§ 22. “Privy Council.”

This body was originally one of the most important councils of the Crown, variously called the Concilium Regis, the Ordinary Council, the Continual Council, and the Secret or Privy Council (Privatum Concilium). It acquired the last-named designation during the reign of Henry VI. (1422–1461). It was a council of confidential advisers, who were in constant attendance upon the king and assisted him in the decision of all questions of public policy and in the administration of the business of the kingdom. It represented the unity of the executive government. It consisted of nobles and other eminent persons in whom the king had confidence. Sir Edward Coke described it as an honourable and revered assembly of the king (4 Institutes, 53). Lord Hale described it as the Concilium in concilio, referring to the fact that the members of that council, being peers, were also members of the Magnum Concilium for which, in consultation with the king, they prepared the business. It was foreshadowed in the reign of Henry III. and assumed a definite organization during the long period covered by the successive reigns of the three Edwards. It was one of the three groups into which the Magnum Concilium was originally divided and which afterwards became fused into the House of Lords. These groups were—(1) The Lords Spiritual; (2) the Lords Temporal; and (3) the official and bureaucratic element immediately associated with the king in the government of the realm. (Gneist, English Const., pp. 349–351.)

In the middle ages the number of members of the Privy Council was limited to about fifteen. During the reign of Henry IV. (1401) the Council was composed of nine peers, three bishops, six knights and one untitled person. During the reign of Charles II. (1660–1685) the number of members had so increased as to make the body unwieldy “and unfit for the secrecy and dispatch which are necessary in many great affairs.” A plan of reconstruction proposed by Sir William Temple was adopted. According to this the number of Privy Councillors was restricted to thirty, of whom fifteen were to be ministers and principal officers of state, and the remaining fifteen included ten lords and five commoners chosen by the king. During the same reign the germ of the modern Cabinet appeared in the custom which then began of consulting only a select or confidential committee of the Council in reference to important parliamentary and executive business. After that reign the numerical strength of the Privy Council, notwithstanding Temple's plan, went on increasing. At the present time there is practically no limit to the number of persons who may be appointed members of the Council. There are now more than 200 Privy Councillors who may be classified as

  ― 330 ―
follows:—(1) Members of the Royal Family and noblemen of the highest rank; (2) statesmen who hold or have held high political office; (3) the Speaker and members of the diplomatic service who have attained the rank of ambassadors; (4) great officers of state departments on their retirement after long and distinguished service; (5) the Lord Chancellor and other judges of the superior courts; (6) ecclesiastical dignitaries; (7) the Commander-in-Chief and the Master-General of the Ordnances; (8) colonial ministers who have rendered conspicuous service to the Empire. These eminent personages are styled collectively “The Lords and others of Her Majesty's Most Honourable Privy Council,” and they are each entitled to be addressed as “The Right Honourable.” In modern practice this numerical and talented complexity of the Council has not been found inconvenient, as no Privy Councillors, except those occupying for the time being official positions, political or judicial, are summoned to advise the Crown, either in matters of state or in matters of law. (Stephen's Comm., 4th ed., vol. 2, p. 467.)

THE POLITICAL COMMITTEE.—The true Privy Council of the present day, and the one referred to in the above clause, is the Cabinet. The Cabinet has been defined as the political committee of the Privy Council, especially organized for the purpose of advising the Crown, directing all public departments, and deciding all important questions of administration, subject only to the approval of the House of Commons. (Hearn's Government of England, p. 197.)

THE JUDICIAL COMMITTEE.—In Colonial causes the Privy Council had, from time immemorial, both original and appellate jurisdiction.

“Whenever a question arises between two provinces out of the realm as concerning the extent of their charters and the like, the King in his Council exercises original jurisdiction therein, upon the principles of feudal sovereignty. And so, likewise, when any person claims an island or a province, in the nature of a feudal principality, by grant from the King or his ancestors, the determination of that right belongs to the sovereign in council; as was the case 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. And to the same supreme tribunal there is, besides, in causes of a certain amount, an appeal in the last resort from the sentence of every court of justice throughout the colonies and dependencies of the realm. Practically, however, all the judicial authority of the privy council is now exercised by a committee of privy councillors, called the Judicial Committee of the Privy Council, who hear the allegations and proofs, and make their report to Her Majesty in council, by whom the judgment is finally given.” (Stephen's Comm., 4th ed., vol. 2, p. 470–1.)

The statutory jurisdiction of the Privy Council was first regulated in 1833 by the Act 3 and 4 William IV. c. 41, passed for the better administration of justice in the judicial branch of the Council. Under that law the Judicial Committee of the Council was definitely constituted. This tribunal was composed of the Lord President for the time being of the Council, the Lord Chancellor, and such Privy Councillors as held or had held office as Lord Keeper of the Great Seal, Chief Justice or judge of the Court of Queen's Bench or Common Pleas, Chief Baron or Baron of the Court of Exchequer, the Master of the Rolls, the Vice-Chancellor, the Judges of the Prerogative and Admiralty Courts, and the Chief Judge of the Court in Bankruptcy. This Act was amended and extended by 6 and 7 Vic. c. 38 (1843); 7 and 8 Vic. c. 69 (1844); 14 and 15 Vic. c. 83 (1851); 44 and 45 Vic. c. 3 (1881); 50 and 51 Vic. c. 70 (1887); which contain a variety of regulations prescribing the manner of conducting appeals from the colonies. At common law, since modified by statue, the Privy Council had jurisdiction to entertain appeals from the Lord Chancellor in matters of lunacy and idiocy, and in appeals from the ecclesiastical and maritime courts, and in matters of patent and copyright. See note, “Appeal to Queen in Council,” § 310, infra.

THE ERECTION OF THE COMMONWEALTH.—Three distinct stages in the erection of the Commonwealth are contemplated by this clause:—(1) The passing of the Imperial Act, (2) the issue of the Queen's proclamation appointing a day within one year after the passing of the Act, (3) the day when the people of the concurring colonies are

  ― 331 ―
united. These events and successive stages are not chronologically narrated in the clause. It will be conducive to clearness to consider them in the order of time in which they occur.