recourfe to Sir Edward Coke's interpretation of nephew: And, therefore, when his late Majefty King George II. created his grandfon Edward, the fecond fon of Frederick Prince of Wales deceased, Duke of York, and referred it to the house of lords to fettle his place and precedence, they certified that he ought to have place next to the Duke of Cumberland, the then king's youngest fon; and that he might have a feat on the left hand of the cloth of eftate. But when, on the acceffion of his prefent majefty, those royal perfonages ceafed to take place as the children, and ranked only as the brother and uncle, of the king, they also left their feats on the fide of the cloth of eftate: So that when the Duke of Gloucester, his majesty's fecond brother, took his feat in the house of peers, he was placed on the upper end of the earls' bench (on which the dukes ufually fit) next to his Royal Highnofs the Duke of York. And in 1718, upon a queftion referred to all the judges by King George I, it was refolved, by the opinion of ten against the other two, that the education and care of all the king's grandchildren while minors, did belong of right to his majefty as king of this realm, even during their father's life k. But they all agreed, that the care and approbation of their marriages, when grown up, belonged to the king their grandfather. And the judges have more recently concurred in opinion, that this care and approbation extend alfo to the prefumptive heir of the crown; though to what other branches of the royal family the fame did extend they did not find precifely determined. The most frequent inftances of the crown's interpofition go no farther than nephews and nieces; but examples are not wanting of its reaching to more i Ibid 10 Jan. 1765. 1 Lords' Journ. 28 Feb. 1772. b Lords' Jours. 24 April 1760. k Fortefc. Al. 401.-449,.. m See (befides the inftances cited in Fortescue Aland) for brothers and fifters; under King Edward III. 4 Rym. 392. 403. 411. 501. 508. 512. 549. 683;-under Henry V. 9 Rym. 710. 711. 741;-under Edward IV. 11 Rym. 564. 565. 590. 601-under Henry VIII. 13 Rym. 249. 423 ;-under Edward VI. 7 St. Tr. 3. 8. For nephews and nieces; under Henry III. 1 Rym. 852;-under Edward 1. 2 Rym. 489;-under Edward III. 5 Rym. 561;under Richard II. 7 Rym. 264-under Richard III. 12 Rym. 232, 244;-under Henry VIII, 15 Rym. 26. 31. more diftant collaterals ". And the ftatute 6 Henry VI before mentioned, which prohibits the marriage of a queen dowager without the confent of the king, affigns this reafon for it: "Because the difparagement of the « queen shall give greater comfort and example to other "ladies of eftate, who are of the blood royal, more "lightly to difparage themselves." Therefore, by the ftatute 28 Henry VIII. c. 18. (repealed, among other statutes of treasons, by 1 Edward VI. c. 12.) it was made high treafon for any man to contract marriage with the king's children or reputed children, his fifters or aunts ex parte paterna, or the children of his brethren or filters; being exactly the fame degrees, to which precedence is allowed by the ftatute 31 Henry VIII, before mentioned. And now, by ftatute 12 George III. c. 11. no defcendant of the body of King George II, (other than the iffue of princeffes married into foreign families) is capable of contracting matrimony, without the previous confent of the king, fignified under the great feal; and any marriage contracted without fuch consent is void. Provided, that such of the said descendants, as are above the age of twenty five, may, after a twelvemonth's notice given to the king's privy council, contract and folemnize marriage without the confent of the crown; unless both houses of parliament fhall, before the expiration of the faid year, exprefsly declare their difapprobation of fuch intended marriage. And all perfons folemnizing, affifting, or being prefent at, any fuch prohibited marriage, fhall incur the penalties of the ftatute of praemunire. CHAPTER n To great nieces; under Edward II. 3 Rym. 575. 644. To firft cousins; under Edward III. 5. Rym. 177. To fecond and third coufins; under Edward III. 5. Rym. 729;-under Richard II. 7. Rym. 225-under Henry VI. 10 Rym. 322;-under Henry VII. 12 Rym. 529;-under Queen Elizabeth, Camd. Ann. A. D. 1562. To fourth coufins; under Henry VII. 12 Rym. 329. To the blood royal in general; under Richard II. 7 Rym. 787. o Ril. plac. parl. 672. CHAPTER THE FIFTH, OF THE COUNCILS BELONGING TO THE KING. THE third point of view in which we are to confider the king, is with regard to his councils. For, in order to affift him in the discharge of his duties, the maintenance of his dignity, and the exertion of his prerogative, the law hath affigned him a diverfity of councils to advise with. 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 ufe, when there is no parliament in being. Accordingly Bracton b, fpeaking of the nobility of his time, fays they might properly be called "confules, a confulendo; reges "enim tales fibi affociant ad confulendum." And in our law books it is laid down, that peers are created for two reafons: 1. Ad confulendum; 2. Ad defendendum, regem: On which account the law gives them, certain great and high privileges; fuch as freedom from arrests, c. even when no parliament is fitting; because it intends, that they are always affifting the king with their counsel for the commonwealth, or keeping the realm in fafety by their prowess and valour. Inftances Inftances of conventions of the peers, to advise the king, have been in former times very frequent; though now fallen into difufe, by reafon of the more regular meetings of parliament. Sir Edward Coked 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 fettled by advice of parliament (if any fhould be called before the feast of Saint Lucia) or otherwife by advice of the grand council of peers, which the king promises to affemble before the faid feast, in cale no parfiament fhall be called. Many other inftances of this kind of meeting are to be found under our ancient kings: Though the formal method of convoking them had been fo long left off, that when King Charles I, in 1640 issued out writs under the great feal to call a great council of all the peers of England to meet and attend his majefty at York, previous to the meeting of the long parliament, the Earl of Clarendon mentions it as a new invention, not before heard of; that is, as he explains himself, fo old, that it had not been practifed in fome hundreds of years. But, though there had not fo long before been an inftance, nor has there been any fince, of affembling them in fo folemn a manner, yet, in cafes of emergency, our princes have at feveral times thought proper to call for and confult as many of the nobility as could eafily be got together: As was particularly the cafe with King James II, 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 refpect, fuch matters as he fhall judge of importance to the publick weal. And therefore, in the reign of Edward II, it was made an article of impeachment in parliament against the two Hugh Spencers, dr.Inf. 110. e Hift. b. 2. father father and son, for which they were banifhed, the kingdom," that they, by their evil covin, would not ful"fer the great men of the realm, the king's good counfellors, to speak with the king, or to come near him ; "but only in the prefence and hearing of the faid Hugh "the father and Hugh the fon, or one of them, and at, their will, and according to fuch things as pleafed "them " 3. A third council belonging to the king, are, according to Sir Edward Coke &, 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 underfood, fecundum fubjectam materiam : And, if the fubject 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 ftatute 16 Rich, II. c. 5. it was made a high, offence to import, into this kingdom, any papal bulles, or other proceffes from Rome; and it was enacted, that the offenders fhould be attached by their bodies, and brought before the king and his council to anfwer for fuch offence; here, by the expreffion of the king's council, were understood the king's judges of his courts of juftice, the fubject matter being legal: This being the general way of interpret ing the word council h 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 defcription of it i, is a noble, honourable, and reverend affembly, of the king and fuch as he wills to be of his privy council, in the king's court or palace. The king's will is the fole conftituent of a privy counfellor; and this alfo regulates their number, which of ancient time was twelve or thereabouts. terwards it increased to fo large a number, that it was found inconvenient for fecrefy and difpatch; and therefore King Charles II in 1679 limited it to thirty; whereof Af |