A SHORT ACCOUNT OF THE Authorities in LAW, UPON WHICH JUDGEMENT Was given in Sir EDW. HALES HIS CASE. ― WRITTEN BY Sir EDW. HERBERT, Chief Justice of the Common Pleas, In Vindication of Himself. ― Licensed and Entered according to Order. ― LONDON: Printed for M. Clark, and are to be sold by most Booksellers in London and Westminster. 1688. ― ― A short ACCOUNT OF THE Authorities in Law UPON WHICH JUDGEMENT Was Given in S&rsup; EDW. HALES's Case.

&Hic;Aving been call'd to a place of Judicature in difficult times, and after my most sincere Resolutions and uttermost Endeavours of discharging the Duty of that place with a good Conscience, having yet had the hard Fortune to fall under the greatest Infamy and Reproach that is pos&rehy;sible for any man to lie under, of Perjury and Breach of Trust, in giving a Judgment in Sir Edward Hales his Case contrary to Law, and contrary to my Knowledg and Opinion (for that only can make it Criminal;) and which, they say, tends to the Sub&rehy;version of all our Laws; contrary to the Oath that every Judge takes, and to that high Trust repos'd in him to judge, to the best of his understanding, according to Law: Although I cannot hope to wipe off that universal ill Impression that the Ma&rehy;lice of some People who understand the nature of this Case very well, has made upon most men who do not understand it; yet in order to clear my self to all just and dis-interested Persons who are only my Enemies by mistake, I think my self obliged to give some short Account of that Judgment, and the Grounds upon which it was given; and this I will do, not by making an elaborate and legal Ar&rehy;gument, to make out by Reasons of my own, that the Judgment then given is consonant to Law, which whether it be or no, is like to be considered in Parliament, and to whose determination I shall as intirely and as chearfully submit as any other Person in the Nation: But I shall set down, not all the variety of Cases that we meet with in our Books touching the Kings Power of Dispensing with Acts of Parliament, for that would swell this Paper to an unreasonable length, and discourage many from reading any part of it; but only some few of the chiefest and plainest Authorities in Law, upon which the Resolution in the Case of Sir Edw. Hales was grounded. I shall not only cite the Books and Pages where those Cases are to be found, but transcribe the very Words, that every body may be convinced, that if we were in a Mistake, it was no Wilful Mistake, but that we had the Au&rehy;thority of former Judgments given by great Men that went before us (and for which they were ne&rehy;ver question'd) to lead us into it.

The Case (for I must state it upon my Memory, not having any Copy of the Record by me) was shortly this.

An Action Popular was brought against Sir Edw. Hales, upon the Statute 25. Car. 2.c.2. for the Pe&rehy;nalty of 500l. wherein the Plaintiff declares, That whereas it was provided by the Statute, &c. setting forth the Statute: Notwithstanding which, the Defendant having a Commission to serve the King as a Colonel of Foot, and not having received the Sacrament, nor taken the Oaths and Tests, &c. within the times prescribed by the Act, and after the times expired wherein he ought to have received the Sacrament and taken the Oaths and Tests as a&rehy;foresaid; he did execute the said Office, and con&rehy;tinued to act by colour of the said Commission, of which he was Indicted and Convicted at the Assizes in Kent, &c. whereby the Action accrues to the Plaintiff for the Penalty of 500l. The Defendant pleads that before the times expired, &c. he had a Dispensation under the Broad Seal to act Non obstante that Statute.

To which the Plaintiff demurres.

And Judgment was given for the Defendant that his Plea was good.

And first it will be necessary to shew what the Nature of this Dispensing Power is, which is war&rehy;ranted by our Judgment; and that will best ap&rehy;pear by the Definition of it which is given in the 11. Report of my Lord Coke, p. 88 in the Case of Monopolies. Dispensatio mali prohibiti est de jure Domino Regi concessa propter inpossibilitatem præviden&rehy;di de omnibus particularibus; & dispensatio est mali pro&rehy;hibiti provida relaxatio, utilitate ceu necessitate pensatâ. "For true it is (says the Book) that inasmuch as an Act of Parliament, which generally prohi&rehy;bits any thing upon a Penalty that is Popular, or only given to the King, may be inconvenient to divers particular Persons, in respect of person, time, or place; for this purpose the Law gives a power to the King to Dispense with particular Persons." And in the Seventh Report, pag. 63. in the Case of Penal Statutes, which was the opi&rehy;nion of all the Judges of England, 2. Jacobi, It is re&rehy;solved, That the King may Dispense with any par&rehy;ticular Person, that he shall not incur the Penalty of the Statute, tho it be an Act made Pro bono publico, and that this is a Trust and Confidence inse&rehy;parably annex'd to the Royal Person of the King. I cite these two first Cases chiefly to shew that a Dispensation in its nature is particular, and given to particular Persons by Name; which is all the Power that is attributed to the King by our Judg&rehy;ment. And this I mention because of an unrea&rehy;sonable mistake of most People that talk of the Dispensing Power, as tho the Kings Declaration of Liberty of Conscience, whereby all the Laws that concern Religion are at once totally suspended and laid asleep, were warranted by it: Let that Decla&rehy;ration stand or fall upon its own bottom, I am sure the Case I am now speaking of has nothing to do with it. And having by these Cases cleared the nature of all Dispensations, which are always granted to particular Persons (as Sir Edw. Hales his was in our Case, who was the first, and I think the only Person who then had such a Dispensation,) I shall now cite some of the chief Authorities upon which our Judgment was given in that Case; and the first and great Case that I cite, wherein the Kings Dispensing Power is described and limited, is in the Year-Book of Hen. 7. fol. 11. & H. 7.f.12. in these words, "There is a diversity (says the Book) between malum prohibitum and malum in se, as a Statute forbids any man to Coin Mony, and if he does, he shall be hanged; this is malum prohibitum, for before the Statute, Coining Mony was Lawful; but now it is not so, and therefore the King can Dispense with it. So if a Man Ship Wooll in any place but Calice, it is malum prohibitum, because it is prohibited by Act of Parliament, and the King can Dispense with it, and so in like cases: but that which is malum in se, the King nor no other person can dispense with, as if the King would give a Man power to kill another, or License one to make a Nu&rehy;sance in a High-way, this were void; and yet the King can pardon these things when they are done. These are the very words of that Book: and my Lord Vaughan discoursing of, and explain&rehy;ing this Case of Thomas and Sorrell in his Reports, p. 333. First, shews how a Dispen&rehy;sation differs from a Pardon. For a Dispensation does jus dare, and makes the thing prohibited (to all others) lawful to be done by him that has it: And therefore the King cannot dispense with mala in se because they never were, and can never be made lawful; but even these, says the Year&rehy;book, may be pardoned after they are done.

