THE LORD CHIEF JUSTICE Herbert's ACCOUNT EXAMINED.  
By W. A. Barrister at Law.  
Wherein it is shown, That those Authorities in Law, whereby he would excuse his Judgement in Sir Edward Hales his Case, are very unfairly cited, and as ill applied.  
Vendidit hic auro patriam, Dominumque potentem  
Imposuit, leges fixit pretio, atque refixit.  
LONDON, Printed for J. Robinson at the Golden Lion in St. Paul's Churchyard, and Mat. Wotton at the Three Daggers in Fleetstreet. 1689.   

THE Lord Chief Justice HERBERT's ACCOUNT EXAMINED.  
WEre it not the Reproach of our Times, to have had Men advanced to Courts of Judicature, for other Merits, besides Integrity, and Learning in the Laws of their Country; it might seem a great piece of Vanity in me, to answer a Book stamped with the Name, and Authority of a Chief Justice.  
Yet, perhaps, I might be thought not without cause to take this as my more immediate Province; having been the first of the Profession, who ventured in Public Companies to show, how woefully that innocent Book-Case 2 H. 7. in relation to Sheriffs, has been mistake, or wrested, to serve for Colour to that hasty Judgement in Sir Edward Hales his feigned Case.  
Wherefore, how needful soever the Chief Justice may find it, to make Protestations of his Sincerity; 
Vid. Account, p. 1.  this may supersede any such from me. Nor would I willingly call his a Protestation contrary to apparent Fact (especially considering that weakness of Judgement manifested by this Defence) did he not give too great occasion for it: 1. From the large Steps which he took, to precipitate, and, as I am well assured, to solicit that Resolution. 2. The manner in which he delivered it, widely differing from what he now prints. 3. The unfairness of his present Quotations: And, 4. The unhappiness, not to say worse, of those Instances which he is pleased to give of his Sincerity.  
I shall not dispute, or repeat his Lordship's State of the Case: But the Question upon it being, Whether the King may by his Prerogative dispense with the Statute 25 Car. 2. c. 2. requiring all Persons in any Office under the King to take the Test against Popery, I shall inquire,  
1. Whether those Books, which he relies on as Authorities for his Judgement, give any colour to it.  
2. Whether, admit they did, they would countenance the Resolution as he delivered it.  
3. Whether those Instances which he offers of his Sincerity, may reasonably be taken for such.  
4. Whether he in any measure clears himself from the Imputation of being highly criminal.  
His Lordship, like a Master-Disputant, begins, as he thinks, 
Account, p. 6.  with a Definition of a Dispensation, which, he says, is given by the Lord Cook: 
Cook 11 Rep. f. 88  Dispensatio mali prohibiti est de jure Domino Regi concessa, propter impossibilitatem praevidendi de omnibus particularibus; & dispensatio est mali prohibiti provida relaxatio, utilitate, seu necessitate pensatâ.  
Where, I must say, he very unlearnedly clogs the Definition of a Dispensing Power, with the Person in whom 'tis supposed to be lodged; nay, and the Reason too why it should be so, which neither the Lord Cook, nor Common Sense, gives him any Warrant to bring into the Definition. However, it seems, according to this, a Dispensing Power, in some Case or other, is vested in the King; which yet is far from proving any thing to his purpose; for either the King may in all Cases dispense as to particular Persons, and then his Distinction of malum prohibitum, 
V. p. 7. & 8.  & malum in se, falls to the ground; or else it reaches only to those Cases, in which the Judgement, or Flattery of Judges have ascribed it to him.  
He adds out of the Lord Cook, 
P. 6. 11 Rep. f. 88  as an Enlargement upon what he calls the Definition: Inasmuch as an Act of Parliament, which generally prohibits any thing upon a Penalty that is POPULAR, OR ONLY GIVEN TO THE KING, may be inconvenient to divers particular Persons, in respect of Person, Time, or Place; for this purpose the Law gives a Power to the King to dispense with particular Persons. Where the Lord Cook manifestly restrains the Penalty, to such as is given the King as Head of the People, upon which account only he calls it Popular; nor, indeed, can be thought to take in what is granted to any Subject that will inform, it being mentioned without distinction whether before, or after an Information commenced.  

7 Rep. f. 36.  And that the Lord Cook's Words here, ought not to be strained farther, is yet more evident, from the Case of Penal Statutes, on which Sir Edward Herbert's Misrepresentations will occasion my more particular Remarks.  
As Sir Edward, considering what Interest he has served, may be presumed something conversant with Priests and Jesuits, He might, among others of less use, have consulted the Learned Suarez, 
Suarez de Legibus, lib. 6. cap. 10. f. 384.  who after the Definition, which he makes to be Legis humanae relaxatio, in a distinct Chapter shows, with whom the ordinary Power of Dispensing (which he distinguishes from that which is delegated) is lodged, where he says, 
Ib. cap. 14. f. 395.  Certum est eum habere ordinariam potestatem dispensandi, qui legem tulit: And he gives the Reason, Quia ab ejus voluntate, & potentiâ pendet. So that none can have this power, but he, or they who are vested with the Legislative exclusive of others; or such as have it delegated from thence. 
V. Jus Angl. ab Antiquo & Jani Angl. fa. nov.  That the King has not the Legislative exclusive of others, is what I have formerly proved at large, and it lies on the other side to show that the Dispencing Power bas been delegated to him. Yet thus much may be said on the contrary.  
1 st. That the King could not in Law be presumed to have exercised such a Power by himself; for that the ancient Law provided, that he should have a Counsel chose in Parliament, who (as the Charter affimed to be declaratory of the ancient Law, and sworn at the Coronation of Hen. 3. has it) were sworn quod negotia Domini Regis & Regni fideliter tractabunt, 
Vid. Mat. Par. de Anno 28. H. 3. So Rot. Pat. 42, H. 3. m. 4. m. 10. V. Jan. An. fa. Nou. p. 244. Rot. Par. 4. E. 3.  & sine acceptatione personarum omnibus justitiam exhibebunt: and that it was accounted the Law long after that, appears by the impeachment of Roger Mortimer 4ᵒ. E. 3. part of which was, that Whereas it was ordained in the Parliament next after the King's Coronation, that four Bishops, four Earls and four Barons should stand by the King PUR LUY COUNSEILLER, without whose assent NUL GROS BUSOIGN NE SE FEUST. Nevertheless Mortimer would undertake to manage all by himself, accroaching Royal Power, 

Vid Rot. Par. 5. E. 2. Ryley pl. parl. f. 317.  
Rot. Par. 8. E. 2. n. 35. 4. E. 3. n. 16. 17. E. 3. n. 12. Walsingham fol. 243.  
Vid. Knighton the 1st. Art against R. 2. f. 2747.  
Vid. etiam 5. H. 4. n. 37. 11. H. 4. n. 15. 1. H. 6. n 16.24.30. 11. H. 6. n. 17. 31. H. 6. n. 38.  
V. Roles Ab. 2. part. 179. Mat. Par. ed. Tig. f. 784. V. Math. Paris f. 827. illepidum.   and it is easily to be shown that such a Counsel was in use, or continually insisted on, as the right of the Kingdom, from the time of the Charter, confirmed 28. Hen. 3. till the end of the Reign of Hen. 6.  
2. A Power to grant Non obstantes to Statutes could not have been a right in the Crown at Common Law; for we have clear Proofs of its odious and condemned beginning, from the sulpureous Fountain of Rome, as an honest Popish Lawyer confessed with a deep sigh. 35 Hen. 3. this Non obstante Matthew Paris calls a detestable addition, against all Reason and Justice; and when the year after King Henry urged the example of the Pope for Non obstantes: The Prior of Jerusalem says, God forbid you should use this unpleasant, and absurd word; as long as you observe Justice you may be King, and as soon as you violate it, you will cease to be King. Which shows how little Foundation in Law it then was thought to have; and what the whole Nation thought of the Pope's use of it, may be seen at large in Matthew Paris, 

Prin's Animad. f. 129.130.  
V. etiam Sir John Davis his Rep. f. 69. b.   and Mr. Prin's Animadversions on the 4 th'. Institute.  
Farther the Reasons given why the King ought to have this Power, fail here upon many accounts.  
1. In that the Interest of the whole, of which the Legislators are the best Judges, when they make the Law without Exception, aught to outweigh all private Inconveniences.  
2. The Law has provided a more certain, and equal Remedy; having taken as sufficient Care for the meeting of Parliaments once a Year at least, and, I may say, 
* Vid. Mod. ten. Parl. Parliamentum separari non Debet dummodo aliqua Petitio pendeat indiscussa vel ad Minus ad quam non suit determinatum responsum & si Rex contrarium permittat perjurius est. As I find it in an ancient MS. of the Modus. Vid. etiam 4 Inst. f. 11. Vid. 50 E. 3. n. 177, 178. 1 R. 2.95. This acknowledged for Law in the King's Name, 2 R. 2. n. 4.  sitting too, as it has for the sitting of the Common Courts of Justice; as appears from the several Statutes in Print, and others in the Rolls, which avoid the common Cavil upon the words Oftener if need be.  
And these were, like the famous Triennial Act, Provisions for the greater certainty of meeting so often at least; but no Recessions from the old Law, which, as appears both by the Mirror, and the Life of King Alfred, 

Vid. Spelm. Vit. Aelfredi, f. 115.  
Mirror, p. 282. Where 'tis placed among the Abuses of the Law, That Parliaments are not held twice a year.   was for the Great Council to meet twice a year at London.  
3. The great Reason assigned in the Latin Quotation from the Lord Cook, Propter impossibilitatem praevidendi de omnibus particularibus, which is after distinguished, as to Person, Time, and Place; can by no means be applied to the Case in question: For, 1. The Law was made but very few Years before their Lordship's Resolution, and not grown more inconvenient by length of time to any particular Person, than it was at the making of the Act. 2. The Lawmakers had in their immediate prospect every particular Person of the Romish Communion, and the Time when, and Place where, the Danger would happen, if any such were Commissioned.  
Let us now see what help he can have from his second Quotation from the Lord Cook, which is 7 Rep. f. 73. but he intends, I suppose, f. 37. and would have it believed, that it was the Opinion of all the Judges of England, 2 Jac. 1. That the King may dispense with any particular Person, that he shall not incur the Penalty of the Statute, 
Account, p. 7.  tho' it be an Act made pro bono publico, and that this is a Trust and Confidence inseparably annexed to the Royal Person of the King, in which, 1. He again overthrows his Distinction of malum in se and prohibitum, making that Power at large in relation in any Statute pro bono publico. 2. He manifestly perverts the Lord Cook's sense, whose Words are, 
7 Rep. f. 36.  When a Statute is made pro bono publico, and the King as Head of the Commonwealth, and the Fountain of Justice and Mercy, is by all the Realm trusted with it; this is a Trust and Confidence inseparably adjoined, and annexed to his Royal Person, in so high a Point of Sovereignty, that he cannot transfer it to the disposition or power of any private Person, or to any private Use; for this was committed to the King by all his Subjects, for the Public Good, etc. But true it is, that the King can upon any cause moving him, in respect of Time, Place, or Person, etc. make a Non obstante to dispense with any particular Person, that he shall not incur the Penalty of the Statute.  
Where the sole Question was, of transferring over a Penalty granted to the King, as entrusted by all the Realm to see the Statute put in execution, by inflicting the Penalty: This Trust is adjudged inseparable, and not to be transferred over; but that however, the King may dispense with the Penalty granted to himself. Upon which I must say our Chief Justice has made a very foul Stretches; for what is this to the Informer's Part, concerning which the Question before him was? But surely there is a mighty difference between these two Propositions. Where the Subjects have entrusted the King with a Statute made for the Public Good, this Trust is inseparable, and cannot be transferred to another; but the Statute so entrusted may be dispensed with; which is all that is to be gathered from the Lord Cook: and this, Tho' an Act be made for the Public Good, yet the King may dispense with it, and this is a Trust and Confidence inseparably annexed to the Royal Person of the King; which is Sir Edward Herbert's perverse Comment. In short, Lord Cook says, Where the King is entrusted with the Execution of a Statute made for the Public Good, he may dispense with that Statute. Sir Edward Herbert says, He may dispense with any Statute made for the Public Good. Upon which 'tis to be observed, That the Question in the Lord Cook was not of Dispensing, but granting over the Penalty; which Penalty, he says, is not to be transferred over: The other would make it of Dispensing, and that that Power is inseparable, and not to be transferred; so apparently changes the State of the Question.  
His next Step is to the Year-book of H. 7. f. 11, & 12. in which he leaves us to seek the Year, which is 11. This he calls the first, and great Case which he citys, wherein the King's Dispensing Power is described and limited.  

