Considerations touching the great question of the King's right in dispensing with the penal laws Written on the occasion of His late blessed Majesties granting free toleration and indulgence. By Richard Langhorn, late of the Middle Temple, Esq;

CONSIDERATIONS TOUCHING The Great Queſtion OF THE KING'S RIGHT In Diſpenſing with The Penal Laws.

THoſe who aſſert the Affirmative in this Queſtion, do premiſe theſe following Rules or grounds, which they take to be ſo clear, either from right Reaſon, common Experience, or the Traditional Common-Laws, which are handed to us by ſuch Reſolutions of the Ancient Sages of our Laws, as are found in our Law-Books; That if they be refuſed by any, the Title of Principles, yet they are eaſily proveable to Lawyers to be of the like nature with Principles, in that Science which moſt properly judge of this Queſtion.

I. That there is a difference between Malum in Se, which is in its own nature an Offence, and Malum Prohibitum, which being in its own nature Indifferent, comes only to be an Offence becauſe ſome Law makes it ſo. 11. H. 7. fol. 11.13. H. 7. f. 8.

II. That no Power upon Earth can give Licenſe for the doing or diſpenſing with the doing of what is Malum in Se, Malum Prohibitum may be Licenſed. Cooke Lib. 12. fol. 30.

Note Suſpenſion, Diſpenſation and Licenſe, do in this Queſtion ſignifie the ſame thing.

III. That the King cannot Repeal, or totally make void, a Law by his own Single Power without a Parliament.

IV. That Diſpenſation (whether it relate to the Generality, or to particular Perſons only) is no other thing, than barely a Relaxation, Toleration, or Licenſing of a Malum Prohibitum for a time, with reſpect to Advantage or Neceſſity. This is the definition given Cooke lib. 11. fol. 88. in the caſe of Monopolies:

V. That the End of every Law, and of all Laws Civil, and Temporal, is Bonum Publicum, and Salus Populi: And therefore when any Law made, is found at any time to contradict that End, every ſuch Law muſt at that time be voyd in its ſelf, or there muſt be a Power ſomewhere to ſuſpend or diſpenſe with ſuch a Law, for ſo long time as it appears to contradict that End for which ſuch a Law was made; for res nolunt male Agi: And the Common-Good and Safety of the People muſt and will be preferred.

Note that this is ſo ſure a Principle, That even Magna Charta it ſelf, the greateſt Darling of all our Laws, hath always given way to it. And therefore though our Kings have reſtrained themſelves by that Law, generally from putting any Impoſitions upon Merchandiſes to be Imported or Exported; Yet our Judges have reſolved, That for the Common-Good, the King may Controul and Suſpend this Law, as in Caſe of an Impoſition put in foraign Parts upon our Merchandiſes to the prejudice of our Trade, the King to enforce an abatement there, and to make an Equality for the Advancement of our Trade, may put Impoſitions upon their Merchandiſes here. So alſo, Though by Magna Charta it be generally free for every Perſon, with any Comodity, not expreſly prohibited by ſome particular Law, to go out of England in Order to Trade, yet the King may in the time of War, reſtrain all Merchants from going out of England, or in the time of Dearth, from Exporting ſuch Comodities (otherwiſe not prohibited) of which there is a Dearth in England. Coke lib. 12. fol. 33.34.

VI. That Neceſſitas eſt Lex temporis, Neceſſity is it ſelf a Law, whenever it happens, and for the time that it continues, it is Abſolute and above all Laws. This Law commands that Authority, which hath the Right of Diſpenſing with Laws, to exerciſe that Right, And if That Authority will not do it, This Law called Neceſſity will it ſelf exerciſe that Right. Coke lib. 12. fol. 34.

Note when Neceſſity requires, not only the King, but every Subject may come upon my Land and make Trenches, and Bulworks there, for defence againſt an Enemy, or pull down the whole Suburbs, or any part of a City for the ſame end, or pull down or blow up any Houſe or Houſes in a Town, to ſecure the reſt from Fire: Notwithſtanding all the Laws made for the preſerving of Property. Coke lib. 12. fol. 13.

VII. That it is impoſſible for any Law-makers, who are mere Men and no more, & who have no Pretence to a perpetual Divine Aſſiſtance in the making of Laws, to fore-ſee all particular Miſchiefs and Inconveniencies, which may happen in particular Circumſtances, by or from the making of any Particular Law. Coke lib. 11. fol. 88.

VIII. That for the Reaſons before-mention'd, of the Impoſſibility in Law-makers of fore-ſeeing all Accidents, and Emergencies, and for complying with Neceſſity, and providing for Publick-Good in all Occaſions, and the taking Care of the Safety of the People, there muſt be ſome Power always in being, to Suſpend, or Diſpenſe with ſuch Law, or Laws, as Publick-Good, the Safety of the People, or emergent Neceſſity require, at any particular Time, or in any particular Circumſtances, to be Suſpended or Diſpenſed with.

IX. That the Power of Diſpenſing with Malum Prohibitum, is of Right, and by our Law, in our Lord the King. Coke. lib. 11. fol. 88. For when a Penal Statute is made for the Publick-Good, the King (as the Head of the Publick-Good, and the Fountain of Juſtice and Mercy) is by the whole Realm intruſted, and particularly as to the Power of Diſpenſing with it. Coke lib. 7. fol. 36.

X. That this Truſt, and this Power of Diſpenſing with Penal Laws, are inſeparably united unto the Royal Perſon of the King, That he cannot transfer, give away, or ſeparate the ſame from himſelf; conſequently it is inherent in his Royal Perſon, that is, in his Crown. Coke lib. 7. fol. 36. Reported as the Reſolution of all the Judges of England.

XI. The King cannot by his Grant, nor yet by Act of Parliament, Bar himſelf of any thing which is inherent in, and inſeperably annexed unto his Royal Perſon, for that in ſo doing he ſhould ceaſe to be King, and conſequently Change and Subvert the Government, which our Law allows not.

Note this is proved in ſubſtance by 2 H. 7. fol. 6. Cited and Agreed in Calvin's Caſe, Coke lib. 7. fol. 14. The Caſe was thus: In the Statute 23. H. 6. Cap. 8. it was Enacted under great penalty, That none ſhould ſerve the King as Sheriff of any one County above one Year, And that if the King, by any Non obſtante, ſhould diſpenſe with that Statute, ſuch diſpenſation ſhould be void. Yet it was Adjudged, That notwithſtanding that expreſs Clauſe, and even againſt it, the King might diſpenſe: And the reaſon given was, Becauſe the King had a Right, by the Law of Nature, as King, to the Service of his Subjects. And ſuch Right, being inſeperably annexed to, and inherent in his Royal Perſon, that Act could not Bar the King of the Service of his Subjects; Every Subject being bound by his Natural Legeance to ſerve the King.

XII. That (therefore) when ever the King, to gratifie a Parliament, doth Conſent in Parliament to any Law, by which he ſeems to ſtrip himſelf of, or depart from, any Prerogative, or Right, which in truth is inſperable from him as King; Or when the King in Parliament, or otherwiſe by any Declaratory Words or Speeches, ſeems to relinquiſh ſuch Right; ſuch Conſent to ſuch Law, is no more than an Agreement on his part, not to uſe that Right ordinarily; but only in Extraordinary Occaſions, when in his Princely Wiſdom he ſhall find it neceſſary, and for Publick Good. But this Bars him not to uſe this Right again, when he ſees juſt cauſe ſo to do, nor can any declaratory words ſpoken by the King, or his Aſſent incerted into an Act of Parliament, Eſtoppe the King in any Caſe of this Nature.

This Ground being eſtabliſhed, all the difficulties touching Parliaments endeavouring to entrench upon the Crown, and the frequent Charges of Breach of Promiſes imputed to our Kings, are ſolved and fall to nothing, nor will there be any more uſe of that Engine, made uſe of ſo unhappily by the late Uſurpers, of wounding the King, through the pretence of removing Evil Counſellors, when ever the King ſhall think fit to reaſſume his Right in Extraordinary emergent Occaſions, after having agreed by Act of Parliament, or by any other publick way, not to make uſe of that Right ordinarily. It being clear upon this Ground, That a Parliament, offering a Bill to the King, which ſeems to take from him ſuch a Right, hath not in Truth any Deſign in it to prejudice the Crown. For then a Parliament ſhould do wrong, which the Law allows not to ſay, nor is ſuch a reaſſuming the Exerciſe of ſuch a Right, a Breach of Promiſe in the King; but a making uſe of the Condition implyed in his Agreement, as to ſuch a particular Caſe, and in ſuch preſent Circumſtances: Otherwiſe the King ſhould be ſaid to do wrong, which our Law alſo forbids us to ſay. And all thoſe Judgements and Reſolutions of our Judges, which confirm it to us, That the King hath ſuch Rights, and which have allowed the Exerciſe of ſuch Rights (notwithſtanding Acts of Parliament) would be infringed, and become Erronious, and conſequently the whole Frame of our Laws unſettled.

