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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 approbation 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 and 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.

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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, 1.1, 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, bere, through the general 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 potestas, 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. I. 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 bere, is clear from the reason, on which the power of the grandfather among the Romans is founded.

This right of the father is said in our books, to be founded jure naturæ, 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, father, was, because the father himself was not 17.] though his seigneural right to the ward-sui juris, and in his power, but in patris famiship 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 10 every subject of this kingdom, who is a fa

lias 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 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, 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.]

appointed his governor, of which we have this relation in Hollingshead: [3 Hol. 414,] that sir Simon Burlie, 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, he 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 Barlie, committed the governance and education of his son Richard to him; and after the death of the Black Prince, it appears by two very remarkable instances in our history, that Richard con tinued with his mother till the death of his

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 chil-grandfather king Edward the 3rd. [2 Brady, dren 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 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 1 H. 4, is a grant of an annual sum of 500 marks to the prince of Wales for the expence 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. [8 Rymer 608.] As to this it appears by the history and records of those times, [Sandford's Gen. Hist. 226, 237,] 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

307. 1 Kennet, 33. Stow, 274. S 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 Tho mas More, afterwards lord chancellor of Eng. land, 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 berself 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 servants, 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, whe ther 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 eridence 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 establish ment 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 bad appeared in a regular manner, under the great

seal, and not from the reports 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 this 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.

desire to lay before the judges something relating to the question aforesaid, had further signified his royal pleasure to his judges, that any one single person, that should apply to the said judges for that purpose, should be admitted to lay before them what such person should have to offer from his royal highness. And that the judges had returned their answer to the said question; which answer his majesty was pleased to order to be read this day in council; and the same was read, whereby it appeared that the said judges had taken the said question into consideration, and had heard a learned serjeant at law, who by command of his royal highness had laid before them several things relating to the question aforesaid; and that ten of the judges, that is to say, Thomas lord Parker, now lord high chancellor of Great Britain, 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 Tho

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 kingmas Bury, knight, lord chief baron of the court 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 our 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. 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.

His majesty was this day pleased to communicate to the lords of his most honourable privy' council, 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 mentioned.

And that his majesty, having afterwards been informed that some of the counsel of his royal highness the prince of Wales expressed a

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:

• That the education and care of the persons ' of his majesty's grandchildren now in England, and of prince Frederic, eldest son of his royal highness the prince of Wales, when his 'majesty shall think fit to cause him to come '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 approba'tion of their marriages when grown up, be'long 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 governors and governesses, and other instructors, attendants and servants, belong to the 'prince their father; but that the care and ap

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probation of their marriages, when grown up, 'belong to his majesty, as king of this realm." -Adding, 'That in what concerned the marriage, they desired to be understood as speaking of a care and approbation not exclusive of 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.

Tuesday, Oct. 28, 1718.

The Court met according to appointment. PRESENT-Nicholas Trott, esq. Judge of the Vice-Admiralty, and Chief-Justice of the said Province of South-Carolina.

ASSISTANT JUDGES-George Logan, esq. Alexander Parris, esq. Philip Dawes, esq. Geo. Chicken, esq. Benjamin de la Conseillere, esq. Samuel Dean, esq. Edward Brailsford, gent. John Croft, gent. Capt. Arthur Loan, Capt. John Watkinson.

THE King's Commission to Nicholas Trott, esq. Judge of the Court of Vice-Admiralty, and the Commission in the name of the lord Palatine, and the rest of the lords proprietors, and testified by the Hon. Robert Johnson, esq. governor, and the rest of the lords deputies, for holding the Court of Admiralty Sessions, was openly read.

Then the grand jury was called, and twenty three of them were sworn; the names of which

are as followeth :

Michael Brewton, foreman; Robert Tradd, Andrew Allen, Peter Manigault, John Beauchamp, John Bullock, Thomas Barton, Anthony Matthews, Alexander Kinlock, Henry Perrineau, Paul Douxsaint, John Breton, John Bee, Daniel Gale, Thomas Loyde, Laurence Dennis, Elias Foisin, John Shepherd, John

* For Piracy, see in this Collection the Trials of Golding and others, vol. 12, p. 1269; of Green and others, vol. 14, p. 1199. Leach's Hawkins's Pl. Cr. book 1, c. 37.

