SECT. I. That the rigor of Penal Laws were insuppor­table, without some Supreme Power above those Laws, to temper that rigor, and di­spense with them, as they shall become in­convenient, &c.

HAd the World continu'd, as when God said of it, And behold all things were very good! Or at least in the condition, of which the Apostle speaks, who having no Law, were a Law to themselves, there had been no use of Laws; Mankind had followed the dictates of Nature, and done to every one as they would have been done to themselves: But when that great Impress began to be obliterated, and Man took no other measures, than what his own Will, or private Interest (how repugnant soever to the well-fare of the whole) prompted, Princes (the com­mon Fathers of their Countries) as well to obviate the Distemper, as to keep peace among their Chil­dren, first bethought them of Laws, and gave them; That such as would not do what they ought to do, for the love of Virtue, might yet be deterr'd from doing what they ought not to do, for fear of the Pu­nishment.

These Laws therefore (like ancient Statues) were drawn bigger than the Life, that they might be seen [Page 3]at distance, and perform the Office of a Pharos, in giving notice of a dangerous Shoar: Esto, and Sunto, was their best Language, and that too under the greatest severity, and largest comprehension, that no one might presume to think himself exempted. And now, since it is not in Man that he be impecca­ble, but that even the most cautious, some time or other fall foul of those Laws, and much more they, that never heed their steps, What would become of every Man, if the rigor of Law should be let loose upon him? Whosoever but stumbles on it, is in dan­ger of brusing, and on whom soever it falls, it crusheth him to pieces: In short, The wringing of the Nose causeth Blood (saith Augur) and if every man's actions shall be stretch'd, as far as they may be strein'd, who knows what bloody construction may be made of them? To go no further than our own Penal Statutes, some obsolete, others by process of time become apparently impossible, or inconveni­ent to be perform'd; What work have they in for­mer times, made among the People? Have they not been such Thorns in their sides, or rather Snares, to vex and entangle them, that Pluet super eos laque­os, might but too truly be said of them? And is any man so secure at present, that he is sure, there is no­thing can reach him? Has he so wash'd his Hands in Innocence, that he but thinks, he could say, In nul­lo erratum est? I am apt to believe all men have of­fended more or less, and consequently, cannot be without some apprehensions of danger: Even Oxen [Page 4]boggle at a Slaughter-house; And Man, of all crea­tures is most uneasie with a Sword over his Head: How necessary then is it, that there be some Su­preme Power above those Laws, to temper their Ri­gor, and dispense with them, as they shall become inconvenient: where, by dispensing, I mean the Relaxation of a Law, whereby that is permitted to be done, which otherwise, the Law had prohi­bited.

Nor would I be so taken, as if I carry'd the least Eye, against any Law that concerns Property; No; I confine my self to such Laws as respect Govern­ment, and which by reason of unforeseen accidents that may happen, or the necessity of State that re­quire it, are in their own nature dispensible, for as much as (Acts of Parliament being but Leges tempo­ris, and made for the present occasion) it may so hap­pen, that what was meant for the preservation of the Government, may by a Vicissitude of time turn to the destruction of it. The clearest Waters will gather a Sediment, and the freshest Streams run down in­to the Salt Sea of corruption; And therefore if Prin­ces shall not by Industry and Policy, keep head against the inclination of Time, all Institutions be they never so pure, will corrupt, and degenerate.

The Lacedemonian Ephori, were at first, so many Assistants to their Kings, but what by the corruption of Time, and Manners, and the want of a Cheque on them, overtop'd the Monarchy.

In like manner the Decemviri of Rome, primarily intended for the better administration of Justice, in making a supply, to such Laws as they wanted, and rectifying, and amending such as were faulty; prov'd a Remedy, worse than the Disease, and end­ed in Tyranny.

Add to this, That their so often successful Officer of Dictator, or Populi Magister, (for there lay no Ap­peal from him to the People) was never chosen for above six Months at one time; nor then either, but upon some imminent danger, and to avoid the con­fusion of several Commands; Yet that so cautelously design'd preservative of their Liberty, became at last, its destruction, in Julius.

And lastly, The Triumvirat of Augustus, Antonius, and Lepidus, promis'd fair, for setling the Common-Wealth, but proscrib'd it into Confusion. So Mo­rally impossible it is, that any condition, or State of Men, or Constitutions of their making, be the same in all Times, or sute with all occasions; and therefore, Remedies ought to be provided, as fast as Time breeds mischief. The first Man being in Perfection, abided not; and what may be expected of his Poste­rity, all Ages have found;

Of absolute necessity then it seems, That there be some Supreme Power to rectifie the mischiefs of Time and Chance, and by rectifying the rigor of Temporary Laws, or dispensing with their incon­venience, render them, and their burthen the easier; And where this Power lies, shall be the Subject of the next Section.

SECT. II. That this Power cannot lie in any Select part of the People, or in the whole: Therefore, it must be in every Sovereign Prince, or Absolute Monarch; And such the Kings of England ever have been, and now are, &c.

IN any Select part of the People it cannot lie, be­cause no part can be greater, or have more Power than the whole; and in the whole, it cannot, for they are subject to the Law themselves, as more particularly made, to curb their Exorbitancies, and keep that so much talk'd of Liberty, from running into Licentiousness: It remains then, that it lie in the Prince, i.e. A Sovereign Prince, or Absolute Monarch, who if he offend against those Laws, is unaccountable to them, Bract. l. 1. c. 8, 1. Inst. 1. b. as having no Superior in his [Page 7]Dominions but God: And if this yet requires a fur­ther Explanation, To have Merum Imperium, an entire Empire, Sir J. Davys. 61. and all the Liberties of an Empire in His Kingdom, is to be an Absolute Monarch: But such the Kings of England ever had, and now have: Therefore the Kings of England are Absolute Mo­narchs.

Such was Edgar, Anno Dom. 964. 4 Inst. 359. who wrote himself Anglorum Imperator, & Dominus; and call'd his Kingdom, an Empire. — In the Laws of Edward the Confessor, Leg. Ed. c 17. the King is stiled, Vicarius Dei in regno suo. —The 16 R. 2. cap. 5. declares, The Crown of England hath been free in all Times, and in no Earthly Sub­jection, but immediatly to God. — Edward IV. is called Supremus Dominus noster Rex, &c. Which excludes all co-ordinate Authority. —The 24 H. 8. cap. 12. further declares, That by sundry old Anti­que Histories, and Chronicles, it is declared, and expressed, That this Realm of England, is an Empire, and hath been so accepted in the World. —And the 28. of the same King, cap. 2. That the Kings of England, are Lawful Kings, and Emperors of England, and Ire­land: which are no introductive, but declaratory Statutes; For they say not, what the King, and his Kingdom shall be, but affirm, what they anciently have been, and now are. —Lastly, The 25 H. 8. c. 21. —The 1 El. c. 1. —and 1 Jac. 1. c. 1. agree in the same, and That the Crown of this Kingdom is an Imperial Crown. — In short, all Offences are said to be against the Peace of our Sovereign Lord the King, [Page 8]His Crown, and Dignity: And High Treason, con­tra Ligeanciae debitum. —The Laws of England are called the King's Laws. —The Parliament, His Parliament; 22 E. 3.3. and therein also, the King is sole Judge, the rest but Advisers. —The Power of Calling, Proroguing, and Dissolving them, is the King's. —Their ancient way of Address, was by Petition to Him. —And the later Oaths of Supremacy, and Allegiance, acknowledge the King, The Supreme Au­thority in the Kingdom; And if this be not to be an Absolute Monarch, what is? It is enough to me, that I have shewn the Apex potestatis, and where e­ver that lies, there lies the Government, and puts it out of question, whether this Supreme Power lie in the King, or the People.

But to proceed; I said before, it could not lie in the People, and (I conceive) made it out, that it must be in the King; however, to make it yet more clear, we'll put both on the Ballance, and let most weight carry it.

The People, take them in Sensu Composito, and what are they but an unwieldy Lump of every thing, and nothing? And in Sensu diviso, a kind of Sheep without a Shepherd; Every one of them, has a frisk by himself: One is for this Law, another for that, a third against both, a fourth against all, and so to the last, as the Worm bites; Quot homines tot Senten­tiae, ever was, and ever will be: whereas the King, besides that he hath but one mind, and that, directed to the good of the Community, the Law presumes, He [Page 9]can do no wrong, as being best able to judge of those Laws, of which Himself, is both Maker, and Inter­preter: Both Houses may Vote, and Resolve as they please; In the Royal Sanction only, lies the Legi­slation, and that Vis plastica, that gives the Embrion Life, and quickens it into Laws: The King makes Laws, with the Consent of the Lords, and Com­mons, not the Lords and Commons, with the Con­sent of the King; which shews, that the Legislative Power is solely in the King; For the Approbation, or Publishing of Laws in a Senate, proves not, Bodin. de Re­pub. Lib. 1. cap. 8. the Majesty of the State, to be in the Senate: And be­ing so, it necessarily follows, that He be also the In­terpreter: And so Bracton, Ejus est Interpretari, cujus est condere: And to the same purpose Dyer: Where the words of the Law are ambiguous, Dyer. f. 37 We must submit to the Declaration of the Law-giver The King, who by the Advice of His Learned Counsel, may (without calling a Parliament) expound the Law, where it is doubtful, as his Predecessors have done in like Ca­ses. —And Sir Edward Coke gives the Reason, 1 Inst. f. 73 & 99. when he says, The King is, Caput Reipublicae & Legis.—And in another place; 2 Inst. f. 268 presum'd to carry all the Laws (In scri­nio pectoris sui) in his own Breast: And what he means by those Expressions, unless it be, That as the Laws are the Kings Laws, His also is the Interpretation of them, and the Supreme Power of Dispensing with them, a wiser Man than my self may be to learn; which, from a Person (especially in his later days) no Friend to Prerogative, I lay the more weight on, in as much [Page 10]as one Affirmative of his, cannot but carry more force with every sober Man, than all those Nega­tives, he has so often jumbled against it.

Add to this, The People have nothing, but what they receved themselves; Or if ever they had, they would do well to shew it (for Possession, tho' by Dissei­sin, is good against all men, but him that hath the Right) or otherwise, they cannot be said to have given any Regality, which was never in them: For, as all Go­vernment was Originally from God, it seems also, that it was never his intention that the People should have any share in it. When there were but two Persons, as at first, God plac'd the Government in one, and said to the Woman, [...]en. 3.16. Thou shalt be under the power of the Man, and he shall rule over thee. —And to pre­vent Confusion amongst their Posterity, establish'd a Successive Monarchy, in his Speech to Cain (tho' a Bad, and his Brother Abel a Righteous Person) and that only by the right of Primogeniture; [...]d. 4.7. His desire shall be to thee, and thou shalt rule over him.—And from thence it Succeeded in Jacob's Family, for almost 2000 years: [...]d. 49.3. Reuben, Thou art my First-born, the Ex­cellence of Dignity and Power; ( [...]) Honor and Authority, i.e. the Supremacy of both; Or as the Vulgar Latin, Prior in donis, Major in Imperio: And when he, with Simeon and Levi, were for several Crimes disinherited by their Father, and the Primo­geniture fall'n to Judah, to him it is said, Thy Brethren shall Honor thee, Thy Father's Children shall bow down to thee: And ( ver. 10.) the Scepter entail'd to him.

Thus far in the World, and the People had no So­vereignty in them, and if they cannot shew when or how they got it since, it remains, that it lie radically in the Prince, as innate, and inherent in his Person, and not deriv'd from the People, or given in Trust by them, but reserv'd, from the first Origin of Power.

Nor need I run from Home, to prove it such a­mong our selves: For whence is it, that all Lands are mediately, or immediately held of the King, 1 Inst. f. 1. f. 65. f. 85. as Lord Paramount; but that they came first from the Crown? 12 H. 7.17. Or that at the beginning all Administration of Justice was in one Hand, i.e. the Crown? But that it was innate in it: 7 Coke 13. All Dominion was deriv'd from it, and what has not been granted from it, remains in it. There were Kings, Ibid. 12 H. 7. before any Positive or writ­ten Laws, and Men were then Govern'd, by a Natu­ral Equity: And what more consonant to it, than that a Sovereign Prince should not be defective in any thing requisite to the support of that Sovereign­ty? When without it, He were but as a common Person: Nay, how truly might it be said (in another sense) Ecce homo factus est sicut unus è nobis! Yet such must the King be, if he cannot temper the rigor, or dispense with the inconvenience of a Penal Statute: And there being a natural Equity also, that some such Supreme Power be, for the common conve­nience of all Men, which, for as much as it cannot lie in the People, it follows, that it be in the King, as innate in Him, and a Branch of His Prero­gative, [Page 12]which was, before Laws were, and is now become a part of the Law of the Realm: 2 Inst. 496. Stan. pl. c. 162. Cow. Tit. Pre­rog. And this, Cowel defines to be, That especial Power, Preheminence, or Privelege, that the King hath in any kind, over and above other persons, and above the Ordinary Course of the Common Law, in the Right of His Crown: Nor with­out Reason, Lib. 2. f. 55. for (as Bracton) Dominus Rex est supra om­nes qui ad Coronam pertinent: And in another place, Rex non habet parem in regno: Lib. 4. S 1. bid. S. 5. And again, Nec Superi­orem nisi Deum: Our Lord the King (saith he) is above all His Subjects: E. 3.19. He has no Equal in his Realm; Nor Su­perior but God.