Theſe Rules before layd, or ſome other of the like nature, which thoſe who are learned in our Laws agree upon among themſelves, have been of ſo great force, that in all Ages, thoſe who have been otherwiſe the greateſt Oppoſers of the Prerogatives of the Crown, have nevertheleſs always Agreed, That the King hath a Power inherent in him, and inſeperable from his Royal Perſon, to diſpenſe with Penal Laws, as to particular Perſons. But ſeveral do deny, That His Majeſty hath any Power in himſelf alone, to diſpenſe in general, with a Penal Law; or to ſuſpend in general the Execution of ſuch a Law: Though others do very ſtrongly Affirm His Majeſty to have this Power, and do conceive, that upon the Grounds before laid, all Objections which are commonly urged againſt this Power, are clearly Anſwer'd and prevented.

Thoſe who maintain the Affirmative in this Point, do at all times declare, That their Affirmative is not intended of a General Power, in the King, to ſuſpend all Penal Laws in general, at his pleaſure, to the prejudice of the Publick, and without juſt Cauſe: Such a Power being againſt the Grounds before laid, and never claimed by any King of England. But that which they affirm is of a Right bounded within the true, juſt, and agreed Definition of a Diſpenſation, mention'd as the fourth Ground before aſſerted. And therefore when they diſcourſe the point, they ſtate and divide the Difficulty into theſe following Quueſtions. (viz.)

Queſt. I. Whether the Legiſlative Power may not poſſibly make ſuch a Law, as in reſpect of Time, and other Circumſtances, impoſſible to be foreſeen, may prove inconvenient to the whole Kingdom, or a great part of it? And if the Affirmative in this Queſtion be True, which they hold, Then

Queſt. II. Whether in caſe of ſuch a Law made, is there not ſome Power, and is it not abſolutely neceſſary there ſhould be ſome Power, always Viſible, and in Being, to diſpence with, and to ſuſpend the General Execution of ſuch a Law, Neceſſity and Publick, or General Good requiring it? In this they alſo hold the Affirmative, which if it be True, Then

Queſt. III. Whether this Power be in the King, or any where elſe, And where elſe? Or whether it be in the King, with ſome other, And with whom? And in this they hold That it is in the King ſolely.

For Proof of their Affirmative to the firſt Queſtion, they ſay

I. It is proved by the Seventh Ground before layd. II. By what is obſerved upon the Fifth Ground, even Magna Charta rigorouſly inſiſted on, according to the Letter of it, would be inconvenient, and againſt Publick Good. III. There are many Ancient Penal Laws, which though never Repealed, yet are not put in Execution. Becauſe though Neceſſary when they were firſt made, yet now Obſolete in reſpect of Time, and other Circumſtances, not foreſeen, and impoſſible to be foreſeen, when the ſaid Laws were made. IV. It is ordinary for the Legiſlative Power in all Ages, to make ſeveral Penal Laws meerly temporary, and experimentally, to the end that Experience may ſhew whether they may conveniently be continued or not. V. The late Acts of Parliaments made, for Encouragement of Navigation, and touching Cart-wheels, being Penal Laws, made by this preſent Parliament, does clearly prove this point. The firſt had Inconveniencies not foreſeen, and only appearing when we made War; The other had ſuch Inconveniencies not foreſeen by the Law-makers; that had it been put in Execution, all our Inland Trade had been deſtroyed.

For Proof of their Affirmative to the Second Queſtion, they ſay

I. It is proved by the Fifth, Sixth, and Eighth Grounds before layd. II. To deny this, would be to Charge our Laws with the higheſt defect imaginable, for to grant (as they do) That the Law hath provided a Fountain of Mercy always viſible and in being, to take care of private and particular Perſons, and to diſpenſe with Penal Laws, as to ſuch, when Neceſſity requires, and to deny that the Law hath provided any Fountain of Mercy always viſible, and in Being, to take Care of the Publick, and to provide for the Safety of the People when Neceſſity requires, would be to charge our Law with a greater defect than ever any yet charged it with. III. That if no ſuch Power had been, all Navigation as to Trade, muſt have totally, or at leaſt for a great part have ceaſed during this preſent War for want of Mariners, and all our Inland-Trade muſt have ceaſed from the time of the making of the Act touching Cart-Wheels for want of Carriages; and De Witts deſigns (for ought we know) might have been effectual to have engaged us in a New War at home, and to have Provoked our Non-Conformiſts into a Rebellion (in which they would moſt certainly have been aſſiſted with all neceſſaries from Holland) for the reſcuing themſelves from the Inconveniencies which they pretend they lye under, from the Penal Laws made againſt them, if there had not been a Viſible Power in Being, to avoid the Danger then threatning us (and not foreſeen by the Lawmakers) by ſuſpending the Execution of thoſe Laws.

For Proof of their Affirmative to the Third Queſtion, and what they hold therein, they ſay

I. It is proved by the Ninth, Tenth, and Eleventh Grounds before layd. II. There is no other Power always viſible, and in being, which doth or can pretend with any colour of Reaſon, to have this Right, beſides the King alone. III. To place this Power in any other, without the King, would be to make that other, King. And to place it any where, then in the King alone, ſo as to make ſome others to be ſharers in this Power, were to make thoſe others, to be ſharers in the Higheſt Act of Soveraignty, and conſequently ſharers in the Crown; which would be wholly to change our Government, and to alter our Laws, and conſequently to ſubvert all our Liberties and Properties, which cannot be ſafe, if any Principles be admitted in alteration of our Laws, and Government. And it is for this Reaſon, that the King cannot commit the power of his Mercy, concerning any Penal Statute to his Subjects, Coke lib. 7. fol. 37. IV. Our Kings have always uſed this Power, and our Judges approved the Exerciſe thereof to be agreeable with our Laws, as is proved in the Grounds before layd. And though it be true, that ſome Ancient Laws ſeem ſuſpended by a diſ-uſance, and a ſeeming tacite Conſent of the whole Kingdom, King, Judges, and People, yet that was in truth the ſuſpenſion of the King alone. For thoſe Laws were (when once made) the King's Laws, and the King was the only Perſon truſted with them, he might have put them in Execution, and commanded his Judges to ſee them put in Execution, if he had pleaſed, and his Judges would not have taken upon them to ſay, That they the Judges, or, That the People, had thought fit to ſuſpend them by common conſent, and therefore they, ſtood Suſpended.

In ſhort, thoſe who do maintain theſe Affirmatives, in all theſe Queſtions, and inſiſt upon the Grounds, and Rules before layd, do, for farther clearing of the matters in debate, humbly offer the following Caſes to Conſideration, as concieving the Solutions of them may ſettle the Point.

I. Suppoſe a Diſtreſs taken upon that Branch of the Statute of 14. Car. 2. cap. 6. which relates to the breadth of the Weels of Carts, and Waggons, and the Execution of which Branch was ſuſpended by His Majeſties Proclamation, Would the Judges juſtifie this Diſtreſs or not? If they did, in purſuance of the Statute, and diſ-ailowance of the Power of Suſpenſion, the Conſequences would be, That they would hereby deſtroy the greateſt part of In-Land-Trade of the Kingdom. If they did not allow the Diſtreſs; but agree the Act to be lawfully Suſpended by the King's Proclamation, iſſued forth in a Caſe where ſo great a Neceſſity required, for the Publick Good: Then all the three Affirmatives upon the aforeſaid Queſtions are ſettled, with this Addition; That the King may diſpenſe with a Malum Prohibitum, though it be (as it is in the Caſe put) adjudged by Act of Parliament a Common Nuſance; And may diſpenſe with a Penal Law, though the Forfeitures (as they are in the Caſe put) be not given to the King, but to others, as in this Caſe, to the Surveyors of the High-Ways, the Poor, and the Proſecutor. But if the Judges in this Caſe, as it is here put, to avoid the difficulty, ſhould refuſe to allow the diſtreſs upon ſome other Reaſon, as rather taking upon themſelves to adjudge the Act of Parliament, as to this particular Branch, to be void, then to allow the King to have Power to Diſpenſe with what an Act of Parliament adjudgeth to be a Common Nuſance; though the whole Kingdom believes that his Majeſties ſaid Proclamation, was the ſole Cauſe, why there was never any Execution of that Law: And that no man was ever proſecuted upon that Branch, becauſe all men generally admitted that the King had diſpenſed with it, and had a power ſo to do; And conſequently, That the Judges never had an Opportunity to Repeal it, by their Judgment: yet if the Judges ſhould in this Caſe proceed this latter way, or any other way, rather then to Affirm the King's Right (for Reaſons beſt known to themſelves) there would be then no more gained by this Caſe, then, A Law may be made by the Legiſlative Power, which may be very inconvenient to the whole Kingdom, And that in ſuch Caſe, there muſt neceſſarily be a Power ſomewhere, either to ſuſpend its Execution, or to Repeal it totally by adjudging it to be Void.

