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LCO 2/6352

 

Lord 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

 

25th July 1949.

 

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

 


The Honourable

Sir Albert Napier, KCB., House of Lords. 


28th July, 1949.

 

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.



28th July, 1949.

 

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

Richmond Herald

College of Arms

Queen Victoria Street E.C.4

 

Aw/NN.

 

29th July 1949.

 

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.

Richmond Herald.

 


2nd August,  1949.

 

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,,

Richmond Herald.


 

3rd August, 1949.

 

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.


 

3rd August, 1949.

 

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,

Whitehall, S.W.1.

 

5th August, 1949.

 

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.


 

9th August,  1949.

 

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 Buckingham Palace and some Departments a certain amount of trouble if Hardinge's suggestion of 1941 were carried out, new legislation excluding all foreigners from the operation of the Act.  The difficulty there would be to persuade any Government that it was worth legislating for that purpose alone.

 

 

 

Sir EricLeadbitter,  C.V.O.


 

BUCKINGHAM   PALACE                   

 

24th January, 1952

 

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.



25th January, 1952.

 

I am afraid I must answer your letter of the 24th January in a white sheet. On the 3rd August, 1949, I sent copies of your letter to Sir Eric Leadbitter and to Leslie Brass. I enclose a copy of Leadbitter's reply of the 5th August, 1949. I cannot trace an answer from Brass and by a mistake in this office the papers were put away in December, 1949, as if they needed no further action, and I am afraid I forgot all about the subject. I have now written to Brass again.

 

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.



25th January, 1952.

 

I enclose a copy of a letter which I wrote to you on the 3rd August, 1949.  I cannot trace any answer to it. By a mistake in this office the papers were put away in December, 1949, and I forgot all about the subject. Lascelles has now asked whether I can give him an opinion and I am telling him what has happened.

 

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 the 5th August, 1949.

 

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

 

31st January 1952

 

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 Denmark, and Queen Mary's mother, Princess Mary of Cambridge, married into the foreign family of Teck.      This depends admittedly on the assumption that the words  'the issue' mean 'all the issue i.e.descendants ad infinitum,  and not merely children.

 

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, Elizabeth, late Queen of England '.(43)

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 [59]  of King Edward VII are as a result of cross-marriages the issue of an undoubted princess who married into an indisputably foreign family.    Queen Alexandra was fourth in descent from Princess Louisa (1724-1751), who married King Frederick VII of Denmark. She was George II's youngest daughter.(46) The late King George V's descendants,  who are the only members of the Royal family reasonably near to the succession, are doubly exempted, as Queen Mary's mother, Princess Mary of Cambridge (1838-1897), married into the foreign family of Teck. (47)   It is therefore submitted with very great respect that the whole of the issue of Edward VII are within the exemptive provisions of section I of the Royal Marriages Act, 1772.

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 Victoria of Germany (60) would be exempt, her grandchildren and their descendants, necessarily more remote from the British crown, would have to have their marriages approved by the Kings of England. If then ' the issue' is given its ordinary meaning, the only possible meaning which it can be given in this context, it must necessarily follow that all the descendants of Edward VII are within the exempting words.

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 Victoria's  [62] being an exempting princess (70) are accepted, even Captain Ramsey must be outside the Act.

There is, however, one other group of descendants of George II—the German house of Hanover or Brunswick-Luneburg. As their descent is directly through males, they would seem to be particularly within the intention of the statute. But King George V of Hanover (1819-1878) (71) married a descendant of the Princess Royal Anne, Princess of Orange-Nassau (1709-1759), eldest daughter of George II. From this marriage the present Hanoverian line descends. Thus there is, as far as can be ascertained from published genealogies, only one living unmarried descendant of George II to whom the Act may still apply.(72)

This marriage of George V of Hanover makes the question of whether the Act can apply to persons who are not British subjects a purely academic one. It was never anything else (except possibly as regards papists) as by the remarkable Princess Sophia Naturalisation Act, 1705, every protestant descendant of that lady was—at least for the purposes of English law—a British subject.(73) But in any event domicile and not nationality is the test by which the capacity of a person to marry must be tested.(74) It is at least arguable that the terms of the Royal Marriages Act are so categoric that even a foreign-domiciled person—if he is not within the exemptive words—must be treated by the English courts as being incapable of matrimony without the British King's consent.(75)

[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.


C. d'O. Farran.(*)


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 Co. Rep. 66b, 68b; 1 Blackstone's Commentaries (14th edn.) 262).

3  For a layman's view see Mackenzie, The Windsor Tapestry  (1938).

4  The Times, February 6, 1950, p.  5.

5  It is customary to announce such consents in the Court Circular and in the London Gazette.

6 (1844) 11 Cl. & Fin. 85.

7 Section 1.

8 His great-grandmother was Princess Alice (1848-1878), second daughter of Queen Victoria. She married the Grand Duke of Hesse. It appears to be irrelevant that the Marquess, like his father and grandfather, is a British subject domiciled in England. The genealogical information in this article has been verified from the Peerages of Burke and Debrett (1949 editions) and, where appropriate, from the Almanach de Gotha (various editions). For some of the earlier connections see Townend, The Descendants of the Stuarts, 2nd edition, 1858.

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, December 15, 1785. (The Complete Peerage, III, 450, note (d).) The sixth son, Augustus, Duke of Sussex (1773-1843) twice so 'married'. All the other sons, except the Duke of Cambridge (1774—1850), lived openly with mistresses. When William IV came to the throne he created his ' Dearly beloved natural Son ' an Earl (loc. cit. IX, -129).

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 £24,000 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).

14 Supra, note (6).

15 Thus the Archduke Franz Ferdinand of Austria-Este (murdered at Sarajevo in 1914), had married without permission a member of the Bohemian noblesse. Consequently, his sons, though legitimate, did not succeed to the Dual Crowns in 1916.    (Almanach de Gotha, 1932 ed., 488.)

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.

21 Supra.                                                                                                  

22 At p. 93.

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 Victoria's ' Uncle Leopold'. Also Prince Albert's.) She died in childbirth in 1817 without surviving issue. If the writer's later contention as to the meaning of issue (infra) be correct, this Princess was herself exempt from the Act, her maternal grandmother being Augusta, Duchess of Brunswick-Wolfenbuttel, eldest sister of George III.

24 Queen Victoria.

25  Prince Leopold by 56 Geo. III, c. 12; Prince Albert by 3 Vict, c. 2.

26  The Royal family of Greece is a cadet branch of that of Denmark. Its correct designation is ' the house of Slesvig-Holstein-Sonderburg-Glucksburg'. (So used to fill the column ' father's surname ' in Prince Philip's marriage register, reproduced in Shew, Royal Wedding, at p. 117.)

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 Cicero).

30  Inst.l.l2.i.

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). 

35 Supra.

36 See note (2) supra.

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  London Gazette, December 12, 1936.

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 Victoria clearly did.

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 England after his marriage in 1866, but does not appear to have been naturalised.

48  It is extremely difficult to frame words which catch those persons whom it is necessary to catch and no others,

49  Kent v. Whitby (1738) 3 Brown's Parl.Cas. 487; London Passenger Transport Board v. Moscrop [1942] A,C, 332 at p. 342; Adrema, Ltd. v. Jenkinson [1945] K.B, 446 at p. 452.
50
Hutchinson v, Manchester, Bury and Rossendale Ry. (1846) 15 M & W. 314, at p. 318.
51 Other than the Duke of Windsor and his issue.   They are expressly exempt by His Majesty's Declaration of Abdication Act, 1936 (1 Edw. VIII & 1 Geo. VI, c. 3), s. 8.

52 Section 3.

53 Necessarily not so remote as their descent from George II, which gives the court jurisdiction.

54 hoc. tit,, at p. 143.
55 Idem.

