the King 's Right as to General Dispensations But if it be otherwise understood only as to Dispense with single persons it is at least a clear and solemn Admittance of that Right And as to the King 's Right of Dispensing Generally it is proved before to be Admitted by the whole Kingdom in the Cases of his now Majesties Dispensations in Relation to the Importation of French Wines and the Statutes relating to Navigation and the breadth of Cart-Wheels to which may be added the known Case of the King 's General Dispensation with several Penal Laws made in Relation to a Matter Ecclesiastical It is in the poynt of keeping of Lent and Fasting Enjoyned by the King 's Ecclesiastical Laws the Cannons of our Church and farther Enforced under several Penalties by the Statutes of 2. 3. Ed. 6. c. 19. 5. 6. Ed. 6. c. 3. 5. Eliz. c. 5. In the first there is a Saving to such as shall be Licensed by the King which if it be intended of Licenses to particular Persons will not concern the present poynt in the second there is no saving In the third there is a particular saving limited and restrained to particular Cases and Conditions as to Licenses All these Laws are Generally Dispensed with by the King 's General Dispensation by his Proclamation and this is admitted to be Legal by the Admittance of our present Parliament and of all our Ecclesiasticks Judges Lawyers and the whole Kingdom in General by an Universal Admittance not question'd or complained of by any Thirdly As to the close of the Objection which pretends That the Allowance of this Right to the King will in a great measure render Parliaments Useless The Answer is First our Law-Books speak not of Licenses or Dispensations general or particular by Parliament but by the King the King 's Right is to Dispense the Parliament to Repeal Secondly It is for the Ease of the Kingdom that the Constitution of the Government is thus For the necessity of Dispensations in several Cases where our Penal Laws are so numerous requires that the Power of Dispensing with Penal Laws should be in some Person or Persons always visible and in being which cannot be a Parliament without a vast Expence and Inconveniency to the Kingdom who are by the Constitution of our Government to bear the Charges and allow Wages to the Members Chosen and sent by them to Sit in Parliament And therefore it is That our Law puts the Power of Dispensations which are but Temporary in the King That the Total Repealing if necessary may attend the calling and meeting of a Parliament when other weighty Affairs shall require a Parliament to be called It would be intollerable to trouble the Kingdom with the calling of Parliaments so often as there is occasion for Publick Good to Suspend the Execution of a Penal Law in the mean time the Publick cannot suffer in regard the Law hath well provided for it by putting this Power in the King. So that Parliaments continue still to be useful notstithstanding this Power be in the King. And this Power being in the King by the Constitution of our Government which hath placed the power of Repealing Laws in the Parliament as it would render Parliaments useless to put the Legislative Power in the King solely which is of the Essence of a Parliament So to put those Powers into a Parliament which are of the Essence of King would render our King useless Our Government hath long continued and subsisted happily by the several and distinct Exercises apart by our Kings and Parliaments of their several and distinct proper and essential Rights peculiar to each other And when either shall usurp upon the other our whole Government and Laws must be destroyed and let the Objectors Judge whether that would endanger our Liberties and Properties Object XIII If this Right and the Powers of the Militia and of Peace and War and of making Leagues were to be Exercised only by his now Majesty the Kingdom would not think it self unsafe by entrusting him But to have this Power and those others inherent in the Crown which may descend to One who may be a Tyrant or of a Religion contrary to what we now Profess may be destructive to our Religion and Laws And therefore if our Laws do vest these Powers in the Crown as is insisted these Laws are thus far defective and ought to be altered These Powers not being fit to be Exercised but by Parliament only and to be vested in the Parliament Answ I. This Objection upon pretence of Securing our Religion labours to make it odious by proposing to make us violate all those Oaths which oblige us to be True and Faithful to the King his Lawful Heirs and Successors without any Reservations or Conditions in relation to the good Government or Religion of such Lawful Heirs So that in Effect it proposes to us to break Faith with the Heirs of the Crown when ever we shall judge them to be Tyrants or Hereticks and to become Rebels in order to the Defence or Security of the True Religion which Principles our Religion professeth to abhor Secondly This Objection also tends