6 Broader Implications
King and king?
We began with the observation that converting to absolute primogeniture would have far-reaching implications beyond the immediate issue of the succession of the crown. This point was made in January 2011 on the Royal Universe website:
‘There’s some concern that raising these issues might have unintended consequences – that some of the Commonwealth countries might decide that it was a good opportunity to ditch the monarchy altogether and become republics, or that gender equality should extend to inheritance of peerages as well as the line of succession to the throne. If girls have equal rights to succeed to the throne, would they also have equal rights to share their titles with their husbands and make them king consort rather than prince consort? Would the husbands and children of princesses become HRHs themselves?’ 47
This is a valid question. Mary of Orange would only consent to come to England if her husband ruled as king alongside her. Under the proposed changes to the rules of succession it would clearly be ‘unfair’ and ‘discriminatory’ for the husband of any queen succeeding under them not to be king. But in that case, would he continue to reign if his wife predeceased him, as William of Orange did?
Similarly, if this or any future government were to change the definition of marriage so that homosexuals could ‘marry’, the homosexual propaganda book for children, King and King, could become a reality. Why could we not have two kings, or two queens? And then, given the way surrogacy and registration law are changing, why could not the two kings, or two queens, insist that a child of just one of them coupled with a complete stranger be recognised as their joint heir?
In July 2012 Oliver Colville MP presented a Ten-Minute Rule Bill calling for the partners of gay peers and knights and the husbands of peeresses and dames to be given titles. The proposed changes to the laws on marriage and the succession can be expected to open ever more exotic cans of worms.
Weakening the Common Law
A change in the succession laws could also weaken the integrity of the common law from which the British Constitution derives its legitimacy. Up until October 2011, when the media first began to realize just how complex a process it would be to amend all the necessary laws, critics of male-primogeniture tended to speak about it as being a simple matter of getting the Commonwealth realms to agree to amend the Act of Settlement. What they failed to acknowledge was that the Act of Settlement was only legal in the first place because it was rooted in English common law stretching back hundreds of years. Any change to the laws on male primogeniture would involve not simply overturning specific acts of legislation, but overturning centuries of common law.
William Blackstone warned against such innovations back in the 1760s when he wrote his Commentaries on the Laws of England. Blackstone rightly understood that statutes are peripheral to common law and derive their legitimacy by conformity to it and not the other way round. For this very reason, Blackstone cautioned against overturning precedents to suit the latest fads of judicial opinion:
‘For it is an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments.’
Although Blackstone 48 was talking specifically about judicial decisions, the same principle applies to legislative decisions. When faced with an issue such as male primogeniture, our lawmakers have a duty to look beyond their private sentiments to what has been established through precedents over hundreds of years. Failure to do so can put spanners in the works of the entire UK constitution.
This does not mean that the common law is static or can never change. One of the strengths of the British constitution is that it has always been dynamic and can be legitimately adjusted where and when necessary. However, such adjustments must necessarily arrive as the result of sound reasons consistent with the pre-existing principles of our common law, including the pivotal role that God’s laws play in our constitutional framework (q.v.). This is a point that has been consistently overlooked by David Cameron and Nick Clegg.
There must be some among the proponents of change who are perfectly aware that the idea of there being an hereditary head of state at all flies directly in the face of the egalitarian rhetoric characteristic of our age. 49 The United Nation’s Human Rights Council has already urged the British government to hold a referendum on the future of the monarchy. 50 What is being sold as a genuine and good-hearted move modernising the monarchy could be sending it to its death – its very existence is about as un-PC as one can get.
All sorts of things could happen. For example, if the Duke and Duchess of Cambridge did have a daughter first, her younger brother could easily complain that the monarchy had been stolen from him by this change in the succession rules. If he were personable enough, and whether or not his lawyers were able to find a procedural loophole from the time of the changes, it is conceivable that he could attract a significant party around his point of view, so destabilising the monarchy and the nation.
Human imagination fails, and unintended consequences are rarely foreseen. But we can be sure they will come.
Implications for peerages
There is concern that changing the succession laws may result in gender equality being forced on the inheritance of peerages. 51 Although succession of hereditary titles forms no part of any proposed change, both peers and the media have nevertheless seen the connection. 52 This is especially true since the heir to the throne succeeds to a number of peerages. If male primogeniture is changed, then will succession in the dukedoms, earldoms and baronetcies attached to the throne devolve to the eldest child, or will there be a two-tier system whereby the titles to which the throne is attached will still devolve to the eldest male?
