An enquiry into the power of dispensing with penal statutes together with some animadversions upon a book writ by Sir Edw. Herbert ... entituled, A short account of the authorities in law, upon which judgment was given in Sir Edward Hales's case / by Sir Robert Atkyns ...
         Atkyns, Robert, Sir, 1621-1709.
      
       
         
           1689
        
      
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             An enquiry into the power of dispensing with penal statutes together with some animadversions upon a book writ by Sir Edw. Herbert ... entituled, A short account of the authorities in law, upon which judgment was given in Sir Edward Hales's case / by Sir Robert Atkyns ...
             Atkyns, Robert, Sir, 1621-1709.
          
           [2], 58 p.
           
             Printed for Timothy Goodwin ...,
             London :
             1689.
          
           
             Reproduction of original in Cambridge University Library.
             Advertisement precedes title.
          
        
      
    
     
       
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         eng
      
       
         
           Herbert of Cherbury, Edward Herbert, -- Baron, 1583-1648. -- Short account of the authorites in law, upon which judgment was given in Sir Edward Hale's case.
           Hales, Edward, -- Sir, d. 1695.
           Dissenters, Religious -- Legal status, laws, etc. -- Great Britain.
           Dissenters, Religious -- Great Britain.
        
      
    
     
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           AN
           ENQUIRY
           INTO
           THE
           
             Power
             of
             Dispensing
          
           WITH
           PENAL
           STATUTES
           .
        
         
           Together
           with
           Some
           Animadversions
           UPON
           A
           Book
           writ
           by
           Sir
           
             EDW.
             HERBERT
          
           ,
           Lord
           Chief
           Justice
           of
           the
           Court
           of
           
             Common
             Pleas
          
           ,
           ENTITULED
           ,
           
             A
             short
             Account
             of
             the
          
           Authorities
           in
           Law
           ,
           
             upon
             which
             JUDGMENT
             was
             given
             in
             Sir
          
           Edward
           Hales
           
             's
             Case
          
           .
        
         
           By
           Sir
           
             ROBERT
             ATKYNS
          
           ,
           Knight
           of
           the
           Honourable
           Order
           of
           the
           Bath
           ,
           and
           late
           one
           of
           the
           Judges
           of
           the
           
             Common
             Pleas.
          
           
        
         
           
             Digna
             vox
             est
             Majestate
             Regnantis
             ,
             Legibus
             Alligatum
             se
             esse
             Principem
             profiteri
             .
          
        
         
           LONDON
           :
           Printed
           for
           
             Timothy
             Goodwin
          
           ,
           at
           the
           Maiden-head
           against
           St.
           Dunstan's-Church
           in
           Fleet-street
           .
           1689.
           
        
      
       
         
         
           ADVERTISEMENT
           .
        
         
           January
           the
           21st
           ,
           1689.
           
        
         
           
             TO
             Morrow
             will
             be
             Published
             by
          
           Tim.
           Goodwin
           ,
           
             at
             the
          
           Maiden-head
           
             against
             St.
          
           Dunstan
           
             's
             Church
             in
          
           Fleet-street
           ,
           The
           Power
           ,
           Jurisdiction
           ,
           and
           Priviledge
           of
           PARLIAMENT
           :
           
             And
             the
             Antiquity
             of
             the
          
           House
           of
           Commons
           
             asserted
             :
             Occasioned
             by
             an
             Information
             in
             the
          
           King's-Bench
           ,
           
             by
             the
             Attorney
             General
             ,
             against
             the
             Speaker
             of
             the
          
           House
           of
           Commons
           .
           
             As
             also
             a
             Discourse
             concerning
             the
             Ecclesiastical
             Jurisdiction
             in
             the
             Realm
             of
          
           England
           ;
           
             occasioned
             by
             the
             late
             Commission
             in
             Ecclesiastical
             Causes
             .
             By
             Sir
          
           Robert
           Atkyns
           ,
           
             Knight
             of
             the
             Honourable
             Order
             of
             the
          
           Bath
           ,
           
             and
             late
             one
             of
             the
             Judges
             of
             the
             Court
             of
          
           Common-Pleas
           .
        
         
         
      
    
     
       
         
         
         
           AN
           ENQUIRY
           INTO
           THE
           Power
           of
           Dispensing
           WITH
           
             Penal
             Statutes
          
           .
        
         
           
             
               
                 
                   25
                   CAR.
                   II.
                   Cap.
                   2.
                   
                   An
                   Act
                   for
                   preventing
                   Dangers
                   which
                   may
                   happen
                   from
                   Popish
                   Recusants
                   .
                
                 
                   FOR
                   preventing
                   Dangers
                   which
                   may
                   happen
                   from
                   Popish
                   Recusants
                   ,
                   and
                   quieting
                   the
                   Minds
                   of
                   his
                   Majesties
                   good
                   Subjects
                   ,
                   Be
                   it
                   enacted
                   ,
                   &c.
                   
                   That
                   every
                   person
                   that
                   shall
                   bear
                   any
                   Office
                   ,
                   Civil
                   or
                   Military
                   ,
                   &c.
                   or
                   shall
                   have
                   Command
                   or
                   Place
                   of
                   Trust
                   from
                   or
                   under
                   his
                   Majesty
                   ,
                   &c.
                   within
                   the
                   Realm
                   of
                   
                     England
                     ,
                     &c.
                  
                   shall
                   personally
                   appear
                   in
                   the
                   Court
                   of
                   Chancery
                   ,
                   or
                   of
                   the
                   Kings-Bench
                   ,
                   or
                   at
                   the
                   Court
                   of
                   Quarter-Sessions
                   in
                   that
                   County
                   where
                   he
                   shall
                   reside
                   within
                   three
                   Months
                   next
                   after
                   his
                   Admittance
                   into
                   any
                   of
                   the
                   said
                   Offices
                   ,
                   and
                   there
                   in
                   open
                   Court
                   ,
                   take
                   the
                   several
                   Oaths
                   of
                   Supremacy
                   and
                   Allegiance
                   ,
                   and
                   shall
                   also
                   receive
                   the
                   Sacrament
                   of
                   the
                   Lord's
                   Supper
                   ,
                   according
                   to
                   the
                   Usage
                   of
                   the
                   Church
                   of
                   England
                   ,
                   in
                   some
                   Parish-Church
                   ,
                   upon
                   some
                   Lord's-day
                   ,
                   immediately
                   after
                   Divine
                   Service
                   .
                
                 
                   And
                   every
                   the
                   person
                   aforesaid
                   ,
                   that
                   doth
                   or
                   shall
                   neglect
                   or
                   refuse
                   to
                   take
                   the
                   said
                   Oaths
                   and
                   the
                   Sacrament
                   in
                   the
                   said
                   Courts
                   ,
                   and
                   at
                   the
                   respective
                   times
                   aforesaid
                   ,
                   shall
                   be
                   
                     ipso
                     facto
                  
                   adjudged
                   uncapable
                   ,
                   and
                   disabled
                   in
                   Law
                   to
                   all
                   intents
                   and
                   purposes
                   whatsoever
                   ,
                   to
                   have
                   ,
                   occupy
                   ,
                   or
                   enjoy
                   ,
                   the
                   said
                   Office
                   or
                   Employment
                   ,
                   and
                   every
                   such
                   Office
                   and
                   Place
                   shall
                   be
                   void
                   ,
                   
                     and
                     is
                     hereby
                     adjudged
                     void
                  
                   .
                
                 
                   And
                   every
                   person
                   that
                   shall
                   neglect
                   or
                   refuse
                   to
                   take
                   the
                   said
                   Oaths
                   or
                   the
                   Sacrament
                   as
                   aforesaid
                   ,
                   and
                   yet
                   after
                   such
                   neglect
                   or
                   refusal
                   ,
                   shall
                   execute
                   any
                   of
                   the
                   said
                   Offices
                   ,
                   after
                   the
                   said
                   times
                   expired
                   ,
                   wherein
                   he
                   ought
                   to
                   have
                   taken
                   the
                   same
                   ,
                   and
                   being
                   thereupon
                   lawfully
                   convicted
                   upon
                   any
                   Information
                   ,
                   &c.
                   in
                   any
                   of
                   the
                   King's
                   Courts
                   at
                   Westminster
                   ,
                   or
                   at
                   the
                   Assizes
                   ,
                   every
                   such
                   person
                   shall
                   forfeit
                   500
                   l.
                   to
                   be
                   recovered
                   by
                   him
                   that
                   shall
                   sue
                   for
                   the
                   same
                   .
                
                 
                   And
                   at
                   the
                   same
                   time
                   when
                   the
                   persons
                   concerned
                   in
                   this
                   Act
                   shall
                   take
                   the
                   said
                   Oaths
                   ,
                   they
                   shall
                   likewise
                   subscribe
                   the
                   Declaration
                   against
                   the
                   Belief
                   of
                   Transubstantiation
                   under
                   the
                   same
                   Penalties
                   as
                   by
                   this
                   Act
                   is
                   appointed
                   .
                
              
            
          
        
         
           
             
               
                 
                 
                   Paschae
                   2
                   JAC.
                   II.
                   In
                   the
                   King's-Bench
                   .
                   
                     Arthur
                     Godden
                  
                   Plaintiff
                   ,
                   in
                   an
                   Action
                   of
                   Debt
                   of
                   500
                   l.
                   grounded
                   upon
                   the
                   Act
                   of
                   25
                   Car.
                   2.
                   for
                   preventing
                   Dangers
                   from
                   Popish
                   Recusants
                   .
                
                 
                   Sir
                   
                     Edward
                     Hales
                  
                   ,
                   Bar
                   t
                   ,
                   Defendant
                   .
                
                 
                   
                     THE
                     Plaintiff
                     declares
                     ,
                     That
                     the
                     Defendant
                     after
                     the
                     First
                     day
                     of
                  
                   Easter
                   -
                   Term
                   ,
                   1673.
                   sc.
                   28
                   Nov.
                   1
                   Jac.
                   2.
                   at
                   Hackington
                   in
                   
                   Kent
                   ,
                   
                     was
                     admitted
                     to
                     the
                     Office
                     of
                     a
                     Colonel
                     of
                     a
                     Foot-Regiment
                     .
                  
                
                 
                   
                     That
                     being
                     a
                     Military
                     Office
                     ,
                     and
                     a
                     Place
                     of
                     Trust
                     under
                     the
                     King
                     ,
                     and
                     by
                     Authority
                     from
                     the
                     King.
                     
                  
                
                 
                   
                     And
                     the
                     Defendant
                     held
                     that
                     Office
                     by
                     the
                     space
                     of
                     three
                     Months
                     next
                     after
                     the
                  
                   28
                   Nov.
                   1
                   Jac.
                   2.
                   
                
                 
                   
                     And
                     from
                     thence
                     ,
                     till
                     the
                     time
                     of
                     this
                     Action
                     begun
                     ,
                     he
                     was
                     and
                     still
                     is
                     an
                     Inhabitant
                     and
                     Resident
                     of
                     the
                     Parish
                     of
                  
                   Hackington
                   .
                
                 
                   
                     And
                     the
                     Plaintiff
                     taking
                     it
                     by
                     Protestation
                     ,
                     that
                     the
                     Defendant
                     within
                     three
                     Months
                     next
                     after
                     his
                     Admission
                     into
                     the
                     said
                     Office
                     of
                     Colonel
                     ,
                     did
                     not
                     receive
                     the
                     Sacrament
                     in
                     Manner
                     as
                     the
                     Act
                     directs
                     ,
                     but
                     neglected
                     to
                     receive
                     it
                     .
                  
                
                 
                   
                     Avers
                     ,
                     that
                     the
                     Defendant
                     did
                     neglect
                     to
                     take
                     the
                     Oaths
                     of
                     Supremacy
                     and
                     Allegiance
                     ,
                     either
                     in
                     the
                     Chancery
                     ,
                     or
                     in
                     the
                     Kings
                     Bench
                     ,
                     or
                     at
                     any
                     Quarter-Sessions
                     in
                  
                   Kent
                   ,
                   
                     or
                     in
                     the
                     Place
                     where
                     he
                     was
                     resident
                     ,
                     either
                     the
                     next
                     Term
                     after
                     his
                     admission
                     to
                     his
                     said
                     Office
                     ,
                     or
                     within
                     three
                     Months
                     after
                     .
                  
                
                 
                   
                     And
                     that
                     the
                     Defendant
                     after
                     such
                     neglect
                     ,
                     sc.
                  
                   10
                   Mar.
                   2
                   Jac.
                   2.
                   at
                   Hackington
                   in
                   Kent
                   ,
                   
                     did
                     exercise
                     the
                     said
                     Office
                     ,
                     and
                     still
                     doth
                     ,
                     contrary
                     to
                     the
                     Statute
                     of
                  
                   25
                   Car.
                   2.
                   
                     for
                     preventing
                     Dangers
                     from
                     Popish
                     Recusants
                     .
                  
                
                 
                   
                     Whereupon
                     the
                     Defendant
                     at
                  
                   Rochester
                   ,
                   
                     at
                     the
                     Assizes
                     held
                  
                   29
                   Mar.
                   2
                   Jac.
                   2.
                   
                     was
                     duly
                     Indicted
                     for
                     such
                     his
                     neglect
                     ,
                     and
                     for
                     executing
                     the
                     said
                     Office
                     contrary
                     to
                     the
                     said
                     Statute
                     .
                  
                
                 
                   
                     And
                     thereupon
                     duly
                     Convict
                     ,
                     as
                     by
                     the
                     Record
                     thereof
                     appears
                     ,
                     whereupon
                     the
                     Plaintiff
                     became
                     entituled
                     to
                     this
                  
                   500
                   l.
                   
                     as
                     forfeited
                     by
                     the
                     Defendant
                  
                   .
                
                 
                   
                     The
                     Defendant
                     pleads
                     ,
                     that
                     the
                     King
                     within
                     the
                     three
                     Months
                     ,
                     in
                     the
                     Declaration
                     mentioned
                     ,
                     and
                     before
                     the
                     next
                     Term
                     or
                     Quarter-Sessions
                     ,
                     after
                  
                   
                   
                     his
                     admittance
                     to
                     the
                     said
                     Office
                     ,
                     and
                     before
                     his
                     Suit
                     began
                     ,
                     sc.
                  
                   9
                   Jan.
                   1
                   Jac.
                   2.
                   
                     by
                     his
                     Letters
                     Patents
                     under
                     the
                     Great
                     Seal
                     ,
                     and
                     here
                     produced
                     in
                     Court
                     ,
                     did
                     dispence
                     with
                     ,
                     pardon
                     ,
                     remit
                     ,
                     and
                     discharge
                     (
                     among
                     others
                     )
                     the
                     Defendant
                     from
                     taking
                     the
                     said
                     Oaths
                     ,
                     and
                     from
                     receiving
                     the
                     Sacrament
                     ,
                     and
                     from
                     subscribing
                     the
                     Declaration
                     against
                     Transubstantiation
                     or
                     Tests
                     in
                     the
                     Act
                     of
                  
                   25
                   Car.
                   2.
                   
                     for
                     preventing
                     Dangers
                     from
                     Popish
                     Recufants
                     ,
                     or
                     in
                     any
                     other
                     Act
                     ,
                     and
                     from
                     all
                     Crimes
                     ,
                     Convictions
                     ,
                     Penalties
                     ,
                     Forfeitures
                     ,
                     Damages
                     ,
                     Disabilities
                     ,
                     by
                     him
                     incurred
                     by
                     his
                     exercising
                     the
                     Office
                     of
                     Colonel
                     .
                  
                
                 
                   
                     Or
                     by
                     the
                     Act
                     intituled
                  
                   ,
                   An
                   Act
                   for
                   the
                   Preserving
                   of
                   the
                   King's
                   Person
                   
                   and
                   Government
                   ,
                   by
                   disabling
                   Papists
                   from
                   sitting
                   in
                   either
                   House
                   of
                   Parliament
                   .
                   
                     Or
                     by
                     the
                     Acts
                     made
                     in
                     the
                     first
                     or
                     third
                     Years
                     of
                     King
                  
                   James
                   
                     the
                     First
                     ,
                     or
                     the
                     Acts
                     made
                  
                   5
                   Eliz.
                   or
                   23
                   ,
                   or
                   29
                   ,
                   or
                   35
                   Eliz.
                   
                
                 
                   
                     And
                     the
                     King
                     ,
                     by
                     his
                     Letters
                     Patents
                     ,
                     granted
                     ,
                     that
                     the
                     Defendant
                     should
                     be
                     enabled
                     to
                     hold
                     that
                     Office
                     in
                     any
                     Place
                     in
                  
                   England
                   ,
                   or
                   Wales
                   ,
                   or
                   Berwick
                   ,
                   
                     or
                     in
                     the
                     Fleet
                     ,
                     or
                     in
                  
                   Jersey
                   ,
                   or
                   Guernsey
                   ,
                   
                     and
                     to
                     receive
                     his
                     Pay
                     or
                     Wages
                     .
                  
                
                 
                   
                     Any
                     Clause
                     in
                     the
                     said
                     Acts
                     ,
                     or
                     in
                     any
                     other
                     Act
                     notwithstanding
                  
                   &
                   non
                   obstante
                   ,
                   
                     that
                     the
                     Defendant
                     was
                     or
                     should
                     be
                     a
                     Recusant
                     convict
                     .
                  
                
                 
                   
                     As
                     by
                     the
                     said
                     Letters
                     Patents
                     doth
                     appear
                     .
                  
                
                 
                   
                     Whereupon
                     the
                     Defendant
                     prays
                     the
                     Judgment
                     of
                     the
                     Court
                     ,
                     whether
                     the
                     Plaintiff
                     ought
                     to
                     maintain
                     this
                     Action
                     .
                  
                
                 
                   The
                   Plaintiff
                   demurr'd
                   generally
                   to
                   this
                   Plea.
                   
                
                 
                   The
                   Defendant
                   joyned
                   in
                   Demurrer
                   .
                
                 
                   Judgment
                   is
                   given
                   for
                   the
                   Defendant
                   .
                
              
            
          
        
         
           THE
           Order
           I
           shall
           observe
           in
           speaking
           to
           this
           Case
           ,
           as
           to
           the
           
           Point
           upon
           the
           Dispensation
           ,
           shall
           be
           this
           :
        
         
           First
           ,
           I
           shall
           open
           
             this
             Act
             of
          
           25
           Car.
           2.
           and
           shew
           the
           great
           Occasion
           
           and
           Necessity
           for
           the
           Making
           of
           it
           ;
           the
           Scope
           and
           Design
           of
           it
           ;
           the
           excellent
           Remedy
           it
           does
           prescribe
           ;
           and
           the
           great
           Benefit
           and
           Security
           that
           might
           arise
           to
           the
           Nation
           from
           it
           ,
           were
           it
           duly
           observ'd
           .
        
         
           Secondly
           ,
           I
           shall
           then
           discourse
           briefly
           of
           the
           Nature
           of
           
             Law
             in
             general
          
           ,
           
           as
           far
           only
           as
           may
           be
           useful
           and
           pertinent
           to
           our
           present
           Case
           ,
           and
           of
           the
           great
           Force
           and
           Authority
           that
           a
           Law
           ought
           to
           have
           ,
           and
           of
           the
           great
           Veneration
           that
           should
           be
           paid
           to
           it
           ,
           especially
           if
           the
           
             True
             Religion
          
           ,
           and
           the
           
             Honour
             of
             Almighty
             God
          
           ,
           the
           
             Safety
             of
             the
             Government
          
           ,
           and
           the
           
             Publick
             Good
             and
             Peace
             of
             the
             Nation
          
           depend
           upon
           it
           ,
           as
           they
           all
           do
           upon
           this
           Act
           of
           25
           Car.
           2.
           
        
         
           Thirdly
           ,
           In
           the
           next
           place
           ,
           I
           shall
           give
           an
           Account
           of
           the
           True
           Nature
           
           (
           as
           near
           as
           I
           can
           )
           and
           of
           the
           Original
           and
           Growth
           of
           the
           Notion
           or
           Invention
           call'd
           a
           Dispensation
           ,
           and
           who
           were
           the
           first
           Authors
           of
           it
           ,
           and
           about
           
             what
             time
             it
             began
          
           ,
           I
           shall
           endeavour
           to
           shew
           the
           right
           
             use
             of
             it
          
           ,
           (
           if
           there
           be
           any
           )
           and
           
             where
             the
             just
             Power
          
           of
           granting
           Dispensations
           does
           reside
           ,
           as
           also
           the
           
             abuse
             of
             it
          
           ,
           and
           how
           that
           according
           to
           the
           late
           Practice
           ,
           these
           Dispensations
           are
           contrary
           and
           repugnant
           to
           the
           Nature
           and
           Properties
           of
           Law
           ,
           tho'
           they
           pretend
           themselves
           to
           be
           Law
           ,
           they
           have
           a
           different
           Original
           and
           Foundation
           ,
           and
           do
           indeed
           subvert
           Law.
           
        
         
           First
           ,
           For
           the
           Occasion
           and
           Necessity
           for
           Making
           of
           this
           Act
           of
           Parliament
           ,
           
           and
           the
           Scope
           and
           Design
           of
           it
           ,
           and
           the
           Ends
           aimed
           at
           ,
           they
           all
           appear
           in
           the
           Preamble
           .
        
         
           
             The
             Preamble
          
           distinguishes
           the
           King's
           Subjects
           into
           two
           sorts
           :
        
         
           
             1.
             
             Some
             from
             whom
             there
             are
             great
             Dangers
             .
          
           
             2.
             
             Those
             who
             are
             the
             Persons
             subject
             to
             those
             Dangers
             .
          
        
         
           The
           Dangers
           are
           from
           Popish
           Recusants
           ;
           those
           who
           are
           threatned
           by
           those
           Dangers
           ,
           the
           Act
           terms
           them
           his
           Majesty's
           good
           Subjects
           .
        
         
           It
           would
           be
           needless
           to
           tell
           what
           those
           Dangers
           are
           ,
           and
           whence
           they
           arise
           .
        
         
         
           All
           the
           times
           since
           the
           Reformation
           ,
           have
           abundantly
           discover'd
           
           what
           the
           Dangers
           are
           .
           There
           have
           been
           a
           multitude
           of
           Acts
           of
           Parliament
           made
           that
           have
           still
           been
           fencing
           against
           those
           Dangers
           ,
           which
           do
           sufficiently
           point
           them
           out
           :
           so
           do
           the
           frequent
           and
           incessant
           Addresses
           
           from
           every
           Parliament
           for
           many
           Years
           ,
           setting
           forth
           the
           Dangers
           ;
           and
           all
           our
           Histories
           and
           Publick
           Writings
           ,
           and
           especially
           those
           written
           and
           published
           by
           his
           now
           Majesty's
           Royal
           Grandfather
           ,
           King
           James
           the
           First
           ,
           and
           a
           multitude
           more
           ,
           but
           above
           all
           ,
           the
           sad
           event
           of
           things
           ,
           and
           what
           we
           all
           see
           is
           come
           to
           pass
           ;
           these
           disclose
           to
           all
           the
           World
           ,
           what
           the
           Dangers
           were
           ,
           and
           the
           great
           need
           of
           a
           further
           Remedy
           .
        
         
           Their
           destructive
           Principles
           ,
           and
           their
           desperate
           Designs
           and
           Practices
           ,
           do
           abundantly
           testifie
           the
           Danger
           from
           the
           one
           sort
           ,
           and
           the
           just
           fears
           of
           the
           other
           sort
           of
           Subjects
           .
        
         
           The
           Scope
           therefore
           ,
           and
           the
           great
           End
           that
           our
           Act
           of
           Parliament
           had
           ,
           is
           to
           prevent
           the
           Dangers
           from
           the
           one
           ,
           and
           to
           quiet
           the
           Minds
           of
           the
           other
           ;
           many
           former
           Acts
           of
           Parliament
           which
           had
           the
           same
           end
           and
           purpose
           proving
           ineffectual
           .
        
         
           The
           Remedy
           provided
           is
           very
           suitable
           ,
           and
           the
           likeliest
           and
           most
           effectual
           that
           either
           the
           Wisdom
           or
           Supreme
           Authority
           of
           the
           King
           and
           Parliament
           could
           devise
           ,
           and
           the
           very
           Remedy
           points
           out
           the
           danger
           .
        
         
           The
           Danger
           would
           be
           at
           the
           heighth
           of
           it
           ,
           if
           the
           dangerous
           Principles
           and
           Practices
           should
           but
           arrive
           at
           the
           Power
           and
           Authority
           ,
           and
           gain
           that
           into
           their
           hands
           ,
           (
           and
           it
           was
           growing
           apace
           towards
           it
           )
           .
        
         
           The
           wise
           and
           proper
           Remedy
           therefore
           provided
           by
           the
           King
           and
           Parliament
           ,
           is
           first
           to
           discover
           who
           are
           Popish
           Recusants
           ;
           to
           offer
           a
           Trial
           and
           Test
           to
           all
           that
           should
           be
           in
           any
           publick
           Trust
           and
           Authority
           ,
           for
           it
           was
           suspected
           that
           there
           were
           many
           Papists
           under
           the
           disguise
           of
           Protestants
           .
        
         
           And
           in
           the
           next
           place
           ,
           so
           to
           Fence
           and
           Guard
           the
           Power
           and
           Authority
           and
           all
           Publick
           Trusts
           in
           the
           Nation
           ,
           that
           they
           might
           by
           no
           means
           come
           into
           the
           hands
           of
           the
           Papists
           .
        
         
           Persons
           entrusted
           with
           the
           Power
           and
           Authority
           over
           the
           Nation
           ,
           had
           need
           give
           a
           signal
           Testimony
           of
           their
           Loyalty
           and
           Fidelity
           to
           the
           King
           and
           Government
           ,
           and
           of
           their
           true
           Zeal
           for
           the
           Religion
           establish'd
           by
           Law.
           
        
         
           The
           Test
           ,
           as
           to
           their
           Loyalty
           ,
           are
           the
           two
           Oaths
           of
           Supremacy
           and
           Allegiance
           ,
           (
           and
           neither
           of
           these
           are
           new
           Tests
           )
           .
           
        
         
           The
           Test
           ,
           as
           to
           Religion
           ,
           and
           the
           true
           Worship
           of
           God
           ,
           are
           likewise
           two
           ,
           the
           Receiving
           of
           the
           Blessed
           Sacrament
           ,
           and
           the
           Subscribing
           a
           Declaration
           against
           the
           Doctrine
           of
           Transubstantiation
           .
        
         
           The
           Temper
           and
           Moderation
           shewn
           by
           his
           late
           Majesty
           and
           both
           Houses
           ,
           in
           this
           Act
           of
           Parliament
           ,
           deserves
           to
           be
           observ'd
           :
           It
           is
           not
           like
           the
           
             Leges
             Draconis
          
           ,
           written
           in
           Blood
           ;
           this
           is
           no
           Sanguinary
           Law.
           It
           does
           not
           proceed
           against
           them
           with
           Fire
           and
           Faggot
           .
        
         
           It
           does
           not
           disturb
           them
           in
           their
           Estates
           and
           Possessions
           ;
           it
           does
           not
           deprive
           them
           of
           the
           Liberty
           of
           their
           Persons
           .
           Nay
           ,
           it
           does
           not
           hinder
           them
           from
           the
           Exercise
           of
           their
           own
           Religion
           (
           if
           it
           may
           be
           so
           called
           )
           (
           I
           speak
           as
           to
           our
           present
           Act
           of
           25
           Car.
           2.
           only
           )
           .
        
         
           It
           lets
           them
           live
           quietly
           in
           their
           Habitations
           ,
           without
           so
           much
           as
           putting
           any
           Oath
           or
           Test
           upon
           them
           ,
           so
           long
           as
           they
           live
           private
           men
           .
           It
           only
           requires
           ,
           that
           if
           they
           will
           be
           entrusted
           with
           Power
           and
           Authority
           they
           should
           give
           some
           just
           and
           reasonable
           Security
           and
           Assurance
           ,
           
           that
           they
           will
           be
           true
           to
           the
           Religion
           and
           the
           Government
           establish'd
           .
        
         
           If
           they
           will
           be
           medling
           with
           the
           Power
           ,
           without
           giving
           such
           security
           ,
           then
           at
           their
           Peril
           be
           it
           :
           The
           Law
           pronounces
           them
           uncapable
           ,
           and
           disabled
           ,
           and
           inflicts
           Penalties
           upon
           such
           as
           shall
           presume
           to
           violate
           this
           Law.
           
        
         
           And
           it
           is
           worth
           the
           noting
           ,
           how
           sollicitous
           and
           intent
           the
           Makers
           of
           this
           Law
           were
           ,
           that
           this
           Test
           and
           Tryal
           might
           be
           taken
           and
           performed
           with
           great
           solemnity
           ,
           and
           that
           the
           Law
           might
           not
           be
           eluded
           with
           any
           Arts
           and
           Tricks
           ,
           that
           no
           Cheat
           might
           be
           put
           upon
           it
           .
           All
           this
           shews
           ,
           that
           the
           Law-makers
           had
           great
           expectation
           from
           this
           Law.
           
        
         
           The
           Oaths
           are
           to
           be
           taken
           in
           one
           of
           the
           two
           highest
           Courts
           of
           Westminster-Hall
           ;
           the
           very
           Hours
           of
           the
           Day
           are
           limited
           when
           they
           must
           be
           taken
           ,
           that
           is
           when
           the
           Courts
           are
           usually
           fullest
           ;
           during
           the
           taking
           of
           them
           ,
           all
           Pleas
           and
           Proceedings
           are
           to
           cease
           .
        
         
           There
           is
           the
           like
           care
           taken
           concerning
           the
           receiving
           of
           the
           Sacrament
           ,
           and
           of
           the
           certifying
           of
           it
           ,
           and
           plentiful
           proof
           to
           be
           made
           of
           it
           ,
           and
           then
           the
           recording
           of
           it
           .
           And
           the
           like
           for
           subscribing
           the
           Declaration
           against
           the
           Doctrine
           of
           Transubstantiation
           .
        
         
           It
           were
           great
           pity
           ,
           that
           after
           all
           these
           pains
           ,
           they
           should
           signifie
           just
           nothing
           ,
           and
           that
           so
           high
           an
           Authority
           should
           be
           made
           ridiculous
           .
        
         
           But
           after
           all
           this
           securing
           against
           the
           Danger
           from
           Popish
           Recusants
           ,
           how
           shall
           we
           do
           to
           secure
           against
           the
           Danger
           of
           Dispensations
           ?
           Suppose
           this
           Act
           had
           contain'd
           a
           Clause
           in
           it
           ,
           declaring
           ,
           that
           all
           Dispensations
           and
           Grants
           ,
           with
           
             Non
             obstante's
          
           to
           the
           contrary
           of
           this
           Law
           ,
           should
           have
           been
           
             ipso
             facto
          
           void
           ,
           and
           had
           inflicted
           Penalties
           upon
           such
           persons
           as
           should
           have
           procur'd
           them
           ,
           would
           this
           have
           made
           it
           stronger
           ?
        
         
           No
           :
           several
           Acts
           of
           Parliament
           have
           been
           made
           in
           divers
           Cases
           ,
           with
           express
           Clauses
           incerted
           in
           those
           Acts
           ,
           to
           make
           void
           all
           
             Non
             obstante's
          
           to
           the
           contrary
           of
           those
           Laws
           ,
           (
           which
           one
           would
           have
           thought
           would
           have
           been
           strong
           enough
           )
           and
           yet
           they
           all
           came
           to
           nothing
           :
           for
           the
           Judges
           heretofore
           have
           resolv'd
           ,
           that
           if
           the
           King
           grant
           a
           Dispensation
           from
           such
           Laws
           ,
           with
           a
           Special
           
             Non
             obstante
          
           to
           any
           such
           Special
           Law
           ,
           mentioning
           the
           very
           Law
           ,
           that
           presently
           the
           force
           of
           that
           Law
           vanishes
           .
        
         
           Therefore
           ,
           beside
           the
           Disabilities
           and
           Incapacities
           put
           upon
           them
           ,
           further
           to
           obviate
           this
           Mischief
           also
           ,
           and
           to
           frustrate
           all
           contrary
           Judgments
           ,
           and
           to
           prevent
           the
           Allowance
           of
           any
           such
           Grants
           and
           Dispensations
           with
           this
           Act
           ,
           by
           the
           Opinion
           of
           the
           Judges
           ,
           or
           future
           Resolution
           of
           any
           Court
           in
           Westminster-Hall
           to
           the
           contrary
           ,
           (
           as
           if
           the
           Law-makers
           had
           foreseen
           this
           Danger
           too
           )
           and
           to
           give
           a
           Rule
           to
           Judges
           in
           such
           Cases
           ,
           when
           any
           should
           happen
           to
           come
           before
           them
           ,
        
         
           There
           is
           this
           further
           Provision
           made
           by
           this
           Law
           ,
           that
           the
           granting
           
           or
           conferring
           of
           any
           such
           Office
           and
           Place
           is
           by
           express
           words
           adjudged
           void
           .
           The
           words
           are
           ,
           
             And
             is
             hereby
             adjudged
             void
          
           .
        
         
           It
           does
           not
           leave
           the
           Courts
           below
           to
           Judge
           it
           ,
           but
           this
           Law
           before-hand
           gives
           the
           very
           Judgment
           .
           It
           directs
           the
           way
           of
           trying
           the
           Matter
           of
           Fact
           by
           Indictment
           ,
           &c.
           and
           then
           declares
           the
           Judgment
           upon
           it
           ,
           and
           leaves
           it
           only
           to
           the
           Judges
           to
           apply
           that
           Judgment
           to
           the
           particular
           Case
           .
        
         
           May
           the
           Judgment
           of
           any
           Inferiour
           Court
           controul
           the
           Judgment
           of
           the
           Supreme
           Courts
           .
        
         
         
         
         
         
         
           Here
           is
           more
           then
           a
           threefold
           Cord
           to
           tie
           it
           .
           An
           Oath
           ,
           a
           Sacrament
           ,
           a
           Declaration
           subscrib'd
           .
           I
           look
           upon
           the
           two
           Oaths
           as
           one
           Cord.
           And
           these
           two
           Oaths
           are
           so
           much
           alike
           ,
           and
           to
           the
           same
           effect
           ,
           that
           Cardinal
           Bellarmine
           ,
           purposing
           to
           refute
           the
           Oath
           of
           Allegiance
           ,
           by
           a
           gross
           mistake
           ,
           bent
           all
           his
           forces
           against
           the
           Oath
           of
           Supremacy
           ,
           not
           minding
           the
           difference
           .
           As
           King
           James
           the
           First
           ,
           in
           his
           Answer
           to
           
           the
           Cardinal
           ,
           hath
           observ'd
           in
           the
           Collection
           of
           his
           Majesty's
           Works
           ,
           fol.
           263.
           
        
         
           The
           next
           Cord
           is
           the
           Sacrament
           .
           The
           third
           subscribing
           a
           Declaration
           ,
           to
           remain
           on
           Record
           to
           all
           posterity
           .
        
         
           And
           at
           last
           ,
           a
           Judgment
           in
           the
           very
           point
           by
           the
           King
           and
           Parliament
           ,
           (
           the
           supremest
           Court
           of
           the
           Nation
           )
           which
           must
           not
           be
           contradicted
           by
           any
           other
           Court
           ,
           nor
           by
           all
           the
           Courts
           of
           the
           Nation
           put
           together
           ;
           this
           Supreme
           Court
           exercises
           its
           Legislative
           and
           Judicial
           Power
           both
           at
           once
           ,
           and
           shall
           it
           all
           at
           last
           be
           lost
           labour
           ?
        
         
           Secondly
           ,
           Having
           given
           an
           Account
           of
           this
           particular
           Law
           ,
           upon
           
           which
           the
           present
           Case
           does
           arise
           ,
           I
           shall
           in
           the
           next
           place
           briefly
           speak
           concerning
           Law
           in
           general
           ,
           of
           what
           Force
           and
           Authority
           it
           ought
           to
           be
           ,
           which
           will
           make
           way
           for
           those
           Arguments
           that
           I
           shall
           raise
           from
           it
           .
        
         
           For
           when
           we
           know
           the
           true
           Nature
           of
           a
           Law
           ,
           the
           Nature
           and
           Use
           of
           a
           Dispensation
           will
           be
           better
           understood
           .
        
         
           The
           Name
           does
           oftentimes
           denote
           the
           Nature
           of
           a
           thing
           .
        
         
           The
           truest
           derivation
           is
           that
           of
           
             Lex
             à
             Ligando
          
           ,
           from
           its
           binding
           quality
           and
           the
           obligation
           it
           puts
           upon
           us
           ;
           and
           this
           is
           most
           pertinent
           to
           the
           Matter
           in
           hand
           .
        
         
           The
           Laws
           of
           England
           (
           as
           all
           just
           and
           righteous
           Laws
           )
           are
           grounded
           
           originally
           upon
           the
           Divine
           Law
           ,
           as
           their
           Foundation
           or
           Fountain
           .
           The
           Supreme
           and
           Soveraign
           God
           among
           the
           Heathen
           is
           suppos'd
           to
           have
           the
           Name
           of
           Jupiter
           quasi
           
             Juris
             pater
          
           :
           But
           more
           immediately
           Humane
           Laws
           have
           their
           Force
           and
           Authority
           from
           the
           Consent
           and
           Agreement
           of
           Men.
           
        
         
           All
           Publick
           Regimen
           ,
           (
           says
           learned
           Hooker
           in
           his
           
             Ecclesiastical
             Polity
          
           )
           of
           what
           kind
           soever
           ,
           seemeth
           evidently
           to
           have
           arisen
           from
           deliberate
           Advice
           ,
           Consultation
           and
           Composition
           between
           Men.
           To
           live
           ,
           says
           he
           ,
           by
           one
           Man's
           Will
           becomes
           the
           Cause
           of
           all
           Mens
           Misery
           ;
           this
           constrained
           Men
           to
           come
           to
           Laws
           .
        
         
           A
           People
           whom
           Providence
           hath
           cast
           together
           into
           one
           Island
           or
           Country
           ,
           are
           in
           effect
           one
           great
           
             Body
             Politick
          
           ,
           consisting
           of
           Head
           and
           Members
           ,
           in
           imitation
           of
           the
           Body
           Natural
           ,
           as
           is
           excellently
           set
           forth
           in
           the
           Statute
           of
           Appeals
           ,
           made
           24
           H.
           8.
           c.
           12.
           which
           stiles
           the
           King
           
             the
             Supreme
             Head
          
           ,
           and
           the
           People
           
             a
             Body
             Politick
          
           ,
           (
           these
           are
           the
           very
           words
           )
           
             compact
             of
             all
             sorts
             and
             degrees
             of
             Men
             ,
             divided
             into
             Spiritualty
             and
             Temporalty
             .
          
           And
           this
           Body
           never
           dies
           .
        
         
           We
           our selves
           of
           the
           present
           Age
           ,
           chose
           our
           Common
           Law
           ,
           and
           consented
           to
           the
           most
           ancient
           Acts
           of
           Parliament
           ,
           for
           we
           lived
           in
           our
           Ancestors
           a
           1000
           Years
           ago
           ,
           and
           those
           Ancestors
           are
           still
           living
           in
           us
           .
        
         
           The
           Law
           is
           the
           very
           Soul
           that
           animates
           this
           Body
           Politick
           ,
           as
           learned
           Hooker
           describes
           it
           ,
           the
           Parts
           of
           which
           Body
           are
           set
           to
           work
           in
           such
           Actions
           as
           Common
           Good
           requires
           .
           The
           Laws
           are
           the
           very
           Ligaments
           and
           Sinews
           ,
           that
           bind
           together
           the
           Head
           and
           Members
           ,
           without
           which
           this
           Body
           is
           but
           a
           Rope
           of
           Sand
           ,
           or
           like
           the
           Feet
           of
           
           Nebuchadnezzar's
           Image
           ,
           Iron
           mixed
           with
           Clay
           ,
           that
           can
           never
           cleave
           one
           to
           another
           ,
           nor
           cement
           .
        
         
           And
           so
           properly
           Laws
           have
           their
           name
           ,
           
             à
             Ligando
          
           ,
           in
           this
           respect
           too
           ,
           viz.
           from
           knitting
           together
           ,
           for
           as
           they
           bind
           by
           their
           Authority
           ,
           so
           they
           unite
           in
           Affection
           and
           strengthen
           .
        
         
           And
           these
           Laws
           are
           made
           by
           Publick
           Agreement
           ,
           not
           impos'd
           upon
           Men
           against
           their
           Wills
           ,
           but
           chosen
           by
           the
           Prince
           and
           People
           :
           They
           are
           (
           that
           I
           may
           express
           it
           in
           our
           familiar
           and
           ordinary
           Terms
           )
           the
           Articles
           of
           Agreement
           ,
           chosen
           and
           consented
           to
           by
           Prince
           and
           People
           ,
           to
           be
           the
           Rule
           by
           which
           all
           are
           to
           square
           their
           Actions
           .
           Hence
           the
           Law
           is
           term'd
           ,
           
             The
             Act
             and
             Deed
             of
             the
             whole
             Body
             Politick
             .
          
           The
           Rule
           by
           which
           the
           Prince
           Governs
           and
           the
           Subject
           Obeys
           .
        
         
           From
           whomsoever
           the
           Designation
           of
           the
           Royal
           Person
           is
           that
           governs
           ,
           whether
           from
           Heaven
           or
           of
           Men
           ,
           be
           it
           the
           one
           or
           the
           other
           ,
           *
           The
           Consent
           and
           Agreement
           of
           the
           whole
           Body
           Politick
           ,
           both
           Head
           and
           Members
           ,
           is
           the
           Rule
           of
           the
           Government
           .
        
         
           David
           was
           made
           King
           by
           God's
           immediate
           appointment
           ,
           yet
           he
           himself
           call'd
           all
           Israel
           together
           to
           Hebron
           ,
           and
           there
           they
           made
           
             a
             Covenant
             with
             him
          
           :
           †
           This
           is
           that
           I
           am
           now
           speaking
           of
           ,
           
             (
             the
             Law
             of
             the
             Nation
             )
          
           made
           by
           general
           consent
           ;
           or
           a
           Scheme
           for
           the
           Government
           ,
           as
           a
           late
           Lord
           Chancelor
           terms
           it
           in
           his
           
             Survey
             of
             the
             Leviathan
          
           .
           Every
           Just
           King
           in
           a
           setled
           Kingdom
           is
           bound
           to
           observe
           the
           Paction
           
             made
             to
             his
             People
             by
             his
             Laws
             .
          
        
         
           But
           nothing
           can
           more
           lively
           describe
           it
           then
           the
           Preamble
           of
           the
           Statute
           of
           25
           Hen.
           8.
           c.
           21.
           where
           the
           Lords
           and
           Commons
           addressing
           themselves
           in
           their
           Speech
           to
           the
           King
           ,
           thus
           deliver
           themselves
           :
           Namely
           ,
        
         
           
             WHere
             this
             your
             Grace's
             Realm
             recognising
             no
             Superior
             under
             God
             ,
          
           
           
             but
             only
             your
             Grace
             ,
             hath
             been
             and
             is
             free
             from
             subjection
             to
             any
             man's
             Laws
             ,
             but
             only
             to
             such
             as
             have
             been
             devised
             ,
             made
             and
             obtained
             within
             this
             Realm
             ,
             for
             the
             Wealth
             of
             the
             same
             ,
             or
             to
             such
             other
             ,
             as
             by
             sufferance
             of
             your
             Grace
             ,
             and
             your
             Progenitors
             ,
             the
             People
             of
             this
             your
             Realm
             ,
             have
             taken
             at
          
           their
           free
           liberty
           ,
           
             by
             their
          
           own
           consent
           ,
           
             to
             be
             used
             amongst
             them
             ,
             and
             have
             bound
             themselves
             by
             long
             use
             and
             custom
             to
             the
             observance
             of
             the
             same
             ,
             not
             as
             to
             the
             observance
             of
             the
             Laws
             of
             any
             foreign
             Prince
             ,
             Potentate
             ,
             or
             Prelate
             :
             but
             as
             to
             the
             customed
             and
             ancient
             Laws
             of
             this
             Realm
          
           originally
           
             establish'd
             ,
             as
             Laws
             of
             the
             same
             ,
             by
             the
             said
             sufferance
             ,
          
           consents
           
             and
             Customs
          
           ,
           and
           none
           otherwise
           .
        
         
           Upon
           the
           same
           ground
           it
           is
           that
           learned
           Hooker
           says
           ,
           that
           the
           lawful
           Power
           of
           making
           Laws
           to
           command
           whole
           Politick
           Societies
           of
           Men
           ,
           belongs
           so
           properly
           unto
           the
           same
           entire
           ‖
           Societies
           ,
           that
           for
           any
           Prince
           or
           Potentate
           of
           what
           kind
           soever
           upon
           Earth
           (
           I
           use
           his
           very
           words
           too
           )
           to
           exercise
           the
           
             same
             of
             himself
          
           ,
           and
           not
           either
           by
           express
           Commission
           immediately
           and
           personally
           receiv'd
           from
           God
           ,
           or
           else
           by
           Authority
           derived
           at
           first
           from
           their
           consent
           ,
           upon
           whose
           persons
           they
           impose
           Laws
           ,
           it
           is
           no
           better
           than
           meer
           (
           Tyranny
           *
           )
           .
           King
           James
           the
           First
           ,
           in
           his
           before-mentioned
           Speech
           ,
           speaks
           much
           the
           same
           words
           .
        
         
           Laws
           therefore
           (
           says
           Hooker
           )
           they
           are
           not
           ,
           which
           Publick
           Approbation
           hath
           not
           made
           so
           .
           Approbation
           may
           be
           declar'd
           (
           says
           he
           )
           either
           
           by
           a
           personal
           Assent
           ,
           or
           by
           others
           ,
           by
           a
           Right
           deriv'd
           from
           them
           ,
           as
           in
           Parliaments
           .
           This
           hath
           the
           more
           Authority
           ,
           being
           the
           Judgment
           in
           a
           Point
           of
           Religion
           ,
           not
           of
           an
           Historian
           or
           Lawyer
           ,
           but
           of
           a
           Reverend
           Divine
           ,
           and
           such
           an
           one
           as
           hath
           been
           so
           great
           a
           Champion
           for
           Authority
           and
           Government
           ,
           and
           for
           exact
           Conformity
           to
           Ecclesiastical
           Laws
           .
        
