ANN LYON

A REACTION TO POPULAR HYSTERIA: THE TITLES DEPRIVATION ACT 1917

ABSTRACT. The Titles Deprivation Act represents the ‘other side of the coin’ of King George V’s decision in 1917 to divest the Royal Family of its appearance of German-ness and adopt an outward Englishness by renouncing the German titles of its members and adopting the surname of Windsor. The Act created a mechanism by which German holders of British royal titles and peerages could be deprived of those honours on grounds which had no precedent in earlier law and practice, this mechanism being used for the first and only time in an Order in Council of 28th March 1919 to deprive three German princes and one Austrian, two of them first cousins of George V and a third an uncle by marriage, of the British titles which they held. This paper considers, first, the background to the Act and, in particular, the reason why legislation on this highly controversial issue was introduced in Parliament only after the First World War had been going on for two-and-a-half years. It identifies the reason for this delay as the reluctance of the Asquith Government to involve the King as the ‘fountain of honour’ with a course of action which he personally considered to be petty and undignified and of no importance to the war effort, and hypothesises that the Government’s change of heart resulted from the trial and execution of Roger Casement for treason, with which there is an exact coincidence in time. Second, the paper considers the manner in which the Bill was drafted, identifies its distinctive features and follows its passage through Parliament. Third, it considers the manner in which the provisions of the Act were put into effect, in particular the manner in which evidence was gathered to create a case against the persons affected by it. KEY WORDS: Englishness, royal family, Titles Deprivation Act, treason

I NTRODUCTION This paper marks an early stage in what is intended to be a larger study of legal issues affecting the British Royal Family and Government and their relations with Germany and Germans during the First World War and its immediate aftermath. The Titles Deprivation Act was only one of a number of mechanisms which attempted to separate the Royal Family from its ties with Germany and to give it an appearance of unambiguous Englishness. Indeed, this can be seen as the most critical occasion on which the British monarchy ‘reinvented itself’ in order to conform with contemporary mores. Liverpool Law Review 22: 173–203, 2000. © 2001 Kluwer Academic Publishers. Printed in the Netherlands.

174

ANN LYON

T HE BACKGROUND TO THE ACT Prior to the outbreak of war, political tensions had existed between Great Britain and the German Empire, largely as a result of the desire of Kaiser Wilhelm II and his government to create a navy sufficiently large and modern to rival the Royal Navy, then at the zenith of its power. However, there was little active hostility among the British people towards Germans and a number of men of German birth or descent occupied prominent positions in public life.1 Germany and Germans were widely admired, not least for the speed and energy with which the many small states had united under the leadership of Prussia and developed into a major world power in the second half of the nineteenth century. Here’s this huge empire, stretching half over central Europe – an empire growing like wildfire, I believe, in people and wealth and everything. They’ve licked the French and the Austrians and are the greatest military power in Europe . . . That Emperor of theirs is a splendid chap, and anyone can see he’s right [to develop German sea power]. . . .2

Once war broke out, however, popular feeling changed abruptly. Britain was seized by an ugly wave of anti-German feeling, manifesting itself in anti-German propaganda, much of it very crude indeed, “spy mania” and attacks, in some cases physical as well as verbal, on Germans and things German in this country. Concern, inspired by the “naval race”, about the possibility of hostile activities on the part of aliens resident in this country had been developing even before the war, and acted as the main impetus for the founding of the Security Service (MI5), responsible for counter-espionage in Great Britain and Ireland, in 1907, as well as the focus for much of its activities. A secret register of aliens was set up in the period 1910–1913, and included the names of some 11,100 Germans and Austrians by August 1914.3 In the same period, there were a number of “spy scares”, revealed by the activities of MI5 and concerned in particular with the passing of 1 The best known were probably Prince Louis of Battenberg, First Sea Lord from 1912,

and father of the future Earl Mountbatten of Burma, and the banker, Sir Ernest Cassel, an intimate of King Edward VII. 2 Erskine Childers, The Riddle of the Sands, 1903 (London: Wordsworth Classics Edition, 1993), p. 80. Ironically, in view of the speaker’s admiration for Germany and its Kaiser, the book, one of the most widely read of its time, is concerned with a German plan for an invasion of Britain from the Friesian Islands and their adjacent coast. Despite the author’s desire to alert his countrymen to potential dangers from Germany, his Germans are in the main sympathetic figures and men of honour, and odium is reserved for a renegade Englishman who has thrown in his lot with the Germans. 3 See A.W.B. Simpson, In the Highest Degree Odious (Oxford: Oxford University Press, 1992), pp. 9–12.

