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
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
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
necessitate pensata Upon the word Concessa I would gladly be satisfy'd when or by whom that Power was ever granted to the King where shall we find that Grant It is clear that whoever hath the entire Power of making a Law may justly dispense with that Law. And therefore Almighty God being the sole and supream Law-giver might dispense even with the Moral Law as he did with the sixth Commandment when he commanded Abraham to sacrifice his Son Isaac and with the eighth Commandment when he commanded the Israelites to borrow the Jewels of the Aegyptians and to go away without restoring of them But it stands not with reason that he who hath but a share with others in the making of a Law as the King hath no more should have the power by himself alone to dispense with the Law unless that power were expresly intrusted with him by the rest of the Law-makers as sometimes hath been done Sir Edward Coke in his seventh Report in the Case of Paenal Statates fol. 36. towards the lower end does affirm that this Dispensing Power is committed to the King By All his Subiects So that it is not claimed Jure Divino but by Grant from the People But where to find any such Grant we know not I have as I conceive made it appear in my larger Argument p. 14. that the first Invention of Dispensations with Laws began by the Pope about the time of Innocent the Third and by our King Henry the Third in imitation and by encouragement from the Pope so that it was not by the Grant of the People but ever exclaimed against by all good men and generally by all the people and ever fenced against by a multitude of Acts of Parliament It is true the Dispensing with Laws hath ever since been practised and they began at first here in England to be used only in Cases where the King alone was concern'd in Statutes made for his own profit wherein he might have done what he pleas'd But it is but of latter times that they have been stretched to Cases that concern the whole Realm See my Argument fol. 13. Hence it evidently appears it cannot be a legal Prerogative in the King for that must ever be by Prescription and restrain'd to those Cases that have been used time immemorial and must not be extended to new Cases Now there hath been no such usage as will warrant the Dispensing with such an Act of Parliament as is now before us that of 25 Car. 2. c. 2. The Chief Justice Herbert from the Definition before recited and those two Authorities of Sir Edward Coke in his Case of Monopolies and that other of Penal Statutes frames an Argument to prove that the Dispensation granted to Sir Edward Hales was good in Law. Because a Dispensation is properly and only in case of a Malum Prohibitum he thence insers that the King can dispense in all Cases of Mala Prohibita Which is a wrong Inference and that which Logicians call Fallacia à dicto secundum quid ad dictum simpliciter Because he can dispense with some that therefore he can dispense with all is no good Consequence It appears by the late Chief Justice Vaughan's Reports in the Case of Thomas and Sorrel so often cited by the Chief Justice Vaughan's Rep. fol. 333. the fourth Paragraph that his Opinion is That the King cannot dispense with every Malum Prohibitum and he gives many Instances of such Mala Prohibita that are not dispensable fol. 342 and 334. parag 4. Therefore the Lord Chief Justice Herbert should as I conceive regularly first have given us the distinction of Mala Prohibita into such as are dispensable and such as are not dispensable and then have shewn that the Dispensation granted to Sir Edward Hales fell under the first part but that learned Reporter the chief Justice Vaughan so often cited by our now Lord Chief Justice in the aforesaid Case of Thomas and Sorrell fol. 332. the last Paragraph save one quarrels with the very distinction of Malum Prohibitum and Malum in se and says it is confounding From whence I would observe and from the whole Report in Thomas and and Sorrell's Case that the Notion of Dispensation is as yet but crude and undigested and not fully shaped and formed by the Judges The Pope was the Inventer of it Our Kings have borrowed it from them And the Judges from time to time have nursed and dressed it up and given it countenance And it is still upon the growth and encroaching till it hath almost subverted all Law and made the Regal Power Absolute if not Dissolute I must agree that our Books of late have run much upon a Distinction viz. Where the breach of a Penal Statute is to the particular damage of any person for which such person may have his Action against the Breaker of that Law there tho' it be but Malum Prohibitum yet the King cannot dispense with that Penal Law according to the Rule in Bracton Rex non potest gratiam facere cum injuriâ damno alterius As for instance There are several Statutes that prohibit one man from maintaining another's Suit though in a just Cause See Poulton de pace Regis Regni in his Chapt. of Maintenance fol. 55. Now it is held that the King cannot dispense with those Laws because it would be to the prejudice and damage of that particular person against whom the Suit is so maintain'd by another for there can be no maintenance but it is to the wrong of a particular person So of carrying a Distress out of the Hundred But there are many other Penal Laws where by the transgressing of them no Subject can have any particular damage and therefore no particular Action for the breach of them As upon the Statute that prohibits the Transportation of Wool under a Penalty By the breach of this Law that is by the Exportation of Wool no one particular man hath any damage more than every other man hath but it is only against the Publick Good. And the breach of such a Penal Law is punishable only at the King's Suit by Indictment or Presentment And the like where such a Penal Statute gives an Action Popular to him that will sue for the Penalty who hath no right to it more than any other till his Suit be commenced In these Cases it is commonly held that the King may dispense with such Penal Statutes as to some particular persons and for some limitted time whereof they make the King the sole Judge because as the reason is given in the Chief Justice Vaughan's Reports fol. 344. parag 2. Such offence wrongs none but the King. This is now the common receiv'd Opinion and Distinction And the breach of such kind of Penal Statutes are said to be only the King's damage in his publick capacity as Supream Governour and wronging none but himself Lord Vaugh. Rep. 342. parag 3. But if we will narrowly search into this