         
           Some
           of
           our
           late
           Writers
           and
           Preachers
           have
           discours'd
           quite
           in
           another
           strain
           .
           The
           Noble
           Author
           I
           just
           now
           cited
           ,
           calls
           the
           Laws
           ,
           Condescentions
           and
           Voluntary
           Abatements
           of
           the
           King
           's
           
             Original
             Power
          
           ,
           (
           supposing
           his
           Power
           at
           first
           was
           absolute
           )
           .
           Now
           that
           Preamble
           of
           that
           Statute
           which
           I
           just
           now
           read
           ,
           is
           directly
           contrary
           in
           the
           very
           word
           
             (
             Original
             .
          
           )
        
         
           Another
           ,
           (
           a
           certain
           Lawyer
           ,
           a
           Knight
           )
           in
           a
           small
           ,
           but
           bold
           ,
           Treatise
           of
           his
           ,
           will
           by
           no
           means
           allow
           of
           any
           limitation
           of
           Power
           ,
           and
           holds
           it
           absurd
           ,
           to
           say
           a
           Government
           can
           be
           mixed
           or
           limited
           .
        
         
           A
           certain
           Divine
           and
           Geographer
           ,
           in
           his
           History
           of
           the
           Life
           of
           a
           late
           Archbishop
           ,
           declares
           himself
           much
           of
           the
           same
           mind
           with
           both
           these
           ,
           and
           many
           others
           have
           trod
           since
           in
           their
           steps
           .
        
         
           I
           therefore
           thought
           it
           very
           proper
           and
           seasonable
           ,
           to
           shew
           the
           Judgment
           in
           these
           Matters
           of
           an
           
             eminent
             Divine
          
           too
           ,
           a
           Person
           in
           all
           respects
           
           without
           exception
           ,
           and
           his
           Judgment
           is
           concurring
           with
           all
           the
           ancient
           Authors
           in
           our
           profession
           of
           the
           Common
           Law
           ,
           who
           being
           so
           learned
           and
           so
           ancient
           ,
           are
           therefore
           the
           most
           Competent
           Witnesses
           of
           our
           English
           Constitution
           .
        
         
           That
           ancient
           Author
           of
           ours
           ,
           whose
           Book
           is
           stiled
           
             Fleta
             quia
             in
             Cartere
             Fletae
             de
             jure
             Anglicano
             conscripsit
             ,
          
           in
           the
           time
           of
           King
           Edward
           the
           First
           ,
           (
           as
           learned
           Mr.
           Selden
           has
           noted
           in
           his
           
             Dissertatio
             ad
             Fletam
          
           ,
           c.
           10.
           sect
           .
           2
           ,
           3.
           
        
         
           This
           Author
           ,
           L.
           1.
           c.
           5.
           tells
           us
           ,
           
             Superiorem
             non
             habet
             Rex
             in
             Regno
             nisi
             Deum
             &
             Legem
             .
             Per
             Legem
             factus
             est
             Rex
             temperent
             Reges
             potentiam
             suam
             per
             Legem
             .
             Non
             quod
             principi
             placet
             Legis
             habet
             potestatem
             .
             Non
             quicquid
             de
             voluntate
             Regis
             sed
             quod
             magnatum
             suorum
             Consilio
             Regia
             authoritate
             prestante
             &
             habita
             super
             hoc
             deliberatione
             &
             tractatu
          
           
           
             recte
             fuerit
             diffinitum
          
           .
        
         
           Bracton
           ,
           who
           was
           a
           Judge
           in
           the
           time
           of
           King
           Henry
           the
           Third
           ,
           but
           wrote
           his
           Book
           in
           the
           time
           of
           King
           Henry
           the
           Second
           ,
           stiles
           the
           Laws
           of
           England
           ,
           the
           ancient
           Judgments
           of
           the
           Just.
           And
           Briton
           ,
           Bishop
           of
           Hereford
           ,
           who
           publish'd
           his
           Book
           5
           Edw.
           1.
           by
           the
           Command
           of
           that
           King
           ,
           and
           as
           written
           in
           the
           King's
           Name
           .
           And
           Sir
           
             Gilbert
             de
             Thornton
          
           ,
           who
           was
           a
           Chief
           Justice
           in
           Edward
           the
           First
           's
           time
           ,
           and
           reduced
           the
           Book
           of
           Bracton
           into
           a
           Compendium
           .
           And
           Sir
           
             John
             Fortescu
          
           ,
           another
           Chief
           Justice
           ,
           and
           afterwards
           Chancelor
           in
           the
           time
           of
           Henry
           the
           Sixth
           ,
           writ
           all
           to
           the
           same
           effect
           ,
           and
           almost
           
             totidem
             verbis
          
           .
        
         
           These
           Authors
           discourse
           altogether
           of
           the
           
             Imperia
             Legum
          
           ,
           as
           Livy
           calls
           it
           .
        
         
           And
           Laws
           thus
           made
           by
           an
           universal
           consent
           ,
           must
           needs
           be
           most
           equal
           ,
           and
           have
           a
           far
           greater
           veneration
           paid
           them
           by
           all
           sorts
           of
           men
           .
        
         
           The
           best
           men
           are
           but
           men
           ,
           and
           are
           sometimes
           transported
           with
           passion
           .
        
         
           The
           Laws
           alone
           are
           they
           that
           always
           speak
           with
           all
           persons
           ,
           high
           or
           low
           ,
           in
           one
           and
           the
           same
           impartial
           voice
           .
           The
           Law
           knows
           no
           favourites
           .
        
         
           Hence
           it
           is
           ,
           that
           Aristotle
           most
           significantly
           and
           elegantly
           says
           ,
        
         
         
           That
           the
           Law
           is
           a
           Mind
           without
           Affection
           ;
           that
           is
           ,
           it
           binds
           all
           alike
           ,
           and
           dispences
           with
           none
           ,
           the
           greatest
           Flies
           are
           no
           more
           able
           to
           break
           through
           these
           Cobwebs
           than
           the
           smaller
           .
        
         
           
             Imperatoria
             Majestas
             Legibus
             armata
             est
          
           ,
           says
           the
           Introduction
           to
           
           the
           Imperial
           Law
           ,
           These
           are
           the
           surest
           Arms
           and
           Guard
           about
           a
           Prince
           .
        
         
           Baldus
           ,
           the
           great
           Lawyer
           ,
           says
           ,
           
             Digna
             vox
             est
             Majestate
             Regnantis
             Legibus
             alligatum
             principem
             se
             profiteri
             .
          
        
         
           Sir
           
             Edward
             Cook
          
           ,
           in
           his
           2
           
             Inst.
             fol.
          
           27.
           observes
           ,
           that
           the
           Nobility
           of
           England
           have
           ever
           had
           the
           Laws
           of
           England
           in
           great
           reverence
           ,
           as
           their
           best
           Birth-right
           ,
           and
           so
           (
           says
           he
           )
           have
           the
           Kings
           of
           England
           ,
           as
           their
           principal
           Royalty
           belonging
           to
           their
           Crown
           .
        
         
           He
           there
           mentions
           our
           King
           Henry
           the
           First
           ,
           (
           the
           Son
           of
           him
           that
           is
           stiled
           Conqueror
           .
           )
           He
           wrote
           to
           Pope
           Paschal
           in
           this
           manner
           :
        
         
           
             Notum
             habeat
             sanctitas
             vestra
             quod
             me
             vivente
             (
             auxiliante
             Deo
             )
             dignitates
             &
             usus
             Regni
             nostri
             Angliae
             non
             imminuentur
             .
             Et
             si
             ego
             (
             quod
             absit
             )
             in
             tanta
             me
             dejectione
             ponerem
             ,
             Optimates
             mei
             &
             totus
             Angliae
             populus
             id
             nullo
             modo
             pateretur
             .
          
        
         
           And
           fol.
           98.
           there
           is
           mention
           of
           the
           Letters
           which
           all
           the
           Nobility
           of
           England
           ,
           by
           assent
           of
           the
           Commonalty
           ,
           in
           the
           time
           of
           Edward
           the
           First
           ,
           wrote
           to
           Pope
           
             Boniface
             ,
             viz.
             Ad
             Observationem
             &
             Defensionem
             consuetudinum
             &
             Legum
             Paternarum
             ex
             Debito
             prestiti
             Sacramenti
             astringimur
             quae
             manutenebimus
             toto
             posse
             totisque
             viribus
             (
             cum
             Dei
             auxilio
             )
             defendemus
             .
          
        
         
           
             Nec
             etiam
             permittimus
             aut
             aliquatenus
             permittemus
             tam
             insolita
             indebita
             prejudicialia
             &
             alias
             in
             audita
             Dominum
             nostrum
             Regem
             (
             etiam
             si
             vellet
             )
             facere
             seu
             quomodo
             libet
             attemptare
             :
          
           Sealed
           with
           the
           several
           Seals
           of
           Arms
           of
           104
           Earls
           and
           Barons
           .
        
         
           And
           the
           Noble
           King
           Edward
           the
           First
           took
           no
           offence
           at
           the
           stout
           and
           resolute
           penning
           of
           this
           Letter
           :
           but
           wrote
           himself
           to
           the
           Pope
           to
           the
           same
           effect
           .
        
         
           And
           yet
           it
           contains
           in
           it
           a
           kind
           of
           a
           
             Non
             obstante
          
           to
           what
           the
           King
           should
           do
           by
           way
           of
           submission
           and
           compliance
           with
           the
           Pope
           .
        
         
           Nor
           is
           a
           Just
           Law
           any
           restraint
           to
           a
           Just
           Liberty
           ,
           it
           rather
           frees
           us
           from
           a
           Captivity
           and
           Servitude
           ,
           viz.
           to
           that
           of
           our
           Wills
           and
           Passions
           .
           It
           is
           true
           ,
           this
           obligation
           and
           binding
           of
           the
           Law
           is
           very
           uneasie
           to
           such
           Men
           as
           will
           be
           slaves
           to
           their
           Lusts
           and
           Appetites
           .
        
         
           They
           cry
           out
           ,
           let
           us
           break
           these
           Bonds
           asunder
           ,
           and
           cast
           away
           these
           Cords
           from
           us
           ;
           but
           to
           such
           as
           are
           virtuous
           and
           just
           and
           pious
           ,
           the
           Laws
           are
           a
           Direction
           and
           Protection
           .
        
         
           The
           Orator
           truly
           says
           ,
           
             Legum
             id
             circo
             omnes
             servi
             sumus
             ut
             liberi
             esse
             possimus
             .
          
           The
           true
           English
           of
           which
           is
           ,
           that
           such
           service
           is
           perfect
           freedom
           .
           Hence
           our
           English
           Laws
           in
           
             Magna
             Charta
          
           are
           called
           Liberties
           .
           
             Concessimus
             omnibus
             hominibus
             regni
             nostri
             has
             libertates
             subscriptas
             ,
          
           (
           says
           King
           Henry
           the
           Third
           ,
           in
           the
           first
           Chapter
           of
           
             Magna
             Charta
          
           )
           which
           Sir
           
             Edward
             Cook
          
           expounds
           to
           be
           meant
           of
           the
           Laws
           of
           
             England
             ;
             quia
             liberos
             faciunt
          
           ,
           (
           says
           he
           )
           .
        
         
           And
           tho'
           this
           Statute
           of
           
             Magna
             Charta
          
           run
           in
           the
           stile
           of
           a
           Grant
           from
           the
           King
           ,
           in
           the
           word
           concessimus
           ,
           for
           the
           honour
           of
           the
           King
           ;
           yet
           as
           he
           says
           ,
           they
           were
           the
           Common
           Laws
           and
           Rights
           of
           the
           People
           before
           ,
           and
           it
           was
           made
           by
           the
           King
           ,
           Lords
           and
           Commons
           ,
           as
           is
           recited
           by
           the
           Statute
           of
           15
           Ed.
           3.
           c.
           1.
           
        
         
         
           Thus
           it
           appears
           what
           the
           true
           Nature
           and
           Properties
           of
           a
           Just
           Law
           are
           ;
           of
           how
           great
           Force
           and
           Authority
           a
           Law
           ought
           to
           be
           ;
           how
           dear
           and
           precious
           Laws
           have
           been
           heretofore
           to
           Prince
           and
           People
           ,
           and
           whence
           they
           have
           their
           Birth
           and
           Original
           .
        
         
           Thirdly
           ,
           I
           come
           now
           to
           that
           Notion
           or
           Invention
           of
           a
           Dispensation
           ,
           
           the
           Power
           of
           relaxing
           or
           dispensing
           with
           a
           Law
           ,
           and
           enquire
           into
           the
           Original
           and
           Nature
           of
           it
           ,
           and
           the
           great
           Mischief
           that
           hath
           arisen
           from
           it
           .
        
         
           The
           Pretence
           for
           the
           Use
           or
           Need
           of
           a
           Power
           of
           Dispensing
           is
           this
           ,
           viz.
           There
           is
           no
           Providence
           or
           Wisdom
           of
           Man
           ,
           nor
           of
           any
           Council
           of
           Men
           ,
           that
           can
           foresee
           and
           provide
           for
           all
           Events
           and
           variety
           of
           Cases
           ,
           that
           will
           or
           may
           arise
           upon
           the
           making
           of
           a
           new
           Law.
           
        
         
           But
           a
           new
           Law
           may
           sit
           heavy
           upon
           some
           particular
           persons
           ,
           or
           in
           some
           extraordinary
           Case
           that
           may
           happen
           ,
           let
           what
           care
           can
           be
           taken
           in
           the
           penning
           of
           it
           .
        
         
           It
           is
           enough
           to
           commend
           a
           Law
           ,
           if
           it
           be
           beneficial
           to
           the
           greater
           number
           ,
           and
           be
           for
           the
           publick
           good
           ;
           Laws
           are
           fitted
           
             Ad
             ea
             quae
             frequentius
             Accidunt
          
           ,
           and
           not
           for
           rare
           and
           extraordinary
           Events
           and
           Accidents
           ,
           as
           the
           Romans
           had
           no
           Law
           against
           Parricide
           .
        
         
           And
           the
           Law
           says
           ,
           better
           is
           a
           Mischief
           than
           an
           Inconvenience
           .
        
         
           By
           a
           Mischief
           is
           meant
           ,
           when
           one
           Man
           or
           some
           few
           Men
           suffer
           by
           the
           hardship
           of
           a
           Law
           ,
           which
           Law
           is
           yet
           useful
           for
           the
           Publick
           .
        
         
           But
           an
           Inconvenience
           is
           to
           have
           a
           Publick
           Law
           disobey'd
           or
           broken
           ,
           or
           an
           Offence
           to
           go
           unpunished
           .
        
         
           Now
           from
           this
           suppos'd
           and
           imaginary
           defect
           of
           Law
           ,
           or
           some
           particular
           mischief
           or
           hardship
           sometimes
           (
           tho'
           very
           rarely
           )
           happening
           to
           some
           Men
           ,
           which
           hardship
           was
           not
           foreseen
           by
           the
           Makers
           of
           the
           Law
           ,
           (
           altho'
           this
           is
           oftner
           pretended
           and
           feigned
           then
           hapning
           in
           truth
           )
           occasion
           hath
           been
           taken
           to
           assert
           a
           Power
           in
           the
           Prince
           or
           chief
           Ruler
           ,
           to
           dispence
           with
           the
           Law
           in
           extraordinary
           Cases
           ,
           and
           to
           give
           ease
           or
           relaxation
           to
           the
           person
           that
           was
           too
           hard
           bound
           or
           tied
           to
           a
           Law
           ;
           for
           ,
           as
           I
           observ'd
           before
           ,
           the
           Law
           is
           of
           a
           binding
           and
           restraining
           nature
           and
           quality
           ,
           It
           hath
           the
           same
           specious
           pretence
           as
           a
           Law
           made
           31
           H.
           8.
           c.
           8.
           had
           ,
           which
           was
           of
           most
           desperate
           and
           dangerous
           consequence
           ,
           had
           it
           not
           speedily
           been
           repealed
           by
           the
           Statute
           of
           1
           E.
           6.
           c.
           12.
           
        
         
           The
           Title
           of
           that
           mischievous
           Act
           of
           31
           H.
           8.
           is
           this
           :
           
             An
             Act
             that
             Proclamations
             made
             by
             the
             King's
             Highness
             ,
             with
             the
             Advice
             of
             the
             Honourable
             Council
             ,
          
           (
           meant
           of
           the
           Privy
           Council
           )
           
             shall
             be
             obey'd
             and
             kept
             as
             tho'
             they
             were
             made
             by
             Act
             of
             Parliament
             .
          
        
         
           The
           Preamble
           recites
           the
           King
           ,
           by
           Advice
           of
           his
           Council
           ,
           had
           thentofore
           set
           forth
           sundry
           Proclamations
           concerning
           Articles
           of
           Religion
           ,
           and
           for
           an
           Unity
           and
           Concord
           to
           be
           had
           among
           his
           Subjects
           ,
           which
           nevertheless
           many
           froward
           ,
           wilful
           and
           obstinate
           persons
           ,
           have
           wilfully
           contemned
           and
           broken
           ,
           not
           considering
           what
           a
           King
           by
           his
           Royal
           Power
           may
           do
           :
           and
           for
           lack
           of
           a
           direct
           Statute
           and
           Law
           to
           coherce
           Offenders
           to
           obey
           those
           Proclamations
           ,
           which
           being
           still
           suffered
           ,
           should
           encourage
           Offenders
           to
           the
           disobedience
           of
           the
           Laws
           of
           God
           ,
           and
           sound
           too
           much
           to
           the
           great
           dishonour
           of
           the
           King
           's
           most
           Royal
           Majesty
           ,
           (
           who
           may
           full
           ill
           bear
           it
           .
           )
        
         
           Considering
           also
           ,
           that
           sudden
           Occasions
           fortune
           many
           times
           which
           do
           require
           speedy
           Remedies
           ,
           and
           that
           by
           abiding
           for
           a
           Parliament
           ,
           in
           the
           mean
           time
           might
           happen
           great
           prejudice
           to
           ensue
           to
           the
           Realm
           :
           
           and
           weighing
           that
           his
           Majesty
           (
           which
           by
           the
           Regal
           Power
           given
           him
           by
           God
           ,
           may
           do
           many
           things
           in
           such
           Cases
           )
           should
           not
           be
           driven
           to
           extend
           the
           Supremacy
           of
           his
           Regal
           Power
           ,
           by
           wilfulness
           of
           froward
           Subjects
           :
           It
           is
           therefore
           thought
           necessary
           ,
           that
           the
           King's
           Highness
           of
           this
           Realm
           for
           the
           time
           being
           ,
           with
           the
           Advice
           of
           his
           Council
           ,
           should
           make
           Proclamations
           for
           the
           good
           Order
           and
           Governance
           of
           this
           Realm
           of
           
             England
             ,
             Wales
          
           ,
           and
           other
           his
           Dominions
           ,
           from
           time
           to
           time
           ,
           for
           the
           Defence
           of
           his
           Regal
           Dignity
           ,
           as
           the
           Cases
           of
           Necessity
           shall
           require
           .
        
         
           Therefore
           it
           is
           enacted
           ,
           that
           always
           the
           King
           ,
           for
           the
           time
           being
           ,
           with
           the
           Advice
           of
           his
           Council
           ,
           whose
           Names
           thereafter
           follow
           ,
           (
           and
           all
           the
           great
           Officers
           of
           State
           are
           mentioned
           by
           the
           Titles
           of
           their
           Offices
           only
           )
           for
           the
           time
           being
           ,
           or
           the
           greater
           number
           of
           them
           ,
           may
           set
           forth
           at
           all
           times
           ,
           by
           Authority
           of
           this
           Act
           ,
           his
           Proclamations
           ,
           under
           such
           Penalties
           ,
           and
           of
           such
           sort
           as
           to
           his
           Highness
           and
           his
           Council
           ,
           or
           the
           more
           part
           of
           them
           shall
           seem
           requisite
           .
           And
           that
           the
           same
           shall
           be
           obey'd
           ,
           as
           tho'
           they
           were
           made
           by
           Act
           of
           Parliament
           ,
           unless
           the
           King's
           Highness
           dispence
           with
           them
           under
           his
           Great
           Seal
           .
        
         
           Here
           ,
           at
           one
           blow
           ,
           is
           the
           whole
           Legislative
           Power
           put
           into
           the
           King's
           hands
           ,
           and
           there
           was
           like
           to
           be
           no
           further
           use
           of
           Parliaments
           had
           this
           continued
           .
        
         
           Then
           there
           follows
           a
           Clause
           ,
           that
           would
           seem
           to
           qualifie
           and
           moderate
           this
           excess
           of
           Power
           ,
           but
           it
           is
           altogether
           repugnant
           and
           contradictory
           in
           it self
           .
        
         
           And
           the
           Conviction
           for
           any
           Offence
           against
           any
           such
           Proclamation
           ,
           is
           directed
           not
           to
           be
           by
           a
           Jury
           ,
           but
           by
           Confession
           or
           lawful
           Witness
           and
           Proofs
           .
        
         
           And
           if
           any
           Offender
           against
           any
           such
           Proclamation
           ,
           after
           the
           Offence
           committed
           ,
           to
           avoid
           the
           Penalty
           ,
           wilfully
           depart
           the
           Realm
           ,
           he
           is
           adjudged
           a
           Traytor
           .
        
         
           And
           the
           Justices
           of
           Peace
           are
           to
           put
           these
           Proclamations
           into
           execution
           in
           every
           County
           .
           And
           by
           another
           Act
           of
           34
           ,
           and
           35
           H.
           8.
           c.
           23.
           
           Nine
           of
           the
           Great
           Offices
           are
           made
           a
           
             Quorum
             ,
             &c.
          
           for
           they
           could
           not
           get
           half
           the
           number
           to
           act
           under
           it
           .
        
         
           The
           Act
           of
           1
           E.
           6.
           c.
           12.
           (
           which
           repeals
           the
           terrible
           Law
           )
           begins
           with
           a
           mild
           and
           merciful
           Preamble
           ,
           and
           mentions
           that
           Act
           of
           King
           H.
           8.
           which
           as
           this
           Act
           of
           E.
           6.
           does
           prudently
           observe
           ,
           might
           seem
           to
           Men
           of
           Foreign
           Realms
           ,
           and
           to
           many
           of
           the
           King's
           Subjects
           ,
           very
           strict
           ,
           sore
           ,
           extream
           and
           terrible
           ;
           this
           Act
           of
           King
           E.
           6.
           does
           therefore
           ,
           by
           express
           mention
           of
           that
           Terrible
           Act
           ,
           wholly
           repeal
           it
           .
           And
           so
           that
           Law
           (
           to
           use
           the
           Lord
           Bacon's
           phrase
           )
           was
           honourably
           laid
           in
           its
           Grave
           .
        
         
           And
           God
           grant
           it
           may
           never
           rise
           again
           .
        
         
           It
           is
           very
           probable
           ,
           that
           this
           Terrible
           Law
           was
           drawn
           by
           King
           Henry
           the
           Eighth's
           own
           hand
           ,
           by
           that
           expression
           in
           it
           ,
           
             that
             the
             King
             may
             full
             ill
             bear
             the
             Disobeying
             of
             his
             Proclamations
             ,
             and
             the
             dishonour
             done
             to
             him
             by
             it
          
           ;
           and
           by
           several
           other
           Clauses
           .
           The
           History
           of
           the
           
             Reformation
             ,
             fol.
          
           262.
           mentions
           the
           Draught
           of
           a
           Bill
           intended
           for
           an
           Act
           of
           Parliament
           ,
           concerning
           giving
           the
           King
           Power
           of
           Erecting
           many
           new
           Bishopricks
           ,
           by
           his
           Letters
           Patents
           ;
           upon
           which
           the
           Author
           of
           that
           History
           says
           ,
           that
           the
           Preamble
           ,
           and
           material
           parts
           of
           it
           ,
           were
           drawn
           by
           King
           H.
           8.
           himself
           ,
           and
           the
           first
           Draught
           of
           it
           ,
           under
           his
           hand
           ,
           is
           still
           extant
           ;
           and
           this
           passed
           the
           Lords
           ,
           and
           was
           sent
           down
           to
           
           the
           Commons
           :
           and
           this
           is
           the
           very
           same
           Parliament
           of
           31
           H.
           8.
           when
           this
           terrible
           Law
           passed
           .
        
         
           Sir
           
             Edw.
             Cook
          
           ,
           in
           his
           first
           
             Inst.
             fol.
          
           99.
           defines
           a
           Dispensation
           thus
           :
           
             Dispensatio
             est
             mali
             prohibiti
             provida
             relaxatio
             utilitate
             seu
             necessitate
             pensata
             .
          
        
         
           So
           that
           great
           utility
           ,
           or
           necessity
           ,
           are
           at
           least
           pretended
           for
           the
           granting
           of
           them
           ;
           now
           publick
           utility
           and
           necessity
           are
           the
           true
           grounds
           and
           foundation
           of
           all
           Laws
           ,
           (
           which
           I
           have
           already
           shewn
           ,
           bind
           all
           Men
           alike
           ,
           without
           respect
           of
           person
           )
           But
           a
           Dispensation
           does
           untie
           that
           Knot
           ,
           or
           slackens
           and
           lets
           loose
           that
           Obligation
           ,
           as
           to
           some
           particular
           persons
           ,
           and
           in
           some
           cases
           ,
           and
           for
           some
           limited
           time
           ,
           at
           the
           will
           and
           pleasure
           of
           the
           Prince
           that
           exercises
           that
           Power
           .
        
         
           It
           looks
           like
           a
           Dispensation
           which
           Naaman
           the
           Syrian
           obtained
           from
           the
           Prophet
           
             Elisha
             .
             In
             this
             thing
          
           (
           that
           is
           in
           one
           particular
           )
           
             the
             Lord
             pardon
             thy
             servant
             to
             bow
             down
             himself
             in
             the
             house
             of
          
           Rimmon
           ,
           
             when
             his
             Master
             the
             King
             did
             so
             .
          
           He
           calls
           it
           a
           Pardon
           ,
           but
           it
           rather
           was
           an
           Indulgence
           or
           Dispensation
           that
           he
           crav'd
           .
           A
           Pardon
           is
           properly
           of
           an
           Offence
           already
           committed
           .
           See
           Dr.
           Field
           ,
           Dean
           of
           Gloucester
           ,
           in
           his
           Treatise
           of
           the
           Church
           ,
           printed
           at
           Oxford
           ,
           1628.
           fol.
           475.
           what
           a
           Dispensation
           is
           ,
           viz.
           It
           is
           in
           respect
           of
           certain
           persons
           ,
           times
           ,
           places
           ,
           and
           conditions
           of
           men
           and
           things
           .
           So
           that
           a
           Dispensation
           ,
           permitting
           the
           Law
           to
           retain
           her
           wonted
           Authority
           ,
           only
           freeth
           some
           particular
           person
           or
           persons
           ,
           at
           some
           times
           in
           some
           places
           ,
           and
           in
           some
           condition
           of
           things
           from
           the
           necessity
           of
           doing
           or
           leaving
           undone
           that
           which
           (
           unless
           it
           be
           in
           consideration
           of
           such
           particular
           circumstances
           )
           ought
           to
           be
           done
           .
        
         
           A
           Dispensation
           is
           of
           a
           thing
           future
           ,
           to
           allow
           of
           a
           thing
           to
           be
           done
           ,
           that
           it
           may
           not
           be
           accompted
           for
           a
           Crime
           ,
           and
           makes
           the
           thing
           prohibited
           lawful
           to
           be
           done
           .
           And
           thereupon
           the
           Chief
           Justice
           Vaughan
           ,
           in
           his
           Argument
           of
           the
           Case
           of
           Thomas
           and
           Sorrel
           ,
           seems
           to
           take
           it
           in
           its
           right
           Notion
           ,
           when
           he
           says
           a
           Dispensation
           obtain'd
           ,
           does
           
             Jus
             dare
             Tho'
          
           he
           quarrels
           with
           Sir
           Cook
           's
           Definition
           of
           it
           ,
           and
           says
           ,
           it
           is
           
             Ignotum
             per
             Ignotius
          
           .
           But
           ,
           under
           his
           favour
           ,
           if
           he
           dislik'd
           that
           ,
           he
           should
           have
           given
           us
           a
           better
           .
           
             Carpere
             vel
             noli
             nostra
             ,
             &c.
             
          
        
         
           1.
           
           I
           know
           very
           well
           ,
           that
           there
           are
           some
           of
           late
           ,
           that
           do
           ground
           this
           Power
           upon
           the
           Soveraignty
           of
           the
           Prince
           ,
           as
           if
           to
           be
           Soveraign
           ,
           and
           to
           be
           Absolute
           ,
           and
           
             Solutus
             à
             Legibus
          
           ,
           were
           one
           and
           the
           same
           thing
           .
           As
           if
           it
           were
           inconsistent
           for
           a
           Soveraign
           Prince
           to
           be
           bound
           to
           Law.
           
        
         
           A
           Prince
           may
           be
           a
           Soveraign
           ,
           
             i.
             e.
          
           no
           subordinate
           or
           subject
           Prince
           .
           
             Rex
             est
             qui
             Regem
             Maxime
             not
             habeat
             ,
          
           and
           yet
           not
           absolute
           and
           unlimitted
           in
           Power
           .
           It
           is
           a
           frequent
           Argument
           ,
           and
           often
           disputed
           in
           our
           Books
           ,
           what
           Law
           the
           King
           is
           bound
           to
           ,
           and
           where
           he
           is
           not
           included
           in
           the
           Law.
           
        
         
           2.
           
           It
           hath
           been
           argued
           ,
           that
           because
           the
           Laws
           are
           the
           King's
           Laws
           ,
           that
           therefore
           the
           King
           may
           dispence
           with
           the
           Laws
           :
           this
           Argument
           is
           of
           a
           vast
           extent
           in
           the
           consequence
           ,
           as
           that
           of
           the
           Soveraignty
           is
           .
           But
           it
           is
           not
           the
           King
           alone
           that
           makes
           the
           Laws
           ,
           and
           tho'
           they
           are
           indeed
           his
           Laws
           
             per
             Eminentiam
          
           ,
           and
           
             Denominatio
             sumitur
             à
             majore
          
           ,
           yet
           others
           have
           an
           hand
           in
           the
           making
           our
           Laws
           ,
           and
           a
           Propriety
           and
           Interest
           in
           them
           when
           once
           they
           are
           made
           .
        
         
           We
           shall
           be
           best
           instructed
           in
           the
           Use
           and
           Nature
           of
           a
           Dispensation
           ,
           if
           we
           give
           some
           Instances
           of
           particular
           Cases
           ,
           wherein
           Dispensations
           have
           
           been
           allowed
           good
           by
           our
           Judges
           ,
           against
           the
           Penalties
           of
           some
           particular
           Acts
           of
           Parliament
           .
           For
           example
           ,
        
         
           By
           a
           certain
           Statute
           ,
           Gascoign
           Wines
           and
           other
           Foreign
           Goods
           were
           
           prohibited
           to
           be
           imported
           into
           this
           Kingdom
           ,
           but
           in
           English
           Ships
           ,
           under
           the
           penalty
           of
           forfeiting
           the
           Goods
           ,
           and
           it
           was
           a
           profitable
           Law
           for
           the
           encrease
           of
           our
           Navy
           and
           employment
           of
           our
           own
           Mariners
           ,
           wherein
           the
           strength
           and
           safety
           of
           the
           Kingdom
           is
           concerned
           .
           This
           importing
           of
           Foreign
           Goods
           in
           Foreign
           Ships
           was
           the
           Malum
           ,
           but
           it
           was
           only
           
             Malum
             prohibitum
          
           ;
           that
           is
           ,
           it
           was
           no
           offence
           till
           the
           Law
           made
           it
           so
           .
           It
           was
           not
           
             Malum
             in
             se.
          
           It
           was
           therefore
           resolv'd
           by
           all
           the
           Judges
           ,
           2
           R.
           3.
           fol.
           12.
           that
           the
           King
           might
           dispence
           with
           this
           Law
           ,
           
             Cum
             Clausula
             non
             obstante
          
           ,
           and
           might
           give
           License
           to
           some
           particular
           persons
           to
           import
           such
           Foreign
           Goods
           in
           Foreign
           Ships
           .
        
         
           That
           which
           before
           this
           Act
           of
           Parliament
           was
           a
           common
           Liberty
           and
           Trade
           ,
           by
           occasion
           of
           this
           Law
           ,
           applying
           the
           Prerogative
           of
           dispensing
           to
           it
           ,
           was
           now
           engross'd
           into
           some
           few
           hands
           ,
           from
           whence
           a
           Revenue
           it
           's
           likely
           was
           rais'd
           ;
           so
           that
           it
           might
           be
           said
           ,
           Sin
           took
           occasion
           by
           the
           Law.
           
        
         
           By
           the
           Statute
           of
           17
           R.
           2.
           c.
           5.
           no
           Aulnager
           or
           Weigher
           of
           Wool
           shall
           have
           any
           Lease
           for
           Life
           or
           Years
           of
           his
           Office
           ,
           and
           if
           any
           Charter
           or
           Letters
           Patents
           be
           made
           to
           the
           contrary
           ,
           (
           the
           Statute
           says
           )
           they
           shall
           be
           null
           and
           void
           :
           so
           that
           the
           Makers
           of
           this
           Law
           did
           not
           allow
           of
           any
           Dispensing
           Power
           ,
           but
           provided
           against
           it
           ,
           which
           shews
           what
           Opinion
           a
           Parliament
           hath
           of
           Dispensations
           .
           Yet
           it
           was
           resolv'd
           ,
           Dyer
           303.
           that
           the
           King
           ,
           by
           a
           
             Non
             obstante
          
           ,
           might
           dispence
           with
           this
           Law.
           The
           Judges
           indeed
           were
           of
           that
           Judgment
           ,
           but
           the
           Parliament
           ,
           who
           are
           the
           supreamest
           Judges
           ,
           plainly
           appear
           to
           be
           of
           a
           contrary
           judgment
           .
        
         
           By
           a
           Statute
           made
           1
           H.
           4.
           he
           that
           petitions
           to
           the
           King
           for
           Lands
           ,
           &c.
           in
           his
           Petition
           is
           to
           mention
           the
           Value
           of
           the
           thing
           ,
           &c.
           or
           else
           the
           King's
           Letters
           Patents
           ,
           &c.
           shall
           be
           of
           no
           effect
           :
           and
           yet
           Letters
           Patents
           to
           the
           contrary
           ,
           are
           good
           with
           a
           
             Non
             obstante
          
           .
        
         
           By
           the
           Statute
           of
           33
           H.
           8.
           c.
           24.
           for
           avoiding
           Partiality
           and
           Favour
           in
           administring
           Justice
           ,
           no
           man
           is
           to
           exercise
           the
           Office
           of
           a
           Judge
           of
           Assize
           in
           the
           County
           where
           he
           was
           born
           or
           dwells
           ,
           under
           100
           l.
           penalty
           ;
           and
           divers
           former
           Acts
           had
           been
           made
           to
           the
           same
           purpose
           ,
           as
           8
           R.
           2.
           c.
           2
           ,
           &c.
           yet
           this
           we
           know
           is
           frequently
           dispenc'd
           with
           by
           a
           special
           
             Non
             obstante
          
           ;
           so
           that
           these
           Statutes
           are
           seldom
           or
           never
           observ'd
           ,
           and
           are
           of
           little
           use
           .
           So
           likewise
           is
           the
           Statute
           of
           7
           Ed.
           6.
           c.
           5.
           for
           Retailing
           of
           Wine
           ,
           according
           to
           the
           Resolution
           in
           the
           Case
           of
           Thomas
           and
           Sorrel
           .
        
         
           These
           may
           suffice
           to
           shew
           what
           is
           meant
           by
           the
           Term
           Dispensation
           ,
           and
           what
           the
           Nature
           of
           a
           
             Non
             obstante
          
           is
           .
        
         
           It
           is
           an
           Indulging
           of
           a
           Priviledge
           to
           some
           particular
           Person
           ,
           or
           to
           a
           
           Corporation
           ,
           allowing
           him
           or
           them
           to
           do
           a
           thing
           that
           is
           prohibited
           by
           some
           Act
           of
           Parliament
           ,
           (
           under
           a
           Penalty
           )
           without
           incurring
           the
           Penalty
           .
           The
           doing
           whereof
           was
           lawful
           to
           all
           ,
           till
           that
           particular
           Law
           did
           make
           it
           an
           Offence
           to
           do
           it
           .
        
         
           The
           Chief
           Justice
           Vaughan
           ,
           who
           argued
           in
           his
           turn
           the
           last
           but
           one
           of
           all
           the
           twelve
           Judges
           ,
           in
           the
           late
           great
           Case
           of
           Thomas
           and
           Sorrel
           ,
           (
           and
           there
           was
           hardly
           a
           Case
           in
           all
           the
           Books
           under
           that
           Title
           ,
           but
           what
           had
           been
           cited
           by
           one
           or
           other
           ,
           and
           all
           the
           Rules
           and
           Distinctions
           were
           there
           remembred
           )
           yet
           that
           Chief
           Justice
           ,
           after
           all
           ,
           says
           ,
           that
           not
           
           one
           steady
           Rule
           had
           been
           given
           either
           by
           the
           Books
           ,
           or
           any
           of
           the
           Judges
           ,
           (
           that
           argued
           before
           him
           .
           )
           And
           for
           that
           trite
           Distinction
           ,
           so
           generally
           used
           of
           
             Malum
             in
             se
             &
             malum
             prohibitum
             ,
          
           the
           Chief
           Justice
           Vaughan
           professes
           ,
           that
           Rule
           hath
           more
           confounded
           mens
           judgments
           than
           rectified
           them
           :
           yet
           he
           himself
           gives
           us
           no
           other
           .
        
         
           Which
           shews
           ,
           that
           the
           Notion
           of
           Dispensation
           is
           not
           very
           ancient
           with
           us
           in
           our
           Law
           ,
           and
           is
           but
           rare
           ,
           and
           as
           yet
           unform'd
           ,
           not
           licked
           into
           a
           perfect
           shape
           ,
           (
           I
           mean
           still
           Dispensations
           with
           some
           Acts
           of
           Parliament
           ,
           such
           as
           this
           of
           25
           Car.
           2.
           not
           the
           granting
           
             Non
             obstante's
          
           as
           to
           mis-recitals
           or
           non-recitals
           in
           Grants
           of
           Lands
           ,
           &c.
           )
        
         
           It
           having
           yet
           no
           steady
           Rule
           ,
           and
           yet
           being
           frequently
           used
           ,
           it
           is
           the
           more
           fit
           for
           the
           Supreme
           Court
           to
           give
           some
           certain
           Rule
           in
           it
           ,
           that
           may
           regulate
           and
           guide
           the
           Judgment
           of
           Inferiour
           Courts
           :
           and
           this
           is
           the
           proper
           work
           of
           the
           King
           and
           Parliament
           .
        
         
           And
           because
           we
           find
           it
           a
           growing
           Mischief
           ,
           and
           getting
           ground
           upon
           the
           Law
           ,
           and
           every
           day
           brings
           forth
           new
           Precedents
           ,
           it
           is
           high
           time
           that
           a
           stop
           were
           put
           to
           it
           .
           
             
               So
               much
               for
               the
               Nature
               of
               a
               Dispensation
               .
            
          
        
         
           I
           shall
           in
           the
           next
           place
           endeavour
           to
           trace
           out
           the
           Original
           of
           this
           Invention
           of
           a
           Dispensation
           ,
           when
           it
           first
           began
           ,
           and
           who
           was
           the
           Author
           
           of
           it
           ,
           and
           shew
           ,
           that
           it
           was
           look'd
           upon
           as
           a
           Monster
           ,
           and
           exclaim'd
           against
           by
           Kings
           and
           States
           and
           all
           Good
           Men
           ,
           and
           yet
           the
           Precedent
           was
           followed
           ,
           and
           the
           Abuse
           of
           it
           spread
           and
           increas'd
           ,
           and
           hath
           been
           ever
           since
           growing
           .
        
         
           I
           am
           not
           the
           first
           that
           have
           undertaken
           to
           make
           this
           discovery
           :
           In
           the
           Argument
           of
           the
           Case
           of
           Comendam
           ,
           in
           Sir
           Davy's
           Reports
           ,
           fol.
           69.
           b.
           It
           is
           said
           ,
           that
           the
           
             Non
             obstante
          
           was
           invented
           and
           first
           used
           in
           the
           Court
           of
           Rome
           ,
           and
           they
           bring
           an
           *
           Author
           that
           denounc'd
           a
           Woe
           against
           that
           Court
           ,
           for
           introducing
           so
           ill
           a
           Precedent
           ,
           mischievous
           to
           all
           Common-wealths
           in
           Christendom
           ;
           for
           the
           Temporal
           Princes
           perceiving
           the
           Pope
           to
           dispence
           with
           his
           Canons
           ,
           in
           imitation
           of
           him
           ,
           have
           used
           it
           as
           a
           Prerogative
           to
           dispence
           with
           their
           Penal
           Laws
           and
           Statutes
           ,
           where
           before
           they
           caused
           their
           Laws
           to
           be
           religiously
           observ'd
           ,
           as
           the
           Laws
           of
           the
           Medes
           and
           Persians
           ,
           which
           might
           not
           be
           changed
           .
           Thus
           says
           that
           Report
           :
           Here
           we
           see
           from
           whence
           't
           was
           borrow'd
           .
        
         
           The
           late
           Chief
           Justice
           Vaughan
           ,
           in
           his
           Report
           of
           the
           Case
           of
           Thomas
           and
           
             Sorrel
             ,
             fol.
          
           348.
           does
           acknowledge
           ,
           that
           the
           use
           of
           Dispensations
           was
           principally
           derived
           to
           us
           from
           the
           Pope
           .
        
         
           Now
           ,
           to
           make
           some
           conjecture
           about
           what
           time
           it
           began
           ,
           that
           we
           may
           discover
           how
           old
           it
           is
           ,
           and
           which
           of
           the
           Popes
           was
           the
           Author
           
           of
           it
           .
        
         
           The
           History
           of
           the
           Reformation
           ,
           fol.
           101.
           says
           ,
           this
           Power
           of
           Dispensing
           with
           the
           Laws
           of
           the
           Church
           by
           the
           Popes
           ,
           was
           brought
           in
           ,
           in
           the
           latter
           Ages
           .
           Popes
           
             Zozimus
             ;
             Damasus
             ,
             Leo
          
           ,
           ‖
           and
           Hilarius
           ,
           do
           freely
           acknowledge
           they
           could
           not
           change
           the
           Decrees
           of
           the
           Church
           .
        
         
           It
           is
           suppos'd
           ,
           it
           was
           first
           invented
           by
           Pope
           Innocent
           the
           Third
           ,
           about
           the
           beginning
           of
           the
           thirteenth
           Century
           ,
           and
           about
           the
           times
           of
           our
           King
           John
           ,
           and
           his
           Son
           King
           Henry
           the
           Third
           ;
           and
           it
           is
           observable
           ,
           that
           in
           this
           Pope's
           time
           the
           Doctrine
           of
           Transubstantiation
           was
           first
           decreed
           to
           be
           an
           Article
           of
           the
           Faith
           ,
           and
           this
           at
           the
           Council
           of
           †
           Lateran
           :
           that
           Doctrine
           ,
           which
           by
           this
           very
           Act
           of
           ours
           ,
           is
           to
           be
           declar'd
           against
           ,
           
           and
           is
           now
           dispens'd
           with
           .
           This
           is
           that
           Pope
           that
           excommunicated
           Otho
           the
           Emperour
           ,
           and
           our
           King
           John
           ,
           and
           forced
           him
           at
           last
           to
           resign
           his
           Crown
           ,
           and
           to
           take
           it
           back
           from
           him
           again
           to
           hold
           it
           of
           him
           at
           the
           Rent
           of
           1000
           Marks
           :
           What
           good
           issue
           can
           we
           expect
           from
           such
           a
           Father
           ?
        
         
           After
           the
           time
           of
           this
           Pope
           ,
           Dispensations
           began
           more
           frequently
           to
           be
           practised
           by
           the
           Successors
           of
           Innocent
           the
           Third
           ,
           by
           Honorius
           ,
           and
           by
           Pope
           Gregory
           the
           Ninth
           ,
           and
           Innocent
           the
           Fourth
           ,
           but
           they
           were
           exclaimed
           against
           by
           all
           Kings
           and
           Princes
           ,
           and
           by
           all
           the
           good
           and
           learned
           Writers
           of
           that
           Age
           ,
           which
           shews
           ,
           that
           they
           had
           not
           been
           ancient
           ,
           and
           that
           the
           Kings
           and
           Princes
           themselves
           had
           not
           then
           followed
           the
           ill
           example
           in
           Dispensing
           with
           their
           Laws
           ;
           for
           had
           they
           done
           so
           ,
           they
           could
           not
           with
           any
           confidence
           have
           condemn'd
           the
           Pope
           for
           using
           them
           .
        
         
           And
           we
           may
           see
           how
           odious
           these
           Dispensations
           were
           ,
           by
           the
           vile
           Epithites
           the
           Learned
           and
           Good
           Men
           of
           that
           Age
           gave
           them
           .
        
         
           We
           have
           a
           full
           Relation
           of
           it
           from
           one
           of
           their
           own
           Order
           ,
           a
           Monk
           ,
           but
           an
           Historian
           of
           very
           good
           esteem
           ,
           that
           is
           ,
           
             Matth.
             Paris
          
           ;
           he
           tells
           
           us
           ,
           that
           our
           King
           Henry
           the
           Third
           sent
           Earl
           Bigod
           and
           other
           Nobles
           to
           the
           Council
           at
           Lyons
           ,
           and
           amongst
           others
           ,
           one
           
             William
             de
             Powic
          
           ,
           one
           of
           his
           Procurators
           and
           a
           Clergy-man
           ,
           who
           made
           an
           Elegant
           Oration
           ,
           ripping
           up
           the
           horrible
           Oppressions
           used
           by
           the
           Pope
           upon
           England
           ,
           and
           then
           deliver'd
           in
           an
           Epistle
           ,
           directed
           to
           Pope
           Innocent
           the
           Fourth
           ,
           by
           the
           
             Magnates
             &
             Universitas
             Regni
             Angliae
          
           ,
           to
           the
           same
           effect
           .
           After
           this
           had
           been
           openly
           read
           in
           the
           Council
           ,
           and
           a
           mighty
           silence
           followed
           ,
           and
           the
           Pope
           gave
           no
           answer
           to
           it
           .
           The
           King's
           Proctors
           ,
           
             Prioribus
             addebant
             querimoniam
             gravem
             &
             seriam
             videlicet
             de
             violenta
             Oppressione
             ,
             intolerabili
             gravamine
             ,
             &
             impudenti
             Exactione
             ,
             &
             injuria
             ,
             quae
             per
             hanc
             Invisam
             Adjectionem
             papalibus
             Literis
             frequenter
             insertam
          
           (
           Non
           obstante
           )
           
             &c.
             exercetur
             per
             quam
             Jus
             pro
             nihilo
             habetur
             &
             Authentica
             scripta
             Enervantur
             ,
          
           says
           that
           Historian
           .
        
