Attorney-General v HRH Prince Ernest Augustus of Hanover
[1957] AC 436[1957] 1 All ER 49
[1957] WLR 1
(Judgment by: Lord Morton of Henryton)
Attorney-General
v.HRH Prince Ernest Augustus of Hanover
Judges:
Viscount Simonds
Lord Normand
Lord Morton of Henryton
Lord Tucker
Lord Somervell of Harrow
Subject References:
Alien
British nationality
Lineal descendant of Electress Sophia
4 Anne c 4 or 4
&
5 Anne c 16
British Nationality Act, 1948 (11
&
12 Geo 6 c 56), s 12.
Statute
Construction
Preamble
Acts in pari materia
Ex post facto inconvenience or absurdity
Whether clear en-acting words restricted
4 Anne c 4 or 4
&
5 Anne c 16.
Case References:
Powell v Kempton Park Racecourse Co Ltd - [1899] AC 143
Cape Brandy Syndicate v Inland Revenue Comrs - [1921] 2 KB 403
Ormond Investment Co v Betts - [1928] AC 143
Brett v Brett - (1826) 3 Add. 210
Crespigny v Wittenoom - 1792 4 Term Rep 790
Suggested reading:
Hearing date: 22, 23, 24, 25, 29, 30 October 1956
Judgment date: 5 December 1956
Judgment by:
Lord Morton of Henryton
My Lords, only one question arises on this appeal: What is the meaning of a few words in the enacting portion of the short statute 4 Anne c 4 of 1705? These words are:
"be it enacted ... That the said Princess Sophia Electress and Dutchess Dowager of Hanover and the Issue of Her Body and all Persons lineally descending from Her born or hereafter to be born be and shall be to all Intents and Purposes whatsoever deemed taken and esteemed natural born Subjects of this Kingdom as if the said Princess and the Issue of Her Body and all Persons lineally descending from Her born or hereafter to be born had been born within this Realm of England ... "
The argument centres round the words, twice repeated,
"the Issue of Her Body and all Persons lineally descending from Her born or hereafter to be born."
My Lords, these words, standing by themselves, are surely capable of only one meaning. They include everyone, whenever born, who is a lineal descendant of the Princess Sophia. This was recognised by Vaisey J and by all the members of the Court of Appeal. Vaisey J referred to these words as ([1955] 1 All ER at p 747) "the apparently clear and unambiguous terms of the enacting provisions of the Act of Anne", and later referred to them as (ibid, at p 751) "unqualified and plain in their meaning when standing alone." The Attorney General, however, contended that the class described in these words is limited to persons born within the lifetime of Queen Anne, who died only nine years after the Act was passed. He relied principally on the words of the preamble to the Act, which have already been read, but he also placed some reliance on the statute 4 Anne c 1 of 1705. He further contended that the construction put forward on behalf of the respondent led to an absurd result. Other matters mentioned by the Attorney General did not, I think, impress your Lordships, and I do not find it necessary to refer to them.
My Lords, to my mind the Attorney General is faced, at the outset, with one great difficulty. His argument really amounts to an invitation to your Lordships to perform a surgical operation on the enacting part of the statute by inserting, immediately after the words "born or hereafter to be born" the words "in Your Majesties Life time". Now if the legislature had intended to limit the class of persons to be naturalised, I can think of no reason why these words should not have been inserted. These very words "in Your Majesties Life time" had already been used in the preamble, immediately before the enacting part, and it would have been the most natural thing in the world to repeat them in the enacting part, if the legislature had intended so to limit the class. Instead of so doing, the legislature gave a strong indication of a contrary intention. We find in the preamble a reference to "the said Princess Sophia ... and the Issue of Her Body and all Persons lineally descending from Her", and in the enacting part, a few lines later, the same words are repeated, with the addition of the words "born or hereafter to be born".
