Front Page Titles (by Subject) CHAPTER IV.: OF THE KING'S ROYAL FAMILY. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER IV.: OF THE KING’S ROYAL FAMILY. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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OF THE KING’S ROYAL FAMILY.
The first and most considerable branch of the king’s royal family, regarded by the laws of England, is the queen.
The queen of England is either queen regent, queen consort, or queen dowager. The queen regent, regnant, or sovereign, is she who holds the crown in her own right; as the first (and perhaps the second) queen Mary, queen Elizabeth, and queen Anne; and such a one has the same powers, prerogatives, rights, dignities, and duties, as if she had been a king. This was observed in the entrance of the last chapter, and is expressly declared by statute 1 Mar. I. st. 3, c. 1.1 But the queen consort is the wife of the reigning king; and she, by virtue of her marriage, is participant of divers prerogatives above other women.(a)
And, first, she is a public person, exempt and distinct from the king; and not, like other married women, so closely connected as to have lost all legal or separate existence so long as the marriage continues. For the queen is of ability to purchase lands, and to convey them, to make leases, to grant copyholds, and do other acts of ownership, without the concurrence of her lord; which no other married woman can do:(b) a privilege as old as the Saxon era.(c) She is also capable of taking a grant from the king, which no other wife is from her husband; and in this particular she agrees with the Augusta, or piissima regina conjux divi imperatoris of the Roman laws; who, according to Justinian,(d) was equally *[*219capable of making a grant to, and receiving one from, the emperor. The queen of England hath separate courts and offices distinct from the king’s, not only in matters of ceremony, but even of law; and her attorney and solicitor general are entitled to a place within the bar of his majesty’s courts, together with the king’s counsel.(e) She may likewise sue and be sued alone, without joining her husband.2 She may also have a separate property in goods, as well as lands, and has a right to dispose of them by will.3 In short, she is in all legal proceedings looked upon as a feme sole, and not as a feme covert; as a single, not as a married woman.(f) For which the reason given by Sir Edward Coke is this: because the wisdom of the common law would not have the king (whose continual care and study is for the public, and circa ardua regni) to be troubled and disquieted on account of his wife’s domestic affairs; and therefore it vests in the queen a power of transacting her own concerns, without the intervention of the king, as if she was an unmarried woman.
The queen hath also many exemptions and minute prerogatives. For instance, she pays no toll;(g) nor is she liable to any amercement in any court.(h) But in general, unless where the law has expressly declared her exempted, she is upon the same footing with other subjects; being to all intents and purposes the king’s subject and not his equal: in like manner, as in the imperial law, “Augusta legibus soluta non est.”(i)
The queen hath also some pecuniary advantages, which form her a distinct revenue: as, in the first place, she is entitled to an ancient perquisite called queen-gold, or aurum reginæ, which is a royal revenue, belonging to every queen consort during her marriage with the king, and due from every person who hath made a voluntary offering or fine to the king, amounting to ten marks or upwards, for and in consideration of any privileges, grants, licenses, pardons, or **220]other matter of royal favour conferred upon him by the king: and it is due in the proportion of one-tenth part or more, over and above the entire offering or fine made to the king; and becomes an actual debt of record to the queen’s majesty by the mere recording of the fine.(k) As, if an hundred marks of silver be given to the king for liberty to take in mortmain, or to have a fair, market, park, chase, or free-warren; there the queen is entitled to ten marks in silver, or (what was formerly an equivalent denomination) to one mark in gold, by the name of queen-gold, or aurum reginæ.(l) But no such payment is due for any aids or subsidies granted to the king in parliament or convocation; nor for fines imposed by courts on offenders, against their will; nor for voluntary presents to the king, without any consideration moving from him to the subject; nor for any sale or contract whereby the present revenues or possessions of the crown are granted away or diminished.(m)
