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The Legal Observer. .

SATURDAY, NOVEMBER 30, 1839.

Quod magis ad nos
Pertinet, et nescire malum est, agitamus.

HORAT.

THE LAW RELATING TO THE be in the communion of the Church of QUEEN'S MARRIAGE.

England.

The marriage of our present gracious The authority of the Sovereign of these Sovereign is of considerable interest in a realms is omnipotent in all matters in which legal and constitutional point of view, with it is not restricted by act of parliament. regard to the precise situation which her The King or Queen regnant,a may therefore intended husband shall fill, and the rights, marry any person he or she may please, not powers, and privileges which are to be given prohibited by any such act. It is, however, to him. enacted in the first place by stat 12 & 13 There are only two precedents in our W.3, c. 2, that whosoever shall come to the history of a married Queen Regnant; these possession of the Crown, shall join in the are, the first Queen Mary and Queen Anne, communion of the Church of England, as by (for the situation of the second Mary, the law established ; and by the prior statute consort of William the Third, as a Queen, 1 W. & M., st. 2, c. 2, usually called the is anomalous, and need not here be conAct of Exclusion, that every person who shall sidered), and we shall state what was done marry a Papist, shall be excluded and for in both these cases. ever incapable to inherit, possess, or enjoy In the instance of the first Mary, an act the Crown; and that in such case the was passed in the third session of the first people shall be absolved from their alle- / year of her reign, chap. 1, to declare (acgiance, and the Crown shall descend to such cording to the title) that the regal power persons, being Protestants, as would have of this realm is as fullin the Queen's Majesty inherited the same in case the person so as ever it was in any of her noble ancestors,” marrying were naturally dead, the Crown it being enacted by s. 3, " that the royal in the words of Blackstone “ being limited power, and all the dignities of the same, to such heirs only of the Princess Sophia as shall be as well in a queen as a king, "--an are Protestant members of the Church of enactment certainly quite unnecessary. By England, and are married to none but chap. 2, of the same session, the articles of Protestants." The King or Queen there- marrriage between Philip Prince of Spain and fore, may marry any person of the other sex the Queen are rehearsed and confirmed. And not being a Papist, for we are not aware it was enacted that the Queen shall and may that the restriction extends to any other only as a sole Queen use and enjoy the crown religion, or that the person so married need and sovereignty over her dominions, in such

large manner in all degrees, after the solema The Queen Downger is prohibited from nization of the marriage as she now hath, marrying without the consent of the Crown, without any right, claim, or demand to be " because the disparagement of the Queen shall given, come, or grow unto the said Prince as give greater comfort and example to other tenant by the curtesy of this realm, or by any ladies of estate, who are of the blood royal,

other means.

This is the substance of this more lightly to disparage themselves,” 6 Hen. 6; 2 Iust. 18; See Riley's Plac. Parl. 72; i statute, as printed in the ordinary editions of Bla. Com. 224.

the statutes at large, but it may be observed 0 1 Bla. Coin. 218.

that the following account of the act is given VOL, XIX.- No. 560.

F

66

The Law relating to the Queen's Marriage.

It was

in the first volume of the Parliamentary | however, nominally at any rate, King of History...

England, and it is to be observed that at “In April 7th, 1554, a bill was brought the time of his marriage, he was King in into the Lords to confirm certain articles no other right. To grace the ceremony and agreements touching the marriage be- and promote the dignity of the match, tween the Queen and the Prince of Spain. Charles V., his father, created him King of It was read only once on that day, and Naples, on its solemnization, but this was committed to the Earl of Shrewsbury, the little more than a titular dignity. Bishops of Durham, &c.; on the 9th, the subsequent to his marriage, the

