Prince Ernest of Hanover v. Attorney General
(1955-1957)
Table of contents
This page contains the law reports on the
The case was noticed by :
[440]
PRINCE ERNEST OF HANOVER v. ATTORNEY-GENERAL.
[1954 H. 723.]
1955
Feb. 16, 17; Mar. 1.
Vaisey J.
Nationality—Naturalization—Royal family—statute
for naturalization of Princess Sophia and "all persons lineally
descending from her" — Whether limited to persons horn in the
lifetime of Queen Anne-Effect of preamble on interpretation of statute—Enacting
words clear, but ridiculous—Statute of 1705 (4 & 5 Anne,
c. 16)—British Nationality Act, 1948 (11 & 12
Geo. 6, c. 56), Sch. 4, Part II.
Statute—Construction—Preamble.
A great-great-grandson of
Ernest Augustus, Duke of Cumberland (a descendant of the Princess
Sophia), who succeeded to the throne of Hanover in 1837, commenced an
action against the Attorney-General to determine whether he was a
British subject, having regard to the provisions of the Statute of 1705
(4 & 5 Anne, c. 16).
The statute, after reciting in
the preamble that the Crown, on the death of Queen Anne without issue,
was limited to the Princess Sophia and her issue, continued " to the
end [that] the said " Princess . . . and the issue of her body, and all
persons lineally "descending from her, may be encouraged to become
acquainted " with the laws and constitutions of this realm, it is just
and "highly reasonable, that they, in Your Majesty's lifetime . ..
"should be naturalized" and proceeded to enact that "the said "
Princess . . . and the issue of her body, and all persons lineally [441] descending from her, born or
hereafter to be born, be and shall "be . . . deemed . . . natural born
subjects of this Kingdom," Roman Catholics excepted: —
Held that, as the
enacting words, though plain and unqualified, produced, when standing
alone, results so inconvenient that Parliament must have intended to
put some limit to their operation, the generality of their language
must be read as being limited by an implication from the words of the
preamble to descendants of the Princess born before the death of Queen
Anne; the intent being that her immediate successors should be
encouraged to become acquainted with the laws and constitutions of the
realm.
The plaintiff's claim,
accordingly, failed.
Ryall v. Rowles (1750)
1 Atk. 164 applied.
Powell v. Kempton Park
Racecourse Co. [1899] A.C.
143; 15 T.L.R. 266 considered.
Witness action.
By 4 & 5 Anne, c.
10 of 1705, which was intituled " An Act for the naturalization of the
Most Excellent Princess Sophia, Electress and Duchess Dowager of
Hanover, and the issue of her body," it was provided : " Whereas the
Imperial Crown . . . after the . . . death of Your Majesty, [Queen
Anne] . . . without issue of your body, is limited by Act of
Parliament, to the Most Excellent Princess Sophia . . . grand-daughter
of the late King James I, and the heirs of her body, being Protestants
. . . and to the end [that] the said Princess . . . and the issue of
her body, and all persons lineally descending from her, may be
encouraged to become acquainted with the Jaws and constitutions of this
realm, it is just and highly reasonable, that they, in Your Majesty's
lifetime . . . should be naturalized, and be deemed, taken, and
esteemed natural born subjects of England: ... be it enacted . . . that
the said Princess . . . and the issue of her body, and all persons
lineally descending from her, born or hereafter to be born, be and
shall be . . . deemed, taken, and esteemed natural born subjects of
this kingdom, as if the said Princess, and the issue of her body, and
all persons lineally descending from her, born or hereafter to be born,
had been born within this realm of England, any law, statute, matter,
or thing whatsoever to the contrary notwithstanding."
The statute further provided
for the exclusion of " every person and persons who shall be
naturalized by virtue of this Act of Parliament and shall become a
Papist or profess the Popish religion."
The statute of 1705 was repealed by the British Nationality Act,
1948, which came into operation on January 1, 1949. That [442] Act provided that every person
who was a British subject immediately before that date should become a
British citizen thereunder.
The plaintiff, Prince Ernest
of Hanover (who was the great-great-grandson of Ernest Augustus, Duke
of Cumberland, a son of George III, who, on the accession of Queen
Victoria in 1837, succeeded to the throne of Hanover, as by the law of
the Kingdom of Hanover succession was only in the male line) commenced
this action against the Attorney-General for a declaration
that, by virtue of the above statutes, he was a British subject.
Kenneth Diplock Q.C. and R. 0. Wilberforce Q.C. for
the plaintiff. The Act of 1705 (which was passed as a result of the Act
of Settlement of 1700, which was enacted to ensure Protestant
succession to the throne) gives the status of a British subject to the
descendants of the Electress Sophia born at any time, and is not
limited to those who were born in the lifetime of Queen Anne. The
nationality of the plaintiff was British at the time when the Act of
1705 was in force, and has not been affected by the repeal of the
statute by the Act of 1948.
As to the history of
nationalization, see the Act of 25 Edw. 3. stat. 1, and 7 Jac. 1, c. 2.
With regard to the meaning of " issue " in 1705, see Holland v.
Fisher [(1662) O.Bridg. 181, 214.] and Warman
v. Seaman [(1675) Pollexfen 112.]. Prima
facie the word " issue " in 1705 meant "descendants." but it was
capable of having a more restricted meaning if the context so required.
When the British Nationality
and Status of Aliens Act, 1914, was passed, many statutes, including 25
Edw. 3, stat. 1, were repealed, but the Act of 1705 remained in force
until repealed by the British Nationality Act, 1948. Until 1948 the Act
of 1705 covered all lineal descendants of the Electress, of whom at the
present time there are upwards of 400 persons.
The Act must be construed in
the light of the position in 1705, when the country was greatly in
favour of Protestant succession and in fear of the Old and Young
Pretenders. (See the long preamble to the Act of 12 & 13 Will. 3,
c. 2.) The death of the Duke of Gloucester (who was born in 1689) in
1700 caused the hopes of a Protestant succession to be imperilled. The
Act of 1705 was not merely concerned with the 70-year-old Electress,
but with anyone on whom the Crown might descend. It must be construed
in its historic context. No plainer words could have [443]
been used to show that it was
intended to apply to any person on whom the Crown of England could
descend. It is not necessary to look beyond the enacting words " and
all persons descended." The intention to cover all generations of
lineal descendants of the Electress could not have been expressed more
clearly. It was, however, intended to exclude Roman Catholics because
they were excluded from succession to the Crown. The words of the
statute are plain and unambiguous and cannot be affected by the
preamble: Powell v. Kempton Park Racecourse Co. [[1899] A.C. 143; 15
T.L.R. 266.]
The Act of 1705 having
remained in force until 1948, and the plaintiff being included in the
class of issue of the body of the Electress, he was on January 1, 1949,
when the British Nationality Act came into operation, a British subject
under that Act.
Sir Reginald Manningham-Buller Q.C., A.-G., and Bryan
Clauson for
the Attorney-General. The court is asked to find that the Act of 1705
made all the 400 odd descendants British subjects. That was not the
intention or the effect of the statute. There is nothing to indicate
that, at that time, Parliament meant to make remote descendants British
subjects.
The Act of Settlement uses the
expression " heirs of the " body," which is narrower than " issue of
the body " or " issue. " [Reference was made to Stroud's Judicial
Dictionary, vol. 2, for a definition of " heirs of the body."] The
intention of the Act was to provide for succession, but Parliament was
not concerned with persons who were not likely to be successors. The
preamble to the Act of 1705 affords useful guidance as to the intention
of that statute: Craies on Statute Law, 5th ed., p. 188. It was not the
intention of the preamble that the general words should have the effect
for which the plaintiff contends. The effect of the statute may be
stated as follows: " We want to nationalize " those persons who are now
alive and who become alive during "Her Majesty's lifetime." The phrase
"nationalization in the "lifetime of Her Majesty" means nationalization
of a person alive in the lifetime of Her Majesty. It cannot have been
the intention that all her descendants should be nationalized; that was
not necessary for the purposes of the Act. The words " in "Her
Majesty's lifetime " are the vital words—the Act does not nationalize
anyone born after the death of Queen Anne.
Diplock Q.C. in reply.
The repeal of the Act of 1705 cannot affect its construction as
applying to the plaintiff. The preamble does not cut down the clear
words of the enacting part of the [444]
statute. [Reference was made to Maxwell on Interpretation of
Statutes, 10th ed., p. 46, and to Mace v. Cadell [(1774)
1 Cowp. 232.]. The
plain language of the Act shows that the intention of Parliament was
that all descendants, other than Roman Catholics, were, until the Act
was repealed, to be British subjects.
Cur. adv. vult.
March 1.
Vaisey J.
The
plaintiff in this action is H.R.H. Prince Ernest Augustus of Hanover,
who contends, and asks the court to declare, that he is a British
subject under the combined effect of two Acts of Parliament. These are,
first, the Act 4 & 5 Anne, c. 16 (otherwise c. 4), passed
in the year 1705, and intituled " An Act for the naturalization of the
Most Excellent Princess Sophia, Electress and Duchess Dowager of
Hanover, and the issue of her body " (I will refer to it as the Act
of Anne); and, secondly, the British Nationality Act, 1948, which came
into force on January 1, 1949.
The defendant is Her Majesty's
Attorney-General who, while disclaiming any hostility in his attitude
to the plaintiff, puts him to proof of his contention, and has assisted
the court by advancing or suggesting arguments against it. The case is
one of considerable difficulty. There is, on the one hand, in the
plaintiff's favour, the apparently clear and unambiguous terms of the
enacting provisions of the Act of Anne. On the other hand, the
consequences of a literal interpretation and application of those terms
are such as to give rise to some serious misgivings as to whether it
would be proper so to treat them.
The plaintiff is a descendant
of the Electress Sophia, being the great-great-grandson of Ernest
Augustus, Duke of Cumberland, the fifth son of King George III. He was
born in or near Hanover on March 18, 1914. It is admitted that he is
and at all times was of the Protestant religion, and that he is not and
never has been a Papist, and has never professed the Popish religion.
These expressions are taken from the Act of Anne. There are at the
present time a large number of other persons descended from the
Electress Sophia and with similar religious associations; the number of
such persons is stated to be upwards of 400, and they include members
of the royal families of practically every European country. It would
therefore seem that my decision in the present case is likely to affect
many other persons [445] who would not be
technically
bound by it. I confess that the case seems to me to be of greater
historical interest than it can possibly be of importance either to the
plaintiff or to any other person.
It is, I think, convenient for
me here to state what I understand to be the plaintiff's actual status
according to English law, apart from any question as to his
nationality, and I take the following particulars mostly from Burke's
Peerage, 1953 ed., pp. xxxiii-xli, cvii, cli and clii. Under or by
virtue of the Titles Deprivation Act, 1917, and an Order in Council
dated March 28, 1919, the plaintiff's father (1887-1953) was deprived
of his right to succeed his (the plaintiff's) grandfather (1845-1923)
as Duke of Cumberland and Earl of Armagh; but the plaintiff's title of
"Prince of Great Britain and Ireland " was in no way affected by this
Act or the said Order in Council, nor was his right to be designated "
Royal Highness," and there is now vested in him the right under the
provisions of the said Act to petition for his restoration to the Poll
of the British Peerage.
It is surely significant that
neither in 1917 nor at any other time has any attempt been made to
deprive the members of the plaintiff's family of their status as
British subjects, if, in fact. they possessed or possess that status,
which is, of course, the question which I have now to consider. If they
were British subjects in 1917, the omission to deal with the situation
arising therefrom certainly suggests that they were not then regarded
as British subjects. I should add that the plaintiff's right of
succession to the Crown, remote though of course it is, is also wholly
unaffected by the Act, and it is indeed pointed out in Burke that,
apart from any other cogent arguments, it is a well-settled rule of law
that even an attainder, " albeit the blood be corrupted and
uninheritable," is automatically void and ended if the person attainted
inherits the Crown. It is also pointed out in the same work that under
the Act of 1917 and the Order in Council of 1919 the Cumberland
peerages have been placed in a position, theretofore unknown in peerage
law, of being neither extant, abeyant, dormant or extinct, but (and
here was the novelty) merely suspended. The plaintiff is, without
question, in the order of succession to the Crown under the Act of
Settlement, not only through his paternal ancestry in the line of the
Dukes of Cumberland of the creation of George III, but by reason of a
nearer, though still very remote, degree of relationship through his
mother, who was the daughter of the Kaiser Wilhelm II and, therefore, a
great-granddaughter of Queen [446] Victoria.
With his British
peerages, in existence though in suspense, his position and style as a
Prince of Great Britain and Ireland, and his place in the order of
succession to the Crown, all undisputed, it is difficult to see what
advantage he would gain from being declared to have been a British
subject under the Act of Anne, and so to be a British subject today.
Leaving for the moment the
preamble and proviso to it; the enacting provision of the Act of Anne
reads as follows: [His Lordship read it and continued: ] Now it is, of
course, plain that a statute is not impliedly repealed merely by
becoming obsolete or by mere non-user, however long the time may have
been since it was known to have been actually put into force. See per
Dr. Lushington in The India [(1864) 33 L.J.P.M.
& A. 193.
] But
this principle must, in my judgment, be applied with due regard to the
circumstances of the case, and although the word " obsolete " cannot in
strictness be applied to any Act of Parliament remaining on the Statute
Book, there are undoubtedly statutes still to be found there which
would seem only to have been permitted to remain there because their
existence has been overlooked. The textbooks give instances of this,
such as the Act 13 Car. 2. c. 5, which enacts that everyone commits a
misdemeanour who procures the signatures of more than 20 persons to a
petition to the King or to Parliament without the previous permission
of the justices or the grand jury, " which " (said Sir James Stephen's
Digest of Criminal Law (1877 ed.), p. xxxi) " obviously exists " only
because it is forgotten."
There is, I understand, no
record of the Act of Anne ever having been put into any practical
operation or referred to or relied on or regarded as relevant in any
way and, as was said by Lord Kenyon in Leigh v. Kent [(1789)
3 Term Rep. 362.]:
" where the words of an Act of Parliament are plain, it cannot be
repealed by the non-user, yet where there has been a series of
practice, without any exception, it goes a great way to explain them
where there is any ambiguity." Many examples of statutes effete or
forgotten, though remaining on the Statute Book, are to be found in the
textbooks; for instance, trial by battle was still in force in 1819,
and drawing and quartering was still part of the sentence for treason
until 1870. And, as usage is a good interpreter of law, so non-usage
lays an antiquated Act open to any construction weakening or even
nullifying its effect. Such considerations as these cannot be excluded
in connexion with the Act of Anne.
[447]
Turning for a moment to the
British Nationality Act, 1948, by which the Act of Anne was repealed,
section 12 provides that a person who was a British subject immediately
before the commencement of the Act (namely, January 1, 1949) should on
that day become a citizen of the United Kingdom and Colonies, subject
to certain exceptions which I need not specify, and there is no doubt
to my mind (and the Attorney-General admits) that if the plaintiff was
a British subject immediately before January 1, 1949, he did in fact on
that date become and now is a British subject under that Act. The
question, therefore, which falls to be decided is whether the plaintiff
was, or was not, a British subject under the Act of Anne immediately
before January 1, 1949. One must just consider, I think, what is
involved in the possession of that status. In the first place it
involves "allegiance." This, I think, is clear by implication from the
proviso of the Act of Anne which enacts that " every person and
persons, who shall be naturalized by virtue of this Act of Parliament,
and shall become a Papist, or profess the Popish religion, shall not
enjoy any benefit or advantage of a natural born subject of England;
but every such person shall be adjudged and taken as an alien, born out
of the allegiance of the Queen of England, to all intents and purposes
whatsoever; anything herein contained to the contrary notwithstanding."
Now " allegiance " is defined
in Termes de la Ley as " Such natural or legal obedience which every
subject owes to his prince"; and in Joyce v. Director of
Public Prosecutions [[1946] A.C. 347; 62 T.L.R. 208; [1946]
1 All E.R. 186] it
was held that an alien under the protection of a British passport owes
allegiance to the Crown. Again, Sir William Holds-worth, in the article
" Constitutional Law " in Halsbury's Laws of England, 2nd ed., vol. 6,
p. 530, writes: " It is said that the Crown enjoys the right of
recalling subjects from abroad by letters under the Great Seal . . .
disobedience thereto formerly rendering the person's property in the
realm liable to seizure . . . until the recall was complied with. This
prerogative, so far as it is not obsolete, applies, it seems, either in
time of war or in time of peace."
Now, when it is remembered
that members of every European royal family, with perhaps one
exception, are covered by the literal words of the Act of Anne, it is
difficult to see how such obligations as these could ever have been
intended to apply to so wide a class of persons. No doubt it may be
said that such [448] anomalies must occur in
every
case of dual nationality, but never, I should suppose, on such a large
scale and with such surprising consequences as in this case, if the
plaintiff's contention is well founded.
At the date of the passing of
the Act of Anne there were but seven persons besides the Electress
herself who were affected by its provisions. These were her son George,
afterwards King George I, born May 28, 1660; his two brothers, born in
1666 and 1674 respectively, and three grandchildren, namely, George
Augustus, afterwards King George II, born 1683, Sophia Dorothea, born
1685, his sister, and Frederick William, born 1688, son of a deceased
daughter of the Electress.
These being the persons
immediately covered by the provisions of the Act, what must have been
its intention? Not to secure the Protestant succession, which had
already been provided for by the Act of Settlement of 1700 (12 &
13
Will. 3, c. 2). It can only be supposed that it was thought advisable
and convenient that any of such then existing persons who might succeed
to the throne should do so in possession of the status of British
nationality. If such were in fact its purpose, it became at an early
date entirely superfluous, when the number of those in the succession
who were British subjects by birth had reached such numbers that the
succession of an alien-born descendant had become only a remote
possibility.
It now becomes necessary to
look at the preamble of the Act of Anne and to see whether it throws
any light on the matter and, secondly, to consider whether it is
legitimate to have recourse to it on a question of construction,
notwithstanding the general rule that a preamble cannot be used to
control an enactment expressed in clear and unambiguous terms: see Powell
v. Kempton Park Racecourse Co [[1899] A.C. 143].
Craies on Statute Law, .5th
ed., p. 189, does state that "If very general language is used in an
enactment, which it is clear must have been intended to have some
limitation put upon it, the preamble may be used to indicate to what
particular instances the enactment is intended to apply." And, among
other examples given at pp. 189-192 of that work, he cites Brett v.
Brett [(1826) 3 Add. 210, 219],
where
it was held that, inasmuch as it clearly appeared from the preamble,
the Act 25 Geo. 2, c. 6, only professed to deal with wills and codicils
devising real estate, the expression " any will or codicil " whenever
used in the [449]
enacting words of the statute did not include a will or codicil
bequeathing personalty.
Now the preamble in the
present case, after reciting the effect of the Act of Settlement, and
after some complimentary words to the Queen, proceeds: "To the end the
said Princess Sophia Electress and Duchess Dowager of Hanover and the
issue of her body and all persons lineally descending from her may be
encouraged to become acquainted with the laws and constitutions of this
realm it is just and [highly] reasonable that they in Her
Majesty's lifetime (whom God long preserve) should be naturalized and
be deemed taken and esteemed natural born subjects of England."
The words " in Her Majesty's
lifetime " seem to suggest some temporary purpose in the Act, but the
indication is certainly very vague. If these words had followed the
words "descending from her," there would have been an end of the
plaintiff's case. But, of course, no such transposition is admissible.
To the question put to the plaintiff, on the assumption that he
establishes his case, " Were you naturalized in the lifetime of Queen
Anne? " neither an affirmative nor a negative answer would be otherwise
than ambiguous. He would say that in a sense he was, and in a sense he
was not. And that leads me rather to the supposition that the main
object of the Act was to make sure that whichever of the foreign born
and alien-tongued persons who would be proclaimed, crowned and
enthroned as the Queen's immediate or next proximate successors, should
have already become subjects of England. No doubt the enacting portion
of the statute might operate according to its literal expressions to
the remotest point of time, but that it had any such far-reaching
purpose is very difficult to believe. To suppose that Parliament
thought that every descendant, however remote in time or distant in
kinship of the Electress, ought to study English law is really rather
absurd, however salutary the topic would have been to the immediate
successors of Queen Anne. Even in its primary purpose the Act of Anne
achieved a very poor measure of success, for it is notorious that King
George I never learnt to speak the English language, and is not, I
believe, thought to have possessed much knowledge of English law.
There have been plenty of
Statute Law Revision Acts since 1861, and the question may naturally be
asked why this Act, if it was, in fact, as I consider it was, entirely
spent, was not repealed like so many others contemporaneous with it. I
think the answer may be that such revising Acts usually contain [450] clauses preserving and
safeguarding vested rights, and reluctance may have been felt to the
repeal of an Act such as the Act of Anne, which appeared at first sight
on one possible construction of it to confer privileges on a large
number of persons, whose opinions would have been difficult to discover
and whose consent would have been difficult to obtain. It is well known
that the descendants of a particular stock may in a fairly brief period
of time become almost uncountable. For example, it is said that there
are at least one hundred thousand persons in England who can prove
descent from King Edward III (see Marquis de Ruvigny's Plantagenet
Roll, Mortimer-Percy Volume I. p. xi), and it may not be very long
before those who can prove descent from the Electress Sophia will be
equally or nearly as numerous. When that event happens, the operation
of the Act of Anne would be not merely inconvenient but absurd, and one
of the questions which I have tried to consider is whether it had not
already reached that point long before January 1, 1949. If over 400
persons, including members of nearly all the Royal Houses of Europe,
were already just before January 1, 1949, naturalized by the Act of
Anne, it seems to me that at least one provision of the laws of our
country had become little short of ridiculous. If, then, the very
general language of the Act of Anne was intended to have some
limitation put on it, the preamble may surely be used to indicate what
that limitation ought to be, and, slight though the indication is, it
seems to me that the reference to Queen Anne's lifetime makes the
preamble what preambles have been described as being, a " key to the
Statute," and indicates that what the legislature was doing was to make
sure that every possible successor to the throne within sight, as it
were, was ready, as a naturalized Englishman or Englishwoman, to take
the Queen's place on her death. I accept the words of Parker C.B. in Ryall
v. Rowles [(1750) 1 Atk. 164], where
he says that " If the non-restraining the generality of an enacting
clause will be attended with an inconvenience, the preamble shall
restrain it."
