Page:EB1911 - Volume 22.djvu/386

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372
PRIVY COUNCIL


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