of the infraction of them, "judicandum est legibus non exemplis." But even the precedents which have usually been adduced in favor of the existence of the power of arbitrary taxation in England, have been greatly misrepresented. Mr. Brodie in a recent publication has exposed many of the prevalent errors upon this subject, which are to be found in the writings of Hume. The greater part of the examples in which the subjects' right has been violated, are, when viewed together with all the concomitant circumstances of the occasion, of a very doubtful and qualified nature: whilst the authorities on the other hand which manifest the restraint upon the prerogative, in this respect, are numerous and conclusive. Kings of England have abstained from imposing taxes without the consent of Parliament, at times when every inducement was operating on their minds to resort to such a course had it been lawful: they have solicited assistance from the bounty of individuals and of Parliament, without any salvo of their right: moneys which the crown has obtained without the common consent, have been recovered by suits at law: Kings have acknowledged in Parliament the impropriety of their infringing upon this undoubted privilege of the subject. Even that arbitrary monarch, Henry the Eighth, withdrew a commission which he had of his own authority issued to levy a tax upon the kingdom, and laid the blame upon his Minister Wolsey, of that flagrant encroachment of the prærogative. Judge Hutton in delivering his judgment tipon the case of Ship Money, relates that Queen Elizabeth, a sovereign no less jealous of power than her father, sent her Privy Counsellors to all parts of the kingdom to countermand a commission which had been issued for levying a tax as soon as she was convinced of its illegality; the same Judge mentions that he as well as the others, who were forced to contribute on that occasion, had the sums which had been exacted refunded to them. This important constitutional principle was vigilantly guarded at the period of the Revolution by a particular clause in the Bill of Rights; and it was a laudable measure of the Parliament of William, to determine that he was to receive the revenue of the Crown as a gift from themselves, and not by way of succession from his predecessor.It has been justly observed by Burke, that the same attempts will not be made against a Constitution fully formed and matured, that were used to destroy it in the cradle, or to resist its growth during its infancy. But if any rash individual shall in future times harbour a thought of abetting a Sovereign of this country, in the long abandoned claim of arbitrary taxation, the impeachment of the Judges who concurred in the illegal proceedings against Hampden, will afford him an awful, but not a solitary, example in the annals of this country of the punishment which the national justice denounces against such

persons

persons as have yielded themselves to be the instruments of despotic power in taking from the people of England, what they have not consented to give.

But it is obvious that the liberties of a country, however cautiously they are provided for by existing institutions, would remain in an insecure condition, if it were in the power of the Sovereign to change the laws, or to suspend or dispense with them at his pleasure. It is upon the restrictions with which the prerogative is bound in this respect, that Fortescue, in the present Chapter, grounds his eulogium on the permanent advantages, and the safety of the English Constitution. Before the time when Fortescue wrote, a king of England had attempted to invalidate a Statute on the ground that he only dissembled when he 66 his assent to it. gave Dissimulavimus, sicut oportuit, et dictum pretensum statutum sigillari permisimus hac vice," (Barrington's Observations on the 15 Edw. III. See also his Remarks on 10 Rich. II.) And an attempt had been made by a Prince of Wales, to impede the operation of a Statute by a particular entry upon the Parliament roll, (3 Inst. 325. Ruffhead's Preface to the Statutes. Lord Macclesfield's Trial, Sergeant Pengelley's Reply.) And several of our Kings had not scrupled to imitate a scandalous device first introduced in support of the Papal usurpations, that of evading the laws of the country by means of a non obstante," (Sir R. Atkyns on the Dispensing Power. Luder's Tract on the same Subject.) But the authority of Fortescue will be noticed as being strikingly repugnant to such illegal and unworthy practices: and when he was Chief Justice he vindicated, by his conduct, the opinions which his book contains; for in the Star Chamber he strenuously opposed an appointment of the Crown, which had been made in contravention of a Statute of the realm, (2 Inst. 559.) It is true that some great lawyers have recognized the legality of the dispensing power in special cases, and within particular limits: and under these restrictions it is treated as indisputably appertaining to the Crown by Sir E. Coke, (Co. Litt. 120. 3 Inst. 154. Sir T. Smith de Rep. lib. ii. c. 3. Thomas v. Sorrel. Vaughan's Rep. and the references in Hargr. Co. Litt. 120. a. n. 3 and 4. See a Dispensation by Letters Patent in Fortescue's time for Discovering the Philosopher's Stone, 4 Inst. 74.); but he has pointed out many pernicious effects arising from the exercise of it; and on an important occasion, he reprobated, in the most forcible manner, the notion that a general power of altering the laws was a part of the royal prerogative; supporting his opinion mainly upon what Fortescue has written on the subject in the present Chapter. (Case of Proclamations, 12 Rep. See also 3 Inst. ch. 86.) The doctrine in the text is utterly inconsistent with the position advanced by Chief Justice Herbert, in the time of Charles II. "that the laws of England are the King's laws, and that therefore it is

the

the inseparable prerogative of the Kings of England to dispense with them." But is in complete unison with the principles of the Constitution, as established by the Bill of Rights; according to which the dispensing and suspending powers, except where they are specially conferred by Parliament, are abolished, whatever shape they may assume, or under whatever pretext they may be veiled. (See further on this subject, Atkyns on the Dispensing Power. Hurd's Dialogue on the Constitution. Cases of Sir Edward Hales, and of the Seven Bishops in the State Trials. Proceedings in Parliament relative to the Declarations of Indulgence, tem. Car. II. and Jac. II. Clarke's Stuart Papers, Vol. II. p. 80: and see Hargr. Co. Litt. 120 a. n. 4. the peculiar manner in which the Dispensing and Suspending Powers are noticed in the Declaration of Rights, and the Bill of Rights. For the Proceedings in Parliament after the Revolution with respect to the Dispensing Power, See Gray's Deb. Vol. IX. p. 297 to 307. 314 to 332. 336 to 344, 396. Chandl. Deb. Vol. I. p. 394.)

CHAP. X.

Prince. How comes it to pass, my Chancellor, that one king may govern his subjects in such an absolute manner, and a power in the same extent is unlawful for another king: seeing kings are equal in dignity, I am surprized that they are not likewise equal in the extent and exercise of their power.

C

CHAP. XI.

THE CHANCELLOR'S ANSWER.

Chancellor. I HAVE, Sir! in the small piece referred to, sufficiently made appear, that the king who governs by political rules has no less power than him, who governs his subjects at his mere will and pleasure; yet, that the authority which each has over their subjects is vastly different, I never disputed it. The reason of which, I shall, in the best manner I can, endeavour to explain.