From these Cases, results this plain Syllogism. Whatever is not prohibited by the Law of God, but was lawful before any Act of Parliament made to forbid it, the King, by his Dispensation granted to a particular person, may make lawful again; to that person who has such Dispensation, though it continues unlawful to every body else.

But to execute any Office without taking the Oaths and the Tests antecedent to any Acts of Parliament made to forbid it, was lawful.

Therefore the Dispensation granted to Sir Ed&rehy;ward Hales did make it lawful for him to do so, though it continued unlawful for any body else.

In this Argument the premises are none of our own, we have them out of our Law-books; and the Authority of those books have never yet been questioned. I appeal then to any indifferent per&rehy;son, whether it can be Criminal in Judges, to draw a necessary Conclusion from Premises and Book-Cases that have been taken for Law for so many Ages together.

The next great Case is the Resolution of all the Judges of England, in the 2. of Henr. 7. in the Ex&rehy;chequer Chamber, upon the Kings Power of Dis&rehy;pensing with the Statute of 23 Henr. 6. cap. 8. That no Man should be Sheriff for above one Year. The recital in the preamble, and the whole pur&rehy;view, if compared with our Statute of 25 Car. 2. cap. 2. equals it in every particular, and in some goes beyond it: for the mischiefs recited in this latter Statute are only in these words, for prevent&rehy;ing dangers which may happen from Popish Recusants, and quieting the minds of his Majesties good Subjects. The Cause of making the Statute of 23 Hen. 6. is for preventing the Importable damage of the King and his People, Perjury, Manslaughter and great Oppression. The Purview Enacts,

1. That no Man shall be Sheriff for above a Year.

2. That all Letters Patents made for Years or Lives, shall be void.

3. That no Non obstante shall make them good, (which shews that the Parliament thought the King could otherwise have dispens'd with this Act by a Non obstante.)

4. Whoever acts by colour of such Letters Patents, shall forfeit 200l.

5. He shall be utterly disabled to bear the Office of Sheriff in any County of England.

6. That every Pardon for such offence shall be void.

Notwithstanding all this, it was adjudged in that Case before-cited by all the Judges of England (who were at that time as learned as ever sate up&rehy;on the Bench,) I say it was adjudged by all the Judges in the Exchequer-Chamber, that the Kings Dispensation with that Statute was good.

Having then this Case before us, if we should have judged the Dispensation not good in Sir Ed&rehy;wards Hales's Case, it must have been upon one of these two grounds: that is, either,

1. In the first place, we must have found some difference between the Kings power in that Case, and in this, which I confess, after the nicest inquiry, does not appear to me, and I wish any man would shew me any such difference if he can: or else,

2. We must have adjudged that Solemn Reso&rehy;lution given in the Exchequer-Chamber by all the Judges of England so long ago, and which has been taken for good Law for ever since, we must adjudge no Law: whereas the known Rule is, that after any point of Law has been solemnly setled in the Exchequer Chamber by all the Judges, we never suffer it to be disputed or drawn in que&rehy;stion again.

But our Enemies seeing the force of this Argu&rehy;ment have had the Confidence to say, that that point is not resolved in that Case, they might with as much modesty affirm, Thou shalt not bear false witness against thy Neighbour, to be none of the Ten Commandments; we can only reply in this case as in that, that if we have eyes to read, and common sense to judge, it is there resolved. Indeed there is another point about the Sheriffs passing his Accounts, which the Judges were di&rehy;vided in: but in the point of the Dispensation they all agreed, or else that other point could ne&rehy;ver have come in question.

But to put this beyond all Controversie, we have two things to offer.

1. First, That it has been cited as adjudg'd in several books of great Authority.

2. Secondly, It has been the constant practice to have such Dispensations in all Kings Reigns ever since that Resolution.

