Gaps in the Published Records of United States DOCUMENTS - Letters of Gideon J. Pillow to James K. Polk, 1844; Apolinario The American Historical Review EARLY RECORDS OF THE KING'S COUNCIL1 THE HE early history of the privy council is a subject that has been left in much obscurity. This is largely because there have seemed to be no records of its acts and proceedings before the reign of Richard II. While much concerning the council of the fourteenth century may be gathered from various collateral sources, it has seemed to some that in the lack of more direct evidence our knowledge of the subject cannot be clear and definite. It has been thought too that the council can not be considered a distinct and mature body before the beginning of its records. Says Dicey, "The conjecture is therefore natural that the council's acts were first accurately recorded when its existence as a separate institution was for the first time recognized." This time was understood to be the reign of Richard II., which has been taken as marking a special change in the council's development. Much therefore hinges upon the question when such records were actually first made. The famous collection of Sir Harris Nicolas, entitled Proceedings and Ordinances of the Privy Council, contains for its first entry a record of the tenth year of Richard II. That the same eminent author and editor subsequently discovered two isolated instances of council minutes of earlier date, belonging to the years 1337 and 1341 respectively, which he presented in his History of the Royal 'The term king's council rather than privy council was generally used in the fourteenth and most of the fifteenth century. 2" Its history can only be traced in its proceedings and until those proceedings are collected and printed, he [the author] is persuaded that anything which could be written would be unworthy of attention, because it must be formed of speculations founded upon most imperfect premises." Nicolas, Proceedings of the Privy Council, Vol. I., p. vi. 3 Dicey, Privy Council, p. 25. "The privy council, from the reign of Richard II. onwards, although it inherited and amplified the functions of the permanent council of Edward I., differed widely in its organization." Stubbs, Constitutional History, II. 274. (1) AM. HIST. REV VOL. XI.-I. Navy,' has been generally overlooked. It would be strange indeed were these the only instances during a period of fifty years when minutes of the kind were made. Now a search among the archives of the Public Record Office reveals that there is an abundance of such material, not only of earlier date than anyone has stated, but also of later times, which have not been utilized. In view of their bearing upon the history of the council, it seems useful to give an account of these newly found manuscripts. They are of various kinds, corresponding to the different proceedings of the council. The earliest and simplest form of record made by the council was in connection with the petitions, of which thousands were received. It is well known how suitors addressed petitions to the king and council seeking remedies which they could not obtain from the ordinary courts. The responses were made regularly upon the backs of the same strips of parchment, in words as few as possible. As the council did not usually try cases, the endorsements consisted of brief directions to the suitors, the judges, or the chancellor to the effect that the parties should sue at common law, or in the chancery, that writs should be issued, that judgment be rendered, and the like. The response assumed greater length when a point of law had to be explained. Not that all of the numberless responses were actually made by the council, for there were hearers and triers of petitions appointed to do much of the work. But it is plain that even too much of the council's time was spent in the hearing of private petitions. The function of the council in the way of receiving and answering petitions has been adequately described by the ablest writers. This much, however, it is necessary to recall as furnishing a clue to the council's proceedings in other matters, for the process of petition and response was followed in all kinds of business, public as well as private. It was in a manner analogous to that followed with the small private petitions, that the council was accustomed to deal with state questions submitted to it. The usual form in which matters. for the consideration of the council were stated, consisted of a series of articles, each article being a distinct petition or proposition. A characteristic title upon one document of this kind reads, fait a remembrer des choses a monstreres au conseil nostre seigneur le Roi. Such a document constituted a kind of agenda, which could 1 Nicolas, History of the Royal Navy, II. 188-192. 2 See Hale, Jurisdiction of the House of Lords; Maitland, Memoranda of the Parliament of 1305; and Stubbs, Constitutional History, II. 275. 