although he had the King's Assent to it and he exercised it several Years by his Permission Stephen Gardiner in his Letter to the Protector saith That he obtained his Legatine Power by the King's Assent From whence he observes What Danger they may fall in who break the Law with the King's Consent for in the Cardinal's Case he saith That because his Legatine Power was against the Laws of the Realm the Judges conclude the Offence to be such as incurred the Praemunire And this he Asserts was the Sense of the Lawyers of that Time and for confirmation of it he brought the Case of the Lord Tiptoft who sufferd on Tower-Hill because in execution of the King's Commission he had offended against the Laws of the Realm And of many Judges who had Fines set on their Heads in like Case for acting against the Law of the Realm by the King's Commandment But it is pleaded on the other side That the Commons 1 H. 5. n. 22. put in the saving the King's Prerogative into their Petition concerning the Statute of Provisors that it may stand in full Force And this was an owning the King's Dispensing Power by all the Commons in Parliament when they were in a high Debate with the Crown This seems to have a good shew of Reason to any one that doth not consider the Practice of those Times in Acts of Parliament for the Petitions of the Commons before 2 H. 5. were not taken entire and just as they delivered them but several Clauses were inserted by the Court especially such as seemed to preserve the King's Prerogative which the Commons found so inconvenient That the next Year as Serjeant Glanvil observed and probably on the Occasion of these Savings 1 H. 5. n. 15 and n. 22. the Course was altered and hath so continued Therefore methinks so great Weight should not be laid on these Savings as if they implied the owning the Dispensing Power when the Design of the Law was against it And the King's Answer is Let the Statutes be held and kept I appeal to any Man's Understanding whether the saving the King's Prerogative can be any other than a General Clause put in without respect to the Dispensing Power since the Petition is against the Exercise of it and the Answer That the Statutes should be observed If they were observed what Use of the Dispensing Power for that lay in giving leave not to observe them What strange Sense is this The King promises The Statutes shall be kept saving his Prerogative that they may not be kept for they feared the not keeping them from such a Prerogative and when the King therefore Yields they shall be kept he doth give up any such Prerogative or else he doth not answer their Petition The Truth is when the Kings had got this Power into their Hands though it were with such Limitations at first yet they found Arts from time to time to keep it till at last they were unwilling to part with it as appears by H. 4. but upon the restless Importunity of the Commons it was laid down by him And now in the beginning of H. 5. the Commons took Care to prevent its Rising in a new Reign but he being a Prince not ready to part with any thing which looked like Power was in probability not easie to be brought to confirm the Statute of Provisors without some general Words of saving his Prerogative which the Commons might yield to that they might gain the main Point since those Words could signifie nothing against the very Intention and Design of the Law. IV. The Precedents in Law do contradict this Rule as will appear by those which are produced by the Lord Chief Justice Vaughan in the Case of Thomas and Sorrel 1. The King cannot Dispense with a Common Nusance for The King he saith cannot Pardon continuing Nusances but the Penalty he may The King cannot Dispense with a Nusance to the High Ways by 11 H. 7. he cannot Pardon or Discharge the Nusance or the suit for the same the High-ways being necessary for such as Trawel but Common Nusances are not mala in se which are not Evils at Common Law as some understand them but things so intrinsecally Evil that no Circumstances can make them lawful Malum in se is a Moral Evil in its own Nature and therefore can never be Dispensed with but a Nusance at Common Law is but a Natural Evil and all the Moral Evil of it lies in the Prohibition by Law And yet in these it is granted That the King cannot Dispense And the Year-Book saith That a Licence to make a Nusance in the High Way were void For what Reason Is it a thing forbidden by the Natural or Divine Law Cannot the King for his Will and Pleasure License the Making a Nusance and yet is it possible for Men of Sense to imagin That he can by his Dispensing Power give leave to do such things as in consequence overthrow our Laws and Religion Doth the Law take greater Care of the High-Way than of our Liberties and Religion This would seem strange Doctrine to People of another Country viz. That by the Law