A REACTION TO POPULAR HYSTERIA

175

secret information on naval gunnery matters to Germany.4 On the outbreak of war, the Government acted swiftly to deal with the perceived threat. Twenty-one suspected spies, previously identified by the Security Service, were arrested on 4th August, within hours of the expiry of the British ultimatum to Germany. On the following day, Parliament passed an Alien Registration Act, giving the Home Secretary extensive powers concerning enemy aliens.5 The scale of national panic about “the enemy within” was made clear in a Commons debate on 26th November 1914, during which the Home Secretary, Reginald McKenna, reported to the House that, in the Metropolitan area alone since the outbreak of war, more than 120,000 cases of “suspicion” had been investigated, leading to 342 persons being interned without charge,6 and 6,000 houses had been ransacked.7 Anti-German sentiments grew more pronounced still after the sinking of the Lusitania on 7th May 1915, leading to riots in which 257 people were injured, 107 of them police or special constables but the remainder mainly Germans, and to fresh legislation affecting aliens. On 13th May the Prime Minister, Herbert Asquith, announced in the Commons that all enemy alien males of military age were to be interned, and, unless specified exceptions applied, all other enemy aliens were to be repatriated to their places of origin. Regulation 14B, passed under the Defence of the Realm Act, applied to persons of hostile origins and hostile associations, and so to naturalised former Germans and to natural-born British subjects whose activities had brought them under suspicion. This allowed the Home Secretary to order the internment of such persons without trial, or restrictions on their residence or movements.8 4 Details of the activities of MI5 in this period, and the various “spy scares” can be found in Christopher Andrew, Secret Service: The Making of the British Intelligence Community (London: Heinemann, 1985), pp. 35–85. 5 Nationals of Germany, Austria-Hungary, Bulgaria and, from November 1914, Turkey. The Act gave the Home Secretary power to exclude or deport enemy aliens from the United Kingdom without appeal, to prevent their landing in the United Kingdom, to require them to register with the police, to prohibit their residence in specified areas and to prohibit them from travelling beyond a five-mile radius of their registered residence. 6 Under prerogative powers. Only one of these was actually charged with any offence. See supra n. 3 at 13. 7 Parliamentary Debates, Commons, 5th Series, vol. 68, 390. 8 See supra n. 3 at 2–14. Some 26,500 men of military age were interned as enemy aliens, and a further 9,500 being compulsorily repatriated, the process being largely complete by 22nd November 1915. Simpson adds that Regulation 14B was passed not only in response to fears of a Fifth Column developing among naturalised former Germans, but also in recognition that the evidence of the existence of such a Fifth Column was so lacking as to make it almost impossible for suspects to be convicted through the legal system. Supra n. 3.

176

ANN LYON

Much of the anti-German feeling was focused on the Royal Family and its numerous German connections. It is noticeable too that the calls for “action” to deal with the German links of the Royal Family coincided neatly in time with more general outbreaks of anti-German feeling. However, it seems to have been the wave of popular and political revulsion against Roger Casement, hanged for treason on 3rd August 1916, which led the Government to introduce legislation allowing German and Austrian holders of British titles to be deprived of those titles. A glance at the royal genealogy makes the close family ties of the Royal Family of 1914 with Germany all too clear. The Kaiser was King George V’s first cousin, both being grandsons of Queen Victoria. Queen Mary was descended morganatically from the southern German royal house of Wurttemberg. Indeed, the blood running in the veins of the Royal Family was almost entirely German, the most recent ancestor of George V who can reasonably be called British by blood being Margaret Tudor, daughter of Henry VII and wife of James IV of Scots.9 The Act of Settlement had brought the House of Hanover to the British throne and forbidden marriage with a Roman Catholic. Every monarch, heir to the throne and parent of an heir from George I to Victoria had found a consort in the Protestant princely states of Germany, so that down to Edward VII every British monarch after 1714 had one German parent.10 Up to the outbreak of war the Royal Family had maintained cordial links with their German cousins; the imminent outbreak of war even caught the Kaiser’s brother, Prince Heinrich of Prussia, visiting relations on the Isle of Wight. The Royal

