File HO 45/23509
Succession to the Throne When Sisters May Be Co-Heirs.By THE LONDONER.
Evening Standard, Aug. 22, 1930.
Our King lives; God save him! No gossiping tongue has been whispering that the throne is like to be vacant this year or next year. There would seem to be a kind of little treason in talking of the King's heirs and who should follow him. .
As for his son. the Prince of Wales, did you ever see a young man with a better hope for a long life than this Prince who rides and flies and swims with such a stout heart?
Yet there are times when even the loyallest subject may speak of the royal pedigree and ask where, if this or that befall, shall go the rights of the succession to the throne.
We are not clever at such things: it is no wonder that our ancestors fell to argument, and then to killing one another, in the cause of York or Lancaster.
But let us talk now of what may be in the years to come. There was debate of this sort when the Duke of Clarence was suddenly dead. His brother, Prince George, had fallen sick. Prince George was then without wife or child. Everybody then was asking who, if Prince George should die, would be next in direct succession to the Crown.
Some people guessed and guessed wrong; there was a fancy that things might go as they went in the old kingdom of France, where the heir male would succeed.
But those were muddle-headed people who had forgotten by what right Queen Victoria had been crowned. The cleverer people guessed that Prince George's heir would be the Duchess of Fife, the eldest of his sisters. A better guess, that, than the guess of those who forgot Queen Victoria. But it was not the last word in guessing.
There was Mr. John Horace Round, a bitter antiquary in debate, but a very keen-witted gentleman who would take nobody else's tale for gospel. The Duchess of Fife was indeed the eldest of the daughters of Edward, Prince of Wales. By what warrant, asked Mr. Round, should the eldest daughter be chosen ?
Everybody could answer him that this was a matter of common sense, The eldest son is heir, then why not the eldest daughter when it comes to choosing one of the daughters? Would you take the second daughter or the third?
If anybody listened to Mr. Round they took his words for an antiquary's nonsense.
Yet Mr. Round was a sharp-witted antiquary. We will go back to the beginning of things and find how the crown was settled by Act of Parliament.
The last Act of Succession was that made by King William III., reigning as king alone, after the death of Queen Mary.
Queen Mary was dead, a childless Queen. It was by the Act of King William's Parliament that her sister Anne followed him. She also left no child. After her should come " the most excellent Princess Sophia, and the heirs of her body being Protestants."
By virtue of that Act, King George is now our King. All sovereigns after him must be heirs of the body of that most excellent Sophia, unless a new Act comes to be passed.
Until this time all has gone fairly. Prince George became King George the Fifth, whom God preserve. There is his Queen; there are his children. There was no need for anybody to answer Mr. Round's question about the position of Prince George's sisters.
Nor should there be need now to argue about the children of the Duke of York. Surely the Prince of Wales shall one day be King, and a married King. Count up all the Kings from the Conqueror onwards; you shall find that none was a bachelor save William whom we call Rufus. None but he— and he was a very bad King—unless you must reckon with those two King Edwards who did not come to a man's years.
So the Prince of Wales shall find the right princess in the end.
It is only for argument's sake that we consider the case of the Duke of York. Give us leave to imagine the Prince of Wales dead without a child; the Duke of York dead and leaving two daughters.
Which daughter should be heir to King George and his kingdoms?
Mr. Round's answer was that neither would be sole heir.
The law of the land, which calls the eldest son or the only son an heir, will do as much for one daughter. But it will give no daughter any precedence over her sisters; all sisters are co-heirs together.
If the sisters should be co-heirs of the sovereign no one of them could inherit as heir and be queen.
Surely a new Act of Settlement would be framed in good time. Else, as one might believe, there would be no crowned head in England. It is hard to say what then would become of our law-making while the monarchy was in abeyance.
Better think no more of such puzzling questions. The Prince of Wales is still heir apparent, heir manifest. All will come right in the end.
25th. August, 1930.
Will you kindly let me know if there is any truth in the idea stated in the enclosed press cuttings, that the succession, according to the Act of Succession, would not fall naturally upon Princess Elizabeth, if unfortunately all the other Heirs to the Throne were to die, and that the two sisters if still living would be joint Heiresses ?
Yours very truly,
H.R. Boyd Esq., C.V.O., G.B.E.,
26th August, 1930.
Dear Lord Stamfordham,
Thank you for your letter of August 25th and I return you the two press cuttings in regard to the succession to the Throne which you sent me as I think you may want to keep them. I had already seen the Evening News cutting by the Londoner, who, by the way, is Oswald Barron, and who, as you know, is quite an authority on heraldry and similar subjects. I know him, as I have often met him at the Mint Advisory Committee, and he helped us a good deal in designing the Knights and Baronets Badges.
Anderson and all our pundits on the subject are all away on leave so I can only give you off-hand my personal opinion, for what it is worth. I think that Oswald Barron is wrong and I am much more inclined to agree with the article by Dermot Morrah in today's Daily Mail, of which I send you a copy, though I know nothing of the author, & I think some of his statements are inaccurate.
As I have always understood it the succession to the Throne devolves very much in the same way as the succession to a Barony by Writ, sons being preferred to daughters, with this difference, that there is no abeyance between daughters and the elder daughter takes before the younger. The principle of the descent of the Crown under the Act of Succession seems to be that of an entail on the descendants of the Electress Sophia and on every demise of the Crown the heir to it must be sought in the lineal heir of Sophia, provided such heir is a Protestant. In fact her heir might not be heir to the private estates of the last monarch. If, for example, a sovereign should leave a son and a daughter by a first marriage, and a son by a second marriage, and the son of the first marriage should die without issue, he would be succeeded in the Throne, not by his sister of the whole blood, who would be the heiress of his private estates, but by his brother of the half blood, who would be the lineal heir of the Electress Sophia.
You will understand that I am only giving you now my personal opinion, which is that the analogy of a peerage does not apply. I do not think there is any question of co-heirship between the Princess Elizabeth and her new sister, and I feel pretty sure that as things stand now Princess Elizabeth, under the Act of Succession, would be the lineal heir of the Electress Sophia. However, I do not profess to be any authority on the subject, and it seems to me to depend entirely on the legal interpretation of the wording of the Act of Succession. The actual words used are "heirs of the body" and I think the inference is that lineal heirs are meant..
If there is any real doubt in the matter perhaps the best thing would be a little later on, when the various pundits have returned from their holidays to have the matter fully considered by the Lord Chancellor and the Home Secretary, with the assistance of the Law Officers. If then the whole question cannot he made absolutely clear without possibility of dispute, it would not I think be a very difficult matter to pass a new Act of Succession.
I do not think I can say any more than this at the moment, but if there is any point you would like cleared up immediately, please let me know And I will do my best.
Yours very truly,
(Signed) H. R. BOYD,
The Lord Stamfordham,
G.C.B., G.C.I.E., G.C.V.O.
The Succession to the Crown in the Case of DaughtersMr. Barron's article in the Evening News of 22nd August raises the question whether the law of succession makes provision for the case where a sovereign dies leaving two or more daughters but no son. The general belief is that in such a case the elder daughter succeeds in the same way as an elder son. Mr. Barron, however, questions this, basing himself on an article by the late Mr. Round entitled "The Succession to the Crown" (in "Peerage and Family History" 1901, at p.458 ff.). Mr. Round was a very great authority on antiquarian and peerage questions, but I think there can be no doubt that in this instance his knowledge of peerage law, assisted perhaps by a natural love of contradiction and controversy, led him astray.
The succession is governed by statute (12 and 13 William III, cap.2), under which the Crown "remains and continues to Princess Sophia and the heirs of her body being Protestants". The question at issue turns on the interpretation of the words "heirs of her body". Mr. Round's argument is simply that in peerage cases a limitation to heirs of the body does not give the dignity to the elder of two or more sisters to the exclusion of the others - in other words the peerage falls into abeyance between the co-heiresses - and the same words in an Act governing the succession to the Crown must be construed in the same way as in peerage cases.
I cannot see any sufficient ground for the assumption that because the Crown is an office of honour, a dignity, and indivisible, therefore it is governed by the laws of succession which apply to a peerage. The Crown is not a Peerage, its circumstances and the considerations which apply to it are quite different from those relating to a peerage, and it is governed by a law of succession of its own which is not the same as peerage law and which does recognise the right of an elder sister to succeed in preference to a younger one. I think this can be shown from usage, common law, and Statute law.
(a) Usage.I can find no trace whatever of the existence of any custom, by which the succession to the throne in the case of females followed the same rule as the succession to peerages. It is hardly too much to say that there is no evidence that such an idea ever occurred to any one, lawyer or layman, until Mr. Round suggested it.
There have been several occasions when the Crown would or might have gone into abeyance between daughters or the descendants of daughters if abeyance had been possible in law, but on neither of these does the right of the elder line to succeed appear to have been questioned on the ground of the equality of co-heiresses.
(1) On the death of Richard III the Crown would on Mr. Round's theory have gone into abeyance between the several daughters of Edward IV. Henry VII married the eldest daughter, who on the ordinarily accepted view of the law was the rightful Queen. It is well known of course that Henry claimed the throne in his own right (which was non-existent) and strongly objected to any suggestion that he reigned in right of his wife. But it is notable that he undertook to marry Elizabeth of York before he made his attempt; and that after his coronation Parliament urgently petitioned him to do so; obviously there was a strong feeling that by marrying the heiress of the York line he would remove all rival claims; and it never seems to have occurred to any possible rival or other person that a marriage with one of the other York princesses would give any right as against Henry and Elizabeth, whereas of course on the abeyance theory any or all of Elizabeth's sisters had an equal right to the throne.
(2) On the death of Edward VI according to Mr. Round's view the Crown should have been in abeyance between Mary and Elizabeth. In fact the succession was then regulated by Henry VIII's will, which by express statute for that purpose had been given the force of law; but the real strength of Mary's position depended not on her statutory title but on the universal feeling that as the elder daughter she had by the common law and custom of England a natural right to succeed. If there had been any idea abroad that her title was merely statutory and that by the ordinary law Elizabeth had equal rights with Mary this would have been a most powerful weapon in the hands of the Protestant opposition and Wyatt's rising would have been much more dangerous than it actually was.
(3) On Elizabeth's death again the Crown should, on Mr. Round's theory, have gone into abeyance between the descendants of Henry VII's two daughters and James I was only one among several co-heirs with no greater claim than any or others. By statute law, as Mr. Round points out, James was not heir to the throne at all, since Henry VIII's will which had been given statutory force by Act of Parliament completely excluded the line of his elder sister, Margaret of Scotland. The fact that the country unanimously and without hesitation disregarded the technical legal position as being a violation of the common law and of natural right, and accepted James as the undoubted heir is the strongest possible proof that the theory that the Crown goes into abeyance between daughters like a peerage was unknown and that the Common law and the usage of England recognised the right of the elder daughter and her line as against other daughters in the same way as that of an elder son over younger sons.
[Note: The technical flaw in James's title was removed by Act of Parliament 1 James I cap.l.]
It may be added here that obviously the right of Mary Queen of Scots was precisely the same as that of her son. If he was only one of several co-heirs she also was only a co-heiress. But she was universally admitted to be by inheritance the sole heiress after Elizabeth; the discussions as to the succession during Elizabeth's reign turned not on any doubt as to her position as natural heir but on the question whether her right by inheritance or the statutory title of the Grey family under Henry VIII's will should prevail. And yet the fact that she being a Catholic was heir presumptive was for nearly 30 years the great political difficulty in the way of English statesmen and the English nation. If there had been any plausible pretext for maintaining in law she was not the sole heir but merely one of several co-heirs with equal rights, this have been a point of the utmost importance and value to the Protestant interest. It would also have been a very welcome discovery to Philip of Spain, whose standing difficulty in dealing with Elizabeth was that to dethrone her meant replacing her by Mary and thereby bringing England under the influence of Mary's French connections. The fact that in these circumstances there was never any suggestion that the Crown did not descend to an elder daughter in the same way as to an elder son is clear evidence that abeyance of the Crown as between daughters was entirely alien to English law and usage.
(4) The position in 1688 also deserves consideration from this point of view. If James II had had no son there would on Mr. Round's theory have been an abeyance at his death between his daughters Mary and Anne. And according to the official whig view of the Revolution, viz. that James had abdicated and the Prince of Wales was supposititious, this abeyance would actually have occurred. As is well known the Revolutionary settlement conferred the Crown on William and Mary, William being third and Mary first in the line of succession, and recognised Anne as heir presumptive. No idea of an abeyance was ever suggested, although it might have been very useful to some at any rate of the leaders to argue that Mary and Anne having equal rights it was for the nation to choose between them.
(b) Common Law.The accepted legal authorities appear to have no doubt that the law of succession to the throne is not the same as the law of succession to peerages. Blackstone says (Commentaries I p. 193 ff):
"As to the particular mode of inheritance, it in general corresponds with the feudal path of descents chalked out by the Common law in the succession of landed estates, but with one or two material exceptions ..... Among the females the Crown descends by right of primogeniture to the eldest daughter only and her issue; and not, as in common inheritances, to all the daughters at once; the evident necessity of a sole succession to the throne having occasioned the royal law of descents to depart from the common law in this respect."
This necessarily follows from the well established rule of common law that "the King never dies" or as it is sometimes expressed "by the law of England there is no interregnum". See as to this Calvin's case, (Coke Rep. Part VII 10b), and Co. Inst. Part III. 7. It is obvious that under this rule there must always be a next heir ready to succeed immediately on a demise of the Crown, and consequently that anything in the nature of an abeyance or equality between co-heiresses is impossible, since in that case there would necessarily be an interregnum, even though a short one, until it was settled which co-heiress was to succeed.
It is equally obvious that if daughters are not to be equal the elder sister or her line must come before the younger, this being in the circumstances the only reasonable and practicable rule of succession.
