The Online Library of Liberty

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• Acknowledgments and Dedicatory
• A Note On the Texts, Editions, and Translations
• Introduction
• Chronology of Events
• Editions of Coke’s Works
• Mottoes and Crests of Sir Edward Coke
• I: Reports
• Part One of the Reports
• The Preface to the Reader.
• Shelley’s Case.
• Part Two of the Reports
• (preface) to the Learned Reader.
• Manser’s Case.
• The Case of Bankrupts.
• |[46 A] the Archbishop of Canterbury’s Case. *
• Part Three of the Reports
• (preface) to the Reader.
• Heydon’s Case.
• Fermor’s Case.
• Part Four of the Reports
• (preface) to the Reader.
• The Lord Cromwell’s Case. *
• Cutler V. Dixon.
• Vaux’s Case.
• Slade’s Case.
• Part Five of the Reports
• (preface) to the Reader.
• Foster’s Case.
• Cases of By-laws and Ordinances the Chamberlain of London’s Case.
• Clark’s Case.
• The Case of Market-overt.
• Semayne’s Case.
• Rooke’s Case.
• Pinnel’s Case.
• |[125 A] the Case De Libellis Famosis.
• Part Six of the Reports
• (preface) to the Reader.
• Jentleman’s Case.
• Part Seven of the Reports
• (preface) Deo, Patriae, Tibi. 2
• Calvin’s Case, Or the Case of the Postnati. 1
• The Case of Swans.
• Penal Statutes.
• Part Eight of the Reports
• (preface) Deo, Patriae, Tibi. 3
• Vynior’s Case. *
• Dr. Bonham’s Case.
• The Case of Thetford School, &c.
• Part Nine of the Reports
• (preface) Deo, Patriae, Tibi. 3
• William Aldred’s Case.
• John Lamb’s Case.
• Mackalley’s Case. (in the Killing of the Sergeant of London.)
• Part Ten of the Reports
• (preface) Deo, Patriae, Tibi. 5
• The Case of Sutton’s Hospital.
• The Case of the Isle of Ely.
• Part Eleven of the Reports
• (preface) Deo, Patriae, Tibi. 4
• The Lord De La Warre’s Case.
• The Case of the Tailors of Habits &c. of Ipswich.
• The Case of Monopolies.
• James Bagg’s Case.
• Part Twelve of the Reports
• Ford and Sheldon’s Case.
• Case of Non Obstante, Or Dispensing Power.
• Q. If High Commissioners Have Power to Imprison.
• Floyd and Barker.
• Of Oaths Before an Ecclesiasticall Judge Ex Officio.
• Of Pardons.
• Customs, Subsidies, and Impositions.
• Buggery. 1
• Premunire.
• Nicholas Fuller’s Case.
• Sir Anthony Roper’s Case.
• Sir Anthony Roper’s Case.
• The Case of Heresy.
• Langdale’s Case.
• Mouse’s Case.
• Prohibitions Del Roy.
• The Lord Aburgaveney’s Case.
• Of Convocations.
• Proclamations.
• Thomlinson’s Case.
• Walter Chute’s Case.
• Sir Stephen Procter’s [proctor’s] Case.
• Exaction of Benevolence.
• Part Thirteen of the Reports
• (preface) to the Reader.
• Prohibitions.
• The Case De Modo Decimandi, 1 and of Prohibitions, Debated Before the Kings Majesty.

Case of Non Obstante, or Dispensing Power.

First Published in the Reports, volume 12, page 18.

Ed.: In this note, Coke considers the limits on Parliamentary control of the King, and when the King may act in his prerogative notwithstanding an act of Parliament to the contrary. He resolves that Parliament cannot bind the King in a matter within his personal prerogative but it may in all other matters.