And then the next Caſe proceeds thus:

II. Suppoſe a Law made under the penalty of 100 l. to the Proſecutor to his own Uſe, That none ſhall ſerve His Majeſty, either in his Navies at Sea, or in his Armies at Land, or bear Arms in the Militia in any County, except he firſt take the Oaths of Supremacy, and Obedience; And take the Sacrament of the Lord's Supper according to the Form uſed in the Church of England: And Abjure Tranſubſtantiation. This Law being made; Suppoſe France and Holland ſhould Unite their Forces, and make a preſent War upon His Majeſty: And (the more to diſtract us and raiſe Diviſions amongſt us) ſhould publiſh their Placaet, and promiſe a general Toleration, to all in England, in point of Religion, and the Enjoyment of their Ancient Laws; if the People of England will ſit ſtill and not take up Arms; many in England who are willing to Aſſiſt the King in this Exigency, dare not bear Arms becauſe they cannot comply with what the aforeſaid Law requires. Many who can comply with this Law, refuſe to comply, and conſequently pretend they cannot comply, and therefore that they dare not bear Arms. But their true Reaſon is, That they know they can have no Toleration in the buſineſs of Religion, ſecured unto them by the King; And they hope the Enemy, if they overcome, will for their own Intereſt (at leaſt) make good their Promiſe. The reſt of the Nation are not able to Defend the Kingdom. Now it is demanded of the Judges: May the King in this Exigency, Diſpenſe with this Law, and ſuſpend all the Penal Laws in caſes of Religion: And hath the King a Right to do this? If he cannot, Then clearly the Crown and Kingdom muſt be Loſt, becauſe our Law is in ſo great a Point defective. If the King hath Right to do this, tho' no part of the Penalty be by this Law to the King, but all to the Informer; Then, put the ſame Caſe yet farther, And ſuppoſe the Malum Prohibitum in this Law, were by this Law adjudged and declared to be a common Nuſance: Nay ſuppoſe it were adjudged to be Felony or High Treaſon. Hath the King in ſuch Caſe, a Right to Diſpenſe, and is not the King the ſole Judge in this Caſe of the Neceſſity, and of the Publick Good? Or is the King to Call a Parliament of neceſſity to judge in the Point, and ſo hazard the Ruin of the whole in expecting the meeting of a Parliament? Or muſt he Conſult the Judges, and be bound by their Opinions in ſo great an Affair of State, Neceſſity, and the Publick-Safety? It is conceived the Reſolution of this Caſe will put an end to the whole Doubt.

Againſt theſe Affirmatives, ſeveral Objections are uſually made, which are Anſwer'd thus:

Object. I. That the King by his Coronation Oath, and by ſeveral Promiſes, hath pleaſed to bind himſelf to maintain all the Laws. And ſince all men agree, That Almighty God can bind himſelf by his Promiſes, it is unreaſonable to ſay the King cannot bind himſelf.

Anſw. I. This Objection if it proves any thing, proves too much, for it is as ſtrong to take away the King's Power of Pardoning, or of Diſpenſing with a Penal Law, as to a particular perſon, as to take away his Power of Diſpenſing in general. But the Objectors Grant, That the King hath the former Power inherent in him, notwithſtanding theſe Promiſes, and Oath, and that no Conſtruction ſhall be made of them, to bar him from Pardoning, or from Diſpenſing with particular Perſons; therefore no Conſtruction ſhall be made of them to Bar him from Diſpenſing generally. Secondly, There is no Conſtruction to be made of any Promiſe of God, to bind his Divine Majeſty to ceaſe to be Good and Merciful; Becauſe thoſe Attributes are of his Eſſence, and ſuch a Promiſe, would amount to a Promiſe to ceaſe to be God, which God cannot ceaſe to be, and therefore cannot be intended to bind himſelf to ceaſe to be. So neither ſhall any Conſtruction be made of any Oath, or Promiſe of the King, to bind the King to ceaſe to have the Power of Mercy, becauſe it is of the Eſſence of the King: And it would amount to a binding himſelf to ceaſe to be King, which he cannot bind himſelf to ceaſe to be. Thirdly, This Right of Diſpenſation is a Law in its ſelf, and ſo neceſſary and fundamental a Law, in order to the Publick Good, That without it, and without the Exerciſe of it, when the Common Good requires it to be Exerciſed; The Kingdom cannot be, and the King's Prerogative is Law. Therefore the King's Oath and Promiſes to maintain the Laws, bind him to maintain and exerciſe this Right. And to put ſuch a Conſtruction upon the ſaid Oath and Promiſes, as ſhould bind the King not to uſe this Right, were to bind the King to Break and to Violate the Laws, and to neglect the Safety of the Kingdom. Nay, for the King not to exerciſe this Right, would be to Violate his Oath and Promiſes, and to break the Truſt repoſed in him, by the whole Realm, when they make a Law and entruſt him with it, as the Fountain of Mercy, and Head of the Publick Good: And to fruſtrate the Chief End of all our Laws. Fourthly, The Objection is therefore grounded upon a miſtake of the Queſtion; For no man will or dares ſay, That the King is bound to enforce the Execution of a Penal Law, to the prejudice of the whole Kingdom, or of a very notable conſiderable part of it.

Object. II. That all the Judges, and all who are in the Commiſſion of the Peace, are Sworn to put the Laws in Execution; But if the King ſhall be ſaid to have this Power, he ſhall have it in his Power to make all theſe Perjur'd.

Anſw. I. This Objection, as the former, makes as much againſt the King's Power of Diſpenſing as to particular perſons, as againſt the Power now affirmed, and ſo it fights againſt the Objectors allowed Opinion, and proves nothing. Secondly, The Right, and Prerogative in diſpute is a Law, ſo they are bound by their Oaths to ſubmit to it, and maintain it. Thirdly, A Diſpenſation in our Caſe is in the nature of a Temporary Repeal of a Law, for it is a laying it to Sleep for a time, in a Legal way; conſequently there is no more Obligation from the Oath objected, to put a Law in Execution, during the Time that the Execution thereof is by a Diſpenſation Legally Suſpended, then there is to put a Law in Execution after it is Repealed. And to do either, would be againſt the Oath objected, becauſe it would be to Act againſt Law. And if this be denyed, it were worthy Enquiry, Why the Judges, who are bound by Oath, as is objected; and who ſometimes affirm themſelves obliged by Oath, to give the Laws in Charge in their Circuits: do nevertheleſs forbear to give in Charge, or put in Execution, ſeveral Obſolete and Antiquated Laws, which have never been actually Repealed by the Legiſlative Power; but only Suſpended by the Act, or by Allowance of our Kings (who might have enforced the Execution of them if they had pleaſed) and by the Conſent, and tacite Agreement of our Judges, and whole Kingdom, taken to be ſuſpended.

Object. III. If this Power be allowed to be in the King, he may by Virtue of it Suſpend all our Laws, and even Magna Charta it ſelf, and then farewell all our Liberties and Properties.

Anſw. If this Objection be not grounded upon a Miſtake of the Queſtion, it ſignifies nothing, the Right aſſerted is a Righr of Diſpenſation, Publick Neceſſity, and Publick Good requiring it. It is proved by the Fifth Ground before laid, and the Inſtances urged, to prove that Ground, That Magna Charta hath been, and may be Suſpended by this Right, when Publick Good requires ſuch Suſpenſion. And what matter is it, how many Laws are Suſpended at one time, for Publick-Good, which is the End of all our Laws? Here is no other Right pretended to be maintained in the preſent Diſpute; But what is for Publick-Good, and the Conſervation of our Liberties and Properties.

