THose who assert the Affirmative in this Question, do premise these following Rules or grounds, which they take to be so clear, either from right Reason, common Experience, or the Traditional Common-Laws, which are handed to us by such Resolutions of the Ancient Sages of our Laws, as are found in our Law-Books; That if they be refused by any, the Title of Principles, yet they are easily proveable to Lawyers to be of the like nature with Principles, in that Science which most properly judge of this Question.

I. That there is a difference between Malum in Se, which is in its own nature an Offence, and Malum Prohibitum, which being in its own nature Indifferent, comes only to be an Offence because some Law makes it so. 11. H. 7. fol. 11.13. H. 7. f. 8.

II. That no Power upon Earth can give License for the doing or dispensing with the doing of what is Malum in Se, Malum Prohibitum may be Licensed. Cooke Lib. 12. fol. 30.

Note Suspension, Dispensation and License, do in this Questi­on signifie the same thing.

III. That the King cannot Repeal, or totally make void, a Law by his own Single Power without a Parliament.

IV. That Dispensation (whether it relate to the Generality, or to particular Persons only) is no other thing, than barely a Relaxation, Toleration, or Licensing of a Malum Prohibitum for a time, with respect to Advantage or Necessity. This is the definition given Cooke lib. 11. fol. 88. in the case of Monopolies:

V. That the End of every Law, and of all Laws Civil, and Temporal, is Bonum Publicum, and Salus Populi: And therefore when any Law made, is found at any time to contradict that End, every such Law must at that time be voyd in its self, or there must be a Power somewhere to suspend or dispense with such a Law, for so long time as it appears to contradict that End for which such a Law was made; for res nolunt male Agi: And the Common-Good and Safety of the People must and will be preferred.

Note that this is so sure a Principle, That even Magna Charta it self, the greatest Darling of all our Laws, hath always given way to it. And therefore though our Kings have re­strained themselves by that Law, generally from putting any Impositions upon Merchandises to be Imported or Exported; Yet our Judges have resolved, That for the Common-Good, the King may Controul and Suspend this Law, as in Case of an Imposition put in foraign Parts upon our Merchandises to the prejudice of our Trade, the King to enforce an abatement there, and to make an Equality for the Advancement of our Trade, may put Impositions upon their Merchandises here. So also, Though by Magna Charta it be generally free for every Person, with any Comodity, not expresly prohibited by some particular Law, to go out of England in Order to Trade, yet the King may in the time of War, restrain all Merchants from going out of England, or in the time of Dearth, from Exporting such Comodities (otherwise not prohibited) of which there is a Dearth in England. Coke lib. 12. fol. 33.34.

VI. That Necessitas est Lex temporis, Necessity is it self a Law, whenever it happens, and for the time that it continues, it is Absolute and above all Laws. This Law commands that Authority, which hath the Right of Dispensing with Laws, to exercise that Right, And if That Authority will not do it, This Law called Necessity will it self exercise that Right. Coke lib. 12. fol. 34.

Note when Necessity requires, not only the King, but every Sub­ject may come upon my Land and make Trenches, and Bul­works there, for defence against an Enemy, or pull down the whole Suburbs, or any part of a City for the same end, or pull down or blow up any House or Houses in a Town, to secure the rest from Fire: Notwithstanding all the Laws made for the preserving of Property. Coke lib. 12. fol. 13.

VII. That it is impossible for any Law-makers, who are mere Men and no more, & who have no Pretence to a perpetual Divine Assistance in the making of Laws, to fore-see all particular Mis­chiefs and Inconveniencies, which may happen in particular Cir­cumstances, by or from the making of any Particular Law. Coke lib. 11. fol. 88.

VIII. That for the Reasons before-mention'd, of the Impossi­bility in Law-makers of fore-seeing all Accidents, and Emer­gencies, and for complying with Necessity, and providing for Publick-Good in all Occasions, and the taking Care of the Safety of the People, there must be some Power always in being, to Suspend, or Dispense with such Law, or Laws, as Publick-Good, the Safety of the People, or emergent Necessity require, at any particular Time, or in any particular Circumstances, to be Suspended or Dispensed with.

IX. That the Power of Dispensing with Malum Prohibitum, is of Right, and by our Law, in our Lord the King. Coke. lib. 11. fol. 88. For when a Penal Statute is made for the Publick-Good, the King (as the Head of the Publick-Good, and the Fountain of Justice and Mercy) is by the whole Realm intrusted, and particularly as to the Power of Dispensing with it. Coke lib. 7. fol. 36.

X. That this Trust, and this Power of Dispensing with Penal Laws, are inseparably united unto the Royal Person of the King, That he cannot transfer, give away, or separate the same from himself; consequently it is inherent in his Royal Person, that is, in his Crown. Coke lib. 7. fol. 36. Reported as the Resolution of all the Judges of England.

XI. The King cannot by his Grant, nor yet by Act of Parlia­ment, Bar himself of any thing which is inherent in, and in­seperably annexed unto his Royal Person, for that in so doing he should cease to be King, and consequently Change and Sub­vert the Government, which our Law allows not.

Note this is proved in substance by 2 H. 7. fol. 6. Cited and Agreed in Calvin's Case, Coke lib. 7. fol. 14. The Case was thus: In the Statute 23. H. 6. Cap. 8. it was Enacted under great penalty, That none should serve the King as Sheriff of any one County above one Year, And that if the King, by any Non obstante, should dispense with that Statute, such dispen­sation should be void. Yet it was Adjudged, That notwith­standing that express Clause, and even against it, the King might dispense: And the reason given was, Because the King had a Right, by the Law of Nature, as King, to the Service of his Subjects. And such Right, being inseperably annexed to, and inherent in his Royal Person, that Act could not Bar the King of the Service of his Subjects; Every Subject being bound by his Natural Legeance to serve the King.

XII. That (therefore) when ever the King, to gratifie a Parliament, doth Consent in Parliament to any Law, by which he seems to strip himself of, or depart from, any Prerogative, or Right, which in truth is insperable from him as King; Or when the King in Parliament, or otherwise by any Declaratory Words or Speeches, seems to relinquish such Right; such Con­sent to such Law, is no more than an Agreement on his part, not to use that Right ordinarily; but only in Extraordinary Occasions, when in his Princely Wisdom he shall find it neces­sary, and for Publick Good. But this Bars him not to use this Right again, when he sees just cause so to do, nor can any de­claratory words spoken by the King, or his Assent incerted into an Act of Parliament, Estoppe the King in any Case of this Nature.

This Ground being established, all the difficulties touching Parliaments endeavouring to entrench upon the Crown, and the frequent Charges of Breach of Promises imputed to our Kings, are solved and fall to nothing, nor will there be any more use of that Engine, made use of so unhappily by the late Usurpers, of wounding the King, through the pretence of re­moving Evil Counsellors, when ever the King shall think fit to reassume his Right in Extraordinary emergent Occasions, after having agreed by Act of Parliament, or by any other publick way, not to make use of that Right ordinarily. It being clear upon this Ground, That a Parliament, offering a Bill to the [Page 5]King, which seems to take from him such a Right, hath not in Truth any Design in it to prejudice the Crown. For then a Parliament should do wrong, which the Law allows not to say, nor is such a reassuming the Exercise of such a Right, a Breach of Promise in the King; but a making use of the Condition im­plyed in his Agreement, as to such a particular Case, and in such present Circumstances: Otherwise the King should be said to do wrong, which our Law also forbids us to say. And all those Judgements and Resolutions of our Judges, which confirm it to us, That the King hath such Rights, and which have allowed the Exercise of such Rights (notwithstanding Acts of Parliament) would be infringed, and become Erronious, and consequently the whole Frame of our Laws unsettled.