As to the first, Though I might cite many books, yet I will only cite three or four of the clearest and greatest Authorities: and the first shall be Fitzherbert, in his Abridgement of this very Case, Tit. Grant. 33. who lived near this time, and could not easily be mistaken in the sense of the Year-book; The Patent, says he, was ad&rehy;jugded good by all the Justices; but the Statute says expresly it shall be void, therefore it is only made good by the Kings Dispensing.

2. Next to him shall be Plowden, who, as all Lawyers will confess is as little like to be mi&rehy;staken in the sense of the Year-books as any Re&rehy;porter we have; and he in his Commentaries, p. 502. in the Case between Greendon and the Bi&rehy;shop of Lincoln; after citing the Case both out of the Year-book, and out of Fitzherbert's Abridg&rehy;ment, has these words where the Statute was, That the Kings Grant to any Man to be Sheriff of any County for longer time than a Year shall be void, not&rehy;withstanding any Clause of Non obstante to be put into the Patent, , there it is held, that the Kings Grant to the Earl of Northumberland, to be Sheriff during life must have a Clause of Non obstante, because of the precise words of the Statute before mentioned; and with such a Clause of Non obstante, the Patent to the Earl was good.

3. Next is my Lord Coke, who asserts the Kings Prerogative touching this matter in much higher terms than we would presume to do, in giving judgment in Sir Edward Hales his Case, for in his Twelfth Report, pag. 18. he has these words. No Act 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 Sove&rehy;reign Power to command any of his Subjects to serve him for the publick weal; and this solely and inse&rehy;parably is annext 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 Prerogative 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 Hen. 6. cap. 8. That all Patents made or to be made of any Office of a Sheriff, &c. for term of Years for life in Fee-simple or intail, are void and of none effect, any Clause or Paroll de non ob&rehy;stante, 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 Patents 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, First, The Patent is first made void. Secondly, The King is restrained to grant Non obstante. Thirdly, the Grantee disabled to take the Office, yet the King by his Royal Sovereign Power of Commanding, may Command any man by his Patent (for such causes as, he in his wis&rehy;dom doth think meet and profitable for himself and the Common-Wealth, of which he himself is solely Judge) to serve him and the weal publick as Sheriff of such a County for years, or for life, &c. And so it was re&rehy;solved by all the Justices of Englandin the Exchequer Chamber, 2 H. 7. And after some other cases to this point of the Kings Prerogative, he has this farther (says he) see 4 Hen. 4. cap. 31. In which it is Or&rehy;dained that no Welshman be Justice, Chamberlain, Treasurer, Sheriff, Steward, Constable of a Castle, Escheator, Coroner or chief Forester, nor other Of&rehy;ficer whatsoever, nor Keeper of Records, &c. in any part of Wales, notwithstanding any Patent made to the contrary, with Clause of Non obstante licet sit Wallicus natus: and yet without question the King may grant with a Non obstante. Thus far that Book, and I have transcribed the Book at large, that every body may see that the Kings Power of Dispensing with such Acts of Parliament as restrain his granting Offices, stands upon a peculiar reason besides the general one; upon which his power of Dispensing with other Penal Laws is founded. And that if this be a pernicious Opinion, we are not to suffer as the first Authors of it. But lest it should be Objected, that this is my Lord Cokes single Opinion; or that the twelfth Report is not of so great Authority as the rest of his Reports are: The same is Resolved by all the Judges of England, (if my Lord Coke be a faithful Reporter) in Calvin's Case in the seventh Report, p. 14. in these words: Every Subject is by his Natural Allegi&rehy;ance bound to serve and obey his Sovereign, &c. It is Enacted by the Parliament of 23 H. 6. That no Man should serve the King as Sheriff of any County above one Year, and that notwithstanding any Clause of Non obstante to the contrary; that is to say, Notwith&rehy;standing that the King should expresly Dispense with the said Act; howbeit it is agreed 2 H. 7. that against the Express Purview of that Act, the King may by a special Non obstante Dispense with that Act, For that the Act could not bar the King of the service of his Subjects, which the Law of Nature did give unto him. This is Reported (unless my Lord Coke had a mind to deceive the succeeding Judges, and draw them in, to give pernicious Opinions) as the sense of all th Judges of England in King James his time, in the Exchequer Chamber.

And now I would ask, these Cases thus sol&rehy;emnly resolved, are they Law? Or are they not? If it shall be said that they are not Law? What Foundation have the Judges to stand upon? Or what certain Measures can they take in giving Judgment, either between the King and his Sub&rehy;jects, or between Party and Party: If so many solemn Resolutions by all the Judges of England in the Exchequer Chamber, are not to be relied upon? If they are Law; then I appeal to all man&rehy;kind whether our Case does not come up in every tittle to the reason of those Resolutions: Whether the Act. of 25. Car. 2. do not bar the King of the service of some of his Subjects; and whether therefore for great Reasons, and in particular Cases he may not dispense with it.

But besides the Authority of this Case, we have the constant practice, that this Statute of Sheriffs has been constantly dispensed with ever since it was made; and if those Dispensations weer not good, then all persons Convicted upon Indictments found by Grand Juries, returned by such Sheriffs, are illegally Attained; then all Pannels of Juries returned, and other Process executed in Civil Causes, by such Sheriffs, was altogether erroneous, and it is strange that no body in so long a time should hit that blot.

