they certified (h) 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, (i) he was placed on the upper end of the earl's 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 George 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. (k) But they all agreed, that the care and approbation of their marriages, when grown up, belonged to the king their grandfather. (7) And the judges have more recently concurred in opinion, (7) 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; (m) but examples are not [*226] wanting of its reaching to more distant collaterals. (n) And the statute 6 Hen. VI, before mentioned, which prohibits the marriage of a queen dowager without the consent of the king, assigns this reason for it: (8) "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." (0) 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 VIII, c. 18, (repealed, among other statutes of treasons, by 1 Edw.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 paterna, 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 præmunire." (9)

(m) See (besides the instances cited in Fortescue Aland) for brothers and sisters ; 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. 13 Rym. 249, 423-under Edward VI. 7 St. Tr. 3, 8. For nephews and nieces; under Henry III. 1 Rym. 852-under Edward 1. 2 Rym. 489-under Edward III. 5 Rym. 561-under Richard II. 7 Rym. 261-under Richard III. 12 Rym. 232, 244-under Henry VIII. 12 Rym. 26. 31.

(n) To great nieces; under Edward II. 5 Rym. 575. 644. To first cousins; under Edward II. 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 cousins; under Henry VII. 12 Rym. 329. To the blood-royal in general; under Richard II. 7 Rym. 787. (0) Ril. Plac. Pari. 672.

(7) A full report of the arguments of the judges may be seen in State Trials, vol. xi. 295. () [The occasion of this statute was the marriage of Catharine, mother to Henry VI, with Owen Tudor, a private gentleman. See p. 223.]

(9) In 1793 the Duke of Sussex was married while in Rome to the Lady Augusta Murray, without the consent of the crown; and on his return to England caused the marriage to be celebrated anew. Some question was made whether the marriage act could have any force beyond the British dominions, and the king directed a suit for the nullity of the marriage to be instituted. This was done accordingly, and the court of arches declared the marriage absolutely null and void. Heseltine v. Lady Murray, 2 Add. 400. This, however, did not put VOL. I.-19 145

CHAPTER V.

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. (a) Accordingly Bracton, (b) speaking of the nobility of his time, says they might probably be called "consules, a consulendo; regis enim tales sibi associant ad consulendum." And in our law books (c) 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 king 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 king, have been [*228] in former times very frequent, though now fallen into disuse by reason of the more regular meetings of parliament. Sir Edward Coke (d) 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 ancient 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 Clarendon (e) 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 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

(a) Co. Litt. 110. (e) Hist. b. 2.

(b) L. 1, c. 8.

(c) 7 Rep. 34, 9 Rep. 49, 12 Rep. 96.

(d) 1 Inst. 110.

the question at rest, and in 1843, on the death of the duke of Sussex, Sir Augustus D'Este, the son of his royal highness by this marriage, claimed the dukedom and other honors of his father. There was no objection to the marriage in point of form; it having been celebrated according to the rites of the church of England, by a clergyman of the establishment, and it would unquestionably have been good but for the prohibition of the royal marriage act. The judges were unanimously of opinion that the prohibition was personal, and followed the members of the royal family wherever they might go; and the house of lords concurring in this opinion, it was decided that Sir Augustus had not made out his claim. 11 Cl. and Fin. 85.

A later statute than the one referred to in the text, 3 and 4 Vic. c. 52, § 4, forbids a marriage by the king or queen when under a regency, and before arriving at the age of eighteen years, without the consent in writing of the regent and the two houses of parliament; and makes every such marriage without the required consent void, and the persons concerned therein guilty of high treason.

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, [*229] "that they 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." (f)

3. A third council belonging to the king are, according to Sir Edward Coke, (g) his judges of the courts of law, for law matters. 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 mentoned 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 stat. 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)

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 Sir Edward Coke's description of it, (i) 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 king's will is the sole constituent of a privy councellor; and this also regulates their number, which of ancient 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 princi- [ *230]

pal 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 choosing. (k) But since that time the number has been much augmented, and now continues indefinite. (2) At the same time, also, the ancient office of lord president of the (h) 3 Inst. 125. (i) 4 Inst. 53.

