1911 Encyclopædia Britannica/Privy Council
PRIVY COUNCIL. The origin of the privy council dates back substantially to the Norman period of English history. The commune concilium, the assembly, in theory, of all the tenants-in-chief of the Crown, had attached to and included in it a group of officers of state and of the royal household, who with a staff of clerks and secretaries carried on the executive, judicial and financial business of government. This group, of necessity permanent, it is suggested, formed the curia regis; and appears to have consisted of the chancellor, the chief justiciary (so long as the office lasted), the treasurer, the steward, the chamberlain, the marshal and the constable, together with the two archbishops and any other persons the king might choose to appoint. Their duties were to advise the king in matters of legislation and administration, to see justice done and generally to execute the royal will. Such a blend of advisory, executive and judicial power could exist only in a simple condition of affairs, and therefore it was to be expected that as government became more settled, and so more complicated, a separation of powers would inevitably follow. The change came quickly. Quite early finance was dealt with by a small section of the court convened at the exchequer chamber; this soon developed into a separate department controlled by the treasurer, managing the revenue and deciding all suits connected with its administration. A little later the court of king’s bench and the court of common pleas grew into being, and by the end of the reign of John these two courts were finally separated from one another and from the curia. The establishment of separate courts of justice, although relieving the curia of much of its work, did not deprive it of all judicial power. The king was the fountain of justice, and where redress could not be obtained in the ordinary way, either from the greatness of the disputants, through private oppression, or because no other means existed, resort still remained to the Crown, either in the first instance or when all other courses had failed the petitioner. Relieved of financial detail and the bulk of its judicial work, the curia continued to develop on the lines of an advisory and administrative council. Becoming prominent as a council of regency during the minority of Henry III., it quickly assumed definite form as the concilium regis. Under Edward I. “its members take an oath; they are sworn of the council swearing to give good advice, to protect the king’s interests, to do justice honestly, to take no gifts” (Maitland, Const. Hist. p. 91). At this period in addition to the great officers of state the judges and a number of bishops appear among the members. One of the most important duties of the council was to advise the Crown in matters of legislation. During the fourteenth and fifteenth centuries, ordinances in subordinate matters appear to have been made regularly by the king in council and accepted as legal by parliament and by the judges. In early parliamentary days it was also part of the council’s duty to put into legislative form the petitions sent up by the Commons. Frequently the statute in its final form did not correspond with the petition, and the Commons were continually complaining of the council’s unwarrantable interference. Eventually by the reign of Henry VII. the council had ceased to interfere, the petitions being drawn in the form of a bill, and enacted without alteration. During the 14th century the concilium regis had become definitely distinct as well from parliament as from the courts of law. Under Henry IV. in 1404 the council numbered nineteen three bishops, nine peers and seven commoners. The members held office at the king’s pleasure, they are sworn to give their best advice and are well paid for their work. They meet continually, though the king is often absent, but their proceedings are committed to writing. Maitland (Const. Hist. p. 199) sums up the work as follows: “The function of the Council is to advise the King upon every exercise of the royal power. Every sort of ordinance, licence, pardon, that the King can issue is brought before the Council. Sometimes Parliament trusts it with extraordinary powers of legislation and taxation; to raise loans and the like. It is to the advice of the Council that the King looks in all his financial difficulties.” The powers of the council naturally varied with the character of the king. Quiescent and obedient under a strong king, its influence was re-asserted under a weak one; and when infant kings sat on the throne, for all practical purposes it became the ruler of the land.
In spite of the existence of regular courts of law the council continually interfered with affairs of justice. Many attempts were made by it to set aside or to disregard the judgments of the ordinary courts, but by the beginning of the 15th century parliament had forcibly intervened, and the council gave in. Repeatedly statutes were passed during the reign of Edward III. with a view to checking the council’s original jurisdiction in criminal matters, but without effect, as in the reigns of Henry IV. and his son the Commons are found still petitioning against the practice. Yet during the period under review parliament is continually enacting that certain offenders are to be punished by and at the discretion of the council. Evidently such a tribunal, quickly and informally constituted, bound by no legal rules and maxims, proved a useful engine for sharp and speedy punishment. In 1487 was passed an act (3 Hen. VII. c. i) which is accounted the creator of the Court of Star Chamber. Perjury, riot, bribery of jurors and misconduct of officials had grown rife, and the act authorizes certain members of the council to call offenders before it, to examine them, and if satisfied of their guilt, to punish them. In later years a committee of the council appear to have sat and exercised a widely extended criminal jurisdiction, inflicting every kind of punishment short of the death penalty. This body became known as the Court of Star Chamber and remained in existence until its abolition by act of parliament in 1641.
