BOOKS.
THE PRIVY COUNCIL.*
Tits true nature of a political Constitution, like that of a. man, can only be completely known and understood when alive. How- ever perfect are the memorials of the dead, it is impossible that from them can be reproduced exactly the character of the living. So with the English Constitution. When that astonishing. collection of customs and observances, positive enactments and constitutional fictions, privileges, rights and etiquettes, which during the march of history, and in accordance with the spirit and character of the English race, has been bound into a. political system, and made the most famous instrument of government in the world, shall have ceased to exist, one at least of the most vital organisms of the Constitution is certain to be. misunderstood. No analyser of the English Constitution after it has ceased to exist, will ever be able to realise fully the position of the Privy Council. No amount of mere description will suffice. to make posterity realise the nature of that strange body, which, looked at historically, is the last remains of the parent stock from which almost every political institution we possess has been derived ; which at this moment is the only part of the Constitution that can, without legislative intervention, germinate- and throw out new offshoots ; of which the most formal aspect is the Supreme Court' of the Empire, the most informal the secret committee that wields the sovereign executive authority which it has gathered with one hand from the House of Commons, and with the other from the Crown. The Privy Council, as we know it, a living organism, will no more be able to be described accurately in history than can the exact functions- of the Roman Senate be realised now its actual working cannot be watched and studied.
We, however, who can see the Privy Council as it is, and can trace back to its source the running stream of development, need not despair of appreciating with exactness its position in our poli- tical system. As an attempt to set out the origin of the Privy Council in a clear and accurate manner, the prize essay of Professor Albert Dicey, just republished, will be gladly welcomed by all constitutional students. Though written twenty-seven- years ago, and so before the researches of Professor Freeman, the Bishop of Chester, and the great German investigators of our early history, the essay is extraordinarily full and correct in its account of the Privy Council. The admirable qualities of clearness of ex- position, certainty of thought, closeness of reasoning, and accuracy of detail which are to be found in Professor Dicey's later works, are apparent—though, of course, in a lees degree—in this- youthful essay. In it, too, we see signs not only of that instinct for the elucidation of constitutional problems without which the most minute research is half-useless, but of the lawyer's feeling towards history, which makes him specially alert for what is of positive legal value in the subject of his inquiry, and renders him ever inclined to challenge constitutional theories with the. question,—' Is that good law ?' Without wishing to minimise the value of the work of Professor Stubbs, it must be admitted that the absence of the legal sense in him is sometimes inclined. to produce, if not inaccuracy, at least indistinctness of view. Ia Professor Dicey, however, the desire only to make statements that are at once definite, positive, and sustainable on argument,.
• The Privy Comm/. The Arnold Prim, Easay, 1860. By Albert Tenn Dicey, Vinerian Professor of English Law in the University of Oxford. London: Macmillan and Co. 1887.
is always conspicuous, and is as marked in his prize essay as in his later volumes.
Without attempting to summarise Professor Dicey's essay, it may be useful to sketch in general outline the rise and nature of the Privy Council. Every ruler of a country not absolutely barbarous, draws round him some sort of council of the great men among his subjects, to whose advice he listens. The feudal Sovereigns of England summoned to their councils the principal tenants of the Crown. This body soon obtained the name of the Great Council. Meetings, however, of the body in its widest meaning were necessarily few and far between ; but instead of them, or rather as representing them, the King assembled more often the great officers of his Court in a permanent Council, which, to begin with, was not very clearly differentiated from the Great Council itself, though it soon obtained the dis- tinctive name of the Aula Regis or Curia Regis. The Curia Regis was in effect much like the body which we know later under the name of the Privy Council. Its further development can be best understood by comparing it to one of those nebulous stare which the astronomers tell us shed portions of their own bodies in such a way that those portions become separate entities. To begin with, the Curia Regis gave off, about the middle of the twelfth century, the Court of the Exchequer. That is, it was very soon found convenient to give over to a special committee of the Council the financial work of the King's Court. This committee soon hardened into a separate administrative, and then judicial organism, under the name of the Exchequer Court. Next, the Court of Queen's Bench and the Court of Common Pleas were split off and became independent bodies. But though the Curia Regis, or King's Council, thus parted with certain of its functions, it still kept the administration of the vast prerogatives of the Crown in its possession. Chief among these was the equitable jurisdiction of the Crown,—that is, the prerogative of the Crown to do grace and favour among its subjects. Soon, however, what had happened with the Courts of Common Law happened with the equitable jurisdiction of the Council, and the Court of Chancery was shed by the Curia Regis. At the same time as the Council was shedding its judicial functions on one side, it was losing, by the development of Parliament, its legislative powers on the other. Into this, however, it is not possible to enter here. It is enough to remind our readers that Parliament and the Privy Council have a common origin, or perhaps it would be more correct to say that Parliament, like the Law Courts, have their origin in that Great Council which dwindled to the Privy Council. After these developments, the Council for a time remained without change under the name of the Ordinary Council, though there were signs of its power being exercised by a smaller body within the Council which began to be called the Privy Council. This Privy Council during the Tudors, partly by a legitimate exercise of the Royal prerogative, partly by an illegal usurpation of power, began to