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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
LONDON,
Printed for J. Watts, MDCLXXXIX.
THE Plaintiff brought an Action of Debt againſt
the Defendant for 500 Pound, and declares the DeCaro. 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,
Legitimo Modo Convictus, as by record of his ComPlaintiff entitles himſelf
to the Sum of Five hundred pound forfeiture, given by the Sta
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 Defendant
from taking the Oaths, and Subſcribing the Declaration,
according to the Statute, and off and from all Crimes and ConDefendant, 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 Defendantjoined 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?
Mr. Northey, who argued for the Plaintiff,
Defendant
may not be permitted to plead this Matter in Bar of the ActiBrooks Abridgment, Charter of Paro. That in Caſe of an Indictment for Murther, one that
has pleaded not Guilty, cannot plead the pardon after, unleſs dao. Crooke, and 4o. 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 ade foins non, by 17o. Car. Secundi 2. is enabled to ſue forth
Execution upon a Judgment, recovered 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 alDefendant ſhall be received to plead this Plea now, he
I do allow that the King may Diſpenſe with ſeveral Penal Laws
in ſome Caſes,o. Inſtit. (135) So the King cannot
Licenſe a Man to make a Nuiſance or Commit a Murther, as
11o. 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 1o. Inſtit. 12o. a. 30.
Inſtit. 154. 20. Crooke 385. Hobart 75. 1o. 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. 6o. 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 uncapao
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 Henry
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, thereCook has laid failing, the SuCook, 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 reſtraiCar. 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.
And as to the firſt Point,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.
If they ſtand upon this as an Eſtople,
As to the ſecond point,o. 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. 1o. 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 PreroCooke 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. 8o. 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
The Common Law in ſome Caſes does very much reſpect the
Prerogative, That it leaves the private Intereſt of the Subject unCar. 2o. 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 nego, Cook 18. He may Diſpenſe
with non reſidente, Hobart 146. 3o. 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 PreHen. 6. which does
Enact, that no Man ſhall be Sheriff of one County two years toEngland, ſays
that Book, that the King may diſpenſe with it; the Statute of 4o.
of Hen. 4o. 31. that no Welſhman ſhall be Juſtice, or other Officer
whatſoever in any part of Wales; and yet the King may Diſpenſe
o. 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 DiſPlowden, 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 ſerEd. 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&c. ſhall loſe the Of&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&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.
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 DiſPenal Law whatſoever.
As to the firſt point,
And this being an Eſtople, it ſhall not bind, becauſe the Plaintiff was not Party to the firſt Suit.
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 conveniMalum 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
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, notwithNon 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
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
On Monday the 21 of June, after having conſulted with all
the Judges, his Lordſhip delivered their Opinions in open Court,
to this effect:
Ʋpon 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
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