9 Both Margaret’s parents had French grandmothers (Catherine of Valois, widow of Henry V and mother of Edmund Tudor by her liaison with Owen Tudor; and Jacquetta de St Pol, mother of Elizabeth Woodville), but her blood was otherwise mainly English and Welsh. 10 Sophia Dorothea of Celle, wife of George I; Caroline of Ansbach, wife of George II; Augusta of Saxe-Coburg, wife of Frederick, Prince of Wales; Charlotte of MecklenburgStrelitz, wife of George III; Caroline of Brunswick, wife of George IV; Adelaide of SaxeMeiningen, wife of William IV; Victoire of Saxe-Coburg-Saalfeld, wife of Edward, Duke of Kent; Albert of Saxe-Coburg-Gotha, husband of Queen Victoria. All the children of Victoria and Albert, and grandchildren in the male line, were entitled to the style of Duke or Duchess of Saxony and Prince or Princess of Saxe-Coburg-Gotha, and were accorded these titles in the Almanach de Gotha down to 1914 (Sir Albert Woods, Garter King of Arms, to Sir Henry Ponsonby, Private Secretary to Queen Victoria, 2nd January 1884 (RA L1/118)). All material contained in the Royal Archives is used by gracious permission of Her Majesty the Queen, and with thanks for the expert assistance provided by Sheila de Bellaigue, Registrar of the Royal Archives, and her colleagues.

A REACTION TO POPULAR HYSTERIA

177

Family was thus highly vulnerable to accusations of lack of commitment to the war, even of pro-German sentiments.11 An early casualty of the popular anti-German feeling was Prince Louis of Battenberg, a minor member of the Royal Family through his marriage to Princess Victoria of Hesse, a granddaughter of Queen Victoria, who resigned as First Sea Lord on 30th October 1914 after a campaign of vilification in the press and elsewhere directed at his German birth and continued links with Germany. In the same period the King, as titular head of the British Army, was faced with demands that the names of the Kaiser and the German Crown Prince should publicly be expunged from the Army List. The King agreed that their names should be left out of the next edition of both works, although no publicity was to be given to this decision.12 It was also suggested at that time that the Banners of the eight “enemy” Knights of the Garter be removed quietly from St George’s Chapel,13 but the King was “strongly opposed to their removal, at any rate until after the war”.14 11 There is little to give credence to such suggestions, although George V was, on a personal level, reluctant to move against his German relations (see below), and he seems to have attracted criticism from some quarters by including German prisoners in his rounds of patients when visiting military and naval hospitals, and expressing his approval that they were treated in the same way as British patients (e.g. The Times, 16th September 1914; Daily Express, 28th September 1914; Pall Mall Gazette, 2nd December 1914). It might be noted that the Kaiser was at the same time upsetting German sensibilities in a similar manner: “2nd November 1914: Conference this morning . . . Prior to this a discussion with Plessen [Colonel General Hans von Plessen, Orderly General Aide de Camp to the Kaiser] who wished to hear from my lips whether the fact that the Kaiser had talked with English prisoners in the presence of our troops had made a bad impression. I confirmed this, and Plessen promised to mention it to the Kaiser.” Walter Görlitz ed., The Kaiser and his Court: The First World War Diaries of Admiral Georg von Muller (London: Hollis & Laster, 1961), pp. 41–42). 12 The Kaiser was a British Field Marshal and Colonel-in-Chief of the Royal Dragoons, and also an Admiral of the Fleet. The Crown Prince was Colonel-in-Chief of the 11th Hussars. The official correspondence on the question of military and naval ranks is contained in the Royal Archives, RA Geo V Q685/1-11. The “no publicity” policy was so effective that even as late as 5th August 1916 the editor of the xenophobic John Bull assumed that the Kaiser and his relations were still in the Army and Navy Lists. Ibid. at 102. 13 They were the Kaiser, the German Crown Prince, Prince Heinrich of Prussia, Emperor Franz Josef of Austria-Hungary, the King of Wurttemberg, the Grand Duke of Hesse, and the Dukes of Cumberland and Coburg. All except Franz Josef had close ties of blood to the British royal family. 14 Sir D. Dawson, Lord Chamberlain’s Office, to Lord Stamfordham, Private Secretary to King George V, 12th November 1914, with annotations by Stamfordham, 14th November. Supra n. 12 at 13–14.