(f) 4 Inst. 53.

(g) 1 Inst. 110.

(k) Temple's Mem. Part. 3.

(1) Mr. Justice Coleridge doubts this interpretation, and is inclined to the opinion that the tribunal referred to is that out of which subsequently grew the courts of chancery and star chamber. And see Hallam, Const. Hist. c. 1.

(2) In modern usage the following officers of state have seats in the Queen's chief council or "Cabinet" as it is usually called: The first lord of the treasury, the chancellor of the exchequer, the five principal secretaries of State, the first lord of the Admiralty, and the lord high Chancellor. But it is also customary to include among the number the lord President of the Council, and the lord Privy Seal. Several other ministerial functionaries usually have seats in the cabinet; never less than three and rarely so many as seven or eight, in addition to those above mentioned. The selection is made either from amongst such of the principal officers of state and heads of departments having seats in parliament, whose rauk, talents, political reputation and weight would be likely to render them the most useful auxiliaries, or from those whose services to their party while in opposition may have given them the strongest claims to this distinction. Todd. Parl. Gov. Vol. 2, p. 153.

Persons may be called to the "cabinet," however, without being incumbents of any office, as was the case of the earl of Carlisle in the ministry of Earl Grey. All the members are not

council was revived in the person of Anthony, earl of Shaftsbury; an officer that by the statute 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 necessary oaths, they become immediately privy counsellors during the life of the king that chooses them, but subject to removal at his discretion.

As to the qualifications of members to sit at this board: any natural born subject of England is capable of being a member of the privy council, taking the proper oaths for security of the government, and the test for security of the church, (3) But, in order to prevent any persons under foreign attachments. from insinuating themselves into this important trust, as happened in the reign of King William in many instances, it is enacted by the act of settlement, (7) that no person born out of the dominions of the crown of England, unless born of English parents, even though naturalized by parliament, shall be capable of being of the privy council.

The duty of a privy counsellor appears from the oath of office, (m) which consists of seven articles: 1. To advise the king according to the best of his cunning and discretion. 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 council secret. 4. To avoid corruption. 5. To help and strengthen the execution of what *shall be there resolved. 6. To with

[*231] stand all persons who would attempt the contrary. And lastly, in general, 7. To observe, keep, and do, all that a good and true counsellor ought to do to his sovereign lord.

The power of the privy council is to inquire into all offences against the government, and to commit the offenders to safe custody, in order to take their trial in some of the courts of law. But their jurisdiction herein is only to inquire, and not to punish; and the persons committed by them are entitled to their habeas corpus by statute 16 Car. 1, c. 10, as much as if committed by an ordinary justice of the peace. And by the same statute, the court of star chamber, and the court of requests, both of which consisted of privy counsellors, were dissolved; and it was declared illegal for them to take cognizance of any matter of property belonging to the subjects of this kingdom. But in plantation or admiralty causes, which arise out of the jurisdiction of this kingdom; and in matters of lunacy or idiocy, (n) being a special flower of the prerogative; with regard to these, although they may eventually involve questions of extensive property, the privy council continues to have cognizance, being the court of appeal in such cases, or rather the appeal lies to the king's majesty himself in council. (4) Whenever also a question arises between two provinces in America

(7) Stat. 12 and 13 Will. III, c. 2.

(m) 4 Inst. 54.

(n) 3 P. Wms. 108.

necessarily called to every meeting, but only those are summoned whose advice and assistance are required on the particular occasion.

In practice an administration is formed by some one selected by the queen for the purpose, who is called the prime minister or premier, and who will fill the important offices of state with those who are friendly to his policy. The premier himself usually becomes first lord of the treasury, but sometimes selects some other position. The cabinet must contain members of both houses of parliament. Sometimes a judge has been called to a seat in the cabinet, as in the cases of Lord Mansfield and Lord Ellenborough; but this was always considered objectionable on constitutional grounds; the theory of the constitution being that the judge should be independent of the crown.

(3) The oath now prescribed is the very simple form given in the Promissory Oaths act 1868, 31 and 32 Vic. c. 72.

