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A26142 An enquiry into the power of dispensing with penal statutes together with some animadversions upon a book writ by Sir Edw. Herbert ... entituled, A short account of the authorities in law, upon which judgment was given in Sir Edward Hales's case / by Sir Robert Atkyns ... Atkyns, Robert, Sir, 1621-1709. 1689 (1689) Wing A4138; ESTC R22814 69,137 66

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made it stronger No several Acts of Parliament have been made in divers Cases with express Clauses incerted in those Acts to make void all Non obstante's to the contrary of those Laws which one would have thought would have been strong enough and yet they all came to nothing for the Judges heretofore have resolv'd that if the King grant a Dispensation from such Laws with a Special Non obstante to any such Special Law mentioning the very Law that presently the force of that Law vanishes Therefore beside the Disabilities and Incapacities put upon them further to obviate this Mischief also and to frustrate all contrary Judgments and to prevent the Allowance of any such Grants and Dispensations with this Act by the Opinion of the Judges or future Resolution of any Court in Westminster-Hall to the contrary as if the Law-makers had foreseen this Danger too and to give a Rule to Judges in such Cases when any should happen to come before them There is this further Provision made by this Law that the granting or conferring of any such Office and Place is by express words adjudged void The words are And is hereby adjudged void It does not leave the Courts below to Judge it but this Law before-hand gives the very Judgment It directs the way of trying the Matter of Fact by Indictment c. and then declares the Judgment upon it and leaves it only to the Judges to apply that Judgment to the particular Case May the Judgment of any Inferiour Court controul the Judgment of the Supreme Courts Here is more then a threefold Cord to tie it An Oath a Sacrament a Declaration subscrib'd I look upon the two Oaths as one Cord. And these two Oaths are so much alike and to the same effect that Cardinal Bellarmine purposing to refute the Oath of Allegiance by a gross mistake bent all his forces against the Oath of Supremacy not minding the difference As King James the First in his Answer to the Cardinal hath observ'd in the Collection of his Majesty's Works fol. 263. The next Cord is the Sacrament The third subscribing a Declaration to remain on Record to all posterity And at last a Judgment in the very point by the King and Parliament the supremest Court of the Nation which must not be contradicted by any other Court nor by all the Courts of the Nation put together this Supreme Court exercises its Legislative and Judicial Power both at once and shall it all at last be lost labour Secondly Having given an Account of this particular Law upon which the present Case does arise I shall in the next place briefly speak concerning Law in general of what Force and Authority it ought to be which will make way for those Arguments that I shall raise from it For when we know the true Nature of a Law the Nature and Use of a Dispensation will be better understood The Name does oftentimes denote the Nature of a thing The truest derivation is that of Lex à Ligando from its binding quality and the obligation it puts upon us and this is most pertinent to the Matter in hand The Laws of England as all just and righteous Laws are grounded originally upon the Divine Law as their Foundation or Fountain The Supreme and Soveraign God among the Heathen is suppos'd to have the Name of Jupiter quasi Juris pater But more immediately Humane Laws have their Force and Authority from the Consent and Agreement of Men. All Publick Regimen says learned Hooker in his Ecclesiastical Polity of what kind soever seemeth evidently to have arisen from deliberate Advice Consultation and Composition between Men. To live says he by one Man's Will becomes the Cause of all Mens Misery this constrained Men to come to Laws A People whom Providence hath cast together into one Island or Country are in effect one great Body Politick consisting of Head and Members in imitation of the Body Natural as is excellently set forth in the Statute of Appeals made 24 H. 8. c. 12. which stiles the King the Supreme Head and the People a Body Politick these are the very words compact of all sorts and degrees of Men divided into Spiritualty and Temporalty And this Body never dies We our selves of the present Age chose our Common Law and consented to the most ancient Acts of Parliament for we lived in our Ancestors a 1000 Years ago and those Ancestors are still living in us The Law is the very Soul that animates this Body Politick as learned Hooker describes it the Parts of which Body are set to work in such Actions as Common Good requires The Laws are the very Ligaments and Sinews that bind together the Head and Members without which this Body is but a Rope of Sand or like the Feet of Nebuchadnezzar's Image Iron mixed with Clay that can never cleave one to another nor cement And so properly Laws have their name à Ligando in this respect too viz. from knitting together for as they bind by their Authority so they unite in Affection and strengthen And these Laws are made by Publick Agreement not impos'd upon Men against their Wills but chosen by the Prince and People They are that I may express it in our familiar and ordinary Terms the Articles of Agreement chosen and consented to by Prince and People to be the Rule by which all are to square their Actions Hence the Law is term'd The Act and Deed of the whole Body Politick The Rule by which the Prince Governs and the Subject Obeys From whomsoever the Designation of the Royal Person is that governs whether from Heaven or of Men be it the one or the other The Consent and Agreement of the whole Body Politick both Head and Members is the Rule of the Government David was made King by God's immediate appointment yet he himself call'd all Israel together to Hebron and there they made a Covenant with him This is that I am now speaking of the Law of the Nation made by general consent or a Scheme for the Government as a late Lord Chancelor terms it in his Survey of the Leviathan Every Just King in a setled Kingdom is bound to observe the Paction made to his People by his Laws But nothing can more lively describe it then the Preamble of the Statute of 25 Hen. 8. c. 21. where the Lords and Commons addressing themselves in their Speech to the King thus deliver themselves Namely WHere this your Grace's Realm recognising no Superior under God but only your Grace hath been and is free from subjection to any man's Laws but only to such as have been devised made and obtained within this Realm for the Wealth of the same or to such other as by sufferance of your Grace and your Progenitors the People of this your Realm have taken at their free liberty by their own consent to be used amongst them and have bound themselves by long use and
which is that such service is perfect freedom Hence our English Laws in Magna Charta are called Liberties Concessimus omnibus hominibus regni nostri has libertates subscriptas says King Henry the Third in the first Chapter of Magna Charta which Sir Edward Cook expounds to be meant of the Laws of England quia liberos faciunt says he And tho' this Statute of Magna Charta run in the stile of a Grant from the King in the word concessimus for the honour of the King yet as he says they were the Common Laws and Rights of the People before and it was made by the King Lords and Commons as is recited by the Statute of 15 Ed. 3. c. 1. Thus it appears what the true Nature and Properties of a Just Law are of how great Force and Authority a Law ought to be how dear and precious Laws have been heretofore to Prince and People and whence they have their Birth and Original Thirdly I come now to that Notion or Invention of a Dispensation the Power of relaxing or dispensing with a Law and enquire into the Original and Nature of it and the great Mischief that hath arisen from it The Pretence for the Use or Need of a Power of Dispensing is this viz. There is no Providence or Wisdom of Man nor of any Council of Men that can foresee and provide for all Events and variety of Cases that will or may arise upon the making of a new Law. But a new Law may sit heavy upon some particular persons or in some extraordinary Case that may happen let what care can be taken in the penning of it It is enough to commend a Law if it be beneficial to the greater number and be for the publick good Laws are fitted Ad ea quae frequentius Accidunt and not for rare and extraordinary Events and Accidents as the Romans had no Law against Parricide And the Law says better is a Mischief than an Inconvenience By a Mischief is meant when one Man or some few Men suffer by the hardship of a Law which Law is yet useful for