Jus Regium Coronae OR The KING 's Supream Power in Dispensing with Penal Statutes More particularly as it relates to the two Test-Acts of the Twenty Fifth and Thirtieth of His Late Majesty King Charles the Second Argu'd by Reason And Confirm'd by the Common and Statute Laws of this Kingdom In Two Parts Auctore Jo. Wilsonio J.C. Sir Edw. Coke 1 Inst 64. Imperij Majestas Tutelae Salus LONDON Printed by Henry Hills Printer to the King 's Most Excellent Majesty for His Houshold and Chappel And are sold at his Printing-house on the Ditch-side in Black-Fryers 1688. TO THE HONORABLE SOCIETY OF Lincolns-Inn IT is my Honour Gentlemen that I serv'd a double Apprentiship within your Walls and however I have for many years discontinu'd it is not possible that any Man bred in a Society of so much Learning and Air should have altogether forgotten what he once imbib'd The Loyalty of your House excepting some single Person here and there was in the worst of times exemplary Nor were Ye last in bringing the King back again to His And because the Dispensing Power best secures Him in it and the Kingdom under it unto whom more justly could I make a Proof of it than to that Honorable Body from whom I receiv'd it Such Gentlemen is the Discourse I herewith present Ye and in that being now no longer mine but Yours as none are more able be also as pleas'd to defend it Or so kind at least to say this of Your old Acquaintance That he spoke his Thoughts That he believ'd them true And on that account would not willingly quit them till he be better inform'd Gentlemen Your most Humble Servant John Wilson THE CONTENTS OF THE FIRST PART SECTION I. I. THat the rigor of Penal Laws were insupportable without some Supream Power above those Laws to temper that rigor and dispense with them as they become inconvenient Especially when all Human Actions are subject to Corruption and what might fit one time may be the bane of another Examples of it in the Lacedemonian Ephori The Roman Decemviri Dictator Triumvirat SECT II. II. THat this Power cannot lie in any Select part of the People or in the whole Therefore it must be in the Sovereign Prince or Absolute Monarch And such the Kings of England have ever been and now are Examples of it before and since the Conquest Further prov'd from Common Law and Statute Law. The King is sole Legislator and Interpreter of those Laws That it appears not to have been ever the intent of God that the People should have any share in the Government but rather the contrary That the Supream Power was not deriv'd from the People or given in Trust by them but radically in the Prince as reserv'd to Him from the first Origin of Power and before any positive or written Law at what time Men were govern'd by a Natural Equity SECT III. III. THat without this Supream Power the King were in a worse condition than the Subject 1. Any Restriction on the means of Livelyhood of a Subject is void A Fortiore on any necessary part of the Government 2. A Subject on some Accidents may break a Law yet not offend the Law. A fortiore the King when the Kingdom is in danger of which Himself is the sole Judge whither actual or expectant 3. A Subject shall justifie a particular wrong for a public Good. A fortiore the King for a common Benefit 4. Where the Subject is enabled to the greater he is of consequence enabled to the less A fortiore the King He may pardon the highest Offences much more prevent any lesser matter from becoming an Offence SECT IV. IV. THat no Government can be entire that is defective in any necessary part And therefore all Governments besides the power of the Sword have ever pretended to this Supream Power as a Sine quo non Both Powers discust That even our most prudently design'd Constitutions have turn'd to hurt prov'd from a Series of our own Histories That every of the late Vsurpt Powers as we call 'em frequently made use of this Supream Power of Dispensing c. An Answer to that common Objection That the King is sworn SECT V. V. THe Case of the Test 25 Car. 2d stated and that His Majesties granting Commissions to certain Persons not qualify'd according to the said Act and yet retaining them in His Service is warrantable by the Law of Reason and the Laws of the Land. By the Law of Reason 1. Whither we take the Argument Ab Honesto Ab utili or à Tuto 2. The King is bound to defend according to the best of His skill Who shall be Judge of that skill Himself or the People 3. What damage to the whole that the King makes use of some part without excluding the rest Or if it were a damage it is but Damnum sine injuria By the Laws of the Land. 1. As the King is bound to defend the Subject is bound to obey And this Service of the Subject is due to the King by the Law of Nature which cannot be taken away no not by Act of Parliament 2. A further proof That the King is sole Judge of the danger of the Kingdom and how and when it is to be prevented c. 3. The Law requires nothing to be done but it permits the way and means of doing it else it were Imperfect Lame and Vnjust The King is to defend shall He not chuse His Souldiers 4. A mixt Argument of Law and Reason from the time when the King granted those Commissions The Test examined When made By whom carry'd on To what end There was Bellum flagrans at the time when those Commissions were given out And that His Majesties yet retaining those Officers falls under the same Reason and Law. SECT VI. VI. THat the Statute has created a disability in the Person and other Objections answered 1. Object Grounded on the Disabilities created by the respective Statutes of 31 El. c. 6. against Simony The Vendee of an Office contrary to the 5 Ed. 6. c. 16. And the not taking the Oath of Supremacy according to the 5 El. c. 1. severally answer'd and prov'd not to be under the same Reason 2. Object That the King had other hands A Loyal City A trusty Militia Answ But is the King bound to make use of them in extraordinary Cases The King is Solus Rex semper Rex He may charge the Subject c. And Ordain without Parliament with Instances of both 3. Object Grounded on the vacating the Judgment for the King in the Case of Ship-Mony by the House of Lords in Parliament 1640. Answer'd And the King vindicated by truly stating the Case between His Majesty and that Parliament Their evil treating Him before the Commons Murder'd Him. That He was Virtually tho' not Formally under a Force And that Authority without Power is meerly imaginary SECT VII VII THe Sum of the whole further asserted and confirm'd
