The Case of Sir Edward Hales (1689)

THE
CASE
OF
Sir EDWARD HALES, Baronet.
Being an
EXACT ACCOUNT
OF THE
TRYAL
UPON AN
ACTION
Of 500 Pound brought against him, with his Plea thereto,
UPON THE
KING`S
Dispensing with the Stat. 25 Car. II. and the Opi-
nion of the Judges thereupon.

LONDON,
Printed for J. Watts, MDCLXXXIX.

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ARGUMENTS
UPON
Sir Edward Hale’s
CASE,
BARONET.

On an Action of 500 Pound brought against him,
with his Plea thereto, upon the King’s Dispensing
with the Stat. 25. Car. II. and the Opinion of the
Judges thereupon.

Ter. Trinity. 2°. Jacob. Secundi Regis.

Godwin versus Sir EDWARD HALES, Baronet.

THE Plaintiff brought an Action of Debt against
the Defendant for 500 Pound, and declares the De-
fendant was admitted such a day to be Lieutenant of
a Foot Company; which Office the Plaintiff avers to
be an Office of Trust, within the 25 Caro. II. and
that the Defendant held the same Office for above 3 Months, and
he did neither in the next Term, nor 3 Months after the grant
of the said Office, take the several Oaths, nor Subscribe the
Declaration, according to the said Statute, and yet he did continue
in the said Office; and that the Defendant, at the Assises held at
Rochester, was Indicted for neglecting to take the said Oaths,

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and there was Legitimo Modo Convictus, as by record of his Com-
mission may more fully appear; and the Plaintiff entitles himself
to the Sum of Five hundred pound forfeiture, given by the Sta-
tute to any that will Sue for the same.

To this the Defendant Pleads, that the King after his admission
into the said Office, and before three Months were ended, did by
his Letters Patents Dispence with, Pardon, and Discharge the De-
fendant from taking the Oaths, and Subscribing the Declaration,
according to the Statute, and off and from all Crimes and Con-
victions incurred, or to be incurred, by the virtue of the said
Statute, and that the King did grant to the Defendant, that he
should hold the said Office, as though the Statute had never been
made.

To this Plea in Bar the Plaintiff Demurred, and the Defendant
joined in the Demur.

The Questions are two, 1. Whether the Defendant ought to
have pleaded this Pardon and Dispensation to the Indictment, or
whether he may not plead it in Bar to the Action?

2. Admitting he may plead it to the Action, whether it be a
good Bar, and whether the King by his Prerogative may dispense
with the Statute?

1. Point. Mr. Northey, who argued for the Plaintiff, held that the Defen-
dant may not be permitted to plead this Matter in Bar of the Acti-
on, because he ought to have pleaded it to the Indictment, and
he having not pleaded it then, the Law will construe it to be
waving of it, as the Case in Brooks Abridgment, Charter of par-
don, 15 °. That in Case of an Indictment for Murther, one that
has pleaded not Guilty, cannot plead the pardon after, unless da-
ted since this Plea of not Guilty. So 3°. Crooke, and 4°. in a Fire
Facias, if the Defendant appears, and has a Release, and does not
plead it, he has lost the benefit of it, and shall not be released, by
Audita Quieta; now the Defendant shall not be permitted to plead
it against the Plaintiff, no more than he could have pleaded it a-
gainst the King; for this Action is in the nature of an Execution
upon a Judgment, and may be likened to this Case; an Admi-
nistrator de foins non, by 17°. Car. Secundi 2. is enabled to sue forth
Execution upon a Judgment, reovered by an Executor of the first
Testator, and the Statute doth put the Administrator in the same
Case as the Executor was; and the Defendant in that Case can al-
ledge no other matter against the Administrator, than he could
have done against the Executor, neither can he avoid this Execu-
tion by any Plea that he might have pleaded to the First Action:
And if this Defendant shall be received to plead this Plea now, he

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will falsifie the Indictment, that was found against him; for if the
offence be pardoned, he ought not to have been Indicted: but ad-
mit this Defendant may well plead this Plea, yet I hold it no
Bar to the Plaintiff’s Action.

