and where it is a collateral Suit not depending upon that Record An Action against the Sheriff for an Escape of one taken in Execution this is a dependant Action and is grounded upon the Record of the Judgment given against the Party that escap'd The Sheriff cannot aver any thing against that Record and examine it over again nor can he take any advantage of Error or erroneous proceeding in obtaining that Judgment Saunders Rep. 2 part 101. So in an Action of Debt grounded upon a Judgment or in an Audita quaerela to be reliev'd upon a Judgment And so in our Case this Action of Debt for the 500 l. is grounded upon the Conviction which must stand for truth as long as it remains in force not avoided by Error or Attaint A Writ of Error to reverse a Judgment is a dependant Action In error the Plaintiff may not averr any thing against the Record Mullens versus Weldy Siderfin's 1st part 94. Error was sued in the Kings-Bench to reverse a Judgment given in the Palace-Court And the Plaintiff in Error assign'd for Error that the Duke of Ormond who is principal Judge of that Court by Patent was not there It was agreed by the Court that it might not be assign'd for Error for it was contrary to the Record But per Cur. in an Action of Trespass or false Imprisonment which says that Report are collateral Actions he may falsifie and assign that if he be taken upon such Judgment So if a man be indicted and convict of an Assault and Battery and afterwards the person so assaulted brings his Action for the Battery this hath no dependance upon the Indictment or Conviction for it may be sued though there were no Indictment but is a distinct and collateral Suit. The Indictment and Verdict is no Estoppel nor can so much as be given in Evidence as is held by the whole Court in the Case of Sampson versus Yardley and Tothill 19 Car. 2. B. R. Kebles's 2 part 384. The like in an Appeal of Murder Kebele's 2 part 223. Another Penalty upon the Offender against this Statute of 25 Car. 2. is That he shall be disabled to sue in any Action Now suppose a person convict at the Assizes sues an Action may not the Defendant in that Action take the advantage of that Disability and plead the Conviction As in Case of an Outlawry pleaded in Disability there need not be set forth all the proceedings in that Suit wherein the Plaintiff was outlawed but he may plead the Record of the Outlawry and rely upon it and it shall not be examin'd whether there was any just cause to sue him to the Outlawry or not The Indictment the Defendant's Plea to it and the Verdict upon it have determin'd the matter of Fact that the Defendant is guilty of the Offence against this Act of Parliament The Act it self hath pronounc'd the Judgment which consists of many particulars one whereof is That the Defendant shall forfest 500 l. to him that will sue for it And the Action of Debt for the 500 l. brought by the Plaintiff grounded upon all these is in the nature of an Execution And all these put together are not several and distinct Suits but in effect all but one Suit and Process one depending upon the other The second Point is Whether the Dispensation pleaded by the Defendant be a good Bar to the Action of Debt And this is properly called The Matter in Law and the great Point of the Case for which I refer the Reader to my Argument at large POSTSCRIPT BEING SOME Animadversions UPON A Book writ by Sir EDW. HERBERT Lord Chief Justice of the Common Pleas ENTITULED A short Account of the Authorities in Law upon which Judgment was given in Sir Hales's Case SINCE the finishing of my Argument about the Power of Dispensing with Paenal Statutes a Book came to my hands touching the same subject entituled A short Account of the Authorities in Law upon which Judgment was given in Sir Edward Hales his Case written by Sir Edward Herbert Chief Justice of the Common Pleas in vindication of himself And although I am of opinion that the substance of all the Arguments contained in the said Book are fully answered in my aforesaid Discourse yet I hold it necessary to make some Animadversions upon the said Book and to point out readily to the Reader the several Pages of my Discourse wherein the Arguments of the Chief Justice are more directly and particularly treated of and answered And there being great Reverence justly due to a Person that bears so high a Character as also to a Judgment given in that Superiour Court of the King's Bench and by advice of all but two of the rest of the Judges as I now hear some short Apology had need be used for that freedom I have taken to animadvert upon it being as I am but in a private station In short therefore I have not undertaken it out of any vain conceit of my own Abilities but out of a sincere desire to inform such as in the approaching Parliament are like to have this great Case in Judgment before them and some may possibly not be at leisure as I have been to study the Case the matter