Now if Acts of Mercy, and Goodness draw nigh­est God, how necessary is it that were they lost eve­ry where else, they should be found in a King? A chescun Roy (saith the Book) apent per reason de son Of­fice, E. 3. f. 2.9. à faire Justice, & Grace: It belongs to every King by reason of his Office, to do Justice, and shew Mercy. And what is Mercy, but a rebating the edge of the Law? — Quibus tamen & qualiter miserendum est, [...]ract. l. 2. doceant eum merita, vel immerita personarum. But unto whom, and to what degree he shall be merciful, let the good or ill desert of the Persons direct him: Which fully proves, that the King is sole Judge of this Mercy. When the King Pardons, He makes a total Remission of the Offence, but when He Dispenses, He only prevents a matter (not otherwise evil, but as prohibited) from becoming an Offence. A Branch of an Act, 11 R. 2. c. 3. That no one against whom any Judgment, Inst. 42. or Forfeiture was given, should sue for Pardon or Grace, [Page 13]was made void. —And it was an Article against Cardinal Woolsey, Ibid. 93. Art. 37. That he had forbidden to sue for the Kings Favor, or Pardon: which (amongst other things) is there said, to be contrary to the King's High Honor, Prerogative, Crown, Estate, and Dig­nity Regal: Nor without Reason; for as a King's being tender of his People, is not the least part of His Glory; so the intercepting those Beams, gathers a Cloud between Him, and His People, and in a manner robs Him of the advantage of being kind to Himself.

To close this; I have prov'd it of absolute Ne­cessity for the common convenience of all Men, that there be some Supreme Power, to temper the rigor of Temporary Laws, and dispense with their inconvenience; And as fully prov'd, where this Power lies. —That the Kings of England have anciently been, and now are, Absolute Monarchs: That the King's Prerogative is a part of the Law of the Land: —And that to Him only belongs Mercy, as well as Justice. In the next place we'll consider it more particularly, as it relates to the King's Power of Dispensing.

SECT. III. That without this Supreme Power the King were in a worse Condition than the Sub­ject, &c.

THe Word King, 4 Inst. 352. is Nomen Politicum, and imports that Politic Capacity, which never dies, but extends to all his Successors, as well Kings, as Queens of England; Now if this Supreme Power (as before, and shall be further shewn in its proper place) be Innate, and Inherent in the Person of the King, and not deriv'd from the People, the same Reason that has in all times supported the Liberty of the Subject, makes stronger for this Power, without which, that Liberty had never been, at best, indesen­sible: For neither can any Man grant, what he has not, nor defend, without the means of doing it: The Sub­ject has receiv'd; But how? Ex Gratia: And can Favor be said to destroy an ancient Right, which runs in Succession? Trees, and Plants, give us Fruit, and Flowers, but the productive Virtue, still remains in the Root: The Liberty of the Subject, is a precious thing; But to talk of Liberty, yet deny the Prae-existence of a Prerogative, which first gave, and has ever since supported that Liberty, what were it but to reimagin, That House on the Sand? The same Cau­ses, must, and will, have the same Effects.

Nor is this all; The King has common justice on his side: Cap. 29. No Free-man (saith Magna Charta) shall be Disseiss'd of his Freehold, or Liberties; Which Sir Edward Coke thus glosses: Liberty (saith he) is that Freedom which Subjects have: And if any Statute be made contrary to Magna Charta, it shall be holden for none. I leave this last, to the Learned; But if a Subject shall not be Disseiss'd of his Liberties, and the King a­lone, be restrain'd in His Prerogative, what also were it, but to put Him in a worse Condition than the Subject? To examin this, but de similibus, ad similia, were Argument enough, but when the heavy Scale, turns all for the King, 't were the heighth of Injustice, to deny Him His Weight. For instance,

1. Any restriction upon a Subject, 2 H. 5.5. from the Law­ful Exercise of his Trade, is void; though the Party himself, gave a Bond not to Exercise it. Gravesend Barge Case. 10 Jac. C. Ban. —Or that the Restriction, be but Temporary. —Or Exclude any one, and leave it not Free to all. —Nay fur­ther, 21 E. 4.79. 11 Cok. 53. & 85. a Man shall not be Distrein'd (though for a just Duty) by any Instrument necessary to his Trade; As the Anvil, from a Smith. 14 H. 8. 2 Inst. 565. Deut. 24.6. — Books from a Scholar. —The Mill-Stone from a Millar; as accordant to the Law of God; For it is a taking his Life to pledge, in taking away his Lawful means of liveli­hood: And this Mr. Latch calls A Fundamental Law, Post-Office Case. and the contrary, A breach of the innate Liberty of a Free-born People. And shall a Subject claim an innate Liberty, and it be yet doubted of the Kings innate Prerogative, which the Law calls Libertas Regia: Bract. l. 1. [Page 16]— Privilegium Regis: Britt. f. 27. Reg. f. 61. — Droit le Roy: —Jus Re­gium Coronae; And of which he is no more Depriva­able, than of his Crown, or Life? Has God In­trusted the King with the Good of the Community, and shall he be retrench'd in the common Exercise of it? The Men of this Age might be too wise for Pa­radoxes; a King without Power, is the same, as a King without Subjects.

2. A Subject may (upon some accidents) break a Law, yet not offend the Law; as in case of Necessi­ty, or for the avoiding a greater inconvenience, Plowd. 18.19. 2 Inst. 168. &c. Such, and the like, being exempted by the Law of Reason, when the words of the Law, are expresly against it: On which ground, tho' the killing a Man be Felony, 3 Inst. 56. yet for the inevitable necessity of saving his own life a man may kill another: 5 Coke 91. —Or a Thief, attempting to Rob him on the Road: —Or in his Dwelling-House: —Or breaking it by Night; and no Felony. 9 Coke 68. —In like manner an Officer, if a Felon resist, or fly from him, so that he cannot otherwise Arrest him, 15 H. 7.2. may kill him: —And the breaking of Prison, is Felony; but not if the Prison be on Fire. And now if Laws, may in case of a private Man, be sus­pended by necessity, how much more, when the Kingdom is in danger, of which the Law, makes the King sole Judge, Vid. Their Ar­guments by themselves, in Quarto. whither actual, or expectant? As was resolv'd by all the Judges (even Hutton and Crook concurring in that Point) in the Case of Ship-Mony.

3. A Subject shall justifie a particular Wrong, for a Public Good: And rather than the Common-wealth shall suffer, the Law will turn some prejudice to par­ticular Persons. Every Man's House is his Castle, Dyer. 34. yet a Sheriff (if refus'd entrance) may break it to appre­hend a Felon: —Trespass, is an offence against the Pro­perty of another, and always presum'd, to be done Vi & armis; yet justifiable for a common benefit; as to make Bulwarks in another mans Ground, Dyer. 60. 3 Inst. 84. or dig Salt-Peter in his Out-houses, for the defence of the Kingdom: 11 Coke 82. Dyer 36. 8 E. 4.18. 21 E. 4.28. —To pull down Houses in a public Fire: —To turn the Plow, on the Head-land of another, in favor of Husbandry: —And dry Nets on his Land, for the maintenance of Fishing; and all this, because private prejudice, is repaird by public Utility. —Nay Mr. Prynn, justifies his Lords, Power of Par­liament. Part. 4. p. 22. and Commons, for laying Taxes on the People, for the public Good, tho' in truth, it was but to support a Rebellion. And shall the King that hath the largest Stake in this public Good, want so necessary a part of the Government, as not to be able to dispense with an inconvenient Statute, especially, when the not doing it may endanger that Good, which is the end of all Laws? If a Subject may justifie (as before) à fortiore may the King, in the present Case: For, all positive Laws, being subordinate to the safety of the People, against which, even the Law of Property carries no force, it is but just, and reasonable, that they give place to the Law of Nature, for common De­fence.

4. Where the Subject is enabled to the Greater, he is of consequence enabled to the Lesser. 8 Coke 70. A Man has power to make Leases, provided they exceed not three Lives, or twenty one years: he may Lease for Ninety nine years; if three Lives live so long; for 'tis a lesser Estate: à fortiore, where the King is en­abled to the Greater, shall He not also be enabled to the Lesser? He can Pardon, what hinders but he may prevent? Witch-craft, and Heresie, are Offen­ces against the first Table, yet the King may Pardon both: how much more then, Dispense with any thing, no Offence against the second Table? Nor shall I believe but the Commons of that Parliament that brought in this, and the later Test, were of Opinion, that His Majesty might dispense with them, till I am better enform'd, what was the meaning of that Address of theirs to the King, Jan. 20. 1680. wherein they say, It was their Opinion, That the Prosecuting Prote­stant Dissenters, upon Penal Laws, is at this time, grie­vous to the Subject, and dangerous to the Peace of the Kingdom: And what meant they be not Prosecuting, but that they might, nay ought, to be dispens'd with? 'Twas their Opinion in one Case, 'tis the King's in another; And shall not the Lord be (at least) as his Servant? But to go on with the Argument.

High Treason is the most heynous of all others (Crimen laesae Majestatis) and yet the King may Par­don it, 3 Inst. 211. or any part of the Execution; or all, saving part. —The Sentence for Felony is Hanging; yet the King may alter it to Beheading: As the Lord [Page 19] H. 32 H. 8 — Edward Duke of S. 5 E. 6.—The Earl of C. 7 Car. 1. and others Attainted of Felony, yet Beheaded. —The Judgment against a Wo­man for Treason, is Burning; yet the Countess of S.—Anne of B. and others in H. VIII's time.— And the Lady J. G. 1 Mary, Attainted of High Trea­son, were Beheaded.

And is not the Body more than Raiment? Shall the King have the Power of Life and Death, and yet be restrain'd in a matter of indifferency? Shall e­very Man be Lord and Judge in his own Family, and the King alone be curb'd in His, the Kingdom? Shall he always see with other mens Eyes, hear by other mens Ears, and He that is to set Copy's to others, have His hand held, for fear of blotting? Let them that are of that Opinion, make it their own Case: If preservation is to be preferr'd before Benefit, it necessarily follows, That there be some Ultimate Judge of the Means.

SECT. IV. That no Government can be entire, that is defective in any necessary part; and therefore all Governments, besides the Power of the Sword, have ever preten­ded to this Supreme Power, as a sine qua non, &c.

BY an entire Government, I intend such a Go­vernment as carries in its self all things neces­sary for the Defence of its self, and all its parts; without which, it were defective, and consequently, as no Government, because it could neither encoun­ter dangers from Abroad, nor obviate, unexpected Emergencies at Home: Now if the power of judg­ing the means of doing this, be of absolute necessi­ty to all Governments, and that it will be hard to find any Age so innocent, wherein some Law or o­ther, has not been brought in (not to say obtruded) by Interest, or Faction, it seems of as absolute ne­cessity, that every Government carry also in its self, The power of dispensing with Laws, which, how­ever at their first making, might be proper enough, yet upon other Reason of Affairs, may prove incon­venient, or be thought, may become so, and there­fore fit to be dispens'd with: For Prevention is as necessary as Defence, and wise Men meet Dangers [Page 21]half way; and the not doing it (what Demosthenes told his Athenians) like Country-Fellows at Cudgels, that never ward a Blow till struck.