{2. Point.} I do allow that the King may Dispense with several Penal Laws
in some Cases, but that Prerogative of the King is bounded, so
that with some Statutes he cannot Dispense, as wherein the
Subject is interessed, as in 4°. Instit. (135) So the King cannot
License a Man to make a Nuisance or Commit a Murther, as
11°. Henry 7th 11. 12. And that this is an Act wherein all the
Subjects have an Interest, I humbly submit to the Judgment of
the Court.

The King cannot Dispense with the Statute 31 of Eliz. Cha. 6.
against Simony, nor with the Statute 17 Edw. 6. 1. against Buying
and Selling of Offices, as appears by the 1°. Instit. 12°. a. 30.
Instit. 154. 20. Crooke 385. Hobart 75. 1°. Institu. 234. a. A Man
that is Disabled by Law to take such an Office, the King cannot
Capacitate him; as if the King should grant to one to sell an Office,
within the Statute Ed. 6°. and to another to buy that Office, these
Grants would be void, as in Vaughan 534, in the Case of Thomas
and Sorrel, there are several Cases put, wherein the King cannot
Dispense with a Statute.

Now by this Statute that we are upon, it is Enacted, that every
Officer shall take the Oaths, that every Person that does neglect
it, shall be disabled to hold the said Office, now this Act does
not work upon the Taking, but upon the Holding, and if
such Conditions be not performed, he is thereby rendred uncapa-
ble to hold his Office, and the King can never Enable a Man
whom the Law hath Disabled, 3° Inst. 154. But I foresee the Case
in 12 Cook 18. will be objected against me, where it is said, that
no Act of Parliament can bind the King from any Prerogative
which is solely and inseparably annexed to his Person, but
that he may Dispense with it by a Non Obstante, and the Book
doth instance in the Case of Sheriffs upon the Statute 23 Hen-
ry 6. which does Enact, that all Patents made or to be made
of any Office of a Sheriff, &c. for term of years &c. within
any County of England, &c. and shall forfeit 200 Pound, yet
saies that Book, the King may Dispence with that Statute, and
Cites 2 Henry 7. 66. to be there so adjudged by all the Judges
of England, and that this is the only Authority that seems to
countenance this Case, but this is the Opinion only of my
Lord Cook, for the Book which he Cites and depends upon, was
never adjudged, as appears by Brook 5. pt. 45. 109. and what was
said in that Case, was only said by one Judge, and never judicially
determined, nor so much as spoken to by any other Judge, there-

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fore the foundation that my Lord Cook has laid failing, the Su-
perstructure must needs fall, and so with Submission, that single
Opinion in 12 Cook, folio 18. is not Law; but admitting the Case
to be Law, that can be no rule to guide this Case by, for that
Statute was made, rather to deprive the King of his Power of
makeing Sheriffs, and so consequently commanding his Sheriffs
not to serve him, than to Disable the Subject, and thereby restrai-
ning the King’s Prerogative, which is so inherent in him; but by
the Statute 25 Car. 2. 2. the Prerogative of the King is not touched,
for the King may grant the Office to any of his Subjects, and it is
only a direction to the Subject to qualifie himself for the King’s
Service, and if he be uncapable to serve the King, ’tis through his
own fault and neglect, and may be punishable for the same, as in
Case of Sir John Reade in 27 and 28. Car. 2. in the Exchequer, he
was made and Sworn Sheriff of Hartfordshire, and neglected to
take the Oaths according to this Statute, by reason of which the
Office became void, and afterwards there was an Information
Exhibited against him upon this Statute we are now upon, for
neglecting to take the said Oaths, and executing his Office, and
upon this Convicted and Fined, and the Court was of Opinion that
no Subject could put himself out of a Capacity to serve the King,
but for so doing he is punishable, and in the Law of the Sheriffs the
Dispensation is in the Patents, but in our Case the Dispensation
is after the Patent, and so a difference between the two Cases: And
for these Reasons, I pray your Lordships Judgment for the
Plaintiff.

Arguments for the Defendant.

Sir Tho. Powis the King’s Sollicitor, Argued for
the Defendant.

