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The primogeniture paradox: the posthumous heir

An alternative to the popular election is the hereditary principle, which in the case of the British monarchy is governed by the rules of primogeniture. Primogeniture is nothing more than an algorithm for inheritance where the eldest child has the sole right of succession. It is a real alternative to a popular election when you don’t want human intervention in the political process or more precisely when you want to keep politics out of the process. The guarantee of continuity is an advantage because the throne is never vacant, and it leaves no doubt who is next in line to the throne or does it?

Victoria Privy Council (Wilke)

Primogeniture is governed by the common law, but governments, for better or for worse, have sought to interject statute legislation to alter the process. When Parliament passed the Regency Act 1830 to permit the Duchess of Kent and Strathearn to rule in Princess Victoria’s name while she was a minor, it sought to establish a far more dangerous precedent regarding succession to the throne. On June 20, 1837, the wording of Queen Victoria’s accession proclamation had a curious abnormality, courtesy of section two of the Regency Act,

“…the Imperial Crown of the United Kingdom of Great Britain and Ireland is solely and rightfully come to the high and mighty Princess Alexandrina Victoria, saving the rights of any issue of his late Majesty King William IV, which may be born of his late Majesty’s consort…”

In plain English, this means that according to the Act of Parliament, Victoria could be Queen on a temporary basis. Upon the birth of William IV’s hypothetical child, the child would immediately succeed to the throne as Queen Victoria’s heir. That’s nothing more than statutorily mandated abdication!

It is unthinkable to the British people that a Sovereign’s birthright could be legally usurped by an unborn child; however, the position of any heir presumptive is not set in stone, even after they inherit the Crown! As is typical when a new monarch comes to the throne, the Privy Council Office almost immediately begins preparing for the next accession.

When Prince Albert, Duke of York became King George VI in 1936, the Parliamentary Counsel began collaborating with the Home Office on drafting Princess Elizabeth’s future accession proclamation. The anomalous wording used in Queen Victoria’s accession proclamation astounded the lawyers. Sir J. Granville Ram wrote, “This seems to me most unfortunate… I think it would be well to put the point to the Law Officers in the hope that they will advise that this bad precedent should not be followed in future proclamations.”

Sir O. F. Dowson also wrote, “The precedent is certainly an awkward one, but I agree with Ram’s view that it is a bad precedent – bad that is in the sense that it seems to presuppose an established principle that the posthumous male child of a deceased Sovereign would oust the actual successor to the Throne if such child would have succeeded if he had been born before the demise.”

There were a few reasons why Parliament decided to do this. Firstly, in 1830, nine months was a long time for a 65-year-old childless monarch, such as William IV. Parliament had to have a contingency in place for a posthumous heir. The United Kingdom had no precedent since the Norman Conquest for dealing with this type of succession crisis. In 1316, France was under a regency during a 163-day interregnum between the death of King Louis X and the birth of his son, King John I. This scenario is not possible in the UK. A regent must rule in the name of a monarch. Otherwise, you would have a republic. Furthermore, two English kings, Henry VII, and William III were posthumous children themselves; however, since their fathers did not die while occupying the English throne, the issue never arose.

Secondly, Parliament assumed that waiting for the posthumous child to be born to proclaim him/her Sovereign would be denying the heiress presumptive her lawful right of succession. Thirdly, the laws for inheriting real estate were used as an analogy for inheriting the Crown. Accordingly, an heir could not take possession of the Realm en ventre sa mère (in the mother’s womb). This reasoning is based on Lord Chancellor Lyndhurst’s interpretation of feudal tenure laws. They state that an unborn child cannot be “seized of” (take possession of) the land, and thus the living heir presumptive would, by default, have priority until the birth of the heir apparent. Nevertheless, even in 1937, the opinion of the Treasury Solicitor’s Office concurred with Lord Chancellor Lyndhurst’s legal reasoning, upon which the Regency Act of 1830’s provisions relating to a posthumous heir were based.

The question is, as far as inheritance, whether a child has the right to succeed to the throne before birth, if at all. Let’s do some thought experiments. Keeping in mind that the throne can never be vacant, even for a moment, what should happen? There are three options.

