« ForrigeFortsæt »
• pointing their governors, governesses, and ther, without exception. [Littleton, § 114. 33
other instructors, attendants, and servants, H.6; 55 Co. Litt. 84,84, 0.3 Co. 38; Vaugh. • and the care and approbation of their mar- 180; Litt. §. 123.] ? riages, wbeu grown up, belong of right to Upon the best search we have been able to · your majesty, as king of this realm, or not.' make, we can find but two books written by
And we are humbly of opioion, that the English lawyers, that can possibly induce a education and care of the persons of your contrary opinion (Bracton and Fleta.) Bracton • majesty's grand children, the ordering the treating de patria potestate says, ' Qui ex filio
place of their abode, and appointing their go- tuo et ejus uxore nascitur, i. e. nepos tuus et vernors, governesses, and other instructors, neptis, æque in tua potestate sunt, et pronepos « attendants, and servants, belong to the prince et proneptis, et deinceps cæteri ;' and, in po• tbeir father.' But, that the care and ap- testate patrum sunt filii qui nascuntur in justo • probation of their marriages, when grown up, : et legitimo matrimonio, idem in nepotibus et • belong to your majesty, as king of this realm. pronepotibus, quantum ad avos et proavos pa
This, Sir, is our humble opinion. But when terpos ;' which Fleta has also said in almost we acquaint your majesty that the care and the same words, and which both have taken from approbation of the marriages of your grand- Justinian's Institutes. [Bracton, l. 1, c. 9. Ibid. children belong to your majesty, as king of §. 4. Fleta, l. 1, c. 6. Justin. I. 1, tit
. 9, §. 3.] this realm, we desire to be understood, as speak. This shews it to bave been a part of the Roman ing of a care and approbation not exclusive of law; but it neither is, por, as we conceive, the prince their father. But as your majesty's ever was, a part of the law of England. It is care will be always employed for the good of well known that Bracton and Fleta wrote their the royal family, and the welfare of your several treatises upon the plan of the imperial people; so it is a duty incumbent upon every laws; and it is as well known, that those laws member of the royal family to apply to your never obtained, bere, through the general avermajesty, and receive your royal approbation sion this nation (always zealous of its liberties) upon every occasion of this kind; for we find bad towards them; and accordingly, wherever that all negociations of marriages in the royal these writers differ from our year-books, and family have been carried on by the intervention authentic reports, they are not allowed to be of of the crown, and such marriages as bave been authority. And as to this part of the Roman contracted without the royal consent and ap- law in particular, which relates to the patria poprobation, bave been thought contempts of the testas, it is acknowledged by all, even by Jusregal authority: but we find no instance where tịnian bimself, that it was so peculiar to the Roa marriage has been treated by the crown, for mans, that it never obtained among any other any person of the royal family, without the people whatsoever. • Jus autem potestatis, quod consent of the father, and we beg leave to as- in liberos habemus, proprium est civium Romasure your majesty, that there is no one ex. norum ; nulli enim sunt homines, qui talem in pression in any of our law-books that warrants liberos habeant potestatem, qualem nos habeany such assertion.
mus.' [Justin. I. 1, tit. 9, §. 2.] As to the other part of the question, in an- But to give a more particular answer to these swer to which we cannot concur with the other passages, wbich are the only ones that have judges; it is our duty humbly to lay before ihe least appearance of law, it is evident they your majesty, that in our opinion the father cannot be made to affect the case of the royal hath in all cases a right to the custody and family, by any other construction than what education of his children, and this we take to will equally affect every other family in Engbe clear from the general rule of law.