These Rules before layd, or some other of the like nature, which those who are learned in our Laws agree upon among themselves, have been of so great force, that in all Ages, those who have been otherwise the greatest Opposers of the Prero­gatives of the Crown, have nevertheless always Agreed, That the King hath a Power inherent in him, and inseperable from his Royal Person, to dispense with Penal Laws, as to particular Persons. But several do deny, That His Majesty hath any Power in himself alone, to dispense in general, with a Penal Law; or to suspend in general the Execution of such a Law: Though others do very strongly Affirm His Majesty to have this Power, and do conceive, that upon the Grounds before laid, all Objections which are commonly urged against this Power, are clearly Answer'd and prevented.

Those who maintain the Affirmative in this Point, do at all times declare, That their Affirmative is not intended of a General Power, in the King, to suspend all Penal Laws in general, at his pleasure, to the prejudice of the Publick, and without just Cause: Such a Power being against the Grounds before laid, and never claimed by any King of England. But that which they affirm is of a Right bounded within the true, just, and agreed Definition of a Dispensation, mention'd as the fourth Ground before asserted. And therefore when they discourse the point, they state and divide the Difficulty into these follow­ing Quuestions. (viz.)

Quest. I. Whether the Legislative Power may not possibly make such a Law, as in respect of Time, and other Circumstances, impos­sible [Page 6]to be foreseen, may prove inconvenient to the whole Kingdom, or a great part of it? And if the Affirmative in this Question be True, which they hold, Then

Quest. II. Whether in case of such a Law made, is there not some Power, and is it not absolutely necessary there should be some Power, always Visible, and in Being, to dispence with, and to suspend the General Execution of such a Law, Necessity and Pub­lick, or General Good requiring it? In this they also hold the Affirmative, which if it be True, Then

Quest. III. Whether this Power be in the King, or any where else, And where else? Or whether it be in the King, with some other, And with whom? And in this they hold That it is in the King solely.

For Proof of their Affirmative to the first Question, they say

• I. It is proved by the Seventh Ground before layd.
• II. By what is observed upon the Fifth Ground, even Magna Charta rigorously insisted on, according to the Letter of it, would be in­convenient, and against Publick Good.
• III. There are many Ancient Penal Laws, which though never Repealed, yet are not put in Execution. Because though Necessary when they were first made, yet now Obsolete in respect of Time, and other Circumstances, not foreseen, and impossible to be foreseen, when the said Laws were made.
• IV. It is ordinary for the Legisla­tive Power in all Ages, to make several Penal Laws meerly temporary, and experimentally, to the end that Experience may shew whether they may conveniently be continued or not.
• V. The late Acts of Parliaments made, for Encouragement of Navigation, and touching Cart-wheels, being Penal Laws, made by this present Parliament, does clearly prove this point. The first had Inconveniencies not foreseen, and only appearing when we made War; The other had such Inconveniencies not fore­seen by the Law-makers; that had it been put in Execution, all our Inland Trade had been destroyed.

For Proof of their Affirmative to the Second Question, they say

• I. It is proved by the Fifth, Sixth, and Eighth Grounds be­fore layd.
• II. To deny this, would be to Charge our Laws [Page 7]with the highest defect imaginable, for to grant (as they do) That the Law hath provided a Fountain of Mercy always visible and in being, to take care of private and particular Persons, and to dispense with Penal Laws, as to such, when Necessity requires, and to deny that the Law hath provided any Fountain of Mercy always visible, and in Being, to take Care of the Publick, and to provide for the Safety of the People when Ne­cessity requires, would be to charge our Law with a greater defect than ever any yet charged it with.
• III. That if no such Power had been, all Navigation as to Trade, must have totally, or at least for a great part have ceased during this present War for want of Mariners, and all our Inland-Trade must have ceased from the time of the making of the Act touching Cart-Wheels for want of Carriages; and De Witts designs (for ought we know) might have been effectual to have engaged us in a New War at home, and to have Provoked our Non-Conformists into a Rebellion (in which they would most cer­tainly have been assisted with all necessaries from Holland) for the rescuing themselves from the Inconveniencies which they pretend they lye under, from the Penal Laws made against them, if there had not been a Visible Power in Being, to avoid the Danger then threatning us (and not foreseen by the Law­makers) by suspending the Execution of those Laws.

For Proof of their Affirmative to the Third Question, and what they hold therein, they say

• I. It is proved by the Ninth, Tenth, and Eleventh Grounds before layd.
• II. There is no other Power always visible, and in being, which doth or can pretend with any colour of Reason, to have this Right, besides the King alone.
• III. To place this Power in any other, without the King, would be to make that other, King. And to place it any where, then in the King alone, so as to make some others to be sharers in this Power, were to make those others, to be sharers in the Highest Act of Soveraignty, and consequently sharers in the Crown; which would be wholly to change our Government, and to alter our Laws, and consequently to subvert all our Liberties and Pro­perties, which cannot be safe, if any Principles be admitted in alteration of our Laws, and Government. And it is for this [Page 8]Reason, that the King cannot commit the power of his Mercy, concerning any Penal Statute to his Subjects, Coke lib. 7. fol. 37.
• IV. Our Kings have always used this Power, and our Judges approved the Exercise thereof to be agreeable with our Laws, as is proved in the Grounds before layd. And though it be true, that some Ancient Laws seem suspended by a dis-usance, and a seeming tacite Consent of the whole Kingdom, King, Judges, and People, yet that was in truth the suspension of the King alone. For those Laws were (when once made) the King's Laws, and the King was the only Person trusted with them, he might have put them in Execution, and com­manded his Judges to see them put in Execution, if he had plea­sed, and his Judges would not have taken upon them to say, That they the Judges, or, That the People, had thought fit to suspend them by common consent, and therefore they, stood Suspended.

In short, those who do maintain these Affirmatives, in all these Questions, and insist upon the Grounds, and Rules before layd, do, for farther clearing of the matters in debate, humbly offer the following Cases to Consideration, as concieving the Solutions of them may settle the Point.

