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the signet addressed to the chancellor, treasurer, and
keeper of the privy seal, should thenceforward be en-
dorsed by, or be written with the advice of, the council.'
None of the officers aforesaid, or any others, were ' to
grant any charters of pardon, or collations to benefices,
except with the advice of the council ; and for the
greater security and independence of its members, the
important condition was added, that they might resign
whenever they found themselves unable to perform their
duties with advantage to the king's service, without their
retirement exciting his displeasure.'* 1

Lord Lovell, who was appointed a member of the council on that
occasion, prayed to be, and was, excused from serving, because he
had certain suits pending in the courts of law, which, he said, would
prevent his performing his duty ' honestement.' r



P Par!. Hist, v. 1, p. 64. Parry, v. 6, p. 146; citing Parl. Rot. v. 3,
Parks, of Eng. p. 80. p. 572.

> Nicolas, Proceedings Privy Coun. r Ib. p. 573.



THE PRIVY COUNCIL. 79



But meanwhile Parliament had begun to direct its A - D -
attention to the character and composition of the king's King's

i council

COUnCll. regulated



From the time of Henry III.'s minority to the close
of the fourteenth century the National Council had re-
peatedly preferred a claim to limit the irresponsible
power of the king by the election of the great officers
of state in Parliament. But it is doubtful whether
unless in one or two exceptional cases the right claimed
was ever exercised ; the commons seem generally to
have been satisfied when the king informed Parliament
of his nominations, and to have tacitly approved of them.
But it is curious to note this claim, as a foreshadow-
ing of the most extreme pretensions of parliamentary
government. s

Nevertheless, during this period, the commons were The
unremitting in the endeavour to restrain acts of arbi- C0 uncii
trary power and of usurped jurisdiction on the part of restrained
the king's council, and to control, in the interest of the commons.
subject, all abuses connected with the administration of
justice.*

In the last year of the reign of Edward III., the com-
mons undertook to represent to the king, that it would
be for his advantage, and that of the whole realm, if he
would increase his council with ten or twelve ' lords,
prelates, and others, who should be continually near the
king ; so as no great business might pass without the
advice and assent of six, or four of them, at least, as the
case required.' His majesty acceded to this request, Thecom-
with a proviso that the chancellor, treasurer, and privy SJJjJe an
seal might execute their offices without the presence of increa se
any of the said councillors. The commons then made ciiiors.
further protestation of their willingness to aid the king
to the utmost of their power ; but pointed to the fact



* Stubbs, v. 2, pp. 658, 610 ; v. 3, pp. 43, 247.
* Ib. v. 2, p. 605.



80 COUNCILS UNDER PREROGATIVE GOVERNMENT.

that, ' for the particular profit and advantage of some

private persons about the king, and their confederates,

the realm was much impoverished.' They then pro-

impeach- ceeded to impeach certain of these evil councillors, and

dismissal caused them to be dismissed from the king's council,



tne i r goods confiscated u a proceeding which was
frequently repeated during the reign of Eichard II. V

Henry IV. reigned as a constitutional king ; he
governed by the help of his Parliament, with the execu-
tive aid of a council, over which Parliament both claimed
and exercised a large measure of control. Henry V.
followed in his father's steps, acting throughout his
reign in the closest harmony with his Parliament. But
with the overthrow of the house of Lancaster, and the
supremacy of the house of York, a reaction set in ; the
influence of Parliament was diminished. Sessions were
held less frequently, and with small results in restraining
the impolicy or extravagance of the king, so that, Stubbs
tells us, ' the rule of the house of Lancaster was in the
main constitutional, and that of the house of York in
the main unconstitutional.' w

In illustration of the growing power of Parliament,
and of its acknowledged supremacy, in the reign of
Henry IV., and in that of his son and grandson (Henry
A.D. Hoe- V. and Henry VI.), we find certain of the king's house-
hold removed upon petition of the commons ; and Par-
liament occupying itself in framing regulations and
ordinances for the governance of the king's council and
the royal household, which, being made into a statute,
the council, together with all the judges, and the officers
of the household, at the command of the king, take oath
to observe. This is a very important assertion of the
principle of ministerial responsibility/

Parl. Hist, of Eng. v. 1, p. 141. x Nicolas, Proc. P. C. v. 1, p. 62;

Stubbs, v. 2, pp. 562, 609. v. 3, pp. 8, 18; v. 5, p. 13; v. 6,

* Cox, Ant. Parl. Elec. p. 93. p. 73. Parl. Hist. v. 1, pp. 291, 303.