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; Davenport v.  Hanbury  (1796) 3 Ves. Jun.  257, per Arden M.R. at p. 258; Hockley v. Mawbey  (1790) 1 Ves. 143, 150; Freeman v. Parsley (1797) 3 Ves. 421; Leigh v. Marburg (1807) 13 Ves. Jun. 340, 344; Bernard v. Mountague  (1816) 1 Mer.  422, 434; Head v.  Randall   (1843) 2 Y. & C. Ch.Cas. 231, 235; Hall v. Nalder (1852) 22 L.J.Ch. 242;  Ross v. Ross (1855) 20 Beav. 845, 648; Rhodes v. Rhodes (1859) 27 Beav. 413, 416; Re Corlass (1875) 1 Ch.D. 460; Edyvean v. Archer, Re Brooke [1903] A.C. 379, 384; Re Burnham, Carrick v. Carrick [1918] 2 Ch. 196;  Re Sutcliffe, Alison v. Alison [1934] Ch. 219.

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.
60  Eldest daughter of Queen "Victoria, see infra, note (61).

61 The Princess Royal Victoria (1840-1901) married the German Emperor Frederick, Princess Alice (1848-1878) the Grand Duke Ludvig IV of Hesse, Princess Helena (1846-1923) Prince Christian of Slesvig-Holstein; Princess Louise (1848-1939) married the ninth Duke of Argyll, but had no issue; Princess Beatrice (1857-1944) married Prince Henry of Battenberg. The last-named was naturalised, but only after his marriage. (Dictionary of National Biography, Supp. n, 411.)

62 Reigning Duke of Saxe-Goburg and Gotha from 1893.

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 Prussia (1828-1885), the famous ' Red Prince' of the Franco-Prussian war. George I's daughter was Queen Sophia Dorothea of Prussia (1685-1757), who can scarcely be called an English Princess at all, but is within s. 1 of the Act of Settlement, 1700.

66 Presumably she must. Otherwise a Stuart or even a Plantagenet princess might be used.

67 Princess Margaret of Connaught (1882-1920) was the first wife of the present King of Sweden.

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. 

70 Supra.                                               

71  Second Duke of Cumberland and Teviotdale, a grandson of George III. Queen Mary of Hanover's mother was Amelia, Duchess of Saxe-Altenburg (1799-1848), whose mother, Henrietta, Duchess Ludwig of Wurtemberg (1780-1857), was the youngest daughter of the Princess Royal Anne referred to in the text. The heads of the House of Hanover in the next two' generations also married the foreign issue of British princesses. They and the second Duke of Albany (reigning Duke of Saxe-Coburg-Gotha from 1900) were deprived of their British honours under the Titles Deprivation Act, 1917 (6 & 7 Geo. V, c. 47), but this has affected neither their eventual right of succession to the throne nor the incapacity (if any) they might have under the Royal Marriages Act.

72  The most striking result of the writer's contention, if it be correct, is that the second Duke of Cambridge (supra, note (MM) could lawfully have married his ' wife', Mrs. Fitzgeorge. His mother was Princess Augusta of Hesse-Cassel (1797-1889), grand-daughter of Princess Mary, Landgravine of Hesse-Cassel (1723-1771), fourth daughter of George II. He and his sisters and Princess Charlotte of Wales (supra, note (23)) were the only grand-children of George III exempt on the writer's contention. He went through a form of marriage in church (The Complete Peerage II, 499, note (c), but it is unlikely that the marriage was formally correct, as it seems improbable that banns were read or a licence obtained, in view of the substantial ' cause or impediment' then thought to exist.

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 Ch. 751, per Swinfen Eady J. at p. 753. Dicey, The Conflict of Laws (6th ed,), Rule 168, p. 758; see also Exception I, p. 777 and note (47), p. 778.

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.

77 Section 1, 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 St. George's, Hanover Square, and Queen Victoria created his second ' wife' Duchess of Inverness. (The Complete Peerage, VII, 69). The Duke of Cambridge was attended by his illegitimate sons even on State occasions. (Bodley, The Coronation of Edward the Seventh (1903) 342.) It is commonly stated (e.g., The Complete Peerage, II, 499, note (c)) that these 'marriages' were ecclesiastically binding. The language of annulment (s. 1) is, however, irreconcilable with this view. By s. 7 ot the Act for the Submission of the Clergy, 1536 (28 Hen. VIII, c. 19; 7 Halsbury's Statutes, 31) canon law is not valid when in contradiction to the express words of a statute.

81 Preamble to the Royal Marriages Act, supra. The events of 1936 clearly demonstrate that they are.

82 This is tbe position in Scandinavia. In Sweden all princely titles are usually forfeited, the Prince simply becoming ' Mr. Bernadotte'. This seems unduly drastic. In Denmark the Prince's wife is styled ' Princess', but neither she nor her husband is a ' Royal Highness ', (See the Almanach de Gotha, sub. tit. ' Danemark ' and ' Suede '.) The Duchess of Windsor is not entitled to this style (London Gazette, May 97, 1937).

* Mr. C. d'O. Farran, m.a., B.c.L.(oxon), is an Assistant Lecturer in Law in the University of Sheffield.


 

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 University of Sheffield, and was called to the Bar by Lincoln's Inn in 1947.

 

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.

 


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.

Whitehall.

S.W.1.

 

22nd February, 1952.

 

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 Connaught, Lord Carnegie and the Grown Prince of Norway and his issue. The Royal consent was not  required to the marriage of the Grown Prince of Norway, nor will it be required to that of his children, since they are all descended from an English Princess (Princess Maud,   daughter of King Edward VII) who married into a foreign family.

 

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 Westminster, 1931.

 

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 Victoria's children married foreign princes who settled in England and became naturalised British subjects, and of course the children of their marriage born in this country were British subjects. Any proposal to amend the Act might  also provoke discussion from a different point  of view, namely that the Act should be wholly repealed or at any rate that the Sovereign's consent should only be necessary in the case of some one (possibly one of her own children or descendants) under age.

 

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.


 

25th February, 1952,

 

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

 

Buckingham Palace

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. (?)

 

16th June 1952.


Mr. Dotson

 

Sir Albert Napier

Lord Chancellor

 

Royal Marriages Act,  1772

 

I attach a note of this morning's meeting: with Sir Alan Lascelles,

18th June 1952.

                        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 the 18th June, 1952

 

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.

 


 

20th June 1952.

 

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 the 18th June, 1952

 

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.

 


BUCKINGHAM PALACE

 

21st June, 1952.

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,       

Whitehall,

S.W.1.

 

7th November, 1952.

 

Dear Napier,

 

On the 15th April, 1946, you were good enough to send us a copy of a letter which you had written to Fitzmaurice at the Foreign Office regarding the contemplated marriage between the Prince of Hanover and the Princess Dowager of Hesse in connection with the Royal Marriages Act, 1772.

 

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 Victoria's daughter, who married into a foreign family, i.e. the German imperial family.  It does not appear from the papers whether the Lord Chancellor was aware of the descent in the male line.  It seems to me very doubtful whether descent from a princess who marries into a foreign family cancels the effect of descent from King George II in the male line.  For if it does a result of this principle might be that  the Act will not apply even to the descendants of Her Majesty,  since they are descended through the Duke of Edinburgh from Queen Victoria's daughter Princess Alice, who married Louis XIV,  the Grand Duke of Hesse.

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.

 


10th November, 1952.

 

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 University of Liverpool.

 

Faculty of Law,

The University,

Liverpool, 3.

4 June 1953

 

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

 

8th June 1953.

 

Dear Farran,                                                                                                    

 

Thank you for your letter of the 4th June and for sending me your two articles. I have read them with much interest. It is very convenient to possess in such a handy form all the facts which you have collected for the two articles. The one on the Royal Marriages Act has been a subject of much consideration here. The present Lord Chancellor has not been convinced by that part of your argument which results in all the descendants of King Edward VII being exempt on the ground that although descended in the male line from George II, they are also descended from a Princess who married into a foreign family. This makes it all the more desirable to take action but unfortunately at present the objections to taking action seem to outweigh the advantages.

