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THE PEIVY COUNCIL 
 
 DICE Y 
 
THE PRIVY COUNCIL 
 
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 I860 
 
 BY 
 
 ALBERT VENN DICEY, B.C.L. 
 
 FELLOW OF ALL SOULS COLLEGE 
 VINERIAN PROFESSOR OF ENGLISH LAW IN THE UNIVERSITY OF OXFORD 
 
 Xonfcon 
 
 MACMILLAN AND CO. 
 AND NEW YORK 
 
 1887 
 
 [All rights reserved] 
 
^ 
 
 1ENRY MORSE 
 
 PRINTED BY HORACE HART, PRINTER TO THE UNIVERSITY 
 
PREFACE, 
 
 THIS book is merely the Arnold Essay of 1 860 
 republished for the use of students in a new and 
 more convenient form. When I resolved, after 
 some hesitation, to republish an essay which had 
 been long out of print, two courses only were, it was 
 clear, open to me. I might, on the one hand, resume 
 studies which had been laid aside for many years, 
 and re-write my whole account of the Privy Council 
 under the guidance of the new light which during 
 the last quarter of a century has by the labours of 
 Freeman, Stubbs, Gneist, and their followers been 
 thrown on the annals of England. To do this 
 would, however, have involved nothing less than the 
 composition of a new book, and the performance of 
 a task for which more pressing occupations, whilst 
 they leave me the inclination, deny me the time. I 
 might, on the other hand, reprint the essay as what 
 it is a youthful and immature attempt to sketch 
 out the development of a great institution. This 
 is the course I have actually adopted. The book 
 may, it is hoped, be of some little advantage to 
 students. But the best result which can by 
 possibility flow from its republication is that its 
 very defects may stimulate some person more com- 
 petent than myself to follow out much farther than 
 I have been able to do, the many interesting 
 enquiries suggested by the history of the Privy 
 Council. 
 
 A. V. DICEY. 
 
 ALL SOULS COLLEGE, 1887. 
 
 508063 
 
SCHEME OF ESSAY. 
 
 PART I. WILLIAM I TO RICHARD II. 
 
 PAGE 
 
 I. INTRODUCTION. Origin and early idea of the Council 1-7 
 II. ' CURIA REGIS,' OR ' AULA REGIA ' 7-11 
 
 1. No distinction originally between the 'Con- 
 
 tinual Council' and the 'Great Council.' 
 
 2. Constitution of Curia Regis. 
 
 3. Various powers combined in it. 
 
 III. RISE FROM CURIA REGIS or SEPARATE BODIES . . 11-14 
 
 1. The Law Courts. 
 
 2. The Council. 
 
 IV. CONNECTION OF CHANCERY AND THE COUNCIL . . 14-19 
 
 1 . Original Connection. 
 
 2. Gradual separation. 
 
 V. THE COUNCIL AND THE PARLIAMENT J 9~24 
 
 1. Changed position of Council and Parliament. 
 
 2. Causes of the Contest between them. 
 
 3. Measures of Parliament. 
 
 4. Institutions at Richard's accession. 
 
 PART II. RICHARD II TO HENRY VI. 
 
 I. CONSTITUTION OF THE c COUNCIL' 26-28 
 
 II. ITS POSITION 2 9-45 
 
 1 . Theoretical Dependence on the King. 
 
 2 . Practical independence of the King. 
 
 a. Hereditary office of Councillor. 
 
 b. Presence of Bishops. 
 
 3. Means by which the Council influenced the 
 
 Crown. 
 
 a. Presentation of advice. 
 
 b. Refusal to affix the ' seals.' 
 
 III. ERA OF THE COUNCIL'S HIGHEST POWER, 1444 . . 45-49 
 
 1. Government thrown into its hands. 
 
 2. The formation of a more Select Council. 
 
 3. Support of Parliament. 
 
 IV. THE COUNCIL AS AN ADMINISTRATIVE BODY . . 49-68 
 
 1. The account of business transacted on par- 
 
 ticular days. 
 
 2. Special provinces of the Council's activity. 
 
 a. Finance. c. The Church. 
 
 b. Aliens and Trade. d. The King's Peace. 
 
viii Scheme of Essay. 
 
 PAGE 
 
 V. THE COUNCIL AS A LAW COTJET 68-75 
 
 1. Cases in which its judicial powers were 
 
 employed. 
 
 2. Policy of the Commons. 
 
 3. Were the Council's judicial powers legal ? 
 
 PART III. HENKY VI TO WILLIAM IV. 
 
 I. INTRODUCTION 76-80 
 
 1. Gap in Council's history. 
 
 2. Changed state of Nation. 
 
 II. COUNCIL'S CONSTITUTION 80-84 
 
 i. Regulations of 1533. 
 i. The Secretaries. 
 
 3. ' Ordinary ' Privy Councillors. 
 
 III. , THE COUNCIL'S POSITION 85-94 
 
 1. Dependence on Crown by 
 
 a. Depression of Nobles. 
 J. Depression of Church. 
 
 2. Increase of powers as regards the people by 
 
 a. Subjection of special places to Council 
 
 Government. 
 J. Power of Proclamations. 
 
 c. The connexion of new Courts with 
 
 Council. 
 
 d. Extension of Council's judicial authority. 
 
 IV. STAR CHAMBER 94-115 
 
 1. Origin. Two theories about it. 
 
 2. Constitution. 
 
 3. Process. 
 
 4. Penalties. 
 
 5 . Its sphere of action. 
 
 6. Control of Law Courts. 
 
 7. Right of inflicting torture. 
 
 V. COUNCILLORS' EIGHT OF AEREST 116-117 
 
 VI. GENERAL REVIEW OF COUNCIL'S GOVERNMENT 117-123 
 VII. DECLINE OF COUNCIL'S REAL POWEE .... 123-130 
 
 VIII. REVOLUTION EFFECTED BY LONG PARLIAMENT 130-145 
 
 1 . Effect of destruction of Star Chamber. 
 
 2. Temple's Scheme. 
 
 3. Growth of the Cabinet. 
 
 4. End of Council's Government. 
 
 IX, CONCLUSION 145-147 
 
THE PRIVY COUNCIL. 
 
 PART I. 
 WILLIAM I TO RICHAKD n. 
 
 THE governments of the middle ages were both Origin and 
 more and less despotic than they are painted in of the 1 * 
 the theories of modern writers. Those who con- Counci1 - 
 ceive the prerogatives of the King to have existed 
 for the sake of the public good, find it impossible 
 to account for the maintenance of many royal 
 ghts (such as that of r nux5Z^nce, or of forcing 
 to labour in the Crown's service), which 
 
 d quite as much to injure as to benefit the 
 people governed. Yet though the advocate of 
 popular liberties finds that his theory will not 
 square with historical facts, the supporter of the 
 Divine right of Bangs is no less perplexed by 
 the history of the feudal ages. 
 
 The early Plantagenets exercised many powers 
 as beneficial to themselves as they were inju- 
 rious to their people; but it can scarcely be 
 maintained, that the nobles, who rose again and 
 again in arms against their liege lord, who 
 deposed Richard II, and conspired against the 
 second Edward, knew of any Divine right in 
 
The Privy Co^lnc^l. 
 
 kings, or recognised any duty of passive obedience 
 in subjects. Those, therefore, who desire to see 
 the institutions of the middle ages as they existed 
 in fact, must discard at once the liberal theories 
 of modern treatises on Constitutional Law, and 
 the servile loyalty of antiquarian writers living 
 under James I or Charles II. 
 
 Feudal The ruler of a feudal Monarchy was the first 
 
 5 s ' of a large body of nobles. In some countries, 
 such as France or Scotland, his power scarcely 
 exceeded that of individual barons, while it was 
 greatly outweighed by the collective might of the 
 nobility. In England, from the circumstances of 
 the Norman conquest, the Crown had much higher 
 authority than in other countries; yet even in 
 England, the early Norman kings may be con- 
 sidered as the greatest family among the nobility, 
 rather than as raised high above all their barons. 
 It was not the weakest of English monarchs who, 
 on telling a noble that he should ' either go or 
 hang,' was met by the blunt retort, 'I will 
 neither go nor hang.' The limits, however, im- 
 posed on the royal authority were not, in the 
 earliest times at least, formed by written laws. 
 No statutes curbed the prerogative of the Con- 
 Custom of queror, or of William Eufus. Their power was 
 advice. bounded by customs, but customs supported by 
 the swords of an aristocracy in arms. Among 
 these usages was one found in every feudal 
 Monarchy that of the interchange of advice 
 
The Privy Council. 3 
 
 between the King and his nobles. It is, however, 
 of importance not to be misled with regard to 
 this custom, by applying to it the standard of 
 modern notions. A King who is forced to receive 
 advice, means, at the present day, a King who is 
 a King in name alone, who 'reigns but does not 
 govern.' According to the ideas prevailing in 
 the eleventh century, it was rather the King's 
 privilege than his duty to receive counsel from 
 the great men of his kingdom. Their recom- 
 mendations were not, like the advice of modern 
 Parliaments or Ministers, commands, veiled under 
 a polite name ; they were in the strictest sense 
 counsel. The more powerful the monarch, the 
 more frequent the conventions of his barons. In 
 England these assemblies were constantly held, 
 whilst in France, where the royal power was 
 feeble, they became more and more rare. The 
 reason of this is clear. A feudal monarch had 
 to dread the isolation, not the union, of his liege 
 men. A feudatory who threw off his sovereign's 
 rule, withdrew from his counsels. The Dukes of 
 Burgundy, or Normandy, gradually dropped 
 attendance at the royal court. For once let the 
 barons attend their lord, and his authority was 
 secure, since attendance was an acknowledge- 
 ment of his sovereign rights, and enabled him to 
 turn against any one too powerful subject, the 
 combined forces of the lesser nobility. Hence A right 
 it was the right as much as the duty of the King 
 B 2, 
 
4 The Privy Council. 
 
 to demand counsel; and fully as many precautions 
 were taken to compel the lieges to give advice 
 as to force the King to hear it. Thus the writs 
 which summon peers to Parliament are demands 
 made by the King from his lieges, that they will, 
 on their ' homage and fealty,' or * homage and 
 allegiance,' meet him to consult on important 
 matters ; and attendance was urged on those 
 summoned, as an imperative duty. A writ 
 addressed to the Earl of Arundel, though belong- 
 ing to a later period of history, well shows both 
 the claim which the Crown made to counsel, and 
 the unwillingness of subjects to give it, in times 
 of danger. ' We have assembled,' runs the sum- 
 mons, ' at this time at our Palace at Westminster, 
 our Great Council, as ye know well, and wende 
 for certain ye would be there, afore this, as we 
 wrote unto you ye should, considering the great 
 
 causes for which we called our said council 
 
 And forasmuch as ye be a great Lord of this our 
 land, and that your presence is full necessary for 
 the weal of the said land, we will and charge you 
 of times, right straitly, that in all goodly haste, 
 after the sight of these our letters ye address you 
 unto the said council, all excusations set apart 
 notwithstanding all excusations granted by us 
 unto you, .... and we will you leave not this, 
 as you desire to do us singular pleasure, and the 
 welfare of this our land 1 .' 
 
 1 Proceedings of Privy Council, vol. vi. p. 294. 
 
The Privy Council. 5 
 
 It was only a weak or tyrannical King a John Neglected 
 or a Richard II who neglected to ask counsel ; y 
 
 for the ruler who acted without the advice of his kmgs - 
 great men distinctly outraged the moral feeling 
 of his day. The various measures taken to insure 
 that the King should affix his great seal through 
 the agency of his Chancellor 1 , were originally 
 meant, not to limit the royal power, but to com- 
 pel that power 2 to be exercised after the King 
 had been advised by his highest legal officer. 
 And one of the complaints against Richard II 
 was the omission to take the advice of the peers. 
 
 The importance attached in the middle ages Council 
 
 f 
 
 to communication between a King and his nobles, jes and 
 
 as between a baron and his vassals, bears directly officials - 
 on the history of the Council. That the King 
 might have advisers, he at times convened as 
 many of his great men 'Magnates,' or 'Not- 
 ables ' as could attend ; and at all times kept 
 about his person a body of officials, themselves 
 nobles, such as his Marshal, his Justiciary, and 
 his Chancellor. He in fact held at his palace, 
 on a large scale, just such a court as each baron 
 kept up, within smaller limits, in his castle. The Great 
 nobles, assembled on special occasions by special ^^ 
 writs, formed, in combination with the officers P erma ; nent 
 
 Council. 
 
 of the Court, the f Great Council,' or ' Common 
 Council ' of the realm. The chief advisers of the 
 
 1 Vide infra. 
 
 2 Conf. 28 Ed. I, 2 Rich. II, Ps. C., Kich. vol. i. p. 87. 
 
6 The Privy Council. 
 
 Crown, who were permanently about the King, 
 constituted the ' Permanent ' or ' Continual ' 
 Council, whence, in later times, rose the Privy 
 Council. The difference of names is important, 
 since it shows that in the earliest period of its 
 history the smaller Council was generally con- 
 trasted with the greater Councils, not as being 
 private while they were public, but as being 
 permanent or continual 1 , whereas they were of 
 their nature temporary. At first, indeed, there 
 was little difference of character between the 
 two Councils. Leading nobles were members of 
 the continual Council and at the meetings of the 
 great Council the officers of the court occupied a 
 prominent place 2 . The three centuries inter- 
 vening between the Norman Conquest and the 
 reign of Richard II (1066-1376), are the period 
 during which English institutions assumed a form 
 from which they have never essentially varied. 
 At the end of this period, there is found in 
 existence a Parliament of two Houses, distinct 
 Law Courts, and a Council, with peculiar powers, 
 and distinguishable both from the Law Courts 
 and from the Parliament. With the Council 
 alone the present Essay is directly concerned ; 
 but the early history of the Council is nothing 
 else than the account of the gradual process, by 
 which judicial and executive legislative and 
 
 1 Proceedings of P. C. Pref. vol. i. Rot. Parl. vol. i. p. 73. 
 
 2 Proceedings of Privy Council, vol. i. p. 4. 
 
The Privy Council. 7 
 
 political functions were separated from each 
 other, and assigned to different bodies. 
 
 The permanent Council under the early Norman Curia 
 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. 
 Besides these were present, at times, the Comp- 
 troller of the Household, the Chancellor of the 
 Exchequer, the Judges, the King's Serjeant, &c. 
 This body was the ' Aula Regia,' or c Curia Regis,' or Aula 
 a Court which has been described in various and 
 at first sight contradictory terms. Thus it has 
 been called the highest Law Court, the Ministry 
 of the King, a Legislative Assembly, &c. The 
 apparent inconsistency of these descriptions 
 vanishes on closer inspection, and throws great 
 light on mediaeval history. For the ' Curia Regis ' 
 possessed every attribute which has been ascribed 
 to it. It was the executive. It was also a Law 
 Court. It certainly took part in acts of legis- 
 lation. Still, at the time of its existence it was 
 no anomaly, since to the men of the eleventh 
 century, not the combination but the severance 
 of judicial and executive powers would have 
 appeared anomalous. The * Aula Regia ' was in 
 
 1 Proceedings of Privy Council, i. Pref. 
 
8 The Privy Council. 
 
 fact neither more nor less than the pourt of 
 the King ; and he who was at once the ruler and 
 judge of the whole nation, exercised the powers 
 which he possessed, either directly (and this he 
 did to a greater extent than modern students 
 are apt to suppose), or indirectly, through the 
 instrumentality of his great officers. Hence the 
 authority of the ' Curia Regis ' was as immense 
 and as undefined as that of the Monarch, 
 tinction ^ ^^ view be appreciated, many difficulties at 
 between 7 once Disappear. For example, distinctions have 
 Continual been drawn between the powers of the Council 
 and Great "when acting alone, and its powers when combined 
 Council, ^h the < Common Council,' or ' Great Council ; ' 
 between the Council as a legislative body, and 
 the Council as a Law Court. It can now be 
 perceived that such nice distinctions are valuable 
 for purposes of analysis, and have a real signifi- 
 cation when, as in the latter part of Edward Ill's 
 reign, or even earlier, the institutions of the 
 country assume a settled form: but that when 
 applied to earlier periods of history they lead to 
 nothing but confusion, since the interest of the 
 Council's history consists in the light which is 
 thrown by it on the growth of distinctions now 
 familiar to all men ; and the whole worth of this 
 history is lost if these distinctions, whose forma- 
 tion ought to be pointed out, are assumed always 
 to have been in existence. One instance suffices 
 to show the perplexities introduced into this 
 
The Privy Council. 9 
 
 subject, through describing in modern terms a 
 state of things to which they do not apply. It 
 has been a point vehemently discussed, whether 
 the King's Council (and confusion is frequently 
 much increased by the use of the comparatively 
 modern expression ' Privy Council '), was, or was 
 not, during the reigns of the early Norman Kings, 
 the supreme judicial and legislative body of the 
 realm ; whether, that is to say, the King with Constitu- 
 his special officers of the ' Curia Regis,' or the 
 King and the body of the nobles, constituted the 
 celebrated ' Courts de More,' held yearly at the 
 three great festivals of the church. 
 
 These assemblies are described in various Court 
 passages of ancient Chronicles, in the fol- 
 lowing and similar language. ' Thrice a year,' 
 says one annalist, 'did the King wear his 
 crown, when he was in England: at Christ- 
 mas and Easter he wore it at Winchester, in 
 Whitsuntide at Westminster, and there were 
 with him all the great men all over England 
 Archbishops and Bishops, Abbots and Earls, 
 Thanes and Knights V 
 
 ' Omnes,' says another chronicler, speaking of 
 the same assemblies, 'cujuscunque professionis 
 Magnates regium edictum arcessebat, ut extera- 
 rum gentium legati speciem multitudinis appa- 
 ratumque deliciarum mirarentur 2 .' Or, again, to 
 
 1 Chron. Sax. i. p. 190. 
 
 2 Win. of Malmesbury's Chron. 
 
io The Privy Council. 
 
 quote from a third writer, ' Cum gratia Dominican- 
 Nativitatis omnes regni primores ad Curiam 
 Regis pro more venissent V 
 
 Not clearly These, and other descriptions of the ' Courts 
 from it. de More,' bear out but badly the precise and 
 technical terms in which modern writers speak 
 of these conventions. But they show some 
 important facts. First, that the expression ' Cu- 
 ria Regis' was used vaguely, and might mean 
 either simply the ' King's Court/ or an assembly 
 of nobles, or a meeting of the chief officers of 
 state. Secondly, that the difference between 
 assemblies attended chiefly by the great officers 
 of state, and conventions of the nobility, was not 
 clearly marked. Whence it may be inferred, 
 that while at the ' Courts de More ' a large number 
 of nobles were usually convened, yet the royal 
 officials took a leading part in their delibera- 
 tions, and at other times decided judicial cases 
 without calling in any of the nobility. 
 Various The character of the ' Aula Regia ' gradually 
 combined changed. It is often said to have ' broken up ' into 
 three or four other bodies. A more appropriate 
 expression would be, that it developed into 
 other institutions. For the alterations it under- 
 went arose from the influence, not of any ex- 
 ternal power, but of certain internal forces, 
 which made it divide into different parts. From 
 
 1 Edinburgh Keview, xxxv. Lord's Report on Dignity of a 
 Peer. 
 
The Privy Council. n 
 
 the earliest times, particular officers of the ' Aula 
 Regia' had their special duties to perform. 
 Indeed the Constable, the Marshal, &c., did not 
 derive their offices from the 'Aula Regia,' but 
 their seat in the f Aula Regia ' from the fact of 
 possessing certain offices. Thus, the Marshal 
 or the Constable, assisted, it may be supposed, 
 by other members of the Court, attended to 
 military matters ; the Chamberlain to financial 
 concerns ; the Chancellor to all questions affect- 
 ing the royal grants. All business brought 
 before the whole Court would, it might naturally 
 be expected, be referred by the King to that 
 official under whose department it most fittingly 
 came. This anticipation is confirmed by facts. 
 At an early date, questions of finance were 
 referred to a particular branch of the Court, or, 
 to speak more accurately, to the Court convened 
 at a particular place, and for a special purpose. 
 Hence arose the court ' ad scaccarium ' or the Rise from 
 ' Exchequer.' This commission or committee of 
 the whole ' Aula Regia ' first dealt with affairs bodies - 
 of finance ; next, as an immediate consequence 
 of its position, decided suits having reference to 
 the Revenue ; and lastly, at a later period, dealt 
 with Civil Suits. By these steps, from the 
 ' Curia Regis ' sprang a Law Court, in the 
 modern sense of the term, that is, a body 
 which administered justice, according to fixed 
 rules and precedents. The separation of the 
 
12 The Privy Council. 
 
 Exchequer from the c Curia Regis ' took place 
 about the same time as the formation of the 
 ' Court of King's Bench ' and the ' Court of 
 Common Pleas.' The date at which each of 
 these bodies separated off from the ' Aula Regia ' 
 cannot be fixed with precision. The separation 
 was in all probability accomplished not later than 
 1164-1174, and it may be safely assumed that 
 from the reign of John, these Courts were 
 distinct from each other, as also from the 
 Council. 
 
 The rise of the Courts of Law made more 
 definite the position of the Council, but the 
 province of its authority was not marked out in 
 the manner which would seem the most natural 
 i. The Law to a modern reader. It appears indeed at first 
 sight a reasonable supposition, that the powers 
 given to the Law Courts were taken away from 
 the Council; that, in other words, the Council 
 (which is nothing more than the ' Curia Regis ' 
 when separated from the judicial tribunals,) and 
 the Law Courts, occupied distinct provinces. 
 Such an assumption is, nevertheless, confuted by 
 facts. Long after the erection of the Law 
 Courts the Council exercised considerable, though 
 peculiar, judicial authority. This anomaly is 
 easy to explain. The exercise of judicial power 
 is a Royal prerogative. In every law court the 
 King is supposed present. Originally he doubt- 
 less really presided, and administered justice, 
 
The Privy Council. 13 
 
 surrounded by his court (curia.) The pressure 
 of business soon made it impossible for him to 
 perform all his duties in his own person, and he 
 gradually delegated his authority to the regular 
 judges. This delegation, however, did not strip 
 the Crown of its prerogative. Though the King 
 ordinarily exercised his judicial powers through 
 judges, who acted according to set laws and 
 precedents, it was still his right to try suits, 
 either on his own authority or through the 
 great men of his Council. It could, indeed, 
 scarcely be supposed that when the King's 
 Bench exercised its jurisdiction, as being the 
 ' Curia Regis coram ipso rege,' the King could 
 not decide causes in that assembly, which was 
 emphatically the ' Curia Regis.' 
 
 This more direct exertion of the King's power 2. The 
 was naturally and of necessity called into action, ' 
 when for any reason the Law Courts were 
 unable to give justice. They might fail to grant 
 redress, either because, to use the expressive 
 words of various ordinances, 'there was too 
 great might on the one side, and too great 
 unmight on the other/ or because the grievance 
 referred to them was one which the technical 
 rules of law did not meet. In each case the 
 person aggrieved would naturally apply for aid 
 to the King and his Council. In both instances 
 the King would, among other counsellors, spe- 
 cially consult the Chancellor, his great legal 
 
14 The Privy Council. 
 
 officer. Hence the close connection between the 
 Chancellor and the Council a connection which, 
 from the effects it produced, requires particular 
 notice. At a period when the ' Aula Regia ' still 
 constituted one undivided body, one officer, the 
 Chancellor, had, as his peculiar duty, to affix 
 the great seal 1 to writs, grants, &c. Hence, when 
 the division of powers took place, he became the 
 head of a Court, before which were brought all 
 Connection questions affecting the royal grants. As presi- 
 cery^ith dent f this Court, ne ma y be considered to have 
 ^ e .. exercised a jurisdiction as independent of the 
 King's Council as did the Barons of the Ex- 
 chequer, or the Justices of the King's Bench. 
 Yet even in his capacity of Common Law Judge, 
 the Chancellor was connected somewhat more 
 closely with the Council than were the other 
 judges, both because the passing of grants was a 
 prerogative kept strictly in the Crown's own 
 hands, on the exercise of which the advice of the 
 whole Council was frequently taken, and because, 
 when the Council caused writs to be issued, it 
 was forced to act through the Chancellor. He, 
 however, occupied another position besides that 
 of Judge in a particular Court. As the greatest 
 legal officer of the realm, after the office 
 of Grand Justiciary was abolished; as an 
 Ecclesiastic consulted by the King on all ques- 
 tions of conscience ; as, from his possession of 
 
 1 Vide infra ii. 
 
The Privy Council. 15 
 
 the great seal, having knowledge of every grant 
 made by the Crown, he was the Council's most 
 influential Law Officer. 
 
 Thus, before he began to exercise an equitable 
 jurisdiction of his own, he must, as may be 
 certainly assumed, have been consulted about 
 every legal matter debated in Council. All 
 therefore who needed redress, which the Law 
 Courts could not afford, brought their complaints, 
 either before the Council, or before the Chan- 
 cellor, as the Council's highest official. Hence 
 the union between the Chancellor's and the 
 Council's jurisdiction, of which examples are to 
 be found in the following petitions, and others 
 of like character. 
 
