Lord Chancellor’s Office
3445/35/
Begins : 1949
Royal Marriages Act, 1772
Proposed amendment
of. Note by the Lord Chancellor on the
construction of.
BUCKINGHAM
PALACE
CONFIDENTIAL
My dear Napier
You doubtless saw the
leading article entitled "Royal Marriages" in the "Times" newspaper
of last Saturday.
Could you, at your
leisure, let me know whether the suggestion at the end of this article
(that
the Royal Marriage Act be amended by the substitution of George V for
George
II) has ever been considered; and whether there would be any
constitutional or
legal objections to such an amendment being made.
There is, of course,
no immediate hurry about this.
Yours sincerely,
A.
Lascelles
The Honourable
Sir Albert Napier,
KCB., House of Lords.
I did indeed see the
leading article entitled "Royal Marriages" in the "Times"
of the 23rd July. I am glad that in your letter of the 25th July you
give me
time to answer your questions. In order to find out whether the
suggestion for
amending the Royal Marriage Act has ever been considered, I must
enquire of the
Home Office and the Privy Council Office.
A.E.A. Napier
The Right Honourable
Sir Alan Lascelles,
G.G.V.O., K.C.B.,
C.M.G., M.C.
Dear Wagner,
I was interested in
your letter on Royal Marriages which Appeared in the "Times" of the
25th July. I notice that you treat the Royal Marriage Act an applying
only to
British subjects, or as being only important in relation to British
subjects. I
had an idea that people who are not British subjects from time to time
apply
for consent to their marriages under the Act, and I should be
interested to
know how the problem can be confined to British subjects.
A.E.A. Napier
A. R. Wagner, Esq.
Anthony Wagner
Queen
Aw/NN.
The Honourable Sir
Albert Napier, K.C.B.,K.C.,
House of Lords,
S.W. 1.
Dear Napier,
The implication that
the Royal Marriage Act applies only to British subjects was that of the
Times leader
writer. I did not wish
and should not
be competent to discuss the legal aspect of the matter or the merits of
amending the Act. All I wanted to do was
to question what seemed to me to be a false premise of his argument
namely that
there would now be enormous difficulty in tracing all those descendants
of
George II who were British subjects or even those who were not. But I
think that as a matter of fact (I have not
unfortunately the text before me)
the Act excludes from its provisions descendants of British Princesses
married
to Foreigners. If that is the case, the
great majority of George II's descendants are not affected by it
whether they
be British subjects or not.
On the other hand some
few foreigners, namely those descended from George II in the male line,
are
affected by it e.g. the descendants of George III's son, the Duke of
Cumberland.
I should be very glad
if you could tell me that I am right in
this understanding of the Act.
Yours sincerely,
Anthony R. Wagner.
Dear Wagner,
Many thanks for your
letter of the 29th. July about the Royal Marriage Act. I will write to
you
again if I have anything to say which might interest you.
Yours sincerely,
A.E.A. Napier
Anthony Wagner, Esq,,
Royal Marriage act,
1772.
I attach a copy of a
letter that I received from Lascelles. I cannot find any papers which
show
whether the suggestion contained in his letter has ever been
considered. I
wonder if you could at some time let me
know this, and whether in your opinion there would be any
constitutional or
legal objections to such an amendment being made.
Sir Eric Leadbitter, C.V.O.
Royal Marriage Act,
1772.
I attach a copy of a
letter that I received from Lascelles. I cannot find any papers which
show
whether the suggestion contained in his letter has ever been
considered. I
wonder If you could at some time let me know this, and whether in your
opinion
there would be any constitutional or legal objections to such an
amendment
being made.
L. S. Brass, Esq.
C.B.E.
Privy Council Office,
Dear Napier,
Thank you for your
letter of August 3rd about the Royal Marriages Act, 1772.
So far as I know the amendment proposed by
the "Times" has not been suggested before. At
the time of the marriage of Princess
Frederica of Brunswick to the then Crown Prince of Greece in 1938, the
Foreign
Office raised semi-officially the question of excluding all foreigners
from the
operation of the Act, and an alteration of the law in some unspecified
way
seems to have been tentatively proposed by Hardinge to Howorth in 1941. For various reasons, neither occasion was
considered propitious for going further into the matter and it was
allowed to
drop.
If a change is made
something on the lines suggested by the "Times" would seem to be a
reasonable compromise, but two points which need consideration would
arise in
the case of any amendment of the Act. It
seems not unlikely that the Act might be held to form part of the law
touching
the Succession to the Throne. If so the
assent of the Parliaments of the Dominions would be required under the
Statute
of Westminster. In addition to this, the introduction of legislation
and the
publicity that would follow might draw attention to cases in which the
need for
Consent had been overlooked or ignored. The
only ones of which we have any knowledge affect foreigners.
There may,
however, have been others,
and if any descendants were living here or -I
suppose - in the Dominions or Colonies doubts might be raised about.the
legitimacy of the issue of the marriages and the succession to
property..
Yours sincerely,
E.
Leadbitter
The Honourable
Sir Albert Napier,
K.C.B., K.C.,
Lord Chancellor's
Department,
House of Lords.
Thank you for your
letter of the 5th August about the Royal
Marriage Act, 1772. It is useful to have
the warning about the Statute of Westminster and the cases in which the
need
for consent has been overlooked or ignored.
I suppose that it
would save
Sir
EricLeadbitter, C.V.O.
BUCKINGHAM
PALACE
My dear Napier,
On the 28th July,
1949, you very kindly undertook to find out for me what the
possibilities are
of amending the Royal Marriage Act of 1772, as proposed in the
"Times" leader of 23rd July, 1949 -namely by substituting the name of
King George V in the Act for that of King George II.
I cannot trace any
result of your researches, and if you could now let me have, at your
leisure,
your opinion on the matter I should be very grateful.
Yours sincerely,
A.
Lascelles
The Honourable
Sir Albert Napier,
KCB.,KC.,
Lord Chancellor's
Office,
House of Lords.
I am afraid I must
answer your letter of the 24th January in a white sheet. On
It is difficult to say
that it would not be an improvement on the present position if the Act
were
amended by the substitution of "King George the Fifth" for "King
George the Second". Leadbitter's points do not seem to be in themselves
insuperable objections.
One point for
consideration is how strong the case is for amending the Act instead of
repealing it. We should have to show positively that the proposed
emending Bill
was serving some useful purpose in modern times and was the best way of
obtaining that purpose.
I will write to you
again.
A.E.A.N.
The Right Honourable
Sir Alan Lascelles,
G.C.V.O., K.C.B., C.M.G., M.C.
I enclose a copy of a
letter which I wrote to you on
At the same time that
I wrote to you I also wrote to Leadbitter and I enclose a copy of his
letter to
me of
What do you think I
could usefully tell Lascelles when I write again?
A.E.A.N.
Sir Leslie Brass, C.B.E.
BUCKINGHAM
PALACE
My dear Napier,
Since writing my
letter of 24th January and receiving your reply of 25th January, I have
received from the author, Mr Farran, the enclosed reprint of an article
on The
Royal Marriages Act 1772 in the Modern Law Review 1951.
The burden of this is that the Act has no
present application to any member of the Royal Family with the possible
exception of Captain Alexander Ramsay.
As I understand it,
his argument is roughly as follows. Under
the exception given in Section 1, 'the issue of princesses who have
married, or
may hereafter marry, into foreign families' are exempted -from the
provisions
of the Act. He contends that the issue
of Princess Charlotte and of Queen Victoria (had she married while
still a
Princess) would have been exempted by this provision: and that the
issue of
Princess Elizabeth and the Duke of Edinburgh are also excluded on the
grounds
that she is a princess who has married into a foreign family,
naturalisation
not being regarded as cutting off the individual from his family. He also argues that all descendants of King
Edward VII and King George V are also exempt, as Queen Alexandra's
forebear
Princess Louise (youngest daughter of George II) married King Frederick
VII of
In his final two
paragraphs, he suggests that the Act should be repealed, and new
legislation
substituted, confined to the descendants of King George V.
This would not provide that marriages made
without the consent of the Sovereign should be declared criminal or
void, but
that a descendant making such a marriage should forfeit all title to
the throne
for himself and his issue.
Whatever the merits of
this thesis may be, it seems evident that the Act is not well drafted,
- there
being general agreement as to the unworkability of the penal clause
(Section 5)
- and that it may not accord with modern requirements.
It may be of incidental interest to quote Dr
Johnson's opinion of the Bill, - recorded on p. 144 of Vol.II of
Boswell's Life
edited by Croker in 1831 - which I found attached to our copy of the
Act in
Lord Stamfordham's handwriting. The
Doctor is recorded as disapproving of the Bill because 'I would not
have the
people think that the validity of marriage depends on the will of man
or that
the right of a King depends on the will of man. I should not have been
against
making the marriage of any of the Royal Family without the approbation
of King
and Parliament highly criminal'. This
was apparently the position at Common Law before the passing of the Act
(see
note 12 on p.54 of the reprint).
Yours sincerely,
A.
Lascelles
The Honourable
Sir Albert Napier,
KCB.,KC.
THE ROYAL
MARRIAGES ACT,
1772 (1)
In 1986 an American divorcee, Mrs. Simpson, brought the Royal Marriages Act to the public notice. Although on that occasion it was probably not applicable, as it is extremely unlikely that it applies to the reigning sovereign,(2) the Act came in for considerable criticism.(3) The purpose of this article is to show that it can be criticised on the fundamental ground that it no longer applies to any member of the Royal family in anything like close proximity to the Crown, if indeed, it now applies to anyone.
Early in 1950 another American divorcee, also called Mrs. Simpson, married in America another descendant of George II, the third Marquess of Milford Haven.(4) It appears that no formal consent of the King in Council was given to this marriage.(5) Since it was decided in the Sussex Peerage Case (6) that the mere fact that the marriage took place abroad is not enough to take it out of the statute, the validity of the marriage must depend upon the Marquess coming within the exempting clause, ' other than the issue of princesses who have married, or may hereafter marry into foreign families '.(7) While there can be no possible doubt that he does so, as his descent from King George II is through such a princess,(8) it is suggested that these words of exemption are so loosely drafted that they exclude the majority of the living members of the Royal family from the operative portions of the Act.
The Royal Marriages Act was passed—not without protests(9)—at [54] the urgent recommendation of King George III, whose younger brothers had recently made what he considered to be unsuitable marriages,(10) as he feared that his young sons might do even worse.(11) It appears to have been drafted with excessive celerity and insufficient attention to then comparatively remote contingencies, which have, in the writer's view, now occurred.
The Preamble recites, ' that marriages in the royal family are of the highest importance to the State, and that therefore the Kings of this realm have ever been entrusted with the care and approbation thereof '.' The statute is, 'more effectively to guard the descendants of . . . King George II . . . from marrying without the approbation of (his) Majesty, (his) heirs and successors, first had and obtained'.
Section 1 enacts that ' no descendant of the body of his late Majesty King George the Second, male or female (other than the issue of princesses who have married, or may hereafter marry, into foreign families), shall be capable of contracting matrimony without the previous consent of his Majesty, his heirs or successors, signified under the great seal, and declared in council, (which consent, to preserve the memory thereof, is hereby directed to be set out in the licence and register of marriage, and to be entered in the books of the Privy Council), and that every marriage, or matrimonial contract, of any such descendant, without such consent first had and obtained, shall be null and void to all intents and purposes whatsoever'.
