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The King’s Inalienable Prerogative - Joyce Lee Malcom, The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, vol. 2 
The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, 2 vols, ed. Joyce Lee Malcolm (Indianapolis: Liberty Fund, 1999). Vol. 2.
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The King’s Inalienable Prerogative
John Brydall, The Absurdity of that New devised State-Principle
[John Brydall, b. 1635?]
Of that New devised
That in a Monarchy, The Legislative Power is Communicable to the Subject, and is not radically in Soveraignty in one, but in More.
In a Letter to a Friend.
Ὀυκ ἀγαθὸν πολυκοιρανίη, εἷς κοίρανος ἔστω
Haud Multos regnare bonum est, Rex unius esto.
Printed for T. D. and are to be sold by
Randal Taylor, near Stationers Hall, 1681
This essay in the form of a letter has been attributed to John Brydall, the author of some thirty-six published treatises, most of which dealt with the law.
Little is known about Brydall’s personal life. He was a native of Somerset. He was educated at Jesus College, Cambridge, and Queen’s College, Oxford, then went on to Lincoln’s Inn. While there he served as captain of a foot regiment raised for the king by the Inns of Court. He seems to have been noted for his pike exercises. Brydall later became secretary to Sir Harbottle Grimston, who served as master of the rolls from 1660 until his death in 1685. Between 1673 and 1700 Brydall published numerous treatises, for some reason all anonymously. At his death he left another thirty treatises still in manuscript.
Brydall was a champion of prerogative and absolute royal power. The emergence of the Whigs and the challenge of the exclusion crisis provoked him to write on political, as opposed to legal, theory. In the tract reprinted here he stoutly defends the absolutist concepts of Jean Bodin and the views of Sir Robert Filmer, whose Patriarcha had been published the previous year. As Sidney and the Whigs harked back to the principles of the “good old cause,” Brydall was among those who harked back to the principles of the absolutist defenders of monarchy. Both Sidney and Brydall demonstrate the longevity of the old quarrel as it resurfaced in the new political situation of an impending Catholic succession. “The Absurdity of That New Devised State-Principle” appeared in only a single edition.
YOU cannot but remember, that at our last Meeting, there happened betwixt us, a hot dispute touching Co-ordination, occasioned by your reading the day before a Tract, not long since exposed to publick view, and Intituled, by the Author thereof, An Account of the Growth of Knavery, &c. In a Letter to a Friend,1 (In Answer to Two Pamphlets, the one styled, An Account of the Growth of Popery and Arbitrary Government in England;2 The other, A seasonable Argument to perswade all the Grand Juries in England to Petition for a New Parliament);3 In which said Tract there are some Passages that seem very distastful to your Palat, but more especially that Sentence (pag. 44 & 45.) concerning the Legislative Power thus expressed by our Author.
“The Making of Laws,” sayes he, “is a peculiar and incommunicable Priviledge of the Supream Power; And the Office of the Two Houses in this Case, is only Consultive or Preparative, but the Character of the Power, rests in the Final Sanction, which is in the King; and effectually the passing of a Bill is but the Granting of a Request; The Two Houses make the Bill ’tis true, but the King makes the Law, and ’tis the Stamp, and not the Matter that makes it Currant.”
This piece of Doctrine [say you] is very strong and Heterodox; for it contradicts, not only your own darling Sentiments, but also the opinion of many other Persons in this Nation, who hold, That the Legislature resides not in the King only, but in him, and in the Two Houses of Parliament; so that you, and those other Persons fancy a Mixture, or Co-ordinacy in the Supremacy itself, making the English Monarchy a Compound of Three Co-ordinate Estates.
This same opinion, say you, is founded upon the Authority of the Law Books, which tell us, That every Statute must be made by the King, Lords and Commons; And if it appear by the Act that is made by Two of them only, it is no Statute, as appears by 4 H. 7.18.b. Co. Lit. 139.b. Co. 4. Inst. f. 25. Co. 2. Inst. 157. 158. 334. Bulstrod’s Reports, Dominus Rex & Allen, v. Tooley.
These same Authorities I allow as well as you, but then it must be with this distinction, that the Two Houses of Parliament, are in a sort Co-ordinate with His Majesty Ad aliquid to some Act, or Exercising the Supream Power that is to say, there is an equal Right in the King and the Two Houses of a Negative Voice in respect of new Laws to be Enacted, or old to be repealed. But if you intend by Co-ordination (as indeed you do) a Fellowship with the King, in the very Supremacy itself, you are much beside the Cushion, and truly in the wrong side of the Hedge too. Because it is repugnant to the nature thereof, and a clear Contradiction, If it be true as it is, that the King is our only Soveraign, there can be no such thing, as a Co-ordinate or Co-equal Power; If they be Co-partners in the Soveraignty, in what a fine Condition are we, that must be obliged to Impossibilities. For we must obey three Masters, Commanding contrary things. The Two Houses may as well injoin us to do them Homage, which is, and ought to be performed only to the King, as to challenge a Corrival Power with the Soveraignty of Royalty. ’Tis true, no Law can be imposed on us, without the consent of the Two Houses, yet this doth not make them Co-ordinate with their Prince in the very Supremacy of Power itself, but still leaves the Power of Ordaining Supreamly in him as in the Fountain, though the Efflux or Exercise of that Power be not solely in his Will, but expects the Consent of his People; And therefore ’tis very curiously expressed by the Learned Mr. Hooker,4That Laws do not take their Constraining Force from the Quality of such as devise them, but from the Power that doth give them the strength of Laws: Le Roy leveult, the King will have it so, is the Interpretative Phrase pronounced at the King’s passing of every Act of Parliament: “And it was,” sayes Sir Henry Filmer in that most excellent discourse called Patriarcha, “the Antient Custom for a long time, till the dayes of Henry 5. that the Kings, when any Bill was brought unto them, that had passed Both Houses, to take and pick out what they liked not, and so much as they chose was Enacted for a Law: but the Custom of the later Kings hath been so Gracious, as to allow alwayes of the entire Bill (and sometimes with a Tacking too) as it hath passed both Houses.”5
So much (Sir) in general, touching your fancied Corrivality of Power, I come now to a more close and minute Application, and I argue thus:
If the Two Houses have a Joint and Co-equal Authority with their King in making Laws and the like, it must be one of these two wayes, either it must be Primitively Seated in them, or it belongs to them by derivative participation.
First, the Two Houses of Parliament cannot have this Co-ordinate Power vested in them Primitively or Radically; For are not Both Houses Summoned by the King’s Writ? Do they not sit in Parliament by Virtue only of the Authority Royal? Can either the Lords or Commons or both together Lawfully convene themselves, appoint the time and place of their own Meeting? Our Books of Law can tell you (Sir) that the Power of Convocating and keeping of Assemblies of Subjects; the Power of Calling, Holding and Proroguing of Parliaments is an Essential Part, and Inseparable Privilege of the English Regality.
All able Jurists and Politicans very well know, that the King is Caput Principium & Finis Parliamenti,6 solely made and Created by him, and unto him only can be ultimately resolved. And therefore surely it must be the most unreasonable thing that ever was in the World, that Subjects Assembled by their Soveraign’s Writ, should have a Co-equality of Power with their Prince, without whose call they could not meet together, and at whose will and pleasure they are Dissolved in Law, and bound to betake themselves to their own Habitations: And return to the Status quo of Private Persons and Subjects, whereas Supremacy is a Publick and indelible Character of Lawful Authority.
But farther, can the Two Houses of Parliament pretend to be before our First King in time, can they outvy him in Seniority? Surely, no. As for the Lords, Bracton affirms, that the Earls and Barons were Created by the King, and assumed to him only for Counsel and Advice; which infers undoubtedly, that the Power they are invested withall, is not by a Contrivement or Reservation (as some Fanaticks fancy) at the supposed Making of the First King, but proceeds, ex Indulto Regum from the gratuit Concessions of our Princes.
But it was Objected by you in our Disceptation as it hath been by others heretofore, that the very Style of Comites7 and Peers, implies a Co-ordinative Association with the King in the Government; they are in Parliament his Comites, his Peers.
I Answer, that Mr. Bracton tells us, Rex parem non habet in Regno suo, the King has no Peer, and offereth us another Reason of the Style of Comites, Quia sunt in Comitatu,8 without any Relation to Parliament, because they are either in the Train of the King, or because placed in each County, ad Regendum Populum,9 and so assumed to the King to the like end that Moses did his under-Officers, in Governing his People. They were not only to be Companions as to his Person, but in respect of his Cares; Pares Curis, solo diademate dispares.10 They are the Highest, and in the nature of Privy-Counsellors, but Created by the Soveraign Prince (the Fountain of Honour) and so not equal unto him, though exalted above Fellow-Subjects. To be short, if this word [Comites] should imply a Co-ordinative Society, it must needs follow that the Commons must be the King’s Peers too, for they are as much Co-ordinate with His Majesty as the other; And so let’s set up Three Thrones, One for the King, another for the Lords, and a Third for the House of Commons.
I would advise you (Sir) to make a Voyage, next long Vacation, into France, and argue there at the French Court, from the Denomination of Pares Franciae, and see what Thanks you shall have for your Logick. Thus much for the Lords, I must have a touch at the Commons too.
As for the Commons, they surely will not pretend to exceed the Lords in Antiquity: If what Sir Robert Cotton (that Famous Antiquary) relates, in some part of his Posthuma Works, be truth; And he hath been pleased in this very manner to express himself.11
As this great Court or Council, consisting of the King and Barons, ruled the great Affaires of State, and Controlled all Inferiour Courts; so were there certain Officers, whose transcendent Power seemed to be set to bound in the Execution of Princes’ Wills, as the Steward, Constable and Marshal fixed upon Families for many Ages. They as Tribunes of the People, or Ephori amongst the Athenians, grown by an unmannerly Carriage, fearful to Monarchy, fell at the Feet and Mercy of the King, where the daring Earl of Leicester was slain at Evesham. This Chance and the Dear Experience Henry the Third himself had made at the Parliament at Oxford in the Fortieth year of his Reign, and the Memory of the many streights his Father12 was driven unto, especially at Runney Meade near Stanes, brought this King wisely to begin, what his Successor fortunately finished in lessening the Strength and Power of His great Lords. And this wrought by searching into the Regality, they had Usurped over their peculiar Soveraigns (whereby they were (as the Book of Saint Alban’s termeth them) Quot Domini, Tot Tyranni),13 and by weakening that Hand of Power which they carried in the Parliaments, by Commanding the Service of many Knights, Citizens and Burgesses to that General Council. Now began the frequent sending of Writs, to the Commons their Assents, not only used in Money, Charge and Making Laws (for before all Ordinances passed by the King and Peers) but their Consent in Judgments of all natures, whether Civil or Criminal.
By what I have here offered out of Sir Robert Cotton, and elsewhere before in this Discourse; It is as clear as the Sun at Noon day, That the Two Houses of Parliament are not Co-aetaneous with the First King, much less before him, and consequently the Legislature cannot be said to be Originally and Radically seated in the Lords and Commons.
Secondly, As I have made it appear that the Architectonick Power Paramount of making Laws in Parliament was never Natively, and formally seated in the Two Houses, so I come now to prove that the Supream Legislative Authority was never vested in them, by way of Emanation, or derivation from the Imperial Crown of this Nation.
Now if they have derivatively such a power, it must be one of these two wayes, either by way of Donation or Usurpation: Again, if they have it via Donationis, by way of Grant, they must have it either by way of Division or by way of Communication: But they cannot challenge it by either of these same wayes.
1. The Houses of Parliament may not challenge a Co-ordination in the Supremacy by way of Division or Partition; For Suprema potestas, is an Entity or being Indivisible; as it is subordinate to none but God Almighty; so it admitteth no Co-ordinate, Collateral, Co-equal or Corrival Power. To make Majestatem in Majestate, Regnum in Regno, more than one Soveraign in a Kingdom, is inconsistent with Supremity; for Supream admits neither of Equal nor Superiour, and to affirm it, is Contradictio in Adjecto.14 And therefore you may read, that Henry de Beauchamp Earl of Warwick for the singular favour that King Henry the Sixth bare to him, Crowned him King of Wight: But we could never find (sayes Cook) any Letters Patents of this Creation, because (as some hold) the King could not by Law, Create him a King within his own Kingdom, because there cannot be Two Kings in one Kingdom, or if such there be, they are but Reguli or Proreges, Kings to their Subjects, and Subjects to the Supream King.
