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of parliament. And now, by the noble improvements of that law, in the statute of i Geo. III. c. 23. enacted at the earnest recommendation of the king himself from the throne, the judges are continued in their offices during their good behaviour, notwithstanding any demise of the crown (which was formerly held immediately to vacate their seats) and their full salaries are absolutely secured to them during the continuance of their commission; his majesty having been pleased to declare, that he looked upon the independence and uprightness of the judges, as essential to the impartial administration of justice, as one of the best securities of the rights and liberties of his subjects, and as most conducive to the honour of the crown.”
CHA P. XII.
OF THE DISPENSING POWER IN THE CROWN.
INCE the pasling 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 consequently 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 +
Dispensing power dangerous to be trusted in the hands of the erown.
the dispensing power has been declared unconstitutional, an opinion upon the old legal question may be now hazarded without a shadow of displeasure or offence. I shall do it by way of illustration of the principle, that the fovereignty of power continues for ever unalienably to reside with the people ; and to this principle I attribute the glory and prea servation of the English constitution.
Of this question I say what lords Ellermere 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 remember 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 source. He clearly shews the usage and exertion of this prerogative to have been noticed and ac
term non ob
power was ac
knowledged by parliament and the courts of
law for some centuries. It could only then It appears from the ulage of the have existed by the sufferance, acquiefcence, Ainte, that the or recognition of the community; and that 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 Herbert's arguments. The difference, which is admitted by all parties, between the right of dispensing from statutes, which enjoin mala in se 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 sovereign to disperse in certain cases
with the obligations of acts of parliament, The difference for as tó mela in se, it was no more in the penfing with
power of the parliament, than of the king, to mali probibita and mils inje, permit or allow of any dispensation or fuf
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 the whole ; but if it could of itself sura pend or dispense with the obligation or coercive effect of the acts of the whole legisature, 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 indifpensable, as that, which condemns the traitor to be hanged, drawn, and quartered: nothing 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 beyond question, that this right was formerly permitted and acknowledged in the crown.
The possible abuse of this prerogative by The impro the sovereign, is no more an argument against A prerogative,
no proof against the subsistence of the prerogative itself, than the fubfiftence against other undoubted rights and prerogatives still vested in the crown. If the king were to pardon every criminal, that is condemned, or create an arıny
of anarchy and confusion would follow the imprudent exertion of his prerogative, that the preservation of the state would require an immediate check, or an alteration in this
dent exercise of