.P 220
The RIGHTS of PERSONS.
BOOK I.
CHAPTER THE FIFTH.
OF THE COUNCILS BELONGING TO THE KING.
THE third point of view, in which we are to confider the king, is with regard to his councils. For, in order to affift him in the difcharge of his duties, the maintenance of his dignity, and the exertion of his prerogative, the law hath affigned him a diverfity of councils to advife with.
1. THE firft of thefe is the high court of parliament, whereof we have already treated at large.
2. SECONDLY, the peers of the realm are by their birth hereditary counfellors 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 ufe, when there is no parliament in beinga. Accordingly Bractonb, fpeaking of the nobility of his time, fays they might properly be called “confules, a confulendo; reges enim tales fibi affociant ad confulendum.” And in our law booksc it is laid down, that peers are created for two reafons; 1. Ad confulendum, 2. Ad defendendum regem: for which reafons the law gives them certain great and high privileges; fuch as freedom from arrefts, &c, even when no parliament is fitting: becaufe the law
.{FS}
a Co. Litt. 110.
b l. 1. c. 8.
c 7 Rep. 34. 9 Rep. 49. 12 Rep. 96.
.{FE}
intends,
.P 221
The RIGHTS of PERSONS.
BOOK I.
Ch. 5.
intends, that they are always affifting the king with their counfel for the commonwealth; for keeping the realm in fafety by their prowefs and valour.
INSTANCES of conventions of the peers, to advife the king, have been in former times very frequent; though now fallen into difufe, by reafon 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 fettled by advice of parliament (if any fhould be called before the feaft of St 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 king of meeting 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 majefty at York, previous to the meeting of the long parliament, the earl of Clarendone mentions it as a new invention, not before heard of; that is, as he explains himfelf, 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 eafily 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 himfelf, before he called that convention parliament, which afterwards called him to the throne.
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
.{FS}
d 1 Inft. 110.
e Hift. b. 2.
.{FE}
refpect,
.P 222
The RIGHTS of PERSONS.
BOOK I.
Ch. 5.
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 againft the two Hugh Spencers, father and fon, for which they were banifhed the kingdom, “that they by their evil covin would not fuffer the great men of the realm, the king's good counfellors, to fpeak with the king, or to come near him; but only in the prefence and hearing of the faid Hugh the father and Hugh the fon, or one of them, and at their will, and according to fuch things as pleafed themf.”
3. A THIRD council belonging the king, are, according to fir Edward Cokeg, his judges of the courts of law, for law matters. And this appears frequently in our ftatures, particularly 14 Ed. III. c. 5. and in other books of law. So that when the king's council is mentioned generally, it muft be defined, particularized, and underftood, fecundum fubjectam materiam; and, if the fubject be of a legal nature, then by the king's council is underftood his council for matters of law; namely, his judges. Therefore when by ftatute 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 anfwer for fuch offence; here, by the expreffion of king's council, were underftood the king's judges of his courts of juftice, the fubject 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 fir Edward Coke's defcription of iti, is a noble, honorable, and reverend affembly, of the king and fuch as he wills to be of his privy council, in the king's court or place. The king's will is the fole conftituent of a privy coun-
.{FS}
f 4 Inft. 53.
g 1 Inft. 110.
h 3 Inft. 125.
i 4 Inft. 53.
.{FE}
fellor;
.P 223
The RIGHTS of PERSONS.
BOOK I.
Ch. 5.
fellro; and this alfo regulates their number, which of antient time was twelve or thereabouts. Afterwards it increafed to fo large a number, that it was found inconvenient for fecrefy and difpatch; and therefore king Charles the fecond in 1679 limited it to thirty: whereof fifteen were to be the principal officers of ftate, and thofe to be counfellors, virtute officii; and the other fifteen were compofed of ten lords and five commoners of the king's choofingk. But fince that time the number has been much augmented, and now continues indefinite. At the fame time alfo, the antient office of lord prefident of the council was revived in the perfon of Anthony earl of Shaftsbury; an officer, that by the ftatute of 31 Hen. VIII. c. 10. has precedence next after the lord chancellor and lord treafurer.
PRIVY counfellors are made by the king's nomination, without either patent or grant; and, on taking the neceffary oaths, they become immediately privy counfellors during the life of the king that choofes them, but fubject to removal at his difcretion.
THE duty of a privy counfellor appears from the oath of officel, which confifts of feven articles: 1. To advife the king according to the beft 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 fhall be there refolved. 6. To withftand all perfons who would attempt the contrary. And, laftly, in general, 7. To obferve, keep, and do all that a good and true counfellor ought to do to his fovereign lord.
THE power of the privy council is to enquire into all offences againft the government, and to commit the offenders into cuftody, in order to take their trial in fome of the courts of law. But their jurifdiction is only to enquire, and not to punifh: and the perfons committed by them are entitled to their habeas corpus by
.{FS}
k Temple's Mem. part 3.
l 4 Inft. 54.
.{FE}
ftatute
.P 224
The RIGHTS of PERSONS.
BOOK I.
Ch. 5.
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 requefts, 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 fubjects of this kingdom. But, in plantation or admiralty caufes, which arife out of the jurifdiction of this kingdom, and in matters of lunacy and ideocy (being a fpecial flower of the prerogative) with regard to thefe, although they may eventually involve queftions of extenfive property, the privy council continues to have cognizance, being the court of appeal in fuch caufes: or, rather, the appeal lies to the king's majefty himfelf, affifted by his privy council.
AS to the qualifications of members to fit this board: any natural born fubject of England is capable of being a member of the privy council; taking the proper oaths for fecurity of the government, and the teft for fecurity of the church. But, in order to prevent any perfons under foreign attachments from infinuating themfelves into this important truft, as happened in the reign of king William in many inftances, it is enacted by the act of fettlementm, that no perfon born out of the dominions of the crown of England, unlefs born of Englifh parents, even though naturalized by parliament, fhall be capable of being of the privy council.
THE privileges of privy counfellors, as fuch, confift principally in the fecurity which the law has given them againft attempts and confpiracies to deftroy their lives. For, by ftatute 3 Hen. VII. c. 14. if any of the king's fervants, of his houfhold, confpire or imagine to take away the life of a privy counfellor, it is felony, though nothing be done upon it. And the reafon of making this sfatute, fir Edward Coken tells us, was becaufe fuch fervants have greater and readier means, either by night or by day, to deftroy fuch as be of great authority, and near about the
.{FS}
m Stat. 12 & 13 W. III. c. 2.
n 3 Inft. 38.
.{FE}
king:
.P 225
The RIGHTS of PERSONS.
BOOK I.
Ch. 5.
king: and 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 perfons that fahll unlawfully attempt to kill, or fhall unlawfully affault, and ftrike, or wound, any privy counfellor in the execution of his office, fhall be felons, and fuffer death as fuch. 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 pleafure; 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, unlefs fooner determined by the fucceffor.
E e