 

In the other article it is an engaging suggestion that although express words of an Act of Parliament were necessary to make the husband of each of  the two Marys into Kings, the Duke of Edinburgh is qualified for Kingship by the Sex Disqualification Removal Act, 1919. In the past the courts have been rather sticky about applying that Act. I think the Court of Appeal refused to say that Miss Bebb and three other women were not  disqualified by sex from becoming solicitors, and the House of Lords managed to get out of letting Peeresses in their own right into the House of Lords.

                 

                                                       Yours sincerely,

 

                                                                    A.E.A.N.

 

C. d'O Farran, Esq.


 

PERSONAL AND CONFIDENTIAL

 

Privy Council Office

WHITEHALL.S.W.1.

 

14th December, 1953.

 

Dear Sir Albert,

 

I enclose the file sent me by Sir Alan Lascelles dealing with the Engagement and Marriage of Princess Elizabeth.  When you and  the Lord Chancellor have seen it I should be grateful if you would return it to me with Sir Alan Lascelles' letter, which I have left

attached to the front.

 

If I am right in the strict legal view expressed last week I feel that it would be inadvisable for The Queen to act purely on a legal basis.

 

I am not sure whether the method to be adopted is a matter on which I should express  an opinion, but it seems to me that a possible course to follow might be:-

 

1. The Queen he told that in law the decision is one for Her and Her alone, hut that

it is felt it would be imprudent to arrive at a decision before first consulting the Cabinet  and the Dominions.

2.The Cabinet and the Dominions (through the Governor Generals) he informed that while The Queen realises that the decision is one to be made by Her personally She would, before making a decision, wish to consider their views.

 

Yours sincerely,

 

            W. G. Agnew

 

The Honourable

Sir Albert Napier. K.CB., Q.C. ,

HOUSE OF LORDS.


Sir Albert Napier

 

Lord Salisbury w. like a copy ? ? of my minute on the R.M. Act.

 


14th December 1953

 

My dear Lascelles,

 

I enclose for your information a copy of a letter which I have written to Agnew and a copy of the note which I enclosed.

 

Although in writing to Agnew I have called it a departmental answer, I can tell

you privately that the note represents the considered opinion of the Lord Chancellor.

 

Yours sincerely,

 

A.E.A. Napier

 

The Right Honourable

sir Alan Lascelles, G.C.B., G.C.V.O., C.M.G., M.C.


 

PRIVY COUNCIL OFFICE,

WHITEHALL,S.W.1.

 

15th December, 1953

 

Dear Sir Albert,

 

Thank yon for your letter of the 14th December enclosing a note on the construction of the Royal Marriages Act.

 

I entirely agree it is most unlikely that a situation would arise where, at a Council at which the Sovereign was declaring consent to a marriage under the Royal Marriages Act, a Privy Counsellor stepped forward to express his disapprobation. I was, however, asked to advise what the position would he should such a thing actually occur.

 

My view is that, whatever is done in practice, there is in this case no legal obligation upon the Sovereign to seek or act on the advice of His Ministers.  It follows, I suggest, that if at such a Council a Privy Counsellor protested it would be quite proper to inform him that he had been summoned merely as a witness and that on that particular occasion he was not present in the role of a counsellor or adviser.  Although the situation is unlikely to arise I think Sir Alan Lascelles would like to know whether my view is correct.

 

I should he most grateful if you would he kind enough to reconsider this one point and let me know whether you agree.

 

Would you please return the manuscript note I left with you when I saw you and the Lord Chancellor last week.

 

Yours sincerely,

 

            W.G. Agnew

 

 

The Honourable

Sir Albert Napier. K.C.B., Q.C.,

HOUSE OF LORDS, S.W.1.


 

14th December, 1953.

 

The question of the construction of the Royal Marriages Act which you propounded in the Lord Chancellor's room has now been considered.  I enclose a note giving our departmental answer.

 

A. E. A. NAPIER.

 



 

SECRET

 

The legal position under the Royal Marriages Act is that the Sovereign is not required before signifying his previous consent to a marriage which comes within the scope of that Act to obtain the advice or assent of His Privy Council. The Act requires that the consent

shall be signified under the Greet Seal and declared in Council.  I do not think that this can be interpreted as meaning more then it says. It would not have been at all consistent with the personal policy of George III to submit his views upon the propriety of a Royal Marriage to the consideration of His Council, and I see no reason why the words should in their context be given any extended meaning.  The purpose of the provision is to give solemnity end notoriety to the act of the Sovereign for which further provision is made by the words in the immediately following parenthesis.

 

But, though this is the legal meaning of the Statute, it by no means follows that the Sovereign should act under it except with the consent of His Ministers.  I think that this would depend on the circumstances of the particular case. Many quite unimportant persons are now brought within the scope of the Act and it might well be that the granting or withholding of the Royal Assent could be a matter of the merest routine and would have no political character.  On the other hand the proposed marriage might be of someone near the Throne, in which case the constitutional duty of the Sovereign would be, as in any other act of political consequence, to consult and act upon the advice of Ministers.  The last words of section 2 of the Act themselves indicate that such a marriage may be a matter of national concern. It would, moreover, be a matter for the Sovereign's Ministers to determine into which category a particular case fell.  For, if the act of the Sovereign was publicly criticised it would be for the Ministers to defend

it as if it were their own.  It is unnecessary to add that the advice given to the Sovereign by His Ministers might be greatly influenced by His own views.

 

If this is so, the situation as visualised by Agnew will not arise.  He feared that in the event of the Sovereign giving assent in Council to a proposed marriage a Frivy Counsellor there present might express his disapprobation by stepping out of line or otherwise.  But the assent of the Sovereign, having been (upon the assumption that

I have made) given on the advice of Ministers if it was in any sense a matter of political consequence, the Council would in the ordinary way be composed of Counsellors who supported the Ministers' decision.  This would not, of course, exclude the theoretical right of any Privy Counsellor to tender his advice to the Sovereign, but he would not be

given the opportunity of doing so at the Council at which the assent was declared.

 

Lord Chancellor’s Office

House of Lords

14th December 1953

 


 

15th December, 1953.

 

Thank you for your letter of the 14th December enclosing the interesting file sent to you by Sir Alan Lascelles dealing with the engagement and marriage of Princess Elisabeth.  Having looked at the file, we think that there is no need to alter the note enclosed in my letter to you of yesterday.  I sent a copy of the note to Lascelles, but I omitted to tell you so in my letter.

 

The note makes no mention of the Dominions, and, as your letter and the file do mention them, I ought perhaps to say something about them in this letter. I would drew a sharp distinction between (1) consulting the Dominions beforehand as to whether the Sovereign's consent should be given to a marriage,   and (2) declaring the consent in the Dominions when the Sovereign had decided to give it.

 

Whether there should be consultation beforehand and what form it should take are questions which should, I think, be settled by the Cabinet as part of the Cabinet's function in advising the Sovereign;    and in this matter the Cabinet could have the benefit of the views of the Secretary of State for the Commonwealth.

 

The form in which the Sovereign's consent should be declared in the Dominions is comparatively unimportant.  Each Dominion could, I think, be allowed to choose the form of declaration in that Dominion, and even choose whether there should be a declaration at all there, as long as it does not interfere with the procedure in the Privy Council here under the Royal Marriages Act.

 

I return Lascelles' file, with many thanks, and also the manuscript note which you left here last week.

 

The answer to the question in your letter of the 15th December is "Yes".  The Privy Counsellor who protested during the meeting of the Council at which the Sovereign was declaring his consent could be properly told that he was summoned as a witness and not in order to seek his advice.  But in saying this I do not went necessarily to exclude other ways of expressing the same proposition; or other ways of expressing disapproval of his conduct.

 

                                   A. E. A. NAPIER.

 

 

 

W. G. Agnew, Esq., C.V.O.


 

BUCKINGHAM   PALACE

 

15th December, 1953.

 

My dear Napier,

 

Thank you for your letter of 14th December with its enclosures, which I will file here.

 

Yours sincerely,

 

            A. Lascelles

 

The Honourable

Sir Albert Napier, KCB., QC.


