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Home , Duke, Duke of Cornwall, Duke of Gloucester, Heir apparent, King, Princess

220 THE 'S . [Book L

due to the , 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 's use, (o) to purchase oil for her lamps, (p) or to fur-

nish her attire from head to foot, (q) which was frequently very costly, as one

F *2211 8'n£'e rob6) in the fifth year of Henry II, *stood the city of in

I- *v J upwards of fourscore pounds, (r) A practice somewhat similar to that

of the eastern countries, where whole cities and were specifically

assigned to purchase particular parts of the queen's apparel. («) And, for a

further addition to her income, this duty of queen-gold is supposed to have

been originally granted; those matters of 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 of

Henry the Second the manner of collecting it appears to have been well under-

stood, and forms a distinct head in the ancient dialogue of the exchequer, (u)

written in the time of that , and usually attributed to Gervase of Tilbury.

From that time downwards it was regularly claimed and enjoyed by all the queen

consorts of 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 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 , their

report of it was so very unfavorable, (v) that his consort (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, , issued out his writ (w) for levying it; but after-

wards 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

F *2221 re8*-oration, % *the abolition of the military tenures, and the fines that

*• "J J 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 Catharine 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 coast, which is a royal fish, it shall be divided between the king

and queen; the head only being the king's property, and the toil of it the

wardrobe with whalebone. (2)

But farther, though the-queen is in all respects a subject, yet, in point of the

security of her life and person, she isput on the same footing with the king. It

is equally treason (by the statute 25 Edw. Ill,) to compass or imagine the death

(n) Bedefordeeire Maner. Lestone redd, per annum xxii lib.

tcire. In '/.<•»<•, .)•<•., coniuetud. tttprcepotitut manerii veniente domino, mm (regina) in nunirr. prtetentaret d

xviU orai denar. vt eiset ipsa Into ammo. Pryn. Append, to Aur. Reg. 2, 3.

(o) Causa coadunandi tnnam regina. Dornesrt. ibid.

(p) Civitat Lundon. l*ro oleo ad lampad. regina. (Mag. rot. pip. temp. Hen. II, ibid.)

(q) Vicecomei Berke»cire. xvi 1. pro cappa regina. (Mag. rot. pip. la.—22 Ben. II, ibid.) Civitas Lund

cordulxmario regintr xx s. (Mag. rot. 2 Hen. II. Mndox. Hist. Exch. iW>.)

(r) Pro roba ad opus regime, qutiter xxl. etvi 8 viii d. (Mag. rot. 5 Hen.II, ibid. 250 )

(») Solere aiuni barbaroa regei Peraiarum ac Syrorum—uxoribui ciritates attrilntere, hoe modo i hose ctri-

tas mulieri redimiculwn prcebeat, here in collum, hoic in crines, ifc. (Cic. in Verrem, lib. 3. cap. 33.)

ft) See Madox, Diseeptat. Eptitolar. 74. Pryn. Aur. Beg. Append. 6. (u) Lib. 2, c. 26.

(v) Mr. Prynne, with some appearance of reason, insinuates that their researches were very superficial.

(Aur. Reg. 125 J

(v>) 19 Kym. Fad. 721. (x) Bracton, 1. 3, c. 3. Brltton, c 17. Flet. 1.1, c. 45 et 46.

ftJ Pryn. Aur. Reg. 127.

(2) [The reason is more whimsical than the division, for the whalebone lies entirely in the

head.]

142 Generated for asbigham (University of Michigan) on 2013-04-29 18:50 GMT / http://hdl.handle.net/2027/nyp.33433008577102 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google Chap. 4.J OF THE PRINCE OF . 222

of our 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 per-

son committing the fact, as in the queen herself, if consenting. A of Henry

the Eighth (z) made it treason also for any , who was not a virgin, to

marry the king without informing him thereof: but this law was soon after

repealed, (3) it trespassing too strongly as well on natural justice as female

modesty. 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 Ann

Boleyn was in 28 Hen. VIII.