the King alone V. Examples of Personal Disabilities some created by Parliament others by Ecclesiastical Canons dispenst with by the King others void of themselves VI. The King cannot devest Himself or restrain His Successor of any regal Right that is essentially in the Crown These are my Materials for covering the House I shall proceed to finish it 1. And that there are many things so incident in power to the King that it is not in the power of a Parliament to take them away Judge Hutton of whom before agrees it with the rest of the Judges and Instances in the Case of Henry the 7th Annal Char. 1. f. 592.593 and that a Parliament could not dispose the Right of the Crown The Power of making Wars and Leagues which also was agreed by Judge Crooke The Power of Coin and its value The sole Power of Calling Ibid. 582. Proroguing and Dissolving Parliaments And that no Law can be made without His consent And many other Monarchical Powers and Prerogatives which saith he to be taken away were against Natural Reason and further calls them Incidents so inseparable that a Parliament cannot take them away For in another place they belong to His Crown as Head and Protector And again both of them An Act of Parliament That the King should have no aid of His Subjects would not bind because it would be against Natural Reason Which was but a Confirmation of what Judge Crawley and others the Judges had delivered in the same Case And further says the said Judge Crawley you cannot have a King without Regal Rights no not by Act of Parliament And what are these Regal Rights but the Kings Prerogative which contains in its self Matter of Prescription Plowd 332. and is consequently as inseparable Incident 2. Both Kings and Parliaments have been ever tender of having them encroacht on as may appear by the Savings in several Acts of Parliament The St. Praerogativa Regis 3 E. 1. closes thus The King would not that at any other time His Concessions thereby made should turn in prejudice to Him or His Crown but that such Rights as appertain to Him should be saved in all points So the King will not draw any Aid 25 E. 3. c. 5. or Prize into Custom but by the common Assent of all the Realm Saving the antient Aids and Prizes due and accustomed So no Imposition shall be set upon Wooll 11 R. 2. c. 9. Leather c. other than as granted by Parliament and if any be to be nulled Saving to the King His antient Right So 1 H. 4. c. 6. the King is content to be concluded by the Wise Men of His Realm touching the Estate of Him and His Realm Saving always His Liberty i.e. His Prerogative Now what 's the meaning of those Savings But that those Parliaments considering there might in after time some new Accidents happen which could not be then foreseen they bethought themselves of no better way of securing against them than by leaving 'em to the King's Discretion And therefore when it is said The King will not do but so or so what other can it be but that the King will not ordinarily do otherwise And that it was not the Parliaments intent but that in Cases extraordinary He should make use of His antient Right And what antienter Right than the Service of the Subject for defence of the Kingdom Nor is it to be thought but when the Law assigns the King the defence of the Kingdom it presumes Him also the power to raise the means for the doing it Or else it were but the charge of a defence without the power and means And if the King could not do this out of Parliament then were the Parliament the sole Judge and not the King which also were contradictory to the free Majestick Power of a Monarch And if this be not enough there is yet another Statute that makes it clear For when it says no Man shall be compell'd out of his Shire 1 E. 3. c. 5. but when necessity requires and then shall be done as in times past How is that If the King before that Statute could not have don 't that But had been to no purpose and if the King before that could have don it as I have shewn what was the constant practice of His Father's and Grand-father's times it is a plain Confession of that Right and a modest entreaty that He will not ordinarily make use of that discretionary power but as Necessity requires Other while again we have it by Implication where such Savings have been omitted As when the Petition of Right was in agitation 3 Car. 1. the Commons to take off all doubt of encroaching on the King 's Rights made this Protestation That it was not their intention thereby to bind the King from His ancient Right which the King also on His passing that Bill takes particular notice of however it comes to be left out in the last Edition of the Statutes at large as that Clause saving the King's Regality in the Statute 2 R. 2. St. 2. c. 4. for Confirmation of Liberties is omitted in all of them Nor was this Protestation made without Reason for it had been long before declar'd 42 E. 3. 