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CHAPTER II.

THE PRIVY COUNCIL, UNDER PARLIAMENTARY GOVERNMENT.

BEFORE entering upon the separate history of the Cabinet Its present Council, it is needful that we should point out the place which is assigned by the Constitution to the Privy Council under parliamentary government.

position and functions.

Since the introduction of the important changes in our political system consequent upon the Revolution of 1688, the Privy Council has dwindled into a mere department of state, of comparative insignificance, so far as the actual direction of public affairs is concerned, when contrasted with its original authoritative and preeminent position. Its judicial functions, heretofore so formidable, are now restrained within very narrow limits. The power of taking examinations and issuing commitments for high treason, is the only remaining relic of its ancient authority in criminal matters. It continues to exercise an original jurisdiction in advising the crown concerning the grant of charters, and it has exclusively assumed the appellate jurisdiction over the colonies and dependencies of the crown which formerly appertained to the Council in Parliament. But, ever since the Revolution, it has been the appropriate duty of Parliament, either directly or indirectly, to afford redress in all cases wherein the common law fails to give relief."

In theory, however, the Privy Council still retains its ancient supremacy, and, in a constitutional point of view, is presumed to be the only legal and responsible Council of the crown. All formal acts of sovereignty must be

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performed through the instrumentality of this august body, and Cabinet ministers themselves derive their authority and responsibility, in the eye of the law, from the circumstance that they have been sworn in as members of the Privy Council.

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As at present constituted, the Privy Council is an How assembly of state advisers, unlimited in number, and appointed. pointed absolutely (without patent or grant) at the discretion of the sovereign, who may dismiss any individual member, or dissolve the whole Council, at his pleasure. Several instances are recorded of the names of privy councillors being struck off the lists by the king's command, for conduct that had displeased the sovereign," the last of which occurred in 1805. No qualification is necessary in a privy councillor, except that he be a naturalborn subject of Great Britain. Even this disability may be removed, by special Act of Parliament, as in the cases of Prince Leopold, afterwards King of the Belgians, and of His Royal Highness the late Prince Consort.

Formerly the duration of the Privy Council was only

Haydn, pp. 121-135; Mahon, Hist. of Eng. vol. iv. p. 411.-The name of Charles James Fox was struck out of the Privy Council in 1798, upon the advice of Mr. Pitt, on account of an intemperate and seditious speech at a club dinner. (Jesse, Life of George III., vol. iii. p. 194; Russell's Life of Fox, vol. iii. p. 168.) Upon the formation of his second administration, in 1804, Mr. Pitt urged the king to readmit Mr. Fox to the Council Board, that he might enter the Cabinet, but his Majesty peremptorily refused. But in January 1806, after Pitt's death, the king yielded to the necessity of the case, and upon the advice of Lord Grenville, sanctioned the readmission of Mr. Fox into his councils. -Ibid. pp. 330, 349.

In the case of Lord Melville, on account of alleged malversations in office, and in anticipation of an Ad

dress to the King from the House of
Commons, that his name might be
erased from the list of Privy Coun-
cillors, and that he be dismissed from
the royal presence for ever. (Stan-
hope's Pitt, vol. iv. pp. 283-285, 294.)
His lordship was afterwards resworn
of the Council, having been acquitted
of the charges preferred against him.
-Haydn, p. 135.

This restriction was imposed by
the Act 1 Geo. I. stat. 2, c. 4. In
1700 the House of Commons ad-
dressed King William III., to request
that no foreigner, Prince George
alone excepted, might be admitted to
the Privy Council. But the king
was determined not to receive this
address, and immediately prorogued
Parliament without a speech from
the throne.-Macaulay, Hist. of Eng.
vol. v. p. 286.

By 56 Geo. III. cc. 12, 13; by 3 & 4 Vict. cc. 1 and 2.

Of whom

during the lifetime of the sovereign, but it is now continued for six months longer (by Stat. 6 Anne, c. 7), unless dissolved by the new monarch. But, according to present usage, the privy councillors of the preceding reign are resworn upon the accession of a new sovereign.

The Privy Council ordinarily consists of the members composed. of the Royal Family, the Archbishops of Canterbury and York, and the Bishop of London, the great officers of state and of the household, including, as a matter of course, the President and Vice-President of the respective Committees of Council for Trade and for Education, as well as all those who compose the Cabinet, the Lord Chancellor and the Judges of the Courts of Equity, the Chief Justices of the Courts of Common Law, and some of the Puisne Judges (to assist in the business of the Judicial Committee), the Ecclesiastical and Admiralty Judges, and the Judge Advocate, the Speaker of the House of Commons, the Ambassadors and principal Ministers Plenipotentiary, the Governors of some of the principal Colonies, the Commander-in-Chief, the First Lord of the Admiralty, and occasionally a junior Lord of the Admiralty. The Lord Advocate for Scotland, though styled, by usage, right honourable, is not a privy councillor, neither are the Attorney or Solicitor-General for England, because they are liable to be called upon to act as assessors before the Privy Council, or as counsel for the crown. The Irish Attorney-General, however, is generally a member of the Privy Council for Ireland. A seat in the Privy Council is sometimes conferred as an honorary distinction. on persons retiring from the public service, who have filled responsible situations under the crown.' A privy councillor, although he be but a commoner, is styled 'right honourable,' and has precedence over all knights,

