K I 
appear to be at Ieaft as ancient as the Mirror of Juftices, 
and even as the time of Bradfon ; but the wording of it 
was changed at the revolution, becaufe (as the ftatute al¬ 
leges) the oath itfelf had been framed in doubtful words 
and expreflions, with relation to ancient iaws and confti- 
tutions at this time unknown. For thefe old coronation- 
oaths, fee i Comm. c. 6. p. 235. However, in what form 
foever it be conceived, this is mod indifputably a funda¬ 
mental and original exprefs contradf; 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 
fubjedf 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 fubjedf will 
be confidered in its proper place. At prefent we are only 
to obferve, that in the king’s part of this original con¬ 
tract are exprefled all the duties which a monarch can 
owe to his people, viz. to govern according to law ; to 
execute judgment in mercy; and to maintain the efta- 
blifhed religion. And, with refpedt to the latter of thele 
three branches, we may farther remark, that by the adt 
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 enadf ; 
the former, that every king at his acceffion (hall take and 
fubfcribe an oath, to preferve the proteftant religion, and 
prefbyterian church-government in Scotland ; the latter, 
that at his coronation he fliall take and fubfcribe a limilar 
oath, to preferve the fettlement of the church of Eng¬ 
land within England, Ireland, Wales, and Berwick, and 
the territories thereunto belonging. 
In order to affill the king in the difcharge of his duties, 
the maintenance of his dignity, and the exertion of his 
prerogative, the law hath aligned him a diverfity of coun¬ 
cils to advife with. Thefe are, his Parliament, his 
Peers, his Privy Council, and the Judges. See thole 
articles. 
III. That the king may be enabled to maintain the ex¬ 
ecutive government in due independence and vigour, 
and to difcharge with honour to himfelf and benefit to 
his fubjedfs the duties of his high ftation, the conltitution 
and laws have invelted him with a variety of prerogatives. 
And here we may make this preliminary obfervation, that 
there cannot be a ftronger proof of that genuine freedom, 
which is the boaft of this age and country, than the power of 
difcuiTing and examining, with decency and refpedt, the 
limits of the king’s prerogative. This was formerly con¬ 
fidered as a high contempt in a fubjedf ; and the glorious 
queen Elizabeth herfelf dire died her parliament to abftain 
from judging of or meddling with her prerogative. It is 
no wonder, therefore, that her fuccelfor, James I. fliould 
confider fuch a prefumption as little lefs than blafphemy 
and impiety. But, whatever might be the fentiments of 
fome of our princes, this was never the language of our 
ancient conltitution and laws. The fentiments of Brac- 
ton and Fortel'cue, at the diftance of two centuries from 
each other, may be feen by a reference to Bratton, 1 . i. c. 8. 
1 . ii. c. 16. and Fortefcue, c. 2. 34.. And fir Henry Finch, 
under Charles I. after the lapfe of two centuries more, 
though he lays down the law of prerogative in very ftrong 
and emphatical terms, yet qualifies it with a general re- 
lfriftion in regard to the liberties of the people. The king, 
fays he, has a prerogative in all things that are riot inju¬ 
rious to the fubjedf; for in them all it muff be remem¬ 
bered, that the king’s prerogative ftretcheth not to the 
doing of any wrong. Finch. 1 . 84, 5. 
The nature of our conltitution is that of a limited mo¬ 
narchy, in which the legiflative power is lodged in the 
king, lords, and commons; but the king is intrafted with 
the executive part, and from him all jultice is faid to flow ; 
hence he is ftyled the head of the commonwealth, fupreme 
governor, parens patria, &c. but Hill he is to make the 
law of the land the rule of his government; that being 
she mealuxe, as well of his power, as of the fubjedfs’ obe- 
N G. 731 
dience; for as the law aflerts, maintains, and provides for,, 
the lar'ety of the king’s royal perfon, crown, and dignity, 
and all his juft rights, revenues, powers, and prerogatives’; 
fo it likewife declares and afierts -the rights and liberties of 
the fubjedf. 1 And. 153. Co. Lit. 19, 75. 4. Co. 124. Hence 
it hath been eftablilhed as a rule, that all prerogatives 
rauft be for the advantage of the people, otherwife they 
ought not to be allowed by law. Moor 672. Show. P. C. 
