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or elsewhere, as concerning the extent of their charters and the like, the king in his council exercises original jurisdiction therein, upon the principles of feudal sovereignty. And so likewise when any person claims an island or a province, in the nature of a feudal principality, by grant from the king or his ancestors, the determination of that right belongs to his majesty in council: as was 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. But from all the dominions of the crown, excepting Great Britain and Ireland, an appellate jurisdiction *(in the last resort) is vested in the same tribunal; which usually exercises its judicial authority in a committee of the [*232] whole privy council, who hear the allegations and proofs, and make their report to his majesty in council, by whom the judgment is finally given.

The privileges of privy counsellors, as such, (abstracted from their honorary precedence,) (0) 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 household conspire or imagine to take away the life of a privy counsellor, it is felony, though nothing be done. upon it. The reason of making this statute, Sir Edward Coke (p) 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. (5)

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 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. (6)

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appeals in chancery, the master of the rolls, the vice chancellors, the chief justices of the queen's bench and common pleas, and chief baron of the exchequer, the judges of the courts of probate and admiralty, two members who have been judges in India or the colonies, all privy councillors who have held any of the other offices above mentioned, and two persons appointed under sign manual. It is called the judicial committee of the privy council, and it hears appeals from the colonial courts and India, and also in ecclesiastical cases. By stat. 6 and 7 Vic. c. 38, appeals and other matters may be heard before three members. This tribunal also hears applications for the extension of letters patent, or other matters relating thereto, and for licenses to republish books after the death of their authors.

(5) Both these statutes are repealed. See 9 Geo. IV, c. 31.

(6) Under the government of the United States the heads of the departments consist of the secretaries of state, of the treasury, of war, of the navy, of the interior, the attorney-general and the postmaster-general. The constitution, art. 2, 2, empowers the president to require the opinion in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices. Washington originated the practice of consulting all the heads of departments on important measures, and by later presidents they have generally been convened for joint consultation, until "cabinet meetings," to determine the course of the administration on all questions of importance are expected as a matter of course. The cabinet, however, as a body of councillors, has no necessary place in our constitutional system, and each president will accord to it such weight and influence in his administration as he shall see fit. The president-not the cabinet-is responsible for all the measures of the administration, and whatever is done by one of the heads of departments is considered as done by the president through the proper executive agent. In this fact consists one important difference between the executive of Great Britain and of the United

CHAPTER VI.

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: (1) 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 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 princi

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States; the acts of the former being considered those of his advisers, who alone are responsible therefor, while the acts of the advisers of the American executive are considered as directed and controlled by him. Another important difference in the cabinets is, that in the United States there is no "premier;" no leading member of the administration who selects the others; and though the position of secretary of state is generally considered the leading one, yet this is not always true in fact, and the incumbent has not, in the cabinet, a recognized superiority over the others. A third difference is, that the members of the American cabinet cannot have seats in the legislature. Const. of U. S. art. 1, § 6. A fourth and more important difference is, that there is no constitutional principle in the American system which requires the cabinet to be in accord with the congress or with either house thereof. The president selects for heads of the departments persons who concur in his own views, and he is not expected to change his advisers because the opposition is in the ascendancy in congress. It has frequently happened in our history that the president's friends, in one or both houses of congress, have been in a minority for a considerable period.

(1) Some of the constitutional provisions respecting the president of the United States have been referred to in preceding notes, but it may not be unimportant to give a summary of them here.

He is to hold his office for four years, and at stated times receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive during that period any other emolument from the United States or any of them. Art. 2, § 1.

He is to be commander-in chief of the army and navy, and of the militia of the several states when called into the actual service of the United States: he may require the opinion in writing of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment. Art. 2, § 2.

He has power, by and with the advice and consent of the senate, to make treaties, and he appoints, with the like advice and consent, the principal judicial and other officers. He fills vacancies during the recess of the senate by commissions which expire at the end of their next session. Ib.

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He is from time to time to give congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient. may on extraordinary occasions convene the two houses or either of them, and in case of disagreement between them in respect to the time of adjournment, he may adjourn them to such time as he shall think proper. He is to receive ambassadors and other public ministers; to take care that the laws be faithfully executed, and to commission all the officers of the United States. Art. 2, § 3.

ples 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 [*234] prerogative was at the highest. "The king," saith Bracton, (e) 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 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 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."

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. and M. st. 1, c. 6, is to be administered to every king and [*235]

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? (2) 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 herebefore promised I will perform and keep: so help me God:" and then shall kiss the book. (3)

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(2) During the reigns of Geo. III, and Geo. IV, opponents of catholic emancipation made use of this clause of the coronation oath as a reason for rejecting that measure, which they declared to be violative of the spirit of the oath; and this was a view which both these monarchs were inclined to take. See May's Const. Hist. c. 1.

The oath of office of the president of the United States is, "I do solemnly swear (or affirm) that I will faithfully execute the office of president of the United States, and will to the best of my ability preserve, protect and defend the constitution of the United States." Const. art. 2, § 1.

(3) [And it is required both by the bill of rights, 1 W. and M. st. 2, c. 2, and the act of settlement, 12 and 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 is now prescribed by our laws; the principal articles of which appear to be at least as ancient 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 [*236] ancient laws and constitutions at this time unknown. (h) However, in what form soever it be conceived, this is most undisputably 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 further 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 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.

CHAPTER VII.

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 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 intrench any farther on our natural liberties, than is expedient for the maintenance of our civil. (1)

(f) Cap. 1, § 2.

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

(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 franchises de seynt esglise grauntes aunciement dez droitez roys Christiens d'Engletere, et quil gardera toutez sez terrez honoures et dignitees droiturelx et franks del coron du roialme d'Engletere en tout maner dentierte sanz null maner damenusement, et lez droitez disperges dilapidez ou perduz de la corone a soun poiair reappeller en launsien estate, el quil gardera le peas de seynt esglise et al clergie et al people de bon accorde, et quil face faire en toutez sez jugmentez owel et droit justice oue discrecion et miskricorde, et quil grauntera a tenure lez leyes et custumez du roialm, et a soun poiair lez face garder et affirmer que lez gentez du people avont faitez, et esliez, et lez 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. i. j) Prynne has also 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.) (a) Chap. 1, page 141.

(1) [The splendor, rights, and powers of the crown, were attached to it for the benefit of the people, and not for the private gratification of the sovereign. They are therefore to be

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 its service: because perhaps the exertion of the one, like the [ *238]

solemnities of the other, would not bear the inspection of a rational and sober inquiry. 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 favourite 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)

But, whatever might be the sentiments of some of our princes, this was never the language of our ancient 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 [ *239] 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 " 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 acknowledging its absurdity.

rex debet

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 its etymology (from præ and rogo,) something that is required or demanded before, or in preference to, all others. And hence it follows, that it must be in its 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 prerog

(b) Dewes, 479.
(c) Ibid. 645.
(f) Bracton, l. 3, tr. 1, c. 9.

(d) King James' Works. 557, 531.
(h) Ff. 32, 1,23.

(q) Nov. 105, § 2.

(e) Finch, L. 84, 85.

guarded on account of the public; they are not to be extended further than the laws and constitution of the country have allowed them; but within these bounds they are entitled to every protection. Lord Kenyon, 4 T. R. 410; and see also Lord Hardwicke's observations in 3 Atk. 171.]

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