I. Suppose a Distress taken upon that Branch of the Statute of 14. Car. 2. cap. 6. which relates to the breadth of the Weels of Carts, and Waggons, and the Execution of which Branch was suspended by His Majesties Proclamation, Would the Judges justifie this Distress or not? If they did, in pursuance of the Statute, and dis-ailowance of the Power of Suspension, the Consequences would be, That they would hereby destroy the greatest part of In-Land-Trade of the Kingdom. If they did not allow the Distress; but agree the Act to be lawfully Suspended by the King's Proclamation, issued forth in a Case where so great a Ne­cessity required, for the Publick Good: Then all the three Affirmatives upon the aforesaid Questions are settled, with this Addition; That the King may dispense with a Malum Prohibitum, though it be (as it is in the Case put) adjudged by Act of Parliament a Common Nusance; And may dispense with a Penal Law, though the Forfeitures (as they are in the Case put) be not given to the King, but to others, as in this Case, to the Surveyors [Page 9]of the High-Ways, the Poor, and the Prosecutor. But if the Judges in this Case, as it is here put, to avoid the difficulty, should refuse to allow the distress upon some other Reason, as rather taking upon themselves to ad­judge the Act of Parliament, as to this particular Branch, to be void, then to allow the King to have Power to Dispense with what an Act of Parliament adjudgeth to be a Common Nusance; though the whole Kingdom be­lieves that his Majesties said Proclamation, was the sole Cause, why there was never any Execution of that Law: And that no man was ever prosecuted upon that Branch, because all men generally admitted that the King had dispensed with it, and had a power so to do; And consequently, That the Judges never had an Oppor­tunity to Repeal it, by their Judgment: yet if the Judges should in this Case proceed this latter way, or any other way, rather then to Affirm the King's Right (for Reasons best known to themselves) there would be then no more gained by this Case, then, A Law may be made by the Legislative Power, which may be very inconvenient to the whole Kingdom, And that in such Case, there must necessa­rily be a Power somewhere, either to suspend its Execution, or to Repeal it totally by adjudging it to be Void.

And then the next Case proceeds thus:

II. Suppose a Law made under the penalty of 100 l. to the Prosecutor to his own Use, That none shall serve His Majesty, either in his Navies at Sea, or in his Armies at Land, or bear Arms in the Militia in any County, except he first take the Oaths of Supremacy, and Obedience; And take the Sacrament of the Lord's Supper according to the Form used in the Church of England: And Abjure Tran­substantiation. This Law being made; Suppose France and Holland should Unite their Forces, and make a pre­sent War upon His Majesty: And (the more to distract us and raise Divisions amongst us) should publish their Placaet, and promise a general Toleration, to all in England, in point of Religion, and the Enjoyment of their Ancient Laws; if the People of England will sit still and not [Page 10]take up Arms; many in England who are willing to Assist the King in this Exigency, dare not bear Arms because they cannot comply with what the aforesaid Law requires. Many who can comply with this Law, refuse to comply, and consequently pretend they cannot comply, and there­fore that they dare not bear Arms. But their true Rea­son is, That they know they can have no Toleration in the business of Religion, secured unto them by the King; And they hope the Enemy, if they overcome, will for their own Interest (at least) make good their Promise. The rest of the Nation are not able to Defend the King­dom. Now it is demanded of the Judges: May the King in this Exigency, Dispense with this Law, and suspend all the Penal Laws in cases of Religion: And hath the King a Right to do this? If he cannot, Then clearly the Crown and Kingdom must be Lost, because our Law is in so great a Point defective. If the King hath Right to do this, tho' no part of the Penalty be by this Law to the King, but all to the Informer; Then, put the same Case yet farther, And suppose the Malum Prohibitum in this Law, were by this Law adjudged and declared to be a common Nusance: Nay suppose it were adjudged to be Felony or High Trea­son. Hath the King in such Case, a Right to Dispense, and is not the King the sole Judge in this Case of the Necessity, and of the Publick Good? Or is the King to Call a Parlia­ment of necessity to judge in the Point, and so hazard the Ruin of the whole in expecting the meeting of a Parliament? Or must he Consult the Judges, and be bound by their Opinions in so great an Affair of State, Necessity, and the Publick-Safety? It is conceived the Resolution of this Case will put an end to the whole Doubt.

Against these Affirmatives, several Objections are usually made, which are Answer'd thus:

Object. I. That the King by his Coronation Oath, and by several Promises, hath pleased to bind himself to maintain all the Laws. And since all men agree, That Almighty God can bind himself by his Promises, it is unreasonable to say the King cannot bind himself.

Answ. I. This Objection if it proves any thing, proves too much, for it is as strong to take away the King's Power of Par­doning, or of Dispensing with a Penal Law, as to a particular person, as to take away his Power of Dispensing in general. But the Objectors Grant, That the King hath the former Power inherent in him, notwithstanding these Promises, and Oath, and that no Construction shall be made of them, to bar him from Pardoning, or from Dispensing with particular Persons; there­fore no Construction shall be made of them to Bar him from Dispensing generally. Secondly, There is no Construction to be made of any Promise of God, to bind his Divine Majesty to cease to be Good and Merciful; Because those Attributes are of his Essence, and such a Promise, would amount to a Promise to cease to be God, which God cannot cease to be, and there­fore cannot be intended to bind himself to cease to be. So neither shall any Construction be made of any Oath, or Pro­mise of the King, to bind the King to cease to have the Power of Mercy, because it is of the Essence of the King: And it would amount to a binding himself to cease to be King, which he cannot bind himself to cease to be. Thirdly, This Right of Dispensation is a Law in its self, and so necessary and funda­mental a Law, in order to the Publick Good, That without it, and without the Exercise of it, when the Common Good requires it to be Exercised; The Kingdom cannot be, and the King's Prerogative is Law. Therefore the King's Oath and Promises to maintain the Laws, bind him to maintain and exercise this Right. And to put such a Construction upon the said Oath and Promises, as should bind the King not to use this Right, were to bind the King to Break and to Violate the Laws, and to neglect the Safety of the Kingdom. Nay, for the King not to exercise this Right, would be to Violate his Oath and Pro­mises, and to break the Trust reposed in him, by the whole Realm, when they make a Law and entrust him with it, as the Fountain of Mercy, and Head of the Publick Good: And to frustrate the Chief End of all our Laws. Fourthly, The Ob­jection is therefore grounded upon a mistake of the Question; For no man will or dares say, That the King is bound to en­force the Execution of a Penal Law, to the prejudice of the whole Kingdom, or of a very notable considerable part of it.

Object. II. That all the Judges, and all who are in the Commission of the Peace, are Sworn to put the Laws in Execution; But if the King shall be said to have this Power, he shall have it in his Power to make all these Perjur'd.

Answ. I. This Objection, as the former, makes as much against the King's Power of Dispensing as to particular persons, as a­gainst the Power now affirmed, and so it fights against the Ob­jectors allowed Opinion, and proves nothing. Secondly, The Right, and Prerogative in dispute is a Law, so they are bound by their Oaths to submit to it, and maintain it. Thirdly, A Dispen­sation in our Case is in the nature of a Temporary Repeal of a Law, for it is a laying it to Sleep for a time, in a Legal way; consequently there is no more Obligation from the Oath ob­jected, to put a Law in Execution, during the Time that the Execution thereof is by a Dispensation Legally Suspended, then there is to put a Law in Execution after it is Repealed. And to do either, would be against the Oath objected, because it would be to Act against Law. And if this be denyed, it were worthy Enquiry, Why the Judges, who are bound by Oath, as is objected; and who sometimes affirm themselves obliged by Oath, to give the Laws in Charge in their Circuits: do never­theless forbear to give in Charge, or put in Execution, several Obsolete and Antiquated Laws, which have never been actually Repealed by the Legislative Power; but only Suspended by the Act, or by Allowance of our Kings (who might have en­forced the Execution of them if they had pleased) and by the Consent, and tacite Agreement of our Judges, and whole King­dom, taken to be suspended.

Object. III. If this Power be allowed to be in the King, he may by Virtue of it Suspend all our Laws, and even Magna Charta it self, and then farewell all our Liberties and Properties.