To examine it a little: That there can be no Soci­ety without Government, needs no proof; and that there can be no Government that answers not the end of Government, which is Common Safety, needs as little; for without it, what were Peace, but a mere Notion? A kind of Truce, or Cessation, no laying down of Arms. To support this therefore, all Governments have not only pretended to the Power of the Sword, but as a Consequent of that, to this other of Dispensing. I shall but touch the former, because I take it for granted, as an insepara­ble incident to the Sovereign Power; for the Pow­er of the Sword, being for the Defence, and Prote­ction of the People, is subservient to the Govern­ment, and must needs belong to him, with whom God hath entrusted the Government, as a necessary requisite, without which, He cannot perform that Trust: For what were it but a thing in Name, if it had nothing to work on, or how could it subsist, without a Command over the People? Or be more called Government, than a Cripple, or a Para­litique, an entire Man; inasmuch as the one, wants his Limbs, the other, the use of them? And what shall we talk of a power of Commanding, without a power of exacting Obedience to those Com­mands? All Government were precarious without it, and men would Obey, but as themselves listed. [Page 22]Nor is it more possible there could be Order without it; and where that's wanting, there must be Confu­sion: Una Eurusque Notusque ruunt—And what was the Effect of it? — Ad litora fluctus. In a word, Brambles grow at both ends, but the cross-encoun­ter of the Sap, withers the middle: How necessary then is it, that there be some Ultimate Judge, whose Dictates be Conclusive? for to admit them Disputa­ble, were to suppose a possibility of Erring; the least apprehension of which, begets Disputing; that, Si­dings; those Factions; and they, every thing: By these steps, crep up the Parliament of 1640. and therefore, made it one of their De quibus non disseren­dum: That Egg, not crush'd in the Shell, might have broken into a Serpent, and spoild all. —What shall I add? Moses, no sooner nam'd a God to his People, than he brings Him in speaking, Let there be Light, and it was so: He gave them no time to think; as (perhaps) doubting, they might have dis­puted, if not the thing, His Power over them.

In like manner, for the Power of Dispensing with Penal Laws, which is but a Concomitant of the for­mer.—It is God alone that can comprehend all things at once; past, present, and to come, are the same with Him, and, I Am, bears no distinction of Tenses: Whereas Man, concluding only from the more pro­bable of the Premisses, how is it possible for him to foresee all the intercurrencies, and perplexities of Time, and Chance; at best, so sufficiently, as to be secure against them? The best Gamester [Page 23]cannot prevent all Blots, and the most expert Marks-man may sometimes carry over, as well as not reach home: And therefore, because in the ma­king of Laws, it is as impossible, as in Philosophy, to find (the Maximum quod sit, or Minimum quod non) That indivisible Point of Proportion, or sufficiency, just so much as will do, and no more; as impossible (I say) as to make a Shoe shall fit every Foot, any Rule so general, as shall admit no exception, or Law so absolute, but that in some Case or other, there is no Provision made; or shall not fail in some particu­lar; or by Corruption of Time, not corrupt with it; It is of absolute necessity, that the Government, whatever it be, have the Supreme Power, of keep­ing all Temporary Laws, and provisional Remedies, to their first intention, or dispense with them, as they prove inconvenient, and therefore fit to be di­spens'd with, till they shall be better Abrogated. I instanc'd erewhile, in the days of Old; but as I come nearer to my Matter, I'll come nearer Home; And let him that Reads me without prejudice, con­sult our own Histories, and he'll find, that even our best Constitutions, how prudently soever at first intended, have by the same Corruption of Time, and Manners, not only fail'd in their end, but on the contrary, turn'd to hurt.

I said before, That at the begining, all Admini­stration of Justice was in one Hand, i.e. The Crown, &c. But as People encreas'd, this Administration, was divided into Counties, and the King appointed [Page 24]His Deputy, in every County to be Conservator of the Peace at Home, and defend it from Enemies from abroad; who was called, The Ealderman, Earl, or Shyreeve, i. e. Praepositus Comitatus (for so the Sax­on) and is our now Sheriff; But this answer'd not the intention: For the Office being at that time granted in Fee, with a Tourne, County-Court, and a third penny of the County, to support the Dignity, they became so obnoxious to the Crown, that they led their Counties as they pleas'd themselves, and not often, against it: to lessen this growing Autho­rity, as our Kings afterwards granted Lands, they al­so granted Court-Leets, and Court-Barons, to the re­spective Lords of those Seigniories, or Mannors; And what effect had that Royal Munificence? But that it so put them in the Head, of how much more Power was wanting, that in the 17th. of King John (with Swords in their hands) they complain to Him, of an infringment of their Liberties (the first time, if I take it right, that any such Liberty was ever talk'd of; For that of the Men of Kent, to Willi­am the Conqueror, was a formal Stipulation with a Conqueror, to whom as yet, they ow'd no Na­tural Ligeance) and extort a Charter from Him, at Running-Mead, which laid the Foundation of the Barons Wars.

However, this was expediated for the present; and now the erecting of Borroughs, and Corporations (so many distinct Liberties in a County, and Ex­empt from either of them) might, one would have [Page 25]thought, been a prudent Expedient of lessening both, and at first, it struck well towards it; for as the one got ground, the other lost it, but it lasted not al­ways, without running into worse.

Henry III. and his Father before Him, had been long turmoil'd with those Barons Wars, and having at last, after a threescore years Rebellion (more by Factions amongst themselves, than any strength of his own) got the better of them, began to consider that those Seditious Barons (for as yet the Commons were not any Constituent part of a Parliament) had brought Subjects to be more than they should be, and Kings less than they were, and therefore (in the 52. of his Reign) calls a Parliament, and brought in the Commons, to counter-ballance them: And Edward l. (his Son) by calling some few of His Ba­rons to Parliament by Writ (and that, pro hac vice tan­tum) insensibly lessened their number, and freed the Crown from the Wardship of His Barons.

And yet even this, answer'd not the Expectation; for as those few that remain'd became the more con­spicuous, so the Staddles being not left too thick, the Underwoods, got up the easier: The Commons fell into a Foreign Trade, that Trade brought home Moneys; those Moneys gave them footing in the E­states of the Nobility, The device of common Re­coveries (in Edward III's time) secur'd those Estates, All together, gave them Reputation, and now who knew, but another Rebellion, might make them, Lords also?

And now, Privilege, is set up against Preroga­tive, nor could they long want some Discontent a­mong the Lords, to give it Countenance: The Crown was become necessitous, and indulg'd their Demands; and what was the effect of it? They take upon them to be Judges of the Right to the Crown, and accordingly, give up Richard II. to the undue pretences of Henry IV. and though they as­sisted Richard Duke of York, and his Son, afterwards King Edward IV. to the recovery of their Right, a­gainst Henry VI. yet they set up Richard III. against their lawful King, Edward V. However Henry VII. deeming them of more use to Him than a topping Nobility, first clip'd the later's Wings, by the Statute against Retainers, and then, lessened their Grandeur, by encreasing their number: Since which, the Kings his Successors, having added more, and not the least share of Abbey-Lands, fal'n to the Commons, what have all these prudent intentions prov'd, but a run­ning from one extream to another? And of what ad­vantage this last has been, let the Rebellion 1640. Witness.

There is one thing more, which I had almost for­gotten: Gylds, Fraternities, and Corporations, ex­cellently (without question) design'd at first, for the Advancement of Trade, by carrying it on with a common Stock; Regulating the Abuse of Manufa­ctures; keeping their Members in Obedience to the King, and the like: But have not they also, fall'n from the first intention? Is Trade in general, advan­ced [Page 27]by it; Or has it not been made use of as a double Key, to Let-in some few, and Lock-out the greater number? Are Manufactures either improv'd, or re­ctifi'd; Or has not the knack of making them sligh­ter, crept in its room? And instead of Obedience to the King, have they not been the common Sourse, and Fomenters of Sedition? If this (and what I have offered before) be true, it proves my Assertion; and if it be not, what means all this Lowing, and Bel­lowing of the Herd? The first intention of Physick, was for Prevention, and Remedy, yet it often so hap­pens, that it joins with the Disease, and both work together, to the destruction of the Body. And there­fore upon this matter, it seems to be of absolute ne­cessity, that there be this Supreme Power; and that it be exerted in counter-working the injuries of Time, and Chance, by making provision for Contingencies, in the due application of occasional Remedies, with­out which, there would be a failer in Government. Now if this Power were ty'd up to such (Dogmata adamantina) unalterable Decrees, that in no case whatever they were to be vary'd from, where were the use of it? The contrary has been the practice of all Ages, and therefore I shall not labor the Point at present, till I come to shew what the Kings of En­gland (and that de jure) have done in like cases; of which, in its proper place.

However yet, before I leave it here, and because also, I am wholly at home, it may not be amiss to examin whether the late Usurp'd Powers, did not [Page 28]look upon this Power of Dispensing, so absolutely necessary to the carrying on their Arms against their Leige-Lord and Sovereign The King, that (to say nothing of the Divine Law) they not only dispens'd with Statue-Law, but even the Common-Law too, which, where it made not against themselves, they held indispensible?

I shall begin with the Parliament I so lately men­tioned, where Collonel Nath. Fienns (afterwards, one of their Commissioners for the Seal) tells them, That it is against the Law, and Light of Nature, for a Man to Swear never to consent to alter a thing, His 2d. Speech to the House. p. 13. which in its own Nature alterable, and may prove inconvenient, and fit to be altered: And that both Houses were of the same Opinion, may be seen in this, that they acted accordingly: For by the Name, of the Lords and Commons in Parliament, they Ordain'd, and again made non Obstantes to those Or­dinances. As 9th. October 1643. — 23th. May 47. — 22th. and 24th. April '48. — 24th. July '48. —and 16th. December '48. Repeal'd their own Or­dinance of 29th. August '45. which is contra Consuetu­dinem Parliamenti. Then again, as they grew higher, They Abolish'd Episcopacy, Any Letters Patents from the Crown, made, or to be made, or any other Authority whatsoever, any Law, Statute, Usage, or Custom to the contrary notwithstanding. 9th. October '46. —Sold Bishops Lands with a like Clause 23th. September '47. —And Abrogated the Feast of the Nativity, and all other Festivals call'd [Page 29] Holy-days, any Law, Statute, Constitution, or Ca­non, to the contrary notwithstanding, 3d. June '47.

Then, when they had killed, and taken Possession, and Enacted themselves, the Supreme Authority of the Nation (I speak now, of the Commons, for I find no concurrence of the Lords, after the 9th. Jan. '48.) they made non Obstantes to their own Acts: As the 8th. and 19th. June '49. —Took away Tithes appropriate. 8th. June, '49. —Recontinu'd Pleas in Durham. 19th. June, '49. —Sold Fee-farm Rents. 27th. July, '50. —Set up Marrying by Justices. 20th. Aug. '53. and several the like, and every of them, with this or the like clause; Any Law, Statute, Custom, Usage, Act, Ordinance, (and in the matter of the Purchasers of Sir John Stawel's E­state) or Judgment, to the contrary notwithstanding.

And Lastly, When they had play'd the Game into Oliver's hand, was his Instrument of Government set to any other Measures? His Ordinances of the 26th. Decemb. '53.— 20th. March 53.— 16th. May, '54.— 2d. and 9th. June, '54. and several others, carry the same, or like Clauses: In all which, did they not more than im­ply, That the Power of Dispensing, was insepara­bly incident to the Supream Authority, in whose hand soever it were?

Object. But may some say, we know what they were; they had no Right; nor could better be expected from them: But now we have a Gracious King, Sworn to defend the Laws, &c.

Answ. Very well. But then why do we doubt him in that defence? The Law says, He can do no [Page 30]wrong; and shall we presume he will do it? But does there nothing more lie under the Word Sworn? For fear there should, I give it this further Answer: That when the Promise is not annext to the Authori­ty (as in the case of a Soveraign Prince) but a volun­tary condescention, that he will ordinarily govern by such a Rule, his Estate is not thereby made conditio­nal; and tho' he be oblig'd in Honour to the perfor­mance, yet the Authority ceases not, if he fail in it; for the People still owing him an absolute Subjection, that Prior Subjection cannot be dissolv'd, or lessen'd, by any Subsequent Act of Grace. The King is to all Intents and Purposes, 7 co. Calvin's Case. King, before Coronation; and consequently, without that Oath which he makes at his Coronation. Nor does he promise more at that time, than he was Morally pre-oblig'd to do; it be­ing no other, than a Free, Royal Promise, to discharge that Duty honourably, which the Laws of God, and Nature had requir'd of him without that Promise.

