IN 1689, following the success of the Glorious Revolution, the
Convention parliament abolished the royal dispensing power.
Englishmen rejoiced. “Now and perhaps only now we may call our
selves the Free-born subjects of England,” wrote John Somers,
“fully secured… from the heavy and insupportable yoke of
arbitrary power.”  There was good reason to rejoice; the
dispensing power in James II’s hands had proved a dangerous
thing indeed. The Catholic king had granted dispensations
freely, setting aside statutes to bring Catholics into his
service and, presumably, into his designs for absolutism. He
had used his power to defy the law and, more particularly, to
defy the Lords and Commons in parliament who made it. The rule
of law could not be assured, nor the supremacy of parliament,
while the king had a power to grant dispensations at his will
and whim. The abolition of the royal non obstante was
essential to the accomplishment and to the security of the
Yet, in 1689 not all Englishmen saw it so. There were insistent
voices in the Convention for preserving the power which nearly
everyone since and most even then regarded as a tool of absolute
monarchy. Why the objections, why the reluctance to abolish
what so clearly threatened the new order? Was there a lack of
confidence in the Revolution or in its aims? How in 1689 could
Englishmen still declare for the prerogative? How could those
who did not share such a view still respect it? These
questions, and answers to them,
version of this paper was read before the American Society for
Eighteenth-Century Studies Midwest Regional Meeting in Toledo,
Ohio, 30 October 1976.
Vindication of the Proceedings of the Late Parliament of
England. An. Dom. 1689. Being the First in the Reign of Their
Present Majesties King William and Queen Mary (London,
1690), p. 2.
derive in part from the character and the history of the
dispensing power itself, in part from the circumstances which
caused it to become a bone of contention and in part from the
special situation in 1689.
Briefly, the power of dispense was the power to allow exceptions
to the law, to permit what otherwise would be illegal, to grant
a subject license to act as if the law dispensed did not exist.
Its beginnings in England can be traced to the thirteenth
century; Henry III was the first king to dispense, presumably in
imitation of the Pope. There were limits upon the king’s power.
In some cases these are rather obscure, but, essentially, the
king could offer no exceptions to common law; he could dispense
only with such law as he had had a part in making, statute or
enacted law. He could not act against the public weal or safety
nor license a public nuisance; he could permit no subject to act
against the interest of another; he could forego or excuse a
penalty only if it were due the crown. There were, thus, no
licenses to murder, burn, or rob, to pollute streams, or to stop
traffic on a roadway. But English kings did grant subjects
license to import French wines, to worship God according to
rites other than those of the Church of England, to transmute
metals (if they could), to serve as sheriff for more than one
year, to be pardoned for the crime of murder - all statute
non obstante, notwithstanding.
Until late in the sixteenth century, neither the dispensing
power nor the crown’s use of it was what might be called an
issue. For, it was agreed, though king and parliament enacted
statute, it was the king’s responsibility alone to administer
it. Statutes might be mistaken or badly drawn; policy, mercy,
or simple justice might direct a king to grant exceptions. The
king was not expected “to destroy a Law,” but only to “supply
its Defects, pardoning a condemn’d Innocent, or a hopeful
Penitent, or dispensing with a Law to one, that by particular
Accident, the Law in its Rigour would undo.” 
On occasion, there were objections. Edward III, for example,
sold to wool merchants license to ignore certain export laws -
this primarily to finance his wars against the French. The
Osborne, Duke of Leeds], The Thoughts of a Private Person;
About the Justice of the Gentlemen’s Undertaking at York, Nov.
1688 (1689), p. 17. he king had other discretionary powers
in administering law including, among others, power to pardon
offenders, to suspend laws, and in certain circumstances to
object, less to the sale than to the price demanded.  And
there were occasional tests at law. Henry VIII was informed by
his judges that he could not dispense with statutes which had
not yet been enacted, no matter how lucrative the traffic
promised to be.  But, in general, the courts tended to favor
the crown and the dispensing power over statute and objection.
The dispensing power became a serious point of contention in the
reign of Elizabeth I. In an effort to increase royal revenues
and to expand royal influence in economic affairs, the queen
enlarged upon the example set by her predecessors, granting (or
selling) royal patents of monopoly, some, though not all, non
obstante statute. Parliament men objected. They had hopes
and aspirations of their own. They feared the extension of the
queen’s influence over trade and manufacturing; they feared her
efforts to tap a rich source of income independent of
parliament’s subsidies and taxes. Further, parliament men were
no longer entirely willing to allow the queen free rein in
administering law. Attitudes toward law and toward lawmaking
were changing. In times before, law had been regarded largely
as a static thing; new statutes were enacted to explain, expand
upon, clarify, or declare policy on principles already long
3. See Eileen
Power, The Wool Trade in English Medieval History Being the
Ford Lectures (Oxford, 1941), especially Lecture 4, “The
Taxation of Wool,” pp. 63-85.
of Bell Metal Case (34 Hen. 8) in Sir James Dyer, Reports
of Cases in the Reigns of Henry VIII, Edw. VI, Q. Mary, and Q.
Eliz. Taken and Collected by Sir James Dyer Knt. Some Time Chief
Justice of the Common Pleas, trans. John Vaillant (Dublin,
1794), I, 52a.