land. “But that from these passages nothing This right of the father is said in our books, can be concluded, to determine the extent of to be founded jure nature, and to be annexed the patria potestus in any family bere, is clear by nature to tbe person of the father. (7 Co. 13.) from the reason, on which the power of the In case of younger children, it never was dis- grandfather among the Romans is founded. puted; and in regard to the eldest son, or Now the reason of the Roman law, why daughter and heir, to whom lands descended children should not be in the power of the fafrom a collateral ancestor, the right of the fa- ther, but of the grandfather exclusive of the ther obtained even against the lord, [30 E. 3, father, was, because the father himself was not 17.] though his seigneural right to the ward- sui juris, and in his power, but in patris famiship of bis tenant during the minority prevailed lias sui manet potestate, mapcipioq;' which are against the grandfather, and all other ancestors the words of the Laws of the XII Tables; and lineal and collateral. Littleton, Coke, and it was manifesily absurd, that he should have Vaughan, all agree that none can have the others in his power, who was not in his own. custody of a man's son and heir apparent from i This servile condition of the son to the father, the father; and in the common case of a which had ordinarily no end, till the father tenure in socage, even the mother has the right himself was pleased by emancipation to put an of guardianship, after the death of the father, end to it, being the sole foundation of the grand-' preferable to the grandfather. From bence we father's right to the grandchildren, as well as take it to be the general rule of law, that the to every thing else the father was possessed of'; guardianship of the children is a right common when this state of the father ceased, the power to every subject of this kingdom, who is a fa- of the grandfather necessarily ceased with it:
and so it is declared in Justinian's Institutes, / appointed his governor, of wbich we have this that if the son was emancipated, and set free relation in Hollingsbead: (3 Hol. 414,] that from the power of bis father, the children be- sir Simon Burlie, kinsman to Dr. Burlie, one gotten' after such emancipation are not in the of the instructors of Edward the Black Prince, power of the grand father, but of the father. having been admitted among other young gen
• Quod si post emancipationem conceptus tlemen to be school-fellow with the prince, be fuerit, patris sui emancipati potestati subjicitur grew in such credit and favour with him, that [Justin. I. 1, tit. 12, §. 9.]
afterwards, when his son Richard of Bourdeaux But not to insist that by the laws of England was born, the prince, for special trust and conno father has such a power over bis children, fidence which he had in the said Simon Barlie, even in their minority, as the Roman law gave; committed the governance and education of his it is undeniable, that with us marriage hath the son Richard to him; and after tbe death of the nature of a true and proper emancipation of the Black Prince, it appears by two very remart. person of the son; and by conseqnence, even able instances in our history, that Richard coe upon the grounds of the Roman law, the grand-tinued with his mother till the death of his father with us can bave no right to the chil. grandfather kiog Edward the 3rd. [2 Brady, dren of the son, but the father only. If there- 307. 1 Kennet, 33. Stow, 274. S Tyrrel, fore nothing otherwise appears to distinguish 771. Walsinghatn, 192.] the case of the royal family, there can be no The younger children of Edward 4 fired foundation upon which any prerogative can be with their mother, whose wardship she deelared established in the instance now in question ; she claimed by the advice of learned counsel, and we humbly apprehend that the only prece according to the relation given us by sir Thodents which can be alleged to support such a mas More, afterwards lord chancellor of Eng. prerogative, when considered, will not be found land, in his History of those Times; nor w23 sufficient.
it then pretended, that the king had any right The first, in the 22 H. 3, entitled in 1 Rymer, to their education, or the care of their persons; [378.] ' De Alianora filia Galfridi,? &c. is only and although the queen was prevailed apon to a declaration under the great seal, that William part with her son Richard duke of York, ber Talbot had surrendered to king Henry 3, the daughters remained in her custody till she bercastle of Gloucester, - Et Alianorum consan- self was contented to send them to court. guineam suam sanamet incolumem.' What [Stow, 415. 1 Kennet, 490.] can be inferred from bence is hard to determine, As to the education of their late majesties any farther than that this Alianor was in ward queen Mary and queen Apne during their mito the crown, and bad been committed to the norities, it does not appear to us, that their care of Talbot, who had surrendered ber and uncle king Charles the second appointed her estate safe again to the king.
