whereof he alone is the judge. So also the statutes which restrain the king from granting pardons in case of murder have been held void; and doubtless the constant practice has been to disregard them.[94] This high and dangerous prerogative, nevertheless, was subject to several limitations, which none but the grosser flatterers of monarchy could deny. It was agreed among lawyers that the king could not dispense with the common law, nor with any statute prohibiting that which was _malum in se_, nor with any right or interest of a private person, or corporation.[95] The rules, however, were still rather complicated, the boundaries indefinite, and therefore varying according to the political character of the judges. For many years dispensations had been confined to taking away such incapacity as either the statutes of a college, or some law of little consequence, perhaps almost obsolete, might happen to have created. But when a collusive action was brought against Sir Edward Hales, a Roman catholic, in the name of his servant, to recover the penalty of £500 imposed by the test act, for accepting the commission of colonel of a regiment, without the previous qualification of receiving the sacrament in the church of England, the whole importance of the alleged prerogative became visible, and the fate of the established constitution seemed to hang upon the decision. The plaintiff's advocate, Northey, was known to have received his fee from the other side, and was thence suspected, perhaps unfairly, of betraying his own cause;[96] but the chief justice Herbert showed that no arguments against this prerogative would have swayed his determination. Not content with treating the question as one of no difficulty, he grounded his decision in favour of the defendant upon principles that would extend far beyond the immediate case. He laid it down that the kings of England were sovereign princes, that the laws of England were the king's laws; that it was consequently an inseparable prerogative of the Crown to dispense with penal laws in particular cases, for reasons of which it was the sole judge. This he called the ancient remains of the sovereign power and prerogative of the kings of England, which never yet was taken from them, nor could be. There was no law, he said, that might not be dispensed with by the supreme lawgiver (meaning evidently the king, since the proposition would otherwise be impertinent); though he made a sort of distinction as to those which affected the subject's private right. But the general maxims of slavish churchmen and lawyers were asserted so broadly that a future judge would find little difficulty in making use of this precedent to justify any stretch of arbitrary power.[97]