Now I think that if the
generality of the enacting clause in the Act of Anne is not restrained,
it would lead to a conclusion which would certainly be inconvenient and
also, I think, absurd, seeing that an appreciable part of the
inhabitants of Europe would be invested without their consent and for
the most part without their knowledge with British citizenship. The Act
was, [451] in my judgment, not repealed
before, because the extent of its application was doubtful and because
its repeal might have interfered with vested rights. If I am right in
thinking that its application was limited in point of time, i.e., that
it did not affect descendants of the Electress born after the death of
Queen Anne, there was neither any need to repeal it nor any harm in
leaving it on the Statute Book. It was there, in my view, as an
interesting historical document and nothing more.
I have come, with a good deal
of hesitation, to the conclusion that the enacting words, though
unqualified and plain in their meaning, when standing alone, are
nevertheless of such a character and produce inevitably such
consequences that the legislature must have intended to put some limit
on their operation. When once this conclusion is reached, the question
arises: what limit? And then one turns to the preamble and one finds
(though only, I agree, by implication) that the purpose of the
enactment was a purpose to be effected not indefinitely at some future
time or times, but in the lifetime of Queen Anno herself, and in
consequence I think that the plaintiff is not entitled to the relief
which he seeks. Let me say that I have every reason to believe that he,
the plaintiff, who was educated at Oxford, is a friend to this country,
proud of his long descent as a member of its ancient Royal house, and
anxious to assert and emphasize his association with it by
establishing, if he could, a right to the status of a British subject.
That is an ambition, however, which can, perhaps, be satisfied by other
means, which avoid implicating in its consequences a large number of
persons who neither want nor would value for themselves the status of
British nationality which he claims.
There are other examples of
possession of a particular status by persons who are unaware of it or
take no interest in it, or choose completely to ignore it. For example,
until quite recently, every King's or Queen's Counsel was a Governor of
Queen Anne's Bounty, though few of them were aware of the fact. There
are also examples of citizenship being conferred on a man and his
heirs, an expression which would probably not include all his
descendants. I should like here to acknowledge my indebtedness to the
courtesy of Professor Arthur Goodhart, who, from his stores of
knowledge, both of law and of history, has supplied me with a reference
to a letter written by George Washington to the Marquis de Lafayette on
December 23, 1784, informing him that he and his heirs male had been
made citizens of the State of Maryland, which carried with it the
status of national citizenship [452] when the
United States
Constitution came into force. See the Writings of George Washington,
United States Government Printing Office, vol. 28, p. 17, where there
is a note that the Marquis de Lafayette was also made a citizen of
Virginia. Professor Goodhart tells me that he also knows French
citizens who possess American nationality conferred on an ancestor and
his descendants.
I mention these matters in
order to show that the plaintiff's contentions are not without
precedent or support and, indeed, as I have said, the case seems to me
to be difficult; but the examples of dual nationality, which
undoubtedly do exist, give rise to so many anomalies and sources of
confusion that their number ought not to be extended further than is
necessary. It is, I think, very significant indeed that, while in the
wars 1914-18 and 1939-45 so many of the descendants of the Electress
were engaged in hostile operations against this country, nothing at all
was done to denationalize those persons and so to regularize their
position. If it is wrong to say that the Act of Anne or any other Act
has " become obsolete," the necessity for any such statement in the
present case does not seem to me to arise, for I construe the Act of
Anne in a way which results in saying that its purpose has been
fulfilled and its operation brought to an end, and that it is in fact,
and in point of law, entirely spent.
I will not dismiss the action
but, more conveniently, make a negative declaration that the plaintiff
was not, immediately before the coming into force of the British
Nationality Act, 1948, a British subject and that he is not now, either
by virtue of that Act or otherwise, a British subject, to any intent or
for any purpose. I am glad to know that the parties have relieved me
from having to say anything about the costs of this action.
Declaration accordingly.
Solicitors : Farrer & Co.; Treasury Solicitor.
J. L. D.
[188]
PRINCE ERNEST OF HANOVER v. ATTORNEY-GENERAL.
[1954 H. 723.]
C.A.
1955
Oct. 21, 24, 25; Nov. 16.
Evershed M.R. Birkett and Homer L.JJ.
Nationality—Naturalization—Royal family—Naturalization
of Princess Sophia and " all persons lineally descending from
her "—Whether limited to persons born in the lifetime of Queen
Anne—-Effect of preamble on interpretation of statute—Statute
of 1705 (4 & 5 Anne, c. 16) — British
Nationality Act, 1948 (11 & 12 Geo. 6, c.
56), Sch. 4, Fart II.
Statute—Construction—Preamble. Statute—Construction—Absurdity-Ex
post facto.
A great-great-grandson of
Ernest Augustus, Duke of Cumberland (a descendant of the Princess
Sophia), who succeeded to the throne of Hanover in 1837, started an
action against the Attorney-General for a declaration that he was a
British subject, having regard to the provisions of the Statute of 1705
(4 & 5 Anne, c. 16, otherwise known as 4 Anne, c. 4).
The Statute, after reciting in
the preamble that the Crown, on the death of Queen Anne without issue,
was limited to the Princess Sophia and her issue, continued "to the end
[that] the said "Princess . . . and the issue of her body, and all
persons lineally " descending from her, may be encouraged to become
acquainted " with the laws and constitutions of this realm, it is just
and " highly reasonable, that they, in Your Majesty's life time . . .
"should be naturalized" and proceeded to enact that "the said "
Princess . . . and the issue of her body, and all persons lineally "
descending from her, born or hereafter to be born, be and shall " be .
. . deemed . . . natural born subjects of this Kingdom," papists
excepted. Vaisey J. held that the enacting words must be read as
limited to descendants of the princess born in the lifetime of Queen
Anne: —
Held, (1) that as a
matter of construction of the Act of 4 Anne, c. 4, there was nothing in
the preamble to that Act and nothing therein, when interpreted in the
light of the earlier relevant statutes of 7 Jac. 1, c. 2, and 4 Anne,
c. 1, capable of controlling and limiting the plain and ordinary
meaning of the material words of the enacting provisions and that the
class of lineal descendants of the princess " born or hereafter to be
born " meant the class of such descendants in all degrees and without
any limit as to time.
The Sussex Peerage Case (1844) 11 Cl. & Fin. 85
and
Powell v. Kempton Park Racecourse Co. Ltd. [1899] A.C. 143; 15
T.L.R. 266 considered.
(2) That there was nothing in
the authorities which justified the restriction of plain and
unambiguous language in a statute years after its passing on account of
inconvenience or incongruity discovered ex post facto and, accordingly,
that the plaintiff's claim succeeded.
Yates v. The Queen (1885) 14 Q.B.D. 648; sub
nom. Regina
v. Yates, 1 T.L.R. 193 distinguished.
[189]
Decision of Vaisey J. [1955] Ch. 440; [1955] 1 All E.R. 746
reversed.
Appeal from Vaisey J. [[1955] Ch. 440; [1955] 1 All E.R.
746.]
The Statute 4 Anne, c. 4, of 1705 (in the Statutes of the
Realm 4 & 5 Anne, c. 16), which was entitled "An Act for
the naturalization of the most
Excellent Princess Sophia, Electress and Duchess Dowager of Hanover,
and the issue of her body," provided as follows:
" ' WHEREAS the
imperial Crown and dignity of the realms of England, France, and
Ireland, and the dominions thereto belonging, after the demise and
death of your Majesty, our most gracious Sovereign, without issue of
your body, is limited by Act of Parliament, to the most Excellent
Princess Sophia, Electress and Duchess Dowager of Hanover,
granddaughter of the late King James the First, and the heirs of her
body, being protestants: And whereas your Majesty, by your royal care
and concern for the happiness of these kingdoms, reigns in the hearts
and affections of all your people, to their great comfort and
satisfaction, and will be a glorious example to your royal successors
in future ages: And to the end the said Princess Sophia, Electress and
Duchess Dowager of Hanover, and the issue of her body, and all persons
lineally descending from her, may be encouraged to become acquainted
with the laws and constitutions of this realm, it is just and highly
reasonable, that they, in your Majesty's lifetime (whom God long
preserve) should be naturalized, and be deemed, taken, and esteemed
natural born subjects of England': We your Majesty's most dutiful and
loyal subjects, the lords
spiritual and temporal, and commons, in Parliament assembled, do most
humbly beseech your Majesty that it may be enacted; and therefore be it
enacted by the Queen's most Excellent Majesty, by and with the advice
and consent of the lords spiritual and temporal, and the commons, in
this present Parliament assembled, and by the authority of the same,
that the said Princess Sophia, Electress and Duchess Dowager of
Hanover, and the issue of her body, and all persons lineally descending
from her, born or hereafter to be born, be and shall be, to all intents
and purposes whatsoever, deemed, taken, and esteemed natural born
subjects of this kingdom, as if the said Princess, and the issue of her
body, and all persons lineally descending from her, born or hereafter
to be born, had been born within this realm of England; any [190] law, statute, matter, or thing whatsoever
to
the contrary notwithstanding.
" II. Provided always, and be
it further enacted and declared by the authority aforesaid, that every
person and persons, who shall be naturalized by
virtue of this Act of Parliament, and shall become a papist, or profess
the popish religion, shall not enjoy any benefit or advantage of a
natural born subject of England; but every such person shall be
adjudged and taken as an alien, born out of the allegiance of the Queen
of England, to all intents and purposes whatsoever; any thing herein
contained to the contrary notwithstanding."
The statute of 1705 was
repealed by the British Nationality Act, 1948, which came into
operation on January 1, 1949. That Act provided that every person who
was a British subject immediately before that date should become a
British citizen thereunder.
The plaintiff, Prince Ernest
of Hanover (who was the great-great-grandson of Ernest Augustus, Duke
of Cumberland, a son of George III, who, on the accession of Queen
Victoria in 1837, succeeded to the throne of Hanover, as by the law of
the Kingdom of Hanover succession was only in the male line), started
this action against the Attorney-General for a declaration that, by
virtue of the above statutes, he was a British subject.
Vaisey J. held that the plaintiff's claim failed.
The plaintiff appealed.
R. O. Wilberforce Q.C. (Kenneth Diplock Q.G. with him) and John
Knox for
the plaintiff, Prince Ernest of Hanover. If the Prince was a British
subject immediately before the British Nationality Act, 1948, came into
operation, he remained so thereafter by virtue of the transitional
provisions. The sole question is, therefore, whether the Prince was a
British subject by virtue of the Statute 4 Anne, c. 4.
By the Bill of Bights, 1688,
the succession to the Crown was given to William and Mary and their
issue, and, in default, to the Princess Anne, the younger sister of
Queen Mary and the younger daughter of James II, and to her issue. By
1700 Queen Mary was dead, William was still on the throne but all
Princess Anne's children had died, her son the Duke of Gloucester
having died in 1700. The Act of Settlement of that year (12 & 13
Will. 3, c. 2) provided for the Hanoverian succession. The next in
succession, in default of issue of Anne, was to be the Princess Sophia,
Electress of Hanover, and the heirs of her body. But both the [191] Electress and her son, later
George I, were then in Hanover and they did not come to the United
Kingdom. There were fears of a Jacobite revival. In 1705 two Acts were
passed, 4 Anne, c. 1 and c. 4 (in the Statutes of the Realm 4 & 5
Anne, c. 14 and 16), both designed to facilitate the succession on the
death of Queen Anne of the Hanoverian line, having regard to the fact
that the seven persons concerned at the time were all foreigners. The
Statute 4 Anne, c. 1, was passed to permit the naturalization Bill to
be introduced, notwithstanding that the conditions laid down in 7 Jac.
1, c. 2, might not have been complied with. By that Act no Bill for the
naturalization of a person over the age of 18 could be exhibited unless
the person concerned took the oaths of supremacy and allegiance and
took the sacrament within one month of the introduction of the Bill.
By the Statute 4 Anne, c. 4,
the lineal descendants of the Electress Sophia were to be deemed to be
natural born British subjects. Prima facie the Prince is within the
scope of that statute. He is lineally descended from the Princess
Sophia through George III, and he is not within the disqualification
laid down by section II. He was an alien enemy only whilst the state of
war with Germany continued, and though he served in the German army he
was conscripted into it. These considerations are not material,
however, in seeking to construe the Act, for it must be construed in
the light of the intention of Parliament when it was passed and not by
reference to events happening some 250 years afterwards. On any view of
the scope of the statute Frederick William of Prussia, who was alive
when the Act was passed, must have been within it and he too fought
against Britain.
It has been sought to restrain
the enacting words of the statute by referring to the preamble. But if
the operative words of an Act are clear and unambiguous, the sense
cannot be restrained by a preamble. Here the words are as clear and
precise as possible; they are all-embracing and universal words and are
not at all indefinite or ambiguous (as, indeed, Vaisey J. held [[1955]
Ch. 440, 451]).
Parliament seems to have taken particular care to extend the scope as
widely as possible. The words are not " heirs of her body " as in the
Act of Settlement, or " issue of her body " simpliciter as in the
Statute 4 Anne, c. 1 (words which might be said to be limited in
meaning), but " issue of her body . . . lineally descending from her,
born or hereafter to be born ..." [192]
Plainly the scope was not
restricted, as was the Statute of James I, to persons then over the age
of 18 and, therefore, although it might be argued that in the Statute 4
Anne, c. 1, which was directed to overcoming the obstacles presented by
the Act of James, " issue of her body " might be given a limited
meaning having regard to the plain intention of that Act, there was no
such reason for limiting the natural meaning of the words used in the
Statute 4 Anne, c. 4; nor would a limited meaning be consistent with
the words used in the statute. Those wards. are clearly wider than the
comparable words in the Act of Settlement and in the Statute 4 Anne, c.
1. They extend to issue of every degree, without limit, and were
clearly intended to include all members of the future royal family. The
interpretation which it is sought to put on the Act involves reading
words in, not merely placing a limitation on the words used. As the
words in question are manifestly clear in meaning there is no need to
look elsewhere to see whether they might possibly mean something else.
A preamble can be called in aid where the operative words are
indefinite or ambiguous (that is, fairly capable of more than one
meaning): see Craies on Statute Law (1952) 5th ed., p. 189. But, as
Lord Davey said in a dissenting judgment in Powell v. Kempton
Park Racecourse Co. Ltd. [[1899] A.C. 143, 185; 15 T.L.R.
266], one
must not create or imagine an ambiguity in order to bring in the aid of
a preamble. The preamble is added after the operative words.
[Sir Reginald Manningham-Buller Q.C., A.-G., intervening.
Not at the present time. The preamble to a private bill is certainly
not added afterwards, and it is not usual to have a preamble at all
with a public bill nowadays.]
Even if the preamble could be
called in aid here, it does not clearly restrict the scope of the
operative words. The preamble makes it clear that Parliament thought
that it was advisable to take action in Her Majesty's lifetime, so that
the descendants of the Princess Sophia, not only those born during Her
Majesty's lifetime, should not be laid open to the taunt of being
foreigners. If nothing else but " heirs of her body " had been used in
the later Act, the earlier Act, 4 Anne, c. 1, might have had a limiting
effect, but the Statute 4 Anne, c. 4, goes on to refer to lineal
descendants; there is nothing contradicting that in the preamble. It
does not introduce any limitation of the class of persons, or at any
rate not so clear a limitation as would justify a court in cutting down
the enacting words, even assuming that regard must [193]
be had to the preamble. It is
even more difficult to restrain the meaning of the operative part of an
Act by the title than by a preamble.
[Sir Reginald Manningham-Buller A.-G. The long title of a
bill
now confines the scope of a bill in the sense that amendments outside
the scope of the title are not considered. It is a fundamental
principle, as stated in Maxwell on the Interpretation of Statutes, 10th
ed., pp. 1, 2, with reference to the Sussex Peerage case, [((1844)
11 Cl. & Fin. 85] that the construction put on an
Act should carry into effect the
intention of Parliament.]
The intention of Parliament
is, of course, paramount, but the question is what means are legitimate
to adopt in arriving at it. Vaisey J. rightly said that regard had to
be had to the whole of the Act, but in actuality he went beyond that
and took account of extraneous circumstances, including what happened
years afterwards, which could not assist him in arriving at the
intention of Parliament at the material time. The court is no doubt
always impressed with an argument that a particular construction will
result in inconvenience or absurdity, but it must have regard to the
words used and to any necessary implication from them.
The cases on bankruptcy are not really of any great assistance here;
Brett v. Brett [5 (1826) 3 Add. 210. ] was
a plain case of
interpreting an Act as a whole; it was not really a " preamble " case.
In Ryall v. Rolle [6 (1749) 1 Atk.
165.] Lord Hardwicke L.C.,
[ 7 Ibid. 182] differing from Lord Cowper in Copeman
v. Gallant,
[(1716) 1 P.Wms. 314] said
that the enacting words could be restrained by the preamble. The point
was not, however, necessary to the decision in that case.
[Evershed M.E. In a footnote Atkinson says that Lord Hardwicke L.C. [1
Atk. 161, 165] was of the same opinion. In another case, Mace
v. Cadell, [(1774) 1 Cowp. 232] it
was held that the Act meant exactly what was said and that there was no
case for restraining the scope to the case mentioned in the preamble.]
Inconvenience does not mean
merely awkward, but something inconsistent with and contrary to the
policy of the Act, as gathered both from the preamble and the enacting
part of the Act. It is not disputed that in construing an Act one may
take into account the convenience or absurdity of rival
interpretations, but the fundamental question is what was the intention
of Parliament in 1705 in passing the Act: see the Sussex Peerage case,
[11 Cl. & Fin. 85]. One [194]
cannot argue backwards ex post
facto because of an inconvenience arising 250 years later and use that
as an argument in favour of a particular construction, unless it can be
said that the sort of thing which has happened could not have been
intended by Parliament at the time. If the situation which has arisen
is something which Parliament could not have thought of at all, then
that cannot enter into consideration. The question is, when looked at
through the eyes of the Parliament of 1705, is it unreasonable to
suppose that that Parliament did not intend that construction? It is
submitted that the construction contended for by the plaintiff is not
unreasonable because Parliament was legislating not merely for the
immediate successor to the throne but for the potential Royal family.
It was not legislating for a particular period of time. If it had been
suggested to Parliament that the Act so construed might lead to
difficulty in the future, it is submitted that Parliament might very
well have taken the view that the Act could always be repealed if
necessary, or another Act could be passed shutting the class, as was in
fact done in 1948. The alternative would have been to specify a limited
class which, bearing in mind the slow growth of the Royal family at
that time, might very well have seemed to Parliament as being likely to
fail, and then further legislation would have been needed. There is no
overriding reason compelling the court to say that the submitted
construction is so unreasonable that the court should depart from the
prima facie intention of the statute.
It is not disputed that this
statute may have been overlooked, but that has no bearing on the
interpretation. Mere obsolescence or disuse does not affect the
validity or construction of an Act. Nor is it possible to hold that an
Act has no further effect because it is inappropriate to the times. It
was not pleaded or proved that this Act had never had any practical
operation; it was merely established that it had not previously come
before the courts; Even in the case of the invocation of the trial by
battle at the Warwick assizes Parliament had to intervene: see Ashford
v. Thornton [(1818) 1 B. & Ald. 405.] and
59 Geo. 3, c. 46 (1819). There is not here any evidence of a
practice which would assist the court to place something other than the
prima facie interpretation on these words. [Reference was made to
British Nationality Act, 1948, ss. 14 (2) and 19, and to Mervyn Jones'
British Nationality, Law and Practice, p. 125.]
It is necessary to distinguish between the purpose of an Act and its
scope. The fact that this Act was never dealt, with in [195] any Statute Law Revision Act
is some indication that it has been regarded as still in force. It is
not for the court, in construing an Act, to say that it is an
inconvenient Act and accordingly no longer in force. The plaintiff's
contention is that the enacting words of the Act are clear beyond doubt
and that there is nothing in the preamble to restrain their meaning.
The plaintiff is accordingly a British subject by virtue of 4 Anne, c.
4, and this appeal should be allowed.
Sir Reginald Manningham-Buller Q.O., A.-G. and B. J. H.
Clauson for
the Attorney-General. Vaisey J. was right in the conclusion which he
reached, although he may have expressed views on matters which are not
relevant to the decision. The only question is as to the construction
of the Statute 4 Anne, c. 4. It is agreed that the statute cannot be
construed in the light of events occurring many years after it was
passed. However, so far as after events would have been reasonably
foreseeable when it was passed, they can be taken into account in its
construction. It is clear that the intention was to limit the statute's
operation to descendants of the Princess born in Queen Anne's lifetime.
It is necessary to have in mind the provisions of the earlier Acts, the
Bill of Rights and the Act of Settlement. The succession to the throne
had been settled before 1705. There was no doubt as to who would
succeed to the throne, but, as the law stood, he would not be a British
subject. That might cause difficulty. That difficulty was provided for
by this Act. There was then no object in legislating for descendants of
the princess born after the death of Queen Anne. The Act did not
relieve all her descendants from complying with the provisions of 7
Jac. 1, c. 2. Parliament should not be presumed to have passed an Act
wider in scope than was required to effect what was desired. It was
unnecessary to make the Act operate after the Queen's death. The
children of her successor would have been British subjects, since the
children of the sovereign are British subjects wherever born. The
reason why the words " all persons lineally descending "from her " were
added to the words " the issue of her body " was to exclude the
possibility that grandchildren or great grandchildren should be held
not to be " the issue of her body." The phrase " issue of her body "
means children only, and " persons "lineally descended from her " means
issue of all degrees. The vital words are " in your Majesty's
lifetime." The words cannot be transposed. The plaintiff, who was born
in 1914, cannot fulfil the requirements of the Act. The Act 4 Anne, c.
4, must be read in conjunction with 4 Anne, c. 1. The first Act shows
what [196] was intended to be the scope
of the second. If the preamble to the Act 4 Anne, c. 4, shows what was
Parliament's intention, the question is whether that intention should
be defeated by the enacting words.
The fundamental question is:
what did Parliament intend when it passed this Act? The principle
underlying the authorities is that the intention of Parliament is to be
determined from construing the whole Act, including the preamble. If
the preamble shows an intention to naturalize persons in the lifetime
of the Queen, and the enacting words are wider, there is a conflict
between the preamble and the enacting words. If absurdity or
inconvenience results from giving effect to the wider enacting words,
that is a good reason for cutting down the enacting words so as to give
effect to the intention as expressed in the preamble. This case
resembles Brett v. Brett [3 Add. 210].
The authorities show that
where one of two possible constructions of a statute results in
absurdity and inconvenience that construction should not be adopted.