In no respect is the
statute so open to criticism as in the concluding words of this
section.(12) This
high-handed measure, which bastardises the issue of such marriage,
instead of,
as it might well have done, merely declaring them incapable of
succeeding to
the [55] throne, or
even to any
title of honour, was very clumsily drawn by Mansfield, Thurlow and
Wedderburn
'.(13) That bastardisation was in fact the result of the statute is
abundantly
clear on the wording of this section. It was also so held in the Sussex
Peerage
Case.(14) Even the intensely autocratic ruling houses of the Continent
admitted
the validity of an agnate's marriage without the Sovereign's consent,
but such
a marriage, being morganatic, gave no rights of succession to its
issue.(15)
Section 2 provides a
loophole of escape for those caught by the previous section, if, being
above
the age of twenty-five years, they wish to persist in (their)
resolution to
contract a marriage disapproved of, or dissented from, by the King'.
They may
in such circumstances give twelve months notice of their intended
marriage to
the Privy Council. If during that time both Houses of Parliament have
not
expressly declared their disapprobation of the intended marriage—which
is
perhaps unlikely—the ceremony may take place and the marriage will be
valid.
The words of the section being in no way qualified, it seems that the
issue of
such a marriage could succeed to the throne. Rather curiously, this
door of
grace does not seem ever to have been employed.
Section 3 makes
everyone present at a ceremony in violation of section 1, ipso facto
guilty of
praemunire :
' Every
person who
shall knowingly or wilfully presume to solemnise, or to assist or be
present at
the celebration of any marriage with any such descendant, or at his or
her
making any matrimonial contract, without such consent as aforesaid
first had
and obtained, except in the case above mentioned,(16) shall, being duly
convicted
thereof, incur and suffer the penalties ordained and provided by the
Statute of
Provision and Praemunire made in the sixteenth year of the reign of
Richard the
Second .' (17)
In its enthusiasm to outlaw such a marriage and all the parties to it, the legislature would seem to have overreached itself, in that, since everyone present at the ceremony is guilty of a crime, evidence of its having taken place could only come from a police spy provided in advance with a free pardon. No one can be compelled to [56] give evidence which will have the effect of incriminating the witness himself.(18) Consequently, although a number of criminal ceremonies have taken place,(19) no prosecution has ever been instituted so far as can be traced, for the crime created by this section 8.(20) Of course, public opinion would not have countenanced such a proceeding in recent times.
But the purpose of this article is not to criticise the provisions of the Royal Marriages Act as they stand, but rather to inquire whether there is now in fact any living person to whom the Act applies.
I refer once more to
the exemption given by section 1 (21) to 'the issue of princesses who
have
married, or may hereafter marry, into foreign families '.
Counsel for the petitioner in the
Sussex Peerage Case, Sir T. Wilde,(22) puts
the position thus,
This argument was only incidentally relevant in the Sussex Case. Consequently, it was not dealt with in the judgments. At other stages in the argument numerous judicial interjections took [57] place, which tends to show that their lordships were not violently in disagreement with the gist of it, i.e., that Princess Charlotte and Queen Victoria (had she been a princess) would be treated as having married into foreign families'. Both of their husbands were princes of the house of Saxe-Coburg—clearly a foreign family. It is to be noted that the words used are ' marry into foreign families', and not ‘ marry foreign subjects'. In point of fact both princes had been naturalised by Act of Parliament before their respective marriages.(25) It is the foreignness of the family, not that of the individual member of it, which is in question.
If this contention of Sir T. Wilde is correct, the Royal Marriages Act can have no application to the issue of the Princess Elizabeth, Duchess of Edinburgh, as she has married into a foreign family, that of Greece.(26) Although her husband uses the surname of Mountbatten,(27)">(27) and is a naturalised British subject,28 he was born a Prince of Greece, a Greek subject, the son and grandson of Greeks. The contention might however be attacked on the ground that naturalisation cuts the individual off from his family. In Roman law a capitis deminutio media—loss or change of civil status (29)—took the deminutus out of the potestas of his paterfamilias.(30) But if words are given their ordinary meaning, the word ' family ' appears to extend to a man's near blood relatives without regard to nationality. The context, ' marry into . . . families', shows that it does not here mean ' children', as in the phrase, ' my wife and family '. As Wickens V.-C. said in Burt v. Hellyar,(31) ' family', ' is a popular and not a technical expression ', and ' is, in itself, a word of the most loose and flexible description '. (32) It may be argued that it should therefore be given the meaning which will best give effect to the declared object of the statute, viz., to safeguard certain Royal marriages. Against this must be put the fact that this is a penal statute establishing a crime (which is not malum in se) and one ' passed to deprive certain persons of a natural right, a right sanctioned and enforced by the law of both God and man '." Such an Act must be construed very strictly and any exemptive clause as liberally as possible.(34)
The restriction of the
exemption to the issue of princesses is very curious.
Assuming for the moment that Queen Victoria
is disqualified, as Sir T. Wilde suggests,(35) there is a purely
fortuitous
distinction between the issue of an heiress presumptive, who marries
(with
permission) into a foreign family before her accession, and that of one
who,
being refused permission, has to wait until her accession takes her out
of the
statute.(36) But was Queen Victoria
not a
princess ?(37) A peerage merges in the
Crown, when its holder succeeds to the fountain
of honour, and is extinguished,(38) but the
purely
titular dignity of princess is not a peerage.(39) The
greater is often included in the
less.(40) The fact that King Edward
VIII
was styled ' Prince Edward ' from the moment of his abdication without
further
grant (41) appears to indicate that he remained a
Prince throughout his tenure of
the Crown.
In the formal language of royal proclamations the Sovereign is
often
styled ' Prince' or ' Princess'. Thus
the proclamation of his present Majesty's accession ended with these
traditional words, ' beseeching God, by whom kings and queens do reign,
to
bless the Royal Prince, George the Sixth
with long and happy years to reign over us'."
In old statutes this usage is frequent,
e.g., the Recognition Act, 1608, refers to ' the highe and mightie
Princesse of
famous memorie,
The restriction appears to have another curious effect. If the Sovereign's only daughter and heiress married into a foreign family, her issue would be exempt albeit in direct proximity to the throne; but if a daughter of, say, the present Earl of Harewood were to marry a man of her mother's nationality, her issue would remain subject to the Act.(44) And it might obviously be someone much more remote from the succession than that.
But the main
contention of this article rests neither on the phrase into foreign
families,
nor on the technical definition of a princess.(45)
It is suggested that in fact all the
descendants
This contention is based on the assumption that the words ' the issue ' of such a princess mean ' all the issue '. It is difficult to see what other meaning can be put upon these words. It would be quite arbitrary to add some such phrase as, ' not being British subjects', or, ' not being more directly descended from a later British Sovereign '.(48) These phrases of limitation simply are not there. No doubt the legislature would have done better to add them, but it having failed to do so, it is no part of a judge's duty in construing what has been enacted to add to it what should have been enacted. As has already been pointed out, this is a penal statute and must be strictly construed.(49) Any exemptive provisions, on the other hand, must be construed as favourably as possible.(50) If a descendant of Edward VII (51) were on trial for the crime created by the statute,(52) he would be entitled to claim that he was the issue, albeit somewhat remote,(53) of a princess who married into a foreign family, and therefore entitled to an acquittal.
[60]From the wording of the Act (54) it is clear that the tests of criminality and nullity are the same.
In the Sussex Peerage
Case itself,(54) Tindal C.J. said, ' If the words of a statute are in
themselves
precise and unambiguous, then no more can be necessary than to expound
these
words in their natural and ordinary sense. The words themselves alone
do, in
such cases, best declare the intention of the law giver'.
Later (55) he says of the particular act in
question, ' the words of the statute appear to us(56) to be free from
ambiguity'.
The natural and ordinary meaning of the term ' issue ' is descendants
ad
infinitum,(57) In other statutes relating to the Royal family the word is
invariably used in this sense.(58) In some will cases a so-called '
popular '
meaning has been given to the words restricting them to issue in the
first
generation, i.e., children.(59) Such a construction here, as well as
being quite
unjustifiable, since the legislature must be taken to understand the
ordinary
legal meaning of a word, would lead to absurd and untenable results.
For
example, while the children of Empress
It may even be asked
whether there is now any living person to whom the Act applies. Even if Queen Victoria was not a '
princess '
within the meaning of the Act, or her marriage was not one into a
foreign
family—which are admittedly matters of argument—most, if not all, of
her living
descendants can claim exemption by some other line of descent. Thus all her daughters who had issue
married [61] into
foreign
families.(61) Her second son, the Duke of Edinburgh (1844-1900)
(62) is represented
only by the issue of his four daughters, all of whom married into
foreign
families.(63) The youngest son, the first
Duke of Albany (1853-1884) married a descendant of Augusta, Duchess of
Brunswick-Wolfenbuttel
(1787-1813), eldest sister of
George III.(64) More difficult is the case
of the
third son, the first Duke of Connaught and Strathearn (1850-1942). His
wife was
descended from the only daughter of George I, but apparently (65) not
from George
II. This raises the point whether the exempting princess must herself
be a
descendant of George II.(66) If so, this branch of the Royal family is
the only
one to whom the Act may possibly apply. But his elder daughter married
into the
Royal house of Sweden, so as to exempt her issue.(67) Therefore the sole
person
to whom the Act could apply would seem to be the only son of the other
daughter, Lady Patricia Ramsey.(68) He is Captain Alexander Ramsey (born
1919),
approximately sixty-eighth in the fine of possible succession to the
throne.(69)
This seems a sufficient commentary on the supposed effectiveness of the
Royal
Marriages Act in protecting the throne from undesirable consorts. But, of course, if the arguments
for Queen
There is, however, one
other group of descendants of George II—the German house of
This marriage of
George V of
[63]
To sum up, the Royal Marriages Act, 1772, has spent its force, every now living descendant of George II(76) being exempted as ' the issue of princesses who have married .. . into foreign families '(77) This is scarcely to be regretted, as few Acts have been so badly drafted or excited so much execration. Even when there were descendants to whom it did apply, it did not do its work properly. Thus a Roman Catholic descendant—with no possible interest in the succession(78)—was caught by its terms,(79) but the heir presumptive to the throne, if only his mother had married into a foreign family, was exempt. In fact, ' marriages ' rendered criminal and void by its provisions were treated socially as the equivalent of the continental morganatic marriage.(80)
If it be true that '
marriages in the Royal family are of the highest importance to the
state' 81 it
is obviously desirable that new legislation should be introduced.
There seems little need to make it extend
beyond the descendants of the late King George V. No criminal
penalty should be attached, it is suggested,
to a marriage of such a descendant without the Royal consent; nor
should the marriage be rendered void. A solution
more in accordance with modern ways of thought would be that the
descendant by
such marriage should forfeit all title to the throne for himself and
his
issue.(82) Extreme care would be
necessary in drafting the section (if any) conferring exemption upon
the issue
of those female members of the Royal house who marry into foreign
families.
1 12 Geo. III, c.