the Publick But an Inconvenience is to have a Publick Law disobey'd or broken or an Offence to go unpunished Now from this suppos'd and imaginary defect of Law or some particular mischief or hardship sometimes tho' very rarely happening to some Men which hardship was not foreseen by the Makers of the Law altho' this is oftner pretended and feigned then hapning in truth occasion hath been taken to assert a Power in the Prince or chief Ruler to dispence with the Law in extraordinary Cases and to give ease or relaxation to the person that was too hard bound or tied to a Law for as I observ'd before the Law is of a binding and restraining nature and quality It hath the same specious pretence as a Law made 31 H. 8. c. 8. had which was of most desperate and dangerous consequence had it not speedily been repealed by the Statute of 1 E. 6. c. 12. The Title of that mischievous Act of 31 H. 8. is this An Act that Proclamations made by the King's Highness with the Advice of the Honourable Council meant of the Privy Council shall be obey'd and kept as tho' they were made by Act of Parliament The Preamble recites the King by Advice of his Council had thentofore set forth sundry Proclamations concerning Articles of Religion and for an Unity and Concord to be had among his Subjects which nevertheless many froward wilful and obstinate persons have wilfully contemned and broken not considering what a King by his Royal Power may do and for lack of a direct Statute and Law to coherce Offenders to obey those Proclamations which being still suffered should encourage Offenders to the disobedience of the Laws of God and sound too much to the great dishonour of the King 's most Royal Majesty who may full ill bear it Considering also that sudden Occasions fortune many times which do require speedy Remedies and that by abiding for a Parliament in the mean time might happen great prejudice to ensue to the Realm and weighing that his Majesty which by the Regal Power given him by God may do many things in such Cases should not be driven to extend the Supremacy of his Regal Power by wilfulness of froward Subjects It is therefore thought necessary that the King's Highness of this Realm for the time being with the Advice of his Council should make Proclamations for the good Order and Governance of this Realm of England Wales and other his Dominions from time to time for the Defence of his Regal Dignity as the Cases of Necessity shall require Therefore it is enacted that always the King for the time being with the Advice of his Council whose Names thereafter follow and all the great Officers of State are mentioned by the Titles of their Offices only for the time being or the greater number of them may set forth at all times by Authority of this Act his Proclamations under such Penalties and of such sort as to his Highness and his Council or the more part of them shall seem requisite And that the same shall be obey'd as tho' they were made by Act of Parliament unless the King's Highness dispence with them under his Great Seal Here at one blow is the whole Legislative Power put into the King's hands and there was like to be no further use of Parliaments had this continued Then there follows a Clause that would seem to qualifie and moderate this excess of Power but it is altogether repugnant and contradictory in it self And the Conviction for any Offence against any such Proclamation is directed not to be by a Jury but by Confession or lawful Witness and Proofs And if any Offender against any such Proclamation after the Offence committed to avoid the Penalty wilfully depart the Realm he is adjudged a Traytor And the Justices of Peace are to put these Proclamations into execution in every County And by another Act of 34 and 35 H. 8. c. 23. Nine of the Great Offices are made a Quorum c. for they could not get half the number to act under it The Act of 1 E. 6. c. 12. which repeals the terrible Law begins with a mild and merciful Preamble and mentions that Act of King H. 8. which as this Act of E. 6. does prudently observe might seem to Men of Foreign Realms and to many of the King's Subjects very strict sore extream and terrible this Act of King E. 6. does therefore by express mention of that Terrible Act wholly repeal it And so that Law to use the Lord Bacon's phrase was honourably laid in its Grave And God grant it may never rise again It is very probable that this Terrible Law was drawn by King Henry the Eighth's own hand by that expression in it that the King may full ill bear the Disobeying of his Proclamations and the dishonour done to him by it and by several
says that Historian Multis adjectis durissimus Conditionibus and amongst other per illud verbum adjectionem detestabilem Non obstante quae Omnem Extinguit Justiciam In another Bull he requires the payment of a Sum of Mony from the English Clergy Quocunque Privilegio seu Indulgentia Non obstante Licet presentes expressam de ipsis non faciant Menconem This very Phrase is grown most familiar in Letters-Patents with us and we see from whence it hath been borrowed That Temporal Princes at that time did not practise the like does evidently appear not only by their frequent Complaint of them but the Historian tells us It was then grievously feared that the Kings and Great Men would in time be infected with the ill Example of the Pope his words are Quod multi formidabant vehementer Ne Principes Laici Seculares exemplo Papae Edocti Non obstante talis vel talis Chartae tenore would revoke their Concessions too Therefore as yet it was not in practice by Temporal Princes no not in Letters-Patents much less in Laws I shall give one instance wherein we shall find the Pope teaching this very Lesson to the King of England K. H. the 3d and instructing him as his Schollar to write after his Copy King H. the Third had made several Grants to his Subjects Bishops Noblemen and others and had oblig'd himself by Oath never to revoke them Pope Gregory the Ninth by his Bull which Mr. Prin who had the keeping of the Records in the Tower says he found in the White Tower under Seal the Pope commands the King to revoke these Grants Juramento Instrument is predictis nequaquam obstantibus King Henry the Third was easily taught this Lesson and did soon put it in practice and being reprov'd by some about him for using of Non Obstante's the King justified himself by the Example the Pope had given him Nonne Papa says he facit similiter subjungens in Literis suis manifeste Non Obstante aliquo Privilegio vel indulgentia But as yet it was not exercised as to Acts of Parliament till a long time after What sad Apprehensions it rais'd in good Men may appear by an Example or two When one of these Patents with a Non Obstante in it was produc'd in the Courts of Westminster one Roger de Thurkeby who was a Judge of the Court of Common Pleas in the time of King Henry the Third upon the hearing of it says the Historian Ab alto ducens suspiria he fetcht a deep sigh and De predictae adjectionis appositione That is concerning this Clause or Addition of Non Obstante Dixit heu heu hos ut quid dies expectavimus ecce jam Civilis Curia exemplo Ecclesiasticae Coinquinatur a Sulphureo fonte Rivulus intoxicatur This plainly shews the time when the use of them was first introduced into England in Civil and Temporal Cases they were not used before the time of King Henry the Third which is not ancient enough to make a Prescription by the Rules of our Law and we see from whence they learnt it I shall now cite the Judgment of a Famous and Learned Bishop of those times concerning these Non Obstante's that of Robert Grostest or Great-head who per excellentiam was generally stil'd no more but Lincolniensis in the Book of his that is Entituled De Cessatione Legalium Publish'd by the late Dean of Windsor Dr. Reeves There are some Testimonies given of the Bishop out of Authors in the beginning of that Book Among others it is remembred of him that he sent a smart Epistle to the then Pope wherein he does cry out upon the Pope for that the Pope's Bulls did superaccumulate as he terms it the words Non Obstante which words says that good Bishop of Lincoln did Christianae Religionis puritatem hominum tranquillitatem perturbare And he does thereupon affirm the Pope to be Antichrist Nonne says he Antichristus merito dicendus est And to prove him to be Antichrist he further charges him Privilegia Sanctorum Pontificum Romanorum praedecessorum suorum Papa impudentur annullare per hoc Repagulum Non Obstante non erubescit sic diruit Reprobat quod tanti tot Sancti aedificarunt When Innocent the Fourth read this Bishop's Letter he fell a swearing by Peter and Paul that he would Confound him In tantam confusionem praecipitaret ut totius mundi fabula foret stupor prodigium And that he would command the King of England whom he there insolently term'd Noster Vasallus a Tenant or Vavasor Et ut plus dicam Mancipium his Property illum nutu nostro in