whereof fifteen were to be the principal officers of state, and those to be counsellors, virtute officii; and the other fifteen were compofed of ten lords and five commoners of the king's choofing *. But fince that time the num-" ber has been much augmented, and now contiuues indefinite. At the fame time also, the ancient office of lord prefident of the council was revived in the person of Anthony Earl of Shaftsbury; an officer, that by the ftatute of 31 Hen. VIII. c. 10. has precedence next after the lord chancellor and lord treasurer.

Privy counsellors are made by the king's nomination, without either patent or grant; and, on taking the neceffary oaths, they become immediately privy counsellors during the life of the king that chooses them, but fubject to removal at his discretion.

As to the qualifications of members to fit at this board: Any natural born fubject of England is capable of being a member of the privy council; taking the proper oaths for fecurity of the government, and the test for security of the church. But, in order to prevent any perfons under foreign attachments from infinuating themfelves into this important truft, as happened in the reign of King William in many inftances, it is enacted by the act of fettlement, that no person born out of the dominions of the crown of England, unless born of English parents, even though naturalized by parliament, fhall be capable of being of the privy council.

The duty of a privy counsellor appears from the oath of officem, which confifts of feven articles: 1. To advife the king according to the best of his cunning and discretion. 2. To advife for the king's honour and good of the publick, without partiality through affection, love, meed, doubt, or dread. 3. To keep the king's counfel fecret. 4. To avoid corruption. 5. To help and ftrengthen the execution of what shall be there refolved. 6. To withstand all perfons who would attempt the contrary. And, laftly, in general, 7. To obferve, keep and do all that a good and true counsellor ought to do to his fovereign lord.

The power of the privy.council is to inquire into all offences against the government, and to cominit the offenders to fafe cuftody, in order to take their trial in fome 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 ftatute 16 Car. I. c. 10. as much as if committed by an ordinary juftice of the peace. And, by the fame ftatute, the court of Starchamber, and the court of Requests, both of which confifted of privy counfellors, were diffolved; 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 causes, which arife out of the jurifdiction of this kingdom; and in matters of lunacy or idiocya, being a fpecial flower of the prerogative; with regard to thefe, although they may eventually involve questions of extenfive 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. Whenever alfo a question arifes between two provinces in America or elsewhere, as concerning the extent of their charters and the like, the king in his council exercises original jurifdiction therein, upon the principles of feodal fovereignty. And fo likewife when any perfon 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 majefty in council: As was the cafe 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 Greatbritain and Ireland, an appellate jurifdi&ion (in the laft refort) is vefted in the fame tribunal; which ufually exercises its judicial authority in a committee of the whole privy council, who hear the allegations and proofs, and make their report to his majefty in council, by whom the judgment is finally given.

a 3 P. Wms. 108,

The

The privileges of privy counsellors, as fuch, (abftracted from their honorary precedence) confift principally in the fecurity which the law has given them against attempts and confpiracies to deftroy their lives. For, by ftatute 3 Hen. VII. c. 14. if any of the king's fervants, of his houfehold, confpire or imagine to take away the life of a privy counsellor, it is felony, though nothing be done upon it. The reafon of making this ftatute, Sir Edward Coke P tells us, was, becaufe fuch a confpiracy was, juft before this parliament, made by fome of king Henry VII's household fervants, and great mifchief was like to have enfued thereupon. This extends only to the king's menial fervants. But the ftatute g Ann. c. 16. goes farther, and enacts, that any perfon that fhall unlawfully attempt to kill, or fhall unlawfully af fault, and strike, or wound any privy counsellor, in the execution of his office, fhall be a felon without benefit

of clergy. This ftatute was made upon the daring attempt of the Sieur Guifcard, who ftabbed Mr. Harley, afterwards Earl of Oxford, with a penknife, when under examination for high crimes in a committee of the privy council.

The diffolution 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, alfo, it was diffolved ipfo fatto by the king's demife; as deriving alt its authority from him. But now, to prevent the inconveniences of having no council in being at the acceffion of a new prince, it is enacted by ftatute 6 Ann. c. 7. that the privy council fhall continue for fix months after the demise of the crown, unless fooner determined by the fucceffor.

.. See page 405.

P 3: Inft. 38.

CHAPTER

I

I PROCEED next to the duties incum

bent on the king by our conftitution: In confideration 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 fubjection are reciprocal. And thefe reciprocal duties are what, I apprehend, were meant by the convention in 1688, when they declared that King James had broken the original contract between king and people. But however, as the terms of that original contract were in fome measure difputed, being alleged to exift principally in theory, and to be only deducible by reason and the rules of natural law; in which deduction different understandings might very confiderably differ; it was, after the revolution, judged proper to declare thefe duties exprefsly, and to reduce that contract to a plain certainty. So that, whatever doubts might be formerly raifed by weak and fcrupulous minds about the exiftence of fuch an original contract, they must now entirely ceafe; efpecially with regard to every prince who hath reigned fince the year 1688.

The principal duty of the king is, to govern his people according to law, Nec regibus infinita aut libera poteftas, was the conftitution of our German ancestors on the continent b. And this is not only confonant to the principles of nature, of liberty, of reafon, and of fociety, but has always been efteemed an exprefs part of the common law of England, even when prerogative was at the higheft. "The king," faith Bracton, who wrote under Henry III," ought not to be fubject to man, "but to God, and to the law; for the law maketh 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

a 7 Rep. 5.

b Tac. de mor. Germ. c. 7.

c l. I. c. 8.

"where will and pleasure rules, and not the law." And again d: "The king alfo hath a fuperior, namely God,

and alfo the law, by which he was made a king.' Thus Bracton And Fortefcue alfo, having first well diftinguished between a monarchy abfolutely and defpotically regal, which is introduced by conqueft and violence, and a political or civil monarchy, which arifes from mutual confent; (of which laft fpecies he afferts 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: Infomuch 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 exprefsly declared by ftatute 12 & 13 W. III. c. 2. " that the laws of England are the birthright of the people thereof; and all the "kings and queens who fhall afcend the throne of this "realm ought to adminifter the government of the fame "according to the faid laws; and all their officers and "minifters ought to ferve them refpectively according "to the fame : And therefore all the laws and ftatutes "of this realm, for fecuring the established religion, "and the rights ard liberties of the people thereof, and "all other laws and ftatutes of the fame, now in force, "are ratified and confirmed accordingly."

66

And, as to the terms of the original contract between king and people, thefe I apprehend to be now couched in the coronation oath, which, by the ftatute 1 W. & M. ft. 1. c. 6. is to be adminiftered to every king and queen, who fhall fucceed to the imperial crown of these realms, by one of the archbishops or bishops of the realm, in the prefence of all the people; who, on their parts, do reciprocally take the oath of allegiance to the crown. This coronation oath is conceived in the following terms:

"The archbishop or bishop fhall fay, Will you folemn"ly promife and fwear to govern the people of this "kingdom of England, and the dominions thereto be

longing, according to the ftatutes in parliament agreed "on, and the laws and cuftoms of the fame ?-The king "or queen shall fay, I folemnly promife fo to do. "Archbishop

d L. 2. c. 16. §. 3.

e C. g.

34