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 see him. The
character of Street makes it impossible to believe that he would
have been more scrupulous than his brethren. The character of
James makes it impossible to believe that a refractory Baron of
the Exchequer would have been permitted to retain his post. There
can be no reasonable doubt that the dissenting Judge was, like
the plaintiff and the plaintiff's counsel, acting collusively. It