Dispensation of the same Pope's runs in these words viz. Licet Christus post coenam instituerit sub utraque Specie Panis Vini Venerabile Sacramentum tamen hoc Non Obstante c. The Pope takes upon him to Dispense with that Sacred Institution A conficientibus for so he prophanely expresses it sub utraque a Laicis tantum modo sub Specie Panis suscipiatur In the Oath of a Bishop to the Pope extant in the Roman Pontifical set out by Pope Clement the Eighth the Bishop upon his Oath doth acknowledge amongst other Regalia Petri That the Pope can make void Promises Vows Oaths and Obligations to Laws by his Dispensations Dr. Marta de Jurisdictione affirms That Papa de Plenitudine potestatis potest Dispensare contra jus Divinum contra Apostolum est super omnia Concilia quae interpretatur tollit Corrigit The Glossator upon the Canon Law avowed by the Rota of Rome as the History of the Council of Trent does quote him holds the Pope can Dispense against the Old Testament and the Four Evangelists and against the Law of God. Bishop Jewel in his Defence of The Apology of the Church of England against Harding brings in one of their Canonists that holds That the Pope Privilegium dare potest contra jus Divinum Papa Dispensare potest de Omnibus preceptis veteris Novi Testamenti It is part of the Description given of Antichrist by the Prophet Daniel
to his Crown or Imperial Jurisdiction The Original of this Correction is in Sir Cotton's Library See the History of the Reformation Sir John Fortescu sometime Chief Justice and afterwards Lord Chancellor in his Book De Laudibus Legum Angliae The Civil Law says he runs thus Quod Principi placuit legis vigorem habet sed longe aliter potest Rex politice imperans quia nec Leges sine subditorum assensu mutari poterit Potestas regia Lege Politica cohibetur Sir Edward Coke in his 12 Rep. fol. 63 64 and 65. says It was greatly marvell'd that the Archbishop Bancroft durst inform K. James that such absolute Power and Authority as is there mentioned belong'd to the King by the Word of God and there Sir E. C. cites the Sayings of these ancient Authors in our Law But he says that the King was greatly offended with him A Learned Civilian gives some restraint even to the Lex Regia in this point Vinius in his Comment upon the Instit. fol. 381 Populus Romanus jura Majestatis omnia abdicative in principem transtulit hinc Principes Romani Legibus soluti fuerant But he utterly opposes that Opinion of the School-men Principem Legibus solutum esse quoad vim coactivam sed etiam quoad vim directivam Rot. Parl. 11. R. 2. The King and Parliament declare That the Realm of England never was nor was it intended by the King and Lords that ever it should be governed by the Civil Law. In the deciding of the Great and Royal Controversie in the time of K. E. 1. concerning Right of Succession in the Crown of Scotland it was debated by the Commissioners according to what Law that Case should be determined whether by the Law of England or of Scotland by the Civil Law as being the Jus gentium before the King of England as being the Superior Lord they all at last concluded That the Civil Law by no means should be admitted Ne inde Majestatis Anglicanae Juri fieret detrimentum Seld. dissertatio ad Fletam 539. Mr. Selden mentioning John of Salisbury who said that in his time there were those that did prefer the Civil Law before all other Laws especially that de absoluta principis potestate quae in lege habetur Regia he says it was meant of none but de assentatoribus illius saeculi exgenere Hieratico non de gente Anglicana aut de aliis qui Judiciis tunc praefuere It would have been far from any of the English Nation especially from any of the Judges to have maintained any such Opinion But let it be understood sano sensu and in a proper and literal sence too and it is very true and agreeable to our Law quod Regi placuit legis vigorem habet without the King 's Placet