king, is with regard to his councils. For, in order to assist
him in the discharge of his duties, the maintenance of his dignity,
and the exertion of his prerogative, the law hath assigned
him a diversity of councils to advise with.
1.
we have already treated at large.
2.
counsellors of the crown, and may be called together by
the king to impart their advice in all matters of importance to
the realm, either in time of parliament, or, which hath been
their principal use, when there is no parliament in being[a]. Accordingly
Bracton[b], speaking of the nobility of his time, says
they might properly be called "consules, a consulendo; reges enim
tales sibi associant ad consulendum." And in our law books[c] it is
laid down, that peers are created for two reasons; 1. Ad consulendum,
2. Ad defendendum regem: for which reasons the law gives
them certain great and high privileges; such as freedom from
arrests, &c, even when no parliament is sitting: because the law
intends, that they are always assisting the king with their counsel
for the commonwealth; or keeping the realm in safety by their
prowess and valour.
have been in former times very frequent; though now fallen into
disuse, by reason of the more regular meetings of parliament.
Sir Edward Coke[d] 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
settled by advice of parliament (if any should be called before the
feast of St Lucia) or otherwise by advice of the grand council (of
peers) which the king promises to assemble before the said feast,
in case no parliament shall be called. Many other instances of
this kind of meeting are to be found under our antient kings:
though the formal method of convoking them had been so long
left off, that when king Charles I in 1640 issued out writs under
the great seal 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[e] mentions it as a
new invention, not before heard of; that is, as he explains himself,
so old, that it had not been practiced in some hundreds of
years. But, though there had not so long before been an instance,
nor has there been any since, of assembling them in so solemn a
manner, yet, in cases of emergency, our princes have at several
times thought proper to call for and consult as many of the nobility
as could easily be got together: as was particularly the case
with king James the second, 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.
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
respect, such matters as he shall 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 the two Hugh
Spencers, father and son, 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 counsellors, to speak with the
king, or to come near him; but only in the presence and hearing
of 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.
Edward Coke[g], his judges of the courts of law, for law matters.
And this appears frequently in our statutes, particularly 14 Ed. 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 expression of 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[h].
4.
privy council, which is generally called, by way of eminence,
the council. And this, according to sir Edward Coke's description
of it[i], is a noble, honorable, 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 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 secresy and
dispatch; 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 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 antient office of lord president of the council was revived in
the person of Anthony earl of Shaftsbury; an officer, that by the
statute of 31 Hen. VIII. c. 10. has precedence next after the lord
chancellor and lord treasurer.
either patent or grant; and, on taking the necessary oaths, they
become immediately privy counsellors during the life of the king
that chooses them, but subject to removal at his discretion.
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 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.
against the government, and to commit the offenders into custody,
in order to take their trial in some of the courts of law. But
their jurisdiction is only to enquire, 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
starchamber, 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 and ideocy (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
causes: or, rather, the appeal lies to the king's majesty himself, assisted
by his privy council.
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 test 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[m], 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.
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 houshold,
conspire or imagine to take away the life of a privy counsellor, it
is felony, though nothing be done upon it. And the reason of
making this statute, sir Edward Coke[n] tells us, was because such
servants have greater and readier means, either by night or by
day, to destroy such as be of great authority, and near about the
king: and such a conspiracy was, just before this parliament, made
by some of king Henry the seventh's houshold 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 persons 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 felons, and suffer
death as such. This statute was made upon the daring attempt
of the sieur Guiscard, who stabbed Mr Harley, afterwards earl
of Oxford, with a penknife, when under examination for high
crimes in a committee of the privy council.
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 it's 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.
"End of Section 24"
