ing of it's reaching to 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 reason for it (12); "because the disparagement of "the queen fhall 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 Hen. VIII. c. 18. (repealed, among other statutes of treasons, by 1 Edw. VI. c. 12.) it was made high treason for any man to contract marriage with the king's children or reputed children, his fifters or aunts ex parte paterná, or the children of his brethren or fisters; being exactly the fame degrees, to which precedence is allowed by the ftatute 31 Hen. VIII. before mentioned. And now, by statute 12 Geo. III. c. 11. no defcendant of the body of king George II. (other than the issue of princeffes married into foreign families) is capable of contracting matrimony, without the previous consent of the king fignified under the great feal; and any marriage contracted without fuch confent is void. Provided, that such of the said defcendants, 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 disapprobation of such intended marriage. And all perfons folemnizing, affifting, or being present at any fuch prohibited marriage, hall incur the penalties of the statute of praemunire.

3. 8. For nephews and nieces; under Henry III., Rym. 852:-under Edward I., 2 Rym. 489 :-under Edward III., 5 Rym. 561 ;-under Richard II., Rym. 264-under Richard III., 12 Rym. 232. 244:-under Henry VIII., 15 Rym. 26. 31.

To great nieces; under Edward II., 3 Rym. 575.644. To first cousins; under Edward III., 5 Rym. 177. To fecond

under Henry VII., under queen Eliza

and third cousins; under Edward III., 5 Rym. 729: under Richard II, 7 Rym. 225: under Henry VI., 10 Rym. 322: 12 Rym. 529: beth, Cambd. 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. • Ril. plac. parl. 672.

(12) The occafion of this ftatute was the marriage of Catherine, mother to Hen. VI., with Owen Tudor, a private gentleman, See p. 223.

CHAPTER THE FIFTH.

OF THE COUNCILS BELONGING TO
THE KING.

THE

HE third point of view, in which we are to confider the king, is with regard to his councils. For, in order to affist him in the discharge of his duties, the maintenance of his dignity, and the exertion of his prerogative, the law hath affigned him a diversity 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 use, when there is no parliament in being 2. Accordingly Bracton, speaking of the nobility of his time, fays they might probably be called " "fules, a confulendo; reges enim tales fibi affociant ad confulendum." And in our law books it is laid down, that peers are created for two reasons: 1. Ad confulendum, 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 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.

Co. Litt. 110.
Dl. I. c. 8.

с

ment.

ત

INSTANCES 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 parliaSir 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 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 promifes to affemble before the faid feast, in cafe no parliament fhall be called. Many other instances of this kind of meeting are to be found under our antient kings: though the formal method of convoking them had been so long left off, that when king Charles I., in 1640, iffued out writs under the great feal 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 fo long before been an instance, nor has there been any fince, of affembling them in fo folemn a manner, yet in cases of emergency, our princes have at several times thought proper to call for and confult as many of the nobility as could easily be got together as was particularly the cafe with king James the fecond, after the landing of the prince of Orange; and with the prince of Orange himfelf, before he called that convention parliament, which afterwards called him to the throne.

BESIDES this general meeting, it is ufually 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, fuch 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

d 1 Inft. 110.

C Hift. b. 2.

the

the two Hugh Spencers, father and fon, 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 coun"fellors, to speak with the king, or to come near him; but "only in the presence and hearing of the faid Hugh the "father and Hugh the fon, 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 fir Edward Cokes, 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, fecundum 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 statute 16 Ric. II. c. 5. it was made a high offence to import into this kingdom any papal bulls, or other proceffes from Rome; and it was enacted, that the offenders should 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 underftood the king's judges of his courts of juftice, the subject matter being legal: this being the general way of interpreting 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 fir Edward Coke's defcription of it, 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 constituent of a privy counsellor; and this also regulates their number, which of antient time was twelve or thereabouts. Afterwards it increased to fo large a number, that it was found inconvenient for secrecy and dispatch; and therefore king Charles the fecond in 1679 limited it to thirty: [230]

f

4 Inft 53.

8 I Inft. 110.

b 3 Inft. 125.
14 Inft. 53.

whereof

whereof fifteen were to be the principal officers of ftate, and those to be counsellors virtute officii; and the other fifteen were compofed of ten lords and five commoners of the king's choofing. But fince that time the number has been much augmented, and now continues indefinite (1). At the fame time alfo the antient office of lord prefident of the council was revived in the person of Anthony earl of Shaftsbury(2); an officer, that by the statute of 31 Hen. VIII. c. 10. has precedence next after the lord chancellor and lord treasurer.

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 difcretion.

As to the qualifications of members to fit at this board; any natural-born subject of England is capable of being a mem ber of the privy council; taking the proper oaths for fecurity of the government, and the test for fecurity of the church. * Temple's Mem. part 3.

(1) No inconvenience arifes from the extenfion of their numbers, as thofe only attend who are specially fummoned for that particular occafion upon which their advice and affistance are required. The cabinet council, as it is called, confifts of thofe minifters of state who are more immediately honoured with his majefty's confidence, and who are fummoned to confult upon the important and arduous discharge of the executive authority: their number and selection depend only upon the king's pleafure; and each member of that council receives a fummons or message for every attend

ance.

(2) It appears from the 4 Inft. 55. that this office existed in the time of Ja. I.; for lord Coke fays, "there is, and of antient time hath been, a prefident of the council. This office was never granted but by letters patent under the great feal durante beneplacito, and is very antient; for John bishop of Norwich was president of the council in anno 7 regis Johannis. Dormivit tamen hoc officium regnante magna Elizabetha.

But,