(c) Statute Law.The foregoing considerations seem sufficient in themselves to refute Mr. Round's suggestion that the succession to the throne must follow the law of succession to peerages. But the succession of females in order of seniority has been expressly recognised by statute law. One of Henry VIII's Acts of Succession (25 Hen.VIII cap.12) entails the Crown on the heirs male of the King's body; in default of sons on his daughter Elizabeth (Mary being excluded as illegitimate); to Elizabeth's heirs of the body, "and so on from issue female to issue female and the heirs of their bodies by course of inheritance according to their ages as the Crown of England hath been accustomed and ought to go in case where there be heirs female of the same". Similarly the Act I James I cap. 1, sets out that King James being lineally descended of the body of Lady Margaret eldest daughter of Henry VII by his wife Elizabeth eldest daughter of Edward IV, the said Lady Margaret being eldest sister of Henry VIII, immediately on the death of Queen Elizabeth "the crown did by inherent birthright and lawful and undoubted succession descend and come to him as being lineally justly and lawfully next and sole heir of the Blood Royal of this Realm".
These two statutes contain a clear declaration of the law with regard to the succession of females to the Crown, and put it beyond doubt that the daughters of a sovereign (and their descendants) succeed in order of seniority in the same way as males.
Sir John Anderson.
I think you will wish to see this paper. Soon after we came back from Glamis Lord Stamfordham wrote to me about this question of the succession, which had been raised.
I replied to him at some length and you will see that I said that if there was any real doubt on the subject the matter might be considered later on by the Lord Chancellor and the Home Secretary with the Law Officers.
Mr.Eagleston has now gone into the matter at length and in view of his memorandum any question of consultation with the Lord Chancellor seems superfluous. Shall I say so to Lord Stamfordham and send him a copy of the memorandum?
H. R. B. 30/9/30
Mr. Eagleston's memo is conclusive. Send it to Ld Stamfordham as suggested.
1st October, 1930
Dear Lord Stamfordham,
You will remember that in August last after the birth of Princess Margaret of York there were various comments in the Press in regard to the succession to the Throne. We had some correspondence then on the subject and in giving you my personal opinion I said that if there were any real doubt in the matter it might be considered by Ministers and the Law officers. We have now, however, gone into the question fully here and I send you a memorandum by Mr. Eagleston which I am sure, you will find interesting.
It bears out what I wrote to you at the time and in Sir John Anderson's opinion it is absolutely conclusive. You will no doubt agree therefore that any farther consultation on the subject would be superfluous.
Yours very truly.
(signed) H.R. Boyd
The Lord Stamfordham,
G.C.B., G.C.I.E., G.C.V.O.
2nd. October, 1930.
My dear Boyd,
Thank you very much for Mr. Eagleston's interesting memorandum on the question of the Succession to the Throne in the case of daughters. The King has read it and considers it conclusive and trusts that the matter may now be considered as strangled at its birth !
Yours very truly,
H.R. Boyd Esq.,C.V.O., C.B.E.,
Notes on Succession to the Crown11 July 1936.
Recently the succession to the throne (in the event of the King's death without issue and of the Duke of York's death without issue male, but leaving more than one daughter) has been the subject of discussion in the Press and elsewhere.
To some extent this may be due to doubts expressed by the author in Sir Sidney Lee's biography of King Edward VII, 1925. (Vol.II. p. 33. note) where it is stated that if daughters alone appear in the succession "the decision would have to be made between them".
This view is probably based on the legal rule that when a succession to land descends on a co-heirship, all members possess an equality of rights, whereby the land is enjoyed in co-parcenary or a partition is made. When a barony by writ descends on a co-heirship, all the heirs having equal rights, and the barony being impartible, it falls into abeyance, which condition is terminable only by the Grace of the Crown in favour of any single co-heir, or if the abeyance continues, until a sole heir remains who succeeds as of right.
The descent of the Crown is fixed by the Act of Succession, 1701, (12 and 13 Wm. 3. c. 2) which settled the Crown on Sophia Electress of Hanover and the heirs of her body, being Protestants". Sir Sidney Lee appeared to think that if heirs female only appeared in the succession, the rule of law applying to co-heiresses on succession to land must also be applicable to the Crown.
J. H. Round in his "Peerage and Family History", p.458, (The Succession to the Crown) published in 1901 makes a stronger and more logical criticism. He puts the question "Is there any precedent for construing the words 'heirs of the body' to mean the senior of two or more daughters?" The succession to impartible inheritances is instanced and particularly that of baronies, where the rights of co-heirs being equal the intervention of the Crown becomes necessary to make a choice.
The successions here after examined are reviewed and it is pointed out that except in the instance of James I there has been no succession to the elder daughter where the choice was deliberately made free from extraneous factors. He instances also the succession to the Lord Great Chamberlainship (as settled by the decision of 1781) to be a co-heirship, without elder daughter preference. On this ground he traverses the correctness of the Lucas Barony Patent and Act. He ends by claiming that, whatever may have been the opinion generally held in the reigns reviewed, the future must be decided on the strict legal interpretation of descent to "heirs of the body" based on the canons of descent of land.
His conclusion is that an explanatory or declaratory Act is necessary.
This was written before the House of Lords declared the Lucas patent valid in 1907, (treating the Chamberlainship as an office sui generis (although the decision of the Chamber-lainship claim of 1902 substantially followed that of 1781)) following the proved descent to the elder daughter in the Offices of Steward, Marshal and Constable.
Nor was the examination of material disclosed in the Norfolk (1906) and Oxford (1915) Earldom claims then open to inquirers of 1901, and consequently he misses the significance of the elder daughter descent in the Palatinate Earldoms of Chester, and of Pembroke.
Finally he passes over the declaratory clauses in two Acts Passed in the reign of Henry VIII and subsequently examined herein.
Acts of succession detailing descent of Female heirs.
Acts of Succession passed during the reign of King Henry VIII must necessarily be read with full regard to the religious difficulties of the times and the doubts cast upon the validity of some of the King's marriages and consequently on the legitimacy of his children. The first of these Acts, 25 Hen. VIII. c. 22 (1533) bastardised Princess Mary, sole child of Katherine of Aragon by making the marriage illegal. Anne Boleyn's marriage is made legal and the Act settles the succession en the heirs of the King by her and in default of such issue on the King's right heirs.
The Act contains a sub-section which deals with the descent of females and definitely declares the law on the subject. It is as follows:-
(iv) at end... "and for default of such sens of your body begotten and of the heirs of the several bodies of every such sons lawfully begotten, that then the
said Imperial Crown.... shall be to the issue female ... first to the eldest Issue Female end to the heirs of her body lawfully begotten, and for default of such issue then to the second Issue Female and to the heirs of her body lawfully begotten and so from Issue Female to Issue Female and to the heirs of their bodies one after another .... by course of inheritance according to their ages as the Crown of England hath been accustomed and ought to go in cases when there be heirs-female to the same", (stats. of the Realm. Vol.3. (p.475)).
By the Act 28 Hen. VIII. c.7. the two Acts 26 Hen. VIII. c. 22 (Succession) and 26 Hen. VIII. c. 2 (Taking of Oaths) are repealed. Princess Elizabeth joins Princess Mary in illegitimacy and the succession is fixed in the children of Jane Seymour the third wife, Anne Boleyn having been executed. But s. 8 of the 28 Hen. VIII. c.7. practically re-enacts s. iv. of the Act 86 Hen. VIII. c. 22 and so again the course of succession for female heirs is clearly indicated, a. II of the Act 28 Hen.VIII. c.7. gives power to the King in the event of failure of issue to limit the Crown by Letters Patent or by will as he pleases. Finally by the Act 35 Hen. VIII. c. 1. the succession is fixed by Prince Edward, Princess Mary and Princess Elizabeth and their issue in turn.
[Note p. 4: In detailing the succession the term "heirs of the body" only is used. Since the "Female Issue" seniority had been so clearly indicated in two Acts passed less than ten years previously it was evidently thought that repetition was unnecessary. It cannot be suggested that the draughtsmen of the day were unacquainted with the earlier Acts, or that the legal view of their heirship succession had changed in so short a time.]
Failing heirs of his body the King is further empowered by section 6. to declare by Letters Patent or will that the Crown shall go to such person or persons in remainder or reversion as he may choose.
King Edward VI. succeeded by virtue of the Act of 35 Hen. VIII. c.1. (and the Royal will), which together became effective law on the day King Henry VIII died. King Edward VI. just before his death, in violation of the Act 35 Hen. VIII. c. 1. nominated the Lady Jane Grey as his successor. Within a few days the Crown was assumed by Queen Mary and Lady Jane Grey was executed. On the death of Queen Mary, Queen Elizabeth succeeded also by virtue of the Act 35 Hen. VIII. c. 1. Queen Elizabeth's first action on assuming the Crown was to procure an Act recognising herself as the legal Queen and confirming the limitations in the Act of 35 Hen.VIII. c. 1. (See 1 Eliz. c. 3) The expression "heirs of the body" (without elaboration) is used. (See the note on previous page to 35 Hen.VIII).
An attempt was made during the last hours of Queen Elizabeth to persuade her to nominate a successor, but apparently she refused to do anything definite. (See Cambridge Modern History, Vol. 3. pp. 359 et seq. ) Arrangements had already been made by her Ministers that James VI of Scotland should succeed her, and he was immediately proclaimed, in spite of the fact that King Henry VIII's will (made under the Act 35 Hen. VIII. c. 1. and confirmed by the Act 1 Eliz. c. 3) had nominated (in the event that heirs of his body failed) the heirs of Mary, Duchess of Suffolk, his younger sister. Had no disposition been made by Henry VIII's will, then on the death of Queen Elizabeth, unmarried the heirship of the Crown passed to James VI of Scotland as the heir of Margaret, wife of James IV of Scotland, elder daughter of Henry VII and elder sister of Henry VIII. In the succession were James VI of Scotland, heir of the elder daughter of Henry VII, and William Seymour, heir of Mary, Duchess of Suffolk, the younger daughter, whose heirship had been favoured by the will of Henry VIII.
James VI succeeded as James I of England in defiance of the Act 35 Hen. VIII c. 1. which was still on the Statute Book. This was rectified by the first Act of the new reign - 1 Jac. c. 1.
After detailing the new King's descent from "Lady Margaret eldest daughter of King Henry VII and eldest sister of King Henry VIII" the Act declares that immediately on the death of Queen Elizabeth the Imperial Crown "did by inherent right and lawful and undoubted succession descend and come to your Most Excellent Majestie as being lineally, justly and lawfully next and sole heir of the blood royal of this realm".
Very definitely this is a recognition of the right of the eldest co-heir to be "sole heir".
It may be that the Notables thought James was the better man of the two co-heirs; but the fact remains that he was the senior co-heir and declared King as such, in spite of the preference expressed in King Henry VIII's will for the Junior co-heirship.
In the year 1629 Coke published first his Coke upon Littleton and there dealing (Of Parceners 165 a. ) with Partition he observes:
"But the dignity of the Crowne of England is without all question descendible to the eldest daughter alone, and to her posterity, and so it hath been declared by Act of Parliament. For regnum non est divisible".
Coke's reference is given; and is 35 Hen. VIII. c. 1. Coke was born in the year 1552 and all these Acts of Succession and disputes as to the true devolution of the Crown must have been well in his mind.
Coke also speaks of impartibility. Up to his time the Crown had been impartible. Question might have been made of the position of Philip of Spain, who on his marriage with Queen Mary, was regarded in some degree as a "joint sovereign". The position, however, is made clear by the Act 1 Mary s.3. c. 2. which declares Queen Mary the sole executive power in England. She is described in the Act as a "sole" Queen.
The succession, after the flight of James II, seems at first eight to vary the quality of "impartibility". In fact the rule is actually confirmed.
William of Orange invaded England at the invitation of the Notables, and he and his wife, Princess Mary, elder daughter of James II, were declared King and Queen of England. This seems at first sight to indicate something like a Joint holding of the Crown, but the Act of 1 Wm. and Mary , c. 8. settling the succession clearly defines the position;
By s. VIII it is enacted:
"and that the intire perfect and full exercise i of the Regal Power of Government he only in and executed by His Majesty in the names of both their Majesties during their joint lives and after their deceases...... remain to the heirs of the body of Her Majesty".
King William is King by right of invitation and conquest. After his death his wife is next in succession, and then her children not his are indicated. Should Queen Mary II die without issue then Anne her younger sister succeeds.
[Note p. 7: Failing issue of Anne, the heirs of William himself were placed next in succession, thus cutting out the line of Elizabeth daughter of James I, which was next in the regular succession (if the Pretenders be excluded). This was remedied after the death of Queen Mary by restoring the proper line of succession and fixing the Crown by the Act of 1701 On the Electress Sophia (mother of George I) who was the heiress of Elisabeth, Queen of Bohemia, daughter of James I.]
Whatever other factors may have obtained the succession after King William's death is to follow the course laid down for the Issue Female in 25 Hen. VIII. c. 22.
When the Act of Settlement of 1701 was drafted those responsible had before them the history of succession from the year 1633 until the accession of King William III in 1688. The Crown, clearly, had always been an impartible inheritance, and when the principle of impartibility seemed to be in question special provisions had been made (Philip and Mary I - William III and Mary II). Coke's view of the Law (first published in 1628) must have been well known; and his authority was high. The declaratory clause of 25 Hen. VIII. c. 22 repeated in 28 Hen. VIII. c.7 must have been discussed and appreciated. If this be accepted (especially having regard to the succession of Mary the elder sister in preference to Elizabeth the younger, and the choice of James I as the elder co-heir in preference to King VIII's nomination by will of the younger co-heir) it is understandable that when the expression "heirs of the body" was used in reference to the Crown, the course of succession would be clearly and sufficiently indicated by custom and precedent, and that, therefore, there was no need of enlarge-ment, any more than when the Acts 28 Hen. VIII and 25 Hen. VIII were drafted. (see the Note on p. 4 supra).
