British Monarch Abdication Question

Factual Questions
1

I was reading the FAQ of alt.talk.royalty (available here). At the place I linked to, there is a question asking “Can the soverign abdicate?” The writer of the FAQ says that the answer is no, the soverign cannot abdicate. Now, of course, many of you are going to ask about Edward VIII. According to the FAQ writer, Parliment, in 1936, actually changed the 1701 Act of Settlement to exclude Edward VIII. Once Parliament passed this change (and Edward agreed to it) he was no longer king.

What the FAQ doesn’t answer is what happens if the soverign just walks off the job. It does state that s/he’d be acting in defiance of Parliament. However, Parliament cannot pass legislation without the tacit approval of the monarch.

So, assume the monarch decided s/he didn’t like the monarchy, just walked off the job and refuses to allow legislation to pass Parliament to bypass him/her. Does Parliment have him/her locked up? What other steps could Parliament take? Could they name a regent? Presumably, when an infant acquires the throne, or when the monarch is incapacitated, s/he does not give assent to legislation naming a regent. Could Parliament consider the monarch “incapacitated” and name a regent until the actual monarch comes to his/her senses or dies?

Zev Steinhardt

2

My WAG would be that a regent would be appointed. The argument would probably follow along the same lines as when regents were appointed for monarchs who were deemed of diminished capacity.
You could try your luck at the British Monarchy official page here

3

zev, there was a discussion that touched on this point a while ago: Can the King of England abolish the monarchy?

Akatsukami took the position that the monarch can’t abdicate unilaterally; I expressed some doubts.

I checked the site you linked to. I think that the paragraph blurs two imporatant concepts: succession to the throne, and the ability to leave the throne voluntarily. There is no doubt that succession is automatic - as a matter of law, it goes to the surviving hereditary successor of Electress Sophia, pursuant to the Act of Settlement. However, stating that the succcession is automatic does not answer the second question: can the monarch abdicate voluntarily, upon succession or afterwards?

There is no doubt that Edward VIII abdicated by means of consenting to His Majesty’s Declaration of Abdication Act, which gave legal effect to his expressed intention to abdicate. However, that still leaves a question: just because Edward VIII chose to follow that route, does that mean that there is no other legally effective way for the monarch to abdicate? After all, as the site you linked to indicated, Edward was a good constitutional monarch, who wanted to get off the throne with as little disruption to the constitution as possible. As well, the Act made consequential amendments to the law in other areas, such as the Royal Marriages Act and clarifying that Edward’s issue, if any, would not be in the line of succession, as well as indicating that the change of succession had the consent of the other Commonwealth monarchies, as required by the Statute of Westminster. The need for clarifying these legal points could be an equally valid explanation why Edward and Parliament took the approach they did.

It’s useful to look at the other example of an abdication, the “deemed” abdication of James II/VII, in 1688-89. James fled the country after William of Orange landed. Subsequently, the Convention Parliament deemed James to have abdicated, by fleeing the country and refusing to exercise his royal duties: Bill of Rights. That Parliament then offered the throne to William and Mary, who became joint monarchs.

There is a conceptual difficulty here: the Convention Parliament was not summoned by James II, since he was out of the country. So where did it get its authority? The Bill of Rights adopted Locke’s political theory of the compact between the people and the sovereign. Since James had abandoned his duties, he had broken the compact, and the people’s representatives were free to seek a new monarch, which they found in the persons of William and Mary. After Parliament offered the throne to William and Mary, and they accepted, the monarchs then gave royal assent to the Bill of Rights.

The change in the succession here only makes sense if you accept that James II, by refusing to fulfill his duties, had effectively abdicated, even if he had not intended that result. Parliament simply recognized the abdication after the fact. Unlike Edward VIII, who consented to the Abdication Act, James II never gave royal assent to a bill stripping him of his throne. And the Bill of Rights only makes sense if the throne was already vacant, as the Bill itself declares. And since the two Houses of Parliament do not have any law-making authority without the assent of the Crown (Parliament is composed of the Commons, Lords, and the Crown), the only conclusion, in law, is that James ceased to be king by his own actions. (Note: you may well reach a different analysis of the Convention Parliament’s politicalauthority, as a matter of *realpolitick,*but I’m speaking of the legal analysis.)

In summary, if the throne was vacant, as the Bill of Rights declares, it was because of James’s own actions. If so, why cannot a monarch voluntarily abdicate?

