immediate line of succession, are little farther regarded by the laws,
than to give them precedence before all peers and public officers as
well ecclesiastical as temporal. This is done by the statute 31 Hen.
VIII. c. 10. which enacts that no person, except the king's children,
shall presume to sit or have place at the side of the cloth of estate
in the parliament chamber; and that certain great officers therein
named shall have precedence above all dukes, except only such as shall
happen to be the king's son, brother, uncle, nephew (which sir Edward
Coke[e] explains to signify grandson or _nepos_) or brother's or
sister's son. And in 1718, upon a question referred to all the judges
by king George I, it was resolved by the opinion of ten against the
other two, that the education and care of all the king's
grandchildren while minors, and the care and approbation of their
marriages, when grown up, did belong of right to his majesty as king
of this realm, during their father's life[f]. And this may suffice for
the notice, taken by law, of his majesty's royal family.
[Footnote e: 4 Inst. 362.]
[Footnote f: Fortesc. Al. 401-440.]
CHAPTER THE FIFTH.
OF THE COUNCILS BELONGING TO THE KING.
THE third point of view, in which we are to consider the king, is with
regard to his councils. For, in order to assist him in the discharge
of his duties, the maintenance of his dignity, and the exertion of his
prerogative, the law hath assigned him a diversity of councils to
advise with.
1. THE first of these is the high court of parliament, whereof we have
already treated at large.
2. SECONDLY, the peers of the realm are by their birth hereditary
counsellors of the crown, and may be called together by the king to
impart their advice in all matters of importance to the realm, either
in time of parliament, or, which hath been their principal use, when
there is no parliament in being[a]. Accordingly Bracton[b], speaking
of the nobility of his time, says they might properly be called
"_consules, a consulendo; reges enim tales sibi associant ad
consulendum_." And in our law books[c] it is laid down, that peers are
created for two reasons; 1. _Ad consulendum_, 2. _Ad defendendum
regem_: for which reasons the law gives them certain great and high
privileges; such as freedom from arrests, &c, even when no parliament
is sitting: because the law intends, that they are always assisting
the king with their counsel for the commonwealth; or keeping the realm
in safety by their prowess and valour.
[Footnote a: Co. Litt. 110.]
[Footnote b: _l._ 1. _c._ 8.]
[Footnote c: 7 Rep. 34. 9 Rep. 49. 12 Rep. 96.]
INSTANCES of conventions of the peers, to advise the king, have been
in former times very frequent; though now fallen into disuse, by
reason of the more regular meetings of parliament. Sir Edward Coke[d]
gives us an extract of a record, 5 Hen. IV, concerning an exchange of
lands between the king and the earl of Northumberland, wherein the
value of each was agreed to be settled by advice of parliament (if any
should be called before the feast of St Lucia) or otherwise by advice
of the grand council (of peers) which the king promises to assemble
before the said feast, in case no parliament shall be called. Many
other instances of this kind of meeting are to be found under our
antient kings: though the formal method of convoking them had been so
long left off, that when king Charles I in 1640 issued out writs under
the great seal to call a great council of all the peers of England to
meet and attend his majesty at York, previous to the meeting of the
long parliament, the earl of Clarendon[e] mentions it as a new
invention, not before heard of; that is, as he explains himself, so
old, that it had not been practiced in some hundreds of years. But,
though there had not so long before been an instance, nor has there
been any since, of assembling them in so solemn a manner, yet, in
cases of emergency, our princes have at several times thought proper
to call for and consult as many of the nobility as could easily be got
together: as was particularly the case with king James the second,
after the landing of the prince of Orange; and with the prince of
Orange himself, before he called that convention parliament, which
afterwards called him to the throne.
[Footnote d: 1 Inst. 110.]
[Footnote e: Hist. b. 2.]
BESIDES this general meeting, it is usually looked upon to be the
right of each particular peer of the realm, to demand an audience of
the king, and to lay before him, with decency and respect, such
matters as he shall judge of importance to the public weal. And
therefore, in the reign of Edward II, it was made an article of
impeachment in parliament against the two Hugh Spencers, father and
son, for which they were banished the kingdom, "that they by their
evil covin would not suffer the great men of the realm, the king's
good counsellors, to speak with the king, or to come near him; but
only in the presence and hearing of the said Hugh the father and Hugh
the son, or one of them, and at their will, and according to such
things as pleased them[f]."
[Footnote f: 4 Inst. 53.]
3. A THIRD council belonging the king, are, according to sir Edward
Coke[g], his judges of the courts of law, for law matters. And this
appears frequently in our statutes, particularly 14 Ed. III. c. 5. and
in other books of law. So that when the king's council is mentioned
generally, it must be defined, particularized, and understood,
_secundum subjectam materiam_; and, if the subject be of a legal
nature, then by the king's council is understood his council for
matters of law; namely, his judges. Therefore when by statute 16 Ric.
