.4-,:( a .5’ ‘I . ~‘ "A; f: iv v 5:; ‘ V‘: w .-; . ” V4. (49)‘ 138 T 8 CR LI P Ammadverfins AeBookwrit by Sirpggw HER‘-’3ER’7Z Lord Chief sJuPrice?-“ of the ._But where to find any fuch Grant, we know not. ~ e A ,1 lhave (as I conceive) made it appear in my larger Argument, p.14. that the firfi: Invention of Difpenlations with Laws, began by the Pope, about the time of Innocent the Third, and by our King flew} the Third, in imitation and by encouragement from the Pope; fo that It was not by the Grant of the People, but ever exclaimed againfi by all g00d T113“: 3nd generally -byall the people, and ever fenced againli by a multitude of Aéis of Parliament. It is true, the Difpenfing with Laws hath ever fince been praétiled 5 and they began at firft here in England to be uled only in Cafizs wherethe King alone was concern’d, in Statutes made for his own profit, wherein he might have done what he pleas’d. But it is but of latter times that they have been firetched to Cafes that concern the whole Realm. See my Argument, fal.1;. Hence it evidently appears, it cannot be a legal Prerogative in the King 5 for that mufi ever be by Prefcription, and refirain’d to thole Cafes that have been uled time immemorial, and mufi not be extended to new Cafes. . NOW theft? hath been no fuch ufitge as will warrant the Difpenfing With fuch an A8: of Parliament as is now before us: that of 2; Car. 2. c. 2- The Chief Jufiice Herbert, from the Definition before recited, and thofe two Authorities of Sir Edward Cake in his Cafe of Monopolies, and that other hcezfgyptians, ‘and to go away ‘without refioring of “It, _ . .. . E ‘ -.'s«.‘.?-’‘”-‘9‘'’‘' ‘ \ ~ 1. ‘ . .. I‘. ‘W .2, \) __ '1.-1 '\<‘k‘ ( st ) . . ‘other of I?enaiStatu“tes, frames an Argument to prove,‘ that the Difpenfittion granted ‘to Sir Edward Hales, was good in Law. i Becaufe a Difpenlation is properly and only in ‘caie of a Malum Probi-r» fiitum, he thence infers, thatjthc King can difpenfe in an Cafes of Mala Pra- bilaita. , . . - ‘ ’ r ' ‘ ' - Which isa wrong -Inference, andvthat which [ogicians ‘call, Fallacia a digo fiwngump aaia! aa’ a'zé‘r'um fimpliciter. Becaufe he can difpenfe with fome, that therefore he can dilpenfe with all, is no good Gonfequence. A Itappears by the late Chiefjufiice Vaag/3an”s Reports, ‘in the Cafe of no. zmar and Sorrel, (fo often cited by the Chiefjufiice Herbert ) V auglaavfs Rep. ‘fZ2;l.s;";;. the fourth, Paragraph, that his Opinion is, That the King cannot difpenfe with_ every Malum Probilaitam ; and he gives many Inflances of fuch .Mala.Pro/Jibita that are not difpenfable, fol. 342, and 3'34. parag.4. Therefore the Lord Chief jufiice Herbert fhould ( as I conceive ) regu. larlyfirft have given us the diliincizion of Mala Pro/aibita, into fuch as are ‘dif enfable, and fuch as are not difpenfable; and then have fhewn, that the Difpenfation granted to SirE'aZ2.:2ar:l Hales, fell under the firfl part: but that learned Reporter, ( the chief Jufiice Vaughan ) ( fo often cited by our now Lord Chief A-Juiiice ) in the aforefaid Cafe of Tbomaa and Sorrell, fol. 332. the lafi Paragraph fave one, quarrels with the very diftinétion of Mala»: Pro- ~ Zzibiram, and Malam in [3, and fays it is confounding. From whence I would obferve, and from the whole Report in Tlaomaa and and Sorrells Cafe, that the Notion of Difpenfation is as yet but crude and un— digefled, and not fully ihaped and formed by the Judges. ‘ The Pope was the Inventer of it. Our Kings have borrowed it from them. And the Judges, from time to time, have nurfed and dreifed it up, and given it countenance. And it is ftill upon the growth and encroach- , ing, till it hath almofl fubverted all Law, and made the RegaltPovver Abfo‘. lute, if not Diifolute. . 