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mittee, upon preparing and settling the same, shall arise, upon the two Articles of Impeachby reason of the act of parliament in the 7th 'ment exhibited against the said Earl for High of king William, for regulating Trials in Treason, or either of them; but') And, after cases of Treason; and the Standing Order of debate; this House, of the 28th of May, 1624, touch- “ The question was put, Whether those ing judicature, and the allowance of counsel words shall stand part of the said Resolation ? in cases of moment; he was directed, by the It was resolved in the affirmative. said Comınittee, to inform the House thereof, “ Then the five following Resolutions were as a matter worthy of their lordships' particular read, and severally agreed to. consideration.

“ And the next Resolution, for preventing “ Then the preamble of the said Act, and the return of coaches through King-street, the said Standing Order of this House, being during the said Trial of the earl of Oxford, till read:

five o'clock in the afternoon, being read: “ It was proposed, to agree to the said Re. “ It was agreed, to alter the time, by insert. solution. And the same being objected to : ino, instead thereof, seven o'clock in the even

“ It was proposed, as an amendment, to ing. leave out these words; viz. "to be heard, touch- * And then the last Resolution was also • ing any point or matter of law, if any such read, and agreed to."

456. Proceedings on the Case concerning the King's Prerogative

in respect to the Education and MARRIAGE of the ROYAL

FAMILY : Hilary Term, 4 GEORGE I. A. D. 1718. [“ The following Case is chiefly taken from the the policy of the new regulation concerning

Reports of lord Fortescule, who was a judge this important subject. In the House of of the Common-Pleas at the time the opi- Lords two protests were signed against passnion of all the judges was taken upon it. ing the act; and these will enable the reader Fortesc. Rep. 401. The only addition we to judge, what were the principal objections make to lord Fortescue's state of the argu- to it. See the History and State Papers in ments is to supply a considerable deficiency the Annual Register for 1772, pp. 232, et in the copy of the written opinion given by seq. and Almon's Parl. Deb, for the same the two dissenting judges. What we have year. Whilst the act was under consiintroduced for this purpose is the opinion of deration of the Lords, they consulted the the two dissenting judges at length, instead judges on the extent of the prerogatire of of the imperfect copy of it in lord Fortescue. the crown in respect to marriages of the This part is taken from a book entitled the royal family; who concurred in opinion, Life of Judge Price. In lord Fortescue's that the approbation of the marriages of the Report, the Case is called • The grand Opi- king's grand-children belonged to his manion for the prerogative concerning the jesty, and also the approbation of the marroyal family.

riage of the presumptive heir of the crowd, "Since the Case we now present to the reader, in whatever degree related to the king; but

one part of the subject of it has undergone confessed, that they could not precisely as. a parliamentary discussion, the occasion of which was the act passed in 1772, for better and of religion. A very eminent member of regulating the marriages of the royal family. that House, who at different periods of the 12 G. 3, c. 11. The preamble to that act present reign filled very high offices in the contains a declaration, that the kings of state, represented to me Lowth's speech as this realm bave ever been intrusted with highly dignified, impressive and persuasive, the care and approbation of such marriages.' and superior to that, which was upon the same The generality of this recital, together with occasion delivered by lord Chatham. the restraints introduced to guard the de- This conscientious opposition lost not Lowth scendants of George the second from im- the royal favour, which be well deserved. In proper marriages, caused much debate in the year 1777, be was made bishop of Oxford ; parliament;t both on the ancient law and and in 1783 the archbishopric of Canterbury was

offered to him. Some apparently groundless * See in vol. 12, p. 200, an account of the doubts have been stated concerning the opera. Trial of the Seven Bishops in a letter from tion of the Royal Marriage Act upon marMr. Robert Price to the duke of Beaufort. riages celebrated in foreign countries, and also

t It may be worth notice, that in the House concerning marriages with Papists celebrated of Lords, the learned and pious Lowth, then under the provisions of the second clause of bishop of Oxford, who was much attached to the statute. These topics are treated of in the king, not only voted but spoke against this the recently published first volume of Mr. Bill, as repuguant to the precepts of morality Madock's Life of Lord Sominers.