To bring the case home: Did those Lords and Commons make, and vary Laws, according to the present condition of their Affairs? Had they the pa­tience of untying any Knot, their Sword was capable of cutting? Shall Men that had not the least face of Right, make, and unmake, break, and dispense with so many known Laws, to support a Rebellion? And shall it be doubted, whither a rightful King may pass by one single Law, for the preventing, or suppressing another? Shall it be confest, Their Nobles broke the Band of Government; their Prophets, Prophesy'd [Page 31]falsly; their Priestlings, Sanctify'd those Ordinances; and a foolish People, lov'd to have it so? And yet be said, The King is out of his way, when yet he keeps within his own Circle, and does no more than what the Law of Reason, the Law of the Land, as well as his Prerogative, warrant him the doing? The Matter of this first Test falls properly in: I'll ex­amine it a little, and leave every unbia'st Man to his own Judgment; wherein nevertheless, tho' it may be beyond my skill to make the deaf Adder hear, I hope I shall offer some reason yet, why he should not hiss.

SECT. V. The Case of the Test ( 25 Car. 2d.) stated: And that his Majesties granting Commis­sions, to certain Persons, not qualify'd ac­cording to that Act; and retaining them in his Service, is warrantable by the Law of Reason, and the Laws of this Land, &c.

THe Case upon this Matter will fall to be thus. His late Majesty King Charles the 2d, in the 25th. of his Reign, passes an Act of Parlia­ment, whereby all Persons, not taking the Oaths of [Page 32]Supremacy, and Allegiance, &c. and Subscribing the Declaration, therein specify'd, after the manner, and according to the time, by the said Act limited (which for brevity, Men call the Test) shall be ipso facto disabled, to hold any Office, Civil, or Milita­ry, within the Kingdom of England, &c. and the said Office void, &c. Notwithstanding which, I conceive, and doubt not but to prove, That his Ma­jesties granting Commissions to such, or such Persons, not qualify'd according to the said Act, is no more than what is warrantable, by the Law of Reason, and the Laws of this Land.

I shall begin with the Law of Reason; and whi­ther we take the Argument, Ab Honesto, ab utili, Or, à tuto: I conceive, every one of them makes for me. For,

1. What Honour is it to be King of a People that He cannot command? What Profit, to have useless Persons, that take up room, but bring no Honey to the Hive? Or what safety, when instead of an Ene­my from abroad, He cannot say, He is secure at home? How must that Prince have behav'd himself, where His People fear him, not for him? What assistance can He expect from them, and have no reputation with them? Or what common safety to the whole, when neither dare trust one another? And what must the consequence of this be with the people? The People, who take nothing by a true Light, but as it is foisted on them, through false Opticks: Veresimile, is the same with them, as Verum, and if it but look [Page 33]like it, 'tis the same, as if it were so: It naturally fol­lows, That (Conflatâ magnâ Invidiâ, seu bene, Tacitus. seu malè gesta premunt) having gotten a malicious Opinion by the end, let the Prince do well or ill, they'll be sure to traduce him: Whereas the Staves of Beauty, and Bands, go together, but where there are Jealousies, and Divisions, there can be no Honour, Profit, or Safety to Prince, or People.

The Form of Government is that, which actuates, and disposes every part, and Member, to the com­mon good of the whole; and as those Parts, give Strength and Ornament to that whole, so they receive from it again, Strength and Protection in their seve­ral Stations: Whereas, if this mutual Interchange of Concord, and support be broken, it cannot be, but the whole must fall in pieces, for want of that com­mon Ligament, that kept it together: From whence I infer, That as to restrain his Majesty from making use of any part of his Subjects, for the common de­fence of the whole, is a breach of that mutual Inter­change; so the granting those Commissions, being a support of it, were for the Honour, Profit, and Safe­ty of the King and Kingdom, and consequently (as far as they have any force) warrantable.

2. The King is bound to defend his Subjects, ac­cording to the best of his skill; and that, because Sub­jection, and Protection, are Relatives: And who now, shall be Judge of that skill, Himself, or the People? Who shall order a Battel, the General, or the Army? Who Prescribe, the Physician, or the Pa­tient? [Page 34]Or judge of the Helm, the Pilot, or the Ships-Crew? And is it not stronger on the King's side? Soveraignty is a Commission granted by God to the Prince, who is the Soul that informs, and actuates, that incompacted Body, the People; and whose Of­fice it is to command: It is by the same Authority in­trusted to him, for the good of the Community; and shall he stand accountable to God, for the discharge of that Trust, and yet be restrain'd by them, in the common exercise of it? Nay, is it not a disappoint­ment of that Trust, by disabling the performance of it, in the Interdiction of the means? Or suppose he could transfer that Trust, were it not a discharge of the power of executing it? And then, where lay the necessity of Obeying? For, Empire, and Obedi­ence, being Correlatives, where the Right of com­manding ceases, the Duty of Obeying, ceases with it, and the Government is no longer from God, but the People. And here also, the granting those Com­missions, being but a just Assertion of that power, entrusted as aforesaid, are also warrantable by the Law of Reason, and consequently, well granted.

3. What damage is it to the whole, that the King makes use of any part, without excluding the rest, who are equally oblig'd, to serve him with the rest; in as much, as what concerns the whole, ought to be defended by the whole; and where the danger is general, the defence ought to be as general? Or if it were a damage, it were but Damnum sine injuria, be­cause the Law of Nature (as I shall come to shew [Page 35]presently) wills it. Of what use is a Diamond in the Rock? Arms in an Arcenal, without Hands to ma­nage them? Or Books in his Study, that dares not take them down, for fear of misplacing? One half of the World lives by credit with the other half: No Com­merce or Traffick could be kept up without it; And even Princes themselves, are secur'd at home, by their Reputation abroad. And does not this Reputation lie in Strength, i.e. the power of commanding their Subjects? And if any part of that strength be taken off, is it not a lessening the strength of the whole? Or can that whole be said to be safe, when any part lies unguarded? I cannot tell what the Men of the next Age may be, but experience has taught those past, That the Tortoise, is secure within its Shell, but if any part lies out, all the rest are in danger. And in­evitably the same, must the Condition of that Prince be, who shall be thus wanting.

Whereas on the contrary, that of Dido to Aeneas, ‘Tros, Tyrjusque mihi nullo discrimine—’ brings all to rights again: For the King is abridg'd in none of his Subjects: The Kingdom has its whole strength: And every Man, becomes another Arrow to the Bundle. Here is no danger of Obstructions, for the Circulation is clear: No Quarrel among the Children, for they are all alike to the Father: And no fear of a Discontented Party, when every one falls in to the support of that whole, whereof he [Page 36]reckons himself a part. In a Word, tho' the Gar­ment be of divers Colours, there's no Rent, or Seam in it: No Wound to fester, or bleed inwards: No jarring string to break the Harmony, or excuse for standing idle in the Market-place, when they may come in if they please. And therefore, these Com­missions being of no damage, but on the contrary, a further Security to the Kingdom, I conceive them fur­ther also warrantable by the Law of Reason, and consequently (as far as that goes) well granted.

Nor are they less warrantable by the Laws of this Kingdom. For if the Kings of England, by common usage, which is common Law, have without Parlia­ment (nay during the time of their Sitting, but with­out taking the least notice of them) by their own in­herent power, grounded on the necessary reason of defence, commanded their Subjects to their aid; and if several Acts of Parliament, have declar'd, That the Subject owes the King a natural Obedience, and Alligeance, and are thereby bound to serve Him; then His Majesty's now granting these Commissions, is also warranted by the Laws of the Land. And that it has been so done, and declared, I am coming to shew.

1. That the King is to defend, and the Subject to obey, Judge Hut­ton's Argu­ment against the King, in the [...]ase of Ship-Mony. needs no proof: An Act of Parliament, that he should not do it, or have no aid from them, were void in its self, because it would be against natural Reason, saith Judge Hutton. And Judge Crooke, who also gave his Judgment against the King, in the same [Page 37]Case, confesses, That when the good and safety of the Kingdom is in danger, Judge Crcok's Argument in the same Case. the King may command all his Subjects to provide and furnish Ships at Sea, with Men, Munition, &c. at their own Charges: And this (saith he) I hold to be agreeable to Law and Reason. — Edw. the 3d, in the 10th, 11th, and 12th. of his Reign (a Parliament then sitting) sent out his Writs for Aids, without taking any notice of them, or the least complaint on their side, that the King had stretcht his Authority. — The two Chief Justices, and Lord Chief Baron (in the same case) said, It was the constant practise in the Reigns of Edw. 1. — Edw. 2d.—Edw. 3d. Annals of Ch. I. Fol. 599. And so agreeable to the Common Law of Kingdoms, That the King might compel the doing it, in case of refusal. —No Age, Order, or Person exempted: Ibid. An. f. 517. So Rich. 2d. command­ed all Men between 16. and 60. to be in readiness. —Writs to Archbishop of Canterbury—York. —Abbots, &c. That they, and all their Clergy, 1 H. 4. should Manus adjutrices apponere.—The like (of the same King) to several Counties of England, to array all the Lords (& omnes homines defensibiles) and all such as were able to bear Arms; and those that were im­potent, and could not go, to contribute.—The like in Hen 6th.—Hen. 7th.— and Hen. 8 's time.— And to the Cinque Ports, 48 H. 3. That they come Day and Night to the King, when any danger is.—For (as Judge Jones, Ibid. An f. 591. Br. Ten. 44.73. Fitz. N. B. 28. 7 Cok in Calv. with whom also agrees our Statute Law) The King hath an interest in the Person of His Sub­jects pro bono publico—Or as need requires.—And may [Page 38]dispose of their Bodies for the defence of the King­dom. Stat. 2 H. 4. c. 24. 9 H. 3. c 20. 11 H. 7. c. 1. & 18. 24 H. 8. c. 12. 3 Ed. 6. c. 2. —Command them to go with Him (or with­out Him in His Service) as well without, as within the Realm. And the reason of all this is, because they are bound by their Alligeance to serve Him, and this Alligeance due, by the Law of Nature. In short, every Subject, is by reason of his Natural Alligeance bound to serve the King, when required by the King: But no Act of Parliament can discharge the Subject from this Natural Alligeance: Therefore every Sub­ject is bound to serve the King, when so required. To which if it be said, a disability, is no absolute dis­charge. I answer, where lies the difference, as to the main, whither a parcel of Thieves kill a Man's Servants, or bind them so, that they cannot defend their Master?

2. The King is sole Judge of the danger of the Kingdom, and how, and when, it is to be prevented, or avoided: Which also was acknowledg'd by Hut­ton, and Crooke, in the Case before; and Mr. St. Johns in his Argument against the King, Ibid. An. f. 483. says thus, The Sheriff has the Posse Comitatus, and therefore it follows, that the Posse Regni is in Himself. And shall the King have the Power of the Kingdom, and be thought not to know how to use it? Or if He does, where lies the Quarrel? Ought not the Judge of the danger to direct the means for avoiding it? Surely yes: It is not the Tenant by Castle-guard, but the Lord, that gives warning, of the Enemy; and the Reason is gi­ven by Sir Edward Coke, lest the defence come too late.

The King by His Commission, says, Such or such a Person is fit for His Service; no averment lies against it: The King in a Ne exeat Regno, affirms, 1 Eliz. f. 105. That I. S. will go beyond Sea: It is not traversable.—What a Judge doth as in his Office, Dyer. 163. 7 H. 7.40. shall not be assign'd for Error. And shall any thing be wanting in the Foun­tain, that issues in the Stream? Shall the Delegate have more power than him that Delegates him? If no averment, or traverse, shall be against the Act of a Judge, how much less then, where the King is absolute Judge? Suppose there were but Vulgaris Opi­nio in the case: Even common Fame is a sufficient ground for prevention; for, Lord Bacon. Fames are no less the preludes of Seditions to come, than the Relicks of Seditions past; and will the People never believe a Treason, unless the Prince be kill'd? The King has secret Intelligence, we know not, and must He make no preparation, without He reveal it? And if He should, how long would it be a Secret?

