Commentaries on the Laws of England Part 18

CHAPTER THE FIFTH.

OF THE COUNCILS BELONGING TO THE KING.

THE third point of view, in which we are to consider the king, is with regard to his councils. For, in order to a.s.sist him in the discharge of his duties, the maintenance of his dignity, and the exertion of his prerogative, the law hath a.s.signed him a diversity of councils to advise with.

1. THE first of these 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 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 princ.i.p.al use, when there is no parliament in being[a]. Accordingly Bracton[b], speaking of the n.o.bility of his time, says they might properly be called "_consules, a consulendo; reges enim tales sibi a.s.sociant 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 a.s.sisting the king with their counsel for the commonwealth; or keeping the realm in safety by their prowess and valour.

[Footnote a: Co. Litt. 110.]

[Footnote b: _l._ 1. _c._ 8.]

[Footnote c: 7 Rep. 34. 9 Rep. 49. 12 Rep. 96.]

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 c.o.ke[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 a.s.semble 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 a.s.sembling 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 n.o.bility 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.

[Footnote d: 1 Inst. 110.]

[Footnote e: Hist. b. 2.]

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 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]."

[Footnote f: 4 Inst. 53.]

3. A THIRD council belonging the king, are, according to sir Edward c.o.ke[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].

[Footnote g: 1 Inst. 110.]

[Footnote h: 3 Inst. 125.]

4. BUT the princ.i.p.al 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 c.o.ke's description of it[i], is a n.o.ble, honorable, and reverend a.s.sembly, 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 const.i.tuent 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 princ.i.p.al 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.

[Footnote i: 4 Inst. 53.]

[Footnote k: Temple's Mem. part 3.]

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.

THE _duty_ of a privy counsellor appears from the oath of office[l], 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.

[Footnote l: 4 Inst. 54.]

THE _power_ of the privy council is to enquire into all offences 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 ent.i.tled 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, a.s.sisted by his privy council.

AS to the _qualifications_ of members to sit 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. 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.

[Footnote m: Stat. 12. & 13 W. III. c. 2.]

THE _privileges_ of privy counsellors, as such, consist princ.i.p.ally 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 c.o.ke[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 a.s.sault, 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.

[Footnote n: 3 Inst. 38.]

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 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.

CHAPTER THE SIXTH.

OF THE KING'S DUTIES.

I PROCEED next to the duties, inc.u.mbent on the king by our const.i.tution; 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 princ.i.p.ally 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 has reigned since the year 1688.

[Footnote a: 7 Rep. 5.]

THE princ.i.p.al duty of the king is, to govern his people according to law. _Nec regibus infinita aut libera potestas_, was the const.i.tution of our German ancestors on the continent[b]. And this is not only consonant to the principles 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 G.o.d, 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 G.o.d, 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 a.s.serts 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 by his majesty, by and with the advice and consent of the lords spiritual and temporal and commons, and by authority of the same, ratified and confirmed accordingly."

[Footnote b: _Tac. de M.G._ _c._ 7.]

[Footnote c: _l._ 1. _c._ 8.]

[Footnote d: _l._ 2. _c._ 16. --. 3.]

[Footnote e: _c._ 9. & 34.]

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. & M. st. 1. c. 6. is to be administred 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 G.o.d, 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 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 here before promised I will perform and keep: so help me G.o.d. _And then shall kiss the book._"