Concerning the Illegality of the Ecclesiastical Commission, Treatise · Chapter 3

Concerning the Illegality of the Ecclesiastical Commission · Treatise · Chapter 3

p. 25CHAP. III. Whether the King's Supremacy by Law extends to the Dispensing with Laws: Of the Nature and Original of the Power; The Inconsistency of such a Dispensing Power with the Frame of our Government.

HAving thus far proceeded in clearing the ancient Legal Supremacy, I am now come to an Instance of greater Weight and Difficulty; and which will therefore require more Pains and Care in the Examination of it, viz.

11 H. 7. 12. By the Ecclesiastical Laws allowed with in this Realm, a Priest cannot have two Benefices, nor a Bastard can be a Priest; but the King may by his Ecclesiastical Power and Jurisdiction dispense with both these, because they be mala prohibita, and not mala per se.

Here we are to enquire into these things,

(1.) How far the King's Power and Jurisdiction did extend in the Cases mentioned.

(2.) How far the Reason here given will justifie a Power of Dispensing with Laws.

(1.) As to the Cases here mentioned; there is no doubt but the Canonists made the Power of Dispensing in these to be an Argument of the Pope's Supremacy, or the Plenitude of his Power: But doth it hence follow, That what Princes did to their own Subjects, as to the qualifying them for a Legal Possession of Benefices, must argue a Supremacy in them over Ecclesiastical Persons and Causes? And there is a difference to be made between not Receiving the Pope's Canons in particular Cases; and a Power of Dispensing with Ecclesiastical Laws. If the Law were so then, as is noted by Fineax, in 11 H. 7. 12. the plain Consequence is, That the contrary were no part of the Ecclesiastical Laws, allowed within this Realm. As in the famous Case about the Canon Law concerning Bastardy, when the Barons said, Noluleges Angliae mutari; no man can say, That the Barons dispensed with the Pope's Ecclesiastical Laws; but that they refused to execute them; for, as it is well observed in Standish's Case, in Kelway's Reports, 7 H. 8. Ecclesiastical Laws have no force, where the General Practice hath been contrary. If this were no more than a private Opinion of Fineux, of what he thought the King might do, although there were no Precedent for it, p. 26then it signifies little; but if from hence it appears, What the Common Law of England was; then it follows, That this was not received at that time for the Ecclesiastical Law of this Kingdom. And so Hobart, in Colt and Glover's Case understands it, f. 147. for he produces this as an Instance, That the Crown always kept a Possession of its Natural Power: And to this he adds a Power of Commendam or Retaining a Benefice with a Bishoprick, 11 H. 4. 60. This he calls a Power of Dispensation in Spiritualibus: But with submission to two such great Men in the Law, If the Crown always kept a Possession of these Rights, there could be no Dispensation with the Ecclesiastical Law in these Matters, but an Exclusion of it.

As for Instance, The Kings of France do challenge many Priviledges to themselves in their Kingdoms, in plain Derogation to the Canon Law; and for these Priviledges they plead an Ancient Right of the Crown, or an immemorial Custom: As in the great Controversic of late Years, about the Regale, the Canon Law is express, That upon Pain of Excommunication, no Lay Person what soever shall presume to meddle with the Profits of Vacant Bishopricks; C. 12. q. 2. n. 46, 47.which was decreed by two Popes in several Councils, Urban II, in a Council at Awergn, MXCV, and Innocent II, in. Lateran Council MC XXXIX; both entred in the Body of the Canon Law: And yet the Kings of France insist to this Day on the Rights of Vacant Sees, as belonging to them. But can this be pleaded as a Dispensing with the Ecclesiastical Laws allowed in that Realm? No, but that this Part of the Ecclesiastical Law was not received there; for that, partly by the Feudal Right, partly by the Right of the Crown, partly by Immemortal Custom, the Profits of Vacant Bishopricks accrue to the King.

It is a harder Point to defend the Regale, where the Custom hath gone along with the Canon; but if the Rights of the Crown be defended in France against Custom and Canon too, our Kings cannot be blamed for resuming other Rights after so long Usurpation by the Popes. But where the Canon Law was not received in any Part of it, there it hath no Force to oblige; and where there is no Ecclesiastical Law in Force, there can be no Dispensing with it; for although the later Canon Law, doth void all Customs against the Liberties and Priviledges of the Church, Non debet in hac parte Canonibus, ex aliqua consuetudine praejudi…ium generari: Yet when these Canonists come to explain it, they tell C. Clerici de Judiciis. C. cum terra declect. C. 1 & ult. de Consuet.us, That an immemorial Custom hath Force against a Canon; but how? Not as a Custom, but as it is a Proof of an Ancient Priviledge granted by the Pope; although there be not the least …ootsteps of it: And so this Instance of H. 7. will prove, according to this Way, only some Ancient Priviledge our Kings had, and no Ecclesiastical Jurisdiction by the Right of the Crown.

But whether the King could Dispense with the Ecclesiastical Laws in these Cases, or not, it is certain the Pope challenged to himself the Power of doing it.

p. 27For, after that the Third Council of Lateran liad strictly forhidden Pluralities (which were then so common and scandalous) upon pain of Forfeiture, Innocent the Third complained in the Fourth Lateran, That he saw little or no Benesit come by that severe Canon; and therefore he seems to make one more severe: That whosoever takes another Benefice, shall be deprived of the former ipso jure; and if he seeks to keep it, to lose the other. Yet after all, this ends only in the Popes Power to dispense as he saw Cause, with Persons of greater Rank or Merit, and greater Preferments.

The Words are, Circa sublimes tamen & literatas Personas, quae De Multa de Prabend.majoribus Beneficiis sunt honorandae, cum ratio pustulaverit, per Sedem Apostolicam poterit Dispensari. Here the Dispensing Power is fairly owned in the Canon it self.

And in the other Case, of the Incapacity of Priesthood by Illegitimation; the same stout Pope declares, That it was in his Power to dispense with that too.

The Case was this; The Church of Worcester, upon the Vacancy C. Innotuit de Elect.of the See, had chosen the Arch-Deacon of York for their Bishop; he comes to the Arch-Bishop of Canterbury for Confirmation; but secretly confesses to him his Illegitimacy; (which came to the Popes Ear.) Upon Application to the Pope for his Confirmation, he demurs upon it. He could not deny that he had all other Qualifications: But there was a Canon of the former Lateran Council, which voided the Election of all Persons Illegitimate. So then the Business is at an end. Not so neither. His Predecessor could not hinder him from Dispensing in this Case; who had equal Power with himself. And there were many Reasons to induce him to grant him a Dispensation. Why then did he not give one? There was something else to be done first. The Dispensing Power must be owned by the Church of Worcester: And therefore they must first intreat the Pope to Dispense with him, by a humble Supplication; and then expect his Favour by Postulation. And so, for the present he voids his Election.

Matt. Paris takes particular Notice, That in the Publication Mat. Paris, ad A. D. 1235.of the Decretals by Gregory 9. This Power of Dispensing in these two Cases, was looked on as a great Innovation; but such as brought great Advantages to the Court of Rome.

And the same Pope, saith Matt. Westminster, voided the Election of John Bloud to the See of Canterbury, because he had enjoyed Matt. Wesim. ad A. D. 1233.two Benefices with Cure of Souls, without a Dispensation. And Stephanus de Segrave obtained, he saith, of that Popes Nuncio here, a Dispensation of Tot quot; but it came to nothing by his Sons Death.

