Notes upon yethe dispensing power.

The King has a prerogative in many cases to dispence wthwith Acts of Parliamtment but yethe prerogative is bounded by law & many Acts cannot in any sort be dispenced wthwith

As 1st yethe Laws wchwhich are against mala in se

23. The Laws of publick concernment wherein yethe people are interested. The King cannot dispence wthwith a law made for securing yethe liberty or property of yethe people &

32. The Laws concerning yethe Iurisdiction of yethe Admiralty

34. Statutes by in wchwhich any particular subject or subjects are actually interested before dispensation.

5 Statutes wchwhich actually absolutely & directly prohibit or enjoyn a fact on pain of disability cannot be dispenced wthwith after yethe disability attach't (as that of disability for 6 Nor before Simony 31 Eiz.Eliz. 6 & for buying of Offices 5 Edw. 6. for sitting in Parliamtment wthwithout taking the Tests) And this case yethe LdLord Chief Iustice Herbert granted.

6 Nor before without possession previous to yethe disability: for yethe reason why yethe kings letters patents will not discharge a disability is not because it is attacht sooner or later, but because it is a reasonable disability & therefore not to be dispenct with after yethe discovery of yethe defect. ffor New is a disability arising from a defect in the person wchwhich renders him unfit. And though yethe disability date of yethe Letters patents do precede yethe attachment yet yethe Letters actual dispensation precedes not because the person holds not by dispensation till he before the disability be attacht The person holds wthwithout a dispensation till he be attach't, & then yethe attachment (as in yethe former case) voyds yethe dispensation & wthwithout a dispensation & ynthen yethe dispensation wchwhich should actually actually be be put in act is voyded by yethe attachment preceding disability attacht as in yethe former case. & ynthen yethe attachment disability voyds yethe actually commencing dispensation as in yethe former case. And thô yethe letters Patents be dated before yethe disability & So in yethe cases of Simony & offices a license previous to sell would be as void as a dispensation pardon subsequent. And Thethe former case is seems yethe stronger of yethe two. ffor the King can pardon that he cannot license.

7 And this Nor in case of actual admission or possession previous to yethe disability. for were for ffor possession qualifies not an unfit person. ‡ ‡ And that authority wchwhich can disable an unfit person from admission can into any Office can equally disable him from holding it after discovery of his unfitness. Should a man – Should a man give by giving bond to resigne wthwithin a set time any Office or Living & thereby get into actual possession & then procure bya dispensation to buy of his bond, tis an act of yethe same nature with bargaining before possession, & is therefore equally capable of being restrained by law against dispensation

The King has a prerogative in many cases to dispense wthwith Acts of Parliament, as

1st Af A general law may be dispenced wthwith in particular cases wchwhich are not mala per se nor lye not against yethe reason of yethe law. As when Q.Queen Eliz.Elizabeth dispenced wthwith yethe common prayer in latin to those societies who understood ytthat language the Colleges of Winchester & Eaton, the law it self allowing it to yethe Vniversities & private persons who understo in any language they understood. Also in Chancery yethe King by his Chancellor doth continually dispence wthwith yethe rigour even of yethe Common law in hard cases. ffor wthwithout such a dispencing power those 2dly laws might often prove inconvenient wthwith respect to persons time or place not foreseen by yethe Law makers. The King cannot take away yethe force of yethe law for any time but only 3dly dispense wthwith it in particular cases. I do not

2 Laws may be dispensed wthwith & transgrest Inin cases of necessity & this as well by the people as well in doing in acting as by the king in commanding. But thô such cases are limited & circumscribed wthwith divers by the following divers conditions For & particularly by the following two. ffirst a case cannot be necessary in this s wchwhich happens by yethe will of yethe King, or subject. as if ffor that wchwhich happens to yethe King by any mans by his own will & contrivance does not happen to him out of necessity. So officers yethe dispensing wthwith yethe Test to officers in yethe Army is not necessary is not necessary as well because tis only the Kings will & pleasure first to have any Army & then to have those officers rather then others. Secondly the necessity cannot hold longer then till yethe King has time & opportunity to convene a Parliament. ffor yethe reason of dispensing in such cases is because yethe Law-maker could not foresee & provide for such cases them & this reason holds no longer then till th a Parliament can be called convened. If therefore yethe King can call a Parliament & will not or if upon theire convening by reason of do not provide them yethe case be not propounded to them or they do not allow it the pretence of necessity ceases. For then its plain that they Thereby if yethe people be at yethe law, it must not Thirdly it must not be such a pretended case of necessity as yethe law-maker foresaw & provided against in yethe statute ffourthly if yethe law people were interested in yethe law yethe dispensation ought to be for their common good & not for yethe interest of yethe King alone against yethe peoples & therefore cannot be is not valid against their consent. ffor this would be to do yethe people a double injury. ffirst to spoile them of their interest in yethe law & then to do it in order to a further injury. And from all this its plain that yethe King is not yethe sole judge of cases of necessity. His Prerogative is bounded by law & he is not yethe sole Iudge of those bounds. If the any King shall say there's a necessity of raising money wthwithout consent of Parliament at a time when yethe nation sees not yethe necessity, or of condemning men without triall, or of altering yethe legal course of justice & setting up arbitrary Courts in civil matters, no to yethe danger of property, or of setting up an High Commission Court against law whereby any man whatsoever may be excommunicated & so lose his property for not obeying all his yethe King's commands: I tis not yethe King's pretending necessity ytthat will justify make these things legal & therefore yethe King is not yethe sole judge. All men may transgress yethe law as well as yethe king in cases of necessity & therefore are judges for their own actions in such cases as well as yethe King is for his, & yet have not a right to make every thing a case of necessity wchwhich they will call so. ffor on this principle any people may as well justify rebellion as yethe any King may oppression: wchwhich God forbid. The necessity therefore must be plain & [ffiftly yethe necessity must not be for carrying on designes in yethe ordinary course of polity but but extraordinary so ytthat if yethe an & extraordinary so ytthat if & extraordinary & such as may easily appeare to both parties to their common satisfaction. In