" The au

In the years,

certain, to what other branches of the royal | Mr. Christian, (animadverting in a note to family this prerogative extended. Besides

Black. Comm. book 1, ch. 4, vol. 1, p. 225) the instances of the crown's interposition upon the case in the text, says, noticed in the following case, our late most thorities and arguments of the two dissentdistinguished commentator on the law of ing judges, Price and Eyre, are so full and England refers to many others, which he cogent, that if this question had arisen bearranges according to the degrees of rela- fore the judges were independent of the tionship. 1 Blackst. Comment. sih edit. crown, one would have been inclined to 225. See, also, the Case of the countess of have suspected the sincerity of the other ten, Shrewsbury, ante, vol. 2, p. 769.”]

and the authority of the decision.” • Whoever consults the Case, referred to the With respect to the commissions of the judges,

Judges by George the 1st upon the ques- and other particulars respecting their detion, whether the grandfather being king, pendence upon the crown, during a consi. or the father being only heir apparent, hath derable portion of the seventeenth century, a right to take care of the education of the see at vol. 12, p. 257, some interesting inroyal children, will find that the material

formation, collected by the very learned precedents are too few in number to settle vindicator of Mr. Fox’s History. that very important point.” Barrington, Obs. on 1 Ric. 2.

As to the succession of some of the Judges,

during the last years of Charles the 21's Mr. Barrington was led to this observation by reign, Mr. East has inserted the following

consideration of the uncertainty in our law, particulars in a Note to p. 105, of the 14th respecting the appointment of a protector, volume of his Reports : guardian or regent for the realm, and for

“ Sir Francis Pemberton was Chief Justice a minor king or queen. Other incidents to

of the Common Pleas at the time of Lord the office of protector, guardian, or regent, seem to be equally unsettled by the common

Russel's trial at the Old Bailey, on the 13th law, or by any fundamental statute. See

of July, 1683, and was succeeded by sir Blackst. Comm. book 1, chap. 7, vol. 1, p.

Thomas Jones in the September following. 248. Nor are these the only important

A memorandum, in p. 10, (of the second points of constitutional law to which this

series of paging) of the Great Quo Warobservation is applicable.

ranto case against the city of London, says 1788, 1789, great difference of opinion pre

that when the demurrer was joined, viz. vailed among the most eminent lawyers, as

Mich. Term, 34 Car. 2, (A. D. 1682,) Mr. well as statesmen, as to the mode of sup.

Serj. Pemberton was Chief Justice of the plying the executive power in cases of de

King's-bench, but before Hilary Term, that lirium, or other such incapacity of the king.

it came to be argued, he was removed and

made Chief Justice of the Common Pleas, (It is to be hoped, that Mr. Hargrave will

and sir Edmund Saunders was made Chief incorporate into bis Jurisconsult Exercitations, now in course of publication,) the

Justice of the King's-bench. And it apvaluable tract, which he published, under pears from p. 119, (the last series of paging) the title of Brief Deductions,' &c. as

of the same book, that judgment was given to this question.). In like manner, 1 ap

in Trinity Term, 35 Car. 2, and that the

Lord Chief Justice Saunders died either the prehend it is still left unsettled, how the kingly office should be executed, or the exe

day on which judgment was given, or the cutive power supplied, upon the death of

next day. king leaving kindred, whose right of suc- Amongst the rolls in the Crown-office of cession might be defeated by birth of a the King's-bench, I found writs tested Edcbild, who at the time of such death was in mund Saunders in Hilary Term, 34 and 35 • ventre sa mere.'*

Car. 2.

