THE LORD CHIEF JUSTICE Herbert's ACCOUNT EXAMIN'D.

By W. A. Barrister at Law.

Wherein it is shewn, That those Authorities in Law, whereby he would excuse his Judgment in Sir Edward Hales his Case, are very un­fairly cited, and as ill applied.

Vendidit hic auro patriam, Dominumque potentem
Imposuit, leges fixit pretio, atque refixit.

LONDON, Printed for J. Robinson at the Golden Lion in St. Paul's Church-yard, and Mat. Wotton at the Three Daggers in Fleetstreet. 1689.

THE Lord Chief Justice HERBERT's ACCOUNT EXAMIN'D.

WEre it not the Reproach of our Times, to have had Men ad­vanc'd to Courts of Judica­ture, for other Merits, besides Integri­ty, and Learning in the Laws of their Coun­try; it might seem a great piece of Vanity in me, to answer a Book stamp'd with the Name, and Authority of a Chief Justice.

Yet, perhaps, I might be thought not without cause to take this as my more immediate Pro­vince; having been the first of the Profession, who ventur'd in Publick Companies to shew, how wofully that innocent Book-Case 2 H. 7. in relation to Sheriffs, has been mistook, or wrest­ed, to serve for Colour to that hasty Judgment in Sir Edward Hales his feigned Case.

Wherefore, how needful soever the Chief Ju­stice [Page 2] may find it, to make Protestations of his Sincerity;Vid. Account, p. 1. this may supersede any such from me. Nor would I willingly call his a Protestation contrary to apparent Fact (especially consider­ing that weakness of Judgment manifested by this Defence) did he not give too great occasion for it: 1. From the large Steps which he took, to precipitate, and, as I am well assured, to sol­licit that Resolution. 2. The manner in which he delivered it, widely differing from what he now prints. 3. The unfairness of his present Quotations: And, 4. The unhappiness, not to say worse, of those Instances which he is pleased to give of his Sincerity.

I shall not dispute, or repeat his Lordships State of the Case: But the Question upon it being, Whether the King may by his Preroga­tive dispense with the Statute 25 Car. 2. c. 2. re­quiring all Persons in any Office under the King to take the Test against Popery, I shall enquire,

1. Whether those Books, which he relies on as Authorities for his Judgment, give any colour to it.

2. Whether, admit they did, they would coun­tenance the Resolution as he delivered it.

3. Whether those Instances which he offers of his Sincerity, may reasonably be taken for such.

4. Whether he in any measure clears himself [Page 3] from the Imputation of being highly criminal.

His Lordship, like a Master-Disputant, be­gins, as he thinks,Account, p. 6. with a Definition of a Dispensa­tion, which, he says, is given by the Lord Cook: Cook 11 Rep. f. 88. Dispensatio mali prohibiti est de jure Domino Regi concessa, propter impossibilitatem praevidendi de omni­bus particularibus; & dispensatio est mali prohibiti provida relaxatio, utilitate, seu necessitate pensatâ.

Where, I must say, he very unlearnedly clogs the Definition of a Dispensing Power, with the Person in whom 'tis suppos'd to be lodg'd; nay, and the Reason too why it should be so, which neither the Lord Cook, nor Common Sense, gives him any Warrant to bring into the Definition. However, it seems, according to this, a Dispen­sing Power, in some Case or other, is vested in the King; which yet is far from proving any thing to his purpose; for either the King may in all Cases dispense as to particular Persons, and then his Distinction of malum prohibitum, V. p. 7. & 8. & malum in se, falls to the ground; or else it reaches only to those Cases, in which the Judgment, or Flattery of Judges have ascrib'd it to him.

He adds out of the Lord Cook, P. 6. 11 Rep. f. 88. as an En­largement upon what he calls the Definition: ‘Inasmuch as an Act of Parliament, which generally prohibits any thing upon a Penalty that is POPU­LAR, OR ONLY GIVEN TO THE [Page 4] KING, may be inconvenient to divers particular Persons, in respect of Person, Time, or Place; for this purpose the Law gives a Power to the King to dispense with particular Persons.’ Where the Lord Cook manifestly restrains the Penalty, to such as is given the King as Head of the Peo­ple, upon which account only he calls it Popu­lar; nor, indeed, can be thought to take in what is granted to any Subject that will inform, it being mention [...]d without distinction whether before, or after an Information commenced.

7 Rep. f. 36.And that the Lord Cook's Words here, ought not to be strained farther, is yet more evident, from the Case of Penal Statutes, on which Sir Edward Herbert's Misrepresentations will occasi­on my more particular Remarks.

As Sir Edward, considering what Interest he has serv'd, may be presum'd something conver­sant with Priests and Jesuits, He might, among others of less use, have consulted the Learned Suarez, Suarez de Le­gibus, lib. 6. cap. 10. f. 384. who after the Definition, which he makes to be Legis humanae relaxatio, in a distinct Chapter shews, with whom the ordinary Pow­er of Dispensing (which he distinguishes from that which is delegated) is lodged, where he says,Ib. cap. 14. f. 395. Certum est eum habere ordinariam potestatem dispensandi, qui legem tulit: And he gives the Reason, Quia ab ejus voluntate, & potentiâ pendet. [Page 5] So that none can have this power, but he, or they who are vested with the Legislative exclu­sive of others; or such as have it delegated from thence.V. Jus Angl. ab Antiquo & Jani Angl. fa. nov. That the King has not the Legislative exclusive of others, is what I have formerly prov'd at large, and it lies on the other side to shew that the Dispencing Power bas been dele­gated to him. Yet thus much may be said on the contrary.

1st. That the King could not in Law be presum'd to have exercis'd such a Power by himself; for that the ancient Law provided, that he should have a Counsel chose in Parliament, who (as the Charter affim'd to be declaratory of the ancient Law, and sworn at the Corona­tion of Hen. 3. has it) were sworn quod negotia Domini Regis & Regni fideliter tractabunt, Vid. Mat. Par. de Anno 28. H. 3. So Rot. Pat. 42, H. 3. m. 4. m. 10. V. Jan. An. fa. Nov. p. 244. Rot. Par. 4. E. 3. & si­ne acceptatione personarum omnibus justitiam exhibe­bunt: and that it was accounted the Law long after that, appears by the impeachment of Ro­ger Mortimer 4o. E. 3. part of which was, that Whereas it was ordain'd in the Parliament next after the Kings Coronation, that four Bishops, four Earls and four Barons should stand by the King PUR LUY COUNSEILLER, without whose assent NUL GROS BUSOIGN NE SE FEUST. Nevertheless Mortimer would un­dertake to manage all by himself, accroaching [Page 6] Royal Power, Vid Rot. Par. 5. E. 2. Ry­ley pl. parl. f. 317. Rot. Par. 8. E. 2. n. 35. 4. E. 3. n. 16. 17. E. 3. n. 12. Walsing­ham fol. 243. Vid. Knighton the 1st. Art. against R. 2. f. 2747. Vid. etiam 5. H. 4. n. 37. 11. H. 4. n. 15. 1. H. 6. n 16.24.30. 11. H. 6. n. 17. 31. H. 6. n. 38. V. Roles Ab. 2. part. 179. Mat. Par. ed. Tig. f. 784. V. Math. Pa­ris f. 827. ille­pidum. and it is easily to be shewn that such a Counsel was in use, or continually insisted on, as the right of the Kingdom, from the time of the Charter, confirm [...]d 28. Hen. 3. till the end of the Reign of Hen. 6.

2. A Power to grant Non obstantes to Statutes could not have been a right in the Crown at Common Law; for we have clear Proofs of its odious and condemn'd beginning, from the sulpureous Fountain of Rome, as an honest Po­pish Lawyer confest with a deep sigh. 35 Hen. 3. this Non obstante Matthew Paris calls a detesta­ble addition, against all Reason and Justice; and when the year after King Henry urg'd the ex­ample of the Pope for Non obstantes: The Pri­or of Jerusalem says, God forbid you should use this unpleasant, and absurd word; as long as you observe Justice you may be King, and as soon as you violate it, you will cease to be King. Which shews how little Foundation in Law it then was thought to have; and what the whole Nation thought of the Pope's use of it, may be seen at large in Matthew Paris, Prin's Ani­mad. f. 129.130. V. etiam Sir John Davis his Rep. f. 69. b. and Mr. Prin's Animad­versions on the 4th. Institute.

Farther the Reasons given why the King ought to have this Power, fail here upon many accounts.

[Page 7]1. In that the Interest of the whole, of which the Legislators are the best Judges, when they make the Law without Exception, ought to outweigh all private Inconveniences.

2. The Law has provided a more certain, and equal Remedy; having taken as sufficient Care for the meeting of Parliaments once a Year at least, and, I may say, Vid. Mod. ten. Parl. Parliamentum separari non Debet dum­modo aliqua Petitio pen­deat indiscus­sa vel ad Mi­nus ad quam non suit determinatum responsum & si Rex contrarium permittat perjurius est. As I find it in an ancient MS. of the Modus. Vid. etiam 4 Inst. f. 11. Vid. 50 E. 3. n. 177, 178. 1 R. 2.95. This acknowledg'd for Law in the King's Name, 2 R. 2. n. 4. sitting too, as it has for the sitting of the Common Courts of Justice; as appears from the several Statutes in Print, and others in the Rolls, which avoid the common Cavil upon the words Oftner if need be.

And these were, like the famous Triennial Act, Provisions for the greater certainty of meeting so often at least; but no Recessions from the old Law, which, as appears both by the Mirrour, and the Life of King Alfred, Vid. Spelm. Vit. Aelfredi, f. 115. Mirrour, p. 282. Where 'tis plac'd among the Abuses of the Law, That Parliaments are not held twice a year. was for the Great Council to meet twice a year at London.

3. The great Reason assign'd in the Latin Quotation from the Lord Cook, Propter impossi­bilitatem praevidendi de omnibus particularibus, which is after distinguish'd, as to Person, Time, and [Page 8] Place; can by no means be applied to the Case in question: For, 1. The Law was made but very few Years before their Lordships Resoluti­on, and not grown more inconvenient by length of time to any particular Person, than it was at the making of the Act. 2. The Law-ma­kers had in their immediate prospect every par­ticular Person of the Romish Communion, and the Time when, and Place where, the Danger would happen, if any such were Commissioned.

Let us now see what help he can have from his second Quotation from the Lord Cook, which is 7 Rep. f. 73. but he intends, I suppose, f. 37. and would have it believ'd, that it was the Opi­nion of all the Judges of England, 2 Jac. 1. That the King may dispense with any particular Per­son, that he shall not incur the Penalty of the Statute,Account, p. 7. tho' it be an Act made pro bono publico, and that this is a Trust and Confidence inseparably annex'd to the Royal Person of the King, in which, 1. He again overthrows his Distinction of ma­lum in se and prohibitum, making that Power at large in relation in any Statute pro bono publico. 2. He manifestly perverts the Lord Cook's sense, whose Words are,7 Rep. f. 36. ‘When a Statute is made pro bono publico, and the King as Head of the Commonwealth, and the Fountain of Justice and Mercy, is by all the Realm trusted with it; this [Page 9] is a Trust and Confidence inseparably adjoyn'd, and annex'd to his Royal Person, in so high a Point of Sovereignty, that he cannot transfer it to the dispo­sition or power of any private Person, or to any private Use; for this was committed to the King by all his Subjects, for the Publick Good, &c. But true it is, that the King can upon any cause moving him, in respect of Time, Place, or Person, &c. make a Non obstante to dispense with any parti­cular Person, that he shall not incur the Penalty of the Statute.’

