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The Dutch Royal Family is British!
Published online by Cambridge University Press: 21 May 2009
Extract
Article One of the Hague Convention of 1930 on Certain Questions Relating to the Conflict of Nationality Laws recognises that it is for each state to determine under its own law who is entitled to its nationality. But this must not be carried too far. Thus e.g. the leading British text-book on International Law observes that “it is clear that a State is not entitled to impose its nationality upon aliens residing for a brief period in its territory or upon persons resident abroad”. An extreme example of the former, and what may be thought to be a disregard of the latter, rule is to be found in the British statute called The Princess Sophia Naturalisation Act, 1705, as recently interpreted by the Court of Appeal in Prince Ernest of Hanover v. Attorney-General. It must be rare that the decision of a municipal court on such an archaic enactment has consequences of such magnitude abroad. Virtually all the protestant royal families of Europe—including that of the Netherlands—are British subjects if the decision of the Court of Appeal is correct, for no possible logical distinction can be discovered between the case of the successful claimant and that of other protestant descendants of an early eighteenth-century German princess. It is to be noted that this is not, at least in form, a mere right to claim United Kingdom nationality if desired, but a ruling that so far as English law is concerned these persons do in fact possess British Nationality. They are thus free from aliens' control when visiting England, could exercise civil rights—such as the franchise—there, could claim protection from the British Crown through its diplomatic and consular representatives, and finally—in the wildest theory —be prosecuted for the capital crime of treason in a British court.
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References
page 52 note 1 Oppenheim—Lauterpacht, Vol. I, 7th ed., 587, n. 1.
page 52 note 2 4 & 5 Ann., c. 4.
page 52 note 3 [1955] 3 All E. R. 647.
page 52 note 4 In the court below Vaisey J. was much impressed by this concept, particularly as applied to Kaiser Wilhelm II, who could have been prosecuted for treason against George V, to whom as a British subject he owed allegiance. Apart from theoretical difficulties, the practical difficulty was that the Kaiser had taken refuge at Doom in Holland. The Dutch naturally refused to hand him over to the Allies. Some comment has also been caused by the fact that Prince Ernest fought in the German army in World War II and was thus, if British, technically guilty of treason.
page 53 note 1 Had Britain possessed the so-called Salic law of male succession, Prince Ernest would to-day be King of England. On the death of William IV in 1837, the British crown went to his niece, Queen Victoria, but that of Hanover, following the Salic rule, went to the nearest male heir, the Duke of Cumberland, great-great-grandfather of Prince Ernest. Cp. the separation of Holland and Luxemburg for the same reason in 1890.
page 53 note 2 By the Act of Settlement, 1700 (which regulates succession to the British throne) Roman Catholic heirs – or even those married to Roman Catholics – forfeit their succession rights and the Crown would pass to the next protestant heir.
page 53 note 3 This figure is perhaps exaggerated, as it is suspected that Roman Catholics have been counted (see e.g. the Attorney-General's mention of Spanish and Belgian royalties in argument, The Times, 17th Feb. 1955Google Scholar). On the other hand, all the issue of Sophia must be counted – not merely ‘royal’ issue. Thus the offspring of the German morganatic marriages are clearly within the terms of the Act. It is suspected that they may not have been counted in the 400.
page 53 note 4 “It is just and highly reasonable, that they, in your Majesty's lifetime.… should be naturalized.” But such reference to the Preamble when the Act itself is clear is contrary to authority. (See e.g. Powell v. Kempton Park Racecourse Co. [1899] A.C. 143, at pp. 157 and 184–85).Google Scholar
page 53 note 5 Although the Separation of Powers is not formally a feature of the British constitution the judges naturally resist the temptation to perform legislative functions, which is what a very free “interpretation” may in effect amount to.
page 54 note 1 This was in fact done, by the British Nationality Act, 1948 (4th Schedule), but the rights of all persons living in 1948 were carefully safeguarded. The effect of the repeal is thus that a baby born in 1949 or later does not have British nationality under the 1705 Act. H.R.H. Princess Marijke is thus British, but no later-born Dutch royalties will be.
page 54 note 2 It had been forgotten in official circles. Thus e.g. the Duke of Edinburgh, born Greek, was naturalised before his engagement to the British Queen. This is now proved to have been quite unnecessary, as he was already British by the 1705 Act. But the present writer had twice drawn attention to the effect of the Act. (Modern Law Review, 1951, 62Google Scholar; Journal of the Society of Public Teachers of Law, 1953, 129).Google Scholar
page 54 note 3 They are several times over descended from Sophia. Thus Queen Emma, mother of Princess Wilhelmina, was daughter of Helena Princess of Waldeck-Pyrmont (1831–1888), daughter of Paulina, Duchess of Nassau (1810–1856), daughter of Prince Paul of Wûrttemberg (1785–1852), son of Queen Charlotte of Württemberg (1764–1788), daughter of Princess Augusta, Duchess of Brunswick-Wolfenbüttel (1737–1813), daughter of Frederick, Prince of Wales, son of George II, son of George I, son of Sophia. Another descent is through Anne, wife of William IV, Prince of Orange, others through King William I's mother and wife.
page 55 note 1 Sophia's mother was the celebrated beauty Elizabeth, Queen of Bohemia, daughter of James I of England, VI of Scotland. Though Sophia was the youngest of a large family, and there was living issue of Charles I (son of James I), she was the nearest protestant to the throne and so was made heir in the event of Queen Anne's dying without surviving children, as in fact occurred. Had William III, during whose reign Holland and England were linked by a personal union, had issue, it would have reigned in preference to Anne and Sophia's issue. Dutch-English relations would no doubt have been very different in that case.
page 55 note 2 Because his mother, Queen Maud, was a daughter of Edward VII. He is thus the nearest “foreigner” to the British throne.
page 55 note 3 The Roman Catholic royal families have also a chance of a second passport — that of the Sovereign Order of Malta. It has been used with good effect on several occasions arrising out of Wold War II (see my article, The Sovereign Order of Malta in International Law, Int. and Comp. Law Quart. 1954, 217–234).Google Scholar
page 55 note 5 The Zamora [1916] 2 A.C. 77.Google Scholar
page 55 note 4 E.g. Mr. Dermot Morrah, Letter to The Times, 18 11 1955.Google Scholar
page 55 note 6 12 Geo. III, c. 11.
page 56 note 1 I.e. as opposed to mere matters of form, which are governed by the lexloci.
page 56 note 2 Dicey, , The Conflict of Laws (6th ed.), Rule 168, p. 758Google Scholar; see also pp. 777 and 778, n. 47.
page 56 note 3 In my view the Act does not apply to any living persons, all—including e.g. H.R.H. Princess Margaret — being within the excepting words (for detailed arguments see my article, Modern Law Review, 1951, 53–63.Google Scholar The view has been accepted in academic, but not yet in official, circles). On any argument the Dutch royal family must be exempt, as they are descended from the marriage of Sophia's daughter Sophia Charlotte (1668–1706), wife of Frederick I of Prussia: a clearly “foreign” family. The descent is through the ladies mentioned at the end of note (3), p. 54 supra, both of whom were Prussian princesses.