Prince Ernest of Hanover v. Attorney General (1955-1957)

A great-great-grandson of Ernest Augustus, Duke of Cumberland (a descendant of the Princess Sophia), who succeeded to the throne of Hanover in 1837, commenced an action against the Attorney-General to determine whether he was a British subject, having regard to the provisions of the Statute of 1705 (4 & 5 Anne, c. 16).

The statute, after reciting in the preamble that the Crown, on the death of Queen Anne without issue, was limited to the Princess Sophia and her issue, continued " to the end [that] the said " Princess . . . and the issue of her body, and all persons lineally "descending from her, may be encouraged to become acquainted " with the laws and constitutions of this realm, it is just and "highly reasonable, that they, in Your Majesty's lifetime . .. "should be naturalized" and proceeded to enact that "the said " Princess . . . and the issue of her body, and all persons lineally [441] descending from her, born or hereafter to be born, be and shall "be . . . deemed . . . natural born subjects of this Kingdom," Roman Catholics excepted: —

Held that, as the enacting words, though plain and unqualified, produced, when standing alone, results so inconvenient that Parliament must have intended to put some limit to their operation, the generality of their language must be read as being limited by an implication from the words of the preamble to descendants of the Princess born before the death of Queen Anne; the intent being that her immediate successors should be encouraged to become acquainted with the laws and constitutions of the realm.

Powell v. Kempton Park Racecourse Co. [1899] A.C. 143; 15 T.L.R. 266 considered.

By 4 & 5 Anne, c. 10 of 1705, which was intituled " An Act for the naturalization of the Most Excellent Princess Sophia, Electress and Duchess Dowager of Hanover, and the issue of her body," it was provided : " Whereas the Imperial Crown . . . after the . . . death of Your Majesty, [Queen Anne] . . . without issue of your body, is limited by Act of Parliament, to the Most Excellent Princess Sophia . . . grand-daughter of the late King James I, and the heirs of her body, being Protestants . . . and to the end [that] the said Princess . . . and the issue of her body, and all persons lineally descending from her, may be encouraged to become acquainted with the Jaws and constitutions of this realm, it is just and highly reasonable, that they, in Your Majesty's lifetime . . . should be naturalized, and be deemed, taken, and esteemed natural born subjects of England: ... be it enacted . . . that the said Princess . . . and the issue of her body, and all persons lineally descending from her, born or hereafter to be born, be and shall be . . . deemed, taken, and esteemed natural born subjects of this kingdom, as if the said Princess, and the issue of her body, and all persons lineally descending from her, born or hereafter to be born, had been born within this realm of England, any law, statute, matter, or thing whatsoever to the contrary notwithstanding."

The statute further provided for the exclusion of " every person and persons who shall be naturalized by virtue of this Act of Parliament and shall become a Papist or profess the Popish religion."

The statute of 1705 was repealed by the British Nationality Act, 1948, which came into operation on January 1, 1949. That [442] Act provided that every person who was a British subject immediately before that date should become a British citizen thereunder.

The plaintiff, Prince Ernest of Hanover (who was the great-great-grandson of Ernest Augustus, Duke of Cumberland, a son of George III, who, on the accession of Queen Victoria in 1837, succeeded to the throne of Hanover, as by the law of the Kingdom of Hanover succession was only in the male line) commenced this action against the Attorney-General for a declaration that, by virtue of the above statutes, he was a British subject.

Kenneth Diplock Q.C. and R. 0. Wilberforce Q.C. for the plaintiff. The Act of 1705 (which was passed as a result of the Act of Settlement of 1700, which was enacted to ensure Protestant succession to the throne) gives the status of a British subject to the descendants of the Electress Sophia born at any time, and is not limited to those who were born in the lifetime of Queen Anne. The nationality of the plaintiff was British at the time when the Act of 1705 was in force, and has not been affected by the repeal of the statute by the Act of 1948.

As to the history of nationalization, see the Act of 25 Edw. 3. stat. 1, and 7 Jac. 1, c. 2. With regard to the meaning of " issue " in 1705, see Holland v. Fisher [(1662) O.Bridg. 181, 214.] and Warman v. Seaman [(1675) Pollexfen 112.]. Prima facie the word " issue " in 1705 meant "descendants." but it was capable of having a more restricted meaning if the context so required.

When the British Nationality and Status of Aliens Act, 1914, was passed, many statutes, including 25 Edw. 3, stat. 1, were repealed, but the Act of 1705 remained in force until repealed by the British Nationality Act, 1948. Until 1948 the Act of 1705 covered all lineal descendants of the Electress, of whom at the present time there are upwards of 400 persons.

The Act must be construed in the light of the position in 1705, when the country was greatly in favour of Protestant succession and in fear of the Old and Young Pretenders. (See the long preamble to the Act of 12 & 13 Will. 3, c. 2.) The death of the Duke of Gloucester (who was born in 1689) in 1700 caused the hopes of a Protestant succession to be imperilled. The Act of 1705 was not merely concerned with the 70-year-old Electress, but with anyone on whom the Crown might descend. It must be construed in its historic context. No plainer words could have [443] been used to show that it was intended to apply to any person on whom the Crown of England could descend. It is not necessary to look beyond the enacting words " and all persons descended." The intention to cover all generations of lineal descendants of the Electress could not have been expressed more clearly. It was, however, intended to exclude Roman Catholics because they were excluded from succession to the Crown. The words of the statute are plain and unambiguous and cannot be affected by the preamble: Powell v. Kempton Park Racecourse Co. [[1899] A.C. 143; 15 T.L.R. 266.]

The Act of 1705 having remained in force until 1948, and the plaintiff being included in the class of issue of the body of the Electress, he was on January 1, 1949, when the British Nationality Act came into operation, a British subject under that Act.

Sir Reginald Manningham-Buller Q.C., A.-G., and Bryan Clauson for the Attorney-General. The court is asked to find that the Act of 1705 made all the 400 odd descendants British subjects. That was not the intention or the effect of the statute. There is nothing to indicate that, at that time, Parliament meant to make remote descendants British subjects.

The Act of Settlement uses the expression " heirs of the " body," which is narrower than " issue of the body " or " issue. " [Reference was made to Stroud's Judicial Dictionary, vol. 2, for a definition of " heirs of the body."] The intention of the Act was to provide for succession, but Parliament was not concerned with persons who were not likely to be successors. The preamble to the Act of 1705 affords useful guidance as to the intention of that statute: Craies on Statute Law, 5th ed., p. 188. It was not the intention of the preamble that the general words should have the effect for which the plaintiff contends. The effect of the statute may be stated as follows: " We want to nationalize " those persons who are now alive and who become alive during "Her Majesty's lifetime." The phrase "nationalization in the "lifetime of Her Majesty" means nationalization of a person alive in the lifetime of Her Majesty. It cannot have been the intention that all her descendants should be nationalized; that was not necessary for the purposes of the Act. The words " in "Her Majesty's lifetime " are the vital words—the Act does not nationalize anyone born after the death of Queen Anne.

Diplock Q.C. in reply. The repeal of the Act of 1705 cannot affect its construction as applying to the plaintiff. The preamble does not cut down the clear words of the enacting part of the [444] statute. [Reference was made to Maxwell on Interpretation of Statutes, 10th ed., p. 46, and to Mace v. Cadell [(1774) 1 Cowp. 232.]. The plain language of the Act shows that the intention of Parliament was that all descendants, other than Roman Catholics, were, until the Act was repealed, to be British subjects.

March 1.
Vaisey J.
The plaintiff in this action is H.R.H. Prince Ernest Augustus of Hanover, who contends, and asks the court to declare, that he is a British subject under the combined effect of two Acts of Parliament. These are, first, the Act 4 & 5 Anne, c. 16 (otherwise c. 4), passed in the year 1705, and intituled " An Act for the naturalization of the Most Excellent Princess Sophia, Electress and Duchess Dowager of Hanover, and the issue of her body " (I will refer to it as the Act of Anne); and, secondly, the British Nationality Act, 1948, which came into force on January 1, 1949.

The defendant is Her Majesty's Attorney-General who, while disclaiming any hostility in his attitude to the plaintiff, puts him to proof of his contention, and has assisted the court by advancing or suggesting arguments against it. The case is one of considerable difficulty. There is, on the one hand, in the plaintiff's favour, the apparently clear and unambiguous terms of the enacting provisions of the Act of Anne. On the other hand, the consequences of a literal interpretation and application of those terms are such as to give rise to some serious misgivings as to whether it would be proper so to treat them.

The plaintiff is a descendant of the Electress Sophia, being the great-great-grandson of Ernest Augustus, Duke of Cumberland, the fifth son of King George III. He was born in or near Hanover on March 18, 1914. It is admitted that he is and at all times was of the Protestant religion, and that he is not and never has been a Papist, and has never professed the Popish religion. These expressions are taken from the Act of Anne. There are at the present time a large number of other persons descended from the Electress Sophia and with similar religious associations; the number of such persons is stated to be upwards of 400, and they include members of the royal families of practically every European country. It would therefore seem that my decision in the present case is likely to affect many other persons [445] who would not be technically bound by it. I confess that the case seems to me to be of greater historical interest than it can possibly be of importance either to the plaintiff or to any other person.

It is, I think, convenient for me here to state what I understand to be the plaintiff's actual status according to English law, apart from any question as to his nationality, and I take the following particulars mostly from Burke's Peerage, 1953 ed., pp. xxxiii-xli, cvii, cli and clii. Under or by virtue of the Titles Deprivation Act, 1917, and an Order in Council dated March 28, 1919, the plaintiff's father (1887-1953) was deprived of his right to succeed his (the plaintiff's) grandfather (1845-1923) as Duke of Cumberland and Earl of Armagh; but the plaintiff's title of "Prince of Great Britain and Ireland " was in no way affected by this Act or the said Order in Council, nor was his right to be designated " Royal Highness," and there is now vested in him the right under the provisions of the said Act to petition for his restoration to the Poll of the British Peerage.

It is surely significant that neither in 1917 nor at any other time has any attempt been made to deprive the members of the plaintiff's family of their status as British subjects, if, in fact. they possessed or possess that status, which is, of course, the question which I have now to consider. If they were British subjects in 1917, the omission to deal with the situation arising therefrom certainly suggests that they were not then regarded as British subjects. I should add that the plaintiff's right of succession to the Crown, remote though of course it is, is also wholly unaffected by the Act, and it is indeed pointed out in Burke that, apart from any other cogent arguments, it is a well-settled rule of law that even an attainder, " albeit the blood be corrupted and uninheritable," is automatically void and ended if the person attainted inherits the Crown. It is also pointed out in the same work that under the Act of 1917 and the Order in Council of 1919 the Cumberland peerages have been placed in a position, theretofore unknown in peerage law, of being neither extant, abeyant, dormant or extinct, but (and here was the novelty) merely suspended. The plaintiff is, without question, in the order of succession to the Crown under the Act of Settlement, not only through his paternal ancestry in the line of the Dukes of Cumberland of the creation of George III, but by reason of a nearer, though still very remote, degree of relationship through his mother, who was the daughter of the Kaiser Wilhelm II and, therefore, a great-granddaughter of Queen [446] Victoria. With his British peerages, in existence though in suspense, his position and style as a Prince of Great Britain and Ireland, and his place in the order of succession to the Crown, all undisputed, it is difficult to see what advantage he would gain from being declared to have been a British subject under the Act of Anne, and so to be a British subject today.

