as the laws permitting the exportation, as those temporary acts prohibiting it in times of scarcity, it is plain that there is not, perhaps, another instance of a thing so well guarded against the fangs of prerogative, in practice as well as by statute. strange thing should fall out, our constitution is not so strait laced as to let a nation die or be stifled, rather than it should be helped by any but the proper officers. The cases themselves will bring the remedies along with them.' This doctrine I can subscribe to in all its parts. But still, I My lords; the only example of this say, that if a clear case of undeniable ne- usage mentioned by the noble lord was cessity could be figured, the legality of the prohibition of the exportation of gunthe act done under that force would just powder, which is frequently laid on by the stand where it did, upon the general prin- king and council. But to that there is a | ciples of the constitution, and not the par- very short answer, viz. that there is an exticular exigency of the instance; and the press provision in one of the acts that have justification to be effected by an ex post been alluded to, the 12th of Charles the 2d, facto law, has not pointed at. For I appre- allowing the King by proclamation to prohend it to be bad politics, and I should hibit the exportation of gunpowder, though imagine it worse law, that any special case by the same act the exportation of it is can ever derogate from a general fixed permitted; which is an authority in point rule, such as a fundamental law of the against, instead of being one for, the constitution. noble lord's argument. And this express statute provision, as to gunpowder, to avoid doubts upon prerogative powers, even in such a case as that of warlike stores, proves how jealous parliament is of a dispensing power, and how scrupulous government has been to rest any thing upon constructive arguments of right, or cases of necessity, to justify the crown's interfering with acts of parliament. Let us therefore, my lords, take what road we will, still we come back to the general question, has or has not the crown a right to suspend an act of parliament, in any case or on any pretence whatever? And let the question be tried by the House's own authorities. I begin with the lowest and last named -the usage of the privy council. The noble lord produced no instances of this usage of the privy council, in prohibiting the exportation of corn. The present is the first we have been informed of. It is clear the queen's ministers would not venture upon it in 1709. On the contrary, when the queen was advised to call parliament on purpose to make provision for preventing famine, it is remarkable that she tells them in the speech from the throne, that she had done all that she could by law; referring to the proclamations issued against forestalling, &c. The queen was not advised even to use the device of laying on a general embargo, thereby to prevent the exportation of corn; though being in time of war, the crown had an undoubted right to lay an embargo. As that would have been using the war power of embargoes indirectly for another end than a war purpose, such an evasion of the law was not judged wise or fit. In the same manner the example of the queen's reign was followed in 1756; which was also a time of war. Lord Hardwicke could not then advise an embargo: we see at all other times of the like exigency, from an apprehension of scarcity parliament has been constantly resorted to and from the bare recital of the several acts of parliament on the subject, as well In regard to the authority of acts of parliament, the only one mentioned by the noble lord, I think, was that converting the Declaration of Rights into a Bill, and making it a statute. We may therefore take both together, the noble lord's argument being founded on a comparison of the Declaration with the Bill or statute, and what the noble lord is pleased to call a difference between them, as if the Bill limited and restrained the words in the Declaration. The noble lord read from his own copy the first article of the Declaration of Rights, presented to the prince and princess of Orange, and verbatim recited in the Bill, or Act of parliament. The words of the article are, • Whereas king James,' &c. did so and so, By assuming and exercising a power of dispensing with, and suspending laws, and the execution of laws without consent of parliament.' And, says the noble lord, this to be sure is general, and would leave no latitude, but this is only the claim as put in by the subject, and therefore when parliament came to enact upon the article, they restrained it, knowing that it was impossible but there might be a necessity for the crown's suspending some particular acts of parliament, during the rccess of parliament. I appeal to your lordships if, this was not the noble lord's reasoning precisely, and his very words; I marked them well, for I own they surprised me. And the noble lord next reads on your Journals the second article of the Bill, in the enacting part, which stands thus (viz. declared by parliament) that the pretended power of dispensing with laws, or the execution of laws by legal authority, as it has been assumed and exercised of late, is illegal.' Hence, says the noble lord, it is clear that parliament, when they came to make the statute, would not deny every degree or kind of a dispensing power in the crown, but only as exercised of late,' that is by king James. I confess the reasoning astonished me, and I think it could not convince your lordships, or any man living, if the thing rested on the very words the noble lord has read, to prove his distinction between the Declaration and the enacting Bill. pensing with the Test Act, in favour of the Roman Catholic officers he employed: and the language which the parliament held in that remonstrance deserves our most particular notice. They told the king that the consequences of dispensing with that law, without