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Edward, the second son of Frederick prince of Wales deceased, duke of York, and referred it to the house of lords to settle his place and precedence, they certified that he ought to have place next to the late duke of Cumberland, the then king's youngest son; and that he might have a seat on the left hand of the cloth of estate. But when, on the accession of his present majesty, those royal personages ceased to take place as the children, and ranked only as the brother and uncle, of the king, they also left their seats on the side of the cloth of estate so that when the duke of Gloucester, his majesty's second brother, took his seat in the house of peers', he was placed on the upper end of the earls' bench (on which the dukes usually sit) next to his royal highness the duke of York. And in 1718, upon a question referred to all the judges by king Geo. I., it was resolved 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 majesty as king of this realm, even during their father's life. (16) 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 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 farther than nephews and nieces"; [226] but examples are not wanting of it's reaching to more distant collaterals". And the statute 6 Henry VI., before mentioned,

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(6) A full report of the arguments of the judges as well of the majority as of the two dissentients, is given in Hargr. St. Tr. vol. xi. p. 295.

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which prohibits the marriage of a queen dowager without the consent of the king, assigns this reason for it; " 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 "." 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 (repealed, among other statutes of treasons, by 1 Edw.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 paterná, or the children of his brethren or sisters; 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 II. (other than the issue of princesses married into foreign families) is capable of contracting matrimony, without the previous consent of the king signified under the great seal; 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 king's 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 praemunire.

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CHAPTER THE FIFTH.

OF THE COUNCILS BELONGING TO
THE KING.

THE third point of view, in which we are to consider the king, 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.

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, says they might probably be called "consules, a consulendo; reges enim tales sibi associant ad con"sulendum." And in our law-books 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 arrest, &c. even when no parliament is sitting: because it intends, that they are always assisting the king with their counsel for the commonwealth, or keeping the realm in safety by their prowess and valour.

* Co. Litt. 110.

b. 1. c. 8.

7 Rep. 94. 9 Rep. 49. 12 Rep. 96.

INSTANCES of conventions of the peers, to advise the king, have been in former times very frequent; though now fallen into disuse, by reason of the more regular meetings of parliament. 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 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 I. 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 Clarendone 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 king, 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 II., 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 by their evil covin would not suffer the great men of the realm, the king's good coun

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"sellors, to speak with, or come near the king, or to give "him good councell, or that the king might speak with them; "but only in the presence or 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."

matters.

3. A THIRD council belonging to the king are, according to sir Edward Coke, his judges of the courts of law, for law 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, secundum subjectam 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 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. h. (1)

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(1) The passage referred to in the 3 Inst., is no authority for the interpretation given to the word council, in the statute of Richard; for it is a comment on the statute of Præmunire 27 E. 3. st.1.c.1., where the word seems used in the same sense as in the first-mentioned statute, and in which Lord Coke states that it cannot mean the Judges. The truth is, I believe, that the council here mentioned was a court of very extensive equitable jurisdiction, both in civil and criminal matters, the fountain from which, in process of time, the Courts of Chancery and Star Chamber were derived. Its history has never been satisfactorily traced, nor its jurisdiction and functions clearly distinguished from those of the council of the peers, or the great council in parliament. Perhaps it is too late to expect that this can ever be now done so as to free the subject from all doubts; but I have reason to hope that very great light will be thrown upon it, and therein upon the origin of all equitable jurisdiction in this country, by a gentleman who is devoting himself to the legal antiquities of the country with an industry and intelligence that promise to overcome great difficulties.

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