Account, p. 7.  There is a diversity, says the Book, between malum prohibitum, and malum in se; as a Statute forbids any Man to coin Money, and if he does, he shall be hanged, this is malum prohibitum; for before the Statute, Coining Money was lawful, but now it is not so, and therefore the King can dispense with it. So if a Man ship Wool in any place but Calais, it is malum prohibitum, because it is prohibited by Act of Parliament: But that which is malum in se, the King, nor no other Person can dispense with; as if the King would give a Man power to kill another, or licence one to make a Nuisance in a Highway, this were void; and yet the King can pardon these things when they are done. Upon this Case 'tis observable, That the Power of Dispensing is here asserted in relation to Things, and not Persons: Wherefore according to this, taken in Sir Edward Herbert's Latitude, the King may grant Dispensations to all in general, where the Matter is only malum prohibitum; whereas he himself owns that the nature of a Dispensation is particular, and given to particular Persons by name. 
Pag. 7.  2. Many things in Magna Charta, nay the most, are but mala prohibita; and so Magna Charta its self may be dispensed with: when he himself owns, 
Pag. 28.  that the King cannot dispense with one Tittle of Magna Charta: And methinks he could not but observe this Contradiction. Wherefore the Rule there, admit it were a Judgement in Law, as it was not, being only spoken obiter by one of the Judges, 
Chief Justice Fineux, 11 H. 7. f. 12. a.  can be applied only to such Cases as are there cited. The first is that of Coining Money, which goes upon the ground in Moor's Reports, 

Moor Rep. f. 714.  
Indeed the Book spsaks also of dispensing with Statutes restraining the Prerogative; but that concerns not the Instances here of things forbid the Subject for the limitation of that Power. Vid. infra.   where 'tis said, that such Statutes as give a Prerogative may be dispensed with: and that of shipping Wools at Calais, the King's Staple, is of the same nature; and both sufficiently show the Distinction of malum prohibitum, from malum in se, to relate barely to such things as become evil by accident, as they are against an accidental Prerogative. Which no way interferes with the Rights of the Subjects in general, or particular.  
And I much wonder that Sir Edward Herbert should cite my Lord Vaughan in the Case of Thomas and Sorrel, as confirming what he would infer from the Year-Book, when Lord Vaughan says, 
F. 332.  That old Rule has more confounded men's Judgements on the Subject, 
F. 333.  than rectified them; and himself denies that the King can dispense with every malum prohibitum by Statute, tho' prohibited by Statute only.  
Oh, but my Lord Vaughan shows, that a Dispensation does jus dare, and makes the thing prohibited to all others, lawful to be done by him that has it. Does he say this of every malum prohibitum? By no means: Wherefore we must apply it to the Case then in question, which concerned Wine-Licences, about which the King had a Prerogative by Statute-Law: And the dispensing with that, falls within the Rule in Moor; 
Sup. f. 714.  agreeing with the Lord Coke in the Case of Penal Statutes. 
7 Rep. f. 36. b.  Yet even thus much was a Point gained by the Prerogative, since the first of H. 7. for it is then made a Doubt before all the Judges of England in the Exchequer Chamber, and adjourned over for the difficulty, 
1 H. 7. f. 2. b. & 3. ●.  Whether the King could licence the Shipping Wools elsewhere than at Calais; one of the very Instances which Sir Edward Herbert relies on: And Chief-Justice Hussey was positive, that the King could not licence it, tho' indeed the Chief-Baron and some others held as Fineux did afterwards. Wherefore no body of less assurance than our Chief-Justice can say from these Cases results this plain Syllogism.  
Whatever is not prohibited by the Law of God, 
P. 8, & 9  but was lawful before any Act of Parliament made to forbid it, the King by his Dispensation may make lawful again, to that Person who has such Dispensation, tho' it continues unlawful to any body else, etc. In which if we grant his Major, I will own, the Conclusion to bring it to Sir Edward Hales his Case, is not criminal: Yet the Proposition is so pernicious, striking at the very Foundations of our Government, that if there were a Resolution, in stead of an extrajudicial Opinion, giving that Countenance which even that loose Opinion does not; yet it ought to be rejected: For if all Acts of Parliament contrary to Magna Charta are void, as some have held, I am sure much more so would such Resolutions of Judges be; and that such an one would be contrary to that Great Charter, is evident; for no Man can say, that all things prohibited by Magna Charta, are prohibited by the Law of God.  

Acc. p. 9  To come to Sir Edward's next Great Case, as he calls it, but indeed the only one which has coloured the Resolution to the World, which is that 2 H. 7. 

Yet p. 5. he promises to cite the Books and Pages, and to transcribe the very words of his Authorities, that every body may be convinced, if he were in a mistake, it was no wilful mistake.  
2 H. 7. f. 6. b. & 7. a.   Notwithstanding his Promise, he has not been so fair to give the Words of that Case, or so much of them as is material, lest every body might judge of how little use it would be to him; nay, lest Men should be for satifying their own Eyes, he has not directed to the Folio.  
The English of the material part is thus.  
In the Exchequer Chamber all the Justices were shown for the King, how King Edward the Fourth by his Letters Patents had constituted the Earl of N— Sheriff of the same County, and had granted the said Earl the Office of Sheriff of the said County for the Term of his Life, with all the other Offices thereto belonging, rendering to the King at his Exchequer annually 100 l. without any Account, or any other thing to be given for it, etc.  
Now, 1. Whether this Patent was good? And also, 2. How this Patent shall be intended? were the Points in question. And as to the first Point, the Justices held the Patent good; for it is a thing which may well be granted for Term of Life or Inheritance, as divers Counties have a Sheriff by Inheritance, and this commenced by a Grant of the King. Then was shown a Resumption, and then was shown a Proviso for H. Earl of N. so that the Patent remains in its force.  
Radcliff shows the Statute of 28 E. 3. c. 7. and 24 E. 3. c. 5. That no Sheriff shall be more than one Year, etc. altho' he had a Non obstante. And notwithstanding this, that the King shall always have his Prerogative, as of the Value and the Certainty of the Land, and other things granted by the King, and of Wools shipped, and of Charters of Murder, and many other Cases, where the Statutes are, That Patents that want these things shall be void; yet the Patenrs are good with a Non obstante: But without a Non obstante the Patents are void, by reason of the Statutes, so here the Patent, with a Non obstante, etc.  
This is all that is said in the Book upon the first Point, upon which 'tis observable,  
1. By the Book it would seem that this Radcliff was but a Sergeant at Law; for at the end of the Case Brian Justice demands of Brian Radcliff, 
F. 7.  etc. Yet indeed I find upon search, that he was a Baron of the Exchequer.  
2. What Radcliff says is after the Resolution of the Judges over, and no way influenced that.  
3. Whereas Sir Edward Herbert says, the Resolution was upon 23 H. 6. c. 1. Radcliff, who should better know the Subject of Debate, discourses only concerning the Statutes 28 E. 3. c. 7. and 12 E. 3. c. 5. which are barely prohibitory, 
It should be c. 9  without any mention of Non obstantes, or any voiding or disabling Clause. Indeed Radcliff, it being upon a sudden Discourse, as the Book shows, 
F. 7. a. Brook Patents, n. 45.  mistakes the Statutes, as if they had such Clauses; and Brook, who citys part of the Patent, which it seems he had seen, says, there was in it a Non obstante to the Statutes 28 E. 3. c. 7. and 12 E. 3. c. 9  

Fitz. Ab. tit. Grant, n. 22.  Fitzherbert indeed says, R. objected the 23 H. 6. but for that sit liber judex.  

Account, p. 11.  4. But above all, tho' our Chief-Justice calls them the Judge's Enemies, who say, the Point of Non obstante is not resolved in this Case, which he calls Confidence, and that they may as well deny one of the ten Commandments; 'tis manifest beyond contradiction, that the Resolution ended at issint que le Patent demur en sa force; after which comes Radcliffs Discourse; and the Resolution went upon two Gtounds.  
1. That this was a thing grantable for Inheritance, or for Life; which if it were, 
First Ground.  it could not be presumed to be touched by the Prohibitory Statutes: And besides, if the Question had been upon the other, the Case had been an Exception out of the Statute; 
23 H. 6. c. 8.  for the Statute excepts such Counties in which divers of the King's Liege People be inheritable to the Office of Sheriff at the making of the Statute, and also such Persons which have Estate of Freehold in the Office of Sheriff, at the making of the Letters Patents made to to them of the Office of the Sheriff, etc. Now whether this were really a County so inheritable, or of an Estate of Freehold, at the time, or no, is not so very material, being at least it was so looked upon by the Judges, nay and by the Parliament too, as will appear by their second Ground.  
But that this County was such an one, I take to be also true in fact: 
Vid. Cambd. Brit. f. 115. Vid Dugdale's Baron. f. 2. Bromton, a. f. 779 ad 798. De Regno Northumb.  For it is to be considered, that this was the County of Northumberland, which was a Palatinate, upon which Reason this, with other Counties under it, was left out of the Survey in Doomsday Book, as being pensitationibus liberi: This Palatinate comprised Cumberland and Westmoreland, among other Counties, in the last of which the Sheriffwick is at this day enjoyed in Fee. Indeed Northumberland came soon into the Crown, as early as the time of William the Second, upon the Rebellion of Mowbray, constituted Earl thereof in the time of William the First: But the Authority in Law is much clearer, that this Sheriffwick, if ever held in Fee, would remain in the Crown as an Inheritance in gross, and was not merged, than any Sir Edward Herbert has produced on his side; for which we may observe the Rule taken in the Case of the Abbot of Strata Mercella, which is this: 
9 Rep. f. 25 b.  When a Liberty, Franchise, or Jurisdiction was at the beginning erected and created by the King, and there was no such Flower in the Crown before, there by the Accession of them again to the Crown, they are not extinct.  
Where Instances are given of the Cases of Markets, Hundreds, and Earldoms; nor can any one say, that Sheriffwicks are ancient Flowers of the Crown: 
it Rob. Atkins v. Rob. Holford in Scaccario Hil. 22 & 23 Car. 2. Vid. Rep penes doctissimum Dominum Ward.  But more directly to our Case is that between Sir Robert Atkins, and Robert Holford, which, tho' not in our Books, is well known. The Case was of the Grant of the Seven Hundreds of Cirencester, with the Returns of Writs to the Abbot and Covent of Cirencester: This came to the Crown by the Dissolution of Monasteries, 31 H. 8. but yet that it was not merged thereby, but remained as an Inheritance in gross, without the help of any Statute, was the Opinion of the Great Hales then Chief Baron, and of two other Barons, Windham, and Turner. Part of Hales his Words, as I find them excellently well reported, and full to this Point, are:  
Such Hundreds as were anciently severed from the Counties, and come again to the Crown by Escheat or Forfeiture, were sometimes, but rarely committed to the Sheriff, and rejoined to the County, but for the most part kept a distinct: Ret. Brevium, and the Hundred to which it was annexed, without an actual and special Reannexion to the County, remains in the King in gross; for the Ret. Brevium is a thing created de novo. Suppose it were a Court or Jurisdiction merely created by the King, and the Hundred itself, though ancient, yet by return to the Crown it is not merged or annexed; this I know in the Case of the Courts belonging to the Honours of Gloster, and Hereford, that came to H. 5. by Marriage of a Coheir, it is still in esse.  
This were enough to show, that the Judge's Resolution 2 H. 7. had a better Legal Foundation than what Sir Edward Herbert would suggest.  

