this realm, or not?'

against the daughter's marrying against the vernors and governesses, and other instructors, father's consent; but if against the king's con-attendants and servants, and the care and apsent, and she is one of the royal family, that is probation of their marriages, when grown up, against the law expressly. The fifth com.belongs of right to his majesty, as king of mandment requires obedience from the grandson, as well as from the son. If the grand- "We whose names are hereunto subscribed, father command the son any thing, the son being ten of your majesty's judges, together ought to comply, else it is disobedience, and in with the other two judges, having taken the the king only to command. Then as to the same into consideration, and after the most dieducation of the royal family, that is in the ligent search that we could in this time make king only, as his peculiar prerogative. The into acts and proceedings of parliament, treamarriage articles of Car. 1, is a very strong ties, public instruments, and records, histories case, and stronger than I could expect to find and law books, and consideration of the powers it. There being no grand-children since Ed- and prerogatives, which from time to time in ward the 3d's time, so many instances cannot very many instances have been exercised, and be produced; nor cau this happen, but where owned to belong to your majesty's royal anthere is a disagreement in the royal family. cestors and predecessors, with relation to the In this case of Car. 1, it is not only an agree- marriages and care of the persons of the ment, but a solemn treaty upon oath, and many branches of the royal family, and of the great years a-doing. The king did not need to enter concern of the whole kingdom in so important into a treaty, if the prince had it in his own a trust; and after having, pursuant to your power entirely; but he says conditionally, if majesty's farther command, signified in like this devolves to me, then I will alter it. The manner to us, heard a learned serjeant-at-law, contract was not of so much use if the grand- who, by the command of his royal highness, father lived; but if he died it would devolve to laid before us several things relating to the him, and then he would alter and enlarge it. question aforesaid; and after several con And whether this contract was well or ill made, ferences, and deliberations upon all the matters is not the question, and nothing to the purpose: aforesaid, and what occurred to us, and the there was a power to make this contract in the other judges thereupon; we are humbly of king; nor is it a question, whether an ill use be opinion, that the education and the care of the made of the power or not. But the prince has persons of your majesty's grandchildren now almost in express words said, he has not that in England, and of prince Frederick, eldest son power. The power is not in the prince till it of his royal highness the prince of Wales, devolves to him as king. And this was on a when your majesty shall think fit to cause him very solemn occasion. It is never to be sup- to come into England, the ordering the place of posed the king will make an ill use of any their abode, and appointing their governors and power he has by law, nor is it to be presumed their governesses, and other instructors, atthe king will do wrong, because all power is tendants and servants, and the care and appro committed to him by law. You may suppose bation of their marriages, when grown up, do any subject, though never so great, to be in belong of right to your majesty, as king of this the wrong, but not the king. No man that realm. talks like a lawyer can say otherwise; and therefore I think clearly this is the king's prerogative.

Both these Opinions were afterwards drawn up in short by the ten judges, for the prerogative, and also in short by the two judges, that differed in opinion from the ten, against the prerogative, and were delivered severally under their hands to the lord chancellor, to deliver to the king. They are as follows:

TO THE KING'S Most Excellent Majesty.

"May it please your majesty; "In bumble obedience to your majesty's commands, signified to us by the right hon. lord chancellor, requiring the opinion of all your majesty's judges upon the following question, viz.

Whether the education and the care of the persons of his majesty's grandchildren now in England, and of prince Frederick, eldest son of his royal highness the prince of Wales, when his majesty shall think fit to cause him to come into England, and the ordering the place of their abode, and appointing their go

"All which we most humbly submit to your
royal majesty's great wisdom.
PARKER,
P. KING,
T. BURY,

R. TRACEY,
ROBERT DORMER,
J. PRATT,
J. MOUNTAGUE,
J.BLENCOE, FORTESCUE A."

L. POWYS,

MR. BARON PRICE'S AND MR. JUSTICE
EYRE'S OPINION UPON THE Prince's
CASE.

TO THE KING'S MOST EXCELLENT MAJESTY.
February 1, 1717.

May it please your majesty; In humble obedience to your majesty's commands, signified to your judges by the right honourable the lord chancellor, we have taken into consideration the following question, viz.

Whether the education and care of the persons of your majesty's grand-children, now in England, and of prince Frederick, eldest son of his royal highness the prince of Wales, when your majesty shall think fit to cause him to come into England, and the ordering the place of their abode, and ap.

ther, without exception. [Littleton, § 114. 33 H. 6; 55 Co. Litt. 84, 84, b. 3 Co. 38; Vaugh. 180; Litt. §. 123.]