1' ‘mufi agree, that our Books of latehave run much upon a Difiinétjon‘ -w"z,. Where the breach of ya Penal Statute is to the particular damage of any perfon, for which fuch perfon may have his Action againft the Breaker of that Lavw, theretho’ it be but ' Malam Probibitam, yet the King cannot difpenfe {With that Penal Law ; i according‘ to the Rule in Braéioiz: ~ A i ' ’ Rea} non pots}? gratiaiwz facere bum injurici 65' damno alteriaa. ~ As for infiance: There are feveral Statutes that prohibit one man from maintaining another’s Suit, though in a )ufi Caufe. See Poulton ale pace Regai- é' Regni, in his Chapt. of » Maintenante, fol. . _ ' Now it is held, that the King cannot difiienle with thole Laws, becaulé it -would be to the prejudice and damage of "tliat particular per{on,againfi whom ,the_Suit is fo maintain’d by another z." for there can be no maintenance, but it is to the wrong of aparticularperfon. I r of carrying a Difirels out of the Hundred. . “ i But there are many other Penal Laws,twhere by the tranfgrefiing of them no Subjeét can have any particular damage, and therefore no particular Aétioti for the breach of them. , _ As upon the Statute that prohibits the Tranfportation of Wool, under a Penalty. By the breach of this Law, that is, by the Eitportation of Wool no one particular man hath any damage, more than every other man hath: but it is only againff the Publick Good. ’ And the breach of fuch a Penal Law is by Indictment or Prefentment. . . And the like, where fuch a Penal Statute gives _an Action Popular, to him that will fue for the Penalty, who hath no right to it, more than any other, till his Suit be commenced. . s In thefe Cafes ( it is commonly. held) that the King may difpenfe with fuoh Penal Statutes, as to fome particular perfons, and for fome limitted time, ( whereof they make the King the fole Judge) becauie ,’as the realon is . given puniihable only at the Kings suit’ gssmx i 1H 4.c.6. \ (sell ‘given in the Chief Jufiice V414 I.mn’s Reports, fol. pamg. #2:, Such oflence ‘ wrongs none but the King. K his is now the common receiv‘;d,"iOpinion Diftinétion. And the breach of fuchkind of Penal Statutes, -tare. Caid to be only theKing's damage in his publick capacity, as Supream Governour, and wronging none but himlelf. Lord Vaugli. Rep. 342. parag. 3. 4. . . ' But if we will narrowly _fearch.' to this ~Dif’tin6tion, and weigh the Reafons fo given, we lhall find it is without any.juI’t ground. 4 " v _, . s p " The damage done -to the particular perfon in the Cafes pafl,in the firi’t.part of-this difiinétion, are meerly his own proper and peculiar damage ; and he is intituled to his particular Action for it, in his own proper perfonal Right,.,: and therefore, if he difcharge and difpenfe with them, it is no wrong to..any otherman. He may do What he will with his‘ own. T ‘ « _ ‘ no But the Cafes in the fecond -part of this Difiinétion, are where the ‘King hath a right to the Suit, and theoifence and damage are faid to be to him on . l . . Q ‘. gut are they {'0 ( asthe former) in his ownperfonal right, as his Lands and other Revenues are? or are they to him but as a Trufiee for the Public-lt, for which reafon he is called Creditor Pteme? and may he therefore upon the like reafon, difpenfe with them, or difpofe of them, as a, Subject may do with his own particular Interefis? Again, Shall a publick Damage and Injury to the whole Nation, be dilpenfable by the King, than the lofs of one private man 3 _ - bee: flzpiezztia quomlam Publicgz priwatzk fecemere r a A And therefore in my apprehenfion the King cannot in fuch‘Ca‘fies of ' petflhtions, be truly (aid to wrong none but himfelf; and it is not agreeable to the Definition before given, Utilitate Compenfizm for the King wrongs the whole Realm by it. Where. if he grants 9. Dilpenfition with a Penal Le“?‘rr°f.the.fitfi fort ‘-25 this difiinfiion. he onlyswtcnes fame rpartisular P‘-‘F’ ‘The-Cales“ and ‘Authorities for Difpenfations in our Books that were gran. ted in ancient times, will generally be found to be only where the Penal Statutes were made for the King’s own proper intereft and benefit : As his difpenfing with the Statute of Morrmain. For in fuch Calesits was to the King’s own lols only,in Cafes where the King mightgby Law have given away his Lands . or Services. So the King may in his Patent of Grant *_L,ari;ds, aifpenfi; with tl1e$tatutes that require there {hall be mention of the true Va. lites of them. ' And by a Non-olzjlante to