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LCO 2/6352Lord Chancellor’s Office 3445/35/ Begins : 1949 Royal Marriages Act, 1772 Proposed amendment
of. Note by the Lord Chancellor on the
construction of. BUCKINGHAM
PALACE CONFIDENTIAL My dear Napier You doubtless saw the
leading article entitled "Royal Marriages" in the "Times" newspaper
of last Saturday. Could you, at your
leisure, let me know whether the suggestion at the end of this article
(that
the Royal Marriage Act be amended by the substitution of George V for
George
II) has ever been considered; and whether there would be any
constitutional or
legal objections to such an amendment being made. There is, of course,
no immediate hurry about this. Yours sincerely,
A.
Lascelles
Sir Albert Napier,
KCB., House of Lords. I did indeed see the
leading article entitled "Royal Marriages" in the "Times"
of the 23rd July. I am glad that in your letter of the 25th July you
give me
time to answer your questions. In order to find out whether the
suggestion for
amending the Royal Marriage Act has ever been considered, I must
enquire of the
Home Office and the Privy Council Office.
A.E.A. Napier The Right Honourable Sir Alan Lascelles,
G.G.V.O., K.C.B., C.M.G., M.C. Dear Wagner, I was interested in
your letter on Royal Marriages which Appeared in the "Times" of the
25th July. I notice that you treat the Royal Marriage Act an applying
only to
British subjects, or as being only important in relation to British
subjects. I
had an idea that people who are not British subjects from time to time
apply
for consent to their marriages under the Act, and I should be
interested to
know how the problem can be confined to British subjects.
A.E.A. Napier A. R. Wagner, Esq. Anthony Wagner Queen Aw/NN. The Honourable Sir
Albert Napier, K.C.B.,K.C., House of Lords, S.W. 1. Dear Napier, The implication that
the Royal Marriage Act applies only to British subjects was that of the
Times leader
writer. I did not wish
and should not
be competent to discuss the legal aspect of the matter or the merits of
amending the Act. All I wanted to do was
to question what seemed to me to be a false premise of his argument
namely that
there would now be enormous difficulty in tracing all those descendants
of
George II who were British subjects or even those who were not. But I
think that as a matter of fact (I have not
unfortunately the text before me)
the Act excludes from its provisions descendants of British Princesses
married
to Foreigners. If that is the case, the
great majority of George II's descendants are not affected by it
whether they
be British subjects or not. On the other hand some
few foreigners, namely those descended from George II in the male line,
are
affected by it e.g. the descendants of George III's son, the Duke of
Cumberland. I should be very glad
if you could tell me that I am right in
this understanding of the Act. Yours sincerely, Anthony R. Wagner. Dear Wagner, Many thanks for your
letter of the 29th. July about the Royal Marriage Act. I will write to
you
again if I have anything to say which might interest you. Yours sincerely,
A.E.A. Napier Anthony Wagner, Esq,, Royal Marriage act,
1772. I attach a copy of a
letter that I received from Lascelles. I cannot find any papers which
show
whether the suggestion contained in his letter has ever been
considered. I
wonder if you could at some time let me
know this, and whether in your opinion there would be any
constitutional or
legal objections to such an amendment being made. Sir Eric Leadbitter, C.V.O. Royal Marriage Act,
1772. I attach a copy of a
letter that I received from Lascelles. I cannot find any papers which
show
whether the suggestion contained in his letter has ever been
considered. I
wonder If you could at some time let me know this, and whether in your
opinion
there would be any constitutional or legal objections to such an
amendment
being made. L. S. Brass, Esq.
C.B.E. Privy Council Office, Dear Napier, Thank you for your
letter of August 3rd about the Royal Marriages Act, 1772.
So far as I know the amendment proposed by
the "Times" has not been suggested before. At
the time of the marriage of Princess
Frederica of Brunswick to the then Crown Prince of Greece in 1938, the
Foreign
Office raised semi-officially the question of excluding all foreigners
from the
operation of the Act, and an alteration of the law in some unspecified
way
seems to have been tentatively proposed by Hardinge to Howorth in 1941. For various reasons, neither occasion was
considered propitious for going further into the matter and it was
allowed to
drop. If a change is made
something on the lines suggested by the "Times" would seem to be a
reasonable compromise, but two points which need consideration would
arise in
the case of any amendment of the Act. It
seems not unlikely that the Act might be held to form part of the law
touching
the Succession to the Throne. If so the
assent of the Parliaments of the Dominions would be required under the
Statute
of Westminster. In addition to this, the introduction of legislation
and the
publicity that would follow might draw attention to cases in which the
need for
Consent had been overlooked or ignored. The
only ones of which we have any knowledge affect foreigners. There may,
however, have been others,
and if any descendants were living here or -I
suppose - in the Dominions or Colonies doubts might be raised about.the
legitimacy of the issue of the marriages and the succession to
property.. Yours sincerely,
E.
Leadbitter The Honourable Sir Albert Napier,
K.C.B., K.C., Lord Chancellor's
Department, House of Lords. Thank you for your
letter of the 5th August about the Royal
Marriage Act, 1772. It is useful to have
the warning about the Statute of Westminster and the cases in which the
need
for consent has been overlooked or ignored. I suppose that it
would save Sir
EricLeadbitter, C.V.O. BUCKINGHAM
PALACE
My dear Napier, On the 28th July,
1949, you very kindly undertook to find out for me what the
possibilities are
of amending the Royal Marriage Act of 1772, as proposed in the
"Times" leader of 23rd July, 1949 -namely by substituting the name of
King George V in the Act for that of King George II. I cannot trace any
result of your researches, and if you could now let me have, at your
leisure,
your opinion on the matter I should be very grateful. Yours sincerely,
A.
Lascelles The Honourable Sir Albert Napier,
KCB.,KC., Lord Chancellor's
Office, House of Lords. I am afraid I must
answer your letter of the 24th January in a white sheet. On It is difficult to say
that it would not be an improvement on the present position if the Act
were
amended by the substitution of "King George the Fifth" for "King
George the Second". Leadbitter's points do not seem to be in themselves
insuperable objections. One point for
consideration is how strong the case is for amending the Act instead of
repealing it. We should have to show positively that the proposed
emending Bill
was serving some useful purpose in modern times and was the best way of
obtaining that purpose. I will write to you
again.
