Page images

In the days of King Henry VIII. the parliament passed an express act, by which they actually vested in the king à much more dangerous and extensive 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, whilst the act was in force. This prerogative or right of dispensing in certain cases with the obligations of acts of parliament, having, like most other prerogatives, originated from the tacit affent of the community, and having been through a long series The dispensing of years recognized by acts of parliament, nized by pardiscussed and confirmed by courts of law, frequently exercised by the king, and always submitted to by the people, can be less effectually argued against a priori, than the act of 31

Hen. VIII. c. S. of which Sir Robert Atkins, a very constitutional writer, and an old whig, speaks in this manner :

* Now from this supposed and imaginary defect of law, or fome particular mischief or hardship sometimes (though very rarely) happening to some men, which hardship was not foreseen by the makers of the law (although this is

power recog


* Atkins's Enquiry into the Power of dispensing with Penal Statutes, p. 199. & feq.


oftener pretended and feigned than happening in truth) occasion has been taken to assert a power in the prince or chief ruler to difpense with the law in extraordinary cases, and to give ease or relaxation to the person, that was too hard bound or tied to a law; for, as I observed before, the law is of a binding and restraining nature and quality; it hath the same specious pretence as a law made 31 H. VIII. c. 8. had, which was of most desperate and dangerous consequence, had it not speedily been repealed by the sta

tute of E. VI. C. 12. Act that procla

« The title of that mischievous act of king should 31 H. VIII. is this; An Aet that Proclamahave the force tions made by the King's Highness, with the Ad

vice of the Honourable Council (meant of the privy council) shall be obeyed and kept as though they were made by Aft of Parliament.

“ The preamble recites, the king, by advice of his council, had thentofore set forth sundry proclamations concerning articles of religion, and for an unity and concord to be had among his subjects, which nevertheless many froward, wilful, and obstinate persons have wilfully contemned and broken, not considering what a king by his royal power may do; and for lack of a direct statute and law to coherce offenders to obey these pro


mations by the

of Jiament.

[ocr errors]

clamations, which being still suffered, 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 majesty (who may full ill bear it).

“ Considering also, that sudden occasions fortune many times, which do require speedy remedies, and by abiding for a parliament, in the mean time might happen great prejudice to ensue to the realm ; and weighing that his majesty (which by the regal power given by God, may do many things in such cases) should not be driven to extend the supremacy of his regal power, by wilfulness or froward fubjects; it is therefore thought necessary, that the king's highness of this realm for the time being, with the advice of his council, should 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 cases of necessity shall require.

«. Therefore it is enacted, that always the king for the time being, with the advice of his council, whose names thereafter follow, (and all the great officers of state 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 such penalties, and of such fort as to his highness and his council, or the more part of them shall seem requisite; and that the same shall be obeyed, as though they were made by act of parliament, unless the king's highness dispense with them under his


seal. Here, at one blow, is the whole legiNative 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 clause, that would seem 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 witness 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 justices of peace are to put these 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 get

half the number to act under it.

« 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 subjects, 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 phrase) was honourably laid in its grave; and God grant it may never rise again.

The ingenuity of man cannot invent à Stronger argureason or an argument against the propriety this act of H. and policy of the dispensing power, which wahine than does not apply with redoubled force against penting powers 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 difpensing with the obligations of certain statutes by a non obstante, till the legislature leclared it illegal. I admit of the force, energy, and conclusion of all the reasons and arguments against the one and againft the other, not to prove their inefficacy or nonexistence, but to establish the necessity of the repeal or annihilation of them both. I can

against the dif




« PreviousContinue »