Answ. If this Objection be not grounded upon a Mistake of the Question, it signifies nothing, the Right asserted is a Righr of Dispensation, Publick Necessity, and Publick Good requiring it. It is proved by the Fifth Ground before laid, and the In­stances urged, to prove that Ground, That Magna Charta hath been, and may be Suspended by this Right, when Publick Good [Page 13]requires such Suspension. And what matter is it, how many Laws are Suspended at one time, for Publick-Good, which is the End of all our Laws? Here is no other Right pretended to be maintained in the present Dispute; But what is for Publick-Good, and the Conservation of our Liberties and Properties.

Object. IV. The Allowance of this Power to the King, may be Dangerous in its Consequence. For in Effect it makes him sole Judge in the Case. And then be may use this Power by mistake, to the prejudice of the Publick.

Answ. If there be any Danger in making the King Judge in this Case, And that this Danger be an Error, it is not the fault of those who maintain this Right: But of the Law which declares this Right to be in the King, and of the whole Realm which entrusts the Power of Mercy in the King. The same Law, and the same Realm entrusts the King with the Sword of Justice, with the Militia, and with the Power of Peace and War; yet the Law was never blamed in these points; nor ought the Kingdom to be charged with Folly, or Imprudence, for these Trusts. Certain it is, these Powers, and these Trusts must of necessity be in some Person or Persons, alwaies Visible, and alwaies in Being. If it be in One Single Person, he is & must be King; If in more, then we must change our Government and Laws: And how safe that will be for our Liberties and Properties, is not hard to judge. The same Law that Entrusts these Powers in the King, knowing him to be a Man, Entrusts the Legislative Power in the Parliament, which is composed of Men, and the whole Realm Consents to these Trusts. This is the Constitu­tion of our Government. And as our Law Affirms, that this Trust as to the Legislative Power, will not be abused, and therefore says possitively, That in the Exercise of the Legislative Power, the Parliament can do no wrong. The Law implying the Consent of the whole Realm to be included in what they do? and consequently, That none shall be said to be wronged in what they Consent to. So the Law, and the whole Realm, consenting to Repose these Trusts in the King, the Law affirms, and the whole Realm believes, That these Trusts will not be abused; and therefore the Law says, That in the Exercise of these Trusts, the King can do no wrong: The Law implying, [Page 14]the Consent of the whole Realm to be included in the reposing of these Trusts in the King, and consequently to be included in what the King does in the Exercise and Execution of these Trusts; and consequently, that none shall be said to be wrong'd in what they Consent unto. And in Truth our Law says, the King makes the Laws, and is the sole Judge even in Parliament, and the Lords and Commons only Assent. And the King is solely intrusted with the Power of Judging, and that he hath no Judge over him. 22. Ed. 3. fol. 3.

Object. V. If this Right may be allowed, the King may Licence a Common Nusance, or Felony, or High-Treason.

Answ. The Question is only touching the Licensing of a thing which in its own nature is indifferent, and if not prohibited by a Law, might be honestly done, and becomes an Offence only by being prohibited, and because it is prohibited by a Law made for Common-Good. And this being the true state of the Case, the Objection is fully granted. The King may License the doing of a thing, Common-Good, and Publick Advantage or Necessity, requiring the Licensing of the same, (regard be­ing had, to particular circumstances of Time, and other Reasons of State and concernments) which by Law, was made an Of­fence, or Common-Nusance, or Felony, or High-Treason. And this is so far from being a prejudice or mischief, That it would be an Inconveniency not to have such a Power some where. This is proved by the Fifth and Sixth Grounds before layd. And for farther proof, there is one instance amongst many, in the Books. 11. H. 7. fol. 11. Bro. tit. licences. 24. Where it is Resolved, That whereas the Coyning of Money was an indifferent thing in it self, And might have been practised by every man, that pleased, untill it was made an Offence by Law: (which makes it High-Treason) The King may Dispense with that Law, and licence the Coyning of Money. This is an Instance of the high­est nature, (viz.) of a Malum Prohibitum made Treason. And therefore other Instances are needless.

Object. 6. If this Right be allowed, where the Penalty for doing a Malum Prohibitum is given to the Poor, or the Prosecu­tor, and not to the King, the King shall have power to Deprive the Subject of what the Law gives him, which will be a Wrong; and the King can do no Wrong.

Answ. This Objection, as the former, is grounded upon a mistake of the Question, which is only of Dispensing Pro Bono Publico, in Cases of Common-Good, and Publick Advantage, or Necessity, so that what at the time of making the Law, which made it an Offence, was fit for the Common-Good to be prohibi­ted, and made an Offence, comes at the Time, and in the Cir­cumstances wherein it is Dispensed with, to be a Common-Good; and consequently necessary to be licensed. So that admitting it were a mischief to the Prosecutor, or to the Poor of some Parish, to be barred of the Penalty given by the Law; yet to the Publick it would be an Inconveniency, not to have that Licensed, which Common-Good requires to have Licensed. And the known Rule of Law requires, That a private Mischief should rather be suffer'd, then a Common Inconvenience: Consequently by this Right exercised, the King does no Wrong. For to pre­fer Publick-Benefit, before the private Gain of Informers, who are the Pest of the Kingdom, or before the Poor of a Parish, who must otherwise be kept by the Parish, is no Wrong. Besides the Objectors grant, That the King, notwithstanding this Ob­jection, may licence particular persons, And they must grant, That before an Action commenced, the King, after an Offence committed, may deprive an Informer, of what the Law gives, by a particular Pardon. Both these Rules are lay'd in the Books of 2. R. 3. fol. 11.12. & 1. H. 7. fol. 3. & 37. H. 6. fol. 4. & 5. And if it be no wrong to Pardon the Offence committed, altho' there be no Pretence of Common-Good, upon which the Pardon is grounded, it is certainly no wrong to Dispence for Common-Good.

Object. VII. That there are no express Judgments found in our Law-Books to warrant this Right in the King: And it is to be presumed, That it being a Right often Claimed by our Kings, and Denyed by the Subjects, The Judges, who by their Offices are the King's Council Learned, would not have left so material a Point unsettled.

Answ. I. Supposing this Objection were true, That there were no Express Judgments found in this Case, yet the Con­sequence doth no more follow, That therefore the King hath no such Right; then the contrary consequence would follow, Therefore the King hath such Right. For though it be true, That the Judges in all Ages were, and are the King's Council Learned, And the Kings of England have always Claimed and Exercised this Right, undoubtedly they would not have done this, if their Judges had plainly told them, That it was against Law; or that the thing had not been clear, in its own nature. And if there were no Judgments in the Case mention'd in our Law-Books, when the thing hath been so constantly practised, it rather seems clear, That it was so undoubtedly the King's Right, That no Person in any Age ever thought it a Point fit to contest upon, or to put it to the Judgment of a Court. There is no dispute but that there have been many Parliaments in former times, who have attempted to tear many Prerogatives from the Crown, taking advantage of the Wants or Weakness of our Kings: And it is as certain, that the Generality of our Judges in all Ages, have more enclined to lessen the King's Prerogative, then to deprive the People of their Liberties; either as thinking their own Interest concerned therein, as Sub­jects, or as inclining rather to an Aristocracy, then to a Monarchy; or rather (and which is the most probable) upon the account of fear of being question'd by Parliaments, knowing well, that whenever they did pinch hard upon the Prerogative Royal, the Kings were generally Merciful in their own natures, or might be prevailed upon by their Courtiers, to pardon and pass by it, and that it was never to be dispaired but that a way might be found to pacifie the displeasure of the Prince, who was but one Man, and who had no way to punish, but only by displacing, which was seldome done for an Error of a Man's Judgment. [Page 17]But that whenever they happened to fall under the displeasure of a Parliament, upon any jealousie of advancing the King's Prerogative too high; the Excuses of Human Frailty, and of Erring, though a real and involuntary mistake, did as seldome procure their Pardon, as a like pretence would preserve a Per­son from the punishment of the Law, who should stand Indicted before themselves. For Courts are not single persons, nor is it reasonable they should be, their Constitutions being to take care that Justice should be Executed In Terrorem, without Favour, or Affection; knowing that Mercy floweth by the Constitution of our Laws, from another Fountain. This is said, supposing the Objection were True. But, Secondly, The Objection is be­fore proved to be most untrue by the instances put of the Judgments given, touching the Dispensing with Magna Charta. Coke, lib. 12. fol. 33.34. The Judgment given in 2 H. 7. fol. 6. agreed in Calvin's Case. Coke. lib. 7. fol. 14. and the Case of Licensing Coyning. 11. H. 7. fol. 11.

