Advisers of the

assist him in the government of the realm. It may be confidently asserted that there is no period of our history when the sovereign could, according to the Crown. law and constitution, act without advice in the public concerns of the kingdom." "That the institution of the Crown of England has always had a Privy Council inseparable from it, is a fact which ought never to be lost sight of. This council has always been bound to advise the crown in every branch and act of its executive conduct." 8 And it is, in fact, the only council, combining in itself both deliberative and administrative functions, which is authoritatively recognized by the law and constitution of England. The number of members composing this council has varied at different periods, according to the king's will," but of ancient time there were twelve, or thereabouts." 4

At the era of the Norman conquest there appear to have been three separate councils in existence: one, A.D. 1066. composed of nobles, who were assembled on The king's special occasions by special writs, and who, councils. together with the great officers and ministers of state, formed the magnum concilium; another, styled the commune concilium, or general parliament of the realm; a third, known as the concilium privatum assiduum ordinarium, or, more frequently, the king's council. It comprised certain select persons of the nobility and great officers of state, specially summoned thereunto by the king's command, and sworn, and "with whom the king usually adviseth in matters of state and government." This council-or probably a committee of it, consisting of the judges, presided over by the king, or (in his absence) the chief justiciary served also as the supreme court of justice, which, under the denomination of the curia regis, commonly assembled three times in every year, wherever the king held Ordinary his court. The king's "ordinary" or "continual" council. council was equivalent to that which was known in later

1

5

Palgrave, v. I, p. 325; v. 2, p. 348; Stubbs, v. 1, pp. 149, 343. Palgrave on the King's Council, p. 20; Kemble, v. 2, p. 188; Hearn, Gov. of Eng. p. 18; Courtenay, Life of Sir Wm. Temple, v. 2, P. 57.

3 Smith, Parl. Remem. (1862), p. 3.

* Coke, Fourth Inst. p. 53.

5 Hale, Jurisdiction of the House of Lords, pp. 5-9; First Lords' Report, pp. 20-23; Lords' Pap. 1829, v. 10; Stubbs, v. 1, p. 564.

VOL. I.

Permanent council.

Aula Regia.

times as the Privy Council; although, meanwhile, it differed widely in its organization. But, apart from the fact that one was temporary and occasional, and the others permanent, there seems at first to have been but little difference between this body and the other principal councils. Leading nobles were members of the "continual" council, and at meetings of the great council they naturally occupied a prominent place, either as members or assistants of that august assembly.1 The permanent council under the early Norman kings consisted of the great officers of state-namely, the chancellor, the great justiciary, the lord treasurer, Curia Regis, or the lord steward, the chamberlain, the earl marshal, the constable, and any other persons whom the king chose to appoint. It also included the archbishops of Canterbury and of York, who claimed the right to form part of every royal council, whether public or private. It was known as the curia regis, otherwise styled the aula regia, or court of the king, and its powers were immense and undefinable. Its duty was to assist the king in the exercise of his prerogatives, and to give its sanction to acts done by him in virtue of those prerogatives-the members thereby making themselves responsible for the acts of the king. Thus, it was the executive. It acted also as a court of law. It took part in acts of legislation. In fact, "the king, who was at once the ruler and judge of the whole nation, exercised the powers which he possessed, either directly (and this he did to a greater extent than modern students are apt to suppose) or indirectly,

1 [I have retained this passage as Mr. Todd wrote it: but I apprehend that Sir W. Anson's account of these councils is more accurate and more logical. He tells us that there were four councils-the Commune Concilium, the Magnum Concilium, the Concilium Ordinarium, and the Concilium Privatum; and, he adds, "it might be possible to give a modern name to each of them, and to say that the Commune Concilium is Parliament; the Magnum Concilium, the House of Lords with the judges and law officers of the Crown; the Concilium Ordinarium, the Privy Council; and the Concilium Privatum, the Cabinet." Sir W. Anson does not, of course, mean that the old councils represented, either in their constitution or their duties, the modern bodies to which he compares them. But the comparison, nevertheless, gives the student a good idea of the relative functions of these various bodies, and enables him to understand how some of the same men were found serving on each of them (Law and Custom of the Constitution, Part II.," The Crown," pp. 83, 84).--Editor.]

2 First Lords' Report, Lords' Pap. 1829, v. 10, p. 21; Stubbs, v. 1, pp. 387, 436.

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"1

through the instrumentality of his great officers." For, in considering "the interchange of advice between the king and his nobles" during this period, we must divest ourselves of modern notions of constitutional authority, and understand that, according to the ideas prevailing in the eleventh century, it was rather the king's privilege than his duty to receive counsel from the great men of his kingdom. Their recommendations were not, like the advice of modern parliaments or ministers, commands veiled under a polite name, but in the strictest sense counsel." Nevertheless, there were certain things which the king was never able to accomplish by his mere prerogative. Thus, he could neither legislate, nor impose new taxes, without the consent of his Parliament. And he was bound to rule in accordance with the laws of the realm; and, if he broke those laws, his agents or advisers were, from a very early period, in some shape or other, held accountable for his misdeeds to the national assembly. Moreover, it was the right and duty of the king to demand and receive advice from his great council in all circumstances of difficulty; for the king of England was never an absolute monarch, but was himself subject to the law. Bracton, writing in the A.D. 1250. thirteenth century, says that it is "the law by

which he is made king,

3

so that if he were without a bridle, that is, the law, his great court ought to put a bridle upon him. For, though the king is our sovereign lord, he does not possess the sovereign authority of the commonwealth, which is vested, not in the king singly, but in the king, lords, and commons jointly. To enable him to govern his people with wisdom and discretion, the king would summon to his councils "the most considerable persons in England, the