thofl: Statutes (which is now ge- nerally ufed ) the King does in effect declare, that it is his pleafure to grant thole Lands, whatever the Value of them be more or lels: and the Statute does by exprels words lave at liberty to the King in that Cafe. ‘ The King is not a Trufiee for others in fuch.Cales, nor can thele Dill penfirtions be faid to be directly to the damage of the Publick. And fuch Penal Laws as meerly concern the King’s own Revenue or _ Profit, may iuflly bethought to be intended to be made only to ‘put the King’s matters into an ordinary method and courle,and fo fave the King alabour,as the Lord Hobart lays ; and fo prevent the Kings being furpriz’d or miFinform’d, when Patents are gained from him, and not defigrfd to tye the Kings hands,‘or to relirain his power: as out of all doubt was done and intended by the Law-ma. kers in our Aét of '2; Car. 2. _ - ,_ But in all the late Cafes and Authorities which we meet with in our Books concerning Nan-017/}anite’3“,, and Difpenlations, as in the tifiw“: of King sHcM‘] the Seventh.» 3111 lb downward to this day, we lhall find them praétifing up-1 on fuch Penal Statutes as tneelrly, Concern the Publick Good and Benefit, and the Laws Of f1Cl'l 3 nature‘, by the breach of which the whole Nation fuffers: Wliile fome particular perfons,it-,,n1ay be, by giving a large Fine, or a yearly Sum, obtain the favour to be difpen"s’d with and exempt from a Penal Law, while all other?» continue to be bound. by it. “ s S proper I Alsifor Examples: Where ,acStatute forbids the Exportacioh lofi Who} 0; of Cloth undyed or undrefsid, under a‘ Penalty ; fuch a'Law is grggtiytfor ' the«Publick Good, and it takes care that our own People {ha}; have Em. plo ment and Mpaintenancei‘ Yet this is Rich a Law’ " ' recZiv’d Difiinétion, the King may difpenfe with, theiie Elhseiiicgfohilnicipgiutflfi damage to one man more than to another, “by breach of fuch apL§vv 31.‘ though it be a mighty damage to the whole Nation : For by fuch a Dff’ en. lation, the "perfon F0 diFp“ens’d‘ with to Export ifuch White Cloth undped will have the {ole Trade, which ‘before, the making of that Penal Statlhte: ‘Was equal and common to ‘all. I wiih the Houfe of Commons would en-~ quire what vafi Riches’ have been heretofore gotten by fuch as have obtain’d i thc’DiFpenFations withthis Penal Statute, befides th= S ‘ch ‘d ‘h * Crown for them. ~ Theft: aremeer Monopolies. 9 Llms cy Pal L0,: 6 _ In fuch a Cafe it may rightly be applied, That Sin t it tb ‘I1, I I1, Law. ‘It had beenbetter for the Nation, that fuch Laws awcere oiigfgii. nijattlei being no better oblerv’d: ‘for here again the Difpenfation is neither Unzam, ‘nor Neceflitafe penfizta. Look intothe Cafe of T/Jamar and Sorrell, and you will find few or no Cafes of Difpenlationsicited out of our Books, but of the time of King Henry the Seventh, and much more of very late times: To that the ill praéticc is {till improving and flretching. it . 1 The Lord Chief Iufiice iHerbert, in the next place, pag. 9. proceed; to mention the great Cale of 2 H879. 7. a Refolution of all the Judges in the Exchequer-Chamber, upon the King’s difpenfing withthe Statute of 2; H, 6. icapt 8. That no man fhoald be ‘a S/atrzfil above one year. " This is the great Leading Cafia and Authority, upon which the main firefs is laid to jultifie the Judgment given in Sir Ea'ward.Ha1e: his Cafe. y I would avoid repeating what I have already To largely {aid to this Authg. ruri , to which I mull refer, my Reader, by which I hope it ‘is molt evident- ly made out, that t he. King neither hath," not neverhad any fut’: Right or ‘Power to eleét Sheriffs: But the right of Eleéting was anciently and origi- nally belonging to the Freeholders of the feveral Counties; and fince it was uniufily. takenv from them (as they have ever been on the lofing hand) it hath been lodged in‘ thé” greaf-€‘Ofl‘i‘cers of the Realm, as the Lord Chancel. I Ior, LordTreafurer, Lord Privy-Seal, and theJud‘ges, c§'c. as appears by [115 « feveral Statutes. ‘ I And they are to make fuch Choice every year in the Exchequer, on ada he Statute for that purpofe. So that the Sherifls are by thofl,-’ appointed by t“ _ _ . Statutes to continue in their Oflices for one year only. And the King cannot hinder fiich Elet9tiOn'. -i ' Only by his Parent or Commiifion to the Sherifl‘; hath he ufed to fignifie to the Sheriff himlelf that is {lo chofen, and to publilh to all others, who the perlbn is that is fo chofen.