CHA P. XII.

OF THE DISPENSING POWER IN THE CROWN.

Difpenfing power dangerous to be trufted in the hands of the

crown.

INCE the paffing of the first of William and Mary I will not fuppofe, that any one individual in the nation can look upon the difpenfing power to be a legal or conftitutional prerogative in the crown, or that it can on any occafion be exercised by the king independently of parliament. But as this was one of the great grievances complained of at the revolution, and was generally looked upon by the nation as an ufurpation of the crown, and a direct incroachment upon the liberties of the people, I fhall beg leave to make fome obfervations upon it. It appears to me as clear, that the dif penfing power, as it was exercised down to the time of the revolution, was a part of the ancient royal prerogative, as it is unqueftionable, that it was in its nature a power capable of the groffeft abufe, and confequently highly improper and even dangerous to be trufted in the hands of the fovereign. As it is now more than a century, since by this explicit and judicious act of parliament

the

the difpenfing power has been declared unconftitutional, an opinion upon the old legal question may be now hazarded without a fhadow of difpleasure or offence. I fhall do it by way of illuftration of the principle, that the fovereignty of power continues for ever unalienably to refide with the people; and to this principle I attribute the glory and prefervation of the English conftitution.

Of this question I fay what lords Ellef, mere and Bacon faid formerly of another, that it is not a question de bono, but de vero: I think it as true, that the right did exist, as I think it improper that it fhould have exifted. The account of the authorities in law, upon which judgment was given in Sir Edward Hale's cafe, written by Sir Edward Herbert, chief juftice of the common pleas in vindication of himfelf I cannot help commending as one of the most upright, folid, and convincing arguments I ever remember to have read, as far as it goes to prove the existence of the right from its ancient and continued ufage and practice. But like all other tories, he deduced this prerogative of the crown, like the whole regal dignity and power itself, from the wrong fource. He clearly fhews the ufage and exertion of this prerogative to have been noticed and acknowledged

It appears from the ufage of the

term non obflante, that the difpenfing

power was ac

tually exercifed.

knowledged by parliament and the courts of law for fome centuries. It could only then have exifted by the fufferance, acquiefcence, or recognition of the community; and that it did fo, the very ufage of the term of non obftante is a convincing proof.

I do not mean to enter into nor repeat any of Sir Edward Herbert's arguments. The difference, which is admitted by all parties, between the right of dispensing from ftatutes, which enjoin mala in fe and mala prohibita, is to my mind fufficiently convincing, that the people of this nation did. heretofore acknowledge or admit of a right in their fovereign to difpenfe in certain cafes with the obligations of acts of parliament. The difference For as to mala in fe, it was no more in the power of the parliament, than of the king, to permit or allow of any difpenfation or fufpenfion from them, as is evident; that is, no human power whatever could render malum in fe, licit or lawful, much lefs legal or conftitutional; and as to the malum probibitum, we are speaking of what is prohibited by the legislative authority; now it is evident, that the executive power, as a part of the legiflature, can of itself have no abfolute power, nor controul, nor jurifdiction over the whole legislature, for then the part would be greater,

between difpenfing with mala probibita and mala in fe,

abfurd.

than

than the whole; but if it could of itself fuf-
pend or difpenfe with the obligation or co-
ercive effect of the acts of the whole legifla-
ture, it would have fuch power, controul, or
jurisdiction over it. The fubject matter of
the legislative act is perfectly irrelevant to
the power of fufpending it; the power, which
forbids the killing of a partridge before the
first day of September, is the fame, and as
binding and as uncontroulable and indif
penfable, as that, which condemns the traitor
to be hanged, drawn, and quartered: no-
thing but the consent of the community could
vest a right in the king to dispense with either
of them; and from every fort of authority,'
that can be produced, it appears evident be-
yond queftion, that this right was formerly
permitted and acknowledged in the crown.
The poffible abuse of this prerogative by
the fovereign, is no more an argument against
the fubfiftence of the prerogative itself, than
against other undoubted rights and prero-
gatives still vested in the crown. If the king
were to pardon every criminal, that is con-
demned, or create an army of
peers, fuch
anarchy and confufion would follow the im-
prudent exertion of his prerogative, that the
preservation of the state would require an
immediate check, or an alteration in this

part

!

Acquicfcence

of the commu

a right to the crown.

part of the conftitution; but the poffibility of abufing a prerogative does not certainly do away the fovereign's right to it. In all fuch kinds of prerogative, the discretionary and prudential power of exertion is not the leaft part of the prerogative itself.

Upon the whole, fince this very great and enormous power or prerogative is now for the benefit and happiness of the nation rendered illegal and unconstitutional, I shall expect, fince all party motives and reasons are now at an end, that fome few obfervations will be candidly attended to by an unbiaffed, because now a difinterested public; and I frankly profefs, that I fhall prefume upon most of

my readers thinking with me, that their ancestors, in 1688, were as commendable for infifting upon the annihilation of the right, as their progenitors had been blameable for having acquiefced in or fubmitted unto it fo long.

It appears, that the free acquiefcence of the nity to the pre- community in the actual exercise of this prerogative gives rogative in the crown, is a convincing proof of the right of the fovereign to the preroga tive itfelf; (for almoft the whole preroga tive of the crown originated from, and became established by the tacit confent of the people).