During the i4th century many petitions relating to civil disputes were presented to the council and were frequently taken into consideration by it on the ground that extraordinary remedies were required, either from lack of legal form or owing to influential private oppression. Eventually where the courts could decide, it became the practice of the council not to interfere, but where no relief could be obtained the council passed the petition on to the chancellor. In course of time the petitions went direct to the chancellor, and in this manner the equity jurisdiction of the court of chancery was established. The act of 1641, which abolished the Court of Star Chamber, also formally forbade the council to meddle with civil causes. During the Tudor period the council grew in importance; it became useful to the Crown as a vehicle for straining prerogative to the utmost. By the act 31 Hen. VIII. the king’s proclamation acquired the force of law, and for a short period the king in council had concurrent legislative power with parliament. Henry’s statute was repealed by i Edw. VI. c. 1 2 and the legislative supremacy of parliament re-established. In 1553 the council numbered forty members four bishops, fourteen peers and the rest commoners. The increase in the number of its members, the direct and often independent communication between the Crown and its secretaries, and the strong personality of the Tudor sovereigns quickly reacted on the work of the council. It had become too large for consultative purposes and the sovereign began a practice, which quickly grew, of consulting only its important members. In this way, within the council itself, there appears a small inner ring a true privy council the parent of the cabinet of later days.
The struggle of James I. and Charles I. for absolute power and finally the Rebellion, ended by leaving the council for the time being impotent. The act of 1641 had not only abolished its special criminal jurisdiction but forbade its interference in civil cases, while the growth of the Secretariat had gradually removed the bulk of its administrative powers. In the end there was little left for it but occasional meetings to give legal sanction to orders it had no concern with, and on the judicial side to act as a court of final resort in Admiralty matters and for all civil and criminal appeals from the courts of the Crown’s dominions beyond the seas.
In the reign of Charles II. an attempt was made to revive the usefulness of the council. A scheme was prepared by Sir William Temple in 1679 and accepted by the king. A representative council of thirty members came into being and attempted to carry out the new scheme, but the king, after a short trial, held to his old opinion that the numbers of the council made it “unfit for the secrecy and despatch which are necessary in many great affairs.” Once more the king returned to his confidential committee, his cabal, out of which the cabinet of the future grew. Under William III. faction flourished and made general agreement at the council board impossible. George I., ignorant of the English language, never appeared at its meetings, with the result that the direction of affairs passed into the hands of a committee of ministers the cabinet.
Although the true privy council is the cabinet, the name is to-day given collectively to a large number of eminent people whose membership and position are titular only. All members of the cabinet if not already privy councillors become so on appointment to cabinet office. Occasionally, subordinate members of the ministry and some of its private supporters are made privy councillors as a special distinction. The lord chancellor, the lords of appeal in ordinary, the president of the probate division, the lord president of the court of session in Scotland, the lord justice clerk and the lord advocate of Scotland are always privy councillors, as are the archbishops of Canterbury and York and the bishop of London. In 1897 all the premiers of the self-governing colonies were made privy councillors. Of recent years, retired ambassadors, judges, retired civil servants and persons distinguished in science, letters and arts have been appointed. The custom seems also to be growing of using the honour of privy councillor to reward political supporters who do not wish for hereditary titles. The collective title of the council is “the Lords and others of His Majesty’s Most Honourable Privy Council.” The members are addressed as “Right Honourable” and wear a state uniform. The appointment is informal, the new privy councillor simply being invited by the king to take his seat at the board. He is then sworn in, and his name placed on the list. Office lasts for the life of the sovereign and six months after, but it is the modern custom for the new sovereign to renew the appointment.
Meetings of the whole council are held at the beginning of a new reign or when the reigning sovereign announces his or her marriage. The lord mayor of London is then summoned to attend. The whole council might also be summoned on other occasions of state and ceremony.
The formal meetings of the council are attended by the few councillors concerned with the orders to be issued. These are generally ministers or officials. The chief officer of the council is the lord president, now a cabinet minister of the highest rank, but without departmental duties. The office of clerk of the council dates from 1540 and his signature is necessary to authenticate all orders.
The administrative work of the council has always been done through committees, and during the last two centuries in spite of changed conditions this rule has been preserved in theory. The board of trade, the local government board, the education department and the board of agriculture were all committees of the council. Now, of course, these so-called committees are state departments presided over by ministers responsible to parliament. The existing jurisdiction of the council is both administrative and judicial.