Distinction and weigh the Reasons so given we shall find it is without any just ground The damage done to the particular person in the Cases past in the first part of this distinction are meerly his own proper and peculiar damage and he is intituled to his particular Action for it in his own proper personal Right and therefore if he discharge and dispense with them it is no wrong to any other man. He may do what he will with his own But the Cases in the second part of this Distinction are where the King hath a right to the Suit and the offence and damage are said to be to him only But are they so as the former in his own personal right as his Lands and other Revenues are or are they to him but as a Trustee for the Publick for which reason he is called Creditor Poenae and may he therefore upon the like reason dispense with them or dispose of them as a Subject may do with his own particular Interests Again Shall a publick Damage and Injury to the whole Nation be more dispensable by the King than the loss of one private man fuit haec sapientia quondam Publica privatis secernere And therefore in my apprehension the King cannot in such Cases of Dispensations be truly said to wrong none but himself and it is not agreeable to the Definition before given Utilitate Compensata for the King wrongs the whole Realm by it Where if he grants a Dispensation with a Penal Law of the first sort of this distinction he only wrongs some particular persons The Cases and Authorities for Dispensations in our Books that were granted in ancient times will generally be found to be only where the Penal Statutes were made for the King 's own proper interest and benefit As his dispensing with the Statute of Mortmain For in such Cases it was to the King 's own loss only in Cases where the King might by Law have given away his Lands or Services So the King may in his Patent of Grant of Lands dispense with the Statutes that require there shall be mention of the true Values of them And by a Non-obstante to those Statutes which is now generally used the King does in effect declare that it is his pleasure to grant those Lands whatever the Value of them be more or less and the Statute does by express words save a liberty to the King in that Case The King is not a Trustee for others in such Cases nor can these Dispensations be said to be directly to the damage of the Publick And such Penal Laws as meerly concern the King 's own Revenue or Profit may justly be thought to be intended to be made only to put the King's matters into an ordinary method and course and so save the King a labour as the Lord Hobart says and so prevent the King 's being surpriz'd or mis-inform'd when Patents are gained from him and not design'd to tye the King's hands or to restrain his power as out of all doubt was done and intended by the Law-makers in our Act of 25 Car. 2. But in all the late Cases and Authorities which we meet with in our Books concerning Non-obstante's and Dispensations as in the time of King Henry the Seventh and so downward to this day we shall find them practising upon such Penal Statutes as meerly concern the Publick Good and Benefit and the Laws of such a nature by the breach of which the whole Nation suffers While some particular persons it may be by giving a large Fine or a yearly Sum obtain the favour to be dispens'd with and exempt from a Penal Law while all others continue to be bound by it As for Example Where a Statute forbids the Exportation of Wool or of Cloth undyed or undress'd under a Penalty such a Law is greatly for the Publick Good and it takes care that our own People shall have Employment and Maintenance Yet this is such a Law as according to the receiv'd Distinction the King may dispense with there being no particular damage to one man more than to another by breach of such a Law although it be a mighty damage to the whole Nation For by such a Dispensation the person so dispens'd with to Export such White Cloth undyed will have the sole Trade which before the making of that Penal Statute was equal and common to all I wish the House of Commons would enquire what vast Riches have been heretofore gotten by such as have obtain'd the Dispensations with this Penal Statute besides the Sums they paid to the Crown for them These are meer Monopolies In such a Case it may rightly be applied That Sin taketh occasion by the Law. It had been better for the Nation that such Laws were never made being no better observ'd for here again the Dispensation is neither Utilitate nor Necessitate pensata Look into the Case of Thomas and Sorrell and you will find few or no Cases of Dispensations cited out of our Books but of the time of King Henry the Seventh and much more of very late times so that the ill practice is still improving and stretching The Lord Chief Justice Herbert in the next place pag. 9. proceeds to mention the great Case of 2 Hen. 7. a Resolution of all the Judges in the Exchequer-Chamber upon the King 's dispensing with the Statute of 23 H. 6. cap. 8. That no man should be a Sheriff above one year This is the great Leading Case and Authority upon which the main stress is laid to justifie the Judgment given in Sir Edward Hales his Case I would avoid repeating