A.E.A.N. The Right Honourable Sir Alan Lascelles,
G.C.V.O., K.C.B., C.M.G., M.C. I enclose a copy of a
letter which I wrote to you on At the same time that
I wrote to you I also wrote to Leadbitter and I enclose a copy of his
letter to
me of What do you think I
could usefully tell Lascelles when I write again?
A.E.A.N. Sir Leslie Brass, C.B.E. BUCKINGHAM
PALACE My dear Napier, Since writing my
letter of 24th January and receiving your reply of 25th January, I have
received from the author, Mr Farran, the enclosed reprint of an article
on The
Royal Marriages Act 1772 in the Modern Law Review 1951.
The burden of this is that the Act has no
present application to any member of the Royal Family with the possible
exception of Captain Alexander Ramsay. As I understand it,
his argument is roughly as follows. Under
the exception given in Section 1, 'the issue of princesses who have
married, or
may hereafter marry, into foreign families' are exempted -from the
provisions
of the Act. He contends that the issue
of Princess Charlotte and of Queen Victoria (had she married while
still a
Princess) would have been exempted by this provision: and that the
issue of
Princess Elizabeth and the Duke of Edinburgh are also excluded on the
grounds
that she is a princess who has married into a foreign family,
naturalisation
not being regarded as cutting off the individual from his family. He also argues that all descendants of King
Edward VII and King George V are also exempt, as Queen Alexandra's
forebear
Princess Louise (youngest daughter of George II) married King Frederick
VII of In his final two
paragraphs, he suggests that the Act should be repealed, and new
legislation
substituted, confined to the descendants of King George V.
This would not provide that marriages made
without the consent of the Sovereign should be declared criminal or
void, but
that a descendant making such a marriage should forfeit all title to
the throne
for himself and his issue. Whatever the merits of
this thesis may be, it seems evident that the Act is not well drafted,
- there
being general agreement as to the unworkability of the penal clause
(Section 5)
- and that it may not accord with modern requirements.
It may be of incidental interest to quote Dr
Johnson's opinion of the Bill, - recorded on p. 144 of Vol.II of
Boswell's Life
edited by Croker in 1831 - which I found attached to our copy of the
Act in
Lord Stamfordham's handwriting. The
Doctor is recorded as disapproving of the Bill because 'I would not
have the
people think that the validity of marriage depends on the will of man
or that
the right of a King depends on the will of man. I should not have been
against
making the marriage of any of the Royal Family without the approbation
of King
and Parliament highly criminal'. This
was apparently the position at Common Law before the passing of the Act
(see
note 12 on p.54 of the reprint). Yours sincerely,
A.
Lascelles The Honourable Sir Albert Napier,
KCB.,KC. THE ROYAL
MARRIAGES ACT,
1772 (1)
In 1986 an American divorcee, Mrs. Simpson, brought the Royal Marriages Act to the public notice. Although on that occasion it was probably not applicable, as it is extremely unlikely that it applies to the reigning sovereign,(2) the Act came in for considerable criticism.(3) The purpose of this article is to show that it can be criticised on the fundamental ground that it no longer applies to any member of the Royal family in anything like close proximity to the Crown, if indeed, it now applies to anyone. Early in 1950 another American divorcee, also called Mrs. Simpson, married in America another descendant of George II, the third Marquess of Milford Haven.(4) It appears that no formal consent of the King in Council was given to this marriage.(5) Since it was decided in the Sussex Peerage Case (6) that the mere fact that the marriage took place abroad is not enough to take it out of the statute, the validity of the marriage must depend upon the Marquess coming within the exempting clause, ' other than the issue of princesses who have married, or may hereafter marry into foreign families '.(7) While there can be no possible doubt that he does so, as his descent from King George II is through such a princess,(8) it is suggested that these words of exemption are so loosely drafted that they exclude the majority of the living members of the Royal family from the operative portions of the Act. The Royal Marriages Act was passed—not without protests(9)—at [54] the urgent recommendation of King George III, whose younger brothers had recently made what he considered to be unsuitable marriages,(10) as he feared that his young sons might do even worse.(11) It appears to have been drafted with excessive celerity and insufficient attention to then comparatively remote contingencies, which have, in the writer's view, now occurred. The Preamble recites, ' that marriages in the royal family are of the highest importance to the State, and that therefore the Kings of this realm have ever been entrusted with the care and approbation thereof '.' The statute is, 'more effectively to guard the descendants of . . . King George II . . . from marrying without the approbation of (his) Majesty, (his) heirs and successors, first had and obtained'. Section 1 enacts that ' no descendant of the body of his late Majesty King George the Second, male or female (other than the issue of princesses who have married, or may hereafter marry, into foreign families), shall be capable of contracting matrimony without the previous consent of his Majesty, his heirs or successors, signified under the great seal, and declared in council, (which consent, to preserve the memory thereof, is hereby directed to be set out in the licence and register of marriage, and to be entered in the books of the Privy Council), and that every marriage, or matrimonial contract, of any such descendant, without such consent first had and obtained, shall be null and void to all intents and purposes whatsoever'.
In no respect is the
statute so open to criticism as in the concluding words of this
section.(12) This
high-handed measure, which bastardises the issue of such marriage,
instead of,
as it might well have done, merely declaring them incapable of
succeeding to
the [55] throne, or
even to any
title of honour, was very clumsily drawn by Mansfield, Thurlow and
Wedderburn
'.(13) That bastardisation was in fact the result of the statute is
abundantly
clear on the wording of this section. It was also so held in the Sussex
Peerage
Case.(14) Even the intensely autocratic ruling houses of the Continent
admitted
the validity of an agnate's marriage without the Sovereign's consent,
but such
a marriage, being morganatic, gave no rights of succession to its
issue.(15) Section 2 provides a
loophole of escape for those caught by the previous section, if, being
above
the age of twenty-five years, they wish to persist in (their)
resolution to
contract a marriage disapproved of, or dissented from, by the King'.