The original revenue of our ancient queens, before and soon after the conquest, seems to have consisted in certain reservations or rents out of the demesne lands of the crown, which were expressly appropriated to her majesty, distinct from the king. It is frequent in domesday book, after specifying the rent due to the crown, to add likewise the quantity of gold or other renders reserved to the queen.(n) These were frequently appropriated to particular purposes; to buy wool for her majesty’s use,(o) to purchase oil for her lamps,(p) or to furnish her attire from head to foot,(q) which was frequently very costly, as one single robe in the fifth year of Henry II. **221]stood the city of London in upwards of fourscore pounds.(r) A practice somewhat similar to that of the eastern countries, where whole cities and provinces were specifically assigned to purchase particular parts of the queen’s apparel.(s) And for a further addition to her income, this duty of queen-gold is supposed to have been originally granted; those matters of grace and favour, out of which it arose, being frequently obtained from the crown by the powerful intercession of the queen. There are traces of its payment, though obscure ones, in the book of domesday, and in the great pipe-roll of Henry the First.(t) In the reign of Henry the Second the manner of collecting it appears to have been well understood, and it forms a distinct head in the ancient dialogue of the exchequer,(u) written in the time of that prince, and usually attributed to Gervase of Tilbury. From that time downwards it was regularly claimed and enjoyed by all the queen consorts of England till the death of Henry VIII.; though, after the accession of the Tudor family, the collecting of it seems to have been much neglected: and there being no queen consort afterwards till the accession of James I., a period of near sixty years, its very nature and quantity became then a matter of doubt; and, being referred by the king to the chief justices and chief baron, their report of it was so very unfavourable,(v) that his consort queen Anne (though she claimed it) yet never thought proper to exact it. In 1635, 11 Car. I., a time fertile of expedients for raising money upon dormant precedents in our old records, (of which ship-money was a fatal instance,) the king, at the petition of his queen, Henrietta Maria, issued out his writ(w) for levying it; but afterwards purchased it of his consort at the price of ten thousand pounds; finding it, perhaps, too trifling and troublesome to levy. And when afterwards, at the restoration, by *[*222the abolition of the military tenures, and the fines that were consequent upon them, the little that legally remained of this revenue was reduced to almost nothing at all, in vain did Mr. Prynne, by a treatise which does honour to his abilities as a painful and judicious antiquary, endeavour to excite queen Catherine to revive this antiquated claim.
Another ancient perquisite belonging to the queen consort, mentioned by all our old writers,(x) and, therefore only, worthy notice, is this: that, on the taking of a whale on the coasts, which is a royal fish, it shall be divided between the king and queen; the head only being the king’s property, and the tail of it the queen’s. “De sturgione observatur, quod rex illum habebit integrum: de balena vero sufficit, si rex habeat caput, et regina caudam.” The reason of this whimsical division, as assigned by our ancient records,(y) was to furnish the queen’s wardrobe with whalebone.4
But further, though the queen is in all respects a subject, yet, in point of the security of her life and person, she is put on the same footing with the king. It is equally treason (by the statute 25 Edw. III.) to compass or imagine the death of our lady the king’s companion, as of the king himself; and to violate or defile the queen consort, amounts to the same high crime; as well in the person committing the fact, as in the queen herself, if consenting. A law of Henry the Eighth(z) made it treason also for any woman, who was not a virgin, to marry the king without informing him thereof; but this law was soon after repealed, it trespassing too strongly as well on natural justice as female modesty.5 If, however, the queen be accused of any species of treason, she shall (whether consort or dowager) be tried by the peers of parliament, as queen Anne Boleyn was in 28 Hen. VIII.6
The husband of a queen regnant, as prince George of Denmark was to queen Anne, is her subject, and may be guilty of high treason against her;7 but, in the instance of conjugal infidelity, he is not subjected to the same penal *[*223restrictions: for which the reason seems to be that, if a queen consort is unfaithful to the royal bed, this may debase or bastardize the heirs to the crown; but no such danger can be consequent on the infidelity of the husband to a queen regnant.
