COUNCIL, or COUNSEL, in a general sense, an assembly of divers considerable persons to concert measures relating to the state.
In Britain, the law, in order to assist the king in the discharge of his duties, the maintenance of his dignity, and the exertion of his prerogative, hath assigned him a diversity of councils to advise with.
1. The first of these is the high court of parliament. See PARLIAMENT.
2. 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 principal use, when there is no parliament in being. Accordingly, Bracton, speaking of the nobility of his time, says, they might properly be called, "confules a consulendo; reges enim tales sibi associant ad consulendum." And in the law-books it is laid down, that the peers are crea-
ted 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 assisting the king with their counsel for the common-wealth, or keeping the realm in safety by their prowess and valour.
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 Coke gives us an extract of a record, 5 Henry 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 assemble 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 ancient 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 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 mentions it as a new invention, not before heard of; that is, as he explains himself, so old, that it had not been practised in some hundreds of years. But though there had not for long before been an instance, nor has there been any since, of assembling 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 nobility as could easily be brought together: as was particularly the case with king James II. after the landing of the prince of Orange; and with the prince of Orange himself, before he called the convention parliament which afterwards called him to the throne.
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 presence and hearing of said Hugh the father, and Hugh the son, or one of them, and at their will, and according to such things as pleased them."
3. A third council belonging to the king, are, according to Sir Edward Coke, his judges of the courts of law, for law-matters. And this appears frequently in the English statutes, particularly 14 Edward 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; "according to the subject matter:" and if the subject be of a legal nature, then by the king's
Council. king's council is understood his council for matters of law; namely, his judges. Therefore, when by statute 16 Richard II. c. 5. it was made a high offence to import into England any papal bulls, or other process 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.
4. But the principal council belonging to the king is his privy council, which is generally, by way of eminence, called the council. And this, according to Sir Edward Coke's description of it, 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 was anciently twelve, or thereabouts. Afterwards it increased to so large a number, that it was found inconvenient for secrecy and dispatch; and therefore, king Charles II. in 1679, limited it to 30: whereof 15 were to be the principal officers of state, and those to be counsellors virtute officii; and the other 15 were composed of ten lords and five commoners of the king's choosing. 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 council was revived in the person of Anthony earl of Shaftesbury; an officer that by the statute of 31 Henry VIII. c. 10. has precedence next after the 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 the qualifications of members to sit at this board; any natural subject of England is capable of being a member of the privy council; taking the proper oaths for the security of government, and the test for security of the church. But, in order to prevent any persons under foreign attachments from infringing 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 tho' naturalized by parliament, shall be capable of being of the privy council.
The duty of a privy counsellor appears from the oath of office, 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, to observe, keep, and do all that a good and true counsellor ought to do to his sovereign lord.
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 intitled 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 star-chamber, 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 larceny and idioocy, 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 feudal sovereignty. And so likewise when any person claims an island or a province, in the nature of a feudal principality, by a 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 of 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 their report to his majesty in council, by whom the judgment is finally given.
The privileges of privy counsellors as such, consist principally in the security which the law has given them against attempts and conspiracies to take away their lives. For, by statute 3 Hen. VII. c. 14. if any of the king's servants of his household conspire 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 Coke 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 household servants, and great mischief was like to have ensued thereupon. This extends only to the king's menial servants. But the statute 9 Anne, c. 16. goes farther, and enacts, that any person that shall 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
Council. 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 its authority from him. But now, to prevent the inconveniences of having no council in being on 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.