Note; a good diversity when the King shall be bound by act of Parliament, so that he cannot dispence with it by any clause of Non obstante.1 No Act can bind the King from any Prerogative which is sole and inseparable to his person, but that he may dispense with it by a Non obstante; as a Soveraign power to command any of his Subjects to serve him for the publick Weal; and this solely and inseparably is annexed to his person; and this Royall power cannot be restrained by any act of Parliament, neither in Thesi, nor in Hypothesi,2 but that the King by his Royall Prerogative may dispense with it; for upon commandment of the King, and obedience of the Subject, doth his government consist; as it is provided by the Statute of 23 Hen. 6. cap. 8. that all Patents made or to be made of any Office of a Sheriff, &c. for term of years, for life, in Fee Simple, or in tail, are void and of no effect, any Clause or Parol de non obstante, put, or to be put into such Patents to be made, notwithstanding. And further, whosoever shall take upon him or them to accept or occupy such office of Sheriff by virtue of such Grants or Patents, shall stand perpetually disabled to be or bear the office of Sheriff within any County of England by the same authority; and notwithstanding that by this Act, 1. The Patent is made void. 2. The King is restrained to grant non obstante. 3. The Grantee disabled to take the Office; yet the King by his Royall 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 Commonwealth, of which he himself is solely Judge,) to serve him and the Weal publike, 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. And so the Royall power to pardon Treasons, Murthers, Rapes, &c. is a Prerogative incident solely and inseparably to the person of the King; and for this Non obstante an Act of Parliament to make the Pardon of the King void, andrestrain the King to dispense with this by Non obstante, and to disable him to whom the Pardon is made to take or plead it, shall not bind the King but that he may dispense with it: and this is well proved by the Act of 13 Ric. 2. Parliament 2. cap. 1. For by this it was enacted, that no Charter of Pardon from henceforth be allowed by whatsoever Justices, for Murther, Treason, Rape of a woman, not specified in the said Charter; and if it be otherwise, be the Charter disallowed.

Note, This was the surest way that the Parliament could take to restrain the King to pardon Murther, 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 power to Pardon is a Prerogative incident, solely and inseparably to the person of the King: And it hath oft-times been adjudged that the King can Pardon Murther by generall words without any expresse mention, with Non obstante, the said Statute, see 4 Hen. 4. cap. 31. In which it was ordained that no Welshman be Justice, |[19] Chamberlain, Treasurer, Sheriff, Steward, Constable of a Castle, Escheator, Coroner, or chief Forester, nor other Officer whatsoever, nor Keeper of Records, &c. in any part of Wales, notwithstanding any Patent made to the contrary, with clause of Non obstante licet sit Wallicus natus:3 and yet without question, the King may grant this with a Non obstante. So Purveyance for the King and his household is incident solely and inseparably to the person of the King, and for this cause the Act of Parliament held in time of H. 3. De tallagio non concedendo,4 tit. Purveyance, in Rastall, which bars the King wholly of Purveyance, is void, as it appears in Co. lib. fol. 69. But in all such cases, although that the King may dispense with Statutes, yet a generall dispensation or grant without Non obstante is void; But in things which are not incident solely and inseparably to the person of the King, but belong to every Subject, and may be severed, there an act of Parliament may absolutely bind the King; as if an Act of Parliament to disable any Subjects of the King, to take any Land of his Grant, or any of his Subjects (as Bishops) (as it is done by the Statute 1 Jac. c. 3.) to grant to the King, this is good; for to Grant or take Lands or Tenements is common to every Subject; and for this it is not Proprium quarto modo,5 to Kings, Scilicet omni soli et semper.6Vide the Case of Deans and Chapters upon the Statute of 13 Eliz. vide 8 Ric. 2. cap. 2. & 33 Hen. 6. that none shall be Justice of Assise, &c. in the County where he was born or did inhabite; and yet the King with special Non obstante may dispense with this, for this belongs to the inseparable Prerogative of the King, Viz. his power of commandment to serve, &c.

[1. ][Ed.: “Notwithstanding,” a clause or writ in which the recipient is excused from some obligation or basis of duty.]

[2. ][Ed.: Statement [or] by Supposition.]

[3. ][Ed.: Notwithstanding he was born a Welshman:]

[4. ][Ed.: Concerning the not granting of tallage, which is a delegated power to collect tolls or tax.]

[5. ][Ed.: “appropriate in the fourth manner.” Perhaps “fourth branch.” The significance of this reference here has so far evaded the editor and all his friends.]

[6. ][Ed.: that is to say, all, only and always.]