and his Royal Consent nothing is Law amongst us The Laws already in force have had the Consent of his Predecessors and no new Law can pass without the Royal Assent nay they are his Royal Words Le Roy le veut that first gives life to any new Law. And the Judges Oath in the time of H. 3. was that they should judge Secundum Legem consuetudinem regni which words as Mr. Selden there says seem designedly to Exclude the Jus Caesareum then lately brought in whereof as he says some were fond in those times and he tells us of what Order they were but they were not Common Lawyers nor Judges but the Hierarchy But should Judges give countenance to any such Law in the Latitude of it they should be put in mind of what was done by King Edward the Confessor which we are taught by Sir Roger Twisden in his Preface to the Laws of William the First annexed to Mr. Lambert's Treatise De priscis Anglor ' Legibus fol. 155. Omnes says he qui Leges iniquas adinvenerant injusta Judicia judicaverant multaque concilia contra Anglos dederant exlegavit such Enemies to the Laws of England should be put out of the Protection of the Laws of England Rode caper Vitem c. It is said amongst the Laws of King Henry the First c. 28. and it is in the very Body of that Law Lambert ibid. 186. Gravius Lacerantur pauperes à pravis Judicibus quam à cruentis hostibus The Lords of Parliament when any attempt is made to introduce the Caesarean Law as once in the time of our K. H. 3. there was an endeavour to bring in part of the Pontifician Law and it was by the Bishops I make no doubt but they will answer Una voce as their Ancestors then did Nolumus Leges Angliae mutare quae hucusque usitatae sunt approbatae The Statute of Merton c. 9. 2 Instit. fol. 96. The Act of 25 Car. 2. one of the principal Ends and Aims of it is to keep out that Foreign Power that would pretend to a Soveraignty or Supremacy over our Soveraign but the Dispensing with this Law which is maintained to be a Right incident to the Soveraign Prince seems to be the likeliest way of setting up again that Pretence and Claim of a Foreign Bishop which was so long usurp'd and against which Pretence so many Acts of Parliament have been made and which our ancient Kings did of old utterly renounce and disclaim and we know the same Foreign Bishop hath made another Pretence to England besides that Ecclesiastical Power by colour of a Resignation made by King John. But King Hen. 3. Son and next Successor to King John in the General Council at Lyons Anno 1245. by his Embassador and Advocate made a Special Protestation against that pretended Resignation made to Pandolphus the Pope's Legate Innocent the Third as a meer Nullity In quod nunquam consensit Regni Universitas and afterwards upon the Pope's issuing out of Process against K. E. 3. and the whole Kingdom for the Homage and the Arrears of the 1000 Marks Rent due to him The Parliament declared That King John nor no other could put himself or his Realm into such a subjection without their consent And that it was against the Oath King John had taken at his Coronation This Record expounds the word Sovereignty in the true sence of it namely that our Sovereign is no way subject to the Bishop of Rome or to any Foreign Power But it doth no way import that the King can dispose of his People ut placuit Regi or alter the Government without the Peoples consent nor dispence with his Coronation-Oath but proves the quite contrary A Short Argument UPON THE PLEADINGS Of the aforementioned CASE of Sir EDW. HALES THE first Point argued by the Plaintiff's Councel was That it appears by the Declaration and it is now confess'd by the Defendant's joyning Demurrer that the Defendant hath been Indicted for this Offence in exercising the Office of a Colonel without having taken the Tests And upon the Indictment he either did plead this Dispensation or might have
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.