The second Ground.  2. But then besides that, there was another Ground mentioned in the Book, which was, That a Resumption was shown before the Judges; and then was shown a Proviso for H. Earl of N. and so says the Book, the Patent remains in its force. This Resumption was an Act of Resumption 1 H. 7. and if this Act provided for that Earl's Grant, as the Judges it seems thought it did, who can doubt but the Grant was good? The Act of Resumption is to be seen upon Record; 
Rot. Parl. 1 H. 7. par. 2.  it is a Resumption of Grants made by Edward the Fourth, and among others, of the Yefts, that is, Gifts of Offices: The Proviso runs thus.  
Provided always, That this Act of Resumption, or any other Act made or to be made in this present Parliament, be not in any wise prejudicial or hurtful to the several Grants, and Letters Patents made to Henry Earl of Northumberland, etc. Which indeed does not make good any void Grant, but supposes all the Grants to him to be good in Law; nor would the Judges dispute their Supposal.  

Account, p. 12.  I admit with him, that Fitzherbert says, and that truly, That the Patent was adjudged good; but the Reason he gives agrees with what I have shown; his words are, for such a thing may be grantable for Inheritance, or for Life; and then I am sure that the Statute does not say expressly, the Patent shall be void, 
Vid. Account, f. 12.  tho' Sir Edward affirms that it does.  
Obj. It may be objected, that the Exception in the Statute relates to Estates in the Subject; but if this were an Interest in gross in the King, that it could not be taken from him without express words, cannot be denied me.  
What he citys from Plowden, 
Account, p. 12.  can be of no more service; for he only says, there it is held, and I agree it is held by Radcliff, 
Accoont, p. 13.  with a mistake of the Statute, That the King can grant a Sheriffwick for more than a Year: Yet whereas he magnifies this as cited by Plowden, who, as he supposes, well understood the sense of the Year-Book;  
1. It does not appear that it was Plowden, 
Grenden v. Levesque de Lincoln.  but one who was of Counsel in the Case for the Defendant, who mentions this.  
2. He mentions it only as a Case in Fitzherbert, without referring to the Book 2 H. 7. 
Plowden, f. 502.   
But the second Point raised before the Judges, 
Second Point 2 H. 7.  which occasioned the main Debate in that Case, as appears by the Book, shows, That the Resolution could not be upon the Point of Prerogative; for they questioned whether the King could dispense with his own Profit; and all the Judges except Brian, and Catesby, held, that the Patentee shall account for the Green Wax, and other things, notwithstanding the Clause of absque reddendo computum: But the Debate concerning other things arising upon that second Point, was adjourned; the first resolved upon the Grounds above.  
Tho hitherto there is no proof, that any one of Authority in the Law has taken the Book 2 H. 7. in Sir Edward Herbert's sense, which yet would be of no moment if they were express, being the Book is to be seen, and clearly otherwise; yet he thinks my Lord Coke will bear him out, and to this purpose he citys two Places; one, where he supposes that the Lord Coke not only authorises this sense of the Case, but asserts the Prerogative in much higher Terms than they would presume to do; 
Account, p. 13.  and by the second he would have it believed, that if the Lord Coke be a faithful Reporter, all the Judges of England took that Case in the same sense.  
The first is the Case of Customs, 24 Eliz. which is pregnant with many Objections against its being of any force in this Case.  

12 Rep. f. 17.  1. The Book is of suspected Authority, being printed in the late Times, and what the Lord Coke never owned, or thought fit to print in his Life-time.  
2. This comes foisted in among Cases in the time of King James, without any parallel Case which might occasion the placing of it there.  
3. It was when the Lord Coke was but a young Reporter, 
Was made Solicitor 16 June, 34 Eliz. Dugd. Cron. Series, f. 99  it being ten Years before he was King's Solicitor.  
4. It is not only no Point in question relating to the Case where 'tis cited, and so extrajudicial, but wholly foreign to it: For the Question was, Whether Goods sold before they were landed, were to pay Custom within the Statute 1 Eliz. c. 11. Wherefore being barely a Memorandum of a young Reporter, no way occasioned by what went before, it cannot possibly have any weight.  
5. The fancied Reason there given why the King may dispense with the Statute of Sheriffs, is none at all; for whereas it says, 
12 Rep. f. 18.  that the King has a Sovereign Power to command any of his Subjects to serve him for the Public Weal, and this solely and inseparably annexed to his Person; and this Royal Power cannot be restrained by any Act of Parliament; there is no Authority cited for this, but the Case 2 H. 7. which, as appears to any body that reads it, neither has that Reason mentioned so much as by any one Judge, nor in the least goes upon the Point of the Prerogative. Besides, if the King can command any Subject to serve him for the Public Weal, either he is to be Judge, or the Laws. If the latter, than no Person not qualified by Law is obliged to act; nor tho' qualified, to do any thing forbid by the Laws. If the former, as the Words imply, than the King's Commands may be pleaded to justify any ill Minister who has rendered himself obnoxious to the Laws. But that this cannot be, is sufficiently evinced by necessary Examples in all Ages. And this, by the way, may show how false, as well as pernicious, that Doctrine is, which tells us, 
Dr. Sherlock's Case of Resist. p. 113.  That 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the New Testament always signifies the Authority of a Person, not of a Law: Or, as another has it to the same purpose, 
Dr. Scot's Serm. upon Rom. 13, 1.  By Higher Powers, it is evident, we are to understand the Persons of Sovereign Princes, or Governors, not the Laws and Constitutions, as our Republican Doctors pretend.  
Of the same Batch is another memorable Position, 
Dr. Sherlock's Case of Nonresistance, p. 199.  That the King's most illegal Acts, tho' they have not the Authority of the Law, (for indeed, to say they have, would be a Blunder with a witness) yet they have the Authority of Sovereign Power. Some will say, that this is qualified by what follows, Which is irresistible and unaccountable; as if the King had this Power only so far as it is irresistible and unaccountable: Whereas it is evident, the Proposition is entire before, being the Medium whereby he would prove, that the King's illegal Acts are not inauthoritative; in proof of which Medium, he afterwards affirms, 
Pag. 199, 200.  That the Sovereign Power which made the Laws, and can repeal and dispense with them, is inseparable from the Person of the Prince.  
Reduced to a Syllogism, it runs thus:  
The Authority of Sovereign Power is irresistible, and unaccountable: But the King's most illegal Acts have the Authority of Sovereign Power. This is an entire Proposition, upon which he concludes, Ergo, The King's most illegal Acts are irresistible, and unaccountable. This Assumption he goes to prove from the Supposition, that such a Sovereign Power as he describes, is inseparable from the Person of the Prince; upon which, or the like Doctrine, another raises this comfortable Use. 
Jovian, p. 242. How falsely, vid. the Letter to Jovian.  In all Sovereign Governments (and such he at large endeavours to show England to be) Subjects must be Slaves as to this Particular, they must trust their Lives and Liberties with their Sovereign.  
But for the Honour of our Gown, this may be said, That such Heretics never appeared among Lawyers, 
Vid. Jovian, p- 236.  till Divines began thus to wrest the Laws, and Scriptures to their own damnation. But as the former Quotation out of the Lord Coke can do Sir Edward Herbert no service, upon the Reasons above shown, much less can the other, which is one of Sir Edward's usual Perversions: 
Account, p. 13.  He tells us, That it is resolved by all the Judges, if my Lord Coke be a faithful Reporter, that it is agreed 2 H. 7. That the King may, against the express Provision of the Act 23 H. 6. dispense with that Act; for that the Act could not bar the King of the Service of his Subjects, which the Law of Nature did give unto him. He adds, This is reported (unless my Lord Coke had a mind to deceive the succeeding Judges, and draw them in to give pernicious Opinions) as the Sense of all the Judges of England, in King James 's Time, in the Exchequer-Chamber. Whereas the Lord Coke, on purpose to prevent such an abuse of his Words, says in the beginning of the Case,  
7 Rep. f 4.  I shall give no just offence to any, if I challenge that which of right is due to every Reporter, that is, to reduce the Sum and Effect of all to such a Method, as upon consideration had of all the Arguments, he himself thinketh to be fittest and clearest, for the right understanding of the true Reasons and Causes of the Judgement, and Resolution of the Case in question. 
Upon which it is evident, that if any one of the Judges mentioned this, the Lord Coke is a faithful Reporter; but had he been silent as to this matter, no man could suppose, that such a tedious Argument as that in Calvin's Case, was the Resolution in which the Judges concurred in every Expression.  
But Sir Edward Herbert's own Eyes might, and aught to have satisfied him, that the Judges 2 H. 7. gave no Determination upon the 23 H. 6. nor does the Book say, that so much as any one Person spoke to that Statute, or mentioned the Reason devised in Calvin's Case; for that the Act could not bar the King of the Service of his Subject, which the Law of Nature did give unto him. Nor could Sir Edward choose but know the absurdity of that Ground; for according to that, all aught to be left in the State of Nature, as it was before any Law made; so that not only any Person might act, though prohibited by subsequent Laws, but he might act any thing forbid by any positive Law; 
Vid. Archb. Abbot's Exceptions to Sibthorp's Serm. Rushw part 1. f. 439. & 442,  which would make a mad World: And this would come of a Natural Allegiance due to the Person of a King, without respect to the Laws of his Government. And the Resolution of the Judges in Calvin's Case, is quite contrary to this Supposal; for it is there resolved, That they who were born under King James his Allegiance, 
7 Rep. f. 27. Vid. Vaugh. f. 286.  before he had the Crown of England, were Aliens here, notwithstanding that Accession.  
But my Lord Coke is so far from giving any real Countenance to such a Resolution, as that in Sir Edward Hales his Case, that he, in concurrence with all the Judges of Edgland, is express to the contrary; for in relation to the Court of Admiralty, he and the rest of the Judges declare, 
4 Inst. f. 135.  That the Statutes of 13 R. 2. c. 3. 15 R. 2. c. 5. and 2 H. 4. c. 11. being Statutes declaring the Jurisdiction of the Court of the Admiral, and wherein all the Subjects of the Realm have Interest, cannot be dispensed with by any Non obstante. Nay, he gives another Resolution of Judges, tho' not so solemn as the former, yet what he says is warranted in the Books, and the Resolution comes up to our Case in terminis: 
3 Inst. f. 154.  His Words are; When an Act of Parliament is made that disableth any Person, or maketh any thing void, or tortuous, for the good of the Church or Commonwealth, in that Law all the King's Subjects have an Interest, and therefore the King cannot dispense therewith, no more than with the Common Law.  
All the Chimerical Foundation of Solemn Resolutions being thus destroyed, I need not concern myself with the vain airy Superstructure, which must vanish in fumo; and in stead of the Appeal, 
Account, p. 16.  What may be relied upon, if such Resolutions may not? I appeal to all Mankind, Whether our Senses are not sufficient Judges against these Accidents, subsisting without any Subject, mere Transubstantiation Nonsense! Such are Reasons devised for a Resolution which never was to be seen.  
But we are told, 
Account p. 16.  That besides the Authority of the Case, we have constant Practice that this Statute has been dispensed with ever since; and if it were not so, the Consequences would be dreadful, illegal Convictions, etc. But to this I say,  
1. A facto ad jus non valet argumentum, till there be legal Determinations on the side of the Fact.  
2. The Fact cannot be shown, for any Sheriff to have enjoyed the Office for more than one Year by the same Patent.  
3. However the Consequences would not necessarily follow; for we know, 

