2 clusive of the father was, because the father himself was not sui juris, and in his power, but in patris familias sui manet potestate, maxcipioque; which are the words of the law of I the twelve tables; and it was manifestly absurd, that he should have others in his power, who was not in his own.-This servile condition of the son to the father, which had ordinarily no end, tili the father himself was pleased, by emancipation, to put an end to it, being the sole foundation of the grandfather's right to the grand children, as well as to every thing else the father was possessed of; when this state of the father ceased, the power of the grandfather necessarily ceased with it. And so it is declared in Justinian's Institutes, that if the son was emancipated and set free from the power of his father, the children begotten after such emancipation are not in the power of the grandfather, but of the father.-Quod si their father, was killed in Ireland 22 R. 2, and that their mother soon after married Sir Edward Charlton, Lord Powis, and died 7 Henry 4. so that the eldest son was then in ward to the Crown, by reason of his lands held of the Crown, as were his lordships of Wigmore and Clare inter alia; aud his brother Roger was then an infant of very tender age, and under the care of the King as next relation; and it appears that he died very young, in which latter case we humbly conceive that the care which the King was pleased to take of an infant and orphan so nearly related to him, will not be a precedent to establish a power to the Crown to dispose of the custody of a child while the father is living-If any stress can be laid upon printed history, the case of Richard, son to Edward the Black Prince, will be an instance against this power, supposed to be lodged by law in the grandfather. He being a minor, lived with his father as part of his fa 1 post emancipationem conceptus fuerit, patris sui ≈ emancipati potestati subjicitur.-But not to in-mily, and his father appointed his governor, sist that by the laws of England no father has such a power over his children, even in 1 their minority, as the Roman law gave, it is undeniable that with us marriage hath the nature of a true and proper emancipation of the person of the son and by consequence, even upon the grounds of the Roman law, the grandfather with us can have no right to the children of the son, but the father only. If, therefore, nothing otherwise ap pears to distinguish the case of the Royal Family, there can be no foundation upon which any prerogative can be established in the instance now in question, and we humbly apprehend that the only precedents which can be alleged to support such a prerogative, when considered, will not be found sufficient. The first, in the 22d Henry the Third, entitled in Rymer, de Aliansra filia Galfridi, &c. is only a declaration under the Great Seal that Wm. Talbot had surrendered to King Henry the Third, the Castle of Gloucester, et Alianorum consanguineam suam sanamet incolumen. What can be inferred from hence is hard to determine any farther than that this Alianor was in ward to the Crown, and had been committed to the care of Talbot, who had surrendered her and her estate safe again to the King. The other precedent, which is in the 11th of Henry the Fourth is a grant of annual sum of 500 marks to the Prince of Wales for the expense of the maintenance of Edmund, Earl of March, and his brother, so long as they should remain in the Prince's custody, to whom they had been committed the February before. As to this it appears by the history and records of those times that Roger de Mortimer, of which we have this relation in Hollingshead; that Sir Simon Burlie, kinsmen to Dr Burlie, one of the instructors of Edward the Black Prince, having been admitted among other young gentlemen to be schoolfellow with the Prince, he grew in such credit and favour with hon, that afterwards, when his son, Richard of Bourdeaux, was born, the Prince, for special trust and confidence which he had in the said Simon Barlie, committed the governance & id education of his son Richard to n.a; and after the death of the Black Prince, it appears by two very remarkable instances in our history, that Richard continued with his mother till the death of his grandfather, King Edward the Third.-The younger children of Edward the Fourth hved with their mother," whose wardship she declared she claimed by the advice of learned evansel, according to the relation given us by Sir Thomas More, afterwards Lord Chancellor of England, in his history of those times. Nor was it then pretended that the King had any right to their education, or the care of their persons; and although the Queen was prevailed upon to part with her son, Richard Duke of York, her daughters remained in her custody till she herself was contented to send them to court.