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guilty of high treason against her: but, in the instance of conjugal infidelity, he is not subjected to the same penal re[223]ftrictions. For which the reason seems to be, that, if a queen

confort is unfaithful to the royal bed, this may debase or bastardize the heirs to the crown; but no fuch danger can be con. fequent on the infidelity of the husband to a queen regnant.

A QUEEN dowager is the widow of the king, and as fuch enjoys most of the privileges belonging to her as queen confort. But it is not high treason to confpire her death, or to violate her chastity, for the fame reason as was before alleged, because the fucceffion to the crown is not thereby endangered. Yet ftill, 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 fir Edward Coke tells us was enacted in parliament in 6 Hen. VI, though the ftatute be not in print (5). But fhe, though an alien born, shall still be entitled to dower after the king's demife, which no other alien is. A queen dowager, when married again to a subject, doth not lose her regal dignity, as peereffes dowager do their peerage when they marry commoners. For Catherine, queen dowager of Henry V, though the 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. And so, the queen dowager of Navarre marrying with Edmond earl of Lancaster, brother to king Edward the firft, maintained an action of dower (after the death of her second husband) by the name of queen of Navarre.

THE prince of Wales, or heir apparent to the crown, and alfo his royal confort, and the princess royal, or eldest daugh

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(5) Mr. Hargrave, in a note to Co. Litt. 133. fays, that no fuch ftatute can be found. Lord Coke there refers to it by 8 Hen. VI. no 7. in 2 Inft. 18. by 6 Hen. VI. n° 41. In Riley's Plac. Parl. it is called 2 Hen. VI.

ter of the king, are likewife peculiarly regarded by the laws. For, by ftatute 25 Edw. III. to compafs or confpire the death of the former, or to violate the chastity of either of the latter, are as much high treafon as to confpire the death of the king, or violate the chastity of the queen. And this upon the fame 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 alfo alone inheritable to the crown, on failure of iffue male, and therefore more refpected [224] by the laws than any of her younger fifters (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 ufually made prince of Wales and earl of Chester (8), by special creation, and investi

(6) This statute perhaps was not meant to be extended to the princess royal when she had younger brothers living, for the iffue of their wives must inherit the crown before the iffue of the princess royal, yet their chastity is not protected by the ftatute.

(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 eldeft fons or eldeft daughters of the kings of England. 2 Hume, 243.

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(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 alfo ordained that it should be given to the "king's eldest fon. But that whole parliament was repealed in the .. first

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ture (9); but being the king's eldest fon (10), he is by inheri tance duke of Cornwall, without any new creation.

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d 8 Rep. 1. Seld. tit. of hon. 2. 5.

"first of Hen. IV, although the earldom hath usually been fince given with the principality of Wales." Seld. Tit. of Hon. 2. c. 5. f. 1.

(9) That is, by letters patent under the great feal of England. (10) The learned Commentator feems to have adopted what I am inclined to think is an error, even in the learned and accurate Selden, who fays, " not only the firft-born fons of the kings of "England, but the eldest living alfo, are dukes of Cornwall;" Tit. of Hon. 2. c. 5. S. 29. and he refers to the prince's cafe in 8 Coke's Reports. But the obfervations in that report, as well as the words of the statute, limit the dukedom of Cornwall to the first-begotten fon of a king of England, and to him only. The words of the statute are, babendum & tenendum eidem duci & ipfius et hæredum fuorum regum Angliæ filiis primogenitis, & dicti loci ducibus in regno Angliæ hæreditarie fucceffuris. And lord Coke, after having enumerated thofe princes who had been dukes of Cornwall before his time, among whom he reckons prince Arthur, proceeds to fay, "Neither was king Hen. VIII, in the life of his father, after the "death of prince Arthur his brother, by force of the said creation "duke of Cornwall; for although he was the fole fon and heir ap"s parent of Hen. VII, yet forafmuch as he was not the first-begotten fon, he was not within the faid limitation; for prince "Arthur was his firft-begotten fon."-But although from this it is manifest that a duke of Cornwall must be the firft-begotten son of a king, yet it is not neceflary that he fhould be born after his father's acceffion to the throne.

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This is a ftrange fpecies of inheritance, and perhaps is the only mode of defcent which depends upon the authority of a statute. In the prince's cafe, reported by lord Coke, the queftion 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 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 lefs than the power of parliament can alter the eftablifhed rules of defcent. But notwithstanding it is in the form of a charter, it was held to be an act of the legislature. It concludes, per ipfum regem et totam concilium in parliamento.

THE

THE reft of the royal family may be confidered in two different lights, according to the different fenfes in which the term, royal family, is ufed. 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 princefs Sophia; now comparatively few in number, but which in process of time may poffibly be as largely diffused. The more confined fenfe 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 refpect: but, after that degree is past, they fall into the rank of ordinary subjects, and are feldom confidered any farther, unless called to the fucceffion upon failure of the nearer lines. For, though collateral confanguinity is regarded indefinitely, with refpect to inheritance or fucceffion, yet it is and can only be regarded within fome certain limits in any other refpect, by the natural conftitution of things and the dictates. of positive 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 ftatute 31 Hen. VIII. c. 10. which enacts that no perfon, except the king's children, [225] fhall prefume to fit or have place at the fide of the cloth of estate in the parliament chamber; and that certain great officers therein named shall have precedence above all dukes, except only fuch as fhall happen to be the king's fon, brother, uncle, nephew (which firEdward Coke' explains to fignify grandfon or nepos) or brother's or fifter's fon. Therefore, after these degrees are paft, peers or others of the blood royal

• See essay on collateral confanguinity, in Law-tracts, 4to. Omon. 1771. f 4 Inft. 352.

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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 Lenox to be duke of that name, previous to the creation of king Charles's fecond fon, James, to be duke of York, it might happen that their grandfons would have precedence of the grandfons of the duke of York.

INDEED, underthe description of the king's children his grandfons are held to be included, without having recourse to 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 Wales deceafed, duke of York, and referred it to the house 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 eftate. But when, on the acceffion of his prefent majesty, thofe royal perfonages ceafed to take place as the children, and ranked only as the brother and uncle, of the king, they alfo left their feats on the fide of the cloth of estate so that when the duke of Gloucester, his majefty's fecond brother, took his feat in the house of peers', he was placed on the upper end of the earl's 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

g Tracts, p. 301.

b Lords Journ. 24 Apr. 1760.

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i Ibid. 1c Jan. 1765.

k Fortefc. Ai. 401–440.

(11) The authorities and arguments of the two diffenting judges, Price and Eyre, are fo full and cogent, that if this question 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.

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