LAWS OF ENGLAND
BOOK THE FIRST ....... PART THE SECOND
THE RIGHTS OF PERSONS
CHAPTER THE SIXTH
OF THE KING'S DUTIES
The Rights of Persons.
I PROCEED next to the duties, incumbent on the king by our conftitution ; in confideration of which duties his dignity and prerogative are eftablifhed by the laws of the land : it being a maxim in the law, that protection and fubjection are reciprocal a. And thefe 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 meafure 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 underftandings might very confiderably differ ; it was, after the revolution, judged proper to declare thefe duties expreffly ; and to reduce that contract to a plain certainty. So that, whatever doubts might be formerly raifed by weak and fcrupulous minds about the exiftence of fuch an original contract, they muft now entirely ceafe ; efpecially with regard to every prince, who has 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 anceftors on the continent b. And this is not only confonant to the principles of nature, of liberty, of
The Rights of Persons.
reafon, and of fociety, but has always been efteemed an exprefs part of the common law of England, even when prerogative was at the higheft. The king, faith Bracton c, who wrote under Henry III, ought not to be 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 pleafure rules, and not the law. And again d ; the king alfo hath a fuperior, namely God, and alfo the law, by which he was made a king. Thus Bracton : and Fortefcue alfo e, having firft well diftinguifhed 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 coronation to the obfervance and keeping of his own laws. But, to obviate all doubts and difficulties concerning this matter, it is expreffly declared by ftatute 12 & 13 W. III. c. 2. [p. 362] 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 adminifter the government of the fame according to the faid laws ; and all their officers and minifters ought to ferve them refpectively according to the fame : and therefore all the laws and ftatutes of this realm, for fecuring the eftablifhed religion, and the rights and liberties of the people thereof, and all other laws and ftatutes of the fame now in force, are by his majefty, by and with the advice and confent of the lords fpiritual and temporal and commons, and by authority of the fame, ratified and confirmed accordingly.
E e 2 tion
The Rights of Persons.
tion oath, which by the ftatute 1 W. & M. ft. 1. c. 6. [p. 40] is to be adminiftred to every king and queen, who fhall fucceed to the imperial crown of thefe realms, by one of the archbifhops or bifhops 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 :
The archbifhop or bifhop fhall fay, Will you folemnly promife 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 cuftoms of the fame? --- The king or queen fhall fay, I folemnly promife fo to do.
Archbifhop or bifhop. Will you to the utmoft of your power maintain the laws of God, the true profeffion of the gofpel, and the proteftant reformed religion eftablifhed by the law ? And will you preferve unto the bifhops and 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 perform and keep : fo help me God. And then fhall kifs the book.
THIS is the form fo the coronation oath, as it is now prefcribed by our laws : the principal articles of which appear to be at leaft as antient as the mirror of juftices f, and even as the time of Bracton g : but the wording of it was changed at the revolution, becaufe (as the ftatute alleges) the oath itfelf had been
The Rights of Persons.
framed in doubtful words and expreffions, with relation to antient laws and conftitutions at this time unknown h. However, in what form foever it be conceived, this is moft indifputably 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 defcent 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 eftablifhed religion. [Supp.]
h In the old folio abridgment of the ftatutes, printed by Lettou and Machlinia, in the reign of Edward IV, (penes me) there is preferved a copy of the old coronation oath ; which, as the book is extremely fcarce, I will here tranfcribe. Ceo eft le ferement que le roy jurre a foun coronement : que il gardera et mei tenera lez droitez et lez franchifez de feynt esglife grauntez auncienment dez droitez roys chriftiens d'Engletere, et quil gardera toutez fez terrez honoures et dignites droiturelx et franks del coron du roialme d'Engletere en tout maner dentier te fanz null maner damenufement, et lez droitez difpergez dilapidez ou perduz de la corone a foun poiair reappeller en launcien eftate, et quil gardera le peas de feynt esglife et al clergie et at people de bon accorde, et quit face faire en toutez fez jugementez owel et droit juftice oue difcretion et mifericorde, et quil grauntera a tenure lez leyes et cuftumez du roialme, et a foun poiar lez face garder et affirmer que lez gentez du people avont faitez et eftiez, et lez malveys leyz et cuftumes de tout ouftera, et ferme peas et eftablie al people de foun roialine en ceo garde efgardera a foun poiair : come Dieu luy aide. Tit. facramentum regis. fol. m. ij.
Chap. 5 Index Chap. 7