character in cabinet ministers to which responsibility is attached, unless by a signature or the setting of a seal, the responsibility of a particular person for any measure can be proved.

It is, however, probable, that the principal members of the ministry would be presumed to be cognisant of the acts of the government; and again, that each cabinet minister would be presumed to have either advised the crown, or acquiesced in the advice given by his colleagues, at least in all matters within his particular department, and would not be permitted to evade official knowledge of such matters. Thus Lord Somers was impeached (among other things) for putting the great seal to a blank commission. Such presumptions must necessarily arise from the invariable practice in the administration of the affairs of state, which it would not be difficult to prove.

William III. is said, by Hallam, to have been less guided by responsible councillors than the spirit of our constitution requires. It was endeavoured to restore the ancient form of administration by the provision in the act of settlement, that, after the accession of the house of Hanover, all resolutions as to the government should be debated in the privy council, and signed by those present. That enactment was, however, repealed by stat. 4 Anne, c. viii., and 6 Anne, c. vii., and the plans of government are discussed and determined in a cabinet council, forming indeed part of the privy council, but unknown to the law by any distinct character or special appointment. But proclamations and orders still emanate, as the law requires, from the privy council; and, on some rare occasions, even of late years, matters of domestic policy have been referred to their advice. It is, however, the established practice for no privy councillor to attend unless specially summoned. But there is little doubt that every privy councillor is as responsible, for every measure which can be proved to have been adopted with his consent, as those who are called cabinet ministers. There is a committee of the privy council for the consideration of matters relating to trade and foreign plantations. That department of public affairs had been administered by eight commissioners. The suppression of that board having caused inconvenience, the duties of the commissioners were, in 1784, entrusted to nineteen privy councillors, assisted by two secretaries. The permanent committee now known under the title of the Board of Council for Trade and Foreign Plantations, was however instituted by order in council on the fifth of March, 1784. To that body certain administrative powers respecting railways have been entrusted, by divers statutes. passed during the present reign2, particularly 3 & 4 Vict. c. 97., 5 & 6 Vict. c. 55., and 7 & 8 Vict. c. 85., and the railway clauses consolidation act, 8 & 9 Vict. c. 20.

1 Com. Dig. Parliament, L. 32. 2 Steph.Com. b. iv. Part III. c. ix. vol. iii. p. 300.

K

CHAPTER X.

OF THE QUEEN'S DUTIES.

Ir is a maxim in the constitutional law of England, that protection and subjection are reciprocal. Thus the royal prerogative and dignity are established by the law of the land, in consideration of the duties which the constitution imposes on the sovereign.

It may, however, be doubted how far Blackstone is warranted in referring those reciprocal rights and obligations of the crown and the subject to an original contract.

It never has been shown when and how such a contract was ever entered into. When King William accepted the crown in 1688, he no doubt became bound to perform the duties incumbent on a king of England; and the nation were at the same time placed under a corresponding obligation towards him. But this could not properly constitute an original contract. Every person accepting an office is bound to perform the duties thereof; but this obligation does not arise from a contract, because it does not spring from any consent given, but from a superior, extrinsic obligation. Every man undertaking the duties of an office, certainly does, by implication, engage to discharge those duties in a proper manner; but his obligation so to do is entirely independent of any consent or voluntary engagement on his part. Thus, a man compelled to accept an office, is as much bound to perform the duties thereof, as if he had voluntarily taken it upon himself.

Thus king William accepted the kingly office, as it stood according to the constitution of the realm, and, having accepted it, he became bound by the obligations appertaining thereto, not by his own consent or contract, but by the law of England. The frame of the constitution was not dissolved by the forfeiture of the crown by king James. There was nothing wanting to render the constitution complete but a king. The convention-parliament, who called king William to the throne, were therefore clearly not competent to enter into an original contract, establishing by their consent on what terms the crown should be held. They, moreover, did not assume any such power, but simply called the prince and princess of Orange to the crown.