178

ANN LYON

Early in January 1915, a Mr William H. Johnson wrote to the Daily Mail to inform its readers of the way that “traitor” Knights of the Garter had been dealt with in former times, and suggested that the heraldic achievements of the Kaiser and German Crown Prince be treated in that same manner. Mr Johnson informed readers that the Earl of Northumberland, one of the leaders of the Rising of the North of 1569,15 had been ceremonially degraded from the Order, his Garter Banner, sword, crest and helmet being hurled down from above his stall, and then kicked out of the Chapel and the castle itself.16 Garter King of Arms, Sir Alfred Scott-Gatty considered such “degradation” inappropriate in the case of foreign princes, who were not SubjectKnights of George V, but that if at any time it was wished to remove their heraldic achievements from the Chapel, this could be done without any ceremony but simply under a Warrant issued by the Sovereign.17 Stamfordham, however, made it clear that “the King has no intention of doing anything with regard to the Garters of belligerent Sovereigns and Princes, at all events until the war is over.”18 However, the upsurge in anti-German feeling rising from the sinking of the Lusitania seems to have forced the King’s hand.19 A Daily Chronicle editorial of 11th May 1915 alluded to the degradation of Sir Francis Mitchell from the Order of the Garter in 1621, when “his spurs [were] hacked from his heels, his sword belt cut and his sword broken over his head” and to popular feeling that this treatment was appropriate to the Kaiser if to no other.20 A Mr Arnold White wrote to the Dean of Windsor, Dr Eliot, on 12th May to warn him, . . . that I have reason to believe that an attack will shortly be made upon St George’s Chapel and an effort will be made to remove the eight peccant Banners by physical force . . .21

On the same day as Asquith announced the internment of German males of military age, 13th May 1915, Lord Stamfordham met the Prime Minister, Home Secretary and Attorney General at Downing Street and carefully noted the outcome:22 15 In support of the claim to the English throne of Mary Queen of Scots, then a prisoner in England. 16 Supra n. 12 at 22. 17 Garter to Stamfordham, 5th January 1915. Supra n. 12 at 21. 18 Stamfordham to Garter, 3rd January 1915. Supra n. 12 at 20. 19 Supra n. 12 at 13–53. 20 Supra n. 12 at 27. 21 Supra n. 12 at 33. 22 Supra n. 12 at 28.

A REACTION TO POPULAR HYSTERIA

179

The Prime Minister was of the opinion that circumstances had so materially altered since the outbreak of war that he considered that the decision then come to, that nothing should be done with regard to the ‘belligerent’ members of the Order of the Garter, could no longer be maintained. Public opinion as revealed in the Press and elsewhere was demanding the removal of the Banners of these Knights from St George’s Chapel at Windsor, and this outside pressure would probably increase day by day. Mr Asquith, with the entire concurrence of the two above mentioned Colleagues, accordingly recommended that the King, as Sovereign of the Order of the Garter, should at once give directions that the names of the following eight Knights should be struck off the Roll of the Order, with the natural consequence of the removal of their respective Banners from the Chapel of St George’s, Windsor, thus avoiding the very probable public demand for such removal.

The threat of violent action within St George’s Chapel itself was clearly taken seriously. At the request of the Dean, St George’s Chapel was closed except for services, and the vergers instructed not to answer questions on the matter.23 However, on the King’s express instructions, the stall plates of the eight Knights were to remain in the Chapel, and the Banners were to be “carefully kept until such time as [the King] decides what to do with them”.24 In this climate of intense hostility to all things German, which developed within weeks of the outbreak of war, it appears at first surprising that it took three years of war for George V to divest the Royal Family of its outward appearances of German-ness, by inducing those of his German relations who had thrown in their lot with Britain to renounce their German titles in June 1917, and adopting for himself and his descendants the family name of Windsor in July of the same year. It was only in the same period that Parliament passed the Titles Deprivation Act, which provided the mechanism by which German princes holding British titles could be deprived of those titles, and the Order in Council giving effect to the deprivations was only made after the Armistice.An explanation for this long delay can be found in the personal feeling of the King and those closest to him that the legislative and formal vilification of the King’s German relations was petty, spiteful and undignified, and would not help to win the war.

