Parliamentary Debates on Godden v. Hales in Grey’s Debates (1763)

DEBATES
OF THE
House of Commons,
From the Year 1667 to the Year 1694.

COLLECTED BY THE
Honourable ANCHITELL GREY, Esq;
WHO WAS
Thirty Years Member for the Town of DERBY;
CHAIRMAN of Several COMMITTEES;
AND
Decyphered COLEMAN’S LETTERS for the Use
of the HOUSE.

In TEN VOLUMES.

VOLUME IX.

LONDON:

Printed for D. HENRY and R. CAVE, at St John’s Gate;
and J. EMONSON, in St John’s Square.

MDCCLXIII.

[296]

******** [Debate on June 12, 1689]

The Debate went off, and the King’s Letter was read relating
to the Indemnity, [dated Jan. 22, 1688.]

Sir Robert Cotton, of Cambridgeshire.] The Advice the
King has given in his Letter may contribute to the for-
warding the business of the Indemnity, and satisfaction
of the Nation. Nothing will more settle the Nation,
than a quiet peaceable spirit amongst ourselves; and as
the King has expressed great kindness to his Subjects, so
I hope we shall proceed with that temper as may quiet
the Nation, by as much moderation and unity, in naming

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the persons to be excepted, as possibly the nature of the
thing may bear.

Mr Howe.] Pray lay a foundation: No man that has a
falling house will live in it with props. For want of a
foundation, a new building can never be strong. As to
the King’s Letter about the Indemnity, I wish it may be
so for ever; but, as I wish to God we may forget what
is past, so likewise that we may punish those who endea-
voured to destroy our Liberty and Religion. Some, in the
worst of times, did die Martyrs for it. As I would for-
get, so I would not confirm, all the ill things in time
past. I would have as few excepted out of the Indem-
nity, as may be pardoned, as any man; but I would not
give encouragement to exercise the same thing on to
posterity. The Guilty are in haste to be forgiven, and
the Innocent fear a return of the same ill things. I hope
we shall have a temper in what we do.

The Record of Sir Edward Hales`s Case ^*Sir Edward Hales, a Gentleman of a noble family in Kent, declared himself a Papist, though he had long disguised it. He had an employment, and not taking the Test, his Coachman was set up to inform against him, and to claim the 500 l. that the Law gave to the Informer. When this was to be brought to Tryal, the Judges were secretly asked their opinions; and such as were not clear to judge as the Court did direct, were turned out; and, upon two or three canvassings, the half of them were dismissed, and others, of more plyable and obedient understandings, were put in their places. Some of these were weak and ignorant to a scandal. The Suit went on in a feeble Prosecution, and in Trinity Term Judgement was given. Burnet. was read.

Sir John Guise.] If you intend to except any persons
out of the Indemnity, you have now an occasion. We
hear who the Judges were that gave their opinions in this
case. I hear Jones and Wythens were so; pray make
them Examples.

Mr Howe.] You are going upon a Company of Judges,
like the East India Company; they were the instruments,
but those who put them upon it, and advised, are rather
to be excepted; but if you name a Committee to bring
in the names of the Counsellors, then you may chuse
whom you will make Examples of, and distinguish them
from honest men. Those who built theirs upon our mis-
fortune, go about still in the World, and make speeches

[298]

in vindication of what was done. I hope we shall pro-
ceed so as no man may have reason to blame us.

Marquess of Winchester.] The Prince’s Declaration
turns all upon evil Counsellors: I hope they are gone
away with King James; but if they still remain here,
those are the persons you aim at, who sat with King James
from the first to the last. I move for a Committee to
inspect who those were, and then you will see whom to
except.

Mr Hawles.] I wish you had gone on in order of time.
This is the last, though first read. I think the Judges,
and that Attorney and Sollicitor (I know not who they
were) I think they ought to be under one head, and Sir
Edward Hales another.