If it be argued, on the contrary, that the illustrations cited were not of successions where a free choice (from the nature of the cases) was possible; and that other and over-riding factors of expediency which had nothing to do with heirship decided the choice made, then it is open only to proceed by analogy. (Since no exact parallel can exist qua the Crown, precedents must be sought in a lesser degree, and the descent of other impartible Offices of Honour examined). Such are the Honours and Offices of Chamberlain, Marshal, Steward, and Constable, the Earldoms Palatine, such as those of Chester and Pembroke, or the holders of those castles regarded as capital, which were the principal seats of Earldoms and Baronies (caput baroniae).
The descent of these offices and honours was exhaustively discussed in the Lord Great Chamberlain Case, 1902, in the Earldom of Norfolk claim, 1906, in the Barony of Lucas claim, 1907, and in the Earldom of Oxford claim in 1912. The decision in the Earldom of Norfolk claim was solely based on the illegality of a surrender of 1312 and in that of the Earldom of Oxford on an Act of Parliament which altered the limitation of the Earldom in 1392 from heirs general to that of heirs male. The Lord Great Chamberlain decision will be discussed later. The Lucas claim, which had the advantage of previous research for the Lord Great Chamberlain and the Norfolk Claims, and some new material, may reasonably be accepted as a sound source of information on the peculiar descents requiring examination.
The letters patent (and the Act) of 1665 which create the Barony of Lucas contain inter alia the wording following:
" .... and to grant that shee shall hold the sayd Barronie, honour, title and dignity to her and the Heires Male of her body begotten by the sayd Earle. And for want of such issue, to the heires of her body by the sayd Earle begotten. And his Majestie hath by his sayd Letters Pattent declared his will pleasure and intention to bee, that if at any time, or tymes after the death of the sayd Mary, Countess of Kent, and default of issue male of her body by the sayd Earle begotten, there shall bee more persons than one who shall bee co-heires of her body by the sayd Earle begotten. Whereby the King's Majestie his heires or successors might declare which of them hee pleases to have and enjoy the sayd Honour, title and dignity or might hold the same in suspence, or extinguish the same at his, and their pleasures. Then nevertheless the sayd Honour title, and dignity shall not be held,in suspence, or extinguished. But shall goe to and be held and enjoyed from tyme to tyme by such of the sayd co-heires as by Course of descent at the Common Law should be inheritable to other intire and indivissible inheritances as namely an Office of Honour and publique trust, or a castle for the necessary defence of the. Realme or the like in case any such inheritance was given or llmitted to the said Mary, and the heirs of her body by the sayd Earle begotten. It being (as by the sayd Letters Pattents it is further declared) his Majestie's express intent, and meaning that the said honour title and dignity shall and may remain, and bee from tyme to tyme to the said Mary, Countesse of Kent, and the heires of her body by the sayd Earle begotten in that course of Succession, as such other intire Inheritances as aforesaid should descend by the Common Law of the Realme in case the same had been given or limitted to the said Mary, Countesse of Kent, and such heires of her body as aforesayd. Bee it further enacte by the Authority aforesaid that the said Declarative clause in the said Letters Patents shall be and is hereby ratified and confirmed."
The Barony remained entire and was enjoyed in succession by the heirs of Mary, Countess of Kent, although always obscured by higher titles until eventually it emerged from overshadow and devolved on Auberon Thomas Herbert (the senior co-heir) who in 1907 petitioned the Crown for the issue to him of a writ of summons.
The Petition was referred to the House of Lords, and on the 4th of June, 1907, the Committee for Privileges unanimously resolved that the Claimant had made out his claim.
In order to establish his claim the claimant produced documents of public and private record to show that Offices of Honour and Public Trust had, before the passing of the Act of 1663, been regarded as impartible inheritance, and that the senior co-heir had succeeded to the office whenever a condition of co-heirship occurred.
Reference was made to the Offices of Steward, Marshal, Constable and Chamberlain, although the latter was, as a result of decisions in 1791 and 1902 adjudged to be an heirship of a peculiar kind to which the general rule stated by Coke was held not to apply.
As to the form of words "a castle for the necessary defence of the realm", reference was made to Coke upon Littleton wherein alone these words are known. The lawyers who drafted the Lucas Letters Patent apparently adopted Coke's own wording. This seems the more probable since the first edition of Coke upon Littleton had appeared in 1628, and the Lucas Patent was drafted (in 1663) at a time when Lord Coke's authority was at its highest.
It is of interest also to trace the descent of two of the English Palatinate Earldoms, great offices of honour with a jurisdiction (in their own territories) almost Royal. These are the Earldom of Chester and the Earldom of Pembroke, the former a bastion on the Northern Marches of Vales and the latter a coastal enclave in South Wales used as an important half-way house on the shortest convenient sea journey between England and Ireland.
In 1237 John le Scot, Earl of Chester, had died seised of the dignity of Earl of Chester and also of the territorial palatinate (comitatus). Hie heirs were the two daughters of his eldest sister and his two younger sisters. William de Fors, heir to the Earldom of Albemarle, who had married the elder daughter of the eldest sister, made in her right a double claim (a) to be Earl, (b) to the whole comitatus, on the ground that it was a palatinate and, therefore, exempt from the general rule of partition. His opponents, the other claimants, did not deny his right to be Earl but claimed that the lands were partible. The dignity of Earl was never in dispute. In the end the Earldom, with its lands, was annexed to the Crown, probably because otherwise the greater part of the lands would fall to be allotted in partition among heirs who were married to Scottish nobles whose feudal allegiance to an English King, put at the highest, would be divided. (See Knyghton's Chronicle. c.XXXV. )
It is necessary to refer to this case in detail because Coke, in his section on partition (Coke upon Littleton. Of Parceners, 165 a. ) seems to have been under the impression that the actual dignity of Earl became part of the co-heirship, but when the authorities he quotes are examined it is seen that he had not clearly appreciated the ratio decidendi. Cruise disagrees with Coke's statement. (See his "Dignities", 2nd Edition 1823, pp.181,2. ) so also does Round, strongly. (See his Peerage and Pedigree, Vol.I, pp.131 et seq. ). In the case cited by Coke, William de Forz is spoken of as one "who has the aesnescia and ought to be Earl as all the parties admit". The term "Aesnescia", "esnecia", or "droit d'ainesse" is monkish legal jargon for the right of the elder daughter, (see Lucas Claimant's Book of Documents, No. 2. pp. 77 and 79), a right of succession which in this Chester claim is never questioned by any of the parties. It was in fact very much debated both in the Lord Great Chamberlain claim of 1902 and in the Earldom of Norfolk claim of 1906. In the former it was not deemed applicable since the office was held to be of a peculiar nature with succession rights sui generis. In the Earldom of Norfolk claim decision turned solely on the illegality of the Earldom surrender in 1512.
The details concerning Coke's authorities on this question were not known at the time the above claims were heard, but were subsequently closely examined and, in view of later research, re-stated in the Case of the Lucas claimant in 1907. The whole question is minutely treated by J.E. Bound (Peerage and Pedigree, Vol.1.) in his chapter (above cited) termed "The Muddle of the Law".
As to the course of descent of the Earldom of Pembroke the South Wales palatinate, there is no dispute. Aymer de Valence, Earl of Pembroke, died without issue in 1324, leaving two sisters, Isabel the elder, and Joan the younger. Isabel a married John, Lord Hastings, leaving a son, John II, Lord Hastings; who had a son and heir, Laurence, Lord Hastings III. In 1339 Letters Patent were issued to Laurence, Lord Hastings.
The material parts translated (vide Speeches delivered on the claim to the Earldom of Norfolk, 1906, p. 55. ) are as follows:
"Whereas the inheritance of Adomar de Valence, Earl Palatine, as it is called, of Pembroke...... has devolved on his sisters to be divided proportionately between them and their heirs, inasmuch as it appears that the aforesaid Laurence, who succeeded the said Adomar in a part of the inheritance, is descended from the elder sister of the said Adomar and as on the declaration of skilled persons whom we have consulted hereupon the prerogative of the name and honour is due to him we consider it Just and due that the said Laurence having his claim from the elder sister do assume and hold the name of Pembroke...... the said Laurence to have and hold the prerogative and honour of a Palatine Earl in the lands which he holds of the inheritance of the said Adomar."
There is no room for doubt here. Skilled persons have been consulted, the law has been clearly stated in response to a specific inquiry, and the King follows it, thus definitely accepting this jus esneciae. The honour descends of right through the elder sister.
The next reference of interest is the expression used in the Lucas Patent and Act of 1665: "a castle for the necessary defence of the realm", which is obviously Coke's. (Coke upon Littleton. Of Parceners. 165 a. ) He states:
"If a castle that is used for the necessary defence of the realne descend to two or more parceners this castle might be divided by chambers and roomes, as other houses be. But yet for that it is pro bono publico et pro defensione regni it shall not be divided; for as one saith propter jus gladii dividi not potest, and another saith pur le droit del espee que ne souffre division en aventure que la force del realme ne defaille par taunt. But castles of habitation for private use that are not for the necessary defence of the realme ought to be parted between co-parceners as well as other houses. "
Since here again Coke's conclusions do not appear to be completely borne out by the authorities he cites the latter must be examined. The words "propter jus gladii" are evidently taken from Bracton (who died about 1280) writing of co-heirship in his "De Legibus Anglise" (Ed. 1569 f76. Rolls Series, Vol.I. p. 604 for Translation).
"But concerning this which is said that in the case of a military fief the chief messuages come into division and are divided between the co-heirs this is true, unless the chief messuage be the capital mansion of a county, on account of the right of the sword, which cannot be divided or the capital mansion of a barony, a castle, or other edifice, and this for reason lest the capital mansion should be thus divided into several shares and the severed rights of counties and baronies should be diminished to nothing whereby the realm would fall, which is said to be made up of counties and baronies".
Similar statements are made by Britton, (Ed. 1640 [Wingate] c.72; ed. 1866 Nichols, Vol. 2. p. 74. f. 186 b.) and Fleta (ed. 1647 [Selden] f.313) all of whom were a little later than Bracton.
J.H. Round holds the view (see his Peerage and Pedigree, Vol. I. p.115) that Coke's expression gives undue weight to a "castle" (whether for the defence of the realm or not) and states that what Bracton had in mind as the capital messuage of a comitatus, as exemplified by "the Earl's sword". This expression it may be noted appears in most of the Earldom charters of creation which detail a girding with the "sword", that is the symbolic "sword" of the Earl. Bracton certainly stresses the capital mansion of Earldom and barony rather than a castle.
But if Coke's expression "castle for the necessary defence of the realm" be regarded as a condensed summary only of Bracton's observations rather than as a direct extract, is he far wrong? The capital mansion of an earldom (or of a barony) was undoubtedly the principal fortified centre (castle) of the Earldom lands. Bracton does use the words "castle or other edifice" and then goes on to say that if these be divided into shares, then (coloquially speaking) a general break-up would result and the realm would flail". So regarded Coke's crystallised expression "a castle for the necessary defence of the realm" seems net unjustified. In any event Bracton definitely lays it down that the capital mansion of a county or of a barony, a castle or other edifice so situated must not be partitioned, since if partition occurred the realm would be without the support of these "whole" counties and baronies of which it is made up; and the fortified centres of which were obviously its basic defence.
Such special capita, castles, or edifices of a like nature, descend undivided, to the eldest co-heir.
The descent of the offices of Steward, Constable, Marshal, and Chamberlain are reviewed in the Case of the Lucas claimant, 1907, and the relative documents are to be found in his Books of Documents. (Book No. 2). The successions to these offices were also exhaustively discussed in the Lord Great Chamberlain Claims of 1781 and 1902. The successions to the Offices of Steward and Marshal are not in dispute, the right of the elder co-heir, so long as the offices existed as heirships, being admitted as a matter of course.
The tenure of the office of Constable stretches to a later date and a closer examination may be of value.
In 1509 the office of Constable was claimed by Edward, 3rd Duke of Buckingham (making his title through Humphrey, the 1st Duke of Buckingham, only child and heir of Anne, wife of Edmund, Earl of Stafford). The petition was referred by King Henry VIII to the House of Lords, and was determined in 1515 after a full discussion and report by all the Judges. The claim is reported in Dyer's Reports (3 Dyer 285 b. Reprinted 73 Eng. Reps. 640); Keilway's Reports, p.170, and in Jenkins's Eight Centuries of Reports (6th Century case 14).
Dyer's Reports were published in 1585. He had died in 1562. Three editions of Dyer appeared before the first of Keilwey, which was not issued until 1602, twenty one years after his death. The records of the day show that Dyer was very highly regarded both as a Judge and as a reporter. In Dyer the case headnote is as follows:
"If a man holds manors of the King by service of being Constable of England, it is a good tenure in Grand Serjeantry. If he die, leaving two daughters while sole they may exercise it by deputy, and after the marriage of the eldest, her husband alone may exercise it, and the youngest also marrying and the crown devolving upon her husband who makes partition still the husband of the eldest must do the entire service; but the King may refuse the services at his pleasure".
Keilwey's Report (at p.171. Reprinted 72 Eng. Rep. 346, and see particularly Editor's note) makes no mention of the privileged position of the elder daughter, simply stating:
"And the second question was when the manors (by tenure of which the Office of Constable was stated to be held) descended to women how they could exercise the Office, and as to that question the Judge seemed clear that they could make their sufficient deputy do the office for them".
It may here be noted that the Crown had accepted from earlier male holders of the Office deputies duly nominated to act in the life time of the holder. (Barony of Lucas claim, 1907, Book No. 2. pp. 77, 79 and 81). Absence, sickness, or the appearance of unmarried heiresses could not be allowed to prevent the discharge of official duties, hence a deputy to set.
The Buckingham claim was referred to in the Lord Great Chamberlain case of 1625 where Doddridge J. observes:
"The Office of High Constable did descend by many descents in the blood of the Bohuns, Earls of Hereford and Essex (the case in 6 H. 8. ) if that descend to daughters they may make their assugnees and if the eldest be married her husband shall execute the office. (Sir Wm. Jones's Reports, p. 124. 96 Eng. Reps. at p. 96).
