Page images



I PROCEED next to the duties, incumbent on the king I 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 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 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 fcrupulous 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 poteslas, 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 always been efteemed an express part of the common law of England, even when prerogative was at the highest. “ The king,” faith Bracton", who wrote under Henry III, “ought not to be * 7 Rep. 5. b Tac. de mor. Germ. c. 7.

cl. 1. c. 8. “ subject

« subject to man, but to God, and to the law; for the last “ 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 d; " the king also hath a superior, namely God, and also the « law, by which he was made a king.” Thus Bracton : and Fortescue also o, having first well distinguished between a monarchy abfolutely 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 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: insomuch that he is bound by an oath at his co“ ronation 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 and 13 W. III. c. 2. “ that the laws of England are the birthright of “ the people thereof; and all the kings and queens who “ 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 re“ spectively according to the fame: and therefore all the laws « and statutes of this realm, for securing the established re“ ligion, 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,"

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 i W. & M. st. 1. c. 6. is to be administered to every king and queen, who shall fiicceed 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 : d l. 2. c. 16. §. 3.

6 c. 9. & 34.

« The

The archbishop or bishop shall say, Will you solemnly pro“ mise and swear to govern the people of this kingdom of “ England, and the dominions thereto belonging, according “ to the statutes in parliament agreed on, and the laws and « customs of the same ?The king or queen shall say, I so“ lemnly promise fo 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. “-Archbishop or bishop. Will you to the utmost of your “ power maintain the laws of God, the true profession of the “ gospel, and the protestant reformed religion established by “ the law? And will you preserve 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 “ shall appertain unto them, or any of them ?-King or queen. All this I promise to do.- Afier this the king or queen, laging his or her hand upon the holy gospels, mall say, “ The things which I have here before promised I will per“ form and keep: so help me God: and then fall kiss 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 justices', and even as the time of Bracłon 8 : but the wording of it was changed at the revolution, because (as the statute alleges) the oath itself had been framed in doubtful words and expressions, with relation to antient laws and constitutions at this time unknown". f cap. I. $. 2.

peiler en launcien estate, et quil gardera le & l. 3. Ir. 1.c.9.

peas de Seyne esglise et al clergie et al people h In the old folio abridgment of the de bon accorde, et quil face faire en toutez fatutes, printed by Lettou and Machli- fez jugementez owel et droit juftice cue nia in the reign of Edward IV, (penes discretion et misericorde, et quilgrauntira a 1.2) there is preserved a copy of the old tenure luz leyes et cuftmez du roialme, et a coronation oath ; which, as the book is foun poiar lcz face garder et affirmer que extremely scarce, I will here transcribe. lex gentez du people avent fairez et esliez, Ceo eft le serement que le roy jurre a jour et les malveys leyz et cuftumes de tout 04 Coronement : que il gardera ei meintenera sera, ci ferme peas ct establie al people de bez droit ez et lez francbifez de Leynt oglije fuun roialmc en cor garde esgardera a four grauntez auncienment diz druitez roy's priair : come Dieu luy aile. (Tit. facra. cbrifliens dEngletere, et quil gardera toutez mentum regis. fol. m. ij) Prynnc has sez terrez bonoures et dignites droiturelx also given us a copy of the coronation. et franks del coron du reialme dFngletere en oaths of Richard II, (Signal Loyalty. tout maner dentier te fanz null maner damc. II. 246.) Edward VI, (ilid. 251.) zusement, et lez droitez dispergez dilapidez James I, and Charles I. (ibid. 269.) ou perduz de la corone a four poiair reap

Howerer, However, in what form foever 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 it's 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 Scotland, the other of the parliament of England : which enact; the former, that every king at his accellion shall take and subscribe an oath, to preserve the protestant religion and presbyterian church government in Scotland; the latter, that at his coronation he' shall take and subscribe a similar oath, to preserve the settlement of the church of England within England, Ireland, Wales, and Berwick, and the territories thereunto belonging.



TT was observed in a former chapter a, that one of the

I principal bulwarks of civil liberty, or (in other words) of the British constitution, was the limitation of the king's prerogative by bounds so certain and notorious, that it is impossible he should ever exceed them, without the consent of the people, on the one hand; or without, on the other, a violation of that original contract, which in all states impliedly, and in ours most expressly, sublists between the prince and the subject. It will now be our business to consider this prerogative minutely; to demonstrate it's necessity in general; and to mark out in the most important instances it's particular extent and restrictions: from which considerations this conclusion will evidently follow, that the powers, which are rested in the crown by the laws of England, are necessary for the support of society; and do not intrench any farther on our natural liberties, than is expedient for the maintenance of our civil.

THERE cannot be a stronger proof of that genuine freedom, which is the boast of this age and country, than the power of discussing and examining, with decency and respect, the limits of the king's prerogative. A topic, that in some former ages was thought too delicate and sacred to be profaned by the pen of a subject. It was ranked among the arcana imperii : and, like the mysteries of the bena dea, was

a chap. 1. page 141.


« PreviousContinue »