Sir Thomas Lee.] I have sometimes sat here when mis-
carriages have been spoken of, and have heard an inge-
nious Gentleman say, ” Take them not as a whole fag-
got, but stick by stick, and you may break them.” Take
them man by man, and you may come to your end.

Mr Hawles.] Let the Committee enquire into the Pro-
ceedings of Lord Chief Justice Herbert, and Justice
Wythens, and you may know all.

Mr Howe.] Before you take out a stick, lay all the
faggot before you. Let us know all the Criminals,
and then except whom you please. I move for a Committee
to bring in the names of them all.

The Speaker.] That of Sir Edward Hales was a ficti-
tious Plea.

Mr Hawles.] You will find it was a real Plea: Send
for the Clerks of that Court, and they will inform you,
that Hales was at 60l. charge in the Suit.

Mr Foley.] I cannot see how we can proceed, unless
by a Committee. Other Judges are more criminal about
the Dispensing Power, than those named. Where a
Judge’s opinion was for dispensing with one man, he is
not so great a Criminal as those who gave their opinions
for dispensing with all. Till that be reported, you cannot
give an opinion.

Sir William Williams.] I doubt we are going into a
wood. You have received the Record of Hales and
Godden; the Committee must know the matter by Re-

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cord, or Witnesses. It was Easter Term, 2 James. Go into
the Courts, and you will see who were Judges that Term.
If I was a Judge, I would confess the thing immediately.
Why should things be concealed? It looks as if we were
afraid; as if all were infected.. All know that Herbert
was the first, Wythens the second, Holloway the third,
and Wright the fourth. Having said this, pray take my
memory as you will take other Gentlemens. As for the
Common Pleas, (I think Benefield is dead) Streete spoke
against it, for his reputation, the only man—(Milton and
Alibone are dead)—Lord Chief Baron Montagu left his
place upon it; Barons Atkins and Jenner were for it: I
speak only on my memory. Certainly, when that ac-
cursed Judgment was given, those who concurred with
the rest are most to blame. Herbert spoke his own judg-
ment, prompted by the rest. No man can alter his judg-
ment without design. A man that had this byass, and
found the rest of the Judges inclined, was confirmed in
his opinion. I take them to be equally culpable—Her-
bert is abroad, and not here to excuse himself. The rest
are dead, and have answered it in another place.

Mr Hampden.] Let a Committee be appointed to en-
quire into those concerned, in every Head, and then re-
port it, and you may be then ready to go on with the
names of the persons. My chief reason is, I would not
have you go upon persons without good proof; not upon
general fame; else, instead of doing justice in Parlia-
ment, you will expose their reputation.

Sir Joseph Tredenham.] This Enquiry implies, that the
person so excepted out of the Indemnity shall not have
the mercy of this House, nor of the whole Kingdom.
Every Gentleman, before he gives his resolution, will sa-
tisfy himself in the matter of fact; and any man is capa-
ble of seeing the Record. As to Sir Edward Hales‘s case
of Dispensation, books have been published, and I shall
say the less of that; most Gentlemen, I presume, being
satisfied. Herbert has written his own Justification, and
it has with me some weight. As to the general Decla-
ration, I could never find any thing in my reading to
justify it, it pulling all up by the roots, and the Law of no
force; nothing like it but the Case in Charles II. Who-

[300]

ever will follow such a Precedent, so justly decried by
all people, deserves to be punished. Where there is just
cause, you may proceed to Exception, and let Justice go
with Mercy.

Sir Robert Howard.] I suppose you will go farther than
the four Judges; to the Advisers and Promoters of the
Judgments. But how will you be informed, and bring
persons to do it? The only way to do it is to name
the persons visible, and who are matter of Record; with-
out a Committee, it is impossible to have names. There-
fore I move, that you will go upon the several Heads,
and those to be referred to a Committee, to name per-
sons in relation to those Heads. When these are all be-
fore you, the Names may be put to the Heads, and you
may proceed upon them.

