Attorney-General v Prince Ernest Augustus of Hanover

Dec. 5. Viscount Simonps. My Lords, the Court of Appeal
has declared that H.R.H. 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 Lordships'
House. The question is to be answered upon 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 granddaughter of
King James I. 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 upon the death of Queen Anne
without heritable issue, the Crown of England would descend upon
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 40 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

1956

ATTORNEY-

GENERAL

v

PRINCE
ERNEST
ambiguous, the preamble can be looked at if they are phrased ee OF

ANOVER,

458

Bil.
1956

ATTORNEY-
GENERAL
v.
PRINCE
ERNEST
AUGUSTUS OF
HANOVER.

Viscount
Simonds.

HOUSE OF LORDS [1957 |

there were living six lineal descendants of the Electress: her
eldest son, who became King George I, her second son, Maximilian
William, her third son, Ernest Augustus, Duke of York, her
grandchildren, the children of George I, George who became
George II, and Sophia Dorothea, and her grandson Frederick
William, the son of her daughter Sophia Charlotte and Frederick I,
King of Prussia.

It is proper, too, to have in mind what was the state of the
law in regard to naturalization in the year 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, namely, the passing of the Aliens Act, 1844, any general
Act enabling aliens to be naturalized. 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 upon 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 upon 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 upon it by the
Attorney-General. By an Act 7 Jac. 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 Persons attainted, 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 Highteen
'' 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,

A.C. AND PRIVY COUNCIL.

""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 England, 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 or 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 upon
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,
'" Klectress and Duchess 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
"" Duchess Dowager of Hanover, and the Issue of her Body.

"WHEREAS the Most Excellent Princess Sophia, Electress
'"and Duchess 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, accord-
'""ing 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 Duchess 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 expres-
sion '' the Issue of Her Body,'' that is of the body of the Princess

459

H. L. (E.)
1956

ATTORNEY-
GENERAL
0.
PRINCE
ERNEST
AUGUSTUS OF
HANOVER.

Viscount
Simonds.

460

H. L. (E.)
1956

ATTORNEY-
GENERAL
v.
PRINCE
ERNEST
AUGUSTUS OF
HANOVER.

Viscount
Simonds.

HOUSE OF LORDS [1957 |

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. Upon 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:

[His Lordship read the Act and continued: ] 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 con-
tention 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 ag 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 back-
ground 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 naturalized should
be encouraged to become acquainted with the laws and constitu-
tions of the Realm and, most strongly, on the conjunction (also
in the preamble) of the words "' they '' and '' in Your Majesty's
"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

A.C. AND PRIVY COUNCIL.

enacting part of a statute is clear and unambiguous, it cannot be
cut down by the preamble, 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 preamble 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 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 proposi-
tions. 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 naturalized 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,

461

H. L. (#.)
1956

ATTORNEY-
GENERAL
0.
PRINCE
ERNEST
AUGUSTUS OF
HANOVER.

Viscount
Simonds.

462

HL. ie)
1956

ATTORNEY-
GENERAL
De
PRINCE
ERNEST
AUGUSTUS OF
HANOVER.

Viscount
Simonds.

HOUSE OF LORDS [1957 |

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 upon 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 other
consideration 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 Majesty's Life Time.'' It is urged that only those
could be naturalized in Queen Anne's lifetime who were born in
her lifetime, and this is a self-evident proposition, at least, if
the word "' naturalized'? 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
naturalized by the Act and I proceed to the enacting part with
a doubt already implanted in my mind that the expression '"' they,
''in Your Majesty's life time . . . should be naturalized' is a
clumsy one which may mean no more than that "' an Act should
'be passed in Your Majesty's 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 generalizations, 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 juris-
diction 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 there-
fore that the enacting words are more general than the preamble

A.C. AND PRIVY COUNCIL.

would suggest is not enough. Something more is needed, and
here lies the heart of the problem. On the one hand, the proposi-
tion 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 L.J., which were cordially approved
by Lord Davey in Powell v. Kempton Park Racecourse Co. Ltd.?
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 had 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 the 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 ascrib-
able to the enacting part unless there is a compelling reason for
it. And I do not propose to define that expression except nega-
tively 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
'* Majesty's life time . . . should be naturalized '' is susceptible of
meaning that an Act should be passed in the lifetime of the
Queen for the naturalization 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

1 [1897] 2 Q.B. 242, 299; 13 2 [1899] A.C. 143, 185; 15 T.L.R.
T.L.R. 281. 266.