T HE G ENESIS OF THE T ITLES D EPRIVATION ACT Who were these Foreign Princes and how had they come to be holders of British titles? Action under the Titles Deprivation Act was eventually 23 Supra n. 12 at 41–42. 24 Supra n. 12 at 42.

180

ANN LYON

taken against four persons: the Duke of Cumberland; his son the Duke of Brunswick; the Duke of Albany and Coburg; and the 12th Viscount Taaffe of Corren. Action was proposed, but not pursued, against Prince Albert of Schleswig-Holstein, a grandson of Queen Victoria through his mother.25 Ernst August, 3rd Duke of Cumberland, born in 1845, was the grandson of Queen Victoria’s uncle Ernest, Duke of Cumberland, fifth son of George III, who had succeeded to the throne of Hanover on the death of William IV in 1837 (Salic Law applied in Hanover, so that Victoria could not succeed). The 3rd Duke’s father, the “Blind King” George V of Hanover (1851–1877), had been declared deposed when Prussia annexed Hanover after the Austro-Prussian War of 1866, and the family had lived in exile in Austria, and adopted a strongly anti-Prussian stance up to 1913, when Cumberland’s son, Ernst August, afterwards reigning Duke of Brunswick, born in 1887, brought about a reconciliation in the best romantic fashion by falling in love with and marrying the Kaiser’s only daughter. The Duke of Cumberland was married to Queen Alexandra’s sister, Princess Thyra of Denmark; he was therefore George V’s uncle by marriage, while the Duke of Brunswick was the King’s first cousin. Karl Eduard, Duke of Coburg and Albany, born Charles Edward, Duke of Albany, in 1884, was the posthumous son of Queen Victoria’s haemophiliac youngest son, Leopold, Duke of Albany, and so another first cousin of George V. The Prince Consort’s elder brother, Duke Ernst II of Coburg, died without legitimate issue in 1893. A decision was taken by Queen Victoria, on ministerial advice, that the Prince of Wales, the immediate heir, and his sons should renounce their rights to the succession to Coburg, so that it was the second in line, Alfred, Duke of Edinburgh, who became Duke on the death of Duke Ernst. Duke Alfred died in 1900 without surviving male issue, and the young Charles Edward was nominated by Queen Victoria to succeed him. Henry, 12th Viscount Taaffe, the only non-royal person affected by the Act, was a member of a family which had been settled in Austria and in the service of the Habsburg monarchy since the seventeenth century.26

25 Princess Helena, third daughter of Queen Victoria, married Prince Christian of Schleswig-Holstein (1831–1917) in 1866. At the Queen’s request, Prince and Princess Christian were resident in England. Their elder son, Prince Christian Victor (1867–1900), served in the British Army and died on active service in the Boer War. Prince Albert, however, chose his father’s country and entered the Prussian Army in 1889. 26 Taaffe’s father had been Franz Josef’s Chancellor at the time of Crown Prince Rudolf’s death in January 1889 and various conspiracy theorists have claimed that the elder Taaffe was privy to a plot to murder Rudolf which was carried through, rather than his dying by suicide.

A REACTION TO POPULAR HYSTERIA

181

Pressure within Parliament for legislation to deal with this issue seems to have come almost exclusively from J.G. Swift MacNeill, MP for Donegal, who raised the question of German princes holding British titles in the House of Commons on seven occasions between November 1914 and the end of July 1916. Swift MacNeill was a leading proponent of Irish Home Rule, and neither his public utterances nor his entry in the Dictionary of National Biography give any clue as to why he appears to have adopted the issue as a personal crusade. The sources of his information on the actions of those he campaigned against are not known, and certainly his information was not always accurate. In answer to his first question on the subject, on 18th November 1914, the Prime Minister, H.H. Asquith, replied that the question of the British and Irish peerages held by the Dukes of Cumberland and Coburg would be reserved for consideration after the war,27 and this remained the Government’s stance until mid1916. Meanwhile, the scope of Swift MacNeill’s questions grew broader, to embrace not only the peerages held by the two Dukes, but also the titles and honours they held by virtue of the Royal Prerogative28 and his tone grew increasingly melodramatic. The Government “hedged” on the issue for another year. On 12th January 1916 Swift MacNeill asked why nothing had been done, and was informed by the Prime Minister that the Government was still not prepared to undertake to legislate.29 On 17th January he for the first time raised the question of the royal titles held by the two Dukes as well as their peerages.30 However, it was not until July, when MacNeill ceased to be a lone voice in the Commons, that the Government began to move. The hardening of the Government’s attitude, which led them to introduce legislation despite the King’s continued unhappiness, coincides precisely in time with the trial and condemnation of Roger Casement for treason, although it must be stated that there are no allusions to Casement’s case in the relevant papers in either the Royal Archives or the Public Record Office. The coincidence is, however, too strong to be purely fortuitous, particularly as Casement’s was and remains perhaps the most controversial conviction for treason in the twentieth century, and the cases of both Casement and the German Princes involved persons of dual loyalties who had subordinated their loyalty to Great Britain to their other loyalty.

