3. The judges. "the said Hugh the father and Hugh the son, or one of "them, and at their will, and according to such things as "pleased them."f 3. A third council belonging to the king, are, according to sir 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, secundum 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 processes from Rome; and it was enacted, that the offenders should be attached by their bodies, and brought before the king and his council to answer for such offence; here, by the [229] expression of the king's council, were understood, according to Blackstone, the king's judges of his courts of justice, the subject matter being legal: this being the general way King's pow. of interpreting the word, council.h This, however has been the judges doubted by Mr. Justice Coleridge, in his note on the passage, who thinks that the council here mentioned was a court of very extensive equitable jurisdiction, both in civil and criminal matters; the fountain from which, in process of time, the courts of chancery and star-chamber were derived. The king's power to consult the judges extrajudicially, although not without precedent in former times, is now much disputed, and has of late never been exercised. er to consult extra-judicially. 4. The privy 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 sir Edward Coke's description of it, is a noble, honourable, and reverend assembly, of the king and such as he wills to be of his privy council, in the king's court or palace. The king's will is the sole constituent of a privy counsellor; and this also f 4 Inst, 53 R 1 Inst. 110. h 3 Inst. 125. iSee Harg. n. 5, Co. Litt. 110 a. j 4 Inst. 53. regulates their number, which of ancient time was twelve or thereabouts. Afterwards it increased to so large a number, that it was found inconvenient for secrecy and dispatch; and therefore king Charles the second in 1679 limited it to thirty: whereof fifteen were to be the principal [ 230 ] officers of state, and those to be counsellors, virtute officii; and the other fifteen were composed of ten lords and five commoners of the king's choosing.k But since that time the number has been much augmented, and now continues indefinite. At the same time also, the ancient office of lord president of the council was revived in the person of Anthony earl of Shaftesbury; an officer, that by the statute of 31 Hen. VIII. c. 10, has precedence next after the lord chancellor and lord treasurer. No inconvenience arises Privy counfrom the extension of the numbers of the privy council, as now specialthose only attend who are specially summoned for the ed. particular occasion upon which their advice and assistance are required. sellors are ly summon counsellors Privy counsellors are made by the king's nomination, How privy without either patent or grant; and, on taking the necessary are made. oaths, they become immediately privy counsellors during the life of the king that chooses them, but subject to removal at his discretion. cations. As to the qualifications of members to sit at this board: Their qualiany natural born subject of England is capable of being a member of the privy council; taking the proper oaths for security of the government, and the declaration1 for security of the church. But, in order to prevent any persons under foreign attachments from insinuating 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 person born out of the dominions of the crown of England, unless born of English parents, even though naturalized by parliament, shall be capable of being of the privy council. The duty of a privy counsellor appears from the oath of Their duty. Temple's Mem. part 3. This declaration is imposed by the 9 Geo. IV. c. 17, and 2 Wm. IV. c. 7, which abolished the former sacra- m Stat. 12 & 13 Wm. III. c. 2. R office," which consists of seven articles: 1. To advise the king according to the best of his cunning and discretion. 2. To advise 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 counsel secret. 4. To avoid corruption. 5. To help and strengthen the execution of [231] what shall be there resolved. 6. To withstand all persons who would attempt the contrary. And, lastly, in general, 7. To observe, keep and do all that a good and true counsellor ought to do to his sovereign lord. Their power. The power of the privy council is to inquire into all of fences against the government, and to commit the offenders to safe custody, in order to take their trial in some of the courts of law. But their jurisdiction herein is only to inquire, and not to punish: and the persons committed by them are entitled to their habeas corpus by statute 16 Car. I. c. 10, as much as if committed by an ordinary justice of the peace. And, by the same statute, the court of star-chamber, and the court of requests, both of which consisted of privy counsellors, were dissolved; 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 causes, which arise out of the jurisdiction of this kingdom; and in matters of lunacy or idiocy, being a special flower of the prerogative; with regard to these, although they may eventually involve questions of extensive property, the privy council continues to have cognizance, being the court of appeal in such cases: or, rather, the appeal lies to the king's majesty himself in council. Whenever also à question arises between two provinces in America or elsewhere, as concerning the extent of their charters and the like, the king in his council exercises original jurisdiction therein, upon the principles of feudal sovereignty. And so likewise when any person claims an island or a province, in the nature of a feudal principality, by grant from the king or his ancestors, the determination of that right belongs to his majesty in council: as was the case of the earl of Derby with regard to the isle of Man in the reign of queen Elizabeth, and the earl of Cardigan and others, as representatives of committee council. the duke of Montague, with relation to the island of St. Vincent in 1764. But from all the dominions of the crown excepting Great Britain and Ireland, an appellate jurisdiction (in the last resort) is vested in the same tribunal; and this [ 232 ] judicial authority has lately been remodelled by a statute of The judicial the late king. By this act a committee styled " the Judi- of the privy cial Committee of the Privy Council," is created, and is composed of the president of the council, the lord chancellor, the chief justice of the court of king's bench, the master of the rolls, the vice-chancellor, the chief justice of the common pleas, the lord chief baron, the judge of the prerogative court, the judge of the high court of admiralty, the chief judge in bankruptcy, the members of the privy council who shall have held any of these offices, and two other privy counsellors appointed by the king, who shall have held the office of judge in the East Indies, or any of the king's dominions beyond seas. This court has jurisdiction over all appeals made to the king in council from the courts of admiralty, or any other court in the plantations of America and other his majesty's dominions abroad. leges. The privileges of privy counsellors, as such, (abstracted Their privifrom their honorary precedence) consist principally in the security which the law has given them against attempts and conspiracies to destroy their lives. For, by statute 3 Hen. VII. c. 14, if any of the king's servants, of his household, conspire or imagine to take away the life of a privy counsellor, it is felony, though nothing be done upon it. The reason of making this statute, sir Edward Coker tells us, was because such a conspiracy was, just before this parliament, made by some of king Henry the seventh's household servants, and great mischief was like to have ensued thereupon. This extends only to the king's menial servants. But the statute 9 Ann. c. 16, goes farther, and enacts, that any person that shall unlawfully attempt to kill, or shall unlawfully assault, and strike, or wound, any privy counsellor in the execution of his office, shall be a felon without benefit of clergy. This statute was made upon the daring attempt of the sieur Guiscard, who stabbed Mr. Harley, afterwards earl of The dissolution of the cil. Oxford, with a penknife, when under examination for high crimes in a committee of the privy council. The dissolution of the privy council depends upon the privy coun- king's pleasure; and he may, whenever he thinks proper, discharge any particular member, or the whole of it, and appoint another. By the common law also it was dissolved ipso facto by the king's demise; as deriving all its authority from him. But now, to prevent the inconveniences of having no council in being at the accession of a new prince, it is enacted by statute 6 Ann. c. 7, that the privy council shall continue for six months after the demise of the crown, unless sooner determined by the successor. Importance of the privy minished, Cabinet council. The importance of the privy council as a whole, it is to be council di- observed, has much diminished. Its judicial business is transacted by the Judicial Committee, and almost all the executive authority is committed to the cabinet council, which consists of those ministers of state who are more especially honoured with the sovereign's confidence. Their number and selection depend only on the royal pleasure, and each member of that council receives a summons for every attendance. |