II. c. 5. it was made a high offence to import into this kingdom any
papal bulles, or other processes from Rome; and it was enacted, that
the offenders should be attached by their bodies, and brought before
the king and his _council_ to answer for such offence; here, by the
expression of king's _council_, were understood the king's judges of
his courts of justice, the subject matter being legal: this being the
general way of interpreting the word, _council_[h].
[Footnote g: 1 Inst. 110.]
[Footnote h: 3 Inst. 125.]
4. BUT the principal council belonging to the king is his privy
council, which is generally called, by way of eminence, _the council_.
And this, according to sir Edward Coke's description of it[i], is a
noble, honorable, and reverend assembly, of the king and such as he
wills to be of his privy council, in the king's court or palace. The
king's will is the sole constituent of a privy counsellor; and this
also regulates their number, which of antient time was twelve or
thereabouts. Afterwards it increased to so large a number, that it was
found inconvenient for secresy and dispatch; and therefore king
Charles the second in 1679 limited it to thirty: whereof fifteen were
to be the principal officers of state, and those to be counsellors,
_virtute officii_; and the other fifteen were composed of ten lords
and five commoners of the king's choosing[k]. But since that time the
number has been much augmented, and now continues indefinite. At the
same time also, the antient office of lord president of the council
was revived in the person of Anthony earl of Shaftsbury; an officer,
that by the statute of 31 Hen. VIII. c. 10. has precedence next after
the lord chancellor and lord treasurer.
[Footnote i: 4 Inst. 53.]
[Footnote k: Temple's Mem. part 3.]
PRIVY counsellors are _made_ by the king's nomination, without either
patent or grant; and, on taking the necessary oaths, they become
immediately privy counsellors during the life of the king that chooses
them, but subject to removal at his discretion.
THE _duty_ of a privy counsellor appears from the oath of office[l],
which consists of seven articles: 1. To advise the king according to
the best of his cunning and discretion. 2. To advise for the king's
honour and good of the public, without partiality through affection,
love, meed, doubt, or dread. 3. To keep the king's counsel secret. 4.
To avoid corruption. 5. To help and strengthen the execution of what
shall be there resolved. 6. To withstand all persons who would attempt
the contrary. And, lastly, in general, 7. To observe, keep, and do all
that a good and true counsellor ought to do to his sovereign lord.
[Footnote l: 4 Inst. 54.]
THE _power_ of the privy council is to enquire into all offences
against the government, and to commit the offenders into custody, in
order to take their trial in some of the courts of law. But their
jurisdiction is only to enquire, and not to punish: and the persons
committed by them are entitled to their _habeas corpus_ by statute 16
Car. I. c. 10. as much as if committed by an ordinary justice of the
peace. And, by the same statute, the court of starchamber, and the
court of requests, both of which consisted of privy counsellors, were
dissolved; 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 arise out of the
jurisdiction of this kingdom, and in matters of lunacy and ideocy
(being a special flower of the prerogative) with regard to these,
although they may eventually involve questions of extensive property,
the privy council continues to have cognizance, being the court of
appeal in such causes: or, rather, the appeal lies to the king's
majesty himself, assisted by his privy council.
AS to the _qualifications_ of members to sit this board: any natural
born subject of England is capable of being a member of the privy
council; taking the proper oaths for security of the government, and
the test for security of the church. But, in order to prevent any
persons under foreign attachments from insinuating themselves into
this important trust, as happened in the reign of king William in many
instances, it is enacted by the act of settlement[m], that no person
born out of the dominions of the crown of England, unless born of
English parents, even though naturalized by parliament, shall be
capable of being of the privy council.
[Footnote m: Stat. 12. & 13 W. III. c. 2.]
THE _privileges_ of privy counsellors, as such, consist principally in
the security which the law has given them against attempts and
conspiracies to destroy their lives. For, by statute 3 Hen. VII. c.
14. if any of the king's servants of his houshold, conspire 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 statute, sir
Edward Coke[n] tells us, was because such servants have greater and
readier means, either by night or by day, to destroy such as be of
great authority, and near about the king: and such a conspiracy was,
just before this parliament, made by some of king Henry the seventh's
houshold 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 persons_
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 felons, and suffer death as such. 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.
[Footnote n: 3 Inst. 38.]
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 facto_ by the king's demise; as
deriving all it's 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.
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 reciprocal[a]. 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 has reigned since the year 1688.
[Footnote a: 7 Rep. 5.]
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 always been esteemed an express part of the common
law of England, even when prerogative was at the highest. "The king,"
saith Bracton[c], 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[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[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 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 by his majesty, by and with the
advice and consent of the lords spiritual and temporal and commons,
and by authority of the same, ratified and confirmed accordingly."
[Footnote b: _Tac. de M.G._ _c._ 7.]
[Footnote c: _l._ 1. _c._ 8.]
[Footnote d: _l._ 2. _c._ 16. Sec. 3.]
[Footnote e: _c._ 9. & 34.]