A queen dowager is the widow of the king, and, as such, enjoys most of the privileges belonging to her as queen consort. But it is not high treason to conspire her death, or to violate her chastity, for the same reason as was before alleged, because the succession to the crown is not thereby endangered. Yet still, pro dignitate regali, no man can marry a queen dowager without special license from the king, on pain of forfeiting his lands and goods. This, Sir Edward Coke(a) tells us, was enacted in parliament in 6 Hen. VI., though the statute be not in print.8 But she though an alien born, shall still be entitled to dower after the king’s demise, which no other alien is.(b) A queen dowager, when married again to a subject, doth not lose her regal dignity, as peeresses dowager do their peerage when they marry commoners. For Catherine, queen dowager of Henry V., though she married a private gentleman, Owen ap Meredith ap Theodore, commonly called Owen Tudor, yet, by the name of Catherine, queen of England, maintained an action against the bishop of Carlisle.9 And so, the queen dowager of Navarre, marrying with Edmond earl of Lancaster, brother to king Edward the First, maintained an action of dower (after the death of her second husband) by the name of queen of Navarre.(c)
The prince of Wales, or heir-apparent to the crown, and also his royal consort, and the princess royal, or eldest daughter of the king, are likewise peculiarly regarded by the laws. For, by statute 25 Edw. III., to compass or conspire the death of the former, or to violate the chastity of either of the latter, are as much high treason as to conspire the death of the king, or violate the chastity of the queen. And this upon the same reason as was before given: because the prince of Wales is next in succession to the crown, and to violate his wife might taint the blood royal with bastardy; and the eldest daughter of the king is also alone inheritable10 to the **224]crown, on failure of issue male, and therefore more respected by the laws than any of her younger sisters,11 insomuch that upon this, united with other (feodal) principles, while our military tenures were in force, the king might levy an aid for marrying his eldest daughter, and her only. The heir-apparent to the crown12 is usually made prince of Wales and earl of Chester13 by special creation and investiture;14 but, being the king’s eldest son,15 he is by inheritance duke of Cornwall, without any new creation.(d)16
The rest of the royal family may be considered in two different lights, according to the different senses in which the term royal family is used. The larger sense includes all those who are by any possibility inheritable to the crown. Such, before the revolution, were all the descendants of William the Conqueror, who had branched into an amazing extent, by intermarriages with the ancient nobility. Since the revolution and act of settlement, it means the protestant issue of the princess Sophia; now comparatively few in number, but which, in process of time, may possibly be as largely diffused. The more confined sense includes only those, who are within a certain degree of propinquity to the reigning prince, and to whom, therefore, the law pays an extraordinary regard and respect; but, after that degree is past, they fall into the rank of ordinary subjects, and are seldom considered any further, unless called to the succession upon failure of the nearer lines. For, though collateral consanguinity is regarded indefinitely, with respect to inheritance or succession, yet it is and can only be regarded within some certain limits, in any other respect, by the natural constitution of things and the dictates of positive law.(e)
The younger sons and daughters of the king, and other branches of the royal family, who are not in the immediate line of succession, were therefore little further regarded by the ancient law, than to give them to a certain degree precedence before all peers and public officers, as well ecclesiastical as temporal. This is done by the statute 31 Hen. VIII. c. 10, **225]which enacts that no person, except the king’s children, shall presume to sit or have place at the side of the cloth of estate in the parliament chamber; and that certain great officers therein named shall have precedence above all dukes, except only such as shall happen to be the king’s son, brother, uncle, nephew, (which Sir Edward Coke(f) explains to signify grandson or nepos,) or brother’s or sister’s son. Therefore, after these degrees are past, peers or others of the blood royal are entitled to no place or precedence except what belongs to them by their personal rank or dignity: which made Sir Edward Walker complain,(g) that, by the hasty creation of prince Rupert to be duke of Cumberland, and of the earl of Lenox to be duke of that name, previous to the creation of king Charles’s second son, James, to be duke of York, it might happen that their grandsons would have precedence of the grandsons of the duke of York.
