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CHAPTER V.

THE PRIVY COUNCIL AND ITS COMMITTEES.

THE highest administrative department under the Crown is the Privy Council, of which the legislative and judicial functions have been described in former chapters; and the administrative functions remain here to be considered.

These duties are now in general discharged by committees and select portions of the Privy Council, of which the principal is the Cabinet. The Privy Council at large was formerly the constant council of the Sovereign in all weighty matters of state, but is now rarely assembled all together; the duties which anciently devolved upon general meetings of the Council being now, for the most part, discharged by the Cabinet, which (as we have seen) consists of those members of the Privy Council who are, from time to time, the principal advisers of the Crown. The history of this change we have already had occasion to consider. Before the distinction between the Cabinet and the Council at large, and the general exclusion of the latter from business of state, were established, the resolutions of the Crown, whether as to foreign alliances or the issue of orders and proclamations at home, or other public acts of Government, were not finally taken without the deliberation of the Privy Council, whom the law recognized as the sworn and notorious Councillors of the Crown (a).

The business transacted by the Privy Council, so long as

(a) 2 Hallam's 'Constitutional History,' p. 535, quarto ed.

it continued to manage the general administrative government, included a large portion of the duties which subsequently were assigned to the Secretaries of State. Thus, it appears that in the 22 Hen. VI. (1443–4), grants which now pass through the office of the Secretary of State were superintended by the Council. Grants were then required to be made upon bill or petition signed by the suitor, and by a Lord of the Council, or "other person about the King." In matters relating to justice such bills were sent to the Council to be referred to the proper Courts; petitions for matters of grace were either referred to the Council for advice, or if granted by the King without such reference were delivered to the King's Secretary to prepare letters accordingly directed under the signet to the Keeper of the Privy Seal, and from thence, under the Privy Seal, to the Chancellor. But if the Keeper of the Privy Seal, upon receipt of the letters under the signet, "should think the matter to be of great charge, he is to have recourse to the Lords of the Council, and open to them the matter, to the intent the King may be advertised thereof before it passes "(a).

In the course of time, the Council was, for the more convenient dispatch of public business, divided into committees, which transacted much business which now devolves on separate public departments. Thus in 1620-1, there was a committee of the Council for War, which included several of the King's principal advisers; and another committee in the same reign was the Committee for Foreign Affairs. After the Restoration, a plan was proposed, apparently with the Royal sanction, for a systematic division. of the Privy Council into committees, and some (at least)

(a) Cottonian manuscript, cited p. 24 of Materials for the History of the Public Departments: London, printed by W. Clowes and Sons, Stamford Street, for her Majesty's Stationery office, 1846' [Private]. This work was compiled by Mr. F. S. Thomas, of the Record office, and contains a valuable collection of materials for the history of the principal public departments.

of these committees were actually established. The plan included a committee for Foreign Affairs, which was also to correspond with Justices of the Peace, and other officers in the counties; a committee for Admiralty, Naval and Military Affairs, so far as they were fit to be brought before the Council, without intermeddling with what concerned the proper officers; a committee for petitions of complaint and grievance, to which "all matters which concern acts of state in the Council" were to be referred; a committee for Trade, to which matters concerning foreign plantations, Ireland, Scotland, and the Channel Islands, were to be referred. The principal Secretaries of State were to be of all committees, and "besides the established committees, if anything extraordinary happens which requires advice, whether in matters relating to the Treasury, or of any other mixed nature, other than is afore determined, his Majesty's meaning and intention is, that particular committees be in such cases appointed for them, as hath been heretofore accustomed; such committees to make their report in writing, to be offered to his Majesty at the next council day following. If any debate arise, the youngest councillor to begin, and not to speak a second time” (a).

At the present time, the most important meetings of the Privy Council, in its administrative capacity, are of two distinct kinds,-meetings in the presence of the Queen in Council; meetings of the Cabinet not held in the presence of the Queen.

With respect to the former, the occasions on which the Queen herself holds Privy Councils are determined partly by usage and partly by statutes. Many of the most important acts of state performed by the Sovereign, and some others of a more formal character, are thus performed by

(a) Manuscript in the State Paper Office, said to be without date, but probably written soon after the Revolution, cited Thomas's Hist. of Public Departments, p. 23.

From Roger North's Life of Lord Guilford, p. 125, it appears that the Committee of the Privy Council for Foreign Affairs was in active operation during the reign of Charles II., and was attended by the King.

the Queen in Council. It is to be observed, that these Acts are, in law, the Acts of the Queen in Council, and not of the Queen and Council; that is, they derive their authority and validity from the Crown only. To the Privy Councils held by the Queen, those members only of the Council are usually summoned who are in the Cabinet.

Among the more important matters of state which are resolved upon by the Queen in Council, are those which are contained in Orders in Council, which are subsequently published by Proclamation. The nature and authority of proclamations we have already had occasion to consider, and we have seen that in many cases the time and manner in which statutes shall come into operation, is expressly left to be determined by Orders in Council. In these cases the functions of the Privy Council are of a legislative kind, as was pointed out in the commencement of this work. So, likewise, are laws and ordinances made in Council for those colonies and settlements for which the Queen in Council is empowered to legislate. There are other functions of the Queen in Council which are more strictly of an administrative character. Such are the selec tions of sheriffs for England and Wales, and the issue of proclamations of war and peace.

The writers on the Constitution do not appear to have ever established any general distinction between those Royal prerogatives which are properly exercised in Council and those which are exercised on the advice of individual ministers. The distinction depends partly on usage and partly, in special cases, upon Acts of Parliament. It is, however, probably correct to say that the political acts of the Crown which are of the most general importance are usually performed in Council, and other acts of less extensive operation, upon the advice of individual ministers. Thus, the nomination to offices under the Crown and the issue of pardons belong to the latter class of prerogatives; procla mations for the summons, prorogation, and dissolution of Parliament, to the former class.

Though there is no authentic general rule as to the prerogatives of the Crown which may not be exercised otherwise than in Council, it has been frequently declared in Parliament that important acts of State ought not to be resolved upon without the advice of Council. We have already referred to some instances of this kind, e. g. the resolution in Parliament in 9 Edw. II. that no acts of State should be done without the advice of Council; the impeachment of the De Spencers later in the same reign for excluding good counsellors from advising with the King; the impeachment of De la Pole in 28 Hen. VI. for concluding a convention of peace without the assent of the Privy Council; the complaint of the Commons in the commencement of the reign of Charles I., that he was led by the advice of the Duke of Buckingham, and did not duly consult his Council (a). Again, one of the charges of the impeachment of Lord Treasurer Danby in 1678 was, that he carried on diplomatic correspondence without communicating with the Council; and one of the charges in the impeachment of Lord Somers in 1701 was, that he affixed the Great Seal to the Partition Treaty without advice of the Privy Council (b).

The meetings of the Privy Council in the presence of the Sovereign are recognized by statutes, proceedings of Parliament, and by ancient writers upon the laws of England. For Cabinet Councils there is not the same authority. They are merely voluntary meetings of certain members of the Privy Council, at which the Queen is not present; but their proceedings are usually communicated to her by the ministers who have been present at them. The law does not appear to recognize any power in the members of the Council, sitting without the presence of the Sovereign, beyond the power of committal of accused persons, referred to in a preceding chapter, and the statutory powers given to particular members of the Council.

The importance of the Privy Councils held by the Queen (a) Ante, p. 239. (b) 11 State Trials, 622; 14 State Trials, 253.