5. See for
example the landmark 1487 Case of the Sheriffs in Anni Regis
Henrici Septimi (Tottell) (London, 1555), fols. 6-7, which
case, or more particularly Sir Edward Coke’s later report and
interpretation of it, was held through the seventeenth century
to establish the authority of the dispensing power over statute.
See [Sir Edward Coke], The Twelfth Part of the Reports of
Sir Edward Coke Kt. of Divers Resolutions and Judgments given
upon Solemn Arguments, and with great Deliberation and
Conference with the Learned Judges in Cases of the Law, the most
of them very Famous, being of the Kings especiall Reference from
the Council Table, concerning the Prerogative (London,
1656), p. 18 . On the early history of the non obstante,
see William Petyt, Jus Parliamentarium: Or The Ancient Power,
Jurisdiction, Rights and Liberties, of the Most High Court of
Parliament, Revived and Asserted (London, 1737), especially
pp. 155-75 or, more recent, Paul Birdsall, “‘Non Obstante’ A
Study in the Dispensing Power of English Kings,” in Essays in
History and Political Theory in Honor of Charles Howard Mcllwain
(Cambridge, Mass., 1936), pp. 37-76 and E. F. Churchill’s three
articles, all published in the Law Quarterly Review: “The
Dispensing Power of the Crown in Ecclesiastical Affairs,” 38
(1922), 297-316, 420-34; “The Crown and the Alien,” 36 (1920),
402-28; and “The Dispensing Power and the Defence of the Realm,”
37 (1921), 412-41.
established. But in Elizabeth’s day, this was changing. New
circumstances, new issues, were requiring the enactment of what
was undoubtedly new law. These laws were more clearly
agreements between the queen and her subjects in parliament,
agreements reflecting a careful settlement and balance of
interests. It is not surprising that Elizabeth’s subjects
objected when they saw the queen dispense with these agreements
in such cases as she, though perhaps not they, saw fit in favor
of such interests and policies as she, not they, sought to
But how was the dispensing power to be stopped? There were
difficulties, Elizabeth’s subjects, then James’s and Charles’s
knew. Cases were brought before the courts; the judgments, as
always, tended to favor the prerogative.  Bills were brought
before parliament. But what law could parliament enact that the
crown in turn could not dispense? 
Further, the attack was not single-minded. Englishmen still saw
the non obstante, in certain of its customary uses, as an
instrument of justice, in yet others, a necessary convenience.
Many statutes were indeed outdated, unduly harsh, or simply
badly drawn. It was hard to think, for example, of obeying to
the letter the old Statute of Mortmain, Elizabeth’s Statute of
Artificers, or the 1604 Leather Act.  It was easy to buy a
dispensation. Englishmen would not choose to cripple a power
which protected them from the rigors of the law.
Why not repeal defective laws; why not rewrite the ill-drawn
clauses? The remedy seems so simple. But Englishmen did not
decision in Darcy vs. Allen (or the Case of Monopolies)
(1603) set certain limits upon the crown’s power to grant
patents of monopoly; that in the Case of the Penal Statutes
(1605) limited the crown’s power to delegate authority to grant
the non obstante. However, the crown continued to grant
patents, including patents non obstante, and to grant
dispensations through agents. See J. W. Gordon, Monopolies
by Patents and the Statutable Remedies Available to the Public
(London, 1897), pp. 192-234. The decision in Bate’s Case
(1606) clearly favored the prerogative. For recent comment see
Francis Oakley, “Jacobean Political Theology: The Absolute and
Ordinary Powers of the King,” in Journal of the History of
Ideas, 29 (1968), 323-46.
men were well aware of the implications of this point. See, for
example, debates in the House of Commons on the Great Contract
(1612) and the Petition of Right (1628).
8. The Statute
of Mortmain (1279) forbade the sale, lease, or donation of lands
to the church; the Statute of Artificers (1563) set limits upon
wages and established terms and conditions of apprenticeship;
the Leather Act prescribed in the preparation of leather certain
processes which required the use of materials not available in
accept it, for two reasons. First, sometimes it was only a
single clause of an otherwise useful statute which required
correction. Why risk the possibility of destroying a good act
for the sake of a single clause?  Second, old habits of
thought died hard. And it was still assumed that it was chiefly
the crown’s responsibility to administer the law and to remedy
the law’s defects. Further, parliament sat rarely and there was
other business for it to attend to when it did. Lawmakers made
law; they did not often repeal it.
In the reigns of Charles II and James II, contention sharpened.
Charles’s own Cavalier parliament attempted to guard its Irish
Cattle Act (1667), among others, from the king’s non obstante.
Irish cattle were public nuisances, parliament men, English
graziers, and the act itself declared. The king had no power to
admit the import of nuisances. But did he? Was the statute’s
declaration enough to make beef cattle, ordinarily counted good
and useful, harmful to the public well-being? The Earl of
Clarendon, Charles’s minister, for one, thought not.  The
king chose not to test the point and did not dispense; but in
1672 he did try to soften the same parliament’s harsh Act of
Uniformity, offering liberty and granting dispensations to
dissenting preachers.  And here he was stopped, not by any
formal acts of Commons or Lords, but by their simple threat to
bankrupt him. If he insisted upon granting dispensations to
nonconformists, parliament made clear, there would be no grant
of money for the Dutch War.
Charles’s subjects did not rely upon the power of the purse to
carry the argument. In 1675 the test case of Thomas vs.
