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
been such a Power in the Crown the King would never have suffered himself to have been depriv'd of it and to have it dispos'd of into other hands by the Parliament and there would have been no need of passing such a Law the King himself alone could easily have transacted all this Matter provided for by this Act of Parliament had he had the sole Power It is true that the Lord Hobart in his Reports Fol. 146. mentioning this Act of Dispensations and taking Notice that by the express words of the Act all Dispensations c. shall be granted in Manner and Form as is prescribed by that Act and not otherwise yet he holds that the King is not thereby restrained but that his Power remains full and perfect as before and that he may still grant Dispensations as King for says he all Acts of Justice and Grace flow from him This and such like Statutes says the Lord Hobart were made to put things into ordinary form and to ease the King of Labour not to deprive him of Power This Opinion of his is grounded upon a presumption that the Power of Dispensing with Laws was always from the beginning a Prerogative inherent in the Crown not examining who was the first Author and the time when it first began and whence we borrowed the use and how there was a time within evident proof of credible and authentick Writers when Dispensations were not in use and so they are within the time of Memory in a Legal Construction and cannot be by Prescription And it is plain every Legal Prerogative must be so by Prescription that is used time out of Memory of Man and whereof there is no sufficient Writing to the contrary But I may appeal to any unbiass'd and equal Judgment upon the reading of this Act especially the Preamble of it whether this Act meerly intended to put things into an ordinary Form and to case the King of Labour or whether it was not to put an absolute stop to the former Practice and does not directly declare and determine where the true Power of Dispensing ever was and therein uses those exclusive words and not otherwise for those words are in the Preamble as well as in the Body of the Act. So that this Construction of the Lord Hobart's That still the King may Dispense alone by himself and that he might have done so by his Prerogative before the making of this Statute and may do so still notwithstanding this 〈◊〉 is directly against the very words of the Statute that says it shall not be otherwise then as the Statute directs and being in the Negative are the stronger And the three Instances or Cases cited by the Lord Hobart all out of Dyer do not come home to the Case of the King 's Granting Dispensations in other manner than the Statute of 25 H. 8. c. 21. hath directed which expresly enacts that they shall not be granted otherwise 1. His first Instance is out of Dyer 211 the Statute of 28 H. 8. c. 15. Appoints that the Commissioners for Tryal of Piracy shall be named by the Lord Chancellor now it happened there was no Lord Chancellor but a Lord Keeper and it was held that he might name the Commissioners by the meaning of this Statute as well as the Lord Chancellor This is under favour but a weak proof of the King's Power or Prerogative of varying from the Directions of an Act of Parliament or dispensing with the Rules prescrib'd by it for it is a meer imaginary variation the Lord Keeper ever having the same Power as the Lord Chancellor and it is not meerly so enacted but declar'd by the Act of 5 Eliz. c. 18. which proves it was Law before And yet some Judges held the Commissioners were not well named but that the Commission was void 2. The second Instance or Authority that the Lord Hobart uses to prove his Assertion that the words and not otherwise in the Statute of Dispensations doe not restrain the King's Power but that he may do otherwise is out of Dyer 225. That Queen Elizabeth might make Sheriffs without the Judges notwithstanding the Stat. of 9 E. 2. this I shall have occasion to examine and speak to more fully hereafter and therefore shall reserve it till then and doubt not to shew it is a mistake and it was done by the Queen in a case of necessity it being in the time of the Plague when the great Officers could not safely meet in the Exchequer as the Statutes require for the chusing of Sheriffs and the Term was held at Hertford and the Report says no Sheriff was named by the Queen for the most part but out of those Names that remained in the Bill for the former Year And the Book only says it was held the Queen might do it by her Prerogative 3. The last Instance that the Lord Hobart gives is out of Dyer 303. b. that the King may grant the Aulnagers Office without a Bill sealed by the Treasurer tho' the Statute of 31 H. 6. c. 5. says the Grant of that Office shall be void without a Bill seal'd by the Treasurer The Resolution of that Point is very obscurely reported but however take it at