being of a mighty importance Nor have I entred the Lists upon any contentious humour or taking any advantage of the late Happy Change of publick Affairs I am I thank God more inclin'd to commiserate the Distress that may befal any persons by the change of the times it having been my own case so lately although they differ from me in Judgment or Interest I am very far from insulting over any whatever hard usage I my self have met with Nemo confidat nimiûm secundis Nemo desperet meliora lapsus My Apology is this 1. I was engaged in the Argument before the coming forth of this Book and it happening into my hands before my publishing of my Discourse I could not decline the observing something upon it without being suspected to have given up the Cause 2. The Lord Chief Justice himself hath by his Book given fresh occasion fairly to discuss the point again by declaring that he expects as we all do that it will receive a disquisition in Parliament 3. And as the Chief Justice hath endeavour'd with as much as can be said to give the World satisfaction in the justice and right of the Case to maintain the Judgment given so he is well known to be of that ingenuity and good temper and candour as willing to receive a satisfaction if any further Argument to the contrary may be so happy as to convince him The Chief Justice Herbert pag. 6. gives us the Definition of a Dispensation out of Sir Coke's 11th Report fol. 88. viz. Dispensatio mali prohibiti est de jure Domino Regi concessa propter impossibilitatem praevidendi de omnibus particularibus And again Dispensatio est mali prohibiti provida relaxacio utilitate ceu
AN ENQUIRY INTO THE Power of Dispensing WITH PENAL STATUTES Together with Some Animadversions UPON A Book writ by Sir EDW. HERBERT Lord Chief Justice of the Court of Common Pleas ENTITULED A short Account of the Authorities in Law upon which JUDGMENT was given in Sir Edward Hales 's Case By Sir ROBERT ATKYNS Knight of the Honourable Order of the Bath and late one of the Judges of the Common Pleas. Digna vox est Majestate Regnantis Legibus Alligatum se esse Principem profiteri LONDON Printed for Timothy Goodwin at the Maiden-head against St. Dunstan's-Church in Fleet-street 1689. ADVERTISEMENT January the 21st 1689. TO Morrow will be Published by Tim. Goodwin at the Maiden-head against St. Dunstan 's Church in Fleet-street The Power Jurisdiction and Priviledge of PARLIAMENT And the Antiquity of the House of Commons asserted Occasioned by an Information in the King's-Bench by the Attorney General against the Speaker of the House of Commons As also a Discourse concerning the Ecclesiastical Jurisdiction in the Realm of England occasioned by the late Commission in Ecclesiastical Causes By Sir Robert Atkyns Knight of the Honourable Order of the Bath and late one of the Judges of the Court of Common-Pleas AN ENQUIRY INTO THE Power of Dispensing WITH Penal Statutes 25 CAR. II. Cap. 2. An Act for preventing Dangers which may happen from Popish Recusants FOR preventing Dangers which may happen from Popish Recusants and quieting the Minds of his Majesties good Subjects Be it enacted c. That every person that shall bear any Office Civil or Military c. or shall have Command or Place of Trust from or under his Majesty c. within the Realm of England c. shall personally appear in the Court of Chancery or of the Kings-Bench or at the Court of Quarter-Sessions in that County where he shall reside within three Months next after his Admittance into any of the said Offices and there in open Court take the several Oaths of Supremacy and Allegiance and shall also receive the Sacrament of the Lord's Supper according to the Usage of the Church of England in some Parish-Church upon some Lord's-day immediately after Divine Service And every the person aforesaid that doth or shall neglect or refuse to take the said Oaths and the Sacrament in the said Courts and at the respective times aforesaid shall be ipso facto adjudged uncapable and disabled in Law to all intents and purposes whatsoever to have occupy or enjoy the said Office or Employment and every such Office and Place shall be void and is hereby adjudged void And every person that shall neglect or refuse to take the said Oaths or the Sacrament as aforesaid and yet after such neglect or refusal shall execute any of the said Offices after the said times expired wherein he ought to have taken the same and being thereupon lawfully convicted upon any Information c. in any of the King's Courts at Westminster or at the Assizes every such person shall forfeit 500 l. to be recovered by him that shall sue for the same And at the same time when the persons concerned in this Act shall take the said Oaths they shall likewise subscribe the Declaration against the Belief of Transubstantiation under the same Penalties as by this Act is appointed Paschae 2 JAC. II. In the King's-Bench Arthur Godden Plaintiff in an Action of Debt