the three branches of the legislature may, by its diffent, hinder its continuance.

"Befides, the funds for the payment of this body of troops are to be raised by taxes, that never are established for more than one year; and it becomes likewife neceffary, at the end of this term again to establish them."

Against any abuses of the king's prerogative in commencing, carrying on, or concluding wars, or in making treaties, leagues, or alliances with foreign ftates, is the conftitutional fecurity of parliamentary impeachments of the minifters, who fhall have advised or induced the crown to an imprudent, detrimental, or injurious exertion of the prerogative.

"Another capacity, in which the king is confidered in domestic affairs, is as the foun

tain of justice, and general confervator of the peace of the kingdom. By the fountain of justice the law does not mean the author or original, but only the diftributor. Juftice is not derived from the king, as from his free gift; but he is the steward of the public, to dispense it to whom it is due. He is not the spring, but the refervoir, from whence

of the judges.

right and equity are conducted, by a thou fand 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 perfon often heard and determined causes between party party and party; but at prefent, by the long and uniform usage of many ages, our kings have delegated their whole judicial power to the judges of their several courts, which are the grand depofitory of the fundamental laws of the kingdom, and have gained a known and stated jurifdiction, regulated by certain and established rules, which the crown itself cannot now alter but by act

Independence 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 commiffions shall be made

durante bene placito, but)

(not as formerly,

quamdiu bene fe

gefferint, and their falaries afcertained and eftablished; but that it may be lawful to remove them on the addrefs of both houfes

of

of parliament. And now, by the noble improvements of that law, in the ftatute of 1 Geo. III. c. 23. enacted at the earnest recommendation of the king himself 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 pleafed 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 beft fecurities of the rights and liberties of his fubjects, and as most conducive to the ho nour of the crown."

CHAP.

XII.

OF THE DISPENSING POWER IN THE CROWN.

Difpenfing power dangerous to be trufted in the bands of the

crown.

INCE the paffing of the first of Wil

Slam and Mary I will not fuppofe, 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. But 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 fhall beg leave to make fome obfervations upon it. It appears to me as clear, that the difpenfing power, as it was exercised 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 trufted in the hands of the fovereign. As it is now more than a century, fince by this explicit and judicious act of parliament

the dispensing power has been declared unconftitutional, an opinion upon the old legal question may be now hazarded without a fhadow of difpleasure 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 question de bono, but de vero: I think it as true, that the right did exift, as I think it improper that it should 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 himself 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