 6 Ed. I. The Abbott and Convent of Bradney 
 
 pray the King for letters of protection. 
 Resp. Veniat ad Cancellarium et fiat ei quod 
 
 graciose fieri potest. 
 ' The Convents of London petition the King to 
 
 appoint a skilful custos over them.' 
 Resp. * Praeceptum est Cancellario, quod pro- 
 
 videat de idoneo custode.' 
 8 Ed. II. The heirs of Redham petition, 
 &c. Responsum est per Consilium. Veniant 
 querentes in Cancellario et habeant breve 
 ibidem executoribus Regine, et mittatur 
 petitio in brevi et mandetur eisdem ex- 
 ecutoribus, quod ipsis informatis, super 
 contentis in petitione, veniant in Cancel- 
 
1 6 The Privy Council. 
 
 lario et ibidem examinetur negotium, et si 
 inveniatur quod Regina tenetur in arreragiis 
 contends, referatur Regi, et Rex faciat jus- 
 titiam 1 . 
 
 The last answer quoted has peculiar value. 
 It exhibits the action of the Council as the 
 King's advisers, the reference of cases to the 
 Chancery, and their ultimate decision, at times, 
 by the King in person: but the clearest view 
 of the Council's relation to the Chancellor is 
 given by the ordinance 8 Ed. I. Its main ob- 
 ject is 'that no petitions may come before the 
 King and his Council, but by the hands of his 
 said Chancellor and other chief Ministers. So 
 that the King and his Council may, without the 
 load of other business, attend to the Great busi- 
 ness of his realm, and of other foreign Countries.' 
 Here again the Chancellor is seen acting as a 
 member of the Council ; and the language of the 
 Proclamation suggests the reason of the change, 
 which, before the reign of Richard II, had taken 
 place in the relative positions of the great law 
 officer, and the deliberative body to which it 
 belonged. As the Law Courts had branched off 
 from the ' Curia Regis,' so the Chancery began 
 Gradual to separate from the Council. The exact steps, 
 D ' by which the process of separation was carried 
 out, cannot be known. But it may readily be 
 supposed that the pressure of other business, and 
 
 1 Campbell's Lives of the Chancellors, vol. i. 187, 206. 
 
The Privy Council. 17 
 
 a distaste to the niceties of legal discussion, 
 made the Council glad to first refer matters 
 of law to the Chancellor, and next to leave them 
 entirely to his decision. Whatever the steps of 
 the change, a great alteration took place, and 
 before the death of Edward III, the Chancellor 
 decided matters of equity on his own authority, 
 and gave assistance to those hindered by 
 violence from obtaining aid through the regular 
 course of law. The date of his establishment as 
 a Judge of Equity is approximately marked by 
 a proclamation of Edward III 1 , which referred 
 matters of grace to the Chancellor's decision. 
 Though, from about this date, the Chancellor ex- 
 ercised an independent jurisdiction, the Council's 
 power suffered no diminution. Both the Coun- 
 cil and the Chancellor aided those whom 
 Common Law was unable to protect. Both the 
 Chancellor and the Council enforced obligations 
 binding in conscience though not in law. 
 Attacks made on the power of the Chancellor are 
 attacks on the authority of the Council, and 
 the Council in Chancery can hardly be dis- 
 tinguished from the Chancellor's own Court 2 . 
 
 Doubts, it is true, have been raised as to how 
 far the Council possessed originally any extra- 
 ordinary jurisdiction. The ground on which 
 they chiefly rest is, that no proof can be found 
 
 1 Story's Equity Jurisprudence, s. 44, and notes. 
 Hallam's Mid. Ages, iii. (i2th ed.) pp. 242-261. 
 
1 8 The Privy Council. 
 
 that such a jurisdiction was ever exercised 
 earlier than the reign of Henry III. It is, 
 however, hard to believe that the Council's 
 powers were less extensive in an age when the 
 Crown's prerogative was unrestrained, than at 
 a time when the regal authority had sensibly 
 declined ; that the counsellors of the third Henry 
 attempted to exert powers unknown to the 
 advisers of William I. If the view taken in the 
 present Essay of the Council's history be correct, 
 it sufficiently explains the apparent anomaly, of 
 the Council's authority appearing to increase, at 
 the very period when it might have been ex- 
 pected to have decreased. 
 
 Effected The establishment of the Law Courts, which 
 
 refgiTof na d been effected before the time of Henry III, 
 
 Henry III. mar k e d o ff the Council as a separate body. 
 
 Hence powers unnoticed when exercised by the 
 
 King himself in the ' Curia Regis,' attract 
 
 attention when put forth in acts of the Council. 
 
 It was not, however, the exertion of judicial 
 authority by the King's ministers which was 
 the novelty. What change there was, consisted 
 in the rise of the Law Courts. It is, indeed, 
 admitted that no complaints are heard of the 
 Council's power till 1331 (5 Ed. Ill, Cap. 9); 
 and did the complaints arise earlier, they would 
 not prove the Council's authority to have been 
 increased ; for an ancient institution is more 
 generally assailed because men's feelings have 
 
The Privy Council. 19 
 
 undergone a change, than because of any altera- 
 tion in its own character. A change of public 
 sentiment caused the attack on the Council. 
 The contemporaries of the Conqueror saw 
 nothing irregular in the exercise of an arbitrary 
 justice by the King and his courtiers. The 
 subjects of Edward III, accustomed as they were 
 to the regular administration of law, beheld in 
 the Council and the Law Courts the contrast 
 between irresponsible power and legal authority. 
 In attacking the former, they dreamed that they 
 were asserting old privileges, whilst they were 
 in reality struggling for new rights. 
 
 The alteration in men's feelings was closely The 
 connected with the growth of Parliamentary 
 
 power. The 'Continual Council' did not Parl ] a - 
 
 ment. 
 
 originally (as has been mentioned) differ essen- 
 tially in character from the Great Council. 
 The King could do nearly eveiy act in his 
 permanent Council of great men, which he 
 could perform when surrounded by a larger 
 number of his nobles ; except impose taxes on 
 these nobles themselves. But to the immediate 
 successors of the Conqueror, this exception was 
 of small consequence; since the domain lands, 
 the regular reliefs, the tallages from the Crown's 
 tenants, and unlimited exactions from the 
 Boroughs, afforded a sufficient revenue. In the 
 course of years the nature both of the ' Common 
 Councils ' of the realm, and of the ' Continual 
 
 2 
 
2O The Privy Council. 
 
 Council,' altered. The ' Great Council ' became, 
 when combined with the Commons, a national 
 convention, in no sense coinciding with the 
 Changed Council; whilst the latter body ceased to be 
 ofCouncil the King's Court, which included within itself 
 near ty a -^ ^ e men ^ importance who sur- 
 rounded the King ; and tended more and more 
 to become a separate assembly of officials, bound 
 by a particular oath, paid a regular salary, 
 and meeting under precise rules. The steps by 
 which these changes were brought about cannot 
 be separately marked ; but, whilst the rise of the 
 House of Commons marks the transition of the 
 'Common Council' into a Parliament, smaller 
 but as certain signs indicate the Council's 
 altered position. Thus in Edward II's reign 
 appears a Clerk of the Council ; in the Statute 
 29 Ed. I, the names of the King's Principal 
 Counsellors are mentioned, whilst, in various 
 acts, the Council is referred to, almost as a 
 separate Estate of the realm 1 . 
 
 For example, the Statute 3 Ed. 1, 1275, is said 
 to be, 'by his Council/ and by the assent of 
 the Archbishops, Bishops, Nobles, Peers, Lords, 
 Barons, and all the commonalty of the realm. 
 The statute 4 Ed. I is enacted in the ' presence 
 of certain Reverend Fathers, Bishops of Eng- 
 land, and others of the King's Council.' In 
 the eighth year of Edward II, appear four 
 
 1 Conf. Hallam's Middle Ages, iii. (i2th ed.) p. 143. 
 
The Privy Council. 21 
 
 petitions to the King and his Council, of which 
 one proceeds from the Lords alone, another from 
 the Commons, and two from the Lords and 
 Commons conjointly. The fact that the Council 
 was assuming the nature of a distinct body 
 is further proved by the appointment early 
 in the reign of Edward III of receivers of 
 petitions for the Council. 
 
 Under these circumstances, Parliament natu- Causes of 
 rally desired to control the powers of the Council, between 68 
 The wish, natural in itself, was greatly stimu- them> 
 lated by the influence of the Common Law 
 lawyers, a class of men whose influence was 
 great in Parliament, and who looked with ever 
 increasing jealousy on the ' Doctors of Civil 
 Law,' whose stronghold was the Chancery and 
 the Council. The Council's authority might be 
 depressed by two different ways of proceeding. 
 The appointment of its members might be taken 
 out of the hands of the Crown. If this were 
 done, the powers of the Council might be left 
 unimpaired, or even be increased; since they 
 would be curbed by the assembly who appointed 
 the Councillors. It was possible also to leave 
 the appointment of advisers to the King, but to 
 curtail the authority of the Council. Both 
 courses were tried. The irregular nomination 
 of the Council of Twenty-four Barons, under 
 Henry III, and of the ' Lords Ordainers ' under 
 Edward II, are attempts on the part of the 
 
22 The Privy Council. 
 
 ' Great Council ' to appropriate to itself the 
 right of appointing the * Permanent Council ' ; 
 Measures whilst the Acts 5 Ed. Ill, 35 Ed. Ill, 28 Ed. 
 * m 4^ Ed. Ill, mark the more moderate en- 
 
 deavours of Parliament to control a body in 
 whose appointment they claimed no share. 
 These bear witness to the influence of Common 
 Law lawyers ; since they are manifestly intended 
 to do away with all legal proceedings except 
 those in the Common Law Courts ; and first at 
 this period the two influences of ' the Courts ' 
 and ' the Parliament,' which have between them 
 ruled the whole history of the Council, unite 
 in the attempt to curb its authority, and, in 
 so doing, to restrain the prerogative of the 
 Crown. 
 
 Council That the members of the ' Curia Kegis ' made 
 of Lords. 86 P ar t f ^ ne ' Great Council ' is implied in the 
 character of that assembly. But the relations 
 subsisting between the Council and the House 
 of Lords, is not easy to discover. The manner 
 in which the Council's assent to statutes is 
 mentioned suggests that, during the reigns of 
 the two first Edwards, it voted as a separate 
 body. It is certain, however, that under Edward 
 III, whenever the Peers were assembled, the 
 King's Officers sat with them ; at first, per- 
 haps, with the right of voting, but later as mere 
 advisers. 
 
 In any sketch of the Council's rise, it is 
 
The Privy Council. 23 
 
 impossible not to dwell almost exclusively on 
 those circumstances which limited its power; 
 for these limitations are what mark it off as a 
 separate institution. Yet no conception of the 
 Council is more false than that which paints it 
 as a body perpetually encroaching on the rights 
 of the Parliament, or of the Law Courts ; and per- 
 petually checked in its encroachments. Altera- Daily 
 tions in the sphere of the Council's authority ^ Council 
 took place ; but their source will be found not in 
 the Council's encroachments, but in the rise of 
 new ideas, such as the conception of fixed laws ; 
 or in the growth of new institutions, such as the 
 Parliament or the Law Courts. In looking at 
 the extraordinary exertions of authority, which 
 alone were disputed, the historian ought not to 
 forget the daily exercise of its authority, which, 
 because it was usual, was therefore unnoticed. 
 This error is the more likely to be committed, 
 as no records of the Council's proceedings exist 
 of an earlier date than 1386. It may, indeed, 
 be confidently pronounced, that, before this 
 period, the Council exerted a great influence 
 over all the affairs of State; but the exact 
 nature of this influence, and the manner in 
 which it was employed, must remain a matter of 
 conjecture. 
 
 With the reign of Richard II the Council's 
 period of growth closes. Before he reached the 
 throne, the character of English institutions had 
 
24 The Privy Council. 
 
 Character become permanently fixed. The vagueness 
 tfonTfixed which marked the constitution of the 'Curia 
 
 of KichalT Re S is ' had P asse(i away. The Law Courts had 
 II. become distinct bodies. The Court of Chancery, 
 
 though till a later period closely connected with 
 the Council, was tending rapidly to become a 
 separate Court of Equity. The ' Great Councils ' 
 (though still frequently convoked) had surren- 
 dered their most important functions to Parlia- 
 ment, and the Council itself had become the 
 same body which, in constitution and powers, it 
 remained for at least a century. 
 
PART II. 
 
 RICHAKD II TO HENRY VI. 
 
 IT seems to be the result of more than of mere CouncU's 
 chance, that the earliest existing records of the recorded 
 Council's proceedings date from the reign ofj^ ss 
 Richard II. It has been shown that as early as 
 the latter years of Edward III the Council had 
 begun to occupy a clearly marked position, 
 distinct at once from that of the Law Courts and 
 from that of the Parliament. The conjecture is 
 therefore natural, that the Council's acts were 
 first accurately recorded when its existence as a 
 separate institution was for the first time dis- 
 tinctly recognized. 
 
 Whether this supposition be well founded or 
 not, it is certain that it is not till the reign of 
 Richard II that materials are found through 
 which the enquirer can gain a clear conception 
 of the Council's actual constitution, of the grounds 
 of its influence, and of the manner in which its 
 authority was exercised. 
 
 From 1386, for a period of about seventy years, 
 it is possible, owing to the existence of published 
 documents, to gain precise information on these 
 
26 The Privy Council. 
 
 and similar points. Printed records make it 
 apparent that what the Council was under 
 Richard II, such it was, in all essential 
 respects, under Henry VI, and, as may be with 
 confidence asserted (though after 1452 the 
 minutes fall short), such it remained till the 
 accession of Henry VII in 1485. Its influence, 
 indeed, greatly varied during the period covered 
 by the printed records, but not its character ; 
 and these minutes possess a peculiar value, from 
 the fact that they exhibit the same institution 
 under most diverse circumstances. The Council 
 is seen in action during the reign of four 
 Monarchs, differing not less in power than in 
 disposition. It is seen as influenced by the 
 tyranny and caprice of Richard, by the crafty 
 astuteness of Bolingbroke, by the vigour and 
 success of the victor of Agincourt, by the piety 
 and imbecility of his son. 
 
 Constitu- A list 1 of Henry IV 's Councillors in 1404, 
 Council* 6 snows them to have formed at that date an 
 assembly of nineteen persons, of whom three are 
 Bishops, nine are Peers, six Knights (mostly 
 persons like Sir T. Espingham, of considerable 
 reputation), and one, a certain John Norbury, 
 whose rank is not marked. This list presents a 
 fair specimen of the class of persons who in 
 general composed the Council. If it is in any 
 way peculiar, it is so by the larger number of 
 
 1 Proceedings of Privy Council, i. 237. 
 
The Privy Council. 27 
 
 commoners which it contains. The proportion 
 in which different ranks of the community were 
 called upon to specially advise the Crown, 
 constantly varies, and affords a criterion by 
 which to estimate the power of the King and of 
 the feudal aristocracy, respectively. Thus, while 
 under the vigorous administration of Henry IV, 
 many commoners are called to the Council- 
 board ; under the feeble rule of his grandson, 
 when factions of the nobility had usurped nearly 
 the whole government, the constantly recurring 
 lists of Councillors contain few untitled names. 
 Under Richard II 1 members of the Council were Council- 
 once at least appointed for a year only ; later ^ 
 and in this change is seen at once a sign and a 
 cause of their increasing influence their tenure 
 of office (though terminable at the King's 
 pleasure, and at their individual wish 2 ), was for 
 the King's life 3 . They were bound by a special 
 oath 4 , binding them to ' advise the King according 
 to the best of their cunning and discretion,' to 
 keep the King's counsel secret, and to help in 
 the execution of what should be resolved ; and 
 received salaries 5 of large amounts, if the value 
 
 1 Compare 3 Rot. Parl. p. 6. 
 
 2 Compare Regulations of 8 Henry IV. 3 Rot. Parl. p. 572. 
 
 3 See p. 29, post. 
 
 4 Steph. Comm. vol. ii. (8th ed.) p. 460. 
 
 5 Proceedings of Privy Council, iii. Preface xix. and p. 154, 
 date 1424. Bishop of Winchester received 200 ; Bishops, Earls, 
 and Treasurer, 132 6s. ^d. ; Barons and Bannerets, 100; 
 Squires, 40. 
 
28 The Privy Council. 
 
 of money in the fifteenth century be taken into 
 account. Their mode of transacting business may 
 be gathered from various ordinances, of which 
 one bearing date 1389 is a sufficient example : 
 
 Mode of ' The Council is to meet between eight and 
 n i ne o'clock. Business of the King's, and of the 
 realm's, is to have precedence over all other 
 matters. Matters relating to the Common Law 
 are to be determined before the Justices. What 
 relates to the office of the Chancellor is to be 
 decided before him. What to the office of the 
 Treasurer, before him in the Exchequer. The 
 King's pleasure is to be ascertained on all mat- 
 ters, which cannot be decided without his special 
 grace. No grants to the detriment of the revenue 
 are to pass without the advice of Council V 
 
 King not These regulations prove that the King was not 
 usually present at the Council's deliberations. 
 His absence is a matter of consequence, since it 
 increased the power of his advisers, and secured 
 their freedom of speech. It is also worth notice 
 that, as is manifested by other ordinances, the 
 Council considered itself so entirely a Law 
 Court as to ordain, that ' out of term-time 
 nothing be sped in the Council, but such thing 
 as for the good of the King and of his land 
 asketh necessary and hasty speed, and may 
 not goodly be abiden into the term-time 2 .' 
 
 1 Proceedings of Privy Council, vol. i. p. 18. 
 
 2 Ibid. vol. iii. p. 216. 
 
The Privy Council. 29 
 
 As regards authority, the Council occupied a Position of 
 position which appears at first sight paradoxical. 
 The same body was at once the controller and 
 the servant of the Crown ; the channel through 
 which the royal mandates passed, the instrument 
 of the prerogative; and at the same time the 
 check on the King's power, the curb placed by 
 the aristocracy on the arbitrary exercise of his 
 will. Hence increase in the Council's influence 
 means, at one period of history, a limitation of 
 the prerogative ; at another, as for instance in the 
 1 6th century, an addition to the royal authority. 
 These seeming inconsistencies are easily recon- 
 ciled by a consideration of the Council's nature. 
 The Council was nothing more than an assembly 
 of royal officials. It made no claim to indepen- 
 dent authority. Its very existence was derived 
 from the King's pleasure, and hence it was 
 dissolved \ ipso facto by his demise. The Th? - 
 Council at all times acted in the King's name, pendence 
 with a scrupulosity which reaches the height of 
 pedantic absurdity, when Henry VI (at the age 
 of five years) is made to assure the Chancellor, 
 that ' if we are negligent in learning 1 , or commit 
 any fault, we give our cousin (Earl of Warwick) 
 full power, authority, license, and direction to 
 chastise us, from time to time, according to his 
 discretion, without being impeded or molested by 
 us or any other person, in future, for so doing/ 
 1 Steph. Comm. ii. (8th ed.) p. 464. 
 
30 The Privy Council. 
 
 They treated the King at all times 1 with a cere- 
 monious etiquette, which sounds servile to 
 modern ears. The language employed in letters 
 to Richard II is almost adulatory, and courtesy 
 is carried to an extreme length, when bound to 
 inform Henry VI, that a boy of thirteen ought 
 not to intermeddle in affairs of State 2 , aged 
 ministers begin their lecture with a protest, ' that 
 it is far from their intention to advise any thing 
 prejudicial to the King's prerogative, or which 
 might be a restraint on his liberty or power ; and 
 temper their reproof with the nattering assurance 
 (of which the latter half was entirely false), that 
 while knowledge and experience are needed for 
 affairs of State, ' to this knowledge and feeling, 
 the King is like, by God's grace, to reach, as soon 
 as possible by nature, and as has been seen in 
 any person before his time.' 
 
 Under the rule of a vigorous prince, language 
 of this description was no unmeaning form. It 
 suited the Council's position. Its members 
 were powerful administrators, but yet mere 
 servants of the King's will. Their manner of 
 transacting business is most curious, and will 
 Practical require further investigation. Yet looked at as 
 pendence a mere administrative body, they did not control 
 the King. Nevertheless they did virtually, in the 
 ages under consideration, check the royal action, 
 
 1 Proceedings of Privy Council, iii. pp. 296-300. 
 
 2 Ibid. iv. p. 287. 
 
The Privy Council. 31 
 
 so that they became at times not the servants 
 but the ' Ministers/ or even the opponents of 
 their sovereign lord. The circumstances which 
 enabled the Councillors to do this, and the means 
 through which they brought their influence to 
 bear on the Crown, not only directly tell on the 
 Council's history, but are also curious, from 
 their connection with maxims as for example, 
 that of the ' responsibility of Ministers ' which 
 affect the politics of the present day. 
 
 The circumstance which made it possible for 
 the royal advisers to stand in any degree in 
 opposition to the Crown, is that they occupied a 
 position which in fact, though not in theory, 
 made them more than half independent of the 
 Monarch, as regarded their official station. The 
 King could, it is true, appoint or dismiss his 
 advisers, according to his own will. But in the office of 
 first place, a Council of some kind was a neces- ^tTmes 
 sity ; and secondly, his freedom of choice, though hereditary, 
 theoretically unfettered, was in practice subject 
 to considerable limitations. Certain officials, as 
 the Marshal, the Chamberlain, necessarily formed 
 part of every Council. Their offices were more- 
 over, in many cases, not in the gift of the Crown, 
 but hereditary in certain families. Further, the Presence of 
 presence of a large number of Bishops at the 
 Council-board was unavoidable. For (not to 
 speak of the two Archbishops, who claimed a 
 prescriptive right to be present at all Councils,) 
 
32 The Privy Council. 
 
 many offices, the chief of which was the Chan- 
 cellorship, could be filled by none but ecclesiastics. 
 Which Bishops should be summoned was, it is 
 true, dependent on the King's choice. But the 
 presence of men whose main claim to respect the 
 Crown could not touch, who stood as represen- 
 tatives of the greatest corporation of the day, 
 imparted to the Council a dignity and indepen- 
 dence which raised it far above a collection of 
 paid officials. Further, although the King's 
 right of appointing Councillors at his pleasure 
 was unquestioned, it was a prerogative not 
 unfrequently trenched upon by Parliament. The 
 deeds of the Lords Appellants under Richard II 
 may possibly be considered as too revolutionary 
 a proceeding to give any means of inferring what 
 could be done legally in ordinary times ; but the 
 Parliamentary regulations of 1406 * show that a 
 sagacious ruler, such as Henry IV, would at 
 times suffer the appointment of his advisers to 
 be wrested out of his hand ; whilst a document 
 of uncertain date, found amongst the minutes of 
 his predecessor's reign, exhibits the degree of 
 independence to which, if the Council never 
 attained, it at least occasionally aspired. This 
 ' advice of the Lords about the good governance 
 of the realm ' ordains, amongst other regulations, 
 * that the King is to allow the Council to exercise 
 
 1 Proceedings of Privy Council, i. 295-298, and Rot. Parl. vol. 
 iii. 585-589. Compare Stubbs, Constitutional Hist. iii. p. 266 
 (Library Ed.). 
 
The Privy Council. 33 
 
 their discretion in the government of the king- 
 dom; is to give them audience whenever they 
 wish to communicate with him ; is to suffer no 
 one to be reporters between him and the Council, 
 except the Chamberlain, the Steward, or the 
 Keeper of the Privy Seals ; is to appoint no 
 Sheriffs or Justices without the advice of the 
 Council 1 .' 
 
 Whilst the source of the Council's influence Means by 
 over the King is found to be in the independent Council 
 position of its members, it remains a curious 
 
 enquiry, What were the means through which Presenta- 
 this influence made itself felt ? The first and advice. 
 most effectual instrument for achieving this 
 object (that indeed into which all subordinate 
 means may be resolved), was the delivery of 
 admonitions and recommendations. The rebukes 
 might be spurned, and the advice neglected ; but 
 still the effect produced by counsel, even when 
 unbacked by power, is greater than some modern 
 modes of thought seem to imply. At any rate, 
 the eagerness with which Richard II avoided 
 interviews with his advisers, proves that a 
 tyrannical prince felt their remonstrances a 
 restraint. On this point there is no need for 
 vague conjecture ; since an account of a discussion 
 between Richard 2 and his Council gives a 
 picture of the way in which a Monarch's will 
 
 1 Proceedings of Privy Council, i. 84. 
 Ibid. i. 12 b . 
 
 D 
 
34 The Privy Council. 
 
 might be checked, if not thwarted, by the oppo- 
 sition of his Ministers. The King was anxious to 
 conclude a bargain with the Earl Marshal, for the 
 defence of Berwick. The Council thought the 
 Earl's demands too large, and refused their assent 
 to the agreement. They held at least two con- 
 ferences with their master, and put forward 
 formally the reasons of their dissent ; the most 
 remarkable of which is their fear of being charged 
 in Parliament with having wantonly burdened 
 the revenue. The debate was stormy. The King 
 broke up the first conference ' with a countenance 
 of anger,' and as he withdrew to Kennington, 
 exclaimed, ' Be it at your peril, if any evil come 
 of the delay ! ' At the second colloquy, a compro- 
 mise was effected, and the Earl's indentures 
 were signed. 
 