Surely, my Lords, these words can only have been added in order to make it abundantly clear that all descendants of the Princess Sophia, whenever born, were to be naturalised. In the face of these words, I find it hard to imagine any context, or any circumstances, which should persuade your Lordships to perform the surgical operation already mentioned, and the matters on which the Attorney General relied fall far short of persuading me to perform it. I turn first to his submission based on the following words in the preamble:
"And to the End the said Princess Sophia Electress and Dutchess Dowager of Hanover and the Issue of Her Body and all Persons lineally descending from Her may be encouraged to become acquainted with the Laws and Constitutions of this Realm it is just and highly reasonable that they in Your Majesties Life time (whom God long preserve) should be naturalized and be deemed taken and esteemed natural born Subjects of England."
The Attorney General submitted that these words show the intention of Parliament that only those descendants of the Princess Sophia who were born in the lifetime of Queen Anne were to be naturalised. My Lords, I do not so read the words. I think that the words "that they, in Your Majesties Life time ... should be naturalized", etc, do not operate to limit the class but merely state the view that the naturalisation should be effected by an Act passed in Queen Anne's lifetime. This is, to my mind, a more natural meaning of the words, and I do not think it is necessary to make any addition to, or transposition of, the words used in order to give them that meaning. Moreover, there are, I think, some strong objections to the construction for which the Attorney General contends. In the first place, it would be strange indeed if Parliament, having already stated its object to be that the issue of the body of Princess Sophia and all persons lineally descending from her should be encouraged to become acquainted with the laws and constitutions of England, should immediately go on to limit the class of persons to be naturalised, for this very purpose, to persons born in the lifetime of Queen Anne. Secondly, if this passage had been intended to bear the meaning attributed to it by the Attorney General, surely the words "in Your Majesties Life time" would have been linked with the description of the class and not with the words "should be naturalized". The Attorney General sought to gain support from the words "and be deemed taken and esteemed natural born Subjects of England", but it seems to me that these words merely state the effect of naturalisation.
I would not venture to say, my Lords, that the construction of the preamble which appeals to me is the only possible construction, but it seems to me equally impossible to say that the construction for which the Attorney General contends is the only possible construction. The preamble is, to put it at its highest in favour of the Attorney General, an ambiguous document, and, as such, it cannot in any way control the words of the enacting part. In fact, if the preamble were clear one way and the enacting part were equally clear the other way, there can be no doubt that the latter must prevail.
The argument based on the Act 4 Anne c 1 of 1705 is to this effect. This Act refers only to persons living at the time when it was enacted. This is shown by the words "by reason of their being beyond the Seas", since no person could be beyond the seas unless he or she were alive. This was the Act which paved the way to the Act now under consideration, and your Lordships should place some limit as to time of birth on the class of persons covered by the latter Act. My Lords, I can find no force in this argument. It is clear, from any view of the preamble to the latter Act, that it extended at least to persons who came into existence between the passing of the Act and the death of Queen Anne, and I would adopt the words of Romer LJ in the Court of Appeal ([1955] 3 All ER at p 662):
"... as, on any view, the legislature departed in the second Act from the very limited scope which was envisaged by the recital in the first, the only question, as it seems to me, is as to the extent of such departure. I, therefore, find no assistance, in construing the second Act, from the language of the first."
As to the argument that the enacting words are absurdly wide in their scope if they are given their natural meaning, it must be borne in mind that the matter must be viewed from the standpoint of those who were legislating in the year 1705, and I would again quote from the judgment of Romer LJ (ibid, at p 622):
"I see nothing necessarily or inherently absurd in the conception that Parliament was intending to provide in 1705 that all those on whom the British Crown might subsequently devolve by virtue of the Act of Settlement should become British citizens at birth; and Parliament was presumably alive to the fact that if the class of persons affected by the Act should become eventually too large, it could be closed by subsequent legislation. It appears to me that a far greater degree of absurdity than that which has been suggested in this case is required to justify the court in departing from clear enacting language, assuming that absurdity does, in itself, afford ground for any such departure."
If the enacting words are to bear their natural meaning, the respondent must succeed, for it is admitted that he is a lineal descendant of the Electress Sophia and that he is, and at all times has been, a Protestant, so that he is not excluded by the proviso to the Act now under consideration.
In my view, the Court of Appeal arrived at the correct conclusion and this appeal should be dismissed. I agree with the observations of my noble and learned friend on the Woolsack as to the Act of Union.