Parliament cannot have intended to make all the descendants of the
Princess British subjects. That would have brought them within the
scope of the law of treason, with inconvenient results. The enacting
words are not so clear that one cannot turn to the preamble to
determine their meaning: Powell v. Kempton Park Racecourse
Co. Ltd. [[1899] A.C. 143.]; Caledonian Railway
Co. v. North British
Railway Co. [(1881) 6 App. Cas. 114]. It is not
contended that the preamble
controls the Act: Lumsden v. Inland Revenue Commissioners [[1914]
A.C. 877; 30 T.L.R. 673.]. When
the statute is looked at as a whole there is a conflict between the
preamble and section 1. The circumstances in which the Act was passed
require that the limited meaning in the preamble should be read into
the enacting provisions. The court must endeavour to ascertain what was
Parliament's intention when the Act was passed: Sussex Peerage Case
[11 Cl. & Fin. 85] ;
Yates v. The Queen [(1885) 14 Q.B.D. 648; 1 T.L.R.
193.]. [Reg. v. Clarence [(1888) 22
Q.B.D. 23, 65; 5 T.L.R. 61], and
Craies on Statute Law, 5th ed., pp. 67, 130, 186, were also referred
to.] In the eighteenth century more importance was attached to the
preamble to a statute than in the nineteenth century.
The only reported case in which 4 Anne, c. 4, was considered appears
to be Charles Duke of Brunswick v. King of Hanover [(1843)
6 Beav. 1.] [197] when the present
point was not
considered. The contention that a foreign sovereign cannot be a British
subject is not accepted.
Effect should be given to the
intention of Parliament, which cannot have been to confer British
nationality on the descendants of the Princess for all time. It is no
answer to say that Parliament could have rectified that inconvenience
by passing another Act.
B. J. H. Clauson, following, referred to Mervyn Jones on
British Nationality, Law and Practice, pp. 65, 66, 68.
R. O. Wilberforce Q.G. in
reply. It does not appear how the Attorney-General arrives at the
intention of Parliament in 1705, whether from a consideration of 4
Anne, c. 1, or from the general probabilities of the case or from an
examination of the preamble. The key to 4 Anne, c. 1, lies in 7 Jac. 1,
c. 2. That Act only applied to persons who were over 18 years of age.
In the case of persons below that age there was no obstacle to
naturalization : 4 Anne, c. 1, only deals with persons who were
disqualified by the provisions of 7 Jac. 1, c. 2; 4 Anne, c. 4, deals
with the issue of the body of the Princess. It is wider in scope than 4
Anne, c. 1. 4 Anne, c. 1, merely removed the obstacle of 7 Jac. 1, c.
2, to the passing of 4 Anne, c. 4.
When considering what was
probably Parliament's intention in 1705 there is no reason to limit its
intention to dealing with the immediate successors of Queen Anne. In
construing the preamble it is not sufficient to find there some
indication that the intention was to limit the scope of the Act to
persons born in the lifetime of the Queen. That intention must be clear
before the preamble can be used to cut down the words of the enacting
provisions. The preamble is ambiguous. Where Parliament intended to
limit the operation of a statute to limit a class of heirs, it did so
in express terms: see the Precedent Act of 1711. None of the
authorities cited by the Attorney-General derogate from the Kempton
Park case [[1899] A.C. 143]. The cases which he cited can be
divided
into two classes. First, Yates v. The Queen [14
Q.B.D. 648];
The Queen v. Clarence [22 Q.B.D. 23]
and Lumsden v.
Inland Revenue Commissioners [[1914] A.C. 877],
in
which the effect of the preamble to the statute in question was not
considered. While we do not object to the doctrine that the
inconvenience resulting from one construction of a statute is a factor
to be considered, it is submitted that that doctrine must be applied
with caution. Secondly, there is [198]
Caledonian Railway Co. v. North
British Railway Co. [6 App.Cas. 114], where the
preamble of the statute was considered. It was there held
that the enacting words were capable of alternative meanings. The
plaintiff relies on the Kempton Park case [[1899]
A.C. 143] and
submits that the preamble cannot be used to cut down the enacting
provisions of 4 Anne, c. 4, and that this appeal, accordingly, should
be allowed.
Cur. adv. vult.
Nov. 16. The following judgments were read.
Evershed
M.R.
The Statute 4
Anne, c. 4, which this appeal requires us to construe, is short and
should be set out in extenso. [His Lordship read the statute, and
continued:] That Act was (among others) repealed by the British
Nationality Act, 1948; but the repeal was subject to the provision that
every person who was a British subject immediately before the repealing
Act came into operation should become a British citizen thereunder.
The plaintiff claims that he
is by virtue of the Statute of Anne and the Act of 1948 a British
citizen. It is not in doubt that he is in fact a lineal descendant of
the Electress Sophia. It is also admitted on the part of the
Attorney-General that, if he is otherwise entitled to succeed, he is
not disqualified by the terms of the proviso to the Statute of Anne. He
was born in the year 1914 and the question in the action is whether,
upon its true interpretation, the Act of 1705 is such as to apply to a
person coming into existence more than 200 years after the date of its
passing.
By the standards of the great
majority of the Acts of Parliament which now fall to be considered by
the courts, the Act 4 Anne, c. 4, is old and, by the same standards,
its form and language are archaic. There are now, as we were informed,
some 400 living persons who claim lineal descent from the Electress
Sophia of Hanover named in the Act. In the two and a half centuries
which separate the year 1955 from the year 1705 the structure of that
which we call western civilization has suffered many profound changes.
The nations of 1955, the populations which they embrace and the
obligations which they demand from their inhabitants, were no doubt in
many respects undreamt of in the philosophy of 1705. Moreover, the
nation, with which the domains of the Electors of Hanover were
absorbed,
[199]
has twice in the present
century been at war with the United Kingdom, so that the plaintiff,
like his father before him, has found himself arrayed in arms against
the sovereign to whom he ~ has since his birth (if his claim is well
founded) owed the allegiance of a British subject.
The Attorney-General has,
however, not relied upon any defence to the plaintiff's claim based on
the facts to which I have last referred, or upon the circumstance that,
at the date of the coming into operation of the Act of 1948, he was, as
an enemy, disabled from having any access to the Queen's courts for the
purpose of asserting that he was then a British subject. The
Attorney-General also expressly disclaimed before us any argument to
the effect that the Statute of Anne ought now, having regard to its
antiquity and archaic form, to be so construed as to " whittle down "
or minimize the effect which would otherwise flow from its terms.
The question, then, for our
decision is one of the meaning which, according to the relevant rules
for the interpretation of statutes, should now be given (and which
would have been given in the year 1705) to the language which I have
already recited. To the problem so simply posed the answer would prima
facie appear undoubtedly to be in favour of the plaintiff; for the
enacting language of the Statute—" all persons lineally descending from
(the Princess Sophia) born or hereafter to be born " ex facie covers
clearly the case of a person admittedly so descended and not otherwise
disqualified.
But it is the contention of
the Attorney-General that the question as I have posed (and answered)
it is an over-simplification of the problem; that the true scope and
intention of Parliament, discerned from a consideration of certain
earlier Statutes in pari materia with the Statute 4 Anne, c. 4, and
also (more especially) of the preamble of the Statute of Anne itself,
require that the apparently wide signification of the general language
used in the enactment should be substantially restricted; and that the
right construction of the material words, which I have just quoted from
the Act, is such as to limit the class of descendants, conformably with
the Parliamentary intention expressed in the preamble, to those
descendants born in the lifetime of Queen Anne. The Attorney-General
has additionally argued that general words in an enactment will be
restricted in order to avoid what would otherwise be an absurd or
highly inconvenient result: and the result which would, in the present
case, make the Statute of Anne comprehend an ever-increasing [200] class of persons, from one
generation to another, in course of time almost impossible of
identification, would (it is contended) be not only highly inconvenient
and absurd, but would exceed any object which the Act could sensibly
have been designed to achieve.
We were referred to numerous
authorities illustrative of the principle to be applied in construing
statutes. It has, I think, to be conceded that the numerous judicial
pronouncements in the books upon the significance of a preamble in
interpreting the enacting provisions of a statute disclose at least
some variation in emphasis.
I take by way of example two citations from the decision in the
House of Lords in Powell v. Kempton Park Racecourse Co.
Ltd. [[1899] A.C. 143; 15 T.L.R. 266], where
the question (decided affirmatively by a majority of the House) was
whether the apparently general words of the Betting Act, 1853, should
be limited, in light particularly of the Parliamentary intention as
expressed in the preamble, so as to exclude the Act from applying to
betting with bookmakers upon the Kempton Park racecourse. Lord James of
Hereford, who was of the majority, said [[1899] A.C. 113,
193] that he fully
accepted the dictum of Lord Tenterden in Halton v. Cove,
[(1830) 1 B. & Ald. 538, 558] which
included the following sentence: " Yet on a sound construction of every
Act of Parliament, I take it the words in the enacting part must be
confined to that which is the plain object and general intention of the
legislature in passing the Act, and that the preamble affords a good
clue to discover what that object was."
It will be noticed that the
language of Lord Tenterden does not (at any rate in terms) appear to
require the presence of any ambiguity in the enacting part of the
Statute before its ordinary meaning can in such a case be limited. On
the other hand, Lord Davey, who dissented from the majority opinion,
seems plainly to indicate that words in the enacting part which are
themselves clear cannot be restricted so as to accord with the apparent
promise of the preamble. He said [[1899] A.C. 143, 185]:
" ' Undoubtedly '—I quote
from Chitty L.J.'s judgment words with which I cordially agree—' it is
a settled rule that the preamble cannot be made use of to control the
enactments themselves where they are expressed in clear and unambiguous
terms.' But the preamble is a key to the statute, and affords a clue to
the scope of the statute when the words construed by themselves without
the aid of the preamble are [201] fairly
capable of more than
one meaning. There is, however, another rule or warning which cannot be
too often repeated, that you must not create or imagine an ambiguity in
order to bring in the aid of the preamble or recital."
I do not think it necessary to
attempt, for my own part, any fresh formulation of the rule proper to
be applied. I will assume (as I think Mr. Wilberforce was
himself content to assume) that if the scope and purpose of an Act is
made plain by reference to other relevant statutes and other admissible
matters of context, or by reference to its preamble, or both, then
words prima facie of general import in the enacting provisions may be
cut down so as to make the Act in its effect correspond with its
purpose.
As is stated in the first sentence of Maxwell on the Interpretation
of Statutes, 10th ed., pp. 1, 2, with a reference to the Sussex
Peerage Case, [(1844) 11 Cl.
& Fin. 85, 143] "...
the fundamental rule of inter-pretation, to which all others are
subordinate, is that a statute is to be expounded ' according to the
intent of them that made it.'" The difficulty in cases of this kind is
that although a preamble may, in Lord Tenterden's words, provide a
"good clue " to what is to follow, Parliament must at least be assumed
also to intend what it expressly enacts.
I turn, first, to the other
relevant statutes to which we were referred and which provide the
context or background for the Statute 4 Anne, c. 4. The accession to
the throne of the Prince and Princess of Orange as King William III and
Queen Mary II was followed by the passing in 1688 (1 Will. & Mar.
sess. 2, c. 2) of " An Act declaring the rights and liberties of the
subject and settling the succession of the Crown," later known by its
short title of "The Bill of Eights." By this Act, after reciting that "
the late King James II by the assistance of divers evil counsellors,
judges did endeavour to subvert and and the
laws and liberties of and ministers employed by him, extirpate the
protestant religion
this kingdom," it was provided that the " Crown and Regal
Government " should be and continue to " Their said Majesties, [King
William and Queen Mary,] and the survivor of
them during their lives and the life of the survivor . . . and that
after their deceases the said Crown and premises shall be and remain to
the heirs of the body of Her Majesty (Queen Mary), and for default of
such issue to Her Royal Highness the Princess Anne of Denmark and the
heirs of her body, and for default of such issue to the heirs of the
body of his said Majesty." The first section also contained [202] a provision excluding
altogether from the succession every person who should be reconciled to
or hold communion with the See or Church of Rome or should profess the
popish religion or marry a papist.
The death of Queen Mary
without issue, and the death, also, of Prince William, Duke of
Gloucester, the only surviving issue of Princess Anne of Denmark,
called for further provision for the settlement of the Crown after the
death of the survivor of King William and Princess Anne. There was
accordingly passed in the year 1700 (12 & 13 Will. 3, c. 2) " An
Act for the further limitation of the Crown and better securing the
rights and liberties of the subject," now commonly known as '' The Act
of Settlement." Section 1 of this Act provided that the Princess
Sophia, Electress and Duchess Dowager of Hanover, and the heirs of her
body being Protestants should succeed to the Crown after the King and
Princess Anne and in default of issue of either of them.
At the date of the passing of
this Act there were living three sons of the Electress Sophia and also
three grandchildren. All of them were, however, living, and had always
lived, out of England.
It will be seen, as the
Attorney-General observed, that sufficient provision had been made for
the settlement of the Crown after the deaths of King William and
Princess Anne. But, assuming, as no doubt seemed virtually certain,
that the Princess Anne would not leave issue, the person to succeed,
according to the Hanoverian succession of the Crown, would be or would
be likely to be a stranger to these shores and subject, therefore, to
the taunt of being a foreigner.
In the course of opening the
appeal, Mr. Wilberforce stated that, at the time of the passing of the
Act which we have to construe, lively fears were entertained of an
attempted restoration on the part of the Jacobite party. The
Attorney-General was not prepared so to concede: but however that may
be, it is, to my mind, plain enough that the object of the Act 4 Anne,
c. 4, was to, provide in advance against the alien taunt and also, no
doubt, as the preamble to the Act states in terms, to encourage the
family of the Electress Sophia to a better acquaintance with our "laws
and constitutions."
In this situation Parliament
proceeded accordingly to make provision for the naturalization as
English subjects of those persons among whom would be found the
successor to the throne upon the death, without issue, of Princess
Anne. [203]
But there was upon the Statute
Book an Act of King James I (7 Jac. 1, c. 2), which prevented the
exhibition of a bill for the naturalization of any person of the age of
18 years or over, unless that person had previously complied with
certain conditions as to taking the sacrament and also taking the oaths
of supremacy and allegiance. It was obvious that some modification of
the Act of James was necessary. No doubt the required modification
might have taken the form of a partial repeal of that Act in the
proposed Act of naturalization itself. In fact, Parliament proceeded by
two steps of which the first, being the prelude to the Act of 4 Anne,
c. 4, was an Act, chapter 1 in the same session, entitled " An Act for
exhibiting a Bill in this present Parliament for naturalizing the most
Excellent Princess Sophia, Electress and Duchess Dowager of Hanover and
the issue of her body." As this Act is also short, and was much relied
upon by the Attorney-General, it should also be set out at length:
" WHEREAS the most Excellent
Princess Sophia, Electress and Duchess Dowager of Hanover, and the
issue of her body, are to be naturalized, and by reason of their being
beyond the seas, they cannot qualify themselves in order thereto,
according to the Act made in the seventh year of the reign of King
James the First, which requires every person to receive the Sacrament
of the Lord's Supper, within one month before any Bill for
naturalization be exhibited, and also take the oaths of supremacy and
allegiance in the Parliament House, before his or her Bill be twice
read: be it enacted . . . that a bill for the naturalization of the
said most excellent Princess Sophia, Electress and Duchess Dowager of
Hanover, and the issue of her body, shall and may be exhibited and
brought into this present Parliament, and twice read; any law, statute,
matter, or thing whatsoever to the contrary notwithstanding."
The Attorney-General has
fastened upon the words in the preamble: "... and by reason of their
being beyond the seas, "they" (that is, the Electress and the heirs of
her body) "cannot qualify, etc." The presence of these words, he
argues, is the clue to the scope and intention of the Act, and shows
that the general words, " the heirs of her body," in the title of the
Act and in its enacting part, must be restricted to those "heirs" then
living; and thence he proceeds to the conclusion that the general words
in the later Act, chapter 4, which constituted the fulfilment of the
promise in chapter 1, must likewise be restricted; for otherwise, the
later Act would extend to an [204] area
greater than the ground prepared for it and would, to the
extent of the excess, be at variance with the Statute of James I
To this argument, however, the
terms of the last-mentioned Act themselves provide, in my judgment, a
formidable objection. The conditions thereby imposed on naturalization
applied in fact (as reference to the Act shows) only to persons of the
age of 18 years or over. It was not and could not be suggested as a
matter of construction that the effect of the Statute 4 Anne, c. 1, was
therefore limited to the heirs of the body of the Electress who were
then 18 years old or more. If such had been the intention, it is
inconceivable that the reference to the age of 18 years in the Statute
of James would have been omitted in its recital in the Statute of Anne.
[Though the matter of fact was not precisely gone into, one of her
grandchildren was then under the age of 18.] If this is right, it
appears clearly to follow that the preamble in this case is not a clue
for a limited interpretation of the enactment. In other words, if the
class of persons whose later naturalization was forecast is not, on any
view, to be limited to those specifically affected by the Statute of
James, then there seems no compelling reason against giving to the
words " the heirs of her body " their natural effect; treating the
preamble as no more than a reference to the justification of the
Statute—for the reason that some of the class of persons intended to be
naturalized were or might be affected by the conditions of the earlier
Statute.
There is, to my mind, a
further and by no means negligible objection to the Attorney-General's
argument. If his view of the limited scope of the Statute 4 Anne, c. 1,
be accepted, still, on his own argument, the scope of the second
Statute, chapter 4, extends further; for it covers not only the issue
of the Electress living at the time but all further issue thereafter to
be born in the lifetime of Queen Anne, a period that might have
extended for 30 or 40 years. To that not unsubstantial extent,
therefore, the Statute would present an apparent inconsistency with the
Statute of James. I add, also, upon this objection (though I am
somewhat anticipating my view of the question of absurdity) that the
argument for limiting the category of persons to be naturalized loses,
to my mind, much of its attractiveness to common sense when the class
ceases to be limited to the known and certain number of the living, and
becomes one liable to increase during an uncertain and perhaps
prolonged period of time.
[205]
I have therefore come to the
conclusion that reference to the historical context of the relevant Act
and to the earlier statutes does not discover or require a restriction
of its scope—nor, indeed, provide any clue to the intention of
Parliament as expressed in the Act itself. Nor do I think that these
earlier statutes can materially influence the important question to
which I must now come, of the effect upon the enacting provisions of
the Act of the terms of the preamble, and particularly of the words
therein, " in your Majesty's life time. "
It was the plaintiff's case
that these words meant no more than " now "; and merely served to
indicate that, in the view of Parliament in 1705, provision should then
be made (i.e., in Queen Anne's lifetime) for the naturalization of the
Electress and her descendants.
On the other side it was said
that, had such been the purpose of the words, they would have appeared
earlier in the recital— which would have read "It is just and
reasonable in Your "Majesty's life time that they," etc. By their
position, in fact, the words must (as the Attorney-General argues) be
related grammatically to the words " should be naturalized "; and that
since no person could be naturalized in the lifetime of the Queen
unless he or she was then in existence, the import of the words was
inevitably to restrict the purpose of the Act, as stated by its
preamble, to the naturalization of those members of the class of the
lineal descendants of the Electress who should come into being before
Queen Anne's death.
For myself, I should feel no
hesitation in preferring, as a matter of grammar, the construction
suggested by the Attorney-General, if the matter rested as I have
stated it; but it does not so rest. The preamble, after the words " be
naturalized," continues " and be deemed, taken, and esteemed
natural-born subjects of England." If grammatically the words "in your
Majesty's life time" are properly related to the words "be
naturalized," they should no less, in my judgment, be related to the
words which immediately follow, " and be deemed," etc. It is here that,
to my mind, the difficulty arises. For whatever else may be said of the
scope and meaning of the Act, it is quite certain that its intention
cannot have been to limit the effect of the " naturalization " of the
persons designated to the period of Queen Anne's life—a result which
would quite plainly have defeated its whole object. Notwithstanding,
therefore, its grammatical inelegance (as I think), it seems to me [206] impossible to assert that Mr.
Wilberforce's construction is not a possibly legitimate interpretation
of the effect of the vital words.
I have felt myself accordingly
compelled, in spite of my strong first impression of the natural sense
and import of the vital words "in your Majesty's life time," to agree
with Vaisey J. that the preamble points, at best with an uncertain
finger, to the scope and intent of the Act. I further agree with him
that the essential words in the enacting part, descriptive of the class
of persons affected, are upon their face clear and unambiguous.
Though the class is in the
title of the Act referred to (as it had been described in the earlier
Statute of the same session) as " the issue of her body " (a general
formula capable, at any rate, of being limited to issue in one degree
only), the description was expanded in the last sentence of the
preamble to " the issue of her body and all persons lineally descending
from her " (a formula clearly not capable of such limitation). In the
enacting provision the description is (not once only but twice) carried
a further stage in emphasis by the addition of the significant words "
born or hereafter to be born." The necessary extension of the class to
issue of every degree, without limit, is further reinforced in my
judgment (if such reinforcement be necessary) by the reference to "
future ages " in the preamble itself.
Agreeing, therefore, with the
judge upon both essential premises, I am compelled by the rules for the
interpretation of statutes to which I have earlier referred, to a
different conclusion from that at which he arrived. For, as Mr.
Wilberforce contended, the present is, upon these premises, the
converse of the case in which words of merely general import can be
controlled by a preamble clearly pointing to a specifically restricted
Parliamentary intention. For reasons which I have given, the words of
the preamble necessarily and exclusively relied upon by the
Attorney-General admit, at least, of doubt. On the other hand, the
vital language of the enacting provision is not only, upon the face of
it, unambiguous but, as I think, cannot be fairly described as that of
a merely general formula. On the contrary, it appears to me to be as
precise and emphatic as any form of words could be which was apt to
describe a class of persons not presently ascertainable.
I conclude, therefore, that,
as a matter of construction of the Act 4 Anne, c. 4, there is nothing
in the preamble—and, as I have already said, nothing in the preamble
interpreted in the light of the earlier relevant statutes—capable of
controlling and limiting the plain and ordinary meaning of the material
words [207] in the enacting provision. In
other words, the class of lineal descendants of the Electress " born or
hereafter to be born," designated in the enacting provision, means the
class of such descendants in all degrees and without any limit as to
time. I add that such an interpretation, together with a similarly
unlimited interpretation of the earlier Act 4 Anne, c. 1, not only
avoids any conflict in scope between the two Acts but also disposes of
any resultant inconsistency between their effect and the continuing
provisions of the Statute of James I.