They may
in such circumstances give twelve months notice of their intended
marriage to
the Privy Council. If during that time both Houses of Parliament have
not
expressly declared their disapprobation of the intended marriage—which
is
perhaps unlikely—the ceremony may take place and the marriage will be
valid.
The words of the section being in no way qualified, it seems that the
issue of
such a marriage could succeed to the throne. Rather curiously, this
door of
grace does not seem ever to have been employed. Section 3 makes
everyone present at a ceremony in violation of section 1, ipso facto
guilty of
praemunire : ' Every
person who
shall knowingly or wilfully presume to solemnise, or to assist or be
present at
the celebration of any marriage with any such descendant, or at his or
her
making any matrimonial contract, without such consent as aforesaid
first had
and obtained, except in the case above mentioned,(16) shall, being duly
convicted
thereof, incur and suffer the penalties ordained and provided by the
Statute of
Provision and Praemunire made in the sixteenth year of the reign of
Richard the
Second .' (17) In its enthusiasm to outlaw such a marriage and all the parties to it, the legislature would seem to have overreached itself, in that, since everyone present at the ceremony is guilty of a crime, evidence of its having taken place could only come from a police spy provided in advance with a free pardon. No one can be compelled to [56] give evidence which will have the effect of incriminating the witness himself.(18) Consequently, although a number of criminal ceremonies have taken place,(19) no prosecution has ever been instituted so far as can be traced, for the crime created by this section 8.(20) Of course, public opinion would not have countenanced such a proceeding in recent times. But the purpose of this article is not to criticise the provisions of the Royal Marriages Act as they stand, but rather to inquire whether there is now in fact any living person to whom the Act applies. I refer once more to
the exemption given by section 1 (21) to 'the issue of princesses who
have
married, or may hereafter marry, into foreign families '.
Counsel for the petitioner in the
Sussex Peerage Case, Sir T. Wilde,(22) puts
the position thus, ' The Act itself
excepts from its operation the issue of princesses, who have been
married, or
who may marry into foreign families.
This shows that it was intended to have a very restricted
operation, and
not to apply to all those who, by the chance of events, might come to
have a
claim to the succession to the Crown.
If the Act really had any distinctive purpose of policy, here is
an abandonment
of it. The persons nearest to the
succession to the Crown, have been those expressly excepted from its
provisions. The Princess
Charlotte (23)
was a princess who married into a foreign family.
By the terms of the Act, her issue would be
excepted from its provisions; yet she was very near the throne; and her
case,
therefore, affords a proof of the extraordinary inaccuracy and
looseness with
which the Act was drawn, and shows it rather to have been an emanation
from the
Royal temper at the moment, than a well-considered and well-framed
piece of legislation. The
issue of her present Majesty,(24) had she married
while a princess, would in like
manner have been exempt from its operation '.
This argument was only incidentally relevant in the Sussex Case. Consequently, it was not dealt with in the judgments. At other stages in the argument numerous judicial interjections took [57] place, which tends to show that their lordships were not violently in disagreement with the gist of it, i.e., that Princess Charlotte and Queen Victoria (had she been a princess) would be treated as having married into foreign families'. Both of their husbands were princes of the house of Saxe-Coburg—clearly a foreign family. It is to be noted that the words used are ' marry into foreign families', and not ‘ marry foreign subjects'. In point of fact both princes had been naturalised by Act of Parliament before their respective marriages.(25) It is the foreignness of the family, not that of the individual member of it, which is in question. If this contention of Sir T. Wilde is correct, the Royal Marriages Act can have no application to the issue of the Princess Elizabeth, Duchess of Edinburgh, as she has married into a foreign family, that of Greece.(26) Although her husband uses the surname of Mountbatten,(27)">(27) and is a naturalised British subject,28 he was born a Prince of Greece, a Greek subject, the son and grandson of Greeks. The contention might however be attacked on the ground that naturalisation cuts the individual off from his family. In Roman law a capitis deminutio media—loss or change of civil status (29)—took the deminutus out of the potestas of his paterfamilias.(30) But if words are given their ordinary meaning, the word ' family ' appears to extend to a man's near blood relatives without regard to nationality. The context, ' marry into . . . families', shows that it does not here mean ' children', as in the phrase, ' my wife and family '. As Wickens V.-C. said in Burt v. Hellyar,(31) ' family', ' is a popular and not a technical expression ', and ' is, in itself, a word of the most loose and flexible description '. (32) It may be argued that it should therefore be given the meaning which will best give effect to the declared object of the statute, viz., to safeguard certain Royal marriages. Against this must be put the fact that this is a penal statute establishing a crime (which is not malum in se) and one ' passed to deprive certain persons of a natural right, a right sanctioned and enforced by the law of both God and man '." Such an Act must be construed very strictly and any exemptive clause as liberally as possible.(34) The restriction of the
exemption to the issue of princesses is very curious.
Assuming for the moment that Queen Victoria
is disqualified, as Sir T. Wilde suggests,(35) there is a purely
fortuitous
distinction between the issue of an heiress presumptive, who marries
(with
permission) into a foreign family before her accession, and that of one
who,
being refused permission, has to wait until her accession takes her out
of the
statute.(36) But was Queen Victoria
not a
princess ?(37) A peerage merges in the
Crown, when its holder succeeds to the fountain
of honour, and is extinguished,(38) but the
purely
titular dignity of princess is not a peerage.(39) The
greater is often included in the
less.(40) The fact that King Edward
VIII
was styled ' Prince Edward ' from the moment of his abdication without
further
grant (41) appears to indicate that he remained a
Prince throughout his tenure of
the Crown.
In the formal language of royal proclamations the Sovereign is
often
styled ' Prince' or ' Princess'. Thus
the proclamation of his present Majesty's accession ended with these
traditional words, ' beseeching God, by whom kings and queens do reign,
to
bless the Royal Prince, George the Sixth
with long and happy years to reign over us'."