‘ This is all the ufe of the Patent; but it is the Eleétion of thole great Oflicers that truly vefls them in their Of. S fice; a Sheriffs continuing in his Office for longer than one year, contrary to the feveral Statutes lo forbidding it, the King hath fo done it by virtue (not of his Prcrogativei) but byya fpecial A6’: of Parliament enabling him to do it, for fome extraordinary occalions, ‘and for fome limitted time only. 5.33 for thisthe Statute of 9Hen. 5. Cap.;‘. in the‘Statutes atllarge, and my 1a1~g¢p Argument, fol. 34- p _ _ The truth is, the Power of Difpenfing is originally in the Legiflato,-s_ He only can difpenfe with a Law, that can make a Law; The Power is _equal ; and the Legiflators can confer the fame Power upon the King or any others, for fome convenient t1m€:,‘é‘c. as appears by the laft Inflaiice» of the Sheriff, and divers other like Cafes, mentioned in my fore oing Ar uritent, where I havepalflo obferv’d many other things upon that Re olutipn oil’: H. 7. concerning Sheriffs. V V H A 1 P The And it does as clearly appear, that when former Kings have difpehsrd wing I I an-’”‘° , . Pag. yo; 1,‘. Coke, by that one Initance of his in ( 54- ) The‘ Chief jufiice Herbert fuppofles the Mifizhiefs recited in‘ the Preamble: of that Statute of 2; Hen. 6. cap. 8. concerning Sheriffs continuing in their Ofiices lon ‘er than one year,‘ to-be equal,’ if not greater ,( as he judges) than the ifchiefs recited in the Statute‘ of -2; Cézr. 2. by Papifrs being in Offices. And from thence, I prefume, wouldinfer, that the Cafe of Sir Ed- ward Hales is notfo‘ fatal in the confequence, as the'fCafe of a Sheriff I “may appeal to‘any ordinary “Judgment,- and‘ to the ‘ fad Experience and Tryal we have fo lateiy had, and to the defperate Danger we were R) lately in ( from which Alrnighty'G‘od, by no leis? than‘ a Miracle‘ hath in great‘ mercy deliv'er’d the Nation ) whether the Mifchiefs that cou_-ld_~ any way poi- fibly arife frorfi th‘e.diip‘enfing with the former, (I mean, the Statute 'con- - parable to the infinite Mifchiefs arifing from puttin I cerning Sheriiis )be com Papifis into Oflice, Rights. , . _ _ ._ . g The Chief }uf’ti“ce, upon thofé words of the Statute eonce1'ning‘Sherifi§ ‘éoiz,-. T7:at_nes‘1§‘J?;nsobfs‘ante“fi122fl make them gone, infer,s,fth”at thofe ‘words ‘do ‘ew. that ‘the‘Parliame1itwhich made "that Act concerning SheriH§,was of opinion, that had it not been for that Claufe, the c and int‘rufiing'them with Four Religion, and all our Civil withthat A‘(9:i"l\'en-obflavite ' . . , p A Anfiu’. This to *me_feems a {trained Inference, and that it is very far; from ihewing any fuch ‘Opinion in that Parliament. It rather fignifies, fthatflhad not the Parliament inferred that Claufl: into 'the'A8c, the King ‘might have done again as he had frequently praétis’d before, ‘ npon that Statute :‘ which ill practice they e’ndeaVour’d to preventfor the fu- ture, not approving the ‘_praéi:ice,nor owning the power of doingtit. Ex myr- lzéc nieribzte bome arizmtzer Leger. A good Law ,‘r'a_th'er condetmns a‘ contrary‘pra§- Etice before uféd. ‘i “ A ‘ ‘ - ' i ’ ' I heartily defire ms Reader (‘ as Ihave done in’ my foregoing larger Argu- ment) carefullyfto o ferve and examine of what fort and nature thofe feveral Cafes are, which the Refolut_ion~ of tfhe_Cafe of 2 Hen. 7.‘ urges to warrant ”th’atiRefo1’ution.. As thofe Cafes concerning ‘t,1je_~truej Value of Larid$,, which the p V ; that ecencernitiige theflbippih “of Wool to a’ certain Staple, ' : and let the Reader iudgehow vaft a di erence there is between thole Statutes in the nature, and import, and reafon of them, and this weigh-r ty important Statute now before us; and how little that Refolution’ of 2 H. 7. can be warranted by the Cafes there cited, being of foinferiour and minute a Confideration, in comparifon of the principal Cafe. ‘ ' It‘ is true, Sir Edward Coke (if the twelfth‘Rep'ort, which g035 by.