Sorrell was brought before the Court of Exchequer Chamber.
 What limits,
9. The Leather
Act is a good example of this. Designed to settle a lengthy and
complicated controversy between leather sellers and leather
craftsmen, it was defective only in the clause which required
English leather processers to use a method practicable only in
France. No one wished for the sake of the clause to open the
Carolyn A. Edie, The Irish Cattle Bills: A Study in
Restoration Politics (Philadelphia, 1970), especially Chs.
11. In 1662
Charles II proposed, but did not offer, a limited toleration; in
1672 he issued the Declaration of Indulgence. See Frank
Bate, The Declaration of Indulgence 1672; A Study in The
Rise of Organised Dissent (London, 1908).
12. There are
three printed accounts of the trial: Jos. Keble, Reports in
the Court of King’s Bench at Westminster, From the XIIth to the
XXXth Year of the Reign of our Late Sovereign Lord King Charles
II (London, 1685); Sir Creswell Levinz, The Reports of
Sir Creswell Levinz, Knt. Late one of the Judges in the Court of
Common Pleas, at Westminster, Containing Cases Heard and
Determined in the Court of King’s Bench, during the Time that
Sir Matthew Hale, Sir Richard
[Rainsford, and Sir
William Scroggs were Chief Justices there; as also of Certain
Cases in other Courts at Westminster, during that Time
(Dublin, 1793); and Edward Vaughan, The Reports and Arguments
of that Learned Judge Sir John Vaughan Kt. Late Chief Justice of
His Majesties Court of the Common Pleas Being All of them
Special Cases, and many wherein he Pronounced the Resolution of
the Whole Court of Common Pleas; At the time he was Chief
Justice there (London, 1677). The Judges of the Courts of
Common Pleas and King’s Bench and the Barons of the Exchequer
sat on the Court of Exchequer Chamber. After argument each in
turn gave his opinion; decision was by majority vote, but there
was no majority opinion as such; each judge having his own
reasons for his vote.]
reported on page 439 or original
it asked, did law place upon the royal dispensing power? The
case itself involved a Stepney wineseller, an informer, a
dispensation of James I, a statute of Charles II, and,
indirectly, the Vintners Company of London . Its particulars are
of no special interest here. At the trial, all but one of the
assembled judges agreed as others had before them that precedent
offered no useful guide, statute no authority to bar or restrict
the prerogative. Only John Vaughan, Chief Justice of the Court
of Common Pleas, argued differently. The king, he said, had no
more power to dispense with statute than he had power to
dispense with common law, which was to say, none. For, in
Vaughan’s eyes, statute and common law were the same; common law
was nothing more than enacted law itself, enacted law of which
the record was lost in time. Further, Vaughan argued, statute
did bind the king. For example, the king could not license
murder. But what defined murder? Statute. Not just any
killing was murder, but killing under such circumstances as
statute described. To put it another way, what was a murder but
an illegal killing? Illegal by what law? Statute. There was
no question in Vaughan’s mind. Statute had the power to stop the
non obstante. 
This was a visionary opinion - visionary in 1675, that is -
acted upon in 1689. What might have happened we do not know.
Neither Charles nor parliament chose to press the issue. The
Popish plot, the Exclusion crisis intervened, and then, in 1685,
Charles’s death. But the Vaughan opinion, which was widely
circulated, taught two lessons to those who cared to learn. The
dispensing power could be bound only by statute and that only if
statute were acknowledged to have an authority to bind common
law, to bind the king, to bind the constitution.
James II, Charles’s brother and successor, exercised the non
Reports, pp. 332-42. Before his appointment to the
bench, Vaughan sat in the House of Commons.
freely, dispensing with the statutes governing religion to bring
Catholics into the church, the army, and the government, a
policy calculated by everyone except James himself to arouse
fear and hostility in his subjects’ hearts. The judges granted
approval (Godden vs. Hales, 1686). But no matter what
powers the law accorded the king, it was intolerable that he
should employ them against the interests of his subjects. They
called in William of Orange; James left for France.
King James had fled. William and Mary were in England, ready to
assume the crown. There was no longer any question. Parliament
had a power to overrule the king; statute had a power to settle
the constitution. Why didn’t the Convention now move
immediately to abolish the dangerous non obstante?
William of Orange had made his position clear. On 10 October
1688 he had issued a declaration “Of the Reasons inducing him to
appear in Arms in the Kingdom of England.” Among other things,
William declared that James’s “evil Counsellors… did invent and
set on foot the King’s dispensing Power,” by which they
pretended he could dispense with laws and, said the Prince, “so
rendered those Laws of no effect.”  William would not defend
the dispensing prerogative.
But the Convention could not agree to attack it. The first test
came in drawing the Declaration of Right, which William and Mary
were to accept on being offered the crown of England. The
Commons pressed for a flat statement. King James, they said,
had endeavored to “subvert and extirpate the Protestant Religion
and the Laws and Liberties of this Kingdom, by assuming and
exercising a Power of dispensing and suspending of Law.” They
would declare “that the pretended Power of dispensing or
suspending of laws, by Regal Authority, without Consent of
Parliament, is illegal.” 
Declaration of His Highness William Henry (by the Grace of God)
Prince of Orange, & c. Of the Reasons Inducing him to appear in
Arms in the Kingdom of England, for Preserving of the Protestant
Religion, and for Restoring the Laws and Liberties of England,
Scotland and Ireland (The Hague, 1688), p. 2.