 Kefusal In this dispute the Council apparently refused 
 ' seals.' to affix the ' Great Seal ' 1 to the indentures. 
 This refusal connects with their second means 
 for exerting influence, that is, the claim to take 
 cognizance of every grant and writ issued by the 
 King. The great effects which this claim has pro- 
 duced, since from it flows the modern doctrine that 
 all writings proceeding from the King need the 
 counter-signature of a Minister, make it allow- 
 able to trace its history with some minuteness. 
 From the earliest times of the Norman 
 
 1 Vide on subject of ' The Seals,' Proceedings of Privy Council, 
 vi. Preface, pp. cxli to ccxix. 
 
The Privy Council. 35 
 
 Monarchy, the King's will had been signified by 
 * writs' or letters, signed with the royal seal. 
 No writing, it was early held, expressed the 
 King's command unless accompanied by the 
 impress of the seal. The necessity of some such 
 guarantee for a document's genuineness was 
 originally no legal fiction. For the frequent use Seals, why 
 of ' tokens ' is sufficient to show how great was requ " 
 the difficulty of warranting the authenticity of 
 communications between man and man. Indeed 
 this difficulty as naturally arises in a barbarous 
 age as it is foreign to the ideas of those who are 
 accustomed to the security of modern civilization. 
 The King's ' Great Seal ' was committed to the 
 keeping of the Chancellor, and hence arose the 
 necessity that this officer should have knowledge 
 of all royal grants. This arrangement, which 
 made the Chancellor a party to every grant, was 
 primarily made for the King's convenience. He 
 was extremely likely to grant away, without 
 knowing it, his own rights ; and it must have 
 been an advantage to have a servant at his side 
 to warn him of any danger to the prerogative. 
 This convenience had, however, its price. The 
 Chancellor who advised had the opportunity to 
 remonstrate and cause delay, especially when the 
 idea grew up, which was fostered by the Council 
 no less than by the Parliament, that not only did 
 every * bill ' (if this term may be used, in a wide 
 sense, to describe every document signed by the 
 D 2, 
 
36 The Privy Council. 
 
 King), absolutely require the impress of the 
 Great Seal, but that the seal could not be legally 
 affixed without the Chancellor's intervention. 
 The plea in favour of this doctrine was the pro- 
 tection it gave to the Crown against the attacks 
 Kings' of fraud. Still most Kings felt it as a burthen, 
 to evade UrS an( ^ struggled against it in two ways. Either 
 this check, they maintained, that signature by smaller royal 
 seals, which, be it remarked, were retained in the 
 monarch's own possession, sufficed to give any 
 writing validity, or else they retained the ' Great 
 Seal' in their own keeping. Thus the Parlia- 
 ment remonstrated with Edward I, for issuing 
 writs relating to the Common Law, under the 
 Privy Seal, as also with Richard II in 1377. 
 Edward II, and Richard his imitator in all his 
 faults, each frequently retained the * Great Seal ' 
 in their own hands. Gradually however the cause 
 Privy Seal, of Law prevailed ; and though the Privy Seal be- 
 came in some respects of acknowledged authority, 
 the prerogative gained but little, since the Privy 
 Seal passed into the hands of a regular officer. 
 
 Moreover the King's will was controlled in 
 another respect, through theories about the 
 * Seals.' The Chancellor made, originally, no 
 claim to do more than tender his advice about 
 grants, and did not presume to refuse to affix 
 the ' Great Seal/ But the circumstances of the 
 times suggested to him a plea for a further 
 extension of his authority. He owned, it may 
 
The Privy Council. 37 
 
 be supposed, that he was bound to affix the 
 * Great Seal ' at the King's command. But how 
 was he to be assured that the King really did 
 command 1 The assurance might come directly Verbal 
 
 , ,.,. ,. commands 
 
 from the King s mouth, and in early times this heidinsuf- 
 was, without doubt, considered enough. But, in c 
 many cases, direct verbal commands could not 
 be obtained; and the Chancellor naturally 
 demanded some more indubitable security that 
 he was obeying the King's will than could be 
 given by a mere message. The guarantee sought 
 for was a letter signed with the King's Privy 
 Seal. From asking for a warrant under the 
 Privy Seal in cases where the King could not 
 communicate his wishes by word of mouth, it 
 was an easy step to pass to requiring it in every 
 case whatever, and hence arose the doctrine, 
 contested by the crown, and maintained by the 
 lawyers, that no bill ought to be endorsed by the 
 ' Great Seal ' on a verbal warrant. In favour of 
 this rule, the Chancellor could urge a plea, which 
 had more weight than the legal fiction that it 
 was impossible otherwise to know with certainty 
 what really was the royal will. He might, with 
 an appearance of justice, claim, for the sake of 
 protection, some warrant which could be shown 
 to others that in affixing the ' Great Seal ' he had 
 obeyed a royal mandate. Yet while this plea, 
 and probably also the convenience to the Crown 
 of throwing on its servants the responsibility for 
 
38 The Privy Council. 
 
 its acts, reconciled the King to the restriction 
 placed on the free exercise of his will, the 
 restraint was one against which all monarchs 
 struggled, and even in the latter part of the 
 fifteenth century, Edward VI expressed indig- 
 nant surprise that his Chancellor did not deem 
 ' Our own speech to you ' sufficient warrant. 
 Attempts Every accession to the influence of the Great 
 111 grants kaw Officer was an addition to the Council's 
 Council's P ower an( * acts known to the Chancellor and 
 notice. to the keeper of the Privy Seal must virtually 
 have come to the cognizance of the other 
 Ministers. But this indirect knowledge far 
 from satisfied the pretensions of the royal ad- 
 visers. Various attempts were made to bring 
 all grants under the whole Council's observa- 
 tion. Thus in 1389, the year, be it observed, 
 in which arose the dispute about the indentures 
 it was enacted that every ' bill ' (the word in- 
 cludes all writs and grants issued, as well as 
 (/ petitions acceded to, by the king), should be en- 
 dorsed by first the ' Signet,' secondly the ' Privy 
 Seal,' thirdly the * Great Seal ; ' and, as though 
 this arrangement were not security enough that 
 the Council should be consulted, the ordinance of 
 the same year, before quoted, provides that no 
 grant to the detriment of the revenue should pass 
 without the advice of the Council. The accession 
 of the Lancastrian dynasty made no change in the 
 policy pursued by the Councillors. This policy 
 
The Privy Council. 39 
 
 was now encouraged by Parliament, which passed, 
 in 1406, a series of regulations more stringent 
 than any before enforced 1 . Among other rules, it 
 was enacted that all letters endorsed by the Cham- 
 berlain or Treasurer, and letters under the signet 
 addressed by the Treasurer and the Keeper of the 
 Privy Seal to the Chancellor should be endorsed 
 by or written with the advice of the Council. The 
 last and most important document which need 
 be quoted on this subject is the ordinance of 
 I444 2 . Under the modest appearance of a 
 series of formal rules about the presentation of 
 petitions, it practically ensures that every grant 
 of the Crown should, from the moment of its 
 presentation as a petition to the time when it is 
 formally issued as a royal writ, be under the 
 notice of the King's Ministers. 
 
 The Lord of the Council and the petitioner who Presenta- 
 present a petition (bill) are each to subscribe petitions. 
 it with their names. Petitions so signed are to 
 be inspected by officials appointed for the pur- 
 pose. These officers are commanded, according 
 to the nature of the petition, to transmit it to 
 the Common Law, to the King, &c. The petition, 
 when signed by the King, is to be countersigned 
 (to use a modern term) by Chamberlain or 
 
 1 Rot. Parl. iii. 583-589. Proceedings of Privy Council, i. 
 Preface Ixii and pp. 296-298. 
 
 2 Proceedings of Privy Council, vi. Preface clxxxvii and pp. 
 316-320. The date of this ordinance is a little uncertain. 
 
40 The Privy Coimcil. 
 
 Secretary, and when the bill is granted it is 
 to be sent to the Secretary, who is to ' conceive 
 letters upon it,' which are to be directed to the 
 keeper of the Privy Seal, and from him sent, 
 under the Privy Seal, to the Chancellor, to have 
 the Great Seal affixed. * If, however, the keeper 
 of the Privy Seal thinks that the bills received 
 by him under the signet contain matters of 
 great weight, he is to refer them to the Coun- 
 cil, who may refer them to the King again.' 
 Object of These lengthy regulations in their main features 
 resemble similar rules established in Henry 
 VIII's reign, which, as regards royal patents, 
 grants, &c., prevail at the present day. It 
 is natural to enquire what exactly was the 
 object with which they were formed. It sounds 
 a satisfactory reply to say that they were 
 meant to ensure the responsibility of Min- 
 isters. They assuredly had a tendency to 
 produce this effect; and the fears of Richard's 
 Council in 1389, lest Parliament should censure 
 their acts, proves that the idea of ministerial 
 responsibility was not entirely unknown to the 
 statesmen of the fourteenth century. Nevertheless 
 such an answer misleads, since it explains the 
 conceptions of the fifteenth century by those of 
 the eighteenth or nineteenth. These regulations 
 were in no sense meant to shelter the Crown from 
 danger and deprive it of powers, by substituting 
 the rule of Ministers for that of the King. That 
 
The Privy Council. 41 
 
 they were re-enacted by Henry VIII sufficiently 
 shows that they did not necessarily curtail the 
 prerogative. The ends which they were meant 
 to attain were something different from minis- 
 terial responsibility, as that term is at present 
 understood. These objects were mainly two- ( r ) to 
 fold : first, to secure that the King should be in g?^ the 
 no manner cheated into consenting to grants 
 which it was not his intention to make, or into 
 conceding favours injurious to his revenue or 
 his rights. To give him this protection, as 
 many officials as possible were made responsible 
 for every petition conceded ; and thus a species 
 of ministerial responsibility was established, 
 but it was responsibility to the Crown, not to 
 the Parliament : secondly, to secure that before ( 2 ) to 
 
 secure 
 
 any prayer was answered, the Council's advice Council 
 should be taken. The anxiety to secure this is consulted, 
 plainly seen in the reference back to the 
 Council of all matters which appeared of weight. 
 To this wish for knowledge of the royal acts, 
 particular attention should be directed, since in it 
 is seen the key to the whole history of mediaeval 
 Councils ; for they are the embodiment of the 
 feudal conception of government, in which the 
 true limit to the royal power was the freely 
 given advice of free Councillors. Yet while 
 these were the only direct effects the Council 
 proposed to attain, it was even then clear that 
 such regulations had an immediate tendency to 
 
42 The Privy Council. 
 
 control the prerogative; and hence the Coun- 
 cillors' humble though scarcely sincere protesta- 
 tions, that they proposed these rules (the words 
 are their own, as far as a damaged MS. permits 
 them to be given), ' humbly protesting they come 
 before his said Grace only by way of advertise- 
 ment, and none otherwise. For they in no wise 
 think, nor have will to do, or .... anything, but 
 that the King's good Grace do at all times as it 
 shall please him, and use his power and will as 
 it pertaineth to his royal estate.' These sugges- 
 tions were brought before the King, agreed to. 
 Highest and after a few years, disregarded. Neverthe- 
 
 point of \ 
 
 Council's less they are important, since they mark the 
 authority. j^^ point to ^^^ the authority of the 
 
 Council, as contrasted with that of the King, 
 ever reached. 
 
 Every incident of the preceding sixty years had 
 tended to increase the Council's might. The 
 weakness of Richard II, his successor's doubtful 
 claim to the throne, the long absences of Henry V, 
 and still more the minority of his son, had all 
 tended in the same direction. They had each, in 
 different ways, made the Council the government 
 of the state. Moreover the growth of Parliamen- 
 Support of tary power had led to the same result. During 
 *" the minority at least, the Council was appointed 
 by Parliament, which was therefore glad to 
 strengthen a body which it did not as yet aspire to 
 overshadow. Further, a change which had taken 
 
The Privy Council. 43 
 
 place in the Council's own constitution during 
 the reign of Henry V tended at first to increase 
 its authority. It assumed for the first time the 
 title of the 'Privy Council,' instead of that of 
 'the Council.' The alteration of name must 
 indicate a change in character; but its exact 
 nature is nowhere clearly described. Many 
 writers, indeed, speak of the difference between 
 the ' Ordinary Council ' and the ' Privy Council,' 
 though they hardly point out wherein the dis- 
 tinction consisted. The difficulty of ascertaining 
 its true nature is increased by the fact, that while 
 the term Privy Council is not employed till the 
 time of Henry VI, the expression ' Ordinary 
 Council 1 ,' if found at all in the Council Records, 
 appears but rarely, and would seem to have 
 come into use through its employment by Hale. 
 Reasonable doubts indeed may be entertained 
 whether, prior to Henry VI, the * Privy' and 
 ' Ordinary ' Council were in any sense distinct 
 bodies. There existed, as has been seen, from 
 a period certainly as early and probably earlier 
 than Richard II's reign, a body consisting of 
 regularly paid and sworn Councillors. These 
 advisers were frequently assisted, as is testified 
 by the ordinances, by the justices and judges. 
 Originally those Councillors who regularly 
 attended were perhaps scarcely distinguished 
 
 1 Vide Palgrave, Essay on the King's Council, 20. Conf. 
 Hale, Jurisdiction of Lords House of Parliament, pp. 4, 5. 
 
44 The Privy Council. 
 
 from those advisers whom, like the judges, 
 Govern- the King at times summoned. The minority 
 
 ment 
 
 thrown of Henry VI, by flinging the whole govern- 
 Snds* 8 m ent into the hands of the sworn Councillors, 
 must have rendered the distinction between the 
 habitual members of the Council and those, 
 whether nobles, lawyers, or others, who were 
 only occasionally summoned, much more marked. 
 Formation Hence, though the lines of demarcation between 
 se i ec t the two cannot be accurately drawn, the rise of 
 Council. a Privy Council from a general Council, which 
 may be fairly called the Ordinary Council (though 
 it admits of question whether the appellation 
 itself is justified by any ancient records), is a 
 well ascertained fact. That some distinction 
 really arose about this period is an assumption 
 not resting solely on the fact that the expression 
 Privy Council is now first found, but confirmed 
 by several incidents mentioned in the minutes. 
 Of this kind are the special rules for securing 
 the privacy of the Council's meetings, and the 
 secrefcy of its resolutions ; as for instance, in the 
 Ordinance of 1426, which after alleging that 
 * great inconveniences ' had ensued from matters 
 which had been 'spoken and treated in the 
 Council having been published and discovered/ 
 declares that ' from this time forward, no person 
 of what condition or degree that he be, be 
 suffered to abide in the Council, whiles matters 
 of the said Council be treated therein, save only 
 
The Privy Council. 45 
 
 those that be sworn unto the said Council, but if 
 they be specially called thereto by authority of 
 the said Council 1 .' Such too is the account of 
 a dispute between the Duke of Gloucester and 
 the Cardinal Beaufort, in which there appears 
 a marked contrast between a general and a more 
 private Council 2 . It is, therefore, sufficiently 
 apparent that under Henry VI a select Council 
 was gradually arising from the midst of the 
 general Council, that a change was taking place 
 precisely analogous to the process by which, in 
 a later age, the Privy Council itself gave birth 
 to the Cabinet. Hence, from the concurrence of 
 various causes, it resulted that the Council's 
 authority had reached an extremely high pitch. 
 The King was weak and incapable. The Council Era of 
 had long wielded the powers of the state, it had highest 
 drawn close the bonds connecting its members P ower > 
 together, and it thus stood, about the year 1444, 
 prepared under cover of the regulations before 
 referred to 3 gradually to seize, one by one, the 
 prerogatives of the King. It is true that under 
 the Tudors its powers, as against the people, 
 were much greater than under the last of the 
 Lancastrian dynasty. But this power had been 
 purchased at the price of its independence, and 
 it was as feeble against the Crown as it was 
 mighty against every one else ; whilst before 
 
 1 Proceedings of Privy Council, iii. 215. a Ibid. iv. 36. 
 3 Vide p. 39, ante. 
 
46 The Privy Council. 
 
 the Wars of the Roses commenced it towered 
 above every other constitutional authority. 
 At this point, therefore, the history of its en- 
 croachments on the Crown may pause, whilst 
 the reader turns to review the two other sides 
 of the Council's history during the Middle Ages : 
 first, its action as an administrative body ; and, 
 secondly, its relation to the Law Courts. 
 
 It is inevitable that in writing the history of 
 any institution, attention should be primarily 
 directed to the different changes which it under- 
 goes ; to its rise, its mutations of character, or 
 its decay. The point of view which the mind is 
 thus forced to occupy is apt to involve the writer 
 in error. He comes more and more to look 
 solely at the critical points in the history of his 
 subject, to fix his gaze on that which is excep- 
 tional, and overlook all that is ordinary ; to 
 know how a given institution passed from one 
 stage of its existence to another, and not to 
 perceive what the institution truly was at any 
 stage whatever. No class of writers have been 
 more infected with this error than those who 
 have traced the history of the Privy Council ; 
 for it is a history that necessitates the discussion 
 of antiquarian puzzles. Thus it has come to 
 pass, that whilst many have discussed what was 
 the Council's origin, what the precise limits of 
 its jurisdiction, whether its powers were legal 
 or illegal, what was the distinction between 
 
The Privy Council. 47 
 
 the Privy and the Ordinary Council, few have 
 shown what was the daily existence of the 
 Council during the Middle Ages. Yet a happy 
 fortune places it within the historian's power, to 
 bring before the imagination a picture of the 
 Council's every-day life, which, if in many points 
 indistinct and deficient, is as far as it goes 
 correct. The means, and the only means, by Picture 
 which this picture can be obtained, is by study 
 
 of the Privy Council minutes. In them the Council's 
 
 minutes 
 
 reader will find no historical theories, and, as 
 the preceding sketch has shown, but little 
 record of even important changes. As a com- 
 pensation he has presented to his view, what 
 may, with hardly an exaggeration, be called a 
 daguerreotype of a feudal government. The 
 picture has, it is true, the defects as well as the 
 advantages of a photograph. It is colourless. 
 Much is omitted which every one would fain see, 
 and much recorded which, at first sight, could 
 well be spared. Yet it has the great merit of 
 truth, and it is soon felt not to lack interest. 
 Did it come strictly within the scope of this 
 essay, it might easily be shown that amidst dry 
 accounts and wearisome lists of payments, these 
 minutes contain traits of character, which can 
 scarcely be surpassed by the descriptions of 
 fiction. In them is recorded the manner in 
 which the Percys were well nigh forced, by 
 royal dishonesty, into the revolt which led to 
 
48 The Privy Council. 
 
 their ruin. In them is given incontrovertible 
 proof that the youth of the Fifth Henry was as 
 warlike as his later years, and that the greatest 
 English general of this age was no less active as 
 an administrator than as a captain. In the 
 same indubitable records is described the long 
 struggle between Gloucester and Beaufort, in 
 which the violence of the noble was again and 
 again foiled by the craft of the priest. Beaufort 
 himself stands depicted in the strangest colours 
 as at once the greatest ecclesiastic, and the most 
 grasping usurer of his day ; who struggled with 
 equal tenacity for his see and for his money ; 
 and exhibits all the contradictions of his nature 
 in the petition containing in incongruous juxta- 
 position, prayers that he might have good se- 
 curity for his loans 1 , and might be allowed 
 before he died to go a pilgrimage. Above all 
 other characters of the period, towers forth by 
 its nobility and grandeur that of Bedford. One 
 sketch of whom afforded by these records, 
 presents so lively a picture of himself and his 
 times, that it may excuse a digression, which is 
 after all a digression in name rather than in 
 reality, since it gives an excellent view of the 
 Council's manner of acting in moments of 
 difficulty. A misunderstanding had arisen as 
 to the extent of Bedford's power, and the 
 Ministers came to remonstrate with him on 
 
 1 Proceedings of Privy Council, iv. 235. 
 
The Privy Council. 49 
 
 some undue claim to authority. Thereupon (the 
 scene can scarcely be given in any other words 
 than those of the minutes), ' it pleased his said 
 lordship to say, that he had well heard and 
 understood the matters above said, and he 
 thanked them with all his heart that it lusted 
 them to send to him for that cause, letting them 
 wit that it was unto him one the greatest 
 gladness to see the King, standing in his tender- 
 ness of age, to have so sad, so substantial, and so 
 true a Council, and after it liked him to say, 
 that he knoweth the King for his sovereign lord, 
 and himself for his liegeman, and subject to him 
 and to his laws .... And to put the said lords 
 in more assurance, and comfort, as to the keeping 
 and observance of the things above said, it liked 
 my Lord of Bedford, of his own free will, to open 
 the books of Evangile, lying in the Starred 
 Chamber, and to swear by them, that he would 
 truly observe, and keep, the things aforesaid. . . . 
 And these words and many other gentle words 
 he said so benignly and goodly, that tears sprung 
 as well out of his eyes, as out of the eyes of 
 all my said lords that were there present V 
 
 While, however, the minutes of the Council T* 16 
 
 Council as 
 
 contain many scenes of interest, it would be an an admini- 
 absurd illusion to conceive that the plots of 
 nobles and priests, or that great political acts of 
 any kind, made up the daily occupation of 
 
 1 See Proceedings of Privy Council, iii. 231 to 243. 
 E 
 
50 The Privy Council. 
 
 the rulers of the Middle Ages. The time of the 
 Council was occupied, as that of every govern- 
 ment must be, with an infinite number of trivial 
 cases. It had at one moment to settle questions 
 of policy ; at another to provide funds, by which 
 the administration could be carried on ; at 
 another to review minute accounts, to com- 
 municate with aliens or merchants, or to inter- 
 fere for the preservation of the King's peace. It 
 would be impossible, whatever were the length 
 of this essay, to comprise the administrative 
 functions of the Council under any definite 
 number of heads. In modern days, legislative 
 and judicial, administrative and political func- 
 tions have been separated from each other to an 
 extent which would have seemed unnatural to 
 statesmen of the fifteenth century. Yet even after 
 this separation has taken place, there exist 
 bodies whose daily transactions could scarcely be 
 brought under two or three distinct heads. Thus 
 it would probably be impossible to form an 
 exhaustive analysis of the occupations of a 
 modern Cabinet. If so, much greater is the 
 difficulty of analysing into clear divisions the 
 transactions of that mediaeval assembly which, 
 in addition to the duties of a ministry, had to 
 deal with matters which have since been rele- 
 gated to the care either of law officers or of 
 superintendents of police. Under these circum- 
 stances, the nearest approach to a sketch of the 
 
The Privy Council. 51 
 
 Council's administrative action can be made by Accounts 
 examining, first, what was the business on which transacted 
 it was actually engaged on particular days, n 
 selected pretty much by chance ; and, secondly, 
 by presenting an account on some special pro- 
 vinces, in which its power was called forth. 
 
 On the 2oth August, 1389, the Council is en- 
 gaged in negotiations with the Duke of Brittany 
 a bout the restitution of the Earldom of Richmond. 
 Their next business is to settle that Lord Stanley 
 be Lord Lieutenant of Ireland, then to send 
 an embassy to France, and to review the accounts 
 of the Treasurer pf Calais. Their deliberations, 
 held in the King's presence, are concluded by 
 arrangements with regard to certain pensions T . 
 
 Look at the Council Board twelve years later. 
 The meeting recorded was held some time in 
 March or April, 1401. The business is even 
 more than usually multifarious. The Coun- 
 cil is occupied with the collection of the 
 customs, a dispute between the Abbot and the 
 towns' folks of Cirencester, and the despatch of 
 J. Curzon, Esq., to Carlisle, that he may report 
 the details of the last treaty with Scotland. 
 They next arrange a list of Lords commissioned 
 to enquire into the truth of accusations brought 
 against certain malefactors in the county of 
 Gloucester. They then accord an annual pension 
 to the sons of Lords Salisbury and Oxford, till 
 
 1 Proceedings of Privy Council, i. 128. 
 E a 
 
52 The Privy Council. 
 
 they attain their majority ; give their attention 
 to the funds necessary for an embassy, which is 
 to conclude a marriage between the King's 
 daughter and the King of the Romans, and 
 resolve to take the royal pleasure on certain 
 points connected with the King's retinue. 
 
 One other example is sufficient. The assembly 
 is held during the reign of Henry V, May 27th, 
 1415. The first business entered on has reference 
 to an alliance with the Duke of Burgundy. The 
 Council then turns to money matters, and ar- 
 ranges to pawn the King's jewels, a mode of 
 raising money constantly recurred to by the 
 Crown in periods of distress. Various measures 
 are then devised for defending the kingdom. 
 The Chancellor is ordered to issue commissions 
 of array. Proclamations are to be made, ordering 
 a general election of beacons, and directions are 
 given about victualling the army and the fleet. 
 From civil the ministers direct their mind to 
 ecclesiastical matters, and enjoin the Bishops to 
 take measures to resist the malice of the Lollards. 
 Then follow matters of police. The Lord Mayor 
 is to be spoken to about the destruction of the 
 walls of the Friars Augustines, and to be cau- 
 tioned not to proceed with any demolitions in 
 the City without the advice of some persons 
 probably commissioners appointed by the Coun- 
 cil. At the same time the Mayor is to be com- 
 municated with about the imprisonment of 
 
The Privy Council. 53 
 
 certain workmen, who had been impressed in 
 London for the royal service 1 . 
 