Three years later, 1628, the first edition of Coke upon Littleton was published; and Coke refers to the case (Of Parceners. 166 A. ) as follows:
"for if a man hold a manor of the King to be High Constable of England, and dye having issue two daughters, the eldest taketh husband he shall execute the office solely, and before marriage it shall be executed by some sufficient Deputy and all this was resolved by all the Judges of England in the case of the Duke of Buckingham".
Jenkins J. in his "Eight Centuries of Reports," first published in 1661,(Barlow's translation, 1781, 3rd edition "Sixth Century-case 14" Jenkins, p.236) says:
"It was resolved first that the said tenure is a tenure by grand serjeantry. Secondly that the daughters might execute the said office by deputy. Thirdly after the marriage of the elder sister, her husband alone might exercise it."
In fact the King did not call for the service of the Constable. The Duke of Buckingham was executed and attainted in 1521, when the office reverted to the Crown. It has never since been granted in fee.
J. H. Round in his "Peerage and Pedigree" (Vol. I. pp. 147 et seq) takes the view that the Judges were wrong in the Buckingham claim in assuming that the Constableship was held in right of "the manor" referred to. He regarded the office as held by Grand Serjeantry, unattached to land.
As to the Lord Great Chamberlainship, it will be sufficient to give a summary of the decisions on the claim, since the arguments of Counsel, the Case of 1902, and the Documentary proofs ore all to be found in the Lord Great Chamberlain speeches of Counsel 1902, and the Books of Documents lodged for the purposes of the Claim. (See also, for the 1781 claim, House of Lords Journals, 25 May, 1781).
Up to the reign of Henry VIII this office had followed the usual course of descent, only heirs male appearing in the succession. It was then the subject of an award by the King which was held subsequently to have passed it (without specific mention but along with other "offices") to the heir male. This award received contemporary statutory confirmation.
The nature of the descent may be summarised as follows:
The claimant, in order to establish his case, was required to prove that;
The claimant also drew attention to the acceptance by the Courts
Chancery of this interpretation, instancing as follows:
"The Act 15 Chas. II. No. 15 in addition to confirming the declarative clause of the Letters Patent granting the Barony of Lucas fixed the descent of the Manor of Crudwell-cum-Escott, a portion of the property settled on the marriage of Amabell, 1st Baroness Lucas 'in such manner as a Castle for the necessary defence of the realme or other intire inheritance not partible or divisible among co-heirs' i.e. a descent to the senior co-heir".
Since the year 1852 there have been frequent copyhold enfranchisements of the settled estates. Some of the land has been sold to Railway Companies. Frequent application to the Chancery Courts as to the disposal of these moneys has been necessary; and on every occasion the Courts have adopted the view that when a condition of co-heirship arises in the inheritance settled under and by virtue of the Act 15 Chas. II. c. XV. (163) and a later Art (relating to Exchange of Estates) 50. Geo. III. c. CXCVII. no partition follows but the senior co-heir succeeds to the entire estate.
When the Letters Patent conferring the dignity of the Barony of Lucas were drafted by the Advisers to the Crown in 1663 there was on record no instance in which an office of Honour in which co-heirship had arisen, and which had not been arbitrarily resumed by the Crown, the office wag regarded as impartible and had always been allowed, as of right, to the senior co-heiress.
The only surviving ancient office of Honour held in heirship is that of the Lord Great Chamberlainship ans as already noted decisions of 1781 and 1902 have been recognised it as anomalous, and not following the course of descent usual in other offices of honour. In 1907, with the facts of the Lord Great Chamberlain cases of 1781 and 1902 well before them the House of Lords accepted unanimously the Lucas claim.
It may be a argued that all this decision implies is that the House of Lords were satisfied that the intention of the Letters Patent was to prevent abeyance and, therefore, the only possible alternative was somehow to indicate the senior co-heiress. The courses of descent examined, it might be said, were contradictory, and, therefore, the resolution did not in terms declare that these Offices carried descents with a senior co-heiress privilege.
On the other hand, there is a specific reference to Offices of Honour as impartible inheritances, and to the words "castle for the necessary defence of the realm or the like", and it may, therefore, be presumed that the documentary evidence produced to indicate such courses of descent was accepted as sufficient proof, and the Lord Great Chamberlainship regarded as an office sui generis, which did not affect the general rule.
Finally I give the conclusions which may reasonably be assumed from the evidence examined.
Temple. 11 July 1936.
Succession to the Crown.
Note by Parliamentary Counsel on the interpretation of the relevant Statutes.
In view of the exhaustive treatment of this subject in the memoranda prepared by Mr. Eagleston and by Sir Geoffrey Ellis I confine this note to a few observations upon what I conceive to be the relevant statutes, and the rules of construction by which they should be interpreted.
It seems to me that Dr. Round's argument is based upon a fallacy which is ingenuously stated in terms towards the end of his article thus -"What we have to deal with is ... the interpretation in a statute of the words 'heirs of her body' in a sense entirely different from that in which (it will not be denied) they are invariably construed." Such saltatory methods of interpretation of a statute are not justified by any known rule of construction and the suggestion that the same words in different statutes must invariably be construed in the same way must certainly be denied; for it offends against the fundamental rule, said to have been first formulated by Sir Thomas More, "that words cannot be construed effectively without reference to their context" (cf. dictum of Lord Blackburn in Edinburgh Street Tramways Company v. Torbain (1877 3 App. Cas.68) - "words used with reference to one set of circumstances may convey an intention quite different from what the self-same set of words used in reference to another set of circumstances would or might have produced".)
In my view the proper way to construe the expression "heirs of her body" in section one of the Act of Settlement is by "giving them their ordinary meaning in the English language as applied to such a subject-matter as the Act was dealing with (per Esher M.R. in Clerical Assurance Co. v. Carter (1889 22 Q.B.D.448)). The subject-matter with which the Act of Settlement dealt was not the devolution of property or of peerages, but the succession to the Crown, and the important thing to my mind is to ascertain how these words would have been construed in relation to the succession to the Crown the time when the Act of Settlement was passed (Sharp v. Wakefield 1888 2 Q.B.D. 241 Esher M.R.) for as Lord Blackburn said in Young v. Mayor of Leamington (1883 8 App.Cas.526) the courts "ought in general in construing an Act of Parliament to assume that the legislature knows the existing state of the law".
In order to ascertain what was, at the time when the Act of Settlement was passed, regarded as the state of the law relating to the succession to the Crown in the female line, the first thing to do is to look at the Act itself as a whole, i.e. to construe the words in question "ex visceribus actus" (Coke in the Lincoln College case 1595 5 Co.Rep. 59 V.). Now the preamble to the Act of Settlement recites the Bill of Rights as declaring that the Crown should "be and continue to William III and Mary during their joint lives and to the survivor of them and that, after the death of both, it should be and remain to the heirs of the body of Queen Mary, and for default of such heirs to Princess Anne of Denmark and the heirs of her body and for default of such heirs to the heirs of the body of William III." Upon the assumption that the true legal doctrine is that which had been set out in 25 Hen.VIII c.22 (cit. infra) such a succession -i.e. to the first, second and third lines one after the other - would be the natural one, but it would be entirely incompatible with any doctrine of co-parcenary in relation to the Crown. There is nothing in the Act of Settlement or the Bill of Rights to suggest that the succession thereby enacted was regarded as anything but the natural one.
The next legitimate step in my view is to examine earlier statutes dealing with the same subject, viz.:- the succession to the Crown. When the Bill of Rights was passed the latest previous statute was 1 Jac.l c.l which recites that James I is "lineally rightfully and lawfully descended of the body of the most excellent Lady Margaret, eldest daughter of the most renowned King Henry VII and the high and noble Princess Queen Elizabeth his wife, eldest daughter of King Edward IV, the said Lady Margaret being eldest sister of King Henry Eight (sic) father of the high and mighty princess of famous memory Elizabeth late Queen of England".
Here too is a statutory declaration consistent with the doctrine of primogeniture among females but entirely inconsistent with any view of co-parcenary in relation to the succession to the Crown. The series of Acts dealing with the succession to the Crown which preceded this Act of James I is the series of the reign of Henry VIII to which more detailed reference is made in Mr. Pennington's opinion, and it is of great interest to note that the first of these Acts namely 25 Hen.VIII c.22 states in terms that the succession is to go among female issued "one after another by course of inheritance according to their ages as the Crown of England hath been accustomed and ought to succeed and go in case where there is heir female inheritable to the same."
It will be seen therefore that when the words "heirs of her body" in section one of the Act of Settlement are construed not by reference to unwarranted analogies but by reference to what may be called their own statutory pedigree, Dr. Round's thesis becomes untenable.
(sgd.) J. Granville Ram.
15th January, 1937.
The Parliamentary Counsel
Whitehall S.W. 1.
28th January, 1937.
We recently discussed the question what would happen if after a demise of the Crown to a daughter of a deceased King a posthumous boy should be born to him. (The same difficulty would of course arise if after a demise to any member of the Royal Family, not being the highest possible in the line of succession, a posthumous child higher in that line should be born.)
We agreed that in our view it is not possible to provide for such a contingency. Happily, such an event has never occurred in the history of this country, nor so far as I know of any other, and we can only hope that it will never do so. The doctrine that there can be no interregnum requires that upon the death or abdication of a sovereign the Crown should instantly pass to the successor, and I think this must mean that it should so pass to a living person absolutely. Anything in the nature of a provisional possession of the Crown seems to me entirely inconsistent with sound constitutional doctrine.
I understand that it is now under consideration whether it would be well to include a question on this point in the case which is being prepared for the Law Officers as to the succession of the Crown in the female line. I should have thought it unnecessary to burden the case with this point but for the fact that my attention has been drawn to the terms of the Proclamation on the occasion of the accession of Queen Victoria. I enclose a copy of this document from which you will see that savings were inserted for "the rights of any issue of His late Majesty King William the Fourth which may be born of His late Majesty's Consort".
This seems to me most unfortunate. Leadbitter is unable to trace in the Privy Council Office any papers showing how this saving came to be put in, but I imagine it must have been done from some excess of caution and without proper consideration of its implications. I do not know what was the age of the widowed Queen when William IV died in 1837, but she had married him 19 years before, and it was nearly 17 years since her last child had been born to her. It seems likely, therefore, that the question had no practical importance at that time and probable that these ill judged savings were not considered with sufficient care. In view, however, of their presence in that Proclamation I think it would be well to put the point to the Law officers in the hope that they will advise that this bad precedent should not be followed in future proclamations.
J. Granville Ram
O.F. Dowson, Esq.., C.B.E.,
29th January, 1937.
I have turned over in my mind and have discussed with Ram the problem which you put to me over the telephone the other day as having been raised by Barnes, viz. whether any action is desirable or practicable in anticipation of the unlikely, but nevertheless possible, contingency of the death of the present Monarch leaving a child en ventre sa mere, which child may be a male.
I have just received from Ram a letter dated 28th January, copy of which I enclose, together with a copy of the Royal Proclamation of the 20th June, 1837, to which he refers. As this letter puts on record the course which our discussion took, as well as Ram's views (with which I agree), I do not think that I need now add anything. But I should very much like the opportunity of a talk with you about this matter. The fact that the question of the descent of the Crown to the eldest of two or more surviving daughters on the demise of the Sovereign leaving no issue male is being put to the Law Officers seems to give an opportunity for putting this new problem also to them; and I think it would be convenient, as Ram suggests, to put the point in the form of a request for advice on the necessity for including in any future proclamation the saving words which appeared in the proclamation of 20th June, 1837. The precedent is certainly an awkward one, but I agree with Ram's view that it is a bad precedent - bad that is in the sense that it seems to presuppose an established principle that the posthumous male child of a deceased Sovereign would oust the actual successor to the Throne if such child would have succeeded if he had been born before the demise.
Since dictating the above I have received from Barnes copies of the draft Case for the opinion of the Law Officers (and Counsel - Geoffrey Ellis); and I enclose for your observations one of the copies of the Case. In view of the Home Secretary's reply in the House of Commons yesterday to the Question put by Mr. Mander, the submission to the Law Officers is no longer a matter of immediate urgency.
(Sgd.) O.F. Dowson
Sir Claud Schuster, G.C.B., C.V.O., K.C.
Note: on Jan 28, 1937, during debates in the House of Commons on the Regency Bill, Mr. Mander asked whether it was proposed to amend the Act of Settlement so as to make clear that Princess Elizabeth is the sole Heir to the Throne and does not share it jointly with her sister on the analogy of the peerage law of inheritance. Sir John Simon's reply was that there is no reason to amend the Act of Settlement. The Government, he said, were advised that there is no doubt that in present circumstances Princess Elizabeth would succeed to the Throne as sole Heir.
29th January, 1937.
Since I dictated my letter to you this morning I have been looking at the Regency Act, 1831 (1 Will. IV, cap.2), and I find in sections 2-6 of that Act the explanation of the presence in the Proclamation of the 20th June, 1837, of the saving for the rights of any posthumous issue of King William IV. Those words were "That saving was in fact prescribed by section 2 of that Act", and section 3 specifically provides for a Regency and for the guardianship of I any such child; and section 4 declares that such child shall be proclaimed the "successor entitled to the Crown of these Realms".
This puts a new complexion on the matter so far as I am concerned, but perhaps you have already had this Act in mind.
Sir Claud Schuster, G.C.B., C.V.O., K.C.
29th January, 1937.
SUCCESSION TO THE THRONE.
I have now received from the Treasury Solicitor copies of the draft Case which he has prepared for the opinion of the Law Officers as to the position in the event of the demise of the present King leaving daughters but no male issue.
As you know, in view of the answer given by the Home Secretary in reply to a Question by Mr. Mander in the House yesterday a submission of this question to the Law Officers is no longer a matter of immediate urgency. But I understand that the Home Secretary agrees with our view that it is desirable that the Case should proceed so that a formal opinion of the Law Officers can be obtained.
