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to punish; and the persons committed by them are entitled to their habeas corpus by statute 16 Car. I. c. x_, 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 councillors, were dissolved; and it was declared illegal for them to take cognisance of any matter of property belonging to subjects of this kingdom." The privy council is, however, a court of appeal from the lord chancellor in all matters of lunacy and idiocy, which are delegated to him by royal sign manual.1
Appeals from the plantations and colonies, and other foreign possessions, are also heard and determined by the privy council,—or rather, to speak more correctly, they are decided by the queen in council; for that assembly can only advise the crown what decision to pronounce. The jurisdiction exercised by certain commissioners called delegates, by virtue of the statutes 25 Henry VIII. c. xix. and 8 Eliz. c. v., in all appeals from the ecclesiastical courts and the high court of admiralty, was transferred to the king in council by stat. 3 and 4> William IV. c. xli. By that statute a committee of privy council, called the judicial committee of the privy council, is formed. That committee consists of the lord president of the council, the lord chancellor, all persons who have held either of those offices, and all privy councillors holding or having held certain judicial offices, together with any two other privy councillors whom her majesty may be pleased to appoint . All appeals must be referred by the crown to that committee, who report thereon to her majesty; and they are decided by a decree of the queen in council. An original, besides this appellate jurisdiction, belongs to the queen in council, whenever a question arises 1 Grosvenor r. Drax, 1 Knapp. 82.
between two provinces in America or elsewhere, concerning the extent of their charters and the like; or where a person claims an island or a province, in the nature of feudal principality, by grant from the queen or her ancestors.1
The privileges of privy councillors as such (abstracted from their honorary precedence) consist principally in the security which the law has given them against attempts or conspiracies to destroy their lives. By stat. 3 Hen. VII. c . xiv., if any of the king's servants of his household conspire or imagine to take away the life of a privy councillor it is felony, though nothing be done upon it.2
The stat. 9 of queen Anne, c. xvi. goes further, and enaets, that any person that shall unlawfully attempt to kill, or shall unlawfully assault and strike or wound, any privy councillor, shall be a felon, without benefit of clergy. This statute, Blackstone tells us, was made upon the daring attempt of the Sieur Guiscard, who stabbed Mr. Harlev, afterwards earl of Oxford, with a penknife, when under examination for high treason, in a committee of the privy council.
The dissolution of the privy council depends upon the queens pleasure; and she may, whenever she thinks proper, discharge any particular member, or the whole of it, and appoint another. By the common law also it is dissolved ipso facto by the king's demise, as deriving all authority from him; but now, to prevent the inconvenience of having no council in being at the accession of a new prince, it is enacted by stat. 6 Anne, c. vii., that the privy council shall continue for six months after the demise of the crown, unless sooner determined by the successor.?
1 Blackst. Com. b. i c. v. p. 231.
3 Blackst. Com. b. i. c. v. p. 232.
A few words must be added concerning what is now known by the name of the cabinet council.1
Soon after the restoration of king Charles II., the ancient method of submitting all affairs of state to the privy council, there to be debated (for the most part in the king's presence), was first broken in upon, especially after the fall of Clarendon, a zealous asserter of the rights and dignity of that assembly.
The privy council was perhaps even then too numerous for the convenient and speedy despatch of public business; and its delays and hesitations were ill suited to the king's disposition and views. Thus it gradually became usual for the ministry or cabinet, composed of the persons holding certain offices, to obtain the king's approbation of their measures previous to their being laid, for a merely formal ratification, before the council. It was one object of Sir W. Temple's short-lived scheme, in 1679, to bring back the ancient method of proceeding.
During the reign of king William, the exclusion of the council from all business of state, which was transacted by the cabinet instead of being submitted to the former assembly, became more fully established. The effect of this change was very important; for the cabinet itself having no legal existence, and its members not being surely amenable to punishment in their mere capacity of privy councillors, which they share in modern times with many of their opponents, it is questionable, perhaps, whether there is any tangible character in cabinet ministers to which responsibility is attached, unless by a signature or the setting of a seal, the responsibility of a particular person for any measure can be proved.
This imperfection of the responsibility of cabinet ministers, as such, is dwelt upon by Mallam. It is, however, 1 Hallam, Const. Hist . vol . iii. p. 249, &c.
probable, that the principal members of the ministry would be presumed to be cognisant of the acts of the government; and again, that each cabinet minister would be presumed to have either advised the crown, or acquiesced in the advice given by his colleagues, at least in all matters within his particular department. Such presumptions must necessarily arise from the invariable practice in the administration of the affairs of state, which it would not be difficult to prove.
William III. is said, by Hallam, to have been less guided by responsible councillors than the spirit of our constitution requires. It was endeavoured to restore the ancient form of administration by the provision in the act of settlement, that, after the accession of the house of Hanover, all resolutions as to the government should be debated in the privy council, and signed by those present. That enactment was, however, repealed by stat. 4 Anne, c. viii., and 6 Anne, c. vii., and the plans of government are discussed and determined in a cabinet council, forming indeed part of the privy council, but unknown to the law by any distinct character or special appointment. But proclamations and orders still emanate, as the law requires, from the privy council; and, on some rare occasions, even of late years, matters of domestic policy have been referred to their advice. It is, however, the established practice for no privy councillor to attend unless specially summoned. But there is little doubt that every privy councillor is as responsible, for every measure which can be proved to have been adopted with his consent, as those who are called cabinet ministers.
OF THE QUEEN'S DUTIES.
It is a maxim in the constitutional law of England, that protection and subjection are reciprocal.1 Thus the queen's prerogative and dignity are established by the law of the land, in consideration of the duties which the constitution imposes on the sovereign.
It may, however, be doubted how far Blackstone is warranted in referring those reciprocal rights and obligations of the crown and the subject to an original contract .
It never has been shewn when and how such a contract was ever entered into. When king William accepted the crown in 1688, he no doubt became bound to perform the duties incumbent on a king of England; and the nation were at the same time placed under a corresponding obligation towards him. But this could not properly constitute an original contract. Every person accepting an office is bound to perform the duties thereof; but this obligation does not arise from a contract, because it does not spring from any consent given, but from a superior, extrinsic obligation. Every man undertaking the duties of an office, certainly does, by implication, engage to discharge those duties in a proper manner; but his obligation so to do is entirely independent of any consent or voluntary engagement on his part. Thus, a man compelled to accept an office, is just as much bound to per