Object. IV. The Allowance of this Power to the King, may be Dangerous in its Conſequence. For in Effect it makes him ſole Judge in the Caſe. And then be may uſe this Power by miſtake, to the prejudice of the Publick.

Anſw. If there be any Danger in making the King Judge in this Caſe, And that this Danger be an Error, it is not the fault of thoſe who maintain this Right: But of the Law which declares this Right to be in the King, and of the whole Realm which entruſts the Power of Mercy in the King. The ſame Law, and the ſame Realm entruſts the King with the Sword of Juſtice, with the Militia, and with the Power of Peace and War; yet the Law was never blamed in theſe points; nor ought the Kingdom to be charged with Folly, or Imprudence, for theſe Truſts. Certain it is, theſe Powers, and theſe Truſts muſt of neceſſity be in ſome Perſon or Perſons, alwaies Viſible, and alwaies in Being. If it be in One Single Perſon, he is & muſt be King; If in more, then we muſt change our Government and Laws: And how ſafe that will be for our Liberties and Properties, is not hard to judge. The ſame Law that Entruſts theſe Powers in the King, knowing him to be a Man, Entruſts the Legiſlative Power in the Parliament, which is compoſed of Men, and the whole Realm Conſents to theſe Truſts. This is the Conſtitution of our Government. And as our Law Affirms, that this Truſt as to the Legiſlative Power, will not be abuſed, and therefore ſays poſſitively, That in the Exerciſe of the Legiſlative Power, the Parliament can do no wrong. The Law implying the Conſent of the whole Realm to be included in what they do? and conſequently, That none ſhall be ſaid to be wronged in what they Conſent to. So the Law, and the whole Realm, conſenting to Repoſe theſe Truſts in the King, the Law affirms, and the whole Realm believes, That theſe Truſts will not be abuſed; and therefore the Law ſays, That in the Exerciſe of theſe Truſts, the King can do no wrong: The Law implying, the Conſent of the whole Realm to be included in the repoſing of theſe Truſts in the King, and conſequently to be included in what the King does in the Exerciſe and Execution of theſe Truſts; and conſequently, that none ſhall be ſaid to be wrong'd in what they Conſent unto. And in Truth our Law ſays, the King makes the Laws, and is the ſole Judge even in Parliament, and the Lords and Commons only Aſſent. And the King is ſolely intruſted with the Power of Judging, and that he hath no Judge over him. 22. Ed. 3. fol. 3.

Object. V. If this Right may be allowed, the King may Licence a Common Nuſance, or Felony, or High-Treaſon.

Anſw. The Queſtion is only touching the Licenſing of a thing which in its own nature is indifferent, and if not prohibited by a Law, might be honeſtly done, and becomes an Offence only by being prohibited, and becauſe it is prohibited by a Law made for Common-Good. And this being the true ſtate of the Caſe, the Objection is fully granted. The King may Licenſe the doing of a thing, Common-Good, and Publick Advantage or Neceſſity, requiring the Licenſing of the ſame, (regard being had, to particular circumſtances of Time, and other Reaſons of State and concernments) which by Law, was made an Offence, or Common-Nuſance, or Felony, or High-Treaſon. And this is ſo far from being a prejudice or miſchief, That it would be an Inconveniency not to have ſuch a Power ſome where. This is proved by the Fifth and Sixth Grounds before layd. And for farther proof, there is one inſtance amongſt many, in the Books. 11. H. 7. fol. 11. Bro. tit. licences. 24. Where it is Reſolved, That whereas the Coyning of Money was an indifferent thing in it ſelf, And might have been practiſed by every man, that pleaſed, untill it was made an Offence by Law: (which makes it High-Treaſon) The King may Diſpenſe with that Law, and licence the Coyning of Money. This is an Inſtance of the higheſt nature, (viz.) of a Malum Prohibitum made Treaſon. And therefore other Inſtances are needleſs.

Object. 6. If this Right be allowed, where the Penalty for doing a Malum Prohibitum is given to the Poor, or the Proſecutor, and not to the King, the King ſhall have power to Deprive the Subject of what the Law gives him, which will be a Wrong; and the King can do no Wrong.

Anſw. This Objection, as the former, is grounded upon a miſtake of the Queſtion, which is only of Diſpenſing Pro Bono Publico, in Caſes of Common-Good, and Publick Advantage, or Neceſſity, ſo that what at the time of making the Law, which made it an Offence, was fit for the Common-Good to be prohibited, and made an Offence, comes at the Time, and in the Circumſtances wherein it is Diſpenſed with, to be a Common-Good; and conſequently neceſſary to be licenſed. So that admitting it were a miſchief to the Proſecutor, or to the Poor of ſome Pariſh, to be barred of the Penalty given by the Law; yet to the Publick it would be an Inconveniency, not to have that Licenſed, which Common-Good requires to have Licenſed. And the known Rule of Law requires, That a private Miſchief ſhould rather be ſuffer'd, then a Common Inconvenience: Conſequently by this Right exerciſed, the King does no Wrong. For to prefer Publick-Benefit, before the private Gain of Informers, who are the Peſt of the Kingdom, or before the Poor of a Pariſh, who muſt otherwiſe be kept by the Pariſh, is no Wrong. Beſides the Objectors grant, That the King, notwithſtanding this Objection, may licence particular perſons, And they muſt grant, That before an Action commenced, the King, after an Offence committed, may deprive an Informer, of what the Law gives, by a particular Pardon. Both theſe Rules are lay'd in the Books of 2. R. 3. fol. 11.12. & 1. H. 7. fol. 3. & 37. H. 6. fol. 4. & 5. And if it be no wrong to Pardon the Offence committed, altho' there be no Pretence of Common-Good, upon which the Pardon is grounded, it is certainly no wrong to Diſpence for Common-Good.

Object. VII. That there are no expreſs Judgments found in our Law-Books to warrant this Right in the King: And it is to be preſumed, That it being a Right often Claimed by our Kings, and Denyed by the Subjects, The Judges, who by their Offices are the King's Council Learned, would not have left ſo material a Point unſettled.

Anſw. I. Suppoſing this Objection were true, That there were no Expreſs Judgments found in this Caſe, yet the Conſequence doth no more follow, That therefore the King hath no ſuch Right; then the contrary conſequence would follow, Therefore the King hath ſuch Right. For though it be true, That the Judges in all Ages were, and are the King's Council Learned, And the Kings of England have always Claimed and Exerciſed this Right, undoubtedly they would not have done this, if their Judges had plainly told them, That it was againſt Law; or that the thing had not been clear, in its own nature. And if there were no Judgments in the Caſe mention'd in our Law-Books, when the thing hath been ſo conſtantly practiſed, it rather ſeems clear, That it was ſo undoubtedly the King's Right, That no Perſon in any Age ever thought it a Point fit to conteſt upon, or to put it to the Judgment of a Court. There is no diſpute but that there have been many Parliaments in former times, who have attempted to tear many Prerogatives from the Crown, taking advantage of the Wants or Weakneſs of our Kings: And it is as certain, that the Generality of our Judges in all Ages, have more enclined to leſſen the King's Prerogative, then to deprive the People of their Liberties; either as thinking their own Intereſt concerned therein, as Subjects, or as inclining rather to an Ariſtocracy, then to a Monarchy; or rather (and which is the moſt probable) upon the account of fear of being queſtion'd by Parliaments, knowing well, that whenever they did pinch hard upon the Prerogative Royal, the Kings were generally Merciful in their own natures, or might be prevailed upon by their Courtiers, to pardon and paſs by it, and that it was never to be diſpaired but that a way might be found to pacifie the diſpleaſure of the Prince, who was but one Man, and who had no way to puniſh, but only by diſplacing, which was ſeldome done for an Error of a Man's Judgment. But that whenever they happened to fall under the diſpleaſure of a Parliament, upon any jealouſie of advancing the King's Prerogative too high; the Excuſes of Human Frailty, and of Erring, though a real and involuntary miſtake, did as ſeldome procure their Pardon, as a like pretence would preſerve a Perſon from the puniſhment of the Law, who ſhould ſtand Indicted before themſelves. For Courts are not ſingle perſons, nor is it reaſonable they ſhould be, their Conſtitutions being to take care that Juſtice ſhould be Executed In Terrorem, without Favour, or Affection; knowing that Mercy floweth by the Conſtitution of our Laws, from another Fountain. This is ſaid, ſuppoſing the Objection were True. But, Secondly, The Objection is before proved to be moſt untrue by the inſtances put of the Judgments given, touching the Diſpenſing with Magna Charta. Coke, lib. 12. fol. 33.34. The Judgment given in 2 H. 7. fol. 6. agreed in Calvin's Caſe. Coke. lib. 7. fol. 14. and the Caſe of Licenſing Coyning. 11. H. 7. fol. 11.