their governesses and servants, or any one The other precedent, which is in 1 H. 4, is person that attended them; and we are vof a grant of an annual sum of 500 marks to the enougb acquainted with the circumstances prince of Wales for the expence of the main- of the duke of Gloucester's case to make tenance of Edmund earl of March, and his bro- the proper remarks, but it seems to bave been ther, so long as they should remain in the by agreement with the king: and we bumbly prince's custody, to whom they had been com- conceive, that the motion in parliament, Demitted the February before. [8 Rymer 608.] cember 13, 1699, for an address to the king to As to this it appears by the history and records remove the then bishop of Salisbury, [Burnet) of those times, [Sandford's Gen. Hist. 226, from being his preceptor, can be of no weight 237,] that Roger de Mortimer their father was in this matter, since it passed in the negative. killed in Ireland 22 R. 2, and that their mother It is possible that something may be inferred soon after married sir Edward Charlton lord in favour of this prerogative, from that article Powis, and died 7 Hen. 4, so that the eldest son of the treaty, [1 Rushw. 86,] said to be made was then in ward to the crown, by reason of his by king James the first coöcerning the match lands held of the crown, as were his lordships with Spain, which related to the nurture and of Wigmore and Clare, inter alia; and his education of the children of that marriage. It brother Roger was then an infant of very tender is not to the présent question to consider, whe age, and under the care of the king, as next rela- ther there ever was such a treaty as is related tion: and it appears that he died very young; by Rushworth or not. It is certain, that it is in which latter case, we humbly conceive, that not to be found upon record, the proper evithe care which the king was pleased to take of dence of all public treaties. The articles of the an infant and orphan so nearly related to him, treaty are said in Rushworth (1 Rushw. 85,] to will not be a precedent to establish a power in be stiled by the cardinals, Propositioos for the the crown to dispose of the custody of a child right augmentation and weal of the Roman Cawhile the father is living.
tholic religion. And, in truth, almost every If any stress can be laid upon printed his article is so derogatory to the supremacy of the lory, the case of Richard, son to Edward the crown, and the statutės made for the establishBlack Prince, will be an instance against this ment and security of the Church of England, power supposed to be lodged by law in the that it could have carried no sort of authority grandfather. He being a minor, lived with with it in point of law, even though it bad apo his father as part of his family, and his father peared in a regular manner, under the great seal, and not from the reports of historians only. desire to lay before the judges something reNor can the oath said to be taken by prince lating to the question aforesaid, had further Charles, while in Spain, to intercede with his signified his royal pleasure to bis judges, that father, that the ten years of the education of any one single person, that should apply to the the children wbich should be born of this mar- said judges for that purpose, should be admitted riage with the infanta, accorded in one of the to lay before them what such person should articles of this treaty, might be lengthened to have to offer from his royal highness. And the term of twelve years, as the prince desired, that the judges had returned their answer to the be looked upon as a precedent to determine said question; which answer bis majesty was what the law of England is. The right to the pleased to order to be read this day in council; care and education of the children of that mar- and the same was read, whereby it appeared riage, had it taken effect, was not then in dis- that the said judges had taken the said question pute : and had it been so, nothing can be con- | into consideration, and bad heard a learned cluded from the voluntary engagement of the serjeant at law, who by command of bis royal prince, in favour of a marriage so much desired highness bad laid before them several things by himself, as well as by his father, wherein relating to the question aforesaid ; and that ten the question of this right was never the subject of the judges, that is to say, Thomas lord of debate.
Parker, now lord high chancellor of Great BriThere was indeed an article in the treaty tain, then lord chief justice of the court of with France, [ 17 Rymer, 676, ) upon the mar- King's-bench; sir John Pratt, knight, now riage of king Charles the first with princess lord chief justice of the said court of King'sHenrietta Maria, whereby it was agreed that bench, then one of the justices of the said the children of that marriage should be brought court; sir Peter King, knight, lord chief jusup with their mother till their age of 13 ; but tice of the court of Common Pleas; sir Thoit is evident, that treaty was made with king mas Bury, knight, lord chief baron of the court Charles the first, after his accession to the of Exchequer; sir Littleton Powys, knight, crown, and not with king James his father. one other of the justices of the court of King's King James, it is true, sent over the earls of bench; sir John Blencowe, knight, Robert Carlisle and Holland to treat of that match ; Tracey and Robert Dormer, esquires, justices but the treaty was not concluded till after his of the said court of Common Pleas; sir James death, and then by powers from king Charles Mountague, knight, one of the barons of the the first, whose stipulations for the education court of Exchequer; and sir John Fortescue of his own children could need no assistance Aland, knight, now one of the justices of the from his prerogative. (17 Rymer, 679.] court of King's-bench, and then one of the
Thus have we humbly laid before your ma- barons of the court of Exchequer, were of opijesty, what we have to offer in relation to the nion: books and precedents that have fallen under "That the education and care of the persons qur consideration upon this head, which we of his majesty's grandchildren now in Engcannot think sufficient to infer a prerogative in • Jand, and of prince Frederic, eldest son of his your majesty, as king of this realm, in the royal highness the prince of Wales, when bis care and education of your majesty's grand- majesty shall think fit to cause him to come children, during the life, and without the con-' to England, and the ordering the place of sent of their father; a prerogative, as we hum. their abode, and appointing their governors bly apprehend, hitherto unknown to the laws of
and governesses, and other instructors, atten England.
