case sir hans Sloane precedent of the college of physician against lord  William PAWLETTThis case be twice argue and here both argument be blend  together note to the former edition a Saturday November if a statute enact  that the lordlieutenants of the several county shall charge any person with  horse and arm in the county where his estate shall lie towards the modern  report er p maintenance of the militia the college of physician be not  exonerate from this charge by a charter exempt all the member thereof from  bear or provide arm to serve in the militia in London and Westminster trespass  for enter his house and take a silver tankard the defendant plead not guilty  the special matter give in evidence be a justification under a warrant from  the lieutenancy of Middlesex to levy eight pound by distress c for not appear  c be duly summon and for not find a horse to serve in the militia this cause  be at issue and come on to a trial before Parker chief justice now Lord  chancellor he order it to be make a case and to be refer to the opinion of the  court of king bench which be accord do the case be thus state Lord William  Pawlett and other be deputylieutenant of the county of Middlesex and as such  have power by the statute car c to call together person from time to time and  to arm and array they as by the say statute be direct and to charge he who  have a estate of five hundred pound a year in possession or six thousand pound  in good and money with horse horseman and arm and so proportionable by the  same statute power be give to the lordlieutenants and their deputy to inflict  a penalty not exceed twenty pound upon those who be charge c and who neglect  to find a horse c and to serve in person or to provide other to serve in their  place which penalty be to be levy by warrant by the distress and sale of good  c that the say deputylieutenant cause the plaintiff sir hans Sloane precedent  of the college of physician to be summon to appear in person or to find a  horse and arm for his estate at Chelsea of five hundred pound land in  possession which be within seven mile of London for another to serve in the  militia c in his place which he refuse insist on a charter of exemption grant  to the college of physician by king Charles the second date the twentysixth  day of march in the fifteen year of his reign exempt all member from bear or  provide arm to serve in the militia in London and Westminster or the suburb or  within seven mile thereof and that every designation or appointment to the  contrary shall be utter void c by which charter another be recite which be  grant to the say college by king Henry the eight and another by king James the  first exempt they from several service thereupon the plaintiff sir hans Sloane  be fine eight pound and a warrant be grant by Lord Pawlett so levy the same by  distress and sale of the plaintiff modern report good and accord the officer  to who the warrant be direct enter the house and distrain a silver tankard for  which the plaintiff bring this action of trespass and the defendant justify c  upon argue this case three point be make the first be concern the king power  to grant charter of exemption from the penalty or charge impose on the subject  by Act of parliament the second be admit the king have such a power then  whether there be sufficient word in this charter to make such a exemption the  three be whether the justification under this warrant be good banns for the  plaintiff argue first that the king have power by his charter to exempt any  subject from the penalty of this statute seem very plain because before this  statute be make the power of the militia be in the king and it be original so  at commonlaw and this statute be make to ease the crown of a labour and to put  thing in a ordinary form but not to deprive the king of that power which he  have before and as a parallel case the king may exempt any subject from the  payment of tax impose by Act of parliament as for instance be may exempt he  from payment of ten and fifteen and though it may be object that a charter of  exemption of all man in general from the penalty of the militia Act will be  total to elude the Act itself yet it will not follow from thence that a  particular charter of exemption of a corporate number of man will not be good  for the first be but mere possible and a thing which no king in his right  sense will do but the second be frequent do it be true this exemption may be  say to do a injury to other by lie a heavy charge on their land but it be more  proper a charge on the person in respect modern report er p of his land and  therefore it be a good exemption now admit that the power of the militia be  entire in the crown before the make this statute as certain it be and so  declare to be by the statute car c repeal by Geo c a it be as certain that the  king may exempt any of his subject modern report from serve in it and if so  then the statute have make no alteration of his power the old commission of  array their form be settle in parliament year Henry cotton abridgment  rushworth collection they continue in use till the end of queen Elizabeth time  when commission of lieutenancy be issue Henry pl Edward pl Vaugh Lambert a  wilkins Saxon law b on which this of the lieutenancy be find be to array all  those who be able to serve and that those who be not able to serve in person  shall contribute to those who be yet the king may exempt any of his subject  unless in case of apparent danger from this service tenant by knightservice be  the first militia of this kingdom it be a tenure institute for the defence  thereof for those tenant as my Lord coke tell we   light Inst c be always to  be arm for that service yet the king can exempt any of they from attend unless  it be where the danger be apparent as to suppress a rebellion or to repel a  invasion in which case none can be exempt so the king may exempt particular  person from be juryman unless in a writ of right it be true he can exempt a  knight from be of the jury where a peer be concern in the trial as a party and  the reason be because by such a exemption there will be a failure of justice  and the subject have a great interest in jury than he bath in the militia see  Geo c post notorious facts e now as to this statute itself it show that the  parliament do not intend by any implication to divest the king of any right or  prerogative which he have before it be make for the clause which concern this  matter be that the king may from time to time issue out commission of  lieutenancy and that the lieutenant may array person and form they into  company and conduct and employ they within such place for which they shall be  commission c as the king shall direct which last word show that the militia be  still to be under his direction and the beginning of this clause be that be  may issue out commission for the several county city and