 The minutes quoted exhibit the immense mass 
 of business with which the Council was compelled 
 to deal. The last quotation, with its references to 
 means of raising money, to ecclesiastical matters, 
 to the King's prerogative of impressment, and 
 to the Council's Interference with the privileges 
 of the City, is deserving of especial notice. 
 
 It is impossible to give anything like a sketch, Four 
 even in outline, of the Council's administrative provinces 
 
 labours. Four topics, however, from their im- 
 portance, call for particular remark. 
 
 I. The Council's management of the finances. *- 
 Whoever looks down the long indices of the 
 Council's Records, will observe that nearly every 
 alternate minute has reference to some matter 
 of accounts. Further inspection shows that the 
 whole royal expenditure, whether the King's 
 private expenses, or what would now be termed 
 public finance, passed under the Council's review. 
 Before the Council are laid budgets of the i. Finance. 
 national expenditure ; they are consulted on the 
 best way of raising and of spending the revenue ; 
 and, while under monarchs such as Henry V, 
 their accounts are strictly overlooked by the 
 King (for even when occupied with the French 
 war, Henry most carefully examined the state- 
 ments submitted to him), during the minority of 
 
 1 Proceedings of Privy Council, ii. 167. 
 
54 The Privy Council. 
 
 Henry VI, and indeed during his whole reign, 
 the Council regulated, under the guidance of 
 ministers, such as Lord Cromwell, the finances 
 of the country. Even though the fall of value 
 in the precious metals, since the ages under 
 consideration, be taken into account, the revenue 
 and the expenditure sound small to modern ears. 
 In 1421 the receipts were 55,743, and the 
 expenditure, which however left several items 
 unprovided for, 52,235. Yet no financial re- 
 former need envy the moderate budget of a me- 
 diaeval government. Small as the sums to be 
 raised appear, they were not collected without 
 extreme difficulty, and government payments 
 were perpetually in arrear. The Percys were 
 driven to revolt by ruin impending over them, 
 through the King's tardiness in repaying their 
 large loans. Nearly at the same time, the Prince 
 of Wales was forced again and again to implore 
 for supplies necessary to carry on the campaign 
 in the Principality. Throughout the seventy 
 years over which the records extend, the soldiers 
 at Calais, on various occasions, satisfy their 
 demands for pay by seizing the wools brought 
 to the staple. The Council's resources under 
 these difficulties are curious. One of the most 
 ordinary was to pawn the royal jewels. When 
 no more money could be acquired in this way, 
 they employed, if Parliament could not be con- 
 veniently applied to for a subsidy, illegal methods 
 
The Privy Council. 55 
 
 for filling the Exchequer. Under Richard II 
 certain persons were summoned before the Council 
 without any assigned reason ; and when they 
 were brought thither, such sums were extorted 
 from them as they were impelled to give, either 
 by their loyalty or by their fears. Henry IV 
 adopted an irregular but less oppressive plan; 
 he persuaded a Council of nobles to supply him 
 with funds ; and requests for loans are to be 
 found during the reign of every King. The 
 Crown possessed however other ways of pro- 
 viding for its wants, than by extorting money. 
 What it could not obtain in coin it took in kind. 
 An instance has been already quoted, in which 
 workmen were impressed x ; and these exactions 
 of labour were, if not considered strictly legal, 
 yet submitted to, as a customary exercise of the 
 royal prerogative. At any rate they were held 
 to be justifiable, whenever the plea of the public 
 defence could be urged. Thus on different occa- 
 sions ships, and doubtless sailors, are impressed 
 to convey armies across the channel. A mode 
 of exacting money which was little likely to 
 excite popular indignation, was to make special 
 claims on resident aliens. An example of this 
 occurs in 1415 2 , when the merchants of Florence, 
 Venice, and Lucca, wore informed that a loan 
 was expected from them. They for a time re- 
 
 1 Vide p. 53, ante. 
 
 3 Proceedings of Privy Council, ii. 165. 
 
56 The Privy Council. 
 
 sisted the demand, but yielded after undergoing 
 imprisonment. These extortions, though sug- 
 gested by the defenceless position of foreigners, 
 may have appeared to be a reasonable repayment 
 for the protection afforded them by the Crown, 
 and lead naturally to the consideration of a 
 second topic. 
 
 2. Aliens II. The Council's dealings with aliens and with 
 ' e> trade. It was to be expected that the Council 
 should specially interfere with the affairs of 
 aliens. Its power was, be it borne in mind, 
 nothing but the King's prerogative exercised 
 through his officers. In theory the prerogative 
 had no limits. In practice it was limited, as 
 regarded Englishmen, by the existence of certain 
 rights on their side, which it is hardly an in- 
 accuracy to say, were gained from the Crown by 
 bargain. Rights so obtained could in no way 
 affect foreigners. Those aliens, therefore, who 
 settled in England, were both in theory and in 
 fact, under the arbitrary rule of the monarch. 
 Their rights, where they had any, were either 
 the result of special concessions made to them 
 by the King, or else of some particular treaty, 
 contracted between the English Crown and the 
 country to which they belonged. The position, 
 therefore, in which aliens stood, during the Middle 
 Ages, was not altogether unlike that occupied 
 by foreigners, who at the present day take up 
 their residence at Constantinople ; since the 
 
The Privy Council. 57 
 
 rights of such persons depend on the conven- 
 tions existing between their native country and 
 the Sublime Porte. Treaties could be known 
 only to the Council; and of their extent and 
 validity, the King's advisers alone could be the 
 judges. Let the situation of resident foreigners 
 be understood, and their treatment by the 
 Council, not only becomes intelligible, but 
 affords a striking illustration of the fact, that 
 the prerogative had no bounds, except where 
 some established right came in to limit its 
 exercise. From the position held by aliens 
 arises the plea for exactions such as that before 
 mentioned ; from it, commands like those given 
 to the Lombards in 1426, that they should write 
 to their foreign correspondents, not in cyphers, 
 but in language that all could understand ; 
 should export from the large ports only, and not 
 enter the realm without the King's passport 1 . 
 
 Besides issuing regulations of this description, 
 the Council was bound to put into execution 
 special rules about foreign merchants, made by 
 Parliament. And here may be remarked, that 
 there always have been, and still are, many 
 particular powers, conferred on the Council by 
 acts of the legislature. "What these are could 
 only be established by a survey of all the statutes, 
 empowering the Council to act in special cases 
 a labour which would be as impossible to go 
 
 1 Proceedings of Privy Council, i. 289. 
 
58 The Privy Council. 
 
 through, as it would be vain to endeavour to 
 express its results in an essay. The Council, 
 however, appears to have been at liberty to relax 
 the operation of statutes. A good example of 
 authority given by Parliament, and of a statute's 
 operation being suspended, is found in 1433, 
 when 'it was accorded by the Lords of the 
 King's Council, as towards merchant strangers, 
 such as by the statute be bound to bring a certain 
 sum for their merchandize to the bullion in the 
 Tower of London, the Treasurer have power to 
 grant them for the King's avail, such days of 
 respite of bringing in their said sums to the 
 bullion, as between them and him shall more be 
 Disputes accorded 1 .' No transactions give a better illus- 
 ^ration of the footing on which aliens stood, and 
 
 men and the Council's dealings with them, than does the 
 history of the disputes between foreigners and 
 Englishmen which were brought under the Coun- 
 cil's notice. Thus a discussion arose in 1441, 
 between Genoese merchants and the Lord Mayor, 
 / as to the payment of socage 2 , in which the 
 Council decided, that the Italians were to find 
 security, and that the claim should be investi- 
 gated. At the same time was brought before 
 the King's advisers a complaint that English 
 merchants were not fairly treated in 'Pruce, 
 Hansze, and the Danske 3 ,' and an order was 
 
 1 Proceedings of Privy Council, iv. 145. 
 
 2 Ibid. v. xci, and 169. 3 Ibid. v. 170, 171, 178. 
 
The Privy Council. 59 
 
 given that application should be made to these 
 countries for redress. Other examples could be 
 produced; but an account of this celebrated 
 dispute, quoted from the Council Records, ap- 
 propriately closes this branch of our subject; 
 since it presents a picture of the Council's 
 dealings with foreigners, and exhibits the way 
 in which resident aliens were made, as it were, 
 surety for the good treatment of Englishmen 
 in the countries of which these foreigners were 
 natives. 
 
 ' The which [complaint] before them read, so 
 seemed to the Lords [of the Council], that the 
 complaint which the Englishmen made was of 
 more likeliness true than else, and willing for so 
 much as by the said complaint is shewed, that 
 the said Englishmen were not treated, ruled, 
 neither demeaned, in Pruce, Hansze, and the 
 Danske, as they of these countries be treated 
 here in England, and also that they be otherwise 
 treated, ruled, demeaned in the said countries, 
 than that the letters and seals of the Master of 
 Pruce, remaining in the King's treasury, would 
 
 ask or require, have therefore charged 
 
 them of Pruce, &c., that time being before them, 
 to write unto their countries and to the said 
 Master and Governors of Pruce, &c., shewing 
 unto them the said Englishmen's complaints, and 
 desiring the wrongs to be redressed, and from 
 henceforth to suffer Englishmen, merchants, to 
 
60 The Privy Council. 
 
 use, and do in the said countries, as they have 
 done before this time, and as they ought to do ; 
 for else the King and Lords will otherwise ordain, 
 in this behalf for the Prucieres being here, in 
 this land. For it was thought at that time, that 
 as they of England were ruled in the above said 
 countries, that they of the same, being now here 
 and repairing hither, should be ruled in semblable 
 wisel/ 
 
 That aliens should, in an especial manner, 
 come under the Council's control, appears na- 
 tural ; but some surprise is excited by the 
 Government's interference with the general 
 
 Inter- course of trade. For the Council Records con- 
 
 ference 111 
 
 with course clusively show that excessive intermeddling on 
 
 tra e. of the rulers with affairs of commerce, 
 
 is no new or modern evil. It is true, that the 
 Government meddled irregularly and with cap- 
 rice ; but its interference was of the kind of 
 which no ruler would now even dream. No 
 prerogative, for example, was more cherished, 
 and more constantly exercised by the Crown, 
 than the privilege of appointing certain places 
 as staples, i. e. as the sole towns whither it was 
 permitted to bring particular articles for sale. 
 The staple most frequently mentioned in the 
 Council's Records is Calais. The existence, 
 however, of numerous other similarly privileged 
 cities would, had every other monument perished, 
 
 1 Proceedings of Privy Council, v. 1 70. 
 
The Privy Council. 61 
 
 be kept in remembrance by the names Dunstable, 
 Barnstable, &c. The custom of conferring the 
 right of monoply on certain favoured localities, 
 was so widely spread a staple in Norway is 
 referred to in the Council's Records that it 
 possibly was recommended by some real advan- 
 tage. It may, in times of disorder, have 
 facilitated the protection of traders. At any 
 rate, it was by no means the most injurious re- 
 striction placed on trade. Innumerable statutes 
 limited the freedom of commercial intercourse, 
 as well between different parts of England, as 
 between England and foreign countries. The 
 operation of these acts was rendered more or less 
 stringent, at the will of the Council. In 1422, 
 license * was granted * statutis non obstantibus ' 
 to the Earl of Westmoreland, to export to 
 Middleburgh and Bruges five hundred sacks of 
 wool, grown in Northumberland, Westmoreland, 
 Cumberland, and the bishopric of Durham ; and 
 in 1427 the merchants 2 of Newcastle were allowed 
 to export from the said countries inferior wool 
 whithersoever they pleased, without sending it 
 to the staple at Calais. The Council possessed, 
 in addition to the right of proclaiming staples 
 and of regulating the effects of statutes, other 
 modes of influencing trade. The government's 
 practice of impressing labourers has been already 
 referred to. The Council exercised the further 
 
 1 Proceedings of Privy Council, iii. 115. a Ibid. iii. 355. 
 
62 The Privy Council. 
 
 privilege of erecting Guilds, as, for example, 
 a corporation of London Parish Clerks in 1442. 
 At other times it deprived corporate bodies of 
 their privileges, for instance, it prohibited the 
 craft of London Taylors from exercising the right 
 of search amongst themselves, which had been 
 conferred upon them, and ordered them to obey 
 the Lord Mayor, according to the old usages and 
 laws of London. 
 
 These details of the Council's dealings with 
 trade have, in addition to their intrinsic interest, 
 a peculiar value. Some of them throw light on 
 rights which the Crown still exercises. The 
 proclamations about trade in the fifteenth 
 century, call to recollection the ' orders in 
 Council' of the last French war, and procla- 
 mations about goods of war, still frequently put 
 forth. The enforcement of statutes against aliens 
 has still its parallel, whenever Alien Acts are 
 put into operation. In the right of impressment 
 was till lately seen a lingering vestige of the 
 Crown's ancient claim to exact forced labour. 
 Moreover, these extraordinary exertions of au- 
 thority must be carefully noted, in order to 
 understand how it was that the rule of the 
 Tudors and Stuarts, while differing in essential 
 repects from that of Henry VI, could never- 
 theless in many points preserve the form of a 
 mediaeval government. 
 3. The HI. The Council and the Church. It was a 
 
 Church. 
 
The Privy Council. 63 
 
 necessity that the Council should come fre- 
 quently into contact with the ecclesiastical 
 powers. Still, on the whole, its minutes do not 
 contain so much reference to the Church as 
 might have reasonably been looked for. Allusions 
 indeed occur to the Council at Basle, and it is 
 clear that the Ministers of Henry VI watched 
 carefully the proceedings of that assembly. 
 The facts, however, recorded are of more interest 
 to the ecclesiastical historian, than to the an- 
 nalist of the Privy Council's history. That the 
 contests between the English government and 
 the Court of Rome should have been but few, 
 during the earlier half of the fifteenth century, 
 is explained by the fact that the policy of the 
 house of Lancaster was to court the priestly 
 power, and that during part of Henry VI's 
 reign, Cardinal Beaufort's influence predominated 
 at the Council Board. Moreover, one great 
 cause of dispute the question of the clergy's 
 right of appeal to Rome, had been decided in 
 favour of the Papal See. Some disputes, how- 
 ever, are recorded. The most important have 
 reference to the appointment of Bishops. In 
 these discussions the advantage remained, for 
 the most part, with the Papacy 1 , though the 
 Council both maintained its right to make 
 ecclesiastical appointments, and, despite some 
 
 1 Conf. Proceed, of Privy Council, iii. 210; iv. 76, 281. 
 
64 The Privy Council. 
 
 signs 1 of subserviency to Papal influence, not 
 only kept a jealous eye on the distribution of 
 Bulls, but intervened in minor matters, where 
 the Crown's interference would hardly have 
 seemed to be necessary. At least it is surprising 
 to find that a monk, who had procured the Pope's 
 permission, to go to a 'harder order,' for the 
 ' more quiet and peace of his soul, to the intent 
 the more devoutly to serve and please Almighty 
 God,' craved pardon of the Crown for having 
 acted without its sanction ; and that some nuns, 
 desirous of enjoying the services of ' a good old 
 Friar, a good preacher, a man of good conver- 
 sation,' seek an order from the King to compel 
 the Friars Minor to admit the said Friar to the 
 priory of Rowner 2 . By far the most usual 
 prayer from Churchmen was for exemptions 
 from the Mortmain laws, and the Council's 
 minutes are full of answers to this request. 
 Cases of Before the Council came frequently cases of 
 heresy or sorcery. The power exerted by the 
 Crown, with regard to these matters, in a later 
 age, makes it of interest to ascertain how the 
 Council dealt with them under the Lancastrian 
 dynasty. Allusions in the minutes to heretics 
 or Lollards are not numerous. The charge given 
 to the bishops 3 to suppress heresy has been 
 alluded to, and rather suggests that the reason 
 
 1 Proceedings of Privy Council, iii. 180. 
 
 2 Ibid. vi. 66, 67, 68. 3 Ibid. ii. 168. 
 
The Privy Council. 65 
 
 why so few heretics were brought before the 
 Councillors was that the bishops had power of 
 themselves to deal with them. Thus, on the 
 2nd of January, 1406, the bishop of Lincoln is 
 exhorted to bring before him certain persons 
 accused of practising magic, sorcery, necroman- 
 cery, &c., to the scandal of the Catholic faith 1 . 
 On another occasion are brought before the and 
 Council persons charged with sorcery 2 , who are 
 dismissed after examination. In general the 
 government seems to have been little disposed 
 for active measures against heresy, unless false 
 doctrine was combined with breaches of the 
 peace; as, for example, when in I43i 3 a revolt 
 took place in Oxfordshire, which had some con- 
 nection with religious excitements, or when at 
 Coventry 4 a friar openly aroused the people to 
 attack the priesthood. In such cases the Council 
 acted with vigour, though less as a defender of / 
 the faith than as protector of the King's peace. 
 
 IV. The Council as preserver of the peace. 4-. The 
 The bare expression, 'the King's peace,' carries peace, 
 the mind back to a period when the phrase had 
 an appropriateness which it has since lost ; 
 when public order, which now seems almost the 
 natural condition of social life, was with difficulty 
 secured, and when upheld was maintained rather 
 as a royal privilege than as a national right. 
 
 1 Proceedings of Privy Council, i. 288. 2 Ibid. iv. 114. 
 3 Ibid. iv. 107. * Ibid. vi. 40-45. 
 
66 The Privy Cozmcil. 
 
 English rnonarchs, it is true, from the time of 
 the Conquest, steadily opposed the right of the 
 nobles to carry on private wars ; but it is by no 
 means clear that the nobility did not in early 
 times think themselves at liberty to settle their 
 own quarrels by force of arms. The claim, at 
 any rate, to receive protection from the law, was 
 looked upon in a light entirely different from 
 that in which it is viewed in modern days, as is 
 manifest from no fact more clearly than from 
 the proclamation 1 by which Edward I put the 
 whole clergy out of the law's protection, because 
 they did not grant him a subsidy. To preserve 
 therefore the public peace was as much the 
 privilege as the duty of the Crown. This pre- 
 rogative was, as a matter of course, exercised 
 through the Council. The ordinary law courts 
 also aimed at securing general tranquillity, but 
 in cases where actual disturbances had arisen, 
 the intervention of the executive government 
 was at once more natural and more efficient than 
 proceedings through the slow course of law, 
 itself frequently impeded by the very violence 
 which it was called upon to repress. Instances 
 of the Council's interference abound. At one 
 time Norwich 2 , at another Northampton 3 , at a 
 third Coventry 4 , are the scenes of armed violence, 
 
 1 Stubbs, Const. Hist. ii. (Library ed.), 142. 
 
 2 Proceedings of Privy Council, v. 15 & 290. 
 
 3 Ibid. v. 191. * Ibid. vi. 45. 
 
The Privy Council. 67 
 
 and demand the attention of the royal Coun- 
 cillors. The assizes themselves are, on various 
 occasions, interrupted by the forces of neigh- 
 bouring nobles, and the Council are forced now 
 to stir up the sheriffs l to greater energy in the 
 maintenance of order; on other occasions, as 
 during the quarrel between the Earl of Devon 
 and Sir W. Bonville, to summon the offenders 
 before their bar 2 . The Council's interposition 
 was not, however, confined to cases of general 
 disturbance. In 1421 Sir James Berkeley 3 is 
 summoned to answer the charge of resisting, by 
 use of arms, the Countess of Warwick's entrance 
 into the manor of Wooton. At this point the 
 Council's character as preserver of the peace 
 merges in its other aspect as a law court, or (to 
 use modern expressions), its executive and 
 judicial functions become confused. 
 
 It is remarkable that while the Council's 
 minutes represent it as pre-eminently the executive 
 government, it is to its character as a law court 
 that attention has been almost exclusively 
 directed. The causes of this one-sided view of 
 the Council's position, which has been taken by 
 writers of repute, are to be found in the immense 
 extension 4 which its judicial powers acquired 
 
 1 Proceedings of Privy Council, v. 35 ; or even the judges, ibid. 
 192. 
 
 2 Ibid. v. 173, 174. 8 Ibid. ii. 287. 
 
 * Conf. e. g. Palgrave, ' Authority of the King's Council,' 
 and Hallam's Middle Ages, &c. 
 
 F 2 
 
68 The Privy Council. 
 
 under the Tudors, and in the prominence which 
 this branch of its authority obtains in Parlia- 
 mentary petitions. Yet the judicial aspect of 
 the Council, though liable to cause error if 
 viewed alone, is of first-rate importance. 
 The When the public peace was disturbed, the 
 
 as a Law Council, as has been seen, took measures to 
 Court. preserve order. So far it pursued the course 
 which would be taken by the governments of 
 all ages. There is however a point where, in 
 modern times, the action of the executive stops, 
 since in no state of the present day is the 
 government which suppresses a riot identified 
 with the court which tries rioters. In the 
 fifteenth century such an identification was to 
 be found in the Council. Hence the Councillors 
 went beyond the limits prescribed to the action 
 of a modern government, and not only caused 
 breaches of the peace to be repressed, but also 
 summoned before their tribunal those by whom 
 the peace had been broken. Thus, in the 
 instances before referred to, of disturbances 
 caused by Sir James Berkeley and Sir W. 
 Bonville, the Council examined witnesses of 
 the crimes committed. Again, the same body 
 naturally called before it those who had stopped 
 the course of justice. Whenever, in fact, either 
 from defect of legal authority to give judgment, 
 or from want of the might necessary to carry 
 their decisions into effect, the law courts were 
 
The Privy Council. 69 
 
 likely to prove inefficient, then the Council 
 stepped in, by summoning before it defendants 
 and accusers. For example, some persons who, Cases in 
 after invoking the arbitration of the Justices on judicial 
 
 a matter in dispute, refused to abide by their 
 decision, are summarily brought before the employed. 
 Council 1 : the Countess of Stafford, on failure 
 to appear, is condemned by default, and the 
 quarrels of Ryman and Flete, of the Earl and 
 Countess of Westmoreland, &c., are made subjects 
 of judicial investigation. 
 
 A tribunal of this description was no doubt ef- 
 ficient, but its action was irregular and arbitrary, 
 and from the time of Richard II to that of 
 Henry VI its authority was met by the constant 
 attacks of Parliament. This opposition has been 
 before alluded to. It has been seen, that as 
 early as Edward III the Commons remonstrated 
 against the Council's judicial power. This 
 authority had been exercised in two ways ; 
 first, by issuing special commissions of ' oyer 
 and terminer ; ' secondly, by summoning accused 
 persons. The first process had, after repeated 
 remonstrances from Parliament, been abandoned, 
 before Richard II ascended the throne. The 
 second ertainly survived, and even received 
 extension. 
 
 Though Richard II's reign is the era when 
 the Chancellor's separate equitable jurisdiction 
 
 1 Proceedings of Privy Council, iii. 112. 
 
70 The Privy Council. 
 
 Policy first became firmly established, the Commons 
 Commons, continue for a considerable period to combine 
 in their remonstrances the names of the Council 
 and of the Chancery. Indeed there is little 
 reason to suppose that in the fifteenth century 
 persons brought before the Council and those 
 summoned to the presence of the Chancellor 
 came before an essentially different court. In 
 the first year of Henry IV, the Commons 
 petition that all personal actions shall be tried 
 at the common law, and not before the Council. 
 At the beginning of the next reign a petition 
 of a similar tendency is presented (3 Henry V). 
 In the ninth year of Henry V the Parliament 
 slightly changed their tactics. They attempted 
 to put the Council under Parliamentary control, 
 rather than to curtail its power. This endeavour 
 failed, but in the earliest year of Henry VI's 
 reign the attack is renewed. The proposed 
 enactment of 1422 throws some light on the 
 Parliament's views. It is in substance that ' No 
 
 Proposed one shall be compelled to answer before the Chan- 
 enactment ,, ., ~ ., , , 
 of 1422. cellor, or the Council, or elsewhere, concerning 
 
 any matter where remedy was given at common 
 law, and that no writ of subpoena should issue 
 commanding any one to appear in Council, or 
 Chancery, until the plaintiff should have ex- 
 hibited his bill, which shall be examined and 
 approved by the Justices of the one bench or 
 the other, that the complainant of the matter 
 
The Privy Council. 71 
 
 or grievances in the said bill cannot have action 
 or remedy at the common law in any manner 1 .' 
 This petition, like all others of the same tenor, 
 was not suffered by the Crown to pass into 
 a statute. It is remarkable, as being the last 
 protest made for some ages against the Council's 
 power. Thirty years later the feelings of the 
 Commons appear to have changed, and the Act 
 (31 Hen. VI) passed in alarm at Cade's rebellion, 
 enhances the authority of the Council. The 
 failure of the Commons' efforts, and their 
 apparent alteration of policy need explanation. 
 This is easily discovered, by examining what 
 their opposition to the Council's judicial power 
 really meant. They had various reasons for 
 viewing with jealousy the habit of summoning 
 persons before the King's Ministers. One doubt- 
 less was that such summonses were made 
 instruments of extortion. Another was the 
 hostility with which they looked on the decision 
 by the arbitrary will of the King of questions 
 which should have been decided by the im- 
 mutable rules of regular law. With this feeling 
 was combined a somewhat different sentiment, of 
 dislike to the introduction of the civil law. The 
 Parliament consisted, to a great extent, of 
 common law lawyers, and was animated by 
 their professional feelings. The struggle there- 
 fore carried on by the Commons was directed 
 
 1 See Palgrave, 'Authority of the King's Council,' pp. 50-52. 
 
72 The Privy Council. 
 
 as much against the equitable jurisdiction of 
 Chancery, as against the arbitrary exercise of the 
 prerogative. From this source the failure of 
 their efforts. The Chancellor's equitable juris- 
 diction, though liable to abuse, conferred con- 
 siderable real benefits, especially as the ordinary 
 Judges were too much tied down by technical 
 rules. Thus, by assailing an institution which 
 was of true value, the Commons weakened the 
 force of their attacks on arbitrary exercises of 
 authority which were an indubitable evil. More- 
 over the circumstances of the times had gradually 
 changed before the Commons relaxed the vigour 
 of their attacks. The Court of Chancery had 
 gradually come to act, though not on the same 
 principles as those of the common law courts, yet 
 on rules as fixed. Meanwhile the Council's 
 judicial authority had, to judge by the minutes 
 of Henry VI' s reign, been exerted chiefly in 
 cases where from the might of the offenders the 
 courts really were powerless to enforce justice. 
 Everyone also must have felt that the perils of 
 the age which saw the Wars of the Roses, were 
 rather the lawlessness of the nobles than the 
 tyranny of the Crown. 
 
