Parliamentary Debates on Godden v. Hales in Journals of the House of Commons (1742)

JOURNALS
OF THE
HOUSE of COMMONS.

From DECEMBER the 26th, 1688,

TO

OCTOBER the 26th, 1693,

In the Fifth Year of the Reign of

KING WILLIAM and QUEEN MARY.

Printed by Order of the House of Commons.

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[18th June, 1689]

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The House being informed, that Mr. Justice Powell
attended, according to their Order Yesterday;

Resolved, That he be called in; and examined, in rela-
tion to the Case of Godwyn and Hales; and what Questions
had been proposed to the Judges concerning the King’s
Power of Dispensing with the Laws; and what Resolu-
tions the Judges gave thereupon.

And a Chair was ordered to be set for him within the
Bar, on the Left Hand.

And he, being called in, came and stood behind the
Chair, the Serjeant with his Mace standing by him on his
Right Hand.

And being asked concerning the Matter aforesaid;

He said, That Sir Robert Wright being then Puisne
Judge of the King’s Bench, being of Serjeants Inn in
Chancery Lane, told him upon Wednesday or Thursday in
Trinity Term, 2 Jac. II. before the Judgment given in
Godwyn and Hales, that he was ordered by Sir Edward
Herbert, the then Chief Justice of the King’s Bench, to
acquaint the Judges of that Inn, that he was commanded
by the King to assemble all the Judges upon the Friday
then next following, at the Hall of Serjeants Inn in Fleet-
street, at Four of the Clock in the Afternoon of that Day,
to consult with them upon a certain Matter: And that ac-
cordingly all the Judges met there: Where, after the
Judges were sat, the Lord Chief Justice Herbert related
the Matter they were met about; and put the Case
of Goodwyn and Hales to this Effect; viz. “That an In-
formation was exhibited against the Defendant, upon the
Statute of 25 Car. II^di, for exercising the Office of a Co-
lonel of a Regiment of Foot, without taking the Oaths
of Allegiance and Supremacy, and the Test, as by the
said Act is prescribed; to which Information the Defend-
ant pleaded a Patent from the King under the Great Seal;
whereby he dispensed with him taking the said Oaths and
Test, with a Non obstante to the said Statute;” and desired
their Opinions, Whether the King had Power to dispense
with the said Statute?

And, being then asked, What were the Opinions then
delivered by the Judges? he desired the House would ex-
cuse him from answering to that Question.

Whereupon he was ordered to withdraw.

And the House entering upon the Debate of his said
Answer;

Resolved, That he be called in again; and required, in
the Name of the House, to declare what Opinions the
several Judges then gave, except, as to himself, they left
him to his own Liberty, whether he would acquaint the
House therewith or not.

And he being called in again, and acquainted with the
Resolution of the House; he thereupon did give an Ac-
count to the Effect following;

That the Lord Chief Justice argued upon the Case at
large; and cited several Cases, particularly those of 2 Hen.
VII. Calvin‘s Case, Co. 7. and Coke‘s, 12 Report; and then
called to him the said Justice Powell (being the Puisne
Judge), to deliver his Opinion first: Whereunto he

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answered, That he never heard the Case put, before that
Time; and found it to be a Case of very great Importance;
and that he durst not then deliver any Opinion, before he
had well and advisedly consulted the Books; and therefore
desired Time. That the Chief Justice asked him, What
Time he would have; and he desired Time until Michael-
mas Term: But the Lord Chief Justice told him, that
could not be; for that Judgment was to be given upon
Tuesday then next, being the last Tuesday in the Term.
Whereupon he answered, He would wait upon his Lordship
on Monday in the Afternoon, at Four of the Clock.

That, next after him, Mr. Baron Milton in his Order,
was asked his Opinion: Who was for the Dispensing Power.

That Justice Lutwich was of Opinion, the King could
dispense in that Case, but not in Ecclesiastical Affairs;
or Civil Matters: And, when he found some others de-
clare the King had a dispensing Power, but limited it not;
he stood up and said, Take notice, I pray, that I restrain
it to this particular Case.

