Memorandum by Daniel A. Binchy on the law relating to the Sovereign and the Royal Family

General

It seems to me that legislation in regard to this topic is in a class apart from legislation to all other topics enumerated in the Preparatory Memorandum.¹ In the first place, this State is not primarily interested in the personality or family of the wearer of the Crown, but rather in his relation to the Executive and Legislature of this State. If these can be placed on a satisfactory footing, if the King's prerogatives, one and all, can be exercised by the Executive and regulated by the Legislature, then our position with regard to the Sovereign is quite satisfactory. Secondly, it must be remembered that Great Britain can justly plead a special interest in the person and family of the Sovereign. It foots the bill for them - a somewhat expensive one; they are almost invariably resident in Great Britain; the Monarch's public and private estates are, with a couple of exceptions, situated there, and in any event are never likely to be situated here. In general, then, the Free State can afford to disinterest itself in Sections E, F and H of Chapter I. The remaining sections contain a certain amount of material, which, however, will need careful handling, and perhaps, should not be unduly pressed in every case, as sometimes the theoretical point to be established may not be worth wounding British susceptibilities for.

I deal with them under the headings of (1) Succession to the Crown, (2) the Religion of the King, (3) Royal Titles, (4) Regency, (5) Treason.²

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(1) Succession to the Crown

This, as is well known, is regulated by the Act of Settlement (1700). In order to advertise the 'several Kingship', it might be thought advisable that each Dominion Parliament should specifically enact Section I of the Act of Settlement, thereby giving the authority of the Crown a separate statutory basis in each State of the Commonwealth. But this presents certain difficulties. The position of the Crown in the Commonwealth is precisely that which differentiates it from all State groupings hitherto known to International Law. In a so-called 'personal union', (which up to this has only been known to exist between two states), the sovereignty of the individual or the line could, but did not by any means invariably, repose on legislation by both parties. In any event, the Union could be terminated by either Member changing the succession, or, as happened in the case of England and Hanover, by the succession laws being different in both countries. But in the British Commonwealth the sole link between the various Members is that the King of Great Britain for the time being is the King of each Dominion, and that his successors in that sovereignty will be the future sovereigns of the Dominions.To admit that any Dominion could independently depose the Monarch or change the succession (which would be implied in the separate lex imperii of each Dominion) would mean the practical dissolution of the Commonwealth, and accordingly we may expect that the British will be particularly sensitive on this point. It might be possible to secure agreement to individual statutes as the source of monarchial power in each Dominion, with a proviso that such a statute could only be repealed or amended after agreement with the other Members, but this has obvious disadvantages. In the second place, unless the religious qualification ('being Protestants') in Section I could be omitted - a question which I shall discuss presently - the enactment of such a statute by the Oireachtas might stir up a politico-religious controversy, the very worst kind of all.

The question of a change in the line of succession has a decided air of unreality. If the House of Windsor is ever deposed, whether by statute or by Revolution in England, it will mean not the substitution of a new line, but the establishment of a Republic and the consequent dissolution of the Commonwealth. In practice, then, it matters nothing to the Free State whether or not she shares with Great Britain the right of changing the dynasty. From the point of view of status, however, it might be thought well to secure an agreement (which could be implemented by Statute) that the succession to the Crown can only be changed by express legislation by all States of the Commonwealth. But here too, a difficulty presents itself. The movement to change the dynasty (in other words, to establish a Republic) will only come, if it ever comes at all by Constitutional means, from a radical British Government, whose hands might be tied, under this agreement, by the monarchism of a more remote and therefore more 'loyal' State, such as New Zealand.

Further we must remember that the Act of Settlement, while incidentally settling the Succession to the Crown, contains some of the most treasured possessions of the written part of the British Constitution. Britishers will, no doubt, feel about this law, like Montesquieu, that 'it should only be touched with a fearful and trembling hand'. And this has considerable relevance to the question which I have now to discuss.

