The Kings Authority in Dispensing with Ecclesiastical Laws, Chapter 1
CHAP. I. The Caſe and State of the Queſtion.
THE King's Power and Juriſdiction in Eccleſiaſtical Affairs, may fall under a three-fold Conſideration: as, Firſt, put forth by himſelf; Secondly, by Commiſſion granted to Eccleſiaſtical Perſons, and exerciſed in thoſe Courts we term Spiritual or Eccleſiaſtical. Thirdly, Or ſuch Affairs are managed and ordered by him in Parliament, and the Authority thereof.
The Form in which theſe Eccleſiaſtical Laws are expreſſed unto us, is this; Be it enacted by the King's moſt excellent Majeſty, by and with the Advice and Conſent of the Lords Spiritual and Temporal, and Commons in Parliament aſſembled, and by the Authority of the ſame, &c. Meerly to adviſe and conſent, imply no more Authority in the eſtabliſhment of Eccleſiaſtical Laws, than what was put forth in the Convocation in their Canons; but it being added, by the Authority of the ſame, this Authority thus mentioned, may be conſtrued, either relating to the Advice and Conſent of the Lords and Commons in Parliament, a Suffrage more than an Advice or bare Conſent; for it implieth, when Bills are formed, read, debated, and aſſented to by both Houſes, they were then ſtamped with ſome kind of Parliamentary Authority: Or it is to be interpreted, relating to King, Lords, and Commons; and which is likely, for Conſultations of Parliament, tho concluded by Vote, yet become not formally a Law, until his Majeſty hath given his Royal Aſſent.
And in this ſenſe, Eccleſiaſtical Laws and Orders, which are Enacted and Eſtabliſhed by Statutes, have as formal a Sanction (being not only by Authority of the King, but by Lords and Commons aſſembled in Parliament) as other Laws wherein our Civil Intereſts are concerned, namely, a joint, and not the ſingle Power of either.
This being granted, (rather than needleſly to diſpute thoſe higheſt Intereſts) and thence alſo inferred, That as theſe Eccleſiaſtical Laws have their Riſe, Vigour, and Strength, ſo their Diminution and Abatement from conjunction of both Powers; and are more fixed and ſtable than thoſe Canons and Orders in Eccleſiaſtical Matters, that have their Sanction from the King only.
To this I ſay briefly; Altho Men may be Tenants in Common, yet none can be joint Tenants with the King. Theſe Powers are not equal, the King hath the Supremacy, and is thereby enabled to ſuch Acts and Orderings about the Penalties of our Laws, as are peculiar to the Crown and Dignity of a King; as in Mitigating, Exempting, Diſpenſing, Licenſing, Pardoning, &c. and all this more eſpecially in Eccleſiaſtical Matters, as by the following Diſcourſe will appear.
SECT. 1.
This Power and Superiority exerciſed by the Kings of England, in relation to the Penalties of ſuch Penal Laws of both ſorts ſhall be ſpoken to in theſe two Particulars.
I. That ſuch an Authority and Supremacy is neceſſary, and ought to be placed in ſome Hand.
II. That it is a Dignity which hath always been placed in the Kings and Queens of this Realm.
I. For the former; In all Polities and Forms of Government, as there is a Rule which is to be the Meaſure and Square to, and by which all Mens Actions that live under that Polity, are ordinarily to be conformed and judged; ſo is there always ſome proviſion made for mitigating the Rigour of the Rule, in Caſes which may fall out and cannot be foreſeen by the wiſeſt Legiſlators; and in ſuch caſes to exerciſe Summum jus, would be Summa injuria: therefore there is here, not only a Power to judg, as the caſe ſtands in the ſtrict Letter of the Law, but as there are Courts of Law, ſo are there Chanceries, Courts of Equity and Conſcience, wherein the Law and Rule it ſelf is diſpenſed with, and varied from; and the Proceedings there are not according to the ſtrict Terms of Law, but ſecundum equum & bonum, as the Merit of the Caſe in it ſelf may require.
1. For Laws conſtituted for a whole Nation univerſally, to be ſubmitted to by Perſons of what quality ſoever, and how much ſoever different in their Conditions, muſt needs, in their ſtrict execution, bear harder upon ſome Men than others, Parliaments in their Laws going by the Rule of (Ad ea quae frequentius accidunt, &c.) and better an inconvenient Miſchief, than an Inconvenience.