4 Inst 14. 357. that they could not consent to any thing in Parliament that tended to the disinherison of the King or His Crown to which they were Sworn It was 18 E. 3. c. 4. and is a part of the Judges Oath And of the Coronation Oath That He shall keep all the Honours and Dignities of the Crown Cowel Tit. Oath in all manner whole without minishment and the Rights of the Crown hurt decayed or lost to His Power shall call again into the antient Estate From which it is undeniable but that the King has antient Rights and being so it necessarily follows That they cannot be taken away till prov'd to be forfeited And if forfeited who shall sit in Judgment on it when the King having no Peer in His Realm 3 E. 3.19 cannot be judged Himself nor by His own Authority and other there is none in His Realm 3. The Power of Dispensing or granting Non Obstantes to Penal Statutes is one of those antient Rights Sir Robert Holburn of whom also before confesses it The King saith he may dispense with Penal Laws and make them as none Ibid Ann. 552. For there is a necessity that this Power should be in some Body No Law says the King shall not do it and Acts of Parliament are but Leges temporis Book of Law. 82. The King saith Sir Henry Finch hath an absolute power over all for by a Non Obstante he may dispense with a Statute Law tho' the Statute say such Dispensation shall be meerly void And Judge Barkely to the same purpose A Penal Law is made and a Clause in it Ibid. Ann. 57â— that the King shall not dispense with
it A Non Obstante may be made to that Non Obstante for it taketh away a necessary Power out of the Kings Hands whose Person Ibid. Ann. 59â— and Royal Prerogative cannot be restrain'd saith Judge Jones no not by Act of Parliament And if there yet remain'd a doubt Sir Edw. Coke will pass for Authority when speaking of some Statutes that had restrain'd the King's Power of granting Pardons his words are these 3 Inst 236. But it hath been conceived which we will not question That the King may Dispense with these Laws by a Non Obstante be it general or special Now in as much as this power is not in the People or deriv'd from them it follows as before that it be Original Innate and inherent in the Person of the King Inter jura summae Majestatis and consequently inseparable 4. Statutes derogatory to the Prerogative have some of them been held for void others recall'd An Act of Parliament saith Sir J. Banks extends not to take away any Ibid. Ann. 569. thing that belongs to the Crown of Common Right for it is Lexterrae the Law of the Land. The Liberties of the Subject are by process of time become of Common Right an Act of Parliament against which 8 Coke 118. were void And can the Kings Prerogative from which those Liberties were at first deriv'd be of less right Of less force in Law When it is said Rot. Parl. 17. â— 3. N. 13. An Act of Parliament contrary to the Fundamental Laws and Prerogative of the King shall lose the Name of a Statute It binds not the King saith Judge Vernon and if it doth not bind â—â—id Ann. 581. what is it but void And his Reason is because it is Derogatory to the Prerogative For as Judge Jones The Power of the King is a Special Prerogative â—â—id Ann. 592. and if good at Common Law takes away the Statute Ibid. Ann. 598. pro bono publico And the Lord Chief Baron Davenport it would be Felo de se and so void because it would destroy the Jus Regale And that the King may revoke such a Derogatory Statute 〈◊〉 prerog 180. we have the Authority of Serjeant Rolle And that it is no new thing there are several Instances King John by Charter which says Gascoignâ— is no Statute 〈◊〉 E. 4.19 nor was it ever taken for such but where it concurs with Magna Charta grants That Nullum Scutagium vel Auxilium c. No Tenant by Knights Service shall be compelled to make a Voyage to War against the French or Scots or aid be taken without common consent but to make his Eldest Son a Knight Marry his Eldest Daughter And redeem his Person But when was this granted Was it not at Running-Mead An. Reg. 17. at what time there were Banners display'd and the Barons and Commonalty in open Rebellion against him An odd Modus tenendi Parliamentum And shall it be said an enforc't Act from a distrest King shall bind the Crown Or shall the Subject only plead Duritiam Minas It is somewhat yet that it has had no Confirmation in so many Parliaments since and what difference in substance whither the Candle be put out or go out of its self but that it leaves a Stench behind it However the next is in point Some things derogatory to the Crown had been enacted in Edw. the 3d's time As 15 E. 3. As that no Peer should be question'd but in Parliament No Great Officer remov'd but in Parliament No Clergy-Man come before Temporal Judges c. The King the same year on better advice revokes and Nulls them as contrary to the Laws of the Realm drawn from Him against His Will and prejudicial to the Prerogative of His Crown 4 Inst 52 But says Sir Edw. Coke the Printed Book supposes there was another Parliament in the said 15. E. 3. Whereas in Truth the Parliament that repeal'd them was in Quind Pas 17. E. 3. In answer to which it shall be enough to me that he owns these Acts were made the said 15. E. 3. as in Fact they were and that the Parliament of that year made no Repeal of them which also is as true and I hold with him But with this That it was a single Act of the King 's and out of Parliament for the King the same 15th year considering how in a manner He had disrob'd Himself of His Authority by His Writ or Royal Mandate to the respective Sheriffs which carries not