The Law of Succession to the Crown in New Zealand (1999) 7 Waikato Law Review 49-72 By Noel Cox



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Since the time of the Act of Settlement there has been but one statutory alteration of the succession law. King George VI was a case of succession upon abdication, although he was the heir apparent103. His Majesty's Declaration of Abdication Act 1936104 was passed in accordance with the procedures of the Statute of Westminster 1931,105 and so was applicable in New Zealand. Since then however, there have been no statutory alterations to the law of succession in either New Zealand or the United Kingdom, nor is the procedure in the Statute of Westminster 1931 and the Statute of Westminster Adoption Act 1947 (NZ) likely to be used again, even solely for the purpose of altering the law of succession.
However, the development of a distinct New Zealand Crown means that the succession law in New Zealand must be seen to be separate from that in the United Kingdom, though they presently have identical provisions. Whether they remain identical is a matter yet to be decided.

IV. CIRCUMSTANCES IN WHICH THE SOVEREIGN OUGHT TO BE CHANGED


At common law the accession of the Sovereign may be automatic, so that there is no interregnum, though the accession does involve a number of legal procedures.106 On the death of the reigning Sovereign the Crown vests immediately in the person who is entitled to succeed, it being a maxim of the common law that the king never dies.107 The new Sovereign is therefore entitled to exercise full prerogative rights without further ceremony.108
The fact of the new Sovereign's accession is published by a proclamation which is issued as soon as conveniently may be after the death of the former Sovereign. It is made in the name of the lords spiritual and temporal, members of the late Sovereign's Privy Council and the principal gentlemen of quality, with the Lord Mayor, aldermen and citizens of London.109
Any alteration in the succession laws has therefore to take place during the reign of a Sovereign whose own title will not be affected. It is clear that, since the advent of separate Crowns, the right to alter and amend the laws of succession of the New Zealand Crown belongs to the Parliament of New Zealand. But, it is also clear that any such alteration would have to take into account the trans-national nature of the Crown.
There are two possible scenarios for such a change. The first is changing attitudes to succession in general, the other is the position of the Prince of Wales. In respect of the first, primogeniture has been abolished with respect to private property.110 The presumption that a son should succeed in preference to daughter is at odds with modern attitudes, and in conflict with the Human Rights Act 1993.111 Were a succession law to be drawn up today, it is likely that it would provide for the succession of the eldest child of the Sovereign, irrespective of sex.112 Although some of the statutes of Henry VIII approached this, there has never been a statement of a generally applicable law of succession, expect in the limitations of the Revolutionary Settlement. Whether the time has come for such a restatement, perhaps accompanied by significant change, is by no means proven.
One possible ground for alteration in the law of succession relates to the Prince of Wales. The present position is that whoever he marries would become Queen when he succeeded to the throne. Were he to marry Camilla Parker-Bowles, there would doubtless be calls for him to renounce his right to succeed in favour of his eldest son. Such a renunciation would not, of course, be effective unless accompanied by legislation in each of the countries acknowledging the Queen as Sovereign.
Changing the succession law in such a way would be likely to follow the example of 1936, with Parliament(s) implementing a decision already taken by the royal family. This is in accordance with the tradition of Parliament reinforcing doubtful claims. Excepting 1688-89, Parliament itself has never taken the initiative. To do so now might be to raise questions about the proper balance of the constitution, questions which Parliament might prefer unasked.113
On 27 February 1998, in London, Lord Wilson of Mostyn, QC, Parliamentary Under Secretary of State for the Home Office, announced that the British Government supported changing the law of succession to the Crown, in favour of the succession of the eldest child irrespective of sex. This came in a debate on a private members' Bill sponsored by Jeffrey Lord Archer, intended to allow provide for the succession of the eldest child of the Sovereign regardless of sex.114
While he acknowledged that any change would have to receive the support of all countries of which The Queen is Sovereign, it is inappropriate that Lord Wilson, who had special responsibility for revision of the British Constitution, should propose such a fundamental change for purely party political reasons. While his colleagues in the Scottish and Welsh Offices were busy dismembering the United Kingdom, in the name of devolution, doubtless he felt that he had to make his own mark on the constitution.
The British Government should not let its own desire for change be the reason for such a fundamental move. The Crown has evolved gradually, and there has been quite enough disruption already in the last decade. Any proposal for change is risky, and there is no evidence of a need or desire for any change in the succession law.
The present rules are a compromise, the result of centuries of evolution. It is half-way between the extremes of the strict rule of primogeniture of the so-called Salic law, and the modernist eldest child rule, as adopted recently in Norway and the Netherlands.
Any move to change the law would be seen as defensive, an attempt to counter criticism. Yet criticism has never focused upon the fundamental nature of the Crown. Any change would be controversial. No good grounds for change have been advanced, aside from claims of sexual inequality.
Any change in the law of succession would have to be enacted in each of Her Majesty's realms, requiring detailed consultation to avoid the possibility of error. Such a proposal should be discussed in private first, not announced by the British Government almost as a fait accompli. The succession law in New Zealand is that of the United Kingdom prior to 1931, subject to potential statutory alteration by the New Zealand Parliament.
In the past Parliament has legislated for the succession for reasons of expediency. With the exception of the settlement and exclusion provisions of the Act of Settlement, the succession remains strictly hereditary. Although the continued exclusion of Catholics, as the basis of the three-hundred-year-old Revolutionary Settlement, may be unjustified in the New Zealand environment, any change in this country would be dependent upon events in the United Kingdom. So long as the king or Queen of the United Kingdom remains Head of the Established Church of England, no change is likely. Were New Zealand to unilaterally amend the Act of Settlement, it is unlikely that any division of the Crown would occur, but it would emphasise the separateness of the Crown.
The problem with altering the Act of Settlement is that the Act was a deliberate and conscious rebalancing of the constitution, one which also brought us the sovereignty of Parliament. Tampering with one aspect might encourage calls for the other to be reconsidered also. Indeed, in light of claims that the Treaty of Waitangi or the 1835 Declaration of Independence guaranteed Maori sovereignty, or rangatiratanga, such calls could not be ignored.


1Though this is more a reflection of the absence of in-depth reporting which does not rely on overseas agencies for news stories.

2Both jurisdictionally and politically.

3Occasional references to the Sovereign and their successors are, at best, indirect references which give no guidance as to the actual law.

4The demise of the Crown meaning the transmission of the Crown from one individual to another, usually, though not implicitly, by death.

5The one paragraph uses the terms "Sovereign", "Throne" and "Crown". Although not synonyms, they are commonly used as equivalents.

6The effect of the Demise of the Crown Act 1908 was similar. It was designed to maintain imperial consistency. It excluded the operation of the rule in relation to property held by the Sovereign in a private capacity. Its provisions however were unnecessarily elaborate for a general principle. But the Constitution Act 1986 goes further. If death has no effect in law then the Sovereign in a private as well as a public capacity is immortal in New Zealand.

712 & 13 Will III c 2.

8s 5 (1) of the Constitution Act 1986.

9The laws of succession are unlikely to be based on the royal prerogative, or convention, since they are clearly more than mere rules of conduct, however binding, and most probably justiciable. They are also not merely ancillary or residual rights. The royal prerogative is of course a branch of the common law, because it is the decisions of the courts which determine its existence and extent (case of proclamations (1611) 12 Co Rep 74; 77 ER 1352 (KB)).

10Although there has been no litigation on this question, it is submitted that there are no circumstances which might create a divergence in the common law of succession. This is particularly so given the importance of the succession.

11Pre-1840 regencies were generally governed by ad hoc arrangements, although for much of the early eighteen century Lords Justices were required from time to time due to the Sovereign's absence in Hanover.

121 Edw VIII & 1 Geo VI c 16, and 6 & 7 Geo VI c 42.

13Or in the absence of clear words or necessary implication (Copyright Owners Reproduction Society v EMI (Australia) Pty Ltd (1958) 100 CLR 597). A better view is that the Statute of 1931 (22 & 23 Geo V c 4) imposes only a procedural bar, at least so far as the law of England is concerned.

14Justice, Department of, Constitutional Reform- Reports of an Officials Committee (1986) 28.

15Constitution Act 1986, s 4 (1).

16The consequences of the Act extend beyond the Crown. The prohibition on those "born out of the kingdoms of England Scotland or Ireland or the dominions thereunto belonging shall be capable to be of the privy council or a member of either House of Parliament or to enjoy any office or place of trust either civil or military" was the subject of some consideration in the Report of the Justice and Law Reform Committee on the Imperial Laws Application Bill (1988) Explanatory Material, 58. The authors of the Report believed that membership of the Privy Council was best left uncertain, and that the other matters were not relevant. Yet the practice has been for subjects of Her Majesty overseas to be appointed to British offices as if this were proper. The only solution is that the expression "the dominions thereto belonging" must be interpreted in light of the Statute of Westminster 1931 (22 & 23 Geo V c 4) and be assumed to have been impliedly amended accordingly.

17Due to the effect of His Majesty King Edward VIII's Declaration of Abdication Act 1937 (SA).

18Lawson, FH & Davies, HJ, Halsbury's Laws of England (4th ed, 1974) vol 8 para 845.

19This is the substance of the rule as deduced by Sir William Blackstone (see Commentaries on the Laws of England (ed E Christian, 1978) 192, 193). The principal authority for the existence of the rule is to be found in the course of descent in the past, and in the fact that where the rule 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. See 7 Hen IV c 2 (Succession to the Crown) (1405-6); 1 Mar sess 2 c 1 (Legitimacy of the Queen) (1553); 1 Eliz I c 3 (Recognition of the Queen's Title to the Crown) (1558-9); 1 Jac I c 1 (Recognition of the King's Title to the Crown) (1603-4) (all repealed); and the Succession to the Crown Act 1707 (6 Ann c 41).

20Unlike real property inheritance, for example, it is generally accepted that in the case of female heiresses, the title devolved upon the elder daughter of the king alone, and her issue, and was not subject to coparcenary. This is stated by Blackstone to be of necessity (he gave no other authority). In the case of land, the title devolved upon all the daughters equally as coparceners (Coke, Sir Edward, Coke upon Littleton ("First Institutes") (1979) 135a; Blackstone, supra note 20, at 194. See O'Farran, "The Law of the Accession" (1953) 16 Mod LR 140. Queen Elizabeth II succeeded in accordance with Blackstone's rule. Henry VIII provided for the succession of his daughters by statute, but it was therein said that the Crown should pass to females "according to their ages, as the Crown of England has been accustomed, and ought to go in cases where there be heirs female to the same" (25 Hen VIII c 22).

21See Truax, Jean Ann, "The making of the King 1135: Gender, family and custom in the Anglo-Norman succession crisis" (1995) unpublished University of Houston PhD thesis; Le Patourel, "The Norman Succession 996-1135" (1971) 86 English Historical Review 225-250; Leyser, "The Anglo-Saxon Succession 1120-1125" (1990) 13 Proceedings of the Battle Conference on Anglo-Norman Studies 225-241.

22Salic or Salique Law, an ancient law of Pharamond, King of the Franks.

23In the East, there was an elaborate succession law, but little or nothing on the Crown. This was most irreconcilable, or perhaps most explicable, in Muslim countries, because of the minute fractional division of estates. Natural selection, the triumph of the strong over the weak, prevailed as a means of settling the succession within the ruling family (Maine, Sir Henry Sumner, Early Law and Custom (1890) 125-144).

24Taswell-Langmead, Thomas, English Constitutional History (9 ed AL Poole, 1929) 169.

25Henry Constable stated, incorrectly, that the succession was by the "ordinary course of inheritance in fee simple by lineal descent in blood" (Discovery of A Counterfecte Conference (1600) 44). Logically, the Crown was an estate in fee, because at common law only an estate in fee was heritable. But inherited land was freely alienable; the Crown never was, though the attempt by Edward VI to devise the Crown may be taken to have implied this.

26Halsbury's Laws of England, supra note 19, vol 1.

27Blackstone, supra note 20, at 194.

28There can be no doubt that the ancient doctrine with regard to land, relating to the exclusion of the half-blood from the inheritance, never had any application to the descent of the Crown, and that collaterals were always admitted provided they could trace their descent from the first monarch purchaser (Blackstone, supra note 20, at 202; Willion v Berkeley (1561) 1 Plowd 223, 245; 75 ER 339). It is said also that the maxim possessio fratris haeredem facit sorerem (possession of an estate by a brother such as would entitle his sister [of the whole blood] to succeed him as heir [to the exclusion of a half-brother]) does not apply to the descent of the Crown, and that, therefore, in the absence of lineal issue, the brother of the half-blood may succeed to the sister of the whole blood (see Coke, supra note 21, at 15b).

29As is reflected in the wording of the Accession Council, that lineal descendant of the Anglo-Saxon Witan (see the Appendix, Accession Proclamation 1952).

30Administration of Estates Act 1925 (15 & 16 Geo V c 25) (UK); Administration Amendment Act 1944 (NZ).

31A peerage is an incorporeal and impartible hereditament, inalienable and descendable according to the words of limitation in the grant, if any (Nevil's Case (1604) 7 Co Rep 33a; 77 ER 460; R v Purbeck (Viscount) (1678) Show Parl Cas 1, 5; 1 ER 1; Norfolk Earldom Case [1907] AC 10; Rhondda's (Viscountess) Claim [1922] 2 AC 339). If the peerage is a barony by writ, there will, of course, be no words of limitation. In English law, letters patent purporting to create a peerage without including words of limitation will be held to be bad. A peerage is descendable as an estate in fee tail (Ferrers' (Earl) Case (1760) 2 Eden 373; 28 ER 942).

32Lapsley, "The Parliamentary Title of Henry IV" in Barraclough, Geoffrey & Cam, Helen (eds) Crown Community and Parliament in the Later Middle Ages (1951) 273-336, reprinted from (1934) 94 English Historical Review 423-49, 336.

33Halsbury's Laws of England, supra note 19, vol 8 para 846.

34These are contained in the Act of Settlement 1700 (12 & 13 Will III c 2) (Eng), and His Majesty's Declaration of Abdication Act 1936 (1 Edw VIII & 1 Geo VI c 3 (UK); now repealed in New Zealand by the Imperial Laws Application Act 1988. The Legitimacy Act 1959 (7 & 8 Eliz II c 73) (UK) does not affect the succession to the Throne (s 6 (4)). While the Status of Children Act 1969 does not expressly exclude the Crown, since it is not expressed as binding the Crown, this interpretation may freely be arrived at.

35Indeed, the succession of James in such circumstances appeared to suggest that hereditary right was indeed indefeasible. He was also an alien, and thereby debarred by common law from possessing land in the kingdom (Nenner, Howard, The Right to be King- The Succession to the Crown of England, 1603-1714 (1995) 3).

36Dunham and Wood, "Right to Rule in England: Deposition and the Kingdom's Authority, 1327-1485" (1976) 81 American Historical Review 738-61.

37It was not clear by what right Henry VII was king, but their could be no denying that he was king. Heredity, election, nomination, conquest and prescription could each have been pleaded, but reliance on too many grounds showed the weakness of the title.

38Under an Act to regulate the Succession 1405-6 (7 Hen IV c 2) (Eng), Henry VII's line were legitimate, but excluded from the succession. However, it is unclear whether this conditional legitimation was effective. Though there are a number of instances which suggest that illegitimacy was not a bar to succession to the Saxon Throne, since the Conquest all monarchs had been legitimate. Henry VII did not claim the Throne by inheritance, neither did Elizabeth (though hers was a legitimate birth subsequently invalidated).

39Act for the Recognition of the title of Henry VII 1485 (1 Hen VII c 1) (Eng), printed at the beginning of the Statutes of Henry VII in Statutes of the Realm (1816) II, 499. [extract only]: "for comfort of realm, and to avoid all ambiguities and questions... ordained, established and enacted that by the authority of this present parliament, that the inheritances of England and France, with all the permanence and royal dignity to the same pertaining... rest, remain and abide in the most royal person of our now sovereign lord King Henry VII and in the heirs of his body lawfully coming, perpetually with the grace of God so to endure in none other." This does not rely on hereditary title- it recognises a political fact or fait accompli.

40Keir, Sir David Lindsay, The Constitutional History of Modern Britain since 1485 (8h ed 1966) 8.

4128 Hen VIII c 7 (Eng).

42Mary was legitimated by statute (1 Mar St 2 c 1) (Eng), and also relied on a statute to confirm her title to the Throne (1 Mar St 3 c 1) (Eng). Elizabeth remained illegitimate in canon law, and therefore in the eyes of her Catholic subjects, as well as under 28 Hen VIII c 7 (Eng) (although her title to the Throne was also confirmed, by 1 Eliz c 3 (Eng)). Henry may have wanted to protect the rights to succession of any future female children born after Mary and Elizabeth. He did however allow them the right to succeed under the statutory entail of 35 Hen VIII c 1 (Eng).

4325 Hen VIII c 22 (Eng).

44The First Act of Succession of Henry VIII 1534 (25 Hen VIII c 22) (Eng) [extracts only]: VI.. issue of Anne shall be your lawful children, and be inheritable, and inherit, according to the course of inheritance and laws of this realm, the imperial Crown of the same, with all dignities, honours, pre-eminences, prerogatives, authorities, and jurisdictions to the same annexed or belonging, in as large and ample manner as your highness at this present time has the same as King of this realm; the inheritance thereof to be and remain to your said children and right heirs in manner and form as hereafter shall be declared, that is to say... heirs of Anne's son, then subsequent wives' sons... then the issue female by Anne... then to the second issue female (and so on)... according to their ages, as the Crown of England has been accustomed, and ought to go, in cases where there be heirs female to the same; and for default of such issue, then the said imperial Crown, and all the other premises, shall be in the right heirs of your highness for ever."

4535 Hen VIII c 1 (Succession to the Crown Act 1543-4) (Eng).

46The disastrous reign of Matilda, the only earlier instance of a female Sovereign, tended to reinforce the idea that while a man could inherit the Throne through a woman, a woman was not fit to reign herself. Whilst men looked back at the reign of Elizabeth with some satisfaction, they were by no means conducive to the idea of a female Sovereign as a regular occurrence. Because of Eve's perfidy in seducing Adam with the forbidden fruit, women were forever to be subject to the dominion of men (Knox, John, First Blast of the Trumpet in Laing, David (ed), The Works of John Knox (Edinburgh, 1846-64) vol IV, 377-8.

47Patent Roll, 17 Hen VIII pt 1 m 42.

48Succession to the Crown Act 1533 (2 Hen VIII c 22) (Eng), repealed by the Succession to the Crown: Marriage Act 1536 (28 Hen VIII c 7) (Eng) s 1 and the Legitimacy of the Queen Act 1553 (1 Mar sess 2 c 1) (Eng) s 2 [repealed by Statute Law Reform Act 1948].

49Succession to the Crown Act 1543 (35 Hen VIII c 1) (Eng).

50The Queen Regents Prerogative Act 1554 (1 Mar sess 3 c 1) (Eng), repealed by the Statute Law (Repeals) Act 1969, and Queen Mary's Marriage Act 1554 (1 Mar sess 3 c 2) (Eng), repealed by the Statute Law Reform Act 1863.

51Cannon, John, & Griffiths, Ralph,
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