I am disposed to think that,
if the matter had rested solely upon the construction of the Act 4
Anne, c. 4, Vaisey J. would have been of the same opinion. But I think
that the judge's mind was, in some degree, influenced by consideration
of the antiquity of the statute and by the fact that for a
great number of years the rights, which it purported (on this view) to
confer, do not appear ever to have been asserted. " As usage," said the
judge, "is a good interpreter of law, so non-usage lays an antiquated
Act open to any construction weakening or even nullifying its effect." [[1955]
Ch. 440, 446]
What I might call the " dead
letter " argument is undoubtedly attractive; but I have already
observed that the Attorney-General expressly disclaimed, before us, any
reliance upon it. Vaisey J. was also, as I think, considerably
impressed by the second of the arguments presented by the
Attorney-General, to which I must now turn, namely, that founded upon
inconvenience and absurdity.
"I think," said the judge,
[Ibid. 450] "that if the generality of the ' enacting
clause ... is not restrained,
it would lead to a conclusion which would certainly be inconvenient and
also, I think, absurd, seeing that an appreciable part of the
inhabitants of Europe would be invested without their consent and for
the most part without their knowledge with British citizenship."
Though I venture to think, if
I may say so. that the description of the class of persons now
constituting the lineal descendants of the Electress Sophia as " an
appreciable part of the inhabitants "of Europe" may be something of an
overstatement, it is undoubtedly true that a strict ascertainment of
all the persons who could now claim the privilege which the Act
purported to confer would be an inconvenient matter—particularly having
regard to the disqualification imposed by the proviso. Equally it
appears, at the least, to be incongruous that persons who are nationals
of a country that has twice been engaged in the bitterest [208] conflict with this country in
the present century should claim to be, and to have been since birth,
citizens of the United Kingdom. But this inconvenience and this
incongruity seem to me rather to arise from the effect of the passage
of a long period of time upon an Act that was allowed to remain
unrepealed than from the effect of the Act itself when it came into
operation.
As Mr. Wilberforce observed,
it was always open to Parliament to prevent or restrict the
inconvenience and the absurdity by the repeal of the Act—as in fact
it did in the year 1948. I think, in other words, that the force of the
argument ab inconvenienti becomes, upon analysis, but an oblique
restatement of the " dead letter " argument which the Attorney-General
has disclaimed.
The examples which Vaisey J.
derived from Professor Good-hart indicate at least that the notion of
conferring citizenship upon a particular individual and his descendants
in all degrees is not so absurd as to have found no parallel in other
countries. And if, as the Attorney-General's argument must concede, the
conferment of citizenship upon a class of descendants liable to
increase during a substantial period of time is not open to challenge
on the grounds of inconvenience or absurdity, it seems to me illogical
to contend that an indefinite prolongation of the period necessarily
renders such a provision ineffective on those grounds. True it is, no
doubt, that the object to be achieved could with reasonable certainty
have been assured without an indefinite prolongation of the period. But
it appeared during the argument that, without indulging in extravagant
hypotheses, the succession might have devolved upon an alien, if the
terms of the Statute were limited so as to comprehend only descendants
of the Electress born in the Queen's lifetime.
In support of this part of his case, the Attorney-General cited to
us three decisions: Reg. v. Bateman,8 [(1857)
27 L.J.M.C. 95] Yates v. The
Queen [(1885) 14 Q.B.D. 618; .1 T.L.R. 193] and
Reg. v. Clarence [(1888) 22 Q.B.D. 23; 5 T.L.R.
61]. In my judgment
the present case falls far short of the principle which those cases
illustrate.
Of the three cases, neither the first nor the third is, in my
judgment, authoritative upon the present question. Yates v. The
Queen, [14 Q.B.D. 648] however,
which was a decision of this court, is much more in point. The question
there decided was that the general term, prima facie unequivocal, "
criminal prosecutions," was not to be construed in the Newspaper Libel
and Registration Act, [209] 1881, as
including
prosecutions by way of criminal information. By the terms of the Act,
the institution of a criminal prosecu-tion " of the character
comprehended by the Act required the fiat of the Director
of Public Prosecutions. If therefore, criminal informations were
covered by the Act, it would follow that the Director of Public
Prosecutions would be brought into competition with, if he was not
enabled to override, the Attorney-General and even the Queen's Bench
Division itself. Such a result would, in the words of Brett
M.E., involve " an indecent absurdity," for the avoidance of which the
court felt able so to restrict the meaning of " criminal prosecutions "
as to exclude criminal informations.
It is to be observed that the absurdity in Yates v. The
Queen [14 Q.B.D. 648] became
manifest immediately upon the coming into operation of the Act. The
general words " criminal prosecutions," if effective according to their
ordinary meaning, gave rise necessarily and at once to the conflict.
Cotton L.J. used this language in the course of his judgment12
[12 Ibid. 660]:
"If one sees that by applying the language to something which is not
within the
mischief contemplated by the Act, it will produce manifest absurdity or
inconvenience, then according to the rule of construction which is well
known, and for which it is unnecessary to refer to any authority, it is
the duty of the court so to construe the general term as not to apply
it to that which will have such a result."
The Lord Justice was clearly
not contemplating some inconvenience or absurdity which a prophet might
forecast as capable of arising in 200 years' time. I read this language
as meaning clearly that the inconvenience or absurdity is one which
must necessarily and immediately arise from the fact of the Act
extending to some subject-matter apparently within the broad scope of
the generic terms used, though not within the mischief contemplated by
Parliament.
It is in this essential respect that, in my judgment, the present
case differs from Yates' case [14 Q.B.D. 648];
for, if the general words in the Statute of Anne be given the wide
significance which prima facie they bear, no absurdity or inconvenience
thereby became manifest upon the Act coming into operation. No anomaly,
no conflict of interest or authority, no difficulty of application
arose or could arise upon the Act taking effect. The inconvenience or
absurdity (if there be such) arose only from the impact of a long [210] course of events upon a statute
permitted to remain upon the Statute
Book for more than two centuries.
In my judgment, nothing in any
of the cited cases justifies the restriction of plain and unambiguous
language in a statute, years after its passing, on account of
inconvenience or incongruity discovered ex post facto. It is, in truth,
to my mind no more than the " dead letter " argument once again in
another guise. In my judgment, accordingly, the argument of the
Attorney-General upon this head cannot be sustained; nor does it get
any greater vigour by being added to the arguments with which I have
already dealt based on the earlier legislation or on the preamble to
the Statute.
I have come, accordingly, to
the conclusion that the plaintiff was entitled to the declaration which
he sought, and that his appeal ought to be allowed.
Birkett L.J.
I have come to
the same conclusion. I think that the plaintiff was entitled to the
declaration which he sought before Vaisey J. and that by reason of the
Statute of Anne of 1705, chapter 4, which has already been read in full
by the Master of the Bolls, and by the provisions of the British
Nationality Act, 1948, the plaintiff's claim to be a British subject
succeeds, and this appeal must accordingly be allowed.
It might be thought that the
question to be answered in this appeal could be stated quite simply,
although it is notoriously difficult sometimes to answer a simple
question. When all is said and done, the question is: Do the provisions
of chapter 4 of the Statute of Anne of 1705 apply to the plaintiff? But
immediately further questions of some complexity arise, which have
already been the subject of acute controversy and of judicial
pronouncement.
What are the provisions
of the Statute? How are the words of the Statute to be interpreted?
Undoubtedly intended to naturalize somebody, were they ever intended by
the Parliament of 1705 to naturalize a person in the position of the
plaintiff in this action? Can the plaintiff, born some two hundred
years after the passing of the Act, claim to be a British subject by
reason of its provisions in the year 1955, two and a half centuries
after its appearance on the Statute Book? Were the words of the Statute
intended to naturalize only those descendants of the Electress Sophia
living in the lifetime of Queen Anne? Does not any other conclusion
lead to absurd results, which Parliament could never have intended or
even contemplated? Must not [211] the
enacting words of the
Statute be modified by other statutes affecting the position of the
Electress Sophia and her descendants, and do not certain words in the
preamble to the Statute limit the application of the enacting
words?
These are some of the questions raised in this appeal from the
judgment of Vaisey J. The judge was clearly troubled by the antiquity
of the Act of 1705 and by the attempt to apply its provisions to the
plaintiff in the year 1955.
Two passages from his judgment
may perhaps be cited on this point, for they show the way in which the
judge approached the problem before him. The first passage reads [[1955]
Ch. 440, 446]:
" Now it is, of course, plain that a
statute is not impliedly repealed merely by becoming obsolete, or by
mere non-user, however long the time may have been since it was known
to have been actually put into force. See per Dr. Lushington
in The India (No. 2). [(1864) 33 L.J.P. 193] But
this principle must, in my judgment, be applied with due regard to the
circumstances of the case, and although the word ' obsolete ' cannot in
strictness be applied to any Act of Parliament remaining on the Statute
Book, there are undoubtedly statutes still to be found there which
would seem only to have been permitted to remain there because their
existence has been overlooked." The second passage reads [[1955]
Ch. 440, 446]:
"Many examples of statutes effete or forgotten, though remaining on the
Statute Book, are to be found in the textbooks; for instance, trial by
battle was still in force in 1819, and drawing and quartering was still
part of the sentence of treason until 1870. And, as usage is a good
interpreter of law, so non-usage lays an antiquated Act open to any
construction weakening or even nullifying its effect. Such
considerations as these cannot be excluded in connexion with the Act of
Anne."
The claim of the plaintiff, if
valid, rested on the legal effect to be given to the words of a
statute, passed some two and a half centuries ago, when Parliament was
concerned to naturalize those persons who might succeed to the throne
on the death of the Princess Anne without issue, a state of affairs
which then seemed virtually certain, the position of the King as a
widower, who would not remarry, appearing to be taken for granted. When
the Act of 1705 was passed there were seven persons then living who
were affected by its provisions: the Electress Sophia herself; her son
George, afterwards George I, who was then 45 years old; his two
brothers, one aged 39 and the other 31; and [212]
three grandchildren, one
George Augustus, afterwards George II, then 22 years of age; Sophia
Dorothea, aged 20; and Frederick William, aged 17.
The Act of 1705 was not
repealed until the passing of the British Nationality Act of 1948, and
then it was provided that all those who were British subjects
immediately before the passing of the Act of 1948 should continue to be
so. In my opinion, the historical setting of the Act of 1705 is
extremely important when considering what effect must be given to the
actual words of the Statute. It has been described in the judgment of
the Master of the Bolls and need not be repeated in detail. But in the
12 years that had passed since the Bill of Rights in 1688 had sought to
settle the succession of the Crown, the situation had again become
precarious, because of the death of Queen Mary without issue, and the
death of the only son of Princess Anne of Denmark. In 1700, therefore,
in the Act of Settlement, Parliament further provided for the
succession by enacting that the Electress Sophia and the heirs of her
body, being protestants, should succeed after the death of William and
Princess Anne without issue.
But now that the succession
had been provided for in that particular way, it became necessary to
cater for the situation that would arise if a foreigner were to succeed
to the throne. The Statutes 4 Anne chapter 1 and chapter 4, therefore,
concerned the question of naturalization. The Statute of James I, which
laid down certain conditions which had to be complied with before a
Bill could be presented to Parliament, was dealt with by chapter 1 of
the Statute, and chapter 4 is the Statute with which this appeal is
immediately concerned.
The argument of the
Attorney-General based on chapter 1 of the Statute of 1705 does not
seem to have been considered by Vaisey J. at all. That argument was
that the words in the preamble to the Act—" Whereas the most excellent
Princess
Sophia, Electress and Duchess
Dowager of Hanover, and the issue of her body, are to be naturalized,
and by reason of their being beyond the seas, they cannot qualify
themselves in order thereto, according to the Act ... of James I,"
etc.—must be read as meaning that only those persons who were then
living were intended to be naturalized, and the plaintiff is therefore
excluded, because chapter 4 must be similarly confined to persons then
living.
The Master of the Rolls has
pointed out that the conditions laid down in the Statute of James I
only applied to persons of the age of 18 and upwards, and could have no
application, for [213] example, to Frederick
William, who was
the son of a deceased
daughter of the Electress Sophia and was born in 1688, and in 1705,
therefore, was only 17 years of age.
It seems to me plain that chapter 1 of the Act of 1705 lends no
support to the view that the persons it was intended to naturalize were
to be confined to persons then living, as the Attorney-General
contended; and chapter 1 of the Statute of 1705 was intended merely to
overcome the manifest difficulties created
by the Statute of James I, which affected some, but not all, of the
persons intended to be naturalized by the later enactment, chapter 4.
The Attorney-General placed
great reliance on the wording of the preamble to chapter 4 of the Act
of 1705: " And to the end the said Princess Sophia, Electress and
Duchess Dowager of Hanover, and the issue of her body, and all persons
lineally descending from her, may be encouraged to become acquainted
with the laws and constitutions of this realm, it is just and highly
reasonable, that they, in your Majesty's lifetime (whom God long
preserve) should be naturalized, and be deemed, taken, and esteemed
natural born subjects of England." He said that these words,
particularly the words " in your Majesty's "lifetime," had the effect
of restricting the meaning of the words in the enacting words of the
Statute to persons living in the lifetime of Queen Anne.
I cannot agree with this view.
The enacting words of the Statute are, in my opinion, perfectly plain
and unambiguous. They do not need to be modified or explained by the
preamble, for, in my view, the preamble is merely saying that what it
is intended should be done, as set out in the enacting words, should be
done in Her Majesty's lifetime.
Vaisey J. came to the conclusion
[[1955] Ch. 440, 451] that the enacting words though
unqualified and plain in their meaning,
when standing alone, are nevertheless of such a character and produce
inevitably such consequences that the legislature must have intended to
put some limit on their operation." " When once this conclusion is
reached," he continued, " the question arises: what limit? And then one
turns to the preamble and one finds (though only, I agree, by
implication) that the purpose of the enactment was a purpose to be
effected not indefinitely at some future time or times, but in the
lifetime of Queen Anne herself, and in consequence I think the
plaintiff is not entitled to the relief which he seeks." [214]
It is agreed that the cardinal
rule for the construction of Acts of Parliament is that they should be
construed according to the intention of the Parliament that passed
them. The language of the enacting words is clear and the judge found
it to be so by his use of the words " unqualified and plain in their
meaning." In these circumstances I should have thought that, according
to the rules for the construction of statutes, the preamble ought to be
disregarded. But it was the consequence of giving the words their plain
meaning which made the judge turn to the preamble, because he said that
the legislature must have intended to put some limit on their operation.
With great respect, I cannot
think that this was applying the recognized rules of construction, for,
if the meaning of the words is plain, the consequences are to be
disregarded. In the Sussex Peerage case, [11 Cl. &
Fin. 85, 143] Tindal
C.J., giving the considered advice of the judges to the House of Lords,
said: "My Lords, the only rule for the construction of Acts
of Parliament is, that they should be construed according to the intent
of the Parliament which . passed the Act. If the words of the statute
are in themselves precise and unambiguous, then no more can be
necessary than to expound those words in their natural and ordinary
sense. The words themselves alone do, in such case, best declare the
intention of the lawgiver. But if any doubt arises from the terms
employed by the legislature, it has always been held a safe means of
collecting the intention, to call in aid the ground and cause of making
the statute, and to have recourse to the preamble, which, according to
Dyer C.J., ... is ' A key to open the minds of the makers of the Act,
and the mischiefs which they intended to redress.' "
Vaisey J. said that the words
of the Statute were such that the legislature must have intended to put
some limit on their operation.
In Salomon v. A. Salomon & Co. Ltd. [[1897]
A.C. 22, 38] Lord
Watson said: " ' Intention of the legislature
' is a common but very slippery phrase, which, properly understood, may
signify anything from intention embodied in positive enactment to
speculative opinion as to what the legislature probably would have
meant, although there has been an omission to enact it. In a court of
law or equity, what the legislature intended to be done or not to be
done can only be legitimately ascertained from that which it has chosen
to enact, either in express words or by reasonable and necessary
implication."
[215]
The consequences of applying
the plain meaning of the words may produce results in 1955 that are
strange and may possibly be inconvenient. In his book entitled For
Lawyers and Others, published in 1936, the late Theobald Mathew
concluded his chapter on "Royalty and the Law" by quoting
the
very section of the Act of 1705 with which this appeal is concerned,
and asking the question " How many people are aware that the German
ex-Emperor is a British subject?" He does not appear to have been
troubled by any doubts as to the interpretation or effect of the Act,
but was concerned to exhibit one of its curious consequences.
It would be a little strange
if, after the passage of two and a half centuries, some curious
situations did not arise when applying a statute of such age to a state
of affairs in 1955; but in my opinion nothing has arisen to cast doubt
upon the intention of Parliament in 1705. It has never been disputed
that the plaintiff is a lineal descendant of the Electress Sophia, and
that he is in no way disqualified by reason of section 2 of the Act;
and in my opinion he plainly comes within the enacting words
of
the Statute, and at the passing of the British Nationality Act of 1948
he was a British subject and is, therefore, entitled to the declaration
for which he asked in the court below and for which he asks here. I
would allow the appeal.
Romer L.J.
It appears to me
that it is of fundamental importance to bear in mind that the proper
construction to place upon the Act of 1705 is precisely the same now as
that which would have been attributed to it by a court of construction
immediately after it passed into law. The function of the court is to
ascertain the intention of Parliament from the language in which that
intention was expressed. Due regard must, of course, be had to all
relevant circumstances which existed at the time when the Act was
passed; but it is no more permissible, in my judgment, in construing a
statute than it is in construing a deed, a will or any other written
instrument, to arrive at a conclusion as to the meaning of the language
used in the light of events which happened afterwards. Foreseeability
of probable results may be attributed to the author of any document
having regard to circumstances which existed when it was executed, and
which were known, or presumably known, to him at the time; but the fact
that those results did subsequently occur cannot be accepted as
relevant to the interpretation of the language used.
[216]
I have ventured to emphasize
this point, for, if the construction of the Act for which the plaintiff
contends is the right one, it would follow that the German Kaiser
Wilhelm II was a British subject and that there are some 400 persons
scattered about Europe now who are entitled to British
nationality by virtue of this Statute; and it is a little tempting,
perhaps, to assume that a construction which leads to such results
cannot be the right one. As I have already intimated, however, if the
language of the Act requires a certain construction to be placed upon
it, that construction can in no way be affected by consequences such as
those to which I have referred. The question whether such consequences
could reasonably have been foreseen by the legislature in 1705 and the
bearing which such question should have upon the construction of the
Act are matters relevant to the. alleged absurdity of the enacting
clause, if read literally, which I consider hereafter.
I will not reread the Statute,
which has already been stated in full in the judgment which the Master
of the Bolls has delivered. It is enough to say that the enacting part
of the Act brings within its scope, as clearly and plainly as any
language could convey, all protestants, either then already born or who
might be born at any time thereafter, who could show that they were
lineally descended from the Princess Sophia.
Why, then, should effect not
be given to this clear expression of parliamentary intention? The
answer which the Attorney-General has given to the question may be
summarized in brief as follows: The enacting part of the Statute, if
taken by itself, would not only go beyond the purpose which Parliament
presumably had in mind, but would lead to an absurdity which the
legislature cannot have intended; that this not only justifies but
compels the court to seek the true intention from material other than
the enacting clause itself; that such material is afforded by the
preamble, which shows with clarity what Parliament really intended to
do; and that, accordingly, the enacting clause should be controlled by
the preamble and made to conform to the intention which is therein
disclosed.
It appears to me that the
Attorney-General's case, as thus formulated, is open to more than one
serious objection. The first objection (and it is a formidable one)
which stands in his way is to be found in the general proposition that,
if the enacting words of the Statute are clear and unambiguous, they
cannot be restricted by the preamble. This proposition is supported by
high authority and was expounded with precision in some of the [217] speeches which were deliverd in Powell
v. Kempton Park
Racecourse Co. Ltd. [[1899] A.G. 143]
"Two propositions," said Lord
Halsbury L.C., [Ibid. 157] " are quite clear—one that a
preamble may
afford useful
light as to what a statute
intends to reach, and another that, if an enactment is itself clear and
unambiguous, no preamble can qualify or cut down the enactment." Lord
Davey said [Ibid. 185]: 'Undoubtedly'—I quote from
Chitty L.J.'s
judgment words with which I cordially agree—' it is a settled rule that
the preamble cannot be made use of to control the enactments themselves
where they are expressed in clear and unambiguous terms.'"
The Attorney-General suggested
that the views so expressed are inconsistent with opinions which had
earlier been pronounced in the House in Caledonian Railway Co. v.
North British Railway Co. [(1881) 6 App.Cas. 114]
In
my judgment, this criticism is not well founded, for it appears to me
that the views which were expressed in that case do no more than
support the proposition, which appears in Craies on Statute Law, 5th
ed., p. 189, namely, that, if the language of an enactment is not
clear, resort may be had to the preamble.
It must, however, be conceded
that it is not altogether easy to reconcile the principle as enunciated
by Lord Halsbury L.C. and Lord Davey in Powell's case [[1899]
A.G. 143] with other judicial observations of great authority
and weight (cf.,
e.g., Lord James of Hereford's speech [Ibid. 189] in
the same case);
nor does it appear to be in accord with such decisions as that of Sir
John Nicholl in Brett v. Brett.26 [(1826)
3 Addams 210]
In these circumstances,
although I believe the general principle to be as I have already stated
it, I hesitate to say that it is so rigid and of such universal
application as to destroy the argument of the Attorney-General, which I
have summarized, in limine; and I proceed, therefore, to consider the
other reasons why, in my opinion, the argument cannot be accepted.
First, as to the purpose which
Parliament had in mind, current surrounding circumstances may, as I
have already said, legitimately be taken into account; but, subject
thereto, the purpose can only be ascertained from the language of the
Act itself. The only extraneous circumstance, which was suggested as
having any direct bearing on the matter, was the preliminary Statute 4
Anne, c. 1. The Master of the Rolls has already [218]
considered this Act in his
judgment, which I have had the advantage of reading. I respectfully
agree with what he has said ~ with regard to it, and I only desire to
say for myself that as, on any view, the legislature departed in the
second Act from the very limited scope which was envisaged by the
recital in the first, the only question, as it seems to me, is as to
the extent of such departure. I therefore find no assistance, in
construing the second Act, from the language of the first.
As regards the suggested
absurdity of the enactment clause if taken by itself, it appears to me
to be a dangerous doctrine that the courts, when confronted by plain
and unambiguous legislative language, should reject it as absurd. It is
true that its power so to do is supported by authority. (See Yates v.
