Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	defendant_n	king_n	plaintiff_n	1,446	5	10.0346	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A35644	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 opinion of the judges thereupon.	Hales, Edward, Sir, d. 1695, defendant.	1689 (1689)	Wing C993; ESTC R8988	8,238	11

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 Opinion of the Judges thereupon LONDON Printed for J. Watts MDCLXXXIX 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 o. 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 Defendant 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 and there was Legitimo Modo Convictus as by record of his Commission may more fully appear and the Plaintiff entitles himself to the Sum of Five hundred pound forfeiture given by the Statute 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 Defendant from taking the Oaths and Subscribing the Declaration according to the Statute and off and from all Crimes and Convictions 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 Mr. Northey who argued for the Plaintiff held that the Defendant may not be permitted to plead this Matter in Bar of the Action 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 Pardon 15 o. That in Case of an Indictment for Murther one that has pleaded not Guilty cannot plead the pardon after unless dated since this Plea of not Guilty So 3 o. Crooke and 4 o. 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 against the King for this Action is in the nature of an Execution upon a Judgment and may be likened to this Case an Administrator de foins non by 17 o. 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 alledge no other matter against the Administrator than he could have done against the Executor neither can he avoid this Execution 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 will falsifie the Indictment that was found against him for if the offence be pardoned he ought not to have been Indicted but admit this Defendant may well plead this Plea yet I hold it no Bar to the Plaintiff's Action 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 o. Instit 135 So the King cannot License a Man to make a Nuisance or Commit a Murther as 11 o. 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 o. Instit 12 o. a. 30. Instit 154. 20. Crooke 385. Hobart 75. 1 o. 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 o. 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 uncapable to hold his Office and the King can never Enable a Man whom the Law hath Disabled 3 o 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 therefore the foundation that my Lord Cook has laid failing the Superstructure 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 restraining 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 't is 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 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 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 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 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 't is 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 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. 1 o. 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 Prerogative Though the Consent of the Lords and Commons be requisite 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 o. 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 Dispensation any Damage to the Subject if it were any wrong it were to the King himself and sure the King may very well Dispense with that which only relates to himself I must distinguish between those Acts of Parliament which concern 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 unregarded and the King may Dig in any of his Subjects Land for Saltpeter to make Gunpowder now this Statute 25 Car. 2 o. 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