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and Marriage of the Royal Family.

The prince's counsel, serjeant Reynolds, hav-compel them. It is impossible this question ever should come into Westminster-hall to be ing ended his argument, withdrew; and then determined there, and therefore to say there is no legal determination, is to say nothing to the purpose. This is in its nature so great a trust that it cannot by the constitution be lodged any where but in the crown.

Lord Chief Justice Parker went on with the case of Ed. 5. The queen being in the sanctuary says, my son, as my learned counsel tell me, is my ward, because he hath no lands by descent holden by knight's service, but only by socage, and therefore to me by law the guardianship of my son does belong. Kennett's History, 490. Then the story in Ed. 3, was read, to shew Richard the second, then prince of Wales, and son of the late Black Prince, was in the custody of his mother, for he was at Lambeth with his mother, which is nothing to the purpose. But what brother Reynolds says about the statute 12 Car. 2, it is neither law nor reason, nor is, or can the prince of Wales be within that act of parliament.-As to the authority of Bracton, to be sure many things are now altered; but there is no colour to say it was not law at that time, for there are many things that have never been altered and are law now. And as to what is said as to the articles and oath quoted out of Rushworth, their being against law, that is only gratis dictum;' for whether it was a fair treaty or no, is not the question, for this matter was only between the king and the prince.

Baron Price. There is such an oath on the occasion of the said marriage as has been mentioned; but I do not know whether it has not been protested against. We must trust to collectors for these articles. The articles of marriage of Car. 1, with Henrietta Maria, are in Rymer, vol. 17, 673, 676, one of the articles much like what was mentioned before, which was, that she was to have the nurture of her children till 13 years old, these articles were agreed on in king James's time, 12 Rymer, 658. The prince's counsel seemed to agree, that marriage and education go together.

King, Chief Justice of the Common Pleas, afterwards Lord Chancellor. In the bill of precedency it fully appears, that the king's grand-children are children. In the case of children of the royal family sent beyond sea, the king's grand-children are within that law. So prayers for the king and his royal family, includes all his grand-children, though the king had no son living.

Chief Justice Parker. The law of God and law of nature are rather with the grandfather, and the succession cannot be altered, for that every man has a right in the royal family.

Justice Eyre. It is the constant custom for all the king's servants to ask the king's leave to marry. Rymer, vol 16, p. 710.

Chief Justice Parker. There is no law against any one for marrying without the father's consent; but the crime is to marry any of the royal family without the king's consent. The king's consent was always held necessary, in the case of marriage of any of the royal family, always used and never contested. Were it otherwise it would be setting up two independent powers, and is a trust too big for any subject.-The case of the princess of Orange's marriage, and that of the princess Anne of These matches Denmark, are great instances of the power and prerogative of the crown. were publicly declared by the king himself, and against the consent of the father.

Baron Montague quoted Stair's Institutions of the Laws of Scotland, fol. 38, which agrees with Bracton, lib. 1, cap. 9, exactly, and with Fleta, lib. 1, cap. 6.

Justice Eyre quoted Cowell's Inst. tit. 9, p. 14, de patria potestate; then he said that Edward the Black Prince disposed of the governance of his son Richard of Bourdeaux, afterwards Richard 2, to Simon Burleigh made his tutor at Bourdeaux. Hollingshead,414. And in the case of the countess of Shrewsbury no offence was declared. Hob. 235. Dugdale's Baronage.

Justice Dormer quoted Rushworth's Collect. 1st part, 168. Eachard 974. Bacon of Government, fol. 14. And in lord Clarendon's History, baby Charles is said to be the child of the kingdom.

Then the Judges proceeded to give their opinions seriatim, beginning from the junior, which baron Fortescue Aland, who had been solicitor general to the then prince of Wales, one of the first officers in his service, as follows:

was

Baron Fortescue Aland. My lords, this is a question of great importance to the whole kingdom, and I am content for the better discussing it to divide it into two parts; because it

has been so done by some of my brothers, though I should have thought that if the king has the marriage of his grand-children, of necessary consequence he had their education

too.

I will then consider first, whether the king has the eare and approbation of the mar riage of prince Frederick, and his other Baron Price. There is no judicial determi-grand-children; and whether of right it benation, nor any case that comes up to this. longs to his majesty, as king of this realm, or The question here is, whether this power be in the king, exclusive of the prince? If there be an ill king upon the throne, it may be very mischievous.

Chief Justice King. The question is, whether the king's grand-children can marry without the king's leave: for the father cannot

not.

