...

or not. . . . Now there only remains one thing, that is, whether or no he was the publisher of this book. . . . If you are satisfied in your conscience that you believe he is not the author, you must acquit him. If you are satisfied it is not he, you must find him Not guilty.

(The Jury went from the Bar and nigh an hour after returned, and brought him in guilty.)

(From Scroggs', C.J., charge to the jury. S.T. 1126 et seq.)

VII

THE CASE OF THE CHARTER OF THE CITY OF LONDON

33-35 Charles II., 1681-1683.

[This important case, which "gave a pretext for the most dangerous aggression on public liberty that occurred" (Hallam) in the reign of Charles II., raised, beside the specific legal points involved, the theory and powers of the royal prerogative. An information by Quo Warranto was brought into the Court of King's Bench against the Corporation of London-the object being to obtain the surrender of the charter into the king's hands-on the ground (1) that the imposition of a toll on certain goods in the city markets was extra vires; (2) that the petition of the Common Council to the king in December, 1679, was a misdemeanour which warranted a judgment of forfeiture. Practically the following points were involved in the arguments: (1) Whether a corporation can be forfeited; (2) whether an act of the Mayor, Aldermen, and Common Council be an act of the Corporation; (3) whether the toll and the petition being such acts justify forfeiture. Judgment was given on all these against the Corporation. On the importance of the decision and the subsequent history of the case see Hallam, C.H. ii. 453 et seq.; S.T. viii. 1039-1358; Macaulay, H.E. ch. ii.; Ranke, H.E. iii. The text of the citations from the judgment has been collated with the MS. Report in the Owen Wynne MS. vol. 75, in the Codrington Library of All Souls' College.]

Saunders, C.J. But this is one thing, Mr. Pollexfen, that I would say to you upon your argument, what a grievous thing would it be, if so be, the being of a corporation might be forfeited or dissolved, because say you, it is possible that all the corporations in England may be dissolved because they have committed such things that may be forfeitures. We must put the scales equal on both sides. Let us then consider the other side, whether, if so be that it should be taken

for law, that a corporation is indissoluble or cannot be dissolved for any crime whatsoever, then those two things do not follow; First, you will shut out the King's Quo Warranto, let him have what reason he can for it, or let them do what they will: And in the next place, you have set up so many independent commonwealths. For if a corporation may do nothing amiss whatsoever, what else does follow, for now I am not on the point, whether this corporation has done any act that is amiss, but considering your argument in general, when you make it a thing of such ill consequence that a corporation should be forfeited by any crime; but I say now, to put in the other scale the mischiefs that would follow, if so be law a corporation might not be dissolved for one fault or another: But let them do what they would, it should still remain a corporation. Then it is plain, they are so many commonwealths independent upon the king, and the king's Quo Warranto is quite shut out; that is mighty considerable. For a man to make an argument and to say it would be very mischievous, inconvenient, or worse to the city of London, if a judgment should be given against it, is not to govern us . . . what we are to look at principally is what the law is, for that way the law goes, we must go . . . and that the way the law has settled has the least inconvenience in it. . . .

Jones, J. We are all unanimously agreed in one and the same opinion in this whole matter. . . . First, Then as to the great preliminary point, Whether a corporation aggregate such as the city is, may be forfeited or seized into the king's hands. We are of opinion that it may, upon breach of that condition which the law annexes to it. . . . And this seems evident beyond all contradiction . . . by the statute of 28 Edward III. cap. 10. . . . And as to a forfeiture it seems to me plain, by the general act of oblivion, by which all bodies. corporate and politic as well as persons natural are pardoned.. It is likewise plain by the very act for regulating corporations . . . and if the law should be otherwise it would erect as many independent republics in the kingdom as there are corporations aggregate, which, how fatal that might prove to the crown and the government now established, every man may easily conceive. To the Second point, we are of opinion that the assuming a power by the mayor, commonalty and citizens of London, to make by-laws, to levy money upon the subject, and the levying vast sums of money thereby is a great oppression upon the people . . . and so a just cause of forfeiture. Thirdly, We are of opinion, that the charge touching the ordering, exhibiting and printing the Petition, so scandalous to the king and government, so dangerously tending to the seduction of his

subjects, to a dislike of his person and government, and so evidently tending to sedition thereby and rebellion, is another just cause of forfeiture. Fourthly we are of opinion, that these acts are the acts of the corporation, being so alleged by the replication, and not sufficiently answered by the rejoinder. . . . And it is the judgment of this Court: That the franchise and liberty of London be taken into the king's hands. . . . And it is the opinion of the whole Court.

VIII

GODDEN v. HALES

2 James II., 1686.

[Sir Edward Hales, the defendant, was a Roman Catholic and lieutenant of the Tower, who had neglected to take the oaths of supremacy and allegiance prescribed by the statute 25 Car. II. c. 2. A collusive action was brought against him by Arthur Godden with a view of establishing the prerogative power claimed by the Crown to dispense with the operation of the statute. Hales was indicted and convicted at the Rochester Assizes, and the action was brought to recover the £500 awarded by the statute to the informer. It was argued before twelve judges in the King's Bench, when Hales pleaded a royal pardon and dispensation in bar of the action. Eleven judges (Street J. alone dissenting) agreed that the plea in bar was good, i.e. that the Crown had the power to dispense. The case is therefore remarkable: (1) when compared with the decision in that of The Seven Bishops; (2) for the arguments explicitly laid down by Lord Chief Justice, Herbert, which were trenchantly dealt with in the Bill of Rights. See S.T. xi. 1166-1315 (the appendices quote contemporary pamphlets in which the judgment is minutely examined); Hallam, C.H. iii. ch. xiv.; Macaulay, H.E. ch. vi.; Broom, C.L. 492-506.]

Then the Lord chief Justice Herbert spake thus:

Chief 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 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) 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) did plead it there, and the jury might have gone against

the direction of the court, yet that shall not conclude us: but if the party has good matter to discharge himself, he may shew it: as if a man be convicted of an assault and battery against the defendant, the plaintiff may give the former conviction in evidence, but yet he must also prove the battery, or else he shall not recover.

And this being an estapel, it shall not bind because the plaintiff was not a 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 with 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 conveniencies which did induce the law to be made; for it is impossible for the wisest lawmaker to foresee all the cases which 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. 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 the 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 that 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 stronger 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 says, that the patent shall be void, notwithstanding any Non Obstante to the contrary; and there is a penalty of £200 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 expressly 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 of the sheriff be law, as it hath been taken ever since Hen. 7th's time, and is cited for good law in many of our books, and never 'till now questioned; for the common cause 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 stronger 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 Obstantes to 23 Hen. 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, thus:

In the case of Goodwin 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 Serjeant's 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