an old, or a new distinction. If it is an old one, the noble lord should shew us where it is to be found; if it is a new one, he should tell us what authority, warranted by the law of the land, has made it. But the truth is, it is the distinction of the day, and I suspect it will never grow older; it is an alleviation of the dispensing power, to sweeten it to your lordships, because too nauseous in the full stinking potion. fair play. I shall likewise, to be as candid as I can, add, because it has been added, during the recess of parliament; and if your lordships please, they shall have the other words too, when parliament cannot be conveniently assembled. Such precisely is the proposition that has been maintained in this debate. For God's sake! my lords, is this the doctrine of the constitution? Is this doctrine that Englishmen will swallow? Can it go down? I do not say with your lordships, will it with the most unread or unlearned in the constitution? If this is a constitutional doctrine, I make bold to pronounce the Revolution, the glorious Revolution! (as I have been taught to call, and to think it,) nothing but a successful rebellion, the most lawless and wicked invasion of the rights of the crown, and the Bill of Rights, that illustrious monument of English liberty, the palladium and bulwark of the constitution, the most false and scandalous libel that ever was published; the most infamous imposition, both on prince and people, ever invented. James 2 neither abdicated, nor forfeited; he was robbed of his crown. His Majesty is an usurper, and his royal ancestors, of blessed memory, even our great and glorious Deliverer himself, have all been usurpers; the Act of Settlement is a nullity, and your lordships are a generation of rebels, whose fathers revolted; many of you are not peers of the realm. Pardon me if I am warm, I cannot help it. The noble lord at the head of the crossbench, who spoke early in this debate, is called a Whig,- -a zealous Whig he calls himself; but he has defended the legality of the Embargo, by maintaining the very proposition I have rehearsed. I say he has defended the legality, for we are not now debating the necessity, and the argument goes to exclude the method pointed at in the Bill moved, of legalizing the measure, and validating it, by a bill of indemnity. The noble lord has told us, he would prove his point from no less authorities, than the Bill of Rights, acts of parliament, and the usage of the privy council. Very respectable authorities indeed! who could desire better? I shall consider them all, as far as I am able to follow the noble lord on memory; and I was as attentive as possible. Now, my lords, to the proposition; and I would first speak a word to the last part of it, the recess of parliament. This is either [VOL. XVI.] There was no such distinction in the days, when the law-making, and the lawbreaking prerogative walked forth at noon tide. The princes that were then endeavouring to establish the dispensing and suspending power, in their best moods, and when they were speaking soft words to parliament, told them, that though they condescended to call them together, it was not because they could not do without them; and that if parliament refused what they deigned to ask, they would only be forced to use the other powers for attaining it, which God had given them. The concomitant, and the fatal principle of those days was, that the rights of parliament were so many concessions of the crown, resumable at pleasure, and the calling them but a gracious compliment from the prince: and so the maxim of the idolators of prerogative, as then understood, that is of absolute and arbitrary power, was à Deo Rex, à Rege Lex. I cannot conceive the ground of this distinction as to the recess of parliament. By the constitution as now modelled, parliament must always be in being, ready to be called, so much so, that even an expired parliament revives, when necessary to be assembled, and another is not chosen. With regard to acts of parliament, I know of no days, either fausti or festi, in which they sleep. They are not like jurisdictions that may be evaded by going into a sanctuary. They are of equal force, while in being, at all times, in all places, and over all persons; or, as Mr. Locke says, Laws, though made in a short time, have a constant and lasting force.' Acts of the executive power are incident, temporary, and instantaneous; but acts of parliament are permanent, made as the general rule by which the subject is to live, and be governed. Unless, therefore, it can be said that the moment parliament breaks up, the king stands in its place, and that the continuance of acts is consigned into his hands, he cannot of right suspend, any [S] more than he can make laws, both requir- | the crown, which is entrusted with the ing the same power. The law is above power, and has the right to act, must be the king; and the crown, as well as the judge of the necessity and season of acting, subject, is bound by it, as much during subject always to the controul of that conthe recess, as in the session of parliament; stitutional advice, by which the crown must because no point of time, nor emergent act in all cases. But these acts, as his circumstance, can alter the constitution, lordship justly observed, are legal, not beor create a right not antecedently inhe- cause they are necessary and proper, but rent. These only draw forth into action because they flow from the proper power; the power that before existed, but was and they are legal and valid, though wrong quiescent. There is no such prerogative in themselves, till corrected; as a