to put us into a perpetual state of War and Blood into a desperate hazarding of our Estates Lives Laws Liberties Country and Religion upon a Pretence of endeavouring to secure our Religion and Laws That these must be the Consequences is unavoidable For if it should be supposed that his now Majesty to gratifie the present Objectors and to prevent the objected Dangers which are pretended may in possibility happen from these Powers resting in the Crown should agree to depart as much as in him lyeth with so much of his Crown as is here desired and after that even with his whole Crown And that thereupon the whole frame of our Government should be Altered as far as the wit of man can contrive to Alter the same yet there can be no Security but that his Majesty may repent and endeavour by Force or otherwise to retrieve all that is thus departed with If he attempt this by Force there must be necessarily a War which proves the Truth of what is here Answered If he can do it without War he will not want a President to Warrant his Repealing all such Alterations by his Letters-Patent The Case is cited by Rolle Tit. Prerogative le Roy. fol. 165. where he says That in the Statutes at large 15. Edw. 3. The King revokes by his Letters Patent with the Assent of his Earls Barons and other wise Men of his Realm certain Statutes made before in the same Year Because they were contrary to the Customs of the Realm and his Prerogative Royal and Assented to by him by Dissimulation in Case of necessity And saith Rolle those Statutes have been reputed as Repealed ever since The Letters Patent by which these Statutes were thus Repealed are Printed in the Statutes at Large in Anno 15. Edw. 3. a Copy of which is at the end of this Answer to this Objection Wherefore the Dangers from his now Majsties repenting will prompt the Objectors to farther and worse Fears not to be removed untill his Majestie and all who may be feared within the Kingdom be put into such a condition as to cease to be Objects of Fear And yet when this is done The Dangers are not past For Rex nunquam moritur nec mori potest The King of England in his Politick Capacity is as Immortal as the World. We shall but make our Selves a Prey to that Neighbouring Prince who is Strongest and the Strongest Prince will certainly make himself an Undoubted Title to the Crown of England let his Religion or Temper be what it will. For if England could not subsist a Republick when it had Holland to Assist it It cannot be but That the Crown of England will have an Heir now Holland is disabled from Abetting any Change of Government The Copy of the Letters Patent EDWARD by the Grace of God c. To the Sheriff of Lincoln Greeting WHereas att our Parliament summoned att Westminster in the xv of Eastter last past certain Articles expressly contrary to the Laws and Customes of our Realme of England and to our Prerogatives and Rights Royal were pretended to be Granted by us by the manner of a Statute we considering how that by the bond of our Oath wee be tied to the observance and defence of such Laws Customes Rights and Prerogatives and providently willing to revoake such things to their own State which be soe improvidently done upon conference and treatise thereupon had with the Earles Barons and other wise men of our said Realme and because we never consented to the makeing of the said Statute but as then it behoved us we dissimuled in the premisses by protestations of revocation of the said Statute if indeed it should proceed to eschew the dangers which by the denyeing of the same we feared to come forasmuch as the said Parliameet otherwise had been without dispatching any thing in discord dissolved and soe our earnest business had likely been ruinated which God prohibit And the said pretended Statute we promised then to be sealed It seemed to the said Earls Barons and other wise men that sithence the Statute did not of our free will proceed the same be void and ought not to have the name nor strength of a Statute And therefore by their counsel and assent wee have decreed the said Statute to be void and the same in as much as it proceeded of deed we have agreed to be adnulled willing nevertheless that the Articles contained in the said pretended Statute which by other of our Statutes or of our Pregenitors Kings of England have been approved shall according to the form of the said Statute in every point as convenient is be observed And the same we do only to the conservation and reintegration of the rights of our Crown as we be bound and not that we should in any wise grieve or oppress our Subjects whom we desire to rule by lenity and gentleness And therefore we do command thee that all these things thou cause to be openly proclaimed in such places within thy Bailiwick where thou shalt see expedient Witness my self at Westminster the first day of October the fifteenth year of our Reign FINIS