carcerare But the Cardinals then about the Pope advised him to consider better of it for said they Ut vera fateamur vera sunt quae dicit Catholicus est imo Sanctissimus Of this Bishop says Mr. Camden in his Britannia he was Terrificus Papae Regis Redargutor manifestissimus veritatis amator Henry de Knighton adds this of him Ad Innocentium Papam misit Epistolam satis tonantem a thundring Epistle qua de re ad curiam vocatus Excommunicatus appellavit a Curia Innocentii ad Tribunal Christi And this Usurped Power tho' used with more modesty at first yet in a short time it grew to that heighth that it prov'd intolerable and insolent The Bull of Pope Pius the Fourth publishes Decrees Non obstantibus Constitutionibus Ordinationibus Apostolicis Another Dispensation of the same Pope's runs in these words viz. Licet Christus post coenam instituerit sub utraque Specie Panis Vini Venerabile Sacramentum tamen hoc Non Obstante c. The Pope takes upon him to Dispense with that Sacred Institution A conficientibus for so he prophanely expresses it sub utraque a Laicis tantum modo sub Specie Panis suscipiatur In the Oath of a Bishop to the Pope extant in the Roman Pontifical set out by Pope Clement the Eighth the Bishop upon his Oath doth acknowledge amongst other Regalia Petri That the Pope can make void Promises Vows Oaths and Obligations to Laws by his Dispensations Dr. Marta de Jurisdictione affirms That Papa de Plenitudine potestatis potest Dispensare contra jus Divinum contra Apostolum est super omnia Concilia quae interpretatur tollit Corrigit The Glossator upon the Canon Law avowed by the Rota of Rome as the History of the Council of Trent does quote him holds the Pope can Dispense against the Old Testament and the Four Evangelists and against the Law of God. Bishop Jewel in his Defence of The Apology of the Church of England against Harding brings in one of their Canonists that holds That the Pope Privilegium dare potest contra jus Divinum Papa Dispensare potest de Omnibus preceptis veteris Novi Testamenti It is part of the Description given of Antichrist by the Prophet Daniel
no respect of persons and as before I observ'd from Aristotle is a Mind without Affection Now the nature of a Dispensation is to favour some to set some at liberty from the obligation of the Law and is a kind of praeterition of others leaving them still under the tye and obligation and obnoxious to the Penalty if they transgress Whereas in a well govern'd Kingdom there ought to be Unum pondus and Una Mensura in distributive as well as commutative Justice It was part of the Oath that was taken by King William the First who is commonly stiled the Conquerour that he would Aequo jure Anglos Francos tractare Which Oath favours nothing of a Conquest nor does it run in the stile of a Conquerour And it is the Oath of a Judge at this day That he shall truly serve the King and his People c. That he shall do Right to every Person notwithstanding the King's Letters that is notwithstanding any Non Obstante It is a Maxim in Law Quo modo aliquid Ligatur eo modo dissolvitur Now a Law being made by Consent of all should not be Dissolv'd again but by the like Consent that is by Authority of the King and Parliament who have the Legislature Dr. Willet in his Synopsis Papismi makes a Difference between a Toleration and a Dispensation That of Moses in case of Divorces was a Tolleration A Dispensation says he must be of as high a Nature as the Institution None but the Law-Maker can Dispence with the Law not he that hath but a share in the Legislature And from hence I shall take occasion to assert and shall endeavour to make good my Assertion by Law that the Lawful Power of Dispensing with an Act of Parliament that concerns the Publick is only in the hands of those that have the Legislative Power I confine my self to such Acts only as concern the Publick as the present Act we have now to do with does in a very high degree And therefore I hold that none can Dispence with such a Law but the King and Parliament and such as they entrust with it I shall begin to prove this by an Act of Parliament which is the highest Resolve and Authority in our Law It is in the Preamble of the Act of 25 Hen. 8. c. 21. the Statute of Dispensations and the Preamble of a Statute is Law as well as the enacting part or body of the Law. It is in effect a Declaration of what was Law before at least it shews the Opinion and Judgment of the Law-Makers which is of high Authority It first utterly disowns and renounces the Pope's long usurped Claim and Pretence of Dispensing with any Person within this Realm even in Matters Spiritual tho' by him practis'd for many Years I desire to observe upon this that long usage by an Usurpation gives no lawful Right But I would further observe too that where it hath been long admitted and used it is in such Case reasonable for none but the Supream Court to undertake it and declare against it In the next place this Act of Parliament does affirm That this Realm of England is subject to no Laws but such as have been made and taken by sufferance of the King and his Progenitors and the People of this Realm at their free Liberty by their own Consent to be used amongst them and have bound themselves by long Use and Custom to the observance of them 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 This shews the Original of our Common Law. This likewise clearly proves that whatever is imposed upon the People without their Consent hath not the Authority of a Law And it cannot be shewn that ever the People did consent to this Power or Practice of Granting Dispensations But it plainly appears that our Acts of Parliament are so far from approving or countenancing of it that they have often fenced against it altho' in vain hitherto And tho' the Usage have been very Ancient as I have shewn yet that gives it no lawful Authority for this Preamble declares those only are Laws binding to the People that have been Originally establish'd as Laws The Word Originally refers no doubt to our very Primitive Institution which is Common Law or at least to a time so ancient as that the Original cannot be traced out nor shewn and then it shall be presum'd to be the Common Law. Now I have I hope clearly evinced that the very first invention and practice of Dispensations by the Bishop of Rome is not time out of mind nor can the Usage of it here by imitation of the Pope reach up to a Prescription in the judgment of our Law nor by the Rules of it For Sir Edward Cook in his first Instit. Fol. 115. treating of a Prescription and the nature of it says That if there be any sufficient proof of Record or Writing to the contrary albeit it exceed the Memory of any Man living yet it is within the Memory of Man in a legal sence it had its Original since the beginning of the Reign of our King Richard the First that is in the time of King John and King Henry the Third But that which makes it much the stronger is that this Declaration of the King and Parliament against such Dispensations and Laws introduc'd without the King and Peoples Consent does conclude with Negative Words viz. and not otherwise and is exclusive of all other that is that nothing is Law without their Consent And this Statute of Dispensations proceeds further to shew where the true and lawful Power of Granting Dispensations is vested in these words viz. It stands with natural Equity and good Reason that in all Laws humane within this Realm the King and both Houses representing the whole State of the Realm have full Power to Dispense and to Authorize some Person to Dispense with those and all other humane Laws of this Realm and the same Laws to abrogate annull amplifie and diminish as it shall be seen unto the King the Nobles and the Commons of the Realm present in Parliament meet and convenient for the Wealth of the Realm and then it does dispose of the Power of Dispensation in Matters Ecclesiastical to the Archbishop of Canterbury some whereof are to be confirm'd by the King and others that may be good without the King 's confirming And altho' the body or enacting part of this Statute extend only to Causes Ecclesiastical yet the Preamble does reach expresly to all humane Laws This Statute of 25th of Henry the Eighth was made in the time of such a King as we all know by reading our Histories stood highly upon his Prerogative and would never have consented to such a Declaration concerning the Power of Dispensing if it had been a special Prerogative in the Crown and had there
