Their duty.

But, in order to prevent any persons under foreign attachments from insinuating themselves into this important trust, as happened in the reign of King William, in many instances, it is enacted by the act of settlement (7), that no person born out of the dominions of the crown of England, unless born of English parents, even though naturalized by parliament, shall be capable of being of the privy council.

The duty of a privy counsellor appears from the oath of office (m), which consists of seven articles: 1. To advise the king according to the best of his cunning and discretion. 2. To advise for the king's honour and good of the public, without partiality through affection, love, meed, doubt, or dread. 3. To keep the king's counsel secret. 4. To avoid corruption. [231] 5. To help and strengthen the execution of what shall be

Their power.

there resolved. 6. To withstand all persons who would attempt. the contrary. And lastly, in general, 7. To observe, keep, and do, all that a good and true counsellor ought to do to his sovereign lord.

The power of the privy council is to inquire into all offences against the government, and to commit the offenders to safe custody, in order to take their trial in some of the courts of law. But their jurisdiction herein is only to inquire, and not to punish; and the persons committed by them are entitled to their habeas corpus by statute 16 Car. I. c. 10, as much as if committed by an ordinary justice of the peace. And by the same statute, the court of star-chamber, and the court of requests, both of which consisted of privy counsellors, were dissolved; and it was declared illegal for them to take cognizance of any matter of property belonging to the subjects of this kingdom. But in plantation or admiralty (6) causes, which

set forth in the said act. (See post, jesty in council, from the sentence of note to p. 368).

(6) By the statute of 3 & 4 Gul. IV. c. 41, for the better administration of justice in his majesty's privy council, certain members thereof are erected into a judicial committee; to which committee all appeals from vice-admiralty courts abroad, and all appeals which may be brought before his ma

any judge, are to be referred. And it is also enacted, that it shall be lawful for his majesty to refer to the said judicial committee for hearing or consideration any such other matters whatever, as his majesty shall think fit; and such committee shall thereupon hear or consider the same, and shall advise his majesty thereon.

arise out of the jurisdiction of this kingdom; and in matters of lunacy or idiocy (n), being a special flower of the prerogative; with regard to these, although they may eventually involve questions of extensive property, the privy council continues to have cognizance, being the court of appeal in such cases, or rather the appeal lies to the king's majesty himself in council (7). Whenever also a question arises between two provinces in America or elsewhere, as concerning the extent of their charters and the like, the king in his council exercises original jurisdiction therein, upon the principles of feodal sovereignty. And so, likewise, when any person claims an island or a province, in the nature of a feodal principality, by grant from the king, or his ancestors, the determination of that right belongs to his majesty in council: as was the case of the Earl of Derby, with regard to the Isle of Man, in the reign of Queen Elizabeth; and the Earl of Cardigan and others, as representatives of the Duke of Montague, with relation to the Island of St. Vincent, in 1764. But from all the dominions of the crown, excepting Great Britain and Ireland, an appellate jurisdiction *(in the last resort) is vested in the [ *232] same tribunal; which usually exercises its judicial authority Of its appellate in a committee of the whole privy council, who hear the allegations and proofs, and make their report to his majesty in council, by whom the judgment is finally given (8). The privileges of privy counsellors, as such, (abstracted from The privileges of their honorary precedence) (o), consist principally in the security which the law has given them against attempts and conspiracies to destroy their lives. For, by statute 3 Hen. VII. c. 14, if any of the king's servants of his household con-spire or imagine to take away the life of a privy counsellor, it (n) 3 P. Wms. 108. (0) See p. 405.

As many of the judges are, ex officio, named as members of this committee, and any, or all, the other judges may be directed to attend it, of course, care will be taken that no judge shall be summoned to "hear, consider, and advise upon" such matters as may subsequently be brought before his own court. (See ante, p. 229, n. 1).

(7) This is, in fact, a court of justice, which must consist of at least

three privy counsellors.-CH.

(8) The court of privy council cannot decree in personam in England, unless in certain criminal matters; and the court of chancery cannot decree in rem out of the kingdom. See Lord Hardwicke's arg. in Pen v. Baltimore, (1 Ves. 444), where the jurisdiction of the council and chancery, upon questions arising upon subject matter abroad, is largely discussed.-CH.

jurisdiction.

privy counsellors.

