1756. BARBEYRAC ILLUSTRATED. 585 Na late converfation upon a passage in Puffendorff's Law of Nature and NaA tions, I found it very difficult to make the company understand the author, or the neceffity of the amendment made by Barbeyrac, and fuggefted to him by Mr. Carmichael, profeffor at Glasgow, therefore I drew up what follows, which I hope you will find room for in your most ufeful as well as amufing Magazine, as it may be of fervice to thofe who incline to read that excellent performance, which no gentleman ought to neglect. fafety of our country render it necessary to have foldiers or failors, and our go. vernment cannot find a fufficient number that will enter voluntarily. The only reason why preffing for failors has been more frequent and more complained of than preffing for foldiers, is, because from the fituation of this country, the former becomes much oftener neceffary, and thofe that are liable to be preffed into the fea fervice have generally a much better character than those that are liable to be preffed into the land fervice; because we have not for many years been obliged to make any man liable to be preffed into the latter, but fuch as have fomething of the vagabond in their character. But if B an invafion, or other fuch danger, should oblige us to raife a numerous army, we fhould be under a neceffity to prefs men of a better character into the land fervice, or to oblige all the men fit for the fervice to draw lots, and even in that cafe, thofe upon whom the lot fell, muft be preffed, if they refused to serve volun- C tarily. From hence I am convinced, that it is impoffible to prevent the neceffity of preffing, according to the prefent method, for the fea fervice, any other way than by enabling the government to have always not only a lift of all the men in the British dominions fit for that fervice, but alfo a knowledge where to call for them, and a power to compel all of them to D ferve in their turn; and it has been hitherto thought, that this would be attended with greater inconveniences than the method we now have of providing for the fea fervice. Whilft we pursue this method, there is no way for leffening the inconveniences attending it, but by good ufage, and other advantages, to induce as many as poffible to qualify themfelves for the fea fervice, and to enter voluntarily when the government has occafron for their fervice; and no law can be, I think, more effectual for this purpose, than that which was paffed in the year 1739. E Therefore, Sir, if any amendments can agree to them, when it becomes conve- occafion of the war which would neceffa- [This JOURNAL to be continued is our next, I am, &c. BARBEYRAC'S PUFFENDORFF, p. 437. Note 2. Book iv. Chap. xi. Section 17. Fhere faid, it is neceffary to ftate the cafe. Suppofe then that A. being pof feffed of an eftate, and having a fon B. by his first marriage, takes to his fecond wife the widow C. who is likewife poffeffed of an estate in her own right, and has a fon D. by her first husband; and fuppofe that A. and C. after their intermarriage have a fon E. and by their industry or ceconomy acquire a new eftate. OR comprehending clearly what is Upon the death of A. and C. the hufband's fon B. and their fon E. would. fucceed equally to the eftate which A. was poffeifed of at the time of his fecond marriage; and the wife's fon D. and their fon E. would fucceed equally to the estate which C. was poffeffed of at the time of her fecond marriage. Then as to the new acquired eftate, more than two-thirds of it ought to be divided equally between B. and E. because the husband is supposed to have contributed. more than the wife towards acquiring it; but as Puffendorff allows, that the wife may have contributed fomething, therefore her fon D. ought to have some small thare of this new acquired eftate, Thefe eftates being thus duly divided among the children, let us fuppofe, that E. dies inteftate, and without children, B. would without doubt fucceed to E.'s fhare of the eftate which their father was poffeffed of at the time of his fecond marriage, and D. would fucceed to E.'s fhare of the estate which their mother was poffeffed of at the time of her fecond marriage. But as to E.'s fhare of the new eftate, the question is, whether it hall go to B. bis frater confanguineus, [paternal brother,] or to D. bis frater uterinus [maternal brother;] and Puffendorff decides, that it shall be divided between them, but fo as that B. the paternal 4 E 586 PURGING in the GOUT. ternal brother, may have the greatest fhare, because, as before mentioned, the father is fuppofed to have contributed more than the wife towards acquiring this new eftate. This in fpeculation is a very rational decifion, but in practice no diftinction is made, between the eftate a man is pof- A felled of, at the time of his fecond marriage, and the eftate he afterwards acquires, both being fuppofed to belong folely to him, becaufe of the difputes that might otherwife be occafioned; therefore in this cafe D. could not, upon the death of A. and C. claim any share of the new acquired eftate; nor could he, upon the death of E. claim any thing В more but that part of their mother C.'s eftate, which E. had fucceeded to upon her death. To the AUTHOR of the LONDON I SIR, Dec. relief, indeed from