Judgment in the Case Godden v. Hales, 1686

Sir Edward Hales, Baronet, was a gentleman of Kent who served as a member of the House of Commons from 1661 to 1681. In November 1673 he was appointed Colonel of a regiment of foot. From 1679 to 1685 he served as one of the Lords of the Admiralty. He was a close associate of King James II and VII, who appointed him a Privy Councillor, Deputy-Governor of the Cinque Ports, Lieutenant of Dover Castle, Lieutenant of the Tower of London, and Master of the Ordnance. Hales was one of the three men who accompanied King James when he attempted to leave the country from Faversham, December 11, 1688. When Hales eventually joined King James at St. Germains, he was created Baron Hales of Emley, Viscount Tunstall, and Earl of Tenterden.

On November 11, 1685, Hales was formally received into the Catholic Church. King James gave him the command of a regiment of foot, which would normally (in accordance with the Test Act of 1673) have required him to take the oaths of Supremacy and Allegiance, receive Holy Communion in the Church of England, and make a declaration against the doctrine of Transubstantiation; all of these actions would be impossible for a Catholic. His servant Arthur Godden (who was acting upon instructions from Hales) brought a legal action against his employer; an informer in such cases usually received the fine which was due from the offender (in this case £500). Hales was thereupon convicted at the Rochester Assizes, March 29, 1686.

Hales appealed his conviction to the Court of King's Bench. Hales claimed that he had letters patent from the King allowing him to hold his commission without taking the required oaths. Godden (still acting on Hales' instructions) claimed that such a clause in the commission was invalid.

The case was really about whether the King had the power to dispense from religious penal laws in individual cases. The whole scenario was in fact created by the government to prove this legal point. The case was heard by Lord Chief Justice Herbert (later Earl of Portland) and eleven other judges. By a majority of eleven to one the court found in favour of Hales, thus affirming the King's dispensing power.

A printed version of the text can be found in The Case of Sir Edward Hales, Baronet, printed at London for J. Watts, 1689 (Wing C993). Much of the text can also be found on pages 256 - 258 of volume 1 of The Law and Working of the Constitution: Documents 1660-1914, edited by W.C. Costin and J. Steven Watson (London: Adam and Charles Black, 1952).

Then the Lord Chief Justice spoke to this effect:

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 dispense with any penal law whatsoever.

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 anything that does appear) died plead it there, and the jury might have some against the direction of the Court, yet that shall not conclude us; but if the party has good matter to discharge himself, we may show it; as if a man be convicted of an assault and battery agsint the defendant, the plaintiff may give the former conviction in evidence, but yet h 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.

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 supreme lawgiver. 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 be either too wide or too narrow, and there may be many cases which may be out of the conveniences which did endure the law to be made; for it is impossible for the wisest lawmaker to foresee all the cases that may be or are to be remedied, and therefore there must be a power somewhere 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, because 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 avoiding the bond. And as to the cases of buying and selling of offices, 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 disability was attacked 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, rendered himself incapable before he had taken the king's dispensation; for the king's dispensation 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 does disable the party to take, and the king to grant, and there is also a clause in that statue which says that the patent shall be void notwithstanding any non obstante to the contrary, and there is a penalty of 200 pounds 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 not espressly 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 statue 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 of the sheriff be law, as it has been taken ever since Henry VII'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 defy all the world to show 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 denied 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 go 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 therefore I will ask the opinion of all the judges as well in that case as this.

On Monday the 21st of June, after having consulted with all the judges, his lordship delivered their opinions in open court, to this effect:

In the case of Godden and Hales, wherein the defendant pleads a dispensation from the king, it is doubted whether or no the king had such a prerogative. Truly, upon the argument before us, it appeared as clear a case as ever came before this court; but, because men fancy I know not what difficulty when really there is none, we were willing to give so much countenance to the question in the case as to take the advice of all the judges of England. They were all assembled at Serjeants' Inn, and this case was put to them; and the great case of the sheriffs was put, whether the dispensation in that case were legal? because upon that depended the execution of all the law of the nation; and I must tell you that there were ten upon the place that clearly delivered their opinions, that the case of the sheriffs was good law; and that all the attainders grounded upon indictments found by juries returned by such sheriffs, were good, and not erroneous; and consequently that men need not have any fears or scruples about that matter. And in the next place, they did clearly declare, that there was no imaginable difference between that case and this; unless it were, that this were the much clearer case of the two, and liable to the fewer exceptions.

My brother Powell said he was inclined to be of the same opinion, but he would rather have some more time to consider of it; but he has since sent by my brother Holloway to let us know that he does concur with us. To these eleven judges there is one dissenter, brother Street, who yet continues his opinion that the king cannot dispense in this case; but that's the opinion of one single judge against the opinion of eleven.

We were satisfied in our judgments before and, having the concurrence of eleven out of twelve, we think we may very well declare the opinion of the court to be that the king may dispense in this case; and the judges go upon these grounds:

  1. that the kings of England are sovereign princes;
  2. that the laws of England are the king's laws;
  3. that therefore it is an inseparable prerogative in the kings of England to dispense with penal laws in particular cases and upon particular necessary reasons;
  4. that of those reasons and those necessities, the king himself is sole judge; and then, which is consequent upon all,
  5. that this is not a trust invested in, or granted to, the king by the people, but the ancient remains of the sovereign power and prerogative of the kings of England; which never yet was taken from them, nor can be.
And therefore, such a dispensation appearing upon record to come [in] time enough to save him from the forfeiture, judgment ought to be given for the defendant.

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