- As to the education of their late Majesties, Queen Mary and Queen Anne, during their minorities, it does not appear to us that their unele, King Charles the Second, appointed their governesses and servants, or any one person that attended them, and we are not enough acquainted with the circumstances of the Duke of Gloucester case to make the proper remarks, but seems to have been by agreement with the King and we humbly conceive that the motion in Parliament, 13th Dec. 1099, for an address to the King to remove the then Bishop of Salisbury (Gilbert Burnet, D.D.) from being his preceptor, can be of po weight in this matter, since it passed in the negative. It is possible that something may be inferred in favour of this prerogative, from that article of the treaty said to be made by King James I. concerning the match with Spain, which related to the nurture and education of the children of that marriage. It is not to the pre-ent ques tion to consider, whether there ever was such a treaty as is related by Rushworth or not. It is certain that it is not to be found upon record, the proper evidence of a public treaties. The articles of the treaty are said in Rushworth to be styled by the cardinals, Proposition for the right Augmentation and Weal of the Roman Catholic Religion. And, in truth, almost every article is so derogatory to the supremacy of the Crown and the statutes made for the establishment and security of the church of England, that it could have carried no sort of authority with it in point of law, even though it had appeared in a regular manner under the Great Seal, and not from the re port of historians only. Nor can the oath said to be taken by Prince Charles, while in Spain, to intercede with his father, that the ten years of the education of the children which should be born of his marriage with the Infanta, accorded in one of the articles of this treaty, might be lengthened to the term of twelve years, as the Prince desired, be looked upon as a precedent to determine what the law of England is The right to the care and education of the children of that marriage, had it taken effect, was not then in dispute, and had it been so, nothing can be concluded from the voluntary engagement of the Prince, in favour of a marriage so much desired by himself as well as by his father, wherein the question of this right was never the subject of debate.There was indeed an article in the treaty with France upon the marriage of King Charles the First with Princess Henrietta Maria, whereby it was agreed that the children of that marriage should be brought up with their mother till their age of thirteen, but it is evident that treaty was made with King Charles the First after his accession to the Crown, and not with King James his father. King James, it is true. sent over the Earls of Carlisle and Holland to treat of that match, but thy tray was not concluded till after his death, and then by powers from King Charles the First, whose stipulations for the education of his own children could need no assistance from his prerogative.Thus have we humbly laid before your Majesty what we have to offer in relation to the books and precedents that have fallen under qur consideration upon this head, which we cannot think sufficient to infer a prerogative in your Majesty as King of this realm, in the care and education of your Majesty's grandchildren during the life, and without the consent. of their father; a prerogative, as we humbly apprehend, hitherto unknown to the laws of England.-All which is most humbly submitted to your Majesty's great wisdom. SPEECH OF MR. BARON FOR ESCUE ALAND, as delivered during the conference in the Judges' Chamber, and as reported by bimself. 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 mariage of his grandchildren, of necessary consequence he had their education too. ---I will then consider, first, whether the King has the care and approbation of the marriage of Prince Frederic and his other grand children, and whether of right it belongs to his ajesty, as King of this Realin, or 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 foundation of their argument. For it ought manifestly to be treated as jus pub-'-licum, such a right as our law books express it to be quod ad statem rei publicæ spectat, and that makes it the King's prerogative, and that is the King's inheritance, as King of this realm, which is too great a point to be governed by the narrow rules of private property. Now, to treat this otherwise is inju rious 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 Henry VI.'s time. And in his patent, which was made by authority of Parlament in 33 Henry VI the introduction of the patent is ut ipsum, qui reputatione juris censetur eadem persona nobiscum, digno preveniamus honore, S. 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 The act, therefore, which 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 Speaking of the Prince, it is said. -corruscat radiis Reges patris, et censetur una persona cum ipso Rege. So says Lord Hobart, who was the Prince's Chancellor, Hob. R-p 226 it is for the same reison 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 harts the Majesty of the King himself. It follows then, that as they are but one person in law, 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 sub. verts and destroys the distinction in common persons of grandfather, father, and son.