The Queen [14 Q.B.D. 648]; see also per Sir
Thomas Parker
L.C.B. and Lord Hardwicke L.C. in Ryall v. Rolle, [(1719)
1 Atk. 165, 174, 182] and per Lord Coleridge C.J. in Reg.
v. Clarence. [(1888) 22 Q.B.D. 23, 65])
I
cannot but think, however, that if such power in fact be vested in the
courts, it should only be exercised in cases that imperatively demand
its application; for, apart from the fact that its exercise comes
perilously close to legislating, that which seems absurd to one mind
may not appear so to another—-as was pointed out by Lord Greene M.R. in
Grundt v. Great Boulder Proprietary Gold Mines Ltd. [[1948]
Ch. 145, 159; [1945] 1 All E.R. 21]
In any event, however, I see
nothing necessarily or inherently absurd in the conception that
Parliament was intending to provide in 1705 that all those upon whom
the British Crown might subsequently devolve by virtue of the Act of
Settlement should become British citizens at birth; and Parliament was
presumably alive to the fact that, if the class of persons affected by
the Act should become eventually too large, it could be closed by
subsequent legislation. It appears to me that a far greater degree of
absurdity than that which has been suggested in this case is required
to justify the court in departing from clear enacting language,
assuming that absurdity does, in itself, afford ground for any such
departure.
The next consideration which
arises is as to the real meaning of the relevant recital in the
preamble, and whether it demonstrates beyond any reasonable doubt an
intention which is inconsistent with the enacting clause; for the
Attorney-General rightly conceded that the preamble cannot be resorted
to for the purpose of controlling the enactment itself unless a
definite and [219] unambiguous expression of
intention can
be collected from its terms.
In my opinion, such cannot be
said of the recital upon which reliance is placed. It seems to me that
the words " in your Majesty's life time," may have been introduced
into the preamble for either of two quite different purposes. The
object of their introduction may have been to ensure that only those
descendants of the Princess Sophia, who were already born or should
subsequently be born in the lifetime of Queen Anne, should come into
the operation of the Act. On the other hand, the purpose of the words
may have been intended merely to point to the occasion of the Act. I
cannot but think, for myself, that if the first of these two purposes
was the real one, the draftsman of the Act would have taken the obvious
course of inserting after " and all persons lineally descending from
her " the words "and born in your Majesty's lifetime." Had this been
done, the recital would, as Vaisey J. pointed out, have demonstrated an
unmistakable intention to confine the naturalization of Princess
Sophia's issue within the limits for which the Attorney-General is now
contending; and the fact that this very apparent method of conveying
this intention was not adopted raises a considerable doubt in my mind,
to put it at its lowest, whether any such intention was present at all.
The matter, however, by no
means rests there. If one thing is clear beyond question it is that,
whatever the class might be who were to be affected by the Act, the
naturalization which was to be thereby conferred was not to be
conterminous only with Queen Anne's lifetime, but was to continue
operative after her death; and yet, on the recital as it stands, if the
words " in "your Majesty's life time" limit the period for conferment
of naturalization, so also they limit its duration. In order,
therefore, to impute to the recital the effect for which the respondent
contends, it would in any case be necessary to introduce such words as
" for ever after " between " and " and " be deemed." I am by no means
prepared either to supply, or to transpose, words in the recital merely
in order to derive an intention which can then be said to be clearly
inconsistent with the enacting part of the Act.
Upon the language of the
recital itself there is much to be said, in my opinion, for the view
that it was introduced for the second of the purposes to which I have
earlier referred; and therefore the fact that there may also be much to
be said in favour of the first of these purposes can be of no
sufficient avail [220] to the
respondent upon this point; for ambiguity in the recital is
fatal to him.
For the reasons which I have
stated, I am unable to attribute to this Act the construction and
effect which commended itself to the judge, and I agree with my
brethren that the appeal should be allowed.
Appeal allowed.
Leave to appeal to the House of Lords,
Solicitors: Farrer & Co.; Treasury Solicitor.
B. A. B.
[436]
HOUSE OF LORDS
[1957]
H. L. (E.)
Present: Viscount Simonds, Lord Normand, Lord Morton of
Henryton, Lord Tucker and Lord Somervell of Harrow.
1956
Oct. 22, 23, 24, 25, 29, 30;
Dec. 5.
ATTORNEY-GENERAL.....Appellant;
AND
PRINCE ERNEST AUGUSTUS OF HANOVER Respondent.
Nationality—Naturalization—Royal family—Statutory
naturalization of Princess Sophia and " all Persons lineally
descending from Her " —Whether limited to persons bom in Queen
Anne's lifetime— Effect of preamble on interpretation of statute—Princess
Sophia Naturalization Act, 1705 (4 Anne, c. 4).
Statute—Construction—Preamble. Statute—Construction—Absurdity.
Statute—Construction—Subsequent enactments—Whether
relevant in interpreting earlier one.
A great great grandson of
Ernest, Duke of Cumberland (a descendant of the Princess Sophia,
Electress of Hanover), who succeeded to the throne of Hanover in 1837,
sought a declaration that he was a British subject by virtue of the
statute of 1705, 4 Anne, c. 4 (other wise known as 4 & 5 Anne, c.
16).
The statute, after reciting in
the preamble that the Crown, on the death of Queen Anne without issue,
was limited to the Princess Sophia and her issue, continued: "... to
the end [that] the said
Princess . . . and the issue
of her body, and all persons lineally descending from her, may be
encouraged to become acquainted with the laws and constitutions of this
realm, it is just and highly reasonable, that they, in Your Majesty's
Life Time . . . should be naturalized" and proceeded to enact that "the
said Princess . . . and the issue of her body, and all persons lineally
descending from her, born or hereafter to be born, be and shall be . .
. deemed . . . natural born subjects of this Kingdom ": —
Held that, as a matter
of construction of the Act, there was nothing in the Act or its
preamble, interpreted in the light of the earlier relevant statutes 7
Jac. 1, c. 2, and 4 Anne, c. 1 (otherwise known as 4 & 5 Anne, c.
14), capable of controlling and limiting the plain and ordinary meaning
of the material words of the enacting provisions and that the class of
lineal descendants '' born or " hereafter to be born " meant the class
of such descendants in all degrees without any limit as to time.
Looking at the Act from the point of view of 1705 there was no such
manifest absurdity in this construction as would entitle the court to
reject it.
Per Viscount Simonds.
Assistance may be obtained from the preamble to a statute in
ascertaining the meaning of the relevant enacting part, since words
derive their colour and content from their context. But the preamble is
not to affect the meaning otherwise ascribable to the enacting part
unless there be a compelling reason [437]
and it is not a compelling reason that the enacting words go
further
than the preamble indicated.
Powell v. Kempton Park Racecourse Co. Ltd. [1899]
A.C. 143; 15 T.L.R. 266 considered.
Decision of the Court of .Appeal [1956] Ch. 188; sub nom. H.R.H.
Prince Ernest Augustus of Hanover v. Attorney-General [1955J
3 All E.R. 647 affirmed.
Appeal from the Court of Appeal (Evershed M.E., Birkett and
Romer L.J J.).
This was an appeal from an
order dated November 16, 1955, of the Court of Appeal, whereby the
court discharged a judgment dated March 1, 1955, of Vaisey J. and
declared that the respondent, H.R.H. Prince Ernest Augustus of Hanover,
was, immediately before the coming into force of the British
Nationality Act, 1948, a British subject and that he was, by virtue of
that Act, a British subject.
The question at issue in this
appeal was whether or not the respondent was by virtue of a statute of
Queen Anne's reign of 1705 a British subject immediately before the
coming into force of the Act of 1948. The Act of 1948 repealed the
statute of Queen Anne's reign (which was referred to in Part II of
Schedule IV to the Act of 1948 as " the Act of 4 & 5 Anne,
c. 16," but was called "4 Anne, c. 4" in the Statutes at Large), but it
was conceded by the appellant, the Attorney-General, that, if at the
date of the commencement of the Act of 1948 the respondent was a
British subject, he remained such by virtue of section 12 (4) of the
Act of 1948.
The statute of 1705 was as follows:
'' An Act for the Naturalization of the Most
Excellent Princess Sophia, Electress and Duchess Dowager of Hanover,
and the Issue
of Her Body.
" WHEREAS the Imperial Crown
and Dignity of the Realms of England, Prance, and Ireland, and the
Dominions thereto belonging, after the Demise and Death of Your
Majesty, Our Most Gracious Sovereign, without Issue of Your Body, is
limited by Act of Parliament, to the Most Excellent Princess Sophia,
Electress and Duchess Dowager of Hanover, Granddaughter of the late
King James the First, and the Heirs of Her Body, being Protestants: And
whereas Your Majesty, by Your Royal Care and Concern for the Happiness
of these Kingdoms, reigns in the Hearts and Affections of all Your
People, to their great Comfort and Satisfaction, and will be a glorious
Example of Your Royal Successors in future Ages: And to the End the
said
[438] Princess Sophia, Electress and
Duchess Dowager of Hanover, and the Issue of Her Body, and all Persons
lineally descending from Her, may be encouraged to become acquainted
with the Laws and Constitutions of this Realm, it is just and highly
reasonable, that they, in Your Majesty's Life Time (whom God long
preserve) should be naturalized, and be deemed, taken and esteemed
natural born Subjects of England: We Your Majesty's most dutiful and
loyal Subjects, the Lords Spiritual and Temporal, and Commons, in
Parliament assembled, do most humbly beseech Your Majesty that it may
be enacted; and therefore be it enacted by the Queen's Most Excellent
Majesty, by and with the Advice and Consent of the Lords Spiritual and
Temporal, and the Commons, in this present Parliament assembled, and by
the Authority of the same, That the said Princess Sophia, Electress and
Duchess Dowager of Hanover, and the Issue of Her Body, and all Persons
lineally descending from Her, born or hereafter to be born, be and
shall be, to all Intents and Purposes whatsoever, deemed, taken and
esteemed natural-born Subjects of this Kingdom, as if the said
Princess, and the Issue of Her Body, and all Persons lineally
descending from Her, born or hereafter to be born, had been born within
this Realm of England; any Law, Statute, Matter, or Thing whatsoever to
the contrary notwithstanding. Provided always, and be it further
enacted and declared by the Authority aforesaid, That every Person and
Persons, who shall be naturalized by virtue of this Act of Parliament,
and shall become a Papist, or profess the Popish Religion, shall not
enjoy any Benefit or Advantage of a natural born Subject of England;
but every such Person shall be adjudged and taken as an Alien, born out
of the Allegiance of the Queen of England, to all Intents and Purposes
whatsoever; any Thing herein contained to the contrary
notwithstanding."
The respondent was a lineal descendant of the Princess Sophia and
was not a Papist and did not profess the Popish religion.
The other relevant enactments are fully stated in the opinion of
Viscount Simonds.
Sir Reginald Manningham-Buller Q.C., A.-G. and Bryan
Clauson for
the appellant. The descendants of the Electress Sophia include, or have
included, the late Kaiser, the German, Dutch, Danish, Norwegian,
Swedish, Greek, Rumanian, Yugoslav and Russian royal families. The
effect of the Act of 1705 is and was only to naturalize those lineal
descendants of the Electress
[439] Sophia who were born in her
lifetime. At the passing of the Act she had three sons alive, George
(who became George 1), Maximilian William and Ernest Augustus. She had
two grand-sons alive at that time, George (who became George II) and
Frederick William (later King of Prussia), and one granddaughter,
Sophia Dorothea (who later married her cousin Frederick William). At
the death of Queen Anne in 1714 the living descendants of the Electress
also included two great grandsons, Frederick Lewis (afterwards Prince
of Wales, son of George II) and Frederick (afterwards King of Prussia,
called "the Great"), three great granddaughters, Anne, Amelia Sophia
Eleanor and Caroline Elizabeth (sisters of Frederick Lewis), another
great granddaughter, Frederica Sophia Wilhelmina (sister of Frederick).
Thus there were six lineal descendants born when the Act was passed and
six more born before Queen Anne died. It is to be noted that Phillipine
Charlotte, who was born in 171G and died in 1801, a sister of
Frederick, married Carl, Duke of Brunswick-Wolfenbuttel, and had a son,
Charles William Ferdinand, Prince of Brunswick Lunenburg, who was
naturalized by Act of Parliament in 1763-4.
The Act 7 Jac. 1, c. 2 of
1609, provided that all persons over the age of 18 years who were to be
naturalized must first receive the Sacrament of the Lord's Supper and
take the Oath of Allegiance and the Oath of Supremacy in the manner
therein prescribed. When the question arose of naturalizing the
Electress Sophia and her descendants, some amendment had to be made to
this Act. This was done by a preliminary Act, 4 Anne, c. 1 (also known
as 4 & 5 Anne, c. 14), which enacted that whereas the
Electress' " and the issue of her body are to be naturalized and by
reason of their being beyond the seas they cannot qualify themselves
thereunto " according to the formalities of the Act of James I, a Bill
for their naturalization should be exhibited, "any law ... to the
contrary notwithstanding." This Act shows clearly the reason for the
statute 4 Anne, c. 4, and the intention to provide for the
naturalization of the issue of the Electress who were then alive and
then beyond the seas. It operates in relation to persons within the
scope of the Act of 1609.
In the Act 4 Anne, c. 4, the
words " in Your Majesty's Life Time " cover both parts of the sentence
in which they occur, and that sentence shows the intention to
naturalize those descendants of the Electress born in Queen Anne's
lifetime, and no more. The intention is wider than that of 4 Anne, c.
1, which was that those overseas should be naturalized. Those who were
[440] born after 1705 and before 1714 would be
naturalized at birth and
so the Act of James I would not apply to them at all.
This question does not just
affect the respondent and some 400 other persons. It has wider
repercussions, for it might be argued that a family all members of
which were, in the Court of Appeal's view, British by the Act of 1705,
could not be foreign for the purposes of the Royal Marriages Act, 1772.
That would throw doubt on some interests taken under marriage
settlements and on the right to some titles.
In the Act 4 Anne, c. 4, the
words " born or hereafter to be born " were intended to make it
perfectly clear that the Act was to cover some born after its passage.
As to the rules for the
construction of this Act, see Maxwell on Interpretation of Statutes,
10th ed., pp. 1-2, 17, 19. They cover both the preamble and the
enacting part of the Act.
In 1705 the position as to the
succession to the Crown was settled by the Bill of Rights, 1688 (1
Will. & Mar., sess.. 2, c.2).. The Act of 1705 shows that it was
then thought desirable that the Electress and those of her descendants
who were then living should become acquainted with the laws and
constitutions of England. It can hardly have been an object of this Act
that all her descendants throughout the centuries should become so
acquainted. The important point is that without the Act 4 Anne, c. 4,
the successor of Queen Anne would not have been English at the time of
accession. There was no need to legislate for the nationality of the
children born to Queen Anne's successor after accession, because they
would be British anyhow under the Act 25 Edw. 3, stat. 1. In 1705 it
was evident that the Electress or one of her descendants born in Queen
Anne's lifetime must be Queen Anne's successor or the Act of Settlement
would fail. With the Jacobite troubles, there was a very real object in
securing that her successor should be British or English before the
moment of succession. Parliament should not be assumed to have intended
what the respondent contends, especially as it is contrary to the
intention expressed in the preamble, which only applies to those born
in Queen Anne's lifetime. The enacting words do not make it necessary
to give the Act a wider effect than the expressed intention.
The following propositions are
submitted : (1) The fundamental rule of interpretation, to which all
others are subordinated, is that the statute is to be expounded
according to the intent of them that made it. (2) To discover that
intention it is proper to read, not only the enacting words, but also
the preamble, and to have [441] regard to the
surrounding
circumstances. (3) If the enacting words are specific, they must have
effect given to them, whatever the preamble may contain. (4) If, on the
other hand, the enact-ing words are general (as opposed to specific) or
ambiguous, or if there is a doubt as to the meaning to be given to
them, then the preamble may explain them, limit them or widen them, and
the court may consider the fact that, by not giving a limited meaning
to general words, absurdity or inconvenience may arise. It is not
submitted that one can construe an Act in the light of what happened
later. (5) It is not necessary for the enacting words to be ambiguous
before the preamble can be used, so long as they are phrased in general
terms.
Here there is a conflict
between the intent of the Act as shown in the preamble and the general
words of the enacting part, which may be interpreted as going further
than Parliament intended. The Act should be construed very strictly.
If the respondent were right,
the Act 4 Anne, c. 4, would indicate a very great extension of the
intent of the Act 4 Anne, c. 1. There was no need of the latter Act in
relation to unborn members of the family of the Electress and its only
purpose was to make it possible to bring in a Bill to naturalize those
then living and over 18 years of age, despite the Act of James I. The
Act 4 Anne, c. 4, went further and included those living born in the
lifetime of Queen Anne. That was the expressed intention of the
preamble. The practice was not to naturalize people who were not alive.
In 1705 there must have been a
desire that the taunt should not be used by the Jacobites that the
successor to the English throne was a foreigner. Naturalization could
have been limited to the next in succession, but Parliament may have
thought it safer to go further. In 1705 the Electress was 75 years old;
she was next in succession. It would be one thing to naturalize ex
abundanti cautela her descendants living then and born during the
lifetime of Queen Anne and another to naturalize all her descendants
throughout the centuries.
The statute 25 Edw. 3, stat.
1, is the basis of the law as to the nationality of children born
abroad. The matter was con-sidered in Rex v. Albany Street
Police Station Superintendent [[1915] 3 K.B. 716, 717-718,
719, 720, 722; 31 T.L.R. 634].
As to the question of giving effect to the intention of Parliament,
both Powell v. Kempton Park Racecourse Co. Ltd.
[[1897] 2 Q.B. 242; 13 T.L.R. 443; [1899] A.C. 143; 15
T.L.R. 266] and [442] the Sussex
Peerage Case
[(1844) 11 Cl. & Fin. 85] ignored the long line of
decisions that it is permissible to restrict
the generality of words so as to accord with the intention of
Parliament. In those two cases those decisions were not cited or
considered. That line of decisions starts with Stradling v. Morgan
[(1560) 1 Plowd. 199, 203, 204, 205] and Eyston
v. Studd. [(1574) 2 Plowd. 463, 464].
Eastman
Photographic Materials Go. Ltd. v. Comptroller-General of
Patents, Designs and Trade Marks [[1898] A.C. 571, 575-576;
14 T.L.R. 527] approves the former
case. See also Stowel v. Zouch [(1569) 1
Plowd. 353, 356, 369]; Copeman v.
Gallant [(1716) 1 P.Wms. 314, 317, 318, 320]; Ryall
v. Rolle [(1749) 1 Atk. 165, 169, 174, 175, 178-179.
182]; Crespigny v.
Wittenoom [(1792) 4 Term Rep. 790, 792, 793];
Brett v. Brett [(1826) 3 Add. 210, 214-220];
Halton v. Cove [(1830) 1 B. & Ad.
538, 556-557, 558]; Salkeld v. Johnson [(1848)
2 Exch. 256, 273, 278-279, 282-283; (1849) 1 Mac. & G.
242];
Reg. v. Bateman [(1857) 27 L.J.M.C. 95];
Hughes v. Chester and
Holyhead Railway Co. [(1861) 1 Dr. & Sm. 524, 526-527,
534, 535-537, 540-541, 542,
544; (C.A.) 3 De Q.F. & J. 352]; Caledonian Railway Co. v.
North
British Railway Co. [(1881) 6 App.Cas. 114, 121, 122, 124,
126-127,
131-133, 136-137, 137-138]; West Ham Churchwardens and
Overseers v.
Iles [(1883) 8 App.Cas. 386, 388-389]; Yates v.
The Queen [(1885) 14 Q.B.D. 648, 653-654, 655-657,
657-658, 659, 659-660,
664-665; sub nom. Reg. v. Yates, 1 T.L.R. 193];
Reg. v.
Clarence [(1888) 22 Q.B.D. 23, 65; 5 T.L.R. 61];
Cox v. Flakes, [(1890) 15 App.Cas. 506. 517, 518, 519, 525,
526, 529; 6 T.L.R.
465] and Watney,
Combe, Reid & Co. Ltd. v. Berners [[1915] A.C.
885, 891; 31 T.L.R. 449].
As to The Sussex Peerage Case, [11 Cl. & Fin.
85, 141-142, 143-144, 147] no
argument was there presented to the House on the construction of
statutes, and there were no doubts arising from the preamble of the Act
there in question. The words of the statute were in themselves precise
and unambiguous. What Tindal C.J. said [Ibid. 143] on
the
construction of statutes was only a general observation. All he was
saying was that if a statute is specific in its terms one cannot go
beyond it, but that if a doubt arises one is entitled to look at the
preamble and the surrounding circumstances. The ambiguity may be
latent, only appearing when one looks at the surrounding circumstances.
As to Powell v. Kempton Park Racecourse Co. Ltd., [[1897]
2 Q.B.
242, 249-250, 251, 255-256, 256-257, 260, 261, 265-266; [1899] A.C.
143, 157, 158, 165, 167, 177, 182-183, 183-185, 192-193] it is
hard to say what it really decided on the point of looking at
the [443] preamble. The decision was on
the construction of the enacting words, irrespective of the preamble.
None of the cases before 1899 was there brought to the attention of the
House.
The language of the preamble
to the statute 4 Anne, c. 4, is clear. That preamble may be looked at
on the principle that if the enacting words are general, as opposed to
specific, or if they are ambiguous, or if there is a real doubt as to
the meaning to be given to them, the preamble may
have the effect of giving a limited meaning to the general words or
resolving the ambiguity. There may be ambiguity in the language used
or, without such an ambiguity, there may be a serious doubt as to the
meaning, arising from the surrounding circumstances, so that though the
words may appear clear and unambiguous, in the light of the surrounding
circumstances it is certain that Parliament cannot have intended their
apparent meaning. In construing a statute one is entitled to consider
the mischief aimed at, but the fundamental rule is to seek to give
effect to the intent of the legislature. The old cases from the time of
Elizabeth I show many instances where the enacting words have been cut
down to give effect to the intention of Parliament, as gleaned from the
preamble or the surrounding circumstances. In reading a statute one is
entitled to look at the whole of it, including the preamble. If, after
one has done so, it appears that the meaning of a particular section is
clear beyond a doubt, one must give effect to it. But where any doubt
arises, either from the preamble or the surrounding circumstances, the
preamble becomes the key to the statute. See also the recent authority,
Pratt v. Cook, Son & Co. (St. Paul's) Ltd. [[1940]
A.C. 437, 443-446, 447-448; 56 T.L.R, 363; [1940] 1 All
E.R. 440]
As to the suggestion that the
effect of the Act of Union of the two Kingdoms of England and Scotland
in 1706 (6 Anne, c. 11) was to prevent the naturalization of
descendants of the Electress Sophia subsequently born in the lifetime
of Queen Anne, and that it impliedly repealed the Act 4 Anne, c. 4,
that is not a ground relied on by the appellant. That would be a
surprising result. There is nothing in the Act of Union from which that
can be implied and nothing in the Act 4 Anne, c. 4, inconsistent with
it. The Act of Union does not in terms provide that after the Union all
subjects of England and all subjects of Scotland are to be subjects of
the United Kingdom, but by article IV of the Treaty set out in the Act
that is assumed. By the Act 4 Anne, c. 4, the Electress Sophia and her
descendants
[444] were in 1705 to be deemed for
all purposes natural born English subjects and the effect of the Act of
Union was to make what may be called the Royal Family British. The Act
of Union must not be treated as repealing all the statutory provisions
in England and Scotland providing for either English or Scottish
nationality. In view of the expressed objects of the Act 4 Anne, c. 4,
it would be remarkable if it were defeated by an Act passed in 1706.