the strongest this is in a matter that concern'd the King's Revenue and where it may more reasonably be said by the King. May I not do what I will with my own And this Statute may easily be understood to be to put the granting of this Office into an ordinary form and to ease the King of Labour and not to restrain his Power If that may be said in any Case against the express words of a Statute it may be in a Case that concerns meerly his Revenue as this of the Aulneage was In the next place I shall shew that the stream of Dispensations did anciently run in this channel till afterwards it found out another course and that Dispensations with Laws were only in the same hands as had the Legislature that is in the King and Parliament in former times and this answers that Example that hath been used that Almighty God dispens'd with his own Law of the sixth Commandment when he commanded Abraham to sacrifice Isaac God was the great and only Legislator Now the King is not the sole Legislator I shall present you with a very full Precedent and Proof of the Power of Dispensing with Acts of Parliament to be no where else but where the very Legislative Power is And that the Kings have sometimes accepted it from them in some particular cases and for some limitted time and with divers restrictions which is a full acknowment that it belongs only to the Legislative Power to dispence with Laws The Commons for the great Affiance which they repose in the King granted that he by advice of his Lords might make such Toleration touching the Statute of Provisions as to him shall seem good until the next Parliament so as the Statute be repealed in no part thereof
pleaded it And he is now Convict according to the direction of the Act of 25 Car. 2. so that he now comes too late to plead it to this Action for he cannot falsifie the Conviction nor averr any thing against the Record of it and bring the Fact to be tryed over again in this Action but is concluded and estopp'd in Law to say any thing to the contrary of that Record by which he is found guilty of the Offence against this Act of Parliament The Defendant either did plead this Dispensation or Pardon to the Indictment in discharge of the Indictment and it hath been over-ruled by the Judges at the Assizes as by Law it ought to be being no good Plea Or he might have pleaded it if he had been advis'd it had been a good Plea. And not having done it he hath elaps'd his time and now comes too late to plead it being Convict of the Crime To this it was objected as I hear That the Plaintiff if he will take the advantage of an Estoppel ought to have set it forth by way of Replication to the Defendants Plea and to have relied upon it For the Rule is That he that pleads an Estoppel must rely upon it as an Estoppel It is true if a man will plead an Estoppel he must rely upon it But in this Case the Plaintiff does not plead the Estoppel but the Estoppel appears by the Declaration and the Defendant's own Plea together so that there was no need for the Plaintiff to set that forth by way of Replication which doth sufficiently appear by the Defendant's own Plea viz. That he did not take the Tests within the time limitted by the Act and the Conviction is confess'd by his Plea and joyning in Demurrer If a man recover a Debt upon a Bond and before Execution dies if his Executor sue a Scire Facias upon that Judgment the Defendant cannot plead any Plea that he might have pleaded before as Non est factum or by Dures or the like for he is concluded by the Judgment In Jason and Ketes Case in Siderfen's Reports fol. 43. by Bridgman Chief Justice a man shall never help himself by Audita querela tho' that is an equitable Suit at Law for any matter that he might have pleaded before There is no Estoppel in this Case for the Conviction is upon an Indictment which is the King's Suit and this is the Suit of another viz. the now Plaintiffs and so they are two distinct Suits The Conviction upon the Indictment is an Estoppel against the Defendant himself of which any man may take the advantage and he himself shall never be admitted to averr against it As in Maynyes Case in Leonard's first part fol. 3. An Attainder for Treason is an Universal Estoppel of which any Stranger may take the advantage not only against the Party attainted but against his Wife too if she sue for Dower And it does not run in Privity By Manw. Ch. Bar. Where a man is attainted by his own Confession of a Felony a Stranger is not Estopp'd to say he was not guilty But if A. commit Felony and after enfeoff I. S. of his Land and after A. is attaint of this Felony by Verdict there I. S. is Estopp'd and may not averr that A. was not guilty because he claims under him much less shall A. himself averr against the Verdict that he is not guilty If a man be acquitted of Felony all the World says Grevil in Kellow Rep. 81. b. is Estoop'd to say the contrary So vice versâ if he