Where the sole Question was, of transferring over a Penalty granted to the King, as entrusted by all the Realm to see the Statute put in exe­cution, by inflicting the Penalty: This Trust is adjudged inseparable, and not to be transferr'd over; but that however, the King may dispense with the Penalty granted to himself. Upon which I must say our Chief Justice has made a very foul Stretch; for what is this to the Infor­mer's Part, concerning which the Question be­fore him was? But surely there is a mighty difference between these two Propositions. ‘Where the Subjects have entrusted the King with a Statute made for the Publick Good, this Trust is inseparable, and cannot be trans­ferr'd to another; but the Statute so entrusted may be dispens'd with; which is all that is to be [Page 10] gather'd from the Lord Cook:’ and this, ‘Tho' an Act be made for the Publick Good, yet the King may dispense with it, and this is a Trust and Confidence inseparably annex'd to the Royal Person of the King;’ which is Sir Edward Her­bert's perverse Comment. In short, Lord Cook says, ‘Where the King is entrusted with the Execution of a Statute made for the Publick Good, he may dispense with that Statute.’ Sir Edward Herbert says, ‘He may dispense with any Statute made for the Publick Good.’ Up­on which 'tis to be observ'd, That the Question in the Lord Cook was not of Dispensing, but granting over the Penalty; which Penalty, he says, is not to be transferred over: The other would make it of Dispensing, and that that Power is inseparable, and not to be transferr'd; so apparently changes the State of the Que­stion.

His next Step is to the Year-book of H. 7. f. 11, & 12. in which he leaves us to seek the Year, which is 11. This he calls the first, and great Case which he cites, wherein the King's Dispen­sing Power is described and limited.

Account, p. 7. ‘There is a diversity, says the Book, be­tween malum prohibitum, and malum in se; as a Statute forbids any Man to coin Money, and if he does, he shall be hang'd, this is malum [Page 11] prohibitum; for before the Statute, Coining Money was lawful, but now it is not so, and therefore the King can dispense with it. So if a Man ship Wooll in any place but Calice, it is malum prohibitum, because it is prohibited by Act of Parliament: But that which is malum in se, the King, nor no other Person can di­spense with; as if the King would give a Man power to kill another, or license one to make a Nusance in a High-way, this were void; and yet the King can pardon these things when they are done.’ Upon this Case 'tis observable, That the Power of Dispensing is here asserted in relation to Things, and not Persons: Wherefore according to this, taken in Sir Edward Herbert's Latitude, the King may grant Dispensations to all in general, where the Matter is only malum prohibitum; whereas he himself owns that the nature of a Dispensation is particular, and given to particular Persons by name. Pag. 7. 2. Many things in Magna Charta, nay the most, are but mala prohibita; and so Magna Charta its self may be dispensed with: when he himself owns,Pag. 28. that the King cannot dispense with one Tittle of Magna Charta: And methinks he could not but observe this Contradiction. Where­fore the Rule there, admit it were a Judgment in Law, as it was not, being onely spoken obi­ter [Page 12] by one of the Judges,Chief Justice Fineux, 11 H. 7. f. 12. a. can be applied onely to such Cases as are there cited. The first is that of Coining Money, which goes upon the ground in Moor's Reports, Moor Rep. f. 714. Indeed the Book spsaks al­so of dispensing with Statutes restraining the Prerogative; but that con­cerns not the Instances here of things for­bid the Sub­ject for the li­mitation of that Power. Vid. infra. where 'tis said, that such Statutes as give a Prerogative may be dispens'd with: and that of shipping Woolls at Calice, the King's Staple, is of the same nature; and both sufficiently shew the Distinction of malum pro­hibitum, from malum in se, to relate barely to such things as become evil by accident, as they are against an accidental Prerogative. Which no way interferes with the Rights of the Subjects in general, or particular.

And I much wonder that Sir Edward Herbert should cite my Lord Vaughan in the Case of Tho­mas and Sorrel, as confirming what he would in­fer from the Year-Book, when Lord Vaughan says,F. 332. That old Rule has more confounded Mens Judg­ments on the Subject,F. 333.than rectified them; and him­self denies that the King can dispense with every malum prohibitum by Statute, tho' prohibited by Sta­tute onely.

Oh, but my Lord Vaughan shews, that a Di­spensation does jus dare, and makes the thing prohibited to all others, lawful to be done by him that has it. Does he say this of every malum prohibitum? By no means: Wherefore we must apply it to the Case then in question, which [Page 13] concerned Wine-Licences, about which the King had a Prerogative by Statute-Law: And the di­spensing with that, falls within the Rule in Moor;Sup. f. 714. agreeing with the Lord Coke in the Case of Penal Statutes. 7 Rep. f. 36. b. Yet even thus much was a Point gain'd by the Prerogative, since the first of H. 7. for it is then made a Doubt before all the Judges of England in the Exchequer Chamber, and ad­journed over for the difficulty,1 H. 7. f. 2. b. & 3. [...]. Whether the King could license the Shipping Woolls elsewhere than at Calice; one of the very Instances which Sir Edward Herbert relies on: And Chief-Justice Hussey was positive, that the King could not li­cense it, tho' indeed the Chief-Baron and some others held as Fineux did afterwards. Where­fore no body of less assurance than our Chief-Justice can say from these Cases results this plain Syllogism.

Whatever is not prohibited by the Law of God, P. 8, & 9. but was lawful before any Act of Parliament made to forbid it, the King by his Dispensation may make lawful again, to that Person who has such Dispensa­tion, tho' it continues unlawful to any body else, &c. In which if we grant his Major, I will own, the Conclusion to bring it to Sir Edward Hales his Case, is not criminal: Yet the Proposition is so pernicious, striking at the very Foundations of our Government, that if there were a Resolu­tion, [Page 14] in stead of an extrajudicial Opinion, giving that Countenance which even that loose Opini­on does not; yet it ought to be rejected: For if all Acts of Parliament contrary to Magna Charta are void, as some have held, I am sure much more so would such Resolutions of Judg­es be; and that such an one would be contrary to that Great Charter, is evident; for no Man can say, that all things prohibited by Magna Charta, are prohibited by the Law of God.

Acc. p. 9.To come to Sir Edward's next Great Case, as he calls it, but indeed the onely one which has colour'd the Resolution to the World, which is that 2 H. 7.Yet p. 5. he promises to cite the Books and Pages, and to transcribe the very words of his Autho­rities, that e­very body may be convinc'd, if he were in a mistake, it was no wilful mi­stake. 2 H. 7. f. 6. b. & 7. a. Notwithstanding his Promise, he has not been so fair to give the Words of that Case, or so much of them as is material, lest every body might judge of how little use it would be to him; nay, lest Men should be for satifying their own Eyes, he has not dire­cted to the Folio.

The English of the material part is thus.

In the Exchequer Chamber all the Justices were shewn for the King, how King Edward the Fourth by his Letters Patents had constitu­ted the Earl of N— Sheriff of the same County, and had granted the said Earl the Office of Sheriff of the said County for the Term of his Life, with all the other Offices [Page 15] thereto belonging, rendring to the King at his Exchequer annually 100 l. without any Account, or any other thing to be given for it, &c.

Now, 1. Whether this Patent was good? And also, 2. How this Patent shall be in­tended? were the Points in question. And as to the first Point, the Justices held the Pa­tent good; for it is a thing which may well be granted for Term of Life or Inheritance, as divers Counties have a Sheriff by Inheritance, and this commenc'd by a Grant of the King. Then was shewn a Resumption, and then was shewn a Proviso for H. Earl of N. so that the Patent remains in its force.

Radcliff shews the Statute of 28 E. 3. c. 7. and 24 E. 3. c. 5. That no Sheriff shall be more than one Year, &c. altho' he had a Non obstante. And notwithstanding this, that the King shall always have his Prerogative, as of the Value and the Certainty of the Land, and other things granted by the King, and of Woolls shipp'd, and of Charters of Murder, and many other Cases, where the Statutes are, That Patents that want these things shall be void; yet the Patenrs are good with a Non obstante: But without a Non obstante the Patents are void, by reason of the Statutes, so here the Patent, with a Non obstante, &c.

[Page 16]This is all that is said in the Book upon the first Point, upon which 'tis observable,

1. By the Book it would seem that this Rad­cliff was but a Serjeant at Law; for at the end of the Case Brian Justice demands of Brian Radcliff, F. 7. &c. Yet indeed I find upon search, that he was a Baron of the Exchequer.

2. What Radcliff says is after the Resolution of the Judges over, and no way influenc'd that.

3. Whereas Sir Edward Herbert says, the Re­solution was upon 23 H. 6. c. 1. Radcliff, who should better know the Subject of Debate, di­scourses only concerning the Statutes 28 E. 3. c. 7. and 12 E. 3. c. 5. which are barely prohi­bitory,It should be c. 9. without any mention of Non obstantes, or any voiding or disabling Clause. Indeed Radcliff, it being upon a sudden Discourse, as the Book shews,F. 7. a. Brook Pa­tents, n. 45. mistakes the Statutes, as if they had such Clauses; and Brook, who cites part of the Patent, which it seems he had seen, says, there was in it a Non obstante to the Statutes 28 E. 3. c. 7. and 12 E. 3. c. 9.

Fitz. Ab. tit. Grant, n. 22. Fitzherbert indeed says, R. objected the 23 H. 6. but for that sit liber judex.

Account, p. 11.4. But above all, tho' our Chief-Justice calls them the Judges Enemies, who say, the Point of Non obstante is not resolv'd in this Case, which he calls Confidence, and that they may as well [Page 17] deny one of the ten Commandments; 'tis manifest beyond contradiction, that the Resolution end­ed at issint que le Patent demurr en sa force; after which comes Radcliff's Discourse; and the Re­solution went upon two Gtounds.

1. That this was a thing grantable for Inhe­ritance, or for Life; which if it were,First Ground. it could not be presum'd to be touch'd by the Prohibi­tory Statutes: And besides, if the Question had been upon the other, the Case had been an Ex­ception out of the Statute;23 H. 6. c. 8. for the Statute ex­cepts such Counties in which divers of the King's Leige People be inheritable to the Office of Sheriff at the making of the Statute, and also such Persons which have Estate of Freehold in the Office of She­riff, at the making of the Letters Patents made to to them of the Office of the Sheriff, &c. Now whe­ther this were really a County so inheritable, or of an Estate of Freehold, at the time, or no, is not so very material, being at least it was so look'd upon by the Judges, nay and by the Parliament too, as will appear by their second Ground.

But that this County was such an one, I take to be also true in fact:Vid. Cambd. Brit. f. 115. Vid Dugdale's Baron. f. 2. Bromton, a. f. 779 ad 798. De Regno Northumb. For it is to be consi­der'd, that this was the County of Northumber­land, which was a Palatinate, upon which Reason this, with other Counties under it, was left out of the Survey in Doomsday Book, as being pensi­tationibus [Page 18] liberi: This Palatinate compriz'd Cum­berland and Westmorland, among other Counties, in the last of which the Sheriffwick is at this day enjoy'd in Fee. Indeed Northumberland came soon into the Crown, as early as the time of William the Second, upon the Rebellion of Mow­bray, constituted Earl thereof in the time of William the First: But the Authority in Law is much clearer, that this Sheriffwick, if ever held in Fee, would remain in the Crown as an Inhe­ritance in gross, and was not merg'd, than any Sir Edward Herbert has produc'd on his side; for which we may observe the Rule taken in the Case of the Abbot of Strata Mercella, which is this:9 Rep. f. 25 b. ‘When a Liberty, Franchise, or Juris­diction was at the beginning erected and crea­ted by the King, and there was no such Flower in the Crown before, there by the Accession of them again to the Crown, they are not extinct.’