With respect to Yankee Blue’s suggestion of a regency, that would only provide an interim relief. Under the *Regency Act 1937,*a regent can be appointed when the monarch is under 18, or mentally or physically incapacitated, or for some definite cause not available for the performance of the royal duties. Assuming a refusal to act comes within the latter category, a regent could be appointed. The regent is normally the person next in line to the throne.

However, there is a significant limitation on the powers of the regent: a regent cannot give royal assent to a bill changing the royal succession: *Regency Act 1937,*s. 4. So if Charles, for instance, upon succession refuses to exercise his duties because he wants to abdicate and marry Camilla, Prince William could be named Regent. However, Prince William could not give his assent to the “Abidication of Charles Act” - only Charles could do so. If Charles refused, saying that he had already abdicated and was no longer king, it seems to me that Parliament would have two choices: a) wait for Charles to die, and keep William as Regent until then; b) follow the precedent of the Convention Parliament, and declare that Charles had abdicated the throne, and offer it to William. However, the latter approach only makes sense if Charles has the power to abdicate the throne without the consent of Parliament.

I appreciate that this is a murky area, and would certainly welcome hearing from anyone else who may have some thoughts on it, like APB or *Akatsukami.c

4

This question shows just how difficult it is working without a written constitution.

What would happen in this situation is what has happened before as outlined so well above- we would make it up as we went along and then claim that this was the ‘convention’. If the people accepted it, all so well and good. If the people didn’t, then they would be in conflict with Parliament (who are supreme) and there would be a civil war or at least a major political crisis.

As is detailed above, we have what amounts to an elective monarchy, confined by convention. Therefore there is no strictly correct answer, only what could be satisfactorily justified in retrospect.

And when it comes down to it, who really cares. One more crisis like those above, occurring in modern times, would probably result in the dumping of the monarchy. Not a moment too soon some would say!

5

By the way, zev, with your interest in things monarchical and Sophia, Electress of Hanover, you may wish to check out the Vicar of Bray.

6

Far from revealing the problems of having no written constitution, abdications have often shown Parliament at its creative best in sidestepping potential legal difficulties. The documents which provide the relevant precedents usually fudge the big questions. The same is likely to be true of any future abdication.

The case of Edward VIII is the most straight-forward. IIRC, the Government proceeded on the assumption that a statute was required, just to be on the safe side. As Parliament was willing to accept the king’s wishes, its passage did not cause major problems. My own reading of the Declaration of Abdication is that it simply declares Edward’s wish to abdicate and that that wish was subsequently effected by the Statute of Abdication, but I’m happy to acknowledge that other interpretations are possible. This is the solution likely to be followed in the event of future abdications when it is the monarch’s own desire to abdicate which has created the problem.

The case of James II is rather more complicated. The 1689 Convention acted on the assumption that James had just walked off the job. However, the text of the Declaration of Rights is famously ambiguous about the status of that ‘abdication’. The Declaration lists a series of means by which he had supposedly tried ‘to subvert and extirpate the protestant religion, and the laws and liberties of this kingdom’ and then proceeds to declare that he had ‘abdicated the government’ without making clear whether the latter was a consequence of the former. This is not so much bad draftsmanship as a political fudge to win over those members of the Convention who were reluctant to overturn the hereditary succession. The more radical members of the Convention did want to believe that Parliament had the right to remove tyrannical kings and that James was being punished for his acts of tyranny. They also believed that Parliament had the right to make anyone they wished monarch. (Whether they could have been influenced by Locke remains a controversial question, not least because the ‘Two Treatises’ had not yet been published in print.) The more moderate members refused to accept that Parliament had such powers and so preferred to believe that James’s flight could be interpreted as a wish to abdicate. The supplementary question was whether the throne was therefore ‘vacant’. Even if it was accepted that James had indeed abdicated, that still left the laws of succession and, on that basis, James’s ‘son’, the Prince of Wales, ought to have automatically inherited the throne. Even if it was then decided that the Prince of Wales was not James’s son (as many believed), the next in line was Princess Mary. It was this which caused the greatest difficulties during the passage of the Declaration. Agreement that William and Mary should become joint sovereigns was a further fudge to get round this. The result of all this was that both sides could read the Declaration as they wished and so could subsequent generations of lawyers. The Declaration has no single ‘correct’ interpretation and never did have.