Journals of the House of Commons, X, 17, 20, 21; Anchitell
Grey, Debates of the House of Commons, from the Year 1667 to
the Year 1694 (London, 1763), IX, 74. In 1689 parliament
moved against the royal suspending power as well as the
dispensing power; however, it did so virtually without debate.
In fact, the suspending power never excited the controversy the
dispensing power did. This may be because the effect of the
suspending power was general and public, in contrast to the
dispensing power, which was specific and private in its uses, or
because kings did not employ the suspending power in what might
be called [controversial
ways. There was on occasion (Thomas vs. Sorrell, for
example) judicial concern lest the non obstante be
granted so widely as to constitute virtual repeal of law, but
this was not seen as suspension. There was what seems to be a
positive effort in 1673 to confuse the political debate on
Charles II’s Declaration of Indulgence by assertions that the
king had suspended, not dispensed with, law (probably because
the king had no power to suspend laws governing religion and
thus, it might be argued, no power to issue the Declaration).]
reported on page 441 or original
But was the power pretended? Had King James or his predecessors
assumed a power they did not have? The Lords did not think so.
The judges were called in. A king had no authority to dispense
at all, said Sir Robert Atkyns of the Court of Common Pleas.
The king did indeed have such a power, disagreed Sir William
Dolben of King’s Bench. “The judges have always been of that
opinion.”  The Lords hesitated. They would do away with the
king’s power to dispense only in such cases as “by consequence,
would subject all the Laws to his Will and Pleasure.”  Lord
Falconberg explained. A general declaration against the
dispensing power might be prejudicial, rather than beneficial,
to the king’s subjects, for, he said, among other things, “the
Validity of Multitudes of Letters Patents and Grants from the
Crown, in the Reigns of Several Kings and Queens, do depend upon
Non Obstante.” 
The Commons would not be so cautious. John Somers argued for
rejections of the Lords’ clause. The bar against “the Will and
Pleasure of the King,” was not enough. The Commons insisted
“That the pretended power of Dispensing with Laws, by Regal
Authority, as it has been assumed and exercised of late, is
illegal.” The truth of that proposition, they declared, “cannot
be denied.” And in the end, the Lords agreed In February, the
of the House of Lords 1689-90 (London, 1889), pp. 29-30. James
II’s judges had decided in favor of the king’s authority to
grant (particular, not general) dispensations as recently as
1686 (Godden vs. Hales). The 1688 acquittal of the seven
bishops on charges of seditious libel for refusing to accord the
king a general power to dispense with ecclesiastical laws has
been widely held to mark a victory against the prerogative;
however, despite the recital of precedents and the public
debate, the decision in the trial itself turned on other points.
Still, not only Atkyns but many others of his own time and
later believed the power to be illegal. In 1765, for example,
Blackstone called the power “pretended”; in 1775 Daines
Barrington termed it “a shock almost to common sense” (Sir
William Blackstone, Commentaries on the Laws of England,
ed. by George Sharswood [Philadelphia, 1863], I, bk. I, 181,
341; Daines Barrington, Observations on the More Ancient
Statutes from the Magna Charta to the Twenty-First of James I.
cap. xxvii [London, 1775], p. 182).
MSS 1689-90, pp. 29-30.
Journals, X, 25.
Rights, later enacted as the Bill of Rights, was accepted by
William and Mary. 
This accomplished, the Convention turned to the task of
settlement. Differences had been glossed over in the common
effort to draft the Declaration; now they had to be worked out.
The Declaration said the dispensing power to be illegal only as
it had been “assumed and exercised of late”; as the Lords
insisted, nothing was said in it of precedent or of the power
itself.  The Declaration spoke only in general terms, of
ancient rights; by agreement, little was said of present
circumstances, nothing of new law.  Settlement of the
dispensing question would certainly require new law. For
whatever parliament men said, there was little in legal
precedent to bar the non obstante, little at all except
their own intention. But as they well know, custom, precedent,
the constitution itself had been overturned by Revolution. What
mattered now was intention and what the Convention, as a
parliament, would decide to do.
What parliament would do was at this point by no means clear.
The Commons was still resolutely for abolishing the dispensing
power entirely; they saw its dangers clearly. “We know the King
has prerogatives,” said Sir Henry Capel, “but to say ‘he has a
Dispensing Power’ is to say there is no Law.” Sir William
Williams concurred. “Is there anything more pernicious than the
Dispensing Power? There is the end of all Legislative Power,
gone and lost.”  But again the Lords would not agree. The
non obstante had its uses, they said. The king’s power
to dispense with clauses in the Navigation Act made possible
“the Negro-Trade, which the English drove
Journals, X, 26; Grey, Debates, IX, 82; Lords MSS
1689-90, p. 30. Somers, M.P. for Worcester, later to be named
Attorney-General (1692), Lord Keeper of the Great Seal (1693),
and then Lord Chancellor (1697), played a leading role in
drawing of the Revolution settlement.
to Bishop Burnet: “King James’s party took great advantage from
this; and said, though the main clamour of the nation was
against the dispensing power, yet when the convention brought
things to a settlement, that did not appear to be so clear a
point” (Gilbert Burnet, Bishop Burnet’s History of His Own
Time, ed. M. J. Routh [Oxford, 1833], III, 400). But see
[James Ralph], The History of England: During the Reigns of
K. William, Q. Anne and K. George I, with an Introductory Review
of the Reigns of the Royal Brothers, Charles and James, in which
are to be found the seeds of the Revolution (London, 1744),
Debates, IX, 51. See also James MacPherson, The History
of Great Britain, from the Restoration to the Accession of the
House of Hannover (London, 1775), I, 566.
