Attorney General v Prince Ernest Augustus of Hanover

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeViscount Simonds,Lord Normand,Lord Morton of Henryton,Lord Tucker,Lord Somervell of Harrow
Judgment Date05 Dec 1956
Judgment citation (vLex)[1956] UKHL J1205-1

[1956] UKHL J1205-1

House of Lords

Viscount Simonds

Lord Normand

Lord Morton of Henryton

Lord Tucker

Lord Somervell of Harrow

H.M. Attorney-General
and
H.R.H. Prince Ernest Augustus of Hanover

Upon Report from the Appellate Committee, to whom was referred the Cause Her Majesty's Attorney-General against His Royal Highness Prince Ernest Augustus of Hanover, that the Committee had heard Counsel, as well on Monday the 22d, as on Tuesday the 23d, Wednesday the 24th, Thursday the 25th, Monday the 29th and Tuesday the 30th days of October last, upon the Petition and Appeal of Her Majesty's Attorney-General, of the Royal Courts of Justice, Strand, London, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 16th of November 1955, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of His Royal Highness Prince Ernest Augustus of Hanover, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 16th day of November 1955, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.

Viscount Simonds

My Lords,

1

The Court of Appeal has declared that H.R.H. Prince Ernest Augustus of Hanover was, immediately before the coming into force of the British Nationality Act, 1948, a British subject and that by virtue of the provisions of that Act he is now a British subject. From this decision, which is said to affect a number of other persons who may or may not want to share the privileges or obligations of that status, the Attorney-General has appealed to your Lordships' House. The question is to be answered upon a consideration of a statute passed just 250 years ago, the Statute of 4 Anne c. 4 of 1705, but before I look at its provisions I will state the relevant facts which are not in dispute.

2

The Respondent is a lineal descendant of Princess Sophia, Electress and Duchess Dowager of Hanover and granddaughter of King James the First. He is not a Papist and does not profess the Popish religion—I use the language of the Statute in mentioning a fact which is otherwise irrelevant.

3

Inasmuch as the Statute must be regarded as in some measure complementary to the Bill of Rights and the Act of Settlement, it is proper to remind your Lordships that, the little Duke of Gloucester, Queen Anne's son, having died in 1700, the joint effect of those two Acts was that upon the death of Queen Anne without heritable issue the Crown of England would descend upon the Electress Sophia and the heirs of her body being Protestants. And it is not to be doubted that, though in 1705 the Queen was but 40 years of age, at least the possibility of her early death was not absent from the minds of Her subjects, whether they supported the Hanoverian succession or inclined openly or covertly to James Edward, now called "the old Pretender". In the same year there were living six lineal descendants of the Electress: her eldest son, who became King George I, her second son Maximilian William, her third son Ernest Augustus Duke of York, her grandchildren, the children of George I, George who became George II, and Sophia Dorothea, and her grandson Frederick William, the son of her daughter Sophia Charlotte and Frederick I King of Prussia.

4

It is proper, too, to have in mind what was the state of the law in regard to naturalisation in the year 1705. By the common law only those persons who were born on English soil were subjects of the English Crown, nor was there, until a much later date, namely the passing of the Aliens Act, 1844, any general Act enabling aliens to be naturalised. But from early times, apart from denization by Letters Patent with which we are not here concerned, special Acts of Parliament were passed conferring the status of natural born subjects upon individuals or more or less closely defined classes of individuals. Of the later Acts an example may be found in the Statute of 15 Charles II c. 15, which enabled all aliens setting up certain specified trades in this country to enjoy all privileges whatsoever as the natural born subjects of the realm. No Act was brought to the notice of the House which purported to confer such status upon persons as yet unborn, whether or not they were born on English soil or took the Oath of Allegiance to the Crown of England.