Arms many in England who are willing to Assist the King in this Exigency dare not bear Arms because they cannot comply with what the aforesaid Law requires Many who can comply with this Law refuse to comply and consequently pretend they cannot comply and therefore that they dare not bear Arms. But their true Reason is That they know they can have no Toleration in the business of Religion secured unto them by the King And they hope the Enemy if they overcome will for their own Interest at least make good their Promise The rest of the Nation are not able to Defend the Kingdom Now it is demanded of the Judges May the King in this Exigency Dispense with this Law and suspend all the Penal Laws in cases of Religion And hath the King a Right to do this If he cannot Then clearly the Crown and Kingdom must be Lost because our Law is in so great a Point defective If the King hath Right to do this tho' no part of the Penalty be by this Law to the King but all to the Informer Then put the same Case yet farther And suppose the Malum Prohibitum in this Law were by this Law adjudged and declared to be a common Nusance Nay suppose it were adjudged to be Felony or High Treason Hath the King in such Case a Right to Dispense and is not the King the sole Judge in this Case of the Necessity and of the Publick Good Or is the King to Call a Parliament of necessity to judge in the Point and so hazard the Ruin of the whole in expecting the meeting of a Parliament Or must he Consult the Judges and be bound by their Opinions in so great an Affair of State Necessity and the Publick-Safety It is conceived the Resolution of this Case will put an end to the whole Doubt Against these Affirmatives several Objections are usually made which are Answer'd thus Object I. That the King by his Coronation Oath and by several Promises hath pleased to bind himself to maintain all the Laws And since all men agree That Almighty God can bind himself by his Promises it is unreasonable to say the King cannot bind himself Answ I. This Objection if it proves any thing proves too much for it is as strong to take away the King's Power of Pardoning or of Dispensing with a Penal Law as to a particular person as to take away his Power of Dispensing in general But the Objectors Grant That the King hath the former Power inherent in him notwithstanding these Promises and Oath and that no Construction shall be made of them to bar him from Pardoning or from Dispensing with particular Persons therefore no Construction shall be made of them to Bar him from Dispensing generally Secondly There is no Construction to be made of any Promise of God to bind his Divine Majesty to cease to be Good and Merciful Because those Attributes are of his Essence and such a Promise would amount to a Promise to cease to be God which God cannot cease to be and therefore cannot be intended to bind himself to cease to be So neither shall any Construction be made of any Oath or Promise of the King to bind the King to cease to have the Power of Mercy because it is of the Essence of the King And it would amount to a binding himself to cease to be King which he cannot bind himself to cease to be Thirdly This Right of Dispensation is a Law in its self and so necessary and fundamental a Law in order to the Publick Good That without it and without the Exercise of it when the Common Good requires it to be Exercised The Kingdom cannot be and the King's Prerogative is Law. Therefore the King's Oath and Promises to maintain the Laws bind him to maintain and exercise this Right And to put such a Construction upon the said Oath and Promises as should bind the King not to use this Right were to bind the King to Break and to Violate the Laws and to neglect the Safety of the Kingdom Nay for the King not to exercise this Right would be to Violate his Oath and Promises and to break the Trust reposed in him by the whole Realm when they make a Law and entrust him with it as the Fountain of Mercy and Head of the Publick Good And to frustrate the Chief End of all our Laws Fourthly The Objection is therefore grounded upon a mistake of the Question For no man will or dares say That the King is bound to enforce the Execution of a Penal Law to the prejudice of the whole Kingdom or of a very notable considerable part of it Object II. That all the Judges and all who are in the Commission of the Peace are Sworn to put the Laws in Execution But if the King shall be said to have this Power he shall have it in his Power to make all these Perjur'd Answ I. This Objection as the former makes as much against the King's Power of Dispensing as to particular persons as against the Power now affirmed and so it fights against the Objectors allowed Opinion and proves nothing Secondly The Right and Prerogative in dispute is a Law so they are bound by their Oaths to submit to it and maintain it Thirdly A Dispensation in our Case is in the nature of a Temporary Repeal of a Law for it is a laying it to Sleep for a time in a Legal way consequently there is no more Obligation from the Oath objected to