of England the King hath no Power over the High-Way to Dispense with a Common Nusance therein but he hath over the Laws made for the most Publick Good and Security of the Nation And truly this cannot but seem strange to as many among our selves as allow themselves the Liberty of thinking Doth the Law only take care of Oxen and High-Ways But it is well observed by the Learned Chief Justice Vaughan That Publick Nusances are not mala in se but mala politica introducta and when a thing is said to be prohibited by the Common Law the meaning is no more but that the Ancient Record of such a Prohibition is not to be found 2. The King cannot Pardon the Damage done to particular Persons saith the same Chief Justice where the Suit is only the Kings but for the Benefit and Safety of a third Person the King cannot Dispense with the Suit but by Consent and Agreement of the Party concerned And again Penal Laws the Breach whereof are to Men's particular Damage cannot be Dispensed with And the Chief Justice Herbert owns That the King cannot Dispense with Laws which vest the least Right or Property in any of his Subjects Here we see the Prerogative bounded where the Interest of particular Persons is concerned but doth the Law take more Care of them than of the Publick Interest and the concernment of the whole Nation But I find another Distinction in this Case viz. There is Bonum Publicum and Laws made for that may be Dispensed with And there is Bonum singulorum Populi and with Laws that concern that the King cannot Dispense This is admirable Learning if it be brought out of these Terms And the meaning is The King can do nothing to the Prejudice of the People in
Land c. 43. and therefore the Feudists say That Felony is delictum Vasalli adversus Dominum From the Gothick Fell or Fehl which signifies in general a Fault And in this Case the Breach of Trust towards his Lord Of which sort of Felonies the Feudists reckon up some twenty some thirty any one of which makes a Forfeifeiture So that here is no such mighty Difference that the poor Clergymen must only have Conditional and Attendant Freeholds as though other Men's were Absolute whereas Sir Thomas Smith affirms all in England are Fiduciary i. e. Conditional Freeholders beside the King. It is easie enough for any one to frame such a Distinction of Freeholds and to say That these who have but such a Freehold may be ejected without any Trial at Common Law But he ought to have shewed That Magna Charta or the Ancient Laws made such a Difference between Ecclesiastical Freeholds and others which he hath not preended to do and therefore such a Distinction ought not to be allowed especially since I have produced an Act of Parliament 14 Edward 3. c. 3. which saith That Clergymen shall not be ejected out of their Temporalties without a True and Just Cause according to the Law of the Land This was none of those Statutes which are in Print but never enrolled for Sir Robert Cotton owns the enrolment of it and that it was made into a Statute and Mr. Pryn himself had nothing to object against it But now it seems their Conditional Freholds may be taken from them without any due Course of Law. II. There is more to be said concerning the Rights of Ecclesiastical Persons in Colledges because they are Lay Corporations For in Appleford's Case it was declared to be the Opinion of all the Judges in Pattrick 's Case That a Colledge was a Temporal Corporation And therefore some notable Difference in Point of Law must be shewed Why Men may be deprived of some Freeholds without due Course of Law and not of others for I cannot imagine That Colledges being founded for the encouragement of Learning should lay Men more open to Arbitrary Proceedings than any other Legal Societies are However Deprivation in Coveney's Case was agreed to be a Temporal Thing and for that Reason his Appeal was rejected as not relating to a Matter of Ecclesiastical Jurisdiction which was only provided for 24. and 25. Henr. 8. But it was allowed That he might bring an Action at Common Law. Our Author several times mentions this Case but puts it off till he comes to Treat of Appeals i. e. to the Place he knew it to be improper in For the Question is not Whether an Appeal doth lie to the King in Chancery in a Case of Deprivation but Whether there be not a Remedy at Common Law if a Person be deprived of a Free-hold without due form of Law And after a great deal of Impertinency about the manner of Appeals he at last concludes The Remedy had been at Common Law only which is clear giving up the Point For then in case a Person be deprived without due course of Law of his Free-hold he grants that he is to have his Remedy at Law and consequently that a Deprivation of such a Free-hold without due Course of Law is not sufficient For the Law provides no Remedy where there is no Injury done