mittee, upon preparing and settling the same, by reason of the act of parliament in the 7th of king William, for regulating Trials in cases of Treason; and the Standing Order of this House, of the 28th of May, 1624, touching judicature, and the allowance of counsel in cases of moment; he was directed, by the said Committee, to inform the House thereof, as a matter worthy of their lordships' particular consideration, "Then the preamble of the said Act, and the said Standing Order of this House, being read: "It was proposed, to agree to the said Resolution. And the same being objected to : "It was proposed, as an amendment, to leave out these words; viz. to be heard, touching any point or matter of law, if any such 'shall arise, upon the two Articles of Impeach'ment exhibited against the said Earl for High Treason, or either of them; but'] And, after debate; "The question was put, Whether those words shall stand part of the said Resolution? It was resolved in the affirmative. "Then the five following Resolutions were read, and severally agreed to. "And the next Resolution, for preventing the return of coaches through King-street, during the said Trial of the earl of Oxford, till five o'clock in the afternoon, being read: "It was agreed, to alter the time, by insert ing, instead thereof, seven o'clock in the evening. And then the last Resolution was also 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 Reports of lord Fortescue, who was a judge of the Common-Pleas at the time the opinion of all the judges was taken upon it. Fortesc. Rep. 401. The only addition we make to lord Fortescue's state of the arguments is to supply a considerable deficiency in the copy of the written opinion given by the two dissenting judges. What we have introduced for this purpose is the opinion of the two dissenting judges at length, instead of the imperfect copy of it in lord Fortescue. This part is taken from a book entitled the Life of Judge Price. In lord Fortescue's Report, the Case is called The grand Opinion for the prerogative concerning the royal family.' 6 "Since the Case we now present to the reader, one part of the subject of it has undergone a parliamentary discussion, the occasion of which was the act passed in 1772, for better regulating the marriages of the royal family. 12 G. 3, c. 11. The preamble to that act contains a declaration, that the kings of this realm have ever been intrusted with the care and approbation of such marriages.' The generality of this recital, together with the restraints introduced to guard the descendants of George the second from improper marriages, caused much debate in parliament; both on the ancient law and *See in vol. 12, p. 200, an account of the Trial of the Seven Bishops in a letter from Mr. Robert Price to the duke of Beaufort. It may be worth notice, that in the House of Lords, the learned and pious Lowth, then bishop of Oxford, who was much attached to the king, not only voted but spoke against this Bill, as repugnant to the precepts of morality the policy of the new regulation concerning this important subject. In the House of Lords two protests were signed against passing the act; and these will enable the reader to judge, what were the principal objections to it. See the History and State Papers in the Annual Register for 1772, pp. 232, et seq. and Almon's Parl. Deb, for the same year. Whilst the act was under consideration of the Lords, they consulted the judges on the extent of the prerogative of the crown in respect to marriages of the royal family; who concurred in opinion, that the approbation of the marriages of the king's grand-children belonged to his majesty, and also the approbation of the mar riage of the presumptive heir of the crown, in whatever degree related to the king; but confessed, that they could not precisely as and of religion. A very eminent member of that House, who at different periods of the present reign filled very high offices in the state, represented to me Lowth's speech as highly dignified, impressive and persuasive, and superior to that, which was upon the same occasion delivered by lord Chatham. This conscientious opposition lost not Lowth the royal favour, which he well deserved. In the year 1777, he was made bishop of Oxford; and in 1783 the archbishopric of Canterbury was offered to him. Some apparently groundless doubts have been stated concerning the operation of the Royal Marriage Act upon marriages celebrated in foreign countries, and also concerning marriages with Papists celebrated under the provisions of the second clause of the statute. These topics are treated of in the recently published first volume of Mr. Madock's Life of Lord Sommers. Mr. Christian, (animadverting in a note to Black. Comm. book 1, ch. 4, vol. 1, p. 225) upon the case in the text, says, "The au thorities 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." certain, to what other branches of the royal family this prerogative extended. Besides the instances of the crown's interposition noticed in the following case, our late most distinguished commentator on the law of England refers to many others, which he arranges according to the degrees of relationship. 