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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 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 st. 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 council.(h)2

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 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 dispatch; and *therefore king Charles the Second, 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 ancient office of lord president of the

(S) 4 Inst. 53.
(a) 1 Inst. 110.
(*) 3 Inst. 125.

() 4 Inst. 53.

(*) Temple's Mem. part 3.

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"The king's power to consult the judges extra-judicially, although not without precedent in former times, is now much disputed, and has of late rarely been exercised.STEWART.

The passage referred to in the 3 Inst. is no authority for the interpretation given to the word "council" in the statute of Richard; for it is a comment on the statute of præmunire, 27 Edw. III, st. 1, c. 1, where the word seems used in the same sense as in the first-mentioned statute, and in which lord Coke states that it cannot mean the judges. The truth is, I believe, 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 starchamber were derived. Its history has never been satisfactorily traced, nor its jurisdiction and functions clearly distinguished from those of the council of the peers or the great council in parliament. Perhaps it is too late to expect that this can ever be now done so as to free the subject from all doubts; but I have reason to hope that very great light will be thrown upon it, and therein upon the origin of all equitable jurisdiction in this country, by a gentleman who is devoting himself to the legal antiquities of the country with an industry and intelligence that promise to overcome great difficulties.-COLEridge.

Subsequent researches have fully justified Mr. Justice Coleridge's opinion. Reports of the Committee on the Privileges of the Peerage, passim. Sir Harris Nicolas's "Proceedings and Ordinances of the Privy Council of England," printed under the direction of the Commissioners of the Public Records. Hallam's Const. Hist. vol. i. chap. 1.—KERR. 3 No inconvenience arises from the extension of their members, as those only attend

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 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.5 But, in order to prevent any person 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 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 withstand all *231] persons who shall 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.

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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 honoured 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 summons or message for every attendance.CHRISTIAN.

The nomination of particular persons to hold offices of state is virtually to constitute them members of the cabinet or cabinet-ministers,-that is to say, the administration. Thus, by "The Cabinet" or "Administration" is generally understood the lord president of the council, the lord high-chancellor, the lord privy seal, the first lord of the treasury, the chancellor and under-treasurer of the exchequer, the first lord of the admiralty, the master general of the ordnance, the secretaries of state for the home department, colonies, and foreign affairs, the president of the board of control for the affairs of India, the chancellor of the duchy of Lancaster, and the president of the board of trade. But even of these great officers the attendance of all of them is not, I believe, always required, but only secundum subjectam materiam to be agitated.-CHITTY.

It appears from the 4 Inst. 55 that this office existed in the time of James 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 magnâ Elizabethâ.-CHRISTIAN.

5 The sacramental test, as a qualification for certain offices, is repealed by the stat. 9 Geo. IV. c. 17, and stat. 2 Gul. IV. c. 7, and a declaration substituted in lieu thereof, by which the party professes, upon the true faith of a Christian, that he will never exercise any power, authority, or influence which he may possess, by virtue of his office, to injure or weaken the protestant church as it is by law established in England, or to disturb the said church, or the bishops and clergy of the said church, in the possession of any rights or privileges to which such church, or the said bishops and clergy, are or may be by law entitled.

By the statute of 10 Geo. IV. c. 7 the necessity of making any declaration against transubstantiation, invocation of saints, and the sacrifice of the mass as practised in the church of Rome, as a qualification for the exercise or enjoyment of any office or civil right, is repealed; and instead of the oaths of allegiance, supremacy, and abjuration, as qualifications for holding civil or military offices, Roman Catholics are required to take the oath set forth in the said act.-HOVEDEN.

OF PERSONS.

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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 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 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. 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 judicial authority in a committee of the whole privy council, who hear the allegations and proofs, and make [*232 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. But the statute 9 Anne, c. 16, goes further, and enacts that any person that shall This extends only to the king's menial servants. 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.

The dissolution of the privy council depends upon the king's pleasure; and he

(") 3 P. Wms. 108.

(*) See page 405.

(P) 3 Inst. 38.

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 Penn vs. Baltimore, 1 Ves. 444, where the jurisdiction of the council and chancery, upon questions arising upon subject matter abroad, is largely discussed. The master of the rolls and the judge of the admiralty court are usually members of this committee.-CHRISTIAN.

The jurisdiction and IV. c. 41, which created "the judicial committee of the privy council." This committee power of the privy council were entirely remodelled by 3 & 4 Wm. is composed of the president of the council, the lord chancellor, the two chief justices and chief baron, master of the rolls, vice-chancellor, and other judicial officers. It 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.-HARgrave.

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 Anne, c. 7 that the privy council shall continue for six months after the demise of the crown, unless sooner determined by the successor.

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: 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 1688.1

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 principles of *234] 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

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1 The duties of the President of the United States are summarily prescribed in the constitution. Art. 2, s. 3:-" He shall from time to time give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient. He may, on extraordinary occasions, convene both houses, or either of them; and, in case of disagreement between them with respect to the time of adjournment, he may adjourn them to such time as he shall think proper. He shall receive ambassadors and other public ministers. He shall take care that the laws be faithfully executed; and shall commission all the officers of the United States.” And by sec. 1, § 8, “before he enter on the execution of his office, he shall take the following oath or affirmation :-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."

It is unnecessary to remind the American student that the chief executive magistrate is but the agent or servant by whom the will of the States and people, as expressed in the constitution and the laws made in pursuance thereof, is carried into effect. It is a fundamental error, into which Blackstone as well as other political writers, have fallen to consider the social or original contract as an agreement to which the parties are the governors of the one part and the governed of the other part. It is a compact between the different members composing the society, individuals if the society forms a state, states if it is a confederacy; and the governors are but agents, whose mode of appointment, continuance, powers, and duties are prescribed in the frame of government.SHARSWOOD.

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 & 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 [*235 statute 1 W. and M. st. 1, c. 6, is to be administered to every king and 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? And will you preserve unto the bishops and clergy of this realm, and 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 here before promised I will perform and keep: so help me God:" and then shall kiss the book.3

This is the form of the coronation oath, as it is now prescribed by our laws; the principal articles of which appear to be at least as ancient as the mirror of justices,(f) and even as the time of Bracton;(g) but the wording of it was changed at the revolution, because (as the statute alleges) the oath itself *had been framed in doubtful words and expressions with relation to

[*236

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This is also well and strongly expressed in the year-books:-La ley est le plus haute inheritance que le roy ad; car par la ley il même et touts ses sujets sont rulés, et si le ley ne fuit, nul roi et nul inheritance sera.-19 Hen. VI. 63.

In English: The law is the highest inheritance which the king has; for by the law he himself and all his subjects are governed, and if there were no law, there would be neither king nor inheritance.-CHRISTIAN.

And it is required both by the bill of rights, 1 W. and M. st. 2, c. 2, and the act of settlement, 12 & 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.-CHRISTIAN.

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