of 500 l. grounded upon the Act of 25 Car. 2. for preventing Dangers from Popish Recusants Sir Edward Hales Bar t Defendant THE Plaintiff declares That the Defendant after the First day of Easter Term 1673. sc. 28 Nov. 1 Jac. 2. at Hackington in Kent was admitted to the Office of a Colonel of a Foot-Regiment That being a Military Office and a Place of Trust under the King and by Authority from the King. And the Defendant held that Office by the space of three Months next after the 28 Nov. 1 Jac. 2. And from thence till the time of this Action begun he was and still is an Inhabitant and Resident of the Parish of Hackington And the Plaintiff taking it by Protestation that the Defendant within three Months next after his Admission into the said Office of Colonel did not receive the Sacrament in Manner as the Act directs but neglected to receive it Avers that the Defendant did neglect to take the Oaths of Supremacy and Allegiance either in the Chancery or in the Kings Bench or at any Quarter-Sessions in Kent or in the Place where he was resident either the next Term after his admission to his said Office or within three Months after And that the Defendant after such neglect sc. 10 Mar. 2 Jac. 2. at Hackington in Kent did exercise the said Office and still doth contrary to the Statute of 25 Car. 2. for preventing Dangers from Popish Recusants Whereupon the Defendant at Rochester at the Assizes held 29 Mar. 2 Jac. 2. was duly Indicted for such his neglect and for executing the said Office contrary to the said Statute And thereupon duly Convict as by the Record thereof appears whereupon the Plaintiff became entituled to this 500 l. as forfeited by the Defendant The Defendant pleads that the King within the three Months in the Declaration mentioned and before the next Term or Quarter-Sessions after his admittance to the said Office and before his Suit began sc. 9 Jan. 1 Jac. 2. by his Letters Patents under the Great Seal and here produced in Court did dispence with pardon remit and discharge among others the Defendant from taking the said Oaths and from receiving the Sacrament and from subscribing the Declaration against Transubstantiation or Tests in the Act of 25 Car. 2. for preventing Dangers from Popish Recufants or in any other Act and from all Crimes Convictions Penalties Forfeitures Damages Disabilities by him incurred by his exercising the Office of Colonel Or by the Act intituled An Act for the Preserving of the King's Person and Government by disabling Papists from sitting in either House of Parliament Or by the Acts made in the first or third Years of King James the First or the Acts made 5 Eliz. or 23 or 29 or 35 Eliz. And the King by his Letters Patents granted that the Defendant should be enabled to hold that Office in any Place in England or Wales or Berwick or in the Fleet or in Jersey or Guernsey and to receive his Pay or Wages Any Clause in the said Acts or in any other Act notwithstanding non obstante that the Defendant was or should be a Recusant convict As by the said Letters Patents doth appear Whereupon the Defendant prays the Judgment of the Court whether the Plaintiff ought to maintain this Action The Plaintiff demurr'd generally to this Plea. The Defendant joyned in Demurrer Judgment is given for the Defendant THE Order I shall observe in speaking to this Case as to the Point upon the Dispensation shall be this First I shall open this Act of 25 Car. 2.
pleaded it And he is now Convict according to the direction of the Act of 25 Car. 2. so that he now comes too late to plead it to this Action for he cannot falsifie the Conviction nor averr any thing against the Record of it and bring the Fact to be tryed over again in this Action but is concluded and estopp'd in Law to say any thing to the contrary of that Record by which he is found guilty of the Offence against this Act of Parliament The Defendant either did plead this Dispensation or Pardon to the Indictment in discharge of the Indictment and it hath been over-ruled by the Judges at the Assizes as by Law it ought to be being no good Plea Or he might have pleaded it if he had been advis'd it had been a good Plea. And not having done it he hath elaps'd his time and now comes too late to plead it being Convict of the Crime To this it was objected as I hear That the Plaintiff if he will take the advantage of an Estoppel ought to have set it forth by way of Replication to the Defendants Plea and to have relied upon it For the Rule is That he that pleads an Estoppel must rely upon it as an Estoppel It is true if a man will plead an Estoppel he must rely upon it But in this Case the Plaintiff does not plead the Estoppel but the Estoppel appears by the Declaration and the Defendant's own Plea together so that there was no need for the Plaintiff to set that forth by way of Replication which doth sufficiently appear by the Defendant's own Plea viz. That he did not take the