what I have already so largely said to this Authority to which I must refer my Reader by which I hope it is most evidently made out that the King neither hath nor never had any just Right or Power to elect Sheriffs But the right of Electing was anciently and originally belonging to the Freeholders of the several Counties and since it was unjustly taken from them as they have ever been on the losing hand it hath been lodged in the great Officers of the Realm as the Lord Chancellor Lord Treasurer Lord Privy-Seal and the Judges c. as appears by the several Statutes And they are to make such Choice every year in the Exchequer on a day appointed by the Statute for that purpose So that the Sheriffs are by those Statutes to continue in their Offices for one year only And the King cannot hinder such Election Only by his Patent or Commission to the Sheriff hath he used to signifie to the Sheriff himself that is so chosen and to publish to all others who the person is that is so chosen This is all the use of the Patent but it is the proper Election of those great Officers that truly vests them in their Office And it does as clearly appear that when former Kings have dispens'd with a Sheriffs continuing in his Office for longer than one year contrary to the
imports the King's Declaration and Resolution by advice of his great Council to employ none in Offices and Places of Trust but such as are most capable and fit and will most faithfully answer the great Ends for which they are so intrusted that is the preservation of the Protestant Religion which is the true English Interest And this agrees with the Rules of the Common Law That if an Office be granted to one that is Inidoneus the Grant is void though granted by the King himself Of this I have treated more largely in my Argument fol. 37. The Lord Chief Justice Herbert pag. 16. asks the Question Whether so many solemn Resolutions of all the Judges of England in the Exchequer-Chamber are not to be rely'd upon for Law And I answer That if they were ten times as many more yet they are not to be rely'd on against many express positive Acts of Parliament directly to the contrary For what words could the Parliament use more emphatical and express and more to the purpose than by saying That a Non-obstante or a Dispensation or a Grant of such a thing prohibited by that Law shall be absolutely void and ipso facto adjudged void and the person made uncapable to take And is not a Judgment in Parliament and by Act of Parliament of the highest Authority But says the Chief Justice fol. 16. the constant practice hath been to dispense with the Statute of Sheriffs I answer It hath also been a very frequent practice too for the King to make such persons Sheriffs as were none of the number nominated or chosen as aforesaid by the Chancellor Treasurer Judges and other great Officers and it passes for currant that he may so do though it be a vulgar Errour For it hath been resolv'd by all the twelve Judges to be an Errour in the King. See Sir Coke's 2 Instit. or Magna Charta fol. 559. and yet it is practis'd to this very day The Chief Justice pag. 18. seems to excuse Popish Recusants for not qualifying themselves for Offices by taking the Oaths and the Test c. for that no man says he hath it in his power to change his opinion in Religion as he pleaseth and therefore it is not their fault It is an Errour of the mind c. Answ. Here is no occasion taken to find fault with them for their Opinion let them keep their Religion still if they like it so well who hinders them This Act of 25 Car. 2. imposes no Penalty upon them for their Opinion But is there any necessity of their being in Offices Must they needs be Guardians of the Protestant Religion The Penalty upon them by this Act is not for their Opinion but for their presuming to undertake Offices and Trusts for which they are by King and Parliament adjudg'd and declar'd unfit Page 20 21. The Chief Justice Vaughan is brought in arguing for the Kings Power of Dispensing with Nominal Nusances as he is pleas'd to call and distinguish Nusances The word Nominal as there understood imports that though a Parliament declares any thing to be a Nusance as sometimes they do in Acts of Parliament to render them indispensable which yet in its proper nature would not otherwise be so conceiv'd to be that such a Nominal Nusance as he holds may however be dispens'd with by the King though regularly by Law the King may not dispense with any Nusance Answ. Shall any single or particular person though a Chief Justice presume to call that a meer Nominal Nusance which a Parliament by a solemn Act and Law have adjudg'd and declar'd to be a real Nusance Are we not all concluded by what a Law says This Arrogance is the Mischief now complain'd of The Chief Justice Herbert pag. 22. at the lower end says That from the abuse of a thing an Argument cannot be drawn against the thing it self I agree this is regularly true yet we have an Instance to the contrary in the Scripture in that point of the Brazen Serpent But in our Case the abuse doth arise from the very nature of the thing it self from the constitution of it For the King practises no more in dispensing than what these Resolutions of the Judges allow him to do by this pretended Prerogative The Errour is in the Foundation They have made his Power to be unlimitted either as to number of persons or as to the time how long the Dispensation shall continue Sir Edward Coke says and so the other Books That the King is the sole Judge of these Nec Metas Rerum nec Tempora Ponunt The Chief Justice Herbert fol. 24. cites two clear Concessions as he is pleas'd to call them of all the Commons of England in Parliament which he esteems much greater Authorities than the several Resolutions of all the twelve Judges But how far these are from Concessions will easily appear to an indifferent Reader They are no more than prudent and patient avoiding of Disputes with the several Kings And there are