year 1555, bill was read again-the next day it passed that he became King of Spain, on the rethat House, and was sent down to the signation of Charles the 5th. Commons, who returned it concluded on In a work of some authority, we find the 12th. The following is an abstract of the following account of the constitutional the act by which this marriage was con- nature of Philip's power: “Philip as King, cluded. 1. That Philip should not ad- had the honour, style, and kingly name, vance any person to any public office or and so had the precedency; he had to do dignity in England, but such as were na- also with the jurisdiction, for by the articles tives of the realm and the Queen's subjects; of the marriage, he was to aid the Queen that he should admit a set number of Eng. in her administration of the kingdom and lish into his household, whom he should maintenance of the laws; writs and comuse respectfully, and not suffer them to be missions passed under his name. He also injured by foreigners. That he should not sat in Parliament, voted therein, and joined transport the Queen out of England, but at in the royal assent, and joined in the publiner entreaty ; nor any of the issue begotten cation and execution of all laws; to him also on her, but they should have their educa- was allegiance due,& and therefore the crime tion in this realm, and should not be suf- of treason was equally against his as the fered, but upon necessity and good reasons, Queen's crown and dignity, saving that it to go out of the same; nor then neither, was reserved to be as against him only but with the consent of the English. That during the time of coverture, (citing the the Queen deceasing without children, stat. 1 & 2 Ph. & M. c. 10 ;) and yet had Philip should not make any claim to the the Queen left issue by him, it would have kingdom, but should leave it freely to him been a hard adventure for the lawyers to have to whom of right it should belong. That oven their opinion in that case, seeing the he should not change anything in the laws, king had been guardian to his children dureither public or private, nor the immunities ing their minority.” It is therefore difficult and customs of the realm, but should be to say that Philip was the subject of Queen forced by oath to keep and confirm them. Mary. He may rather be treated as the That he should not transport any jewels, partner of her throne. : nor any part of the wardrobe, nor alienate The second instance of a married Queen any of the revenues of the Crown. That Regnant in our history was Queen Anne, he should preserve our shipping, &c. in who married George, Prince of Denmark. good repair and well-manned." The mar- This Sovereign was married many years riage was afterwards solemnized on the before she came to the throne. Her hus20th of July, and they were both pro- band was, soon after the marriage, created claimed by these titles : “ Philip and Mary, Duke of Cumberland, and took some part by the grace of God, King and Queen of in politics, as a Peer of Parliament, in the England, France, Naples, Jerusalem, and reign of William the Third. Thus we Ireland, Defenders of the Faith, Archduke find him, in 1692, among those who of Austria, &c.” A new Parliament was entered a protest in the journals of the summoned by writs in the foregoing style, House of Lords against the rejection of a and the statutes of this reign are called the popular billh of the time. The first exeracts of Philip and Mary, and legal proceed- cise of Queen Anne's power on her coming ings ran in both names.

that to the throne was the nomination of the though the Queen attempted to have the administration put into her husband's hands,

Lingard, Vol. 7, p. 238. she failed in all her endeavours, and could f N. Bacon on Government of England, not so much as procure the parliament's (1651) 2d part, p. 275. This work is highly consent to his coronation. Philip was, praised by the Earl of Chatham, in his Letters

to his nephew.

• This seems very doubtful, see post, p. 66. d | Vol. 4, 363. h Smollett, Vol. 1, 181.

Hume says

e p. 613.

The Law relating to the Queen's Marriage.