Hereditary peerages are created by writ, by Act of Parliament, by charter, or by letters patent. 53 The rules governing the order of succession of future heirs are specified in the original grant for the peerage in question. With few exceptions, the letters patent transmit titles only to male offspring, a system known as ‘tail male.’ As Halsbury states:
‘Letters patent creating a peerage must specify the patentee, the name of the dignity and its limitation to future heirs of the patentee. The limitation must be one known to the law. The rule in England is a limitation to heirs male of the body with an occasional addition of special remainders to bring in the daughters and their issue, brothers, nephews and collaterals, but ultimately the descent is always fixed in an heir male line.’ 54
This ‘limitation to heirs male of the body’ for the succession of peerages can result in peerages becoming extinct. As Regency Researcher Nancy Mayer has explained,
‘The descent of most hereditary English peerages is determined by the patent by which the peerage was created. Except in very rare cases, the patents say that the peerage should descend to heirs male of the body of the one for whom it was created. That means that ordinarily the peerage becomes extinct if the first earl, for instance, doesn’t have a son. Once in a while patent will let a brother or a nephew inherit if the man does not have a son. When Admiral Lord Nelson died without a son, his patent allowed his brother to inherit. On the other hand, and much more typical, was what happened to Admiral Lord Collingswood’s peerage. It became extinct on his death because he had only daughters.’ 55
In the event that a statute were to change the presumption of male descent with respect to the Crown, it would only be a matter of time before the eldest daughter of a peer challenged original letters patent on the grounds that these too are unfair and out of step with the rules governing the throne. Of course they are already ‘out of step’, since the throne may be inherited by a daughter, but such a challenge would be much harder to resist by an aggrieved younger son once male primogeniture had been abandoned with respect to the monarchy. 56
Under the current system a peerage may become extinct in the absence of male heirs or it may move to another branch of the family. 57 While this may seem undesirable, the alternative is that this inheritance passes out of the family completely. Whatever one may say of such a system, and we should rather the succession of peerages followed the biblical manner of the succession to the crown, at least it is well-understood.
A change in the order of succession does not just affect the Monarchy, but could have effects on every aristocratic title in the land.
Implications for ordinary families
A change in the order of succession could have consequences even closer to the home of every family in the land. If ‘both sexes ought to have an equal chance at the crown’ in the simplistic language of the proponents of change, the next step can only be to cede ground to those who maintain that an ‘equal rights’ society should not presume to bestow on children the surname of their father rather than that of their mother. If men and women are really to be treated equally in every respect – which is the subtext of almost all the arguments for absolute primogeniture – then why should children bear their father’s surname and why should women take their husband’s name? When David Cameron married Samantha Sheffield, why did he not become David Sheffield?
Some feminists pursuing the end to regal male primogeniture could have greater targets in their sights. Changing the rules of succession could easily allow them to undermine Christian principles of inheritance underpinning all our lives. Wives would keep their father’s name rather than adopt their husband’s, children could take whichever name they wanted and a free-for-all with endless bickering and the further disparagement of the role of the husband and father would result.
Although the Commonwealth Realms have agreed to end male primogeniture in principle, the Government should address the questions we and others have raised concerning their proposal in advance of the publication of legislation.
7 Conclusion
We have defined male primogeniture in terms of the succession to the British crown and seen that sixteen Commonwealth realms need to agree to any change. We have seen that the UK government want to stifle debate and are trying to give the impression that a change to the rules has already happened.
We have looked at common law and the British Constitution and key statutes regulating succession, observing that constitutional lawyers are in a quagmire trying to determine the extent of legal changes necessary to effect a change. We have examined the four main arguments for change and found them wanting. In turn, we dismissed chronological snobbery, claims that the public were crying out for a change, arguments alleging sexism and the peculiar claim that queens rule better than kings.
We have examined the Scriptures, in the light of the fact that from the time when Edgar was crowned king of all England at Bath on 11th May 973, every monarch of England has taken an oath to safeguard the laws of God, and has been anointed in the manner of King Solomon, and consecrated to the service of Almighty God.
We saw that Her Majesty was given the Holy Bible as the rule for her ‘whole life and government.’ We have seen that a key passage of Scripture governs the inheritance of property such as the crown if a man die without male issue, and we found that daughters may inherit in that case. We argued that Her Majesty’s successors could not expect to enjoy the same legitimacy as her if the rules of succession were sought anywhere else than in the Bible she was given.
Our discussion of the Biblical evidences began by looking at the way the Genesis creation narrative undermines an egalitarian view of gender prevalent among those who oppose male primogeniture. We went on to explore the significance of male primogeniture in ancient Israel and the theological significance scripture attaches to the firstborn son. Since opponents of male primogeniture threaten to undermine the common law foundations of the British constitution, we also explored what the book of Proverbs has to say about submitting to the inherited wisdom of our ancestors.
We looked also at broader implications, at whether it would be unfair, after a change of the rules, for the consort of a queen not to be called ‘king’, in the same way that a king’s consort is automatically ‘queen’. And what would happen with a homosexual king or queen if ‘gay marriage’ were in place? If either pairing had a child using a donor, could that child not be considered a legitimate heir?
We also considered the knock-on effects on the succession of peerages, especially as the heir to the throne succeeds to various titles. We observed that a demand from a peer’s elder daughter to succeed to a title over the head of her younger brother could be difficult to resist and that the eldest of the younger sons of both monarch and peers might properly feel aggrieved.
Finally, we looked at the implications for ordinary families, where women take by convention their husband’s name and children are called after the surname of their father. We had earlier examined the Scriptural reasons for this, but now we wondered if feminist proponents of change had larger targets in their sights.
Having concluded that there is nothing inherently wrong in the practice of male primogeniture, we call upon all members of Parliament, as well as the respective governments of all the Commonwealth realms, to take their stand in favour of our ancient custom and practice, against those who are now claiming that the practice is sexist, unjust and unethical and who are demanding change for reasons which we have exposed as superficial.
We see no advantage for the monarchy, in either the short or long term, of changing over a thousand years of common law to enable the eldest child of the monarch to succeed regardless of whether that child is a son or a daughter. There has been no demand for such a change from anyone within the monarchy and there has been no public demand for it either.
The monarchy needs no change to its rules of descent. It is much more in need of a wholehearted recommitment to the promises made at Her Majesty’s Coronation. Nothing less will receive the blessing of Almighty God.
We have something here which is not broken. Not only does it not need changing, it needs not to be changed.