the Stile of an Act of Parliament or any the other the Acts of His time Wills and Commands them that for the Reasons aforesaid they proclaim those Acts Null As may be seen in the Printed Statutes in a particular Writ to the Sheriff of Lincoln and a wonder it is this also had not been left out among the rest But now to come up with him The Contrivers of these Acts for it appears by them that the Grandees only not the Commons were concern'd in them saw the King had asserted His Prerogative and wanted not Resolution of going thro' with it and knowing themselves were to be the same Persons in the next Parliament thought it high-time to comply with the present and since the King would not come down to them to come up to Him and by making it their own Act stifle such a signal precedent for the Prerogative And therefore in the 17th of the said King which Sir Edw. Coke mentions those Acts were repealed in Parliament and further declared That they should lose the Name of Statutes as being contrary to the Laws and Prerogative Which with all due Submission I leave to every Man's Examination yet withal think that he that reported Calvin's Case might have forborn this or done it more Candidly But the Parliament of the 15th of His Father took better Measures there had been Ordinances in the 5th Edw. 2d That the King could not make War without the assent of His Barons The Parliament saw the King resolv'd to have them off and they generously prevented Him by a Repeal of their own as prejudicial Rot. Parl. 15. E. 2. M. 31. to the Royal Power of a King. 5. Examples of Personal Disabilities some created by Parliament Others by Ecclesiastical Canons dispenst with by the King Others void in themselves Wherein also I do but further confirm what I have before laid down and from the practice of past times make a reasonable Interpretation of the present The St. 4 H. 4. c. 31. says no Welsh-man shall be Justice or other Officer in any part of Wales Yet the King may dispense with it So the 8 R. 2. c. 2. says no Man of Law shall be Justice of Assize 12 Coke 18. or Gaol-Delivery in his own Country i. e. in the County where he was Born or doth Inhabit for so the 33. H. 8. c. 24. explains it under the Penalty of an 100 l. And yet the King 's
Disseiss'd of his Liberties and the King alone be restrain'd in His Prerogative what also were it but to put Him in a worse Condition than the Subject To examin this but de similibus ad similia were Argument enough but when the heavy Scale turns all for the King 't were the heighth of Injustice to deny Him His Weight For instance 1. Any restriction upon a Subject 2 H. 5.5 from the Lawful Exercise of his Trade is void though the Party himself gave a Bond not to Exercise it Gravesend Barge Case 10 Jac. C. Ban. Or that the Restriction be but Temporary Or Exclude any one and leave it not Free to all Nay further 21 E. 4.79 11 Cok. 53. 85. a Man shall not be Distrein'd though for a just Duty by any Instrument necessary to his Trade As the Anvil from a Smith 14 H. 8. 2 Inst 565. Deut. 24.6 Books from a Scholar The Mill-Stone from a Millar as accordant to the Law of God For it is a taking his Life to pledge in taking away his Lawful means of livelihood And this Mr. Latch calls A Fundamental Law Post-Office Case and the contrary A breach of the innate Liberty of a Free-born People And shall a Subject claim an innate Liberty and it be yet doubted of the Kings innate Prerogative which the Law calls Libertas Regia Bract. l. 1. Privilegium Regis Britt f. 27. Reg. f. 61. Droit le Roy Jus Regium Coronae And of which he is no more Deprivaable than of his Crown or Life Has God Intrusted the King with the Good of the Community and shall he be retrench'd in the common Exercise of it The Men of this Age might be too wise for Paradoxes a King without Power is the same as a King without Subjects 2. A Subject may upon some accidents break a Law yet not offend the Law as in case of Necessity or for the avoiding a greater inconvenience Plowd 18.19 2 Inst 168. c. Such and the like being exempted by the Law of Reason when the words of the Law are expresly against it On which ground tho' the killing a Man be Felony 3 Inst 56. yet for the inevitable necessity of saving his own life a man may kill another 5 Coke 91. Or a Thief attempting to Rob him on the Road Or in his Dwelling-House Or breaking it by Night and no Felony 9 Coke 68. In like manner an Officer if a Felon resist or fly from him so that he cannot otherwise Arrest him 15 H. 7.2 may kill him And the breaking of Prison is Felony but not if the Prison be on Fire And now if Laws may in case of a private Man be suspended by necessity how much more when the Kingdom is in danger of which the Law makes the King sole Judge Vid. Their Arguments by themselves in Quarto whither actual or expectant As was resolv'd by all the Judges even Hutton and Crook concurring in that Point in the Case of Ship-Mony 3. A Subject shall justifie a particular Wrong for a Public Good And rather than the Common-wealth shall suffer the Law will turn some prejudice to particular Persons Every Man's House is his Castle Dyer 34. yet a Sheriff if refus'd entrance may break it to apprehend a Felon Trespass is an offence against the Property of another and always presum'd to be done Vi armis yet justifiable for a common benefit as to make Bulwarks in another mans Ground Dyer 60. 3 Inst 84. or dig Salt-Peter in his Out-houses for the defence of the Kingdom 11 Coke 82. Dyer 36. 