nor just Cause to seek for Redress And so I come to the second Objection which is this 2. That to deny the Jurisdiction of this Court is to deny the King's Supremacy and that is a dangerous thing by the Law. The Case was this Dr. F. of Magdalen College in Oxford being summoned before the Commissioners denied the Authority of the Court and persisted in so doing which our Author saith in another Kings Reign perhaps might have been interpreted a Questioning the very Supremacy it self which how fatal it was to John Fisher Bishop of Rochester and Sir Thomas Moor is worthy to be considered both as a Demonstration of our Kings Clemency and that the Doctor hath not so much reason to complain of his hard Usage The Meaning whereof is this That if they had proceeded in Justice against him he ought to have suffered as Bishop Fisher and Sir Thomas Moor did This is more than a bare Insinuation That to deny the Jurisdiction of this Court is to deny the Kings Supremacy and that it is meer Clemency not to deal by them who do it as H. 8. did by Bishop Fisher and Sir Thomas Moor. But 1. It is by no means evident That those two Persons suffered meerly on that Account For their Attainder in Parliament was for refusing the Oath of Succession and King James I. mentions the Words of Sir Thomas Moor to that purpose which he spake to the Lords when he was condemned And their Attainder if I mistake not was in the same Parliament which made it Treason to deprive the King of his Dignity Title or Name of his Royal Estate and therefore could not be by an Act not then passed But 2. Suppose that they were at last proceeded against on the Act then passed what is this to the present Case when Coke saith This Act was twice Repealed And it is no extraordinary Clemency not to be proceeded against by a Law that hath no force 3. The Statute in Force 5 Eliz. c. 1. is against those who defend or maintain the Authority Jurisdiction or Power of the Bishop of Rome or of his See heretofore claimed used or usurped within this Realm or by any Speech open Deed or Act advisedly wittingly attribute any such manner of Jurisdiction Authority or Preheminence to the said See of Rome or any Bishop of the same for the time being within this Realm So that it cannot be denied that there is occasion for his Majesties Clemency but it is to another sort of Men. 4. It is very hard straining to make the denying the Jurisdiction of this Court to be denying the Kings Supremacy when a Person hath done all which the Law requires him to do towards owning the Supremacy If he had said Dr. F. had taken Possession of his Fellowship there without taking the Oath of Supremacy which the Law requires he had then indeed given ground to suspect him for denying the Kings Supremacy but to take no notice of those who refused to do as the Law requires and to talk thus of what Severity might be used to one that hath done it looks in him neither like Clemency nor Justice 5. It was always looked on as a Legal Right to make Exception to the Jurisdiction of a Court especially when newly established without Act of Parliament and to any ordinary Understanding in flat Contradiction to it It is very new Doctrine that in a Legal Government Exceptio Fori shall be interpreted a Denial of supreme Authority which was not only allowed by the Canon and Civil Laws but by the most Ancient Common Lawyers we have
he is not Lord over the Community but Governour 2. That for him to Dispense in a Law made for the Community without a just Cause is not only malum quia prohibitum sed ex se ex natura rei semper malum Therefore Suarez was far from thinking a Prince might Dispense with any thing that was not malum in se for he makes it to be so for him to dispense with a malum quia prohibitum if it be prohibited by a Law made for a Publick Good and there be no just Cause for it 3. That although a Prince sins in Dispensing with such a Law yet his Dispensation holds as to the Force of the Law which he supposes to depend on the Will of the Prince and therefore his Will being altered the Obligation ceaseth as to the Persons Dispensed with 4. That although such a Dispensation holds as to the Law yet he thinks a Prince bound in Conscience to Revoke such a Dispensation because it is unlawful for him to persist in such a Will it being repugnant to the Common Good and the Obligation of his Duty 5. That if such a Dispensation be to the Injury of a third Person then it is void in it self as being repugnant to Justice Vasquez saith They are all agreed That no Prince hath a Power to Dispense with his Laws according to his Pleasure or because they are his Laws But he saith There is a Dispute Whether an unlawful Dispensation be valid or not And he thinks not and that a Man's Action after the Dispensation is as faulty as if there had been none His Reason is because a Prince is bound