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
1 Hen. 4. num 91. that Judgment against Sir Thomas Haxey was revers'd As for the distinction pag. 30. of a Disability actually incuri'd before the medling in an Office and where the Disability is prevented by the coming of a Dispensation I answer That its being so prevented is but Peticio Principii and a begging of the Question And to this Distinction I have I think fully spoken in the foregoing Argument fol. 40. The late Parliament in making this Act of 25 Car. 2. had no doubt a prospect that probably the Crown would discend upon a Popish Successor and they levelled this Act against the Dangers that might then befal our Religion and Liberties and they thought it a good Security But it is all vanished and come to nothing by occasion of this Judgment in the Case of Sir Edward Hales And that must be justified by a Fiat Justitia As to the Objection that the Chief Justice fancies might have been made against him or advice given him that he should rather have parted with his place than to have given a Judgment so prejudicial to the Religion he professes pag. 33. This I say that for my part I should never have advis'd him to have parted with his Place much less to have given a Judgment against his own Opinion But let his Opinion be what it was yet seeing the clear intention of the Makers of the Law contrary to that his Opinion and knowing the desperate effects and consequences that would follow upon dispensing with that Act for we were upon the brink of destruction by it and taking notice as this Chief Justice and the rest of the Judges needs must that the King had first endeavour'd to have gain'd a Dispensing Power in thismatter from both Houses which was the fair and legal course and that yet that very Parliament which out of too great a compliance with those times had over-look'd so many Grievances and conniv'd at the King 's taking and collecting of the Customs though in truth the Collectors and all that had any hand in the receiving of them incurr'd a Praemunire by it not to mention the ill Artifice used in gaining the Excise yet that Parliament of the King 's boggled at the Dispensing with the Act of 25 Car 2. knowing the mighty Importance of it And though they could not but take notice that so many Judges at once had been remov'd because they could not swallow this Bitter Pill and others brought into their places as might be justly suspected to serve a Turn and the King 's Learned Councel could not at first find out this Prerogative to do his work with till so many ways had been attempted and all proved ineffectual sure in such circumstances it had been Prudence nay the Duty of the Judges to have referr'd the determination of it to a Parliament and the rather because it was to expound a Law newly made and the consequences so dreadful and the intent of the Law-makers so evident And this hath been frequently practis'd by Judges in Cases of far less difficulty and concernment This I have also enlarged upon in my Argument page 26. Object But it might have been a long time before any Parliament had been called Answ. We ought to have Parliaments once a year and oftner if need be and eadem praesumitur esse mens Regis quae Legis and we then stood in great need of a Parliament even for the sake of this very Case And these hasty Judgments are one ill Cause why Parliaments meet no oftner the Work of Parliaments is taking out of their hands by the Judges And it is the Interest of some great Officers that Parliaments should not be called or else be hastily prorogu'd or adjourn'd As to the point of the feigned Action which the Lord Chief Justice seems to justifie I conceive he mistakes the force of the Objection Feigned Actions may be useful but this Action against Sir Edward Hales is suspected not only to have been feigned and brought by Covin between him and his Servant and Friend but it was feignedly and faintly prosecuted and not heartily and stoutly defended Like the practice of common Fencers who play for a Prize they seem to be in good earnest and look very fierce but agree before-hand not to hurt one another Qui cum ita pugnabat tanquam se vincere Nollet Aegre est devictus proditione suâ This solemn Resolution was given upon a few short Arguments at the Bar and without any at the Bench and upon other Reasons as I have heard which were then made use of are now given by the Chief Justice but