463

Hy L.. (E:)
1956

ATTORNEY-
GENERAL
0.
PRINCE
ERNEST
AUGUSTUS OF
HANOVER.

Viscount
Simonds.

464

H. L. (E.)
1956

ATTORNEY-
GENERAL
v.
PRINCE
ERNEST
AUGUSTUS OF
HANOVER.

Viscount
Simonds.

HOUSE OF LORDS [1957 |

''nergons 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 III,
whereby the then Prince of Brunswick Luneburg was naturalized
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 was 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 60 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 mis-
interpreted 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 the year 1705 could not be effective
to confer the status of a British subject upon a person born on
foreign soil after the Act of Union. This point, which I state,
perhaps badly 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 ng pronouncement upon it.

In the result, I am of opinion that the appeal should be
dismissed and I move your Lordships accordingly.

Lorp Normanp. My Lords, the only question for adjudication
in this appeal is whether the effect of the Act 4 Anne, c. 4, was to
naturalize, subject to the exclusion provided for by the second
section, those children and lineal descendants of the Electress
Sophia who were alive at the passing of the Act and those who

A.C. AND PRIVY COUNCIL.

were born thereafter but before the death of Queen Anne, or
whether the effect was to naturalize, subject to the same exclu-
sion, all persons lineally descending from the Electress alive at
the passing of the Act or born at any time thereafter. The
question is one of interpretation, and it is not in- doubt that
the Act must be construed as it would have been construed
immediately after it became law.

The Act itself and the related Acts, 7 Jac. 1, c. 2 and 4 Anne,
c. 1, have already been brought sufficiently to the notice of the
House, and I need not recite them here. On either of the
constructions put forward, the effect of the Act, both intended
and actual, was to confer the privileges and obligations of
naturalization on persons neither resident within nor expected to
reside within the realm without their having any voice on the
matter and without requiring that they should take the Oath of
Allegiance. On the other hand, naturalization was conferred
only on persons who might in conceivable circumstances succeed
to the throne under the Act of Settlement. The Act is unique
in these respects and the scope of its operation must not, in my
opinion, be extended beyond those who are manifestly covered by
the enacting words.

In order to discover the intention of Parliament it is proper
that the court should read the whole Act, inform itself of the legal
context of the Act, including Acts so related to it that they may
throw light upon its meaning, and of the factual context, such as
the mischief to be remedied, and those circumstances which
Parliament had in view, including in this case the death of the
last of Queen Anne's children and the state of the family of the
Princess Sophia. It is the merest commonplace to say that words
abstracted from context may be meaningless or misleading.

The issue in the appeal is whether the words "' the issue of her
''body, and all persons lineally descending from her, born or
'hereafter to be born' are capable of suffering a limitation of
time which might have been expressed by adding to them such
words as '' during the life of Queen Anne.'' The issue may be
more closely defined. Much of the argument of the Attorney-
General rested on the basis that the enacting words were general
and that general words are more susceptible of control by context
than specific words, and he cited authorities in support of this
proposition. If the words in the present case had been "' the
'' issue of her body, and all persons lineally descending from her "'
alone, the authorities which the Attorney-General referred to

A.C. 1957. 31 (1)

465

ES ECs)
1956

ATTORNEY-
GENERAL
v.
PRINCE
ERNEST
AUGUSTUS OF
HANOVER.

Lord
Normand.

466

AL. (9
1956

ATTORNEY-
GENERAL
v.
PRINCE
ERNEST
AUGUSTUS OF
HANOVER.

Lord
Normand.

HOUSE OF LORDS [1957 |

would have been material. Here, however, it is the words quali-
fying these general words by reference to the time of birth that
are important, and it is their meaning that we have to ascertain.

