Privy-council. Wherever a feudal system of government has prevailed it has been customary for the sovereign to summon, from time to time, a council of his barons or nobles to advise him in matters of state. This practice was adopted by feudal monarchs rather as a privilege than as a duty, since it gave them the means of enforcing from powerful feudatories an acknowledgment of their sovereign rights. The attendance of a baron at the court of his lord was a tacit admission of the suzerainty of the latter.
Under the early English kings the royal council was styled the Aula or Curia Regis. It consisted of the Chancellor, the Justiciary, the Lord Treasurer, the Lord Steward, the Chamberlain, the Earl Marshal, the Constable, and any other persons whom the king chose to appoint; the two archbishops belonged to it as of right; and the Comptroller of the Household, the Chancellor of the Exchequer, the Judges, and the King's Serjeants were occasionally present at its meetings. The authority of the curia was originally co-extensive with that of the king, in whom all the powers of government, judicial and administrative, were united; but its constitution gradually underwent a complete change. In the first place, a distinction came to be drawn between the body of the curia—the magnum or commune concilium, which was the germ of the modern parliament—and the concilium assiduum—a permanent committee of the curia, which was constantly and closely attached to the person of the king. Then the two councils were themselves subdivided. The Court ad scaccarium, or Court of Exchequer, which sprang from the concilium assiduum, took cognisance of affairs of finance, then of actions affecting the revenue, and lastly of civil suits generally. The Courts of King's Bench and Common Pleas—descended from the magnum concilium—respectively acquired their separate jurisdictions. These changes had been accomplished by the end of the reign of King John. They were merely successive delegations of the royal authority, and left the king's prerogative as the fountain of law unaffected. In spite, therefore, of the establishment of regular tribunals, the sovereign still continued to exercise judicial authority, if not personally, at least through the agency of his chancellor and of the council, whose jurisdictions, afterwards so clearly distinguishable, were originally united. In the time of Edward III., however, the Chancery was rapidly becoming a separate tribunal; and by the end of the reign of his successor its establishment as the great court of equity had been effected. The concilium assiduum, also, had become a separate assembly of royal officials, bound by a particular oath and paid a regular salary, equally distinct from the courts of law and equity and from the magnum concilium, and regarded with no little jealousy by them both.
From the accession of Richard II. to the end of the reign of Henry VI. the Privy-council were not merely the servants but the ministers of the crown, and acted as a check upon the royal authority. While in theory the king could choose and dismiss the members of the council at his pleasure, the exercise of this prerogative was in fact subject to various restrictions. Some of the officers of the state were members of the council ex officio. The two archbishops claimed to belong to it as of right. The presence of other ecclesiastics, with whom the papal was a higher authority than the royal, introduced a further element of independence, and the occasional efforts of parliament to wrest the appointment of privy-councillors from the king made his influence over the council still weaker. The Privy-council exercised its control over the royal authority in two ways. Sometimes it merely advised and recommended. A more powerful kind of check was the refusal of the chancellor to affix the Great Seal to any royal grant of which the council disapproved. The English sovereigns endeavoured to defeat the operation of this check by the use of a privy-seal, and by retaining the Great Seal in their own hands. But the privy-seal passed into the custody of a separate official, and by the middle of the 15th century the council had succeeded in bringing every royal grant under its own notice at each stage in the procedure necessary for obtaining it. In the time of Henry V. the council assumed the name of Privy-council, by which it is now generally known. Its functions were then partly administrative and partly judicial. The former included the control of matters of finance, the establishment of staples—i.e. markets in which alone certain commodities could be exposed for sale—the regulation of the statutes which limited freedom of commerce between different parts of England, and the preservation of the peace. The latter cannot be better defined than in the words of Mr Dicey: 'Whenever, in fact, either from defect of legal authority or from want of the might necessary to carry their decisions into effect, the law courts were likely to prove inefficient, then the council stepped in by summoning before it defendants and accusers.'