multitudes of the like in the old Parliament-Rolls It is but an humble clearing of themselves from any purpose in general to abridge the King of any of his Prerogatives which have always been touchy and tender things but it is no clear nor direct allowance of that dispensing there mention'd to be any such Prerogative in him However I am glad to see an House of Commons to be in so great request with the Judges It will be so at some times more than at others Yet I do not remember that in any Argument I have hitherto met with a Voteâ— or Order or Opinion of the House of Commons hath been cited for an Authority in Law before now Will the House of Peers allow of this Authority for Law It will be said That this is but the acknowledgment of Parties concern'd in Interest which is allowed for a good Testimony and strongest against themselves Answ. I do not like to have the King and his People to have divided Interests Prerogative and the Peoples Liberties should not be look'd upon as Opposites The Prerogative is given by Law to the King the better to enable him to protect and preserve the Subjects Rights Therefore it truly concerns the People to maintain Prerogative I could cite several Parliament-Records wherein the poor House of Commons have been forced to submit themselves and humbly beg pardon of the King for doing no more than their Duty meerly to avert his displeasure See the Case of Sir Thomas Haxey whom the King adjudg'd a Traytor for exhibiting a Bill to the Commons for the avoiding of the outrageous Expences of the King's House 20 R. 2. num 14 15 16 17 and 23. and the Commons were driven to discover his Name to the King and the whole House in a mournful manner craving pardon for their entertaining of that Bill No doubt as good an Authority against the Commons for so sawcily medling in a matter so sacred and so far above them Yet afterwards
prohibited by some Act of Parliament under a Penalty without incurring the Penalty The doing whereof was lawful to all till that particular Law did make it an Offence to do it The Chief Justice Vaughan who argued in his turn the last but one of all the twelve Judges in the late great Case of Thomas and Sorrel and there was hardly a Case in all the Books under that Title but what had been cited by one or other and all the Rules and Distinctions were there remembred yet that Chief Justice after all says that not one steady Rule had been given either by the Books or any of the Judges that argued before him And for that trite Distinction so generally used of Malum in se malum prohibitum the Chief Justice Vaughan professes that Rule hath more confounded mens judgments than rectified them yet he himself gives us no other Which shews that the Notion of Dispensation is not very ancient with us in our Law and is but rare and as yet unform'd not licked into a perfect shape I mean still Dispensations with some Acts of Parliament such as this of 25 Car. 2. not the granting Non obstante's as to mis-recitals or non-recitals in Grants of Lands c. It having yet no steady Rule and yet being frequently used it is the more fit for the Supreme Court to give some certain Rule in it that may regulate and guide the Judgment of Inferiour Courts and this is the proper work of the King and Parliament And because we find it a growing Mischief and getting ground upon the Law and every day brings forth new Precedents it is high time that a stop were put to it So much for the Nature of a Dispensation I shall in the next place endeavour to trace out the Original of this Invention of a Dispensation when it first began and who was the Author of it and shew that it was look'd upon as a Monster and exclaim'd against by Kings and States and all Good Men and yet the Precedent was followed and the Abuse of it spread and increas'd and hath been ever since growing I am not the first that have undertaken to make this discovery In the Argument of the Case of Comendam in Sir Davy's Reports fol. 69. b. It is said that the Non obstante was invented and first used in the Court of Rome and they bring an Author that denounc'd a Woe against that Court for introducing so ill a Precedent mischievous to all Common-wealths in Christendom for the Temporal Princes perceiving the Pope to dispence with his Canons in imitation of him have used it as a Prerogative to dispence with their Penal Laws and Statutes where before they caused their Laws to be religiously observ'd as the Laws of the Medes and Persians which might not be changed Thus says that Report Here we see from whence 't was borrow'd The late Chief Justice Vaughan in his Report of the Case of Thomas and Sorrel fol. 348. does acknowledge that the use of Dispensations was principally derived to us from the Pope Now to make some conjecture about what time it began that we may discover how old it is and which of the Popes was the Author of it The History of the Reformation fol. 101. says this Power of Dispensing with the Laws of the Church by the Popes was brought in in the latter Ages Popes Zozimus Damasus Leo and Hilarius do freely acknowledge they could not change the Decrees of the Church It is suppos'd it was first invented by Pope Innocent the Third about the beginning of the thirteenth Century and about the times of our King John and his Son King Henry the Third and it is observable that in this Pope's time the Doctrine of Transubstantiation was first decreed to be an Article of the Faith and this at the Council of Lateran that Doctrine which by this very Act of ours is to be declar'd against and is now dispens'd with This is that Pope that excommunicated Otho the Emperour and our King John and forced him at last to resign his Crown and to take it back from him again to hold it of him at the Rent of 1000 Marks What good issue can we expect from such a Father After the time of this Pope Dispensations began more frequently to be practised by the Successors of Innocent the Third by Honorius and by Pope Gregory the Ninth