"When states," says Mr. East, (Pleas of the Crown, chap. 17, § 4), "are in open hostilities, the plundering of an enemy is not piracy, but lawful capture. And before the stat. 11 & 12 Wm. 3, c. 7, which was levelled against commissions granted by James 2, after his abdication, none were deemed pirates who acted under the commission of any foreign power. But that statute enacts, that if any of his majesty's natural-born subjects or denizens of this kingdom, shall commit any piracy or robbery, or any act of hostility against others his majesty's subjects, upon the sea, under colour of any commission from any foreign prince or state, or pretence of authority from any person whatsoever; every such offender shall be deemed, adjudged, and taken to be a pirate, felon, and robber, and being duly convicted thereof, according to this Act, or that of Hen. 8, shall suffer death, and loss of lands, goods, and chattels, as pirates, &c. upon the seas, ought to suffer."

Simmons, George Peterson, Solomon Legare, Abraham Lesuir, and John Caywood.

Then the Judge of the Vice-Admiralty proceeded to give his Charge to the Grand Jury as followeth :

Gentlemen; We are here assembled to hold this Court of Admiralty-Sessions; and the duty of my office requires me to give in charge to you the things that you are to enquire of and to present.

In a former Admiralty-Charge, by way of preface or introduction to the particular crime of piracy, which will again now be brought before you;

I then shewed you, first, That the sea was given by God for the use of men, and is subject to dominion and property, as well as the land.

And then I particularly remarked to you, the sovereignty of the kings of England over the British seas.

I then proceeded, secondly, to shew you, be managed without laws; so there have been That as commerce and navigation could not always particular laws for the better ordering

and regulating marine affairs; with an historical account of those laws, and their origin.

Of all those matters I then spake largely and fully; and shall not now trouble you with any farther repetition of them.

But I shall now proceed, in the third place, to shew you, That there have been particular courts and judges appointed, to whose jurisdiction maritime causes do belong; and that in matters both civil and criminal.

And then I shall in particular shew you the constitution and jurisdiction of this Court of Admiralty Sessions.

And shall mention the crimes cognizable therein; and shall particularly enlarge upon the crime of piracy, that will now be brought before you.

Time will not permit me to speak of the several sorts of magistrates, to whose jurisdiction maritime affairs do belong, in the transmarine or foreign parts of the world: therefore I shall confine myself under this head, only to speak of the laws of England; by which the general jurisdiction in marine affairs is by the king as supreme, as well by sea as land, committed to the Lord High Admiral; who, besides his power over the navy, and the government over the seamen, hath a jurisdiction (a) civil and criminal in marine affairs, which are decided by his maritime judges in the Court of Admiralty, the chief of which is known by the stile of" Suprema Curiæ Admiralitatis Angliæ Jadex :" within whose cognizance, in right of the

(a) See Godolph. Admir. Juris. c. 4, p. 41.

i

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for Piracy.

done in great ships, being and hovering in the
main stream of great rivers, only beneath the
bridge of the same rivers nigh the sea.

And by the preamble to the statute of the

1233]
jurisdiction of the Admiralty by the sea laws,
and the laws and customs of the Admiralty of
England, are comprized all matters properly
maritime, and pertaining to navigation.
As to the antiquity of the office of Lord Ad-28 H. 8, it is declared, (i) that traitors, pi-
miral, and the Court of the (b) Admiralty, it
is sufficient to remark, that the thing itself that
signified that office, now known to us by the
stile of Lord High Admiral, and the jurisdiction
thereof, hath been in the kingdom of England
time out of mind.

The learned antiquary sir Henry Spelman, in his (c) Glossarium, and out of him (d) Dr. Godolphin gives us the Catalogues of the Ad Not mirals from the reign of king Henry 3. but that the office of Admiral is far more ancient: for the same learned antiquary saith, that he hath not in that Catalogue inserted Marthusius, that Princeps Nautarum, in king Edgar's time; uor those Tetrarchs of his navy; nor of those other commanders in chief in sea affairs, constituted by his successors kings of England; but of such only as in the ordinary way have been dignified with the said office.