Sir Thomas Lee.] I would understand what it is you are
about; whether an Act of Indemnity, or Pains and Pe-
nalties? I conceive you are not going by Impeachments,
and I suppose you are not setting up an Enquiry, who
was of this opinion, or who that; if so you must go all
England over. No man can miss the Name of a man, if
he please, they have been so notorious. These Heads
lead you to every man you will except, and these are ob-
vious.

Mr Brewer.] Whoever the Judges were, they are great
Criminals; but I would have the Offence certain. I dare
say, no Judgment was ever given in the Declaration, but
you may know who were Judges in the King`s-Bench then.

Mr Howe.] I suppose it is not designed that you should
except all those Names, and we do it at Committees. We
have begun this Head, though one of the last of Grie-
vances—But I would have them distinguished from man-
kind. I would know those who broke the hedges, and
let in the cattle; and then see who you will except, and
who you will forget.

Sir Robert Cotton, of Cambridgeshire.] I am against a
Committee: I think it will alarm the whole Nation. I
think the former Indemnity did quiet the Nation, and I
hope this will. I think there needs no Committee to in-
form you who the Judges were, who the Lord-Lieute-
nants, and who concerned in Corporations; persons so

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notorious, and so well known, that the whole Nation can
distinguish them; therefore I am against a Committee, &c.

Sir Robert Howard.] I do not apprehend the danger of
a Committee. I wonder at this doctrine, “that a Com-
mittee should alarm the Nation.” Is it not an Alarm to
the Nation to have a Dispensing Power, and Judgments
against Corporations? I wonder this should go so high
(as is said) to “alarm the Nation.” No such Offences
were known before; such Powers were never known be-
fore: The very roots of Parliament destroyed. I shall
not be zealous in contending, whether you will have a
Committee, or no, to enquire into Persons; but you
must have a Committee to enquire into the Courts of
Justice; and I move, that you will go upon Names; and
I think it will be for the content of the People, and not
to “alarm” them.

Mr Hawles.] I know not the custom heretofore, in
Bills of this nature; but I see no inconvenience in a
Committee. The Officers of the Court may give the
same Information to a Committee as to the House. ‘Tis
the shorter way to examine it before a Committee, only
to enquire into Officers and Judges. It may tend to ex-
pedite the matter.

Mr Ettrick.] I desire an end of this as much as any
man. The Judges are going the Circuits, and the Jails
are full: Your Act may come too late into the Country.
To enquire into the Advisers and Assisters will take up a
great deal of time. Those who were notoriously exem-
plary I would put a mark upon; and let the others go
off without any mark, and clear.

Mr Sacheverell.] I have not known, but if Gentle-
men are willing to relinquish a Question never put, but
that it has been laid aside; and pray put no difficulty
upon the House.

The Speaker.] I moved it; and Gentlemen said,
“No, no.”

Col. Birch.] If I knew the man, the mark you would
shoot at, I could speak better. ‘Tis a plain Question,
” Whether you will refer it to a Committee, or no?”
If to a Committee, then you are to give Instructions.

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Mr Coningsby.] This Bill of Indemnity has been called
“a walking Ghost;” and if you adjourn the Debate, it
will always be a Shadow, and not regarded; therefore I
am for going on.

The Question for a Committe passed in the Negative.

Sir Thomas Lee.] I hope one day more will bring an
end to your Resolutions in this matter of Names. Sir
Edward Hales has been named, and if I name a person
with King James, I do nobody any harm. I name Lord
Chief Justice Herbert ^*There was a new Chief Justice found out, very different from Jeffreys, Sir Edward Herbert. He was a well-bred and a virtuous man, generous and good-natured. He was but an indifferent Lawyer, and had gone to Ireland to find practice and preferment there. He unhappily got into a set of very high notions, with relation to the King’s Prerogative. His gravity and virtues gave him great advantages, chiefly his succeeding such a monster as had gone before him. So he being found to be a fit tool, was raised up all at once to this important post. Burnet. to be one excepted.