the very first adminiftrations; and, in a fhort time, the difcharges being very plentiful, the fymptoms vanished, and he recovered his limbs, ftrength, and health. As to the latter, he told me, he had not found himself fo lightfome, ferene, and chearful for fome years. It is certain, that there cannot be a cure of any disease, or relief of any parts, in a manner that is right and rational, that is by a dextrous and artful removal of the common cause of ills to the body, but the whole muft have relief and benefit from it. Sir Richard Steele, finding himself easy and well, and having been before, several months confined by that fevere gout, left off the medicines fomewhat too foon, and before the vitiated principles were fufficiently cleared off, not pursuing them till his limbs were wholly freed and refcued. But, notwithstanding that he eat very high, and frequently drank very hard, he enjoyed better health than forCmerly, and never had any fit of the gout afterwards: Only fometimes, after a great excefs, his limbs became heavy, clumfy, and ftiff; but never to fuch degree, as not in a little while to come again to themfelves. July 16, 1720, being, after a great entertainment, more unwieldly and heavy, and his legs and arms more ftiff D and helpless than ever, fince the great fit before mentioned, I directed FIND you have, in your laft Magazine, given an extra from the late Dr. Woodward's Select Cafes and Confultations in Phyfick, from which book it plainly appears, that tho' the doctor's method of practice was very different from that of most of his cotemporaries, yet in many cafes he met with furpriting fuccefs ; and the prefent Mr. Ward's fuccefs is a new proof of what may be done by strong and plentiful evacuations; for if it be true, as Dr. Woodward affirms, that the morbid matter may, by proper vomits and purges, be made to return from all parts of the body into the ftomach and guts, and from thence be thrown out of the body, either upwards or downwards, common fenfe may tell us, that E fuch evacuations must in many cafes be attended with great benefit to the patient. Whether this may be the cafe with respect to the gout feems as yet to be a question. The experiment may perhaps be dangerous; but the following cafe related in the fame book is fo remarkable, that, I think, you should give it a place in your ufeful Magazine. 1 am, &c. Sir RICHARD STEELE, 1720. The Gour. Purging in it. Calomel, Scammon, p. et Pulv. Diafenn. aaf. Syr. Ref. q. f. m. f. Bol. to be taken next morning, with a clyfter half an hour after it. This worked quickly, freely, and much, with great discharge of wind. He found relief from the very beginning of the operation; and before dinner his limbs were become eafy, pliant, and free. This is one of many inftances that might be produced of a return of vitious matter back into the ftomach and guts, even during the very operation of a purge, where the medicine is and there is fuch an ordination of F proper, things, that the discharge be fucceffive, free, wind and all obstacles removed; and, by that means, the contents of the guts thrown freely down, and all paffage thence into the blood prevented for the time. Sir Richard Steele was very fenfible of the reasons of this fuccefs; and made fome very pertinent reflections on thofe, who, not being apprized of these reafons, and giving aloetic and other improper purges, that are indeed of the nature of the morbid matter, or for want of due precaution to render the operation free and cafy, inftead of relieving the HE had had the gout, by fits, for years, it continually growing upon him; and in the winter of 1715, and the following fpring, the fit was more fevere than ever before, and continued for G feveral months. It was in this that I was first confulted. I found him in great diftrefs and pain, wholly difabled and helplefs. Upon ufe of the unctuous medicines, with purges and clyfters at proper intervals, he found great and speedy gout 1756. OPINION in the PRINCE'S CASE. gout, inerease it, or perhaps bring on the Conclufion of Mr. Baron PRICE's and Mr. PON the best fearch we have been A 587 his power, but in patris familias fui manet poteftate, mancipioque, which are the words of the laws of the XII tables; and it was manifeftly abfurd, that he should have others in his power, who was not in his own. This fervile condition of the fon to the father, which had ordinarily no end, till the father himself was pleafed by emancipation to put an end to it, being the fole foundation of the grandfather's right to the grandchildren, as well as to every thing elfe the father was poffeffed of: When this ftate of the father ceafed, the power of the grandfather neceffarily ceafed with it, and fo it is declared in Juftinian's Inftitutes, that if the fon was emanciBpated, and fet free from the power of his father, the children begotten after fuch emancipation are not in the power of the grandfather, but of the father. able to make, we can find but two books written by English lawyers, that can poffibly induce a contrary opinion,' (Bracton and Fleta.) Bracton treating de patria poteftate, fays, Qui ex filio tuo & ejus uxore nafcitur, i. e. Nepos tuus & neptis aque in tua poteftate funt, & pronepos & proneptis, & deinceps cæterit; and, In peteftate patrum funt