Before attempting to solve this question, it will be proper to
consider the reasons, derived from the context of attendant
circumstances or of law, which on the Attorney-General's
argument are relevant to influence the construction of the enacting
words. The Attorney-General maintained that the naturalizing
of all future descendants of the Princess Sophia was inherently so
absurd that Parliament cannot be supposed to have intended it.
I can dispose of this point at once by saying that I agree with the
observations upon it of Romer L.J. in the Court of Appeal. The
Attorney-General then relied on the terms of the Act 4 Anne, c. 1,
which paved the way for the Act now under construction, and
provided for the introduction of a Bill naturalizing the Princess
Sophia and the issue of her body alive at its date only. I think
that the Act 4 Anne, c. 1, does not assist the Attorney-General,
for the reasons stated by Romer L.J. The lack of issue of Queen
Anne and the state of the family of the Princess Sophia throw no
light on construction. It is true that if the Act naturalized only
those descendants born before Queen Anne's death, the successor
to Queen Anne and the successor to her successor would probably
have been among those naturalized, but Parliament might well
have intended to go further and to naturalize all who under the
Act of Settlement might in certain events, probable or not,
succeed to the throne.

The Attorney-General placed the main weight of his argument
on the preamble of the Act 4 Anne, c. 4. The preamble is,
however, itself in need of construction. After a reference to the
Act of Settlement and some compliments addressed to Queen
Anne it continues '' and to the end the said Princess Sophia...
"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 reason-
"able, that they, in your Majesty's life time . . . should be
"naturalized, and be deemed, taken, and esteemed natural-born
"subjects of England.'' It is to be noted that the parties agreed
that the sentence beginning '' and be deemed '' and ending with
"subjects of England '' is merely a description in common form
of the status conferred by naturalization. The important words
are "' they, in Your Majesty's life time should be naturalized.''
These words seem on the face of them to be a clumsy inversion of
the words '' They should be naturalized in Your Majesty's life

A.C. AND PRIVY COUNCIL.

'' time,'' and so far there is nothing to suggest that ''naturalized''
has not its ordinary meaning, viz., '' admitted to the rights of a
"'natural born subject.'' Such an interpretation receives some
support from the expressed motive that the persons to be natur-
alized would be encouraged to become acquainted with the laws
and constitutions of the realm. This would be a not unreasonable
expectation for a limited time and a limited number of persons,
but it is scarcely probable that Parliament should expect all future
descendants of the Princess Sophia, however remote from any
prospect of succeeding to the throne, to be encouraged to apply
themselves to the study of English laws and constitutions. The
respondent's suggestions that the words '"'in Your Majesty's
"" life time '' merely mean '' now '' and that ''naturalized'' means
"have an Act passed providing for their naturalization '' or the
like, do considerable vioience to the language used by Parliament.
Moreover, the word '' now,'' if it were substituted, would be
otiose, and the words ''and be deemed,"' etc., fit ''naturalized"' if
it is used in its ordinary sense, but are awkward if '' naturalized "'
is given the meaning which the respondent would ascribe to it.
I would therefore provisionally accept the construction of the
preamble put forward by the Attorney-General, always bearing in
mind that the preamble is part of the statute, and that no part of
a statute can be regarded as independent of the rest.

When there is a preamble it is generally in its recitals that the
mischief to be remedied and the scope of the Act are described.
It is therefore clearly permissible to have recourse to it as an aid
to construing the enacting provisions. The preamble is not,
however, of the same weight as an aid to construction of a section
of the Act as are other relevant enacting words to be found else-
where in the Act or even in related Acts. There may be no exact
correspondence between preamble and enactment, and the enact-
ment may go beyond, or it may fall short of the indications that
may be gathered from the preamble. Again, the preamble cannot
be of much or any assistance in construing provisions which
embody qualifications or exceptions from the operation of the
general purpose of the Act. It is only when it conveys a clear
and definite meaning in comparison with relatively obscure or
indefinite enacting words that the preamble may legitimately
prevail. The courts are concerned with the practical business of
deciding a lis, and when the plaintiff puts forward one construction
of an enactment and the defendant another, it is the court's
business in any case of some difficulty, after informing itself of
what I have called the legal and factual context including the

A.C. 1957. 31 (2)

467

BY Li. (BE)
1956

ATTORNEY-
GENERAL
v.
PRINCcH
ERNEST
AUGUSTUS OF
HANOVER.

Lord
Normand.

468

Hub. (29
1956

ATTORNEY-
GENERAL
On
PRINCE
ERNEST
AUGUSTUS OF
HANOVER.

Lord
Normand.

HOUSE OF LORDS [1957 |

preamble, to consider in the light of this knowledge whether the
enacting words admit of both the rival constructions put forward.
If they admit of only one construction, that construction will
receive effect even if it is inconsistent with the preamble, but if
the enacting words are capable of either of the constructions
offered by the parties, the construction which fits the preamble
may be preferred.