Here we see a Power of Dispensing with Ecclesiastical Laws, publickly owned and entred in the Body of the Canon-Law; and that by virtue of the Plenitude of the Popes Power, which could not be bounded by the Canons of the Church, nor by the Laws of his Predecessors; nor by the solemn Profession every Pope makes at his Entrance, to preserve inviolably the Canons and Constitutions of his Predecessors.

p. 28This made so great an Alteration in the state of the Church, that it is no wonder great Complaints were made of it; considering that the Consequence of such a Power, could be nothing less than a subversion of all Orders, and Canons, and Privileges; for there could be no security of any of them any longer than it consisted with the Popes Pleasure.

Hence came all the Complaints of Non-obstante's, by the whole English Nation in Parliament, That by their means Oaths, Matt. Paris, A. D. 2246. p. 649. A. D. 1251. p. 818.Customs, Charters, Grants, Privileges signified nothing; for the Pope could Dispense with his own Oaths and Promises, as well as other mens; and so there could be no Trust in any thing he said or promised in never so solemn a manner. Which is an effectual course to overthrow any Government in the world. And it is a wonder, that after such gross and avowed violations of the most solemn Engagements, Mankind did not renounce all kind of Society with him: For that is founded upon Trust in Compacts and Promises; and if those may be dissolved at pleasure, there is no foundation of mutual Society left; there being no reason to expect the Performance of that from others, which they do not think them selves obliged to do. And so such a Power of Dispensing with Obligations, naturally tends to a Dissolution of Government. For it is sinking the main Pillars on which the whole Fabrick stands; which will tumble down sooner or later upon the heads of those who do it.

But the great Argument then was, That Supreme Power cannot be bound; and therefore the Popes pleaded, whatsoever Canons or Laws their Predecessors made, they could not tie up them; because Par in Parem non habet imperium: So we find Innocent 3. argued in the Canon-Law. And to the same purpose Matt. Paris saith, That his Successor Inneocnt 4. did. But they did not Matt. Paris, A. D. 1253. p. 873. Lib. Diurnus Pontif. 30.attend to their own Professions, still extant in the Liber Diurnus, wherein they did declare in the most solemn manner, That they would maintain the Canons and Constitutions of their Predecessors. Which was an absolute Bar to all Non-obstante's, if they acted upon Principles of common Honesty among Men.

But besides this, in Privileges granted to others upon valuable Considerations (which the Popes took care of) the Persons to whom they are granted, become Parties, and have a real Interest in them; so that they become of the Nature of Contracts; which cannot be broken without plain Injustice, and dissolving that Obligation between them.

It is agreed by the most Learned and Judicious Lawyers, That when Grants or Promises do pass into the Nature of Contracts, they Ferrand. Vasq. Cont. Fret. l. 3. c. 51. n. 2. Pet. de Marca, de Concord. Sacerd. & Imperii, l. 3. c. 10. n. 2.are irrevocable by the Parties that made them. And this the best French Canonists do plead against the Popes Power of revoking the Gallican Liberties, supposing them at first to have come from the Popes Condescensions to them. And the same Reason will hold as to other Liberties.

p. 29But here lies the main Difficulty, to shew, When the Grants that are made by Superiors, do pass into the Nature of Contracts; so that they cannot be Revoked or Dispensed with.

The short of it is, When they are rather Capitulations than Laws. For Laws are properly the Commands of those who have Authority to oblige; and the Reason of the Obligation is drawn from the Authority of the Persons: But Capitulations proceed upon Consent of Parties having differing Interests; and these among Private Persons, are called Contracts; and no one questions, but that such all men are by natural Justice bound to perform.

But the Popes insisted on the Plenitude of their Power; and a Question is put among the Canonists, and variously debated: Whether if the Pope swear to some things in the Conclave, as that he will hold a General Council within such a Time, he can Dispense with himself, or not?

Some say, he is guilty of Perjury, and cannot absolve himself, although he should apprehend that a greater Good would come by not keeping it. For that both Pope and Emperor are bound by their own Contracts; the keeping of them being a Part of Natural Justice: which no Plenitude of Power can Dispense with; since all Contracts giva a Right to the Persons with whom they are made; insomuch that Baldus his Authority is cited by Baldus, in c. 2. §. Siquis vero de Pace Const. In l. Digna vox. In l. 1. F. De Const. Princip.them for these Words, Contractus qui fiunt cum Principe, habent naturam bonae Fidei contra Dominum; and he goes so far as to say, That the Sovereign Power is so obliged by the Contracts made by Princes with their own Subjects, that they are not revocable by themselves or their Successors: And if they were not obliged by their own Contracts, no man could trust them; and consequently all Society with them, would be dissolved. And whatever Supreme Power may do as to such Acts as are properly its own, yet where there is Jaeobat. De Conciliis. l. 7. f. 320. C.Jus quaesitum alteri (as in all Contracts there is) that cannot be taken away by it.

But all this was answered on the other side, by the Plenitude of the Popes Power; for it was a Contradiction, they said, to own that, and to say, That there was any Engagement by Oath, or otherwise, which he could not Dispense with. For, as Hank. 11 H. 4. 37. Hob. R. f. 146.says, Papa omnia potest. And therefore all such Oaths and Promises as limit the Popes Dispensing Power, are void in themselves. And as to Ecclesiastical Laws or Constitutions, they easily resolved all Difficulties about them, upon such Principles as these.

1. That the Popes have the supreme Power in the Church.

2. That the Ecclesiastical Laws were the Popes Laws.

3. That it is an inseparable Prerogative in the Pope to Dispense with Ecclesiastical Laws upon Necessity and urgent Occasions.

4. That the Pope is the sole Judge of that Necessity.

5. That this was not a Trust given to the Pope by Councils or Conclaves, but by God and St. Peter, and therefore cannot be taken away from her.

p. 30But I shall endeavour to give a clearer Light into this Matter, by shewing the several Steps and Degrees how this Dispensing Power came into the World, and how it passed from the Ecclesiastical to other Laws, when Princes assumed such a Plenitude of Power in Civils, which the Popes practised in Ecclesiasticals.

The first time we read of Dispensations was with respect to the Ancient Canons of the Church; and it implied a Relaxation C. 1. q. 7. sect. nisi rigor.of the Rigour of them; not with respect to their Force or binding Power, but as to the Penance which Persons were to undergo for the Violation of them. And herein the Notion of Dispensing was very different from what the Canonists made it afterwards, when they declared it to be a Relaxation of the Law it self; so that it should not have that Force upon the Conscience which it otherwise had: For, a Dispensation with them, is a Licence to do that which they cannot lawfully do without it; and that with a non-obstante to that which otherwise makes it Unlawful. De Jure illicitum fit ex Dispensatione licitum, & hic est proprie effectus Dispensationis, saith Pyrrhus Corradus; who Praxis Dispens. Apostolicarum Auctore Pyrrho Corrado.gives a large Account of the Practice of Dispensations in the Court of Rome, which conclude with a non-obstante to any former Constitutions or Canons of Councils: But no such thing can be found in the Ancient Practice of the Church, because the Popes themselves were then believed to be under the Canons. But when it was supposed, That the severe Execution of the Canons would rather hinder than advance the Good of the Church, the Governours of it thought they had sufficient Authority to abate the Rigorous Execution of them: As about the Times of Penance, the Translation of Bishops from one See to another, the Intervals of Orders, and such like. But the Popes then pretended to be strict Observers of the Canons, when the C. 7. q. 1. c. Petiisti.particular Bishops took upon them to Dispense with the Execution of them; as appears by Ivo's Preface to his Collection of Canons, where he distinguisheth the Immoveable or Moral Precepts from the Canonical; which he calls, Moveable. In the former, saith he, no Dispensation is to be allowed; But in those things which only concern Discipline, the Bishops may Dispense, provided there be a Compensation, i. e. That the Church's Interest may be better secured or advanced thereby, as he there discourses at large; And his Rule is, Ibi Dispensatio admittenda est, ubi rigor periculosus est: But by this means the Severity of the Primitive Discipline Ivo Epist. 236was quite lost.

