council. three times in every year, wherever the king held his Ordinary court." The king's ordinary' or 'continual' council was equivalent to that which was known, in later times, as the Privy Council. But, apart from the fact that one was temporary and occasional, and the other permanent, there seems at first to have been but little difference between this body and the other principal councils. Leading nobles were members of the continual' council, and at meetings of the great council they naturally occupied a prominent place, either as members or assistants of that august assembly. The permanent council under the early Norman kings consisted of the great officers of state-namely, the chancellor, the great justiciary, the lord treasurer, the lord steward, the chamberlain, the earl marshal, the constable, -and any other persons whom the king chose to appoint. It also included the archbishops of Canterbury and of York, who claimed the right to form part of every royal council, whether public or private. Besides these persons, there were occasionally present, the comptroller of the household, the chancellor of the exchequer, the judges, the king's serjeant, &c. This body was then known as the curia regis, otherwise styled the aula regia, or court of the king, and its powers were immense and undefinable. Its duty was to assist the king in the exercise of his royal prerogatives, and to give its sanction to acts done by him in virtue of those prerogatives-the members thereby making themselves responsible for the acts of the king. Thus, it was the executive. It acted also Hale, Jurisdiction of House of Lords, pp. 5-9; First Lords' Report, pp. 20-23. с Macqueen says (pp. 673, 674) that it was by a distribution of its business to subordinate committees that the functions of the Privy Council, in all ages, were performed.' The legal committee, above mentioned, afterwards developed into a separate 'council learned in the law,' of which the only remains left at the present day is in the titular distinction of Queen's Counsel, accorded to leading members of the legal profession (see Hearn, Govt. of Eng. pp. 295297), while the functions of this body are now fulfilled by the Judicial Committee of the Privy Council. (See post, p. 625.) a First Lords' Report, p. 21. ,е as a court of law. It took part in acts of legislation. In fact, the king, who was at once the ruler and judge of the whole nation, exercised the powers which he possessed, either directly (and this he did to a greater extent than modern students are apt to suppose) or indirectly, through the instrumentality of his great officers.' For in considering the interchange of advice between the king and his nobles' during this period, we must divest ourselves of modern notions of constitutional authority, and understand that, according to the ideas prevailing in the eleventh century, it was rather the king's privilege than his duty to receive counsel from the great men of his kingdom. Their recommendations were not, like the advice of modern parliaments or ministers, commands veiled under a polite name, but in the strictest sense counsel; nevertheless, there were certain things which the king was never able to accomplish by his mere prerogative. Thus, he could neither legislate, nor impose new taxes, without the consent of his Parliament. And he was bound to rule in accordance with the laws of the realm; and if he broke those laws, his agents or advisers were, from a very early period, in some shape or other, held accountable for his misdeeds to the national assembly. Moreover, it was the right and duty of the king to demand and receive advice from his great council under all circumstances of difficulty; a safeguard which the nation always jealously maintained, even though the supreme will of the monarch should be afterwards enforced, in accordance with his acknowledged prerogative. Always remembering, however, that the king of A.D. 1250. England was never an absolute monarch, but was himself The Privy Council: the Arnold Prize Essay, 1860. By A. V. Dicey, B.A. pp. 3-6.-This able essay presents, in a popular form, the results of the researches of Sir Harris Nicolas, in his learned prefaces to the 'Proceedings and Ordinances of the Privy Council of England,' from 10 Richard II. (1386) to 33 Henry VIII. Macaulay, Hist. of England, vol. A.D. 1199. Law Courts. subject to the law. Bracton, writing in the thirteenth h In process of time the character of the aula regia underwent considerable modification. Each individual officer of the court had his own particular duties assigned to him. All business brought before the court would naturally be referred by the king to the functionary specially charged with the same. Thus, the marshal or constable, assisted probably by other members of the court, attended to military matters; the chamberlain to financial concerns; the chancellor to questions affecting the royal grants. Hence arose, by degrees, the separate institution of curia regis, under Henry II.