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matrimony, without the previous consent of the king signified under the great seal; and any marriage contracted without such consent is void. Provided, that such of the said descendants, as are above the age of twenty-five, may after a twelve month's notice given to the king's privy council, contract and solemnize marriage without the consent of the crown; unless both houses of parliament shall, before the expiration of the said year expressly declare their disapprobation of such intended marriage. And all persons solemnizing, assisting, or being present at, any such prohibited marriage, shall incur the penalties of the statute of præmunire.

6 Previously, "and the care and approbation of their marriages, when grown up, did belong of right to his majesty as king of this realm, during their father's life.h [h Fortesc. A1. 401-440.] And this may suffice for the notice, taken by law of his majesty's royal family."

4 The fourth edition inserts here, "even."

CHAPTER THE FIFTH.

OF THE COUNCILS BELONGING TO THE KING.

The third point of view, in which we are to consider the king, is with regard to his councils. For, in order to assist him in the discharge of his duties, the maintenance of his dignity, and the exertion of his prerogative, the law hath assigned 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. Accordingly Bracton, speaking of the nobility of his time, says they might properly be called "consules, a consulendo; reges enim tales sibi associant ad consulendum." And in our law books it is laid down, that peers are created for two reasons: 1. Ad consulendum, 2. Ad defendendum regem: for which reasons the law gives them certain great and high privileges; such as freedom from arrests, etc., even when no parliament is sitting: because the law intends, that they are always assisting the king with their counsel for the commonwealth; or keeping the realm in safety by their prowess and valor.

[228] Instances of conventions of the peers, to advise the king, have been in former times very frequent; though now fallen into disuse, by reason of the more regular meetings of parliament. Sir Edward Coke a gives us an extract of a record, 5 Hen. IV., concerning c 7 Rep. 34. 9. Rep. 49. 12. Rep. 96. d 1 Inst. 110.

a Co. Litt. 110.

b l. 1. c. 8.

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 St. Lucia) or otherwise by advice of the grand council of peers which the king promises to assemble before the said feast, in case no parliament shall 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 issued out writs under the great seal 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 Clarendone mentions it as a new invention, not before heard of; that is, as he explains himself, so old, that it had not been practiced in some hundreds of years. But, though there had not so long before been an instance, nor has there been any since, of assembling them in so solemn a manner, yet, in cases of emergency, our princes have at several times thought proper to call for and consult as many of the nobility as could easily be got together: as was particularly the case with king James the second, 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 respect, such 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 [229] the two Hugh Spencers, father and son, for which they were banished the kingdom, "that they by their evil covin would not

e Hist. b. 2.

suffer the great men of the realm, the king's good counsellors, to speak with the king, or to come near him; but only in the presence and hearing of the said Hugh the father and Hugh the son, or one of them, and at their will, and according to such things as pleased them."

3. A third council belonging to the king, are, according to sir Edward Coke,s 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, secundum 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 bulles, or other processes from Rome; and it was enacted, that the offenders should be attached by their bodies, and brought before the king and his council to answer for such offence; here, by the expression of king's council, were understood the king's judges of his courts of justice, the subject matter being legal: this being the general way of interpreting the word, council.

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 description of it, is a noble, honourable, and reverend assembly, of the king and such as he wills to be of his privy council, in the king's court or palace. The king's will is the sole constituent of a privy counsellor; and this also regulates their number, which of antient times was twelve or thereabouts. Afterwards it increased to so large a number, that it was

f 4 Inst. 53. g 1 Inst. 110.

h 3 Inst. 125.

i 4 Inst. 53.

found inconvenient for secrecy and dispatch: and [230] therefore king Charles the second in 1679 limited it to thirty whereof fifteen were to be the principal officers of state, and those to be counsellors, virtute officii; and the other fifteen were composed of ten lords and five commoners of the king's choosing. But since that time the number has been much augmented, and now continues indefinite. At the same time also, the antient office of lord president of the council was revived in the person of Anthony earl of Shaftsbury; 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 discretion.

5 As to the qualifications of members to sit at this board: any natural born subject of England is capable of being a member of the privy council; taking the proper oaths for security of the government, and the test for security of the church. But, in order to prevent any persons under foreign attachments from insinuating themselves into this important trust, as happened in the reign of king William in many instances, it is enacted by the act of settlement,1 that no person born out of the dominions of the crown of England, unless born of English parents, even though naturalized by parliament, shall be capable of being of the privy council.5

The duty of a privy counsellor appears from the oath of office, which consists of seven articles: 1. To advise k Temple's Mem. part 3.

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5 In the first four editions these three paragraphs stood in the order, duty, power, qualifications.

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