The husband of a , as Prince George of was to Queen

Anne, is her subject: and may be guilty of high treason against her: but, in

the instance of conjugal infidelity, he is not subjected to the same penal

*restrictions, for which the reason seems to be that, if a queen consort r MOO -i

is unfaithful to the royal bed, this may debase or bastardize the heirs to *• J

the crown; but no such danger can be consequent on the infidelity of the hus-

band to a queen regnant.

A 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 con-

spire 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

licence from the king, on pain of forfeiting his lands and goods. This, Ed-

ward Coke (a) tells us, was enacted in parliament in 6 Hen. VI, though the

statute be not in print. But she, though an alien born, shall still be entitled to

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 when they marry . For Catherine, queen

dowager of Henry V, though she married a private , Owen ap Mere-

dith ap Theodore, commonly called , yet, by the of Catherine,

queen of England, maintained an action against the of Carlisle. (4) And

so, the queen dowager of Navarre, marrying with Edmond 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 , or heir-apparent to the crown, and also his royal con-

sort, and the royal, or eldest daughter of the king, are likewise peculiarly

regarded by the . For, by statute 25 Edw. Ill, 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 might taint

the blood royal with bastardy: and the eldest daughter of the king is also alone

inheritable to the *crown, on failure of issue male, and therefore more r ^^. -i

respected by the laws than any of her sisters, insomuch that <• " •" J

upon this, united with other (feudal) 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 crown is usually made prince of Wales, (5) and

(*) Stat. 33 Hen. VIII, c. 21. (a) 2 Inst. 18. See JWey'sPlac. 1'ai 1.672. (6) Co. I.in. 31. b. (c) 2 lust. 90.

(3) [This was a clause in the act, which attainted Queen Catharine Howard, and her accom-

plices, 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.]

(4) [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 of British sovereigns. ]

(5) [This creation has not been confined to the heir-apparent, for both Queen Mary and

Qneen Elizabeth were created by their father, Henry VJII, of Wales, each of them

at the time (the latter after the iilegitimation of Mary) being to the crown. 4

Hume, 113.

Edward II was the first prince of "Wales. When his father had subdued the kingdom of

143 Generated for asbigham (University of Michigan) on 2013-04-29 18:50 GMT / http://hdl.handle.net/2027/nyp.33433008577102 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google 224 THE KING'S ROYAL FAMILY. [Book I.

earl of , by special creation, and investiture: but, being the king's eldest

son, he is by of , without any new creation. (6)

The rest of the royal family may be considered in two different lights, accord-

ing 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

. Since the revolution and act of settlement, it means the protestant

issue of the Princess Sophia; now comparatively few in number, but which, in pro-

cess 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 sel-

dom considered any farther, 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 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 farther 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.

F *2251 ^n*8 *8 ^one ^ the statute 31 Hen. VIII, c. 10, *which enacts that no

L -" 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 , except only such

as shall happen to be the king's son, brother, uncle, nephew, (which Sir Edward

Coke (/) 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, (a) that by the hasty

creation of Prince Kupert to be , and of the earl of Lenox

to be duke of that name, previous to the creation of King Charles' second son,

James, to be , 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 grand-

son Edward, the second son of Frederick, prince of Wales, deceased, duke of

York, and referred it to the house of to settle his place and precedence,

(d)8Eep. 1. Seld. Tit. of Hon. 2, 5.

(e) Sen E*»ay on Collateral Consanguinity, in Law Tracts, 4to: Oxon.mi. (/)4last. 862. (g) Tracts, p. 301.

I "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 of Wales upon

hia 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 honor has been appropriated only to the eldest

sons or eldest daughters of the of England. 2 Hume, 243.]