{1. Point.} And as to the first Point, that supposing the Defendant ought
to have pleaded the Dispensation to the Indictment, it does not
appear by this Record, but that he did; for the Declaration is that
he was Legitime Modo Convictus, and does not say whether he
Pleaded not Guilty, or how he Pleaded, and for any thing that
appears, he did plead it against the King, yet he may be admitted
to plead it against the Plaintiff who is a Stranger.

{2ly.} If they stand upon this as an Estople, they ought to have relyed
upon it, and replied, that he had the Dispensation at the time of the
Indictment, and refused to plead it, for he that pleads an Estople must

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rely upon it, as the Authorities are which treat of Estoples, and
therefore as to the first point I think, with a submission, we have
very well pleaded the Pardon and Dispensation in Bar of the
Action.

{2. Point.} As to the second point, whether the King can Dispense with
the Statute or no? I humbly conceive, with Submission, the King
may very well dispense with the Statute; ’tis admitted that the
King may in many Cases dispense with an Act of Parliament, and
let us consider why not this? It’s well observed in 2°. Insti. 496.
that the Kings Prerogative is as much the Law of England as any
other Law whatsoever; and the King may upon any Cause moving
him in respect of time, place, or person, by a Non Obstante dispense
with any particular Person, and that he shall not incurr the penalty of
the Statute 7. Cooke 36, 37. Vaughan 347. 333 1°. Rushworth, 472. 473.
there Glanvell in his Argument doth admit a power in the King to
Dispense with Penal Laws, and yet he was no friend to the Prero-
gative. Though the Consent of the Lords and Commons be requi-
site to the making of the Act of Parliament, yet it is the King
that gives the Sanctions to the said Laws, and most of the Antient
Statutes began in form of Charters, as it appears in 8. Cooke 19.
and the Intents and meanings of Acts of Parliament are every day
by the Judges extended and changed, according to a better Rule
of Reason and Justice than the words will bear, Hobart 229. and
the Judges have an authority over the Statute-Laws, to mold them
according to the truest and best Sense. Hobart 346. and Statutes
which have been made against common Right, have been construed
void. 8°. Cooke 118.

There is a Distinction taken in our Books between Malum in se, and
Malum prohibitum.

The former the King cannot Dispense with, the latter he may;
as where the Statute generally prohibits any thing upon a penalty,
which was Lawful before, (the Subject receiving no injury by such
a Dispensation) the King there may Dispense with such an Act.
Vaughan 343. Dyer 5. 2. The King granted a License to carry
Bell metal out of the Realm, notwithstanding the Statute, Dyer 54.
It was Enacted by Statute 4. Hobart 9. that none should convey
Wine into England out of Gascoign, but in English Ship; and the
King granted a License to a Man, that he, his Deputies, and Factors
might convey, &c. in any Ship, notwithstanding the Statute, 28.
Cooke 32. Vaughan 352, 353, 354. Now to apply the Cases to
the Case in question, this is Malum Prohibiter, whether is the Dis-
pensation any Damage to the Subject, if it were any wrong, it
were to the King himself, and sure the King may very well Dis-
pense with that which only relates to himself.

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I must distinguish between those Acts of Parliament which con-
cern Property, and those which concern Government; Acts of
Parliament which concern Property, the King cannot Dispense
with; but those which concern Government he may; and this
for the great Inconveniencies which may happen, or Urgencies of
State which may force him to it, and those un-foreseen at the time
of making the Law; for it may happen by a vicissitude of times
those Laws that were made for the preservation of Government,
should turn to the destruction of it, if the King could not Dispense
with them.

The Common Law in some Cases does very much respect the
Prerogative, That it leaves the private Interest of the Subject un-
regarded, and the King may Dig in any of his Subjects Land for
Saltpeter to make Gunpowder; now this Statute 25 Car. 2°. was
made to diminish the Kings Prerogative, but to secure him from
his Enemies, and for the preservation of the Government; and the
King is best Judge what will be most for his own security, and the
Governments preservation. No Act of Parliament can discharge
the Subject from his Allegiance which he owes to the King, every
one is bound by his Allegiance to serve his Prince when he shall
be required. Therefore no Act of Parliament can disable any man
to serve the King. But they object, that this Act doth make no
one incapable, but at his own Election.