Mr Howe.] I am against naming Herbert; it was his
opinion, and he was guilty of no other fault; he has modestly
retired, and left our company. I would leave him out.

Ordered, That the Officers of the King`s-Bench bring in who were the Judges in Sir Edward Hales‘s Case, &c.

[section ends]

[336]

**** [Debate on June 18, 1689]

Mr Justice Powell attended, according to Order, and being cal-
led in,

The Speaker said] The House has sent for you to de-
sire you to inform them, whether the Judges were sent to to
meet together in Sir Edward Hales‘s Case?

Mr Justice Powell.] The Judges were sent to to meet my Lord
Chancellor at Serjeant`s Inn, in Fleet-Street; all the twelve Judges
were present, and there it was proposed, Whether the King could
dispense, &c. in Sir Edward Hales‘s Case? I beg the Favour to be
excused from making answer as to Persons. ‘Tis improper for me
to accuse any. I humbly beg the Favour that I may be exempted.
And withdrew.

Col. Birch.] It seems, he is tender in revealing what
passed, on private considerations; but what was done upon
that Occasion was on a public Account. I conceive it

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not the Intention of the House that this Gentleman give
Evidence; but I think it necessary that you know what
Opinion was given, because you were told that eleven
Judges were of that Opinion.

Mr Leveson Gower.] I am of Opinion, that no Imputa-
tion can lie upon him to tell you the Opinion they gave;
but I would not ask him what Opinion he was of; but
how many signed their Opinion at that time.

Sir Thomas Littleton.] If you go through with this Ques-
tion, he may live uneasy in his Judge’s place. I doubt
not, Powell gave his Opinion for it, and Streete was the
only man against it. I think he has given a very par-
ticular Account to the Lords, and it is fit he should
do it to you likewise.

Mr Garroway.] I wonder what you sent to this Judge
for. Now he comes, he makes you a great Compliment,
whether you will ask him the Question, or not? If the
Crime be such as that all is at stake upon it; ask him plainly,
what Opinion these Judges gave, but not himself. I hear he
has frankly and freely given an Account in the Lords House.

Sir Henry Capel.] Was this Judge in any public Court
on oath, he ought to tell what he knows. For once, let
us not part with our Laws, without some struggle for it.
I stand amazed that Powell is tender in it here. He is
not to be excused for his Modesty, though a good thing.
When that compliment and excuse is over, for the good
of the Nation, he ought to give you a clear Account. I
hope, you will tell him that this House requires it of him to
inform you, and I believe he will obey you.

[He was called in.]

The Speaker.] Mr Justice Powell, the House has con-
sidered your Answer, and have commanded me to acquaint
you, that for what concerns your self they will not ques-
tion you, nor require an Answer; but for what you please
of the other Judges, there can be no tye of Secrecy; you
are under a duty to tell your Knowlege. This is not
properly an Accusation of the Judges, but your testimony
is required to deliver your Knowledge.

Mr Justice Powell.] I am very free to declare any thing relating
to myself, but to others, unless you command me, I desire your
excuse. ‘Tis at a great distance, a great while since, but I shall

[338]