         
           The
           same
           Author
           says
           ,
           that
           the
           Reformation
           of
           many
           things
           was
           obtained
           from
           Pope
           
             Innocent
             :
             Sed
             omnia
             haec
             &
             alia
             ,
             per
             hoc
             Repagulum
          
           (
           Non
           obstante
           )
           
             infirmantur
             ubi
             vero
             fides
             !
             ubi
             jura
             ,
             quae
             scriptis
             solebant
             solidari
             ?
          
        
         
           Our
           King
           Henry
           the
           Third
           conven'd
           his
           Parliament
           ,
           and
           spread
           before
           them
           the
           Articles
           of
           the
           Grievances
           which
           he
           had
           so
           sent
           to
           Rome
           ,
           and
           amongst
           others
           one
           in
           these
           words
           :
           
             (
             viz.
             )
             Gravatur
             Regnum
             Angliae
          
           
           
             ex
             multiplici
             adventu
             illius
             infamis
             nuncii
          
           (
           Non
           obstante
           )
           
             per
             quem
             Juramenti
             religio
             ,
             consuetudines
             Antiquae
             ,
             scripturarum
             vigor
             ,
             concessionum
             autoritas
             ,
             Jura
             &
             privilegia
             debilitantur
             &
             evanescunt
             .
          
        
         
           We
           find
           it
           frequently
           termed
           
             (
             Detestabilis
             Adieclio
             Non
             obstante
          
           )
           and
           we
           find
           the
           form
           of
           his
           Dispensation
           running
           in
           these
           words
           :
           
             viz.
             Indulgentia
             quâcunque
             vel
             privilegio
             quolibet
             ,
             aut
             Constitutione
             in
             Generali
             Concilio
             edita
             ,
             Non
             obstante
             .
          
        
         
           The
           Pope
           afterwards
           required
           a
           third
           part
           of
           the
           Goods
           of
           all
           beneficed
           Clerks
           ,
           and
           (
           says
           that
           Historian
           )
           
             Multis
             adjectis
             durissimus
             Conditionibus
          
           ;
           and
           (
           amongst
           other
           )
           
             per
             illud
             verbum
             &
             adjectionem
             detestabilem
          
           (
           Non
           obstante
           )
           
             quae
             Omnem
             Extinguit
             Justiciam
          
           .
           *
        
         
         
           In
           another
           Bull
           he
           requires
           the
           payment
           of
           a
           Sum
           of
           Mony
           from
           the
           English
           Clergy
           ,
           
             Quocunque
             Privilegio
             seu
             Indulgentia
             Non
             obstante
             ,
             Licet
             presentes
             expressam
             de
             ipsis
             non
             faciant
             Menconem
             .
          
           This
           very
           Phrase
           is
           grown
           most
           familiar
           in
           Letters-Patents
           with
           us
           ,
           and
           we
           see
           from
           whence
           it
           hath
           been
           borrowed
           .
        
         
           That
           Temporal
           Princes
           at
           that
           time
           did
           not
           practise
           the
           like
           ,
           does
           evidently
           appear
           ,
           not
           only
           by
           their
           frequent
           Complaint
           of
           them
           ;
           but
           the
           Historian
           tells
           us
           ,
           It
           was
           then
           grievously
           feared
           ,
           that
           the
           Kings
           and
           Great
           Men
           would
           in
           time
           be
           infected
           with
           the
           ill
           Example
           of
           the
           Pope
           :
           his
           words
           are
           ,
           
             Quod
             multi
             formidabant
             vehementer
             .
             Ne
             Principes
             Laici
             &
             Seculares
             exemplo
             Papae
             Edocti
             Non
             obstante
             talis
             ,
             vel
             talis
             Chartae
             tenore
             :
          
           would
           revoke
           their
           Concessions
           too
           .
           Therefore
           as
           yet
           it
           was
           not
           in
           practice
           by
           Temporal
           Princes
           ,
           no
           not
           in
           Letters-Patents
           ,
           much
           less
           in
           Laws
           .
        
         
           I
           shall
           give
           one
           instance
           ,
           wherein
           we
           shall
           find
           the
           Pope
           teaching
           this
           very
           Lesson
           to
           the
           King
           of
           England
           ,
           (
           K.
           H.
           the
           3d
           )
           and
           instructing
           him
           as
           his
           Schollar
           ,
           to
           write
           after
           his
           Copy
           .
        
         
           King
           H.
           the
           Third
           had
           made
           several
           Grants
           to
           his
           Subjects
           (
           Bishops
           ,
           Noblemen
           ,
           and
           others
           )
           and
           had
           oblig'd
           himself
           by
           Oath
           never
           to
           revoke
           them
           .
        
         
           Pope
           Gregory
           the
           Ninth
           ,
           by
           his
           Bull
           ,
           (
           which
           Mr.
           Prin
           (
           who
           had
           the
           keeping
           of
           the
           Records
           in
           the
           Tower
           )
           says
           he
           found
           in
           the
           White
           Tower
           ,
           
           under
           Seal
           )
           the
           Pope
           commands
           the
           King
           to
           revoke
           these
           Grants
           ,
           
             Juramento
             &
             Instrument
             is
             predictis
             nequaquam
             obstantibus
             .
          
        
         
           King
           Henry
           the
           Third
           was
           easily
           taught
           this
           Lesson
           ,
           and
           did
           soon
           put
           it
           in
           practice
           ;
           and
           being
           reprov'd
           by
           some
           about
           him
           ,
           for
           using
           of
           
             Non
             Obstante's
          
           ,
           the
           King
           justified
           himself
           by
           the
           Example
           the
           Pope
           had
           given
           him
           :
           
             Nonne
             Papa
          
           (
           says
           he
           )
           
             facit
             similiter
             ,
             subjungens
             in
             Literis
          
           
           
             suis
             manifeste
             Non
             Obstante
             aliquo
             Privilegio
             vel
             indulgentia
             .
          
           But
           as
           yet
           it
           was
           not
           exercised
           as
           to
           Acts
           of
           Parliament
           ,
           till
           a
           long
           time
           after
           .
        
         
           What
           sad
           Apprehensions
           it
           rais'd
           in
           good
           Men
           ,
           may
           appear
           by
           an
           Example
           or
           two
           :
           When
           one
           of
           these
           Patents
           with
           a
           
             Non
             Obstante
          
           in
           it
           ,
           was
           produc'd
           in
           the
           Courts
           of
           Westminster
           ,
           one
           
             Roger
             de
             Thurkeby
          
           ,
           (
           who
           was
           a
           Judge
           of
           the
           Court
           of
           Common
           Pleas
           ,
           in
           the
           time
           of
           King
           Henry
           the
           Third
           )
           upon
           the
           hearing
           of
           it
           (
           says
           the
           Historian
           )
           
             Ab
             alto
             ducens
             suspiria
          
           (
           he
           fetcht
           a
           deep
           sigh
           )
           and
           ,
           
             De
             predictae
             adjectionis
             appositione
          
           :
           That
           is
           concerning
           this
           Clause
           or
           Addition
           of
           
             Non
             Obstante
             .
             Dixit
             heu
             !
             heu
             !
             hos
             ut
             quid
             dies
             expectavimus
             ecce
             jam
             Civilis
             Curia
             exemplo
             Ecclesiasticae
             Coinquinatur
             &
             a
             Sulphureo
             fonte
             Rivulus
             intoxicatur
             .
          
        
         
           This
           plainly
           shews
           the
           time
           when
           the
           use
           of
           them
           was
           first
           introduced
           into
           England
           in
           Civil
           and
           Temporal
           Cases
           ,
           they
           were
           not
           used
           before
           the
           time
           of
           King
           Henry
           the
           Third
           ,
           which
           is
           not
           ancient
           enough
           to
           make
           a
           Prescription
           by
           the
           Rules
           of
           our
           Law
           ,
           and
           we
           see
           from
           whence
           they
           learnt
           it
           .
        
         
           I
           shall
           now
           cite
           the
           Judgment
           of
           a
           Famous
           and
           Learned
           Bishop
           of
           those
           times
           ,
           concerning
           these
           
             Non
             Obstante's
          
           :
           that
           of
           
             Robert
             Grostest
          
           ,
           or
           Great-head
           ,
           who
           
             per
             excellentiam
          
           ,
           was
           generally
           stil'd
           no
           more
           ,
           but
           
             (
             Lincolniensis
          
           )
           in
           the
           Book
           of
           his
           that
           is
           Entituled
           ,
           
             De
             Cessatione
             Legalium
          
           ,
           Publish'd
           by
           the
           late
           Dean
           of
           Windsor
           (
           Dr.
           
             Reeves
             )
          
           :
           There
           are
           some
           Testimonies
           given
           of
           the
           Bishop
           ,
           out
           of
           Authors
           in
           the
           beginning
           of
           that
           Book
           :
           Among
           others
           ,
           it
           is
           remembred
           of
           him
           that
           he
           sent
           a
           smart
           Epistle
           to
           the
           then
           Pope
           ,
           wherein
           he
           does
           cry
           out
           upon
           the
           Pope
           ,
           for
           that
           the
           Pope's
           Bulls
           did
           superaccumulate
           (
           as
           he
           terms
           it
           )
           the
           words
           
             (
             Non
             Obstante
          
           )
           
           
           which
           words
           ,
           says
           that
           good
           Bishop
           of
           Lincoln
           ,
           did
           ,
           
             Christianae
             Religionis
             puritatem
             &
             hominum
             tranquillitatem
             perturbare
             :
          
           And
           he
           does
           thereupon
           affirm
           the
           Pope
           to
           be
           Antichrist
           :
           Nonne
           (
           says
           he
           )
           
             Antichristus
             merito
             dicendus
             est
          
           ?
           And
           to
           prove
           him
           to
           be
           Antichrist
           ,
           he
           further
           charges
           him
           :
           
             Privilegia
             Sanctorum
             Pontificum
             Romanorum
             praedecessorum
             suorum
             Papa
             impudentur
             annullare
             ,
             per
             hoc
             Repagulum
             (
             Non
             Obstante
             )
             non
             erubescit
             ,
             sic
             diruit
             ,
             &
             Reprobat
             ,
             quod
             tanti
             &
             tot
             Sancti
             aedificarunt
             .
          
        
         
           When
           Innocent
           the
           Fourth
           read
           this
           Bishop's
           Letter
           ,
           he
           fell
           a
           swearing
           by
           Peter
           and
           Paul
           ,
           that
           he
           would
           Confound
           him
           :
           
             In
             tantam
             confusionem
             praecipitaret
             ut
             totius
             mundi
             fabula
             foret
             ,
             stupor
             &
             prodigium
             :
          
           And
           that
           he
           would
           command
           the
           King
           of
           England
           ,
           (
           whom
           he
           there
           insolently
           term'd
           ,
           
             Noster
             Vasallus
          
           ,
           (
           a
           Tenant
           ,
           or
           Vavasor
           )
           :
           
             Et
             ut
             plus
             dicam
             Mancipium
          
           (
           his
           Property
           )
           
             illum
             nutu
             nostro
             in
             carcerare
          
           .
        
         
           But
           the
           Cardinals
           then
           about
           the
           Pope
           ,
           advised
           him
           to
           consider
           better
           of
           it
           ;
           for
           (
           said
           they
           )
           
             Ut
             vera
             fateamur
             vera
             sunt
             quae
             dicit
             ,
             Catholicus
             est
             ,
             imo
             &
             Sanctissimus
             .
          
        
         
           Of
           this
           Bishop
           (
           says
           Mr.
           Camden
           in
           his
           Britannia
           )
           he
           was
           ,
           
             Terrificus
             Papae
             &
             Regis
             Redargutor
             manifestissimus
             ,
             &
             veritatis
             amator
             .
             Henry
             de
             Knighton
          
           adds
           this
           of
           him
           :
           
             Ad
             Innocentium
             Papam
             misit
             Epistolam
             satis
             tonantem
             ,
          
           (
           a
           thundring
           Epistle
           )
           
             qua
             de
             re
             ad
             curiam
             vocatus
             &
             Excommunicatus
             appellavit
             a
             Curia
             Innocentii
             ad
             Tribunal
             Christi
             .
          
        
         
           And
           this
           Usurped
           Power
           ,
           tho'
           used
           with
           more
           modesty
           at
           first
           ,
           yet
           in
           a
           short
           time
           it
           grew
           to
           that
           heighth
           ,
           that
           it
           prov'd
           intolerable
           and
           insolent
           .
        
         
           The
           Bull
           of
           Pope
           Pius
           the
           Fourth
           ,
           publishes
           Decrees
           ,
           
             Non
             obstantibus
             Constitutionibus
             &
             Ordinationibus
             Apostolicis
             .
          
        
         
           Another
           Dispensation
           of
           the
           same
           Pope's
           runs
           in
           these
           words
           ,
           
             viz.
             Licet
             Christus
             post
             coenam
             instituerit
             sub
             utraque
             Specie
             Panis
             &
             Vini
             Venerabile
             Sacramentum
             ;
             tamen
             hoc
             Non
             Obstante
             ,
          
           &c.
           
           The
           Pope
           takes
           upon
           him
           to
           Dispense
           with
           that
           Sacred
           Institution
           :
           
             A
             conficientibus
          
           (
           for
           so
           he
           prophanely
           expresses
           it
           )
           
             sub
             utraque
             &
             a
             Laicis
             tantum
             modo
             sub
             Specie
             Panis
             suscipiatur
             .
          
        
         
           In
           the
           *
           Oath
           of
           a
           Bishop
           to
           the
           Pope
           (
           extant
           in
           the
           Roman
           Pontifical
           ,
           set
           out
           by
           Pope
           Clement
           the
           Eighth
           )
           the
           Bishop
           upon
           his
           Oath
           doth
           acknowledge
           amongst
           other
           
             Regalia
             Petri
          
           ,
           That
           the
           Pope
           can
           make
           void
           Promises
           ,
           Vows
           ,
           Oaths
           ,
           and
           Obligations
           to
           Laws
           ,
           by
           his
           Dispensations
           .
        
         
           Dr.
           
             Marta
             de
             Jurisdictione
          
           affirms
           ,
           That
           
             Papa
             de
             Plenitudine
             potestatis
             potest
             Dispensare
             contra
             jus
             Divinum
             ,
             &
             contra
             Apostolum
             ,
             est
             super
             omnia
             Concilia
             ,
             quae
             interpretatur
             ,
             tollit
             &
             Corrigit
             .
          
        
         
           The
           Glossator
           upon
           the
           Canon
           Law
           (
           avowed
           by
           the
           Rota
           of
           Rome
           (
           as
           the
           History
           of
           the
           Council
           of
           Trent
           does
           quote
           him
           )
           holds
           the
           Pope
           can
           Dispense
           against
           the
           Old
           Testament
           ,
           and
           the
           Four
           Evangelists
           ,
           and
           against
           the
           Law
           of
           God.
           
        
         
           Bishop
           Jewel
           ,
           in
           his
           Defence
           of
           
             The
             Apology
             of
             the
             Church
             of
             England
             ,
          
           against
           Harding
           ,
           brings
           in
           one
           of
           their
           Canonists
           that
           holds
           ,
           That
           the
           Pope
           ,
           
             Privilegium
             dare
             potest
             contra
             jus
             Divinum
             ,
             Papa
             Dispensare
             potest
             de
             Omnibus
             preceptis
             veteris
             &
             Novi
             Testamenti
             .
          
           It
           is
           part
           of
           the
           Description
           given
           of
           Antichrist
           ,
           by
           the
           Prophet
           Daniel
           ,
           chap.
           7.
           
           He
           shall
           think
           that
           he
           may
           change
           Times
           ,
           and
           Laws
           ,
           and
           they
           shall
           be
           given
           into
           his
           hands
           .
        
         
           Bishop
           Jewel's
           Exposition
           upon
           the
           Epistle
           to
           the
           Thessalonians
           ,
           fol.
           131.
           
           Antichrist
           (
           says
           the
           Bishop
           )
           is
           there
           called
           
             O.
             Anomos
          
           ,
           a
           Man
           without
           Order
           or
           Law
           ,
           that
           Man
           of
           Sin
           ;
           which
           is
           one
           of
           the
           peculiar
           Notes
           of
           
           Antichrist
           .
           He
           shall
           seek
           to
           be
           free
           and
           go
           at
           liberty
           ,
           he
           shall
           be
           tied
           to
           no
           Law
           neither
           of
           God
           nor
           Man.
           Hence
           it
           is
           said
           of
           the
           Pope
           ,
           that
           he
           is
           
             solutus
             omni
             Lege
             humana
             .
             In
             iis
             que
             vult
             ,
             est
             ei
             pro
             ratione
             voluntas
             nec
             est
             qui
             dicat
             illi
             ,
             Domine
             cur
             ita
             facis
             ?
             Ille
             potest
             supra
             jus
             ,
             dispensare
             &
             de
             Injustitia
             facere
             justiciam
             Corrigendo
             jura
             &
             mutando
             .
          
        
         
           Pope
           Martin
           the
           Fifth
           dispens'd
           with
           a
           Man
           that
           married
           his
           own
           Sister
           .
        
         
           In
           this
           last
           Instance
           the
           Pope
           did
           directly
           write
           after
           the
           Copy
           of
           an
           Heathen
           King.
           The
           story
           of
           Cambyses
           is
           the
           same
           Case
           in
           the
           very
           point
           with
           this
           last
           of
           Pope
           Martin
           .
           Sir
           
             Walter
             Raleigh
          
           mentions
           
           it
           in
           his
           History
           of
           the
           World.
           Cambyses
           inquir'd
           of
           his
           Judges
           whether
           there
           were
           any
           Law
           among
           the
           Persians
           ,
           that
           did
           permit
           the
           Brother
           to
           marry
           his
           own
           Sister
           .
           It
           was
           the
           intent
           of
           Cambyses
           to
           marry
           his
           own
           Sister
           too
           .
           The
           Judges
           (
           who
           as
           Sir
           
             Walter
             Raleigh
          
           observes
           )
           had
           either
           Laws
           or
           Distinctions
           in
           store
           to
           satisfie
           Kings
           and
           Times
           ,
           they
           make
           a
           subtil
           answer
           ,
           that
           there
           was
           not
           any
           thing
           written
           allowing
           any
           such
           marriage
           :
           But
           they
           notwithstanding
           found
           it
           in
           their
           Customs
           ,
           that
           it
           was
           always
           left
           to
           the
           Will
           of
           the
           Persian
           Kings
           to
           do
           what
           best
           pleas'd
           themselves
           .
           This
           was
           a
           
             Non
             obstante
          
           with
           a
           witness
           .
        
         
           This
           surely
           ,
           and
           the
           Popes
           practice
           together
           ,
           gave
           the
           occasion
           to
           Mr.
           Chillingworth's
           observation
           .
           He
           that
           would
           usurp
           (
           says
           he
           )
           an
           absolute
           
           Lordship
           over
           any
           People
           ,
           need
           not
           put
           himself
           to
           the
           trouble
           of
           abrogating
           or
           disannulling
           the
           Laws
           made
           to
           maintain
           the
           Common
           Liberty
           ,
           for
           he
           may
           frustrate
           their
           intent
           ,
           and
           compass
           his
           design
           as
           well
           if
           he
           can
           get
           the
           power
           and
           authority
           to
           interpret
           them
           as
           he
           pleases
           ,
           and
           to
           have
           his
           Interpretations
           stand
           for
           Laws
           .
           If
           he
           can
           Rule
           his
           People
           by
           his
           Laws
           ,
           and
           his
           Laws
           by
           his
           Lawyers
           ;
           therefore
           (
           says
           he
           )
           there
           is
           a
           necessity
           of
           a
           frequent
           resort
           to
           be
           had
           to
           the
           Law-makers
           ,
           not
           only
           to
           resolve
           Difficulties
           of
           Judgments
           ,
           but
           to
           keep
           the
           Power
           of
           Interpretation
           within
           its
           due
           bounds
           ;
           which
           is
           excellent
           advice
           .
        
         
           I
           shall
           give
           but
           one
           Instance
           more
           ,
           and
           that
           is
           of
           the
           most
           impious
           sort
           of
           Dispensations
           that
           could
           possibly
           be
           devised
           ;
           I
           find
           it
           in
           the
           History
           of
           the
           Church
           of
           Scotland
           ,
           written
           by
           Archbishop
           Spotswood
           .
           He
           tells
           us
           ,
           that
           in
           Anno
           1580.
           
           Dispensations
           were
           sent
           from
           Rome
           into
           Scotland
           ,
           whereby
           the
           Catholicks
           were
           permitted
           to
           promise
           ,
           swear
           ,
           subscribe
           and
           do
           what
           else
           should
           be
           requir'd
           of
           them
           ,
           so
           as
           
             in
             mind
          
           they
           continued
           firm
           ,
           and
           did
           use
           their
           diligence
           in
           secret
           to
           advance
           the
           Roman
           Faith.
           
        
         
           Thus
           we
           see
           the
           monstrous
           Abuses
           brought
           in
           by
           Dispensations
           :
           I
           have
           been
           something
           long
           upon
           this
           Subject
           ,
           but
           it
           was
           necessary
           to
           shew
           how
           that
           it
           is
           in
           the
           very
           nature
           of
           it
           ,
           to
           be
           stretching
           and
           growing
           ,
           and
           at
           last
           to
           be
           altogether
           unlimitted
           ,
           and
           will
           totally
           subvert
           the
           Law.
           
        
         
           Having
           thus
           laid
           my
           Foundation
           ,
           I
           shall
           now
           proceed
           from
           thence
           to
           raise
           my
           Arguments
           against
           Dispensations
           in
           general
           ,
           to
           prove
           ,
           that
           they
           are
           not
           Law
           ,
           but
           indeed
           contrary
           to
           Law
           and
           destructive
           of
           it
           .
        
         
           I
           hold
           there
           is
           no
           just
           nor
           lawful
           Power
           of
           Dispensing
           with
           any
           Act
           of
           Parliament
           ,
           in
           any
           other
           hands
           than
           in
           those
           that
           are
           the
           Law-makers
           ,
           that
           is
           ,
           in
           the
           King
           and
           Parliament
           in
           conjunction
           :
           (
           I
           confine
           my self
           to
           Dispensations
           with
           Acts
           of
           Parliament
           .
           )
        
         
         
           1.
           
           My
           first
           Argument
           shall
           be
           from
           the
           Nature
           of
           a
           Law
           ,
           (
           whereof
           an
           Act
           of
           Parliament
           is
           the
           highest
           and
           of
           greatest
           Authority
           .
           )
           A
           Law
           hath
           its
           Name
           (
           as
           I
           said
           before
           )
           from
           its
           Nature
           ,
           
             Lex
             à
             Ligando
          
           ,
           it
           binds
           and
           compels
           to
           Obedience
           ,
           and
           it
           binds
           together
           and
           cements
           ,
           it
           knits
           and
           unites
           a
           multitude
           of
           People
           ,
           and
           makes
           them
           all
           as
           it
           were
           but
           one
           body
           .
        
         
           Now
           a
           Dispensation
           is
           of
           a
           quite
           contrary
           nature
           ,
           and
           is
           destructive
           of
           Law
           :
           As
           the
           Law
           does
           Ligare
           ,
           a
           Dispensation
           does
           Relaxare
           .
           It
           is
           defin'd
           to
           be
           ,
           
             Relaxacio
             Juris
          
           :
           it
           does
           unbind
           and
           set
           loose
           the
           Obligation
           of
           the
           Law
           ,
           and
           by
           consequence
           tends
           to
           the
           dissolving
           of
           the
           Body
           Politick
           .
           Whatsoever
           is
           destructive
           of
           the
           Law
           cannot
           it self
           be
           Law
           ;
           for
           then
           the
           Law
           would
           be
           
             felo
             de
             se
             ,
             Lex
             quae
             Leges
             evertit
             ipsa
             Lex
             esse
             non
             potest
             ,
          
           a
           thing
           divided
           against
           it self
           ,
           and
           therefore
           will
           not
           stand
           .
           
             Ubi
             non
             est
             pudor
             ,
             nec
             cura
             juris
             ,
             instabile
             Regnum
             est
             ,
          
           (
           says
           
             Seneca
             .
          
           )
        
         
           Law
           is
           made
           by
           an
           universal
           consent
           and
           agreement
           of
           Prince
           and
           People
           .
        
         
           I
           have
           already
           shewn
           ,
           how
           that
           the
           Common
           Law
           (
           which
           is
           as
           ancient
           as
           the
           Nation
           it self
           )
           is
           that
           Covenant
           which
           was
           agreed
           upon
           by
           Prince
           and
           People
           at
           the
           first
           framing
           and
           institution
           of
           the
           Government
           .
        
         
           The
           Statute-Law
           hath
           its
           Force
           and
           Authority
           from
           the
           like
           consent
           ,
           and
           nothing
           is
           Law
           without
           that
           consent
           ,
           as
           appears
           by
           the
           Preamble
           of
           25
           H.
           8.
           c.
           21.
           concerning
           the
           very
           Point
           of
           Dispensations
           ;
           Sir
           
             John
             Fortescue
          
           says
           ,
           
             Rex
             leges
             sine
             subditorum
             assensu
             mutare
             non
             potest
             ;
             potestas
             regia
             lege
             cohibetur
             ,
          
           in
           his
           Book
           
             de
             Laudibus
             legum
             ,
             &c.
          
           
        
         
           Now
           for
           the
           Prince
           alone
           ,
           without
           the
           like
           consent
           ,
           to
           depart
           from
           that
           Agreement
           ,
           and
           at
           his
           will
           and
           pleasure
           to
           break
           any
           Article
           of
           it
           ,
           is
           in
           effect
           to
           put
           the
           sole
           Power
           of
           the
           Law
           into
           the
           hands
           of
           one
           person
           ,
           which
           receiv'd
           its
           force
           and
           vigour
           from
           the
           consent
           of
           all
           ,
           which
           is
           irrational
           .
        
         
           *
           Bracton
           ,
           who
           ,
           as
           Sir
           
             Edward
             Coke
          
           says
           ,
           in
           his
           Preface
           to
           the
           Ninth
           Report
           ,
           was
           a
           famous
           Judge
           of
           the
           
             Common
             Pleas
          
           ,
           in
           the
           time
           of
           King
           Henry
           the
           Third
           ,
           is
           of
           this
           Judgment
           ,
           Leges
           (
           says
           he
           )
           
             cum
             fuerint
             approbatae
             consensu
             utentium
             &
             Sacramento
             Regum
             confirmatae
             ,
             mutari
             non
             possunt
             nec
             destrui
             sine
             Communi
             consensu
             &
             Concilio
             eor
             '
             quor
             '
             concilio
             ,
             &
             consensu
             fuerint
             promulgatae
             .
          
        
         
           2.
           
           The
           Laws
           of
           England
           (
           both
           Common
           and
           Statute
           Law
           )
           have
           (
           as
           I
           have
           already
           shewn
           )
           a
           different
           Original
           from
           that
           of
           the
           Power
           of
           
           Dispensation
           (
           as
           it
           is
           exercis'd
           now
           among
           us
           )
           they
           have
           not
           the
           same
           Father
           .
           The
           King
           ,
           (
           who
           is
           
             Pater
             Patriae
          
           )
           with
           the
           consent
           of
           the
           People
           ,
           is
           the
           Father
           of
           our
           Laws
           ,
           he
           is
           
             Juris
             Pater
          
           :
           but
           he
           that
           is
           called
           the
           holy
           Father
           ,
           and
           from
           thence
           hath
           his
           name
           of
           Pope
           ,
           is
           the
           Father
           and
           first
           Inventer
           of
           Dispensations
           :
           so
           that
           there
           is
           no
           kindred
           nor
           affinity
           between
           the
           Law
           and
           Dispensation
           .
        
         
           3.
           
           The
           Laws
           amongst
           us
           and
           this
           faculty
           of
           Dispensations
           ,
           as
           they
           have
           a
           different
           Original
           ,
           so
           they
           have
           no
           resemblance
           one
           of
           another
           :
           
             facies
             non
             omnibus
             una
             est
          
           ,
           they
           have
           contrary
           qualities
           and
           dispositions
           .
           The
           Law
           is
           equal
           and
           impartial
           ,
           and
           hath
           no
           respect
           of
           persons
           ,
           and
           (
           as
           before
           I
           observ'd
           from
           Aristotle
           )
           is
           a
           Mind
           without
           Affection
           .
           Now
           the
           nature
           of
           a
           Dispensation
           is
           to
           favour
           some
           ,
           to
           set
           some
           at
           liberty
           from
           the
           obligation
           of
           the
           Law
           ,
           and
           is
           a
           kind
           of
           praeterition
           of
           others
           ,
           leaving
           them
           still
           under
           the
           tye
           and
           obligation
           ,
           and
           obnoxious
           to
           the
           
           Penalty
           if
           they
           transgress
           .
           Whereas
           ,
           in
           a
           well
           govern'd
           Kingdom
           there
           ought
           to
           be
           
             Unum
             pondus
          
           ,
           and
           
             Una
             Mensura
          
           in
           distributive
           ,
           as
           well
           as
           commutative
           Justice
           .
        
         
           It
           was
           part
           of
           the
           Oath
           that
           was
           taken
           by
           King
           William
           the
           First
           ,
           (
           who
           is
           commonly
           stiled
           the
           Conquerour
           )
           that
           he
           would
           ,
           
             Aequo
             jure
             Anglos
             &
             Francos
             tractare
             :
          
           Which
           Oath
           favours
           nothing
           of
           a
           Conquest
           ,
           nor
           does
           it
           run
           in
           the
           stile
           of
           a
           Conquerour
           .
        
         
           And
           it
           is
           the
           Oath
           of
           a
           Judge
           at
           this
           day
           ,
           That
           he
           shall
           truly
           serve
           the
           King
           and
           his
           People
           ,
           &c.
           
           That
           he
           shall
           do
           Right
           to
           every
           Person
           ,
           notwithstanding
           the
           King's
           Letters
           ,
           that
           is
           ,
           notwithstanding
           any
           
             (
             Non
             Obstante
             )
          
           .
        
         
           It
           is
           a
           Maxim
           in
           Law
           ,
           
             Quo
             modo
             aliquid
             Ligatur
             ,
             eo
             modo
             dissolvitur
             .
          
        
         
           Now
           a
           Law
           being
           made
           by
           Consent
           of
           all
           ,
           should
           not
           be
           Dissolv'd
           again
           ,
           but
           by
           the
           like
           Consent
           ;
           that
           is
           ,
           by
           Authority
           of
           the
           King
           and
           Parliament
           ,
           who
           have
           the
           Legislature
           .
           Dr.
           Willet
           in
           his
           
             Synopsis
             Papismi
          
           ,
           
           makes
           a
           Difference
           between
           a
           Toleration
           ,
           and
           a
           Dispensation
           :
           That
           of
           Moses
           ,
           in
           case
           of
           Divorces
           was
           a
           Tolleration
           .
           A
           Dispensation
           (
           says
           he
           )
           must
           be
           of
           as
           high
           a
           Nature
           as
           the
           Institution
           :
           None
           but
           the
           Law-Maker
           ,
           can
           Dispence
           with
           the
           Law
           ,
           not
           he
           that
           hath
           but
           a
           share
           in
           the
           Legislature
           .
        
         
           And
           from
           hence
           I
           shall
           take
           occasion
           to
           assert
           ,
           and
           shall
           endeavour
           to
           make
           good
           my
           Assertion
           by
           Law
           ,
           that
           the
           Lawful
           Power
           of
           Dispensing
           
           with
           an
           Act
           of
           Parliament
           ,
           that
           concerns
           the
           Publick
           ,
           is
           only
           in
           the
           hands
           of
           those
           that
           have
           the
           Legislative
           Power
           .
           I
           confine
           my self
           to
           such
           Acts
           only
           as
           concern
           the
           Publick
           (
           as
           the
           present
           Act
           we
           have
           now
           to
           do
           with
           ,
           does
           in
           a
           very
           high
           degree
           )
           .
           And
           therefore
           I
           hold
           that
           none
           can
           Dispence
           with
           such
           a
           Law
           ,
           but
           the
           King
           and
           Parliament
           ,
           and
           such
           as
           they
           entrust
           with
           it
           .
        
         
           I
           shall
           begin
           to
           prove
           this
           by
           an
           Act
           of
           Parliament
           ,
           which
           is
           the
           
           highest
           Resolve
           and
           Authority
           in
           our
           Law
           :
           It
           is
           in
           the
           Preamble
           of
           the
           Act
           of
           25
           Hen.
           8.
           c.
           21.
           (
           the
           Statute
           of
           Dispensations
           )
           and
           the
           Preamble
           of
           a
           Statute
           is
           Law
           ,
           as
           well
           as
           the
           enacting
           part
           ,
           or
           body
           of
           the
           Law.
           It
           is
           in
           effect
           a
           Declaration
           of
           what
           was
           Law
           before
           ,
           at
           least
           it
           shews
           the
           Opinion
           and
           Judgment
           of
           the
           Law-Makers
           ;
           which
           is
           of
           high
           Authority
           .
        
         
           It
           first
           utterly
           disowns
           and
           renounces
           the
           Pope's
           long
           usurped
           Claim
           and
           Pretence
           of
           Dispensing
           with
           any
           Person
           within
           this
           Realm
           ,
           even
           in
           
           Matters
           Spiritual
           ,
           tho'
           by
           him
           practis'd
           for
           many
           Years
           .
           I
           desire
           to
           observe
           upon
           this
           ,
           that
           long
           usage
           by
           an
           Usurpation
           ,
           gives
           no
           lawful
           Right
           :
           But
           I
           would
           further
           observe
           too
           ,
           that
           where
           it
           hath
           been
           long
           admitted
           and
           used
           ,
           it
           is
           in
           such
           Case
           reasonable
           for
           none
           but
           the
           Supream
           Court
           to
           undertake
           it
           ,
           and
           declare
           against
           it
           .
        
         
           In
           the
           next
           place
           ,
           this
           Act
           of
           Parliament
           does
           affirm
           ,
           That
           this
           Realm
           of
           England
           is
           subject
           to
           no
           Laws
           ,
           but
           such
           as
           have
           been
           made
           and
           taken
           by
           sufferance
           of
           the
           King
           and
           his
           Progenitors
           ,
           and
           the
           People
           of
           this
           Realm
           ,
           at
           their
           free
           Liberty
           ,
           by
           their
           own
           Consent
           to
           be
           used
           amongst
           them
           ,
           and
           have
           bound
           themselves
           by
           long
           Use
           and
           Custom
           ,
           to
           the
           observance
           of
           them
           ,
           as
           to
           the
           customed
           and
           ancient
           Laws
           of
           this
           Realm
           Originally
           establish'd
           ,
           as
           Laws
           of
           the
           same
           ,
           by
           the
           said
           Sufferance
           ,
           Consents
           ,
           and
           Customs
           ,
           
             And
             none
             otherwise
          
           .
           This
           shews
           the
           Original
           of
           our
           Common
           Law.
           This
           likewise
           clearly
           proves
           ,
           that
           whatever
           is
           imposed
           upon
           the
           People
           without
           their
           Consent
           ,
           hath
           not
           the
           Authority
           of
           a
           Law
           :
           And
           it
           cannot
           be
           shewn
           that
           ever
           the
           People
           did
           
           consent
           to
           this
           Power
           or
           Practice
           of
           Granting
           Dispensations
           .
           But
           it
           plainly
           appears
           that
           our
           Acts
           of
           Parliament
           are
           so
           far
           from
           approving
           or
           countenancing
           of
           it
           ,
           that
           they
           have
           often
           fenced
           against
           it
           ,
           altho'
           in
           vain
           hitherto
           .
           And
           tho'
           the
           Usage
           have
           been
           very
           Ancient
           (
           as
           I
           have
           shewn
           )
           yet
           that
           gives
           it
           no
           lawful
           Authority
           ;
           for
           this
           Preamble
           declares
           ,
           those
           only
           are
           Laws
           binding
           to
           the
           People
           ,
           that
           have
           been
           Originally
           establish'd
           as
           Laws
           .
           The
           Word
           (
           Originally
           )
           refers
           no
           doubt
           to
           our
           very
           Primitive
           Institution
           ,
           which
           is
           Common
           Law
           ,
           or
           at
           least
           to
           a
           time
           so
           ancient
           ,
           as
           that
           the
           Original
           cannot
           be
           traced
           out
           ,
           nor
           shewn
           ,
           and
           then
           it
           shall
           be
           presum'd
           to
           be
           the
           Common
           Law.
           Now
           I
           have
           (
           I
           hope
           )
           clearly
           evinced
           that
           the
           very
           first
           invention
           and
           practice
           of
           Dispensations
           by
           the
           Bishop
           of
           Rome
           ,
           is
           not
           time
           out
           of
           mind
           ,
           
           nor
           can
           the
           Usage
           of
           it
           here
           by
           imitation
           of
           the
           Pope
           ,
           reach
           up
           to
           a
           Prescription
           ,
           in
           the
           judgment
           of
           our
           Law
           ,
           nor
           by
           the
           Rules
           of
           it
           :
           For
           Sir
           
             Edward
             Cook
          
           in
           his
           first
           Instit.
           Fol.
           115.
           treating
           of
           a
           Prescription
           ,
           and
           the
           nature
           of
           it
           ,
           says
           ,
           That
           if
           there
           be
           any
           sufficient
           proof
           of
           Record
           or
           Writing
           to
           the
           contrary
           ,
           albeit
           it
           exceed
           the
           Memory
           of
           any
           Man
           living
           ,
           yet
           it
           is
           within
           the
           Memory
           of
           Man
           ,
           in
           a
           legal
           sence
           ,
           it
           had
           its
           Original
           since
           the
           beginning
           of
           the
           Reign
           of
           our
           King
           Richard
           the
           First
           ,
           (
           that
           is
           in
           the
           time
           of
           King
           John
           ,
           and
           King
           Henry
           the
           Third
           )
           .
           
        
         
           But
           that
           which
           makes
           it
           much
           the
           stronger
           is
           ,
           that
           this
           Declaration
           of
           the
           King
           and
           Parliament
           against
           such
           Dispensations
           and
           Laws
           introduc'd
           without
           the
           King
           and
           Peoples
           Consent
           ,
           does
           conclude
           with
           Negative
           Words
           ,
           viz.
           (
           and
           not
           otherwise
           )
           and
           is
           exclusive
           of
           all
           other
           ,
           that
           is
           ,
           that
           nothing
           is
           Law
           without
           their
           Consent
           .
        
         
           And
           this
           Statute
           of
           Dispensations
           proceeds
           further
           to
           shew
           ,
           where
           the
           true
           and
           lawful
           Power
           of
           Granting
           Dispensations
           is
           vested
           ,
           in
           these
           words
           ,
           viz.
           
        
         
           It
           stands
           with
           natural
           Equity
           ,
           and
           good
           Reason
           ,
           that
           in
           all
           Laws
           humane
           within
           this
           Realm
           ,
           the
           King
           and
           both
           Houses
           representing
           the
           
           whole
           State
           of
           the
           Realm
           ,
           have
           full
           
             Power
             to
             Dispense
          
           ,
           and
           to
           Authorize
           some
           Person
           to
           Dispense
           with
           those
           ,
           and
           all
           other
           humane
           Laws
           of
           this
           Realm
           ,
           and
           the
           same
           Laws
           to
           abrogate
           ,
           annull
           ,
           amplifie
           ,
           and
           diminish
           as
           it
           shall
           be
           seen
           unto
           the
           King
           ,
           the
           Nobles
           ,
           and
           the
           Commons
           of
           the
           Realm
           present
           in
           Parliament
           ,
           meet
           and
           convenient
           for
           the
           Wealth
           of
           the
           Realm
           ,
           and
           then
           it
           does
           dispose
           of
           the
           Power
           of
           Dispensation
           in
           Matters
           Ecclesiastical
           to
           the
           Archbishop
           of
           Canterbury
           ;
           some
           whereof
           are
           to
           be
           confirm'd
           by
           the
           King
           ,
           and
           others
           that
           may
           be
           good
           without
           the
           King
           's
           confirming
           .
        
         
           And
           altho'
           the
           body
           or
           enacting
           part
           of
           this
           Statute
           ,
           extend
           only
           to
           Causes
           Ecclesiastical
           ,
           yet
           the
           Preamble
           does
           reach
           expresly
           to
           all
           humane
           Laws
           .
        
         
           This
           Statute
           of
           25th
           of
           Henry
           the
           Eighth
           ,
           was
           made
           in
           the
           time
           of
           such
           a
           King
           ,
           as
           we
           all
           know
           ,
           by
           reading
           our
           Histories
           ,
           stood
           highly
           upon
           his
           Prerogative
           ,
           and
           would
           never
           have
           consented
           to
           such
           a
           Declaration
           ,
           concerning
           the
           Power
           of
           Dispensing
           ,
           if
           it
           had
           been
           a
           special
           Prerogative
           in
           the
           Crown
           ;
           and
           had
           there
           been
           such
           a
           Power
           in
           the
           Crown
           ,
           the
           King
           would
           never
           have
           suffered
           himself
           to
           have
           been
           depriv'd
           of
           it
           ,
           and
           to
           have
           it
           dispos'd
           of
           into
           other
           hands
           ,
           by
           the
           Parliament
           ,
           and
           there
           would
           have
           been
           no
           need
           of
           passing
           such
           a
           Law
           ,
           the
           King
           himself
           alone
           could
           easily
           have
           transacted
           all
           this
           Matter
           provided
           for
           by
           this
           Act
           of
           Parliament
           ,
           had
           he
           had
           the
           sole
           Power
           .
        
         
           It
           is
           true
           that
           the
           Lord
           Hobart
           ,
           in
           his
           Reports
           ,
           Fol.
           146.
           mentioning
           this
           Act
           of
           Dispensations
           ,
           and
           taking
           Notice
           that
           by
           the
           express
           
           words
           of
           the
           Act
           ,
           all
           Dispensations
           ,
           &c.
           shall
           be
           granted
           in
           Manner
           and
           Form
           as
           is
           prescribed
           by
           that
           Act
           ,
           and
           not
           otherwise
           ;
           yet
           he
           holds
           that
           the
           King
           is
           not
           thereby
           restrained
           ,
           but
           that
           his
           Power
           remains
           full
           and
           perfect
           as
           before
           ,
           and
           that
           he
           may
           still
           grant
           Dispensations
           as
           King
           :
           for
           (
           says
           he
           )
           all
           Acts
           of
           Justice
           and
           Grace
           flow
           from
           him
           .
        
         
           This
           and
           such
           like
           Statutes
           (
           says
           the
           Lord
           Hobart
           )
           were
           made
           to
           put
           things
           into
           ordinary
           form
           ,
           and
           to
           ease
           the
           King
           of
           Labour
           ,
           not
           to
           deprive
           him
           of
           Power
           .
        
         
           This
           Opinion
           of
           his
           is
           grounded
           upon
           a
           presumption
           ,
           that
           the
           Power
           of
           Dispensing
           with
           Laws
           ,
           was
           always
           from
           the
           beginning
           a
           Prerogative
           inherent
           in
           the
           Crown
           ,
           not
           examining
           who
           was
           the
           first
           Author
           ,
           and
           the
           time
           when
           it
           first
           began
           ,
           and
           whence
           we
           borrowed
           the
           use
           ,
           and
           how
           there
           was
           a
           time
           within
           evident
           proof
           of
           credible
           and
           authentick
           Writers
           ,
           when
           Dispensations
           were
           not
           in
           use
           ,
           and
           so
           they
           are
           within
           the
           time
           of
           Memory
           in
           a
           Legal
           Construction
           ,
           and
           cannot
           be
           by
           Prescription
           .
        
         
           And
           it
           is
           plain
           every
           Legal
           Prerogative
           must
           be
           so
           by
           Prescription
           ,
           that
           is
           ,
           used
           time
           out
           of
           Memory
           of
           Man
           ,
           and
           whereof
           there
           is
           no
           sufficient
           Writing
           to
           the
           contrary
           .
        
         
           But
           I
           may
           appeal
           to
           any
           unbiass'd
           and
           equal
           Judgment
           ,
           upon
           the
           reading
           of
           this
           Act
           (
           especially
           the
           Preamble
           of
           it
           )
           whether
           this
           Act
           meerly
           intended
           to
           put
           things
           into
           an
           ordinary
           Form
           ,
           and
           to
           case
           the
           King
           of
           Labour
           ,
           or
           whether
           it
           was
           not
           to
           put
           an
           absolute
           stop
           to
           the
           former
           Practice
           ,
           and
           does
           not
           directly
           declare
           and
           determine
           where
           the
           true
           Power
           of
           Dispensing
           ever
           was
           ,
           and
           therein
           uses
           those
           exclusive
           words
           (
           and
           not
           otherwise
           )
           for
           those
           words
           are
           in
           the
           Preamble
           ,
           as
           well
           as
           in
           the
           Body
           of
           the
           Act.
           
        
         
           So
           that
           this
           Construction
           of
           the
           Lord
           Hobart's
           ,
           That
           still
           the
           King
           may
           Dispense
           alone
           by
           himself
           ,
           and
           that
           he
           might
           have
           done
           so
           by
           his
           Prerogative
           ,
           before
           the
           making
           of
           this
           Statute
           ,
           and
           may
           do
           so
           still
           ,
           notwithstanding
           this
           〈◊〉
           is
           directly
           against
           the
           very
           words
           of
           the
           Statute
           ,
           that
           says
           it
           shall
           not
           be
           otherwise
           then
           as
           the
           Statute
           directs
           ,
           and
           being
           in
           the
           Negative
           are
           the
           stronger
           .
        
         
           And
           the
           three
           Instances
           ,
           or
           Cases
           cited
           by
           the
           Lord
           Hobart
           all
           out
           of
           Dyer
           ,
           do
           not
           come
           home
           to
           the
           Case
           of
           the
           King
           's
           Granting
           Dispensations
           in
           other
           manner
           than
           the
           Statute
           of
           25
           H.
           8.
           c.
           21.
           hath
           directed
           ,
           which
           expresly
           enacts
           that
           they
           shall
           not
           be
           granted
           otherwise
           .
        
         
           1.
           
           His
           first
           Instance
           is
           out
           of
           Dyer
           ,
           211
           ,
           the
           Statute
           of
           28
           H.
           8.
           c.
           15.
           