The Bishops of Rome observing this, thought it a proper time for them to appear zealous for the Ancient Canons, which gained them a great Reputation in the World; and by this means the Custody of the Canons was looked on as their particular Province: Which they improved so well, that at last they turned the Guardianship of the Canons into a Power over them; and then they found Fault with the Bishops Dispensing with them, for another Reason, viz. Because the Dispensing Power was a p. 31Prerogative of the Roman See, and Inferior Bishops could act no farther in it than they had Authority from it.

We find that in S. Bernard's time, the Pope did take upon him to Dispense too far, to his great Dissatisfaction; for by his Dispensing Power, he saith, he overthrew the Order of the Church; Bernard de consider. ad Eugenium, l. 3.Murmur loquor, saith he, & querimoniam Ecclesiarum. The Pope dispensed with the Ecclesiastical Laws, in Exemptions of Abbots and others from that Subordination, they stood in to their proper Superiors: He saith, He could not see how this Dispensing Power could be justified: You do indeed shew a plenitude of Power, but it may be not of Justice; you shew what you can do, but it is a Question whether you ought or not; and you ought to consider, First, Whether it be lawful; then whether it be decent; and lastly, whether it be expedient. At last, he allows a Dispensing Power in two Cases, Urgent Necessity, and Common Good; otherwise he saith, It is not fidelis Dispensatio, sed crudelis Dissipatio, an overthrow of all Order and Government. In one of his Epistles he speaks sharply against getting a Dispensation to do that which it was not lawful to do without one: And he thinks he hath disproved Bernard. epist. 7.it by invincible Reason, For a Licence from the Pope can never make that Lawful, which without it were Unlawful.

When the Practice of the Dispensing Power grew more common, there were two great Questions raised concerning it; Whether if a Dispensation were granted without Just Cause, it were Lawful or not? And, Whether if it were not Lawful, yet it was valid? There were some who flattered the Dispensing Power so much, that they allowed it in all Cases, whether there were a just Cause or not: These were the high-flown Canonists, who resolved all Laws into Will and Pleasure: But others, who allowed a Dispensing Power upon a Just Cause, yet thought it repugnant to the Original Design of Government, for those who are entrusted with Care of the Laws, to Dispense with them, without such a Cause as answers the End of Government: And some went so far, as to deny any Validity in a Dispensation granted upon Pleasure; for as an unjust Law hath no Force, so, said they, an unjust Dispensation of a Good Law hath none.

Upon this Point two great Schoolmen differ. Suarez, whom Suarez de legibus, l. 6. c. 18, 19. Vaugbans Rep. f. 348. Suar. c. 18. n. 6.the Lord Chief Justice Vaughan commends for his Learning in this Matter, goes upon these Grounds,

1. That a Prince is not Dominus, sed Dispensator Legum; although the Force of a Law depends upon his Authority; and therefore in Dispensing with a Law he doth not act by Absolute Power, but by Administration: For he is not Lord over the Community, but Governour.

2. That for him to Dispense in a Law made for the Community, without a just Cause, is not only malum quia prohibitum, sed ex se, & ex natura rei & semper malum: Therefore Suarez was n. 26.far from thinking a Prince might Dispense with any thing that p. 32was not malum in se; for he makes it to be so, for him to dispense with a malum quia prohibitum, if it be prohibited by a Law made for a Publick Good, and there be no just Cause for it.

3. That although a Prince sins in Dispensing with such a Law; yet his Dispensation holds as to the Force of the Law; which he supposes to depend on the Will of the Prince, and c. 19. n. 6.therefore his Will being altered, the Obligation ceaseth as to the Persons Dispensed with.

4. That although such a Dispensation holds as to the Law, yet he thinks a Prince bound in Conscience to Revoke such a n. 9.Dispensation, because it is unlawful for him to persist in such a Will, it being repugnant to the Common Good, and the Obligation of his Duty.

5. That if such a Dispensation be to the Injury of a third Person, then it is void in it self, as being repugnant to Justice.n. 10.

Vasquez saith, They are all agreed, That no Prince hath a Power to Dispense with his Laws according to his Pleasure; or because Vasq. 1. 2. Disp. 178. c. 4. n. 34.they are his Laws: But he saith, There is a Dispute, Whether an unlawful Dispensation be valid or not? And he thinks not, and that a Man's Action after the Dispensation, is as faulty as if there had been none; His Reason is, because a Prince is bound by his own Laws, so that he cannot Dispense with himself as to the Obligation of them; for, if he could at Pleasure Dispense with himself, he could never be bound; for how can a Man be bound to keep a Law, in which he can Dispense with himself when he pleases? And if he cannot Dispense with himself, much less with any under him.

Having thus endeavoured to clear the Nature and Original of the Dispensing Power; I now come

(2.) To the Reason assigned by Sir E. Coke, from the Year Books, why the King may Dispense with Laws, because they be mala prohibita and not mala per se.

My Lord Vaughan said Right concerning it, That this Rule hath more confounded Men's Judgments on this Subject than rectified Vaugh. Rep. f. 332.them:

Which I shall make appear by shewing,

I. That it alters the Frame of our Government.

II. That it takes away all Security by Law.

III. That it contradicts the Sense of our Nation in former Ages.

IV. That the Rule is contrary to the Precedents in Law.

I. That it alters the Frame of our Government.

For it goes upon a very false Ground, viz. That the King may Dispense with any thing which is not Evil in its own Nature, p. 33or antecedently to any Human Laws; which is to suppose the whole Legislative Power to be lodged in the Person of the King:

For, all who understand these Matters, do agree, That a Power to Dispense with Laws, is the same with a Power to make them.

Dispensare, hoc est, lege solvere is solus potest, qui ferendae abrogandae que Grot. de aquit. Indulg. & facilitate, c. 2. n. 10 Suarez de leg. l. 6. c. 14. n. 2.leg is potestatem habet; saith H. Grotius.

Suarez saith, He hath the Power of Dispensing, qui legem tulit, quia ab ejus voluntate & potentia pendet.

Vasquez, That the Dispensing Power lies in him, qui habet Potestatem condendi & abrogandi legem.Vasquez 1, 2. disp. 178. c. 2. Pusendorf de jure naturae, & gent. l. 1. c. 6. n. 17.

Pufendorf, That none can Dispense with a Law, but such as have the Power of making it.

But we need no Authorities in this Matter: For to Dispense (in the Sense it is here taken) is to take away the Obligation of a Law; and whoever takes it away must have the Power of laying it on: And there is no Difference between the Dispensation with a Law, and the Abrogation of it; but that a Dispensation is an Abrogation of it to particular Persons, while others are under the Force of it; and an Abrogation is a General Dispensation, that being no more than a Relaxation of the whole Law, to those Persons who were bound by it before: But if a part of the Law be taken away, as to the whole Community, then it is called a Derogation of it; But if the Law be Relaxed only for a limited Time and under certain Conditions, then it is not an Abrogation, but an Indulgence or Suspension of the Law.

To Dispense with a Law is more than to give an Equitable Sense or a Favourable Interpretation of a Law; for he that Inteprets a Law, supposes his Interpretation to agree with the Sense and Design of the Law; he that Dispenses, owns that which he dispenses with, to be against the Intention of the Law, but that he hath Power to take away the Force of it, so far as he thinks fit.