So Oedipus King of the Thebans having Issue Two Sons, Polynices and Eteocles, ordained that after his Decease, his Two Sons should alternative by Course, Reign in his Kingdom. But what was the event? Fratres de Regni Haereditate dissidentes singulari certamine Congressi mutuis vulneribus ceciderunt.15
Let any Man look upon the Estate of the Roman Empire, when it was divided by Constantine the Great amongst his Three Sons, Constantinus, Constantius and Constans; Or upon the Estate of the Western Empire, after the Division made by Lotharius, Lewis and Charles, Sons of Ledovicus Pius; And he will find most sad and horrible Confusions ensued on such Partitions. But letting pass Forreign Countries, we must not pretermit the miserable Estate within this Kingdom, under the Heptarchy until all was Re-united under one Soveraign; And this is the Reason that in England, Scotland and Ireland, the Royal Dignity is descendible to the Eldest Daughter or Sister, Co. 4 Inst. f. 243 & on Lit. fol. 165. a. For Regnum non est divisible:16 And so was the Descent of Troy.
2. As the Two Houses cannot have a Co-ordinate Power with the King, by way of Division; so neither can they challenge to themselves a Co-ordination in the Supremacy itself by way of Communication; for the Prerogative of Legislation (as many others) is so naturally intrinsically inherent in the Supremacy (for where Majesty is, there must be the Power Legislative), that it cannot be transferred or separated from the Crown, or so Communicated to Both Houses, as to denude or disrobe the King of that Sacred Supream Right which God has given to him, as his Vice-regent on Earth.
Ea quae Jurisdictionis sunt & pacis (sayes our Bracton) ad nullum pertinent nisi ad Coronam, & dignitatem Regiam, nec à Coronâ separari poterunt, cum faciant ipsam Coronam, Lib. 2.c.24.18
The old Statute of Praerogativa Regis tells us, That our King can grant no Prerogative to the prejudice of the Crown. And thereupon whatsoever a King of this Land Grants to his Subjects, or to any other that is essentially in the Crown of this Kingdom, that is to say, really annexed to the Person of a Man, as he is King of England, as that the parting with it, makes him to be no King, or a less King than he ought to be in Dignity or Royal Power the Grant is void, the Grant how large soever, It must be understood with this Limitation, Salvo JureCoronae. And how tender our Former Kings and their Subjects have been of the Rights and Prerogatives of the Crown, Pray (Sir) at your good leasure consult the Statutes of 28.E.1.c.2 & 20. 34.E.3.c.15 & 17. 5.R.2.c.13. 11.R.2.c.9. 9.H.5.c.1. 28.H.6.c.2 & 27.E.1.c.5.
With our Municipal Laws do concurr Two Famous Jurists, I mean, Gothofrede and Suarez.
The former returns an Answer to this Quaere, Potestne Princeps Regalia alteri Cedere?
Potest (sayes he) His temperamentis adjectis, ut ne Regalia Jura sua cedat sine summâ necessitate, ac ut ea cedat ex causâ necessariâ, ut ne ea tota cedat: Deinde ut quaecunque cedit suopte motu, ac sua sponte sciens, prudensque cedat, Principatûs Jure Excepto: quod etsi nominatim non fuerit exceptum, tacitè tamen exceptum intelligitur (cum adversus omnes Regalia possidentes, in suo Regno, Jus instituendae Actionis habeat) adeo ut Jus id nullo tempore possit praescribi.
The latter viz. Suarez sayes thus, Regnum est veluti quoddam Officium quod incumbit propriae Personae, cui confertur, & non tam est propter ipsam, quam propter eos, qui regendi sunt, & ideo non potest Rex, vel Regina tale onus à se separare, etiam quoad usum, vel administrationem, ita ut non maneat apud ipsum suprema potestas, & Obligatio Regendi; non ergo transferri potest illo modo Administratio Regni in Regem, Ratione Matrimonii.19
The sum of all that I have said as to the point of Communication is this; That however the prime essential Constitutives of Monarchy, in the exercise of them, may be intrusted by the King to the Subject by way of Delegation to ease his Burden and to facilitate his Royal Charge, yet in so doing, he does not, he cannot divest himself of the Soveraign Power, nor of any of those Sacred Rights and Prerogatives that are naturally and intrinsecally inherent in his Imperial Crown.
In the last place, as the Two Houses cannot challenge to themselves by way of Grant (that is to say neither by Division, nor by Communication) a Co-ordination in the very Supremacy of Power itself (and consequently there cannot be any such thing as a Co-equality of Power in the Legislature); so neither can they make forth a good and Lawful Title to themselves, for a Fellowship in the Legislative Power, via usucapionis, by virtue of any Custom or Prescription; For no immemorial Custom can hold good, when there be Authentical Records to the Contrary; And whether there be not such, I will appeal unto your own good self.
Antiently the Law Enacted began thus, Rex Statuit, the King Ordains, and before the Laws and Statutes in each King’s Reign from the time of Edward the First to this day, I find the Title or Introduction thus expressed as follows.
7.Edward 1. the Statute of Mortmain, We therefore by Advice of our Prelates, Earles, Barons and other Subjects, have provided, made and Ordained.
9.Edward 2. The Statute of Sheriffs—Our Lord the King, by the Assent of the Prelates, Earles, Barons and other great Estates, hath Ordained and Established.
5.Edward 3. Statute de Natis ultra Mare, Our Lord the King by the Assent of the Prelates, Earles, Barons and other Great Men, and all theCommons of the Realm, hath Ordained and Established these things under Written.
3.Richard 2.c.3.—Our Lord the King, by the Advice, and Common Consent, &c. hath Ordained and Established.
4.Edward 4.c.1.—Our Lord the King, by the Advice, Assent Request and Authority aforesaid, hath Ordained and Established.
1.Richard 3.c.2.—Therefore the King will, it be Ordained by the Advice and Assent of the Lords Spiritual and Temporal, and the Commons of this Present Parliament.
1.Henry 7.c.7.—The King our Soveraign Lord, by the Advice and Assent of the Lords Spiritual and Temporal, at the Supplication of the Commons ordaineth.
1.Henry 8.c.7.—The King our Soveraign, by the Assent of the Lords Spiritual and Temporal, and the Commons ordaineth.
1.Edward 6.c.4.—Wherefore the King our Soveraign Lord, at the humble Petition and Suit of the Lords and Commons, doth Ordain, Declare and Enact, by the Assent of the Lords Spiritual and Temporal, and of the Commons in Parliament Assembled.
1. Mary c.1.—Be it therefore Enacted by the Queen our Soveraign Lady, with the Assent of the Lords Spiritual and Temporal, and of the Commons in this present Parliament Assembled.
5. Elizabeth c.5.—Be it Enacted by the Queen’s Most Excellent Majesty, with the Assent of the Lords Spiritual and Temporal, and the Commons in this present Parliament Assembled.
1. James c.2. Be it therefore Enacted by the King’s Most Excellent Majesty, by and with the Assent and Consent of the Lords Spiritual and Temporal, and the Commons in this present Parliament Assembled.
16. Charles 1.c.1. Be it Enacted by the King’s Most Excellent Majesty, with the Consent of the Lords Spiritual and Temporal, and the Commons in this present Parliament.
12. Charles 2. nunc Regis c. 11. Be it Enacted by the King’s Most Excellent Majesty, with the Advice and Consent of the Lords and the Commons in this present Parliament.
Thus (Sir) by the Title or Introduction of our Statutes in each King’s Reign (from King Edward the First, to this very day) it is clearly proved, that the Two Houses cannot challenge a Co-ordinate Power with the King in making Laws in Parliament by Usage, or Prescription, the Legislative Authority being only in the King, though the use of it be restrained to the Consent of the Lords and Commons in Parliament; Le Roy fait les Liex avec le Consent des Seigniors, & Communs, & non pas les Seigniors & Communs avec le Consent du Roy; The King makes the Laws with the Consent of the Lords and Commons, and not the Lords and Commons with the Consent of the King. In a word, the Soveraign is the sole Legislator, it is His Stamp and Royal Will, and that alone which gives Life, and Being, and Title of Laws to that which was before, but Counsel and Advice; All marks of Supremacy being still in him, nor is it an Argument of Communicating his Power, that he restrains himself from exercising some particular Acts without Consent of Parliament, for it is by virtue of his own Grant, that such after-Acts shall not be valid. He hath not divided his Legislative faculty, but tied himself from using it, except by the Advice and Consent of the Peers, and at the Request of the Commons, their Rogation must precede his Ratification. Wherefore upon what has been said, I may very well pronounce our Author’s words.
That the Making of Laws is a peculiar and incommunicable priviledge of the Supream Power; And the Office of the Two Houses in this Case is only Consultive or Preparative, but the Character of the Power, rests in the final Sanction which is in the King; And effectually the passing of a Bill is but the granting of a Request; the Two Houses make the Bill ’tis true, but the King makes the Law, and ’tis the Stamp, and not the Matter, that makes it Currant.
Anon, The Arraignment of Co-Ordinate-Power
Are laid open to all Honest
With a Touch at the
Plebs aut humiliter servit, aut superbe dominatur, Tacit.
Albeit by the sufferance of the King of England, Controversies between the King and His People are sometimes determined by the High-Court of Parliament, and sometimes by the Lord Chief Justice: Yet all the Estates remain in full Subjection to the King, who is not bound to follow their Advice, neither to consent to their Requests, Bodin de Rep. l.1.c.2.
Irridenda est eorum socordia, qui praesenti potentia credunt se extingui posse sequentis aevi memoriam, Tacit. l.4.
Printed for T. Hunt, Anno Dom. MDCLXXXIII.
The author of this tract hid his identity so well that it remains a mystery. He is likely to have been a barrister however, as he claims expertise in the law and familiarity with the views of barristers. The publication of this tract in 1683, the year of the Rye House Plot, coincided with, and appears to be a part of, fierce government repression of Whigs and dissenters and a propaganda campaign against their ideology. Charles and his party demanded unity, obedience, and control.
“The Arraignment of Co-Ordinate-Power” disparages the institution of Parliament at a time when Charles II had no intention of summoning another. Indeed the King had secretly promised Louis XIV he would not do so. For two decades there had been a parliament in session all but two years. In 1683 none was held or anticipated. The first five chapters of “The Arraignment of Co-Ordinate-Power” reprinted below consider the antiquity and role of Parliament in relation to that of the King and the judicial powers of the two houses. Because the remainder of the tract treats more narrow questions of law, it has been omitted.
The author begins by directing attention to two documents of 1681 that claim for Parliament great power, especially judicial power: the debates of the House of Commons in October 1680, published in 1681; and the petition of the mayor and aldermen of London in January 1681. The author’s quarrel with the former is its claim that barristersbelieve “the proceedings of the House of Commons are Things above them, and which they have neither Power or Ability to make determination of the same.” This he proposes to answer. The second document, the London petition, complained about the interruption of public justice during the prorogation of Parliament. The petition figured prominently in the indictment the Crown brought against London in 1683 to force that Whig stronghold to surrender its charter.
The tract is a clear exposition of the Tory viewpoint in the 1680s. Its title page sports a quotation from Bodin that prepares readers for what is to come: “Albeit by the sufferance of the King of England, Controversies between the King and His People are sometimes determined by the High-Court of Parliament, and sometimes by the Lord Chief Justice: Yet all the Estates remain in full Subjection to the King, who is not bound to follow their Advice, neither to consent to their Requests.” The dedication to Lord Noble complains that “It is against the Liberty of the Subject, that Loyal and Obedient Subjects should be either Terrify’d or Dismay’d by their own Representatives, whose Electors . . . cannot give away all their own Rights, Power and Freedoms unto them, without His Majesties Consent, or the Promulgation of a known Law, and leave nothing to themselves for a Self-preservation.” Only a single edition of the tract seems to have been published.
The Power of the Parliament of this Kingdom.
I Cannot presume that He or They that writ the Pamphlet printed for Richard Baldwin on the 28 of June 1681.1was so well acquainted with Benchers, Ancients, and most of the Barresters of the several Inns of Court, as he pretends to be; for assuredly then in that Paper there had not been so much of the Language of Billingsgate,2and so little of that of Westminster-Hall therein to be found. Now for that it is therein said, That the Inns of Court-men have declared, that the proceedings of the House of Commons are Things above them, and which they have neither Power or Ability to make determination of the same. By these words this Writer being so great an intelligent Athleta, let us consider the Power of the Parliament, &c.
THE Power of the Parliament of this Kingdom being agreed by most Men, if not by all, to have no other Limits, save only such as are set by the Law of Nature preceptive, and the dispersed Divine Laws, written and declared in the Sacred Volumes of the Old and New Testaments, whose Acts by conjecture bear a relation thereunto, yet are always subject to the mistakes of Human Frailties. The Doubts that at this time seem necessary to require a Dispute, are, to whom and to what this Name The Parliament is due, and what things cannot be done but by the Concurrence of all the Three Estates, Lords Spiritual and Temporal, and Commons; what Power the King hath over both or either Houses of Parliament: which not being rightly understood by the greater part of the People, much hath passed for current, to the endangering a Relapse to the whole Kingdom, that otherwise would have plainly appeared counterfeit, and base Alloy: For the clearing of which, I shall, with some brevity and demonstration, state and argue these Ten Questions following.