and Innocent the Fourth but they were exclaimed against by all Kings and Princes and by all the good and learned Writers of that Age which shews that they had not been ancient and that the Kings and Princes themselves had not then followed the ill example in Dispensing with their Laws for had they done so they could not with any confidence have condemn'd the Pope for using them And we may see how odious these Dispensations were by the vile Epithites the Learned and Good Men of that Age gave them We have a full Relation of it from one of their own Order a Monk but an Historian of very good esteem that is Matth. Paris he tells us that our King Henry the Third sent Earl Bigod and other Nobles to the Council at Lyons and amongst others one William de Powic one of his Procurators and a Clergy-man who made an Elegant Oration ripping up the horrible Oppressions used by the Pope upon England and then deliver'd in an Epistle directed to Pope Innocent the Fourth by the Magnates Universitas Regni Angliae to the same effect After this had been openly read in the Council and a mighty silence followed and the Pope gave no answer to it The King's Proctors Prioribus addebant querimoniam gravem seriam videlicet de violenta Oppressione intolerabili gravamine impudenti Exactione injuria quae per hanc Invisam Adjectionem papalibus Literis frequenter insertam Non obstante c. exercetur per quam Jus pro nihilo habetur Authentica scripta Enervantur says that Historian The same Author says that the Reformation of many things was obtained from Pope Innocent Sed omnia haec alia per hoc Repagulum Non obstante infirmantur ubi vero fides ubi jura quae scriptis solebant solidari Our King Henry the Third conven'd his Parliament and spread before them the Articles of the Grievances which he had so sent to Rome and amongst others one in these words viz. Gravatur Regnum Angliae ex multiplici adventu illius infamis nuncii Non obstante per quem Juramenti religio consuetudines Antiquae scripturarum vigor concessionum autoritas Jura privilegia debilitantur evanescunt We find it frequently termed Detestabilis Adieclio Non obstante and we find the form of his Dispensation running in these words viz. Indulgentia quâcunque vel privilegio quolibet aut Constitutione in Generali Concilio edita Non obstante The Pope afterwards required a third part of the Goods of all beneficed Clerks and
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
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
several Statutes so forbidding it the King hath so done it by virtue not of his Prerogative but by a special Act of Parliament enabling him to do it for some extraordinary occasions and for some limitted time only See for this the Statute of 9 Hen. 5. cap. 5. in the Statutes at large and my larger Argument fol. 34. The truth is the Power of Dispensing is originally in the Legislators He only can dispense with a Law that can make a Law. The Power is equal and the Legislators can confer the same Power upon the King or any others for some convenient time c. as appears by the last Instance of the Sheriff and divers other like Cases mentioned in my foregoing Argument where I have also observ'd many other things upon that Resolution of 2 H. 7. concerning Sheriffs The Chief Justice Herbert supposes the Mischiefs recited in the Preamble of that Statute of 23 Hen. 6. cap. 8. concerning Sheriffs continuing in their Offices longer than one year to be equal if not greater as he judges than the Mischiefs recited in the Statute of 25 Car. 2. by Papists being in Offices And from thence I presume would infer that the Case of Sir Edward Hales is not so fatal in the consequence as the Case of a Sheriff I may appeal to any ordinary Judgment and to the sad Experience and Tryal we have so lately had and to the desperate Danger we were so lately in from which Almighty God by no less than a Miracle hath in great mercy deliver'd the Nation whether the Mischiefs that could any way possibly arise from the dispensing with the former I mean thâ— Statute concerning Sheriffs be comparable to the infinite Mischiefs arising from putting Papists into Office and intrusting them with our Religion and all our Civil Rights The Chief Justice upon those words of the Statute concerning Sheriffs viz. That no Non-obstante shall make them good infers that those words do shew that the Parliament which made that Act concerning Sheriffs was of opinion that had it not been for that Clause the King could otherwise have dispens'd with that Act by a Non-obstante Answ. This to me seems a strained Inference and that it is very far from shewing any such Opinion in that Parliament It rather signifies that had not the Parliament inserted that Clause into the Act the King might have done again as he had frequently practis'd before viz. granted Dispensations upon that Statute which ill practice they endeavour'd to prevent for the future not approving the practice nor owning the power of doing it Ex malis moribus bonae oriuntur Leges A good Law rather condemns a contrary practice before used I heartily desire my Reader as I have done in my foregoing larger Argument carefully to observe and examine of what sort and nature those several Cases are which the Resolution of the Case of 2 Hen. 7. urges to warrant that Resolution As those Cases concerning the true Value of Lands which the King grants and that concerning the shipping of Wool to a certain Staple c. and let the Reader judge how vast a difference there is between those Statutes in the nature and import and reason of them and this weighty important Statute now before us and how little that Resolution of 2 H. 7. can be warranted by the Cases there cited being of so inferiour and minute a Consideration in comparison of the principal Case It is true Sir Edward Coke if the twelfth Report which goes by his name be truly his hath since that Resolution given in 2 Hen. 7. found out new and different Reasons and Arguments which