He that saith, Thou shalt not kill, doth not reach to Legal Executioners of Justice, interprets the Law according to Reason and Equity: But when God said to Abraham, Go and Sacrifice thy Son, he must be supposed, by virtue of his Supreme Authority, to Dispense with the Law in his Case, so as to make that Lawful upon his Command, which would not have been so without it.

Some will not allow this to be called a Dispensation, but an alteration of the Matter of the Law; but when that Alteration comes from the Authority of the Law Makers, it is the same; so that to Interpret a Law is an Act of Discretion and Judgment; but to Dispense with it, of Authority and Jurisdiction. And none can therefore Dispense in the Law of God, but he that made it; all that the Wisest and greatest Men can justly pretend to, is no more than to give the true Sense of it; and it is intolerable Prsumption for any Creature to pretend to more.

p. 34An Equitable Sense, as to Human Law, is not always that which seems to be most favourable to those who go against the Letter of it; but that which most enforces the End and Design of the Law, although it be not comprehended in the Words of it.

If a Law mentions a Crime of a lesser nature, in regard of Circumstances, and in regard of those Circumstances, promises some Favour, (as Benefit of the Clergy) it can be no Equitable Sense to extend it to such Acts which have worse Circumstances, because the Ground of the Favour was the extenuation of the Fact by the Circumstances; so that the chief Rule of Equity in the Interpretation of a Law, is to attend to the Intention and Design of it, more than to the bare Words.

The Intention and Design of the Law is not to be measured by Particular and Accidental Cases, wherein some Inconveniencies are to be born, but by the Publick and General Good, which more than makes amends for them; which is the Reason of that Maxim, Better a Mischief than an Inconvenience; which is false, unless taken in such an Equitable Sense.

There are certain Ways of Reason, which Mankind do allow in the Equitable Interpretation of Laws, as That no positive Law must be interpreted against Natural and Divine Laws: That if Laws contradict each other, one or the other must lose its Force: That no Case which overthrows a Law by necessary Consequence, was ever intended to be allowed by it; For that were to make a Law, and to give a Liberty to break it at the same Time.

If a Law be designed for a Publick Good, and an Exception be afterwards made against it, as to the Incapacity of some Persons, by it, for Publick Service, which could not but be foreseen and considered at the Time of making the Law, there is no Reason that should be alledged as a Reason for Dispensing with the Law, which was intended at first by the Law: For however the Case may be put, as to such things which could not be foreseen, at the making of a Law, yet what was intended to be prevented by the making it, cannot in Reason be alledged against it: Because if there had not been other things to have over-ballanced that Inconvenience the Law had never been passed.

There is no doubt but the same Power which makes a Law, may Dispense with it, if it sees Cause; for if it can Abrogate a Law, as to the whole Community, it may as well Dispense with it, as to particular Persons, and leave it in Force to all others.

The Question then is, Whether a Prince assuming to himself a Dispensing Power, doth not thereby assume the Legislative too? Since it appears, That there can be no Power to take off the Obligation of a Law, but that which causes it; although it be with respect to particular Persons; but if it amount to a General Suspension of a Law, there can be no Question to those who understand what these things mean.

Our present Business was to shew, That if the King can dispense with Mala prohibita, as such, the Legislative Power must p. 35be resolved into him; because a Dispensing Power can be refer'd to no other: And if the King may Dispense with all Mala prohibita, he may Dispense with all just human Laws. For no Law can be just, which requires Malum in se; and therefore such a Law being void of it self, there can be no Exercise of a Dispensing Power, but concerning Mala prohibita. And if the King can therefore Dispense, because they are only prohibited, then from a Parity of Reason he may Dispense with all Laws that concern only such things; and we cannot be secure of any Laws, but such as forbid things that are evil in themselves.

II. And this is my Second Reason against it, That it takes away all Security by our Laws, both as to our Religion and Liberties.

1. As to our Religion: I grant, that, to take away all Religion, is Malum in se; to take away the true Religion, is Malum in se; but in a Nation divided about the true Religion, and where the Prince is of one Opinion, and the main Body of the Nation of another concerning it, what Security can the People by this Rule have as to the enjoying that which they account the true Religion, but the Prince doth not? The utmost we can suppose in this Case, is, for such Laws to be made, as they apprehend to be most effectual for this Purpose. But what Security can these Laws afford, if the Prince assume a Power of Dispensing with Ecclesiastical Laws? It is not possible they can have any, unless they can be secure he shall never exercise this Dispensing Power; for by it, he may equally suspend all Laws which relate to it; he may give a Dispensation to such as are unqualified by our Laws, and put them not only into Places of Authority and Trust, but into all Ecclesiastical Preferments, as soon as he thinks fit; and that without any Check upon his Conscience; because those whose Office it is to interpret the Laws, tell him, he hath such a Power by Law to Dispense with Ecclesiastical Laws, although passed in the solemnest manner, and with a Design to give Security to the People concerning the preserving their Religion.

And the higher this Point is carried, still the less Security For, if it be thought such a Prerogative of the Crown, as voids all that is made against it, then Laws signifie just nothing: For, every Law is a Limitation of unbounded Will and Power; and therefore Laws afford no manner of Security; for either they are void of themselves, or may be made void when a Sovereign Prince pleases. And I think (as Men are) meer Will and Pleasure will never be taken for an infallible Security.

But it may be said, That taking away the true Religion, is Malum in se; and therefore by this Rule such Laws cannot be dispensed with.

Very true; we think so: But suppose a King of another Opinion; and that he should think it good Service to destroy p. 36Heresie and Schism, and those are Mala in se; what Security can there be then from this Rule? For the same Persons who assert the Dispensing Power, make the King to be Judge, not meerly of the Necessity and urgent Occasions, but of what is Malum in se, and what not? Suppose then, he should look on our Religion as Heresie and Schism, what possible Security can this Distinction afford us?

2. As to our Civil Liberties; Which are founded upon our Laws, made by the Consent of King and People. But if there be such an inseparable Prerogative in the Crown, as enables the King to Dispense with all Mala prohibita, what becomes of all the Ancient Charters of Liberties? For, no one can pretend that the contrary to them all are Mala in se. And if there be no farther Security, than what this Distinction affords, we are in a very precaridus Condition, as to all our Liberties.

I confess the Case is different, as to the Ecclesiastical Laws, mentioned in 11 H. 7. 12. and as to our Civil Liberties: because these Ecclesiastical Laws had their Force as such from a foreign Power; and as far as they were the Laws of the Kingdom, it was by a Tacit Consent and Acceptation; and not by any solemn Enacting of them. And as to such as these, where the Laws were not received, and the things were no farther evil, than as they were prohibited by such a Foregin Power, there is nothing but what is reasonable in the Case of 11 H. 7. 12. as it is in the Books.

But when this hath been extended to Laws which have passed in the most solemn manner by the King in Parliament; it is time not only to take notice of, but to set forth the mischievous Consequences of this Distinction, as it is so applied; for it leaves us under no manner of Security by our Laws.

3. It contradicts the Sense of our own Nation in former Ages. Which I shall shew in a remarkable Instance, about the Statutes of Provisors, 35 E. 1. 25 E. 3. 13 R. 2. which were Prohibitory Statutes. And it cannot be supposed that at that time, when the Pope was allowed to be Head of the Church, and consequently Supreme Patron of the Benefices of it, that the Acceptance of a Title to an Ecclesiastical Benefice from him, should be thought Malum in se. But these Statutes being in force, I shall make it appear that the King did own he had no Power to Dispense with them, but as the Parliament thought fit to allow it.

