June 7, 1717. The earl of Clarendon reported from the Committee, appointed to search precedents, and report what is further proper to be done, in order to the Trial of the earl of Oxford, "That they had accordingly inspected precedents; and offer the rules and methods following to the consideration of the House; viz. "That an Address be presented to his majesty, that he will be pleased to give order, that such guards do attend, during the Trial of Robert earl of Oxford and earl Mortimer, upon the Impeachment exhibited against him by the House of Commons, as hath been usual in cases of trials. "That, on the day of trial, the whole body of the House of Peers meet here, in their robes, at nine o'clock in the morning; and that their lordships do go down into Westminster-hall, in their robes, in order to the Trial of the said Earl. "That the same method be observed, in going into Westminster-hall, as was on going thither, upon the 15th of March, 1715, to the Trial of the earl of Wintoun. "That the Articles of Impeachment exhibited by the House of Commons against the earl of Oxford, and the Answer of the said Earl, as also the Replication of the Commons thereunto, be read, as soon as the said Earl is brought to the bar. "That the Lord High Steward be directed to acquaint the said earl of Oxford, and all other persons who may have occasion to speak to the Court, That they address themselves to the Lords in general, and not to the Lord High Steward. "That the counsel assigned the said earl of Oxford may be present when he is at the bar, in order to be heard, touching any point or matter of law, if any such shall arise, upon the two Articles of Impeachment exhibited against the said Earl for High Treason, or either of them; but that the said Earl may be allowed to make his full Defence, by counsel, upon the Articles for High Crimes and Misdemeanors, as well to matters of fact, as to any point or matter of law which may arise thereon. "That the witnesses which shall be produced by the earl of Oxford, to be examined in bis Defence, as well to the two Articles exbibited against him for High Treasou, as to the other Articles for High Crimes and Misde meanors, shail be examined upon oath; which oath shall be administered in like form as an oath was directed by this House to be administered to any witnesses who should be produced by the earl of Wintoun at his trial. "That every peer, when he gives his judg. ment, as well on the several Articles for High Crimes and Misdemeanors, as for the Articles for High Treason, shall declare his opinion, guilty, or not guilty, upon his honour, laying his right hand upon bis breast. That the Lord Great Chamberlain be desired to take care that places behind the peers be kept for peeresses and their daughters. "That, during the said Trial, the avenues to this House be guarded; and care taken, that none be admitted but lords' servants, and the necessary attendants of this House. "That the lord mayor and sheriffs of the city of London, as also the deputy lieutenants and justices of peace for the county of Middlesex, and the justices of peace for the city and liberties of Westminster, be required to take care for the safe guarding of the gates of the said cities, and other necessary places within their several jurisdictions; thereby to prevent the unnecessary concourse of people resorting to Westminster, and preserving the peace, during the said Trial. That all the constables of Westminster be required to attend in the Palace-yards at Westminster, during the said Trial, to take care that all coaches whatsoever, when they have set down the persons they bring, be turned away through the Old Palace-yard, and so by Lindsey House, and from thence so that they can not by any way return through King-street until seven o'clock in the evening.* "That all the lords of this House, who have personally appeared, or will personally appear, in this House, before the Trial of the said earl of Oxford, in Westminster-hall, shall have seven tickets each delivered to him or them, by the Lord Great Chamberlain's servants, if he or they personally come for them to the prince's lodgings, near the House of Peers: and if any lord desires tickets for another lord, they are to be delivered, if two lords do say such lord, they believe, will personally appear before the said Trial.' "Which said rules and methods, resolved on by the Committee, were read by the clerk. "And the first Resolution being again read, viz. "That an Address be presented to his maJesty, That he will be pleased to order such guards to attend, during the Trial of the said Earl, as hath been usual in cases of trials. "The same was agreed to; and ordered to be presented to his majesty by the lords with white staves. "Then the four Resolutions next following were read a 2nd time, and severally agreed to. "And the next Resolution being also read a 2nd time; viz. "That the counsel assigned the said earl of Oxford may be present, when he is at the bar, in order to be heard, touching any point or matter of law, if any such shall arise, upon the two Articles of Impeachment exhibited against the said Earl for High Treason, or either of them; but that the said Earl may be allowed to make his full Defence, by counsel, upon