nancies were sometimes conferred on the heir apparent during his infancy. Thus, the Black Prince, then duke of Cornwall, was left guardian of the realm in 1339, when he was but ten years old; and Richard his son, when still younger, in 1372, during Edward III.'s last expedition into France.

Such are the ancient precedents of provision being made for the temporary absence of the king from the realm. In modern times cases of this nature have been provided for by the appointment of lords justices under the great seal, whose office and authority are analogous to those of the ancient guardians of the kingdom.

And here we must not omit to notice the act 1 Vict. c. lxxii., intituled "An act to provide for the appointment of lords justices, in the case of the next successor to the crown being out of the realm at the time of the demise of her majesty." That important statute, which was framed according to a precedent in the reign of queen Anne, provides that in case of the successor being out of the kingdom at the demise of the queen, the archbishop of Canterbury, the lord chancellor or lord keeper, the lord high treasurer, the lord president, the lord privy seal, the lord high admiral, and the lord chief justice of the Queen's Bench for the time being, (or if any of those offices should be in commission, then the first commissioner of such respective commission,) shall be lords justices to administer the government in the name of the successor until his or her arrival. The successor is, on the other hand, empowered to appoint by three instruments, close sealed up (and alterable at pleasure) during the queen's lifetime, any number of natural-born subjects to act as lords justices, together with the persons before mentioned; and those three instruments are to be deposited respectively with Rot. Parl. 13 Ed. III. vol. ii. p. 107.

the minister of the successor at the British court, the archbishop of Canterbury, and the lord chancellor, and sealed with their seals. The lords justices appointed in and by virtue of this act are precluded, not only from giving the royal assent to bills altering certain acts which (as we shall see) have been constantly placed beyond the power of regents, and conferring any title, but from dissolving parliament without express direction so to do from the successor to the throne.

We must proceed now to consider the constitutional law of England with regard to the office of regent, which it becomes necessary to call into existence in cases where the sovereign is physically incapable of exercising the regal functions.

The earliest precedent of this nature afforded by our history is that of Henry III., on whose succeeding to the throne, while yet a child, by the death of king John, William earl of Pembroke assumed the title of rector regis et regni, with the consent of the barons who had proclaimed the young king.

The appointment of the archbishop of York and the earls of Cornwall and Gloucester to be ministers and guardians of the realm by the nobility, on the death of king Henry III., his successor, Edward I., being at the time in Sicily, is in some respects analogous to the case of a temporary incapacity of the sovereign: but the next precedent of a regency occurs on the accession of Edward III., at the age of fourteen. There the earl of Lancaster was placed at the head of a council of four bishops, four earls, and six barons, to advise the king in all the business of government. But the proceedings of the next reign are more worthy of attention. Edward III. dying June 21, 1377, the keepers of the great seal next day, in

1 Matt. Paris, p. 243.

the absence of the chancellor beyond sea, gave it into the young king's hands before his council. He immediately delivered it to the duke of Lancaster, and the duke to Sir Nicholas Bonde, for safe custody; and four days afterwards the king in council delivered the seal to the bishop of St. David's, who affixed it the same day to divers letters patent. Thus it appears that the king, being at the time of the age of ten years and six months, exercised the royal authority in person. No regent was created, but a council of twelve was named by the prelates and peers on the 16th July, 1577, without whose concurrence no public measure could be carried into effect.

The next instance is that of Henry VI., who succeeded to the throne at the age of nine years. On the death of Henry V. commissions were issued to the judges, sheriffs, and others, and writs for a new parliament, by several lords spiritual and temporal, who immediately assembled. The parliament was then opened by commission under the great seal, directed to the duke of Gloucester in the usual form, with the king's test.2 On the 27th day of its session, it is entered upon the roll, that the king, considering his tender age, and inability to direct in person the concerns of his realm, by assent of lords and commons, appoints the duke of Bedford, or, in his absence beyond sea, the duke of Gloucester, to be protector and defender of the kingdom and English Church, and the king's chief councillor. Letters patent were made out to this effect, the appointment being, however, expressly during the king's pleasure. Sixteen councillors were named in parliament to assist the protector in his administration; and their concurrence was made necessary to the removal and appointment of officers, except some Rymer, t. vii. p. 171.

2 Rot. Parl. vol. iv. p. 169.

inferior patronage specifically reserved to the protector. It must be observed, that this arrangement was in contravention of the late king's testament, which had conferred the regency on the duke of Gloucester. But it was denied by the house of lords, in a later parliament,1 that the king had any right to commit the government of the kingdom to any person longer than he lived, or alter the law regarding such cases, without the assent of the three estates of the realm. Their address also clearly shews their opinion to be, that no person is, by the constitution of England, entitled to the regency, but that the office is to be created by the parliament, subject to such limitations as may seem fit to that great council.

In the year 1454 an emergency arose, differing from any of the cases before mentioned. King Henry became deranged or imbecile, and thereupon Richard duke of York was, by the peers, "elected and nominated to be protector and defender of the realm of England during the king's pleasure." The duke asked for a confirmation of his authority by act of parliament, for his security; and to be informed how far the power and authority of his charge should extend. The lords promised that a statute should be made conformable to that enacted in the king's infancy; and answered, that the duke should be the chief of the king's council, with the title of protector, and not lieutenant, nor governor, nor tutor, nor regent. act was accordingly passed, constituting the duke of York protector of the Church and kingdom, and chief councillor of the king, during the king's pleasure, or until the prince of Wales should attain years of discretion, on whom the said dignity was immediately to devolve. In about nine months, however, the king's recovery put an end to the duke of York's protectorate.

1 Rot. Parl. 6 Hen. VI. vol iv. p. 326.

An

When the parliament met in July 1455, the king was a prisoner in his enemies' hands; and the lords, upon the representations of the commons, answered to that assembly, that the king, by the advice and assent of the lords spiritual and temporal in parliament, had named the duke of York to be protector and defensor of the land. But the slight allegations on which this step was taken, and a clause in the act confirming the nomination of the lords, providing that the duke should hold his office "until he should be discharged of it by the lords in parliament," are, in the opinion of Hallam, sufficient to prove, that whatever passed as to this second protectorate of the duke of York was altogether of a revolutionary character.1

Both Henry V. and Henry VI., according to Blackstone, remained in a state of pupilage till the age of twenty-three. Edward V. was recommended at the age of thirteen to the care of the duke of Gloucester, who was declared protector by the privy council; but the circumstances of the times deprive this case of any value as a constitutional precedent.

We come now to the reign of Henry VIII., when it was enacted,2 that the successor, if a male and under eighteen, or if a female and under sixteen, should be till such age in the government of his or her mother (if approved by the king), and such other councillors as his majesty should by will or otherwise appoint; and he accordingly appointed his sixteen executors to have the government of his son Edward VI. and the kingdom, which executors elected the earl of Hertford protector.3

The next instance of a provision for the minority of

1 See Hallam, Mid Ages, vol. i. pt. iii. ch. viii. p. 185-192. 2 Stat. 25 Hen. VIII. c. xii.; and stat. 28 Hen. VIII. c. vii. Blackst. Com. b. i. c. vii. p. 247 note.