I begin with 15 R. 2 at a time, when the Kingdom was in quiet; and however, could not be in any disturbance on the Account of the Statute of Provisors, which the Nation desired and only those who depended on the Court of Rome opposed. But the Court-Bishops suggested that it was for the Kings Interest in dealing with the Court of Rome, to have a Power to Relax and to Dispense with these Statutes as he saw Cause. Therefore the p. 37Arch-Bishop of York, then Chancellor, proposed it in the opening of the Parliament, as one of the things for which it was called, Rot. Parl. 15 R. 2. n. 1.viz. To find out a Temperament in that Matter, so as the Pope might not lose his Right, nor the King his. After this Matter was debated, the Commons declare their Assent en plein Parliament, That without prejudice to the Rights of those who were in n. 8.Possession by virtue of the Statute, the King by the Advice and Consent of the Lords, might Dispense with the said Statute, so as should seem reasonable and useful till the next Parliament, but so as the said Statute be repealed in no Article of it. And they reserve to themselves the Liberty of disagreeing the next Parliament. And they conclude with a solemn Protestation, That this was a Novelty not practised before, and ought not to be drawn into an Example and Precedent for the future; and they desire this Protestation might be Entred and Recorded in the Rolls of Parliament; which the King commanded to be done. Doth this now look like a Declaratory Act, and made in Affirmance of the Kings Dispensing Power? It might as well be said, That an Act for Restraining the Prerogative, is made in Affirmance of it. It is true, there is a Dispensing Power granted, but with such Restrictions and Limitations as shew, that such a Power was not then thought to be inherent in the Crown. For,

1. Why should it be proposed to the Parliament to grant it, if the King had it before? Did the King ever put it to the Parliament to grant him a Power to Pardon Malefactors? But in the case of Dispensing with a Law, it was not only proposed but assigned, as one Reason of calling the Parliament.

2. Why till the next Parliament, if it were owned to be an inherent Right of the Crown? Would the Parliament go about to bound and limit an inseparable Prerogative in such a manner?

3. Why is it called a Novelty, and a thing not to be drawn into example? Was ever any thing like this said of a Declaratory Act? The Natural Consequence whereof is just contrary; that whereas some just Right of the Crown hath been contested and denied, for the future it ought to be owned and submitted to by all Persons. It is hard to think of Words more inconsistent with a meer Declaratory Act than those, Ne soit trait en ensample nen Consequence en temps avenir.

4. If this were a Declaratory Act, what need it be repeated so often in Parliament afterwards? Were the Commons so forgetful of the Kings Prerogative, as to need making so many Declaratory Acts about the same thing? Yet thus we find it about this Dispensing Power, as to the Statutes of Provisors.

For 16 R. 2. The Archbishop of York again declared in the opening of the Parliament, That one Cause of calling it, was to Rot. Parl. 16. R. 2. n. 8.settle this Matter about Provisors. And the Commons again yielded, The King should have such a Power to moderate it, as he should with his Council judge expedient; but so as it be all laid open before the next Parliament, that they might upon good Advice agree to it.

p. 3817 R. 2. Tydeman, Abbot of Beauley, was by the Popes Provision, made Bishop of Landaff. But the King, notwithstanding the Rot. Parl. 17 R. 2. n. 22.former Proceedings, did not take upon him to dispense with the Statute, but left it to the Parliament; and his Dispensation was passed by Act of Parliament, the King, Lords and Commons assenting thereto.

20 R. 2. The Commons in Parliament do again Assert de bon Rot. Parl. 20 R. 2. n. 21.gre de leur parte en plein Parlement, That the King with his Council may dispense with the Statute of Provisors, as shall seem fit, so as the same be heard and examined the next Parliament, and so corrected as shall be thought convenient by the King, with the Advice of his Council in Parliament.

1 H. 4. The Commons in like manner give their Assent, That Rot. Parl. 1 H. 4. n. 85.the King should have the same Power of Dispensing with the Statute, which his Predecessors had, and to Repeal and Annul it, as should seem expedient to him. Which was no more than a General Dispensation. Yet notwithstanding this was recorded in Parliament.

2 H. 4. The Commons appearing before the King and the Rot. Parl. 2 H. 4. n. 26.Lords, it was declared, That the Dispensation should not extend to Cardinals or other Strangers. At the same Parliament a Petition was presented to the King, That if any one did accept a Benefice by Papal Provision, against the Statute, and had his n. 42.Pardon from the King for it; yet if he went about to disturb the present Possessor, by virtue of his Provision, then his Pardon should be void, and he should incur the Penalty of the Statute. To which the King gave his Assent.

3 H. 4. The King having granted particular Licenses for Dispensations as to this Statute, and finding the great Inconveniences Rot. Parl. 7 H. 4. n. 134.which came by them, he generally and universally revovoked them, and promised in Parliament to find out some proper Remedy in this Matter.

7 H. 4. The King was moved in Parliament to confirm that Rot. Parl. ib.Revocation; but he then took time to consider. But 9 H. 4. c. 8. the King reinforced in Parliament all the Statutes against Provisors; as it is in Print.

1 H. 5. The Commons pray, That the Statutes may stand in Rot. Parl. 1 H. 5. n. 22.full force against Provisors; and that no Protection or Grant made by the King to hinder the Execution of the said Statutes, shall be allowable, or of any force; and whatever is done contrary to them, shall be null.

The Answer is, Let the Statutes be observed and kept. But if the Statutes were to be strictly observed, what saving can there p. 39be to the King's Prerogative? since the Statutes were Universal, and the King's particular Grants in this Case were the great Motive of the Commons Desire to have them reinforced, in the beginning of this King's Reign: And these Statutes continued in full Force to the Time of H. 8. insomuch that Cardinal Woolsey was prosecuted by the King's Attorney, for offending against them by his Legatine Power, although he had the King's Assent to it, and he exercised it several Years by his Permission. Stephen Gardiner, in his Letter to the Protector, saith, That he obtained his Legatine Power by the King's Assent: From whence he observes, What Danger they may fall in, who break the Law with the King's Consent; for in the Cardinal's Case, he saith, That because his Legatine Power was against the Laws of the Realm, the Judges conclude the Offence to be such as incurred the Praemunire: And this he Asserts was the Sense of the Lawyers of that Time; and for confirmation of it, he brought the Case of the Lord Tiptoft, who sufferd on Tower-Hill, because in execution of the King's Commission, he had offended against the Laws of the Realm: And of many Judges who had Fines set on their Heads in like Case, for acting against the Law of the Realm by the King's Commandment.

But it is pleaded on the other side, That the Commons, 1 H. 5. Short account, p. 25▪n. 22. put in the saving the King's Prerogative into their Petition concerning the Statute of Provisors, that it may stand in full Force: And this was an owning the King's Dispensing Power by all the Commons in Parliament, when they were in a high Debate with the Crown.

This seems to have a good shew of Reason to any one that doth not consider the Practice of those Times, in Acts of Parliament; for the Petitions of the Commons, before 2 H. 5. were not taken entire and just as they delivered them; but several Clauses were inserted by the Court, especially such as seemed to preserve the King's Prerogative; which the Commons found so inconvenient, Rushworth's Collections, vol. 1. p. 574.That the next Year, as Serjeant Glanvil observed, (and probably on the Occasion of these Savings, 1 H. 5. n. 15, and n. 22.) the Course was altered, and hath so continued.

