justifie them It is well known in Story that six Judges and two of the King's Council at Law suffer'd for Treason upon a Parliamentary Prosecution 11 R. 2. for delivering their Opinions That they were to be punish'd as Traytors who hindred the King from exercising his Soveraignty and Prerogative over a Statute and an Ordinance and Commission made in the foregoing Parliament The substance of their Crime lay in ascribing to the King a Power to defeat the Provisions of the Parliament for the safety of the Nation and is a direct President at which our Judges ought to tremble Nor can it avail them that the express words of the Statute 25 E. 3. c. 2. do not condemn them since that Act transmits Common-Law Treasons to the Judgment of Parliament and the Statute 1 Mar. c. 1. leaves that power untouch'd and who can doubt but such a Resolution and that justified in Print and published to the World is an overt Act of Treason as it tends to the subverting the Fundamental Rights of Parliaments Nor can they have any colour for asking with the Lord Strafford Where is the Buoy when they see so many Shipracks to admonish them Nor ought Sir Edward to wonder at a Treason against the Government tho' not directly against the Person of the King his Relatives Officers or his Coin nor yet an actual levying of War within his Kingdom or adhering to his Enemies for he may find among the Articles against the Lord Kimbolton and others exhibited Anno 1641. by his Father then Attorney-General That they have traiterously endeavoured to subvert the very Rights and Beings of Parliaments But since Sir Edward pleads Conscience for what he did and might have urg'd the Authority of Spiritual Guides who would make the Scripture notion of higher Powers a sufficient Warrant for such a Judgment I shall conclude with the good Queen Elizabeth Doctrine of the famous Bilson afterwards Bishop of Winchester By Superior Powers ordain'd of God we understand not only Princes but all politick States and Regiments some where the People some where the Nobles have the same Interest to the Sword that Princes have in their Kingdoms And in Kingdoms where Princes bear rule by the Sword we do not mean the Prince's private Will against his Laws but his Precept derived from his Laws and agreeing with his Laws FINIS Publish'd by this Author A Poetical Essay towards an Epitome of the Gospel Ed. Anno 1678. Jani Anglorum facies nova Anno 1680. Jus Anglorum ab Antiquo Anno 1681. King Edward the Sixth against the Pope's Supremacy with Remarks on his Life Anno 1682. Lord Hollis his Remains Dr. Twisden's Considerations touching the Grand Question With Reflections upon Antidotum Britannicum and Mr. Hunt's Book and Postscript Anno 1682. Anonymus his Letters to Dr. Sherlock concerning Church-Communion With a Reply to his Answer Anno 1683. A Letter of Remarks on Jovian Anno 1683. A true Account of the Unreasonableness of Mr. Fitton 's Pretences against the Earl of Macclesfield Grotius his Arguments for the Truth of the Christian Religion in Verse With an Appendix concerning Prophecies Anno 1686. The Idea of Christian Love and Paraphrase on Mr. Waller's Poem of Divine Love. Anno 1688. Ready for the Press A Supplement to Dr. Brady's Introduction and Compleat History Vid. Account p. 1. Account p. 6. Cook 11 Rep. f. 88. V. p. 7. 8. P. 6. 11 Rep. f. 88. 7 Rep. f. 36. Suarez de Legibus lib. 6. cap. 10. f. 384. Ib. cap. 14. f. 395. V. Jus Angl. ab Antiquo Jani Angl. fa. nov Vid. Mat. Par. de Anno 28. H. 3. So Rot. Pat. 42 H. 3. m. 4. m. 10. V. Jan. An. fa. Nov. p. 244. Rot. Par. 4. E. 3. Vid Rot. Par. 5. E. 2. Ryley pl. parl f. 317. Rot. Par. 8. E. 2. n. 35. 4. E. 3. n. 16. 17. E. 3. n. 12. Walsingham fol. 243. Vid. Knighton the 1st Art. against R. 2. f. 2747. Vid. etiam 5. H. 4. n. 37. 11. H. 4. n. 15. 1. H. 6. n 16.24.30 11. H. 6. n. 17. 31. H. 6. n. 38. V. Roles Ab. 2. part 179. Mat. Par. ed. Tig. f. 784. V. Math. Paris f. 827. illepidum Prin's Animad f. 129.130 V. etiam Sir John Davis his Rep. f. 69. b. * Vid. Mod. ten Parl. Parliamentum separari non Debet dummodo aliqua Petitio pendeat indiscussa vel ad Minus ad quam non suit determinatum responsum si Rex contrarium permittat perjurius est As I find it in an ancient MS. of the Modus Vid. etiam 4 Inst f. 11. Vid. 50 E. 3. n. 177 178. 1 R. 2.95 This acknowledg'd for Law in the King's Name 2 R. 2. n. 4. Vid. Spelm. Vit. Aelfredi f. 115. Mirrour p. 282. Where 't is plac'd among the Abuses of the Law That Parliaments are not held twice a year Account p. 7. 7 Rep. f. 36. Account p. 7. Pag. 7. Pag. 28. Chief Justice Fineux 11 H. 7. f. 12. a. Moor Rep. f. 714. Indeed the Book spsaks also of dispensing with Statutes restraining the Prerogative but that concerns not the Instances here of things forbid the Subject for the limitation of that Power Vid. infra F. 332. F. 333. Sup. f. 714. 