Where Instances are given of the Cases of Markets, Hundreds, and Earldoms; nor can any one say, that Sheriffwicks are ancient Flowers of the Crown:ir Rob. At­kins v. Rob. Holford in Scaccario Hil. 22 & 23 Car. 2. Vid. Rep pe­nes doctissi­mum Domi­num Ward. But more directly to our Case is that between Sir Robert Atkins, and Robert Hol­ford, which, tho' not in our Books, is well known. The Case was of the Grant of the Seven Hundreds of Cirencester, with the Returns of Writs to the Abbot and Covent of Cirencester: [Page 19] This came to the Crown by the Dissolution of Monasteries, 31 H. 8. but yet that it was not merg'd thereby, but remain'd as an Inheritance in gross, without the help of any Statute, was the Opinion of the Great Hales then Chief Baron, and of two other Barons, Windham, and Turner. Part of Hales his Words, as I find them excellent­ly well reported, and full to this Point, are:

‘Such Hundreds as were anciently severed from the Counties, and come again to the Crown by Escheat or Forfeiture, were some­times, but rarely committed to the Sheriff, and rejoyn'd to the County, but for the most part kept a distinct: Ret. Brevium, and the Hun­dred to which it was annex'd, without an actual and special Reannexion to the County, remains in the King in gross; for the Ret. Brevium is a thing created de novo. Suppose it were a Court or Jurisdiction meerly created by the King, and the Hundred it self, tho an­cient, yet by return to the Crown it is not merg'd or annex'd; this I know in the Case of the Courts belonging to the Honours of Gloster, and Hereford, that came to H. 5. by Marriage of a Coheir, it is still in esse.

This were enough to shew, that the Judges Resolution 2 H. 7. had a better Legal Foundati­on than what Sir Edward Herbert would suggest.

[Page 20] The second Ground.2. But then besides that, there was another Ground mention'd in the Book, which was, That a Resumption was shewn before the Judges; and then was shewn a Proviso for H. Earl of N. and so says the Book, the Patent remains in its force. This Resumption was an Act of Resumption 1 H. 7. and if this Act provided for that Earl's Grant, as the Judges it seems thought it did, who can doubt but the Grant was good? The Act of Resumption is to be seen upon Record;Rot. Parl. 1 H. 7. par. 2. it is a Resumption of Grants made by Edward the Fourth, and among others, of the Yefts, that is, Gifts of Offices: The Proviso runs thus.

‘Provided always, That this Act of Resum­ption, or any other Act made or to be made in this present Parliament, be not in any wise pre­judicial or hurtful to the several Grants, and Letters Patents made to Henry Earl of Nor­thumberland, &c. Which indeed does not make good any void Grant, but supposes all the Grants to him to be good in Law; nor would the Judges dispute their Supposal.

Account, p. 12.I admit with him, that Fitzherbert says, and that truly, That the Patent was adjudged good; but the Reason he gives agrees with what I have shewn; his words are, for such a thing may be grantable for Inheritance, or for Life; and then I [Page 21] am sure that the Statute does not say expresly, the Patent shall be void, Vid. Account, f. 12. tho' Sir Edward affirms that it does.

Obj. It may be objected, that the Exception in the Statute relates to Estates in the Subject; but if this were an Interest in gross in the King, that it could not be taken from him without ex­press words, cannot be denied me.

What he cites from Plowden, Account, p. 12. can be of no more service; for he onely says, there it is held, and I agree it is held by Radcliff, Accoont, p. 13. with a mistake of the Statute, That the King can grant a Sheriff­wick for more than a Year: Yet whereas he magnifies this as cited by Plowden, who, as he supposes, well understood the sense of the Year-Book;

1. It does not appear that it was Plowden, Grenden v. Levesque de Lincoln. but one who was of Counsel in the Case for the De­fendant, who mentions this.

2. He mentions it only as a Case in Fitzher­bert, without referring to the Book 2 H. 7.Plowden, f. 502.

But the second Point rais'd before the Judg­es,Second Point 2 H. 7. which occasioned the main Debate in that Case, as appears by the Book, shews, That the Resolution could not be upon the Point of Pre­rogative; for they question'd whether the King could dispense with his own Profit; and all the Judges except Brian, and Catesby, held, that the [Page 22] Patentee shall account for the Green Wax, and other things, notwithstanding the Clause of absque reddendo computum: But the Debate concerning other things arising upon that second Point, was adjourn'd; the first resolv'd upon the Grounds above.

Tho hitherto there is no proof, that any one of Authority in the Law has taken the Book 2 H. 7. in Sir Edward Herbert's sense, which yet would be of no moment if they were express, being the Book is to be seen, and clearly other­wise; yet he thinks my Lord Coke will bear him out, and to this purpose he cites two Places; one, where he supposes that the Lord Coke not onely authorizes this sense of the Case, but as­serts the Prerogative in much higher Terms than they would presume to do;Account, p. 13. and by the second he would have it believ'd, that if the Lord Coke be a faithful Reporter, all the Judges of England took that Case in the same sense.

The first is the Case of Customs, 24 Eliz. which is pregnant with many Objections against its being of any force in this Case.

12 Rep. f. 17.1. The Book is of suspected Authority, be­ing printed in the late Times, and what the Lord Coke never own'd, or thought fit to print in his Life-time.

2. This comes foisted in among Cases in [Page 23] the time of King James, without any parallel Case which might occasion the placing of it there.

3. It was when the Lord Coke was but a young Reporter,Was made Sollicitor 16 June, 34 Eliz. Dugd. Cron. Series, f. 99. it being ten Years before he was King's Sollicitor.

4. It is not onely no Point in question rela­ting to the Case where 'tis cited, and so extraju­dicial, but wholly foreign to it: For the Que­stion was, Whether Goods sold before they were landed, were to pay Custom within the Statute 1 Eliz. c. 11. Wherefore being barely a Memo­randum of a young Reporter, no way occasio­ned by what went before, it cannot possibly have any weight.

5. The fancy'd Reason there given why the King may dispense with the Statute of Sheriffs, is none at all; for whereas it says,12 Rep. f. 18. that the King has a Sovereign Power to command any af his Subjects to serve him for the Publick Weal, and this solely and inseparably annex'd to his Person; and this Royal Power cannot be restrained by any Act of Parlia­ment; there is no Authority cited for this, but the Case 2 H. 7. which, as appears to any body that reads it, neither has that Reason mention'd so much as by any one Judge, nor in the least goes upon the Point of the Prerogative. Be­sides, if the King can command any Subject to [Page 24] serve him for the Publick Weal, either he is to be Judge, or the Laws. If the latter, then no Person not qualified by Law is oblig'd to act; nor tho' qualified, to do any thing forbid by the Laws. If the former, as the Words imply, then the King's Commands may be pleaded to justifie any ill Minister who has rendred himself obnoxious to the Laws. But that this cannot be, is sufficiently evinc'd by necessary Examples in all Ages. And this, by the way, may shew how false, as well as pernicious, that Doctrine is, which tells us,Dr. Sherlock's Case of Resist. p. 113. That [...] in the New Testament always signifies the Authority of a Person, not of a Law: Or, as another has it to the same pur­pose,Dr. Scot's Serm. upon Rom. 13, 1. By Higher Powers, it is evident, we are to un­derstand the Persons of Sovereign Princes, or Go­vernours, not the Laws and Constitutions, as our Re­publican Doctors pretend.

Of the same Batch is another memorable Po­sition,Dr. Sherlock's Case of Non-resistance, p. 199. That the King's most illegal Acts, tho' they have not the Authority of the Law, (for indeed, to say they have, would be a Blunder with a wit­ness) yet they have the Authority of Sovereign Power. Some will say, that this is qualified by what fol­lows, Which is irresistible and unaccountable; as if the King had this Power onely so far as it is ir­resistible and unaccountable: Whereas it is evident, the Proposition is entire before, being the Me­dium [Page 25] whereby he would prove, that the King's illegal Acts are not inauthoritative; in proof of which Medium, he afterwards affirms,Pag. 199, 200. That the Sovereign Power which made the Laws, and can re­peal and dispense with them, is inseparable from the Person of the Prince.

Reduc'd to a Syllogism, it runs thus:

The Authority of Sovereign Power is irresistible, and unaccountable: But the King's most illegal Acts have the Authority of Sovereign Power. This is an entire Proposition, upon which he concludes, Ergo, The King's most illegal Acts are irresistible, and unaccountable. This Assumption he goes to prove from the Supposition, that such a Sove­reign Power as he describes, is inseparable from the Person of the Prince; upon which, or the like Doctrine, another raises this comfortable Use.Jovian, p. 242. How falsly, vid. the Letter to Jovian. In all Sovereign Governments (and such he at large endeavours to shew England to be) Sub­jects must be Slaves as to this Particular, they must trust their Lives and Liberties with their Sovereign.

But for the Honour of our Gown, this may be said, That such Hereticks never appear'd among Lawyers, Vid. Jovian, p- 236. till Divines began thus to wrest the Laws, and Scriptures to their own damnation. But as the former Quotation out of the Lord Coke can do Sir Edward Herbert no service, upon the Reasons above shewn, much less can the [Page 26] other, which is one of Sir Edward's usual Perver­sions:Account, p. 13. He tells us, That it is resolv'd by all the Judges, if my Lord Coke be a faithful Reporter, that it is agreed 2 H. 7. That the King may, against the express Provision of the Act 23 H. 6. dispense with that Act; for that the Act could not bar the King of the Service of his Subjects, which the Law of Nature did give unto him. He adds, This is reported (unless my Lord Coke had a mind to de­ceive the succeeding Judges, and draw them in to give pernicious Opinions) as the Sense of all the Judges of England, in King James's Time, in the Exchequer-Chamber. Whereas the Lord Coke, on purpose to prevent such an abuse of his Words, says in the beginning of the Case,

7 Rep. f 4.
I shall give no just offence to any, if I challenge that which of right is due to every Reporter, that is, to reduce the Sum and Ef­fect of all to such a Method, as upon consi­deration had of all the Arguments, he himself thinketh to be fittest and clearest, for the right understanding of the true Reasons and Cau­ses of the Judgment, and Resolution of the Case in question.

Upon which it is evident, that if any one of the Judges mentioned this, the Lord Coke is a faithful Reporter; but had he been silent as to this matter, no man could suppose, that such a [Page 27] tedious Argument as that in Calvin's Case, was the Resolution in which the Judges concurred in every Expression.

But Sir Edward Herbert's own Eyes might, and ought to have satisfied him, that the Judges 2 H. 7. gave no Determination upon the 23 H. 6. nor does the Book say, that so much as any one Person spoke to that Statute, or men­tion'd the Reason devis'd in Calvin's Case; for that the Act could not bar the King of the Service of his Subject, which the Law of Nature did give unto him. Nor could Sir Edward chuse but know the absurdity of that Ground; for according to that, all ought to be left in the State of Na­ture, as it was before any Law made; so that not onely any Person might act, tho prohibited by subsequent Laws, but he might act any thing forbid by any positive Law;Vid. Archb. Abbot's Exce­ptions to Sib­thorp's Serm. Rushw part 1. f. 439. & 442, which would make a mad World: And this would come of a Natural Allegiance due to the Person of a King, without respect to the Laws of his Go­vernment. And the Resolution of the Judges in Calvin's Case, is quite contrary to this Suppo­sal; for it is there resolved, That they who were born under King James his Allegiance,7 Rep. f. 27. Vid. Vaugh. f. 286. before he had the Crown of England, were Aliens here, notwithstanding that Accession.

[Page 28]But my Lord Coke is so far from giving any real Countenance to such a Resolution, as that in Sir Edward Hales his Case, that he, in con­currence with all the Judges of Edgland, is ex­press to the contrary; for in relation to the Court of Admiralty, he and the rest of the Judges declare,4 Inst. f. 135. ‘That the Statutes of 13 R. 2. c. 3. 15 R. 2. c. 5. and 2 H. 4. c. 11. being Sta­tutes declaring the Jurisdiction of the Court of the Admiral, and wherein all the Subjects of the Realm have Interest, cannot be dispensed with by any Non obstante. Nay, he gives another Resolution of Judges, tho' not so solemn as the former, yet what he says is warranted in the Books, and the Resolution comes up to our Case in terminis:3 Inst. f. 154. His Words are; ‘When an Act of Parliament is made that disableth any Per­son, or maketh any thing void, or tortious, for the good of the Church or Commonwealth, in that Law all the King's Subjects have an Interest, and therefore the King cannot dispense therewith, no more than with the Common Law.’