Indeed, under the description of the king’s children his grandsons are held to be included, without having recourse to Sir Edward Coke’s interpretation of nephew; and therefore, when his late majesty king George II. created his grandson Edward, the second son of Frederick prince of Wales deceased, duke of York, and referred it to the house of lords to settle his place and precedence, they certified(h) that he ought to have place next to the late duke of Cumberland, the then king’s youngest son; and that he might have a seat on the left hand of the cloth of estate. But when, on the accession of his present majesty, those royal personages ceased to take place as the children, and ranked only as the brother and uncle, of the king; they also left their seats on the side of the cloth of estate: so that when the duke of Gloucester, his majesty’s second brother, took his seat in the house of peers,(i) he was placed on the upper end of the carls’ bench (on which the dukes usually sit) next to his royal highness the duke of York. And in 1718, upon a question referred to all the judges by king George I., it was resolved, by the opinion of ten against the other two, that the education and care of all the king’s grandchildren while minors did belong of right to his majesty, as king of this realm, even during their father’s life.(k)17 But they all agreed, that the care and approbation of their marriages, when grown up, belonged to the king their grandfather. And the judges have more recently concurred in the opinion,(l) that this care and approbation extend also to the presumptive heir of the crown; though to what other branches of the royal family the same did extend, they did not find precisely determined. The most frequent instances of the crown’s interposition go no *[*226further than nephews and nieces;(m) but examples are not wanting of its reaching to more distant collaterals.(n) And the statute 6 Henry VI. before mentioned, which prohibits the marriage of a queen dowager without the consent of the king, assigns this reason for it:18 —“because the disparagement of the queen shall give greater comfort and example to other ladies of estate, who are of the blood-royal, more lightly to disparage themselves.”(o) Therefore by the statute 28 Hen. VIII. c. 18, (repealed, among other statutes of treasons, by 1 Edw. VI. c. 12,) it was made high treason for any man to contract marriage with the king’s children or reputed children, his sisters or aunts ex parte paterna, or the children of his brethren or sisters; being exactly the same degrees to which precedence is allowed by the statute 31 Hen. VIII. before mentioned. And now, by statute 12 Geo. III. c. 11, no descendant of the body of king George II. (other than the issue of princesses married into foreign families) is capable of contracting matrimony, without the previous consent of the king signified under the great seal; and any marriage contracted without such consent is void. Provided, that such of the said descendants as are above the age of twenty-five may, after a twelvemonth’s notice given to the king’s privy council, contract and solemnize marriage without the consent of the crown; unless both houses of parliament shall, before the expiration of the said year, expressly declare their disapprobation of such intended marriage. And all persons solemnizing, assisting, or being present at, any such prohibited marriage, shall incur the penalties of the statute of præmunire.19
[1 ] Mary being the first queen that had sat upon the English throne, this statute was passed, as it declares, for “the extinguishment of the doubt and folly of malicious and ignorant persons,” who might be induced to think that a queen could not exercise all the prerogatives of a king.—Christian.
[(a) ] Finch, L. 86.
[(b) ] 4 Rep. 23.
[(c) ] Seld. Jan. Angl. 1, 42. The instance meant, loc. citat., is where Æthelswith, wife to Burghred, king of the Mercians, granted a patent to Cuthwals.
[(d) ] Cod. 5, 16, 26.
[(e) ] Seld. tit. hon. 1, 6, 7.
[2 ] So our kings may settle lands in jointure on their queen, who may accept the same and dispose of the profits. Stat. 32 Hen. VIII. c. 51. Statutes of the Realm, printed by authority, not in the ordinary edition of the statutes. If the existence of this statute had been better known, the stat. 39, 40 Geo. III. c. 88, 8, 9 might not have been deemed expedient. And acts of parliament relating to her need not be pleaded, she being a public person. 8 Rep. 28. And, by various modern statutes, the king is enabled to make grants for her benefit. Stat. 2 Geo. III. c. 1; 15 Geo. III. c. 33; 47 Geo. III. st. 2, c. 45.—Chitty.
[3 ] Which if she omit to do, or otherwise dispose of them in her lifetime, both her real and personal estate go to the king after her death. Co. Litt. 3. a. 133. a. Finch, 86. 1 Roll. Abr. 912.—Chitty.
[(f) ] Finch, L. 86. Co. Litt. 133.
[(g) ] Co. Litt. 133.
[(h) ] Finch, L. 185.
[(i) ]Ff. i. 3, 31.
[(k) ] Pryn. Aur. reg. 2.
[(l) ] 12 Rep. 21. 4 Inst. 358.
[(m) ] Ibid. Pryn. 6. Madox, Hist. Exch. 242.
[(n) ]Bedefordscire. Maner. Lestone redd. per annum xxii lib. &c.; ad opus reginæ [Editor: Illegible character] uncias auri.—Herefordscire. In Lene, &c. consuetud. ut præpositus manerii veniente domina sua (regina) [Editor: Illegible character] maner. præsentaret ei xviii oras denar. ut esset ipsa læto animo. Pryn. Append. to Aur. Reg. 2, 3.
[(o) ]Causa coadunandi lanam reginæ. Domesd ibid.