So also as the Commons may disagree thereunto at the next Parliament with this Protestation too that this their Assent being indeed a Novelty these are the very words be taken for no example This is granted with abundance of caution and jealousie and proves it is not ancient The Commons do agree to the Power granted to the King for the Moderation of the Statutes touching Provisors in the last Parliament beseeching the King that the same may not license any Cardinal or Stranger to enjoy any Benefice within the Realm It was enacted by the Lords and Commons that Tydeman late Abbot of Beaulew and Elect of Landaf by the Pope's provision should enjoy the same Bishoprick notwithstanding any Act so always as this be taken for no example That the sale of Tin may be at Lostwithiel in Cornwal and shall not continue at Calais Notwithstanding the Council may grant License to Merchants to carry the same Tin to what parts they will as to them shall seem good Here the Power of Dispensing is delegated to the Council Upon the request of the Commons the King promiseth that he will not from thenceforth dispence with the Statute of Provisions to Benefices This implies that the King had practis'd it and we know who began the practice and who taught it to others and this Record shews it was without consent and was a cause of complaint and the King promises to reform it for the future But what signifies a Promise where a Law and an Oath is too weak to secure it this Promise doth not confer a new Right but is to reform an unjust Practice I shall use one Argument more against this exercise of the Power of Dispensing with Acts of Parliament as it hath of late been practis'd and that Argument shall be rais'd from the great Inconvenience and Mischief that will ensue upon it to the Kingdom it may occasion the infrequency of Parliaments by taking much of their power out of their hands Laws are many times made but probationers and temporary to the end that if upon experience of them they be found to be too severe or strict and to sit hard upon any persons that the Parliament at their next meeting may moderate or relax the severity or inconvenience that may arise by them But if there be another way allowed for the doing of this Work there will be the less need of a Parliament and so other Work that requires also their meeting may remain unremedied If we consider how frequently the Parliament ought to meet and and how often they did anciently meet we shall easily be convinc'd that the relaxing of a Law or giving remedy where the Law was upon experience found inconvenient was a work properly belonging unto them and there was no need of resorting to any other help for who should cure or reform a Law if any thing were amiss in it but the Law-makers See the Statute of 6 H. 8. c. 18. the Book of Statutes at large concerning Bristol Our Saxon King Alfred and his Wise Men that is the great Council of the Kingdom ordained that a Parliament twice a Year and oftner in time of Peace should meet in London Thus says that ancient Book stiled The Mirrour of Justices c. 1. sect 3. pag. 10. by 4 E. 3. c. 14. It is accorded that a Parliament shall be holden every Year once or more often if need be this does not abrogate not alter King Alfred's Law. By 36 E. 3. c. 10. many Laws had passed in that Parliament of 36 E. 3. which are there called Articles as anciently our Statutes were drawn into certain Articles and so passed as being Articles of Agreement betwixt the King and his Subjects as I had occasion to observe in the beginning of my Discourse and this Statute of 36 E. 3. provides that for maintenance of the said Articles and Statutes and redress of divers Mischiefs and Grievances which daily happen a Parliament shall be holden every Year as another time was ordained by a Statute referring to the Statute of the Fourth of this King. The Act of 16 Car. 2. c. 1. for repeal of the Triennial Act made 16 Car. 1. in the last Paragraph recites that by the ancient Laws and Statutes of this Realm made in the Reign of King Edward the Third Parliaments are to be held very often and this Act of 16 Car. 2. makes a new provision to the end as the words are there may be a frequent calling assembling and holding of Parliaments once in three Years at the least Now let us enquire what the proper Work of a Parliament is which the said Statute of 36 E. 3. mentions in part viz. for maintenance of the Articles and Statutes and redress of Mischiefs and Grievances that daily happen as that Statute recites Sir Tho. Smith who was principal Secretary of State in his Treatise de Republica Administratione Anglorum L. 2. c. 2. fol. 50 51. says this of the Parliament In Comitiis Parliamentariis posita est omnis augustae Absolutaeque potestat is vis veteres leges jubent esse irritas novas inducunt praesentibus modum constituunt There is the true dispensing power Incerti juris controversias Dirimunt Bracton writes of this High Court Habet Rex Curiam suam in concilio suo in Parliamentis suis ubi terminatoe sunt dubitationes Judiciorum novis injuriis emersis nova constituuntur remedia The Mirrour of Justices c. 1. pag. 9. says that Parliaments were instituted to hear and determine the Complaints of the wrongful Acts of those against whom the Subject otherwise could not have common Justice that is against great and powerful Delinquents Nihil prodest says Bracton Jura concedere nisi sit qui Jura tueatur So that there is need of a frequent resort to be had to the Law-mamakers not only to resolve difficulties of Judgments but to keep the power of Interpretation within its due bounds and the Law hath taken care for frequency of Parliaments Sir Francis Bacon in his Advancement of Learning gives this excellent Advice to Law-makers and to those to whom it belongs to defend the Laws Let not says he Praetorian Courts speaking of Courts of Equity have power to decree against express Statutes under pretence of Equity for says he if this should be permitted a Law interpreter that is a Judge would become a Law-maker and all Matters should depend upon Arbitrament that is upon an Arbitrary Power And Arbitrament would encroach upon and at last swallow up Law. The power of extending or supplying or moderating Laws little differs says he from the power of making them Courts of Equity sometimes under the pretence of mitigating the Rigor of the Laws and such is the Power of Dispensing relax the Strength and Sinews of Laws by drawing all to Arbitraments he was well able to judge of this having been Lord Chancelor And it is his 46th Aphorism That is the best Law which gives the least
Recompence by a Revenue of Inheritance in part of the Excise to the King in lieu of Purveyances It is sober Advice given by Learned Grotius in his Book De Jure Belli pacis 82. Let us not says he approve of all things tho' delivered by Authors of greatest Name for they often serve the Times or their Affections and bend the Rules as occasion requires This Resolution of all the Judges in the Second of Henry the Seventh is again cited in Calvin's Case in Sir Coke's Seventh Report and there a Reason is given to justifie that Resolution which is not so much as touch'd upon in the Report itself of 2 H. 7. but it has been studied and found out since that Resolution viz. That an Act cannot barr the King of such Service of his Subject which the Law of Nature did give him And this is the main Reason insisted on in the late Judgment given in Sir Hales's Case as I am informed which is the only Case that I find which came to be argued upon the very point yet it was but lightly spoken to for that of 2 H. 7. which is the first of the kind was not upon a Case that came Judicially before the Judges but was upon a Consultation only with the Judges and without Argument Nor in any other Authorities that I have cited grounded upon that Resolution of 2 H. 7. did the Point directly come in question Judicially And Calvin's Case is the first that I find which offers this special Reason viz. That no Act of Parliament can restrain the King from commanding the Service of his Subject but it is an inseparable Prerogative in the King and as Sir E. C. speaks in his 12 Rep. Tho' an Act makes the King's Patent void and tho' the King be restrained to grant a Non Obstante by the express words of the Act and tho' the Grantee is disabled by the Act to take the Office yet the King says Sir Edward Coke may by his Royal Soveraign Power of Commanding command a man by his Patent to serve him and the Weal-Publick in the Office of Sheriff for Years or for Life And this the King may do for such Causes as he in his Wisdom shall think meet and profitable for himself and the Common-weal of which he himself is solely Judge says Sir E. C. So tho' the King and Parliament have adjudged and declared by a Law such a person or such a sort of persons to be altogether unfit for such a Service or Office. As for Example They have adjudged Papists who own a Forreign Authority and Jurisdiction and who hold Doctrines destructive and contrary to the Religion Established in this Kingdom to be very unfit and uncapable of being entrusted with the maintaining of the Government and the Religion Established by Law in this Kingdom Yet according to late Opinions and Resolutions tho' the King himself by the Advice of his Great Council have so adjudged and declared yet he may do otherwise and he may employ a Papist to defend