death of the former, or to violate the chastity of either of the latter, are as much high treason as to confpire the death. of the king, or violate the chastity of the queen. And this upon the same reafon as was before given; because the prince of Wales is next in fucceffion 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 inheritable to the crown, on failure of issue male, and therefore more respected [224] by the laws than any of her younger sisters (6); infomuch 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 (7) to the crown is usually made prince of Wales and earl of Chester (8), by special creation, and investi (6) The ftatute 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 princefs royal, yet their chastity is not protected by the statute. (7) This creation has not been confined to the heir apparent, for both queen Mary and queen Elizabeth were created by their father Hen. VIII. princeffes of Wales, each of them at the time (the latter after the illegitimation of Mary) being heir prefumptive to the crown. 4 Hume, 113. Edward II. was the first prince of Wales. When his father had fubdued the kingdom of Wales, he promised the people of that country, upon condition of their fubmiffion, to give them a prince who had been born among them, and who could speak no other language. Upon their acquiefcence with this deceitful offer, he conferred the principality of Wales upon his fecond fon Edward, then an infant. Edward, by the death of his eldest brother Alfonfo, became heir to the crown, and from that time this honour has been appropriated only to the eldest fons or eldest daughter of the kings of England. 2 Hume, 243. (8) Selden tells us, "that the earldom of Chester was once alfo 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 "eldeft fon. But that whole parliament was repealed in the firit "of Hen. IV., although the earldom hath ufually been fince given "with the principality of Wales." Seld. Tit. of Hon. 2. c. 5. f.x... ture (9); but being the king's eldest fon (10), he is by inhe ritance duke of Cornwall, without any new creation.d d 8 Rep. 1. Seld. tit. of hon. 2. 5. (9) That is, by letters patent under the great seal of England. (10) Lord Coke, in the Prince's cafe, in the 8th Report, has exprefsly advanced, that the duchy of Cornwall cannot defcend, upon the death of the king's first-born son, to the eldest then living. But this pofition is beyond all controversy erroneous. Lord Hardwicke, in Lomax v. Holmden, 1 Vef. 294. has obferved, "That "the eldest son of the king of England takes the duchy of Corn"wall as primogenitus; although lord Coke at the end of the "Prince's cafe fays otherwife. 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 the death of Arthur: and this is by a great lawyer, " and who must have looked into it, as he was then attorney or "folicitor general." But this point was folemnly 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 inferted at length in Collins's Proceedings on Baronies, p. 148. In which it was refolved that prince Charles, the king's fecond fon, was duke of Cornwall by inheritance. upon It is more ftrange that lord Coke fhould have fallen into this mistake, as the contrary appears from almost every record upon the fubject. 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 countefs of Huntingdon; and the record states, that because the prince is within age, fo that in law his grant is not effectual to give a fure eftate, he fhall pledge his faith before the king and all the lords of parliament, that when he attains his full age, he shall grant a fure estate against himself and his heirs; and that his three brothers, Thomas, John, and Humphrey, fhall in like manner pledge their faith to confirm the fame cftate, fiiffint aveigne, que Dieux defende, que le dit Duche unques devient en lours mains, if it should so happen, which God forbid, that the faid duchy fhould ever come into their hands, and thereupon they THE rest of the royal family may be considered in two different lights, according to the different fenfes in which the term, royal family, is used. The larger fenfe includes all thofe, who are by any poffibility inheritable to the crown. Such, before the revolution, were all the defcendants of William the conqueror; who had branched into an amazing extent, by intermarriages with the antient nobility. Since the revolution and act of fettlement, it means the proteftant iffue of the princess Sophia; now comparatively few in numthey all made a promise and took an oath to that effect. Rot. Parl. 5 Hen. IV. No. 4. But the second fon would not fucceed to the dukedom, if his eldeft brother left iffue; in that cafe 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 eifnes des rois d'Engleterre, c'est afsavoir, ceux