custom to the observance of the same not as to the observance of the Laws of any foreign Prince Potentate or Prelate but as to the customed and ancient Laws of this Realm originally establish'd as Laws of the same by the said sufferance consents and Customs and none otherwise Upon the same ground it is that learned Hooker says that the lawful Power of making Laws to command whole Politick Societies of Men belongs so properly unto the same entire Societies that for any Prince or Potentate of what kind soever upon Earth I use his very words too to exercise the same of himself and not either by express Commission immediately and personally receiv'd from God or else by Authority derived at first from their consent upon whose persons they impose Laws it is no better than meer Tyranny King James the First in his before-mentioned Speech speaks much the same words Laws therefore says Hooker they are not which Publick Approbation hath not made so Approbation may be declar'd says he either by a personal Assent or by others by a Right deriv'd from them as in Parliaments This hath the more Authority being the Judgment in a Point of Religion not of an Historian or Lawyer but of a Reverend Divine and such an one as hath been so great a Champion for Authority and Government and for exact Conformity to Ecclesiastical Laws Some of our late Writers and Preachers have discours'd quite in another strain The Noble Author I just now cited calls the Laws Condescentions and Voluntary Abatements of the King 's Original Power supposing his Power at first was absolute Now that Preamble of that Statute which I just now read is directly contrary in the very word Original Another a certain Lawyer a Knight in a small but bold Treatise of his will by no means allow of any limitation of Power and holds it absurd to say a Government can be mixed or limited A certain Divine and Geographer in his History of the Life of a late Archbishop declares himself much of the same mind with both these and many others have trod since in their steps I therefore thought it very proper and seasonable to shew the Judgment in these Matters of an eminent Divine too a Person in all respects without exception and his Judgment is concurring with all the ancient Authors in our profession of the Common Law who being so learned and so ancient are therefore the most Competent Witnesses of our English Constitution That ancient Author of ours whose Book is stiled Fleta quia in Cartere Fletae de jure Anglicano conscripsit in the time of King Edward the First as learned Mr. Selden has noted in his Dissertatio ad Fletam c. 10. sect 2 3. This Author L. 1. c. 5. tells us Superiorem non habet Rex in Regno nisi Deum Legem Per Legem factus est Rex temperent Reges potentiam suam per Legem Non quod principi placet Legis habet potestatem Non quicquid de voluntate Regis sed quod magnatum suorum Consilio Regia authoritate prestante habita super hoc deliberatione tractatu recte fuerit diffinitum Bracton who was a Judge in the time of King Henry the Third but wrote his Book in the time of King Henry the Second stiles the Laws of England the ancient Judgments of the Just. And Briton Bishop of Hereford who publish'd his Book 5 Edw. 1. by the Command of that King and as written in the King's Name And Sir Gilbert de Thornton who was a Chief Justice in Edward the First 's time and reduced the Book of Bracton into a Compendium And Sir John Fortescu another Chief Justice and afterwards Chancelor in the time of Henry the Sixth writ all to the same effect and almost totidem verbis These Authors discourse altogether of the Imperia Legum as Livy calls it And Laws thus made by an universal consent must needs be most equal and have a far greater veneration paid them by all sorts of men The best men are but men and are sometimes transported with passion The Laws alone are they that always speak with all persons high or low in one and the same impartial voice The Law knows no favourites Hence it is that Aristotle most significantly and elegantly says That the Law is a Mind without Affection that is it binds all alike and dispences with none the greatest Flies are no more able to break through these Cobwebs than the smaller Imperatoria Majestas Legibus armata est says the Introduction to the Imperial Law These are the surest Arms and Guard about a Prince Baldus the great Lawyer says Digna vox est Majestate Regnantis Legibus alligatum principem se profiteri Sir Edward Cook in his 2 Inst. fol. 27. observes that the Nobility of England have ever had the Laws of England in great reverence as their best Birth-right and so says he have the Kings of England as their principal Royalty belonging to their Crown He there mentions our King Henry the First the Son of him that is stiled Conqueror He wrote to Pope Paschal in this manner Notum habeat sanctitas vestra quod me vivente auxiliante Deo dignitates usus Regni nostri Angliae non imminuentur Et si ego quod absit in tanta me dejectione ponerem Optimates mei totus Angliae populus id nullo modo pateretur And fol. 98. there is mention of the Letters which all the Nobility of England by assent of the Commonalty in the time of Edward