‘ his name, be. truly his ) hath fince that Refolution given in 2 Hen. 7. found out A‘ new and ‘diflizrenffiteafons and Arguments, which are not urged, and there- fore Iprefume neverfo muchas thought on, at that time, by the twelvejudges who gave the Refolution in that Cafe of ‘zHen; 7.. ' Thus iays Sir E. Sezmzdjr, in his Relation of the Religion ufed in the Wefi rts of the World: Thofé . . of the Roman Religion made their Great- A nefs, ealth, and Honour, robe . _ thevery Ruleby which to fquare out the Canons of their Faith 5. and then did fet Clerks on work to deviie Arguments to maintain them. a A ' ' _Sir Edward Coke fieems‘ to iufiifie that Refolution concerning Sheriffs, from tins ground; "0iZy- Tlmttbe King‘ 34:5 a Soverdign Power, to command em)’ 1M3‘ §5"€5]'€5?3 10 ‘fifize ~52»: ‘for the Publick Went. ‘ Anditbze it (fays he) fialely and in- .fl’P?”'45§' annexed roibzlr Perfon, and that tbzlc Royal Power cannot be re[z‘mz'n’J 5} any /13 "f Pdrliéwem”-4 ‘r2 Rep. fol.'18. '— ’ A’ A - ' ‘ 2 _“15 not filelr annex’:-1 to the King’; perfon, appears by the feveral Acts Cf Parliament which I have cited to this pur ofe in my larger Argument. f”l- 3.4- Where 31¢ Power of Difpenfing with ome particular Acts, was gi- ‘° She Biothe Parliament, and by him accepted for fame fbnft time-. And the . 16 Parliament have in divers Cafes themfelves exerchfd thisveryfiower. / e 2 3 - - ~ s ‘ Judge iof the Weight“of' the Reafo the Cafe he puts of Purtvejance, 12 Rep. . Q fial‘. 19. Ould otherwife have difp‘ens’d 4v'iz.. granted Difpenfations ns faid to be given there by Sir reaper: , fa]. r9. which he fays‘) cannot ‘The’ irtaken‘ the King, flo not *by '- of 17;uf.liament. A b r y l . r . _’ _ y ;.Y._et we have lived to Ice ‘it ‘lately taken awayby Aéit. ofaflarliament; which A in the ;Iudgmejn-t of a :.Parliament ( whiohis ofzthe highefl Autliority in Law ;) a may therefore be taken from -the King. ~ i r L t ,_ is ;he_,l§i1;;g-sin truth reflzrainkl from commanding. his Subjeéts ferve s hinilsfqr the Publifik weal, either by -thoE:.Sta~tutes that-rrdi{ahle.Sheri"fl's'rtocon-t tirfue in their Offices longer than one year, or by our Statute of at .Car..2.»'that djfables [,opifl1.R6Culanetsrto:bear pub1~ick‘Oflices.: Becaufe fbme very unfit, -un- ll é'3p_able,,_ and dangerous iperlons ‘ate tlifizbled to bearOffices of Trult and Powefz :_( and-~this by _ the K'1;ng‘s own conflent to the 'A‘¢St,~ l -and by. the advice ofgthe Jgl'f€3.txC_0L1;l1Gil the 'Pa.rliah1ent,.) and indeed of the whole Realm‘? r ’ Does the King by -this -( which»the.]udges mifcall a ‘RCfiraint.)' want for t c‘h0.ic_e.of fit ,.pe1’;f0I1S~t20. -fer~v.e in Offices ? "-Doth the Pubiick Weal fuiier by this RL6fif3i;flC'? is it not rather prelervid by it? Hathsndti the ;King*-Broteflant Subjeéts enow to bear Oflices? And are Popilh Reculants (who account Prdtefiants Hefeticks, and to be rooted outland dei’troy’d, ‘and withwhom they 1.10.ld 15:10 Faith is to bekept, and againfi rwhomt-they have ;been continually plOtti‘I1g eMifchief ) are thefle the fitte-Pt to beintruf’ted ‘with who Defence of the Protefiant Religion, and with our and Eflzateh, which are 411.com- cenrd, more or leis, inevery ;BublrickiOflice and ']3rufir? V a l i And are thole perfons (the Papifis) that have a dependance upon the Seeof Rome, and .a Forreign Polwer, fit to be intrufied with the power of the 1?«la,tion,, -;W~i+tl1 the Militia, andthe -Sea-Ports ?’ t t i . ii. 15 —I1j0F this to commit the Lamb to the cufiody of the Wolf? . ~ 7' -Th‘? A51 thatydifables Papifls :to bear Offices, cannot be jufily ltfaid to be a Rdlralnrt UPOII the _that.:e);preffion finunds and takesthe matter. -by the wrong handle. It rather imports the King’s Declaration and Refolution, :2. F czjzpiaoyhonc rinxafifliées. and Plhdes e&"Ti3i1fi, lggty 1ach_r_a{s_ are moficgpahle and fit, and "will ainofi fainhzfinlly anfwer~the great Ends for which they are fo intrufled, that is, the prefervaticin of the Prote- Religion, iwhiachy isthe t_rue“Engli{h Interefi. . - ..