• dants and servants, and the care and approbaAll which is most humbly submitted to your tion of their marriages when grown up, bemajesty's great wisdom. Ro. Price, " long of right to bis majesty, as king of this
R. EYRE. • realm.
And that Robert Price, esquire, one of the These Opinions of the Judges his majesty barons of the court of Exchequer, and sir Rowas pleased some time after to communicate to bert Eyre, knight, then one of the justices of his privy council in manner following:
the aforesaid court of King's-bench, and chanAt the Court at Kensington, the 1st of July, cellor of his royal highness the prince of Wales; 1718. Present, the King's most Excel
• That the education and care of the persons lent Majesty in Council.
of his majesty's grandchildren, the ordering His majesty was this day pleased to commu- “the place of their abode, and appointing their nicate to ibe lords of his most honourable privy governors and governesses, and other instruccouncil, that his royal pleasure had some time tors, attendants and servants, belong to the since been signified to his judges, by the late prince their father; but that the care and apford chancellor Cowper, that they should give probation of their marriages, when grown up, their opinion opon the question just before belong to his majesty, as king of this realm.
-Adding, “That in what concerned the mar. And that bis majesty, having afterwards riage, they desired to be understood as speakbeen informed that some of the counsel of his ing of a care and approbation not exclusive of royal bighness the prince of Wales expressed a the prince their father.'
457. The Trials of Major Steve Bonnet, and Thirty-three others,
at the Court of Vice-Admiralty, at Charles-Town, in South-
Simmons, George Peterson, Solomon Legare,
Abraham Lesuir, and John Caywood. The Court met according to appointment.
Then tbe Judge of the Vice-Admiralty proPresent—Nicholas Trott, esq. Judge of the ceeded to give bis Charge to the Grand Jurye
Vice-Admiralty, and Chief-Justice of the as followeth : said Province of South-Carolina.
Gentlemen ; We are here assembled to beld Assistant JUDGES ---George Logan, esq. Alex- this Court of Admiralty-Sessions ; and the duty ander Parris, esq. Philip
Dawes, esq. Geo. of my office requires me to give in charge is Chicken, esq. Benjamin de la Conseillere, you the things ihat you are to enguire of and esq. Samuel Dean, esq. Edward Brails
In a former Admiralty-Charge, by way of ford, gent. John Croft, gent. Capt. Arthur Loan, Capt. John Watkinson.
preface or introduction to the particular crime
of piracy, which will again now be brought The King's Commission to Nicholas Trott, before you; esq. Judge of the Court of Vice-Admiralty, and I then shewed you, first, That the sea was the Commission in the name of the lord Pala- given by God for the use of men, and is subject tine, and the rest of the lords proprietors, and to dominion and property, as well as the land. testified by the Hon. Robert Johnson, esq. go- And then I particularly remarked to you, the vernor, and the rest of the lords deputies, for sovereignty of the kings of England over the holdiog the Court of Admiralty Sessions, was British seas. openly read.