I. What the Parliament is?
II. Whether the name Parliament hath been, or can properly be given to any part or parts of this Body?
III. What Power the Lords in Parliament have as a Judicial Court of Record, touching particular Suits between the King and Subject, or between Subject and Subject?
IV. Whether the House of Commons be any Judicial Court of Record, touching particular Suits between the King and Subject, or between Subject and Subject?
V. Whether the House of Commons alone can make any Ordinance to bind any of the Commonalty, but their own Members; or where some Contempt is committed, by breaking the present Priviledges belonging to the Members of that House?
VI. Whether the House of Commons alone have any Power to imprison any of the Commonalty, for Breach of their Votes or Ordinances, unless a Member of the House, or where there is a Contempt committed by Breach of the Priviledges belonging to the Members, being such as before is mentioned?
VII. Whether the Lords alone, or the Lords and Commons together, (without the King) can make Ordinances to imprison, bind the Persons and Estates of the Subject, where there is no Suit before them between the King and a Subject, or between Subject and Subject; or where it doth not concern the regulating their own Members, or where there is no Contempt committed against their Proceedings given them by the Law of England?
VIII. Whether there be not greater reason to be given, that taking men into Custody by a Vote of the House of Commons, where their Priviledges are not concerned, should be within the Statute of 27.E.3.1. and the 16R.2. then for the High Court of Chancery to hold Cognizance of a Cause after Judgment given in a Court at Law?
IX. Whether the Priviledges of Parliament as now pretended to be used, be not an Oppression to the People?
X. Whether the House of Commons can prohibit a Councellor at Law to speak in behalf of his Client?3
Q.1. What the Parliament is?
The Parliament is the Common Councel, or great Court of the Kingdom: A Body Politick, consisting of the Three Estates aforesaid, whereof the King is the Head, the Lords, the Noble Members in person, and the Commons the inferiour Members. By their Representatives the two latter called by the King’s Writ, in which Councel or Court alone old Laws may be annulled, abrogated, restrained, enlarged, or so declared, as shall bind other Courts or New Laws made by the King, done with the advice and consent of the Lords and Commons, and not otherwise.
Every part of this being indeed a description of the Parliament, is made good by the Writ of Waste and other Writs upon Statutes and in Authors of great Reputation in this Kingdom. The Parliament is called Commune Concilium Angliae, the Common Councel of England; and Magna Curia, the Great Court. And there is great reason it may be so called, there being, in effect, the common advice and judgment of the whole; amongst others, I instance these in the Margent.
From this name Parliament, some persons before the Statute 13 Car. 2.4 were of Opinion, That both or either Houses of Parliament, had a Legislative Power without the King; since which time the like Principle hath been revived, that both or either Houses of Parliament hath a co-ordinate power and share in the Government with the King, and that this is the ancient Constitution of the Government of this Kingdom, as the London-Petition5 gravely asserts it. As if it would stand with any colour of reason, that the King, who by His Prerogative hath the sole Sanction of Laws, which is the only reason of our Obedience; that the King, to whom the protection and preservation of the Laws of the People, their Lives, Liberties, and their Estates, with the whole Kingdom, are especially committed; That the King, who is exempt from Human Laws, and may command the Laws themselves for the Publick Good; and by whom only Parliaments can be called, and at His Pleasure dissolved; and who indeed is Anima Republicae, God’s Lieutenant, Salus Populi, and an Emperour in His own Dominions, should have Associates and Collegues joined with His Royal Person, and yet these persons be only called Counsellors and Advisers. As if it were not necessary that in every Commonwealth, that some one Authority should be established, that is superiour and above all Laws.
First, To supply the defect of Laws.
Secondly, To correct the severity of Laws: Because the event of future matters cannot be foreseen, and so every Act that is the exercise of Supreme Power, doth suppose that the Agent hath a proportionable power to itself.
The Chronologers and Historians that do keep within the compass of their own bounds, do prudently and safely say, That the name Parliament is a name of no great Antiquity; that it is a French word, derived from Parler-le-ment, that is, to speak one’s mind, and to discourse freely; that before the time of King Henry I to signifie the King’s great Court, or Councel. On the contrary, some persons that affect Popularity, and make it their studies to enlarge the Jurisdictions of the Commons, are not contented with that old name, The King’s great Court, or Councel; where the Rights and Liberties of the Subject are as well, if not better secured and maintained, than they are in the same Court called by the new name, The Parliament.
These kind of men have such Fancies, and imperfect, and partial Animadversions for this name, The Parliament, that instead of making this name serviceable to the King, and His Subjects, they endeavour by misrepresentation, and otherwise, to ease His Majesty of great Trouble, and give the Commons dominion, and make the Laws subservient unto them. And so King Charles I. complained, That the Oaths of Allegiance and Supremacy to defend the Crown, and assist and defend all Jurisdictions, Priviledges and Authorities belonging to Us, obliges them not, they are to be associated in these Regal Powers; the Sword and Scepter may be in Pictures and Statues, but not in the King’s hand alone.
So I find in Vox Populi, a Pamphlet printed 1681.6 that when they came to mention King Alfred’s appointing the meeting of an Assembly, Pur Parlementer de grandment de People, the which signifies to discourse freely concerning the great Affairs of the People; They, on purpose to delude the Vulgar, falsly translate these words, to mean, That they shall assemble themselves at London, to treat in Parliament of the Government of the People.
2. They say the Court of Parliament is the most ancient Court. Let this Court be called by what Name you please, be it either Wittena Gemot. Geredner Micellemod, as Mr. Campden hath it, or the Senateof the King’s great Court, the Parliament Treaty or Assembly, as the Statute of 7 E.1. and the 13 Car. 2.15. calls it; Yet by the Laws of England, never any of these Courts had a share in the Government, as government of the People, as hereafter will appear.
This Court, by the name of the King’s great Court, may well be called the most Ancient Court; for there were Kings before there were Laws, witness that Story of King Lucius and Eleutherius, and that Kings had Councels before Courts.
This Kingdom flourished as much, if not more, before the Name of Parliament was known. The Parliament of Paris, which is the ancientest, was established and constituted in the time of King Philip le Bel, in the year 1294. That of Toulouse during the Reign of Charles VII. in the year 1444. That of Bordeaux in the time of the said King, in the year 1451. That of Dauphin in the time also of the said King: But by the Authority of King Lewis XI. His Son, at Dolphin, then inhabiting in Dolphin in the year 1459. The Parliament of Dion and of Province in that time of the said King Lewis; That of Rouen in the time of King Lewis XII. in the year 1553, and so it would be absurd to say, That Parliamenta est Curia Antiquissima, that we took the Name Parliament from the French, whose first Court of Parliament was held at Paris, in the year 1294, as aforesaid.
Such like ancient Parliaments, were those of Magna Carta, held in the 9th year of Henry 3 afterwards, wherein some time the assent of the Lords and Commons were not at all mentioned; such like most ancient Courts was that held at Clarendon in Normandy, in the time of King Henry II. wherein those excellent Laws were made against Thomas A Becket, yet no House of Commons were ever there: The which shews, That good Laws have been made for the People to their own contents by His Majesty, without any consent of the Commons, Pes Regis sepes legis sospes Civis.
Polidore Virgil says, That before the time of King Henry I. Regesnon consuevisse populi conventum consultandum causa raro facere. That it was very rare or seldom, that the Kings of England, before the time of King Henry I. called an Assembly of the People, to know their advice and counsel; For, saith he, the Vulgar that came to consult in such Assemblies were unlearned, Cuivis proprium est nihil sapere; they had so little knowledge, they did but hinder, instead of giving a dispatch to the King’s Council. Some persons appeared in respect of their Tenures, the which might cause some opposition to be made on their behalf, But at this time of day it is not material to search into Antiquity, concerning the time when, and place where the Commons first met and sat, either together with the Lords, or by themselves, but chiefly concerning their Power: However, thus far I will concur with the Petitioners and Presenters, that the Name Parliament is the most famous Idol that ever was, to be thus bowed down to, and worshipped in respect of time, before it ever was born or heard of in the world. Concerning this mixture of Power, let us first look into the danger of it.
First, The Poets are against this mixture:
So concerning Ruffinus, the treacherous Tutor of Arcadius, that endeavoured to supplant him by the help of King Alericus:
The truth whereof we find in the Emperour Constans, that when he suffered his two Brothers Tiberius and Heraclius, to be his Fellow Consorts in the Government, he cut off both their Noses, lest afterwards they should enjoy the dignity of being Emperours.
And so it is observed of Constantine and Maxentius, Nullam Regni societatem diu esse patientem consortis. For the like cause Henry 2. put out his Brother Robert’s eyes. And when Henry 2. out of his great care to his Son, caused him to be crowned King; and at the Solemnity of the Feast made on that occasion, carried up the first Dish to his Son’s Table, to honour his Son the new King, and waited likewise upon him. But before the Feast was ended, King Henry 2. said, Eius penitet! Penitet me extulisse hominem. It repented him he had made his Son a Consort in the Government; so in a short time he did see, (when it was too late) that a Crown is no Estate to be made over in Trust; and what trouble would ensue thereupon both to himself and the whole Kingdom.
So the Adoption of Pisoky Galba, was the cause of Pisor’s Ruine, Cornelius Tacitus Hist. I.
In the 36 Fable of Aesop, concerning the Husbandman, and the Wood; the Husbandman petitions Jupiter but for so much Wood as would only make him a Hatchet Helve, the which Petition being granted, the Husbandman cut down the whole Wood; upon the Moral of which Fable, Mr. Ogilby pleasantly saith:
So concerning Julius Caesar, and his Collegue Bibulus Augustus, Lepidus and Antonius.
His Majesty is the Exis, the Soul of Human Things; the Bond of Society, which cannot otherwise subsist; the vital Spirit, whereby so many millions of Men do breath, and the whole nature of things; His Majesty hath peculiar Rights to himself, called Sanctimonia summae potestatis, the which are sacred and individual.
In the presence of His Majesty, both, or either Houses of Parliament, have no Power to command: And, as Rivers lose their Name and Power, at the Mouth or Entrance into the Sea; and the Stars their light, in the presence of the Sun: So the Power of both or either Houses of Parliament, is but upon sufference, in the presence of their Sovereign His Majesty.
It is said concerning Arbates, Rex Medorum Tanta erat Regia illa veneratio honorem deferens ei insidere Sellae quam vocabunt Thronon Basilicôn capitale esset, Praescribi à subditis nequit immunitus ab obedientia principis vel ipsius correctione, vel ut eum non possit appellari quia potestas praecipiendi judicandi & castigandi omnino intrincise est potestate Principis respectu subditorum.
Multum falluntur qui existimant cum Regis acta quaedam sua nolunt rata esse nisi a Senatu aut alio coetu aliquo probentur partitionem fieri potestatis nam quae acta eo in modo rescinduntur intelligi debent rescindi Regis ipsius Imperio quo eo modo sibi cavere volunt ne quid fallaciter impetratum pro vera ipsius voluntate haberetur.9 Dr. Taylor is of the same opinion, who saith, That the consent of the People gives no Authority to the Law; therefore it is no way necessary to the Sanction and Constitution, saving only to prevent Violence, Rebellion, and Disobedience; as for Example:
Asivius Gallus cum Tiberius simulate partem sibi Reipublicae petisset, interrogato inquit Caesar, quam partem Reipublicae tibi mandari velis, mox cum vultu offensionem confectasset. Non se ideo interrogasse ait ut divideret quae seperari nequirent, sed ut sua confessione argueretur unum esse Reipublicae corpus atque unius animo regendum.
Decius Imperator cum decimum filium suum imperiali diademate proponeret insignari renuit filius dicens, vereor ne si fiam Imperator, dediscam esse filius, malo non esse Imperator quam filius indevotus imperet, pater meus meum imperium scit parere humiliter imparanti nam parentum affectum exuit qui male suprapositum filium extinguit prius enim claudi & nutriendi sunt pueri & cum processerant quis procedere debent invite ascendunt.10
That is, Decius the Son refused to receive the Crown, and participate in the Government with his Father Decius; for in respect of the difficulty that did attend Supreme Power, he said he had rather be no Emperour, than after the acceptance thereof, prove to be a disobedient Son.