the Articles for High Crimes and Misdemeanors, as well to matters of fact, as to any point or matter of law which may arise thereon." "The earl of Clarendon acquainted the House, That some doubt arising in the Com mittee, upon preparing and settling the same, by reason of the act of parliament in the 7th of king William, for regulating Trials in cases of Treason; and the Standing Order of this House, of the 28th of May, 1624, touching judicature, and the allowance of counsel in cases of moment; he was directed, by the said Committee, to inform the House thereof, as a matter worthy of their lordships' particular consideration. "Then the preamble of the said Act, and the said Standing Order of this House, being read: "It was proposed, to agree to the said Resolution. And the same being objected to: "It was proposed, as an amendment, to leave out these words; viz. 'to be heard, touching any point or matter of law, if any such 'shall arise, upon the two Articles of Impeach⚫ment exhibited against the said Earl for High Treason, or either of them; but'] And, after debate; "The question was put, Whether those words shall stand part of the said Resolution ? It was resolved in the affirmative. "Then the five following Resolutions were read, and severally agreed to. "And the next Resolution, for preventing the return of coaches through King-street, during the said Trial of the earl of Oxford, till five o'clock in the afternoon, being read: “It was agreed, to alter the time, by inserting, instead thereof, seven o'clock in the evening. And then the last Resolution was also 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. ["The following Case is chiefly taken from the Reports of lord Fortescue, who was a judge of the Common- Pleas at the time the opinion of all the judges was taken upon it. Fortesc. Rep. 401. The only addition we make to lord Fortescue's state of the arguments is to supply a considerable deficiency in the copy of the written opinion given by the two dissenting judges. What we have introduced for this purpose is the opinion of the two dissenting judges at length, instead of the imperfect copy of it in lord Fortescue. This part is taken from a book entitled the Life of Judge Price.* In lord Fortescue's Report, the Case is called The grand Opinion for the prerogative concerning the royal family.' "Since the Case we now present to the reader, one part of the subject of it has undergone a parliamentary discussion, the occasion of which was the act passed in 1772, for better regulating the marriages of the royal family. 12 G. 3, c. 11. The preamble to that act contains a declaration, that the kings of this realm have ever been intrusted with the care and approbation of such marriages.' The generality of this recital, together with the restraints introduced to guard the descendants of George the second from improper marriages, caused much debate in parliament; both on the ancient law and *See in vol. 12, p. 200, an account of the Trial of the Seven Bishops in a letter from Mr. Robert Price to the duke of Beaufort. It may be worth notice, that in the House of Lords, the learned and pious Lowth, then bishop of Oxford, who was much attached to the king, not only voted but spoke against this Bill as repuguant to the precepts of morality the policy of the new regulation concerning this important subject. In the House of Lords two protests were signed against passing the act; and these will enable the reader to judge, what were the principal objections to it. See the History and State Papers in the Annual Register for 1772, pp. 232, et seq. and Almon's Parl. Deb. for the same year. Whilst the act was under consideration of the Lords, they consulted the judges on the extent of the prerogative of the crown in respect to marriages of the royal family; who concurred in opinion, that the approbation of the marriages of the king's grand-children belonged to his majesty, and also the approbation of the marriage of the presumptive heir of the crown, in whatever degree related to the king; but confessed, that they could not precisely as and of religion. A very eminent member of that House, who at different periods of the present reign filled very high offices in the state, represented to me Lowth's speech as highly dignified, impressive and persuasive, and superior to that, which was upon the same occasion delivered by lord Chatham. This conscientious opposition lost not Lowth the royal favour, which he well deserved. In the year 1777, he was made bishop of Oxford; and in 1783 the archbishopric of Canterbury was offered to him. Some apparently groundless doubts have been stated concerning the operation of the Royal Marriage Act upon marriages celebrated in foreign countries, and also concerning marriages with Papists celebrated under the provisions of the second clause of the statute. These topics are treated of in the recently published first volume of Mr. Madock's Life of Lord Sommers. Mr. Christian, (animadverting in a note to Black. Comm. book 1, ch. 4, vol. 1, p. 225) upon the case in the text, says, "The authorities and arguments of the two dissenting judges, Price and Eyre, are so full and cogent, that if this question had arisen before the judges were independent of the crown, one would have been inclined to have suspected the sincerity of the other ten, and the authority of the decision." certain, to what other branches of the royal family this prerogative extended. Besides the instances of the crown's interposition noticed in the following case, our late most distinguished commentator on the law of England refers to many others, which he arranges according to the degrees of relationship. 