put a Law in Execution during the Time that the Execution thereof is by a Dispensation Legally Suspended then there is to put a Law in Execution after it is Repealed And to do either would be against the Oath objected because it would be to Act against Law. And if this be denyed it were worthy Enquiry Why the Judges who are bound by Oath as is objected and who sometimes affirm themselves obliged by Oath to give the Laws in Charge in their Circuits do nevertheless forbear to give in Charge or put in Execution several Obsolete and Antiquated Laws which have never been actually Repealed by the Legislative Power but only Suspended by the Act or by Allowance of our Kings who might have enforced the Execution of them if they had pleased and by the Consent and tacite Agreement of our Judges and whole Kingdom taken to be suspended Object III. If this Power be allowed to be in the King he may by Virtue of it Suspend all our Laws and even Magna Charta it self and then farewell all our Liberties and Properties Answ If this Objection be not grounded upon a Mistake of the Question it signifies nothing the Right asserted is a Righr of Dispensation Publick Necessity and Publick Good requiring it It is proved by the Fifth Ground before laid and the Instances urged to prove that Ground That Magna Charta hath been and may be Suspended by this Right when Publick Good requires such Suspension And what matter is
in the same Parliament thereby intending to make the said Earl either to retract or to forbear prosecution of his Charge against the said Duke or to invalidate his Testimony And true it is that the Fifth Article of the Charge against the said Earl was That he Counsell'd and perswaded King James to Grant and to allow unto the Papists free Toleration and Silencing of all the Laws made and standing in force against them The Charge is not That he Counsell'd the King to Grant a Publick and Free Toleration But to Dispense with the Laws For Toleration and Dispensation import no more than a permission to Exercise their Religion in their private Houses and to Suspend the Execution of the Laws there mention'd for a Time. All which the said King had power in pursuance of a Treaty and Articles between Crowns upon the breach or performance of which Peace or War Common-Good or Publick-Prejudice depend to do But to Counsel a free Toleration imports an Allowance of Publick Worship which as Affairs then stood here could not consist with Publick Peace The Temper of this Nation not enduring it nor could the Papists have been secured from the Rage of the People in the Enjoyment of it And the Silencing of the Laws might import a Total Repeal of them which the King did not Claim a Right to do of himself So that this comes not to our Poynt in Question This Lord was not Impeached by Parliament nor by any appearing Concurrence of Judges nor for Advising the King to Dispense with any Penal Law for Publick-Good or where Necessity required But there is yet something more in this Case of the Earl of Bristol The whole Story is told at large by Mr. Rushworth in the Book before cited And it had this farther in it viz. That when the Impeachment was brought into the Lords House the Earl of Bristol put in his Answer to it and as to this particular Article he first denyed positively That he had Counsell'd any thing in the matter charged And then he declared fully what was done and set forth at large the matters of Fact before-mention'd as well as to what was Signed by King James and his Late Majesty King Charles the First as also the Declaration Signed by the Lord Conway by King James his Order So that in this Case there are these things worthy observation to the present purpose First That it is not probable but that the said Duke of Buckingham being the then Greatest Minister of State and Favourit to King James did Advise in all things which then passed in that Affair and particularly in the Declaration Signed by the Lord Conway But touching the Lord Conway's Signing a Declaration there can be no question Secondly That the said Earl wanted neither Wit Will nor Courage to Charge the said Duke as far and with Crimes as distastful as he could find any wherewith to Charge And that he was not fond of nor any ways obliged to spare the Person of the Lord Conway who was the Duke's Friend and must have been the Duke's most material Wittness to save him in Case the Charge against the Duke had been prosecuted Thirdly That the Parliament then sitting was as diligent in Enquiring into Misdemeanors as much displeased with the Duke of Buckingham as little tender of the Lord Conway as Secretary of State and much inclined to Enquire in relation to the too much Advancing and Stretching the King's Prerogative to the prejudice of the Subject and against the known Laws as peradventure any Parliament that ever Sett in England yet neither did Parliament nor this Earl of Bristol Charge any thing against this Duke or Exhibite any Impeachment against the said Lord