of parliament. And now, by the noble improvements of that law, in the ftatute 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 demife of the crown (which was formerly held immediately to vacate their feats) and their full falaries are abfolutely fecured to them during the continuance of their commiffion; his majefty having been pleased to declare, that he looked upon the independence and uprightnefs of the judges, as effential to the impartial administration of juftice, as one of the best fecurities of the rights and liberties of his fubjects, and as moft conducive to the honour of the crown."

CHAP. XII.

OF THE DISPENSING POWER IN THE CROWN.

Difpenfing power dangerous to be trufted in the hands of the

crown.

SINCE

INCE the paffing of the first of William and Mary I will not fuppofe, that any one individual in the nation can look upon the difpenfing power to be a legal or conftitutional prerogative in the crown, or that it can on any occafion 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 fhall beg leave to make fome obfervations upon it. It appears to me as clear, that the dif penfing power, as it was exercifed down to the time of the revolution, was a part of the ancient royal prerogative, as it is unqueftionable, that it was in its nature a power capable of the groffeft abufe, and confequently highly improper and even dangerous to be trufted in the hands of the fovereign. As it is now more than a century, fince by this explicit and judicious act of parliament,

the dispensing power has been declared unconstitutional, 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 illuftration of the principle, that the fovereignty of power continues for ever unalienably to refide with the people; and to this principle I attribute the glory and prefervation of the English conftitution.

Of this question I fay what lords Ellefmere and Bacon faid 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 fhould have exifted. The account of the authorities in law, upon which judgment was given in Sir Edward Hale's cafe, written by Sir Edward Herbert, chief juftice of the common pleas in vindication of himfelf I cannot help commending as one of the most upright, folid, 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 ufage 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 fhews the ufage and exertion of this prerogative to have been noticed and acknowledged

It appears from

term non ob

knowledged by parliament and the courts of

law for fome centuries. It could only then the ufage of the have exifted by the fufferance, acquiefcence, or recognition of the community; and that it did fo, the very ufage of the term of non obftante is a convincing proof.

fante, that the difpenfing

power was actually exercifed.

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 fe 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 fovereign to disperse in certain cases with the obligations of acts of parliament. The difference For as to mala in fe, it was no more in the power of the parliament, than of the king, to permit or allow of any difpenfation or fufpenfion from them, as is evident; that is, no human power whatever could render malum in fe, licit or lawful, much lefs legal or conftitutional; and as to the malum probibitum, we are speaking of what is prohibited by the legislative authority; now it is evident, that the executive power, as a part of the legiflature, can of itself have no abfolute power, nor controul, nor jurisdiction over the whole legiflature, for then the part would be greater,

between difpenfing with mala probibita and malu in fe, abfurd.

than

than the whole; but if it could of itself sufpend or dispense with the obligation or coercive effect of the acts of the whole legilature, it would have fuch power, controul, or jurisdiction over it. The fubject matter of the legislative act is perfectly irrelevant to the power of fufpending it; the power, which forbids the killing of a partridge before the first day of September, is the fame, and as binding and as uncontroulable and indifpenfable, as that, which condemns the traitor to be hanged, drawn, and quartered: nothing but the confent of the community could veft a right in the king to dispense with either of them; and from every fort of authority, that can be produced, it appears evident beyond question, that this right was formerly permitted and acknowledged in the crown. The poffible abufe of this prerogative by the fovereign, is no more an argument against the fubfiftence of the prerogative itfelf, than against other undoubted rights and prerogatives ftill vested in the crown. If the king were to pardon every criminal, that is condemned, or create an army of peers, fuch anarchy and confufion would follow the imprudent exertion of his prerogative, that the prefervation of the state would require an immediate check, or an alteration in this

part