Ann Lyon: Duchy Originals, Female Heirs and the British Throne

Ann Lyon is a lecturer in law at the Plymouth Law School and author of Constitutional History of the United Kingdom (Cavendish, 2003). ann.lyon@plymouth.ac.uk

There has been much discussion in recent years of amending the Act of Settlement 1701 so that the first child will succeed to the throne rather than the first son - though at the time it was passed it was a pragmatic piece of legislation, and quite advanced, in that it provided for female succession at all. Less attention has been given to how the heir to the throne is supported - but if we want to change the succession, we will need to look at a Royal Patent of 1337 as well as an Act of Parliament of 1701.

The dukedom of Cornwall and the extensive properties of the Duchy - not to mention the profits from Duchy Originals - provide for the heir apparent and his family and have been entailed on the eldest living son of the monarch since 1337. In the absence of a male child, the Duchy's revenues go to the monarchy directly, as in the period when the present Queen was her father's heir. Changing Britain's succession laws would do nothing to change this legal position. If nothing is done, a female heir apparent will find herself with no means of support - and the revenues of the Duchy would go a son who would no longer be first in line to the throne. Duchy Originals' turnover was £2.2 million in 2010 and the Duchy of Cornwall consists of 54,090 hectares of land, so its financial impact is far from small.

For the moment, of course, changing the succession laws would make no difference: both Prince Charles and Prince William are their parents' eldest children. If any change from male primogeniture is to be made, it should be done before William and Kate's first child is born (which, if the precedents of William's own birth and that of his father are followed, may be no more than a year from now). In Sweden, the rules of succession were changed to make King Carl Gustav's daughter Victoria heir apparent after the birth of her brother, Carl Philip: by providing that the change should not affect persons already living, Britain could avoid this experience.

The Act of Settlement is a product of the political and religious context of its time, and has remained substantially unaltered simply because there has been no obvious need to amend it. When Parliament declared that James II had deserted the throne and offered the throne to William and Mary, the Bill of Rights vested the succession in them and their descendants. The succession would then fall to any issue William or Mary might have by later marriages, and then to Mary's younger sister Anne and her issue. William and Mary were childless, but Anne gave birth to an apparently healthy son on 24 July 1689.

Mary II died of smallpox in 1694, leaving no children, and William did not remarry. Anne's son followed Mary to the grave in 1700. James II had given up hopes of his own restoration, but his son James had the active support of Louis XIV of France, whose purposes would be only too well served by having a client king on the thrones of England, Scotland and Ireland. There was thus a very real threat of invasion in support of the younger James, and the civil wars of the 1640s were within living memory. Meanwhile, the death of the Spanish king Carlos II without obvious heirs precipitated a general European war between supporters of the rival candidates. This was what the Act of Settlement was designed to prevent.

The kingdom which had deposed one Catholic monarch had no intention of accepting another, and so Parliament sought a Protestant heir. In order to find one, it was necessary to go back to the descendants of James I - to Sophia Dorothea, widow of the Elector Ernst August of Hanover. Sophia was now aged 70, but in good health, and had four living adult children, together with grandchildren. The Act of Settlement therefore vested the succession in Sophia and her issue, provided they were not 'Papists' and did not marry 'Papists'.

Although contemporary attitudes to gender played a major role in succession laws, it is worth remembering that fears could also be rooted in distinctly practical worries about female rule in the past. Mary, Queen of Scots was a romantic figure, but notably unsuccessful as a ruler, her brief but melodramatic career ending in deposition, flight, and imprisonment and execution. Her rival, Elizabeth I, failed to provide her kingdom with a definite heir, in no small measure because of the problems of marriage for a female ruler. England was fortunate that the accession of James VI of Scots, Mary's son, was not disputed.

Previous practice elsewhere in Europe had allowed female succession only where there were no male heirs. A recent example was Queen Christina of Sweden, who had succeeded her father, Gustavus Adolphus, on his death in 1632 when she was six, refused to consider marriage, and abdicated in 1654 to devote herself to intellectual matters. France, by contrast, forbade the succession of women to the throne and even men whose claim was through a female ancestor. When Henri III died in 1588, his heir, Henri IV, was related to him in the male line only through Louis IX, who had been dead over 300 years.

In Russia, the succession law introduced by Peter the Great allowed each ruler to choose his own successor, and there were four reigning Empresses in the eighteenth century. Monarchical discretion proved unrealistic in practice: Peter himself failed to name a successor, and Anna made the wholly impractical choice of her two-month-old great-nephew, who nominally reigned for two years as Ivan VI until he was deposed by Peter's illegitimate daughter, Elizabeth. A new system was introduced by Paul, far more rigid than the Act of Settlement. Under the Pauline Law an heir must be:

• A male descended from Paul himself
• A member of the Orthodox Church and born to parents who were both Orthodox at the time of their marriage
• Born of an 'equal' marriage, i.e. his mother must be a member of a reigning family

A female would only be a possible heir if there were no surviving males within the Pauline Law.

Though not all European succession laws have imposed strict religious requirements, these certainly existed in practice. The Habsburg rulers of Austria were strongly Catholic, and selected their consorts from other Catholic dynasties, as did the Bourbons of France. Any non-Catholic bride was expected to convert, as was also the case in Spain.

So the Act of Settlement may seem like an anomaly, and it is certainly true that its origins come from a very different period with very different needs. But there is no need to regard Britain as uniquely anachronistic: its rules, like other monarchies, reflect the circumstances of its past. If we want to change them, we had better bear the law of unintended consequences in mind.