a law which a man cannot obey, nor act according to it, is void

Thomas v Sorrell | [1673] EWHC KB J85 | England and Wales High Court (King's Bench Division) | Judgment | Law | CaseMine Extract: Where by the way, pardon is mis-printed for pocar done, for the King may pardon killing a man; but if the King will give power to kill a man, or to make a nusance in the high-way, it is void. And upon the same reason, a licence to imprison a man, to take his land, his horse, or any thing that is his from him, is void. For in life, liberty, and estate, every man who hath not forfeited them, hath a property and right which the law allows him to defend; and if it be violated, it gives an action to redress the wrong, and to punish the wrong-doer. For the same reason, a law making murther, stealing, perjury, trespass, or any the rest of the mala instanc'd in lawful, would be a void law in it self. For a law which a man cannot obey, nor act according to it, is void, and no law: and it is impossible to obey contradictions, or act according to them. Therefore I may conclude those things to be mala in se, which can never be made unlawful. All which are admitted by the law of the land to be prohibited, Jure Divino, and cannot be dispenc'd with; for no human authority can make lawful what divine authority hath made unlawful, without Gods leave, and then it is by his authority. Many more particulars fall under this head, which I shall not now mention. Hence I infer mala in se to be only such as imply a contradiction to be made lawful, and consequently what may be made lawful by human law to be no malum in se, as not differing from other things which may be permitted or prohibited occasionally, at the pleasure of the law-maker. The King cannot dispense with a nusance to the high-ways by 11 H. 7, and consequently, as some think, with no other publique nusance, by Sir Edward Coke. For all common nusances, as not repairing bridges, high-ways, etc the suit is the Kings, but he cannot pardon or discharge the nusance or the suit for the same, the high-ways being necessary to support such of his subjects as are occasioned to travel them: of this more hereafter. The specifical offences, which are publique nusances, I do not reckon to be mala in se, as some do, because though it be admitted none of them can be dispens'd with, yet a law may make them lawful; and if so, they are not mala in se, as before. But either a dispensation, or a law to commit nusances (in those terms) I conceive to be void, because the word nusance imports a thing, vi termini, that is unlawful as trespass doth; and therefore it is a contradiction to make it lawful by a dispensation or law. https://www.google.co.uk/amp/s/www.casemine.com/judgement/uk/5a8ff8d160d03e7f57ecdc85/amp
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