pointing their governors, governesses, and other instructors, attendants, and servants, and the care and approbation of their marriages, when grown up, belong of right to your majesty, as king of this realm, or not.' And we are humbly of opinion, that the 'education and care of the persons of your 'majesty's grand-children, the ordering the 'place of their abode, and appointing their governors, governesses, and other instructors, 'attendants, and servants, belong to the prince their father.' But, that the care and ap'probation of their marriages, when grown up, belong to your majesty, as king of this realm.' This, Sir, is our humble opinion. But when we acquaint your majesty that the care and approbation of the marriages of your grandchildren belong to your majesty, as king of this realm, we desire to be understood, as speaking of a care and approbation not exclusive of the prince their father. But as your majesty's care will be always employed for the good of the royal family, and the welfare of your people; so it is a duty incumbent upon every member of the royal family to apply to your majesty, and receive your royal approbation upon every occasion of this kind; for we find that all negociations of marriages in the royal family have been carried on by the intervention of the crown, and such marriages as have been contracted without the royal consent aud approbation, have been thought contempts of the regal authority: but we find no instance where a marriage has been treated by the crown, for any person of the royal family, without the consent of the father; and we beg leave to assure your majesty, that there is no one ex. pression in any of our law-books that warrants' any such assertion.

As to the other part of the question, in answer to which we cannot concur with the other judges; it is our duty humbly to lay before your majesty, that in our opinion the father hath in all cases a right to the custody and education of his children, and this we take to be clear from the general rule of law.

Upon the best search we have been able to make, we can find but two books written by English lawyers, that can possibly induce a contrary opinion (Bracton and Fleta.) Bracton treating de patria potestate says, Qui ex filio tuo et ejus uxore nascitur, i. e. nepos tuus et neptis, æque in tua potestate sunt, et pronepos et proneptis, et deinceps cæteri;' and, in potestate patrum sunt filii qui nascuntur in justo et legitimo matrimonio, idem in nepotibus et pronepotibus, quantum ad avos et proavos paternos;' which Fleta has also said in almost the same words, and which both have taken from Justinian's Institutes. [Bracton, l. 1, c. 9. Ibid. §. 4. Fleta, l. 1, c. 6. Justin. l. 1, tit. 9, §. 3.] This shews it to have been a part of the Roman law; but it neither is, nor, as we conceive, ever was, a part of the law of England. It is well known that Bracton and Fleta wrote their several treatises upon the plan of the imperial laws; and it is as well known, that those laws never obtained, here, through the genera! aversion this nation (always zealous of its liberties) had towards them; and accordingly, wherever these writers differ from our year books, and authentic reports, they are not allowed to be of authority. And as to this part of the Roman law in particular, which relates to the patria po testas, it is acknowledged by all, even by Justinian himself, that it was so peculiar to the Romans, that it never obtained among any other people whatsoever. Jus autem potestatis, quod in liberos habemus, proprium est civium Romanorum; nulli enim sunt homines, qui talem in liberos habeant potestatem, qualem nos habemus.' [Justin. l. 1, tit. 9, §. 2.]

But to give a more particular answer to these passages, which are the only ones that have the least appearance of law, it is evident they cannot be made to affect the case of the royal family, by any other construction than what will equally affect every other family in England. But that from these passages nothing can be concluded, to determine the extent of the patria potestas in any family here, is clear from the reason, on which the power of the grandfather among the Romans is founded.

father, was, because the father himself was not sui juris, and in his power, but in patris familias sui manet potestate, mancipioq; which are the words of the Laws of the XII Tables; and it was manifestly absurd, that he should have others in his power, who was not in his own.

This right of the father is said in our books, to be founded jure nature, and to be annexed by nature to the person of the father. (7 Co. 13.) In case of younger children, it never was disputed; 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 father, but of the grandfather exclusive of the ther obtained even against the lord, [30 E. 3, 17.] though his seigneural right to the wardship of his tenant during the minority prevailed against the grandfather, and all other ancestors lineal and collateral. Littleton, Coke, and Vaughan, all agree that none can have the custody of a man's son and heir apparent from the father; and in the common case of a tenure in socage, even the mother has the right of guardianship, after the death of the father, preferable to the grandfather. From hence we take it to be the general rule of law, that the guardianship of the children is a right common to every subject of this kingdom, who is a fa

This servile condition of the son to the father, which had ordinarily no end, till the father himself was pleased by emancipation to put an end to it, being the sole foundation of the grandfather's right to the grandchildren, 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, | appointed his governor, of which we have this 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 post emancipationem conceptus fuerit, patris sui emancipati potestati subjicitur' [Justin. I. 1, tit. 12, §. 9.]

But not to insist that by the laws of England no father has such a power over his children, even in 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 appears 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 22 H. 3, entitled in 1 Rymer, [378] De Alianora filia Galfridi,' &c. is only a declaration under the great seal, that William Talbot had surrendered to king Henry 3, the castle of Gloucester, Et Alianorum consanguineam suam sanamet incolumem.' What can be inferred from bence 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 1 H. 4, is a grant of an annual sum of 500 marks to the prince of Wales for the expence of the main tenance 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. [8 Rymer 608.] As to this it appears by the history and records of those times, [Sandford's Gen. Hist. 226, 227,] that Roger de Mortimer their father was killed in Ireland 22 R. 2, and that their mother soon after married sir Edward Charlton lord Powis, and died 7 Hen. 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; and 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 in the crown to dispose of the custody of a child while the father is living.