1 Blackst. Comment. 8th edit. 225. See, also, the Case of the countess of Shrewsbury, ante, vol. 2, p. 769."] "Whoever consults the Case, referred to the Judges by George the 1st upon the question, whether the grandfather being king, or the father being only heir apparent, hath a right to take care of the education of the royal children, will find that the material precedents are too few in number to settle that very important point," Barrington, Obs, on 1 Ric. 2. Mr. Barrington was led to this observation by consideration of the uncertainty in our law, respecting the appointment of a protector, guardian or regent for the realm, and for a minor king or queen. Other incidents to the office of protector, guardian, or regent, seem to be equally unsettled by the common law, or by any fundamental statute. See Blackst. Comm. book 1, chap. 7, vol. 1, p. 248. Nor are these the only important points of constitutional law to which this observation is applicable. In the years, 1788, 1789, great difference of opinion prevailed among the most eminent lawyers, as well as statesmen, as to the mode of supplying the executive power in cases of delirium, or other such incapacity of the king. (It is to be hoped, that Mr. Hargrave will incorporate into his Jurisconsult Exercitations,' now in course of publication,) the valuable tract, which he published, under the title of Brief Deductions,' &c. as to this question.) In like manner, I apprehend it is still left unsettled, how the kingly office should be executed, or the executive power supplied, upon the death of a king leaving kindred, whose right of succession might be defeated by birth of a child, who at the time of such death was in ' ventre sa mere.'* Mr. Burke, in his Reflections on the French Revolution, has with admirable eloquence exposed the folly of previously subjecting every political contingency to the generalities of abstract speculation. On the other hand, the inconvenience of leaving great questions to be determined in the moment of emergency is obvious. * In the debate in the House of Commons, upon the Address in answer to the king's Message (Nov. 11th, 1680) Mr. Trenchard says, "If a king die, leaving a queen, the next heir is presently proclaimed, to prevent an interregnum; though there be a possibility of the queen's being with child, to whom the right should in the first place belong." With respect to the commissions of the judges, and other particulars respecting their dependence upon the crown, during a considerable portion of the seventeenth century, see at vol. 12, p. 257, some interesting information, collected by the very learned vindicator of Mr. Fox's History. As to the succession of some of the Judges, during the last years of Charles the 2d's reigu, Mr. East has inserted the following particulars in a Note to p. 105, of the 14th volume of his Reports: "Sir Francis Pemberton was Chief Justice of the Common Pleas at the time of Lord Russel's trial at the Old Bailey, on the 13th of July, 1683, and was succeeded by sir Thomas Jones in the September following. A memorandum, in p. 10, (of the second series of paging) of the Great Quo Warranto case against the city of London, says that when the demurrer was joined, viz. Mich. Term, 34 Car. 2, (A. D. 1682,) Mr. Serj. Pemberton was Chief Justice of the King's-bench, but before Hilary Term, that it came to be argued, he was removed and made Chief Justice of the Common Pleas, and sir Edmund Saunders was made Chief Justice of the King's-bench. And it appears from p. 119, (the last series of paging) of the same book, that judgment was given in Trinity Term, 35 Car. 2, and that the Lord Chief Justice Saunders died either the day on which judgment was given, or the next day. Amongst the rolls in the Crown-office of the King's-bench, I found writs tested Edmund Saunders in Hilary Term, 34 and 35 Car. 2. Amongst others there is one so tested on the 29th of January, 34 Car. 2, and another on the 12th of Feb. 35 Car. 2, the commencement of the reign being on the 50th of January. The writs continue tested by Saunders into Trinity Term, 35 Car. 2; one so tested was of the 8th of June, 35 Car. 2. But on the 27th of June, 35 Car. 2, they are tested Thomas Jones, who was then the senior puisne judge of the court, in whose name writs are tested on the vacancy of the chief justiceship. From the number of writs tested on the 27th of June, it seems as if it was the last day of Trinity Term in that year. The first writ I found upon the roll tested George Jefferies, as chief justice, was of the date of the 23rd of October, 95 Car. 2. [N. B. Michaelmas Term bas since been contracted by st. 24 G. 2, c. 48.] The next is of the 3rd of November, though Rapin (vol. 2, p. 735,) says, that sir George Jefferies was appointed chief justice of the King's-bench, in December, 1683. The