Erat ipsi pelvis aurea in qua tam ipse Amasis quam convive omnes semper pedes lavabunt contusa ergo pelvi statuam Dei ex illa fecit. Et inea urbis parta collocavit ubi erat commodissimum Aegyptii irantes ad statuam studiose eam coluerunt quo Amasis cognito accersitis Aegyptiis exposuit statuam ex pelvi factam esse ex qua prius levarit pedes modo autem religiose ab illis coliunt igitur eadem est mea quae pelvis ratio uti enim prius fuerint plebeius nunc tamen Rex vester sum honorare igitur me & venerari voce jubeo hac quidem ratione Aegyptios sibi reconciliavit & equum judicarent ipsi servare.11
But yet to come nearer to the purpose: Admit that the Two Houses have a share in making Acts by their advice and consent only, yet they have no power in the Government itself, either before or after the Statutes made; for that the sole Empire is in the King, the King is the only Supreme Governour of this Realm; in all the world there is no other Sovereignty touching the Regality of the Crown of England, 4 Inst. 89. The Lord Bishop of Lincoln, p. 4. printed 1679.
The King hath sufficient power to do Justice in all Cases within His Dominions.
Curia Domini Regis nos debet deficere conquerentibus in justicia exhibenda.
Eum à quo aliquis constituitur esse superiorem constituto, id est cujus affectus perpetuo pendet a voluntate constituentis.
All external Actions are under the Command of the Civil Power, in order to the Publick Government; and if they were not, the Civil Power sufficiently provided for the acquiring the ends of its institution, so all that God made were not good.
That the Information against Sir John Elliot is good Law, notwithstanding the Vote of the Commons for making him reparation for damages;12 for the Statute saith, For that to the King it belongeth at all times and seasons to defend, force of Armour, and all other force against the Peace at all times, and to punish them that shall do the contrary; and hereunto the Subjects are bound to aid our Sovereign Lord the King at all seasons when need shall be. And so the Civil Rights of the Subject are under a general Protection, otherwise Sovereign Power cannot subsist. And as these Statutes extend to punish Force within the Lords House, so the Book of 3 E.3. 19 Bro. Corone 161. extends to punish a Peer for departing the Parliament without the King’s Licence; much more for a Commoner, that pretends that whatsoever is acted and done in their House, is acted and done in a Superior Court, and cannot be called in question in any of His Majesty’s Courts in Westminster-Hall, and the reason is, for that the King hath no Peer in his own Land.
That it is the Rights of the Crown, to declare all Acts of Parliament to be void unto which the King doth not freely consent at the time of the making thereof.
So it was when the Prelates and Citizens had obtained an Act of Parliament, That if anything was done by any of what estate or condition he be contrary to their Franchises, that it should be redressed in the next Parliament; and so from Parliament to Parliament, and they shall be made quit of the Exchequer.
So great was the King’s Prerogative before the Statute 8 H.5. cap. 1. for the care and safety of the Subject, that if a Parliament was summoned by Writ under the Teste of the King’s Lieutenant, during the time that the King was in Foreign Parts beyond the Sea, at the King’s Return, such Parliament was dissolved.
Thus having shewed what the Parliament is, what Power the King hath over both or either House of Parliament, and what kind of share both or either House of Parliament can pretend to in the Government, what danger there is in a Colegislative Power, I descend to the second Question.
Q. 2. Whether the Name of Parliament can properly be given to any Part or Parts of this Body, not being the Whole?
In all Bodies, whether Natural or Politick, there is one Name which is proper only to the whole taken together, and divers Names proper to the Members respectively, as the whole reasonable Creature is called Man, and the parts by several other Names, and the chief the Head, the rest the Arms, &c. And so the whole irrational Creature is called a Horse, a Dog, or such like, according to their difference; but of the parts one is called the Head, &c. A Man shall scarcely in an Age hear any person never so ignorant call the Head of a Man, a Man; or of a Horse, a Horse. In Bodies Politick, the Whole is called the Empire, the Kingdom, the State, the City, the Colledge, but the Members by particular Names: As the Emperour, the King, the Head, the Nobles, and the Commons; the President, the Mayor, the Master, &c. Doth ever anyone call the Mayor of London, or the Aldermen, (though many) the City? No, the reason is plain, because in truth that is the name of the Whole, which consists of the Mayor, Aldermen and Commonalty, whereof the Mayor and Aldermen are but Parts, though but chief ones; so the Name the Parliament, is the Name due to the Whole, and not to any Part or Parts not being the Whole, nor can properly be given to them. The Commandment which God gave unto Adam, was to impose Names to all, significant to every Creature, but to give to every particular Part, or to some Part, not being the Whole, the same Name, would not only be repugnant to the definition of a Name, but also destroy the end for which Names were given, which is, that one thing may be distinguished from another; which cannot be, if the same Name be given to a Part, which belongeth to the Whole. And there would follow Confusion, besides Absurdity. Uno Absurdo dato, mille sequuntur; one Absurdity being admitted, infinite do follow. It is likewise a Rule, Nemo praesumendus est velle absurdi. And shall we have so base an opinion of our wise Ancestors, as to think they gave the Name Parliament to a part of that Parliament, which is so absurd as hath been said.
May it not come to pass, that if the King, and the Lords in the Upper House, and the Commons in the Lower House, differ in opinion; the one by the Name of Parliament, ordain for one thing, and the other against it, and what remedy will there be, but such as may prove worse than the Distemper, Unde summam confusionem sequi necesse est cognitionem de re eadem pro jure potestatis; when the dispute arises concerning the Right of Power, of necessity it is, great confusion must follow.
There is more reason, that if the Name proper to the whole Parliament may be given to a part, that it should be given to the King the Head, than to any other part; for that the Head is the supreme and most noble, in respect of its regent part of all natural Bodies. The head of a Man by Plautus is called divinissimum, and so it is, and must be in the Head Politique.
Hence it is, that great mistakes have come from this word Parliament, and great confusion hath arisen from these words of Sir Edward Cooke, in respect of the Priviledge of the Commons; That theJustices should not in any wise determine the Priviledges of this High Court of Parliament, for it is so high and mighty in its nature, that it may make new Laws; and that which is Law, they may make no Law; and the determination and knowledge of the Priviledges belongeth to the Lords of Parliament, and not to the Justices.
In which words it is very plain, that the word Parliament is Nomen collectivum, and means the King, Lords and Commons; for it is they jointly that can make Laws. And that which is Law, is by them to be made no Laws; and so the House of Commons alone are but a Society, and a distinct Court, the determination of whose Priviledges belong to the Lords, and cannot be called the Parliament: Nor can this Name be given to the King alone, or to the King and Lords, or to the Lords and Commons, or to the King and Commons; for then we should have several Parliaments, which cannot be allowed by the Laws of England.
Q. 3. What Power the Lords in Parliament have as a Judicial Court of Record, touching particular Suits between the King and a Subject, or between Subject and Subject?
Their Power is to hear and determine matters duly brought before them, either by Presentment, or Impeachment from the House of Commons Information on behalf of His Majesty, or complaint of any particular person grieved by Error, or corrupt Judgment, Decree, Sentence, or other unjust pressure; but with these Limitations:
I. That the Suits before that, which by the known Laws or course of Equity of the Realm the Party ought to have had, to avoid that Judgment, Decree or Sentence, which is against the same Laws or course of Equity.
II. That the Defendant be called and admitted to make his defence as in other Courts of the King, as in all Justice he ought.
III. That if the Defendant deny the matter alledged, it must be proved either by Record, or Witnesses upon Oath.
IV. That the Judgement, Sentence, Decree or Ordinance of the Lords in such Cases, be only such as by the known Laws or course of Equity of the Kingdom it ought to have been given in Chancery, King’s Bench, Common Pleas, or other Courts of the King.
For the office of the Lords in these Cases, is jus dicere, to say what the Law saith, and not jus dare, to give Law as they please. If the Lords in the Cases aforesaid were not limited, then in effect they might do as much as the whole Parliament, for the Judgments, Decrees, and Ordinances, would make Laws if there were none to warrant them, it being in truth nothing less, if they have liberty to proceed as they will, and give what Judgments, Decrees and Ordinances they please, and those to be held good.
And for what do the Judges attend in the Upper House, and not in the Lower, unless it be to inform the Lords what the Law is, as in the 7 H.7.20.13 It is, That the Lords with their advice proceed to correct erroneous Judgments. In the Case of the 21 E.3.46. which I cited before, the Lords in Parliament gave Judgment for repealing a Patent, being against Law. But because they had not (as the Common Law required) first awarded a Writ of Scire Facias, to summon the Patentee to shew cause if he could, to maintain the Patent, the Judgment was by the Lords in Parliament held erroneous, and therefore reversed. And if the Lords were so clear of that opinion, having better consulted what the Law was, which we must intend they did, as to condemn their own former Judgment; methinks it should satisfie any reasonable person, who labours not to be troublesome herein.
Besides, it were against reason, destructive to Property, Liberty, and all manner of Repose, to make the common Law uncertain, which is a great misery to a People. It is well said, Misera est servitus, ubi jus est vagum; where Law is wanting, there is miserable servitude. That Judgments, Decrees, and Ordinances, not warrantable by Law, or course of Equity of the Kingdom, or the Parties’ consent should bind unquestionably, for that man could not call anything his own, or enjoy any security, which are the ends of all Society: Omnis Societas eo intendit ut suum cuique fit salvum communi opere & conspiratione. All Society tends to this, that every one may by the common aid and design, as it were, enjoy what is his own in safety.
That the Lords do not sit or act anything as they are a peculiar, Judicial Court, by so much as the Election of the People, for the King is the only Fountain of Honour; nor have they consent to do what they please with the People, or their Estates, I suppose all men unconcerned that know anything of the Policy, Law or Government of the Kingdom, will confess.
The chief Reason why an Act of Parliament binds all, (if it were so intended it should) is in effect every one, both King and People, by himself, or his Representative, is consenting thereunto; in which regard the Lawyers hold, and truly too, That an Act of Parliament (they mean a Free Parliament, for such only are according to the Frame and excellent fundamental Policy of this State) cannot be said to do any wrong, relying upon a Maxim in Law, Volenti non fit injuria, a thing is not a wrong to him that willeth it, as it is with the People and their Representatives, so in this it is with the King and his Representatives.
Moreover, unless the Lords have the consent of the Commons, who do represent all the Commons England, and have power from them, as joining with the King in doing of such things as cannot be done but by the concurrence of all the Estates of the Kingdom, they take upon themselves and exercise as great an arbitrary Power as may be; and how vast and pernicious a Crime that hath been esteemed in all Ages, see Wingate’s Abridgment,14 Title, Accusation, and Stat. 17 Car. I cap. 10.15&c. If the Lords had any such Power, it would have appeared by the Records of the Lords House; but it doth not appear, therefore it follows, that they have no such Power or Authority.
To conclude, The Lords in Parliament never claimed such unlimited and arbitrary Power, the which certainly they would have done, if it had belonged unto them. The Lords at this time are contented with the Legal Power and Jurisdiction that always hath been allowed them, if they be not incroached upon therein by others.
Let us now see if the House of Commons are contented with that Jurisdiction which the Law allows them likewise.
Q. 4. Whether the House of Commons be any Judicial Court of Record, touching particular Suits between the King and a Subject, or between Subject and Subject?
Although I do acknowledge, and that most willingly, That they are an Honourable Assembly, and have privity in the promulgation of Laws, and are a kind of Court of Record as touching the Members of their own House, if they be remiss, or offend, quasi Parliament-men, that is, if they offend in anything which is contrary to the course of Proceedings of the House; and also for preserving their necessary Priviledges of that House, given and allowed them by the Law, without which it may be probable, they may be hindered in attending the Service of the Common-weal, for which they are elected and set up; yet I hold they are no Judicial Court of Record, to determine Suits between the King and a Subject, or between Subject and Subject, upon these Reasons.
1. Because they have not the means whereby to know the truth, as by Law and in Reason is required; for they cannot administer an Oath to a Witness to make any kind of Evidence, either before themselves, or any other Court whatsoever. And that is clear, not only by the opinion of all persons that know the Laws, but by this, that it doth not appear that ever any Oath was administered by them quasi Parliament-men, Knights, Citizens, and Burgesses, otherwise why should Sir William Scroggs, late Chief Justice, be sent for by one of their Members to desire his assistance and advice in the House? And when he was there, then to make use of him to have an Oath or Oaths administered by him before them, to make out such Evidence as might prove acceptable unto them.
2. Yea, when any Committee, or the House itself, hath been desirous to be satisfied by Affidavits, the direction hath been, and the like is practised at this very day, That an Affidavit is to be made before the Lords, or else in the Chancery, the which is a most strong evidence, that they cannot administer an Oath themselves. And can it stand with any colour of reason, that if the Law had made them such a Court, it would have denied the means; for, qui negat medium, negat finem; he that denies the means, destroys the end; whereas the meanest Court that is, without scruple exerciseth that power.
