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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
    1. Godden v Hales (1686) 11 St Tr 1165
    2. The Bill of Rights 1689
    3. Attorney-General v De Keyser's Royal Hotel [1920] All ER 80; [1920] AC 508
    4. Laker Airways Ltd v Department of Trade [1977] 2 All ER 182; [1977] QB 643.
    5. R v Secretary of State for the Home Department, ex parte Fire Brigades Union and Others [1995] 2 AC 513; [1995] 2 WLR 464.
    6. R v Allen (1862) 121 ER 929
    7. China Navigation Company Ltd v Attorney-General [1932] 2 KB 197
    8. R v Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 All ER 770; [1967] 2 QB 864
    9. Hanratty and Another v Lord Butler of Saffron Walden (1971) SJ 382
    10. Gouriet v Union of Post Office Workers and others [1977] 3 All ER 70; [1978] AC 435.
    11. Council of Civil Service Unions and others v Minister for the Civil Service [1984] 3 All ER 935; [1985] AC 374.
    12. R v Foreign Secretary, ex parte Everett [1989] 2 WLR 224
    13. R v Secretary of State for the Home Department, ex parte Bentley [1993] 4 All 442
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Godden v Hales (1686) 11 St Tr 1165

This is 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 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 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 conveniences which did endure the law to be made; for it is impossible for the wisest lawmaker to foresee all the cases that 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 the act. 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 that 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 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 stranger case than this, and comes up to it in every particular, for that statute does 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 pounds 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 not 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 has been taken ever since Henry VII's time, and is cited for good law in many of our books, and never till now questioned, for the common course 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 stranger 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 obstante's to 23 Henry 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.....

In the case of Godden v 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 Serjeants' 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 clearly declare, that there was no imaginable difference between that case and this; unless it were, that this were the much clearer case of the two, and liable to the fewer exceptions.

My brother Powell said he was inclined to be of the same opinion, but he would rather have some more time to consider of it; but he has since sent by my brother Holloway to let us know that he does concur with us. To these eleven judges there is one dissenter, brother Street, who yet continues his opinion that the king cannot dispense in this case; but that's the opinion of one single judge against the opinion of eleven.

We were satisfied in our judgments before and, having the concurrence of eleven out of twelve, we think we may very well declare the opinion of the court to be that the king may dispense in this case; and the judges go upon these grounds:

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 those reasons and those necessities, the king himself is sole judge; and then, which is consequent upon all;

5. that this is not a trust invested in, or granted to, the king by the people, but the ancient remains of the sovereign power and prerogative of the kings of England; which never yet was taken from them, nor can be.

And therefore, such a dispensation appearing upon record to come [in] time enough to save him from the forfeiture, judgment ought to be given for the defendant.