Abstract
The coronation of English and later British Kings and Queens represents an ancient survival. Although changed greatly over time, the essence can be traced to the earliest centuries of pre-Conquest England. Contemporary pressures, including increased secularism and the changed role of the constituent countries of the United Kingdom, have raised questions about the form and content of a future coronation in London. One of these is the role of the peerage, traditionally accorded a significant place in any coronation. This article will consider the question of the right of peers—hereditary or life—to attend a coronation. It does so by looking at whether a coronation is a legal or constitutional necessity, who can or should attend a coronation, and also looks briefly at some of the other activities associated with the accession of a new Sovereign, that traditionally involved members of the peerage.
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Notes
Parliamentary Privilege, First Report, 31 March (1999), para 330.
Ibid.
See also Cox (1997).
As noted above, the National Secular Society’s proposed legal action, being one example. National Secular Society “Change is overdue to our sectarian coronation—even the heir to the throne seems to think so” http://www.secularism.org.uk/blog/2013/11/change-is-overdue-to-our-sectarian-coronation--even-the-heir-to-the-throne-seems-to-think-so accessed 16th May 2014.
Lawson and Davies (1974, vol 8 para 845).
This is the substance of the rule as deduced by Sir William Blackstone (see Blackstone (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of the Queen’s Title to the Crown) (1558–9); 1 Jac I c 1 (Recognition of the King’s Title to the Crown) (1603–4) (all repealed); and the Succession to the Crown Act 1707 (6 Ann c 41).
Salic or Salique Law, an ancient law of Pharamond, King of the Franks.
In 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 1890, 125–144).
Taswell-Langmead (1929, 169).
Constable stated, incorrectly, that the succession was by the “ordinary course of inheritance in fee simple by lineal descent in blood” (Constable 1660, 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.
Lapsley (1951, 273–336).
Halsbury’s Laws of England, vol 8 para 846.
These are contained in the Act of Settlement 1700 (12 and 13 Will III c 2) (Eng), and His Majesty’s Declaration of Abdication Act 1936 (1 Edw VIII and 1 Geo VI c 3 (UK). The Legitimacy Act 1959 (7 and 8 Eliz II c 73) (UK) does not affect the succession to the Throne [s 6 (4)].
Indeed, 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 1995, 3).
Dunham and Wood (1976).
It was not clear by what right Henry VII was king, but there 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.
Under 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).
Act 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.
Keir (1966, 8).
Specifically, he argued that the presumption of the hereditary right of the next in blood could be rebutted in some circumstances. Title is determined by Parliament. Parliament is, in the first instance, guided by common law rules of hereditary succession, as modified by historical experience. Upon consideration of the personal qualities and circumstances of those in the line of succession, it may qualify the succession further. According to his reading of the precedents, there was in fact a form of election each time a Sovereign succeeded. This, in fact, amounted to an interregnum (Doleman 1594, 142, 198–9).
Wentworth (1598, 5, 48, 51).
The title to the Crown was originally elective, and the notion of the hereditary right grew gradually. What survives of the elective principle is still to be seen in the terms of the coronation ceremony. The true nature of the title of William and Mary was elective, but this was cloaked in the legitimacy of heredity. James II was deemed to have abdicated by having withdrawn himself from the country (Anon 1689, 7).
Maitland (1931, 283–5).
Halsbury’s Laws of England, at para 847.
Union with Scotland Act 1706 (6 Anne c 11) (Eng), art II; Union with Ireland Act 1800 (39 and 40 Geo III c 67) (Eng) art 2; Ireland Act 1949 (12 and 13 Geo VI c 41) (UK) s 1 (1). In Scotland a convention offered the Throne jointly to William and Mary, though conditional upon the abolition of episcopacy and the institution of a Presbyterian church order.
The Princess Sophia having predeceased Anne, the Crown descended, under this provision, to George I, son of Sophia. It then descended lineally to George IV, from George IV to his brother William IV, from whom it descended to Queen Victoria, niece of William IV, then lineally to Edward VIII, who on 10 December 1936, executed an Instrument of Abdication, and, on 11 December 1936, gave his assent to His Majesty’s Declaration of Abdication Act 1936 (1 Edw VIII and 1 Geo VI c 3) (UK). Thereupon His Majesty ceased to be king, and the Crown passed to George VI [s 1 (1)], from whom it descended lineally to Her present Majesty Queen Elizabeth II. The Duke of Windsor (the former King Edward VIII) and any issue he might have were excluded from the succession: s 1 (2).