 

NOTE FOR FILE

 

Edward Ford came to see me to-day at his own request on a point arising under the Royal Marriages Act. After hearing what he had to say, I took him in to see the Lord Chancellor.  After a discussion, the Lord Chancellor said he' would take an opportunity of speaking to Lord Salisbury and would then write to Edward Ford.

 

            a.e.a.n.

 

25th February. 1954.


 

ROYAL MARRIAGES ACT

 

This minute should be read in conjunction with the minute I wrote to Sir Alan Lascelles some time ago on the subject of the Royal Marriages Act.

 

I adhere to the view which I then expressed.  It follows that The Queen can lawfully consent to Captain R's proposal without taking the advice or Her Ministers and she can do so with constitutional propriety in view of the remoteness of Captain R from the throne.  The single factor which might cause some doubt is that Captain R wishes to marry a divorcee and it might be said that The Queen, by giving or refusing her assent to such a marriage, aligned herself on one side or the other in a matter of public controversy.      But I think that The Queen's own opinion and wishes should be paramount in such a question and, though she might properly seek advice if she thought fit, in the end her own view ought to prevail.  It is therefore not a matter in which Her Mnisters are concerned to advise her unless asked to do so.

 

I am asked whether The Queen's consent or refusal would attract more publicity.  I think probably the latter; for, whereas consent would mean only a notice in The Gazette, refusal would, if Captain R remained of the same mind, result in his giving notice to the Privy Council under s.2 of the Act and there would be at least a serious risk of some busybody taking the matter up in either House of Parliament.

 

I am asked next whether an awkward precedent would be created, I do not think so.  I wish it to be understood that I am dealing only with cases where the proposed marriage is of a person remote from the throne.

 

I am asked finally whether The Queen' s consent must be only for a marriage in church or could be for a civil marriage.  This question is asked because the first section of the Act prescribes that the consent is to be "set out in the licence and register of marriage and to be entered in the books of the Privy Council" and this phraseology suggests a particular form of marriage, but I think that these words, and particularly the word "licence", refer only to the procedure which then prevailed.  The Queen having given her consent,  the party may then marry according to whatever form of marriage is lawful.  If a licence is required for that purpose, the consent must be set out therein.  But, if no licence is required, the consent is nevertheless effectively given.

 

I have consulted the Lord President of the Council upon what I have written above and he authorises me to say that he concurs.

 

I must now add that my attention has been called to the complications that arise from the fact that the Marriage Acts (Lord Hardwicke's Act 26 Geo.  II chap. 33 and the Marriage Acts of 1823 and 1836) do not apply to "Royal Marriages" within the Royal Marriages Act, 1772.  If, as appears to be the case, Captain R's marriage comes within the latter Act, those who are advising him should be careful to see that his marriage is validly celebrated according to law.

 

3rd March 1954


 

3rd March, 1954

I now enclose the Lord Chancellor's opinion on the matter on which you consulted him.  I am sending a copy to Agnew.

 

                  A. E. A. NAPIER.

 

Major Edward Ford,  C.B., M.V.O.


 

3rd March, 1954.

 

My dear Agnew,

 

I enclose a copy of the Lord Chancellor's opinion on the matter which he discussed with you yesterday, and I am telling Edward Ford that I have done so.  You will see that there is an addition about marriage in a Registry Office.  So suggestions are made as to how to effect a valid marriage because it was unnecessary to do so.  It is a matter which the legal advisers must be fully competent to do.  The omission does not imply any difference from your view as to the various ways in which a valid marriage could be effected.

 

I return the documents you left here.

 

A. E. A. NAPIER.

 

W.G.  Agnew,  Esq.,  C.V.O.

 


BUCKINGHAM PALACE                              

 

3rd March, 1954.

 

Dear Sir Albert

 

I am writing to acknowledge with many thanks the receipt of the Lord Chancellor' s Opinion enclosed with your letter of 3rd March.

 

I will send this forthwith to Adeane who I know will he glad to have it by him if The Queen's permission is sought.

 

Yours sincerely,

 

            Edward Ford

 

The Honourable

Sir Albert Napier, KCB., QC.


 

Whitehall.S.W.1

 

4th March, 1954.

 

Dear Sir Albert,

 

Thank you for your letter of the 3rd March enclosing a copy of the Lord Chancellor's opinion on the points raised by Edward Ford.

 

I have read this with great interest and I am sure Edward Ford will be relieved as the Lord Chancellor's opinions are those for which Edward Ford had hoped.

 

Yours sincerely,

 

            W. G. Agnew

 

The Honourable

Sir Albert Napier, K.C.B., Q.C.,

HOUSE OF LORDS.

 


Sir George Coldstream to see

 

Notice given between Oct 14th and Oct 20th 1955.

 

* 33   Lieutenant-Colonel  Lipton:    To  ask the Prime Minister,  whether  he  will  introduce legislation to repeal or amend the Royal Marriage Ad, 1772.

 

Answer Oct 25th 1955.

 


Hansard

Oral Answers             1 NOVEMBER 1955             p. 848

 

ROYAL MARRIAGES ACT, 1772

 

The following Question stood upon the Order Paper:

 

52. Lieut.-Colonel Lipton: To ask the Prime Minister whether he will introduce legislation to repeal or amend the Royal Marriages Act, 1772.

 

Mr. Mellish: On a point of order. I wish to seek your guidance and help, Mr. Speaker. On the Order Paper is Question No. 52, in the name of my hon. and gallant Friend the Member for Brixton (Lieut.-Colonel Lipton), who has deferred the Question on a couple of occasions. In view of the circumstances, could you not, in your capacity as Speaker, appeal to my hon. and gallant Friend to have the decency to withdraw this Question?

 

Mr. Speaker: My only real concern is whether the Question is in order or not. It is in order to put a Question down which asks for action, so the hon. and gallant Member's Question is down on the Order Paper.

 

Lieut.-Colonel Lipton: Do I understand you to say now, Mr. Speaker, that the Question is definitely in order?

 

The Prime Minister: I will, with permission, answer this Question.

 

I have had this possibility very much in mind. I should, however, warn the House that this Act is of concern, not to the United Kingdom alone, but to all the Commonwealth countries of which Her Majesty is Queen ; and amending legislation could not be undertaken here without their concurrence.

 

Lieut.-Colonel Lipton: Have Her Majesty's Government therefore decided, after considering this Act of 1772 in the light of 1955, that it still provides a useful and necessary weapon of control which Her Majesty's Government at the moment are reluctant to abandon, no matter what personal ordeal is involved for anyone?

 

The Prime Minister: In view of the hon. and gallant Member's imputations— which I think they really are—about the Act, I ought to add that the advice of Her Majesty's Government has neither been sought nor given to the Queen during recent events.

 

Mr. J. T. Price: On a point of order. Irrespective of the merits of the Question

which the Prime Minister has just answered, may I ask, Mr. Speaker, on what grounds the Prime Minister decided to answer Question No. 52 and to by-pass the rest?

 

Mr. Speaker: It is entirely a matter for the Prime Minister. I suppose he thought the Question was of sufficient public interest, and he asked my permission to answer it before he did so.

 

The Prime Minister: It was a difficult decision to take. This Question has been on the Order Paper for a long time, and as there has been a good deal of speculation about it, and as it has not been withdrawn, I thought it better that it should be answered.

 

Several Hon. Members rose------

 

Mr. Speaker: Order. We have finished with that Question now. There seems to be no Ministerial responsibility in that matter at all.

 


 

Outward Telegram from Commonwealth Relations Office

 

TO :  U.K.   HIGH COMMISSIONER IN CANADA (ACTING)

U.K.   HIGH COMMiSSIONER IN AUSTRALIA

U.K.   HIGH COMMISSIONER IN NEW ZEALAND

U.K.   HIGH COMMISSIONER IN SOUTH AFRICA

U.K.   HIGH COMMISSIONER IN PAKISTAN

U.K.   HIGH COMMISSIONER IN CEYLON

 

RPTD;  U.K. HIGH COMMISSIONER IN INDIA

U.K. HIGH COMMISSIONER IN THE FEDERATION OF RHODESIA AND NYASALAND

 

(Sent 15-20 hours 2nd November, 1955)

 

EN CLAIR

 

W. No. 267  PRESSE 

 

Repeated U.K. High Commissioners in Delhi and Salisbury.