 Were the It is, indeed, a question agitated by writers of 
 g reat eminence, whether or not the judicial power 
 
 powers o f the Council was legal. The inquiry has 
 
 legal ? 
 
 a real meaning, when made concerning the 
 authority exercised by the Council under the 
 
The Privy Council. 73 
 
 Tudors ; but it may not be presumptuous to 
 suggest, that made with reference to the Council 
 of the fifteenth century, the question is futile. 
 Judged of by our conceptions of law, the 
 authority of the Council must be pronounced 
 arbitrary. Were, however, these conceptions 
 entertained by any statesman in the age of 
 Richard II, or of Henry VI ? It may, it is true, 
 be urged that the Commons attacked the use of 
 the Council's power. This is true, but it must 
 be remembered that the Commons themselves 
 were ready to leave the Council a field of 
 action, wherever men needed to be coerced, 
 whose might rose above that of the law. 
 
 Though the lawlessness of the Middle Ages Lawless- 
 
 T , ... . p. -iii ness under 
 
 has become a trite expression, tew possibly nave f eu dal 
 formed any adequate idea of what the law- 8 y stem - 
 lessness in reality was. The difficulty of doing 
 so is increased by the fact, that the amount 
 of disorder actually existing varied greatly 
 under every different king. William I and his 
 vigorous successor administered an efficient, 
 if rough-handed species of justice ; moreover, the 
 feudal system itself, when at its best, set some 
 bounds to disorder. Gradually the system gave 
 way. Under Henry VI anarchy had reached 
 its height. The Wars of the Roses were a 
 struggle, devoid of any principle on the part 
 either of the conquerors, or of the conquered. 
 Nevertheless, they fill an important place in 
 
74 The Privy Council, 
 
 history, since they are neither more nor less 
 than the break-down of the feudal system. The 
 following passage, quoted from an ordinance, 
 gives a glimpse into the general confusion 
 existing at the outbreak of the Civil Wars. 
 
 'In eschewing of divers riots, excesses, mis- 
 governance, and disobedience against the King's 
 Estate, and for the peaceable governance of his 
 laws, and in example giving of restful rule and 
 good governance to all his subjects, it is advised 
 by the said Lords of the Council, determined, 
 and ordained, that no Lord, of what estate, 
 degree or condition that he be of, wittingly 
 receive, cherish, hold in household, nor maintain 
 pilours, robbers, oppressors of the people, man- 
 slayers, felons, outlaws, ravishers of women, 
 against the law, or any other open misdoer, so 
 that the parties grieved by them shall not dare 
 more pursue against them lawfully, because of 
 such support of his Lordship ; and also, that 
 neither by colour, or occasion of feofment, nor 
 otherwise, my said Lords shall take no men's 
 cause or quarrel in maintenance, or conceive 
 against any judge, or officer, indignation, or dis- 
 pleasure, for doing his office in form of law, nor 
 lette by words, writings, or elsewise, the King's 
 common law to have its course V 
 
 This ordinance bears on its face the voucher 
 for the truth of the evils denounced ; and it is 
 
 1 Proceedings of Privy Council, iii. 217. 
 
The Privy Council. 75 
 
 easy to understand, that in a state of society 
 where noble lords opposed the Justices, and 
 * maintained and cherished ' robbers, pillagers, 
 and ravishers of women, the people turned with 
 hope to the King and his Council, who professed 
 at least to prefer the cause of the poor, and by 
 means, arbitrary it might be, but yet efficacious, 
 gave justice in those numerous cases where there 
 was 'too great might on the one side, and too 
 great unmight on the other.' 
 
PAKT III. 
 
 HENRY VI TO WILLIAM IV. 
 
 Gap in the IN the records of the Privy Council occurs a 
 history. l n g blank. From 1460 to 1520 there exists no 
 memorials of the government's daily transactions. 
 The effect produced by this gap is to place side 
 by side two most different eras of English 
 history. The weakness of the last Lancastrian 
 is brought into immediate neighbourhood and 
 stands in striking contrast with the might of the 
 most powerful of the Tudors. At the date when 
 the records fall short, the Crown had fallen to 
 its lowest depth of degradation. The King was 
 imbecile. A claimant to the throne had ap- 
 peared, who had already wielded the power of 
 royalty, and seemed about to demand its title. 
 Throughout the land reigned that worst form of 
 anarchy, in which the leaders of disorder are 
 nobles. The age was one in which the nobility 
 were everything. The barons had long defied 
 the royal authority. They neglected summonses 
 to Parliament. The great Councils, then almost 
 yearly held, were rather assemblies of armed 
 nobles than either Parliaments or the meetings 
 of the King's advisers. In 1520 all is changed; 
 
The Privy Council. ' 77 
 
 a King is on the throne whose title is too good 
 to be disputed, and whose power is too great 
 to allow even a doubtful title to be questioned. 
 The nobles who had defied the just rights of 
 Henry VI dared not oppose the most arbitrary 
 decrees of Henry VIII. The change was no 
 mere alteration of men. It had happened often 
 enough before that a vigorous monarch had 
 succeeded to a feeble ruler; an Edward I re- 
 gained the authority lost by a Henry III. Now, 
 however, it was a change, not of persons but of 
 circumstances. In other ages the influence 
 of particular kings had been increased. Now 
 the power of the Crown itself had arisen. To 
 trace the causes of this revolution belongs to 
 general history. The change itself may be Changed 
 summed up in the statement, that the feudal nation, 
 nobility had been broken to pieces. It is 
 scarcely a paradox to assert, that from the 
 weakness of the sixth Henry arose the strength 
 of the eighth. No astuteness of policy could have 
 brought the nobles to ruin so complete as the 
 destruction to which they were hurried by their 
 own violence. In wars where different principles 
 are opposed to each other it sometimes happens 
 that zeal for a great cause will lead men to over- 
 look private animosities. When war is carried on 
 to obtain nothing but the objects of ambition, the 
 enthusiasm which finds no scope for its exercise 
 in the promotion of a noble end, degenerates into 
 
78 The Privy Council. 
 
 bitter hatred of opponents. Such a contest was 
 the War of the Koses. No principle animated 
 the two sides. No plea of public good was even 
 put forward. Whether any man was a Yorkist 
 or a Lancastrian depended solely on his con- 
 nections or his interests. Yet just because no 
 principle was at stake the contending factions 
 were divided from each other by the most 
 intense feelings of hatred. Neither side was 
 content with bare victory. The triumph of the 
 battle consisted in the subsequent destruction of 
 distinguished adversaries. The execution of the 
 Duke of York and the murder of Henry's 
 youthful son mark the spirit of the contest. 
 Hence, when the war closed, scarcely one noble 
 family existed of which members had not fallen 
 by the sword or by the axe. It wanted but the 
 cunning of Richard III, and the crafty policy of 
 Henry VII to complete the work which the 
 aristocracy had themselves begun, and when 
 Henry VIII mounted the throne he found 
 a nobility more broken in spirit than it has 
 fallen to the lot of any other English monarch 
 to govern. Their thorough depression is proved 
 by the fact, that they did not resume a tone of 
 independence till the reign of Charles I. For 
 whatever opposition was made to the Crown's 
 arbitrary acts during the rule of the Tudors 
 proceeded from the Commonalty, and not from 
 the Peerage of England. 
 
The Privy Council. 79 
 
 The power of the Barons had in former ages 
 curbed the will of the King. In later times the 
 Commons curtailed the prerogative. In the age 
 of Henry VIII the authority of the nobles had 
 fallen, and the influence of the Commons, as far 
 as it existed, supported the might of the Crown. 
 ' Otium divos rogat ' has, at different periods, */ 
 expressed the wishes of a whole people. It 
 represents the prayer of the English Commons 
 when Henry VII seized the throne. The 
 petition was fully answered, for civil wars of 
 half a century were followed by a hundred and 
 fifty years of almost unbroken tranquillity. 
 Unlimited, however, as was the power of the Founda- 
 Tudors' government, it appears at first sight pow er of 
 difficult to see in what its strength consisted. The the Tudors - 
 modern notion of a strong government is one 
 disposing of a large army. In France, before 
 the age of Henry or Elizabeth, the rulers had 
 possessed themselves of this instrument of power. 
 In England a standing force was unknown. A 
 few yeomen of the guard added something to the 
 dignity, but nothing to the might of the Crown. 
 Henry VIII did not even make an effort to 
 obtain a regular army. So foreign was a body 
 of trained soldiers to English notions, that till 
 the age of the Commonwealth, no permanent 
 army existed, and its existence was first ac- 
 quiesced in by the nation, after the revolution 
 of 1688. What then was the foundation on 
 
8o The Privy Council. 
 
 which the power of the Tudors rested? The 
 answer belongs directly to the subject of this 
 essay. For, from the accession of Henry VII 
 to the sixteenth year of Charles I, the history 
 of the Council is the history of the regal power. 
 The century and a half 1485 to 1640 which 
 opens with the victory of Bosworth and closes 
 with the meeting of the Long Parliament, is a 
 period of manifold changes. During its course, 
 the Church was revolutionised, the crowns of 
 England and Scotland were united on one head, 
 the power of the Parliament first counterbalanced, 
 and at last overtopped the might of the pre- 
 rogative. Nevertheless, to any one who reviews 
 the history of the Council, these hundred and 
 fifty years present a certain semblance of unity. 
 They might be described as the age of ' govern- 
 ment by Councils,' and exhibit, in the strongest 
 colours, the merits and defects of a system nearly 
 as different from the rule of Henry V as from 
 the ministerial government of Victoria. 
 Constitu- In 1553, King Edward VI drew up a series of 
 Council, regulations for his Council, which, says Bishop 
 Burnet, 4 he seems to have considered much, and 
 been well pleased with.' The picture given does 
 not, in every detail, apply to the Council as it 
 existed under either Edward's predecessors or 
 his successors. In the main, however, it gives the 
 best conception which can be obtained of what 
 the Council was during the hundred and fifty 
 
The Privy Council. 
 
 81 
 
 years of its highest authority ; and, when com- 
 bined with other information, proves that the 
 constitution of that body had changed consider- 
 ably since 1460. The Council of 1553 consisted Regula- 
 tions of 
 of forty persons 1 . They were divided into five 1553. 
 
 commissions, or (to use a modern term) com- 
 mittees 2 . 
 
 i. A committee for hearing those suits which Commit- 
 were wont to be brought to the whole board, council. 
 This commission was to hear suits, to answer 
 the parties, to make certificate what suits they 
 think meet to be granted, &c. Also to despatch all 
 
 1 Burnet's Reformation (Clarendon Press ed., 1865), v l- " 
 PP- 357> 358; vol. v. pp. 117-120. 
 3 List of Councillors : 
 
 1 . The Bishop of Canterbury. 
 
 2. The Bishop of Ely, Lord 
 
 Chancellor. 
 
 3. The Lord Treasurer. 
 
 4. The Duke of Northumber- 
 
 land. 
 
 5. The Lord Privy-Seal. 
 
 6. The Duke of Suffolk. 
 
 7. The Marquis of Northamp- 
 
 ton. 
 
 8. The Earl of Shrewsbury. 
 
 9. The Earl of Westmorland. 
 10. The Earl of Huntington. 
 IT. The Earl of Pembrook. 
 
 12. The Viscount Hereford. 
 
 13. The Lord Admiral. 
 
 14. The Lord Chamberlain. 
 
 15. The Lord Cobham. 
 
 1 6. The Lord Rich- 
 
 17. Mr. Comptroller. 
 
 1 8. Mr. Treasurer. 
 
 19. Mr. Vice-Chamberlain. 
 
 G 
 
 20. Mr. Secretary Petre. 
 
 21. Mr. Secretary Cecil. 
 
 22. Sir Philip Hobbey. 
 
 23. Sir Robert Bowes. 
 
 24. Sir John Gage. 
 
 25. Sir John Mason. 
 
 26. Mr. Ralph Sadler. 
 
 27. Sir John Baker. 
 
 28. Judge Broomley. 
 
 29. Judge Montague. 
 Mr. Wotton. 
 Mr. North. 
 
 The Bishop of London. 
 The Bishop of Nor- 
 wich. 
 
 Sir Thomas Worth. 
 Sir Richard Cotton. 
 
 36. Sir Walter Mildway. 
 
 37. Mr. Solicitor. 
 
 38. Mr. Gornold. 
 
 39. Mr. Cook. 
 
 40. Mr. Lucas. 
 
82 The Privy Council. 
 
 matters of justice, and to send to the common 
 courts those suits that be for them. 
 
 2. A committee for the calling of forfeits done 
 against the laws, and for punishing the breakers 
 of proclamations that now stand in force. 
 
 3. A committee for the state. 
 
 4. A committee to look to the state of all the 
 courts, especially of the new erected courts, as 
 the Augmentations, the first fruits, and tithes, 
 and the wards, &c. 
 
 5. A committee for the bulwarks. 
 
 This distribution of official duties is followed 
 by various regulations. They are minute, but 
 do not differ essentially from those established 
 The Secre- in former reigns. Their main peculiarity is the 
 care taken that every matter should be brought 
 under the royal notice, and that the Secretaries 
 should be a channel of communication between 
 the Councillors and their master. The list of 
 the Council, combined with the way in which 
 the provinces of different committees are 
 marked out, points to alterations in the 
 assembly's internal constitution. The Council 
 in 1553 forms a much larger body than it 
 usually did in preceding centuries. Great 
 prominence is given to the Secretaries, officials 
 who at an earlier date are rarely mentioned. 
 Their history throws light on the gradual 
 alteration in the Council's position, and is more- 
 over deserving of especial attention from its 
 
The Privy Council. 83 
 
 connection with the growth of the modern 
 Cabinet 1 . Originally their situation had little 
 dignity or importance. The Secretary (for in 
 the earliest ages there was only one) was, what 
 his name suggests, merely the King's clerk, 
 an appellation by which, until the reign of 
 Henry III, he was frequently known. In rank, 
 pay, and estimation, he stood on a level with 
 the clerk of the kitchen, the chaplain, and the 
 surgeon. He possessed no political influence, 
 unless, as at times happened, he was one of the 
 Council. The number of Secretaries was, after 
 some changes, increased to two, and by almost 
 imperceptible degrees, the dignity of the office 
 increased. Thus, Beckington, who held the 
 Secretaryship under Henry VI, was a diplo- 
 matist of considerable reputation. Under Ed- 
 ward IV various bills and warrants are made to 
 pass through the Secretaries' hands. Neverthe- 
 less the same rank is assigned them in 1482 as 
 at an earlier date. From 1485 a change is notice- 
 able. The men who filled the Secretaryship are 
 persons of importance. Dr. R. Fox, who served 
 Henry VII as Secretary, became Bishop of 
 Exeter. Dr. King, his successor, was considered 
 a fitting person to sign a treaty with Portugal. 
 During Henry VIII' s reign, the Secretaryship is 
 occupied by men such as Cromwell, and from 
 this period the Secretaries take rank with a 
 
 1 Proceedings of Privy Council, vi. Preface. 
 G 2 
 
84 The Privy Council. 
 
 baron of the realm, always are members of the 
 Council, and at last by 31 Hen. VIII are made 
 so ex officio. They had then gained an important 
 position, which they have never lost, and it 
 needed but one step more for them to pass from 
 mere Secretaries into Secretaries of State. 
 The ordin- Another peculiarity in Edward's Council is 
 Council- 7 the admission of persons, such as the two 
 Judges, who do not belong to the Committee 
 for the State. This is the sign of an alteration 
 which had taken place. In the reign of Henry 
 VIII appear, for the first time, some so-called 
 ' ordinary ' Councillors, of whom some never 
 and others rarely signed documents which bear 
 the signature of Privy Councillors. From these 
 facts may be inferred, that from Henry VIII's 
 reign the Councillors were divided into Privy 
 Councillors and Ordinary Councillors ; or, what 
 perhaps is more probable, that while all called 
 to the Council Board were of equal rank, many 
 Councillors were, as a matter of course, not 
 consulted on questions of general policy, but 
 acted merely as a member of particular com- 
 missions mostly of a judicial character. The 
 existence of such Councillors is of importance, 
 because it explains some points in the late 
 history of the Council, and shows what was one 
 of the steps by which originated the custom of 
 appointing Privy Councillors, who hold the 
 title without performing the duties of the office. 
 
The Privy Council. 85 
 
 The Council's internal changes depended The 
 
 Council 
 
 entirely on the great and important alterations Position, 
 which had taken place in its position. The 
 mere catalogue of Councillors tells of a revolution 
 since the day when all the important offices of 
 government had been in the hands of nobles. 
 Of the forty persons making up the whole 
 Council, twenty-two are commoners, whilst in 
 the most important of the committees, that ' for 
 the State,' out of twenty persons seven are 
 commoners, two bishops, and eleven noblemen. 
 In the other commissions the majority is formed 
 of untitled persons. This was no novelty of 
 Edward VI's reign. In 1536 the Yorkshire 
 rebels complained that the Council was filled by 
 men of humble birth. The King's reply scarcely 
 denies the charge, but palliates it by the 
 assertion, that whilst there were then in the 
 Council ' many nobles of birth and condition V 
 at the King's accession there had been among the 
 royal advisers, 'of the Temporalty but two 
 
 worthy calling noble, others, as the lord 
 
 Marney and Darcey, but scant well born gentle- 
 men, and yet of no great lands ; the rest were 
 lawyers and priests, save two bishops.' The 
 Council had entirely changed its position with 
 reference to the crown. It had ceased to be a Depen- 
 check on the King's will, and sunk into a body 
 of officials. No change of outward form had 
 
 1 Proceedings of Privy Council, vii. Preface, iii, iv. 
 
86 The Privy Council. 
 
 been necessary to work this alteration. Henry 
 VII exercised no right which did not in theory 
 belong to Richard II. None the less, he and his 
 successor carried out a revolution. The inde- 
 pendence of the Council had rested on the 
 presence of men who could not easily be 
 removed. The introduction of numerous com- 
 moners changed the nature of the whole body. 
 The nobles might retain their hereditary offices, 
 but these offices themselves had ceased to be 
 by depres- important. In nearly every one of them a 
 nobles deputy performed the duties, and possessed the 
 real influence of the place, whilst the nominal 
 superior added by his presence dignity to the 
 assembly, without himself possessing weight or 
 authority. England was governed, not through 
 peers of ancient lineage, but through the Crom- 
 wells, the Sadlers, the Petres, and the Cecils, 
 who constitute the glory of the Tudors' rule. 
 The promotion of such men was a national 
 blessing ; but it increased immensely the power 
 of the Crown, by undermining the independence 
 of the Council. 
 
 Another cause tended at the same time 
 towards the same result. The presence of eccle- 
 siastical dignitaries had at other times been a 
 source of strength to the Council. In the reigns 
 of Henry VII, of his son, or grandson, church- 
 men continue to advise the Crowu. They give, 
 however, to the assembly in which they sit no 
 
The Privy Council. 87 
 
 element of vigour. Even before the Reformation, 
 bishops had ceased to look towards Rome, as the 
 fountain of honour. Wolsey served too well his 
 King, not his Church. With the Reformation 
 the bishops became the dependents of the Crown. 
 The Church must have sunk low, when a Queen and depres- 
 could write to a bishop, struggling to protect his church, 
 see from spoliation : 
 
 1 Proud Prelate. You know what you were 
 when I made you what you are. If you do not 
 immediately comply with my request, by God, 
 I will unfrock you. Elizabeth.' 
 
 Many signs of the state of dependence into 
 which the Council had fallen, can be given. On 
 many important occasions it was not consulted. 
 Wolsey knew nothing of Dr. Wright's mission 
 to Rome, in 1527; and, when Henry contem- 
 plated an interview with James V, in i54i> he 
 communicated his intention to no one, except 
 the Chancellor, whose aid was necessary in 
 drawing up passports 1 . The rise of the Secre- 
 taries, to which reference has already been made, 
 was at once a sign and a cause of the Council's 
 declining independence. These functionaries 
 came into immediate communication with the 
 King. They were completely under his direction, 
 and were employed in preference to other 
 Councillors, because the absence of official 
 dignity secured their obedience, whilst their 
 
 1 Proceedings of Privy Council, vii. Preface, xii, note I. 
 
88 The Privy Council. 
 
 knowledge of business made them good ser- 
 vants. 
 
 Posthu- The Council's acts paint its character. That 
 influence the ministers were slow to oppose Henry, during 
 his lifetime, is intelligible. But the influence 
 of his commands after his death is more extra- 
 ordinary. His will ordered that ' his executors 
 should make good all he had promised, in any 
 manner of way.' In obedience to this injunction, 
 the Councillors made immense distributions of 
 lands and titles. Here the calls of duty and of 
 self-interest coincided. In other transactions 
 they paid less heed to the will of their deceased 
 lord. It is, however, remarkable that their 
 disobedience, no less than their obedience, is 
 marked by an impress of servility. Henry's 
 design had been to place the Crown, as it were, 
 in commission during his son's minority. A 
 body called executors 1 were to stand in the 
 place of the King, and the Privy Council was to 
 assist them. With strange want of spirit the 
 executors let Hertford (as Duke of Somerset) 
 be raised to the regency ; and, whilst they sunk 
 into mere Councillors, rendered him independent 
 of his Council. It seems as if the Councillors had 
 so long been accustomed to occupy a subordinate 
 position that they needed to create a master 
 when one did not exist. Their behaviour stands 
 in remarkable contrast with the course pursued 
 
 1 Hallam, Const. Hist. ;8th ed.) i. pp. 38, 39. 
 
The Privy Council. 89 
 
 by the Council of Henry VI. At his accession 
 there existed a Council of regency. Then also 
 a nobleman wished to occupy the position of 
 royalty. The claims of Bedford, or of Gloucester, 
 to hold the royal power were greater than any 
 possessed by Edward's uncle. Nevertheless their 
 pretensions were manfully withstood, and a 
 scene, already recounted, shows the vigour with 
 which ministers of the fifteenth century dared 
 confront demands to which the Councillors of 
 the sixteenth offered no opposition. One more 
 example of the Council's dependence suffices. 
 The advisers of Henry VI, under forms of deep 
 respect, frequently offered recommendations 
 which were obviously meant to be commands. 
 The ministers of Edward VI were, by the time Reguia- 
 he had reached the age of seventeen, already his EdwardVl, 
 servants. The whole tone of the regulations 
 which he drew up proves this. In such orders 
 as that * on Saturday morning they shall present 
 this collection (of business done in the week), 
 and know the King's pleasure upon such things 
 as they have concluded, and also upon private 
 suits V that ' if there arise such matter of weight 
 as it shall please the King's Majesty to be him- 
 self at the debating of, then warning shall be 
 given, whereby the more shall be at the debating 
 of it : ' or, again, that ' all warrants for reward, 
 
 1 Burnet's Reformation (Clarendon Press edition, 1865), 
 vol. v. p. 122. 
 
9O The Privy Council. 
 
 above forty pounds, and for his business and 
 affairs above a hundred pounds, pass not but 
 under His Majesty's signature:' breathes the 
 spirit of one who felt himself to be the real head 
 of the state. 
 Increase of As the Council's independence lessened its 
 
 Council's 
 
 power as powers increased. This was to be expected: 
 people 8 since from the moment that the Councillors 
 became thoroughly dependent on the Crown it 
 was the King's interest to enlarge the field of 
 their authority. For, while it had always been 
 the royal desire to enlarge the extent and force 
 of the Council's powers, it became tenfold more 
 the King's interest to do so as his advisers sunk 
 into his ministers. But what had been the 
 occasional wish and endeavour of other mon- 
 archs became the fixed policy of the Tudors. 
 Whenever it could be done, parts of the king- 
 dom were brought under the Council's direct 
 by (i) sub- control. Poyning's Act of 1494 placed the Irish 
 special Parliament under its rule, and (though the circum- 
 Council's stance is of no weight in itself) it is a curious 
 govern- s ig n o f the prevailing policy that during Henry 
 VII's reign Jersey and Guernsey were brought 
 beneath the direct government of the Council. 
 At the same time every opportunity was taken 
 to erect special Councils for the government of 
 different parts of England. Though they were 
 founded at various periods, and under different 
 monarchs, their formation was carried out so 
 
The Privy Council. 91 
 
 consistently, that in 1640 the bodies existing 
 under the names of Councils of the North, of 
 Wales, &c., ruled, it is said, over a third of 
 England. These tribunals were formed on the 
 model of the Privy Council, and were to some 
 extent dependent on it. Their nature can be 
 understood only by following in detail those 
 steps by which the Council's powers were 
 extended. 
 
