Imatges de pÓgina


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


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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.

« The

and 35

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


VIII. than


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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 presuppose the existence, validity, and legality of such non obstante 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 disAuthorities of penfations. 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.

Hen. VI,

# Such A&ts were, 4 Hen. IV. c. 31. C. 23, &c.

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


my lord

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 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 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 fall be by the grace of God.”

• Ros. Parl, i Hen. V. n. 15.
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