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,', is a most 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 antient 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 in 1679 limited it to thirty: whereof [ 230 ] 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 *. But since that time the number has been much augmented, and now continues indefinite (2). 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.

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-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,

i 4 Inst. 53.

* Temple's Mem. part 3.

(2) In the early part of Lord Clarendon's history, are some remarks on the great importance of wise appointments to the privy council; but that body was then much more like the modern cabinet council than the modern privy council, and every member might almost be considered a minister of the crown. At present those members only attend the deliberations, who are specially summoned, and the matters debated are comparatively of minor importance, or of a formal nature, so that no inconvenience results from the largeness of the number, or the greater facility with which the appointment is bestowed.

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, 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", 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 [231] 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.

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 ", 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

Stat. 12 & 13 Will. III c. 2. m 4 Inst. 54.

n3 P. Wms. 108.

council (3). 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 [232] in the same tribunal; which usually exercises it's 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 (abstracted from their honorary precedence °), 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. This extends only to the king's menial servants. But the statute 9 Ann. 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 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 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 of 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.

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 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 ", who wrote under Henry III., "ought not to be subject to [234]

a 7 Rep. 5.

b Tac, de mor. Germ. c. 7.

cl. 1. c. 8.