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
Case and the Judges go upon these Grounds 1. That the Kings of England are Sovereign Princes 2. That the Laws of England are the King's Laws 3. That therefore 't is an Incident inseparable Prerogative in the Kings of England to dispense with Penal Laws in particular Cases and upon particular necessary Reasons 4. That of those Reasons and those Necessities the King himself is sole Judge And then which is consequent upon all 5. That this is not a Trust invested in or granted to the King by the People but the ancient Remains of the Sovereign Power and Prerogative of the Kings of England which never yet was taken from them nor can be And therefore such a Dispensation being pleaded by the Defendant in this Case and such a Dispensation appearing upon Record to come time enough to save him from the Forfeiture Judgment ought to be given for the Defendant quod querens nil capiat per billam 'T is evident that these Propositions are very wide from any thing he has or could have urg'd from the Books unless where a Brand of Infamy has been set upon the Judges The Examples of which made in several Ages one would have thought might have given sufficient Caution yet indeed he might have had enough of this kind from those of the other Gown who I think are now pretty well asham'd of these Notions Whatever Power of Dispensing the King has the Books suppose it to be entrusted by the People but according to this Resolution it came down from Heaven the Lord knows how And as he goes upon the Supposition of an Absolute Sovereignty in the King inseparable from his Person as such will have it unless that be granted all that he builds upon it are but Castles in the Air For this we are to have recourse to our Constitution to see what that Power in the Prince is which the great Fortescue says is à populo effluxa deriv'd from the People But for that we have no occasion from any so much as pretended Proof of his Assertions nor can any be offer'd but from the Resolution of the infamous Ship-money-Judges which seems to run parallel to this but is indeed far short of it For tho' they made the King the sole Judge of the Kingdom 's Necessity yet they suppos'd it to be at a time when there was a real Danger to be prevented by the exercise of this Judgment whereas here it is abus'd to the bringing in what the Parliament labour'd to prevent But I must observe 1. That whereas Sir Edward Herbert owns the Dispensing Power to be of dark Learning and that it is very fit it should receive some Light from a Determination in Parliament that Judges may judge by more certain Rules which Acts of Parliament the King may and which he may not dispense with Grant his Premisses and there can be no Darkness in it for the Power will extend to all Cases as far as the Legislative does and that he has determin'd positively in this Point when he makes all things not forbid by God's Law to be dispensible by the King nay if he might dispense with every malum prohibitum that is not malum in se without such Qualification as I have shewn ought to be it would go farther even as far as God's Power who never dispenses with more than his own Positive Laws not such as are founded upon Eternal Reasons And thus the Positive Laws of God and Man would be subject to the Pleasure of the Prince 2. He has taken it out of the Power of the Parliament to settle the Bounds of this extravagant Power For what he ascribes he says never was taken from the Crown nor can be because forsooth 't is the ancient Remains of the Sovereign Power and Prerogative of the Kings of England Wherein by the way there is an Implication contrary to what he would infer for this implies that 't is but the Remains of a Power diminish'd and impair'd 3. His printed and parol Resolutions are not onely very different as is obvious by the Comparison but very contrary One says 'T is a dark Learning the other The Case is as clear as ever came before the Court. Tho' his Insincerity is sufficiently evident from every part of his Defence yet it may not be unprofitable for the Publick that he should be follow'd to those Instances in which he glories for which 't is not enough for him to shew some one Act wherein he is singular if he follows the multitude to sin in others even of the same kind which if he does he can no more acquit himself of Perjury and breach of Trust than the rest