What conftitutionally meant by the election of the king to the throne.

enjoy lafting peace; for to this end was he created and elected, &c." That is to fay, to this end was he in his natural capacity formed and made by Almighty God, and in his political capacity was he conftituted and appointed by the people. For it appears, that Bracton ufes the word elected here, in the fame fenfe as Mr. Locke and Dr. Price applied it to King William and his prefent majefty King George the Third; and not in the least to imply, that any form of popular choice or election by vote was required by the conftitution to entitle or qualify a perfon to wear the crown of thefe realms. I know of no better nor furer ground to form a history of our conftitution upon, than the different forms of oaths, which have been tendered to and taken by our fovereigns at different periods and under different circumftances; they will of courfe befpeak the withes and claims of the people at the time, as well as the agnition and compact on behalf of the fovereign to fatisfy and admit them.

To comment upon thefe different forms of oaths, would exceed the intended limits of this publication; I fhall only therefore confider with judge Blakifton the effect of the prefent coronation oath, which is required to be taken by the acts of fettlement and

union.

«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 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 fubject will be confidered in its proper place; at prefent we are only to obferve, that in the king's part of this original contract are exprefied 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 farther remark, that by the act of union, 5 Ann, c. 8. two preceding ftatutes 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 acceffion fhall take and fubfcribe an oath to preferve the proteftant religion, and prefbyterian church government in Scotland; the

The effect of ronation oath.

the prefent co

Blak. b. i. c. 6. fub. fin.

latter,

The king's obligation to preferve the civil establishment of religion.

latter, that at his coronation he fhall 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.”

From the nature and purport of our prefent coronation oath, it must naturally occur to every one, that reflects upon what I have before faid of the king's headship or fupremacy over the civil establishment of the church of England, that he is equally bound to preferve the civil establishment of the prefbyterian church in Scotland, as of the proteftant church in England; though in principle and doctrine the two religions are widely different from each other. It was not only competent for, but incumbent upon King James the Second, as a Roman catholic, King William the Third, as a presbyterian, King George the First, as a Lutheran, and his prefent majesty, as a real church of England man, to comply with this coronation oath, by preferving the rights and privileges of these respective churches; for the civil establishments of them were fettled by pofitive laws, which the king is bound to obey and execute by virtue of his office and truft. Before I quit this fubject, it may not be improper to quote the anfwer of Sir John

Fortescue

Fortescue to his royal pupil's question; "Why fome kings of England were not pleased with the laws of England, but were induftrious to introduce the civil laws as a part of the conftitution, to the prejudice of the common

law?"

*« You would ceafe to wonder, my prince, if you would please seriously to confider the nature and occafion of the attempt. I have already given you to understand, that there is a very noted fentence, a favourite maxim or rule in the civil law, that which pleafes the prince has the effect of a law. The laws of England admit of no fuch maxim, or any thing like it. A king of England does not bear fuch a fway over his fubjects, as a king merely, but in a mixt political capacity; he is obliged by his coronation oath to the obfervance of the laws, which fome of our kings have not been able to digeft, because thereby they are deprived of that free exercife of dominion over their fubjects in that full extenfive manner, as thofe kings have, who prefide and govern by an abfolute regal power; who in pursuance of the laws of their refpective kingdoms, in particular, the civil law, and of the aforefaid maxim, govern their fub

* Fort. de Laud. Leg. Ang. c. xxxiv.

jects,

jects, change laws, enact new ones, inflict punifhments, and impofe taxes, at their mere will and pleasure, and determine fuits at law in fuch manner, when, and as they think fit; for which reafon your ancestors endeavoured to shake off this political frame of government, in order to exercife the fame abfolute regal dominion too over their fubjects, or rather to be at their full swing to act as they list.”

It was well obferved by the late judge Blakiston, who was neither a violent whig nor a republican writer, *" that one of the principal bulwarks of civil liberty, or in other words of the British conftitution, was the limitation of the king's prerogative by bounds fo certain and notorious, that it is impoffible he fhould ever exceed them without the confent of the people on the one hand, or on the other, without a violation of that original contract, which in all states impliedly, and in ours exprefsly, fubfifts between the prince and the fubject." He further afferts in a very manly manner the right, which in my circumstances I call a duty, to investigate and difcufs the prerogatives of the

crown.

"There cannot be a ftronger proof of that genuine freedom, which is the boaft of this

Blak. Com. b. i. c. 7.

age