8 E. 4.18 21 E. 4.28 To pull down Houses in a public Fire To turn the Plow on the Head-land of another in favor of Husbandry And dry Nets on his Land for the maintenance of Fishing and all this because private prejudice is repaird by public Utility Nay Mr. Prynn justifies his Lords Power of Parliament Part. 4. p. 22. and Commons for laying Taxes on the People for the public Good tho' in truth it was but to support a Rebellion And shall the King that hath the largest Stake in this public Good want so necessary a part of the Government as not to be able to dispense with an inconvenient Statute especially when the not doing it may endanger that Good which is the end of all Laws If a Subject may justifie as before à fortiore may the King in the present Case For all positive Laws being subordinate to the safety of the People against which even the Law of Property carries no force it is but just and reasonable that they give place to the Law of Nature for common Defence 4. Where the Subject is enabled to the Greater he is of consequence enabled to the Lesser 8 Coke 70. A Man has power to make Leases provided they exceed not three Lives or twenty one years he may Lease for Ninety nine years if three Lives live so long for 't is a lesser Estate à fortiore where the King is enabled to the Greater shall He not also be enabled to the Lesser He can Pardon what hinders but he may prevent Witch-craft and Heresie are Offences against the first Table yet the King may Pardon both how much more then Dispense with any thing no Offence against the second Table Nor shall I believe but the Commons of that Parliament that brought in this and the later Test were of Opinion that His Majesty might dispense with them till I am better enform'd what was the meaning of that Address of theirs to the King Jan. 20. 1680. wherein they say It was their Opinion That the Prosecuting Protestant Dissenters upon Penal Laws is at this time grievous to the Subject and dangerous to the Peace of the Kingdom And what meant they be not Prosecuting but that they might nay ought to be dispens'd with 'T was their Opinion in one Case 't is the King's in another And shall not the Lord be at least as his Servant But to go on with the Argument High Treason is the most heynous of all others Crimen laesae Majestatis and yet the King may Pardon it 3 Inst 211. or any part of the Execution or all saving part The Sentence for Felony is Hanging yet the King may alter it to Beheading As the Lord H. 32 H. 8 Edward Duke of S. 5 E. 6. The Earl of C. 7 Car. 1. and others Attainted of Felony yet Beheaded The Judgment against a Woman for Treason is Burning yet the Countess of S. Anne of B. and others in H. VIII's time And the Lady J. G. 1 Mary Attainted of High Treason were Beheaded And is not the Body more than Raiment Shall the King have the Power of Life and Death and yet be restrain'd in a matter of indifferency Shall every Man be Lord and Judge in his own Family and the King alone be curb'd in His the Kingdom Shall he always see with other
if I take it right that any such Liberty was ever talk'd of For that of the Men of Kent to William the Conqueror was a formal Stipulation with a Conqueror to whom as yet they ow'd no Natural Ligeance and extort a Charter from Him at Running-Mead which laid the Foundation of the Barons Wars However this was expediated for the present and now the erecting of Borroughs and Corporations so many distinct Liberties in a County and Exempt from either of them might one would have thought been a prudent Expedient of lessening both and at first it struck well towards it for as the one got ground the other lost it but it lasted not always without running into worse Henry III. and his Father before Him had been long turmoil'd with those Barons Wars and having at last after a threescore years Rebellion more by Factions amongst themselves than any strength of his own got the better of them began to consider that those Seditious Barons for as yet the Commons were not any Constituent part of a Parliament had brought Subjects to be more than they should be and Kings less than they were and therefore in the 52. of his Reign calls a Parliament and brought in the Commons to counter-ballance them And Edward l. his Son by calling some few of His Barons to Parliament by Writ and that pro hac vice tantum insensibly lessened their number and freed the Crown from the Wardship of His Barons And yet even this answer'd not the Expectation for as those few that remain'd became the more conspicuous so the Staddles being not left too thick the Underwoods got up the easier The Commons fell into a Foreign Trade that Trade brought home Moneys those Moneys gave them footing in the Estates of the Nobility The device of common Recoveries in Edward III's time secur'd those Estates All together gave them Reputation and now who knew but another Rebellion might make them Lords also And now Privilege is set up against Prerogative nor could they long want some Discontent among the Lords to give it Countenance The Crown was become necessitous and indulg'd their Demands and what was the effect of it They take upon them to be Judges of the Right to the Crown and accordingly give up Richard II. to the undue pretences of Henry IV. and though they assisted Richard Duke of York and his Son afterwards King Edward IV. to the recovery of their Right against Henry VI. yet they set up Richard III. against their lawful King Edward V. However Henry VII deeming them of more use to Him than a topping Nobility first clip'd the later's Wings by the Statute against Retainers and then lessened their Grandeur by encreasing their number Since which the Kings his Successors having added more and not the least share of Abbey-Lands fal'n to the Commons what have all these prudent intentions prov'd but a running from one extream to another