[(p) ]Ciritas Lundon. Pro oleo ad lampad. reginæ. (Mag. rot. pip. temp. Hen. II. ibid.)
[(q) ]Vicecomes Berkescire, xvi. l pro cappa reginæ. (Mag. rot. pip. 19. 22 Hen. II. ibid.) Civitas Lund. cordubanario reginæ xx s. (Mag. rot. 2 Hen. II. Madox, Hist. Exch. 419.)
[(r) ]Pro roba ad opus reginæ, quater xx l. et [Editor: Illegible character] s. viii d. (Mag. rot. 5 Hen. II. ibid. 250.)
[(s) ]Solere aiunt barbaros reges Persiarum ac Syrorum,—uxoribus civitates attribuere, hoc modo; hæc civitas mulieri redimiculum præbeat, hæc in collum, hæc in crines, &c. (Cic. in Verrem, lib. 3, cap. 33.)
[(t) ] See Madox, Disceptat. Epistolar. 74. Pryn. Aur. Reg. Append. 5.
[(u) ]Lib. 2, c. 26.
[(v) ] Mr. Prynne, with some appearance of reason, insinuates that their researches were very superficial. (Aur. Reg. 125.)
[(w) ] 19 Rym. Fœd. 721.
[(x) ] Bracton, l. 3, c. 3. Britton, c. 17. Flet. l. 1, c. 45 et 46.
[(y) ] Pryn. Aur. Reg. 127.
[4 ] The reason is more whimsical than the division; for the whalebone lies entirely in the head.—Christian.
[(z) ] Stat. 33 Hen. VIII. c. 21.
[5 ] This was a clause in the act which attainted queen Catherine Howard and her accomplices for her incontinence; but it was not repealed till the 1 Edw. VI. c. 12, which abrogated all treasons created since the memorable statute in the 25 Edw. III.—Christian.
[6 ] Anne Boleyn was convicted of high treason in the court of the lord high-steward. One of the charges against this unhappy queen was that she had said “that the king never had had her heart,”—a declaration, if made, in which there was probably more truth than discretion; but this was adjudged to be a slander of her own issue, and therefore high treason, according to a statute which had been passed about two years before for her honour and protection. Harg. St. Tr. vol. xi. p. 10.
Articles of impeachment were prepared against queen Catherine Parr for heresy, in presuming to controvert the theological doctrines of the king; but, by her dexterity and address, she baffled the designs of her enemies, and regained the affections of that capricious monarch. 4 Hume, 259.
Articles of impeachment for high treason were exhibited against Henrietta, queen of Car. I., from which she saved herself by an escape to France. 7 Hume, 10.—Christian.
[7 ] The act of naturalization of his Royal Highness Prince Albert (3 & 4 Vict. c. 2) required, in the usual form, that he should take the oath of allegiance and supremacy.—Sharswood.
[(a) ] 2 Inst. 18. See Riley’s Plac. Parl. 72.
[8 ] Mr. Hargrave, in a note to Co. Litt. 133, says that no such statute can be found. Lord Coke there refers to it by 8 Hen. VI. No. 7, in 2 Inst. 18; by 6 Hen. VI. No. 41. In Riley’s Plac. Parl. it is called 2 Hen. VI.—Christian.
[(b) ] Co. Litt. 31.
[9 ] The foregoing proposition is not really illustrated by the case of Catherine, inasmuch as her marriage with Tudor was carefully concealed, and not discovered till after her burial,—when it produced great public excitement and uproar, as she left four children. It is needless to remind the reader that Tudor proved the ancestor of a new dynasty of British sovereigns.—Warren.
[(c) ] Inst. 50.
[10 ] This should read “inheritable alone;” that is, not in coparcenary with her sisters.—Coleridge.
[11 ] This statute perhaps was not meant to be extended to the princess royal when she had younger brothers living, for the issue of their wives must inherit the crown before the issue of the princess royal, yet their chastity is not protected by the statute.—Christian.
[12 ] This creation has not been confined to the heir-apparent, for both queen Mary and queen Elizabeth were created by their father Henry VIII. princesses of Wales, each of them at the time (the latter after the illegitimation of Mary) being heir-presumptive to the crown. 4 Hume, 113.