 

ROYAL MARRIAGES ACT, 1772

 

Following is from Hansard for November 1st. Begins.

 

Lieut.-Colonel Lipton asked the prime Minister whether he will introduce legislation to repeal or amend the Royal Marriages Act, 1772.

 

Prime Minister said: I will, with permission, answer this Question.  I have had this possibility very much in mind. I should, however, warn the House that this Act is of concern, not to the United Kingdom alone, but to all the Commonwealth countries of which Her Majesty is Queen;  and amending legislation could not be undertaken here without their concurrence.

 

Lieut.-Colonel Lipton said: Have Her Majesty's Government therefore decided, "after considering this Act of 1772 in the light of 1955, that it still provides a useful and necessary weapon of control which Her Majesty's Government at the moment are reluctant to abandon, no matter what personal ordeal is involved for anyone?

 

The Prime Minister said : In view of the hon. and gallant Member's imputations - which I think they really are - about the Act, I ought to add that the advice of Her Majesty's Government has neither been sought nor given to the Queen during recent events. Ends.

 

Copy to:-

D.II

 

10 Downing Street                     Mr.  D.B.  Pitblado

House of Lords                           Sir George Coldstream

H.M. Ambassador for U.K.   in Dublin

U.K.  Embassy Washington        Mr.  J.R.A.  Bottomley

U.K. Delegation to  the

U.N.,  New  York              Mr.   M.E.  Allen

Accra,  Governor's Office       Mr.  F.E.  Cumming-Bruce

 

CONSTITUTIONAL_DEPT.


 

Lieutenant-Colonel Lipton:   To ask the Prime Minister, whether he will submit proposals to the forthcoming Conference of Commonwealth Prime Ministers to amend the Royal Marriages Act, 1772.

 

DRAFT    ANSWER                                                          

 

No, Sir.

 

NOTES

 

1. Previous Questions

 

On the 1st November, 1955,  (Hansard, Col. 848), Lieutenant-Colonel Lipton asked the following Question:-

 

"52. Lieutenant-Colonel Lipton: To ask the Prime Minister whether ha will introduce legislation to repeal or attend the Royal Marriages Act, 1772."

 

The Prime Minister replied:-

 

"I have had this possibility very much in mind.    I should, however, warn the House that this Act is of concern not to the United Kingdom alone, but to all the Commonwealth countries of which Her Majesty is Queen: and amending legislation could not be undertaken here without their concurrence."

 

Lieutenant-Colonel Lipton's Supplementary was as follows:-

 

"Have Her Majesty's Government therefore decided, after considering this Act of 1772 in the light of 1955, that it still provides a useful and necessary weapon of control which Her Majesty's Government at the moment are reluctant to abandon, no matter what personal ordeal is involved for anyone?"

 

to which the Prime Minister replied:-

 

"In view of the hon. and gallant Member's imputations -which I think they really are - about the Act, I ought to add that the advice of Her Majesty's Government has neither seen sought nor given to The Queen during recent events."

 

2. Probable Supplementary

 

Lieutenant-Colonel Lipton may ask:-

 

"whether H.M.G. are aware that a large body of opinion in the United Kingdom and in Commonwealth countries regards the machinery of the Act of 1772 (quite apart from the merits of control by The Sovereign of marriages of members of the Royal Family) as an archaic survival from the 18th Century, and offensive to many shades of opinion?"

 

The Answer to such a Supplementary might be:-

 

"I am well aware of the objections felt to the machinery of the Act of 1772, but I am also aware of the very divergent views which are  held on the question what should take its place. This is an Act which has stood and been continually acted upon for 184 years, and, as I said in answer to the hon. and gallant Member on the 1st November last, it concerns all the countries of the Commonwealth. Much consultation must take place throughout the Commonwealth before we could get to the stage of submitting definite proposals for amendment of the existing law."

 

3. Objections to the Act of 1772

 

The chief objections are the following:-

 

(1)  It is inherently unsatisfactory that personal and constitutional questions of such high importance should still depend on the operation of an 18th Century Statute which was admittedly passed hurriedly, and in the face of considerable opposition, to deal with an ad hoc situation created largely by the unsatisfactory conduct of King George III's brothers.

 

(2)  The legal interpretation of the Act is uncertain, but

 

(3)  On the prevalent view of its construction, its ambit is now far too wide: it extends, or may extend, to classes of persons whose connection with the Throne is very remote. Some think that it should at least be confined to The Sovereign's children and grandchildren and the Heir Presumptive.

 

(4)    Although many approve in principle of control of marriages which are likely to affect the succession to the Throne, it can reasonably be argued that the sanctions against marriages without consent imposed by the Act of 1772 are too strong.    A marriage

without consent is void and the offspring of the union bastardised.    There is a savage penalty on persons celebrating or being present at the marriage.

 

(5)    S.2 of the Act, which requires an applicant over the age of 25 who has been refused consent to give notice to the Privy Council and then wait a year, during which either House of Parliament may prevent the marriage by passing a resolution, is contrary to modern ideas of propriety and fair-dealing.

 

4. It is considered that the repeal or amendment of the Act of 1772 would require the assent of the Parliaments of the Dominions as well as the Parliament of the United Kingdom,  because the preamble to  the Statute of Westminster, 1931, requires universal consent to any alteration in the law "touching the succession to the Throne".    This convention does not,  however, prevent the United Kingdom Parliament from passing legislation in advance of any necessary parallel legislation by the Dominion Parliaments (and in fact the Abdication Act, 1936, was passed here before action was taken in the Dominions).    Apart from this constitutional convention,  it is essential, on practical grounds, that the law as to the necessity for Royal consent to marriages of persons

near to the succession to the Throne should not operate differently here and in the Dominions, for otherwise there would,  or might, be different Sovereigns in different parts of the Commonwealth.

 


 

Lord Chancellor

 

Lieutenant-Colonel Lipton's Question

 

So far as you and Lord Salisbury are concerned the matter rests thus:—

 

"No, Sir.      Her Majesty's Government are not yet in a position to put forward proposals on this question."

 

Supplementary Answer

 

"I am well aware of the objections felt to the machinery of the Act of 1772, but I am also aware of the very divergent views which are held on the question what should take its place.  This is an Act which has stood and been continually acted upon for 184 years, and, as I said in answer to the hon. and gallant Member on the 1st November last, it concerns all the countries of the Commonwealth.  Much consultation must take place throughout the Commonwealth before we could get to the stage of submitting definite proposals for amendment of the existing law."

 

12th June. 1956.


 

House of Commons

12th June 1956

 

col. 242-47.

 

ROYAL MARRIAGES ACT, 1772

 

47. Lieut-Colonel Lipton asked the Prime Minister whether he will submit proposals to the forthcoming Conference of Commonwealth Prime Ministers to amend the Royal Marriages Act, 1772.

 

The Prime Minister: It it contrary to normal established practice to discuss in advance the agenda for Commonwealth Conferences. I wish, however, in this instance, to say that Her Majesty's Government in the United Kingdom do not intend to submit any such proposals at the forthcoming Conference.

 

Lieut-Colonel Lipton: Will the Prime Minister bear in mind that this antiquated law unfairly restricts the personal freedom of many people now some distance from the direct line of succession, and that if any changes are to be made, they ought to be made now, before any more instances of individual difficulty arise.

 

The Prime Minister: I am aware of the objections which are felt to the machinery of this Act, but I am also very much aware of the divergent views which are held as to what should take its place. In this Commonwealth matter, it would not be right or proper for me to go beyond what. I have said.

 


SECRET

 

ROYAL  MARRIAGES

 

This note has been put together from the best sources available.  It is not, however, in any sense legal advice and if any Action were to be undertaken with regard to any of the matters dealt with in it, it would be essential first to consult the Law Officers of the Crown.