Debates, IX, 257, 258; William Cobbett, ed.,
Parliamentary History of England (London, 1806-20), V, 262,
263. Capel sat for Cockermouth; Williams, a lawyer, for
with the Spaniards, of which they had cut off the Dutch.” 
It was the king’s non obstante which permitted Welshmen
to sit as judges, sheriffs to leave their shires, the king
himself to pardon murder and certain other crimes, to grant
useful charters and patents.  Need these benefits be lost
because a king had on occasion abused the prerogative?
Then, in May, the Commons moved. The house voted to tack to the
important bill for securing the rights and liberties of the
subject and settling the succession to the crown, better known
as the succession bill, a proviso abolishing the non obstante
“of or to any Statute” except, they added, in such cases as
dispensations might be expressly allowed in a particular statute
itself.  To this the Lords refused to agree; they would
reserve to the king a broader power to dispense. They asked the
judges for advice, then on 24 May ordered them “to prepare an
Act for regulating Non Obstantes.” 
The Commons would not accept the Lords’ reservations. They
would allow the king nothing of the power which had proved, in
Sir Thomas Clarges’ words, “so dismal to our liberties.”
“Should you agree with the Lords in this,” William Sacheverell
warned his colleagues, “the Dispensing Power is confirmed for
the future.” For who was to say when the king might dispense?
“It is not fit a Judge should chuse what laws are fit to be
The house agreed. “The Dispensing Power against Statute Laws
hath been assumed within Time of Memory,” the members de-
Boyer], The History of King William the Third (London,
1702), II, 162-63; White Kennett, A Complete History of
England: With the Lives of All the Kings and Queens Thereof:
From the Earliest Account of Time, to the Death of His late
Majesty King William III (London, 1719), III, 585.
24. The House
of Lords ordered a listing of all dispensations granted by James
II (some 35), and all pardons non obstante granted by
Charles II in his last four years (48, some naming more than one
person), and by James II (127) (Lords MSS 1689-90, pp.
300-308; Journals of the House of Lords, XIV, 394).
Journals, X, 126; Ralph, History, II, 131. Both N. Tindal
(1744) and James MacPherson (1776) mistakenly report this
proposal as the final settlement of the issue. See Rapin de
Thoyras, The History of England by Mr. Rapin de Thoyras.
Continued From the Revolution to the Accession of King George II,
trans. and continued by N. Tindal (London, 1687-1744), III, 56;
MacPherson, History, I, 610.
MSS 1689-90, pp. 346-47; Lords Journals, XIV, 218.
Debates, IX, 353-54; Commons Journals, X, 190 .
Clarges, M.P. for Oxford University, was brother-in-law to the
Restoration’s General Monck, later Duke of Albemarle.
Sacheverell, member for Heytesbury, had been active for the
Exclusion of James II.
clared. “And generally the Mischiefs that have been consequent
thereupon, are so great, that the Commons can find no remedy to
prevent the same but by insisting upon this [its own] Clause and
Proviso.”  No agreement had been reached when parliament
recessed in August.
The question was complicated and to a degree confused by others
being debated at the same time. In May a bill of indemnity was
before the House of Commons. Some wanted to exclude from its
benefits those judges who had spoken for the dispensing power in
Godden vs. Hales (1686) or the Case of the Seven
Bishops (1688). “I would except out of the pardon all who
gave opinions with my Lord Chancellor, for the Dispensing
Power,” declared Mr. Harbord. “That is a Breach of their Oath,
and a great one,” agreed Mr. Garroway, “and of that you have the
judgments of the Lords and Commons.” “The Dispensing Power was
the last Grievance, and a bloody sacrifice to the Prince’s
pleasure, to the subversion of the whole Government,” Mr. Hawles
concurred.” But others were not so sure. “I cannot be
persuaded that giving the King advice in the Dispensing Power be
made capital,” argued Sir Joseph Tredenham. “I believe it first
an invasion of our rights, but the exercise of it long became a
common error.” “Whoever the Judges were, they are great
Criminals; but,” demurred Mr. Brewer, “I would have the Offence
certain.”  And the house, it appears, was far from certain.
For, on 23 May, the members voted only to declare that “The
Asserting, Advising, and Promoting of the Dispensing Power, and
Suspending of Laws without consent of Parliament, as it has
lately been exercised… is one of the Crimes, for which some
Persons may justly be excepted out of the Bill of Indemnity
“ However, in mid June, after hearing the report of Mr.
Justice Powell and several others who had been present at the
trials of Godden vs. Hales and
Journals, X, 214; Lords Journals, XIV, 273.