7 Rep. f. 36. b. 1 H. 7. f. 2. b. 3. â— P. 8 9. Acc. p. 9. Yet p. 5. he promises to cite the Books and Pages and to transcribe the very words of his Authorities that every body may be convinc'd if he were in a mistake it was no wilful mistake 2 H. 7. f. 6. b. 7. a. F. 7. It should be c. 9. F. 7. a. Brook Patents n. 45. Fitz. Ab. tit Grant n. 22. Account p. 11. First Ground 23 H. 6. c. 8. Vid. Cambd. Brit. f. 115. Vid Dugdale's Baron f. 2. Bromton a. f. 779 ad 798. De Regno Northumb. 9 Rep. f. 25 b. ir Rob. Atkins v. Rob. Holford in Scaccario Hil. 22 23 Car. 2. Vid. Rep penes doctissimum Dominum Ward The second Ground Rot. Parl. 1 H. 7. par 2. Account p. 12. Vid. Account f. 12. Account p. 12. Accoont p. 13. Grenden v. Levesque de Lincoln Plowden f. 502. Second Point 2 H. 7. Account p. 13. 12 Rep. f. 17. Was made Sollicitor 16 June 34 Eliz. Dugd. Cron. Series f. 99. 12 Rep. f. 18. Dr. Sherlock's Case of Resist p. 113. Dr. Scot's Serm. upon Rom. 13 1. Dr. Sherlock's Case of Non-resistance p. 199. Pag. 199 200. Jovian p. 242. How falsly vid. the Letter to Jovian Vid. Jovian p 236. Account p. 13. 7 Rep. f 4. Vid. Archb. Abbot's Exceptions to Sibthorp's Serm. Rushw part 1. f. 439. 442 7 Rep. f. 27. Vid. Vaugh. f. 286. 4 Inst f. 135. 3 Inst f. 154. Account p. 16. Account p. 16. Vid. Consid touching the Grand Quest a. p. 210. to 214. 1 Inst f. 58 b. Account p. 26. Vid. supra 3 Inst f. 154. Vid sup p. 12 28 30. Account p.
methinks he could not but observe this Contradiction Wherefore the Rule there admit it were a Judgment in Law as it was not being onely spoken obiter by one of the Judges can be applied onely to such Cases as are there cited The first is that of Coining Money which goes upon the ground in Moor's Reports where 't is said that such Statutes as give a Prerogative may be dispens'd with and that of shipping Woolls at Calice the King's Staple is of the same nature and both sufficiently shew the Distinction of malum prohibitum from malum in se to relate barely to such things as become evil by accident as they are against an accidental Prerogative Which no way interferes with the Rights of the Subjects in general or particular And I much wonder that Sir Edward Herbert should cite my Lord Vaughan in the Case of Thomas and Sorrel as confirming what he would infer from the Year-Book when Lord Vaughan says That old Rule has more confounded Mens Judgments on the Subject than rectified them and himself denies that the King can dispense with every malum prohibitum by Statute tho' prohibited by Statute onely Oh but my Lord Vaughan shews that a Dispensation does jus dare and makes the thing prohibited to all others lawful to be done by him that has it Does he say this of every malum prohibitum By no means Wherefore we must apply it to the Case then in question which concerned Wine-Licences about which the King had a Prerogative by Statute-Law And the dispensing with that falls within the Rule in Moor agreeing with the Lord Coke in the Case of Penal Statutes Yet even thus much was a Point gain'd by the Prerogative since the first of H. 7. for it is then made a Doubt before all the Judges of England in the Exchequer Chamber and adjourned over for the difficulty Whether the King could license the Shipping Woolls elsewhere than at Calice one of the very Instances which Sir Edward Herbert relies on And chief-Chief-Justice Hussey was positive that the King could not license it tho' indeed the Chief-Baron and some others held as Fineux did afterwards Wherefore no body of less assurance than our Chief-Justice can say from these Cases results this plain Syllogism Whatever is not prohibited by the Law of God but was lawful before any Act of Parliament made to forbid it the King by his Dispensation may make lawful again to that Person who has such Dispensation tho' it continues unlawful to any body else c. In which if we grant his Major I will own the Conclusion to bring it to Sir Edward Hales his Case is not criminal Yet the Proposition is so pernicious striking at the very Foundations of our Government that if there were a Resolution in stead of an extrajudicial Opinion giving that Countenance which even that loose Opinion does not yet it ought to be rejected For if all Acts of Parliament contrary to Magna Charta are void as some have held I am sure much more so would such Resolutions of Judges be and that such an one would be contrary to that Great Charter is evident for no Man can say that all things prohibited by Magna Charta are prohibited by the Law of God. To come to Sir Edward's next Great Case as he calls it but indeed the onely one which has colour'd the Resolution to the World which is that 2 H. 7. Notwithstanding his Promise he has not been so fair to