the First wrote to Pope Boniface viz. Ad Observationem Defensionem consuetudinum Legum Paternarum ex Debito prestiti Sacramenti astringimur quae manutenebimus toto posse totisque viribus cum Dei auxilio defendemus Nec etiam permittimus aut aliquatenus permittemus tam insolita indebita prejudicialia alias in audita Dominum nostrum Regem etiam si vellet facere seu quomodo libet attemptare Sealed with the several Seals of Arms of 104 Earls and Barons And the Noble King Edward the First took no offence at the stout and resolute penning of this Letter but wrote himself to the Pope to the same effect And yet it contains in it a kind of a Non obstante to what the King should do by way of submission and compliance with the Pope Nor is a Just Law any restraint to a Just Liberty it rather frees us from a Captivity and Servitude viz. to that of our Wills and Passions It is true this obligation and binding of the Law is very uneasie to such Men as will be slaves to their Lusts and Appetites They cry out let us break these Bonds asunder and cast away these Cords from us but to such as are virtuous and just and pious the Laws are a Direction and Protection The Orator truly says Legum id circo omnes servi sumus ut liberi esse possimus The true English of
which is that such service is perfect freedom Hence our English Laws in Magna Charta are called Liberties Concessimus omnibus hominibus regni nostri has libertates subscriptas says King Henry the Third in the first Chapter of Magna Charta which Sir Edward Cook expounds to be meant of the Laws of England quia liberos faciunt says he And tho' this Statute of Magna Charta run in the stile of a Grant from the King in the word concessimus for the honour of the King yet as he says they were the Common Laws and Rights of the People before and it was made by the King Lords and Commons as is recited by the Statute of 15 Ed. 3. c. 1. Thus it appears what the true Nature and Properties of a Just Law are of how great Force and Authority a Law ought to be how dear and precious Laws have been heretofore to Prince and People and whence they have their Birth and Original Thirdly I come now to that Notion or Invention of a Dispensation the Power of relaxing or dispensing with a Law and enquire into the Original and Nature of it and the great Mischief that hath arisen from it The Pretence for the Use or Need of a Power of Dispensing is this viz. There is no Providence or Wisdom of Man nor of any Council of Men that can foresee and provide for all Events and variety of Cases that will or may arise upon the making of a new Law. But a new Law may sit heavy upon some particular persons or in some extraordinary Case that may happen let what care can be taken in the penning of it It is enough to commend a Law if it be beneficial to the greater number and be for the publick good Laws are fitted Ad ea quae frequentius Accidunt and not for rare and extraordinary Events and Accidents as the Romans had no Law against Parricide And the Law says better is a Mischief than an Inconvenience By a Mischief is meant when one Man or some few Men suffer by the hardship of a Law which Law is yet useful for the Publick But an Inconvenience is to have a Publick Law disobey'd or broken or an Offence to go unpunished Now from this suppos'd and imaginary defect of Law or some particular mischief or hardship sometimes tho' very rarely happening to some Men which hardship was not foreseen by the Makers of the Law altho' this is oftner pretended and feigned then hapning in truth occasion hath been taken to assert a Power in the Prince or chief Ruler to dispence with the Law in extraordinary Cases and to give ease or relaxation to the person that was too hard bound or tied to a Law for as I observ'd before the Law is of a binding and restraining nature and quality It hath the same specious pretence as a Law made 31 H. 8. c. 8. had which was of most desperate and dangerous consequence had it not speedily been repealed by the Statute of 1 E. 6. c. 12. The Title of that mischievous Act of 31 H. 8. is this An Act that Proclamations made by the King's Highness with the Advice of the Honourable Council meant of the Privy Council shall be obey'd and kept as tho' they were made by Act of Parliament The Preamble recites the King by Advice of his Council had thentofore set forth sundry Proclamations concerning Articles of Religion and for an Unity and Concord to be had among his Subjects which nevertheless many froward wilful and obstinate persons have wilfully contemned and broken not considering what a King by his Royal Power may do and for lack of a direct Statute and Law to coherce Offenders to obey those Proclamations which being still suffered should encourage Offenders to the disobedience of the Laws of God and sound too much to the great dishonour of the King 's most Royal Majesty who may full ill bear it Considering also that sudden Occasions fortune many times which do require speedy Remedies and that by abiding for a Parliament in the mean time might happen great prejudice to ensue to the Realm and weighing that his Majesty which by the Regal Power given him by God may do many things in such