It is taken for granted, that a general Law which hath its Good and Neceſſity, in reſpect to the Bulk and Body of a People, may prove unequal to particular Perſons from the Circumſtances of their preſent Condition. In a Common Wealth the Eaſe and Benefit of each particular Perſon, of what Degree or Condition ſoever, is to be conſulted; but where Laws are executed in their full rigour, and no Mercy or Indulgence to particular Perſons, in ſpecial and unuſual Caſes, it will not be ſo. God himſelf, who knoweth every Man's Heart, yet ſome of his Laws that are given in general to all, would not prove ſo equal to each at all times, without exemptions in particular Caſes. Hence we ſay, Affirmative Precepts bind not ad ſemper; to ſuch Laws is that of Mark 2.26. in the Caſe of Shew-bread to be referred. And the Pope, who aſſumes to himſelf a poſſibility not to Err, yet how doth his Republick abound in Courts for Faculties, Diſpenſations, Indulgences, &c.
2. It's alſo to be conſidered, there are no Societies of Men but may err in their Councils; Laws made in one Parliament come to a Review, and often to an Alteration, yea Repeal in the next: The Intervals of thoſe great Councils are ſometimes long, and if no way of Relief were in the mean time, the Subject would, without Remedy, undergo the penalty of an unequal Law.
Theſe and the like Conſiderations make it neceſſary, that beſides the Legiſlative Power placed in the Parliament, that there be ſome Hand or other alſo, by which upon all emergent Occaſions, the rigour of a Law as to its Penalty may be abated, by the means whereof, not only Mens Liberties and Eſtates, but Lives alſo are ſometimes preſerved.
SECT. 2.
2. This Ballance hath always been truſted in the Hand, and annexed to the Sovereign Majeſty of every State; for this Intereſt doth little vary, but remaineth in a manner the ſame in all Republicks, in what Form ſoever they be eſtabliſhed. In the State of England, being an Empire, and its Crown in many Acts of Parliament (eſpecially relating to theſe Matters) ſtiled Imperial; this Power is inſeparably annexed thereunto, which needs little proof, it being confirmed by the Oath of Supremacy. An Oath is the End of a Controverſy. Our great Lawyers alſo give in their Suffrage hereunto, frequently affirming that the Statutes relating to the King's Eccleſiaſtical Juriſdiction, are not introductive of New, but declarative of the old Law.
When an Act, ſay both thoſe two Learned Judges, Cooke and Rolls, forbiddeth under a Penalty, in caſe it may be inconvenient to divers particular Perſons, in reſpect of Circumſtances, the Law gives Power to the King to diſpenſe therewith.
And in like Caſes, or upon other Conſiderations equal, he may Diſpenſe, Licenſe, Pardon, &c. Yea, although thoſe Laws have been paſſed by his Majeſty's Royal Aſſent formerly; and (which is more) a Clauſe inſerted in the Act, that the King's Licence or Diſpenſation in this or that Caſe, ſhall be void: Yet it will be no Bar to ſuch Prerogatives as are inherent and originally inſeparable to his Royal Perſon, but he may give Licence with a Non Obſtante thereunto. A learned Serjeant, in his Nomotechina, hath theſe words, The King by a Clauſe of Non Obſtante, may diſpenſe with a Statute Law, if he recite the Statute, though the Statute ſay ſuch Diſpenſations ſhall be merely void. And he may Licenſe Things forbidden by the Statutes, as to coin Mony, which is made a Capital Offence by the Statute, and was before lawful, for that it is but malum prohibitum; but malum in ſe, as to leave a Nuſance in the Highway, he cannot licenſe to do; but when it is done he may pardon it; but where the Statute ſaith, his Licenſe ſhall be void, which the Civilians call Clauſula derogativa, there it muſt have a Clauſe of Non Obſtante, that is to ſay, this Clauſe notwithſtanding any Statute, elſe it is not good. And ſays the ſame Author, He may, in reſpect of his Supream Eccleſiaſtical Juriſdiction, exempt ſome from the Juriſdiction of the Ordinary, and diſpenſe with others in things which the Eccleſiaſtical Law prohibits, upon the ſame ground that they are not mala in ſe, but prohibita. I hold clear (ſaith Judg Hobart) that though the Statute ſays, That all Diſpenſations, &c. ſhall be granted in manner and form following, and not otherwiſe; that yet the King is not thereby reſtrained, but his Power remains full and perfect as before; and he may ſtill grant them as King.
The King may remit the Penalty or Puniſhment of thoſe Laws, which he hath no power to diſpenſe with, as where what is forbidden by the Law is Malum in ſe, ſaith the Serjeant in his aformentioned Diſcourſe of Law, much more then when what is forbiden is only Malum prohibitum.
The Statute indeed of the 9th of Edw. 2. Cap. 7. enacts, That no Letter ſhall proceed from the King to diſcharge an Excommunicated Perſon, but where the King's Liberty is prejudiced: But as this Statute it ſelf proves the Law and former Practice, ſo it takes it not away, ſince the King's Liberty of diſcharging ſuch Perſons uſed before, is preſerved by the ſame Statute.