Obj. The only Objection, that I hear, is made to this, by eminent men of our Profession, (who freely acknowledge the Authority of these Cases, and the Resolution in them, that no Act of Par&rehy;liament can debar the King of the service of his Subjects, which the Law of Nature gives him, to be good Law;) is this, that say they, It is not the Act of Parliament that debars the King of the service of his Subjects in this Case, but it is the default of those Subjects, who will not qualifie themselves for his service, by doing those things that the Statute requires. But for a full and plain Answer to this, I say,

1. First, We are not now considering these Grants of Offices, as they are beneficial to the Subjects, on whom they are conferred, but as the King has an interest in the service of those Subjects; and it is a known Rule in Law, that among common persons, no man shall suffer by the default of another; much less shall the King be prejudic'd by the default of any of his people.

2. But Secondly, Pray where is the difference between an Act of Parliaments barring the King directly of the service of his Subject, and doing of it by necessary and inevitable Con&rehy;sequence? As, if an Act of Parliament were made that no Man that is Lame or Deaf should serve the King in any Office, though they were otherwise well qualified for it; the King were as ef&rehy;fectually debarred of the service of such Subjects, as though they had been expressed by Name. I know it will be said, that these are Natural defects which the Subjects cannot help, but the others are Wilful Impediments, that may be removed, if they please.

But to prove that this is not so: I ask, Whe&rehy;ther when the Act requires Declarations and Subscriptions to be made, it should be done con&rehy;trary to a Mans Opinion, or according to it? Certainly no Man will say, contrary to a Mans Opinion, for that would be high Dissimulation, and more elude the ends of the Act, than not do&rehy;ing it at all. If then it must be done according to a Mans opinion, it is no more in any Mans power to change his Opinion, than to cure him&rehy;self of Deafness or Lameness. Every Man be&rehy;lieves, not because he will, but because he must believe. Error is a Disease of the Mind, as much as those beforementioned are of the Body. It is true, a Man may seek for Instruction, and use all means to be better informed; and so may a Man, in the other Case, try all proper Reme&rehy;dies to Cure his Distempers; but proper Reme&rehy;dies do not always effect the Cure, and often when they do, there is much time taken up in the Operation: and the King, who is in no de&rehy;fault at all, loses the service of his Subject in the mean time: And if this Prerogative be, as my Lord Coke says, Proprium quarto modo, and that it belongs to our Kings, as he says Omni, soli & semper: The King can be no more debarred of the service of his Subject for a month, or a year, than he can be debarred of it for ever; especially since in that month, or year, may happen such occasions, which afterwards during the joint Lives, of the King that is to command, and of the Subject to be commanded, may pro&rehy;bably never happen again.

Many other Cases of Acts of Parliament might be cited, as 8. R. 2.2. That no Man should go Judge of Assize into his own Country. And 10. E. 3. 3. That whoever has a Pardon of Felony, shall find Sureties of the Good Behaviour, or his Pardon shall be void; which Statutes have been constantly Dispensed with ever since they were made: but I resolve not to heap up all the Cases of Dispensations, but to confine my self to those that were, as they are before cited, the principal ground of our giving Judgment in Sir E. Hales his Case. Only after I have answered some Objections, I have two Authorities more to offer, which I take to be of greatest weight in this Case, and that is two Concessions of the Commons of England in Parliament, acknowledging this power of Dispensing to be in the King.

But first, To answer an Objection or two that I hear is made:

1. Obj. This Act was made pro bono publico, and in the Case before-cited, of 11. H. 7. The King cannot Dispense with a common Nusance; and this Case Dispensed with, would be as bad as Dispensing with a common Nusance.

Answ. Tho this will receive an easie Answer, yet I shall avoid giving it in words or reasons of my own (as I do all along, because I know they would be suspected and misconstrued) but in the words of my Lord Vaughan; whom I cite the oftener, because every body remembers him, and it is very well known, he was never guilty of straining the King's Prerogative too high. In Thomas and Sorrel's Case: The chief Reason why the King can't dispense with a publick Nusance, is said by him to be, because every particular person that has received damage by it, may have his Action, which the King cannot bar. Nor see I any reason, says he, page 335. Why the King may not Dispense with those Nusances by which no Man has right to a particular Action, as well as he may with any other offence against a Penal Law, by which no third person has cause of Action: from whence it follows, that if an Act of Parliament call an Offence a Nusance, from whence no particular damage can arise to a particular person to have his Action, the King may Dispense with such a nominal Nusance.

Now to apply this to our Case, for exercising an Office without taking the Test, no particular person can have an Action, because no particular person can have any Damage by it, (for an Action, as an Informer, is not meant, that being the Case of all popular Statutes) and therefore the King may Dispense with it, before the Acti&rehy;on brought: and in page 341. he explains this very well. No Offence, says he, against a Penal Law could be Dispensed with, if the reason of not Dispensing, were because the Offence, is contra bo&rehy;num Publicum, for all Offences against Penal Laws are such, p.342. though such Laws are pro bono publico, they are not Laws pro bono singulorum Populi (which are the Laws which the King can&rehy;not Dispense with, as will appear at large in the Concession of the Commons, 3 Caroli, which I will cite by and by) but pro bono Populi compli&rehy;cati, as the King in his Discretion shall think fit to or&rehy;der them for the good of the whole. In this Notion the Estate of every Pater-familias may be said to be pro bono communi of his Family, which yet is but at his discretion, and management of it; and they have no Interest in it, but have Benefit by it.