           Appoints
           ,
           that
           the
           Commissioners
           for
           Tryal
           of
           Piracy
           ,
           shall
           be
           named
           by
           the
           Lord
           Chancellor
           ;
           now
           it
           happened
           there
           was
           no
           Lord
           Chancellor
           ,
           but
           a
           Lord
           Keeper
           ,
           and
           it
           was
           held
           that
           he
           might
           name
           the
           Commissioners
           ,
           by
           the
           meaning
           of
           this
           Statute
           ,
           as
           well
           as
           the
           Lord
           Chancellor
           .
           This
           is
           ,
           under
           favour
           ,
           but
           a
           weak
           proof
           of
           the
           King's
           Power
           or
           Prerogative
           ,
           of
           varying
           from
           the
           Directions
           of
           an
           Act
           of
           Parliament
           ,
           or
           dispensing
           with
           the
           Rules
           prescrib'd
           by
           it
           ;
           for
           it
           is
           a
           meer
           imaginary
           variation
           ,
           the
           Lord
           Keeper
           ever
           having
           the
           same
           Power
           as
           the
           Lord
           Chancellor
           ;
           and
           it
           is
           not
           meerly
           so
           enacted
           ,
           but
           declar'd
           by
           the
           Act
           of
           5
           
             Eliz.
             c.
          
           18.
           which
           proves
           it
           was
           Law
           before
           .
           And
           yet
           some
           Judges
           held
           the
           Commissioners
           were
           not
           well
           named
           ,
           but
           that
           the
           Commission
           was
           void
           .
        
         
           2.
           
           The
           second
           Instance
           or
           Authority
           that
           the
           Lord
           Hobart
           uses
           to
           prove
           his
           Assertion
           ,
           that
           the
           words
           (
           and
           not
           otherwise
           )
           in
           the
           Statute
           of
           Dispensations
           ,
           doe
           not
           restrain
           the
           King's
           Power
           ,
           but
           that
           he
           may
           
           do
           otherwise
           ,
           is
           out
           of
           Dyer
           ,
           225.
           
           That
           Queen
           Elizabeth
           might
           make
           Sheriffs
           without
           the
           Judges
           ,
           notwithstanding
           the
           Stat.
           of
           9
           E.
           2.
           this
           I
           shall
           have
           occasion
           to
           examine
           and
           speak
           to
           more
           fully
           hereafter
           ,
           and
           therefore
           shall
           reserve
           it
           till
           then
           ,
           and
           doubt
           not
           to
           shew
           ,
           it
           is
           a
           mistake
           :
           and
           it
           was
           done
           by
           the
           Queen
           in
           a
           case
           of
           necessity
           ,
           it
           being
           in
           the
           time
           of
           the
           Plague
           ,
           when
           the
           great
           Officers
           could
           not
           safely
           meet
           in
           the
           Exchequer
           ,
           (
           as
           the
           Statutes
           require
           for
           the
           chusing
           of
           Sheriffs
           )
           and
           the
           Term
           was
           held
           at
           Hertford
           ;
           and
           the
           Report
           says
           ,
           no
           Sheriff
           was
           named
           by
           the
           Queen
           ,
           for
           the
           most
           part
           ,
           but
           out
           of
           those
           Names
           that
           remained
           in
           the
           Bill
           for
           the
           former
           Year
           .
           And
           the
           Book
           only
           says
           ,
           
             it
             was
             held
          
           ,
           the
           Queen
           might
           do
           it
           by
           her
           Prerogative
           .
        
         
           3.
           
           The
           last
           Instance
           that
           the
           Lord
           Hobart
           gives
           is
           out
           of
           Dyer
           ,
           303.
           b.
           that
           the
           King
           may
           grant
           the
           Aulnagers
           Office
           without
           a
           Bill
           sealed
           by
           the
           Treasurer
           ,
           tho'
           the
           Statute
           of
           31
           H.
           6.
           c.
           5.
           says
           the
           Grant
           of
           that
           Office
           shall
           be
           void
           ,
           without
           a
           Bill
           seal'd
           by
           the
           Treasurer
           .
        
         
           The
           Resolution
           of
           that
           Point
           is
           very
           obscurely
           reported
           ,
           but
           however
           take
           it
           at
           the
           strongest
           ,
           this
           is
           in
           a
           matter
           that
           concern'd
           the
           King's
           Revenue
           ,
           and
           where
           it
           may
           more
           reasonably
           be
           said
           by
           the
           King.
           
             May
             I
             not
             do
             what
             I
             will
             with
             my
             own
             ?
          
           And
           this
           Statute
           may
           easily
           be
           understood
           to
           be
           to
           put
           the
           granting
           of
           this
           Office
           into
           an
           ordinary
           form
           ,
           and
           to
           ease
           the
           King
           of
           Labour
           ,
           and
           not
           to
           restrain
           his
           Power
           .
           If
           that
           may
           be
           said
           in
           any
           Case
           against
           the
           express
           words
           of
           a
           Statute
           ,
           it
           may
           be
           in
           a
           Case
           that
           concerns
           meerly
           his
           Revenue
           ,
           as
           this
           of
           the
           Aulneage
           was
           .
        
         
           In
           the
           next
           place
           I
           shall
           shew
           ,
           that
           the
           stream
           of
           Dispensations
           did
           anciently
           run
           in
           this
           channel
           ,
           till
           afterwards
           it
           found
           out
           another
           course
           ,
           and
           that
           Dispensations
           with
           Laws
           ,
           were
           only
           in
           the
           same
           hands
           as
           had
           the
           Legislature
           ,
           that
           is
           ,
           in
           the
           King
           and
           Parliament
           ,
           in
           former
           times
           ,
           and
           this
           answers
           that
           Example
           that
           hath
           been
           used
           ,
           that
           Almighty
           God
           dispens'd
           with
           his
           own
           Law
           of
           the
           sixth
           Commandment
           ,
           when
           he
           commanded
           Abraham
           to
           sacrifice
           Isaac
           :
           God
           was
           the
           great
           and
           only
           Legislator
           .
           Now
           the
           King
           is
           not
           the
           sole
           Legislator
           .
        
         
           I
           shall
           present
           you
           with
           a
           very
           full
           Precedent
           and
           Proof
           of
           the
           Power
           of
           Dispensing
           with
           Acts
           of
           Parliament
           to
           be
           no
           where
           else
           but
           where
           the
           very
           Legislative
           Power
           is
           .
           And
           that
           the
           Kings
           have
           sometimes
           accepted
           it
           from
           them
           in
           some
           particular
           cases
           ,
           and
           for
           some
           limitted
           time
           ,
           and
           with
           divers
           restrictions
           ,
           which
           is
           a
           full
           acknowment
           that
           it
           belongs
           only
           to
           the
           Legislative
           Power
           to
           dispence
           with
           Laws
           .
        
         
           The
           Commons
           ,
           for
           the
           great
           Affiance
           which
           they
           repose
           in
           the
           King
           ,
           
           granted
           ,
           that
           he
           ,
           by
           advice
           of
           his
           Lords
           ,
           might
           make
           such
           Toleration
           touching
           the
           Statute
           of
           Provisions
           ,
           as
           to
           him
           shall
           seem
           good
           ,
           
             until
             the
             next
             Parliament
          
           ,
           so
           as
           the
           Statute
           be
           repealed
           in
           no
           part
           thereof
           .
           So
           also
           as
           the
           Commons
           may
           disagree
           thereunto
           at
           the
           next
           Parliament
           ,
           with
           this
           Protestation
           too
           ,
           that
           this
           their
           Assent
           being
           indeed
           
             a
             Novelty
          
           ,
           (
           these
           are
           the
           very
           words
           )
           be
           taken
           for
           no
           example
           .
           This
           is
           granted
           with
           abundance
           of
           caution
           and
           jealousie
           ,
           and
           proves
           it
           is
           not
           ancient
           .
        
         
           The
           Commons
           do
           agree
           to
           the
           Power
           granted
           to
           the
           King
           ,
           for
           the
           
           Moderation
           of
           the
           Statutes
           touching
           Provisors
           in
           the
           last
           Parliament
           ,
           beseeching
           the
           King
           ,
           that
           the
           same
           may
           not
           license
           any
           Cardinal
           or
           Stranger
           to
           enjoy
           any
           Benefice
           within
           the
           Realm
           .
        
         
         
           It
           was
           enacted
           by
           the
           Lords
           and
           Commons
           ,
           that
           Tydeman
           ,
           late
           Abbot
           
           of
           Beaulew
           ,
           and
           Elect
           of
           Landaf
           ,
           by
           the
           Pope's
           provision
           ,
           should
           enjoy
           the
           same
           Bishoprick
           ,
           notwithstanding
           any
           Act
           ,
           so
           always
           as
           this
           be
           taken
           for
           no
           example
           .
        
         
           That
           the
           sale
           of
           Tin
           may
           be
           at
           Lostwithiel
           in
           Cornwal
           ,
           and
           shall
           
           not
           continue
           at
           Calais
           .
           Notwithstanding
           the
           Council
           may
           grant
           License
           to
           Merchants
           ,
           to
           carry
           the
           same
           Tin
           to
           what
           parts
           they
           will
           ,
           as
           to
           them
           shall
           seem
           good
           .
           Here
           the
           Power
           of
           Dispensing
           is
           delegated
           to
           the
           Council
           .
        
         
           Upon
           the
           request
           of
           the
           Commons
           ,
           the
           King
           promiseth
           ,
           that
           he
           will
           not
           from
           thenceforth
           dispence
           with
           the
           Statute
           of
           Provisions
           to
           Benefices
           .
           
        
         
           This
           implies
           ,
           that
           the
           King
           had
           practis'd
           it
           ,
           and
           we
           know
           who
           began
           the
           practice
           ,
           and
           who
           taught
           it
           to
           others
           ,
           and
           this
           Record
           shews
           it
           was
           without
           consent
           ,
           and
           was
           a
           cause
           of
           complaint
           ,
           and
           the
           King
           promises
           to
           reform
           it
           for
           the
           future
           .
           But
           what
           signifies
           a
           Promise
           ,
           where
           a
           Law
           and
           an
           Oath
           is
           too
           weak
           to
           secure
           it
           ?
           this
           Promise
           doth
           not
           confer
           a
           new
           Right
           ,
           but
           is
           to
           reform
           an
           unjust
           Practice
           .
        
         
           I
           shall
           use
           one
           Argument
           more
           against
           this
           exercise
           of
           the
           Power
           of
           Dispensing
           with
           Acts
           of
           Parliament
           ,
           as
           it
           hath
           of
           late
           been
           practis'd
           ,
           and
           that
           Argument
           shall
           be
           rais'd
           from
           the
           great
           Inconvenience
           and
           Mischief
           that
           will
           ensue
           upon
           it
           to
           the
           Kingdom
           ;
           it
           may
           occasion
           the
           infrequency
           of
           Parliaments
           ,
           by
           taking
           much
           of
           their
           power
           out
           of
           their
           hands
           .
        
         
           Laws
           are
           many
           times
           made
           but
           probationers
           and
           temporary
           ,
           to
           the
           end
           ,
           that
           if
           upon
           experience
           of
           them
           they
           be
           found
           to
           be
           too
           severe
           or
           strict
           and
           to
           sit
           hard
           upon
           any
           persons
           ,
           that
           the
           Parliament
           at
           their
           next
           meeting
           may
           moderate
           or
           relax
           the
           severity
           or
           inconvenience
           that
           may
           arise
           by
           them
           .
           But
           if
           there
           be
           another
           way
           allowed
           for
           the
           doing
           of
           this
           Work
           ,
           there
           will
           be
           the
           less
           need
           of
           a
           Parliament
           ,
           and
           so
           other
           Work
           ,
           that
           requires
           also
           their
           meeting
           ,
           may
           remain
           unremedied
           .
        
         
           If
           we
           consider
           how
           frequently
           the
           Parliament
           ought
           to
           meet
           ,
           and
           and
           how
           often
           they
           did
           anciently
           meet
           ,
           we
           shall
           easily
           be
           convinc'd
           ,
           that
           the
           relaxing
           of
           a
           Law
           ,
           or
           giving
           remedy
           ,
           (
           where
           the
           Law
           was
           upon
           experience
           found
           inconvenient
           )
           was
           a
           work
           properly
           belonging
           unto
           them
           ,
           and
           there
           was
           no
           need
           of
           resorting
           to
           any
           other
           help
           :
           for
           who
           should
           cure
           or
           reform
           a
           Law
           ,
           if
           any
           thing
           were
           amiss
           in
           it
           ,
           but
           the
           Law-makers
           ?
           See
           the
           Statute
           of
           6
           H.
           8.
           c.
           18.
           the
           Book
           of
           Statutes
           at
           large
           concerning
           Bristol
           .
        
         
           Our
           Saxon
           King
           Alfred
           and
           his
           Wise
           Men
           (
           that
           is
           ,
           the
           great
           Council
           of
           the
           Kingdom
           )
           ordained
           ,
           that
           a
           Parliament
           twice
           a
           Year
           ,
           and
           oftner
           in
           time
           of
           Peace
           ,
           should
           meet
           in
           London
           .
           Thus
           says
           that
           ancient
           Book
           ,
           stiled
           ,
           
             The
             Mirrour
             of
             Justices
             ,
             c.
          
           1.
           sect
           .
           3.
           pag.
           10.
           by
           4
           E.
           3.
           c.
           14.
           
           It
           is
           accorded
           that
           a
           Parliament
           shall
           be
           holden
           every
           Year
           once
           or
           more
           often
           if
           need
           be
           ;
           this
           does
           not
           abrogate
           not
           alter
           King
           Alfred's
           Law.
           
        
         
           By
           36
           E.
           3.
           c.
           10.
           many
           Laws
           had
           passed
           in
           that
           Parliament
           of
           36
           E.
           3.
           which
           are
           there
           called
           Articles
           ,
           (
           as
           anciently
           our
           Statutes
           were
           drawn
           into
           certain
           Articles
           ,
           and
           so
           passed
           ,
           as
           being
           Articles
           of
           Agreement
           betwixt
           the
           King
           and
           his
           Subjects
           (
           as
           I
           had
           occasion
           to
           observe
           in
           the
           beginning
           of
           my
           Discourse
           )
           and
           this
           Statute
           of
           36
           E.
           3.
           provides
           ,
           that
           for
           maintenance
           of
           the
           said
           Articles
           and
           Statutes
           and
           redress
           
           of
           divers
           Mischiefs
           and
           Grievances
           ,
           which
           daily
           happen
           ,
           a
           Parliament
           shall
           be
           holden
           every
           Year
           ,
           as
           another
           time
           was
           ordained
           by
           a
           Statute
           )
           referring
           to
           the
           Statute
           of
           the
           Fourth
           of
           this
           King.
           
        
         
           The
           Act
           of
           16
           Car.
           2.
           c.
           1.
           for
           repeal
           of
           the
           Triennial
           Act
           made
           16
           Car.
           1.
           in
           the
           last
           Paragraph
           recites
           ,
           that
           by
           the
           ancient
           Laws
           and
           Statutes
           of
           this
           Realm
           ,
           made
           in
           the
           Reign
           of
           King
           Edward
           the
           Third
           ,
           Parliaments
           are
           to
           be
           held
           very
           often
           ;
           and
           this
           Act
           of
           16
           Car.
           2.
           makes
           a
           new
           provision
           ,
           to
           the
           end
           (
           as
           the
           words
           are
           )
           there
           may
           be
           a
           frequent
           calling
           ,
           assembling
           and
           holding
           of
           Parliaments
           once
           in
           three
           Years
           at
           the
           least
           .
        
         
           Now
           let
           us
           enquire
           what
           the
           proper
           Work
           of
           a
           Parliament
           is
           ,
           which
           the
           said
           Statute
           of
           36
           E.
           3.
           mentions
           in
           part
           ,
           viz.
           for
           maintenance
           of
           the
           Articles
           and
           Statutes
           and
           redress
           of
           Mischiefs
           and
           Grievances
           that
           daily
           happen
           (
           as
           that
           Statute
           recites
           )
           .
        
         
           Sir
           
             Tho.
             Smith
          
           ,
           (
           who
           was
           principal
           Secretary
           of
           State
           )
           in
           his
           Treatise
           
             de
             Republica
             &
             Administratione
             Anglorum
             ,
             L.
          
           2.
           c.
           2.
           fol.
           50
           ,
           51.
           says
           this
           of
           the
           Parliament
           .
        
         
           
             In
             Comitiis
             Parliamentariis
             posita
             est
             omnis
             augustae
             Absolutaeque
             potestat
             is
             vis
             veteres
             leges
             jubent
             esse
             irritas
             ,
             novas
             inducunt
             ,
          
           praesentibus
           modum
           constituunt
           .
           (
           There
           is
           the
           true
           dispensing
           power
           )
           
             Incerti
             juris
             controversias
             Dirimunt
          
           .
        
         
           Bracton
           writes
           of
           this
           High
           Court
           ,
           
             Habet
             Rex
             Curiam
             suam
             in
             concilio
             suo
             in
             Parliamentis
             suis
             ubi
             terminatoe
             sunt
             dubitationes
             Judiciorum
             &
             novis
             injuriis
             emersis
             ,
             nova
             constituuntur
             remedia
             .
          
        
         
           The
           
             Mirrour
             of
             Justices
          
           ,
           c.
           1.
           pag.
           9.
           says
           ,
           that
           Parliaments
           were
           instituted
           to
           hear
           and
           determine
           the
           Complaints
           of
           the
           wrongful
           Acts
           of
           those
           against
           whom
           the
           Subject
           otherwise
           could
           not
           have
           common
           Justice
           ,
           that
           is
           ,
           against
           great
           and
           powerful
           Delinquents
           .
        
         
           
             Nihil
             prodest
          
           (
           says
           
             Bracton
             )
             Jura
             concedere
             nisi
             sit
             qui
             Jura
             tueatur
             .
          
        
         
           So
           that
           there
           is
           need
           of
           a
           frequent
           resort
           to
           be
           had
           to
           the
           Law-mamakers
           ,
           not
           only
           to
           resolve
           difficulties
           of
           Judgments
           ,
           but
           to
           keep
           the
           power
           of
           Interpretation
           within
           its
           due
           bounds
           ,
           and
           the
           Law
           hath
           taken
           care
           for
           frequency
           of
           Parliaments
           .
        
         
           Sir
           
             Francis
             Bacon
          
           ,
           in
           his
           Advancement
           of
           Learning
           ,
           gives
           this
           excellent
           Advice
           to
           Law-makers
           ,
           and
           to
           those
           to
           whom
           it
           belongs
           to
           defend
           the
           Laws
           .
        
         
           Let
           not
           (
           says
           he
           )
           Praetorian
           Courts
           (
           speaking
           of
           Courts
           of
           Equity
           )
           have
           power
           to
           decree
           
             against
             express
             Statutes
          
           ,
           under
           pretence
           of
           Equity
           ;
           for
           (
           says
           he
           )
           if
           this
           should
           be
           permitted
           ,
           a
           Law
           interpreter
           (
           that
           is
           a
           Judge
           )
           would
           become
           a
           Law-maker
           ,
           and
           all
           Matters
           should
           depend
           upon
           Arbitrament
           ,
           (
           that
           is
           )
           upon
           an
           Arbitrary
           Power
           .
           And
           Arbitrament
           would
           encroach
           upon
           ,
           and
           at
           last
           swallow
           up
           Law.
           
        
         
           The
           power
           of
           extending
           or
           supplying
           or
           moderating
           Laws
           ,
           little
           differs
           (
           says
           he
           )
           from
           the
           power
           of
           making
           them
           .
        
         
           Courts
           of
           Equity
           sometimes
           ,
           under
           the
           pretence
           of
           mitigating
           the
           Rigor
           of
           the
           Laws
           ,
           (
           and
           such
           is
           the
           Power
           of
           Dispensing
           )
           relax
           the
           Strength
           and
           Sinews
           of
           Laws
           ,
           by
           drawing
           all
           to
           Arbitraments
           :
           he
           was
           well
           able
           to
           judge
           of
           this
           ,
           having
           been
           Lord
           Chancelor
           .
           And
           it
           is
           his
           46th
           Aphorism
           .
           That
           is
           the
           best
           Law
           which
           gives
           the
           least
           liberty
           to
           the
           Judge
           ;
           he
           is
           the
           best
           Judge
           ,
           that
           takes
           least
           liberty
           to
           himself
           .
        
         
         
           Therefore
           where
           any
           new
           Law
           sits
           uneasie
           and
           too
           hard
           and
           heavy
           in
           some
           particular
           cases
           ,
           it
           were
           much
           safer
           to
           suffer
           the
           mischief
           for
           a
           time
           ,
           (
           if
           any
           such
           happen
           )
           and
           let
           it
           wait
           till
           those
           that
           gave
           the
           wound
           come
           to
           cure
           it
           .
           
             Una
             eademque
             manus
             vulnus
             opemque
             feret
             .
          
           The
           overhasty
           cure
           ,
           arising
           from
           the
           impatience
           of
           enduring
           pain
           ,
           makes
           the
           case
           the
           worse
           :
           frequency
           of
           Parliaments
           is
           a
           proper
           cure
           .
           Other
           ways
           of
           cure
           are
           apt
           to
           cause
           infrequency
           of
           Parliaments
           .
        
         
           And
           in
           Matters
           of
           great
           difficulty
           which
           come
           before
           the
           Judges
           in
           the
           Courts
           of
           Westminster
           ,
           or
           if
           there
           be
           no
           great
           difficulty
           ,
           yet
           if
           it
           be
           of
           mighty
           concernment
           and
           not
           clearly
           concurring
           with
           the
           *
           intent
           and
           words
           of
           Law-makers
           ,
           but
           the
           Law
           in
           the
           scope
           of
           it
           ,
           is
           like
           to
           be
           frustrated
           by
           an
           hasty
           determination
           ,
           it
           is
           ,
           under
           favour
           ,
           the
           Duty
           of
           the
           Judges
           in
           such
           Cases
           of
           †
           
             Dubitaciones
             Judicior
             '
          
           to
           rest
           till
           the
           Parliament
           meet
           ,
           and
           then
           to
           propose
           it
           to
           the
           Parliament
           for
           their
           resolution
           .
           Thus
           it
           is
           expresly
           provided
           in
           the
           Statute
           of
           Treasons
           ,
           25
           E.
           3.
           to
           defer
           doubtful
           Cases
           till
           the
           Parliament
           resolve
           them
           ,
           being
           in
           a
           matter
           of
           so
           high
           concernment
           as
           that
           of
           Treason
           .
        
         
           And
           in
           Cases
           of
           much
           lesser
           consequences
           ,
           especially
           upon
           a
           new
           Law
           ,
           (
           as
           that
           is
           that
           we
           have
           before
           us
           )
           in
           several
           Cases
           cited
           in
           Blackamore's
           Case
           ,
           the
           Judges
           have
           sought
           to
           the
           Parliament
           for
           a
           Resolution
           in
           smaller
           matters
           .
        
         
           8
           Rep.
           158.
           
           In
           doubts
           arising
           before
           the
           Judges
           in
           their
           Courts
           ,
           upon
           the
           Construction
           of
           Acts
           of
           Parliament
           ,
           the
           Judges
           resorted
           to
           the
           Council
           ,
           (
           which
           is
           there
           said
           to
           be
           meant
           of
           the
           great
           Council
           ,
           (
           the
           Parliament
           )
           that
           made
           the
           Act
           in
           the
           Case
           there
           cited
           .
        
         
           The
           Question
           *
           did
           arise
           upon
           the
           Statute
           of
           14
           E.
           3.
           c.
           6.
           which
           gives
           power
           to
           Courts
           to
           amend
           Misprisions
           of
           Clerks
           in
           Process
           ,
           in
           writing
           a
           Letter
           or
           Syllable
           too
           much
           or
           too
           little
           :
           But
           whether
           these
           words
           in
           the
           Act
           ,
           gave
           power
           to
           amend
           where
           there
           was
           a
           whole
           Word
           too
           much
           or
           too
           little
           ,
           was
           the
           Question
           ,
           and
           the
           Lords
           declared
           ,
           39
           E.
           3.
           21.
           that
           their
           meaning
           was
           ,
           that
           in
           such
           Cases
           the
           Process
           should
           be
           amended
           :
           this
           shews
           the
           tenderness
           of
           the
           Judges
           in
           those
           times
           ,
           in
           construction
           of
           new
           Acts
           of
           Parliament
           ,
           and
           the
           frequency
           of
           Parliaments
           and
           the
           resort
           still
           had
           to
           them
           in
           case
           of
           Doubts
           .
           And
           this
           was
           in
           the
           time
           of
           E.
           3.
           the
           most
           flourishing
           time
           of
           the
           Law
           ;
           and
           a
           Case
           that
           the
           then
           Archbishop
           said
           had
           
             no
             great
             difficulty
             in
             it
          
           .
        
         
           But
           I
           presume
           it
           will
           be
           said
           against
           me
           ,
           that
           this
           is
           a
           clear
           Case
           
           in
           Law
           which
           is
           now
           before
           us
           ,
           and
           that
           there
           was
           no
           doubt
           nor
           difficulty
           in
           it
           ,
           but
           that
           the
           King
           by
           his
           Prerogative
           could
           dispence
           with
           this
           Act
           of
           25
           Car.
           2.
           and
           that
           all
           the
           twelve
           Judges
           (
           but
           one
           or
           two
           )
           was
           of
           that
           opinion
           ,
           and
           that
           the
           Point
           hath
           formerly
           been
           resolv'd
           in
           the
           Case
           of
           Continuing
           a
           Sheriff
           in
           his
           Office
           longer
           than
           one
           Year
           ,
           notwithstanding
           the
           several
           Acts
           of
           Parliament
           to
           the
           contrary
           ,
           and
           that
           was
           so
           resolv'd
           by
           all
           the
           Justices
           in
           the
           Exchequer
           Chamber
           ,
           2
           H.
           7.
           and
           by
           the
           opinion
           of
           Sir
           
             Edward
             Coke
          
           ,
           12
           Rep.
           18.
           and
           repeated
           in
           Calvin's
           Case
           ,
           7
           Rep.
           14.
           which
           are
           the
           only
           Authorities
           that
           come
           home
           to
           the
           Case
           ,
           and
           none
           of
           them
           ancient
           .
        
         
           Before
           I
           speak
           to
           these
           Authorities
           in
           the
           Case
           of
           Dispensing
           with
           a
           Sheriff
           to
           continue
           longer
           than
           a
           Year
           ,
           I
           shall
           make
           it
           appear
           ,
           that
           the
           Case
           now
           in
           question
           ,
           or
           the
           Point
           in
           Law
           of
           this
           Case
           ,
           was
           very
           much
           doubted
           ,
           if
           not
           clearly
           held
           on
           the
           contrary
           ,
           that
           the
           King
           could
           not
           dispence
           with
           this
           Act
           of
           25
           Car.
           2.
           and
           that
           by
           no
           mean
           Judgments
           .
        
         
         
           If
           the
           King
           could
           have
           dispens'd
           with
           it
           by
           his
           Prerogative
           ,
           and
           it
           had
           been
           so
           clear
           ,
           what
           need
           was
           there
           of
           his
           Majesty's
           proposing
           it
           to
           the
           two
           Houses
           ,
           at
           the
           opening
           of
           a
           Session
           ,
           to
           allow
           him
           a
           Power
           of
           Dispensing
           with
           this
           Law
           ?
           or
           that
           they
           themselves
           would
           dispence
           with
           it
           ?
           why
           would
           the
           two
           Houses
           ,
           after
           long
           debate
           about
           it
           ,
           excuse
           themselves
           from
           consenting
           to
           that
           which
           the
           King
           could
           do
           without
           them
           ?
           were
           there
           no
           Judges
           that
           did
           scruple
           the
           doing
           of
           it
           ?
        
         
           If
           it
           were
           a
           Prerogative
           in
           the
           King
           ,
           how
           came
           it
           to
           be
           so
           long
           before
           the
           King
           's
           learned
           Council
           could
           start
           it
           ?
           we
           heard
           nothing
           of
           this
           till
           all
           other
           ways
           were
           tryed
           .
        
         
           Let
           me
           add
           to
           this
           what
           was
           spoken
           by
           the
           late
           King
           's
           own
           command
           and
           direction
           in
           the
           House
           of
           Lords
           ,
           before
           the
           King
           and
           both
           Houses
           ,
           and
           all
           the
           Judges
           present
           ,
           by
           a
           late
           Lord
           Chancelor
           ,
           who
           as
           he
           was
           an
           excellent
           Orator
           ,
           so
           he
           was
           a
           very
           learned
           Lawyer
           ,
           and
           my
           honourable
           Friend
           .
        
         
           It
           was
           in
           his
           Speech
           made
           to
           both
           Houses
           the
           Twenty
           third
           of
           May
           ,
           1678.
           (
           about
           five
           Years
           after
           the
           making
           of
           this
           Act
           of
           25
           Car.
           2.
           )
           and
           it
           was
           spoken
           in
           reference
           to
           this
           very
           Act
           of
           Parliament
           .
        
         
           
             Hath
             not
             the
             late
             Act
          
           (
           says
           he
           )
           
             made
             it
             impossible
             ,
             absolutely
             impossible
             for
             the
             most
             concealed
             Papist
             that
             is
             ,
             to
             get
             into
             any
             kind
             of
             Employment
             ?
             And
             did
             ever
             any
             Law
             since
             the
             Reformation
             give
             us
             so
             great
             a
             security
             as
             this
             ?
          
        
         
           Hereupon
           ,
           in
           the
           same
           Speech
           ,
           that
           noble
           Lord
           does
           declare
           it
           now
           a
           stale
           Project
           to
           undermine
           the
           Government
           ,
           by
           accusing
           it
           of
           endeavouring
           to
           introduce
           Popery
           ,
           that
           a
           man
           would
           wonder
           to
           see
           it
           taken
           up
           again
           .
        
         
           This
           Law
           had
           so
           abundantly
           secured
           us
           against
           the
           Danger
           of
           it
           .
        
         
           And
           yet
           ,
           after
           all
           this
           ,
           do
           we
           hear
           the
           Judges
           openly
           and
           judicially
           declaring
           ,
           that
           it
           appear'd
           to
           them
           to
           be
           a
           very
           plain
           case
           ,
           that
           the
           King
           alone
           could
           dispence
           with
           this
           Act
           of
           Parliament
           by
           his
           Prerogative
           :
           and
           tho'
           it
           was
           acknowledged
           to
           be
           a
           Case
           of
           great
           consequence
           ,
           (
           as
           the
           truth
           is
           )
           yet
           it
           was
           pronounc'd
           withal
           to
           be
           of
           as
           little
           difficulty
           as
           ever
           any
           Case
           was
           ,
           that
           raised
           so
           great
           an
           expectation
           .
        
         
           These
           are
           strong
           Arguments
           to
           prove
           the
           Doubtfulness
           of
           it
           :
           after
           all
           these
           Refusals
           or
           Hesitations
           ,
           it
           might
           very
           well
           be
           accounted
           a
           Doubt
           or
           Difficulty
           ,
           worthy
           to
           be
           referr'd
           to
           the
           judgment
           of
           the
           Parliament
           ,
           if
           the
           Parliament
           had
           not
           already
           in
           effect
           given
           their
           judgment
           to
           the
           contrary
           .
        
         
           As
           I
           remember
           ,
           it
           was
           in
           February
           1663.
           that
           the
           two
           Houses
           made
           an
           Address
           to
           the
           last
           King
           ,
           for
           revoking
           a
           Declaration
           ,
           whereby
           his
           late
           Majesty
           had
           granted
           a
           Toleration
           and
           Indulgence
           to
           some
           Protestant
           Dissenters
           ,
           as
           
             being
             against
             Law
          
           ,
           and
           such
           a
           Toleration
           was
           declared
           illegal
           by
           the
           Parliament
           in
           1672.
           
           These
           are
           two
           Resolutions
           in
           the
           point
           by
           the
           Supream
           Judicature
           .
        
         
           If
           this
           Prerogative
           of
           Dispensing
           with
           Acts
           of
           Parliament
           were
           in
           the
           Crown
           by
           Prescription
           ,
           (
           as
           it
           ought
           to
           be
           if
           it
           were
           a
           legal
           *
           Prerogative
           )
           it
           ought
           then
           to
           be
           confin'd
           and
           limitted
           to
           such
           cases
           only
           wherein
           it
           had
           been
           anciently
           and
           frequently
           excercised
           :
           and
           there
           ought
           to
           be
           no
           extension
           of
           Cases
           where
           they
           are
           depending
           upon
           a
           Prescription
           ,
           nor
           is
           there
           any
           arguing
           a
           
             Paritate
             rationis
          
           in
           such
           Cases
           and
           which
           have
           their
           force
           meerly
           from
           ancient
           and
           constant
           Usage
           .
        
         
         
           It
           is
           a
           Rule
           at
           Common
           Law
           ,
           
             Ubi
             eadem
             est
             ratio
             ibi
             idem
             Jus
             :
          
           But
           this
           Rule
           doth
           not
           hold
           in
           Customs
           and
           Prescriptions
           .
        
         
           In
           the
           Case
           of
           Bayly
           and
           Stevens
           in
           
             Croke
             ,
             Jac.
          
           1.
           fol.
           198
           ,
           it
           was
           held
           
             per
             Curiam
          
           ,
           that
           where
           Lands
           in
           Borough
           English
           descend
           to
           the
           youngest
           Son
           ,
           and
           he
           dies
           without
           Issue
           ,
           that
           the
           Land
           in
           such
           Case
           shall
           not
           go
           to
           the
           younger
           Brother
           without
           a
           particular
           Custom
           ;
           but
           the
           elder
           Brother
           shall
           have
           it
           ,
           for
           the
           usage
           had
           been
           in
           the
           one
           ,
           but
           not
           in
           the
           other
           Case
           ;
           yet
           these
           two
           Cases
           are
           very
           near
           of
           kin
           .
        
         
           Now
           this
           Prerogative
           of
           dispensing
           with
           Acts
           of
           Parliament
           ,
           in
           the
           original
           use
           and
           exercise
           of
           it
           ,
           was
           but
           in
           very
           few
           Cases
           ,
           and
           those
           which
           more
           directly
           concern'd
           the
           King
           himself
           immediately
           ,
           in
           his
           Revenue
           ,
           or
           the
           like
           ,
           which
           were
           Cases
           of
           no
           great
           Consequence
           ,
           and
           such
           wherein
           the
           Law-Makers
           ,
           in
           making
           their
           Laws
           ,
           might
           be
           easily
           understood
           not
           to
           intend
           to
           abridge
           the
           King
           of
           his
           Power
           ,
           but
           to
           ease
           him
           rather
           of
           Labour
           ,
           and
           to
           put
           things
           into
           an
           ordinary
           course
           ,
           which
           yet
           the
           King
           might
           depart
           from
           ,
           if
           he
           were
           so
           minded
           ,
           and
           if
           he
           did
           accordingly
           signifie
           his
           Pleasure
           ,
           by
           granting
           an
           express
           
             (
             Non
             Obstante
          
           )
           the
           Act
           of
           Parliament
           to
           the
           contrary
           )
           and
           making
           particular
           mention
           of
           the
           Act
           :
           
             Unusquisque
             renunciare
             potest
             Juri
             pro
             se
             introducto
             .
          
        
         
           Or
           in
           Cases
           where
           there
           is
           no
           disability
           impos'd
           upon
           a
           Person
           by
           the
           Act
           ,
           but
           only
           a
           pecuniary
           Penalty
           given
           to
           the
           King
           ,
           and
           forfeited
           by
           the
           Subject
           ,
           transgressing
           the
           Act
           ,
           where
           the
           King
           is
           
             Creditor
             poenoe
          
           ;
           it
           seems
           more
           reasonable
           that
           the
           King
           may
           dispense
           with
           the
           Penalty
           that
           will
           be
           due
           to
           himself
           .
           And
           these
           ,
           and
           such
           like
           ,
           are
           the
           only
           Instances
           given
           in
           that
           great
           Case
           of
           2
           H.
           7.
           
        
         
           But
           to
           dispense
           with
           an
           Act
           of
           Parliament
           ,
           made
           in
           a
           Case
           of
           the
           highest
           *
           concernment
           to
           the
           Publick
           that
           can
           be
           ,
           wherein
           Religion
           ,
           and
           the
           Government
           are
           so
           deeply
           concern'd
           ,
           and
           where
           the
           King
           himself
           ,
           and
           the
           Parliament
           ,
           have
           thought
           fit
           to
           disable
           any
           Person
           to
           do
           to
           the
           contrary
           ,
           and
           so
           pronounc'd
           it
           ,
           and
           have
           put
           an
           incapacity
           upon
           Persons
           ,
           and
           adjudged
           the
           thing
           done
           to
           the
           contrary
           void
           ;
           this
           hath
           been
           of
           latter
           times
           ,
           and
           but
           of
           late
           found
           out
           and
           practis'd
           ,
           and
           is
           not
           warranted
           by
           any
           Prescription
           .
        
         
           I
           shall
           cite
           some
           Resolutions
           to
           this
           purpose
           ,
           that
           the
           King
           cannot
           dispense
           with
           Disabilities
           and
           Incapacities
           imposed
           upon
           any
           Person
           by
           Act
           of
           Parliament
           .
        
         
           The
           Lord
           Hobart's
           Reports
           ,
           fol.
           75.
           in
           the
           Case
           of
           the
           King
           against
           the
           Bishop
           of
           Norwich
           ,
           Res.
           That
           if
           an
           Incumbent
           were
           guilty
           of
           Symony
           
           in
           obtaining
           a
           Benefice
           ,
           he
           was
           made
           incapable
           of
           that
           Benefice
           for
           ever
           ,
           by
           the
           words
           of
           the
           Statute
           of
           31
           
             Eliz.
             c.
          
           6.
           
           Paragr
           .
           5.
           
           And
           the
           Case
           of
           Sir
           
             Arthur
             Ingram
          
           was
           cited
           ,
           who
           bought
           the
           Office
           of
           Cofferer
           ;
           he
           was
           holden
           by
           Egerton
           Lord
           Chancellor
           ,
           and
           Coke
           Chief
           Justice
           ,
           uncapable
           of
           that
           Office
           ,
           by
           force
           of
           the
           Statute
           of
           5
           E.
           6.
           c.
           16.
           tho'
           he
           had
           a
           
             Non
             Obstante
          
           ;
           and
           the
           reason
           there
           given
           is
           in
           these
           words
           :
        
         
           For
           the
           Person
           being
           disabled
           by
           the
           Statute
           ,
           could
           not
           be
           enabled
           by
           the
           King
           :
           And
           yet
           the
           Office
           of
           Cofferer
           is
           a
           special
           Service
           about
           the
           King's
           Person
           ,
           and
           his
           Treasure
           .
        
         
           The
           Lord
           Chief
           Justice
           Vaughan
           ,
           in
           his
           Reports
           of
           the
           Case
           of
           Thomas
           and
           
             Sorrel
             ,
             fol.
          
           354
           ,
           355.
           gives
           this
           for
           the
           reason
           why
           the
           King
           cannot
           dispense
           with
           a
           Man
           to
           buy
           an
           Office
           contrary
           to
           the
           Statute
           of
           E.
           6.
           nor
           with
           one
           Simoniacally
           presented
           ,
           to
           hold
           that
           Living
           ,
           or
           to
           
           be
           at
           any
           time
           after
           presented
           to
           it
           ;
           nor
           with
           any
           of
           the
           House
           of
           Commons
           not
           to
           take
           the
           Oath
           of
           Allegiance
           ,
           according
           to
           the
           Statute
           of
           7
           Jac.
           1.
           c.
           6.
           
           Because
           (
           says
           he
           )
           the
           Persons
           were
           made
           incapable
           to
           hold
           such
           Office
           or
           Living
           ,
           and
           a
           Person
           incapable
           is
           a
           dead
           Person
           ,
           and
           no
           Person
           at
           all
           ,
           to
           that
           wherein
           he
           is
           incapable
           .
        
         
           And
           a
           Member
           of
           the
           House
           of
           Commons
           is
           by
           7
           
             Jac.
             Persona
             inhabilis
          
           .
        
         
           1.
           
           Inst.
           fol.
           120.
           
           In
           the
           Case
           of
           the
           Simonist
           ,
           Sir
           
             E.
             C.
          
           says
           ,
           The
           Act
           so
           binds
           the
           King
           ,
           as
           that
           he
           cannot
           present
           him
           that
           the
           Law
           hath
           disabled
           ,
           for
           ever
           after
           ,
           to
           be
           presented
           to
           that
           Church
           .
           The
           words
           of
           the
           Act
           be
           :
           
             He
             shall
             be
             from
             thenceforth
             adjudged
             a
             disabled
             Person
             in
             Law
             ,
             to
             have
             or
             enjoy
             the
             same
             Benefice
             .
          
           And
           the
           Party
           being
           disabled
           by
           the
           Act
           (
           says
           Sir
           
             E.
             C.
          
           )
           cannot
           be
           dispens'd
           withal
           by
           any
           Grant
           by
           a
           
             Non
             Obstante
          
           ,
           as
           it
           may
           be
           where
           any
           thing
           is
           prohibited
           
             sub
             modo
          
           ,
           as
           upon
           a
           Penalty
           given
           to
           the
           King.
           
        
         
           The
           Case
           of
           Sir
           
             John
             Bennet
          
           does
           not
           at
           all
           contradict
           these
           Authorities
           .
           It
           is
           
             Croke
             ,
             Car.
          
           55.
           
           Sir
           
             John
             Bennet
          
           by
           Sentence
           in
           the
           Star-Chamber
           ,
           was
           made
           incapable
           of
           any
           Office
           of
           Judicature
           for
           Bribery
           ,
           Res.
           by
           all
           the
           Judges
           ,
           and
           Barons
           ,
           that
           by
           the
           King's
           Pardon
           ,
           all
           Inabilities
           are
           discharg'd
           ,
           because
           the
           Sentence
           could
           not
           take
           the
           Office
           from
           him
           being
           Freehold
           ,
           over
           which
           the
           Court
           had
           no
           Power
           .
        
         
           So
           that
           after
           so
           often
           declaring
           by
           several
           Acts
           of
           Parliament
           ,
           Grants
           ,
           and
           Patents
           made
           contrary
           to
           their
           Acts
           to
           be
           void
           ,
           and
           all
           Dispensations
           ,
           and
           
             Non
             Obstante's
          
           ,
           to
           the
           contrary
           of
           the
           Laws
           made
           by
           them
           ,
           to
           be
           void
           ,
           and
           inflicting
           Penalties
           upon
           such
           as
           should
           obtain
           those
           Grants
           ,
           and
           
             Non
             Obstante's
          
           ,
           or
           make
           use
           of
           them
           as
           appears
           by
           a
           multitude
           of
           Acts
           ;
           and
           all
           these
           too
           weak
           ,
           and
           all
           in
           vain
           by
           the
           Judges
           allowance
           of
           these
           
             Non
             Obstante's
          
           ,
           the
           Parliament
           had
           no
           other
           sence
           against
           these
           
             Non
             Obstante's
          
           ,
           but
           to
           fix
           a
           disability
           in
           the
           Persons
           ,
           and
           to
           make
           them
           uncapable
           of
           taking
           the
           benefit
           of
           such
           Grants
           ;
           and
           this
           hath
           held
           good
           till
           now
           ,
           but
           now
           they
           break
           through
           this
           too
           .
        
         
           And
           as
           I
           observ'd
           in
           the
           Pope's
           Exercise
           of
           his
           Power
           of
           Dispensing
           ,
           that
           it
           was
           used
           with
           some
           moderation
           at
           first
           ,
           in
           Cases
           that
           seem'd
           to
           be
           of
           great
           necessity
           only
           ,
           but
           at
           last
           ,
           by
           degrees
           ,
           it
           grew
           to
           be
           intolerable
           and
           unlimited
           :
           So
           the
           like
           may
           be
           observ'd
           in
           the
           use
           of
           this
           Prerogative
           .
        
         
           3.
           
           Instit.
           fol.
           236
           ,
           in
           the
           Chapter
           of
           Pardons
           ,
           by
           divers
           Acts
           of
           Parliament
           ,
           the
           King's
           Power
           of
           Granting
           Charters
           of
           Pardon
           hath
           been
           restrained
           ,
           as
           by
           2
           E.
           3.
           c.
           2.
           10
           
           E.
           3.
           c.
           2.
           14
           
           E.
           3.
           c.
           14.
           13
           
           R.
           2
           Stat.
           2.
           c.
           1.
           these
           are
           ancient
           Statutes
           .
           It
           hath
           been
           conceiv'd
           (
           says
           Sir
           
             E.
             C.
          
           )
           which
           we
           will
           not
           question
           (
           says
           he
           )
           that
           the
           King
           may
           dispense
           with
           these
           Laws
           by
           a
           
             Non
             Obstante
          
           .
           Yet
           Sir
           
             E.
             C.
          
           there
           declares
           ,
           That
           he
           found
           not
           any
           such
           Clauses
           of
           
             Non
             O●stante
          
           ,
           to
           dispense
           with
           any
           of
           these
           Statutes
           ,
           but
           of
           late
           times
           .
           This
           shews
           that
           it
           is
           a
           growing
           mischief
           and
           had
           not
           been
           anciently
           used
           ,
           as
           it
           ought
           to
           have
           been
           to
           make
           it
           a
           good
           Prescription
           and
           Prerogative
           .
        
         
           I
           shall
           now
           examine
           the
           Authorities
           and
           Cases
           that
           are
           cited
           in
           defence
           of
           this
           Prerogative
           and
           Power
           of
           dispensing
           with
           a
           disability
           impos'd
           by
           Act
           of
           Parliament
           ;
           for
           I
           do
           not
           purposely
           dispute
           it
           in
           any
           other
           Case
           ,
           but
           as
           they
           are
           coincident
           with
           this
           .
        
         
           The
           first
           that
           we
           meet
           with
           ,
           is
           that
           of
           2
           H.
           7.
           fol.
           6.
           and
           it
           was
           by
           all
           the
           Justices
           in
           the
           Exchequer-Chamber
           .
           The
           Case
           thus
           :
        
         
         
           King
           Edward
           the
           Fourth
           granted
           the
           Office
           of
           Sheriff
           of
           a
           County
           to
           the
           Earl
           of
           Northumberland
           ,
           for
           the
           Life
           of
           the
           Earl
           ,
           and
           the
           Justices
           held
           the
           Patent
           good
           ,
           there
           being
           a
           
             Non
             Obstante
          
           in
           it
           to
           the
           Statutes
           .
        