Amongst others there is one so Ur. Burke, in his Reflections on the French Re- tested on the 29th of Japnary, 34 Car. 2,

volution, has with admirable eloquence ex- and another on the 12th of Feb. 35 Car. 2, posed the folly of previously subjecting every the commencement of the reign being on political contingency to the generalities of ab- the 30th of January. The writs continue stract speculation. On the other hand, the in- tested by Saunders into Trinity Term, 35 convenience of leaving great questions to be Car. 2; one so tested was of the 8th of June, determined in the moment of emergchcy is 35 Car. 2. But on the 27th of June, 35 obvious.

Car. 2, they are tested Thomas Jones, who

was then the senior puisne judge of the court, * In the debate in the House of Commons, in whose name writs are tested on the vaopon the Address in answer to the king's Mes- cancy of the chief justiceship. From the sage (Nov. 11th, 1680) Mr. Trenchard says, number of writs testeil on the 27th of June, • If a king die, leaving a queen, the next heir it seems as if it was the last day of Trinity is presently proclaimed, to prevent an inter- Term in that year. The first writ I found regnum; though there be a possibility of the upon the roll tested George Jefferies, as chief queen's being with child, to whom the right justice, was of the date of the 23rd of Octoshould in the first place belong."

ber, 35 Car. 2. [N. B. Michaelmas Term

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has since been contracted by st. 24 G. 2, c. contemplation of his power to displace them 48.] The next is of the 3rd of November, upon his accession, or to conciliate his fa. though Rapin (vol. 2, p. 733,) says, that sir vour by indications of a disposition readily to George Jefferies was appointed chief justice yield to the will and pleasure of the prince,

of the King's- bench, in December, 1683. for the time being, on the throne.*
The Chronica Judicialia state, that sir Francis To remedy this inconvenience, his present ma-

Pemberton was appointed chief justice of the jesty, king George the 3rd, in the commence.
Common Pleas, on the 22nd of January, ment of his reign, (graciously declaring,
1682 ; which as the civil year then began in “ That he looked upon the independence and
March, answers to the day before Hilary uprightness of the judges, as essential to the
Term, 34 and 35 Car. 2; and in Trinity impartial administration of justice ; as oee of
Term following, (i. e. Tr. 35 Car. 2,) which the best securities of the rigbts and liberties
was just before the trial of lord Russell, it of his subjects; and as most conducive to the
appears by the book of fines in the Common honour of the crown ;') was pleased to re.
Pleas, that sir Francis Pemberton, as chief commend, that the judges should be conti-
justice, took acknowledgments of fines in nued in their offices during their good beha-
that term. The Chronica Judicialia men. viour, notwithstanding any demise of the
tion the appointment of sir Thomas Jones, as grown; which was accordingly enacted by
lord chief justice of that court, on the 29th of stat. 1 George 3, c. 23.]
September, 1683.

The judges met on the 22nd of January in See, too, in pp. 264, 265, of vol. 12, the Reso- Hilary term in the fourth year of his late ma. lutions of the Commons in 1080.

jesty king George, and in the year of our Lord Bishop Burnet, in relating the bistory of the 1718, at the right honourable ihe lord Parker's year 1692, tells us, that “ Among ihe bills chambers in Serjeant's-Ion in Fleet-street

, that were offered to the king, at ihe end of be being then lord chief justice of England

, the session, one was to secure the judges' (afterwards lord chancellor of Great Britain salaries ; and to put it out of the king's in pursuance of the then lord chancellor Covcommission during their good behaviour; letter was read, which was to signify the king's power to stop them. The judges had their per's letter from the king.