If any stress can be laid upon printed his tory, 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 family, and his father

relation in Hollingshead: [3 Hol. 414.] that sir Simon Burtie, kinsman to Dr. Burlie, one of the instructors of Edward the Black Prince, having been admitted among other young gentlemen to be school-fellow with the prince, be grew in such credit and favour with him, that' afterwards, when his son Richard of Bourdeaux was born, the prince, for special trust and confidence which he had in the said Simon Burlie, committed the governance and education of his son Richard to him; and after the death of the Black Prince, it appears by two very remark- ́ able instances in our history, that Richard continued with his mother till the death of his grandfather king Edward the 3rd. [2 Brady, 307. 1 Kennet, 33. Stow, 274. 3 Tyrrel, 771. Walsingham, 192]

The younger children of Edward 4 lived with their mother, whose wardship she declared she claimed by the advice of learned counsel, 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. [Stow, 445. 1 Kennet, 490.]

As to the education of their late majesties queen Mary and queen Anne during their minorities, it does not appear to us, that their uncle king Charles the second appointed their governesses and scrvants, or any one person that attended them; and we are not enough acquainted with the circumstances of the duke of Gloucester's case to make the proper remarks, but it seems to have been by agreement with the king: and we humbly conceive, that the motion in parliament, December 13, 1699, for an address to the king to remove the then bishop of Salisbury, [Burnet] from being his preceptor, can be of no 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, [1 Rushw. 86,] said to be made by king James the first concerning the match with Spain, which related to the nurture and education of the children of that marriage. It is not to the present question 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 all public treaties. The articles of the treaty are said in Rushworth [1 Rushw. 85,] to be stiled by the cardinals, Propositions 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 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 his judges, that father, that the ten years of the education of any one single person, that should apply to the the children which 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 his 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 had heard a learned cluded from the voluntary engagement of the serjeant at law, who by command of his royal prince, in favour of a marriage so much desired highness had 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 Bri tain, then lord chief justice of the court of King's-bench; sir John Pratt, knight, now lord chief justice of the said court of King'sbench, then one of the justices of the said court; sir Peter King, knight, lord chief justice of the court of Common Pleas ; sir Thomas Bury, knight, lord chief baron of the court of Exchequer; sir Littleton Powys, knight, one other of the justices of the court of King'sbench; sir John Blencowe, knight, Robert Tracey and Robert Dormer, esquires, justices of the said court of Common Pleas; sir James Mountague, knight, one of the barons of the court of Exchequer; and sir John Fortescue Aland, knight, now one of the justices of the court of King's-bench, and then one of the barons of the court of Exchequer, were of opinion:

There was indeed an article in the treaty with France, [17 Rymer, 676,] 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 13; 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 the treaty 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. [17 Rymer, 679.]

Thus have we humbly laid before your majesty, what we have to offer in relation to the books and precedents that have fallen under That the education and care of the persons our consideration upon this head, which we of his majesty's grandchildren now in Engcannot think sufficient to infer a prerogative inland, and of prince Frederic, eldest son of his your majesty, as king of this realm, in the

6

royal highness the prince of Wales, when his

care and education of your majesty's grand-majesty shall think fit to cause him to come children, 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. RO. PRICE, R. EYRE.

These Opinions of the Judges his majesty was pleased some time after to communicate to his privy council in manner following: At the Court at Kensington, the 1st of July, 1718. Present, the King's most Excellent Majesty in Council.

to England, and the ordering the place of their abode, and appointing their governors and governesses, and other instructors, atten. 'dants and servants, and the care and approbation of their marriages when grown up, belong of right to his majesty, as king of this 'realm.'

And that Robert Price, esquire, one of the barons of the court of Exchequer, and sir Robert Eyre, knight, then one of the justices of the aforesaid court of King's-bench, and chancellor of his royal highness the prince of Wales, were of opinion:

That the education and care of the persons of his majesty's grandchildren, the ordering the place of their abode, and appointing their

His majesty was this day pleased to communicate to the lords of his most honourable privygovernors and governesses, and other instruccouncil, that his royal pleasure had some time since been signified to his judges, by the late lord chancellor Cowper, that they should give their opinion upon the question just before

⚫tors, attendants and servants, belong to the prince their father; but that the care and approbation of their marriages, when grown up, belong to his majesty, as king of this realm.' -Adding, That in what concerned the marAnd that his majesty, having afterwards riage, they desired to be understood as speakbeen informed that some of the counsel of hising of a care and approbation not exclusive of royal highness the prince of Wales expressed a

mentioned.

the prince their father.'

457. The Trials of Major STEDE BONNET, and Thirty-three others, at the Court of Vice-Admiralty, at Charles-Town, in SouthCarolina, for Piracy:* 5 GEORGE I. a. D. 1718.