3. They cannot take a Recognizance, and the Defendant ought in many Cases to be bailed, if he tender Bail; and if he so doth, he ought not to be imprisoned, but delivered; and there is no Court of Record, but may take a Recognizance, which is but an obligation upon Record.
4. There is not any Record of any Suit to be found between the King and Subject, or between Subject and Subject, adjudged, and determined by the Commons alone.
5. The Commons are so far from being a Court of Record, that their Journal Book did but begin in the time of King Edward 6: and some say 1 Henry 7. concerning his Marriage. It must be intended, that if the Commons had any such Power, they would have exercised the same as well as the Lords, especially considering, that in most, if not in all Parliaments, there hath been in the House of Commons some men greatly learned in the Laws, as conscientious to perform that Trust and Duty, which if Judges, they ought to have performed; and the People by nearness of degree, or other causes, more likely to apply themselves unto them for redress, rather than to the Lords. And as to criminal Causes, it is a great Argument they are no Court of Record.
Q. 5. Whether the House of Commons alone can make any Order or Ordinance to bind any of the Commonalty, but their own Members; or where some Contempt is committed, by breaking the present Priviledges belonging to the Members of that House?
The House of Commons have a twofold Power, touching those persons that sent them, the Commonalty from whom they derive part of it; and that is limited by the Writ, and by the Indenture: The other for regulating their Members, and maintaining their Priviledges, as before is expressed; but I hold they cannot by any Ordinance of theirs, and the common People, or their Estates, by reason of any Suit between Subject and Subject, because, they have no Judicial Court of Record, as before is proved; and that they cannot where there is no Suit.
The Writs whereupon the Members of the Commons House are chosen, without which they could not be directly so, the Election and Authority given by the Commons, is to do and consent to such things as are to be treated and concluded by the Common-Council of the Kingdom, which consists of the Three Estates. And that appears plainly by the Writ and Indenture of Election, admitting the common people had any such power; yet not having given it, they cannot by an Authority derived, for the people work otherwise, for Authority must exactly be pursued: As for instance, If a Letter of Attorney be made to two to do a thing, one of them cannot do it without the other. So if a Commission be granted by the King to twenty men, nineteen of them cannot do anything without the other, unless there be a special Clause in the Commission that enables part of them so to do. If two men refer their differences to the award of three, two of these three can do nothing; yea, in Authority, every circumstance of time, place and manner, must be observed. And it is great reason so to be, for to whom the Authority is given by his or their acceptance, he or they agree to the qualifications.
It would be of mischievous consequence for the Lower House, if they might make one Law touching the Goods, Contracts and Inheritance of the common People, and the Lords the quite contrary, concerning the Goods, Contracts, and Inheritance of Noble-men, and a third touching the Grants, Goods, and Inheritance of the Crown.
As it is in the Natural Body, so it is in the Body Politick of this Common-weal, the Goods of each of the Three Estates hath dependency in the good of the other two, and one cannot be prejudiced, but the other will suffer.
Altera poscit opem res ut conservat amice.16
As for instance, If the Revenues of the Crown be wasted, will not the other two Estates be grieved at it? I fear much the former times have found it so, and therefore Princes by reason of their extremities that they have often been put unto, have consented to Acts of Resumption of the Lands of the Crown alienated away. This mischief hath taken deep root in the Fortunes and Affections of the Subjects, when Princes, to repay the Breaches of their own Revenues, have often resumed the possessions of their people, as Edward the 2d the 5th and 8th year of Reign, Omnes donationes per Regem factas ad dampnum & diminutionem Regis & Coronae suae. King Richard the 2d in the 10th year of his Reign, did the like of all Grants made to unworthy men by his Grandfather, and recalled all Patents dated since the 40th year of the Reign of King Edward the 3d. Thus did Henry 5. in the 20th year of his Reign, and Henry 6. in the 23d year of his Reign, and Edward 4. in the 3d and 12th year of his Reign, Henry the 7th in the third year of his Reign, with all Offices of his Crown, granted either by the Usurper, or his Brother. Neither is this in itself unjust, since the reason of State as Rules of best Government, the Revenues and Profits, Quae ad sacrum Patrimonium Principis, should remain firm and unbroken. And certainly Theodosius was in the right, who said, Periculosis simum animal est pauper Rex, a poor King is a dangerous Creature. And so the Citizens of Constantinople found it, when Constantinus Peleologus, in whose time the famous City of Constantinople was took by Mahomet the Great, in the year 1452, the miserable Emperour who had in vain gone from door to door, to beg or borrow money to pay his Soldiers, which the Turks found in great abundance when he took the City.
So Sir Richard Baker tells us a Story of a Jew in King John’s Reign, would not pay his Taxation, till the King caused every day one of his great Teeth to be pulled out by the space of seven days; and then he was content to give the King a £.1000 of Silks, that no more might be pulled out, for he had but one left.
Again, If the common People decay, will not the King suffer many ways in the Customs and Aids he may expect from them, to defend the Kingdom against Foreign Invasions, and other ways?
The Common-weal hath a Supreme Property in the Estates and Persons of every one, and may only by the joint consent of the Three Estates, scilicet, by Act of Parliament, dispose the same as shall be thought fit. Now if the House of Commons alone by their Ordinance bind the common People, their Persons and Estates as they please, then may they deprive the other two Estates, and that whether the King or Lords will or no, the which is against Reason.
Admit the Commons should make an Ordinance, That every third Person of the Common-weal should go to Pensylvania in America, and place themselves there, would not this prejudice the King, and the Lords too; It is most apparent it would.
In the ninth year of King Henry the 4th an Act of Parliament was made, that all the Irish People should depart the Realm, and go into Ireland before the 25th of December following, the which Act was a terrour to the People, and utterly against the Law; Besides, Solomon saith, That the Honour of a King, is in the multitude of his People.
Perchance it will be objected, That the House of Commons doth not claim any power to make any Ordinance of a new Law, but declaratory of the old, and that to bind only during Parliament.
Truly if their Ordinance have such power, that whatsoever they declare therein to be Law, and must bind all the Commons of England during that Parliament, may they not when they please, in effect, make a new Law, by declaring that there is such an old one; and by that means during Parliament, take and dispose all the Money, Plate, and personal Estate of the Commons of England, and imprison and banish any of them; and when the Parliament is done and ended, and all gone, what relief will it yield the people that the Ordinance hath now no farther duration? They will have but a lame remedy; but this they need not to fear falling lower, for
Quin jacet in terram non habet unde cadet.17
The Authority given them by the people, is no more to make Ordinances continue during Parliament, than forever; nor is there anything in the Indenture, in the Writ, or in the King’s Warrant to the Chancellor, wherein there is Authority given that hath any shadow of such a thing. Nemo potest in alium transferre quod ipse non habet: The Commonalty cannot assign that to their Representatives, which they never had themselves. The Law cannot be altered for a certain time, but by the assent of the Three Estates, for then why not for 100 years, or for 1000, as well as 100, and then what need of Statutes? You know we have many Statutes made but for a little time.
Anon, The King’s Dispensing Power
KING’S Dispensing Power
Explicated & Asserted.
This tract appeared without a title page, leaving uncertainty not only as to its author but also to the place and date of publication. Because it directly concerns the nature of the king’s power to dispense with laws, however, it was almost certainly published in defense of James II’s Declaration of Indulgence issued on 4 April 1687.
In an attempt to remove the legal liabilities against Roman Catholics, James had issued a declaration granting religious toleration to them as well as to Protestant dissenters. Charles II had failed to make good a similar declaration in 1672, and James was clearly cautious in his approach. He had already purged some of its most likely opponents—the most rigid Anglican magistrates—from their posts across the realm. His declaration relied upon his prerogative powers tosuspend penal laws outright, although in the case of the Test Act of 1673 he merely ordered that the oaths and declaration it required not be administered. He anticipated his actions would be endorsed by the next Parliament. A year later, with the meeting of Parliament postponed, he reissued his Declaration, again on the strength of his prerogative powers of dispensing with and suspending laws.
James’s action elicited a storm of protest and a flurry of pamphlets on the extent of the royal power to dispense with or suspend a law, or in this instance a batch of laws. “The King’s Dispensing Power” defends James’s action and provides a detailed explanation of the royal power to dispense with laws as then understood by supporters of the Crown. The tract appeared in only a single edition.
There being a sort of Men in this Kingdom, who think themselves no longer Happy, than they are in a Capacity to Destroy all those that dare not commit the Conduct of their Souls unto them, do all they can to Asperse the Government and call the most Odious Reflections imaginable on Majesty itself. And, that their Design may be the more successfully accomplished, they boldly affirm, That His Majesty intends nothing less than an Introducing Popery in an Arbitrary way; an Insinuation equally Malicious and Unjust, and directly contrary to the Stream of the King’s Proceedings, which are for the Establishing Liberty of Conscience on such Just and Equal Foundations, as may make it Unalterable, and secure to all the free Exercise of their Religion forever. However, the Cry is, That nothing but Popery, in Dominion; That nothing but a Getting the Legislative Power into the hands of Roman Catholicks, is the Design; and the chief Argument urged to perswade the People to believe so much, is taken from His Majesty’s Dispensing with some Laws, and putting some Papists into Places of Trust and Profit. But such as impartially weigh all Circumstances, cannot but conclude, That seeing all men, of what Perswasion soever, in Matters Religious, put most Confidence in those that are of their own Religion (if men of Principle) it’s Unreasonable to expect His Majesty should not do so too. And seeing there are a multitude of Laws that Deprive the King of their Service, if the Dispensing Power be really a Part of His Just Prerogative, it must be acknowledged to be highly Rational, that His Majesty, to the end He may have the Service of those He can mostly Trust, should make use of it. And so long as His Majesty keeps within those limits, our Learned Lawyers universally Recognize to be the Boundaries of the Prerogative, there is no Wrong done Us. The King doth but exercise a Just Power for His own greater Safety; and what is further to be Regarded, this Prerogative is not only exercised for the sake of the King and the Papist, but moreover for the Relief of the Protestant Dissenter, who hath been a long time laid aside, as an useless Member of our Body Politick.
In a word, His Majesty is Resolved to do His uttermost, that the Persecuting Power, which hath proved most fatal to these Kingdoms, be destroyed, which can never be, so long as the Government is Lodged with those, who are for Persecution. It is Liberty of Conscience, to the want of which most of our Late Miseries must be imputed, that the King desires to Establish, which can never be effected, if those in Places of greatest Trust and Profit be against it. And daily Experience assures us, That although there are many brave Gentlemen of the Church of England Communion, who will most heartily concur with His Majesty, that this most Glorious Design be obtained, yet there are not enough of that Church, so nobly disposed to do it: for which reason should none but those, who can qualify themselves as by Law required, be Imployed in the Government, we must count on our being once more a Miserable People. The Laws made in the Late King’s Reign1having deprived His present Majesty of the Service of a Great Part of His Subjects, it’s become Impossible for the King, so long as these Laws are strictly observed, to do what is necessary towards the Settlement of the Nation’s Peace, or the Advance of His People’s Happiness. If then it be in the Power of the King to Dispense with those Laws, the Arguments for the doing it will be found after the strictest Scrutiny to be Impregnable. Thus much is so very plain and manifest, that I doubt not but every Good man will be of the same Opinion with me, viz. If the Dispensing Power be a Jewel Inherent in the Imperial Crown of England, it is become absolutely necessary, that the King, in the present Juncture, make use of it.
Our Enquiry therefore must be, Whether it be in the Power of the King to Dispense with those Laws, that Deprive Him of the Service of His Subjects, and with such other Laws as are a manifest Grievance to the Subject?
And that what I do in this may be for the Greater Satisfaction of those who are thoughtful about it, I will shew what is meant by a Dispensation, and in what Cases His Majesty may Dispense with our Laws: Indoing which, I shall have a fair Occasion to evince, That although the Dispensing Power is at this time necessarily exercised in order to the Establishing our Liberty, yet it can never be used to Destroy it.
The Dispensing Power Explicated; That It Is a Jewel Inherent in the Imperial CROWN Fully Proved.
A Dispensation imports more than Interpretation, but less than Abrogation, and is a Voluntary Act of the Prince’s Grace and Favour, exempting particular Persons, or a Community from the Obligation of a Law, that still continues in its Being, to Oblige those who have not a Dispensation given them.
It is more than Interpretation, because Interpretation doth not Release to any the Obligation of a Law, it only declares that it doth not oblige in this or the other Case.