3. The Law requires nothing to be done, but it permits the way, and means, how it may be done; else the Law were Imperfect, Lame, and Unjust: Imperfect, for want of Provision; Lame, for want of Power; and Unjust, in requiring an Impossibility: A kind of sending forth a Messenger, (as Solomon) and cutting off the Feet; whereupon it is a Maxim in our Law, That when the Law gives a Man any thing, 1 Inst. 153. 11 Coke 52. it im­plies also of that, without which the thing it self could not be. As, a Man takes Ground of another, the Law implies, he shall have a way to it. 9 E. 4.35. —Or has a Pipe [Page 40]running through another Man's Ground, he may en­ter to mend it, 8 Coke 146. 9 Coke 11. 1 Inst. 161. as cause requires.—So, may the Lord, to distrein.—He in Reversion, to view what waste; and the like; for to take away the means, were to destroy the end. In like manner here: The Law says, The Interest, and Soveraignty of defending, is the King's; and shall it not also allow Him the means of doing it?—The King has the absolute Power of Peace, 19 E. 4.6. 13 Car. 2. c. 6. and War.—The Supream Government of all Forces by Sea and Land: And shall He be fore-judg'd the choosing His Souldiers? 'Twas the short (pro Re­pub. honesta) Saying of Galba, Tacitus. when He refus'd a Do­native to some Mutinous Legions (Legi à se Militem, non emi) That he us'd to choose his Souldiers, not to give Mony for 'em: As well knowing, that the next demand had been the Empire; as indeed, it fell true in him; for what was that Power of the Sword, when he was not secure, of not having it turn'd upon himself? Or of what better use to any Prince, with a Pad-lock on the Scabbard? The Scots have a pat Word for it; A Feckless Tree-Sword.

4. Lastly, there remains yet another Argument, that carrys in it, both Law, and Reason; there was a necessity upon His Majesty at the time when he grant­ed those Commissions: A Necessity, of preventing a Necessity: And who knows not, but Necessity is the Law of time, and action, and regulates the Law of the place? As that of David's eating the Shew-Bread; and our casting over Goods in a Storm. And who also is so great a stranger at home, that has not (at [Page 41]least) heard of those preparatory Libels, and Scan­dalous Declarations (for some time before) nightly scat­tered, and daily communicated to Friends? What was the meaning of those hollow Blasts? Were they ever the Forerunners of Fair Weather? Or not of the contrary? 'Twas a shrewd Argument all was not well, or not like to continue well.

But before I go further, I must be forc't to look back, the way (in this case) to make haste, being to stand a while and consider.

• 1. The time when this first Test (for I shall not speak to the other, till my second part) was made.
• 2. By whom carry'd on.
• 3. To what end.

As to the First: It was in the Year 1673, at what time the Fears and Jealousies of 1640 (like China-Earth laid in by the Grandfather) had fermented into a better condition of being wrought: The old Chase was foil'd, but not so absolutely lost, to the despair of a Retrieve; they had their Fathers Plat-form; most of the Materials would serve again, and who knew, but they might improve upon't? If they fail'd, 'twas but what others had done before 'em; and if it hit, there was a full amends for all: So readily do Drown­ing Men catch at Twigs, and ( Epimetheus like) keep Hope in the bottom of the Box, when it had been bet­ter, to have forborn the opening it.

Then as to the Carriers of it on: What were they but two or three First-Rate-Discontents, who being out-witted in their point, gave themselves up to that [Page 42]peaceable resignation, of taking no notice of it, till they had contriv'd a Revenge? The Word was, The King hated them, or lov'd them not, which (to such Men) was all one; nor could they believe, his Heir presumptive (as they call'd him) should be much fonder; and therefore, a Bill of Exclusion must secure all: And however the House of Lords (to their Eternal Honour) threw it out, yet was it never set on foot again among the Commons? or that, weak­ly? Let it perish as it lies, nor will I rub the Nap too hard, for fear of discovering the Thread.

And Lastly for the end of it: The Title ('tis true) calls it an Act for preventing dangers, that may arise from Popish Recusants. But what says every Man that wears not a Bibb, and who, if he belies not his Con­science, cannot but confess, That the main drift, and end of it was to keep His now Majesty from the Crown, by undermining Him in His Dependencies first, that they might the better afterward attack Him in His Person? It was against their Interest, that He should come to be King, and therefore, 'twas but necessary, that they rid Him of His Friends, till (as the Gaderens by our Saviour) they cou'd get Him out of the Country. And can the King be safe, while such a Law is in being? It may be much doubted: For when the Word of a King, that he will not alter Reli­gion, as it is now establish't by Law, is of no credit, without farther Security, what must the meaning of it be, but that they that are for having this Act stand, either dare not trust Him, or could be well content, [Page 43]that it had taken effect? Or if it be only a point of Honour in the case, I would fain know, whither He­rod's, nevertheless for his Oaths sake, were any excuse for cutting off the Baptist's Head? I should think not; inasmuch as the keeping such an Oath, did but add to the Crime, and he might have better askt God for­giveness, for the making, than the breaking it. Where an Oath obliges not, less does Honour.

Object. But may some say, should not all Laws that concern Religion, be like those of the Medes and Persians, immutable?

Answ. Wee'll suppose it for once: But then what are become of all our own Statutes of that kind, be­fore Edw. the 6th? Or if we measure it by the incon­venience, what effect had that of the Medes and Per­sians, in the case of Daniel, but that it expos'd an In­nocent to the Lions, and made Darius rather shuffle with his Authority, than disoblige a Faction, which he might have crusht with a Breath, as he did after­wards?

But to go on: Was there no danger from any other sort of Recusants? Was there no Oxford business? No Rye-House? Was this, and the late King, to have been Murder'd in Masquerade only? Yes, yes, (I hear 'em say) There was a Plot, and a Plot with a Wit­ness! But 'twas a Popish Plot: Had not the King been kill'd in St. James's Park, if Pickering had not ramm'd the Silver Bullet, into a Consecrated skrew'd Gun, before the Powder, and at another time, the Flint been loose? Did not Oates, and Parteners Swear it? [Page 44]And did not the Rulers believe him, and the People, in him? And therefore, if neither Test, nor Exclusi­on would do, was not Venient Romani sufficient ground for an Association? Oh Hoe! Bene habet, nil plus inter­roge—Your Servant, Sir.—But was there no Republican Plot in the bottom? was not the truth of the one, slur'd on the World, under the disguise of t' other? Such (I must confess) as suffer'd on the ac­count of the Popish Plot, deny'd it to their last;— They were all (but one) Papists.—But, see the In­genuity of the Godly! Not one of them, but confest theirs, with this tender distinction only, that they were guilty of the Conspiracy, but not of the Trea­son.— Habeat jam Roma pudorem! When would the others have done as much?

And after all this (to take in Hutton, and Crooke's distinction) was not, Hannihal ad portas? Was there no Bellum flagrans? No actual War, at the time when His Majesty granted those Commissions? What was the then Rebellion in the West? and that other, at the same time in Scotland? Clouds, no bigger than a Hand at first, but had they not like to have over-spread both Kingdoms? When Richard the 3d heard that Henry the 7th. was Landed with 7000 Men, he slighted it; but when it was told him they were but 300, he put Foot in Stirrup, as too truly presaging, the Kingdom had invited him in. And what should the King have done in this case, thrown Himself upon those that would have Excluded Him, or trust them of whom He had had former assurance?

In short, it remains that I speak to His. Majestys yet continuing them in His Service: And truly (I conceive) the same Reason, and Law, will hold for both. For Insurrections, and Rebellions, Lord Bacon. being not written on Ice, that when the Body relenteth, the Im­pression should wear away, how can the King (who is Judge of the Expectant, as well as present dan­ger) deem Himself secure, while the Serpent, yet threatens with its Tail? God has signally prosper'd His Majestys Arms; but are His Enemies so much as willing, to be reclaim'd? They are beaten down that rose up against Him, but is He sure, they shall rise no more? The Winds are laid ('tis true) but has the Sea yet left rouling? Or if it has, what means this Unda vulgi? These new Murmurs, and Caballings of the People? Fire purgeth away Smoak and Ashes, as un­apt Matter to enflame; and Living Bodies Purge, and Expel, what they cannot Convert, and Assimulate in­to Food and Nourishment. And shall Kings only take into their Bosom what they can neither convert, nor alter? The Argument were everlasting, but I leave it; and from what I have said before, thus con­clude this Section, That His Majesty, in the granting Commissions, to Persons not qualify'd according to the said Act, having done nothing, but what is war­rantable by the Law of Reason, and the Laws of this Land, That the said Commissions are well granted, notwithstanding the said Act. And the same also, for the yet retaining them in His Service.

SECT. VI. That the Statute has created a Disability in the Person, and other Objections, an­swered.

TO judge ones self, is the way not to be judged; and to foresee known Objections, is the way to prevent them from others; wherein never­theless, not to give them their proper Answers, were but to lend a Candle to another, and leave my self in the dark.

I. Object. 1. The Statute has created an incapacity in the Person, not qualify'd, &c. by making him ipso facto disabled, to hold any Office, &c. and the Office void.— As the 31st El. c. 6. That makes every corrupt Presentation, Collation, &c. and every Admission, Institution, &c. there­upon, void: And the person so corruptly taking, or procuring, a disabled Person to have, or enjoy the same.—In like manner, the 5 Ed. 6. c. 16. That makes the buying and sel­ling Offices void, and the Buyer, a disabled Person to have, and occupy the same.—And the 3 El. c. 1. That every Mem­ber of Parliament, not taking the Oath of Supremacy, be­fore he enter the House, shall be deemed, as if he had been never elected, and returned: Which also is a part of the Test, And how will the present Cases differ, from the Disability in the present Case?

Answ. For answer to which, I take a difference between Mala in Se, such things as were meerly evil in themselves at Common Law, before any Statute, and therefore indispensible; and Mala prohibita, such as were not simply evil in themselves, but might have been lawfully done before they came to be prohibi­ted by some Statute, and so, may be dispenst with: 11 H. 7. f. 11. As in the present Case, That every Man not taking the Oaths, &c. by the said Act required, shall be disabled, to hold any Office, &c. which implies, that he was capable before that Prohibition, for, all Exceptions prove the Rule. That the King may par­don Treason, Murder, &c. is no Question, but that He might dispense with the practice of them, was never thought of, for such a permission, would be contrary to Original Justice, Moral Honesty, Com­mon Equity, Humanity, &c. not to be presum'd in a private Man, much less in a Prince, as being a breach of that Trust, God has repos'd in Him: Where­as Mala prohibita, being otherwise indifferent in them­selves, and only evil in respect of the Prohibition, when that Reason ceaseth, or becomes inconvenient, the Law also so far ceaseth, as that the King, whose interest is the common good of the whole, may, nay ought to dispense with it.

The six Articles in Henry the 8th's time, on which, so many promiscuously suffer'd, 31 H. 8. c. 14 did the King do well or ill, in not dispensing with that Statute? If He did well, why is it laid as a charge on Him? and if He did ill, it must be acknowledg'd, that He had the [Page 48]power of doing otherwise, in dispensing with it: For a Man cannot be said, to have done evill, but where it was in his power to have prevented that e­vil, and he did not. But to come to the particular Instances of Simony, &c.

Simony, it is vox Ecclesiastica, and tho' it first be­came Malum prohibitum, by the Canon Law, whereof the Judges of the Common Law could take no no­tice before the Statute; yet, that it was Malum in Se, long before either Common, or Canon Law, appears by the judgment of St. Peter against Simon Magus, Acts 8.20. who thought the Gift of the Holy Ghost might be obtained by Mony: And tho' Presentation, and the right of Patronage, be Temporal Matters, yet they are cal­led Spiritual, in respect of the thing, to which the Presentment is made, which is Spiritual; and conse­quently, every corrupt Presentation, is a dishonour to God, against the good of the Church, and an inju­ry to the Common-Wealth; and withal, so much the more odious, in that it is always accompany'd with Perjury; for the Presentee, at the time of his Insti­tution, takes an Oath, That he has made no Simoni­acal Contract, Payment, or Promise, directly, or in­directly, by himself, or any other, for the obtaining the same, &c. And therefore (nor without just rea­son) has the Statute provided so severely against it, in creating an indispensible disability in the person so offending.

Then for the buying of Offices: Not to put the Question what it was before the Statute, or how pu­nishable; [Page 49]yet this I may venture to say, That (be­sides that, it is a bar to industry and Merit, and makes it as impossible for deprest vertue to rise, as to draw a Cable thro' the Eye of a Needle) it opens a way to the perverting of Justice, or at least, begets an Ob­struction in the Administration; for it is not to be ex­pected, but that he that buys the Devil, will again try, how the Market goes with him.— Jure potest, emerat ille prius. And therefore, to keep the Eyes of the Wise open, and the Actions of the Just, from be­ing Perverted, it was as necessary in this matter, as the former, that the Statute should create such an In­dispensible Disability.

However admitting (not granting) it to be no evil in its self, it receives this further Answer, That the Vendee, being disabled by the Contract to take, the Office can never be legally vested in him, after such disability accrewed, and consequently, the King can­not remove it; which is not the present case, as I shall come to shew presently.

