whereof fifteen were to be the principal officers of state, and thofe to be counsellors, virtute officii; and the other fifteen were compofed of ten lords and five commoners of the king's choofing. But fince that time the number has been much augmented, and now continues indefinite (1). At the fame time alfo the antient office of lord prefident of the council was revived in the perfon of Anthony earl of Shaftsbury (2); an officer, that by the ftatute of 31 Hen. VIII. c. 10. has precedence next after the lord chancellor and lord treasurer. PRIVY Counsellors are made by the king's nomination, without either patent or grant; and, on taking the neceffary oaths, they become immediately privy counsellors during the life of the king that chooses them, but fubject to removal at his difcretion. As to the qualifications of members to fit at this board: any natural born fubject of England is capable of being a member of the privy council; taking the proper oaths for fecurity of the government, and the teft for fecurity of the church * Temple's Mem. part. 3. (1) No inconvenience arifes from the extenfion of their numbers, as those only attend who are fpecially fummoned for that particular occafion upon which their advice and affiftance are required. The cabinet council, as it is called, confifts of thofe minifters of state who are more immediately honoured with his majesty's confidence, and who are summoned to confult upon the important and arduous difcharge of the executive authority: their number and selection depend only upon the king's pleafure; and cach member of that council receives a fummons or meffage for every attendance. (2) It appears from the 4 Inft. 55. that this office exifted in the time of Ja. I.; for lord Coke fays, "there is, and of antient time hath been, a prefident of the council. This office was never granted but by letters patent under the great seal durante beneplacito, and is very ancient; for John bishop of Norwich was prefident of the council in anno 7 regis Johannis. Dormivit tamen hoc officium regnante magna Elizabetha. But, But, in order to prevent any perfons under foreign attachments from infinuating themselves into this important trust, as happened in the reign of king William in many instances, it is enacted by the act of fettlement', that no person born out of the dominions of the crown of England, unless born of English parents, even though naturalized by parliament, shall be capable of being of the privy council. THE duty of a privy counsellor appears from the oath of office", which confifts of feven articles: 1. To advise the king according to the best of his cunning and difcretion. 2. To advise for the king's honour and good of the public, without partiality through affection, love, meed, doubt, or dread. 3. To keep the king's counsel fecret. 4. To avoid corruption. 5. To help and strengthen the execution of what fhall be there refolved. 6. To withstand all perfons who [231] would attempt the contrary. And faftly, in general, 7. To observe, keep, and do all that a good and true counsellor ought to do to his fovereign lord. THE power of the privy council is to inquire into all offences against the government, and to commit the offenders to safe cuftody, in order to take their trial in fome of the courts of law. But their jurisdiction herein is only to inquire, and not to punish: and the perfons committed by them are intitled to their habeas corpus by ftatute 16 Car. I. c. Ic. as much as if committed by an ordinary justice of the peace. And, by the fame ftatute, the court of ftarchamber, and the court of requests, both of which confifted of privy counsellors, were diffolved; and it was declared illegal for them to take cognizance of any matter of property, belonging to the subjects of this kingdom. But, in plantation or admiralty causes, which arise out of the jurisdiction of this kingdom; and in matters of lunacy or ideocy", being a special flower of the prerogative; with regard to these, although they may eventually involve questions of extenfive property, 1 Stat. 12 & 13 Will. III. c. 2. 4 Inft. 54. . 3 P. Wms. 108 the the privy council continues to have cognizance, being the court of appeal in fuch cafes: or rather, the appeal lies to the king's majefty himself in council (3). Whenever also a question arifes between two provinces in America or elfewhere, as concerning the extent of their charters and the like, the king in his council exercises original jurisdiction therein, upon the principles of feodal fovereignty. And so likewise when any person claims an island or a province, in the nature of a feodal principality, by grant from the king or his ancestors, the determination of that right belongs to his majesty in council: as was the cafe of the earl of Derby with regard to the Isle of Man in the reign of queen Elizabeth, and the earl of Cardigan and others, as representatives of the duke of Montague, with relation to the island of St, Vincent in 1764. But from all the dominions of the crown, excepting Great Britain and Ireland, and appellate jurisdiction [232] (in the laft refort) is vested in the fame tribunal; which usually exercises it's judicial authority in a committee of the whole privy council, who hear the allegations and proofs, and make their report to his majefty in council by whom the judgment is finally given (4). THE privileges of privy counsellors, as such, (abstracted from their honorary precedence,) confift principally in the fecurity which the law has given them against attempts and confpiracies to destroy their lives. For, by ftatute 3 Hen. VII. c. 14. if any of the king's fervants, of his household, confpire or imagine to take away the life of a privy counsellor, • See page 405. (3) This is, in fact, a court of juftice, which muft confift of at least three privy counsellors. (4) The court of privy council cannot decree in perfonam in England, unless in certain criminal matters; and the court of chancery cannot decree in rem out of the kingdom. See Lord Hardwicke's Arg. in Pen v. Baltimore, 1 Verf. 444. where the jurifdiction of the council and chancery, upon questions arifing upon fubject-matter abroad, is largely difcuffed. it is felony, though nothing be done upon it. The reason of making this ftatute, fir Edward Coke P tells us, was because fuch a confpiracy was, just before this parliament, made by fome of king Henry the feventh's household fervants, and great mischief was like to have enfued thereupon. This extends only to the king's menial fervants. But the statute 9 Ann. c. 16. goes farther, and enacts, that any person that fhall unlawfully attempt to kill, or fhall unlawfully assault, and strike, or wound, any privy counsellor in the execution of his office, fhall be a felon without benefit of clergy. This statute was made upon the daring attempt of the fieur Guifcard, who stabbed Mr. Harley, afterwards earl of Oxford, with a penknife, when under examination for high crimes. in a committee of the privy council. THE diffolution of the privy council depends upon the king's. pleasure; and he may, whenever he thinks proper, discharge any particular member, or the whole of it, and appoint another. By the common law alfo it was diffolved ipfo facto by the king's demife; as deriving all it's authority from him. But now, to prevent the inconveniencies of having no council in being at the acceffion of a new prince, it is enacted by ftatute 6 Ann. c. 7. that the privy council fhall continue for fix months after the demife of the crown, unless fooner determined by the fucceffor. P3 Inft. 38. CHAPTER THE SIXTH. I OF THE KING'S DUTIES. PROCEED next to the duties, incumbent on the king by our conftitution; in confideration of which duties his dignity and prerogative are established by the laws of the land: it being a maxim in the law, that protection and subjection are reciprocal. And these reciprocal duties are what, I apprehend, were meant by the convention in 1688, when they declared that king James had broken the original contract between king and people. But however, as the terms of that original contract were in fome measure difputed, being alleged to exift principally in theory, and to be only deducible by reafon and the rules of natural law; in which deduction different understandings might very confiderably differ; it was, after the revolution, judged proper to declare thefe duties expressly, and to reduce that contract to a plain certainty. So that, whatever doubts might be formerly raifed by weak and fcrupulous minds about the existence of fuch an original contract, they must now entirely cease; efpecially with regard to every prince, who hath reigned fince the year 1688. THE principal duty of the king is to govern his people according to law. Nec regibus infinita aut libera poteftas, was the constitution of our German ancestors on the continent ". And this is not only confonant to the principles of nature, [234] of liberty, of reason, and of society, but has always been efteemed an exprefs part of the common law of England, even when prerogative was at the highest. "The king," faith Bracton, who wrote under Henry III., "ought not a Tac. de mer. Germ. c. 7. cl. I. c. 8. - to |