respect, such matters as he shall judge of importance to the public weal. And therefore, in the reign of Edward II, it was made an article of impeachment in parliament against the two Hugh Spencers, father and fon, for which they were banished the kingdom, "that they by their evil covin would not fuffer the great men " of the realm, the king's good counsellors, to speak with the "king, or to come near him; but only in the prefence and hear"ing of the faid Hugh the father and Hugh the fon, or one of "them, and at their will, and according to such things as plea" fed them."

3. A THIRD Council belonging the king, are, according to fir Edward Coke, his judges of the courts of law, for law matters. And this appears frequently in our statutes, particularly 14 Ed. III. c. 5. and in other books of law. So that when the king's council is mentioned generally, it must be defined, particularized, and understood, fecundum fubjectam materiam; and, if the subject be of a legal nature, then by the king's council is understood his council for matters of law; namely, his judges. Therefore when by statute 16 Ric. II. c. 5. it was made a high offence to import into this kingdom any papal bulles, or other processes from Rome; and it was enacted, that the offenders should be attached by their bodies, and brought before the king and his council to answer for fuch offence; here, by the expression of king's council, were understood the king's judges of his courts of justice, the subject matter being legal: this being the general way of interpreting the word, council.

4. But the principal council belonging to the king is his privy council, which is generally called, by way of eminence, the council. And this, according to fir Edward Coke's defcription of it', is a noble, honorable, and reverend assembly, of the king and such as he wills to be of his privy council, in the king's court or palace. The king's will is the fole constituent of a privy coun

f4 Inft. 53. && Inft. 110,

h

3 Inst. 125.

i

4 Inst. 53.

fellor; and this also regulates their number, which of antient time was twelve or thereabouts. Afterwards it increased to fo large a number, that it was found inconvenient for secrefy and dispatch; and therefore king Charles the second in 1679 limited it to thirty: whereof fifteen were to be the principal officers of state, and those to be counsellors, virtute officii; and the other fifteen were composed of ten lords and five commoners of the king's choofing *. But fince that time the number has been much augmented, and now continues indefinite. At the fame time also, the antient office of lord prefident of the council was revived in the perfon of Anthony earl of Shaftsbury; an officer, that by the statute of 31 Hen.VIII. c. 10. has precedence next after the lord chancellor and lord treafurer.

PRIVY counsellors are made by the king's nomination, without either patent or grant; and, on taking the necessary oaths, they become immediately privy counsellors during the life of the king that chooses them, but subject to removal at his difcretion.

THE duty of a privy counsellor appears from the oath of office', which confifts of seven articles: 1. To advise the king according to the best of his cunning and difcretion. 2. To advise for the king's honour and good of the public, without partiality through affection, love, meed, 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 there refolved. 6. To withstand all perfons who would attempt the contrary. And, lastly, in general, 7. To observe, keep, and do all that a good and true counsellor ought to do to his sovereign lord.

THE power of the privy council is to enquire into all offences against the government, and to commit the offenders into custedy, in order to take their trial in some of the courts of law. But their jurifdiction is only to enquire, and not to punish: and the persons committed by them are entitled to their habeas corpus by statute 16 Car. I. c. 10. as much as if committed by an ordinary justice of the peace. And, by the same statute, the court of starchamber, and the court of requests, both of which consisted of privy counsellors, were diffolved; and it was declared illegal for them to take cognizance of any matter of property, belonging to the subjects of this kingdom. But, in plantation or admiralty causes, which arife out of the jurisdiction of this kingdom, and in matters of lunacy and ideocy (being a special flower of the prerogative) with regard to these, although they may eventually involve questions of extensive property, the privy council continues to have cognizance, being the court of appeal in such causes: or, rather, the appeal lies to the king's majesty himself, affifted by his privy council.

As to the qualifications of members to fit this board: any natural born subject of England is capable of being a member of the privy council; taking the proper oaths for security of the government, and the test for security of the church. But, in order to prevent any persons under foreign attachments from infinuating themselves into this important trust, as happened in the reign of king William in many instances, it is enacted by the act of settlement, that no person born out of the dominions of the crown of England, unless born of English parents, even though naturalized by parliament, shall be capable of being of the privy council.

H

The privileges of privy counsellors, as fuch, confist principally in the security which the law has given them against attempts and confpiracies to destroy their lives. For, by statute 3 Hen. VII. c. 14. if any of the king's servants, of his houshold, confpire or imagine to take away the life of a privy counsellor, it is felony, though nothing be done upon it. And the reason of making this statute, fir Edward Coke" tells us, was because such servants have greater and readier means, either by night or by day, to destroy such as be of great authority, and near about the Stat. 12 & 13 W. III. c. 2.

n

3 Inft. 38.

king: king: and such a conspiracy was, just before this parliament, made by fome of king Henry the seventh's houshold servants, and great mischief was like to have ensued thereupon. This extends only to the king's menial servants. But the statute 9 Ann. c. 16. goes farther, and enacts, that any persons that shall unlawfully attempt to kill, or shall unlawfully assault, and strike, or wound, any privy counsellor in the execution of his office, shall be felons, and fuffer death as fuch. This statute was made upon the daring attempt of the sieur Guiscard, who stabbed Mr Harley, afterwards earl of Oxford, with a penknife, when under examination for high crimes in a committee of the privy council.

The dissolution of the privy council depends upon the king's pleasure; and he may, whenever he thinks proper, discharge any particular member, or the whole of it, and appoint another. By the common law also it was dissolved ipso facto by the king's demise; as deriving all it's authority from him. But now, to prevent the inconveniences of having no council in being at the acceffion of a new prince, it is enacted by statute 6 Ann. c. 7. that the privy council shall continue for fix months after the demise of the crown, unless sooner determined by the fucceffor.

CHAPTER THE SIXTH.

OF THE KING'S DUTIES.

I

PROCEED next to the duties, incumbent on the king by our constitution; in confideration of which duties his dignity and prerogative are established by the laws of the land: it being a maxim in the law, that protection and subjection are reciprocal *. And these reciprocal duties are what, I apprehend, were meant by the convention in 1688, when they declared that king James had broken the original contract between king and people. But however, as the terms of that original contract were in some measure disputed, being alleged to exist principally in theory, and to be only deducible by reason and the rules of natural law; in which deduction different understandings might very confiderably differ; it was, after the revolution, judged proper to declare these duties expreffly; and to reduce that contract to a plain certainty. So that, whatever doubts might be formerly raised by weak and scrupulous minds about the existence of fuch an original contract, they must now entirely cease; especially with regard to every prince, who has reigned fince the year 1688.

THE principal duty of the king is, to govern his people according to law. Nec regibus infinita aut libera poteftas, was the conftitution of our German ancestors on the continent. And this is not only confonant to the principles of nature, of liberty, of