The judges being met, the chancellor's yet their salaries were not so secured to them, but that these were at the king's plea- pleasure, that all his judges should meet, with sure. But the king put a stop to this, and all convenient speed, and give him their opirefused to pass the Bill: for it was represent

nion upon the following question, t viz. ed to him, by some of the judges themselves,

“ Whether the education, and the care of that it was not fit they should be out of all

the persons of his majesty's grand-children, dependence on the court; though it did not eldest son of his royal bighness the prince of

now in England, and of prince Frederick, appear, that there was any hurt in making Wales, when his majesty shall think fit to judges, in all respects, free and indepen-cause him to come into England, and the oro dent."

dering the place of their abode, and appointing By stat. 13 W. 3, c. 2, it is enacted, That the their governors, governesses and other instruccommissions of the judges shall be made, tors, attendants and servants, and the care and quamdiu se bene gesserint,' and their salaries ascertained and established: but that it * Yet in the trial (April 30th, 1792,) of an may be lawful to remove them on the ad- action, which was brought by Mr. Fox against dress of both Houses of Parliament (see 1 Mr. Horne Tooke, the defendant said

, " I do Blackst. Comm. 267.) By the operation, not believe the dependence of the judges on the therefore, of this statute, those most im- crown was so great formerly as at present, I portant and reverend magistrates are, in the believe the judges then were less dependent on exercise of their functions, exempted from the crown, and more dependent on the people, all influence, arising from the apprebension than they are at this bour.” that they may be removed from their offices Of the popularity to be sought by a judge by the arbitrary authority of the prince upon lord Mansfield said something in his speech the throne, (as to which see Mr. Serjeant (see it in this Collection,) June 8, 1968, in Heywood's Vindication as already cited. Wilkes's Case ; and what lord Mansfield then See, too, in particular, Whitelucke's anecsaid, Mr. Horne Tooke afterwards made the dote relative to the conduct of judge Croke subject of some contemptuous animadversion. in the Ship-money Case.) Stili, however, it See, in this Collection, his speech on Nov. 24, was held, that tbeir commissions became va- 1777, when he came to receive the judgment cant upon the demise of the crown, until by of the court of King's-bench, upon his convic1 Ann. stat. 1, c. 8, they were continued for tion for publishing a libel against the king's six months after such event: so that upon a troops. prospect of the approaching termination of a + As to the king's right extrajudicially to reigo, the judges were liable to be seduced demand the opinions of the judges on ques. into disingenuous compliances with the tiops in wbich the crown is interested, See wishes of the apparent successor, by the Mr. Hargrave's gote (5) to Co. Lit. 110, a.

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approbation of their marriages, when grown was abroad, and with ber own mother in up, do belong of rigbt to his majesty, as king France, and yet the king here in England of this realm, or not."

made the match with Alexander king of ScotSoon after the judges were met, they had a land. The king says, “ dabimus in uxorem, message sent them, from his royal highness et nos et concilium nostrum fideliter laborabimus George, then prince of Wales, now king of ad eam habendam.” Rymer, 1 tom. p. 210, Great Britain, by his secretary Mr. Molineux, 356. 4 H. 3, anno 1220. Et si forte eam now deceased, and by his own solicitor-gene. habere non poterimus, dabimus ei in uxorem ral, Mr. Carter, since sir Lawrence Carter, a Isabellam junior' sororem nostram.” And many baron of the Excheqner, to this effect : that other stroog expressions there are, as his royal bighness the prince of Wales, under- tabimus et concessimus in uxorem ; labora standing that a question relating to bis right bimus per nos et amicos nostros.”' Rymer, of guardianship to his children was before vol. 1, 241, 407. Madox Tit. Aid 412. H. 3 them, desired, that before any determination had aid to marry his sister. 12 Co. Rep. was had upon it, they would give leave that | 29, 30. he inight be heard by bis counsel concerning The king of Sweden was proposed to the the same, and then the messengers withdrew. lady Elizabeth, (afterwards queen Elizabeth)

After which the judges having consulted for marriage; but she refused, because it was together about this Message, agreed on this not first communicated to her majesty the answer, viz.

queen. Cotton's Record), 326. “We have considered of what you have been There is also the famous case of the coun. pleased to propose from his royal highness tess of Shrewsbury, and she was sent to the the prince of Wales, and we are all of opioion, Tower, and imprisoned there for a bigh that in cases wherein our advice is required by misdemeanor and great contempt, in being his majesty, we cannot hear counsel' without privy to the flight of lady Arabella, who being bis majesty's leave.”

of the blood royal, had married one Mr. SeyThe same messengers being called in again, mour without the consent of the king, and he the said answer was given to them by the lord was likewise imprisoned in the Tower for that chief justice Parker in the name of all the marriage. * Co. Rep. 12, p. 94. judges.