filii qui nafcuntur in jufto & legitimo matrimonio, idem in nepotibus pronepotibus, quantum ad avos proavas patermos, which Fieta has alfo faid, in almost the fame words, and which both have taken from Juftinian's Inftitutes. This fhews 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 feveral treatifes upon the plan of the imperial laws; and it is as well known, that thofe laws never obtained here, thro' the general averfion this nation (always zealous of its liberties) had towards them; and accordingly, wherever these writers differ from our year-books, and authentick reports, D they are not allowed to be of authority; and as to this part of the Roman law in particular, which relates to the patria poteftas, it is acknowledged by all, even by Juftinian himself, that it was fo peculiar to the Romans, that it never obtained among any other people whatsoever. § Fus autem poteftatis quod in liberos babemus, proprium eft civium Romanorum; nulli enim funt bomines, qui talem in liberos babeant poteftatem, qualem nos habemus. But to give a more particular answer to thefe paffages, which are the only ones that have the leaft appearance of law, it is evident they cannot be made to affect the cafe of the royal family, by any other construction than what will equally affect every other family in England. But that from these paffages nothing can be concluded, to determine the extent of the patria poteftas in any family here, is clear from the reafon on which the power of the grandfather among the Romans is founded. Now the reafon of the Roman law, why children should not be in the power of the father, but of the grandfather, exclufive of the father, was, becaufe the father himself was not fui juris, and in Bratton, l. 1. c. 9. 3. **Quod fi poft emancipationem conceptus fuerit, patris fui emancipati poteftati fubjicitur. But not to inlift, that by the laws of England, no father has fuch a power over his children, even in their minority, C as the Roman law gave; it is undeniable, that with us marriage hath the nature of a true and proper emancipation of the perfon of the fon, and by confequence, even upon the grounds of the Roman law, the grandfather with us can have no right to the children of the fon, but the father only. If therefore nothing otherwife appears to diftinguish the cafe of the royal family, there can be no foundation upon which any prerogative can be established in the inftance now in question; and we humbly apprehend, that the only precedents which can be alledged to fupport fuch a prerogative when confidered: The first, in 22 Henry III. entitled in Rymer ††, De Alianora filin Galfridi, &c. is only a declaration under the great feal, that William Talbot had furrendered to king Henry III. the castle of Gloucester, et Alianoram confanguineam fuam fanam et 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 furrendered her and her estate safe again to the king. The other precedent 11, which is in 1 Henry IV. is a grant of an annual fum of 500 marks to the prince of Wales, for the expence of the maintenance of Edmund earl of March, and his G brother, fo long as they should remain in the prince's cuftody, to whom they had been committed the February before. F As to this it appears by the hiftory and records of thofe times, that Roger de Mortimer, their father, was killed in 4 E 2 Ireland Fleta, l. 1. c. 6. Justin. 1. 1. ** Justin. l. 1. tit. 12. §. 9. + Ibid, §. 4, fuftin. 1. 1. tit. 9. §. 2. 588 CASES of feveral young PRINCES. Ireland 22 Richard II. and that their mo- B If any ftrefs can be laid upon printed history, the cafe of Richard, fon to Edward the Black Prince, will be an inftance against this power fuppofed to be lodged by law in the grandfather; he, being a minor, lived with his father as part of his family, and his father appointed C his governor, of which we have this relation in Hollingshead, that Sir Simon Burlie, kinfman 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 fuch credit and favour with him, that afterwards, when his fon Richard, of Bourdeaux, was born, the prince, for fpecial trust and confidence which he had in the faid Simon Burlie, committed the governance and education of his fon Richard to him; and after the death of the Black Prince, it appears by two very remarkable inflances in our hiftory, that Richard continued with his mother till the death of his grandfather, king Edward III. The younger children of Edward IV. lived with their mother, whose wardship fhe declared the claimed by the advice of learned counsel 1, according to the relation given us by Sir Thomas More, afterwards lord chancellor of England, in his Hiftory of thofe Times; nor was it then pretended, that the king had any right to their education, or the care of their perfons; and altho' the queen was prevailed upon to part with her fon Richard, duke of York, her dauhgters remained in her cuftody till the hertelf was contented to fend them to court. E F As to the education of their late majefties queen Mary and queen Anne, dur- G ing their minorities, it does not appear to us, that their uncle, king Charles II. appointed their governeffes and fervants, or any one person that attended them and we are not enough acquainted with 3 Holl. 414. alfingham, 192. * Rub. 86. Dec. the circumstances of the duke