due to the crown, to add likewise the quantity of gold or other renders reserved to the queen. (n) These were frequently appropriated to particular purposes; to buy wool for her majesty's use, (o) to purchase oil for her lamps, (p) or to furnish her attire from head to foot, (q) which was frequently very costly, as one [*221] single robe, in the fifth year of Henry II, *stood the city of London in upwards of fourscore pounds. (r) A practice somewhat similar to that of the eastern countries, where whole cities and provinces were specifically assigned to purchase particular parts of the queen's apparel. (s) And, for a further addition to her income, this duty of queen-gold is supposed to have been originally granted; those matters of grace and favour, out of which it arose, being frequently obtained from the crown by the powerful intercession of the queen. There are traces of its payment, though obscure ones, in the book of domesday, and in the great pipe-roll of Henry the First. (t) In the reign of Henry the Second the manner of collecting it appears to have been well understood, and forms a distinct head in the ancient dialogue of the exchequer, (u) written in the time of that prince, and usually attributed to Gervase of Tilbury. From that time downwards it was regularly claimed and enjoyed by all the queen consorts of England till the death of Henry VIII; though, after the accession of the Tudor family, the collecting of it seems to have been much neglected: and there being no queen consort afterwards till the accession of James I, a period of near sixty years, its very nature and quantity became then a matter of doubt; and, being referred by the king to the chief justices and chief baron, their report of it was so very unfavorable, (v) that his consort Queen Anne (though she claimed it) yet never thought proper to exact it. In 1635, 11 Car. I, a time fertile of expedients for raising money upon dormant precedents in our old records (of which ship-money was a fatal instance,) the king, at the petition of his queen, Henrietta Maria, issued out his writ (w) for levying it; but afterwards purchased it of his consort at the price of ten thousand pounds; finding it, perhaps, too trifling and troublesome to levy. And when afterwards, at the [*222] restoration, by *the abolition of the military tenures, and the fines that were consequent upon them, the little that legally remained of this revenue was reduced to almost nothing at all, in vain did Mr. Prynne, by a treatise which does honour to his abilities as a painful and judicious antiquary, endeavour to excite Queen Catharine to revive this antiquated claim.

Another ancient perquisite belonging to the queen consort, mentioned by all our old writers, (x) and, therefore only, worthy notice, is this: that, on the taking of a whale on the coast, which is a royal fish, it shall be divided between the king and queen; the head only being the king's property, and the tail of it the queen's. "De sturgoine observetur, quod rex illum habebit integrum: de balena vero sufficit, si rex habeat caput, et regina caudam." The reason of this whimsical division, assigned by our ancient records, (y) was, to furnish the queen's wardrobe with whalebone. (2)

But farther, though the queen is in all respects a subject, yet, in point of the security of her life and person, she is put on the same footing with the king. It is equally treason (by the statute 25 Edw. III,) to compass or imagine the death

(n) Bedefordscire Maner. Lestone redd. per annum xxii lib. fc.; ad opus reginæ ii ucias auri.— Herefordscire. In Lene, &c., consuetud, ut præpositus manerii veniente domina sua (regina) in maner, præsentaret ei xviii oras denar, ut esset ipsa lato animo. Pryn. Append. to Aur. Reg. 2, 3.

(0) Causa coadunandi lanam reginæ. Domesd. ibid.

(p) Civitas Lundon. Pro oleo ad lampad. reginæ. (Mag. rot. pip. temp. Hen. II, ibid.)

() Vicecomes Berkescire. xvi 1. pro cappa reginæ. (May, rot. pip. 19.—22 Hen. II, ibid.) Civitas Lund cordubanario reginæ xx 8. (Mag. rot. 2 Hen. II. Madox. Hist. Exch. 419.)

(r) Pro roba ad opus reginæ, quater xx l. et vi s viii d. (Mag. rot. 5 Hen. II, ibid. 250 )

(8) Solere aiunt barbaros reges Persiarum ac Syrorum-uxoribus civitates attribuere, hoc modo; hæc civitas mulieri redimiculum præbeat, hæc in collum, hæc in crines, &c. (Cic. in Verrem, lib. 3. cap. 33.)

(t) See Madox, Disceptat. Epistolar. 74. Pryn. Aur. Reg. Append. 5. (u) Lib. 2, c. 26.

(v) Mr. Prynne, with some appearance of reason, insinuates that their researches were very superficial. (Aur. Reg. 125.)

(w) 19 Rym. Fæd. 721.

(y) Pryn. Aur. Reg. 127.

(x) Bracton, 1. 3, c. 3. Britton, c 17. Flet. 1. 1, c. 45 et 46.

(2) [The reason is more whimsical than the division, for the whalebone lies entirely in the head.]

of our lady the king's companion, as of the king himself: and to violate, or defile the queen consort, amounts to the same high crime; as well in the person committing the fact, as in the queen herself, if consenting. A law of Henry the Eighth (2) made it treason also for any woman, who was not a virgin, to marry the king without informing him thereof: but this law was soon after repealed, (3) it trespassing too strongly as well on natural justice as female modesty. If, however, the queen be accused of any species of treason, she shall, (whether consort or dowager) be tried by the peers of parliament, as Queen Ann Boleyn was in 28 Hen. VIII.

The husband of a queen regnant, as Prince George of Denmark was to Queen Anne, is her subject: and may be guilty of high treason against her: but, in the instance of conjugal infidelity, he is not subjected to the same penal *restrictions, for which the reason seems to be that, if a queen consort [*223] is unfaithful to the royal bed, this may debase or bastardize the heirs to the crown; but no such danger can be consequent on the infidelity of the husband to a queen regnant.

