PRIVY COUNCIL. In England the king almost of necessity has been at all times guided by a council. The council, as it existed in the Norman period under the name of curia regis (a branch of the larger commune concilium regni), exercised judicial, legislative, and administrative functions. It contained the germs of the courts of law and equity, the Houses of Parliament, and the privy council. The Courts of King’s Bench and Common Pleas were gradually separated from it and became only courts of first instance, subject to appeal to the king’s council. From the time of Edward I. the concilium ordinarium, the ordinary or standing council of the king, superseded the curia regis. It exercised high judicial functions as the ultimate court of appeal, as the adviser of suitors on petition what court to choose for redress, and as the resort of those who failed to obtain justice in the ordinary course. It was also the supreme administrative body, and as such issued ordinances on matters of a local or temporary nature, with not infrequent usurpations at a later period of jurisdiction belonging more properly to the common law courts or to parliament. The council “consisted of the chief ministers, the chancellor, treasurer, lord steward, lord admiral, lord marshall, the keeper of the privy seal, the chamberlain, treasurer, and comptroller of the household, the chancellor of the exchequer, the master of the wardrobe; and of the judges, king’s serjeant, and attorneygeneral, the master of the rolls, and justices in eyre, who at that time were not the same as the judges at Westminster” (Hallam, Middle Ages, vol. iii. p. 205). The growing power of the ordinary council (it does not seem to have been called the privy council until after the reign of Henry VI.) led to many complaints ...on the part of the Commons, some of which found their expression in statutes. The most worthy of notice is 25 Edw. III. st. 5, c. 4, characterized by Hallam as probably the most extensively beneficial enactment in the -whole body of our laws. Among other provisions it prohibited arbitrary imprisonment and the determination of pleas of freehold before the council. The power of the council expanded or contracted according to the vigour of the king. Its authority was finally reduced by the Long Parliament in 1640 by means of 16 Car. I. c. 10. Assumption of jurisdiction over freeholds was still a grievance, for the Act specially declared that the king’s council has no jurisdiction over any man’s land, goods, or chattels. From the beginning of Edward III.’s reign the council and the House of Lords were often blended into one assembly, called the magnum concilium or great council. As it met only when summoned by writ and not daily, like the ordinary council, it could scarcely have exerted as much authority as the latter. It is therefore not surprising to find it soon split permanently into its two component parts, each retaining both judicial and legislative authority. The privy council still exercises authority of both kinds, though not as completely as the House of Lords. The political importance of the privy council has almost entirely disappeared since the duties of government have been assumed by the cabinet. Its modern legislative jurisdiction is of a subordinate character. Its position as a court of appeal from the foreign possessions of the crown is a strictly logical one. It was always the court for redress where no other redress could be obtained. For the sake of convenience this jurisdiction in cases of what is now called equity was exercised by the chancellor, originally the president of the ordinary council when it sat as a court of justice. But in cases for which equity made no provision, as being out of the bounds of the realm, the privy council still exercises to the full one of the most ancient parts of its jurisdiction. Appeals lay from foreign possessions by virtue of the prerogative, but are now generally regulated by statute. The jurisdiction of the High Court of Delegates over ecclesiastical and admiralty cases was transferred to the privy council in 1832. The council lost its probate appeal jurisdiction in 1857, its admiralty jurisdiction in appeals from England in 1875, from Ireland in 1877.
At the present day members of the privy council become so at the will of the crown, but it is understood that persons in certain positions have an ex officio claim to be nominated. The council consists of princes of the royal family or of some of the great officers of state, such as the principal members of the Government, the archbishops and the bishop of London, the judges of the House of Lords, the judicial committee, and the court of appeal, diplomatists of high rank, &c. Members of the privy council have the title of “right honourable” and social precedence next after knights of the Garter. Ireland has its own privy council. Scotland has had none of its own since 6 Anne c. 40, which provided for one privy council for Great Britain. The modern jurisdiction of the privy council may be divided into two branches, administrative and judicial.
Administrative.— This jurisdiction chiefly depends upon statutory authority, which practically makes of the privy council a subordinate legislature. It is exercised either by the whole council or by committees to which matters are referred by the crown in council. Examples of the latter are the board of trade, the committee of council on education, the local government board (see Public Health), the universities committee, with temporary powers under the Universities Act, 1877, and the committee of council for the consideration of charters of incorporation under the Municipal Corporations Act, 1882. Cases affecting the constitutional rights of the Channel Islands are referred to a committee for the affaire of Jersey and Guernsey. The committees report to the crown in council, and their report is adopted and enforced by an order in council, published in the Gazette. Among other Acts conferring administrative powers upon the privy council are the Pharmacy Act, 1852, as amended by 31 & 32 Vict. c. 121, the Medical Act, 1858, the Foreign Enlistment Act, 1870, the Destructive Insects Act, 1877, the Contagious Diseases (Animals) Act, 1878, the Dentists Act, 1878, the Veterinary Surgeons Act, 1881.
Judicial.— Up to 1833 the judicial authority of the privy council was exercised by judicial committees appointed from time to time for the hearing of appeals referred to them by the crown in council. In 1833 the judicial committee of the privy council was established as a permanent court by 3 & 4 Will. IV. c. 41. Under this and later Acts the judicial committee now consists of the lord president, the lord chancellor, and other persons who fill or have filled high judicial offices (all unpaid), of two retired Indian or colonial judges who receive an allowance for attending the sittings of the committee, and of paid members, now two in number, appointed under 34 & 35 Vict. c. 91. The Appellate Jurisdiction Act, 1876, provides for what is in effect the union of the House of Lords and of the privy council in their judicial capacities by the lords of appeal in ordinary gradually becoming judges of both courts. After the death or resignation of the present paid members these two high judicial bodies will be practically combined, and a near approach will be made to the mediaeval magnum concilium in an ultimate court of appeal from the whole of the British dominions.
In proceedings under the Church Discipline Act archbishops and bishops who are members of the privy council are members of the judicial committee, 3 & 4 Vict. c. 86. In proceedings under the Public Worship Act, 1874, archbishops and bishops attend as assessors according to rules made by order in council, 39 & 40 Viet c. 59, § 14. The jurisdiction of the judicial committee is either original or appellate. The original jurisdiction is the less important, and consists of certain powers conferred by the Copyright, Patent, Endowed Schools, and other Acts. The power most frequently exercised is that of extending the term of patents. The appellate jurisdiction is entirely regulated by statute, with the exception of the rarely occurring appeal from orders made by the lord chancellor of Great Britain or of Ireland in exercise of powers conferred by royal sign manual for the custody of idiots and lunatics. Appeals lie from the Arches Court of Canterbury, from a vice-admiralty court abroad, and from the Channel Islands, the Isle of Man, India, and the colonies. Appeals are either of right or by leave. Appeals lie as of right when the value of the matter at issue is of a certain amount (the amount varying according to the appeal rules of the different foreign possessions), and in a few other cases. Appeals lie at the discretion of the judicial committee, on leave being obtained by petition for special leave to appeal. The proceedings in all cases alike, whether original or appellate, are by petition (see Petition). The petition is addressed to the crown in council in the first instance.
See, in addition to the writers on constitutional history, Sir Harris Nicolas, Proceedings and Ordinances of the Privy Council of England ; Dicey, The Privy Council ; Macpherson, Practice of the Judicial Committee of the Privy Council. (J. W+.)
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