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Acquiefcence

of the commu

rogative gives

a right to the crowa

part
of the conftitution; but the poffibility
of abusing a prerogative does not certainly
do away the fovereign's right to it. In all
fuch kinds of prerogative, the difcretionary
and prudential power of exertion is not the
leaft part of the prerogative itself.

Upon the whole, fince this very great and enormous power or prerogative is now for the benefit and happiness of the nation rendered illegal and unconftitutional, I fhall expect, fince all party motives and reasons are now at an end, that fome few obfervations will be candidly attended to by an unbiaffed, because now a difinterefted public; and I frankly profefs, that I fhall prefume upon most of my readers thinking with me, that their ancestors, in 1688, were as commendable for infifting upon the annihilation of the right, as their progenitors had been blameable for having acquiefced in or fubmitted unto it fo long.

It appears, that the free acquiefcence of the nity to the pre- community in the actual exercife of this prerogative in the crown, is a convincing proof of the right of the fovereign to the prerogative itfelf; (for almoft the whole prerogative of the crown originated from, and became established by the tacit confent of the people).

In

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In the days of King Henry VIII. the parliament paffed an exprefs act, by which they actually vested in the king a much more dangerous and extenfive prerogative or power, than the difpenfing 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, whilft the act was in force. This prerogative or right of difpenfing in certain cafes 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 feries of years recognized by acts of parliament, difcuffed and confirmed by courts of law, frequently exercifed by the king, and always fubmitted 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 conftitutional writer, and an old whig, speaks in this manner: "Now from this fuppofed and imaginary defect of law, or fome particular mifchief or hardship fometimes (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 difpenfing with

Penal Statutes, p. 199. & feq.

oftener

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At that proclamations by the king fhould

of acts of par

oftener pretended and feigned than happening in truth) occafion has been taken to affert a power in the prince or chief ruler to difpense with the law in extraordinary cafes, and to give cafe or relaxation to the perfon, that was too hard bound or tied to a law for, as I obferved before, the law is of a binding and reftraining nature and quality; it hath the fame fpecious pretence as a law made 31 H. VIII. c. 8. had, which was of moft defperate and dangerous consequence, had it not speedily been repealed by the statute of 1 E. VI, c. 12,

"The title of that mifchievous act of 31 H. VIII. is this; An Act that Proclamahave the force tions made by the King's Highness, with the Advice of the Honourable Council (meant of the privy council) fhall be obeyed and kept as though they were made by Act of Parliament.

liament.

"The preamble recites, the king, by advice of his council, had thentofore fet forth fundry proclamations concerning articles of religion, and for an unity and concord to be had among his fubjects, which nevertheless many froward, wilful, and obftinate perfons have wilfully contemned and broken, not confidering what a king by his royal power may do; and for lack of a direct statute and law to coherce offenders to obey these proclamations,

clamations, which being still suffered, should encourage offenders to the difobedience of the laws of God, and found too much to the great dishonour of the king's most royal majefty (who may full ill bear it).

"Confidering alfo, that fudden occafions fortune many times, which do require speedy remedies, and by abiding for a parliament, in the mean time might happen great prejudice to enfue to the realm; and weighing that his majefty (which by the regal power given by God, may do many things in fuch cases) should not be driven to extend the fupremacy of his regal power, by wilfulness or froward fubjects; it is therefore thought neceffary, that the king's highnefs of this realm for the time being, with the advice of his council, fhould 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 neceffity fhall require.

"Therefore it is enacted, that always the king for the time being, with the advice of his council, whofe names thereafter follow, (and all the great officers of ftate 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,

act, his proclamations, under fuch penalties, and of fuch fort as to his highness and his council, or the more part of them shall seem requifite; and that the fame fhall be obeyed, as though they were made by act of parliament, unless the king's highness difpenfe with them under his great feal.

"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 claufe, that would feem 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 confeffion, or lawful witnefs or proofs.

"And if any offender against any fuch proclamation, after the offence committed, to avoid the penalty, wilfully depart the realm, he is adjudged a traitor.

"And the juftices of peace are to put thefe proclamations into execution in every county. And by another act of 34 and 35 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

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