Edward II. was the first prince of Wales. When his father had subdued the kingdom of Wales, he promised the people of that country, upon condition of their submission, to give them a prince who had been born among them, and who could speak no other language. Upon their acquiescence with this deceitful offer, he conferred the principality of Wales upon his second son Edward, then an infant. Edward, by the death of his eldest brother Alfonso, became heir to the crown; and from that time, this honour has been appropriated only to the eldest sons or eldest daughters of the kings of England. 2 Hume, 243.—Christian.
[13 ] Selden tells us “that the earldom of Chester was once also a principality, erected into that title by parliament in 21 Rich. II., wherein it was also ordained that it should be given to the king’s eldest son: But that whole parliament was repealed in the first of Henry IV., although the earldom hath usually been since given with the principality of Wales.” Seld. tit. of hon. 2, 5, 1.—Christian.
[14 ] That is, by letters patent under the great seal of England.—Christian.
[15 ] Lord Coke, in the Prince’s case, in the 8th Report, has expressly advanced, that the duchy of Cornwall cannot descend, upon the death of the king’s first-born son, to the eldest then living. But this position is beyond all controversy erroneous. Lord Hardwicke, in Lomax vs. Holmden, 1 Ves. 294, has observed, “That the eldest son of the king of England takes the duchy of Cornwall as primogenitus; although lord Coke at the end of the Prince’s case says otherwise. But this was not the point there, being only an observation of his own, and has ever since been held a mistake of that great man. He was also mistaken in the fact, in saying that Henry VIII. was not duke of Cornwall, because not primogenitus; for lord Bacon in his history of Henry VII. affirms the contrary, that the dukedom devolved to him upon the death of Arthur; and this is by a great lawyer, and who must have looked into it, as he was then attorney or solicitor general.” But this point was solemnly determined in 1613, upon the death of prince Henry the eldest son of James I., in the case of the duchy of Cornwall, the report of which is inserted at length in Collin’s Proceedings on Baronies, p. 148. In which it was resolved that prince Charles, the king’s second son, was duke of Cornwall by inheritance.
It is more strange that lord Coke should have fallen into this mistake, as the contrary appears from almost every record upon the subject.
In the 5th Henry IV., the second reign after the creation of the duchy, there is a record, in which prince Henry makes a grant of part of the duchy lands to the countess of Huntingdon, and the record states, that because the prince is within age, so that in law his grant is not effectual to give a sure estate, he shall pledge his faith before the king and all the lords of parliament, that when he attains his full age he shall grant a sure estate against himself and his heirs; and that his three brothers, Thomas, John, and Humphrey, shall in like manner pledge their faith to confirm the same estate, si issint aveigne, que Dieux defende, que le dit duche unques devient en lours mains, if it should so happen, which God forbid, that the said duchy should ever come into their hands, and thereupon they all made a promise and took an oath to that effect. Rot. Parl. 5 Hen. IV. No. 4.
But the second son would not succeed to the dukedom, if his elder brother left issue: in that case it would revert to the crown. The duke of Cornwall must be both the king’s eldest son and heir-apparent to the crown: this appears from a great variety of records, que les fitz eisnes des rois d’Engleterre, c’est assavoir, ceux qui serroient heirs proscheins du roialme d’Engleterre, fuissent ducs de Cornewaile. Rot. Parl. 9 Hen. V. No. 20.
In a charter of livery of the duchy by Ed. IV. to his eldest son prince Edward, recited in the rolls of parliament, the following sentence is part of the preamble:—Filii primogeniti regum Angliæ primo nativitatis suæ die majoris atque perfectæ præsumuntur ætatis, sic quod liberationem dicti ducatûs eo tunc à nobis petere valeant atque de jure obtinere debeant ac si viginti et unius annorum ætatis plenæ fuissent. Rot. Parl. 12 Ed. IV. No. 14. From this and from other authorities it follows that a duke of Cornwall is born of full age, or is subject to no minority with respect to his enjoyment of the possessions annexed to the dukedom.