Lastly, for what concerns the not taking the Oath of Supremacy; no Man (I presume) will say, that it was an offence before the Statute; for though the not acknowledging the King to be Supream in His Do­minions, was an offence at Common Law, and be­fore any Statute, because every Man being bound to the King, by reason of the Protection he receiv'd from Him, the Law of Nature oblig'd him to ac­knowledge it, and return it in service (whence the Kingdom was call'd,) The King's Ligeance—The [Page 50]King, 27 E. 3 c. 1. 10.11. R 2. c. 1. 25 H. 8. c. 3. & 34, 35. c. 1. Liege-Lord. —And the People, His Liege-men) Yet the not testifying, and declaring it by the forma­lity of an Oath, could not be said to be an Offence, before there was some express Law to exact such an Oath; for, Ubi nulla Lex, ibi nullum peccatum. But now that the Statute has required an Oath, and that no Member, &c. not having first taken it, enter the House, under the Penalty of being deem'd, as if he had been never elected, and return'd; as on the one hand (and if nothing intervene) it is become neces­sary, to preserve that Election, &c. So on the other, it is but a Penal Law, and consequently, the King be­fore any such Member shall come to sit in the House, may grant him Dispensation for not taking the said Oath, and thereby prevent any disability from ac­crewing, which once accrewed, could not have been remov'd.

Now the difference between these Cases, and that of an Officer, &c. upon this Statute, lies here.

The First, was Malum in Se, and so indispen­sible.

The Second, Carries an impossibility; for the Of­fice being void by the Contract, a Subsequent Dis­pensation, can have nothing to work upon.

But the Last, and that of an Officer, &c. will ve­ry well agree; for if either of them, by his own neg­lect, or refusal, shall have incapacited himself, be­fore he shall have obtained, the King's Dispensation, the disability is fix't, beyond the possibility of remo­ving it; but the Dispensation coming before the [Page 51]Disability accrewed, it is prevented.

And how reasonable it is that the King have this full power in Him will further appear, by bringing the Matter to a more familiar English. Says the Sta­tute you shall do every thing hereby required, or hold no Office.—Says the Person not so doing, I was born to obey, and serve the King; but the Cir­cumstances are hard upon me: The Statute is in the disjunctive; I'll take the easier part of it, and quit my employ.—But says the King, he is my Sub­ject, and I have use of his Service, which is due to me by the Law of Nature: Shall the King here, suf­fer an inroad upon the Law of Nature, which is in­dispensible, or make use of His Royal Authority, in dispensing with this Statute, when without that Dis­pensation, that Service were lost? I conceive He may: For the Statute its self, shall have some reason­able entendment to the Maker thereof. And shall any Man believe, it was the King's intention, when He past this Act, to exclude Himself from the power of judging, what were convenient, or inconvenient for the Government? And of what use were that judgment, if he saw an inconvenience, and could not step over it? I do not say, the King may abso­lutely discharge the said Oaths; but if for Reasons best known to Himself, He think fit to dispense with them, what is that to us, who have no Authority to exa­mine it? Take away Knowledge to discern, Judg­ment to weigh, and Resolution to determine, and what will ye make of a Prince? His Majesty foresaw [Page 52]a Storm coming, lay close for it, and wrought it thro' with Resolution: A Hand or two, might be enough at Helm, but it required many, to work the Ship: And whom in such a case, would a Skipper chuse? Such as had stuck to him in former Storms, or such as had been for throwing him over-board, in a Calm? They might have been as handy perhaps, or better qualify'd, but the Ship was in danger, and what talk we of Formalities?

2. Object. But the King had other hands: A Loyal City, a trusty Militia, &c.

Answ. But is he bound to make use of them in ex­traordinary Cases? Has not that City grown too fast? May the King yet March thro' London without leave? Or take up Monys upon his Revenue, with­out License? I begin now, to be of opinion, he may, and withal hope, it shall long continue so. Then for the Militia: To give them their due, they were generally up, on the late Western occasion; but of no great use; what good did their numbers against William the Conquerour's form'd Army? Or what's the reason the Crown of England, has so often follow'd the Fortune of a single Battle? But that it has been fought, by an Uncommanded Multitude, who know­ing nothing, but their own Inclinations, believe God is departed from the beaten side, and consequently deem it a sin to tempt Providence with a Second. I will not say, but they may be made more serviceable; however, till that be, what hurt if the King make use of such as are? In short, as the Subject has his Li­berty, [Page 53]by the same Laws also, has the King his, i. e. His Prerogative: Nay, to imagine the contrary, were a Condradiction in Terminis: And what better were that Prerogative, if restrain'd, in the legal use, than a Long-wing'd Hawk, but ty'd to Fist? Shall a Man do nothing without consulting his Wife? Or must the King call a Parliament upon every Emergency? I think not: For, Omnis Rex Angliae, est solus Rex, Stam. pl. cor. 99. & semper Rex, and there are many things he may do of himself, without Parliament.

The power of Peace, and War, is, 9 E. 4.4. and was the King's, at Common Law; and our later Acts of Par­liament, are but declaratory of that Ancient Law. —He may charge the Subject for defence of the Kingdom, without Parliament: 13 E. 4.14. And the same did Queen Eliz. in 1588.—Grant a Toll, upon the erecti­on of a new Fair—Market—Bridge—Ferry—Grant Pontage—Murage—Paveage, Rolls Abridg. 2d. part. 171. &c. As there are many ancient Instances of it, in the 3d. 7th. and 32d. of Edw. the 1st. It may be said ('tis true) the Sub­ject here, has a Quid, pro Quo; but what Quid pro Quo is it, That the King grants to one, or more Subjects, to have more priviledge, than others?—That he Erects Cities—Corporations—Gylds?—Founds Bishopricks—Colleges—Hospitals? Grants Privi­ledge to make By-Laws—Hold Courts—send Bur­gesses to Parliament? (no Positive Law, that I remember, stints the number to two: Wales, for the most part, send but one, and London four.) Is not all this by His Royal Charter? And what is it that ena­bles [Page 54]Him to that, but His Prerogative, which is the antientest part of the Law of the Land, and conse­quently, the most Principal?

Nor is this all: The King by His Writ may Ordain alone. 9 E. 3.16. A Writ of Cessavit was brought against the Tenants of Northumberland: They Petition the King, and shew, that they had been so harrast, by Incursi­ons of the Scots, that they could not pay their Rents: The King by His Writ, Ordain'd a stay of Sute.—The King (before the convenience of Colleges) grants to the Scholars of Oxford, 49 E. 3.18. That they should have the choice of Inns there: This is my Free-hold, says the Towns-Man, and the King cannot do it: But it is the King's Patent said the Judges, and in fa­vour of Learning, and therefore, a good Ordinance. Much more to which purpose, may be had in the Case of Ship-Mony, where (because the Arguments are hard to be got by themselves) they may be found in the Annals of King Charles the First.

3. Object. But was not the Judgment for the King in that Case, afterwards vacated in Parliament?

Answ. That it was so, de facto, is true: But that the Arguments of Sir Robert Holborn, and Mr. St. Johns (who argu'd it against the King) and of the Judges, Hutton, and Crooke (who had first under-written for the King, and afterwards gave their Opinions, against what they had so under-written) were by that Parlia­ment held for Law, is also as true: And therefore if I have taken any of their Concessions, to prove my point for the King (as— Eas est & ab hoste doceri) [Page 55]I know not, why it may not be the same Law now. And for the rest of the Judges, (that gave their Opi­nions for the King, according to what they had first underwritten) they were accounted, Men Eminent in their time; and if the Lord Chief Justice Finch (a Gentleman, in whom Art, and Nature concurr'd, to make him Eloquent, and a long experience, dexte­rous; and who had been speaker of the Parliament of 3d. Car. 1. at what time the Petition of Right past) may be credited, Those first Opinions, were so deli­vered to His Majesty, that no one Judge, knew the Opinion of the rest, or the reason, that induc'd His Majesty to demand it.

And now that I am upon this Matter, it is but a Ju­stice due to that King's Memory, that I open the Hi­story of it.

The Cards had long shuffling for some plausible Trump, whereby to engage the People into a Rebel­lion: None more luckily turn'd up, wherein their Properties, seem'd to be concern'd, than this of Mr. Hambden, where the Case lay thus.

The Dutch in the 9th. Car. 1. 1634. had set up the Northern Herring-fishing, on our Sea: Grotius had put out, three or four sheets of Paper, which he calls, Mare Liberum: Mr. Selden learnedly encoun­ter'd him, and as fully answer'd it, in his Mare Clau­sum; by shewing, That before the Romans had ever to do in Britain; during their time; and ever since, the Dominion of the Narrow Seas was the Ancient, undoubted Right of the Crown of England: Pens [Page 56]were too weak to decide the Matter: Mr. Noy, finds Precedents of Naval-aids, by sole Authority of the King: Some few of the Commons except against it, as being out of Parliament, and against the Petition of Right: The first Writ is directed to the Major, &c. of London, to equip seven Ships of War, by a day cer­tain, sufficiently provided (at their own Charges) of all things necessary, for 26 Weeks: From thence, Writs are sent into the inland Counties: Most pay their proportion, which in the whole amounted to but 20000 per Mens. thro' England: Mr. Hambden (of the County of Bucks, and whose share, was but 20 s.) makes default: The King ( an. Reg. 12.) Writes to the Judges, and demands their Opinion in Writing, Whither, when the good, or safety of the Kingdom in general is concern'd, the King may not by Writ under the Great Seal, command all His Subjects of this Kingdom, to furnish a certain number of Ships, and Men, for such time, as the King shall think fit, and by Law compel the doing it, in case of refusal? And whither in such a case, He is not the sole Judge, both of the danger of the Kingdom, and when, and how, the same is to be prevented, and avoided? To this, every one of the 12 Judges did subscribe in the Affirmative: Thereupon, process is issu'd out of the Exchequer against Hambden: He demurs upon the Legality of the Writ: It is argu'd by all the Judges: The Majority of them, give their Opinions for the Writs; on which the Barons gave Judgment; which Judgment was in the 16th. of the said King, 27 Feb. 1640. vacated in Parliament.

But (with due honour to all other Parliaments) what Parliament was it? It was begun in that House of Commons, that afterward Murder'd that King: And tho' the Vacatur was per Considerationem, & Judici­um, Dominorum Spiritualium & Temporalium in Curia Par­liamenti, &c. Yet as to the Lords Spiritual, this may be said, That a leading Man among them, then was, and from the time the Seal had been taken from him, had been also, a Discontent, nor was it hard to perswade Persons interested, that the Clergy were not liable to Secular Charges (whereas, aid in War—building of Bridges—and raising Forts, is that Trinoda necessitas, that binds the Clergy as well as the Laity.) And what got they by it, but that as it open'd a Gap, to several Acts, that past afterwards, so the King being lessen'd in His Authority, was unable to defend them from a worse Vacatur, which was put upon themselves, 17 Car. 1. c. 22. with­in one full year after it? And for the Lords Tempo­ral, (such, or most of them, I mean, as follow'd not His Majesty to Oxford) they joyn'd with those Commons in making Ordinances, to raise Monies, and Arms, for the carrying on of that Rebellion which afterwards (inaudito Regibus exemplo) brought Him to the Block; and their Priviledge of Peerage, with Him. In short, the matter is beyond excuse; if they would not have had the Clock gone, they might have chosen, not to have wound it up, or taken off the Weights: For tho' that Vacatur of the House of Lords upon the Judgment in the Exchequer, was confirm'd by an Act of Parliament, what was gotten by that [Page 58]20 s. which cost the Kingdom more Treasure, than it was at any one time worth, to have been sold, and more Blood, than would have Conquer'd another?

Nor was it more than necessary, to have said so much touching that Parliament, with whom the King was virtually, tho' not formally under a Force: For as preparatory to what ensu'd, they first got an Act of Parliament, that they should not be Dissolv'd, or Prorogu'd, but by Act of Parliament: And having gotten this Footing, in the same Runn, they procur'd others, for taking off, The several Courts of the Star-Chamber—Presidencies of Wales, See the Acts of the 17. Car. 1. and the North—Dutchy of Lancaster—Exchequer of the Palatinate of Chester—High-Commission—And now to throw a Personal disrepute upon His Majesty, they bring in that Bill against Ship-mony, as having pre­necessitated Him not to deny any thing—And having in the same heat, got the Stannaries, and the Statute 1 E. 2. de Militibus, taken off, and the Bishops out of the House of Lords, the very next Act that past, was the impressing Souldiers for Ireland—And what did they do with them? See the King's Answer to their Irish Papers. But (having driven the King from Whitehall, by Tumults) fought Him at Edge-Hill, with those individual Forces. Thus, inch by inch, fell that goodly Oak of the British Forest; His Roots, and Binders were cut off, and what wonder if His own weight brought Him down? Or that the People were so intent, on gathering the Sticks, that they wanted leisure, to heed what was done?