In the third or modern period of its history, which commenced when the Wars of the Roses were drawing to a close, the character of the Privy-council has undergone a variety of changes. The destruction of the feudal system, and the overthrow of the old ecclesiastical supremacy, reduced it to a position of absolute dependence on the crown. At the same time the power of the council as regards the people was greatly increased (1) by the subjection of particular places to its control—e.g. Ireland under Poynings' Act (1494), and the Channel Islands; (2) by the exercise of the right to issue proclamations; (3) by the erection of new courts under its supervision—e.g. the High Commission and the Court of Requests; and (4) by the extension of its judicial authority in the Court of Star-chamber (q.v.). The judicial powers of the Privy-council were, however, restricted by the Long Parliament (16 Car. I. chap. 10, sect. 3), and in the 17th and 18th centuries its functions as the adviser of the crown in matters of government and state policy were gradually usurped by the Cabinet (q.v.).
Present Constitution and Functions.—The list of privy-councillors now includes the members of the royal family, the Archbishops of Canterbury and York, the Bishop of London, the great officers of state, the Lord Chancellor, the Lord Chief-justice of England, the Lords Justices of the Court of Appeal, the President of the Probate, Divorce, and Admiralty Division, the law officers of the crown, the members of the Judicial Committee (see below), several of the Scotch judges, the Speaker of the House of Commons, the Ambassadors, some of the Ministers Plenipotentiary and Governors of Colonies, the Commander-in-chief, the First Lord of the Admiralty, the Vice-president of the Board of Trade, the Paymaster of the Forces, &c., and necessarily all the members of the cabinet. Members of the council are in their collective capacity styled 'His [or Her] Majesty's Most Honourable Privy-council'; individually each member is styled 'Right Honourable.' (The Lord Mayor of London, although styled 'Most Honourable,' is not a privy-councillor. See Notes and Queries, first series, iii. 496; iv. 9, 28, 137, 157, 180, 236, 284; ix. 137, 158.) Under the authority of letters-patent dated 28th May, 10 James I. 1612, privy-councillors take precedence after Knights of the Garter. Amongst themselves they take rank according to seniority of appointment when no other principle of classification is applicable in the individual instances. Privy-councillors are appointed by the sovereign without either patent or grant, and are subject to removal at his discretion. By the common law, the Privy-council, as deriving its whole authority from the sovereign, was dissolved ipso facto upon the demise of the crown; but, in order to prevent the inconvenience of having no council in being at the accession of a new prince, it was enacted (6 Anne, chap. 7, sect. 8) that the Privy-council shall continue for six months after the demise of the crown, unless sooner determined by the successor of the deceased sovereign (cf. Stephen, Comment. vol. ii. p. 491). It is now understood that no members attend the deliberations of council except those who are specially summoned. In ordinary cases only the ministers, the great officers of the Household, and the Archbishop of Canterbury are summoned; but on some extraordinary occasions summonses are sent to the whole council. (Thus, on November 23, 1839, the whole of the Privy-council were summoned to Buckingham Palace to receive the Queen's announcement of her intended marriage with Prince Albert.) Meetings of council are usually held at intervals of three or four weeks at the sovereign's residence; and six privy-councillors at least, with one of the clerks of council, constitute a meeting of council.
A privy-councillor must be a natural-born subject of Great Britain. His duties are defined by the oath of office as follows: (1) to advise the king 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, need, doubt, or dread; (3) to keep the king's counsel secret; (4) to avoid corruption; (5) to help and strengthen the execution of what shall be resolved; (6) to withstand all persons who would attempt the contrary; and (7) to observe, keep, and do all that a good and true counsellor ought to do to his sovereign lord. The personal security of a member of the Privy-council was formerly safeguarded by several statutes repealed by 9 Geo. IV. chap. 31. Immediately on the decease of the sovereign the Privy-council assembles and proclaims his successor, the Lord Chancellor affixing the Great Seal to the proclamation. The members of the Privy-council are then re-sworn as council of the new sovereign, after which a privy-council is held, and the sovereign makes declaration of his designs for the good government of the realm, and subscribes the oaths.