1 Blackst. Comment. 8th edit. 225. See, also, the Case of the countess of Shrewsbury, ante, vol. 2, p. 769."] "Whoever consults the Case, referred to the Judges by George the 1st upon the question, whether the grandfather being king, or the father being only heir apparent, hath a right to take care of the education of the royal children, will find that the material precedents are too few in number to settle that very important point." Barrington, Obs. on 1 Ric. 2. Mr. Barrington was led to this observation by consideration of the uncertainty in our law, respecting the appointment of a protector, guardian or regent for the realm, and for a minor king or queen. Other incidents to the office of protector, guardian, or regent, seem to be equally unsettled by the common law, or by any fundamental statute. See Blackst. Comm. book 1, chap. 7, vol. 1, p. 248. Nor are these the only important points of constitutional law to which this observation is applicable. In the years, 1788, 1789, great difference of opinion prevailed among the most eminent lawyers, as well as statesmen, as to the mode of sup. plying the executive power in cases of delirium, or other such incapacity of the king. (It is to be hoped, that Mr. Hargrave will incorporate into his Jurisconsult Exercitations,' now in course of publication,) the valuable tract, which he published, under the title of Brief Deductions,' &c. as to this question.) In like manner, I apprehend it is still left unsettled, how the kingly office should be executed, or the executive power supplied, upon the death of a king leaving kindred, whose right of succession might be defeated by birth of a child, who at the time of such death was in • ventre sa mere.'* Mr. Burke, in his Reflections on the French Revolution, has with admirable eloquence exposed the folly of previously subjecting every political contingency to the generalities of abstract speculation. On the other hand, the inconvenience of leaving great questions to be determined in the moment of emergency is obvious. * In the debate in the House of Commons, upon the Address in answer to the king's Message (Nov. 11th, 1680) Mr. Trenchard says, "If a king die, leaving a queen, the next heir is presently proclaimed, to prevent an interregnum; though there be a possibility of the queen's being with child, to whom the right hould in the first place belong." With respect to the commissions of the judges, and other particulars respecting their de pendence upon the crown, during a considerable portion of the seventeenth century, see at vol. 12, p. 257, some interesting information, collected by the very learned vindicator of Mr. Fox's History. As to the succession of some of the Judges, during the last years of Charles the 20's reign, Mr. East has inserted the following particulars in a Note to p. 105, of the 14th volume of his Reports : "Sir Francis Pemberton was Chief Justice of the Common Pleas at the time of Lord Russel's trial at the Old Bailey, on the 13th of July, 1683, and was succeeded by sir Thomas Jones in the September following. A memorandum, in p. 10, (of the second series of paging) of the Great Quo Warranto case against the city of London, says that when the demurrer was joined, viz. Mich. Term, 34 Car. 2, (A. D. 1682,) Mr. Serj. Pemberton was Chief Justice of the King's-bench, but before Hilary Term, that it came to be argued, he was removed and made Chief Justice of the Common Pleas, and sir Edmund Saunders was made Chief Justice of the King's-bench. And it ap pears from p. 119, (the last series of paging) of the same book, that judgment was given in Trinity Term, 35 Car. 2, and that the Lord Chief Justice Saunders died either the day on which judgment was given, or the next day. Amongst the rolls in the Crown-office of the King's-bench, I found writs tested Edmund Saunders in Hilary Term, 34 and 35 Car. 2. Amongst others there is one so tested on the 29th of January, 34 Car. 2, and another on the 12th of Feb. 35 Car. 2, the commencement of the reign being on the 30th of January. The writs continue tested by Saunders into Trinity Term, 35 Car. 2; one so tested was of the 8th of June, 35 Car. 2. But on the 27th of June, 35 Car. 2, they are tested Thomas Jones, who was then the senior puisue judge of the court, in whose name writs are tested on the vacancy of the chief justiceship. From the number of writs tested on the 27th of June, it seems as if it was the last day of Trinity Term in that year. The first writ I found upon the roll tested George Jefferies, as chief justice, was of the date of the 23rd of October, 35 Car. 2. [N. B. Michaelmas Term has since been contracted by st. 24 G. 2, c. 48.] The next is of the 3rd of November, though Rapin (vol. 2, p. 733,) says, that sir George Jefferies was appointed chief justice of the King's-bench, in December, 1683. The Chronica Judicialia state, that sir Francis Pemberton was appointed chief justice of the Common Pleas, on the 22nd of January, 1682; which as the civil year then began in March, answers to the day before Hilary Term, 34 and 35 Car. 2; and