an act of parliament, were of the greatest concern to the rights of the subject, and to all the laws.' King James suspended no acts of parliament besides these penal laws; and to penal laws only did the judges he corrupted extend that shameful opinion for the dispensing power, which they give judicially in a particular case; an opinion grounded upon such notable reasons as these, that the laws of England were the king's laws, and therefore it was an incident, inseparable prerogative of the kings of England, as of all other sovereign princes, to dispense with all penal laws; and that it was not a trust invested in, or granted to the king, but the ancient remains of the sovereign The history of these words as exercised power of the kings of England, which of late' is well known. They were an never had been taken from them, nor amendment made by the Lords to the Bill could be.' Yet for dispensing with and to save some old charters and grants, with suspending these penal laws only, laws non obstantes: and to secure against all dis- that, in so far as they affected Protestant pensations whatever with statutes in time dissenters, were truly a grievance, and to come, there is a clause in the end of the therefore were repealed after the RevoluAct, declaring that no dispensation by non- tion, did the estates of this kingdom deobstante of, or to any statute, should be throne king James: and it was declared thereafter allowed, except a dispensation in the Bill of Rights, that the pretended be allowed, in such statute. But what power of dispensing with laws, or the exewas the dispensing power exercised of late cution of laws by legal authority, as it had by king James? It was only dispensing been so assumed and exercised of late, with penal laws; that is, a remitting or was illegal. What then must we think, in dispensing with penalties inflicted by act these times, of such a construction, as is of parliament in certain cases: and even now held out of the Bill of Rights, which that sort of dispensation, or exercise of attempts to invalidate and pervert the the dispensing power by king James, is great charter of the Revolution, by setting condemned by the Bill of Rights, as illegal. up, as a prerogative of the crown, a right, These words, therefore, upon which the in all cases of necessity, to dispense with all noble lord has laid so much stress, furnish laws, touching our liberty, and our proone particular remark, but it is most un-perty?-a right, to which in these instances favourable to the purpose for which he king James 2, with his most corrupt judges, has quoted them. Your lordships will never dared to aspire. have prevented me in it, by recollecting what I had just now mentioned. For though king James undertook to shew, by the means of his corrupt judges, that a power in the king to dispense with law was law, the only acts of parliament upon which he made his essay of the dispensing and suspending power were the penal statutes against non-conformity: from which, for the sake of the Papists, he gave a general exemption by the lump to all his subjects. He took that method, because parliament had remonstrated against his dis But my wonder is not confined to the noble lord's construction or interpretation of these words. For I am utterly at a loss to understand how the noble lord got at the second article of the enacting Bill, without reading the first; or how he took the second article alone of the Bill for the whole echo of the first article of the declaration or claim of rights recited in it, as the preamble of the enacting part, when the half of the answer to the first article of the claim or declaration is in the first article of the Bill. But however the noble lord may have past cost, and without it, every thing else will be of little value. I hope nothing shall ever tempt your lordships to be liberal so much at the expence of your fellow subjects. Slices of the constitution are the last thing I will give away, nor shall I consent to maim it, to gratify any man, or to justify any measure. As to the noble lord's question, what would be the distress on many occasions, if there was in no case a power in the crown to suspend an act of parliament? After the words of the Bill, that is the statute of rights, which I have quoted, I will give no other answer than this, that they exclude totally, absolutely, and in the most general terms possible, any such power; and I am yet to learn what posterior statute has repealed one article of the Bill of Right, or vested in the crown, or the privy council such a sort of chancery powers, to suspend laws and acts of parliament, on suggestions of equity, or expediency, for the safety or relief of the subject: nor do I see that such an alteration would be an amendment of the constitution; I think it would destroy it, to the very foundation. over that first article of the enacting part, I dare say it is not out of any of your lordships' memory. Hear the words of it. (Art. 1, of the enacting Bill) Declare that the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal' the very precise letters and words of the first article of the Declaration, or Claim of Rights, only leaving out the word dispensing,' because that it is made an article by itself in the second of the enacting Bill. After reading this first article of the enacting part of the Bill, I certainly need not ask your lordships, or the noble lord himself, where the limitation is, in that article, on which his lordship has founded his whole argument? Nor will the noble lord deny, that the first article is as much a part of the act of parliament as the second. Most undoubtedly there is not the least difference between the bill and the claim in this general, unlimited, and unrestrained position, that the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal; every word of which is emphatical. And so parliament in the same Bill enacts, that all and singular the rights and liberties asserted and claimed in the said