Vid. Consid. touching the Grand Quest. a. p. 210. to 214.  
1 Inst. f. 58 b.   even Laws made by Kings de facto have always been looked on as binding, and so have the Admittances to Copyhold Estates, made by Disseisors, and others without Title. And, tho' I love not to lay any great stress upon Precedents of our own time, yet it may serve to Sir Edward; and we well know, that notwithstanding the late illegal Choice of Sheriffs in the City of London, yet no Challenges were allowed, because they were Sheriffs de facto.  
That I may not be here unnecessarily detained, with what he says to real or fancied Objections, I shall hasten to his other pretended Authorities, and shall begin with his last, as having the most immediate reference to the Cases abovecited, and which he seems to be most proud of, and that is Serjeant Glanvil's Argument, delivered at a Conference between the Lords and Commons; wherein he owns, that in such things as are only mala quia prohibita, 
Account, p. 26.  under certain Forfeitures and Penalties to the King, and the Informer, there the King may dispense. This indeed is more than appears from any Case that Sir Edward Herbert has cited, as I have shown above; yet is no more than what the Lord Coke saith elsewhere, immediately after he has denied that Power in things made void or tortuous, 
Vid. supra, 3 Inst. f. 154.  for the Good of the Church or Commonwealth; in which, he says, all the King's Subjects have an Interest, and therefore the King cannot dispense therewith, no more than with the Common Law.  
All that is more in Sergeant Glanvil, relates only to the Nature of those Laws which were then insisted upon; if he went further, it could no more be an Evidence of the Opinion of the House of Commons in that Point, not being the Point put to the question, than his Quotation out of Calvin's Case, is of the Opinion of all the Judges. But the first part of his Speech cannot be stretched farther than mala prohibita had formerly been taken, that is, in relation to new Prerogatives, 
Vid sup p. 12, 28, 30.  or at least Things wherein the Subjects in general have no Interest vested in them; and he expressly restrains it to such Cases, 
Account, p. 26.  wherein his Majesty, by conferring Grace and Favour upon some, doth not do wrong to others; as it is in my Lord Coke above, and in Moor, where 'tis held, 
Moor, sup. f. 714.  That Statutes which give a Prerogative, or restrain the Prerogative, may be dispensed with; but not such as give, or dispose of Interests: And as to what restrains the Prerogative, not coming within the mala prohibita, tho' it falls not under consideration here, yet we may observe the difference taken in Lord Hobart, 
Hobart, f. 146. Vid. Vaughan, f. 57 speaking of Lord Hobart's Judgement, which is always accurate for the Reason of the Law.  where a Statute is made to ease the Sovereign of Labour, not to deprive him of Power. In the first Case the King may dispense, not in the other.  
And I think no man can doubt but the Statute 25 Car. 2. c. 2. which not only requires Officers to take the Oaths, and Test, to distinguish them from Papists, but disables them that do not take them within three Months, vests an Interest, not only in several particular Persons, who may be Reversioners, but in all the Subjects in general; and is of the nature of those Statutes insisted on in the Petition of Right, and pressed for by Sergeant Glanvil, Not Laws inflicting Penalties in malis prohibitis; 
Account, p. 27.  but Laws declarative, or positive, conferring, or confirming ipso facto an Inherent Right, and Interest of Liberty, and Freedom in the Subjects of this Realm, as their Birthright, and Inheritances descendable to their Heirs and Posterity. A Freedom, I may add, from Popish Slavery and Tyranny, Statutes incorporate into the Body of the Common Law, over which, with reverence be it spoken, there is no Trust in the King's Sovereign Power, or Prerogative Royal, to enable him to dispense with them, or take from his Subjects that Birthright, or Inheritance which they have in their Liberties, by virtue of the Common Law, and of these Statutes: I may say, this Statute.  
And such a Statute it is, that no man that wishes well to the Protestant Interest, not only here, but through Christendom, would consent to the abrogating or impairing the Force of it; without obtaining such Laws for restoring the ancient Constitution, both for the Choice of Sheriffs, and Counsellors, among other things, as might more effectually keep out the Booted Apostles, than any other Means, next to the glorious Expedition of his Highness the Prince of Orange: whose miraculous Successes, are not only the Subject of present Admiration, but have been plainly foretold in past Ages, 
Vid. Grebner, cited in the Northern Star. Vid. Nostredamus, Cent. 1.33.35.2.68.87.3.16.4.75.89.5.24.26.34.87.6.7.13.28.8.58.9.38.64.10.7.26.56.12.80. 5th. Stanza, at the end.  and will be celebrated in all future.  
But to return from this short Digression: 'Tis manifest that Sergeant Glanvil speaks as well of such Laws as are positive, as those that are declarative; such as confer an inherent Right, as that confirm; and of Statute, as well as Common Law, not to be dispensed with; so that he is manifestly on our side, and seems not in the least to have exceeded the Lord Coke, where he makes so express an Exception of our Case, from that Dispensing Power which he allows. By inherent the Sergeant can mean no more, considering the import of confer, than actually vested, and inherent, and inseparable by any less Power than that from which it was derived. Thus in relation to those Prerogatives that have been counted inherent, and inseparable in relation to Penalties, and the like, 
Vid. Lord Cook's c. of Penal Statutes, 7 Rep. f. 36.  the true meaning can be only that while they continue, they are not to be separated, and transferred over to another: Yet no thinking Man will doubt the Power of a Parliament, in relation even to them; and if they cannot be receded from in particular, at least they may in gross; when a King does cedere imperio, or abdicare Regnum, which most Prerogative-Casuists own may be, 

Vid. Grot. de Jure Belli & Pacis.  
Vid. Falkner's Christian Loyalty, p. 544, 545. speaking of the Parisian Massacre, etc. But if ever any such strange Case as is proposed, should really happen in the World, I confess it would have its great Difficulties. Grotius thinks that in this utmost Extremity, the use of such Defence, as a last Refuge, ultimo necessitatis praesidio, is not to be condemned, provided the Care of the Common Good be preserved. And if this be true, it must be upon this ground, that such Attempts of Ruining do ipso facto include a disclaiming the Governing those persons as Subjects, and consequently of being their Prince or King. V. Bishop Bilson, of Christian Subjection, Ed. 1586. p. 280. I never denied, that the People might preserve the Foundation, Freedom, and Form of their Commonwealth, which they foreprized when they first consented to have a King.   not only by actual session from the Government, but by Acts amounting to an Abdication, and showing a fixed Intention no longer to treat his People as Subjects. Nor perhaps could there be greater Evidence of such Intention, than the dispensing at a lump, not barely by retail to particular Persons, with those Laws which were made by the united Wisdom of the Nation, to secure it, as much as they thought Humane Means could, or, at least, the Court would yield to, against those real Dangers, which were in their immediate prospect: Nor in all probability had this Enclosure been laid waste, if the Dispensing Judges had not made the first Gap.  

Account, p. 24.  As to Sir Edward's supposed clear Concessions of this Power from all the Commons of England, 1 H. 5. they are quite otherwise than he represents them, nor would be conclusive to his Point however.  
In the first, says Sir Edward, The Commons pray, that the Statutes for voiding of Aliens out of the Kingdom, may be kept and executed; to which the King agrees, saving his Prerogative, that he may dispense with whom he pleases; and upon this the Commons answered, That their Intent was no other.  
But the Record says, Sauvant a luy sa Prerogative," Saving to him his Prerogative. Whatever that was, they declare, they never intended to injure it. Then it goes on with the Copulative and, which adds new Matter, and is dishonestly left out by Sir Edward, Et qil purra dispenser ovesque cex queux luy plerra, AND that he may dispense with whom he pleases: Which is an additional Grant, or Licence to that King; but that this Saving is but a general Saving of the Prerogative, appears by the very next Record, which he citys of the same Parliament.  
Sir Edward's Words are, In the same Parliament, when the Commons pray, That the Statutes of Provisors, Statutes of the same nature with this in our Case, (for they were made against the Court of Rome's encroaching Jurisdiction in England) I say, when they make the like Prayer, That these may be put in execution; being admonished by the King's Answer in the former Case, they themselves insert in their very Prayer, a Saving for this Prerogative of the King's, and then the King agrees to it. Where he would insinuate, that this Prerogative of dispensing with particular Persons, is there saved; when the Record is express to the contrary: The Words in English are,  

Rot. Parl. 1 H. 5. n. 22.  Also the Commons pray, for the Good and Profit of the Realm, That all the Statutes made against Provisors, in the Times of the most Noble Kings E. 3. R. 2. H. 4. your Father, 
Qe Dieu assoille.  whom God be merciful to, may stand in their force, and may be held, and executed in all Points, 
A aucuny fait un affair a contre.  and that no Protection, nor other Grant, to any Person, by our Lord the King, working to the contrary, in forbearance of the Execution of the said Statutes, be allowable or available to any Person whatsoever in this Matter. 
A nullie.  And if any thing be done to the contrary, 
Pur null.  let it be held for null, or void: Saving all times the Prerogative of the King.  
The King answers, Let the Statutes thereof made be held and kept. Which is plainly meant according to their Prayer, without the King's impeding the Execution of them by any Protection, or other Grant to any Person whatsoever; and if such Grant be, that it shall be void. 
Vid. Account, p. 10.  Is not this as much as to say, That no Non obstante shall make any such Grant good? Oh but Sir Edward will tell us, That this shows that the Parliament thought the King could otherwise have dispensed with those Acts. By no means; it only argues an Abuse crept in (which Matthew Paris shows to have been as early as the time of H. 3.) and likely to be allowed of by the Judges; but the Parliament would prevent even that; and surely they would never provide, that a Non obstante, or Grant to a particular Person, shall be void, if they thought the King had a Prerogative to defeat this when he pleased: much less, when they expressly pray against such an Abuse, can they be thought to contradict themselves, and in the same Breath that they desire that no Person whatever may be dispensed with, yet leave the King a Prerogative to dispense with whom he pleases: The absurdity of which Reasoning he might have seen in that excellent Speech of Sergeant Glanvil, 