NB. In cases of necessity all men are equally soluti legibus soluti, & return into a state of nature. And therefore in such cases yethe liberty from yethe law it does not arise from yethe law of yethe land or from yethe Kings Prerogative that he is solutus legibus for then no man would be free from yethe Law in suc cases of necessity but yethe King. Nor does it arise from yethe law of yethe Land because it is a freedom from ytthat law by yethe necessity of transgressing it. Nor is it founded in any thing else then a necessity of transgressing the Corol 1 The dispensing power therefore is not founded in yethe prerogative law & acting by reason alone as in a state of nature, according to yethe vulgar So then yethe dispensing power i proverb, Necessity has no law.

Whence yethe dispensing power is not founded in yethe either in in such cases is no part of yethe law of yethe land nor of yethe Kings legal prerogative nor of yethe Law of yethe land stated by included in that law nor of any thing can be any thing else then a lawful can have any other foundation ynthan a law of nature necessity of being yethe Kings being lawless. So then we may dispute consider this power wthwithout medling with yethe Prerogative.

Now such a necessity as absolves a man from yethe law & justifies his transgressing it is always a dispensation from it & renders all other dispensations superfluous & impertinent & these Now If yethe necessity & null. ffor as a dead man cannot be killed so while yethe first dispensation is in force yethe law cannot be again dispensed with. So then yethe kings dispensing in cases of necessity is a contradiction. If in cases of necessity yethe King never dispenses & where So then if there be such a necessity as justifies yethe breaking a pping from yethe law yethe dispensation is not yethe Kings but created by necessity ytthat very necessity & if yethe necessity be not such, the King's dispensation grounded thereon is void Whence yethe kings dispensing in such cases is a contradiction. Such a necessity therefore excludes yethe Kings dispensing power by an antecedent dispensation & if it it be not such it does not justify that power & therefore yethe dispensing power in cases of necessity is a contradiction. And And if a contradiction may invalidate an Act of Parliament much more does it invalidate yethe opinion of yethe Iudges, [or rather yethe opinion of those who sought out such men for Iudges who would subscribe to this opinion.] Or if it does not invalidate it yet At least it makes it useless because (as we have shewn) there never can be a necessity of yethe Kings dispensing wthwith law. Where the law cannot be observed & there is a necessity of varying from the law same there needs no other dispensation. The King & people are so far at liberty to act at discretion for , but till then the peop The the law cannot be honoured & necessity it self dispenses & [can justify no man in breaking yethe law where it is not real where it does not yethe King cannot by virtue of it.

The King cannot absolve yethe people nor oblige from its observation 2 If Thethe King may command to break yethe law & represent it necessary; but yethe subject can is not to break yethe law without necessity, it will not justify him ytthat yethe King commanded unless yethe necessity be real

If yethe King can dispense wthwith yethe laws in cases of necessity, much more he can much more can he can make new ones in such cases. ffor necessity is universally cogent & is a sufficient reason for if real justifies the doing any thing, & cannot make new laws wthwithout yethe king though it may without him absolve from yethe obedience of suspend dispense from old ones. So when yethe English were Lords of ffrance & ffrench Parliaments could not convene for missing giving their king money, the ffrench laws & convening of Parliaments were suspended of necessity & it would have been impertinent nonsense superflous & impertinent for yethe French King to have put out an edict for dispensing wthwith them. But an Edict to this purpose would have been very proper, That seeing ParliamParliament was the laws could not proceed nor Parliaments convene & yet money was absolutely necessary for yethe preservation of yethe nation: he therefore required them to contribute &c. And if yethe people had not seen yethe necessity of such a contribution, they might have justly refused it. And yethe obligation of such an edict was would not have lain in yethe Kings prerogative or the authority of commanding dispensing power but in yethe apparent necessity of yethe thing for common safety ffor if yethe people had not seen yethe necessity th of yethe thing thereof they might have justly refused it.

3 In cases of necessity a men are not always bound to observe yethe law of God. David eat being an hungeredry eat yethe shew bread wchwhich was lawful for none but yethe Priests to do. Phinenenas ki killd Zimri & Cosbi against yethe 4th Commandmtment, yethe Maccabees upon compulsion fought on yethe Sabbath day, & Christ did miracles on yethe same day. Yet cannot yethe King or Pope dispense wthwith yethe laws of God in cases of necessity. The dispensation must arise from yethe necessity it self.