ing 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 consent of the king, affigns this reason for it: "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 dispa"rage themselves." Therefore by the ftatute 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 (repealed, among other statutes of treasons, by 1 Edw.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 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 statute 31 Hen. VIII. before-mentioned. And now, by ftatute 12 Geo. III. c. 11. no descendant 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 consent of the king fignified under the great feal; and any marriage contracted without fuch confent is void. Provided, that such 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 confent of the crown; unlefs both houses of parliament fhall, before the expiration of the faid year, exprefsly declare their disapprobation of such intended marriage. And all perfons folemnizing, affifting, or being present at, any such prohibited marriage, shall incur the penalties of the statute of praemunire. To great nieces; under Edward II. 3 Rym. 575. 644. To first cousins; under Edward III, 5 Rym. 177. To fecond, and third coufins; 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 Eliza- CHAPTER THE FIFTH. OF THE COUNCILS BELONGING TO THE HE third point of view, in which we are to confider the e king, is with regard to his councils. For, in order to affift 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, fays they might properly 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 reafons: 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. a Co. Litt. 110. c7 Rep. 34. 9 Rep. 49. 12 Rep. 96. P 3 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 parliaSir 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 feast 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. shall 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 issued 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, so old, that it had not been practiced 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 cases 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 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. e 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 I Inft. 110. e Hift. b. 2. the the two Hugh Spencers, father and son, for which they were banifhed 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 said Hugh the fa"ther 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 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 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 fhould be attached by their bodies, and brought before the king and his council to answer for such 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 aflembly, 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 constituent of a privy counsellor; 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 fecrecy and difpatch; and therefore king Charles the fecond 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 choofing. But fince that time the number has been much augmented, and now continues indefinite. At the fame time also, the antient office of lord president of the council was revived in the perfon of Anthony earl of Shaftsbury; an officer, that by the ftatute 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 neceffary oaths, they become immediately privy counsellors during the life of the king that chooses them, but subject to removal at his difcretion. As to the qualifications of members to fit at this board: any natural born fubject of England is capable of being a member of the privy council; taking the proper oaths for fecurity of the government, and the teft for fecurity of the church. But, in order to prevent any perfons under foreign attachments from infinuating themselves into this important truft, as happened in the reign of king William in many instances, it is enacted by the act of fettlement', that no person born out of the dominions of the crown of England, unless born of English parents, even though naturalized by parliament, fhall be capable of being of the privy council. THE duty of a privy counsellor appears from the oath of officem, which confifts of feven articles: 1. To advise the king according to the beft of his cunning and difcretion. 2. To advise for the king's honour and good of the public, without partiality through affection, love, meed, doubt, or dread. 3. To keep the king's counsel fecret. 4. To avoid corruption. 5. To help and ftrengthen the execution of what k Temple's Mem. part 3. 1 Stat. 12 & 13 Will. III. ç. 2, m 4 Inft. 54. fhall |