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.
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."
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."
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.
"End of Section 25"
