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Instances of conventions of the peers, to advise the king, have been in former times very frequent; though now fallen into disuse, by reason of the more regular meetings of parliament. Sir 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 settled by advice of parliament, (if any should be called before the feast of saint 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 ancient 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 Clarendone men. tions it as a new invention, not before heard of; that is, as he explains himself, so old, that it had not been practised 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 particulaly 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.

BESIDES this general meeting, it is usually 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 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

di Inst. 110.

e Hist. b. 2.

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.”

3. A THIRD council belonging to the king, are, according to sir Edward Cokes, 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 expression 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, councilh.

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 iti, 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 ancient time was twelve or thereabouts. Afterwards it increased to so large a number, that it was found inconvenient for secrecy and despatch ; and therefore

f 4 Inst, 53. g 1 Inst. 110.

h 3 Inst. 125. i 4 Inst. 53.

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 choosingk. But since that time the number has been much augmented, and now continues indefinite (1). At the same time also the ancient 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.

PRIVY counsellors are made by the king's nomination, without 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.

As to the qualifications of members to sit at this board : any 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 test for security of the church.

k Temple's Mem. part 3.

(1) No inconvenience arises from the extension of their numbers, as those only attend who are specially summoned for that particular occasion upon which their advice and assistance are required. The cabinet council, as it is called, consists of those ministers of state who are more immediately honored with his majesty's confidence, and who are summoned to consult upon the important and arduous discharge of the executive authority: their number and selection depend only upon the king's pleasure ; and each member of that council receives a sum. mons or message for every attendance.

(2) It appears from the 4 Inst. 55. that this office existed in the time of Ja. I; for lord Coke says, “ there is, and of ancient time hath been, a president of the council. This office was never granted but by letters patent under the great seal durante beneplacito, and is very ancient; for John bishop of Norwich was president of the council in anno 7 regis Johannis. Dormivit tamen hoc officium regnante magna Elizabethâ."

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 officem, 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 honor 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 [231] 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.

The power of the privy council is to inquire into all offences against the government, and to commit the offenders to safe

tody, 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 starchamber, and the court of requests, both of which consisted of privy counsellors, were dissolved ; and it was declared illegal for them to take cognisance 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

I Stat. 12 and 13 Will. III. c. 2.

m 4 Inst, 64.

n 3 P. Wms. 108.

council continues to have cognisance, being the court of appeal in such cases : or, rather, the appeal lies to the king's majesty himself in council (3). Whenever also a 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 feodal sovereignty. And so likewise when any person 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 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 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; which usually exercises its judi- [232] cial authority in a committee of the whole privy council, who hear the allegations and proofs, and make their report to his majesty in council, by whom the judgment is finally given (4).

The privileges of privy counsellors, as such, (abstracted from 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,

o See page 405.

(3) This is, in fact, a court of justice, which must consist of at least three privy counsellors.

(4) The court of privy council cannot decree in personam in England, unless in certain criminal matters ; and the court of chancery cannot decree in rem out of the kingdom. See Lord Hardwicke's Arg. in Pen u. Baltimore, 1 Ves. 444. where the jurisdiction of the council and chancery, upon questions arising upon subject-matter abroad, is largely discussed.

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