Object. VIII. That ſeveral Privy Counſellors and Great Men in former Times, and particularly Cardinal Wolſey, and the late Earl of Briſtol, have been impeached by the Concurrence of our moſt Learned Judges, for Adviſing the Kings of this Realm to Diſpenſe with Penal Laws.

Anſw. I. It is no Diſhonour to Parliaments, to ſay, that all Impeachments even by Parliaments, are not always juſt, and well-grounded, though judged to be ſo at the time when they are framed; an inſtance may be given in the deplorable Caſe of the Late Noble Earl of Strafford, Impeached and Attainted unhappily by a Parliament, and that Attainder moſt happily and juſtly Repeal'd by this preſent Parliament. Therefore if it could be proved, That any Miniſter of State had at any time been impeached by a Parliament, for Adviſing any of our Kings to Exerciſe the Right now aſſerted, it would no way prove, That our Kings had no ſuch Right by our Laws. Secondly, But there can be no Preſident ſhown, of any Impeachment againſt any one Perſon in any Age, by any Parliament, or any other Juſt and Legal Authority, for Adviſing any of our Kings to Diſpenſe with any one or more of our Penal Laws for the Publick Good, or in any Caſe where Publick Advantage or Neceſſity required ſuch Diſpenſation. Thirdly, As to the Caſes urged in the Objection, they are not to the Point in Queſtion; The firſt of Cardinal Wolſey was as to Licenſes, That he granted Licenſes under the Great Seal (being Chancellor) for Exporting Goods prohibited by Law, for Advantage to himſelf and his Servants, without the King's Warrunt or Knowledge. Coke, Jurisdiction of Courts, Tit. Chancery. foll. 90. This in truth was a Grievous Crime, to grant Licenſes under the Great Seal for Diſpenſing with Penal Laws, without the King's Warrant or Knowledge; But this very Charge implyes, That this had been no Offence if he had been Authorized, by the King's Warrant to Seal ſuch Licenſes: And every Merchant knows, That nothing is more in practice, then for the King, in ſpecial Caſes, to Licenſe the Exporting of Goods, prohibited by particular Laws, to be ordinarily Exported.

The Caſe of the late Earl of Briſtol is as far from the Point as the former, The Caſe was thus: That Lord had been imployed by King James as his Majeſties Ambaſſador in Spain, to Treat touching the Marriage with the then Infanta; the King of Spain being Zealous for the Religion of the Church of Rome, inſiſted in the ſaid Treaty, to procure ſome favours for the Engliſh Roman-Catholicks: The firſt Propoſals, as to the matter of Religion, related no farther then to a Freedom of Religion, for the Infanta and her Servants, the Children of the Marriage, and her Eccleſiaſticks and Religious. This could not be without the King's particular Licenſes: This the King aſſented to (Ruſhworth's Hiſtorical Collections. fol. 4.) The King agreeing, thus far, and the Treaty being prolongued by many Artificial delays, The King of Spain urged farther, in favour of the Engliſh Roman-Catholicks in general: But the form, and way to be left, to his Majeſties Wiſdom and Clemency, that the Mercy mmight be Acknowledged to come from his Majeſty. To this the ſaid King James, and his Late Majeſty, both Signed. (Ruſhworth fol. 287.) And after all this, King James for farther Satisfaction in this matter, did by the Lord Conway his Majeſties Secretary of State, by a particular Declaration in writing, Signed by the ſaid Lord Conway, and Dated Aug. 7. 1623. Declare and Engage, That his ſaid Majeſty would cauſe a preſent Suſpenſion under his Majeſties Great Seal, of all thoſe Penal Laws, Charges, and Forfeitures, whereunto the Roman-Catholick Subjects of his Majeſty had thentofore been ſubject; and in the ſame Grant, and under the ſame Seal, to give a Diſpenſation and Toleration to all the Roman-Catholicks, His Majeſties Subjects, as well Prieſts, as Temporal Perſons, &c. (Ruſhworth, fol. 288.289.) The Marriage not taking effect, and Animoſities and Feuds happening between the then Duke of Buckingham, and the ſaid Earl of Briſtol: the ſaid Earl after that King's Death, in Parliament impeached, and wrought with the Houſe of Commons to Impeach the ſaid Duke. And the ſaid Duke prevailed with his then Majeſty firſt to Exhibite an Impeachment againſt the ſaid Earl in the ſame Parliament, thereby intending to make the ſaid Earl either to retract, or to forbear proſecution of his Charge againſt the ſaid Duke; or to invalidate his Teſtimony. And true it is, that the Fifth Article of the Charge againſt the ſaid Earl was, That he Counſell'd, and perſwaded King James to Grant, and to allow unto the Papiſts, free Toleration, and Silencing of all the Laws made, and ſtanding in force againſt them. The Charge is not, That he Counſell'd the King to Grant a Publick and Free Toleration; But to Diſpenſe with the Laws For Toleration, and Diſpenſation, import no more than a permiſſion to Exerciſe their Religion in their private Houſes, and to Suſpend the Execution of the Laws there mention'd, for a Time. All which the ſaid King had power (in purſuance of a Treaty, and Articles, between Crowns, upon the breach or performance of which, Peace or War, Common-Good, or Publick-Prejudice depend) to do. But to Counſel a free Toleration, imports an Allowance of Publick Worſhip, which as Affairs then ſtood here, could not conſiſt with Publick Peace: The Temper of this Nation not enduring it, nor could the Papiſts have been ſecured from the Rage of the People in the Enjoyment of it. And the Silencing of the Laws might import a Total Repeal of them, which the King did not Claim a Right to do of himſelf. So that this comes not to our Poynt in Queſtion: This Lord was not Impeached by Parliament, nor by any appearing Concurrence of Judges, nor for Adviſing the King to Diſpenſe with any Penal Law for Publick-Good, or where Neceſſity required. But there is yet ſomething more in this Caſe of the Earl of Briſtol. The whole Story is told at large by Mr. Ruſhworth in the Book before cited: And it had this farther in it, (viz.) That when the Impeachment was brought into the Lords Houſe, the Earl of Briſtol put in his Anſwer to it: and as to this particular Article, he firſt denyed poſitively, That he had Counſell'd any thing in the matter charged. And then he declared fully what was done, and ſet forth at large the matters of Fact before-mention'd, as well as to what was Signed by King James, and his Late Majeſty King Charles the Firſt, as alſo the Declaration Signed by the Lord Conway by King James his Order. So that in this Caſe there are theſe things worthy obſervation to the preſent purpoſe. Firſt, That it is not probable but that the ſaid Duke of Buckingham, being the then Greateſt Miniſter of State and Favourit to King James, did Adviſe in all things which then paſſed in that Affair, and particularly in the Declaration Signed by the Lord Conway: But touching the Lord Conway's Signing a Declaration, there can be no queſtion. Secondly, That the ſaid Earl wanted neither Wit, Will, nor Courage to Charge the ſaid Duke, as far, and with Crimes as diſtaſtful as he could find any, wherewith to Charge. And that he was not fond of, nor any ways obliged to ſpare the Perſon of the Lord Conway, who was the Duke's Friend, and muſt have been the Duke's moſt material Wittneſs, to ſave him in Caſe the Charge againſt the Duke had been proſecuted. Thirdly, That the Parliament then ſitting, was as diligent in Enquiring into Miſdemeanors, as much diſpleaſed with the Duke of Buckingham, as little tender of the Lord Conway, as Secretary of State; and much inclined to Enquire in relation to the too much Advancing and Stretching the King's Prerogative to the prejudice of the Subject, and againſt the known Laws; as (peradventure) any Parliament that ever Sett in England: yet neither did Parliament, nor this Earl of Briſtol, Charge any thing againſt this Duke, or Exhibite any Impeachment againſt the ſaid Lord Conway, for Adviſing to Diſpenſe with Penal Laws; nor did this Parliament any way appear to proſecute the ſaid Earl of Briſtol upon this Impeachment Exhibited againſt him, though he was thereby particularly Charged for thus Adviſing.

This ſeems a very probable Argument (at leaſt) to prove that both the Earl of Briſtol, and this Parliament, did Believe the King to have this Right which is here Aſſerted.