27 Supra n. 7 at 437 (wrongly indexed as 432). 28 The royal titles of Prince and Royal Highness or Highness, (hereafter “royal titles”),

and knighthoods in various orders of chivalry. 29 Supra n. 7, vol. 77 at 1601. 30 Supra n. 7, vol. 78 at 18.

182

ANN LYON

Roger Casement (1864–1916) had had a distinguished career in the British Consular Service, and had been knighted by George V in 1911. At some time, he had become converted to the cause of extreme Irish nationalism, and shortly after the outbreak of the First World War went to Germany in order to canvass German aid for an Irish uprising. His attempts to subvert Irish prisoners of war were largely unsuccessful, but he persuaded the Germans to supply a shipment of arms for a rising at Easter 1916. However, the Naval Intelligence Division had become aware of Casement’s activities through their interception of German wireless traffic; the arms shipment was captured at sea on 21st April, and Casement himself was arrested on 22nd April 1916, having been put ashore from a U-boat in Tralee Bay. Casement’s trial took place on 26–30th June, and his appeal against conviction was heard on 17th–18th July. Under the Criminal Appeal Act 1907, in force at the time, a defendant could appeal from the Court of Criminal Appeal to the House of Lords only if the Attorney-General certified that the mater raised a point of law of exceptional importance, and that it was in the public interest that a further appeal should be brought. Casement’s legal representatives attempted unsuccessfully at the end of July to persuade the Attorney-General to grant such a certificate, arguing that the offence of treason in the form of adhering to the enemy, of which Casement had been convicted, could not be committed abroad, as all Casement’s allegedly treasonable acts had been.31 Casement was hanged on 3rd August. On 27th July Swift MacNeill rose in the House of Commons to ask the Prime Minister whether the royal titles and decorations held by the Duke of Coburg and Albert of Schleswig-Holstein “are held subject to the pleasure of the King and are conferred or taken away by the exercise of the Royal Prerogative on the advice of Ministers of the Crown”, and would he advise the King to deprive them of these? Why had not the Dukes of Coburg and Cumberland been deprived of their contingent rights of succession under the Act of Settlement? The Government made a complete volte face. Asquith replied that the Cabinet had had the matter under consideration, and that “His Majesty will be advised to take the necessary steps both as regards titles and orders, and the technical questions involved are being considered by the Lord Chancellor.”32 On the same day Asquith wrote to the King as follows:– 31 Alan Wharam, Famous Treason Trials (London: Sutton Publishing, 1995), pp. 156–

165. R. v. Casement [1917] 1 KB 137. 32 In fact, the official papers suggest that the Cabinet had taken little notice of the question up to that date.

A REACTION TO POPULAR HYSTERIA

183

In view of the widespread and rising feeling on the subject, the Cabinet agreed to advise Your Majesty that the necessary steps should be taken to deprive Foreign Princes who are in arms against the Allies of their British titles and status, and of their contingent rights of succession to the Throne. The Lord Chancellor33 will consider and deal with the technical questions involved.34