Now, I am of opinion that we have in the present instance a
simple case where the enacting words are capable of the respon-
dent's construction and not reasonably capable of the appellant's
construction. The question is whether the words "' all persons
''lineally descending from her '' (the Princess Sophia) '* born or
'' hereafter to be born '' can reasonably be construed as subject to
a limitation of time, such as the date of Queen Anne's death.
Though it may be an exaggeration to say that no words can be
conceived more apt to exclude such a limitation, they are clear
enough. I find it difficult to think that if a limitation to the life of
Queen Anne had been intended it would not have been expressed.
The words "' born or hereafter to be born "' appear here for the first
time with the evident purpose of clarifying the descriptive words
'* all persons lineally descending from her.'' Unless "' hereafter "'
means '' at any time hereafter' the words '' born or hereafter
'"to be born'"' have no clarifying effect whatever and would be
better omitted. If they are to receive any effect they are in the
absence of compelling context inconsistent with any terminus ad
quem short of the failure of all descendants. The words are not
only clear, they are also direct, whereas it is only by inference
that the preamble seems to limit the operation of the Act to
those born before Queen Anne's death. There is no clumsiness
in the wording to raise a doubt whether they mean what they
seem to mean. Nothing but the most compelling context would
justify a construction radically altering the plain meaning of the
enacting words by reading into them a qualification such as "' in
'""Her Majesty's life time.'' The preamble has no such com-
pulsive force. It may be possible to read the preamble in the
sense put forward on behalf of the respondent, or it may be
said that the enacting words go beyond the preamble. For the
purposes of the present case it matters not which.

I am therefore of opinion that the appeal should be dismissed.
I agree with what my noble and learned friend on the Woolsack
has said on the possible bearing of the Act of Union on the opera-
tion of the Act 4 Anne, c. 4, and I express no opinion upon it.

A.C. AND PRIVY COUNCIL.

Lorp Morton or Henryton. My Lords, only one question
arises on this appeal; what is the meaning of a few words in the
enacting portion of the short statute 4 Anne, c. 4, of 1705.
These words are: '' Be it enacted . . . that the said Princess
'Sophia, Electress and Duchess 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."'

The argument centres round the words, twice repeated, *' the
'issue of her body, and all persons lineally descending from
"her, born or hereafter to be born.'' My Lords, these words,
standing by themselves, are surely capable of only one meaning.
They include everyone, whenever born, who is a lineal descen-
dant of the Princess Sophia. This was recognized by Vaisey J.
and by all the members of the Court of Appeal. Vaisey J.°
referred to these words as '' the apparently clear and unam-
'""biguous terms of the enacting provisions of the Act of Anne,"'
and later referred to them' as '' unqualified and plain in their
""meaning, when standing alone.'' The Attorney-General,
however, contended that the class described in these words is
limited to persons born within the lifetime of Queen Anne, who
died only nine years after the Act was passed. He relied princi-
pally upon the words of the preamble to the Act, which have
already been read, but he also placed some reliance upon the
statute 4 Anne, ec. 1, of 1705. He further contended that the
construction put forward on behalf of the respondent led to an
absurd result.

Other matters mentioned by the Attorney-General did not, I
think, impress your Lordships, and I do not find it necessary to
refer to them.

My Lords, to my mind the Attorney-General is faced, at the
outset, with one great difficulty. His argument really amounts
to an invitation to your Lordships to perform a surgical operation
on the enacting part of the statute by inserting, immediately
after the words '' born or hereafter to be born'"' the words "' in
'' Your Majesty's life time.'' Now, if the legislature had intended

6

'

3 [1955] Ch. 440, 444; [1955] 1 4 [1955] Ch. 440, 451.
All E.R. 746.

469

H. L. (B.)
1956

ATTORNEY-
GENERAL
v.
PRINCE
ERNEST
AUGUSTUS OF
HANOVER.

470

Hy L. @.)
1956

ATTORNEY-
GENERAL
v.
PRINCE
ERNEST
AUGUSTUS OF
HANOVER.

Lord Morton
of Henryton.