A queen dowager is the widow of the king, and, as such, enjoys most of the privileges belonging to her as queen consort. But it is not high treason to conspire her death, or to violate her chastity, for the same reason as was before alleged, because the succession to the crown is not thereby endangered. Yet still, pro dignitate regali, no man can marry a queen dowager without special licence from the king, on pain of forfeiting his lands and goods. This, Sir Edward Coke (a) tells us, was enacted in parliament in 6 Hen. VI, though the statute be not in print. But she, though an alien born, shall still be entitled to dower after the king's demise, which no other alien is. (b) A queen dowager, when married again to a subject, doth not lose her regal dignity, as peeresses dowager do their peerage when they marry commoners. For Catherine, queen dowager of Henry V, though she married a private gentleman, Owen ap Meredith ap Theodore, commonly called Owen Tudor, yet, by the name of Catherine, queen of England, maintained an action against the bishop of Carlisle. (4) And so, the queen dowager of Navarre, marrying with Edmond earl of Lancaster, brother to King Edward the First, maintained an action of dower (after the death of her second husband) by the name of queen of Navarre. (c)

The prince of Wales, or heir-apparent to the crown, and also his royal consort, and the princess royal, or eldest daughter of the king, are likewise peculiarly regarded by the laws. For, by statute 25 Edw. III, to compass or conspire the death of the former, or to violate the chastity of either of the latter, are as much high treason as to conspire the death of the king, or violate the chastity of the queen. And this upon the same reason as was before given: because the prince of Wales is next in succession to the crown, and to violate his wife might taint the blood royal with bastardy: and the eldest daughter of the king is also alone inheritable to the *crown, on failure of issue male, and therefore more [*224] respected by the laws than any of her younger sisters, insomuch that upon this, united with other (feudal) principles, while our military tenures were in force, the king might levy an aid for marrying his eldest daughter, and her only. The heir-apparent to the crown is usually made prince of Wales, (5) and

(z) Stat. 33 Hen. VIII, c. 21. (a) 2 Inst. 18. See Riley's Plac. Parl. 672. (b) Co. Litt. 31. b. (c) 2 Inst. 50.

(3) [This was a clause in the act, which attainted Queen Catharine Howard, and her accomplices, for her incontinence; but it was not repealed till the 1 Edw. VI, c. 12, which abrogated all treasons created since the memorable statute in the 25 Edw. III.]

(4) [The foregoing proposition is not really illustrated by the case of Catherine, inasmuch as her marriage with Tudor was carefully concealed, and not discovered till after her burial, when it produced great public excitement and uproar, as she left four children. It is needless to remind the reader that Tudor proved the ancestor of a new dynasty of British sovereigns.]

(5) [This creation has not been confined to the heir-apparent, for both Queen Mary and Queen Elizabeth were created by their father, Henry VIII, princesses of Wales, each of them at the time (the latter after the illegitimation of Mary) being heir presumptive to the crown. 4 Hume, 113.

Edward II was the first prince of Wales. When his father had subdued the kingdom of

earl of Chester, by special creation, and investiture: but, being the king's eldest son, he is by inheritance duke of Cornwall, without any new creation. (6)

The rest of the royal family may be considered in two different 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 number, 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 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. (e)

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 [*225] 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 (f) 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, (g) 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' 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 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,

(d) 8 Rep. 1. Seld. Tit. of Hon. 2, 5.

(e) See Essay on Collateral Consanguinity, in Law Tracts, 4to: Oxon. 1771. (ƒ) 4 Inst. 362. (g) Tracts, p. 301.

Wales, he promised the people of that country, upon condition of their submission, to give them a prince who had been born among them, and who could speak no other language.

Upon their acquiescence with this deceitful offer, he conferred the principality of Wales upon his second son, Edward, then an infant. Edward, by the death of his eldest brother, Alfonso, became heir to the crown, and from that time, this honor has been appropriated only to the eldest sons or eldest daughters of the kings of England. 2 Hume, 243.]

(6) [The king's eldest living son and heir apparent takes, under the grant ann. 11 E. III, the dukedom of Cornwall, and retains it during the king, his father's life: on the accession of such duke to the crown, the duchy vests in the king's eldest son living, and heir-apparent. But, if there be no eldest son and heir-apparent, the dukedom remains with the king, the heir-presumptive in no case being entitled to the dukedom. See 1 Ves, 294; Collin's Bar. 148. The rule may be shortly stated: until a prince be born, the king is seized; but when born, the prince becomes seized in fee of the possessions; and, except as to presentations to benefices, leases generally made by the king are voidable by scire facias, sued at the instance of the prince. See Com. Dig. tit. Roy, Geo. V. Id. 280, 281; Ča. Ch. 215. But, as to what leases or grants made by the king shall be good, see stat. 33 Geo. II, c. 10. If the eldest son die, and leave a son, such son would not take; but the duchy reverts to the crown. And there is no minority with reference to the possessions of a duke of Cornwall.

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, (1) 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 wanting of its reaching to more distant collaterals. (n) And the stat- [*226] ute 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)

(h) Lords' Journ. 24 Apr. 1760. (k) Fortesc. Al. 401-440.

(i) Lords' Journ. 10 Jan. 1765.

(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 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. 264-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. Parl. 672.

(7) A full report of the arguments of the judges may be seen in State Trials, vol. xi. 295. (8) [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 145

VOL. I.-19

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.

[*228] *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 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.