 Among the regulations of 1553, is one calcu- 
 lated to arrest attention, to the effect that 'there 
 be a commission for the calling of forfeits done 
 against the laws, and for the punishing of of- 
 fenders against proclamations which now stand in 
 force.' The point which requires explanation is 
 the nature of proclamations. At all times it has (2) power 
 been the natural prerogative of royalty to issue mations. 
 proclamations of the royal will, of the state of 
 the law, of warning to those likely to commit 
 offences, or of encouragement to arrest those who 
 had offended. These proclamations are regarded 
 as solemn expressions of the King's will, and 
 are always put forth 'with the advice of the 
 Council.' Their exact force is a matter which 
 even now cannot precisely be decided, since it 
 labours under the uncertainty affecting all ques- 
 tions bearing on the limits of the prerogative. 
 The best established opinion is, that while a 
 proclamation cannot make a law, it can add 
 force to a law already made; that (to use the 
 
92 The Privy Council. 
 
 words of judges 1 living in the reign of Mary) 
 'the King may make a proclamation quoad 
 terrorum populi, to put them in fear of his dis- 
 pleasure, but not to impose any fine, forfeiture, 
 or imprisonment ; for no proclamation can make 
 a new law, but only confirm and ratify an 
 ancient one.' Though this was the view of the 
 lawyers, it was not the opinion held by the 
 Tudors. Their constant aim was to give pro- 
 clamations the force of laws, and thus to render 
 the King's Council a legislative body. Had the 
 endeavour succeeded, the Council would have 
 occupied the position of a French Parliament; 
 a body to which, both in origin and history, it 
 bore a close resemblance. The attempt was for 
 a moment crowned with success. In 1539, 
 Henry VIII 2 obtained from the most servile 
 of Parliaments, that 'proclamations made by 
 the King's Highness, with the advice of his 
 honourable Council, should be obeyed and kept, 
 as though they were made by Act of Parliament.' 
 The hand of a vigorous ruler was needed to wield 
 power so immense. The regency who succeeded 
 Henry were not equal to the task, and the act 
 was repealed 3 . Though, however, no further 
 attempt was made to transfer the legislative 
 functions of Parliament directly to the Council, 
 proclamations were nevertheless treated much 
 
 1 Conf. Hallam's Const. Hist. (8th ed.) i. 337. 
 2 31 Hen. VIII. cap. 8. 3 I Edward VI. cap. 12. s. 4. 
 
The Privy Council. 93 
 
 as laws. Under Edward VI many ecclesiastical 
 changes were first promulgated by proclamation, 
 and afterwards sanctioned by Parliament. In 
 1549, the justices were ordered by the same 
 means to arrest tellers of vain forged tales, and 
 commit them to the galleys, there to row during 
 the royal pleasure. In the reigns of Mary and 
 Elizabeth, proclamations were perpetually is- 
 sued. By them Anabaptists were banished, the 
 culture of woad forbidden, and the further 
 increase of London a constant object of royal 
 solicitude prohibited. It was, moreover, one 
 of the Star Chamber's special cares to enforce 
 the observation of proclamations ' not yet made 
 into statutes.' 
 
 The weight given to the Council's edicts was (3) Con- 
 not the sole or main extension of its sway. The new Courts 
 great aim of royal policy was to place the law c^cil 
 courts under its influence ; various means were 
 employed to effect this object. New Courts 
 were erected, such as the High Commission 
 Court, the Court of Requests, the 'various 
 new courts ' (mentioned in the regulations of 
 1 553)5 which to a great extent consisted of 
 Councillors, and were all under the supervision 
 of the Council. All these instruments of (4) Exten- 
 despotism sink into insignificance before the Council's 
 unbounded extension given to the Council's 
 direct judicial authority, through the growth 
 of the greatest institution produced by the 
 
94 The Privy Council. 
 
 fifteenth and sixteenth centuries, the ' Court of 
 Star Chamber 1 .' 
 
 Some tribunals have grown to a height of 
 power and influence, which endows them with 
 a species of terrific grandeur. The Inquisition, 
 the Revolutionary Committee of Public Safety, 
 all those institutions by which might has for a 
 period triumphed over right, together with the 
 horror they cause, inspire a peculiar kind of 
 interest. Every one abhors the great instru- 
 ment of oppression ; but every one feels a wish 
 to know by what measures it was formed, what 
 were the true sources of its strength, what the 
 Star uses to which its might was applied. Among 
 
 institutions at once powerful, hateful, and full of 
 interest, the ' Court of Star Chamber ' occupies 
 no mean position. If its influence was less ex- 
 tended than the sway of the Inquisition; if its 
 deeds lacked the bloody atrocity of the Revolu- 
 tionary Courts; it combined system of secrecy 
 in its acts which a Dominican might have ad- 
 mired, with a power of duration which might 
 have inspired the authors of the Parisian tribunals 
 with hopeless envy. For the Star Chamber was 
 no temporary court. During a hundred and 
 
 1 On the Star Chamber, vide : 
 
 Hallam's Const. Hist. (8th ed.), i. 47-56, 233-236; ii. 30- 
 
 35, 97, 9 8 > 331. 
 
 Hudson, Collectanea Juridica, ii. 
 Palgrave, ' The Authority of the King's Council.' 
 
The Privy Council. 95 
 
 fifty years its power penetrated into every 
 branch of English life. No rank was exalted 
 enough to defy its attacks, no insignificance 
 sufficiently obscure to escape its notice. It 
 terrified the men who had worsted the Armada; 
 it overshadowed the dignity of the judicial bench ; 
 it summoned before its tribunal the Prynnes and 
 the Cromwells, who at last proved its destroyers. 
 It fell at length, but great was the fall thereof, 
 and in its ruin was involved the downfall of the 
 monarchy. 
 
 It is with something of astonishment that the Its origin, 
 inquirer discovers that this august tribunal was 
 merely the Council under another name ; and 
 that the court, whose overgrown power the 
 patriots of 1640 cast to the ground, was the 
 same body whose early encroachments had 
 alarmed the parliamentary leaders under Edward 
 III and Richard II. The process by which the 
 judicial authority of the Council passed into the 
 form of the Court of Star Chamber admits of 
 some dispute, and is involved in no little ob- 
 scurity. No one at the present day need feel 
 ashamed to avow his ignorance, when he finds 
 that even in the time of James I, when the 
 Star Chamber was in full activity, men learned 
 in the law could dispute no less as to its origin 
 than as to its power ; that a Plowden was pro- 
 nounced in error, and that Hudson, the annalist 
 and eulogist of the Court for it possessed 
 
96 The Privy Council. 
 
 fervent admirers wrote his treatise principally 
 to dispel popular misconceptions which dimmed 
 the glory of his idol. The origin of the name is 
 itself shrouded in mystery. In the following 
 passage, Hudson unfolds at once the dignity of 
 the tribunal and the various derivations given 
 of its appellation : 
 
 ' Some think,' he writes, ' it is called a Crimen 
 Stellionatus, because it handleth such things, 
 and cases as are strange and unusual : some of 
 Stallen. I confess I am in that point a Platonist 
 in opinion, that nomina naturd fiunt potins quam 
 vaga impositione ; for assuredly Adam, before his 
 fall, was abundantly skilful in the nature of all 
 things ; so that when God brought him all things 
 to name, he gave them names befitting their 
 
 natures Camera Stellata . . . . is most aptly 
 
 named ; not because the Star Chamber, where the 
 Court is kept, is so adorned with stars gilded, 
 as some would have it ; for surely the Chamber 
 is so adorned, because it is the seal of that Court, 
 
 and it was so fitly called, because the stars 
 
 have no light but what is cast upon them from 
 the sun, by reflection, being his representative 
 body ; and as His Majesty himself was pleased 
 to say, when he sat there in his royal person, 
 representation must needs cease when the person 
 is present. So in the presence of his great 
 Majesty, the which is the sun of honour and glory, 
 the shining of those stars is put out, they not 
 
The Privy Council. 97 
 
 having any power to pronounce any sentence in 
 this court, for the judgment is the King's only 1 .' 
 
 Modern historians have paid little attention 
 to Hudson's courtly derivation, and have held 
 it nearly certain that the account of the name 
 which he rejects is the true one. The Court of 
 Star Chamber is, as may be seen from the 
 Records, the Council meeting in the ' Starred 
 Chamber,' that is, in all probability, in a room 
 the ceiling of which was adorned with stars. 
 The history of the name has some importance, 
 as an indication that the Star Chamber was the 
 Council exercising judicial powers. 
 
 The exact growth of these powers it is not 
 easy to trace. It is certain that from the time 
 of Henry VII the Council or Star Chamber 
 exercised a jurisdiction which, though bearing 
 some resemblance to, greatly exceeded its 
 exertions of authority at an earlier period. 
 Two accounts are given of the rise of this judicial Two 
 power. One refers it entirely to the statute 3 about it. 
 Henry VIII.^ 'The Act recites intra alia that, ' by 
 unlawful maintenances, giving of liveries, signs 
 and tokens, &c. ; untrue demeanings of sheriffs in 
 making of panels, and other untrue returns, by 
 taking of money, by juries, by great riots, and 
 unlawful assemblies, the policy and good rule of 
 this realm is almost subdued,' and enacts 'that 
 the Chancellor and Treasurer of England, and 
 
 1 Coll. Jur. ii. p. 8. 
 H 
 
98 The Privy Council. 
 
 Keeper of the King's Privy Seal, or two of them, 
 calling to them a Bishop, and a Temporal Lord of 
 the King's Council, and the two Chief Justices 
 of the King's Bench, and Common Place upon bill, 
 or petition, against any person for any behaviour 
 aforesaid, have authority to call before them, by 
 writs or privy seal, the said misdoers, and others 
 by whom the truth may be known, to examine 
 .... and punish them, according to their 
 demerits : after the form and effect of statutes 
 thereof made, in like manner and form as they 
 ought to be punished if they were thereof 
 convict after the due order of the law.' 
 
 The opinion that to this statute is due the 
 authority of the Star Chamber, is supported by 
 much apparent evidence. The act which is 
 recited in the preamble of 16 Car. I, cap. 10, is 
 entitled ' an Act giving the Court of Star Chamber 
 authority to punish divers misdemeanors V To it 
 Plowden referred the Court's origin. Despite, 
 however, this weight of proof, another and a truer 
 opinion has been maintained. Even in the days 
 of James I, it was the doctrine of Ellesmere as 
 stated by his admirer, Hudson 2 , that the juris- 
 diction of the Star Chamber was merely the 
 original jurisdiction of the King's Council. 
 Historical examination confirms the justice 
 of this view. That the powers given by the Act 
 
 J Statutes of the Kealm, vol. ii. p. 509. 
 2 Coll. Jur. ii. p. 51. 
 
The Privy Council. 99 
 
 3 Henry VII, cap. i, were exceeded, is stated 
 in 16 Car. I, cap. 10. but in fact Henry's statute 
 seems neither for good nor for bad to have 
 exerted influence over the growth of the Star 
 Chamber. The judges in that Court were the 
 whole of the Council. The crimes punished by 
 it consisted of many others than those enume- 
 rated in the Act. The penalties inflicted were 
 not those assigned by statute. 
 
 It is, indeed, worth remark, that the offences 
 enumerated in 3 Henry VII, cap. i, e. g. acts of 
 violence, resistance to justice, etc., belong exactly 
 to that class of crimes which the Council had 
 always claimed a right of suppressing. The 
 conjecture may therefore be made, that the real 
 scope of the Act was to regulate an authority 
 which Parliament felt to be at once necessary 
 and dangerous. The special Court thus estab- 
 lished was in existence as late as 1529 1 . But 
 soon afterwards its powers merged in the 
 general authority of the Council, or Star 
 Chamber. That this should have happened is 
 less strange than it at first appears. All the 
 business of the Council was transacted through 
 committees, which were, as occasion required, 
 differently modelled. The same persons sat, as 
 may be seen by the regulations of 1553, on 
 different commissions. Now the body consti- 
 tuted by 3 Henry VII, cap. i, was essentially a 
 
 1 Hallam, Const. Hist. (8th. ed.), i. p. 53. 
 H 3 
 
ioo The Privy Council. 
 
 committee of the Council, of which the members 
 had no permanence. It was not unnatural that 
 the functions of different committees should 
 have been interchanged, and to some extent 
 confused. Whatever may have been the cause 
 of the change, it is at least well established 
 that towards the close of Henry VJII's reign 
 the special commission created in 1488^ no longer 
 existed ; that powers much wider than those 
 conferred by statute were exercised by the Star 
 Chamber; and that this Court, consisting 
 mainly of Councillors, may without inaccuracy 
 be identified with the Council. 
 
 Its consti- Hudson's treatise affords a means of forming 
 a conception of the Council's constitution, powers, 
 and action, as a law court. His sketch, which 
 describes the Star Chamber with full accuracy 
 as it flourished under James I, may not in 
 every detail apply to it as it rose into greatness 
 under the Tudors. The extent to which its 
 character changed during the century cannot be 
 ascertained. What alteration there was had 
 probably tended to make it more of a law court 
 and less of a Council ; and a trace of this change 
 is seen in the regulation of 1553, which creates 
 a committee ' for hearing those suits which were 
 wont to be sent to the whole board.' It stood, 
 when Hudson wrote, in a position not altogether 
 unlike that occupied by the Court of Chancery 
 before the reign of Richard II, and it is possible 
 
The Privy Council. > , ,\\ i ibi 
 
 (though the course of events under Charles I 
 does not favour the supposition) that the Star 
 Chamber, if its existence had not been cut short, 
 might have ultimately become a Court as dis- 
 tinct from the Council as was the Chancery. 
 
 One reason why this never happened is to be Presidency 
 found in a peculiar feature of the Star Chamber's p ers on. g " 
 constitution, the frequent presidency of the 
 King in person. The legal fiction that the King 
 is present personally in all his courts, was here 
 carried into act. In this respect, as in many 
 others, the rule of the Tudors and Stuarts 
 concealed revolution under the mask of restora- 
 tion. For in the ancient ' Curia Regis ' the King 
 did actually preside, and the Star Chamber was 
 in more points than one the ' Aula Regia ' revived. 
 In the royal presence ' no one,' writes Hudson, 
 ' had any power to pronounce sentence ; for the 
 judgement is the King's only; but by way of 
 advice the Councillors deliver their opinion, 
 which he increaseth, or moderateth, at his royal 
 pleasure.' The part taken by the King was no 
 empty formality. On one occasion James pre- 
 sided for five days, ' seated on a chair high above 
 the rest,' and terminated the case by pronounc- 
 ing a sentence, of which, if the annalist is to 
 be believed, the wisdom surpassed that of 
 any judgment before uttered from an English 
 tribunal. 
 
 Even when the King was absent, the Court 
 
Privy Council. 
 
 lacked nothing in dignity. Thrice a week in 
 term time, and occasionally out of term time, 
 it transacted business. At its head sat the Lord 
 Chancellor. Councillors, as well as nobles not 
 of the Council, were its judges. Its numbers, 
 including many bishops, amounted at times to 
 forty persons. In the reign of Elizabeth, peers, 
 not Privy Councillors, desisted from attendance, 
 and the number of the Court was lessened ; 
 though in later reigns as many as twenty-five 
 Councillors sometimes attended. From the 
 lowest to the highest, each man gave sentence in 
 order, till the voice of the Lord Chancellor 
 proclaimed the judgment of the Court 1 . 
 
 Process. It was not, however, the dignity of the judges 
 which imparted to the Star Chamber its terrors, 
 but rather its manner of procedure. The Coun- 
 cil acted in one of two modes. The most 
 
 'Ore summary was the proceeding ore tenus. On 
 the reception of a charge by the Council one 
 grounded, it might be, on 'common report,' or 
 on secret information, the accused person was 
 privately arrested, and brought before the 
 Council Board. There he was examined. If he 
 confessed, or made admissions considered equi- 
 
 1 It is a curious example of the Court's dignity, that after the 
 day's labour it dined at the public expense, and that the cost of 
 these banquets was, if the altered value of money be taken into 
 account, considerable: e.g. in 1559, the ordinary charge of 
 a dinner was 4 los. to 5 93.; in 1579, 8 to 10; in 1590, 
 17 toi8. 
 
The Privy Council. 103 
 
 valent to a confession, he was condemned ex ore 
 suo, and judgment was given against him. He 
 knew neither his accuser nor the crime of which 
 he was accused, and he was subjected to an 
 examination which, as even Hudson admits, was 
 conducted with scanty fairness to the prisoner. 
 He might, indeed, refuse either to confess or to 
 answer any questions. If so, he was not 
 condemned, but remanded to prison, that the 
 Council might adopt another course. 
 
 This, the second mode of prosecution, was to By bill, 
 proceed by bill. A bill of complaint was 
 addressed to the Council, signed by a Councillor. 
 When the bill was filed, or in some cases even 
 before its filing, the accused was summoned by 
 a writ of subpoena. On his appearance the 
 defendant was bound to answer on oath the 
 plaintiff's bill. If he refused to make a reply, 
 he was committed to prison ; and, after some 
 delay, his crime was treated as acknowledged. 
 If he put in an answer, his case was not much 
 better; he was examined by the plaintiff on 
 written interrogatories, a refusal to reply to any 
 of which led to imprisonment of indefinite and 
 sometimes life-long duration. After the plain- 
 tiff's examination, witnesses, whose character the 
 accused was not allowed to shake, were privately 
 examined. The cause was then ready for deter- 
 mination, and after, it might be, a long delay, 
 sentence was given. 
 
IO4 The Privy Council. 
 
 Penalties. The punishments which followed were of the 
 most arbitrary character. Death was the only 
 penalty the court dared not enforce. Fines, 
 whipping, the stocks, the pillory, scourging, 
 branding, were some among the long list of pun- 
 ishments. Sometimes a punishment appointed by 
 statute, at times a penalty greater than any law 
 warranted, was inflicted. Mere caprice would 
 either lighten or aggravate the punishment. 
 Abject submission was the best road to the 
 Council's favour. Sometimes the crime itself 
 suggested an appropriate recompense. There is 
 a species of savage humour in the sentence that 
 a man who objected on religious grounds to eat 
 swine's flesh should be imprisoned, and fed on 
 no meat but pork. 
 
 The Council's manner of proceeding was unlike 
 that of other courts.' Its punishments were as 
 arbitrary as they were severe ; it also exercised 
 a power peculiar to itself of extorting confession 
 by torture. Some, however, may imagine that 
 powers so great were only occasionally exercised 
 that exceptional exertions of authority were 
 employed to meet exceptional crimes, and that 
 gigantic force was put forth to crush gigantic 
 evils. Some circumstances have given currency 
 to such a notion. Everybody has heard of one or 
 two great displays of the Council's powers, which 
 have become matters of history. On the other 
 hand, the cases where it interfered with the 
 
The Privy Council. 105 
 
 minor crimes, and the lesser concerns of life, 
 have been for the most part forgotten. Yet no 
 conception of the Star Chamber is more false 
 than that which makes it a ' deus ex machina,' 
 which intervened only when the lower courts of 
 justice stood confronted by some criminal at- 
 tempt with which they were too weak to deal. 
 The sphere of the Council's jurisdiction was its sphere 
 unlimited. It is now no question of what it had 
 a right to do, but of what it did. And any one 
 who examines the most certain facts of history 
 will be convinced that from the accession of 
 Henry VII till the meeting of the Long 
 Parliament the Council interfered in all matters, 
 small as well as great. It is, indeed, perhaps 
 not generally known, that crimes of a very 
 ordinary nature, such as would now come before 
 a police magistrate, occupied the attention of 
 the Star Chamber. Charges of robbery, 
 murder, sheep stealing, theft ; as, for example, of 
 purloining the ' Queen's standish 1 ,' were inves- 
 tigated by Councillors. To give a complete 
 analysis of the classes of offences punished by 
 the Star Chamber is, from the nature of the case, 
 impossible. All the misdemeanors which the 
 statute 3 Hen. VII, cap. i , enumerates, and many 
 others, e. g. fraud, perjury, libel, disputes about 
 civil rights, were brought before its bar. A few 
 examples of offences actually punished may give 
 
 1 Vide Jardine's Readings on Torture. Passim. 
 
106 The Privy Council. 
 
 some idea of its jurisdiction. These are taken 
 with equal propriety from the annals of the 
 Council or the records of the Star Chamber. 
 For it is impossible to draw any precise line 
 between those offences which the Council 
 punished, acting as a government, and those 
 which it noticed in the character of a law court ; 
 and such a distinction, could it be made, would 
 only mislead, for it would hide what is the 
 characteristic feature of the period under review, 
 the inseparable combination in the Council of 
 political and judicial authority. 
 
 Whenever accusations of treason or sedition 
 were preferred, the Council lent a ready ear to 
 the accuser. Modern notions, however, of what 
 is treasonable or seditious give a feeble con- 
 ception of the meaning attached to these terms 
 in the sixteenth century. Not acts alone, but 
 slight expressions aroused the government's 
 vigilance. Mr. Swynerton of Swyneshead was 
 brought, in 1540, before the Council for ex- 
 claiming 1 , ' O, Jesus, what a world this is, that so 
 many men should die for one man's sake!' A 
 parson was reported to have said, that ' he knew 
 one or two persons who bore the King no good 
 heart V Forth with his accusers were summoned, 
 and strictly examined. It was not the insignifi- 
 cant alone who came as criminals before the 
 
 1 Proceedings of Privy Council, vii. 31. 
 
 2 Ibid. vii. 237. 
 
The Privy Council. 107 
 
 Council. Sir Thomas Cheney was himself a 
 Councillor, Warden of the Cinque Ports, and 
 Treasurer of the King's Council. At the accu- 
 sation, however, of his own son, he was examined 
 by his fellow Councillors, on the charge of 
 treason. The accusation fell to the ground, 
 and the Council, arbitrary in its very jus- 
 tice, committed the son to the Tower 'for an 
 example.' 
 
 Acts of this sort are rather proceedings of a 
 despotic government than of a law court; but 
 closely connected with them is the correction of 
 a class of offences over which the judicial au- 
 thority of ' the Council in the Star Chamber ' 
 was so exercised as to influence considerably a 
 branch of modern law. The body which took 
 notice of slight expressions was inevitably led to 
 punish the crime of libel ; and thus it is under 
 shadow of the Star Chamber that originally 
 grew up the laws affecting that offence. Hudson 
 presents examples of the Star Chamber's pro- 
 ceedings with respect to libels T . The personation 
 of Lord Lincoln on the stage, a coarse joke at 
 one Holes were punished as libellous. Under 
 the same offence was brought a letter (not 
 published), sent to the Bishop of St. Asaph. 
 
 A tribunal as watchful as the Council was not Control of 
 likely to neglect the control of the press. The 
 instrument for expressing public opinion was 
 
 1 Coll. Jur. ii. 100. 
 
io8 The Privy Council. 
 
 rising into influence during the reign of Henry 
 VIII, and the last volume of the Council's records 
 gives proof of the jealousy with which the new 
 power was viewed. The minutes contain lengthy 
 inquiries concerning publications by Grafton. 
 This printer was already before the Council, 
 on the charge of publishing certain ' invectives/ 
 when, by his own confession, he was found to 
 have in his possession ' a certain seditious epistle, 
 in the English tongue, by Melancthon 1 .' He was 
 committed to prison, and, with some other 
 persons concerned in the publication of the 
 pamphlet, let remain in the Fleet. These are 
 some of the Council's early proceedings in its 
 office of censor of the press. By degrees the 
 Star Chamber became more and more of a 
 regular censorship. In 1585 2 , at the instigation 
 of Whitgift, a proclamation was issued for the 
 full regulation of the press ; the whole printing 
 trade was put under the superintendence of the 
 Stationers' Company. Nothing was to be 
 published which had not passed under the in- 
 spection of the Bishops. The Guild to which 
 the control of the printing trade had been com- 
 mitted was empowered to search houses, in order 
 to destroy books published in contravention of 
 this ordinance, and to bring all offenders before 
 the Council. From this time the supervision of 
 
 1 Proceedings of Privy Council, vii. p. 106. 
 
 2 Hallam's Const. Hist. (8th ed.), i. 239. 
 
The Privy Council. 109 
 
 the press became a regular part of the Star 
 Chamber's duties. It, however, requires the less 
 notice because it has been rendered famous by 
 the treatment of Prynne. In the ordinance 
 regulating the press is seen a specimen of the 
 force given by the Council to proclamations. 
 This example alone would sufficiently prove the 
 truth of Hudson's assertion, that the Star Chamber 
 ' stretched proclamations as far as Act of Parlia- 
 ment ever did.' 
 