67

Prince her husband to the offices of rank in the table of precedency and in the Generalissemo and Lord High Admiral. army expressly conferred on him. Being regarded only as a subject, however, Blackstone,' alluding to the husband of he still continued to occupy a seat in the a Queen Regnant, contents himself with House of Peers, in the quality of Duke of the following passage : “ The husband of a Cumberland. In a subsequent period of Queen Regnant, as Prince George of Denthe reign, having interfered in politics, he mark was to Queen Anne, is her subject, was threatened with parliamentary censure and may be guilty of high treason against by one of the great contending parties in her, but in the instance of conjugal in. the state, which probably would have fallen fidelity he is not subjected to the same on him had he not soon afterwards died. penal restrictions. For which the reason Prince George had never, at any time, any seems to be that if a Queen Consort is unpretensions to any character but that of a faithful to the royal bed, this may debase subject. In Nov. 1702, a provision was made or bastardise the heirs to the Crown, but for his Highness, and the yearly sum of no such danger can be consequent on the 100,0001. was settled on him, in case he infidelity of the husband to a Queen should survive the Queen; and this was Regnant." seconded,” says Burnet,“ by those who Lord Cokem is, however, more distinct knew how acceptable the motion would be than this. Discussing the Statute of Treato the Queen, though it was double of what sons, he says, Le Roy, is to be understood any Queen of England ever had in jointure, of a King Regnant, and not of one that so that it passed without opposition. The hath but the name of a King, or a nominaPrince was many years older than the tive King, as it was resolved in the case of Queen, and was troubled with an asthma, King Philip, who married Queen Mary, and that every year had ill effects upon his was but a nominative King, for Queen health, and had brought him to great Mary had the office and dignity of a King. danger this winter; yet the Queen thought And therefore an act was passed that to it became her, as a good wife, to have the compass the death of King Philip, during act passed, in which she might be the his marriage with the Queen, was treason. more zealous, because it was not thought Hawkins" says on the Statute of Alleadvisable to move for an act that should giance, 11 Hen. 7, chap. 1,-“A titular take Prince George into partnership of the king, as the husband of a Queen Regnant, regal dignity.”

seems to be within the words, yet it is It will be seen, therefore, that the circum- clearly not within the meaning of this law.” stances relating to these two precedents dif- The same law is also most clearly laid fer very much from each other, and that the down by Lord Hale. “ The husband of a character and situation of King Philip were Queen Regnant is not a King within this very different from those of Prince George. law (the Statute of Treasons), for the

queen We humbly conceive, however, the con- still holds her sovereignty entirely as if she stitutional doctrine to be, that by whatever were sole. (Vide 1 Mary, cap. 2, sess. 3).” name the consort of a Queen Regnant be We conceive, therefore, that we have called, he is only a subject, and has, as we now shewn the correct rule to be, that the conceive, no peculiar privileges. If he be husband of a Queen Regnant of England, created a Peer of Parliament, he would, of by whatever name he be called, King or course, be privileged as such, or he may Prince, is a subject ; that no allegiance is enjoy any rank or any station in the public due to him ; that no treason, without an service expressly conferred on him by the express act of parliament for that purpose, Sovereign; but, unless so conferred, he can be committed towards him; and that, does not appear to have any recognized as it would seem, he has no acknowledged rights by the common law ; such as the rank or privileges but what are expressly Queen Consort has, for instance. The conferred on him. present King of Belgium, on his marriage with the Princess Charlotte, may be con- 11 Bla. Com, 224. sidered as standing in nearly the same situa- m 3 Inst. 6, 7, & 8. tion as the consort of a Queen. We believe n Hawk. P. C. Chap. 17, s. 20. Compare he declined a peerage, and merely took the this with what Bacon says, as before cited

o Hale. P. C. 106. i Coxe's Marlborough, Vol. I, p. 107. i Coxe’s Marlborough, Vol. 2, pp. 599, 60). k See Parl. Hist. Vol. 6, p. 56.

'k

68

Notes on Equity.
NOTES ON EQUITY.

sion of the council, for the public benefit of

the inhabitants, and the improvement of the MU'NICI PAL CORPORATION ACT.

borongbi ; so that there is a sort of public irust

aífixed upon that which, before the act was By the Municipal Corporation Act, 5 & 6 W. passed, was mere corporate property, capable 4, c. 76, s. 97, the council elected under the of alienation according to the uncontrolled act may call in question all purchases: sales, will and pleasure of the body corporate. The and leases, not made before the 5th of June; novelty which has been introduced by the act 1835; and if it shall appear to the council is two-fold ; first, the funds of corporations that there is ground for believing that any are to be applied to public purposes; and, such purchase, sale, or lease, was made for no

secondly, they are to be applied under the diconsideration, or an inadequate consideration, rection of the council. But it was said that the council may within six months after the they are not at liberty so to do, as the 97th first election of councillors under the act, cause section of the act has provided a new course of the value of the lands, tenements, and premises proceeding to be taken in cases where corporate in question to be inquired of and found by a jury of twelve indifferent persons, who shall after having frequently read over that section,

