The arguments

prerogative.

not help obferving, that all the authorities for the difpenfing prerogative are exprefs, open, and unambiguous; and that all the arguments (for express authorities I find none,) against it are a priori, or ab incongruo.

So violently were the two oppofite opinions upon this point formerly agitated, that neither argument nor authority seemed to make the smallest impreffion upon the adverin favour of this fary. Those, who maintained the prerogative argued, that statutes, which provide for particular cafes, notwithstanding any patent made to the contrary, with claufe of non obftante, or notwithstanding any clause of non obftante to the contrary &c.* evidently presuppose the existence, validity, and legality of fuch non obftante difpenfations. They quoted cafes in point from the year books, and the explanations and applications of them, by the greatest lawyers of all subsequent times, who are unequivocally clear and decifive in their opinions upon the legality of fuch difAuthorities of penfations. Thus lord chief justice Herbert for this purpose firft quotes Fitzherbert,

the greatest

lawyers in favour of this

prerogative.

*« who lived near this time, and could not easily be mistaken in the sense of the year

*Such Acts were, 4 Hen. IV. c. 31. Hen. VI. C. 23, &c.

+ Herbert, ubi fupra, p. 12, 13, 20.

books.

books. Next to him fhall be Plowden, who, as all lawyers will confefs, is as little likely to be mistaken in the sense of the year books, as any reporter we have. Next is my lord Coke." And when he quotes the words of my lord Vaughan, he says, "Whom I cite the oftner, because every body remembers him, and it is very well known he was never guilty of straining the king's prerogative too high." I wish not to charge and clog my readers attention with a dry tedious difcuffion of a point of obfolete law; but shall refer their final judgment and determination, whether a difpenfing prerogative or power did or did not exift in the crown before the revolution, to the following parliamentary declarations, made upon very different occafions, at the distance of above two hundred years from each other.

act Hen. V.

In the year 1413, 1 Henry V. *The Proved from commons pray, that the ftatutes for voiding of aliens out of the kingdom may be kept and executed; to which the king agreeth, faving his prerogative, that he may difpenfe with whom he pleases; and upon this the commons answered, that their intent was no other, nor never fhall be by the grace of God."

In the year 1628, 3 Car. I. in a debate between the two houfes of parliament upon the petition of right, Serjeant Glanville was deputed in a committee of both houses of parliament in the painted chamber, to deliver the fenfe of the house of commons, in which speech, he fays, "I moft humbly befeech your lordships to weigh the reasons, which I shall present, not as the sense of myfelf, the weakest member of our house, but as the genuine and true fenfe of the whole houfe of commons, conceived in a business debated there with the greatest gravity and folemnity, with the greatest concurrence of opinions and unanimity, that ever was in any bufinefs maturely agitated in that house." And then coming to speak of the point in queftion, he delivered the fenfe of the commons in these words: "There is a truft infeparably repofed in the perfons of the kings mons to Ch.1. of England, but that truft is regulated by. law; for example, when ftatutes are made to prohibit things not mala in fe, but only mala quia prohibita, under certain forfeitures and penalties to accrue to the king, and to the informers, that fhall fue for the breach of them; the commons muft, and ever will ac

This prerogative acknow

ledged by the houfe of com

knowledge a regal and fovereign prerogative in the king touching fuch statutes; that it is in his majesty's abfolute and undoubted power to grant difpenfations to particular perfons, with the claufes of non obftante, to do as they might have done before those statutes, wherein his majesty conferring grace and favour upon fome, doth no wrong to others." As it was the prevailing fashion at the time of the revolution, not to allow that the difpenfing power ever had been a prerogative of the crown, therefore have I before faid, in compliance with that fashion, and in conformity with the ftile of the bill of rights, that the only alterations introduced into the constitution at that time, were in the fucceffion and tenure of the crown. But I muft now beg leave to observe, that I reckon this abridgment of the prerogative royal, as a third alteration. Tho' as to the main effect, it is perfectly immaterial, fince the power can now be no more exercised by the king, whether he be prevented from it by the abridgment or deprivation of an old prerogative, or by a declaration, that he never was legally entitled unto it.

I have faid thus much of the existence and extinction of the difpenfing power, to convince my readers, that fuch is the vigilance

The effects of royal influence.

of every branch of the legislature upon each other, that we may reft fecure in their political equipoise, that none of them will outgrow or abforb the other. If in the variety and change of political occurrences it fhall be found requifite either to abridge or enlarge the prerogative of the fovereign, it behoves us to confide in the readiness and zeal of our deputies and trustees to effect it. Let no body look upon our present sovereign, as lefs qualified and enabled to fulfil the executive functions of government, than his ancestors, whofe prerogatives were in some points more extenfive and numerous than his. What has been pruned off from the precarious branches of prerogative has been engrafted upon the double bearing stock of royal influence.

*From the revolution in 1688 to the present time; in this period many laws have paffed; as the bill of rights, the tolerationact, the act of fettlement with its conditions, the act for uniting England with Scotland, and fome others; which have afferted our liberties in more clear and emphatical terms; have regulated the fucceffion of the crown by parliment, as the exigences of religious and civil freedom required; have confirmed, and ex

Blak. Com. b. iv. c. 33. fub. fin;

emplified