All the Chimerical Foundation of Solemn Re­solutions being thus destroy'd, I need not con­cern my self with the vain aery Superstructure, which must vanish in fumo; and in stead of the Appeal, Account, p. 16. What may be relied upon, if such Resolutions may not? I appeal to all Mankind, Whether our [Page 29] Senses are not sufficient Judges against these Ac­cidents, subsisting without any Subject, meer Transubstantiation Nonsense! Such are Reasons devis'd for a Resolution which never was to be seen.

But we are told,Account p. 16. That besides the Authority of the Case, we have constant Practice that this Statute has been dispens'd with ever since; and if it were not so, the Consequences would be dreadful, illegal Convictions, &c. But to this I say,

1. A facto ad jus non valet argumentum, till there be legal Determinations on the side of the Fact.

2. The Fact cannot be shewn, for any She­riff to have enjoy'd the Office for more than one Year by the same Patent.

3. However the Consequences would not ne­cessarily follow; for we know,Vid. Consid. touching the Grand Quest. a. p. 210. to 214. 1 Inst. f. 58 b. even Laws made by Kings de facto have always been look'd on as binding, and so have the Admittances to Copy­hold Estates, made by Disseisors, and others with­out Title. And, tho' I love not to lay any great stress upon Presidents of our own time, yet it may serve to Sir Edward; and we well know, that notwithstanding the late illegal Choice of Sheriffs in the City of London, yet no Challenges were allow'd, because they were She­riffs de facto.

[Page 30]That I may not be here unnecessarily detain'd, with what he says to real or fancied Objecti­ons, I shall hasten to his other pretended Autho­rities, and shall begin with his last, as having the most immediate reference to the Cases above-cited, and which he seems to be most proud of, and that is Serjeant Glanvil's Argument, delive­red at a Conference between the Lords and Commons; wherein he owns, that in such things as are onely mala quia prohibita, Account, p. 26. under certain Forfeitures and Penalties to the King, and the Informer, there the King may dispense. This indeed is more than appears from any Case that Sir Edward Herbert has cited, as I have shewn above; yet is no more than what the Lord Coke saith elsewhere, immediately after he has denied that Power in things made void or tortious, Vid. supra, 3 Inst. f. 154. for the Good of the Church or Common-wealth; in which, he says, all the King's Subjects have an Interest, and therefore the King cannot di­spense therewith, no more than with the Common Law.

All that is more in Serjeant Glanvil, relates onely to the Nature of those Laws which were then insisted upon; if he went further, it could no more be an Evidence of the Opinion of the House of Commons in that Point, not being the Point put to the question, than his Quotation [Page 31] out of Calvin's Case, is of the Opinion of all the Judges. But the first part of his Speech cannot be stretch'd farther than mala prohibita had for­merly been taken, that is, in relation to new Prerogatives,Vid sup p. 12, 28, 30. or at least Things wherein the Sub­jects in general have no Interest vested in them; and he expresly restrains it to such Cases,Account, p. 26. wherein his Majesty, by conferring Grace and Favour upon some, doth not do wrong to others; as it is in my Lord Coke above, and in Moor, where 'tis held,Moor, sup. f. 714. That Statutes which give a Prerogative, or restrain the Prerogative, may be dispens'd with; but not such as give, or dispose of Interests: And as to what restrains the Prerogative, not coming with­in the mala prohibita, tho' it falls not under con­sideration here, yet we may observe the diffe­rence taken in Lord Hobart, Hobart, f. 146. Vid. Vaughan, f. 57. speaking of Lord Ho­bart's Judg­ment, which is always accu­rate for the Reason of the Law. where a Statute is made to ease the Sovereign of Labour, not to deprive him of Power. In the first Case the King may dispense, not in the other.

And I think no man can doubt but the Sta­tute 25 Car. 2. c. 2. which not onely requires Officers to take the Oaths, and Test, to distin­guish them from Papists, but disables them that do not take them within three Months, vests an Interest, not onely in several particular Persons, who may be Reversioners, but in all the Sub­jects in general; and is of the nature of those [Page 32] Statutes insisted on in the Petition of Right, and press'd for by Serjeant Glanvil, ‘Not Laws in­flicting Penalties in malis prohibitis; Account, p. 27. but Laws declarative, or positive, conferring, or confirming ipso facto an Inherent Right, and Interest of Li­berty, and Freedom in the Subjects of this Realm, as their Birthright, and Inheritances descendable to their Heirs and Posterity. A Freedom, I may add, from Popish Slavery and Tyranny, Statutes incorporate into the Body of the Common Law, over which, with reverence be it spoken, there is no Trust in the King's Sovereign Power, or Prerogative Royal, to enable him to dispense with them, or take from his Subjects that Birthright, or Inheritance which they have in their Liberties, by vertue of the Common Law, and of these Statutes: I may say, this Statute.

And such a Statute it is, that no man that wishes well to the Protestant Interest, not onely here, but thro' Christendom, would consent to the abrogating or impairing the Force of it; without obtaining such Laws for restoring the ancient Constitution, both for the Choice of Sheriffs, and Counsellors, among other things, as might more effectually keep out the Booted Apostles, than any other Means, next to the glorious Expedition of his Highness the Prince of Orange: whose mira­culous Successes, are not onely the Subject of present Admiration, but have been plainly fore­told [Page 33] in past Ages,Vid. Grebner, cited in the Northern Star. Vid. Nostre­damus, Cent. 1.33.35.2.68.87.3.16.4.75.89.5.24.26.34.87.6.7.13.28.8.58.9.38.64.10.7.26.56.12.80. 5th. Stanza, at the end. and will be celebrated in all future.

But to return from this short Digression: 'Tis manifest that Serjeant Glanvil speaks as well of such Laws as are positive, as those that are declarative; such as confer an inherent Right, as that confirm; and of Statute, as well as Common Law, not to be dispens'd with; so that he is ma­nifestly on our side, and seems not in the least to have exceeded the Lord Coke, where he makes so express an Exception of our Case, from that Dispensing Power which he allows. By inherent the Serjeant can mean no more, considering the import of confer, than actually vested, and inhe­rent, and inseparable by any less Power than that from which it was derived. Thus in relation to those Prerogatives that have been counted in­herent, and inseparable in relation to Penalties, and the like,Vid. Lord Cook's c. of Penal Sta­tutes, 7 Rep. f. 36. the true meaning can be onely that while they continue, they are not to be se­parated, and transferred over to another: Yet no thinking Man will doubt the Power of a Parliament, in relation even to them; and if they cannot be receded from in particular, at least they may in gross; when a King does cedere imperio, or abdicare Regnum, which most Prero­gative-Casuists [Page 34] own may be,Vid. Grot. de Jure Belli & Pacis. Vid. Falkner's Christian Loy­alty, p. 544, 545. speaking of the Parisian Massacre, &c. But if ever any such strange Case as is pro­posed, should re­ally happen in the World, I confess it would have its great Difficulties. Grotius thinks that in this ut­most Extremi­ty, the use of such Defence, as a last Refuge, ultimo neces­sitatis praesi­dio, is not to be condemned, provided the Care of the Common Good be preserv'd. And if this be true, it must be upon this ground, that such Attempts of Ruining do ipso facto include a disclaiming the Governing those persons as Subjects, and consequently of being their Prince or King. V. Bishop Bilson, of Christian Subjection, Ed. 1586. p. 280. I never deny'd, that the People might preserve the Foundation, Freedom, and Form ef their Commonwealth, which they forepriz'd when they first consented to have a King. not onely by actual cession from the Government, but by Acts amounting to an Abdication, and shewing a fixt Intention no longer to treat his People as Subjects. Nor perhaps could there be greater Evidence of such Intention, than the dispensing at a lump, not barely by retail to particular Per­sons, with those Laws which were made by the united Wisdom of the Nation, to secure it, as much as they thought Humane Means could, or, at least, the Court would yield to, against those real Dangers, which were in their imme­diate prospect: Nor in all probability had this Enclosure been laid waste, if the Dispensing Judges had not made the first Gap.

Account, p. 24.As to Sir Edward's suppos'd clear Concessions of this Power from all the Commons of England, 1 H. 5. they are quite otherwise than he represents them, nor would be conclusive to his Point however.

In the first, says Sir Edward, ‘The Com­mons pray, that the Statutes for voiding of Aliens out of the Kingdom, may be kept and executed; to which the King agrees, sa­ving [Page 35] his Prerogative, that he may dispense with whom he pleases; and upon this the Commons answered, That their Intent was no other.’

But the Record says, Sauvant a luy sa Prero­gative, "Saving to him his Prerogative. What­ever that was, they declare, they never intended to injure it. Then it goes on with the Copula­tive and, which adds new Matter, and is disho­nestly left out by Sir Edward, Et qil purra dispen­ser ovesque cex queux luy plerra, AND that he may dispense with whom he pleases:’ Which is an additional Grant, or Licence to that King; but that this Saving is but a general Saving of the Prerogative, appears by the very next Re­cord, which he cites of the same Parliament.

Sir Edward's Words are, ‘In the same Parlia­ment, when the Commons pray, That the Statutes of Provisors, Statutes of the same na­ture with this in our Case, (for they were made against the Court of Rome's encroach­ing Jurisdiction in England) I say, when they make the like Prayer, That these may be put in execution; being admonished by the King's Answer in the former Case, they themselves insert in their very Prayer, a Saving for this Prerogative of the King's, and then the King agrees to it.’ Where he would insinuate, that this Prerogative of dispensing with particular [Page 36] Persons, is there sav'd; when the Record is ex­press to the contrary: The Words in English are,

Rot. Parl. 1 H. 5. n. 22. ‘Also the Commons pray, for the Good and Profit of the Realm, That all the Statutes made against Provisors, in the Times of the most Noble Kings E. 3. R. 2. H. 4. your Fa­ther,Qe Dieu as­soille. whom God be merciful to, may stand in their force, and may be held, and execu­ted in all Points,A aucuny fait un affair a contre. and that no Protection, nor other Grant, to any Person, by our Lord the King, working to the contrary, in forbear­ance of the Execution of the said Statutes, be allowable or available to any Person whatsoe­ver in this Matter.A nully. And if any thing be done to the contrary,Pur null. let it be held for null, or void: Saving all times the Prerogative of the King.’

The King answers, ‘Let the Statutes thereof made be held and kept.’ Which is plainly meant according to their Prayer, without the King's impeding the Execution of them by any Protection, or other Grant to any Person what­soever; and if such Grant be, that it shall be void.Vid. Account, p. 10. Is not this as much as to say, That no Non obstante shall make any such Grant good? Oh but Sir Edward will tell us, That this shews that the Parliament thought the King could otherwise have dispens'd with those Acts. By no means; it onely argues an Abuse crept in (which Matthew [Page 37] Paris shews to have been as early as the time of H. 3.) and likely to be allow'd of by the Judg­es; but the Parliament would prevent even that; and surely they would never provide, that a Non obstante, or Grant to a particular Person, shall be void, if they thought the King had a Prerogative to defeat this when he pleas'd: much less, when they expresly pray against such an Abuse, can they be thought to contradict themselves, and in the same Breath that they desire that no Person whatever may be dispens'd with, yet leave the King a Prerogative to di­spense with whom he pleases: The absurdity of which Reasoning he might have seen in that excellent Speech of Serjeant Glanvil, Vid. Serjeant Glanvil's Speech. Rushworth's Coll. part 1. f. 573. & 575. Account, p. 25. which he himself receives as the Sense of the Commons of England assembled in Parliament.

Wherefore the Savings in both the Records can be but general Savings, of such Prerogative as the Kings had, whatever it were: Which the Kings, as they began to encroach upon the Peo­ple, or to be Jealous of their Encroachments, would have inserted out of abundant Caution, before they would yield to several Acts. And these being Acts of Parliament, which could pass but as the King consented, the People were forc'd often to gild the Pills with such Savings; but 'twas otherwise of Judgments in Parlia­ment, [Page 38] to which no Consent of the King was requisite.