In old statutes this usage is frequent,
e.g., the Recognition Act, 1608, refers to ' the highe and mightie
Princesse of
famous memorie, The restriction appears to have another curious effect. If the Sovereign's only daughter and heiress married into a foreign family, her issue would be exempt albeit in direct proximity to the throne; but if a daughter of, say, the present Earl of Harewood were to marry a man of her mother's nationality, her issue would remain subject to the Act.(44) And it might obviously be someone much more remote from the succession than that. But the main
contention of this article rests neither on the phrase into foreign
families,
nor on the technical definition of a princess.(45)
It is suggested that in fact all the
descendants This contention is based on the assumption that the words ' the issue ' of such a princess mean ' all the issue '. It is difficult to see what other meaning can be put upon these words. It would be quite arbitrary to add some such phrase as, ' not being British subjects', or, ' not being more directly descended from a later British Sovereign '.(48) These phrases of limitation simply are not there. No doubt the legislature would have done better to add them, but it having failed to do so, it is no part of a judge's duty in construing what has been enacted to add to it what should have been enacted. As has already been pointed out, this is a penal statute and must be strictly construed.(49) Any exemptive provisions, on the other hand, must be construed as favourably as possible.(50) If a descendant of Edward VII (51) were on trial for the crime created by the statute,(52) he would be entitled to claim that he was the issue, albeit somewhat remote,(53) of a princess who married into a foreign family, and therefore entitled to an acquittal. [60]From the wording of the Act (54) it is clear that the tests of criminality and nullity are the same. In the Sussex Peerage
Case itself,(54) Tindal C.J. said, ' If the words of a statute are in
themselves
precise and unambiguous, then no more can be necessary than to expound
these
words in their natural and ordinary sense. The words themselves alone
do, in
such cases, best declare the intention of the law giver'.
Later (55) he says of the particular act in
question, ' the words of the statute appear to us(56) to be free from
ambiguity'.
The natural and ordinary meaning of the term ' issue ' is descendants
ad
infinitum,(57) In other statutes relating to the Royal family the word is
invariably used in this sense.(58) In some will cases a so-called '
popular '
meaning has been given to the words restricting them to issue in the
first
generation, i.e., children.(59) Such a construction here, as well as
being quite
unjustifiable, since the legislature must be taken to understand the
ordinary
legal meaning of a word, would lead to absurd and untenable results.
For
example, while the children of Empress
It may even be asked
whether there is now any living person to whom the Act applies. Even if Queen Victoria was not a '
princess '
within the meaning of the Act, or her marriage was not one into a
foreign
family—which are admittedly matters of argument—most, if not all, of
her living
descendants can claim exemption by some other line of descent. Thus all her daughters who had issue
married [61] into
foreign
families.(61) Her second son, the Duke of Edinburgh (1844-1900)
(62) is represented
only by the issue of his four daughters, all of whom married into
foreign
families.(63) The youngest son, the first
Duke of Albany (1853-1884) married a descendant of Augusta, Duchess of
Brunswick-Wolfenbuttel
(1787-1813), eldest sister of
George III.(64) More difficult is the case
of the
third son, the first Duke of Connaught and Strathearn (1850-1942). His
wife was
descended from the only daughter of George I, but apparently (65) not
from George
II. This raises the point whether the exempting princess must herself
be a
descendant of George II.(66) If so, this branch of the Royal family is
the only
one to whom the Act may possibly apply. But his elder daughter married
into the
Royal house of Sweden, so as to exempt her issue.(67) Therefore the sole
person
to whom the Act could apply would seem to be the only son of the other
daughter, Lady Patricia Ramsey.(68) He is Captain Alexander Ramsey (born
1919),
approximately sixty-eighth in the fine of possible succession to the
throne.(69)
This seems a sufficient commentary on the supposed effectiveness of the
Royal
Marriages Act in protecting the throne from undesirable consorts. But, of course, if the arguments
for Queen
There is, however, one
other group of descendants of George II—the German house of This marriage of
George V of [63] To sum up, the Royal Marriages Act, 1772, has spent its force, every now living descendant of George II(76) being exempted as ' the issue of princesses who have married .. . into foreign families '(77) This is scarcely to be regretted, as few Acts have been so badly drafted or excited so much execration. Even when there were descendants to whom it did apply, it did not do its work properly. Thus a Roman Catholic descendant—with no possible interest in the succession(78)—was caught by its terms,(79) but the heir presumptive to the throne, if only his mother had married into a foreign family, was exempt. In fact, ' marriages ' rendered criminal and void by its provisions were treated socially as the equivalent of the continental morganatic marriage.(80) If it be true that '
marriages in the Royal family are of the highest importance to the
state' 81 it
is obviously desirable that new legislation should be introduced.
There seems little need to make it extend
beyond the descendants of the late King George V. No criminal
penalty should be attached, it is suggested,
to a marriage of such a descendant without the Royal consent; nor
should the marriage be rendered void. A solution
more in accordance with modern ways of thought would be that the
descendant by
such marriage should forfeit all title to the throne for himself and
his
issue.(82) Extreme care would be
necessary in drafting the section (if any) conferring exemption upon
the issue
of those female members of the Royal house who marry into foreign
families. 1 12 Geo. III, c.
11;
4 Halsbury's Statutes, 188. 2
Since the consent must be given under the
Great Seal and passed in Council (a. 1), the contrary view is not so
absurd as
it appears at first sight. The monarch is within the words ' descendant
of
George II (idem), but the Preamble (infra), shows that Parliament
clearly had
in mind only the other members of the Royal family. The King is not
bound by a
Statute unless expressly referred to {Magdalen College Case (1616) 11 3
For a layman's view see Mackenzie, The
Windsor Tapestry (1938). 4
The Times, 5
It is customary to announce such consents in the
Court Circular and in the London Gazette. 8 His
great-grandmother was Princess Alice (1848-1878), second daughter of
Queen 9 The passing of
this
Act was strongly opposed.' (Erle C.J. as junior counsel in the Sussex
Peerage
Case, at p. 140.) 10
William Henry, Duke of Gloucester and
Edinburgh (1743-1805) had married in 1766 Maria. Dowager Countess
Waldegrave, a
natural daughter of Sir Edward Walpole. Henry Frederick, Duke of
Cumberland and
Strathearn (17-15-1790) in 1771 married Lady Anne Horton, a commoner's
widow. 11 "With
reason. George, Prince of Wales, '
married' Mrs. Fitzherbert, in violation of the Act, 12 At common law
the
King of England had the care and approbation of the marriages of his
children
and grand-children by sons, and of the heir presumptive.