the Times will not now bear them After all I intend not by this to do the Office of an Accuser nor to charge it as a Crime But as I think my self bound in Duty on the behalf of the whole Nation of my self though a small part and member of it and of my Friends I humbly propose That the Judgment given in Sir Edward Hales his Case may after a due Examination if there be found cause be legally Revers'd by the House of Lords and that Reversal approv'd of and confirm'd by a special Act of Parliament FINIS Declaration Plea. Order The Act of 25 Car. 2. Of the Law in general Of a Dispensation Of this particular Act of 25 Car. 2. Dangers from Papists to the Protestants The Test. Judgment given by Parliament The Pishop of Winchester's Collections Of Law in general Laws made by consent of the People * Grotius de Jure Bell. pacis f. 151. †King James the Firstin his Speech to the Lords and Commons at White-hall 1609. f. 531. 25 H. 8. c. 21. ‖ Leges nulla alia causa nos tenent quam quod judicio populi receptae sunt Ulpian de Lege 32. Tum Demum Leges humanae habent vim suam cum fuerint non modo institutae sed etiam firmatae approbatione Communitatis Sir Wal. Ral. in his Hist. of the World 245. * Fol. 531. Mr. Hooker Fol. 17. Non eget Mauri jaculis nec Arcu The original of Dispensation Instances of Dispensation The Definition of a Dispensation The Original of Dispensation * Marsilius Patavinus in the 14 Cent. of Padua in his Defensor pacis It s Antiquity ‖ Dr. Barrow of the Pope's Supremacy 316. See there the unreasonableness of Dispensations †Anno 1215. Pag. 646 647. Mat. Paris p. 677. * Sir Cotton's Abridgment of the Records of the Tower amongst the Petitions of the Commons 51 E. 3. Numb 62. Dispensations from Rome are said to be the chief Grief Prinn's Second Tome Fol. 504. Ibidem 760. Innocent 4th * Dr. Barrotti in the Pope's Supremacy 31. L. 3. c. 3. sect 10. Fol. 39. * Sir Ed. Coke 2 Inst. 27. No Law or Custom of England can be annul'd but by Act of Parliament Selden's Dissertatio ad Fletam 539. Fol. 775. The King and Parlialiament have the Power of Dispensing The Statute of Dispensation The Preamble No Prescription The time of Limitation in a Writ of Right is limited to the time of R. I. Where the true Power of Dispensing resides 15 R. 2. nu 8. 2 H. 4. nu 26. R. 2. nu 22 17 R. 2. 34. 2 H. 4. nu 63. * Hob. 157. at the lower end It is the Office of Judges to advance Laws made for Religion according to their end tho' the words be short and imperfect †Sir Ro. Cott. Abridg. 1 R. 2. nu 95. 2. Inst. 408. * 39 E. 3. 21. 40 E. 3. 34. Objection * 12 H. 7. 19. Plowden 319 322. * Sir Moor's Reports 239. Warram's Case A Prerogative that tends to the great prejudice of the Subject is not allowable Croke Jac. 385. The same Case * 14 E. 3. c. 7. That by their trusting to tarry in their Office by procurement they are encouraged to do many Oppressions to the People 28 E. 3. c. 7. 42 E. 3. c. 9. 1 R. 2. c. 11 †Sir Cotton's Abr. 18 E. 3. nu 54. Objection Answer * 1 H. 4. c. 6. †11 E. 3. c. 1. 13 H. 7. 8. by Daver 's Letter B. Answer * See 13 H. 7. 8. by Daver's Letter B. Election of Sheriffs by the County Fol. 174 175. 28 E. 1. c. 8. chap. 13. See the Reports of E. 2. in t ' Memoranda Scac ' fo 28. * Sir Rob. Cot. Abr. 18 E. 3. nu 54. See the Stat. of 6 H. 8. c. 18. in the Statutes at large concerning the Under-Sheriff of Bristol 9 H. 5 c. 5. * Palmer's Rep. 451. Dr. Burnet's Hist. of the Rights of Princes 239. K. James in his Promonition to all Christian Monarchs 298. Objection Answer Objection Answer 8 R. 20. Answer Argument Answer Or Tributary L. 1. C. 5. †K. James 1. in his Speech to both Houses 1609 in his Works fol. 533 says the King with his Parliament are absolute in making or forming of any sort of Laws Sir Rawleigh's Hist. of the World fol. 245. ‖ Archbishop Laud too did the like Seld. Dissert 539. Seld. Dissertat ad fletam fol. 537. Pryn's Second Tome fol. 290 292 299. 301 302. 46 E. 3. Rot. Parl. nu 7. 8. Object Estoppel Answ. Object 2. Here is no Estoppel Answ. A Stranger may take the advantage of this Estopp 7 E. 4. 1. Br. Estoppel 163. Knoil Heymor's third Kebk 528. by Chief Justice Hale That a Stranger cannot falsifie a Verdict Rol. Abr. first part 362. Dr. and Stud. 68. à ad fin b. Object 2. Answ. A dependant Action An Action dependant or collateral * Jaques versus Caesar. And Dr. Drury's Ca. 8 R. 142. And Mackaelly's Ca. 9 R. 68. 1 H. 4. c. 6. Pag. 10.