HOUSE OF LORDS [1957 |

to limit the class of persons to be naturalized, I can think of no
reason why these words should not have been inserted. These
very words, "' in Your Majesty's life time,'' had already been used
in the preamble, immediately before the enacting part, and it
would have been the most natural thing in the world to repeat
them in the enacting part, if the legislature had intended so to
limit the class. Instead of so doing, the legislature gave a strong
indication of a contrary intention. We find in the preamble a
reference to '' the said Princess Sophia . . . and the issue of her
'body, and all persons lineally descending from her''; and in
the enacting part, a few lines later, the same words are repeated
with the addition of the words '' born or hereafter to be born.''

Surely, my Lords, these words can only have been added in
order to make it abundantly clear that all descendants of the
Princess Sophia, whenever born, were to be naturalized. In the
face of these words, I find it hard to imagine any context, or any
circumstances, which should persuade your Lordships to perform
the surgical operation already mentioned, and the matters upon
which the Attorney-General relied fall far short of persuading
me to perform it. I turn first to his submission based upon the
following words in the preamble: '' And to the end the said
'* Princess Sophia, Electress and Duchess 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 Majesty's life time (whom
'"God long preserve) should be naturalized, and be deemed,
"taken, and esteemed natural-born subjects of England.'' The
Attorney-General submitted that these words show the intention
of Parliament that only those descendants of the Princess Sophia
who were born in the lifetime of Queen Anne were to be
naturalized. My Lords, I do not so read the words. I think that
the words '' that they, in Your Majesty's life time . . . should
"be naturalized,'' etc. do not operate to limit the class but
merely state the view that the naturalization should be effected
by an Act passed in Queen Anne's lifetime. This is, to my mind,
a@ more natural meaning of the words and I do not think it is
necessary to make any addition to, or transposition of, the words
used in order to give them that meaning. Moreover, there are,
I think, some strong objections to the construction for which the
Attorney-General contends. In the first place, it would be
strange indeed if Parliament, having already stated its object to

A.C. AND PRIVY COUNCIL.

be that the issue of the body of the Princess Sophia and all
persons lineally descending from her should be encouraged to
become acquainted with the laws and constitutions of England,
should immediately go on to limit the class of persons to be
naturalized, for this very purpose, to persons born in the lifetime
of Queen Anne. Secondly, if this passage had been intended to
bear the meaning attributed to it by the Attorney-General, surely
the words '"'in Your Majesty's Life Time'' would have been
linked with the description of the class and not with the words
"should be naturalized.'' The Attorney-General sought to gain
support from the words '' and be deemed, taken and esteemed
"natural born subjects of England,'' but it seems to me that
these words merely state the effect of naturalization.

I would not venture to say, my Lords, that the construction
of the preamble which appeals to me is the only possible con-
struction, but it seems to me equally impossible to say that the
construction for which the Attorney-General contends is the only
possible construction. The preamble is, to put it at its highest
in favour of the Attorney-General, an ambiguous document, and
as such it cannot in any way control the words of the enacting
part. In fact, if the preamble were clear one way and the
enacting part were equally clear the other way, there can be no
doubt that the latter must prevail.

The argument based on the Act 4 Anne, c. 1, of 1705 is to
this effect. This Act only refers to persons living at the time
when it was enacted. This is shown by the words "' by reason
'"of their being beyond the seas,'' since no person could be
beyond the seas unless he or she were alive. This was the Act
which paved the way to the Act now under consideration, and
your Lordships should place some limit as to time of birth upon
the class of persons covered by the latter Act. My Lords, I can
find no force in this argument. It is clear, from any view of
the preamble to the latter Act, that it extended at least to
persons who came into existence between the passing of the Act
and the death of Queen Anne, and I would adopt the words of
Romer L.J. in the Court of Appeal*®: "'. .. as, on any view,
'' the legislature departed in the second Act from the very limited
'' scope which was envisaged by the recital in the first, the only
'' question, as it seems to me, is as to the extent of such depar-
''ture. I therefore find no assistance, in construing the second
'* Act. from the language of the first.''

5 [1956] Ch. 188, 218; sub nom. H.#.H. Prince Ernest Augustus
of Hanover v. Attorney-General [1955] 3 All E.R. 647.

471

H. L. (E.)
1956

ATTORNEY-
GENERAL
v.
PRINCE
ERNEST
AUGUSTUS OF
HANOVER.

Lord Morton
of Henryton.

472

H..L. (£.)
1956

ATTORNEY-
GENERAL
v.
PRINCE
ERNEST
AUGUSTUS OF
HANOVER.

Lord Morton
of Henryton.

oe

HOUSE OF LORDS [1957 |

As to the argument that the enacting words are absurdly
wide in their scope if they are given their natural meaning, it
must be borne in mind that the matter must be viewed from the
standpoint of those who were legislating in the year 1705, and I
would again quote from the judgment of Romer L.J.°: "I see
'' nothing necessarily or inherently absurd in the conception that
'' Parliament was intending to provide in 1705 that all those
'upon whom the British Crown might subsequently devolve by
'' virtue of the Act of Settlement should become British citizens
'at birth; and Parliament was presumably alive to the fact that,
'if the class of persons affected by the Act should become
'' eventually too large, it could be closed by subsequent legisla-
''tion. It appears to me that a far greater degree of absurdity
'than that which has been suggested in this case is required to
'' justify the court in departing from clear enacting language,
'assuming that absurdity does, in itself, afford ground for any
'such departure.''

If the enacting words are to bear their natural meaning the
respondent must succeed, for it is admitted that he is a lineal
descendant of the Electress Sophia and that he is and at all times
has been a Protestant, so that he is not excluded by the proviso
to the Act now under consideration.

In my view, the Court of Appeal arrived at the correct con-
clusion and this appeal should be dismissed.

I agree with the observations of my noble and learned friend
on the Woolsack as to the Act of Union.

Lorp Tucker. My Lords, I am in complete agreement with
the opinion that has been delivered by my noble and learned
friend on the Woolsack and have nothing to add thereto.

Lorp SomerveLL oF Harrow. My Lords, your Lordships
were referred to a number of statements in speeches or judgments
dealing with the construction of statutes.

There are, I think, two distinct subject-matters dealt with in
the passages to which reference was made. In the first place, it
was necessary to decide what can or cannot be invoked and relied
on by either party in support of its case outside the words of the
Act itself. It seems now clear that the '' intent of the Parliament
'"" which passed the Act'' is not to be gathered from the parlia-
mentary history of the statute. The mischief against which the

5 [1956] Ch. 188, 218.

A.C. AND PRIVY COUNCIL.

Act is directed and perhaps, though to an undefined extent, the
surrounding circumstances can be considered. Other statutes in
pari materia and the state of the law at the time are admissible.
" Subsequent legislation, if it proceed upon an erroneous con-
"struction of previous legislation, cannot alter that previous
"legislation: but if there be any ambiguity in the earlier
"legislation then the subsequent legislation may fix the proper
"interpretation which is to be put upon the earlier.'' (Lord
Sterndale in Cape Brandy Syndicate v. Inland Revenue Commis-
sioners,® cited and approved by Lord Buckmaster in Ormond
Investment Co, Ltd. v. Betts.")

These are properly called rules. They apply in all cases to
determine what can and cannot be referred to and relied on. The
above list is not intended to be either exhaustive or precise but to
mark the distinction between rules as to admissibility and the
solution of the problems which arise when one turns to the actual
words of the Act.

A question of construction arises when one side submits that
a particular provision of an Act covers the facts of the case and
the other side submits that it does not. Or it may be agreed it
applies, but the difference arises as to its application. It is unreal
to proceed as if the court looked first at the provision in dispute
without knowing whether it was contained in a Finance Act or a
Public Health Act. The title and the general scope of the Act
constitute the background of the contest. When a court comes
to the Act itself, bearing in mind any relevant extraneous matters,
there is, in my opinion, one compelling rule. The whole or any
part of the Act may be referred to and relied on. It is, I hope,
not disrespectful to regret that the subject was not left where
Sir John Nicholl left it in 1826. '' The key to the opening of
"" every law is the reason and spirit of the law—it is the ' animus
"«*imponentis,' the intention of the law-maker, expressed in the
""law itself, taken as a whole. Hence, to arrive at the true
"" meaning of any particular phrase in a statute, that particular
"' phrase is not to be viewed, detached from its context in the
"* statute: it is to be viewed in connexion with its whole context—
'* meaning by this as well the title and preamble as the purview or
'' enacting part of the statute.'' (Sir John Nicholl in Brett v.
Brett.* He proceeds in the next sentence to attach in that case
special importance to the preamble. We were referred to other

6 [1921] 2 K.B. 408, 414; 37 7 [1928] A.C. 148, 156.
T.L.R. 402 8 (1826) 3 Add. 210, 216.