This was unanimously decided to be
the law by the judges in 1772. (Lord's Journals, February 22.) His control over the remoter members of
the
royal family was vague and undefined.
But it is very important to notice that the want of the King's
approbation previous to
the
passing of the 1772 Act did not invalidate the marriage, but
merely
rendered the parties liable to
punishment for contempt of the royal authority.
(VI Halsbury's Laws of England, 2nd ed.,
442, note (m).) Thus, when
Henry
VIII's sister. Queen Mary
(1498-1533) remarried
without his
leave, her husband, the Duke of
Suffolk, had to pay over Ł24,000 to the King.
(Dictionary of National Biography, vi, 219.)
When a common law right of the Crown is
re-enacted by statute sub condicione, the Crown cannot rely on its
common law
right to act sine condicione.
(Att.-Gen. v. de
Keyser's Royal Hotel, Ltd-(1920)
A.C. 508.) 13 The Complete
Peerage, III, 547, note (a). 15 Thus the
Archduke
Franz Ferdinand of Austria-Este (murdered at 16 I.e., the
procedure
under section 2, 17 16 Ric. II, c.
5
(1392-3). They were the forfeiture of all the property, real and
personal, of
the person convicted, and his imprisonment for life or perpetual
outlawry. The
forfeiture is an express part of the sentence, and the crime not being
a
felony, it was not abolished by the Forfeiture Act, 1870. (Kenny,
Outlines of
Criminal Law, 15th ed., 823.) Criminal outlawry was abolished by the
Administration of Justice (Miscellaneous Provisions) Act, 1938, s. 12.
The
imprisonment is untouched by the Criminal Justice Act, 1948, 10th
Schedule. 18
R. v. Slaney (1832) 5 C. & P. 213; R. v.
Garbett (1847) Den. 236. Moreover, it is unusual to convict on the
uncorroborated, evidence of accomplices, which everyone present must
necessarily be. 19
E.g., those referred to in note (11) supra.
The second Duke of Cambridge (1819-1904), the famous
Commander-in-Chief, is
believed to have been the moat recent case, but as to his marriage, see
note
(72) infra. 20
Nullity proceedings were taken in respect of
the Duke of Sussex's first 'marriage . (Foster's Peerage, 1880,
lxxvii.) See
also the Duke's declaration, Sussex Peerage Case, at p. 99. 23 Only child of
George IV, born in 1796. Her husband was Prince Leopold of
Saxe-Coburg-Saalfeld
(1790-1865), afterwards first King of the Belgians. (Queen 25
Prince Leopold by 56 Geo. III, c. 12; 26
The Royal family of 27
Assumed on his naturalisation, February,
1947. (Shew, op. cit. 72.) His mother was a Princess of Battenberg. 28
By ordinary process, not special Act. 29 Capitis
deminutio media occurred when a Roman
citizen became civis of another town, e.g., a civitas peregrina or a
Latin
colony, between which and Borne there was no complete community of
civil rights
(see Moyle's note to Inst.1.16.ii, citing 31
L.R. 14 Eq. 160, at p. 164. 32 Per
Kindersley
V.-C. in Green v. Marsden (1858) 1 Drew 646, 651. 33
Erle C.J. (as counsel), Sussex Peerage Case,
at p. 135. 34
I return to this matter, infra; notes (49)
and (50). 37 She clearly
remained throughout her life a Princess of Hanover, but I apprehend
that the
princess must be a- British one. 38 Lord Cranmore's
Case (1848) 2 H.L.C. 910. Buckhurst Peerage Case (1876) 2 A.C. 1, per
Lord
Cairns L.C., at p. 28. 39 It was held in
the
Wensleydale Peerage Case (1856) 5 H.L.C. 958 that the Crown cannot
create a
peerage unless it be hereditary. A prince has to be created a peer
before
entering the House of Lords. 40 E.g., a bequest
of
the testator's one-third share in a partnership may pass the whole
business,
acquired before his death (Be Russell (1882) 19 Ch.D. 432). 41White, The
Abdication of Edward VIII (1987). 42
43
1 Jac. 1, c. 1 (preamble); 4 Halsbury's
Statutes, 126. 44
Because she would not be a princess. This
example assumes that the Earl is within the Act, which, it is
contended, he is
not. 45 By Royal
Warrant of
December 11, 1917, ' the children of any sovereign of the United
Kingdom and
the children of the sons of any such sovereign and eldest living eon of
the
eldest son of the Prince of Wales, shall have and at all times hold and
enjoy
the style, title or attribute of Royal Highness with their titular
dignity of
Prince and Princess prefixed to their respective Christian names, or
with their
title of honour '. Previously the titles had been more extended. It is suggested that a reigning queen
would
normally come within these words, as Queen 46 Her daughter
Louise,
Princess Charles of Hesse-Cassel (1750-1831), had a daughter, also
Louise, the
Duchess of Slesvig-Holstein-Glucksburg (1789-1867), who was the mother
of King
Christian IX of Denmark (1818-1906), Queen Alexandra's father. Queen
Alexandra's mother was also a descendant of George II. 47
A morganatic branch of the royal house of
Wurtemberg. Her husband, Francis, first Duke of Teck (1837-1900),
resided in 48
It is extremely difficult to frame words
which catch those persons whom it is necessary to catch and no others, 49
53 Necessarily not
so
remote as their descent from George II, which gives the 54 hoc. tit,, at
p.
143. 56 The question
bad
been referred to the judges. 57 Whythe v.
Thurlston
(1749) Amb. 555; S.C., sub nom. Wyth v.