Obj. 2. But it is again Objected, that in Sta&rehy;tutes that are pro bono Publico, in a less degree, the King may Dispense. But this Statute was so highly necessary for the Publick, that it could not be Dispensed with.

Answ. To which my Lord Vaughan Answers in the Case before-cited. p. 344.

All Penal Laws, when made, and in force, are equally necessary, and in things necessary, there is no gradation of more or less necessary. If any Penal Laws were possibly less Dispensible than others, those capitally Penal were less Dispensible than those less Penal. But it is not so: for Coining Mo&rehy;ney of right Alloy in imitation of the Kings Coin, is capi&rehy;tally Penal without licence, but it may be licensed, &c. It is capital to multiply Gold or Silver, by the Statute 5 Hen. 4. c. 4. but may be licensed, as was done to John Faceby, tempore H. 6. The Dispensation with a Non obstante to that Statute may be seen, Coke, Placita Coronæ fol. 74. cap. 20.

Obj. 3. But if the King have a Power to dispense with one, he may dispense with twenty, with an hundred, and so the Statute may become of little force.

Answ. From the Abuse of a thing to draw an Argument against the thing it self, is no Conse&rehy;quence at all; it is, as is resolved in the Cases above cited, a high Trust reposed in the King, and if the King violate his Trust, there is never a one of his Prerogatives but may be abused, to the ruin of his People. To instance in one or two.

1. Every body will grant, that the King can pardon Murther and Robbery, yet if he should par&rehy;don every Murther and every Robbery that is com&rehy;mitted, it were better to live with the Cannibals in America, than in our Native Country; and the Human Laws that are made to punish those Crimes, would be rendered of as small force and effect, as it is objected the Law in our Case would be by frequent Dispensations.

2. There is no doubt, but the King may create any Man a Peer of England, and thereby give him a Vote in Parliament; yet if the King should abuse this Power so far as to create ten thousand Peers, or confer this Honor upon every body that asks it, no doubt it were a total Destruction of the Legislative Power of the Nation. And yet in either of these Cases, (or in any other branch of the Kings Prerogative) if the Judges should judge the King had such a Prerogative, it were an unreasonable Ob&rehy;jection, to say, These Prerogatives may be abused; Ergo the Judges have given a pernicious Judgment.

When we were to give Judgment in Sir Edward Hales his Case, we could neither know, nor hin&rehy;der if we did, any ill use the King might make of this Power, we were only to say upon our Oaths, whether the King had such a Power or no, and for that we had the great Authorities above-cited, and two much greater than those; I mean two se&rehy;veral clear Concessions of all the Commons of England in Parliament assembled, of this Dispens&rehy;ing Power to be in the King; and that not in a sub&rehy;miss complying temper, but when they were in a high Debate with the Crown (especially in the latter Case) about the Violation of other Laws.

And the first of these is Rot. Parl. 1. Hen. 5. n. 15. and it is printed in Rolls Second Abridgment, Tit. Prerogative 180. the Record is in these words, The Commons pray that the Statutes for Voiding of A&rehy;liens out of the Kingdom, may be kept and executed: To which the King agrees, saving his Prerogative, that he may Dispense with whom he pleases; and upon this the Commons answered, that their intent was no other, nor never shall be by the Grace of God. There were as great apprehensions of Dangers and Inconvenien&rehy;cies from Aliens then, as there is from Roman Ca&rehy;tholicks now.

And afterwards, in the same Parliament, [Rot. Parl. 1 Hen. 5. n. 22] when the Commons pray that the Statutes of Provisors, Statutes of the same Nature with this in our Case; (for they were made against the Court of Rome's encroaching Jurisdi&rehy;ction in England;) I say when they make the like Prayer, that these may be put in execution, being admonished by the Kings Answer in the former Case, they themselves insert in their very Prayer, a Saving for this Prerogative of the Kings, and then the King agrees to it.