And now to close this Section: If Authority with­out Power, be but what Lucan says of Pompey—Magni nominis umbra (as without further proof, was verify'd in him,) That Government certainly, must be an imaginary nothing, or at best, but painted wings, that has not the power of preserving its self, as the Emergency, or Exigence of Affairs requires: Nor is it ever likely to be long liv'd, where it wants the Resolution, to make it self obey'd. It is said of Saul, that he feared the people: 1 Sam. 15.24. But it lost him the Kingdom. And how probably can it be otherwise, when the People, shall be more at Liberty, than the Soveraign? Shall they stop at nothing for Subverting the Government, and is it reasonable, the King be abridg'd, for the saving it? What hurt is it that Caesar, have the things that are Caesar's, especially, when the profit, and advantage is the Peoples? The contrary (I am sure) has ever embroyl'd us, and he that goes no further, than our own Histories, will find, That the more our Kings have been bound, the more have they shaken off those Fetters; and the more it has been endeavour'd, to restrain their Rights, the more have they ever, exerted their Authority.

In a word, we have the Interest of a King for our Defence, and the Word of a King for our Security: and if an Act of Parliament cannot bar the King of any thing that is due to Him of Common right, how much better were it, to believe Him to be what we would have Him, and make him so; than by disput­ing the dividing Mathematical points, and engaging [Page 60]our selves in impracticable Notions, catch at Shadows, and lose the Substance? The Camel (in the Fable) might have kept his Ears, if he could have been con­tented without Horns.

SECT. VII. The Sum of the whole further asserted, and confirm'd, from several Statutes, and other Authorities of the Common-Law, &c.

I Have already prov'd the necessity of this Supream Power—That it is innate, and inherent in the Person of an absolute Monarch.—What that is. —That the Kings of England are such.—And spoken at large, to their power of Dispensing.—It remains now, that for a close of the whole, I further shew,

I. That there are divers things so incident in pow­er to the King, that it is not in the power of a Parlia­ment to take them away.

II. That both Kings and Parliaments have been e­ver tender of having them encroach't on, as may ap­pear by the Savings, in several Statutes.

III. That the Power of Dispensing, and granting Non Obstantes to Penal Statutes, is one of those In­cidents, and that inseparable.

IV. That Statutes derogatory to the Prerogative, have some of them been held for void, others recall'd, by the King alone.

V. Examples of Personal Disabilities, some, crea­ted by Parliament: others, by Ecclesiastical Canons, dispenst with by the King; others, void of them­selves.

VI. The King cannot devest Himself, or restrain His Successor, of any regal Right, that is essentially in the Crown. These are my Materials for covering the House; I shall proceed to finish it.

1. And that there are many things so incident in power, to the King, that it is not in the power of a Parliament to take them away, Judge Hutton (of whom before) agrees it, with the rest of the Judges, and Instances in the Case of Henry the 7th; Annal Char. 1. f. 592.593. and that a Parliament could not dispose the Right of the Crown. —The Power of making Wars, and Leagues (which also was agreed by Judge Crooke)—The Power of Coin, and its value.—The sole Power of Calling, Ibid. 582. Proroguing, and Dissolving Parliaments.—And that no Law can be made without His consent.—And ma­ny other Monarchical Powers, and Prerogatives, which (saith he) to be taken away, were against Natural Reason; and further calls them, Incidents so insepa­rable, that a Parliament cannot take them away.—For (in another place) they belong to His Crown, as Head, and Protector.—And again (both of them) An Act of Parliament, That the King should have no aid of His Subjects, would not bind, because it would [Page 62]be against Natural Reason: Which was but a Confir­mation of what Judge Crawley, and others the Judges, had delivered in the same Case.—And further (says the said Judge Crawley) you cannot have a King without Regal Rights, no not by Act of Parliament: And what are these Regal Rights, but the Kings Pre­rogative, which contains in its self Matter of Pre­scription, Plowd. 332. and is consequently, as inseparable Inci­dent?

2. Both Kings, and Parliaments, have been ever tender, of having them encroacht on, as may appear by the Savings, in several Acts of Parliament. The St. Praerogativa Regis, 3 E. 1. closes thus, The King would not, that at any other time, His Concessions thereby made, should turn in prejudice, to Him, or His Crown; but that such Rights, as appertain to Him, should be saved in all points.—So; the King will not draw any Aid, 25 E. 3. c. 5. or Prize into Custom, but by the com­mon Assent of all the Realm: Saving the antient Aids, and Prizes, due and accustomed—So; no Imposition shall be set upon Wooll, 11 R. 2. c. 9. Leather, &c. other than as granted by Parliament; and if any be, to be nulled: Saving to the King His antient Right. —So; 1 H. 4. c. 6. the King is content to be concluded, by the Wise Men of His Realm, touching the Estate of Him, and His Realm: Saving always His Liberty, i.e. His Prerogative. Now what's the meaning of those Sa­vings? But that those Parliaments considering, there might in after time, some new Accidents happen, which could not be then foreseen, they bethought [Page 63]themselves of no better way of securing against them, than by leaving 'em, to the King's Discretion: And therefore, when it is said, The King will not do, but so, or so, what other can it be, but that the King will not ordinarily do otherwise? And that it was not the Parliaments intent, but that in Cases ex­traordinary, He should make use of His antient Right. And what antienter Right, than the Service of the Subject, for defence of the Kingdom? Nor is it to be thought, but when the Law assigns the King the defence of the Kingdom, it presumes Him also, the power, to raise the means for the doing it: Or else, it were but the charge of a defence, without the pow­er, and means: And if the King could not do this out of Parliament, then were the Parliament the sole Judge, and not the King, which also were contra­dictory to the free Majestick Power of a Monarch.

And if this be not enough, there is yet another Statute, that makes it clear: For when it says, no Man shall be compell'd out of his Shire, 1 E. 3. c. 5. but when necessity requires, and then, shall be done as in times past: How is that? If the King before that Statute could not have don't, that (But) had been to no pur­pose; and if the King before that, could have don it (as I have shewn what was the constant practice, of His Father's, and Grand-father's times) it is a plain Confession of that Right, and a modest entreaty, that He will not ordinarily make use of that discretionary power, but as Necessity requires.

Other while again we have it by Implication, where such Savings have been omitted. As when the Peti­tion of Right was in agitation, 3 Car. 1. the Commons, to take off all doubt of encroaching on the King's Rights, made this Protestation, That it was not their intention thereby, to bind the King, from His ancient Right; which the King also, on His passing that Bill, takes particular notice of; however it comes to be left out in the last Edition of the Statutes at large; as that Clause, saving the King's Regality, in the Statute 2 R. 2. St. 2. c. 4. for Confirmation of Liberties, is omitted in all of them. Nor was this Protestation made without Reason; for it had been long before declar'd, 42 E. 3. 4 Inst. 14. & 357. that they could not consent to any thing in Parliament, that tended to the disinherison, of the King, or His Crown, to which they were Sworn.— It was, 18 E. 3. c. 4. and is, a part of the Judges Oath.—And of the Coronation Oath, That He shall keep all the Ho­nours, and Dignities of the Crown, Cowel. Tit. Oath. in all manner whole, without minishment; and the Rights of the Crown hurt, decayed, or lost, to His Power, shall call again into the antient Estate: From which it is undeniable, but that the King has antient Rights; and being so, it necessarily follows, That they cannot be taken away, till prov'd to be forfeited: And if for­feited, who shall sit in Judgment on it, when the King having no Peer in His Realm, 3 E. 3.19. cannot be judged Him­self; nor by His own Authority; and other, there is none in His Realm.

3. The Power of Dispensing, or granting Non Ob­stantes to Penal Statutes, is one of those antient Rights. Sir Robert Holburn (of whom also before) confesses it. The King (saith he) may dispense with Penal Laws, and make them as none: Ibid Ann. 552. For there is a neces­sity that this Power should be in some Body: No Law says the King, shall not do it; and Acts of Parliament, are but Leges temporis. Book of Law. 82. —The King (saith Sir Henry Finch) hath an absolute power over all; for by a Non Obstante, he may dispense with a Statute Law, tho' the Statute say, such Dispensation shall be meerly void.—And Judge Barkely, to the same purpose: A Penal Law is made, and a Clause in it, Ibid. Ann. 57 [...] that the King shall not dispense with it: A Non Obstante may be made to that Non Obstante, for it taketh away a ne­cessary Power out of the Kings Hands—whose Person, Ibid. Ann. 59 [...] and Royal Prerogative cannot be restrain'd (saith Judge Jones) no, not by Act of Parliament.—And if there yet remain'd a doubt, Sir Edw. Coke will pass for Authority (when speaking of some Statutes, that had restrain'd the King's Power of granting Par­dons) his words are these; 3 Inst. 236. But it hath been conceived (which we will not question) That the King may Dispense with these Laws by a Non Obstante, be it ge­neral, or special. Now in as much as this power is not in the People, or deriv'd from them, it follows (as before) that it be Original, Innate, and inherent in the Person of the King, Inter jura summae Majesta­tis, and consequently, inseparable.

4. Statutes derogatory to the Prerogative, have, some of them been held for void; others, recall'd. An Act of Parliament (saith Sir J. Banks) extends not to take away any, Ibid. Ann. 569. thing that belongs to the Crown of Common Right; for it is (Lexterrae) the Law of the Land. The Liberties of the Subject, are by process of time, become of Common Right, an Act of Parlia­ment against which, 8 Coke 118. were void: And can the Kings Prerogative, from which those Liberties were at first deriv'd, be of less right? Of less force in Law? When it is said, Rot. Parl. 17. [...]. 3. N. 13. An Act of Parliament contrary to the Fundamental Laws, and Prerogative of the King, shall lose the Name of a Statute.—It binds not the King (saith Judge Vernon) and if it doth not bind, [...]id. Ann. 581. what is it but void? And his Reason is, because it is Derogatory to the Prerogative.—For (as Judge Jones) The Power of the King is a Special Preroga­tive, [...]id. Ann. 592. and if good at Common Law, takes away the Statute, Ibid. Ann. 598. pro bono publico.—And (the Lord Chief Ba­ron Davenport) it would be Felo de se, and so void, because it would destroy the Jus Regale.

And that the King may revoke such a Derogatory Statute, [...] prerog. 180. we have the Authority of Serjeant Rolle. And that it is no new thing, there are several Instances.—King John by Charter (which, says Gascoign [...], is no Statute, [...] E. 4.19 nor was it ever taken for such, but where it concurs with Magna Charta) grants, That ( Nullum Scutagium, vel Auxilium, &c.) No Tenant by Knights Service, shall be compelled to make a Voyage, to War against the French, or Scots; or aid be taken, [Page 67]without common consent; but to make his Eldest Son a Knight: Marry his Eldest Daughter: And re­deem his Person. But when was this granted? Was it not at Running-Mead, An. Reg. 17. at what time there were Banners display'd, and the Barons and Commonalty in open Rebellion against him? An odd Modus te­nendi Parliamentum. And shall it be said, an enforc't Act, from a distrest King, shall bind the Crown? Or, shall the Subject only plead Duritiam, & Minas? It is somewhat yet, that it has had no Confirmation, in so many Parliaments since; and what difference (in substance) whither the Candle be put out, or go out of its self, but that it leaves a Stench behind it?—However, the next is in point.