         
           Let
           us
           look
           into
           *
           the
           Statutes
           that
           forbid
           a
           Sheriff
           to
           continue
           in
           his
           Office
           longer
           then
           one
           Year
           :
           There
           had
           been
           several
           †
           ancient
           Statutes
           made
           to
           that
           purpose
           ,
           but
           they
           all
           prov'd
           to
           be
           of
           little
           effect
           ,
           for
           Patents
           were
           still
           granted
           to
           hold
           the
           Office
           of
           a
           Sheriff
           ,
           for
           a
           longer
           time
           than
           one
           Year
           .
        
         
           At
           length
           came
           the
           Stat.
           23.
           
           H.
           6.
           c.
           8.
           which
           recites
           the
           former
           Statutes
           forbidding
           any
           Persons
           continuance
           in
           the
           Office
           of
           Sheriff
           ,
           above
           one
           Year
           ;
           and
           observing
           the
           great
           Oppressions
           and
           Abuses
           to
           the
           People
           ,
           that
           did
           arise
           from
           it
           ,
           and
           how
           that
           yet
           they
           were
           granted
           contrary
           to
           those
           Statutes
           .
           This
           Statute
           therefore
           of
           23
           Hen.
           6.
           ordains
           that
           those
           Statutes
           shall
           be
           duly
           observ'd
           .
           And
           further
           ordains
           ,
           That
           if
           any
           occupy
           that
           Office
           contrary
           to
           those
           Statutes
           ,
           or
           to
           the
           effect
           or
           intent
           of
           any
           of
           them
           ,
           he
           shall
           forfeit
           two
           hundred
           Pound
           yearly
           ,
           as
           long
           as
           he
           occupieth
           contrary
           to
           any
           of
           those
           Statutes
           ,
           and
           that
           every
           Pardon
           granted
           of
           that
           Forfeiture
           shall
           be
           void
           ,
           and
           that
           all
           Patents
           made
           of
           the
           Office
           of
           Sheriff
           ,
           for
           Years
           ,
           or
           any
           longer
           time
           ,
           shall
           be
           void
           ,
           any
           Clause
           ,
           or
           word
           of
           
             Non
             Obstante
          
           in
           any
           wise
           put
           ,
           or
           to
           be
           put
           in
           such
           Patents
           notwithstanding
           ;
           and
           every
           such
           Person
           is
           thereby
           disabled
           to
           bear
           that
           Office.
           
        
         
           Nothing
           could
           be
           penn'd
           stronger
           than
           this
           Statute
           ,
           and
           it
           is
           a
           Law
           made
           by
           the
           Supream
           Legislative
           Power
           of
           the
           Nation
           ,
           and
           it
           expresses
           the
           former
           granting
           of
           
             Non
             Obstante's
          
           to
           be
           a
           great
           abuse
           ,
           and
           to
           be
           contrary
           to
           Law.
           Yet
           contrary
           to
           the
           express
           words
           ,
           and
           clear
           intent
           and
           meaning
           of
           this
           Statute
           ,
           did
           all
           the
           Judges
           resolve
           in
           2
           H.
           7.
           
           That
           by
           a
           
             Non
             Obstante
          
           ,
           a
           Patent
           for
           a
           longer
           time
           than
           a
           Year
           should
           be
           good
           ,
           of
           the
           Sheriffs
           Office.
           
        
         
           The
           King
           ,
           and
           both
           Houses
           were
           of
           Opinion
           ,
           that
           they
           could
           make
           a
           
             Non
             Obstante
          
           in
           such
           Case
           void
           .
           The
           Judges
           are
           of
           a
           contrary
           Opinion
           ,
           that
           a
           
             Non
             Obstante
          
           shall
           make
           void
           the
           Statute
           .
           Here
           is
           an
           Inferiour
           Court
           over-ruling
           and
           controuling
           the
           Judgment
           of
           a
           Superiour
           Court.
           The
           Judges
           who
           are
           but
           
             Jura
             dicere
          
           ,
           contradict
           those
           who
           have
           the
           Power
           
             Jura
             dare
          
           ,
           as
           well
           as
           
             Jura
             dicere
          
           ,
           and
           of
           Correcting
           the
           Errors
           of
           the
           highest
           Court
           in
           Westminster
           ,
           and
           controuling
           their
           Judgments
           .
        
         
           The
           Statute
           was
           a
           meer
           idle
           nugatory
           thing
           ,
           if
           it
           were
           not
           to
           restrain
           the
           granting
           of
           a
           
             Non
             Obstante
          
           :
           if
           it
           did
           not
           that
           ,
           it
           did
           nothing
           .
           The
           King
           himself
           alone
           ,
           (
           if
           he
           had
           pleas'd
           )
           could
           without
           any
           Act
           of
           Parliament
           ,
           have
           reform'd
           the
           Abuse
           ,
           by
           refusing
           to
           pass
           any
           such
           Patents
           for
           a
           Sheriffs
           continuing
           in
           his
           Office
           longer
           than
           a
           Year
           .
           But
           the
           King
           was
           sensible
           of
           the
           Abuses
           ,
           and
           therefore
           willing
           to
           be
           restrained
           from
           passing
           any
           more
           such
           Patents
           ,
           and
           to
           avoid
           any
           importunity
           that
           might
           be
           used
           for
           the
           obtaining
           any
           such
           Patents
           ,
           and
           therefore
           consented
           that
           a
           Law
           should
           pass
           to
           make
           such
           Patents
           void
           .
           And
           after
           all
           ,
           shall
           the
           King
           (
           if
           he
           pleases
           )
           still
           make
           the
           like
           Grants
           ?
           Why
           then
           the
           Act
           was
           of
           no
           manner
           of
           use
           ,
           and
           operates
           nothing
           ;
           and
           the
           Resolve
           of
           the
           Judges
           has
           made
           the
           Act
           a
           meer
           idle
           vain
           thing
           .
        
         
         
           But
           the
           twelve
           Judges
           in
           2
           H.
           7.
           have
           so
           resolv'd
           ,
           and
           the
           only
           use
           
           they
           would
           allow
           to
           all
           these
           Acts
           of
           Parliament
           is
           no
           more
           than
           this
           ,
           that
           if
           the
           King
           grant
           a
           Patent
           to
           one
           of
           the
           Sheriffs
           Office
           for
           more
           than
           one
           Year
           ,
           and
           there
           be
           no
           
             Non
             obstante
          
           in
           the
           Patent
           ,
           that
           then
           ,
           for
           want
           of
           a
           
             Non
             obstante
          
           ,
           the
           Patent
           should
           be
           void
           by
           those
           Acts
           of
           Parliament
           which
           otherwise
           would
           have
           been
           good
           ,
           had
           not
           those
           Acts
           made
           them
           void
           .
        
         
           But
           how
           easie
           would
           it
           be
           for
           one
           that
           obtains
           such
           a
           Patent
           ,
           to
           get
           
           the
           
             Non
             obstante
          
           to
           be
           inserted
           ?
           and
           who
           would
           accept
           such
           a
           Patent
           without
           a
           
             Non
             obstante
          
           ?
           and
           to
           whom
           would
           the
           
             Non
             obstante
          
           be
           denied
           to
           whom
           such
           a
           Patent
           is
           granted
           ?
           the
           Lord
           Hobart
           ,
           in
           the
           Case
           of
           Needler
           against
           the
           Bishop
           of
           
             Winchester
             ,
             fol.
          
           230.
           says
           it
           is
           denied
           to
           none
           ,
           and
           that
           it
           is
           in
           the
           power
           of
           the
           Attorney-General
           .
        
         
           The
           Reasons
           given
           by
           the
           Judges
           in
           2
           H.
           7.
           for
           that
           resolution
           ,
           are
           ,
           because
           the
           King
           had
           always
           used
           such
           a
           Prerogative
           of
           dispensing
           with
           the
           Acts
           of
           Parliament
           that
           required
           the
           *
           true
           value
           of
           the
           Lands
           ,
           and
           the
           certainty
           of
           the
           Lands
           to
           be
           mentioned
           in
           his
           Grants
           of
           Lands
           ,
           and
           with
           the
           Acts
           concerning
           the
           †
           shipping
           of
           Wool
           ,
           and
           pardoning
           of
           Murder
           (
           without
           express
           mentioning
           of
           the
           Murder
           .
           )
        
         
           These
           Cases
           are
           nothing
           alike
           ,
           but
           of
           a
           trifling
           consideration
           in
           respect
           
           of
           the
           Act
           we
           have
           in
           hand
           of
           25
           Car.
           2.
           
           And
           in
           these
           Cases
           the
           Penalty
           and
           *
           Forfeitures
           are
           given
           to
           the
           King
           ,
           and
           they
           concern
           the
           King's
           profit
           only
           to
           dispence
           with
           them
           :
           but
           in
           our
           Case
           the
           Safety
           of
           the
           Government
           ,
           
             &
             salus
             populi
          
           ,
           and
           the
           maintaining
           of
           the
           true
           Religion
           establish'd
           by
           Law
           ,
           are
           all
           concern'd
           ,
           and
           so
           the
           Case
           is
           not
           alike
           .
           And
           to
           compare
           this
           with
           those
           Cases
           ,
           is
           
             parvis
             componere
             magna
          
           .
        
         
           This
           Opinion
           and
           Resolution
           of
           the
           Judges
           in
           2
           H.
           7.
           has
           been
           the
           Foundation
           of
           all
           the
           like
           Opinions
           that
           have
           since
           that
           time
           been
           given
           of
           the
           King's
           Power
           of
           Dispensing
           with
           Disabilities
           and
           Incapacities
           impos'd
           by
           Acts
           of
           Parliament
           .
           Upon
           what
           ground
           the
           Justices
           held
           the
           Patent
           of
           the
           Sheriff's
           Office
           ,
           good
           to
           the
           Earl
           of
           Northumberland
           for
           Life
           ,
           does
           not
           appear
           ,
           whether
           because
           it
           had
           formerly
           been
           an
           Office
           of
           Inheritance
           ,
           and
           so
           within
           the
           Exception
           in
           the
           Statute
           of
           23
           H.
           6.
           or
           whether
           by
           virtue
           of
           a
           
             Non
             obstante
          
           to
           the
           Statutes
           ,
           as
           Ratclif
           only
           argues
           ,
           for
           the
           rest
           say
           nothing
           of
           the
           
             Non
             obstante
          
           .
           Some
           Resolutions
           have
           been
           to
           the
           contrary
           of
           that
           of
           2
           H.
           7.
           as
           in
           the
           Case
           that
           I
           cited
           of
           the
           King
           against
           the
           Bishop
           of
           Norwich
           ,
           in
           the
           Lord
           Hobart's
           Reports
           ,
           and
           the
           Case
           of
           Sir
           
             Arthur
             Ingram
          
           ,
           where
           it
           was
           adjudged
           ,
           that
           the
           King
           could
           not
           dispence
           with
           a
           Disability
           .
        
         
           And
           the
           Book
           of
           2
           R.
           3.
           fol.
           11
           &
           12.
           concerning
           Waterford
           in
           Ireland
           ,
           is
           of
           the
           King's
           Power
           to
           dispence
           with
           an
           Act
           of
           Parliament
           where
           the
           Forfeiture
           is
           given
           only
           to
           the
           King
           :
           so
           it
           comes
           not
           home
           to
           our
           Case
           .
        
         
           This
           Resolution
           of
           the
           Judges
           in
           2
           H.
           7.
           was
           the
           Precedent
           and
           leading
           Case
           to
           all
           the
           subsequent
           Opinions
           ,
           and
           was
           the
           Foundation
           of
           them
           ,
           and
           they
           all
           must
           stand
           and
           fall
           by
           it
           .
        
         
           Now
           it
           will
           be
           very
           evident
           ,
           that
           the
           King
           had
           no
           such
           Power
           or
           Prerogative
           of
           continuing
           Sheriffs
           in
           their
           Offices
           longer
           than
           a
           Year
           .
           For
           ,
           under
           favour
           ,
           the
           Making
           of
           Sheriffs
           ,
           doth
           not
           ,
           nor
           never
           did
           ,
           belong
           to
           the
           King
           ,
           neither
           at
           the
           Common
           Law
           ,
           nor
           by
           any
           Act
           of
           Parliament
           ;
           
           so
           that
           all
           these
           Opinions
           and
           Resolutions
           are
           built
           upon
           a
           sandy
           Foundation
           ,
           and
           have
           but
           
             debile
             fundamentum
          
           ,
           and
           they
           take
           that
           for
           granted
           ,
           which
           is
           not
           a
           truth
           .
        
         
           The
           Election
           of
           Sheriffs
           ,
           at
           the
           Common
           Law
           ,
           even
           from
           the
           very
           first
           Constitution
           of
           the
           Kingdom
           ,
           and
           by
           the
           Original
           Institution
           
           of
           the
           Government
           ,
           was
           in
           the
           Freeholders
           in
           the
           several
           Counties
           ,
           ever
           since
           there
           was
           any
           such
           Office
           as
           a
           Sheriff
           ,
           and
           ever
           since
           the
           Kingdom
           hath
           been
           divided
           into
           Shires
           ,
           that
           is
           ,
           in
           the
           time
           of
           the
           Saxons
           ,
           (
           from
           whom
           we
           derive
           most
           of
           our
           Common
           Law
           )
           and
           long
           after
           their
           time
           ,
           in
           the
           time
           of
           the
           Normans
           ,
           till
           being
           neglected
           by
           the
           Freeholders
           ,
           it
           came
           at
           length
           ,
           by
           an
           Act
           of
           Parliament
           ,
           made
           within
           the
           legal
           time
           of
           Memory
           ,
           to
           be
           taken
           from
           the
           Freeholders
           ,
           and
           the
           Power
           of
           Naming
           and
           Chusing
           Sheriffs
           every
           Year
           lodged
           in
           the
           hands
           of
           certain
           great
           Officers
           of
           State
           ,
           and
           so
           it
           continues
           to
           this
           day
           ;
           but
           neither
           is
           ,
           nor
           never
           was
           in
           the
           King.
           
        
         
           Mr.
           Lambard
           ,
           in
           his
           Book
           
             de
             Priscis
             Anglorum
             Legibus
             in
             his
             Lemma
             de
             Heretochiis
             ,
          
           fol.
           147.
           says
           ,
           that
           those
           Heretochii
           were
           
             Ductores
             exercitus
             .
             (
             Here
          
           ,
           signifying
           an
           Army
           in
           the
           Saxon
           Tongue
           .
           The
           same
           as
           in
           the
           Dialect
           of
           this
           present
           Age
           may
           be
           called
           Lord-Lieutenants
           or
           Deputy-Lieutenants
           .
           The
           Law
           of
           King
           Edward
           (
           which
           I
           take
           to
           be
           the
           Confessor
           )
           speaks
           of
           these
           Heretochii
           ,
           in
           these
           words
           :
           
             Isti
             vero
             viri
             Eligebantur
             per
             Commune
             Concilium
             pro
             Communi
             utilitate
             regni
             per
             provincias
             &
             Patrias
             Universas
             &
             per
             singulos
             Comitatus
             in
             pleno
             Folkmote
             sicut
             &
             Vice-Comites
             Provinciarum
             &
             Comitatuum
             Eligi
             debent
             .
          
           This
           Law
           mentions
           this
           Election
           ,
           as
           an
           Use
           and
           Custom
           .
        
         
           If
           the
           King
           did
           not
           make
           the
           Sheriff
           ,
           he
           could
           not
           continue
           him
           Sheriff
           ;
           if
           he
           could
           not
           make
           him
           for
           a
           Year
           ,
           he
           could
           not
           grant
           him
           the
           Office
           for
           longer
           than
           a
           Year
           :
           the
           Sheriff
           had
           his
           Authority
           and
           Office
           from
           the
           Election
           ,
           not
           by
           Commission
           or
           Patent
           ,
           and
           that
           but
           for
           a
           Year
           .
        
         
           Sir
           
             Edward
             Coke
          
           ,
           in
           his
           Second
           Institutes
           ,
           in
           his
           Exposition
           of
           the
           Statute
           of
           Westminster
           1.
           
           Cap.
           10.
           concerning
           the
           Election
           of
           the
           Coroners
           
           by
           the
           Freeholders
           ,
           (
           which
           ever
           was
           so
           ,
           and
           so
           still
           continues
           )
           says
           ,
           there
           is
           the
           same
           reason
           for
           Election
           of
           Sheriffs
           ,
           and
           so
           (
           says
           he
           )
           it
           anciently
           was
           by
           Writ
           directed
           to
           the
           Coroners
           .
        
         
           In
           like
           manner
           were
           the
           Conservators
           of
           the
           Peace
           chosen
           ,
           in
           whose
           place
           the
           Justices
           of
           the
           Peace
           now
           succeed
           ,
           and
           so
           the
           Verderors
           of
           the
           Forrest
           are
           to
           this
           day
           .
        
         
           These
           were
           great
           and
           high
           Liberties
           ,
           and
           did
           belong
           to
           the
           Freeholders
           from
           all
           antiquity
           ,
           and
           are
           strong
           Arguments
           to
           confute
           those
           late
           Authors
           ,
           that
           will
           by
           no
           means
           allow
           of
           a
           limitted
           Government
           ,
           but
           leave
           us
           under
           an
           Absolute
           and
           Arbitrary
           Power
           ,
           and
           who
           call
           our
           Laws
           and
           Liberties
           ,
           but
           the
           Concessions
           and
           Condescensions
           from
           the
           Regal
           and
           Absolute
           Power
           .
        
         
           Sir
           
             Edward
             Coke
          
           discourses
           largely
           of
           these
           Elections
           ,
           in
           his
           Exposition
           of
           the
           Statute
           of
           
             Articuli
             super
             Chartas
          
           ,
           in
           his
           Second
           Institutes
           ,
           
           or
           
             Magna
             Charta
          
           ,
           fol.
           558.
           
           By
           this
           Statute
           (
           it
           is
           said
           )
           the
           King
           hath
           granted
           to
           his
           People
           ,
           that
           they
           have
           the
           Election
           of
           their
           Sheriff
           in
           every
           County
           where
           the
           Sheriff
           is
           not
           of
           Fee
           ,
           if
           they
           will.
           
           Sir
           
             Edward
             Coke
          
           says
           ,
           by
           this
           Act
           ,
           that
           ancient
           Right
           the
           People
           (
           that
           is
           ,
           the
           Freeholders
           )
           had
           ,
           was
           restor'd
           to
           them
           ;
           and
           the
           words
           (
           if
           they
           will
           )
           import
           ,
           that
           they
           formerly
           had
           it
           ,
           but
           neglected
           it
           .
        
         
           By
           a
           Statute
           made
           in
           the
           next
           King's
           Reign
           ,
           viz.
           9
           E.
           2.
           styled
           ,
           
             The
             Statute
             of
             Sheriffs
          
           ,
           upon
           pretence
           ,
           that
           insufficient
           persons
           were
           commonly
           chosen
           for
           Sheriffs
           :
           by
           that
           Act
           it
           is
           ordained
           ,
           that
           from
           thenceforth
           the
           Sheriffs
           shall
           be
           assigned
           by
           the
           *
           Chancellor
           ,
           Treasurer
           ,
           Barons
           of
           the
           Exchequar
           ,
           and
           by
           the
           Justices
           .
        
         
           And
           by
           the
           Statute
           of
           14
           E.
           3.
           c.
           7.
           some
           change
           is
           made
           of
           the
           persons
           that
           are
           to
           have
           the
           Election
           ,
           and
           the
           Day
           and
           Place
           of
           such
           Assigning
           of
           Sheriffs
           is
           prefix'd
           ,
           viz.
           yearly
           in
           the
           morrow
           of
           All-Souls
           ,
           and
           in
           the
           Exchequer
           .
        
         
           By
           the
           Statute
           of
           12
           R.
           2.
           c.
           2.
           the
           Assigning
           of
           the
           Sheriff
           is
           put
           into
           the
           hands
           of
           more
           great
           Officers
           ,
           who
           are
           to
           be
           sworn
           to
           execute
           this
           Trust
           faithfully
           ,
           but
           it
           is
           not
           vested
           in
           the
           King
           all
           this
           while
           ,
           nor
           never
           was
           .
        
         
           It
           is
           true
           ,
           that
           out
           of
           Reverence
           to
           the
           King
           ,
           these
           great
           Officers
           ,
           who
           had
           the
           Assigning
           of
           Sheriffs
           ,
           did
           afterwards
           use
           to
           name
           three
           persons
           ,
           out
           of
           which
           number
           they
           left
           it
           to
           the
           King
           to
           chuse
           one
           for
           every
           Shire
           .
           But
           this
           was
           more
           out
           of
           deference
           to
           the
           King
           ,
           than
           out
           of
           any
           strict
           Obligation
           so
           to
           do
           ,
           and
           the
           Election
           made
           by
           the
           King
           ,
           was
           in
           Law
           to
           be
           accounted
           an
           Assignment
           by
           these
           great
           Officers
           .
        
         
           Nor
           could
           the
           King
           chuse
           any
           other
           for
           Sheriff
           than
           one
           of
           those
           three
           so
           Assigned
           by
           those
           great
           Officers
           ,
           tho'
           it
           is
           sometimes
           otherwise
           practis'd
           .
           And
           this
           hath
           been
           a
           Resolution
           of
           all
           the
           Judges
           of
           England
           ,
           and
           is
           mentioned
           in
           Sir
           Coke's
           Second
           Institutes
           ,
           fol.
           559.
           it
           was
           in
           the
           34th
           Year
           of
           Henry
           the
           Sixth
           ,
           and
           it
           is
           in
           these
           words
           .
           viz.
           
        
         
           
             That
             the
             King
             did
             an
             Error
             ,
             when
             he
             made
             another
             person
             Sheriff
             of
          
           Lincolnshire
           
             then
             was
             chosen
             and
             presented
             to
             him
             by
             those
             great
             Officers
             ,
             after
             the
             effect
             of
             the
             Statute
             .
          
           So
           that
           the
           right
           of
           Electing
           Sheriffs
           by
           those
           great
           Officers
           ,
           we
           see
           ,
           continued
           so
           lately
           as
           the
           latter
           end
           of
           King
           Henry
           the
           Sixth
           ,
           and
           I
           know
           of
           no
           Law
           since
           ,
           that
           hath
           alter'd
           it
           :
           therefore
           we
           may
           conclude
           ,
           it
           is
           no
           Prerogative
           in
           the
           King.
           
        
         
           And
           we
           may
           further
           observe
           ,
           what
           plain
           Language
           all
           the
           Judges
           used
           in
           those
           days
           ,
           as
           to
           tell
           the
           King
           and
           the
           Lords
           of
           the
           Council
           ,
           that
           the
           King
           had
           erred
           in
           what
           he
           had
           done
           .
           I
           observe
           this
           the
           rather
           ,
           that
           it
           may
           be
           some
           excuse
           to
           me
           for
           the
           plain
           Language
           I
           am
           forced
           to
           use
           in
           the
           Arguing
           upon
           this
           Subject
           .
           The
           Lawyers
           are
           not
           always
           Courtiers
           ,
           nor
           will
           the
           Subject-matter
           bear
           Complements
           and
           Courtship
           .
           
             Ornari
             res
             ipsa
             negat
             ,
             contenta
             doceri
             .
          
        
         
           I
           cannot
           reconcile
           this
           Resolution
           of
           the
           twelve
           Judges
           ,
           given
           in
           the
           time
           of
           King
           Henry
           ths
           Sixth
           ,
           with
           that
           Opinion
           that
           is
           deliver'd
           in
           the
           Lord
           Dyer's
           Reports
           ,
           fol.
           225.
           b.
           and
           it
           is
           but
           an
           Opinion
           .
           5
           &
           6
           of
           Queen
           Elizabeth
           .
           In
           the
           time
           of
           the
           Plague
           ,
           the
           Sheriffs
           were
           named
           and
           made
           without
           assembling
           the
           Judges
           
             ad
             Crastinum
             Animarum
          
           at
           the
           Exchequer
           ,
           according
           to
           the
           common
           usage
           ,
           but
           for
           the
           most
           part
           none
           was
           made
           but
           one
           of
           the
           two
           that
           remain'd
           in
           the
           Bill
           the
           
           last
           Year
           .
           Tho'
           it
           was
           held
           ,
           (
           says
           the
           Report
           )
           that
           the
           Queen
           ,
           by
           her
           Prerogative
           ,
           might
           make
           a
           Sheriff
           ,
           without
           such
           Election
           ,
           by
           a
           
             Non
             Obstante
             aliquo
             Statuto
             in
             contrarium
             ,
          
           which
           crosses
           the
           Resolution
           I
           now
           mentioned
           .
           It
           is
           but
           an
           Opinion
           against
           a
           Solemn
           Resolution
           of
           all
           the
           twelve
           Judges
           .
        
         
           I
           find
           ,
           that
           some
           who
           had
           transgress'd
           that
           Act
           of
           23
           H.
           6.
           and
           had
           continued
           above
           one
           Year
           in
           that
           Office
           of
           Sheriff
           ,
           soon
           after
           the
           making
           of
           that
           Act
           ,
           did
           not
           think
           themselves
           secure
           against
           the
           Penalty
           of
           that
           Act
           by
           any
           
             Non
             obstante
          
           from
           the
           King
           ,
           but
           procur'd
           an
           Act
           of
           Parliament
           to
           indempnifie
           them
           for
           what
           they
           had
           done
           ;
           for
           ,
           
           by
           another
           Act
           made
           the
           28th
           of
           the
           same
           King
           Henry
           the
           Sixth
           ,
           it
           is
           ordain'd
           ,
           that
           the
           Sheriffs
           for
           the
           Year
           then
           last
           past
           ,
           should
           be
           quit
           and
           discharged
           against
           the
           King
           and
           his
           People
           ,
           of
           the
           Penalties
           of
           the
           200
           l.
           which
           they
           incurr'd
           by
           the
           Statute
           of
           23
           H.
           6.
           by
           Exercising
           the
           Office
           of
           Sheriff
           longer
           than
           a
           Year
           ,
           from
           the
           day
           next
           after
           the
           day
           of
           all
           All-Souls
           ,
           on
           which
           day
           ,
           by
           the
           Statute
           ,
           a
           new
           Election
           was
           to
           have
           been
           made
           .
        
         
           I
           have
           one
           great
           Authority
           more
           ,
           and
           that
           is
           of
           an
           Act
           of
           Parliament
           too
           ,
           which
           ,
           in
           my
           judgment
           ,
           clearly
           proves
           ,
           (
           against
           this
           Resolution
           of
           the
           twelve
           Judges
           in
           the
           time
           of
           2
           H.
           7.
           )
           that
           the
           King
           had
           no
           such
           Prerogative
           to
           dispence
           with
           the
           Sheriff's
           continuing
           in
           his
           Office
           longer
           then
           a
           Year
           .
           But
           that
           the
           only
           dispensing
           Power
           was
           in
           the
           King
           and
           Parliament
           ,
           as
           I
           have
           affirm'd
           ,
           and
           in
           the
           King
           ,
           when
           any
           Special
           Act
           of
           Parliament
           shall
           for
           a
           time
           limitted
           enable
           him
           so
           to
           dispence
           .
           And
           it
           is
           an
           Act
           in
           the
           time
           of
           a
           wise
           and
           powerful
           King
           ,
           who
           would
           not
           lose
           his
           Prerogative
           ,
           where
           he
           had
           right
           to
           it
           .
        
         
           It
           is
           the
           Statute
           of
           9
           H.
           5.
           c.
           5.
           in
           the
           Statutes
           at
           large
           ,
           this
           Statute
           recites
           the
           Statute
           of
           14
           E.
           3.
           whereby
           it
           was
           ordain'd
           ,
           that
           no
           Sheriff
           
           should
           continue
           in
           his
           Office
           above
           a
           Year
           .
           And
           it
           recites
           further
           ,
           that
           whereas
           at
           the
           making
           of
           that
           Statute
           ,
           there
           were
           divers
           valiant
           and
           sufficient
           persons
           ,
           (
           I
           suppose
           it
           is
           ill
           translated
           (
           valiant
           )
           and
           it
           should
           have
           been
           (
           men
           of
           value
           )
           in
           every
           County
           of
           England
           ,
           to
           exercise
           the
           said
           Office
           well
           ,
           towards
           the
           King
           and
           his
           People
           :
           But
           by
           reason
           of
           divers
           Pestilences
           within
           the
           Realm
           ,
           and
           Wars
           without
           the
           Realm
           ,
           there
           was
           not
           now
           such
           sufficiency
           of
           such
           persons
           .
           It
           is
           therefore
           ordained
           ,
           that
           the
           King
           ,
           by
           Authority
           of
           this
           Parliament
           of
           9
           H.
           5.
           may
           make
           the
           Sheriffs
           through
           the
           Realm
           ,
           at
           his
           will
           ,
           until
           the
           end
           of
           four
           Years
           ,
           notwithstanding
           the
           said
           Statute
           made
           14
           E.
           3.
           or
           any
           other
           Statute
           or
           Ordinance
           made
           to
           the
           contrary
           .
        
         
           Here
           the
           King
           is
           entrusted
           with
           the
           Power
           ,
           and
           that
           but
           for
           a
           short
           time
           in
           the
           very
           Case
           of
           continuing
           Sheriffs
           in
           their
           Offices
           longer
           than
           a
           Year
           ,
           and
           that
           in
           a
           case
           of
           great
           and
           absolute
           necessity
           ,
           and
           this
           by
           a
           Special
           Act
           of
           Parliament
           ,
           which
           plainly
           shews
           ,
           he
           could
           not
           do
           it
           by
           any
           Prerogative
           he
           had
           of
           dispensing
           ,
           for
           then
           he
           would
           never
           have
           taken
           it
           under
           an
           Act
           of
           Parliament
           .
        
         
           What
           ground
           therefore
           the
           Judges
           had
           in
           the
           second
           Year
           of
           Henry
           the
           Seventh
           ,
           to
           adjudge
           it
           to
           be
           a
           Prerogative
           in
           that
           King
           ,
           I
           cannot
           see
           :
           and
           that
           Resolution
           is
           the
           leading
           Case
           to
           all
           the
           Opinions
           that
           have
           been
           delivered
           in
           the
           Point
           ,
           since
           that
           time
           ,
           and
           the
           Opinions
           
           still
           justifie
           themselves
           by
           that
           one
           first
           Resolve
           ,
           and
           cite
           that
           for
           their
           great
           Authority
           :
           That
           Opinion
           seems
           to
           be
           delivered
           upon
           a
           sudden
           Question
           ,
           put
           to
           the
           Judges
           by
           the
           King's
           Council
           ,
           not
           argued
           nor
           deliberated
           on
           ,
           nor
           upon
           any
           Case
           that
           came
           Judicially
           before
           them
           ,
           and
           the
           Judges
           there
           take
           notice
           only
           of
           two
           ancient
           Statutes
           ,
           viz.
           28
           E.
           3.
           c.
           7.
           42
           
           E.
           3.
           c.
           9.
           both
           which
           barely
           forbid
           the
           Sheriffs
           to
           continue
           longer
           than
           a
           Year
           in
           their
           Office
           ,
           but
           no
           Penalty
           is
           imposed
           ;
           and
           the
           Earl
           of
           Northumberland's
           Case
           had
           a
           
             Non
             Obstante
          
           in
           it
           only
           to
           these
           two
           Statutes
           ,
           as
           appears
           by
           the
           Abridgement
           of
           that
           Case
           by
           Patent's
           Case
           ,
           109.
           
           So
           that
           they
           did
           but
           ,
           
             ad
             pauca
             respicere
             &
             de
             facili
             pronunciare
             .
          
           But
           they
           do
           not
           take
           the
           least
           notice
           of
           the
           Statute
           of
           23
           H.
           6.
           c.
           8.
           which
           makes
           the
           disability
           ,
           nor
           do
           the
           Judges
           in
           that
           Case
           ,
           give
           that
           reason
           for
           their
           Judgment
           ,
           as
           Sir
           
             E.
             C.
          
           hath
           since
           found
           out
           to
           justifie
           it
           ,
           viz.
           His
           Prerogative
           inseparable
           ,
           &c.
           
        
         
           Something
           may
           be
           observed
           from
           the
           time
           when
           that
           strange
           Resolution
           pass'd
           :
           
             Judicis
             Officium
             est
             ut
             res
             ita
             tempora
             rerum
             querere
             .
          
           It
           was
           in
           2
           Henry
           the
           Seventh
           ,
           in
           the
           beginning
           of
           the
           Reign
           of
           that
           King
           ,
           who
           stood
           high
           upon
           his
           Title
           and
           Power
           (
           if
           we
           may
           believe
           a
           late
           Historian
           .
           )
        
         
           (
           Mr.
           Buck.
           )
           in
           his
           History
           of
           the
           Life
           and
           Reign
           of
           Richard
           the
           Third
           ,
           who
           in
           his
           Second
           Book
           ,
           fol.
           54.
           discourses
           likewise
           of
           King
           Henry
           the
           Seventh
           ,
           and
           his
           Title
           to
           the
           Crown
           ,
           says
           of
           him
           ,
           That
           he
           seemed
           to
           wave
           all
           other
           Titles
           ,
           and
           stuck
           to
           that
           of
           his
           Sword
           and
           Conquest
           ,
           and
           at
           his
           Coronation
           he
           caused
           Proclamation
           to
           be
           made
           with
           these
           Titles
           ,
           
             Henricus
             Rex
             Anglioe
             Jure
             divino
             ,
             Jure
             humano
             ,
             &
             June
             belli
             ,
          
           &c.
           
           Which
           yet
           the
           Barons
           could
           not
           agree
           to
           ,
           tho'
           the
           King
           peremptorily
           avowed
           he
           might
           justly
           assume
           it
           ,
           having
           as
           a
           Conquerour
           ,
           entred
           the
           Land
           ,
           fought
           for
           the
           Crown
           ,
           and
           won
           it
           .
           The
           Barons
           answered
           (
           says
           the
           Historian
           )
           as
           peremptorily
           ,
           That
           he
           was
           beholding
           to
           them
           both
           for
           his
           Landing
           and
           Victory
           .
           But
           the
           more
           they
           opposed
           it
           ,
           the
           more
           he
           insisted
           upon
           it
           .
        
         
           Now
           that
           King
           that
           made
           his
           Title
           by
           Conquest
           ,
           might
           carve
           out
           to
           himself
           what
           Prerogatives
           he
           pleased
           ;
           And
           who
           durst
           dispute
           it
           with
           him
           ?
           And
           this
           probably
           might
           have
           some
           influence
           upon
           that
           Resolution
           of
           the
           Judges
           ,
           being
           so
           early
           after
           his
           Claim
           ,
           viz.
           2
           H.
           7.
           
        
         
           But
           I
           find
           Sir
           
             E
             Coke
          
           ,
           a
           Chief
           Justice
           of
           great
           Learning
           ,
           and
           of
           as
           great
           Integrity
           ,
           taking
           up
           the
           same
           Opinion
           :
           It
           is
           in
           the
           Reports
           that
           go
           by
           the
           Name
           of
           Sir
           Coke's
           ,
           12
           
             Rep.
             fol.
          
           18.
           
           No
           Act
           ,
           says
           he
           ,
           can
           bind
           the
           King
           from
           any
           Prerogative
           which
           is
           sole
           and
           inseparable
           to
           his
           Person
           ,
           but
           that
           he
           may
           dispense
           with
           it
           by
           a
           
             Non
             Obstante
          
           ,
           as
           a
           Soveraign
           Power
           to
           Command
           any
           of
           his
           Subjects
           to
           serve
           him
           for
           the
           Publick-weal
           ;
           and
           he
           instances
           in
           that
           of
           a
           Sheriff
           ,
           and
           quotes
           the
           Resolution
           of
           the
           Judges
           of
           2
           H.
           7.
           and
           urges
           that
           of
           Judges
           of
           Assize
           ,
           that
           they
           may
           go
           Judges
           of
           Assize
           in
           the
           Counties
           where
           they
           were
           born
           ,
           or
           did
           inhabit
           ,
           if
           the
           King
           dispense
           with
           it
           by
           a
           special
           
             Non
             Obstante
          
           .
        
         
           But
           he
           gives
           another
           instance
           ,
           which
           I
           presume
           none
           in
           these
           days
           will
           subscribe
           to
           ;
           and
           if
           he
           mistook
           himself
           in
           this
           instance
           ,
           he
           may
           be
           supposed
           to
           mistake
           and
           err
           in
           all
           the
           rest
           :
           Purveyance
           (
           says
           he
           )
           for
           the
           King
           and
           his
           Houshold
           is
           incident
           solely
           ,
           and
           inseparably
           to
           the
           Person
           of
           the
           King
           :
           And
           for
           this
           Cause
           the
           Act
           of
           Parliament
           of
           Henry
           the
           Third
           ,
           
             de
             tallagio
             non
             concedendo
          
           ,
           which
           barrs
           the
           King
           wholly
           of
           Purveyance
           ,
           
           is
           (
           says
           he
           )
           void
           .
           If
           this
           be
           Law
           ,
           what
           a
           Case
           are
           the
           Subjects
           in
           ,
           that
           have
           given
           a
           Recompence
           by
           a
           Revenue
           of
           Inheritance
           (
           in
           part
           of
           the
           Excise
           )
           to
           the
           King
           ,
           in
           lieu
           of
           Purveyances
           .
        
         
           It
           is
           sober
           Advice
           given
           by
           Learned
           Grotius
           ,
           in
           his
           Book
           
             De
             Jure
             Belli
             &
             pacis
          
           ,
           82.
           
           Let
           us
           not
           (
           says
           he
           )
           approve
           of
           all
           things
           ,
           tho'
           delivered
           by
           Authors
           of
           greatest
           Name
           ,
           for
           they
           often
           serve
           the
           Times
           ,
           or
           their
           Affections
           ,
           and
           bend
           the
           Rules
           as
           occasion
           requires
           .
        
         
           This
           Resolution
           of
           all
           the
           Judges
           ,
           in
           the
           Second
           of
           Henry
           the
           Seventh
           ,
           is
           again
           cited
           in
           Calvin's
           Case
           ,
           in
           Sir
           Coke's
           Seventh
           Report
           ,
           and
           there
           a
           Reason
           is
           given
           to
           justifie
           that
           Resolution
           ,
           which
           is
           not
           so
           much
           as
           touch'd
           upon
           in
           the
           Report
           itself
           ,
           of
           2
           H.
           7.
           but
           it
           has
           been
           studied
           and
           found
           out
           since
           that
           Resolution
           ,
           viz.
           That
           an
           Act
           cannot
           barr
           the
           King
           of
           such
           Service
           of
           his
           Subject
           ,
           which
           the
           Law
           of
           Nature
           did
           give
           him
           .
        
         
           And
           this
           is
           the
           main
           Reason
           insisted
           on
           in
           the
           late
           Judgment
           given
           in
           Sir
           Hales's
           Case
           (
           as
           I
           am
           informed
           )
           ;
           which
           is
           the
           only
           Case
           ,
           that
           I
           find
           ,
           which
           came
           to
           be
           argued
           upon
           the
           very
           point
           ,
           yet
           it
           was
           but
           lightly
           spoken
           to
           ,
           for
           that
           of
           2
           H.
           7.
           which
           is
           the
           first
           of
           the
           kind
           ,
           was
           not
           upon
           a
           Case
           that
           came
           Judicially
           before
           the
           Judges
           ,
           but
           was
           upon
           a
           Consultation
           only
           with
           the
           Judges
           ,
           and
           without
           Argument
           .
        
         
           Nor
           in
           any
           other
           Authorities
           that
           I
           have
           cited
           ,
           grounded
           upon
           that
           Resolution
           of
           2
           H.
           7.
           did
           the
           Point
           directly
           come
           in
           question
           Judicially
           .
        
         
           And
           Calvin's
           Case
           is
           the
           first
           that
           I
           find
           ,
           which
           offers
           this
           special
           Reason
           ,
           viz.
           That
           no
           Act
           of
           Parliament
           can
           restrain
           the
           King
           from
           commanding
           the
           Service
           of
           his
           Subject
           ,
           but
           it
           is
           an
           inseparable
           Prerogative
           in
           the
           King
           ;
           and
           as
           Sir
           
             E.
             C.
          
           speaks
           in
           his
           12
           Rep.
           Tho'
           an
           Act
           makes
           the
           King's
           Patent
           void
           ,
           and
           tho'
           the
           King
           be
           restrained
           to
           grant
           a
           
             Non
             Obstante
          
           ,
           by
           the
           express
           words
           of
           the
           Act
           ,
           and
           tho'
           the
           Grantee
           is
           disabled
           by
           the
           Act
           to
           take
           the
           Office
           ,
           yet
           the
           King
           (
           says
           Sir
           
             Edward
             Coke
          
           )
           may
           by
           his
           Royal
           Soveraign
           Power
           of
           Commanding
           ,
           command
           a
           man
           by
           his
           Patent
           ,
           to
           serve
           him
           and
           the
           Weal-Publick
           ,
           in
           the
           Office
           of
           Sheriff
           for
           Years
           ,
           or
           for
           Life
           :
           And
           this
           the
           King
           may
           do
           for
           such
           Causes
           as
           he
           in
           his
           Wisdom
           shall
           think
           meet
           and
           profitable
           for
           himself
           ,
           and
           the
           Common-weal
           ,
           of
           which
           he
           himself
           is
           solely
           Judge
           ,
           says
           Sir
           
             E.
             C.
          
           So
           tho'
           the
           King
           and
           Parliament
           have
           adjudged
           and
           declared
           by
           a
           Law
           ,
           such
           a
           person
           ,
           or
           such
           a
           sort
           of
           persons
           to
           be
           altogether
           unfit
           for
           such
           a
           Service
           or
           Office.
           As
           for
           Example
           :
           They
           have
           adjudged
           Papists
           (
           who
           own
           a
           Forreign
           Authority
           and
           Jurisdiction
           ,
           and
           who
           hold
           Doctrines
           destructive
           and
           contrary
           to
           the
           Religion
           Established
           in
           this
           Kingdom
           )
           to
           be
           very
           unfit
           and
           uncapable
           of
           being
           entrusted
           with
           the
           maintaining
           of
           the
           Government
           ,
           and
           the
           Religion
           Established
           by
           Law
           ,
           in
           this
           Kingdom
           .
           Yet
           according
           to
           late
           Opinions
           and
           Resolutions
           ,
           tho'
           the
           King
           himself
           ,
           by
           the
           Advice
           of
           his
           Great
           Council
           ,
           have
           so
           adjudged
           and
           declared
           ,
           yet
           he
           may
           do
           otherwise
           ,
           and
           he
           may
           employ
           a
           Papist
           to
           defend
           the
           Protestant
           Religion
           ;
           and
           he
           is
           the
           sole
           Judge
           of
           the
           fitness
           of
           Persons
           for
           his
           Service
           .
           This
           is
           the
           Discourse
           ,
           this
           is
           the
           Argument
           and
           Reason
           used
           .
        
         
           Will
           this
           Reason
           be
           allowed
           of
           ,
           shall
           the
           King
           be
           the
           sole
           Judge
           of
           the
           Persons
           fit
           to
           serve
           him
           in
           all
           Cases
           ,
           and
           is
           it
           an
           inseparable
           Power
           and
           Prerogative
           in
           the
           Person
           of
           the
           King
           ?
        
         
         
           I
           shall
           put
           a
           Case
           wherein
           the
           Judges
           depart
           from
           this
           Opinion
           ,
           and
           appear
           to
           be
           of
           another
           mind
           .
        
         
           In
           the
           Lord
           Anderson's
           Reports
           ,
           the
           2d
           Part
           ,
           118.
           
           It
           is
           there
           said
           ,
           If
           an
           Office
           in
           the
           King's-Bench
           or
           Common-Pleas
           be
           void
           ,
           and
           the
           placing
           of
           the
           Officer
           belongs
           to
           the
           King
           ,
           if
           the
           King
           grant
           it
           to
           a
           person
           not
           able
           to
           execute
           it
           ,
           the
           *
           Grant
           is
           void
           ;
           as
           't
           is
           there
           held
           by
           many
           of
           the
           Justices
           .
           And
           there
           a
           Case
           is
           cited
           out
           of
           5
           E.
           4.
           rot
           .
           66.
           where
           one
           
             Tho.
             Wynter
          
           was
           placed
           by
           the
           King
           in
           the
           Office
           of
           Clerk
           of
           the
           Crown
           in
           the
           King's-Bench
           .
        
         
           The
           Judges
           ,
           before
           the
           King
           himself
           ,
           did
           declare
           him
           to
           be
           
             Inhabilem
             ad
             Officium
             illud
             pro
             commodo
             Regis
             &
             populi
             sui
             Exercendum
             ,
          
           and
           he
           was
           laid
           by
           ,
           and
           one
           
             Roger
             West
          
           (
           at
           the
           commendation
           of
           the
           Judges
           )
           was
           put
           in
           .
        
         
           Will
           any
           man
           presume
           to
           say
           the
           person
           is
           unfit
           ,
           when
           the
           King
           ,
           who
           is
           the
           sole
           Judge
           of
           the
           fitness
           of
           persons
           to
           serve
           him
           ,
           hath
           adjudg'd
           him
           fit
           ?
           yes
           ,
           the
           Judges
           ,
           in
           a
           Case
           that
           concerns
           the
           Courts
           where
           they
           sit
           ,
           (
           it
           seems
           )
           will
           controul
           the
           King
           's
           own
           judgment
           ,
           and
           judge
           the
           person
           inhabilis
           ,
           and
           hold
           the
           Grant
           void
           in
           such
           case
           .
        
         
           To
           compare
           our
           present
           Case
           with
           this
           :
           The
           King
           and
           Parliament
           by
           a
           Law
           have
           adjudged
           the
           Papists
           unfit
           to
           be
           entrusted
           with
           the
           Government
           ,
           and
           with
           the
           preserving
           of
           the
           Reform'd
           Religion
           :
           but
           (
           says
           the
           Judges
           )
           if
           the
           King
           ,
           without
           the
           Parliament
           ,
           judge
           otherwise
           ,
           his
           judgment
           shall
           prevail
           :
           why
           not
           as
           well
           in
           the
           case
           of
           an
           Office
           in
           the
           Courts
           at
           Westminster
           ,
           which
           does
           belong
           to
           the
           King
           to
           dispose
           of
           ,
           as
           in
           an
           Office
           that
           immediately
           concerns
           the
           Safety
           of
           the
           King
           and
           Kingdom
           and
           the
           great
           concernment
           of
           Religion
           ?
        
