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fifted 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 arife out of the jurifdiction of this kingdom; and in matters of lunacy and idiocyTM, being a special flower of the prerogative; with regard to thefe, although they may eventually involve queftions of extensive property, the privy council continues to have cognizance, being the court of appeal in fuch causes: 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 exercifes original jurifdiction therein, upon the principles of feodal fovereignty. And fo likewife 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 cafe of the carl of Derby with regard to the isle of Man in the reign of queen Elizabeth, and of 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 (in the laft refort) is vested 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 majefty in council, by whom the judgment is finally given.
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 teft for fecurity of the church. But, in order to prevent any perfons under foreign attachments 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
m 3 P. Wms. 108.
a Stat. 11 & 13 Will. III. c. 2.
of England, unless born of English parents, even though naturalized by parliament, fhall be capable of being or the privy council.
THE privileges of privy counsellors, as fuch, confift principally in the fecurity which the law has given them against attempts and confpiracies to deftroy their lives. For, by statute 3 Hen. VII. c. 14. it any of the king's fervants, of his houfhold, confpire or imagine to take away the life of a privy counsellor, it is felony, though nothing be done upon it. And the reafon of making this ftatute, fir Edward Coke tells us, was because fuch fervants have greater and readier means, cither by night or by day, to deftroy fuch as be of great authority, and near about the king, and fuch a confpiracy was, juft before this parliament, made by fome of king Henry the feventh's houfhold fervants, and great mifchief was like to have enfued thercupon. This extends only to the king's menial fervants. But the ftatute o Ann. c. 16. gues farther, and enacts, that any persons that shall unlawfully attempt to kill, or fhail unlawfully affault, and itrike, or wound, any privy counsellor in the execution of his office, fhall be felons, and fuffer death as fuch. This ftatute was made upon the daring attempt of the ficur 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 dilution 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 faco 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 acceffion of a new prince, it is enacted by itatute 6 Ann. c. 7. that the privy council hall continue for fix months after the demife of the crown, unless fooner determined by the fucceflor.
27 Rep. 5.
THE SIXT H.
PROCEED next to the duties, incumbent on the king by our constitution; 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 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 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 these duties exprefsly, and to reduce that contract to a plain certainty. So that, whatever doubts might be formerly raised by weak and fcrupulous minds about the exiftence of fuch an original contract, they must now entirely ceafe; 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 anceftors on the continent. And this is not only confonant to the principles of nature, of liberty, of Ff
b Tac. de mer. Germ. c. 7.
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 re"gard to others; dominion, and power: for he is not truly king "where will and pleafure rules, and not the law." And again"; "the king alio hat! a fuperior, namely God, and alfo the law,
by which he was made a king." Thus Bracton: and Fortescue alfo, having first well distinguished 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 de"crecs of 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 there"of; and all the kings and queens who fhall afcend the throne "of this realm ought to adminifter the government of the fame "according to faid laws; and all their officers and minifters "ought to ferve them respectively 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 by his majesty, by and with the advice and consent of the "lords fpiritual and temporal and commons, and by authority of "the fame, 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 corona
tion oath, which by the statute 1 W. & M. ft. 1. c. 6. is to be adminiftred 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 folemnly promife " and fwear to govern the people of this kingdom of England, "and the dominions thereto belonging, according to the ftatutes. "in parliament agreed on, and the laws and cuftoms of the fame? ཝ The king and queen fball fay, I folemnly promise so to do.
"Archbishop or bishop. Will you to your power caufe law and "justice, in mercy, to be executed in all your judgments ?—— "King or queen. I will.
Archbishop or bishop. Will you to the utmost of your power maintain the laws of God, the true profeffion of the gospel, "and the proteftant reformed religion established by the law? "And will you preferve unto the bishops and clergy of this realm, "and to the churches committed to their charge, all such rights "and privileges as by law do or fhall appertain unto them, or "any of them?—King or queen. All this I promise to do.
After this the king or queen, laying his or her hand upon the "holy gofpels, fball fay, The things which I have here before "promised I will perform and keep: fo help me God. And " then shall kifs the book."
THIS is the form of the coronation oath, as it is now prescribed by our laws; the principal articles of which appear to be at least as antient as the mirror of juftices, and even as the time of Bracton, but the wording of it was changed at the revolu tion, because (as the ftatute alleges) the oath itself had been. Ff2
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