Declaration, are the true, ancient, and indubitable rights and liberties of the people of this kingdom, and shall be so esteemed, allowed, adjudged, deemed, and taken to be; and that all and every the particulars aforesaid shall be firmly and strictly holden and observed, as, they are expressed in the said Declaration; and all officers and ministers whatsoever shall serve their majesties and their successors according to the same.' I The noble lord says it is a narrow and illiberal idea that the crown has not, or ought not to have, a power, for the public good, to suspend an act of parliament. do not know what the noble lord's notions of liberality are, or how liberal his own ideas may be. Extraordinary liberality received, may beget extravagant returns. Profusion in giving may produce vast compliance in yielding; and to whom much is given, of them the more will be required. A great authority says, that gifts blind even the wise. For my part I confess, I have no opinion of that liberality of which the constitution is the subject. Of the constitution no man can be too sparing or abstemious. She has cost much, and she is worth all that she has We have had a philosophical argument upon prerogative, to prove that the prohibition in question, was a legal exercise of legal prerogative: and Mr. Locke's authority has been quoted a page or two of whose chapter on prerogative the noble lord in my eye has read. Nobody has greater respect for Mr. Locke's writings than I have; yet if I found any thing in them that did not square with the settled fundamentals of the constitution, I should not be moved by him. It is highly improper, I am afraid, to enter here into a general discussion of Mr. Locke's ideas, and nothing but the deference, I will add, the justice, due to so venerable a name, would have made me go into this. But I believe Mr. Locke and I do not at all differ, and I think he is misunderstood, when brought as an authority on the other side. It is not doing him justice; for surely there was not a man in England a greater enemy to the dispensing power than himself. Prerogative is a word that has been the occasion of great wranglings, and certainly the princes of the House of Stuart understood by it arbitrary power, or something so very near it as not to be distinguishable. I have a very simple notion of it, and it is this, that prerogative is that share of the government which, by the constitution, is vested in the king alone. Lord Coke, after giving the etymology of the word as denominated from the most excellent part, because the king must be first asked before any law is made, says, the prerogative comprehends all the powers, preeminences, and privileges which the law giveth to the crown. It is no distinct or separate inheritance in the crown opposed to the interest of his people. It is a trust • ad communem totius populi salutem,' just as much as the powers of parliament are.' Now I can never conceive the prerogative to include a power of any sort to suspend or dispense with laws, for a reason so plain that it cannot be overlooked unless because it is plain; and that is, that the great branch of the prerogative is the executive power of government, the duty of which is to see to the execution of the laws, which can never be done by dispensing with or suspending them. When Mr. Locke speaks of the prerogative as acting sometimes against law, or of the laws themselves yielding to the executive, it is far from his meaning that the prerogative or executive can dispense with or suspend laws. His example makes it clear, viz. that of pardoning offenders where the law condemns, which is certainly undoubted prerogative. There the law yields, not in its force or subsistence, but only in its consequences, and in a particular instance: and though the king can pardon, he cannot beforehand, even in a particular instance, dispense with the law. The expression of acting against law, is perhaps not well chosen, but it is evident Mr. Locke intended to express no more than this, that the crown can by pardon (for instance) prevent that execution which the law would effect. As for the other instance mentioned by Mr. Locke of the law yielding, viz. pulling down a house to stop a fire, it is a clear inaccuracy, for that has nothing in the world to do with prerogative, or even with magistracy, no more than throwing goods overboard to keep a ship from sinking. It is an instantaneous act of self-defence, to authorize which no man waits for, nor needs seek the order of a magistrate. The fact of danger which is visible, justifies it in law, just as the danger of a ship justifies in law the throwing goods overboard: and both acts are legal, and allowed by all the laws in the world. Nobody ever heard or read of a proclamation or edict from the sovereign to pull down a house in the midst of a conflagration. So that if Mr. Locke's whole definition of prerogative is taken together and fairly expounded by what he himself says, it would be found he perfectly agrees with what other sound constitutionalists have advanced, that prerogative is a power in the person of the sovereign, to command or act in matters not repugnant to the law, or for which the law has not provided, and certain acts of grace and favour, which the king might exercise with regard to some particular persons, provided these acts were not very prejudicial to the rest of the nation.' Let Mr. Locke be but allowed to speak in his own words, and no error can be drawn from them. His reasoning in support of what he calls the law yielding to prerogative or the executive is this, Since many accidents may happen, wherein a strict and rigid observation (he should have said execution) of the laws may do harm, and a man may come sometimes within the reach of the law, which makes no distinction of persons, by an action that may deserve reward and pardon, it is fit the ruler should have a power in many cases to mitigate the severity of the law, and pardon some offenders.' And