Debates, IX, 256, 257; Cobbett, Parliamentary History
V, 262-63. William Harbord, M.P. for Launceston, had first been
elected to parliament in 1661; he had supported Exclusion, gone
into exile at James II’s accession, and returned to England with
William. William Garroway, in 1689 member for Arundel, had also
been elected first in 1661; in 1662 he had been appointed
Gentleman of the Privy Chamber to Charles II. John Hawles,
lawyer and writer, was elected to sit for Old Sarum in March
Debates, IX, 257, 300, 325; Cobbett, Parliamentary
History, V, 262, 301. Tredenham sat for St. Mawes, Cornwall;
John Brewer entered parliament in 1689 as member for Romney
Journals, X, 146.
the Seven Bishops and had heard who had said what, the
house did vote to except by name four judges held to have
defended the dispensing power. 32]
Neither vote did anything to advance a solution to the question
dividing the Lords and Commons. The first condemned, as did the
Declaration of Right, the dispensing power only as it had
“lately been exercised.” The second condemned judges for
decisions which, if politically unsound, were nevertheless
defensible in law. Still, the indemnity debate revealed, as did
the nearly concurrent debate on the succession bill, how strong
was the feeling in the Commons against the non obstante.
Also revealing were the various efforts, in both houses, to deal
with the question of religious dissent. The issue at this point
was not really toleration, perhaps not really religion. For one
thing, Calvinist William, though openly tolerant, was not
expected to favor Catholics.  For another, Protestant
dissenters had, on the whole, distrusted James; despite his
offers of indulgence, few had accepted. There were in the press
occasional attacks upon those who had “by the Use of their
Liberty, acknowledg’d an Illegal Dispensing Power.”  But
toward the rest, and on the point of religious dissent itself,
attitudes were changing. “The prevailing opinion now in England
is Latitudinarian,” it was observed in 1689. “Most Men are so
far improv’d in their Judgments as to believe, that Heaven is
not entail’d upon any particular Opinion.”  There were still
to be severe strictures against Catholics, but a bill promising
Protestant dissenters religious liberty, if not yet political
privilege, was before
Journals, X, 185. The four excepted were Sir Edward
Herbert, Sir Francis Withens, Sir Richard Holloway, and Sir
Robert Wright; other persons were also excepted on other
grounds. For Herbert’s defense of his opinion in Godden vs.
Hales, see his A Short Account of the Authorities in Law,
upon which Judgement was given in Sir Edw. Hales His Case
(London, 1688); also W.A., The Lord Chief Justice Herbert’s
Account Examin’d (London, 1689), and Sir Robert Atkyns, “A
Postscript: Being some Animadversions upon a Book writ by Sir
Edward Herbert, Lord Chief Justice of the Common Pleas,” in T.
B. Howell, ed., A Complete Collection of State Trials and
Proceedings for High Treason and Other Crimes and Misdemeanors
From the Earliest Period to the Year 1783 (London, 1816-26),
however, note 44, below.
example, A Letter to a Bishop Concerning the Present
Settlement and the New Oaths (London, 1689), p. 10.
Some Remarks upon Government, and Particularly upon the
Establishment of the English Monarchy Relating to this Present
Juncture (London, ), pp. 3-4.
parliament in the spring of 1689 and made law before the year
was out.  It would not be easy, it was remarked, “to
persuade so great a company of people [dissenters], that they
find their account in the late Revolution, unless they be
admitted by Law to enjoy the same advantages under the present
King [William], which by Dispensing with, and an usurpation over
the Law, they were possessed of under the last.” 
More difficult was the question raised by clergy who, for reason
of religious scruple, would not take the oath of allegiance to
William and Mary while James II, the crowned king, yet lived.
In March a bill was introduced in parliament abrogating the old
oaths of supremacy and allegiance to James and appointing new
oaths to William and Mary. In the Lords, a clause was added
exempting bishops from taking new oaths unless specifically
required to do so by the king and council.  This would, in
effect, have granted the king a power to dispense with the act
establishing oaths and the Commons would not have it. “I see it
evidently here… that a dispensing Power is asserted, a Power in
the King and Council to exempt a part of the People from their
Allegiance,” argued Sir Henry Goodrick. “No doubt, any thing
shall be granted, if you will give this Power of dispensing with
this Law.”  And the Commons agreed. There were to be no
exemptions, no dispensations.
In December, as the deadline for taking the new oaths
approached, the bishops of London and St. Asaph, both themselves
willing to take the oath, pressed the archbishop of Canterbury
to know what could be done to prevent the deprivation of those
of their colleagues who would not. “Could they take no steps
toward the government?” The two proposed some expedients,
including a proposal that “a short bill be passed, giving the
King power to dispense with them during pleasure.” But
Canterbury, together with Norwich and Ely, all three to be
ultimately nonjurors, gave no encouragement. The king himself
might act, should he choose, they
36. 1 W. & M.
c. 9; 1 W. & M. c. 15; 1 W. & M. c. 17; 1 W. & M. c. 18.
Letter to a Friend, upon the Dissolving of the late Parliament,
and the Calling of a New One (London, 1690), p. 1; also
Lords Journals, XIV, 154, 159.
to Dalrymple, King William “signified privately” his “wish to
dispense with the oaths of the clergy to government” and himself
recommended the clause to the Lords (Sir John Dalrymple, Bart.,
Memoirs of Great Britain and Ireland [London, 1721], 1,
315); see also MacPherson, History, I, 584. The Lords
Journals reports only that clauses were read and rejected
(IV, 154, 156-59).
Debates, IX, 218-20. Goodrick, a former army officer and
diplomat, sat for Borobridge, Yorkshire.
said, but they could not.  “We cannot expect that the
Dispensing Power should now revive to save those from whom it
received its mortal wound,” agreed Henry Maurice. 