It is less than Abrogation, for by an Abrogation the Law is absolutely Revoked. When a Law is Abrogated, there remaineth no Obligation on any at any time; But though the Law be Dispensed with, yet the Obligation abides on those, who have not a Dispensation; or, if it be General to a Community, it must be only for a time. Some Limitation, either as to Persons or Time, there must be in a Dispensation, to distinguish it from Abrogation. The Obligatory Power is taken off, which must be either from Some Persons only, or from All; If from All, it must be for Some Time only, or forever. If the Obligation be removed from Some only, or from All for some time only, it is a Dispensation, and the Law continues in Being: But if the Obligation be taken away from All forever, it is an Abrogation, and the Law ceases to be a Law. For which reason, the Learned, when they write of Dispensations, do thus express themselves: Dispensatio importat amotionem Obligationis Praecepti in casu, & quoad aliquid, vel aliquos, vel quoad omnes ad aliquod tempus; adding, Si enim Dispensatioesset Universalis ad omnis, & insuper perpetua, procul dubio re ipsa esset Revocatio.2
This Dispensation, which falls short of Abrogation, belongs not to Legislation, but to Jurisdiction, which is entirely in the Person of the King, and according to our Constitution, the King may Dispense with whatever is but Malum Prohibitum, and with all those Laws that Deprive Him of the Service of His Subjects.
To clear this, it must be Observed, That amongst our Laws, some are Declarative of what is Evil in itself, and they cannot be Dispensed with. What is Malum in se, is Malum omni respectu, it is Evil in every circumstance, even to every Person, and at all times. And those Laws that fall under this Line, are so far from coming within the Circle of the Dispensing Power, that they cannot be abrogated by those that are Intrusted with the Legislation. On which occasion some esteeming Liberty of Conscience to be Established by the Law of Nature, affirm, That to Restrain it, is malum in se, and that therefore all Poenal Laws for Religion were ab initio, void and null. But be the Legislative power as Immense and Boundless, as our Lawyers generally averr, yet the Dispensing Power is confined within a narrower Compass, and is not strong enough to vacate what is malum in se. However, what is but malum Prohibitum may be Dispensed with; that is, those things that are Unlawful, only because made so by some particular Act or Statute, may be Dispensed with. Though there were weighty Reasons moving those, with whom the Legislative Power is Intrusted, to make such Laws, yet the things were not Unlawful to be done, antecedent to the making the Law, and are therefore called Mala Prohibita, in contradistinction to Mala per se. And notwithstanding, the making these Laws are for the General Good, yet they may prove Inconvenient to some particular persons, as soon as made, and to many more in Process of time; and therefore it is requisite, that with the King a Dispensing Power be Lodged, whereby the Parties grieved may find Relief. So our Lawyers, Dispensatio mali Prohibiti est de jure Domino Regi concessa propter impossibilitatem praevidendi de omnibus particularibus, & est mali prohibiti provida Relaxatio, utilitate seu necessitate pensata.3Vaughan hath it more fully thus. An Act of Parliament which generally Prohibits a thing upon Poenalty, which is Popular, or only given to the King, may be inconvenient to divers Particular Persons, in respect of Person, Place, Time, &c. For this cause the Law hath given Power to the King, to Dispense with Particular Persons. But that Case touches not upon any Inconvenience from the Largeness of the King’s Dispensation, in respect of Persons, Place or Time, which the Law leaves Indefinite to the Person of the King, as the Remedy of Inconveniences to Persons and Places, by the Poenal Laws, some of which may be very inconvenient to many Particular Persons, and to many Trading Towns, others but to few Persons and Places, and the Remedy by Dispensation, accordingly must sometimes be to great numbers of persons and places, and sometimes to fewer.
The distinction between malum per se, and malum prohibitum, is grounded on that old Rule, taken from the Case of II Hen. 7. where it is with great strength of Reason affirmed, That with malum prohibitum, by Statute the King may Dispense, but not with malum per se. What is said by our Lawyers in the Explications they give of this Distinction, we need not trouble ourselves with, it being sufficient to our purpose, that it is warranted by our Law-Books, That where a Statute prohibiteth anything upon a Poenalty, and giveth the Poenalty to the King, or to the King and Informer, there the King may Dispense.
But as for the Dispensing Power, touching those Laws, which Deprive the King of His Subjects’ Service, it is grounded on a Prerogative inseparably incident to the Person of the King, of which our Laws are as Tender as of the People’s Rights. And that I may the more clearly state this Case, I will do it as near as I can in the words of Sir Edward Coke, the Great Oracle of our Laws, who is well known to be rather more concerned for the Liberty and Property of the Subject, than for the Prince’s Prerogative.
This great Lawyer assures us, that no Act of Parliament can bind the King from any Prerogative, which is Sole and Inseparable to His Person, but that he may by a Non Obstante4 Dispense with it. And He instanceth in a Case of the same Nature, with what is at this time under debate, declaring, That a Soveraign Power to Command any of his Subjects to Serve Him, for the Publick Weal, is Solely and Inseparably annexed unto his Person, and that therefore this Royal Power cannot be Restrained by Act of Parliament, neither in Thesi, nor in Hypothesi,5 but that a King, by his Royal Prerogative, may Dispense with it, for upon Commandment of the King and Obedience of the Subject, doth His Government consist. So far Sir Edward.
Besides, our Lawyers universally hold the Service of the Subject to be due to the King before any Judicial or Municipal Laws had their Being, and therefore due Jure Naturali. The Reasons they give for this, are Cogent, as, 1. That Government and Subjection were long before any Municipal or Judicial Laws. 2. For that it would have been in vain to have prescribed Laws to any but to such as owed Obedience before, in respect whereof they were bound to Observe them. Frustra feruntur Leges nisi subditis, & Obedientibus;6 and for this cause it is, that the Prince is termed our Natural Lord, and we His Natural Subjects, and our Allegiance Natural, it being due to him by the Law of Nature, which is Immutable, for Jura Naturalia nullo Jure Civili dirimi possint;7 So that if we should strictly pursue this Argument, we must conclude, that those Acts of Parliament which deprive the King of His Subjects’ Service, are rather ab initio, void and null, than Indispensable. Thus an Act of Parliament in the time of Henry 3. De Tallagio non Comedendo, (Title Purveyance Rasta) which barrs the King wholly of Purveyance is void, as it appears in Co. lib. fol. 69.
However, I insist not on this, it being my design at this time to urge what about the Dispensing Power, hath been long ago universally taken for Good Law, which I shall most effectually perform, by giving not only the Opinion of our Learned Lawyers, but by adding some of the many Cases Judicially determined by our Judges.
By the 4 Hen. 4. c. 32. it is ordained, That no Welshman be made Justice, Chamberlain, Chancellor, Treasurer, Sheriff, Steward, Constable of a Castle, Receiver, Escheator, Coroner, nor chief Forrester, nor other Officer, nor Keeper of the Records, nor Lieutenant in any of the said Offices, in no parts of Wales, nor of the Counsel of any English Lord, notwithstanding any Patent made to the contrary with this Clause (non Obstante quod sit Wallicus natus) and yet (saith Sir Edward Coke) without Question, the King may Grant with a Non Obstante.
By the 8 Rich. 2.c.2. it is Ordained and Assented, That no man of the Law shall be from henceforth Justice of the Assizes, or of the Common Deliverance of Jails, in his own Country, and yet the King (said Coke) with Special Non Obstante, may Dispense with this. And the Reason is, because this belongs to the Inseparable Prerogative of the King, viz. His Power of Commandment to Serve.
Furthermore, whenever a particular Statute interferes with the Prerogative, that is Incident inseparably to the Person of the King, the King’s Dispensation, with a Non Obstante, is Good, although the Statute be most Express to the contrary. Thus the Royal Power, to pardon Treasons, Murders, Rapes, &c. is a Prerogative Incident Solely and Inseparably to the Person of the King. And although there is an Act of Parliament to make the Pardon of the King void, and to restrain the King to Dispense by Non Obstante, and to disable Him, to whom the pardon is made, to Take or Plead it, yet it shall not bind the King, but that He may Dispense with it. And this is well proved (saith my Lord Ch. J. Coke) by the Act 13 Rich. 2. parl. 2. c. 1. For by this it was Enacted, That no Charter of Pardon from henceforth be allowed, by whatsoever Justices, for Murders, Treason, Rape of a Woman, nor be specified in the said Charter, and if it be otherwise, be the Charter Disallowed. It must be observed, that this was the surest way that the Parliament could take to Restrain the King to pardon Murder, unless that He pardon it by Express Terms, which they thought the King would not, for they knew, that the King could not be Restrained by any Act to make a Pardon; For Mercy and a Power to Pardon, is a Prerogative incident Solely and Inseparably to the Person of the King: And it hath been oft-times adjudged, that the King can pardon Murder by General Words, without any express mention with Non Obstante the said Act.
To come more close to the Case before us; by the Statute of 23 Hen. 6. c. 8. it is provided, that all Patents made, or to be made, of any Office of a Sheriff, for term of years, for Life in Fee-simple, or in Taile, are void, and of no Effect; any Clause or Parole de Non Obstante put, or to be put into such Patents to be made, notwithstanding.
This Statute of Hen. 6. was made (as appears by the Purview of the Act) to Redress the many Grievances and Oppressions the King’s Leige People were exposed unto by those Sheriffs that Held their Offices for Terms of Years, &c. and it did Revive those Statutes that were long before made to the same effect, viz. 14 Ed. 3 & 42 Ed. 3. And it was further Ordained, That 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 bare the Office of Sheriff, within any County of England, by the same Authority. And notwithstanding that, by this Act, I. The Patent is made void; 2. The King is restrained to Grant Non Obstante; 3. The Granter Disabled to take the Office; Yet the King (to use Sir Edward’s own Words) by His Royal Soveraign 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 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 was it Resolved by All the Justices of England, in the Exchequer Chamber. 2 Hen. 7. 66.
The Safety of taking a Dispensation Evinced.
This is more than enough to evince, That the Dispensing Power is no New Thing, for, above Two hundred years ago it hath been Judicially Resolved by all the Judges of England, That the King, by a Non Obstante, may Dispense with those Laws that Deprive Him of the Service of His Subjects, and by comparing the Statutes made in the Late King’s Reign with those of 14 Ed. 3. 42 Ed. 3. & 23 Hen. 6. ’twill appear, That the Reason of the Old Statutes was more weighty, and the Caution taken to prevent a Non Obstante Greater than what is in the New; and yet then the King might Dispense, and therefore much rather may His Present Majesty do it. And seeing the Dispensation exempts from the Obligation of the Law, they who are Dispensed with, though not Qualified, are secure enough, from the Poenalty; for, where there is no Transgression, there no Poenalty is Incurred; and where no Obligation, there no Transgression. Thus much must be inculcated, A Dispensation, I say, is more than a Security from the Punishment, for it releaseth unto those that have it, the Obligation of the Law, and therefore they cannot be fully esteemed either Violaters of the Law, or liable to the Punishment, especially considering that this Case hath been very Lately determined Judicially by His Majesty’s Judges, who are a Skreen between the Severity of the Law, and those Gentlemen that act according to the Judges’ Resolutions, on which account, whoever in Obedience to His Majesty’s Command, do Serve the King, and Unqualified, enter on Places of Trust with a Dispensation, in which is a Non Obstante to the Act of Parliament, they are most safe.
Not only a particular Dispensation will be good Security, but a Dispensation under the Broad Seal, to all that cannot conform to the Church of England, will be sufficient, such a Dispensation especially, if but for a time, is vastly different from Abrogation, for it doth only exempt Dissenters from the Obligation of that Law, that continues to bind all those who do Conform, even when by Abrogation as has been already noted, the Law is absolutely vacated, and obliges none.
That where the King can Dispense with particular Persons, He is not confined to Number, or Place, but may Licence as many, and in such places as He thinks fit, is abundantly proved by those Arguments, that evince it to be in the Power of the King to grant Dispensations to a Body Corporate, or Aggregate, as well as to Private persons.
Whoever desires further satisfaction touching this matter, will see enough in our Law-Books, particularly in Vaughan’s Reports, where there are gathered together a Multitude of Precedents of Licences to Corporations.
The King’s Exercise of His Dispensing Power Cannot Hurt Liberty of Conscience.
THE King’s Dispensing Power, in those Instances, wherein His Majesty Exercises it, and the Safety of those, who, though they cannot take the Imposed Tests, do yet, under the Protection of a Dispensation, enter on Places of Trust and Profit, being Cleared, I will go on to shew, that the nature of a Dispensation is such, as makes it manifest, that a Law establishing Liberty of Conscience, cannot be prejudiced by the Dispensing Power.