property has been collusively alienated. But, have full power to inquire into the whole the conclusion that I have come to is, that that transaction, and if the jury shall find that no section cannot be considered to have ousted consideraticn, or a consideration less than this Court of its general jurisdiction to enforce that which they shall have so found to be the a mere trust; and I should have come to that value which ought to have been given shall conclusion even if the matter had not been so have been collusively given, the party to such decided as I think it has been. It is true that purchase, sale, or lease, shall have his option the act has, to a certain extent, changed the either to reconvey and restore the lands, &c. ! form of the remedy; for as corporate property and to abandon the contract upon the receipt | is now applicable to public purposes, it may be of the consideration, if any, which he shall right that, in all future instances, the Attorney have given for the sume, or to give such addi- General should sue in conjunction with the tional consideration so found by the jury.

It has been held in the construction of this corporation. But for that circumstance, the statute by Lord Cottenhum, C., reversing the corporation might have filecl a bill against those decision of Lord Lungdale, M. R., that the situation of trustees, and thereby have com

indiviluals who have placed themselves in the Court of Chancery has authority under its ge- pelled them to give an account of their trust, neral jurisdiction to interfere for the protection and to make restitution to the corporation of of property vested in the corporation of a bo. its own property. In any opinion it never rough 'nained in the Municipal Corporation could have been the intention of the legislature Act, on the ground of breach of trust coinmitted or threatened after the passing of that by this 97th section to oust this Court of its

general jurisdiction, for it is to be observed, act, although the time when the existing members of the governiug body corporate of such that the remedy is of an extremely minute and

special nature ; and inoreover, it is to be borough are to go out of office may not liave arrived. Attorney General v. Mayor of Liver exercised only within a limited time ; because, pool, I Myl. & C. 171; reported at the Rolis it is enacted that it shall be lawful for the under the name of Attorney General v. Aspinal, next after the first election of councillors under

council, at any time within six calendar months 12 L. U. 306. Sir L. Shadwell, V. C., adhe- the act shall have been declared, to summon a ring to the Lord Chancellor's opinion, has also jury, in order that the matter complained of held that a Court of Equity has jurisdiction to

may relieve against collusive alienation of corpor te obviously might happen that the town council

be enquired into and rectified. Now it property, notwithstanding the remedy provided might not know the fact within the six months by the 97th section of the Municipal Corpor after the first election of councillors under the ration Act. The peculiar circumstances of the case need not be here adverted to ; but we

act; and it would be singular if an alienation shall extract the principle of his Honor's judg- should go unredressed, merely because the

of corporate property, however improper, The case is the Attorney General v.

town council had not that information which Wilson, 9 Sim. 30.

would enable thein to take proceedings for “ It does not appear to me that the Muni. defeating it within the very limited time precipal Corporation Act has destroyed the identity scribed by the act. I cannot think that such of the old corporativns, but it has continued was the intention of the legislature. And the the existence of the old corporations, varying, latier part of the section throws light upon the however, the mode in which certain corporate question ; for the power that is given to his officers are to be chosen. This, however, is to Majesty in council to order that in certain cases be observed, that, although the mode of choos- improper alienation of corporate property ing the officers is altered, the corporation, in shall not be called in question, is not a general law remaining the same, yet, the application power to his Majesty in council to order that of the funds belonging to corporations is varied. those alienations shall not be called in quesFor the 92d section of the act, after directing tion at all, but only to order that they shall the property of corporations to be applied to not be called in question under the provisions certain specified purposes, directs that the sur. of that act. The meaning of the legislature plus (if any) shall be applied, under the direc- was that the power of the King in council

ment.

IN THE LAST SESSION OF PARLIAMENT.

LETTERS PATENT FOR INVENTIONS.

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The New Solicitor General. Changes in the Law.

