Can an unborn baby really inherit the British Crown (and what's that got to do with Game of Thrones?)

Yes, it could have repercussions for Westeros.

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Is the collection of cells currently coalescing into an adorable new cost to the taxpayer in the Duchess of Cambridge’s womb now fifth in the line of succession to the British throne? Or does it have to be born before that can happen?

That, in not so many words, was the question my colleague Stephen asked the Mail on Sunday reporter and noted primogeniture nerd Ned Donovan on Twitter yesterday. My entirely unwanted response was predictably scathing.

Except, as so often happens when I’m being publicly smug about something, it turned out I might be wrong. This isn’t a stupid question at all.

Which is, in itself, pretty stupid.

The rules

Firstly, a line about how succession works. Once upon a time there were all sorts of ways of getting hold of a crown: not just inheritance, but conquest, election by the powerful, nomination by the previous sovereign…. Then there was "prescription", or to put it more plainly, de facto possession – that, to put it more plainly still, meant having the crown and refusing to let go of the bloody thing.

All of this made succession a tricky business – the moment when a kingdom was most at risk of internal conflict as rival parties pushed different candidates. The fact there were so many different sources of legitimacy – parentage, the views of the previous monarch, a great big bloody army – meant that there was sometimes no "right" answer. We think of the Norman Conquest of 1066 as an invasion, which to be fair it was – but it was also a succession crisis that got really, really out of hand.

Gradually over time the rules settled down a bit, to be based, largely, on male-preference primogeniture. In other words, the heir to the throne is the monarch’s eldest living son.

Should the eldest son die before the monarch, and without any kids of his own, next in the line of succession come the monarch’s younger sons. The rule was that only when you ran out of men in the direct line did you consider female candidates. If you run out of heirs altogether, you jump back a generation and start again with the oldest available bloke and his family.  

Still with me? Good.

The state has fiddled with this a bit over the years. The big one was the 1701 Act of Settlement which ruled that the Crown couldn’t pass to either a Catholic or someone married to one.

This not only cut out a whole bunch of plausible candidates with dodgy foreign connections: it also made clear that parliament could regulate that line of succession. So it was that the Cameron government could rewrite the rules again in the 2013 Succession to the Crown Act, which stated that, among those born after 28 October 2011, girls had the same inheritance rights as their brothers and being a Catholic was basically fine.

At any rate, according to the Royal Family’s own website, the line of succession as it stands is as follows:

1. The Prince of Wales (Charles)

2. The Duke of Cambridge (William)

3. Prince George of Cambridge

4. Princess Charlotte of Cambridge

5. Prince Henry of Wales

6. The Duke of York (Andrew)

...and so on, down to:

16. Mrs Michael Tindall, Princess Anne’s daughter, Zara.

Where do the unborn fit into this?

Back to Stephen’s question. At first glance, the idea of the crown passing to an unborn child is patently ridiculous. But in the world of royalty, many things are ridiculous, and that doesn’t stop them happening.

And there are two reasons to think that the child might already be in the line of succession already. One is the Regency Act 1830, in which parliament aimed to settle what would happen on the death of William IV. That ruled that, in the event his heir was under 18 at the time of his death, a regent would rule until they were of age; if no such child existed, the crown would pass to his niece, Princess Victoria.

So far, so straightforward. But the strange thing about that act is that it also ruled that, should William have a posthumous child, the crown would pass to Victoria on his death, and then onto the child at the moment it was born. That child would take precedence over a living breathing heir, even though it was still, at the time of succession, in the womb.

It never happened, of course – but it’s the reason why Victoria’s accession proclamation contained this faintly bizarre caveat:

“…the Imperial Crown of the United Kingdom of Great Britain and Ireland is solely and rightfully come to the high and mighty Princess Alexandrina Victoria, saving the rights of any issue of his late Majesty King William IV, which may be born of his late Majesty’s consort…”

This all sounds ridiculous, except that, half a century later in Spain, it basically happened. King Alfonso XII died in November 1885. His son, Alfonso XIII, wasn’t born until the following May. In the months between, his mother Maria, the heavily pregnant Queen Maria Christina, served as acting head of state and regent for her daughter, the five year old Maria Mercedes.

The thinking seems to have been that there was definitely a Spanish monarch somewhere – the famous phrase, “The king is dead, long live the king” communicates the fact that the new monarch magically takes over the instant the old one dies – but that nobody actually knew who it was. If Maria Christina’s child turned out to be a daughter or died, then it would magically turn out that Maria Mercedes had been queen all along. In the event, he was a son, who came before his big sister in the line of succession – and so, even though there was a slight interregnum, he was always the legitimate heir, and neither Maria features on the official list of Spanish monarchs.

Look, I did tell you this was ridiculous.

The important stuff

So in theory, in the extremely unlikely event that something terrible happens to Charles, and William, and George, and Charlotte, it’s plausible that something similar could happen in Britain today. William and Kate’s third child would be next in line to the throne, but the gap would be covered by some kind of regency (presumably by either Harry or Kate).

In practice, of course, this is absurd, for several reasons. One is that it’s vanishingly unlikely that something that enormously, but specifically, terrible could ever happen to the royal family. Another is that, as stated several million words back, parliament gets a say: any ambiguity would be ironed out there. For what it’s worth, as it stands, the line of succession on the royals’ own website doesn’t include the unborn child.

Nonetheless, there’s another reason we should be concerned about all this: something even more important than the British state. Game of Thrones.

A spoiler, like winter, is coming, so here’s a picture, in case you want to click away now.

Still with us? Good. Here’s another tweet:

Can't believe no-one has done a piece on the GoT ramifications of this. Jon Snow born after Rhaegar & Mad King killed: his claim vs Viserys?

— Greg Callus (@Greg_Callus) September 5, 2017

Jon Snow, we learned in last week’s season finale, is really Aegon Targaryen: the posthumous son of the crown prince Rhaegar Targaryen and his second wife Lyanna Stark.

Except the key word there is “posthumous”. Can JonAegon have been a legitimate heir when he literally hadn’t been born at the time he should have succeeded? Well if Westeros follows the rules of male preference primogeniture then yes, he could. 

In practice, of course, neither he nor any of the other Targaryens got to be king, because the usurper Robert Baratheon had seized the Iron Throne. As things stand, it’s occupied by Queen Cersei, who has no claim at all, except being the last member of that new royal family standing.

I did say there were many ways of getting hold of a crown. In the absence of a parliamentary decree, control of a bloody big army will do the job nicely.

Jonn Elledge is assistant editor of the New Statesman, in charge of day to day running of the website and its sister site, CityMetric. You can find him on Twitter or Facebook.