         
           So
           here
           is
           one
           Command
           of
           the
           Kings
           set
           up
           in
           opposition
           to
           another
           Command
           of
           the
           King.
           A
           Command
           of
           the
           King
           upon
           private
           advice
           ,
           or
           (
           it
           may
           be
           possible
           )
           gained
           from
           him
           by
           surprize
           ,
           by
           an
           importunity
           or
           an
           undue
           solicitation
           ,
           against
           a
           serious
           solemn
           deliberate
           Command
           of
           the
           King
           ,
           upon
           advice
           with
           his
           great
           Council
           ,
           and
           with
           the
           Consent
           of
           the
           whole
           Kingdom
           :
           this
           is
           the
           very
           Case
           before
           us
           .
        
         
           This
           is
           against
           all
           reason
           ,
           and
           against
           the
           Examples
           of
           the
           greatest
           ,
           wisest
           and
           most
           absolute
           of
           Kings
           and
           Princes
           ,
           who
           commanded
           their
           Judges
           to
           have
           no
           regard
           to
           any
           Commands
           of
           theirs
           ,
           that
           were
           contrary
           to
           Law.
           
        
         
           Vinius
           the
           Civilian
           ,
           in
           his
           Commentary
           on
           the
           Imperial
           Institutes
           ,
           fol.
           16.
           gives
           this
           Rule
           ,
           
             Rescripta
             Principum
             contra
             Jus
             vel
             utilitatem
             publicam
             ,
             Elicita
             à
             Judicibus
             improbari
             etiam
             ipsorum
             Imperatorum
             constitutionibus
             jubentur
             .
          
        
         
           
             Princeps
             non
             creditur
          
           (
           says
           he
           )
           
             aliquid
             velle
             contra
             utilitatem
             publicam
             concedere
             ,
          
           21
           H.
           8.
           c.
           13.
           sect
           .
           10
           ,
           11
           ,
           27.
           
           Dispensations
           for
           Pluralities
           ,
           contrary
           to
           Act
           ,
           are
           declared
           to
           be
           void
           ,
           Hob.
           82
           ,
           149
           ,
           146
           ,
           155.
           
           The
           King
           is
           never
           by
           Law
           supposed
           ill
           affected
           ,
           but
           abused
           and
           deceived
           ,
           for
           
             Eadem
             praesumitur
             mens
             Regis
             quae
             est
             Juris
             .
          
        
         
           
             Grotius
             de
             Jure
             belli
             &
             pacis
             ,
          
           112
           ,
           113.
           
           Amongst
           the
           Persians
           ,
           the
           King
           was
           Supreme
           ,
           yet
           he
           took
           an
           Oath
           at
           his
           entrance
           ,
           and
           it
           was
           not
           lawful
           for
           him
           to
           change
           certain
           Laws
           made
           after
           a
           particular
           form
           .
        
         
           If
           the
           King
           Establish
           the
           Decree
           ,
           and
           Sign
           the
           Writing
           ,
           it
           may
           not
           be
           changed
           ,
           according
           to
           the
           Law
           of
           the
           Medes
           and
           Persians
           ,
           which
           altereth
           not
           ,
           as
           we
           read
           in
           the
           Book
           of
           Daniel
           ,
           6
           Dan.
           8.
           12
           ,
           15.
           
        
         
         
           By
           the
           Act
           of
           2
           E.
           3.
           c.
           8.
           it
           is
           accorded
           and
           established
           ,
           that
           it
           shall
           not
           be
           commanded
           by
           the
           Great
           Seal
           ,
           nor
           the
           little
           Seal
           ,
           to
           disturb
           or
           delay
           Common
           Right
           ,
           and
           tho'
           such
           Commandments
           do
           come
           ,
           the
           Justices
           shall
           not
           therefore
           leave
           to
           do
           right
           in
           any
           point
           .
        
         
           
             Grotius
             ubi
             supra
          
           ,
           117.
           
           Antiochus
           the
           third
           ,
           sent
           a
           Rescript
           to
           the
           Magistrates
           ,
           that
           they
           should
           not
           Obey
           him
           ,
           in
           case
           he
           should
           command
           any
           thing
           against
           Law.
           
        
         
           And
           Constantine
           published
           the
           like
           ,
           That
           Orphans
           and
           Widows
           be
           not
           constrained
           to
           come
           to
           Court
           for
           Justice
           ,
           no
           ,
           not
           if
           the
           Emperor's
           Rescript
           be
           shewed
           .
        
         
           In
           the
           story
           of
           Daniel
           ,
           we
           read
           ,
           that
           King
           Darius
           signed
           the
           Writing
           ,
           and
           the
           Decree
           ,
           which
           indeed
           was
           but
           a
           snare
           laid
           for
           Daniel
           ,
           and
           Daniel
           had
           fallen
           into
           the
           snare
           :
           The
           King
           was
           his
           friend
           ,
           but
           could
           neither
           dispence
           with
           him
           ,
           nor
           pardon
           him
           ,
           tho'
           he
           were
           sore
           displeased
           with
           himself
           for
           signing
           the
           Decree
           ,
           
             And
             the
             King
             set
             his
             heart
             on
          
           Daniel
           
             to
             deliver
             him
             ,
             and
             he
             laboured
          
           (
           says
           the
           History
           )
           
             an
             whole
             day
             ,
             till
             the
             going
             down
             of
             the
             Sun
             to
             deliver
             him
             :
          
           he
           wanted
           such
           Judges
           as
           Cambyses
           had
           ,
           to
           find
           out
           an
           Evasion
           ;
           But
           the
           King
           himself
           sealed
           the
           stone
           that
           was
           laid
           upon
           the
           mouth
           of
           the
           Den
           with
           his
           own
           Signet
           ,
           and
           with
           the
           Signet
           of
           the
           Lords
           ,
           that
           the
           purpose
           might
           not
           be
           changed
           concerning
           Daniel
           .
        
         
           
             Nihil
             opus
             est
          
           (
           says
           a
           learned
           Author
           ,
           writing
           of
           the
           Government
           of
           
             England
             )
             Licentiam
             dominandi
             in
             Rege
             Coerceri
             ,
             quoniam
             quicquid
             in
             administranda
             rerum
             summa
             vel
             contra
             Patriae
             leges
             vel
             minus
             ex
             populi
             commodo
             gestum
             fuerit
             Id
             omne
             Ministris
             Luendum
             rejicitur
             Adeo
             ut
             non
             ab
             adulatione
             sed
             ab
             aequitate
             summa
             fluxerit
             Notum
             Axioma
             apud
             Nostrates
          
           Rex
           Nunquam
           
             potest
             Errare
             aut
             cuiquam
             injuriam
             facere
             Quippe
             in
             Administros
             &
             Conciliarios
             quorum
             est
             Admonere
             Principem
             iniqua
             volenti
             ,
             denegare
             operam
             ,
             aut
             officio
             renunciare
             ,
             potiusquam
             contra
             Leges
             quicquam
             jubenti
             parere
             tam
             culpa
             omnis
             quam
             paena
             derivari
             solet
             &
             debet
             .
          
        
         
           And
           we
           have
           seen
           Examples
           of
           such
           in
           our
           times
           ,
           many
           that
           have
           left
           good
           Places
           ,
           rather
           than
           act
           against
           their
           Judgments
           .
        
         
           There
           is
           a
           rare
           Example
           of
           this
           in
           the
           French
           History
           .
        
         
           Lewis
           the
           Eleventh
           ,
           King
           of
           France
           ,
           at
           the
           Pope's
           importunity
           ,
           had
           signed
           a
           Concordate
           for
           setting
           aside
           the
           Pragmatical
           Sanction
           which
           was
           made
           in
           defence
           of
           the
           Liberties
           of
           the
           Gallican
           Church
           ,
           and
           the
           King
           had
           undertaken
           to
           the
           Pope
           ,
           that
           his
           Parliaments
           should
           approve
           of
           what
           he
           had
           done
           ,
           and
           the
           King
           sent
           a
           Command
           to
           the
           Parliaments
           accordingly
           ,
           and
           required
           them
           to
           give
           a
           punctual
           obedience
           to
           his
           Order
           .
           The
           King's
           Advocate
           ,
           
             Johannes
             Romanus
          
           ,
           argued
           stoutly
           against
           it
           ,
           
           and
           being
           threatned
           to
           be
           turned
           out
           of
           his
           Place
           for
           his
           pains
           ,
           he
           said
           ,
        
         
           
             The
             King
             had
             freely
             bestowed
             that
             Office
             on
             him
             ,
             and
             he
             would
             discharge
             it
             faithfully
             ,
             as
             long
             as
             the
             King
             thought
             fit
             to
             continue
             him
             in
             it
             ,
             and
             should
             be
             ready
             to
             lay
             it
             down
             ,
             whenever
             it
             pleased
             the
             King
             :
             But
             he
             would
             suffer
             all
             things
             ,
             rather
             then
             do
             any
             thing
             against
             his
             Conscience
             or
             the
             King's
             Honour
             and
             the
             good
             of
             the
             Kingdom
             :
          
           and
           out
           he
           went.
           
        
         
           It
           will
           be
           admitted
           by
           those
           that
           argue
           for
           the
           Prerogative
           of
           Dispensing
           ,
           that
           tho'
           the
           King
           ,
           without
           the
           Parliament
           ,
           cannot
           dissolve
           nor
           
           repeal
           ,
           no
           nor
           so
           much
           as
           suspend
           the
           Law
           totally
           ,
           tho'
           but
           for
           a
           time
           ,
           
           but
           he
           may
           dispence
           with
           it
           ,
           as
           to
           some
           particular
           persons
           ,
           and
           for
           some
           limited
           time
           ,
           and
           so
           the
           Law
           will
           still
           remain
           in
           force
           against
           all
           others
           .
        
         
           Those
           that
           will
           argue
           thus
           ,
           do
           yet
           hold
           ,
           that
           the
           King
           is
           the
           sole
           
           Judge
           who
           are
           to
           be
           dispensed
           with
           ,
           so
           that
           he
           is
           not
           limited
           to
           any
           number
           ,
           nor
           to
           any
           time
           ,
           so
           that
           tho'
           he
           may
           not
           in
           the
           gross
           dispence
           with
           the
           Law
           ,
           yet
           he
           does
           the
           same
           thing
           by
           retail
           ,
           which
           comes
           all
           to
           one
           ,
           or
           it
           is
           in
           his
           Royal
           Will
           and
           Pleasure
           to
           do
           so
           :
           We
           are
           nothing
           beholding
           to
           the
           Judges
           if
           the
           King
           uses
           his
           Prerogative
           with
           moderation
           .
        
         
           According
           to
           that
           sort
           of
           Argument
           that
           is
           called
           Inductio
           :
           which
           is
           a
           
             particularibus
             ad
             Universalia
             progressus
          
           .
           He
           that
           can
           dispence
           with
           
             A
             ,
             B
             ,
             C
          
           ,
           and
           so
           with
           the
           24
           Letters
           ,
           one
           by
           one
           ,
           does
           in
           truth
           dispence
           with
           the
           whole
           Alphabet
           ;
           but
           he
           must
           not
           do
           it
           
             Uno
             Ictu
          
           .
        
         
           And
           we
           find
           it
           by
           Experience
           .
           What
           signifie
           those
           several
           Acts
           of
           Parliament
           that
           forbid
           a
           Judge
           of
           Assize
           to
           Execute
           that
           Office
           in
           the
           County
           where
           he
           was
           born
           or
           dwells
           ,
           they
           are
           easily
           and
           daily
           dispens'd
           with
           ?
        
         
           How
           many
           Acts
           have
           been
           made
           against
           pardoning
           of
           Murder
           ,
           and
           to
           make
           void
           such
           Pardons
           ,
           and
           what
           fruit
           have
           they
           had
           ?
           Let
           us
           hear
           a
           learned
           Judge
           plainly
           speaking
           his
           experience
           and
           his
           mind
           in
           it
           :
           Stamford
           ,
           in
           his
           
             Pleas
             of
             the
             Crown
          
           ,
           fol.
           101.
           says
           ,
           that
           tho'
           there
           are
           words
           to
           null
           and
           make
           void
           these
           Charters
           of
           Pardon
           ,
           yet
           by
           putting
           into
           the
           Charters
           of
           Pardon
           these
           words
           ,
           
             viz.
             Non
             Obstante
             aliquo
             Statuto
             in
             contrarium
             Edito
             ,
          
           the
           force
           of
           these
           Statutes
           is
           taken
           away
           ,
           and
           not
           only
           of
           these
           ,
           (
           says
           he
           )
           but
           also
           of
           all
           others
           ,
           in
           which
           this
           Clause
           of
           
             Non
             obstante
          
           is
           put
           ,
           and
           it
           is
           put
           (
           says
           he
           )
           in
           every
           Letters
           Patents
           .
        
         
           And
           fol.
           102.
           (
           he
           says
           )
           that
           the
           Statute
           of
           13
           R.
           2.
           
           Stat.
           2.
           c.
           1.
           and
           the
           rest
           of
           the
           Statutes
           to
           the
           same
           effect
           ,
           have
           always
           been
           destroy'd
           by
           that
           Clause
           of
           
             Non
             obstante
          
           ;
           and
           so
           false
           Suggestions
           have
           continued
           (
           says
           he
           )
           to
           this
           day
           without
           redress
           ,
           and
           abound
           from
           one
           day
           to
           another
           ,
           to
           the
           great
           detriment
           of
           the
           Publick
           Weal
           ,
           and
           do
           not
           cease
           till
           Princes
           have
           more
           regard
           what
           Charters
           they
           pass
           ;
           and
           he
           might
           have
           added
           ,
           till
           the
           King's
           Attorney
           and
           Council
           at
           Law
           shall
           have
           more
           Fidelity
           and
           Courage
           .
        
         
           I
           hear
           ,
           that
           in
           justification
           of
           such
           a
           Dispensation
           as
           this
           ,
           it
           was
           said
           
           in
           the
           Argument
           of
           the
           Case
           of
           Sir
           
             Edward
             Hales
          
           ,
           in
           the
           Court
           of
           King's-Bench
           ,
           That
           there
           is
           no
           Law
           whatever
           ,
           but
           may
           be
           dispensed
           with
           by
           the
           Supreme
           Law-giver
           ,
           as
           the
           Laws
           of
           God
           may
           be
           dispensed
           with
           by
           God
           himself
           ,
           as
           appears
           by
           God's
           command
           to
           Abraham
           ,
           to
           sacrifice
           his
           Son
           Isaac
           .
        
         
           So
           likewise
           may
           the
           Laws
           of
           Man
           be
           dispens'd
           with
           by
           the
           Supreme
           Legislator
           .
        
         
           I
           fully
           agree
           to
           this
           ,
           and
           have
           already
           argued
           upon
           this
           ground
           ,
           That
           
           the
           Legislators
           (
           and
           no
           other
           )
           can
           dispence
           with
           their
           own
           Laws
           ,
           and
           I
           have
           given
           several
           Instances
           and
           Examples
           wherein
           it
           was
           so
           practised
           ;
           that
           is
           ,
           by
           King
           and
           Parliament
           .
        
         
           But
           does
           this
           justifie
           the
           present
           Dispensation
           now
           in
           dispute
           ?
           I
           agree
           the
           King
           hath
           a
           great
           and
           most
           eminent
           part
           in
           the
           Legislature
           ,
           and
           in
           the
           passing
           of
           Laws
           ,
           it
           is
           he
           that
           quickens
           the
           Embrio
           ,
           and
           first
           
           gives
           it
           Life
           ,
           but
           under
           favour
           ,
           and
           with
           all
           due
           Reverence
           to
           the
           King
           ,
           I
           may
           affirm
           it
           ,
           That
           the
           King
           hath
           not
           the
           sole
           Legislature
           ,
           such
           as
           Almighty
           God
           hath
           over
           his
           Creatures
           ,
           but
           the
           whole
           Kingdom
           hath
           a
           share
           in
           that
           Power
           ,
           as
           I
           have
           fully
           proved
           ,
           as
           well
           as
           the
           King.
           
        
         
           I
           would
           cite
           one
           Case
           ,
           not
           so
           much
           to
           prove
           what
           I
           have
           said
           herein
           ,
           but
           rather
           to
           illustrate
           it
           :
           It
           was
           a
           Case
           in
           Hill.
           11
           
             Jac.
             B.
             R.
             Dominus
             Rex
          
           ,
           and
           Allen
           against
           Tooly
           ,
           in
           the
           Second
           Part
           of
           Bulstrode's
           Reports
           ,
           186
           ,
           to
           191.
           in
           an
           Information
           brought
           upon
           the
           Statute
           of
           5
           Eliz.
           for
           using
           the
           Trade
           of
           an
           Upholsterer
           ,
           in
           which
           he
           had
           not
           served
           as
           an
           Apprentice
           Seven
           Years
           .
           The
           Defendant
           pleaded
           ,
           That
           he
           was
           a
           Freeman
           of
           London
           ,
           and
           that
           by
           the
           Custom
           of
           London
           ,
           a
           Freeman
           might
           use
           any
           Trade
           ;
           and
           he
           alledged
           that
           the
           Custom
           was
           confirmed
           
             per
             Regem
             in
             Parliamento
          
           .
           It
           was
           holden
           first
           ,
           that
           there
           can
           be
           no
           good
           Act
           of
           Parliament
           ,
           without
           the
           three
           Consents
           ,
           viz.
           Of
           the
           King
           ,
           Lords
           ,
           and
           Commons
           .
           2.
           
           That
           tho'
           divers
           Acts
           of
           Parliament
           do
           not
           specifie
           these
           Three
           Assents
           ,
           but
           only
           mention
           the
           King
           as
           Dominus
           
           
             Rex
             Statuit
          
           ;
           and
           as
           it
           is
           in
           the
           Prince's
           Case
           ,
           
             Dominus
             Rex
             de
             Communi
             Concilio
             Statuit
          
           (
           and
           the
           like
           )
           :
           Yet
           when
           the
           Party
           will
           Plead
           ,
           he
           ought
           to
           Plead
           it
           according
           to
           Law
           ,
           and
           to
           set
           forth
           all
           the
           Assents
           ,
           that
           is
           ,
           of
           the
           King
           ,
           Lords
           ,
           and
           Commons
           :
           and
           this
           was
           the
           Opinion
           of
           the
           whole
           Court.
           Now
           Pleading
           is
           an
           exact
           setting
           forth
           of
           the
           Truth
           .
           We
           are
           not
           to
           raise
           Arguments
           from
           Forms
           of
           Speaking
           ,
           but
           rather
           from
           exact
           Pleading
           ,
           and
           the
           Resolutions
           of
           Judges
           :
           And
           tho'
           
             Magna
             Charta
          
           in
           the
           stile
           ,
           seems
           to
           be
           spoken
           by
           K.
           H.
           3.
           as
           by
           the
           word
           
             (
             concessimus
             )
          
           ;
           yet
           the
           Act
           of
           15
           E.
           3.
           c.
           1.
           recites
           that
           it
           was
           made
           a
           Law
           by
           the
           King
           ,
           Lords
           ,
           and
           Commons
           ,
           and
           that
           what
           is
           said
           to
           be
           granted
           ,
           was
           but
           their
           former
           Right
           .
           Lambert's
           Archion
           ,
           267
           ,
           &c.
           
        
         
           I
           hear
           ,
           that
           in
           speaking
           to
           the
           Case
           of
           Sir
           
             Edward
             Hales
          
           ,
           it
           was
           observed
           that
           by
           this
           Act
           of
           25
           Car.
           2.
           there
           is
           no
           incapacity
           ,
           or
           disability
           at
           the
           first
           ,
           and
           upon
           the
           admission
           to
           the
           Office
           put
           upon
           any
           Person
           from
           taking
           of
           an
           Office
           ,
           but
           that
           he
           is
           well
           admitted
           to
           it
           ,
           and
           the
           Grant
           is
           good
           ,
           and
           that
           time
           is
           given
           to
           take
           the
           Tests
           ,
           and
           if
           by
           the
           times
           given
           he
           fail
           to
           take
           them
           ,
           then
           he
           is
           to
           be
           disabled
           ,
           and
           the
           Grants
           are
           to
           become
           void
           ,
           but
           not
           before
           :
           Like
           a
           Condition
           subsequent
           that
           defeats
           the
           Estate
           ,
           which
           yet
           was
           well
           vested
           ;
           and
           then
           before
           the
           Grant
           is
           defeated
           ,
           and
           the
           Party
           become
           disabled
           ,
           the
           King's
           Dispensation
           steps
           in
           and
           prevents
           the
           Penalty
           and
           Disability
           :
           And
           herein
           (
           it
           was
           said
           )
           it
           differs
           from
           the
           Case
           of
           Symony
           ,
           and
           buying
           of
           Offices
           ,
           where
           the
           Interest
           never
           vested
           ,
           but
           the
           Person
           was
           first
           disabled
           .
        
         
           There
           is
           indeed
           a
           difference
           ,
           but
           none
           that
           is
           material
           ,
           for
           it
           is
           all
           one
           whether
           the
           Party
           be
           disabled
           to
           take
           ,
           or
           whether
           having
           well
           
           taken
           ,
           and
           been
           well
           admitted
           ,
           he
           is
           afterward
           disabled
           to
           hold
           ,
           and
           retain
           ,
           by
           not
           performing
           the
           Condition
           :
           For
           when
           he
           is
           first
           admitted
           ,
           it
           is
           
             sub
             modo
          
           ,
           and
           under
           a
           Condition
           ,
           that
           if
           he
           fail
           to
           perform
           what
           the
           Law
           requires
           ,
           his
           Office
           shall
           be
           void
           .
        
         
           Another
           Argument
           (
           as
           I
           hear
           it
           reported
           )
           was
           rais'd
           from
           the
           King
           's
           being
           a
           
             Soveraign
             Prince
          
           ,
           and
           from
           thence
           it
           was
           inferred
           ,
           that
           he
           
           might
           dispense
           with
           Laws
           that
           are
           Poenal
           upon
           necessity
           ,
           whereof
           he
           is
           the
           sole
           Judge
           .
        
         
         
           The
           ground
           of
           this
           Argument
           ,
           namely
           ,
           That
           the
           King
           is
           a
           Soveraign
           
           Prince
           ;
           if
           it
           serve
           for
           the
           Point
           in
           question
           ,
           it
           may
           also
           extend
           a
           great
           way
           further
           then
           to
           this
           question
           we
           have
           before
           us
           ,
           it
           is
           hard
           to
           limit
           the
           extent
           of
           it
           ,
           it
           seems
           to
           speak
           that
           we
           must
           obey
           
             without
             Reserve
          
           .
        
         
           The
           word
           
             (
             Soveraign
          
           )
           is
           French
           ,
           and
           in
           Latin
           is
           
             Supremus
             ,
             id
             est
             qui
             in
             alios
             potestatem
             habet
             :
          
           The
           Correlate
           whereof
           is
           ,
           Subditus
           ,
           or
           a
           Subject
           ,
           and
           is
           attributed
           frequently
           to
           some
           sorts
           of
           Subjects
           ,
           especially
           to
           the
           Heads
           or
           Superiours
           of
           Religious
           Orders
           .
        
         
           But
           among
           us
           ,
           tho'
           now
           frequently
           used
           in
           our
           humble
           Addresses
           to
           the
           King
           ,
           or
           in
           our
           reverend
           mention
           of
           him
           ,
           yet
           we
           find
           it
           very
           rarely
           ,
           if
           ever
           ,
           used
           in
           our
           ancient
           Acts
           of
           Parliament
           ,
           or
           in
           our
           Law
           Books
           .
        
         
           I
           find
           no
           mention
           of
           the
           very
           word
           among
           the
           many
           Attributes
           and
           Titles
           ascribed
           to
           Kings
           and
           Princes
           ,
           in
           Mr.
           Selden's
           Titles
           of
           Honour
           :
           He
           hath
           that
           which
           is
           Synonimous
           ,
           as
           Supream
           Monarch
           ,
           as
           it
           signifies
           in
           opposition
           ,
           or
           in
           distinction
           to
           Princes
           that
           are
           subordinate
           and
           feudatory
           ,
           such
           as
           Tacitus
           speaks
           of
           ,
           that
           the
           Romans
           (
           when
           their
           Government
           
           was
           Popular
           )
           had
           
             instrumenta
             servitutis
             ,
             Reges
          
           .
        
         
           But
           properly
           ,
           he
           is
           a
           King
           that
           is
           a
           Soveraign
           ,
           and
           hath
           no
           Superiour
           upon
           Earth
           :
           According
           to
           
             Martial
             ,
             Rex
             est
             qui
             Regem
             (
             Maxime
             )
             non
             habeat
             .
          
        
         
           And
           such
           we
           freely
           and
           cheerfully
           acknowledge
           the
           King
           to
           be
           ,
           and
           the
           best
           and
           most
           of
           his
           Subjects
           do
           swear
           that
           he
           is
           the
           only
           Supream
           Governour
           of
           this
           Realm
           ,
           and
           of
           all
           other
           his
           Dominions
           ,
           as
           well
           in
           all
           Spiritual
           ,
           or
           Ecclesiastical
           ,
           as
           Temporal
           Causes
           ,
           and
           that
           no
           Foreign
           Prince
           hath
           any
           Power
           within
           this
           Realm
           .
           And
           I
           wish
           that
           all
           the
           rest
           of
           his
           Subjects
           would
           heartily
           take
           this
           Oath
           :
           but
           this
           among
           others
           ,
           is
           that
           which
           Sir
           Hales's
           Dispensation
           extends
           to
           .
        
         
           Yet
           how
           from
           hence
           it
           can
           be
           argued
           that
           the
           King
           can
           dispense
           with
           his
           Laws
           ,
           I
           do
           not
           see
           .
           I
           mean
           Laws
           of
           the
           same
           nature
           as
           that
           we
           have
           now
           before
           us
           .
        
         
           Therefore
           those
           that
           used
           this
           Argument
           surely
           meant
           the
           word
           of
           (
           Soveraign
           )
           in
           another
           sence
           .
           
             viz.
             Absolute
             &
             Solutus
             a
             legibus
             .
          
        
         
           It
           they
           mean
           by
           (
           Soveraign
           )
           a
           Prince
           that
           is
           absolute
           ,
           and
           
             solutus
             a
             legibus
          
           (
           and
           they
           must
           understand
           it
           so
           ,
           or
           else
           I
           do
           not
           see
           how
           it
           is
           pertinent
           to
           the
           present
           Argument
           )
           this
           is
           of
           a
           mighty
           Consequence
           ,
           and
           ought
           to
           have
           been
           well
           considered
           before
           it
           had
           been
           used
           .
        
         
           I
           find
           the
           word
           in
           this
           sence
           (
           as
           I
           take
           it
           )
           propounded
           in
           an
           addition
           or
           saving
           to
           the
           Petition
           of
           Right
           ,
           3
           Car.
           1.
           
             viz.
             Not
             to
             infringe
             Soveraign
             Power
             :
          
           But
           it
           was
           not
           liked
           ,
           and
           upon
           Reasons
           given
           at
           a
           Conserence
           ,
           those
           that
           did
           propound
           it
           ,
           were
           satisfied
           to
           lay
           it
           aside
           .
           It
           may
           be
           read
           in
           the
           Memorials
           of
           the
           English
           Affairs
           ,
           fol.
           10.
           
        
         
           If
           the
           word
           (
           Soveraign
           )
           be
           meant
           in
           this
           sence
           ,
           it
           is
           oppos'd
           by
           all
           our
           ancient
           Authors
           ,
           Judges
           ,
           and
           others
           ,
           by
           plain
           and
           express
           Language
           ,
           whose
           very
           Writings
           I
           have
           before
           cited
           ,
           and
           I
           will
           but
           only
           touch
           upon
           them
           again
           .
        
         
           Fleta
           says
           ,
           
             Superiorem
             non
             habet
             Rex
             in
             Regno
             nisi
             Deum
             &
             Legem
             per
          
           
           
             Legem
             factus
             est
             Rex
          
           :
           This
           fully
           expounds
           the
           word
           Sovereign
           .
        
         
           Both
           Fleta
           and
           Bract.
           and
           Sir
           
             Gilbert
             Thornton
          
           (
           who
           was
           Chief
           Justice
           in
           Edw.
           the
           First
           's
           time
           )
           take
           notice
           of
           that
           :
           
             Jus
             Caesareum
          
           ,
           or
           
             Lex
             Regia
          
           ,
           as
           it
           is
           called
           by
           the
           Civilians
           ,
           
             Nec
             obstat
             quod
             dicitur
             quod
          
           
           
             Principi
             placet
             Legis
             habet
             vigorem
          
           :
           For
           it
           never
           was
           received
           in
           England
           ,
           but
           in
           a
           restrained
           sence
           .
        
         
           And
           with
           this
           agrees
           the
           ancient
           Coronation
           Oath
           ,
           That
           the
           King
           shall
           hold
           the
           Laws
           and
           Customs
           of
           the
           Realm
           ,
           
             which
             the
             People
             have
             chosen
          
           .
           But
           King
           H.
           8.
           with
           his
           own
           hand
           ,
           corrected
           the
           old
           Oath
           ,
           to
           the
           effect
           following
           ,
           viz.
           That
           he
           shall
           hold
           the
           Laws
           and
           Customs
           of
           the
           Realm
           ,
           not
           prejudicial
           to
           his
           Crown
           or
           Imperial
           Jurisdiction
           :
           The
           Original
           of
           this
           Correction
           is
           in
           Sir
           Cotton's
           Library
           †
           See
           the
           History
           of
           the
           Reformation
           :
           Sir
           
             John
             Fortescu
          
           ,
           sometime
           Chief
           Justice
           ,
           and
           afterwards
           Lord
           Chancellor
           ,
           in
           his
           Book
           
             De
             Laudibus
             Legum
             Angliae
          
           :
           The
           Civil
           Law
           (
           says
           he
           )
           runs
           thus
           ,
           
             Quod
             Principi
             placuit
             legis
             vigorem
             habet
             ,
             sed
             longe
             aliter
             potest
             ,
             Rex
             politice
             imperans
             quia
             nec
             Leges
             sine
             subditorum
             assensu
             mutari
             poterit
             :
             Potestas
             regia
             Lege
             Politica
             cohibetur
             .
          
        
         
           Sir
           
             Edward
             Coke
          
           ,
           in
           his
           12
           
             Rep.
             fol.
          
           63
           ,
           64
           ,
           and
           65.
           (
           says
           )
           It
           was
           greatly
           marvell'd
           that
           the
           Archbishop
           Bancroft
           durst
           inform
           K.
           James
           ‖
           that
           such
           absolute
           Power
           and
           Authority
           (
           as
           is
           there
           mentioned
           )
           belong'd
           to
           the
           King
           ,
           by
           the
           Word
           of
           God
           ,
           and
           there
           Sir
           
             E.
             C.
          
           cites
           the
           Sayings
           of
           these
           ancient
           Authors
           in
           our
           Law
           :
           But
           he
           says
           that
           the
           King
           was
           greatly
           offended
           with
           him
           .
        
         
           A
           Learned
           Civilian
           gives
           some
           restraint
           even
           to
           the
           
             Lex
             Regia
          
           in
           this
           point
           :
           Vinius
           in
           his
           Comment
           upon
           the
           
             Instit.
             fol.
          
           381
           ,
           
             Populus
             Romanus
             jura
             Majestatis
             omnia
             abdicative
             in
             principem
             transtulit
             ,
             hinc
             Principes
             Romani
             Legibus
             soluti
             fuerant
             .
          
           But
           he
           utterly
           opposes
           that
           Opinion
           of
           the
           School-men
           :
           
             Principem
             Legibus
             solutum
             esse
             quoad
             vim
             coactivam
             sed
             etiam
             quoad
             vim
             directivam
             .
             Rot.
             Parl.
          
           11.
           
           R.
           2.
           
           The
           King
           and
           Parliament
           declare
           ,
           That
           the
           Realm
           of
           England
           never
           was
           ,
           nor
           was
           it
           intended
           by
           the
           King
           and
           Lords
           ,
           that
           ever
           it
           should
           be
           governed
           by
           the
           Civil
           Law.
           
        
         
           In
           the
           deciding
           of
           the
           Great
           and
           Royal
           Controversie
           ,
           in
           the
           time
           of
           K.
           E.
           1.
           concerning
           Right
           of
           Succession
           in
           the
           Crown
           of
           Scotland
           ;
           it
           was
           debated
           by
           the
           Commissioners
           ,
           according
           to
           what
           Law
           that
           Case
           should
           be
           determined
           ;
           whether
           by
           the
           Law
           of
           England
           ,
           or
           of
           Scotland
           ,
           by
           the
           Civil
           Law
           ,
           as
           being
           the
           
             Jus
             gentium
          
           ,
           before
           the
           King
           of
           England
           ,
           as
           being
           the
           Superior
           Lord
           :
           they
           all
           at
           last
           concluded
           ,
           That
           the
           Civil
           Law
           by
           no
           means
           should
           be
           admitted
           :
           
             Ne
             inde
             Majestatis
             Anglicanae
             Juri
             fieret
             detrimentum
             .
          
           Seld.
           dissertatio
           ad
           Fletam
           ,
           539.
           
        
         
           Mr.
           Selden
           ,
           mentioning
           John
           of
           Salisbury
           ,
           who
           said
           ,
           that
           in
           his
           time
           there
           were
           those
           that
           did
           prefer
           the
           Civil
           Law
           before
           all
           other
           Laws
           ,
           especially
           ,
           that
           
             de
             absoluta
             principis
             potestate
             quae
             in
             lege
             habetur
             Regia
          
           ;
           he
           says
           ,
           it
           was
           meant
           of
           none
           but
           
             de
             assentatoribus
             illius
             saeculi
             exgenere
             Hieratico
             ,
             non
             de
             gente
             Anglicana
             aut
             de
             aliis
             qui
             Judiciis
             tunc
             praefuere
             ,
          
           It
           would
           have
           been
           far
           from
           any
           of
           the
           English
           Nation
           ,
           especially
           from
           any
           of
           the
           Judges
           ,
           to
           have
           maintained
           any
           such
           Opinion
           .
        
         
           But
           let
           it
           be
           understood
           
             (
             sano
             sensu
          
           )
           and
           in
           a
           proper
           and
           literal
           sence
           
           too
           ,
           and
           it
           is
           very
           true
           and
           agreeable
           to
           our
           Law
           ,
           
             quod
             Regi
             placuit
             legis
             vigorem
             habet
          
           ;
           without
           the
           King
           's
           Placet
           ,
           and
           his
           Royal
           Consent
           ,
           nothing
           is
           Law
           amongst
           us
           .
           The
           Laws
           already
           in
           force
           ,
           have
           had
           the
           Consent
           of
           his
           Predecessors
           ,
           and
           no
           new
           Law
           can
           pass
           without
           the
           Royal
           Assent
           ;
           nay
           ,
           they
           are
           his
           Royal
           Words
           ,
           
             Le
             Roy
             le
             veut
          
           ,
           that
           first
           gives
           life
           to
           any
           new
           Law.
           
        
         
           And
           the
           Judges
           Oath
           in
           the
           time
           of
           H.
           3.
           was
           ,
           that
           they
           should
           
           judge
           
             Secundum
             Legem
             &
             consuetudinem
             regni
          
           ;
           which
           words
           (
           as
           Mr.
           Selden
           there
           says
           )
           seem
           designedly
           to
           Exclude
           the
           
             Jus
             Caesareum
          
           then
           lately
           brought
           in
           :
           whereof
           ,
           as
           he
           says
           ,
           some
           were
           fond
           in
           those
           times
           ;
           and
           he
           tells
           us
           of
           what
           Order
           they
           were
           ,
           but
           they
           were
           not
           Common
           Lawyers
           nor
           Judges
           ,
           but
           the
           Hierarchy
           .
        
         
           But
           should
           Judges
           give
           countenance
           to
           any
           such
           Law
           in
           the
           Latitude
           of
           it
           ,
           they
           should
           be
           put
           in
           mind
           of
           what
           was
           done
           by
           King
           Edward
           the
           Confessor
           ,
           which
           we
           are
           taught
           by
           Sir
           
             Roger
             Twisden
          
           ,
           in
           his
           Preface
           to
           the
           Laws
           of
           William
           the
           First
           ,
           annexed
           to
           Mr.
           Lambert's
           Treatise
           ,
           
             De
             priscis
             Anglor
             '
             Legibus
          
           ,
           fol.
           155.
           
           Omnes
           (
           says
           he
           )
           
             qui
             Leges
             iniquas
             adinvenerant
             &
             injusta
             Judicia
             judicaverant
             multaque
             concilia
             contra
             Anglos
             dederant
             ,
             exlegavit
             :
          
           such
           Enemies
           to
           the
           Laws
           of
           England
           should
           be
           put
           out
           of
           the
           Protection
           of
           the
           Laws
           of
           
             England
             .
             Rode
             caper
             Vitem
             ,
             &c.
             
          
        
         
           It
           is
           said
           amongst
           the
           Laws
           of
           King
           Henry
           the
           First
           ,
           c.
           28.
           (
           and
           it
           is
           in
           the
           very
           Body
           of
           that
           Law
           )
           
             Lambert
             ,
             ibid.
          
           186.
           
           
             Gravius
             Lacerantur
             pauperes
             ,
             à
             pravis
             Judicibus
             ,
             quam
             à
             cruentis
             hostibus
             .
          
        
         
           The
           Lords
           of
           Parliament
           ,
           when
           any
           attempt
           is
           made
           to
           introduce
           the
           Caesarean
           Law
           ,
           (
           as
           once
           in
           the
           time
           of
           our
           K.
           H.
           3.
           there
           was
           an
           endeavour
           to
           bring
           in
           part
           of
           the
           Pontifician
           Law
           )
           and
           it
           was
           by
           the
           Bishops
           ,
           I
           make
           no
           doubt
           but
           they
           will
           answer
           
             Una
             voce
          
           ,
           as
           their
           Ancestors
           then
           
           did
           
             Nolumus
             Leges
             Angliae
             mutare
             quae
             hucusque
             usitatae
             sunt
             &
             approbatae
             .
          
           The
           Statute
           of
           
             Merton
             ,
             c.
          
           9.
           2
           
           
             Instit.
             fol.
          
           96.
           
        
         
           The
           Act
           of
           25
           Car.
           2.
           one
           of
           the
           principal
           Ends
           and
           Aims
           of
           it
           is
           ,
           to
           keep
           out
           that
           Foreign
           Power
           ,
           that
           would
           pretend
           to
           a
           Soveraignty
           or
           Supremacy
           over
           our
           Soveraign
           ,
           but
           the
           Dispensing
           with
           this
           Law
           (
           which
           is
           maintained
           to
           be
           a
           Right
           incident
           to
           the
           Soveraign
           Prince
           )
           seems
           to
           be
           the
           likeliest
           way
           of
           setting
           up
           again
           that
           Pretence
           and
           Claim
           of
           a
           Foreign
           Bishop
           ,
           which
           was
           so
           long
           usurp'd
           ,
           and
           against
           which
           Pretence
           so
           many
           Acts
           of
           Parliament
           have
           been
           made
           ,
           and
           which
           our
           ancient
           Kings
           did
           of
           old
           utterly
           renounce
           and
           disclaim
           ,
           and
           we
           know
           the
           same
           Foreign
           Bishop
           hath
           made
           another
           Pretence
           to
           England
           ,
           besides
           ,
           that
           Ecclesiastical
           Power
           ,
           by
           colour
           of
           a
           Resignation
           ,
           made
           by
           King
           John.
           But
           King
           Hen.
           3.
           
           Son
           and
           next
           Successor
           to
           King
           John
           ,
           in
           the
           General
           Council
           at
           
             Lyons
             ,
             Anno
          
           1245.
           by
           his
           Embassador
           and
           Advocate
           ,
           made
           a
           Special
           Protestation
           against
           that
           pretended
           Resignation
           made
           to
           Pandolphus
           ,
           the
           Pope's
           Legate
           ,
           
             (
             Innocent
          
           the
           Third
           )
           as
           a
           meer
           Nullity
           ,
           
             In
             quod
             nunquam
          
           
           
             consensit
             Regni
             Universitas
          
           ,
           and
           afterwards
           upon
           the
           Pope's
           issuing
           out
           of
           Process
           against
           K.
           E.
           3.
           and
           the
           whole
           Kingdom
           ,
           for
           the
           Homage
           and
           the
           Arrears
           of
           the
           1000
           Marks
           Rent
           due
           to
           him
           .
        
         
           The
           Parliament
           declared
           ,
           That
           King
           John
           ,
           nor
           no
           other
           ,
           could
           put
           himself
           or
           his
           Realm
           into
           such
           a
           subjection
           ,
           
             without
             their
             consent
          
           .
           
        
         
           And
           that
           it
           was
           against
           the
           Oath
           King
           John
           had
           taken
           at
           his
           Coronation
           .
        
         
           This
           Record
           expounds
           the
           word
           (
           Sovereignty
           )
           in
           the
           true
           sence
           of
           it
           ,
           namely
           ,
           that
           our
           Sovereign
           is
           no
           way
           subject
           to
           the
           Bishop
           of
           Rome
           ,
           or
           to
           any
           Foreign
           Power
           .
           But
           it
           doth
           no
           way
           import
           ,
           that
           the
           King
           can
           dispose
           of
           his
           People
           
             ut
             placuit
             Regi
          
           ,
           or
           alter
           the
           Government
           ,
           without
           the
           Peoples
           consent
           ,
           nor
           dispence
           with
           his
           Coronation-Oath
           ,
           but
           proves
           the
           quite
           contrary
           .
        
      
       
         
         
         
           A
           Short
           Argument
           UPON
           THE
           PLEADINGS
           Of
           the
           aforementioned
           CASE
           of
           Sir
           
             EDW.
             HALES
          
           .
        
         
           THE
           first
           Point
           argued
           by
           the
           Plaintiff's
           Councel
           was
           ,
           That
           it
           appears
           by
           the
           Declaration
           ,
           and
           it
           is
           now
           confess'd
           by
           the
           Defendant's
           joyning
           Demurrer
           ,
           that
           
             the
             Defendant
          
           hath
           
             been
             Indicted
          
           for
           this
           Offence
           ,
           in
           exercising
           the
           Office
           of
           a
           Colonel
           ,
           without
           having
           taken
           the
           Tests
           .
           And
           upon
           the
           Indictment
           he
           either
           did
           plead
           this
           Dispensation
           ,
           or
           might
           have
           pleaded
           it
           .
           And
           he
           is
           
             now
             Convict
          
           ,
           according
           to
           the
           direction
           of
           the
           Act
           of
           25
           Car.
           2.
           so
           that
           he
           now
           comes
           too
           late
           to
           plead
           it
           to
           this
           Action
           :
           for
           he
           cannot
           falsifie
           the
           Conviction
           ,
           nor
           averr
           any
           thing
           against
           the
           Record
           of
           it
           ,
           and
           bring
           the
           Fact
           to
           be
           tryed
           over
           again
           in
           this
           Action
           ;
           but
           is
           concluded
           and
           estopp'd
           in
           Law
           to
           say
           any
           thing
           to
           the
           contrary
           of
           that
           Record
           ,
           by
           which
           he
           is
           found
           guilty
           of
           the
           Offence
           against
           this
           Act
           of
           Parliament
           .
        
         
           The
           Defendant
           either
           did
           plead
           this
           Dispensation
           or
           Pardon
           to
           the
           Indictment
           ,
           in
           discharge
           of
           the
           Indictment
           ,
           and
           it
           hath
           been
           over-ruled
           by
           the
           Judges
           at
           the
           Assizes
           ,
           (
           as
           by
           Law
           it
           ought
           to
           be
           ,
           being
           no
           good
           Plea
           :
           )
        
         
           Or
           he
           might
           have
           pleaded
           it
           ,
           if
           he
           had
           been
           advis'd
           it
           had
           been
           a
           good
           Plea.
           And
           not
           having
           done
           it
           ,
           he
           hath
           elaps'd
           his
           time
           ,
           and
           now
           comes
           too
           late
           to
           plead
           it
           ,
           being
           Convict
           of
           the
           Crime
           .
        
         
           To
           this
           it
           was
           objected
           ,
           (
           as
           I
           hear
           )
           That
           the
           Plaintiff
           ,
           if
           he
           will
           take
           the
           advantage
           of
           an
           Estoppel
           ,
           ought
           to
           have
           set
           it
           forth
           by
           way
           
           of
           Replication
           to
           the
           Defendants
           Plea
           ,
           and
           to
           have
           relied
           upon
           
           it
           .
        
         
           For
           the
           Rule
           is
           ,
           That
           he
           that
           pleads
           an
           Estoppel
           ,
           must
           rely
           upon
           it
           as
           an
           Estoppel
           .
        
         
           It
           is
           true
           ,
           if
           a
           man
           will
           plead
           an
           Estoppel
           ,
           he
           must
           rely
           upon
           it
           .
           
        
         
           But
           in
           this
           Case
           the
           Plaintiff
           does
           not
           plead
           the
           Estoppel
           ,
           but
           the
           Estoppel
           appears
           by
           the
           Declaration
           ,
           and
           the
           Defendant's
           own
           Plea
           together
           :
           so
           that
           there
           was
           no
           need
           for
           the
           Plaintiff
           to
           set
           that
           forth
           by
           way
           of
           Replication
           ;
           which
           doth
           sufficiently
           appear
           by
           the
           Defendant's
           
           own
           Plea
           ,
           viz.
           That
           he
           did
           not
           take
           the
           Tests
           within
           the
           time
           limitted
           by
           the
           Act
           ,
           and
           the
           Conviction
           is
           confess'd
           by
           his
           Plea
           ,
           and
           joyning
           in
           Demurrer
           .
        
         
           If
           a
           man
           recover
           a
           Debt
           upon
           a
           Bond
           ,
           and
           before
           Execution
           dies
           ,
           if
           his
           Executor
           sue
           a
           
             Scire
             Facias
          
           upon
           that
           Judgment
           ,
           the
           Defendant
           cannot
           plead
           any
           Plea
           that
           he
           might
           have
           pleaded
           before
           ,
           as
           
             Non
             est
             factum
          
           ,
           or
           by
           Dures
           ,
           or
           the
           like
           :
           for
           he
           is
           concluded
           by
           the
           Judgment
           .
        
         
           In
           Jason
           and
           Ketes
           Case
           ,
           in
           Siderfen's
           Reports
           ,
           fol.
           43.
           by
           Bridgman
           ,
           Chief
           Justice
           ,
           a
           man
           shall
           never
           help
           himself
           by
           
             Audita
             querela
          
           ,
           (
           tho'
           that
           is
           an
           equitable
           Suit
           at
           Law
           )
           for
           any
           matter
           that
           he
           might
           have
           pleaded
           before
           .
        