But the plainest Concession of the Commons of England assembled in Parliament, was that 3 Caroli, upon a Debate between the Two Houses, upon the Petition of Right; it is in Rushworth's Collections, First Part, as it was deliver'd by Mr. Glanvill, in a full Committee of both Houses of Parliament, 23. May 1628. in the Painted Chamber: and that what he says as to this matter, may not pass for the single opinion of Mr. Glanvill, (tho he was a Learned Man) he in the presence of the Commons, addresses himself to the Lords in these words, p. 571. Having thus reduced to your Lord&rehy;ships Memory the effects of your own Reasons; I will now with your Lordships favour, come to the points of our Reply, wherein I most humbly beseech your Lordships, to weigh the Reasons which I shall present, not as the sense of my self, the weakest Member of our House, but as the genuine and true sense of the whole House of Commons, conceived in a business debated there with the greatest Gravity and Solemnity, with the greatest con&rehy;currence of Opinions, and Unanimity that ever was in any business maturely agitated in that House. And then coming to speak of the Point in question, he delivers the sense of the Commons in these Words: There is a Trust inseparably reposed in the persons of the Kings of England, but that Trust is regulated by Law; for example, when Statutes are made to prohibit things not mala in se, but only mala quia prohibita, under certain forfeitures and penal&rehy;ties accrue to the King, and to the Informers that shall sue for the breach of them: the Commons must, and ever will acknowledge a Regal and Soveraign Pre&rehy;rogative in the King, touching such Statutes, that it is in his Majesties absolute and undoubted Power, to grant Dispensations to particular persons, with the Clauses of non obstante, to do as they might have done before those Statutes, wherein his Majesty con&rehy;ferring Grace and Favour upon some, doth not do wrong to others; but there is a difference between those Statutes and the Laws and Statutes whereon the Petition is grounded: By those Statutes the Subject has no Interest in the Penalties, which are all the Fruit such Statutes can produce (that is, to such Informer) until by Suit or Information commenc'd, he become intitled to the parti&rehy;cular Forfeitures; whereas the Laws and Statutes men&rehy;tioned in our Petition, are of another Nature; there shall your Lordships find us to rely upon the good old Sta&rehy;tute called Magna Charta, which declareth and confirm&rehy;eth the ancient Common Laws of the Liberties of Eng&rehy;land. There shall your Lordships also find us to insist upon divers other most material Statutes, made in the time of King Edward III. and King Edward IV. and other famous Kings, for explanation and ratification of the Lawful Rights and Privileges belonging to the Sub&rehy;jects of this Realm: Laws not inflicting Penalties upon Offenders in malis prohibitis, but Laws declarative or positive, conferring or confirming ipso facto, an inhe&rehy;rent Right and Interest of Liberty and Freedom in the Subjects of this Realm, as their Birthrights and Inhe&rehy;ritances descendible to their Heirs and Posterity: Statutes incorporate into the Body of Common Law, over which (with reverence be it spoken) there is no trust in the Kings Sovereign Power or Prerogative Royal to enable him to Dispense with them, or to take from his Subjects that Birthright or Inheritance which they have in their Liberties, by virtue of the Common Law and of these Statutes.

I have the rather cited this at large, because it is a clear acknowledgment of the Kings Dispensing Power in as large a manner as we have adjudged it, and does at the same time vindicate it from one of the most clamorous, the most malicious, but withal, the weakest Objections that ever was made against it. By this Judgment say they, you have cancell'd all our Laws, and given up our Lives, Liberties and Estates, to be disposed of at the Kings pleasure. It is plain, that this is no Conse&rehy;quence at all; for the Commons here in Parliament, at the same time that they expresly grant that the King has undoubted Power of Dispensing with Laws prohibiting things that are not mala in se, but only mala quia prohibita, Laws that are made, as my Lord Vaughan expresses it, pro bono populi com&rehy;plicati; yet they utterly deny, as they had good reason to do, that the King can Dispense with one tittle of Magna Charta, or any of those other Laws whereby the Lives, the Liberties, the Inter&rehy;ests of any of the Subjects are conferr'd upon, or confirm'd to them; for these are Laws pro bono sin&rehy;gulorum Populi, which the King never can Dispense with. And as to this matter, I do not know whe&rehy;ther it will be proper, but any man so sensibly touch'd in his Reputation, may be provok'd to commit some Indecencies. I must appeal to all men that have observed my Actions and Behaviour since I have had the Honor to sit upon the Bench, whether I use to be guilty, in Laws of this kind, to strain the Constitution of them for the Kings In&rehy;terest. First, in such Laws wherein the Lives of men have been concerned, I confess, I have been scrupulous even to a Fault; for in some Cases upon Statutes that had been adjudged Felony by wiser and better Judges than my self, and it was highly for the Kings service they should be so, yet I could never give Judgment of Death, because I could not satisfie my own Conscience that those Statutes were now in force. And in other Cases wherein the Rights of the Subjects have brought in question, how strictly I have kept to that substan&rehy;tial difference taken by the House of Commons, that though the King in Laws of Government, in Pe&rehy;nal Laws of a publick nature, has a power to Di&rehy;spense in particular Cases; yet he cannot Dispense with Laws which vest any the least right or pro&rehy;perty in any of his Subjects; will appear by the Opinion I gave in the Case of Magdalen Colledge, (for the truth of which, I appeal to all that know any thing of the Transactions in that Case) where&rehy;in, when the Kings Right against the Colledge, was endeavour'd to be asserted by a Dispensation granted by himself, I utterly denied that Dispen&rehy;sation to be of any force at all, because there was a particular Right and Interest vested in the Mem&rehy;bers of that Colledge, as there is in the Members of many other Corporations, of Choosing their own Head. So far have I been from giving up all Mens Lives, Liberties and Properties to the Kings pleasure.

I had forgot to take notice of two or three Ob&rehy;jections more that are usually made.

Obj. First, here is a Disability, and the King cannot dispense with a Disability. As the Statute against buying Offices, the King, say they, can&rehy;not Dispense with, for that reason.

