Published: Wed, 07 Mar 2018
Godden v Hales (1686) 11 St Tr 1166
Catholics; constitution; religious penal laws
Sir Edward Hales was a member of the House of Commons and a close associate of King James II. He converted to catholicism in 1685. He subsequently received the command of a regiment of foot from the King, a position that would have normally required him, among other things, to receive Holy Communion in the Church of England and to take the oaths of Supremacy and Allegiance – i.e. actions that could not be done by a Catholic. Sir Hales’s servant (acting on his lord’s instruction), Mr Godden, brought legal action against him and he was convicted. Hales appealed to the Court of King’s Bench.
Sir Hales argued that he had evidence – in the form of letters from the King – that exempted him from taking the required oaths. Mr Godden claimed that such an exemption would be invalid. The Court had to decide whether the monarch possessed the power to dispense from religious penal laws on an individual basis. The case was in fact a set-up by the government to confirm the King’s dispensing power.
The Court found in favour of Hales. It made the comparison that God could dispense with divine laws, so the legislator should be able to dispense with man-made laws where appropriate (there may be situations the lawmaker did not expect or think of when it made the law, exceptions shoud be allowed). The Court summarised its findings by saying that English monarch were sovereigns and English laws were thus the monarch’s laws. Consequently, English monarchs had an inseparable prerogative to dispense with penal laws in individual cases and where this was necessary. The monarch was the sole judge of the meaning of necessity. Finally, this power to dispense with penal laws was vested in the monarch by ancient rules of sovereign power and prerogative that could not be taken away from them.
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