George II., Queen Charlotte, and Queen Adelaide, to the sum of 100,000Z.1 The prince of Wales and his wife, the princess of Wales, are distinguished by the law from the rest of the royal family, because he is the heir-apparent to the crown. By the stat. 25 Edward III. to compass or conspire his death, or violate her chastity, is high treason; because he is the next in succession to the crown, and from her the direct line of succession is to proceed. The heir-apparent to the crown is usually created prince of Wales and earl of Chester; but he is, immediately on his birth, duke of Cornwall. This is a very peculiar species of inheritance created by act of parliament, whereof there is no other instance. The duchy of Cornwall was in the queen until she had male issue; and on the birth of the heir-apparent, he immediately became duke of Cornwall by inheritance; but to hold the dukedom only so long as he does not inherit the crown, and have a son and heir; for as soon as the father becomes king, the law vests the duchy of Cornwall in his heir apparent,2 The sovereign's eldest daughter is the next member of the royal family specially distinguished by the law. She is styled the princess royal; and, by the statute 25 Ed. III., to violate her chastity is high treason. The rest of the royal family, Blackstone says, may be considered in two different lights, according to the different senses in which the term the royal family is used. The larger sense includes all those who by any possibility may inherit the crown. The more confined sense includes only those who are within a certain degree of propinquity to the reigning prince, and to whom, therefore, the law pays an extraordinary regard and respect; but, after that degree is past, they fall into the rank of ordinary subjects, and are seldom considered any farther, unless called to the succession on failure of the nearer lines.3 The heir or heiress presumptive to the throne has by law no rank or precedence as such, because that species of heirship is at any time. liable to be defeated by the birth of an heir apparent; and the law will take no notice of the greater or less probability, or even the impossibility, of such an event taking place. It was, however, remarriage of the presumptive heir to the throne, being a minor, belongs of right to the sovereign. And Parliament has in several instances provided solved by the judges, that the approbation of the 5 1 Stat. 1 & 2 W. 4. ch. 11. Parl. Deb. vol. iii. 2d ser. Apr. 15. 1831. 2 Prince's Case, 8 Co. Rep. 20, 26. Hobart Rep. 224. I. Blackst. Com. ch. iv. Seld. Tit. of Hon. part 2. ch. v. 3 Blackst. Com. b. i. c. iv. 5 Lords' Journ. 28 Feb. 1772. 4 Co. Litt. ch. iii. § 32. p. 225. specially for the education of persons who might probably succeed to the throne.1 On the marriage of the princess Charlotte, only daughter and heiress presumptive to the Prince of Wales, afterwards king George IV., with prince Leopold of Saxe Coburg, it was enacted by statute 56 Geo. III. c. xiii., whereby that prince was naturalised, that it should be lawful for the king to give him such precedence to rank before the archbishop of Canterbury, the lord chancellor, and all other great officers, and the dukes (other than and except the dukes of the blood royal), and all other peers of the realm, as his majesty should deem fit. The prince accordingly had precedence given to him to rank after the duke of Gloucester. Thus parliament took notice of the fact, that, on the demise of king Geo. III., the princess Charlotte would be heiress presumptive to the throne. The younger sons and daughters of the reigning sovereign are entitled to a peculiar place in the House of Lords; for it is enacted by the stat. 31 Hen. VIII. c. x. that no person except the king's children shall presume to sit or have place at the side of the cloth of estate in the parliament-chamber. It was also decided by the House of Lords, to whom the settlement of the place and precedence of Edward duke of York, second son of Frederick prince of Wales, and grandson of George II., was referred by the king, that under the description of the king's children his grandsons are included; and that the duke of York ought to have place next to the duke of Cumberland, the king's youngest son, and might have a seat on the left hand of the cloth of estate.2 But when, by the decease of king George II., those royal personages ceased to be the children, and became the brother and uncle of the reigning sovereign, they, as Blackstone informs us, left their seats on the side of the cloth of estate; so that when the duke of Gloucester, second brother of king George III., 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.3 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 the king's grandchildren, while minors, did belong of right to his majesty as king of this realm, even during their father's lifetime. But the judges were unanimously of opinion that 1 Stat. 6 Geo. IV. c. 72. 6000l. a year granted for the education of Princess Victoria. Stat. 6 Geo. 4. c. 71., the same for educating Prince George of Cumberland, Parl. Deb. (new ser.) v. xiii. p. 910. May 27. 1825. Stat. 1 & 2 W. IV. c. xx. 10,000l. a-year for education of Princess Victoria, heiress presumptive. 3 Ib. 10 Jan. 1756, 2 Lords' Journ. 24 April, 1760. the care and approbation of their marriages, when grown up, belonged to the king their grandfather.1 The judges have more recently concurred in the opinion, that this care and approbation extends also to the heir presumptive to the throne; 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 further than nephews and nieces2; but examples are not wanting of its reaching to more distant collaterals.3 And now, by the stat. 12 George III. c. ii., commonly called the Royal Marriage Act, 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 queen, 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 privy council, contract and solemnise 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 solemnising, assisting, or being present at any such prohibited marriage, shall incur the penalties of the statute of premunire. It was held by the House of Lords, in the year 1845, with the unanimous opinion of the judges, that the Royal Marriage Act extends to marriages celebrated out of the dominions of her Majesty.1 Parliament has usually made some provision, on a message from the Crown, for the marriage of members of the royal family, even in the case of English princesses marrying foreign princes.5 1 Fortesc. Aland. 