 

It must be remembered that whenever the word "Parliament" is used it may possibly include one or more of the Parliaments of the other countries of the Commonwealth, even though (as is shown in paragraph 4  below) their exact legal relationship to the problem has never been settled. Moreover, even if no final decision had been taken that a change in succession would be necessary, some of the Governments of the other Commonwealth countries would certainly expect to be privately informed of - if not actually consulted about - the possible marriage of anybody very near the Throne.

 

1.  The Royal Marriages Act of 1772.

 

By this Act no descendant of the body of King George II, except the issue of Princesses married into foreign families, can sake a valid narriage unless the King or Queen Regnant has given consent under the Great Seal (i.e. before the Privy Council).

 

When, however, such a descendant has reached the age of 25, he (or she) may give notice to the Privy Council of a wish to marry.  If, after a further 12 months, both Houses of Parliament have not expressly declared their disapprobation of the proposed marriage, it can then, but not before, be legally contracted without the sanction of the Sovereign.

 

Any person, therefore, coming under the terms of the Royal Marriages Act and wishing to contract a marriage, of which the Sovereign disapproves or to which the sovereign is for any reason unable to give assent in Council, must give notice to the Privy Council, which notice must be gazetted.  After 12 months he or she may marry legally, provided Parliament has not obstructed the marriage.  There is, however, one difficulty with regard to the actual marriage. If one of the parties has a previous spouse still living and the Church of England adheres to its Canon Law prohibiting the marriage of divorced persons in Church, the following difficulty arises: members of the Royal Family have been excluded from the scope of the Marriage Acts of 1825 and 1836, and, therefore, cannot legally be married in a Registry Office in England.  Thus it might be impossible for them to be married in England at all - since a Registrar could not and the Church would not perform the ceremony. There would appear to be no impediment to a marriage in Scotland or in certain Commonwealth or foreign countries overseas.

 

2. The Succession

 

If the Royal person concerned is near the Throne, in line of succession, and is ready, to order to facilitate the marriage, to renounce for himself or herself and his or her children any rights of succession to the Throne, then the renunciation of such rights would probably be made by a Declaration, the terms of which would subsequently have to be incorporated in a special Act of Parliament (as in King Edward VIII's Declaration of Abdication Act 1936, 1 Edw. 8 chap. 3).

 

The 1936 Act contained three short clauses:

(1)   Giving effect to the King's declaration of Abdication

(2)   Renunciation of all rights to the succession.

(3)   taking His Majesty and his issue out of the scope of the Royal Marriages Act 1772.

 

3.     Conclusion

 

If a member of the Royal Family, therefore, wishes to contract a marriage to which the sovereign is not prepared or able to give formal sanction, he or she can do so in one

of two ways:

(a)   Either by giving notice to the Privy Council after reaching the age of 25 and carrying outside England after a farther lapse of 12 months, provided that there has been no expression of Parliamentary disapproval.                                  J

(b)   Or by signing a declaration of abdication of all rights to the succession (which is subsequently embodied in an Act of Parliament) which could also specifically exclude the person concerned from the operation of the Royal Marriages Act 1772.

 

If it was decided to marry in England, it would probably also be necessary to exclude the person from the restrictive clause exempting members of the Royal Family from the operation of the Marriage Act 1836.

 

Either of these courses would disclose a firm intention to marry by the member of the Royal Family concerned.

 

In (a) if he or she changed his or her mind during the 12 months period, nothing would have been done to change his or her status as a member of the Royal Family in the line of succession.  Once the marriage had taken place or simultaneously with it, an Act of Parliament excluding him or her and his or her issue and descendants from the succession could follow.

 

If (b) were adopted, and the member of the Royal Family changed his or her mind after the passing of the Act and    . before marriage, he or she would be then have been excluded from the succession and could not be put back except by a further Act.

 

A possible compromise between (a) and  (b) might be to give notice to the Privy Council, but not to have any Bill  presented to Parliament until near the end of the 12 months periods

 

4.     Commonwealth Countries.

 

Since the Statute of Westminster (1938) a change in the succession requires the assent of all the self-governing countries of the Commonwealth as well as that of the Parliament of the United Kingdom.  It is, therefore, very important that any intention to do something which might require such legislation should be notified to Commonwealth Governments at the same time as to the United Kingdom Government.  Whether it would be necessary for legislation to be gassed with regard to the change is succession in each  Commonwealth country is uncertain.  It is quite clear, however, that it would be essential for their consent to be obtained to any action taken in the United Kingdom with respect to it.

 

For this reason - if for no other - it is important that no premature announcement of an intended marriage, which might raise such questions, should to made.

 

5       Title

 

A further question is whether any action of the kind outlined above has the effect that the person concerned loses the title of Royal Highness.

 

It seems unlikely that such a consequence would follow an abdication of a right to succession.  King Edward VIII kept the title of Royal Highness, after his abdication and has ever since been accorded a formal precedence among the members of the Royal Family.

 

29th June 1955


 

SECRET

 

Aide Memoire on Royal Marriages

 

I.            Except for some minor points of statutory history consequent on the process of consolidation and repeal, the note is legally accurate. There are however some additional points which I think are worthy of consideration.

 

II.           I deal first with the technical aspects:

 

A.   The Marriage Acts of 1823 and 1836 were repealed (with savings which are not material for the present purpose) by the Marriage Act, 1949, and the Registration Service Act, 1953. These were both Consolidation Acts, and they preserved the law whereby neither the Act of 1823 nor the Act of 1836 applied to marriages by the Royal Family -see S.79(3) of the Marriage Act, 1949.

 

B.   Marriages of the Royal Family were excluded from the purview of the Foreign Marriage Act, 1892, so a member of the Royal Family could not be married abroad before a British Ambassador, or a Consul or by the Commanding Officer of one of H.M's Ships.

 

C.   The Royal Marriages Act, 1772, applies to marriages celebrated abroad, though the marriage may be valid in the foreign country where it was celebrated (Sussex Peerage Case 1844, 11 Cl. &  F. 85).

 

D.   The Marriage Acts of 1823 and 1836 and their modern counterpart are English Acta not extended to Scotland. The system of marriage before a registrar was introduced into Scotland by the Marriage (Scotland) Act, 1939. There is no exception in this Act for Royal Marriages, and a member of the Royal Family could lawfully be married before a registrar in Scotland, provided that he or she was not debarred at the time under the Act

of 1772.

 

III..                      I venture to say a word about the wider constitutional position with which the note, no doubt deliberately, did not deal

 

A.   The Act of 1772 does not in terms require the Sovereign to obtain the advice or assent of the Privy Council before signifying His previous consent to a marriage which comes within its scope.  This is no doubt the legal position, but in the circumstances of the person concerned being near the Throne, it would, in my view be the constitutional duty of the Sovereign to consult and act on the advice of Ministers. For, if the act were publicly criticised, it would be for Ministers to defend the Act in Parliament and elsewhere. It is unnecessary to add that the advice given to the Sovereign by His Ministers would be greatly influenced by His own view.

 

B.   There is no precedent which has settled the position of H.M's Ministers in other countries of the Commonwealth in relation to the Royal Marriages Act of 1772. Especially in view of the words of the preamble to that Act viz. "And being sensible that marriages in the Royal Family are of the highest importance to the State ....".  I agree that in fact the Governments of other countries would certainly expect to be privately informed and given the opportunity of expressing their views about the marriage of anyone close to the Throne.

 

C.   The procedure in section 2 of the Royal Marriages Act, 1772, only arises in the case of a marriage disapproved of or dissented from by the Sovereign.

 

D.   On the assumption that the Sovereign has acted en Ministerial advice in disapproving or  dissenting, a theoretical difficulty arises about the Government "putting the whips on" to defeat any motion in Parliament in pursuance of section 2 of the Act of 1772 objecting to the marriage. I think, however, that in any but an extreme case outside reasonable contemplation (a) it is very doubtful if such a motion would be made, (b) if made, it would be defeated by the good feeling and good taste of the House.

