Notes upon the dispensing power
Notes upon ye dispensing power.
The King has a prerogative in many cases to dispence wth Acts of Parliamt but ye prerogative is bounded by law & many Acts cannot in any sort be dispenced wth {illeg}
As 1st ye Laws wch are against mala in se
2|3|. The Laws of publick concernment wherein ye people are interested. |The King cannot dispence wth a law made for securing ye liberty \or property/ of ye people &|
3|2|. The Laws concerning ye Iurisdiction of ye Admiralty
3|4|. Statutes by in wch any particular \subject or/ subjects are \actually/ interested before dispensation.
5 Statutes wch actually absolutely & directly prohibit or enjoyn a fact on pain of disability cannot be dispenced wth after ye disability attach't (as that of disability {illeg}for 6 Nor before Simony 31 Eiz. {sic} 6 & for buying of Offices 5 Edw. 6. \for sitting in Parliamt wthout taking the Tests/) |And this case ye Ld Chief Iustice Herbert granted.|
6 Nor before \without possession previous to ye disability/: {illeg} for ye reason why ye 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 ye discovery of ye defect. ffor New {illeg} |is a disability arising from a {de}fect in the person wch renders him unfit. And though ye disability date of ye Letters| patents do precede ye attachment yet ye Letters \actual/ dispensation precedes not because the person holds not by dispensation till he \before the disability/ be attacht The person holds wthout a dispensation till he be attach't, & then ye attachment (as in ye former case) voyds ye dispensation & wthout a dispensation & yn ye dispensation wch should {actually} \actually be/ be put in act is voyded by ye attachment \preceding {illeg} disability attacht/ as in ye former case. & yn ye attachment \disability/ voyds ye actually commencing dispensation as in ye former case. And thô ye letters Patents be dated before ye disability & So in ye cases of \Simony &/ offices a license previous to sell would be as void as a dispensation \pardon/ subsequent. \And/ The former case is \seems/ ye stronger of ye two. ffor the King can pardon that he cannot license.
7 And this Nor in case of actual \admission or/ possession previous to ye disability. for were {illeg} for \ffor possession qualifies not an unfit person./ ‡ ‡ And that authority wch 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 \wthin a set time/ any Office or Living \& thereby/ get into actual possession & then \procure by|a| dispensation to/ buy of his bond, tis an act of ye same nature with bargaining before {illeg} possession, & is therefore equally capable of being restrained by law against dispensation
The King has a prerogative in many cases to dispense wth Acts of Parliament, as
1st Af A general law may be dispenced wth in particular cases wch \are not mala per se nor/ lye not against ye reason of ye law. As when Q. Eliz. dispenced wth ye common prayer in latin to those societies who understood yt language \the Colleges of Winchester & Eaton,/ the law it self allowing it to ye Vniversities & private persons who understo in any language they understood. \Also in Chancery ye King by his Chancellor doth continually dispence wth {ye rigour} even of ye Common law in hard cases./ ffor wthout such a dispencing power those 2dly laws might often prove inconvenient wth respect to persons time or place not foreseen by ye Law makers. {illeg} The King cannot take away ye force of ye law \for any time/ but only 3dly dispense wth it in particular cases. I do not
2 \Laws may be dispensed wth & transgrest/ In 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 wth divers \by the following divers/ conditions For \& particularly by the following two./ ffirst a case cannot be necessary in this s wch happens by ye will of ye King, or subject. as if ffor that wch happens to ye King by any mans by his own will & contrivance does not happen to him out of necessity. So {illeg} officers {illeg} ye dispensing wth ye Test to officers in ye 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 {illeg} till ye King has time & opportunity to convene a Parliament. ffor ye reason of dispensing in such cases is because ye 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 ye King can call a Parliament & will not or if upon the|i|re convening by reason of {illeg} do not provide them ye 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 ye people be {illeg} at ye law, {illeg} it must not Thirdly it must not be such a pretended case of
{illeg} necessity as ye law-maker foresaw & provided against in ye statute ffourthly if ye law people were interested in ye law ye dispensation ought to be for their common good & not for ye interest of ye King alone against ye peoples \& therefore cannot be \is not valid/ against their consent./ ffor this would be to do ye people a double injury. ffirst to {illeg} spoile them of their interest in ye law & then to do it in order to a further injury. And from all this its plain that ye King is not ye sole judge of cases of necessity. His Prerogative is bounded by law & he is not ye sole Iudge of those bounds. If the \any King/ shall say there's a necessity of raising money wthout consent of Parliament at a time when ye nation sees not ye necessity, or of condemning men without triall, or of altering ye legal course of justice & setting up arbitrary Courts in civil matters, no to ye 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 ye King's commands: I tis not ye King's pretending necessity yt will justify \make/ these things legal & therefore ye King is not ye sole judge. All men may transgress ye law as well as ye king in cases of necessity & therefore are judges for their own actions in such cases as well as ye King is for his, & yet have not a right to make every thing a case of n{e}cessity wch they will call so. ffor on this principle \any people/ may as well justify rebellio{n} as ye \any/ King may oppression: wch God forbid. The necessity therefore must be plain & {illeg} [ffiftly ye necessity must not be for carrying on designes in ye ordinary course of polity {but} but extraordinary |so yt if ye an & extraordinary {illeg} so yt 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 \{illeg}/ a state of nature. \{illeg}/ And therefore in such cases {illeg} \ye liberty from ye law/ |it| does not arise from ye law of ye land or from ye Kings Prerogative that he is solutus legibus {illeg} for then no man would be free from ye Law in suc cases \of necessity/ but ye King. \{illeg}/ Nor does it arise from ye law of ye Land because it is a freedom from yt law by ye 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 ye prerogative law & acting by reason alone as in a state of nature, according to ye vulgar So then ye dispensing power i proverb, Necessity has no law.