by his own Laws so that he cannot Dispense with himself as to the Obligation of them for if he could at Pleasure Dispense with himself he could never be bound for how can a Man be bound to keep a Law in which he can Dispense with himself when he pleases And if he cannot Dispense with himself much less with any under him Having thus endeavoured to clear the Nature and Original of the Dispensing Power I now come 2. To the Reason assigned by Sir E. Coke from the Year Books why the King may Dispense with Laws because they be mala prohibita and not mala per se. My Lord Vaughan said Right concerning it That this Rule hath more confounded Men's Judgments on this Subject than rectified them Which I shall make appear by shewing I. That it alters the Frame of our Government II. That it takes away all Security by Law. III. That it contradicts the Sense of our Nation in former Ages IV. That the Rule is contrary to the Precedents in Law. I. That it alters the Frame of our Government For it goes upon a very false Ground viz. That the King may Dispense with any thing which is not Evil in its own Nature or antecedently to any Human Laws which is to suppose the whole Legislative Power to be lodged in the Person of the King For all who understand these Matters do agree That a Power to Dispense with Laws is the same with a Power to make them Dispensare hoc est lege solvere is solus potest qui ferendae abrogandaeque leg is potestatem habet saith H. Grotius Suarez saith He hath the Power of Dispensing qui legem tulit quia ab ejus voluntate potentia pendet Vasquez That the Dispensing Power lies in him qui habet Potestatem condendi abrogandi legem Pufendorf That none can Dispense with a Law but such as have the Power of making it But we need no Authorities in this Matter For to Dispense in the Sense it is here taken is to take away the Obligation of a Law and whoever takes it away must have the Power of laying it on And there is no Difference between the Dispensation with a Law and the Abrogation of it but that a Dispensation is an Abrogation of it to particular Persons while others are under the Force of it and an Abrogation is a General Dispensation that being no more than a Relaxation of the whole Law to those Persons who were bound by it before But if a part of the Law be taken away as to the whole Community then it is called a Derogation of it But if the Law be Relaxed only for a limited Time and under certain Conditions then it is not an Abrogation but an Indulgence or Suspension of the Law. To Dispense with a Law is more than to give an Equitable Sense or a Favourable Interpretation of a Law for he that Inteprets a Law supposes his Interpretation to agree with the Sense and Design of the Law he that Dispenses owns that which he dispenses with to be against the Intention of the Law but that he hath Power to take away the Force of it so far as he thinks fit He that saith Thou shalt not kill doth not reach to Legal Executioners of Justice interprets the Law according to Reason and Equity But when God said to Abraham Go and Sacrifice thy Son he must be supposed by virtue of his Supreme Authority to Dispense with the Law in his Case so as to make that Lawful upon his Command which would not have been so without it Some will not allow this to be called a Dispensation but an alteration of the Matter of the Law but when that Alteration comes from the Authority of the Law Makers it is the same so that to Interpret a Law is an Act of Discretion and Judgment but to Dispense with it of Authority and Jurisdiction And none can therefore Dispense in the Law of God but he that made it all that the Wisest and greatest Men can justly pretend to is no more than to give the true Sense of it and it is intolerable Prsumption for any Creature to pretend to more An Equitable Sense as to Human Law is not always that which seems to be most favourable to those who go against the Letter of it but that which most enforces the End and Design of the Law although it be not comprehended in the Words of it If a Law mentions a Crime of a lesser nature in regard of Circumstances and in regard of those Circumstances promises some Favour as Benefit of the Clergy it can be no Equitable Sense to extend it to such Acts which have worse Circumstances because the Ground of the Favour was the extenuation of the Fact by the Circumstances so that the chief Rule of Equity in the Interpretation of a Law is to attend to the Intention and Design of it more than to the bare Words The Intention and Design of the Law is not to be measured by Particular and Accidental Cases wherein some Inconveniencies are to be born but by the Publick and General Good which more than makes amends for them which is the Reason of that Maxim Better a Mischief than an Inconvenience which is false unless taken in such an Equitable Sense There are