of the tainted Herd In Matters of Blood he affects the Reputation of great Tenderness and thinks he has been scrupulous ev'n to a Fault For says he in some Cases upon Statutes that had been adjudg'd Felony by wiser and better Judges than my self and it was highly for the King's Service that it should be so yet I would never give Judgment of Death because I could not satisfie my Conscience that those Statutes were now in force It is a Fault it seems not to give Judgment against his Conscience when the narrow Interest of the Court exacts it and other Judges influenc'd from thence would countenance it But we may observe that those Statutes concerning Soldiers of which he is to be understood not onely give no Warrant for such Judgment as is obvious to the meanest Capacity but if they could admit of any Question the unbiass'd Judgment of the then Recorder of London Sir John Holt ought to outweigh the whole Bench. But I wish our Chief Justice could as well acquit himself in the Case of the Lord Brandon The Fathers Heroick Merits of the Crown too great to be rewarded and the Son 's Hereditary Valour dangerous to those who had reason to fear brave Spirits occasioned the rigorous Prosecution of both The Father was oblig'd to change his Soil till it might become more equal not unmindful of our Saviour's Advice or rather Precept when persecuted in one country to flee into another that tho' he contemn'd Death he might not provoke it The Son falling into their Hands both his Life and Honour which the severest Trials approv'd to be most valu'd by him were design'd for a Sacrifice In subserviency to which our Chief Justice directed the willing Jury to find him guilty of High-Treason chiefly upon a suppos'd Conspiracy to seise the Castle of Chester which if true were but Felony by a Statute as to that part yet in force and so could be no Evidence of Treason Nor would he suffer the Fact to be found specially tho he pretended not to answer the Cases and Records which were cited to shew that the Matter alledg'd could not be Treason nor did the then Sollicitor undertake the Task notwithstanding that shew of Reasoning with which he labour'd to set aside the
THE LORD CHIEF JUSTICE Herbert's ACCOUNT EXAMIN'D By W. A. Barrister at Law. Wherein it is shewn That those Authorities in Law whereby he would excuse his Judgment in Sir Edward Hales his Case are very unfairly cited and as ill applied Vendidit hic auro patriam Dominumque potentem Imposuit leges fixit pretio atque refixit LONDON Printed for J. Robinson at the Golden Lion in St. Paul's Church-yard and Mat. Wotton at the Three Daggers in Fleetstreet 1689. THE Lord Chief Justice HERBERT's ACCOUNT EXAMIN'D WEre it not the Reproach of our Times to have had Men advanc'd to Courts of Judicature for other Merits besides Integrity and Learning in the Laws of their Country it might seem a great piece of Vanity in me to answer a Book stamp'd with the Name and Authority of a Chief Justice Yet perhaps I might be thought not without cause to take this as my more immediate Province having been the first of the Profession who ventur'd in Publick Companies to shew how wofully that innocent Book-Case 2 H. 7. in relation to Sheriffs has been mistook or wrested to serve for Colour to that hasty Judgment in Sir Edward Hales his feigned Case Wherefore how needful soever the Chief Justice may find it to make Protestations of his Sincerity this may supersede any such from me Nor would I willingly call his a Protestation contrary to apparent Fact especially considering that weakness of Judgment manifested by this Defence did he not give too great occasion for it 1. From the large Steps which he took to precipitate and as I am well assured to sollicit that Resolution 2. The manner in which he delivered it widely differing from what he now prints 3. The unfairness of his present Quotations And 4. The unhappiness not to say worse of those Instances which he is pleased to give of his Sincerity I shall not dispute or repeat his Lordships State of the Case But the Question upon it being Whether the King may by his Prerogative dispense with the Statute 25 Car. 2. c. 2. requiring all Persons in any Office under the King to take the Test against Popery I shall enquire 1. Whether those Books which he relies on as Authorities for his Judgment give any colour to it 2. Whether admit they did they would countenance the