Farther yet, Admit the King had a Preroga­tive of dispensing with particular Persons, both as to Aliens, and Provisions; yet there could no general Rule be taken from thence, because it would onely argue, that the fondness for Ali­ens, and fear of displeasing the Court of Rome, had at first occasioned the reserving the Power of easing some particular Persons, without which the Kings would pass no Act against them. However it was, the frequent Complaints of the Commons,Vid. Dr. Stil­lingst. against Cressy, from p. 426. to p. 461. and Acts made against both the one and the other, shew, that those Laws were little regarded or executed, and yet that the King had not a Prerogative allow'd him, any more for particular Persons, than for all in general.

Sir Edward has five other trivial Instances of the Dispensing Power, which however I shall not omit. One is the Dispensing with the Sta­tute 8 R. 2. c. 2. which requires,Account, p. 19. that no Man should go Judge of Assize into his own Coun­try: But for this there is onely Practice, which has pass'd sub silentio, and so could be of no Authority in Law: Besides, the Statute is barely Prohibitory, and does not render the Patents void if otherwise; yet I cannot say but an Informati­on would lie, tho' there were a Non obstante in the Case.

[Page 39]The second is of dispensing with the Statute 10 E. 3. c. 3. which provides,Account, p. 19. That whoever has a Pardon of Felony, shall find Sureties of the Good Behaviour: Of which he says, as of the other, That it has been constantly dispens'd with ever since it was made. But if the Practice had been so, which he does not prove, it would not avail, unless it had come in question judicially, Whe­ther the Pardon would be valid to one who had not given, or at least tendred Sureties. Indeed there is a Case in our Books, where the Court did not require Sureties, because of a particular Clause in the Pardon dispensing with it:Sir Matthew Mints Case, Crook, Car. f. 597. but this was no earlier than 16 Car. 1. the Judges of which time paid sufficient deference to Pre­rogative; but that Case seems to be not onely primae impressionis, and without any Rea­son given, but in effect condemn'd by the Re­porter, as he shews that the Court abus'd their Discretion, if they had any in the Matter: Twas the Case of Sir Matthew Mints, who appear'd to be guilty of several Misdemeanors, for which he deserv'd to be bound to the Good Behaviour, committed after the time to which he was pardon'd.

The third and fourth Instances,Account, p. 31. scatter'd from the rest, are of dispensing with Pluralities, and Bastards entring into Priests Orders; which,p. 32. if pos­sible, will be less serviceable to him: For,

[Page 40] Vid Vaughan's Rep. f. 20. Edes v. Eves (que) d' Oxford.1. Such Dispensations are never granted by the King, but by the Archbishop; and the King onely licenses, or confirms, the Archbishop's Di­spensation in unusual Cases.

2. That the King's Licence or Confirmation in Cases unwont, as the Statute has it, is of any force, is owing to the Statute 25 H. 8. c. 21.

3. Even in usual Cases, where the Archbishop might dispense, tho' the King's Confirmation be added, yet unless it come in due time, it will not prevent a Lapse incurr'd upon the Statute 21 H. 8. c. 13. against Pluralities; as was ad­judg'd in Digby's Case,4 Rep. f. 78. b. tho' the Dispensation came before Induction. And this comes up fully to one of the Points in Sir Edward Hales his Case, which our Chief Justice has not been so fair as in the least to mention to be a Point in the Case: nay, quite contrary, he supposes it to be a Case where a Disability is annex'd as a Pe­nalty, Account, p. 38. and that Penalty is not to be incurr'd before Legal Conviction, and where the King's Dispensation makes the thing dispens'd with lawful, and consequently prevents any Conviction or Penalty at all; forgetting, that in the very State of the Case,pag. 5. he owns there was a Conviction before the Dispensation came; so that here was a Disability actually incurr'd, and that upon Record, as appears in the Pleadings; and while that Record remains, there is no fal­sifying [Page 41] of it,Vid. Rolls Abr. Brook. Fitzh. tit. Estoppel, particularly Statham. Si home soit oblige de gar­der le Peace & puis Scire facias issist vers luy de ceo qil bat. uneqe viet & est trove coup. & puis cet port. brief de trans. vers luy de mesm le batie & il pled de rien coup. il luy estoppera per matter trove al suit le Roy, &c. So Brook. n. 59. tho' in fact the Conviction were before the three Months given in the Statute to prevent a Disability; and he had no other Means, than either to plead no such Record, or to bring his Writ of Error. Wherefore this Di­spensation comes clearly within Digby's Case, as being too late, supposing otherwise it were valid.

As Sir Edward shews that he has read Tho­mas and Sorrel [...]s Case, he might have known another Reason given of these two Cases, viz. Vaughan, f. 358. ‘That the King may dispense with a Bastard to take Holy Orders, or with a Clerk to have two Benefices with Cure; which were mala prohibita by the Canon Law, and by the Coun­cil of Lateran, not by Act of Parliament;’ which is most true: For these are mention [...]d in the Book of H. 7. before any Act made against Pluralities.

There is another Instance in that wild An­notation, upon the Case of Customs in the 12 Rep. where 'tis said,Account, p. 14. ‘See 4 H. 4. c. 31. in which 'tis ordain'd, That no Welshman be Ju­stice, &c. in any part of Wales, notwithstand­ing any Patent to the contrary, with Clause of Non obstante licet sit Wallicus: And yet with­out question the King may grant with a Non obstante.

[Page 42]Nor do I question it neither, even before 21 Jac. c. 1.38. when that Statute was repeal'd, provided the Welshman use not Welsh Speech; and this by 27 H. 8. c. 26.

But as to these three last Instances, it might be said further, That if they were stronger than they prove, yet they might fall under the Difference receiv'd by him from Lord Vaughan, where he says, The King may dispense with Laws made pro bono populi complicati, but not with such as are made pro bono singulorum populi; in which the Lord Vaughan is not so absurd, as to mean, that tho' the King cannot dispense with a Law in which any Man in particular is so far in­terested, as to be intitled to an Action for himself alone, yet he may with those in which all the Sub­jects are interested: But his Meaning, to make him consistent with himself, must be restrain'd to Lord Coke's Sense upon the Penal Statutes, which makes this Power to be onely where the King, Vid. 7 Rep. p. 36. as Head of the Commonwealth, is trusted by all the Realm; in which sense, he alone is to look after the Interest of the populus complicatus under him, as Head. Thus Lord Vaughan, 1. ex­presly qualifies it,Account, p. 21. when he says, ‘They are pro bono populi complicati, as the King in his Discretion shall think fit to order them for the good of the whole.’ 2. He illustrates it by the [Page 43] Example of a Pater-familias, ‘whose Estate,Vaugh. p. 342. he tells us, may be said to be pro bono communi of his Family, which yet is but at his Discretion, and Management of it, and they have no In­terest in it, but have Benefit by it.’ 3. Both he, and Sir Edward Herbert allow Instances, where every particular Man is not entitled to his Action, and yet the Statutes are own'd to be pro bono singulorum populi, and not to be di­spens'd with; and such are Magna Charta, Account, p. 27, 28. and those other Laws mention'd by Serjeant Glanvil, and Sir Edward. Account, p. 11. And if some difference can be found between the Interest singulorum populi in all those Statutes, and in ours, to use his words, I wish any man would shew me any such difference; or else we must say, That not onely the former Resolutions, but Lord Vaughan here, as well as where I before observ'd, is full against him;Supr. p. 12. nay, even he is against himself: which I would be loth to think that Lord Vaughan is, who owns,Thomas v. Sorrel, f. 350. That the King cannot dispense in any Case but with his own Right, and not with the Right of any other; which he confines not to individual Persons, consider'd singly; for he says expresly,Ib. f. 347. If the Wisdom of the Parliament hath made an Act to restrain, pro bono publico, the Importation of Foreign Manufactures, that the Subjects of the Realm may apply themselves to the making [Page 44] of the said Manufactures for their Support, and livelihood, to grant to one or more the Importation of such Manufacture, without any Limitation, non obstante the said Act, is a Monopoly, and void. For this I am sure, particular Persons are not entitled to Actions upon their own accounts. Indeed he supposes the King may license, limiting the Quantity,Vaugh. f. 346. and that for private uses, not by way of Merchandise, as not being against the End of the Act. Wherefore in our Case all the Sub­jects being interested as Protestants, their Sup­port and Encouragement being provided for by the Act, and the letting Papists into the Go­vernment against the End of it, who can doubt but Lord Vaughan would have pronounc'd Sir Edward Hales's Dispensation void?

Account, p 31.And whereas our Judge pleads in his excuse, That tho' this Law was made for the Interest of Religion, the Offence is not directly against Religion, but against a Politick Constitution, tho' made for the Interest of Religion, he might not onely have learnt from Lord Cook above,Supr. p. 30. That the Subjects have such an Interest as the King cannot dispense with, in what is made void or tortious, that is, unlawful, for the good of the Church; but Lord Vaughan shews,Vid. Lord Vaughan, f. 339, 340. That there are mala politica, not to be dispens'd with, and instances in some things, which are Nusances in specie.

[Page 45]Now besides what already has been shewn, to disable these three last Instances urg'd by Sir Edward; That they are not pro bono singulorum populi, as that Rule is vindicated from Misap­plications, may appear, in that neither of them affect all the People in general: As to the Cler­gy-men, they can only do injury in their respe­ctive Parishes where they are Benefic'd, and the Welshman in that part of Wales where he is an Officer; nor besides, can the Clergy-men be suppos'd much to prejudice the Interest of Reli­gion, being the Plurallist cannot supply his Cure but by one qualified, and the Bastard might be a good Man, and good Preacher.L. Vaughan, f. 344, 345, 346, 347. And yet even these would fall within Lord Vaughan's ac­ceptation of his own Rule; for he shews, That Laws made for the benefit of but part of the Kingdom, Artificers, and Husbandmen, cannot be dispens'd with to any one Person, to frustrate the Ends of the Statutes.

This leads to another Flourish which he makes with the Lord Vaughan's Authority, in an­swer to the Objection, That the Law was made pro bono publico, Account, p. 22. and was highly necessary for the Publick. Indeed Lord Vaughan will have it, that the sole Reason why a Statute cannot be di­spens'd with, is not, that the Law was made pro bono publico, because all Laws were made for [Page 46] Publick good; and yet Dispensations had been allow'd in some, nor was the Degree of Pub­lick good that which alter'd the Case; yet he shews, that the Extent of it does: and seems still to keep to Lord Cook's Rule, Where the People had entrusted the King with the Law, as Head of the complicated Body, there the Trust was entirely in him; but when the Law extended in Interest not onely to individual Per­sons, but to a considerable part of the Nation, much more when to all, in either of which Ca­ses the Statute is pro bono singulorum populi, in neither of these can the King dispense. And that the Statute in question is of the largest ex­tent, appears, as the Nation is a Protestant Na­tion, this the Religion establish'd by Law, and these Provisions necessary Means to preserve it; and therefore tho' the Papists have no benefit by it, they are not in Law, in this respect, any part of the People; for People always is taken for them that have Legal Interests. Thus when the Statute provides,2 Inst. f. 559. That the People of Coun­ties shall chuse their Sheriffs, it relates not to all the People in general, but onely to Freeholders.

2dly.Having thus shewn, That those Grounds which our Judge pretends to have gone upon, afford no Countenance even to his Pal­liation of the Judgment, they will appear [Page 47] much less to countenance it as it was deliver'd; which to evince, I shall here set it down ip­sissimis verbis, from that faithful Reporter Mr. Blaney.

It was on that memorable Day when, as another mark of his Sincerity, he directed the willing Jury, and concurr'd in the infamous Sen­tence against that excellent Author Mr. Johnson; when the Jury was gone out, the Chief Justice took occasion to inveigh against spreading of Scandalous Reports about Cases depending in the Court; and to prevent any thing of that Nature in the Case of Sir Edward Hales, he thought fit to deliver the Opinion of the Judges in this manner.