Answ. There is the same Disability in the case of Sheriffs, and yet resolved that the King can Dispense in that Case, and the reason in the Statute of buying Offices, or sitting in Parliament with&rehy;out taking the Oaths, is because there is a Disabi&rehy;lity actually incurr'd, and when any person is actually disabled, he cannot have his disability taken off but by Act of Parliament. But in the Statute dispens'd with, in the Case of Sir. E. Hales, there is no Disability actually laid upon any man; but certain things are required to be done, and as a penalty for disobeying the Act, and omitting the doing those things required by it, the Disability with the other Forfeitures are to be incurr'd after Conviction. Now the nature of Dispensations be&rehy;ing, as was shewed before, to make the thing Law&rehy;ful to him that has it, which is unlawful to every body else; it does plainly prevent the committing any offence by that person, and consequently the incurring any Penalty or Disability at all. But in the case of buying Offices the person is disabled before the Dispensation comes, for he is disabled ipso facto by contracting or dealing for the Office. So the true difference between the Case of Sheriffs, and the Case of buying Offices is this, That the King in the one Case can prevent the incurring a Disa&rehy;bility, but cannot purge it in the other after it is incurr'd. To illustrate this by a Case of the like nature, The King may prevent an Attainder, but he cannot purge an Attainder. If a Man has committed Treason or Felony, the King by granting his Pardon may in&rehy;fallibly prevent the Offenders ever being Attainted, but after he is once actually Attainted, the King can by no means take off that Attainder, or purge the Corruption of Blood, but by Act of Parliament; provided the Judge&rehy;ment by which he is Attainted be not Erroneous.

Obj. But it is Objected, that these Laws were made for the Interest of Religion, and all Offen&rehy;ces against Religion are mala in se, and there&rehy;fore not to be Dispensed with.

Answ. I Answer that true it is, all Offences that are directly against Religion, and as it is Consti&rehy;tuted such by the Divine Law, are mala in se, and not to be Dispensed with; and in this Case the Parliament is bound as well as the King; for an Act of Parliament made against Religion in that sence is utterly void, as is instanced in Doctor and Student, of an Act, That should forbid the giving of Alms upon any occasion, &c. But Humane and Poli&rehy;tick Constitutions, though made for the Interest of Religion, as they had a beginning, so they are alterable by the same power that made them; and therefore the breaches of them are in their nature mala prohibita, as was Resolved in the great Case of Dispensations, in 11 H. 7. above&rehy;cited, and instances given; as the King may dispense with a Priests holding of two Benefices: though the Laws a&rehy;gainst Pluralities were made for the Interest of Religion, and the better Edification of the people. So the King may dispense with a Bastards entring into Priests Orders, &c. These instances are taken for Law in that Year-Book.

But to all this I know it is said, that these high Trusts and Prerogatives might be always safe, and sometimes useful, in a Protestant Princes hands, who would faithfully discharge the duty of one that ought to be Custos utriusque tabulæ; but when these Prerogatives are asserted to a Prince who is of a contrary Religion to that Establish'd by Law, there would be always danger of their being abused to the prejudice or destruction of the Establish'd Religion.

To which I answer, that it cannot be forgot&rehy;ten that the Promoters of the Bill of Exclusion used the same Argument: If you leave him King, say they, he will have all the Prerogatives of a King, and those Prerogatives may be made instrumen&rehy;tal to the ruin of your Religion; which could not be denied by the Gentlemen on the other side, who oppos'd that Bill. Their only Reply was, Fiat Justitia ruat Cœlum, it is his right, and we must not do evil that good may come; we must not do wrong, no not to promote the Interests of Religion its self. The same Argument that weigh'd with them to assert the right of Succession to the Crown of England, and consequently to all the Prerogatives together, was the Rule we had to guide us in giving Judgment in this Case con&rehy;cerning a particular branch of them. We must not break our Oath, nor give Judgment contrary to what seem'd to us to be Law, let the Consequence be what it will.

But it has been farther Objected to me, by some of my Friends, that, though I could not in Con&rehy;science have given Judgment against the King, being of the Opinion that I was, yet I should ra&rehy;ther have parted with my Place, than to have gi&rehy;ven a Judgment even according to Law, which might be so prejudicial to that Excellent Religion that I profess; and of which when I cease to be, let me cease to be at all.

I Answer that neither in Prudence nor in Con&rehy;science I could have taken that course.

First, Not in Prudence; for I confess, that saying Omnia dat qui Justa negat; had great weight with me in the Case, and that I was of opinion since an incroachment of Jurisdiction was fear'd, there could not be a greater, nor more dangerous provocation to it, than for Protestant Judges to refuse to give Judgment for a Prince of a diffe&rehy;rent perswasion, in that which we could not deny to be his Right.

And next in Conscience, I could not decline gi&rehy;ving Judgment in this Case; for by our Oaths we are as much obliged to give Judgment one way or other, as we are to give what we think a righteous Judgment in all Cases that come be&rehy;fore us.

It hath been Objected that all this was a Contrivance, an Informer set up, and all but a feign'd Action.

