CHAPTER VIII.

OF THE ROYAL FAMILY.

THE first and most considerable branch of the royal family of the king of England is the queen consort.

The queen of England is either queen regent, queen consort, or queen dowager. The queen regent, regnant, or sovereign, is she that holds the crown in her own right; as the first, and (as to the form, though not in substance) the second queen Mary, queen Elizabeth, queen Anne,' and her most gracious majesty Queen Victoria. A queen regnant differs in no respect as to powers, prerogatives, rights, dignities, and duties, from a king.2 But the queen consort is the wife of the reigning king, and the law invests her with divers rights and privileges. She is an exempt and distinct person from the king; and may therefore purchase or grant without her husband, which no other married woman in England can do-a privilege which Selden holds to be as ancient as the Saxon era.3 She may also sue and be sued without the king; and Lord Coke informs us, that these privileges are bestowed upon her because "the wisdome of the common law would not have the king (whose continual care and study is for the publick, et circa ardua regni) to be troubled and disquieted for such private and petty causes." The queen consort is also capable of devising and bequeathing her property by last will and testament, without the concurrence of the king5; and receiving a grant from him. She has separate officers distinct from the king: not only a lord chamberlain, master of the horse, and other officers of her household, for purposes of state or ceremony; but an attorney and solicitor-general, who are entitled to a place within the bar with the king's counsel, and prosecute suits at law and in equity for the queen, in the same manner as the king's attorney and solicitor-general do for the crown.

The queen is also exempt from paying toll, and from amercements in

1 Blackst. Com. b. i. c. iv. p. 219.

2 Stat. 1 Mar. I. st. iii. c. i.

449.

And see Reeves, Hist. of Com. Law, vol. iv.

3 Co. Litt. 3 a. 4 Rep. 23. Seld. Jan. Angl. i. 42.

4 Co. Litt. 133 a b.

p. 448,

5 Cruise, Dig. vol. vi. p. 13. tit. 38, c. ii. t. i. § 3.

• Selden, Tit. Hon. i. 6, 7. As to the queen consort's right to be crowned with her husband, see Mr. Brougham's argument before the privy council, Jan. 5, 1821. Lord Brougham's Speeches, vol. i. p. 238.

any court'; but, in general, where the law invests her with no special privilege, she is in the same condition as other subjects, being the king's subject, as not partaking of his sovereign authority.

She has also some pecuniary advantages in the nature of perquisites, which form her a distinct revenue: such as the aurum reginæ, or the queen's share of certain fines paid to the king in consideration of pardons, privileges, and other matters of favour, by him granted; -but on this subject it is unnecessary to detain the reader.2

The most important legal privilege belonging to a queen consort is, that, by the statute 25 Edw. III., it is equally treason 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.

Blackstone informs us, that if 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 Henry VIII.3

The husband of a queen regnant, as prince George of Denmark was to queen Anne, is her subject, and he may commit high treason against her; but in the instance of conjugal infidelity, he is not subjected to the same penal restrictions as the wife of a king. The obvious reason of this difference is, that the maintenance of the lawful succession to the throne depends on the chastity of the king's wife; but with respect to the husband of a queen the case is different.4

The king or queen of England may marry any person that he or she may please, excepting a Roman Catholic; because that is forbidden under pain of forfeiting the crown, by stat. 1 W. and M. st. ii. c. 2.

The history of this country, previous to the reign of her majesty Queen Victoria, affords only two precedents of a married queen regnant,—these are the first queen Mary and queen Anne. With respect to the second queen Mary, we have seen that though her name was in the royal style, and her effigy on the coin of the realm, yet the sole and full exercise of the royal power was only in, and exercised by, king William; she was therefore not properly a queen regnant.

By the stat. 1 Mar. sess. ii. c. 11, the articles of marriage between Philip of Spain and queen Mary are rehearsed and confirmed. And it is enacted, that the queen shall and may only and as sole queen use and enjoy the crown and sovereignty over her dominions, in such large manner in all degrees after the solemnisation of the marriage 1 Co. Litt. 133 a b. Finch, Law, 185.