5

I will refer to one other aspect of the historical background and I do so because particular reliance was placed upon it by the Attorney-General. By an Act 7 James I c. 2 of 1609 entitled "An Act that all such as are to be naturalized, or restored in Blood, shall first receive the Sacrament of the Lord's Supper, and the Oath of Allegiance and the Oath of Supremacy", it was provided as follows:—

""Forasmuch as the Naturalizing of Strangers, and restoring to Blood of Persons attainted, have been ever reputed Matters of mere Grace and Favour, which are not fit to be bestowed upon any others than such as are of the Religion now established in this Realm;" Be it therefore enacted by the King's Most Excellent Majesty, the Lords Spiritual and Temporal, and the Commons, in this present Parliament assembled, That no Person or Persons, of what Quality, Condition or Place soever, being of the Age of Eighteen Years or above, shall be naturalized or restored in Blood, unless the said Person or Persons have received the Sacrament of the Lord's Supper within One Month next before any Bill exhibited for that Purpose, and also shall take the Oath of Supremacy, and the Oath of Allegiance, in the Parliament House, before his or her Bill be twice read: And for the better effecting of the Premises, Be it further enacted by the Authority aforesaid, That the Lord Chancellor of England, or Lord Keeper of the Great Seal for the Time being, if the Bill begin in the Upper House, and the Speaker of the Commons House of Parliament for the Time being, if the Bill begin there, shall have Authority at all Times during the Session of Parliament, to minister such Oath and Oaths, and to such Person or Persons, as by the true Intent of this Statute is to be ministered. This Act to take place from and after the End of this present Session of Parliament."

6

It was the existence of this Act, whose purpose was plain upon its face, that made it necessary to pass an Act preliminary to that which we have to consider. It was an Act of 4 Anne c. 1 of 1705 and was entitled "An Act for exhibiting a Bill in this present Parliament for naturalizing the Most Excellent Princess Sophia, Electress and Duchess Dowager of Hanover, and the Issue of Her Body." I set it out in full:—

"An Act for exhibiting a Bill in this present Parliament for naturalizing the Most Excellent Princess Sophia, Electress and Duchess Dowager of Hanover, and the Issue of her Body.

WHEREAS the Most Excellent Princess Sophia, Electress and Duchess Dowager of Hanover, and the Issue of Her Body, are to be naturalized, and by reason of their being beyond the Seas, they cannot qualify themselves in order thereto, according to the Act made in the seventh Year of the Reign of King James the First, which requires every Person to receive the Sacrament of the Lord's Supper, within one Month before any Bill for Naturalization be exhibited, and also take the Oaths of Supremacy and Allegiance in the Parliament House, before His or Her Bill be twice read:" Be it enacted by the Queen's Most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and the Commons, in this present Parliament assembled, and by the Authority of the same, That a Bill for the Naturalization of the said Most Excellent Princess Sophia, Electress and Duchess Dowager of Hanover, and the Issue of Her Body, shall and may be exhibited and brought into this present Parliament, and twice read; any Law, Statute, Matter or Thing whatsoever to the contrary notwithstanding."

7

Two expressions in this Act deserve notice. First, the expression "the issue of her body", that is of the body of the Princess Sophia, is used once in the title, once in the preamble and once in the enacting part. Secondly, in the preamble the reason for the Act is stated in the words "by reason of their being beyond the seas". If it was our task, as it is not, to construe this Act, it might well be that the generality of the words "issue of her body" would be held to be limited to those who were at the date of the Act "beyond the seas" and not to include persons then unborn. Upon this I express no opinion, for, whatever might be the intention of Parliament to be gleaned from the earlier Act, it is clear that a different and wider intention inspired the later one and it is only from the consideration of its language that it can be determined how different and how much wider was its intention.

8

So I come to the Statute 4 Anne c. 4, and for convenience set it out in full:—

"An Act for the Naturalization of the Most Excellent Princess Sophia, Electress and Duchess Dowager of Hanover, and the Issue of Her Body.

"WHEREAS the Imperial Crown and Dignity of the Realms of England, France and Ireland, and the Dominions thereto belonging, after the...

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