Cases should not be driven to extend the Supremacy of his Regal Power by wilfulness of froward Subjects It is therefore thought necessary that the King's Highness of this Realm for the time being with the Advice of his Council should make Proclamations for the good Order and Governance of this Realm of England Wales and other his Dominions from time to time for the Defence of his Regal Dignity as the Cases of Necessity shall require Therefore it is enacted that always the King for the time being with the Advice of his Council whose Names thereafter follow and all the great Officers of State are mentioned by the Titles of their Offices only for the time being or the greater number of them may set forth at all times by Authority of this Act his Proclamations under such Penalties and of such sort as to his Highness and his Council or the more part of them shall seem requisite And that the same shall be obey'd as tho' they were made by Act of Parliament unless the King's Highness dispence with them under his Great Seal Here at one blow is the whole Legislative Power put into the King's hands and there was like to be no further use of Parliaments had this continued Then there follows a Clause that would seem to qualifie and moderate this excess of Power but it is altogether repugnant and contradictory in it self And the Conviction for any Offence against any such Proclamation is directed not to be by a Jury but by Confession or lawful Witness and Proofs And if any Offender against any such Proclamation after the Offence committed to avoid the Penalty wilfully depart the Realm he is adjudged a Traytor And the Justices of Peace are to put these Proclamations into execution in every County And by another Act of 34 and 35 H. 8. c. 23. Nine of the Great Offices are made a Quorum c. for they could not get half the number to act under it The Act of 1 E. 6. c. 12. which repeals the terrible Law begins with a mild and merciful Preamble and mentions that Act of King H. 8. which as this Act of E. 6. does prudently observe might seem to Men of Foreign Realms and to many of the King's Subjects very strict sore extream and terrible this Act of King E. 6. does therefore by express mention of that Terrible Act wholly repeal it And so that Law to use the Lord Bacon's phrase was honourably laid in its Grave And God grant it may never rise again It is very probable that this Terrible Law was drawn by King Henry the Eighth's own hand by that expression in it that the King may full ill bear the Disobeying of his Proclamations and the dishonour done to him by it and by several
evident that the King had no such Power or Prerogative of continuing Sheriffs in their Offices longer than a Year For under favour the Making of Sheriffs doth not nor never did belong to the King neither at the Common Law nor by any Act of Parliament so that all these Opinions and Resolutions are built upon a sandy Foundation and have but debile fundamentum and they take that for granted which is not a truth The Election of Sheriffs at the Common Law even from the very first Constitution of the Kingdom and by the Original Institution of the Government was in the Freeholders in the several Counties ever since there was any such Office as a Sheriff and ever since the Kingdom hath been divided into Shires that is in the time of the Saxons from whom we derive most of our Common Law and long after their time in the time of the Normans till being neglected by the Freeholders it came at length by an Act of Parliament made within the legal time of Memory to be taken from the Freeholders and the Power of Naming and Chusing Sheriffs every Year lodged in the hands of certain great Officers of State and so it continues to this day but neither is nor never was in the King. Mr. Lambard in his Book de Priscis Anglorum Legibus in his Lemma de Heretochiis fol. 147. says that those Heretochii were Ductores exercitus Here signifying an Army in the Saxon Tongue The same as in the Dialect of this present Age may be called Lord-Lieutenants or Deputy-Lieutenants The Law of King Edward which I take to be the Confessor speaks of these Heretochii in these words Isti vero viri Eligebantur per Commune Concilium pro Communi utilitate regni per provincias Patrias Universas per singulos Comitatus in pleno Folkmote sicut Vice-Comites Provinciarum Comitatuum Eligi debent This Law mentions this Election as an Use and Custom If the King did not make the Sheriff he could not continue him Sheriff if he could not make him for a Year he could not grant him the Office for longer than a Year the Sheriff had his Authority and Office from the Election not by Commission or Patent and that but for a Year Sir Edward Coke in his Second Institutes in his Exposition of the Statute of Westminster 1. Cap. 10. concerning the Election of the Coroners by the Freeholders which ever was so and so still continues says there is the same reason for Election of Sheriffs and so says he it anciently was by Writ directed to the Coroners In like manner were the Conservators of the Peace chosen in whose place the Justices of the Peace now succeed and so the Verderors of the Forrest are to this day