[approbation of their marriages, when grown up, belonged to the king their grandfather. And the judges have more recently concurred in opinion (x), that this care and approbation extend also to the presumptive heir of the crown; though to what other branches of the royal family the same did extend, they did not find precisely determined. The most frequent instances of the crown's interposition go no further than nephews and nieces (y); but examples are not wanting of its reaching to more distant collaterals (z). And the statute 6 Henry VI. before mentioned, which prohibits the marriage of a queen dowager without the consent of the king, assigns this reason for it (a): "because the disparagement of the queen shall give greater comfort and example to other ladies of estate, who are of the blood "royal, more lightly to disparage themselves (b)." Therefore by the statute 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 c. 18, (repealed among other statutes of treasons, by 1 Edw.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 sisters or aunts ex parte paternâ, or the children of his brethren or sisters; 66 66 (x) Lords' Journ. 28th Feb. 1772. (y) See (besides the instances cited in Fortescue Aland) for brothers and sisters; under King Edward the third, 4 Rym. 392, 403, 411, 501, 508, 512, 549, 683-under Henry the fifth, 9 Rym. 710,711, 741 :-under Edward the fourth, 11 Rym. 564, 565, 590, 601:-under Henry the eighth, 13 Rym. 249, 423;-under Edward the sixth, 7 St. Tr. 3, 8. For nephews and nieces; under Henry the third, 1 Rym. 852:-under Edward the first, 2 Rym. 489:-under Edward the third, 5 Rym. 561:-under Richard the second, 7 Rym. 264 :under Richard the third, 12 Rym. 232, 244:-under Henry the eighth, 15 Rym. 26, 31. (z) To great nieces; under Ed ward the second, 3 Rym. 575, 644. (a) The occasion of this statute was the marriage of Catherine, mother to Henry the sixth, with Owen Tudor, a private gentleman. (Christian's Blackstone.) (b) Ril. Plac. Parl. 672. [being exactly the same degrees, to which precedence is allowed by the statute 31 Hen. VIII., before mentioned. And now, by statute 12 Geo. III. c. 11, no descendant of the body of King George the second, (other than the issue of princesses married into foreign families,) is capable of contracting matrimony, without the previous consent of the sovereign, signified under the great seal,] and declared in council; [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 twelvemonth's notice given to the 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.] CHAPTER V. OF THE ROYAL COUNCILS, AND Of the offiCERS OF STATE. THE fourth point of view, in which we are to consider the sovereign, 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 (a). 2. Secondly, the peers of the realm are by their birth hereditary counsellors of the crown, and may be called together by the sovereign 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 (b). Accordingly Bracton (c), speaking of the nobility of his time, says they might probably be called "consules, a consulendo; reges enim tales sibi associant ad consulendum." And in our law books (d) it is laid down, that peers are created for two reasons: 1, ad consulendum, 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 sitting: because it intends, that they are always assisting the sovereign. with their counsel for the commonwealth, or keeping the realm in safety by their prowess and valour. Instances of conventions of the peers, to advise the (a) Vide sup. c. I. (b) Co. Litt. 110. (c) L. 1, c. 8. VOL. II. (d) 7 Rep. 34; 9 Rep. 49; 12 Rep. 96. H H [crown, have been in former times very frequent, though now fallen into disuse by reason of the more regular meetings of parliament. Sir Edward Coke (e) 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 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 the first, 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 Clarendon (ƒ) 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 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 sovereign, 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 the second, it was made an article of impeachment in parliament against the two Hugh Spencers, father and son, for which they were banished the kingdom, "that they (e) 1 Inst. 110. (f) Hist. b. 2. 66 [" by their evil covin would not 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" (g). 3. A third council belonging to the sovereign are, according to Sir Edward Coke (h), his judges of the courts of law, for law matters. And this appears frequently in our statutes, particularly 14 Edward III. c. 5, and in other books of law.] For when the king's (or queen's) council is mentioned generally, [it must be defined, particularized, and understood, secundum subjectam materiam.] And [therefore when, by stat. 16 Rich. II. c. 5, it was made a high offence to import into this kingdom any papal bulls, 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 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 (i). 4. But the principal council belonging to the sovereign 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 (j), 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 sovereign's will is the sole constituent of a privy councillor; and this also regulates their number, which of antient time was twelve or thereabouts. Afterwards it increased to so large a number, that it was found inconvenient for secrecy and dispatch; and 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 councillors virtute officii; (g) 4 Inst. 53. (i) 3 Inst. 125. (j) 4 Inst. 53. (h) 1 Inst. 110; 4 Rep. 56 a. H H. 2. |