in Trinity Term following, (i. e. Tr. 35 Car. 2,) which was just before the trial of lord Russell, it appears by the book of fines in the Common Pleas, that sir Francis Pemberton, as chief justice, took acknowledgments of fines in that term. The Chronica Judicialia men. tion the appointment of sir Thomas Jones, as lord chief justice of that court, on the 29th of September, 1683. See, too, in pp. 264, 265, of vol. 12, the Resolutions of the Commons in 1680. Bishop Burnet, in relating the history of the year 1692, tells us, that "Among the bills that were offered to the king, at the end of the session, one was to secure the judges' salaries; and to put it out of the king's power to stop them. The judges had their commission during their good behaviour; yet their salaries were not so secured to them, but that these were at the king's pleaBut the king put a stop to this, and refused to pass the Bill: for it was represented to him, by some of the judges themselves, that it was not fit they should be out of all dependence on the court; though it did not appear, that there was any hurt in making judges, in all respects, free and independent." sure. contemplation of his power to displace them upon his accession, or to conciliate his favour by indications of a disposition readily to yield to the will and pleasure of the prince, for the time being, on the throne.* To remedy this inconvenience, his present majesty, king George the 3rd, in the commencement of his reign, (graciously declaring, "That he looked upon the independence and uprightness of the judges, as essential to the impartial administration of justice; as one of the best securities of the rights and liberties of his subjects; and as most conducive to the honour of the crown;") was pleased to recommend, that the judges should be conti nued in their offices during their good behaviour, notwithstanding any demise of the grown; which was accordingly enacted by stat. 1 George 3, c. 23.] Hilary term in the fourth year of his late maTHE judges met on the 22nd of January in jesty king George, and in the year of our Lord 1718, at the right honourable the lord Parker's chambers in Serjeant's-Inn in Fleet-street, he being then lord chief justice of England, (afterwards lord chancellor of Great Britain) in pursuance of the then lord chancellor Cowper's letter from the king. The judges being met, the chancellor's letter was read, which was to signify the king's pleasure, that all his judges should meet, with all convenient speed, and give him their opi nion upon the following question,† viz. "Whether the education, and the care of the persons of his majesty's grand-children, now in England, and of prince Frederick, Wales, when his majesty shall think fit to eldest son of his royal highness the prince of cause him to come into England, and the or their governors, governesses and other instrucdering the place of their abode, and appointing tors, attendants and servants, and the care and By stat. 13 W. 3, c. 2, it is enacted, That the commissions of the judges shall be made, '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 apprehension than they are at this hour.” that they may be removed from their offices by the arbitrary authority of the prince upon the throne, (as to which see Mr. Serjeant Heywood's Vindication as already cited. See, too, in particular, Whitelocke's anecdote relative to the conduct of judge Croke in the Ship-money Case.) Still, however, it was held, that their commissions became vacant upon the demise of the crown, until by 1 Ann. stat. 1, c. 8, they were continued for six months after such event: so that upon a prospect of the approaching termination of a reign, the judges were liable to be seduced into disingenuous compliances with the wishes of the apparent successor, by the Of the popularity to be sought by a judge, lord Mansfield said something in his speech (see it in this Collection,) June 8, 1768, in Wilkes's Case; and what lord Mansfield then said, Mr. Horne Tooke afterwards made the subject of some contemptuous animadversion. See, in this Collection, his speech on Nov. 24, 1777, when he came to receive the judgment of the court of King's-bench, upon his convic tion for publishing a libel against the king's troops. + As to the king's right extrajudicially to demand the opinions of the judges on ques tions in which the crown is interested, See Mr. Hargrave's note (5) to Co. Lit. 110, a. ༣ approbation of their marriages, when grown up, do belong of right to his majesty, as king of this realm, or not." Soon after the judges were met, they had a message sent them, from his royal highness George, then prince of Wales, now king of Great Britain, by his secretary Mr. Molineux, now deceased, and by his own solicitor-general, Mr. Carter, since sir Lawrence Carter, a baron of the Exchequer, to this effect: that his royal highness the prince of Wales, understanding that a question relating to his right of guardianship to his children was before them, desired, that before any determination was had upon it, they would give leave that he might be heard by his counsel concerning the same, and