3 Parliamentary Proceedings, Chancery, file VII, no. 19. The collection under this title in the Public Record Office is newly compiled, and contains much material, relating both to Parliament and to the council, which has not been available before. be considered point by point. Upon the wide margins and between the paragraphs of such a parchment could be written the responses or decisions of the council to each point. In case the articles were accepted in their entirety the inscription was a simple matter.' It will illustrate a whole class of documents to describe one which belongs to the second year of Edward III.2 In this John Darcy lays before the council a series of petitions in sixteen articles, stating the conditions upon which he is willing to go to Ireland as chief justice. He asks that certain men whom he names be placed in office as his associates; that the chief justice have powers of supervision over other officers; that he have the power to pardon for felony; that no grants in Ireland be made without consulting the justice and others of the council there; that it be granted by statute that all Irishmen wishing to use English laws be permitted to do so without having to buy charters for the privilege. The answers of the council are inserted between the lines and in the margins in a handwriting clearly different from the former. Most of the propositions were accepted with some modification. Some of the names suggested were scratched out and others substituted. As to the granting of pardons, it was answered that it seemed better that the power should not be exercised without consulting the king. As to the Irish freely enjoying English law, the justice was to get the opinion of the next Irish parliament. Other items were accepted. with a simple fiat. The decisions thus reached were put into execution on the authority of “king and council," according to the attestations upon the letters of great seal that were forthwith issued.3 There is a document of the year 1311 which was one of a number coming from Gascony, perhaps having been drawn up in the king's council there, as others were. It consists of a series of articles, punctuated with the words, item intimandum est, item consilium est, etc., written in a provincial Latin strange to England. Most likely it was considered at the small council summoned at York for February 27, 1312, to confer on affairs of Aquitaine. The items in detail specify that the mayor and jurati of Bordeaux are increasing the taxes, that many officers commit excesses while the 1 Upon one of the documents occurs the following marginal note in an unclerkly hand: ceux articles sont lues devant le Roi et le conseil et sont acordez en touz pointz. Parliamentary Proceedings, VII. 24. 2 Parliamentary Proceedings, VI. 10. 3 Calendar of Patent Rolls, 2 Edw. III., p. 316; Calendar of Close Rolls, p. 312. 4 Diplomatic Documents, Chancery, p. 114. This is another file into which many of the council documents have fallen. 5 Parliamentary Writs, II. 71. country is distracted by war, that commissioners with plenary powers should be appointed, that the castles of Bordeaux need repair, that in the law-cases pending in the court of the king of France subjects of the king of England should be treated fairly, and that for use in these cases evidence should be diligently sought for in the king's treasury. The responses of the council are written in a small cramped hand between the several paragraphs. Many of the questions were referred to the seneschal of Gascony, who was to act with the advice of the king's council of that part. Some of the answers are made with the additional confirmation, " placet regi," while in some instances it was required, "informetur rex." As in other cases of the kind, the responses were the basis for executive orders, the appointment of a commission to Paris being upon the close roll of the same year in accordance with the Gascon petition.1 That the procedure which has been illustrated in the foregoing examples was followed in much the same way by the king's council of Gascony, there is evidence in a large document of the year 1320.2 It contains certain petitions from Agen and other towns asking for various franchises and for reforms in the Agenais. The articles from the towns having been first submitted to the seneschal and council of Gascony, received certain amendments at their hands, which are incorporated in the manuscript.3 In this form they were sent to England, where they were submitted to the council, the responses being inscribed in the usual manner. All the petitions were accepted but one, about which there was to be further deliberation.* Considering the documents as respects their form, the result was different when at greater length responses to petitions were rendered upon separate parchments. Of the year 1334 there is a voluminous petition coming from the seneschal and council of Gascony to the king and council in England, consisting of twenty-nine articles relating to the aggressions of the king of France. A short inscription on one of the pages describes how the answers of the 1 Calendar of Close Rolls, 6 Edw. II., p. 488. 2 Chancery Miscellaneous Rolls, 5/16. How the petitions were treated is told in the document itself. (Articulos) quos dominus Guillelmus de Monte Acuto quondam senescallus Vasconie una cum responsionibus dictorum articulorum et avisationibus per ipsum et vestrum consilium illarum partium inde factis vobis remisit, et quos post modum vos remisistis sub pede sigilli vestri senescallo Vasconie et mandastis observari nuper responses eis factas, etc. 4 Postmodum exhibitis dictis articulis et diligenter examinatis visum est consilio quod poterunt confirmari salvo jure Regis excepto XXmo de quo deliberaretur. 5 Chancery Miscellaneous Rolls, 5/22. |