Leaving for the moment the preamble and proviso to it; the enacting provision of the Act of Anne reads as follows: [His Lordship read it and continued: ] Now it is, of course, plain that a statute is not impliedly repealed merely by becoming obsolete or by mere non-user, however long the time may have been since it was known to have been actually put into force. See per Dr. Lushington in The India [(1864) 33 L.J.P.M. & A. 193. ] But this principle must, in my judgment, be applied with due regard to the circumstances of the case, and although the word " obsolete " cannot in strictness be applied to any Act of Parliament remaining on the Statute Book, there are undoubtedly statutes still to be found there which would seem only to have been permitted to remain there because their existence has been overlooked. The textbooks give instances of this, such as the Act 13 Car. 2. c. 5, which enacts that everyone commits a misdemeanour who procures the signatures of more than 20 persons to a petition to the King or to Parliament without the previous permission of the justices or the grand jury, " which " (said Sir James Stephen's Digest of Criminal Law (1877 ed.), p. xxxi) " obviously exists " only because it is forgotten."

There is, I understand, no record of the Act of Anne ever having been put into any practical operation or referred to or relied on or regarded as relevant in any way and, as was said by Lord Kenyon in Leigh v. Kent [(1789) 3 Term Rep. 362.]: " where the words of an Act of Parliament are plain, it cannot be repealed by the non-user, yet where there has been a series of practice, without any exception, it goes a great way to explain them where there is any ambiguity." Many examples of statutes effete or forgotten, though remaining on the Statute Book, are to be found in the textbooks; for instance, trial by battle was still in force in 1819, and drawing and quartering was still part of the sentence for treason until 1870. And, as usage is a good interpreter of law, so non-usage lays an antiquated Act open to any construction weakening or even nullifying its effect. Such considerations as these cannot be excluded in connexion with the Act of Anne.

Turning for a moment to the British Nationality Act, 1948, by which the Act of Anne was repealed, section 12 provides that a person who was a British subject immediately before the commencement of the Act (namely, January 1, 1949) should on that day become a citizen of the United Kingdom and Colonies, subject to certain exceptions which I need not specify, and there is no doubt to my mind (and the Attorney-General admits) that if the plaintiff was a British subject immediately before January 1, 1949, he did in fact on that date become and now is a British subject under that Act. The question, therefore, which falls to be decided is whether the plaintiff was, or was not, a British subject under the Act of Anne immediately before January 1, 1949. One must just consider, I think, what is involved in the possession of that status. In the first place it involves "allegiance." This, I think, is clear by implication from the proviso of the Act of Anne which enacts that " every person and persons, who shall be naturalized by virtue of this Act of Parliament, and shall become a Papist, or profess the Popish religion, shall not enjoy any benefit or advantage of a natural born subject of England; but every such person shall be adjudged and taken as an alien, born out of the allegiance of the Queen of England, to all intents and purposes whatsoever; anything herein contained to the contrary notwithstanding."

Now " allegiance " is defined in Termes de la Ley as " Such natural or legal obedience which every subject owes to his prince"; and in Joyce v. Director of Public Prosecutions [[1946] A.C. 347; 62 T.L.R. 208; [1946] 1 All E.R. 186] it was held that an alien under the protection of a British passport owes allegiance to the Crown. Again, Sir William Holds-worth, in the article " Constitutional Law " in Halsbury's Laws of England, 2nd ed., vol. 6, p. 530, writes: " It is said that the Crown enjoys the right of recalling subjects from abroad by letters under the Great Seal . . . disobedience thereto formerly rendering the person's property in the realm liable to seizure . . . until the recall was complied with. This prerogative, so far as it is not obsolete, applies, it seems, either in time of war or in time of peace."

Now, when it is remembered that members of every European royal family, with perhaps one exception, are covered by the literal words of the Act of Anne, it is difficult to see how such obligations as these could ever have been intended to apply to so wide a class of persons. No doubt it may be said that such [448] anomalies must occur in every case of dual nationality, but never, I should suppose, on such a large scale and with such surprising consequences as in this case, if the plaintiff's contention is well founded.

At the date of the passing of the Act of Anne there were but seven persons besides the Electress herself who were affected by its provisions. These were her son George, afterwards King George I, born May 28, 1660; his two brothers, born in 1666 and 1674 respectively, and three grandchildren, namely, George Augustus, afterwards King George II, born 1683, Sophia Dorothea, born 1685, his sister, and Frederick William, born 1688, son of a deceased daughter of the Electress.

These being the persons immediately covered by the provisions of the Act, what must have been its intention? Not to secure the Protestant succession, which had already been provided for by the Act of Settlement of 1700 (12 & 13 Will. 3, c. 2). It can only be supposed that it was thought advisable and convenient that any of such then existing persons who might succeed to the throne should do so in possession of the status of British nationality. If such were in fact its purpose, it became at an early date entirely superfluous, when the number of those in the succession who were British subjects by birth had reached such numbers that the succession of an alien-born descendant had become only a remote possibility.

It now becomes necessary to look at the preamble of the Act of Anne and to see whether it throws any light on the matter and, secondly, to consider whether it is legitimate to have recourse to it on a question of construction, notwithstanding the general rule that a preamble cannot be used to control an enactment expressed in clear and unambiguous terms: see Powell v. Kempton Park Racecourse Co [[1899] A.C. 143].

Craies on Statute Law, .5th ed., p. 189, does state that "If very general language is used in an enactment, which it is clear must have been intended to have some limitation put upon it, the preamble may be used to indicate to what particular instances the enactment is intended to apply." And, among other examples given at pp. 189-192 of that work, he cites Brett v. Brett [(1826) 3 Add. 210, 219], where it was held that, inasmuch as it clearly appeared from the preamble, the Act 25 Geo. 2, c. 6, only professed to deal with wills and codicils devising real estate, the expression " any will or codicil " whenever used in the [449] enacting words of the statute did not include a will or codicil bequeathing personalty.

Now the preamble in the present case, after reciting the effect of the Act of Settlement, and after some complimentary words to the Queen, proceeds: "To the end the said Princess Sophia Electress and Duchess Dowager of Hanover and the issue of her body and all persons lineally descending from her may be encouraged to become acquainted with the laws and constitutions of this realm it is just and [highly] reasonable that they in Her Majesty's lifetime (whom God long preserve) should be naturalized and be deemed taken and esteemed natural born subjects of England."

The words " in Her Majesty's lifetime " seem to suggest some temporary purpose in the Act, but the indication is certainly very vague. If these words had followed the words "descending from her," there would have been an end of the plaintiff's case. But, of course, no such transposition is admissible. To the question put to the plaintiff, on the assumption that he establishes his case, " Were you naturalized in the lifetime of Queen Anne? " neither an affirmative nor a negative answer would be otherwise than ambiguous. He would say that in a sense he was, and in a sense he was not. And that leads me rather to the supposition that the main object of the Act was to make sure that whichever of the foreign born and alien-tongued persons who would be proclaimed, crowned and enthroned as the Queen's immediate or next proximate successors, should have already become subjects of England. No doubt the enacting portion of the statute might operate according to its literal expressions to the remotest point of time, but that it had any such far-reaching purpose is very difficult to believe. To suppose that Parliament thought that every descendant, however remote in time or distant in kinship of the Electress, ought to study English law is really rather absurd, however salutary the topic would have been to the immediate successors of Queen Anne. Even in its primary purpose the Act of Anne achieved a very poor measure of success, for it is notorious that King George I never learnt to speak the English language, and is not, I believe, thought to have possessed much knowledge of English law.

There have been plenty of Statute Law Revision Acts since 1861, and the question may naturally be asked why this Act, if it was, in fact, as I consider it was, entirely spent, was not repealed like so many others contemporaneous with it. I think the answer may be that such revising Acts usually contain [450] clauses preserving and safeguarding vested rights, and reluctance may have been felt to the repeal of an Act such as the Act of Anne, which appeared at first sight on one possible construction of it to confer privileges on a large number of persons, whose opinions would have been difficult to discover and whose consent would have been difficult to obtain. It is well known that the descendants of a particular stock may in a fairly brief period of time become almost uncountable. For example, it is said that there are at least one hundred thousand persons in England who can prove descent from King Edward III (see Marquis de Ruvigny's Plantagenet Roll, Mortimer-Percy Volume I. p. xi), and it may not be very long before those who can prove descent from the Electress Sophia will be equally or nearly as numerous. When that event happens, the operation of the Act of Anne would be not merely inconvenient but absurd, and one of the questions which I have tried to consider is whether it had not already reached that point long before January 1, 1949. If over 400 persons, including members of nearly all the Royal Houses of Europe, were already just before January 1, 1949, naturalized by the Act of Anne, it seems to me that at least one provision of the laws of our country had become little short of ridiculous. If, then, the very general language of the Act of Anne was intended to have some limitation put on it, the preamble may surely be used to indicate what that limitation ought to be, and, slight though the indication is, it seems to me that the reference to Queen Anne's lifetime makes the preamble what preambles have been described as being, a " key to the Statute," and indicates that what the legislature was doing was to make sure that every possible successor to the throne within sight, as it were, was ready, as a naturalized Englishman or Englishwoman, to take the Queen's place on her death. I accept the words of Parker C.B. in Ryall v. Rowles [(1750) 1 Atk. 164], where he says that " If the non-restraining the generality of an enacting clause will be attended with an inconvenience, the preamble shall restrain it."

Now I think that if the generality of the enacting clause in the Act of Anne is not restrained, it would lead to a conclusion which would certainly be inconvenient and also, I think, absurd, seeing that an appreciable part of the inhabitants of Europe would be invested without their consent and for the most part without their knowledge with British citizenship. The Act was, [451] in my judgment, not repealed before, because the extent of its application was doubtful and because its repeal might have interfered with vested rights. If I am right in thinking that its application was limited in point of time, i.e., that it did not affect descendants of the Electress born after the death of Queen Anne, there was neither any need to repeal it nor any harm in leaving it on the Statute Book. It was there, in my view, as an interesting historical document and nothing more.

I have come, with a good deal of hesitation, to the conclusion that the enacting words, though unqualified and plain in their meaning, when standing alone, are nevertheless of such a character and produce inevitably such consequences that the legislature must have intended to put some limit on their operation. When once this conclusion is reached, the question arises: what limit? And then one turns to the preamble and one finds (though only, I agree, by implication) that the purpose of the enactment was a purpose to be effected not indefinitely at some future time or times, but in the lifetime of Queen Anno herself, and in consequence I think that the plaintiff is not entitled to the relief which he seeks. Let me say that I have every reason to believe that he, the plaintiff, who was educated at Oxford, is a friend to this country, proud of his long descent as a member of its ancient Royal house, and anxious to assert and emphasize his association with it by establishing, if he could, a right to the status of a British subject. That is an ambition, however, which can, perhaps, be satisfied by other means, which avoid implicating in its consequences a large number of persons who neither want nor would value for themselves the status of British nationality which he claims.

There are other examples of possession of a particular status by persons who are unaware of it or take no interest in it, or choose completely to ignore it. For example, until quite recently, every King's or Queen's Counsel was a Governor of Queen Anne's Bounty, though few of them were aware of the fact. There are also examples of citizenship being conferred on a man and his heirs, an expression which would probably not include all his descendants. I should like here to acknowledge my indebtedness to the courtesy of Professor Arthur Goodhart, who, from his stores of knowledge, both of law and of history, has supplied me with a reference to a letter written by George Washington to the Marquis de Lafayette on December 23, 1784, informing him that he and his heirs male had been made citizens of the State of Maryland, which carried with it the status of national citizenship [452] when the United States Constitution came into force. See the Writings of George Washington, United States Government Printing Office, vol. 28, p. 17, where there is a note that the Marquis de Lafayette was also made a citizen of Virginia. Professor Goodhart tells me that he also knows French citizens who possess American nationality conferred on an ancestor and his descendants.

I mention these matters in order to show that the plaintiff's contentions are not without precedent or support and, indeed, as I have said, the case seems to me to be difficult; but the examples of dual nationality, which undoubtedly do exist, give rise to so many anomalies and sources of confusion that their number ought not to be extended further than is necessary. It is, I think, very significant indeed that, while in the wars 1914-18 and 1939-45 so many of the descendants of the Electress were engaged in hostile operations against this country, nothing at all was done to denationalize those persons and so to regularize their position. If it is wrong to say that the Act of Anne or any other Act has " become obsolete," the necessity for any such statement in the present case does not seem to me to arise, for I construe the Act of Anne in a way which results in saying that its purpose has been fulfilled and its operation brought to an end, and that it is in fact, and in point of law, entirely spent.