Chronica Judicialia state, that sir Francis Pemberton was appointed chief justice of the Common Pleas, on the 22nd of January, 1682; which as the civil year then began in March, answers to the day before Hilary Term, 34 and 35 Car. 2; and in Trinity Term following, (i. e. Tr. 35 Car. 2,) which was just before the trial of lord Russell, it appears by the book of fines in the Common Pleas, that sir Francis Pemberton, as chief justice, took acknowledgments of fines in that term. The Chronica Judicialia mention the appointment of sir Thomas Jones, as lord chief justice of that court, on the 29th of September, 1683. See, too, in pp. 264, 265, of vol. 12, the Resolutions of the Commons in 1680. contemplation of his power to displace them upon his accession, or to conciliate his favour by indications of a disposition readily to yield to the will and pleasure of the prince, for the time being, on the throne.* To remedy this inconvenience, his present majesty, king George the 3rd, in the commencement of his reign, (graciously declaring, "That he looked upon the independence and uprightness of the judges, as essential to the impartial administration of justice; as one of the best securities of the rights and liberties of his subjects; and as most conducive to the honour of the crown;") was pleased to recommend, that the judges should be continued in their offices during their good behaviour, notwithstanding any demise of the crown; which was accordingly enacted by stat. 1 George 3, c. 23.] THE judges met on the 22nd of January in Hilary term in the fourth year of his late majesty king George, and in the year of our Lord 1718, at the right honourable the lord Parker's chambers in Serjeant's-Inn in Fleet-street, he being then lord chief justice of England, (afterwards lord chancellor of Great Britain) in pursuance of the then lord chancellor Cowper's letter from the king. letter was read, which was to signify the king's The judges being met, the chancellor's Bishop Burnet, in relating the history of the year 1692, tells us, that " Among the bills that were offered to the king, at the end of the session, one was to secure the judges' salaries; and to put it out of the king's power to stop them. The judges had their commission during their good behaviour; yet their salaries were not so secured to 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 representnion upon the following question,† viz. "Whether the education, and the care of ed to him, by some of the judges themselves, that it was not fit they should be out of all the persons of his majesty's grand-children, dependence on the court; though it did not eldest son of his royal bighness the prince of now in England, and of prince Frederick, appear, that there was any hurt in making Wales, when his majesty shall think fit to judges, in all respects, free and indepen-cause him to come into England, and the or dent." dering the place of their abode, and appointing their governors, governesses and other instructors, attendants and servants, and the care and * Yet in the trial (April 30th, 1792,) of an Mr. Horne Tooke, the defendant said, "I do not believe the dependence of the judges on the crown was so great formerly as at present, I believe the judges then were less dependent on the crown, and more dependent on the people, than they are at this hour." By stat. 13 W. 3, c. 2, it is enacted, That the commissions of the judges shall be made, 'quamdiu se bene gesserint,' and their salaries ascertained and established: but that it 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 Blackst. Comm. 267.) By the operation, therefore, of this statute, those niost important and reverend magistrates are, in the exercise of their functions, exempted from all influence, arising from the apprehension that they may be removed from their offices by the arbitrary authority of the prince upon the throne, (as to which see Mr. Serjeant Heywood's Vindication as already cited. See, too, in particular, Whitelocke's anecdote relative to the conduct of judge Croke in the Ship-money Case.) Still, however, it was held, that their commissions became vacant upon the demise of the crown, until by 1 Ann. stat. 1, c. 8, they were continued for six months after such event: so that upon a prospect of the approaching termination of a reign, the judges were liable to be seduced into disingenuous compliances with the wishes of the apparent successor, by the Of the popularity to be sought by a judge, lord Mansfield said something in his speech (see it in this Collection,) June 8, 1768, in Wilkes's Case; and what lord Mansfield then said, Mr. Horne Tooke afterwards made the subject of some contemptuous animadversion. See, in this Collection, his speech on Nov. 24, 1777, when he came to receive the judgment of the court of King's-bench, upon his conviction for publishing a libel against the king's troops. As to the king's right extrajudicially to demand the opinions of the judges on questions in which the crown is interested, See Mr. Hargrave's note (5) to Co. Lit. 110, a. approbation of their marriages, when grown up, do belong of right to his majesty, as king of this realm, or not." Soon after the judges were met, they had a message sent them, from his royal