Vid. Sergeant Glanvil's Speech.  
Rushworth's Coll. part 1. f. 573. & 575. Account, p. 25.   which he himself receives as the Sense of the Commons of England assembled in Parliament.  
Wherefore the Save in both the Records can be but general Save, of such Prerogative as the Kings had, whatever it were: Which the Kings, as they began to encroach upon the People, or to be Jealous of their Encroachments, would have inserted out of abundant Caution, before they would yield to several Acts. And these being Acts of Parliament, which could pass but as the King consented, the People were forced often to gild the Pills with such Save; but 'twas otherwise of Judgements in Parliament, to which no Consent of the King was requisite.  
Farther yet, Admit the King had a Prerogative of dispensing with particular Persons, both as to Aliens, and Provisions; yet there could no general Rule be taken from thence, because it would only argue, that the fondness for Aliens, and fear of displeasing the Court of Rome, had at first occasioned the reserving the Power of easing some particular Persons, without which the Kings would pass no Act against them. However it was, the frequent Complaints of the Commons, 
Vid. Dr. Stillingst. against Cressy, from p. 426. to p. 461.  and Acts made against both the one and the other, show, that those Laws were little regarded or executed, and yet that the King had not a Prerogative allowed him, any more for particular Persons, than for all in general.  
Sir Edward has five other trivial Instances of the Dispensing Power, which however I shall not omit. One is the Dispensing with the Statute 8 R. 2. c. 2. which requires, 
Account, p. 19  that no Man should go Judge of Assize into his own Country: But for this there is only Practice, which has passed sub silentio, and so could be of no Authority in Law: Besides, the Statute is barely Prohibitory, and does not render the Patents void if otherwise; yet I cannot say but an Information would lie, tho' there were a Non obstante in the Case.  
The second is of dispensing with the Statute 10 E. 3. c. 3. which provides, 
Account, p. 19  That whoever has a Pardon of Felony, shall find Sureties of the Good Behaviour: Of which he says, as of the other, That it has been constantly dispensed with ever since it was made. But if the Practice had been so, which he does not prove, it would not avail, unless it had come in question judicially, Whether the Pardon would be valid to one who had not given, or at least tendered Sureties. Indeed there is a Case in our Books, where the Court did not require Sureties, because of a particular Clause in the Pardon dispensing with it: 
Sir Matthew Mints Case, Crook, Car. f. 597.  but this was no earlier than 16 Car. 1. the Judges of which time paid sufficient deference to Prerogative; but that Case seems to be not only primae impressionis, and without any Reason given, but in effect condemned by the Reporter, as he shows that the Court abused their Discretion, if they had any in the Matter: 'twas the Case of Sir Matthew Mints, who appeared to be guilty of several Misdemeanours, for which he deserved to be bound to the Good Behaviour, committed after the time to which he was pardoned.  
The third and fourth Instances, 
Account, p. 31.  scattered from the rest, are of dispensing with Pluralities, and Bastards entering into Priests Orders; which, 
p. 32.  if possible, will be less serviceable to him: For,  

Vid Vaughan's Rep. f. 20. Edes v. Evesque d' Oxford.  1. Such Dispensations are never granted by the King, but by the Archbishop; and the King only licenses, or confirms, the Archbishop's Dispensation in unusual Cases.  
2. That the King's Licence or Confirmation in Cases unwont, as the Statute has it, is of any force, is owing to the Statute 25 H. 8. c. 21.  
3. Even in usual Cases, where the Archbishop might dispense, tho' the King's Confirmation be added, yet unless it come in due time, it will not prevent a Lapse incurred upon the Statute 21 H. 8. c. 13. against Pluralities; as was adjudged in Digbies Case, 
4 Rep. f. 78. b.  tho' the Dispensation came before Induction. And this comes up fully to one of the Points in Sir Edward Hales his Case, which our Chief Justice has not been so fair as in the least to mention to be a Point in the Case: nay, quite contrary, he supposes it to be a Case where a Disability is annexed as a Penalty, 
Account, p. 38.  and that Penalty is not to be incurred before Legal Conviction, and where the King's Dispensation makes the thing dispensed with lawful, and consequently prevents any Conviction or Penalty at all; forgetting, that in the very State of the Case, 
pag. 5.  he owns there was a Conviction before the Dispensation came; so that here was a Disability actually incurred, and that upon Record, as appears in the Plead; and while that Record remains, there is no falsifying of it, 
Vid. Rolls Abr. Brook. Fitzh. tit. Estoppel, particularly Statham. Si home soit oblige de garder le Peace & puis Scire facias issist verse luy de ceo qil bat. uneqe viet & est trove coup. & puis cet port. brief de trans. vers luy de mesm le batie & il pled de rien coup. il luy estoppera per matter trove all suit le Roy, etc. So Brook. n. 59  tho' in fact the Conviction were before the three Months given in the Statute to prevent a Disability; and he had no other Means, than either to plead no such Record, or to bring his Writ of Error. Wherefore this Dispensation comes clearly within Digbies Case, as being too late, supposing otherwise it were valid.  
As Sir Edward shows that he has read Thomas and Sorrel●s Case, he might have known another Reason given of these two Cases, viz. 
Vaughan, f. 358.  That the King may dispense with a Bastard to take Holy Orders, or with a Clerk to have two Benefices with Cure; which were mala prohibita by the Canon Law, and by the Council of Lateran, not by Act of Parliament; which is most true: For these are mentioned in the Book of H. 7. before any Act made against Pluralities.  
There is another Instance in that wild Annotation, upon the Case of Customs in the 12 Rep. where 'tis said, 
Account, p. 14.  See 4 H. 4. c. 31. in which 'tis ordained, That no Welshman be Justice, etc. in any part of Wales, notwithstanding any Patent to the contrary, with Clause of Non obstante licet sit Wallicus: And yet without question the King may grant with a Non obstante.  
Nor do I question it neither, even before 21 Jac. c. 1.38. when that Statute was repealed, provided the Welshman use not Welsh Speech; and this by 27 H. 8. c. 26.  
But as to these three last Instances, it might be said further, That if they were stronger than they prove, yet they might fall under the Difference received by him from Lord Vaughan, where he says, The King may dispense with Laws made pro bono populi complicati, but not with such as are made pro bono singulorum populi; in which the Lord Vaughan is not so absurd, as to mean, that tho' the King cannot dispense with a Law in which any Man in particular is so far interested, as to be entitled to an Action for himself alone, yet he may with those in which all the Subjects are interested: But his Meaning, to make him consistent with himself, must be restrained to Lord Coke's Sense upon the Penal Statutes, which makes this Power to be only where the King, 
Vid. 7 Rep. p. 36.  as Head of the Commonwealth, is trusted by all the Realm; in which sense, he alone is to look after the Interest of the populus complicatus under him, as Head. Thus Lord Vaughan, 1. expressly qualifies it, 
Account, p. 21.  when he says, They are pro bono populi complicati, as the King in his Discretion shall think fit to order them for the good of the whole. 2. He illustrates it by the Example of a Pater-familias, whose Estate, 
Vaugh. p. 342.  he tells us, may be said to be pro bono communi of his Family, which yet is but at his Discretion, and Management of it, and they have no Interest in it, but have Benefit by it. 3. Both he, and Sir Edward Herbert allow Instances, where every particular Man is not entitled to his Action, and yet the Statutes are owned to be pro bono singulorum populi, and not to be dispensed with; and such are Magna Charta, 
Account, p. 27, 28.  and those other Laws mentioned by Serjeant Glanvil, and Sir Edward. 
Account, p. 11.  And if some difference can be found between the Interest singulorum populi in all those Statutes, and in ours, to use his words, I wish any man would show me any such difference; or else we must say, That not only the former Resolutions, but Lord Vaughan here, as well as where I before observed, is full against him; 
Supr. p. 12.  nay, even he is against himself: which I would be loath to think that Lord Vaughan is, who owns, 
Thomas v. Sorrel, f. 350.  That the King cannot dispense in any Case but with his own Right, and not with the Right of any other; which he confines not to individual Persons, considered singly; for he says expressly, 
Ib. f. 347.  If the Wisdom of the Parliament hath made an Act to restrain, pro bono publico, the Importation of Foreign Manufactures, that the Subjects of the Realm may apply themselves to the making of the said Manufactures for their Support, and livelihood, to grant to one or more the Importation of such Manufacture, without any Limitation, non obstante the said Act, is a Monopoly, and void. For this I am sure, particular Persons are not entitled to Actions upon their own accounts. Indeed he supposes the King may licence, limiting the Quantity, 
Vaugh. f. 346.  and that for private uses, not by way of Merchandise, as not being against the End of the Act. Wherefore in our Case all the Subjects being interested as Protestants, their Support and Encouragement being provided for by the Act, and the letting Papists into the Government against the End of it, who can doubt but Lord Vaughan would have pronounced Sir Edward Hales' Dispensation void?  

Account, p 31.  And whereas our Judge pleads in his excuse, That tho' this Law was made for the Interest of Religion, the Offence is not directly against Religion, but against a Politic Constitution, tho' made for the Interest of Religion, he might not only have learned from Lord Cook above, 
Supr. p. 30.  That the Subjects have such an Interest as the King cannot dispense with, in what is made void or tortuous, that is, unlawful, for the good of the Church; but Lord Vaughan shows, 
Vid. Lord Vaughan, f. 339, 340.  That there are mala politica, not to be dispensed with, and instances in some things, which are Nuisances in specie.  
Now besides what already has been shown, to disable these three last Instances urged by Sir Edward; That they are not pro bono singulorum populi, as that Rule is vindicated from Misapplications, may appear, in that neither of them affect all the People in general: As to the Clergymen, they can only do injury in their respective Parishes where they are Beneficed, and the Welshman in that part of Wales where he is an Officer; nor besides, can the Clergymen be supposed much to prejudice the Interest of Religion, being the Plurallist cannot supply his Cure but by one qualified, and the Bastard might be a good Man, and good Preacher. 
L. Vaughan, f. 344, 345, 346, 347.  And yet even these would fall within Lord Vaughan's acceptation of his own Rule; for he shows, That Laws made for the benefit of but part of the Kingdom, Artificers, and Husbandmen, cannot be dispensed with to any one Person, to frustrate the Ends of the Statutes.  
This leads to another Flourish which he makes with the Lord Vaughan's Authority, in answer to the Objection, That the Law was made pro bono publico, 
Account, p. 22.  and was highly necessary for the Public. Indeed Lord Vaughan will have it, that the sole Reason why a Statute cannot be dispensed with, is not, that the Law was made pro bono publico, because all Laws were made for Public good; and yet Dispensations had been allowed in some, nor was the Degree of Public good that which altered the Case; yet he shows, that the Extent of it does: and seems still to keep to Cook's Rule, Where the People had entrusted the King with the Law, as Head of the complicated Body, there the Trust was entirely in him; but when the Law extended in Interest not only to individual Persons, but to a considerable part of the Nation, much more when to all, in either of which Cases the Statute is pro bono singulorum populi, in neither of these can the King dispense. And that the Statute in question is of the largest extent, appears, as the Nation is a Protestant Nation, this the Religion established by Law, and these Provisions necessary Means to preserve it; and therefore tho' the Papists have no benefit by it, they are not in Law, in this respect, any part of the People; for People always is taken for them that have Legal Interests. Thus when the Statute provides, 
2 Inst. f. 559.  That the People of Counties shall choose their Sheriffs, it relates not to all the People in general, but only to Freeholders.  