473

H. L. (#.)
1956

ATTORNEY-
GENERAL
0.
PRINCE
ERNEST
AUGUSTUS OF
HANOVER.

Lord Somervell
of Harrow.

474

FAs. KES)

ATTORNEY-

1956

GENERAL

v

PRINCE
ERNEST

AUGUSTUS OF

HANOVER.

Lord Somervell
Harrow.

of

HOUSE OF LORDS [1957 |

statements minimizing the importance of the preamble. For
example, Buller J. in Crespigny v. Wittenoom °): "I agree that
'the preamble cannot contro] the enacting part of a statute,
''which is expressed in clear and unambiguous terms. But if
'" any doubt arise on the words of the enacting part, the preamble
'' may be resorted to, to explain it."'

The word '' unambiguous '' must mean unambiguous in their
context. The words ''a marriage'' are not ex facie ambiguous.
In one statutory context they mean a marriage celebrated in
England and in another a marriage wherever celebrated. Many
local Acts have their geographical limits set out in their preambles
and title. I take an example at random: 8 & 9 Vict. c. 22, is
'"An Act to enable the Commissioners of Greenwich Hospital to
'' widen and improve Fisher Lane, in Greenwich.'' If that Act
had contained in the enacting provisions words which in isolation
might have applied outside Greenwich, the preamble would control
their meaning.

If, however, having read the Act as a whole, including the
preamble, the enacting words clearly negative the construction
which it is sought to support by the preamble, that is an end of it.

It is also said that the court cannot look at a preamble to find
an ambiguity. Lord Davey's statement in Powell v. Kempton
Park Racecourse Co. Ltd.° is relied on. He said '' that you
"must not create or imagine an ambiguity in order to bring in
'"the aid of the preamble.'' I find it difficult to believe that
Lord Davey was intending to create an exception to the rule that
an Act, like other documents, must be considered as a whole.

Preambles differ in their scope and consequently in the weight,
if any, which they may have on one side or the other of a dispute.
There can be norule. If in an Act the preamble is a general and
brief statement of the main purpose, it may well be of little, if
any, value. The Act may, as has been said, go beyond or, in
some respects, fall short of the purpose so briefly stated. Most
Acts contain exceptions to their main purpose, on the meaning
of which such a preamble would presumably throw no light. On
the other hand, some general and most local Acts have their
limits set out in some detail. I will not hazard an example, but
there may well be cases in which a section, read with the
preamble, may have a meaning different from that which it
would have if there were no preamble. A court will, of course,

9 (1792) 4 Term Rep. 790, 798. 10 [1899] A.C. 148, 185.

A.C. AND PRIVY COUNCIL.

always bear in mind that a preamble is not an enacting provision,
but I think it must have such weight as it can support in all
contests as to construction.

Coming to the Act, I therefore accept the appellant's sub-
mission that the preamble and enacting words should be read
before deciding whether the latter are reasonably capable of the
meaning which the appellant seeks to place upon them. I do
not think they are. The words "all persons lineally descending
"from her, born or hereafter to be born,'' in my opinion, clearly
negative any intention to limit the effect of the Act to those born
in Queen Anne's lifetime. Whether the words are regarded as
general or specific, they could not have been used if the Act was
to be limited to those born in Queen Anne's lifetime.

The preamble is perhaps ambiguous, but the phrasing would,
I think, have been different if the intention had been that sub-
mitted by the appellant. If one goes through the words, having in
mind an intention of naturalizing, in addition to those now living,
only those future descendants born in Queen Anne's lifetime,
the words ''all persons lineally descending from her'' would
clearly have been so qualified. Instead of the word '' they "' one
would have had some such words as '' those now living and those
'"born hereafter in Your Majesty's lifetime.'' There is also, I
think, force in the argument for the respondent that '' natural-
'"ized'' refers to the Act of Parliament, and the later words
express its effect. This is supported by the fact that the word
'""naturalized '' does not occur in the enacting words. It is
sufficient if the preamble is ambiguous. On consideration, I am
clear that it does not bear the meaning submitted by the
appellant.

I have nothing I wish to add on the other points raised and I
would dismiss the appeal.

Appeal dismissed.