Object. VIII. That several Privy Counsellors and Great Men in former Times, and particularly Cardinal Wolsey, and the late Earl of Bristol, have been impeached by the Concurrence of our most Learned Judges, for Advising the Kings of this Realm to Dispense with Penal Laws.

Answ. I. It is no Dishonour to Parliaments, to say, that all Impeachments even by Parliaments, are not always just, and well-grounded, though judged to be so at the time when they are framed; an instance may be given in the deplorable Case of the Late Noble Earl of Strafford, Impeached and Attainted unhappily by a Parliament, and that Attainder most happily and justly Re­peal'd by this present Parliament. Therefore if it could be proved, That any Minister of State had at any time been impeached by a Parliament, for Advising any of our Kings to Exercise the Right now asserted, it would no way prove, That our Kings had no such Right by our Laws. Secondly, But there can be no President shown, of any Impeachment against any one Per­son in any Age, by any Parliament, or any other Just and Legal Authority, for Advising any of our Kings to Dispense with any one or more of our Penal Laws for the Publick Good, or in any Case where Publick Advantage or Necessity required such Dispensation. Thirdly, As to the Cases urged in the [Page 18]Objection, they are not to the Point in Question; The first of Cardinal Wolsey was as to Licenses, That he granted Licenses under the Great Seal (being Chancellor) for Exporting Goods prohibited by Law, for Advantage to himself and his Servants, without the King's Warrunt or Knowledge. Coke, Jurisdiction of Courts, Tit. Chancery. foll. 90. This in truth was a Grievous Crime, to grant Licenses under the Great Seal for Dispensing with Penal Laws, without the King's Warrant or Knowledge; But this very Charge implyes, That this had been no Offence if he had been Authorized, by the King's Warrant to Seal such Licenses: And every Merchant knows, That nothing is more in practice, then for the King, in special Cases, to License the Exporting of Goods, prohibited by particular Laws, to be or­dinarily Exported.

The Case of the late Earl of Bristol is as far from the Point as the former, The Case was thus: That Lord had been im­ployed by King James as his Majesties Ambassador in Spain, to Treat touching the Marriage with the then Infanta; the King of Spain being Zealous for the Religion of the Church of Rome, insisted in the said Treaty, to procure some favours for the English Roman-Catholicks: The first Proposals, as to the matter of Religion, related no farther then to a Freedom of Religion, for the Infanta and her Servants, the Children of the Marriage, and her Ecclesiasticks and Religious. This could not be without the King's particular Licenses: This the King assented to ( Rushworth's Historical Collections. fol. 4.) The King agree­ing, thus far, and the Treaty being prolongued by many Arti­ficial delays, The King of Spain urged farther, in favour of the English Roman-Catholicks in general: But the form, and way to be left, to his Majesties Wisdom and Clemency, that the Mer­cy mmight be Acknowledged to come from his Majesty. To this the said King James, and his Late Majesty, both Signed. ( Rushworth fol. 287.) And after all this, King James for far­ther Satisfaction in this matter, did by the Lord Conway his Majesties Secretary of State, by a particular Declaration in wri­ting, Signed by the said Lord Conway, and Dated Aug. 7. 1623. Declare and Engage, That his said Majesty would cause a present Suspension under his Majesties Great Seal, of all those Penal Laws, Charges, and Forfeitures, whereunto the Roman-Catholick Sub­jects of his Majesty had thentofore been subject; and in the same Grant, and under the same Seal, to give a Dispensation and Tolera­tion [Page 19]to all the Roman-Catholicks, His Majesties Subjects, as well Priests, as Temporal Persons, &c. ( Rushworth, fol. 288.289.) The Marriage not taking effect, and Animosities and Feuds happening between the then Duke of Buckingham, and the said Earl of Bristol: the said Earl after that King's Death, in Parlia­ment impeached, and wrought with the House of Commons to Impeach the said Duke. And the said Duke prevailed with his then Majesty first to Exhibite an Impeachment against the said Earl in the same Parliament, thereby intending to make the said Earl either to retract, or to forbear prosecution of his Charge against the said Duke; or to invalidate his Testimony. And true it is, that the Fifth Article of the Charge against the said Earl was, That he Counsell'd, and perswaded King James to Grant, and to allow unto the Papists, free Toleration, and Silencing of all the Laws made, and standing in force against them. The Charge is not, That he Counsell'd the King to Grant a Publick and Free Toleration; But to Dispense with the Laws For Toleration, and Dispensation, import no more than a permission to Exercise their Religion in their private Houses, and to Suspend the Exe­cution of the Laws there mention'd, for a Time. All which the said King had power (in pursuance of a Treaty, and Articles, between Crowns, upon the breach or performance of which, Peace or War, Common-Good, or Publick-Prejudice depend) to do. But to Counsel a free Toleration, imports an Allowance of Pub­lick Worship, which as Affairs then stood here, could not con­sist with Publick Peace: The Temper of this Nation not endu­ring it, nor could the Papists have been secured from the Rage of the People in the Enjoyment of it. And the Silencing of the Laws might import a Total Repeal of them, which the King did not Claim a Right to do of himself. So that this comes not to our Poynt in Question: This Lord was not Impeached by Par­liament, nor by any appearing Concurrence of Judges, nor for Advising the King to Dispense with any Penal Law for Publick-Good, or where Necessity required. But there is yet something more in this Case of the Earl of Bristol. The whole Story is told at large by Mr. Rushworth in the Book before cited: And it had this farther in it, (viz.) That when the Impeachment was brought into the Lords House, the Earl of Bristol put in his Answer to it: and as to this particular Article, he first denyed positively, That he had Counsell'd any thing in the matter charged. And then he declared fully what was done, and set forth at large the matters [Page 20]of Fact before-mention'd, as well as to what was Signed by King James, and his Late Majesty King Charles the First, as also the Declaration Signed by the Lord Conway by King James his Order. So that in this Case there are these things worthy observation to the present purpose.