In the case of the duke of York, being Thereupon the judges agreed to acquaint to be married to the duchess of Modena, there, the lord 'chancellor with this message, and was an Address of the House of Commons to with the answer, in order to acquaint the king. the king, that he might not be married to that

Immediately afier this, without loss of time, princess. The king's Answer (which was rethe judges entered on the consideration of the markable) was, that the marriage was comquestion referred to them.

pleted, and by his royal authority and conJust. Blencow. I do not see, my lords, but sent. See lord Clarendon's History. marriage takes in the whole question, but let About December, 1699, an Address was us debate the whole matter minutely, and give moved for by the House of Commons to the our opinions seriutim.

king, to remove the then bishop of Salisbury Just. Dormer. For the king. What is very from being preceptor to the duke of Glouces. material to this purpose, is, the Marriage Ar. ter, and it passed in the negative, whicin-shews. ticles of Car. 1, ihen prince of Wales, with the the parliament thought the power to be in the infanta of Spain, in the life-time of bis father, crown. king James 1, under the great seal. One of Another instance is, the case of the earl of those Articles relates to the education of the Marlborough. The king appointed him gosissue of that marriage, which was, that the vernor of the duke of Gloucester, as a mark sons and daughters, born of that marriage, of bis qualifications for an employment of so should be under the care, and brought up by great a trust, and as an instance of this prethe infanta of Spain until the age of ten years. rogative. Thereupon the prince himself says, if they So in the case of the marriage of the printhought that term was not enough, that he cess of Orange, it was made wholly by the would intercede with bis father, the king, that king, against the fatber's consent. the ten years of education with the infanta In Rymer, tom. 8, 698, there is a power might be lengthened to twelve years: and given by the king to certain lords to treat of a says furtber, and I promise, and freely, and marriage of the king's son, the prince of of nine own accord swear, if it happen that the intire power of disposing this matter be * See vol. 2, p. 1. Auch very curious indevolved to me, I will approve of the said term formation and learning connected with this

And these Articles were marriage is to be found in Mr. Hargrave's sworn to by both king and prince. 1 Rush. Preface to lord Hale's Treatise on the Jurisworth 86, 87.

diction of the Lords' House, and in Mr. Chief Justice King, afterwards lord chan- Luders's Tract on the right of succession to cellor, quoted Rymer, 4 tom. fol. 605, 608. the crown in the reign of queen Elizabeth : -8 Edw, 3, and fol. 620 and 624.

and there are some interesting Articles relative Lord Parker, Chief Justice. The case of to it among the Harl, and Cotton MSS. U. 3, is very material. The king's sister Joan in the British Museuin. VOL. XY.

4 H

of twelve years:

Wales, with one of the daughters of Joho | the reason should be stronger for the price duke of Burgundy, and earl of Flanders. to have greater power than ordinary persons

bave. Now as to Bracton, who treats of this Friday, Jan. 24, 1717.

subject, that is transcribed from Justidiag.

Therefore that book and the instance there The Judges met again at the same place, ought not to be regarded, for he deviates from and thereupon the passage in Edw. 5, was read out of Kennett's History of England, viz.

the common law, and is nothing but civil law.