These were great and high Liberties and did belong to the Freeholders from all antiquity and are strong Arguments to confute those late Authors that will by no means allow of a limitted Government but leave us under an Absolute and Arbitrary Power and who call our Laws and Liberties but the Concessions and Condescensions from the Regal and Absolute Power Sir Edward Coke discourses largely of these Elections in his Exposition of the Statute of Articuli super Chartas in his Second Institutes or Magna Charta fol. 558. By this Statute it is said the King hath granted to his People that they have the Election of their Sheriff in every County where the Sheriff is not of Fee if they will. Sir Edward Coke says by this Act that ancient Right the People that is the Freeholders had was restor'd to them and the words if they will import that they formerly had it but neglected it By a Statute made in the next King's Reign viz. 9 E. 2. styled The Statute of Sheriffs upon pretence that insufficient persons were commonly chosen for Sheriffs by that Act it is ordained that from thenceforth the Sheriffs shall be assigned by the Chancellor Treasurer Barons of the Exchequar and by the Justices And by the Statute of 14 E. 3. c. 7. some change is made of the persons that are to have the Election and the Day and Place of such Assigning of Sheriffs is prefix'd viz. yearly in the morrow of All-Souls and in the Exchequer By the Statute of 12 R. 2. c. 2. the Assigning of the Sheriff is put into the hands of more great Officers who are to be sworn to execute this Trust faithfully but it is not vested in the King all this while nor never was It is true that out of Reverence to the King these great Officers who had the Assigning of Sheriffs did afterwards use to name three persons out of which number they left it to the King to chuse one for every Shire But this was more out of deference to the King than out of any strict Obligation so to do and the Election made by the King was in Law to be accounted an Assignment by these great Officers Nor could the King chuse any other for Sheriff than one of those three so Assigned by those great Officers tho' it is sometimes otherwise practis'd And this hath been a Resolution of all the Judges of England and is mentioned in Sir Coke's Second Institutes fol. 559. it was in the 34th Year of Henry the Sixth and it is in these words viz. That the King did an Error when he made another person Sheriff of Lincolnshire then was chosen and presented to him by those great Officers after the effect of the Statute So that the right of Electing Sheriffs by those great Officers we see continued so lately as the latter end of King Henry the Sixth and I know of no Law since that hath alter'd it therefore we may conclude it is no Prerogative in the King. And we may further observe what plain Language all the Judges used in those days as to tell the King and the Lords of the Council that the King had erred in what he had done I observe this the rather that it may be some excuse to me for the plain Language I am forced to use in the Arguing upon this Subject The Lawyers are not always Courtiers nor will the Subject-matter bear Complements and Courtship Ornari res ipsa negat contenta doceri I cannot reconcile this Resolution of the twelve Judges given in the time of King Henry ths Sixth with that Opinion that is deliver'd in the Lord Dyer's Reports fol. 225. b. and it is but an Opinion 5 6 of Queen Elizabeth In the time of the Plague the Sheriffs were named and made without assembling the Judges ad Crastinum Animarum at the Exchequer according to the common usage but for the most part none was made but one of the two that remain'd in the Bill the last Year Tho' it was held says the Report that the Queen by her Prerogative might make a Sheriff without such Election by a Non Obstante aliquo Statuto in contrarium which crosses the Resolution I
delay Common Right and tho' such Commandments do come the Justices shall not therefore leave to do right in any point Grotius ubi supra 117. Antiochus the third sent a Rescript to the Magistrates that they should not Obey him in case he should command any thing against Law. And Constantine published the like That Orphans and Widows be not constrained to come to Court for Justice no not if the Emperor's Rescript be shewed In the story of Daniel we read that King Darius signed the Writing and the Decree which indeed was but a snare laid for Daniel and Daniel had fallen into the snare The King was his friend but could neither dispence with him nor pardon him tho' he were sore displeased with himself for signing the Decree And the King set his heart on Daniel to deliver him and he laboured says the History an whole day till the going down of the Sun to deliver him he wanted such Judges as Cambyses had to find out an Evasion But the King himself sealed the stone that was laid upon the mouth of the Den with his own Signet and with the Signet of the Lords that the purpose might not be changed concerning Daniel Nihil opus est says a learned Author writing of the Government of England Licentiam dominandi in Rege Coerceri quoniam quicquid in administranda rerum