 

E.  If the person concerned with the marriage wished to renounce his or her rights to the Throne, it would of course be a matter for Ministerial consideration and advice before they introduced a Bill into Parliament to change the succession. Apart from the broad questions, there is the narrower point that, if there were inserted in the Bill an exemption from the Royal Marriages Act, 1772, it might be said to be inconsistent with the previous disapproval or dissent.

IV.                         I agree with what is set out in the Note under the headings

"Commonwealth Countries" and "Title".


574-589

 

to be transcribed

 


My dear Prime Minister

 

In view of your letter I have been doing some research into the Royal Marriages Act, and I have tried to approach it from the following angles:

1. the powers of the Sovereign over marriages in the Royal Family before the Act

2. the difference in these powers made by the Act

3. the contemporary opposition to the Act

4. to how many living persons does the Act now apply

5. the desirability of the repeal of the Act and the effect of the repeal on the sovereign’s powers

6. ?

7. the position of the countries in the CW.

 

I enclose a memorandum dealing with these points.

 

You will see that I reach the following conclusions:

(1) it is very doubtful whether the Act applies to Princess Margaret.  As at present advised I do not think that it does apply to her.

(2) the Act has no pride of ancestry, is badly drawn and uncertain and embarrassing in its effects

(3) I suggest that you take HM’s pleasure as to whether she thinks that it would be sufficient for her authority over the Royal Family ???

A. the common law power of ? and approbation of the marriages of her children and grandchildren and the heir presumptive without

(a) the ?

(b) the the ?

B. the power of Parliament to exclude from the succession by statute if necessary ??

(4) Although I think that the Act should be repealed subject to HM’s view on (3) above, it must be feared that it would still be necessary to have a billto give effect to Princess Margaret’s renunciation of her rights.  It seems to be Her own and the general opinion that she should do so. In my view it would be better to introduce the measure repealing the Royal Marriage Act fiest but to state that it would be followed by another giving effect to HRH’s renunciation.

 

I am sorry to deluge you with paper.

 

Yours ever

 

 

 


Marriage ceremony

 

The Marriage Act 1836 introduced the method of marriage before a registrar but section 45 of the Act provided that the Act should not extend to the marriage of any of the Royal Family.

 

The Act of 1836 was repealed and replaced by the Marriage Act 1949, s. 79(5) of which provides that nothing in the Act is to affect any law or custom relating to the marriage of members of the Royal family.

 

Thus legislation would be necessary before a member of the Royal Family could be married in England before a registrar and the position would dnot appear to be affectd by the repeal of the Royal Marriages Act, 1772.

 

Moreover it would not  be possible without ad hoc legislation for the marriage to take place in the circumstances contemplated in the present case.

 

Section 26 of the Marriage Act 1949 confines the marriages which may take place on a registrar’s certificate (as opposed to marriages after publication of banns and marriages on the authority of a special license or an ordinary licence granted by the ecclesiastical authority) to –

(1) marriages in a registered building

(2) marriages in the office of a superintendent registrar

(3) marriages according to the rites of the Church of England

apart from two special cases not relevant here.

 

As to (1), a registered building must be one ? as a place of religious worship and the appiclation for registration must be supported by a certificate signed by 20 householders stating that they have used the building as their usual place of public religious worship for at least one year before the application (s 41 of 1949 Act).

 

As to (3), a marriage according to the rites of the Church of England can be solemnized only by a clergyman (s. 17 of 1949 Act).

 


Buckingham Palace

 

Private

 

27.7.55

 

My dear Lord Chancellor,

 

I am writing to thank you for seeing me yesterday afternoon and for all that you told me.  It is a comfort to me, as I am sure it will be to the Queen, to know that you are prepared at any time to advise Her Majesty in your capacity of Keepr of the Queen’s conscience.  As you know I think that it is all important that if the matter of our discussion becomes a live issue the Commonwealth Governments (exccluding India) should be brought into it at once, but I do not fear that any one of them could or would quarrel with the manner in which, at this stage, your advice is being sought or given.

 

I have read your Aide Memoire on Royal Marriages very carefully, particularly paragraph III, and I will take an early opportunity of giving it to the Queen.

 

Before our conversation yesterday I had not fully appreciatetd the point which you made in paragraph III A: that it would be the constitutional duty of the Sovereign to consult and act on the advice of Ministers in giving or refusing assent to the marriage of a Royal person – particularly if that person were high up in the line of succession to the throne.

 

Nor had I properly understood that if the person concerned with the marriage wished to renounce his or her rights to the throne it would primarily be a matter for Ministerial consideration and advice.

 

I now hope that I understand both these points correctly.

 

It would, as I explained, be the greatest help to the Queen if you could tell me what course Her Majesty should seek to pursue if she were confronted with a situation such as we have envisaged.

 

In other words should she counsel the member of the Royal Family concerned to ask permission to marry through the Privy Council – knowing that such permission would be unlikely to be given – in order that the procedure in section 2 of the Royal Marriages Act 1772 could then be followed? Or would it be preferable for the Queen to ask the Government of the day to introduce a Bill straight away to remove the member of the Royal Family from the succession and, at the same time, from the provisions of the Royal Marriages Act 1772?

 

yours sincerely,

 

Michael Adeane


 

TOP SECRET PERSONAL

 

4th August 1955

 

First of all, may I thank you for your letter conveying Her Majesty's permission and most kind and gracious message. Coldstream has told you that I shall be back in England on Saturday, 20th August. As I said in my letter, I can, of course, return earlier. Moreover, I can give as a reason the preparation for the Malta Conference.

 

I have been considering the problem - I hope unnecessarily - from the angle of being faced with quick action.  I am therefore setting out the points which I think that you should have specially in mind.

 

As I see it, the procedure of the Royal Marriages Act would work like this:-

 

(1)  An application by the Royal Personage concerned to Her Majesty for Her consent to be signified under the Great Seal and declared in Council.

(2)  A refusal (after advice as set out in my aide memoire).

(3)  Thereafter notice by the Person concerned to the Privy Council which is directed to be entered in the books thereof.

(4)  Delay of a year (N.B. Both Houses of Parliament would have to carry a Motion to defeat the Royal Personage's wish. The probability is no Motion in either House but a Motion in the Commons is possible.)

 

The unpleasant features of that course are:-

(1) A leak at the stage of taking advice and unpleasant publicity.

(2)  Questions in the various Parliaments of the Commonwealth to the respective Governments as to the advice given,

(3)  The possibility of undignified Debate in these Parliaments.

(4)  The possibility that there would be opposition here or in any Commonwealth country to the Royal Personage or Her issue succeeding to the Crown.

(5)  The question of the future status of the Royal Personage's husband would inevitably arise, e.g. whether rank should be conferred upon him or how far this would be considered an act of recognition inconsistent with the refusal of consent. (The question of financial provision would also require consideration.).

 

        I deal with each of the foregoing matters in turn.

 

(1} There would be unpleasant publicity in any event when the notice of the intended marriage is given to the Privy Council. It is for consideration whether the publicity at an earlier stage makes any material difference.

(2) and (3) As stated in the aide memoire, Ministers must assume the responsibility for the advice given and take the course which would cause least embarrassment to all concerned.

(4) My own view is that with our happy ostrich-like national characteristics, no-one would treat this as a serious possibility.

(5) This difficulty must exist and one can only hope that solviter ambulando would apply.

 

I now consider the alternative of asking the Governments of the Commonwealth to agree to legislation for exclusion from the succession and freedom from the Royal Marriages Act. I venture to note the following points:-

(1)  The expression of the wish to be excluded, although it would receive sympathy, will do harm to the Monarchy as an institution.

(2)  The real purpose of the legislation will be taken to be to permit the Royal Personage to marry a divorced person.

(3)  This would embarrass a number of Commonwealth Governments who would be reluctant to agree.

(4)  Any Government in which I have served would be anxious to meet Her Majesty's wishes, yet I wonder if Her Majesty would desire to put the Government in the position of being politically embarrassed.