—— Now, the King, as he is Parens Patria, be is also Parens Nepotum, parent of his grandchildren, as Lord Coke expounds the King's nephew to signify his grandson, also from the Latin nepos which signifies both. So in the case of a Queen consort, she is the first wife in the kingdom; Queen, 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 her private capacity, as the private wife of a common subject, she cannot sue or be sued herself, nor can grant to or from her husband; but, then consider her in her public character and capacity as a Queen, she can sue and be sued by herself, and make grants to and from the King her husband, by her prerogative, and anciently she had a great many. Now, I think, in this case, 'much may be argued from the names and appellations of the children of the Royal Family 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. Seldon 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, Clito is a Latin word, which comes from the Greek word κλειτος, which signifies Inclytus,most noble and famous. So the word the ling, as Edgar Ætheling, 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.The first son of the King is called Prince of England, before any creation: so it is in Scotland. Before the Union he was called Prince of Scotland; and so (says Mr. Seldon) 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. Having then mide 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; it 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 practised and been in possession of this right. Now, in the point or marriages, there are precedents from the time of H. III. down to this time. In 28 H 6. it was one of the articles of impeachment of High Treason against the Duke of suffolk for attempting only to marry his son to Margaret, the daughter and heir of the Duke of Somerset, who had a right to the Crown after the death of the King without issue, although she was not heir apparent, for there was a Prince of Wales then living. When be came to his trial, he did not deny but it was an offence, but insisted it was not true, for that some of the lords then present kuow that, he intended to marry his son to the Eal of Warwick's daughter. And this is till the stronger, because this lady was in ward to lim, and so he had a private right in her marriage.--By an Act of Parliament, 28 HS it is mide high treason to marry any of the Royal Family. It is thereby enacted, that if any person presume to marry any one of the King's children lawfully born, or otherwise, or commonly reputed, or taken for his children, or grandchildren, without the special leave of the King, he shall be adjudged a traitor to the King and the realm; and thereby it is made high treason in the lady too, being against the King and the realm, which shews clearly that the whole kingdom is concerned. ---And though this act is now repealed in a crowd with other ac's to bring all treasons to the standard of 25 Edward II. yet it is impossible the Parliament should make that high treason which was no crime at all before, and especially high treason in his own children; nay, when it was lawful before to marry any person of the Royal Family (if the doctrine we are taught be true) and each had a right to marry as they pleased. And, it is observable here that the Parliament makes no difference whether the father be living or not, nor takes any care of shat paterual right which is pretended. In Queen Mary's time, though this offence ceased to be high treason, yet it did not cease to be a crime; for in the year 1558, the King of Sweden sent a message secretly to the Lady Elizabeth, the Queen's half-sister only, afterwards Queen Elizabeth, who was then at Hatfield, to propose marriage to her. But she rejected it with warmth, for this reason, because the proposal came not to her by the Queen's direction. And, upon au excuse made by the King of Swe den, that he first made love as a gentien an of quality to gain her consent, and then he would, as a king, address himself to the Queen in proper form, her answer was, she was to entertain no such propositions unless The Queen sent them to her. Upon this the Queen sent Sir Thomas Pope to the Lady Elizabeth, to let er know she well approved of the answer she has made, and the Lady Elizabeth further declared, she would never see the messenger more, because he had presumed to come to her without the Queen's leave. So that !e e is one foreign King and two Queens of England concurring in the same sentiment, which seems strongly to argue that it is the law of nations, as well as the prerogative of this Crown.-The next instance I shall mention is the case of Lady Arabella, and a law book to support it, and that is the Cquntess of Shrewsbury's case, 12 *Co. 94 in the 10th year of King James the First. The Countess of Shrewsbury was thea in prison, and sent for before the Coun cil to answer to a contempt of dangerous consequence, because she refused to answer when examined about Lady Arabella's fight for marrying Mr. Seymour, she being of the Royal Family and there the Attorney and Solicitor General of the King, charged it as a crime, that Lady Arabella, being of the Flood Royal, had married Mr. Seymour, second son of the Earl of Hertford, without the King's privity and consent. Now, it appears Seymour was committed to the Tower for this offence, but escaped; and that Lady Arabella was also committed, and she e-caped, and was taken flying beyond the sea before she got over. -The first crime charged on the Countess was her abetting the flight of Lady Arabella, her niece, and the immediate crime was not answering in that case. Now, as marrying