Lesser clergymen were to be deprived too. Some among them had
hopes of exemption. Perhaps some thought that parliament might
act. In December a draft of a bill to enable their Majesties to
dispense with the Test Act and to appoint any person, except a
Catholic, whom they deemed fit to hold “any Office or Employment
under them” without taking the sacrament was circulated among
certain of the Lords.  But others were opposed, distrusting
those who would bend the law in their own favor. John
Kettlewell, vicar of Coles-Hill, himself to be deprived, was one
of these, reports his biographer. “At a time when a great many
were for giving themselves Dispensations, out of a pretended
Zeal of God’s Goodness, and were for breaking the Tables of his
Law One against the Other, he [Kettlewell] strenuously opposed
the Masqueraders.”  Those who hoped were to be disappointed.
The king and queen did not ask and were not granted power to
Weller Singer, ed., The Correspondence of Henry Hyde, Earl of
Clarendon and of his Brother Laurence Hyde, Earl of Rochester,
with the Diary of Lord Clarendon from 1687 to 1690, containing
minute particulars of the events attending the Revolution: and
the Diary of Lord Rochester during his Embassy to Poland in 1676
(London, 1828), II, 299.
Maurice, D.D.], A Letter to a Member of the House of Commons,
Concerning the Bishops Lately in the Tower, and now under
Suspension (London, 1689), p. 5. Five of the seven bishops
charged in 1688, including Canterbury and Ely, were among those
who refused to take the new oaths; St. Asaph, also charged in
1688, was one of those who did.
Draught of a Bill for an Act to enable their Majesties to
Dispense with the Statue of 25 Car. 2 touching the Sacramental
Test, and to Employ any of their Protestant Subjects in the
Common Defence of Themselves, their Government, and their
Kingdom ([London], ), p. 1. The same point had been
broached in a rider attached to, and then detached from, the
text of the bill for abrogating oaths in March; this may be only
an expanded version of that rider, rewritten, printed and,
apparently, circulated in December, as a draft of a new bill (Lords
Journals, XIV, 158-59).
Lee], Memoirs of the Life of Mr. John Kettlewell (London,
1718), p. 221. Sir James Montgomery reflected the same view.
Liberty of conscience Montgomery regarded as “desirable and
necessary, a Good and Birth-right of Mankind,” but he would not
have the dispensing power, “as much as fault now as ever”
revived to achieve it (Great Britain’s Just Complaint For Her
Late Measures, Present Sufferings, And the Future Miseries She
is expos’d to [Oxford, 1692], pp. 16-17).
44. The draft
version of the Articles of Limerick, signed by commissioners for
King William in 1691, provided that Irish Catholics should
“enjoy the same Privileges in the exercise of their Religion… as
they did in the Reign of K. Charles the 2nd.” In response to
the English outcry against what seemed to some to be his taking
“large and broad steps” to reassert the dispensing power, albeit
[in Ireland not
England, William revised the Articles, omitting the provision.
See [Robert Ferguson], The History of the Revolution
(London, 1706), pp. 2, 25; also Montgomery, Britain’s Just
Complaint, p. 28.]
reported on page 448 or original
By December, as Canterbury implied, the possibility was all but
closed. For early that month, parliament had at last moved to
act on the succession bill, and with it, the question of
dispensations. In October, when the two houses had met again
after the summer recess, the bill had been revived. Again, the
Commons pressed for abolition of the dispensing power. Some
among the Lords agreed. “That dispensing power,” wrote the Earl
of Danby (later Duke of Leeds), “that like a State Opium, casts
all Laws asleep, and is an Engine of Publick Mischief, is no
Prerogative belonging to the Crown of England, but a Vice that
does not belong to it.”  But, as in April, May, and July,
the majority of the house hesitated. In November they still
sought to save something of the prerogative. On the fourteenth,
they ordered the judges to “prepare a Bill for regulating Non
Obstantes, with all convenient speed.” 
On 21 November the judges were reported ready; the Lords moved
to hear from them “what is practicable in this case.” Justice
Dolben made the report; he was not at all encouraging. The
judges had drawn up a bill as ordered, Dolben said, “but when we
had done we fell into a debate of the Non Obstante, and we found
it of marvellous difficulty.” This was not what the Lords had
hoped to hear. The next day the judges were asked again, in
“what cases it is absolutely necessary for the Crown to
dispense, or In what case the king may dispense with an Act, or
whether he can dispense in no case.” Might it not be prejudicial
to the subject if the king had no power to dispense at all?
What did the law say? But the judges could not answer clearly.
The precedents could be cited, as they had been in Thomas
vs. Sorrell, Godden vs. Hales and the Case of the
Seven Bishops, but this did not answer the Lords’ questions.
“I can say no more,” said Justice Dolben. “It will be very
Time required that a decision be made; the Commons and the
country awaited the succession bill. Still the Lords hesitated.
Again they ordered the judges to draw up a bill for dispensing
“in such Cases wherein they find it necessary,” and, they now
added, “for the abrogating such laws as have been usually
dispensed with, and
45. Osborne, Thoughts, p. 17.
46. Lords Journals, XIV, 332, 341-46, 348; Lords MSS
1689-90, p. 348.
