Constitutional History of England, Henry VII to George II. Volume 3 of 3Hallam, Henry
History
Constitutional History of England, Henry VII to George II. Volume 3 of 3
Hallam, Henry
Constitutional history -- Great Britain
It is by no means evident that the decision in this particular case of
Hales, which had the approbation of eleven judges out of twelve, was
against law.[98] The course of former precedents seems rather to
furnish its justification. But the less untenable such a judgment in
favour of the dispensing power might appear, the more necessity would
men of reflection perceive of making some great change in the
relations of the people towards their sovereign. A prerogative of
setting aside the enactments of parliament, which in trifling matters,
and for the sake of conferring a benefit on individuals, might be
suffered to exist with little mischief, became intolerable when
exercised in contravention of the very principle of those statutes
which had been provided for the security of fundamental liberties or
institutions. Thus the test act, the great achievement, as it had been
reckoned, of the protestant party, for the sake of which the most
subservient of parliaments had just then ventured to lose the king's
favour, became absolutely nugatory and ineffective, by a construction
which the law itself did not reject. Nor was it easy to provide any
sufficient remedy by means of parliament; since it was the doctrine of
the judges, that the king's inseparable and sovereign prerogatives in
matters of government could not be taken away or restrained by
statute. The unadvised assertion in a court of justice of this
principle, which though not by any means novel, had never been
advanced in a business of such universal concern and interest, may be
said to have sealed the condemnation of the house of Stuart. It made
the co-existence of an hereditary line, claiming a sovereign
prerogative paramount to the liberties they had vouchsafed to
concede, incompatible with the security or probable duration of those
liberties. This incompatibility is the true basis of the revolution in
1688.
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