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OF THE COUNCILS BELONGING TO THE QUEEN.
The constitution has provided the queen with a diversity of councils, in order to assist her majesty in the discharge of her duties, the maintenance of her dignity, and the exercise of her prerogative.
The first of these is the high court of parliament, whereof we have already treated, which is the greatest and highest council of advice and deliberation.1 Secondly, the peers of the realm are hereditary councillors of the crown, and may, as Blackstone informs us, be called together by the crown to impart their advice in all matters of importance to the realm, either in time of parliament, or when there is no parliament in being.2 Accordingly Bracton,3 speaking of the nobility of his time, says they might properly be called consules a consulendo; reges enim tales sibi associant ad consulendum. And it is laid down in Coke's Reports, that peers are created for two reasons: 1. ad conmlendum; 2. defendendum regem:* on which account the law gives them certain great and high privileges, such as freedom from arrest in civil suits even when no parliament is sitting, because it intends that they are always assisting the queen with their counsel for the commonwealth, or keeping the realm in safety by their prowess and valour.5
1 Hale, Jurisd. of the House of Lords, c. ii. p. 9.
4 7 Rep. 34; 9 Rep. 49; 12 Rep. 96.
On the same principles, every peer of the realm is privileged to demand an audience of the queen, and to lay before her, in a respectful manner, such matters as he judges to be of importance for the public welfare.1 This privilege extends, by the construction of the acts of union, to peers of Scotland and Ireland, though they be not representative peers.
In former times the kings of England frequently convoked what is called, by lord Hale, the magnum consilium out of parliament, and, by Blackstone, a convention of peers. It was commonly summoned upon some emergent occasion, that, either in respect of the suddenness would not admit of the delay necessary for the summoning of parliament, or in respect of its nature needed it not, or was intended as preparative to it. "But these grand councils," says lord Hale, "have been rarely summoned of late years; business of state being usually despatched by the privy council, and, if of very great importance, in parliament. The only grand council that hath been in my remembrance was that at York, at the coming in of the Scots."2 The council alluded to by lord Hale was summoned by writs under the great seal, directed to all the peers, by king Charles I. in 164-0; and lord Clarendon speaks of it as an assembly which had not been convoked for a very long time.3
Blackstone informs us that there are many instances, in cases of emergency, of our princes calling for and consulting as many of the nobility as could be conveniently got together; as was particularly the case with king
1 See the case of the two Hugh Spencers, in the reign of Ed. II., one of the articles of impeachment against whom was, for preventing the nobles and other councillors having access to the king to give him advice. 4 Inst . 32.
2 Hale, Jurisd. of Ho. of Lords, c. ii. p. 7, 8. Co. Litt . 110 a.
3 Clar. Hist. b. ii
James II., after the landing of the Prince of Orange; and with the Prince of Orange himself before he convoked that convention-parliament which afterwards called him to the throne.1
A third council belonging to the queen are, according to lord Coke, her judges of her courts of law, for lawmatters. And this appears frequently in our statutes, particularly 14 Ed. III. c. v., and in other books of law. "So that when the king's council is mentioned generally," says Blackstone, in the words of Coke, "it must be defined, particularised, and understood, according to the subject-matter; 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."2
It may, however, be very dangerous for the judges to give opinions, on being consulted by the crown, touching matters which may come before them in their judicial capacity. A judge who has given a solemn opinion is liable to feel unwilling, whenever the same question comes before him, to acknowledge that his opinion was erroneous, though such may appear to be the fact when the matter comes to be fully argued before the court, by counsel, in the course of a judicial proceeding. However numerous and strong the precedents may be in favour of the crown extra-judicially consulting the judges on questions in which it is interested, it is a right to be understood with many exceptions, and such as ought to be exercised with great reserve, lest the rigid impartiality so essential to their judicial capacity should be violated.3
1 Blackst . Com. b. i. c. v. p. 228.
» Co. Litt . 110 a. Coke says, that " the king's judges of his courts of law are said to be of his council for proceedings in course of justice." 3d Inst . p. 125; and see Co. Litt. 304 a. But this may refer to their judicial, and not to their extra-judicial opinions.
1 Co. Litt . 110 a. n. 5. (Hargrave). And see the cases cited there.
The principal council belonging to the queen is her privy council, which is generally called, by way of eminence, the council.
"This," says Coke,1 "is a most noble, honourable, and reverend assembly of the king and his privy council, in the king's court or palace: with this council the king doth sit at his pleasure. The number of them is at the king's will; but of ancient time there were twelve or thereabouts." Afterwards the number of privy councillors increased so much, that it was found inconvenient for secrecy and despatch; and therefore king Charles II., in 1679, limited it to thirty, whereof fifteen were to be the principal officers of state, and those were to be councillors by virtue of their offices; and the other fifteen were composed of ten lords and five commoners of the king's choosing.2 But since that time the number has been much augmented, and now continues indefinite.
The president of the council, who is the third3 great officer of state, was sometimes called principalis consiliarius, and sometimes capitalis consiliarius, and is appointed by letters patent under the great seal. His duty, besides that of a privy councillor, is to report to the queen whatever takes place at the council-table when she is not present; and, by stat. 31 Henry VIII. c. x., he has precedence next after the lord chancellor and lord treasurer, and before the lord privy seal.4
1 4 Inst. c. ii. p. 53. 2 Temple's Mem. part 3.
3 Cruise, Dig. (vol. iii.) tit. xxv. § 4.
4 4 Inst. c. ii. p. 55. By the stat. 81 Hen. VIII. c. x. § 10, the great officers of state are to sit in the council in the following order: 1. the lord chancellor or lord keeper; 2. the lord treasurer; 3. the lord president; 4. the lord privy seal; 5. the lord chamberlain of England; 6. the lord high constable; 7. the earl marshal; 8. the lord high admiral; 9. the lord steward of the household; 10. the lord chamberlain of the household.
Privy councillors are made by the queen's nomination, without either patent or grant; and, on taking the necessary oaths, they become immediately privy councillors during the life of the sovereign that chooses them, and for six months after his decease, but subject to removal at the pleasure of the crown.
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; but, in order to prevent persons under foreign authority and influence from holding so important a trust, it is enacted by the act of settlement (stat . 12 and 13 Wm. III. c. ii.), that no person born out of the dominions of the crown of England, unless born of English parents, even though naturalised by parliament, shall be capable of being a privy councillor.
The duty of a privy councillor appears from the oath of office,1 which consists of seven heads:— 1. To advise the queen according to the best of his cunning and discretion. 2. To advise for the queen's honour and the good of the public, without partiality through affection, love, meed, doubt, or dread. 3. To keep the queen'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 true and good councillor ought to do to his sovereign lady.
The power of the privy council is, as Blackstone informs us, 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 i 4 Inst. 54.