C. J. ‘In the Case of Godwin and Hales, wherein the Defendant pleads a Dispensation from the King, it is doubted, whether or no the King had such a Prerogative? Truly, up­on the Argument before us, it appear'd as clear a Case as ever came before this Court: But be­cause Men fancy I know not what difficulty, when really there is none, we were willing to give so much Countenance to the Question in the Case, as to take the Advice of all the Judges of England: They were all assembled at Serjeants-Inn, and this Case was put them, and the Great Case of the Sheriffs was put, whe­ther [Page 48] the Dispensation in that Case were Legal, because upon that depended the Execution of all the Law of the Nation? And, I must tell you, that there were then Ten upon the place, that clearly delivered their Opinions, That the Case of the Sheriffs was good Law, and that all the Attainders grounded upon Indict­ments found by Juries return'd by such Sheriffs, were good, and not erroneous; and conse­quently, that Men need not have any Fears or Scruples about that Matter. And, in the next place, they did clearly declare, That there was no imaginable difference between that Case, and this, unless it were, that this were the much clearer Case of the two, and liable to the fewer Exceptions. My Brother Powel said, he was inclin'd to be of the same Opinion, but he would rather have some more time to consi­der of it; but he has since sent by my Bro­ther Holloway, to let us know, that he does concur with us. To these Eleven Judges, there is One Dissenter, Brother Street, who yet continues his Opinion, That the King cannot dispense in this Case: But that's the Opinion of One single Judge, against the Opinion of Eleven: We were satisfied in our own Judg­ments before, and having the Concurrence of Eleven out of Twelve, we think we may very [Page 49] well declare the Opinion of the Court to be, That the King may dispense in this Case; and the Judges go upon these Grounds.’

1. ‘That the Kings of England are Sovereign Princes.’

2. ‘That the Laws of England are the King's Laws.So Sibthorp, Rushworth vol. 1. p. 422.

3. ‘That therefore, 'tis an Incident inseparable Prerogative in the Kings of England, to di­spense with Penal Laws in particular Cases, and upon particular necessary Reasons.’

4. ‘That of those Reasons, and those Necessi­ties, the King himself is sole Judge: And then, which is consequent, upon all,’

5. ‘That this is not a Trust invested in, or granted to the King by the People; but the ancient Remains of the Sovereign Power, and Prerogative of the Kings of England, which never yet was taken from them, nor can be. And therefore such a Dispensation being pleaded by the Defendant in this Case, and such a Dispensation appearing upon Record to come time enough, to save him from the Forfeiture, Judgment ought to be given for the Defendant, quod querens nil capiat per billam.

'Tis evident, that these Propositions are very wide from any thing he has, or could have [Page 50] urg'd from the Books, unless where a Brand of Infamy has been set upon the Judges. The Examples of which, made in several Ages, one would have thought, might have given sufficient Caution; yet, indeed, he might have had enough of this kind from those of the other Gown, who, I think, are now pretty well asham'd of these Notions. Whatever Power of Dispensing the King has, the Books suppose it to be entrusted by the People; but according to this Resolution, it came down from Heaven the Lord knows how: And as he goes upon the Supposition of an Absolute Sovereignty in the King,V. Case of Re­sistance, p. 200. See there such a Sovereignty as makes laws, can repeal, and dispense with them. Fortescue, p. 32. Ad tutelam namque legis subditorum, ac eorum corporum & bonorum rex huj [...]smodi ere­ctus est, & ad hanc potestatem a populo efflux­am ipse habet quo ei non licet potestate aliâ suo populo do­minari. See this con­demn'd 13 & 14 Car. 2. c. 29. V. Bushw. part 2. f. 608. inseparable from his Person, as such will have it, unless that be granted, all that he builds upon it are but Castles in the Air: For this we are to have re­course to our Constitution, to see what that Power in the Prince is; which, the great Forte­scue says, is, à populo effluxa, ‘deriv'd from the People.’ But for that we have no occasion, from any so much as pretended Proof of his Assertions; nor can any be offer'd but from the Resolution of the infamous Ship-money-Judges, which seems to run parallel to this, but is in­deed far short of it: For tho' they made the King the sole Judge of the Kingdom's Necessity, yet they suppos'd it to be at a time when there [Page 51] was a real Danger to be prevented by the ex­ercise of this Judgment; whereas here it is abus'd to the bringing in what the Parliament labour'd to prevent.

But I must observe,Vid. Account, p. 37. 1. That whereas Sir Edward Herbert owns the Dispensing Power to be of dark Learning, and that it is very fit it should receive some Light from a Determination in Parlia­ment, that Judges may judge by more certain Rules, which Acts of Parliament the King may, and which he may not dispense with. Grant his Premisses, and there can be no Darkness in it; for the Power will extend to all Cases, as far as the Legislative does; and that he has determin'd positively in this Point,Account, p. 8. when he makes all things not forbid by God's Law, to be dispensible by the King; nay, if he might dispense with every malum prohibitum, that is not malum in se, with­out such Qualification as I have shewn ought to be, it would go farther, even as far as God's Power,Vid. Grot. de Jure Belli & Pacis, l. 1. c. 1. Sicut ut bis duo non sint quatu­or ne a Deo quidem effici potest; ita ne hoc quidem ut quod intrinsecâ ratione malum est malum non sit. who never dispenses with more than his own Positive Laws, not such as are founded up­on Eternal Reasons: And thus the Positive Laws of God and Man would be subject to the Plea­sure of the Prince. 2. He has taken it out of the Power of the Parliament, to settle the Bounds of this extravagant Power: For, what he ascribes, he says, never was taken from the Crown, nor can [Page 52] be; because, forsooth, 'tis the ancient Remains of the Sovereign Power, and Prerogative of the Kings of England. Wherein, by the way, there is an Implication contrary to what he would infer; for this implies, that 'tis but the Remains of a Power diminish'd and impair'd. 3. His printed and parol Resolutions are not onely very diffe­rent, as is obvious by the Comparison, but very contrary:Account, p. 37. One says, 'Tis a dark Learning; the other, The Case is as clear as ever came before the Court.

3dly.Tho' his Insincerity is sufficiently evident from every part of his Defence, yet it may not be unprofitable for the Publick, that he should be follow'd to those Instances in which he glories; for which, 'tis not enough for him to shew some one Act wherein he is singular, if he follows the multitude to sin in others, even of the same kind; which if he does, he can no more acquit himself of Perjury and breach of Trust, Account, p. 1. than the rest of the tainted Herd.

Account, p. 28.In Matters of Blood, he affects the Reputati­on of great Tenderness, and thinks he has been scrupulous ev'n to a Fault: For, says he, in some Cases upon Statutes, that had been adjudg'd Felony by wiser and better Judges than my self, and it was highly for the King's Service that it should be so, yet I would never give Judgment of Death, because [Page 53] I could not satisfie my Conscience, that those Statutes were now in force. It is a Fault, it seems, not to give Judgment against his Conscience, when the narrow Interest of the Court exacts it, and other Judges, influenc'd from thence, would counte­nance it: But we may observe, that those Sta­tutes concerning Soldiers, The Case Crook Car. 51. & Hutton 134. is of one prest to serve beyond Sea. of which he is to be understood, not onely give no Warrant for such Judgment, as is obvious to the meanest Capa­city; but if they could admit of any Question, the unbiass'd Judgment of the then Recorder of London, Sir John Holt, ought to outweigh the whole Bench.

But I wish our Chief Justice could as well acquit himself in the Case of the Lord Brandon. The Fathers Heroick Merits of the Crown, too great to be rewarded, and the Son's Heredi­tary Valour, dangerous to those who had rea­son to fear brave Spirits, occasioned the rigo­rous Prosecution of both. The Father was oblig'd to change his Soil, till it might become more equal, not unmindful of our Saviour's Advice, or rather Precept, when persecuted in one country, to flee into another, that tho' he contemn'd Death, he might not provoke it.Witness the great endea­vours to make him confess a Plot, while he lay under Sen­tence of death. The Son fal­ling into their Hands, both his Life, and Honour, which the severest Trials approv'd to be most valu'd by him, were design'd for a Sacrifice. In [Page 54] subserviency to which, our Chief Justice directed the willing Jury to find him guilty of High-Treason, chiefly upon a suppos'd Conspiracy, to seise the Castle of Chester; which, if true, were but Felony by a Statute,Vid. 14 Eliz. c. 1. Rastal f. 411. as to that part, yet in force, and so could be no Evidence of Treason: Nor would he suffer the Fact to be found specially, tho he pretended not to answer the Cases and Records which were cited to shew, that the Matter alledg'd could not be Treason; nor did the then Sollicitor undertake the Task, notwithstanding that shew of Reason­ing, with which he labour'd to set aside the Au­thority of Lord Cook L. Russel's Trial, f. 57. Sol. To con­spire to levy War, is an Overt Act to testifie the Design of the Death of the King; and the Errour of my Lord Cook has possibly misled my Lord. This he goes to refute by the Cases of Story and Lord Cobham, which were not of levying War within the Kingdom, and besides were ex­press'd by the Overt Act of Writing. Vid. 3 Inst. f. 14. Hales his Pleas of the Crown, p. 13. Dyer, f. 298. b. Sanderson's Hist of K. James, f. 283., pleading expresly and unanswerably for that injur'd Hero, of whom the Age was not worthy, the Lord Russel.

Nor was the Proof in Lord Brandon's Case, less defective than the Matter; for besides the scandalous Sexton, who swore to Designs against another King, there was but one Witness in the Eye of the Law; he indeed so far Legal, as that he might be heard, being an Approver Lib. Assiz. 27. pl. 29. Of an Approver Shar'd, says, Il ne duist, passer sans estre duement purge car tout sont en male.; but no way credible, considering how far he had [Page 55] been drawn with his Fetters about his Heels, even to At Lord Russel's Trial, I am not cer­tain whether I did hear some­thing about a Declaration, &c. Trial, f. 39. At Mr Cor­nish's, è contra. contradict himself. The other by no means Legal, being under an Outlawry for High Trea­son, unrevers'd: For tho' the Execution of that Judgment, for so in Law it is, was pardon'd by the King, yet the Crime was by no means purg'd, to set him right to Fame: Which tho' the Counsel offer'd to make good, they were not suffer'd to speak to it; and yet the Point is very That such are not probi & legales, for Witnesses or Juries, vid. 2 Bulst f. 144. alias 154.1. Brownlow p. 34. part 2.47. Rolls. Ab. tit. Chal. 657. Brook tit. Tesmoins, pe­nult. Fitzher. tit. Process, 208. Dyer f. 34. a. Owen f. 22. Castle. main's Trial f. 38.11 H. 4. 41. b. God­bolt 288. Fortescue p. 60. b. Fleta lib. 4. c. 8. Bracton de Coronâ, cap. 3. p. 118. b. Rolls Ahr. tit. Prer. f. 222. Vid. de eodem Baluzium, Tom. 1. f. 887.2.362. clear by ancient Authorities, and confirm'd by later, without any thing really to the con­trary. Nay, farther, tho' besides all these things, another Matter was urg'd in Arrest of Judg­ment, upon which Judgment had Arundel's Case, 6 Rep. f. 14. formerly been arrested; yet, without enquiring whether the Fact were true, or the Book Law, that, with the rest, was over-rul'd, to come at the Life of a Person obnoxious to the Government, as some call'd themselves. Such was Sir Edward's great scrupulousness, and tenderness, where the Life of Man was concern'd.

