diffused. 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 upon failure of the nearer lines. For, though collateral consanguinity is regarded indefinitely, with respect to inheritance or succession, yet it is, and can only be regarded within some certain limits in any other respect, by the natural constitution of things and the dictates of positive law *.

THE younger sons and daughters of the king, and other branches of the royal family, who are not in the immediate line of succession, were therefore little farther regarded by the antient law, than to give them to a certain degree precedence before all peers and public officers, as well ecclesiastical as temporal. This is done by the statute 31 Hen. VIII. c. 10, which enacts, 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; and that certain great officers therein named shall have precedence above all dukes, except only such as shall happen to be the king's son, brother, uncle, nephew (which sir Edward Coke' explains to signify grandson or nepos), or brother's or sister's son. Therefore, after these degrees are past, peers or others of the blood royal are entitled to no place or precedence except what belongs to them by their personal rank or dignity. Which made sir Edward Walker complain, that by the hasty creation of prince Rupert to be duke of Cumberland, and of the earl of Lennox to be duke of that name, previous to the creation of king Charles's second son, James, to be duke of York, it might happen that their grandsons would have precedence of the grandsons of the duke of York.

INDEED, under the description of the king's children his grandsons are held to be included, without having recourse to sir Edward Coke's interpretation of nephew: and therefore [ 225*] when his late majesty king George II. created his grandson

e

See essay on collateral consanguinity,

in Law-tracts, 4to. Oxon. 1771.

f 4 Inst. 362.

Tracts, p. 301.

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,

(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,

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.

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.

7 Rep. 34. 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

d Co. Litt. 110.

e Hist, b.2