The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface By the American Editor.
• A Memoir of Sir William Blackstone,
• Introduction. of the Study, Nature, and Extent of the Laws of England.
• Section I.: On the Study of the Law. †
• Section II.: Of the Nature of Laws In General.
• Section III.: Of the Laws of England.
• Section IV.: Of the Countries Subject to the Laws of England.
• Commentaries On the Laws of England.
• Book the First. of the Rights of Persons.
• Chapter I.: Of the Absolute Rights of Individuals.
• Chapter II.: Of the Parliament.
• Chapter III.: Of the King, and His Title.
• Chapter IV.: Of the King’s Royal Family.
• Chapter V.: Of the Councils Belonging to the King.
• Chapter VI.: Of the King’s Duties.
• Chapter VII.: Of the King’s Prerogative.
• Chapter VIII.: Of the King’s Revenue.
• Chapter IX.: Of Subordinate Magistrates.
• Chapter X.: Of the People, Whether Aliens, Denizens, Or Natives.
• Chapter XI.: Of the Clergy.
• Chapter XII.: Of the Civil State.
• Chapter XIII.: Of the Military and Maritime States.
• Chapter XIV.: Of Master and Servant.
• Chapter XV.: Of Husband and Wife.
• Chapter XVI.: Of Parent and Child.
• Chapter XVII.: Of Guardian and Ward.
• Chapter XVIII.: Of Corporations.
• Book the Second. of the Rights of Things.
• Chapter I.: Of Property, In General.
• Chapter II.: Of Real Property; And, First, of Corporeal Hereditaments
• Chapter III.: Of Incorporeal Hereditaments.
• Chapter IV.: Of the Feodal System.
• Chapter V.: Of the Ancient English Tenures
• Chapter VI.: Of the Modern English Tenures.
• Chapter VII.: Of Freehold Estates of Inheritance.
• Chapter VIII.: Of Freeholds, Not of Inheritance.
• Chapter IX.: Of Estates Less Than Freehold.
• Chapter X.: Of Estates Upon Condition.
• Chapter XI.: Estates In Possession, Remainder, and Reversion.
• Chapter XII.: Of Estates In Severalty, Joint-tenancy, Coparcenary, and Common.
• Chapter XIII.: Of the Title to Things Real, In General.
• Chapter XIV.: Of Title By Descent.
• Chapter XV.: Of Title By Purchase and I. By Escheat.
• Chapter XVI.: II. Of Title By Occupancy.
• Chapter XVII.: III. Of Title By Prescription.
• Chapter XVIII.: IV. Of Title By Forfeiture.
• Chapter XIX.: V. Of Title By Alienation.
• Chapter XX.: Of Alienation By Deed.
• Chapter XXI.: Of Alienation By Matter of Record.
• Chapter XXII.: Of Alienation By Special Custom.
• Chapter XXIII.: Of Alienation By Devise.
• Chapter XXIV.: Of Things Personal.
• Chapter XXV.: Of Property In Things Personal.
• Chapter XXVI.: Of Title to Things Personal By Occupancy.
• Chapter XXVII.: Of Title By Prerogative and Forfeiture.
• Chapter XXVIII.: Of Title By Custom.
• Chapter XXIX.: Of Title By Succession, Marriage, and Judgment.
• Chapter XXX.: Of Title By Gift, Grant, and Contract.
• Chapter XXXI.: Of Title By Bankruptcy.
• Chapter XXXII.: Of Title By Testament, and Administration.
• Appendix.
• No. I.: Vetus Carta Feoffamenti.
• No. II.: Modern Conveyance By Lease and Release.
• No. III.: An Obligation, Or Bond, With Condition For the Payment of Money.
• No. IV.: A Fine of Lands Sur Cognizance De Droit, Come Ceo, &c.
• No. V.: A Common Recovery of Lands With * Double Voucher.

CHAPTER V.

OF THE COUNCILS BELONGING TO THE KING.