I then proceeded, secondly, to shew you, Then the grand.jury was called, and twenty; be managed without laws ; so there have been
That as commerce and navigation could not three of them were sworn ; the names of which always particular laws for the better ordering are as followeth :
and regulating marine affairs; with an histoMichael Brewton, foreman ; Robert Tradd, rical account of those laws, and their origia. Andrew Allen, Peter Manigault, John Beau- Of all those matters I then spake largely and champ, John Bullock, Thomas Barton, An- fully; and shall not now trouble you with any thony Matthews, Alexander Kinlock, Henry farther repetition of them. Perrineau, Paul Douxsaint, John Breton, John But I shall now proceed, in the third place, Bee, Daniel Gale, Thomas Loyde, Laurence to shew you, That there have been particular Dennis, Elias Foisin, John Shepherd, John courts and judges appointed, ta whose juris
diction maritime causes do belong; and that in * For Piracy, see in this Collection the matters both civil and criminal. Trials of Golding and others, vol. 12, p. 1269 ; And then I shall in particular shew you the of Green and others, vol. 14, p. 1199. Leach's constitution and jurisdiction of this Court of Hawkins's Pl. Cr. book 1, c. 37.
Admiralty Sessions. When states,” says Mr. East, (Pleas of And shall mention the crimes cognizable the Crown, chap. 17, § 4), " are in open hosti- therein ; and shall particularly enlarge upon Jities, the plundering of an enemy is not piracy, the crime of piracy, that will now be brought but lawful capture. And before the stat. 11 & before you. 12 Wm. 3, c. 7, which was levelled against Time will not permit me to speak of the secommissions granted by James 2, after his ab- veral sorts of magistrates, to whose jurisdiction dication, none were deemed pirates who acted maritime affairs do belong, in the transmarine under the commission of any foreign power. or foreign parts of the world: therefore I shall But that statute enacts, that if any of his contine myself under tbis head, only to speak majesty's natural-born subjects or denizens of of the laws of England; by which the general this kingdom, shall commit any piracy or rob- jurisdiction in marine affairs is by the king as bery, or any act of hostility against others his supreme, as well by sea as land, committed to majesty's subjects, upon the sea, under colour the Lord High Admiral; who, besides his of any commission from any foreign prince or power over the navy, and the government orer state, or pretence of autbority from any person ibe seamen, hath a jurisdiction (a) civil and whatsoever ; every such offender shall be deem- criminal in marine affairs, which are decided ed, adjudged, and taken to be a pirate, felon, by his maritime judges in the Court of Admiand robber, and being duly convicted thereof, ralty, the chief of which is known by the stile according to this Act, or that of Hen. 8, shall of " Supremæ Curice Admiralitatis Angliæ Josuffer death, and loss of lands, goods, and chat- dex:" within whose cognizance, in right of the tels, as pirates, &c. upon the seas, ought to suffer."
ru) See Godolph. Admir. Juris. c. 4, p. 41.
jurisdiction of the Admiralty by the sea laws, done in great ships, being and hovering in the and the laws and customs of the Admiralty of main stream of great rivers, only beneath the England, are comprized all matters properly bridge of the same rivers nigh the sea. maritime, and pertaining to navigation. And by the preamble to the statute of the
As to the antiquity of the office of Lord Ad- 28 H. 8, it is declared, (i) that traitors, pimiral, and the Court of the (b) Admiralty, it rates, thieves, robbers, murderers, and conteis sufficient to remark, that the thing itselt that derates upon the sea, were tried before the Adsignified that office, now known to us by the miral, or his Lieutenant or Commissary, after stile of Lord High Admiral, and the jurisdiction the course of the civil law. thereof, baih been in the kingdom of England But as appears further by the said preamble time out'ot' mind.