the Protestant Religion and he is the sole Judge of the fitness of Persons for his Service This is the Discourse this is the Argument and Reason used Will this Reason be allowed of shall the King be the sole Judge of the Persons fit to serve him in all Cases and is it an inseparable Power and Prerogative in the Person of the King I shall put a Case wherein the Judges depart from this Opinion and appear to be of another mind In the Lord Anderson's Reports the 2d Part 118. It is there said If an Office in the King's-Bench or Common-Pleas be void and the placing of the Officer belongs to the King if the King grant it to a person not able to execute it the Grant is void as 't is there held by many of the Justices And there a Case is cited out of 5 E. 4. rot 66. where one Tho. Wynter was placed by the King in the Office of Clerk of the Crown in the King's-Bench The Judges before the King himself did declare him to be Inhabilem ad Officium illud pro commodo Regis populi sui Exercendum and he was laid by and one Roger West at the commendation of the Judges was put in Will any man presume to say the person is unfit when the King who is the sole Judge of the fitness of persons to serve him hath adjudg'd him fit yes the Judges in a Case that concerns the Courts where they sit it seems will controul the King 's own judgment and judge the person inhabilis and hold the Grant void in such case To compare our present Case with this The King and Parliament by a Law have adjudged the Papists unfit to be entrusted with the Government and with the preserving of the Reform'd Religion but says the Judges if the King without the Parliament judge otherwise his judgment shall prevail why not as well in the case of an Office in the Courts at Westminster which does belong to the King to dispose of as in an Office that immediately concerns the Safety of the King and Kingdom and the great concernment of Religion So here is one Command of the Kings set up in opposition to another Command of the King. A Command of the King upon private advice or it may be possible gained from him by surprize by an importunity or an undue solicitation against a serious solemn deliberate Command of the King upon advice with his great Council and with the Consent of the whole Kingdom this is the very Case before us This is against all reason and against the Examples of the greatest wisest and most absolute of Kings and Princes who commanded their Judges to have no regard to any Commands of theirs that were contrary to Law. Vinius the Civilian in his Commentary on the Imperial Institutes fol. 16. gives this Rule Rescripta Principum contra Jus vel utilitatem publicam Elicita à Judicibus improbari etiam ipsorum Imperatorum constitutionibus jubentur Princeps non creditur says he aliquid velle contra utilitatem publicam concedere 21 H. 8. c. 13. sect 10 11 27. Dispensations for Pluralities contrary to Act are declared to be void Hob. 82 149 146 155. The King is never by Law supposed ill affected but abused and deceived for Eadem praesumitur mens Regis quae est Juris Grotius de Jure belli pacis 112 113. Amongst the Persians the King was Supreme yet he took an Oath at his entrance and it was not lawful for him to change certain Laws made after a particular form If the King Establish the Decree and Sign the Writing it may not be changed according to the Law of the Medes and Persians which altereth not as we read in the Book of Daniel 6 Dan. 8. 12 15. By the Act of 2 E. 3. c. 8. it is accorded and established that it shall not be commanded by the Great Seal nor the little Seal to disturb or
delay Common Right and tho' such Commandments do come the Justices shall not therefore leave to do right in any point Grotius ubi supra 117. Antiochus the third sent a Rescript to the Magistrates that they should not Obey him in case he should command any thing against Law. And Constantine published the like That Orphans and Widows be not constrained to come to Court for Justice no not if the Emperor's Rescript be shewed In the story of Daniel we read that King Darius signed the Writing and the Decree which indeed was but a snare laid for Daniel and Daniel had fallen into the snare The King was his friend but could neither dispence with him nor pardon him tho' he were sore displeased with himself for signing the Decree And the King set his heart on Daniel to deliver him and he laboured says the History an whole day till the going down of the Sun to deliver him he wanted such Judges as Cambyses had to find out an Evasion But the King himself sealed the stone that was laid upon the mouth of the Den with his own Signet and with the Signet of the Lords that the purpose might not be changed concerning Daniel Nihil opus est says a learned Author writing of the Government of England Licentiam dominandi in Rege Coerceri quoniam quicquid in administranda rerum summa vel contra Patriae leges vel minus ex populi commodo gestum fuerit Id omne Ministris Luendum rejicitur Adeo ut non ab adulatione sed ab aequitate summa fluxerit Notum Axioma apud Nostrates Rex Nunquam potest Errare aut cuiquam injuriam facere Quippe in Administros Conciliarios quorum est Admonere Principem iniqua volenti denegare operam aut officio renunciare potiusquam contra Leges quicquam jubenti parere tam culpa omnis quam paena derivari solet debet And we have seen Examples of such in our times many that have left good Places rather than act against their Judgments There is a rare Example of this in the French History Lewis the Eleventh King of France at the Pope's importunity had signed a Concordate for setting aside the Pragmatical Sanction which was made in defence of the Liberties of the Gallican Church and the King had undertaken to the Pope that his Parliaments should approve of what he had done and the King sent a Command to the Parliaments accordingly and required them to give a punctual obedience to his Order The King's Advocate Johannes Romanus argued stoutly against it and being threatned to be turned out of his Place for his pains he said The King had freely bestowed that Office on him and he would discharge it faithfully as long as the King thought fit to continue him in it and should be ready to lay it down whenever it pleased the King But he would suffer all things rather then do any thing against his Conscience or the King's Honour and the good of the Kingdom and out he went. It will be admitted by those that argue for the Prerogative of Dispensing that tho' the King without the Parliament cannot dissolve nor repeal no nor so much as suspend the Law totally tho' but for a time but he may dispence with it as to some particular persons and for some limited time and so the Law will still remain in force against all others Those that will argue thus do yet hold that the King is the sole Judge who are to be dispensed with so that he is not limited to any number nor to any time so that tho' he may not in the gross dispence with the Law yet he does the same thing by retail which comes all to one or it is in his Royal Will and Pleasure to do so We are nothing beholding to the Judges if the King uses his Prerogative with moderation According to that sort of Argument that is called Inductio which is a particularibus ad Universalia progressus He that can dispence with A B C and so with the 24 Letters one by one does in truth dispence with the whole Alphabet but he must not do it Uno Ictu And we find it by Experience What signifie those several Acts of Parliament that forbid a Judge of Assize to Execute that Office in the County where he was born or dwells they are easily and daily dispens'd with How many Acts have been made against pardoning of Murder and to make void such Pardons and what fruit have they had Let us hear a learned Judge plainly speaking his experience and his mind in it Stamford in his Pleas of the Crown fol. 101. says that tho' there are words to null and make void these Charters of Pardon yet by putting into the Charters of Pardon these words viz. Non Obstante aliquo Statuto in contrarium Edito the force of these Statutes is taken away and not only of these says he but also of all others in which this Clause of Non obstante is put and it is put says he in every Letters Patents And fol. 102. he says that the Statute of 13 R. 2. Stat. 2. c. 1. and the rest of the Statutes to the same effect have always been destroy'd by that Clause of Non obstante and so false Suggestions have continued says he to this day without redress and abound from one day to another to the great detriment of the Publick Weal and do not cease till Princes have more regard what Charters they pass and he might have added till the King's Attorney and Council at Law shall have more Fidelity and Courage I hear that in justification of such a Dispensation as this it was said in the Argument of the Case of Sir Edward Hales in the Court of King's-Bench That there is no Law whatever but may be dispensed with by the Supreme Law-giver as the Laws of God may be dispensed with by God himself as appears by God's command to Abraham to sacrifice his Son Isaac So likewise may the Laws of Man be dispens'd with by the Supreme Legislator I fully agree to this and have already argued upon this ground That the Legislators and no other can dispence with their own Laws and I have given several Instances and Examples wherein it was so practised that is by King and Parliament But does this justifie the present Dispensation now in dispute I agree the King hath a great and most eminent part in the Legislature and in the passing of Laws it is he that quickens the Embrio and first gives it Life but under favour and with all due Reverence to the King I may affirm it That the King hath not the sole Legislature such as Almighty God hath over his Creatures but the whole Kingdom hath a share in that Power as I have fully proved as well as the King. I would cite one Case not so much to prove what I have said herein but rather to illustrate it It was a Case
