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 George I., it was resolved by [ *266] the opinion of ten against the other two(r), that the education and care of all the king's grandchildren while minors, belonged of right to his king of this realm, even during their father's life(s). And they all majesty as agreed, that the care and approbation of their marriages, when grown up, belonged to the king their grandfather. The judges also have more recently concurred in opinion(t), that this care and approbation extend to the presumptive heir of the crown; though to what other branches of the royal family the same extended they did not find precisely determined. The most frequent instances of the crown's interposition go no further than nephews and nieces(); but examples are not wanting of its reaching to more distant collaterals(). And the statute 6 Hen. 6, before mentioned, which prohibited 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 (y)." Therefore by the statute 28 Hen. 8, c. 18, (repealed among other statutes of treasons, *by 1 Edw. 6, c. 12,) [ *267] it was made high treason for any man to contract marriage with the king's children or reputed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. 8, before mentioned. And now, by statute 12 Geo. 3, c. 11(z), 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 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 mar (r) 11 St. Tr. 295. (8) Fortesc. 401-440. (t) Lords' Journ. 28 Feb. 1772. (u) See (besides the instances cited in Fortescue) 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 I., 2 Rym. 489; under Edward III., 5 Rym. 561; under Richard II., 7 Rym. 264; under Richard III., 12 Rym. 232, 244; under Henry VIII., 15 Rym. 26, 31. (r) To great nieces: under Edward II., 3 Rym. 575, 644. To first cousins: under Edward III., 5 Rym. 177. To second and third cousins: under Edward III., 5 Rym. 729; under Richard II., 7 Rym. 225; under Henry VOL. I.-23 VI., 10 Rym. 322; under Henry VII., 12 (2) This act was passed in consequence of the marriages of the king's brothers, the dukes of Gloucester and Cumberland, the former to the dowager-countess of Waldegrave, the latter to Mrs. Horton, daughter of Lord Irnham. For the old doctrine as to the marriages of the royal family, the student is referred to the above-mentioned opinion of the judges (Fortes. 401-440; St. Tr. xv. 1195). See also the debates which took place, and the protests of the dissentient lords, on the Royal Marriage Act (12 Geo. 3, c. 11; Parl. Deb. vol. xvii., and Journ. of the House of Lords, 3rd March, 1772). riage, shall incur the penalties of the statute of præmunire(a). The effect of this statute is to prohibit and to annul marriages contracted or solemnised in violation of its provisions whether within the realm of England or without(b). [*269] *CHAPTER V. THE COUNCILS BELONGING TO THE SOVEREIGN. In order to assist the sovereign in the discharge of his duties, the maintenance of his dignity, and the exertion of his prerogative, our law has assigned The royal coun- him a diversity of councils to advise with.(76) cils. 1. The parliament. 2. The peers. 1. The first of these is the high court of parliament, whereof we have already treated (a). 2. Secondly, the peers of the realm are by their birth hereditary counsellors of the crown, and may be called together by the sovereign 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(b). Accordingly, Bracton (c), speaking of the nobility of his time, says they might probably be called "consules, a consulendo; reges enim tales sibi associant ad consulendum." And in our law books(d), 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 (a) See also stat. 3 & 4 Vict. c. 52, 8. 4. (b) The Sussex Peerage, 11 Cl. & F. 85, where the facts were as under:- In the year 1792 a marriage had been solemnised according to the liturgy and by a minister of the Church of England, between his late Royal Highness the Duke of Sussex, the fifth son of George III., and Lady Augusta Murray, daughter of the earl of Dunmore, both then resident at Rome. The celebration of the ceremony was preceded by a written contract of marriage signed by both parties. Shortly afterwards they returned to England, where the ceremony was again performed according to the same rites. Lady Augusta died in 1830, leav ing sir Augustus D'Este and a daughter issue (c) L. 1, c. 8. (d) Nevil's Case, 7 Rep. 34; Countess of Shrewsbury's Case, 12 Rep. 96. (76) Under the government of the United States the heads of the several departments are frequently convened for the purpose of a joint consultation upon important measures. The president may 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. U. S. Const., art. 2, § 2. The heads of the departments consist of the secretaries of state, of the treasury, of war, of the navy, of the interior, of the attorney-general, and of the postmaster-general. These joint consultations are usually called "cabinet meetings." But the cabinet as a body is not a necessary part of our constitutional system of government, and their opinions have such influence upon the president as he may judge proper. As the president is the chief executive, he is considered responsible for the acts of the various secretaries, who are regarded as executive agents, and their acts are regarded, in law, as his acts. Wilcox v. Jackson, 13 Pet. 498, 513. they are always assisting the sovereign 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 crown, were in former times frequent: though the practice of convening them specially for [ *270] this purpose has fallen into disuse, by reason of the more regular meetings of parliament. Sir Edward Coke (e) gives us an extract of a record, 5 Hen. 4, 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. Other instances of this kind of meeting are to be found under our ancient kings: though this formal method of convoking the peers had been so long left off, that when king Charles I. in 1640, issued out writs under the great seal to call a council of all the peers of England to attend his majesty at York, previous to the meeting of the long parliament, the earl of Clarendon (f) 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 II., after the landing of the prince of Orange; and with the prince of Orange himself, before he summoned that convention parliament, which afterwards called him to the throne. Besides this general meeting, it has long been looked upon as the right of each particular peer of the realm to demand an audience of the sovereign, and, with decency and respect, to make an exposition of such matters as may be judged 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 [ *271] the kingdom, "that they by their evil covin would not suffer the great men of the realm, nor the king's good counsellors, to speak with or come near the king, 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 "(g). 