2 Blackstone (b. i. c. iv.) gives a summary of the old law on this subject.

3 Blackst. Com. b. i. c. iv. p. 223. In the case of queen Caroline the proceeding was by bill of pains and penalties.

✦ Blackst.Com. b.i. c.iv. p. 224., and see Puffendorf, Dr. des Gens, liv. 6. ch. ii. § 5.

as she now hath, without any right, claim, or demand, to be given, come, or grow unto the said prince as tenant of the courtesy of this realm, or by any other means; and also that all letters patent, and other writings made during the said marriage, should be entitled in the name of the said prince and queen, but be signed with the sign manual of the said queen.

Coke informs us, that the style of queen Mary and Philip, who had been created by his father king of Naples and Jerusalem, was as follows:-"Philip and Mary, by the grace of God, king, and queen of England and France, Naples, Jerusalem, and Ireland; defenders of the faith; princes of Spain and Sicily; archdukes of Austria; dukes of Milan, Burgundy, and Brabant; counts of Hapsburg, Flanders, and Tyrol." A new parliament was summoned by writs in that style. King Philip thus participated fully in the royal dignity; and he was therefore more the partner of queen Mary's throne than her subject. But Coke is of opinion, that king Philip being but a "nominative king," was not protected by the statute of treasons, which applies only to a king (or queen) regnant ; and of the same opinion is Lord Hale. Hawkins also says, that a titular king, as the husband of a queen regnant, seems to be within the words, but is clearly not within the meaning of the statute of allegiance, 2 Hen. VII. c. i.3, by which persons are protected who assist a king de facto, or in actual possession of the throne.

The second instance of a married queen regnant is that of queen Anne. She was married before she came to the throne. Her husband was, soon after her marriage, created duke of Cumberland, and he sat and voted in the house of lords. He was afterwards appointed to the offices of generalissimo and lord high admiral, and he sat in the privy council; though it is said that he never took any oaths; and that at the accession of king William, when the privy councillors were sworn, it is expressly stated in the council-book that prince George was not. His royal highness was therefore not a privy councillor, but sat at the board honoris causâ, occupying the place at the queen's right hand. It may be conjectured, that the reason of the prince not being sworn a privy councillor was to avoid any question which might have arisen as to his precedence at the board, under the stat. 31 Hen. VIII. c. x., for placing the lords in parliament and in the council. Yet this supposition is difficult to be reconciled

1 Co. Litt. 7 b. Coke adds, that after the fourth and fifth year of Philip and Mary, Naples was left out of the style, and in the place thereof the two Sicilies put in. Philip became king of Spain in the year 1555.

23 Inst. 6, 7, 8. I. Hale, Pleas of the Crown, 106. 315, 316.

3 Hawkins, Pl. of the C. c. xvii. § 20. Reeves, Hist. of Com. L. vol. iv. p. 132. 4 Smollett, vol. i. p. 181.

with the fact, that he sat in the house of lords as a duke, except on the ground that he could not have sat in that house otherwise than as a peer.

The third instance is that of her majesty the Queen, married to his royal highness prince Albert. That prince is naturalised, and rendered capable of sitting in either house of parliament, and holding any office under the crown, by virtue of the statutes 2 and 3 Vict. c. i. and c. ii.; and soon afterwards her Majesty conferred upon him the style of royal highness. Those acts, however, contain no provision as to the precedence of the prince; and the style of royal highness not conferring any by the common law, his rank as a naturalised Englishman remained that of a knight of the garter, that is to say, after the eldest sons of barons.' Her Majesty was therefore graciously pleased, on the 5th of March, 1840, to ordain and declare, that his royal highness shall, on all occasions, and in all meetings, except where otherwise provided by act of parliament, have, hold, and enjoy place, pre-eminence, and precedence next to her Majesty. The saving in her Majesty's declaration evidently refers to the statute of Henry VIII., regulating the precedence of the lords and officers of state in the House of Lords and the privy council. royal highness was afterwards sworn of her majesty's privy council. It would, however, be difficult to show that the Queen is restrained by that statute from placing prince Albert next to herself at the council-board; because the section 10 of the statute, which is the only one that directly regards precedence in the council-chamber, applies only to certain great officers therein particularly named, who are thereby to rank immediately after the sons, brothers, uncles, grandsons, and nephews of the sovereign.