(4) This judicial tribunal was entirely reorganized under stat. 2 and 3 Will. IV, c. 92; 3 and 4 Will. IV, c. 41; and 6 and 7 Vic. c 38. It consists now of the president of the council, the lord chancellor, the archbishops of Canterbury and York the lords justices of the court of

or elsewhere, as concerning the extent of their charters and the like, the king in his council exercises original jurisdiction therein, upon the principles of feudal sovereignty. And so likewise when any person claims an island or a province, in the nature of a feudal principality, by grant from the king or his ancestors, the determination of that right belongs to his majesty in council: as was the case of the earl of Derby with regard to the Isle of Man in the reign of Queen Elizabeth; and the earl of Cardigan and others, as representatives of the duke of Montague, with relation to the island of St. Vincent in 1764. But from all the dominions of the crown, excepting Great Britain and Ireland, an appellate jurisdiction *(in the last resort) is vested in the same tribunal; which usually exercises its judicial authority in a committee of the [*232] whole privy council, who hear the allegations and proofs, and make their report to his majesty in council, by whom the judgment is finally given.

The privileges of privy counsellors, as such, (abstracted from their honorary precedence,) (0) consist principally in the security which the law has given them against attempts and conspiracies to destroy their lives. For, by statute 3 Hen. VII, c. 14, if any of the king's servants of his household conspire or imagine to take away the life of a privy counsellor, it is felony, though nothing be done upon it. The reason of making this statute, Sir Edward Coke (p) tells us, was because such a conspiracy was, just before this parliament, made by some of King Henry the Seventh's household servants, and great mischief was like to have ensued thereupon. This extends only to the king's menial servants. But the statute 9 Ann. c. 16, goes farther and enacts that any person that shall unlawfully attempt to kill, or shall unlawfully assault, and strike, or wound, any privy counsellor in the execution of his office, shall be a felon without benefit of clergy. This statute was made upon the daring attempt of the Sieur Guiscard, who stabbed Mr. Harley, afterwards earl of Oxford, with a penknife, when under examination for high crimes in a committee of the privy council. (5)

The dissolution of the privy council depends upon the king's pleasure; and he may, whenever he thinks proper, discharge any particular member, or the whole of it, and appoint another. By the common law, also, it was dissolved ipso facto by the king's demise, as deriving all its authority from him. But now, to prevent the inconveniences of having no council in being at the accession of a new prince, it is enacted by statute 6 Ann. c. 7, that the privy council shall continue for six months after the demise of the crown, unless sooner determined by the successor. (6)

appeals in chancery, the master of the rolls, the vice chancellors, the chief justices of the queen's bench and common pleas, and chief baron of the exchequer, the judges of the courts of probate and admiralty, two members who have been judges in India or the colonies, all privy councillors who have held any of the other offices above mentioned, and two persons appointed under sign manual. It is called the judicial committee of the privy council, and it hears appeals from the colonial courts and India, and also in ecclesiastical cases. By stat. 6 and 7 Vic. c. 38, appeals and other matters may be heard before three members. This tribunal also hears applications for the extension of letters patent, or other matters relating thereto, and for licenses to republish books after the death of their authors.

(5) Both these statutes are repealed. See 9 Geo. IV, c. 31.

(6) Under the government of the United States the heads of the departments, consist of the secretaries of state, of the treasury, of war, of the navy, of the interior, the attorney-general and the postmaster-general. The constitution, art. 2, 2, empowers the president to require the opinion in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices. Washington originated the practice of consulting all the heads of departments on important measures, and by later presidents they have generally been convened for joint consultation, until "cabinet meetings," to determine the course of the administration on all questions of importance are expected as a matter of course. The cabinet, however, as a body of councillors, has no necessary place in our constitutional system, and each president will accord to it such weight and influence in his administration as he shall see fit. The president-not the cabinet-is responsible for all the measures of the administration, and whatever is done by one of the heads of departments is considered as done by the president through the proper executive agent. In this fact consists one important difference between the executive of Great Britain and of the United