11;
4 Halsbury's Statutes, 188. 2
Since the consent must be given under the
Great Seal and passed in Council (a. 1), the contrary view is not so
absurd as
it appears at first sight. The monarch is within the words ' descendant
of
George II (idem), but the Preamble (infra), shows that Parliament
clearly had
in mind only the other members of the Royal family. The King is not
bound by a
Statute unless expressly referred to {Magdalen College Case (1616) 11 3
For a layman's view see Mackenzie, The
Windsor Tapestry (1938). 4
The Times, 5
It is customary to announce such consents in the
Court Circular and in the London Gazette. 8 His
great-grandmother was Princess Alice (1848-1878), second daughter of
Queen 9 The passing of
this
Act was strongly opposed.' (Erle C.J. as junior counsel in the Sussex
Peerage
Case, at p. 140.) 10
William Henry, Duke of Gloucester and
Edinburgh (1743-1805) had married in 1766 Maria. Dowager Countess
Waldegrave, a
natural daughter of Sir Edward Walpole. Henry Frederick, Duke of
Cumberland and
Strathearn (17-15-1790) in 1771 married Lady Anne Horton, a commoner's
widow. 11 "With
reason. George, Prince of Wales, '
married' Mrs. Fitzherbert, in violation of the Act, 12 At common law
the
King of England had the care and approbation of the marriages of his
children
and grand-children by sons, and of the heir presumptive.
This was unanimously decided to be
the law by the judges in 1772. (Lord's Journals, February 22.) His control over the remoter members of
the
royal family was vague and undefined.
But it is very important to notice that the want of the King's
approbation previous to
the
passing of the 1772 Act did not invalidate the marriage, but
merely
rendered the parties liable to
punishment for contempt of the royal authority.
(VI Halsbury's Laws of England, 2nd ed.,
442, note (m).) Thus, when
Henry
VIII's sister. Queen Mary
(1498-1533) remarried
without his
leave, her husband, the Duke of
Suffolk, had to pay over £24,000 to the King.
(Dictionary of National Biography, vi, 219.)
When a common law right of the Crown is
re-enacted by statute sub condicione, the Crown cannot rely on its
common law
right to act sine condicione.
(Att.-Gen. v. de
Keyser's Royal Hotel, Ltd-(1920)
A.C. 508.) 13 The Complete
Peerage, III, 547, note (a). 15 Thus the
Archduke
Franz Ferdinand of Austria-Este (murdered at 16 I.e., the
procedure
under section 2, 17 16 Ric. II, c.
5
(1392-3). They were the forfeiture of all the property, real and
personal, of
the person convicted, and his imprisonment for life or perpetual
outlawry. The
forfeiture is an express part of the sentence, and the crime not being
a
felony, it was not abolished by the Forfeiture Act, 1870. (Kenny,
Outlines of
Criminal Law, 15th ed., 823.) Criminal outlawry was abolished by the
Administration of Justice (Miscellaneous Provisions) Act, 1938, s. 12.
The
imprisonment is untouched by the Criminal Justice Act, 1948, 10th
Schedule. 18
R. v. Slaney (1832) 5 C. & P. 213; R. v.
Garbett (1847) Den. 236. Moreover, it is unusual to convict on the
uncorroborated, evidence of accomplices, which everyone present must
necessarily be. 19
E.g., those referred to in note (11) supra.
The second Duke of Cambridge (1819-1904), the famous
Commander-in-Chief, is
believed to have been the moat recent case, but as to his marriage, see
note
(72) infra. 20
Nullity proceedings were taken in respect of
the Duke of Sussex's first 'marriage . (Foster's Peerage, 1880,
lxxvii.) See
also the Duke's declaration, Sussex Peerage Case, at p. 99. 23 Only child of
George IV, born in 1796. Her husband was Prince Leopold of
Saxe-Coburg-Saalfeld
(1790-1865), afterwards first King of the Belgians. (Queen 25
Prince Leopold by 56 Geo. III, c. 12; 26
The Royal family of 27
Assumed on his naturalisation, February,
1947. (Shew, op. cit. 72.) His mother was a Princess of Battenberg. 28
By ordinary process, not special Act. 29 Capitis
deminutio media occurred when a Roman
citizen became civis of another town, e.g., a civitas peregrina or a
Latin
colony, between which and Borne there was no complete community of
civil rights
(see Moyle's note to Inst.1.16.ii, citing 31
L.R. 14 Eq. 160, at p. 164. 32 Per
Kindersley
V.-C. in Green v. Marsden (1858) 1 Drew 646, 651. 33
Erle C.J. (as counsel), Sussex Peerage Case,
at p. 135. 34
I return to this matter, infra; notes (49)
and (50). 37 She clearly
remained throughout her life a Princess of Hanover, but I apprehend
that the
princess must be a- British one. 38 Lord Cranmore's
Case (1848) 2 H.L.C. 910. Buckhurst Peerage Case (1876) 2 A.C. 1, per
Lord
Cairns L.C., at p. 28. 39 It was held in
the
Wensleydale Peerage Case (1856) 5 H.L.C. 958 that the Crown cannot
create a
peerage unless it be hereditary. A prince has to be created a peer
before
entering the House of Lords. 40 E.g., a bequest
of
the testator's one-third share in a partnership may pass the whole
business,
acquired before his death (Be Russell (1882) 19 Ch.D. 432). 41White, The
Abdication of Edward VIII (1987). 42
43
1 Jac. 1, c. 1 (preamble); 4 Halsbury's
Statutes, 126. 44
Because she would not be a princess. This
example assumes that the Earl is within the Act, which, it is
contended, he is
not. 45 By Royal
Warrant of
December 11, 1917, ' the children of any sovereign of the United
Kingdom and
the children of the sons of any such sovereign and eldest living eon of
the
eldest son of the Prince of Wales, shall have and at all times hold and
enjoy
the style, title or attribute of Royal Highness with their titular
dignity of
Prince and Princess prefixed to their respective Christian names, or
with their
title of honour '. Previously the titles had been more extended. It is suggested that a reigning queen
would
normally come within these words, as Queen 46 Her daughter
Louise,
Princess Charles of Hesse-Cassel (1750-1831), had a daughter, also
Louise, the
Duchess of Slesvig-Holstein-Glucksburg (1789-1867), who was the mother
of King
Christian IX of Denmark (1818-1906), Queen Alexandra's father. Queen
Alexandra's mother was also a descendant of George II. 47
A morganatic branch of the royal house of
Wurtemberg. Her husband, Francis, first Duke of Teck (1837-1900),
resided in 48
It is extremely difficult to frame words
which catch those persons whom it is necessary to catch and no others, 49
53 Necessarily not
so
remote as their descent from George II, which gives the 54 hoc. tit,, at
p.
143. 56 The question
bad
been referred to the judges. 57 Whythe v.
Thurlston
(1749) Amb. 555; S.C., sub nom. Wyth v.
Blackman, 1 Ves.Sen. 196; 58 E.g., The Act
of
Settlement, 1700 (12 & 18 Will III, c. 2), s. 1:
' in default of issue of the said Princess
Ann and of His Majesty '. For
an
exactly similar use, see the Succession to the Throne Act, 1544 (36
Hen. VIII,
c. 1), s. 1, ' and for default of such issue . . .'. 59
Ralph v. Carrick (1879) 11 Ch.D. 873, per
James L.J. at p. 883. If it is
qualified as, e.g., 'issue male' or, 'eldest issue male', it may in a
will be
read as equivalent to 'heir-at-law' of
the appropriate kind. (Re Cosby's Estate [1922] 1
Ir.R. 120.) Such a reading here
would
lead to even more absurd results than that as ' children' referred to
in the
text. 61 The Princess
Royal 62 Reigning Duke
of
Saxe-Goburg and 63 Princess Marie
(1876-1938) married King Ferdinand of Rumania, Princess Victoria
(1876-1936)
the Grand Duke Cyril Vladimirovitch, head of the House of Romanov after
the
annihilation of the Tsar's immediate family, 1918, Princess Alexandra
(1878-1942) into the mediatised German family of Hohenlohe-Langenburg,
Princess
Beatrice (born 1884) the Infante Alfonso of Orleans-Bourbon. The Duke's only son died without issue
in
1899. 64 As to this
lady,
see also note 22, supra. The Duchess of Albany was daughter of Helena,
Princess
George of Waldeck (1881-1888), daughter of Paulina, Duchess of Nassau
(1810-1856), daughter of Prince Paul of Wurtemberg (1785-1852), son of
Queen
Charlotte of Wurtemberg (1764-1788), daughter of the Princess Augusta
referred
to in the text. 65 In view of the
complexities of royal genealogies, it is dangerous to state a negative
categorically. The Duchess of Connaught was daughter of Prince
Friedrich Karl
of 66 Presumably she
must. Otherwise a Stuart or even a Plantagenet princess might be used. 67 Princess
Margaret
of 68
Born 1885. Also to her for a re-marriage, The
Duke's male issue became extinct at the death of his grandson, the
second Duke
(1914-1943). 69 This is a
conservative estimate. Between him and the throne, stand, in addition
to all
the descendants of George V (except the Duke of Windsor), members of
the Royal
families of Norway, Rumania, Greece, Yugoslavia, Romanov, Leiningen,
Hohenzollern, Hohenlohe-Langenburg, Slesvig-Holstein, Sweden and
Denmark; also
Hapsburg and Orleans-Bourbon, if prepared to forswear their religion. 71
Second Duke of 72
The most striking result of the writer's
contention, if it be correct, is that the second Duke of 73 4 & 5 Anne,
c. 15; 4 Halsbury'e Statutes,
165. (It was repealed by the
British Nationality
Act, 1948 (4th Schedule).) 74 Re Bozzelli's
Settlement [1902] 1 75 The Act seems to
contemplate this.
Otherwise there would be no need expressly to
exempt the issue of princesses, whose issue would normally be domiciled
abroad. 76 With the
possible
exception of Captain Ramsey, supra. 78 Act of
Settlement,
1700, s. 1. 79
There are no words excluding them from the
Royal Marriages Act. But for this Act George IV's marriage to Mrs.
Fitzberbert
(note (11), supra) would have incapacitated him for the Crown and
probably the
Regency, as she was a Roman Catholic. 80
Thus, the Duke of Sussex's first English 'marriage' took place publicly at 81 Preamble to the
Royal Marriages Act, supra. The events of 1936 clearly demonstrate that
they
are. 82 This is tbe
position in * Mr. C. d'O.
Farran,
m.a., B.c.L.(oxon), is an Assistant Lecturer in Law in the Lord Chancellor Royal Marriages Act.
1772 I have received a
further letter from Sir Alan Lascelles on this subject enclosing the
reprint of
an article by Farran which I think it would be worth your while to read. Farran is a B.C.L. of Oxford, is Assistant
Lecturer in Law in the I attach my
correspondence with Lascelles and Farran's article. It seems pretty clear
that, apart from pressure on Parliamentary time and the natural
unwillingness
of any Government to legislate about the Monarchy and the Royal Family,
there
is a strong case for repealing the Act of 1772 and substituting
whatever may be
necessary or desirable to protect the Throne from undesirable consorts. At the end of his
article Farran suggests as a policy that if a descendant of King George
V were
to marry without the consent of the Sovereign, that descendant should
forfeit
all title to the Throne for himself and his issue. This seems to be on
the right lines. It would be for
consideration whether the prohibition should not be limited to the
children and
grandchildren of the Sovereign for the time being but it needs thinking
out. I have told Lascelles
that I would ask you to consider the subject and to instruct me as to
the next
step. a.e.a.n. 1st February. 1952. Thank you very much
for your letter of the 31st January and for sending me your copy of the
reprint
of Mr. Farran's article on The Royal Marriages Act, 1772.