Unless pre-Union English nationality law applied after the Union, so as
to govern British nationality, there was no law of British nationality
at all in existence when the Act of Union took effect; but the Acts of
Edward III and James I (already referred to) were regarded as still in
force after the Union. Those who under the terms of the Act 4 Anne, c.
4, became English, whether before or after the Union, automatically
became citizens of the United Kingdom by virtue of the Act of Union.
As to Macao v. Officers of State for Scotland,
[(1822) 1 Shaw's App. 138, 139, 141, 142-145, 146, 148,
148-149]that decision did not go so far as to hold that the Act
of Union
repealed earlier statutes of naturalization in Scotland.
In Queen Anne's time there was
no machinery for naturalization other than the introduction of a Bill
into Parliament, and in such a case as the present express provision
would have to be made to exempt the applicant from the provisions of
the statute of James I. This is exemplified in the statute of 1734, 7
Geo. 2, c. 3, an Act for exhibiting a Bill for naturalizing the Prince
of Orange, who was marrying a descendant of the Electress Sophia. He
did not come under 4 Anne, c. 4, on any interpretation.
Next there is the similar
statute of 1763-4, 4 Geo. 3, c. 4, for exhibiting a Bill for
naturalizing the Prince of Brunswick Lunenburg. On the respondent's
view, he would be within the statute 4 Anne, c. 4, as being a lineal
descendant of the Electress Sophia, so that the Act of 1763 was
unnecessary, but on the submission of the appellant he was not within
that Act, because he was born after the death of Queen Anne.
The Act of 1763-4 can be
considered in construing the statute 4 Anne, c. 4: Maxwell on the
Interpretation of Statutes, 10th ed., pp. 35-36. It shows that in
1763-4 Parliament took the view that the Prince was not naturalized by
the Act of Anne. See also Kirkness V. John Hudson &
Co. Ltd. [[1955] A.C. 696, 710-712, 725, 735, 738-739;
[1955] 2
All E.R. 345] The
construction of the Act of Anne being open to doubt, one is entitled to
look at the later Act to see what Parliament thought it had done. There
is an ambiguity in the Act of Anne as a whole. As to the [445]
historical background of that Act, see the Cambridge Modern History,
vol. VI, pp. 11-12.
The respondent's
interpretation involves a transposition of the words " in Your
Majesty's Life Time " in the Act of Anne. When one sees to whom the
word " they " refers, one gets the limitation on the birth. The crucial
passage should therefore read : "It is just and highly
reasonable that the Princess Sophia . . . and the issue of her body and
all persons lineally descending from her in Your Majesty's Life Time
should be naturalized."
The encouragement to become
acquainted with the laws and constitutions of the realm really could
not operate ad infinitum. As to the Act 4 Anne, c. 1, that confirms the
appellant's view of the preamble to the Act 4 Anne, c. 4. Since the
first Act is limited to living persons, one gets nearer to that if one
limits the second Act to persons born in Queen Anne's life time than if
one does not. On this point the reasoning of the Court of Appeal28
[[1956] Ch. 188, 204, 213, 217-218; [1955] 3 All E.R.
647] was ill-founded.
" They, in Your Majesty's Life
Time " must refer to persons born in Queen Anne's lifetime. The
surrounding circumstances support this view of the expressed purpose of
the preamble. It was never the purpose of Parliament that the Act
should extend in operation throughout the centuries. Its operation must
be confined to those living in Queen Anne's reign. Using a racing
expression, there was at her death a field of 12 from whom the winner,
her successor, must come. No useful purpose would be served by
naturalizing all the Electress Sophia's descendants who might become
crowned heads in Europe.
The provision made was
sensible. At the time the Electress Sophia, the heir to the throne, was
75 years old and the prospect of her surviving Queen Anne was not
great. In 1705 one had to consider the prospect of which of her
children or grandchildren would in fact prove to be Queen Anne's
successor. It might be someone born after 1705 and before 1714. That
was the reason for the extension of the Act 4 Anne, c. 4, beyond the
Act 4 Anne, c. 1. Further, it was desirable that the children of Queen
Anne's successor born before he acceded should be naturalized.
Where there is a doubt as to
the intention of Parliament, the preamble to the Act is the key. If
there are various meanings to be attached to the enacting words, some
wider than the preamble and some not, one takes the intention that
accords with the preamble. In construing an Act one reads the whole of
it and [446] the preamble is part of the Act.
A real
doubt exists here because of
the preamble.
If, contrary to the
appellant's submission, it is necessary to find some generality in the
enacting words before one can consider the other parts of the
enactment, then there is generality here, because the words " born or
hereafter to be born " really mean " all descendants," a phrase as
general as " any descendants the Electress Sophia may have."
R. 0. Wilberforce Q.C. and John Knox for
the respondent. A decision in the respondent's favour would affect a
great number of other persons. This action is brought to establish his
status. For over 250 years his family have claimed to be British
subjects and the claim has not been disputed. When Hanover was overrun
by the Prussians in 1866, the Prince of Hanover and his family went to
Austria. There is no suggestion that at that time, at any rate, they
acquired German nationality, though they may have acquired Austrian
nationality. The respondent is in fact the heir male of the Electress
Sophia at this time, so, if anyone should be entitled to the benefit of
the Act of Anne, it is he.'
The claim depends on the
construction of a short statute, untechnical in subject-matter and
expression and plain in its meaning. The words used aim at a certain
result as plainly as any language can. The only difficulty lies in the
preamble, which raises two questions: (1) What does it mean? and (2)
Does it point so clearly to an intention of Parliament as to impose
itself on the enacting part?
The respondent's propositions are: (1) The enacting words are plain
and unambiguous. (2) There is no legal or factual
contest outside the Act in which the words are to be placed which makes
them any the less plain and unambiguous or casts doubt on whether they
reflect the intention of Parliament. (3) The only evidence of
parliamentary intent is in the preamble and that is completely
uncertain and inconclusive and is insufficient to restrict words such
as are here found in the enacting part; there is no such incongruity
between the enacting words and the preamble as to require modification
of the former. (4) Questions as to inconvenience or absurdity must be
judged as they would appear in 1705 and not at the present time.
If there is any ambiguity here
it is obtained by reading the enacting words with something else,
either with the preamble or with some surrounding circumstances.
Admittedly words must be read in their legal context, even if it is a
context outside the Act, But the legal context must be part of a wider
structure,
[447] and here there is no such
context, no system or structure of which these word's form part and
into which they must be fitted, so that, when so fitted, words which
appeared unambiguous become ambiguous.
One may also take into
account the facts and circumstances in which the Act was passed, and
these may raise doubts whether words, apparently clear, have in fact
the meaning attributed to them, but, in such cases, no
result can be achieved in the face of words in themselves unambiguous,
unless the preamble can be invoked to bring those facts and
circumstances into the intent of the Act. Here the words were never
ambiguous and the question, therefore, is whether they can nevertheless
be restricted by the preamble. In the authorities there is a
distinction between statutes where the enacting words are clear and
cannot be so controlled and those where they are not clear and can be
controlled: Crespigny v. Wittenoom [4 Term
Rep. 790]; Hughes v.
Chester and Holyhead Railway Co. [1 Dr. & Sm. 524];
Salkeld v. Johnson [2 Exch. 256], and Powell
v. Kempton Park Racecourse Co. Ltd.[[1897] 2 Q.B.
242]
Here the words are not
general but universal, designedly intended and deliberately drafted to
include everything of their kind. They do not leave it open whether
there are different kinds, which may or may not be included. They are
clear and not general and therefore cannot be restricted by the
preamble. They negative any exclusion of a particular kind.
In interpreting a statute one
should first read the whole Act and then consider any context, within
or without the Act, in which the particular words in question should be
read, first the context within the Act (such as other sections) and
then the context outside the Act, the legal context, to see whether it
provides any cause for limiting or extending the words. As to the
preamble, unless it is clear, it provides no manifestation of
parliamentary intent. Here the preamble is not clear; it is capable of
two meanings. If the mischief to be remedied is stated, that
is
a great help, but it is a dangerous guide in many cases, because often
the legislature states a mischief and the remedy is very much wider, so
that one cannot necessarily conclude, because a mischief is stated,
that the remedy provided is exactly equivalent to it.
The Act 4 Anne, c. 4, refers
first to the heirs of the Electress Sophia and then to her issue and "
all persons lineally descending." The enacting words include the
expression "born or
[448] " hereafter to be born " and
are deliberately designed to include within the class every possible
person that the legislature could conceive. If any limitation to the
class had been intended, it is inconceivable that that formula would
have been used, for the class is stated in an unlimited form: see Smith
v. East Elloe Rural District Council. [[1956]
A.G. 736, 767; [1956] 1 All E.E. 855] The
terms of this Act show the apparent intention to include as wide a
range of persons as possible.
The Act 4 Anne, c. 1, removed
the barrier to the naturalization of certain persons created by the Act
of James I. No difficulty is created if the barrier was lifted in
relation to a person to whom it did not, in any event, apply, because
that person was then under 18 years old. The plain purpose of that Act
was to remove the barrier in relation to the living issue of the
Electress Sophia who were over 18 years old and who, if it had not been
passed, would not have been able to qualify because they were beyond
the seas. After that, the legislature proceeded with its original
intention to naturalize a wider class. The Act focussed on the persons
affected by the barrier and was not meant to deal with anyone else.
That is as good a way of legislating as if the legislature had
described in the first Act the whole class who were ultimately going to
be dealt with in the second Act. As, on any view, the legislature in
the Act 4 Anne, c. 4, departed from the very limited scope of the first
Act, the only question is as to the extent of the departure, and the
first Act affords no help in construing the second.
One is not justified in
assuming that in the Act 4 Anne, c. 4, the legislature were legislating
for the succession at all, that the object of the legislation was to
help in securing the Protestant succession to the Throne. The preamble
shows that the Act was passed alio intuitu. It was for the benefit of
the future Royal Family to introduce them to the customs of the
kingdom, since, if nothing were done, they would be foreigners at the
death of Queen Anne. It might seem ingenuous, but, looking at the
situation in 1705, it was natural to seek to bring them into the
British community. If the legislature had been thinking of the
successor they would have used the words " heirs of the body." It does
not appear that there was in the minds of the legislature any definite
limitation to the lifetime of Queen Anne. They may have been thinking
of an indefinite period. It is not unreasonable to suppose that they
were projecting their thoughts forward for a certain period of time,
not counted in hundreds of years but [449]
perhaps in fifties. They were
looking forward, so far as any legislators do, to the establishment of
a new Royal House and were content to legislate as far as they could
see. That sort of looking forward to the sort
of horizon which legislators can see ahead of them, normally about 50
years, is not an unreasonable intention to impute to Parliament and
does not cast on the respondent the onus of suggesting some definite
date as being present in the mind of the legislature. If the intention
had been simply to ensure that the person who succeeded Queen Anne
should be English, that could have been achieved by other words, e.g.,
those used in the statute 10 Anne, c. 4. What was uppermost in the mind
of the legislature was the consideration of the education of the future
Royal Family in our laws and customs. The preamble to the Act 4 Anne,
c. 4, full of rather fulsome expressions, is not comparable with a
"mischief" preamble reciting defects which have to be cured. Every word
is not to be read au pied de la lettre.
This Act was still necessary in 1818 and one >cannot
impute to Parliament an intention that it should be effective within a
certain period, after which it was to become entirely superfluous. In
1818, when the future Queen Victoria was born, there was alive
no issue of any son or daughter of George III or any son of George II,
and the succession would have gone, but for her birth, to issue of a
daughter of George II, who would have been naturalized only by virtue
of this Act. Thus, speculations as to when the Act would have become
entirely superfluous are precarious. To impute to the legislature a
limited intention only for the Act to have effect until Queen Anne's
death, which might have happened in five or 40 years, is in the realm
of pure speculation. This is supported by the facts of the family of
the Electress Sophia. Before 1705 three of her sons had been killed in
battle unmarried. Two of her sons living in 1705, Maximilian William
and Ernest Augustus, died unmarried. Her daughter, Sophia Charlotte,
died in 1705 leaving only one child. The future George II only married
in 1705. Thus in 1705 it would have been very precarious to calculate
that a certain limited category of the descendants of the Electress
Sophia would have been sufficient to secure the succession. In certain
contingencies, by no means remote, persons born after the death of
Queen Anne would have been brought into the succession very early. It
would be reasonable if in this Act all possible successors were
intended to be included, leaving it to some future Parliament to deal
with any embarrassment which could not then be envisaged.
[450]
Up to 1705 naturalization and
denization were very freely granted. See, for example, a private Act of
Parliament, 4 & 5 Anne, c. 94, in the Long Calendar, whereby 195
persons were naturalized, and also the Act 7 Anne, c. 5. It was not
uncommon to naturalize a person and his heirs. Naturalization and
denization were not then hedged about with the same restrictions as
now, and there is no reason to impute to the Parliament of 1705 a
restrictive policy with regard to it. Inconveniences like dual
nationality were not considerations which would have been present to
the mind of the legislature. The divisions then were not national, but
between Protestant and Catholic. With the object of strengthening the
Protestant cause it was reasonable that Parliament should have acted
generously rather than restrictively towards the future Royal Family.
The words of this Act are the
sole indication of what the legislature intended in this case. Whatever
interpretation is put on the preamble involves some degree of
distortion, but the respondent's involves less than the appellant's.
The words " in " Your Majesty's Life Time " refer to the occasion of
the passing of the Act, the time at which the thing is done to the
persons concerned.
The appellant's construction
involves a substantial reconstruction or expansion of the words. If it
was intended.to limit the class of persons to be benefited, it is
inconceivable from a drafting point of view that it was not clone by
words which described, delineated and marked out the class.
" Naturalized " means having
an Act of naturalization passed. The reason for the words " in Your
Majesty's Life Time " is that the normal time to legislate would have
been after the Queen's death but that, instead of waiting, Parliament
was taking action before. Parliament was much preoccupied with what
would happen on the Queen's death: see the Act 4 Anne, c. 8. In the old
naturalization Acts the wor'd "naturalized" is traditionally used in
the preambles and refers to the Act rather than the conferment of
naturalization. The words only mean that in the Queen's lifetime an Act
of naturalization shall be passed. If the appellant's construction was
right, nothing could have been easier than to put the words " in Your
Majesty's Life Time " into the enacting part of the Act. The
legislature is assumed to have used the clearest way of expressing its
intention: Craies on Statute Law, 5th ed, pp. 87-88. There is no
indication in the preamble of a legislative intention sufficiently
clear to override the enacting words.
[451]
Alternatively, even if there
is some manifestation in the preamble of an intent to limit the scope
of the Act, the preamble cannot control or limit the enacting words.
The authorities ~ bearing on this point fall into several categories.
(1) The words used may form part of a context outside the Act, a
factual or a legislative or a legal context, which must be brought in
to explain them, e.g., words like "any appeals," "any judgment," "any
order " or " any prosecution." (2) Then there are the statutes which on
the face of them are passed to correct a particular mischief. In those
cases one must consider the mischief, although often, while the
mischief is the occasion for some remedy, the . legislature passes an
enactment in wider terms. It is some guidance to see what the mischief
is, particularly when there is some doubt in the enacting part. (3)
Then there are the cases where generic words are used covering several
things; one may look at the preamble and the antecedents of the Act to
see which of the several things is intended. These are cases where the
word " any " is used, e.g., " any will " or " any place " or " any man
" or " any goods " or " any river."
The first two categories do
not help here. As to the third category, there is a distinction between
generic or undefined words, on the one hand, and universal,
all-embracing words, on the other, e.g., " all persons," "issue " or
"lineal descendants " born or hereafter to be born." Words are
universal where the expression is such that it is impossible to ask the
question whether there are different kinds of things or persons which
may or may not be included.
Where there is no ambiguity in
the enacting words, their meaning cannot be altered by the preamble,
either by expanding or restricting them: Maxwell on the Interpretation
of Statutes. 10th ed., pp. 44-45.
As to the five propositions
submitted by the appellant, the real difference between the parties is
as to the situation arising when the enacting words are " general."
One must not speculate as to the intention of Parliament: Lumsden
v. Inland Revenue Commissioners. [1914] A.C. 877,
887, 892; 30 T.L.R. 673] As to the
preamble rule, see Bentley v. Rotherham and Kimberworth
Local Board of Health [(1876) 4 Ch.D. 588, 592]; Bourne
v. Keane [[1919] A.C. 815, 839, 841-842, 870; 35
T.L.R. 560];
Stradling v. Morgan [1 Plowd. 199, 201, 203,
204, 205]; Stowel v. Zouch [ l Plowd.
353, 355, 356, 360, 361, 365, 368, 369, 375];
Eyston v. Studd [2
Plowd. 463, 464, 468]; Copeman v. Gallant [1
P.Wms. 314, 320-321];
Ryall [452] v. Rolle [1
Atk. 165,
169, 174, 175. 178-179, 182]; Mace v. Cadell
[(1771) 1 Cowp. 232, 232-233]; Brett v. Brett [3
Add. 210, 216-217, 218-220, 221];
Crespigny v. Wittenoom [1 Term Rep. 790,
791, 792-793]; Halton v. Cove [1 B.&i Ad.
538, 519, 550, 557, 558];
Salkeld v. Johnson [2 Exch. 256, 273, 279, 282,
283-284;
1 Mac. & G. 242, 259, 264]; Reg. v. Bateman
[27 L.J.M.C. 95]; Hughes v. Chester and
Holyhead
Railway Co. [1 Dr. & Sm. 524, 533, 534, 536,
537,
540, 544, 555; 3 De G.F. & J. 352]; Caledonian
Railway Co. v. North
British Railway Co.[6 App.Cas. 114, 121, 122, 124, 125,126,
131-132,
135, 137-138]; West Ham Churchwardens and
Overseers v. Iles. [8
App.Cas. 386, 387, 388-389, 392]; Yates v. The Queen
[14 Q.B.D. 648, 654, 655, 657, 658, 659, 664-665]; Reg. v.
Clarence [22 Q.B.D. 23. 65]; Cox v. Hakes
[15 App.Cas. 506, 517, 520, 525, 529];
Watney, Combe, Reid & Co. Ltd. v. Berners [1915] A.C. 885, 890, 891];
The Sussex
Peerage Case [11 Cl. & Fin. 85, 91, 93, 96, 135, 136,
141, 143, 144, 147]; Powell v. Kempton Park
Racecourse
Co. Ltd., [[1897] 2 Q.B. 242. 255-256. 256-257, 265, 266,
299, 303; [1899]
A.C. 143, 176, 184-185, 192-193], and Pratt v. Cook, Son &
Co. (St.
Paul's) Ltd [[1940] A.C. 437, 448].
The conclusion to be drawn
from these cases is that if enacting words are plain and unambiguous
one does not need to look at the preamble to an Act of Parliament, but
if they are not clear and unambiguous one may look at it. One must not
create or' imagine an ambiguity or search for reasons for doubt. Only
if the words are fairly capable of more than one meaning can one look
at the preamble to resolve the doubt. Here the enacting words are clear
without any limitation of a period. The words " in Your Majesty's Life
Time " in the preamble create a problem, but the significance of their
presence there must be balanced against the significance of their
omission in the enacting words.
Further, there is nothing
inherently absurd or inconvenient in providing for the naturalization
for an indefinite period of the descendants of a living person. Unless
one looks at the matter a posteriori there is nothing in it contrary to
any intention that one can ascribe to Parliament in 1705. There is
nothing absurd in wishing to encourage those descendants, without
specifying a limit, to become acquainted with our laws and
constitutions. As to section 2 of the Act, imposing a bar on such
descendants as should become Papists, that fits in well with the bar in
relation [453] to the succession to the Crown
and it is
not unreasonable or absurd
that it should subsist here.
As to absurdity, see Craies on Statute Law, 5th ed., pp. 82-84, and
the cases there cited.
Until the Aliens Act, 1844,
dealing generally with nationality and naturalization, naturalization
was a matter of individual action, Acts conferring the privileges of
natural-born British subjects on groups or persons: see Mervyn Jones on
British Nationality Law, 1956 ed., p. 64n.
As to the Act of 1763-4, 4
Geo. 3, c. 4, relating to the naturalization of the Prince of Brunswick
Lunenburg, it was customary, when persons married into the Royal
Family, to pass legislation naturalizing them and also voting them a
sum of money. The circumstances of this particular case are related in
a letter from Horace Walpole to the Earl of Hertford dated January 22,
1764: Letters of Horace Walpole (Cunningham's edition, 1857), vol. IV,
p. 171. This Act may well have been passed for a number of reasons,
routine, political or the like, without any great investigation being
made into the necessity for it. In any event, it does not profess to
interpret the Act of 1705.
Compare the Act of 1763-4 with Duke of Brunswick v. King
of Hanover, [(1844) 6 Beav. 1, 19, 33-34, 34-35]
where
there was no suggestion by the court that the Act of 1705 only applied
during Queen Anne's lifetime or that it had expired. Further, the
Statute Law Revision Act, 1867, repealed the Act 4 Anne, c. 1, but not
4 Anne, c.,4, and that indicates the view of the legislature that the
latter was still in force, whereas the former was obviously temporary.
Since the Act of 1867 contained the usual provision for preserving any
status already acquired, the Act 4 Anne, c. 4, cannot have been left on
the statute book to preserve the position of those naturalized by
virtue of it.