And of what advantage this last has been let the Rebellion 1640. Witness There is one thing more which I had almost forgotten Gylds Fraternities and Corporations excellently without question design'd at first for the Advancement of Trade by carrying it on with a common Stock Regulating the Abuse of Manufactures keeping their Members in Obedience to the King and the like But have not they also fall'n from the first intention Is Trade in general advanced by it Or has it not been made use of as a double Key to Let-in some few and Lock-out the greater number Are Manufactures either improv'd or rectifi'd Or has not the knack of making them slighter crept in its room And instead of Obedience to the King have they not been the common Sourse and Fomenters of Sedition If this and what I have offered before be true it proves my Assertion and if it be not what means all this Lowing and Bellowing of the Herd The first intention of Physick was for Prevention and Remedy yet it often so happens that it joins with the Disease and both work together to the destruction of the Body And therefore upon this matter it seems to be of absolute necessity that there be this Supreme Power and that it be exerted in counter-working the injuries of Time and Chance by making provision for Contingencies in the due application of occasional Remedies without which there would be a failer in Government Now if this Power were ty'd up to such Dogmata adamantina unalterable Decrees that in no case whatever they were to be vary'd from where were the use of it The contrary has been the practice of all Ages and therefore I shall not labor the Point at present till I come to shew what the Kings of England and that de jure have done in like cases of which in its proper place However yet before I leave it here and because also I am wholly at home it may not be amiss to examin whether the late Usurp'd Powers did not look upon this Power of Dispensing so absolutely necessary to the carrying on their Arms against their Leige-Lord and Sovereign The King that to say nothing of the Divine Law they not only dispens'd with Statue-Law but even the Common-Law too which where it made not against themselves they held indispensible I shall begin with the Parliament I so lately mentioned where Collonel Nath. Fienns afterwards one of their Commissioners for the Seal tells them That it is against the Law and Light of Nature for a Man to Swear never to consent to alter a thing His 2d Speech to the House p. 13. which in its own Nature alterable and may prove inconvenient and fit to be altered And that both Houses were of the same Opinion may be seen in this that they acted accordingly For by the Name of the Lords and Commons in Parliament they Ordain'd and again made non Obstantes to those Ordinances As 9th October 1643. 23th May 47. 22th and 24th April ' 48. 24th July ' 48. and 16th December ' 48. Repeal'd their own Ordinance of 29th August ' 45. which is contra Consuetudinem Parliamenti Then again as they grew higher They Abolish'd Episcopacy Any Letters Patents from the Crown made or to be made or any other Authority whatsoever any Law Statute Usage or Custom to the contrary notwithstanding 9th October ' 46. Sold Bishops Lands with a like Clause 23th September ' 47. And Abrogated the Feast of the Nativity and all other Festivals call'd Holy-days any Law Statute Constitution or Canon to the contrary notwithstanding 3d. June ' 47. Then when they had killed and taken Possession and Enacted themselves the Supreme Authority of the Nation I speak now of the Commons for I find no concurrence of the Lords after the 9th Jan. ' 48. they made non Obstantes to their own Acts As the 8th and 19th June ' 49. Took away Tithes appropriate 8th June ' 49. Recontinu'd Pleas in Durham 19th June ' 49. Sold Fee-farm Rents 27th July ' 50. Set up Marrying by Justices
Hambden of the County of Bucks and whose share was but 20 s. makes default The King an Reg. 12. Writes to the Judges and demands their Opinion in Writing Whither when the good or safety of the Kingdom in general is concern'd the King may not by Writ under the Great Seal command all His Subjects of this Kingdom to furnish a certain number of Ships and Men for such time as the King shall think fit and by Law compel the doing it in case of refusal And whither in such a case He is not the sole Judge both of the danger of the Kingdom and when and how the same is to be prevented and avoided To this every one of the 12 Judges did subscribe in the Affirmative Thereupon process is issu'd out of the Exchequer against Hambden He demurs upon the Legality of the Writ It is argu'd by all the Judges The Majority of them give their Opinions for the Writs on which the Barons gave Judgment which Judgment was in the 16th of the said King 27 Feb. 1640. vacated in Parliament But with due honour to all other Parliaments what Parliament was it It was begun in that House of Commons that afterward Murder'd that King And tho' the Vacatur was per Considerationem Judicium Dominorum Spiritualium Temporalium in Curia Parliamenti c. Yet as to the Lords Spiritual this may be said That a leading Man among them then was and from the time the Seal had been taken from him had been also a Discontent nor was it hard to perswade Persons interested that the Clergy were not liable to Secular Charges whereas aid in War building of Bridges and raising Forts is that Trinoda necessitas that binds the Clergy as well as the Laity And what got they by it but that as it open'd a Gap to several Acts that past afterwards so the King being lessen'd in His Authority was unable to defend them from a worse Vacatur which was put upon