" Ib. v. 3, pp. 72, 191, 234, 236, Forster, Debates on the Grand Re-

267, 273. monstrance, p. 49.



THE PRIVY COUNCIL. 81

Henceforward, until the accession of Henry VII., A.D. H85.
the history of the king's council is chiefly remarkable Deveiop-
for the gradual development of its administrative func- ^ e ^ e
tions, for the introduction of forms, intended to operate council
as constitutional restraints upon the personal exercise
of the royal will, and for a corresponding increase of
power on the part of the leading ministers of state of
whom the council was composed. During the whole of
this era, and until the close of the Stuart dynasty, the
personal influence and authority of the sovereign con-
tinued to be very great, though it necessarily varied
according to the ability or strength of character of the
reigning monarch. With a vigorous- prince upon the
throne, the royal supremacy was apt to be energetically
maintained to the detriment of all constitutional govern-
ment, and the council to become the mere instrument
of despotic will, the channel through which the royal
mandates passed. At other times, the influence of a
powerful nobility was exerted to curb the arbitrary ex-
ercise of kingly rule, and to aggrandise the authority
of his ministers/ Moreover, the ministers themselves
occupied, to some extent, an independent position. The
king could indeed appoint or dismiss them at pleasure ;
but it was essential that he should have a council of
some sort, and certain official personages necessarily itscom-
formed part of every council. These were the five P sition -
great officers of state above-mentioned viz., the chan-
cellor, the lord treasurer, the keeper of the privy seal,
the chamberlain, and the steward of the household, who
all had seats at the council board virtute officii. In addi-
tion to these functionaries, the council usually included
the Archbishops of Canterbury and York, and from ten
to fifteen other spiritual or temporal lords, or men of
mark, who possessed the confidence of the king and of



* See Dicey, Privy Council, p. 16. Stutos, v. 2, pp. 312, 499, 514, 668 ;
v. 3, pp. 247, 250.

VOL. I. G



82 COUNCILS UNDEE PREROGATIVE GOVERNMENT.

Parliament. For while the sovereign had an absolute
right to appoint or remove his councillors at pleasure,
the English monarchs appear to have been generally
careful to choose men as their advisers and ministers
who were acceptable to the lords and commons. 2 Some
Growing of the official members of the council, during this period,
of the ne ld offices which were not in the direct gift of the
council, crown, but were hereditary in certain families. Again,
the presence of the archbishops and other ecclesiastics
imparted a dignity and independence to the body other-
wise unattainable. With such a position it was not
difficult for a refractory council to cause its power to be
felt. They were privileged to approach the sovereign
with advice or remonstrance upon any matter affecting
the common weal. Their rebukes might indeed be dis-
regarded, and their counsel overruled ; but the moral
effect of their interposition could not be ignored.

What added materially to the weight and influence
of the council was that, through the instrumentality of
the chancellor, they could refuse to give effect to the
king's wishes, or to legalise his grant ; for, from a very
early period, they had claimed to take cognisance of
The great ev ery grant or writ issued by the king. The ' great
seal' remained in the custody of the chancellor, and
could not be affixed to any document except by his hand.
It is true that this rule was often regarded by sovereigns
as a vexatious and unwarrantable restraint ; and that
they sought to escape from it, either by retaining per-
sonal possession of the great seal, or by claiming that
signature by means of smaller royal seals (which at first
were kept in the king's own hands) was sufficient to
authenticate any writ or other missive. But Parliament
remonstrated against such practices, and claimed that a
rule which was a protection to the crown itself, against
fraud, should be strictly enforced. At length the privy



2 Sir II. Nicolas, P. C. v. 1, pp. ii., Hi.



THE PRIVY COUNCIL. 83

seal passed into the hands of a regular officer, when it

was maintained by the lawyers, though contested by the The privy

crown, that the great seal ought to be affixed to no bill

on a verbal warrant, or otherwise than upon a formal

writ of privy seal. a These circumstances contributed

to confer upon the king's council great and increasing

weight and influence.

