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. Dissimulavimus, &c. they ought to be buried in Oblivion; 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, saith 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.
- ↑ 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.
- ↑ 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 Succession 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.