In the Description given of a Dispensation, it is express, that it is Mali prohibiti provida relaxatio, it being an Act of the Prince’s Grace and Favour, designed for the Relief of the Oppressed, for which reason, that Law, which gives Ease to All and Oppresses none, falls not within the Compass of a Dispensation. It would be scarce Sence to say, That a Law, by which the Peace and Quiet of the Subject is Established, may be Dispensed with; for, to turn it into plain English, it must be thus, The Obligation of that Law, by which the Peace and Quiet of the Subject is Secured, must be Released to this or the other man, that thereby they may Enjoy the greater Peace; that is, Their Ease shall be secured by taking away their Security. In like manner, the Talk of a Dispensing with a Law, to the end the Subject may be Oppressed, is much to the same purpose, for it is to say, that by giving Relief to a man you Oppress him. A Dispensation is an Instrument of Ease; To give a Dispensation then, to the end you may Oppress, is to give Ease, that thereby you may grieve and afflict those who are Oppressed.
If we look into this Matter a little more closely, ’twill with much Evidence appear to be Impossible for the Dispensing Power to Hurt Liberty of Conscience, for whenever a Law for Liberty is enacted, all Poenal Laws for Religion must be Repealed, so that no man can be exposed to Suffer for his Conscience, until a new Poenal Law be made, which cannot be done by the Dispensing Power. Though the Dispensing Power exempts from the Obligation of a Law in Being, yet it gives not Being to a Vacated Law. If then all Poenal Laws for Religion be Abolished, Liberty of Conscience can meet with no Molestation. For, unless there be some Poenal Law in force against this or the other Religion, no man can be exposed to any Poenalty for his Conscience. There must be a New Law enacted, or our Liberty remain firm; and seeing the Dispensing Power cannot Repeal nor make a Law, we are in no Danger from the Prerogative in this Respect.
And whereas it is maliciously suggested, That if the King may Dispense with those Tests that deprive Him of the Subject’s Service, He may as well Dispense with the Parliamentary Tests too, and bring into either House whom He please, even such men as will make Poenal Laws against Protestants.8 I deny this, I deny that there is such Connection between the Dispensing Power in the one case, and the other, that the Recognizing the One necessarily, should infer a Power to Grant the Other. The men that insinuate thus much, give the King a Higher Prerogative than He desires; for it’s Notorious, that in the one Instance the King can Dispense, and if He might as well do it in the other, What should hinder His Majesty to Dispense immediately with the Parliamentary Tests, and do His Work?
But you see the King claims no such Prerogative, and, Why should He be suspected to do it hereafter? There is more Reason for it at this time than there can be after the Poenal Laws are removed; for it’s not to be doubted, but that it’s more on the Heart of the King to set men of His own religion at Ease, than to Ruine and Destroy others. And if He cannot Dispense with this Parliamentary Test, He can no more Dispense with another such Test. And notwithstanding anything the Objector urges, I must persist, there is a manifest difference between Dispensing with such Test Laws as Rob the King of his Subjects’ Service, and those Test Laws that exclude some men out of the Legislation. Though no Act can bind the King from any Prerogative that is sole and inseparable to His Person, but that He may Dispense with it by a Non Obstante, as a Soveraign’s Power to Command his Subjects to Serve him: Yet in things that are not solely and Inseparably Incident to the Person of the King, but belong to every Subject, an Act of Parliament there (as Sir Edward Coke has it) may Absolutely bind the King. And it’s well known, that though the Service of the Subject belongs solely to the Person of the King, yet the Legislative Power is not solely Incident to his Person, for the people have a share in it, which is enough to shew a difference between Case and Case, and that the holding, That His Majesty has a Power to dispense with the One kind of Tests, doth not infer a Power to Dispense with the other.
Nothing doth more nearly concern the Subject, than an Interest in the Legislation, for by a Concurrence of the Two Houses with the King, Liberty and Property may be made a most precarious thing. The King, with His Parliament, may dispose of them as They please. For, as the Commons are the King’s Subjects, so they are the People’s Representatives and Trustees, and by what they do, every Subject is determined. What Laws therefore are made, shewing the Qualifications, those persons must have, to whom the People commit so great a Trust, must be Indispensable, or the People cannot have that full Security of Liberty and Property, which by the Ancient Constitution of our Government is their Right. And on this account a Dispensation in the present Case is with the Subjects’ Right, and is a Wrong unto them, and not within the King’s Power to Grant.
“The King cannot Dispense in any Case, but with his own Right, and not with the Right of any other.”
“To Violate men’s Properties is never Lawful; but a Malum per se, as that Book is of 2 Hen. 7. and according to that of Bracton.”
“Rex non poterit gratiam cum Injuria & damno aliorum. Quod autem alienum est, dare non potest per suam gratiam.”9
“On this ground it is that some Poenal Laws, punishable at the King’s Suit by Indictment or Presentment, the transgressing of which, is the Immediate wrong of Particular Persons, for which the Laws give them Special Actions, with which the King Cannot Dispense. As He cannot Licence a man to Commit Maintenance, to make a forcible Entry, &c.”
“If in a Law all the King’s Subjects have an Interest, the King Cannot Dispense with it, any more than with the Common Law. And a Disability in this Case cannot be dispensed with; as was adjudged in Sir Arthur Ingram’s Case.”
“Likewise by the Statutes of 5 Eliz. Every Person, which shall be Elected a Knight, Citizen, Burgess, or Baron of the Cinque Ports for any Parliament, before he shall enter into Parliament House, shall take the Oath of Supremacy, appointed by the Act of 1. Eliz. and that he that entereth into the Parliament, without taking the said Oath, shall be deemed no Knight, Citizen, Burgess, or Baron, nor shall have any choice, but shall be as if he had been never Returned or Elected. Here be Words (saith Sir Edward Coke) that amount to a Disability, and therefore, that according to the former Resolutions, the King cannot Dispense with the same.”
This I must stand upon, as what plainly Appears from the Reason of the Thing, and also from the Opinion of our Judges, that there is a very great difference between the King’s Dispensing with the Laws, that Deprive Him of His Subjects’ Service, and those that Secure His People’s Rights, and that although the one is within the King’s Power to Dispense, the other is not.
On the Whole it’s clear.
I. That it belongs to the King’s Prerogative to Dispense with all those Poenal Laws, that are a Grievance to the Subject, or Deprive His Majesty of His Subjects’ Service.
A Prince had never a more fair Occasion to exercise the Dispensing Power, than our King has, who by it hath Saved a Nation from Ruine, and given that Ease to Conscience, which renders unto Thousands the greatest Satisfaction imaginable. For which cause it cannot but surprize the Impartial and Unbiassed, to find those Gentlemen denying the Dispensing Power to belong to the King, that for many years together have boldly affirmed, the sole Legislative Power to lie in His Breast: Especially considering, that the Prerogative has been no less Exalted by them to the Vexation of the Dissenter, than at this time Deprest, when exercised only for the Relief of the Oppressed; which sufficiently demonstrates that our High-Church-men are for the Prerogative, if by the Help thereof they may Establish their own Domination and Grandeur; but will be against it if His Majesty exercises it for the Benefit of the Dissenter, which is a thing that cannot (as some do foolishly insinuate) be for the Honour of the Protestant Religion.
II. That those to whom a Dispensation is given, may in Obedience to the King’s Command, safely enter on places of Trust and Profit, anything in the Test Laws notwithstanding.
For, [without insisting on a Consideration that hath its weight too, viz. That the Conviction must be at the King’s Suit, by Indictment or Information before the Penalties be incurred, or the Person disabled by the said Act, in which His Majesty can at pleasure Non Pros, or Pardon and thereby secure him from Danger, although he had no Dispensation]. I have from the Nature of a Dispensation Evinced, That those Dispensed with do not Transgress the Laws; They incurr not on the Poenalty, and therefore are in no danger, especially considering, that very Lately the Judges have, in a Judicial way, determined it; for hereby had the Judges’ Resolution been Contrary to Law, yet the Gentry, and others, who must Govern themselves by the Judges’ Resolutions, run no hazard by entering on places of Trust, with a Non Obstante the Act of Parliament: How much less than where the Case for many hundred years together has been cleared?
The Result of which is, That it’s much more Safe for Dissenters to take a Dispensation, than Contrary to their Conscience submit unto the Abjuring of Sacramental Tests. The Case is plain. Take a Dispensation, and you run no hazard in this World, or that which is to come: But if you Abjure the Covenant, or take the Sacrament, according to the usage of the Church of England, contrary to the plain and manifest Convictions of Conscience, you may be miserable here and hereafter too.
III. That the King’s Exercising this Dispensing Power cannot in the least hinder the settling Liberty of Conscience on such just and Equal Foundations as to put it out of the Power of any King to Alter it by Prerogative.
Let the Persecuting of any man, upon the Account meerly of his Conscience, be declared Malum in se, in such an Act as passes for Liberty, and that Act must thereby be rendered Indispensable.
Published with Allowance.
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Anon, The Clergy’s late Carriage to the King
Clergy’s late Carriage
In a Letter to a Friend.
Allowed to be Published this 2d Day of July, 1688.
This anonymous tract in the form of a letter appeared three days after the trial and acquittal of the Archbishop of Canterbury and six other bishops for seditious libel. The bishops had been cited for their petition to James questioning his dispensing power in ecclesiastical matters and refusing to order his Declaration of Indulgence to be read from the pulpit as he had commanded.
On 27 April 1688 James had reissued his Declaration of Indulgence for religious toleration with its suspension of the penal laws. While the king claimed he would present the Declaration to the next Parliament for its approval, he issued it on the strength of his prerogative powers alone. Unlike his earlier declaration, this time the king ordered that it be read on two consecutive Sundays in every Anglican church. On 18 May the Archbishop of Canterbury and six other bishops presented a petition to James asking that the order be withdrawn. They pointed out that they had an obligation to defend the Act of Uniformity and that in 1663 and again in 1673 Parliament had rejected the use of the suspending power in such cases. Their petition was published the next day whereupon the seven bishops were charged with seditious libel and clapped in the Tower. Their trial took place on 29 June.
The trial was distinguished by the eminence of all concerned—theaccused, the defense counsel who included a former lord chief justice, a former judge, and two former attorneys- and solicitors-general. While the chief justice claimed the suspending power was not at issue he allowed it to be discussed. Indeed, two of the puisne judges argued against the suspending power and for acquittal. To great public jubilation the jury returned a verdict of not guilty. The next day James dismissed the two outspoken judges from the bench.
“The Clergy’s Late Carriage to the King” defends James and presents arguments in support of his suspension of penal laws. Beyond this it points out the embarrassing inconsistency in the attitude of Anglican clergy who always professed themselves believers in divine right monarchy, but were prepared to oppose their king when they disliked his orders. The charge was true enough, although passive resistance, as preached by the Church of England, permitted loyal subjects to refrain from obeying illegal commands so long as they passively suffered any necessary punishment. At any rate the charge of inconsistency highlights the difficult situation in which divine right clergy found themselves and their solution in extremis. The tract appeared in a single edition.
Perhaps I am in the wrong, but I beg your Pardon if I can’t think so, when I don’t know it. On the contrary, I grow more assured in my Opinion, since the other Night, by all the Reflections I could make upon what past between us. It seems, I say unaccountable to Good Sense, Duty, Modesty, and everything that becomes a dutiful Subject (to say nothing of the Christian) that the King was not only not obeyed by the Clergy, where it was no Sin to do it, but where the Obedience was purely Ministerial. Had it been to renounce their own Religion, or to receive His, it had been something; but when it was to secure every Religion from Violence and Persecution: Nay, when it was a Declaration of His Mind about a good Work, and not of Theirs: No new Declaration of Liberty of Conscience, but a Publication of what He had done last Year; and that what was New in it, was only the King’s Resolution to have a Parliament next Winter, in order to have that past into a Law, which the Bishops seemed only to dislike for want of being done by Law and Still to resist their King and Head, I say, this is something surprizing. In short, the Declaration was in its first part meerly Historical, what the King had done April 1687,1 the last part what He would do, to wit, have a Parliament in November next at farthest to Establish this Liberty of Conscience. And as this was in truth the Business of the Declaration, the other but the Preface to it, so with trouble I say it, that this makes their Disobedience the more suspected, and unreasonable; for they refuse to tell the World, the King would have a Parliament to confirm the Liberty, which yet they profess to be for, in Parliament. I say, this looks with an ill Air, and carries too great a contradiction for Men of their Function and Learning; and yet so it must be, or they are insincere in their Petition. But this is not all; The Reverence these Gentlemen have always profest for the Monarchy, Their Opinion of the mighty Power of it, The Character they have fixt on those that have been scrupulous to obey it, in Cases less clear than this, is an aggravation of their Misfortune; for at this rate no inferiour Minister is so much as obliged to report the Act of a Superiour, if it is not suitable to his own Judgment. A Clark of a Court may refuse to read an Inditement, because he thinks the Man Innocent that is impeached at the Bar by it. No Sheriff ought to read a Proclamation, or execute an Offender unless his Judgment concur with that of the Prince or the Judge. It carries (whatever they think of it) the power of Questioning the Commands of Superiours into all the capacities and relations of Life, even where it is no matter of Faith. If I bid my Servant go tell a Man I deal with, He has used me very dishonestly, at this rate he may refuse for this reason, That truly he has a better opinion of him, and therefore won’t go of my Errand. Had the King set up for Lawmaking, or intended finally to abrogate Laws, or suspend Laws made against anything that was evil in itself, or Laws that preserve Property instead of those that take it away; or that it had touched upon matters of Faith, or the Worship of God, or intrenched upon any Priviledge that belongs to the Church of England; or if He had required them to read the Opinion of the Judges about the Dispencing Power, or a Treatise in defence of it, in order to Endoctrinate the People, they might have had room for some Exception, and yet in this latter Case perhaps they had been little more than Ministerial too. But when it was only to tell his Subjects, in the most effectual way (more going to Church than to Market) that whereas He did emit a Declaration in 1687 for Liberty of Conscience, (the Historical part) He resolved in November next, at farthest, to hold a Parliament for the Confirmation of it: Give me leave to say, without offence, It looks as if the Exception were a Cavil and not a Scruple.