Moreover, upon constitutional grounds, this doctrine
in regard to the seals was of obvious necessity : for the
chancellor could not prove that he had obeyed a royal
mandate unless he had a formal warrant to show for
what he had done. Yet while this plea, and probably
also the convenience to the crown of throwing upon its
servants a measure of responsibility for its own acts,
reconciled the king to this restriction upon the free
exercise of his will, the restraint was felt as peculiarly
irksome by the monarchs of England during this epoch.
During the reign of Edward IV., that sovereign ' on
many occasions enforced his directions in his letters to
the chancellor by adding his commands in his own hand-
writing ; ' and once it is mentioned of him that he ex-
pressed his indignant surprise that the chancellor did A - D - 1465 -
not deem his majesty's verbal commands ' sufficient
warrant ' for the issue of a particular instrument. 13

These constitutional safeguards against the unre- Constitu-

j ' f .t i jj > j tional se-

strainea exercise 01 the royal prerogative were enforced, CU rities.
from time to time, by further regulations to the same
effect. By an order of the council in the reign of Henry A.D. H43-
VI., rules were adopted which practically ensured that
every grant of the crown should, from the moment of its
presentation as a petition, or warrant, to the time of its
final sanction by royal writ, be brought under the
notice of the king's ministers. In the reign of Henry A.D. 1526.
VIII. all these rules were, in substance, re-enacted ; and,



* Dicey, pp. 17-20. p. 20.

b Sir H. Nicolas, Proc, of Privy c See Sir H. Nicolas, v. 6, pp. 91-
Council, v. 6, pp. 195, 196. Dicey, 95.

<j 2



84 COUNCILS UNDER PREROGATIVE GOVERNMENT.

so far as regards the issue of royal patents, grants, &c.,
they still continue in operation, with but little change,
excepting that grants which were formerly superin-
tended by the Privy Council now pass through the office
of a Secretary of State. d Nevertheless, the end which .
was intended to be promoted by these regulations was
not in accordance with the modern idea of ministerial
responsibility. They were designed for the security of
the crown itself, against fraudulent or unnecessary
grants ; and for this purpose numerous official person-
ages were required to take part in the investigation
into and decision upon petitions to the crown. They
were also intended to enforce the necessity for consulting
the council before the king should determine upon any
application for redress. But, after all, the responsibility
of ministers for the faithful discharge of their high func-
tions was to the crown, and not to Parliament. ?
A.D. 1422. It was during the reign of Henry VI. that the ' ordi-
nary ' or ' permanent ' council first assumed the name
of the ' Privy Council.' The habitual attendants at the
council, by whom the ordinary business was transacted,
came at this time to be distinguished from other members
of the same body who, like the judges, were only occa-
sionly summoned by the king. During the minority of
Henry VI. this distinction was the more apparent, as the
whole government was in the hands of a select number
of the king's council. Ordinances of council passed in
this reign provide for securing privacy at council meet-
ings, and the keeping its resolves secret, by forbidding
any to attend thereat unless specially summoned.
Meetings of the ' great council ' were occasionally held
by the king's command. But it is clear that under
Henry VI. a select council was gradually emerging from
out of the larger body, by a process similar to that



d Cox, Eng. Govt. p. 648.
Sir II. Nicolas, Proc. P. C. v. 6, p. 200, &c. ; v. 7, p. v. Dicey, p. 21.



THE PKIVY COUNCIL. 86

which afterwards gave birth to the Cabinet from the
womb of the Privy Council. f

The business which engaged the attention of the Business
king's council during the epoch under review was of the council,
most multifarious description, and its proceedings ex-
hibit an extraordinary combination of the executive and
legislative functions of the government. Grave affairs
of state, and questions of domestic and foreign policy ;
the preservation of the king's peace, and the manage-
ment of the public finances ; the affairs of aliens, the
regulation of trade, the settlement of ecclesiastical dis-
putes, and the defence of the faith against heretics and
sorcerers all these subjects, as appears from the
minutes which have been preserved of the proceedings
of council, formed part of its ordinary administrative
labours. Together with these important matters the
time of the council was occupied, as that of every
government must be, with an infinite number of trivial
cases. And although law-courts had been established
for the determination of every species of action or suit,
we still find the council exercising judicial functions,
not merely for the preservation of the public peace, but
for the trial of ordinary offenders. Whenever, in fact,
either from defect of legal authority to give judgment,
or from want of the necessary power to give effect to
their decisions, the law-courts were likely to prove in-
efficient, the council interposed, by summoning before it
defendants and accusers. A tribunal of this description
was doubtless useful in the infancy of regular institu-
tions for the security of life and property, but its action
was arbitrary and capricious. It was regarded with a
natural jealousy by Parliament, and from the reign of
Edward III. to that of Henry VI. the Commons made
vigorous efforts, on repeated occasions, to prevent the



f Dicey, pp. 22, 23; Nicolas, Proc. v. 6, pp. 61, 81, &c. Stubbs, v. 3,
P. 0. v. 1, p. 73; v. 5, pp. 22, 33; p. 251.