are not urged and therefore I presume never so much as thought on at that time by the twelve Judges who gave the Resolution in that Case of 2 Hen. 7. Thus says Sir E. Saundys in his Relation of the Religion used in the West parts of the World Those of the Roman Religion made their Greatness Wealth and Honour to be the very Rule by which to square out the Canons of their Faith and then did set Clerks on work to devise Arguments to maintain them Sir Edward Coke seems to justifie that Resolution concerning Sheriffs from this ground viz. That the King hath a Soveraign Power to command any of his Subjects to serve him for the Publick Weal And this is says he solely and inseparably annexed to his Person and that this Royal Power cannot be restrain'd by any Act of Parliament 12 Rep. fol. 18. That it is not solely annex'd to the King's person appears by the several Acts of Parliament which I have cited to this purpose in my larger Argument fol. 34. where the Power of Dispensing with some particular Acts was given to the King by the Parliament and by him accepted for some short time And the whole Parliament have in divers Cases themselves exercis'd this very Power Judge of the weight of the Reasons said to be given there by Sir Edward Coke by that one Instance of his in the Case he puts of Purveyance 12 Rep. fol. 19. which he says cannot be taken from the King no not by Act of Parliament Yet we have lived to see it lately taken away by Act of Parliament which in the Judgment of a Parliament which is of the highest Authority in Law may therefore be taken from the King. And is the King in truth restrain'd from commanding his Subjects to serve him for the Publick Weal either by those Statutes that disable Sheriffs to continue in their Offices longer than one year or by our Statute of 25 Car. 2. that disables Popish Recusants to bear publick Offices Because some very unfit uncapable and dangerous persons are disabled to bear Offices of Trust and Power and this by the King 's own consent to the Act and by the advice of the great Council the Parliament and indeed of the whole Realm Does the King by this which the Judges mis-call a Restraint want for choice of fit persons to serve in Offices Doth the Publick Weal suffer by this Restraint is it not rather preserv'd by it Hath not the King Protestant Subjects enow to bear Offices And are Popish Recusants who account Protestants Hereticks and to be rooted out and destroy'd and with whom they hold no Faith is to be kept and against whom they have been continually plotting Mischief are these the fittest to be intrusted with the Defence of the Protestant Religion and with our Lives and Estates which are all concern'd more or less in every Publick Office and Trust And are those persons the Papists that have a dependance upon the See of Rome and a Forreign Power fit to be intrusted with the power of the Nation with the Militia and the Sea-Ports Is not this to commit the Lamb to the custody of the Wolf This Act that disables Papists to bear Offices cannot be justly said to be a Restraint upon the King that expression sounds ill and takes the matter by the wrong handle It rather
1 Hen. 4. num 91. that Judgment against Sir Thomas Haxey was revers'd As for the distinction pag. 30. of a Disability actually incuri'd before the medling in an Office and where the Disability is prevented by the coming of a Dispensation I answer That its being so prevented is but Peticio Principii and a begging of the Question And to this Distinction I have I think fully spoken in the foregoing Argument fol. 40. The late Parliament in making this Act of 25 Car. 2. had no doubt a prospect that probably the Crown would discend upon a Popish Successor and they levelled this Act against the Dangers that might then befal our Religion and Liberties and they thought it a good Security But it is all vanished and come to nothing by occasion of this Judgment in the Case of Sir Edward Hales And that must be justified by a Fiat Justitia As to the Objection that the Chief Justice fancies might have been made against him or advice given him that he should rather have parted with his place than to have given a Judgment so prejudicial to the Religion he professes pag. 33. This I say that for my part I should never have advis'd him to have parted with his Place much less to have given a Judgment against his own Opinion But let his Opinion be what it was yet seeing the clear intention of the Makers of the Law contrary to that his Opinion and knowing the desperate effects and consequences that would follow upon dispensing with that Act for we were upon the brink of destruction by it and taking notice as this Chief Justice and the rest of the Judges needs must that the King had first endeavour'd to have gain'd a Dispensing Power in thismatter from both Houses which was the fair and legal course and that yet that very Parliament which out of too great a compliance with those times had over-look'd so many Grievances and conniv'd at the King 's taking and collecting of the Customs though in truth the Collectors and all that had any hand in the receiving of them incurr'd a Praemunire by it not to mention the ill Artifice used in gaining the Excise yet that Parliament of the King 's boggled at the Dispensing with the Act of 25 Car 2. knowing the mighty Importance of it And though they could not but take notice that so many Judges at once had been remov'd because they could not swallow this Bitter Pill and others brought into their places as might be justly suspected to serve a Turn and the King 's Learned Councel could not at first find out this Prerogative to do his work with till so many ways had been attempted and all proved ineffectual sure in such circumstances it had been Prudence nay the Duty of the Judges to have referr'd the determination of it to a Parliament and the rather because it was to expound a Law newly made and the consequences so dreadful and the intent of the Law-makers