I have
read the article with great interest. At
least it bears out the view that any
Bill on the subject must repeal the Act of
1772 and substitute something quite
different - something which can be justified as being necessary or
desirable in
modern conditions. I will ask the Lord
Chancellor to consider the subject and to instruct me as to the next
step. The Right Honourable Sir Alan
Lascelles, G.C.V.O.,
K.C.B., C.M.G., M.C. Home Office. S.W.1. Dear Napier, I have received your
letter of the 25th ultimo about the Royal Marriages Act,
1772,
and much regret not having replied to your earlier letter. Looking at the
position to-day there are thirteen descendants of King George V in the
line of
succession to the throne and after them come Princess Arthur of There is a certain
advantage in amending the Act of 1772, since it is now hopelessly out
of date
and indefensible. It may be, as
Leadbitter has suggested, that the necessary consent has sometimes been
overlooked with the result that there may be some doubt in such a case
as to
the legitimacy of the issue in English and Dominion law; but so far as
succession to the throne itself is concerned, the line of succession is
now so
strong that it does not probably matter
whether the need for the consent has
sometimes been overlooked in the remote cases. If the Act is
to be amended, the suggestion in the
"Times" in 1949
that King George V should simply be substituted therein for King George
II is a
good one; but the exception for
"the issue of princesses who have married into foreign families" may
require consideration, especially as the Foreign Office apparently
suggested
some years ago that the exception should be for foreigners. On the other hand,
there is a natural reluctance to legislate on these matters and there
is no
public demand. The Act of 1772 sometimes gives a little work but the
work is
not in itself sufficient to justify an amendment. It
would be necessary to obtain the agreement
of the Dominions which should not be difficult, but I doubt whether the
Act is
one "touching the Succession to the Throne" in the Statute of I am afraid that
the amendment will provoke discussion.
The exception in the Act for the issue of princesses who have married
into
foreign families produces anomalies as shown by the Norwegian instance. Further, in the conditions in the XVIIIth
century it was to be expected that when an English princess married a
foreigner
the bridegroom would be at least a ruling prince whether royal, electoral or ducal or in the line of
succession to such a prince and that in any event the descendants of
the
marriage would be foreign princes or princesses born abroad and living
in their
own country. But in the. XlXth century
more than one of Queen On balance, it seems
to me that it is better not to amend the Act at the present time. I
have not consulted the Home Secretary since I gather that at the moment
you
only desire my personal opinion. Yours sincerely,
L. S. Brass The Right Honourable Sir Albert Napier,
K.G.B. , Q.C. ,
Lord Chancellor's
Department, House of
Lords. Dear Sir Leslie Brass, Sir Albert Napier has
asked me to let you know that he has received your letter of the 22nd
February
About the Royal Marriages Act, 1772. Yours sincerely,
A.R. Sir Leslie Brass,
C.B.E. Wed 18th
June @1030am 5.vi.52 Dear Gavin, I’m very glad they
have made you a proper Peer. Many
congratulations. In re R. Marriages
Act: will you tell one of your people if you wld like ,me to come &
see you
one day next week – or, better, the week after when all the inmates of
this
house (except I) will be at Ascot. Yours truly, A.
Lascelles Sir Albert Napier Royal Marriages Act,
1772 At common law the King
had a certain measure of control over the marriages of members of the
Royal
Family, as was recognised by Parliament in the. preamble to the Act of
1772,
where it is stated that Parliament was "sensible that marriages in the
royal family are of the highest importance to the state and that
therefore the
kings of this realm have ever been entrusted with the care and
approbation
thereof". The judges in 1772
declared that the common law rule was that the King had the care and
approbation of the marriages of his children and of his grandchildren
by sons
and of the Heir Presumptive. But the
want of the King's approval did not invalidate the marriage but
rendered the
parties liable to punishment for contempt of the royal authority
(Halsbury,
Vol.6, page 442). If the Act of 1772
were simply repealed, I think it is clear that this common law rule
would be
revived and would not be affected by anything in the Marriage Act,
1949, for
s.79(5) of that Act expressly provides that nothing in the Act is to
affect any
law or custom relating to the marriage of members of the Royal Family. The marriage of members of the Royal Family
other than the children, and the grandchildren by sons, of the
Sovereign and of
the Heir Presumptive would presumably be governed by the ordinary law
contained
in the Marriage Act, 1949. Under s.3 of
this Act consent to the marriage of an infant who is not a widower or
widow
must be given by his or her parent or guardian in accordance with the
provisions of the Second schedule to the Act.
If both parents are alive and are living together, the consent
of both
is required; if they are divorced or
separated, the consent must be of the parent who has the custody of the
child.
If one parent is dead, the consent required is that of the surviving
parent and
of any guardian appointed by the deceased parent.
The court, which includes a court of summary
jurisdiction, may dispense with consent on application made to it for
that
purpose, provided that notice of the application is given to the person
who has
refused consent. Failure to obtain
consent, either from the person whose consent is required or from the
court,
does not however in itself invalidate a marriage.
D.W.D. (?) Mr. Dotson Sir Albert Napier Lord Chancellor Royal Marriages
Act, 1772 I attach a note of
this morning's meeting: with Sir Alan Lascelles,
D.W.D. (?) Approved as revised S 15 vi 52 ROYAL MARRIAGES ACT.
1772 Note of Sir Alan
Lascelles' discussion with the Lord Chancellor on Sir Alan Lascelles
came to see the Lord Chancellor in order to discuss the possibility of
amending
or repealing the Royal Marriages Act, 1772, which sometimes caused
inconvenience in modern conditions, particularly when requests were
made for
the Sovereign's consent to marriages of foreigners who might he quite
unknown
to him but could claim to he descended from King George II. The Lord
Chancellor
said that the Act was difficult to construe and its effect was far from
clear. In an article in the Modern
Law
Review for January, 1951, Mr. Farran had contended that the exception
contained
in s.1 of the Act in favour of the issue of princesses marrying into
foreign
families extended to all descendants of such princesses, even although
such
descendants might also he able to trace descent from King George II in
the male
line. This would clearly defeat the object
of the Act and, if the argument were correct, even an heir to the
Throne, if he
could trace descent through a princess who had married into a foreign
family,
would be able to marry without the Sovereign's consent.
At common law the Sovereign had a certain
measure of control over the marriage of members of the Royal Family in
the
direct line of succession to the Throne, as was recognised by the
preamble to
the Act of 1772, but the Sovereign's common law rights had been
suspended by
the statute without, if Mr. Farran were correct, there being anything
to
replace those rights at the present day. The Lord Chancellor
said that, although the matter was not free from doubt, he thought that
the
words of exception in s.1 of the Act ought to be construed so as to
cover only
those persons who were descendants of princesses who had married into
foreign
families but did not otherwise trace descent from King George II. Lord Simonds said that
he did not think it would be practicable to repeal the Act and to put
nothing
else in its place, relying on the fact that the Sovereign's rights at
common
law would be revived by the repeal of the Act.
Nor did he think that it would be practicable to amend the Act
by
substituting references to King George V for references to King George
II,
although this would no doubt have a beneficial result in cutting out a
number
of foreign persons who could claim descent from George II, because,
once it
were sought to amend the Act, Parliament would undoubtedly wish to
consider
whether its provisions were appropriate in modern conditions. For instance, it could well be argued that
while the Sovereign should possess some form of control over the
marriage of
members of the Royal Family sufficiently close in the line of
succession to the
Throne, this should not take the form of invalidating marriages which
had taken
place without consent, but should deprive those concerned of all right
of
succession to the Throne.
For these reasons the
Lord Chancellor thought that the best course would be to do nothing
further
unless and until any practical need for action arose.
Any requests for consent to their marriage
from foreigners claiming descent from George II ought, in the great
majority of
cases, to be able to be met by the answer that such persons were exempt
from
the provisions of the Act because they trace descent solely through
princesses
who had married into foreign families.
a.e.a.n. Dear Sir Alan, I enclose a record of
Wednesday's meeting Which the Lord Chancellor has himself seen and
approved. Yours sincerely,
D.W.D. The Right Honourable Sir Alan Lascelles,
G.C.V.O., K.C.B., C.M.G., M.C. royal marriages act
1772 Note of Sir Alan
Lascelles' discussion with the Lord Chancellor on Sir Alan Lascellee
came to see the Lord Chancellor in order to discuss the possibility of
amending
or repealing the Royal Marriages Act, 1772, which sometimes caused
inconvenience in modern conditions, particularly when requests were
made for
the sovereign's consent to marriages of foreigners who might be quite
unknown
to him but could claim to be descended from King George II. The Lord
Chancellor
said that the Act was difficult to construe and its effect was far from
clear. In an article in the Modern Law
Review for January, 1951, Mr. Farran had
contended that the exception contained in s.1 of the Act in favour of
the issue
of princesses marrying into foreign families extended to all
descendants of
such princesses, even although such descendants sight also he able to
trace
descent from King George II in the male line.
This would clearly defeat the object Of the Act and, if the
argument
were correct, even an heir to the Throne, if he could trace descent
through a
princess who had married into a foreign family, would he able to marry
without
the Sovereign's consent. At common law
the Sovereign had a certain measure of control over the marriage of
members of
the "royal Family in the direct line of succession to the Throne, as
was
recognised by the preamble to the Act of 1772, hut the Sovereign's
common law
rights had been suspended by the statute without, if Mr. Farran were
correct,
there being anything to replace those rights at the present day. The Lord chancellor
said that, although the matter was not free from doubt, he thought that
the
words of exception in s.1 of the Act ought to ho construed so as to
cover only
those persons who were descendants of princesses who had married into
foreign
families but did not otherwise trace descent from King George II. Lord Simonds said that
he did not think it would be practicable to repeal the Act and to put
nothing
else in its place, relying on the fact that the Sovereign's rights at
common
law would be revived by the repeal of the Act. Nor did he think that it
would
be practicable to amend the Act by substituting references to King
George V for
references to King George II, although this would no doubt have a
beneficial
result in cutting out a number of foreign persons who could claim
descent from
George II, because, once it were sought to amend the Act, Parliament
would
undoubtedly wish to consider whether its provisions were appropriate in
modern
conditions. For instance, it could well
he argued that while the sovereign should possess some form of control
over the
marriage of members of the Royal Family sufficiently close in the line
of
succession to the Throne, this should not take the form of invalidating
marriages
which had taken place without consent, but should deprive those
concerned
of all right of succession to the
Throne. My dear Dobson, Thank you for the
record of our meeting with the Lord Chancellor last Wednesday, which
you have
been good enough to send me. Yours sincerely,
A.
Lascelles D.W.
Dobson, Esq., O.B.E., Lord Chancellor's
Office, House of Lords. Home Office,
S.W.1. Dear Napier, On I enclose as a matter
of interest a copy of a note which has been written here.
I am not of course suggesting that anything
should be done hut you may he glad to have it. Yours sincerely,
L.
