225 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 precisely determined. The moft frequent inftances of the crown's interpofition go no [226] farther than nephews and nieces"; but examples are not wanting 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, aligns this reafon for it (12): "because the difparagement 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 statute 28 Hen. VIII. c. 18. (repealed, among other statutes of treafons, by 1 Edw.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 filters; being exactly the fame degrees, to which precedence is allowed by the ftatute 31 Hen. VIII. before-mention

1 Lord's Journ. 28 Feb. 1772.

m See (befides the inftances cited in Fertefeue Aland) for brothers and fifters; under king Edward III, 4 Rym. 392. 403.411. 501. 508. 512. 549. 683: under Henry V, 9 Rym. 710, 711.741: -under Edward IV, 11 Rym. 564, 565. 590.601:-under Henry VIII. 1 3Rym. 249.423:-under Edw. VI. 7 St. Tr. 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, 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 firft Coufins; under Edward III, 5 Rym. 177. To second, 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. 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 statute was the marriage of Catharine, mother to Hen. VI, with Owen Tudor, a private gentleman. See p. 223.

ed.

ed. And now, by ftatute 12 Geo. III. c. 11. no defcendant of the body of king George II, (other than the iffue 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 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; uniefs both houses of parliament shall, before the expiration of the faid year, exprefsly declare their disapprobation of fuch intended marriage. And all perfons folemnizing, affifting, or being prefent at, any such prohibited marriage, fhall incur the penalties of the ftatute of praemunire.

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 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 advife with.

1. THE first of thefe 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 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: fuch as freedom from arrefts, &c. even when no parliament is fitting: because it intends, that they are always affifting the king with their counfel for the commonwealth, or keeping the realm in fafety by their prowefs and valour.

ment.

INSTANCES Of Conventions of the peers, to advise the king, have been in former times very frequent; though now fallen into difufe, by reason 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 otherwife 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 ancient kings: though the formal method of convoking them had been fo 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 majefty 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 practifed 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 eafily be got together: as was particularly the case 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.

с

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 refpect, fuch matters as he fhall 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.

e 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 fuffer 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 fa"ther and Hugh the fon, or one of them, and at their will, ❝ and according to fuch things as pleased them f."

3. A THIRD Council belonging the king, are, according to fir Edward Coke, his judges of the courts of law, for law matters. And this appears frequently in our ftatutes, 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 fubject 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 fubject 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 fole conftituent of a privy counfellor; and this alfo regulates their number, which of antient time was twelve or thereabouts. Afterwards it increafed to fo large a number, that it was found inconvenient for fecrecy and dispatch; and therefore king Charles the fecond in 1679 limited it to thirty: [230]