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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
father_n	john_n	son_n	spirit_n	18,006	5	5.9361	4	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A26174	The Lord Chief Justice Herbert's account examin'd by W.A., Barrister at Law, ... ; wherein it is shewn that those authorities in law, whereby he would excuse his judgment in Sir Edward Hales his case, are very unfairly cited and as ill applied.	Atwood, William, d. 1705?	1689 (1689)	Wing A4176; ESTC R2780	39,888	80

Case and the Judges go upon these Grounds 1. That the Kings of England are Sovereign Princes 2. That the Laws of England are the King's Laws 3. That therefore 't is an Incident inseparable Prerogative in the Kings of England to dispense with Penal Laws in particular Cases and upon particular necessary Reasons 4. That of those Reasons and those Necessities the King himself is sole Judge And then which is consequent upon all 5. That this is not a Trust invested in or granted to the King by the People but the ancient Remains of the Sovereign Power and Prerogative of the Kings of England which never yet was taken from them nor can be And therefore such a Dispensation being pleaded by the Defendant in this Case and such a Dispensation appearing upon Record to come time enough to save him from the Forfeiture Judgment ought to be given for the Defendant quod querens nil capiat per billam 'T is evident that these Propositions are very wide from any thing he has or could have urg'd from the Books unless where a Brand of Infamy has been set upon the Judges The Examples of which made in several Ages one would have thought might have given sufficient Caution yet indeed he might have had enough of this kind from those of the other Gown who I think are now pretty well asham'd of these Notions Whatever Power of Dispensing the King has the Books suppose it to be entrusted by the People but according to this Resolution it came down from Heaven the Lord knows how And as he goes upon the Supposition of an Absolute Sovereignty in the King inseparable from his Person as such will have it unless that be granted all that he builds upon it are but Castles in the Air For this we are to have recourse to our Constitution to see what that Power in the Prince is which the great Fortescue says is à populo effluxa deriv'd from the People But for that we have no occasion from any so much as pretended Proof of his Assertions nor can any be offer'd but from the Resolution of the infamous Ship-money-Judges which seems to run parallel to this but is indeed far short of it For tho' they made the King the sole Judge of the Kingdom 's Necessity yet they suppos'd it to be at a time when there was a real Danger to be prevented by the exercise of this Judgment whereas here it is abus'd to the bringing in what the Parliament labour'd to prevent But I must observe 1. That whereas Sir Edward Herbert owns the Dispensing Power to be of dark Learning and that it is very fit it should receive some Light from a Determination in Parliament that Judges may judge by more certain Rules which Acts of Parliament the King may and which he may not dispense with Grant his Premisses and there can be no Darkness in it for the Power will extend to all Cases as far as the Legislative does and that he has determin'd positively in this Point when he makes all things not forbid by God's Law to be dispensible by the King nay if he might dispense with every malum prohibitum that is not malum in se without such Qualification as I have shewn ought to be it would go farther even as far as God's Power who never dispenses with more than his own Positive Laws not such as are founded upon Eternal Reasons And thus the Positive Laws of God and Man would be subject to the Pleasure of the Prince 2. He has taken it out of the Power of the Parliament to settle the Bounds of this extravagant Power For what he ascribes he says never was taken from the Crown nor can be because forsooth 't is the ancient Remains of the Sovereign Power and Prerogative of the Kings of England Wherein by the way there is an Implication contrary to what he would infer for this implies that 't is but the Remains of a Power diminish'd and impair'd 3. His printed and parol Resolutions are not onely very different as is obvious by the Comparison but very contrary One says 'T is a dark Learning the other The Case is as clear as ever came before the Court. Tho' his Insincerity is sufficiently evident from every part of his Defence yet it may not be unprofitable for the Publick that he should be follow'd to those Instances in which he glories for which 't is not enough for him to shew some one Act wherein he is singular if he follows the multitude to sin in others even of the same kind which if he does he can no more acquit himself of Perjury and breach of Trust than the rest of the tainted Herd In Matters of Blood he affects the Reputation of great Tenderness and thinks he has been scrupulous ev'n to a Fault For says he in some Cases upon Statutes that had been adjudg'd Felony by wiser and better Judges than my self and it was highly for the King's Service that it should be so yet I would never give Judgment of Death because I could not satisfie my Conscience that those Statutes were now in force It is a Fault it seems not to give Judgment against his Conscience when the narrow Interest of the Court exacts it and other Judges influenc'd from thence would countenance it But we may observe that those Statutes concerning Soldiers of which he is to be understood not onely give no Warrant for such Judgment as is obvious to the meanest Capacity but if they could admit of any Question the unbiass'd Judgment of the then Recorder of London Sir John Holt ought to outweigh the whole Bench. But I wish our Chief Justice could as well acquit himself in the Case of the Lord Brandon The Fathers Heroick Merits of the Crown too great to be rewarded and the Son 's Hereditary Valour dangerous to those who had reason to fear brave Spirits occasioned the rigorous Prosecution of both The Father was oblig'd to change his Soil till it might become more equal not unmindful of our Saviour's Advice or rather Precept when persecuted in one country to flee into another that tho' he contemn'd Death he might not provoke it The Son falling into their Hands both his Life and Honour which the severest Trials approv'd to be most valu'd by him were design'd for a Sacrifice In subserviency to which our Chief Justice directed the willing Jury to find him guilty of High-Treason chiefly upon a suppos'd Conspiracy to seise the Castle of Chester which if true were but Felony by a Statute as to that part yet in force and so could be no Evidence of Treason Nor would he suffer the Fact to be found specially tho he pretended not to answer the Cases and Records which were cited to shew that the Matter alledg'd could not be Treason nor did the then Sollicitor undertake the Task notwithstanding that shew of Reasoning with which he labour'd to set aside the