Why had the Government been so slow to react? Two reasons suggest themselves. First, in November 1914 and for some time after, a lengthy war was simply not envisaged, so that there was no reason not to put the matter to one side until after the conclusion of hostilities. Secondly, and this seems the stronger ground, there was concern about the embarrassment the matter would cause to the King, and the King’s personal unhappiness. That this was a major influence on the Government when the legislation came to be formulated is very clear from the papers in the Public Record Office. Perhaps, whilst Swift MacNeill’s was simply a lone voice on the backbenches, Asquith’s Government simply hoped that the issue would go away. But now the Government, having allowed one individual with divided loyalties, Roger Casement, to hang for treason, could no longer avoid action against other high profile individuals with dual allegiances, merely because they happened to be the King’s close relations. Material in the Royal Archives indicates the King’s deep unhappiness about the issue, stemming from a sense of dishonour, and also an appreciation, not shared by politicians and the Press, that the position of royal persons was uniquely complex due to the frequency of dynastic inter-marriage. A letter of 17th January 1916 shows that the King was prepared to follow the advice of his Prime Minister in matters concerning the peerages held by the Dukes of Cumberland and Coburg,35 but further correspondence shows that he remained deeply unhappy with the whole business. His views on the legal issues are neatly summed up in an undated draft memo produced by Stamfordham in the early months of 1916:36 The Duke of Cumberland was born a Prince of the United Kingdom of Great Britain and Ireland and still remains as such, and there is no procedure by which this family right can be taken from him . . . The Duke of Albany as Duke of Saxe Coburg Gotha is a Sovereign Prince of a Foreign State and as such is bound by the laws of that State to take part in its defence, while at the same time His Royal Highness has inherent duties as a Prince of the United Kingdom of Great Britain and Ireland, tho’ his present attitude cannot be described as traiterous [sic] to this country. The fulfilment of these dual obligations presents 33 Lord Buckmaster. 34 PRO CAB41/37/28. 35 Supra n. 12 at 61. 36 Supra n. 12 at 64.

184

ANN LYON

a question of considerable difficulty in Constitutional Law . . . and a decision establishing a new precedent could not be arrived at without careful consideration.

Even as late as 17th July 1916, as Casement’s appeal was being heard, the King remained concerned more about personal honour than about public image:37 The King is loathe to take any positive action with regard to Prince Albert of SchleswigHolstein’s British decorations. There are a number of German Princes and Officers in the same position, not to speak of the Emperor of Austria, the King of Bulgaria, and I believe the Sultan [of Turkey]. The question must be considered as a whole, and in His Majesty’s opinion is one which is too petty and undignified to occupy the valuable time of the House of Commons at the present moment.

By 25th July, the King was aware that the position of the Dukes of Cumberland and Coburg in the succession to the British throne was causing ill-feeling in the House of Commons, and suggested that the question be referred to a committee comprising the Lord Chancellor, the three living former Lord Chancellors, and the Duke of Norfolk as Earl Marshal. The same committee could also consider the more general question of decorations.38 Clearly concerned about the public image of the monarchy over this delicate issue, and the danger of the King’s views being misinterpreted, Stamfordham wrote confidential letters to the editors of leading newspapers in the last days of July 1916 urging moderation in their writings and stressing that the position of the German Princes was a good deal more complex than the more vitriolic elements of the press would have the British public believe.39 I begin by stating frankly that His Majesty considers these questions as rather petty, when our minds ought to be centred on this terrible war, and upon it alone. Those of the public who have time to trouble themselves about such matters, ought to realise that all these difficulties, about foreign titles and honours, have their origins in the Royal Marriage [sic] Act . . .40 37 Stamfordham to Mark Bonham Carter, 17th July 1916, concerning the Prime Minister’s reply to Sir Edward Carson’s question. Supra n. 12 at 71. 38 Stamfordham to Prime Minister, 25th July 1916. Supra n. 12 at 78. 39 Stamfordham wrote to the editors of the Morning Post, The Times, the Daily Telegraph and the Manchester Guardian. Supra n. 12 at pp. 86, 91, 93, 94. The editors made extensive use of Stamfordham’s comments; indeed the Morning Post printed Stamfordham’s letter largely unaltered, attributing it to “a well-informed correspondent”. Supra n. 12 at 101. 40 Here Stamfordham is being over-simplistic. Inter-marriage with members of foreign royal dynasties, and thus the possibility of divided loyalties in time of war, was the norm long before the Royal Marriages Act was passed in 1772.