so evident And this hath been frequently practis'd by Judges in Cases of far less difficulty and concernment This I have also enlarged upon in my Argument page 26. Object But it might have been a long time before any Parliament had been called Answ. We ought to have Parliaments once a year and oftner if need be and eadem praesumitur esse mens Regis quae Legis and we then stood in great need of a Parliament even for the sake of this very Case And these hasty Judgments are one ill Cause why Parliaments meet no oftner the Work of Parliaments is taking out of their hands by the Judges And it is the Interest of some great Officers that Parliaments should not be called or else be hastily prorogu'd or adjourn'd As to the point of the feigned Action which the Lord Chief Justice seems to justifie I conceive he mistakes the force of the Objection Feigned Actions may be useful but this Action against Sir Edward Hales is suspected not only to have been feigned and brought by Covin between him and his Servant and Friend but it was feignedly and faintly prosecuted and not heartily and stoutly defended Like the practice of common Fencers who play for a Prize they seem to be in good earnest and look very fierce but agree before-hand not to hurt one another Qui cum ita pugnabat tanquam se vincere Nollet Aegre est devictus proditione suâ This solemn Resolution was given upon a few short Arguments at the Bar and without any at the Bench and upon other Reasons as I have heard which were then made use of are now given by the Chief Justice but the Times will not now bear them After all I intend not by this to do the Office of an Accuser nor to charge it as a Crime But as I think my self bound in Duty on the behalf of the whole Nation of my self though a small part and member of it and of my Friends I humbly propose That the Judgment given in Sir Edward Hales his Case may after a due Examination if there be found cause be legally Revers'd by the House of Lords and that Reversal approv'd of and confirm'd by a special Act of Parliament FINIS Declaration Plea. Order The Act of 25 Car. 2. Of the Law in general Of a Dispensation Of this particular Act of 25 Car. 2. Dangers from Papists to the Protestants The Test. Judgment given by Parliament The Pishop of Winchester's Collections Of Law in general Laws made by consent of the People * Grotius de Jure Bell. pacis f. 151. †King James the Firstin his Speech to the Lords and Commons at White-hall 1609. f. 531. 25 H. 8. c. 21. ‖ Leges nulla alia causa nos tenent quam quod judicio populi receptae sunt Ulpian de Lege 32. Tum Demum Leges humanae habent vim suam cum fuerint non modo institutae sed etiam firmatae approbatione Communitatis Sir Wal. Ral. in his Hist. of the World 245. * Fol. 531. Mr. Hooker Fol. 17. Non eget Mauri jaculis nec Arcu The original of Dispensation Instances of Dispensation The Definition of a Dispensation The Original of Dispensation * Marsilius Patavinus in the 14 Cent. of Padua in his Defensor pacis It s Antiquity ‖ Dr. Barrow of the Pope's Supremacy 316. See there the unreasonableness of Dispensations †Anno 1215. Pag. 646 647. Mat. Paris p. 677. * Sir Cotton's Abridgment of the Records of the Tower amongst the Petitions of the Commons 51 E. 3. Numb 62. Dispensations from Rome are said to be the chief Grief Prinn's Second Tome Fol. 504. Ibidem 760. Innocent 4th * Dr. Barrotti in the Pope's Supremacy 31. L. 3. c. 3. sect 10. Fol. 39. * Sir Ed. Coke 2 Inst. 27. No Law or Custom of England can be annul'd but by Act of Parliament Selden's Dissertatio ad Fletam 539. Fol. 775. The King and Parlialiament have the Power of Dispensing The Statute of Dispensation The Preamble No Prescription The time of Limitation in a Writ of Right is limited to the time of R. I. Where the true Power of Dispensing resides 15 R. 2. nu 8. 2 H. 4. nu 26. R. 2. nu 22 17 R. 2. 34. 2 H. 4. nu 63. * Hob. 157. at the lower end It is the Office of Judges to advance Laws made for Religion according to their end tho' the words be short and imperfect †Sir Ro. Cott. Abridg. 1 R. 2. nu 95. 2. Inst. 408. * 39 E. 3. 21. 40 E. 3. 34. Objection * 12 H. 7. 19. Plowden 319 322. * Sir Moor's Reports 239. Warram's Case A Prerogative that tends to the great prejudice of the Subject is not allowable Croke Jac. 385. The same Case * 14 E. 3. c. 7. That by their trusting to tarry in their Office by procurement they are encouraged to do many Oppressions to the People 28 E. 3. c. 7. 42 E. 3. c. 9. 1 R. 2. c. 11 †Sir Cotton's Abr. 18 E. 3. nu 54. Objection Answer * 1 H. 4. c. 6. †11 E. 3. c. 1. 13 H. 7. 8. by Daver 's Letter B. Answer * See 13 H. 7. 8. by Daver's Letter B. Election of Sheriffs by the County Fol. 174 175. 28 E. 1. c. 8. chap. 13. See the Reports of E. 2. in t ' Memoranda Scac ' fo 28. * Sir Rob. Cot. Abr. 18 E. 3. nu 54. See the Stat. of 6 H. 8. c. 18. in the Statutes at large concerning the Under-Sheriff of Bristol 9 H. 5 c. 5. * Palmer's Rep. 451. Dr. Burnet's Hist. of the Rights of Princes 239. K. James in his Promonition to all Christian Monarchs 298. Objection Answer Objection Answer 8 R. 20. Answer Argument Answer Or Tributary L. 1. C. 5. †K. James 1. in his Speech to both Houses 1609 in his Works fol. 533 says the King with his Parliament are absolute in making or forming of any sort of Laws Sir Rawleigh's Hist. of the World fol. 245. ‖ Archbishop Laud too did the like Seld. Dissert 539. Seld. Dissertat ad fletam fol. 537. Pryn's Second Tome fol. 290 292 299. 301 302. 46 E. 3. Rot. Parl. nu 7. 8. Object Estoppel Answ. Object 2. Here is no Estoppel Answ. A Stranger may take the advantage of this Estopp 7 E. 4. 1. Br. Estoppel 163. Knoil Heymor's third Kebk 528. by Chief Justice Hale That a Stranger cannot falsifie a Verdict Rol. Abr. first part 362. Dr. and Stud. 68. à ad fin b. Object 2. Answ. A dependant Action An Action dependant or collateral * Jaques versus Caesar. And Dr. Drury's Ca. 8 R. 142. And Mackaelly's Ca. 9 R. 68. 1 H. 4. c. 6. Pag. 10.
