« EdellinenJatka »
pretation of nephew: and therefore when his late majefty created his grandfon, the fecond fon of Frederick prince of Wales deceafed, duke of York, and referred it to the house of lords to fettle his place and precedence, they certified that he ought to have place next to the duke of Cumberland, the king's youngest fon; and that he might have a feat on the left hand of the cloth of estate. But when, on the acceffion of his prefent majesty, thofe royal perfonages ceased to take place as the children, and ranked only as the brother and uncle, of the king, they also left their feats on the fide of the cloth of eftate: fo that when the duke of Glocefter, his majesty's fecond brother, took his feat in the house of peers, he was placed on the upper end of the earls' bench (on which the dukes ufually fit) next to his royal highnefs the duke of York. And in 1718, upon a queftion referred to all the judges by king George I, it was refolved by the opinion of ten against the other two, that the education and care of all the king's grandchildren while minors, and the care and approbation of their marriages, when grown up, did belong of right to his majefty as king of this realm, even during their father's life". And this may fuffice for the notice, taken by the law, of his majefty's royal family.
f Lords' Journ. 24 Apr. 1760. ́g Ibid. 15 Jan. 1765.
h Fortefc. Al. 401–440.
CHAPTER THE FIFTH.
OF THE COUNCILS BELONGING TO THE KING,
HE third point of view, in which we are to confider the king, is with regard to councils. For, in order to ffift him in the discharge of his duties, the maintenance of his dig, nity, and the exertion of his prerogaive, the law hath affigned him a diversity of councils to advise with.
I. THE first of these is the high court of parliament, whereof we have already treated at large.
2. SECONDLY, the peers of the realm are by their birth hereditary counsellors of the crown, and may be called together by the king to impart their advice in all matters of importance to the realm, either in time of parliament, or, which hath been their principal ufe, when there is no parliament in being'. Accordingly, Bracton', fpeaking of the nobility of his time, fays they might properly be called " confules, a confulendo; reges enim "tales fibi affociant ad confulendum." And in our laws books it is laid down, that peers are created for two reafons; 1. Ad confu lendum, 2. Ad defendendum regem: for which reafons the law gives them certain great and high privileges; fuch as freedom from arrefts, &c. even when no parliament is fitting: becaufe the law intends, that they are always affifting the king with their counfel for the commonwealth; or keeping the realm in fafety by their prowess and valour.
2 Co. Litt. 115.
b. 1. c. 8.
- Rep. 34. 2 Ref. 49.
12 Rep. 96.
INSTANCES of conventions of the peers, to advise the king, have been in former times very frequent; though now fallen into ditufe, by reafon of the more regular meetings of parliaSir Edward Coke gives us an extract of a record, 5 Hen. IV, concerning an exchange of lands between the king and the earl of Northumberland, wherein the value of each was agreed to be fettled by advice of parliament (it any fhould be called before the feaft of St. Lucia) or otherwife by advice of the grand council (of pcers) which the king promifes to assemble before the faid feaft, in cafe no parliament fhall be called. Many other inftances of this kind of meeting are to be found under our antient kings: though the formal method of convoking them had been fo long left off, that when king Charles I in 1640 iffued out writs under the great feal to call a great council of all the peers of England to meet and attend his majefty at York, previous to the meeting of the long parliament, the earl of Clarendon mentions it as a new invention, not before heard of; that is, as he explains himself, so old, that it had not been practiced in fome hundred of years. But, though there had not fo long before been an inflance, nor has there been any fince, of affembling them in fo folemn a manner, yet, in cafes of emergency, our princes have at feveral times thought proper to call for and confult as many of the nobility as could easily be got together; as was particularly the cafe with king James the second, after the landing of the prince of Orange; and with the prince of Orange lin.felf, before he called that convention parliament, which afterwards called him to the throne.
Brethis general meeting, it is ufually looked upon to be the right of each particular peer of the realm, to demand an audierce of the king, and to lay before him, with decency and respect, such matters as he fhall judge of importance to the pubHe weal. And therefore, in the reign of Edward II, it was made n article of impeachment in parliament against the two Hugh Spencers
Spencers, father and fon, for which they were banished the kingdom," that they by their evil covin would not fuffer the great men of the realm, the king's good counfellors, to speak "with the king, or to come near him; but only in the prefence "and hearing of the faid Hugh the father and Hugh the fon, "or one of them, and at their will, and according to fuch things "as pleased them."
3. A THIRD Council belonging to the king, are, according to fir Edward Coke', his judges of the courts of law, for law matters. And this appears frequently in our fiatutes, particularly 14 Edw. III. c. 5. and in other books of law. So that when the king's council is mentioned generally, it must be defined, particularized, and understood, fecundum fubjectam materiam ; and, if the fubject be of a legal nature, then by the king's council is understood his council for matters of law; namely, his judges. Therefore when by ftatute 16 Ric. II. c. 5. it was made a high offence to import into this kingdom any papal bulles, or other proceffes from Rome; and it was enacted, that the offenders fhould be attached by their bodies, and brought before the king and his council to answer for fuch offence; here, by the expreifion of king's council, were underflood the king's judges of his courts of juftice, the fubject matter being legal: this being the general way of interpreting the word, council".
4. BUT the principal council belonging to the king is his privy council, which is generally called, by way or eminence, the council. And this, according to fir Edward Coke's defcription of it, is a noble, honorable, and reverend affembly, of the king and fuch as he wills to be of his rivy council, in the king's court or palace. The king's will is the fole conftituent of a privy counfellor; and this alfo regulates their number, which of antient time was twelve or thereabouts. Afterwards it increased to fo large a number, that it was found inconvenient for fecrefy and difpatch;
f 4 Int. 53.
dispatch; and therefore king Charles the fecond in 1679 limited it to thirty whereof fifteen were to be the principal officers of state, and those 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. At the fame time also, the antient office of lord prefident of the council was revived in the person of Anthony earl of Shaftsbury; an officer, that by the ftatute of 31 Hen. VIII. c. 10. has precedence next after the lord chancellor and lord treasurer,
PRIVY COUNfcllors are made by the king's nomination, without either patent or grant; and, on taking the necessary oaths, they become immediately privy counsellors during the life of the king that chufes them, but fubject to removal at his discretion.
THE duty of a privy counsellor appears from the oath of office', which confifts of feven articles: 1. To advife the king according to the best of his cunning and discretion. 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 counfel fecret. 4. To avoid corruption. 5. To help and ftrengthen the execution of what fhall be there refolved. 6. To withstand all perfons who would attempt the contrary. And, lastly, in general. 7. To obferve, 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 enquire into all offences against the government, and to commit the offenders to fafe cuftody, in order to take their trial in fome of the courts of law. But their jurifdiction herein is only to enquire, and not to punish: and the perfons committed by them are entitled to their habeas corpus by ftatute 16 Car. I. c. 10. as much as if committed by an ordinary juftice of the peace. And, by the fame statute, the court of ftarchamber, and the court of requests, both of which confifted
k Tempie's Mem, part 3.