Resolution as he delivered it 3. Whether those Instances which he offers of his Sincerity may reasonably be taken for such 4. Whether he in any measure clears himself from the Imputation of being highly criminal His Lordship like a Master-Disputant begins as he thinks with a Definition of a Dispensation which he says is given by the Lord Cook Dispensatio mali prohibiti est de jure Domino Regi concessa propter impossibilitatem praevidendi de omnibus particularibus dispensatio est mali prohibiti provida relaxatio utilitate seu necessitate pensatâ Where I must say he very unlearnedly clogs the Definition of a Dispensing Power with the Person in whom 't is suppos'd to be lodg'd nay and the Reason too why it should be so which neither the Lord Cook nor Common Sense gives him any Warrant to bring into the Definition However it seems according to this a Dispensing Power in some Case or other is vested in the King which yet is far from proving any thing to his purpose for either the King may in all Cases dispense as to particular Persons and then his Distinction of malum prohibitum malum in se falls to the ground or else it reaches only to those Cases in which the Judgment or Flattery of Judges have ascrib'd it to him He adds out of the Lord Cook as an Enlargement upon what he calls the Definition Inasmuch as an Act of Parliament which generally prohibits any thing upon a Penalty that is POPULAR OR ONLY GIVEN TO THE KING may be inconvenient to divers particular Persons in respect of Person Time or Place for this purpose the Law gives a Power to the King to dispense with particular Persons Where the Lord Cook manifestly restrains the Penalty to such as is given the King as Head of the People upon which account only he calls it Popular nor indeed can be thought to take in what is granted to any Subject that will inform it being mentionâ—d without distinction whether before or after an Information commenced And that the Lord Cook 's Words here ought not to be strained farther is yet more evident from the Case of Penal Statutes on which Sir Herbert's Misrepresentations will occasion my more particular Remarks As Sir Edward considering what Interest he has serv'd may be presum'd something conversant with Priests and Jesuits He might among others of less use have consulted the Learned Suarez who after the Definition which he makes to be Legis humanae relaxatio in a distinct Chapter shews with whom the ordinary Power of Dispensing which he distinguishes from that which is delegated is lodged where he says Certum est eum habere ordinariam potestatem dispensandi qui legem tulit And he gives the Reason Quia ab ejus voluntate potentiâ pendet So that none can have this power but he or they who are vested with the Legislative exclusive of others or such as have it delegated from thence That the King has not the Legislative exclusive of others is what I have formerly prov'd at large and it lies on the other side to shew that the Dispencing Power bas been delegated to him Yet thus much may be said on the contrary 1 st That the King could not in Law be presum'd to have exercis'd such a Power by himself for that the ancient Law provided that he should have a Counsel chose in Parliament who as the Charter affim'd to be declaratory of the ancient Law and sworn at the Coronation of Hen. 3. has it were sworn quod negotia Domini Regis Regni fideliter tractabunt sine acceptatione personarum omnibus justitiam exhibebunt and that it was accounted the Law long after that appears by the impeachment of Roger Mortimer 4o. E. 3. part of which was that Whereas it was ordain'd in the Parliament next after the Kings Coronation that four Bishops four Earls and four Barons should stand by the King PUR LUY COUNSEILLER without whose assent NUL GROS BUSOIGN NE SE FEUST Nevertheless Mortimer would undertake to manage all by himself accroaching Royal Power and it is easily to be shewn that such a Counsel was in use or continually insisted on as the right of the Kingdom from the time of the Charter confirmâ—d 28. Hen. 3. till the end of the Reign of Hen. 6. 2. A Power to grant Non obstantes to Statutes could not have been a right in the Crown at Common Law for we have clear Proofs of its odious and condemn'd beginning from the sulpureous Fountain of Rome as an honest Popish Lawyer confest with a deep sigh 35 Hen. 3.
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.
