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.

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 the two Hugh [*229] 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. A third council belonging to the king are, according to Sir Edward Coke, (g) 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 mentoned 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 stat. 16 Ric. II, c. 5, it was made a high offence to import into this kingdom any papal bulls, 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 council. (h) (1)

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, (i) 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 councellor; 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 dispatch; and *therefore King Charles the

Second in 1679 limited it to thirty; whereof fifteen were to be the princi- [*230]

pal 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. (2) At the same time, also, the ancient office of lord president of the (f) 4 Inst. 53. (g) 1 Inst. 110. (h) 3 Inst. 125. (i) 4 Inst. 53.

(k) Temple's Mem. Part. 3.

(1) Mr. Justice Coleridge doubts this interpretation, and is inclined to the opinion that the tribunal referred to is that out of which subsequently grew the courts of chancery and star chamber. And see Hallam, Const. Hist. c. 1.

(2) In modern usage the following officers of state have seats in the Queen's chief council or "Cabinet" as it is usually called: The first lord of the treasury, the chancellor of the exchequer, the five principal secretaries of State, the first lord of the Admiralty, and the lord high Chancellor. But it is also customary to include among the number the lord President of the Council, and the lord Privy Seal. Several other ministerial functionaries usually have seats in the cabinet; never less than three and rarely so many as seven or eight, in addition to those above mentioned. The selection is made either from amongst such of the principal officers of state and heads of departments having seats in parliament, whose rank, talents, political reputation and weight would be likely to render them the most useful auxiliaries, or from those whose services to their party while in opposition may have given them the strongest claims to this distinction. Todd. Parl. Gov. Vol. 2, p. 153.

Persons may be called to the "cabinet," however, without being incumbents of any office, as was the case of the earl of Carlisle in the ministry of Earl Grey. All the members are not

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. (3) 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, (7) 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 office, (m) 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 council secret. 4. To avoid corruption. 5. To help and strengthen the execution of what *shall be there resolved. 6. To with[*231] stand 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 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. 1, 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, (n) 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. (4) Whenever also a question arises between two provinces in America

(2) Stat. 12 and 13 Will. III, c. 2.

(m) 4 Inst. 54.

(n) 3 P. Wms. 108.

necessarily called to every meeting, but only those are summoned whose advice and assistance are required on the particular occasion.

In practice an administration is formed by some one selected by the queen for the purpose, who is called the prime minister or premier, and who will fill the important offices of state with those who are friendly to his policy. The premier himself usually becomes first lord of the treasury, but sometimes selects some other position. The cabinet must contain members of both houses of parliament. Sometimes a judge has been called to a seat in the cabinet, as in the cases of Lord Mansfield and Lord Ellenborough; but this was always considered objectionable on constitutional grounds; the theory of the constitution being that the judge should be independent of the crown.

(3) The oath now prescribed is the very simple form given in the Promissory Oaths act 1868, 31 and 32 Vic. c. 72.

(4) This judicial tribunal was entirely reorganized under stat. 2 and 3 Will. IV, c. 92; 3 and 4 Will. IV, c. 41; and 6 and 7 Vic. c. 38. It consists now of the president of the council, the lord chancellor, the archbishops of Canterbury and York, the lords justices of the court of

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 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 judicial authority in a committee of the [*232] 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.

The privileges of privy counsellors, as such, (abstracted from their honorary precedence,) (0) 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 Coke (p) 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 Oxford, with a penknife, when under examination for high crimes in a committee of the privy council. (5)

The dissolution of the privy council depends upon the 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. (6)

appeals in chancery, the master of the rolls, the vice chancellors, the chief justices of the queen's bench and common pleas, and chief baron of the exchequer, the judges of the courts of probate and admiralty, two members who have been judges in India or the colonies, all privy councillors who have held any of the other offices above mentioned, and two persons appointed under sign manual. It is called the judicial committee of the privy council, and it hears appeals from the colonial courts and India, and also in ecclesiastical cases. By stat. 6 and 7 Vic. c. 38, appeals and other matters may be heard before three members. This tribunal also hears applications for the extension of letters patent, or other matters relating thereto, and for licenses to republish books after the death of their authors.

(5) Both these statutes are repealed. See 9 Geo. IV, c. 31.

(6) Under the government of the United States the heads of the departments consist of the secretaries of state, of the treasury, of war, of the navy, of the interior, the attorney-general and the postmaster-general. The constitution, art. 2, 2, empowers the president to require the opinion in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices. Washington originated the practice of consulting all the heads of departments on important measures, and by later presidents they have generally been convened for joint consultation, until "cabinet meetings," to determine the course of the administration on all questions of importance are expected as a matter of course. The cabinet, however, as a body of councillors, has no necessary place in our constitutional system, and each president will accord to it such weight and influence in his administration as he shall see fit. The president-not the cabinet-is responsible for all the measures of the administration, and whatever is done by one of the heads of departments is considered as done by the president through the proper executive agent. In this fact consists one important difference between the executive of Great Britain and of the United

CHAPTER VI.

OF THE KING'S DUTIES.

I PROCEED next to the duties, incumbent on the king by our constitution; in consideration of which duties his dignity and prerogative are established by the laws of the land: (1) it being a maxim in the law, that protection and subjection are reciprocal. (a) And these reciprocal duties are what, I apprehend, were meant by the convention in 1688, when they declared that King James had broken the original contract between king and people. But, however, as the terms of that original contract were in some measure disputed, being alleged to exist principally in theory, and to be only deducible by reason and the rules of natural law; in which deduction different understandings might very considerably differ: it was, after the revolution, judged proper to declare these duties expressly, and to reduce that contract to a plain certainty. So that, whatever doubts might be formerly raised by weak and scrupulous minds about the existence of such an original contract, they must now entirely cease; especially with regard to every prince who hath reigned since the year 1688.