*-.].l%_£s13.§1 thitmgmes w:‘rth-__the‘Ru-les' of the Summon Law, That: if'~a'n»Ol£o‘e, t be grmmd 036 is L1-fil.d%'€%',.;£h.Ct.(G'l‘3i'lt is. =atoid,.'.:thoug:h i granted by the King himfelfi “Of this I have treated more largely, in my Argument, 01- e7» . . f '13he Lord Chief Jufiice Herfienr,‘ pag. =16. asks the Qxeflion, Whether Io many folemn‘ Refolutions of all the Judges of England in the Exchequer- Chamber, are not to be rely'd upon for Law? And I anlwer, That if they were ten times as .-many more, yetrthey,-arenot to be rely’d on againfi many exprejfé pofitlve A&:$ 0fPar~l1tament directly to the contrary. For what words could the Parllammt Life more emphatical and exprefs, aird more to the pun. Flore, than by laying, That a Non-objfante, or a Difbenfation, «or a Grantof fiche thing, (prohibited by that Law ) lhall be abfolutely void, and ’z'pf& fmfhzadpldged avoid, and the per»fonmade uncapahle to take? And is not a Igdggnentf in gfiarlianaent, and by Aét of Parliament, ,of.thC higher} Augho. r1 y . s y . ..BItt(. lays the Chief Juflice, fol. 16.‘) the confiant .pra&icc hath been to difpenflé with the Statute of Sherifis. I anfwer, It hath alfo been a very frc. qirent plfafiifie too for die King, to make fuch rfonsfiheriflé, as ware none of the number nominated or cholkn, as afore aid, by the Chancellor, Treat- fmer, Judges, and other great Oficets; and it paffes for currant that he may fo do, though it be. a. vulgar Ertour : For it hath been refolv’d by all the twelve Judges, to be an Errour in the King. See Sir Edward Coke’s 2. Inflit. or jldagaa Charm, fol. ggg. and yet it is pra&is'dto this very day. i _".The Chief Jufiice, pag. 18. {eems to cxcufe Popilh Recufants, «for not qua’- lifying themfelves for Offices, by taking the Oaths and the Tefi, e§'c. for that 39 mm ( lays he) hath it in his power to change his opinion in Religion as 13¢ plegfegh , and therefore it is not their fault. It is an Errour of the mind, (#4. Anfw. ,_ W, ,,.,_,?.,.,,,,,,.,a...+_...—... . .,..i~. ..,..... ~clar’d'unfit.* I- ~_ L T . ’ . I '2 it - ‘ :xPgzge*2o, é_-"21. The Chief:]ul’tice VaugZ7d7§"1S l3fOught"i'I1§}‘»’3f‘gl1jfig for the‘ V l 56 ) _ = flnjliu. Hercis‘ no occafion taken to find fault with them a for their Opini-'4 on ; lerthem keep their Religion flill, if they like it fo well, who hinders .thBfi1:'? 7 This ‘A6t'o'fi 2”; Car." 2; impofles no Penalty upon ,t‘hem“for their;-O- pinion; ' But isircthefei tany’ neceflity of itheirheing in Oflice's’?~ ' Mull they needs be Guardians of the Protellant Religion ‘?~T he "Penalty t'JpOI1 t*hem,by+’ ?.thl$:,' is net for their Opinion’; but for. their prefun1ing‘to«undertake Oliie ces;and.rufis, tforwhich they are by King andiParliament§ Kings Powerrof:Dif'penfing' with (iilflfllllllllfll) Nulances, _({~_~asi he is pleasfd to, call ar'itlxdifli-ngui‘lli-Nul3nces). The word ( lVbminal_*) “(‘.;ispa}_th'ere under- flood -)iiifnports,' that though a Parliament‘declares anything ’tofbe’:aiNuf‘mce ,2‘ t( as -fometiines theyido in Aéts of. Parliament, itofrender them ‘indifpcnlable . which .yet in its’ proper nature would not otherwifi: be lo c_oi_1ceiv’d‘to be ; that luch a Nominal.Nufance (as he holds) _may however. be di-lpens’d with by tfhcliing, thoughmegularly by Law the King may not! dilpenle with any Nu ‘ance;,.- ‘ ,' 7; ‘ . ' . L‘ I. , . 2 ‘fA»fw. Shall any fingle or particular perfon; though a Chief Jufiice, pre- ,,[ume-to*..call thata .m.¢‘er Nominal Nufaince, 3 Parliament by afolemn ,A<5t and Law have. ad)udg’d and declar d to be a real Nulance‘?‘”Aie we not_ all concluded by what‘a'Lla?.w lays ? This Arrogance is the Mifchief now écpm. V ‘ pl ’, grip » =. ‘t I ~ .v ‘ . ‘“ A : ’,The'.Chief]uflice=H&rbn-.t,.pag.. 22; at the lower end, lays, That from the abule of a thing, an Argument cfannotibe drawwn.a‘gainl’t the thing itvlelf. ’I‘ agree this is regularly. triiei; ' yetiwehave an -InI’tance_tothes contrary iiitlie ;ScriptuI,‘e;, in‘ thatpoint of the.T.Braz.en .