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. st. 1. c. 6. is to be administred 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, 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 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.
"_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
antient as the mirror of justices[f], and even as the time of
Bracton[g]: 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[h]. 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 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.
[Footnote f: _cap._ 1. Sec. 2.]
[Footnote g: _l._ 3. _tr._ 1. _c._ 9.]
[Footnote h: In the old folio abridgment of the statutes, printed by
Lettou and Machlinia in the reign of Edward IV, (_penes me_) 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 auncienment dez droitez
roys christiens dEngletere, et quil gardera toutez sez terrez honoures
et dignitees droiturelx et franks del coron du roialme dEngletere en
tout maner dentierte sanz null maner damenusement, et lez droitez
dispergez dilapidez ou perduz de la corone a soun poiair reappeller en
launcien estate, 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 discrecion et misericorde, et
quil grauntera a tenure lez leyes et custumez du roialme, et a soun
poiair lez face garder et affermer 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. sacramentum regis.
fol. m. ij._]
CHAPTER THE SEVENTH.
OF THE KING'S PREROGATIVE.
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 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, subsists 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 vested 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_.
[Footnote a: chap. 1. page 137.]
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
_bona dea_, was not suffered to be pried into by any but such as were
initiated in it's service: because perhaps the exertion of the one,
like the solemnities of the other, would not bear the inspexion of a
rational and sober enquiry. The glorious queen Elizabeth herself made
no scruple to direct her parliaments to abstain from discoursing of
matters of state[b]; and it was the constant language of this favorite
princess and her ministers, that even that august assembly "ought not
to deal, to judge, or to meddle, with her majesty's prerogative
royal[c]." And her successor, king James the first, who had imbibed
high notions of the divinity of regal sway, more than once laid it
down in his speeches, that "as it is atheism and blasphemy in a
creature to dispute what the deity may do, so it is presumption and
sedition in a subject to dispute what a king may do in the height of
his power: good christians, he adds, will be content with God's will,
revealed in his word; and good subjects will rest in the king's will,
revealed in _his_ law[d]."
[Footnote b: Dewes. 479.]
[Footnote c: _Ibid._ 645.]
[Footnote d: King James's works. 557, 531.]
BUT, whatever might be the sentiments of some of our princes, this was
never the language of our antient constitution and laws. The
limitation of the regal authority was a first and essential principle
in all the Gothic systems of government established in Europe; though
gradually driven out and overborne, by violence and chicane, in most
of the kingdoms on the continent. We have seen, in the preceding
chapter, the sentiments of Bracton and Fortescue, at the distance of
two centuries from each other. And sir Henry Finch, under Charles the
first, after the lapse of two centuries more, though he lays down the
law of prerogative in very strong and emphatical terms, yet qualifies
it with a general restriction, in regard to the liberties of the
people. "The king hath a prerogative in all things, that are not
injurious to the subject; for in them all it must be remembered, that
the king's prerogative stretcheth not to the doing of any wrong[e]."
_Nihil enim aliud potest rex, nisi id solum quod de jure potest_[f].
And here it may be some satisfaction to remark, how widely the civil
law differs from our own, with regard to the authority of the laws
over the prince, or (as a civilian would rather have expressed it) the
authority of the prince over the laws. It is a maxim of the English
law, as we have seen from Bracton, that "_rex debet esse sub lege,
quia lex facit regem_:" the imperial law will tell us, that "_in
omnibus, imperatoris excipitur fortuna; cui ipsas leges Deus
subjecit_[g]." We shall not long hesitate to which of them to give the
preference, as most conducive to those ends for which societies were
framed, and are kept together; especially as the Roman lawyers
themselves seem to be sensible of the unreasonableness of their own
constitution. "_Decet tamen principem_," says Paulus, "_servare leges,
quibus ipse solutus est_[h]." This is at once laying down the
principle of despotic power, and at the same time acknowleging it's
absurdity.
[Footnote e: Finch. L. 84, 85.]
[Footnote f: Bract. _l._ 3. _tr._ 1. _c._ 9.]
[Footnote g: _Nov._ 105. Sec. 2.]
[Footnote h: _Ff._ 32. 1. 23.]
BY the word prerogative we usually understand that special
pre-eminence, which the king hath, over and above all other persons,
and out of the ordinary course of the common law, in right of his
regal dignity. It signifies, in it's etymology, (from _prae_ and
_rogo_) something that is required or demanded before, or in
preference to, all others. And hence it follows, that it must be in
it's nature singular and eccentrical; that it can only be applied to
those rights and capacities which the king enjoys alone, in
contradistinction to others, and not to those which he enjoys in
common with any of his subjects: for if once any one prerogative of
the crown could be held in common with the subject, it would cease to
be prerogative any longer. And therefore Finch[i] lays it down as a
maxim, that the prerogative is that law in case of the king, which is
law in no case of the subject.
[Footnote i: Finch. L. 85.]