Dissolution of the privy council.

is felony, though nothing be done upon it. The reason of making this statute, Sir Edward Coke (p) tells us, was because such a conspiracy was, just before this parliament, made by some of King Henry the Seventh's household servants, and great mischief was like to have ensued thereupon. This extends only to the king's menial servants. But the statute 9 Ann. c. 16, goes farther, and enacts that any person that shall unlawfully attempt to kill, or shall unlawfully assault, and strike, or wound, any privy counsellor in the execution of his office, shall be a felon without benefit of clergy. This statute was made upon the daring attempt of the Sieur Guiscard, who stabbed Mr. Harley, afterwards Earl of Oxford, with a penknife, when under examination for high crimes, in a committee of the privy council.

The dissolution of the privy council depends upon the king's pleasure; and he may, whenever he thinks proper, discharge any particular member, or the whole of it, and appoint another. By the common law, also, it was dissolved ipso facto by the king's demise, as deriving all its authority from him. But now, to prevent the inconveniences of having no council in being at the accession of a new prince, it is enacted by statute 6 Ann. c. 7, that the privy council shall continue for six months after the demise of the crown, unless sooner determined by the successor.

(p) 3 Inst. 38.

CHAPTER VI.

OF THE KING'S DUTIES.

duties.

I PROCEED next to the duties incumbent on the king by of the king's our constitution; in consideration of which duties his dignity and prerogative are established by the laws of the land: it being a maxim in the law, that protection and subjection are reciprocal (a). And these reciprocal duties are what, I apprehend, were meant by the convention in 1688, when they declared that King James had broken the original contract (1) between king and people. But, however, as the terms of that original contract were in some measure disputed, being alleged to exist principally in theory, and to be only deducible by reason and the rules of natural law; in which deduction different understandings might very considerably differ; it was, after the revolution, judged proper to declare these duties expressly, and to reduce that contract to a plain certainty. So that, whatever doubts might be formerly raised by weak and scrupulous minds about the existence of such an original contract, they must now entirely cease; especially with regard to every prince who hath reigned since the year 1688.

The principal duty of the king is, to govern his people according to law (2). Nec regibus infinita aut libera potestas was the constitution of our German ancestors on the continent (b). And this is not only consonant to the principles of nature, of *liberty, of reason, and of society, but has always been esteemed an express part of the common law of England, even when prerogative was at the highest. "The king," saith Bracton (c), who wrote under Henry III., "ought not to be subject to man, but to God and to the law: for the law maketh (a) 7 Rep. 5.

(b) Tac. de Mor. Germ. c. 7.

(c) L. 1, c. 8.

[ *234 ]

(1) See ante, p. 211; post, p. 237.

(2) See ante, p. 67, n. 3.

VOL. I.

X

the king. Let the king therefore render to the law, what the law has invested in him with regard to others; dominion and power: for he is not truly king, where will and pleasure rules, and not the law." And again (d), "the king also hath a superior, namely God, and also the law, by which he was made a king (3)." Thus Bracton, and Fortescue also (e), having first well distinguished between a monarchy absolutely and despotically regal, which is introduced by conquest and violence, and a political or civil monarchy, which arises from mutual consent, (of which last species he asserts the government of England to be), immediately lays it down as a principle, that "the king of England must rule his people according to the decrees of the laws thereof: insomuch that he is bound by an oath at his coronation to the observance and keeping of his own laws." But, to obviate all doubts and difficulties concerning this matter, it is expressly declared by statute 12 & 13 Will. III. c. 2, "that the laws of England are the birthright of the people thereof: and all the kings and queens who shall ascend the throne of this realm ought to administer the government of the same according to the said laws; and all their officers and ministers ought to serve them respectively according to the same: and therefore all the laws and statutes of this realm, for securing the established religion, and the rights and liberties of the people thereof, and all other laws and statutes of the same now in force, are ratified and confirmed accordingly."

And, as to the terms of the original contract between king and people, these I apprehend to be now couched in the *coronation oath, which, by the statute 1 W. & M. st. 1, c. 6, is to be administered to every king and queen who shall succeed to the imperial crown of these realms, by one of the archbishops or bishops of the realm, in the presence of all the people; who on their parts do reciprocally take the oath of alle

(d) L. 2, c. 16, s. 3.

(3) This is also well and strongly expressed in the year-books: La ley est le plus haute inhéritance que le roy ad; car par la ley il même et touts ses sujets sont rulés, et si le ley ne fuit, nul roy, et nul inheritance sera. (19 Hen. VI. 63).

(e) C. 9 & 34.

In English: The law is the highest inheritance which the king has; for by the law he himself and all his subjects are governed; and if there were no law, there would be neither king nor inheritance. -CH.