CHAPTER THE SIXTH. OF THE KING's DUTIES. PROCEED next to the duties, incumbent on the king our conftitution; in confideration of which duties his dignity and prerogative are cftablished 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 fome measure difputed, 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 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 existence of fuch an original contract, they must now entirely ceafe; efpecially 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, of liberty, of reason, and of fociety, 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 a 7 Rep. 5. b Tac. de mor. Germ. c. 7. c l. 1. c. 8. 66 fubjec "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 invefted 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 a; "the king alfo hath a fuperior, namely God, and also the "law, by which he was made a king." Thus Bracton: and Fortefcue 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 "muft rule his people according to the decrees of the laws "thereof: infomuch 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 exprefsly declared by ftatute 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 "fhall afcend the throne of this realm ought to administer "the government of the fame according to the faid laws; "and all their officers and minifters ought to ferve them re"fpectively according to the fame: and therefore all the laws "and ftatutes of this realm, for fecuring the established re"ligion, 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." 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. ft. 1. c. 6. is to be administered to every king and queen, who fhall fuc ceed to the imperial crown of thefe 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: ₫ 1. 2. c. 16. §. 3. • c. 9.34. “The 235 "The archbishop or bishop fhall fay, Will you folemnly pro"mife 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 "customs of the fame ?-The king or queen fhall fay, I so"lemnly 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. "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 (6 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 promife to do. After this the king or "queen, laying his or her hand upon the holy gofpels, fhall fay, "The things which I have here before promifed I will per"form and keep: fo help me God: and then shall kifs the book." .- THIS is the form of the coronation oath, as it is now prefcribed 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 in doubtful words and expreffions, with relation to antient laws and conftitutions at this time unknown ". 8 l. 3. tr. 1. c. 9. h In the old folio abridgment of the ftatutes, printed by Lettou and Machlinia in the reign of Edward IV, (penes :) there is preferved a copy of the old coronation oath; which, as the book is extremely scarce, I will here transcribe. Ceo eft le ferement que le roy jurre a fun toronement: que il gardera et meintenera lex droitez et lex franchifez de feynt efglife grauntez aunciement dez droitez roys chriftiens dEngletere, et quil gardera toutez fez terrez bonoures et dignites droiturelx et franks del coron du roialme dFngletere en tout maner dentier te fanz null maner damenufement, et lex droitez difpergez dilapidez ou perdux de la corone a foun poiair reap I peller en launcien eftate, et quil gardera le peas de feynt efglife et al clergie et al people de bon accorde, et quil face faire en toutez fez jugementez owel et droit jufiice oue difcretion et mifericorde, et quil grauntera a tenure lez leyes et cuftumez du roialme, et a foun polar lez face garder et affirmer que lez gentez du people avent faitez et eflicz, et les malveys leyz et cuftumes de tout ou flera, et ferme peas et establie al people de foun roialme en ceo garde efgardera a foun polair: come Dieu luy aide. (Tit. facra. mentum regis. fol. m. ij) Prynne has alfo given us a copy of the coronation. oaths of Richard II, (Signal Loyalty. II. 246.) Edward VI, (ibid. 251.) James I, and Charles I. (ibid. 269.) However, However, in what form foever it be conceived, this is most indisputably a fundamental and original exprefs contract; though doubtlefs the duty of protection is impliedly as much incumbent on the fovereign before coronation as after: in the fame manner as allegiance to the king becomes the duty of the fubject 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 fubject will be confidered in it's proper place. At prefent we are only to obferve, that in the king's part of this original contract are expreffed 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 ftatutes are recited and confirmed; the one of the parliament of Scotland, the other of the parliament of Eng-. land: which enact; the former, that every king at his acceffion fhall take and fubfcribe an oath, to preferve the proteftant religion and prefbyterian church government in Scotland; the latter, that at his coronation he' fhall take and fubfcribe a fimilar oath, to preserve the fettlement of the church of England within England, Ireland, Wales, and Berwick, and the territories thereunto belonging. CHAPTER THE SEVENTH. OF THE KING's PREROGATIVE. T was obferved in a former chapter 2, that one of the principal bulwarks of civil liberty, or (in other words) of the British conftitution, was the limitation of the king's prerogative by bounds fo certain and notorious, that it is impoffible he fhould ever exceed them, without the confent of the people, on the one hand; or without, on the other, a violation of that original contract, which in all flates impliedly, and in ours moft exprefsly, fubfifts between the prince and the fubject. It will now be our bufinefs to confider this prerogative minutely; to demonftrate it's neceffity in general; and to mark out in the most important inftances it's particular extent and reftrictions: from which confiderations this conclufion will evidently follow, that the powers, which are vefted in the crown by the laws of England, are neceffary for the support of fociety; 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 boaft of this age and country, than the power of difcuffing and examining, with decency and refpc&, the limits of the king's prerogative. A topic, that in fome former ages was thought too delicate and facred to be profaned by the pen of a fubject. It was ranked among the arcana imperii: and, like the myfteries of the bona dea, was a chap. I. page 141. not |