86 COUNCILS UNDER PEEROGATIVE GOVERNMENT.

council from interfering with matters which belonged to
the courts of law, and from illegally infringing upon the
property and liberties of the people. 8

The records of the Privy Council during the reigns

of Edward IV., Edward V., Eichard III., and Henry VII.

have not been preserved, so that nothing certain is known

of the constitution of the council under those monarchs.

A.D. H85. With the accession of the Tudor dynasty, the position

Depend- of the Privy Council towards the monarchy underwent

thTcoun- a noticeable change. After the Conquest, the power of

cii on the the barons had been exerted to curb the despotic will

kin or

of the sovereign. In later times, the prerogative was
exposed to assault from the rising power of the Com-
mons ; whilst the nobles, for the most part, loyally
supported the throne. The history of the council, from
the accession of Henry VII. to the sixteenth year of
Charles I., is the history of regal supremacy, potentially
exercised through a body of ministers, who had
ceased to be a check upon the royal will. This new
position of the council towards the crown was mainly
brought about by the introduction therein of a number
of commoners, who owed their position and influence
entirely to the king's favour. The new councillors
were doubtless men of mark and ability, but, unless
noble by station, they could not be independent of the
crown. And where hereditary offices were held by
peers, it frequently happened that a deputy was chosen
from amongst the commoners, to perform the duties
and exert the influence of the post. This gave ad-
ditional strength to the crown, and was the means of
rendering the government more efficient, but it greatly
undermined the independence of the council. 11 The
change in the composition of the Privy Council did not
escape the notice of the common people, by some of



Dicey, pp. 26-34. Nicolas, Proe. P. C., v. 1, p. ii.
Dicey, pp. .38-42.



THE PRIVY COUNCIL. 87

whom it was regarded with much dissatisfaction. About
twenty-five years after the accession of Henry VIII. A - D l536 -
there was a rising in Yorkshire. The malcontents de-
manded of the king redress of grievances. One of their
complaints was that the Privy Council was then formed Com-
of too many persons of humble birth, whilst at the agaiLft
commencement of his majesty's reign it had been other- j^ ncil
wise. The king told them, in reply, that at his acces-
sion there were in the council ' of the temporality but two
worthy calling noble, the one treasurer of England, the
other high steward of our house ; others, as the Lords
Marney and Darcey, but scant wellborn gentlemen, and
yet of no great lands until they were promoted by us,
and so made knights and lords : the rest were lawyers
and priests, save two bishops, which were Canterbury
and Winchester.' Henry proceeded to show that there
were then ' many nobles indeed, both of birth and con-
dition,' in the council ; but, in conclusion, he informed
the rebels, very emphatically, ' that it appertaineth
nothing to any of our subjects to appoint us our
council, ne we will take it so at your hands. Wherefore,
henceforth, remember better the duties of subjects to
-your king and sovereign lord, and meddle no more of
those nor such-like things as ye have nothing to do in.' 1
The altered relations between Church and State at
this period, consequent upon the Eeformation, con-
tributed greatly to increase the authority of the crown.
No longer dependent on a foreign potentate, but on the
king himself, the dignitaries of the Church imparted a
new vigour to the monarchy, when they ceased to be
the representatives of a rival power. But, in propor-
tion as the personal authority of the sovereign in-
creased, the influence of the Privy Council was weakened.
The records of the time bear ample testimony to the
condition of servility and dependence upon the sove-



Sir H. Nicolas, Proc. P. 0. v. 7, pp. 3, 4.