I will not dismiss the action but, more conveniently, make a negative declaration that the plaintiff was not, immediately before the coming into force of the British Nationality Act, 1948, a British subject and that he is not now, either by virtue of that Act or otherwise, a British subject, to any intent or for any purpose. I am glad to know that the parties have relieved me from having to say anything about the costs of this action.

Statute—Construction—Preamble. Statute—Construction—Absurdity-Ex post facto.

A great-great-grandson of Ernest Augustus, Duke of Cumberland (a descendant of the Princess Sophia), who succeeded to the throne of Hanover in 1837, started an action against the Attorney-General for a declaration that he was a British subject, having regard to the provisions of the Statute of 1705 (4 & 5 Anne, c. 16, otherwise known as 4 Anne, c. 4).

The Statute, after reciting in the preamble that the Crown, on the death of Queen Anne without issue, was limited to the Princess Sophia and her issue, continued "to the end [that] the said "Princess . . . and the issue of her body, and all persons lineally " descending from her, may be encouraged to become acquainted " with the laws and constitutions of this realm, it is just and " highly reasonable, that they, in Your Majesty's life time . . . "should be naturalized" and proceeded to enact that "the said " Princess . . . and the issue of her body, and all persons lineally " descending from her, born or hereafter to be born, be and shall " be . . . deemed . . . natural born subjects of this Kingdom," papists excepted. Vaisey J. held that the enacting words must be read as limited to descendants of the princess born in the lifetime of Queen Anne: —

Held, (1) that as a matter of construction of the Act of 4 Anne, c. 4, there was nothing in the preamble to that Act and nothing therein, when interpreted in the light of the earlier relevant statutes of 7 Jac. 1, c. 2, and 4 Anne, c. 1, capable of controlling and limiting the plain and ordinary meaning of the material words of the enacting provisions and that the class of lineal descendants of the princess " born or hereafter to be born " meant the class of such descendants in all degrees and without any limit as to time.

The Sussex Peerage Case (1844) 11 Cl. & Fin. 85 and Powell v. Kempton Park Racecourse Co. Ltd. [1899] A.C. 143; 15 T.L.R. 266 considered.

(2) That there was nothing in the authorities which justified the restriction of plain and unambiguous language in a statute years after its passing on account of inconvenience or incongruity discovered ex post facto and, accordingly, that the plaintiff's claim succeeded.

Yates v. The Queen (1885) 14 Q.B.D. 648; sub nom. Regina v. Yates, 1 T.L.R. 193 distinguished.

The Statute 4 Anne, c. 4, of 1705 (in the Statutes of the Realm 4 & 5 Anne, c. 16), which was entitled "An Act for the naturalization of the most Excellent Princess Sophia, Electress and Duchess Dowager of Hanover, and the issue of her body," provided as follows:

" ' WHEREAS the imperial Crown and dignity of the realms of England, France, and Ireland, and the dominions thereto belonging, after the demise and death of your Majesty, our most gracious Sovereign, without issue of your body, is limited by Act of Parliament, to the most Excellent Princess Sophia, Electress and Duchess Dowager of Hanover, granddaughter of the late King James the First, and the heirs of her body, being protestants: And whereas your Majesty, by your royal care and concern for the happiness of these kingdoms, reigns in the hearts and affections of all your people, to their great comfort and satisfaction, and will be a glorious example to your royal successors in future ages: And to the end the said Princess Sophia, Electress and Duchess Dowager of Hanover, and the issue of her body, and all persons lineally descending from her, may be encouraged to become acquainted with the laws and constitutions of this realm, it is just and highly reasonable, that they, in your Majesty's lifetime (whom God long preserve) should be naturalized, and be deemed, taken, and esteemed natural born subjects of England': We your Majesty's most dutiful and loyal subjects, the lords spiritual and temporal, and commons, in Parliament assembled, do most humbly beseech your Majesty that it may be enacted; and therefore be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and the commons, in this present Parliament assembled, and by the authority of the same, that the said Princess Sophia, Electress and Duchess Dowager of Hanover, and the issue of her body, and all persons lineally descending from her, born or hereafter to be born, be and shall be, to all intents and purposes whatsoever, deemed, taken, and esteemed natural born subjects of this kingdom, as if the said Princess, and the issue of her body, and all persons lineally descending from her, born or hereafter to be born, had been born within this realm of England; any [190] law, statute, matter, or thing whatsoever to the contrary notwithstanding.

" II. Provided always, and be it further enacted and declared by the authority aforesaid, that every person and persons, who shall be naturalized by virtue of this Act of Parliament, and shall become a papist, or profess the popish religion, shall not enjoy any benefit or advantage of a natural born subject of England; but every such person shall be adjudged and taken as an alien, born out of the allegiance of the Queen of England, to all intents and purposes whatsoever; any thing herein contained to the contrary notwithstanding."

The statute of 1705 was repealed by the British Nationality Act, 1948, which came into operation on January 1, 1949. That Act provided that every person who was a British subject immediately before that date should become a British citizen thereunder.

The plaintiff, Prince Ernest of Hanover (who was the great-great-grandson of Ernest Augustus, Duke of Cumberland, a son of George III, who, on the accession of Queen Victoria in 1837, succeeded to the throne of Hanover, as by the law of the Kingdom of Hanover succession was only in the male line), started this action against the Attorney-General for a declaration that, by virtue of the above statutes, he was a British subject.

R. O. Wilberforce Q.C. (Kenneth Diplock Q.G. with him) and John Knox for the plaintiff, Prince Ernest of Hanover. If the Prince was a British subject immediately before the British Nationality Act, 1948, came into operation, he remained so thereafter by virtue of the transitional provisions. The sole question is, therefore, whether the Prince was a British subject by virtue of the Statute 4 Anne, c. 4.

By the Bill of Bights, 1688, the succession to the Crown was given to William and Mary and their issue, and, in default, to the Princess Anne, the younger sister of Queen Mary and the younger daughter of James II, and to her issue. By 1700 Queen Mary was dead, William was still on the throne but all Princess Anne's children had died, her son the Duke of Gloucester having died in 1700. The Act of Settlement of that year (12 & 13 Will. 3, c. 2) provided for the Hanoverian succession. The next in succession, in default of issue of Anne, was to be the Princess Sophia, Electress of Hanover, and the heirs of her body. But both the [191] Electress and her son, later George I, were then in Hanover and they did not come to the United Kingdom. There were fears of a Jacobite revival. In 1705 two Acts were passed, 4 Anne, c. 1 and c. 4 (in the Statutes of the Realm 4 & 5 Anne, c. 14 and 16), both designed to facilitate the succession on the death of Queen Anne of the Hanoverian line, having regard to the fact that the seven persons concerned at the time were all foreigners. The Statute 4 Anne, c. 1, was passed to permit the naturalization Bill to be introduced, notwithstanding that the conditions laid down in 7 Jac. 1, c. 2, might not have been complied with. By that Act no Bill for the naturalization of a person over the age of 18 could be exhibited unless the person concerned took the oaths of supremacy and allegiance and took the sacrament within one month of the introduction of the Bill.

By the Statute 4 Anne, c. 4, the lineal descendants of the Electress Sophia were to be deemed to be natural born British subjects. Prima facie the Prince is within the scope of that statute. He is lineally descended from the Princess Sophia through George III, and he is not within the disqualification laid down by section II. He was an alien enemy only whilst the state of war with Germany continued, and though he served in the German army he was conscripted into it. These considerations are not material, however, in seeking to construe the Act, for it must be construed in the light of the intention of Parliament when it was passed and not by reference to events happening some 250 years afterwards. On any view of the scope of the statute Frederick William of Prussia, who was alive when the Act was passed, must have been within it and he too fought against Britain.

It has been sought to restrain the enacting words of the statute by referring to the preamble. But if the operative words of an Act are clear and unambiguous, the sense cannot be restrained by a preamble. Here the words are as clear and precise as possible; they are all-embracing and universal words and are not at all indefinite or ambiguous (as, indeed, Vaisey J. held [[1955] Ch. 440, 451]). Parliament seems to have taken particular care to extend the scope as widely as possible. The words are not " heirs of her body " as in the Act of Settlement, or " issue of her body " simpliciter as in the Statute 4 Anne, c. 1 (words which might be said to be limited in meaning), but " issue of her body . . . lineally descending from her, born or hereafter to be born ..." [192] Plainly the scope was not restricted, as was the Statute of James I, to persons then over the age of 18 and, therefore, although it might be argued that in the Statute 4 Anne, c. 1, which was directed to overcoming the obstacles presented by the Act of James, " issue of her body " might be given a limited meaning having regard to the plain intention of that Act, there was no such reason for limiting the natural meaning of the words used in the Statute 4 Anne, c. 4; nor would a limited meaning be consistent with the words used in the statute. Those wards. are clearly wider than the comparable words in the Act of Settlement and in the Statute 4 Anne, c. 1. They extend to issue of every degree, without limit, and were clearly intended to include all members of the future royal family. The interpretation which it is sought to put on the Act involves reading words in, not merely placing a limitation on the words used. As the words in question are manifestly clear in meaning there is no need to look elsewhere to see whether they might possibly mean something else. A preamble can be called in aid where the operative words are indefinite or ambiguous (that is, fairly capable of more than one meaning): see Craies on Statute Law (1952) 5th ed., p. 189. But, as Lord Davey said in a dissenting judgment in Powell v. Kempton Park Racecourse Co. Ltd. [[1899] A.C. 143, 185; 15 T.L.R. 266], one must not create or imagine an ambiguity in order to bring in the aid of a preamble. The preamble is added after the operative words.

[Sir Reginald Manningham-Buller Q.C., A.-G., intervening. Not at the present time. The preamble to a private bill is certainly not added afterwards, and it is not usual to have a preamble at all with a public bill nowadays.]

Even if the preamble could be called in aid here, it does not clearly restrict the scope of the operative words. The preamble makes it clear that Parliament thought that it was advisable to take action in Her Majesty's lifetime, so that the descendants of the Princess Sophia, not only those born during Her Majesty's lifetime, should not be laid open to the taunt of being foreigners. If nothing else but " heirs of her body " had been used in the later Act, the earlier Act, 4 Anne, c. 1, might have had a limiting effect, but the Statute 4 Anne, c. 4, goes on to refer to lineal descendants; there is nothing contradicting that in the preamble. It does not introduce any limitation of the class of persons, or at any rate not so clear a limitation as would justify a court in cutting down the enacting words, even assuming that regard must [193] be had to the preamble. It is even more difficult to restrain the meaning of the operative part of an Act by the title than by a preamble.

[Sir Reginald Manningham-Buller A.-G. The long title of a bill now confines the scope of a bill in the sense that amendments outside the scope of the title are not considered. It is a fundamental principle, as stated in Maxwell on the Interpretation of Statutes, 10th ed., pp. 1, 2, with reference to the Sussex Peerage case, [((1844) 11 Cl. & Fin. 85] that the construction put on an Act should carry into effect the intention of Parliament.]

The intention of Parliament is, of course, paramount, but the question is what means are legitimate to adopt in arriving at it. Vaisey J. rightly said that regard had to be had to the whole of the Act, but in actuality he went beyond that and took account of extraneous circumstances, including what happened years afterwards, which could not assist him in arriving at the intention of Parliament at the material time. The court is no doubt always impressed with an argument that a particular construction will result in inconvenience or absurdity, but it must have regard to the words used and to any necessary implication from them.