The functions of the Privy-council in modern times depend on a great variety of statutes, and it is only possible here to give a brief and very general survey of the whole field. The subject is one full of confusion, partly because of the vast mass of detail which it involves, and partly because the long historical development which the Privy-council has undergone has borne its natural crop of legal fictions, anomalies, and technicalities. It will be convenient to divide our observations under four heads:
(1) The Privy-council as synonymous with the Executive Government.—It is a commonplace of constitutional law that the cabinet, which is the organ of the executive government, is quite unknown to the law. In theory the cabinet is only a committee or inner circle of the Privy-council, and the Privy-council is still the only instrument through which the sovereign can exercise his prerogative. But the theory no longer corresponds with the facts; the power is exercised by the cabinet alone, and the Privy-council is never consulted. This is the sense which must be attached to the statements that the 'sovereign in council' has wide authority in the colonies, can make and enforce laws in such colonies as have no representative assemblies, and can allow or disallow the legislative acts of such as do possess them. The case is the same with orders in council relating to blockades, reprisals, or embargoes. And, in harmony with these expressions, it is the regular course in acts of parliament conferring specific powers on the executive government to confer them in terms on the 'sovereign in council.' In such cases the mention of the council is purely formal, and if the power is exercised it will be by the ordinary government (cf. also 13 and 14 Vict. chap. 59, sect. 30). It may be added that, as the executive power is thus dependent on the authority of the legislature, so no executive act can be done, and no order in council can be made, which an act of parliament cannot override.
This is now a recognised mode in which the legislature delegates defined legislative functions to the executive; and it is on this principle that the Board of Trade, for example, can make regulations for carrying out the provisions of an act of parliament, though the act may simply state, 'It shall be lawful for Her Majesty by order in council' from time to time to make such regulations.
(2) The Privy-council as a separate Department of State.—As the aula regis was the mother of parliament and of the various courts of law, so the Privy-council has given being, in quite recent times, to several administrative bodies (such, for instance, as the Board of Trade and the Local Government Board), to which many of its own administrative powers have been transferred. The different stages or methods in this process of differentiation are curious. The Board of Trade, established on its present basis in 1782, was at first, and still is in name, a committee of the Privy-council; it is defined in the Interpretation Act, 1889, sect. 12, as 'the Lords of the Committee for the time being of the Privy-council, appointed for the consideration of matters relating to trade and foreign plantations.' But for all practical purposes it is a distinct department of state, controlled by a president, who is a member of the government. The Board of Health, created 1848, was ten years later superseded partly by the Home Office, partly by the Privy-council. In 1871 the Local Government Board was created, in succession to the Poor-law Board, and to it were transferred many duties formerly exercised by the Privy-council in relation to the public health, such, for example, as the appointment and control of public medical officers and the carrying out of the Vaccination Acts. In 1889 a new Board of Agriculture was established, and took over the powers of the Privy-council in connection with the Destructive Insects Act and the Contagious Diseases (Animals) Acts. Neither the Local Government Board, nor the Poor-law Board (which, created in 1847, ceased to exist, as we have already mentioned, in 1871), nor the Board of Agriculture was ever formally a committee of the Privy-council, but in each case a portion of the administrative functions of the council was transferred to the new department, and the historical connection is illustrated by the fact that in all these cases the Lord President of the council is named first in the list of ex officio members. The Committee of Council on Education, established in 1839, remains in a different position. It has not been completely detached from the Privy-council and erected into a distinct department of the administration; and the member of the government who presides over it is still known as the Vice-president of the Council on Education. But it is commonly called the Education Department, and its complete detachment would require little more than a change in the designation of its chief, and a clear delimitation of the power and responsibility of the Lord President and the Vice-president of the Council. The Vice-president of the Council is already virtually minister for Education.
In 1885 the Secretary for Scotland Act further transferred to the new secretary the powers and duties of the Privy-council in connection with the Board of Manufactures and the Public Health Acts so far as Scotland is concerned. The Secretary for Scotland was also entrusted with control over Scottish education, under the title of Vice-president of the Scotch Education Department, which is still nominally a standing committee of the Privy-council.