This is a strange species of inheritance, and perhaps is the only mode of descent which depends upon the authority of a statute. In the Prince’s case, reported by lord Coke, the question was, whether the original grant to Edward the Black Prince, who was created in the 11th of Ed. III. duke of Cornwall, and who was the first duke in England after the duke of Normandy, had the authority of parliament, or was an honour conferred by the king’s charter alone. If the latter, the limitation would have been void, as nothing less than the power of parliament can alter the established rules of descent. But notwithstanding it is in the form of a charter, it was held to be an act of the legis lature. It concludes, per ipsum regem et totum concilium in parliamento.—Christian.
Lord Hardwicke, in the case of Lomax vs. Holmden, 1 Ves. sen. 294, concurs in that free interpretation of the word primogenitus which Blackstone, Selden, lord Bacon, lord Ellesmere, and Fitzherbert, all adopted, but which Mr. Christian, following the obiter dictum of lord Coke, disapproves.—Hoveden.
[(d) ] 8 Rep. 1. Seld. tit. of hon. 2, 5.
[16 ] The king’s eldest living son and heir-apparent takes, under the grant ann. 11 E. III., the dukedom of Cornwall, and retains it during the king his father’s life: on the accession of such duke to the crown, the duchy vests in the king’s eldest son living, and heir-apparent. But, if there be no eldest son and heir-apparent, the dukedom remains with the king, the heir-presumptive in no case being entitled to the dukedom. See 1 Ves. 294. Collin’s Bar. 148. The rule may be shortly stated: until a prince be born, the king is seized; but when born, the prince becomes seized in fee of the possessions; and, except as to presentations to benefices, leases generally made by the king are voidable by scire facias, sued at the instance of the prince. See Com. Dig. tit. roy. G. 5. Id. 280, 281. Ca. Ch. 215. But, as to what leases or grants made by the king shall be good, see stat. 33 Geo. II. c. 10. If the eldest son die, and leave a son, such son would not take: but the duchy reverts to the crown. And there is no minority with reference to the possessions of a duke of Cornwall.—Chitty.
[(e) ] See Essay on Collateral Consanguinity, in Law Tracts, 4to, Oxon. 1771.
[(f) ] 4 Inst. 362.
[(g) ] Tracts, p. 301.
[(h) ] Lords’ Jour. 24 Apt. 1760.
[(i) ] Lords’ Jour. 10 Jan. 1765.
[(k) ] Fortesc. Al. 401-440.
[17 ] 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. See Harg. St. Tr. vol. xi. 295.—Christian.
[(l) ] Lords’ Jour. 28 Feb. 1772.
[(m) ] See (besides the instances cited in Fortescue Aland) for brothers and sisters: under king Edward III. 4 Rym. 392, 403, 411, 501, 508, 512, 549, 683; under Henry V. 9 Rym. 710, 711, 741; under Edward IV. 11 Rym. 564, 565, 590, 601; under Henry VIII. 13 Rym. 249, 423; under Edward VI. 7 St. Tr. 3, 8. For nephews and nieces: under Henry III. 1 Rym. 852; under Edward I. 2 Rym. 489; under Edward III. 5 Rym. 561; under Richard II. 7 Rym. 264; under Richard III. 12 Rym. 232, 244; under Henry VIII. 15 Rym. 26, 31.
[(n) ] To great nieces: under Edward II. 3 Rym. 575, 644. To first cousins: under Edward II. 5 Rym. 177. To second and third cousins: under Edward III. 5 Rym. 729; under Richard II. 7 Rym. 225; under Henry VI. 10 Rym. 322; under Henry VII. 12 Rym. 529; under queen Elizabeth, Cambd. Ann. ad 1562. To fourth cousins: under Henry VII. 12 Rym. 329. To the blood-royal in general: under Richard II. 7 Rym. 787.
[18 ] The occasion of this statute was the marriage of Catherine, mother to Henry VI., with Owen Tudor, a private gentleman. See p. 223.—Christian.
[(o) ] Ril. Plac. Parl. 672.
[19 ] Accordingly, on the death of the late duke of Sussex, the fifth son of king George III., who had been married at Rome in 1792 by a minister of the Church of England, and shortly afterwards again in England, according to the rules of the Church of England, it was held that his peerage did not pass to the only son of the marriage, Sir Augustus d’Este, but that the statute extended to prohibit contracts for and to annul any marriages contracted in violation of its provisions wherever the same might be contracted or solemnized. The Sussex Peerage Case, 11 Clark & Fin. 85.—Sharswood.