26. Moor sup f. 714. Hobart f. 146. Vid. Vaughan f. 57. speaking of Lord Hobart's Judgment which is always accurate for the Reason of the Law. Account p. 27. Vid. Grebner cited in the Northern Star. Vid. Nostredamus Cent. 1.33.35.2.68.87.3.16.4.75.89.5.24.26.34.87.6.7.13.28.8.58.9.38.64.10.7.26.56.12.80 5th Stanza at the end Vid. Lord Cook 's c. of Penal Statutes 7 Rep. f. 36. Vid. Grot. de Jure Belli Pacis Vid. Falkner's Christian Loyalty p. 544 545. speaking of the Parisian Massacre c. But if ever any such strange Case as is proposed should really happen in the World I confess it would have its great Difficulties Grotius thinks that in this utmost Extremity the use of such Defence as a last Refuge ultimo necessitatis praesidio is not to be condemned provided the Care of the Common Good be preserv'd And if this be true it must be upon this ground that such Attempts of Ruining do ipso facto include a disclaiming the Governing those persons as Subjects and consequently of being their Prince or King. V. Bishop Bilson of Christian Subjection Ed. 1586. p. 280. I never deny'd that the People might preserve the Foundation Freedom and Form ef their Commonwealth which they forepriz'd when they first consented to have a King. Account p. 24. Rot. Parl. 1 H. 5. n. 22. Qe Dieu assoille A aucuny fait un affair a contre A nully Pur null Vid. Account p. 10. Vid. Serjeant Glanvil's Speech Rushworth's Coll. part 1. f. 573. 575. Account p. 25. Vid. Dr. Stillingst against Cressy from p. 426. to p. 461. Account p. 19. Account p. 19. Sir Matthew Mints Case Crook Car. f. 597. Account p. 31. p. 32. Vid Vaughan's Rep. f. 20. Edes v. Evesque d' Oxford 4 Rep. f. 78. b. Account p. 38. pag. 5. Vid. Rolls Abr. Brook. Fitzh tit Estoppel particularly Statham Si home soit oblige de garder le Peace puis Scire facias issist vers luy de ceo qil bat uneqe viet est trove coup puis cet port brief de trans vers luy de mesm le batie il pled de rien coup il luy estoppera per matter trove al suit le Roy c. So Brook. n. 59. Vaughan f. 358. Account p. 14. Vid. 7 Rep. p. 36. Account p. 21. Vaugh. p. 342. Account p. 27 28. Account p. 11. Supr p. 12. Thomas v. Sorrel f. 350. Ib. f. 347. Vaugh. f. 346. Account p 31. Supr p. 30. Vid. Lord Vaughan f. 339 340. L. Vaughan f. 344 345 346 347. Account p. 22. 2 Inst f. 559. 2 dly So Sibthorp Rushworth vol. 1. p. 422. V. Case of Resistance p. 200. See there such a Sovereignty as makes laws can repeal and dispense with them Fortescue p. 32. Ad tutelam namque legis subditorum ac eorum corporum bonorum rex hujâ—smodi erectus est ad hanc potestatem a populo effluxam ipse habet quo ei non licet potestate aliâ suo populo dominari See this condemn'd 13 14 Car. 2. c. 29. V. Bushw part 2. f. 608. Vid. Account p. 37. Account p. 8. Vid. Grot. de Jure Belli Pacis l. 1. c. 1. Sicut ut bis duo non sint quatuor ne a Deo quidem effici potest ita ne hoc quidem ut quod intrinsecâ ratione malum est malum non sit Account p. 37. 3 dly Account p. 1. Account p. 28. The Case Crook Car. 51. Hutton 134. is of one prest to serve beyond Sea. Witness the great endeavours to make him confess a Plot while he lay under Sentence of death Vid. 14 Eliz. c. 1. Rastal f. 411. * L. Russel's Trial f. 57. Sol. To conspire to levy War is an Overt Act to testifie the Design of the Death of the King and the Errour of my Lord Cook has possibly misled my Lord. This he goes to refute by the Cases of Story and Lord Cobham which were not of levying War within the Kingdom and besides were express'd by the Overt Act of Writing Vid. 3 Inst f. 14. Hales his Pleas of the Crown p. 13. Dyer f. 298. b. Sanderson's Hist of K. James f. 283. * Lib. Assiz 27. pl. 29. Of an Approver Shar'd says Il ne duist passer sans estre duement purge car tout sont en male * At Lord Russel 's Trial I am not certain whether I did hear something about a Declaration c. Trial f. 39. At Mr Cornish 's è contra †That such are not probi legales for Witnesses or Juries vid. 2 Bulst f. 144. alias 154.1 Brownlow p. 34. part 2.47 Rolls Ab. tit Chal. 657. Brook tit Tesmoins penult Fitzher tit Process 208. Dyer f. 34. a. Owen f. 22. Castle main's Trial f. 38.11 H. 4. 