The lord (e) Coke, in the first part of his Institutes, in honour of the Admiralty of England, saith, "That the jurisdiction of the Lord Admiral is very ancient, and long before the reign of Edward 3, as some have supposed, as may appear by the laws of Oleron, (so called, for that they were made by king Richard 1, when he was there) that there bad been an Admiral time out of mind, and by many other ancient records in the reigns of Henry 3, Edward 1, and Edward 2, is most manifest."

But the learned Selden (ƒ) in his notes upon Fortescue, tells us, That in an ancient manuscript "De l'Office de l'Admiralty," translated into Latin by one Thomas Rowghton, calling it "De Officio Admiralitatis," there are constitutions often mentioned touching the Admiralty of Henry 1, Richard 1, king John, and Edward 1, which shews the great antiquity of that Court.

rates, thieves, robbers, murderers, and confe-
derates upon the sea, were tried before the Ad-
miral, or his Lieutenant or Commissary, after
the course of the civil law.

But as appears further by the said preamble that it was found inconvenient to try those offenders before the admiral;

Therefore by the said statute this Court of Admiralty Sessions was appointed, whereby such offenders were to be tried according to the course of the common law, as if their offences were committed on land.

And now I shall proceed to speak of the And particucrimes cognizable in this Court. larly I shall enlarge upon the crime of piracy that will come before you.

The crimes cognizable in this Court, and within the jurisdiction of the same, by the express words of the statute (k) are all treasons, felonies, robberies, murders, and confederacies, committed in or upon the sea, or in any other haven, river, creek, or place where the admiral or admirals have or pretend to have power, authority, or jurisdiction.

There being only one of those crimes, viz. robbery or piracy, that will come before you, I shall omit the rest, and only speak to that: wherein I shall shew you the nature of the offence, and the heinousness thereof.

Now, as this is an offence that is destructive of all trade and commerce between nation and nation; so it is the interest of all sovereign princes to punish and suppress the same.

And the king of England (1) bath not only an empire and sovereignty over the British sea, but also an undoubted jurisdiction and power, in concurrency with other princes and states, for the punishment of all piracies and robberies at sea, in the most remote parts of the world.

Now as to the nature of the offence: piracy is a robbery committed upon the sea, and a pirate is a sea thief.

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And as to the jurisdiction of the Court of Admiralty, not to enter upon the disputes between the civilians and the common lawyers concerning the same; I shall now only observe to you, Indeed, the word ' pirata' as it derived from that it is allowed even by those statutes that were made purposely to restrain the jurisdic-egav, transire, à transeundo mare,' was antion of the Court of Admiralty, that that Court ciently taken in a good and honourable (m) (k) No. 3. ought to have cognizance of all things done (i) 28 H. 8, c. 15, p. 486. upon the main sea, (g) or coasts of the sea. (1) See sir Charles Hedges's charge at the And of the death (h) of a man, and of maihem Trial of Dawson, &c.

(b) Godolph. p. 24.

(c) Spelmanni Glossarium in voce Admiral, p. 14, usque ad p. 17.

(d) P. 215 to p. 230. And Justice's Laws
of the Sea, p. 284 to p. 289.

(e) Coke on Littl. 1. 3, c. 7, § 439, f. 260, b.
(f) Selden's Notes on Fortescue, p. 35, 36.
(g) 13 R. 2, c. 5, p. 173.

(h) See the Stat. 15 R. 2, c. 3, p. 180.
2 H. 4, c. 11, p. 193. 2 H. 5, c. 6, sect. 2,
Art. 36, p.
p. 214. And see 13 Car. 2, c. 9.
1174.
VOL. XV.

(m) "Pirata pro milite maritimo, àò ro uga, i. e. transire vel pervagari. Asser. Menevens. Epist, in vit. Ælfredi.-Rex Ælfredus jussit cymbas et galeas, i. e. longas naves, fabricari per regnum, ut navali prælio hostibus adventantibus obviaret. Impositisque piratis in illis, vias maris custodiendas commisit. Hoc sensu archipratam dici censco pro nautarum præfecto, vel quem hodie admirallum nuncupamus. In quadam enim Chartâ Regis Edgari Coenobio Glastoniensi confectâ, An. Dom. 971, testium unus, Martusin archipiratam se

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