Object. IX. That King James when he Treated in Relation to the Match with Spain, being demanded to Suſpend the Execution of the Penal Laws, then in force againſt the Papiſts; was pleaſed to Anſwer: That it was not in his Power ſo to do, without a Parliament.

Anſw. This whole Objection is moſt certainly a miſtake, For it is evidently proved before, what Opinion King James had, and how well he was ſatisfied with, and underſtood his Right in the point of Diſpenſations: And how Wiſe and Knowing a Prince he was, all Man-kind is ſatisfied. Therefore if any thing were demanded of that King, in that Treaty, to which his Majeſty gave any ſuch Anſwer, as is here Objected; The demand did certainly Extend ſo far, as to require a Total Silencing, and Repealing of thoſe Laws. In which Caſe his Majeſties Anſwer was moſt certainly True. But to ſuppoſe that King to have given this Anſwer, where the Queſtion or Demand was only touching a Suſpenſion of Laws, and then afterwards, to have offer'd, and promiſed a Suſpenſion of the ſame Laws under his Great Seal, would be with the higheſt Folly, Self-contradiction, and want of Sincerity imaginable.

Object. X. That his now Majeſty, in a Speech heretofore made by him in this preſent Parliament, did by implication agree that he had not, by wiſhing that he had, ſuch Power, as is now inſiſted on. And when afterwards his Majeſty by Advice, took upon him to Exerciſe this Power, he did again upon further Advice wave the ſame.

Anſw: I. This as well as the other Objections in the Caſe of King James, if they were granted as far as the Objections can be put, Nay if the Caſes were, That King James had, and his now Majeſty alſo, paſt Acts of Parliament, expreſs in the point to bar themſelves and the Crown of this Right, the ſame muſt be only intended, as to the ordinary Exerciſe of that Right; But not of the Extraordinary Exerciſe thereof, when the Publick Good requires the ſame ſhould be Exerciſed, which is proved by the Grounds before layd. Secondly, And that his Majeſties proceedings are to be thus intended, and not otherwiſe, is proved by the continual Exerciſe of that Power in the Caſes of Suſpenſions of Penal Laws, ſuſpended by the King's ſole Power, and the Suſpenſions never Queſtion'd, never Complain'd of, but ſtill ſubmitted unto, and admitted as Legal; namely, thoſe touching Navigation, touching Importation of French-Wines, and touching The Breadth of Cart-Wheels. If the King had been really perſwaded, into a real Belief by the miſtaken Advice of the Earl of Clarendon (whoſe Opinion in Law was never eſteemed of Venerable Authority) at the time of his Speaking, which is Objected. It is clear by his Majeſties Practice ſince, that he hath found cauſe to alter that Belief; And if his Majeſty for Reaſons beſt known to his Royal Self, hath in one particular Caſe, waved the Exerciſe of his ſaid Power, yet his continual Exerciſe of the ſame Right in the other laſt mention'd Caſes, makes it evident, that it is only a wavior in this ſingle Caſe in particular Circumſtances, and upon ſuch Advice, as that he ſtill nevertheleſs thinks it moſt reaſonable and legal to continue the Diſpenſations, by which his Majeſty hath Suſpended thoſe other Laws. And it were Injurious to the Care and Wiſdome of his Majeſties Great Counſel, and to the providence and foreſight of his Counſel Learned the Judges, to conceive, that they do not take the Execution of thoſe other Laws to ſtand well Suſpended by his Majeſties reſpective Proclamations, by which they ſtand Suſpended, whilſt yet they have not complained, of thoſe Suſpenſions; nor prepared or adviſed the preparing of any Bills to be offered to his Majeſty for the Repealing or Suſpending of thoſe Laws by Act of Parliament.

Object. XI. That all our preſent Judges, have expreſly declared their unanimous Opinion in the very point, by giving in Charge the Laws intended to be Suſpended by his Majeſties late Declaration (which hath been the Occaſion of the Publick Debates touching this matter) albeit the ſaid Declaration did expreſly affirm the ſaid Suſpenſion to be for Publick-Good.

Anſw. The Proceedings of our Reverend Judges are always Regulated by prudent, but ſtrict Rules, and thoſe Rules relate as well to matter of Form, as to matter of Subſtance. This our Law requires, and by their Oaths they are bound up to proceed according to Law: which is the true reaſon why many Judgments given in our ſeveral Courts are afterwards reverſed, in Caſes otherwiſe very honeſt and juſt: Learned Men have been often heard to wiſh, that Matters of Form might be leſs Conſiderable in our Laws; And that our Judges of every Court of Law had alſo a Power to Conſider and Judge alſo of Equity in all Caſes coming before them. It ſeeming very harſh to ſuch as do not throughly graſp the Reaſons of things, to hear it ſaid that an honeſt juſt Cauſe was loſt, for matter of Form, or becauſe of the Errror or Ignorance of a Clerk; And that Law in ſuch a Caſe is one way, and Conſcience and Equity another way. And theſe things ſeem often times in particular Caſes to be very miſchievous. But when it ſhall be conſider'd, That this way of being tyed cloſe, even by an Oath, to ſtrict Rules, is that which preſerves us from Arbitrary Judgments, and keeps all things Certain, and that many particular Miſchiefs are rather to be tolerated, then the great and common Inconveniencies endured, of Truſting any Judges whatſoever, with an Arbitrary Power. And that for the Relieving even of particular Perſons againſt ſuch miſchiefs as may happen from the Cloſe Obſervance of theſe ſtrict Rules, our Government hath appointed Courts of Equity; No one can reaſonably Complain that they are hurt or Injured. Now it is conceived, that the reaſon of this way of proceeding in our Judges in the Poynt objected, was not that they judged the King to have no Power to Diſpence with Penal Laws, for the Publick-Good, and when Neceſſity and Reaſon of State required; but they were tyed up by their Oaths, as is before-mention'd: And conſequently were bound not only to conſider the ſubſtantial part, whether by the King's ſole Power, the Execution of Penal Laws upon Grounds warranted by Law, might be Suſpended; But they were alſo to Conſider the Form and Manner of the King's Executing of this Power. And if the ſame were not done in ſuch manner as the Rules of Law required, they could not legally be ſo bound by it as to be Excuſed from giving thoſe Statutes in Charge, though they might otherwiſe have a Liberty ſo far to comply with the Publick-Good, and with what the King (whom the Law hath conſtituted Judge of what is ſo) judged to be neceſſary for the Publick-Good, as not rigorouſly to compell the Execution, of what they were nevertheleſs bound by their Oaths, to give in Charge. And this is conceived to be the true State of the preſent Caſe urged in the Objection, which rightly underſtood makes nothing againſt the King's Right here affirmed, and juſtifies the Prudence and High Integrity of the Lords the Judges. The King found it abſolutely neceſſary, for Common-Good, being to Engage in a moſt neceſſary War, to ſuſpend the Execution of ſeveral Penal Laws: The Reſolution taken in the Caſe was upon ſerious Debates, had with his Miniſters of State, it being purely an Affair of State, conſequently his Majeſties Counſel of Lawyers were not conſulted in the Poynt, it not being within their Cognizance to Adviſe in Affairs of State, ſuch as are the making of Peace or War, &c. Nor do they think themſelves diſparaged in being omitted out of Conſultations of this nature. The King upon this Advice reſolves upon the thing as neceſſary; and finding in common practice, That it was not to be doubted but that he had a Power inherent in him to do this: His Majeſty having formerly Exerciſed this Right, in the aforeſaid Caſes of Suſpending the Execution of ſeveral Laws made in Relation to Cart-Wheels, French-Wines, &c. In all which his Counſel of Lawyers had prepared and drawn up the Inſtruments, by which the ſame were Suſpended, and no Complaint or Exception was ever taken againſt the ſame, by any of the Judges, or by the Parliament. The form of doing this was by his Majeſty left to his Miniſters of State, becauſe it being matter of State, it lay moſt properly within their Sphere to expreſs the Reaſons which were therein to be ſet forth for the doing what was to be done. Theſe States-men being ſolely uſed to conſider matter of Subſtance, and being mere Strangers to matters of Form, and conſequently not reflecting upon matter of Form as neceſſary; drew up the Inſtrument by which this Suſpenſion was to be Executed by the way of a Declaration, and thought the paſſing of that Declaration in Council by his Majeſty, and the Publiſhing the ſame in Print, being in their Judgments the ſole matter of ſubſtance, was all that was neceſſary in this Affair. But it happened in this Caſe that for want of Adviſing with his Majeſties Attorney General, by whom thoſe Inſtruments were prepared, which ſuſpend the Execution of thoſe other Laws, there was ſomething amiſs in this; So that it came not ſo Legally and in ſuch Form to the Judges, as thoſe others did; conſequently they could not by reaſon of their Oaths, omit to give in Charge the Laws intended to be ſuſpended by this Declaration. Yet they took care (like moſt prudent Perſons, and moſt Loyal and Dutiful Subjects) not to preſs the rigorous Execution of any one of thoſe Laws, becauſe the King had declared his Royal Judgment, That the Execution of them was to the prejudice of Common-Good. Nor yet did they proceed to declare any Reaſon why they continued to give the ſame in Charge, nor to declare any Negative Opinon, that the ſame were not Suſpended: But left all men to conjecture from their not preſſing the Execution of any of thoſe Laws, that the ſame were in Truth ſufficiently Suſpended in ſubſtance. And yet that there was ſome Defect in the legal Form of that Declaration, ſo that they were in their Opinions not excuſed from giving the ſaid Statutes in Charge: And this was rightly taken by the whole Kingdom, none of thoſe Laws were put in Execution, but Publick Good was complyed with. And clear it is, the whole Kingdom was thereby in the greateſt Peace and Quiet, that it had enjoyed in the memory of man: All the Deſigns and Contrivances of the Dutch for putting our Nonconformiſts into Diſorders, and breaking our Publick-Peace, were prevented, to their great Aſtoniſhment and Confuſion; And our Reverend Judges by this their great Wiſdom, preſerved the King's Honor, conformed unto, and complyed with his Royal Intention, juſtified his Right in the ſubſtantial part of it; and preſerved themſelves from all poſſibility of being blamed either by his Majeſty, or by the Parliament. And by this are eaſily reconciled the Carriages and Proceedings of the Judges in this particular poynt; wherein to thoſe who do not conſider things well, they ſeem to have diſallowed the King's Right of Diſpenſing with Penal Laws. And their Carriages and Proceedings in the other Caſes, where the King ſuſpended the Laws relating to Navigation, to Importation of French-Wines, and to The Breadth of Cart-Wheels; none of which were ever Executed, or given in Charge ſince the Execution of them were ſuſpended by Proclamations drawn up and prepared by his Majeſties Attorney General, and paſſed under the Great Seal of England, and ſo made matter of Record before they were publiſhed in Print.