be convict by the same reason As to that which is objected that the Conviction is upon an Indictment which is the King's Suit but this is another Suit and therefore the Verdict shall not conclude the Defendant in this Suit. This is not another Suit but in effect an Execution upon the Conviction and grounded upon that Record and therefore not meerly a new Suit but a dependant Action as a Writ of Error or an Audita quaerela or a Scire Facias upon a Record are dependant Suits or an Action of Debt upon a Judgment The Act of 25 Car. 2. c. 2. hath made it Criminal in any person after his neglect of taking the two Oaths or of the Sacrament by the times limited to execute any such Office or Place of Trust and for such Offence hath made him indictable at the Assizes and upon a Conviction the Offender incurs among other Penalties the forfeiture of 500 l. and gives it to any one that will sue for it in an Action of Debt So the Statute hath directed the method of trying the Offence and of convicting the Offender by Indictment at the Assizes And if he that sues for the Forfeiture shall be driven to prove the Offence over again then the Conviction at the Assizes serves for nothing but was all in vain And such Construction defeats the intention of the Law-makers for they intended this for the only Tryal and not to have several Tryals for suppose it should be tryed again in this Action and a Verdict pass for the Defendant here shall be Tryal against Tryal and Verdict against Verdict And such Construction ought to be made of Acts of Parliament as may not elude but agree with the intent of the Law-makers and so as that no Words Clause or Sentence shall be altogether idle and insignificant And this Conviction upon the Indictment is the very ground of the Action of Debt brought by the now Plaintiff for the words of the Act are And being thereupon lawfully Convicted upon any Indictment every such person shall from thence-forth forfeit 500 l. So that till there be such a Conviction there is no Forfeiture incurr'd of 500 l. nor no Action can be brought for the 500 l. The Offence must be prov'd and determin'd before any Action can be brought and therefore the proof of the Offence whereof the Defendant is convict must not be made in this Action over again if it must what serves the Conviction for Suppose the Plaintiff here had brought his Action after the neglect of the Defendant of taking the Oaths and of receiving the Sacrament and his acting in his Office after such neglects and before any Conviction upon Indictment and had only averr'd that the Defendant had so neglected and yet acted would this Action have been well brought Or suppose there had been a Conviction but the Plaintiff had not set it forth in his Declaration but had only averr'd the Offence committed would this have been a good Declaration Surely it would not This proves that the Record of the Conviction is the very ground and foundation of this Action and the Action would not lie without such Conviction so that it is not a meer new Action but a dependant Action And the usual difference is where the Action is a dependant Action depending upon a Record and grounded upon it
Distinction and weigh the Reasons so given we shall find it is without any just ground The damage done to the particular person in the Cases past in the first part of this distinction are meerly his own proper and peculiar damage and he is intituled to his particular Action for it in his own proper personal Right and therefore if he discharge and dispense with them it is no wrong to any other man. He may do what he will with his own But the Cases in the second part of this Distinction are where the King hath a right to the Suit and the offence and damage are said to be to him only But are they so as the former in his own personal right as his Lands and other Revenues are or are they to him but as a Trustee for the Publick for which reason he is called Creditor Poenae and may he therefore upon the like reason dispense with them or dispose of them as a Subject may do with his own particular Interests Again Shall a publick Damage and Injury to the whole Nation be more dispensable by the King than the loss of one private man fuit haec sapientia quondam Publica privatis secernere And therefore in my apprehension the King cannot in such Cases of Dispensations be truly said to wrong none but himself and it is not agreeable to the Definition before given Utilitate Compensata for the King wrongs the whole Realm by it Where if he grants a Dispensation with a Penal Law of the first sort of this distinction he only wrongs some particular persons The Cases and Authorities for Dispensations in our Books that were granted in ancient times will generally be found to be only where the Penal Statutes were made for the King 's own proper interest and benefit As his dispensing with the Statute of Mortmain For in such Cases it was to