The Privy Council: the Arnold Prize Essay, 1860. By A. V. Dicey, B.A., pp. 3-6. This able essay presents, in a popular form, the results of the researches of Sir Harris Nicolas, in his learned prefaces to the Proceedings and Ordinances of the Privy Council of England, from 10 Rich. II. (1386) to 33 Henry VIII. (1542).

2 [This, of course, is not true of the earlier Norman kings, and is hardly consistent with the practice of the Tudors and the pretensions of the Stuarts.-Editor.]

5

3 Macaulay, Hist. of Eng. v. 1, pp. 29-32.

Quoted by Forster, Debates on Grand Remonstrance, p. 28.

Allen, Royal Prerogative, p. 159; First Lords' Report, Lords' Pap. 1829, v. 10, p. 22.

persons he most wanted to advise him, and the persons whose tempers he was most anxious to ascertain.” 1

In process of time the character of the aula regia underwent considerable modification. Each individual officer of the court had his own particular duties assigned to him. All business brought before the court would naturally be referred by the king to the functionary specially charged with the same. Thus, the marshal or constable, assisted probably by other members of the court, attended to military matters; the chamberlain to financial concerns; the chancellor to questions affecting the royal grants. Hence arose, by degrees, the separate institution of curia regis, under Henry II.—as an offshoot from the larger body-into a distinct judicial tribunal, which is the original of the present Court of Queen's Bench,1 and the subsequent development, at a later period, of other courts of law and equity.

Law-courts.

1

The first establishment of the law-courts, as distinct tribunals, took place, however, in the reign of King John. A.D. 1199. But it is worthy of notice that, notwithstanding the formation of separate courts for the administration of justice, the king's council continued to exercise judicial authority. To be the source and dispenser of justice, and to supply the defects and moderate the judgments of inferior courts, is an ancient prerogative of the crown. This prerogative was ordinarily exercised through judges, in accordance with established precedent; but it was still regarded as within the power of the king to try suits, either by his own authority, or through the officers of his council.3

A.D. 1272.

With the accession of Edward I. still more important changes commenced. The contemporaries of the Conqueror and his immediate descendants had been accustomed to the exercise of justice by the king and his great officers, after a rude and informal fashion. Meanwhile, the ordinary councils of King John and of Henry III. were largely influenced by the growing power of the barons, which operated as a restraint upon the arbitrary power of the

1 Bagehot, Eng. Const. p. 304.

2 Chron. of Reigns of Hen. II. and Richard I., edited by Stubbs, v. 2, pp. 71-80; and see Stubbs, Const. Hist. v. 1, p. 465.

3 See Palgrave, Eng. Commonwealth, v. 1, p. 283.

4 Dicey, p. 8.

sovereign. But, when Edward I. ascended the throne, a better understanding began to prevail between the monarch and his advisers.1 The rise of the law courts out of the curia regis begat, in the people generally, a desire for more orderly government. Those who contrasted the regular administration of justice with the irresponsible and uncertain procedure before the king's council, longed for something more in accordance with their ancient Saxon liberties. For the functions of the ordinary council at this time seem to have been co-extensive with the functions of the crown. Its consent Ordinary appears to have been deemed necessary to every council. important act of the king in the exercise of his legislative as well as of his executive powers. It " was evidently then considered as a very important part of the government, responsible to the king and the country for the acts done under its sanction; and the people often took great interest in its proper formation, of which there are striking instances in the reigns of Henry III. and Edward II."8

Contemporaneously with these events, the "great council" was steadily undergoing transformation, and as- Great council. suming definite shape as a legislative body, with

acknowledged rights and privileges. Formerly, as we have seen, the great council did not differ very materially from the smaller and more confidential assembly. The functions of both were chiefly administrative. The councils of William I. and his immediate successors, so far as existing records show, were principally occupied with matters of executive government-such as the grant of local charters, and the settlement of titles to land. The king could do nearly everything in his ordinary council" that was lawful for the great council to effect, except impose taxes. William the Conqueror, in ascending the throne of England, had expressly renounced all right to tax the nation without the consent of the commune concilium regni; and had promised to govern by the old laws, except as they might be altered expressly for the general good.5 It is true that he had not been faithful to his word.

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1 Palgrave, King's Council, p. 19; Stubbs, c. xv.

2 Dicey, p. II.

The

3_First Lords' Report, Lords' Pap. 1829, v. 10, p. 451; Hearn, Govt. of Eng. p. 273.

Cox, Ant. Parly. Elecs. p. 61.

5 Taylor, Book of Rights, p. 9.