place of England and  Wales c but there be no time limit when so that he be not oblige to issue they  out every year nor for all the county for he may do it for one county and no  more and if in one county he may exempt some person there from this service  for there be no express word in this statute to divest the king of such power  and it be certain that in the most minute case of the king prerogative it can  be take away by any general word in a Act of parliament Rep hob more lev cro  car Plowd Com Vaughan   light a die a b a now the power which the lieutenant  have by this statute be only a bare authority to arm array and form person  into company c and as this power be give to modern report they by commission  from the king so he may suspend that power ad it pleases and it be certain  suspend by this charter grant to the college of physician because it exempt  they from all power in the say Act which must be from the actual service in  the militia in person and from provide another to serve in their place the one  be the primary and the other the secondary service beside this statute be make  to relieve and not to charge the subject and it be absolute necessary that a  power of exempt person shall be lodge somewhere it be daily do by the  lieutenant themselves and it be do by virtue of their commission and if they  may exempt and not the king this absurdity will follow videlicet that the  derivative power be great than the power from whence it be derive if the king  shall be include within the general word of this Act yet in this charter there  be a special non to stand before of any law or statute to the contrary and  when a Act express declare that the king grant shall be void though there be a  clause non to stand before in the patent yet the king may dispense with such a  Act if there be in the patent a clause non to stand before of that statute but  there be many instance of the king power of exemption videlicet the province  of Canterbury grant the ten c to the king modern report er p and appoint a  certain person to collect they bro exempt pl bro patent pl dyer Richard pl  Henry     hob Plowd Com a b Hardr Vaugh side Vaugh c and the convocation order  that no privilege person shall be exempt from be a collector yet one who have  a charter of exemption from the king be adjudge by virtue thereof to be exempt  the subsidy bill S car c will c will c d take notice that no letter patent of  exemption shall be take to excuse or exempt any person from the tax or from  the charge of any sum appoint to be pay by those act and that all non to stand  before in bar of any Act of parliament for the supply or the assistance of the  king be declare to be void now since the legislature think it proper to  mention such power of exemption and to prohibit the effect thereof this seem  to prove that such power will have remain in the king if they have not be  prohibit to be put in execution though it do not seem absolute necessary to  mention those power in these act because the subsidy be give to the crow for  particular use mention in the act themselves so that if such patent of  exemption have not be name in those statute the king can not have discharge  any man from the payment of those subsidy Mod a because they must be apply to  those use for which they be give as to this charter grant to the college of  physician it have be allow and acquiesce under ever since it be first grant to  this very time which be a strong presumption that it be good and the statute  Geo c which take notice that such people who be exempt from serve in the  militia shall not be include in that Act be a strong proof that some be exempt  modern report neither be any particular person damnified by this exemption but  all people alike for it impose no new charge on they but lessen the old charge  as to some particular person exempt neither be it any manner of charge on the  land for the statute require a personal appearance of the people arm to defend  the kingdom and that when they appear a computation may be make of what shall  be sufficient to furnish they to serve in the militia second the next point be  whether there be sufficient word in this charter to exempt the physician from  find horse and arm as well as from their personal service in the militia and  as to that matter it be to be observe that the charter recite the statute of  Henry the eight and James the first and that the regulation therein want some  new exemption and therefore it exempt the physician from watch and ware and  from serve on jury or bear or provide arm to serve in the militia it be  certain that no man be bind to bear arm for another he may do it voluntary or  by a agreement but not otherwise and if the word bear be sufficient to exempt  a man from the personal service the word provide must be nugatory if it do not  exempt he from be contributory to the find arm and such a construction will  make this charter of no effect three the next thing to be consider be whether  the defendant can justify under this warrant it be to distrain for a penalty  impose for not bear or find arm to serve in the militia now this be offer by  the defendant as one entire cause of justification and as such it must be good  for the whole for if one part be good and the other bad then the whole will be  nought and as to that matter one part be not good and therefore a entire  penalty as to both can never be impose cro Elizabeth   sand b for if it shall  then certain the punishment will be against law as to that part which be not  good now one of the cause for which this penalty be impose be nought videlicet  for not bear arm when by the statute no man be bind to bear arm if he find  another to serve in his place the remainder of the argument for the plaintiff  be what sergeant Pengelley say in Hilary term Pengelley divide the case into  three point saint what power the king have in the militia antecedent to the  act of car and car c dly what alteration have be make by those act dly whether  the word of exemption in the charter be sufficient note to former edition a  modern report er p on the other side it be argue by reeves first then by Wearg  and what be here report to be speak to the first and three point for the  defendant be say upon the last argument reeves as to the first point the  prerogative of the king relate to dispensation have of late year be disallow  and it be express declare by the bill of right will mary c that such  dispensation be void No power of exemption be reserve to the king by car c  Goodwin v hale which allow a dispensation of the test Act and many other case  have of late year be deny for law however if this charter be a good exemption  in point of law yet it be only so during the life of the king who grant it but  will not bind his successor note to former edition b that the power which the  king have to exempt the subject from the payment of the ten and fifteen