In the days of King Henry VIII. the parliament paffed an express act, by which they actually vefted in the king a much more dangerous and extenfive prerogative or power, than the dispensing power; which, although all writers have unexceptionably condemned and reprobated, yet I never have as yet met with one, who doubted of its legal validity, whilft the act was in force. This prerogative or right of difpenfing in certain cafes with the obligations of acts of parliament, having, like moft other prerogatives, originated from the tacit affent of the community, and having been through a long feries of years recognized by acts of parliament, difcuffed and confirmed by courts of law, frequently exercised by the king, and always fubmitted to by the people, can be less effectually argued against a priori, than the act of 31 Hen. VIII. c. 8. of which Sir Robert Atkins, a very conftitutional writer, and an old whig, fpeaks in this manner: "Now from this fuppofed and imaginary defect of law, or fome particular mischief or hardship fometimes (though very rarely) happening to fome men, which hardfhip was not foreseen by the makers of the law (although this is * * Atkins's Enquiry into the Power of difpenfing with Penal Statutes, p. 199. & feq. oftener A&t that proclamations by the king fhould have the force of acts of parJiament. oftener pretended and feigned than happening in truth) occafion has been taken to affert a power in the prince or chief ruler to difpense with the law in extraordinary cafes, and to give ease or relaxation to the perfon, that was too hard bound or tied to a law; for, as I obferved before, the law is of a binding and restraining nature and quality; it hath the fame fpecious pretence as a law made 31 H. VIII. c. 8. had, which was of most desperate and dangerous confequence, had it not speedily been repealed by the statute of 1 E. VI. c. 12. "The title of that mischievous act of 31 H. VIII. is this; An Act that Proclamations made by the King's Highness, with the Advice of the Honourable Council (meant of the privy council) fhall be obeyed and kept as though they were made by Act of Parliament. "The preamble recites, the king, by advice of his council, had thentofore fet forth fundry proclamations concerning articles of religion, and for an unity and concord to be had among his fubjects, which nevertheless many froward, wilful, and obftinate perfons have wilfully contemned and broken, not confidering what a king by his royal power may do; and for lack of a direct statute and law to coherce offenders to obey these proclamations, clamations, which being still fuffered, should encourage offenders to the disobedience of the laws of God, and found too much to the great dishonour of the king's most royal majefty (who may full ill bear it). "Confidering alfo, that fudden occafions fortune many times, which do require speedy remedies, and by abiding for a parliament, in the mean time might happen great prejudice to enfue to the realm; and weighing that his majefty (which by the regal power given by God, may do many things in fuch cases) should not be driven to extend the fupremacy of his regal power, by wilfulnefs or froward fubjects; it is therefore thought neceffary, that the king's highnefs of this realm for the time being, with the advice of his council, fhould make proclamations for the good order and government of this realm of England, Wales, and other his dominions, from time to time, for the defence of his regal dignity, as the cafes of neceffity fhall require. "Therefore it is enacted, that always the king for the time being, with the advice of his council, whofe names thereafter follow, (and all the great officers of ftate are mentioned by the titles of their offices), for the time being, or the greater number of them, may set forth at all times, by authority of this act, act, his proclamations, under fuch penalties, and of fuch fort as to his highness and his council, or the more part of them shall seem requifite; and that the fame shall be obeyed, as though they were made by act of parliament, unless the king's highness dispense with them under his great feal. "Here, at one blow, is the whole legislative power put into the king's hands, and there was like to be no further use of parliaments, had this continued. "Then there follows a claufe, that would feem to qualify and moderate this excess of power; but it is altogether repugnant and contradictory in itself. "And the conviction for any offence against any proclamation is directed, not to be by a jury, but by confeffion, or lawful witnefs or proofs. "And if any offender against any such proclamation, after the offence committed, to avoid the penalty, wilfully depart the realm, he is adjudged a traitor. "And the juftices of peace are to put thefe proclamations into execution in every county. And by another act of 34 and 35 Hen. VIII. c. 23. nine of the great officers are made a quorum, &c. for they could not half the number to act under it. get "The K. Ed. VI. "The act of 1 E. VI. c. 12. (which repeals Repealed by the terrible law) begins with a mild and merciful preamble, and mentions that act of King H. VIII. which as this act of E. VI. does prudently observe, might seem to men of foreign realms, and to many of the king's fubjects, very strict, fore, extreme, and terrible; this act of King E. VI. does therefore, by express mention of that terrible act, wholly repeal it. And so that law (to use the Lord Bacon's phrafe) was honourably laid in its grave; and God grant it may never rife again. The ingenuity of man cannot invent a reafon or an argument against the propriety and policy of the dispensing power, which does not apply with redoubled force againft this act of Henry VIII. ; but no reason could prevent the operation of the statute, whilst it remained in force; and no reason could destroy the royal prerogative or power of difpenfing with the obligations of certain ftatutes by a non obftante, till the legislature declared it illegal. I admit of the force, energy, and conclufion of all the reasons and arguments against the one and against the other, not to prove their inefficacy or nonexistence, but to establish the neceffity of the repeal or annihilation of them both. I canA a not Stronger argu this act of H. VIII. than penting power. ments against against the dif |