So also as the Commons may disagree thereunto at the next Parliament with this Protestation too that this their Assent being indeed a Novelty these are the very words be taken for no example This is granted with abundance of caution and jealousie and proves it is not ancient The Commons do agree to the Power granted to the King for the Moderation of the Statutes touching Provisors in the last Parliament beseeching the King that the same may not license any Cardinal or Stranger to enjoy any Benefice within the Realm It was enacted by the Lords and Commons that Tydeman late Abbot of Beaulew and Elect of Landaf by the Pope's provision should enjoy the same Bishoprick notwithstanding any Act so always as this be taken for no example That the sale of Tin may be at Lostwithiel in Cornwal and shall not continue at Calais Notwithstanding the Council may grant License to Merchants to carry the same Tin to what parts they will as to them shall seem good Here the Power of Dispensing is delegated to the Council Upon the request of the Commons the King promiseth that he will not from thenceforth dispence with the Statute of Provisions to Benefices This implies that the King had practis'd it and we know who began the practice and who taught it to others and this Record shews it was without consent and was a cause of complaint and the King promises to reform it for the future But what signifies a Promise where a Law and an Oath is too weak to secure it this Promise doth not confer a new Right but is to reform an unjust Practice I shall use one Argument more against this exercise of the Power of Dispensing with Acts of Parliament as it hath of late been practis'd and that Argument shall be rais'd from the great Inconvenience and Mischief that will ensue upon it to the Kingdom it may occasion the infrequency of Parliaments by taking much of their power out of their hands Laws are many times made but probationers and temporary to the end that if upon experience of them they be found to be too severe or strict and to sit hard upon any persons that the Parliament at their next meeting may moderate or relax the severity or inconvenience that may arise by them But if there be another way allowed for the doing of this Work there will be the less need of a Parliament and so other Work that requires also their meeting may remain unremedied If we consider how frequently the Parliament ought to meet and and how often they did anciently meet we shall easily be convinc'd that the relaxing of a Law or giving remedy where the Law was upon experience found inconvenient was a work properly belonging unto them and there was no need of resorting to any other help for who should cure or reform a Law if any thing were amiss in it but the Law-makers See the Statute of 6 H. 8. c. 18. the Book of Statutes at large concerning Bristol Our Saxon King Alfred and his Wise Men that is the great Council of the Kingdom ordained that a Parliament twice a Year and oftner in time of Peace should meet in London Thus says that ancient Book stiled The Mirrour of Justices c. 1. sect 3. pag. 10. by 4 E. 3. c. 14. It is accorded that a Parliament shall be holden every Year once or more often if need be this does not abrogate not alter King Alfred's Law. By 36 E. 3. c. 10. many Laws had passed in that Parliament of 36 E. 3. which are there called Articles as anciently our Statutes were drawn into certain Articles and so passed as being Articles of Agreement betwixt the King and his Subjects as I had occasion to observe in the beginning of my Discourse and this Statute of 36 E. 3. provides that for maintenance of the said Articles and Statutes and redress of divers Mischiefs and Grievances which daily happen a Parliament shall be holden every Year as another time was ordained by a Statute referring to the Statute of the Fourth of this King. The Act of 16 Car. 2. c. 1. for repeal of the Triennial Act made 16 Car. 1. in the last Paragraph recites that by the ancient Laws and Statutes of this Realm made in the Reign of King Edward the Third Parliaments are to be held very often and this Act of 16 Car. 2. makes a new provision to the end as the words are there may be a frequent calling assembling and holding of Parliaments once in three Years at the least Now let us enquire what the proper Work of a Parliament is which the said Statute of 36 E. 3. mentions in part viz. for maintenance of the Articles and Statutes and redress of Mischiefs and Grievances that daily happen as that Statute recites Sir Tho. Smith who was principal Secretary of State in his Treatise de Republica Administratione Anglorum L. 2. c. 2. fol. 50 51. says this of the Parliament In Comitiis Parliamentariis posita est omnis augustae Absolutaeque potestat is vis veteres leges jubent esse irritas novas inducunt praesentibus modum constituunt There is the true dispensing power Incerti juris controversias Dirimunt Bracton writes of this High Court Habet Rex Curiam suam in concilio suo in Parliamentis suis ubi terminatoe sunt dubitationes Judiciorum novis injuriis emersis nova constituuntur remedia The Mirrour of Justices c. 1. pag. 9. says that Parliaments were instituted to hear and determine the Complaints of the wrongful Acts of those against whom the Subject otherwise could not have common Justice that is against great and powerful Delinquents Nihil prodest says Bracton Jura concedere nisi sit qui Jura tueatur So that there is need of a frequent resort to be had to the Law-mamakers not only to resolve difficulties of Judgments but to keep the power of Interpretation within its due bounds and the Law hath taken care for frequency of Parliaments Sir Francis Bacon in his Advancement of Learning gives this excellent Advice to Law-makers and to those to whom it belongs to defend the Laws Let not says he Praetorian Courts speaking of Courts of Equity have power to decree against express Statutes under pretence of Equity for says he if this should be permitted a Law interpreter that is a Judge would become a Law-maker and all Matters should depend upon Arbitrament that is upon an Arbitrary Power And Arbitrament would encroach upon and at last swallow up Law. The power of extending or supplying or moderating Laws little differs says he from the power of making them Courts of Equity sometimes under the pretence of mitigating the Rigor of the Laws and such is the Power of Dispensing relax the Strength and Sinews of Laws by drawing all to Arbitraments he was well able to judge of this having been Lord Chancelor And it is his 46th Aphorism That is the best Law which gives the least