This subject, touching the power of a grandfather, may be treated of, either as a public or a private right. It has been treated of pretty much as a private right by the two judges that differ, and by the counsel for the prince of Wales, which I think is an error, in the foun

dation of their argument; for it ought mani- | but then consider her in her public character and festly to be treated as 'jus publicum,' such a | capacity, as a queen, she can sue and be sued right as our law books express it to be, quod by herself, and make grants to and from ad statum reipublicæ spectat,' and that makes the king her husband, by her prerogative; it the king's prerogative, and that is the king's and anciently she had a great many. Now I inheritance, as king of this realm, which is too think in this case much may be argued from great a point to be governed by the narrow the names and appellations of the children of rules of private property. Now to treat this the royal family. otherwise, I think, is injurious to the prince himself and all his children. Our law books say he is esteemed as one nearest to the king. So it has been determined in full parliament, in the case of the prince of Wales in H. 6th's time; and in his patent, which was made by authority of parliament in 33 H. 6, the introduction of the patent is, ut ipsum, qui reputatione juris censetur eadem persona nobiscum, digno preveniamus honore, &c.' so that in the eye of the law, they are to be reckoned but as one person..

It is for the same reason that an act of parliament which relates to the prince is a public law, of which every body is to take notice, because whatever concerns the prince, concerns the king, and whatever concerns the king concerns every subject in England; and therefore the act that relates to the duchy of Cornwall has been held to be a public law. Now let us see what is said in my lord Coke's 8 Rep. called the Prince's Case. S eaking of the prince, it is said, coruscat radiis regis patris, et censetur ⚫ una persona cum ipso rege.' So says lord Hobart, who was the prince's chancellor, Hob. Rep. p. 226.

It is for the same reason, that it was high treason, by the common law of England (before any statute) to compass and imagine the death of the king's eldest son and heir, who is generally made prince of Wales, though now born duke of Cornwall (but is not so of a collateral heir to the crown); and this offence is called crimen læsæ majestatis,' a crime that hurts the majesty of the king himself. It follows then that as they are but one person in faw, so in point of law they are supposed to have but one will in relation to the education, marriage, and management of the grandchildren; and the prince of Wales in point of law is supposed in every thing to concur with his majesty; which quite subverts and destroys the distinction in cominon persons of grandfather, father and son. Now, the king, as he is parens patria, he is also parens nepotum, parent of his grandchildren, as lord Coke himself expounds the king's nephew to signify his grandson, also from the Latin nepos, which sig. nifies both. So in the case of a queen consort, she is the first wife in the kingdom, quen in the Saxon language signifying wife. And therefore by reason of excellence it was the name for the king's wife, who consider her in ber private capacity, as the private wife of a common subject, she cannot sue or be sued by herself, nor can grant to or from* her husband;

* There is considerable inaccuracy of language in this and other parts of the report. Hargrave.

In history they are called the children of England, and all of them born princes and princesses of England, before they had any title, and all of them kings and queens in potentia, and may one day reign over us, Selden calls them heirs apparent of England, and they are called so in the parliament rolls. This agrees with the most early times in our kingdom, for till Henry the first's time they were distinguished from all other persons, by calling both the eldest and the rest of the king's sons' Clito, and Clitones, and they had no other titles. Now clitois a Latin word which comes from the Greek word Kaur, which signifies inclytus, most noble and famous. So the word Etheling, as Edgar Etheling, who was not the king's son, but his great nephew, from the Saxon word Ethel, nobilis; which shews that all the royal family were called by the same name as the king's sons, and so sets out the admirable union of the royal family. Selden's Tit. Hon. 498, 499.

The first son of the king is called prince of England before any creation. And so it is in Scotland. Before the Union he was called prince of Scotland. And so says Mr. Selden it is in other nations. As in France, the duke of Orleans, regent of France, was called Petit Fitz de France, grandson of France, not grandson to the king. So Henrietta Maria, in the marriage articles with Charles the first, was called Fille de France, daughter of France, and not daughter of the king. Rymer 17 tom. p. 674. Selden's Titles of Honour 493, &c

it

Having then made it appear, I think clearly, that all the children and grandchildren of the royal family are public persons, and princes of the nation, and the prince of Wales himself one and the same person with the king; follows manifestly, as a just corollary and consequence, that the king, who has the executive power in him, is to have the care and command in the marriages of these children, for the good of the whole nation. It is part of that original trust, which, by the constitution of our government is reposed in the king, for the security of his people.

And as this is a prerogative vested in the crown, in the reason of the law, and nature of a monarchy; so in all ages the crown has prac tised, and been in possession of this right.

Now in the point of marriages there are precedents from the time of Henry 3, down to this time.

In 28 Henry 6, it was one of the Articles of Impeachment of High Treason against the his son to Margaret the daughter and heir of duke of Suffolk for attempting only to marry the duke of Somerset, who had a right to the

was chagrined a little, but said, "the king | must have the means also, otherwise he cannot shall be obeyed.' See sir William Temple's be said to have the end.

