§ The following Protest was entered on the Journals:
§ Dissentient,
§ 1st. Because it was acknowledged in debate, that in the correspondence moved for, his majesty's secretary of state refused permission to certain justices of the peace for the county of Berks "to visit the state prisoners confined in the gaol of Reading, to ask questions of them, or to enter into conversation with them;" and it is expressly enacted in the fifth section of an act of the 31st of the present king, intituled, "an act for the better regulating of county gaols and other places of confinement," 'that certain justices of the peace appointed by the general or quarter sessions shall (either together or singly) personally visit and inspect both the common gaols and other the houses of correction or other places of confinement, at least three times in each quarter of the year, and oftener, if occasion shall require, and shall examine into the state of the buildings, and the behaviour and conduct of the respective officers, and the treatment and condition of the prisoners; and furthermore shall at any general or quarter sessions make a report in writing of the state and condition of the same, and of all abuses which may occur to their obser- 879 vation; and the chairman of the said sessions is hereby required to call upon the said visitors for such report;" it moreover in the same section expressly declared, that it shall be lawful for every justice of the peace for such county, riding, or division of his own accord, and without being appointed a visitor, to enter into and examine the same at such time or times, and as often as he shall think fit, and if he shall discover any abuses therein, he is required to report them in writing at the next general or quarter sessions of the peace."
§ We could not reconcile it to our duty to reject all further inquiry into the violation of a statute neither obsolete nor ambiguous, and when we adverted to the quarter from whence such disobedience to the law had originated, we deemed ourselves called upon to protect one of the most essential rights of the people, vindicated at the revolution of 1688, and asserted in the act of the first of William and Mary, namely,
- 1. "That the pretended power of suspending laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.
- 2. "That the pretended power of dispensing with the laws, or the execution of laws, by regal authority, as it hath been assumed and exercised of late, is illegal."
§ Secondly, Because the argument urged in debate, that the prerogative of the Crown extends to the regulation of all his majesty's gaols, and that consequently no act of parliament relating to them can, without reciting the previous consent of the Crown, be imperative against the mandates of a secretary of state, appears to us unfounded in principle, inconclusive In its application, and highly dangerous in its consequences.
§ A prerogative, however undisputed, cannot, we presume, counteract the force of an act of parliament, sanctioned by the three branches of the legislature, and consequently consented to by the crown.
§ The justices authorized by the 31st of the king to visit the common gaols of their respective counties, do not, by complying with the act, alter any regulations made by his majesty; they act under his commission; they are removable at his will, and they are permitted, and in some cases required, to enforce the regulations for gaols, issuing either from the Crown in virtue of its prerogative, or from any 880 other lawful authority. The provisions, therefore, of the 31st of the king, cannot interfere with the prerogative of the Crown to whatever extent that prerogative may be supposed to exist.
§ If the claim of unlimited prerogative is to be set up in all institutions, which, in the language of the law, belong to the king, and if the laws of the land, after passing the two Houses of parliament, and receiving the royal assent, have no power to limit that prerogative, then in all things relating to the army, the navy, and the courts of justice, the dispensing power, which our ancestors struggled to extinguish, is revived, and the securities devised for our property, our liberties, and our lives by the wisdom of parliament exist only at the mercy of the advisers of the Crown—a system which would substitute arbitrary will for positive law, convert parliament itself into a useless appendage of a court, and our free constitution into an absolute government dependent on the caprice of a monarch and his advisers.
§ Thirdly, Because the law does not enact, nor does reason require any difference of treatment between state prisoners and other prisoners committed to a common gaol; and should the exigencies of the state require such difference to be made, the secretary of state has it in his power to commit in the first instance, or afterwards to convey such prisoners to fortresses and other places of confinement more immediately under the direction of the advisers of the Crown, and not, as we apprehend, included in the provisions of the 31st of the king.
§ Fourthly, Because no practice previous to the passing of the act, and none subsequent to it (if any such were pretended), can justify his majesty's secretary of state in departing so entirely from its spirit and its letter, as to prevent the magistrates from executing duties plainly enjoined, and from exerting powers without any reserve or exception conferred upon them by an act of parliament, clear in its construction and consistent in its provisions; and when this branch of the legislature has so recently been called upon to concur in the temporary suspension of the most valuable laws of the land, we felt it more imperiously our bounden duty to watch over the statutes which are still permitted to exist, and to enforce an obedience to the remaining laws in those who are entrusted with the execution of them, and 881 already invested with powers so extraordinary, and so liable to abuse.
§ ROSSLYN.
§ LAUDERDALE.
§ MONIFORT.
§ VASSAL HOLLAND.