S. Brass The Hon. Sir
Albert Napier, K.C.B., K.C. Sir Leslie Brass
892637 Royal Marriages
Act. 1772 I obtained these
papers because it seemed possible that
they might he relevant to the
question which we were considering about the Duke of Brunswick's
application for a doubt certificate under section 25 of the British
Nationality
Act, 1948.
They are not relevant to this question, but
they raise a question which you may like to consider in relation to the
Royal
Marriages Act, 1772. The Duke of Brunswick
(who was married in 1946 and to whose marriage the then Lord Chancellor
considered that the Royal Marriages Act did not apply)
is the second son of the Duke of Brunswick
who is asking for a doubt certificate. He
is therefore descended in the male line from King George II through the
Duke of
Cumberland, King George Ill's son. The
Lord Chancellor considered that the Royal Marriages Act did not apply
to him
because of his descent from the Empress Frederick, Queen Of course I do not
wish to suggest that the application of the Royal Marriages Act may not
be
excluded under the rules of private international law.
The husband in this case was almost certainly
domiciled and resident abroad and (we think) not a British subject, so
perhaps
the Act does not apply to him in any event. 29th October. 1952. Miss Rice Before this is typed,
it should be checked in referene to any record in other files (3236/15)
of the
conversation between the Lord Chancellor & Sir Alan Lascelles on
the
question of repealing the Act.
A.E.A.N.
7.xi.52 Dear Brass Thank you for your
letter of the 7th November enclosing a copy of the Home
Office Note
dated the 29th october about the Royal Marriages Act 1772. The present Lord
Chancellor has had occasion to consider the construction of the Act on
the same
point. He did not accept the views that
the Act is excluded in the case of a descendant of George II in the
male line
who is also descended from George II through a Princess who has married
into a
foreign family. The writer of the Note
ssems to share this view, for he regards the contrary as “very
doubtful”. The Lord Chancellor
has not considered the question of private internaitonal law referred
to, but
not answered, in the last paragraph of the Note. Dear Brass, Thank you for your
letter of the 7th November enclosing a copy of the Home
Office Note
dated the 29th October about the Royal Marriages Act, 1772. The present Lord
Chancellor has had occasion to consider the construction of the Act on
the same
point. He did not accept the view that
the Act is excluded in the case of a descendant of George II in the
male line
who is also descended from George II through a Princess who has married
into a
foreign family. The writer of the Note
seems to share this view, for
he regards the contrary as "very doubtful". The Lord Chancellor
has not considered the question of private international law referred
to, but
not answered. In the last paragraph of the Note. Yours sincerely,
a.e.a.n. Sir Leslie Brass, C.B.S. The Faculty of Law, The University, Dear Sir Albert
Napier, Many thanks
again. I am taking the liberty of
including two articles of mine, in which you might be interested. That
on the
Royal Marriages Act may even call for official action from the Lord
Chancellor! Yours sincerely, C. d'O FARRAN. original on 3510/29 Confidential Dear Farran,
Thank you for your
letter of the 4th June and for sending me your two articles. I have
read them
with much interest. It is very convenient to possess in such a handy
form all
the facts which you have collected for the two articles. The one on the
Royal
Marriages Act has been a subject of much consideration here. The
present Lord
Chancellor has not been convinced by that part of your argument which
results
in all the descendants of King Edward VII being exempt on the ground
that
although descended in the male line from George II, they are also
descended
from a Princess who married into a foreign family. This makes it all
the more
desirable to take action but unfortunately at present the objections to
taking
action seem to outweigh the advantages. In the other article
it is an engaging suggestion that although express words of an Act of
Parliament were necessary to make the husband of each of
the two Marys into Kings, the Duke of
Edinburgh is qualified for Kingship by the Sex Disqualification Removal
Act,
1919. In the past the courts have been rather sticky about applying
that Act. I
think the Court of Appeal refused to say that Miss Bebb and three other
women
were not disqualified by sex from
becoming solicitors, and the House of Lords managed to get out of
letting
Peeresses in their own right into the House of Lords.
Yours
sincerely,
A.E.A.N. C. d'O Farran, Esq. PERSONAL AND
CONFIDENTIAL Privy Council Office WHITEHALL.S.W.1. Dear Sir Albert, I enclose the file
sent me by Sir Alan Lascelles dealing with the Engagement and Marriage
of
Princess Elizabeth. When you and the Lord Chancellor have seen it I should be
grateful if you would return it to me with Sir Alan Lascelles' letter,
which I
have left attached to the front. If I am right in the
strict legal view expressed last week I feel that it would be
inadvisable for
The Queen to act purely on a legal basis. I am not sure whether
the method to be adopted is a matter on which I should express an opinion, but it seems to me that a possible
course to follow might be:- 1. The Queen he told
that in law the decision is one for Her and Her alone, hut that it is felt it would be
imprudent to arrive at a decision before first consulting the Cabinet and the Dominions. 2.The Cabinet and the
Dominions (through the Governor Generals) he informed that while The
Queen
realises that the decision is one to be made by Her personally She
would,
before making a decision, wish to consider their views. Yours sincerely,
W.
G. Agnew The Honourable Sir Albert Napier.
K.CB., Q.C. , HOUSE OF LORDS. Sir Albert Napier Lord Salisbury w. like
a copy ? ? of my minute on the R.M. Act. My dear Lascelles, I enclose for your
information a copy of a letter which I have written to Agnew and a copy
of the
note which I enclosed. Although in writing to
Agnew I have called it a departmental answer, I can tell you privately that the
note represents the considered opinion of the Lord Chancellor. Yours sincerely, A.E.A. Napier The Right Honourable sir Alan Lascelles,
G.C.B., G.C.V.O., C.M.G., M.C. PRIVY COUNCIL OFFICE, Dear Sir Albert, Thank yon for your
letter of the 14th December enclosing a note on the construction of the
Royal
Marriages Act. I entirely agree it is
most unlikely that a situation would arise where, at a Council at which
the
Sovereign was declaring consent to a marriage under the Royal Marriages
Act, a
Privy Counsellor stepped forward to express his disapprobation. I was,
however,
asked to advise what the position would he should such a thing actually
occur. My view is that,
whatever is done in practice, there is in this case no legal obligation
upon
the Sovereign to seek or act on the advice of His Ministers. It follows, I suggest, that if at such a
Council a Privy Counsellor protested it would be quite proper to inform
him
that he had been summoned merely as a witness and that on that
particular occasion
he was not present in the role of a counsellor or adviser.
Although the situation is unlikely to arise I
think Sir Alan Lascelles would like to know whether my view is correct. I should he most
grateful if you would he kind enough to reconsider this one point and
let me
know whether you agree. Would you please
return the manuscript note I left with you when I saw you and the Lord
Chancellor last week. Yours sincerely,
W.G.
Agnew The Honourable Sir Albert Napier.
K.C.B., Q.C., HOUSE OF LORDS, S.W.1. The question of the
construction of the Royal Marriages Act which you propounded in the
Lord
Chancellor's room has now been considered.
I enclose a note giving our departmental answer. A. E. A. NAPIER. SECRET The legal position
under the Royal Marriages Act is that the Sovereign is not required
before
signifying his previous consent to a marriage which comes within the
scope of
that Act to obtain the advice or assent of His Privy Council. The Act
requires
that the consent shall be signified
under the Greet Seal and declared in Council.
I do not think that this can be interpreted as meaning more then
it
says. It would not have been at all consistent with the personal policy
of
George III to submit his views upon the propriety of a Royal Marriage
to the consideration
of His Council, and I see no reason why the words should in their
context be
given any extended meaning. The purpose of
the provision is to give solemnity end notoriety to the act of the
Sovereign
for which further provision is made by the words in the immediately
following
parenthesis. But, though this is
the legal meaning of the Statute, it by no means follows that the
Sovereign
should act under it except with the consent of His Ministers. I think that this would depend on the
circumstances
of the particular case. Many quite unimportant persons are now brought
within
the scope of the Act and it might well be that the granting or
withholding of
the Royal Assent could be a matter of the merest routine and would have
no political
character. On the other hand the
proposed marriage might be of someone near the Throne, in which case
the
constitutional duty of the Sovereign would be, as in any other act of
political
consequence, to consult and act upon the advice of Ministers. The last words of section 2 of the Act
themselves indicate that such a marriage may be a matter of national
concern.
It would, moreover, be a matter for the Sovereign's Ministers to
determine into
which category a particular case fell.
For, if the act of the Sovereign was publicly criticised it
would be for
the Ministers to defend it as if it were their
own. It is unnecessary to add that the
advice given to the Sovereign by His Ministers might be greatly
influenced by
His own views. If this is so, the
situation as visualised by Agnew will not arise. He
feared that in the event of the Sovereign
giving assent in Council to a proposed marriage a Frivy Counsellor
there
present might express his disapprobation by stepping out of line or
otherwise. But the assent of the
Sovereign, having been
(upon the assumption that I have made) given on
the advice of Ministers if it was in any sense a matter of political
consequence, the Council would in the ordinary way be composed of
Counsellors
who supported the Ministers' decision. This
would not, of course, exclude the theoretical right of any Privy
Counsellor to
tender his advice to the Sovereign, but he would not be given the opportunity
of doing so at the Council at which the assent was declared. Lord Chancellor’s
Office House of Lords Thank you for your
letter of the 14th December enclosing the interesting file sent to you
by Sir
Alan Lascelles dealing with the engagement and marriage of Princess
Elisabeth. Having looked at the file, we
think that there is no need to alter the note enclosed in my letter to
you of
yesterday. I sent a copy of the note to
Lascelles, but I omitted to tell you so in my letter. The note makes no
mention of the Dominions, and, as your letter and the file do mention
them, I
ought perhaps to say something about them in this letter. I would drew
a sharp
distinction between (1) consulting the Dominions beforehand as to
whether the
Sovereign's consent should be given to a marriage,
and (2) declaring the consent in the
Dominions when the Sovereign had decided to give it. Whether there should
be consultation beforehand and what form it should take are questions
which
should, I think, be settled by the Cabinet as part of the Cabinet's
function in
advising the Sovereign; and in
this
matter the Cabinet could have the benefit of the views of the Secretary
of
State for the Commonwealth. The form in which the
Sovereign's consent should be declared in the Dominions is
comparatively
unimportant. Each Dominion could, I think,
be allowed to choose the form of declaration in that Dominion, and even
choose
whether there should be a declaration at all there, as long as it does
not
interfere with the procedure in the Privy Council here under the Royal
Marriages Act. I return Lascelles'
file, with many thanks, and also the manuscript note which you left
here last
week. The answer to the
question in your letter of the 15th December is "Yes".
The Privy Counsellor who protested during the
meeting of the Council at which the Sovereign was declaring his consent
could
be properly told that he was summoned as a witness and not in order to
seek his
advice. But in saying this I do not went
necessarily to exclude other ways of expressing the same proposition;
or other
ways of expressing disapproval of his conduct.
A. E. A.
NAPIER. W. G. Agnew, Esq.,
C.V.O. BUCKINGHAM
PALACE My dear Napier, Thank you for your
letter of 14th December with its enclosures, which I will file here. Yours sincerely,
A.