§‘ei-peat. «But in ouifrcafe the abufl; doth at-i{é fromthe very nature of theltlung it felt, “from the conflitution of ' For -the King praétifés no more in dilpenling, than what thele Relblutions of the Judges allow him to do byithis pretended. Prerogative. The -Errour is inth9Ec?tundatidn.;i. . _ s. ' ‘ _ They -have made his Powerto un11fmtted,:: either as to -number of ‘per. fonisfor a‘s'to the time’ how long the Difpenfation fliall continue. Sir Ed.‘ » ward Coke lays, andlo the other Books, That the King is the lble Judge of thefe. ‘ ‘T :1)Tec Ildetw Rerum, nee Tempoi'I¢ Pommr. % . The tlhief ' 'HerI:err, fol: 24; cites two clear Concefiions ( as he is pleas’d< to call them )2 of all the COI'Ill‘I1‘OnS. of Efzgland in Parliament, which‘ ' he eiieems much greater Authorities than the everal Refolutions of all the twelve Judges. ~ T - . T p g ‘ t 2 But how far thele’ are from Conceflions, will eafily appear toan indiflerent Reader. a They are no more than prudent and patient avoiding of Difpuces with the feveral Kings. _ And there are multitudes‘ of the like in the old Par. liament-Rolls. , _ T, s It is but an humble clearing of themlelves from any purpole in genera], to abridge the King of any of his Prerogatives, ( which have always [gen mu. chy and tender things; ) but it is no clear not direct allowanm of that dill penfing there mcntiofiid, to be any fuch Prerogativein him. - However, I am glad to Ice an Houle of Commons to be in fo great requell with: theJndgcs. ,It will be fo at fonie times, more than at others. i ’ * Yet I do not remeinber, that in any Argument I have hitherto metwith a Vote, br Order,.or'0pinio'n of the Houfe of Commons, hath been cited for an Authority in Law, ‘before now. Will the Houle of Peers allow of this Au: thority‘ fox-‘Law ? 2 r‘. - V It will be laid, at T hat‘ this is but the acknowledgment of Parties conceijfd in Interefl ; which is allowed for a good Tellimony and firongefi agatnfl! themfelves. , . Anrv. I a ( 57 ) , flnfw. .I do not like to have the King §and,his'Peop'le' to thave, dividedsi‘-In« terefis. Prerogative and the Peoples Liberties, lhould not be look’d up‘on.a.as C)pp0fit€S. The Prerogative is given by Lavii £0. theléiing, the hatter go, engblc him to protect andiaprefierve, stheiSt:hjer£ts Rights. 'I~fl1€r6;f@t:¢.,~i;:_n,~_uly mm. cerns the People to maintain Prerogative. . I could cite leveral?Parliament-Records.wherein ‘Hank , mons have been forced to fubtnit themlelves, and ‘humbly ‘beg, pardon~:o£:hg P’ ;King, for doing’ no more than their Duty, meerly; to Lavert; l1i£i,«dl&fplea_fi11;e_ See the Cafe of Sir Thomas Haxey, whom the King adjudgidaiTt*aytpr,1f;nr exhibiting a Bill to the Commons for the avoiding ofrthe outrageons,;.Expe11- ”ces of the King’s Houle 20 R.2. num. 14,1g,16,17, and '2;;Jand the Cortmtmis . ~- were driven t0. difcover his Name to the~King, and». the; vuholefloulfe inn _s mournful manner craving pardon for their.en'tertainingnfthat,Bill. P t ; , No doubt, as good an Author-itysagainlt the Conzmmsifgtsfo l3tw.c.ily med- ling in a matter fo facred, and fo far above them. Yetiaiterwards, ~I\ Hmna. \. «num. 91. that Judgmentlagainlt Sir Thomas Haxey was reverskl. Asfor the diifiinétion, pag.,3os. of a Difahlity aétually _incur1’d*beforti the medling in an Oflice, and where the Difability is prevented by the coming nf a Difpenfation ; I anfwer, That its being fo prevented, is but Peticio Prizzczpii, and a begging of the (Qtefiion. And to this ,Dillin&ign»I.=,htt_ve ( I think ) ful- ly fpoken in the foregoing Argument, fol. 40,. s y , The late Parliament, in making this A61: of 25' Car. 2. had, no doubt, a profpeét that probably the Crown. would dilcend upona Popilh-Succefior; Land they levelled this A89 againft the Dangers that mightuthen, bgfal,QgE;R_e: ligion and Liberties, and they thought .‘it_aIgoogl Security ,1‘ 'Bhtfit_ nilhed and come to nothing, by occafion o_ftl1isJudgrn;;nt.in,the1jC§a jqf Sir Edward Hales. And that mull be jul’t.ified,by.a (H4; . As to the Objeétion that the Cjlliefjuftjqe fancies; h3\f_¢,fibQ6;l1$I§3a(Jlf P 'aga.in;1t whims Or advice given Mm that he fl1quld.Fat116r.,l2a~i¢ P}"1?‘2e,Ql‘LWét4l},.