• First, That it is not probable but that the said Duke of Buckingham, being the then Greatest Minister of State and Favourit to King James, did Advise in all things which then passed in that Affair, and particularly in the Decla­ration Signed by the Lord Conway: But touching the Lord Conway's Signing a Declaration, there can be no question.
• Se­condly, That the said Earl wanted neither Wit, Will, nor Cou­rage to Charge the said Duke, as far, and with Crimes as distastful as he could find any, wherewith to Charge. And that he was not fond of, nor any ways obliged to spare the Person of the Lord Conway, who was the Duke's Friend, and must have been the Duke's most material Wittness, to save him in Case the Charge against the Duke had been prosecuted.
• Thirdly, That the Parliament then sitting, was as diligent in Enquiring into Misdemeanors, as much displeased with the Duke of Buckingham, as little tender of the Lord Conway, as Secretary of State; and much inclined to Enquire in relation to the too much Advancing and Stretching the King's Prerogative to the prejudice of the Subject, and against the known Laws; as (peradventure) any Parliament that ever Sett in England: yet neither did Parliament, nor this Earl of Bristol, Charge any thing against this Duke, or Exhibite any Impeachment against the said Lord Conway, for Advising to Dispense with Penal Laws; nor did this Parliament any way appear to prosecute the said Earl of Bristol upon this Impeachment Exhibited against him, though he was thereby particularly Charged for thus Ad­vising.

This seems a very probable Argument (at least) to prove that both the Earl of Bristol, and this Parliament, did Believe the King to have this Right which is here Asserted.

Object. IX. That King James when he Treated in Relation to the Match with Spain, being demanded to Suspend the Execution of the Penal Laws, then in force against the Papists; was pleased to Answer: That it was not in his Power so to do, without a Parliament.

Answ. This whole Objection is most certainly a mistake, For it is evidently proved before, what Opinion King James had, and how well he was satisfied with, and understood his Right in the point of Dispensations: And how Wise and Knowing a Prince he was, all Man-kind is satisfied. Therefore if any thing were demanded of that King, in that Treaty, to which his Ma­jesty gave any such Answer, as is here Objected; The demand did certainly Extend so far, as to require a Total Silencing, and Repealing of those Laws. In which Case his Majesties Answer was most certainly True. But to suppose that King to have given this Answer, where the Question or Demand was only touching a Suspension of Laws, and then afterwards, to have offer'd, and promised a Suspension of the same Laws under his Great Seal, would be with the highest Folly, Self-contradiction, and want of Sincerity imaginable.

Object. X. That his now Majesty, in a Speech heretofore made by him in this present Parliament, did by implication agree that he had not, by wishing that he had, such Power, as is now in­sisted on. And when afterwards his Majesty by Advice, took upon him to Exercise this Power, he did again upon further Ad­vice wave the same.

Answ: I. This as well as the other Objections in the Case of King James, if they were granted as far as the Objections can be put, Nay if the Cases were, That King James had, and his now Majesty also, past Acts of Parliament, express in the point to bar themselves and the Crown of this Right, the same must be only intended, as to the ordinary Exercise of that Right; But not of the Extraordinary Exercise thereof, when the Pub­lick Good requires the same should be Exercised, which is proved by the Grounds before layd. Secondly, And that his [Page 22]Majesties proceedings are to be thus intended, and not other­wise, is proved by the continual Exercise of that Power in the Cases of Suspensions of Penal Laws, suspended by the King's sole Power, and the Suspensions never Question'd, never Com­plain'd of, but still submitted unto, and admitted as Legal; namely, those touching Navigation, touching Importation of French-Wines, and touching The Breadth of Cart-Wheels. If the King had been really perswaded, into a real Belief by the mista­ken Advice of the Earl of Clarendon (whose Opinion in Law was never esteemed of Venerable Authority) at the time of his Speaking, which is Objected. It is clear by his Majesties Pra­ctice since, that he hath found cause to alter that Belief; And if his Majesty for Reasons best known to his Royal Self, hath in one particular Case, waved the Exercise of his said Power, yet his continual Exercise of the same Right in the other last men­tion'd Cases, makes it evident, that it is only a wavior in this single Case in particular Circumstances, and upon such Advice, as that he still nevertheless thinks it most reasonable and legal to continue the Dispensations, by which his Majesty hath Sus­pended those other Laws. And it were Injurious to the Care and Wisdome of his Majesties Great Counsel, and to the pro­vidence and foresight of his Counsel Learned the Judges, to conceive, that they do not take the Execution of those other Laws to stand well Suspended by his Majesties respective Pro­clamations, by which they stand Suspended, whilst yet they have not complained, of those Suspensions; nor prepared or ad­vised the preparing of any Bills to be offered to his Majesty for the Repealing or Suspending of those Laws by Act of Par­liament.

Object. XI. That all our present Judges, have expresly declared their unanimous Opinion in the very point, by giving in Charge the Laws intended to be Suspended by his Majesties late Decla­ration (which hath been the Occasion of the Publick Debates touching this matter) albeit the said Declaration did expresly affirm the said Suspension to be for Publick-Good.

Answ. The Proceedings of our Reverend Judges are always Regulated by prudent, but strict Rules, and those Rules re­late as well to matter of Form, as to matter of Substance. This [Page 23]our Law requires, and by their Oaths they are bound up to proceed according to Law: which is the true reason why many Judgments given in our several Courts are afterwards reversed, in Cases otherwise very honest and just: Learned Men have been often heard to wish, that Matters of Form might be less Considerable in our Laws; And that our Judges of every Court of Law had also a Power to Consider and Judge also of Equity in all Cases coming before them. It seeming very harsh to such as do not throughly grasp the Reasons of things, to hear it said that an honest just Cause was lost, for matter of Form, or because of the Errror or Ignorance of a Clerk; And that Law in such a Case is one way, and Conscience and Equity another way. And these things seem often times in particular Cases to be very mischievous. But when it shall be consider'd, That this way of being tyed close, even by an Oath, to strict Rules, is that which preserves us from Arbitrary Judgments, and keeps all things Certain, and that many particular Mischiefs are rather to be tolerated, then the great and common Inconveni­encies endured, of Trusting any Judges whatsoever, with an Arbitrary Power. And that for the Relieving even of particular Persons against such mischiefs as may happen from the Close Observance of these strict Rules, our Government hath appointed Courts of Equity; No one can reasonably Complain that they are hurt or Injured. Now it is conceived, that the reason of this way of proceeding in our Judges in the Poynt objected, was not that they judged the King to have no Power to Di­spence with Penal Laws, for the Publick-Good, and when Ne­cessity and Reason of State required; but they were tyed up by their Oaths, as is before-mention'd: And consequently were bound not only to consider the substantial part, whether by the King's sole Power, the Execution of Penal Laws upon Grounds warranted by Law, might be Suspended; But they were also to Consider the Form and Manner of the King's Executing of this Power. And if the same were not done in such manner as the Rules of Law required, they could not legally be so bound by it as to be Excused from giving those Statutes in Charge, though they might otherwise have a Liberty so far to comply with the Publick-Good, and with what the King (whom the Law hath constituted Judge of what is so) judged to be ne­cessary for the Publick-Good, as not rigorously to compell the Ex­ecution, of what they were nevertheless bound by their Oaths, [Page 24]to give in Charge. And this is conceived to be the true State of the present Case urged in the Objection, which rightly un­derstood makes nothing against the King's Right here affirmed, and justifies the Prudence and High Integrity of the Lords the Judges. The King found it absolutely necessary, for Common-Good, being to Engage in a most necessary War, to suspend the Execution of several Penal Laws: The Resolution taken in the Case was upon serious Debates, had with his Ministers of State, it being purely an Affair of State, consequently his Majesties Counsel of Lawyers were not consulted in the Poynt, it not being within their Cognizance to Advise in Affairs of State, such as are the making of Peace or War, &c. Nor do they think themselves disparaged in being omitted out of Consulta­tions of this nature. The King upon this Advice resolves upon the thing as necessary; and finding in common practice, That it was not to be doubted but that he had a Power inherent in him to do this: His Majesty having formerly Exercised this Right, in the aforesaid Cases of Suspending the Execution of several Laws made in Relation to Cart-Wheels, French-Wines, &c. In all which his Counsel of Lawyers had prepared and drawn up the Instruments, by which the same were Suspended, and no Complaint or Exception was ever taken against the same, by any of the Judges, or by the Parliament. The form of doing this was by his Majesty left to his Ministers of State, because it being matter of State, it lay most properly within their Sphere to express the Reasons which were therein to be set forth for the doing what was to be done. These States-men being solely used to consider matter of Substance, and being mere Strangers to matters of Form, and consequently not reflecting upon mat­ter of Form as necessary; drew up the Instrument by which this Suspension was to be Executed by the way of a Declara­tion, and thought the passing of that Declaration in Council by his Majesty, and the Publishing the same in Print, being in their Judgments the sole matter of substance, was all that was necessary in this Affair. But it happened in this Case that for want of Advising with his Majesties Attorney General, by whom those Instruments were prepared, which suspend the Execution of those other Laws, there was something amiss in this; So that it came not so Legally and in such Form to the Judges, as those others did; consequently they could not by reason of their Oaths, omit to give in Charge the Laws inten­ded [Page 25]to be suspended by this Declaration. Yet they took care (like most prudent Persons, and most Loyal and Dutiful Sub­jects) not to press the rigorous Execution of any one of those Laws, because the King had declared his Royal Judgment, That the Execution of them was to the prejudice of Common-Good. Nor yet did they proceed to declare any Reason why they con­tinued to give the same in Charge, nor to declare any Nega­tive Opinon, that the same were not Suspended: But left all men to conjecture from their not pressing the Execution of any of those Laws, that the same were in Truth sufficiently Suspen­ded in substance. And yet that there was some Defect in the legal Form of that Declaration, so that they were in their Opi­nions not excused from giving the said Statutes in Charge: And this was rightly taken by the whole Kingdom, none of those Laws were put in Execution, but Publick Good was com­plyed with. And clear it is, the whole Kingdom was thereby in the greatest Peace and Quiet, that it had enjoyed in the memory of man: All the Designs and Contrivances of the Dutch for putting our Nonconformists into Disorders, and break­ing our Publick-Peace, were prevented, to their great Astonish­ment and Confusion; And our Reverend Judges by this their great Wisdom, preserved the King's Honor, conformed unto, and complyed with his Royal Intention, justified his Right in the substantial part of it; and preserved themselves from all possibility of being blamed either by his Majesty, or by the Parliament. And by this are easily reconciled the Carriages and Proceedings of the Judges in this particular poynt; wherein to those who do not consider things well, they seem to have dis­allowed the King's Right of Dispensing with Penal Laws. And their Carriages and Proceedings in the other Cases, where the King suspended the Laws relating to Navigation, to Importation of French-Wines, and to The Breadth of Cart-Wheels; none of which were ever Executed, or given in Charge since the Exe­cution of them were suspended by Proclamations drawn up and prepared by his Majesties Attorney General, and passed under the Great Seal of England, and so made matter of Record be­fore they were published in Print.

Object. XII. Admitting our Judges in Favour of our Kings, whose Officers they were, to have countenanced this Right, and that our Parliaments have been silent without Complaining of the Exercise thereof, as to particular Persons, as not esteeming it inconvenient to admit the King a Power to gratifie single Per­sons; yet no Parliament ever allowed the King to have a Right of Dispensing, even as to particular Persons, much less as to Ge­neral Dispensations: and the Exercise of such a Power would in a great measure render Parliaments useless.