in Hill. 11 Jac. B. R. Dominus Rex and Allen against Tooly in the Second Part of Bulstrode's Reports 186 to 191. in an Information brought upon the Statute of 5 Eliz. for using the Trade of an Upholsterer in which he had not served as an Apprentice Seven Years The Defendant pleaded That he was a Freeman of London and that by the Custom of London a Freeman might use any Trade and he alledged that the Custom was confirmed per Regem in Parliamento It was holden first that there can be no good Act of Parliament without the three Consents viz. Of the King Lords and Commons 2. That tho' divers Acts of Parliament do not specifie these Three Assents but only mention the King as Dominus Rex Statuit and as it is in the Prince's Case Dominus Rex de Communi Concilio Statuit and the like Yet when the Party will Plead he ought to Plead it according to Law and to set forth all the Assents that is of the King Lords and Commons and this was the Opinion of the whole Court. Now Pleading is an exact setting forth of the Truth We are not to raise Arguments from Forms of Speaking but rather from exact Pleading and the Resolutions of Judges And tho' Magna Charta in the stile seems to be spoken by K. H. 3. as by the word concessimus yet the Act of 15 E. 3. c. 1. recites that it was made a Law by the King Lords and Commons and that what is said to be granted was but their former Right Lambert's Archion 267 c. I hear that in speaking to the Case of Sir Edward Hales it was observed that by this Act of 25 Car. 2. there is no incapacity or disability at the first and upon the admission to the Office put upon any Person from taking of an Office but that he is well admitted to it and the Grant is good and that time is given to take the Tests and if by the times given he fail to take them then he is to be disabled and the Grants are to become void but not before Like a Condition subsequent that defeats the Estate which yet was well vested and then before the Grant is defeated and the Party become disabled the King's Dispensation steps in and prevents the Penalty and Disability And herein it was said it differs from the Case of Symony and buying of Offices where the Interest never vested but the Person was first disabled There is indeed a difference but none that is material for it is all one whether the Party be disabled to take or whether having well taken and been well admitted he is afterward disabled to hold and retain by not performing the Condition For when he is first admitted it is sub modo and under a Condition that if he fail to perform what the Law requires his Office shall be void Another Argument as I hear it reported was rais'd from the King 's being a Soveraign Prince and from thence it was inferred that he might dispense with Laws that are Poenal upon necessity whereof he is the sole Judge The ground of this Argument namely That the King is a Soveraign Prince if it serve for the Point in question it may also extend a great way further then to this question we have before us it is hard to limit the extent of it it seems to speak that we must obey without Reserve The word Soveraign is French and in Latin is Supremus id est qui in alios potestatem habet The Correlate whereof is Subditus or a Subject and is attributed frequently to some sorts of Subjects especially to the Heads or Superiours of Religious Orders But among us tho' now frequently used in our humble Addresses to the King or in our reverend mention of him yet we find it very rarely if ever used in our ancient Acts of Parliament or in our Law Books I find no mention of the very word among the many Attributes and Titles ascribed to Kings and Princes in Mr. Selden's Titles of Honour He hath that which is Synonimous as Supream Monarch as it signifies in opposition or in distinction to Princes that are subordinate and feudatory such as Tacitus speaks of that the Romans when their Government was Popular had instrumenta servitutis Reges But properly he is a King that is a Soveraign and hath no Superiour upon Earth According to Martial Rex est qui Regem Maxime non habeat And such we freely and cheerfully acknowledge the King to be and the best and most of his Subjects do swear that he is the only Supream Governour of this Realm and of all other his Dominions as well in all Spiritual or Ecclesiastical as Temporal Causes and that no Foreign Prince hath any Power within this Realm And I wish that all the rest of his Subjects would heartily take this Oath but this among others is that which Sir Hales's Dispensation extends to Yet how from hence it can be argued that the King can dispense with his Laws I do not see I mean Laws of the same nature as that we have now before us Therefore those that used this Argument surely meant the word of Soveraign in another sence viz. Absolute Solutus a legibus It they mean by Soveraign a Prince that is absolute and solutus a legibus and they must understand it so or else I do not see how it is pertinent to the present Argument this is of a mighty Consequence and ought to have been well considered before it had been used I find the word in this sence as I take it propounded in an addition or saving to the Petition of Right 3 Car. 1. viz. Not to infringe Soveraign Power But it was not liked and upon Reasons given at a Conserence those that did propound it were satisfied to lay it aside It may be read in the Memorials of the English Affairs fol. 10. If the word Soveraign be meant in this sence it is oppos'd by all our ancient Authors Judges and others by plain and express Language whose very Writings I have before cited and I will but only touch upon them again Fleta says Superiorem non habet Rex in Regno nisi Deum Legem per Legem factus est Rex This fully expounds the word Sovereign Both Fleta and Bract. and Sir Gilbert Thornton who was Chief Justice in Edw. the First 's time take notice of that Jus Caesareum or Lex Regia as it is called by the Civilians Nec obstat quod dicitur quod Principi placet Legis habet vigorem For it never was received in England but in a restrained sence And with this agrees the ancient Coronation Oath That the King shall hold the Laws and Customs of the Realm which the People have chosen But King H. 8. with his own hand corrected the old Oath to the effect following viz. That he shall hold the Laws and Customs of the Realm not prejudicial
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 Vote● 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
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
other Clauses The History of the Reformation fol. 262. mentions the Draught of a Bill intended for an Act of Parliament concerning giving the King Power of Erecting many new Bishopricks by his Letters Patents upon which the Author of that History says that the Preamble and material parts of it were drawn by King H. 8. himself and the first Draught of it under his hand is still extant and this passed the Lords and was sent down to the Commons and this is the very same Parliament of 31 H. 8. when this terrible Law passed Sir Edw. Cook in his first Inst. fol. 99. defines a Dispensation thus Dispensatio est mali prohibiti provida relaxatio utilitate seu necessitate pensata So that great utility or necessity are at least pretended for the granting of them now publick utility and necessity are the true grounds and foundation of all Laws which I have already shewn bind all Men alike without respect of person But a Dispensation does untie that Knot or slackens and lets loose that Obligation as to some particular persons and in some cases and for some limited time at the will and pleasure of the Prince that exercises that Power It looks like a Dispensation which Naaman the Syrian obtained from the Prophet Elisha In this thing that is in one particular the Lord pardon thy servant to bow down himself in the house of Rimmon when his Master the King did so He calls it a Pardon but it rather