assume judicial functions of a kind which, if left alone, would have resulted in the creation of another Court of Law. The process, however, by which the Court of the Star-Chamber was fast becoming a regular instead of an informal tribunal, was checked by the Great Rebellion. On the Restoration, the King's Council, indeed, sur- vived ; but it had received a serious rebuff at the hands of its old opponent, the Common Law. The pretensions on which the Star-Chamber rested were gone for ever. The vitality of the Privy Council in other directions, however, was unaltered. In the reign of Charles IL, it evolved that secret committee, or Cabinet, which has ever since been the chief executive instru- ment of the State. This most important committee of State —originally concerned with foreign affairs—was, however, not the only committee of the Privy Council. Others, such as the Lords of Trade and Plantations, from time to time were commissioned to deal with particular pieces of adminis- trative work. The growth of the doctrine that no Royal act was valid unless countersigned by a Minister of the Crown, had resulted in making the Privy Council "the only legal medium through which the Crown could exert its prerogative." Thus, when the Crown exercised its prerogative in matters of trade, it was by means of Orders in Council. During the eighteenth century, the rise of the Colonial and Indian Empire gave a fresh development to the Privy Council. Suppose that persons in the Dependencies of the Crown were aggrieved in some way which prevented any remedy being obtained in the English Courts of Law, or that questions arose in those Dependencies of a kind such as had not arisen before, the means of redress was a petition to the Sovereign. These
petitions the Sovereign was, of course, unable to deal with in person, and he accordingly appointed a special committee of the Privy Council to decide them. One of the judicial reforms of fifty years ago was, to systematise this practice by making a permanent Judicial Committee of the Privy Council, to which all Indian and Colonial appeals were referred. This body has, of course, become an ordinary Court of Law, but its origin is remembered in the fact that the Lords of the Council do not give judgment directly, but only declare that it is their intention to advise her Majesty to give a particular decision. The erection of the Judicial Committee of the Privy Council into the final Court of Appeal for the Empire, is thus the last instance of the Council shedding its powers, and of the body thrown off becoming in our own day—just as did the Courts of Exchequer, Queen's Bench, Common Pleas, and Chancery in the Middle Agee,—a permanent judicial body. The importance of the last offspring of the Privy Council, how- ever, is even greater than just stated. Under the Judica- ture Act of 1876, the House of Lords was nominally re- tained as a final Court of Appeal. In reality, a new Court bearing that name was created. The policy of that Act, how- ever, and of successive Governments has been to merge this Court with the Judicial Committee. Ultimately, the House of Lords as a Court of Appeal and the Judicial Committee of the Privy Council will become one as regards the members that compose the Courts, and thus the whole Empire will be nader the jurisdiction of one great Court of Appeal, which will sit nominally as two bodies, but which will in effect be the same, and thus the greatest Law Court of the world, greater in tradition and in scope, if not in power, than even the Supreme Court of the United States of America. The historian who likes to dwell on the vicissitudes of institutions can have no small interest in noticing here how the House of Lords, which inherited its judicial functions from that Great Council which the Privy Council represents, is, after nearly six hundred years, on the point of merging those functions with the last offspring of the Privy Council.
The productive powers of the Privy Council are not, however, yet dried up. At this moment, if the Crown is called upon to perform some unaccustomed act, it is to the Privy Council that recourse is had. For instance, if, as in the case of Queensland, the two Houses of Legislature quarrel, and petition the Crown to decide between them, it is to the Privy Council (not the Judi- cial Committee, which only deals with ordinary suits at law) that the question is referred. Again, suppose that two foreign Powers asked the English Crown to arbitrate on some question in dispute. It would be to a special committee of the Privy Council that the matter would be referred. The Privy Council is alive,—who can say what may not be its next development P Before taking leave of Professor Dicey's work, we cannot resist quoting his excellent summary of the position of the Cabinet :—
" The growth of the Cabinet was, however, 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 recognised 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 useless 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 cannot legally set the great seal to a matter of that consequence unless the same be firet debated and resolved in Council.' In 1711 an objection was made in Parliament to the term Cabinet Council,' as an expreeeiou unknown to our law; and Lord Peterborough could describe the Privy Council as a body' who were thought to know everything and knew nothing,' and the Cabinet Council as those 'who thought nobody knew anything but themselves.' In truth the Cabinet is an anomaly, though it is one with which custom has made the present age so familiar that its strangeness is forgotten. In theory the Cabinet is nothing but a committee of the Privy Council, yet with the Connoil 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 undefined : that while the Cabinet is a word
of everyday 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 understanding !' that while the collective responsibility of Ministers is a doctrine appealed to by members of the Government, no less than by their opponents, it is more than doubtful whether such responsibility could be enforced by any legal penalties that, to sum up this catalogue of contradictions,
the Privy Council has the name 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 m the contests of political life."
This passage, though it, of course, cannot be expected to display the same extraordinary grasp of legal subjects, vigour and originality of thought, and distinction of style, which are to be found in Professor Dicey's more mature work, is still conceived in a spirit at once sound and judicious, and is, in truth, a piece of constitutional criticism of which no historian or lawyer need be ashamed.
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