legal in any hour or moment of time, as vests power may be improperly exercised, for the semblance of a legislative power in the which the advisers are responsible. But I heartily agree with his lordship that the constitution has entrusted the crown with no power to suspend any act of parliament, under any circumstances whatever; and with his lordship I also declare I never shall, nor can, consent to any such power being entrusted with the crown. crown. If we next examine the foundation of necessity, it will appear to be equally destitute of authority, as the other distinction. But it would be to tire your patience unreasonably, because there is no use in it, to enter into this argument at large. For who has ever read the arguments on ship money, and the dispensing power in former and bad reigns, that does not know, that a supposed necessity was the plea to jus tify the acts complained of? And the answer is ready in the mouth of every one, that if the crown is the judge of that ne cessity, the power is unlimited: because the discretion of the prince, and his council, may apply it to any instance whatever: and so discretion degenerates into despotism. Therefore the wisdom of the constitution has excluded every discretion in the crown over a positive statute, and emancipated acts of parliament from the royal prerogative, leaving the power of suspension, which is but another word for a temporary repeal, to reside where the legislative is lodged, to which only it can belong; that is, in King, Lords, and Commons, who together constitute the only supreme sovereign authority of this government. Nor did parliament ever allow of the dispensing power, or any thing of the kind, because it was exercised under the specious pretence of the safety of the nation being concerned, and the whole kingdom in danger, which was the usual jargon, and, if true, implied the most urgent necessity. The noble and learned lord on the cross bench, who, like a true friend of liberty, has given us so excellent a definition of the constitution, as a government by law, (which I must do his lordship the justice to acknowledge has often come from his lips in this House) has very accurately stated the extent of the crown's discretion, in matters within the legal prerogative. His lordship has truly said, that in these For my own part it is difficult for me to form an idea of the necessity, in any case, of suspending an act of parliament by royal authority; as the parliament may always be assembled in time to prevent an irremediable evil from any statute. Sword and famine seem to be the most alarming evils; but neither of these can possibly ever catch the nation in a case of unavoidable necessity, without culpable neglect. Invasion is not the work of an instant, and government must be totally asleep, the ministers, both at home and abroad, dozing strangely, if there is not intelligence in time to assemble parliament. Scarcity, it is impossible, can ever come at a moment's notice, so as to make famine stare us in the face; and even in the present case it is apparent, that the necessity which, at the instant, justified the embargo, was owing to an inattention that loads the authors of it, and reduces it to the case of Esau's necessity, who sold his birthright for a mess of pottage, because he had not been prudent enough to provide in time for satisfying his hunger at a cheaper rate. The marquis of Halifax has some words so applicable to this subject, that I cannot help quoting them. By the advantage of our situation (says he) there can hardly any such sudden disease come upon us, but the king may have time enough left to consult with his physicians in parliament. Pretences indeed may be made, but a real necessity, so pressing that no delay is to be admitted, is hardly to be imagined; and it will be neither easy to give an instance of any such thing for the time past, or reasonable to presume it will ever happen for the time to come. But if that 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 say, that if a clear case of undeniable necessity could be figured, the legality of the act done under that force would just stand where it did, upon the general principles of the constitution, and not the particular exigency of the instance; and the justification to be effected by an ex post facto law, has not pointed at. For I apprehend it to be bad politics, and I should imagine it worse law, that any special case can ever derogate from a general fixed rule, such as a fundamental law of the constitution. Let us therefore, my lords, take what road we will, still we come back to the general question, has or has not the crown aight 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 My lords; the only example of this usage mentioned by the noble lord was the prohibition of the exportation of gunpowder, which is frequently laid on by the king and council. But to that there is a very short answer, viz. that there is an express provision in one of the acts that have been alluded to, the 12th of Charles the 2d, allowing the King by proclamation to prohibit the exportation of gunpowder, though by the same act the exportation of it is permitted; which is an authority in point against, instead of being one for, the 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. 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 recess 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. 6 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.' 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. I 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 1 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 |