His Majesty's Declaration of Abdication Act 1936 - Legal Background

Legal Background

The Act was necessary for two main reasons.

  • First, there is no provision in British law for the sovereign to alter his status as sovereign, except through the due process of law. And no law exists in Britain that grants to the sovereign the right to choose, on his own authority, voluntarily to alter the scope or to discontinue the term of his or her reign. A close reading of the text of Edward's abdication letter reveals this. Edward VIII did not, in the Instrument of Abdication, solemnize as an accomplished fact, through the instrument, his departure from the Throne. The instrument is constructed as a statement of intent: firm intent, but only intent, to attain a future, not yet existent, state of ex-King.

Even in death, it is the laws relating to the succession which operate to recognize through the death a "...demise of the Crown...", which triggers the operation of other laws that choose and recognize the enthronement of the successor, whose oaths, consecration, and coronation only consecrate and ratify the operation of the existent laws. Thus, to abdicate the sovereign had first formally to resign (through a proper, signed, written instrument of abdication, that of course was witnessed; and in person); then, Parliament had to enact legislation which recognized, approved of, and ratified the abdication. Then the King, who at that stage was legally still King, had to give his royal assent to the legislation, which then, and only then, became a law of the United Kingdom, and thereby removed the sovereign from the Throne. Under the Act of Settlement 1701, the senior descendant of the Electress Sophia of Hanover is sovereign in England. The Act of Union 1707 confirmed this for Great Britain. Thus the senior descendant of Sophia, who is not excluded by the anti-Catholic provisions of the Act, is automatically sovereign, whether willingly or not. If the sovereign abdicates, an Act of Parliament is required to give it legal effect.

  • Second, the Act ensured that the throne passed to Prince Albert, Duke of York. Any future descendants of Edward VIII would, however, not have a claim to the throne and would not be bound by the Royal Marriages Act 1772.

As soon as King Edward VIII gave his royal assent to this Act (actually delivered orally on his behalf, as is usual, by Lords Commissioners), he was no longer king of the United Kingdom of Great Britain and Northern Ireland. The throne immediately passed to Prince Albert, who was proclaimed George VI the next day at St. James's Palace, London.

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