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though nothing be done upon it. The reason of making this statute, sir Edward Cokep 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 facio 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 THE SIXTH.

OF THE KING'S DUTIES.

I PROCEED next to the duties, incumbent on the king by 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 reciprocala. 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 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. 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 [234] always been esteemed an express part of the common law of England, even when prerogative was at the highest. “ The king,” saith Bracton“, who wrote under Henry III, * ought not to be subject to man, but to God, and to the law;

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

cl. 1. e. 8

a 7 Rep. 5. VOL. I.

40

“ for the law maketh the king. Let the king therefore ren“ der 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 (1).” 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 W. III. c. 2. that “the laws of England are the birthright “ of the people thereof; and all the kings and queens who 6 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.”

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(1) 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 roi, et nul inheritance sera. 19 Hen. VI. 63.

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.

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. [235] 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 allegiance to the crown. This coronation oath is conceived in the following terms :

The archbishop or bishop shall say, Will you solemnly “ promise and swear to govern the people of this kingdom “ of England, and the dominions thereto belonging, accord“ ing to the statutes in parliament agreed on, and the laws « and customs of the same? The king or queen shall say, I « solemnly promise so to do. Archbishop or bishop. Will you “ to your power cause law and justice, in mercy, to be exe“ cuted in all your judgments ? King or queen. I will. Arch6 bishop or bishop. Will you to the utmost of your power “ maintain the laws of God, the true profession of the gos

pel, and the protestant reformed religion established by the “ law? And will you preserve unto the bishops and clergy t of this realm, and to the churches committed to their u charge, all such rights and privileges as by law do or shall « 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 gospels, shall say, The things a which I have here before promised I will perform and “ keep: so help me God: and then shall kiss the book (2).”

(2) And it is required both by the bill of rights, 1 W. & M. st. 2. c. 2. and the act of settlement 12 & 13 W. III. c. 2. that every king and queen of the age of twelve years, either at their coronation, or on the first day of the first parliament upon the throne in the house of peers, (which shall first happen,) shall repeat and subscribe the declaration against popery according to the 30 Car. II. st. 2. c. 1.

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 ancient as the mirror of justices', and even as the time of Bracton8: but the wording of it was changed

at the revolution, because (as the statute alleges) the [236] oath itself had been framed in doubtful words and

expressions, with relation to ancient laws and constitutions at this time unknownh. However, in what form soever it be conceived, this is most indisputably a fundamental and original express contract; though doubtless the duty of protection is impliedly as much incumbent on the sovereign before coronation as after: in the same manner as allegiance to the king becomes the duty of the subject immediately on the descent of the crown, before he has taken the oath of allegiance, or whether he ever takes it at all. This reciprocal duty of the subject will be considered in its proper place. At present we are only to observe, that in the king's part of this original contract are expressed all the duties that a monarch can owe to his people : viz. to govern according to law; to execute judgment in mercy, and to maintain the established religion. And, with respect to the latter of these three branches, we may farther remark, that by the act of union, 5 Ann. c. 8. two preceding statutes are recited and confirmed; the one of the parliament of

f cap. 1. sec. 2.

corone a soun poiair reappeller en launcien 1. 3. tr. 1. c. 9.

estate, et quil gardera le peas de seynt esglise h In the old folio abridgment of the sta. et al clergie et al people de bon accorde, et tutes, printed by Lettou and Machlinia in quil face faire en toutez sez jugementez owel the reign of Edward IV, (penes me) there is et droit justice oue discretion et misericorde, preserved a copy of the old coronation-oath ; et quil grauntera a tenure lez leyes et custuwhich, as the book is extremely scarce, I mez du roialme, et a soun poiair lez face garwill bere uanscribe. Ceo est le serement der et affirmer, que lez gentez du people que le roy jurre a soun coronement: que avont faitez et estiez, et les malveys leyz et gardera et meintenera lez droitez et lez fran. custumes de tout oustera, et ferme peas et chisez de seynt esglise grauntez auncien- establie al people de soun roialme en ceo ment dez droitez roys christiens dEngletere, garde esgardera a soun poiair; come Dieu luy et quil gardera toutez sez terraz honoures aide. (Tit. sacramentum regis. fol. m. ij.) et dignites droiturelx et franks del coron du Prynne has also given us a copy of the coro roialme dEngletere en tout maner dentier nation-oaths of Richard II, (Signal Loyalty. te sanz null maner damenusement, et lez II. 246.) Edward VI, (ibid, 251.) Janes I, droitez dispergez dilapidez ou perduz de la and Charles 1, (ibid, 269.)

il

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