2dly.  Having thus shown, That those Grounds which our Judge pretends to have gone upon, afford no Countenance even to his Palliation of the Judgement, they will appear much less to countenance it as it was delivered; which to evince, I shall here set it down ipsissimis verbis, from that faithful Reporter Mr. Blaney.  
It was on that memorable Day when, as another mark of his Sincerity, he directed the willing Jury, and concurred in the infamous Sentence against that excellent Author Mr. Johnson; when the Jury was gone out, the Chief Justice took occasion to inveigh against spreading of Scandalous Reports about Cases depending in the Court; and to prevent any thing of that Nature in the Case of Sir Edward Hales, he thought fit to deliver the Opinion of the Judges in this manner.  
C. J. In the Case of Godwin and Hales, wherein the Defendant pleads a Dispensation from the King, it is doubted, whether or no the King had such a Prerogative? Truly, upon the Argument before us, it appeared as clear a Case as ever came before this Court: But because Men fancy I know not what difficulty, when really there is none, we were willing to give so much Countenance to the Question in the Case, as to take the Advice of all the Judges of England: They were all assembled at Serjeants-Inn, and this Case was put them, and the Great Case of the Sheriffs was put, whether the Dispensation in that Case were Legal, because upon that depended the Execution of all the Law of the Nation? And, I must tell you, that there were then Ten upon the place, that clearly delivered their Opinions, That the Case of the Sheriffs was good Law, and that all the Attainders grounded upon Indictments found by Juries returned by such Sheriffs, were good, and not erroneous; and consequently, that Men need not have any Fears or Scruples about that Matter. And, in the next place, they did clearly declare, That there was no imaginable difference between that Case, and this, unless it were, that this were the much clearer Case of the two, and liable to the fewer Exceptions. My Brother Powel said, he was inclined to be of the same Opinion, but he would rather have some more time to consider of it; but he has since sent by my Brother Holloway, to let us know, that he does concur with us. To these Eleven Judges, there is One Dissenter, Brother Street, who yet continues his Opinion, That the King cannot dispense in this Case: But that's the Opinion of One single Judge, against the Opinion of Eleven: We were satisfied in our own Judgements before, and having the Concurrence of Eleven out of Twelve, we think we may very well declare the Opinion of the Court to be, That the King may dispense in this Case; and the Judges go upon these Grounds.  
1. That the Kings of England are Sovereign Princes.  
2. That the Laws of England are the King's Laws. 
So Sibthorp, Rushworth vol. 1. p. 422.   
3. That therefore, 'tis an Incident inseparable Prerogative in the Kings of England, to dispense with Penal Laws in particular Cases, and upon particular necessary Reasons.  
4. That of those Reasons, and those Necessities, the King himself is sole Judge: And then, which is consequent, upon all,  
5. That this is not a Trust invested in, or granted to the King by the People; but the ancient Remains of the Sovereign Power, and Prerogative of the Kings of England, which never yet was taken from them, nor can be. And therefore such a Dispensation being pleaded by the Defendant in this Case, and such a Dispensation appearing upon Record to come time enough, to save him from the Forfeiture, Judgement ought to be given for the Defendant, quod querens nil capiat per billam.  
'Tis evident, that these Propositions are very wide from any thing he has, or could have urged from the Books, unless where a Brand of Infamy has been set upon the Judges. The Examples of which, made in several Ages, one would have thought, might have given sufficient Caution; yet, indeed, he might have had enough of this kind from those of the other Gown, who, I think, are now pretty well ashamed of these Notions. Whatever Power of Dispensing the King has, the Books suppose it to be entrusted by the People; but according to this Resolution, it came down from Heaven the Lord knows how: And as he goes upon the Supposition of an Absolute Sovereignty in the King, 

V. Case of Resistance, p. 200. See there such a Sovereignty as makes laws, can repeal, and dispense with them.  
Fortescue, p. 32. Ad tutelam namque legis subditorum, ac eorum corporum & bonorum rex huj●smodi erectus est, & ad hanc potestatem a populo effluxam ipse habet quo ei non licet potestate aliâ suo populo dominari.  
See this condemned 13 & 14 Car. 2. c. 29. V. Bushw. part 2. f. 608.   inseparable from his Person, as such will have it, unless that be granted, all that he builds upon it are but Castles in the Air: For this we are to have recourse to our Constitution, to see what that Power in the Prince is; which, the great Fortescue says, is, à populo effluxa, derived from the People. But for that we have no occasion, from any so much as pretended Proof of his Assertions; nor can any be offered but from the Resolution of the infamous Ship-money-Judges, which seems to run parallel to this, but is indeed far short of it: For tho' they made the King the sole Judge of the Kingdom's Necessity, yet they supposed it to be at a time when there was a real Danger to be prevented by the exercise of this Judgement; whereas here it is abused to the bringing in what the Parliament laboured to prevent.  
But I must observe, 
Vid. Account, p. 37.  1. That whereas Sir Edward Herbert owns the Dispensing Power to be of dark Learning, and that it is very fit it should receive some Light from a Determination in Parliament, that Judges may judge by more certain Rules, which Acts of Parliament the King may, and which he may not dispense with. Grant his Premises, and there can be no Darkness in it; for the Power will extend to all Cases, as far as the Legislative does; and that he has determined positively in this Point, 
Account, p. 8.  when he makes all things not forbid by God's Law, to be dispensible by the King; nay, if he might dispense with every malum prohibitum, that is not malum in se, without such Qualification as I have shown aught to be, it would go farther, even as far as God's Power, 
Vid. Grot. de Jure Belli & Pacis, l. 1. c. 1. Sicut ut bis duo non sint quatuor ne a Deo quidem effici potest; ita ne hoc quidem ut quod intrinsecâ ratione malum est malum non sit.  who never dispenses with more than his own Positive Laws, not such as are founded upon Eternal Reasons: And thus the Positive Laws of God and Man would be subject to the Pleasure of the Prince. 2. He has taken it out of the Power of the Parliament, to settle the Bounds of this extravagant Power: For, what he ascribes, he says, never was taken from the Crown, nor can be; because, forsooth, 'tis the ancient Remains of the Sovereign Power, and Prerogative of the Kings of England. Wherein, by the way, there is an Implication contrary to what he would infer; for this implies, that 'tis but the Remains of a Power diminished and impaired. 3. His printed and parol Resolutions are not only very different, as is obvious by the Comparison, but very contrary: 
Account, p. 37.  One says, 'Tis a dark Learning; the other, The Case is as clear as ever came before the Court.  

3dly.  Tho' his Insincerity is sufficiently evident from every part of his Defence, yet it may not be unprofitable for the Public, that he should be followed to those Instances in which he glories; for which, 'tis not enough for him to show some one Act wherein he is singular, if he follows the multitude to sin in others, even of the same kind; which if he does, he can no more acquit himself of Perjury and breach of Trust, 
Account, p. 1.  than the rest of the tainted Herd.  

Account, p. 28.  In Matters of Blood, he affects the Reputation of great Tenderness, and thinks he has been scrupulous even to a Fault: For, says he, in some Cases upon Statutes, that had been adjudged Felony by wiser and better Judges than myself, and it was highly for the King's Service that it should be so, yet I would never give Judgement of Death, because I could not satisfy my Conscience, that those Statutes were now in force. It is a Fault, it seems, not to give Judgement against his Conscience, when the narrow Interest of the Court exacts it, and other Judges, influenced from thence, would countenance it: But we may observe, that those Statutes concerning Soldiers, 
The Case Crook Car. 51. & Hutton 134. is of one pressed to serve beyond Sea.  of which he is to be understood, not only give no Warrant for such Judgement, as is obvious to the meanest Capacity; but if they could admit of any Question, the unbiass'd Judgement of the then Recorder of London, Sir John Holt, aught to outweigh the whole Bench.  
But I wish our Chief Justice could as well acquit himself in the Case of the Lord Brandon. The Father's Heroic Merits of the Crown, too great to be rewarded, and the Son's Hereditary Valour, dangerous to those who had reason to fear brave Spirits, occasioned the rigorous Prosecution of both. The Father was obliged to change his Soil, till it might become more equal, not unmindful of our Saviour's Advice, or rather Precept, when persecuted in one country, to flee into another, that tho' he contemned Death, he might not provoke it. 
Witness the great endeavours to make him confess a Plot, while he lay under Sentence of death.  The Son falling into their Hands, both his Life, and Honour, which the severest Trials approved to be most valued by him, were designed for a Sacrifice. In subserviency to which, our Chief Justice directed the willing Jury to find him guilty of High-Treason, chiefly upon a supposed Conspiracy, to seize the Castle of Chester; which, if true, were but Felony by a Statute, 
Vid. 14 Eliz. c. 1. Rastal f. 411.  as to that part, yet in force, and so could be no Evidence of Treason: Nor would he suffer the Fact to be found specially, though he pretended not to answer the Cases and Records which were cited to show, that the Matter alleged could not be Treason; nor did the then Solicitor undertake the Task, notwithstanding that show of Reasoning, with which he laboured to set aside the Authority of Lord Cook 
* L. Russel's Trial, f. 57 Sol. To conspire to levy War, is an Overt Act to testify the Design of the Death of the King; and the Error of my Lord Cook has possibly misled my Lord. This he goes to refute by the Cases of Story and Lord Cobham, which were not of levying War within the Kingdom, and besides were expressed by the Overt Act of Writing. Vid. 3 Inst. f. 14. Hales his Pleas of the Crown, p. 13. Dyer, f. 298. b. Sanderson's Hist of K. James, f. 283. , pleading expressly and unanswerably for that injured Hero, of whom the Age was not worthy, the Lord Russel.  
Nor was the Proof in Lord Brandon's Case, less defective than the Matter; for besides the scandalous Sexton, who swore to Designs against another King, there was but one Witness in the Eye of the Law; he indeed so far Legal, as that he might be heard, being an Approver 
* Lib. Assiz. 27. pl. 29. Of an Approver Shared, says, Il ne duist, passer sans estre duement purge car tout sont en male. ; but no way credible, considering how far he had been drawn with his Fetters about his Heels, even to 
* At Lord Russel 's Trial, I am not certain whether I did hear something about a Declaration, etc. Trial, f. 39 At Mr Cornish 's, è contra.  contradict himself. The other by no means Legal, being under an Outlawry for High Treason, unreversed: For tho' the Execution of that Judgement, for so in Law it is, was pardoned by the King, yet the Crime was by no means purged, to set him right to Fame: Which tho' the Counsel offered to make good, they were not suffered to speak to it; and yet the Point is very 
† That such are not probi & legales, for Witnesses or Juries, vid. 2 Bulst f. 144. alias 154.1. Brownlow p. 34. part 2.47. Rolls. Ab. tit. Chal. 657. Brook tit. Tesmoins, penult. Fitzher. tit. Process, 208. Dyer f. 34. a. Owen f. 22. Castle. main's Trial f. 38.11 H. 4. 41. b. Godbolt 288. Fortescue p. 60. b. Fleta lib. 4. c. 8. Bracton de Coronâ, cap. 3. p. 118. b. Rolls Ahr. tit. Prer. f. 222. Vid. de eodem Baluzium, Tom. 1. f. 887.2.362.  clear by ancient Authorities, and confirmed by later, without any thing really to the contrary. Nay, farther, tho' besides all these things, another Matter was urged in Arrest of Judgement, upon which Judgement had 
* Arundel's Case, 6 Rep. f. 14.  formerly been arrested; yet, without enquiring whether the Fact were true, or the Book Law, that, with the rest, was overruled, to come at the Life of a Person obnoxious to the Government, as some called themselves. Such was Sir Edward's great scrupulousness, and tenderness, where the Life of Man was concerned.  
He adds a Scruple, in a Case before himself, and the other Usurpers of the High-Commission Court; but his singularity therein can be no Excuse for his acting at all upon a Commission apparently against the Statute, which took away not only the Power of Fining and Imprisoning, which that Court illegally pretended to, but the Spiritual Authority which it really had; 
26 H. 8. c. 1. repealed 1 & 2 P.M.  and such a Commission it was, as never received countenance till the Act, long since repealed, which not only made H. 8. Head of the Church, but gave him Power, which he afterwards delegated to Lord Cromwell, 
V. 31 H. 8. c. 10.  to redress all Errors, Heresies, and Abuses, by Spiritual Authority.  

