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clamations, which being ftill fuffered, fhould encourage offenders to the difobedience of the laws of God, and found too much to the great dishonour of the king's moft 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) fhould 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 highness 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 cafes 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 state are mentioned by the titles of their offices), for the time being, or the greater number of them, may fet 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 dispense 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 witness 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

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 feem to men of foreign realms, and to many of the king's subjects, 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.

Stronger argu

ments

this act of H.

VIII. than against the dif

The ingenuity of man cannot invent a reafon or an argument against the propriety and policy of the dispensing power, which does not apply with redoubled force against penting power. this act of Henry VIII. ; but no reafon couldprevent the operation of the statute, whilst it remained in force; and no reafon could destroy the royal prerogative or power of dif penfing 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

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

The

prerogative.

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 ftatutes, 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 such dif Authorities of penfations. Thus lord chief juftice Herbert for this purpose first quotes Fitzherbert, *" who lived near this time, and could not eafily be mistaken in the fenfe of the year

the greatest lawyers in favour of this prerogative.

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

† Herbert, ubi fupra, p. 12, 13, 20.

books.

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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 difcuf-
fion of a point of obfolete law; but shall re-
fer 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 occa-
fions, at the distance of above two hundred
years from each other.

act Hen. V.

In the year 1413, 1 Henry V. The Proved from commons pray, that the statutes 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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