 

On the facts at present before me, my inclination leans towards the first of these alternatives.

 

As I said to you, it is my firm opinion that the position of the Monarchy is so strong - I think the highest in our history - that it can ride the difficulty however it comes up; but this does not diminish the need for making the right decision.

 

I hope the foregoing may be of some help.

 

K

 

Lieutenant Colonel The Right Honourable Sir Michael Adeane, K.C.B., K.C.V.O.

 


 

PERSONAL AND CONFIDENTIAL

 

13th October 1955.

 

I received your letter of the 12th October and its enclosed drafts this morning, and I have had an opportunity of a preliminary study of them,

 

I am enclosing a minute to you telling you the Lord Chancellor's views on the proposal that any marriage should be before a Registrar in London. He has considered the matter very carefully, I need hardly say. If this question is of immediate importance, there may be some difficulty in resolving it at Ministerial level at once in view of the Lord Chancellor's absence in Malta next week.

 

May I mention one preliminary point - it runs through most of your admirable drafts. The language suggested seems to imply that the "serious difficulty" about giving consent under the Act of 1772 would be greatly diminished, or would disappear altogether, if succession is given up. The point arises most plainly in your draft A, where the word "therefore" in the third sentence is (if I am right) misleading. There are other reasons, besides the question of the succession, which affect the consent. The truth is that Parliament, representing the general body of subjects, must have the last word here and I should have thought that it might be wise to show some implied recognition of this fact in draft A.  If there is anything in this, some formula on the following lines might be considered instead of the third and fourth sentences of draft A :

 

"It is my wish that before contracting this marriage, my rights of succession to the Throne and the rights of those whose claim to the succession might otherwise derive through me, should be abrogated.  I understand that it would be necessary to pass legislation before my desires could be fulfilled and I most earnestly pray that such a course may commend itself to Your Majesty and to Parliament."

 

I have not sent a copy of this letter or the accompanying note to Adeane, For you may be in possession of information which would put an entirely different complexion on the foregoing points.

 

 

 

The Right Honourable

Sir Norman Brook, G.C.B.


 

BUCKINGHAM  PALACE

 

4th August 1955.

 

Confidential

 

Mydear Coldstream,

 

As you told me that the Lord Chancellor was leaving London today, I am writing to you to ask you in due course to thank him for his letter of today's date and for the advice contained in it.

 

I shall, of course, write to the Lord Chancellor himself in answer to his letter, but I do not propose to do so until he returns to the United Kingdom.

 

Yours sincerely,

 

            Michael Adeane

 

 

Sir George Coldstream, K.C.B.


 

14th November. 1955

 

PERSONAL AND TOP SECRET

 

My dear Coldstream,

 

In the course of an interview with Laithwaite on  Saturday, November 12th, Norman Robertson referred to the possibility of amendment of the Royal Marriages Act, 1772. I was present for that part of the conversation.

 

The High Commissioner said that it seemed probable from the Prime Minister's reply to Colonel Lipton's question on the 1st November and from the comments in the Press upon it that the question of some revision of the Act would be brought up, possibly at the Prime Ministers' meeting. We said that we had no information to show whether or not this would prove to be the case, but that evidently the possibility of consideration of revision at some future date was not excluded in the Prime Minister's reply. The High Commissioner went on to suggest that if so, the idea should be injected into our thinking that the Royal Marriages Act was not a matter affecting the succession to the Throne and therefore was not one on which it was necessary formally to bring in other Commonwealth Governments. Obviously if there were any question of amendment informal consultation with other Prime Ministers about the policy behind the amendment proposed would be desirable, but he thought that the Government in Canada would find it preferable if they were not asked to express a formal view. After all, the basis on which they worked in Canada was that their Sovereign was the Sovereign for the time being of the U.K. which had a special interest because of the Civil List, and the Sovereign's relation to the Church of England, and that they relied on the U.K., in informal consultation with them as necessary, to regulate delicate matters as to the succession. In reply to an explicit question Norman Robertson appeared to agree that his point was that the Royal Marriages Act was outside the convention embodied in the second preamble to the Statute of Westminster and that consultation with other Commonwealth Governments should not, therefore, be mentioned in the preamble to any Act amending the Royal Marriages Act.  In reply to the suggestion that the Royal Marriages Act was effective    in other countries and that some corresponding amendment might be desirable in respect of each of them in order that the legal position should not get out of line, Robertson thought that that was a somewhat technical point of little practical importance.  (Which indeed perhaps it is unless the validity of the marriage of any member of the Royal Family concerned is thought likely to be challenged in the Courts of another Commonwealth country).

 

We promised to convey to the appropriate legal authorities the substance of the High Commissioner remarks so that they might stand on record if and when this question comes under active consideration.  Hence this letter.  I need hardly add that while it is interesting to have this expression of the Canadian approach to such a question it does not at all follow that it would be shared by all other Commonwealth countries  (e.g. South Africa).  We should have to feel our way pretty carefully.

 

Before this part of the conversation ended the High Commissioner expressed the hope that, if there were any question of raising this matter at the Prime Ministers' meeting, advance notice would be given to other Prime Ministers.

 

I am sending copies of this letter to Brook and Rowlatt.

 

Yours ever,

 

            A. F. ?

 

 

Sir George Coldstream, K.C.B.


TOP SECRET

 

Lord Chancellor

 

Royal Marriages

 

Aide Memoire

 

1.  The projects for legislation canvassed in the Lord Chancellor's draft Memorandum for the Cabinet of the 29th October, 1955. were as follows-

 

(1)     A Bill dealing simply with Princess Margaret and her descendents.

 

(2)     To amend the Act of 1772 for the purpose of removing its worst features, viz:  the undue wideness and uncertainty of the persons to whom it applies, and limiting its application to a narrow circle of persons immediately concerned with the succession, i.e.

  1. The Sovereign's children
  2. The Sovereign's grandchildren (other than grandchildren by the marriage of a daughter to a foreigner)
  3. The Heir Presumptive.                                               

 

Under this plan the stringency of the sanctions of the Act of 1772 would be relatively defensible.  No unfamiliar conceptions would be introduced: it might be acceptable by the Dominions without undue argument: and would probably work without difficulty for a considerable period.

 

The legislation would also cover the exclusion from the  ordinary law of marriages in England and abroad by Royal persons beyond the narrow circle.

 

This was the proposal favoured by the Lord Chancellor.

 

(3)     The four Law Officers disliked the proposal at (2) above on the grounds

  1. That the circle proposed is too narrow - it would extend only  to Prince Charles and Princess Ann and not, e.g. to the children of the Duke of Gloucester or the Duke of Kent.
  2. They also disliked the sanction of invalidity. They preferred that the marriage should be valid but that there should be automatic exclusion from the Throne and forfeiture of any Civil List income.

 

Because the Law Officers realised that these proposals could require a good deal of working out they were in favour of a Bill limited strictly to the case of Princess Margaret, coupled with a public declaration that the question of an appropriate solution to the difficulties surrounding control of Royal Marriages would be vigorously sought in the near future in consultation with the Dominions.

 

2.  The following are the headings of advice which the Lord Chancellor gave to the Prime Minister:-

  1. Any alteration in the  succession to the Throne must be made by Act of of Parliament
  2. The Royal Marriages Act, 1772, does not, as a matter of law, automatically follow the succession.
  3. Marriages of members of the Royal Family are not in the same position as marriages of other persons. The statutory facilities for civil marriages are not available in England, but they are available in Scotland. In England such marriages are governed by the Common Law.
  4. The requirement in the preamble to the Statute of Westminster, 1931, that any alteration in the law "touching the succession to the Throne" requires the assent of the Parliaments of the Dominions, covers not only alterations to the succession, but also alterations to the Royal Marriages Act 1772, whether general or limited.  But the U.K. Parliament may pass legislation in advance of any necessary parallel Dominion legislation.

 

3. It is essential on practical grounds that the law as to the extent of the Royal consent to marriages of persons near to the succession of the throne should not operate differently here and in the Dominions.

 

GPC

 

10-II-56


 


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