A man cannot see by another's eye, nor hear by another's ear, no more can a man conclude or infer the thing to be resolved by another's understanding or reasoning; and though the verdict be right the jury give, yet they being not assured it is so from their own understanding, are forsworn, at least in foro conscientiæ.

(9) It is absurd a jury should be fined by the judge for going against their evidence, when he who fineth knows not what it is, as where a jury find without evidence, in court of either side, so if the jury find, upon their own knowledge, as the course is if the defendant plead solvit ad diem, to a bond proved, and offers no proof. The jury is directed to find for the plaintiff, unless they know payment was made of their own knowledge, according to the plea.

(After reviewing in detail the cases and objections "out of the ancient and modern books.")

The Chief Justice delivered the opinion of the court, and accordingly the prisoners were discharged.

(Vaughan, Reports, 135 et seq. S.T. vi. 999-1260.)

III

THOMAS v. SORRELL

25 Charles II., 1674.

[This was a case which involved the dispensing power of the Crown. By statute (12 Charles II. c. 25 and 7 Edward VI. c. 5) to sell wine on retail without a licence was forbidden. James VI. had granted the Vintners' Company, of whom Sorrell was one, a patent with power to sell wine non obstante the statutes. Was the Dispensation conveyed in the letters patent valid? Lord Chief Justice Vaughan's judgment, which decided that it was, is remarkable for its learning and its ingenious and subtle reasoning, but "perhaps it was impossible to state the law in a clear and satisfactory form" (Anson). As with Godden v. Hales (p. 245), the matter has only a historic interest as showing the view taken by the courts in the seventeenth century, for after the Bill of Rights "the doctrine of non obstante ... abdicated Westminster Hall when King James abdicated the Kingdom." See Vaughan's Reports, 330 et seq.; Anson, L.C. i. 300, ii. 31; Hallam, C.H. iii. 60.]

I observed not that any steady rule hath been drawn from the cases cited to guide a man's judgment, where the king may or may not dispense in penal laws, excepting that old rule taken from the case of 11 H. 7. "That with malum prohibitum by stat. the king may dispense, but not with malum per se." But I think that rule

hath more confounded men's judgments on that subject, than rectified hem. Yet I conceive that case, and the instances given in it, rightly understood, to be the best key afforded by our books to open this dark learning (as it seems to me) of Dispensations. . . . I agree that with malum prohibitum by stat. indefinitely understood, the king may dispense. But I deny that the king can dispense with every malum prohibitum by statute, though prohibited by statute only. . . . So it is generally true that malum per se cannot be dispensed with; but thence to infer (as many do) that every malum which the king cannot dispense with is malum per se is not true. . . . When the suit is only the king's, but for the benefit and safety of a third person .. the king cannot release, discharge or dispense with the suit, but by consent and agreement with of the party concerned . . . and by the same reason other penal laws, the breach of which are to men's particular damage, cannot be dispensed with. And the reason why the king cannot dispense in such cases is, not only as nuisances are contra bonum publicum, but because if a Dispensation might make it lawful to do a nuisance . . . the person damaged would be deprived of his action. . . . No non obstante can dispense in these cases, and many the like, for that were to grant that a man should not have lawful actions brought against him . . . which the king cannot grant. . . . As to the second question; admitting King James might have dispensed with particular persons for selling wine by retail . . . whether he could dispense with a Corporation? . . . First, that the nature of the offence is such as may be dispensed with, seems clear in reason of law, and by constant practice of licensing particular persons. 2. Where the king can dispense with particular persons, he is not confined to number or place, but may license as many, and in such places, as he thinks fit. I must say, as my Brother Atkins observed before, that in this case the Plaintiff's council argue against the king's Prerogative, for the extent of his Prerogative is the extent of his power, and the extent of his power is to do what he hath will to do, according to that, ut summæ potestatis Regis est posse quantum velit sic magnitudinis est velle quantum potest; if therefore the king have a will to dispense with a Corporation, as it seems King James had in this case, when the patent was granted, but by law cannot, his power, and consequently his Prerogative, is less than if he could. Malum Prohibitum is that which is prohibited per le statute: Per le Statute is not intended only an act of Parliament, but any obliging law of constitution, as appears by the case.

(From Chief Justice Vaughan's Judgment, Vaughan's Reports, 331-359.)