themselves 17 Car. 1. c. 22. within one full year after it And for the Lords Temporal such or most of them I mean as follow'd not His Majesty to Oxford they joyn'd with those Commons in making Ordinances to raise Monies and Arms for the carrying on of that Rebellion which afterwards inaudito Regibus exemplo brought Him to the Block and their Priviledge of Peerage with Him. In short the matter is beyond excuse if they would not have had the Clock gone they might have chosen not to have wound it up or taken off the Weights For tho' that Vacatur of the House of Lords upon the Judgment in the Exchequer was confirm'd by an Act of Parliament what was gotten by that 20 s. which cost the Kingdom more Treasure than it was at any one time worth to have been sold and more Blood than would have Conquer'd another Nor was it more than necessary to have said so much touching that Parliament with whom the King was virtually tho' not formally under a Force For as preparatory to what ensu'd they first got an Act of Parliament that they should not be Dissolv'd or Prorogu'd but by Act of Parliament And having gotten this Footing in the same Runn they procur'd others for taking off The several Courts of the Star-Chamber Presidencies of Wales See the Acts of the 17. Car. 1. and the North Dutchy of Lancaster Exchequer of the Palatinate of Chester High-Commission And now to throw a Personal disrepute upon His Majesty they bring in that Bill against Ship-mony as having prenecessitated Him not to deny any thing And having in the same heat got the Stannaries and the Statute 1 E. 2. de Militibus taken off and the Bishops out of the House of Lords the very next Act that past was the impressing Souldiers for Ireland And what did they do with them See the King's Answer to their Irish Papers But having driven the King from Whitehall by Tumults fought Him at Edge-Hill with those individual Forces Thus inch by inch fell that goodly Oak of the British Forest His Roots and Binders were cut off and what wonder if His own weight brought Him down Or that the People were so intent on gathering the Sticks that they wanted leisure to heed what was done And now to close this Section If Authority without Power be but what Lucan says of Pompey Magni nominis umbra as without further proof was verify'd in him That Government certainly must be an imaginary nothing or at best but painted wings that has not the power of preserving its self as the Emergency or Exigence of Affairs requires Nor is it ever likely to be long liv'd where it wants the Resolution to make it self obey'd It is said of Saul that he feared the people 1 Sam. 15.24 But it lost him the Kingdom And how probably can it be otherwise when the People shall be more at Liberty than the Soveraign Shall they stop at nothing for Subverting the Government and is it reasonable the King be abridg'd for the saving it What hurt is it that Caesar have the things that are Caesar's especially when the profit and advantage is the Peoples The contrary I am sure has ever embroyl'd us and he that goes no further than our own Histories will find That the more our Kings have been bound the more have they shaken off those Fetters and the more it has been endeavour'd to restrain their Rights the more have they ever exerted their Authority In a word we have the Interest of a King for our Defence and the Word of a King for our Security and if an Act of Parliament cannot bar the King of any thing that is due to Him of Common right how much better were it to believe Him to be what we would have Him and make him so than by disputing the dividing Mathematical points and engaging our selves in impracticable Notions catch at Shadows and lose the Substance The Camel in the Fable might have kept his Ears if he could have been contented without Horns SECT VII The Sum of the whole further asserted and confirm'd from several Statutes and other Authorities of the Common-Law c. I Have already prov'd the necessity of this Supream Power That it is innate and inherent in the Person of an absolute Monarch What that is That the Kings of England are such And spoken at large to their power of Dispensing It remains now that for a close of the whole I further shew I. That there are divers things so incident in power to the King that it is not in the power of a Parliament to take them away II. That both Kings and Parliaments have been ever tender of having them encroach't on as may appear by the Savings in several Statutes III. That the Power of Dispensing and granting Non Obstantes to Penal Statutes is one of those Incidents and that inseparable IV. That Statutes derogatory to the Prerogative have some of them been held for void others recall'd by
from several Statutes and other Authorities of the Common Law. 1. That there are several things so incident in Power to the King that it is not in the power of a Parliament to take them away 2. That both Kings and Parliaments have been ever tender of having them encroacht on as may appear by the Savings in several Acts of Parliament 3 That the power of Dispensing or granting Non Obstantes to Penal Statutes is one of those Incidents and that inseparable 4. That Statutes derogatory to the Prerogative have some of them been held for void others revok'd by the King solely 5. Examples of Personal Disabilities some Created by Parliament others by Ecclesiastical Canons dispenst with by the King others void in themselves 6. The King cannot devest Himself or restrain His Successor of any regal Right that is Essentially in the Crown Jus Regium Coronae c. The First Part. In which among other things the Statute 25 Car. 2. is discuss'd and prov'd that the King may