The third point of view, in which we are to consider the king, is with regard to his councils. For, in order to assist him in the discharge of his duties, the maintenance of his dignity, and the exertion of his prerogative, the law hath assigned him a diversity of councils to advise with.1

1. The first of these is the high court of parliament, whereof we have already treated at large.

2. Secondly, the peers of the realm are by their birth hereditary counsellors of the crown, and may be called together by the king to impart their advice in all matters of importance to the realm, either in time of parliament, or, which hath been their principal use, when there is no parliament in being.(a) Accordingly Bracton,(b) speaking of the nobility of his time, says they might probably be called “consules, a consulendo; reges enim tales sibi associant ad consulendum.” And in our law books(c) it is laid down, that peers are created for two reasons: 1, ad consulendum 2, ad defendendum regem: on which account the law gives them certain great and high privileges; such as freedom from arrests, &c., even when no parliament is sitting: because it intends, that they are always assisting the king with their counsel for the commonwealth, or keeping the realm in safety by their prowess and valour.

**228]Instances of conventions of the peers, to advise the king, have been in former times very frequent, though now fallen into disuse by reason of the more regular meetings of parliament. Sir Edward Coke(d) gives us an extract of a record, 5 Hen. IV., concerning an exchange of lands between the king and the earl of Northumberland, wherein the value of each was agreed to be settled by advice of parliament, (if any should be called before the feast of Saint Lucia,) or otherwise by advice of the grand council of peers, which the king promises to assemble before the said feast, in case no parliament shall be called. Many other instances of this kind of meeting are to be found under our ancient kings; though the formal method of convoking them had been so long left off, that when king Charles I. in 1640 issued out writs under the great seal, to call a great council of all the peers of England to meet and attend his majesty at York, previous to the meeting of the long parliament, the earl of Clarendon(e) mentions it as a new invention, not before heard of; that is, as he explains himself, so old that it had not been practised in some hundreds of years. But, though there had not so long before been an instance, nor has there been any since, of assembling them in so solemn a manner, yet in cases of emergency our princes have at several times thought proper to call for and consult as many of the nobility as could easily be got together; as was particularly the case with king James the Second, after the landing of the prince of Orange, and with the prince of Orange himself, before he called that convention-parliament, which afterwards called him to the throne.

Besides this general meeting, it is usually looked upon to be the right of each particular peer of the realm to demand an audience of the king, and to lay before him, with decency and respect, such matters as he shall judge of importance to the public weal. And therefore, in the reign of Edward II., it was made an article of impeachment in parliament against *[*229the two Hugh Spencers, father and son, for which they were banished the kingdom, “that they by their evil covin would not suffer the great men of the realm, the king’s good counsellors, to speak with the king, or to come near him, but only in the presence and hearing of the said Hugh the father and Hugh the son, or one of them, and at their will, and according to such things as pleased them.”(f)

3. A third council belonging to 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 Edw. 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 st. 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 the 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)2

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,(i) is a noble, honourable, 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 ancient time was twelve or thereabouts. Afterwards it increased to so large a number that it was found inconvenient for secrecy and dispatch; and *[*230therefore king Charles the Second, 1679, limited it to thirty; whereof fifteen were to be the principal officers of state, and those to be counsellors, virtue 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.3 At the same time, also, the ancient 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 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.

As to qualifications of members to sit at this board: any natural-born subject of England is capable of being a member of the privy council, taking the proper oaths for security of the government, and the test for security of the church.5 But, in order to prevent any person under foreign attachments from insinuating themselves into this important trust, as happened in the reign of king William in many instances, it is enacted by the act of settlement,(l) that no person born out of the dominions of the crown of England, unless born of English parents, even though naturalized by parliament, shall be capable of being of the privy council.

The duty of a privy counsellor appears from the oath of office,(m) 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, reward, doubt, or dread. 3. To keep the king’s council secret. 4. To avoid corruption. 5. To help and strengthen the execution of what **231]shall be there resolved. 6. To withstand all persons who shall 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.