He adds a Scruple, in a Case before himself, and the other Usurpers of the High-Commissi­on Court; but his singularity therein can be no Excuse for his acting at all upon a Com­mission [Page 56] apparently against the Statute, which took away not onely the Power of Fining and Imprisoning, which that Court illegally pre­tended to, but the Spiritual Authority which it really had;26 H. 8. c. 1. repeal'd 1 & 2 P.M. and such a Commission it was, as never receiv'd countenance till the Act, long since repeal'd, which not onely made H. 8. Head of the Church, but gave him Power, which he af­terwards delegated to Lord Cromwel, V. 31 H. 8. c. 10. to redress all Errors, Heresies, and Abuses, by Spiritual Authority.

4thly.I suppose it is by this time pretty evident, that Sir Edward's Crime will admit of no Exte­nuation; but the Aggravations are many, it appearing,

Account, p. 37.1. That he and his Brethren were the Inventers of this Dispensing Power, in such extent as he con­tends for in the Print; but much more in his real Resolution.

Vid. ib.2. That the Error was not an Error in that single Case, but of large and mischievous Consequen­ces; and if the King could dispense with that Sta­tute, upon the Reasons given, and Circumstances appearing in Sir Edward Hales his Case, others may well conclude from thence, That therefore he has a Power to dispense with all other Statutes, even such as confer or vest in any of the Subjects any manner of Interest whatsoever, in their Lives, Li­berties, [Page 57] and Estates;Account, p. 37. Vid. supr. p. 40, 41. and there being a Convicti­on, and consequently a Disability actually incurred before the Dispensation; therefore, by reason of this Case, the King may dispense with such Statutes where a precedent Disability is actually laid upon a Man, as there is upon the Members of both Hou­ses, till they have taken the Oaths and Tests prescrib'd. These are not Consequences which may flow from the heated Imaginations of angry Men, but such as have Warrant and Foundation from their Judgment.

3. His so far undervaluing the Wisdom of the Nation, as to make the benefit of a Law against the undue continuance of Sheriffs, equal, nay, go beyond what they could devise for the security of their Religion; or rather, so to un­dervalue the Holy Religion, which I think he yet professes, when however it would not come up to the Point, according to the Differences which himself receives.Account, p. 9. Speaking of the Statute 23 H. 6. c. 1. he says, The Recital in the Pre­amble, and the whole Purview, if compar'd with our Statute of 25 Car. 2. c. 2. equals it in every Particular, and in some goes beyond it: For the Mischiefs recited in this latter Statute, are onely in these Words, For preventing Dangers which may happen from Popish Recusants, and qui­etting the Minds of his Majesty's Good Sub­jects: The other,pag. 10. for preventing the import­able [Page 58] Damage of the King, and his People, by Perjury, Manslaughter, and great Oppression.’ Then he goes to the Purview, express against Non obstante's, and creating a Disability; but, according to his usual haste, he stays not here to make the Comparison, but hastens to his Sham-Resolution, as has been sufficiently evinc'd already. The Questions here will be, 1. Whe­ther the Mischiefs intended to be prevented, are equal in both? 2. Admit they were equal in Degree, whether they are in Extent; which if they are not, still the Resolution, if real, will fail him, according to the Difference which he him­self receives,Vid. sup. p. 43. of pro bono populi complicati, and singulorum populi.

1. For the first, I suppose he thinks the Epe­thite importable gives the odds, as if Popery wanted an Epethite to represent it to Protestants, for what they ought to do their utmost to pre­vent; as if it did not carry in the Belly of it Perjuries, Manslaughters, and great Oppressions, by whole-sale; or that Mischefs more remote, and accidental, as the Continuance of Sheriffs, may habituate to Corruption, and that occasion the other fatal Train; could equal the more imme­diate and certain Consequences, unless by good Laws prevented, of French Conversions, pro­ceeding from fixt Principles. But then to give [Page 59] Judgment to frustrate this necessary Law at a time when the Papists had a King of their own Su­perstition to head them, is to make the King as much above the Law,Bracton l. 2. c. 16. Rex ha­bet Superiorem, Deum S. item legem per quam factus est Rex, item Curiam suam, viz. Comites, Barcnes, quia Comites dicuntur quali socii, &c. Fleta l. 1. c. 17. p. 17.2. has Superiores. Which avoids the Cavil in the Royal Apol. ed. Anno 1684. p. 36. suppos'd to be Dr. Ashtons. as our ancient Lawyers tell us, the Law and his Court by way of Emi­nence, that is, the Great Council, or Parliament are above him.

2. As this proves the Interest of the Subject, in the Law about Sheriffs, to be neither equal, nor so immediate, as in our Statute, there needs not many words to shew the difference of the extent: the Peace only of particular Counties, and tha [...] by small insensible degrees, is there concern'd, nay, admit the King had this Power, and should so violate that Trust which Sir Edward will have to be repos'd in him, V. Account. p. 23. as to extend it to all Counties where he puts in the Sheriffs; yet this could not affect all the People, because there might be a Re­treat to London, Middlesex, and Westmorland, in neither of which has it been pretended, that the King had such a Power, till the late Violence of some, and Treachery of others, gave that un­happy Inlet of Perjury, Manslaughter, I may say, Murder and Oppression; before which, London was a perfect Goshen in an Egyptian Kingdom.

[Page 60]4. But what can excuse our Chief Justice's so apparent falsifying both Records and Law-books, or if not, at least, his shameful Negligence in not going to the Fountain-heads, but setting up the Recitals of Cases against the Cases themselves; and the extrajudicial Opinions or Arguments of Judges, nay, the very Annotations of Reporters, foreign to any matter in question, against solemn Resolutions; which either wilful Falsifications, or criminal Negligence, has occasion'd the an­swering Objections with a Case which never had a Resolution, but what he and his Breth­ren, gave when it was brought in by Head and Shoulders, onely to be a leading Case to this.

5. He could not but know, that the Case was faintly argued against Sir Edward Hales, either he, or the late Empson and Dudley, having given the Fees on both sides; wherefore 'twas comical for the Chief Justice to say, That the Case ap­pear'd clear upon the Argument; I am sure he is inexcusable, that when Causes of less Conse­quence, and of less dark Learning, us'd to be argued twice at least, this was but once; and the learned Mr. Wallop, who could have set it in the truest light, was refus'd to be heard to it, tho' he requir'd it.

V. Sup. p. 6.6. Our Chief Justice might easily have found, that the beginning of Non obstante's was within [Page 61] time of Memory, which would not be enough to entitle the King to a Prerogative:Plowden of Mines, f. 322.10. For as 'tis in Plowden, every Prerogative contains a Pre­scription, for it rests in usage; that is, such as are not deriv'd from known Grants of the People. And he might have learnt from that Great Man, whom he would fain draw to his side,Vaugham, f. 419. Nota, this was in a Case of less conse­quence the sending Pro­cess into Wales. That Presidents are useful to decide Questions, but in such Cases as these which depend upon fundamental Prin­ciples, from which Demonstrations may be drawn millions of Presidents are to no purpose.

Time of legal Memory is well known to ex­tend to the Reign of R. 1. and tho' Non Obstan­te's, as I observ'd above,Brook Pre­scrip. n. 6. Stat. West. 1.3. E. 1. c. 39. Stat. de quo Warranto, 18 E. 1. Prin's Animad. f. 133. are complain'd of with­in that time, as early as 35 H. 3. yet that dili­gent and faithful Searcher into Antiquity Mr. Prin, shews, That they were then made use of, only to revoke some indiscreet Grants or Priviledges, but not to elude, subvert, or dispense with any Pe­nal Laws, or Acts of Parliament, till they were in­troduced by religious Persons, after the Statute of Mortmain, 7 E. 1. to elude and frustrate the Act. And if this be true, I am sure thus far there is no Colour for the late Resolution; for they might have seen in Lord Vaughan, That the King in that Case dispenses only with his own Right, Vaughan f. 356. and concludes not the mean Lords.

[Page 62] Vid. è cont. Dr. Brady's compleat Hist. dedicated to K. James 2. Pref. All the Liberties and Priviledges the People can pre­tend to, were the Grants and Concessions of the Kings of this Nation, and were de­rived from the Crown. Foun­ded upon his suppos'd proofs that W. 1. obtain'd this Land by conquest, and govern'd it accordingly. V. Brady's first Book p. 23. in Marg. refuted in Jus Anglorum. Account p. 8.Tho' successive Resolutions of Judges are but Evidences of the Law, and such as are to be examin'd and rectified by the Constitution, and fundamental Maxims of the Inherent Rights, and Liberties of a free-born People: Yet if Sir Ed­ward had had the diligence to read what might have occurr'd on this Subject, or the Honesty to hear it from others, he might have known, that it is far from being a setled Point, That the King might dispense with particular Persons as to whatever is not prohibited by the Law of God; and that his Dispensation makes the thing prohibited lawful to be done by him that has it. The farther we look back since this Power has come in que­stion, the less does it seem allowed.

V. Sup. p. 5. V. Rolls ab. tit. Prer. f. 180. 34 E. 3. c. 21. Edward 3. with the Assent of that Council, which, as I observ'd before, was chose in Parlia­ment, had granted to Merchants Denizens, for a time, the same Liberty about Staple Com­modities which Merchants Aliens had; tho' this was not by the King alone, and for the Benefit of Natives, yet the Merchants fearing that they might be impeach'd in time to come for their ‘Merchandize which they had so pass'd by ver­tue of such Grants; for as much as they were made out of Parliament, for their Surety, obtain'd [Page 63] a Ratification and Confirmation in Parliament.

But the vexata questio was about licensing the shipping of Wooll elsewhere than at Calais;Nota, This is one of the Cases men­tioned by Fi­neux, Sup. p. 12. that the King might do this, the Pretence was speci­ous. Calais was no part of the ancient Demeasn of the Crown, but a new Acquisition, whose Interests the King seem'd to have more absolute­ly at his Disposal,Anno 1667. according to the Resolution of our Judges before the House of Lords, V. 3 Jac. c. 6. forbidding Trade to the Dominions of Spain. who de­clared, That tho' the Canaries were the Domi­nion of the King of Spain, they were no part of the Dominion of Spain. And if Sir Edward had taken notice of Lord Cook where he is against, as well as where he seems to favour him, he ought to have observ'd, That one Lyons a Merchant,3. Inst. f. 186. and Lord Latimer were sentenc'd in Parliament for procuring of Licenses and Dispensations for transporting of Wooll: And this they laid to the Destruction of the Staple,Rot. Parl. 50. E 3. n. 17, 24, 28. and of the Money of Calais, to the great Damage of the King and Realm: Indeed the year after, the Lord Latimer's Sentence is remitted at the Request of the Com­mons, alledging that the Charge against him was not true, not for defect of matter.51. E. 3. n. 75. So that here is a Judgment of the House of Lords in Point, a­gainst one of those very Cases; upon which Court, Judges have since founded their Distin­ction of malum prohibitum, & malum in se:V. Account p. 8. And [Page 64] it is an easie thing to know which ought to turn the Scale.

37 H. 6. f. 4.After this, it came to be a Question before all the Judges in the Exchequer-Chamber, Whe­ther this Offence being pardoned (which that the King might do after it was committed, has not been disputed) the Pardon before an Informa­tion brought, would defeat the Informer of his share. There the Court held, That if the Suit were the Parties, the Pardon should not bar him; but the sole Question was, Whether the Party was entitled to any Suit, being the Ad­vantage was given to the Discoverer,This notright­ly abridg'd by Brook tit. Charter de Pardon, n. 24.37 H. 6. f. 5. a. adjornatur. which he might have by a Suggestion in the Exchequer, but the Statute gives no Action; however this receiv'd no Determination at that time.

