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K. Ed. VI.

"The act of 1 E. VI. c. 12. (which repeals Repealed by the terrible law) begins with a mild and merciful preamble, and mentions that act of King H. VIII.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 obferve, might feem to men of foreign realms, and to many of the king's fubjects, very strict, fore, extreme, and terrible; 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 phrafe) was honourably laid in its grave; and God grant it may never rife again.

The ingenuity of man cannot invent a reafon or an argument against the propriety and policy of the difpenfing power, which does not apply with redoubled force against this act of Henry VIII. ; but no reason could prevent the operation of the statute, whilst it remained in force; and no reafon could destroy the royal prerogative or power of difpenfing with the obligations of certain ftatutes by a non obftante, till the legislature declared it illegal. I admit of the force, energy, and conclufion of all the reasons and arguments against the one and against the other, not to prove their inefficacy or nonexistence, but to establish the neceffity of the repeal or annihilation of them both. I canA a

not

Stronger argu this act of H.

ments against

VIII. than against the dif

penting power.

The arguments

prerogative.

not help obferving, that all the authorities for the dispensing prerogative are exprefs, open, and unambiguous; and that all the arguments (for exprefs authorities I find none,) againft it are a priori, or ab incongruo.

So violently were the two oppofite opinions upon this point formerly agitated, that neither argument nor authority feemed to make the smalleft impreffion upon the adverin favour of this fary. Thofe, who maintained the prerogative argued, that statutes, which provide for particular cafes, notwithstanding any patent made to the contrary, with claufe of non obftante, or notwithstanding any clause of non obftante to the contrary &c.* evidently prefuppofe the existence, validity, and legality of fuch non obftante difpenfations. They quoted cafes in point from the year books, and the explanations and applications of them, by the greatest lawyers of all fubfequent times, who are unequivocally clear and decifive in their opinions upon the legality of fuch dif Authorities of penfations. Thus lord chief juftice Herbert for this purpose first quotes Fitzherbert,

the greatest lawyers in favour of this prerogative.

*" who lived near this time, and could not eafily be mistaken in the fenfe of the year

*Such Acts were, 4 Hen. IV. c. 31. Hen. VI, c. 23, &c.

Herbert, ubi fupra, p. 12, 13, 20.

books.

books. Next to him fhall be Plowden, who, as all lawyers will confefs, is as little likely to be mistaken in the fenfe of the

year books, as any reporter we have. Next is my lord Coke." And when he quotes the words of my lord Vaughan, he fays, "Whom I cite the oftner, because every body remembers him, and it is very well known he was never guilty of ftraining the king's prerogative too high." I wish not to charge and clog my readers attention with a dry tedious difcuffion of a point of obfolete law; but shall refer their final judgment and determination, whether a difpenfing prerogative or power did or did not exift 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.

The Proved from

In the year 1413, 1 Henry V. commons pray, that the ftatutes for voiding of aliens out of the kingdom may be kept and executed; to which the king agreeth, faving his prerogative, that he may difpenfe with whom he pleafes; and upon this the commons. answered, that their intent was no other, nor never fhall be by the grace of God."

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act Hen. V.

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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 sense of the house of commons, in which speech, he fays, "I most humbly befeech your lordships to weigh the reasons, which I fhall present, not as the sense of myfelf, the weakest member of our house, but as the genuine and true fenfe of the whole house of commons, conceived in a business debated there with the greatest gravity and folemnity, with the greateft concurrence of opinions and unanimity, that ever was in any bufinefs maturely agitated in that house." And then coming to speak of the point in queftion, he delivered the fenfe of the commons in these words: "There is a truft infeparably repofed in the perfons of the kings mens to Ch.1. of England, but that truft is regulated by law; for example, when ftatutes are made to prohibit things not mala in fe, but only mala quia prohibita, under certain forfeitures and penalties to accrue to the king, and to the informers, that fhall fue for the breach of them; the commons must, and ever will ac

This prerogative acknow-. ledged by the

houfe of com

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knowledge a regal and fovereign prerogative in the king touching fuch ftatutes; that it is in his majesty's abfolute and undoubted power to grant difpenfations to particular persons, with the claufes of non obftante, 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 time of the revolution, not to allow that the difpenfing power ever had been a prerogative of the crown, therefore have I before faid, in compliance with that fashion, and in conformity with the ftile of the bill of rights, that the only alterations introduced into the constitution at that time, were in the fucceffion and tenure of the crown. But I must now beg leave to obferve, that I reckon this abridgment of the prerogative royal, as a third alteration. Tho' as to the main effect, it is perfectly immaterial, fince 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 faid thus much of the exiftence

and extinction of the difpenfing power, to convince my readers, that fuch is the vigilance

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