Some things derogatory to the Crown had been enacted, in Edw. the 3d's time: As, 15 E. 3. As, that no Peer should be question'd, but in Parliament.—No Great Officer remov'd, but in Parliament.—No Clergy-Man, come before Temporal Judges, &c. The King the same year, on better advice, revokes, and Nulls them: as contrary to the Laws of the Realm; drawn from Him against His Will; and prejudicial, to the Prero­gative of His Crown. 4 Inst. 52 But (says Sir Edw. Coke) the Printed Book supposes, there was another Parliament, in the said 15. E. 3. Whereas in Truth, the Parlia­ment that repeal'd them, was in Quind. Pas. 17. E. 3. In answer to which, it shall be enough to me, that he owns, these Acts were made, the said 15. E. 3. as in Fact they were, and that the Parliament of that year, made no Repeal of them, which also is as true; and [Page 68]I hold with him: But with this; That it was a single Act of the King's, and out of Parliament; for the King, the same 15th. year considering, how in a man­ner, He had disrob'd Himself of His Authority, by His Writ, or Royal Mandate, to the respective She­riffs (which carries not the Stile of an Act of Parlia­ment, or any the other the Acts of His time) Wills, and Commands them, that for the Reasons aforesaid, they proclaim those Acts, Null: As may be seen in the Printed Statutes (in a particular Writ, to the She­riff of Lincoln) and a wonder it is, this also, had not been left out among the rest. But now to come up with him: The Contrivers of these Acts (for it ap­pears by them, that the Grandees only, not the Com­mons, were concern'd in them) saw the King had as­serted His Prerogative, and wanted not Resolution of going thro' with it; and knowing, themselves were to be the same Persons in the next Parliament, thought it high-time, to comply with the present; and since the King would not come down to them, to come up to Him, and by making it their own Act, stifle such a signal precedent for the Prerogative: And therefore, in the 17th. of the said King (which Sir Edw. Coke mentions) those Acts were repealed in Parliament, and further declared, That they should lose the Name of Statutes, as being contrary to the Laws, and Pre­rogative. Which (with all due Submission) I leave to every Man's Examination; yet withal think, that he that reported Calvin's Case, might have forborn this, or done it more Candidly.—But the Parlia­ment [Page 69]of the 15th. of His Father, took better Measures; there had been Ordinances in the 5th. Edw. 2d. That the King could not make War, without the assent of His Barons: The Parliament saw the King resolv'd to have them off, and they generously prevented Him, by a Repeal of their own, as prejudicial, Rot. Parl. 15. E. 2. M. 31. to the Roy­al Power of a King.

5. Examples of Personal Disabilities, some crea­ted by Parliament: Others, by Ecclesiastical Canons, dispenst with by the King: Others, void in them­selves: Wherein also, I do but further confirm, what I have before laid down, and from the practice of past times, make a reasonable Interpretation of the present. The St. 4 H. 4. c. 31. says no Welsh-man shall be Justice, or other Officer, in any part of Wales: Yet the King may dispense with it.—So the 8 R. 2. c. 2. says, no Man of Law shall be Justice of Assize, 12 Coke 18. or Gaol-Delivery in his own Country, i. e. in the County where he was Born, or doth Inhabit (for so the 33. H. 8. c. 24. explains it.) under the Penalty of an 100 l. And yet the King's dispensing with it, has been, and is every days practice.—And if it were not for the King's License, for Importing, and Expor­ting, several Commodities, prohibited by Statute, Informers, and their Auxiliaries, (Knights of the Post) might live well enough, without the Sweat of their Consciences But admitting these may not come up (as I see not where they fall short) The 13. H. 6. c. 8. is in point. No Sheriff (says that Statute) shall continue in his Office above one year, under the Pe­nalty [Page 70]of 200 l. and every Patent to that purpose, to be void, notwithstanding the Clause of Non Obstante: And the person, for ever after disabled, to bear the Office of Sheriff. And yet Edw. the 4th, made a Sheriff for life, cum clausula Non Obstante to that Sta­tute, and adjudged good, 2 H. 7.6. by all the Justices.—Nor seems the Case of the Lord De la Ware, to be al­together wide of the matter. William West, Nephew, and Heir, of Tho. Lord De la Ware, had been disabled by Act of Parliament, 3 E. 6. to claim any Lands, Digni­ties, &c. from his said Unkle, for his natural Life only: 8 Eliz. Thomas dies: The Queen restores William: And by new Creation, to the same Title, calls him to Parliament, where he had place as puny Baron, and dies: 11 Coke 1. Now the Case, as it is reported by Sir Ed. Coke, relates only to this, whither the new Lord De la Ware, should take his place to the antient Barony, by Writ, or according to his Father's Creation, by Patent? and resolv'd, he should have it according to the antient Barony, which at the time of the new Creation, was only Suspended. But I make this other use of it, That an Act of Parliament in one King's Reign, barr'd not the Successor, of the Service of that Subject, because it was due, by a Title paramount the disability, viz. The Law of Nature: Here was a manifest disability, created by Parliament, in the Person of William, and the intent of the Act was, he should not serve in Par­liament, as Lord De la Ware: The Queen finds she had use of his Service, as Lord De la Ware, and by new Creation, enables him to perform it: So then, [Page 71]whither he sate in Parliament by vertue of the old Dignity, or new Creation, it matters not: He sate in Parliament: The disability was remov'd, and the Queen had his Service.

And besides this, there are other Matters, contrary to the usage of the Realm, and Ecclesiastical Canons, in force among our selves, that have been dispenst with by our Kings, and that, out of Parliament. The Clergy, by that usage, and their own Canons, are disabled to bear Secular Offices, 2 Inst. 121. and the doing other­wise, has been complain'd of in Parliament (45 E. 3.) yet our Kings have frequently dispenst with them in it, and made them Chancellors, Treasurers, &c. both before, and since the Reformation; and he scandals the Authority of both, that will allow nei­ther.—On the other hand, Cromwell in Henry 8th's time, was Merè Laicus, yet the King made him His Vicegerent in Ecclesiasticis, however otherwise inca­pacitated, by the same usage, and Canons.

And that there have been several Personal Disabi­lities, created by Parliament, yet void in themselves, we have the several Examples of Edw. the 4th. (who in the Blood of His Father Richard Duke of York) was disabled from claiming the Crown.— Henry the 6th, to reassume it.— Henry the 7th. attainted by Parlia­ment.—Queen Mary, and Queen Elizabeth respe­ctively Excluded by the same Authority.—And yet, the accession of the Crown, clear'd those Disabilities, without a Repeal; and what better could there have been dream't, from the late Bill of Exclusion?

6. Lastly, (and to close all) The King cannot devest Himself, or restrain His Successor, of any re­gal Right, that is essentially in the Crown, i.e. really annext to His Person, as King: Because it would be in prejudice of the Crown, in making Him less King, than He ought to be. Nor are any of the King's Grants, or Concessions, to be understood otherwise, than Salvo Jure Coronae: For by the same Reason, that any one part may be separated, may also more; and so from one thing to another, even all at last, and very well if it holds a Dukedom of Venice. Whereas, Quae Jurisdictionis, Bract. l. 2. c. 24. & Pacis sunt, ad nullum pertinent, nisi ad Coronam, & dignitatem Regiam, nec à Coronâ Seperari possunt, cùm faciant ipsam Coronam. Such things (saith he) as concern the Supream Authority, and Peace of the Kingdom, belong to none, but the Crown, and Royal Dignity, nor can they be separated from the Crown, in as much as they are the very things that make it a Crown. This Bracton, was a Judge in Hen. the 2d's time, during the heat of the Barons Wars; and what he means by those Words, but that the Crown were nothing without that Supream Au­thority, and the power of executing it, were worth his explaining, that would draw any other sense from them: And if he shall not, it is but reasonable that he confess, That the Crown is, and ought to be preserv'd entire; and as it will not admit of any false Metal to embase it, will less endure any Clogs to en­cumber it. I speak not of Popular, or Consular States, or what may have been practis'd in them: [Page 73]Or Elective Kingdoms, where tho One may bear the Title, and Honour of a Prince, He has not Merum Imperium, the Supream Power of an Absolute Rega­lity, but is Himself subject to that Power, which is transcendent to His, and appertaineth to the State. But of the King of England, over whom the States have no power, in as much as all Power, and Autho­rity is deriv'd from Him— de Lumine Lumen; but (as before) Salvo Jure Coronae: For the Royal Dignity is indivisible, and every Subject owes Him Liege Ho­mage, De vita, membro & terreno honore, for Life, Mem­ber, and Earthly Honour; nor can any Earthly Power discharge him of it.

William the Conqueror created Hugh Lupus (his Ne­phew) Hereditary Earl of Chester, and gave him the County in Fee, Ita Liberè ad gladium, 4 Inst. 211. ut ipse Rex tenebat Angliam, ad Coronam: To hold it as free by his Sword, as Himself-held England, by his Crown; Yet this ex­empted him not from remaining a Subject.—So, a Grant to the Abbot of St. Bartholomew, 14 H. 7.11. to be as free in his Lands, as the King in His Crown: Yet he was still a Subject, and shall pay a fine.—But these (may be said) were the single Acts of a King, and out of Par­liament: We'll see now, what a Parliament could do. Richard the 2d. by His Letters Patents cre­ated Robert de Vere (Earl of Lincoln, and Marquess of Dublin) to be Duke of Ireland, and grants to him for life, Totam terram, & Dominium Hiberniae—Portus Maris, &c. The whole Land and Dominion of Ireland—The Sea Ports—The Patronage of all Bishopricks—To ap­point [Page 74]a Chancellor, Treasurer, &c. and all other Re­galities within that Kingdom, as fully, as Himself, or any of His Progenitors, ever had them: And these Let­ters Patents, 9 R. 2. were authoriz'd by Parliament, Assensu Praelatorum, Ducum, Procerum, & Communitatis Angliae in Parliamento: 4 Inst. 357. But what became of it? They were Inse­parable Regalities, and it fell to nothing.—So 4 years after, the King by the same Authority, gave the Title of Duke of Acquitaine, to His Unkle John of Gaunt; and that also, came to nothing: For that was one of the Titles, and Stiles of the Crown, and could not be granted. All which may be resolv'd into this, That a Kingdom without full Regalities, is but the burthen of a Night-Mare; Men think they have something, when in Truth it is nothing, but an un­weildy weight.

And as the Crown it self is entire, so also ought the Descent to be as entire. The same Rich. the 2d, devis'd certain Treasure to His Successors, upon condition to observe all the Acts, &c. at a Parliament held the 21. of His Reign: 4 Inst. 42. and it was held unjust, and unlawful, because it restrain'd the Liberty of the Kings His Suc­cessors. —And on the same ground is it, that the King cannot grant a judicial Office, 1 R. 3.4. so as it shall not be void, against His Successor.—Nor priviledge of Sanctuary for Treason, 1 H. 7.26. to bind His Successor.—And the Cessavit before mentioned, was good during the King's Life, but not against His Successor: Nor was it so much the Death of the King that vacated them, as that the pow­er of granting them, being an inseparable Incident of [Page 75]the Crown, that also descended to the Successor, to­gether with the Crown.

To bring this home, King Charles the 2d. made this Act: He had the Entierty of the Crown in Him, and might have as well dispenst with it, as Queen Eliz. did with Hers, of the 1st. of Her Reign, for the Com­mon Prayer in the English Tongue. And if the same Crown, be now descended to His Majesty, why may not He rather dispense with this Statute, as being an Act of His Brother's, not His own? Or if otherwise, how is it the Crown of England? Suppose King Charles 2d. had given up His Crown (as once in His Reign, there wanted very little of the asking it) would it have bound this King? I conceive not. Daniel 's Hist. of Engl. f. 120. Ibid. 138. Rich. 1st. re­sign'd it to the Emperor.—King John (what in him lay) subjected it.— Hen. the 3d granted to Monfort, and his Complices, all His Regal Power, Ibid. 177. and absolv'd His Subjects of their Obedience (ac si in nullo nobis teneren­tur) if He infring'd the Charter, then made them.— Rich. 2d. gave it up.—And Ed. 6. did what He could, to have turn'd it out of the right Channel.—But what became of all? The first, and the third, broke thro' it in their own time, and the right Heirs of the others, found it no bar to them, and all the Regalities of the Crown, came back with it, as being impossible, it could subsist without them.

In short, the same weight, requires the same Shoul­ders: Nor will it be said of Monarchy, as of the Sea, what it loses in one place, it gains in another: No, That only can wrestle a Fall with Time, that keeps it self [Page 76]entire, in all its parts: For the first diminution, is but a step to dissolution; as may be seen in Buildings, take off any considerable Pillar, and the Fabric leans: There may ('tis true) be a kind of Majesty, yet re­maining in mighty Ruines; but Men rarely come near them, for fear of being involv'd in them. In a word, we have a memorable instance of this in our late Mur­der'd Sovereign, King Char. I. He had made more Con­cessions, than might have been thought possible to have been askt (but that nothing was impossible for the Men of that time to attempt) but when they came to touch that Quick of His Regalities, He chose ra­ther, to trust Providence with His Kingdoms, than save His Life, and them, with the acceptance of an embas'd Crown, or stain His Memory, with a Prece­dent so inglorious. Nor can I quit the Argument with a greater authority.

And therefore to conclude this first part, and for the Reasons aforesaid, I conceive, His Majesty may well dispense with Penal Statutes; and more particularly, with this Statute.