Therefore methinks so great Weight should not be laid on these Savings, as if they implied the owning the Dispensing Power, when the Design of the Law was against it. And the King's Answer is, Let the Statutes be held and kept.

I appeal to any Man's Understanding, whether the saving the King's Prerogative can be any other than a General Clause put in, without respect to the Dispensing Power; since the Petition is against the Exercise of it, and the Answer, That the Statutes should be observed? If they were observed, what Use of the Dispensing Power; for that lay in giving leave not to observe them? What strange Sense is this, The King promises, The Statutes shall be kept, saving his Prerogative, that they may not be kept? for, they feared the not keeping them from such a Prerogative: and when the King therefore Yields they shall be kept, he doth give up any such Prerogative, or else he doth not answer their Petition.

p. 40The Truth is, when the Kings had got this Power into their Hands, though it were with such Limitations at first, yet they found Arts from time to time to keep it, till at last they were unwilling to part with it; as appears by H. 4. but upon the restless Importunity of the Commons it was laid down by him. And now in the beginning of H. 5. the Commons took Care to prevent its Rising in a new Reign; but he being a Prince not ready to part with any thing which looked like Power, was in probability, not easie to be brought to confirm the Statute: of Provisors, without some general Words of saving his Prerogative, which the Commons might yield to, that they might gain the main Point; since those Words could signifie nothing against the very Intention and Design of the Law.

IV. The Precedents in Law do contradict this Rule; as will appear by those which are produced by the Lord Chief Justice Vaughan, in the Case of Thomas and Sorrel.

Vaugh. Rep. f. 337.1. The King cannot Dispense with a Common Nusance, for The King, he saith, cannot Pardon continuing Nusances; but the Penalty he may.

The King cannot Dispense with a Nusance to the High Ways, by 11 H. 7. he cannot Pardon or Discharge the Nusance, or the suit s. 339.for the same, the High-ways being necessary for such as Trawel; but Common Nusances are not mala in se, which are not Evils at Common Law (as some understand them) but things so intrinsecally Evil, that no Circumstances can make them lawful. Malum in se is a Moral Evil, in its own Nature; and therefore can never be Dispensed with; but a Nusance at Common Law is but a Natural Evil, and all the Moral Evil of it lies in the Prohibition by Law: And yet in these, it is granted, That the King cannot Dispense: And the Year-Book saith, That a Licence to make a Nusance in the High Way were void: For what Reason? Is it a thing forbidden by the Natural or Divine Law? Cannot the King, for his Will and Pleasure, License the Making a Nusance? and yet is it possible for Men of Sense to imagin, That he can by his Dispensing Power give leave to do such things, as in consequence overthrow our Laws and Religion? Doth the Law take greater Care of the High-Way than of our Liberties and Religion? This would seem strange Doctrine to People of another Country, viz. That by the Law of England the King hath no Power over the High-Way, to Dispense with a Common Nusance therein, but he hath over the Laws made for the most Publick Good and Security of the Nation. And truly this cannot but seem strange to as many among our selves, as allow themselves the Liberty of thinking; Doth the Law only take care of Oxen and High-Ways?

But it is well observed by the Learned Chief Justice Vaughan, That Publick Nusances, are not mala in se, but mala politica & f. 358.introducta; and when a thing is said to be prohibited by the Common p. 41Law, the meaning is no more but that the Ancient Record of such a Prohibition is not to be found

2. The King cannot Pardon the Damage done to particular Persons, f. 333, f. 334.saith the same Chief Justice, where the Suit is only the Kings, but for the Benefit and Safety of a third Person, the King cannot Dispense with the Suit, but by Consent and Agreement of the Party concerned. And again,

Penal Laws, the Breach whereof are to Men's particular Damage, cannot be Dispensed with.f. 335.

And the Chief Justice Herbert owns, That the King cannot f. 29.Dispense with Laws which vest the least Right or Property in any of his Subjects.

Here we see, the Prerogative bounded, where the Interest of particular Persons is concerned; but doth the Law take more Care of them than of the Publick Interest, and the concernment of the whole Nation?

But I find another Distinction in this Case, viz. There is Short Account, p. 21.Bonum Publicum; and Laws made for that may be Dispensed with: And there is Bonum singulorum Populi; and with Laws that concern that the King cannot Dispense.

This is admirable Learning, if it be brought out of these Terms: And the meaning is, The King can do nothing to the Prejudice of the People in their Private Capacities, but he can do what he will with the Publick. I had thought, a Prince had been, in the first Place, bound to regard the Good of the Publick, and to take Care of the salus Populi complicati, (as it is called) i. e. as they are imbodied together, and not of the Private Interests of particular Men, which can never be preserved, when the Publick Safety is not secured.

3. It is granted, That in Penal Laws, by Act of Parliament, V. R. f. 342.where the Offenders are punishable at the King's Suit, but where the Offence is to the immediate Wrong of Particular Persons, and for which the Law gives them special Actions, the King cannot Dispense.

Never was Law more tender of the Interest of Particular Persons than ours: But suppose a Penal Law by Act of Parliament, relates immediately to the Publick, and gives no particular Persons any Special Actions; is such a Law therefore Dispensable, because only the Publick Good, and the Safety of the Nation are concerned? which are not (it seems) to be valued with the Private Interests of Particular Men. They who affirm such things, may be very learned in Book Cases; but they do not seem to have studied the Jus Publicum, as Bracton calls it, which concerns Statum Reipub. or the Political Law of this Nation; Bract. l. c. 5. n. 2.which shews the great Respect which the Good of the Community ought to have above Private Interests: But when Persons take up their Notions and Maxims, from Laws relating to Meum and Tuum, they are very apt to judge of Publick Laws, according to those Measures.

p. 424. It is granted, That the King cannot license a Baker, Brewer, f. 349,or Victualler to break the Assize of Bread or Ale, nor a Miller to take more Toll than the Law appoints (therefore these are mala prohibita); nor a Taverner to break the Assize of Wine; Nor a Butcher to sell measled Swines-Flesh or Murrain Flesh; nor any Man to forestal the Market, by a non obstante of the Statute de Pistoribus; which prohibits all these under several Penalties.

Nor can he licence Butchers, Fishmongers, Poulterers, or other Sellers of Victuals; nor Hostlers to sell Hay and Oats at what Price they please, by a non obstante of the Statute of 23 E. 3. c. 6. and 13 R. 2. c. 8.

Still the Law is extreamly tender of us, as to Meat and Drink, and not only for our selves, but for our Horses too; so that the King cannot Dispense with the Laws about them: And yet can we think so meanly of the Wisdom of our Ancestors, that they would take such Care of Bread, and Wine, and Horse-Meat, that the King himself could not inhance the Price of them; but that as to their Laws, which relate to the Publick, they were content to leave them to the Will and Pleasure of their Prince? No one that reads the History of our Ancestors, and the Contests they had with Kings to obtain their Publick Liberties, could ever entertain such a Thought concerning them.

5. If Foreign Manufactures or Foreign Corn be prohibited for support of the Natives, a Licence to one or more, to bring them in, if f. 344.General, is void by the Case of Monopolies, notwithstanding a non obstante.

This is certainly Malum prohibitum; and yet the King cannot Dispense with it. And it is really a very hard Case, if the King cannot Dispense with a Monopoly in Trade, and may Dispense with a Monopoly in Religion, i. e. That notwithstanding all the Laws for setling our Religion at Home, he may grant a Licence to Foreigners to introduce another, although never so repugnant to our Laws; for none who understood our Affairs, could imagine, That this Dispensing Power was set up for any other End.