I have not had an opportunity of considering the Case yet, but from a rapid glance through it I gather it is not proposed to send the Law Officers a copy of Eagleston's memorandum of 1930. I think it is desirable that they should see it!
I am much obliged to you for your letter of yesterday about the problem involved in the possibility of a posthumous Heir to the Throne.
I have not yet had an opportunity of speaking to the Home Secretary about it, butt I think it is not unlikely that he would agree with the suggestion that this question should also be put to the Law Officers on the lines you suggest in your letter.
In view of the provisions of ss.2-5 of the Regency Act, 1851 (1 Will.IV c.2) which I mentioned to you in the course of our discussion this afternoon, the presence of the saving words in the proclamation of 20th June, 1837, is accounted for. But to my mind, I think and to yours also, there is considerable obscurity as regards the constitutional principles underlying the procedure contemplated by this Act for supplanting the reigning Sovereign in the event of the posthumous birth of a child of the late Sovereign. The problem before us needs a lot of consideration and it might be useful to have an informal meeting to discuss the matter, i.e. Schuster, Barnes, yourself, and myself.
I return your file which has been sent back to me by the Treasury Solicitor with the draft Case; it is possible that the Treasury Solicitor may want it back when the Case for the Law Officers is being finally settled. I have a copy of the relevant documents so we shall not need your file here.
(Sgd.) C F. DOWSON
J. Granville Ram, Esq., G.B.
12th February, 1937.
You will remember that when I saw you two days ago I mentioned in connection with the posthumous child question in relation to the succession to the Crown, that provision for meeting such a contingency had been made in the Regency Act, 1831 (1 Will. IV cap. 2) ss.2-5. These provisions explain the presence in the Accession Proclamation of the 20th June, 1837, of the saving for the rights of any posthumous issue of King William IV (see s.2 of the Act of 1631). Section 5 specifically provides for regency and for the guardianship of any such child; and section 4 declares that such child shall be proclaimed the "successor entitled to the Crown of these Realms". In the events contemplated by these provisions Queen Victoria would have come to the Throne on the death of King William IV and would have remained Queen until the arrival of the posthumous child of William IV and thereupon the child would be proclaimed Sovereign and Queen Victoria would then retire from the Throne. In that event, the machinery of government was to continue as though Queen Victoria had died. This is a most remarkable solution of all the difficulties.
I have not yet got from the Home Secretary any decision as to what is to be done (if anything) about this posthumous child question; out it is evident that something must be done because Leadbitter requires instructions for the purpose of settling the form of the Proclamation that would hereafter be required in the event of the death of the present King.
Ram and I had discussed the possibility of including a question on this point in the Case for the Law Officers as to the succession of the Crown in the female line; but after consideration came to the conclusion that this would not be a very convenient way of dealing with the matter. Perhaps you would kindly let me know whether you have any suggestion to make subject to what you think. It seems to me that the best plan would be to draft a short case for submission to the Law Officers for their advise as to the form which the Accession Proclamation should take in the event of the death of the King in existing circumstances.
Sir Thomas Barnes, C.B.E.
17th February, 1937.
My dear Barnes,
Leadbitter recently showed me a copy of the Proclamation issued at the time of Queen Victoria's accession and drew my attention to the fact that it contained what purported to be express savings for any posthumous son born to the widow of William IV. This, no doubt, followed from similar savings which had been inserted in the Regency Act of 1830.
As you know it is the practice immediately after one accession to prepare all the necessary documents which will be required urgently upon the next accession, and therefore Leadbitter is now under the necessity of preparing an accession Proclamation. He asked me whether I thought we ought to follow the precedent of 1837. Personally, I think the answer to this should be, "certainly not". But I think that whatever the answer, it should be given with the authority of the Law Officers.
Leadbitter discussed this again with me to-day, and we agreed that the best way would probably be to ask you to submit a case for the Law Officers' opinion. Presumably this will be on the instructions of the Privy Council Office, but Leadbitter suggested that I should first write to you in the matter telling you at the same time that he would be glad to give you any information that you may require. I need not add that if I can give any assistance I shall be happy to do so.
My own view on the point at issue is that it is one for which it is absolutely impossible to provide It seems to me inconsistent with all sound constitutional doctrine that there should be anything in the nature of a qualified demise of the Crown. "The King never dies" , and therefore it seems to me the Crown must pass instantly and absolutely to the next successor who must be, so it appears to me, "a life in being". I cannot think that any argument by analogy to the law of property under which in some circumstances an unborn child may have an interest, can be sound, Property can be held in trust for an infant, and in some circumstances for an unborn infant, but I do not see how the Crown can ever be held in trust at all, nor can a sovereign ever be "an infant". I am, however, bound to confess that I do not know what on earth would happen if after the accession of a sovereign a child were to be born who, if he or she had been born before the accession, would have had a prior right to the Crown. This might, of course, happen not only in the event of the posthumous birth of a Prince after the Crown had passed to a Princess, but also in the event of a posthumous child in the senior line after the demise of the Crown to the junior line.
I do not know whether the Law Officers can find any answer to this conundrum, but it seems to me that all that is necessary at the moment is to obtain their direction as to whether the Proclamation now to be prepared may be allowed to ignore the possibility.
Sir Thomas Barnes, C.B.E.,
St James's Park
15th March, 1937.
Shortly after receiving your letter of the 12th February on the posthumous child question I received a letter on the same subject from Ram. He suggested, as you did, that it would be sufficient at the moment to draft a short Case to the Law Officers simply asking for their direction as to whether the Proclamation now to be prepared may ignore the rights of a posthumous son. I have considered the matter, and while I agree that a Case should be submitted to the Law Officers on the posthumous child question, I do not think that it can be confined to the single question of the form of the Accession Proclamation. It seems to me that before this question can properly be decided it is necessary to ascertain whether a posthumous son has any rights. If he has no rights, of course the question does not arise, but if he has rights, then the question arises as to whether or not it is necessary in the Proclamation to give notice that the succession is a contingent succession.
I suggested to Ram, and he agrees, that the questions submitted to the Law Officers should be
It seems to me that the Regency Act of 1830 proceeded on the basis that the current view as to the law of succession to the Crown was that Victoria succeeded immediately and her succession was liable to be defeated by a posthumous child of William IV. I was wondering whether there were any papers in the Home Office connected with the drafting of that Act which would throw any light on this matter.
T. J. Barnes
O.F. Dowson, Esq.., G.B.E.,
16th March, 1937.
Many thanks for your letter of the 15th instant about the posthumous child question and the proposal to consult the Law Officers as to the form which the Accession Proclamation should take in the event of the death of the King in existing circumstances. It never occurred to me for a moment that the main question what are the rights of a posthumous son could be avoided by asking the Law Officers for their direction as to the form of Proclamation. It seems to me obvious that the Law Officers in advising whether the Proclamation should include a saving for the rights of a posthumous son must necessarily make up their minds whether a posthumous son would or would not have a right of succession to the Throne to the exclusion of the female heir who had in the meantime succeeded to the Throne.
I had accordingly treated the necessity for settling the form of Proclamation as a convenient and indeed necessary peg on which to hang the main question since it is necessary that Leadbitter should know in the near future what form the Proclamation should take. It seems to me, therefore, that questions (l) and (2) which you suggest in the eecond paragraph of your letter should be put to the Law Officers.
There are in the Home Office no papers connected with the drafting of the Regency Act, 1831. I am getting someone to obtain from the Record Office such papers as may be in existence.
(sgd.) C. F. Dowson
Sir Thomas Barnes, C.B.E.
Sir Thomas Barnes has been asked by the Privy Council Office (Mr. Leadbitter) whether steps can be taken to obtain the directions of the Law Officers as to the form which the next accession proclamation should take with reference especially to the form of the accession declaration made when Queen Victoria came to the Throne. As you will remember, the latter form of declaration was in accordance with the requirements laid down in the Regency Act, 183D, and contained accordingly a saving for the rights of any posthumous issue of King William IV. I have now had a letter from Sir T. Barnes suggesting that the questions to be put to the Law Officers should be (l) what are the rights of a posthumous son, and (2) if he has any rights whether any express reservation of those rights should be contained in the accession proclamation; and he has asked me whether there are any papers in H.O. connected with the drafting of the Regency Act, 183l, which would throw light on this matter - I think it may be taken as pretty certain that there are no such papers in H.O. now, but this should be verified by the Registry. Could you get someone to do this and, further, if there are no such papers here, ask the Record Office to send any papers which they may have on the subject?
PUBLIC RECORD OFFICE,
Chancery Lane, W.C.2.
19 March, 1937.
We cannot identify the Regency Act of 1831 to which you refer in your letter to me of the 17th instant and think that what you have in mind in the statute, 1 William IV, cap. 2, which was enacted on 23 December, 1830.
On this assumption, we are sending to the Superintendent of the Registry at the Home Office, this afternoon, the four bundles of general domestic correspondence and papers covering the period from accession to enactment, viz., H.O.44/20-23. Whether any such papers as you desire are to be found therein we cannot, as you know, say.
We have, furthermore, examined the following bundles and volumes, but nothing to the point has been observed:-
Domestic: - George IV and later, Correspondence (H.O. 44):
Departmental:- Warrant Books; Letter or 'Domestic' Books (H.O. 117 ):
H. A. Strutt, Esq.,
Whitehall, S.W. 1.
CASE TO THE LAW OFFICERS TO ADVISE AS TO THE SUCCESSION TO THE THRONE
The Law Officers and Counsel are asked to advise as to whether or not in the event of the demise of His Present Majesty without issue male and leaving more than one daughter surviving, the Crown devolves on the eldest of those daughters. There are enclosed with this Case two memoranda dealing with this question, one prepared by Mr. Eagleston and the other prepared by Sir Geoffrey Ellis, and a Note by Mr. Ram of Parliamentary Counsel on the interpretation of the relevant Statutes.
The succession to the Throne is governed by the Act of Settlement, 1700, Section 1 of which provides that after the death of William III and Anne, and "in default of issue of the said Princess Anne and of His Majesty respectively, the Crown and Regal Government of England, France and Ireland, and of the Dominions thereunto belonging... shall be remain and continue to the said Most Excellent Princess Sophia (Sophia Electress and Duchess Dower of Hanover daughter of Elizabeth late Queen of Bohemia daughter of James I) and the heirs of her body being protestants". The answer to the question upon which the Law Officers' and Counsels' opinion is desired therefore depends on the construction to be given to the words "heirs of her body" in this Statute, and on that alone. Until the beginning of this century it had been generally assumed that if the heirs were two or more daughters, the eldest succeeded to the throne. In 1901, however, this view was challenged by Mr. J. H. Round in an article which he wrote on the succession of the Crown (see Round's Peerage & Family History, pp. 458 et seq.) He contends that there is no precedent for construing the words "heirs of her body" as a limitation to the eldest alone of two or more daughters; he applies to the Crown the analogy of the law of descent to real estate where daughters take equally as co-parceners and also to peerage dignities, particularly baronies, the impartible nature of which leads, not to their inheritance by the eldest co-heiress alone, but to their disappearance by falling into abeyance, until the Crown calls them out of abeyance. He also cites in support of his contention the case of the hereditary office of the Lord Great Chamberlain in 1781 in which it was held that that office vested jointly in the two daughters of the Duke of Ancaster the last holder of the office. He points out that in the two cases in which succession to the Crown by co-heiresses had arisen before in English history, that is to say, Queen Mary and Elizabeth, and Queen Mary II and Anne, the succession had been regulated by Statute. Moreover he rejects the precedent of the case of James I, who, as heir of the elder daughter of Henry VII, came to the Throne to the exclusion of the heirs of the younger daughter and in direct defiance of the Will of Henry VIII.
It is submitted that Mr. Round's argument is based upon an analogy for which there is no justification. The following quotation from the late Professor H.W.Fowler may be considered apposite - "It" (i.e. analogy) "is perhaps the basis of most human conclusions, its liability to error being compensated for by the frequency with which it is the only form of reasoning available". Mr. Round was doubtless very familiar with the law relating to the devolution of peerages and it may be that he adopted it by way of analogy as "the only form of reasoning available" without sufficient consideration of the rule which requires statutes to be construed according to the context provided by their subject
In construing the words "heirs of the body" in the Act of Settlement it is important to ascertain the state of the law at the time the Act was passed. It appears that English law did then, and does still, recognise certain impartible inheritances which pass to the elder of two daughters because from the peculiar characteristics of the inheritance it cannot be divided or fall into abeyance; it is submitted that the Crown is one of these impartible inheritances. This aspect of the case is exhaustively examined in Sir Geoffrey Ellis's Memorandum to which the Law Officers and Counsel are referred. It will be sufficient here to mention a few examples.
First the Palatinate Earldoms of Chester and Pembroke, great offices of honour with a jurisdiction (in their own territories) almost royal by their nature impartible.
In the Chester case the Earl's heirs were the two daughters of his eldest sister and his two youngest sisters. The husband of the elder daughter of the eldest sister made a claim in her right to be Earl and that right was never disputed, although her right to succeed to the lands was disputed. In the end, however, both the Earldom and the lands were annexed by the Crown.
In the Pembroke case the Earl died without issue leaving two sisters, and Letters Patent were issued to the grandson of the eldest sister "on the declaration of the skilled persons whom we have consulted that inasmuch as he is descended from the eldest sister the prerogative of the name and honour is due to him".
As a second example the case of "castles for the necessary defence of the realm" may be referred to. Bracton writing of co-heirship in his De Legibus Angliae (Ed. 1569 F 76 Rolls Series Vol. 1 p.604) gives the reasons for such a castle falling within the category of impartible inheritances as "lest the capital mansion should be thus divided into several shares and the severed rights of counties and baronies should be diminished to nothing whereby the realm would fail, which is said to be made up of counties and baronies".
It is submitted that the Crown is an impartible inheritance and that the supreme executive authority must of necessity be vested in one person.