As to the effect of the Act of Settlement 1700 (12 and 13 Will III c 2) (Eng) and the subsequent statute, 4 Anne c 4 (Princess Sophia, naturalisation) (1705) (otherwise 4 and 5 Anne c 16) (Eng) (repealed) on the lineal descendants of Princess Sophia, see Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436, [1957] 1 All ER 49, HL (lineal descendants are British subjects). Indeed, Blackstone maintained that this Act actually re-asserted the rule of hereditary succession. But it really provided for the Crown to continue in the hereditary line, but by right of Parliament (Blackstone 1978).
6 Ann c 41.
Halsbury’s Laws of England, at para 850.
Act of Settlement 1700 (12 and 13 Will III c 2) (Eng) s 1: the lords spiritual and temporal and commons shall and will, in the name of all the people of the realm, most humbly and faithfully submit themselves, their heirs and posterities, and faithfully promise [in the event of the decease of King William III and of Queen Anne and the failure of the heirs of their respective bodies] to stand to, maintain and defend the heirs of the body of the Princess Sophia, being Protestants, according to the limitation and succession of the Crown in the Act specified and contained, to the utmost of their powers, with their lives and estates, against all persons whatsoever that shall attempt anything to the contrary.
(1608) 7 Co Rep 1a; 77 E.R. 377.
23 May 2013. This was based on a Joint Report by the Church and Society Council, the Committee on Ecumenical Relations, and the Legal Questions Committee on the implications for the Church of Scotland of independence for Scotland, 15 May 2013. The Report itself didn’t conclude that a coronation was necessary, but the General Assembly endorsed that more specific sentiment.
See, generally, Wollaston (1903).
See the Coronation of Her Majesty Queen Elizabeth the Second: minutes of the proceedings of the Court of claims 1952. Officeholders were generally only excluded where their services were not needed, as because of the abolition of the coronation banquet.
King Edward VIII was not of course crowned, owing to his abdication a few months before his planned coronation, nor was King Edward V (one of the Princes in the Tower), and in strict terms both were still king.
Robins (2006).
Queen Caroline’s Claim to be Crowned (1821) 1 State Trials NS 949.
College of Arms register I.85/194.
Act of Settlement 1700 (12 and 13 Will III c 2) s 2. In terms of this provision the form of the oath is provided by the Coronation Oath Act 1688 (1 Will and Mary sess 4 c 6), s 3, and must be administered by the Archbishop of Canterbury or York, or any other bishop of the realm appointed by the Sovereign for that purpose, in the presence of all persons attending, assisting or otherwise present at the coronation: s 4.
12 and 13 Will III c 2.
1 Will III and Mary c 6.
Report of the Justice and Law Reform Committee on the Imperial Laws Application Bill (1988) Explanatory Material p 57–60.
The form of the oath as at present administered differs from that provided by the act owing to the dis-establishment of the Irish Church (by the Irish Church Act 1869 [32 and 33 Vict c 42)], and by the provisions of the Union with Scotland Act 1706 (6 Ann c 11) art xxv.
The latest form of the Coronation Oath may be seen in the Proceedings of the Coronation of Her Majesty The Queen, 2 June 1953:
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Archbishop of Canterbury—“Madam, is your Majesty willing to take the oath?”
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The Queen—“I am willing”
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Archbishop of Canterbury—“Will you solemnly promise and swear to govern the people of this United Kingdom of Great Britain and Northern Ireland and the other realms and territories, according to the statutes in Parliament agreed on, and the respective laws and customs of the same?”
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The Queen—“I solemnly promise to do so”
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Archbishop of Canterbury—“Will you, to the utmost of your power, maintain the laws of God, the true profession of the Gospel, and the Protestant Reformed Religion established by law? And will you maintain and observe inviolably the settlement of the Church of England and the doctrine, worship, discipline and government thereas by law established in England? And will you preserve unto the bishops and clergy of England and to the churches there committed to their charge, all such rights and privileges as by law do or shall appertain to them or any of them?”
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The Queen—“I will”
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The election proper (the enthronement at Westminster Hall) was abandoned at the accession of Edward VII, but the religious equivalent persists, though the above is really only the confirmation of the election.
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12 and 13 Will III c 2.
Her Majesty The Queen made the declaration on opening Parliament on 4 November 1952.
