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mittee, upon preparing and settling the same, I 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 Committee, 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 inseri. solution. And the same being objected to : ios, instead thereof, seren o'clock in the EVER. “ 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.
7- The following Case is chiefly taken from the the policy of the new regulation concerning
Reports of lord Fortescue, 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 pass. nion 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 consi. introduced 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 persuasire, the care and approbation of such marriages:' and superior to that, which was upon the same The generality of this recital, together wiih occasion delivered by lord Chathatu. the restraints introduced to guard the de- ! This conscientious opposition lost not Lorin scendants of George the second from im- the royal favour, which he well deserved. !! 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 mar Mr. Robert Price to the duke of Beaufort.
| riages celebrated in foreign countries, and also f. It may be worth notice, that in the House concerning marriages with Papists celeb of Lords, tbe learned and pious Lowth, thien under the provisions of the second claus bishop of Oxford, who was much attached to the statute. These topics are treated on the king, not only voted but spoke against this the recently published first volume of Bill, as repuguant to the precepts of morality | Madock's Life of Lord Sominers.
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, “ The au. 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. 8ih 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." 6 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 tbeir detion, whether the grandfather being king, pendence upon the crown, during a consi. or the father heing only beir 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 2u'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
1 - Sir Francis Pemberton was Chief Justice a minor king or queen. Other incidents to the office of protector, guardian, or regent,
of the Common Pleas at the time of Lord 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. Comin, 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. In the years,
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 (It is to be hoped, that Mr. Hargrave will
made Chief Justice of the Common Pleas, incorporate into his · Jurisconsult Exercita
and sir Edmund Saunders was made Chief tions,' 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, I ap
in Trinity Term, 35 Car. 2, and that the
Lord Chief Justice Saunders died either the prehend it is still left upsettled, 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 a
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 Ed. child, 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 January, 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 emergency 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 justicesbip. 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
has since been contracted by st. 24 G. 2, c. i contemplation of his power to displace them 48.] The next is of the 3rd of November, 1 upon bis accession, or to conciliate his fathough 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 prioce,
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 Srd, in the commenceCommon 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 one 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 conducire to the appears by the book of fines in the Common honour of the crown ;') was pleased to rePleas, that sir Francis Pemberton, as cbief commend, that the judges should be contijustice, took acknowledgments of fines in nued in their offices during their good behathat 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 terin in the fourth year of his late malutions of the Commons in 1680.
jesty king George, and in the vear of our Lord Bishop Burnet, in relating the bistory of the
J 1718, at the right honourable ihe lord Parker's
chambers in Serjeant's-lon in Fleet-street, year 1692, tells us, that “ Among the bills that were offered to the king, at the end of
o be being then lord chief justice of England, the session, one was to secure the judges'
l(afterwards lord chancellor of Great Britain) salaries; and to put it out of the king's
in pursuance of the then lord chancellor Cow power to stop them. Tbe judges had their per's letter from the king. commission during their good behaviour; |
The judges being met, the chancellor's yet their salaries were not so secured to
letter was read, which was to signify the king's 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
pion upon the following question,t viz. ed to him, by some of the judges themselves,
" Whether the education, and the care of
| the persons of bis majesty's grand-children, that it was not fit they should be out of all dependence on the court; though it did not
now in England, and of prince Frederick,
eldest son of his royal bighness the prince of appear, that there was any hurt in making judges, in all respects, free and indepen
Wales, when his majesty shall think fit to dent."
cause him to come into England, and the or.
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, (aš to which see Mr. Serjeant | (see it in this Collection,) June 8, 1768, in Heywood's Vindication as already cited. Wilkes's Case ; and what lord Mansfield then See, too, in particular, Whitelocke's anec- said, Mr. Horne Tooke afterwards made the dote relative to the conduct of judge Croke subject of some contemptuous animadversion. in the Ship-money Case.) Still, however, it See, in this Collection, bis speech on Nov. 24, was held, that their commissions became va- . 1777, when he came to receive the judgment cant upon the denise of the crown, until by of the court of King's-bench, upon his copric1 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 f 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.