the thing lawful nor could this in the least be inferr'd from the other because however an Act may be made void or tortious Indeed in the Reign of R. 3. whose Character blemishes the Judgments of his time it was held by all the Judges in the Exchequer-Chamber that the King might license the shipping of Wooll elsewhere than at the Staple yet even they were not of Opinion that the License made the thing lawful for then the Discoverer could not have had his share which they agreed that he ought to have and so the License was only as far as it concern'd the King. They also setled the other Point which before was a Doubt That a Pardon before an Information brought would defeat the Informer But then the Authority of the first Point is suspended by a Doubt remaining before all the Judges afterwards assembled upon a rehearing of this Cause in a more setled time Indeed they agreed the other of an Information after a Pardon but hitherto there is no manner of Proof of any Case wherein the King by his Dispensation could discharge the Penalty given not only to himself but also to an Informer who has his Action given by Statute But for this we must take a Leap downwards as far as 13 Jac. 1. which we may ballance with the 7th of his Reign when it is held by Lord Cook That where a Statute concerns the Benefit of the King alone he may dispense with it by a Non obstante And BY THE COURT that where it concerns the Benefit of the Subject the King cannot dispense 7. Whereas our Chief Justice thinks that a Statute's providing against Non obstante's shews that the King could otherwise have dispens'd with the Act by a Non obstante it is not onely unconcluding because it might be no more than an Argument of an Abuse of the Law but turns very strong against him For admit the Resolution of the Judges 2 H. 7. were as he contends yet he who makes so much of a Concession of the Commons of England assembled in Parliament when he thinks it of his Side ought surely to yield that the Judgment of King Lords and Commons is of uncontrollable Authority Wherefore when not only one but several Parliaments provide that all Non obstantes shall be void is it not plain that their Judgment was that such Non obstantes could not be set up by any Resolution of Judges And for this we have the Judgment of King Lords and Commons and that of but late days That even where a Grant is made to the King where 't will be said he is solely entrusted for the Publick Good yet it may be out of his power to defeat it by a Non obstante This appears by the Statute 19 Car. 2. c. 8. which provides That no Letters Patents granted to any Person of Exemptions from Subsidies c. shall free them from the Charges of any Sum granted by that Act and all Non obstantes in Letters Patents made or to be made in bar of any Act or Acts of Parliament for the Supply or Assistance of his Majesty are thereby declared to be void and of none effect And even where Statutes have not expresly provided against Non obstante's tho' the Statutes were such as restrain what many take to be the King's Prerogative yet if we receive the Sense of Lords and Commons the King has no Prerogative warranting Non obstante's to them as appears by the Articles against King Richard the Second one of which is For that the King contrary to the Laws and Wills of the Justices suffer'd Sheriffs to continue longer than one Year c. This were enough to set aside all Pretences taken from Calvin's Case tho' as Sir Edward Herbert pleasantly suggests it were resolv'd there That that was resolv'd 2 H. 7. which was never mention'd till after the Resolution Here is the Authority of Lords and Commons in competition with that of Mercenary Judges And if the Concessions of the Commons alone assembled in Parliament are of weight with him I know not why their Denials ought not as well to be urg'd against him which if we may do not onely the Fictions and loose Reasonings in Calvin's Case but the main Resolution there may be justly call'd meer Court-Law Such I am sure it is that the honest House of Commons 4 Jac. 1. would not bear it and any one that reads the Arguments of those Learned Men who manag'd the Conference with the Lords upon the Question of the Union of the two Kingdoms may easily see how inexcusable the Judges of that time were to proceed to the Judgment in Calvin's Case after they had been so enlightned Nor could they but know that the then Parliament was broke up because they were not so complying as the Judges shew'd themselves both then and afterwards But they secur'd their Cushions by it while Sir John Bennet Father of the present Lord Oswalston lost his in the Prerogative-Court and had a swinging Fine impos'd upon him into the Bargain several Years after upon pretence of Extortion but as I am well inform'd the real ground was his disrellishing Speech in Parliament upon this Subject 'T is well known some Princes us'd to have good Memories that way Manet altâ mente repostum c. 8. Non obstante's having no other Foundation than in the Encroachments of Princes and Servility of Judges especially if we except Cases concerning the King alone they ought not to be strain'd to any new Case The Advice of Bracton will rise up in Judgment against such Men who tells them If such things never hapned before and the Judgment is without Light from former Cases and difficult let it be adjourn'd to the Great Court. According to which Adjournments to ensuing Parliaments have been frequent in former days when there were more Learned Judges and that as often for the weightiness of the Matter as intricacy of the Points 9. But for the closing Aggravation Whereas our Chief Justice denies all indirect means for procuring Opinions and stands upon his Innocence challenging the World to lay any thing of that kind to his charge I think by this time few will the less suspect him because of his Assurance if either Threats or Sollicitations can be prov'd upon him the World will judge either of them indirect Means and I am much misinform'd if both cannot be justly charg'd If after all he can excuse himself with renouncing Infallibility and making Asseverations of keeping to the clear Dictates of his Conscience I must say Judges in former Ages have had hard luck and been made Examples to little purpose King Alfred would lose the Reputation of his Justice in hanging above thirty Judges and Parliaments have been very barbarous to proceed against others as Traytors who yet either were so ingenuous to confess their Faults or at least not so provoking as to