dispense with it I Have taken upon me an Argument the King 's Supreme Power in Dispensing with Penal Laws c. Wherein nevertheless If all Knowledge be but Remembrance and the mind of Man knoweth all things and only demandeth to have her own Notions excited and awaked I hold my self the more excusable in as much as I broach no new Opinion but only call to remembrance what unbias'd Men know well enough if they would but recollect and therefore without further Apology I shall keep my self to the Method I propos'd in the Contents and begin with the first SECT I. That the rigor of Penal Laws were insupportable without some Supreme Power above those Laws to temper that rigor and dispense with them as they shall become inconvenient c. HAd the World continu'd as when God said of it And behold all things were very good Or at least in the condition of which the Apostle speaks who having no Law were a Law to themselves there had been no use of Laws Mankind had followed the dictates of Nature and done to every one as they would have been done to themselves But when that great Impress began to be obliterated and Man took no other measures than what his own Will or private Interest how repugnant soever to the well-fare of the whole prompted Princes the common Fathers of their Countries as well to obviate the Distemper as to keep peace among their Children first bethought them of Laws and gave them That such as would not do what they ought to do for the love of Virtue might yet be deterr'd from doing what they ought not to do for fear of the Punishment These Laws therefore like ancient Statues were drawn bigger than the Life that they might be seen at distance and perform the Office of a Pharos in giving notice of a dangerous Shoar Esto and Sunto was their best Language and that too under the greatest severity and largest comprehension that no one might presume to think himself exempted And now since it is not in Man that he be impeccable but that even the most cautious some time or other fall foul of those Laws and much more they that never heed their steps What would become of every Man if the rigor of Law should be let loose upon him Whosoever but stumbles on it is in danger of brusing and on whom soever it falls it crusheth him to pieces In short The wringing of the Nose causeth Blood saith Augur and if every man's actions shall be stretch'd as far as they may be strein'd who knows what bloody construction may be made of them To go no further than our own Penal Statutes some obsolete others by process of time become apparently impossible or inconvenient to be perform'd What work have they in former times made among the People Have they not been such Thorns in their sides or rather Snares to vex and entangle them that Pluet super eos laqueos might but too truly be said of them And is any man so secure at present that he is sure there is nothing can reach him Has he so wash'd his Hands in Innocence that he but thinks he could say In nullo erratum est I am apt to believe all men have offended more or less and consequently cannot be without some apprehensions of danger Even Oxen boggle at a Slaughter-house And Man of all creatures is most uneasie with a Sword over his Head How necessary then is it that there be some Supreme Power above those Laws to temper their Rigor and dispense with them as they shall become inconvenient where by dispensing I mean the Relaxation of a Law whereby that is permitted to be done which otherwise the Law had prohibited Nor would I be so taken as if I carry'd the least Eye against any Law that concerns Property No I confine my self to such Laws as respect Government and which by reason of unforeseen accidents that may happen or the necessity of State that require it are in their own nature dispensible for as much as Acts of Parliament being but Leges temporis and made for the present occasion it may so happen that what was meant for the preservation of the Government may by a Vicissitude of time turn to the destruction of it The clearest Waters will gather a Sediment and the freshest Streams run down into the Salt Sea of corruption And therefore if Princes shall not by Industry and Policy keep head against the inclination of Time all Institutions be they never so pure will corrupt and degenerate The Lacedemonian Ephori were at first so many Assistants to their Kings but what by the corruption of Time and Manners and the want of a Cheque on them overtop'd the Monarchy In like manner the Decemviri of Rome primarily intended for the better administration of Justice in making a supply to such Laws as they wanted and rectifying and amending such as were faulty prov'd a Remedy worse than the Disease and ended in Tyranny Add to this That their so often successful Officer of Dictator or Populi Magister for there lay no Appeal from him to the People was never chosen for above six Months at one time nor then either but upon some imminent danger and to avoid the confusion of several Commands Yet that so cautelously design'd preservative of their Liberty became at last its destruction in Julius And lastly The Triumvirat of Augustus Antonius and Lepidus promis'd fair for setling the Common-Wealth but proscrib'd it into Confusion So Morally impossible it is that any condition or State of Men or Constitutions of their making be the same in all Times or sute with all occasions and therefore Remedies ought to be provided as fast as Time breeds mischief The first Man being in Perfection abided not and what may be expected of his Posterity all Ages have found Damnosa quid non imminuit dies Aetas parentum pejor avis tulit Nos nequiores mox daturos Progeniem Vitiosiorem