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 kiog 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. 240, 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 Carier, a | Isabellam junior' sororem nostramn.” And many baron of the Exchcquer, to this effect : that other strong expressions there are, as “ marihis royal highness the prince of Wales, under- tabimus et concessimus in uxorem ; laborastanding 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 bad 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 Recor.), 326. “ We have considered of what you have been T here is also the famous case of the coun., pleased to propose froin his royal highness tess of Shrewsbury, and she was sent to the the prince of Wales, and we are all of opinion, 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 his 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 ihe 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 after 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 seriatim.
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, which shews, ticles of Car, 1, then 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 goissue of that marriage, which was, that the vernor of the duke of Gloucester, as a mark sons agd 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 prea the 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 father's consent. the ten years of education with the infapta 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 mine 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 of twelve years. 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. H. 3, is very material. The kipg's sister Joan in the British Museum. VOL. XV.
Wales, with one of the daughters of John | the reason should be stronger for the prioce duke of Burgundy, and earl of Flanders, to have greater power than ordinary persons
have. Now as to Bracton, who treats of this Friday, Jan. 24, 1717.
subject, that is transcribed from Justinian,
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
the common law, and is nothing but civil law. read out of Kennett's History of England, viz.
Vide Selden's Dissertation on Fleta. The queen continuing in the sanctuary with
There is little to be found in Rymer corher son, the duke of York, the archbishop of
cerning this matter, for there is no instance Canterbury was sent by the duke of Gloucester,
where there is a father and grandfatbe alive and other lords, to the queen, to persuade her
together, but one in the 8th vol. Rymer, p. 608. to deliver up the duke of York, or else they
In H. 4th's time, grants were iodeed made by were to take him away by force. Here the prince of Wales's secretary, the
| the king for the maintenance of the earl of said Mr. Molineux, attending the judges, with
March in the custody of the prince of Wales.
But there is nothing here can establish a preMr. Serjeant Reynolds the prince's counsel,
rogative in the crown. I have only looked sent in to the judges, and brought an order
over the first ten volumes of Rymer, and shall with them from the king in the following words :
not trouble your lordships with history, as that « 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 learned to be heard by his counsel, bis majesty's plea
counsel, and they told her that she bad the | right of wardship to the duke of York.
in sure is, that any one single person that his |
There is no instance or case whatsoever in royal highness shall think fit to appoint may
any law book or record, in the case of the apply to the judges, and shall be admitted to lay before them what he has to offer in behalf
crown, or indeed any where else, that the
custody belongs to the grandfather, nor was of bis royal highness, in relation to the question before them.”
ever claimed or pretended to by the grand
father. Upon this Mr. Molineux offered to come in, but he was refused to be admitted, because he
As to marriage, every man may marry his was not within the order of his majesty ; but
daugbter where be pleases. The ancient feudal Mr. Serjeant Reynolds, afterwards lord chief
law did extend pretty far as to marriages. baron, was admitted as counsel for the prince
| Britt. cap. 67, 68, p. 168, b. So is Co. Latt. of Wales, according to the king's leave, and
140, and never denied, but only in the case
of a widow holding of the crown, who cannot argued as follows:
marry without leave of the crown. Mag. Reynolds, serjéant at law for the prince. Cba. cap. 7. 2 løst. 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 be came.
strained by act of parliament, and now that act And then the Serieant went on thus. The is repealed. guardianship of the children of right belongs Rymer, vol. 4, 605, 608, wbich 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 pro 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, de ma5 Ph. & M. cap. 8. Now why is the power trimonio contrahendo, &c. promittimus et mohere supposed to 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. 87, p. 37. Though the prince is but a subject, | 88, concerning the oath avd marriage articles yet in dignity he is made much greater, and there mentioned, they were allowed to be censupposed in some cases to be almost equal with trary to the known laws of England, and the the king, as Seld. tit. Hongur, 495. So that treaty therefore confirmed by parliament.