In this connection it is not perhaps irrelevant to refer to the position of Philip of Spain who on his marriage with Queen Mary was regarded in some degree as a "joint sovereign". The position, however, was made clear by the Act 1 Mary Sess. 3 c. 2, which declared Queen Mary the sole executive power in England. Again, William III and Mary II were declared King and Queen, but the Act of 1 Wm. & Mary C.2. settling the succession defined the position by enacting (S.8) "that the entire perfect and full exercise of the Regal Power of Government be only in and exercised by His Majesty in the names of both Their Majesties during their joint lives".
There are moreover, very strong reasons against the view that the Crown could fall into abeyance. In the first place it would be in direct conflict with the well-established rule of common law that "the King never dies" (see Calvin's Case Coke's Reports, Part 7 10 (b) where it is said: "It is true that the King in genere dieth not"): under this rule there must always be a next heir ready to succeed immediately on a demise of the Crown, and consequently anything in the nature of an abeyance would seem to be impossible.
Secondly in the case of a barony the Crown is always there to call a barony out of abeyance if it thinks fit, but if the doctrine of abeyance is to be applied to the Crown, it is extremely doubtful whether there is any authority which could call the Crown out of abeyance. Such a state of affairs could not be dealt with by Parliament for Parliament is constitutionally incapable of functioning without a Sovereign.
With reference to the case of the Lord Great Chamberlain in 1781 on which Mr. Round relies it may be mentioned that the succession to the office of Lord Great Chamberlain came before the House of Lords again in 1902 when the previous decision was substantially followed. In 1907, however, there was an important case, the Lucas Barony Case, which, it is submitted, shows that the office of Lord Great Chamberlain is an office sui generis and that the decision in that case cannot be relied upon as supporting Mr. Round's contention. These cases are examined in Sir G. Ellis's memorandum to which the Law Officers and Counsel are referred.
The history of legislation in this country as to the succession supports, it is submitted, the view that the eldest of two or more daughters succeeds to the throne.
The first Acts dealing with the succession to the Crown were passed in the reign of Henry IV. In that reign the succession was first entailed on the Prince of Wales and the heirs of his body; later on it was thought desirable to exclude the daughters and an Act was passed re-settling the Crown on the King and the heirs male of his body. It was, however, decided again to alter this so as to include the daughters, and the Crown was eventually settled upon King Henry and the heirs of his body (7 Henry IV cap. 2)
The history of Richard III's succession should perhaps be mentioned for the sake of completeness although it does not appear to support either theory. The House of York claimed the throne by hereditary right as being descended from Lionel Duke of Clarence a son of Edward III older than John of Gaunt from whom the House of Lancaster was descended. On the death of Edward V and his only brother, there were living four daughters of Edward IV., and Edward Earl of Warwick, a minor a son of the Duke of Clarence (who was an elder brother of Richard III). If the strict hereditary line had been followed, the four daughters of Edward IV (on Mr. Round's theory as co-parceners) and the young Earl of Warwick should have succeeded in preference to Richard III. It is to be observed that in the Act confirming Richard's title the Crown is offered to him "as to you of right belonging as well by inheritance as by lawful election." In that Act, and also in the Act confirming Henry VII's title the Crown was settled on the King and the heirs of his body. The relevant portions of these Acts are set out in Adams & Stephens Select Documents of English Constitutional History at pp. 173, 207 and 213 respectively.
The next Act is 25 Henry VIII cap. 22 (1533) whereby the marriage of Henry VIII to Catherine of Aragon was declared null and void, consequently illegitimating Mary, the issue of that marriage, and the succession was secured by Section 7 to Henry VIII and the heirs of his body lawfully begotton. An elaborate definition of "heirs of his body" is then given which after dealing in detail with heirs male proceeds as follows:-
"And for default of such sons of your body begotton, and of the heirs of the several bodies of such sons lawfully begotton, that then the said imperial crown, and other the premises, shall be to the issue female between your majesty and your said most dear and entirely beloved wife, Queen Anne, begotton, that is to say: first to the eldest issue female, which is the Lady Elizabeth, now princess, and heirs of her body, lawfully begotten, and for such issue, then to the second issue female, and to heirs of her body lawfully begotten, and so from issue female to issue female, and to the heirs of their bodies one after another, by course of inheritance, according to their ages, as the Crown of England has been accustomed, and ought to go. in cases where there be heirs female to the same; and for default of such issue, then the said imperial crown, and all other the premises, shall be in the right heirs of your highness for ever".
It may, of course, be argued that this elaborate definition was necessary in order to secure that the eldest daughter should succeed; it is to be observed however that inheritance by the eldest daughter and other daughters in succession is expressly declared to be "as the Crown of England has been accustomed and ought to go".
Three years later in 1536 the succession was again the subject to an Act of Parliament, 28 Henry VIII c.7., by which the King's marriage with Anne Boleyn was declared void and Elizabeth illegitimated. The Crown was then settled on his male issue by his wife, Jane Seymour, and by any other lawful wife, and in default of male issue on the female issue in the same terms exactly as the previous Act.
The last of Henry Succession's Acts was 35 Henry VIII c.l. under which the Crown was settled on Edward, Mary, Elizabeth and the heirs of their bodies. In this case there was no elaboration of the expression "heirs of the body" in relation to female issue; having regard to the elaborate definition of that phrase in the two previous Acts, the first of which was passed only ten years previously it was no doubt thought that repetition was unnecessary. It can hardly be the case that the law as to heirship should have changed in so short a time.
Section 6 of this Act gave the King power, if the heirs mentioned should fail, to appoint the Crown by Letters Patent or by Will to any persons he pleased. On Elizabeth's accession an Act (1 Eliz. c.3.) was passed confirming the last-mentioned Act and recognising the title of the Crown to be in her and the heirs of her body without further elaboration.
Under the power given to him to appoint by Will Henry VIII appointed the Crown in favour of the heir of his younger sister, Mary Duchess of Suffolk. On the death of Queen Elizabeth James I came to the throne in defiance of the appointment in Henry VIII's Will, and immediately an Act (1 Jac. I, c.l.) was passed to recognise his title to the Crown. That Act recites that he is lineally, rightly and lawfully descended of the body of the Most Excellent Lady Margaret eldest daughter of King Henry VII and Queen Elizabeth his wife, daughter of King Edward IV, the said Lady Margaret being eldest sister to King Henry VIII, and it was recognised that King James was "our only lawful and rightful liege Lord and Sovereign" and it was declared that the Imperial Crown of the Realm of England "did by inherent birthright and lawful and undoubted succession descend and come to Your Most Excellent Majesty as being lineally, justly and lawfully next and sole heir of the Blood Royal of this Realm as is aforesaid".
The next statutory enactment is the Bill of Rights whereby the Crown is settled on King William III and Queen Mary, and the survivor of them during their lives and after their death to the heirs of the body of Queen Mary, and in default of such issue to Princess Anne and the heirs of her body and in default of such issue to the heirs of the body of King William III.
The last statutory enactment was the Act of Settlement above referred to.
In view of the considerations set out above and in the documents accompanying this case it is submitted -
SUCCESSION TO CROWN
OPINION OF THE LAW OFFICERS OF THE CROWN AND SIR GEOFFREY ELLIS.
The argument which we are asked to consider is based upon the fact that in the descent of land, in the succession to baronies by writ and in some offices of honour the eldest heir female does not succeed as of right. It is therefore said that the phrase "heirs of the body" in the Act of Settlement cannot be construed so as to apply the rule of primogeniture as between females in the succession to the Crown.
Words must always be construed in their context. Even if the word "heirs" had a uniform meaning when applied to rights and offices other than the Crown it does not follow that such a meaning must be applied literally for the purpose of construing the Act of Settlement without any reference to the peculiar Office (i.e. the Crown) with which the Act is concerned. The word has, however, no such uniform meaning, and in our view the attributes of the Crown and the recognised constitutional principles which apply to the position of the Sovereign deprive the analogies attempted to be drawn from other aspects of the law of any real force.
We deal first with the exceptional position of the Crown:
1. It has always been recognised that a woman can succeed to the Throne and be Queen in her own right. The "regall power" is in the Queen's Majesty as fully and absolutely as ever it was in Kings (see 1 Mary Sess. 5 c.l.). This has never been the rule in relation to those Offices Honour which the argument we are considering has analogous in descent.
2. The Crown is, to use the old word, impartible; and therefore its powers and rights are not capable of being exercised jointly. This rule is no doubt derived from the fact that the Crown is the supreme executive authority. The supposed exceptions to the rule are only apparent.
This differentiates the Crown from, for example, rights over land, which can be held jointly, or be the subject of partition. It is worth noting that lands held in fee simple by the Crown were apparently not partible. (Calvin's Case 7 Co. Rep. 12. b.). "After the decease of King Edward the elder daughter Queen Mary did inherit only all his lands in fee simple. For the eldest daughter or sister of a King shall inherit all his fee simple lands." (Coke on Littleton 15. b.).
Philip, the husband of Queen Mary, was in some degree regarded as a joint Sovereign, but in law the Sovereignty was sole and remained in the Queen, even after her marriage. (See Act 1 Mary, Sess. 3. c. 2.). The regal position of William and Mary was unprecedented and anomalous in origin, affording no guidance as to the character of the Office in ordinary circumstances. The Act (1 William and Mary Sess. 2 c. 2) which defined and regulated their position confirms the proposition now being advanced, in that during their joint lives the "Entire perfect and full exercise of the Regall power and Government" -was in and to be exercised by His Majesty in the names of both.
3. "The King never dies", and therefore there can be no gap in the holding of the Crown. (See 7 Co. Rep. 10. b.). On the demise of the Crown there is an automatic succession. This differentiates the Crown from an Office of. Honour, such as the Lord Great Chamberlain, which has for some generations remained in co-heirship. There is a similar differentiation in the descent of baronies by writ which, on the happening of coheirship, fall into abeyance, and so remain until a sole heirship occurs, or the Crown chooses, by nominating one of the coheirs, to terminate the abeyance. Moreover the abeyance need not be terminated. If it be possible to think of the Crown as in abeyance, how, legally, could such an abeyance be terminated?
4. The powers and rights of the Crown as a whole cannot apart from Statute be exercised by deputy. This differentiates the Crown from Offices of Honour, the duties of which can be performed by a deputy appointed by the co-heirship and approved by His Majesty.
Although the exact question has never arisen in its present form, the history of the Succession to the Crown supports the view we hold.
In the year 1290 Edward I married his younger daughter Joan to the Earl of Gloucester, one of his most powerful nobles, and probably having in mind the frequent changes in succession during the century and a half following the death of the Conqueror, compelled the Earl of Gloucester to take an oath that he would be loyal to the King's sons and daughters and would not try to upset the normal succession.
This oath, which was duly recorded, is the first written record of what may be regarded as the proper feudal succession to the Crown. The date is 1290. The record states that the Earl of Gloucester accepted that the Crown should follow the rules of primogeniture for the sons and daughters of the King, and their heirs. Any possibility of co-heirship to the Crown is definitely excluded, since the instrument in question after mentioning the sons of the King, inter alia, prescribes the succession to be in "Dame Alianore, the eldest daughter and the heirs of her body", and her failing to "Dame Joan and the heirs of her body", and failing Joan and her heirs the realm is to remain to her "plus procheyne seur è issi de filie en filie, è de eyr en eyr."
This is the clearest indication of primogeniture for daughters as well as for sons. This instrument is referred to in the Lords' Reports on the Dignity of a Peer, I, p. 205, and is printed in Rymer's Foedera (Ed. 1705), Vol. II, p. 497, "De Successione ad Coronam Angliae" wherein it is stated to come from a copy in a book kept in the Treasury of the Receipt of the Exchequer. There can be no reason for doubting its authenticity.
In the reign of Henry VIII three Statutes were passed dealing with the succession. The first in 1533 (25 Hen.VIII c. 22) contained the following words :-
(iv) at end ..." and for default of such sons of your body begotten and of the heirs of the several bodies of every such sons lawfully begotten, that then the said Imperial Crown shall be to the issue female ... first to the eldest Issue Female and to the heirs of her body lawfully begotten, and for default of such issue then to the second Issue Female and to the heirs of her body lawfully begotten, and so from Issue Female to Issue Female and to the heirs of their bodies one after another .... by course of Inheritance according to their ages as the Crown of England hath been accustomed, and ought to go in cases when there be heirs female to the same."
(Stats. of the Realm, Vo. 3, p. 473.)
The course of female succession is here definitely declared.
In 1536, by 28 Henry VIII c. 7 the Succession is again changed but the reference to female succession is in terms of the previous Act. Finally in 1543 by 35 Henry VIII c. 1. the Succession is fixed in Edward, Mary, Elizabeth and their heirs, in order. The expression "heirs of the body" is used without qualification. With the previous Statutes before the draftsmen, if "heirs of the body" in relation to female succession had been intended to carry a different meaning, express words in that sense would have been inserted.
By his Will Henry VIII sought under statutory authority to disinherit the descendants of his elder sister, Margaret of Scotland, in favour of the descendants of his younger sister the Duchess of Suffolk. In defiance of the Act giving this Will statutory effect, which was still on the Statute Book when King Henry VIII died and had been
confirmed by an Act of Queen Elizabeth (1 Elizabeth c. 3), James I, the descendant of the elder sister, succeeded Elizabeth. On the argument put to us he could have been no more than joint heir with William Seymour. The matter was regularised by the first Act of the new reign, which contained the following words:
"did by inherent birthright and lawful and undoubted succession descend and come to your Moste Excellent Majestie as being lineallie justly and lawfullie next and sole Heire of the Blood Royal of this Reamle."
In other words, traditional feudal descent is relied on as against the statutory bar of Henry VIII's will. Coke, writing in 1628, says as follows:
"But the dignity of the Crowne of England is without all question descendible to the eldest daughter alone, and to her posterity, and so it hath been declared by Act of
Parliament For regnum non est divisible." (Coke on Littleton Ed. 1628 p. 165 )
When in the year 1701 the Act of Settlement was passed it must be presumed that the legislature knew the existing state of the law. The legislation in relation to succession during the reign of Henry VIII, the Act 1 James I, and subsequent legislation in the reign of William and Mary must have been carefully reviewed. The word "heirs" was never in any way qualified and it must be presumed that with the declaratory clauses relating to daughter succession and the statement that James I was "sole" heir the view then held was that "heirs" must be construed to mean that a "sole" heir would succeed to the throne and that when daughters appeared in the succession the rule of primogeniture would be followed. This is also the view accepted by Blackstone (Commentaries I pp.194 et seq.).