without the King's leave was no crime, she could never have been accused for not answering to her abetting the flight for such a marriage; so that the marrying without leave was plainly charged as a crime. They both were committed for a crime, and they both fied as for a crime, and it is admitted and taken for granted to be a crime. And her contempt in not answering in the case of marriage in the Royal Family was also resolved to be a crime; and this was done by all the great Ministers of State, and by the Chancellor and two Chief Justices (Fleming and Lord Coke), and Chancellor of the Exchequer and Duchy and Chief Baron, in the fifteenth year of King James 1. and in the end she was fined ten thousand pounds and committed to the Tower.The next case I shall mention is the marriage of the Princess of Modena and the Duke of York. There was an address of the House of Commons to the King to prevent this marriage. The King's answer is very remarkable. "It is completed" (says the King), "but it was with my conseat and authority," and the Parliament acquiesced in that answer, Now, this address was absurd if the King had no power to prevent it; so that this amounts to the judgment and opinion of the King and Parliament, that this right was in the crown exclusive of his brother. So here is the King claiming this authority even against his own brother and his private right, and the Parliament confirming it.- Then there is the marriage of the Princess Mary, daughter of the Duke of York, to the Prince of Orange. This match was made entirely by the King's consent, even without the knowledge of the Duke, her father, and against his liking and consent. The King, speaking to Sir William Temple about this match," says, "If I am pot deceived, the Prince of Orange is the ho nestest man in the world: therefore, he shall have his wife, and you shall go and tell my brother so, and that it is a thing I am resolved on." The Duke was chagrined a litfle, but said. " the King shall be obeyed,"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 .643, the match with the Princess Aune, 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 declara. tion of his Majesty to the whole nation.-And thus I beg leave to conclude the instances of marriage, but with this remark, that happy it is for this nation that the King in the two last instances had this prerogative; for had this pretended paternal right then prevailed, the English nation bad been for ever undone, and our religion des.royed, and we had never sees the inany and great bles sings we enjoy and are likely to enjoy by this family siuing on the throne of Great Britain, Thus the nation sees the trace of this happy prerogative from Henry Ill's time to this very day, being the compess 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 bo ks, the twojadges 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 mirage, he must have the education too The reason that my Lord Coke gives, why the Qwen Dowager cannot marry without the King's leave is, ne capitalibus inimicis regis magitentur. Now, the reason for th. Kings 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 po-. litics, and become himself an enemy to the constitution and to the kingdom. Marriage is one of the manu ends of the education; and that education is a principat qualification for that marriage, and therefore con never be so properly placed as with him who has the marriage. Vide 6 H. Vi. 2 Inst. p. 18.Besides, these two powers, if placed in difierent 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 ap pointment of the time of that marriage, and consequently he can, at any time, appoint son. it; and he that can at any time appoint the marriage, en 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 perAgain, it is a true and regular argument, and conclusive to say, that whoever has the end must have the means also, otherwise he cannot be said to have the end.--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 Majesty'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 surprise got leave of his father to make a journey to Spain, to fetch home his mistress the Infanta, revolving in his mind the hazard of that expedition, and the ill influence it might have on the people. King James then declared that the Prince was looked upon by his people as the son of his kingdom.—Clarendon's History, page 14. And this being related by him, carries with it his authority too, who was a very great lawyer, and chancellor of the realm.--The law books of Bracion 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 statue, 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 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, I own I am not a little surprised that these books should be denied for law, when in my li tle 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 where some statute or usage, lime out of mind, has altered them. We have been told, indeed, that they were quoted in the case of ship money. But, I believe, that objection would not have been made if they had been aware that those very. books were quoted on both sides of the ques tion, which destroys the objection, and shews that 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, be cause 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. Dir. Seldon says, |