Friday, May 9, 2008

Blackstone ss23

"Section 23. Chapter 4 of the Commentaries on the Laws of England, Book 1. - This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information, or to volunteer, please visit: librivox DOT org" "Recording by [your name]" "Commentaries on the Laws of England by William Blackstone (pronounced "Blexstun"), book 1. Chapter 4."

Chapter the fourth.

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. 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 aera[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 capable of making a grant to, and receiving one from, the
emperor. The queen of England hath separate courts and officers
distinct from the king's, not only in matters of ceremony, but even
of law; and her attorney and solicitor general are intitled to a
place within the bar of his majesty's courts, together with the king's
counsel[e]. She may also sue and be sued alone, without joining
her husband. She may also have a separate property in goods as
well as lands, and has a right to dispose of them by will. 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 intitled to an
antient perquisite called queen-gold or aurum reginae; 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,
licences, pardons, or other matter of royal favour conferred upon
him by the king: and it is due in the proportion of one tenth
part more, over and above the intire offering or fine made to the
king; and becomes an actual debt of record to the queen's majesty
by the mere recording 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 intitled 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 reginae[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 revenue of our antient 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 oyl 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 o£
Henry II 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 farther 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 it's 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
antient 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, it's very nature and quantity became then a matter of
doubt: and, being referred by the king to his then chief justices
and chief baron, their report of it was so very unfavorable[w], that
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 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 the 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
antiquarian, endeavour to excite queen Catherine to revive
this antiquated claim.

Another antient 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 observetur, quod rex illum habebit integrum: de balena
vero sufficit, si rex habeat caput, et regina caudam."
reason of this whimsical division, as assigned by our antient records[y],
was, to furnish the queen's wardrobe with whalebone.

But farther: 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. If however the queen be accused of any species of treason,
she shall (whether consort or dowager) be tried by the house
of peers, as queen Ann Boleyn was in 28 Hen. VIII.

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: but, in the instance of conjugal fidelity,
he is not subjected to the same penal restrictions. 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
licence 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. IV, though the statute be not in print. But she, though
an alien born, shall still be intitled 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 Katherine,
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 Katherine queen of England,
maintained an action against the bishop of Carlisle. And so the
queen of Navarre marrying with Edmond, brother to king Edward
the first, maintained an action of dower 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 inheritable
to the crown, in failure of issue male, and therefore more
respected by the laws than any of her younger sisters; 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 crown is usually made prince of Wales and earl of Chester,
by special creation, and investiture; but, being the king's eldest
son, he is by inheritance duke of Cornwall, without any new

The younger sons and daughters of the king, who are not in
the immediate line of succession, are little farther regarded by
the laws, than to give them precedence before all peers and public
officers as well ecclesiastical as temporal. This is done by the
statute 31 Hen. VIII. c. 10. 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[e] explains to
signify grandson or nepos) or brother's or sister's son. 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,
and the care and approbation of their marriages, when
grown up, did belong of right to his majesty as king of this
realm, during their father's life[f]. And this may suffice for the
notice, taken by law, of his majesty's royal family.

"End of Section 23"