By whom else should the Ecclesiastical Head speak to the Ecclesiastical Body? for it therefore seems to me reasonable that they should have read it in their Churches, because they are the State Meeting-Houses, and the Clergy the State Mouthes. Will they claim their Legal Priviledges, and not bate an Ace of being the Church of England as by Law Established, and yet refuse to let the Head speak by them the Mouth, His mind to the People, his Ecclesiastical Body? Can this consist with Ecclesiastical Headship and Obedience? where no Assent or Consent was exacted from them, nor were they to require it of the People; but as I said before, a meer Report of the King’s Mind, referring to a publick future Act, of which the People’s Information was requisite for their own Benefit and Content, as well as the King’s Service. I say, for the Clergy to refuse their Head, and this Head too, that they so generally and earnestly desire to wear upon their Shoulders, and at this time of Day, and about a thing they say they have a due tenderness to, has an appearance as if they would widen Breaches and highten Animosities, ay, ripen and head them, too, instead of suppressing them. I say, it looks so, for I would fain have a better opinion of their Loyalty and Conscience than to think they meant it. However this Conduct goes too far, thus to strive and chicane with their Prince, and by popular pretences to raise themselves upon the breath of the Rabble above the duty they owe Him, this is at least the appearance of Evil, and unbecomes Men of Peace and Religion, to be sure such as pretend to be the Successors of the Apostles, that command Obedience for Conscience’ sake, where Conscience was not imposed upon, and has been pleaded by this very Clergy against Dissenters, to urge their Conformity where matters of Faith and Worship to God were concerned.
Though this, I say, and not Religion, be the Case, yet such is the Malice of the World, as to say it, and such has been their Weakness, as to give occasion for it. I confess that has been the uneasiest part to me, that they have acted, I mean their Mock Martyrdom, to force Suffering and act it to a Farce. What else can be their Blessing People ten deep of a side, with Have a care of your Religion, be faithful to your Religion, the Lord strengthen you &c. and whilst not one tittle of their Religion, but the Liberty of other Men’s was the Case: What shall an honest Man think of this? when the plain English of the matter was that they went to the Tower for not reading a Declaration for settling of Liberty of Conscience by Law, to hinder them from ever making Martyrs of other Men anymore for Conscience’ sake. This is the Point before God and Man, after all the bustle their Nonresisting Principle has suffered them to make; and ’tis this I am scandalized at, to see a jest acted so much in Earnest, and Religion made one, and profained too, by such forced pretences. God give them Repentance and confirm the King in his wise course of Moderation: For the Liberty when settled will shame its Enemies, and save and encrease the number of its Friends, for whatever is suggested by ill Men, ’tis Liberty of Conscience that is aimed at. Liberty built upon a Rock and not a Sand: To be framed to exclude any one Party from the Power of endangering the rest: Can we honestly fear Popery should break this Liberty, when it even becomes a security against the more refined Popery of the Church of England? What will prevent the less cannot admit the greater. The Net which will catch a little Fish, will not let a greater pass. How unjust therefore are the Jealousies of those, and how impudent their Words that prejudge that matter, and will not leave it to the only place where the Trial of the sincerity of all Parties can be made? I mean a Parliament. To that time I refer the whole Controversy, and do beg all Parties to prepare to make the Session happy in trying not how to divide, but unite upon this great Point; where if the Bishops shew their conversion to Liberty, by a tenderness truly due to Conscience in every Party, I shall heartily change the opinion, their contrary practise, for so many Years past, has constrained me to entertain about them, but till then I have greater reason to count their present Zeal A fit of Art, than they have to suspect the Court of insincerity in the business of the present Declaration: A thought that Seven Years ago would have been with them Insufferable in a Dissenter, especially about any Act of power in the Clergy’sfavour. What then can one call Their crime, that in the name of Religion, and Law, can bring themselves to contest their King’s command, upon his Judges’ Opinions, in a case of so much mercy and goodness? For such an one this is, and the effect of it Heaven hath already blest. It is what might have become the greatest, and best of Princes of former Ages, but it looks as if it had been reserved for the glory of him that now Sways the English Scepter; and I confess I can’t refrain hoping this goodness of his, will give Example, even where his power can’t give Law.
London, Printed for H. L. and I. K. and Sold by most Booksellers in London and Westminster.
[1. ]Roger L’Estrange, “An Account of the Growth of Knavery” (London, 1678), Wing L1193.
[2. ]Andrew Marvell, “Account of the Growth of Popery” (Amsterdam, 1677), Wing M860.
[3. ]Andrew Marvell, “A Seasonable Argument to Perswade All the Grand Juries” (Amsterdam, 1677), Wing M885.
[4. ]Richard Hooker, Of the Laws of the Ecclesiastical Polity, book I, chap. 10, 8.
[5. ]The passage cited is from Patriarcha, chap. 31, by Robert, not Henry Filmer.
[6. ]The head, beginning, and end of Parliament.
[7. ]Companions, or court.
[8. ]Because they are in the court or retinue.
[9. ]For ruling or governing the people.
[10. ]Equals in cares (responsibilities), unequal by the crown alone.
[11. ]From “A Brief Discourse concerning the Power of the Peers, and Commons of Parliament, In point of Judicature,” Cottoni Postuma: Divers Choice Pieces of that Renowned Antiquary, Sir Robert Cotton, J. H. [James Howell] Esq., ed. (London, 1679), 348-49.
[12. ]King John.
[13. ]As many as there are lords, so many are there tyrants.
[14. ]A contradiction in terms.
[15. ]The brothers disagreeing about the inheritance of the kingdom met in single combat and killed each other.
[16. ]For the kingdom is not divisible.
[17. ]Before you [is] the scepter which Ilione, the eldest of the daughters of Priam, formerly wielded.
[18. ]Those things having to do with jurisdiction and peace pertain to no one else but the Crown, and the royal dignity, nor could they be separated from the Crown, even though they support the Crown.
[19. ][From Gottfried or Godfrey] Query: Can the Prince cede the royalty to another? He can, given a special set of proportionate circumstances, lest he cede his royal rights without supreme necessity; and that he cede them from a necessary cause, so that he not cede all of them. Then that whatever he cedes by his own motion, and that he may cede it spontaneously knowing and prudently, With The Exception Of The Rights Of Princely Rule: because even if what is made an exception were not named explicitly, it is still tacitly understood to be excepted (although he may have a right of initiating action against all those possessing royal rights in his kingdom) and besides the right that at no time it be able to be set forth in writing.
[1. ]“An Exact Collection of the most considerable Debates In the Honourable House of Commons, at the Parliament Held at Westminster the One and twentieth of October, 1680” (London, 1681).
[2. ]A prison.
[3. ]The sections dealing with questions 1 through 5 are included below.
[4. ]13 Car. II, c.1 (1661), An Act for Safety and Preservation of His Majesty’s Person and Government Against Treasonable and Seditious Practices and Attempts, condemns the opinion that both houses of Parliament, or either of them, has a legislative power without the king.
[5. ]In January 1681 the mayor and council of London petitioned the king to summon a parliament, complaining about the interruption of public justice during its prorogation. This petition figured in the indictment against the city in King’s Bench in 1683 as the Crown moved to force London to surrender its charter. See Ogg, England in the Reign of Charles II, 636-39.
[6. ]See “Vox Populi,” 656-57 above.
[7. ]The allies of the realm have no faith, and all power is averse to a partner.
[8. ]I no longer complain that the unjust have grown to the heights. They are raised aloft so that they may fall the more heavily. Seizing a garment, he rebukes the Arcadian who is delaying. He mounts the lofty tribunal. He declares that a sharer of royal power is an ally.
[9. ]Arbates, the King of the Medes: so great was the royal veneration deferring honor to him that it was a death sentence for him to occupy the seat called the throne of Kings. Unable to be subjected to limits by his subjects, he was immune to princely obedience or to his own emendation or to being hailed to court because owing to the regard of his subjects the power of instructing, judging, and chastising is by nature inherent in a prince’s power.
[10. ]Asivius Gallus, when Tiberius by a pretense had sought a part of the commonwealth for himself, questions him, “Caesar,” he says, “what part of the commonwealth do you want mandated to you?” (Soon he mitigates the offense with a look.) He says that he does not ask the question in order to divide what cannot be separated but so that it might be made clear that by his own admissions the commonwealth is a single unit and should be ruled by the will of single man.
[11. ]He had a golden bowl in which both Amasis and his dinner guests always washed their feet. But he broke up the bowl and cast it into a statue of a god, and he placed it in that part of the city where it was most convenient for Egyptians to approach and devoutly worship it. When Amasis learned of this, he summoned the Egyptians and exposed the statue as being made from a bowl in which he had earlier bathed his feet. But now it was worshipped by them with religious awe. Therefore the rationale underlying my present situation is the same as that of my bowls. For I used to be a plebeian but I am your King. So I order you to honor me and venerate me with words. On this basis he in fact reconciled the Egyptians to him and they thought it just to serve him.
[12. ]Sir John Eliot and two other members of the House of Commons were arrested and imprisoned on 3 March 1628/9 after forcibly detaining the Speaker the previous day to prevent an adjournment of Parliament. Charles I was determined to make an example of Eliot for his outspoken opposition to royal policies. When the three members—Eliot, Denzil Holles, and Benjamin Valentine—were finally indicted, it was for seditious words spoken during the actual session as well as for violence to the speaker. This flew in the face of the Commons’ insistence upon freedom of speech during its debates. The judges found in favor of the Crown. The three men were fined but refused to pay. Holles escaped, Eliot died in prison in 1632 (possibly for want of food), and Valentine was finally released in February 1640 just as the Short Parliament was to be elected. In July 1641 the Long Parliament resolved that the proceedings against the three men had been a gross breach of privilege. In 1668 on the motion of Holles himself the judgment of 1630 was at last reversed on a writ of error.
[13. ]7 Hen. VII, cap. 20 (1491), the reversal of the attainder of Thomas last Lord Roos and restitution of his son Edmund.
[14. ]Edmund Wingate, An Exact Abridgment of All Statutes in Force and Use. From the Begining of Magna Charta, untill 1641. With a Continuation, under Their Proper Titles of All Acts in Force and Use, untill the Year, 1670 (London, 1670). This collection was continued down to the year 1681 and reprinted in that year.
[15. ]An Act for regulating the Privy Council and for taking away the court commonly called the Star Chamber, 1642.
[16. ]One thing demands aid in one way, another in another that each may be preserved on good terms.
[17. ]He who lives in the earth has no place from which to fall.
[1. ]The Test Acts passed in 1673 and 1678.
[2. ]Dispensation means the removal of the obligation of a rule in a case and refers to a certain thing, or certain people, or even to all people at a certain time; adding, for if dispensation were universal in regard to everyone, and moreover perpetual, without any doubt it would really be a revocation.
[3. ]Dispensation of a prohibited evil is in principle conceded to the dominion of the king on account of the impossibility of foreseeing all the particularities, and the relaxation of the prohibited evil is provided by a considered utility or necessity.
[4. ]With nothing impeding or standing in the way.
[5. ]Neither in the thesis nor in the hypothesis.
[6. ]Laws are proposed in vain unless proposed to those who are subject to them and who obey them.
[7. ]Natural laws can be set aside by no civil law.
[8. ]The first Test Act, that of 1673, excluded Catholics from public office while the Parliamentary Test prevented Catholics from sitting in either House of Parliament. See 25 Car. II, ch. 2 (1673) and 30 Car. II, st. 2, ch. 1 (1678).
[9. ]The King shall not dispense grace when it comes to the injury or loss to others. But what belongs to another he cannot grant by his own grace.
[1. ]Reference is to James II’s Declaration of Indulgence of 4 April 1687 granting liberty of conscience to all his English subjects.