Attorney-General v HRH Prince Ernest Augustus of Hanover
[1957] AC 436[1957] 1 All ER 49
[1957] WLR 1
(Judgment by: Viscount Simonds)
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:
Viscount Simonds
My Lords, the Court of Appeal has declared that HRH 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 Lodrships' House. The question is to be answered on 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.
The respondent is a lineal descendant of Princess Sophia, Electress and Duchess Dowager of Hanover and grand-daughter of King James 1. 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. 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, on the death of Queen Anne without heritable issue, the Crown of England would descend on 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 forty 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 1, her second son Maximilian William, her third son Ernest Augustus Duke of York, her grandchildren, the children of George 1, George who became George 2, and Sophia Dorothea, and her grandson Frederick William, the son of her daughter Sophia Charlotte and Frederick 1 King of Prussia.
It is proper, too, to have in mind what was the state of the law in regard to naturalisation in 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, viz, 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 on 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 2 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 on persons as yet unborn, whether or not they were born on English soil or took the oath of allegiance to the Crown of England.
I will refer to one other aspect of the historical background, and I do so because particular reliance was placed on it by the Attorney General. By an Act, 7 James 1 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 attained, 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 Englnd, 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 and 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."
It was the existence of this Act, whose purpose was plain on 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 Dutchess 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 Dutchess Dowager of Hanover and the Issue of her Body.
"WHEREAS the most Excellent Princess Sophia Electress and Dutchess 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 Dutchess 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."
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. On 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.
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 Dutchess 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 Demise and Death of Your Majesty our most gracious Sovereign without issue of Your Body is limited by Act of Parliament to the most Excellent Princess Sophia Electress and Dutchess Dowager of Hanover Grandaughter of the late King James the First and the Heirs of Her Body being Protestants And whereas Your Majesty by your Royal Care and Concern for the Happiness of these Kingdoms reigns in the Hearts and Affections of all Your People to their great Comfort and Satisfaction and will be a glorious Example to Your Royal Successors in future Ages 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: We Your Majesties most dutiful and loyal Subjects the Lords Spiritual and Temporal and Commons in Parliament assembled do most humbly beseech Your Majesty that it may be enacted and therefore 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 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 Any Law Statute Matter or Thing whatsoever to the contrary notwithstanding
"Provided always and be it further enacted and declared by the Authority aforesaid That every Person and Persons who shall be naturalized by virtue of this Act of Parliament and shall become a Papist or profess the Popish Religion shall not enjoy any Benefit or Advantage of a natural born Subject of England but every such Person shall be adjudged and taken as an Alien born out of the Allegiance of the Queen of England to all Intents and Purposes whatsoever Any thing herein contained to the contrary notwithstanding."
The Act having been set out in full, the rival contentions may now be stated. For the respondent, it is contended that he is a person answering to the description "issue of the body of the Princess Sophia", a person lineally descending from her and "hereafter born", that is, born after the passing of the Act, and that he is, therefore, within the scope of the enacting provision and is entitled to be deemed, taken and esteemed a "natural born subject of this Kingdom". It cannot be denied that this contention accords with the prima facie meaning of the enacting words. For the Attorney General, on the other hand, it was contended that the generality of those words must be restricted to persons born in the lifetime of Queen Anne, such a restriction being imposed as a matter of construction of the statute by a consideration of the context in which the words were found. And by "context" he meant both the historical and political background to which I have referred, and the state of the relevant law as well as the verbal context of the Act itself, including its preamble. In particular, he relied on the purpose of the Act, as stated in the preamble, that the persons to be naturalised should be encouraged to become acquainted with the laws and constitutions of the realm and, most strongly, on the conjunction (also in the preamble) of the words "they" and "in Your Majesties Life time". Here, it was urged, was an expression of the intent of Parliament clear enough to restrict the generality of the enacting words.
My Lords, the contention of the Attorney General was, in the first place, met by the bald general proposition that, where the enacting part of a statute is clear and unambiguous, it cannot be cut down by the premable [1] , and a large part of the time which the hearing of this case occupied was spent in discussing authorities which were said to support that proposition. I wish, at the outset, to express my dissent from it, if it means that I cannot obtain assistance from the premable in ascertaining the meaning of the relevant enacting part. For words, and particularly general words, cannot be read in isolation; their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use context in its widest sense which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern that the statute was intended to remedy.
Since a large and ever increasing amount of the time of the courts has, during the last three hundred years, been spent in the interpretation and exposition of statutes, it is natural enough that, in a matter so complex, the guiding principles should be stated in different language and with such varying emphasis on different aspects of the problem that support of high authority may be found for general and apparently irreconcilable propositions. I shall endeavour not to add to their number, though I must admit to a consciousness of inadequacy if I am invited to interpret any part of any statute without a knowledge of its context in the fullest sense of that word.
An important branch of the Attorney General's argument rested on the alleged absurdity and inconvenience which must result if no restriction is imposed on the general words--a result, he said, which must be presumed to have been foreseen in 1705. This is dangerous ground. A double assumption is made, the first, that Parliament foresaw the possibility of what has, in fact, happened, the second, that, foreseeing it, they would have thought it inconvenient or absurd. On the Attorney General's own interpretation, in addition to the six descendants of the Princess Sophia, including the Crown Prince of Prussia, living at the date of the Act, an unknown number might be born in the lifetime of Queen Anne who would be naturalised under it. However absurd we today may think an interpretation which would lead to most of the royal families of Europe being British subjects, I cannot say that, in 1705, there was such manifest absurdity as to entitle one to reject it. Nor can I say that, in those years of religious, dynastic and political conflict, Parliament would not have enacted it at the risk of its seeming absurd. Nor do I see any reason for limiting the general words to persons who, on the Queen's death, would, under the Act of Settlement, immediately succeed to the throne of England.