was an Indulgence or Dispensation that he crav'd A Pardon is properly of an Offence already committed See Dr. Field Dean of Gloucester in his Treatise of the Church printed at Oxford 1628. fol. 475. what a Dispensation is viz. It is in respect of certain persons times places and conditions of men and things So that a Dispensation permitting the Law to retain her wonted Authority only freeth some particular person or persons at some times in some places and in some condition of things from the necessity of doing or leaving undone that which unless it be in consideration of such particular circumstances ought to be done A Dispensation is of a thing future to allow of a thing to be done that it may not be accompted for a Crime and makes the thing prohibited lawful to be done And thereupon the Chief Justice Vaughan in his Argument of the Case of Thomas and Sorrel seems to take it in its right Notion when he says a Dispensation obtain'd does Jus dare Tho' he quarrels with Sir Cook 's Definition of it and says it is Ignotum per Ignotius But under his favour if he dislik'd that he should have given us a better Carpere vel noli nostra c. 1. I know very well that there are some of late that do ground this Power upon the Soveraignty of the Prince as if to be Soveraign and to be Absolute and Solutus à Legibus were one and the same thing As if it were inconsistent for a Soveraign Prince to be bound to Law. A Prince may be a Soveraign i. e. no subordinate or subject Prince Rex est qui Regem Maxime not habeat and yet not absolute and unlimitted in Power It is a frequent Argument and often disputed in our Books what Law the King is bound to and where he is not included in the Law. 2. It hath been argued that because the Laws are the King's Laws that therefore the King may dispence with the Laws this Argument is of a vast extent in the consequence as that of the Soveraignty is But it is not the King alone that makes the Laws and tho' they are indeed his Laws per Eminentiam and Denominatio sumitur à majore yet others have an hand in the making our Laws and a Propriety and Interest in them when once they are made We shall be best instructed in the Use and Nature of a Dispensation if we give some Instances of particular Cases wherein Dispensations have been allowed good by our Judges against the Penalties of some particular Acts of Parliament For example By a certain Statute Gascoign Wines and other Foreign Goods were prohibited to be imported into this Kingdom but in English Ships under the penalty of forfeiting the Goods and it was a profitable Law for the encrease of our Navy and employment of our own Mariners wherein the strength and safety of the Kingdom is concerned This importing of Foreign Goods in Foreign Ships was the Malum but it was only Malum prohibitum that is it was no offence till the Law made it so It was not Malum in se. It was therefore resolv'd by all the Judges 2 R. 3. fol. 12. that the King might dispence with this Law Cum Clausula non obstante and might give License to some particular persons to import such Foreign Goods in Foreign Ships That which before this Act of Parliament was a common Liberty and Trade by occasion of this Law applying the Prerogative of dispensing to it was now engross'd into some few hands from whence a Revenue it 's likely was rais'd so that it might be said Sin took occasion by the Law. By the Statute of 17 R. 2. c. 5. no Aulnager or Weigher of Wool shall have any Lease for Life or Years of his Office and if any Charter or Letters Patents be made to the contrary the Statute says they shall be null and void so that the Makers of this Law did not allow of any Dispensing Power but provided against it which shews what Opinion a Parliament hath of Dispensations Yet it was resolv'd Dyer 303. that the King by a Non obstante might dispence with this Law. The Judges indeed were of that Judgment but the Parliament who are the supreamest Judges plainly appear to be of a contrary judgment By a Statute made 1 H. 4. he that petitions to the King for Lands c. in his Petition is to mention the Value of the thing c. or else the King's Letters Patents c. shall be of no effect and yet Letters Patents to the contrary are good with a Non obstante By the Statute of 33 H. 8. c. 24. for avoiding Partiality and Favour in administring Justice no man is to exercise the Office of a Judge of Assize in the County where he was born or dwells under 100 l. penalty and divers former Acts had been made to the same purpose as 8 R. 2. c. 2 c. yet this we know is frequently dispenc'd with by a special Non obstante so that these Statutes are seldom or never observ'd and are of little use So likewise is the Statute of 7 Ed. 6. c. 5. for Retailing of Wine according to the Resolution in the Case of Thomas and Sorrel These may suffice to shew what is meant by the Term Dispensation and what the Nature of a Non obstante is It is an Indulging of a Priviledge to some particular Person or to a Corporation allowing him or them to do a thing that is
chap. 7. He shall think that he may change Times and Laws and they shall be given into his hands Bishop Jewel's Exposition upon the Epistle to the Thessalonians fol. 131. Antichrist says the Bishop is there called O. Anomos a Man without Order or Law that Man of Sin which is one of the peculiar Notes of Antichrist He shall seek to be free and go at liberty he shall be tied to no Law neither of God nor Man. Hence it is said of the Pope that he is solutus omni Lege humana In iis que vult est ei pro ratione voluntas nec est qui dicat illi Domine cur ita facis Ille potest supra jus dispensare de Injustitia facere justiciam Corrigendo jura mutando Pope Martin the Fifth dispens'd with a Man that married his own Sister In this last Instance the Pope did directly write after the Copy of an Heathen King. The story of Cambyses is the same Case in the very point with this last of Pope Martin Sir Walter Raleigh mentions it in his History of the World. Cambyses inquir'd of his Judges whether there were any Law among the Persians that did permit the Brother to marry his own Sister It was the intent of Cambyses to marry his own Sister too The Judges who as Sir Walter Raleigh observes had either Laws or Distinctions in store to satisfie Kings and Times they make a subtil answer that there was not any thing written allowing any such marriage But they notwithstanding found it in their Customs that it was always left to the Will of the Persian Kings to do what best pleas'd themselves This was a Non obstante with a witness This surely and the Popes practice together gave the occasion to Mr. Chillingworth's observation He that would usurp says he an absolute Lordship over any People need not put himself to the trouble of abrogating or disannulling the Laws made to maintain the Common Liberty for he may frustrate their intent and compass his design as well if he can get the power and authority to interpret them as he pleases and to have his Interpretations stand for Laws If he can Rule his People by his Laws and his Laws by his Lawyers therefore says he there is a necessity of a frequent resort to be had to the Law-makers not only to resolve Difficulties of Judgments but to keep the Power of Interpretation within its due bounds which is excellent advice I shall give but one Instance more and that is of the most impious sort of Dispensations that could possibly be devised I find it in the History of the Church of Scotland written by Archbishop Spotswood He tells us that in Anno 1580. Dispensations were sent from Rome into Scotland whereby the Catholicks were permitted to promise swear subscribe and do what else should be requir'd of them so as in mind they continued firm and did use their diligence in secret to advance the Roman Faith. Thus we see the monstrous Abuses brought in by Dispensations I have been something long upon this Subject but it was necessary to shew how that it is in the very nature of it to be stretching and growing and at last to be altogether unlimitted and will totally subvert the Law. Having thus laid my Foundation I shall now proceed from thence to raise my Arguments against Dispensations in general to prove that they are not Law but indeed contrary to Law and destructive of it I hold there is no just nor lawful Power of Dispensing with any Act of Parliament in any other hands than in those that are the Law-makers that is in the King and Parliament in conjunction I confine my self to Dispensations with Acts of Parliament 1. My first Argument shall be from the Nature of a Law whereof an Act of Parliament is the highest and of greatest Authority A Law hath its Name as I said before from its Nature Lex à Ligando it binds and compels to Obedience and it binds together and cements it knits and unites a multitude of People and makes them all as it were but one body Now a Dispensation is of a quite contrary nature and is destructive of Law As the Law does Ligare