6 not be done without the assent of the members of the council; and if the council shall advise the king, or do other thing which shall not be for the profit of him and his realm, then, at the next Parliament, by the advice of the king and his friends, they shall be removed.' The entry on the roll concludes with these emphatic words, which show that the order in the present case was the general and acknowledged rule under similar circumstances: And so it shall be, from Parliament to Parliament, as to them and every of them, according to the faults found in them." Nearly one hundred years later, in the reign of Henry A.D. 1406. IV., we meet with a similar instance of the acknowledgment of the right of a minister of state to relinquish his office, without offence to the king, when he found himself unable to continue to discharge the same to the public welfare. It is thus noted by Sir Harris Nicolas : 'In May 1406, the king having taken into his consideration the numerous claims upon his time and attention, in the affairs of the kingdom, appointed three bishops, six temporal peers, the chancellor, the treasurer, the keeper of the privy seal, the steward and chamberlain of his household, and three other persons, members of his Privy Council, and commanded them to exert themselves as much as possible in promoting the welfare, and in maintaining the laws and statutes, of the realm. The king then directed that all Bills indorsed by the chamberlain, and letters under the signet addressed to the chancellor, treasurer, and keeper of the privy seal, should thenceforward be indorsed by, or be written with the advice of, the council.' None of the officers aforesaid, or any others, were 'to grant any charters of pardon, or collations to benefices, except with the advice of the council; and for the greater security and independence of its members, the important condition was added, that they might resign • Parl. Hist. vol. i. p. 64. Parry, Parliaments of England, p. 80. A.D. 1376. King's council regulated by Parlia ment. whenever they found themselves unable to perform their duties with advantage to the king's service, without their retirement exciting his displeasure.' But meanwhile Parliament had begun to direct its attention to the character and composition of the king's council. In the last year of the reign of Edward III., the commons undertook to represent to the king, that it would be for his advantage, and that of the whole realm, if he would increase his council with ten or twelve lords, prelates, and others, who should be continually near the king; so as no great business might pass without the advice and assent of six, or four of them, at least, as the case required.' His majesty acceded to this request, with a proviso that the chancellor, treasurer, and privy seal might execute their offices without the presence of any of the said councillors. The commons then made further protestation of their willingness to aid the king to the utmost of their power; but pointed to the fact that, 'for the particular profit and advantage of some private persons about the king, and their confederates, the realm was much impoverished.' They then proceeded to impeach certain of these evil councillors, and caused them to be dismissed from the king's council, and their goods confiscated' a proceeding which was frequently repeated during the reign of Richard II.* In further illustration of the growing power of Parliament, and of its acknowledged supremacy, in the reign of Henry IV., and in that of his son and grandson (Henry V. A.D. 1406- and Henry VI.), we find certain of the king's household removed upon petition of the commons; and Parliament occupying itself in framing regulations and ordinances for the governance of the king's council and the royal house 1455. Nicolas, Proceedings Privy Coun. vol. vi. p. cxlvi. citing Parl. Rot. vol. iii. p. 572. Lord Lovell, who was appointed a member of the council on that occasion, prayed to be, and was, excused from serving, because he had certain suits pending in the courts of law, which, he said, would prevent his performing his duty honestement.'-Ibid. p. 573. t Parl. Hist. of Eng. vol. i. p. 141. * Cox, Antient Parl. Elec. p. 93. hold, which, being made into a statute, the council, together with all the judges, and the officers of the household, at the command of the king, take oath to observe. This is a very important assertion of the principle of ministerial responsibility." the council. From this period until the accession of Henry VII., the A.D. 1485. history of the king's council is chiefly remarkable for the Developgradual development of its administrative functions, for the ment of introduction of forms, intended to operate as constitutional restraints upon the personal exercise of the royal will, and for a corresponding increase of power on the part of the leading ministers of state of whom the council was composed. On the other hand, the personal influence and authority of the sovereign during the whole of this era was very great, though it necessarily varied according to the ability or strength of character of the