highness George, then prince of Wales, now king of Great Britain, by bis secretary Mr. Molineux, now deceased, and by his own solicitor-general, Mr. Carter, since sir Lawrence Carter, a baron of the Exchequer, to this effect: that his royal highness the prince of Wales, understanding that a question relating to his right of guardianship to his children was before them, desired, that before any determination was had upon it, they would give leave that he might be heard by his counsel concerning the same, and then the messengers withdrew. After which the judges having consulted together about this Message, agreed on this answer, viz. "We have considered of what you have been pleased to propose from his royal highness the prince of Wales, and we are all of opinion, that in cases wherein our advice is required by his majesty, we cannot hear counsel without his majesty's leave." The same messengers being called in again, the said answer was given to them by the lord chief justice Parker in the name of all the judges. Thereupon the judges agreed to acquaint the lord chancellor with this message, and with the answer, in order to acquaint the king. Immediately after this, without loss of time, the judges entered on the consideration of the question referred to them. Just. Blencow. I do not see, my lords, but marriage takes in the whole question, but let us debate the whole matter minutely, and give our opinions seriatim. Just. Dormer. For the king. What is very material to this purpose, is, the Marriage Articles of Car. 1, then prince of Wales, with the infanta of Spain, in the life-time of his father, king James 1, under the great seal. One of those Articles relates to the education of the issue of that marriage, which was, that the sons and daughters, born of that marriage, should be under the care, and brought up by the infanta of Spain until the age of ten years. Thereupon the prince himself says, if they thought that term was not enough, that he would intercede with his father, the king, that the ten years of education with the infanta might be lengthened to twelve years: and ways further, and I promise, and freely, and of mine own accord swear, if it happen that the intire power of disposing this matter be devolved to me, I will approve of the said term of twelve years. And these Articles were sworn to by both king and prince. 1 Rushworth 86, 87. Chief Justice King, afterwards lord chancellor, quoted Rymer, 4 tom. fol. 605, 608. 8 Edw. 3, and fol. 620 and 624. Lord Parker, Chief Justice. The case of H. 3, is very material. The king's sister Joan VOL. XV. was abroad, and with her own mother in France, and yet the king here in England made the match with Alexander king of Scotland. The king says, "dabimus in uxorem, et nos et concilium nostrum fideliter laborabimus ad eam habendam." Rymer, 1 tom. p. 240, 356. 4 H. 3, anno 1220. "Et si forte eam habere non poterimus, dabimus ei in uxorem Isabellam junior' sororem nostram." And many other strong expressions there are, as "maritabimus et concessimus in uxorem ; laborabimus per nos et amicos nostros." Rymer, vol. 1, 241, 407. Madox Tit. Aid 412. H. 3 had aid to marry his sister. 12 Co. Rep. 29, 30. The king of Sweden was proposed to the lady Elizabeth, (afterwards queen Elizabeth) for marriage; but she refused, because it was not first communicated to her majesty the queen. Cotton's Record, 326. There is also the famous case of the countess of Shrewsbury, and she was sent to the Tower, and imprisoned there for a high misdemeanor and great contempt, in being privy to the flight of lady Arabella, who being of the blood royal, had married one Mr. Seymour without the consent of the king, and he was likewise imprisoned in the Tower for that marriage.* Co. Rep. 12, p. 94. In the case of the duke of York, being to be married to the duchess of Modena, there was an Address of the House of Commons to the king, that he might not be married to that princess. The king's Answer (which was remarkable) was, that the marriage was completed, and by his royal authority and consent. See lord Clarendon's History. About December, 1699, an Address was moved for by the House of Commons to the king, to remove the then bishop of Salisbury from being preceptor to the duke of Gloucester, and it passed in the negative, which shews the parliament thought the power to be in the crown. Another instance is, the case of the earl of Marlborough. The king appointed him governor of the duke of Gloucester, as a mark of his qualifications for an employment of so great a trust, and as an instance of this prerogative. So in the case of the marriage of the princess of Orange, it was made wholly by the king, against the father's consent. In Rymer, tom. 8, 698, there is a power given by the king to certain lords to treat of a marriage of the king's son, the prince of * See vol. 2, p. 1. Much very curious information and learning connected with this marriage is to be found in Mr. Hargrave's Preface to lord Hale's Treatise on the Jurisdiction of the Lords' House, and in Mr. Luders's Tract on the right of succession to the crown in the reign of queen Elizabeth: and there are some interesting Articles relative to it among the Harl, and Cotton MSS. in the British Museum. 4 H |