The cases on bankruptcy are not really of any great assistance here; Brett v. Brett [5 (1826) 3 Add. 210. ] was a plain case of interpreting an Act as a whole; it was not really a " preamble " case. In Ryall v. Rolle [6 (1749) 1 Atk. 165.] Lord Hardwicke L.C., [ 7 Ibid. 182] differing from Lord Cowper in Copeman v. Gallant, [(1716) 1 P.Wms. 314] said that the enacting words could be restrained by the preamble. The point was not, however, necessary to the decision in that case.

[Evershed M.E. In a footnote Atkinson says that Lord Hardwicke L.C. [1 Atk. 161, 165] was of the same opinion. In another case, Mace v. Cadell, [(1774) 1 Cowp. 232] it was held that the Act meant exactly what was said and that there was no case for restraining the scope to the case mentioned in the preamble.]

Inconvenience does not mean merely awkward, but something inconsistent with and contrary to the policy of the Act, as gathered both from the preamble and the enacting part of the Act. It is not disputed that in construing an Act one may take into account the convenience or absurdity of rival interpretations, but the fundamental question is what was the intention of Parliament in 1705 in passing the Act: see the Sussex Peerage case, [11 Cl. & Fin. 85]. One [194] cannot argue backwards ex post facto because of an inconvenience arising 250 years later and use that as an argument in favour of a particular construction, unless it can be said that the sort of thing which has happened could not have been intended by Parliament at the time. If the situation which has arisen is something which Parliament could not have thought of at all, then that cannot enter into consideration. The question is, when looked at through the eyes of the Parliament of 1705, is it unreasonable to suppose that that Parliament did not intend that construction? It is submitted that the construction contended for by the plaintiff is not unreasonable because Parliament was legislating not merely for the immediate successor to the throne but for the potential Royal family. It was not legislating for a particular period of time. If it had been suggested to Parliament that the Act so construed might lead to difficulty in the future, it is submitted that Parliament might very well have taken the view that the Act could always be repealed if necessary, or another Act could be passed shutting the class, as was in fact done in 1948. The alternative would have been to specify a limited class which, bearing in mind the slow growth of the Royal family at that time, might very well have seemed to Parliament as being likely to fail, and then further legislation would have been needed. There is no overriding reason compelling the court to say that the submitted construction is so unreasonable that the court should depart from the prima facie intention of the statute.

It is not disputed that this statute may have been overlooked, but that has no bearing on the interpretation. Mere obsolescence or disuse does not affect the validity or construction of an Act. Nor is it possible to hold that an Act has no further effect because it is inappropriate to the times. It was not pleaded or proved that this Act had never had any practical operation; it was merely established that it had not previously come before the courts; Even in the case of the invocation of the trial by battle at the Warwick assizes Parliament had to intervene: see Ashford v. Thornton [(1818) 1 B. & Ald. 405.] and 59 Geo. 3, c. 46 (1819). There is not here any evidence of a practice which would assist the court to place something other than the prima facie interpretation on these words. [Reference was made to British Nationality Act, 1948, ss. 14 (2) and 19, and to Mervyn Jones' British Nationality, Law and Practice, p. 125.]

It is necessary to distinguish between the purpose of an Act and its scope. The fact that this Act was never dealt, with in [195] any Statute Law Revision Act is some indication that it has been regarded as still in force. It is not for the court, in construing an Act, to say that it is an inconvenient Act and accordingly no longer in force. The plaintiff's contention is that the enacting words of the Act are clear beyond doubt and that there is nothing in the preamble to restrain their meaning. The plaintiff is accordingly a British subject by virtue of 4 Anne, c. 4, and this appeal should be allowed.

Sir Reginald Manningham-Buller Q.O., A.-G. and B. J. H. Clauson for the Attorney-General. Vaisey J. was right in the conclusion which he reached, although he may have expressed views on matters which are not relevant to the decision. The only question is as to the construction of the Statute 4 Anne, c. 4. It is agreed that the statute cannot be construed in the light of events occurring many years after it was passed. However, so far as after events would have been reasonably foreseeable when it was passed, they can be taken into account in its construction. It is clear that the intention was to limit the statute's operation to descendants of the Princess born in Queen Anne's lifetime. It is necessary to have in mind the provisions of the earlier Acts, the Bill of Rights and the Act of Settlement. The succession to the throne had been settled before 1705. There was no doubt as to who would succeed to the throne, but, as the law stood, he would not be a British subject. That might cause difficulty. That difficulty was provided for by this Act. There was then no object in legislating for descendants of the princess born after the death of Queen Anne. The Act did not relieve all her descendants from complying with the provisions of 7 Jac. 1, c. 2. Parliament should not be presumed to have passed an Act wider in scope than was required to effect what was desired. It was unnecessary to make the Act operate after the Queen's death. The children of her successor would have been British subjects, since the children of the sovereign are British subjects wherever born. The reason why the words " all persons lineally descending "from her " were added to the words " the issue of her body " was to exclude the possibility that grandchildren or great grandchildren should be held not to be " the issue of her body." The phrase " issue of her body " means children only, and " persons "lineally descended from her " means issue of all degrees. The vital words are " in your Majesty's lifetime." The words cannot be transposed. The plaintiff, who was born in 1914, cannot fulfil the requirements of the Act. The Act 4 Anne, c. 4, must be read in conjunction with 4 Anne, c. 1. The first Act shows what [196] was intended to be the scope of the second. If the preamble to the Act 4 Anne, c. 4, shows what was Parliament's intention, the question is whether that intention should be defeated by the enacting words.

The fundamental question is: what did Parliament intend when it passed this Act? The principle underlying the authorities is that the intention of Parliament is to be determined from construing the whole Act, including the preamble. If the preamble shows an intention to naturalize persons in the lifetime of the Queen, and the enacting words are wider, there is a conflict between the preamble and the enacting words. If absurdity or inconvenience results from giving effect to the wider enacting words, that is a good reason for cutting down the enacting words so as to give effect to the intention as expressed in the preamble. This case resembles Brett v. Brett [3 Add. 210].

The authorities show that where one of two possible constructions of a statute results in absurdity and inconvenience that construction should not be adopted. Parliament cannot have intended to make all the descendants of the Princess British subjects. That would have brought them within the scope of the law of treason, with inconvenient results. The enacting words are not so clear that one cannot turn to the preamble to determine their meaning: Powell v. Kempton Park Racecourse Co. Ltd. [[1899] A.C. 143.]; Caledonian Railway Co. v. North British Railway Co. [(1881) 6 App. Cas. 114]. It is not contended that the preamble controls the Act: Lumsden v. Inland Revenue Commissioners [[1914] A.C. 877; 30 T.L.R. 673.]. When the statute is looked at as a whole there is a conflict between the preamble and section 1. The circumstances in which the Act was passed require that the limited meaning in the preamble should be read into the enacting provisions. The court must endeavour to ascertain what was Parliament's intention when the Act was passed: Sussex Peerage Case [11 Cl. & Fin. 85] ; Yates v. The Queen [(1885) 14 Q.B.D. 648; 1 T.L.R. 193.]. [Reg. v. Clarence [(1888) 22 Q.B.D. 23, 65; 5 T.L.R. 61], and Craies on Statute Law, 5th ed., pp. 67, 130, 186, were also referred to.] In the eighteenth century more importance was attached to the preamble to a statute than in the nineteenth century.

The only reported case in which 4 Anne, c. 4, was considered appears to be Charles Duke of Brunswick v. King of Hanover [(1843) 6 Beav. 1.] [197] when the present point was not considered. The contention that a foreign sovereign cannot be a British subject is not accepted.

Effect should be given to the intention of Parliament, which cannot have been to confer British nationality on the descendants of the Princess for all time. It is no answer to say that Parliament could have rectified that inconvenience by passing another Act.

B. J. H. Clauson, following, referred to Mervyn Jones on British Nationality, Law and Practice, pp. 65, 66, 68.

R. O. Wilberforce Q.G. in reply. It does not appear how the Attorney-General arrives at the intention of Parliament in 1705, whether from a consideration of 4 Anne, c. 1, or from the general probabilities of the case or from an examination of the preamble. The key to 4 Anne, c. 1, lies in 7 Jac. 1, c. 2. That Act only applied to persons who were over 18 years of age. In the case of persons below that age there was no obstacle to naturalization : 4 Anne, c. 1, only deals with persons who were disqualified by the provisions of 7 Jac. 1, c. 2; 4 Anne, c. 4, deals with the issue of the body of the Princess. It is wider in scope than 4 Anne, c. 1. 4 Anne, c. 1, merely removed the obstacle of 7 Jac. 1, c. 2, to the passing of 4 Anne, c. 4.

When considering what was probably Parliament's intention in 1705 there is no reason to limit its intention to dealing with the immediate successors of Queen Anne. In construing the preamble it is not sufficient to find there some indication that the intention was to limit the scope of the Act to persons born in the lifetime of the Queen. That intention must be clear before the preamble can be used to cut down the words of the enacting provisions. The preamble is ambiguous. Where Parliament intended to limit the operation of a statute to limit a class of heirs, it did so in express terms: see the Precedent Act of 1711. None of the authorities cited by the Attorney-General derogate from the Kempton Park case [[1899] A.C. 143]. The cases which he cited can be divided into two classes. First, Yates v. The Queen [14 Q.B.D. 648]; The Queen v. Clarence [22 Q.B.D. 23] and Lumsden v. Inland Revenue Commissioners [[1914] A.C. 877], in which the effect of the preamble to the statute in question was not considered. While we do not object to the doctrine that the inconvenience resulting from one construction of a statute is a factor to be considered, it is submitted that that doctrine must be applied with caution. Secondly, there is [198] Caledonian Railway Co. v. North British Railway Co. [6 App.Cas. 114], where the preamble of the statute was considered. It was there held that the enacting words were capable of alternative meanings. The plaintiff relies on the Kempton Park case [[1899] A.C. 143] and submits that the preamble cannot be used to cut down the enacting provisions of 4 Anne, c. 4, and that this appeal, accordingly, should be allowed.

Evershed M.R.
The Statute 4 Anne, c. 4, which this appeal requires us to construe, is short and should be set out in extenso. [His Lordship read the statute, and continued:] That Act was (among others) repealed by the British Nationality Act, 1948; but the repeal was subject to the provision that every person who was a British subject immediately before the repealing Act came into operation should become a British citizen thereunder.

The plaintiff claims that he is by virtue of the Statute of Anne and the Act of 1948 a British citizen. It is not in doubt that he is in fact a lineal descendant of the Electress Sophia. It is also admitted on the part of the Attorney-General that, if he is otherwise entitled to succeed, he is not disqualified by the terms of the proviso to the Statute of Anne. He was born in the year 1914 and the question in the action is whether, upon its true interpretation, the Act of 1705 is such as to apply to a person coming into existence more than 200 years after the date of its passing.

By the standards of the great majority of the Acts of Parliament which now fall to be considered by the courts, the Act 4 Anne, c. 4, is old and, by the same standards, its form and language are archaic. There are now, as we were informed, some 400 living persons who claim lineal descent from the Electress Sophia of Hanover named in the Act. In the two and a half centuries which separate the year 1955 from the year 1705 the structure of that which we call western civilization has suffered many profound changes. The nations of 1955, the populations which they embrace and the obligations which they demand from their inhabitants, were no doubt in many respects undreamt of in the philosophy of 1705. Moreover, the nation, with which the domains of the Electors of Hanover were absorbed, [199]

has twice in the present century been at war with the United Kingdom, so that the plaintiff, like his father before him, has found himself arrayed in arms against the sovereign to whom he ~ has since his birth (if his claim is well founded) owed the allegiance of a British subject.

The Attorney-General has, however, not relied upon any defence to the plaintiff's claim based on the facts to which I have last referred, or upon the circumstance that, at the date of the coming into operation of the Act of 1948, he was, as an enemy, disabled from having any access to the Queen's courts for the purpose of asserting that he was then a British subject. The Attorney-General also expressly disclaimed before us any argument to the effect that the Statute of Anne ought now, having regard to its antiquity and archaic form, to be so construed as to " whittle down " or minimize the effect which would otherwise flow from its terms.