Blackman, 1 Ves.Sen. 196; 58 E.g., The Act
of
Settlement, 1700 (12 & 18 Will III, c. 2), s. 1:
' in default of issue of the said Princess
Ann and of His Majesty '. For
an
exactly similar use, see the Succession to the Throne Act, 1544 (36
Hen. VIII,
c. 1), s. 1, ' and for default of such issue . . .'. 59
Ralph v. Carrick (1879) 11 Ch.D. 873, per
James L.J. at p. 883. If it is
qualified as, e.g., 'issue male' or, 'eldest issue male', it may in a
will be
read as equivalent to 'heir-at-law' of
the appropriate kind. (Re Cosby's Estate [1922] 1
Ir.R. 120.) Such a reading here
would
lead to even more absurd results than that as ' children' referred to
in the
text. 61 The Princess
Royal 62 Reigning Duke
of
Saxe-Goburg and 63 Princess Marie
(1876-1938) married King Ferdinand of Rumania, Princess Victoria
(1876-1936)
the Grand Duke Cyril Vladimirovitch, head of the House of Romanov after
the
annihilation of the Tsar's immediate family, 1918, Princess Alexandra
(1878-1942) into the mediatised German family of Hohenlohe-Langenburg,
Princess
Beatrice (born 1884) the Infante Alfonso of Orleans-Bourbon. The Duke's only son died without issue
in
1899. 64 As to this
lady,
see also note 22, supra. The Duchess of Albany was daughter of Helena,
Princess
George of Waldeck (1881-1888), daughter of Paulina, Duchess of Nassau
(1810-1856), daughter of Prince Paul of Wurtemberg (1785-1852), son of
Queen
Charlotte of Wurtemberg (1764-1788), daughter of the Princess Augusta
referred
to in the text. 65 In view of the
complexities of royal genealogies, it is dangerous to state a negative
categorically. The Duchess of Connaught was daughter of Prince
Friedrich Karl
of 66 Presumably she
must. Otherwise a Stuart or even a Plantagenet princess might be used. 67 Princess
Margaret
of 68
Born 1885. Also to her for a re-marriage, The
Duke's male issue became extinct at the death of his grandson, the
second Duke
(1914-1943). 69 This is a
conservative estimate. Between him and the throne, stand, in addition
to all
the descendants of George V (except the Duke of Windsor), members of
the Royal
families of Norway, Rumania, Greece, Yugoslavia, Romanov, Leiningen,
Hohenzollern, Hohenlohe-Langenburg, Slesvig-Holstein, Sweden and
Denmark; also
Hapsburg and Orleans-Bourbon, if prepared to forswear their religion. 71
Second Duke of 72
The most striking result of the writer's
contention, if it be correct, is that the second Duke of 73 4 & 5 Anne,
c. 15; 4 Halsbury'e Statutes,
165. (It was repealed by the
British Nationality
Act, 1948 (4th Schedule).) 74 Re Bozzelli's
Settlement [1902] 1 75 The Act seems to
contemplate this.
Otherwise there would be no need expressly to
exempt the issue of princesses, whose issue would normally be domiciled
abroad. 76 With the
possible
exception of Captain Ramsey, supra. 78 Act of
Settlement,
1700, s. 1. 79
There are no words excluding them from the
Royal Marriages Act. But for this Act George IV's marriage to Mrs.
Fitzberbert
(note (11), supra) would have incapacitated him for the Crown and
probably the
Regency, as she was a Roman Catholic. 80
Thus, the Duke of Sussex's first English 'marriage' took place publicly at 81 Preamble to the
Royal Marriages Act, supra. The events of 1936 clearly demonstrate that
they
are. 82 This is tbe
position in * Mr. C. d'O.
Farran,
m.a., B.c.L.(oxon), is an Assistant Lecturer in Law in the Lord Chancellor Royal Marriages Act.
1772 I have received a
further letter from Sir Alan Lascelles on this subject enclosing the
reprint of
an article by Farran which I think it would be worth your while to read. Farran is a B.C.L. of Oxford, is Assistant
Lecturer in Law in the I attach my
correspondence with Lascelles and Farran's article. It seems pretty clear
that, apart from pressure on Parliamentary time and the natural
unwillingness
of any Government to legislate about the Monarchy and the Royal Family,
there
is a strong case for repealing the Act of 1772 and substituting
whatever may be
necessary or desirable to protect the Throne from undesirable consorts. At the end of his
article Farran suggests as a policy that if a descendant of King George
V were
to marry without the consent of the Sovereign, that descendant should
forfeit
all title to the Throne for himself and his issue. This seems to be on
the right lines. It would be for
consideration whether the prohibition should not be limited to the
children and
grandchildren of the Sovereign for the time being but it needs thinking
out. I have told Lascelles
that I would ask you to consider the subject and to instruct me as to
the next
step. a.e.a.n. 1st February. 1952. Thank you very much
for your letter of the 31st January and for sending me your copy of the
reprint
of Mr. Farran's article on The Royal Marriages Act, 1772.
I have
read the article with great interest. At
least it bears out the view that any
Bill on the subject must repeal the Act of
1772 and substitute something quite
different - something which can be justified as being necessary or
desirable in
modern conditions. I will ask the Lord
Chancellor to consider the subject and to instruct me as to the next
step. The Right Honourable Sir Alan
Lascelles, G.C.V.O.,
K.C.B., C.M.G., M.C. Home Office. S.W.1. Dear Napier, I have received your
letter of the 25th ultimo about the Royal Marriages Act,
1772,
and much regret not having replied to your earlier letter. Looking at the
position to-day there are thirteen descendants of King George V in the
line of
succession to the throne and after them come Princess Arthur of There is a certain
advantage in amending the Act of 1772, since it is now hopelessly out
of date
and indefensible. It may be, as
Leadbitter has suggested, that the necessary consent has sometimes been
overlooked with the result that there may be some doubt in such a case
as to
the legitimacy of the issue in English and Dominion law; but so far as
succession to the throne itself is concerned, the line of succession is
now so
strong that it does not probably matter
whether the need for the consent has
sometimes been overlooked in the remote cases. If the Act is
to be amended, the suggestion in the
"Times" in 1949
that King George V should simply be substituted therein for King George
II is a
good one; but the exception for
"the issue of princesses who have married into foreign families" may
require consideration, especially as the Foreign Office apparently
suggested
some years ago that the exception should be for foreigners. On the other hand,
there is a natural reluctance to legislate on these matters and there
is no
public demand. The Act of 1772 sometimes gives a little work but the
work is
not in itself sufficient to justify an amendment. It
would be necessary to obtain the agreement
of the Dominions which should not be difficult, but I doubt whether the
Act is
one "touching the Succession to the Throne" in the Statute of I am afraid that
the amendment will provoke discussion.