While we do not think it necessary to discuss in detail the meaning of the word "heirs" in the context of land, abeyant peerages, offices of honour, and feudal tenures at large, it may be pertinent shortly to review generally not only the single instance of the Lord Great Chamberlainship which is specially referred to, but other successions also of feudal quality.
Examination of the succession to the Lord Great Chamberlainship clearly indicates that no definite rule of law is illustrated and that the office must be regarded as sui generis. Par from being simple like heirship to land, or even susceptible of treatment as an abeyant barony, it is an impartible co-heirship in which the duties are performed by a deputy agreed on by all the members. Its descent has been arbitrarily interfered with by the Crown, who made it the subject of a personal award which later was validated by Act of Parliament. It has also been held subject to the doctrine of possessio fratris, and has been regarded partly as a dignity and partly as an office of profit. There can be no real analogy between such a succession and that to the Crown.
Moreover there is little real analogy between the Chamberlainship succession and those of the other feudal heirships referred to.
In all these feudal heirships a definite rule of succession obtained. When females appeared in the succession the sole right was in the eldest. In the case of her having a husband or a male heir of full age these filled the succession. Otherwise she could appoint a deputy. The true view is that the eldest daughter succeeds, notwithstanding her disability personally, to perform the feudal obligations. There never was admitted a possibility of co-heirship. Impartibility and personal responsibility were essential for the proper discharge of feudal obligations.
Two outstanding examples are the Palatinate Earldoms of Chester (1237) and Pembroke (1339) both as near to Royalty as any feudal honours could be in England. In both cases disputes arose on the partition of lands. In the Chester case the right as set out above of the eldest co-heir in the Earldom was never questioned and in the Pembroke case the regalia and title of Earl Palatine are expressly bestowed on the eldest co-heir by the Crown the principle involved being clearly stated in the Letters Patent. For the purposes of reference it may be convenient to cite the authorities which deal with these cases. For the Earldom of Chester see Knyghton's Chronicle C. XXXV: Coke on Littleton: Parceners 165. Cruise on Dignities Vol. I, p. 181; Lords' Reports on the Dignity of a Peer III. p.130; Round's Peerage and Pedigree Chapter on the "Muddle of the Law", (Vol. I. pp. 128 et. seq.). For the Earldom of Pembroke see Earldom of Norfolk Claim 1906: Speeches of Counsel p. 55; Lords1 Reports on the Dignity of a Peer III. 180, 181. The same rule of succession was always applied to the descent of the Capita of Earldoms and baronies, and certain important castles. (See the Barony of Lucas Claim, Petitioner's case with Appendices).
The remaining three Great Offices of Honour - Marshal, Steward and Constable - have all been the subject of dispute. These descents were also discussed in detail in the Lord Great Chamberlain Case, 1902, the Earldom of Norfolk Case, 1906, the Barony of Lucas Case, 1907, and the Earldom of Oxford Case, 1912.
So long as feudal heirships subsisted the Offices of Steward and Marshal followed the rule of succession applicable in Palatinate Earldoms and the capita of earldoms and baronies. The office of Constable was in question as late as 1515 being referred to the House of Lords and all the Judges by King Henry VIII. (3 Dyer 285b, reprinted 73 Eng. Reps. 640 Sir W. Jones Reps. 124, reprinted 82 Eng. Reps. 66.). The Judges found that the office was subject to the eldest daughter rule of succession termed generally jus esneciae or droit d' ainesse It is to be noted that this decision is strongly controverted by J, H. Round (Peerage and Pedigree, Vol. 1, pp. 147 et seq.) who holds that the true facts were never before the Judges and that the Office was purely tenurial, and that the lands concerned were in several hands. Round does not controvert the principle of the eldest daughter succession in general to offices of Honour and to the capita mentioned.
This principle of eldest daughter succession is clearly embodied in the patent creating the Lucas barony and the Act of Parliament confirming the same, and was accepted by the Committee for Privileges in the Barony of Lucas Case, 1907, as a definite illustration of the course of succession which the descent of the barony must follow. It is to be noted that this case was heard five years after the Chamberlainship case of 1902, and that in the interim new research had been prosecuted.
It is clear to us that quite apart from the special nature of the Crown, the word "heirs" in general and in many of the descents we have reviewed has no uniform meaning. This bears out the rule of law that words must be construed by giving them that meaning in the English language which is applicable to the subject matter to which they relate.
We are not asked to advise on the position which would arise if on the death of a King leaving one or more daughters the Queen were pregnant. If the pregnancy terminated in the birth of a son he would be the heir. If no previous statutory provisions for dealing with the interim period between the death and the end of the pregnancy had been made, reliance would have to be placed on the inherent power of the Constitution to make necessary provisions to meet unprecedented circumstances hitherto unprovided for.
Subject to this last point, we are of opinion that in the event of the demise of His present Majesty, without issue male, leaving two or more daughters him surviving, the Crown would descend to the eldest of those daughters.
T. J. O'CONNOR
Law Officers' Department.
24th March, 1937.
The Succession. Question of posthumous issue.
Fds case & opinion of Law Officers & Counsel.
MINUTESThis Case and the Opinion of the Law Officers and Sir Geoffrey Ellis thereon deal with a question which is of legal and historical importance, notwithstanding that the contingency with which the Opinion deals is one which is most unlikely to arise. The Law Officers advise that in the event of the birth of a posthumous son of His Majesty the son would succeed to the Throne if at the demise of His Majesty there were no living male issue of His Majesty. This is the effect of their affirmative answer to the question actually put to them in the Case; but, as they point out in their Opinion, there is a further question to consider, viz. what would be the position without further legislation if when a reigning King dies, there is a possibility of a posthumous son being born who would succeed. If in existing circumstances the King were to die Princess Elizabeth would become Queen, subject to the rights of a posthumous male Heir. If such an Heir were subsequently born, he would, in the absence of legislation, succeed to the Throne and the reign of Elizabeth as Queen would thereupon cease during her lifetime - a position which, as the Law Officers point out, is an anomalous one. The Law Officers do not express any definite view as to whether there should be legislation to avoid the possibility of a reign terminating in this way on the birth of a posthumous child. They merely say that there is something to be said for such a provision being made, particularlv if the Heir or Heiress Presumptive were of full age.
The Law Officers then deal briefly with a further point not actually put to them, viz. whether legislation is necessary to authorise the succession as specifically provided for in the Regency Act, 1830. That Act provided that the Heiress Presumptive (Princess Victoria)should ascend the Throne as Queen with a saving for the rights of a male posthumous Heir. The Law Officers recognise that such legislation might now be thought to be undesirable - as indeed it would be having regard to the constitutional position of the Dominions- and come to the conclusion that the precedent of 1830 and the principle on which it was based would be sufficient authority for the succession of the Heiress Presumptive subject to defeasance if the male Heir were born.
On the question of the form of Accession Proclamation to be used in the event of the death of His present Majesty leaving his widow surviving Him,the Law Officers advise that as a matter of propriety rather than of law the Proclamation should indicate the possibility of the accession of a posthumous son by a saving of the rights of such a son.
The points on which legislation might possibly be required are therefore:—
In the light of the views expressed by the Lav Officers and (as regards (l) above) by the Dominions Office, it seems clear that in existing circumstances no legislation should be contemplated. If so, the only action required for the time being is to note that in certain events, as indicated at x1 above, the D.O. require the earliest possible intimation of the position if and when there is good reason to expect that this question might become a practical problem. I think this means in effect that if at any time the Queen is expecting another child, we most tell the Dominions Office at once in order that they may start informal consultations with the Dominion Governments in order to see whether they agree that legislation is not required in order to deal with the contingency.
O. F. D. 10/12/37
I have mentioned this to Sir H. Boyd who does not think it possible for him to ask - however informally - for any specially early information to be given in the event of another child being expected.
The L.O.O. was obtained at the instance of the Privy Council Office, and Mr. Leadbitter tells me that the question of legislation was discussed by the Lord President with the Prime Minister and the Secretary of State for the Dominions and it was agreed that no legislation should be introduced at present.
Sir O. Dowson suggests however (see note within addressed to me) that there is still a question to be decided (probably in the negative), namely, whether a decision should now be reached by interdepartmental discussion as to whether any (and if so what) legislation would be needed if another child was expected.
If this question is to be taken up, I think the India Office (which has not, so far as I have been able to ascertain, been approached on the matter) should be represented in the discussion. But the contingencies contemplated seem so remote that probably it is inadvisable to embark on such discussion.
? Say to Sir Grattan Bushe that if and as soon as we have at any future time good reason to expect that the question might become a practical problem we will communicate with them - and that in the meantime it appears to be neither necessary nor expedient to embark upon any interdepartmental discussions as to any legislation that might become necessary in the circumstances contemplated.
(Sir O. Dowson agrees to this reply.)
see also ./17
SoS to see
I agree. I will speak personally to Sir A Hardinge about this and get from an informal understanding to let us know if and when the contingency arises
Case for the Opinion of the Law Officers and Counsel with Opinion
dated 23 July, 1937
T. & M. 21646
It is the custom immediately after the accession of a Sovereign to prepare all the necessary documents which will be required upon the next accession and the Privy Council Office is now preparing the Proclamation of the accession of the next Sovereign. It is possible that His Present Majesty may die without leaving any male issue living at bis death, but that a son might be born to him posthumously. The Law Officers and Counsel are therefore asked to advise whether, having regard to that possibility, the draft Accession Proclamation now in course of preparation, should contain a saving of the rights of a posthumous son.
In considering this question it is necessary, it is submitted, first to ascertain whether a posthumous son would have any rights. If he would have no rights, the question of a saving in the proclamation would not arise ; if he would have rights, then the question arises as to whether or not notice thereof should be given in the Accession Proclamation.
A case of a posthumous heir to the English Throne has not arisen since the Norman Conquest and there is therefore no actual precedent on the subject ; it was, however, much discussed on the accession of King William IV as at that time he had no living issue. The view which was held by lawyers at that time, and the view on which the Regency Act of 1830 was based, was that the posthumous child would be entitled to succeed to the Throne on his birth, but that in the interval between the demise of King William IV and that date, the heir presumptive, Princess Victoria, would be entitled to the Throne. This view was based on analogy to the law of succession to real estate ; this analogy was justified on the ground that both the Crown and freehold land have the same essential characteristic that in neither case can there be an abeyance. Moreover, it was supported by the case, which was decided on the same principle, of the succession of Arthur, posthumous son of Geoffrey Duke of Brittany and grandson of Henry II, to the Duchy of Brittany.
On the introduction of the Regency Bill in the House of Lords the Lord Chancellor (Lord Lyndhurst) made a statement on the law as to the rights of posthumous issue of King William IV. The Law Officers and Counsel are referred to this statement which is set out in Parliamentary Debates, 3rd Series, Vol. 1. 500 et seq.
The following extracts from the statement are for convenience set out here :—
"In that case (i.e. in the case of the birth of a posthumous child), My Lords clearly and without the possibility of controversy, that child, whenever its birth took place would instantly succeed to the Throne. Of that there is no doubt whatever."
" We are, therefore, driven to the necessity of considering the subject with reference to what appears to be the general principle of our own law. The descent of the Crown follows the descent of real property, in most respects, except where there are two daughters, in which the real property is shared between them. It becomes, therefore, important to inquire what happens with respect to a posthumous child entitled to real property. My Lords, it has been settled in the Courts of Justice of this country, that such a child, before it is born, cannot be seized of such property. The right to enjoy and possess it is in the presumptive heir. He has the whole interest in it, from the death of his predecessor until the birth of the child. That precisely the same doctrine stands good with respect to the Crown I will not assert with confidence ; but this principle is undoubtedly common to both ; namely, that there can be no abeyance—that there can be no vacancy. The King never dies. There must always be a Sovereign : the principle applied to real property is applicable to the Crown. The child unborn cannot be seized of the Crown : it must devolve for the time to the Presumptive Heir. My Lords, I know that this is only reasoning from analogy. I submit it as such only to Your Lordships' consideration."
"In considering all the bearings of a question so difficult and complicated, I have felt it my duty to consult all those learned men who are the official advisers of the Crown, and they one and all concur in that view of the question which I have now endeavoured to explain to Your Lordships, and agree in the opinion that there are no cases on record by which we can regulate our decision, but that we must guide ourselves by reasoning from analogy, and by reference to those laws regulating the descent of real property, to which I have already called Your Lordships' attention."
On the third reading of the Bill the Lord Chancellor (then Lord Brougham) made a further statement on the legal position and discussed the precedent of the succession to the Duchy of Brittany on the death of Geoffrey son of Henry II who died leaving a daughter Eleanor and his widow enceinte with a son. Col. 764 et seq. On Geoffrey's death two rival claims were made for the wardship of his daughter Eleanor, one by the King of France, and the other by Henry II as Duke of Normandy. Both claimants acknowledged Eleanor to be Duchess of Brittany though her mother was enceinte at the time. Both admitted that allegiance was due, not to the child in ventre sa mere, but to the eldest born child of Geoffrey to whom, as in cases of real property, the possession at once passed. Both at the same time admitted that that right was defeasible at once and instantaneously defeasible by the subsequent birth of a child if that child should happen to be a son. On the birth of Arthur the defeasance of Eleanor's title took place and at once put an end to the dispute between Henry II and the King of France. The Lord Chancellor regarded the discovery of that precedent as removing all doubts and obviating all objections.