Lascelles The Honourable Sir Albert Napier, NOTE FOR FILE Edward Ford came to
see me to-day at his own request on a point arising under the Royal
Marriages
Act. After hearing what he had to say, I took him in to see the Lord
Chancellor. After a discussion, the Lord
Chancellor said he' would take an opportunity of speaking to Lord
Salisbury and
would then write to Edward Ford.
a.e.a.n. 25th February. 1954. ROYAL MARRIAGES ACT This minute should be
read in conjunction with the minute I wrote to Sir Alan Lascelles some
time ago
on the subject of the Royal Marriages Act. I adhere to the view
which I then expressed. It follows that
The Queen can lawfully consent to Captain R's proposal without taking
the
advice or Her Ministers and she can do so with constitutional propriety
in view
of the remoteness of Captain R from the throne.
The single factor which might cause some doubt is that Captain R
wishes
to marry a divorcee and it might be said that The Queen, by giving or
refusing
her assent to such a marriage, aligned herself on one side or the other
in a
matter of public controversy.
But I
think that The Queen's own opinion and wishes should be paramount in
such a
question and, though she might properly seek advice if she thought fit,
in the
end her own view ought to prevail. It is
therefore not a matter in which Her Mnisters are concerned to advise
her unless
asked to do so. I am asked whether The
Queen's consent or refusal would attract more publicity.
I think probably the latter; for, whereas
consent would mean only a notice in The Gazette, refusal would, if
Captain R
remained of the same mind, result in his giving notice to the Privy
Council
under s.2 of the Act and there would be at least a serious risk of some
busybody taking the matter up in either House of Parliament. I am asked next
whether an awkward precedent would be created, I do not think so. I wish it to be understood that I am dealing
only with cases where the proposed marriage is of a person remote from
the
throne. I am asked finally
whether The Queen' s consent must be only for a marriage in church or
could be
for a civil marriage. This question is
asked because the first section of the Act prescribes that the consent
is to be
"set out in the licence and register of marriage and to be entered in
the
books of the Privy Council" and this phraseology suggests a particular
form of marriage, but I think that these words, and particularly the
word
"licence", refer only to the procedure which then prevailed. The Queen having given her consent, the party may then marry according to
whatever form of marriage is lawful. If
a licence is required for that purpose, the consent must be set out
therein. But, if no licence is required,
the consent
is nevertheless effectively given. I have consulted the
Lord President of the Council upon what I have written above and he
authorises
me to say that he concurs. I must now add that my
attention has been called to the complications that arise from the fact
that
the Marriage Acts (Lord Hardwicke's Act 26 Geo.
II chap. 33 and the Marriage Acts of 1823 and 1836) do not apply
to
"Royal Marriages" within the Royal Marriages Act, 1772.
If, as appears to be the case, Captain R's
marriage comes within the latter Act, those who are advising him should
be
careful to see that his marriage is validly celebrated according to law. I now enclose the Lord
Chancellor's opinion on the matter on which you consulted him. I am sending a copy to Agnew.
A. E. A. NAPIER. Major Edward
Ford, C.B., M.V.O. My dear Agnew, I enclose a copy of
the Lord Chancellor's opinion on the matter which he discussed with you
yesterday, and I am telling Edward Ford that I have done so. You will see that there is an addition about
marriage in a Registry Office. So
suggestions are made as to how to effect a valid marriage because it
was unnecessary
to do so. It is a matter which the legal
advisers must be fully competent to do.
The omission does not imply any difference from your view as to
the
various ways in which a valid marriage could be effected. I return the documents
you left here. A. E. A. NAPIER. W.G. Agnew,
Esq., C.V.O. Dear Sir Albert I am writing to
acknowledge with many thanks the receipt of the Lord Chancellor' s
Opinion
enclosed with your letter of 3rd March. I will send this
forthwith to Adeane who I know will he glad to have it by him if The
Queen's
permission is sought. Yours sincerely,
Edward
Ford The Honourable Sir Albert Napier, Whitehall.S.W.1 Dear Sir Albert, Thank you for your
letter of the 3rd March enclosing a copy of the Lord Chancellor's
opinion on
the points raised by Edward Ford. I have read this with
great interest and I am sure Edward Ford will be relieved as the Lord
Chancellor's opinions are those for which Edward Ford had hoped. Yours sincerely,
W.
G. Agnew The Honourable Sir Albert Napier,
K.C.B., Q.C., HOUSE OF LORDS. Sir George Coldstream
to see Notice given between
Oct 14th and * 33 Lieutenant-Colonel Lipton:
To ask the Prime Minister, whether
he will introduce
legislation to repeal or amend the
Royal Marriage Ad, 1772. Answer Hansard Oral Answers
1 NOVEMBER 1955
p. 848 ROYAL MARRIAGES ACT,
1772 The following Question
stood upon the Order Paper: 52. Lieut.-Colonel
Lipton: To ask the Prime Minister whether he will introduce legislation
to
repeal or amend the Royal Marriages Act, 1772. Mr. Mellish: On a
point of order. I wish to seek your guidance and help, Mr. Speaker. On
the
Order Paper is Question No. 52, in the name of my hon. and gallant
Friend the
Member for Brixton (Lieut.-Colonel Lipton), who has deferred the
Question on a
couple of occasions. In view of the circumstances, could you not, in
your
capacity as Speaker, appeal to my hon. and gallant Friend to have the
decency to
withdraw this Question? Mr. Speaker: My only
real concern is whether the Question is in order or not. It is in order
to put
a Question down which asks for action, so the hon. and gallant Member's
Question is down on the Order Paper. Lieut.-Colonel Lipton:
Do I understand you to say now, Mr. Speaker, that the Question is
definitely in
order? The Prime Minister: I
will, with permission, answer this Question. I have had this
possibility very much in mind. I should, however, warn the House that
this Act
is of concern, not to the Lieut.-Colonel Lipton:
Have Her Majesty's Government therefore decided, after considering this
Act of
1772 in the light of 1955, that it still provides a useful and
necessary weapon
of control which Her Majesty's Government at the moment are reluctant
to
abandon, no matter what personal ordeal is involved for anyone? The Prime Minister: In
view of the hon. and gallant Member's imputations— which I think they
really
are—about the Act, I ought to add that the advice of Her Majesty's
Government
has neither been sought nor given to the Queen during recent events. Mr. J. T. Price: On a
point of order. Irrespective of the merits of the Question which the Prime
Minister has just answered, may I ask, Mr. Speaker, on what grounds the
Prime
Minister decided to answer Question No. 52 and to by-pass the rest? Mr. Speaker: It is
entirely a matter for the Prime Minister. I suppose he thought the
Question was
of sufficient public interest, and he asked my permission to answer it
before
he did so. The Prime Minister: It
was a difficult decision to take. This Question has been on the Order
Paper for
a long time, and as there has been a good deal of speculation about it,
and as
it has not been withdrawn, I thought it better that it should be
answered. Several Hon. Members
rose------ Mr. Speaker: Order. We
have finished with that Question now. There seems to be no Ministerial
responsibility in that matter at all. Outward Telegram
from Commonwealth Relations Office TO : U.K.
HIGH COMMISSIONER IN RPTD; (Sent 15-20 hours 2nd
November, 1955) EN CLAIR W. No. 267 PRESSE
Repeated ROYAL MARRIAGES ACT,
1772 Following is from
Hansard for November 1st. Begins. Lieut.-Colonel Lipton
asked the prime Minister whether he will introduce legislation to
repeal or
amend the Royal Marriages Act, 1772. Prime Minister said: I
will, with permission, answer this Question.
I have had this possibility very much in mind. I should,
however, warn
the House that this Act is of concern, not to the Lieut.-Colonel Lipton
said: Have Her Majesty's Government therefore decided, "after
considering
this Act of 1772 in the light of 1955, that it still provides a useful
and
necessary weapon of control which Her Majesty's Government at the
moment are
reluctant to abandon, no matter what personal ordeal is involved for
anyone? The Prime Minister
said : In view of the hon. and gallant Member's imputations - which I
think
they really are - about the Act, I ought to add that the advice of Her
Majesty's Government has neither been sought nor given to the Queen
during
recent events. Ends. Copy to:- D.II 10 House of Lords
Sir George
Coldstream H.M. Ambassador for U.N., New
York
Mr. M.E.
Allen CONSTITUTIONAL_DEPT. Lieutenant-Colonel
Lipton: To ask the Prime Minister,
whether he will submit proposals to the forthcoming Conference of
Commonwealth
Prime Ministers to amend the Royal Marriages Act, 1772. DRAFT
ANSWER
No, Sir. NOTES 1. Previous Questions On "52.
Lieutenant-Colonel Lipton: To ask the Prime Minister whether ha will
introduce
legislation to repeal or attend the Royal Marriages Act, 1772." The Prime Minister
replied:- "I have had this
possibility very much in mind. I
should, however, warn the House that this Act is of concern not to the Lieutenant-Colonel
Lipton's Supplementary was as follows:- "Have Her
Majesty's Government therefore decided, after considering this Act of
1772 in
the light of 1955, that it still provides a useful and necessary weapon
of
control which Her Majesty's Government at the moment are reluctant to
abandon,
no matter what personal ordeal is involved for anyone?" to which the Prime
Minister replied:- "In view of the
hon. and gallant Member's imputations -which I think they really are -
about
the Act, I ought to add that the advice of Her Majesty's Government has
neither
seen sought nor given to The Queen during recent events." 2. Probable
Supplementary Lieutenant-Colonel
Lipton may ask:- "whether H.M.G.
are aware that a large body of opinion in the The Answer to such a
Supplementary might be:- "I am well aware
of the objections felt to the machinery of the Act of 1772, but I am
also aware
of the very divergent views which are
held on the question what should take its place. This is an Act
which
has stood and been continually acted upon for 184 years, and, as I said
in
answer to the hon. and gallant Member on the 1st November last, it
concerns all
the countries of the Commonwealth. Much consultation must take place
throughout
the Commonwealth before we could get to the stage of submitting
definite
proposals for amendment of the existing law." 3. Objections to the
Act of 1772 The chief objections
are the following:- (1) It
is inherently unsatisfactory that personal
and constitutional questions of such high importance should still
depend on the
operation of an 18th Century Statute which was admittedly passed
hurriedly, and
in the face of considerable opposition, to deal with an ad hoc
situation
created largely by the unsatisfactory conduct of King George III's
brothers. (2) The
legal interpretation of the Act is
uncertain, but (3) On
the prevalent view of its construction,
its ambit is now far too wide: it extends, or may extend, to classes of
persons
whose connection with the Throne is very remote. Some think that it
should at
least be confined to The Sovereign's children and grandchildren and the
Heir
Presumptive. (4)
Although many approve in principle of
control of marriages which are likely to affect the succession to the
Throne,
it can reasonably be argued that the sanctions against marriages
without
consent imposed by the Act of 1772 are too strong.
A marriage without consent is
void and the offspring of the union bastardised.
There is a savage penalty on persons
celebrating or being present at the marriage. (5)
S.2 of the Act, which requires an applicant
over the age of 25 who has been refused consent to give notice to the
Privy
Council and then wait a year, during which either House of Parliament
may
prevent the marriage by passing a resolution, is contrary to modern
ideas of
propriety and fair-dealing. 4. It is considered
that the repeal or amendment of the Act of 1772 would require the
assent of the
Parliaments of the Dominions as well as the Parliament of the near to the succession
to the Throne should not operate differently here and in the Dominions,
for
otherwise there would, or might, be
different Sovereigns in different parts of the Commonwealth. Lord Chancellor Lieutenant-Colonel
Lipton's Question So far as you and Lord
Salisbury are concerned the matter rests thus:— "No, Sir.