reigning monarch. With a vigorous prince upon the throne, the council became the mere instrument of his will, the channel through which the royal mandates passed. At other times, the influence of a powerful nobility was exerted to curb the arbitrary exercise of kingly rule, and to aggrandise the authority of his ministers. Moreover, the ministers themselves occupied, to some extent, an independent position. The king could indeed appoint or dismiss them at pleasure; but it was essential that he should have a council of some sort, and certain official personages neces- Its compo sarily formed part of every council. These were the five great officers of state above-mentioned-viz., the chancellor, the lord treasurer, the keeper of the privy seal, the chamberlain, and the steward of the household, who all had seats at the council board virtute officii. In addition to these functionaries, the council usually included the Archbishops of Canterbury and York, and from ten to fifteen other spiritual or temporal lords, or men of mark, sition. Growing power of the council. The great seal. who possessed the confidence of the king and of Parliament. For while the sovereign had an absolute right to appoint or remove his councillors at pleasure, the English monarchs appear to have been generally careful to choose men as their advisers and ministers who were acceptable to the lords and commons." Some of the official members of the council, during this period, held offices which were not in the direct gift of the crown, but were hereditary in certain families. Again, the presence of the archbishops and other ecclesiastics imparted a dignity and independence to the body otherwise unattainable. With such a position it was not difficult for a refractory council to cause its power to be felt. They were privileged to approach the sovereign with advice or remonstrance upon any matter affecting the common weal. Their rebukes might indeed be disregarded, and their counsel overruled; but the moral effect of their interposition could not be ignored. What added materially to the weight and influence of the council was that, through the instrumentality of the chancellor, they could refuse to give effect to the king's wishes, or to legalise his grant; for, from a very early period, they had claimed to take cognisance of every grant or writ issued by the king. The 'great seal' remained in the custody of the chancellor, and could not be affixed to any document except by his hand. It is true that this rule was often regarded by sovereigns as a vexatious and unwarrantable restraint; and that they sought to escape from it, either by retaining personal possession of the great seal, or by claiming that signature by means of smaller royal seals (which at first were kept in the king's own hands) was sufficient to authenticate any writ or other missive. But Parliament remonstrated against such practices, and claimed that a rule which was a protection to the crown itself, against fraud, should be strictly en Sir H. Nicolas, P. C. vol. i. pp. ii., iii. forced. At length the privy seal passed into the hands of a regular officer, when it was maintained by the lawyers, The privy though contested by the crown, that the great seal ought seal. Χ to be affixed to no bill on a verbal warrant, or otherwise than upon a formal writ of privy seal. These circumstances contributed to confer upon the king's council great and increasing weight and influence. Moreover, upon constitutional grounds, this doctrine in regard to the seals was of obvious necessity: for the chancellor could not prove that he had obeyed a royal mandate unless he had a formal warrant to show for what he had done. Yet while this plea, and probably also the convenience to the crown of throwing upon its servants a measure of responsibility for its own acts, reconciled the king to this restriction upon the free exercise of his will, the restraint was felt as peculiarly irksome by the monarchs of England during this epoch. During the reign of Edward IV., that sovereign' on many occasions enforced his directions in his letters to the chancellor by adding his commands in his own handwriting;' and once it is mentioned of him, that he expressed his indignant A.D. 1465. surprise that the chancellor did not deem his majesty's verbal commands sufficient warrant' for the issue of a particular instrument." 6 tional se 1444. These constitutional safeguards against the unrestrained Constituexercise of the royal prerogative were enforced, from curities. time to time, by further regulations to the same effect. By an order of the council in the reign of Henry VI., a.d. 1443– rules were adopted which practically ensured that every grant of the crown should, from the moment of its presentation as a petition, or warrant, to the time of its final sanction by royal writ, be brought under the notice of the king's ministers. In the reign of Henry VIII. all A.d. 1526. these rules were, in substance, re-enacted; and, so far as * Dicey, pp. 17-20. Sir H. Nicolas, Proc. of Privy Council, vol. vi. pp. cxcv., cxcvi. Dicey, p. 20. See Sir H. Nicolas, vol. vi. pp. |