But if the Question had then been of a Dispen­sation, and whether that would bar the Infor­mer's Action given by Statute, can any man doubt but that they would have adjudg'd it could not? When notwithstanding a Pardon, and that in a Case where an Action was not ex­pressly given; yet it was so doubtful, that they would not determine against the Informer; but that the Dispensation would not have avail'd with them, or at least, they would not have lookt upon it to authorize what was prohibited by any Statute, appears from other Passages there; as [Page 65] where it is said,37 H. 6. 46. V. 5 E 4 f. 34. a. Where a Statute con­cerns only the King himself, which the King may chuse to use at his Will, &c. That in a Recognizance of the Peace (which is not confin'd to one entered into at the request of a Subject) the King cannot pardon, or release, till the Peace is broken: And where a man ought to repair a Bridge, the King can pardon only for the Fine due to himself; but however, the Party shall be obliged to re­pair the Bridge, because this is to the Damage of all the People. And to the same purpose is that 3 H. 7. that tho' the King may pardon,3 H. 7. f 15. b. Chief Justice Hussey citing Fortescue. or free from a pecuniary Mulct before the occasion happen, yet he cannot pardon, or discharge the Trespass it self; and instance is given in voluntary E­scapes: So far were they from believing, that the King in remitting the pecuniary Mulct, could make the thing lawful; nor could this in the least be inferr'd from the other, because however an Act may be made void or tortious. Indeed in the Reign of R. 3. whose Character blemishes the Judgments of his time,2 R. 3. f. 12. it was held by all the Judges in the Exchequer-Chamber, that the King might license the shipping of Wooll elsewhere than at the Staple; yet even they were not of O­pinion that the License made the thing lawful, for then the Discoverer could not have had his share, which they agreed that he ought to have; and so the License was only as far as it con­cern'd the King. They also setled the other [Page 66] Point,If any one doubt this up­on the words of the Book, it appears be­yond contra­diction from its being brought about again by the Merchants whose Goods were seized. 1 H. 7. f. 2. b. & 3. a. V. Sup. p. 13. which before was a Doubt, That a Pardon before an Information brought, would defeat the Informer. But then the Authority of the first Point is suspended, by a Doubt remain­ing before all the Judges afterwards assembled upon a rehearing of this Cause in a more setled time. Indeed they agreed the other of an In­formation after a Pardon, but hitherto there is no manner of Proof of any Case, wherein the King by his Dispensation could discharge the Pe­nalty given not only to himself, but also to an Informer, who has his Action given by Statute: But for this we must take a Leap downwards as far as 13 Jac. 1. which we may ballance with the 7th. of his Reign,3 Inst. 154. when it is held by Lord Cook, ‘That where a Statute concerns the Bene­fit of the King alone, he may dispense with it by a Non obstante:’ And BY THE COURT, that where it concerns the Benefit of the Subject, the King cannot dispense. Rolls Ab. tit. Prcr. f. 179.

7. Whereas our Chief Justice thinks that a Statute's providing against Non obstante's, shews that the King could otherwise have dispens'd with the Act by a Non obstante;Account p. 10. it is not onely unconcluding, because it might be no more than an Argument of an Abuse of the Law; but turns very strong against him:V. Sup. p. 36. For, admit the Resolution of the Judges, 2 H. 7. were as [Page 67] he contends, yet he, who makes so much of a Concession of the Commons of England assembled in Parliament, when he thinks it of his Side,Account, p. 25. ought surely to yield that the Judgment of King, Lords, and Commons, is of uncontrollable Authority. Wherefore when not only one, but several Par­liaments provide, that all Non obstantes shall be void, is it not plain, that their Judgment was, that such Non obstantes could not be set up by any Resolution of Judges? And for this we have the Judgment of King, Lords, and Commons, and that of but late days, That even where a Grant is made to the King, where 'twill be said he is solely entrusted for the Publick Good, yet it may be out of his power to defeat it by a Non obstan­te. According to Kieble, c. 7. but not print­ed there. This appears by the Statute 19 Car. 2. c. 8. which provides, ‘That no Letters Patents granted to any Person, of Exemptions from Subsidies, &c. shall free them from the Char­ges of any Sum granted by that Act; and all Non obstantes in Letters Patents made, or to be made in bar of any Act or Acts of Parliament, for the Supply or Assistance of his Majesty, are thereby declared to be void and of none effect.

And even where Statutes have not expresly provided against Non obstante's, tho' the Statutes were such as restrain what many take to be the King's Prerogative, yet if we receive the Sense [Page 68] of Lords and Commons, the King has no Prero­gative warranting Non obstante's to them; as ap­pears by the Articles against King Richard the Second,Vid. the Stat. barely prohi­bitory. 28 E. 3. c. 7. & 12 E. 3. c. 9. supr. p. 16. V. Knighton. one of which is, For that the King, con­trary to the Laws, and Wills of the Justices, suffer'd Sheriffs to continue longer than one Year, &c.

This were enough to set aside all Pretences taken from Calvin's Case, tho', as Sir Edward Herbert pleasantly suggests,Account, p. 18. it were resolv'd there, That that was resolv'd 2 H. 7. which was never mention'd till after the Resolution. Here is the Authority of Lords and Commons, in com­petition with that of Mercenary Judges: And if the Concessions of the Commons alone assembled in Parliament, Account, p. 25. are of weight with him, I know not why their Denials ought not as well to be urg'd against him; which if we may do, not onely the Fictions and loose Reasonings in Calvin's Case,See them cen­sur'd in Vaughan, f. 227, 285, 401. but the main Resolution there, may be justly call'd meer Court-Law. Such I am sure it is,Moor a. f. 790, to 805. that the honest House of Commons, 4 Jac. 1. would not bear it; and any one that reads the Arguments of those Learned Men who ma­nag'd the Conference with the Lords, upon the Question of the Union of the two Kingdoms, may easily see how inexcusable the Judges of that time were, to proceed to the Judgment in Calvin's Case, after they had been so enlightned. [Page 69] Nor could they but know, that the then Parli­ament was broke up, because they were not so complying, as the Judges shew'd themselves both then and afterwards: But they secur'd their Cushions by it, while Sir John Bennet, Vid. his Cen­sure. 4 Inst. f. 336. Fa­ther of the present Lord Oswalston, lost his in the Prerogative-Court, and had a swinging Fine im­pos'd upon him into the Bargain, several Years after, upon pretence of Extortion; but, as I am well inform'd, the real ground was, his disrel­lishing Speech in Parliament upon this Subject. 'Tis well known, some Princes us'd to have good Memories that way. Manet altâ mente repostum, &c.

8. Non obstante's having no other Foundation than in the Encroachments of Princes, and Ser­vility of Judges, especially if we except Cases concerning the King alone, they ought not to be strain'd to any new Case: The Advice of Bracton will rise up in Judgment against such Men, who tells them,2 Inst. f. 408. Bracton, l. 1. c. 2. Si autem talia nunquam prius evene­rint, & obscu­rum & diffici­le sit, eorum judicium tunc ponantur judi­cia in respe­ctum usque ad Magnam Curiam. Vid. 1 E. 3. 7. b 33 H. 6. 18. a, Cest un Act de Parlement & nos voilomus estre bien avis devant que nous adnullamus ascun act fait en le Parlement & peradventure le matter doit attender jusque al prochein Parlement. ‘If such things never hapned before, and the Judgment is without Light from former Cases, and difficult, let it be adjourn'd to the Great Court. According to which, Adjournments to ensuing Parliaments have been frequent in former days, when there [Page 70] were more Learned Judges, and that as often for the weightiness of the Matter, as intricacy of the Points.

Account, p. 34.9. But for the closing Aggravation; Whereas our Chief Justice denies all indirect means for pro­curing Opinions, and stands upon his Innocence, chal­lenging the World to lay any thing of that kind to his charge; I think, by this time, few will the less suspect him, because of his Assurance: if ei­ther Threats or Sollicitations can be prov'd up­on him, the World will judge either of them indirect Means; and I am much misinform'd, if both cannot be justly charg'd.

If after all, he can excuse himself with re­nouncing Infallibility, Account, p. 35. pag. 36. and making Asseverations of keeping to the clear Dictates of his Conscience, I must say, Judges in former Ages have had hard luck, and been made Examples to little purpose.V. Mirrour, a. p. 296. to 300. King Alfred would lose the Reputati­on of his Justice, in hanging above thirty Judg­es; and Parliaments have been very barbarous to proceed against others as Traytors, who yet either were so ingenuous to confess their Faults, or, at least, not so provoking as to justifie them.

Tresylian, Bealknappe, c.It is well known in Story, that six Judges, and two of the King's Council at Law, suffer'd for Treason, upon a Parliamentary Prosecution, 11 R. 2. for delivering their Opinions, That [Page 71] they were to be punish'd as Traytors, Knighton, f. 2726, 2727. ib. f. 2695. Regaliam. Ib. f. 2694. who hindred the King from exercising his Soveraignty and Pre­rogative over a Statute, and an Ordinance, and Commis­sion made in the foregoing Parliament: The sub­stance of their Crime lay in ascribing to the King a Power to defeat the Provisions of the Parliament for the safety of the Nation, and is a direct President, at which our Judges ought to tremble. Nor can it avail them, that the express words of the Statute 25 E. 3. c. 2. do not condemn them, since that Act transmits Com­mon-Law Treasons to the Judgment of Parlia­ment, and the Statute 1 Mar. c. 1. leaves that power untouch'd; and who can doubt but such a Re­solution, and that justified in Print, and publish­ed to the World, is an overt Act of Treason, as it tends to the subverting the Fundamental Rights of Parliaments: Nor can they have any co­lour for asking, with the Lord Strafford, Where is the Buoy? when they see so many Shipracks to admonish them.

Nor ought Sir Edward to wonder at a Treason against the Government, tho' not directly a­gainst the Person of the King, his Relatives, Officers, or his Coin; nor yet an actual levying of War within his Kingdom,V. Glanvil. p. 1. Crimen laesae Majestatis, ut de nece vel se­ditione personae Domini Regis vel Regni. Exact. Collect ed. Anno 1643. p. 35. V. Dugdale's cron. Ser. or adhering to his Enemies; for he may find among the Ar­ticles [Page 72] against the Lord Kimbolton, and others, exhibited Anno 1641. by his Father then Attor­ney-General.

‘That they have traiterously endeavoured to subvert the very Rights and Beings of Parlia­ments.

Account, n. 33, & 39.But since Sir Edward pleads Conscience for what he did, and might have urg'd the Authority of Spiritual Guides, who would make the Scripture notion of higher Powers a sufficient Warrant for such a Judgment. I shall conclude with the good Queen Elizabeth Doctrine of the famous Bilson, afterwards Bishop of Winchester.

Bilson of Christian Subjection, p. 280. ‘By Superior Powers ordain'd of God, we understand not only Princes, but all politick States and Regiments, some where the People some where the Nobles have the same Interest to the Sword that Princes have in their King­doms: And in Kingdoms where Princes bear rule by the Sword,Glanvil. Prol. Bracton, v. l. 3. c. 9. Fleta lib. 1. c. 17. Fortes­cue, c. 9. Mirror, p. 9. we do not mean the Prin­ce's private Will against his Laws, but his Pre­cept derived from his Laws, and agreeing with his Laws.

FINIS.

Publish'd by this Author.

A Poetical Essay towards an Epitome of the Gospel. Ed. Anno 1678.

Jani Anglorum facies nova. Anno 1680.

Jus Anglorum ab Antiquo. Anno 1681.

King Edward the Sixth against the Pope's Su­premacy, with Remarks on his Life. Anno 1682.

Lord Hollis his Remains. Dr. Twisden's Consi­derations touching the Grand Question: With Refle­ctions upon Antidotum Britannicum, and Mr. Hunt's Book and Postscript. Anno 1682.

Anonymus his Letters to Dr. Sherlock, concern­ing Church-Communion: With a Reply to his Answer. Anno 1683.

A Letter of Remarks on Jovian. Anno 1683.

A true Account of the Unreasonableness of Mr. Fitton's Pretences against the Earl of Macclesfield.

Grotius his Arguments for the Truth of the Chri­stian Religion, in Verse: With an Appendix concern­ing Prophecies. Anno 1686.

The Idea of Christian Love, and Paraphrase on Mr. Waller's Poem of Divine Love. Anno 1688.

Ready for the Press,

A Supplement to Dr. Brady's Introduction, and Compleat History.

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