         
           There
           is
           no
           Estoppel
           in
           this
           Case
           :
           for
           the
           Conviction
           is
           upon
           an
           Indictment
           ,
           which
           is
           the
           
             King's
             Suit
          
           ;
           and
           this
           is
           the
           
             Suit
             of
             another
             ,
             viz.
          
           the
           
           now
           Plaintiffs
           ,
           and
           so
           they
           are
           
             two
             distinct
             Suits
          
           .
        
         
           The
           Conviction
           upon
           the
           Indictment
           ,
           is
           an
           Estoppel
           against
           the
           Defendant
           himself
           ;
           of
           which
           any
           man
           may
           take
           the
           advantage
           ,
           and
           he
           himself
           shall
           never
           be
           admitted
           to
           averr
           against
           it
           .
           As
           in
           Maynyes
           Case
           ,
           in
           Leonard's
           first
           part
           ,
           fol.
           3.
           
        
         
           An
           Attainder
           for
           Treason
           is
           an
           Universal
           Estoppel
           ,
           of
           which
           any
           Stranger
           may
           take
           the
           advantage
           ,
           not
           only
           against
           the
           Party
           attainted
           ,
           
           but
           against
           his
           Wife
           too
           ,
           if
           she
           sue
           for
           Dower
           .
           And
           it
           does
           not
           run
           in
           Privity
           .
           By
           
             Manw.
             Ch.
          
           Bar.
           
        
         
           Where
           a
           man
           is
           attainted
           by
           his
           own
           Confession
           of
           a
           Felony
           ,
           a
           Stranger
           is
           not
           Estopp'd
           ,
           to
           say
           he
           was
           not
           guilty
           .
           But
           if
           A.
           commit
           Felony
           ,
           and
           after
           enfeoff
           
           
             I.
             S.
          
           of
           his
           Land
           ,
           and
           after
           A.
           is
           attaint
           of
           this
           Felony
           by
           Verdict
           ,
           there
           
             I.
             S.
          
           is
           Estopp'd
           ,
           and
           may
           not
           averr
           
           that
           A.
           was
           not
           guilty
           ,
           because
           he
           claims
           under
           him
           ;
           much
           less
           shall
           A.
           himself
           averr
           against
           the
           Verdict
           ,
           that
           he
           is
           not
           guilty
           .
           
        
         
           If
           a
           man
           be
           acquitted
           of
           Felony
           ,
           all
           the
           World
           ,
           says
           Grevil
           in
           
             Kellow
             .
             Rep.
          
           81.
           b.
           is
           Estoop'd
           to
           say
           the
           contrary
           .
           
           So
           
             vice
             versâ
          
           ,
           if
           he
           be
           convict
           ,
           by
           the
           same
           reason
           .
           
        
         
           As
           to
           that
           which
           is
           objected
           ,
           that
           the
           Conviction
           is
           upon
           an
           Indictment
           
           (
           which
           is
           the
           King's
           Suit
           )
           but
           this
           is
           another
           Suit
           ;
           and
           therefore
           the
           Verdict
           shall
           not
           conclude
           the
           Defendant
           in
           this
           Suit.
           
        
         
           This
           is
           
             not
             another
             Suit
          
           ,
           but
           in
           effect
           an
           Execution
           upon
           the
           Conviction
           ,
           and
           grounded
           upon
           that
           Record
           ;
           and
           therefore
           not
           meerly
           a
           
           new
           Suit
           ,
           but
           
             a
             dependant
             Action
          
           ;
           as
           a
           Writ
           of
           Error
           ,
           or
           
             an
             Audita
             quaerela
          
           ,
           
           or
           
             a
             Scire
             Facias
          
           upon
           a
           Record
           ,
           are
           dependant
           Suits
           ,
           or
           an
           
             Action
             of
             Debt
          
           upon
           a
           Judgment
           .
        
         
           The
           Act
           of
           25
           Car.
           2.
           c.
           2.
           hath
           made
           it
           Criminal
           in
           any
           person
           ,
           after
           his
           neglect
           of
           taking
           the
           two
           Oaths
           ,
           or
           of
           the
           Sacrament
           ,
           by
           the
           times
           limited
           ,
           to
           execute
           any
           such
           Office
           or
           Place
           of
           Trust
           :
           and
           for
           such
           Offence
           hath
           made
           him
           indictable
           at
           the
           Assizes
           ;
           and
           upon
           a
           Conviction
           the
           Offender
           incurs
           (
           among
           other
           Penalties
           )
           the
           forfeiture
           of
           500
           l.
           and
           gives
           it
           to
           any
           one
           that
           will
           sue
           for
           it
           in
           an
           Action
           of
           Debt
           .
        
         
           So
           the
           Statute
           hath
           directed
           the
           method
           of
           trying
           the
           Offence
           ,
           and
           of
           convicting
           the
           Offender
           ,
           by
           Indictment
           at
           the
           Assizes
           .
        
         
           And
           if
           he
           that
           sues
           for
           the
           Forfeiture
           shall
           be
           driven
           to
           prove
           the
           Offence
           over
           again
           ,
           then
           the
           
             Conviction
             at
             the
             Assizes
             serves
             for
             nothing
             ,
          
           but
           
           was
           all
           in
           vain
           .
           And
           such
           Construction
           defeats
           the
           intention
           of
           the
           Law-makers
           ,
           for
           they
           intended
           this
           for
           the
           only
           Tryal
           ,
           and
           not
           to
           have
           several
           Tryals
           ;
           for
           suppose
           it
           should
           be
           tryed
           again
           in
           this
           Action
           ,
           and
           a
           Verdict
           pass
           for
           the
           Defendant
           ,
           here
           shall
           be
           Tryal
           against
           Tryal
           ,
           and
           
             Verdict
             against
             Verdict
          
           .
           And
           such
           Construction
           ought
           to
           be
           made
           of
           Acts
           of
           Parliament
           ,
           as
           may
           not
           elude
           ,
           but
           agree
           with
           the
           intent
           of
           the
           Law-makers
           ;
           and
           so
           ,
           as
           that
           no
           Words
           ,
           Clause
           ,
           or
           Sentence
           ,
           shall
           be
           altogether
           idle
           and
           insignificant
           .
        
         
           And
           this
           Conviction
           upon
           the
           Indictment
           ,
           is
           
             the
             very
             ground
             of
             the
             Action
             of
             Debt
          
           brought
           by
           the
           now
           Plaintiff
           :
           for
           the
           words
           of
           the
           Act
           are
           ,
           
             And
             being
             thereupon
             lawfully
             Convicted
             upon
             any
             Indictment
             ,
             every
             such
             person
             shall
             from
             thence-forth
             forfeit
          
           500
           l.
           
        
         
           So
           that
           till
           there
           be
           such
           a
           Conviction
           ,
           there
           is
           no
           Forfeiture
           incurr'd
           of
           500
           l.
           nor
           no
           Action
           can
           be
           brought
           for
           the
           500
           l.
           The
           Offence
           must
           be
           prov'd
           and
           determin'd
           ,
           before
           any
           Action
           can
           be
           brought
           ;
           and
           therefore
           the
           proof
           of
           the
           Offence
           whereof
           the
           Defendant
           is
           convict
           ,
           must
           not
           be
           made
           in
           this
           Action
           over
           again
           :
           if
           it
           must
           ,
           what
           serves
           the
           Conviction
           for
           ?
        
         
           Suppose
           the
           Plaintiff
           here
           had
           brought
           his
           Action
           ,
           after
           the
           neglect
           of
           the
           Defendant
           of
           taking
           the
           Oaths
           ,
           and
           of
           receiving
           the
           Sacrament
           ,
           and
           his
           acting
           in
           his
           Office
           after
           such
           neglects
           ,
           and
           
             before
             any
             Conviction
          
           upon
           Indictment
           ,
           and
           had
           only
           averr'd
           ,
           that
           the
           Defendant
           had
           so
           neglected
           ,
           and
           yet
           acted
           ;
           would
           this
           Action
           have
           been
           well
           brought
           ?
           Or
           ,
           suppose
           there
           had
           been
           a
           Conviction
           ,
           but
           the
           
             Plaintiff
             had
             not
             set
             it
             forth
          
           in
           his
           Declaration
           ,
           but
           had
           only
           averr'd
           the
           Offence
           committed
           ;
           would
           this
           have
           been
           a
           good
           Declaration
           ?
           Surely
           it
           would
           not
           .
           This
           proves
           ,
           that
           the
           Record
           of
           the
           Conviction
           is
           the
           very
           ground
           and
           foundation
           of
           this
           Action
           ,
           and
           the
           Action
           would
           not
           lie
           without
           such
           Conviction
           :
           so
           that
           it
           is
           not
           
             a
             meer
             new
             Action
          
           ,
           but
           
             a
             dependant
             Action
          
           .
        
         
           And
           the
           usual
           difference
           is
           where
           the
           Action
           is
           
             a
             dependant
             Action
          
           ,
           depending
           
           upon
           a
           Record
           ,
           and
           grounded
           upon
           it
           ;
           and
           where
           it
           
             is
             a
             collateral
             Suit
          
           ,
           not
           depending
           upon
           that
           Record
           .
        
         
           An
           Action
           against
           the
           Sheriff
           for
           an
           Escape
           of
           one
           taken
           in
           Execution
           ,
           this
           is
           a
           dependant
           Action
           ,
           and
           is
           grounded
           upon
           the
           Record
           of
           the
           Judgment
           given
           against
           the
           Party
           that
           escap'd
           .
           The
           Sheriff
           cannot
           aver
           any
           thing
           against
           that
           Record
           ,
           and
           examine
           it
           over
           again
           ;
           nor
           can
           he
           take
           any
           advantage
           of
           Error
           or
           erroneous
           proceeding
           ,
           in
           obtaining
           that
           Judgment
           .
           *
           Saunders
           Rep.
           2
           part
           .
           101.
           
        
         
           So
           in
           an
           Action
           of
           Debt
           ,
           grounded
           upon
           a
           Judgment
           ,
           or
           in
           an
           
             Audita
             quaerela
          
           to
           be
           reliev'd
           upon
           a
           Judgment
           .
        
         
           And
           so
           in
           our
           Case
           ,
           this
           Action
           of
           Debt
           for
           the
           500
           l.
           is
           grounded
           upon
           the
           Conviction
           ,
           which
           must
           stand
           for
           truth
           ,
           as
           long
           as
           it
           remains
           in
           force
           not
           avoided
           by
           Error
           or
           Attaint
           .
        
         
           A
           
             Writ
             of
             Error
          
           to
           reverse
           a
           Judgment
           ,
           is
           a
           dependant
           Action
           :
           In
           error
           ,
           the
           Plaintiff
           may
           not
           averr
           any
           thing
           against
           the
           Record
           .
           
             Mullens
             versus
             Weldy
             .
             Siderfin's
          
           1st
           part
           94.
           
           Error
           was
           sued
           in
           the
           Kings-Bench
           to
           reverse
           a
           Judgment
           given
           in
           the
           Palace-Court
           .
           And
           the
           Plaintiff
           in
           Error
           assign'd
           for
           Error
           ,
           that
           the
           Duke
           of
           Ormond
           (
           who
           is
           principal
           Judge
           of
           that
           Court
           by
           Patent
           )
           was
           not
           there
           .
           It
           was
           agreed
           by
           the
           Court
           ,
           that
           it
           might
           not
           be
           assign'd
           for
           Error
           ,
           for
           it
           was
           contrary
           to
           the
           Record
           .
        
         
         
           But
           
             per
             Cur.
          
           in
           an
           Action
           of
           Trespass
           ,
           or
           false
           Imprisonment
           ,
           which
           (
           says
           that
           Report
           )
           are
           
             collateral
             Actions
          
           ,
           he
           may
           falsifie
           and
           assign
           that
           ,
           if
           he
           be
           taken
           upon
           such
           Judgment
           .
        
         
           So
           if
           a
           man
           be
           indicted
           and
           convict
           of
           an
           
             Assault
             and
             Battery
          
           ,
           and
           afterwards
           the
           person
           so
           assaulted
           brings
           his
           Action
           for
           the
           Battery
           ,
           this
           hath
           no
           dependance
           upon
           the
           Indictment
           or
           Conviction
           ,
           for
           it
           may
           be
           sued
           ,
           though
           there
           were
           no
           Indictment
           ,
           but
           is
           a
           distinct
           and
           
             collateral
             Suit.
          
           The
           Indictment
           and
           Verdict
           is
           no
           Estoppel
           ,
           nor
           can
           so
           much
           as
           be
           given
           in
           Evidence
           ,
           as
           is
           held
           by
           the
           whole
           Court
           in
           the
           Case
           of
           
             Sampson
             versus
             Yardley
          
           ,
           and
           Tothill
           ,
           19
           Car.
           2.
           
           B.
           R.
           Kebles's
           2
           part
           ,
           384.
           
           The
           like
           in
           
             an
             Appeal
             of
             Murder
             .
             Kebele's
          
           2
           part
           ,
           223.
           
        
         
           Another
           Penalty
           upon
           the
           Offender
           against
           this
           Statute
           of
           25
           Car.
           2.
           is
           ,
           That
           he
           shall
           
             be
             disabled
             to
             sue
          
           in
           any
           Action
           .
           Now
           suppose
           a
           person
           convict
           at
           the
           Assizes
           sues
           an
           Action
           ,
           may
           not
           the
           Defendant
           in
           that
           Action
           take
           the
           advantage
           of
           
             that
             Disability
          
           .
           and
           plead
           
             the
             Conviction
          
           ?
           As
           in
           Case
           of
           
             an
             Outlawry
          
           pleaded
           
             in
             Disability
          
           ,
           there
           need
           not
           be
           set
           forth
           all
           the
           proceedings
           in
           that
           Suit
           wherein
           the
           Plaintiff
           was
           outlawed
           ,
           but
           he
           may
           plead
           the
           Record
           of
           the
           Outlawry
           ,
           and
           rely
           upon
           it
           ,
           and
           it
           shall
           not
           be
           examin'd
           whether
           there
           was
           any
           just
           cause
           to
           sue
           him
           to
           the
           Outlawry
           ,
           or
           not
           .
        
         
           The
           Indictment
           ,
           the
           Defendant's
           Plea
           to
           it
           ,
           and
           the
           Verdict
           upon
           it
           ,
           have
           determin'd
           the
           matter
           of
           Fact
           ,
           that
           the
           Defendant
           is
           guilty
           of
           the
           Offence
           against
           this
           Act
           of
           Parliament
           .
        
         
           The
           Act
           it self
           hath
           pronounc'd
           the
           Judgment
           ,
           which
           consists
           of
           many
           particulars
           ;
           one
           whereof
           is
           ,
           That
           the
           Defendant
           shall
           forfest
           500
           l.
           to
           him
           that
           will
           sue
           for
           it
           .
           And
           the
           Action
           of
           Debt
           for
           the
           500
           l.
           brought
           by
           the
           Plaintiff
           ,
           grounded
           upon
           all
           these
           ,
           is
           in
           the
           nature
           of
           an
           Execution
           .
        
         
           And
           all
           these
           put
           together
           ,
           are
           not
           several
           and
           distinct
           Suits
           ,
           but
           in
           effect
           all
           but
           one
           Suit
           ,
           and
           Process
           ,
           one
           depending
           upon
           the
           other
           .
        
         
           The
           second
           Point
           is
           ,
           Whether
           the
           Dispensation
           pleaded
           by
           the
           Defendant
           ,
           be
           a
           good
           Bar
           to
           the
           Action
           of
           Debt
           ?
           And
           this
           is
           properly
           called
           ,
           The
           Matter
           in
           Law
           ,
           and
           the
           great
           Point
           of
           the
           Case
           ?
           for
           which
           I
           refer
           the
           Reader
           to
           my
           Argument
           at
           large
           .
        
      
       
         
         
           POSTSCRIPT
           :
           BEING
           SOME
           Animadversions
           UPON
           A
           Book
           writ
           by
           Sir
           
             EDW.
             HERBERT
          
           ,
           Lord
           Chief
           Justice
           of
           the
           
             Common
             Pleas
          
           ,
        
         
           ENTITULED
           ,
           A
           short
           Account
           of
           the
           Authorities
           in
           Law
           ,
           upon
           which
           Judgment
           was
           given
           in
           Sir
           Hales's
           Case
           .
        
         
           SINCE
           the
           finishing
           of
           my
           Argument
           about
           the
           Power
           of
           Dispensing
           with
           Paenal
           Statutes
           ,
           a
           Book
           came
           to
           my
           hands
           touching
           the
           same
           subject
           ,
           entituled
           ,
           
             A
             short
             Account
             of
             the
             Authorities
             in
             Law
             ,
             upon
             which
             Judgment
             was
             given
             in
             Sir
          
           Edward
           Hales
           
             his
             Case
          
           ;
           written
           by
           Sir
           
             Edward
             Herbert
          
           ,
           Chief
           Justice
           of
           the
           
             Common
             Pleas
          
           ,
           in
           vindication
           of
           himself
           .
        
         
           And
           although
           I
           am
           of
           opinion
           ,
           that
           the
           substance
           of
           all
           the
           Arguments
           contained
           in
           the
           said
           Book
           ,
           are
           fully
           answered
           in
           my
           aforesaid
           Discourse
           ,
           yet
           I
           hold
           it
           necessary
           to
           make
           some
           Animadversions
           upon
           the
           said
           Book
           ,
           and
           to
           point
           out
           readily
           to
           the
           Reader
           the
           several
           Pages
           of
           my
           Discourse
           ,
           wherein
           the
           Arguments
           of
           the
           Chief
           Justice
           are
           more
           directly
           and
           particularly
           treated
           of
           ,
           and
           answered
           .
        
         
           And
           there
           being
           great
           Reverence
           justly
           due
           to
           a
           Person
           that
           bears
           so
           high
           a
           Character
           ,
           as
           also
           to
           a
           Judgment
           given
           in
           that
           Superiour
           Court
           of
           the
           King's
           Bench
           ,
           and
           by
           advice
           of
           all
           but
           two
           of
           the
           rest
           of
           the
           Judges
           ,
           as
           I
           now
           hear
           ,
           some
           short
           Apology
           had
           need
           be
           used
           for
           that
           freedom
           I
           have
           taken
           to
           animadvert
           upon
           it
           ,
           being
           (
           as
           I
           am
           )
           but
           in
           a
           private
           station
           .
        
         
           In
           short
           therefore
           ,
           I
           have
           not
           undertaken
           it
           out
           of
           any
           vain
           conceit
           of
           my
           own
           Abilities
           ,
           but
           out
           of
           a
           sincere
           desire
           to
           inform
           such
           as
           in
           the
           approaching
           Parliament
           are
           like
           to
           have
           this
           great
           Case
           in
           Judgment
           before
           them
           ;
           and
           some
           may
           possibly
           not
           be
           at
           leisure
           (
           as
           I
           have
           been
           )
           to
           study
           the
           Case
           ,
           the
           matter
           being
           of
           a
           mighty
           importance
           .
        
         
           Nor
           have
           I
           entred
           the
           Lists
           upon
           any
           contentious
           humour
           ,
           or
           taking
           any
           advantage
           of
           the
           late
           Happy
           Change
           of
           publick
           Affairs
           .
           I
           am
           (
           I
           thank
           God
           )
           more
           inclin'd
           to
           commiserate
           the
           Distress
           that
           may
           befal
           any
           persons
           by
           the
           change
           of
           the
           times
           (
           it
           having
           been
           my
           own
           case
           so
           lately
           )
           although
           they
           differ
           from
           me
           in
           Judgment
           or
           Interest
           .
           I
           am
           very
           far
           from
           insulting
           over
           any
           ,
           whatever
           hard
           usage
           I
           my self
           have
           met
           with
           .
           
             
               Nemo
               confidat
               nimiûm
               secundis
               ,
            
             
               Nemo
               desperet
               meliora
               ,
               lapsus
               .
            
          
        
         
         
           My
           Apology
           is
           this
           :
           
             
               1.
               
               I
               was
               engaged
               in
               the
               Argument
               before
               the
               coming
               forth
               of
               this
               Book
               ,
               and
               it
               happening
               into
               my
               hands
               before
               my
               publishing
               of
               my
               Discourse
               ,
               I
               could
               not
               decline
               the
               observing
               something
               upon
               it
               ,
               without
               being
               suspected
               to
               have
               given
               up
               the
               Cause
               .
            
             
               2.
               
               The
               Lord
               Chief
               Justice
               himself
               hath
               by
               his
               Book
               given
               fresh
               occasion
               fairly
               to
               discuss
               the
               point
               again
               ,
               by
               declaring
               that
               he
               expects
               (
               as
               we
               all
               do
               )
               that
               it
               will
               receive
               a
               disquisition
               in
               Parliament
               .
            
             
               3.
               
               And
               as
               the
               Chief
               Justice
               hath
               endeavour'd
               (
               with
               as
               much
               as
               can
               be
               said
               )
               to
               give
               the
               World
               satisfaction
               in
               the
               justice
               and
               right
               of
               the
               Case
               to
               maintain
               the
               Judgment
               given
               ;
               so
               he
               is
               well
               known
               to
               be
               of
               that
               ingenuity
               and
               good
               temper
               and
               candour
               ,
               as
               willing
               to
               receive
               a
               satisfaction
               ,
               if
               any
               further
               Argument
               to
               the
               contrary
               may
               be
               so
               happy
               as
               to
               convince
               him
               .
            
          
        
         
           The
           Chief
           Justice
           Herbert
           ,
           pag.
           6.
           gives
           us
           the
           Definition
           of
           a
           Dispensation
           out
           of
           Sir
           Coke's
           11th
           Report
           ,
           fol.
           88.
           viz.
           
             Dispensatio
             mali
             prohibiti
             est
             de
             jure
             Domino
             Regi
             concessa
             ,
             propter
             impossibilitatem
             praevidendi
             de
             omnibus
             particularibus
             .
          
        
         
           And
           again
           ,
           
             Dispensatio
             est
             mali
             prohibiti
             provida
             relaxacio
             utilitate
             ceu
             necessitate
             pensata
             .
          
        
         
           Upon
           the
           word
           
             (
             Concessa
          
           )
           I
           would
           gladly
           be
           satisfy'd
           when
           or
           by
           whom
           that
           Power
           was
           ever
           granted
           to
           the
           King
           ;
           where
           shall
           we
           find
           that
           Grant
           ?
        
         
           It
           is
           clear
           ,
           that
           whoever
           hath
           the
           entire
           Power
           of
           making
           a
           Law
           ,
           may
           justly
           dispense
           with
           that
           Law.
           And
           therefore
           Almighty
           God
           being
           the
           sole
           and
           supream
           Law-giver
           ,
           might
           dispense
           even
           with
           the
           Moral
           Law
           ;
           as
           he
           did
           with
           the
           sixth
           Commandment
           ,
           when
           he
           commanded
           Abraham
           to
           sacrifice
           his
           Son
           Isaac
           ;
           and
           with
           the
           eighth
           Commandment
           ,
           when
           he
           commanded
           the
           Israelites
           to
           borrow
           the
           Jewels
           of
           the
           Aegyptians
           ,
           and
           to
           go
           away
           without
           restoring
           of
           them
           .
        
         
           But
           it
           stands
           not
           with
           reason
           ,
           that
           he
           who
           hath
           but
           a
           share
           with
           others
           in
           the
           making
           of
           a
           Law
           ,
           (
           as
           the
           King
           hath
           no
           more
           )
           should
           have
           the
           power
           by
           himself
           alone
           to
           dispense
           with
           the
           Law
           ,
           unless
           that
           power
           were
           expresly
           intrusted
           with
           him
           by
           the
           rest
           of
           the
           Law-makers
           (
           as
           sometimes
           hath
           been
           done
           .
           )
        
         
           Sir
           
             Edward
             Coke
          
           in
           his
           seventh
           Report
           ,
           in
           the
           Case
           of
           
             Paenal
             Statates
          
           ,
           fol.
           36.
           towards
           the
           lower
           end
           ,
           does
           affirm
           ,
           that
           this
           Dispensing
           Power
           is
           committed
           to
           the
           King
           
             By
             All
             his
             Subiects
          
           :
           So
           that
           it
           is
           not
           claimed
           
             Jure
             Divino
          
           ,
           but
           by
           Grant
           from
           the
           People
           .
           But
           where
           to
           find
           any
           such
           Grant
           ,
           we
           know
           not
           .
        
         
           I
           have
           (
           as
           I
           conceive
           )
           made
           it
           appear
           in
           my
           larger
           Argument
           ,
           p.
           14.
           that
           the
           first
           Invention
           of
           Dispensations
           with
           Laws
           ,
           began
           by
           the
           Pope
           ,
           about
           the
           time
           of
           Innocent
           the
           Third
           ,
           and
           by
           our
           King
           Henry
           the
           Third
           ,
           in
           imitation
           and
           by
           encouragement
           from
           the
           Pope
           ;
           so
           that
           it
           was
           not
           by
           the
           Grant
           of
           the
           People
           ,
           but
           ever
           exclaimed
           against
           by
           all
           good
           men
           ,
           and
           generally
           by
           all
           the
           people
           ,
           and
           ever
           fenced
           against
           by
           a
           multitude
           of
           Acts
           of
           Parliament
           .
        
         
           It
           is
           true
           ,
           the
           Dispensing
           with
           Laws
           hath
           ever
           since
           been
           practised
           ;
           and
           they
           began
           at
           first
           here
           in
           England
           to
           be
           used
           only
           in
           Cases
           where
           the
           King
           alone
           was
           concern'd
           ,
           in
           Statutes
           made
           for
           his
           own
           profit
           ,
           wherein
           he
           might
           have
           done
           what
           he
           pleas'd
           .
           But
           it
           is
           but
           of
           latter
           times
           that
           they
           have
           been
           stretched
           to
           Cases
           that
           concern
           the
           whole
           Realm
           .
           See
           my
           Argument
           ,
           fol.
           13.
           
           Hence
           it
           evidently
           appears
           ,
           it
           cannot
           be
           a
           legal
           Prerogative
           in
           the
           King
           ;
           for
           that
           must
           ever
           be
           by
           Prescription
           ,
           and
           restrain'd
           to
           those
           Cases
           that
           have
           been
           used
           time
           immemorial
           ,
           and
           must
           not
           be
           extended
           to
           new
           Cases
           .
        
         
           Now
           there
           hath
           been
           no
           such
           usage
           as
           will
           warrant
           the
           Dispensing
           with
           such
           an
           Act
           of
           Parliament
           as
           is
           now
           before
           us
           :
           that
           of
           25
           Car.
           2.
           c.
           2.
           
        
         
           The
           Chief
           Justice
           Herbert
           ,
           from
           the
           Definition
           before
           recited
           ,
           and
           those
           two
           Authorities
           of
           Sir
           
             Edward
             Coke
          
           in
           his
           Case
           of
           Monopolies
           ,
           and
           that
           
           other
           of
           Penal
           Statutes
           ,
           frames
           an
           Argument
           to
           prove
           ,
           that
           the
           Dispensation
           granted
           to
           Sir
           
             Edward
             Hales
          
           ,
           was
           good
           in
           Law.
           
        
         
           Because
           a
           Dispensation
           is
           properly
           and
           only
           in
           case
           of
           a
           
             Malum
             Prohibitum
          
           ,
           he
           thence
           insers
           ,
           that
           the
           King
           can
           dispense
           in
           all
           Cases
           of
           
             Mala
             Prohibita
          
           .
        
         
           Which
           is
           a
           wrong
           Inference
           ,
           and
           that
           which
           Logicians
           call
           ,
           
             Fallacia
             à
             dicto
             secundum
             quid
             ad
             dictum
             simpliciter
             .
          
           Because
           he
           can
           dispense
           with
           some
           ,
           that
           therefore
           he
           can
           dispense
           with
           all
           ,
           is
           no
           good
           Consequence
           .
        
         
           It
           appears
           by
           the
           late
           Chief
           Justice
           Vaughan's
           Reports
           ,
           in
           the
           Case
           of
           Thomas
           and
           Sorrel
           ,
           (
           so
           often
           cited
           by
           the
           Chief
           Justice
           Vaughan's
           Rep.
           fol.
           333.
           the
           fourth
           Paragraph
           ,
           that
           his
           Opinion
           is
           ,
           That
           the
           King
           cannot
           dispense
           with
           every
           
             Malum
             Prohibitum
          
           ;
           and
           he
           gives
           many
           Instances
           of
           such
           
             Mala
             Prohibita
          
           that
           are
           not
           dispensable
           ,
           fol.
           342
           ,
           and
           334.
           parag
           .
           4.
           
        
         
           Therefore
           the
           Lord
           Chief
           Justice
           Herbert
           should
           (
           as
           I
           conceive
           )
           regularly
           first
           have
           given
           us
           the
           distinction
           of
           
             Mala
             Prohibita
          
           ,
           into
           such
           as
           are
           dispensable
           ,
           and
           such
           as
           are
           not
           dispensable
           ;
           and
           then
           have
           shewn
           ,
           that
           the
           Dispensation
           granted
           to
           Sir
           
             Edward
             Hales
          
           ,
           fell
           under
           the
           first
           part
           :
           but
           that
           learned
           Reporter
           ,
           (
           the
           chief
           Justice
           Vaughan
           )
           (
           so
           often
           cited
           by
           our
           now
           Lord
           Chief
           Justice
           )
           in
           the
           aforesaid
           Case
           of
           Thomas
           and
           Sorrell
           ,
           fol.
           332.
           the
           last
           Paragraph
           save
           one
           ,
           quarrels
           with
           the
           very
           distinction
           of
           
             Malum
             Prohibitum
          
           ,
           and
           
             Malum
             in
             se
          
           ,
           and
           says
           it
           is
           confounding
           .
        
         
           From
           whence
           I
           would
           observe
           ,
           and
           from
           the
           whole
           Report
           in
           Thomas
           and
           and
           Sorrell's
           Case
           ,
           that
           the
           Notion
           of
           Dispensation
           is
           as
           yet
           but
           crude
           and
           undigested
           ,
           and
           not
           fully
           shaped
           and
           formed
           by
           the
           Judges
           .
        
         
           The
           Pope
           was
           the
           Inventer
           of
           it
           .
           Our
           Kings
           have
           borrowed
           it
           from
           them
           .
           And
           the
           Judges
           ,
           from
           time
           to
           time
           ,
           have
           nursed
           and
           dressed
           it
           up
           ,
           and
           given
           it
           countenance
           .
           And
           it
           is
           still
           upon
           the
           growth
           and
           encroaching
           ,
           till
           it
           hath
           almost
           subverted
           all
           Law
           ,
           and
           made
           the
           Regal
           Power
           Absolute
           ,
           if
           not
           Dissolute
           .
        
         
           I
           must
           agree
           ,
           that
           our
           Books
           of
           late
           have
           run
           much
           upon
           a
           Distinction
           ,
           viz.
           Where
           the
           breach
           of
           a
           Penal
           Statute
           is
           to
           the
           particular
           damage
           of
           any
           person
           ,
           for
           which
           such
           person
           may
           have
           his
           Action
           against
           the
           Breaker
           of
           that
           Law
           ,
           there
           tho'
           it
           be
           but
           
             Malum
             Prohibitum
          
           ,
           yet
           the
           King
           cannot
           dispense
           with
           that
           Penal
           Law
           ;
           according
           to
           the
           Rule
           in
           Bracton
           :
           
             
               Rex
               non
               potest
               gratiam
               facere
               cum
               injuriâ
               &
               damno
               alterius
               .
            
          
        
         
           As
           for
           instance
           :
           There
           are
           several
           Statutes
           that
           prohibit
           .
           one
           man
           from
           maintaining
           another's
           Suit
           ,
           though
           in
           a
           just
           Cause
           .
           See
           
             Poulton
             de
             pace
             Regis
             &
             Regni
             ,
          
           in
           his
           Chapt.
           of
           Maintenance
           ,
           fol.
           55.
           
        
         
           Now
           it
           is
           held
           ,
           that
           the
           King
           cannot
           dispense
           with
           those
           Laws
           ,
           because
           it
           would
           be
           to
           the
           prejudice
           and
           damage
           of
           that
           particular
           person
           ,
           against
           whom
           the
           Suit
           is
           so
           maintain'd
           by
           another
           :
           for
           there
           can
           be
           no
           maintenance
           ,
           but
           it
           is
           to
           the
           wrong
           of
           a
           particular
           person
           .
        
         
           So
           of
           carrying
           a
           Distress
           out
           of
           the
           Hundred
           .
        
         
           But
           there
           are
           many
           other
           Penal
           Laws
           ,
           where
           by
           the
           transgressing
           of
           them
           ,
           no
           Subject
           can
           have
           any
           particular
           damage
           ,
           and
           therefore
           no
           particular
           Action
           for
           the
           breach
           of
           them
           .
        
         
           As
           upon
           the
           Statute
           that
           prohibits
           the
           Transportation
           of
           Wool
           ,
           under
           a
           Penalty
           .
           By
           the
           breach
           of
           this
           Law
           ,
           that
           is
           ,
           by
           the
           Exportation
           of
           Wool
           ,
           no
           one
           particular
           man
           hath
           any
           damage
           ,
           more
           than
           every
           other
           man
           hath
           ;
           but
           it
           is
           only
           against
           the
           Publick
           Good.
           
        
         
           And
           the
           breach
           of
           such
           a
           Penal
           Law
           is
           punishable
           only
           at
           the
           King's
           Suit
           ,
           by
           Indictment
           or
           Presentment
           .
        
         
           And
           the
           like
           ,
           where
           such
           a
           Penal
           Statute
           gives
           an
           Action
           Popular
           ,
           to
           him
           that
           will
           sue
           for
           the
           Penalty
           ,
           who
           hath
           no
           right
           to
           it
           ,
           more
           than
           any
           other
           ,
           till
           his
           Suit
           be
           commenced
           .
        
         
           In
           these
           Cases
           (
           it
           is
           commonly
           held
           )
           that
           the
           King
           may
           dispense
           with
           such
           Penal
           Statutes
           ,
           as
           to
           some
           particular
           persons
           ,
           and
           for
           some
           limitted
           time
           ,
           (
           whereof
           they
           make
           the
           King
           the
           sole
           Judge
           )
           because
           ,
           as
           the
           reason
           is
           
           given
           in
           the
           Chief
           Justice
           Vaughan's
           Reports
           ,
           fol.
           344.
           parag
           .
           2.
           
           Such
           offence
           wrongs
           none
           but
           the
           King.
           This
           is
           now
           the
           common
           receiv'd
           Opinion
           and
           Distinction
           .
           And
           the
           breach
           of
           such
           kind
           of
           Penal
           Statutes
           ,
           are
           said
           to
           be
           only
           the
           King's
           damage
           in
           his
           publick
           capacity
           ,
           as
           Supream
           Governour
           ,
           and
           wronging
           none
           but
           himself
           .
           Lord
           Vaugh.
           Rep.
           342.
           parag
           .
           3.
           
        
         
           But
           if
           we
           will
           narrowly
           search
           into
           this
           Distinction
           ,
           and
           weigh
           the
           Reasons
           so
           given
           ,
           we
           shall
           find
           it
           is
           without
           any
           just
           ground
           .
        
         
           The
           damage
           done
           to
           the
           particular
           person
           in
           the
           Cases
           past
           ,
           in
           the
           first
           part
           of
           this
           distinction
           ,
           are
           meerly
           his
           own
           proper
           and
           peculiar
           damage
           ;
           and
           he
           is
           intituled
           to
           his
           particular
           Action
           for
           it
           ,
           in
           his
           own
           proper
           personal
           Right
           :
           and
           therefore
           ,
           if
           he
           discharge
           and
           dispense
           with
           them
           ,
           it
           is
           no
           wrong
           to
           any
           other
           man.
           He
           may
           do
           what
           he
           will
           with
           his
           own
           .
        
         
           But
           the
           Cases
           in
           the
           second
           part
           of
           this
           Distinction
           ,
           are
           where
           the
           King
           hath
           a
           right
           to
           the
           Suit
           ,
           and
           the
           offence
           and
           damage
           are
           said
           to
           be
           to
           him
           only
           .
        
         
           But
           are
           they
           so
           (
           as
           the
           former
           )
           in
           his
           own
           personal
           right
           ,
           as
           his
           Lands
           and
           other
           Revenues
           are
           ?
           or
           are
           they
           to
           him
           but
           as
           a
           Trustee
           for
           the
           Publick
           ,
           for
           which
           reason
           he
           is
           called
           
             Creditor
             Poenae
          
           ?
           and
           may
           he
           therefore
           upon
           the
           like
           reason
           ,
           dispense
           with
           them
           ,
           or
           dispose
           of
           them
           ,
           as
           a
           Subject
           may
           do
           with
           his
           own
           particular
           Interests
           ?
        
         
           Again
           ,
           Shall
           a
           publick
           Damage
           and
           Injury
           to
           the
           whole
           Nation
           ,
           be
           more
           dispensable
           by
           the
           King
           ,
           than
           the
           loss
           of
           one
           private
           man
           ?
           
             
               —
               fuit
               haec
               sapientia
               quondam
            
             
               Publica
               privatis
               secernere
               —
            
          
        
         
           And
           therefore
           in
           my
           apprehension
           the
           King
           cannot
           in
           such
           Cases
           of
           Dispensations
           ,
           be
           truly
           said
           to
           wrong
           none
           but
           himself
           ;
           and
           it
           is
           not
           agreeable
           to
           the
           Definition
           before
           given
           ,
           
             Utilitate
             Compensata
          
           ,
           for
           the
           King
           wrongs
           the
           whole
           Realm
           by
           it
           .
           Where
           if
           he
           grants
           a
           Dispensation
           with
           a
           Penal
           Law
           of
           the
           first
           sort
           of
           this
           distinction
           ,
           he
           only
           wrongs
           some
           particular
           persons
           .
        
         
           The
           Cases
           and
           Authorities
           for
           Dispensations
           in
           our
           Books
           that
           were
           granted
           in
           ancient
           times
           ,
           will
           generally
           be
           found
           to
           be
           only
           where
           the
           Penal
           Statutes
           were
           made
           for
           the
           King
           's
           own
           proper
           interest
           and
           benefit
           :
           As
           his
           dispensing
           with
           the
           Statute
           of
           Mortmain
           .
           For
           in
           such
           Cases
           it
           was
           to
           the
           King
           's
           own
           loss
           only
           ,
           in
           Cases
           where
           the
           King
           might
           by
           Law
           have
           given
           away
           his
           Lands
           or
           Services
           .
           So
           the
           King
           may
           in
           his
           Patent
           of
           Grant
           of
           Lands
           ,
           dispense
           with
           the
           Statutes
           that
           require
           there
           shall
           be
           mention
           of
           the
           true
           Values
           of
           them
           .
           And
           by
           a
           Non-obstante
           to
           those
           Statutes
           (
           which
           is
           now
           generally
           
           used
           )
           the
           King
           does
           in
           effect
           declare
           ,
           that
           it
           is
           his
           pleasure
           to
           grant
           those
           Lands
           ,
           whatever
           the
           Value
           of
           them
           be
           more
           or
           less
           :
           and
           the
           Statute
           does
           by
           express
           words
           save
           a
           liberty
           to
           the
           King
           in
           that
           Case
           .
        
         
           The
           King
           is
           not
           a
           Trustee
           for
           others
           in
           such
           Cases
           ,
           nor
           can
           these
           Dispensations
           be
           said
           to
           be
           directly
           to
           the
           damage
           of
           the
           Publick
           .
           And
           such
           Penal
           Laws
           as
           meerly
           concern
           the
           King
           's
           own
           Revenue
           or
           Profit
           ,
           may
           justly
           be
           thought
           to
           be
           intended
           to
           be
           made
           only
           to
           put
           the
           King's
           matters
           into
           an
           ordinary
           method
           and
           course
           ,
           and
           so
           save
           the
           King
           a
           labour
           ,
           as
           the
           Lord
           Hobart
           says
           ;
           and
           so
           prevent
           the
           King
           's
           being
           surpriz'd
           or
           mis-inform'd
           ,
           when
           Patents
           are
           gained
           from
           him
           ,
           and
           not
           design'd
           to
           tye
           the
           King's
           hands
           ,
           or
           to
           restrain
           his
           power
           :
           as
           out
           of
           all
           doubt
           was
           done
           and
           intended
           by
           the
           Law-makers
           in
           our
           Act
           of
           25
           Car.
           2.
           
        
         
           But
           in
           all
           the
           late
           Cases
           and
           Authorities
           which
           we
           meet
           with
           in
           our
           Books
           concerning
           Non-obstante's
           ,
           and
           Dispensations
           ,
           as
           in
           the
           time
           of
           King
           Henry
           the
           Seventh
           ,
           and
           so
           downward
           to
           this
           day
           ,
           we
           shall
           find
           them
           practising
           upon
           such
           Penal
           Statutes
           as
           meerly
           concern
           the
           Publick
           Good
           and
           Benefit
           ,
           and
           the
           Laws
           of
           such
           a
           nature
           ,
           by
           the
           breach
           of
           which
           the
           whole
           Nation
           suffers
           :
           While
           some
           particular
           persons
           ,
           it
           may
           be
           ,
           by
           giving
           a
           large
           Fine
           ,
           or
           a
           yearly
           Sum
           ,
           obtain
           the
           favour
           to
           be
           dispens'd
           with
           and
           exempt
           from
           a
           Penal
           Law
           ,
           while
           all
           others
           continue
           to
           be
           bound
           by
           it
           .
        
         
         
           As
           for
           Example
           :
           Where
           a
           Statute
           forbids
           the
           Exportation
           of
           Wool
           ,
           or
           of
           Cloth
           undyed
           or
           undress'd
           ,
           under
           a
           Penalty
           ;
           such
           a
           Law
           is
           greatly
           for
           the
           Publick
           Good
           ,
           and
           it
           takes
           care
           that
           our
           own
           People
           shall
           have
           Employment
           and
           Maintenance
           .
           Yet
           this
           is
           such
           a
           Law
           ,
           as
           according
           to
           the
           receiv'd
           Distinction
           ,
           the
           King
           may
           dispense
           with
           ,
           there
           being
           no
           particular
           damage
           to
           one
           man
           more
           than
           to
           another
           ,
           by
           breach
           of
           such
           a
           Law
           ,
           although
           it
           be
           a
           mighty
           damage
           to
           the
           whole
           Nation
           :
           For
           by
           such
           a
           Dispensation
           ,
           the
           person
           so
           dispens'd
           with
           to
           Export
           such
           White
           Cloth
           undyed
           ,
           will
           have
           the
           sole
           Trade
           ,
           which
           before
           the
           making
           of
           that
           Penal
           Statute
           ,
           was
           equal
           and
           common
           to
           all
           .
           I
           wish
           the
           House
           of
           Commons
           would
           enquire
           what
           vast
           Riches
           have
           been
           heretofore
           gotten
           by
           such
           as
           have
           obtain'd
           the
           Dispensations
           with
           this
           Penal
           Statute
           ,
           besides
           the
           Sums
           they
           paid
           to
           the
           Crown
           for
           them
           .
           These
           are
           meer
           Monopolies
           .
        
         
           In
           such
           a
           Case
           it
           may
           rightly
           be
           applied
           ,
           That
           
             Sin
             taketh
             occasion
             by
             the
             Law.
          
           It
           had
           been
           better
           for
           the
           Nation
           ,
           that
           such
           Laws
           were
           never
           made
           ,
           being
           no
           better
           observ'd
           :
           for
           here
           again
           the
           Dispensation
           is
           neither
           Utilitate
           ,
           nor
           
             Necessitate
             pensata
          
           .
        
         
           Look
           into
           the
           Case
           of
           Thomas
           and
           Sorrell
           ,
           and
           you
           will
           find
           few
           or
           no
           Cases
           of
           Dispensations
           cited
           out
           of
           our
           Books
           ,
           but
           of
           the
           time
           of
           King
           Henry
           the
           Seventh
           ,
           and
           much
           more
           of
           very
           late
           times
           :
           so
           that
           the
           ill
           practice
           is
           still
           improving
           and
           stretching
           .
        
         
           The
           Lord
           Chief
           Justice
           Herbert
           ,
           in
           the
           next
           place
           ,
           pag.
           9.
           proceeds
           to
           mention
           the
           great
           Case
           of
           2
           Hen.
           7.
           a
           Resolution
           of
           all
           the
           Judges
           in
           the
           Exchequer-Chamber
           ,
           upon
           the
           King
           's
           dispensing
           with
           the
           Statute
           of
           23
           H.
           6.
           cap.
           8.
           
           
             That
             no
             man
             should
             be
             a
             Sheriff
             above
             one
             year
             .
          
           This
           is
           the
           great
           Leading
           Case
           and
           Authority
           ,
           upon
           which
           the
           main
           stress
           is
           laid
           to
           justifie
           the
           Judgment
           given
           in
           Sir
           
             Edward
             Hales
          
           his
           Case
           .
        
         
           I
           would
           avoid
           repeating
           what
           I
           have
           already
           so
           largely
           said
           to
           this
           Authority
           ,
           to
           which
           I
           must
           refer
           my
           Reader
           ,
           by
           which
           I
           hope
           it
           is
           most
           evidently
           made
           out
           ,
           that
           the
           King
           neither
           hath
           ,
           nor
           never
           had
           any
           just
           Right
           or
           Power
           to
           elect
           Sheriffs
           :
           But
           the
           right
           of
           Electing
           was
           anciently
           and
           originally
           belonging
           to
           the
           Freeholders
           of
           the
           several
           Counties
           ;
           and
           since
           it
           was
           unjustly
           taken
           from
           them
           (
           as
           they
           have
           ever
           been
           on
           the
           losing
           hand
           )
           it
           hath
           been
           lodged
           in
           the
           great
           Officers
           of
           the
           Realm
           ,
           as
           the
           Lord
           Chancellor
           ,
           Lord
           Treasurer
           ,
           Lord
           Privy-Seal
           ,
           and
           the
           Judges
           ,
           &c.
           as
           appears
           by
           the
           several
           Statutes
           .
        
         
           And
           they
           are
           to
           make
           such
           Choice
           every
           year
           in
           the
           Exchequer
           ,
           on
           a
           day
           appointed
           by
           the
           Statute
           for
           that
           purpose
           .
           So
           that
           the
           Sheriffs
           are
           by
           those
           Statutes
           to
           continue
           in
           their
           Offices
           for
           one
           year
           only
           .
           And
           the
           King
           cannot
           hinder
           such
           Election
           .
        