IV

SHIRLEY v. FAGG

27 Charles II., 1675.

[Six years after the violent quarrel between the two Houses of Parliament in the case of Skinner v. The East India Company, a second equally violent quarrel broke out, and, as with the previous case, the cause had its origin in a disputed claim of jurisdiction. Sir John Fagg, a member of the House of Commons, had obtained a verdict against Dr. Thomas Shirley in the Court of Chancery. Shirley, by a petition, brought the case on appeal before the House of Lords, who ordered Fagg to appear and answer at their bar. The House of Commons promptly espoused Fagg's cause, contending (1) that members of their House were exempted by privilege from legal process during the session of Parliament; (2) that the Lords had no appellate jurisdiction in Equity cases. The Lords replied with a contention (1) that an appeal to their House lay from all inferior courts: (2) that the claim of privilege could not bar their right to do justice. As both Houses were determined to maintain what they conceived were their privileges, the quarrel resolved itself into a sharp struggle between the two branches of the legislature to assert by arrest and counter-arrest the interpretations of their respective privileges, in which the important issue as to whether the Lords had an appellate jurisdiction in Equity cases was almost ignored. The main phases of the quarrel, illustrating the summary methods adopted to enforce the views of each House, have a historic interest, and can be followed in the excerpts given from the Journals. A series of fruitless conferences, even when aided by the efforts of the King to restore harmony, ended in a complete dead-lock. Nor did a prorogation from June 9 to October 13 lull the quarrel, for both Houses promptly renewed their conflicting claims when Parliament reassembled. The dispute only received its quietus with the prolonged prorogation from November 22, 1675, to February of 1677. As the House of Lords in Skinner v. The East India Company refused to admit that it was beaten, so now the Commons declined formally to abandon their claims. As a fact, however, the Lords had won. Dr. Shirley did not pursue his petition, but the Lords henceforward exercised without protest an appellate jurisdiction in Equity cases. See Hallam, C.H. iii. 25 et seq.; S.T. vi. 1122-1189; Hatsell, Precedents; Hargrave, H.J.L.; Pike, H.L. 279-307; Rogers, P.L. i. 49, 52-54.]

Resolved, That a message be sent to the Lords, to acquaint them, that this House hath received information, That there is a Petition of appeal depending before them, at the suit of Thomas Shirley, Esq. against Sir John Fagg, a member of this House; to which petition,

he is, by order of the House of Lords, directed to answer on Friday next; and to desire the Lords to have a regard to the privileges of this House.

(Commons Journal, May 5, 1675.)

The House (of Lords) agreed with the Committee in this Declaration and ordered the same to be entered into the Journal-book of this House as their Declaration, viz.

That it is the undoubted right of the Lords in judicature, to receive and determine in time of parliament, appeals from inferior courts, though a member of either House be concerned, that there may be no failure of justice in the land.

(Lords Journals, May 6, 1675.)

THE SPEAKER'S WARRANT FOR THE

ARREST OF SHIRLEY

By virtue of an order, made the 12th day of May, 1675, by the Honourable the House of Commons assembled in Parliament, these are to require and authorise you forthwith to apprehend Dr. Thomas Shirley, and bring before the House, to answer his breach of privilege, in prosecuting a suit, by petition of appeal, in the House of Lords, against Sir John Fagg a member of this House and for so doing this shall be your warrant. Given under my hand on Friday the 14th day of May in the 27th year of the reign of our Sovereign Lord King Charles the Second, etc. EDWARD SEYMOUR, Speaker. Annoque Domini, 1675.

:

To Sir James Northfolk Knight, one of his majesty's serjeantsat-arms in ordinary now attending the hon. House of Commons, his deputy or deputies.

Resolved, That the appeal brought by Dr. Shirley in the House of Lords, against Sir John Fagg, a member of this House, and the proceedings thereupon, are a breach of the undoubted right and privileges of this House.

(Commons Journals, May 14, 1675.)

Whereas Thomas Shirley Esq., his majesty's physician in ordinary, hath a cause depending in this House, by way of appeal against Sir John Fagg, a member of the House of Commons, and, by law and course of parliament, ought to have privilege and freedom from

arrest:

It is ordered, by the Lords spiritual and temporal, in parliament assembled, "That the said Thomas Shirley be, and he is hereby, privileged and protected accordingly, by the authority of this House, during the depending of his said cause in this House; and all persons whatsoever are hereby prohibited from arresting or otherwise molesting the said T. Shirley upon any pretence whatsoever, as they and every of them will answer the contrary to this House."

(Lords Journals, May 14, 1675.)

The House . . . after a serious debate, made this declaration following:

The Lords do order and declare, That it is the undoubted right of the Lords, in judicature, to receive and determine, in time of parliament, appeals from inferior courts, though a member of either House be concerned therein, that there may be no failure of justice in the land; and from this right and the exercise thereof, the Lords will not depart.

(Lords Journals, May 17, 1675.)

The matter of the Lords' answer being debated, Resolved "That it is the undoubted right of this House, that none of their members be summoned to attend the House of Lords during the sitting or privilege of parliament."

(Commons Journals, May 18, 1675.)

Sir Thomas Lee reports, from the Committee appointed to draw up Reasons to be offered at the Conference to be had with the Lords upon the Privileges of this House, contained in the Lords' Answer to the last Message of this House, in the case of Mr. Onslow; which Reasons were twice read, and with some alterations at the clerk's table (upon the question severally put) agreed to: which are as follow, viz.

1. "That by the laws and usage of parliament, privilege of parliament belongs to every member of the House of Commons, in all cases, except treason, felony, and breach of the peace; which hath often been declared in parliament, without any exception of appeals before the Lords.

2. "That the reason of that privilege is, that the members of the House of Commons may freely attend the public affairs of that House, without disturbance or interruption; which doth extend as well to appeals before the House of Peers, as to proceedings in other courts. 3. "That by the constant course and usage of parliament, no member of the House of Commons can attend the House of Lords