We may conclude from these principles, and from the impossibility

17 Rep. 5.

of discovering at what time and in what manner an original contract was entered into between the sovereign and the people, that that contract is a mere legal fiction.

The principal duty of the sovereign is to govern the people according to law. And this limitation of the royal authority by law is, as Blackstone informs us, not only consonant to the principles of nature, but has always been esteemed an express part of the law of England. "The king,” saith Bracton, who wrote under Henry III., “ought not to be under man, but under God and the law, because the law maketh the king. Let the king, therefore, ascribe to the law what the law ascribeth to him,-to wit, domination and power; for there is no king where will ruleth, and not the law."1

Fortescue, after having distinguished between a despotic monarchy and a limited monarchy (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."2 But, to obviate all doubts and difficulties concerning this matter, it is expressly declared by the statute 12 and 13 Wm. III. c. ii., "that the laws of England are the birthright of the people thereof; and all the kings and queens who 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."

The substance of the duties incumbent on the sovereign by the constitution of England is contained in the coronation-oath, which, by the stat. 1 W. & M. st. i. c. vi., is to be administered 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.

It must, however, be observed, that as the subject is bound by the same duty towards the crown before as after taking the oath of allegiance, so the nature of the obligations of the sovereign are not in any way altered by the administration of the coronation-oath, which seals with a solemn religious sanction the obligations inherent in the regal office within these realms.

The coronation-oath is conceived in the following terms:"The archbishop or bishop shall say, 'Will you solemnly promise

1 Bracton, 1. i. c. viii.

2 Fortescue, c. ix. and xxxiv.

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 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 promised, I will perform and keep: so help me God;' and shall then kiss the book."

Such is the form of the oath which our laws require to be taken by the sovereigns of these realms at their coronation. The chief articles are of great antiquity; but the wording of the oath was altered by the stat. 1 W. & M. st. i. c. vi., to render it free from doubt, and conformable to modern laws and usages.

It is also enacted by the act of union, 5 Anne, c. viii., reciting and confirming two preceding statutes, one of the parliament of England, the other of the parliament of Scotland, that every king at his accession shall take and subscribe an oath to preserve the Protestant religion and Presbyterian Church-government; 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 thereto belonging.

CHAPTER XI.

mons

OF THE ROYAL PREROGATIVE.

WE have already seen that the absolute sovereignty of this empire is vested in the parliament, composed of the queen, the lords, and the coman unlimited power, which has indeed (by a somewhat bold figure of speech) been called the omnipotence of parliament. Our constitutional law, however, awards the attribute of sovereignty or majesty to the crown alone; and for this there are abundant reasons.

In the crown is vested the whole executive power; and it is one branch, or rather the very head, of the legislature. The crown is also the fountain of justice, from whence the whole judicial authority flows. It follows that the crown is clothed with the greatest part of that supreme authority whereby the commonwealth is governed. Moreover, the parliament is assembled only at certain times and seasons, while the existence of the crown is uninterrupted and perpetual. And this is wisely ordained, because it would be highly prejudicial to the interests of the state that the management of all public affairs should be centred in the great council of the nation, as they inevitably would be, if that body were perpetually assembled. The deliberations of so numerous an assembly are defective in many cases in which despatch and secrecy are requisite; and indeed the uninterrupted continuance of legislation would be seriously inconvenient to the administration of public affairs.

moment.

The two houses of parliament are therefore only temporarily called together, for the purpose of legislating with the crown, providing supplies, exercising a supervision over the ministers of the crown and all other functionaries, and advising the sovereign on matters of public But to the crown is entrusted the permanent and constant task of government, to be fulfilled in accordance with the law of the realm, and by the advice of servants responsible to parliament. And here we cannot but perceive the error of those who think that the business of government consists mainly in proposing new laws to parliament, and who reduce all government to the functions of a parliamentary leader. The crown is besides invested with the character of representative of the majesty of the state; and to the crown belongs dominion over the territories and the whole patrimony of the nation.