The exception in the Act for the issue of princesses who have married
into
foreign families produces anomalies as shown by the Norwegian instance. Further, in the conditions in the XVIIIth
century it was to be expected that when an English princess married a
foreigner
the bridegroom would be at least a ruling prince whether royal, electoral or ducal or in the line of
succession to such a prince and that in any event the descendants of
the
marriage would be foreign princes or princesses born abroad and living
in their
own country. But in the. XlXth century
more than one of Queen On balance, it seems
to me that it is better not to amend the Act at the present time. I
have not consulted the Home Secretary since I gather that at the moment
you
only desire my personal opinion. Yours sincerely,
L. S. Brass The Right Honourable Sir Albert Napier,
K.G.B. , Q.C. ,
Lord Chancellor's
Department, House of
Lords. Dear Sir Leslie Brass, Sir Albert Napier has
asked me to let you know that he has received your letter of the 22nd
February
About the Royal Marriages Act, 1772. Yours sincerely,
A.R. Sir Leslie Brass,
C.B.E. Wed 18th
June @1030am 5.vi.52 Dear Gavin, I’m very glad they
have made you a proper Peer. Many
congratulations. In re R. Marriages
Act: will you tell one of your people if you wld like ,me to come &
see you
one day next week – or, better, the week after when all the inmates of
this
house (except I) will be at Ascot. Yours truly, A.
Lascelles Sir Albert Napier Royal Marriages Act,
1772 At common law the King
had a certain measure of control over the marriages of members of the
Royal
Family, as was recognised by Parliament in the. preamble to the Act of
1772,
where it is stated that Parliament was "sensible that marriages in the
royal family are of the highest importance to the state and that
therefore the
kings of this realm have ever been entrusted with the care and
approbation
thereof". The judges in 1772
declared that the common law rule was that the King had the care and
approbation of the marriages of his children and of his grandchildren
by sons
and of the Heir Presumptive. But the
want of the King's approval did not invalidate the marriage but
rendered the
parties liable to punishment for contempt of the royal authority
(Halsbury,
Vol.6, page 442). If the Act of 1772
were simply repealed, I think it is clear that this common law rule
would be
revived and would not be affected by anything in the Marriage Act,
1949, for
s.79(5) of that Act expressly provides that nothing in the Act is to
affect any
law or custom relating to the marriage of members of the Royal Family. The marriage of members of the Royal Family
other than the children, and the grandchildren by sons, of the
Sovereign and of
the Heir Presumptive would presumably be governed by the ordinary law
contained
in the Marriage Act, 1949. Under s.3 of
this Act consent to the marriage of an infant who is not a widower or
widow
must be given by his or her parent or guardian in accordance with the
provisions of the Second schedule to the Act.
If both parents are alive and are living together, the consent
of both
is required; if they are divorced or
separated, the consent must be of the parent who has the custody of the
child.
If one parent is dead, the consent required is that of the surviving
parent and
of any guardian appointed by the deceased parent.
The court, which includes a court of summary
jurisdiction, may dispense with consent on application made to it for
that
purpose, provided that notice of the application is given to the person
who has
refused consent. Failure to obtain
consent, either from the person whose consent is required or from the
court,
does not however in itself invalidate a marriage.
D.W.D. (?) Mr. Dotson Sir Albert Napier Lord Chancellor Royal Marriages
Act, 1772 I attach a note of
this morning's meeting: with Sir Alan Lascelles,
D.W.D. (?) Approved as revised S 15 vi 52 ROYAL MARRIAGES ACT.
1772 Note of Sir Alan
Lascelles' discussion with the Lord Chancellor on Sir Alan Lascelles
came to see the Lord Chancellor in order to discuss the possibility of
amending
or repealing the Royal Marriages Act, 1772, which sometimes caused
inconvenience in modern conditions, particularly when requests were
made for
the Sovereign's consent to marriages of foreigners who might he quite
unknown
to him but could claim to he descended from King George II. The Lord
Chancellor
said that the Act was difficult to construe and its effect was far from
clear. In an article in the Modern
Law
Review for January, 1951, Mr. Farran had contended that the exception
contained
in s.1 of the Act in favour of the issue of princesses marrying into
foreign
families extended to all descendants of such princesses, even although
such
descendants might also he able to trace descent from King George II in
the male
line. This would clearly defeat the object
of the Act and, if the argument were correct, even an heir to the
Throne, if he
could trace descent through a princess who had married into a foreign
family,
would be able to marry without the Sovereign's consent.
At common law the Sovereign had a certain
measure of control over the marriage of members of the Royal Family in
the
direct line of succession to the Throne, as was recognised by the
preamble to
the Act of 1772, but the Sovereign's common law rights had been
suspended by
the statute without, if Mr. Farran were correct, there being anything
to
replace those rights at the present day. The Lord Chancellor
said that, although the matter was not free from doubt, he thought that
the
words of exception in s.1 of the Act ought to be construed so as to
cover only
those persons who were descendants of princesses who had married into
foreign
families but did not otherwise trace descent from King George II. Lord Simonds said that
he did not think it would be practicable to repeal the Act and to put
nothing
else in its place, relying on the fact that the Sovereign's rights at
common
law would be revived by the repeal of the Act.
Nor did he think that it would be practicable to amend the Act
by
substituting references to King George V for references to King George
II,
although this would no doubt have a beneficial result in cutting out a
number
of foreign persons who could claim descent from George II, because,
once it
were sought to amend the Act, Parliament would undoubtedly wish to
consider
whether its provisions were appropriate in modern conditions. For instance, it could well be argued that
while the Sovereign should possess some form of control over the
marriage of
members of the Royal Family sufficiently close in the line of
succession to the
Throne, this should not take the form of invalidating marriages which
had taken
place without consent, but should deprive those concerned of all right
of
succession to the Throne.
For these reasons the
Lord Chancellor thought that the best course would be to do nothing
further
unless and until any practical need for action arose.