69 should be limnited to that which is mentioned lett is once more in the lists, we would in the antecedent part of the section, namely, fearlessly commit, what we conscientiously to the proceedings which should be taken und believe to be the right side, to his guidance. der the provisions of the act ; and the restric. Let the Serjeants then do their best. tive words wbich are there found were meant to be confined to that new inode of proceeding provided by the section itself, and which was to take place in a given form. If before the CHANGES IN THE LAW passiog of the aut now under consideration, this Court had a right to interfere at the instance of corporations suing as cestuis que trust to protect their property in the hands of

No. XV. their trustees, there are, in my opinion, no restrictive words in the act, to destroy that

2 & 3 Vict., c. 67. antecedent right; but there is only a cumulative right given, in a particular form, to set An act to amend an act of the fifth and sixth aside certain alienations of corporate property years of the reign of King William the that mig!t be discovered by the town council Fourth, intituled An Act to amend the within a very limited time,''

the law touching Letters Patent for Inventions."

[24th August 1839.)

5 8 6 IF. 4, c. 83. Repeuling provisions THE NEW SOLICITOR GENERAL. requiring the application by petition to be pro

secuted with effect before the expiration of the Mr. Sergeant Wilde has been appointed term of the putent.--Whereas by an act passed Solicitor General. It will be remembered in the fifth and sixth years of the reign of his that we have stated from the first that we

Majesty King William the Fourth, intituled

“An Act to amend the Law touching Letters believed this appointment would be made Patent for Inventions,” it is amongst other in the event of Sir R. Rolfe's being pro- things enacted, that if any person having ob moted to the Bench. We do not find that tained any letters patent as therein inentioned the new Baron has as yet sat in Equity. shall give notice as thereby required of his This is a favourite side of the Court both intention to apply to his Majesty in council for with Lord Abinger and Mr. Baron Alder- a prolongation of his term of sole using and son, and we are not sure that they will re

vending his invention, and shall petition his

Majesty in Council to that effect, it shall sign it.

be lawful for any person to enter a caveat The rights of the Serjeants are still in at the council office, and if his Majesty shall suspense. On the last day of Michaelmas refer the consideration of such petition to the Term, Chief Justice Tindal informed the judicial committee of the privy council, and Bar that on the first day of next Term, notice shall be first given to any person or or as soon after as was convenient, he should persons who shall have entered such caveats, call on some gentleman of the coif to move, witnesses to prove bis case, and the persons

the petitioner shall be heard by his counsel and passing over some other. gentleman not entering caveats shall likewise be beard by of that degree, who might then shew their counsel and witnesses, whereupon, apil cause why he should be heard. The in- upon hearing and inquiry of the whole inatter, tention of this is obviously to enable the the judicial committee inay report to his Ma. Court to hear both sides of the question. jesty that a further extension of the term in the So far the argument has been entirely on

said letiers patent shall be granted, not exone side-a unilateral case—both in the ceedling seven years, and his Majesty is therely Privy Council and in the Common Pleas, lit, to grant new letiers patent for the said in

authorized and empowered, if he'shill think with the exception of a most able and vention for a term not exceeding seven years amusing speech, as we understand, from after the expiration of the first term, any laws, the Attorney General in the Privy Council. custom, or usage to the contrary notwithstand It will now be for the profession at large to ing; provided that no such extension shall be select a champion of their general privileges, be made and prosecuted with effect before the

granted if the application by petition shall not as against the monopoly of the learned expiration of the term originally granted in “ band of brothers.” We shall see whether such letters patent: And whereas it has bapthe new Solicitor General will throw the pened since the passing of the said act, and weight of his official station into the Ser. inay again bappen, that parties desirous of ol). jeants' scale. If he should, which we much taining an extension of the term granted in doubt, and the Attorney General were heard letters patent of which they are possessed, and for the Bar generally, it would be rather a

who may have presented a petition for such curious and unusual contest. We would, rected, before the expiration of the said term,

purposes in manner by the said recited act dihowever humbly, recommend new coun. may nevertheless be prevented by causes over sel on both sides, and as Sir William Fol. which they have no control from prosecuting

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