With regard to the administrative business which remains with the Privy-council as a separate department of state it must be remembered as a general principle that the work is actually done by permanent government officials, under the control of the Lord President of the Council, who is responsible to parliament and to the country. It is believed that this is substantially the case even when special committees are appointed by act of parliament for special administrative purposes. That the members of such committees are little more than advisers results naturally from the modern doctrine of ministerial responsibility. With this limitation, committees of the Privy-council exercise in many cases a delegated legislative power. For example, in the grant of charters to boroughs under the Municipal Corporation Act, 1882, every petition for a charter is referred to a Committee of Council, which has power to consider it, and to settle a scheme for adjusting the rights and liabilities of the existing local authority. Under the Medical Acts the Privy-council is entrusted with the supervision of the qualifications and the registration of medical practitioners; and kindred powers are conferred by the Pharmacy Act, 1868, and the Veterinary Surgeons Act, 1881. For the Committee of Council on Education, see EDUCATION. A Universities Committee of the Privy-council was constituted for England in 1877, and for Scotland in 1889 (see UNIVERSITIES).
The style under which administrative duties are imposed on the Privy-council varies. Sometimes it is referred to simply as the Privy-council; occasionally a clause is added that 'all powers vested in the Privy-council by this act may be exercised by an order in council made by two or more of the Lords and others of H.M. Most Honourable Privy-council' (Veterinary Surgeons Act, 1881, sect. 18). Sometimes the duty is laid upon 'the Lords and others of H.M. Most Honourable Privy-council, or any three or more of them of whom the Lord President of the Council, or one of H.M. principal secretaries of state for the time being, shall always be one' (9 and 10 Vict. chap. 96).
(3) The Privy-council in its widest Comprehension.—The Privy-council, as a body, has in modern times no regular duties at all, administrative or judicial. Membership of it is a coveted honour, conferring rank, precedence, and titular dignity. It cannot, however, be fairly described as obsolete or dead, and on rare and abnormal occasions it has exercised powers not falling strictly within the sphere of ordinary legislative or judicial authority. Thus, the Privy-council in 1788 took on itself the duty of inquiring into the sanity of George III. and receiving the reports of the royal physicians. In 1821 it determined the constitutional question of Queen Caroline's right to be crowned as Queen Consort. But in general it is a force kept permanently in reserve, apart from the working elements of the constitution. And, as the character of British constitutional growth has ever been the adaptation of old expedients to newly felt needs, the possibility remains that some unforeseen constitutional convulsion may recall this ancient and honourable body from its merely nominal dignity to at least temporary life and usefulness.
(4) The Judicial Committee of the Privy-council.—The most important of all the offshoots of the Privy-council is the Judicial Committee. Officially it is merely a committee. In essence it is a court of law, possessing a wide and (indirectly owing to its connection with the Privy-council) a peculiarly elastic jurisdiction, which includes appeals from the ecclesiastical courts, petitions for the extension of letters-patent for inventions, and, above all, appeals from Indian and colonial courts of law. The history of this last branch of the appellate jurisdiction of the Privy-council is exceedingly complicated, and we cannot enter upon it minutely here. Three distinct and conflicting theories have been promulgated upon the subject. (1) According to Pownall (Administration of the Colonies, 1774), when the necessity for an appeal from the decisions of the colonial governors, who, although not properly qualified lawyers, were yet called upon to preside in the courts of law, was clearly apprehended, the one precedent of a judicature within the realm possessing foreign jurisdiction which presented itself to the minds of the English sovereign and his advisers was that of the jurisdiction of the Privy-council over the Channel Islands. Since the time of King John (1204) appeals from the royal courts in Jersey and Guernsey—with the latter of which Alderney and Sark were for judicial purposes united—had been brought before the king and his council in England. Now the English sovereign claimed—a claim which the colonials acquiesced in, and which the House of Commons itself had tacitly admitted—that his colonial settlements and possessions were the demesnes of the crown, lying quite beyond the jurisdiction or cognisance of the state. The historical relation between the feudal duchies of King John and the royal plantations and possessions abroad being so intimate, no great effort of administrative imagination was necessary to make the analogy complete. Thus it came to pass that appeals from the courts constituted in the various colonies were taken not to the House of Lords, nor to the courts of