The question, then, for our decision is one of the meaning which, according to the relevant rules for the interpretation of statutes, should now be given (and which would have been given in the year 1705) to the language which I have already recited. To the problem so simply posed the answer would prima facie appear undoubtedly to be in favour of the plaintiff; for the enacting language of the Statute—" all persons lineally descending from (the Princess Sophia) born or hereafter to be born " ex facie covers clearly the case of a person admittedly so descended and not otherwise disqualified.

But it is the contention of the Attorney-General that the question as I have posed (and answered) it is an over-simplification of the problem; that the true scope and intention of Parliament, discerned from a consideration of certain earlier Statutes in pari materia with the Statute 4 Anne, c. 4, and also (more especially) of the preamble of the Statute of Anne itself, require that the apparently wide signification of the general language used in the enactment should be substantially restricted; and that the right construction of the material words, which I have just quoted from the Act, is such as to limit the class of descendants, conformably with the Parliamentary intention expressed in the preamble, to those descendants born in the lifetime of Queen Anne. The Attorney-General has additionally argued that general words in an enactment will be restricted in order to avoid what would otherwise be an absurd or highly inconvenient result: and the result which would, in the present case, make the Statute of Anne comprehend an ever-increasing [200] class of persons, from one generation to another, in course of time almost impossible of identification, would (it is contended) be not only highly inconvenient and absurd, but would exceed any object which the Act could sensibly have been designed to achieve.

We were referred to numerous authorities illustrative of the principle to be applied in construing statutes. It has, I think, to be conceded that the numerous judicial pronouncements in the books upon the significance of a preamble in interpreting the enacting provisions of a statute disclose at least some variation in emphasis.

I take by way of example two citations from the decision in the House of Lords in Powell v. Kempton Park Racecourse Co. Ltd. [[1899] A.C. 143; 15 T.L.R. 266], where the question (decided affirmatively by a majority of the House) was whether the apparently general words of the Betting Act, 1853, should be limited, in light particularly of the Parliamentary intention as expressed in the preamble, so as to exclude the Act from applying to betting with bookmakers upon the Kempton Park racecourse. Lord James of Hereford, who was of the majority, said [[1899] A.C. 113, 193] that he fully accepted the dictum of Lord Tenterden in Halton v. Cove, [(1830) 1 B. & Ald. 538, 558] which included the following sentence: " Yet on a sound construction of every Act of Parliament, I take it the words in the enacting part must be confined to that which is the plain object and general intention of the legislature in passing the Act, and that the preamble affords a good clue to discover what that object was."

It will be noticed that the language of Lord Tenterden does not (at any rate in terms) appear to require the presence of any ambiguity in the enacting part of the Statute before its ordinary meaning can in such a case be limited. On the other hand, Lord Davey, who dissented from the majority opinion, seems plainly to indicate that words in the enacting part which are themselves clear cannot be restricted so as to accord with the apparent promise of the preamble. He said [[1899] A.C. 143, 185]: " ' Undoubtedly '—I quote from Chitty L.J.'s judgment words with which I cordially agree—' it is a settled rule that the preamble cannot be made use of to control the enactments themselves where they are expressed in clear and unambiguous terms.' But the preamble is a key to the statute, and affords a clue to the scope of the statute when the words construed by themselves without the aid of the preamble are [201] fairly capable of more than one meaning. There is, however, another rule or warning which cannot be too often repeated, that you must not create or imagine an ambiguity in order to bring in the aid of the preamble or recital."

I do not think it necessary to attempt, for my own part, any fresh formulation of the rule proper to be applied. I will assume (as I think Mr. Wilberforce was himself content to assume) that if the scope and purpose of an Act is made plain by reference to other relevant statutes and other admissible matters of context, or by reference to its preamble, or both, then words prima facie of general import in the enacting provisions may be cut down so as to make the Act in its effect correspond with its purpose.

As is stated in the first sentence of Maxwell on the Interpretation of Statutes, 10th ed., pp. 1, 2, with a reference to the Sussex Peerage Case, [(1844) 11 Cl. & Fin. 85, 143] "... the fundamental rule of inter-pretation, to which all others are subordinate, is that a statute is to be expounded ' according to the intent of them that made it.'" The difficulty in cases of this kind is that although a preamble may, in Lord Tenterden's words, provide a "good clue " to what is to follow, Parliament must at least be assumed also to intend what it expressly enacts.

I turn, first, to the other relevant statutes to which we were referred and which provide the context or background for the Statute 4 Anne, c. 4. The accession to the throne of the Prince and Princess of Orange as King William III and Queen Mary II was followed by the passing in 1688 (1 Will. & Mar. sess. 2, c. 2) of " An Act declaring the rights and liberties of the subject and settling the succession of the Crown," later known by its short title of "The Bill of Eights." By this Act, after reciting that " the late King James II by the assistance of divers evil counsellors, judges did endeavour to subvert and and the laws and liberties of and ministers employed by him, extirpate the protestant religion this kingdom," it was provided that the " Crown and Regal Government " should be and continue to " Their said Majesties, [King William and Queen Mary,] and the survivor of them during their lives and the life of the survivor . . . and that after their deceases the said Crown and premises shall be and remain to the heirs of the body of Her Majesty (Queen Mary), and for default of such issue to Her Royal Highness the Princess Anne of Denmark and the heirs of her body, and for default of such issue to the heirs of the body of his said Majesty." The first section also contained [202] a provision excluding altogether from the succession every person who should be reconciled to or hold communion with the See or Church of Rome or should profess the popish religion or marry a papist.

The death of Queen Mary without issue, and the death, also, of Prince William, Duke of Gloucester, the only surviving issue of Princess Anne of Denmark, called for further provision for the settlement of the Crown after the death of the survivor of King William and Princess Anne. There was accordingly passed in the year 1700 (12 & 13 Will. 3, c. 2) " An Act for the further limitation of the Crown and better securing the rights and liberties of the subject," now commonly known as '' The Act of Settlement." Section 1 of this Act provided that the Princess Sophia, Electress and Duchess Dowager of Hanover, and the heirs of her body being Protestants should succeed to the Crown after the King and Princess Anne and in default of issue of either of them.

At the date of the passing of this Act there were living three sons of the Electress Sophia and also three grandchildren. All of them were, however, living, and had always lived, out of England.

It will be seen, as the Attorney-General observed, that sufficient provision had been made for the settlement of the Crown after the deaths of King William and Princess Anne. But, assuming, as no doubt seemed virtually certain, that the Princess Anne would not leave issue, the person to succeed, according to the Hanoverian succession of the Crown, would be or would be likely to be a stranger to these shores and subject, therefore, to the taunt of being a foreigner.

In the course of opening the appeal, Mr. Wilberforce stated that, at the time of the passing of the Act which we have to construe, lively fears were entertained of an attempted restoration on the part of the Jacobite party. The Attorney-General was not prepared so to concede: but however that may be, it is, to my mind, plain enough that the object of the Act 4 Anne, c. 4, was to, provide in advance against the alien taunt and also, no doubt, as the preamble to the Act states in terms, to encourage the family of the Electress Sophia to a better acquaintance with our "laws and constitutions."

In this situation Parliament proceeded accordingly to make provision for the naturalization as English subjects of those persons among whom would be found the successor to the throne upon the death, without issue, of Princess Anne. [203]

But there was upon the Statute Book an Act of King James I (7 Jac. 1, c. 2), which prevented the exhibition of a bill for the naturalization of any person of the age of 18 years or over, unless that person had previously complied with certain conditions as to taking the sacrament and also taking the oaths of supremacy and allegiance. It was obvious that some modification of the Act of James was necessary. No doubt the required modification might have taken the form of a partial repeal of that Act in the proposed Act of naturalization itself. In fact, Parliament proceeded by two steps of which the first, being the prelude to the Act of 4 Anne, c. 4, was an Act, chapter 1 in the same session, entitled " An Act for exhibiting a Bill in this present Parliament for naturalizing the most Excellent Princess Sophia, Electress and Duchess Dowager of Hanover and the issue of her body." As this Act is also short, and was much relied upon by the Attorney-General, it should also be set out at length:

" WHEREAS the most Excellent Princess Sophia, Electress and Duchess Dowager of Hanover, and the issue of her body, are to be naturalized, and by reason of their being beyond the seas, they cannot qualify themselves in order thereto, according to the Act made in the seventh year of the reign of King James the First, which requires every person to receive the Sacrament of the Lord's Supper, within one month before any Bill for naturalization be exhibited, and also take the oaths of supremacy and allegiance in the Parliament House, before his or her Bill be twice read: be it enacted . . . that a bill for the naturalization of the said most excellent Princess Sophia, Electress and Duchess Dowager of Hanover, and the issue of her body, shall and may be exhibited and brought into this present Parliament, and twice read; any law, statute, matter, or thing whatsoever to the contrary notwithstanding."

The Attorney-General has fastened upon the words in the preamble: "... and by reason of their being beyond the seas, "they" (that is, the Electress and the heirs of her body) "cannot qualify, etc." The presence of these words, he argues, is the clue to the scope and intention of the Act, and shows that the general words, " the heirs of her body," in the title of the Act and in its enacting part, must be restricted to those "heirs" then living; and thence he proceeds to the conclusion that the general words in the later Act, chapter 4, which constituted the fulfilment of the promise in chapter 1, must likewise be restricted; for otherwise, the later Act would extend to an [204] area greater than the ground prepared for it and would, to the extent of the excess, be at variance with the Statute of James I

To this argument, however, the terms of the last-mentioned Act themselves provide, in my judgment, a formidable objection. The conditions thereby imposed on naturalization applied in fact (as reference to the Act shows) only to persons of the age of 18 years or over. It was not and could not be suggested as a matter of construction that the effect of the Statute 4 Anne, c. 1, was therefore limited to the heirs of the body of the Electress who were then 18 years old or more. If such had been the intention, it is inconceivable that the reference to the age of 18 years in the Statute of James would have been omitted in its recital in the Statute of Anne. [Though the matter of fact was not precisely gone into, one of her grandchildren was then under the age of 18.] If this is right, it appears clearly to follow that the preamble in this case is not a clue for a limited interpretation of the enactment. In other words, if the class of persons whose later naturalization was forecast is not, on any view, to be limited to those specifically affected by the Statute of James, then there seems no compelling reason against giving to the words " the heirs of her body " their natural effect; treating the preamble as no more than a reference to the justification of the Statute—for the reason that some of the class of persons intended to be naturalized were or might be affected by the conditions of the earlier Statute.

There is, to my mind, a further and by no means negligible objection to the Attorney-General's argument. If his view of the limited scope of the Statute 4 Anne, c. 1, be accepted, still, on his own argument, the scope of the second Statute, chapter 4, extends further; for it covers not only the issue of the Electress living at the time but all further issue thereafter to be born in the lifetime of Queen Anne, a period that might have extended for 30 or 40 years. To that not unsubstantial extent, therefore, the Statute would present an apparent inconsistency with the Statute of James. I add, also, upon this objection (though I am somewhat anticipating my view of the question of absurdity) that the argument for limiting the category of persons to be naturalized loses, to my mind, much of its attractiveness to common sense when the class ceases to be limited to the known and certain number of the living, and becomes one liable to increase during an uncertain and perhaps prolonged period of time.

I have therefore come to the conclusion that reference to the historical context of the relevant Act and to the earlier statutes does not discover or require a restriction of its scope—nor, indeed, provide any clue to the intention of Parliament as expressed in the Act itself. Nor do I think that these earlier statutes can materially influence the important question to which I must now come, of the effect upon the enacting provisions of the Act of the terms of the preamble, and particularly of the words therein, " in your Majesty's life time. "

It was the plaintiff's case that these words meant no more than " now "; and merely served to indicate that, in the view of Parliament in 1705, provision should then be made (i.e., in Queen Anne's lifetime) for the naturalization of the Electress and her descendants.

