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Anon, The King’s Dispensing Power - Joyce Lee Malcom, The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, vol. 2 [1999]

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The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, 2 vols, ed. Joyce Lee Malcolm (Indianapolis: Liberty Fund, 1999). Vol. 2.

Part of: The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, 2 Vols.

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Anon, The King’s Dispensing Power

Anonymous

the

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.

The Introduction.

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.

SECT. I.

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.

SECT. II.

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.

SECT. III.

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.

finis.

Published with Allowance.

London Printed, and Sold by R. Janeway in Queens-Head Alley in Pater-Noster-Row.

[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.