THE rest of the royal family may be considered in two dif ferent lights, according to the different senses in which the term, royal family, is used. The larger sense includes all those, who are by any possibility inheritable to the crown. Such, before the revolution, were all the descendants of William the conqueror; who had branched into an amazing extent, by intermarriages with the ancient nobility. Since the revolution and act of settlement, it means the protestant issue of the princess Sophia; now comparatively few in num ber, but which in process of time may possibly be as largely 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 of Cornwall must be both the king's eldest son and heir apparent to the crown; this appears from a great variety of records, que les fitz eisnes des rois d'Engleterre, c'est assavoir, ceux qui serroient heirs proscheins du roialme d'Engleterre, fuissent ducs de Cornewaile. Rot. Parl. 9 Hen. V. No. 20. In a charter of livery of the dutchy by Ed. IV. to his eldest son prince Edward, recited in the rolls of parliament, the following sentence is part of the preamble: Filii primogeniti regum Angliæ primo nativitatis suæ die majoris atque perfectæ præsumuntur ætatis, sic quod liberationem dicti ducatûs eo tunc à nobis petere valeant atque de jure obtinere debeant ac si viginti et unius annorum ætatis plenæ fuissent. Rot. Parl. 12 Ed. IV. No. 14. From this and from other authorities it follows, that a duke of Cornwall is born of full age, or is subject to no minority with respect to his enjoyment of the possessions annexed to the dukedom. This is a strange species of inheritance, and perhaps is the only mode of descent which depends upon the authority of a statute. In the Prince's case, reported by lord Coke, the question was, whether the original grant to Edward the Black Prince, who was created in the 11th of Ed. III. duke of Cornwall, and who was the first duke in England after the duke of Normandy, had the authority of parliament, or was an honor conferred by the king's charter alone? If the latter, the limitation would have been void, as nothing less than the power of parliament can alter the established rules of descent. But notwithstanding it is in the form of a charter, it was held to be an act of the legislature. It concludes, per ipsum regem et totum concilium in parliamento. 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 lawe. 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 ancient 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 [225] 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 complaing, that by the hasty creation of prince Rupert to be duke of Cumberland, and of the earl of Lenox 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 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. 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 peersi, 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 lifek (11). 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 niecesm; but h Lords' Journ. 24 Apr. 1760. i Ibid. 10 Jan. 1765. k Fortesc. Al. 401-440. 1 Lords' Journ. 28 Feb. 1772. 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 Hen. VIII, 13 Rym. 249.423: under Edw. VI, 7 St. Tr. 3. 8. For nephews and nieces; under Henry III, 1 Rym. (11) The authorities and arguments of the two dissenting judges, Price and Eyre, are so full and cogent, that if this question had arisen before the judges were independent of the crown, one would have been inclined to have suspected the sincerity of the other ten, and the authority of the decision. See Harg. St. Tr. 11 vol. 295. examples are not wanting of its reaching to more distant collaterals". And the statute 6 Henry VI. before-mentioned, which prohibits the marriage of a queen dowager without the consent of the king, assigns this reason for it (12): "because the dis"paragement 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 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. beforementioned. 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. 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. n 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 (12) The occasion of this statute was the marriage of Catherine, mother to Hen. VI, with Owen Tudor, a private gentleman. See p. 203 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 properly be called "consules, a consulendo; reges "enim tales sibi associant ad consulendum." 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 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 valor. a Co. Litt. 110. b l. 1. c. 8. c 7 Rep. 34. 9 Rep. 49. 18 Rep. 96 |