On the other side it was said that, had such been the purpose of the words, they would have appeared earlier in the recital— which would have read "It is just and reasonable in Your "Majesty's life time that they," etc. By their position, in fact, the words must (as the Attorney-General argues) be related grammatically to the words " should be naturalized "; and that since no person could be naturalized in the lifetime of the Queen unless he or she was then in existence, the import of the words was inevitably to restrict the purpose of the Act, as stated by its preamble, to the naturalization of those members of the class of the lineal descendants of the Electress who should come into being before Queen Anne's death.

For myself, I should feel no hesitation in preferring, as a matter of grammar, the construction suggested by the Attorney-General, if the matter rested as I have stated it; but it does not so rest. The preamble, after the words " be naturalized," continues " and be deemed, taken, and esteemed natural-born subjects of England." If grammatically the words "in your Majesty's life time" are properly related to the words "be naturalized," they should no less, in my judgment, be related to the words which immediately follow, " and be deemed," etc. It is here that, to my mind, the difficulty arises. For whatever else may be said of the scope and meaning of the Act, it is quite certain that its intention cannot have been to limit the effect of the " naturalization " of the persons designated to the period of Queen Anne's life—a result which would quite plainly have defeated its whole object. Notwithstanding, therefore, its grammatical inelegance (as I think), it seems to me [206] impossible to assert that Mr. Wilberforce's construction is not a possibly legitimate interpretation of the effect of the vital words.

I have felt myself accordingly compelled, in spite of my strong first impression of the natural sense and import of the vital words "in your Majesty's life time," to agree with Vaisey J. that the preamble points, at best with an uncertain finger, to the scope and intent of the Act. I further agree with him that the essential words in the enacting part, descriptive of the class of persons affected, are upon their face clear and unambiguous.

Though the class is in the title of the Act referred to (as it had been described in the earlier Statute of the same session) as " the issue of her body " (a general formula capable, at any rate, of being limited to issue in one degree only), the description was expanded in the last sentence of the preamble to " the issue of her body and all persons lineally descending from her " (a formula clearly not capable of such limitation). In the enacting provision the description is (not once only but twice) carried a further stage in emphasis by the addition of the significant words " born or hereafter to be born." The necessary extension of the class to issue of every degree, without limit, is further reinforced in my judgment (if such reinforcement be necessary) by the reference to " future ages " in the preamble itself.

Agreeing, therefore, with the judge upon both essential premises, I am compelled by the rules for the interpretation of statutes to which I have earlier referred, to a different conclusion from that at which he arrived. For, as Mr. Wilberforce contended, the present is, upon these premises, the converse of the case in which words of merely general import can be controlled by a preamble clearly pointing to a specifically restricted Parliamentary intention. For reasons which I have given, the words of the preamble necessarily and exclusively relied upon by the Attorney-General admit, at least, of doubt. On the other hand, the vital language of the enacting provision is not only, upon the face of it, unambiguous but, as I think, cannot be fairly described as that of a merely general formula. On the contrary, it appears to me to be as precise and emphatic as any form of words could be which was apt to describe a class of persons not presently ascertainable.

I conclude, therefore, that, as a matter of construction of the Act 4 Anne, c. 4, there is nothing in the preamble—and, as I have already said, nothing in the preamble interpreted in the light of the earlier relevant statutes—capable of controlling and limiting the plain and ordinary meaning of the material words [207] in the enacting provision. In other words, the class of lineal descendants of the Electress " born or hereafter to be born," designated in the enacting provision, means the class of such descendants in all degrees and without any limit as to time. I add that such an interpretation, together with a similarly unlimited interpretation of the earlier Act 4 Anne, c. 1, not only avoids any conflict in scope between the two Acts but also disposes of any resultant inconsistency between their effect and the continuing provisions of the Statute of James I.

I am disposed to think that, if the matter had rested solely upon the construction of the Act 4 Anne, c. 4, Vaisey J. would have been of the same opinion. But I think that the judge's mind was, in some degree, influenced by consideration of the antiquity of the statute and by the fact that for a great number of years the rights, which it purported (on this view) to confer, do not appear ever to have been asserted. " As usage," said the judge, "is a good interpreter of law, so non-usage lays an antiquated Act open to any construction weakening or even nullifying its effect." [[1955] Ch. 440, 446]

What I might call the " dead letter " argument is undoubtedly attractive; but I have already observed that the Attorney-General expressly disclaimed, before us, any reliance upon it. Vaisey J. was also, as I think, considerably impressed by the second of the arguments presented by the Attorney-General, to which I must now turn, namely, that founded upon inconvenience and absurdity.

"I think," said the judge, [Ibid. 450] "that if the generality of the ' enacting clause ... is not restrained, it would lead to a conclusion which would certainly be inconvenient and also, I think, absurd, seeing that an appreciable part of the inhabitants of Europe would be invested without their consent and for the most part without their knowledge with British citizenship."

Though I venture to think, if I may say so. that the description of the class of persons now constituting the lineal descendants of the Electress Sophia as " an appreciable part of the inhabitants "of Europe" may be something of an overstatement, it is undoubtedly true that a strict ascertainment of all the persons who could now claim the privilege which the Act purported to confer would be an inconvenient matter—particularly having regard to the disqualification imposed by the proviso. Equally it appears, at the least, to be incongruous that persons who are nationals of a country that has twice been engaged in the bitterest [208] conflict with this country in the present century should claim to be, and to have been since birth, citizens of the United Kingdom. But this inconvenience and this incongruity seem to me rather to arise from the effect of the passage of a long period of time upon an Act that was allowed to remain unrepealed than from the effect of the Act itself when it came into operation.

As Mr. Wilberforce observed, it was always open to Parliament to prevent or restrict the inconvenience and the absurdity by the repeal of the Act—as in fact it did in the year 1948. I think, in other words, that the force of the argument ab inconvenienti becomes, upon analysis, but an oblique restatement of the " dead letter " argument which the Attorney-General has disclaimed.

The examples which Vaisey J. derived from Professor Good-hart indicate at least that the notion of conferring citizenship upon a particular individual and his descendants in all degrees is not so absurd as to have found no parallel in other countries. And if, as the Attorney-General's argument must concede, the conferment of citizenship upon a class of descendants liable to increase during a substantial period of time is not open to challenge on the grounds of inconvenience or absurdity, it seems to me illogical to contend that an indefinite prolongation of the period necessarily renders such a provision ineffective on those grounds. True it is, no doubt, that the object to be achieved could with reasonable certainty have been assured without an indefinite prolongation of the period. But it appeared during the argument that, without indulging in extravagant hypotheses, the succession might have devolved upon an alien, if the terms of the Statute were limited so as to comprehend only descendants of the Electress born in the Queen's lifetime.

In support of this part of his case, the Attorney-General cited to us three decisions: Reg. v. Bateman,8 [(1857) 27 L.J.M.C. 95] Yates v. The Queen [(1885) 14 Q.B.D. 618; .1 T.L.R. 193] and Reg. v. Clarence [(1888) 22 Q.B.D. 23; 5 T.L.R. 61]. In my judgment the present case falls far short of the principle which those cases illustrate.

Of the three cases, neither the first nor the third is, in my judgment, authoritative upon the present question. Yates v. The Queen, [14 Q.B.D. 648] however, which was a decision of this court, is much more in point. The question there decided was that the general term, prima facie unequivocal, " criminal prosecutions," was not to be construed in the Newspaper Libel and Registration Act, [209] 1881, as including prosecutions by way of criminal information. By the terms of the Act, the institution of a criminal prosecu-tion " of the character comprehended by the Act required the fiat of the Director of Public Prosecutions. If therefore, criminal informations were covered by the Act, it would follow that the Director of Public Prosecutions would be brought into competition with, if he was not enabled to override, the Attorney-General and even the Queen's Bench Division itself. Such a result would, in the words of Brett M.E., involve " an indecent absurdity," for the avoidance of which the court felt able so to restrict the meaning of " criminal prosecutions " as to exclude criminal informations.

It is to be observed that the absurdity in Yates v. The Queen [14 Q.B.D. 648] became manifest immediately upon the coming into operation of the Act. The general words " criminal prosecutions," if effective according to their ordinary meaning, gave rise necessarily and at once to the conflict.

Cotton L.J. used this language in the course of his judgment¹² [12 Ibid. 660]: "If one sees that by applying the language to something which is not within the mischief contemplated by the Act, it will produce manifest absurdity or inconvenience, then according to the rule of construction which is well known, and for which it is unnecessary to refer to any authority, it is the duty of the court so to construe the general term as not to apply it to that which will have such a result."

The Lord Justice was clearly not contemplating some inconvenience or absurdity which a prophet might forecast as capable of arising in 200 years' time. I read this language as meaning clearly that the inconvenience or absurdity is one which must necessarily and immediately arise from the fact of the Act extending to some subject-matter apparently within the broad scope of the generic terms used, though not within the mischief contemplated by Parliament.

It is in this essential respect that, in my judgment, the present case differs from Yates' case [14 Q.B.D. 648]; for, if the general words in the Statute of Anne be given the wide significance which prima facie they bear, no absurdity or inconvenience thereby became manifest upon the Act coming into operation. No anomaly, no conflict of interest or authority, no difficulty of application arose or could arise upon the Act taking effect. The inconvenience or absurdity (if there be such) arose only from the impact of a long [210] course of events upon a statute permitted to remain upon the Statute Book for more than two centuries.

In my judgment, nothing in any of the cited cases justifies the restriction of plain and unambiguous language in a statute, years after its passing, on account of inconvenience or incongruity discovered ex post facto. It is, in truth, to my mind no more than the " dead letter " argument once again in another guise. In my judgment, accordingly, the argument of the Attorney-General upon this head cannot be sustained; nor does it get any greater vigour by being added to the arguments with which I have already dealt based on the earlier legislation or on the preamble to the Statute.

I have come, accordingly, to the conclusion that the plaintiff was entitled to the declaration which he sought, and that his appeal ought to be allowed.

Birkett L.J.
I have come to the same conclusion. I think that the plaintiff was entitled to the declaration which he sought before Vaisey J. and that by reason of the Statute of Anne of 1705, chapter 4, which has already been read in full by the Master of the Bolls, and by the provisions of the British Nationality Act, 1948, the plaintiff's claim to be a British subject succeeds, and this appeal must accordingly be allowed.

It might be thought that the question to be answered in this appeal could be stated quite simply, although it is notoriously difficult sometimes to answer a simple question. When all is said and done, the question is: Do the provisions of chapter 4 of the Statute of Anne of 1705 apply to the plaintiff? But immediately further questions of some complexity arise, which have already been the subject of acute controversy and of judicial pronouncement.

What are the provisions of the Statute? How are the words of the Statute to be interpreted? Undoubtedly intended to naturalize somebody, were they ever intended by the Parliament of 1705 to naturalize a person in the position of the plaintiff in this action? Can the plaintiff, born some two hundred years after the passing of the Act, claim to be a British subject by reason of its provisions in the year 1955, two and a half centuries after its appearance on the Statute Book? Were the words of the Statute intended to naturalize only those descendants of the Electress Sophia living in the lifetime of Queen Anne? Does not any other conclusion lead to absurd results, which Parliament could never have intended or even contemplated? Must not [211] the enacting words of the Statute be modified by other statutes affecting the position of the Electress Sophia and her descendants, and do not certain words in the preamble to the Statute limit the application of the enacting words?

These are some of the questions raised in this appeal from the judgment of Vaisey J. The judge was clearly troubled by the antiquity of the Act of 1705 and by the attempt to apply its provisions to the plaintiff in the year 1955.

