The Duchy of Lancaster, unlike the Crown Estate, is legally owned by the reigning monarch as part of the job. This means that if they were to abdicate or the institution of the monarchy were abolished, it would no longer be their property. So how did this come into being? Why is it separate from the Crown Estate? Answer to these questions, and more, below.
Putting aside purely political considerations, this note will investigate the legal and constitutional background to the Duchies – starting with the monarch’s transformation into the embodiment of the state, and the Duchies’ subsequent transformation from private into Crown properties.
A transfer of corporeality
This is an odd thing to grasp in today’s modern world. However, Kings and Queens of old gained legitimacy by claiming to physically embody the state, and in doing so, be the body politic. Their body natural was historically incorporated into the Crown, and the line between private and public ownership and use was blurred.
In Thomas Hobbes’ Leviathan, the state is shown as a body formed of its citizens, surmounted by a king’s head. You may have to look closely to see the detail, but this is illustrated quite literally on the original cover of the book, below (source).
Following the short-lived revolution of Simon de Montfort, who became King and introduced a parliament that would limit the monarch’s powers, his lands in the palatine of Lancashire were appropriated on a private level to the monarch’s younger son. Estates from other landowners were also merged into this.
The Duchy of Lancaster was initially in private possession of Henry IV before he ascended the throne. The law was clear in that all personal – body natural – possessions would be merged into those of the Crown. However, with his ‘dignity’, or fortune. As the law then stood its revenues would have merged in those of the Crown immediately on his succession, but his tenure of the Royal dignity being precarious he obtained an Act of Parliament which prevented such merger. In 1399 the inheritance of the lands were formally chartered, that it should be separate from Crown possessions (now the Crown Estate) which meant that it would descend through the monarchical line as a private estate.
However, with the ascension of Edward IV, the Duchy of Lancaster was declared forfeited by the House of Lancaster, and annexed to the Crown, becoming vested in the body politic of the state and Edward IV – but under a separate act of governance than the other inheritances of the Crown. This means that the Duchy could no longer be separated from the ‘office’ of the monarch – united to the Crown.
During the reign of Elizabeth I, there was a debate among judges over whether the monarch held the Duchy in body natural disjoined from the Crown, and not as Edward IV had it, or whether the Duchy remained united to the Crown as in the reign of Edward IV.
The debate was ended following the deemed abdication of James II. Any rights of the Sovereign by descent, in their bodies natural and not politic, ceased, and William III and his successors have since possessed of the Duchy revenues solely in their bodies politic.
During the time of William IV, a surrender of these revenues was suggested. Speaking now in 1830, William IV personally objected and begged for the use of income from the Duchy, claiming the Duchy as:
‘the only remaining pittance of an independent possession … [which had been] … enjoyed by his ancestors during many centuries, as their private and independent estate, … separate from all other his possessions and consequently as his separate personal and private estate, voted in His Majesty by descent from Henry VII in his body natural and not in his body politic as king.’
It must be said here that William IV was not entitled to the Duchy by descent in body natural from Henry VII. William IV only held the Duchy revenues in body politic by his Parliamentary title as King through the Act of Settlement of 1701.
Several years later, the ex-Lord Chancellor, Lord Brougham, spoke in 1837 on the nature of both the Duchy of Cornwall and the Duchy of Lancaster. He mocked the idea that the Duchies were ‘anything like private property’. Instead, he described them as ‘public funds, vested in the Sovereign only as such, enjoyed as Sovereign and in right of the Crown alone, held as public property, for the benefit of the State, and as a parcel of the national possessions’. This was followed by his advocation that the Duchies be transferred to the public, and their administration be placed under ‘the ordinary departments of public service’.
Whilst this path was not taken, it was seen as reasonable by other titled figures. For instance, Sir Samuel Morton Peto advised that the ornamental officers of the Duchy be abolished, and that the Duchies should be brought under public control. Overall, the historical record scorns the idea of the Duchy of Lancaster as an inalienable property right of Elizabeth Windsor or any of her family – separate from the state role that they currently occupy.