Edward Herbert (judge) - Godden V Hales

Godden V Hales

At the Rochester spring assizes in 1686 Sir Edward Hales, a Roman Catholic, was convicted for holding and acting under a commission in the army without taking the sacrament and the oaths of supremacy and allegiance in the manner prescribed by the Test Act. Thereupon his coachman, Arthur Godden, brought a collusive action against him in the king's bench for the prescribed penalty of £500, to which Hales demurred, pleading a dispensation under the great seal. The case was argued before Herbert, who delivered formal judgment as follows : ' (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 these reasons and these necessities the king himself is the sole judge.' The plaintiff was accordingly nonsuited. The judgment occasioned general consternation in the country, and the judges were treated with scant respect on circuit. It was impugned as bad in point of law by Sir Robert Atkyns (1621–1709) in a tract entitled ' An Enquiry into the Power of dispensing with Penal Statutes.' Herbert replied with 'A Short Account of the Authorities in Law upon which judgment was given in Sir Edward Hales's case,' in which he argued that 'whatever is not prohibited by the law of God, but was lawful before any act of parliament made to forbid it, the king by his dispensation granted to a particular person may make lawful again to that person who has such dispensation, though it continues unlawful for everybody else.' Atkyns rejoined, and William Atwood, a barrister, also examined Herbert's vindication with much learning and ability.