summa vel contra Patriae leges vel minus ex populi commodo gestum fuerit Id omne Ministris Luendum rejicitur Adeo ut non ab adulatione sed ab aequitate summa fluxerit Notum Axioma apud Nostrates Rex Nunquam potest Errare aut cuiquam injuriam facere Quippe in Administros Conciliarios quorum est Admonere Principem iniqua volenti denegare operam aut officio renunciare potiusquam contra Leges quicquam jubenti parere tam culpa omnis quam paena derivari solet debet And we have seen Examples of such in our times many that have left good Places rather than act against their Judgments There is a rare Example of this in the French History Lewis the Eleventh King of France at the Pope's importunity had signed a Concordate for setting aside the Pragmatical Sanction which was made in defence of the Liberties of the Gallican Church and the King had undertaken to the Pope that his Parliaments should approve of what he had done and the King sent a Command to the Parliaments accordingly and required them to give a punctual obedience to his Order The King's Advocate Johannes Romanus argued stoutly against it and being threatned to be turned out of his Place for his pains he said The King had freely bestowed that Office on him and he would discharge it faithfully as long as the King thought fit to continue him in it and should be ready to lay it down whenever it pleased the King But he would suffer all things rather then do any thing against his Conscience or the King's Honour and the good of the Kingdom and out he went. It will be admitted by those that argue for the Prerogative of Dispensing that tho' the King without the Parliament cannot dissolve nor repeal no nor so much as suspend the Law totally tho' but for a time but he may dispence with it as to some particular persons and for some limited time and so the Law will still remain in force against all others Those that will argue thus do yet hold that the King is the sole Judge who are to be dispensed with so that he is not limited to any number nor to any time so that tho' he may not in the gross dispence with the Law yet he does the same thing by retail which comes all to one or it is in his Royal Will and Pleasure to do so We are nothing beholding to the Judges if the King uses his Prerogative with moderation According to that sort of Argument that is called Inductio which is a particularibus ad Universalia progressus He that can dispence with A B C and so with the 24 Letters one by one does in truth dispence with the whole Alphabet but he must not do it Uno Ictu And we find it by Experience What signifie those several Acts of Parliament that forbid a Judge of Assize to Execute that Office in the County where he was born or dwells they are easily and daily dispens'd with How many Acts have been made against pardoning of Murder and to make void such Pardons and what fruit have they had Let us hear a learned Judge plainly speaking his experience and his mind in it Stamford in his Pleas of the Crown fol. 101. says that tho' there are words to null and make void these Charters of Pardon yet by putting into the Charters of Pardon these words viz. Non Obstante aliquo Statuto in contrarium Edito the force of these Statutes is taken away and not only of these says he but also of all others in which this Clause of Non obstante is put and it is put says he in every Letters Patents And fol. 102. he says that the Statute of 13 R. 2. Stat. 2. c. 1. and the rest of the Statutes to the same effect have always been destroy'd by that Clause of Non obstante and so false Suggestions have continued says he to this day without redress and abound from one day to another to the great detriment of the Publick Weal and do not cease till Princes have more regard what Charters they pass and he might have added till the King's Attorney and Council at Law shall have more Fidelity and Courage I hear that in justification of such a Dispensation as this it was said in the Argument of the Case of Sir Edward Hales in the Court of King's-Bench That there is no Law whatever but may be dispensed with by the Supreme Law-giver as the Laws of God may be dispensed with by God himself as appears by God's command to Abraham to sacrifice his Son Isaac So likewise may the Laws of Man be dispens'd with by the Supreme Legislator I fully agree to this and have already argued upon this ground That the Legislators and no other can dispence with their own Laws and I have given several Instances and Examples wherein it was so practised that is by King and Parliament But does this justifie the present Dispensation now in dispute I agree the King hath a great and most eminent part in the Legislature and in the passing of Laws it is he that quickens the Embrio and first gives it Life but under favour and with all due Reverence to the King I may affirm it That the King hath not the sole Legislature such as Almighty God hath over his Creatures but the whole Kingdom hath a share in that Power as I have fully proved as well as the King. I would cite one Case not so much to prove what I have said herein but rather to illustrate it It was a Case
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