whereof fifteen were to be the principal officers of ftate, and thofe to be counfellors, virtute officii; and the other fifteen. were compofed of ten lords and five commoners of the king's choofing. But fince that time the number has been much augmented, and now continues indefinite (1.) At the fame time alfo the antient office of lord prefident of the council was revived in the perfon of Anthony earl of Shaftsbury (2); an officer, that by the ftatue 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 neceffary oaths, they become immediately privy counfellors during the life of the king that choofes them, but fubject to removal at his difcretion. As to the qualifications of members to fit at this board: any natural born fubject of England is capable of being a member of the privy council; taking the proper oaths for fecurity of the government, and the teft for fecurity of the church. k Temple's Mem. part 3. (1) No inconvenience arifes from the extenfion of their numbers, as thofe only attend who are specially fummoned for that particular occafion upon which their advice and affiftance are required. The cabinet council, as it is called, confits of those minifters of flate who are more immediately honoured with his majesty's confidence, and who are fummoned to confult upon the important and arduous difcharge of the executive authority: their number and felection depend only upon the king's pleafure; and each member of that council receives a fummons or message for every attendance. (2) It appears from the 4 Inft. 55. that this office exifted in the time of Ja. 1; for lord Coke fays, there is, and of antient time hath been, a prefident of the council. This office was never granted but by letters patent under the great seal durante beneplacito, and is very ancient; for John bifhop of Norwich was prefident of the council in anno 7 regis Johannis. Dormivit tamen hoc officium regna e magna Elizabethâ, 230 But, in order to prevent any perfons under foreign attachments from infinuating themselves into this important trust, as happened in the reign of king William in many inftances, it is enacted by the act of fettlement', that no perfon born out of the dominions of the crown of England, unless born of English parents, even though naturalized by parliament, fhall be capable of being of the privy council. THE duty of a privy counsellor appears from the oath of office", which confifts 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 counfel fecret. 4. To avoid corruption. 5. To help and strengthen the execution of what fhall be there refolved. 6. To withstand all perfons who [ 231 ] would attempt the contrary. And, lastly, in general, 7. To obferve, keep and do all that a good and true counsellor ought to do to his fovereign lord. THE power of the privy council is to inquire into all of fences against the government, and to commit the offenders to fafe cuftody, in order to take their trial in some of the courts of law. But their jurifdiction herein is only to inquire, and not to punish: and the perfons committed by them are intitled to their habeas corpus by ftatute 16 Car. I. c. 10. as much as if committed by an ordinary justice of the peace. And, by the fame ftatute, the court of ftarchamber, and the court of requests, both of which confifted of privy counsellors, were diffolved; and it was declared illegal for them to take cognizance of any matter of property, belonging to the fubjects of this kingdom. But, in plantation or admiralty causes, which arife out of the jurifdiction of this kingdom; and in matters of lunacy or idiocy", being a fpecial flower of the prerogative, with regard to thefe, although they may eventually involve queftions of extensive property, Stat. 12 & 13 Will. III. c. 2. 4 loft. 54. n3 P. Wms. 10S. the [232] the privy council continues to have cognizance, being the court of appeal in fuch cafes: or, rather, the appeal lies to the king's majefty himfelf in council (3). Whenever alfo a queftion arifes between two provinces in America or elfewhere, as concerning the extent of their charters and the like, the king in his council exercises original jurisdiction therein, upon the principles of feodal fovereignty. And fo likewife when any perfon claims an ifland 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 cafe 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 reprefentatives 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 laft refort) is veiled in the fame 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 majefty in council, by whom the judgment is finally given (4). THE privileges of privy counsellors, as fuch, (abstracted from their honorary precedence o,) confist principally in the fecurity which the law has given them against attempts and confpiracies to deftroy their lives. For, by ftatute 3 Hen. VII. c. 14. if any of the king's fervants, of his houfhold, confpire or imagine to take away the life of a privy counsellor, • See page 405. (3) This is, in fact, a court of juftice, which must confift of at least three privy counsellors. (4) The court of privy council cannot decree in perfonam in England, unless in certain criminal matters; and the court of chancery cannot decree in rem out of the kingdom. See Lord Hardwicke's Arg. in Pen v. Baltimore, 1 Vef. 444. where the jurisdiction of the council and chancery, upon queftions arifing upon subject matter abroad, is largely difcuffed. 232 it is felony, though nothing be done upon it. The reason of making this ftatute, fir Edward Coke P tells us, was because fuch a confpiracy was, just before this parliament, made by fome of king Henry the feventh's houfhold fervants, and great mischief was like to have enfued thereupon. This extends only to the king's menial fervants. But the ftatute 9 Ann. c. 16. goes farther, and enacts, that dny person that shall unlawfully attempt to kill, or fhall unlawfully affault, and strike, or wound, any privy counsellor in the execution of his office, fhall be a felon without benefit of clergy. This ftatute was made upon the daring attempt of the fieur Guifcard, 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 diffolution 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 alfo it was diffolved ipfo 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 fhall continue for fix months after the demife of the crown, unless fooner determined by the fucceffor. OF THE KING'S DUTIES. PROCEED next to the duties, incumbent on the king by our constitution; in confideration 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. 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 fome measure disputed, being alleged to exift principally in theory, and to be only deducible by reafon and the rules of natural law; in which deduction different understandings might very confiderably differ; was, after the revolution, judged proper to declare these duties exprefsly, 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 fuch an original contract, they must now entirely ceafe; efpecial ly with regard to every prince, who hath reigned fince the year 1688. THE principal duty of the king is, to govern his people according to law. Nec regibus infinita aut libera poteftas, was the constitution of our German ancestors on the continent. And this is not only confonant to the principles of nature, of [234] liberty, of reafon, and of fociety, but has always been efteemed an exprefs part of the common law of England, even when prerogative was at the higheft. "The king," faith Bracton, who wrote under Henry III, "ought not to be $ 7 Rep. 5. b Tac. de mor, Germ. s. 7. cl. 1. c. 8. 66 « fubject |