(6) [The king's eldest living son and takes, under the grant ann. 11 E. Ill, the

dukedom of Cornwall, and retains it during the king, his father's life: on the accession of such

duke to the crown, the 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-presump-

tive 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 bom, the prince becomes

seized in fee of the possessions; and, except as to presentations to benefices, leases jgenerally

made by the king are voidable by scire facias, sued at the instance of the prince. See Com. Dig.

tit. Eoy, Geo. V. 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 oldest 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 .

144 Generated for asbigham (University of Michigan) on 2013-04-29 18:50 GMT / http://hdl.handle.net/2027/nyp.33433008577102 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google Chap. 4.] MARRIAGE IN THE ROYAL FAMILY. 225

they certified (A) that he ought to have place next to the late duke of Cumber-

land, 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 , his majesty's

second brother, took his seat in the , (i) he was placed on tne

upper end of the earl's bench (on which the dukes usually sit) next to his

royal 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 , even during

their father's life, (k) But they all agreed, that the care and approbation of

their marriages, when grown up, belonged to the king their grandfather. (7)

And the judges have more recently concurred in opinion, (I) 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 pre-

cisely determined. The most frequent instances of the crown's interposition

go no *farther than nephews and nieces; (m) but examples are not r ^^Q i

"wanting of its reaching to more distant collaterals. (n) And the stat- L '"' J

ute 6 Hen. VI, before mentioned, which prohibits the marriage of a queen

dowager without the consent of the king, assigns this reason for it: (8)

" because the disparagement of the queen shall give greater comfort and example

to other 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. Ill, 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 with-

out 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

prcemunire" (9)

(») Lords' Journ. 24 Apr. 17fiO. (») Lords' Journ. 10 Jan. 1765.

(t) Tortesc. Al. 401—440. (J) Lords' Journ. 28 Feb. 1772.

(m) See (besides the instances cited in Fortescue Aland) for lirotlurs and shirrs ,- under king Edward III.

4 Rym. 392, 403, 411.501,508, 512, 549,683—nnder Henry V. 9 Eym. 710. 711,741—under Edward IV. 11 Rym

564, 5ft>, 590,601—under Henry VOL 13 Rym. 249, 42S—under Edward VI. 7 St. Tr. 8, 8. For nepfteaw and

nieces; under Henry III. 1 Rvm. 852—under Edward 1. 2 Rvm. 489—nnder Edward III. 6 Rym. 661—under

Richard II. 7 Uym. 2«4—nnder Richard in. 12 Rym. 2S2, 344—under Henry VIII. 12 Rym. 26. 31.

(n) To great niece* ; under Edward II. 5 Rym. 575, 844. tojtrst cmuiiw : under Edward II. 5 Hym. 177.

To second and third cousins ; under Edward III. 5 Rym. 729—under Richard II. 7 Hym. 225—under Henry

VI. 10 Rym. 322—under HenryVn. 12 Rym. 629—under queen Elizabeth, Camd. I\nn. A. D. 1582. To

fourth cousins; nnder Henry VII. 12 Rym. 329. To the blood-royal in general; under Richard n. 7 Rym.

787. (o) EU. Plac. Parl. 672. '

(7) A foil report of the arguments of the judges may be seen in State Trials, vol. xi. 296.

(8) [The occasion of this statute was the marriage of Catharine, mother to Henry VI, with

Owen Tudor, a private gentleman. See p. 223.]

(9) In 1793 the was married while in Borne to the Lady Augusta Murray,

without the consent of the crown; and on his return to England caused the marriage to be

celebrated anew. Some question was made whether the marriage act could have any force

beyond the British dominions, and the king directed a suit for the nullity of the marriage to

be instituted. This was done accordingly, and the court of arches declared the marriage

absolutely null and void. Heseltfne »• Lady Murray, 2 Add, 400. This, however, did not put

VOL. I.—19 145 Generated for asbigham (University of Michigan) on 2013-04-29 18:50 GMT / http://hdl.handle.net/2027/nyp.33433008577102 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google