DEBT upon the statute 25 Car. 2, cap. 2, for the penalty of £500, wherein the plaintiff declares, that whereas it was provided by the statute, &c. (setting forth the statute), notwithstanding which, the defendant having a commission to serve the king as a colonel of foot, and not having received the sacrament, nor taken the oaths and test, &c., within the times prescribed by the Act; that after the times expired, wherein he ought to have received the sacrament, and taken the oaths and tests, as aforesaid, he did execute the said office, and continued to act by color of the said commission, of which he was indicted and convicted at the assizes in Kent, whereby the action accrues to the plaintiff, for the penalty of £500. The defendant pleads, that before the times expired, &c., he had a dispensation under the broad seal to act, non obstante that statute; to which the plaintiff demurs.

Northy, pro quer', Solicitor-General, for the defendant.

At another day the Chief Justice [HERBERT] declared, that by the opinion of eleven of the judges, the case of 2 Hen. 7, of sheriffs holding above one year by dispensation, &c., is good law.

And as to the case in question, we have resolved the points following (Street only dissenting).

1. That the king is a sovereign (or absolute) prince.

2. That the laws of the land are the king's laws.

3. That to dispense with penal laws (where the subject hath no particular damage) for necessary and urgent occasions, is an inseparable prerogative of the king.

4. That the king is sole judge of such necessity [and] that no Act of Parliament could take away that power.

5. That this trust residing in him, came not from the people, but was a sovereign right of the king ab antiquo.

6. That the dispensation in this case is a good bar to the plaintiff's action, because it came within three months before any disability incurred. Judicium quod quer' nil capiat per Billam.2

1 This report is made up from both of these volumes. In Comb. 21, the case is styled Godwin v. Hales. — ED.

2 Shower's report gives Powell, with Street, as doubting. Coxe (Judic. Power, 166) remarks: "The decision in this case is celebrated in English history as intimately connected with the causes of the revolution of 1688. The abolition of the royal power of dispensing with any statute, made in the first year of William and Mary, was caused by the existence of this decision. The case is discussed at length by Macaulay, who criticises both the decision and the motives of the court with great severity. The second paragraph of the Bill of Rights in the Statute of 1 William and Mary, sess. 2, cap. 2, formally declares to be illegal what the decision declared to be legal."

By Stat. 1 Wm. & Mary, c. 6 (1688) the coronation oath binds the sovereign "to govern the people of this kingdom. . . according to the statutes in Parliament

95. MEN being, as has been said, by nature all free, equal, and independent, no one can be put out of his estate and subjected to the political power of another without his own consent, which is done by agreeing with other men, to join and unite into a community for their comfortable, safe, and peaceable living, one amongst another, in a secure enjoyment of their properties, and a greater security against any that are not of it. . . . 97. And thus every man, by consenting with others to make one body politic under one government, puts himself under an obligation to every one of that society to submit to the determination of the majority, and to be concluded by it; or else this original compact, whereby he with others incorporates into one society, would signify nothing, and be no compact if he be left free and under no other ties than he was in before in the state of nature. — LOCKE, Two Treatises on Government, book ii. c. viii. (Licensed for printing Aug. 23, 1689.)1

143. The legislative power is that which has a right to direct how the force of the commonwealth shall be employed for preserving the community and the members of it. But because those laws which are to be constantly executed, and whose force is always to continue, may be made in a little time; therefore there is no need that the legislative should be always in being, not having always business to do. And because it may be too great temptation to human frailty, apt to grasp at power, for the same persons who have the power of making laws to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making and execution, to their own private advantage, and thereby come to have a distinct interest from the rest of the community, contrary to the end of society and government. Therefore in well-ordered commonwealths, where the good of the whole is so considered as it ought, the legislative power is put into the hands of divers persons who, duly assembled, have by themselves, or jointly with others, a power to make laws, which when they have done, being separated again, they are themselves subject to the laws they have made; which is a new and near tie upon them to take care that they make them for the public good.

144. But because the laws that are at once, and in a short time made, have a constant and lasting force, and need a perpetual execution, or agreed on, and the laws and customs of the same." By the Bill of Rights, Stat. 1 Wm. & Mary, sess. 2, c. 2 (1689) "the pretended power of suspending of laws or the execution of laws, by regal authority, without consent of Parliament," and also that of "dispensing with laws or the execution of laws, by regal authority, as it hath been assumed and exercised of late," are declared illegal. By the Act of Settlement, Stat. 11 & 12 Wm. III. c. 2, s. 3 (1700), it was provided that " judges' commissions be made Quamdiu se bene gesserint, and their salaries ascertained and established; but upon the address of both Houses of Parliament it may be lawful to remove them."

For an account of the removal of judges in the seventeenth century, see 12 How. St. Tr. 257, note. ED.

1 "With the Revolution came John Locke as its interpreter." H. MORLEY'S Introduction to the Two Treatises on Government. — ED.

an attendance thereunto, therefore it is necessary there should be a power always in being which should see to the execution of the laws that are made, and remain in force. And thus the legislative and executive power come often to be separated.

145. There is another power in every commonwealth which one may call natural, because it is that which answers to the power every man naturally had before he entered into society. For though in a commonwealth the members of it are distinct persons, still, in reference to one another, and, as such, are governed by the laws of the society, yet, in reference to the rest of mankind, they make one body, which is, as every member of it before was, still in the state of nature with the rest of mankind, so that the controversies that happen between any man of the society with those that are out of it are managed by the public, and an injury done to a member of their body engages the whole in the reparation of it. So that under this consideration the whole community is one body in the state of nature in respect of all other States or persons out of its community.