Whence ye dispensing power is not founded in ye either in \in such cases is no part of ye law of ye land nor of/ ye Kings \legal/ prerogative nor of ye Law of ye land \stated by \included in/ that law/ nor \\of any thing/ can be any thing else then a lawful/ can have any other foundation yn {illeg} a law of nature necessity of being ye Kings being lawless. So then we may dispute \consider/ this power wthout medling with ye Prerogative.
Now such a necessity as absolves a man from ye law \& justifies his transgressing it/ is always a dispensation from it & renders all other dispensations superfluous & impertinent & these Now If ye necessity & null. ffor \as a dead man cannot be killed so/ while ye first dispensation is in force ye law cannot be {illeg} again dispensed with. So then ye kings dispensing in cases of necessity is a contradiction. If in cases of necessity ye King never dispenses & where So then if there be such a necessity as justifies ye breaking \a {illeg}pping from/ ye law ye dispensation is not ye Kings \but created by necessity yt very necessity/ & if ye necessity be not such, the King's dispensation grounded thereon is void |Whence ye kings dispensing in such cases is a contradiction. Such a necessity therefore excludes ye Kings dispensing power by an antecedent dispensation & if it it {sic} be not such it does not justify that power| & therefore ye dispensing power in cases of necessity is \a/ contradiction{illeg}. And \And/ if a contradiction \may/ invalidate an Act of Parliament much more does it invalidate {illeg} ye opinion of ye I{illeg}udges, [or rather ye 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 ye Kings dispensing| wth 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 {illeg} \so far/ at liberty to act at discretion \for {illeg}/, but till then the peop \The the law cannot be honoured & \necessity it self dispenses & [can justify no man in breaking ye law where it is not real \where it does not ye King cannot by virtue of it.///
The King cannot absolve ye people nor oblige from its observation 2 |If| The King may command to break ye law & represent it necessary; but ye subject can is not to break ye law without necessity, it will not justify him yt ye King commanded unless ye necessity be real
< text from f 1v resumes >If ye King can dispense wth ye laws {illeg} 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 wthout ye king though it may without him absolve from ye obedience of \suspend dispense from/ old ones. So when ye 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 ye \French/ King to {illeg} have put out an edict for dispensing wth them. But an Edict to this purpose \would have been very proper/, That seeing Parliam was \the laws/ could not proceed nor Parliaments convene & yet money was \absolutely/ necessary for ye preservation of ye nation: he therefore required them to contribute {illeg} &c. And if ye people had not seen ye necessity of such a contribution, they might have justly refused it. And ye obligation of such an edict was \would not/ \have lain/ in ye Kings prerogative \or/ the \{illeg}/ authority of commanding dispensing power but in ye apparent necessity of ye thing {illeg} for {illeg} common safety ffor if ye people had not seen ye necessity th of ye thing \thereof/ they might have justly refused it.
3 In cases of necessity a men are not always bound to observe ye law of God. David eat being an hungered|ry| eat ye shew bread wch was lawful for none but ye Priests to do. Phinenenas ki killd Zimri & Cosbi against ye 4th Commandmt, ye Maccabees upon compulsion fought on ye Sabbath day, & Christ did miracles on ye same day. Yet cannot ye King \or Pope/ dispense wth ye laws of God in cases of necessity. The dispensation must arise from ye necessity it self.