Conway for Advising to Dispense with Penal Laws nor did this Parliament any way appear to prosecute the said Earl of Bristol upon this Impeachment Exhibited against him though he was thereby particularly Charged for thus Advising This seems a very probable Argument at least to prove that both the Earl of Bristol and this Parliament did Believe the King to have this Right which is here Asserted Object IX That King James when he Treated in Relation to the Match with Spain being demanded to Suspend the Execution of the Penal Laws then in force against the Papists was pleased to Answer That it was not in his Power so to do without a Parliament Answ This whole Objection is most certainly a mistake For it is evidently proved before what Opinion King James had and how well he was satisfied with and understood his Right in the point of Dispensations And how Wise and Knowing a Prince he was all Man-kind is satisfied Therefore if any thing were demanded of that King in that Treaty to which his Majesty gave any such Answer as is here Objected The demand did certainly Extend so far as to require a Total Silencing and Repealing of those Laws In which Case his Majesties Answer was most certainly True. But to suppose that King to have given this Answer where the Question or Demand was only touching a Suspension of Laws and then afterwards to have offer'd and promised a Suspension of the same Laws under his Great Seal would be with the highest Folly Self-contradiction and want of Sincerity imaginable Object X. That his now Majesty in a Speech heretofore made by him in this present Parliament did by implication agree that he had not by wishing that he had such Power as is now insisted on And when afterwards his Majesty by Advice took upon him to Exercise this Power he did again upon further Advice wave the same Answ I. This as well as the other Objections in the Case of King James if they were granted as far as the Objections can be put Nay if the Cases were That King James had and his now Majesty also past Acts of Parliament express in the point to bar themselves and the Crown of this Right the same must be only intended as to the ordinary Exercise of that Right But not of the Extraordinary Exercise thereof when the Publick Good requires the same should be Exercised which is proved by the Grounds before layd Secondly And that his Majesties proceedings are to be thus intended and not otherwise is proved by the continual Exercise of that Power in the Cases of Suspensions of Penal Laws suspended by the King 's sole Power and the Suspensions never Question'd never Complain'd of but still submitted unto and admitted as Legal namely those touching Navigation touching Importation of French-Wines and touching The Breadth of Cart-Wheels If the King had been really perswaded into a real Belief by the mistaken Advice of the Earl of Clarendon whose Opinion in Law was never esteemed of Venerable Authority at the time of his Speaking which is Objected It is clear by his Majesties Practice since that he hath found cause to alter that Belief And if his Majesty for Reasons best known to his Royal Self hath in one particular Case waved the
though it be true That the Judges in all Ages were and are the King's Council Learned And the Kings of England have always Claimed and Exercised this Right undoubtedly they would not have done this if their Judges had plainly told them That it was against Law or that the thing had not been clear in its own nature And if there were no Judgments in the Case mention'd in our Law-Books when the thing hath been so constantly practised it rather seems clear That it was so undoubtedly the King 's Right That no Person in any Age ever thought it a Point fit to contest upon or to put it to the Judgment of a Court. There is no dispute but that there have been many Parliaments in former times who have attempted to tear many Prerogatives from the Crown taking advantage of the Wants or Weakness of our Kings And it is as certain that the Generality of our Judges in all Ages have more enclined to lessen the King's Prerogative then to deprive the People of their Liberties either as thinking their own Interest concerned therein as Subjects or as inclining rather to an Aristocracy then to a Monarchy or rather and which is the most probable upon the account of fear of being question'd by Parliaments knowing well that whenever they did pinch hard upon the Prerogative Royal the Kings were generally Merciful in their own natures or might be prevailed upon by their Courtiers to pardon and pass by it and that it was never to be dispaired but that a way might be found to pacifie the displeasure of the Prince who was but one Man and who had no way to punish but only by displacing which was seldome done for an Error of a Man's Judgment But that whenever they happened to fall under the displeasure of a Parliament upon any jealousie of advancing the King's Prerogative too high the Excuses of Human Frailty and of