Her Majesty's Government are not yet in a
position to put forward proposals on this question." Supplementary Answer "I am well aware
of the objections felt to the machinery of the Act of 1772, but I am
also aware
of the very divergent views which are held on the question what should
take its
place. This is an Act which has stood
and been continually acted upon for 184 years, and, as I said in answer
to the
hon. and gallant Member on the 1st November last, it concerns all the
countries
of the Commonwealth. Much consultation
must take place throughout the Commonwealth before we could get to the
stage of
submitting definite proposals for amendment of the existing law." 12th June. 1956. House of Commons col. 242-47. ROYAL MARRIAGES ACT,
1772 47. Lieut-Colonel
Lipton asked the Prime Minister whether he will submit proposals to the
forthcoming Conference of Commonwealth Prime Ministers to amend the
Royal
Marriages Act, 1772. The Prime Minister: It
it contrary to normal established practice to discuss in advance the
agenda for
Commonwealth Conferences. I wish, however, in this instance, to say
that Her
Majesty's Government in the Lieut-Colonel Lipton:
Will the Prime Minister bear in mind that this antiquated law unfairly
restricts
the personal freedom of many people now some distance from the direct
line of
succession, and that if any changes are to be made, they ought to be
made now,
before any more instances of individual difficulty arise. The Prime Minister: I
am aware of the objections which are felt to the machinery of this Act,
but I
am also very much aware of the divergent views which are held as to
what should
take its place. In this Commonwealth matter, it would not be right or
proper
for me to go beyond what. I have said. SECRET ROYAL MARRIAGES This note has been put
together from the best sources available.
It is not, however, in any sense legal advice and if any Action
were to
be undertaken with regard to any of the matters dealt with in it, it
would be essential
first to consult the Law Officers of the Crown. It must be remembered
that whenever the word "Parliament" is used it may possibly include
one or more of the Parliaments of the other countries of the
Commonwealth, even
though (as is shown in paragraph 4
below) their exact legal relationship to the problem has never
been
settled. Moreover, even if no final decision had been taken that a
change in
succession would be necessary, some of the Governments of the other
Commonwealth countries would certainly expect to be privately informed
of - if
not actually consulted about - the possible marriage of anybody very
near the
Throne. 1. The
Royal Marriages Act of 1772. By this Act no
descendant of the body of King George II, except the issue of
Princesses married
into foreign families, can sake a valid narriage unless the King or
Queen
Regnant has given consent under the Great Seal (i.e. before the Privy
Council). When, however, such a
descendant has reached the age of 25, he (or she) may give notice to
the Privy
Council of a wish to marry. If, after a
further 12 months, both Houses of Parliament have not expressly
declared their
disapprobation of the proposed marriage, it can then, but not before,
be
legally contracted without the sanction of the Sovereign. Any person, therefore,
coming under the terms of the Royal Marriages Act and wishing to
contract a
marriage, of which the Sovereign disapproves or to which the sovereign
is for
any reason unable to give assent in Council, must give notice to the
Privy Council,
which notice must be gazetted. After 12
months he or she may marry legally, provided Parliament has not
obstructed the
marriage. There is, however, one
difficulty with regard to the actual marriage. If one of the parties
has a
previous spouse still living and the Church of England adheres to its
Canon Law
prohibiting the marriage of divorced persons in Church, the following
difficulty arises: members of the Royal Family have been excluded from
the
scope of the Marriage Acts of 1825 and 1836, and, therefore, cannot
legally be
married in a Registry Office in England.
Thus it might be impossible for them to be married in 2. The Succession If the Royal person
concerned is near the Throne, in line of succession, and is ready, to
order to
facilitate the marriage, to renounce for himself or herself and his or
her
children any rights of succession to the Throne, then the renunciation
of such
rights would probably be made by a Declaration, the terms of which
would
subsequently have to be incorporated in a special Act of Parliament (as
in King
Edward VIII's Declaration of Abdication Act 1936, 1 Edw. 8 chap. 3). The 1936 Act contained
three short clauses: (1) Giving
effect to the King's declaration of
Abdication (2) Renunciation
of all rights to the
succession. (3) taking
His Majesty and his issue out of the
scope of the Royal Marriages Act 1772. 3.
Conclusion If a member of the
Royal Family, therefore, wishes to contract a marriage to which the
sovereign
is not prepared or able to give formal sanction, he or she can do so in
one of two ways: (a) Either
by giving notice to the Privy Council
after reaching the age of 25 and carrying outside England after a
farther lapse
of 12 months, provided that there has been no expression of
Parliamentary
disapproval.
J (b) Or
by signing a declaration of abdication of
all rights to the succession (which is subsequently embodied in an Act
of
Parliament) which could also specifically exclude the person concerned
from the
operation of the Royal Marriages Act 1772. If it was decided to
marry in Either of these
courses would disclose a firm intention to marry by the member of the
Royal
Family concerned. In (a) if he or she
changed his or her mind during the 12 months period, nothing would have
been
done to change his or her status as a member of the Royal Family in the
line of
succession. Once the marriage had taken
place or simultaneously with it, an Act of Parliament excluding him or
her and
his or her issue and descendants from the succession could follow. If (b) were adopted,
and the member of the Royal Family changed his or her mind after the
passing of
the Act and . before marriage,
he or
she would be then have been excluded from the succession and could not
be put
back except by a further Act. A possible compromise
between (a) and (b) might be to give
notice to the Privy Council, but not to have any Bill
presented to Parliament until near the end of
the 12 months periods 4.
Commonwealth Countries. Since the Statute of
Westminster (1938) a change in the succession requires the assent of
all the
self-governing countries of the Commonwealth as well as that of the
Parliament
of the For this reason - if
for no other - it is important that no premature announcement of an
intended
marriage, which might raise such questions, should to made. 5
Title A further question is
whether any action of the kind outlined above has the effect that the
person
concerned loses the title of Royal Highness. It seems unlikely that
such a consequence would follow an abdication of a right to succession. King Edward VIII kept the title of Royal
Highness, after his abdication and has ever since been accorded a
formal
precedence among the members of the Royal Family. SECRET Aide Memoire on Royal
Marriages I.
Except for some minor points of
statutory history consequent on the process of consolidation and
repeal, the
note is legally accurate. There are however some additional points
which I
think are worthy of consideration. II.
I deal first with the technical
aspects: A. The
Marriage Acts of 1823 and 1836 were
repealed (with savings which are not material for the present purpose)
by the
Marriage Act, 1949, and the Registration Service Act, 1953. These were
both
Consolidation Acts, and they preserved the law whereby neither the Act
of 1823
nor the Act of 1836 applied to marriages by the Royal Family -see
S.79(3) of
the Marriage Act, 1949. B. Marriages
of the Royal Family were excluded
from the purview of the Foreign Marriage Act, 1892, so a member of the
Royal
Family could not be married abroad before a British Ambassador, or a
Consul or
by the Commanding Officer of one of H.M's Ships. C. The
Royal Marriages Act, 1772, applies to
marriages celebrated abroad, though the marriage may be valid in the
foreign
country where it was celebrated (Sussex Peerage Case 1844,
11 Cl. & F. 85). D. The
Marriage Acts of 1823 and 1836 and their
modern counterpart are English Acta not extended to of 1772. III..
I venture to say a word
about the wider constitutional position with which the note, no doubt
deliberately, did not deal A. The
Act of 1772 does not in terms require
the Sovereign to obtain the advice or assent of the Privy Council
before
signifying His previous consent to a marriage which comes within its
scope. This is no doubt the legal
position, but in the circumstances of the person concerned being near
the
Throne, it would, in my view be the constitutional duty of the
Sovereign to
consult and act on the advice of Ministers. For, if the act were
publicly
criticised, it would be for Ministers to defend the Act in Parliament
and
elsewhere. It is unnecessary to add that the advice given to the
Sovereign by
His Ministers would be greatly influenced by His own view. B. There
is no precedent which has settled the
position of H.M's Ministers in other countries of the Commonwealth in
relation
to the Royal Marriages Act of 1772. Especially in view of the words of
the
preamble to that Act viz. "And being sensible that marriages in the
Royal
Family are of the highest importance to the State ....".
I agree that in fact the Governments of other
countries would certainly expect to be privately informed and given the
opportunity
of expressing their views about the marriage of anyone close to the
Throne. C. The
procedure in section 2 of the Royal
Marriages Act, 1772, only arises in the case of a marriage disapproved
of or
dissented from by the Sovereign. D. On
the assumption that the Sovereign has
acted en Ministerial advice in disapproving or
dissenting, a theoretical difficulty arises about the Government
"putting the whips on" to defeat any motion in Parliament in
pursuance of section 2 of the Act of 1772 objecting to the marriage. I
think,
however, that in any but an extreme case outside reasonable
contemplation (a)
it is very doubtful if such a motion would be made, (b) if made, it
would be
defeated by the good feeling and good taste of the House. E. If
the person concerned with the marriage
wished to renounce his or her rights to the Throne, it would of course
be a
matter for Ministerial consideration and advice before they introduced
a Bill
into Parliament to change the succession. Apart from the broad
questions, there
is the narrower point that, if there were inserted in the Bill an
exemption
from the Royal Marriages Act, 1772, it might be said to be inconsistent
with
the previous disapproval or dissent. IV.
I agree with what is
set out in the Note under the headings "Commonwealth
Countries" and "Title". 574-589 to be transcribed My dear Prime Minister In view of your letter
I have been doing some research into the Royal Marriages Act, and I
have tried
to approach it from the following angles: 1. the powers of the
Sovereign over marriages in the Royal Family before the Act 2. the difference in
these powers made by the Act 3. the contemporary
opposition to the Act 4. to how many living
persons does the Act now apply 5. the desirability of
the repeal of the Act and the effect of the repeal on the sovereign’s
powers 6. ? 7. the position of the
countries in the CW. I enclose a memorandum
dealing with these points. You will see that I
reach the following conclusions: (1) it is very
doubtful whether the Act applies to Princess Margaret.
As at present advised I do not think that it
does apply to her. (2) the Act has no
pride of ancestry, is badly drawn and uncertain and embarrassing in its
effects (3) I suggest that you
take HM’s pleasure as to whether she thinks that it would be sufficient
for her
authority over the Royal Family ??? A. the common law
power of ? and approbation of the marriages of her children and
grandchildren
and the heir presumptive without (a) the ? (b) the the ? B. the power of
Parliament to exclude from the succession by statute if necessary ?? (4) Although I think
that the Act should be repealed subject to HM’s view on (3) above, it
must be
feared that it would still be necessary to have a billto give effect to
Princess Margaret’s renunciation of her rights.