that it was found inconvenient to try those of The learned antiquary sir Henry Spelman, tenders before the admiral ; in his (c) Glossarium, and out of him (d) Dr. Therefore by the said statute this Court of Godolphin gives us the Catalogues of the Ad. Admiralty Sessions was appointed, whereby mirals from the reign of king Henry 3. Not such offenders were to be tried according to the but that the office of Admiral is far more an- course of the common law, as if their offences cient: for the same learned antiquary saith, were committed on land. that be bath not in that Catalogue inserted And now I shall proceed to speak of the Marthusius, that Princeps Nautarum, in king crimes cognizable in this Court. And particuEdgar's time; vor those Tetrarchs of his navy; larly I shall enlarge upon the crime of piracy nor of those other commanders in chief in sea that will come before you. affairs, constituted by his successors kings of The crimes cognizable in this Court, and Eugland; but of such only as in the ordinary within the jurisdiction of the same, by the exway have been dignified with the said office. press words of the statute (k) are all treasons,
The lord (e) Coke, in the first part of his felonies, robberies, murders, and confederacies, Institutes, in bonour of the Admiralty of Eng. committed in or upon the sea, or in any other land, saith, “ That the jurisdiction of the Lord haven, river, creek, or place where the admiAdmiral is very ancient, and long before the ral or admirals have or pretend to have power, reign of Edward 3, as some have supposed, as authority, or jurisdiction. may appear by the laws of Oleron, (so called, There being only one of those crimes, viz. for that they were made by king Richard 1, robbery or piracy, ihat will come before you, I when be was there) that there bad been an Ad- shall omit the rest, and only speak to that: miral time out of mind, and by many other wherein I shall sbew you the nature of the ofancient records in the reigns of Henry 3, Ed- fence, and the heinousness thereof. ward 1, and Edward 2, is most manifest.”
Now, as ibis is an offence that is destructive But the learned Selden (f) in bis notes upon of all trade and commerce between nation and Fortescue, tells us, That in an ancient manu. nation ; so it is the interest of all sovereign script “ De l'Office de l'Admiralty,” translated princes to punish and suppress the same. into Latin by one Thomas Rowghton, calling And the king of England (1) bath not only it “ De Officio Admiralitatis," there are consti- an empire and sovereignty over the British sea, tutions often mentioned touching the Admiralty but also an undoubted jurisdiction and power, of Henry 1, Richard 1, king John, and Ed- in concurrency with other princes and states, ward 1, which shews the great antiquity of for the punishment of all piracies and robbethat Court.
ries at sea, in the most remote parts of the And as to the jurisdiction of the Court of Ad- world. miralty, not to enter upon the disputes between Now as to the nature of the offence: piracy the civilians and the common lawyers concern is a robbery committed upon the sea, and a piing the same; I shall now only observe to you, rate is a sea thief. that it is allowed even by those statutes that Indeed, the word “ pirata' as it derived from were made purposely to restrain the jurisdic-weigãy, transire, à transeundo mare,' was antion of the Court of Admiralty, tbat that Court ciently taken in a good and honourable (m) ought to have cognizance of all things done upon the main sea, (g) or coasts of the sea. (i) 28 H. 8, c. 15, p. 486.
(k) No. 3. And of the death (h) of a man, and of maihem (V) See sir Charles Hedges's charge at the
Trial of Dawson, &c. (b) Godolph. p. 24.
(m) “ Pirata pro milite maritimo, órò to (c) Spelmanni Glossarium in voce Admiral, wsiçãv, i. e. transire vel pervagari. Asser. Me. p. 14, usque ad p. 17.
nevens. Epist, in vit. Elfredi.-Rex Elfredus (d) P. 215 to p. 230. And Justice's Laws jussit cymbas et galeas, i. e. longas naves, faof the Sea, p. 284 to p. 289.
bricari per regpuin, ut navali prælio bostibus (e) Coke on Littl. I. 3, c. 7, § 439, f. 260, b. adventantibus obviaret. Impositisque piratis in (f) Selden's Notes on Fortescue, p. 35, 36. illis, vias maris custodiendas commisit. Hoc (g) 13 R. 2, c. 5, p. 173.
sensu archiptratam dici censeo pro nautarum (h) See the Stat. 15 R. 2, c. 3, p. 180. præfecto, vel quem hodie admirallum puncu2 H. 4, c. 11, p. 193. 2 H. 5, c. 6, sect. 2, pamus. In quadam enim Chartâ Regis Edp. 214. And see 13 Car. 2, c. 9. Art. 36, p. gari Cænobio Glastoniensi confectà, An. Dom. 1174.
971, testium unus, Martusin archipiratam se VOL. XV.