declare what I remember. I am unwilling to incur the Displea-
sure of this honourable House—Going on Wednesday or Thursday in
Trinity Term, [2 James II,] to dine at Serjeants Inn, in Chancery-
Lane, I was desired to attend at the other Serjeants Inn, in Fleet-
street, at four o’clock; where being met, my Lord Chief Justice
Herbert told us what the business was. He desired my Opinion,
with the rest of the Judges, in Sir Edward Hales‘s Case. He cited
some Cases to make out the King’s Dispensing Power. He cited
Coke‘s 12th Report. After he had done, it was my turn, as Puisne
Judge, to speak. I answered, “The Case was of great Importance,
and, for the present, I was not able to do it, till I had consulted
Books against Michaelmas Term.” He said, “He would have it
on Tuesday.” I said, “The time was short, but I would wait on
him.” Milton, who was then Baron, gave his Opinion, “That he
might dispense.” The next was Lutwich, who said, “He restrain-
ed it to this Case, and thought the King could dispense [in this Case,
but not ^{*These words are inserted from the Journal.}] in Ecclesiastical Cases.” He restrained it to that Case be-
fore us not relating to Religion.” Jenner was next, who said, “The
King might dispense.” Wright was for dispensing. Holloway, I
believe, was for dispensing; I cannot say it positively; I was at a
distance. Streete was against it. Lord Chief Baron Atkins was at
a greater distance; I could not well understand him; he cited se-
veral Cases. Lord Chief Justice Bedingfield‘s Opinion was, “That
the King could dispense.” This is all I can say in the matter trans-
acted so long ago. Nothing was put in writing, nor notes taken of
what was then spoken. As for what concerns myself, I attended my
Lord Chief Justice, at his Chamber. I called on Mr Justice Lutwich,
who went with me, and there I heard first of the Judgment given
on Monday morning. ‘Twas given on Monday, because there was
a Grand Jury of Persons of Quality that day, and it was thought
the next would not have had such an Audience, and therefore
they hasted giving Judgment that day; so I did not deliver my Opi-
nion. I beg pardon, it was my forgetfulness not to name Wythens
and Heath—(Upon the Speaker`s asking of them, &c.) They were with
the majority for the Dispensing Power. I think no persons were
present but the twelve Judges, and I am pretty confident of it.
The Question was delivered by word of mouth, by Lord Chief
Justice Herbert, “Whether the King could dispense with the
Statute of 25 Charles II, and the accepting a Commission by that
Dispensation?” He withdrew.

Sir Samuel Astrey, being interrogated by the Speaker, said,] Lord
Chief Justice Herbert, Wright, and Holloway, were present at pro-
nouncing the Judgment in the Case of Sir Edward Hales and God-
wyn. The Opinion, in the Dispensing Power, was pronounced by
Lord Chief Justice Herbert, who said, “It was not only the Opinion
of the Judges in the Court, but he had consulted the rest of the

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Judges, and it was the Opinion of ten of them.” He said, “There
was another Judge did hesitate when they did meet.” I beg pardon
if I mistake in words, but in substance he said) “Ten were for it.”
Justice Streete was against it, and another Judge did hesitate, but
that he was informed, by Holloway, that Justice Powell had declared
his Opinion for it.” He withdrew.

Sir Robert Henley, being interrogated in like manner, said, ] I
was present in Court 2 James II, when the Case of Hales and
Godwyn was argued. There were present in Court Lord Chief Justice
Herbert, Wythens, Holloway, and Wright. The Case was argued
but once, by a young Gentleman, Mr Northey, against the Dis-
pensing, for Godwyn against Hales, upon an Action of Debt on
the Statute, Tam quam, &c. The King’s Counsel argued for the
Defendant on the other side. I am certain these were the Judges.
I looked on my Book. The Case was argued but once, not seriatim,
but by Herbert only: He said, “He had consulted the Judges,
and they did all concur; but that Streete, and another Judge
doubted.”

Mr Garroway.] I have something to ask more. I would
know who were the King’s Counsel, who argued against
the King? That was a very pleasant thing.

Sir Robert Henley, being asked, &c.] Sir Thomas Powis, the Sol-
licitor-General, argued for Hales, and Mr Northey for the King.

Sir Samuel Astrey.] I cannot charge my memory with Lord
Chief Justice Herbert‘s Argument.

Sir Robert Henley.] I remember, the Precedents cited were for “the
necessity of it, and that the King was judge of that necessity.”
The Rule-Book will exactly tell the day.

The Oath of the Attorney-General was read.