Royal Baby Signals the End of Primogeniture

I’m not one much for the hype around royal babies, who as of now remains unnamed, but this one has some special significance for Commonwealth nations. The birth of the baby girl yesterday to Prince William and Kate Middleton signals the first royal born since the enactment of new succession laws in the U.K.

The Succession to the Crown Act 2013 ended the centuries-old practice of primogeniture. This can be traced in law to the Act of Settlement 1701, which states,

The Princess Sophia, Electress and Duchess Dowager of Hanover, Daughter of the late Queen of Bohemia, Daughter of King James the First, to inherit after the King and the Princess Anne, in Default of Issue of the said Princess and His Majesty, respectively and the Heirs of her Body, being Protestants.

These heirs were interpreted by common law to only refer to male descendants, and only Protestant ones at that.

After the new reforms, the new royal baby will now be 4th in line to the throne, following Prince Charles, Prince William and Prince George. If William and Kate have another baby boy in the future, that boy will no longer supersede the the new royal baby girl.

All fine and dandy for those really into tracing genealogy. The implications for Canadians is in the Succession to the Throne Act, 2013, which came into force March 26, 2015, just in time for this new arrival.

The exclusion of Catholics under the Act of Settlement has been unsuccessfully challenged as discriminatory in Canadian courts. Justice Rouleau stated in O’Donohue v. Canada,

[3] The Act of Settlement is an imperial statute adopted by the United Kingdom in 1701. By its terms it provides that it is an act “established and declared” in the “Kingdoms of England, France and Ireland, and the dominions thereunto belonging”. As a result it became and remains part of the laws of Canada.

[4] The Act of Settlement contains several provisions but one in particular addresses the difficult succession issues that led to civil war in England in the latter part of the 17th century. This provision in effect provides that Roman Catholics cannot accede to the Crown of England, nor be married to someone who holds the Crown. The statute provides, in part, as follows:

And it was thereby further enacted, that all and every person and persons that then were, or afterwards should be reconciled to, or shall hold communion with the see or Church of Rome, or should profess the popish religion, or marry a papist, should be excluded, and are by that Act made for ever incapable to inherit, possess, or enjoy the Crown and government of this realm, and Ireland, and the dominions thereunto belonging, or any part of the same, or to have, use, or exercise any regal power, authority, or jurisdiction within the same: and in all and every such case and cases the people of these realms shall be and are thereby absolved of their allegiance; and that the said Crown and government shall from time to time descend to and be enjoyed by such person or persons, being Protestants, as should have inherited and enjoyed the same, in case the said person or persons, so reconciled, holding communion, profession or marrying, as aforesaid, were naturally dead.

[emphasis added]

Similarly, the Ontario Court of Appeal concluded in Teskey v. Canada (Attorney General),

[6] …The rules of succession are a part of the fabric of the constitution of Canada and incorporated into it and therefore cannot be trumped or amended by the Charter

Fortunately the Succession to the Crown Act also amended the anti-Catholic exclusion under the inheritance laws. George Windsor is now restored to his rightful place as 34th, after he had been removed for marrying a Catholic in 1988.

What the Succession to the Crown Act does not eliminate is the Protestant requirement for the throne. The content of the amendments, and the manner in which they were executed in Canada, are currently undergoing a constitutional challenge in Quebec.

The royal baby also has potential relevance in the context of the Oath of Citizenship, which makes reference to the monarch,

I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.

The oath was unsuccessfully challenged last year in McAteer v. Canada (Attorney General), where several applicants claimed the plain meaning of this text meant they were swearing an oath in their personal capacity. Justice Weiler rejected this interpretation and applied a purposive approach,

[7] The appellants’ incorrect interpretation of the meaning of the oath cannot be used as the basis for a finding of unconstitutionality…
Applying this approach, there is no issue that the oath is expression. I hold that the purpose of the oath is not to compel expression but to obtain a commitment to our form of government from those wishing to become Canadian citizens. Although the oath has an effect on the appellants’ freedom of expression, constitutional disapprobation is not warranted…
There is no violation of the appellants’ right to freedom of religion and freedom of conscience because the oath is secular and is not an oath to the Queen in her personal capacity but to our form of government of which the Queen is a symbol
[emphasis added]

Those future Canadians, who may not even know they will move to Canada one day, are all waiting in anticipation of her name. This unnamed baby royal, who may one day occupy the symbolic head of our government, is worthwhile paying attention to because thousands of future Canadians may be invoking her name as part of their allegiance to our laws as new citizens.

Okay, that and I’ll admit she’s a little cute to look at.

Comments

  1. It’s interesting that the law saying that Catholics may not “have, use, or exercise any regal power, authority, or jurisdiction within” the dominions has not prevented Catholics from holding office as Governors General of Canada. I don’t know if the point was ever litigated – people seemed more respectful of the office, or just less willing to spend money on symbolic litigation, in the olden days.

    No doubt our courts would have found it possible to hold that ‘exercise regal power’ did not extend to ‘vice-regal power’, in a country whose basic framework involved a careful balance of rights of Protestant and Catholic, rather than one that was emerging from a century and a half of religious strife where the winners intended to consolidate their gains.

  2. Male primogeniture is no longer the rule for succession to the Crown, but it hasn’t gone away entirely: it still applies to hereditary peerages, which has some noblemen’s daughters up in arms of late.

    Another question that hasn’t been addressed is what happens if Prince George marries his boyfriend. A woman traditionally takes her husband’s title, but a man doesn’t take his wife’s — although in recent years the male spouses of female Canadian Governors General have been granted the style of ‘Excellency’. Sir Elton John’s spouse is, however, still just plain Mr Furnish.

    Problems of the less than 1%, but still worthy of a consistent approach?