         
           Only
           by
           his
           Patent
           or
           Commission
           to
           the
           Sheriff
           ,
           hath
           he
           used
           to
           signifie
           to
           the
           Sheriff
           himself
           that
           is
           so
           chosen
           ,
           and
           to
           publish
           to
           all
           others
           ,
           who
           the
           person
           is
           that
           is
           so
           chosen
           .
           This
           is
           all
           the
           use
           of
           the
           Patent
           ;
           but
           it
           is
           the
           proper
           Election
           of
           those
           great
           Officers
           that
           truly
           vests
           them
           in
           their
           Office
           .
        
         
           And
           it
           does
           as
           clearly
           appear
           ,
           that
           when
           former
           Kings
           have
           dispens'd
           with
           a
           Sheriffs
           continuing
           in
           his
           Office
           for
           longer
           than
           one
           year
           ,
           contrary
           to
           the
           several
           Statutes
           so
           forbidding
           it
           ,
           the
           King
           hath
           so
           done
           it
           by
           virtue
           (
           not
           of
           his
           Prerogative
           )
           but
           by
           a
           special
           Act
           of
           Parliament
           enabling
           him
           to
           do
           it
           ,
           for
           some
           extraordinary
           occasions
           ,
           and
           for
           some
           limitted
           time
           only
           .
           See
           for
           this
           the
           Statute
           of
           9
           Hen.
           5.
           cap.
           5.
           in
           the
           Statutes
           at
           large
           ,
           and
           my
           larger
           Argument
           ,
           fol.
           34.
           
        
         
           The
           truth
           is
           ,
           the
           Power
           of
           Dispensing
           is
           originally
           in
           the
           Legislators
           .
           He
           only
           can
           dispense
           with
           a
           Law
           ,
           that
           can
           make
           a
           Law.
           The
           Power
           is
           equal
           ;
           and
           the
           Legislators
           can
           confer
           the
           same
           Power
           upon
           the
           King
           or
           any
           others
           ,
           for
           some
           convenient
           time
           ,
           &c.
           as
           appears
           by
           the
           last
           Instance
           of
           the
           Sheriff
           ,
           and
           divers
           other
           like
           Cases
           ,
           mentioned
           in
           my
           foregoing
           Argument
           ,
           where
           I
           have
           also
           observ'd
           many
           other
           things
           upon
           that
           Resolution
           of
           2
           H.
           7.
           concerning
           Sheriffs
           .
        
         
         
           The
           Chief
           Justice
           Herbert
           supposes
           the
           Mischiefs
           recited
           in
           the
           Preamble
           of
           that
           Statute
           of
           23
           Hen.
           6.
           cap.
           8.
           concerning
           Sheriffs
           continuing
           in
           their
           Offices
           longer
           than
           one
           year
           ,
           to
           be
           equal
           ,
           if
           not
           greater
           (
           as
           he
           judges
           )
           than
           the
           Mischiefs
           recited
           in
           the
           Statute
           of
           25
           Car.
           2.
           by
           Papists
           being
           in
           Offices
           .
           And
           from
           thence
           ,
           I
           presume
           ,
           would
           infer
           ,
           that
           the
           Case
           of
           Sir
           
             Edward
             Hales
          
           is
           not
           so
           fatal
           in
           the
           consequence
           ,
           as
           the
           Case
           of
           a
           Sheriff
           .
        
         
           I
           may
           appeal
           to
           any
           ordinary
           Judgment
           ,
           and
           to
           the
           sad
           Experience
           and
           Tryal
           we
           have
           so
           lately
           had
           ,
           and
           to
           the
           desperate
           Danger
           we
           were
           so
           lately
           in
           (
           from
           which
           Almighty
           God
           ,
           by
           no
           less
           than
           a
           Miracle
           hath
           in
           great
           mercy
           deliver'd
           the
           Nation
           )
           whether
           the
           Mischiefs
           that
           could
           any
           way
           possibly
           arise
           from
           the
           dispensing
           with
           the
           former
           ,
           (
           I
           mean
           ,
           th●
           Statute
           concerning
           Sheriffs
           )
           be
           comparable
           to
           the
           infinite
           Mischiefs
           arising
           from
           putting
           Papists
           into
           Office
           ,
           and
           intrusting
           them
           with
           our
           Religion
           ,
           and
           all
           our
           Civil
           Rights
           .
        
         
           The
           Chief
           Justice
           ,
           upon
           those
           words
           of
           the
           Statute
           concerning
           Sheriffs
           ,
           
             viz.
             That
             no
             Non-obstante
             shall
             make
             them
             good
             ,
          
           infers
           ,
           that
           those
           words
           do
           shew
           ,
           that
           the
           Parliament
           which
           made
           that
           Act
           concerning
           Sheriffs
           ,
           was
           of
           opinion
           ,
           
           that
           had
           it
           not
           been
           for
           that
           Clause
           ,
           the
           King
           could
           otherwise
           have
           dispens'd
           with
           that
           Act
           by
           a
           Non-obstante
           .
        
         
           Answ.
           This
           to
           me
           seems
           a
           strained
           Inference
           ,
           and
           that
           it
           is
           very
           far
           from
           shewing
           any
           such
           Opinion
           in
           that
           Parliament
           .
           It
           rather
           signifies
           ,
           that
           had
           not
           the
           Parliament
           inserted
           that
           Clause
           into
           the
           Act
           ,
           the
           King
           might
           have
           done
           again
           as
           he
           had
           frequently
           practis'd
           before
           ,
           viz.
           granted
           Dispensations
           upon
           that
           Statute
           :
           which
           ill
           practice
           they
           endeavour'd
           to
           prevent
           for
           the
           future
           ,
           not
           approving
           the
           practice
           ,
           nor
           owning
           the
           power
           of
           doing
           it
           .
           
             Ex
             malis
             moribus
             bonae
             oriuntur
             Leges
             .
          
           A
           good
           Law
           rather
           condemns
           a
           contrary
           practice
           before
           used
           .
        
         
           I
           heartily
           desire
           my
           Reader
           (
           as
           I
           have
           done
           in
           my
           foregoing
           larger
           Argument
           )
           carefully
           to
           observe
           and
           examine
           of
           what
           sort
           and
           nature
           those
           several
           Cases
           are
           ,
           which
           the
           Resolution
           of
           the
           Case
           of
           2
           Hen.
           7.
           urges
           to
           warrant
           that
           Resolution
           .
           As
           those
           Cases
           concerning
           the
           true
           Value
           of
           Lands
           ,
           which
           the
           King
           grants
           ;
           and
           that
           concerning
           the
           shipping
           of
           Wool
           to
           a
           certain
           Staple
           ,
           &c.
           and
           let
           the
           Reader
           judge
           how
           vast
           a
           difference
           there
           is
           between
           those
           Statutes
           in
           the
           nature
           ,
           and
           import
           ,
           and
           reason
           of
           them
           ,
           and
           this
           weighty
           important
           Statute
           now
           before
           us
           ;
           and
           how
           little
           that
           Resolution
           of
           2
           H.
           7.
           can
           be
           warranted
           by
           the
           Cases
           there
           cited
           ,
           being
           of
           so
           inferiour
           and
           minute
           a
           Consideration
           ,
           in
           comparison
           of
           the
           principal
           Case
           .
        
         
           It
           is
           true
           ,
           Sir
           
             Edward
             Coke
          
           (
           if
           the
           twelfth
           Report
           ,
           which
           goes
           by
           his
           name
           ,
           be
           truly
           his
           )
           hath
           since
           that
           Resolution
           given
           in
           2
           Hen.
           7.
           found
           out
           new
           and
           different
           Reasons
           and
           Arguments
           ,
           which
           are
           not
           urged
           ,
           and
           therefore
           I
           presume
           never
           so
           much
           as
           thought
           on
           ,
           at
           that
           time
           ,
           by
           the
           twelve
           Judges
           who
           gave
           the
           Resolution
           in
           that
           Case
           of
           2
           Hen.
           7.
           
        
         
           Thus
           says
           Sir
           
             E.
             Saundys
          
           ,
           in
           his
           Relation
           of
           the
           Religion
           used
           in
           the
           West
           parts
           of
           the
           World
           :
           Those
           of
           the
           Roman
           Religion
           made
           their
           Greatness
           ,
           Wealth
           ,
           and
           Honour
           ,
           to
           be
           the
           very
           Rule
           by
           which
           to
           square
           out
           the
           Canons
           of
           their
           Faith
           ;
           and
           then
           did
           set
           Clerks
           on
           work
           to
           devise
           Arguments
           to
           maintain
           them
           .
        
         
           Sir
           
             Edward
             Coke
          
           seems
           to
           justifie
           that
           Resolution
           concerning
           Sheriffs
           ,
           from
           this
           ground
           ,
           
             viz.
             That
             the
             King
             hath
             a
             Soveraign
             Power
             to
             command
             any
             of
             his
             Subjects
             to
             serve
             him
             for
             the
             Publick
             Weal
             .
             And
             this
             is
          
           (
           says
           he
           )
           
             solely
             and
             inseparably
             annexed
             to
             his
             Person
             ,
             and
             that
             this
             Royal
             Power
             cannot
             be
             restrain'd
             by
             any
             Act
             of
             Parliament
             .
          
           12
           Rep.
           fol.
           18.
           
        
         
           That
           it
           is
           not
           solely
           annex'd
           to
           the
           King's
           person
           ,
           appears
           by
           the
           several
           Acts
           of
           Parliament
           which
           I
           have
           cited
           to
           this
           purpose
           in
           my
           larger
           Argument
           ,
           fol.
           34.
           where
           the
           Power
           of
           Dispensing
           with
           some
           particular
           Acts
           ,
           was
           given
           to
           the
           King
           by
           the
           Parliament
           ,
           and
           by
           him
           accepted
           for
           some
           short
           time
           .
           And
           the
           whole
           Parliament
           have
           in
           divers
           Cases
           themselves
           exercis'd
           this
           very
           Power
           .
        
         
           Judge
           of
           the
           weight
           of
           the
           Reasons
           said
           to
           be
           given
           there
           by
           Sir
           
             Edward
             Coke
          
           ,
           by
           that
           one
           Instance
           of
           his
           in
           the
           Case
           he
           puts
           of
           Purveyance
           ,
           12
           Rep.
           
           fol.
           19.
           which
           (
           he
           says
           )
           cannot
           be
           taken
           from
           the
           King
           ,
           no
           not
           by
           Act
           of
           Parliament
           .
        
         
           Yet
           we
           have
           lived
           to
           see
           it
           lately
           taken
           away
           by
           Act
           of
           Parliament
           ;
           which
           in
           the
           Judgment
           of
           a
           Parliament
           (
           which
           is
           of
           the
           highest
           Authority
           in
           Law
           )
           may
           therefore
           be
           taken
           from
           the
           King.
           
        
         
           And
           is
           the
           King
           in
           truth
           restrain'd
           from
           commanding
           his
           Subjects
           to
           serve
           him
           for
           the
           Publick
           Weal
           ,
           either
           by
           those
           Statutes
           that
           disable
           Sheriffs
           to
           continue
           in
           their
           Offices
           longer
           than
           one
           year
           ,
           or
           by
           our
           Statute
           of
           25
           Car.
           2.
           that
           disables
           Popish
           Recusants
           to
           bear
           publick
           Offices
           :
           Because
           some
           very
           unfit
           ,
           uncapable
           ,
           and
           dangerous
           persons
           are
           disabled
           to
           bear
           Offices
           of
           Trust
           and
           Power
           ,
           (
           and
           this
           by
           the
           King
           's
           own
           consent
           to
           the
           Act
           ,
           and
           by
           the
           advice
           of
           the
           great
           Council
           the
           Parliament
           )
           and
           indeed
           of
           the
           whole
           Realm
           ?
        
         
           Does
           the
           King
           by
           this
           (
           which
           the
           Judges
           mis-call
           a
           Restraint
           )
           want
           for
           choice
           of
           fit
           persons
           to
           serve
           in
           Offices
           ?
           Doth
           the
           Publick
           Weal
           suffer
           by
           this
           Restraint
           ?
           is
           it
           not
           rather
           preserv'd
           by
           it
           ?
           Hath
           not
           the
           King
           Protestant
           Subjects
           enow
           to
           bear
           Offices
           ?
           And
           are
           Popish
           Recusants
           (
           who
           account
           Protestants
           Hereticks
           ,
           and
           to
           be
           rooted
           out
           and
           destroy'd
           ,
           and
           with
           whom
           they
           hold
           no
           Faith
           is
           to
           be
           kept
           ,
           and
           against
           whom
           they
           have
           been
           continually
           plotting
           Mischief
           )
           are
           these
           the
           fittest
           to
           be
           intrusted
           with
           the
           Defence
           of
           the
           Protestant
           Religion
           ,
           and
           with
           our
           Lives
           and
           Estates
           ,
           which
           are
           all
           concern'd
           ,
           more
           or
           less
           ,
           in
           every
           Publick
           Office
           and
           Trust
           ?
        
         
           And
           are
           those
           persons
           (
           the
           Papists
           )
           that
           have
           a
           dependance
           upon
           the
           See
           of
           Rome
           ,
           and
           a
           Forreign
           Power
           ,
           fit
           to
           be
           intrusted
           with
           the
           power
           of
           the
           Nation
           ,
           with
           the
           Militia
           ,
           and
           the
           Sea-Ports
           ?
        
         
           Is
           not
           this
           to
           commit
           the
           Lamb
           to
           the
           custody
           of
           the
           Wolf
           ?
        
         
           This
           Act
           that
           disables
           Papists
           to
           bear
           Offices
           ,
           cannot
           be
           justly
           said
           to
           be
           a
           Restraint
           upon
           the
           King
           ;
           that
           expression
           sounds
           ill
           ,
           and
           takes
           the
           matter
           by
           the
           wrong
           handle
           .
           It
           rather
           imports
           the
           King's
           Declaration
           and
           Resolution
           ,
           by
           advice
           of
           his
           great
           Council
           ,
           to
           employ
           none
           in
           Offices
           and
           Places
           of
           Trust
           ,
           but
           such
           as
           are
           most
           capable
           and
           fit
           ,
           and
           will
           most
           faithfully
           answer
           the
           great
           Ends
           for
           which
           they
           are
           so
           intrusted
           ,
           that
           is
           ,
           the
           preservation
           of
           the
           Protestant
           Religion
           ,
           which
           is
           the
           true
           English
           Interest
           .
        
         
           And
           this
           agrees
           with
           the
           Rules
           of
           the
           Common
           Law
           ,
           That
           if
           an
           Office
           be
           granted
           to
           one
           that
           is
           Inidoneus
           ,
           the
           Grant
           is
           void
           ,
           though
           granted
           by
           the
           King
           himself
           .
           Of
           this
           I
           have
           treated
           more
           largely
           ,
           in
           my
           Argument
           ,
           fol.
           37.
           
        
         
           The
           Lord
           Chief
           Justice
           Herbert
           ,
           pag.
           16.
           asks
           the
           Question
           ,
           Whether
           so
           many
           solemn
           Resolutions
           of
           all
           the
           Judges
           of
           England
           in
           the
           Exchequer-Chamber
           ,
           are
           not
           to
           be
           rely'd
           upon
           for
           Law
           ?
           And
           I
           answer
           ,
           That
           if
           they
           were
           ten
           times
           as
           many
           more
           ,
           yet
           they
           are
           not
           to
           be
           rely'd
           on
           against
           many
           express
           positive
           Acts
           of
           Parliament
           directly
           to
           the
           contrary
           .
           For
           what
           words
           could
           the
           Parliament
           use
           more
           emphatical
           and
           express
           ,
           and
           more
           to
           the
           purpose
           ,
           than
           by
           saying
           ,
           That
           a
           Non-obstante
           ,
           or
           a
           Dispensation
           ,
           or
           a
           Grant
           of
           such
           a
           thing
           ,
           (
           prohibited
           by
           that
           Law
           )
           shall
           be
           absolutely
           void
           ,
           and
           
             ipso
             facto
          
           adjudged
           void
           ,
           and
           the
           person
           made
           uncapable
           to
           take
           ?
           And
           is
           not
           a
           Judgment
           in
           Parliament
           ,
           and
           by
           Act
           of
           Parliament
           ,
           of
           the
           highest
           Authority
           ?
        
         
           But
           (
           says
           the
           Chief
           Justice
           ,
           fol.
           16.
           )
           the
           constant
           practice
           hath
           been
           to
           dispense
           with
           the
           Statute
           of
           Sheriffs
           .
           I
           answer
           ,
           It
           hath
           also
           been
           a
           very
           frequent
           practice
           too
           for
           the
           King
           ,
           to
           make
           such
           persons
           Sheriffs
           ,
           as
           were
           none
           of
           the
           number
           nominated
           or
           chosen
           ,
           as
           aforesaid
           ,
           by
           the
           Chancellor
           ,
           Treasurer
           ,
           Judges
           ,
           and
           other
           great
           Officers
           ;
           and
           it
           passes
           for
           currant
           that
           he
           may
           so
           do
           ,
           though
           it
           be
           a
           vulgar
           Errour
           :
           For
           it
           hath
           been
           resolv'd
           by
           all
           the
           twelve
           Judges
           ,
           to
           be
           an
           Errour
           in
           the
           King.
           See
           Sir
           Coke's
           2
           Instit.
           or
           
             Magna
             Charta
          
           ,
           fol.
           559.
           and
           yet
           it
           is
           practis'd
           to
           this
           very
           day
           .
        
         
           The
           Chief
           Justice
           ,
           pag.
           18.
           seems
           to
           excuse
           Popish
           Recusants
           ,
           for
           not
           qualifying
           themselves
           for
           Offices
           ,
           by
           taking
           the
           Oaths
           and
           the
           Test
           ,
           &c.
           for
           that
           no
           man
           (
           says
           he
           )
           hath
           it
           in
           his
           power
           to
           change
           his
           opinion
           in
           Religion
           as
           he
           pleaseth
           ,
           and
           therefore
           it
           is
           not
           their
           fault
           .
           It
           is
           an
           Errour
           of
           the
           mind
           ,
           &c.
           
        
         
         
           Answ.
           Here
           is
           no
           occasion
           taken
           to
           find
           fault
           with
           them
           for
           their
           Opinion
           ;
           let
           them
           keep
           their
           Religion
           still
           ,
           if
           they
           like
           it
           so
           well
           ,
           who
           hinders
           them
           ?
           This
           Act
           of
           25
           Car.
           2.
           imposes
           no
           Penalty
           upon
           them
           for
           their
           Opinion
           .
           But
           is
           there
           any
           necessity
           of
           their
           being
           in
           Offices
           ?
           Must
           they
           needs
           be
           Guardians
           of
           the
           Protestant
           Religion
           ?
           The
           Penalty
           upon
           them
           by
           this
           Act
           ,
           is
           not
           for
           their
           Opinion
           ,
           but
           for
           their
           presuming
           to
           undertake
           Offices
           and
           Trusts
           ,
           for
           which
           they
           are
           by
           King
           and
           Parliament
           adjudg'd
           and
           declar'd
           unfit
           .
        
         
           Page
           20
           ,
           &
           21.
           
           The
           Chief
           Justice
           Vaughan
           is
           brought
           in
           ,
           arguing
           for
           the
           Kings
           Power
           of
           Dispensing
           with
           
             (
             Nominal
          
           )
           Nusances
           ,
           (
           as
           he
           is
           pleas'd
           to
           call
           and
           distinguish
           Nusances
           )
           .
           The
           word
           
             (
             Nominal
          
           )
           (
           as
           there
           understood
           )
           imports
           ,
           that
           though
           a
           Parliament
           declares
           any
           thing
           to
           be
           a
           Nusance
           ,
           (
           as
           sometimes
           they
           do
           in
           Acts
           of
           Parliament
           ,
           to
           render
           them
           indispensable
           )
           which
           yet
           in
           its
           proper
           nature
           would
           not
           otherwise
           be
           so
           conceiv'd
           to
           be
           ;
           that
           such
           a
           Nominal
           Nusance
           (
           as
           he
           holds
           )
           may
           however
           be
           dispens'd
           with
           by
           the
           King
           ,
           though
           regularly
           by
           Law
           the
           King
           may
           not
           dispense
           with
           any
           Nusance
           .
        
         
           Answ.
           Shall
           any
           single
           or
           particular
           person
           ,
           though
           a
           Chief
           Justice
           ,
           presume
           to
           call
           that
           a
           meer
           
             Nominal
             Nusance
          
           ,
           which
           a
           Parliament
           by
           a
           solemn
           Act
           and
           Law
           have
           adjudg'd
           and
           declar'd
           to
           be
           a
           real
           Nusance
           ?
           Are
           we
           not
           all
           concluded
           by
           what
           a
           Law
           says
           ?
           This
           Arrogance
           is
           the
           Mischief
           now
           complain'd
           of
           .
        
         
           The
           Chief
           Justice
           Herbert
           ,
           pag.
           22.
           at
           the
           lower
           end
           ,
           says
           ,
           That
           from
           the
           abuse
           of
           a
           thing
           ,
           an
           Argument
           cannot
           be
           drawn
           against
           the
           thing
           it self
           .
           I
           agree
           this
           is
           regularly
           true
           ;
           yet
           we
           have
           an
           Instance
           to
           the
           contrary
           in
           the
           Scripture
           ,
           in
           that
           point
           of
           the
           
             Brazen
             Serpent
          
           .
           But
           in
           our
           Case
           the
           abuse
           doth
           arise
           from
           the
           very
           nature
           of
           the
           thing
           it self
           ,
           from
           the
           constitution
           of
           it
           .
        
         
           For
           the
           King
           practises
           no
           more
           in
           dispensing
           ,
           than
           what
           these
           Resolutions
           of
           the
           Judges
           allow
           him
           to
           do
           by
           this
           pretended
           Prerogative
           .
           The
           Errour
           is
           in
           the
           Foundation
           .
        
         
           They
           have
           made
           his
           Power
           to
           be
           unlimitted
           ,
           either
           as
           to
           number
           of
           persons
           ,
           or
           as
           to
           the
           time
           how
           long
           the
           Dispensation
           shall
           continue
           .
           Sir
           
             Edward
             Coke
          
           says
           ,
           and
           so
           the
           other
           Books
           ,
           That
           the
           King
           is
           the
           sole
           Judge
           of
           these
           .
           
             
               Nec
               Metas
               Rerum
               ,
               nec
               Tempora
               Ponunt
               .
            
          
        
         
           The
           Chief
           Justice
           Herbert
           ,
           fol.
           24.
           cites
           two
           clear
           Concessions
           (
           as
           he
           is
           pleas'd
           to
           call
           them
           )
           of
           all
           the
           Commons
           of
           England
           in
           Parliament
           ,
           which
           he
           esteems
           much
           greater
           Authorities
           than
           the
           several
           Resolutions
           of
           all
           the
           twelve
           Judges
           .
        
         
           But
           how
           far
           these
           are
           from
           Concessions
           ,
           will
           easily
           appear
           to
           an
           indifferent
           Reader
           .
           They
           are
           no
           more
           than
           prudent
           and
           patient
           avoiding
           of
           Disputes
           with
           the
           several
           Kings
           .
           And
           there
           are
           multitudes
           of
           the
           like
           in
           the
           old
           Parliament-Rolls
           .
        
         
           It
           is
           but
           an
           humble
           clearing
           of
           themselves
           from
           any
           purpose
           in
           general
           ,
           to
           abridge
           the
           King
           of
           any
           of
           his
           Prerogatives
           ,
           (
           which
           have
           always
           been
           touchy
           and
           tender
           things
           ;
           )
           but
           it
           is
           no
           clear
           nor
           direct
           allowance
           of
           that
           dispensing
           there
           mention'd
           ,
           to
           be
           any
           such
           Prerogative
           in
           him
           .
        
         
           However
           ,
           I
           am
           glad
           to
           see
           an
           House
           of
           Commons
           to
           be
           in
           so
           great
           request
           with
           the
           Judges
           .
           It
           will
           be
           so
           at
           some
           times
           ,
           more
           than
           at
           others
           .
        
         
           Yet
           I
           do
           not
           remember
           ,
           that
           in
           any
           Argument
           I
           have
           hitherto
           met
           with
           a
           Vote●
           or
           Order
           ,
           or
           Opinion
           of
           the
           House
           of
           Commons
           ,
           hath
           been
           cited
           for
           an
           Authority
           in
           Law
           ,
           before
           now
           .
           Will
           the
           House
           of
           Peers
           allow
           of
           this
           Authority
           for
           Law
           ?
        
         
           It
           will
           be
           said
           ,
           That
           this
           is
           but
           the
           acknowledgment
           of
           Parties
           concern'd
           in
           Interest
           ;
           which
           is
           allowed
           for
           a
           good
           Testimony
           and
           strongest
           against
           themselves
           .
        
         
         
           Answ.
           I
           do
           not
           like
           to
           have
           the
           King
           and
           his
           People
           to
           have
           divided
           Interests
           .
           Prerogative
           and
           the
           Peoples
           Liberties
           ,
           should
           not
           be
           look'd
           upon
           as
           Opposites
           .
           The
           Prerogative
           is
           given
           by
           Law
           to
           the
           King
           ,
           the
           better
           to
           enable
           him
           to
           protect
           and
           preserve
           the
           Subjects
           Rights
           .
           Therefore
           it
           truly
           concerns
           the
           People
           to
           maintain
           Prerogative
           .
        
         
           I
           could
           cite
           several
           Parliament-Records
           wherein
           the
           poor
           House
           of
           Commons
           have
           been
           forced
           to
           submit
           themselves
           ,
           and
           humbly
           beg
           pardon
           of
           the
           King
           ,
           for
           doing
           no
           more
           than
           their
           Duty
           ,
           meerly
           to
           avert
           his
           displeasure
           .
           See
           the
           Case
           of
           Sir
           
             Thomas
             Haxey
          
           ,
           whom
           the
           King
           adjudg'd
           a
           Traytor
           ,
           for
           exhibiting
           a
           Bill
           to
           the
           Commons
           for
           the
           avoiding
           of
           the
           outrageous
           Expences
           of
           the
           King's
           House
           20
           R.
           2.
           num
           .
           14
           ,
           15
           ,
           16
           ,
           17
           ,
           and
           23.
           and
           the
           Commons
           were
           driven
           to
           discover
           his
           Name
           to
           the
           King
           ,
           and
           the
           whole
           House
           in
           a
           mournful
           manner
           craving
           pardon
           for
           their
           entertaining
           of
           that
           Bill
           .
        
         
           No
           doubt
           ,
           as
           good
           an
           Authority
           against
           the
           Commons
           for
           so
           sawcily
           medling
           in
           a
           matter
           so
           sacred
           ,
           and
           so
           far
           above
           them
           .
           Yet
           afterwards
           ,
           1
           Hen.
           4.
           num
           .
           91.
           that
           Judgment
           against
           Sir
           
             Thomas
             Haxey
          
           was
           revers'd
           .
        
         
           As
           for
           the
           distinction
           ,
           pag.
           30.
           of
           a
           Disability
           actually
           incuri'd
           before
           the
           medling
           in
           an
           Office
           ,
           and
           where
           the
           Disability
           is
           prevented
           by
           the
           coming
           of
           a
           Dispensation
           ;
           I
           answer
           ,
           That
           its
           being
           so
           prevented
           ,
           is
           but
           
             Peticio
             Principii
          
           ,
           and
           a
           begging
           of
           the
           Question
           .
           And
           to
           this
           Distinction
           I
           have
           (
           I
           think
           )
           fully
           spoken
           in
           the
           foregoing
           Argument
           ,
           fol.
           40.
           
        
         
           The
           late
           Parliament
           ,
           in
           making
           this
           Act
           of
           25
           Car.
           2.
           had
           ,
           no
           doubt
           ,
           a
           prospect
           that
           probably
           the
           Crown
           would
           discend
           upon
           a
           Popish
           Successor
           ;
           and
           they
           levelled
           this
           Act
           against
           the
           Dangers
           that
           might
           then
           befal
           our
           Religion
           and
           Liberties
           ,
           and
           they
           thought
           it
           a
           good
           Security
           :
           But
           it
           is
           all
           vanished
           and
           come
           to
           nothing
           ,
           by
           occasion
           of
           this
           Judgment
           in
           the
           Case
           of
           Sir
           
             Edward
             Hales
          
           .
           And
           that
           must
           be
           justified
           by
           a
           
             (
             Fiat
             Justitia
             .
          
           )
        
         
           As
           to
           the
           Objection
           that
           the
           Chief
           Justice
           fancies
           might
           have
           been
           made
           against
           him
           ,
           or
           advice
           given
           him
           that
           he
           should
           rather
           have
           parted
           with
           his
           place
           ,
           than
           to
           have
           given
           a
           Judgment
           so
           prejudicial
           to
           the
           Religion
           he
           professes
           ,
           pag.
           33.
           
        
         
           This
           ,
           I
           say
           ,
           that
           for
           my
           part
           I
           should
           never
           have
           advis'd
           him
           to
           have
           parted
           with
           his
           Place
           ,
           much
           less
           to
           have
           given
           a
           Judgment
           against
           his
           own
           Opinion
           .
           But
           let
           his
           Opinion
           be
           what
           it
           was
           ,
           yet
           seeing
           the
           clear
           intention
           of
           the
           Makers
           of
           the
           Law
           ,
           contrary
           to
           that
           his
           Opinion
           ,
           and
           knowing
           the
           desperate
           effects
           and
           consequences
           that
           would
           follow
           upon
           dispensing
           with
           that
           Act
           ,
           (
           for
           we
           were
           upon
           the
           brink
           of
           destruction
           by
           it
           )
           and
           taking
           notice
           (
           as
           this
           Chief
           Justice
           and
           the
           rest
           of
           the
           Judges
           needs
           must
           )
           that
           the
           King
           had
           first
           endeavour'd
           to
           have
           gain'd
           a
           Dispensing
           Power
           in
           thismatter
           from
           both
           Houses
           (
           which
           was
           the
           fair
           and
           legal
           course
           )
           and
           that
           yet
           that
           very
           Parliament
           which
           out
           of
           too
           great
           a
           compliance
           with
           those
           times
           ,
           had
           over-look'd
           so
           many
           Grievances
           ,
           and
           conniv'd
           at
           the
           King
           's
           taking
           and
           collecting
           of
           the
           Customs
           ,
           (
           though
           in
           truth
           the
           Collectors
           ,
           and
           all
           that
           had
           any
           hand
           in
           the
           receiving
           of
           them
           ,
           incurr'd
           a
           Praemunire
           by
           it
           )
           not
           to
           mention
           the
           ill
           Artifice
           used
           in
           gaining
           the
           Excise
           ,
           yet
           that
           Parliament
           of
           the
           King
           's
           ,
           boggled
           at
           the
           Dispensing
           with
           the
           Act
           of
           25
           Car
           2.
           knowing
           the
           mighty
           Importance
           of
           it
           .
        
         
           And
           though
           they
           could
           not
           but
           take
           notice
           that
           so
           many
           Judges
           at
           once
           had
           been
           remov'd
           ,
           because
           they
           could
           not
           swallow
           this
           
             Bitter
             Pill
          
           ,
           and
           others
           brought
           into
           their
           places
           ,
           as
           might
           be
           justly
           suspected
           to
           serve
           a
           Turn
           ,
           and
           the
           King
           's
           Learned
           Councel
           could
           not
           at
           first
           find
           out
           this
           Prerogative
           to
           do
           his
           work
           with
           ,
           till
           so
           many
           ways
           had
           been
           attempted
           ,
           and
           all
           proved
           ineffectual
           ;
           sure
           in
           such
           circumstances
           it
           had
           been
           Prudence
           ,
           nay
           the
           Duty
           of
           the
           Judges
           ,
           to
           have
           referr'd
           the
           determination
           of
           it
           to
           a
           Parliament
           ;
           and
           the
           rather
           ,
           because
           it
           was
           to
           expound
           a
           Law
           newly
           made
           ,
           and
           the
           consequences
           so
           dreadful
           ,
           and
           the
           intent
           of
           the
           Law-makers
           so
           evident
           .
        
         
           And
           this
           hath
           been
           frequently
           practis'd
           by
           Judges
           ,
           in
           Cases
           of
           far
           less
           difficulty
           and
           concernment
           .
           This
           I
           have
           also
           enlarged
           upon
           in
           my
           Argument
           ,
           page
           26.
           
        
         
         
           Object
           .
           But
           it
           might
           have
           been
           a
           long
           time
           before
           any
           Parliament
           had
           been
           called
           .
        
         
           Answ.
           We
           ought
           to
           have
           Parliaments
           once
           a
           year
           ,
           and
           oftner
           if
           need
           be
           ;
           and
           
             eadem
             praesumitur
             esse
             mens
             Regis
             ,
             quae
             Legis
          
           ;
           and
           we
           then
           stood
           in
           great
           need
           of
           a
           Parliament
           even
           for
           the
           sake
           of
           this
           very
           Case
           .
        
         
           And
           these
           hasty
           Judgments
           are
           one
           ill
           Cause
           why
           Parliaments
           meet
           no
           oftner
           ;
           the
           Work
           of
           Parliaments
           is
           taking
           out
           of
           their
           hands
           ,
           by
           the
           Judges
           .
           And
           it
           is
           the
           Interest
           of
           some
           great
           Officers
           ,
           that
           Parliaments
           should
           not
           be
           called
           ,
           or
           else
           be
           hastily
           prorogu'd
           or
           adjourn'd
           .
        
         
           As
           to
           the
           point
           of
           the
           feigned
           Action
           ,
           which
           the
           Lord
           Chief
           Justice
           seems
           to
           justifie
           ,
           I
           conceive
           he
           mistakes
           the
           force
           of
           the
           Objection
           .
           Feigned
           Actions
           may
           be
           useful
           ;
           but
           this
           Action
           against
           Sir
           
             Edward
             Hales
          
           ,
           is
           suspected
           not
           only
           to
           have
           been
           feigned
           and
           brought
           by
           Covin
           between
           him
           and
           his
           Servant
           and
           Friend
           ,
           but
           it
           was
           feignedly
           and
           faintly
           prosecuted
           ,
           and
           not
           heartily
           and
           stoutly
           defended
           .
        
         
           Like
           the
           practice
           of
           common
           Fencers
           ,
           who
           play
           for
           a
           Prize
           ,
           they
           seem
           to
           be
           in
           good
           earnest
           ,
           and
           look
           very
           fierce
           ,
           but
           agree
           before-hand
           not
           to
           hurt
           one
           another
           .
           
             
               Qui
               cum
               ita
               pugnabat
               tanquam
               se
               vincere
               Nollet
            
             
               Aegre
               ,
               est
               devictus
               ,
               proditione
               suâ
               .
            
          
        
         
           This
           solemn
           Resolution
           was
           given
           upon
           a
           few
           short
           Arguments
           at
           the
           Bar
           ,
           and
           without
           any
           at
           the
           Bench
           ,
           and
           upon
           other
           Reasons
           (
           as
           I
           have
           heard
           )
           which
           were
           then
           made
           use
           of
           ,
           are
           now
           given
           by
           the
           Chief
           Justice
           ;
           but
           the
           Times
           will
           not
           now
           bear
           them
           .
        
         
           After
           all
           ,
           I
           intend
           not
           by
           this
           to
           do
           the
           Office
           of
           an
           Accuser
           ,
           nor
           to
           charge
           it
           as
           a
           Crime
           .
           But
           as
           I
           think
           my self
           bound
           in
           Duty
           ,
           on
           the
           behalf
           of
           the
           whole
           Nation
           ,
           of
           my self
           ,
           (
           though
           a
           small
           part
           and
           member
           of
           it
           )
           and
           of
           my
           Friends
           ,
           I
           humbly
           propose
           ,
           That
           the
           Judgment
           given
           in
           Sir
           
             Edward
             Hales
          
           his
           Case
           may
           ,
           after
           a
           due
           Examination
           ,
           (
           if
           there
           be
           found
           cause
           )
           be
           legally
           Revers'd
           by
           the
           House
           of
           Lords
           ,
           and
           that
           Reversal
           approv'd
           of
           and
           confirm'd
           by
           a
           special
           Act
           of
           Parliament
           .
        
         
           FINIS
           .
        
         
      
    
     
       
         Notes, typically marginal, from the original text
         
           Notes for div A26142-e420
           
             Declaration
             .
          
           
             Plea.
             
          
           
             (
             Order
             .
             )
          
           
             The
             Act
             of
             25
             Car.
             2.
             
          
           
             Of
             the
             Law
             in
             general
             .
          
           
             Of
             a
             Dispensation
             .
          
           
             Of
             this
             particular
             Act
             of
             25
             Car.
             2.
             
          
           
             Dangers
             from
             Papists
             
          
           
             to
             the
             Protestants
             .
          
           
             The
             Test.
             
          
           
             Judgment
             given
             by
             Parliament
             .
          
           
             The
             Pishop
             of
             Winchester's
             Collections
             .
          
           
             Of
             Law
             in
             general
             .
          
           
             Laws
             made
             by
             consent
             of
             the
             People
             .
          
           
             *
             Grotius
             de
             Jure
             Bell.
             &
             pacis
             ,
             f.
             151.
             
          
           
             †
             King
             James
             the
             Firstin
             his
             Speech
             to
             the
             Lords
             and
             Commons
             at
             White-hall
             ,
             1609.
             f.
             531.
             
          
           
             25
             H.
             8.
             c.
             21.
             
          
           
             ‖
             Leges
             nulla
             alia
             causa
             nos
             tenent
             quam
             quod
             judicio
             populi
             receptae
             sunt
             .
             
               Ulpian
               de
               Lege
            
             ,
             32.
             
             Tum
             Demum
             Leges
             humanae
             habent
             vim
             suam
             cum
             fuerint
             non
             modo
             institutae
             sed
             etiam
             firmatae
             approbatione
             Communitatis
             .
             Sir
             Wal.
             Ral.
             
               in
               his
               Hist.
               of
               the
               World
               ,
            
             245.
             
          
           
             *
             Fol.
             531.
             
          
           
             Mr.
             Hooker
             .
          
           
             Fol.
             17.
             
          
           
             Non
             eget
             Mauri
             jaculis
             nec
             Arcu
             .
          
           
             The
             original
             of
             Dispensation
             .
          
           
             Instances
             of
             Dispensation
             .
          
           
             The
             Definition
             of
             a
             Dispensation
             .
          
           
             The
             Original
             of
             Dispensation
             .
          
           
             *
             Marsilius
             Patavinus
             ,
             
               in
               the
            
             14
             
               Cent.
               (
               of
            
             Padua
             )
             
               in
               his
            
             Defensor
             .
             pacis
             .
          
           
             It
             s
             Antiquity
             .
          
           
             ‖
             Dr.
             Barrow
             of
             the
             Pope's
             Supremacy
             ,
             316.
             
             See
             there
             the
             unreasonableness
             of
             Dispensations
             .
          
           
             †
             Anno
             1215.
             
          
           
             Pag.
             646
             ,
             647.
             
          
           
             Mat.
             Paris
             ,
             p.
             677.
             
          
           
             *
             Sir
             Cotton's
             Abridgment
             of
             the
             Records
             of
             the
             Tower
             ,
             amongst
             the
             Petitions
             of
             the
             Commons
             ,
             51
             E.
             3.
             
             Numb
             .
             62.
             
             Dispensations
             from
             Rome
             ,
             are
             said
             to
             be
             the
             chief
             Grief
             .
          
           
             Prinn's
             Second
             Tome
             .
             Fol.
             504.
             
          
           
             Ibidem
             ,
             760.
             
          
           
             Innocent
             4th
             .
          
           
             *
             Dr.
             Barrotti
             in
             the
             Pope's
             Supremacy
             .
             31.
             
          
           
             L.
             3.
             c.
             3.
             sect
             .
             10.
             
          
           
             Fol.
             39.
             
          
           
             *
             Sir
             
               Ed.
               Coke
            
             2
             Inst.
             27.
             
             No
             Law
             or
             Custom
             of
             England
             can
             be
             annul'd
             but
             by
             Act
             of
             Parliament
             .
          
           
             Selden's
             Dissertatio
             ad
             Fletam
             ,
             539.
             
          
           
             Fol.
             775.
             
          
           
             The
             King
             and
             Parlialiament
             have
             the
             Power
             of
             Dispensing
             .
          
           
             The
             Statute
             of
             Dispensation
             .
          
           
             The
             Preamble
             .
          
           
             No
             Prescription
             .
          
           
             The
             time
             of
             Limitation
             in
             a
             Writ
             of
             Right
             ,
             is
             limited
             to
             the
             time
             of
             R.
             I.
             
          
           
             Where
             the
             true
             Power
             of
             Dispensing
             resides
             .
          
           
             15
             R.
             2.
             nu
             .
             8.
             
          
           
             2
             H.
             4.
             nu
             .
             26.
             
          
           
             R.
             2.
             nu
             .
             22
             
          
           
             17
             R.
             2.
             34.
             
          
           
             2
             H.
             4.
             nu
             .
             63.
             
          
           
             *
             Hob.
             157.
             at
             the
             lower
             end
             .
             It
             is
             the
             Office
             of
             Judges
             to
             advance
             Laws
             made
             for
             Religion
             ,
             according
             to
             their
             end
             ,
             tho'
             the
             words
             be
             short
             and
             imperfect
             .
          
           
             †
             Sir
             
               Ro.
               Cott.
            
             Abridg.
             1
             R.
             2.
             nu
             .
             95.
             2.
             
             Inst.
             408.
             
          
           
             *
             39
             E.
             3.
             21.
             40
             
             E.
             3.
             34.
             
          
           
             Objection
             .
          
           
             *
             12
             H.
             7.
             19.
             
             Plowden
             319
             ,
             &
             322.
             
          
           
             *
             Sir
             Moor's
             Reports
             ,
             239.
             
             Warram's
             Case
             :
             A
             Prerogative
             that
             tends
             to
             the
             great
             prejudice
             of
             the
             Subject
             ,
             is
             not
             allowable
             .
          
           
             
               Croke
               ,
               Jac.
            
             385.
             
             The
             same
             Case
             .
          
           
             *
             14
             E.
             3.
             c.
             7.
             
             That
             by
             their
             trusting
             to
             tarry
             in
             their
             Office
             by
             procurement
             they
             are
             encouraged
             to
             do
             many
             Oppressions
             to
             the
             People
             .
             28
             E.
             3.
             c.
             7.
             42
             
             E.
             3.
             c.
             9.
             1
             
             R.
             2.
             c.
             11
             
          
           
             †
             Sir
             Cotton's
             Abr.
             18
             E.
             3.
             nu
             .
             54.
             
          
           
             Objection
             .
          
           
             Answer
             .
          
           
             *
             1
             H.
             4.
             c.
             6.
             
          
           
             †
             11
             E.
             3.
             c.
             1.
             13
             
             H.
             7.
             8.
             by
             Daver
             
               's
               Letter
               B.
            
             
          
           
             Answer
             .
          
           
             *
             See
             13
             H.
             7.
             8.
             by
             Daver's
             Letter
             B.
             
          
           
             Election
             of
             Sheriffs
             by
             the
             County
             .
          
           
             Fol.
             174
             ,
             175.
             
          
           
             28
             E.
             1.
             c.
             8.
             &
             chap.
             13.
             
             See
             the
             Reports
             of
             E.
             2.
             
               in
               t
               '
               Memoranda
               Scac
               '
            
             fo
             .
             28.
             
          
           
             *
             Sir
             
               Rob.
               Cot.
            
             Abr.
             18
             E.
             3.
             nu
             .
             54.
             
          
           
             See
             the
             Stat.
             of
             6
             H.
             8.
             c.
             18.
             in
             the
             Statutes
             at
             large
             ,
             concerning
             the
             Under-Sheriff
             of
             Bristol
             .
          
           
             9
             H.
             5
             ,
             c.
             5.
             
          
           
             *
             Palmer's
             Rep.
             451.
             
          
           
             Dr.
             Burnet's
             Hist.
             of
             the
             Rights
             of
             Princes
             ,
             239.
             
             K.
             James
             in
             his
             Promonition
             to
             all
             Christian
             Monarchs
             ,
             298.
             
          
           
             Objection
             .
          
           
             Answer
             .
          
           
             Objection
             .
          
           
             Answer
             .
          
           
             8
             R.
             20.
             
          
           
             Answer
             .
          
           
             Argument
             .
          
           
             Answer
             .
          
           
             Or
             Tributary
             .
          
           
             L.
             1.
             
             C.
             5.
             
          
           
             †
             K.
             James
             1.
             in
             his
             Speech
             to
             both
             Houses
             ,
             1609
             ,
             in
             his
             Works
             ,
             fol.
             533
             ,
             says
             the
             King
             with
             his
             Parliament
             ,
             are
             absolute
             in
             making
             or
             forming
             of
             any
             sort
             of
             Laws
             .
             Sir
             Rawleigh's
             Hist.
             of
             the
             World
             ,
             fol.
             245.
             
          
           
             ‖
             Archbishop
             Laud
             too
             did
             the
             like
             .
          
           
             Seld.
             Dissert
             .
             539.
             
          
           
             Seld.
             Dissertat
             .
             ad
             fletam
             .
             fol.
             537.
             
          
           
             Pryn's
             Second
             Tome
             ,
             fol.
             290
             ,
             292
             ,
             299.
             
             &
             301
             ,
             302.
             
          
           
             46
             E.
             3.
             
             Rot.
             Parl.
             nu
             .
             7.
             8.
             
          
        
         
           Notes for div A26142-e15780
           
             Object
             .
          
           
             Estoppel
             .
          
           
             Answ.
             
          
           
             Object
             .
             2.
             
             Here
             is
             no
             Estoppel
             .
             Answ.
             
          
           
             A
             Stranger
             may
             take
             the
             advantage
             of
             this
             Estopp
             .
          
           
             7
             E.
             4.
             1.
             
             Br.
             Estoppel
             163.
             
          
           
             Knoil
             &
             Heymor's
             third
             Kebk
             .
             528.
             by
             Chief
             Justice
             Hale
             .
          
           
             That
             a
             Stranger
             cannot
             falsifie
             a
             Verdict
             .
          
           
             Rol.
             Abr.
             first
             part
             ,
             362.
             
          
           
             
               Dr.
               and
               Stud.
            
             68.
             à
             ad
             fin
             .
             &
             b.
             
          
           
             Object
             .
             2.
             
          
           
             Answ.
             
          
           
             A
             dependant
             Action
             .
          
           
             An
             Action
             dependant
             or
             collateral
             .
          
           
             *
             
               Jaques
               versus
               Caesar.
            
             And
             Dr.
             Drury's
             Ca.
             8
             R.
             142.
             
             And
             Mackaelly's
             Ca.
             9
             R.
             68.
             
          
        
         
           Notes for div A26142-e17270
           
             1
             H.
             4.
             c.
             6.
             
          
           
             Pag.
             10.