1. Devolve the Crown to the child in utero.

The question of whether an unborn child is alive or not alive is irrelevant. The Crown can treat a living person as if they were deceased. Take for instance, a monarch’s Catholic child. The child is considered “naturally dead” from the moment of its first communion with the catholic church. A catholic has no right to inherit the Crown as per the Act of Settlement 1701. Conversely, the Crown can also treat the non-living as if they were alive. Coincidently, the last time this happened was upon the accession of Queen Victoria in 1837. The Crown indirectly passed from King William IV to Prince Edward, Duke of Kent and Strathearn, then directly to Princess Victoria. This implies that everyone in the royal line of succession keeps their place, even after death; consequently, you can suppose that Prince Edward’s reign was zero seconds long. This legal fiction is what allows primogeniture to operate so if someone above you in the line of succession dies, you aren’t cut off.

Here is the problem with this option: when does the unborn child become entitled to inheritance rights? At conception? Sentience? Birth? This is an issue commonly seen in the abortion debate. If birth is the earliest time one can be seized by the Crown, then this option is null, and we move on. If the right is established before birth, then are we to choose an arbitrary, meaningless, humanly-defined point in time? Even worse, what if we assume that the unborn child is entitled to inheritance rights at the moment of conception? That’s even more difficult because it can take anywhere from 10-15 days after conception for hormone levels in the woman to become high enough to detect. The throne cannot be vacant for any period of time, let alone two weeks, in order to rule out the possibility of a posthumous child. Furthermore, 25-35% of all pregnancies self-terminate in the first trimester; the majority of which happen before the woman knows she’s even pregnant. Are we to have a slew of embryonic monarchs in future history books?

2. Devolve the Crown directly and permanently to the living heir presumptive.

A set of identical twins is conceived at the exact same time, but precedent dictates that the first child to exit the womb takes priority in inheritance. By that logic, the unborn child does not enter the line of succession until the moment of birth, and is unable to be seized by the Crown beforehand. Another way to think of it is that a posthumous child has “missed the train” because by the time it is born, the Crown has already been passed to the next living heir. Same principal with twins: you snooze, you lose! This assumes that the seizure of the Crown is permanent and lifelong. The only downside to this option is that it possibly denies the posthumous child of a potentially stronger claim to the throne, but is it worth dethroning an undoubted, lawfully reigning Sovereign?

3. A hybrid of options one and two. The Crown is devolved to the living heir presumptive, subject to the right of the posthumous child to oust the Sovereign off the throne upon its own birth. This is the currently accepted option in the United Kindgom.

Consider the constitutional implications of having a statutorily usurped Monarch still alive. It happened with Stephen and Matilda, Richard II and Henry IV, Henry VI and Edward IV, Jane and Mary I, James II and William III. The Regency Act 1830 could have sparked another succession war between supporters of William IV’s posthumous child and Victoria. In theory, primogeniture is as objective as a computer program and should negate all issues of rival claims to the throne. The system is not designed to be messed with by man-made statutes or interpretations, but in cases of posthumous births, it is unavoidable. The Act of Settlement 1701 sparked the Jacobite Succession crises, which continued well into the reign of King George II. The Succession to the Crown Act 2013 will establish precedents which will have far-reaching consequences for the hereditary peerages. The abdication of King Edward VIII had serious constitutional ramifications, and he never returned to Great Britain after the ordeal. Consider the religious implications of having an anointed monarch supplanted by a posthumous heir. Divine Right theory goes right out the window, along with all its political legitimacy, with the third option. You cannot un-anoint the Sovereign. That act is irreversible, and confers a spiritual significance that resides for the entire life of the individual.

The Commonwealth’s switch from male-preference primogeniture to absolute primogeniture will reduce the chances of a question of succession arising due to posthumous birth. In absolute primogeniture, later-born male children cannot displace elder daughters in the line of succession. The next available opportunity for the United Kingdom to deal with such a rare constitutional crisis would probably be during the future reign of Prince George of Cambridge. If a demise of the Crown occurs while he is expecting his first child, then his heiress presumptive, Princess Charlotte of Cambridge may become a future caretaker Queen regnant unless Parliament legislates otherwise. What would you do?

Photo Credit: David Wilkie [Public domain], via Wikimedia Commons