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CHAP. XII.

OF THE DISPENSING POWER IN THE CROWN.

Difpenfing power dangerous to be trufted in the hands of the grown.

INCE the paffing of the firft of Wil

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liam and Mary I will not suppose, 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 shall 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 abuse, and confequently highly improper and even dangerous to be trusted in the hands of the fovereign. As it is now more than a century, fince by this explicit and judicious act of parliament

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the difpenfing power has been declared unconftitutional, an opinion upon the old legal queftion may be now hazarded without a fhadow of displeasure 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 preservation of the English constitution.

Of this question I fay what lords Ellefmere 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 should have existed. The account of the authorities in law, upon which judgment was given in Sir Edward Hale's cafè, written by Sir Edward Herbert, chief justice of the common pleas in vindication of himself 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

term non ob

knowledged by parliament and the courts of

law for fome centuries. It could only then the ufage of the 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.

fante, that the difpenfing

power was actually exercised.

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 difpenfing 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 dispense 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 less legal or constitutional; and as to the malum prohibitum, 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 itfelf fuf-
pend or difpenfe with the obligation or co-
ercive effect of the acts of the whole legisla-
ture, it would have fuch power, controul, or
jurifdiction 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
veft 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 question, 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 subsistence of the prerogative itself, than
against other undoubted rights and prero-
gatives ftill vefted 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 prérogative, that the
prefervation of the state would require an
immediate check, or an alteration in this

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part

Acquiefcence

of the commu

rogative gives

a right to the crown.

part
of the constitution; 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
least 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 reafons are now at an end, that fome few observations 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 in the crown, is a convincing proof of the right of the fovereign to the prerogative itfelf; (for almoft the whole prerogative of the crown originated from, and became established by the tacit confent of the people).

In

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