Parliamentary Debates on Godden v. Hales in Chandler’s History and Proceedings in the House of Commons (1742)

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(331)

{Anno 1 W. & M. 1689}
{The Examination of Mr. Justice Powel, touching the King’s dispensing Power.}

The 18th, Mr. Justice Powel attending the House ac-
cording to Order, a Chair was order’d for him, standing
behind which, he reply’d to the Questions put to him by
the House, concerning the Opinion of the Judges in the
Case of Goodwin and Hales, touching the King’s Power to
dispense with the Laws, in Substance, as follows:

That he receiv’d Information from Sir Robert Wright
Puisne Judge of the King’s Bench, that Lord Chief-Justice
Herbert had order’d him to acquaint the Judges of Ser-
jeants-Inn, that he had receiv’d the King’s Commands to
assemble all the Judges at the said Inn, to consult with them
upon certain Matters; and that the said Judges did meet
there accordingly. When the said Lord Chief Justice gave
them to understand, they were met to give their Opinions on
the Case of Goodwin and Hales, which he then put, to this
effect, viz.

That an Information was exhibited against the Defendant,
upon the Stat. 25 Car. II. for exercising the Office of Co-
lonel of a Regiment of Foot, without taking the Oaths,
Test, &c. To which Information the Defendant pleaded a
Patent from the King under the Great Seal, whereby he
dispens’d with his taking the said Oaths, Test, &c. with a
Non-obstante to the said Statute.

The House then proceeded to ask what Opinions the
Judges delivered on this Case; and he desiring to be excus’d
from answering, was order’d to withdraw. After which,
being call’d in, he was requir’d in the Name of the House,
to declare the said Opinions, with a saving to his own,
which he was left free to utter or conceal.

He then inform’d the House, that Lord Chief Justice
Herbert gave his opinion at large, in support of which he
cited several Cases. After which, he demanded his (Powel’s)
Opinion: In Return to which, he pleaded the Importance
of the Case, his being unprepar’d, &c. and demanded till the
next Term to consult the Books, but was told Sentence
would be given the next Tuesday, which was the last Day
of Trinity Term: Upon which he promis’d to wait on the
Chief Justice the Monday following.

That Mr. Baron Milton then gave his opinion for the
dispensing Power.

That Mr. Justice Lutwych declar’d, the King could dis-
pense in that case, but not in Ecclesiastical or Civil Af-
fairs; and when he found others for a dispensing Power,
but limited, he added, Take notice, I pray, that I restrain
it to this particular Case.

That Mr. Baron Jenour and Mr. Justice Wright, and
Justice Holloway, were for dispensing with the Statute in
question.

(332)

{Anno 1 W. & M. 1689.}

That Mr. Justice Street was against dispensing.

That Lord Chief-Justice Beddingfield was for it.

That Lord Chief Baron Atkins said, that if the Cases quot-
ed by Lord Chief Justice Herbert were Law, the King
might dispense in this case. To which he added, (as he
conceives, he being far off, and not hearing distinctly) that
he knew not whether the Cases cited were Law or not.

That he (Powel) visiting him about 4 or 5 Days after,
and touching on the ill Consequences of that Opinion, he
declar’d he had given no positive Opinion, but was now
convinced that the King could not dispense with that
Statute.

That Lord Chief Justice Herbert was for the dispensing
Power, as were likewise Mr. Justice Withins, and Mr.
Baron Heath.

That the Sentence was passed before the time prefix’d for
his giving his Opinion on the Case; but that his Design was
to deliver it against the dispensing Power.

He then withdrew, and Sir Robert Henley and Sir Sa-
muel Astrey were called in; who declared, that the Day
Sentence was given, the Lord Chief Justice Herbert, the
Justices Withins, Holloway and Wright, were upon the
Bench; that they were all of the same opinion, and that
Herbert pronouncing Judgment, declar’d ten Judges were
positive for the dispensing Power: That one disputed, and
one hesitated; but that Justice Holloway inform’d him that
Morning, the last was come over to them. That the Case
was argued but once by Mr. Northey against the dispensing
Power, and by Sir Thomas Powis King’s Council for it.
Judgment was pronounc’d by the Chief Justice alone,
without the Concurrence of the other Judges, seriatim, as
usual; and that the Chief-Justice laid down certain Propo-
sitions, some of which were, That the Laws were the King’s
Laws, that the King might dispense with his Laws in case
of Necessity, and that the King was Judge of that Ne-
cessity.

Several other Persons were likewise examin’d on the same
Subject: After which the House proceeded to an Enquiry
who were at the Council-Board, and sign’d the Commit-
ment of the seven Bishops to the Tower; and the Informa-
tion was as follows:

Present
The KING.
Lord Chancellor, Earl of Huntington,
Lord President, Earl of Peterborough,
Lord Privy Seal, Earl of Craven,
Marquis of Powis, Earl of Berkley,
Lord Chamberlain, Earl of Murray.

(333)

{Anno 1 W. & M. 1689.}

Earl of Middleton, Lord Dover,
Earl of Melford, Sir John Ernley Chancellor of the Exchequer.
Earl of Castlemain,
Viscount Preston, Lord Chief Justice Herbert,
Lord Dartmouth, Sir Nich. Butler,
Lord Godolphin,
Father Petre,

All of whom sign’d the Commitment, except the King and
Father Petre.

After a Debate on the first Head of Exceptions in the
Bill of Indemnity concerning the dispensing Power,

{Four Judges excepted out of the Act of Indemnity.} Resolved, That Sir Edward Herbert, Sir Francis Withins,
Sir Richard Holloway and Sir Robert Wright, be excepted
out of the Bill of Indemnity on this Head.

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