 Besides asserting the right to act in almost 
 every case where a law court could interfere, 
 the King and his Councillors avowedly acted 
 in cases not examinable in other courts 2 . Of 
 these cases the breach of mere proclamations 
 was one, but it was only one out of a thou- 
 sand. For the Council had arrogated and ex- 
 ercised an authority not unlike that of a 
 censor. The spirit of the age during the six- 
 teenth century was one of interference. In Interfer- 
 affairs of religion, in questions of labour, in 
 matters of private life, the government inter- 
 meddled. It is probable that popular feeling 
 invited its intervention. The fact that govern- 
 ment interference is an evil is now too well 
 established to need the confirmation of further 
 arguments. It is, however, by no means clear 
 that the baneful activity of rulers is gener- 
 ally unpopular. It was not so in the reign of 
 Henry VIII, or of his son. Among the latter's 
 
no The Privy Council. 
 
 remains 1 is found a curious illustration of the 
 sentiments of his time. In a paper on govern- 
 ment he has given his notion of the measures 
 needed for the ' reformation of various abuses.' 
 The essay, which exhibits neither originality 
 nor talent, is valuable precisely because it gives 
 the very ordinary thoughts of an ordinary man, 
 and therefore represents the theories of the 
 age. From beginning to end it is an eulogy of a 
 'paternal government,' and alludes, with approval, 
 to encroachments on private rights, before which 
 the Cabinets of Vienna, or of St. Petersburg, 
 would now stand aghast. The young King had 
 learnt to think that this country could bear no 
 merchants to have more land than a hundred 
 pounds, no husbandman or farmer worth above a 
 hundred, or two hundred pounds, no labourer 
 much more than he spendeth 2 . The paper abounds 
 with theories of this description, accompanied 
 by the notion that a ruler's duty is to reduce 
 such speculative opinions to practice. When 
 these were the lessons inculcated on a youthful 
 monarch by his aged instructors, a part at least 
 of the nation must have looked with favour on 
 the interference of government in the affairs of 
 private life. The Council took full advantage 
 of the prevalent feeling. It interfered (to use a 
 
 1 Vide Burnet's Reformation (Clarendon Press ed. 1865), vol. 
 v. p. 96. 
 a Ibid. p. 98. 
 
The Privy Council. 1 1 1 
 
 modern phrase), 'in the interests of morality,' 
 whenever either individuals or classes acted in 
 a way which the law could not punish, but which 
 moral feeling condemned. The minutes of the 
 Star Chamber are crowded with punishments for 
 attempts to commit crimes, for buying up commo- 
 dities, and the like. In one instance is recorded 
 the strange offence for which a woman is severely 
 punished, of ' practising to have her husband 
 whipped 1 .' This punishment is rendered the 
 more strange by the discovery that the injured 
 husband was dead, and that his father performed 
 the part of prosecutor. From the same desire to 
 check any act which was thought to be ' contra 
 bonos mores,' springs much of the Council's 
 intervention in private disputes. Thus, when 
 John Bulmer and his wife quarrelled, the Council 
 at the wife's complaint 2 ordered the husband to 
 make her an allowance of forty marks yearly, 
 and let her dwell one year's time in her brother's 
 house. Even at the end of the year Bulmer was 
 not to be released from the payment of the 
 allowance, unless 'he should resort to his wife, 
 and use her after such a sort as it behoveth an 
 honest man to use his wife/ 
 
 The Councillors at times composed the feuds 
 of neighbours ; and amidst more weighty matters, 
 found time ' to set at one and make friends Sir 
 J. Dene and T. Halcroft ; ' and on the same day 
 
 1 Coll. Jur. ii. 108. 
 
 2 Proceedings of Privy Council, vii. 321, 322. 
 
1 1 2 The Privy Coimcil. 
 
 to arrange the quarrels of David Vincent and 
 R. Cecill, on which occasion the dispute was 
 settled by giving Vincent ' an honest monition ' 
 for his fault, with the advice to the two foes 
 ' to be friends.' No more than a few samples of 
 the Council's system of interference can be given. 
 Its measures to protect game, its summary orders, 
 on one of the King's journeys, that corporations 
 should pay their debts 1 ; its proclamations, by 
 which the people of York were induced to bring 
 their grievances before the King, and the tyranny 
 with which those who did complain were pun- 
 ished 2 , can be allowed but a passing allusion. 
 Control of Some points, however, demand, from their 
 Courts. importance, more particular notice. Among 
 these stands preeminent the means at the 
 Council's disposal for influencing the law courts. 
 These were various. In some instances the King 
 transferred to the Star Chamber cases on which 
 the courts were about to pronounce a decision. 
 When this was done, it wanted but one more 
 step for the King, as the phrase went, 'to take 
 the matter into his own hands/ and, if he chose, 
 pardon the offence, generally after a receipt of a 
 large sum of money. Instances abound in Henry 
 VII's reign, where criminals escaped justice by 
 bribing the monarch. Entries in the minutes, 
 such as 'the Earl of Derby, for his pardon, 
 j6,ooo;' 'for the pardon of William Harper, 
 
 1 Proceedings of Privy Council, vii. 242. a Ibid, vii, 246. 
 
The Privy Council. 113 
 
 for treasons, felonies, escapes, and other offences, 
 200 marks;' which occur frequently in the Star 
 Chamber's records, tell their own tale. Even if 
 a pardon was not obtained, it was at times an 
 advantage to be tried in the King's own court. 
 A murder, for example, if put on trial in the 
 Star Chamber, since it was not within the 
 Council's competence to inflict death, was sure 
 to escape with a penalty less than that which 
 the law assigned. An instrument by which the 
 Crown weighed down the freedom of the courts 
 was by summoning juries before the Council, 
 to account for their verdict. They were, indeed, 
 at liberty to give a true verdict, according to the 
 evidence, but it was well for them if their view 
 of truth coincided with the opinion of the 
 government; for, if otherwise, they were liable 
 to be taught their duties by a summons before 
 the Star Chamber, and a summons which fre- 
 quently was followed by fines, and by imprison- 
 ment. 'I have seen, in my time,' writes the 
 author of the Treatise on the Commonwealth 1 , 
 ' that an inquest, for pronouncing not guilty of 
 treason, contrary to such evidence as was brought 
 in, were not only imprisoned for a space, but a 
 large fine set on their heads, which they were 
 feign to pay.' This statement places beyond a 
 doubt the fact that juries were punished for their 
 
 1 Commonwealth of England, book iii. cap. I. Hallam's 
 Const. Hist. (8th ed.), i. 49. 
 
 1 
 
H4 The Privy Council. 
 
 verdict, and raises the suspicion that of the 
 'forty jurymen convicted within a year of 
 perjury,' mentioned by Hudson, some were as 
 much martyrs to love of justice as perjurers. 
 Eight of it was not always to oppose the law courts 
 
 inflicting . . 
 
 torture. that the Council put forth its powers. It 
 sometimes gave them help, but it was aid 
 of a peculiar kind. The law of England has 
 always forbidden the use of tortures. Numerous 
 lawyers have pronounced it illegal. Yet there 
 is the most abundant proof that torture was 
 used in England till I64O 1 . The only body who 
 employed it were the Councillors, and they 
 were always ready to do for the law courts 
 what the judges dared not do for themselves. 
 Whenever a great crime had been committed, 
 the Council did its best to force out truth 
 by the rack- A long list of cases shows, that 
 to inflict tortures was the daily habit of the 
 Crown's advisers. The names of Anne Askew 
 and Guy Fawkes recall the best known examples 
 of the employment of torture in obedience to 
 a royal order. Repulsive as this exercise of the 
 Crown's authority sounds to modern ears, it was 
 not considered strictly illegal. Sir Thomas 
 Smith, who denounces the use of torture, was 
 himself present at its employment ; and this 
 circumstance, combined with some others, is 
 a valid proof that to torture subjects was in the 
 
 1 Gardiner, Hist, of Eng. ix. 141. 
 
The Privy Council. 115 
 
 sixteenth century held to be a prerogative of the 
 Crown. This privilege, if so it can be called, 
 throws some obscurity over particular branches 
 of the Council's judicial action, since it renders 
 it doubtful whether some minor crimes were 
 brought to the Star Chamber for trial, and not 
 rather for examination. Various royal orders 
 testify to the readiness with which the King 
 ordered the employment of the rack ; and a more 
 indelible proof of this than written mandates 
 can afford, is to be found on the stones of a 
 dungeon, within the Tower, where those who 
 care may still read how 
 
 4 Thomas Miagh which lieth here alone, 
 That fayne wolde from hens begon, 
 By torture strange my trouth was tryed, 
 Yet of my libertie denied. 
 
 1581, THOMAS MIAGH V 
 
 Yet if the rigl ' to inflict agony was the most 
 fearful, it was far from being the most dangerous 
 privilege of royalty which was exercised by the 
 Star Chamber. This court, not content with Civil suits. 
 criminal jurisdiction, attempted to interfere 
 with the rights of property. Its endeavours 
 were, as may be seen from examples in the 
 Council's Eecords 2 , at first successful. Never- 
 theless, for some reason which does not seem to 
 be entirely explained, it paid less and less 
 
 1 Jardine Eeading on the Use of Torture, p. 30. 
 
 2 Proceedings of Privy Council, vii. 58, 214, 276. 
 
 I 1 
 
1 1 6 The Privy Council. 
 
 attention to civil suits, until under Charles I an 
 attempt was made to revise the jurisdiction in 
 civil causes. 
 
 The Councillors, in addition to the authority 
 which they claimed as members of a powerful 
 court, assumed to themselves a further right of a 
 Council- most oppressive nature. They pretended, not 
 to arrest, merely collectively as the Council, but in- 
 dividually as Councillors, to possess the privi- 
 lege of arresting their fellow- citizens. The 
 ultimate defence of such an arrest would have 
 been, it must be supposed, the plea of obedience 
 to a royal command. Nevertheless, the Coun- 
 cillors claimed (though doubtless under responsi- 
 bility to the Crown) to act in this matter on 
 their own judgment. Their claim is itself 
 sufficiently strange, but it is stranger still to 
 find, that to some extent the Judges admitted its 
 validity, at least as regards the Council collec- 
 tively. 'We think,' say the Judges of 1,591, in 
 a formal document drawn up as a protest 
 against illegal commitments, ' that if any person 
 shall be committed by Her Majesty's special com- 
 mandment, or by order from the Council board, 
 or for treason touching Her Majesty's person, 
 
 which causes being generally returned 
 
 into any court is good cause, for the same court 
 to leave the person committed in custody V 
 Some of the main features of the ' government 
 
 1 Hallam's Const. Hist. (8th ed.), vol. i. 236. 
 
The Privy Council. 117 
 
 by Councils,' as it existed under the Tudors, General 
 
 review of 
 
 have now been roughly sketched. It is worth Council's 
 while to cast back a glance at the general ^^~ 
 picture presented. For it is only when looked 
 at as a whole that the strangeness of the system 
 can be comprehended. The Council stands 
 forth, as at the same moment, powerless and 
 powerful. In its dealings with the Crown it is 
 utterly weak, for it has lost every element 
 of independence. In its dealings with the 
 people it is irresistibly strong, for it combines 
 every element of authority. The ablest adminis- 
 trators of the day are its members. The political 
 powers which it exercised in the fifteenth century 
 remain (except in reference to the King) unim- 
 paired, and to these powers has been added all 
 the authority of a law court, and nearly all the 
 influence of a legislative assembly. Above all, 
 the whole body is subject to one head. The 
 King is all in all : and the Tudor princes were 
 exactly the chiefs which the Council required ; 
 for, with many faults, they combined an appre- 
 ciation of talent which made them appoint able 
 Ministers, with a love for business, which 
 enabled them to keep in motion the cumbersome 
 machinery of government, of which they them- 
 selves were the creators. 
 
 It is at this point of history that the question How far 
 is most fairly asked, did the scheme of govern- beneficial ? 
 ment, of which the Council was the embodiment, 
 
n8 The Privy Council. 
 
 prove truly successful? To put the same in- 
 quiry in another form, were the great powers, 
 centred in the hands of the executive government, 
 exercised for the national benefit ? The answer 
 to these questions, if it is to be a true one, must 
 be to some extent undecided. The Council's 
 rule had great merits. It gave a splendid field 
 for the exercise of administrative ability. The 
 rule of Henry VIII and Elizabeth afforded to a 
 greater extent than any other English govern- 
 ment, a noble career for men of talent. Their 
 strong rule conferred great benefit on the 
 nation. It carried the country with success 
 through both a religious and a social crisis. It 
 brought about, moreover, a century of more 
 profound internal peace than England had ever 
 before enjoyed. These blessings, however, were 
 Under the counterbalanced by gigantic evils. The rule of 
 mixed. the Tudors was in the main a selflshr- rule. 
 Where the interests of the Crown and of the 
 people coincided the government acted with 
 patriotism. Where they differed, everything 
 was sacrificed to the interest of the King. 
 Great Ministers were promoted; yet Cromwell, 
 the greatest of them all, was judicially murdered. 
 Law was enforced; but law itself was made, 
 under Henry VII, a means of sordid gain, and 
 under his son, of despotic power. The Church 
 was purified, but it was also plundered. Even 
 under Elizabeth, members of the Council were 
 
The Privy Council. 119 
 
 guilty of shameless rapacity. Cecil and Hatton 
 grew rich on Church spoils, and bishoprics 
 were left unfilled, that courtiers or the Crown 
 might appropriate the proceeds of the see. If order 
 was restored, liberty was destroyed. The courts 
 were subservient, and the Council overawed the 
 feeble independence of the courts. The system 
 of government, founded by Henry VII, was 
 tottering to its fall ere his granddaughter's death ; 
 and those, if any there be, who regret the 
 decline of the Council's power, may see in the 
 petition of Elizabeth's judges the description of 
 the tyranny which that power entailed. ' We 
 beg,' say the guardians of justice, * that Her 
 Majesty's subjects be not committed or detained 
 in prison, by the command of any nobleman 
 or Councillor, against the laws of the realm, 
 to the grievous charge and oppression of Her 
 Majesty's said subjects. Some parties so com- 
 mitted, after they had been lawfully discharged 
 in court, have been soon recommitted to prison, 
 in secret places, so as upon enquiry the Queen's 
 court cannot learn to whom to award Her 
 Majesty's writ, without which justice cannot 
 be done 1 .' 
 
 In the celebrated statute 16 Car. I, cap. 10, 
 (1640), it is placed on record, that 'the reasons 
 and motives for the erection of the Court of Star 
 Chamber do now cease/ This assertion might 
 
 1 Hallam's Const. Hist. (8th ed.), i. p. 224. 
 
I2O The Privy Council. 
 
 with truth have been given a much wider ex- 
 tension, for it applied as much to the whole 
 system of administration, which had existed for a 
 hundred and fifty years, as to the Star Chamber, 
 which was only the most prominent part of a 
 closely connected body of institutions. From 
 the moment when James ascended the throne, a 
 revolution of one kind or another was inevitable. 
 * With the last of the Tudors ought to have 
 expired the Tudor system of government. Nom- 
 inally it survived, for in form the Council 
 of James and Charles was like that of Elizabeth. 
 Since, before her death, had taken place one 
 change in its internal constitution, by which 
 Cecil had passed from mere Secretary into 
 Secretary of State. The alteration of title is of 
 no moment in itself, but has importance as being 
 the official recognition of the place occupied by 
 a Minister, whose duties were undefined, and 
 who had, in early times, no seat at the Council 
 board. Nevertheless, the Tudors' system, was, 
 Under the jf no fc d eac l a t least dying. The Stuarts might 
 
 Stuarts it J 
 
 failed. have ruled with more skill. They might have 
 been the leaders of a reform, instead of becoming 
 the victims of a revolution. No policy, however, 
 could have long averted some alteration in the 
 government. 
 
 The stronghold of the preceding race of 
 monarchs had been the Council; that is, the 
 combination of all the powers of the state in the 
 
The Privy Coimcil. 121 
 
 hands of a considerable number of Ministers. 
 In 1603, this system was already doomed, for 
 the state of things which produced it had passed 
 away. The country, which in 1485 was ex- 
 hausted by wars, was at the beginning of the 
 seventeenth century restored to vigour and 
 prosperity, through a long peace. The anarchy, 
 which Henry VII reduced to order, had given 
 place to a spirit of tranquillity and repose. The 
 law courts were sufficiently strong to perform 
 their duties, and had more reason to dread than 
 to court the aid of the executive. No danger of 
 foreign invasion, or peril from domestic con- 
 spirators, made a strong government a national 
 want. For the Gunpowder Plot marked rather 
 the weakness than the strength of the Roman 
 Catholics, and in the difference between the 
 ' Pilgrimage of Grace,' under the leadership of 
 nobles, and the November conspiracy, planned 
 by insignificant country gentlemen, and carried 
 out by assassins, may be seen the whole interval 
 which separated the Catholic party under 
 Henry VIII from the Papistical conspirators 
 under James I. At the precise moment when Superseded 
 the Council's extraordinary powers became use- meat. 
 less, they were overshadowed by the growth of 
 Parliament. Government by Parliament and 
 government by the Star Chamber were incom- 
 patible, though, perhaps, no one perceived them 
 to be so, at the time of James's accession. 
 
122 The Privy Council. 
 
 Moreover, the rule of the Council had never 
 been undisputed. The lawyers of England 
 have in modern times delayed many reforms; 
 but the country owes them a debt of gratitude 
 for their protests in past ages against arbitrary 
 power. From them came the unceasing / com- 
 plaints of the Star Chamber's jurisdiction, of 
 which the petition of the Judges in 1591 is an 
 example. Under theories about the Star Cham- 
 ber's origin, lay concealed a protest against its 
 , power. When Plowden asserted the Court's 
 authority to be grounded on the statute of Henry 
 VII, he gave currency to an historical error ; 
 but in doing so enunciated the political truth, 
 that the Star Chamber's powers, if they did 
 not rest on the Act 3 Henry VII, cap. i, were 
 founded not on law, but on unconstitutional 
 encroachments of the Crown. Another pre- 
 valent opinion among lawyers was that (to use 
 Hudson's words) 'the Star Chamber was no 
 settled ordinary court of judicature, but only 
 an assembly for consultation at the King's 
 command, upon some urgent occasions, in cases 
 where all other courts want power, for want 
 of law to warrant them, and have no weight 
 sufficient to poize the question.' This view 
 nearly represents the historical facts of the 
 case, and as surely as the theory of Plowden 
 contains a protest against the Court's unconsti- 
 tutional power. 
 
The Privy Council. 123 
 
 It was not the opposition of lawyers, the 
 change of popular feeling, or the growth of Par- 
 liament alone, which necessitated a change in 
 the system of government. The Council was And 
 
 having 
 
 becoming unequal to its work. At the best it become 
 had been a clumsy instrument in the hands of J^^rk. 
 the King. The Tudors had worked it, but not 
 without difficulty. New requirements arose, 
 and the Council was not a body fitted to meet 
 them. Chief among these was the need of a 
 regular army. In earlier times the necessity had 
 not existed. But by the beginning of the reign 
 of Charles I, it must have been evident to keen 
 observers that it was impossible much longer to 
 stave off the formation of a regular army ; that 
 when one was created, either the King or the 
 Parliament must extend their power ; and that 
 whether the authority of the Crown or the 
 liberties of the people were augmented, the form 
 of government which had hitherto existed must 
 come to an end. 
 
 The period, therefore, between the death of Decline 
 Elizabeth and the Restoration, may be considered Council's 
 as the time during which ' Government by Coun- real P wer - 
 cils * fell. It is an apparent contradiction to 
 this view, to assert that the Council's powers 
 were never stretched so far as under James and 
 his son. Nevertheless, both the assertion and 
 the theory are true and consistent. The Council 
 put forth all its powers during the reigns of the 
 
124 The Privy Council. 
 
 first two Stuarts, but these exertions of authority 
 were signs of death. The Stuart kings acted, 
 not with the consciousness of undisputed sway 
 which distinguished Henry VIII, but under a 
 strong, though it may be unconscious feeling, 
 that their power was in danger and needed to 
 be increased, if it was not to be lessened. Hence 
 all the acts of their government are stamped with 
 the impress of innovation. Few men perceived 
 the true state of affairs, least of all Charles or 
 his father. Stafford alone saw how matters 
 really stood; and it is this clearness of view 
 which gives to his policy of ' Thorough ' a con- 
 sistency which the Stuarts' other acts of tyranny 
 want. 
 
 Tnou gk to an observer of a later age it appears 
 time. manifest that from the time of James's accession 
 the Council's struggles were the agonies of death, 
 to an ordinary Englishman, living in 1603, it 
 must have seemed far otherwise ; for year by 
 year the government's activity redoubled. James 
 not only talked of the prerogative in language 
 which Elizabeth would have felt to be unseemly, 
 but wherever he could he carried out his theories 
 into act. He, for instance, resumed the custom 
 of the King's presiding at the Star Chamber's 
 sessions a habit which was as easily defended 
 in theory as it was oppressive in practice. He 
 levied customs without the assent of Parliament. 
 He immensely stretched the force of proclam- 
 
The Privy Council. 125 
 
 ations. By these edicts he prohibited the manu- 
 facture of starch from wheat, and the erection 
 of new buildings in London, whilst he also 
 issued a decree that country gentlemen should 
 at once leave town and return to their estates. 
 The terrors of the Star Chamber were given full 
 swing. Whitelock came before its bar charged 
 with privately advising a client that a certain 
 proclamation was illegal. A Mr. Fuller was 
 imprisoned for life because he sued for a writ of 
 Habeas Corpus for two Puritans, committed by 
 the Court of High Commission. Selden was 
 brought before the Council for the crime of 
 publishing, in his History of Tithes, opinions 
 offensive to High Church prelates. The use of 
 torture was kept up, as is shown by the case of 
 Peacham. Meanwhile, in reality, the Council's 
 power declined. If the King talked in a new 
 strain about the prerogative, the Parliament 
 assumed a new tone about its privileges. As 
 certainly as each Parliament met, so regularly 
 the illegal acts of the Crown were denounced. 
 Had James been able to dispense with Parlia- 
 ments, the old system of government might have 
 been for some time longer preserved. If he had 
 held Parliaments, and kept within the law, the 
 Council might have passed through a gradual 
 process of change. He did neither. The 
 Treasury was empty. The Tudors had gained 
 little by having plundered the Church, for before 
 
126 The Privy Council. 
 
 James's accession the plunder was spent. More- 
 over, the old sources of revenue from the feudal 
 rights were running dry. Hence,' James was 
 driven to Parliament ; but he had not the 
 vigour to rule legally, and his whole reign was 
 a series of encroachments which were checked, 
 and of acts of tyranny, even more useless than 
 oppressive. One circumstance sufficiently shows 
 the great though silent crisis through which the 
 country was passing. In 1614, James attempted 
 to manage the Parliament. It took no great 
 acuteness to foresee that the assembly which the 
 Crown found it necessary to cajole was on the 
 point of becoming the sovereign power of the 
 Silent state. A revolution, it was manifest, drew near ; 
 nevertheless, the plan of ruling by the Council 
 lasted out James's time, and when in 1625 
 Charles mounted the throne, the Council was 
 still an assembly with the same powers and the 
 same constitution as it had possessed in 1603. 
 
 A \J 
 
 A general review of Charles's reign has no 
 place in the present essay. The period was one 
 in which the Crown attempted a revolution, and 
 dreamed it was carrying out a reaction. Hence 
 the Council of Charles I was probably, in 
 appearance, more like the Councils of the mon- 
 archs before Henry VIII than any which had 
 existed since 1509. This resemblance was pro- 
 duced by the prominent position given to the 
 Bishops, and by the number of nobles summoned 
 
The Privy Council. 127 
 
 to the board. The following list of Charles's Li8 * of 
 
 Members 
 
 Council in 1630, though it is imperfect, from in 1630. 
 only giving the names of Councillor. who at- 
 tended on two particular days, throws some 
 light on the character of the King's advisers *. 
 
 Sir Th. Coventry (The Lord Viscount Wimbledon. 
 
 Keeper). Viscount Dorchester. 
 
 Lord Weston (Lord Treasurer). Viscount Falkland. 
 
 Earl of Pembroke (Lord Cham- Viscount Grandison. 
 
 berlain). Lord Newburgh. 
 
 Earl of Manchester (Lord Privy Bp. of London (Laud). 
 
 Seal). Sir T. Edmunds (Mr. Trea- 
 Earl of Bridgewater. surer). 
 
 Earl of Danby. Sir H. May (Mr. Vice-Cham- 
 Earl of Kelley. berlain). 
 
 Earl of Arundel (Earl Marshal). Mr. Secretary Coke. 
 
 This catalogue is suggestive. It exhibits not 
 only the reaction in favour of the nobility, but 
 also the Council's immense decline in adminis- 
 trative talent, since the days of the Tudors. 
 Their Ministers were Cromwells, Cecils, Walsing- 
 hams. The administrators of Charles's govern- 
 ment were Pembrokes, Westons, Bridgewaters. 
 The list further suggests (though from its Suggestive 
 incompleteness it does not prove this) that 
 the separation between the Privy Councillors 
 and the ordinary Councillors had widened. 
 