Two passages from his judgment may perhaps be cited on this point, for they show the way in which the judge approached the problem before him. The first passage reads [[1955] Ch. 440, 446]: " Now it is, of course, plain that a statute is not impliedly repealed merely by becoming obsolete, or by mere non-user, however long the time may have been since it was known to have been actually put into force. See per Dr. Lushington in The India (No. 2). [(1864) 33 L.J.P. 193] But this principle must, in my judgment, be applied with due regard to the circumstances of the case, and although the word ' obsolete ' cannot in strictness be applied to any Act of Parliament remaining on the Statute Book, there are undoubtedly statutes still to be found there which would seem only to have been permitted to remain there because their existence has been overlooked." The second passage reads [[1955] Ch. 440, 446]: "Many examples of statutes effete or forgotten, though remaining on the Statute Book, are to be found in the textbooks; for instance, trial by battle was still in force in 1819, and drawing and quartering was still part of the sentence of treason until 1870. And, as usage is a good interpreter of law, so non-usage lays an antiquated Act open to any construction weakening or even nullifying its effect. Such considerations as these cannot be excluded in connexion with the Act of Anne."

The claim of the plaintiff, if valid, rested on the legal effect to be given to the words of a statute, passed some two and a half centuries ago, when Parliament was concerned to naturalize those persons who might succeed to the throne on the death of the Princess Anne without issue, a state of affairs which then seemed virtually certain, the position of the King as a widower, who would not remarry, appearing to be taken for granted. When the Act of 1705 was passed there were seven persons then living who were affected by its provisions: the Electress Sophia herself; her son George, afterwards George I, who was then 45 years old; his two brothers, one aged 39 and the other 31; and [212] three grandchildren, one George Augustus, afterwards George II, then 22 years of age; Sophia Dorothea, aged 20; and Frederick William, aged 17.

The Act of 1705 was not repealed until the passing of the British Nationality Act of 1948, and then it was provided that all those who were British subjects immediately before the passing of the Act of 1948 should continue to be so. In my opinion, the historical setting of the Act of 1705 is extremely important when considering what effect must be given to the actual words of the Statute. It has been described in the judgment of the Master of the Bolls and need not be repeated in detail. But in the 12 years that had passed since the Bill of Rights in 1688 had sought to settle the succession of the Crown, the situation had again become precarious, because of the death of Queen Mary without issue, and the death of the only son of Princess Anne of Denmark. In 1700, therefore, in the Act of Settlement, Parliament further provided for the succession by enacting that the Electress Sophia and the heirs of her body, being protestants, should succeed after the death of William and Princess Anne without issue.

But now that the succession had been provided for in that particular way, it became necessary to cater for the situation that would arise if a foreigner were to succeed to the throne. The Statutes 4 Anne chapter 1 and chapter 4, therefore, concerned the question of naturalization. The Statute of James I, which laid down certain conditions which had to be complied with before a Bill could be presented to Parliament, was dealt with by chapter 1 of the Statute, and chapter 4 is the Statute with which this appeal is immediately concerned.

The argument of the Attorney-General based on chapter 1 of the Statute of 1705 does not seem to have been considered by Vaisey J. at all. That argument was that the words in the preamble to the Act—" Whereas the most excellent Princess

Sophia, Electress and Duchess Dowager of Hanover, and the issue of her body, are to be naturalized, and by reason of their being beyond the seas, they cannot qualify themselves in order thereto, according to the Act ... of James I," etc.—must be read as meaning that only those persons who were then living were intended to be naturalized, and the plaintiff is therefore excluded, because chapter 4 must be similarly confined to persons then living.

The Master of the Rolls has pointed out that the conditions laid down in the Statute of James I only applied to persons of the age of 18 and upwards, and could have no application, for [213] example, to Frederick William, who was the son of a deceased daughter of the Electress Sophia and was born in 1688, and in 1705, therefore, was only 17 years of age.

It seems to me plain that chapter 1 of the Act of 1705 lendsno support to the view that the persons it was intended to naturalize were to be confined to persons then living, as theAttorney-General contended; and chapter 1 of the Statute of 1705 was intended merely to overcome the manifest difficultiescreated by the Statute of James I, which affected some, but not all, of the persons intended to be naturalized by the later enactment, chapter 4.

The Attorney-General placed great reliance on the wording of the preamble to chapter 4 of the Act of 1705: " And to the end the said Princess Sophia, Electress and Duchess Dowager of Hanover, and the issue of her body, and all persons lineally descending from her, may be encouraged to become acquainted with the laws and constitutions of this realm, it is just and highly reasonable, that they, in your Majesty's lifetime (whom God long preserve) should be naturalized, and be deemed, taken, and esteemed natural born subjects of England." He said that these words, particularly the words " in your Majesty's "lifetime," had the effect of restricting the meaning of the words in the enacting words of the Statute to persons living in the lifetime of Queen Anne.

I cannot agree with this view. The enacting words of the Statute are, in my opinion, perfectly plain and unambiguous. They do not need to be modified or explained by the preamble, for, in my view, the preamble is merely saying that what it is intended should be done, as set out in the enacting words, should be done in Her Majesty's lifetime.

Vaisey J. came to the conclusion [[1955] Ch. 440, 451] that the enacting words though unqualified and plain in their meaning, when standing alone, are nevertheless of such a character and produce inevitably such consequences that the legislature must have intended to put some limit on their operation." " When once this conclusion is reached," he continued, " the question arises: what limit? And then one turns to the preamble and one finds (though only, I agree, by implication) that the purpose of the enactment was a purpose to be effected not indefinitely at some future time or times, but in the lifetime of Queen Anne herself, and in consequence I think the plaintiff is not entitled to the relief which he seeks." [214]

It is agreed that the cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention of the Parliament that passed them. The language of the enacting words is clear and the judge found it to be so by his use of the words " unqualified and plain in their meaning." In these circumstances I should have thought that, according to the rules for the construction of statutes, the preamble ought to be disregarded. But it was the consequence of giving the words their plain meaning which made the judge turn to the preamble, because he said that the legislature must have intended to put some limit on their operation.

With great respect, I cannot think that this was applying the recognized rules of construction, for, if the meaning of the words is plain, the consequences are to be disregarded. In the Sussex Peerage case, [11 Cl. & Fin. 85, 143] Tindal C.J., giving the considered advice of the judges to the House of Lords, said: "My Lords, the only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which . passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver. But if any doubt arises from the terms employed by the legislature, it has always been held a safe means of collecting the intention, to call in aid the ground and cause of making the statute, and to have recourse to the preamble, which, according to Dyer C.J., ... is ' A key to open the minds of the makers of the Act, and the mischiefs which they intended to redress.' "

Vaisey J. said that the words of the Statute were such that the legislature must have intended to put some limit on their operation.

In Salomon v. A. Salomon & Co. Ltd. [[1897] A.C. 22, 38] Lord Watson said: " ' Intention of the legislature ' is a common but very slippery phrase, which, properly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it. In a court of law or equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication."

The consequences of applying the plain meaning of the words may produce results in 1955 that are strange and may possibly be inconvenient. In his book entitled For Lawyers and Others, published in 1936, the late Theobald Mathew concluded his chapter on "Royalty and the Law" by quoting the very section of the Act of 1705 with which this appeal is concerned, and asking the question " How many people are aware that the German ex-Emperor is a British subject?" He does not appear to have been troubled by any doubts as to the interpretation or effect of the Act, but was concerned to exhibit one of its curious consequences.

It would be a little strange if, after the passage of two and a half centuries, some curious situations did not arise when applying a statute of such age to a state of affairs in 1955; but in my opinion nothing has arisen to cast doubt upon the intention of Parliament in 1705. It has never been disputed that the plaintiff is a lineal descendant of the Electress Sophia, and that he is in no way disqualified by reason of section 2 of the Act; and in my opinion he plainly comes within the enacting words of the Statute, and at the passing of the British Nationality Act of 1948 he was a British subject and is, therefore, entitled to the declaration for which he asked in the court below and for which he asks here. I would allow the appeal.

Romer L.J.
It appears to me that it is of fundamental importance to bear in mind that the proper construction to place upon the Act of 1705 is precisely the same now as that which would have been attributed to it by a court of construction immediately after it passed into law. The function of the court is to ascertain the intention of Parliament from the language in which that intention was expressed. Due regard must, of course, be had to all relevant circumstances which existed at the time when the Act was passed; but it is no more permissible, in my judgment, in construing a statute than it is in construing a deed, a will or any other written instrument, to arrive at a conclusion as to the meaning of the language used in the light of events which happened afterwards. Foreseeability of probable results may be attributed to the author of any document having regard to circumstances which existed when it was executed, and which were known, or presumably known, to him at the time; but the fact that those results did subsequently occur cannot be accepted as relevant to the interpretation of the language used.

I have ventured to emphasize this point, for, if the construction of the Act for which the plaintiff contends is the right one, it would follow that the German Kaiser Wilhelm II was a British subject and that there are some 400 persons scattered about Europe now who are entitled to British nationality by virtue of this Statute; and it is a little tempting, perhaps, to assume that a construction which leads to such results cannot be the right one. As I have already intimated, however, if the language of the Act requires a certain construction to be placed upon it, that construction can in no way be affected by consequences such as those to which I have referred. The question whether such consequences could reasonably have been foreseen by the legislature in 1705 and the bearing which such question should have upon the construction of the Act are matters relevant to the. alleged absurdity of the enacting clause, if read literally, which I consider hereafter.

I will not reread the Statute, which has already been stated in full in the judgment which the Master of the Bolls has delivered. It is enough to say that the enacting part of the Act brings within its scope, as clearly and plainly as any language could convey, all protestants, either then already born or who might be born at any time thereafter, who could show that they were lineally descended from the Princess Sophia.

Why, then, should effect not be given to this clear expression of parliamentary intention? The answer which the Attorney-General has given to the question may be summarized in brief as follows: The enacting part of the Statute, if taken by itself, would not only go beyond the purpose which Parliament presumably had in mind, but would lead to an absurdity which the legislature cannot have intended; that this not only justifies but compels the court to seek the true intention from material other than the enacting clause itself; that such material is afforded by the preamble, which shows with clarity what Parliament really intended to do; and that, accordingly, the enacting clause should be controlled by the preamble and made to conform to the intention which is therein disclosed.

It appears to me that the Attorney-General's case, as thus formulated, is open to more than one serious objection. The first objection (and it is a formidable one) which stands in his way is to be found in the general proposition that, if the enacting words of the Statute are clear and unambiguous, they cannot be restricted by the preamble. This proposition is supported by high authority and was expounded with precision in some of the [217] speeches which were deliverd in Powell v. Kempton Park Racecourse Co. Ltd. [[1899] A.G. 143] "Two propositions," said Lord Halsbury L.C., [Ibid. 157] " are quite clear—one that a preamble may afford useful

light as to what a statute intends to reach, and another that, if an enactment is itself clear and unambiguous, no preamble can qualify or cut down the enactment." Lord Davey said [Ibid. 185]: 'Undoubtedly'—I quote from Chitty L.J.'s judgment words with which I cordially agree—' it is a settled rule that the preamble cannot be made use of to control the enactments themselves where they are expressed in clear and unambiguous terms.'"

The Attorney-General suggested that the views so expressed are inconsistent with opinions which had earlier been pronounced in the House in Caledonian Railway Co. v. North British Railway Co. [(1881) 6 App.Cas. 114] In my judgment, this criticism is not well founded, for it appears to me that the views which were expressed in that case do no more than support the proposition, which appears in Craies on Statute Law, 5th ed., p. 189, namely, that, if the language of an enactment is not clear, resort may be had to the preamble.