grant  to he by Act of parliament do not come up to this case because the king have a  entire interest vest in he as to those thing so where the province of  Canterbury grant the ten to the crown and appoint one to collect they and the  convocation modern report order that no privilege person shall be exempt from  be a collector yet one who have a charter of exemption from the king be excuse  this likewise do not concern the case now in question because the convocation  have not power to make any man the king purveyor and the bill of right in the  three year of Charles the first entire condemns all those exemption it have be  admit on the other side that the king can not grant these charter of exemption  in extraordinary case and that he can exempt a knight from be a juryman where  a peer be a party in the cause by Geo c No challenge shall be take by a Peer  or Lord of parliament to any panel of juror for want of a knight be return in  such panel nor any array quash by reason of any such challenge take after that  time  See hawk p c ch S c and certain it can be pretend that this can be so  much for the good of the public as the defence of the kingdom by the militia  and there be a great difference between exemption and excuse person at  discretion it be true the king may exempt man from pontage or murage because  such exemption may be lawful make in opposition to the authority of those who  take upon themselves to build bridge c but the king can exempt they from be  contributory towards the support of old bridge because they be subject to such  contribution prior to any exemptionPlowd   W Jones d so in the principal case  the charge be vest prior to the charter of exemption and for that reason it  can be good there be likewise another reason why it can be good and that be  because it be to exempt man from that charge which the law have provide for  the public safety of the kingdom in which every man bath a benefit and  therefore it be reasonable that every man shall be contributory to it as to  the second point that the word of this charter exempt the physician from bear  or provide arm to serve in the militia which seem to be only a personal  discharge and that shall be intend by the word bear and from furnish himself  with arm by the word provide but he be not discharge from be contributory to  find arm for another to serve in the militia beside the king charter can  exempt a man from a thing which concern the whole right of the subject cro  Elizabeth a as this statute do for it be for the public safety of all man it  be true be may exempt man from any thing which concern his private right or  which be a branch of his prerogative or wherein be himself be principal  concern but it do not follow that because he may grant such exemption  therefore be may exempt where the whole community be concern modern report now  this statute do not bind any man to a personal service in the militia nor be  it a charge on the person but only in respect of his land therefore where a  man be protect in the possession and quiet enjoyment of his land he ought in  reason as well as in law to be contributory to the charge of such protection  the last objection be to the warrant videlicet that the defendant can not  justify under this warrant c but it be argue that the warrant be good to levy  the modern report er p penalty for not bear or provide arm it have be  otherwise if it have be for not serve or find one to serve in the militia  because he who serve be not to contribute to the find another to serve but by  the warrant the penalty be to be levy for not appear be duly summon as well as  for not bear or provide arm to serve so that upon the whole matter this be a  good warrant and by consequence a good justification under it banns in reply  the bill of right declare only such dispensation shall be void which plain  prove a precedent right in the crown to grant dispensation and that Act do not  take away any right the king have of grant dispensation but in such case only  where a non to stand before be necessary to be in the charter and in many case  the king may grant dispensation without a non to stand before the court upon  this first argument declare this to be a cause of great difficulty and  consequence as concern the prerogative of the king and the general right of  the subject and for that reason it ought not to be determine upon a case state  because upon such a proceed the judgement of the court will be final and not  to be avoid by the party who shall think himself aggrieve either by writ of  error or appeal the court therefore propose that both party shall consent to  make it a special verdict and that it may be argue once more before judgement  be give upon which a writ of error may be bring in parliament by either side  against the judgement and there to be final determine the chief justice  however upon this first argument be of opinion that the king by his  prerogative can not dispense with a Act of parliament which be make for the  public good of the whole nation but the question in this case be whether this  statute have divest the king of any part of his prerogative or whether it be  make to ease he of the care of array the militia and entrust the lieutenant  and other officer therewith for if it be then it do not divest he of any  authority he have before the Act now he be of opinion that this charter do not  exempt the physician from be contributory to the find man to serve in the  militia though probable it may exempt they from any personal appearance upon a  summons duly serve but admit that he may exempt they modern report from  personal duty yet it can be infer from thence that he may exempt they from be  contributory to other to perform those duty which be require by a Act of  parliament especial where the subject have a interest that such duty shall be  perform or a loss if they shall not and the better opinion seem to be that the  king can not exempt in such case that in the principal case the contribution  to be make to the find a man with arm to serve in the militia be a charge upon  the land as well as on the person of the owner and if this charter of  exemption shall be good it will increase the charge on all the land of person  not exempt which will be a very great damage to such person because the  physician who be exempt be a considerable body of man in every county for  which reason it will be very hard if the king have power to lessen the tax  impose upon one man and charge it upon another beside the king can exempt in  any case where the subject have a interest as where particular person be bind  by prescription or tenure to repair bridge the king can exempt they from  repair because all the subject have a common benefit to pass and repass over  public bridge it be adjourn for a far argument it do not appear in any of the  reporter that this case be ever move again see king v John tubbs Cowp a