The power of the privy council is to inquire into all offences against the government, and to commit the offenders to safe custody, in order to take their trial in some of the courts of law. But their jurisdiction herein is only to inquire, 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 star-chamber, 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 or idiocy,(n) 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 cases, or rather the appeal lies to the king’s majesty himself in council. Whenever also a question arises between two provinces in America, or elsewhere, as concerning the extent of their charters and the like, the king in his council exercises original jurisdiction therein, upon the principles of feodal sovereignty. And so likewise when any person claims an island or a province, in the nature of a feodal principality, by grant from the king or his ancestors, the determination of that right belongs to his majesty in council: as was the case of the earl of Derby with regard to the Isle of Man, in the reign of queen Elizabeth; and the earl of Cardigan and others, as representatives of the duke of Montague, with relation to the island of St. Vincent, in 1764. But from all the dominions of the crown, excepting Great Britain and Ireland, an appellate jurisdiction *[*232(in the last resort) is vested in the same tribunal; which usually exercises its judicial authority in a committee of the whole privy council, who hear the allegations and proofs, and make their report to his majesty in council, by whom the judgment is finally given.6

The privileges of privy counsellors, as such, (abstracted from their honorary precedence,)(o) consist principally in the security which the law has given them against attempts and conspiracies to destroy their lives. For by statute 3 Hen. VII. c. 14, if any of the king’s servants of his household conspire or imagine to take away the life of a privy counsellor, it is felony, though nothing be done upon it. The reason of making this statute, Sir Edward Coke(p) tells us, was because such a conspiracy was, just before this parliament, made by some of king Henry the Seventh’s household servants, and great mischief was like to have ensued thereupon. This extends only to the king’s menial servants. But the statute 9 Anne, c. 16, goes further, and enacts that any person that shall unlawfully attempt to kill, or shall unlawfully assault, and strike, or wound, any privy counsellor in the execution of his office, shall be a felon without benefit of clergy. This statute was made upon the daring attempt of the Sieur Guiscard, who stabbed Mr. Harley, afterwards earl of Oxford, with a penknife, when under examination for high crimes in a committee of the privy council.

The dissolution of the privy council depends upon the king’s pleasure; and he may, whenever he thinks proper, discharge any particular member, or the whole of it, and appoint another. By the common law, also, it was dissolved ipso facto by the king’s demise, as deriving all its authority from him. But, now, to prevent the inconveniences of having no council in being at the accession of a new prince, it is enacted by statute 6 Anne, c. 7 that the privy council shall continue for six months after the demise of the crown, unless sooner determined by the successor.

[1 ] “The President of the United States shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur; and he shall nominate and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers, and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not otherwise provided for by the constitution. He may likewise require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices.” Const. U. S. art. 11.

The heads of the different executive departments constitute the Cabinet of the President. They are the Secretaries of State, of the Treasury, of War, of the Navy, of the Interior, the Postmaster-General, and the Attorney-General.—Sharswood.

[(a) ] Co. Litt. 110.

[(b) ] L. 1, c. 8.

[(c) ] 7 Rep. 34, 9 Rep. 49, 12 Rep. 96.

[(d) ] 1 Inst. 110.

[(e) ] Hist. b. 2.

[(f) ] 4 Inst. 53.

[(g) ] 1 Inst. 110.

[(h) ] 3 Inst. 125.

[2 ] The king’s power to consult the judges extra-judicially, although not without precedent in former times, is now much disputed, and has of late rarely been exercised.—Stewart.

The passage referred to in the 3 Inst. is no authority for the interpretation given to the word “council” in the statute of Richard; for it is a comment on the statute of præmunire, 27 Edw. III, st. 1, c. 1, where the word seems used in the same sense as in the first-mentioned statute, and in which lord Coke states that it cannot mean the judges. The truth is, I believe, that the council here mentioned was a court of very extensive equitable jurisdiction both in civil and criminal matters, the fountain from which in process of time the courts of chancery and starchamber were derived. Its history has never been satisfactorily traced, nor its jurisdiction and functions clearly distinguished from those of the council of the peers or the great council in parliament. Perhaps it is too late to expect that this can ever be now done so as to free the subject from all doubts; but I have reason to hope that very great light will be thrown upon it, and therein upon the origin of all equitable jurisdiction in this country, by a gentleman who is devoting himself to the legal antiquities of the country with an industry and intelligence that promise to overcome great difficulties.—Coleridge.