law and equity, but to the king in council. (2) A second theory is suggested by Macqueen—viz. that the Privy-council originally entertained colonial petitions under the authority of a reference from the peers, and that, when the intervals, gradually becoming longer, between the sessions of parliament rendered this mode of redress unsatisfactory, the council came to discharge in their own right those functions which would have been delegated to them by the peers if parliament had been summoned. (3) The statute 25 Hen. VIII. chap. 9 appears to suggest a third explanation of the origin of the appellate jurisdiction of the Privy-council. Under that act, a subject aggrieved by the decision of any court in any part of the king's dominions might appeal to the king in chancery. Every such appeal was referred by commission under the Great Seal to the Court of Delegates, the decisions of which were, in spite of a distinct prohibition in a statute of Elizabeth, reviewed upon petition by the Privy-council. These theories relate to different periods of time, and thus, although apparently conflicting, are not necessarily irreconcilable. One central fact, the right of the sovereign to entertain an appeal from any colonial court, is undisputed and indisputable. We know that, in less than a century, the body to which the crown entrusted the administration of colonial affairs was repeatedly reconstituted, and there is no reason why the judicature for colonial appeals may not have undergone similar changes in the course of three centuries. The modern history of the judicial committee is well known. The statute 2 and 3 Will. IV. chap. 92 transferred to the king in council the jurisdiction of the Court of Delegates; 3 and 4 Will. IV. chap. 41 formally created the judicial committee, and vested in it all the judicial authority of the Privy-council, the Commissioners of Appeals in prize causes, and the Court of Delegates. The judicial committee comprises the Lord President of the Council, the Lord Chancellor, the Lords Justices, and such other members of the Privy-council at large as shall hold or shall have held certain judicial or other offices enumerated in the acts. By 34 and 35 Vict. chap. 91 Queen Victoria was empowered by order in council to appoint by warrant under her sign-manual four additional paid judges, each being, or having been, a judge of one of the superior courts at Westminster or chief-justice of Bengal, Madras, or Bombay, to act upon the judicial committee. Under the Appellate Jurisdiction Act, 1876 (sect. 14), provision was made for the substitution of two additional 'lords ordinary of appeal' for the four paid judges appointed under 34 and 35 Vict. chap. 91, and thus for the ultimate merging of the judicial committee in the House of Lords.
The conditions of appeal from colonial courts to the Privy-council are prescribed, sometimes in the charters of justice constituting such courts, sometimes by colonial acts, usually by orders in council. The customary conditions are that the amount at stake should exceed a certain sum in value, that leave to appeal should be asked from the court below within a certain time after the date of the judgment appealed against, and that proper security should be found. It is, however, the inherent prerogative right, and on proper occasions the duty, of the King or Queen in council to exercise an appellate jurisdiction over all colonial courts and in all colonial cases, civil as well as criminal. In the exercise of this jurisdiction, and in the absence of any charter or statutory right, the Sovereign in council may grant special leave to appeal in civil cases of substantial, general, or constitutional importance, where the judgment appealed against was plainly wrong or attended with sufficient doubt to justify the judicial committee in recommending that it should be reviewed. The Sovereign in council will not, however, review or interfere with the course of criminal proceedings, unless it is shown that, by disregard of the forms of legal process, by some violation of the principles of natural justice, or otherwise, grave and substantial injustice has been done.
The decisions of the judicial committee are pronounced by one member of the committee only, and not, according to the usual practice in divisional courts, the court of appeal, and the House of Lords, by each of the presiding judges. The student of the Privy-council reports is unable, therefore, to tell whether or not their lordships are unanimous, and, if not, who constitute the majority.
The Lord President of the Council is the fourth great officer of state, and is appointed by letters-patent under the Great Seal. The office is very ancient, and was revived by Charles II. in favour of the Earl of Shaftesbury in 1672.
Scotland once had a Privy-council of its own, but it was merged in that of England by 6 Anne, chap. 6. There is a separate Privy-council for Ireland, which in 1891 consisted of fifty-eight members, who are sworn pursuant to a sign-manual warrant directed to the Lord-lieutenant.
See Dicey's Privy-council (1860; new ed. 1887); Hearn's Government of England (ed. 1887); Macpherson's Practice (1860; new ed. 1873); Macqueen's Appellate Jurisdiction of . . . the Privy-council (1842); Conditions of Appeal from the Colonies to the Privy-council (1888); G. Wheeler, Privy-council Law (1894).