As to this matter, I can truly say that I don't re&rehy;member that I ever heard of this Action, till af&rehy;ter it was actually brought: but in this there seems to be no hurt or inconvenience at all. The Law is as well tryed, and settled in a Feigned Action, as in a True. There are Feigned Actions directed every day out of Chancery, to this very purpose, that great and difficult Points of Law may be settled by them; and why the King might not direct such an Action to be brought, to satisfie himself whether he had such a Power, and if he had, that the people might be satisfied, and acquiesce in it; I confess I see no difference at all. If there were indirect means used for pro&rehy;curing Opinions, or the like, I have nothing to say to it. I stand upon my Innocence, and chal&rehy;lenge all the World to lay any thing of that kind to my charge. My part was only to give my own Opinion, in which, if either by misunderstanding the Books that I have cited, or by drawing weak Conclusions from them, I have erred in the Judgement that I gave; how can I for this be charged as a Criminal? The Law neither sup&rehy;poses, nor requires an Infallibility in any of his Majesties Courts of Justice; it were very unea&rehy;sie Sitting in them, if it did. We can but judge according to the Books that lie before us, and according to the measure of our understanding of those Books: we have not always so much light to guide us, as we thought we had in this Case. We often meet with Cases new and rare, and very ill settled by former Judgments, where we are forced to dig Truth as it were out of the Mine; to compare and distinguish, to skreen and sift, and gather the sence of the Law out of the confusion of disagreeing, and very often contra&rehy;dictory Opinions, as well as we can; and if af&rehy;ter all our Labour and our Pains, we happen to be mistaken, it was never yet imputed as a Crime. The Judgment is Reversed in a Writ of Error, not only without any Accusation, but without the least Reflection upon him that gave it. Nor can a mistake in Judgment be more Criminal in a matter of a greater Concernment, than it is in matters of the least Consequence. It would be very mischievous, and very dangerous if it should: for if in questions of Prerogative, any mistake shall be made Capital on the one hand, when Judgment is given for the King; why succeeding Princes may not be as angry at any mistakes on the other hand, I cannot ima&rehy;gine. And when once affairs are come to that pass, there will be great encouragement for any Man, that can make the least shift to live with&rehy;out it, to undertake those very necessary, but very difficult, and very troublesom Imploiments; great freedom for Men to give Judgment accord&rehy;ing to their Opinion, and their Conscience, and great reliance upon the resolutions of those, who know they shall be sure to pay with their Lives and Fortunes, for any mistake of theirs, either to the King or the People, as either of them shall happen to get the upper Hand. For my own part I thank God I can say these two things: First, That for these ten years together, wherein (with very little intermission) I have Sate a Judge in several Courts, though I may be justly accused of my weaknesses and mistakes, yet I have ne&rehy;ver given Judgment in any one Case against the clear Dictates of my Reason and my Consci&rehy;ence. And the second thing is, That I never gave Judgment in any controverted Point, where&rehy;in I had so many, and so great Authorities to warrant it; as I have to warrant that Judgment which was given in Sir Edw. Hales his Case. And this I say, not to set up that Opinion again in a Pamphlet, which was so ill relished in a Court of Justice, nor to oppose my Sence to the Judg&rehy;ment of the Nation; for I think it is very fit that this dark Learning, as my Lord Vaughan calls it, of Dispensations, should receive some Light from a determination in Parliament, that Judges for the time to come, may Judge by more certain Rules, which Acts of Parliament the King may, and which he may not Dispense with; but I have cited those Authorities at this time in my own Defence, and for these particular purposes: in the first place, to shew,

1. That we are not the first Inventers of this Dispensing Power, but that it has been allowed without Controversie, to the Kings of England in all Ages, that they might Dispense with ma&rehy;ny Acts of Parliament.

2. That if our Judgment was erroneous, and that the King could not Dispense with that Act of Parliament, yet that Error was but an Error in that single Case, and had no such large and mischievous Consequences as is pretended. For that, because we Judged that the King could Dispense with that Statute, for others to conclude from thence, that therefore he had a Power to Dispense with all other Statutes, especially such as confer or vest in any of the Subjects any manner of Interest whatsoever, in their Lives, Li&rehy;berties, or Estates; or that, because the King may Dispense with a Penal Law, wherein a dis&rehy;ability is annexed to the breach of it as a Penalty, and that Penalty not to be incurred before a Le&rehy;gal Conviction, and where the Kings Dispensa&rehy;tion makes the thing Dispensed with Lawful, and consequently prevents any Conviction or Penal&rehy;ty at all: for others to conclude from thence, that therefore the King may Dispense with such Statutes, where a precedent disability is actually laid upon any Man, as there is upon the Mem&rehy;bers of both Houses, till they have taken the Oaths and Tests prescribed, and therefore with&rehy;out question is not in the Kings power to Dis&rehy;pense: I say, these are Consequences which may flow from the heated imaginations of an&rehy;gry Men, but have no warrant or foundation at all, from the Judgment given by us.

I have one thing more to say in my Justifi&rehy;cation, which is, that if I have been guilty of so hainous Offences as I am accused of, where is the Temptation or the Reward? If it was to keep in my Judges Place, which otherwise I might have lost; I can only answer, that if that were the Case, I then became the worst Man in the World, only to keep that, which, it is pretty well known, I was with much difficulty, by the persuasion of my Friends, prevailed with to ac&rehy;cept: and for any other Reward, whoever is ac&rehy;quainted with the circumstances of my Fortune, will, I am confident, notwithstanding the false and idle reports, of I know not what great Re&rehy;versions lately fallen to me, as easily acquit me of having been corrupted by the King, to give a pernicious Judgment in this Case, as of having enriched my self by taking Bribes in Cases between party and party.

All that I have to add more, is, that howsoever this that I have said in my Defence, may happen to be understood at present: yet I could not de&rehy;ny my self the satisfaction of having put in a Plea of Innocence at least; that whatsoever shall happen to me now, may perhaps meet with a more equal Judgment in after-times, since it ought to be much less uneasie to me to lose my Life, if any body be very fond of taking it, than to let the aspersions that are every day cast upon me, to pass in silence, or suffer my self to be transmitted to Posterity, under the Character of a Betrayer of my Religion, or a Subverter of the Laws and Liberties of my Country.

FINIS. ―