 The most conspicuous acts of Charles's Coun- 
 cil are too notorious to need more than a passing 
 allusion. From the Council proceeded illegal 
 demands for money. In the Star Chamber was 
 
 1 Athenaeum (1855), p. 1187. 
 
128 The Privy Council. 
 
 found a means of punishing those who refused 
 compliance. Chambers, in 1629, for the refusal 
 to pay duties not imposed by Parliament, was 
 summoned before the Privy Council 1 . On exam- 
 ination he gave expression to an opinion that in 
 no part of the world, not even in Turkey, were 
 merchants so ' screwed and wrung ' as in England. 
 To exhibit the falsehood of this assertion, the 
 Star Chamber sentenced him to a fine of ^2,000, 
 and to make a humble submission. From the 
 Council board came forth proclamations more 
 arbitrary than even James had issued. They 
 limited the importation of different articles 2 , 
 regulated trade, fixed the price of various com- 
 modities. The rights of property were no longer 
 respected, since an edict of the Council com- 
 manded the demolition of buildings near St. 
 Paul's, with or without the consent of the 
 owners ; whilst another mandate ordained that 
 all the shops in Cheapside, except those of the 
 goldsmiths, should be closed. 
 
 The Law courts, though subservient to the 
 Crown, were not sufficiently servile to suit 
 Charles's policy ; and in 1631 the Council was 
 empowered by a royal commission to ' examine 
 and enquire into all differences which shall arise 
 between any of the courts of justice 3 ,' and thus 
 installed in a position to control all the proceed- 
 
 1 Hallam's Const. Hist. ii. 7. 
 3 Ibid. ii. 27. s Ibid. ii. 9. 
 
The Privy Council. 129 
 
 ings of the iuclicial tribunals. Each year the Demand 
 
 J for ship 
 
 Council s encroachments became more oppres- money. 
 sive, till from it issued the celebrated de- 
 mand for ship money. The history of this 
 demand, and of the resistance it met with, is 
 known to every reader. Nothing is gained 
 in a history of the Council by dwelling on the 
 contest between the Crown and the people, 
 which ended in the convocation of the Long 
 Parliament. 
 
 One more example of the Council's despotic 
 acts may close the list of its attacks on English 
 freedom. The act is not one of outrageous 
 tyranny, but it throws light on the state of 
 England, and is remarkable from its connection 
 with a celebrated name. In 1630, the Corpora- 
 tion of Huntingdon was remodelled. What was 
 the ground on which the government claimed the 
 right to interfere is not known. The object 
 of the measure was alleged to be 'to prevent 
 popular tumult, and to reduce the elections and 
 other things, and the public business of the town, 
 into certainty and order.' The effect of the 
 measure was to establish a close corporation, 
 and to excite discontent. Among those who 
 gave expression to the general sentiment of 
 dissatisfaction, was the future Protector. The Arrest of 
 Council's registers for November bear the record Cromwell, 
 that Oliver Cromwell, esquire, and William 
 Killburne, gentleman, having been formally sent 
 K 
 
130 The Privy Council. 
 
 for by warrant, 'tendered their appearances 
 accordingly, which for their indemnities is en- 
 tered on the list of the Council's causes, but they 
 are to remain in the custody of the messenger 
 until they shall be dismissed by their lordships.' 
 Cromwell and his accusers were examined on 
 the first of December 1 . The investigation led 
 to no result. An arbitrator between the two 
 parties dividing Huntingdon was appointed. 
 The town retained its new constitution, and 
 shortly after these events, Cromwell left Hunt- 
 ingdon for St. Ives. 
 Revolution Ten years after this examination took place, the 
 
 effected by _ _T ,. 
 
 Long Long Parliament met. Its first measure was to 
 
 P aSS ne - C Z ar ' Ca P' IO ' 
 
 lished the Star Chamber, and did away with 
 those judicial powers which the policy of a cent- 
 ury and a half had grouped around the Council. 
 With the jurisdiction of the Star Chamber 
 vanished the power of those tribunals, which 
 under the name of Councils of the North, of 
 the West, had imitated the tyranny and in- 
 creased the influence of the Privy Council. The 
 Long Parliament committed errors, and posterity 
 has dwelt more on its mistakes than on its 
 merits. Yet two deeds should have been alone 
 sufficient to have preserved the fame of the 
 patriots of 1640. Their noblest achievements 
 were the establishment of the rule of regular 
 
 1 Athenaeum (1855), p. 1187. 
 
The Privy Council. 131 
 
 law, and the abolition of torture. The single 
 assertion made by a careful enquirer, that after 
 1640 no instance can be discovered of torture 
 being employed, is the Long Parliament's highest 
 eulogy. 
 
 The restoration of the Stuarts and the restor- Compari- 
 ation of the Bourbons have been made the French and 
 subject of many antithetical comparisons. The V( Jju t \ 8 ong re " 
 French royal family, it is said, returned to a 
 nation where everything had been changed, 
 whilst the Stuarts came back to a land where 
 nothing was altered. Had this contrast not 
 possessed some appearance of truth, it could 
 never have become trite from repetition. Reflec- 
 tion, however, shows that the amount of truth 
 which it contains is small, and the view of 
 history on which it rests one-sided. The reader 
 who has learnt that the revolution of 1640 pro- 
 duced no permanent change, must be perplexed 
 to account for the feeling which every one enter- 
 tains, that from the time of the Restoration 
 English history has an entirely modern tone, 
 whilst in the age of Charles I there remains a 
 strong tinge of medievalism. The coexistence 
 of the common notion, that the Restoration 
 brought matters back to the point at which they 
 stood before the civil wars, together with the 
 apparently contradictory feeling that from 1660 
 commences a modern era, is accounted for by the 
 slight attention which has been paid to the 
 
 K 2 
 
132 The Privy Council. 
 
 history of the Council. Leave this body out of 
 consideration, and it may with truth be said 
 that the Long Parliament affected no permanent 
 alterations. What the Church was under 
 Charles I, such, in form at least, it continued to 
 be under Charles II. The Parliament which 
 welcomed back Charles in 1660, had the same 
 constitution as the Parliament which greeted 
 James on his accession in 1603. No great social 
 change had been worked by the leaders of the 
 Commonwealth. The Levellers had been ar- 
 rested in their course, and landed property had 
 not changed hands during the rule of the Pro- 
 tector. Let, on the other hand, the altered 
 position of the Council be taken into account, 
 and the work done by the men of 1640 stands 
 forth in all its greatness. Their schemes of 
 Church reform, their attempts directly to curtail 
 the Crown's power, came to nothing. Yet they 
 Effect of had not lived and laboured in vain. The power 
 bS' r s C de! m ~ of the Star Chamber had been thrown to the 
 struction. ground ; and, with its fall, the whole system of 
 government was changed. The struggle for 
 liberty was not ended, but it had entered on a 
 new phase. Disputes about the Council's rights 
 were done away with for ever. The Councillors 
 had formed a barrier between the Parliament 
 and the Crown. The barrier was removed, and 
 the two powers of the state were brought face to 
 face, to finish the struggle for sovereignty. This 
 
The Privy Council. 133 
 
 contest was not finally decided till 1688; but 
 its decision then would not have been possible 
 had it not been for the reforms of the Long 
 Parliament. 
 
 * Restauration ist immer auch Revolution, ' is 
 the dictum of the most recent enquirer into 
 Roman history. The saying holds good of the 
 English Restoration. No more loyal assembly 
 ever met than the Parliament of 1660. It was 
 eager to undo the work of the last twenty years. 
 At one point, however, it held its hand. A 
 proposition was made to restore the Star Cham- 
 ber. Loyalty forbad that the proposal should 
 be rejected, but it was allowed to come to 
 nothing. The Parliament itself could hardly 
 have told what was the reason which made it 
 hesitate at this particular measure. It paused 
 in the work of reaction, not so much from any 
 dictate of respect for liberty as from that species 
 of instinct which will at times make patent to a 
 whole people that a particular law or institution 
 is become a thing of the past. 
 
 Moreover it may be conjectured that the Not fully 
 Parliament was not thoroughly aware of the by Pariia- 
 revolution which the abolition of the Star Cham- ment> 
 ber involved. The House of Commons probably 
 conceived that they had merely cut down abuses 
 which had clustered around an ancient insti- 
 tution, and had restored the government to the 
 form which it had held before the rise of the 
 
134 The Privy Council. 
 
 Star Chamber's authority. In appearance this 
 had been done: for the Council's political powers 
 remained uncurtailed. It was in 1660, as it 
 still is in 1860, the only body of royal Ministers 
 known to the law. Nevertheless Parliament, 
 in cutting down its judicial power, had not 
 lopped off an accidental outgrowth on the 
 original constitution of the Council, but had 
 taken away the essential characteristic which 
 had given to the Privy Council its peculiar 
 nature. It had at all former periods been an 
 assembly of all the greatest officers of the state. 
 It was rather the case that the officers made up 
 the Council than that from the Council were 
 appointed the officers. Each Minister was re- 
 sponsible for his own department, while for the 
 general policy of the government he had no 
 necessary responsibility. What course of action 
 the government should pursue was decided, in 
 most cases, by the King himself; in others (as 
 for instance during a minority), by the majority 
 of the Council. The whole assembly had not, 
 nor was supposed to have, an united policy. In 
 many cases, during the fifteenth century, dif- 
 ferent Councillors opposed each other with as 
 much freedom as in modern days the head of the 
 Ministry and the leader of the opposition. 
 During the whole minority of Henry VI, 
 Beaufort and Gloucester attacked one another 
 with all the bitterness to be expected from the 
 
The Privy Council. 135 
 
 chiefs of opposite factions. Under the Tudors, 
 this species of opposition between members of 
 the Council ceased, not because the Councillors 
 agreed together, but because each Minister had 
 little to do but to transact the affairs of his 
 department, in obedience to the monarch's will. 
 In an assembly where the members had no need 
 to agree together on matters of policy, smallness 
 of numbers was not required. The Council of 
 Edward VI consisted of forty persons, but there 
 is no reason to suppose that the Councillors 
 agreed in anything but in readiness to carry out 
 the King's behests. The 'committee for the 
 state' were perhaps agreed on general principles 
 of policy, but they made up a number little 
 larger than that of a modern Cabinet. 
 
 The Parliament of 1660 had made the Council 
 a purely political body. Among its members 
 were still included the great officers of state ; 
 but for the business which it had to transact the 
 presence of many of these great officials was no 
 less inconvenient than unnecessary. There was, 
 for instance, no reason of propriety or con- 
 venience for calling on the Archbishop of Can- 
 terbury to attend at debates about questions of 
 foreign affairs, or of court intrigues. Moreover, 
 from different reasons, the King and the Par- 
 liament agreed in the desire to substitute a 
 smaller body for the Council. Charles hated the 
 formality of long discussions, and felt with 
 
136 The Privy Council. 
 
 reason that (to quote from his own declaration of 
 1679) a Council was 'unfit for the secresy and 
 despatch which are necessary in great affairs.' 
 The Parliament entertained the feeling that 
 Ministers ought to be responsible, and ought to 
 
 Inevitable pursue some definite policy. If the whole Coun- 
 cil were really the Ministry, this could not be. 
 It was a body too numerous to agree together, 
 or to be made responsible for its political acts. 
 Some change was felt to be necessary, whilst no 
 one knew exactly what it ought to be. A 
 democratic assembly would have attempted to 
 appoint the Crown's Ministers directly by Par- 
 liament. Something of this kind the Long 
 Parliament had endeavoured to achieve. Before 
 the arrest of the five members, Charles I bound 
 himself to act by the advice of two or three 
 persons, acceptable to the House of Commons ; 
 that is, to form a Ministry : and the propositions 
 of Newport contained the stipulation that Par- 
 liament should nominate the King's Council. 
 Plans such as these met with no acceptance in 
 the eyes of assemblies inspired with the loyalty 
 of the Restoration. Innovation was their horror. 
 They still looked on the Privy Council as the 
 regular Government, and meditated no change 
 in its constitution. 
 
 came from The alteration which was inevitable came 
 
 n ' from the side of the Crown. Clarendon laments, 
 
 with some bitterness, Charles II's dislike to 
 
The Privy Council. 137 
 
 debates in Council. The Chancellor saw that 
 more and more the habit of consulting the 
 whole body of the Councillors was going into 
 disuse, and that the arbitrary power which 
 Charles coveted was the authority of a Louis 
 XIV, not of a Henry VIII. He saw the change 
 in progress ; he perceived the great evils which 
 it involved : he did not understand that these 
 perils could only be met by other changes in 
 the constitution of the country. The alteration 
 was one impossible to oppose, for Charles altered 
 not a single point in the form of the Council. 
 He changed its character by making use of one 
 of its peculiar characteristics. Since at all times 
 the Council had acted through committees, the 
 King could, without any innovation, form a 
 special committee, or (to use a term in use even 
 in his father's reign) a ' Cabinet,' to which alone 
 the secrets of his policy were confided. This 
 body in reality, though not in name, superseded 
 the rest of the Council. The whole body of 
 Privy Councillors, as from this point they may 
 be termed, were either never consulted or only 
 consulted when it was too late for their advice to 
 be more than a formality. In connection with the 
 formation of a Cabinet, Charles greatly increased 
 the number of the whole Council ; and thus ob- 
 tained a valid reason for employing only a select 
 body of his advisers. His proceedings are clearly 
 described in his own declaration of 1679 : 
 
138 The Privy Council. 
 
 The Cabal. His Majesty thanks you (the Councillors) for 
 all the good advices you have given him, which 
 might have been more frequent if the great 
 number of this Council had not made it unfit for 
 the secresy and despatch that are necessary in 
 many great affairs. This forced him to use a 
 smaller number of you in a foreign committee 
 (the Cabal), and sometimes the advices of some 
 few among them upon such occasions, for many 
 years past.' 
 
 The formation of a Cabinet was a necessity 
 which, while unaccompanied with other changes, 
 was fraught with great evils. It made all check 
 upon the King through the Council a mere 
 sham. It made men the real governors of the 
 country who were not the governors in name, 
 and who scarcely could be made responsible for 
 their acts. A later age discovered a remedy for 
 these evils, through transferring to Parliament, 
 by a very circuitous process, the nomination of 
 Ministers. This remedy was brought about by 
 indirect means, and through a combination of 
 circumstances which no wisdom could have fore- 
 seen. There is, therefore, no cause to wonder 
 that thoughtful men, who saw the Council gliding 
 into a Cabal, felt the danger of a change which 
 they knew not how to avert. In 1679 the 
 whole of this peril was apparent. A Parliament 
 had met, more hostile to the Crown than any 
 which had assembled since 1640. Long mis- 
 
The Privy Council. 139 
 
 government had irritated the whole people. The 
 name of the Cabal had become a bye-word, and 
 the phantom of the Popish plot terrified the 
 nation to madness. 
 
 No man lived with greater claims to the Temple's 
 
 scheme. 
 
 title of a philosophic statesman than Sir W. 
 Temple. The King applied to him for advice. 
 The requested advice was at once given, and 
 consisted in a plan for the reconstruction of the 
 Council. The plan is minutely detailed by 
 Temple himself. It was nothing less than an 
 ingenious attempt to combine the advantages of 
 the old system of government by a Council, 
 with the merits of the modern plan of govern- 
 ment by a Cabinet, formed from the principal 
 Parliamentary leaders of the day. A new Coun- 
 cil was created, consisting of only thirty persons. 
 Among them were the Archbishop of Canterbury, 
 the Bishop of London, the Treasurer, the Lord 
 Chancellor, &c. So far, the Council as planned 
 by Temple was a mere revival of the Council 
 which had advised the Tudors. Three new 
 ideas gave originality to his scheme. The first 
 was, that the Council should, as it were, re- 
 present the different influential bodies of the 
 nation. Thus the bishops are 'to take care of 
 the Church.' The Lord Chancellor and the 
 Chief Justice are to 'inform the King well of 
 what concerns the laws.' The second is the 
 admission of influential members of Parliament. 
 
140 The Privy Council. 
 
 The last, that the Council should derive weight 
 from its collective property. Temple's own words 
 warrant confident assertions as to the nature of 
 the institution which he planned. 'It seemed 
 necessary,' he writes, 'to take into the Council 
 some lords and commoners, who were of most 
 appearing credit and sway in both houses, with- 
 out being thought either principled or interested 
 against the government, and mix them up with 
 others of His Majesty's more general choice, for 
 the making up of one half of the Council, 
 whilst the other half were ever to be the 
 present chief officers of his crown and household. 
 .... But one chief regard necessary to this 
 constitution, was that of the personal riches of 
 this new Council, which in revenues of land and 
 offices was found to amount to about 300,000 
 a year, whereas those of a House of Commons 
 are seldom found to haye exceeded 400,000. 
 And authority is observed much to follow land, 
 and at the worst, such a Council might of their 
 own stock, and upon a pinch, furnish the King 
 so far as to relieve some great necessity of the 
 Crown 1 .' 
 
 Temple's plan, in spite of its ingenuity, utterly 
 failed. Within two years he had retired from 
 office, filled with disgust and mortification, and 
 his scheme had passed away as completely as 
 any other paper constitution, which philosophers 
 
 1 Temple's Memoirs (1720), p. 233. 
 
The Privy Council. 141 
 
 have drawn up, and politicians have refused to 
 adopt. He attributes his failure to the King's Reasons 
 duplicity, and to the admission of Shaftesbury 
 to the Council Board. The King, doubtless, had 
 made a tool of the philosopher. But the reason 
 of Temple's failure lay much deeper than any 
 causes which he assigns. His Council was too 
 much or too little. It was too large for a Cabinet, 
 too small for a Parliament. It represented two 
 inconsistent principles : appointment of Ministers 
 for the sake of their Parliamentary influence, 
 and appointment of Ministers because they were 
 acceptable to the King. If the first principle 
 was to be adopted, the King was right in ad- 
 mitting Shaftesbury. If the second, he made 
 an eiTor in sending for Temple. It was in vain 
 the Chancellor blessed Temple's scheme as 'a 
 thing from heaven fallen into His Majesty's 
 heart,' that Sunderland gave his hearty approval, 
 and Essex burst forth into hyperbolical eulogy. 
 The plan was doomed to failure from its birth. 
 The Parliament received it coldly, and had 
 reason to do so, since, on Temple's own admis- 
 sion, the authority of his Council was meant 
 to counterbalance the influence of Parliament. 
 Bickerings broke out among the Councillors, 
 and Temple dealt a death blow to his own 
 creation, when, though the essence of his scheme 
 was that all the Council should be consulted, he 
 consented to form part of a Council within the 
 
142 The Privy Council. 
 
 Council. It is, however, from its very incon- 
 sistencies, that Temple's plan derives interest. 
 Growth It marks the transition from government by the 
 Cabinet, whole Council to government by a Cabinet. 
 For from 1679 no systematic attempt has been 
 made to render all the Privy Councillors respon- 
 sible for the Crown's political acts. In the 
 original Act of Settlement, an enactment was 
 introduced which had this tendency, but it re- 
 mained a dead letter, and was shortly afterwards 
 repealed. The growth of the Cabinet was, how- 
 ever, a gradual process. The Council is still 
 the only body of royal Ministers known to the 
 English law, and it was long before the people 
 generally recognized the fact, that the Privy 
 Council was not in reality the government of 
 the realm. It long continued to be the custom 
 to convoke the Privy Council on important 
 occasions, such as the signature of the Peace of 
 Utrecht. But the convocation was a mere 
 formality, since Ministers had decided what was 
 to be done, before the Council met. This use- 
 less form, which could have no other effect than 
 to diminish the responsibility of the Crown's 
 real advisers, has now been dropped. Yet, down 
 to a late period, the Cabinet was looked upon as 
 an anomaly. A writer of 1701 lays down the 
 principle, that 'in setting the seal to foreign 
 alliances the Chancellor has a safe rule to follow ; 
 that is, humbly to inform His Majesty that he 
 
The Privy Council. 143 
 
 cannot legally set the great seal to a matter of 
 that consequence unless the same be first debated 
 and resolved in Council.' In 1711 an objection 
 was made in Parliament to the term ' Cabinet 
 Council,' as an expression unknown to our law ; 
 and Lord Peterborough could describe the Privy 
 Council as a body 'who were thought to know 
 every thing and knew nothing,' and the Cabinet 
 Council as those ' who thought nobody knew any 
 thing but themselves.' In truth the Cabinet is The 
 an anomaly, though it is one with which custom re aiiy an 
 has made the present age so familiar that its al 
 strangeness is forgotten. In theory the Cabinet 
 is nothing but a committee of the Privy Council, 
 yet with the Council it has in reality no dealings ; 
 and thus the extraordinary result has taken 
 place, that the Government of England is in the 
 hands of men whose position is legally unde- 
 fined: that while the Cabinet is a word of 
 every-day use, no lawyer can say what a Cabinet 
 is : that while no ordinary Englishman knows 
 who the Lords of the Council are, the Church of 
 England prays, Sunday by Sunday, that these 
 Lords may be ' endued with wisdom and under- 
 standing !' that while the collective responsibility 
 of Ministers is a doctrine appealed to by members 
 of the Government, no less than by their oppo- 
 nents, it is more than doubtful whether such 
 responsibility could be enforced by any legal 
 penalties: that, to sum up this catalogue of 
 
144 The Pi ivy Council. 
 
 contradictions, the Privy Council has the same 
 political powers which it had when Henry VIII 
 ascended the throne, whilst it is in reality 
 composed of persons many of whom never have 
 taken part or wished to take part in the contests 
 of political life. 
 
 The Act 1 6 Car. I, cap. 10, had taken away 
 the Council's extraordinary judicial powers, yet 
 some regular judicial authority it still retained. 
 It exercised the right of arresting and examining 
 accused persons, whom it afterwards sent to the 
 regular Law Courts. It constituted a court of 
 appeal from the colonial and the ecclesiastical 
 tribunals. Its authority in these cases was open 
 to no objection, for appeals were in fact referred 
 to law officers, and settled with the same 
 End of attention to law as suits in Chancery. Even 
 govern- S these vestiges of the Council's ancient juris- 
 diction have been taken away by the Act 3 and 
 4 Will. IV, for this measure transfers the judicial 
 powers of the Council from the whole body ; 
 who, however, did not in fact exert them, to a 
 special committee. Thus statute has produced 
 the same effect on the Council's legal authority 
 which custom has had on its political powers. 
 In each case the functions of the whole body 
 have passed into the hands of a smaller 
 committee, connected with the Privy Council 
 by little more than its name. 
 
 There are, however, many powers still exer- 
 
The Privy Council. 145 
 
 cised, nominally at least, through the Privy 
 Council. Many of these are conferred by statute. 
 To the Queen in Council is at times left the 
 decision whether a given act shall be put in 
 force ; to the decision of the Queen in Council, 
 for example, was left the date at which the 
 Divorce Act should come into operation. Other Powers of 
 rights, such as those of proclaiming ports, or fairs, r^y 1 
 fall to the Council as the only legal medium PJ> W J of 
 
 J * the Crown. 
 
 through which the Crown can exert its preroga- 
 tives. These powers, insignificant in themselves, 
 clearly exhibit the position in which the Council 
 stands. Through Privy Councillors, and through 
 them alone, can the Monarch act ; and hence the 
 powers of the Crown are in a sense the powers 
 of the Council. They have risen, they have 
 flourished, they have declined, together. They 
 are each vague and undefined. They are each 
 encircled with the halo of antiquity, and point 
 to a past greatness of which the might has 
 departed without taking away the dignity. 
 
 A recent writer has said, that nothing is more Conclu- 
 interesting than to trace the history of a great sl 
 cause ; and that as the enquirer contemplates its 
 rise from small beginnings, its difficulties, its 
 progress, or its failure, he feels a sort of personal 
 interest in the varying fate of a great principle. 
 Something similar is experienced by those who 
 mark the history of a great institution. An 
 interest by degrees awakens in the institution 
 L 
 
146 The Privy Council. 
 
 itself. It seems to have a life, an individuality, 
 a destiny of its own. It is the creation of man, 
 but it is greater than its creators, for it lives on 
 while they perish. Yet, the work of man, it too 
 is mortal ; and meets with disease, decline, 
 and death. If any institution can claim a sym- 
 pathy, generally accorded rather to human beings 
 than to their works, the Council of the English 
 monarchy may demand our especial interest. 
 It boasts a history stretching back to remote 
 antiquity. It acquired power amidst all the 
 dangers of a barbarous age. For a long period it 
 contained all that was noblest in English political 
 life. The Beauforts, the Bedfords, the Cromwells, 
 the Cecils, and Walsinghams of England, found 
 within it at once the sphere and the reward for 
 their talents. The benefits which it conferred 
 in periods when it was the real protector of the 
 weak, the true 'poor man's court,' more than 
 counterbalance the evils which it produced when 
 in later ages it rose as the Star Chamber, to be 
 the most oppressive authority which ever threat- 
 ened the liberties of England. 
 
 Whatever be the amount of sympathy which 
 the Council shall command, its history will be 
 found the more instructive the more carefully it 
 is studied : for that history is nothing else than the 
 account of the rise of all the greatest institutions 
 which make up our national constitution. Our 
 Parliaments and our Law Courts are but the 
 
The Privy Council. 147 
 
 outgrowth of the Council. In its history is seen 
 how not only institutions but ideas assumed 
 their modern form. As we study the gradual 
 separation of judicial, political, and adminis- 
 trative functions, it is perceived that the notions 
 of ' Law,' ' the State,' and ' the Government,' 
 which now are so impressed on men's minds as 
 almost to bear the delusive appearance of innate 
 ideas, themselves grew up by slow degrees ; and 
 that the annals of a past age can never be 
 understood till men have ceased to apply to them 
 terms and conceptions which are themselves the 
 product of later periods. 
 
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