I reject, therefore, the argument in favour of restricting the meaning of the enacting words so far as it is based on any consideration other than that of the words of the statute itself. I turn, then, to the preamble. As I have already said, apart from the reason for the statute which is there stated, the argument rests on nothing more than the conjunction of the words "they" and "in Your Majesties Life time". It is urged that only those could be naturalised in Queen Anne's lifetime who were born in her lifetime, and this is a self-evident proposition, at least, if the word "naturalised" means the same thing as the words which follow--"and be deemed taken and esteemed natural born Subjects of England". But, my Lords, before I reach these words I have already learned from the earlier part of the preamble that I am concerned with the Princess Sophia and the issue of her body and all persons lineally descending from her. I know that at least some persons then unborn are to be naturalised by the Act and I proceed to the enacting part with a doubt already implanted in my mind that the expression "they in Your Majesties Life time should be naturalized" is a clumsy one, which may mean no more than that "an Act should be passed in Your Majesties Life time for naturalizing them". I read on, and find not only the same general words repeated, but emphasis lent to them by the addition of the words "born or hereafter to be born". Nor can I ignore that the omission of any restricting words is of great significance. Now, I do not suggest that it is impossible that words of this generality should be restricted by their context. But, if I may do so without adding to the number of conflicting generalisations, I would say that, for such restriction, a compelling reason must be found. Perhaps an obvious example may be found outside an Act in a principle of comity which confines its operation within the territorial jurisdiction of the enacting state; or it may be found in a repugnancy between the immediate enacting provisions and other provisions of the same Act. But, where it is in the preamble that the reason for restriction is to be found, the difficulty is far greater. For, as has so often been said, Parliament may well intend the remedy to extend beyond the immediate mischief. The single fact, therefore, that the enacting words are more general than the preamble would suggest is not enough.
Something more is needed, and here lies the heart of the problem. On the one hand, the proposition can be accepted that
"... it is a settled rule that the preamble cannot be made use of to control the enactments themselves where they are expressed in clear and unambiguous terms."
I quote the words of Chitty LJ which were cordially approved by Lord Davey in Powell v Kempton Park Racecourse Co Ltd ([1899] AC 143 at p 185). On the other hand, it must often be difficult to say that any terms are clear and unambiguous until they have been studied in their context. That is not to say that the warning is to be disregarded against creating or imagining an ambiguity in order to bring in the aid of the preamble. It means only that the elementary rule must be observed that no one should profess to understand any part of a statute or of any other document before he has read the whole of it. Until he has done so, he is not entitled to say that it, or any part of it, is clear and unambiguous. To say then that you may not call in aid with preamble in order to create an ambiguity in effect means very little, and, with great respect to those who have from time to time invoked this rule, I would suggest that it is better stated by saying that the context of the preamble is not to influence the meaning otherwise ascribable to the enacting part unless there is a compelling reason for it. And I do not propose to define that expression except negatively by saying (as I have said before) that it is not to be found merely in the fact that the enacting words go further than the preamble has indicated. Still less can the preamble affect the meaning of the enacting words when its own meaning is in doubt.
With these principles, if they can be called principles, in mind, I turn once more to the statute we have to consider, and I find, first, that it is only the narrower scope of the objective as stated in the preamble which is relied on to restrict the emphatic generality of the enacting words, and, secondly, that it is at least a matter of doubt what is the scope of the preamble itself. For, as I have already indicated, the clumsy phrase "they in Your Majesties Life time ... should be naturalized" is susceptible of meaning that an Act should be passed in the lifetime of the Queen for the naturalisation of her descendants born and unborn. In these circumstances, I must reject also the argument of the Attorney General which is based on the context of the preamble, and give to the enacting words "the Issue of Her Body and all Persons lineally descending from Her born or hereafter to be born" their prima facie and literal meaning.
I ought to mention, because the Attorney General attached a modest weight to it, an Act of the fourth year of George 3, whereby the then Prince of Brunswick Luneburg was naturalised as a British subject. He was, in fact, a lineal descendant of the Princess Sophia and the Act was unnecessary if the respondent's construction of the Act of 4 Anne is right, for he would be already a British subject. But I cannot allow this matter to weigh with me at all. I do not know why the Act was passed, whether because the earlier Act had, after sixty years, been forgotten, or because a doubt had been expressed and ex majore cautela it was desired to pass a special Act, or because Parliament flatly misinterpreted the earlier Act. I cannot regard it as a legislative interpretation of the earlier Act operating to give it a meaning which it would not otherwise bear.
Finally, I must refer to a question which has caused me some embarrassment. It is natural that this case, with its striking and unusual features, should arouse much public interest, and it happens that in the consequent discussion of it a point has been taken which was not debated in the courts below. It is that, whatever might have been the result if the question remained as it was before the union of England and Scotland, an Act of the English Parliament passed in 1705 could not be effective to confer the status of a British subject on a person born on foreign soil after the Act of Union. This point, which I state perhaps baldly and imperfectly, I thought it right to bring to the notice of the Attorney General and of counsel for the respondent. The Attorney General, having considered the point, came to the conclusion that it was not a good one. He briefly explained his reasons and, in effect, declined, as he was well entitled to do, to press it on your Lordships. In those circumstances, it was clearly not possible to pursue the matter further, and counsel for the respondent was not invited to deal with it. There it must rest. The House makes no pronouncement on it.
In the result, I am of opinion that the appeal should be dismissed and I move your Lordships accordingly.