146. This, therefore, contains the power of war and peace, leagues and alliances, and all the transactions with all persons and communities without the commonwealth, and may be called federative if any one pleases. So the thing be understood, I am indifferent as to the

name.

149. Though in a constituted commonwealth standing upon its own basis and acting according to its own nature—that is, acting for the preservation of the community- there can be but one supreme power, which is the legislative, to which all the rest are and must be subordinate, yet the legislative being only a fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them. . . . And thus the community may be said in this respect to be always the supreme power, but not as considered under any form of government, because this power of the people can never take place till the government be dissolved.

150. In all cases whilst the government subsists, the legislative is the supreme power. For what can give laws to another must needs be superior to him, and since the legislative is no otherwise legislative of the society but by the right it has to make laws for all the parts, and every member of the society prescribing rules to their actions, and giving power of execution where they are transgressed, the legislative must needs be the supreme, and all other powers in any members or parts of the society derived from and subordinate to it.

151. In some commonwealths where the legislative is not always in being, and the executive is vested in a single person who has also a share in the legislative, there that single person, in a very tolerable sense, may also be called supreme; not that he has in himself all the supreme power, which is that of law-making, but because he has in him the supreme execution from whom all inferior magistrates derive all

their several subordinate powers, or, at least, the greatest part of them; having also no legislative superior to him, there being no law to be made without his consent, which cannot be expected should ever subject him to the other part of the legislative, he is properly enough in this sense supreme. But yet it is to be observed that though oaths of allegiance and fealty are taken to him, it is not to him as supreme legislator, but as supreme executor of the law made by a joint power of him with others, allegiance being nothing but an obedience according to law, which, when he violates, he has no right to obedience, nor can claim it otherwise than as the public person vested with the power of the law, and so is to be considered as the image, phantom, or representative of the commonwealth, acted by the will of the society declared in its laws, and thus he has no will, no power, but that of the law. But when he quits this representation, this public will, and acts by his own private will, he degrades himself, and is but a single private person without power and without will; the members owing no obedience but to the public will of the society.

152. The executive power placed anywhere but in a person that has also a share in the legislative is visibly subordinate and accountable to it, and may be at pleasure changed and displaced; so that it is not the supreme executive power that is exempt from subordination, but the supreme executive power vested in one, who having a share in the legislative, has no distinct superior legislative to be subordinate and accountable to, farther than he himself shall join and consent, so that he is no more subordinate than he himself shall think fit, which one may certainly conclude will be but very little. Of other ministerial and subordinate powers in a commonwealth we need not speak, they being so multiplied with infinite variety in the different customs and constitutions of distinct commonwealths, that it is impossible to give a particular account of them all. Only thus much which is necessary to our present purpose we may take notice of concerning them, that they have no manner of authority, any of them, beyond what is by positive grant and commission delegated to them, and are all of them accountable to some other power in the commonwealth.

153. It is not necessary, no, nor so much as convenient, that the legislative should be always in being; but absolutely necessary that the executive power should, because there is not always need of new laws to be made, but always need of execution of the laws that are made. When the legislative hath put the execution of the laws they make into other hands, they have a power still to resume it out of those hands when they find cause, and to punish for any maladministration against the laws. The same holds also in regard of the federative, ▸ power, that and the executive being both ministerial and subordinate t the legislative, which, as has been showed, in a constituted commonwealth is the supreme. The legislative also in this case being supposed to consist of several persons (for if it be a single person it cannot but be always in being, and so will, as supreme, naturally have the supreme

executive power, together with the legislative), may assemble and exercise their legislative at the times that either their original constitution or their own adjournment appoints, or when they please, if neither of these hath appointed any time, or there be no other way prescribed to convoke them. For the supreme power being placed in them by the people, 't is always in them, and they may exercise it when they please, unless by their original constitution they are limited to certain seasons, or by an act of their supreme power they have adjourned to a certain time, and when that time comes they have a right to assemble and act again. — Ib., cc. xii., xiii.

159. Where the legislative and executive power are in distinct hands, as they are in all moderated monarchies and well-framed governments, there the good of the society requires that several things should be left to the discretion of him that has the executive power. For the legislators not being able to foresee and provide by laws for all that may be useful to the community, the executor of the laws, having the power in his hands, has by the common law of nature a right to make use of it for the good of the society, in many cases where the municipal law has given no direction, till the legislative can conveniently be assembled to provide for it; nay, many things there are which the law can by no means provide for, and those must necessarily be left to the discretion of him that has the executive power in his hands, to be ordered by him as the public good and advantage shall require; nay, it is fit that the laws themselves should in some cases give way to the executive power, or rather to this fundamental law of Nature and government, viz., that as much as may be all the members of the society are to be preserved. For since many accidents may happen wherein a strict and rigid observation of the laws may do harm, as not to pull down an innocent man's house to stop the fire when the next to it is burning; and a man may come sometimes within the reach of the law which makes no distinction of persons, by an action that may deserve reward and pardon; it is fit the ruler should have a power in many cases to mitigate the severity of the law, and pardon some offenders, since the end of government being the preservation of all as much as may be, even the guilty are to be spared where it can prove no prejudice to the innocent.

160. This power to act according to discretion for the public good, without the prescription of the law and sometimes even against it, is that which is called prerogative; for since in some governments the law-making power is not always in being and is usually too numerous, and so too slow for the despatch requisite to execution, and because, also, it is impossible to foresee and so by laws to provide for all accidents and necessities that may concern the public, or make such laws as will do no harm, if they are executed with an inflexible rigor on all occasions and upon all persons that may come in their way, therefore there is a latitulle left to the executive power to do many things of choice which the laws do not prescribe.

VOL. I.-3