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
and where it is a collateral Suit not depending upon that Record An Action against the Sheriff for an Escape of one taken in Execution this is a dependant Action and is grounded upon the Record of the Judgment given against the Party that escap'd The Sheriff cannot aver any thing against that Record and examine it over again nor can he take any advantage of Error or erroneous proceeding in obtaining that Judgment Saunders Rep. 2 part 101. So in an Action of Debt grounded upon a Judgment or in an Audita quaerela to be reliev'd upon a Judgment And so in our Case this Action of Debt for the 500 l. is grounded upon the Conviction which must stand for truth as long as it remains in force not avoided by Error or Attaint A Writ of Error to reverse a Judgment is a dependant Action In error the Plaintiff may not averr any thing against the Record Mullens versus Weldy Siderfin's 1st part 94. Error was sued in the Kings-Bench to reverse a Judgment given in the Palace-Court And the Plaintiff in Error assign'd for Error that the Duke of Ormond who is principal Judge of that Court by Patent was not there It was agreed by the Court that it might not be assign'd for Error for it was contrary to the Record But per Cur. in an Action of Trespass or false Imprisonment which says that Report are collateral Actions he may falsifie and assign that if he be taken upon such Judgment So if a man be indicted and convict of an Assault and Battery and afterwards the person so assaulted brings his Action for the Battery this hath no dependance upon the Indictment or Conviction for it may be sued though there were no Indictment but is a distinct and collateral Suit. The Indictment and Verdict is no Estoppel nor can so much as be given in Evidence as is held by the whole Court in the Case of Sampson versus Yardley and Tothill 19 Car. 2. B. R. Kebles's 2 part 384. The like in an Appeal of Murder Kebele's 2 part 223. Another Penalty upon the Offender against this Statute of 25 Car. 2. is That he shall be disabled to sue in any Action Now suppose a person convict at the Assizes sues an Action may not the Defendant in that Action take the advantage of that Disability and plead the Conviction As in Case of an Outlawry pleaded in Disability there need not be set forth all the proceedings in that Suit wherein the Plaintiff was outlawed but he may plead the Record of the Outlawry and rely upon it and it shall not be examin'd whether there was any just cause to sue him to the Outlawry or not The Indictment the Defendant's Plea to it and the Verdict upon it have determin'd the matter of Fact that the Defendant is guilty of the Offence against this Act of Parliament The Act it self hath pronounc'd the Judgment which consists of many particulars one whereof is That the Defendant shall forfest 500 l. to him that will sue for it And the Action of Debt for the 500 l. brought by the Plaintiff grounded upon all these is in the nature of an Execution And all these put together are not several and distinct Suits but in effect all but one Suit and Process one depending upon the other The second Point is Whether the Dispensation pleaded by the Defendant be a good Bar to the Action of Debt And this is properly called The Matter in Law and the great Point of the Case for which I refer the Reader to my Argument at large POSTSCRIPT BEING SOME Animadversions UPON A Book writ by Sir EDW. HERBERT Lord Chief Justice of the Common Pleas ENTITULED A short Account of the Authorities in Law upon which Judgment was given in Sir Hales's Case SINCE the finishing of my Argument about the Power of Dispensing with Paenal Statutes a Book came to my hands touching the same subject entituled A short Account of the Authorities in Law upon which Judgment was given in Sir Edward Hales his Case written by Sir Edward Herbert Chief Justice of the Common Pleas in vindication of himself And although I am of opinion that the substance of all the Arguments contained in the said Book are fully answered in my aforesaid Discourse yet I hold it necessary to make some Animadversions upon the said Book and to point out readily to the Reader the several Pages of my Discourse wherein the Arguments of the Chief Justice are more directly and particularly treated of and answered And there being great Reverence justly due to a Person that bears so high a Character as also to a Judgment given in that Superiour Court of the King's Bench and by advice of all but two of the rest of the Judges as I now hear some short Apology had need be used for that freedom I have taken to animadvert upon it being as I am but in a private station In short therefore I have not undertaken it out of any vain conceit of my own Abilities but out of a sincere desire to inform such as in the approaching Parliament are like to have this great Case in Judgment before them and some may possibly not be at leisure as I have been to study the Case the matter being of a mighty importance Nor have I entred the Lists upon any contentious humour or taking any advantage of the late Happy Change of publick Affairs I am I thank God more inclin'd to commiserate the Distress that may befal any persons by the change of the times it having been my own case so lately although they differ from me in Judgment or Interest I am very far from insulting over any whatever hard usage I my self have met with Nemo confidat nimiûm secundis Nemo desperet meliora lapsus My Apology is this 1. I was engaged in the Argument before the coming forth of this Book and it happening into my hands before my publishing of my Discourse I could not decline the observing something upon it without being suspected to have given up the Cause 2. The Lord Chief Justice himself hath by his Book given fresh occasion fairly to discuss the point again by declaring that he expects as we all do that it will receive a disquisition in Parliament 3. And as the Chief Justice hath endeavour'd with as much as can be said to give the World satisfaction in the justice and right of the Case to maintain the Judgment given so he is well known to be of that ingenuity and good temper and candour as willing to receive a satisfaction if any further Argument to the contrary may be so happy as to convince him The Chief Justice Herbert pag. 6. gives us the Definition of a Dispensation out of Sir Coke's 11th Report fol. 88. viz. Dispensatio mali prohibiti est de jure Domino Regi concessa propter impossibilitatem praevidendi de omnibus particularibus And again Dispensatio est mali prohibiti provida relaxacio utilitate ceu