Answ. I. This inconveniency of the King's having this Right, as to General Dispensations, is less than his having the same, as to particular Persons. For it may happen, That Dispensa­tions to particular Persons, may by the indirect means of Gifts be­stowed on the Procurers of them, be Granted upon false sug­gestions, and the King be deceived in his Grants of them, with­out any Default in the King: But general Dispensations can­not be supposed to be made but upon great Advice, and as the Effects immediate of the King's Judgment. These therefore were never by our Law, submitted to the Judgments of our Judges, as being grounded always upon Reason of State, Pub­lick-Good, and Necessity, of which our Judges never take upon them to judge, but rely as to the matter of Fact, upon the King's Judgment: But particular Dispensations have been in all Ages under the Judgment of our Judges, so as to judge whe­ther they are well-grounded, or not, and whether the King were deceived in his Grant, or not. Secondly, As to the Allowance of this Right, in either Case, by Parliaments; If it be meant That the same was not Originally Granted to the Crown by Parliaments, it is Agreed, for if it were, it might then be taken away by the same Authority, which it is proved that it cannot be. But if by the Objection it be only intended, That it hath not been admitted by Parliaments, then the Objection is denyed. And for justification of the Denyal, as to the King's Right of Dispensing with particular Persons, these two instances will serve: First in the Act of Parliament before cited, which endeavoured to Bar the Crown of the Exercise of this Right, it must be agreed That it was admitted by that Parliament, That the King had this Right, otherwise it had been vain, to provide against the [Page 27]Exercise of it, in Dispensing with that Statute, nay the endea­vour to bar the Exercise of it, in that single Point, proves, that they admitted he might lawfully Exercise it as to other Penal Laws, and that they conceived he might have Exercised it so as to Dispense with that also, in case they took not care to bar him. The Statute intended is that of 23. H. 6. c. 8. By which it is made Penal for any one to Accept of and Execute the Office of Sheriff of one County twice: And it is thereby expresly Enacted, That every Pardon, then after made for such Offence, and for such Forfeiture, should be void, and all Patents made to the contrary should be void; Notwithstanding any Clause of Non obstante (that is any Dispensation) therein to be contained. This clearly is an admittance, That the King had this Right: But it is also further Remarkable upon this Statute, That the better to bar the King of the Exercise of this Right, as to this Law, this particular Act gives Power to the Prosecutor to bring his Action for the Recovery of the Forfeitures in his own name, intending doubtless not to have the King's Name used, and thereby to bar the King's Attorney from helping the Defen­dant, by a Non vult ulterius prosequi. Yet notwitstanding all this Solicitude and Care taken, the Law hath adjudged (as is before proved) That neither this Act, nor any other Power whatsoever; could bar the King, from dispensing with this Law, nor from using the Service of any Subject, in any Office; nor could the Subject be liable to any Penalty by this or any other Statute, for Serving the King in any Office upon the King's Command. The King being Entituled to the Service of every Subject, by the Law of Nature, by which Law every Subject owes a Legeance to the King, which Rights being in­herent and inseperable, they cannot be taken off by any Acts of Parliament. The Second Instance for proving the King's Right of Dispensation, as to particular Persons (and peradventure it may prove the same as to general Dispensations also) to have been admitted by Parliament, is full and express in the Poynt: It is Rot. Parl. 1. H. 5.11.22. cited by Rolle (a most avowed Enemy to the Crown) Tit. Prerogative le Roy. fol. 180. the words thus: The Commons prayed, That the Statutes for voyding of Aliens out of the Kingdom, might be Executed: to which the King agreed, saving his Prerogative, That he might Dispense with such as he pleased. And upon this the Commons Answer'd, That their Intentions was no other, nor ever should be, [Page 28]by the help of God. Now if this Prerogative of Dispensing with such as the King pleased were intended (as it was reasonable it might be) to Dispense with all of any particular Nation in case he pleased, and any Articles of League required it, (as they might well do, and in which Case the Non-performance would have occasion'd a War) then this Instance proves an Admittance of the King's Right, as to General Dispensations. But if it be otherwise understood only, as to Dispense with single persons, it is at least a clear and solemn Admittance of that Right. And as to the King's Right of Dispensing Gener­ally, it is proved before to be Admitted by the whole Kingdom in the Cases of his now Majesties Dispensations in Relation to the Importation of French Wines, and the Statutes relating to Navigation, and the breadth of Cart-Wheels; to which may be added the known Case of the King's General Dispensation with several Penal Laws made in Relation to a Matter Eccle­siastical: It is in the poynt of keeping of Lent, and Fasting, En­joyned by the King's Ecclesiastical Laws, the Cannons of our Church; and farther Enforced under several Penalties by the Statutes of 2. &. 3. Ed. 6. c. 19. & 5. & 6. Ed. 6. c. 3. & 5. Eliz. c. 5. In the first there is a Saving to such as shall be Li­censed by the King (which if it be intended of Licenses to particular Persons will not concern the present poynt) in the second there is no saving. In the third, there is a particular saving limited and restrained to particular Cases, and Conditi­ons, as to Licenses. All these Laws are Generally Dispensed with, by the King's General Dispensation, by his Proclamation, and this is admitted to be Legal by the Admittance of our present Parliament; and of all our Ecclesiasticks, Judges, Lawyers, and the whole Kingdom in General, by an Universal Admittance, not question'd, or complained of by any. Thirdly, As to the close of the Objection, which pretends, That the Allowance of this Right to the King, will in a great measure render Parliaments Useless: The Answer is, First, our Law-Books speak not of Licenses or Dispensations general or particu­lar by Parliament, but by the King, the King's Right is to Dispense, the Parliament to Repeal. Secondly, It is for the Ease of the Kingdom, that the Constitution of the Govern­ment is thus, For the necessity of Dispensations in several Cases, where our Penal Laws are so numerous, requires, that the Power of Dispensing with Penal Laws, should be in some [Page 29]Person or Persons always visible, and in being, which cannot be a Parliament, without a vast Expence and Inconveniency to the Kingdom, who are by the Constitution of our Government, to bear the Charges, and allow Wages to the Members Chosen, and sent by them to Sit in Parliament: And therefore it is, That our Law puts the Power of Dispensations, which are but Temporary, in the King, That the Total Repealing (if ne­cessary) may attend the calling and meeting of a Parliament, when other weighty Affairs shall require a Parliament to be called. It would be intollerable to trouble the Kingdom with the calling of Parliaments so often as there is occasion, for Pub­lick Good, to Suspend the Execution of a Penal Law; in the mean time the Publick cannot suffer in regard the Law hath well provided for it, by putting this Power in the King. So that Parliaments continue still to be useful, notstithstanding this Power be in the King. And this Power being in the King, by the Constitution of our Government, which hath placed the power of Repealing Laws, in the Parliament, as it would ren­der Parliaments useless, to put the Legislative Power in the King solely, which is of the Essence of a Parliament. So to put those Powers into a Parliament, which are of the Essence of King, would render our King useless. Our Government hath long continued and subsisted happily by the several and distinct Exercises apart by our Kings and Parliaments, of their several and distinct, proper, and essential Rights peculiar to each other: And when either shall usurp upon the other, our whole Go­vernment and Laws must be destroyed; and let the Objectors Judge whether that would endanger our Liberties and Pro­perties.

Object. XIII. If this Right, and the Powers of the Militia, and of Peace and War, and of making Leagues, were to be Exercised only by his now Majesty, the Kingdom would not think it self unsafe by entrusting him. But to have this Power, and those others inherent in the Crown, which may descend to One, who may be a Tyrant, or of a Religion contrary to what we now Profess, may be destructive to our Religion and Laws, And therefore if our Laws do vest these Powers in the Crown, as is insisted, these Laws are thus far defective, and ought to be altered. These Powers not being fit to be Exercised, but by Parliament only, and to be vested in the Parliament.

Answ. I. This Objection upon pretence of Securing our Re­ligion, labours to make it odious, by proposing to make us vio­late all those Oaths, which oblige us to be True and Faithful to the King, his Lawful Heirs and Successors, without any Re­servations or Conditions, in relation to the good Government, or Religion of such Lawful Heirs. So that in Effect it proposes to us to break Faith with the Heirs of the Crown, when ever we shall judge them to be Tyrants or Hereticks, and to become Rebels in order to the Defence or Security of the True Religion; which Principles our Religion professeth to abhor. Secondly, This Objection also tends to put us into a perpetual state of War and Blood, into a desperate hazarding of our Estates, Lives, Laws, Liberties, Country and Religion, upon a Pretence of endeavour­ing to secure our Religion and Laws. That these must be the Consequences is unavoidable; For if it should be supposed, that his now Majesty to gratifie the present Objectors, and to pre­vent the objected Dangers, which are pretended may in possi­bility happen from these Powers resting in the Crown, should agree to depart (as much as in him lyeth) with so much of his Crown as is here desired, and after that, even with his whole Crown. And that thereupon the whole frame of our Government should be Altered, as far as the wit of man can contrive to Alter the same, yet there can be no Security, but that his Majesty may repent, and endeavour by Force, or other­wise to retrieve all that is thus departed with. If he attempt this by Force, there must be necessarily a War, which proves the Truth of what is here Answered: If he can do it without War, he will not want a President to Warrant his Repealing all such Alterations by his Letters-Patent. The Case is cited by Rolle, Tit. Prerogative le Roy. fol. 165. where he says: That in the Statutes at large, 15. Edw. 3. The King revokes by his Letters Patent with the Assent of his Earls, Barons, and other wise Men of his Realm, certain Statutes made before in the same Year; Because they were contrary to the Customs of the Realm, and his Prerogative Royal, and Assented to by him by Dissimulation in Case of necessity. And (saith Rolle) those Statutes have been reputed as Repealed ever since. The Letters Patent by which these Statutes were thus Repealed, are Printed in the Sta­tutes at Large, in Anno 15. Edw. 3. a Copy of which is at the end of this Answer to this Objection. Wherefore the Dangers from his [Page 31]now Majsties repenting, will prompt the Objectors, to farther and worse Fears, not to be removed untill his Majestie and all who may be feared within the Kingdom, be put into such a condition as to cease to be Objects of Fear. And yet when this is done, The Dangers are not past. For Rex nunquam moritur nec mori potest. The King of England in his Politick Capacity is as Immortal as the World. We shall but make our Selves a Prey to that Neighbouring Prince who is Strongest, and the Strongest Prince will certainly make himself an Undoubted Title to the Crown of England, let his Religion or Temper be what it will. For if England could not subsist a Republick when it had Holland to Assist it: It cannot be, but That the Crown of England will have an Heir, now Holland is disabled from Abetting any Change of Government.