NOTES OF CASES

Date01 May 1956
Publication Date01 May 1956
DOIhttp://doi.org/10.1111/j.1468-2230.1956.tb00363.x
NOTES
OF
CASES
AN
UNUSUAL
CLAIM
TO
BRITISH
NATIONALITY
IT
must be rare that a decision on the interpretation of an ancient
British statute attracts
so
much attention all over Europe as did
that
of
the Court of Appeal in
Prince Ernest
of
Hanover
v.
Attorney-Genend.l
Equally rare must be the spectacle of some
four hundred persons of the highest lineage suddenly finding them-
selves possessed of British nationality regardless of their amount
of actual connection with the United Kingdom, which may be
so
remote as to have been entirely forgotten.
If
the decision of the
Court of Appeal is correct-and
it
is submitted that
it
clearly
is-
then the royal families of Holland, Greece, Norway, Sweden, and
Denmark all have British, as well as their own, nationality, to
say nothing of the very numerous ex-royal families also affected
by the decision.2 The case also raises more general points as to
the interpretation of old Acts, which clearly have
a
wider scope
than merely in nationality matters. The school of interpretation
which favours
a
strict interpretation of enactments, as obviating a
judicial usurpation of the legislature’s functions, gained here the
unanimous approval of the Court of Appeal, while Vaisey
J.
in
the
court below clearly leant in favour of letting external considera-
tions affect his approach to the statute. the
heir-male of George
111,
and a near relative of the British royal
family.‘ In this action he sought a declaration that he is a
British subject, relying
on
the Princess Sophia Naturalization Act,
1705.‘
Section
1
runs:
.
.
.
Princess Sophia
.
.
.
of Hanover
and the issue
of
her body and all persons lineally descending from
her, born
or
hereafter to be born, be and shall be to all intents
The plaintiff is a
Prince of Great Britain and Ireland,’y
[1955]
3
All E.R.
647.
The number may be exaggerated,
cj.
the Attorney-General’s mention
of
Belgian and Spanish royalties (barred by
8.
2
as &man Catholic) in nrgo-
ment.
(The
Tames.
February
17,
1055.)
Those born in the United Kingdom,
e.g..,
the Crown Prince of Norway, have also been included though their
British nationality does not dcpyl on the
?YO5
Act.
On
the other hand,
even tho
issuo
of
non-royal morganatic marriages are presumably
included.
Per
Vaise
J.
([1955] 1
All
E.R.
746, 748).
As Prince Ernest was
not
penalised the Titles Deprivation Act,
1917
(though his father and grand.
father weref, he
is
still entitled to
tI$
style. But Vaisey
J.
errs in stating
that
he
is still a “Royal Highness. By letters patent
of
July,
1014,
the
issue of his parents was given the style
of
“Highney,”
a
lower style.
Hence he should not have been styled
in
this case as Royal Highness.”
Even in Qermany, all such prefixes were abolished by a law
of
June
23,
1920
(Almanach
d:
Gotha),
but no $ubt as
de
jure
King of Hanovcr he may by
courtesy
use
Royal Highness there.
His
mother
is
descended from Queen Victoria: his brother bas rnnrrierl a
sister
of
the Duke
of
Edinburgh.
4
&
5
Anne, c.
4
(or
c.
16).
289
VOL.
19
290
THE
MODERN
LAW
REVIEW
and purposes whatsoever deemed, taken and esteemed natural born
subjects of this kingdom, as if the said Princess, and the issue of
her body, and all persons lineally descending from her, born
or
hereafter to be born, had been born within this realm of England,
any law, statute, matter,
or
thing. whatsoever to the contrary
notwithstanding.” Section
2
excludes Roman Catholics from the
benefits of section
1.
The Prince relied on his undoubted descent
from Sophia, who,
it
will be remembered, was called to the suc-
cession of the British throne with the “heirs of her body being
Protestants
’’
by the Act of Settlement,6 and on his Protestant
faith. Neither could be denied.
The matter thus became one of pure statutory interpretation:
did the
1705
Act mean what it appeared to mean and what the
plaintiff contended that it meant,
i.e.,
the provision of British
nationality for all Protestant descendants of Sophia
ad
infiniturn,‘
or
should some limit be placed on its
apparently clear and
unambiguous
words,
and,
if
so,
what limit? English law has
never adopted the Scots rule of desuetude and hence
it
was not
open to argue directly that the Act had been rendered obsolete by
lack of recourse to it
for
centuries.8 But Vaisep
J.,
while agreeing
that this was the general position, was clearly very much impressed
by the argument that “there is,
I
understand, no record
of
the
Act of Anne ever having been put into any practical operation
or
referred to
or
relied on
or
regarded as relevant in any way.”o
He derived from this, it may be assumed, his view that the Act
was intended to have a purely temporary affect-a view which he
then supported by reference to some words in the Preamble to
which we shall return. But first it must be observed that the
case
of
Duke
of
Brunswick
v.
King
of
€Zanoverlo
contains two
direct references to the
1705
Act, where
it
was used in argument
and mentioned by the judge in surveying the plaintiff’s arguments
without any contradiction
or
ridicule.
It
seems surprising that
this reference was overlooked by those engaged in the recent case.
But the weakness of any such reliance on a
dead-letter
argu-
ment is shown by the fact that
it
was not at all relied on by
the Attorney-General in the Court of Appeal.”
6
As
re-enacted in the Acts
of
Union,
1707
and
1800.
7
By. the British Nationality Act,
1948,
8.
34 (3)
the
1705
Act
was
repealed,
but by
8.
12
all existing British subjects became British citizens of the United
Kingdom. This menns that the
1705
Act no longer applies to after-born
persons. This includes Prince Ernest’s own children. But
scmblc
they
could claim under other provisions of the
1918
Act.
8
The
1705
Act
h:d
been ovwfooked in ollicial qoartera,
c.g.,
the Duke
of
Edinbnrmh was naturalised before his engngement to the Queen on the
assumpt%n that he
was
a
Greek citizen. By
the
1705
Act he was already
British.
10
(1844)
G
Beav. 1:Pt
pp.
19
and
34.
11
Pcr
Evershed
M.R.,
640.
Cf.
Romer
L.J.
(p.
661):
it
is
no more
permissible, in
my
judgment, in construing
a
Rtntiite thnn it is in construing
R
deed,
a
will.
or nny other writtcn inxtriiment.
to
arrive at
n
concliision
as
to the meaEing of the language used in the light
of
CVCntS which happened
afterwards.
9
[1955] 1
All
E.R.
746, 748.

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