For authority to support Lord Lyndhurst's statement of the law with respect to real estate the Law Officers and Counsel are referred to the chapter on the entry of a posthumous heir in Watkins' Law of Descents, 2nd Edition p. 198 et seq. and also to Co. Litt. (Ed. 1832 11 B. (Note 59 ) & 55 B. (Note 369) ) ; Shelleys Case, (1 Co. Rep. 93) and Richards & Richards (John) 754 per Vice Chancellor Sir W. Page Wood 762.
The following extract from Watkins may usefully be stated here as giving a correct statement of the law.
" By the feudal law the freehold could not be vacant, or, as it was termed, in abeyance : there must have been a tenant who was capable of fulfilling the feudal duties, and against whom the right of others might be maintained. An infant in ventre sa mere was not, on these occasions, considered as in esse, and, consequently, could not be considered as a tenant. On the devolution, therefore, of an estate, the then born person who was, at such devolution, entitled (as, for instance, the brother of the deceased), was permitted to succeed; and though the issue, while in ventre sa mere, was not regarded as in esse, yet (when afterwards born) as it was the person whom the law would have pointed out to enjoy the inheritances of his father, had it been in esse when he died; and as the reason for the entry of the uncle had now ceased, since the issue became capable of holding the hereditaments descended, and of fulfilling those duties by his guardian, such issue was permitted to enter upon the uncle, and to enjoy the estate."
Apart from the express declarations of the intentions of the framers of the Regency Act it is apparent from the Act itself that it was based on the view of the law expressed by Lord Lyndhurst. Section 1, which provides for the Duchess of Kent to be guardian of Princess Victoria if William IV should die without issue living, provides that if a child of William IV is born the powers of the Duchess of Kent should cease upon the birth of such child, which is an indication that Victoria would cease to be Queen upon the birth of such child. Section 2 relates to the Proclamation of Princess Victoria and provides that she should be proclaimed subject to and saving the rights of any issue of His Said Majesty which may afterwards be born of Her Said Majesty. Section 3 provides that if a posthumous child of William IV is born the Queen shall be the guardian and have full power in the name of such child (who would be the Sovereign) as Regent to exercise the regal power and government of the Realm. Section 4 provides that on the birth of such child he should be immediately proclaimed as the successor entitled to the Crown of these Realms ; the last-mentioned words are a clear statement that the posthumous child was entitled to succeed to the Throne in the place of Victoria.
It is submitted that the view as to the rights of posthumous issue of William IV to succeed to the Crown expressed by Lord Lyndhurst was the correct view, and still obtains at the present time. It is the only view which is both consistent with the constitutional doctrine that " the King never dies " and with the ordinary law of succession to real estate. The only alternative which would be consistent with the constitutional doctrine that " the King never dies " would be that the presumptive heir would be entitled to the Throne to the exclusion of the posthumous son by way of analogy to the law of contingent remainders before the Act of 10 & 11 William IV, c. 16. It was the rule that the remainder man must be able to take the estate the moment the previous interest determined ; a child in ventre sa mere who, if he had been born before the determination of the previous interest, would have been entitled to the remainder was not considered as in esse for that purpose and consequently lost his interest altogether. That rule, however, only applied where the remainder man took by purchase and not by descent, and it is submitted that it could not apply in this case as the posthumous son clearly takes by descent. In the present case, therefore, it is submitted that Princess Elizabeth would be entitled to succeed to the Throne on the demise of His Present Majesty, but that a posthumous son would be entitled to succeed to the Throne on his birth in her place.
If the Law Officers and Counsel are of opinion that a posthumous son would have rights to the Throne the question arises as to whether any saving of those rights should be inserted in the Accession Proclamation which is now to be prepared.
Queen Victoria was proclaimed Queen " saving the rights of any issue of His Late Majesty King William IV which may be born of His Late Majesty's Consort ". This case is not an exact precedent because the Regency Act 1830 Section 2, specially directed that she should be so proclaimed. Before the accession of Queen Victoria the last occasion on which the question of posthumous issue might have arisen was on the accession of James II. Charles II died without leaving legitimate issue and was survived by his widow. The Proclamation of the accession of James II, however, recites that the Crown came to him " as the only brother and heir " of Charles II, and there was no saving for any posthumous issue of the late King.
The Accession Proclamation has, it is submitted, no legal effect; it is merely a formal announcement to the people of the new accession. It is possible on the one hand to argue that it is not necessary to refer to the rights of the posthumous son because the fact that no reference was made would not in any way affect the rights of that posthumous son on his birth. On the other hand, it is arguable that if the posthumous son has rights, notice of those rights should be given and the contingent nature of the succession by the presumptive heir should be officially proclaimed. This would be in accordance with the precedent of the Proclamation of Queen Victoria ; although that case was specially regulated by statute it was obvious that the framers of the Regency Act thought it proper that the Proclamation should contain the saving which the Statute directed.
There is one further question to which the Law Officers' and Counsel's attention should perhaps be drawn, and that is, as to whether a divesting of the right of the presumptive heir by the birth of the posthumous son would be a demise of the Crown. It is thought, however, that this is a question which can more properly be dealt with if and when the possibility of the succession of a posthumous child seems likely to arise.
A copy of the Proclamation of the Accession of Queen Victoria is enclosed with the Case.
THE LAW OFFICERS AND COUNSEL are accordingly asked to advise :—
WHEREAS it has pleased Almighty God to call to His Mercy our late Sovereign Lord King William the Fourth, of Blessed and Glorious Memory, by whose Decease the Imperial Crown of the United Kingdom of Great Britain and Ireland is solely and rightfully come to the High and Mighty Princess Alexandrina Victoria, saving the Rights of any Issue of His late Majesty King William the Fourth which may be born of His late Majesty's Consort; We, therefore, the Lords Spiritual and Temporal of this Realm, being here assisted with these of His late Majesty's Privy Council, with Numbers of other Principal Gentlemen of Quality, with the Lord Mayor, Aldermen, and Citizens of London, do now hereby, with one Voice and Consent of Tongue and Heart, publish and proclaim, That the High and Mighty Princess, Alexandrina Victoria, is now, by the Death of our late Sovereign of Happy Memory, become our only lawful and rightful Liege Lady Victoria, by the Grace of God, Queen of the United Kingdom of Great Britain and Ireland, Defender of the Faith, saving as aforesaid: To whom, saving as aforesaid, we do acknowledge all Faith and constant Obedience, with all hearty and humble Affection; beseeching God, by whom Kings and Queens do reign, to bless the Royal Princess, Victoria, with long and happy Years to reign over us.
OPINION OF THE LAW OFFICERS OF THE CROWN AND SIR GEOFFREY ELLIS
1. We have no doubt that the answer to this question is, Yes. It remains however to consider what would be the position without further legislation, if when a reigning King dies there is a possibility of a posthumous son being born who would succeed. The Regency Act, 1830, provided that the Heiress Presumptive should ascend the Throne as Queen with a saving for the rights of a male posthumous Heir. If such an Heir had been born he would have succeeded and the somewhat anomalous position would have arisen of the Queen's reign terminating in her lifetime. The debates in the House of Lords show that this was regarded as putting into legislative form the result arrived at by a consideration of feudal law and the special position of the Crown. Reference is made to the descent of real property, but we are of opinion that the real basis is that also referred to by Lord Lyndhurst on introducing the Regency Bill, namely, that there can be no abeyance and no vacancy in the holding of the Office. We think that this is a basis which is sound in law. We have considered the documents dealing with the Brittany case to which Lord Brougham referred on the Third Reading of the Bill, but we doubt whether any true analogy can be drawn between that case and the question of succession with which Lord Brougham was dealing.
It is worth noting that twice in France in similar circumstances the Heir Presumptive did not ascend the Throne but was declared or appointed Regent with full powers. In Spain in 1885 the Queen Mother was appointed Regent of the Kingdom and although there were two daughters living and another child expected no successor was designated until the expected child was born. Accession to the Crown, possibly for only a few weeks, may well have been thought dangerous for the safety and wellbeing of the Kingdom and an exceptional form of Regency was therefore resorted to, being as it were a Regency not for an individual incapable of exercising the powers, but for the Crown itself, until it could be determined who would prove to be the lawful successor. It could not, we think, be suggested that this was inconsistent with feudal law, but we are clear that no such halt in the succession could arise in this country unless Parliament expressly so provided.
No doubt there is something to be said for a provision which would avoid the possibility of a reign terminating on the birth of a posthumous child particularly if the Heir or Heiress Presumptive were of full age.
It remains to consider whether legislation is necessary to authorise the succession as provided for in the Act of 1830. It might be said that as Parliament legislated and legislated ad hoc in 1830 there should be legislation now. We are however of opinion that if this is felt to be undesirable the precedent of 1830, coupled with the principle referred to on which we think it is properly based, would be sufficient authority for the succession of the Heiress Presumptive subject to defeasance if the male Heir were born.
In section 2 of the Regency Act of 1830 it was thought necessary to add words to the Oath of Allegiance saving the rights of the possible posthumous issue of King William IV, and we have considered whether such words are necessary to be added. If so this could only be done by legislation amending the Oath. The words of the existing Oath cover the Heirs and Successors of the Sovereign to whom the Oath is taken. "Heir" may be an inapt word to describe the relationship between the Heiress Presumptive and the posthumous son, but we think the words " Heirs and Successors " should be construed generally as covering those who succeed to the Throne as heirs in right of their place in the succession. We do not therefore think as a matter of law that the words require amendment. If the events contemplated happened it would no doubt be more satisfactory if there were legislative provision on the Statute Book for them. We are however of opinion that in the absence of legislation no insuperable legal difficulties would be created either in the succession or with regard to the form of the Oath.
2. Succession to the Throne is a question of law and the Proclamation can clothe the new Sovereign with nothing beyond that which the law allows him, but the Proclamation is intended to declare to the People who is the successor of the late Monarch and so to whom their allegiance becomes due. In our opinion therefore the Proclamation should indicate the possibility by a saving of the rights of the son as a matter of propriety rather than of law. The terms of the Proclamation of Queen Victoria appear to be sufficient indication of the possible limitation on the duration of the reign by the birth of a posthumous heir. The question whether there was any possibility of a son being born would have of course to be considered at the time.
D. B. SOMERVELL.
T. J. O'CONNOR.
Law Officers' Department,
23 July, 1937
25th February, 1938.
My dear Bushe,
Your letter to me of the 2nd November last about the question of legislation to deal with the position of a posthumous Heir to the Throne has been under consideration here for some time past; and I am now in a position to send you a reply.
I can give you an assurance that if and as soon as we have at any future time good reason to expect that the question might become a practical problem we will communicate with you.
In the meantime it appears to be neither necessary nor expedient to embark upon any interdepartmental discussions as to any legislation that might become necessary in the circumstances contemplated; and we agree generally with your view that it is desirable to avoid any legislation on this subject which might require the assent of all the Dominions.
(Sgd.) O. F. DOWSON
Sir Grattan Bushe, K.C.M.G., C.B.
House of Lords,
19th October, 1948
In his letter of the 12th October (687512/23) Dadd wrote to Hunt about the contemplated draft of Letters Patent granting the style of Royal Highness with the titular dignity of a Prince or Princess to the children who may be born to Princess Elizabeth. I enclose a draft showing how I think the Letters Patent should run, on the assumption that the instructions are substantially in accordance with Dadd's letter.
I should like to know whether you have any criticisms to make on this draft. It appears from the letter that the children in question are to be Princes or Princesses. In view of the wording of the Patent of 30th November, 1917, I do not think they would be unless the proposed Patent makes them so. The draft • is intended to have this effect.
I am sending a copy of the draft to Sir Alan Lascelles and telling him that I have sent it to you for any criticisms which you may have.
H. A. Strutt, Esq., C.V.O.
GEORGE THE SIXTH by the Grace of God of Great Britain, Ireland and the British Dominions beyond the seas King Defender of the Faith To all to whom these prostata shall come Greeting Whereas His late Majesty King George the Fifth by Hie Letters Patent dated the thirtieth day of November in the eighth year of His Reign did declare His Royal Pleasure that certain members of the Royal Family therein more particularly mentioned should have the style title or attribute of Royal Highness And Whereas We are desirous of defining and fixing the style and title by which the children of [the marriage] of Our Most dearly beloved Daughter Her Royal Highness Princess Elizabeth Alexandra Mary Duchess of Edinburgh [and his Royal Highness Prince Philip Duke of Edinburgh] this shall be designated And Whereas for that purpose We deem it expedient that the aforesaid Letters Patent should be amended and extended la manner hereinafter declared Now Know Ye that in the exercise of our Royal and undoubted prerogative and of our especial grace We do hereby declare Our Royal Will and Pleasure that the children of the [aforesaid marriage] shall have and at all times hold and enjoy the style title or attribute of Royal Highness sad the titular dignity of Prince or Princess prefixed their respective Christian names in addition to any other appellations and titles of honour which may belong to them herafter And we do further declare Our Will and Pleasure that our Earl Marshal of England or his Deputy for the time being do cause Our letters or the Enrolment thereof to be recorded in Our College
20th October, 1948.
Thank you for your letter of yesterday and for the draft of Letters Patent relating to the style and dignities of Princess Elisabeth's children.
We have now had the formal instructions from the Prime Minister and it is definitely the case that the children are to be Princes or Princesses. I agree with you that they would not be but for the proposed Patent and I am satisfied that the draft does what is intended. But there is a point on the draft on which Lascelles and I have had some conversation and on which we are agreed. The children are the children of the Duke of Edinburgh as well as of Princess Elizabeth and I think it would be preferable that the name of the father as well as of the mother should appear in the document. I suggest that this might be done by inserting a reference to "Our dear son in law" etc. after Duchess of Edinburgh and later on by the substitution for the words "The Princess Elizabeth" of something like "Our Most dearly-beloved Daughter and Son in Law."
I hope you will agree with these comments and be able to give effect to them and that the Letters Patent can be prepared as quickly as possible.
SGD: H.A. STRUTT.
The Hon. Sir Albert Napier, K.C.B.. K.C.
H. A. Strutt, Esq., C.V.O.
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