It seems to be Her own and the general opinion that she should
do so. In
my view it would be better to introduce the measure repealing the Royal
Marriage Act fiest but to state that it would be followed by another
giving
effect to HRH’s renunciation. I am sorry to deluge
you with paper. Yours ever Marriage ceremony The Marriage Act 1836
introduced the method of marriage before a registrar but section 45 of
the Act
provided that the Act should not extend to the marriage of any of the
Royal
Family. The Act of 1836 was
repealed and replaced by the Marriage Act 1949, s. 79(5) of which
provides that
nothing in the Act is to affect any law or custom relating to the
marriage of
members of the Royal family. Thus legislation would
be necessary before a member of the Royal Family could be married in Moreover it would
not be possible without ad hoc
legislation for the marriage to take place in the circumstances
contemplated in
the present case. Section 26 of the
Marriage Act 1949 confines the marriages which may take place on a
registrar’s
certificate (as opposed to marriages after publication of banns and
marriages
on the authority of a special license or an ordinary licence granted by
the
ecclesiastical authority) to – (1) marriages in a
registered building (2) marriages in the
office of a superintendent registrar (3) marriages
according to the rites of the Church of England apart from two special
cases not relevant here. As to (1), a
registered building must be one ? as a place of religious worship and
the
appiclation for registration must be supported by a certificate signed
by 20
householders stating that they have used the building as their usual
place of
public religious worship for at least one year before the application
(s 41 of
1949 Act). As to (3), a marriage
according to the rites of the Church of England can be solemnized only
by a
clergyman (s. 17 of 1949 Act). Private 27.7.55 My dear Lord
Chancellor, I am writing to thank
you for seeing me yesterday afternoon and for all that you told me. It is a comfort to me, as I am sure it will
be to the Queen, to know that you are prepared at any time to advise
Her
Majesty in your capacity of Keepr of the Queen’s conscience. As you know I think that it is all important
that if the matter of our discussion becomes a live issue the
Commonwealth
Governments (exccluding India) should be brought into it at once, but I
do not
fear that any one of them could or would quarrel with the manner in
which, at
this stage, your advice is being sought or given. I have read your Aide
Memoire on Royal Marriages very carefully, particularly paragraph III,
and I
will take an early opportunity of giving it to the Queen. Before our
conversation yesterday I had not fully appreciatetd the point which you
made in
paragraph III A: that it would be the constitutional duty of the
Sovereign to
consult and act on the advice of Ministers in giving or refusing assent
to the
marriage of a Royal person – particularly if that person were high up
in the
line of succession to the throne. Nor had I properly
understood that if the person concerned with the marriage wished to
renounce
his or her rights to the throne it would primarily be a matter for
Ministerial
consideration and advice. I now hope that I
understand both these points correctly. It would, as I
explained, be the greatest help to the Queen if you could tell me what
course
Her Majesty should seek to pursue if she were confronted with a
situation such
as we have envisaged. In other words should
she counsel the member of the Royal Family concerned to ask permission
to marry
through the Privy Council – knowing that such permission would be
unlikely to
be given – in order that the procedure in section 2 of the Royal
Marriages Act
1772 could then be followed? Or would it be preferable for the Queen to
ask the
Government of the day to introduce a Bill straight away to remove the
member of
the Royal Family from the succession and, at the same time, from the
provisions
of the Royal Marriages Act 1772? yours sincerely, Michael Adeane TOP SECRET PERSONAL First of all, may I
thank you for your letter conveying Her Majesty's permission and most
kind and
gracious message. Coldstream has told you that I shall be back in I have been
considering the problem - I hope unnecessarily - from the angle of
being faced
with quick action. I am therefore
setting out the points which I think that you should have specially in
mind. As I see it, the
procedure of the Royal Marriages Act would work like this:- (1) An
application by the Royal Personage
concerned to Her Majesty for Her consent to be signified under the
Great Seal
and declared in Council. (2) A
refusal (after advice as set out in my aide
memoire). (3) Thereafter
notice by the Person concerned to
the Privy Council which is directed to be entered in the books thereof. (4) Delay
of a year (N.B. Both Houses of
Parliament would have to carry a Motion to defeat the Royal Personage's
wish.
The probability is no Motion in either House but a Motion in the
Commons is
possible.) The unpleasant
features of that course are:- (1) A leak at the
stage of taking advice and unpleasant publicity. (2) Questions
in the various Parliaments of the
Commonwealth to the respective Governments as to the advice given, (3) The
possibility of undignified Debate in
these Parliaments. (4) The
possibility that there would be
opposition here or in any Commonwealth country to the Royal Personage
or Her
issue succeeding to the Crown. (5) The
question of the future status of the Royal
Personage's husband would inevitably arise, e.g. whether rank should be
conferred upon him or how far this would be considered an act of
recognition
inconsistent with the refusal of consent. (The question of financial
provision
would also require consideration.).
I deal with each of the foregoing
matters in turn. (1} There would be
unpleasant publicity in any event when the notice of the intended
marriage is
given to the Privy Council. It is for consideration whether the
publicity at an
earlier stage makes any material difference. (2) and (3) As stated
in the aide memoire, Ministers must assume the responsibility for the
advice
given and take the course which would cause least embarrassment to all
concerned. (4) My own view is
that with our happy ostrich-like national characteristics, no-one would
treat
this as a serious possibility. (5) This difficulty
must exist and one can only hope that solviter ambulando would apply. I now consider the
alternative of asking the Governments of the Commonwealth to agree to
legislation for exclusion from the succession and freedom from the
Royal
Marriages Act. I venture to note the following points:- (1) The
expression of the wish to be excluded,
although it would receive sympathy, will do harm to the Monarchy as an
institution. (2) The
real purpose of the legislation will be
taken to be to permit the Royal Personage to marry a divorced person. (3) This
would embarrass a number of Commonwealth
Governments who would be reluctant to agree. (4) Any
Government in which I have served would
be anxious to meet Her Majesty's wishes, yet I wonder if Her Majesty
would
desire to put the Government in the position of being politically
embarrassed. On the facts at
present before me, my inclination leans towards the first of these
alternatives. As I said to you, it
is my firm opinion that the position of the Monarchy is so strong - I
think the
highest in our history - that it can ride the difficulty however it
comes up;
but this does not diminish the need for making the right decision. I hope the foregoing
may be of some help. K Lieutenant Colonel The
Right Honourable Sir Michael Adeane, K.C.B., K.C.V.O. PERSONAL AND
CONFIDENTIAL I received your letter
of the 12th October and its enclosed drafts this morning, and I have
had an
opportunity of a preliminary study of them, I am enclosing a
minute to you telling you the Lord Chancellor's views on the proposal
that any
marriage should be before a Registrar in May I mention one
preliminary point - it runs through most of your admirable drafts. The
language
suggested seems to imply that the "serious difficulty" about giving
consent under the Act of 1772 would be greatly diminished, or would
disappear altogether,
if succession is given up. The point arises most plainly in your draft
A, where
the word "therefore" in the third sentence is (if I am right)
misleading. There are other reasons, besides the question of the
succession,
which affect the consent. The truth is that Parliament, representing
the
general body of subjects, must have the last word here and I should
have
thought that it might be wise to show some implied recognition of this
fact in
draft A. If there is anything in this,
some formula on the following lines might be considered instead of the
third
and fourth sentences of draft A : "It is my wish
that before contracting this marriage, my rights of succession to the
Throne
and the rights of those whose claim to the succession might otherwise
derive through
me, should be abrogated. I understand
that it would be necessary to pass legislation before my desires could
be
fulfilled and I most earnestly pray that such a course may commend
itself to
Your Majesty and to Parliament." I have not sent a copy
of this letter or the accompanying note to Adeane, For you may be in
possession
of information which would put an entirely different complexion on the
foregoing points. The Right Honourable Sir Norman Brook,
G.C.B. Confidential Mydear Coldstream, As you told me that
the Lord Chancellor was leaving I shall, of course,
write to the Lord Chancellor himself in answer to his letter, but I do
not
propose to do so until he returns to the Yours sincerely,
Michael
Adeane Sir George Coldstream,
K.C.B. 14th November. 1955 PERSONAL AND TOP
SECRET My dear Coldstream, In the course of an
interview with Laithwaite on Saturday,
November 12th, Norman Robertson referred to the possibility of
amendment of the
Royal Marriages Act, 1772. I was present for that part of the
conversation. The High Commissioner
said that it seemed probable from the Prime Minister's reply to Colonel
Lipton's question on the 1st November and from the comments in the
Press upon
it that the question of some revision of the Act would be brought up,
possibly
at the Prime Ministers' meeting. We said that we had no information to
show
whether or not this would prove to be the case, but that evidently the
possibility of consideration of revision at some future date was not
excluded
in the Prime Minister's reply. The High Commissioner went on to suggest
that if
so, the idea should be injected into our thinking that the Royal
Marriages Act
was not a matter affecting the succession to the Throne and therefore
was not
one on which it was necessary formally to bring in other Commonwealth
Governments. Obviously if there were any question of amendment informal
consultation with other Prime Ministers about the policy behind the
amendment
proposed would be desirable, but he thought that the Government in We promised to convey
to the appropriate legal authorities the substance of the High
Commissioner
remarks so that they might stand on record if and when this question
comes
under active consideration. Hence this
letter. I need hardly add that while it
is interesting to have this expression of the Canadian approach to such
a
question it does not at all follow that it would be shared by all other
Commonwealth countries (e.g. Before this part of
the conversation ended the High Commissioner expressed the hope that,
if there
were any question of raising this matter at the Prime Ministers'
meeting,
advance notice would be given to other Prime Ministers. I am sending copies of
this letter to Brook and Rowlatt. Yours ever,
A.
F. ? Sir George Coldstream,
K.C.B. TOP SECRET Lord Chancellor Royal Marriages Aide Memoire 1. The
projects for legislation
canvassed in the Lord Chancellor's draft Memorandum for the Cabinet of (1)
A Bill dealing simply with Princess
Margaret and her descendents. (2)
To amend the Act of 1772 for the purpose
of removing its worst features, viz: the
undue wideness and uncertainty of the persons to whom it applies, and
limiting
its application to a narrow circle of persons immediately concerned
with the
succession, i.e. Under this plan the
stringency of the sanctions of the Act of 1772 would be relatively
defensible. No unfamiliar conceptions
would be
introduced: it might be acceptable by the Dominions without undue
argument: and
would probably work without difficulty for a considerable period. The legislation would
also cover the exclusion from the
ordinary law of marriages in This was the proposal
favoured by the Lord Chancellor. (3)
The four Law Officers disliked the
proposal at (2) above on the grounds Because the Law
Officers realised that these proposals could require a good deal of
working out
they were in favour of a Bill limited strictly to the case of Princess
Margaret, coupled with a public declaration that the question of an
appropriate
solution to the difficulties surrounding control of Royal Marriages
would be
vigorously sought in the near future in consultation with the Dominions. 2. The
following are the headings
of advice which the Lord Chancellor gave to the Prime Minister:- 3. It is essential on
practical grounds that the law as to the extent of the Royal consent to
marriages
of persons near to the succession of the throne should not operate
differently
here and in the Dominions. GPC 10-II-56
C. d'O. Farran.(*)
50
51 Other
than the Duke of Windsor and his issue.
They are expressly exempt by His Majesty's
Declaration of Abdication Act, 1936 (1 Edw. VIII & 1 Geo. VI, c.
3), s. 8.
55 Idem.
60 Eldest daughter of
Queen
"Victoria, see infra, note (61).