But what shall we say to the Precedents on the other side? I shall pass by others, which have been sufficiently answered already, and only speak to that which above all others hath been declared to be the Foundation of the Dispensing Power; and therefore deserves to be farther cleared; and that is,

The Case of Dispensing with the Statutes about Men's continuing Sheriffs more than a Year; which is urged as plain and concluding, Short account, p. 9.because it was for a Publick Good, and preventing great Mischiefs; yet the King's Power of Dispensing in this Case was allowed by all the Judges of England, 2 H. 7. and this hath been cited as adjudged in several Books of great Authority, Fitz-Herbert, Plowden, Coke, &c. and the Practice hath ever since been accordingly.

p. 43This is the whole strength of the Argument. And I shall not repeat what others have already said, to shew that this was not the Reason of the Judicial Sentence then given; but the particular Ground of one of the Judges, after they had declared the Patent to be good. But however that were, it cannot be denied, that great Lawyers since that time, have taken it to have been the Sense of the Judges then. For Coke's Words are express in Calvin's Case; It is Enacted by the Parliament of 23. H. 6. That no 7 R. 14.man should serve the King as Sheriff of any County above one Year, and that notwithstanding of any Clause of Non-obstante to the contrary, that is to say, notwithstanding that the King should expresly dispense with the said Statute; howbeit, it is agreed in 2 H. 7. That against the express purview of that Act, the King may by a special Non-obstante dispense with that Act.

Here it is plain, that in Coke's Opinion, at least, the Judges did agree, that although King and Parliament had made an Act which made void any Grant with a Non obstante, yet that such a Grant made afterwards, with a special Non obstante, was good.

I am not much concerned, whether it were their Opinion or not; because I think there is much greater Reason, and stronger Authority on the other side.

1. As to Reason: If a Non-obstante from the King, be good, when by Act of Parliament a Non-obstante is declared void, what doth an Act of Parliament signifie in such a Case? Must we say, It is a void Clause? But then to what purpose was it put in? Did they who made the Act, understand it to be a void Clause when they put it in? Certainly, it was then thought otherwise; and if it were so, we have the Authority of the Parliament against the Opinion of the Judges. If it were not a void Clause then, how came it to be so afterwards? What Alteration was made in the Law of England in that Interval, and by whom? How comes a Clause that had force in 23 H. 6. to have none, 2 H. 7? Could Radcliff or the rest, by their Opinions, destroy the Force of an Act of Parliament?

No; But Coke saith, No Act can bind the King from any Prerogative which is sole and inseparable from his Person; but he may 12 R. f. 18.dispense with it by a Non-obstante, as a Sovereign Power to command any of his Subjects to serve him for the Publick Weal, and this solely and inseparably is annexed to his Person; and this Royal Power cannot be restrained by any Act of Parliament, neither in Thesi nor in Hypothesi; but that the King by his Royal Power may dispense with it; for upon the Commandment of the King and Obedience of the Subject, does his Government consist; as it is provided by the Statute of 23 H. 6. c. 8. That all Patents made or to be made of any Office of a Sheriff, &c. for Term of years, or for Life, in Feesimple or in Tail, are void and of none effect, any Clause or Parol of Non-obstante put or to be put into such Patents to be made notwithstanding. And further, Whosoever shall take upon him or them to accept or occupy such Office of Sheriff, by vertue of such Grants or p. 44Patents, shall stand perpetually disabled to be or bear the Office of Sheriff within any County of England, by the same Authority. And notwithstanding that by this Act, 1. The Patent is made void. 2. The King is restrained to grant a Non-obstante. 3. The Grantee disabled to take the Office, yet the King by his Royal Sovereign Power of commanding, may command by his Patent (for such Causes as he in his Wisdom doth think meet and profitable for himself and the Commonwealth, of which he himself is sole Judge) to serve him and the Weal Publick, as Sheriff for such a County, for years or for Life, &c. And so was it resolved by all the Justices of England in the Exchequer Chamber' 2 H. 7.

Here the Point is resolved into an inseparable Prerogative in the King; which no Act of Parliament can restrain, although made with his own Consent. Is there no Act of Parliament then, which this great Lawyer will allow to restrain the King's Prerogative, so as he cannot disperse with it? What saith he to the Case of Buying Offices at Court? Cannot the King by vertue of his Prerogative, order his Houshold as he pleases, to dispose of Offices about him, as he thinks fit; No. The same Lawyer saith, That no Non obstante could dispense with the Act against 1 Inst. 234.buying of Offices. And yet one would think that the King had as great a Prerogative in the Court, as over the Kingdom.

But how comes he to say, That the King can dispense notwithstanding the Disability, when elsewhere he saith, The King cannot dispense in the Case of a Disability by Law? For the Reason he gives why the King cannot present a Man to a Living who is convict of Simony, is, because the Law hath disabled him. Very 1 Inst. 120. 3 Inst. 154.well. And yet in this Case, although the Law hath disabled him, the King may dispense. Where are we now? The King can dispense with a Disability, and he cannot dispense with it. This is indeed a very dark learning of Dispensations, as C. Justice Vaughan well called it; for we cannot yet find the way through it.

Can the King dispense with a Disability in Law or not? If not, the Case of Sheriffs is gone. If he can, then why not in the case of Symony? Why not, as to sitting in Parliament without taking the Oaths? No, here is a Disability in Law. What then? Cannot the K. dispense with a Disability in one Case, as well as the other? Bu: the same Person saith, That in that Case, because the Words amount to a Disability, the King cannot dispense, and here, where the 3 Inst. 154.Disability is expressed, he may.

But we are lately told, there are two sorts of Disabilities: one is actually incurred, as that upon the Members who sit without Short Account, p. 38.taking the Oaths; and the other is a Disability annexed to the Breach of a Law, as a penalty, and that penalty not to be incurred before a Legal Conviction; and in this Case the King's Dispensation coming before the Conviction doth prevent it, by making that lawful which would not have been so without it. But when a Disability is actually-incurred, it cannot be taken off but by Act of Parliament.P. 30.

p. 45I Answer, That if the Law which makes the Disability, doth allow of a Dispensation antecedent to the Conviction, then I grant that the Dispensation before Conviction, prevents the Disability. As in Digby's Case; if the Dispensation had come before Institution, 4 Rep.the Disability, as to holding the former Living, had been prevented; because the Law doth expresly allow of a Dispensation in the Case. But here is no such thing. The Act of Parliament, supposes no Dispensation, but makes an utter Disability, as to the holding the Office, in Sir Edward Hales his Case; but a dispensing Power is set up against the Act of Parliament, and such a Dispensation neither before nor after Conviction, can prevent a Disability If it could, I can by no means see why it might not as well hold as to Members of Parliament, (at least as to the Oath of Supremacy) if they take their Dispensation before Sitting in the House. For the Disability doth not take place till they enter the Parliament, 5 Eliz. c. 1. And he that entreth the Parliament without taking the said Oath, shall be deemed no Knight, Citizen, Burgess, or Baron, nor shall have any Voice, but shall be as if he had been never Returned or Elected.

The Intention of the Law for the Test, was a disability to hold the Office; but it allows time for Persons to qualifie themselves, as appears by the Act for the Test. Is not this plain overthrowing the design of the Law, for Persons instead of doing what the Law requires, to take out a Dispensation for not doing it, and so prevent the Disability? And what doth a Law signifie, when the very design of it is overthrown? And what is the Power of making Laws by common Consent in Parliament, if without such Consent, the whole force of the Law may be taken away by a dispensing Power? So that this doth not meerly make Laws to signifie nothing but according to Will and Pleasure; but it makes our very Constitution insignificant; which requires to every Law the Consent of the People in Parliament.