give the Words of that Case or so much of them as is material lest every body might judge of how little use it would be to him nay lest Men should be for satifying their own Eyes he has not directed to the Folio The English of the material part is thus In the Exchequer Chamber all the Justices were shewn for the King how King Edward the Fourth by his Letters Patents had constituted the Earl of N Sheriff of the same County and had granted the said Earl the Office of Sheriff of the said County for the Term of his Life with all the other Offices thereto belonging rendring to the King at his Exchequer annually 100 l. without any Account or any other thing to be given for it c. Now 1. Whether this Patent was good And also 2. How this Patent shall be intended were the Points in question And as to the first Point the Justices held the Patent good for it is a thing which may well be granted for Term of Life or Inheritance as divers Counties have a Sheriff by Inheritance and this commenc'd by a Grant of the King. Then was shewn a Resumption and then was shewn a Proviso for H. Earl of N. so that the Patent remains in its force Radcliff shews the Statute of 28 E. 3. c. 7. and 24 E. 3. c. 5. That no Sheriff shall be more than one Year c. altho' he had a Non obstante And notwithstanding this that the King shall always have his Prerogative as of the Value and the Certainty of the Land and other things granted by the King and of Woolls shipp'd and of Charters of Murder and many other Cases where the Statutes are That Patents that want these things shall be void yet the Patenrs are good with a Non obstante But without a Non obstante the Patents are void by reason of the Statutes so here the Patent with a Non obstante c. This is all that is said in the Book upon the first Point upon which 't is observable 1. By the Book it would seem that this Radcliff was but a Serjeant at Law for at the end of the Case Brian Justice demands of Brian Radcliff c. Yet indeed I find upon search that he was a Baron of the Exchequer 2. What Radcliff says is after the Resolution of the Judges over and no way influenc'd that 3. Whereas Sir Edward Herbert says the Resolution was upon 23 H. 6. c. 1. Radcliff who should better know the Subject of Debate discourses only concerning the Statutes 28 E. 3. c. 7. and 12 E. 3. c. 5. which are barely prohibitory without any mention of Non obstantes or any voiding or disabling Clause Indeed Radcliff it being upon a sudden Discourse as the Book shews mistakes the Statutes as if they had such Clauses and Brook who cites part of the Patent which it seems he had seen says there was in it a Non obstante to the Statutes 28 E. 3. c. 7. and 12 E. 3. c. 9. Fitzherbert indeed says R. objected the 23 H. 6. but for that sit liber judex 4. But above all tho' our Chief-Justice calls them the Judges Enemies who say the Point of Non obstante is not resolv'd in this Case which he calls Confidence and that they may as well deny one of the ten Commandments 't is manifest beyond contradiction that the Resolution ended at issint que le Patent demurr en
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
this Non obstante Matthew Paris calls a detestable addition against all Reason and Justice and when the year after King Henry urg'd the example of the Pope for Non obstantes The Prior of Jerusalem says God forbid you should use this unpleasant and absurd word as long as you observe Justice you may be King and as soon as you violate it you will cease to be King. Which shews how little Foundation in Law it then was thought to have and what the whole Nation thought of the Pope's use of it may be seen at large in Matthew Paris and Mr. Prin's Animadversions on the 4 th Institute Farther the Reasons given why the King ought to have this Power fail here upon many accounts 1. In that the Interest of the whole of which the Legislators are the best Judges when they make the Law without Exception ought to outweigh all private Inconveniences 2. The Law has provided a more certain and equal Remedy having taken as sufficient Care for the meeting of Parliaments once a Year at least and I may say sitting too as it has for the sitting of the Common Courts of Justice as appears from the several Statutes in Print and others in the Rolls which avoid the common Cavil upon the words Oftner if need be And these were like the famous Triennial Act Provisions for the greater certainty of meeting so often at least but no Recessions from the old Law which as appears both by the Mirrour and the Life of King Alfred was for the Great Council to meet twice a year at London 3. The great Reason assign'd in the Latin Quotation from the Lord Cook Propter impossibilitatem praevidendi de omnibus particularibus which is after distinguish'd as to Person Time