The principle approved in Ormond Investment Co. Ltd, v. Betts
[[1928] A.C. 143, 164-165] is not restricted to
technical Finance Acts. Before a subsequent Act
can have any effect in the construction of an earlier Act it must be
found that the earlier Act is obscure or ambiguous or readily capable
of more than one interpretation and that the subsequent Act attaches a
certain meaning to words in the earlier Act. But the Act of 1763-4 does
not purport to interpret anything. Alternatively, if it is to be
regarded as expressing an opinion, it is wrong.
[454]
No help in construing the Act
4 Anne, c. 4, can be got either from extraneous circumstances or
legislation outside it. There is no reason to impute to Parliament in
1705 any restrictive intention with regard to naturalization. The Act
has three characteristics. (1) It is couched in generous language. (2)
The preamble is evidently complimentary in character. (3) The enacting
part leaves in practically everything in the preamble but adds to it.
It was reasonable to encourage the persons described to become
acquainted with the laws and constitutions of the realm and reasonable
to legislate for that in Queen Anne's lifetime, so that they might have
time to do so before she died. The words used were suitable to make the
intention plain. Further, it was perfectly proper to say in 1705: " Let
us naturalize now all the issue of the Electress Sophia and her
descendants." That is consistent with the crucial word " they " and
accords with the other naturalization Acts referred to. The object of
encouraging all descendants to become acquainted with the laws and
constitutions of the realm could not be accomplished by naturalizing a
class limited to those born in Queen Anne's lifetime.
If the preamble had said that
it was the intention to naturalize the Electress and all persons
descending from her, and the enacting part had said that " in Your
Majesty's Life Time the said persons shall be naturalized," it could
not have been held that the enacting words were limited to persons born
in her lifetime, for it would be contrary to the intention expressed in
the preamble.
Even if the words " in Your
Majesty's Life Time " could limit the class of after-born persons, they
do not readily fit in with the case of persons living at the date of
the Act, its most important objects, since those persons could not be
subject to the limitation. On the appellant's submissions there is a
conflict produced between the general part of the preamble " all
persons lineally descending " and the limited statement of the class in
the second part.
The enacting words are as
clear as language can be. This is not a case where the word " any " is
used in the enacting words while the preamble points to a definite
class, so that it is only necessary to read " any " as " any such." The
enacting words indicate that the preamble was not intended to control
them.
John Knox following. As
to the formalities required in the case of naturalization in the
eighteenth century and after, see the Acts to naturalize the Prince of
Orange (7 Geo. 2, c. 3), the Prince of Brunswick Lunenburg (4 Geo. 3,
c. 4) and Prince Albert (3 & 4 Vict. c. 1). Among general
naturalization Acts, 13 Geo. 2,
[455] c. 7, required seven years'
residence in any of the American colonies, besides receiving the
Sacrament and taking the prescribed oaths; 22 Geo. 2, c. 45, required
by section 8 three years' service on board English ships employed in
the whale fishery, besides receiving the Sacrament and taking the
prescribed oaths; 13 Geo. 2, c. 3, naturalized foreign seamen serving
two years in British ships in time of war. The preamble to 14 Geo. 3,
c. 84, shows that persons did take advantage of naturalization Acts
without becoming permanently resident in this country, though, unless a
special dispensation was granted, it would be necessary for them to
come here to comply with the requirements of the statute of James I.
Technically, there would have to be a connexion with this country, but
in practice for most of the eighteenth century that requirement was
avoided until 14 Geo. 3, c. 84.
As to the principles of the construction of statutes, see Bradlaugh
v. Clarke. [(1883) 8 App.Cas. 354, 362-363]
Sir Reginald Manningham-Buller Q.C., A.-G. in
reply. No inference of any value is to be drawn from the omission of 4
Anne, c. 4, from the Statute Law Revision Act, 1867. The Act of 1763-4
is relied on because, where a statute has been accepted as having a
certain meaning, the courts, after years have passed, are reluctant to
disturb that meaning.
In Duke of Brunswick v. King of Hanover
[6 Beav. 1] there is no indication
whether or not the Duke's claim to be British by virtue of the Act of
Anne was accepted by the court. All the case shows is that the
respondent is not the first to make the claim.
As to the meaning of " issue,
" see Stroud's Judicial Dictionary, 2nd ed., vol. II, pp. 1518-1519,
where in paragraph 18 there is a list of instances where it was read as
"children," and in paragraph 19 a shorter list of instances where it
was read as "descendants." Here the words were intended to apply to the
children and grandchildren of the Electress. That is indicated by the
first sentence of the Act 4 Anne, c. 1, showing the intention of what
was to be done by the Act 4 Anne, c. 4.
In 1705 it was clear that, if
the Act of Settlement was not to fail, the successor to Queen Anne must
come from the ranks of the descendants of the Electress living at the
Queen's death. The longer they had the opportunity of becoming
acquainted with the laws and constitutions of the realm, the better.
For the purpose in view " heirs of the body " would not do as well as "
issue of the body."
[456]
There were obvious reasons for
encouraging those alive in 1705 and those born in Queen Anne's lifetime
to become acquainted with the laws and constitutions of the realm, but
it would not have been reasonable to encourage all descendants of the
Electress Sophia, however remote in point of time and however remote
from any possibility of succeeding to the Throne. In 1705 it would have
seemed needless and absurd to naturalize all descendants.
As to the use of the words "
in Your Majesty's Life Time," the respondent's contentions involve a
distortion and should be rejected because (1) the passing of the Bill
which became 4 Anne, c. 4, itself shows Parliament's view that it was
just and reasonable to naturalize at that time; (2) it was unnecessary
to make such a recitation as the respondent suggested; (3) Parliament
had already declared its intention to naturalize in 4 Anne, c. 1. The
words " deemed, taken and esteemed natural born subjects of " England "
merely explain what is meant by naturalization. The respondent, born in
1914, does not fit into the words " in "Your Majesty's Life Time." It
would be ridiculous to say that he was to be deemed in the lifetime of
Queen Anne a natural born subject of England.
It was necessary to make it
clear that the Act applied to persons born after as well as before the
Act of Anne, since it was unusual to naturalize unborn persons: see De
Geer v. Stone. [(1882) 22 Ch.D. 243] The
reason for the words " born or hereafter to be born " was to emphasize
the extension of 4 Anne, c. 4, beyond the express intention of 4 Anne,
c. 1. If whenever born " had been meant, it would have been used; it is
much shorter.
The words of the enacting part
leave a real doubt whether or not it was Parliament's intention to
naturalize all descendants of the Electress Sophia, whenever born.
Alternatively, the words used are as general as they could be. There is
no distinction between general and universal words. The generality may
be cut down to accord with the intention of Parliament ascertained from
the surrounding circumstances, the context and the preamble. The courts
will restrain the literal or general meaning if it produces absurdity
or inconvenience. If the enacting words are clear and capable of only
one meaning, the preamble cannot cut them down. But general words are
never in that sense absolutely clear.
The courts have never sought
to lay down rules as to the order in which the words of a statute
should be read. One is entitled to read the whole document. In
construing a document one does [457] not have
to read bits out of
the middle of it first. Having read through the whole document, one
must then ask oneself whether the enacting words are clear and
specific. It may be that while words like " vacation " or " criminal
prosecution " are not ambiguous, taken by themselves, there is a doubt
as to the extent of their application. So, even if the enacting words
are not ambiguous, the preamble can be looked at if they are phrased in
general terms, as they are here.
" Hereafter " only says "
after 1705." It gives no indication as to the future extent. It does
not mean " ever after," like the end of a fairy story where the lovers
live happily ever after.
Their Lordships took time for consideration.
Dec. 5.
Viscount Simonds.
My
Lords, the Court of Appeal has declared that H.R.H. Prince Ernest
Augustus of Hanover was, immediately before the coming into force of
the British Nationality Act, 1948, a British subject and that by virtue
of the provisions of that Act he is now a British subject. From this
decision, which is said to affect a number of other persons who may or
may not want to share the privileges or obligations of that status, the
Attorney-General has appealed to your Lordships" House. The question is
to be answered upon a consideration of a statute passed just 250 years
ago, the statute of 4 Anne, c. 4 of 1705, but before I look at its
provisions I will state the relevant facts which are not in dispute.
The respondent is a lineal
descendant of Princess Sophia. Electress and Duchess Dowager of Hanover
and granddaughter of King James I. He is not a Papist and does not
profess the Popish religion—I use the language of the statute in
mentioning a fact which is otherwise irrelevant.
Inasmuch as the statute must
be regarded as in some measure complementary to the Bill of Eights and
the Act of Settlement, it is proper to remind your Lordships that, the
little Duke of Gloucester, Queen Anne's son, having died in 1700, the
joint effect of those two Acts was that upon the death of Queen Anne
without heritable issue, the Crown of England would descend upon the
Electress Sophia and the heirs of her body being Protestants. And it is
not to be doubted that, though in 1705 the Queen was but 40 years of
age, at least the possibility of her early death was not absent from
the minds of her subjects, whether they supported the Hanoverian
succession or inclined openly or covertly to James Edward, now called
"the Old Pretender." In the same year
[458]
there were living six lineal
descendants of the Electress: her eldest son, who became King George I,
her second son, Maximilian William, her third son, Ernest Augustus,
Duke of York, her grandchildren, the children of George I, George who
became George II, and Sophia Dorothea, and her grandson Frederick
William, the son of her daughter Sophia Charlotte and Frederick I, King
of Prussia.
It is proper, too, to have in
mind what was the state of the law in regard to naturalization in the
year 1705. By the common law only those persons who were born on
English soil were subjects of the English Crown, nor was there, until a
much later date, namely, the passing of the Aliens Act, 1844, any
general Act enabling aliens to be naturalized. But from early times,
apart from denization by letters patent with which we are not here
concerned, special Acts of Parliament were passed conferring the status
of natural born subjects upon individuals or more or less closely
defined classes of individuals. Of the later Acts an example may be
found in the statute of 15 Charles 2, c. 15, which enabled all aliens
setting up certain specified trades in this country to enjoy all
privileges whatsoever as the natural born subjects of the realm. No Act
was brought to the notice of the House which purported to confer such
status upon persons as yet unborn, whether or not they were born on
English soil or took the Oath of Allegiance to the Crown of England.
I will refer to one other
aspect of the historical background and I do so because particular
reliance was placed upon it by the Attorney-General. By an Act 7 Jac.
1, c. 2 of 1609, entitled
An Act that all such as are to
be naturalized, or restored in Blood, shall first receive the Sacrament
of the Lord's Supper, and the Oath of Allegiance and the Oath of
Supremacy," it as provided as follows: "Forasmuch as the Naturalizing
of Strangers, and restoring to Blood Persons attainted, have been ever
reputed Matters of mere Grace and Favour, which are not fit to be
bestowed upon any others than such as are of the Religion now
established in this Realm; Be it therefore enacted by the King's Most
Excellent Majesty, the Lords Spiritual and Temporal, and the Commons,
in this present Parliament assembled, That no Person or Persons, of
what Quality, Condition, or Place soever, being of the Age of Eighteen
Years or above, shall be naturalized or restored in Blood, unless the
said Person or Persons have received the Sacrament of the Lord's Supper
within One Month next before any Bill exhibited for that Purpose, and
also shall take the Oath of Supremacy,
[459]
and the Oath of Allegiance, in
the Parliament House, before his or her Bill be twice read: And for the
better effecting of the Premises, Be it further enacted by the
Authority aforesaid, That the Lord Chancellor of England, or Lord
Keeper of the Great Seal for the Time being, if the Bill begin in the
Upper House, and the Speaker of the Commons House of Parliament for the
Time being, if the Bill begin there, shall have Authority at all Times
during the Session of Parliament, to minister such Oath and Oaths, and
to such Person or Persons, as by the true Intent of this Statute is to
be ministered. This Act to take place from and after the End of this
present Session of Parliament."
It was the existence of this
Act, whose purpose was plain upon its face, that made it necessary to
pass an Act preliminary to that which we have to consider. It was an
Act of 4 Anne, c. 1, of 1705, and was entitled: " An Act for exhibiting
a Bill in this present
Parliament for naturalizing the Most Excellent Princess
Sophia, Electress and Duchess Dowager of Hanover, and the Issue of Her
Body." I set it out in full:
" An Act for exhibiting a Bill
in this present Parliament for naturalizing the Most Excellent Princess
Sophia, Electress and Duchess Dowager of Hanover, and the Issue of her
Body.
" WHEREAS the Most Excellent
Princess Sophia, Electress and Duchess Dowager of Hanover, and the
Issue of Her Body. are to be naturalized, and by reason of their being
beyond the Seas, they cannot qualify themselves in order
thereto, according to the Act made in the seventh Year of the Reign of
King James the First, which requires every Person to receive the
Sacrament of the Lord's Supper, within one Month before any Bill for
Naturalization be exhibited, and also take the Oaths of Supremacy and
Allegiance in the Parliament House, before His or Her Bill be twice
read: Be it enacted by the Queen's Most Excellent Majesty, by and with
the Advice and Consent of the Lords Spiritual and Temporal, and the
Commons, in this present Parliament assembled, and by the Authority of
the same, That a Bill for the Naturalization of the said Most Excellent
Princess Sophia. Electress and Duchess Dowager of Hanover, and the
Issue of Her Body, shall and may be exhibited and brought into this
present Parliament, and twice read; any Law, Statute, Matter, or Thing
whatsoever to the contrary notwithstanding."
Two expressions in this Act
deserve notice. First, the expression " the Issue of Her Body," that is
of the body of the Princess
[460] Sophia, is used once in the
title, once in the preamble and once in the enacting part. Secondly, in
the preamble the reason for the Act is stated in the
words " by reason of their being beyond the Seas." If it was our task,
as it is not, to construe this Act, it might well be that the
generality of the words " Issue of Her Body " would be held to be
limited to those who were at the date of the Act " beyond the
Seas " and not to include persons then unborn. Upon this I express no
opinion, for, whatever might be the intention of Parliament to be
gleaned from the earlier Act, it is clear that a different and wider
intention inspired the later one and it is only from the consideration
of its language that it can be determined how different and how much
wider was its intention.
So I come to the statute 4 Anne, c. 4, and for convenience set it
out in full:
[His Lordship read the Act and
continued: ] The Act having been set out in full, the rival contentions
may now be stated. For the respondent it is contended that he is a
person answering to the description issue of the body of the Princess
Sophia, a person lineally descending from her and " hereafter born,"
that is, born after the passing of the Act, and that he is therefore
within the scope of the enacting provision and is entitled to be
deemed, taken and esteemed a " natural born subject of this Kingdom."
It cannot be denied that this contention accords with the prima facie
meaning of the enacting words. For the Attorney-General, on the other
hand, it was contended that the generality of those words must be
restricted to persons born in the lifetime of Queen Anne, such a
restriction being imposed as a matter of construction of the statute by
a consideration of the context in which the words were found. And by "
context" he meant both the historical and political background to which
I have referred and the state of the relevant law as well as the verbal
context of the Act itself, including its preamble. In particular he
relied on the purpose of the Act as stated in the preamble that the
persons to be naturalized should be encouraged to become acquainted
with the laws and constitutions of the Eealm and, most strongly, on the
conjunction (also in the preamble) of the words " they " and " in Your
Majesty's Life Time." Here, it was urged, was an expression of the
intent of Parliament clear enough to restrict the generality of the
enacting words.
My Lords, the contention of the Attorney-General was, in the first
place, met by the bald general proposition that where the
[461] enacting part of a statute is
clear and unambiguous, it cannot be cut down by the preamble, and a
large part of the time which the hearing of this case occupied was
spent in discussing authorities which were said to support that
proposition. I wish at the outset to express my dissent from it, if it
means that I cannot obtain assistance from the preamble in ascertaining
the meaning of the relevant enacting part. For words, and particularly
general words, cannot be read in isolation: their colour and content
are derived from their context. So it is that I conceive it to be my
right and duty to examine every word of a statute in its context, and I
use " context " in its widest sense, which I have already indicated as
including not only other enacting provisions of the same statute, but
its preamble, the existing state of the law, other statutes in pari
materia, and the mischief which I can, by those and other legitimate
means, discern the statute was intended to remedy.
Since a large and
ever-increasing amount of the time of the courts has, during the last
three hundred years, been spent in the interpretation and exposition of
statutes, it is natural enough that in a matter so complex the guiding
principles should be stated in different language and with such varying
emphasis on different aspects of the problem that support of high
authority may be found for general and apparently irreconcilable
propositions. I shall endeavour not to add to their number, though I
must admit to a consciousness of inadequacy if I am invited to
interpret any part of any statute without a knowledge of its context in
the fullest sense of that word.
An important branch of the
Attorney-General's argument rested on the alleged absurdity and
inconvenience which must result if no restriction is imposed on the
general words—a result, he said, which must be presumed to have been
foreseen in 1705. This is dangerous ground. A double assumption is
made, the first, that Parliament foresaw the possibility of what has in
fact happened, the second, that foreseeing it they would have thought
it inconvenient or absurd. On the Attorney-General's own
interpretation, in addition to the six descendants of the Princess
Sophia, including the Crown Prince of Prussia, living at the date of
the Act, an unknown number might be born in the lifetime of Queen Anne
who would be naturalized under it. However absurd we today may think an
interpretation which would lead to most of the Royal families of Europe
being British subjects, I cannot say that in 1705 there was such
manifest absurdity as to entitle one to reject it. Nor can I say that
in those years of religious,
[462] dynastic and political
conflict Parliament would not have enacted it at the risk of its
seeming absurd. Nor do I see any reason for limiting the general words
to persons who upon the Queen's death would, under the Act of
Settlement, immediately succeed to the throne of England.
I reject, therefore, the
argument in favour of restricting the meaning of the enacting words so
far as it is based on any other consideration than that of the words of
the statute itself. I turn, then, to the preamble. As I have already
said, apart from the reason for the statute which is there stated, the
argument' rests on nothing more than the conjunction of the
words " they " and " in Your Majesty's Life Time." It is urged that
only those could be naturalized in Queen Anne's lifetime who were bom
in her lifetime, and this is a self-evident proposition, at least, if
the word " naturalized " means the same thing as the words which
follow—" and be deemed, taken and esteemed natural born subjects of
England." But, my Lords, before I reach these words I have already
learned from the earlier part of the preamble that I am concerned with
the Princess Sophia and the issue of her body and all persons lineally
descending from her. I know that at least some persons then unborn are
to be naturalized by the Act and I proceed to the enacting part with a
doubt already implanted in my mind that the expression " they, in Your
Majesty's life time . . . should be naturalized " is a clumsy one which
may mean no more than that " an Act should be passed in Your Majesty's
Life Time for naturalizing them." I read on and find not only the same
general words repeated but emphasis lent to them by the addition of the
words " born or hereafter to be born." Nor can I ignore that the
omission of any restricting words is of great significance. Now, I do
not suggest that it is impossible that words of this generality should
be restricted by their context. But if I may do so without adding to
the number of conflicting generalizations, I would say that for such
restriction a compelling reason must be found. Perhaps an obvious
example may be found outside an Act in a principle of comity which
confines its operation within the territorial jurisdiction of the
enacting State: or it may be found in a repugnancy between the
immediate enacting provisions and other provisions of the same Act. But
where it is in the preamble that the reason for restriction is to be
found, the difficulty is far greater. For, as has so often been said,
Parliament may well intend the remedy to extend beyond the immediate
mischief: the single fact therefore that the enacting words are more
general than the preamble
[463] would suggest is not enough.
Something more is needed, and here lies the heart of the problem. On
the one hand, the proposition can be accepted that " it is a settled
rule that the preamble cannot be made use of to control the enactments
themselves where they are expressed in clear and unambiguous terms." [[1897]
2 Q.B. 242, 299; 13 T.L.R. 281] I quote the words of
Chitty L.J., which were cordially approved
by Lord Davey in Powell v. Kempton Park Racecourse Co.
Ltd.
[[1899] A.C. 143, 185; 15 T.L.R. 266] On
the other hand, it must often be difficult to say that any terms are
clear and unambiguous until they have been studied in their context.
That is not to say that the warning is to be disregarded against
creating or imagining an ambiguity in order to bring in the aid of the
preamble. It means only that the elementary rule must be observed that
no one should profess to understand any part of a statute or of any
other document before he had read the whole of it. Until he has done so
he is not entitled to say that it or any part of it is clear and
unambiguous. To say, then, that you may not call in aid the preamble in
order to create an ambiguity in effect means very little, and, with
great respect to those who have from time to time invoked this rule, I
would suggest that it is better stated by saying that the context of
the preamble is not to influence the meaning otherwise ascribable to
the enacting part unless there is a compelling reason for it. And I do
not propose to define that expression except negatively by saying (as I
have said before) that it is not to be found merely in the fact that
the enacting words go further than the preamble has indicated. Still
less can the preamble affect the meaning of the enacting words when its
own meaning is in doubt. With these principles, if they can be called
principles, in mind, I turn once more to the statute we have to
consider and I find, first, that it is only the narrower scope of the
objective as stated in the preamble which is relied on to restrict the
emphatic generality of the enacting words, and secondly, that it is at
least a matter of doubt what is the scope of the preamble itself. For,
as I have already indicated, the clumsy phrase " they, in Your "
Majesty's life time . . . should be naturalized " is susceptible of
meaning that an Act should be passed in the lifetime of the Queen for
the naturalization of her descendants born and unborn. In these
circumstances I must reject also the argument of the Attorney-General
which is based on the context of the preamble and give to the enacting
words " the issue of her body and all [464] "
persons lineally descending from her, born or hereafter to be born
" their prima facie and literal meaning.
I ought to mention, because
the Attorney-General attached a modest weight to it, an Act of the
fourth year of George III, whereby the then Prince of Brunswick
Luneburg was naturalized as a British subject. He was in fact a lineal
descendant of the Princess Sophia and the Act was unnecessary if the
respondent's construction of the Act of 4 Anne is right, for he was
already a British subject. But I cannot allow this matter to weigh with
me at all. I do not know why the Act was passed, whether because the
earlier Act had, after 60 years, been forgotten, or because a doubt had
been expressed and ex majore cautela it was desired to pass a special
Act, or because Parliament flatly misinterpreted the earlier Act. I
cannot regard it as a legislative interpretation of the earlier Act
operating to give it a meaning which it would not otherwise bear.