then the messengers withdrew. After which the judges having consulted together about this Message, agreed on this answer, viz. "We have considered of what you have been pleased to propose from his royal highness the prince of Wales, and we are all of opinion, that in cases wherein our advice is required by his majesty, we cannot hear counsel without his majesty's leave." The same messengers being called in again, the said answer was given to them by the lord chief justice Parker in the name of all the judges. Thereupon the judges agreed to acquaint the lord chancellor with this message, and with the answer, in order to acquaint the king. Immediately after this, without loss of time, the judges entered on the consideration of the question referred to them. Just. Blencow. I do not see, my lords, but marriage takes in the whole question, but let us debate the whole matter minutely, and give our opinions seriatim. Just. Dormer. For the king. What is very material to this purpose, is, the Marriage Articles of Car. 1, then prince of Wales, with the infanta of Spain, in the life-time of his father, king James 1, under the great seal. One of those Articles relates to the education of the issue of that marriage, which was, that the sons and daughters, born of that marriage, should be under the care, and brought up by the infanta of Spain until the age of ten years. Thereupon the prince himself says, if they thought that term was not enough, that he would intercede with bis father, the king, that the ten years of education with the infanta might be lengthened to twelve years: and says further, and I promise, and freely, and of mine own accord swear, if it happen that the intire power of disposing this matter be devolved to me, I will approve of the said term of twelve years. And these Articles were sworn to by both king and prince. 1 Rushworth 86, 87. 6 Chief Justice King, afterwards lord chancellor, quoted Rymer, 4 tom. fol. 605, 608. 8 Edw. 3, and fol. 620 and 624. Lord Parker, Chief Justice. The case of H. 3, is very material. The king's sister Joan VOL. XV. was abroad, and with her own mother in France, and yet the king here in England made the match with Alexander king of Scotland. The king says, "dabimus in uxorem, et nos et concilium nostrum fideliter laborabimus ad eam habendam." Rymer, 1 tom. p. 240, 356. 4 H. 3, anno 1220. "Et si forte eam habere non poterimus, dabimus ei in uxorem Isabellam junior' sororem nostram." And many other strong expressions there are, as "maritabimus et concessimus in uxorem; laborabimus per nos et amicos nostros." Rymer, vol. 1, 241, 407. Madox Tit. Aid 412. H. 3 had aid to marry his sister. 12 Co. Rep. 29, 30. The king of Sweden was proposed to the lady Elizabeth, (afterwards queen Elizabeth) for marriage; but she refused, because it was not first communicated to her majesty the queen. Cotton's Record, 326. There is also the famous case of the countess of Shrewsbury, and she was sent to the Tower, and imprisoned there for a high misdemeanor and great contempt, in being privy to the flight of lady Arabella, who being of the blood royal, had married one Mr. Seymour without the consent of the king, and he was likewise imprisoned in the Tower for that marriage.* Co. Rep. 12, p. 94. In the case of the duke of York, being to be married to the duchess of Modena, there was an Address of the House of Commons to the king, that he might not be married to that princess. The king's Answer (which was remarkable) was, that the marriage was completed, and by his royal authority and consent. See lord Clarendon's History. About December, 1699, an Address was moved for by the House of Commons to the king, to remove the then bishop of Salisbury from being preceptor to the duke of Glouces ter, and it passed in the negative, which shews. the parliament thought the power to be in the crown. Another instance is, the case of the earl of Marlborough. The king appointed him governor of the duke of Gloucester, as a mark of his qualifications for an employment of so great a trust, and as an instance of this prerogative. So in the case of the marriage of the princess of Orange, it was made wholly by the king, against the father's consent. In Rymer, tom. 8, 698, there is a power given by the king to certain lords to treat of a marriage of the king's son, the prince of * See vol. 2, p. 1. Much very curious information and learning connected with this marriage is to be found in Mr. Hargrave's Preface to lord Hale's Treatise on the Jurisdiction of the Lords' House, and in Mr. Luders's Tract on the right of succession to the crown in the reign of queen Elizabeth: and there are some interesting Articles relative to it among the Harl, and Cotton MSS. in the British Museum. 