Murray's Handbook, pp. 104106. Dodd's Manual of Dignities, pp. 257-265, 336, 661.-It is not usual to confer this rank upon UnderSecretaries of State, or Junior Lords,

either of the Treasury or Admiralty; but in 1864, Mr. Chichester Fortescue, being then Under-Secretary for the Colonies, was appointed a Privy Councillor.

Council

lors' oaths.

baronets, and younger sons of barons and viscounts. There is no salary or emolument attached to the office; and the acceptance, by a member of the House of Commons, of a seat in the Privy Council, does not void his election." The oath of office, as it was anciently imposed upon Privy every privy councillor," is recorded in Coke's Institutes,'i and is to the following effect:-1. To advise the king in all matters to the best of his wisdom and discretion. 2. To advise for the king's honour and advantage, and to the public good, without partiality and without fear. 3. To keep secret the king's counsel, and all transactions in the Council itself. 4. To avoid corruption in regard to any matter or thing to be done in Council. 5. To forward and help the execution of whatsoever shall be therein resolved. 6. To withstand all persons who shall attempt the contrary. 7. And generally to observe, keep, and do all that a good and true councillor ought to do unto his sovereign lord.—The oath of office now taken by a privy councillor is given in the Report of the Oaths' Commission, 1867 (p. 84); together with the following declaration, which embodies the substance of the oath, and which it is recommended shall be substituted for it :- You shall solemnly and sincerely declare that you will be a true and faithful servant unto her Majesty Queen Victoria, as one of her Majesty's Privy Council. You shall keep secret all matters committed and revealed unto you, or that shall be secretly treated of in Council, and generally in all things you shall do as a faithful and true servant ought to do to her Majesty.' Privy councillors must take the Oath of Allegiance, as prescribed by the Promissory Oaths Act of 1868.

Hans. Deb. vol. clxxiv. p. 1197. Near relations of the sovereign are usually admitted to a seat in the Privy Council without being sworn. -Haydn, Book of Dignities, pp. 120, 129, 137, 145.

14 Inst. 54.

J 31 & 32 Vict. c. 72. And see the Oaths' Commission Report, p. 2, for a declaration enjoined to be made by

privy councillors, under the Act 9
Geo. IV. c. 17, sec. 2, to maintain the
rights of the Protestant Established
Church in England. The taking of
this declaration was constructively
abolished by the Act 29 Vic. c. 22.
But it has still been imposed, and
the Commissioners recommend that
it should be dispensed with.

Obligation of secrecy.

The obligation of keeping the king's counsel inviolably secret is one that rests upon all Cabinet ministers and other responsible advisers of the crown, by virtue of the oath which they take when they are made members of the Privy Council.*

As has been already observed, this secrecy is not a mere personal privilege or protection, either to the sovereign or to the minister, that may be waived by mutual consent; but is based upon constitutional principle and state policy, it being of the first importance that there should be entire freedom and immunity in the confidential intercourse between the crown and its immediate advisers.

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Nothing that has passed between the sovereign and his Can only be removed ministers, in their confidential relations with each other, by the Sovereign, may be disclosed to any other person, or to either House of Parliament, without the express permission of the sovereign. And this permission would only be accorded for purposes of state, as to enable a minister to explain and justify to Parliament his political conduct. It would not be granted for the purpose of enabling Parliament to scrutinise the motives of a political act which was not itself impeachable on public grounds." Neither would it be given with a view to subject the secret counsels of the crown to the review of an ordinary legal tribunal.°

The necessity for obtaining leave from the crown to divulge past proceedings, or communications between the sovereign and his confidential servants, applies with

See ante, vol. i. p. 51.-Moreover, the king, as head of the Established Church in England, is at liberty to communicate confidentially with the archbishops or bishops, on any public matter.-Mirror of Parl. 1833, p. 3138.

Ante, vol. i. p. 301; post, p. 195. m Mirror of Parl. 1831-2, p. 2134. "Ante, vol. i. p. 229. In 1810, Lord Chatham, being a member of the existing administration, was examined at the bar of the House of Commons,

touching the Walcheren Expedition, which he had personally commanded. (See ante, vol. i. pp. 171, 332.) His Lordship answered all questions put to him as a military officer, but declined answering any which concerned matters known to him only as a Privy Councillor, or as a Cabinet minister.

Colchester Diary, vol. ii. p. 235; Parl. Deb. vol. xv. pp. cccxlviiiccclxxiii.

Ante, vol. i. p. 302.

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