(2) The Religion of the King

Section 1 of the Act of Settlement vests the Crown in the Princess Sophia and the heirs of her body, 'being Protestants'. Section 2 elaborates this qualification. It declares that any person entitled to the Crown, who is or becomes a Papist, is subject to the incapacity established by the Bill of Rights (1689) Section 9. This section provides that in the above-mentioned eventuality, the Crown shall vest in the person, who, being Protestant, would have inherited it if the Catholic inheritor were naturally dead.

Up to quite recently, the 'Protestant Succession' was regarded as one of the bases of the British Constitution. But the great increase of the Catholic population in England, and still more throughout the British Commonwealth, coupled with the new position of the Crown in relation to the Dominions, have evoked protests against this view from certain quarters, especially during the recent Emancipation celebrations. These protests have even had their reaction on Ireland. In an article in the 'Irish Ecclesiastical Record', August 1929, entitled 'a constitutional anomaly', the Rev. R.S. Devane, S.J., makes a strong plea for the removal of this limitation on the religious liberty of the Sovereign. He points out first of all that in the Dominions the Catholic Church is numerically stronger than the Church of England and the Presbyterians combined (the figures being, Catholics 7,629,164; Church of England and Presbyterians, 7,365,045), and that the Catholic Church is the strongest Religious body in Canada, the Irish Free State and Newfoundland, and comes a close second in Australia. Turning to the Free State in particular, he refers to Art. 8 of the Constitution, which says inter alia, 'no law may be made either directly or indirectly, to endow any religion, or prohibit or restrict the free exercise thereof, or give any preference or impose any disability on account of religious belief'. And he continues: 'Is not the whole spirit, if not the very letter, of this Article 8 outraged by the fact that the Monarch is denied what is allowed to his meanest subject, so that by joining the religion of the majority of his Free State subjects, he thereby ceases to be King'. He then quotes at length from the Minister's speech in the Dáil on June 9th, dealing with the forthcoming Experts' Conference. From some of its phrases, he concludes (by some process of reasoning which is anything but clear to me) that the Government will go 'all out' for the removal of this Constitutional anomaly!

The same theme was taken up and given considerable prominence in the September issue of that not over-reputable but widely read journal 'The Catholic Pictorial'. Repeating Fr. Devane's arguments, it declares it to be a permanent obstacle to the theory of co-equality that 'the first Citizen of the Irish Free State' should be debarred from following his conscience on matters of religion.

In England, of course, the demand was more generally formulated. It was even officially put forward by Cardinal Bourne in a speech at Cambridge on May 6th of last year, the following portion of which is of much more than merely religious interest:

It will have to be considered how far this matter calls for, or would repay, action. At first sight, the issue appears slightly unreal. Assuming even that the statutory restriction can be repealed, there is no likelihood of any Sovereign availing himself of the liberty to become a Catholic. The 'victory', should it be won, will remain an entirely theoretical one. But the purely political advantages which might accrue from successful action in this matter must be considered. Personally I do not think they would be very considerable in Ireland. No doubt, it might temporarily stimulate popular interest in the relations of the King to his various governments; it would further secure warm commendation from religious circles, which might have some effect on religiously-minded people. But unless and until the theoretical liberty was exercised in practice, it would hardly have any lasting effect on popular opinion here. There is, however, the more important possibility of the Free State coming forward as the leader and spokesman of the very large Catholic population of the Commonwealth.

It remains to consider the difficulties in the way of removing this restriction, which incidentally have hardly been considered at all by the champions of reform. The most important is, of course, the Establishment in England. It is true that the days of established Churches seem to be numbered. They have disappeared in Ireland and Wales, but in England itself the Anglican Church is likely to remain established for a considerable period yet. Would it be possible to have a Catholic Sovereign in England while the Establishment lasts? Surprising though it may seem, there does not seem to be any fundamental obstacle. While the King is considered the Head of the Anglican Church, his authority is held to derive from the Act of Supremacy which merely asserts the Sovereignty of the Crown over all persons and causes, ecclesiastical and temporal, to the exclusion of any foreign power. Technically this gives the Crown control over all Churches within his realms, Catholic as well as Protestant, and it is interesting to note that at the end of the eighteenth century, when certain rights and privileges were granted to the Catholic Church in Canada, the contention was advanced (but never carried into practice) that the King in virtue of the Act of Supremacy, could nominate the Bishops of that Church in Canada.

The special relations between the Crown and the Established Church in England are of such a nature that no act concerning the latter is done by the King on his personal initiative alone. Convocation meets by Royal licence, countersigned by the Prime Minister. Every canon of Convocation must be confirmed by the Crown before becoming operative, and if the canon affects the laity, it requires an Act of Parliament. The appeal from the Church courts to the King in Council (i.e. the Judicial Committee) has, of course, nothing to say to the King at all. Even the Crown's extensive right of patronage - extending to all Archbishoprics, bishoprics and deaneries - must be exercised on the advice of the Prime Minister, which, in effect, deprives the King of all personal initiative in the matter. Strangely enough, then, the emergence of a Catholic Prime Minister (against whom there is no statutory restriction) would entail infinitely greater danger to the Establishment than the existence of a Catholic Monarch.

It should further be remembered that in no other State of the Commonwealth has the Crown anything to say to the Anglican Churches (none of which are established, but all of which are in communion with the Church of England). In Scotland, by the Act of Union, the Presbyterian Church is the established Church, and its only relation to the Crown is that the King, again acting on the advice of the Prime Minister, nominates a High Commissioner, who formally summons the General Assembly on a day fixed by the Moderator. This, of course, is a pure formality. In no other State of the Commonwealth is there an Establishment, except possibly Malta, where the Catholic Church occupies a privileged position.

In principle, therefore, the King might well be a Catholic, without interfering with the Established Church. It is important to stress this point, as the British will undoubtedly argue that this question is so closely bound up with the question of Disestablishment that nothing can be done about it unless and until the Church is disestablished.

But there is another difficulty, much more serious, because more intangible. There is no use blinding the fact that most Englishmen, no matter how tolerant they may be to individuals, have a downright fear of 'Popery', which they interpret nowadays as control by Italians, and would see in any proposal to repeal Section 2 of the Act of Settlement, an attempt to make the Crown subject to the Curia, and England subject to 'foreign interference'. However ridiculous the idea may be, it dies very hard. Even the Regency Act of 1910, to which I refer under the heading of 'Regency', provided that if the Queen should become or marry a Catholic, her powers as Regent should ipso facto cease. Despite Cardinal Bourne's hopes, a good deal of this sentiment has been imbibed by what may be called the Governing classes in Australia and New Zealand, while South Africa is predominantly low Church Protestant. If the Free State raises this question, it is very possible that the British Government may demur, through fear of helping the Conservatives to raise a politico-religious 'scare', and that the other Dominions will be half-hearted in their support, if not hostile. At all events, it would seem desirable to sound the other Dominion representatives - particularly Canada - before definitely deciding to force this issue.

If this matter is raised, the Coronation Oath must also come up. The older form was very insulting to Catholics, containing a repudiation of the doctrine of the Real Presence 'and other Romish superstitions'. But the form substituted by the Accession Declaration Act 1910, passed on the accession of the present King, is really quite inoffensive. It runs as follows:

Apart from the general question of the King's religion, there is no need to urge any modification of this. If, on the other hand, agreement can be secured for the repeal of Sec. 2 (and part of Sec. 1) of the Act of Settlement, a new Declaration might be agreed on, and given statutory authority in each State or part of the Act regulating the authority of and succession to the Crown.

3. Royal Titles

An Act of Parliament is required, according to British practice, to enable the King to modify or alter the Royal titles. Thus, after the recommendation of the Inter-Imperial Relations Committee in 1926, the British Parliament passed the Royal and Parliamentary Titles Act, 1927 (17 and 18 Geo.V., c. 4), authorising the issue of a proclamation by His Majesty within six months from the passing of the Act making such change in his title as he himself should think fit. This was followed by a Proclamation issued on May 13th 1927, changing the title in accordance with the Imperial Conference Recommendations.

It will be noted that this alteration in His Majesty's title, for which the Free State was exclusively responsible, was made on the authority of a British statute. It would, in my opinion, have been better if we too had passed a Royal Titles Act, authorising the King to make the change. Even yet, it might be possible to give the Royal Titles a statutory basis in this country by including a section in the proposed Act defining the present Titles and providing that future changes in them will require sanction by the Oireachtas in the shape of an enabling Act.

4. Regency

This is undoubtedly the most important section of this chapter, for it touches questions which even in the recent past have had a very practical interest, and may crop up again at any time. Regency may arise from two causes (a) the minority of the Sovereign succeeding on the death of his predecessor (b) the temporary incapacity of the reigning sovereign whether through illness or prolonged absence. In the former case, Parliament makes provision for the Regency, usually well in advance, as for example the Regency Act of 1910, on the accession of the present King, which lapsed automatically on the attainment of the Prince of Wales of the age of eighteen. Similarly the Lords Justices Act of 1837, which I cannot agree with the Preparatory Memorandum is still in force; it envisaged merely the establishment of a Regency on the death of Queen Victoria during the absence of the next successor entitled to the Crown.

It is important that we should have separate legislation on this topic. Two alternatives are possible. Either we could take each case as it comes, and legislate separately (after consultation with the other Member-States) for each Regency. Or we could have a general Regency Act (which would presumably be an agreed measure of concurrent legislation) pursuant to which an Order by the Executive Council could be made in the particular case.

More delicate is the question of Regency during the lifetime of an adult Sovereign, whether arising from illness or absence. This is a matter where the prerogative is left intact and has not been regulated by statute. (In the case of mental trouble which renders the Sovereign non compos mentis, as happened to George III, Parliament will, of course, establish the Regency).

Last year, during the King's illness, the question arose in an acute form for this State. On the 4th of December 1928 a meeting of the Privy Council was held in the ante-room of the King's sick-room, and the King in Council authorised the issue of letters patent committing the Royal functions (with one or two exceptions which are not relevant) to six Counsellors of State: the Queen, the Prince of Wales, the Duke of York, the Prime Minister, the Lord Chancellor, and the Archbishop of Canterbury. The letters patent, issued on the same day, provided that any three of the Counsellors were competent to transact the business, but no distinction whatever was made in the Letters Patent between those Counsellors who were members of the King's family and those who owed their appointment to their positions in the British Government. All of them were equally empowered 'to approve and sign on Our behalf any document requiring Our signature', apparently whether it was a Dominion or a British Document.

No attempt was made even to consult the Dominions beforehand and the first intimation which the Irish Government received of this step was a telegram from the Prime Minister to the President announcing the appointment of the Counsellors of State by His majesty. Almost immediately an urgent document requiring the King's signature came up: the instrument of ratification of the Kellogg Pact on behalf of the Free State. The British Government apparently realised the possibility of the Dominions objecting to the personnel and mode of appointment of the Counsellors and they cleverly provided a loophole for escape from these criticisms. In a semi-official letter on January 25th 1929, Mr. Dixon of the Dominions Office stated: 'in the case of documents relating to the Dominions, it has been arranged that signature is effected, or approval given on His Majesty's behalf by H.M. the Queen, H.R.H. the Prince of Wales, and H.R.H. the Duke of York'. But this solution represented a purely informal arrangement: in law, the other three Counsellors were equally entitled, under the working of the Letters Patent, to act for the Dominions.

On Feb. 1st the Department in an official despatch³ dealing with the ratification of the Kellogg Pact, attacked the whole principle underlying the creation of the Counsellors of State. 'The Counsellors of State were not presumably intended to function in matters concerning the Governments of the British Commonwealth other than Great Britain. They were appointed by His Majesty, on the advice of the Privy Council of Great Britain through an Executive Act of the British Government. If it had been intended to appoint Counsellors who should act on His Majesty's behalf in respect of His Majesty's other Governments, the latter would have been consulted and His Majesty would, no doubt, have been advised to appoint as Counsellors Members of the Royal Family exclusively. Such an appointment on the common advice of all his Governments would have been in strict accordance with the spirit of the Imperial Conference Report of 1926.' The despatch concluded with an intimation of the Government's intention to advise His Majesty to sign or at least initial documents presented to him by them, or in case this should unduly fatigue him, to appoint the Queen, the Prince of Wales and the Duke of York as his representatives to sign such documents on his behalf.

On February 6th a very interesting Memorandum was forwarded from the Dominions Office in reply to this despatch. Having pointed out that the Counsellors like the King himself, could only act upon the advice given to them by the Minister of His Majesty's Government concerned and that no other Government had raised any question on the matter, it proceeds: 'It has been suggested that misapprehension might arise if documents concerning any Dominion received the signature of persons holding office in His Majesty's Government in the United Kingdom or other officers of State in England inasmuch as it might be suggested that in affixing their signature these Ministers or officers were acting in an executive capacity in the affairs of that Dominion. It appears unnecessary to discuss this question here, because, as the Free State Government are aware, it has been arranged that, in order to avoid even the appearance of such an infringement of the constitutional doctrine, documents relating to any Dominion shall, during His Majesty's illness, be signed by Her Majesty, the Queen, the Prince of Wales, and the Duke of York, and not by any one of the other three Counsellors of State.'

But the most important part of the memorandum is its opening paragraph:

On the 14th of February an official despatch from this Department⁴ accepted, in view of the King's condition, the arrangement as to the signature of Dominion documents by the three Royal Counsellors, but strongly criticised the mode of appointment of the Counsellors and expressed the hope that the British Government would, of its own volition, take steps to have the question placed on the Agenda of the next Imperial Conference.

Finally on June 7th, immediately after the change of Government in Great Britain, the King's health having meanwhile considerably improved, a meeting of the Privy Council was held and authorised the issue of fresh Letters Patent revoking the former Letters Patent and re-appointing the Counsellors of State (mutatis mutandis in the persons of the Prime Minister and Lord Chancellor) but only empowering the latter to do certain specified Acts which are set out in a schedule to the Letters Patent. This schedule does not include any Act relating to the Dominions, and the Prime Minister in his wire to the President announcing the event adverts to this fact. In the reply sent by this Department on June 8th⁵ it is regretted that sufficient time was not afforded for the consideration of the draft order.

The moral of this story is obvious. The original appointment of the Counsellors without prior consultation with the other Governments of the Commonwealth was certainly a breach of the spirit of the 1926 report. But even if they had been consulted, and even if it had been agreed to appoint only members of the Royal Family as Counsellors, the fact would remain that the authority of these Counsellors to exercise the Royal functions in the Free State would have rested on a British Order in Council. As long as this state of affairs is legally possible, it is a very heavy argument against the theory of the 'several kingship'. As the British memorandum rightly points out, the appointment was made 'in accordance with the only constitutional forms available for the purpose'. This simply means that the Royal Prerogative to appoint a Council of Regency under these circumstances remains uncontrolled by Statute. The remedy is a very obvious one: this Prerogative must be given a statutory basis in each State of the Commonwealth.

It would be desirable - if not absolutely necessary - that the Oireachtas should pass general legislation defining the Regency in the case of the illness of the Monarch (possibly as part of the proposed general Act defining the sovereignty of and succession to the Crown). This legislation (which would no doubt be concurrent) could vest the Regency, under the circumstances indicated, in, say, the three nearest blood relatives of the Sovereign (with a special proviso excluding anyone holding any office of Profit under the Crown or in any of His Majesty's Governments). It could also provide for the issue of an Order to the Executive Council in every given case, as soon as the Sovereign shall have declared himself incapacitated by illness, containing the names of those persons who form the Council of Regency under the terms of the Act.

The case of prolonged absence of the Sovereign from England with which we may be faced in the near future is in another category. It would undoubtedly be better to allow the King to create Counsellors of State for purely British purposes, and to ignore these, insisting that all Free State documents be signed by the King in person. This would help to establish the idea of the 'several kingship' in the minds of foreigners.

I have dealt at considerable length with this question of Regency, because I believe it offers a favourable opportunity of emphasising the separate juristic personality of the King in each of the Member-States, which I regard as the sheet-anchor of our international sovereignty.