e rights of the crown that one
at least of the crown lawyers should be a man of learning, ability, and
experience; and no such man was willing to defend the dispensing power.
The Attorney General was therefore permitted to retain his place
during some months. Thomas Powis, an insignificant man, who had no
qualification for high employment except servility, was appointed
Solicitor.

The preliminary arrangements were now complete. There was a Solicitor
General to argue for the dispensing power, and twelve Judges to decide
in favour of it. The question was therefore speedily brought to a
hearing. Sir Edward Hales, a gentleman of Kent, had been converted
to Popery in days when it was not safe for any man of note openly to
declare himself a Papist. He had kept his secret, and, when questioned,
had affirmed that he was a Protestant with a solemnity which did little
credit to his principles. When James had ascended the throne, disguise
was no longer necessary. Sir Edward publicly apostatized, and was
rewarded with the command of a regiment of foot. He had held his
commission more than three months without taking the sacrament. He was
therefore liable to a penalty of five hundred pounds, which an informer
might recover by action of debt. A menial servant was employed to bring
a suit for this sum in the Court of King's Bench. Sir Edward did not
dispute the facts alleged against him, but pleaded that he had letters
patent authorising him to hold his commission notwithstanding the Test
Act. The plaintiff demurred, that is to say, admitted Sir Edward's plea
to be true in fact, but denied that it was a sufficient answer. Thus was
raised a simple issue of law to be decided by the court. A barrister,
who was notoriously a tool of the government, appeared for the mock
plaintiff, and made some feeble objections to the defendant's plea. The
new Solicitor General replied. The Attorney General took no part in the
proceedings. Judgment was given by the Lord Chief Justice, Sir Edward
Herbert. He announced that he had submitted the question to all the
twelve Judges, and that, in the opinion of eleven of them, the King
might lawfully dispense with penal statutes in particular cases, and
for special reasons of grave importance. The single dissentient, Baron
Street, was not removed from his place. He was a man of morals so bad
that his own relations shrank from him, and that the Prince of Orange,
at the time of the Revolution, was advised not to