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the preparing of orders which are afterwards made public by proclamation and for other purposes, such as the summoning, proroguing, and dissolving of parliament, which when thus accomplished are the acts of the king or queen in council.

Their power.

2ndly. The privy council has power to inquire into all offences against the government, and to commit the offenders to safe custody for trial. But their jurisdiction herein is only to inquire, not to punish: and the persons committed by them are entitled to their habeas corpus by statute 16 Car. 1, c. 10, s. 8, as much as if committed by an ordinary justice of the peace(y). By this same statute, the court of starchamber, and the court of requests(z), both of which consisted of privy counsellors, were dissolved; and it was declared (a) illegal for them to take cognizance of any matter of property, belonging to the subjects of this kingdom.

From all the dominions of the crown, excepting Great Britain and Ireland, an appeal (either as of right or by leave obtained on petition) lies in the last resort to the sovereign in council, this appellate tribunal, or judicial committee of the privy council, being now constituted conformably to the requirements of the statute law(b) and exercising an authority derived immediately *therefrom. The judicial committee hear the allegations and proofs [* 276] adduced by the litigating parties, and make their report to the sovereign, by whom judgment in the case sub judice is finally given.

In regard to decisions of the ecclesiastical courts, except such as concern testamentary and matrimonial causes, to decisions of the admiralty and vice-admiralty courts, to orders of the Lord Chancellor in matters of lunacy or idiocy (c), being a special flower of the prerogative; with regard to these decisions and orders, although they may eventually involve questions of property, the privy council has cognizance, being the court of appeal in such cases; or rather, the appeal lies to the sovereign in council. Should also a question arise between two of our dependencies concerning the extent of their charters and the like, the sovereign in council exercises original jurisdiction therein, upon the principle of feudal sovereignty. And so likewise should any person claim an island or a province, in the nature of a feudal principality, by grant from the crown, the determination of that right belongs to the sovereign in council: as in the case of the earl of Derby with regard to the Isle of Man in the reign of queen Elizabeth, and the earl of Cardigan and others, as representatives of the duke of Montague, with relation to the island of St. Vincent in 1764. Further, upon the judicial committee of the privy council, has been imposed by statutory pro

(y) Darnel's Case and Note thereto, Broom's the privy council; all members of the privy Const. L. 162, 207.

(2) As to which see 4 Inst. c. 9. (a) S. 5.

(b) 3 & 4 Will. 4, c. 41; 6 & 7 Vict. c. 38, s. 1; 14 & 15 Vict. c. 83, s. 15; 5 Vict. c. 5, s. 24. For the hearing of lay as contra-distinguished from ecclesiastical appeals, the judicial committee of the privy council is composed of the president of the council, the lord chancellor, the lords justices and master of the rolls, the vice-chancellors, the chief justices of the courts of Queen's Bench and Common Pleas, the lord chief baron of the Exchequer, the judges of the probate court and of the high court of admiralty, being members of

council who have held any of the above offices; and two other privy counsellors appointed by the crown. Of these members three (exclusive of the lord president) are required to be present at the hearing of a cause. There may also be two Indian assessors appointed under 3 & 4 Will. 4, c. 41, s. 30.

As to the constitution of the judicial committee on the hearing of appeals in ecclesias tical cases, see 2 & 3 Will. 4, c. 92, s. 3; Cripp's Law of the Church, 4th ed. p. 45.

(c) 3 P. Wms. 108. Very few such appeals however, have been brought. Macpherson Priv. Coun. Pract. 222.

Privilege of

[*277]

visions the duty of adjudicating upon *applications for prolonging the term of patents for new inventions(d), and of making orders under the copyright acts in certain cases (e). Members of the privy council do not now enjoy any privilege except that of honorary precedence hereinafter noticed (f). Though formerly a special protection against attempts and conspiracies to destroy their lives Members. was extended to them by statute(g). The dissolution of the privy council depends upon the sovereign's pleasure; and he may, whenever he thinks proper, discharge any particular privy counsellor, or he may discharge the entire council, and appoint another. By the common law also this high council was dissolved ipso facto by the demise of the sovereign; 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.

How dissolved.

The duties of the
Sovereign.

* CHAPTER VI.

THE SOVEREIGN'S DUTIES.

[*278]

I PROCEED next to the duties incumbent on the sovereign 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 (a). And these reciprocal duties are what, I apprehend, were meant by the convention in 1688, when they declared king James had broken the original contract between king and people(b). 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 enquiring and scrupulous minds about the existence of such an original con

(d) Macph. Priv. Coun. Pract. chap. 18.
(e) 5 & 6 Vict. c. 45, s. 5.
(f) Post, chap. xii.

16, went further, and enacted that any person unlawfully attempting to kill, or unlaw fully assaulting and striking or wounding (9) By stat. 3 Hen. 7, c. 14, if any of the any privy counsellor in the execution of his king's servants of his household conspired office, should be guilty of felony. This statute or imagined to take away the life of a privy was made upon the daring attempt of the counsellor, it was felony, though nothing sieur Guiscard, who stabbed Mr. Harley, were done upon it. The reason of making afterwards earl of Oxford, with a penknife, this statute, sir Edward Coke tells us (when under examination for high crimes in Inst. 38), was because such a conspiracy had a committee of the privy council. Both of the just before been made by some of king above-mentioned statutes were repealed by Henry VII.'s household servants, and great the 9 Geo. 4, c. 31. mischief was like to have ensued thereupon. (a) 7 Rep. 5. This statute extended only to the king's (b) Ante, p. 248. menial servants. But the statute 9 Ann. c.

tract, they must now entirely cease with regard to every prince who has reigned since the year 1688.

cording to law.