It must, however, be conceded that it is not altogether easy to reconcile the principle as enunciated by Lord Halsbury L.C. and Lord Davey in Powell's case [[1899] A.G. 143] with other judicial observations of great authority and weight (cf., e.g., Lord James of Hereford's speech [Ibid. 189] in the same case); nor does it appear to be in accord with such decisions as that of Sir John Nicholl in Brett v. Brett.²⁶ [(1826) 3 Addams 210]

In these circumstances, although I believe the general principle to be as I have already stated it, I hesitate to say that it is so rigid and of such universal application as to destroy the argument of the Attorney-General, which I have summarized, in limine; and I proceed, therefore, to consider the other reasons why, in my opinion, the argument cannot be accepted.

First, as to the purpose which Parliament had in mind, current surrounding circumstances may, as I have already said, legitimately be taken into account; but, subject thereto, the purpose can only be ascertained from the language of the Act itself. The only extraneous circumstance, which was suggested as having any direct bearing on the matter, was the preliminary Statute 4 Anne, c. 1. The Master of the Rolls has already [218] considered this Act in his judgment, which I have had the advantage of reading. I respectfully agree with what he has said ~ with regard to it, and I only desire to say for myself that as, on any view, the legislature departed in the second Act from the very limited scope which was envisaged by the recital in the first, the only question, as it seems to me, is as to the extent of such departure. I therefore find no assistance, in construing the second Act, from the language of the first.

As regards the suggested absurdity of the enactment clause if taken by itself, it appears to me to be a dangerous doctrine that the courts, when confronted by plain and unambiguous legislative language, should reject it as absurd. It is true that its power so to do is supported by authority. (See Yates v. The Queen [14 Q.B.D. 648]; see also per Sir Thomas Parker L.C.B. and Lord Hardwicke L.C. in Ryall v. Rolle, [(1719) 1 Atk. 165, 174, 182] and per Lord Coleridge C.J. in Reg. v. Clarence. [(1888) 22 Q.B.D. 23, 65]) I cannot but think, however, that if such power in fact be vested in the courts, it should only be exercised in cases that imperatively demand its application; for, apart from the fact that its exercise comes perilously close to legislating, that which seems absurd to one mind may not appear so to another—-as was pointed out by Lord Greene M.R. in Grundt v. Great Boulder Proprietary Gold Mines Ltd. [[1948] Ch. 145, 159; [1945] 1 All E.R. 21]

In any event, however, I see nothing necessarily or inherently absurd in the conception that Parliament was intending to provide in 1705 that all those upon whom the British Crown might subsequently devolve by virtue of the Act of Settlement should become British citizens at birth; and Parliament was presumably alive to the fact that, if the class of persons affected by the Act should become eventually too large, it could be closed by subsequent legislation. It appears to me that a far greater degree of absurdity than that which has been suggested in this case is required to justify the court in departing from clear enacting language, assuming that absurdity does, in itself, afford ground for any such departure.

The next consideration which arises is as to the real meaning of the relevant recital in the preamble, and whether it demonstrates beyond any reasonable doubt an intention which is inconsistent with the enacting clause; for the Attorney-General rightly conceded that the preamble cannot be resorted to for the purpose of controlling the enactment itself unless a definite and [219] unambiguous expression of intention can be collected from its terms.

In my opinion, such cannot be said of the recital upon which reliance is placed. It seems to me that the words " in your Majesty's life time," may have been introduced into the preamble for either of two quite different purposes. The object of their introduction may have been to ensure that only those descendants of the Princess Sophia, who were already born or should subsequently be born in the lifetime of Queen Anne, should come into the operation of the Act. On the other hand, the purpose of the words may have been intended merely to point to the occasion of the Act. I cannot but think, for myself, that if the first of these two purposes was the real one, the draftsman of the Act would have taken the obvious course of inserting after " and all persons lineally descending from her " the words "and born in your Majesty's lifetime." Had this been done, the recital would, as Vaisey J. pointed out, have demonstrated an unmistakable intention to confine the naturalization of Princess Sophia's issue within the limits for which the Attorney-General is now contending; and the fact that this very apparent method of conveying this intention was not adopted raises a considerable doubt in my mind, to put it at its lowest, whether any such intention was present at all.

The matter, however, by no means rests there. If one thing is clear beyond question it is that, whatever the class might be who were to be affected by the Act, the naturalization which was to be thereby conferred was not to be conterminous only with Queen Anne's lifetime, but was to continue operative after her death; and yet, on the recital as it stands, if the words " in "your Majesty's life time" limit the period for conferment of naturalization, so also they limit its duration. In order, therefore, to impute to the recital the effect for which the respondent contends, it would in any case be necessary to introduce such words as " for ever after " between " and " and " be deemed." I am by no means prepared either to supply, or to transpose, words in the recital merely in order to derive an intention which can then be said to be clearly inconsistent with the enacting part of the Act.

Upon the language of the recital itself there is much to be said, in my opinion, for the view that it was introduced for the second of the purposes to which I have earlier referred; and therefore the fact that there may also be much to be said in favour of the first of these purposes can be of no sufficient avail [220] to the respondent upon this point; for ambiguity in the recital is fatal to him.

For the reasons which I have stated, I am unable to attribute to this Act the construction and effect which commended itself to the judge, and I agree with my brethren that the appeal should be allowed.

Present: Viscount Simonds, Lord Normand, Lord Morton of Henryton, Lord Tucker and Lord Somervell of Harrow.

Nationality—Naturalization—Royal family—Statutory naturalization of Princess Sophia and " all Persons lineally descending from Her " —Whether limited to persons bom in Queen Anne's lifetime— Effect of preamble on interpretation of statute—Princess Sophia Naturalization Act, 1705 (4 Anne, c. 4).

Statute—Construction—Preamble. Statute—Construction—Absurdity.

Statute—Construction—Subsequent enactments—Whether relevant in interpreting earlier one.

A great great grandson of Ernest, Duke of Cumberland (a descendant of the Princess Sophia, Electress of Hanover), who succeeded to the throne of Hanover in 1837, sought a declaration that he was a British subject by virtue of the statute of 1705, 4 Anne, c. 4 (other wise known as 4 & 5 Anne, c. 16).

The statute, after reciting in the preamble that the Crown, on the death of Queen Anne without issue, was limited to the Princess Sophia and her issue, continued: "... to the end [that] the said

Princess . . . and the issue of her body, and all persons lineally descending from her, may be encouraged to become acquainted with the laws and constitutions of this realm, it is just and highly reasonable, that they, in Your Majesty's Life Time . . . should be naturalized" and proceeded to enact that "the said Princess . . . and the issue of her body, and all persons lineally descending from her, born or hereafter to be born, be and shall be . . . deemed . . . natural born subjects of this Kingdom ": —

Held that, as a matter of construction of the Act, there was nothing in the Act or its preamble, interpreted in the light of the earlier relevant statutes 7 Jac. 1, c. 2, and 4 Anne, c. 1 (otherwise known as 4 & 5 Anne, c. 14), capable of controlling and limiting the plain and ordinary meaning of the material words of the enacting provisions and that the class of lineal descendants '' born or " hereafter to be born " meant the class of such descendants in all degrees without any limit as to time. Looking at the Act from the point of view of 1705 there was no such manifest absurdity in this construction as would entitle the court to reject it.

Per Viscount Simonds. Assistance may be obtained from the preamble to a statute in ascertaining the meaning of the relevant enacting part, since words derive their colour and content from their context. But the preamble is not to affect the meaning otherwise ascribable to the enacting part unless there be a compelling reason [437] and it is not a compelling reason that the enacting words go further than the preamble indicated.

Powell v. Kempton Park Racecourse Co. Ltd. [1899] A.C. 143; 15 T.L.R. 266 considered.

Decision of the Court of .Appeal [1956] Ch. 188; sub nom. H.R.H. Prince Ernest Augustus of Hanover v. Attorney-General [1955J 3 All E.R. 647 affirmed.

This was an appeal from an order dated November 16, 1955, of the Court of Appeal, whereby the court discharged a judgment dated March 1, 1955, of Vaisey J. and declared that the respondent, H.R.H. Prince Ernest Augustus of Hanover, was, immediately before the coming into force of the British Nationality Act, 1948, a British subject and that he was, by virtue of that Act, a British subject.

The question at issue in this appeal was whether or not the respondent was by virtue of a statute of Queen Anne's reign of 1705 a British subject immediately before the coming into force of the Act of 1948. The Act of 1948 repealed the statute of Queen Anne's reign (which was referred to in Part II of Schedule IV to the Act of 1948 as " the Act of 4 & 5 Anne, c. 16," but was called "4 Anne, c. 4" in the Statutes at Large), but it was conceded by the appellant, the Attorney-General, that, if at the date of the commencement of the Act of 1948 the respondent was a British subject, he remained such by virtue of section 12 (4) of the Act of 1948.

'' An Act for the Naturalization of the Most Excellent Princess Sophia, Electress and Duchess Dowager of Hanover, and the Issue of Her Body.

" WHEREAS the Imperial Crown and Dignity of the Realms of England, Prance, and Ireland, and the Dominions thereto belonging, after the Demise and Death of Your Majesty, Our Most Gracious Sovereign, without Issue of Your Body, is limited by Act of Parliament, to the Most Excellent Princess Sophia, Electress and Duchess Dowager of Hanover, Granddaughter of the late King James the First, and the Heirs of Her Body, being Protestants: And whereas Your Majesty, by Your Royal Care and Concern for the Happiness of these Kingdoms, reigns in the Hearts and Affections of all Your People, to their great Comfort and Satisfaction, and will be a glorious Example of Your Royal Successors in future Ages: And to the End the said [438] Princess Sophia, Electress and Duchess Dowager of Hanover, and the Issue of Her Body, and all Persons lineally descending from Her, may be encouraged to become acquainted with the Laws and Constitutions of this Realm, it is just and highly reasonable, that they, in Your Majesty's Life Time (whom God long preserve) should be naturalized, and be deemed, taken and esteemed natural born Subjects of England: We Your Majesty's most dutiful and loyal Subjects, the Lords Spiritual and Temporal, and Commons, in Parliament assembled, do most humbly beseech Your Majesty that it may be enacted; and therefore be it enacted by the Queen's Most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and the Commons, in this present Parliament assembled, and by the Authority of the same, That the said Princess Sophia, Electress and Duchess Dowager of Hanover, and the Issue of Her Body, and all Persons lineally descending from Her, born or hereafter to be born, be and shall be, to all Intents and Purposes whatsoever, deemed, taken and esteemed natural-born Subjects of this Kingdom, as if the said Princess, and the Issue of Her Body, and all Persons lineally descending from Her, born or hereafter to be born, had been born within this Realm of England; any Law, Statute, Matter, or Thing whatsoever to the contrary notwithstanding. Provided always, and be it further enacted and declared by the Authority aforesaid, That every Person and Persons, who shall be naturalized by virtue of this Act of Parliament, and shall become a Papist, or profess the Popish Religion, shall not enjoy any Benefit or Advantage of a natural born Subject of England; but every such Person shall be adjudged and taken as an Alien, born out of the Allegiance of the Queen of England, to all Intents and Purposes whatsoever; any Thing herein contained to the contrary notwithstanding."

The respondent was a lineal descendant of the Princess Sophia and was not a Papist and did not profess the Popish religion.

The other relevant enactments are fully stated in the opinion of Viscount Simonds.

Sir Reginald Manningham-Buller Q.C., A.-G. and Bryan Clauson for the appellant. The descendants of the Electress Sophia include, or have included, the late Kaiser, the German, Dutch, Danish, Norwegian, Swedish, Greek, Rumanian, Yugoslav and Russian royal families. The effect of the Act of 1705 is and was only to naturalize those lineal descendants of the Electress [439] Sophia who were born in her lifetime. At the passing of the Act she had three sons alive, George (who became George 1), Maximilian William and Ernest Augustus. She had two grand-sons alive at that time, George (who became George II) and Frederick William (later King of Prussia

Prince Ernest of Hanover v. Attorney General

(1955-1957)

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