If this were so, it would be in the Election of some or all the
Subjects to incapacitate themselves to serve the King, and the King
would be unserved, for if it were not in the power of the King to
force the Subject, he would not (it may be not) be served at all;
as in the Case of Sir John Read, Cited by the other side; he neg-
lected to take the Oaths, and thereby the Office became void; so
that the next Elected might refuse, and the next; in the mean
time the King’s Service lies neglected, and no business of the County
can proceed for want of a Sheriff. To pardon Murther, is a Pre-
rogative solely and inseparably incident to the King, and may Dis-
pense with Statutes restraining it, 12°. Cook 18. He may Dispense
with non residente, Hobart 146. 3°. Institute. 339. In 3. Insti.
the Lord Cook speaking of Acts of Parliament that were made to
restrain the King’s power of pardoning Murther, says, that such
Acts are good for Kings to follow, but not binding. Cook 18, 19.
There are several Statutes cited, with which the King by his Pre-
rogative may Dispense, as the Statute 36. Hen. 6. which does
Enact, that no Man shall be Sheriff of one County two years to-
gether. Yet it was adjudged by all the Judges of England, says
that Book, that the King may dispense with it; the Statute of 4°.
of Hen. 4°. 31. that no Welshman shall be Justice, or other Officer
whatsoever in any part of Wales; and yet the King may Dispense

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with it; the Statute 8°. Rich. 22. and 33. Henry 8. 24. do Enact,
that none shall be Justice of the Assize in the County where he
was born, and yet the King with a Special non Obstante may Dis-
pense with that Statute; and in Plowden, 502. 13. the King may
grant to a Man to be an Escheater for Life notwithstanding that
Statute.

To answer the Statutes which have been Cited, which the King
cannot Dispense with. I say as to the Statutes of Simony and
Usury, the King cannot Dispense with them, but what is that to
this matter in hand? for there is no restriction of the Subjects ser-
vice, but the King may have the benefit notwithstanding. Then as
to the Statute 5. Ed. 6. 16. against Buying and Selling of Judicial
Offices, of which Statute there is a Clause in the 1st. Institu. 134.
That the King may not Dispense with that Statute. There is a dif-
ference between that Statute and this, for that does Enact, that if
any person shall bargain and sell any Office, &c. shall lose the Of-
fice, &c. and all such Bargains and Contracts shall be void, and
that he that shall give any Sum of Money, &c. for any such Of-
fice &c. shall be a disabled person in Law, to Have, Occupy, or
Enjoy the said Office, &c.

Now the Statute doth disable the party upon doing such an Act, to
take the Office, for the making the bargain is prior to taking the
Office, and thereby he is disabled to take it, so that he can never have
the Office legally vested on him, if the King cannot Dispense with
a Conditional Subsequent, and so that does not come near this. And
for this Reason I humbly pray Judgment for the Defendant.

Then the Lord Chief Justice spake to this Effect.

Ch. Justice. This is a Case of great Consequence, but of as little
Difficulty as ever any Case was, that raised so great an Expectation,
for if the King cannot Dispense with this Statute, he cannot Dis-
pense with any Penal Law whatsoever.

{1. Point. } As to the first point, whether he shall be admitted to plead this
Dispensation, and Pardon to this Action of Debt (having not
pleaded it to the Indictment) and I think he may, for this Court
shall not be bound by the finding of the Jury below, for he (for
any thing that does appear) did plead it there, and the Jury might
have gone against the direction of the Court, yet that shall not Con-
clude us; but if the party has good Matter to discharge himself,
we may shew it; as if a man be Convicted of an Assault and Bat-
tery against the Defendant, the Plaintiff may give the former Con-
viction in Evidence, but yet he must also prove the Battery, or
else he shall not recover.

And this being an Estople, it shall not bind, because the Plaintiff
was not Party to the first Suit.