Object. XII. Admitting our Judges in Favour of our Kings, whoſe Officers they were, to have countenanced this Right, and that our Parliaments have been ſilent without Complaining of the Exerciſe thereof, as to particular Perſons, as not eſteeming it inconvenient to admit the King a Power to gratifie ſingle Perſons; yet no Parliament ever allowed the King to have a Right of Diſpenſing, even as to particular Perſons, much leſs as to General Diſpenſations: and the Exerciſe of ſuch a Power would in a great meaſure render Parliaments uſeleſs.

Anſw. I. This inconveniency of the King's having this Right, as to General Diſpenſations, is leſs than his having the ſame, as to particular Perſons. For it may happen, That Diſpenſations to particular Perſons, may by the indirect means of Gifts beſtowed on the Procurers of them, be Granted upon falſe ſuggeſtions, and the King be deceived in his Grants of them, without any Default in the King: But general Diſpenſations cannot be ſuppoſed to be made but upon great Advice, and as the Effects immediate of the King's Judgment. Theſe therefore were never by our Law, ſubmitted to the Judgments of our Judges, as being grounded always upon Reaſon of State, Publick-Good, and Neceſſity, of which our Judges never take upon them to judge, but rely as to the matter of Fact, upon the King's Judgment: But particular Diſpenſations have been in all Ages under the Judgment of our Judges, ſo as to judge whether they are well-grounded, or not, and whether the King were deceived in his Grant, or not. Secondly, As to the Allowance of this Right, in either Caſe, by Parliaments; If it be meant That the ſame was not Originally Granted to the Crown by Parliaments, it is Agreed, for if it were, it might then be taken away by the ſame Authority, which it is proved that it cannot be. But if by the Objection it be only intended, That it hath not been admitted by Parliaments, then the Objection is denyed. And for juſtification of the Denyal, as to the King's Right of Diſpenſing with particular Perſons, theſe two inſtances will ſerve: Firſt in the Act of Parliament before cited, which endeavoured to Bar the Crown of the Exerciſe of this Right, it muſt be agreed That it was admitted by that Parliament, That the King had this Right, otherwiſe it had been vain, to provide againſt the Exerciſe of it, in Diſpenſing with that Statute, nay the endeavour to bar the Exerciſe of it, in that ſingle Point, proves, that they admitted he might lawfully Exerciſe it as to other Penal Laws, and that they conceived he might have Exerciſed it ſo as to Diſpenſe with that alſo, in caſe they took not care to bar him. The Statute intended is that of 23. H. 6. c. 8. By which it is made Penal for any one to Accept of and Execute the Office of Sheriff of one County twice: And it is thereby expreſly Enacted, That every Pardon, then after made for ſuch Offence, and for ſuch Forfeiture, ſhould be void, and all Patents made to the contrary ſhould be void; Notwithſtanding any Clauſe of Non obſtante (that is any Diſpenſation) therein to be contained. This clearly is an admittance, That the King had this Right: But it is alſo further Remarkable upon this Statute, That the better to bar the King of the Exerciſe of this Right, as to this Law, this particular Act gives Power to the Proſecutor to bring his Action for the Recovery of the Forfeitures in his own name, intending doubtleſs not to have the King's Name uſed, and thereby to bar the King's Attorney from helping the Defendant, by a Non vult ulterius proſequi. Yet notwitſtanding all this Solicitude and Care taken, the Law hath adjudged (as is before proved) That neither this Act, nor any other Power whatſoever; could bar the King, from diſpenſing with this Law, nor from uſing the Service of any Subject, in any Office; nor could the Subject be liable to any Penalty by this or any other Statute, for Serving the King in any Office upon the King's Command. The King being Entituled to the Service of every Subject, by the Law of Nature, by which Law every Subject owes a Legeance to the King, which Rights being inherent and inſeperable, they cannot be taken off by any Acts of Parliament. The Second Inſtance for proving the King's Right of Diſpenſation, as to particular Perſons (and peradventure it may prove the ſame as to general Diſpenſations alſo) to have been admitted by Parliament, is full and expreſs in the Poynt: It is Rot. Parl. 1. H. 5.11.22. cited by Rolle (a moſt avowed Enemy to the Crown) Tit. Prerogative le Roy. fol. 180. the words thus: The Commons prayed, That the Statutes for voyding of Aliens out of the Kingdom, might be Executed: to which the King agreed, ſaving his Prerogative, That he might Diſpenſe with ſuch as he pleaſed. And upon this the Commons Anſwer'd, That their Intentions was no other, nor ever ſhould be, by the help of God. Now if this Prerogative of Diſpenſing with ſuch as the King pleaſed were intended (as it was reaſonable it might be) to Diſpenſe with all of any particular Nation in caſe he pleaſed, and any Articles of League required it, (as they might well do, and in which Caſe the Non-performance would have occaſion'd a War) then this Inſtance proves an Admittance of the King's Right, as to General Diſpenſations. But if it be otherwiſe underſtood only, as to Diſpenſe with ſingle perſons, it is at leaſt a clear and ſolemn Admittance of that Right. And as to the King's Right of Diſpenſing Generally, it is proved before to be Admitted by the whole Kingdom in the Caſes of his now Majeſties Diſpenſations in Relation to the Importation of French Wines, and the Statutes relating to Navigation, and the breadth of Cart-Wheels; to which may be added the known Caſe of the King's General Diſpenſation with ſeveral Penal Laws made in Relation to a Matter Eccleſiaſtical: It is in the poynt of keeping of Lent, and Faſting, Enjoyned by the King's Eccleſiaſtical Laws, the Cannons of our Church; and farther Enforced under ſeveral Penalties by the Statutes of 2. &. 3. Ed. 6. c. 19. & 5. & 6. Ed. 6. c. 3. & 5. Eliz. c. 5. In the firſt there is a Saving to ſuch as ſhall be Licenſed by the King (which if it be intended of Licenſes to particular Perſons will not concern the preſent poynt) in the ſecond there is no ſaving. In the third, there is a particular ſaving limited and reſtrained to particular Caſes, and Conditions, as to Licenſes. All theſe Laws are Generally Diſpenſed with, by the King's General Diſpenſation, by his Proclamation, and this is admitted to be Legal by the Admittance of our preſent Parliament; and of all our Eccleſiaſticks, Judges, Lawyers, and the whole Kingdom in General, by an Univerſal Admittance, not queſtion'd, or complained of by any. Thirdly, As to the cloſe of the Objection, which pretends, That the Allowance of this Right to the King, will in a great meaſure render Parliaments Uſeleſs: The Anſwer is, Firſt, our Law-Books ſpeak not of Licenſes or Diſpenſations general or particular by Parliament, but by the King, the King's Right is to Diſpenſe, the Parliament to Repeal. Secondly, It is for the Eaſe of the Kingdom, that the Conſtitution of the Government is thus, For the neceſſity of Diſpenſations in ſeveral Caſes, where our Penal Laws are ſo numerous, requires, that the Power of Diſpenſing with Penal Laws, ſhould be in ſome Perſon or Perſons always viſible, and in being, which cannot be a Parliament, without a vaſt Expence and Inconveniency to the Kingdom, who are by the Conſtitution of our Government, to bear the Charges, and allow Wages to the Members Choſen, and ſent by them to Sit in Parliament: And therefore it is, That our Law puts the Power of Diſpenſations, which are but Temporary, in the King, That the Total Repealing (if neceſſary) may attend the calling and meeting of a Parliament, when other weighty Affairs ſhall require a Parliament to be called. It would be intollerable to trouble the Kingdom with the calling of Parliaments ſo often as there is occaſion, for Publick Good, to Suſpend the Execution of a Penal Law; in the mean time the Publick cannot ſuffer in regard the Law hath well provided for it, by putting this Power in the King. So that Parliaments continue ſtill to be uſeful, notſtithſtanding this Power be in the King. And this Power being in the King, by the Conſtitution of our Government, which hath placed the power of Repealing Laws, in the Parliament, as it would render Parliaments uſeleſs, to put the Legiſlative Power in the King ſolely, which is of the Eſſence of a Parliament. So to put thoſe Powers into a Parliament, which are of the Eſſence of King, would render our King uſeleſs. Our Government hath long continued and ſubſiſted happily by the ſeveral and diſtinct Exerciſes apart by our Kings and Parliaments, of their ſeveral and diſtinct, proper, and eſſential Rights peculiar to each other: And when either ſhall uſurp upon the other, our whole Government and Laws muſt be deſtroyed; and let the Objectors Judge whether that would endanger our Liberties and Properties.

