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part of the constitution ; but the possibility of abusing a prerogative does not certainly do away the sovereign's right to it. In all such kinds of prerogative, the discretionary and prudential power of exertion is not the least
part of the prerogative itself. Upon the whole, since this very great and enormous power or prerogative is now for the benefit and happiness of the nation rendered illegal and unconstitutional, I shall expect, since all party motives and reasons are now at an end, that some few observations will be candidly attended to by an unbiassed, because now a disinterested public; and I frankly profess, that I shall presume upon most of my readers thinking with me, that their ancestors, in 1688, were as commendable for insisting upon the annihilation of the right, as their progenitors had been blameable for having acquiesced in or submitted unto it fo
long Acquiescence It appears, that the free acquiescence of the nity to the pre- community in the actual exercise of this pre
rogative in the crown, is a convincing proof of the right of the sovereign to the prerogative itself; (for almost the whole prerogative of the crown originated from, and became established by the tacit consent of the people).
of the conimu.
rogative gives a right to the Grunn.
In the days of King Henry VIII. the parliament passed an express act, by which they actually vested in the king a 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. 3. 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 some particular mischief or hardship sometimes (though very rarely) happening to fome men, which hardship was not foreseen by the makers of the law (although this is
* Atkins's Enquiry into the Power of dispensing with Penal Statutes, p. 199. & feq.
mations by the
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 1 E. VI, c. 12, Act that procla.'
« The title of that mischievous act of king should
31 H. VIII. is this; An Axt that Proclamations made by the King's Highness, with the Advice of the Honourable Council (meant of the privy council) shall be obeyed and kept as though they were made by Aet 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 Jaw to coherce offenders to obey these pro
have the force
of acts of par
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 majestý (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 subjects; 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, his proclamations, under such penalties, and of such sort 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 great seal. .
“ 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 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 confession, 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 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.