Vide Selden's Dissertation on Fleta. The queen continuing in the sanctuary with her son, the duke of York, the archbishop of cerning this matter, for there is no instapice

There is little to be found in Rymer conCanterbury was sent by the duke of Gloucester, where there is a father and grandfarbe alive and other fords, to the queen, to persuade her together, but one in the 8th vol. Rymer, p. 68. to deliver up the duke of York, or else they In H. 4th's time, grants were indeed made by were to take him away by force. Here the prince of Wales's secretary, the March in the custody of the prince of Wales.

the king for the maintenance of the eart of said Mr. Molineux, attending the judges, with Mr. Serjeant Reynolds the prince's counsel, But there is nothing here can establish a pre sent in to the judges, and brought an order rogative in the crown. I have only looked with them from the king in the following not trouble your lordships withhistory, as that

over the first ten volumes of Rymer, and shall words:

"The king having been informed that his of Ed. 5; in Kennett's history, where the royal bighness the prince of Wales desired queen said, that she had advised with learted to be heard by his counsel

, his majesty's plea counsel, and they told her that she had the sure is that any one single person that his right of wardship to the duke of York.

There is no instance or case wbatsoever is royal highness shall think fit to appoint may apply to the judges, and shall be admitted to

any law book or record, in the case of the Jay before them what he has to offer in behalf crown, or indeed any where else, that the of his royal highness, in relation to the ques-custody belongs to the grandfather, nor was tion before them.”

ever claimed or pretended to by the grandUpon this Mr. Molineux offered to come in,

father. but he was refused to be admitted, because he

As to marriage, every man may many his was not within the order of his

majesty ; but daughter where be pleases. The ancient feudal Mr. Serjeant Reynolds, afterwards “lord chief Britt. cap. 67, 68, p. 168, b. So is Co. Litt

law did extend pretty far as to marriages

. baron, was admitted as counsel for the prince 140, and never denied, but only in the case of Wales, according to the king's leave, and argued as follows:

of a widow holding of the crown, who canost

marry without leave of the crown. Mag. Reynolds, serjeant at law for the prince. Cba. cap. 7. % last. 18. 6 H. 6. Cotton's My lords, Í bave orders from the prince of Records. Wales to attend on a question relating to the Marriage always belongs to the father, and guardianship of his children.

the prince of Wales here would be entitled to Whereupon the lord chief justice Parker aid pur file marrier.' It is true the statute of informed him exactly what the true question 28 H. 8, cap. 18, makes it high treason to was, which was read to him verbatim, though marry any of the royal family; but then this he confessed he knew what the question was shews it was lawful before this act, because rebefore he came.

strained by act of parliament, and now that act And then the Serjeant went on thus. The is repealed. guardianship of the children of right belongs Rymer, vol. 4, 605, 608, which was in 8 to the father. 3 Co. 37, Ratcliff's case. Ed. 3, several procuratorial letters quantum 2 Roll's Abr. 40, 41, 42. The case of the in nobis' were granted to the archbishop of father and grandfather is distinctly considered, Canterbury to marry, and in page 620, are pit and the custody appears to belong to the curatorial letters, in the case of Edmund earl father, and not to the grandfather, and so is of Cornwall, • quautum in nobis' to be married. 30 Ed. 3, 17, a. and Vaughan 180. None Sandford 216. can have the custody of the son and heir ap- There is one instance indeed in Rymer of the parent but the father. Co. Litt. 84, a. lo the marriage of a daughter in the life-time of the case of younger children the argument is as father, who was the king's sister, which is in strong against the grandfather, and so is 4 and vol. 1, Rymer 407, and in 26 H. 3, 6 de ma5 Ph. & M. cap. 8. Now why is the power trimonio contrahendo, &c. promittimus et mo here supposed io be in the grandfather, when dis quibus poterimus laborabimus per nos et 12 Car: 2, is positive that the power is in the per amicos nostros.' But this shews it was father, and that the father can appoint a tutor not done by the prerogative alone, and indeed and guardian, and the prince of Wales is there

is nothing to support any notion of that withiu that act: 2 Roll's Abr. tit. Guardian, nature. As to the case in Rushworth, P: 82 p. 37. Though the prince is but a subject, 88, concerning the oath and marriage articles yet in dignity he is made

much greater, and there mentioned, they were allowed to become supposed in some cases to be almost equal with trary to the known laws of England, and the the king, as Seld. tit. Honour, 495. So that treaty therefore confirmed by parliament


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