41. b. Godbolt 288. Fortescue p. 60. b. Fleta lib. 4. c. 8. Bracton de Coronâ cap. 3. p. 118. b. Rolls Ahr. tit Prer f. 222. Vid. de eodem Baluzium Tom. 1. f. 887.2.362 * Arundel's Case 6 Rep. f. 14. 26 H. 8. c. 1. repeal'd 1 2 P.M. V. 31 H. 8. c. 10. 4 thly Account p. 37. Vid. ib. Account p. 37. Vid. supr p. 40 41. Account p. 9. pag. 10. Vid. sup p. 43. Bracton l. 2. c. 16. Rex habet Superiorem Deum S. item legem per quam factus est Rex item Curiam suam viz. Comites Barcnes quia Comites dicuntur quali socii c. Fleta l. 1. c. 17. p. 17.2 has Superiores Which avoids the Cavil in the Royal Apol. ed. Anno 1684. p. 36. suppos'd to be Dr. Ashtons V. Account p. 23. V. Sup. p. 6. Plowden of Mines f. 322.10 Vaugham f. 419. Nota this was in a Case of less consequence the sending Process into Wales Brook Prescrip n. 6. Stat. West 1.3 E. 1. c. 39. Stat. de quo Warranto 18 E. 1. Prin's Animad f. 133. Vaughan f. 356. Vid. è cont Dr. Brady's compleat Hist dedicated to K. James 2. Pref. All the Liberties and Priviledges the People can pretend to were the Grants and Concessions of the Kings of this Nation and were derived from the Crown Founded upon his suppos'd proofs that W. 1. obtain'd this Land by conquest and govern'd it accordingly V. Brady's first Book p. 23. in Marg. refuted in Jus Anglorum Account p. 8. V. Sup. p. 5. V. Rolls ab tit Prer f. 180. 34 E. 3. c. 21. Nota This is one of the Cases mentioned by Fineux Sup. p. 12. Anno 1667. V. 3 Jac. c. 6. forbidding Trade to the Dominions of Spain 3. Inst f. 186. Rot. Parl. 50. E 3. n. 17 24 28. 51. E. 3. n. 75. V. Account p. 8. 37 H. 6. f. 4. This notrightly abridg'd by Brook tit Charter de Pardon n. 24.37 H. 6. f. 5. a. adjornatur 37 H. 6. 46. V. 5 E 4 f. 34. a. Where a Statute concerns only the King himself which the King may chuse to use at his Will c. 3 H. 7. f 15. b. Chief Justice Hussey citing Fortescue 2 R. 3. f. 12. If any one doubt this upon the words of the Book it appears beyond contradiction from its being brought about again by the Merchants whose Goods were seized 1 H. 7. f. 2. b. 3. a. V. Sup. p. 13. 3 Inst 154. Rolls Ab. tit Prcr. f. 179. Account p. 10. V. Sup. p. 36. Account p. 25. According to Kieble c. 7. but not printed there Vid. the Stat. barely prohibitory 28 E. 3. c. 7. 12 E. 3. c. 9. supr p. 16. V. Knighton Account p. 18. Account p. 25. See them censur'd in Vaughan f. 227 285 401. Moor a. f. 790 to 805. Vid. his Censure 4 Inst f. 336. 2 Inst f. 408. Bracton l. 1. c. 2. Si autem talia nunquam prius evenerint obscurum difficile sit eorum judicium tunc ponantur judicia in respectum usque ad Magnam Curiam Vid. 1 E. 3. 7. b 33 H. 6. 18. a Cest un Act de Parlement nos voilomus estre bien avis devant que nous adnullamus ascun act fait en le Parlement peradventure le matter doit attender jusque al prochein Parlement Account p. 34. Account p. 35. pag. 36. V. Mirrour a. p. 296. to 300. Tresylian Bealknappe c. Knighton f. 2726 2727. ib. f. 2695. Regaliam Ib. f. 2694. V. Glanvil p. 1. Crimen laesae Majestatis ut de nece vel seditione personae Domini Regis vel Regni Exact Collect ed. Anno 1643. p. 35. V. Dugdale's cron Ser. Account n. 33 39. Bilson of Christian Subjection p. 280. Glanvil Prol. Bracton v. l. 3. c. 9. Fleta lib. 1. c. 17. Fortescue c. 9. Mirror p. 9.