Object. XIII. If this Right, and the Powers of the Militia, and of Peace and War, and of making Leagues, were to be Exerciſed only by his now Majeſty, the Kingdom would not think it ſelf unſafe by entruſting him. But to have this Power, and thoſe others inherent in the Crown, which may deſcend to One, who may be a Tyrant, or of a Religion contrary to what we now Profeſs, may be deſtructive to our Religion and Laws, And therefore if our Laws do veſt theſe Powers in the Crown, as is inſiſted, theſe Laws are thus far defective, and ought to be altered. Theſe Powers not being fit to be Exerciſed, but by Parliament only, and to be veſted in the Parliament.

Anſw. I. This Objection upon pretence of Securing our Religion, labours to make it odious, by propoſing to make us violate all thoſe Oaths, which oblige us to be True and Faithful to the King, his Lawful Heirs and Succeſſors, without any Reſervations or Conditions, in relation to the good Government, or Religion of ſuch Lawful Heirs. So that in Effect it propoſes to us to break Faith with the Heirs of the Crown, when ever we ſhall judge them to be Tyrants or Hereticks, and to become Rebels in order to the Defence or Security of the True Religion; which Principles our Religion profeſſeth to abhor. Secondly, This Objection alſo tends to put us into a perpetual ſtate of War and Blood, into a deſperate hazarding of our Eſtates, Lives, Laws, Liberties, Country and Religion, upon a Pretence of endeavouring to ſecure our Religion and Laws. That theſe muſt be the Conſequences is unavoidable; For if it ſhould be ſuppoſed, that his now Majeſty to gratifie the preſent Objectors, and to prevent the objected Dangers, which are pretended may in poſſibility happen from theſe Powers reſting in the Crown, ſhould agree to depart (as much as in him lyeth) with ſo much of his Crown as is here deſired, and after that, even with his whole Crown. And that thereupon the whole frame of our Government ſhould be Altered, as far as the wit of man can contrive to Alter the ſame, yet there can be no Security, but that his Majeſty may repent, and endeavour by Force, or otherwiſe to retrieve all that is thus departed with. If he attempt this by Force, there muſt be neceſſarily a War, which proves the Truth of what is here Anſwered: If he can do it without War, he will not want a Preſident to Warrant his Repealing all ſuch Alterations by his Letters-Patent. The Caſe is cited by Rolle, Tit. Prerogative le Roy. fol. 165. where he ſays: That in the Statutes at large, 15. Edw. 3. The King revokes by his Letters Patent with the Aſſent of his Earls, Barons, and other wiſe Men of his Realm, certain Statutes made before in the ſame Year; Becauſe they were contrary to the Cuſtoms of the Realm, and his Prerogative Royal, and Aſſented to by him by Diſſimulation in Caſe of neceſſity. And (ſaith Rolle) thoſe Statutes have been reputed as Repealed ever ſince. The Letters Patent by which theſe Statutes were thus Repealed, are Printed in the Statutes at Large, in Anno 15. Edw. 3. a Copy of which is at the end of this Anſwer to this Objection. Wherefore the Dangers from his now Majſties repenting, will prompt the Objectors, to farther and worſe Fears, not to be removed untill his Majeſtie and all who may be feared within the Kingdom, be put into ſuch a condition as to ceaſe to be Objects of Fear. And yet when this is done, The Dangers are not paſt. For Rex nunquam moritur nec mori poteſt. The King of England in his Politick Capacity is as Immortal as the World. We ſhall but make our Selves a Prey to that Neighbouring Prince who is Strongeſt, and the Strongeſt Prince will certainly make himſelf an Undoubted Title to the Crown of England, let his Religion or Temper be what it will. For if England could not ſubſiſt a Republick when it had Holland to Aſſiſt it: It cannot be, but That the Crown of England will have an Heir, now Holland is diſabled from Abetting any Change of Government.

The Copy of the Letters Patent.

EDWARD by the Grace of God, &c. To the Sheriff of Lincoln, Greeting.

WHereas att our Parliament ſummoned att Weſtminſter in the xv. of Eaſtter laſt paſt, certain Articles expreſsly contrary to the Laws and Cuſtomes of our Realme of England, and to our Prerogatives and Rights Royal were pretended to be Granted by us by the manner of a Statute; we conſidering how that by the bond of our Oath wee be tied, to the obſervance and defence of ſuch Laws, Cuſtomes, Rights, and Prerogatives, and providently willing to revoake ſuch things to their own State, which be ſoe improvidently done; upon conference and treatiſe thereupon had with the Earles, Barons and other wiſe men of our ſaid Realme; and becauſe we never conſented to the makeing of the ſaid Statute, but as then it behoved us, we disſimuled in the premiſſes by proteſtations of revocation of the ſaid Statute, if indeed it ſhould proceed, to eſchew the dangers which by the denyeing of the ſame we feared to come, foraſmuch as the ſaid Parliameet otherwiſe had been without diſpatching any thing in diſcord diſſolved, and ſoe our earneſt buſineſs had likely been ruinated which God prohibit. And the ſaid pretended Statute we promiſed then to be ſealed. It ſeemed to the ſaid Earls, Barons, and other wiſe men, that ſithence the Statute did not of our free will proceed, the ſame be void, and ought not to have the name nor ſtrength of a Statute. And therefore by their counſel and aſſent wee have decreed the ſaid Statute to be void, and the ſame in as much as it proceeded of deed we have agreed to be adnulled; willing nevertheleſs that the Articles contained in the ſaid pretended Statute, which by other of our Statutes, or of our Pregenitors Kings of England, have been approved, ſhall according to the form of the ſaid Statute in every point as convenient is, be obſerved. And the ſame we do only to the conſervation and reintegration of the rights of our Crown, as we be bound, and not that we ſhould in any wiſe grieve or oppreſs our Subjects, whom we deſire to rule by lenity and gentleneſs. And therefore we do command thee that all theſe things thou cauſe to be openly proclaimed in ſuch places within thy Bailiwick, where thou ſhalt ſee expedient.

Witneſs my ſelf at Weſtminſter, the firſt day of October, the fifteenth year of our Reign.

FINIS.