The principal duty of the sovereign is to govern his people according to law.(77) Nec regibus infinita aut libera potestas, was the constitution of our To govern ac- German ancestors on the continent(c). And this is not only consonant to the principles of nature, of liberty, of reason, and of society, *but has always been esteemed an express part of the [ *279] common law of England, even when prerogative was at the highest. "The king," says Bracton (d), 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 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(e), "the king also hath a superior, namely God, and also the law, by which he was made a king." Thus Bracton: and Fortescue also(ƒ), 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 was expressly declared by statute 12 & 13 Wm. 3, 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 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."

(c) Tac. Germ. c. 7.

(d) L. 1, c. 8.

(e) L. 2, c. 16, s. 3.
(f) Cc. 9 & 34.

(77) The executive power of the United States government is vested in the president, who holds his office during the term of four years. U. S. Const. art. 2, § 1. At stated times he receives for his services a compensation which cannot be increased nor diminished during the period for which he was elected; and he cannot, within that period, receive any other emolument from the United States, or any of them. Ib. He is commander-in-chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States. lb. § 2. He may grant reprieves and pardons for offenses against the United States, except in case of impeachment. Ib. He has power, by and with the advice and consent of the senate, to make treaties, if two-thirds present concur; and by and with the advice and consent of the senate he appoints the principal judicial and other public officers of the government. He has power to fill vacancies in office which happen during the recess of the senate by granting commissions which expire at the end of the next session. Ib. It is his duty, from time to time, to give congress information of the state of the Union, and to recommend to their consideration such measures as he shall judge necessary and expedient. Ib. § 3. He may, on extraordinary occasions, convene both houses, or either of them. Ib. He also receives ambassadors and other public ministers; and is to take care that the laws be faithfully executed; and is required to commission all the officers of the United States. Ib. And he is liable to impeachment and removal from office. Ib. § 4.

As to the terms of the original contract between sovereign and people, these I apprehend to be now couched in the coronation oath, which by the The coronation statute 1 Wm. & M. st. 1, c. 6, is to be administered to

oath contains the terms of the original contract.

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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:

to

"The archbishop or bishop shall say, Will you solemnly promise and swear the people of this kingdom of England, and the dominions thereto govern belonging, according 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 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 profession of the gospel, and the protestant reformed religion established by 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. After this the king or queen, laying his or her hand upon the holy gospels, shall say, The things which I have here before promised I will perform and keep: So help me God: and then shall 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 ancient as the Mirror of Justices (g), and even as the time of Bracton(h): 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 ancient laws and constitutions at that time unknown(i). *However, in what form soever it be conceived, this is most indisputably a fundamental and [*281] 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 sovereign becomes the duty of the subject immediately on the descent of the crown, before he has taken the oath of allegiance, or if he should never take 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

(g) Cap. 1, § 2.

(h) L. 3, tr. 1, c. 9.

(i) "In the old folio abridgment of the statutes, printed by Lettou and Machlinia in the reign of Edward IV. (penes me)," observes sir W. Black stone (Commentaries, I. 235, 21st ed.), "there is preserved a copy of the old coronation oath; which, as the book is extremely scarce, I will here transcribe. Ceo est le serement que le roy jurre a soun coronement: que il gardera et meintenera lez droitez et lez franchisez de seynt esglise grauntez aunciement dez droitz roys christiens d'Engletere, et quil gardera toutez sez terrez, honoures et dignites droiturelx et franks del coron du roialme d'Engletere en tout maner dentierte sanz null maner damenusement, et lez droitez dispergez dilapidez ou perduz de la corone a

VOL. I.—24

soun poiair reappeller en launcien state, et
quil gardera le peas de seynt esglise et al
clergie et al people de bon accorde, et quil face
faire en toutez sez jugementez owel et droit
justice oue discretion et misericorde, et quil
grauntera a tenure lez leyes et custumez du
roialme, et a soun poiar lez face garder et
affirmer que lez gentez du people avont faitez
et esliez, et les malveys leyz et custumes de tout
oustera, et ferme peas et establie al people de
soun roialme en ceo garde esgardera a soun
poiair; come Dieu luy aide. (Tit. sacra
mentum regis, fol. m. ij.) Prynne has also
given us a copy of the coronation oaths of
Richard II. (Signal Loyalty, II. 246), Ed-
ward VI. (ibid. 251), James I., and Charles I.
(ibid. 269)."

sovereign'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 further remark:

I. That by the act of union with Scotland, 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, [*282] that every king at his accession 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.

II. That by the act of union with Ireland(), the continuance and preservation of the united church of England and Ireland as the established church of those kingdoms "shall be deemed and taken to be an essential and fundamental part of the union; and that in like manner the doctrine, worship, discipline, and government of the church of Scotland shall remain and be preserved as the same are now established by law and by the acts for the union of the two kingdoms of England and Scotland."

[* 283]

*CHAPTER VII.

THE ROYAL PREROGATIVES.

It was observed in a former chapter(a), that one of the principal bulwarks of civil liberty, or (in other words) of the British constitution, was the limitation of the sovereign'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, subsists between the prince and the subject. It will now be our business to consider this prerogative minutely; to demonstrate its necessity in general; and to mark out in the most important instances its particular extent and restrictions: from which considerations this conclusion will evidently follow, that the powers, which are vested in the crown by the laws of England, are necessary for the support of society; and do not trench any farther on our natural than is expedient for the maintenance of our civil liberties.

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 sovereign's prerogative. A topic, which 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 bona dea, was not suffered to be pried into by any [* 284] but such as were initiated in its service: because perhaps the exer(k) 1 Will. & M. sess. 2, c. 2; 12 & 13 Will. () Art. 5. 3, c. 2.

(a) Chap. i. p. 168.

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