Erring though a real and involuntary mistake did as seldome procure their Pardon as a like pretence would preserve a Person from the punishment of the Law who should stand Indicted before themselves For Courts are not single persons nor is it reasonable they should be their Constitutions being to take care that Justice should be Executed In Terrorem without Favour or Affection knowing that Mercy floweth by the Constitution of our Laws from another Fountain This is said supposing the Objection were True. But Secondly The Objection is before proved to be most untrue by the instances put of the Judgments given touching the Dispensing with Magna Charta Coke lib. 12. fol. 33.34 The Judgment given in 2 H. 7. fol. 6. agreed in Calvin's Case Coke lib. 7. fol. 14. and the Case of Licensing Coyning 11. H. 7. fol. 11. Object VIII That several Privy Counsellors and Great Men in former Times and particularly Cardinal Wolsey and the late Earl of Bristol have been impeached by the Concurrence of our most Learned Judges for Advising the Kings of this Realm to Dispense with Penal Laws Answ I. It is no Dishonour to Parliaments to say that all Impeachments even by Parliaments are not always just and well-grounded though judged to be so at the time when they are framed an instance may be given in the deplorable Case of the Late Noble Earl of Strafford Impeached and Attainted unhappily by a Parliament and that Attainder most happily and justly Repeal'd by this present Parliament Therefore if it could be proved That any Minister of State had at any time been impeached by a Parliament for Advising any of our Kings to Exercise the Right now asserted it would no way prove That our Kings had no such Right by our Laws Secondly But there can be no President shown of any Impeachment against any one Person in any Age by any Parliament or any other Just and Legal Authority for Advising any of our Kings to Dispense with any one or more of our Penal Laws for the Publick Good or in any Case where Publick Advantage or Necessity required such Dispensation Thirdly As to the Cases urged in the Objection they are not to the Point in Question The first of Cardinal Wolsey was as to Licenses That he granted Licenses under the Great Seal being Chancellor for Exporting Goods prohibited by Law for Advantage to himself and his Servants without the King 's Warrunt or Knowledge Coke Jurisdiction of Courts Tit. Chancery foll 90. This in truth was a Grievous Crime to grant Licenses under the Great Seal for Dispensing with Penal Laws without the King's Warrant or Knowledge But this very Charge implyes That this had been no Offence if he had been Authorized by the King's Warrant to Seal such Licenses And every Merchant knows That nothing is more in practice then for the King in special Cases to License the Exporting of Goods prohibited by particular Laws to be ordinarily Exported The Case of the late Earl of Bristol is as far from the Point as the former The Case was thus That Lord had been imployed by King James as his Majesties Ambassador in Spain to Treat touching the Marriage with the then Infanta the King of Spain being Zealous for the Religion of the Church of Rome insisted in the said Treaty to procure some favours for the English Roman-Catholicks The first Proposals as to the matter of Religion related no farther then to a Freedom of Religion for the Infanta and her Servants the Children of the Marriage and her Ecclesiasticks and Religious This could not be without the King 's particular Licenses This the King assented to Rushworth's Historical Collections fol. 4. The King agreeing thus far and the Treaty being prolongued by many Artificial delays The King of Spain urged farther in favour of the English Roman-Catholicks in general But the form and way to be left to his Majesties Wisdom and Clemency that the Mercy mmight be Acknowledged to come from his Majesty To this the said King James and his Late Majesty both Signed Rushworth fol. 287. And after all this King James for farther Satisfaction in this matter did by the Lord Conway his Majesties Secretary of State by a particular Declaration in writing Signed by the said Lord Conway and Dated Aug. 7. 1623. Declare and Engage That his said Majesty would cause a present Suspension under his Majesties Great Seal of all those Penal Laws Charges and Forfeitures whereunto the Roman-Catholick Subjects of his Majesty had thentofore been subject and in the same Grant and under the same Seal to give a Dispensation and Toleration to all the Roman-Catholicks His Majesties Subjects as well Priests as Temporal Persons c. Rushworth fol. 288.289 The Marriage not taking effect and Animosities and Feuds happening between the then Duke of Buckingham and the said Earl of Bristol the said Earl after that King's Death in Parliament impeached and wrought with the House of Commons to Impeach the said Duke And the said Duke prevailed with his then Majesty first to Exhibite an Impeachment against the said Earl