qui ferroient heirs profcheins du roialme d'Engleterre, fuissent ducs de Cornewaile. Rot. Parl. 9 Hen. V. No. 20. In a charter of livery of the duchy by Edw. IV. to his eldeít fon prince Edward, recited in the rolls of parliament, the following fentence is part of the preamble: Filii primogeniti regum Anglie primo nativitatis fuæ die majoris atque perfe&tæ præfumuntur ætatis, fic quod liberationem di&i ducatus eo tunc à nobis petere valeant, at que de jure obtinere debeant, ac fi viginti et unius annorum ætatis plenæ fuiffent. Rot. Parl. 12 Edw. IV. No. 14. From this and from other authorities it follows, that a duke of Cornwall is born of full age, or is fubject to no minority with refpect to his enjoyment of the poffeffions 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 cafe, reported by lord Coke, the question was, whether the original grant to Edward the Black Prince, who was created in the 11th Edw. III. duke of Cornwall, and who was the firft 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 eftablished rules of descent. But notwithstanding it is in the form of a charter, it was held to be an act of the legislaturc. It concludes, per ipfum regem et totum concilium in parliamento. X 3 ber, ber, but which in process of time may poffibly 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 fubjects, and are feldom considered any farther, unless called to the fucceflion upon failure of the nearer lines. For, though collateral confanguinity is regarded indefinitely, with respect to inheritance or fucceffion, yet it is, and can only be regarded within fome certain limits in any other respect, by the natural constitution of things and the dictates of pofitive law.* THE younger fons and daughters of the king, and other branches of the royal family, who are not in the immediate line of fucceffion, were therefore little farther regarded by the antient law, than to give them to a certain degree precedence before all peers and public officers, as well ecclefiaftical as temporal. This is done by the statute 31 Hen. VIII. c. 10. [225] which enacts, that no perfon, except the king's children, fhall presume to fit or have place at the fide of the cloth of eftate in the parliament chamber; and that certain great officers therein named fhall have precedence above all dukes, except only fuch as fhall happen to be the king's fon, brother, uncle, nephew (which fir Edward Coke explains to fignify grandfon or nepos), or brother's or fifter's fon. 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 perfonal rank or dignity. Which made fir Edward Walker complain %, that by the hafty creation of prince Rupert to be duke of Cumberland, and of the earl of Lennox 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 grandfons of the duke of York. INDEED, under the description of the king's children his grandfons are held to be included, without having recourse to * See essay on collateral confanguinity, in Law-tracs, 4to. Oxon. 1771. f4 Inft. 362. Tracts, p. 301. fir Edward Coke's interpretation of nephew: and therefore when his late majefty king George II. created his grandfon Edward, the fecond fon of Frederick prince of Waies deceased, duke of York, and referred it to the houfe of lords to fettle his place and precedence, they certified that he ought to have place next to the late duke of Cumberland, the then king's youngest fon; and that he might have a feat on the left hand of the cloth of estate. But when, on the acceffion of his present majesty, thofe royal perfonages ceased to take place as the children, and ranked only as the brother and uncle, of the king, they also left their feats on the fide of the cloth of eftate: so that when the duke of Gloucester, his majesty's fecond brother, took his feat in the house of peers, he was placed on the upper end of the earls' bench (on which the dukes ufually fit) 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 refolved 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 majefty as king of this realm, even during their father's life . (11). 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 opinion, that this care and approbation extend also to the prefumptive 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 interpofition go no far [226] ther than nephews and niecesm; but examples are not want Lords' Journ. 24 Apr. 1760. Ibid. 10 Jan. 1765. Fortefc. Al. 401–440. under king Edward III., 4 Rym. 392. (11) The authorities and arguments of the two diffenting judges, Price and Eyre, are fo full and cogent, that if this queftion had arifen before the judges were independent of the crown, one would have been inclined to have fufpected the fincerity of the other ten, and the authority of the decifion. See Harg, St. Tr. 11 vol. 295. X 4 ing |