Administrative.—This jurisdiction depends chiefly upon statutory authority, which practically makes of the privy council a subordinate legislature. It is found impossible for parliament to enact long and intricate measures dealing with departmental detail, hence a general measure is passed and the privy council is authorized under the act to draw up orders in council which of course have the full force of law. This power is exercised usually by committees to which matters are referred by the Crown in council, the departments of state concerned settling the details. Other examples of administrative work are the universities committee, with temporary powers under the Universities Act (1877), and the committee of council for the consideration of charters of incorporation under the Municipal Corporations Act (1882), the latter a work of considerable difficulty and delicacy and usually carried out in close consultation with the local government board. Cases affecting the constitutional rights of the Channel Islands are referred to a committee for the affairs of Jersey and Guernsey. The committees report to the Crown in council, and their report is adopted and enforced by an order in council published in the Gazette. Among other acts conferring administrative powers on the privy council are the Pharmacy Act (1852), as amended by 31 & 32 Vict. c. 121, the Medical Act (1858), the Foreign Enlistment Act (1870), the Destructive Insects Act (1877), the Contagious Diseases (Animals) Act (1878), the Dentists Act (1878) the Veterinary Surgeons Act (1881).
Judicial.—By the 3 & 4 Will. IV. c. 41 a judicial committee of the council was constituted. It consists of all the members of the council holding or having held the office of lord president or lord chancellor or certain high judicial offices enumerated in the act. By the Appellate Jurisdiction Acts of 1876 and 1887 other high judicial offices are included. All the lords of appeal in ordinary are members of the committee. Under the act of 1833 the king may also appoint any other two persons, being councillors. By the acts of 1833 and 1887 two persons having been Indian or Colonial judges may be appointed, and such appointments carry an annual salary of £400. By an act of 1895 any of the chief justices of certain colonies who are also privy councillors may be appointed to the committee, but not more than five such appointments may be made. Under this act certain colonial chief justices now sit. In appeals under the Clergy Discipline Acts three bishops sit as assessors. In colonial Admiralty appeals two nautical assessors attend. These assessors are merely technical advisers, and have no part in any decision. Appeals also lie from consular courts and prize courts. The decisions of ecclesiastical courts are subject to review by the committee, the sovereign being the “supreme governor” of the Church, but no appeal is competent where the case is one for the exercise of the bishop’s discretion. In these ecclesiastical cases the committee does not profess to expound and settle doctrine with ecclesiastical authority : it merely interprets the laws of the Church. In matters relating to ritual history and precedents are taken into account. Appeals also lie from vice-admiralty courts abroad, the Channel Islands, the Isle of Man, India and all the colonies. As a rule they lie as of right when the value of the matter at issue is of a certain amount (the amount varying according to the appeal rules of the different foreign possessions) and in a few other cases. Recent legislation, at the instance of the colonies, has to some extent further restricted the right to appeal. Appeals lie at the discretion of the committee on leave being obtained by petition for special leave to appeal. All proceedings are by petition (see Petition) which is addressed to the Crown in council in the first instance. The judicial proceedings of the council are in reality conducted like an ordinary case in the courts of law. Counsel are heard, and the ordinary rules of law and legal practice followed, and costs taxed. Judgment is given by motion which takes the form of advice to the Crown, and whatever may have taken place privately in discussion between the members, outwardly the committee is unanimous. Within recent years it has been suggested that the appellate jurisdiction of the House of Lords and the privy council should be coalesced, and thus constitute one final court of appeal for the whole empire. Besides the appellate there exists in the sovereign in council an original jurisdiction in questions concerning boundaries between dependencies, the extent of charters and the like. Until recently the council dealt with the petitions to extend the time patents were protected, but this work has now been given by statute to the controller-general of patents.
Ireland has its own privy council. The lord-lieutenant takes the place of the Crown. There is little real work and the distinction of membership is titular as in England. Scotland has had no privy council since the Act of Union which provided for one council for Great Britain. British colonies with parliamentary government have cabinets or committees of ministers, borrowed from the English model, but no privy council. In France, before the Revolution, the king had a council which bore some resemblance to the English type (see FRANCE: Law and Institutions). In Germany a “privy council” (Geheimes Rats-Kollegium, Gekeimes Conseit, Staatsrat), which under the prince formed the supreme organ of government, formerly existed in the various states of the empire, and out of this the ministries developed in the 17th century. These were originally committees of the council (Geheime Conferenz, Geheimes Kabinett, &c.) which, as in England, gradually absorbed its functions. In some of the German states, however, it still survives as the “council of state” (Staatsrat) and in Württemberg as “privy council” (Geheimer Rat). The title Wirklicher Geheimer Rat (real privy councillor), with the predicate Excellenz is given to the highest officials. That of Geheimer Rat simply is very generally, e.g. in Prussia, given to high officials, usually with the addition of the branch of the service to which they belong, e.g. Geheimer Finanzrat, Geheimer Justizrat. The title is also sometimes purely honorary, e.g. that of Geheimer Commerzienrat, bestowed on eminent men of business. (G. E.*)