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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, notwithstanding any patent made to the contrary, with clause of non obstante, or notwithstanding any clause of non obstante to the contrary &c.* evidently prefuppose the existence, validity, and legality of such non obftante dispensations. They quoted cases 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 difAuthorities 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 sense of the
the greatest lawyers in favour of this prerogative.
• Such Acts were, 4 Hen. IV. c. 21. Hen. VI.
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
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 discussion 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 occasions, at the distance of above two hundred years from each other.
In the year 1413, i Henry V. *" The Proved froma 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 hall be by the grace of God.”
* Rot. Parl. i Hen. V.
act i Hen. V.
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 deliver the Tense of the house of commons, in which speech, he says, *«I most humbly beseech 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 sense of the whole house 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 business maturely agitated in that house.” And then coming to speak of the point in question, he delivered the sense of the com
mons in these words: “ There is a trust inledged by the separably reposed in the persons of the kings mons to Ch. L 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 acknow
• Rushworth's Collections, Parti: p: 571.
ment of the
knowledge a regal and fovereign 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 fa- , vour upon some, 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 made tive of the crown, therefore have I before con at the resaid, in compliance with that fashion, and in volution, conformity with the stile of the bill of rights, that the only alterations introduced into the conftitution 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- equipoife of the vince my readers, that such is the vigilance
A a 3
of every branch of the legislature upon each other, that we may rest secure in their political equipoise, that none of them will outgrow or absorb the other. If in the variety and change of political occurrences it shall be found requisite either to abridge or enlarge the prerogative of the sovereign, 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 fovereign, as less qualified and enabled to fulfil the executive functions of government, than his ancestors, whose prerogatives were in some points more extensive 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 passed; as the bill of rights, the tolerationact, the act of settlement with its conditions, the act for uniting England with Scotland, and some others; which have afferted our liberties in more clear and emphatical terms; have regulated the succession of the crown by parliment, as the exigences of religious and civil freedom required; have confirmed, and ex
The effects of royal influence.
Blak. Com. b. iv. c. 33. fub. fin: