|The Law of Succession to the Crown in New Zealand
(1999) 7 Waikato Law Review 49-72
By Noel Cox, LLM (Auckland)
Barrister of the High Court of New Zealand
Lecturer in Law, Auckland Institute of Technology.
In recent years there has been some speculation regarding the possibility of changes to the laws governing succession to the Crown. The local news media has tended to regard this as a matter for the British authorities, or as one which can somehow be resolved by non-legal means.1 But it is a debate which does raise important issues for New Zealand. The succession laws are not merely rules invented to amuse constitutional lawyers. They are rules which are in certain respects central to the constitution, and are important aspects of New Zealand independence.2
This article will explore three issues. Firstly, it will examine the existing New Zealand succession law. Secondly, it will discuss the ways and means by which this law can be changed. Thirdly, the article will discuss in what circumstances the succession ought to be changed.
II. THE NEW ZEALAND SUCCESSION LAW
The Constitution Act 1986 is the only piece of legislation enacted by the New Zealand Parliament which makes any direct reference to the succession law.3 Section 5 of the Constitution Act 1986 deals with the demise of the Crown.4 Section 5(1) states that:
[t]he death of the Sovereign shall have the effect of transferring all the powers, authorities, rights, privileges, and dignities belonging to the Crown to the Sovereign's successor, as determined in accordance with the Act of Settlement 1700 and any other law which relates to the succession to the Throne, but shall otherwise have no effect in law for any purpose.5
Section 5 (2) adds that every reference in any document or instrument to the Sovereign shall, unless the context otherwise requires, be deemed to include a reference to the Sovereign's heirs and successors.6
The Imperial Laws Application Act 1988 preserves the Act of Settlement 1700 (Eng)7 as part of the laws of New Zealand. But what is the "other law which relates to the succession to the Throne"?8 There are two possible sources of law, statute and common law.9
1. Statute law
Although the common law governing the succession to the Crown would appear to have remained common throughout the Queen's realms,10 the statute law may not have remained so. A germane example of this may be seen in the modern legislation governing regencies.11
Since 1937 the absence, illness or incapacity of the Sovereign has been dealt with in the United Kingdom by the Regency Acts 1937 and 1943 (UK).12 As a matter of construction of the law of England, United Kingdom Acts have not extended to New Zealand as part of New Zealand law after 1931, without an express declaration that New Zealand has requested and consented to the enactment.13
It is highly doubtful if the Regency Acts 1937 and 1943 originally extended to New Zealand, despite their subject matter and the failure of New Zealand to adopt the Statute of Westminster 1931 until 1947.14 But to make the matter clearer, the Royal Powers Act 1983 section 5 negates the application (if any) in New Zealand of the Regency Acts. However, by the Constitution Act 1986 it is provided that:
[W]here, under the law for the time being in force in the United Kingdom, the royal functions are being performed in the name and on behalf of the Sovereign by a Regent, the powers of the Sovereign in right of New Zealand shall be exercised in the name and on behalf of the Sovereign by that Regent.15
If British statutes enacted after 1931 are ineffective to regulate mere regencies, the effectiveness of any British Act of Parliament to alter the succession to the Crown of New Zealand itself must be doubted.
Be that as it may, if the British regency Acts did not extend to New Zealand, what precisely is meant by to Sovereign's successor as determined "in accordance with the Act of Settlement 1700 and any other law which relates to the succession to the Throne"?16 Can this include a Sovereign whose title depends solely upon a new, post-1931 (or 1947) Act of Parliament of the United Kingdom? What, if any, have been the consequences for the law of succession to the Crown which have occurred as a consequence of the development of the notion of a divisible Crown, and the evolution of dominion status?
Although the modern notion of a separate sovereignty would see the Crown as potentially divisible in actuality as well as in law, there has not been a division of the sovereignty of the Crown of England since Saxon times, although a separation could arguably have occurred in 1936.17 Implementing suggested changes to the law in the United Kingdom would produce just such a division, were New Zealand- and every one of the other countries which recognise Elizabeth II as Sovereign, not to follow suit.
2. Common law
It is commonly said that the title to the Crown was governed at common law18 by the feudal rules of hereditary descent formerly applicable to land.19 They were however subject to the distinctions that the ancient doctrines relating to the exclusion of the half-blood from the inheritance had no application, and that, in the case of females, the title devolved upon the eldest daughter alone and her issue.20
In the legal history of those Western societies which have passed through the era known as feudalism, succession to property and succession to thrones are intimately connected. The analogy with land descent is, however, not strictly correct, it is submitted, since the only feature which the title to the Crown had in common with this was primogeniture, and this had been the developing rule in the pre-feudal Saxon dynasty.21 And in the sixteenth century it was established that the Salic law,22 which excluded female rulers and long thought fundamental to Western laws of succession, only applied to private law. This caused some dismay in France, though not in England, where the rule had never prevailed.23
The analogy with land presupposed that this developed before the title to the Crown had been settled. In fact the laws developed side by side in the two centuries after the Conquest. As society become more settled in the century after the Conquest, primogeniture came to be the usual form of inheritance. But the Crown did not pass without formal election until Edward II. For practical reasons primogeniture was the most convenient means of conveying the Crown.
By the accession of Richard II, however, influenced by this misleading analogy, the then developed rule of representative primogeniture was applied to the Crown.24 But the true political nature of the Crown, and the continuing right of the magnates to regulate the succession to it, was re-asserted, not twenty years later, by the deposition of the king.
It is submitted that, although the law of succession at common law is based on that applicable to real property, it is distinct from it, and has only adopted those principles of descent appropriate to the Crown.25 The succession law was never consciously adopted; it developed, adopting the developing real property law gradually, but always restrained by the political nature of the office.
The principal authority for the existence of the rules are to be found in the course of descent in the past. It is also seen in the fact that where the rules has been broken, or where any doubt as to the validity of the title has existed, it has usually been found necessary to fortify the title by statute.26
In the absence of statutory limitations, therefore, the Crown would descend lineally to the issue of the reigning Sovereign, males being preferred to females, and subject to the right of primogeniture amongst both males and females of equal degree, whilst children would represent their ancestors per stirpes in infinitum.27 Upon failure of lineal descendants, the Crown would pass under the rule to the nearest collateral relation descended from the blood royal.28
Today, descent is by primogeniture, the heir succeeding immediately.29 The principle of primogeniture has been abolished with respect to real property,30 and remains only in respect of the Crown and dignities.31
III. power to change descent of the Crown
The first formulation of the doctrine of the demise of the Crown dates from some time between 25 and 29 September 1399. This doctrine was held to invalidate the parliamentary writs that had been issued by the authority of the former king. The last Parliament of Edward II had became the first of Edward III, and the a new Parliament was afterwards called on the demise of the Crown without the issue of writs until 1867.32 Thereafter there was to be no interregnum on the death of one king, and the succession of the next.
Succession was now direct and automatic. It followed that there was no room for parliamentary intervention. But the common law right of inheritance was always liable to be defeated by parliamentary grant, or by the election of the Witan or Commune Concilium.33 This parliamentary intervention normally took place when the king's ability to rule (or in some cases his right to rule) was challenged.
The Crown now descends according to the statutory limitations, but retains its hereditary and descendible qualities as at common law, subject to the statutory provisions.34 Title by descent, and title by choice of Parliament expressed two different views of kingship. This came to the fore under James II, and the solution settled the supremacy of the statutory title. The question as to whether the king could vacate the Throne by his misconduct, as James was held to have done, is not one which can be examined here. So far as the succession was concerned the immediate solution was a return to the ancient device of election by the magnates, or as it now was, by Parliament, ex post facto.
From this point forth we have two competing views of the title to the Crown: by inheritance, and by grant of Parliament. A king relying in fact on one would invoke the other to reinforce his title. For several centuries more there remained conflict between title by parliamentary choice, and title by inheritance. The old form of election gave way to parliamentary title, but several kings claimed hereditary title despite statutory bars, James I among them.35
Dunham and Wood have argued that two centuries of depositions led to the formulation of a new theory of parliamentary monarchy, based on the principle that any aberrant settlement of the succession had to be justified by the consent of the estates of the realm. They concluded that by 1485 it had "established and then reiterated principles that were, in the end, to form a constitutional doctrine legitimating a right to depose and a right to rule".36 But the Crown was not yet at the disposal of Parliament.
The Tudor dynasty could appeal neither to the theory of hereditary right which had been the basis of the Yorkist claim nor the statute law on which a Lancastrian claim might have been maintained.37 But Henry VII was at least de facto king.38 There is no assertion of hereditary right in the Act for the Recognition of the title of Henry VII 1485.39 It merely recognises a fact, it does not elect or create the king.40 That the Parliament which passed the statute was summoned by a usurper did not matter since he was de facto king at least. Henry relied on possession.
As the son of Elizabeth of York, Henry VIII had the best hereditary claim of anyone. The new king obtained from Parliament a power to dispose of the Crown by will, and devised it, failing issue of Edward, Mary or Elizabeth, to the grandchildren of his younger sister. The reigns of Henry's three children all rely on statutory right. This is of necessity the case since the statute of 1536,41 making Mary and Elizabeth illegitimate, was not repealed.42 The first Act of Succession of Henry VIII 153443 made the king's marriage to Katherine of Spain void and annulled, and affirmed that to Anne Boleyn.44
An Act fixing the succession 1544 refers to the statute of 1536, and makes Jane's heirs the king's heirs, and enacted:
that the King should and might give, will, limit, assign, appoint or dispose the said imperial Crown and the other premises... by letters patent or last will in writing. 45
This is the title on which Mary and Elizabeth relied. The king bequeathed the Throne to the Suffolk line, descendants of his younger sister Mary, by Will in 1546.
The succession of Mary was unprecedented.46 To a sixteenth century mind this was a guarantee of a disputed succession, a civil war or at least domination by a foreign power by marriage. Henry VIII may indeed have briefly considered in 1525 recognising as his heir his six year old son by Mary Blount. The boy, who died in 1536 at the age of seventeen, was made Duke of Richmond, and Lord High Admiral.47
In 1533 Mary was declared illegitimate by Act of Parliament,48 but was reinstated in 1544, after Prince Edward.49 Philip, son of Charles V claimed the style king in 1553, but this was granted with strict limitations and was to not last beyond the duration of his marriage to Queen Mary.50 In the conditions of the day, it was impossible that a husband, foreign or English, would not attempt to exercise real authority.51
Elizabeth claimed the Crown under the third Act of succession of Henry VIII.52 The question of the succession dominated much of Elizabeth's reign, colouring, if not dictating, her attitude towards marriage, foreign relations and the religious settlement.53
When Elizabeth died, she was succeeded by James I, the descendant of the elder daughter of Henry VII- and not by a representative of the younger daughter as the statute of 1544 required. Until Elizabeth's death it was unclear who should succeed her, and by what right.54
There was, in fact, general agreement only that the rule of primogeniture applied to the Crown.55 The Treasons Act 157156 asserted that Parliament possessed the right to settle the Crown,57 and rendered it treason to deny this right.58 The Act was designed to forestall claims by Mary Queen of Scots to the Crown.59
James also had to step wearily lest he himself contravene the Act of Association 1584.60 This provided that anyone involved in attempts on the Queen's life would be disbarred from succeeding. James relied solely on inheritance,61 as had Lady Jane Gray when she was forced to claim the Crown on the death of Edward VI.62 Edward's attempt to devise the Crown by letters patent had no legal effect; he had purported to exclude all females and Catholics, and devise the Crown to the heirs male of Jane.63
Although James I was not seriously opposed as successor,64 it was necessary to reinforce his title by statute, since it contravened an earlier Act.65 The Act of Recognition of the King's title 1603-466 was an attempt to explain the contravention of the Succession to the Crown Act 1543-4,67 an assertion of the hereditary title as stronger than the statutory one.68
In two of the three Parliaments from 1679-81, bills intended to exclude James Duke of York from the succession were introduced and debated in the House of Commons.69 The bill of May 1679 was worded so as to include Scotland and Ireland, in case their respective Parliaments neglected to enact similar measures. In 1680 a similar measure was introduced, received three readings in the Commons, but was defeated in the House of Lords.70
The Exclusion Crisis lasted from November 1679 till March 1682.71 Ironically, a doctrine condemned as papist in the sixteenth century was now adopted by Protestants.72 It was supposed that a Catholic monarch would not respect the law, and so could not be effectively bound to preserve the Protestant Church of England. Attempts were made to exclude the Duke of York and "all other popish successors", and it was proposed "that no King shall marry a popish Queen".73
Anti-Exclusionists argued for a heritable Crown, but saw in it features of a life tenancy that made it impossible for the king to affect the disposition of the estate after his death.74 The Exclusionists argued that there was no law of succession (or at best there was an hereditary expectation to succeed), and that the king and Parliament were empowered to make one (or that the hereditary expectation to succeed was rebuttable by Parliament for cause). While denying that there was a fundamental law of succession, they maintained that there was a fundamental right of self-defence against a king who was opposed to the liberty of the Protestant Church.75 They would have acknowledged their debt to Hobbes but that he stood for secular absolutism. A elective monarchy would have led to an arbitrary and uncertain succession.76 Sir Algernon Sidney was less concerned in who should succeed as who should decide.77
The Jesuit Robert Parsons stated in 1594 that:
no man is King or Prince by instrument of nature, but every King and kings sonne hath his dignity and preheminence above other men, by authority only of the common wealth.78
What was a heresy in late Tudor times came to be orthodoxy in the next century. In the 1590s Peter Wentworth proposed that Parliament, as the High Court of Parliament, be charged to sort through the potential complex of hereditary claims, to choose whoever had the best right, not to elect the heir.79 The opportunity to formulate a rule for future successions was lost.
The right of Parliament to vary and limit the descent of the Crown, in cases of misgovernment amounting to a breach of the original contract between the Crown and the people, cannot be said to be admitted as a definite constitutional principle.80 But due weight must be attributed to the fact that the tenure of the Crown since 1688 has depended upon the action taken by the Lords and Commons convened in an irregular manner.81
On the flight of James II in 1688, all those who had served as members of the Parliaments of Charles II, together with the Court of Aldermen and members of the Common Council of the City of assembled on 26 December 1688, at the desire of the Prince of Orange. They requested the Prince to take over the civil and military administration and the disposal of the public revenue, and likewise to summon a Convention Parliament.
A Convention Parliament was accordingly summoned by the Prince of Orange by letters directed to the Lords Spiritual and Temporal, being Protestants, and to the coroners, clerks of the peace, and others. This Convention Parliament met on 22 January 1688 (old style). On 28 January the Commons so convened recorded that:
King James II having endeavoured to subvert the constitution of the kingdom by breaking the original contract between the King and people and by the advice of Jesuits and other wicked persons having violated the fundamental laws; and having withdrawn himself out of this kingdom; has abdicated the government; and that the Throne is thereby vacant.82
On 12 February a declaration was drawn up and agreed by the Lords and Commons affirming the rights and liberties of the people, and settling the Crown and regal government of England, France and Ireland upon William and Mary of Orange, during their joint lives and the life of the survivor. The further limitations were: (1) to the heirs of the body of Mary; (2) to the Princess Anne of Denmark and the heirs of her body; (3) to the heirs of the body of William, Prince of Orange.
This declaration was offered on the following day to William and Mary, who accepted its terms, and the declaration was then published to the nation in the form of a proclamation.83 The declaration was subsequently enacted with certain additions in the form of the Bill of Rights 1688 (Eng),84 and the Acts of the Convention Parliament were subsequently ratified and confirmed by the Crown and Parliament Recognition Act 1689 (Eng),85 which also acknowledged the king and queen.
Since William and Mary were monarchs de facto at the time Parliament was summoned, it was validly summoned (whereas the Convention Parliament was not), and the confirmatory Act was legally effective to do what it purported to do, validate the royal title and the Acts of the Convention Parliament.86
The Bill of Rights, being thus confirmed by a Parliament summoned in the constitutional manner, acquired the force of a legal statute, and appears upon the statute books as such.
The present succession is affected largely by the Revolutionary Settlement still.87 As from the dates of the Unions of England with Scotland and Ireland, the succession of the imperial Crown of the United Kingdom of Great Britain, and of Great Britain and Northern Ireland respectively, is to be as it then stood limited and settled under the Act of Settlement.88 This succession is vested in the heirs of the body of the Princess Sophia89 who are Protestants.90
The settling of the succession on the heirs of the Electress Sophia was an extension of this elective approach, but the succession thereafter proceeded by inheritance. The Succession to the Crown Act 170791 itself expressly affirmed the power of Crown and Parliament to limit and bind the succession.
After the triumph of hereditary title over election, the possibility of intervention by the successors of the Witan remained. The modern position is that the statutory provisions settle the Crown in the present line of succession, and provides certain statutory conditions on tenure.92
The descent of the Crown in the present Protestant line is secured by the Act which regulates the succession, the Act of Settlement 1700.93
William Henry Duke of Gloucester, son of Anne, died in 1700 at the age of eleven. The Act of Settlement94 was introduced to meet the situation, although other restrictions were tacked on also.95 Consent was required for the king to engage in war or to leave the country. Privy counsellors were to sign any advice which they gave. No foreigners were allowed to hold office under the Crown, or occupy a seat in Parliament.96 No person holding office of profit or a pension were to be a Member of Parliament. To limit the Crown's freedom to appoint ministers of their choice no pardons were to be available on impeachment.97
Anyone who adheres to the Roman Catholic Church, or who marries such a person, cannot inherit the Crown, nor can they remain Sovereign if they are disqualified after succeeding to the Crown.98 In such a case the people are absolved of their allegiance, and the Crown is to descend to such person or persons, being Protestants, as would have inherited it in case the person so reconciled were dead.99 As a consequence of the wording used in the Act of Settlement 1700,100 there is no requirement that someone whose spouse joins the Roman Catholic Church after marriage looses their right to the Crown.101 It would appear that the operation of the Act is irreversible, although to be effective the marriage must be a legal one.102