That Baron Jenner was for Dispensing with the said
Statute of 25 Car. II. and also Justice Wright, and Justice
Holloway.

That Justice Street was against Dispensing in that Case.

That the Lord Chief Justice Bedingfield was for the
Dispensing Power.

That the Lord Chief Baron Atkins said, That if the Cases,
as they were cited by the Lord Chief Justice Herbert,
were Law, viz. 2 H. VII Co. 12 Report; then he was of
Opinion, the King might dispense in this Case: And spake
further (as he takes it), Either that he knew not whether
those Cases cited were Law, or that he thought they were
not Law; but that, by the Reason of the Distance of Place,
he could not well hear him: And that, about Four or Five
Days after, he waiting upon the Lord Chief Baron at
his Chamber; and falling into a Discourse touching the
ill Consequences of that Opinion; he spake to this Effect;
“Brother, you heard what I said in that Matter: ” That
he answered the Lord Chief Baron, that he was remote
from him, and could not distinctly hear what he said; but
took it, that his Lordship delivered no positive Opinion:
For that his Lordship doubted whether 2 H. VII. and 12
Co. were Law: That the Lord Chief Baron answered,
That he thought the Cases cited were not Law; and now
was satisfied that the Lord Cooke was mistaken in applying
the Case 2 H. VII: And then declared he was of Opinion
the King could not dispense with that Statute of 25 Car.
II.

That the Lord Chief Justice Herbert was for the King’s
Dispensing with the Statute 25 Car. II: And that Justice
Withens and Baron Heath were of the same Opinion, with
the Majority. That he afterwards, about Four of the
Clock in the Afternoon, upon Monday, as he was going
towards the Lord Chief Justice Herbert‘s Chamber, called
at Mr. Justice Lutwich‘s Chamber; and there was in-
formed by a Gentleman, that was, that Morning, in the
Court of King’s Bench, that Judgment was given that
Morning before he had delivered his Opinion to the Lord
Chief Justice; by reason that there were Persons of
Quality in the Court upon another Occasion: And fur-
ther said, That the Opinion he went to deliver to the
Lord Chief Justice, was against the Dispensing Power.

And then he withdrew.

The House was informed, that Sir Robert Henley and
Sir Samuel Astrey attended, according to their Order Yes-
terday.

And they were called in to the Bar; and gave an Ac-
count of the Judges in the King’s Bench, when Judg-
ment was given in the Case of Goodwyn and Hales; viz.
The Lord Chief Justice Sir Edward Herbert, Sir Francis
Withens, Sir Rich. Holloway, and Sir Robert Wright; and
they all concurred in their Opinion: And that Sir Edward
Herbert pronounced the Judgment; and said, He had
consulted the other Judges: And that it was the Opinion
of Ten of them; and that One dissented, and One hesitated
upon it: But that he had been informed, that Morning
by Sir Richard Holloway, that the latter of them was of
the same Opinion: And that the Case was argued but once

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by Mr. Northey against the Dispensing Power, and by the
King’s Counsel (Sir Thomas Powis) for it: And that the
Judgment was pronounced by the Lord Chief Justice alone,
without the other Judges doing it seriatim, as is usual:
And that there were some Positions or Theses laid down
by the Lord Chief Justice; some of which were, That the
Laws were the King’s Laws; that the King might dis-
pense with his Laws in case of Necessity; and that the
King was Judge of that Necessity.

And then they withdrew.

[House considers other business.]

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And a Debate arising upon the First Head of Excep-
tions concerning the Dispensing Power, and the Case of
Goodwyn and Hales;

Resolved, That Sir Edward Herbert be excepted out of
the Bill of Indemnity, upon this Head.

Resolved, That Sir Francis Withens be excepted out of
the Bill of Indemnity, on this Head.

Resolved, That Sir Richard Holloway be excepted out
of the Bill of Indemnity, on this Head.

Resolved, That Sir Robert Wright be excepted out of
the Bill of Indemnity, upon this Head.

And then the House adjourned till To-morrow Morn-
ing, Nine of the Clock.