interpretation by the courts below. 283 These cases of "resettlement" should not 
be confused with rehearing. 284 
There can be no doubt from the nature of the proceedings before the Lords 
Committee that we have to do with the exercise of a judicial function. Nevertheless, 
the quality of a judgment cannot be attributed to the Committee report. 
It is a mere tender of advice to the crown, in whom resides the prerogative of 
adjudication. In attempting to clarify the stages of perfecting the final conclusion 
we can do no better than follow Sir Edward Coke, whom the eighteenth-century 
writers themselves parrot. Coke describes the functions of the 
councilor in terms of his oath, emphasizing his advisory capacity and the 
obligation of secrecy in "all that shall be commoned by way of councell." 
Obviously, in proffering a report their Lordships are concerting unanimous 
advice, bearing some resemblance to the modern advisory opinion. For reasons 
never explained, but to this day accepted, the unanimity of the report is deemed 
to avoid the individual's disclosure of his counsel. At the next stage of the 
proceedings, when at the Board itself the sovereign order is to be made, the 
advisory character of the councilors' participation ceases. In Coke's quaint 
words, "they are incorporated to the King himself and bear part of his cares 
. . . the profitable instruments of the state." The Order in Council is again a 
concerted act, but with the accession of the literally sovereign ingredient, the 
King himself, lacking which the decree would be bereft of virtue. 
If all of this has an aura of mysticism, it may be remarked that even in the 
age of enlightenment a great deal about the English crown could not be 
fathomed without thaumaturgical aid. To a lawyer the proper legal definition 
of an Order in Council on appeal is a matter of some theoretical interest, and 
on this point contemporary eighteenth-century juristic comment is lamentably 
silent. The judicial quality of conciliar proceedings is conceded, but we venture 
to suppose no common lawyer would have called the Order in Council a 
judgment, even if emitted in a common law cause. In form and flexibility of 
content the Order resembles a chancery decree, and it stands upon a similar 
theoretical footing. In the first case the King is exercising directly in Council 
(1891), 66; 1 Clarendon, State Papers (1767), 
35- 
283 See Bayly v. Jackson, infra, pp. 342—43. In 
Hyde v. March, a 1761 Jamaica chancery appeal, 
the order below was affirmed, except for 
an August 15, 1759, Master's report, which was 
directed to be reviewed by the Master (PC 2/ 
108/412, 424). Respondent claimed that no 
new evidence should be taken upon review; but 
since the first hearing was ex parte, Hyde desired 
to present his evidence upon review. 
Charles Yorke, consulted in the matter, was of 
the opinion that the conciliar order intended 
the Master to hear new evidence and that he 
would probably understand the order as such. 
If he did not, then another appeal would be 
necessary (Add. MS 36,225/1-2). 
284 For this distinction between resettlement 
and rehearing see Lord Brougham in Rajundernarain 
Rae v. Bijai Govind Sing (1 Moore 
P.C., 117).