Although the king is the fountain of juftice, and in¬ 
truded with the whole executive power of the law, yet he 
hath no power to alter the laws which have been efta- 
bliflied, and are the birthright of every fubjedf ; for by 
thole very laws he is to govern ; and, as they prefcribe the 
extent and bounds of his prerogative, in like manner they 
declare and afcertain the rights and liberties of the people, 
therefore admit of no innovation or change but by adt of 
parliament. 4 lnjl. 164. 2 Injl. 34,478. 2 Hal. Hijl. P.C. 131, 
282. 
The rights and prerogatives of the crown are in moft 
things as ancient as the law itfelf; for, though the ftatute 
17 Edw. II. c. i, commonly called the ftatute De praroga- 
tiva regis, feems to be introdutfive of fomething new, yet 
for the moft part it is but a collection of certain preroga¬ 
tives that were known law long before. And this ftatute 
does not contain the king’s whole prerogative, but only 
fo much thereof as concerns the profits of his coffers. 
Plowd. 314.' 
By the word prerogative is ufually underftood, that fpe- 
cial pre-eminence, which the king hath over and above all 
other perfons, and out of the ordinary courfe of the com¬ 
mon law, in right of his regal dignity. It fignifies, in its 
etymology, (from/ms and fogo,) fomething that is required 
or demanded before, or in preference to, all others. And 
hence it follows, that it mult be in its nature Angular and 
eccentrical ; that it can only be applied to thofe rights 
and capacities which the king enjoys alone in contradic¬ 
tion to others, and not to thofe which he enjoys in com¬ 
mon with any of his fubjedfs; for, if once any prerogative 
of the crown could be held in common with the fubject,. 
it would ceafe to be prerogative any longer.. Finch, 
therefore, lays it down as a maxim, that the prerogative 
is that law in cafe of the king, which is law in no cafe of 
the fubject. 
Prerogatives are either dirttt or incidental. The direSt 
are fuch pofitive fubftantial parts of the royal charadter 
and authority, as are rooted in, and fpring from, the king’s 
political perfon, and of which we are about to ftate ther 
law at fome length. But fuch prerogatives as are inciden¬ 
tal bear always a relation to fomething elfe, diftindl from, 
the king’s perfon, and are indeed only exceptions, in fa¬ 
vour of the cijown, to the general rules eftablilhed for the 
reft of the community; fuch as that no cofts fliall be re¬ 
covered againft the king ; that he can never be a joint- 
tenant ; and that his debt fliall be preferred before that 
of a fubjedf. Other incidental prerogatives are, that, wdiere 
the title of the king and a common perfon concur, the 
king’s title fliall be preferred. 1 Injl. 30. No diftrefs can 
be made upon the king’s poffeflion, but he may diftrain 
out of his fee in other lands, &c. and may take diftrefles 
in the highway. 2 Injl. 131.. An heir fhall pay the king’s 
debt, though he is not named in the bond ; and the king’s 
debt fliall be fatisfied before that of a fubjedf, for which 
there is a prerogative-writ. 1 Injl. 130, 386. But this is 
where the debt is in equal degree with that of the fubjedf. 
33 Hen. VIII. c. 39. Cro. Car. 283. Hardr. 23. Goods 
and chattels may go in fucceflion to the king, though they 
may not to any other foie corporation. 1 Injl. 90. In the 
hands of whomfoever the goods of the king come, their 
lands are chargeable, and may be feized for the fame ; and 
the king is not bound by file of his goods in open 
market. 2 Injl. 713. No entry will bar the king, and no 
judgment is final againft him, but with a falvo jure regis. 
Litt. 178. The king may plead feveral matters without 
being guilty of double pleading, and the party fliall an- 
fwer them all. Bro. Dcugl. pi, 57. In his pleading he need 
3 n«$r 
