fir Edward Coke's interpretation of nephew: and therefore when his late majesty king George II. created his grandfon Edward, the second son 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 late 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 majesty, those royal perfonages ceased 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 houfe of peers', he was placed on the upper end of the earl's bench (on which the dukes ufually fit) next to his royal highnefs 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 (11). 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 also 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 far. [226] ther than nephews and nieces"; but examples are not want Lords' Journ. 24 Apr. 1760. Ibid. 10 Jan. 1765, k Fortefc. Al. 401–440. I Lords' Journ. 28 Feb. 1772. m See (befides the inftances cited in Fortescue Aland) for brothers and fifiers; under king Edward III., 4 Rym. 392, 3. 8. (11) The authorities and arguments of the two diffenting judges, Price and Eyre, are so full and cogent, that if this question had arifen before the judges were independent of the crown, one would have been inclined to have fufpected the fincerity of the other ten, and the authority of the deci on. See Harg. St. Tr. 11 vol. 295 · X 4 ing And the ing of it's reaching to more diftant collaterals". 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 ftatutes of treafons, 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 paterna, or the children of his brethren or fifters; being exactly the fame degrees, to which precedence is allowed by the ftatute 31 Hen. VIII. beforementioned. And now, by ftatute 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 confent of the king fignified under the great feal; and any marriage contracted without fuch confent is void. Provided, that fuch of the faid 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 consent of the crown; unless both houfes of parliament fhall, before the expiration of the faid year, exprefsly declare their disapprobation of fuch intended marriage. And all perfons folemnizing, affisting, or being present at, any such prohibited marriage, fhall incur the penalties of the ftatute of praemunire. 3.8. For nephews and nieces; under Henry III., 1 Rym. 852:-under Edward I., 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. "To great nieces; under Edward II., 3 Rym. 575. 644. To first cousins; under Edward III., 5 Rym. 177. To fecond and third cousins, 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. Το fourth coufins; under Henry VII., 12 Rym. 329. To the blood-royal in ge peral; 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 THE COUNCILS BELONGING то HE 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 difcharge 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, speaking of the nobility of his time, fays they might probably be called "confules, a confulendo; reges enim tales fibi affociant ad confu"lendum." 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: fuch as freedom from arrefts, &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 prowefs and valour. ⚫ Co. Litt. 110. J. 1, 6. 8, 7 Rep. 34. 9 Rep. 49. 12 Rep. 96. INSTANCES ment. 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 parlia 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 feaft of faint Lucia,) or otherwise by advice of the grand council of peers which the king promifes to affemble before the faid feaft, in cafe no parliament fhall be called. Many other inftances 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 mentions it as a new invention, not before heard of; that is, as he explains himself, fo old, that it had not been practised in fome hundreds of years. But, though there had not so 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 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 himself, 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 fhall judge of importance to the public weal. And therefore, in the reign of Edward II., was made an article of impeachment in parliament againft di Inft. 110. I HA. 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 fuffer 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 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 pleased them “.” 3. A THIRD Council belonging to the king, are, according to fir Edward Coke, his judges of the courts of law, for Jaw 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 fubjectam 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 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 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 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 sole 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 fecrefy and dispatch; and therefore king Charles the fecond in 1679 limited it to thirty; [230] |