the King 's own loss only in Cases where the King might by Law have given away his Lands or Services So the King may in his Patent of Grant of Lands dispense with the Statutes that require there shall be mention of the true Values of them And by a Non-obstante to those Statutes which is now generally used the King does in effect declare that it is his pleasure to grant those Lands whatever the Value of them be more or less and the Statute does by express words save a liberty to the King in that Case The King is not a Trustee for others in such Cases nor can these Dispensations be said to be directly to the damage of the Publick And such Penal Laws as meerly concern the King 's own Revenue or Profit may justly be thought to be intended to be made only to put the King's matters into an ordinary method and course and so save the King a labour as the Lord Hobart says and so prevent the King 's being surpriz'd or mis-inform'd when Patents are gained from him and not design'd to tye the King's hands or to restrain his power as out of all doubt was done and intended by the Law-makers in our Act of 25 Car. 2. But in all the late Cases and Authorities which we meet with in our Books concerning Non-obstante's and Dispensations as in the time of King Henry the Seventh and so downward to this day we shall find them practising upon such Penal Statutes as meerly concern the Publick Good and Benefit and the Laws of such a nature by the breach of which the whole Nation suffers While some particular persons it may be by giving a large Fine or a yearly Sum obtain the favour to be dispens'd with and exempt from a Penal Law while all others continue to be bound by it As for Example Where a Statute forbids the Exportation of Wool or of Cloth undyed or undress'd under a Penalty such a Law is greatly for the Publick Good and it takes care that our own People shall have Employment and Maintenance Yet this is such a Law as according to the receiv'd Distinction the King may dispense with there being no particular damage to one man more than to another by breach of such a Law although it be a mighty damage to the whole Nation For by such a Dispensation the person so dispens'd with to Export such White Cloth undyed will have the sole Trade which before the making of that Penal Statute was equal and common to all I wish the House of Commons would enquire what vast Riches have been heretofore gotten by such as have obtain'd the Dispensations with this Penal Statute besides the Sums they paid to the Crown for them These are meer Monopolies In such a Case it may rightly be applied That Sin taketh occasion by the Law. It had been better for the Nation that such Laws were never made being no better observ'd for here again the Dispensation is neither Utilitate nor Necessitate pensata Look into the Case of Thomas and Sorrell and you will find few or no Cases of Dispensations cited out of our Books but of the time of King Henry the Seventh and much more of very late times so that the ill practice is still improving and stretching The Lord Chief Justice Herbert in the next place pag. 9. proceeds to mention the great Case of 2 Hen. 7. a Resolution of all the Judges in the Exchequer-Chamber upon the King 's dispensing with the Statute of 23 H. 6. cap. 8. That no man should be a Sheriff above one year This is the great Leading Case and Authority upon which the main stress is laid to justifie the Judgment given in Sir Edward Hales his Case I would avoid repeating what I have already so largely said to this Authority to which I must refer my Reader by which I hope it is most evidently made out that the King neither hath nor never had any just Right or Power to elect Sheriffs But the right of Electing was anciently and originally belonging to the Freeholders of the several Counties and since it was unjustly taken from them as they have ever been on the losing hand it hath been lodged in the great Officers of the Realm as the Lord Chancellor Lord Treasurer Lord Privy-Seal and the Judges c. as appears by the several Statutes And they are to make such Choice every year in the Exchequer on a day appointed by the Statute for that purpose So that the Sheriffs are by those Statutes to continue in their Offices for one year only And the King cannot hinder such Election Only by his Patent or Commission to the Sheriff hath he used to signifie to the Sheriff himself that is so chosen and to publish to all others who the person is that is so chosen This is all the use of the Patent but it is the proper Election of those great Officers that truly vests them in their Office And it does as clearly appear that when former Kings have dispens'd with a Sheriffs continuing in his Office for longer than one year contrary to the
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
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
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