in the other places alluded to, where he speaks of prerogative acting against law, he reasons thus, For since in some governments the law-making power is not always in being, and is usually too numerous, and too slow for the dispatch requisite to execution; and because it is also impossible to foresee, and so by laws to provide for all accidents and necessities that may concern the public, or to make such laws as will do no harm, if they are executed with inflexible rigour on all occasions, and upon all persons may come in their way, therefore there is a latitude left to the executive power, to do many things by choice, which the laws do not prescribe.' Mark the last words! that which the laws do not prescribe.' He does not say of doing things to make laws of no force. Nor in any one place of the book does he speak of prerogative as having a power to suspend any law. On the contrary, he largely handles the power of positive laws over the prerogative itself, to declare limitations of it; and shews the absurdity of calling such limitations encroachments upon the prerogative: and he is very clear and express, 'that the legislature is the supreme power of the commonwealth, and that no edict of any body else, in what form soever conceived, or by what power soever backed, can have | the force and obligation of a law, which has not its sanction from that legislature which the public has chosen and appointed, and that no obedience is due but ultimately to the supreme authority, which is the legislature.' Any author may be misunderstood by taking detached pieces of his writings, and that only can render Mr. Locke's sense of this matter dark or obscure; though I do not think he is always nicely correct in his expression. For one instance, he says, in one place, that the supreme power cannot take from any man any part of his property without his consent, because the end of government is to secure property.' Yet would not any man be justly laughed at to produce this sentence from Mr. Locke, to prove that parliament could not divest the owners of the property of the houses which the Bank has thrown down in Threadneedle Street, upon giving them a compensation? Mr. Locke knew better than to doubt it; though that single sentence, if it stood by itself, might import a contrary opinion. very rule that I, and I trust every Englishman in his senses does, and for ever will, decide, that a suspending power is not, cannot be a legal prerogative, in any circumstances, or under any pretence whatsoever, because the tendency of the exercise of such a prerogative is destructive to the constitution. I say the tendency of the exercise; for it tends to render acts of parliament uncertain, and to bring positive law under the discretion, that is the pleasure of the crown, and consequently to set the whole rights and liberties of the subject afloat, so that no man can for a moment be sure of the law, though it is his inheritance and birth right. Then, indeed, it would be vis mensura juris.' Far, therefore, am I from differing with Mr. Locke, in what he says in the words quoted. I find myself at full liberty to express my approbation of his reasoning. I adopt his rule of decision of that great question, whether a thing claimed as a prerogative, be, or ought to be, one. And I also heartily concur with Mr. Locke's sentiments in the only other quotation that has been read from him, 'that when A great deal has been said on this occa- that great question does arise, (and it sion by the noble lord, who has quoted must be the greatest of misfortunes when Mr. Locke, upon a few other words of it does) between an executive and a lethat great author, where he says, that if gislative power, constituted as ours are, there comes to be a question between the there is no judge on earth to decide it; executive power and the people, about a and therefore the only remedy is the apthing claimed as a prerogative, the ten-peal to Heaven, that is, to the 'sword.' On dency of the exercise of such a prerogative to the good or hurt of the people will easily decide that question.' And the argument drawn from these words, is to shew that the tendency of the embargo in question, to the good, and not to the hurt of the people, must decide for the legality of the measure, as an exercise of legal prerogative. But I must say there never was, in my poor apprehension, an argument founded in a greater mistake, or an author more unseasonably cited. that principle do I approve and justify the conduct of those great and brave men, who maintained our liberties at the expence of their lives. They first contended for them, in parliament, by force of reason, and particularly against the dispensing power of the crown; and when the obstinacy of unhappy princes, enslaved with the notions of arbitrary power, which they call prerogative, left no other option but to submit to the usurpation of the crown, or to fight, they drew their swords, and Heaven, to which they appealed, propitious to English liberty, jus Mr. Locke is not here speaking of the tendency of a single act done in exercise of a right of prerogative, as a rule to de-tified their cause, and crowned it with cide the legality of that particular act: he speaks (and his words are plain) of the tendency, that is, the general tendency of the exercise of a power or thing claimed as a prerogative, as a rule by which the question may be decided, whether that power or thing claimed as a prerogative, be really a legal prerogative, or only an usurpation and most undoubtedly it may be a safe rule of decision. It is upon that success. In that extremity it was their right, their undoubted right, upon the doctrine of legal resistance, which is incorporated in this constitution, to take the field against the princes who were the enemies of their people, the oppressors their liberties. For as Mr. Locke truly says, in the forcible expressions that have been read by the noble lord, The people have, by a law antecedent, and para of |