of Gloucefter's cafe to make the proper remarks, but it feems to have been by agreement with the king; and we humbly conceive, that the motion in parliament, Dec. 13, 1699, for an addrefs to the king, to rebeing his preceptor, can be of no weight move the then bishop of Salisbury || from in this matter, fince it paffed in the negative. It is poffible that fomething may be inferred in favour of this prerogative, from that article of the treaty, faid 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 prefent queftion to confider, whether there ever was fuch 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 publick treaties; the articles of the treaty are faid in Rushworth for the right augmentation and weal of to be filed by the cardinals, propofitions the Roman catholick religion, and in truth almof every article is fo derogatory to the fupremacy of the crown, and the ftatutes made for the establishment and fecurity of the church of England, that it could have carried no fort of authority with it in point of law, even tho' it had the great feal, and not from the report of appeared, in a regular manner, under hiftorians only. Nor can the cath faid 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 fhould be born of this marriage, with the Infanta, accorded in be lengthened to the term of twelve one of the articles of this treaty, might years, as the prince defired, 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 difpute; and had it been so, nothing can be concluded from the voluntary engagement of the prince, in favour of a marriage fo much defired by himself, as well as by his father, wherein the queftion of this right was never the fubject of debate. There was indeed an article in the treaty with France +†, upon the marriage of king Charles the First with princefs that the children of that marriage fhould Henrietta Maria; whereby it was agreed, 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 acceffion to the crown, and not with king James his father king † 2 Brady, 307. x Kennet, 233. Stow, 274 3 Tyrrel, 771. tt 17 Bymer, 676. 1 1756. ENCOURAGEMENTS propofed for BRAVERY. 589 king James, it is true, fent over the earls A Thus have we humbly laid before your All which is most humbly fubmitted To the AUTHOR of the LONDON SIR, tion of fome honorary order, would be a commendable imitation of their policy in that refpect. Several nations have pursued this plan, and why may not we? The French have the order of St. Louis, which is conferred on fubaltern as well as commanding officers; and I am convinced, the defire of attaining to that honour, is one of the greatest excitements to that difinterefted glory they fo much boaft of. This mark of diftinction confifts only of a fmall enameled crofs pendant by a rib-' bon to the button-hole of their coat, and is beftowed on the land and fea officers indifferently: Yet, I believe, there are none of thofe who are honoured with it, that do not pique themfelves as much on the poffeffion of that bauble, as thofe who are diftinguished here by a star and garter, It is not only a reward for their paft, but also an encouragement for their fu ture condu&; and I have heard an offiCcer (who was of that order, and of an advanced age) affert, that he thought himfelf amply recompenfed by it, for a life fpent in the fervice of his king. A If we trace the original of honorary ward of merit. Was not every individual who fignalized himself, animated with the fame ambition as his commander, fince he was thereby entitled to a mark of honour equal to a triumph? The republick was at no expence in conferring these rewards, which in reality had no exiftence, but in idea. If this trifling diftinction had fo great an effect in former ages, why should we doubt of their efficacy now? We are, I believe, as brave a people as the Greeks and Romans were, and yet, an institu F Cou Now, Sir, if we feriously confider the many advantages that might arife from an inftitution of this nature, why may we not follow an example that must be productive of confequences beneficial to us? I confefs with a great deal of fatiffaction, that our military and naval officers in general need no fpur to honour, yet there are many languid fouls amongst them, whom the charms of a pendant bauble would fire with emulation. rage is natural to the English; but there are fome, tho' in an inferior station, who fignalize themselves more than others; how are these rewarded? Perhaps many are preferred; they cannot all be fo, there cannot be always vacancies, or if there are, the number of those who merit preferment, is generally greater than can be provided for: Wherefore, if fuch an order was inftituted, and bestowed on those who really deferved it, it would more firmly attach them to the fervice of their country, and be a pleafing monument of their courage. Would not one officer's being dignified with it, raise a spirit in others of afpiring to the fame mark of diftin&tion? And must not the confequences of fuch an emulation, be advantageous to the publick, as well as gloriGous to individuals? Indeed, not only glorious, but ferviceable, as it would recommend them to preferment. We certainly are a people, who entertain as high ideas of honour as the French, and why may we not propofe to ourselves 17 Rymer, 679 the |