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But, in order to prevent any perfons under foreign attach* ments from infinuating themselves into this important trust, as happened in the reign of king William in many inftances, it is enacted by the act of fettlement', that no perfon 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", which confifts of seven articles: 1. To advise the king according to the best of his cunning and difcretion. 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 fecret. 4. To avoid corruption. 5. To help and strengthen the execution of what fhall be there refolved. 6. To withstand all perfons who [231] would attempt the contrary. And lastly, in general, 7. To obferve, 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 cuftody, in order to take their trial in some of the courts of law. But their jurifdiction herein is only to inquire, and not to punish: and the perfons committed by them are entitled to their habeas corpus by ftatute 16 Car. I. c.10. as much as if committed by an ordinary justice of the peace. And, by the fame ftatute, the court of ftarchamber, and the court of requests, both of which confifted of privy counsellors, 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 arise out of the jurisdiction of this kingdom; and in matters of lunacy or idiocy", being a special flower of the prerogative; with regard to thefe, although they may eventually involve questions of extensive property,

Stat. 12 and 13 Will. III. c. 2.

20 Inft. 54.

n

3 P. Wms. 108.

the

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 (3). Whenever also a question arifes between two provinces in America or elfewhere, 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 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 reprefentatives 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 jurifdiction [232] (in the laft refort) is vefted in the fame tribunal; which usually exercises it's judicial authority 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. (4)

THE privileges of privy counsellors, as fuch, (abstracted from their honorary precedence °,) confist principally in the security which the law has given them against attempts and confpiracies to destroy their lives. For, by ftatute 3 Hen. VII. c.14. if any of the king's fervants, of his household, confpire or imagine to take away the life of a privy counsellor,

• See page 405.

(3) This is, in fact, a court of justice, which must consist of at leaft three privy counsellors.

(4) 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 Vef. 444. where the jurifdiction of the council and chancery, upon queftions arifing upon fubject-matter abroad, is largely difcuffed.

it is felony, though nothing be done upon it. The reason of making this statute, fir Edward Coke P tells us, was because fuch a conspiracy was, just before this parliament, made by fome of king Henry the feventh's household fervants, and great mischief was like to have enfued thereupon. This extends only to the king's menial fervants. But the statute 9. Ann. c. 16. goes farther, and enacts, that any person that shall unlawfully attempt to kill, or shall unlawfully affault, 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 fieur Guifcard, 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 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 facio by the king's demife; as deriving all it's 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 ftatute 6 Ann. c. 7. that the privy council fhall continue for fix months after the demife of the crown, unless sooner determined by the successor.

3 Infl. 38.

233

CHAPTER THE SIXTH.

OF THE KING's DUTIES.

PROCEED next to the duties incumbent 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 reciprocala. And these reciprocal duties are what, I apprehend, were meant by the convention in 1688, when they declared king James had broken the original contract between king and people. But however, as the terms of that original contract were in fome measure disputed, being alleged to exift principally in theory, and to be only deducible by reafon 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 expressly, and to reduce that contract to a plain certainty. So that whatever doubts might be forinerly raised by weak and fcrupulous minds about the existence of such an original contract, they must now entirely cease; especially 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. And this is not only confonant to the principles of nature, [234] of liberty, of reason, 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 Bractons, who wrote under Henry III., " ought not

27 Rep. 5.

Tac. de mor. Germ. c. 7.

el. I. c. 8.

" to

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

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also the law, by which he was made a king (1)." Thus Bracton and Fortefcue alfo, having firft well diftinguished between a monarchy abfolutely and defpotically regal, which is introduced by conqueft and violence, and a political or civil monarchy, which arises 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 ચંદ "the laws thereof: infomuch that he is bound by an oath "at his coronation to the obfervance 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 administer "the government of the fame according to the said 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 and liberties of the people thereof, "and all other laws and ftatutes of the fame now in force "are ratified and confirmed accordingly."

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(1) This is alfo well and ftrongly expreffed in the year-books: La ley eft le plus haute inheritance que le roy ad; car par la ley il méme et touts fes fujets font rulés, et file ley ne fuit, nul roi, et nul inheritance fera. 19 Hen. VI. 63.

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

VOL. I.

Y

AND,

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