As for Instance, By the first Constitution of the Roman Government, the King had the custody of the Laws, but no Laws were Dionys. Halyc. Arn. l. 2.to be made but by the Consent of the Roman People in the Curiae, (thence called Leges Curiatae) Would any one have thought this any Privilege, if after these Laws were passed, the King should claim an inseparable Prerogative of dispensing with them as he sees Cause? For it is implied in such a Fundamental Contract as this, that Laws when made, should not lose their Force without their Consent who made them. Else it is not Contractus bonae Fidei.

I will not dispute whether this were the Original Contract of our Nation or not; but this I may say, That when our Government came to a Settlement, after long struglings, this was one of the Fundamental Articles of it, That no Laws should pass, or Burdens should be laid upon the People but by their own Consent in Bract. l. …, …. 1, c. 3. 1.arliament. Bracton saith, That a Law among us, supposes the p. 46Authority of the Prince and the Council, and Consent of the great Men, and Agreement of the Common-wealth.

And he adds further, That our Laws being thus made and established, mutari non poterunt, nec destrui sine communi Consensu L. 1. c. 2. n. 6.& Consilio eorum omnium quorum Consilio & Consensu fuerunt promulgatae: Which are very remarkable Words against a dispensing power. For that doth imply a Power to change the Law, and in effect, to destroy it, without the Advice or Consent of those that made it. He saith indeed, The Law may be improved without their Consent, i. e. by the Judges Interpretation as to parallel Cases not expressed. But if any new or hard Case happens, it ought, he saith, to be respited usque ad magnam Curiam, i. e. to the Parliament, ut ibi per Concilium Curiae terminentur; that being the Supreme Judicature of the Nation.

Fortescue, who very well understood our Constitution, saith, That the King, although he be the Head of the Political Body, Fortescue, 2. c. 13. f. 32.can neither change our Laws, nor take away Property without Consent.

And that our Laws are made, not by the Princes Will, but by C. 18. f. 40.General Consent; Totius Regni Assensu: He saith, They may be changed, but it must be, Non sine Communitatis & Procerum Regni Assensu, quali ipsae primitus emanarunt.

He takes notice, That several of our Kings did not like our C. 34. 35.Constitution, but affected a more Arbitrary, and therefore approved the Civil Law, for that Maxim, Quod Principi placuit Legis habet vigorem. But he shews our Constitution to be better for King and People. For here he saith, The King levies no Taxes, C. 36. f. 84.nor alters Laws, or makes new ones, sine Concessione vel Assensu totius Regni sui in Parliamento suo expresso..

But certainly dispensing with Laws, is altering them; not as to their Words, but as to the Intention and Design of them, which is the main thing in a Law; and he that alters the Law, as to any one, whose Case is common with others, may alter it as to all others in equal Circumstances. And what doth such a Law then signifie?

In the Charter of King John, the Commune Consilium Regni, was to pass all Aids; and besides particular Summons to the Great Men, general Summons were to be given to others, to appear within forty days; and if they did not, Matters were to go on however. This very Charter, as appears by Matt. Paris, was renewed, 9 H. 3. But he had learned the Trick of a Non obstante from his good Friend the Pope; and when he was urged with his own Grants, he said, Doth not the Pope void his Grants with a Matt. Paris, f. 854.Non-obstante? Why may not I do the same by the Grants of my Self and my Predecessors? To whom a sharp Reply was made. As long as he observed Justice in his Actings, he would be King, and no longer. Which I only mention to shew, that the Use of a Non obstante was then looked on as a Violation of Justice.

p. 47And so it must needs be, if our Laws, as Bracton saith, be Communis Reipub. Sponsio; for then they are of the Nature of Contracts, and when Laws are so, it is agreed by those who write of these Matters, although otherwise no Enemies to a Dispensing Power, That they are not to be Dispensed with by a non obstante.

If a Prince makes a Grant of any thing wherein he hath Power to oblige himself in Justice, it becomes, saith Baselius Pontius, of the Basel. Pontius De Matr. l. 8. de dispensat. c. 5. n. 7.Nature of a Contract, which gives a Right to those to whom it is made, and lays an Obligation of Justice upon him.

Where a Grant is made for the Benefit of others, and is ac Sanchez de matr. l. 8. dispens. c. 17. n. 29.cepted by them, it is not in the Granter's Power to revoke it, as Sanchez shews from many Authorities.

And the Lawyers are of the same Mind, as appears by what is already produced out of Baldus and others; but I shall mention some who declare the Opinion of others.

Explorati juris est eas Constitutiones quae in contractum transeunt Buxtorff. in auream bullam, c. 1. sect. 7.ita ligare Principes ut iis derogare nequeant, saith Gerl. Buxtorffius.

Gail saith, That Princes are bound by all Grants made per modum contractus de Jure Communi; and that is the general Gail. observ. l. 1. obs. 41. n. 4Opinion.

One of the latest Writers de Jure Gentium, saith, That Princes are more strongly bound by Laws, which pass by way of Contracts, Job. Wolfg. Textor. de jure gent. c. 11. n. 26.than by any positive Laws made by Absolute Power, Although they relate to the weightiest Points of Government.

That a Prince cannot grant a non obstante to such Laws as he Bellug. spic. Princ. rubr. 7. n. 4. Hier. Grat. cons. 41. n. 21. Rol. a valle, cons. 62. n. 5. vol. 2. Celsus Hugo, de clausulis, n. 23.hath sworn to observe; is not only the Opinion of other Lawyers, but of some of the highest Canonists: And it is a Rule among them, That no Clause of non obstante can take away Constitutionem Juratam.

Where there is therefore not only a Contract with others in the passing of a Law, but an Oath to observe the Laws, I do not see how a non obstante or a Dispensing Power can take Place.

2. We have the Advantage in Point of Authority as well as Reason, as to this very Case of Dispensing with the Statute of 23 H. 6.

For I take it for granted, That the Authority of Parliament is more to be regarded than the Opinion of Judges: And I think we have good Reason to believe, That the Parliament did not think this Act could be voided by a non obstante.

(1.) The Parliament that declared, any non obstante against the Act to be void, was certainly of that Opinion; or else they did a ridiculous thing, to put in a Clause which was void of it self.

(2.) The Parliament, 28 H. 6. c. 3. was of that Mind; for what need an Indemnity by Act of Parliament, if the King could by his Dispensing Power have made it lawful for the Sheriffs to continue?

p. 48(3.) The Parliament, 8 E. 4. 4. continued in the same mind, for, whereas in the beginning of his Reign Sheriffs were continued more than a Year, by reason of the Troubles, it was not then thought, (though in a Case of such Necessity) That the King could Dispense with this Law; but they were indemnified by Act of Parliament, and the Act declared to stand in full Force.

(4.) the Parliament, 6 H. 8. c. 18. after the supposed Judgment, 2 H. 7. And in the time of a Prince who would lose none of his Prerogatives, was still of the same Judgment; for it not only recites the Statute, but particularly takes notice of the voiding all Pardons and non obstante's; and by Act of Parliament indemnisies the Under-Sheriffs of Bristow, and gives them the same Priviledge which those of London had. What need all this, if it had been thought good Law at that time, that the King might by his Dispensing Power have given Sheriffs leave to have acted against that Statute?

And now I leave any Man of Reason to judge, Whether this famous Case be a sufficient Foundation for the seting up a Dispensing Power, either as to a Particular Statute made for the Security of our Religion, or for a Suspension of our Ecclesiastical Laws.