What it does do, as jti points out, is to assume that James had already abdicated. Without the other ambiguities in the text, this would be strong evidence that a monarch could abdicate without the consent of Parliament. Given that the other ambiguities are present, it is unlikely that any future monarch wishing to abdicate would try to rely only on this precedent. You can begin to see why it was thought better to legislate in 1936.

The status of the 1689 Convention also defies simple legal analysis. There was however an excellent precedent in the form of the Convention summoned in 1660 which had then agreed to restore Charles II. In both cases these were assemblies identical to a Parliament except for the fact that the writs of summons had not been issued in the name of a monarch. What they could claim was the same moral authority a Parliament would have done. In times of crisis this was what really mattered. Both were then raised to the status of a full Parliament by retrospective legislation with the consent of the monarchs they had installed in power. In 1689 the Declaration of Rights was then enacted as the Bill of Rights.

‘Can the sovereign abdicate?’ Most authorities would say yes, but the real question posed by the FAQ is ‘Can the sovereign abdicate without the consent of Parliament?’, to which the answer is ‘Possibly’, which is why Parliament’s consent would almost certainly be sought.

7

APB, I take your point about the publication date of the Two Treatises, but I have assumed that Locke’s ideas were influential on the Bill of Rights, in part because of Locke’s association with Prince William. For example, as summarised in Chambers Biographical Dictionary:

Since Locke was associated in Holland with William’s English supporters, I think it’s a fair inference that his views on the social contract would be known to others in that party, especially given the resemblance between his views and the approach taken in the Bill of Rights. As you point out, the Bill does not expressly state what was the triggering point for James’ abdication, but the long list of his offences against the Constitution suggests that he had broken the social contract, and therefore the Convention Parliament was free to choose new monarchs.

8

jti writes:

Why, thank you very much.

I will agree with what seems to be APB’s analysis of the abdication of Edward VIII: viz., it being deemed best to cross the “t”'s and dot the “i”'s, and the desires of all parties (except perhaps Wallis Simpson) being the same, a statute was enacted to leave no questions in the minds of future generations that Edward VIII had really abdicated, and that his issue (had he had any) was really not in the line of succession. I will state that, even if we theorize that up until that point that the monarch could abdicate of his own prerogative, the Act of Abdication established the precedent that he could no longer.

The case of James II is different, although in my opinion not, perhaps, primarily for the reasons that APB sets forth. We must remember that James II’s soi disant abdication was prior to the Act of Succession. Even if we assume that Parliament had authority ab origine to legislate in this area, it did not, and the prerogative of the monarch must be assumed to be regulated by ancient custom.

Now, no English monarch had ever abdicated freely, but Edward II and Richard II had abdicated (as an alternative to an immediate appointment with the headsman), and had done so of their own prerogative (although an “estates of the realm” – very like the Convention Parliament – had transmitted Mortimer’s not-very-veiled threats, accepted Edward II’s abdication, and recognized Edward III, and a Parliament called by Richard II did the same vis-a-vis himself and Lancaster). We must suppose, therefore, that, certainly before the Act of Succession, a monarch could abdicate of his own will and prerogative (whether James II did or not is, as APB says, a matter of what spin you, your lawyers, and your armed retainers want to put on events). After the Act of Abdication, the evidence is strongly in favor of the assumption that he can no longer. Between 1701 and 1936, we have a gray area where the question never arose, and so was never settled.

9

It is debatable whether the 1936 Act of Abdication creates a presumption that any future abdication would require enactment by statute. An alternative view would be that the only precedent established by it is that an abdication can be enacted by that means.

Before 1701 the usual (but not universal) assumption was that a right of abdication did exist. Whether the Act of Settlement removed that right is a matter for interpretation on which no court has ever ruled. Although this is not a consideration which would count if a court was ever asked to do so, it should be said that this was probably not the intention of Parliament in 1701. I don’t think it was an issue discussed at the time. I also suspect that the suggestion that the right had been removed is a relatively modern one.

Most historians would now play down Locke’s influence over the constitutional settlement of 1689. That Locke had friends who were associated with William of Orange is not in doubt and that some of them may have read the ‘Two Treatises’ in manuscript is certainly possible. The problem is that there was well-established tradition of contractual theory which dated far back into the Middle Ages. Part of the attraction of such ideas was that they seemed old-fashioned. One therefore does not need to assume a role for Locke to recognise that those ideas influenced one strand within the 1689 settlement. Locke’s importance was rather that he provided an elegent philosophical variation on those ideas which was used by later generations to provide a retrospective justification for the Revolution.