Great Council or to form the subject of their deliberations. "The Council," it has been observed in reference to the time of Edward the First, "was evidently then considered as a very important part of the Government, responsible to the King and the country for the acts done under its sanction; and the people often took great interest in its proper formation, of which there are striking instances in the reigns of Henry the Third and of Edward the Second." In a record of Edward the Second,† Walter of Norwich, an old and meritorious servant of the Crown, on retiring from the active duties of public life is, amongst other marks of Royal favour, appointed to attend the King's councils "as well secret as otherwise." The distinction thus drawn seems to indicate the point at which the functions of the council begin to diverge. The great Lords who advised the Crown on its general policy neither needed nor desired the opinions of the judges and other officials on matters of state nor could they have wished, except in some rare instances, to be troubled with the laborious business of judicature or of official routine. The business of the council thus spontaneously divided itself into two parts, into that which was confidential and was transacted privately, and into that which was public and was transacted with more or less of publicity. The former class, that pertaining to matters of state, belongs to the Privy Council, properly so called. The latter class gave rise to the several institutions of which I shall presently treat. The administrative history of the Privy Council may for our present purpose be briefly told. It was, as I have said, the constant council of the King in all weighty matters of state. Without its advice no resolution of the Crown, whether as to foreign alliances or the issue of orders or of * I Lords' Report, 451. Madox, Hist. Ex., ii. 59. proclamations at home or other public acts, was finally adopted. It was in fact a board for the management of the general administrative Government. In a body so constituted the increase of public business was sure to produce a change. By degrees differentiations began to appear. What the Chancellor was in the judicial department, the Secretary of State was in the administrative department. Originally merely officers of the council, they became leading members of it, and ultimately attracted to themselves in their respective branches a great part of its authority. The Chancellor seems to have acted in early times as the King's private secretary. When his judicial duties began to increase, he was relieved by the appointment of a secretary under that title. About the accession of Henry the Eighth, the King's Secretary had become an officer of great consideration. In an act of the thirty-first year of that reign which regulates precedence among persons holding various great offices, the King's Chief Secretary is included, but is ranked last. Through the hands of this officer the diplomatic correspondence naturally passed.* After the peace of Westphalia, in 1648, it became the practice of European Kings, instead of sending embassies upon special occasions, to keep resident ambassadors at foreign courts. A great increase in the foreign correspondence naturally followed this change, and the importance of the Secretary increased with it. The attempt which Lord Clarendon made about the same period for a systematic division of the Privy Council into committees for the despatch of business, and to which I have previously referred, shows that the inconvenience of such a body as the council for the transaction of business was then felt. Several attempts were made to revive the former system, but the opposite tendency was See Cox's Inst. of Eng. Govt., 662. too strong. The number of the secretaries increased; the business of the council was distributed among them and the other departments; and the duty of general superintendence was performed by a special committee of the Privy Council known as the Cabinet. I have already It endeavoured to trace the history of this institution. now, therefore, only remains to consider the history of the judicial powers that belonged to the council. * § 5. The King's Council had various functions and transacted its business in various departments. There were several chambers of council in the palace at Courts deWestminster. We read of the Chamber of the scended from Ordinary Chequered Cloth, the Chamber of the Green Council. Cloth, the Starred Chamber, the Painted Chamber, the White Chamber, the Chancery, Markolf's Chamber (so called from the legend depictured on its walls of the tests applied to the wisdom of Solomon by a Syrian peasant),† and other similar apartments. These various chambers, several of which are noticed in an Act of Parliament of the reign of Edward the Third, served to mark the distinction between the different functions of the council. That body sat in a particular chamber for the transaction of particular business. Two of these divisions, the Exchequer and the Chancery, were from the first more distinctly marked than the rest. They were indeed regularly organized departments, with their appropriate staff, and offices in which the council used sometimes to meet. The Exchequer had charge of the Royal lands and revenues; and in cases connected therewith, the council, sitting in the Exchequer, and forming the Royal Chamber of Accounts, exercised a summary jurisdiction. At this meeting * 4 Inst., 131. + Palgrave, Essay on the King's Council, 38. of council, as at other such meetings, the Chief Justiciar, the highest functionary of the realm, originally presided. The Chancellor also frequently attended in the Exchequer, kept his Great Seal there, and transacted in it such business as concerned him. But gradually with the increase of business the separation of functions began. About the time of Richard the First, probably in the beginning as an accidental result of certain official changes, the attendance of the Chancellor was discontinued; and distinct Rolls were made up in Chancery and certified into the Exchequer. In the thirty-fourth year of Henry the Third, the then Chief Justiciar De Segrave was dismissed; no successor for some time was appointed; but a new office, that of Chancellor of the Exchequer, seems to have been created, and persons apparently of special qualifications were appointed to discharge the duties of Barons.+ The style of the Exchequer was subsequently altered from the Chief Justiciar and Barons to the Treasurer and Barons.‡ It seems, however, to have been competent for any member of the council to have attended the Exchequer, and taken share in its business. In the reign of Edward the Second, § Walter of Norwich, who had long and well served the Crown, was appointed, in recognition of his services and with a view to the continuance of his attendance without personal inconvenience, Chief Baron of the Exchequer. The office was subsequently continued, and was usually filled by a sergeant-at-law. Three points in the history of this court deserve attention. It was, as we have seen, directly descended from the Concilium Ordinarium. It was not, in the proper sense of the term, a Court of Common Law. It was continually striving to extend its jurisdiction so as to include Common * Madox, Hist. Ex., i. 196. + Foss's Judges, iii. 3. § Madox, Hist. Ex., ii. 59. Ib., ii. 195. Pleas. On the first point enough has been already said. Of the inferiority of the Exchequer to the two Benches, or rather its dissimilar position, there are many proofs. The Barons are not within the Statute of Treasons, but the Justices are. The statutes of Nisi Prius* make no mention of the Court of Exchequer, but relate exclusively to the two Benches. In the latter of these Acts there is indeed a reference to the Exchequer, but it is of a very significant kind. It enumerates among the persons before whom Nisi Prius may be held the Chief Baron, “if he be a man of the law." It would thus appear, and this view is confirmed by the history of the persons who have filled the office of Chief Baron, that it was usual to have at the head of the court a professional lawyer, and that the services of this officer were used in the same manner as those of any other high legal officer of the Crown. The original writs, too, were never made returnable to the Court of Exchequer, but always to either Bench, according to their several natures; and an appeal from proceedings in the Exchequer lay not to the King's Bench, but to a special committee of the council. § Some minor incidents || also furnish strong evidence in the same direction. The Barons were never present at the conferences of the Judges, although the Chief Baron and the Attorney and SolicitorGeneral were. The Barons did not go on circuit, although Sergeants were frequently sent. The value of the rings. given by Sergeants on their admission was less in the case of the Barons, and even of the Chief Baron, than in the case of the Justices. We find, too, that George Freville, Baron of the Exchequer, was while he held that office a 13 Edw. I. c. 30, and 14 Edw. III. c. 16. + See Barrington, Anc. Stat., 137, 249. 1 Spence, Eq. Jur., 226, n. § 31 Edw. III. St. i. c. 12; 2 Reeves, Hist. of Eng. Law, 423. Foss's Judges, v. 417. |