Memoirs.

Here is a father acknowledging the right to be in the king, to marry his own daughter, who was only a collateral relation to the king, and married against the father's will, as every one knows.

In 1683, the match with the princess Anne, the other daughter of the duke of York, was made by the king, in the same manner. And both these marriages were established by a public declaration of his majesty to the whole nation.

If I have the marriage of any person, I can never be sure of that, unless I have the custody and education of that person. But his majes ty's prerogative, in this part of the question relating to the education, is as clearly to be made out, though not by so many instances as the case of marriage.

When prince Charles had by surprize got leave of his father to make a journey to Spain, to fetch home his mistress the infanta; revelr. ing in his mind the hazard of that expedition and the ill influence it might have on the peo

was looked upon by his people as the son of his kingdom. Clarendon's History, p. 14. And this being related by him, carries with it his authority too, who was a very great lawyer, and chancellor of the realm.

And thus I beg leave to conclude the in-ple, king James then declared that the prince stances of marriage; but with this remark: that happy it is for this nation, that the king in the two last instances bad this prerogative; for had this pretended paternal right then prevailed, the English nation had been for ever undone, and our religion destroyed, and we had never seen the many and great blessings we enjoy, and are likely to enjoy by this family sitting on the throne of Great Britain.

Thus the nation sees the trace of this happy prerogative, from Henry the 3d's time to this very day, being the compass of almost 500 years, uninterrupted, undisputed, and not one single instance to the contrary.

These instances concerning marriages of the royal family being so numerous and the light so glaring, from histories, records, public acts, statutes, and law books, the two judges, who differ, could not resist this part of the question; but have retired to the other part, that of the education, though I hope to prove that if the king has the marriage, he must have the edu

cation too.

The reason that my lord Coke gives, why the queen dowager cannot marry without the king's leave is,ne capitalibus inimicis regis 'maritentur.' Now the reason for the king's having the wardship of his grand-children, and education too, is stronger, viz. lest the heir of the crown himself be led aside by ill principles, and bad politics, and become himself an enemy to the constitution, and to the kingdom. Marriage is one of the main ends of the education, | and that education is a principal qualification for that marriage, and therefore can never be so properly placed as with him who has the marriage. Vide 6 H. 6. 2 Inst. p. 18.

Besides, these two powers, if placed in different persons, may clash, and be repugnant; for which of them is to determine when the marriage is to begin, and to whom, and when the education is to end.

Again : if the king has the marriage, he has the appointment of the time of that marriage, and consequently he can at any time appoint it; and he that can at any time appoint the marriage, can at any time call for the custody of that person; and he that can at any time demand the person out of custody of another, has the entire power over that person.

Again: it is a true and regular argument, and conclusive to say, that whoever has the end,

The law books of Bracton and Fleta, which have been quoted, are the ancient law of the land extending to all cases; but this law being altered only in private cases by usage and statute, it remains law to this day, as to the royal family; because as to them this law has had no alteration by any law or statute whatever, and the usage has gone accordingly.

These law books are so strong, that there has been no way thought of to evade them, but by denying the authority of them, and calling it civil law. But Iown I am not a little sur. prized that these books should be denied for law, when in my little experience I have known them quoted, almost in every argument where pains have been taken if any thing could be found in those books to the question in hand; and I have never known them denied for law, but when some statute or usage time out of mind has altered them. We have been told indeed that they were quoted in the case of Shipmoney; but I believe that objection would not have been made, if they had been aware, that these very books were quoted on both sides the question: which destroys the objection, and shews they were approved of by all who argued in that case, both of one side and the other.

But if it be meant civil law, because it is in force in all civilized nations, I believe that is true; for I take this to be the prerogative of all kings: nor has there been any instance given in any monarchy, where the law is otherwise.

Mr. Selden says the king of England is an emperor, and this realm an empire, and so called in statutes and records without number: and if so, he will have this prerogative equal with other kings and emperors, if no statute, law, or usage says the contrary.

If the prerogative then be the law of nations, that is part of the law of the land, and will give the king a clear title to it.

See the statute of precedency which is 32 H. 8, cap. 10. It enacts, that no person presume to sit at any side of the cloth of state (ex. cept the king's children). Then when it goes on to place the great officers of state, it says,

So is 51 Edw. 3. This prince Richard holds a parliament, by commission from his grand-assemble all the counsellors of our said son.” father, and that runs in the same manner: de circumspectione et industriæ magnitudine charissimi filii nostri Ric'i principis Walliæ.' Pat. Rol. 51 Edw. 3, m. 41.