Subsequent researches have fully justified Mr. Justice Coleridge’s opinion. Reports of the Committee on the Privileges of the Peerage, passim. Sir Harris Nicolas’s “Proceedings and Ordinances of the Privy Council of England,” printed under the direction of the Commissioners of the Public Records. Hallam’s Const. Hist. vol. i. chap. 1.—Kerr.

[(i) ] 4 Inst. 53.

[(k) ] Temple’s Mem. part 3.

[3 ] No inconvenience arises from the extension of their numbers, as those only attend who are specially summoned for that particular occasion upon which their advice and assistance are required. The cabinet council, as it is called, consists of those ministers of state who are more immediately honoured with his majesty’s confidence, and who are summoned to consult upon the important and arduous discharge of the executive authority. Their number and selection depend only upon the king’s pleasure; and each member of that council receives a summons or message for every attendance.—Christian.

The nomination of particular persons to hold offices of state is virtually to constitute them members of the cabinet or cabinet-ministers,—that is to say, the administration. Thus, by “The Cabinet” or “Administration” is generally understood the lord president of the council, the lord high-chancellor, the lord privy seal, the first lord of the treasury, the chancellor and under-treasurer of the exchequer, the first lord of the admiralty, the master general of the ordnance, the secretaries of state for the home department, colonies, and foreign affairs, the president of the board of control for the affairs of India, the chancellor of the duchy of Lancaster, and the president of the board of trade. But even of these great officers the attendance of all of them is not, I believe, always required, but only secundum subjectam materiam to be agitated.—Chitty.

[4 ] It appears from the 4 Inst. 55 that this office existed in the time of James I.; for lord Coke says there is, and of ancient time hath been, a president of the council. This office was never granted but by letters patent under the great seal durante beneplacito, and is very ancient; for John, bishop of Norwich, was president of the council in anno 7 regis Johannis. Dormivit tamen hoc officium regnante magnâ Elizabethâ.—Christian.

[5 ] The sacramental test, as a qualification for certain offices, is repealed by the stat. 9 Geo. IV. c. 17, and stat. 2 Gul. IV. c. 7, and a declaration substituted in lieu thereof, by which the party professes, upon the true faith of a Christian, that he will never exercise any power, authority, or influence which he may possess, by virtue of his office, to injure or weaken the protestant church as it is by law established in England, or to disturb the said church, or the bishops and clergy of the said church, in the possession of any rights or privileges to which such church, or the said bishops and clergy, are or may be by law entitled.

By the statute of 10 Geo. IV. c. 7 the necessity of making any declaration against transubstantiation, invocation of saints, and the sacrifice of the mass as practised in the church of Rome, as a qualification for the exercise or enjoyment of any office or civil right, is repealed; and instead of the oaths of allegiance, supremacy, and abjuration, as qualifications for holding civil or military offices, Roman Catholics are required to take the oath set forth in the said act.—Hoveden.

[(l) ] Stat. 12 and 13 Will. III. c. 2.

[(m) ] 4 Inst. 54.

[(n) ] 3 P. Wms. 108.

[6 ] The court of privy council cannot decree in personam in England, unless in certain criminal matters; and the court of chancery cannot decree in rem out of the kingdom. See lord Hardwicke’s Arg. in Penn vs. Baltimore, 1 Ves. 444, where the jurisdiction of the council and chancery, upon questions arising upon subject matter abroad, is largely discussed. The master of the rolls and the judge of the admiralty court are usually members of this committee.—Christian.

The jurisdiction and power of the privy council were entirely remodelled by 3 & 4 Wm. IV. c. 41, which created “the judicial committee of the privy council.” This committee is composed of the president of the council, the lord chancellor, the two chief justices and chief baron, master of the rolls, vice-chancellor, and other judicial officers. It has jurisdiction over all appeals made to the king in council from the courts of admiralty or any other court in the plantations of America, and other his majesty’s dominions abroad.—Hargrave.

[(o) ] See page 405.

[(p) ] 3 Inst. 38.