47. Lords MSS 1689-90, pp. 348-49; Lords Journals,
are useless.”  Then they voted on the Commons’ clause to
abolish the dispensing power and this time agreed, with two
reservations, to accept it. Non obstantes were to be
“void and of noe effect” as the Commons insisted except, as the
Lords added, “in such Cases as Shall be specifically provided
for by one or more Bill or Bills to be passed dureing this
present Session of Parliament.” Also, all grants non
obstante made before 23 October 1689, the date the session
opened, were held good and in effect. On 16 December the bill
became law. 
This was not compromise but capitulation; the Lords gave in.
Despite the hopes of the nonjurors, and perhaps of some of the
Lords themselves, no bill regarding the dispensing power was
introduced.  Probably in any case none could have passed the
Commons. The session closed; the non obstante was
Why had the Lords hesitated so long? Had some among them
thought to restore the powers James had enjoyed? Was there a
lack of confidence in the aims of the Revolution? Surely not,
must be the answer to both questions. Englishmen knew the
danger of the dispensing power. King William might be trusted,
but the future could not; security against it was required. 
Still, as the Lords said,
Journals, XIV, 326, also 394, 402, 418; Lords MSS
1689-90, p. 361, lists statutes recommended for repeal.
49. 1 W. & M.
Session 2, c. 2.
possibility that such a bill might be introduced was,
presumably, what led some of the clergy to yet hope for
dispensations in late December.
51. After 1689
James II, in exile, no longer pressed the point. His April 1693
Declaration, prepared in a vain attempt to rally support among
his former subjects prior, he hoped, to restoration, spoke only
of “parliamentary settlement.” “I do promise to govern
according to law,” he wrote to certain lords six months later.
See James MacPherson, Original Papers; Containing the Secret
History of Great Britain, from the Restoration to the Accession
of the House of Hannover (London, 1775), I, 425-35, 445; “A
Light to the Blind,” Appendix iii [Observations on the
government of James II], in Manuscripts of the Right
Honorable the Earl of Fingall, Killeen Castle, Ireland,
Historical Manuscripts Commission Report X, Appendix, Pt. V, p.
116. Still, in the minds of some Englishmen, the dispensing
power was not dead. Wrote a Jacobite poet hopefully in 1693:
And as for the dispensing power
(Of Prince’s Crowns, the sweetest flower)
That parliament shall so explain it,
As we in peace shall still maintain it.
(The True and Genuine Explanation of one K. James’s
Declaration, printed in William Oldys and Thomas Park, eds.
The Harleian Miscellany: A Collection of Scarce, Curious, and
Entertaining Pamphlets and Tracts as well in Manuscript as Print
[London, 1808-13], II, 229). See too George Dawson, Origo
Legum: or a Treatise of the Origin of Laws; and Their Obliging
Power: as also of Their Great Variety: and Why Some Laws are
Immutable, and Some Not; but May Suffer Change, or Cease to be,
or be Suspended or Abrogated (London, published in
[1694 though possibly
written earlier), which not only treats the dispensing power as
if it still existed (Ch. vi), but also argues for it as
necessary to the “publique weal.”]
reported on page 450 or original
the non obstante had its uses. What of grants, judges,
sheriffs, pardons, and any number of other things should the
king’s power to dispense be abolished? True, agreed most
Englishmen. But defense was, really, hopeless. There was no
way the non obstante could be saved. For if the king
retained a power to dispense in some cases, then he (or his
successors) might claim a power to dispense in all. No statute,
including even the Act of Succession itself, and thus not even
the Revolution, would be safe.
Once the Revolution had begun, it had to be carried to its
conclusion. To Thomas Somerville, looking back at events from
the safe distance of 1792, this was plain. “If a king be vested
with a discretionary power of dispensing with laws, what remains
deserving of the name of a free constitution, or of a settled
government?”  But in 1689, the point was by no means clear.
It took some time for the Lords to realize what had happened.
It was, really, a question of responsibility. If the Revolution
marked the triumph of law, it marked too the end of the
dispensing power. Non obstante had been necessary
because statutes were outdated, ill-drawn, ill-advised, or in
the Lords’ own word, useless. But it was no longer possible to
trust the king to remedy the defects. Convenient, expedient,
the non obstante might be, but dangerous too, the Lords
knew. Parliament itself must assume responsibility for the laws
it made. Defective laws must be redrawn, useless ones repealed.
Parliament met often now; it could be done, and was. Through
the 1690s old laws were brought up to date and, when necessary,
rewritten.  There could be no other way. The Commons
understood this and so, in the end, did the Lords.
University of Illinois, Chicago Circle
Somerville, The History of Political Transactions, and of
Parties, from the Restoration of King Charles the Second, to the
Death of King William (London, 1792), p. 185.
53. The old
Statute of Mortmain, for one example, was replaced in 1696 by
An Act for the Encouragement of Charitable Gifts and
Dispositions (7 & 8 Will. 3 c. 37). For another, Henry IV’s
statute against “multiplying Gold and Silver” was repealed,
leaving alchemists free to attempt the transmutation of metals
without the king’s permission (1 W. & M. c. 30). The question
of pardons non obstante was, apparently settled in the
courts, with Justice Holt’s argument that statute limitations
upon the power of pardon were illegal, the non obstante
therefore unnecessary. See Henry Hallam, The Constitutional
History of England From the Accession of Henry VII to the Death
of George II (New York, 1882), II, 318.