4thly.  I suppose it is by this time pretty evident, that Sir Edward's Crime will admit of no Extenuation; but the Aggravations are many, it appearing,  

Account, p. 37.  1. That he and his Brethren were the Inventors of this Dispensing Power, in such extent as he contends for in the Print; but much more in his real Resolution.  

Vid. ib.  2. That the Error was not an Error in that single Case, but of large and mischievous Consequences; and if the King could dispense with that Statute, upon the Reasons given, and Circumstances appearing in Sir Edward Hales his Case, others may well conclude from thence, That therefore he has a Power to dispense with all other Statutes, even such as confer or vest in any of the Subjects any manner of Interest whatsoever, in their Lives, Liberties, and Estates; 

Account, p. 37.  
Vid. supr. p. 40, 41.   and there being a Conviction, and consequently a Disability actually incurred before the Dispensation; therefore, by reason of this Case, the King may dispense with such Statutes where a precedent Disability is actually laid upon a Man, as there is upon the Members of both Houses, till they have taken the Oaths and Tests prescribed. These are not Consequences which may flow from the heated Imaginations of angry Men, but such as have Warrant and Foundation from their Judgement.  
3. His so far undervaluing the Wisdom of the Nation, as to make the benefit of a Law against the undue continuance of Sheriffs, equal, nay, go beyond what they could devise for the security of their Religion; or rather, so to undervalue the Holy Religion, which I think he yet professes, when however it would not come up to the Point, according to the Differences which himself receives. 
Account, p. 9  Speaking of the Statute 23 H. 6. c. 1. he says, The Recital in the Preamble, and the whole Purview, if compared with our Statute of 25 Car. 2. c. 2. equals it in every Particular, and in some goes beyond it: For the Mischiefs recited in this latter Statute, are only in these Words, For preventing Dangers which may happen from Popish Recusants, and quietting the Minds of his Majesty's Good Subjects: The other, 
pag. 10.  for preventing the importable Damage of the King, and his People, by Perjury, Manslaughter, and great Oppression. Then he goes to the Purview, express against Non obstantes, and creating a Disability; but, according to his usual haste, he stays not here to make the Comparison, but hastens to his Sham-Resolution, as has been sufficiently evinced already. The Questions here will be, 1. Whether the Mischiefs intended to be prevented, are equal in both? 2. Admit they were equal in Degree, whether they are in Extent; which if they are not, still the Resolution, if real, will fail him, according to the Difference which he himself receives, 
Vid. sup. p. 43.  of pro bono populi complicati, and singulorum populi.  
1. For the first, I suppose he thinks the Epithet importable gives the odds, as if Popery wanted an Epithet to represent it to Protestants, for what they ought to do their utmost to prevent; as if it did not carry in the Belly of it Perjuries, Manslaughters, and great Oppressions, by wholesale; or that Mischiefs more remote, and accidental, as the Continuance of Sheriffs, may habituate to Corruption, and that occasion the other fatal Train; could equal the more immediate and certain Consequences, unless by good Laws prevented, of French Conversions, proceeding from fixed Principles. But then to give Judgement to frustrate this necessary Law at a time when the Papists had a King of their own Superstition to head them, is to make the King as much above the Law, 
Bracton l. 2. c. 16. Rex habet Superiorem, Deum S. item legem per quam factus est Rex, item Curiam suam, viz. Comites, Barcnes, quia Comites dicuntur quali socii, etc. Fleta l. 1. c. 17. p. 17.2. has Superiores. Which avoids the Cavil in the Royal Apol. ed. Anno 1684. p. 36. supposed to be Dr. ashton's.  as our ancient Lawyers tell us, the Law and his Court by way of Eminence, that is, the Great Council, or Parliament are above him.  
2. As this proves the Interest of the Subject, in the Law about Sheriffs, to be neither equal, nor so immediate, as in our Statute, there needs not many words to show the difference of the extent: the Peace only of particular Counties, and tha● by small insensible degrees, is there concerned, nay, admit the King had this Power, and should so violate that Trust which Sir Edward will have to be reposed in him, 
V. Account. p. 23.  as to extend it to all Counties where he puts in the Sheriffs; yet this could not affect all the People, because there might be a Retreat to London, Middlesex, and Westmoreland, in neither of which has it been pretended, that the King had such a Power, till the late Violence of some, and Treachery of others, gave that unhappy Inlet of Perjury, Manslaughter, I may say, Murder and Oppression; before which, London was a perfect Goshen in an Egyptian Kingdom.  
4. But what can excuse our Chief Justice's so apparent falsifying both Records and Law-books, or if not, at least, his shameful Negligence in not going to the Fountain-heads, but setting up the Recitals of Cases against the Cases themselves; and the extrajudicial Opinions or Arguments of Judges, nay, the very Annotations of Reporters, foreign to any matter in question, against solemn Resolutions; which either wilful Falsifications, or criminal Negligence, has occasioned the answering Objections with a Case which never had a Resolution, but what he and his Brethren, gave when it was brought in by Head and Shoulders, only to be a leading Case to this.  
5. He could not but know, that the Case was faintly argued against Sir Edward Hales, either he, or the late Empson and Dudley, having given the Fees on both sides; wherefore 'twas comical for the Chief Justice to say, That the Case appeared clear upon the Argument; I am sure he is inexcusable, that when Causes of less Consequence, and of less dark Learning, used to be argued twice at least, this was but once; and the learned Mr. Wallop, who could have set it in the truest light, was refused to be heard to it, tho' he required it.  

V. Sup. p. 6.  6. Our Chief Justice might easily have found, that the beginning of Non obstantes was within time of Memory, which would not be enough to entitle the King to a Prerogative: 
Plowden of Mines, f. 322.10.  For as 'tis in Plowden, every Prerogative contains a Prescription, for it rests in usage; that is, such as are not derived from known Grants of the People. And he might have learned from that Great Man, whom he would fain draw to his side, 

Vaugham, f. 419.  
Nota, this was in a Case of less consequence the sending Process into Wales.   That Precedents are useful to decide Questions, but in such Cases as these which depend upon fundamental Principles, from which Demonstrations may be drawn millions of Precedents are to no purpose.  
Time of legal Memory is well known to extend to the Reign of R. 1. and tho' Non Obstante's, as I observed above, 

Brook Prescrip. n. 6. Stat. West. 1.3. E. 1. c. 39 Stat. de quo Warranto, 18 E. 1.  
Prin's Animad. f. 133.   are complained of within that time, as early as 35 H. 3. yet that diligent and faithful Searcher into Antiquity Mr. Prin, shows, That they were then made use of, only to revoke some indiscreet Grants or Privileges, but not to elude, subvert, or dispense with any Penal Laws, or Acts of Parliament, till they were introduced by religious Persons, after the Statute of Mortmain, 7 E. 1. to elude and frustrate the Act. And if this be true, I am sure thus far there is no Colour for the late Resolution; for they might have seen in Lord Vaughan, That the King in that Case dispenses only with his own Right, 
Vaughan f. 356.  and concludes not the mean Lords.  

Vid. è cont. Dr. Brady's complete Hist. dedicated to K. James 2. Pref. All the Liberties and Privileges the People can pretend to, were the Grants and Concessions of the Kings of this Nation, and were derived from the Crown. Founded upon his supposed proofs that W. 1. obtained this Land by conquest, and governed it accordingly. V. Brady's first Book p. 23. in Marg. refuted in Jus Anglorum. Account p. 8.  Tho' successive Resolutions of Judges are but Evidences of the Law, and such as are to be examined and rectified by the Constitution, and fundamental Maxims of the Inherent Rights, and Liberties of a freeborn People: Yet if Sir Edward had had the diligence to read what might have occurred on this Subject, or the Honesty to hear it from others, he might have known, that it is far from being a settled Point, That the King might dispense with particular Persons as to whatever is not prohibited by the Law of God; and that his Dispensation makes the thing prohibited lawful to be done by him that has it. The farther we look back since this Power has come in question, the less does it seem allowed.  

V. Sup. p. 5. V. Rolls ab. tit. Prer. f. 180. 34 E. 3. c. 21.  Edward 3. with the Assent of that Council, which, as I observed before, was chose in Parliament, had granted to Merchant's Denizens, for a time, the same Liberty about Staple Commodities which Merchants Aliens had; tho' this was not by the King alone, and for the Benefit of Natives, yet the Merchants fearing that they might be impeached in time to come for their Merchandise which they had so passed by virtue of such Grants; for as much as they were made out of Parliament, for their Surety, obtained a Ratification and Confirmation in Parliament.  
But the vexata questio was about licensing the shipping of Wool elsewhere than at Calais; 
Nota, This is one of the Cases mentioned by Fineux, Sup. p. 12.  that the King might do this, the Pretence was specious. Calais was no part of the ancient Demeasn of the Crown, but a new Acquisition, whose Interests the King seemed to have more absolutely at his Disposal, 
Anno 1667.  according to the Resolution of our Judges before the House of Lords, 
V. 3 Jac. c. 6. forbidding Trade to the Dominions of Spain.  who declared, That tho' the Canaries were the Dominion of the King of Spain, they were no part of the Dominion of Spain. And if Sir Edward had taken notice of Lord Cook where he is against, as well as where he seems to favour him, he ought to have observed, That one Lions a Merchant, 
3. Inst. f. 186.  and Lord Latimer were sentenced in Parliament for procuring of Licenses and Dispensations for transporting of Wool: And this they laid to the Destruction of the Staple, 
Rot. Parl. 50. E 3. n. 17, 24, 28.  and of the Money of Calais, to the great Damage of the King and Realm: Indeed the year after, the Lord Latimer's Sentence is remitted at the Request of the Commons, alleging that the Charge against him was not true, not for defect of matter. 
51. E. 3. n. 75.  So that here is a Judgement of the House of Lords in Point, against one of those very Cases; upon which Court, Judges have since founded their Distinction of malum prohibitum, & malum in se: 
V. Account p. 8.  And it is an easy thing to know which ought to turn the Scale.  

