Commentaries on the Laws of England, Book the First

by Sir William Blackstone

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

[g] 1 Inst. 110.

[h] 3 Inst. 125.

4. But the principal council belonging to the king is his privy council, which is generally called, by way of eminence, the council. And this, according to sir Edward Coke's description of it[], is a noble, honorable, and reverend assembly, of the king and such as he wills to be of his privy council, in the king's court or palace. The king's will is the sole constituent of a privy counsellor; and this also regulates their number, which of antient time was twelve or thereabouts. Afterwards it increased to so large a number, that it was found inconvenient for secresy and dispatch; and therefore king Charles the second in 1679 limited it to thirty: whereof fifteen were to be the principal officers of state, and those to be counsellors, virtute officii; and the other fifteen were composed of ten lords and five commoners of the king's choosing[k]. But since that time the number has been much augmented, and now continues indefinite. At the same time also, the antient office of lord president of the council was revived in the person of Anthony earl of Shaftsbury; an officer, that by the statute of 31 Hen. VIII. c. 10. has precedence next after the lord chancellor and lord treasurer.

[] 4 Inst. 53.

[k] Temple's Mem. part 3.

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

The duty of a privy counsellor appears from the oath of office[l], which consists of seven articles: 1. To advise the king according to the best of his cunning and discretion. 2. To advise for the king's honour and good of the public, without partiality through affection, love, meed, doubt, or dread. 3. To keep the king's counsel secret. 4. To avoid corruption. 5. To help and strengthen the execution of what shall be there resolved. 6. To withstand all persons who would attempt the contrary. And, lastly, in general, 7. To observe, keep, and do all that a good and true counsellor ought to do to his sovereign lord.

[l] 4 Inst. 54.

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