a Dispensation does Relaxare It is defin'd to be Relaxacio Juris it does unbind and set loose the Obligation of the Law and by consequence tends to the dissolving of the Body Politick Whatsoever is destructive of the Law cannot it self be Law for then the Law would be felo de se Lex quae Leges evertit ipsa Lex esse non potest a thing divided against it self and therefore will not stand Ubi non est pudor nec cura juris instabile Regnum est says Seneca Law is made by an universal consent and agreement of Prince and People I have already shewn how that the Common Law which is as ancient as the Nation it self is that Covenant which was agreed upon by Prince and People at the first framing and institution of the Government The Statute-Law hath its Force and Authority from the like consent and nothing is Law without that consent as appears by the Preamble of 25 H. 8. c. 21. concerning the very Point of Dispensations Sir John Fortescue says Rex leges sine subditorum assensu mutare non potest potestas regia lege cohibetur in his Book de Laudibus legum c. Now for the Prince alone without the like consent to depart from that Agreement and at his will and pleasure to break any Article of it is in effect to put the sole Power of the Law into the hands of one person which receiv'd its force and vigour from the consent of all which is irrational Bracton who as Sir Edward Coke says in his Preface to the Ninth Report was a famous Judge of the Common Pleas in the time of King Henry the Third is of this Judgment Leges says he cum fuerint approbatae consensu utentium Sacramento Regum confirmatae mutari non possunt nec destrui sine Communi consensu Concilio eor ' quor ' concilio consensu fuerint promulgatae 2. The Laws of England both Common and Statute Law have as I have already shewn a different Original from that of the Power of Dispensation as it is exercis'd now among us they have not the same Father The King who is Pater Patriae with the consent of the People is the Father of our Laws he is Juris Pater but he that is called the holy Father and from thence hath his name of Pope is the Father and first Inventer of Dispensations so that there is no kindred nor affinity between the Law and Dispensation 3. The Laws amongst us and this faculty of Dispensations as they have a different Original so they have no resemblance one of another facies non omnibus una est they have contrary qualities and dispositions The Law is equal and impartial and hath
evident that the King had no such Power or Prerogative of continuing Sheriffs in their Offices longer than a Year For under favour the Making of Sheriffs doth not nor never did belong to the King neither at the Common Law nor by any Act of Parliament so that all these Opinions and Resolutions are built upon a sandy Foundation and have but debile fundamentum and they take that for granted which is not a truth The Election of Sheriffs at the Common Law even from the very first Constitution of the Kingdom and by the Original Institution of the Government was in the Freeholders in the several Counties ever since there was any such Office as a Sheriff and ever since the Kingdom hath been divided into Shires that is in the time of the Saxons from whom we derive most of our Common Law and long after their time in the time of the Normans till being neglected by the Freeholders it came at length by an Act of Parliament made within the legal time of Memory to be taken from the Freeholders and the Power of Naming and Chusing Sheriffs every Year lodged in the hands of certain great Officers of State and so it continues to this day but neither is nor never was in the King. Mr. Lambard in his Book de Priscis Anglorum Legibus in his Lemma de Heretochiis fol. 147. says that those Heretochii were Ductores exercitus Here signifying an Army in the Saxon Tongue The same as in the Dialect of this present Age may be called Lord-Lieutenants or Deputy-Lieutenants The Law of King Edward which I take to be the Confessor speaks of these Heretochii in these words Isti vero viri Eligebantur per Commune Concilium pro Communi utilitate regni per provincias Patrias Universas per singulos Comitatus in pleno Folkmote sicut Vice-Comites Provinciarum Comitatuum Eligi debent This Law mentions this Election as an Use and Custom If the King did not make the Sheriff he could not continue him Sheriff if he could not make him for a Year he could not grant him the Office for longer than a Year the Sheriff had his Authority and Office from the Election not by Commission or Patent and that but for a Year Sir Edward Coke in his Second Institutes in his Exposition of the Statute of Westminster 1. Cap. 10. concerning the Election of the Coroners by the Freeholders which ever was so and so still continues says there is the same reason for Election of Sheriffs and so says he it anciently was by Writ directed to the Coroners In like manner were the Conservators of the Peace chosen in whose place the Justices of the Peace now succeed and so the Verderors of the Forrest are to this day These were great and high Liberties and did belong to the Freeholders from all antiquity and are strong Arguments to confute those late Authors that will by no means allow of a limitted Government but leave us under an Absolute and Arbitrary Power and who call our Laws and Liberties but the Concessions and Condescensions from the Regal and Absolute Power Sir Edward Coke discourses largely of these Elections in his Exposition of the Statute of Articuli super Chartas in his Second Institutes or Magna Charta fol. 558. By this Statute it is said the King hath granted to his People that they have the Election of their Sheriff in every County where the Sheriff is not of Fee if they will. Sir Edward Coke says by this Act that ancient Right the People that is the Freeholders had was restor'd to them and the words if they will import that they formerly had it but neglected it By a Statute made in the next King's Reign viz. 9 E. 2. styled The Statute of Sheriffs upon pretence that insufficient persons were commonly chosen for Sheriffs by that Act it is ordained that from thenceforth the Sheriffs shall be assigned by the Chancellor Treasurer Barons of the Exchequar and by the Justices And by the Statute of 14 E. 3. c. 7. some change is made of the persons that are to have the Election and the Day and Place of such Assigning of Sheriffs is prefix'd viz. yearly in the morrow of All-Souls and in the Exchequer By the Statute of 12 R. 2. c. 2. the Assigning of the Sheriff is put into the hands of more great Officers who are to be sworn to execute this Trust faithfully but it is not vested in the King all this while nor never was It is true that out of Reverence to the King these great Officers who had the Assigning of Sheriffs did afterwards use to name three persons out of which number they left it to the King to chuse one for every Shire But this was more out of deference to the King than out of any strict Obligation so to do and the Election made by the King was in Law to be accounted an Assignment by these great Officers Nor could the King chuse any other for Sheriff than one of those three so Assigned by those great Officers tho' it is sometimes otherwise practis'd And this hath been a Resolution of all the Judges of England and is mentioned in Sir Coke's Second Institutes fol. 559. it was in the 34th Year of Henry the Sixth and it is in these words viz. That the King did an Error when he made another person Sheriff of Lincolnshire then was chosen and presented to him by those great Officers after the effect of the Statute So that the right of Electing Sheriffs by those great Officers we see continued so lately as the latter end of King Henry the Sixth and I know of no Law since that hath alter'd it therefore we may conclude it is no Prerogative in the King. And we may further observe what plain Language all the Judges used in those days as to tell the King and the Lords of the Council that the King had erred in what he had done I observe this the rather that it may be some excuse to me for the plain Language I am forced to use in the Arguing upon this Subject The Lawyers are not always Courtiers nor will the Subject-matter bear Complements and Courtship Ornari res ipsa negat contenta doceri I cannot reconcile this Resolution of the twelve Judges given in the time of King Henry ths Sixth with that Opinion that is deliver'd in the Lord Dyer's Reports fol. 225. b. and it is but an Opinion 5 6 of Queen Elizabeth In the time of the Plague the Sheriffs were named and made without assembling the Judges ad Crastinum Animarum at the Exchequer according to the common usage but for the most part none was made but one of the two that remain'd in the Bill the last Year Tho' it was held says the Report that the Queen by her Prerogative might make a Sheriff without such Election by a Non Obstante aliquo Statuto in contrarium which crosses the Resolution I