1 Will III and Mary sess 2 c 2.
Bill of Rights 1688 (1 Will and Mary sess 2 c 2), s 1; Act of Settlement 1700 (12 and 13 Will III c 2) s 2; Accession Declaration Act 1910 (10 Edw VII and 1 Geo V c 29). The declaration was made by King George V at the opening of Parliament, and therefore the necessity for making it at the coronation did not arise: 7 HL Official Reports (5th series) col 4. The same was true in the case of Queen Elizabeth II. King George VI made the declaration during the coronation service: see Supplement to the London Gazette, 10 November 1937, p 7054. For the purposes of any enactment requiring an oath or declaration to be taken, made or subscribed by the Sovereign on or after the accession, the date on which the Sovereign attains the age of eighteen years is deemed to be the date of the accession: Regency Act 1937 (1 Edw VIII and 1 Geo VI c 16) s 1 (2).
10 Edw VII and Geo V c 29.
I [xx] de solemnly and sincerely in the presence of God profess, testify and declare that I am a faithful Protestant, and that I will, according to the true intent of the enactments which secure the Protestant succession to the Throne of my Realm, uphold and maintain the said enactments to the best of my powers according to law.
Nicolson (1952, 162–163).
Act of Settlement 1700 (12 and 13 Will III c 2) s 3.
Nor, indeed, need they be a member of the Church of England, merely in communion with it. Kings George I and George II were German Lutherans. Members of the Sovereign’s family need not be in communion with, or members of, the Church of England. The Duke of Edinburgh, before marrying The Queen, was received into the Church, although as a member of the Greek Orthodox Church, he was already a member of a Church in communion with the Established Church in England.
Union with Scotland Act 1706 (6 Ann c 11) art xxv, and ss 2–5. The oath for the preservation of the Established Church of England is now administered as part of the coronation oath. The oath for the preservation of the Presbyterian Church in Scotland was taken by Queen Elizabeth II at a meeting of the Privy Council held immediately after her accession, the instrument being subscribed in duplicate, and one part sent to the Court of Session to be recorded in the Books of Sederunt, and afterwards to be lodged in the Public Register of Scotland, the other part remaining among the records of the Council to be entered in the Council Book: see the London Gazette Extraordinary, 8 February 1952, p 861.
s 2.
The actual wording used says that any person “who shall be reconciled to, or hold communion with, the see or Church of Rome, or profess the popish religion, or marry a papist”, is excluded from “inheriting, possessing or enjoying the Crown”.
This is the joint effect of the Act of Settlement 1700 (12 and 13 Will III c 2) (Eng) s 2, as amended by the Accession Declaration Act 1910 (10 Edw VII and 1 Geo V c 29) (UK), and the Bill of Rights 1688 (1 Will III and Mary sess 2 c 2) (Eng) s 1, as amended by the Juries Act 1825 (6 Geo IV c 50) (UK) s 62.
12 and 13 Will III c 2 (Eng).
Thus Prince Edward Duke of Kent retains his position (34th in 2016) in the line of succession despite his wife Katharine having been received into the Roman Catholic Church on 11 January 1994. However, their son George Earl of St Andrews lost his right to the Throne when he married the Roman Catholic Sylvana Palma Tomaselli 9 January 1988. Similarly, Prince Michael of Kent lost his own right to the Throne when he married Baroness Marie-Christine von Reibnitz 1978. Anyone who is disqualified loses their title to the Crown by operation of law, and without the need for any procedures to be followed. Children of such parents retain their right to succeed so long as not otherwise disqualified.
Thus the marriage of George Prince of Wales to Mrs Maria Fitzherbert, a devout Catholic and twice a widow, did not disqualify him from succeeding as king in 1820, as the marriage was contrary to the Royal Marriages Act 1772 (12 Geo III c 11) (GB), and legally null and void. The Act itself is archaic and badly drafted. It has been argued that the Act does not apply to any of Queen Victoria’s descendants—O’Farran (1953).
The Royal Marriages Act 1772 applied to all the descendants of George II, other than the issue of princesses who have married into foreign families. Their marriages are void unless the consent of the Queen has been formally signified. Such a person may, however, marry without consent if they are over twenty-one, provided they give 12 months’ notice to the Privy Council and the two Houses of Parliament do not register objection during that period. It was repealed by s 3 of the Succession to the Crown Act 2013.
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Cox, N. The Right of Peers to Attend the Accession Council and the Coronation. Liverpool Law Rev 37, 105–117 (2016). https://doi.org/10.1007/s10991-016-9184-0
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DOI: https://doi.org/10.1007/s10991-016-9184-0