88 COUNCILS UNDER PEEEOGATIVE GOVERNMENT.

reign to which the council at this epoch had been re-
ducecU

Meanwhile, however, the power of the council as
an administrative body was in nowise diminished. On
the contrary, this was emphatically the age of ' govern-
Govern- ment by councils.' * Unconstitutional and arbitrary as
councils man y f tne ordinances of council in the fifteenth cen-
tury now appear, they almost seem mild when com-
pared with many of those of the Privy Council of
Henry VIII. Combining much of the legal authority
with the civil and political, it exerted a despotic con-
trol over the freedom and property of every man in
the realm, without regard to rank or station. Its vigi-
lance was as unremitting as its resentment was fatal ;
and its proceedings cannot be read without astonish-
ment, that the liberties and constitutional rights of
Englishmen should ever have recovered from the state
of subjugation in which they were then held by the
crown. ' k Chiefly concerning itself in securing the in-
ternal tranquillity of the kingdom, and in detecting and
punishing treason or sedition, the Privy Council also
directed its attention to ' nearly everything connected
with the conduct of individuals towards each other, and
in relation to the government.' It interposed in matters
of private concern, making itself the arbitrator of
quarrels between private individuals thereby encroach-
ing upon the province of the established courts of law.
It likewise interfered in ecclesiastical affairs, when its
proceedings were often of the most despotic character.
In all matters brought before it the council exercised a
very summary jurisdiction, usually punishing offenders
by committing them to the Tower, by fine, or imprison-
ment, or both. 1 Eeviewing the proceedings of the
Privy Council during this period, Sir Harris Nicolas
is of opinion, * that the arbitrary and unconstitutional

J Dicey, pp. 42, 43. k Sir H. Nicolas, Proc. P. C. v. 7, p. 24.

1 II. pp. 25, 26, 31, 45, 49.



THE PRIVY COUNCIL. 89

powers which the government then exercised, arose less
from the personal character of the reigning monarch,
congenial as despotism was to his feelings, than from a
gradual encroachment on the liberties of the people,
and a corresponding extension of the prerogatives of
the crown, during the latter part of the fifteenth, and
continued until the middle of the sixteenth century.
This innovation may probably be traced to the usurpa-
tion of Eichard III., followed by the usurpation of
Henry VII. ; it being scarcely possible for the liberties
of a country to survive two revolutions, or for a suc-
cessful rebel not to become a tyrant. ' m

From the constitution of the Privy Council under Power of
the Tudor sovereigns, it might be supposed that every ^2^
political measure, if it did not originate with the Henry

VIII.

Council, was at any rate deliberated upon by that body.
But such was not at all the case. ' Henry VIII. was in
the fullest sense of the word his own minister ; and all
the most important matters, particularly in relation to
foreign policy, proceeded immediately from his own
mind, and were conducted upon his own judgment.'
The modified form of ministerial responsibility which
-we have seen was established by command of Henry IV.,
and which continued to be enforced in subsequent
reigns, was set at nought by Henry VIII., as appears
from transactions recorded in State Papers of the
period : ' As there were some occasions on which he
did not even consult his favourite minister, it may be
inferred that there were many more on which he acted
without the advice of his council.' 11 For a timeWolsey
was his favourite, and then Cromwell ; but after the
fall of Cromwell, no one minister bore even the slight
resemblance presented by these statesmen to a modern
premier. In fact, Henry issued his commands to any



m Sir H. Nicolas, Proc. P. C. v. 7, correspondence between the King and
p. 66. And see State Papers, pub- Cardinal Wolsey, v. 1.
lished by Commission, containing n Ib, pp. 11, 12.



90 COUNCILS UNDER PREROGATIVE GOVERNMENT.

of his ministers, without regard to their peculiar duties;
but, ' as no responsibility to the country was incurred,
it mattered little whom the king selected to carry his
orders into effect. He was himself the centre from
which every measure emanated, and his ministers had
nothing more to do than to receive his commands
and obey them. But all communications between the
ministers and the king, relating to the affairs of govern-
ment, seem, even in that arbitrary period, to have been
made through a privy councillor ; so that the forms of
the Constitution were, in this important point at least,
strictly adhered to ; and, how r ever forgetful Parliament
might have been of its duties, means always existed of
fixing the responsibility for the acts of the crown upon
those to whom, according to the laws, it entirely and
exclusively attaches.'

During the reign of Henry VIII., the greater part
of the members of the Privy Council appear to have
been in regular attendance upon the king ; accompany-
ing him wherever he went, and giving their daily atten-
tion to the business of the state. These were usually



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