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C H A P.

XII.

OF THE DISPENSING POWER IN THE CROWN.

SIN

INCE the passing of the first of Wil

liam and Mary I will not suppose, that any one individual in the nation can look upon the dispensing power to be a legal or constitutional prerogative in the crown, or that it can on any occasion 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 usurpation of the crown, and a direct incroachment upon the liberties of the people, I shall beg leave to make some observations upon it. It appears to me as clear, that the difpensing power, as it was exercised down to the time of the revolution, was a part of the ancient royal prerogative, as it is unquestionable, that it was in its nature a power capable of the groffest abuse, and confequently highly improper and even dangerous to be trusted in the hands of the sovereign. As it is now more than a century, since by this explicit and judicious act of parliament $

the

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the dispensing power has been declared unconftitutional, an opinion upon the old legal question may be now hazarded without a fhadow of displeasure or offence. I shall do it by way of illustration of the principle, that the sovereignty of power continues for ever unalienably to reside with the people ; and to this principle I attribute the glory and prefervation of the English conftitution.

Of this question I say what lords Ellefmere and Bacon said 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 case, 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, solid, and convincing arguments I ever remeinber to have read, as far as it goes to prove the existence of the right from its ancient and continued usage 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 shews the usage and exertion of this prerogative to have been noticed and ac

knowledged

term non ob.

power was ac

ercised.

knowledged by parliament and the courts of

law for some centuries. It could only then It appears from the usage of the have existed by the sufferance, acquiescence, Jante, that the or recognition of the community; and thať, dispensing

it did so, the very usage of the term of non tually ex

obftante is a convincing proof.

I do not mean to enter into nor repeat any of Sir Edward Herbere's arguments. The difference, which is admitted by all parties, between the right of dispensing from statutes, which enjoin mala in se and mala probibita, is to my mind sufficiently convincing, that the people of this nation did heretofore acknowledge or admit of a right in their fovereign to dispense in certain cases

with the obligations of acts of parliament. The difference For as to mala in fe, it was no more in the pensing with

power of the parliament, than of the king, to mala prohibita and mala in sen permit or allow of any dispensation or suf

pension from them, as is evident; that is, no human power whatever could render malum in se, 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 legislature, can of itself have no absolute power, nor controul, nor jurisdiction over the whole legislature, for then the part would be greater,

than

between dif

absurd.

matter of the

from it.

than the whole ; but if it could of itself fuf-
pend or dispense with the obligation or co-
ercive effect of the acts of the whole legiņa-
ture, it would have such power, controul, or
jurisdiction over it. The subject matter of the subject
the legislative act is perfectly irrelevant to act irrelevant to

the power of
the power of suspending it; the power, which difpenfing
forbids the killing of a partridge before the
first day of September, is the same, and as
binding and as uncontroulable and indir,
pensable, 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 sort of authority,
that can be produced, it appears evident be-
yond question, that this right was formerly
permitted and acknowledged in the crown.

The possible abuse of this prerogative by The imprus the sovereign, is no more an argument against a prerogative,

no proof against
the subsistence of the prerogative itself, than the subsistence
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 ariny

of
anarchy and confusion 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

dent exercise of

of it.

peers, such

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part of the constitution ; but the possibility of abusing a prerogative does not certainly do

away the sovereign'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, since 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, since all party motives and reasons are now at an end, that some few observations will be candidly attended to by an unbiassed, because now a disinterested public; and I frankly profess, that I shall presume upon most of my readers thinking with me, that their ancestors, in 1688, were as commendable for insisting upon the annihilation of the right, as their progenitors had been blameable for having acquiesced in or submitted unto it so

long Acquiescence It appears, that the free acquiescence 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 prerogative itself; (for almost the whole prerogative of the crown originated from, and became established by the tacit consent of the people).

of the commu

a right to the CIOWn.

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