Finally, I must refer to a
question which has caused me some embarrassment. It is natural that
this case, with its striking and unusual features, should arouse much
public interest, and it happens that in the consequent discussion of it
a point has been taken which was not debated in the courts below. It is
that, whatever might have been the result if the question remained as
it was before the union of England and Scotland, an Act of the English
Parliament passed in the year 1705 could not be effective to confer the
status of a British subject upon a person born on foreign soil after
the Act of Union. This point, which I state, perhaps badly and
imperfectly, I thought it right to bring to the notice of the
Attorney-General and of counsel for the respondent. The
Attorney-General, having considered the point, came to the conclusion
that it was not a good one. He briefly explained his reasons and, in
effect, declined, as he was well entitled to do, to press it on your
Lordships. In those circumstances it was clearly not possible to pursue
the matter further and counsel for the respondent was not invited to
deal with it. There it must rest. The House makes no pronouncement upon
it.
In the result, I am of opinion that the appeal should be dismissed
and I move your Lordships accordingly.
Lord Normand.
My Lords, the
only question for adjudication in this appeal is whether the effect of
the Act 4 Anne, c. 4, was to naturalize, subject to the exclusion
provided for by the second section, those children and lineal
descendants of the Electress Sophia who were alive at the passing of
the Act and those who
[465] were born thereafter but
before the death of Queen Anne, or whether the effect was to
naturalize, subject to the same exclusion, all persons lineally
descending from the Electress alive at the passing of the Act or born
at any time thereafter. The question is one of interpretation, and it
is not in doubt that the Act must be construed as it would have been
construed immediately after it became law.
The Act itself and the related
Acts, 7 Jac. 1, c. 2 and 4 Anne, c. 1, have already been brought
sufficiently to the notice of the House, and I need not recite them
here. On either of the constructions put forward, the effect of the
Act, both intended and actual, was to confer the privileges and
obligations of naturalization on persons neither resident within nor
expected to reside within the realm without their having any voice on
the matter and without requiring that they should take the Oath of
Allegiance. On the other hand, naturalization was conferred only on
persons who might in conceivable circumstances succeed to the throne
under the Act of Settlement. The Act is unique in these respects and
the scope of its operation must not, in my opinion, be extended beyond
those who are manifestly covered by the enacting words.
In order to discover the
intention of Parliament it is proper that the court should read the
whole Act, inform itself of the legal context of the Act, including
Acts so related to it that they may throw light upon its meaning, and
of the factual context, such as the mischief to be remedied, and those
circumstances which Parliament had in view, including in this case the
death of the last of Queen Anne's children and the state of the family
of the Princess Sophia. It is the merest commonplace to say that words
abstracted from context may be meaningless or misleading.
The issue in the appeal is
whether the words " the issue of her body, and all persons lineally
descending from her, born or hereafter to be born " are capable of
suffering a limitation of time which might have been expressed by
adding to them such words as " during the life of Queen Anne." The
issue may be more closely defined. Much of the argument of the
Attorney-General rested on the basis that the enacting words were
general and that general words are more susceptible of control by
context than specific words, and he cited authorities in support of
this proposition. If the words in the present case had been " the issue
of her body, and all persons lineally descending from her " alone, the
authorities which the Attorney-General referred to
[466] would have been material.
Here, however, it is the words qualifying these general words by
reference to the time of birth that are important, and it is their
meaning that we have to ascertain. Before attempting to solve this
question, it will be proper to consider the reasons, derived from the
context of attendant circumstances or of law. which on the
Attorney-General's argument are relevant to influence the construction
of the enacting words. The Attorney-General maintained that the
naturalizing of all future descendants of the Princess Sophia was
inherently so absurd that Parliament cannot be supposed to have
intended it. I can dispose of this point at once by saying that I agree
with the observations upon it of Homer L.J. in the Court of Appeal. The
Attorney-General then relied on the terms of the Act 4 Anne, c. 1.
which paved the way for the Act now under construction, and provided
for the introduction of a Bill naturalizing the Princess Sophia and the
issue of her body alive at its date only. I think that the Act 4 Anne,
c. 1, does not assist the Attorney-General. for the reasons stated by
Romer L.J. The lack of issue of Queen Anne and the state of the family
of the Princess Sophia throw no light on construction. It is true that
if the Act naturalized only those descendants born before Queen Anne's
death, the successor to Queen Anne and the successor to her successor
would probably have been among those naturalized, but Parliament might
well have intended to go further and to naturalize all who under the
Act of Settlement might in certain events, probable or not. succeed to
the throne.
The Attorney-General placed
the main weight of his argument on the preamble of the Act 4 Anne, c.
4. The preamble is, however, itself in need of construction. After a
reference to the Act of Settlement and some compliments addressed to
Queen Anne it continues " and to the end the said Princess Sophia . . .
" and the issue of her body, and all persons lineally descending from
her, may be encouraged to become acquainted with the laws and
constitutions of this realm, it is just and highly reasonable, that
they, in your Majesty's life time . . . should be naturalized, and be
deemed, taken, and esteemed natural-born subjects of England." It is to
be noted that the parties agreed that the sentence beginning " and be
deemed " and ending with " subjects of England " is merely a
description in common form of the status conferred by naturalization.
The important words are " they, in Your Majesty's life time should be
naturalized." These words seem on the face of them to be a clumsy
inversion of the words " They should be naturalized in Your Majesty's
life
[467] time," and so far there is
nothing to suggest that "naturalized " has not its ordinary meaning,
viz., " admitted to the rights of a "natural born subject." Such an
interpretation receives some support from the expressed motive that the
persons to be naturalized would be encouraged to become acquainted with
the laws and constitutions of the realm. This would be a not
unreasonable expectation for a limited time and a limited number of
persons, but it is scarcely probable that Parliament should expect all
future descendants of the Princess Sophia, however remote from any
prospect of succeeding to the throne, to be encouraged to apply
themselves to the study of English laws and constitutions. The
respondent's suggestions that the words " in Your Majesty's life time "
merely mean " now " and that "naturalized " means "have an Act passed
providing for their naturalization " or the like, do considerable
violence to the language used by Parliament. Moreover, the word " now,"
if it were substituted, would be otiose, and the words "and be deemed,"
etc., fit "naturalized" if it is used in its ordinary sense, but are
awkward if " naturalized " is given the meaning which the respondent
would ascribe to it. I would therefore provisionally accept the
construction of the preamble put forward by the Attorney-General,
always bearing in mind that the preamble is part of the statute, and
that no part of a statute can be regarded as independent of the rest.
When there is a preamble it is
generally in its recitals that the mischief to be remedied and the
scope of the Act are described. It is therefore clearly permissible to
have recourse to it as an aid to construing the enacting provisions.
The preamble is not, however, of the same weight as an aid to
construction of a section of the Act as are other relevant enacting
words to be found elsewhere in the Act or even in related Acts. There
may be no exact correspondence between preamble and enactment, and the
enactment may go beyond, or it may fall short of the indications that
may be gathered from the preamble. Again, the preamble cannot be of
much or any assistance in construing provisions which embody
qualifications or exceptions from the operation of the general purpose
of the Act. It is only when it conveys a clear and definite meaning in
comparison with relatively obscure or indefinite enacting words that
the preamble may legitimately prevail. The courts are concerned with
the practical business of deciding a lis, and when the
plaintiff puts forward one construction of an enactment and the
defendant another, it is the court's business in any case of some
difficulty, after informing itself of what I have called the legal and
factual context including the
[468] preamble, to consider in the
light of this knowledge whether the enacting words admit of both the
rival constructions put forward. If they admit of only one
construction, that construction will receive effect even if it is
inconsistent with the preamble, but if the enacting words are capable
of either of the constructions offered by the parties, the construction
which fits the preamble may be preferred.
Now, I am of opinion that we
have in the present instance a simple case where the enacting words are
capable of the respondent's construction and not reasonably capable of
the appellant's construction. The question is whether the words " all
persons " lineally descending from her " (the Princess Sophia) " born
or hereafter to be born " can reasonably be construed as subject to a
limitation of time, such as the date of Queen Anne's death. Though it
may be an exaggeration to say that no words can be conceived more apt
to exclude such a limitation, they are clear enough. I find it
difficult to think that if a limitation to the life of Queen Anne had
been intended it would not have been expressed. The words " born or
hereafter to be born " appear here for the first time with the evident
purpose of clarifying the descriptive words " all persons lineally
descending from her." Unless " hereafter " means " at any time
hereafter " the words " born or hereafter "to be born " have no
clarifying effect whatever and would be better omitted. If they are to
receive any effect they are in the absence of compelling context
inconsistent with any terminus ad quern short of the failure of all
descendants. The words are not only clear, they are also direct,
whereas it is only by inference that the preamble seems to limit the
operation of the Act to those born before Queen Anne's death. There is
no clumsiness in the wording to raise a doubt whether they mean what
they seem to mean. Nothing but the most compelling context would
justify a construction radically altering the plain meaning of the
enacting words by reading into them a qualification such as "in Her
Majesty's life time." The preamble has no such compulsive force. It may
be possible to read the preamble in the sense put forward on behalf of
the respondent, or it may be said that the enacting words go beyond the
preamble. For the purposes of the present case it matters not which.
I am therefore of opinion that
the appeal should be dismissed. I agree with what my noble and learned
friend on the Woolsack has said on the possible bearing of the Act of
Union on the operation of the Act 4 Anne, c. 4, and I express no
opinion upon it.
[469]
Lord Morton
of Henryton.
My
Lords, only one question arises on this appeal; what is the meaning of
a few words in the enacting portion of the short statute 4 Anne, c. 4,
of 1705. These words are: "Be it enacted . . . that the said Princess
Sophia, Electress and Duchess Dowager of Hanover, and the issue of her
body, and all persons lineally descending from her, born or hereafter
to be born, be and shall be, to all intents and purposes whatsoever,
deemed, taken, and esteemed natural-born subjects of this Kingdom, as
if the said Princess, and the issue of her body, and all persons
lineally descending from her, born or hereafter to be born, had been
born within this realm of England."
The argument centres round the
words, twice repeated, " the issue of her body, and all persons
lineally descending from her, born or hereafter to be born." My Lords,
these words, standing by themselves, are surely capable of only one
meaning. They include everyone, whenever born, who is a lineal
descendant of the Princess Sophia. This was recognized by Vaisey J. and
by all the members of the Court of Appeal. Vaisey J. [[1955]
Ch. 440, 444; [1955] 1 All E.R. 746] referred
to these words as " the apparently clear and unambiguous terms of the
enacting provisions of the Act of Anne," and later referred to
them
[[1955] Ch. 440, 451] as " unqualified and plain in their
meaning, when standing alone." The
Attorney-General, however, contended that the class described in these
words is limited to persons born within the lifetime of Queen Anne, who
died only nine years after the Act was passed. He relied principally
upon the words of the preamble to the Act, which have already been
read, but he also placed some reliance upon the statute 4 Anne, c. 1,
of 1705. He further contended that the construction put forward on
behalf of the respondent led to an absurd result.
Other matters mentioned by the
Attorney-General did not, I think, impress your Lordships, and I do not
find it necessary to refer to them.
My Lords, to my mind the
Attorney-General is faced, at the outset, with one great difficulty.
His argument really amounts to an invitation to your Lordships to
perform a surgical operation on the enacting part of the statute by
inserting, immediately after the words " born or hereafter to be born "
the words " in Your Majesty's life time." Now, if the legislature had
intended
[470] to limit the class of persons
to be naturalized, I can think of no reason why these words should not
have been inserted. These very words, " in Your Majesty's life time,"
had already been used in the preamble, immediately before the enacting
part, and it would have been the most natural thing in the world to
repeat them in the enacting part, if the legislature had intended so to
limit the class. Instead of so doing, the legislature gave a strong
indication of a contrary intention. We find in the preamble a reference
to " the said Princess Sophia . . . and the issue of her "body, and all
persons lineally descending from her"; and in the enacting part, a few
lines later, the same words are repeated with the addition of the words
" born or hereafter to be born." Surely, my Lords, these words can only
have been added in order to make it abundantly clear that all
descendants of the Princess Sophia, whenever born, were to be
naturalized. In the face of these words, I find it hard to imagine any
context, or any circumstances, which should persuade your Lordships to
perform the surgical operation already mentioned, and the matters upon
which the Attorney-General relied fall far short of persuading me to
perform it. I turn first to his submission based upon the following
words in the preamble: "And to the end the said Princess Sophia,
Electress and Duchess Dowager of Hanover, and the issue of her body,
and all persons lineally descending from her, may be encouraged to
become acquainted with the laws and constitutions of this realm, it is
just and highly reasonable, that they, in Your Majesty's life time
(whom God long preserve) should be naturalized, and be deemed, taken,
and esteemed natural-born subjects of England." The Attorney-General
submitted that these words show the intention of Parliament that only
those descendants of the Princess Sophia who were born in the lifetime
of Queen Anne were to be naturalized. My Lords, I do not so read the
words. I think that the words " that they, in Your Majesty's life time
. . . should be naturalized," etc. do not operate to limit the class
but merely state the view that the naturalization should be effected by
an Act passed in Queen Anne's lifetime. This is, to my mind, a more
natural meaning of the words and I do not think it is necessary to make
any addition to, or transposition of, the words used in order to give
them that meaning. Moreover, there are, I think, some strong objections
to the construction for which the Attorney-General contends. In the
first place, it would be strange indeed if Parliament, having already
stated its object to
[471]
be that the issue of the body
of the Princess Sophia and all persons lineally descending from her
should be encouraged to become acquainted with the laws and
constitutions of England, should immediately go on to limit the class
of persons to be naturalized, for this very purpose, to persons born in
the lifetime of Queen Anne. Secondly, if this passage had been intended
to bear the meaning attributed to it by the Attorney-General, surely
the words " in Your Majesty's Life Time " would have been linked with
the description of the class and not with the words "should be
naturalized." The Attorney-General sought to gain support from the
words " and be deemed, taken and esteemed "natural born subjects of
England," but it seems to me that these words merely state the effect
of naturalization.
I would not venture to say, my
Lords, that the construction of the preamble which appeals to me is the
only possible construction, but it seems to me equally impossible to
say that the construction for which the Attorney-General contends is
the only possible construction. The preamble is, to put it at its
highest in favour of the Attorney-General, an ambiguous document, and
as
such it cannot in any way control the words of the enacting part. In
fact, if the preamble were clear one way and the enacting part were
equally clear the other way, there can be no doubt that the latter must
prevail.
The argument based on the Act
4 Anne, c. 1, of 1705 is to this effect. This Act only refers to
persons living at the time when it was enacted. This is shown by the
words " by reason of their being beyond the seas," since no person
could be beyond the seas unless he or she were alive. This was the Act
which paved the way to the Act now under consideration, and your
Lordships should place some limit as to time of birth upon the class of
persons covered by the latter Act. My Lords, I can find no force in
this argument. It is clear, from any view of the preamble to the latter
Act, that it extended at least to persons who came into existence
between the passing of the Act and the death of Queen Anne, and I would
adopt the words of Romer L.J. in the Court of Appeal [[1956]
Ch. 188, 218; sub nom. H.R.H. Prince Ernest Augustus of
Hanover v. Attorney-General [1955] 3 All E.R. 647]:
"...
as, on any view, the legislature departed in the second Act from the
very limited scope which was envisaged by the recital in the first, the
only question, as it seems to me, is as to the extent of such
departure. I therefore find no assistance, in construing the second
Act, from the language of the first."
[472]
As to the argument that the
enacting words are absurdly wide in their scope if they are given their
natural meaning, it must be borne in mind that the matter must be
viewed from the standpoint of those who were legislating in the year
1705, and I would again quote from the judgment of Romer L.J. [[1956]
Ch. 188, 218]:
" I see nothing necessarily or inherently absurd in the conception that
Parliament was intending to provide in 1705 that all those upon whom
the British Crown might subsequently devolve by virtue of the Act of
Settlement should become British citizens at birth; and Parliament was
presumably alive to the fact that, if the class of persons affected by
the Act should become eventually too large, it could be closed by
subsequent legislation. It appears to me that a far greater degree of
absurdity than that which has been suggested in this case is required
to justify the court in departing from clear enacting language,
assuming that absurdity does, in itself, afford ground for any such
departure." If the enacting words are to bear their natural meaning the
respondent must succeed, for it is admitted that he is a lineal
descendant of the Electress Sophia and that he is and at all times has
been a Protestant, so that he is not excluded by the proviso to the Act
now under consideration.
In my view, the Court of Appeal arrived at the correct conclusion
and this appeal should be dismissed.
I agree with the observations of my noble and learned friend on the
Woolsack as to the Act of Union.
Lord Tucker.
My Lords, I am in
complete agreement with the opinion that has been delivered by my noble
and learned friend on the Woolsack and have nothing to add thereto.
Lord Somervell
of Harrow.
My
Lords, your Lordships were referred to a number of statements in
speeches or judgments dealing with the construction of statutes.
There are, I think, two
distinct subject-matters dealt with in the passages to which reference
was made. In the first place, it was necessary to decide what can or
cannot be invoked and relied on by either party in support of its case
outside the words of the Act itself. It seems now clear that the "
intent of the Parliament " which passed the Act " is not to be gathered
from the parliamentary history of the statute. The mischief against
which the [473] Act is directed and perhaps,
though to an undefined extent, the surrounding circumstances can be
considered. Other statutes in pari materia and the state of the law at
the time are admissible. Subsequent legislation, if it proceed upon an
erroneous construction of previous legislation, cannot alter that
previous legislation: but if there be any ambiguity in the earlier
legislation then the subsequent legislation may fix the proper
interpretation which is to be put upon the earlier." (Lord Sterndale in
Cape Brandy Syndicate v. Inland Revenue Commissioners,
[[1921] 2 K.B. 403, 414; 37 T.L.R. 402] cited and
approved by Lord Buckmaster in Ormond Investment Co. Ltd.
v. Belts. [[1928] A.C. 143, 156])
These are properly called
rules. They apply in all cases to determine what can and cannot be
referred to and relied on. The above list is not intended to be either
exhaustive or precise but to mark the distinction between rules as to
admissibility and the solution of the problems which arise when one
turns to the actual words of the Act.
A question of construction
arises when one side submits that a particular provision of an Act
covers the facts of the case and the other side submits that it does
not. Or it may be agreed it applies, but the difference arises as to
its application. It is unreal to proceed as if the court looked first
at the provision in dispute without knowing whether it was contained in
a Finance Act or a Public Health Act. The title and the general scope
of the Act constitute the background of the contest. When a court comes
to the Act itself, bearing in mind any relevant extraneous matters,
there is, in my opinion, one compelling rule. The whole or any part of
the Act may be referred to and relied on. It is, I hope, not
disrespectful to regret that the subject was not left where Sir John
Nicholl left it in 1826. " The key to the opening of every law is the
reason and spirit of the law—it is the ' animus imponentis,' the
intention of the law-maker, expressed in the law itself, taken as a
whole. Hence, to arrive at the true meaning of any particular phrase in
a statute, that particular phrase is not to be viewed, detached from
its context in the statute: it is to be viewed in connexion with its
whole context— meaning by this as well the title and preamble as the
purview or enacting part of the statute." (Sir John Nicholl in Brett
v. Brett. [(1826) 3 Add. 210, 216] He
proceeds in the next sentence to attach in
that case special importance to the preamble. We were referred to other
[474] statements minimizing the importance of
the preamble. For example,
Buller J. in Crespigny v. Wittenoom [(1792) 4
Term Rep. 790, 793] ):
" I agree that the preamble cannot control the enacting part of a
statute, which is expressed in clear and unambiguous terms. But if any
doubt arise on the words of the enacting part, the preamble may be
resorted to, to explain it." The word " unambiguous " must mean
unambiguous in their context. The words " a marriage " are not ex facie
ambiguous. In one statutory context they mean a marriage celebrated in
England and in another a marriage wherever celebrated. Many local Acts
have their geographical limits set out in their preambles and title. I
take an example at random: 8 & 9 Vict. c. 22, is " An Act
to
enable the Commissioners of Greenwich Hospital to widen and improve
Fisher Lane, in Greenwich." If that Act had contained in the enacting
provisions words which in isolation might have applied outside
Greenwich, the preamble would control their meaning.
If, however, having read the
Act as a whole, including the preamble, the enacting words clearly
negative the construction which it is sought to support by the
preamble, that is an end of it. It is also said that the court cannot
look at a preamble to find an ambiguity. Lord Davey's statement in Powell
v. Kempton Park Racecourse Co. Ltd. [[1899] A.C.
143, 185] is
relied on. He said " that you must not create or imagine an ambiguity
in order to bring in the aid of the preamble." I find it difficult to
believe that Lord Davey was intending to create an exception to the
rule that an Act, like other documents, must be considered as.a whole.
Preambles differ in their scope and consequently in the weight, if
any, which they may have on one
side or the other of a dispute. There can be no rule. If in an Act the
preamble is a general and brief statement of the main purpose, it may
well be of little, if any, value. The Act may, as has been said, go
beyond or, in some respects, fall short of the purpose so briefly
stated. Most Acts contain exceptions to their main purpose, on the
meaning of which such a preamble would presumably throw no light. On
the other hand, some general and most local Acts have their limits set
out in some detail. I will not hazard an example,, but there may well
be cases in which a section, read with the preamble, may have a meaning
different from that which it would have if there were no preamble. A
court will, of course,
[475] always bear in mind that a
preamble is not an enacting provision, but I think it must have such
weight as it can support in all contests as to construction.
Coming to the Act, I therefore
accept the appellant's submission that the preamble and enacting words
should be read before deciding whether the latter are reasonably
capable of the meaning which the appellant seeks to place upon them. I
do not think they are. The words " all persons lineally descending from
her, born or hereafter to be born," in my opinion, clearly negative any
intention to limit the effect of the Act to those born in Queen Anne's
lifetime. Whether the words are regarded as general or specific, they
could not have been used if the Act was to be limited to those
born in Queen Anne's lifetime.
The preamble is perhaps
ambiguous, but the phrasing would, I think, have been different if the
intention had been that submitted by the appellant. If one goes through
the words, having in mind an intention of naturalizing, in addition to
those now living, only those future descendants born in Queen Anne's
lifetime, the words " all persons lineally descending from her " would
clearly have been so qualified. Instead of the word " they " one would
have had some such words as " those now living and those born hereafter
in Your Majesty's lifetime." There is also, I think, force in the
argument for the respondent that " naturalized " refers to the Act of
Parliament, and the later words express its effect. This is supported
by the fact that the word "naturalized" does not occur in the enacting
words. It is sufficient if the preamble is ambiguous. On consideration,
I am clear that it does not bear the meaning submitted by the appellant.
I have nothing I wish to add on the other points raised and I would
dismiss the appeal.
Appeal dismissed.
Solicitors: Treasury Solicitor; Farrer & Co.
F. C.
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