37 H. 6. f. 4.  After this, it came to be a Question before all the Judges in the Exchequer-Chamber, Whether this Offence being pardoned (which that the King might do after it was committed, has not been disputed) the Pardon before an Information brought, would defeat the Informer of his share. There the Court held, That if the Suit were the Parties, the Pardon should not bar him; but the sole Question was, Whether the Party was entitled to any Suit, being the Advantage was given to the Discoverer, 
This notrightly abridged by Brook tit. Charter de Pardon, n. 24.37 H. 6. f. 5. a. adjornatur.  which he might have by a Suggestion in the Exchequer, but the Statute gives no Action; however this received no Determination at that time.  
But if the Question had then been of a Dispensation, and whether that would bar the Informer's Action given by Statute, can any man doubt but that they would have adjudged it could not? When notwithstanding a Pardon, and that in a Case where an Action was not expressly given; yet it was so doubtful, that they would not determine against the Informer; but that the Dispensation would not have availed with them, or at least, they would not have looked upon it to authorise what was prohibited by any Statute, appears from other Passages there; as where it is said, 
37 H. 6. 46. V. 5 E 4 f. 34. a. Where a Statute concerns only the King himself, which the King may choose to use at his Will, etc.  That in a Recognizance of the Peace (which is not confined to one entered into at the request of a Subject) the King cannot pardon, or release, till the Peace is broken: And where a man ought to repair a Bridge, the King can pardon only for the Fine due to himself; but however, the Party shall be obliged to repair the Bridge, because this is to the Damage of all the People. And to the same purpose is that 3 H. 7. that though the King may pardon, 
3 H. 7. f 15. b. Chief Justice Hussey citing Fortescue.  or free from a pecuniary Mulct before the occasion happen, yet he cannot pardon, or discharge the Trespass itself; and instance is given in voluntary Escapes: So far were they from believing, that the King in remitting the pecuniary Mulct, could make the thing lawful; nor could this in the least be inferred from the other, because however an Act may be made void or tortuous. Indeed in the Reign of R. 3. whose Character blemishes the Judgements of his time, 
2 R. 3. f. 12.  it was held by all the Judges in the Exchequer-Chamber, that the King might licence the shipping of Wool elsewhere than at the Staple; yet even they were not of Opinion that the Licence made the thing lawful, for then the Discoverer could not have had his share, which they agreed that he ought to have; and so the Licence was only as far as it concerned the King. They also settled the other Point, 
If any one doubt this upon the words of the Book, it appears beyond contradiction from its being brought about again by the Merchants whose Goods were seized. 1 H. 7. f. 2. b. & 3. a. V. Sup. p. 13.  which before was a Doubt, That a Pardon before an Information brought, would defeat the Informer. But then the Authority of the first Point is suspended, by a Doubt remaining before all the Judges afterwards assembled upon a rehearing of this Cause in a more settled time. Indeed they agreed the other of an Information after a Pardon, but hitherto there is no manner of Proof of any Case, wherein the King by his Dispensation could discharge the Penalty given not only to himself, but also to an Informer, who has his Action given by Statute: But for this we must take a Leap downwards as far as 13 Jac. 1. which we may balance with the 7th. of his Reign, 
3 Inst. 154.  when it is held by Lord Cook, That where a Statute concerns the Benefit of the King alone, he may dispense with it by a Non obstante: And BY THE COURT, that where it concerns the Benefit of the Subject, the King cannot dispense. 
Rolls Ab. tit. Prcr. f. 179.   
7. Whereas our Chief Justice thinks that a Statute's providing against Non obstantes, shows that the King could otherwise have dispensed with the Act by a Non obstante; 
Account p. 10.  it is not only unconcluding, because it might be no more than an Argument of an Abuse of the Law; but turns very strong against him: 
V. Sup. p. 36.  For, admit the Resolution of the Judges, 2 H. 7. were as he contends, yet he, who makes so much of a Concession of the Commons of England assembled in Parliament, when he thinks it of his Side, 
Account, p. 25.  ought surely to yield that the Judgement of King, Lords, and Commons, is of uncontrollable Authority. Wherefore when not only one, but several Parliaments provide, that all Non obstantes shall be void, is it not plain, that their Judgement was, that such Non obstantes could not be set up by any Resolution of Judges? And for this we have the Judgement of King, Lords, and Commons, and that of but late days, That even where a Grant is made to the King, where 'twill be said he is solely entrusted for the Public Good, yet it may be out of his power to defeat it by a Non obstante. 
According to Kieble, c. 7. but not printed there.  This appears by the Statute 19 Car. 2. c. 8. which provides, That no Letters Patents granted to any Person, of Exemptions from Subsidies, etc. shall free them from the Charges of any Sum granted by that Act; and all Non obstantes in Letters Patents made, or to be made in bar of any Act or Acts of Parliament, for the Supply or Assistance of his Majesty, are thereby declared to be void and of none effect.  
And even where Statutes have not expressly provided against Non obstantes, tho' the Statutes were such as restrain what many take to be the King's Prerogative, yet if we receive the Sense of Lords and Commons, the King has no Prerogative warranting Non obstante's to them; as appears by the Articles against King Richard the Second, 

Vid. the Stat. barely prohibitory.  
28 E. 3. c. 7. & 12 E. 3. c. 9 supr. p. 16. V. Knighton.   one of which is, For that the King, contrary to the Laws, and Wills of the Justices, suffered Sheriffs to continue longer than one Year, etc.  
This were enough to set aside all Pretences taken from Calvin's Case, tho', as Sir Edward Herbert pleasantly suggests, 
Account, p. 18.  it were resolved there, That that was resolved 2 H. 7. which was never mentioned till after the Resolution. Here is the Authority of Lords and Commons, in competition with that of Mercenary Judges: And if the Concessions of the Commons alone assembled in Parliament, 
Account, p. 25.  are of weight with him, I know not why their Denials ought not as well to be urged against him; which if we may do, not only the Fictions and loose Reasonings in Calvin's Case, 
See them censured in Vaughan, f. 227, 285, 401.  but the main Resolution there, may be justly called mere Court-Law. Such I am sure it is, 
Moor a. f. 790, to 805.  that the honest House of Commons, 4 Jac. 1. would not bear it; and any one that reads the Arguments of those Learned Men who managed the Conference with the Lords, upon the Question of the Union of the two Kingdoms, may easily see how inexcusable the Judges of that time were, to proceed to the Judgement in Calvin's Case, after they had been so enlightened. Nor could they but know, that the then Parliament was broke up, because they were not so complying, as the Judges showed themselves both then and afterwards: But they secured their Cushions by it, while Sir John Bennet, 
Vid. his Censure. 4 Inst. f. 336.  Father of the present Lord Oswalston, lost his in the Prerogative-Court, and had a swinging Fine imposed upon him into the Bargain, several Years after, upon pretence of Extortion; but, as I am well informed, the real ground was, his disrelishing Speech in Parliament upon this Subject. 'Tis well known, some Princes used to have good Memories that way. Manet altâ ment repostum, etc.  
8. Non obstantes having no other Foundation than in the Encroachments of Princes, and Servility of Judges, especially if we except Cases concerning the King alone, they ought not to be strained to any new Case: The Advice of Bracton will rise up in Judgement against such Men, who tells them, 
2 Inst. f. 408. Bracton, l. 1. c. 2. Si autem talia nunquam prius evenerint, & obscurum & difficile sit, eorum judicium tunc ponantur judicia in respectum usque ad Magnam Curiam. Vid. 1 E. 3. 7. b 33 H. 6. 18. a, Cest un Act de Parliament & nos voilomus estre bien avis devant que nous adnullamus ascun act fait en le Parliament & peradventure le matter doit attender jusque all prochein Parliament.  If such things never happened before, and the Judgement is without Light from former Cases, and difficult, let it be adjourned to the Great Court. According to which, Adjournments to ensuing Parliaments have been frequent in former days, when there were more Learned Judges, and that as often for the weightiness of the Matter, as intricacy of the Points.  

Account, p. 34.  9 But for the closing Aggravation; Whereas our Chief Justice denies all indirect means for procuring Opinions, and stands upon his Innocence, challenging the World to lay any thing of that kind to his charge; I think, by this time, few will the less suspect him, because of his Assurance: if either Threats or Solicitations can be proved upon him, the World will judge either of them indirect Means; and I am much misinformed, if both cannot be justly charged.  
If after all, he can excuse himself with renouncing Infallibility, 
Account, p. 35. pag. 36.  and making Asseverations of keeping to the clear Dictates of his Conscience, I must say, Judges in former Ages have had hard luck, and been made Examples to little purpose. 
V. Mirror, a. p. 296. to 300.  King Alfred would lose the Reputation of his Justice, in hanging above thirty Judges; and Parliaments have been very barbarous to proceed against others as Traitors, who yet either were so ingenuous to confess their Faults, or, at least, not so provoking as to justify them.  

Tresylian, Bealknappe, c.  It is well known in Story, that six Judges, and two of the King's Council at Law, suffered for Treason, upon a Parliamentary Prosecution, 11 R. 2. for delivering their Opinions, That they were to be punished as Traitors, 
Knighton, f. 2726, 2727. ib. f. 2695. Regaliam. Ib. f. 2694.  who hindered the King from exercising his Sovereignty and Prerogative over a Statute, and an Ordinance, and Commission made in the foregoing Parliament: The substance of their Crime lay in ascribing to the King a Power to defeat the Provisions of the Parliament for the safety of the Nation, and is a direct Precedent, at which our Judges ought to tremble. Nor can it avail them, that the express words of the Statute 25 E. 3. c. 2. do not condemn them, since that Act transmits' Common-Law Treasons to the Judgement of Parliament, and the Statute 1 Mar. c. 1. leaves that power untouched; and who can doubt but such a Resolution, and that justified in Print, and published to the World, is an overt Act of Treason, as it tends to the subverting the Fundamental Rights of Parliaments: Nor can they have any colour for ask, with the Lord Strafford, Where is the Buoy? when they see so many Shipracks to admonish them.  
Nor ought Sir Edward to wonder at a Treason against the Government, tho' not directly against the Person of the King, his Relatives, Officers, or his Coin; nor yet an actual levying of War within his Kingdom, 
V. Glanvil. p. 1. Crimen laesae Majestatis, ut de niece vel seditione personae Domini Regis vel Regni. Exact. Collect ed. Anno 1643. p. 35. V. Dugdale's cron. Ser.  or adhering to his Enemies; for he may find among the Articles against the Lord Kimbolton, and others, exhibited Anno 1641. by his Father then Attorney-General.  
That they have traitorously endeavoured to subvert the very Rights and Being's of Parliaments.  

Account, n. 33, & 39  But since Sir Edward pleads Conscience for what he did, and might have urged the Authority of Spiritual Guides, who would make the Scripture notion of higher Powers a sufficient Warrant for such a Judgement. I shall conclude with the good Queen Elizabeth Doctrine of the famous Bilson, afterwards Bishop of Winchester.  

Bilson of Christian Subjection, p. 280.  By Superior Powers ordained of God, we understand not only Princes, but all politic States and Regiments, some where the People some where the Nobles have the same Interest to the Sword that Princes have in their Kingdoms: And in Kingdoms where Princes bear rule by the Sword, 
Glanvil. Prol. Bracton, v. l. 3. c. 9 Fleta lib. 1. c. 17. Fortescue, c. 9 Mirror, p. 9  we do not mean the Prince's private Will against his Laws, but his Precept derived from his Laws, and agreeing with his Laws.  
FINIS.   

Published by this Author.  
A Poetical Essay towards an Epitome of the Gospel. Ed. Anno 1678.  
Jani Anglorum facies nova. Anno 1680.  
Jus Anglorum ab Antiquo. Anno 1681.  
King Edward the six against the Pope's Supremacy, with Remarks on his Life. Anno 1682.  
Lord Hollis his Remains. Dr. Twisden's Considerations touching the Grand Question: With Reflections upon Antidotum Britannicum, and Mr. Hunt's Book and Postscript. Anno 1682.  
Anonymus his Letters to Dr. Sherlock, concerning Church-Communion: With a Reply to his Answer. Anno 1683.  
A Letter of Remarks on Jovian. Anno 1683.  
A true Account of the Unreasonableness of Mr. Fitton's Pretences against the Earl of Macclesfield.  
Grotius his Arguments for the Truth of the Christian Religion, in Verse: With an Appendix concerning Prophecies. Anno 1686.  
The Idea of Christian Love, and Paraphrase on Mr. Waller's Poem of Divine Love. Anno 1688.  
Ready for the Press,  
A Supplement to Dr. Brady's Introduction, and Complete History.