3. A third council belonging to the king is composed, according to sir Edward Coke(h), of his judges of the courts of law, for law matters. And this appears in our statutes(i), 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. 2, 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 3. The judges. (e) 1 Inst. 110. (h) 1 Inst. 110. (i) 14 Edw. 3, c. 5; 18 Edw. 3, st. 4. the expression king's "council," were understood the king's judges of his courts of justice, the subject-matter being legal(j). 4. The privy council. 4. But the principal council belonging to the king is his privy council. And this, according to sir Edward Coke's description of it(k), 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 counsellor; 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 II. in 1679 limited it to thirty: whereof fifteen were to be the principal officers of state, and counsellors virtute officii; and the other fifteen were composed of ten lords and five commoners of the king's choosing(). But since the time of Charles II. the number of the privy council has been much augmented, and now continues indefinite. [ *272] Their number. How made. Privy counsellors are made by the sovereign's nomination, without either patent or grant; and, on taking the necessary oaths, they become immediately privy counsellors during the life of the king who chooses them, but subject to removal at his discretion. Of these some few only being actually honoured with the confidence of the sovereign are summoned to attend meetings of the council. The "cabinet "(m) consists exclusively of members of this high council; to it the lord president(n) of the council invariably belongs, and by it the government of the country is conducted. Their qualification. 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 on making the declaration and taking the oath, respectively prescribed by 9 Geo. 4, c. 17 and 21 & 22 Vict. c. 48.* However, in order to prevent foreigners from insinuating themselves into this important trust, as happened in the reign of king William in many instances, it was enacted by the act of settlement(o), that no person born out of the dominions of the crown of [* 273] England, *unless born of English parents, even though naturalised by parliament, shall be capable of being of the privy council. The duty of a privy counsellor appears from the oath of office(p), 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 counsel secret. 4. To avoid corruption. 5. To help and strengthen the execution of what shall be there resolved. 6. To withstand all persons who would attempt the contrary. Their duty. (j) 3 Inst. 125. As to the right of the crown to consult the judges extra-judicially, see Broom's Const. L. 148, et seq. (k) 4 Inst. 53. (1) Temple's Mem. Pt. 3. (m) Each member of which is usually invested with some important office in the ministry. (n) An officer who, by the statute 31 Hen. 8, c. 10, s. 4, had precedence next after the lord chancellor and lord treasurer. Lord Coke says (4 Inst. 55): "There is, and of ancient (p) 4 Inst. 54. The oath of allegiance to be taken by privy counsellors is now such as prescribed by the Promissory Oaths Act, 1868, 31 & 32 Vict. c. 72. See s. 14. 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 functions of the privy council are twofold: 1st, political; 2ndly, magisterial and judicial. 6. By those members of the privy council, designated the cabinet, the government of the country and the general administration of affairs are subject to the approval of the sovereign-in fact, conducted. The cabinet, accordingly, consists of the highest officers of state. 1. The first lord of the treasury (anciently, the lord treasurer), who has been in the first instance entrusted with the formation of the ministry, and who, during its existence, continues to be its "premier" and head. 2. The lord chancellor. 3. The president of the council (q). 4. The lord privy seal(r). 5. The chancellor of the exchequer, who is especially charged with the management of the national finances. The home secretary(s), who exercises a *general surveillance over the [* 274] administration of the law and the exercise of the royal prerogative of mercy in regard to convicted criminals, and likewise superintends the magistracy and police. 7. The foreign secretary, who has exclusive charge of the interests of the British empire abroad, and extends protection to subjects of the crown in foreign countries. 8. The secretary for the colonies. 9. The secretary for India(t). 10. The secretary for war(u). 11. The first lord of the admiralty. 12. The president of the board of trade. 13. The president of the poor law board. 14. The postmaster-general; and 15, the chancellor of the duchy of Lancaster, an officer of high antiquity, whose duties, however, except such as are legal and are performed by his deputy, the vice-chancellor, have become at the present day almost nominal. Although the cabinet usually consists of the above-mentioned officials, it does not always exclusively do so, for the holding of office under the crown is not essential to the constitution of a member of the cabinet. Of the above members of the government, two it may be noticed preside over particular departments, which are technically to be regarded as committees of the privy council, viz.: 1. the committee "appointed for the consideration of matters relating to trade and foreign plantations," the functions of which for furthering our foreign and internal commerce are very miscellaneous and important(); and 2. the committee of the privy council on education, a board not possessing compulsory powers, but principally charged with the distribution of *money voted by parliament for purposes of public educa- [* 275] tion. Irrespective of the political functions which devolve upon that section of the privy council charged specifically with the government of the country, this council is occasionally summoned to meet in the presence of the sovereign for (a) Supra, note (n). (7) "This officer has the custody of the privy seal, but no power to put it to any grant without royal warrant. The privy seal derives its name from the secresy with which it was used. The difference between it and the great was, that the privy seal was at tached to grants of favours as charters, pardons, &c.—and the great seal to grants of rights." Bennett's Const. Hist. Eng. 111. (8) As to the office of secretary of state generally, its origin and functions, see per Lord Camden, Entick v. Carrington, 19 St. (t) Ante, p. 129. (u) See stat. 26 & 27 Vict. c. 12. (x) See, for instance, the following statutes: -25 & 26 Vict. c. 63; 17 & 18 Vict. c. 104; 16 & 17 Vict. c. 129 (concerning merchant ships and seamen); 14 & 15 Vict. c. 64 (concerning railways); 25 & 26 Vict. c. 89 (concerning trading companies); 13 & 14 Vict. c. 104 (concerning copyright of designs). |