The principal duty of the king is, to govern his people according to law. Nec regibus infinita aut libera potestas, was the constitution of our German ancestors on the continent. (b) And this is not only consonant to the princi

States; the acts of the former being considered those of his advisers, who alone are responsible therefor, while the acts of the advisers of the American executive are considered as directed and controlled by him. Another important difference in the cabinets is, that in the United States there is no "premier;" no leading member of the administration who selects the others; and though the position of secretary of state is generally considered the leading one, yet this is not always true in fact, and the incumbent has not, in the cabinet, a recognized superiority over the others. A third difference is, that the members of the American cabinet cannot have seats in the legislature. Const. of U. S. art. 1, § 6. A fourth and more important difference is, that there is no constitutional principle in the American system which requires the cabinet to be in accord with the congress or with either house thereof. The president selects for heads of the departments persons who concur in his own views, and he is not expected to change his advisers because the opposition is in the ascendancy in congress. It has frequently happened in our history that the president's friends, in one or both houses of congress, have been in a minority for a considerable period.

(1) Some of the constitutional provisions respecting the president of the United States have been referred to in preceding notes, but it may not be unimportant to give a summary of them here.

He is to hold his office for four years, and at stated times receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive during that period any other emolument from the United States or any of them. Art. 2, § 1.

He is to be commander-in chief of the army and navy, and of the militia of the several states when called into the actual service of the United States: he may require the opinion in writing of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment. Art. 2, § 2.

He has power, by and with the advice and consent of the senate, to make treaties, and he appoints, with the like advice and consent, the principal judicial and other officers. He fills vacancies during the recess of the senate by commissions which expire at the end of their next session. Ib.

He

He is from time to time to give congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient. may on extraordinary occasions convene the two houses or either of them, and in case of disagreement between them in respect to the time of adjournment, he may adjourn them to such time as he shall think proper. He is to receive ambassadors and other public ministers; to take care that the laws be faithfully executed, and to commission all the officers of the United States. Art. 2, § 3.

[*234]

ples of nature, of *liberty, of reason, and of society, but has always been esteemed an express part of the common law of England, even when prerogative was at the highest. "The king," saith Bracton, (c) who wrote under Henry III, "ought not to be subject to man, but to God, and to the law; for the law maketh the king. Let the king therefore render to the law, what the law has invested in him with regard to others; dominion and power for he is not truly king, where will and pleasure rules, and not the law." And again, (d) the king also hath a superior, namely God, and also the law, by which he was made a king." Thus Bracton: and Fortescue also, (e) having first well distinguished between a monarchy absolutely and despotically regal, which is introduced by conquest and violence, and a political or civil monarchy which arises from mutual consent, (of which last species he asserts the government of England to be;) immediately lays it down as a principle, that "the king of England must rule his people according to the decrees of the laws thereof: insomuch that he is bound by an oath at his coronation to the observance and keeping of his own laws." But, to obviate all doubts and difficulties concerning this matter, it is expressly declared by statute 12 and 13 W. III, c. 2, "that the laws of England are the birthright of the people thereof: and all the kings and queens who shall ascend the throne of this realm ought to administer the government of the same according to the said laws; and all their officers and ministers ought to serve them respectively according to the same: and therefore all the laws and statutes of this realm, for securing the established religion, and the rights and liberties of the people thereof, and all other laws and statutes of the same now in force, are ratified and confirmed accordingly."

And, as to the terms of the original contract between king and people, these I apprehend to be now couched in the *coronation oath, which by the

statute 1 W. and M. st. 1, c. 6, is to be administered to every king and [ *235]

queen, who shall succeed to the imperial crown of these realms, by one of the archbishops or bishops of the realm, in the presence of all the people; who on their parts do reciprocally take the oath of allegiance to the crown. This coronation oath is conceived in the following terms:

The archbishop or bishop shall say," Will you solemnly promise and swear to govern the people of this kingdom of England, and the dominions thereto belonging, according to the statutes in parliament agreed on, and the laws and customs of the same ?" The king or queen shall say, "I solemnly promise so to do."-Archbishop or bishop, "Will you to your power cause law and justice, in mercy, to be executed in all your judgments?" King or queen, “I will.”— Archbishop or bishop, "Will you to the utmost of your power maintain the laws of God, the true profession of the gospel, and the protestant reformed religion established by the law? (2) And will you preserve unto the bishops and clergy of this realm, and to the churches committed to their charge, all such rights and privileges as by law do or shall appertain unto them or any of them?"- King or queen, "All this I promise to do."— After this the king or queen, laying his or her hand upon the holy gospels, shall say, "The things which I have herebefore promised I will perform and keep: so help me God:" and then shall kiss the book. (3)

(2) During the reigns of Geo. III, and Geo. IV, opponents of catholic emancipation made use of this clause of the coronation oath as a reason for rejecting that measure, which they declared to be violative of the spirit of the oath; and this was a view which both these monarchs were inclined to take. See May's Const. Hist. c. 1.

The oath of office of the president of the United States is, "I do solemnly swear (or affirm) that I will faithfully execute the office of president of the United States, and will to the best of my ability preserve, protect and defend the constitution of the United States." Const. art. 2, § 1.

(3) [And it is required both by the bill of rights, 1 W. and M. st. 2, c. 2, and the act of settlement, 12 and 13 W. III. c. 2, that every king and queen of the age of twelve years, either at their coronation, or on the first day of the first parliament upon the throne in the house of peers (which shall first happen), shall repeat and subscribe the declaration against popery according to the 30 Car. II, st. 2, c. 1.]