abolished by an act of the Long Parliament. Constitu tion of the council in the days of Elizabeth: system of drew its strength from the moral force of the royal authority; of the court continued practically unimpaired during the reigns of Elizabeth and James, and down to the 16th of Charles I., when it was abolished by the Long Parliament in an act1 which declared that it had exercised throughout a jurisdiction never conferred by the statute creating it. 6. However distinct and potent an entity the high commission may have been during the eighty years of its existence, it must not be forgotten that it was simply an agency of the conciliar system, to whose supervision it was subject. The fact has already been emphasized that, despotic and powerful Tudor as was the Tudor system of government, the source of its government Strength was not in a standing army, but in the moral force of the royal authority, which exercised a supervising and directing power over every branch of the administration through the council, whose functions were to a limited extent legislative as well as judicial and political.2 In order to render its influence the council all-pervading, the powers of the council were applied to particular subjects through such agencies as the star chamber, the high commission, the court of requests, a minor court of equity supposed to have had its origin in an order made in the 13th of Richard II.,3- the court of the president and council of the north, erected by Henry VIII. after the suppression of the great insurrection of 1536, and which-together with the courts of the president of the council of Wales and the Welsh marches, of the duchy of Lancaster, and of the counties palatine of Chester1 and Durham—is said to have Guernsey finally deprived one third of England of the privileges of the common law. By Poyning's Act of 1494 the Irish parliament was brought under the control of the council, and in the same the great organ of administration; its agen cies; Ireland, Jersey, and controlled by the council; 1 16 Chas. I. c. 11, A. D. 1640. The nature of the proceedings of the high commission during the last seven years of its existence can best be understood from its act, Books lately printed under the authority of the Master of the Rolls, in the Calendar of State Papers, Domestic series, 1633-1640. 2 See above, pp. 35-37. 3 Requiring certain members of the council to hear "particular petitions offered by poor persons and those of the king's household."- Reeves' Hist. of the Eng. Law, vol. iii. p. 401, Finlason ed. This court, virtually abolished by a decision of the court of queen's bench in the reign of Elizabeth, was finally dissolved with others of its class by 16 Car. I. c. 10. See Spence, Eq. Juris., vol. i. p. 351; Palgrave, Original Authority of the King's Council, pp. 79, 99. 4 The best and most recent history of these courts may be found in Sir J. F. Stephen's Hist. of the Crim. Law, vol. i. pp. 126–135, 138–144, 166, 167, where the fate of each one is fully detailed. 5 Hallam, Const. Hist., vol. ii. p. 99. martial as reign Jersey and Guernsey were made subject to its rule.1 On grave occasions the crown, through the council, also appointed temporary courts or commissions for the trial of particular offenders, and among them should be noted the courtsmartial, by whose creation the common law could be suspended courtsby the law martial, an authority originally exercised by the con- agents of stable and marshal over troops in actual service, and specially the council; in foreign service. This system, which could be legitimately used only in actual war, or in cases of foreign service, was improperly gradually employed by the crown, and specially by Elizabeth, employed in sudden emergencies in times of peace, and often for the peace; suppression of mere breaches of the peace. The execution of the vast and far-reaching powers thus cast upon the council as the Tudor period advanced necessarily involved changes in its internal constitution which should be noted here. With the the council decline of the influence of the nobles as leaders of the nation, gradually the council, without any change in its outward form, was gradu- formed ally transformed from an independent body, which stood as a independbridle upon the royal authority, into a mere corps of officials into a corps subject to the king's will and direction. While the nobles still of royal retained their hereditary offices, whose diminishing duties were, as a rule, performed by deputies, the council was continually reinforced by commoners, who assumed the more active reinforced duties; and thus it was that, during the reigns of Henry VIII. ers, who and Elizabeth, "England was governed, not through peers of assumed ancient lineage, but through the Cromwells, the Sadlers, the active Petres, and the Cecils, who constituted the glory of the Tudors' rule." 5 From the picture of the council contained in the regulations drawn up by Edward VI. in 1553, it appears 1 Dicey, The Privy Council, p. 90. 2 See Black Book of Admiralty, vol. i. p. 282 et seq., as to "Statutes and Ordinances to be kept in time of Warre;" and essay as to the "Laws of War," by Professor M. Bernard, Oxford Essays for 1856. For modern expositions of the law as it now exists, see Wright v. Fitzgerald, 27 St. Tr. 765; R. v. Eyre, case and opinion, in Forsyth's Const. Law, p. 551; Stephen, Hist. of the Crim. Law, vol. i. pp. 207–216. For such a commission issued in July, 1595, to Wyllford, authorizing him as provost-marshal to proceed by martial law, see Fadera, vol. xvi. p. 279. As to the case of Burchell, which 4 Vol. i. pp. 542-546. 5 Dicey, The Privy Council, p. 86. trans from an ent body officials; the more duties; committees, which special duties were assigned; origin and growth of secretary; that the forty members of whom it was then composed, twentydivided into two being commoners, were divided into five commissions or to each of committees, to each of which was assigned a definite class of official duties, whose discharge was governed by minute regulations. The essence of the arrangement was that everything should be brought under the royal eye by the secretary as the channel of communication between the councillors and the king, who was all in all. Originally, there was but one the office of secretary without rank or influence, the king's clerk, as he was often called until the reign of Henry III., after which time the dignity of the office gradually increased, until the secretary was invariably made a member of the council, in which he took rank with the barons of the realm.1 During the reign of Henry VIII. the increasing pressure of business brought about the appointment of two secretaries, both of whom received a signet for the sealing of all warrants and cabinet letters "both inside and outside, as was customary;" and before the close of that reign, by the Statute of Precedence (31 Hen. VIII. c. 14), they were made members of the the council council ex officio. In the reign of Elizabeth, Cecil as secretary ex officio; stands out as the principal officer of the government, and in 1601 the transition was completed when, for the first time, the title of "our principal secretary of estate "2 was given to his son. The process has already been drawn out through which the sworn and paid councillors who devoted themselves regularly to the king's business began to be known during the reign of Henry VI. as the privy council, the private or inner circle of the greater body of nobles, lawyers, and others who were only occasionally summoned. At a later day, by a simidivision of lar process, the privy council itself was divided into two classes. its members In the reign of Henry VIII. the occasional councillors, who acted probably as members of particular commissions, generally of a judicial character, were for the first time designated as "ordinary" councillors, to distinguish them from the privy become members of Robert Cecil becomes "principal secretary of state;" the privy council; into two classes; prescribed by Henry VIII. in 1526 for 1 Dicey, The Privy Council, pp. 83, 2 "It needed but one step more for them to pass from mere secretaries into Secretaries of State.”— Dicey, p. 84. As to the origin of that office, see judgment of Camden, C. J., in Entick v. Carrington, 19 St. Tr. 1030 (case as to general warrants); Nicholas, vol. vi. p. 117 et seq. 8 Vol. i. pp. 546, 547. or working the cabinet times. the entire individuals a legisla "administra councillors proper who constituted the inner circle or working body which directed the royal administration as a whole. In the inner that way can be traced the beginnings of that vitally important body transdivision between those members of the privy council who hold formed into the title without performing the duties of the office, and that of modern inner working body which, through a set of tacit understandings, has been transformed into the cabinet of modern times. Having now defined in general terms the constitution of the The council council, the character of its agencies, and the wide scope of its supervised powers as they existed during the Tudor period, some refer- state machinery and ence must be made to the manner in which those powers were punished applied either directly to the punishment of individuals, or to directly; the supervision and direction of the entire state machinery, from parliament itself down to the local self-governing bodies. And here the fact must be kept steadily in view that the council habitually acted in three distinct capacities: as a legisla- the council ture; as a law court; and as an administrative body.2 At an ture, law earlier stage of this work the statement has been made that, court, and while after the organization of the estate system a strenuous tive body; effort was made by the national assembly to draw to itself the exclusive exercise of the legislative and taxative functions originally vested in the king and council, it stopped short of complete victory by leaving in the hands of the king in council an undefined residuum of legislative power, which was for a long the time exercised in the making of a class of temporary regu- power of ordaining lations known as ordinances and proclamations. While the the king principle was firmly established that the permanent and fundamental law of the land, which was the customary law as the law of amended by parliamentary statutes, could be repealed or which it amended only by the king acting with the consent of the estates, could not it was equally well settled that without their consent he could make and unmake a set of tentative and temporary enactments with the advice of the council alone. In order to reinforce parliament these acts of the council Henry VIII., whose policy it was to proclamause parliament as his tool, obtained the famous statute giving Henry to his proclamations the full force of law, — an admission that VIII. the without parliamentary authority they could not possess such law; force. After the repeal 5 of Henry's statute by Edward's first 1 Dicey, The Privy Council, p. 84. 2 Vol. i. pp. 543, 544. Ibid., pp. 496, 497. 4 in council; the land alter; gave to the tions of force of tions continued to after the parliament, the crown fell back upon the old theory of the proclama- ordaining power, by virtue of which several proclamations were issued in Edward's reign, notably that issued in 1549, which be issued provided that all "sowers and tellers abroad of forged tales" should be committed by the justices of the peace to the galleys, VIII. c. 8; where they should row in chains as slaves during the king's the ordain pleasure.1 Under Mary, by whom the practice was continued, as exercised a proclamation was issued which declared that any one who repeal of 31 Hen. ing power by Mary and Eliza beth; should have in his possession certain heretical or treasonable books should be regarded as a rebel and executed by martial law. Throughout the reign of Elizabeth the ordaining power of the queen in council was carried to great lengths in a series of proclamations by which all anabaptists were banished from the realm, the culture of woad and the exportation of corn and other articles prohibited, and severe penalties imposed upon all who should erect houses within three miles of London, or who should kill flesh meat in lent.5 In 1588, in the presence of the Armada, the limit was reached in a proclamation which provided that any person importing or distributing papal bulls or certain prohibited books should be instantly the practice seized and punished by martial law. Although such was the practice, the legal theory was "that while a proclamation canlegal theory. not make a law, it can add force to a law already made; that contrasted with the 4 (to use the words of judges living in the reign of Mary) 'the king may make a proclamation quoad terrorum populi, to put them in fear of his displeasure, 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.'" Regardless, however, of this purely legal view as afterwards expressed, the continual effort of the Tudors was to make the council a real legislative body by claiming for proclamations, always issued with its advice, the full force of law. 1 Strype, vol. ii. p. 149. 8 Three such proclamations were 4 Camden, p. 476. 5 Strype's Annals, vol. i. p. 235. Ibid., vol. iii. p. 570. It bears date July 1. 7 See Dicey, The Privy Council, pp. 91, 92. This famous judgment was de livered by Coke and three other judges (12 Rep. 74) at the request of the council in 1610, as to the illegality of royal proclamations prohibiting new buildings near London, and the making of starch from wheat. See Hallam, Const. Hist., vol. i. pp. 336, 337. The judg ment was brought about by the remonstrances made by the commons upon those subjects. |