committee of the greater body. of the king's immediate officers and advisers, who were charged, under the king's direction, with the whole work of central or national administration. From the existing evidence as to the relation of the two bodies to each other, which is vague and shadowy in the extreme, the conclusion has been heretofore reached that the lesser or continual council stood to the greater as a concilium in concilio; or, in modA standing ern language, that the lesser council was a standing committee of the greater body.1 The continual or "permanent council under the early Norman kings consisted of the great officers of state, the chancellor, the great justiciary, the lord treasurer, the lord steward, the chamberlain, the earl marshal, the constable, and any other persons whom the king chose to appoint; and of the two archbishops, who claimed a right to form a part of every council, public or private."2 This group of councillors, whom the Norman kings frequently changed, appears as a definitely organized governing body when, upon the accession of the child king Henry III., it became necessary for the first time after the Conquest to form a council of From that time it regency for the government of the state. is possible to trace the existence of a permanent royal council composed of the king's personal advisers, who constitute a resident governing body for the dispatch of public business, separate and apart from the greater body known as the common council of the kingdom. As the regent and other great officers of state who composed the permanent council during the minority of Henry III. were chosen by the great council, it is probable that from that time can be traced the beginnings of the constitutional doctrine that the king can do no Beginnings wrong, and that the ministers who advise him are responsible to the assembled representatives of the nation who have a ministerial consultative voice in their appointment. So firmly did the idea that the royal authority should be wielded with the advice of an organized and responsible body of state officials become established during the earlier part of the reign of Henry III. that, when he attempted after his emancipation to enforce his personal rule with the aid of foreign favorites and dependent clerks, the baronage resented the attempt by an open appeal 1 See above, pp. 242-245, 438. 8 See above, pp. 396, 397. Can be traced as a definitely organized body from the minor ity of Henry III. of the doctrine of responsibility. 2 Dicey, The Privy Council, p. 7. to arms. the doctrine should be One of the leading concessions which Henry was required to make, after he had surrendered himself to the baronage under the lead of Leicester and Gloucester, was that a committee of fifteen, under the control of the parliament, should advise him in all ordinary matters of government.1 During the reigns which follow, the principle that Growth of the royal power could thus be limited and controlled by the that the action of the council, and that the council itself could be crown controlled by the parliament, was brought into requisition controlled whenever a weak or wayward king rendered its assertion council, and the council necessary and expedient. Although the authority of the by the parcouncil, as a limitation upon the royal prerogative, naturally liament. waned in the presence of so great a king as Edward I., even Edward seems to have recognized its existence as a part of the general political scheme,2 and in his day it became more definitely organized as the constitutional centre of the highest state government.3 by the scope of the After the parliament had established its right to enact all General the more important and permanent acts of national legisla- council's tion, and after the three law courts, and the court of the duties. chancellor, had won the right to hear and determine all ordinary litigation, a mass of legislative and judicial work still remained to the council in addition to its executive busi ness. tive func 1. The residuary right of legislation, which remained to Its legislathe king after the establishment of the parliamentary sys- tions. tem, is generally known as the ordaining power of the king in council. It was a part of the duty of the council to advise the king whenever the issuance of an ordinance became necessary. functions. 2. In like manner it was the duty of the council to advise Its judicial the king in the exercise of the extraordinary judicial powers which remained to the crown after the complete organization of the great courts of law and equity. Such authority was exercised either by the issuance of special commissions of "oyer and terminer," or by the direct decision of knotty cases by the king in council. 3. Although the council was thus called upon to discharge 8 See Gneist, The Eng. Parliament, 1 See above, p. 401. 2 Stubbs, Const. Hist., vol. ii. p. 258. p. 115 (Shee's trans.). Its execu tive functions. The council during the reigns of Edward II. and Richard II. both legislative and judicial duties, the fact remains that it was primarily an executive body charged with the duty of carrying out, at home and abroad, the diplomatic, financial, and military work which devolved upon the king as chief executive. As an administrative body it became the duty of the council to pass upon the vital questions of war and peace, and to make treaties with foreign nations; to manage the finances by providing the best means to raise revenue, and at the same time by looking after the method of their expenditure; to summons the feudal army and county militia, and to provide means for the maintenance of paid armies; to control aliens, and at the same time to a certain extent to regulate trade; and to preserve the king's peace by the assertion of the royal authority whenever the ordinary process of law proved inadequate. In addition to these duties the council was also called upon to pass upon a mass of miscellaneous business brought