§i};s .plac;e,_tlia_n“-tohave given ajudgmentfo p_re}u_.dicial to Erg- sfefies, pag- 33. t “ l P t P‘ This, I lay, that for my, Part I lliould never have advis‘d himttl) have ‘parted with his Place,‘ much lels , to have given a }udg,1nent_,agaiqi}E .,};j,s own Opinion. But let his Opinion be what it Was, yet ‘féeingi the clear intention of the Makers of the Law, contrary to that his Opinion, and knowing the defperate efi°e<9ts and conlequences that would follow upon: tlifpenfing with that Act, ( for we were upon the brink of deflruéhon by it)‘ and taking notice (as this Chief jufiice and the tell of the Judges needs‘ mult) that the King had firlt endeavour’d to have gain’d a Dilpenfing Power in this matter from both I-Ioules (which was the fair and legal courfe ) -and that yet thatvery Parliamentwhich out of too great a compliance with thofe times, had over-look’d fo many Grievances, and conniv’d at the King’s taking and collecting of the Cufioms, (though in truth the Collectors, and all that had any hand in the receiving of them, incurr‘d a Pnemunire by it) not to mention the ill Artifice ufed in gaining the Excife, yet that‘Parliament of the King’s, boggled at the Difpenfing with the Aft of 2 ; Car 2. knowing the mighty Importance of it. And though they could’ not but take nqice that {o many Judges at once had been remov’d, becaufe they could not {wallow this Bitter Pill, and others I brought into their places, as might be juftly fufpeéted to lerve a Turn, and the King’s Learned Councel could not at firfi find out this Prerogative to do his work with, till fo many ways had been attempted, and all proved ifl€ffC&L1- a1; fure in fuch circhmflances it had been Prudence, nay the Duty of the Judges, to have referr’d the determination of it to a,Par11am€nt; and the ra- ther, becaufe it was to expound a Law newly made, and the confltquences fo ‘dreadful, and the intentof the Law-makers foevident. And this. hath been frequently praé’tis’d by Judges, in Cafes of far lefs dith- culty and concernment. This I have alfo enlarged upon in my Argument, pagd 26, Q T Objeff. _< WVL A.‘ (58) Ogefi. But it might have been a long time before any Parliament had been call . Anfw. We ought to have Parliaments once a year, and oftner if need be; and cadet» prafiamitur eflé men: Regzk, gm: Legit; and we then ftood in great need of a Parliament even for the fake of thisvery Cafe. . And theie hafiy Judgments are one ill Caufe why Parliaments meet no oftner; the Work of Parliaments is taking out of their hands, by the Judges. And it is the Interefi of {lame great Ofiicers, that Parliaments lhould not be called, or elfe be hafiily prorogu’d or adjourn’d. As to the point of the feigned Aetion, which the Lord Chief Juiiice feems to Iconceive he miflakes the force of the Obieétion. Feigned Adki- ons may be uiéfuit; shut this Aétion againfl Sir Edward Hales, is fuipeéted not only to have been feigned and Co-vin between him and his Ser. vent and Friend, bmrfiwas feignedly and Effldy profeguted, and not heartily and floutly defended. _ P Like the Praazice of co who lay for a Prize, they feem to be in hegood eamefi, and look very fierce, [ before-hand not to hurt one anot r. .Q_ui cum ita pugnalvat tanquam _/E wincere NaI.’et eigre, eff zlerviéfm, proditione ficfz. This folemn Refolution was given upon a few lhort Arguments at the Bar, and without any at the Bench , and ;upon other Reafons ( as Ihave heard) which were then made ule of, are now given by the Chief Juliice ; but the Times will not now bear them. After all, I intend not by this to do the Oflice of an Acculér, nor to charge it as a Crime. But as I think my {elf bound in Duty, on the behalf of the whole Nation, of my lelf, ( though a fmall part and member of it) and of my Friends, I humbly propofe, That thejudgment given in Sir Edward Hale: ins Cafe may, after a due Examination, ( if there be found caufe) be legally Rcverfd by the Houfe of Lords, and that Reverfil approv’_d of and confirrrfd by a {pedal A63: of Parliament. FINIS. RARE KD 8607 . D5 A7 1 689 «man or union - oouma ELL SPC FIRE RARE KD8607.D5 A7 1689 O1 O-007248659