Any requests for consent to their marriage
from foreigners claiming descent from George II ought, in the great
majority of
cases, to be able to be met by the answer that such persons were exempt
from
the provisions of the Act because they trace descent solely through
princesses
who had married into foreign families.
a.e.a.n. Dear Sir Alan, I enclose a record of
Wednesday's meeting Which the Lord Chancellor has himself seen and
approved. Yours sincerely,
D.W.D. The Right Honourable Sir Alan Lascelles,
G.C.V.O., K.C.B., C.M.G., M.C. royal marriages act
1772 Note of Sir Alan
Lascelles' discussion with the Lord Chancellor on Sir Alan Lascellee
came to see the Lord Chancellor in order to discuss the possibility of
amending
or repealing the Royal Marriages Act, 1772, which sometimes caused
inconvenience in modern conditions, particularly when requests were
made for
the sovereign's consent to marriages of foreigners who might be quite
unknown
to him but could claim to be descended from King George II. The Lord
Chancellor
said that the Act was difficult to construe and its effect was far from
clear. In an article in the Modern Law
Review for January, 1951, Mr. Farran had
contended that the exception contained in s.1 of the Act in favour of
the issue
of princesses marrying into foreign families extended to all
descendants of
such princesses, even although such descendants sight also he able to
trace
descent from King George II in the male line.
This would clearly defeat the object Of the Act and, if the
argument
were correct, even an heir to the Throne, if he could trace descent
through a
princess who had married into a foreign family, would he able to marry
without
the Sovereign's consent. At common law
the Sovereign had a certain measure of control over the marriage of
members of
the "royal Family in the direct line of succession to the Throne, as
was
recognised by the preamble to the Act of 1772, hut the Sovereign's
common law
rights had been suspended by the statute without, if Mr. Farran were
correct,
there being anything to replace those rights at the present day. The Lord chancellor
said that, although the matter was not free from doubt, he thought that
the
words of exception in s.1 of the Act ought to ho construed so as to
cover only
those persons who were descendants of princesses who had married into
foreign
families but did not otherwise trace descent from King George II. Lord Simonds said that
he did not think it would be practicable to repeal the Act and to put
nothing
else in its place, relying on the fact that the Sovereign's rights at
common
law would be revived by the repeal of the Act. Nor did he think that it
would
be practicable to amend the Act by substituting references to King
George V for
references to King George II, although this would no doubt have a
beneficial
result in cutting out a number of foreign persons who could claim
descent from
George II, because, once it were sought to amend the Act, Parliament
would
undoubtedly wish to consider whether its provisions were appropriate in
modern
conditions. For instance, it could well
he argued that while the sovereign should possess some form of control
over the
marriage of members of the Royal Family sufficiently close in the line
of
succession to the Throne, this should not take the form of invalidating
marriages
which had taken place without consent, but should deprive those
concerned
of all right of succession to the
Throne. My dear Dobson, Thank you for the
record of our meeting with the Lord Chancellor last Wednesday, which
you have
been good enough to send me. Yours sincerely,
A.
Lascelles D.W.
Dobson, Esq., O.B.E., Lord Chancellor's
Office, House of Lords. Home Office,
S.W.1. Dear Napier, On I enclose as a matter
of interest a copy of a note which has been written here.
I am not of course suggesting that anything
should be done hut you may he glad to have it. Yours sincerely,
L.
S. Brass The Hon. Sir
Albert Napier, K.C.B., K.C. Sir Leslie Brass
892637 Royal Marriages
Act. 1772 I obtained these
papers because it seemed possible that
they might he relevant to the
question which we were considering about the Duke of Brunswick's
application for a doubt certificate under section 25 of the British
Nationality
Act, 1948.
They are not relevant to this question, but
they raise a question which you may like to consider in relation to the
Royal
Marriages Act, 1772. The Duke of Brunswick
(who was married in 1946 and to whose marriage the then Lord Chancellor
considered that the Royal Marriages Act did not apply)
is the second son of the Duke of Brunswick
who is asking for a doubt certificate. He
is therefore descended in the male line from King George II through the
Duke of
Cumberland, King George Ill's son. The
Lord Chancellor considered that the Royal Marriages Act did not apply
to him
because of his descent from the Empress Frederick, Queen Of course I do not
wish to suggest that the application of the Royal Marriages Act may not
be
excluded under the rules of private international law.
The husband in this case was almost certainly
domiciled and resident abroad and (we think) not a British subject, so
perhaps
the Act does not apply to him in any event. 29th October. 1952. Miss Rice Before this is typed,
it should be checked in referene to any record in other files (3236/15)
of the
conversation between the Lord Chancellor & Sir Alan Lascelles on
the
question of repealing the Act.
A.E.A.N.
7.xi.52 Dear Brass Thank you for your
letter of the 7th November enclosing a copy of the Home
Office Note
dated the 29th october about the Royal Marriages Act 1772. The present Lord
Chancellor has had occasion to consider the construction of the Act on
the same
point. He did not accept the views that
the Act is excluded in the case of a descendant of George II in the
male line
who is also descended from George II through a Princess who has married
into a
foreign family. The writer of the Note
ssems to share this view, for he regards the contrary as “very
doubtful”. The Lord Chancellor
has not considered the question of private internaitonal law referred
to, but
not answered, in the last paragraph of the Note. Dear Brass, Thank you for your
letter of the 7th November enclosing a copy of the Home
Office Note
dated the 29th October about the Royal Marriages Act, 1772. The present Lord
Chancellor has had occasion to consider the construction of the Act on
the same
point. He did not accept the view that
the Act is excluded in the case of a descendant of George II in the
male line
who is also descended from George II through a Princess who has married
into a
foreign family. The writer of the Note
seems to share this view, for
he regards the contrary as "very doubtful". The Lord Chancellor
has not considered the question of private international law referred
to, but
not answered. In the last paragraph of the Note. Yours sincerely,
a.e.a.n. Sir Leslie Brass, C.B.S. The Faculty of Law, The University, Dear Sir Albert
Napier, Many thanks
again. I am taking the liberty of
including two articles of mine, in which you might be interested. That
on the
Royal Marriages Act may even call for official action from the Lord
Chancellor! Yours sincerely, C. d'O FARRAN. original on 3510/29 Confidential Dear Farran,
Thank you for your
letter of the 4th June and for sending |