and Place can by no means be applied to the Case in question For 1. The Law was made but very few Years before their Lordships Resolution and not grown more inconvenient by length of time to any particular Person than it was at the making of the Act. 2. The Law-makers had in their immediate prospect every particular Person of the Romish Communion and the Time when and Place where the Danger would happen if any such were Commissioned Let us now see what help he can have from his second Quotation from the Lord Cook which is 7 Rep. f. 73. but he intends I suppose f. 37. and would have it believ'd that it was the Opinion of all the Judges of England 2 Jac. 1. That the King may dispense with any particular Person that he shall not incur the Penalty of the Statute tho' it be an Act made pro bono publico and that this is a Trust and Confidence inseparably annex'd to the Royal Person of the King in which 1. He again overthrows his Distinction of malum in se and prohibitum making that Power at large in relation in any Statute pro bono publico 2. He manifestly perverts the Lord Cook 's sense whose Words are When a Statute is made pro bono publico and the King as Head of the Commonwealth and the Fountain of Justice and Mercy is by all the Realm trusted with it this is a Trust and Confidence inseparably adjoyn'd and annex'd to his Royal Person in so high a Point of Sovereignty that he cannot transfer it to the disposition or power of any private Person or to any private Use for this was committed to the King by all his Subjects for the Publick Good c. But true it is that the King can upon any cause moving him in respect of Time Place or Person c. make a Non obstante to dispense with any particular Person that he shall not incur the Penalty of the Statute Where the sole Question was of transferring over a Penalty granted to the King as entrusted by all the Realm to see the Statute put in execution by inflicting the Penalty This Trust is adjudged inseparable and not to be transferr'd over but that however the King may dispense with the Penalty granted to himself Upon which I must say our Chief Justice has made a very foul Stretch for what is this to the Informer's Part concerning which the Question before him was But surely there is a mighty difference between these two Propositions Where the Subjects have entrusted the King with a Statute made for the Publick Good this Trust is inseparable and cannot be transferr'd to another but the Statute so entrusted may be dispens'd with which is all that is to be gather'd from the Lord Cook and this Tho' an Act be made for the Publick Good yet the King may dispense with it and this is a Trust and Confidence inseparably annex'd to the Royal Person of the King which is Sir Herbert's perverse Comment In short Lord Cook says Where the King is entrusted with the Execution of a Statute made for the Publick Good he may dispense with that Statute Sir Edward Herbert says He may dispense with any Statute made for the Publick Good. Upon which 't is to be observ'd That the Question in the Lord Cook was not of Dispensing but granting over the Penalty which Penalty he says is not to be transferred over The other would make it of Dispensing and that that Power is inseparable and not to be transferr'd so apparently changes the State of the Question His next Step is to the Year-book of H. 7. f. 11 12. in which he leaves us to seek the Year which is 11. This he calls the first and great Case which he cites wherein the King 's Dispensing Power is described and limited There is a diversity says the Book between malum prohibitum and malum in se as a Statute forbids any Man to coin Money and if he does he shall be hang'd this is malum prohibitum for before the Statute Coining Money was lawful but now it is not so and therefore the King can dispense with it So if a Man ship Wooll in any place but Calice it is malum prohibitum because it is prohibited by Act of Parliament But that which is malum in se the King nor no other Person can dispense with as if the King would give a Man power to kill another or license one to make a Nusance in a High-way this were void and yet the King can pardon these things when they are done Upon this Case 't is observable That the Power of Dispensing is here asserted in relation to Things and not Persons Wherefore according to this taken in Sir Herbert's Latitude the King may grant Dispensations to all in general where the Matter is only malum prohibitum whereas he himself owns that the nature of a Dispensation is particular and given to particular Persons by name 2. Many things in Magna Charta nay the most are but mala prohibita and so Magna Charta its self may be dispensed with when he himself owns that the King cannot dispense with one Tittle of Magna Charta And