ment.

INSTANCES of Conventions of the peers, to advise the king, have been in former times very frequent; though now fallen into difufe, by reason of the more regular meetings of parliaSir Edward Coked gives us an extract of a record, 5 Hen. IV, concerning an exchange of lands between the king and the earl of Northumberland, wherein the value of each was agreed to be fettled by advice of parliament (if any fhould be called before the feaft of faint Lucia) or otherwife by advice of the grand council of peers which the king promifes to affemble before the faid feaft, in cafe no parliament fhall be called. Many other inftances of this kind of mecting are to be found under our antient kings: though the formal method of convoking them had been fo long left off, that when king Charles I. in 1640 iffued out writs under the great feal to call a great council of all the peers of England to meet and attend his majesty at York, previous to the meeting of the long parliament, the earl of Clarendon mentions it as a new invention, not before heard of; that is, as he explains himself, fo old, that it had not been practiced in fome hundreds of years. But, though there had not fo long before been an inftance, nor has there been any fince, of affembling them in fo folemn a manner, yet, in cafes of emergency, our princes have at feveral times thought proper to call for and confult as many of the nobility as could easily be got together as was particularly the cafe with king James the fecond, after the landing of the prince of Orange; and with the prince of Orange himself, before he called that convention parliament, which afterwards called him to the throne.

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BESIDES this general meeting, it is ufually looked upon to be the right of each particular peer of the realm to demand an audience of the king, and to lay before him, with decency and refpect, fuch matters as he fhall judge of importance to the public weal. And therefore, in the reign of Edward II, it was made an article of impeachment in parliament against

di Inft. C.

• Hift. b. 2.

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the two Hugh Spencers, father and fon, for which they were banished the kingdom, "that they by their evil covin would "not suffer the great men of the realm, the king's good coun"fellors, to speak with the king, or to come near him; but "only in the presence and hearing of the said Hugh the fa"ther and Hugh the fon, or one of them, and at their will, "and according to fuch things as pleafed them."

3. A THIRD Council belonging to the king, are, according to fir Edward Coke, his judges of the courts of law, for law matters. And this appears frequently in our statutes, particularly 14 Edw. III. c. 5. and in other books of law. So that when the king's council is mentioned generally, it must be defined, particularized, and understood, fecundum Subjectam materiam: and, if the subject be of a legal nature, then by the king's council is understood his council for matters of law; namely, his judges. Therefore when by statute 16 Ric. II. c. 5. it was made a high offence to import into this kingdom any papal bulles, or other proceffes from Rome; and it was enacted, that the offenders fhould be attached by their bodies, and brought before the king and his council to answer for fuch offence; here, by the expreffion of the king's council, were understood the king's judges of his courts of justice, the subject matter being legal: this being the general way of interpreting the word, council".

4. BUT the principal council belonging to the king is his privy council, which is generally called, by way of eminence, the council. And this, according to fir Edward Coke's defcription of it, is a noble, honourable, and reverend affembly, of the king and fuch as he wills to be of his privy council, in the king's court or palace. The king's will is the fole conftituent of a privy counsellor; and this also regulates their number, which of antient time was twelve or thereabouts. Afterwards it increased to so large a number, that it was found inconvenient for fecrecy and difpatch; and therefore king Charles the second in 1679 limited it to thirty:

whereof fifteen were to be the principal officers of state, and those to be counsellors, virtute officij; and the other fifteen were composed of ten lords and five commoners of the king's choofing, But fince that time the number has been much augmented, and now continues indefinite. At the same time alfo, the antient office of lord prefident of the council was revived in the perfon of Anthoný earl of Shaftsbury; an officer, that by the ftatute of 31 Hen. VIII. c. 10. has precedence next after the lord chancellor and lord treasurer,

PRIVY Counsellors are made by the king's nomination, without either patent or grant; and, on taking the necessary paths, they become immediately privy counsellors during the life of the king that chooses them, but fubject to removal at his difcretion.