Tests within the time limitted by the Act and the Conviction is confess'd by his Plea and joyning in Demurrer If a man recover a Debt upon a Bond and before Execution dies if his Executor sue a Scire Facias upon that Judgment the Defendant cannot plead any Plea that he might have pleaded before as Non est factum or by Dures or the like for he is concluded by the Judgment In Jason and Ketes Case in Siderfen's Reports fol. 43. by Bridgman Chief Justice a man shall never help himself by Audita querela tho' that is an equitable Suit at Law for any matter that he might have pleaded before There is no Estoppel in this Case for the Conviction is upon an Indictment which is the King's Suit and this is the Suit of another viz. the now Plaintiffs and so they are two distinct Suits The Conviction upon the Indictment is an Estoppel against the Defendant himself of which any man may take the advantage and he himself shall never be admitted to averr against it As in Maynyes Case in Leonard's first part fol. 3. An Attainder for Treason is an Universal Estoppel of which any Stranger may take the advantage not only against the Party attainted but against his Wife too if she sue for Dower And it does not run in Privity By Manw. Ch. Bar. Where a man is attainted by his own Confession of a Felony a Stranger is not Estopp'd to say he was not guilty But if A. commit Felony and after enfeoff I. S. of his Land and after A. is attaint of this Felony by Verdict there I. S. is Estopp'd and may not averr that A. was not guilty because he claims under him much less shall A. himself averr against the Verdict that he is not guilty If a man be acquitted of Felony all the World says Grevil in Kellow Rep. 81. b. is Estoop'd to say the contrary So vice versâ if he be convict by the same reason As to that which is objected that the Conviction is upon an Indictment which is the King's Suit but this is another Suit and therefore the Verdict shall not conclude the Defendant in this Suit. This is not another Suit but in effect an Execution upon the Conviction and grounded upon that Record and therefore not meerly a new Suit but a dependant Action as a Writ of Error or an Audita quaerela or a Scire Facias upon a Record are dependant Suits or an Action of Debt upon a Judgment The Act of 25 Car. 2. c. 2. hath made it Criminal in any person after his neglect of taking the two Oaths or of the Sacrament by the times limited to execute any such Office or Place of Trust and for such Offence hath made him indictable at the Assizes and upon a Conviction the Offender incurs among other Penalties the forfeiture of 500 l. and gives it to any one that will sue for it in an Action of Debt So the Statute hath directed the method of trying the Offence and of convicting the Offender by Indictment at the Assizes And if he that sues for the Forfeiture shall be driven to prove the Offence over again then the Conviction at the Assizes serves for nothing but was all in vain And such Construction defeats the intention of the Law-makers for they intended this for the only Tryal and not to have several Tryals for suppose it should be tryed again in this Action and a Verdict pass for the Defendant here shall be Tryal against Tryal and Verdict against Verdict And such Construction ought to be made of Acts of Parliament as may not elude but agree with the intent of the Law-makers and so as that no Words Clause or Sentence shall be altogether idle and insignificant And this Conviction upon the Indictment is the very ground of the Action of Debt brought by the now Plaintiff for the words of the Act are And being thereupon lawfully Convicted upon any Indictment every such person shall from thence-forth forfeit 500 l. So that till there be such a Conviction there is no Forfeiture incurr'd of 500 l. nor no Action can be brought for the 500 l. The Offence must be prov'd and determin'd before any Action can be brought and therefore the proof of the Offence whereof the Defendant is convict must not be made in this Action over again if it must what serves the Conviction for Suppose the Plaintiff here had brought his Action after the neglect of the Defendant of taking the Oaths and of receiving the Sacrament and his acting in his Office after such neglects and before any Conviction upon Indictment and had only averr'd that the Defendant had so neglected and yet acted would this Action have been well brought Or suppose there had been a Conviction but the Plaintiff had not set it forth in his Declaration but had only averr'd the Offence committed would this have been a good Declaration Surely it would not This proves that the Record of the Conviction is the very ground and foundation of this Action and the Action would not lie without such Conviction so that it is not a meer new Action but a dependant Action And the usual difference is where the Action is a dependant Action depending upon a Record and grounded upon it