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K. ED. VI.
« The act of 1 E. VI. c. 12. (which repeals Repealed hy the terrible law) begins with a mild and merciful preamble, and mentions that act of King H. VIII.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, sore, extreme, and terri. ble; 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 a Stronger argue reason or an argument against the propriety this a&t of H. and policy of the dispensing power, which
against the disc does not apply with redoubled force against penting power, this act of Henry VIII. ; but no reason could prevent the operation of the statute, whilft it remained in force ; and no reason could destroy the royal prerogative or power of dispensing 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 against the other, not to prove their inefficacy or nonexistence, but to establish the necessity of the repeal or annihilation of them both. I can
not help observing, that all the authorities for the dispensing prerogative are express, 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 opposite opinions upon this point formerly agitated, that neither argument nor authority seemed to
make the smallest impression upon the adverin favour of this fary. Those, who maintained the prerogative prerogative.
argued, that statutes, which provide for particular cases, notwithítanding any patent made to the contrary, with clause of non obstante, or notwithstanding any clause of non obstante to the contrary &c.* evidently presuppose the existence, validity, and legality of fuch non obstante dispensations. 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 decisive in
their opinions upon the legality of such disAuthorities of pensations. Thus lord chief justice Herbert
for this purpose first quotes Fitzherbert, * "who lived near this time, and could not easily be mistaken in the fenfe of the year
the greatest lawyers in fa vour of this prerogatire.
# Such A&ts were, 4 Hen. IV. c. 31. C. 23, &c.
+ Herbert, ubi fupra, p. 12, 13, 20.
books. Next to him shall be Plowden, who, as all lawyers will confess, is as little likely to be mistaken in the sense of the year books, as any reporter we have. Next is 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 discus. sion of a point of obsolete law; but shall refer their final judgment and determination, whether a dispensing prerogative or power did or did not exist 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. In the year 1413, 1 Henry V. * “ The Proved from
act Hen. Vi commons pray, that the statutes for voiding of aliens out of the kingdom may be kept and executed; to which the king agreeth, saving his prerogative, that he may dispense with whom he pleases; and upon this the commons, answered, that their intent was no other, nor never shall be by the grace of God.”
• Ros. Parl, i Hen. V. n. 15.
In the year 1628, 3 Car. I. in a debate between the two houses of parliament upon the petition of right, Serjeant Glanville was deputed in a committee of both houses of parliament in the painted chamber, to de liver the sense of the house of commons, in which speech, he says, “I moft humbly beseech your lordships to weigh the reasons, which I shall present, not as the sense of myself, the weakest member of our house, but as the genuine and true sense of the whole house of commons, conceived in a business debated there with the greatest gravity and solemnity, with the greatest concurrence of opinions and unanimity, that ever was in any business maturely agitated in that house.” And then coming to speak of the point in question, he delivered the sense of the commons in these words: “ There is a trust in.
separably reposed in the persons of the kings mens to Ch. 1. of England, but that trust is regulated by
law; for example, when statutes are made to prohibit things not mala in se, but only mala quia prohibita, under certain forfeitures and penalties to accrue to the king, and to the informers, that shall sue for the breach of them; the commons must, and ever will ac
This prerogative acknowledged by the house of com
* Rushworth's Collections, Parti. p. 571.
ment of the
knowledge a regal and sovereign prerogative in the king touching such statutes; that it is in his majesty's absolute and undoubted power to grant dispensations to particular persons, with the clauses of non obstante, 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 This abridgtime of the revolution, not to allow that the royal prerogadispensing power ever had been a preroga- alteration male tive of the crown, therefore have I before in the constitusaid, in compliance with that fashion, and in volution. conformity with the stile of the bill of rights, that the only alterations introduced into the constitution at that time, were in the succession and tenure of the crown, But I must 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, since 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 said thus much of the existence Our security in
the political and extinction of the dispensing power, to con- equiposite of the vince my readers, that such is the vigilance
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