4 Н Wales, with one of the daughters of John duke of Burgundy, and earl of Flanders. Friday, Jan. 24, 1717. The Judges met again at the same place, and thereupon the passage in Edw. 5, was read out of Kennett's History of England, viz. The queen continuing in the sanctuary with her son, the duke of York, the archbishop of Canterbury was sent by the duke of Gloucester, and other lords, to the queen, to persuade her to deliver up the duke of York, or else they were to take him away by force. Here the prince of Wales's secretary, the said Mr. Molineux, attending the judges, with Mr. Serjeant Reynolds the prince's counsel, sent in to the judges, and brought an order with them from the king in the following words: "The king having been informed that his royal highness the prince of Wales desired to be heard by his counsel, his majesty's plea sure is, that any one single person that his royal highness shall think fit to appoint may apply to the judges, and shall be admitted to lay before them what he has to offer in behalf of his royal highness, in relation to the question before them." Upon this Mr. Molineux offered to come in, but he was refused to be admitted, because he was not within the order of his majesty; but Mr. Serjeant Reynolds, afterwards lord chief baron, was admitted as counsel for the prince of Wales, according to the king's leave, and argued as follows: Reynolds, serjeant at law for the prince. My lords, I have orders from the prince of Wales to attend on a question relating to the guardianship of his children. Whereupon the lord chief justice Parker informed him exactly what the true question was, which was read to him verbatim, though he confessed he knew what the question was before he came. And then the Serjeant went on thus. The guardianship of the children of right belongs to the father. 3 Co. 37, Ratcliff's case. 2 Roll's Abr. 40, 41, 42. The case of the father and grandfather is distinctly considered, and the custody appears to belong to the father, and not to the grandfather, and so is 30 Ed. 3, 17, a. and Vaughan 180. None can have the custody of the son and heir apparent but the father. Co. Litt. 84, a. In the case of younger children the argument is as strong against the grandfather, and so is 4 and 5 Ph. & M. cap. 8. Now why is the power here supposed to be in the grandfather, when 12 Car. 2, is positive that the power is in the father, and that the father can appoint a tutor and guardian, and the prince of Wales is within that act? 2 Roll's Abr. tit. Guardian, p. 37. Though the prince is but a subject, yet in dignity he is made much greater, and supposed in some cases to be almost equal with the king, as Seld. tit. Hongur, 495. So that the reason should be stronger for the prince to have greater power than ordinary persons have. Now as to Bracton, who treats of this subject, that is transcribed from Justinian. Therefore that book and the instance there ought not to be regarded, for he deviates from Vide Selden's Dissertation on Fleta. the common law, and is nothing but civil law. cerning this matter, for there is no instance There is little to be found in Rymer contogether, but one in the 8th vol. Rymer, p.608. where there is a father and grandfather alive In H. 4th's time, grants were indeed made by the king for the maintenance of the earl of March in the custody of the prince of Wales. But there is nothing here can establish a prerogative in the crown. I have only looked not trouble your lordships with history, as that over the first ten volumes of Rymer, and shall of Ed. 5, in Kennett's history, where the queen said, that she had advised with learned Counsel, and they told her that she had the right of wardship to the duke of York. There is no instance or case whatsoever in any law book or record, in the case of the crown, or indeed any where else, that the custody belongs to the grandfather, nor was ever claimed or pretended to by the grandfather. his As to marriage, every man may marry daughter where he pleases. The ancient feudal law did extend pretty far as to marriages. Britt. cap. 67, 68, p. 168, b. So is Co. Litt. 140, and never denied, but only in the case of a widow holding of the crown, who cannot marry without leave of the crown. Mag. Cha. cap. 7. 2 Inst. 18. 6 H. 6. Cotton's Records. Marriage always belongs to the father, and the prince of Wales here would be entitled to aidpur file marrier.' It is true the statute of 28 H. 8, cap. 18, makes it high treason to marry any of the royal family; but then this shews it was lawful before this act, because re strained by act of parliament, and now that act is repealed. Rymer, vol. 4, 605, 608, which was in 8 Ed. 3, several procuratorial letters quantum in nobis' were granted to the archbishop of Canterbury to marry, and in page 620, are precuratorial letters, in the case of Edmund earl of Cornwall, quantum in nobis' to be married. Sandford 216. There is one instance indeed in Rymer of the marriage of a daughter in the life-time of the father, who was the king's sister, which is in vol. 1, Rymer 407, and in 26 H. 3, de ma trimonio contrahendo, &c. promittimus et mo dis quibus poterimus laborabimus per nos et per amicos nostros.' But this shews it was not done by the prerogative alone, and indeed there is nothing to support any notion of that nature. As to the case in Rushworth, p. 87, 88, concerning the oath and marriage articles there mentioned, they were allowed to be con trary to the known laws of England, and the treaty therefore confirmed by parliament. |
