Page:Ruffhead - The Statutes at Large, 1763.djvu/23

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xix
PREFACE.

in Purſuance of a Power ſpecially given by a Clauſe in the ſaid Act, of the 23d, enabling the King, within a limited Time, to declare, by his Letters Patent, whether it ſhould take Effect as an Act, or not[1].

As to the Words of Ed. III. Difſimulavimus, &c. they ought to be buried in ObKvion ; and in Truth it is manifeſt, from the foregoing Obſervations, that no concluſive Argument can be deduced from this Confeſſion, ſo inglorious to Majeſty.

Concerning the 4 of Hen. c. 13. which confirmeth the 1, 18, and 25 of Ed. III. nothing can be inferred from thence, that thoſe Statutes had not the Force of a Law, before their Confirmation : For it is well known, that, according to the ſimple Policy of antient Times, when Laws were not duly obſerved, they could deviſe no better Expedient of enforcing them, than by re-enacting them with Clauſes of Confirmation. But ſuch Confirmations are no Evidence that the Acts, till then, had not the Force of a Law. The Great Charter hath been confirmed more than thirty Times, yet no one will infer from thence, that it was not a compleat Act in the firſt Inſtance. In Truth, the Confirmation of an Act did not add to its legal Efficacy, but, by bringing it more recently to Memory, under the Authority of the Legiſature, was thought to make the Dread of Non-Obſervance the greater.

In the Year-Book of Mayn. Ed. II. it muſt be confeſſed that an Objection is there made to the Expoſitions of the Statute of Glouceſter, becauſe they were not under the Great Seal. But this appears to have been an Objection obiter, and nothing was determined on that Point. If any Determination, however, had been made, reſpecting its Invalidity, yet, it would not have ſufficient Weight to overthrow ſubſequent Authorities.

With regard, however, to the principal Queſtion ariſing on this Act of 10 H. VI the Premiſſes on

which the Author of the Treatiſe above named reſteth his Argument, do not warrant his Concluſions. The Denial of Confirmation, ſ aith he, was equivalent to annulling or declaring it void. But this Inference by no Means follows. For an Act once valid [2], can only be made void, by an expreſs Repeal : And a bare Refuſal of Confirmation, only leaves the Act in the State wherein it ſtood before.

  1. The Reaſon of giving this Power, was that the Operation of the Act might be ſuſpended, in order to afford Opportunity of inducing the Pope, by perſuafive Means, to redreſs the Grievance of thoſe Exactions : And it appears by the Preamble to the Aft of the 25th, that the Pope had been actually made acquainted with the Contents of the former Act, and that gentle Means had been uſed to prevail on his Holineſs to reform the Abuſe complained of; which proving ineffectual, the King ratified the Act, in Purſuance of the special Power given to him by the Clauſe above recited. Note, The Act of the 23d is not printed in any of the Statute Books, but will be inſerted in the Appendix to this Edition.
  2. It is obſervable that this Writer does not attempt to impeach the Validity of this Act on any other Principle, than the Defect, as he conceives it, of the Sovereign Title : And to this it may be objected, that the very Diſtinction itſelf of a King de Facto and de Jure, is nugatory ; for every King in the actual Adminiſtration of Government, whoſe Authority is recognized by the other Branches of the Legiſlature, is a King de Jure. A parliamentary Settlement, doth unqueſtionably give as firm a Title to Sovereignty, as any hereditary Succeſion whatever : And the ſlaviſh Arguments urged by the Advocates of hereditary Succeſſion, tend to preclude Men from their natural and unalienable. Right of Reſiſtance againſt Tyranny, and Oppreſſion.
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