231 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 idiocy", being a special flower of the prerogative; with regard to thefe, although they may eventually involve questions 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 arises between two provinces in America or elsewhere, as concerning the extent of their charters and the like, the king in his council exercifes original jurisdiction 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 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 vefted in the fame tribunal; which ufually 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 truft, as happened in the reign of king William in many instances, it is enacted by the act of fettlement", that no perfon born out of the dominions of the crown

m 3 P. Wms. 108.

Stat. 11 & 13 Will. III. c. z.

of

of England, unles born of English parents, even though naturalized by parliament, thall be capable of being or the privy council.

THE privileges of privy counsellors, as fuch, consist 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 reason of making this ftatute, íir 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 frike, 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 or the privy council.

THE dilution of the privy council depends upon the king's pleafure; and he may, whenever he thinks proper, difcharge any particular member, or the whole of it, and appoint another. By the common law alfo it was diffolved ipfo fuclo 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 ftatute 6 Ann. c. 7. that the privy council hall continue for fix months after the demife of the crown, unlefs fooner determined by the fucceffor.

CHAPTER

THE SIXTH.

OF THE

KING'S DUTIES.

I

PROCEED next to the duties, incumbent on the king by our conftitution; in confideration of which duties his dignity and prerogative arc eftablifhed 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 reaion 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 raised by weak and scrupulous 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 conflitution of our German anceftors on the continent. And this is not only confonant to the principles of nature, of liberty, of Ff reafon,

27 Rep. 5.

b Tac. de mer, Gerin. c. 7.

BOOK I. reason, and of society, but has always been esteemed 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 subject 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 invefted in him with re

66

gard to others; dominion, and power: for he is not truly king "where will and pleasure rules, and not the law." And again '; "the king alio hat! fuperior, namely God, and alfo the law,

by which he was made a king." Thus Bracton: and Fortefcue alfo, having firft well diftinguished between a monarchy absolutely 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 statute 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 shall afcend the throne "of this realm ought to administer the government of the fame "according to 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 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 confent 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

cl. 1. c. 8.

dl 2. L. 16. §. 3.

• c. 9 & 34.

I

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 swear 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? The king and queen fball fay, I folemnly promise so to do.

હૃદ

"Archbishop or bishop. Will you to your power cause 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 gofpel, " 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 fuch 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 fhall 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 revolution, because (as the ftatute alleges) the oath itself had been framed

Ff 2

f cap. 1. §. 2.

gl. 3. tr. 1. c. §