before it by petitions in which complaints were made of all such abuses as naturally arose out of an imperfect and inadequate system of judicial and financial administration.1 During the weak and troubled reigns of Edward II. and Richard II. the council was again employed, as in the days of Henry III., as an intermediary body through which the parliament at one time supersedes, at another limits and controls, the exercise of the royal prerogative. When in 13101311 Edward provoked a conflict with the nation by putting himself in the hands of the favorite Piers Gaveston, the royal power was for a time practically transferred to a committee of prelates and barons called the Ordainers, who provided, in a scheme of reform which they devised for the future government of the realm, that the king should appoint the great officers of state only with the counsel and consent of the baronage, and that all such officials should be sworn in parliament. When in 1386 a serious breach occurred between the parliament and Richard II. upon the demand of the for 1 A definite idea of the extent and variety of business which came before the council can only be formed by a study of the minutes of the council itself. As illustrations, see Proceedings of Privy Council, i. 128, 289; ii. 165, 167, 168; iii. 115, 210, 355; iv. 76, 114, mer that certain offensive ministers should be removed from office, the king was at last compelled not only to yield to that demand, but also to submit to a practical transfer of the royal power to a committee with Gloucester at its head. This committee, which was to hold office for one year, was not only empowered to regulate the royal household, but also to undertake the reform of the entire administration of the kingdom.1 after the ac 1404 that bers of the After the accession of Henry IV. the estates were not The council slow to reassert the principle that the exercise of the royal cession of authority should be limited and controlled by the action of Henry IV. the council, and that the council itself should be controlled by the parliament. It is not the baronage, however, as in the days of Henry III., Edward II., and Richard II., who take the initiative, but the commons, who now appear as the more aggressive element, which demands that the executive government shall be conducted in accordance with the views of the national assembly. In the parliament of 1404 the Commons commons ventured not only to attack the organization of the request in royal household, but also to request the king to appoint in the memparliament the servants who were to compose his great and council be appointed continual council, a request which was promptly complied in parlia with. Two years later, after the selection of a council under ment. like circumstances, the commons informed the king that their motive in making the grant then asked was not only their fear of God and their love for him, but "the great confidence which they had in the lords elected and ordained to be of the continual council."3 Passing over the reign of Henry V., during which the absence of conflict between the crown and the parliament rendered the restraining power of the council unnecessary, a period is reached during which the council attained its highest point of activity and authority. The mi- The council nority of Henry VI. threw the executive government into the pointed hands of a council which derived its existènce, not from royal upon the nomination, but from parliamentary election. The coun- Henry VI. cil of regency thus organized at once assumed a position of 1 Rot. Parl., iii. p. 221; Statutes, ii. PP. 39-43. The commission issued to the committee of reform in November was turned into a statute dated 1st December. 2 Rot. Parl., iii. pp. 525, 526, 530. Lords' Report, vol. i. p. 368. thus ap accession of upon the council and fixes the pay of its members. commanding importance, an importance not unfettered, however, by restraints imposed by the power that created it. The parliament, not content with controlling the nomination of the councillors, claimed the further right to regulate their procedure by the imposition of rules and regulations which Parliament they were bound by oaths to obey. A series of regulations imposes of this character, beginning with the reign of Edward I., reappears in an improved form in the parliament rolls for 1406, 1424, and 1430,2 as well as in the records of the privy council itself. In addition to the restraints imposed by such regulations, the parliament also retained in its hands the right to regulate the pay of the councillors. As early as the reign of Richard II., there existed a body of regularly paid and sworn councillors; during the reign of Henry IV. the commons. pray that the lords of the council be suitably rewarded; and during the minority of Henry VI. their pay was regulated by a scale which guaranteed to each member a fixed sum according to his rank or dignity. During the period last named, it is possible to distinguish the sworn and paid councillors, who attend regularly to the king's business, from the main body of the council, which, upon special occasions, also embraced the judges and justices, and such other advisers as the king The sworn might see fit to specially summon. The sworn and paid councillors who thus devoted themselves regularly to the king's business began to be known, during the reign of Henry VI., as the "privy council," the private or inner circle of the greater body generally known as the "ordinary council," or simply as "the council." Or, to express the distinction in the words of one who has made the history of the privy council the subject of special investigation: "The minority of Henry VI., by flinging the whole government into the hands of the sworn councillors, must have rendered the distinction between the habitual members of the council and paid councillors come to be known as the "privy during the council," reign of Henry VI. subscribed by the councillors.". |