401, 440. Harg. St. Trials, vol. xi. p. 295. Chitty Prerog c. xvii. p. 406. 2 Blackstone cites for brothers and sisters, under king Ed. III. 4 Rymer, 392, 403, 411, 501, 508, 512, 549, 683: under Hen. V. 9 Rym. 710, 711, 741: under Ed. IV. 11 Rym. 564, 565, 590, 601: under Hen VIII. 13 Rym. 249, 423: under Ed. VI. 7 St. Trials, 3, 8. For nephews and nieces under Hen. III. 1 Rym. 852: under Ed. I. 2 Rym. 489: under Ed. III. 5 Rym. 561: under Rich. II. 7 Rym. 264: under Rich. III. 12 Rym. 232, 244: under Hen. VIII. 15 Rym. 26, 31. To great-nieces, under Ed. II. 3 Rym. 575, 644. To first cousins, under Ed. III. 5 Rym. 177. To second cousins and third cousins, under Ed. III. 5 Rym. 729: under Rich. II. 7 Rym. 225: under Hen. VI. 12 Rym. 322: under Hen. VII. 12 Rym. 529: under queen Eliz. Camden, Ann. A.D. 1562. To fourth cousins, under Hen. VII. 12 Rym. 329. To the blood royal in general, under Rich. II. 7 Rym. 787. + Sussex Peerage Case, IX. Cl. and Fin. 5 Stat. 6 & 7 Vict. c. 25. Annuity of 3000l. to the Princess Augusta of Cambridge (Duchess of Mecklenburg Strelitz), to commence from the death of her father. Parl. Deb. v. lxix. (3d ser.) June 12, 1843. The case of the Princess Royal, 1797, cited. CHAPTER IX. OF THE COUNCILS BELONGING TO THE QUEEN. THE Constitution has provided the queen with a diversity of councils, in order to assist her majesty in the discharge of her duties, the maintenance of her dignity, and the exercise of her prerogative. The first of these is the high court of parliament, whereof we have already treated, which is the greatest and highest council of advice and deliberation. Secondly, the peers of the realm are hereditary councillors of the crown, and may, as Blackstone informs us, be called together by the crown to impart their advice in all matters of importance to the realm, either in time of parliament, or when there is no parliament in being. Accordingly Bracton 3, speaking of the nobility of his time, says they might properly be called consules a consulendo; reges enim tales sibi associant ad consulendum. And it is laid down in Coke's Reports, that peers are created for two reasons: 1. ad consulendum; 2. defendendum regem1: on which account the law gives them certain great and high privileges, such as freedom from arrest in civil suits even when no parliament is sitting, because it intends that they are always assisting the queen with their counsel for the commonwealth or keeping the realm in safety by their prowess and valour.5 On the same principles, every peer of the realm is privileged to demand an audience of the queen, and to lay before her, in a respectful manner, such matters as he judges to be of importance for the public welfare. This privilege extends, by the construction of the acts of union, to peers of Scotland and Ireland, though they be not representative peers. In former times the kings of England frequently convoked what is called, by lord Hale, the magnum consilium out of parliament, and, by Blackstone, a convention of peers. It was commonly summoned upon 6 See the case of the two Hugh Spencers, in the reign of Ed. II., one of the articles of impeachment against whom was, for preventing the nobles and other councillors having access to the king to give him advice. 4 Inst. 52. some emergent occasion, that, either in respect of the suddenness would not admit of the delay necessary for the summoning of parliament, or in respect of its nature needed it not, or was intended as preparative to it. "But these grand councils," says lord Hale, “have been rarely summoned of late years; business of state being usually despatched by the privy council, and, if of very great importance, in parliament. The only grand council that hath been in my remembrance was that at York, at the coming in of the Scots." The council alluded to by lord Hale was summoned by writs under the great seal, directed to all the peers, by king Charles I. in 1640; and lord Clarendon speaks of it as an assembly which had not been convoked for a very long time.2 Blackstone informs us that there are many instances, in cases of emergency, of our princes calling for and consulting as many of the nobility as could be conveniently got together; as was particularly the case with king James II., after the landing of the Prince of Orange; and with the Prince of Orange himself before he convoked that convention-parliament which afterwards called him to the throne.3 A third council belonging to the queen are, according to lord Coke, her judges of her courts of law, for law-matters. And this appears frequently in our statutes, particularly 14 Ed. III. c. v., and in other books of law. "So that when the king's council is mentioned generally," says Blackstone, in the words of Coke, "it must be defined, particularised, and understood, according to the subject-matter; 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."4 It may, however, be very dangerous for the judges to give opinions on being consulted by the crown, touching matters which may come before them in their judicial capacity. A judge who has given a solemn opinion is liable to feel unwilling, whenever the same question comes before him, to acknowledge that his opinion was erroneous, though such may appear to be the fact when the matter comes to be fully argued before the court, by counsel, in the course of a judicial proceeding. However numerous and strong the precedents may be in favour of the crown extra-judicially consulting the judges on questions in which it is interested, it is a right to be understood with ' Hale, Jurisd. of Ho. of Lords, c. ii. p. 7, 8. Co. Litt. 110 a. 2 Clar. Hist. b. ii. year 1640. 3 Blackst. Com. b. i. c. v. p. 228. * Co. Litt. 110 a. Coke says, that "the king's judges of his to be of his council for proceedings in course of justice." courts of law are said 3d Inst. p. 125; and see Co. Litt. 304 a. But this may refer to their judicial, and not to their extrajudicial opinions. |