Independence of the judges.

right and equity are conducted, by a thoufand channels, to every individual. And hence it is, that all jurifdictions of courts are either mediately or immediately derived from the crown, their proceedings run generally in the king's name, they pafs under his feal, and are executed by his officers.

"It is probable, and almoft certain, that in very early times, before our conftitution arrived at its full perfection, our kings in person often heard and determined caufes between party and party; but at present, by the long and uniform ufage of many ages, our kings have delegated their whole judicial power to the judges of their feveral courts, which are the grand depofitory of the fundamental laws of the kingdom, and have gained a known and stated jurisdiction, regulated by certain and established rules, which the crown itself cannot now alter but by act of parliament. And, in order to maintain both the dignity and independence of the judges in the fuperior courts, it is enacted by the ftatute 13 W. III. c. 2. that their commissions shall be made (not as formerly, durante bene placito, but) quamdiu bene fe gefferint, and their falaries afcertained and established; but that it may be lawful to remove them on the addrefs of both houses

of

of parliament. And now, by the noble improvements of that law, in the statute of 1 Geo. III. c. 23. enacted at the earnest recommendation of the king kimself from the throne, the judges are continued in their offices during their good behaviour, notwithstanding any demife of the crown (which was formerly held immediately to vacate their feats) and their full falaries are abfolutely fecured to them during the continuance of their commiffion; his majesty having been pleased to declare, that he looked upon the independence and uprightnefs of the judges, as effential to the impartial administration of justice, as one of the best securities of the rights and liberties of his fubjects, and as moft conducive to the honour of the crown."

CHAP.

CHAP. XII.

OF THE DISPENSING POWER IN THE CROWN.

Dispensing power dangerous to be trusted in the hands of the crown.

S

But

INCE the paffing of the first of Wil. liam and Mary I will not suppose, that any one individual in the nation can look upon the difpenfing power to be a legal or conftitutional prerogative in the crown, or that it can on any occafion be exercised by the king independently of parliament. as this was one of the great grievances complained of at the revolution, and was generally looked upon by the nation as an ufurpation of the crown, and a direct incroachment upon the liberties of the people, I shall beg leave to make fome obfervations upon it. It appears to me as clear, that the dif penfing power, as it was exercifed down to the time of the revolution, was a part of the ancient royal prerogative, as it is unqueftionable, that it was in its nature a power capable of the groffeft abufe, and confequently highly improper and even dangerous to be trusted in the hands of the fovereign. As it is now more than a century, fince by this explicit and judicious act of parliament

the

the dispensing power has been declared unconftitutional, an opinion upon the old legal queftion may be now hazarded without a fhadow of displeasure or offence. I fhall do it by way of illuftration of the principle, that the fovereignty of power continues for ever unalienably to refide with the people; and to this principle I attribute the glory and prefervation of the English conftitution.

Of this question I fay what lords Ellef mere and Bacon faid formerly of another, that it is not a queftion de bono, but de vero: I think it as true, that the right did exift, as I think it improper that it fhould have exifted. The account of the authorities in law, upon which judgment was given in Sir Edward Hale's cafe, written by Sir Edward Herbert, chief juftice of the common pleas in vindication of himfelf I cannot help commending as one of the most upright, folid, and convincing arguments I ever remember to have read, as far as it goes to prove the existence of the right from its ancient and continued ufage and practice. But like all other tories, he deduced this prerogative of the crown, like the whole regal dignity and power itself, from the wrong fource. He clearly fhews the ufage and exertion of this prerogative to have been noticed and acknowledged

the usage of the

knowledged by parliament and the courts of

law for fome centuries. It would only then It appears from have exifted by the fufferance, acquiefcence, or recognition of the community; and that it did fo, the very ufage of the term of non obftante is a convincing proof.

term non abfante, that the difpenfing

power was actually exercifed.

I do not mean to enter into nor repeat any of Sir Edward Herbert's arguments. The difference, which is admitted by all parties, between the right of difpenfing from flatutes, which enjoin mala in se and mala prohibita, is to my mind fufficiently convincing, that the people of this nation did heretofore acknowledge or admit of a right in their fovereign to difpenfe in certain cafes with the obligations of acts of parliament. The difference For as to mala in fe, it was no more in the power of the parliament, than of the king, to

between dif

pening with mala probibita

abfurd.

and mala in fe, permit or allow of any dispensation or sufpenfion from them, as is evident; that is, no human power whatever could render malum in fe, licit or lawful, much less legal or conftitutional; and as to the malum prohibitum, we are speaking of what is prohibited by the legiflative authority: now it is evident, that the executive power, as a part of the legiflature, can of itself have no abfolute power, nor controul, nor jurifdiction over the whole legiflature, for then the part would be greater

than