-as an offshoot from the larger body-into a distinct judicial tribunal, which is the original of the present Court of Queen's Bench, and the subsequent development, at a later period, of other courts of law and equity. The first establishment of the law-courts, as distinct tribunals, took place, however, in the reign of King John. But it is worthy of notice that, notwithstanding the formation of separate courts for the administration of justice, Quoted by Forster, Debates on Grand Remonstrance, p. 28. And see ante, vol. i. p. 168. h Allen, Royal Prerogative, p. 159; First Lords' Report, p. 22. i Bagehot, Eng. Const. Fortnightly Review, Jan. 7, 1867, p. 80. Chron. of Reigns of Hen. II. and Richard I. edited by Stubbs, vol. ii. pp. lxxi.-lxxx.; and see Hearn, Govt. of Eng. pp. 266-271. the king's council continued to exercise judicial authority. To be the source and dispenser of justice, and to supply the defects and moderate the judgments of inferior courts, is an ancient prerogative of the crown. This prerogative was ordinarily exercised through judges, in accordance with established precedent; but it was still regarded as within the power of the king to try suits, either by his own authority, or through the officers of his council.i m With the accession of Edward I. still more important A.D. 1272. changes commenced. The contemporaries of the Conqueror and his immediate descendants had been accustomed to the exercise of justice by the king and his great officers, after a rude and informal fashion. Meanwhile, the ordinary councils of King John and of Henry III. were largely influenced by the growing power of the barons, which operated as a restraint upon the arbitrary power of the sovereign. But when Edward I. assumed the throne, a better understanding began to prevail between the monarch and his advisers. The rise of the law-courts out of the curia regis begat, in the people generally, a desire for more orderly government. Those who contrasted the regular administration of justice with the irresponsible and uncertain procedure before the king's council, longed for something more in accordance with their ancient Saxon liberties." For the functions of the or- Ordinary dinary council at this time seem to have been coexten- council. sive with the functions of the crown. Its consent appears to have been deemed necessary to every important act of the king in the exercise of his legislative as well as of his executive powers. It was evidently then considered as a very important part of the government, responsible to the king and the country for the acts done under its sanction; and the people often took great interest in its * See Palgrave, Eng. Commonwealth, vol. i. p. 283. 1 Dicey, p. 8. m Palgrave, King's Council, p. 19. n Dicey, p. 11. Great council. proper formation, of which there are striking instances in the reigns of Henry III. and Edward II.' P Contemporaneously with these events, the great council' was steadily undergoing transformation, and assuming definite shape as a legislative body, with acknowledged rights and privileges. Formerly, as we have seen, the great council did not differ very materially from the smaller and more confidential assembly. The functions of both were chiefly administrative. The councils of William I. and his immediate successors, so far as existing records shew, were principally occupied with matters of executive government-such as the grant of local charters, and the settlement of titles to land. The king could do nearly everything in his 'ordinary council' that was lawful for the great council to effect, except impose taxes. William the Conqueror, in ascending the throne of England, had expressly renounced all right to tax the nation without the consent of the commune concilium regni; and had promised to govern by the old laws, except as they might be altered expressly for the general good. It is true that he had not been faithful to his word. But every formal concession on the part of the crown contributed somewhat to the growth and establishment of the great national council upon a firmer basis. And the continual and ever-increasing necessities of the state compelled the Norman sovereigns to yield, however reluctantly, new charters, with extended privileges, to their powerful but insubordinate nobility. Thus the lawless barons won for a down-trodden and spiritless people precious franchises, that in due time should elevate the national character, and 'so balance the forces existing in the state as to give to each its opportunity of legitimate development.' • First Lords' Report, p. 451; Taylor, Book of Rights, p. 9. r Professor Stubbs's Preface to the Chronicle of Benedict of Peterborough (Rolls Chronicles, published in 1867), vol. ii. p. xxxvii. |