His

If prince Albert held any one of those offices, the act would, perhaps, require that he should sit according to the rank therein assigned to such office; but the provision that those great officers shall sit above all dukes who are not sons, brothers, uncles, grandsons, or nephews of the sovereign, does not necessarily imply that the Queen's husband, not being a duke, shall not sit above them. There is nothing in the act to prevent the sovereign from giving rank to any one in the council-chamber before his or her relations above mentioned; since the act only requires that they shall precede the lord chancellor and other officers of state, and does not enact that no one shall precede those royal persons. It also seems questionable,

1 Coke says, that a duke, earl, &c. of another kingdom, are not to be sued by those names here. Co. Litt. 16 b. The rank of a foreign prince is only by courtesy. and comitas gentium. A foreign duke, &c. is only an esquire. 7 Rep. Calvin's Case, 30, i.

whether section 10 of the act does any thing more than establish the order in which the officers of state shall rank among themselves in the council-chamber.' If either the former or the latter construction of the stat. 31 Hen. VIII. cap. x. be correct, prince Albert may legally hold the first place in the council-chamber. By stat. 3 & 4 Vict. cap. iii. her Majesty was enabled to settle an annuity of 30,000l. on prince Albert for life, as a provision for his Royal Highness.2

A queen dowager is the widow of the king, and as such enjoys almost all the privileges that belonged to her as queen consort. It is, however, not high treason to compass or imagine her death, nor to violate her chastity, because the succession to the throne is not thereby affected. But Sir Edward Coke tells us, that it was enacted by parliament in the 6 Hen. VI. (though the statute is not in print) that, pro dignitate regali, no man can marry a queen dowager without special license from the king, on pain of forfeiting his lands and goods.3 The statute assigns the following reason: "because the disparagement of the queen shall give greater comfort and example to other ladies of estate, who are of the blood royal, more likely to disparage themselves." The royal marriage-act, stat. 12 Geo. III. cap. ii., does not apply to a queen dowager, unless she is a descendant of the body of king George III., other than the issue of a princess married into a foreign family. Though the king's widow is an alien born, yet she is entitled to dower; a privilege which the law until lately gave to no other alien.1 A queen dowager does not lose her regal dignity by marrying a subject; whereas dowager peeresses forfeit their peerage when they marry commoners; the rule being, that rank which is gained by marriage is lost by marriage. Of this we have a precedent in the case of Catherine queen dowager of Henry V., who married Owen Tudor, a private gentleman, and yet by the name of Catherine queen of England maintained an action against the bishop of Carlisle. And again, the queen dowager of Navarre marrying with Edmond earl of Lancaster, brother to king Edward I., maintained an action of dower (after the death of her second husband) by the name of queen of Navarre. The queen dowager is provided for by an annuity, by way of dower, amounting, in the cases of Queen Caroline, wife of

6

5

1 This construction seems to be supported by Coke, 4 Inst. c. lxxvii. p. 362. 2 See the precedents, Parl. Deb. vol. li. 3d ser. Jan. 24. 1841. Case of Prince George of Denmark, 50,000l. a-year, and 100,000l. if he should survive Queen Anne. 3 2 Inst. 18. Co. Litt. 133 b. (But see ibid. n. I.) Fortesc. Rep. 418.

4 Co. Litt. 31 b.; and note 9. Hale. See stat. 7 & 8 Vict. c. 66. s. 16.

5 Co. Litt. 16 b. "... if she gaineth it by marriage, she loseth it if she marry under the degree of nobility. But if a duchess by marriage marry a baron she remaineth a duchess, because her husband is noble, et sic de cæteris."

6 12 Inst. 50.