As to the qualifications of members to fit at this board: any natural born fubject of England is capable of being a mem ber of the privy council; taking the proper oaths for fecurity of the government, and the test for fecurity of the church, But, in order to prevent any perfons under foreign attachments from infinuating themselves into this important trust, as happened in the reign of king William in many instances, it is enacted by the act of settlement', that no perfon born out of the dominions of the crown of England, unless born of English parents, even though naturalized by parliament, fhall be capable of being of the privy council,

THE duty of a privy counsellor appears from the oath of office, which confifts of feven articles: 1. To advise the king according to the best of his cunning and difcretion. 2. To advife for the king's honour and good of the public, without partiality through affection, love, meed, doubt, or dread. 3. To keep the king's counfel fecret. 4. To avoid corruption. 5. To help and ftrengthen the execution of what

* Temple's Mem. part 3.

1 Stat. 12 & 13 Will. III. c. 2.

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fhall be there refolved. 6. To withstand all perfons who would attempt the contrary. And, laftly, in general, 7. To obferve, keep and do all that a good and true counsellor ought to do to his fovereign lord.

THE power of the privy council is to inquire into all offences against the government, and to commit the offenders to fafe cuftody, in order to take their trial in fome of the courts of law. But their jurifdiction herein is only to inquire, and not to punish: and the perfons committed by them are intitled to their habeas corpus by ftatute 16 Car. I. c. 10. as much as if committed by an ordinary juftice of the peace. And, by the fame ftatute, the court of ftarchamber, and the court of requests, both of which confifted of privy counfellors, were diffolved; and it was declared illegal for them to take cognizance of any matter of property, belonging to the subjects of this kingdom. But, in plantation or admiralty caufes, which arife out of the jurifdiction of his kingdom; and in matters of lunacy or idiocy", ung a fpecial flower of the prerogative; with regard to thefe, although they may eventually involve questions of extenfive property, the privy council continues to have cognizance, being the court of appeal in fuch cafes: or, rather, the appeal lies to the king's majesty himself in council. Whenever 15 a question arifes between two provinces in America or where, as concerning the extent of their charters and like, the king in his council exercises original jurisdiction therein, upon the principles of feodal fovereignty. And fo likewife when any perfon claims an island or a province, in the nature of a feodal principality, by grant from the king or his ancestors, the determination of that right belongs to his majefty in council: as was the cafe of the earl of Derby with regard to the ifle of Man in the reign of queen Elizabeth, and the earl of Cardigan and others, as reprefentatives of the duke of Montague, with relation to the ifland of St. Vincent in 1764. But from all the dominions of the crown, excepting Great Britain and Ireland, an appellate jurifdi&ion

n 3 P. Wns, 108.

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(in the last refort) is vefted in the fame tribunal; which ufually exercifes it's judicial authority in a committee of the whole privy council, who hear the allegations and proofs, and make their report to his majefty in council, by whom the judgment is finally given.

THE privileges of privy counsellors, as such, (abstracted from their honorary precedence °) confift principally in the fecurity which the law has given them againit attempts and confpiracies to deftroy their lives. For, by ftatute 3 Hen. VII. c. 14. if any of the king's fervants, of his houthold, confpire or imagine to take away the life of a privy counsellor, it is felony, though nothing be done upon it. The reafon of making this ftatute, fir Edward Coke P tells us, was because fuch a confpiracy was, juft before this parliament, made by fome of king Henry the feventh's houfhold fervants, and great mifchief was like to have enfued thereupon. This extends only to the king's menial fervants. But the ftatute 9 Ann. c. 16. goes farther, and enacts, that any person that shall unlawfully attempt to kill, or fhall unlawfully affault, and ftrike, or wound, any privy counfellor in the execution of his office, fhall be a felon without benefit of clergy. This ftatute was made upon the daring attempt of the fieur Guifcard, who ftabbed Mr. Harley, afterwards earl of Oxford, with a penknife, when under examination for high crimes in a committee of the privy council.

THE diffolution of the privy council depends upon the king's pleasure; and he may, whenever he thinks proper, difcharge any particular member, or the whole of it, and appoint another. By the common law alfo it was diffolved ipfo facto by the king's demife; as deriving all it's authority from him. But now, to prevent the inconveniences of having no council in being at the acceffion of a new prince, it is enacted by ftatute 6 Ann. c. 7. that the privy council fhall continue for fix months after the demife of the crown, unless fooner determined by the fucceffor.