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{2. Point. } As to the second Point, whether the King can Dispense with
the Act or no, I think it a question of little difficulty; there is no
Law whatsoever but may be Dispensed with by the Supream
Law-Giver; as the Laws of God may be Dispensed with by God
himself; as it appears by God’s Command to Abraham, to offer up
his Son Isaac; so likewise the Law of Man may be dispensed by
the Legislator, for a Law may either be too wide or too narrow,
and there may be many Cases which may be out of the conveni-
encies which did endure the Law to be made, for it is impossible
for the wisest Law-Maker to foresee all the Cases that may be
or are to be Remedied, and thefore there must be a Power some-
where able to Dispense with these Laws. But as to the Case of
Simony that is objected by the other side, that is against the Law
of God, and a special Offence, and therefore Malum in se, which I
do agree the King cannot Dispense with the Act. And as to the
Cases of Usury and Non-Residence, those Cases do come in
under that Rule, that the King cannot Dispense with them, be-
cause the Subject has a benefit by them; for in case of Usury the
Bond is made void by the Statute, and therefore if the King should
Dispense with it, the Subject would lose the Benefit of the avoi-
ding the Bond. And as to the Cases of buying and selling of Offi-
ces, which are objected, there is no need of resolving, whether
the King could Dispense with that Statute or no, because the Party
was disabled to take any such Office by the Contract, and the Disa-
bility was attacqued by force before the Office was vested, so that
the King could not remove the Disability: and so I do agree it
would have been in this Case, if the Defendant had by his
neglect or refusal to take the Oaths, rendred himself incapable be-
fore he had taken the King’s Dispensation, for the King’s Dispen-
sation coming before the Disability attacked, it does prevent it.

The Case of the Sheriff is much a stranger Case than this, and
comes up to it in every particular, for that Statute doth disable the
Party to Take, and the King to Grant, and there is also a clause in
that Statute which saies, that the Patent shall be void, notwith-
standing any Non Obstante to the contrary, and there is a penalty
of 200 pound like to our case, and yet by the Opinion of all the
Judges of England, the King has a power of Dispensing with that
Statute, yet that Statute does expresly say, the King shall not
Dispense with it by a Non Obstante; so if an Act of Parliament
had a clause in it that it should never be repealed, yet without
question, the same power that made it, may repeal it. Besides
that Statute makes the Patents void at the time of granting them,
but by this Statute, the Patents are good at the time of granting
them, and continue so till the neglect to take the Oaths, for
doing of which the Patentee has three Months time; and if the case

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of the Sheriff be Law, as it hath been taken ever since Hen. 7th‘s
time, and is cited for good Law in many of our Books, and never
till now questioned, for the common course and experience have
been according to it, then I defie all the World to shew me any
material difference between that and this, only that this is the
stranger case of the two in many particulars. But because the case
has been denyed by the Plaintiff’s Counsel, it does concern us to
take the Opinion of our Brethren, it being a matter of so great
consequence in the Circuits; for if it be not Law, then there are
some Sheriffs that be not lawful, and so have not power to return
the Juries, and then we have no power to try and give Judgment
upon any Offenders; and it also concerns us who goe into our
Countries to take Advice of it, for if that case is not Law, our
Patents which are Non Obstante‘s to 23 Henry 8. 24. may not be
good, and so we have no Authorities to go the Circuits, and there-
fore I will ask the Opinion of all the Judges as well in that case as
this.

On Monday the 21 of June, after having consulted with all
the Judges, his Lordship delivered their Opinions in open Court,
to this effect:

Upon the Arguments of this Case it did appear to us to be very plain,
but yet for the better Satisfaction of all People, both this Case, and
that of the Sheriffs, were put by me to all the rest of the Judges, and
after some conference, ten of us did agree, that the Case of the Sheriff
was good Law: But they all declared there was no difference between
that and this; my Brother Powel at first doubted, but after concurred
with us in Opinion: But my Brother Streete yet continues his Opinion,
that the King cannot Dispense with that Statute, but there being the
Opinion of eleven Judges against one single Judge, We may very
well declare the King may lawfully Dispense with that Statute.

And we go upon these grounds,

I. That the Kings of England are Sovereign Princes.
II. That the Laws of England are the King’s Laws.
III. That it is an inseparable Prerogative in the King, to Dis-
pense with Penal Laws upon necessity and urgent occasions.
IV. That the King is Sole Judge in that necessity.
V. That this is not in trust given to the King, but ’tis the Anti-
ent Remains of the Crown, which never was nor can be taken
away from him.

Querens nihil capiat per Billam.

FINIS.