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“The Constitutional Issue
Arising from Abdication”

by F.R. SCOTT

FROM the constitutional point of view, the issues raised by King Edward’s abdication are of the greatest importance. They have brought into sharp relief the constitutional nature of the British monarchy, and in so far as their settlement require action by Dominion Parliaments they show the extent to which the British Commonwealth has evolved in the direction of a purely personal union of states.

The title to the Crown descends in the manner fixed in the Act of Settlement of 1700. The King holds his title, not by divine right, but by parliamentary right. Until the Statute of Westminster of 1931, the British Parliament at any moment could have changed the law of succession by a statute which would have required merely a majority vote in both Houses. There is no provision in the law for the possibility of abdication, and while the matter is not free from doubt the better view is that the King has no right in himself to resign the throne. A declaration of resignation or abdication would therefore require legisltion by Parliament to be made effective. If this view is correct, then Edward VIII will cease to reign only from the moment when he gives his assent to the bill providing for his abdication.

The law places no restrictions upon the King’s choice in marriage, except that he may not marry a “Papist.”If he had married a commoner, even of non-British nationality, she would have been lawfully queen and their children would have inherited the throne. The question of divorce would not affect the issue in law, provided the divorce decree were final. That is why it would have been necessary in order to make such a marriage morganatic and to exclude children from the throne, to enact special legislation. At the same time, the marriage of the King is a matter which clearly is not of solely private concern to himself, and if his ministers advise against a particular marriage, or against the introduction of a statute rendering morganatic, it is his constitutional duty to abide by their decision. The Sovereign may, it is true, lawfully dismiss a ministry and entrust the government to other advisors: he could lawfully dissolve parliament and test the feeling of the country in a general election. But this would be an extreme use of his prerogative powers, quite contrary to the generally accepted view as to the constitutional behaviour of the monarch.

Once a king has ceased to be a king by abdication, however, his power to marry would be governed by the Royal Marriage Act of 1772, which declares that, since “marriages in the royal family are of the highest importance to the state”, no descendant of George II (other than the issue of princesses who have married into foreign families) shall be capable of contracting matrimony without the previous consent of his Majesty- in this case the new King. But since Edward is over twenty-five years of age, in lieu of such consent he may notify his intention to marry to the Privy Council, and after one year from such notice, but not before, he may contract the marriage provided that Parliament has not disapproved. So if he wants to marry Mrs. Simpson the former king will have to obtain his younger brother’s consent, or wait a year from notice, or have the law changed.

The existence of the Statute of Westminster introduces elements of what may be called “commonwealth constitutional law” as distinct from English constitutional law. The preamble to that statute declared that “inasmuch as the Crown is the symbol of the free association of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliament of all the Dominions as of the Parliament of the United Kingdom.” This preamble was originally inserted in order to make it appear that no dominion might secede without the consent of the other dominions. It is now discovered to give the dominions a right, conventional if not legal, to pronounce upon the abdication. The preamble to a statute is not strictly law; if the British Parliament were to ignore the wishes of the dominions and to enact the statute of abdication without their consent, it is probable that the kingship would immediately be changed for the whole commonwealth. Nevertheless such action would be a breach of what is now a well-defined procedure. For that reason Mr. Mackenzie King has properly announced that his government has notified the British Government, on behalf of Canada, that this Dominion consents to the proposed legislation by the Dominion Parliament at its next session. The other dominions, with the possible exception of the Irish Free State, will do likewise. Thus will be established, for the first time in practice, the principle that the occupant of the British throne holds his high office by reason, not only by the consent of the elected representatives of the peopl of Great Britain, but also of the people of the various dominions. From one point of view this action emphasizes the unity of the Commonwealth under the Crown; but from another point of view it also indicates that the union is a personal one. It suggests that the King of England is not automatically King of Canada, but that his authority in and over this dominion rests ultimately upon the consent of the Canadian and not merely of the English people. The divisibility of the Crown is thereby emphasized – a point which will have great bearing upon the question much discussed these days as to whether one part of the Commonwealth may be neutral when another part is at war.

Should any dominion refuse to consent to the legislation authorizing the abdication, some confusion may be created. Legally speaking it may be argued, as suggested above, that the preamble to the Statute of Westminster does not enact positive law but merely suggests a principle, or practice that ought to be followed. It might also be argued that the “law touching the succession” is not really being altered at all; all that is happening is that the Crown is passing to the next heir, in strict accordance with the Act of Settlement, exactly as if Edward VIII had died instead of abdicating. It is true also that the legal sovereignty of the Imperial parliament still exists in theory, so that it may disregard even the provisions of the Statute of Westminster itself. As a last resort, the view might be put forward that the king has a right to abdicate of his own free will, thus vacating the throne and automatically transferring it to the Duke of York at the moment he signed his declaration; in which case all the subsequent legislation, in England or elsewhere, is superfluous. If any of these arguments is valid, the refusal of a Dominion to consent to the abdication would make no difference: the new king will reign over the whole Commonwealth. But such reasoning is narrowly legalistic, and there is much logic in the position that, since all the dominions should agree in order to change the succession, no change can occur until they all have agreed. Carried to its logical conclusion this would mean that Edward VIII would not cease to reign until the last dominion had assented to the statute legalizing the change; it would also follow that any one dominion could still keep Edward on the throne. These are the kinds of difficulty which the new concept of Commonwealth kingship entails, and the law of the constitution is still inadequate to provide an exact rule for so novel a situation.