A REACTION TO POPULAR HYSTERIA

185

The Duke of Cumberland is a great grandson of George III, and he is a Prince of the blood, therefore I do not see how any Act of Parliament can declare him to be otherwise . . . But of course an Act of Parliament can strike him and the Duke of Coburg and Albert of SH out of the succession. He is not fighting against us, but is residing at his home in Austria. Since 1866, when he was driven from Hanover, he has lived in Austria. I cannot imagine that he has much affection for Germany as his father and he were driven out of Hanover by the Prussians . . . As to the Duke of Albany, when he inherited the Duchy of Coburg he became a German Prince, and had he not taken up arms in defence of his country he certainly would have been a traitor. He is not an Englishman, though he is also an English Prince and in the Succession. Similarly, Prince Albert of Schleswig-Holstein is a German and therefore was bound to fight for his country. In my humble opinion, the House of Commons seems to have lost all sense of proportion in this matter.41

That the King’s reluctance to have his Government proceed against his German relations was motivated more by traditional concepts of honour and dignity than by personal ties is suggested by Stamfordham’s correspondence. The Duke of Cumberland was George V’s uncle by marriage. The Duke of Coburg and Prince Albert of Schleswig-Holstein were his cousins and both had parents and sisters resident in England,42 but personal concern for the individuals involved emerges only in the case of Prince Albert. As Stamfordham wrote to Sir Archibald Edmonstone of Prince and Princess Christian’s household on 28th July, I cannot say how deeply I feel for Their Royal Highnesses [Prince and Princess Christian] and for Prince Albert. I have given the King your messages, and I can only repeat that the whole subject is most distasteful to His Majesty.43

Writing to Lord Burnham, editor of the Daily Telegraph, in similar terms to his earlier letters, Stamfordham added that Prince Albert, having entered the Prussian Army in 1889, and thereby become a German subject and sworn allegiance to the German Emperor, . . . as a matter of course had no choice but to fulfil his military and national obligations. You can, I am sure, appreciate the pain which the attacks in Parliament and in the Press have caused to Princess Christian . . .44

When Burnham suggested that Prince Albert could have severed his connections with Germany when he went on the retired list of the Prussian 41 Stamfordham to H.A. Gwynne, editor of the Morning Post, 27th July 1916. Supra

n. 12 at 82. 42 Prince and Princess Christian of Schleswig-Holstein, and their two daughters, both of whom were active in wartime charities; the Dowager Duchess of Albany and her daughter. The Duke of Brunswick was also George V’s first cousin, but action against him was not mooted at this stage, presumably because it was not appreciated by the press or by Swift MacNeill that he held British royal titles. 43 Supra n. 12 at 85. 44 Supra n. 12 at 86.

186

ANN LYON

Army before the war, Stamfordham replied that this would be impossible, stressing that Prince Albert remained a German officer subject to recall, but stressing that the current situation was in no way of his parents’ choosing, But if P and Pss Christian had had the prescience that in 28 years he would have had to fight agst England they wd have preferred that he shd starve rather than become a German soldier.45

T HE D RAFTING OF THE L EGISLATION The technical questions involved in drafting what was originally termed the Titles Held By Enemies Bill raised considerably greater difficulties than the identification of the foreign princes concerned, both as the Bill was being drafted, and later when its terms were applied. The honours at issue included not only peerages, but also royal titles. It was accepted by all concerned in the drafting that no person could be deprived of a peerage except by Act of Parliament. However, with one unambiguous exception, no deprivation had been made except in consequence of treasonable acts, and no person had ever been deprived of the title of Prince by virtue of British law. For a person to be convicted of treason under English law, he must owe allegiance to the Sovereign. “Allegiance” is not synonymous with nationality,46 but any British citizen owes allegiance. It was not then appreciated that all the royal persons concerned were British subjects by virtue of Princess Sophia’s Naturalisation Act 1705, as Protestant descendants of the Electress Sophia of Hanover.47 Although it was accepted that the Duke of Coburg was a British subject by birth, there was considerable doubt as to the nationality of the Duke of Cumberland,48 and, further doubt as to whether the ruler of a foreign state (which the Duke of Coburg was, and 45 Burnham to Stamfordham, with pencil note in Stamfordham’s hand. Supra n. 12 at

87–88. 46 A person who is not a British citizen may owe allegiance if he has voluntarily taken allegiance on himself (Joyce v. DPP [1946] AC 347, 348). 47 Attorney-General v. HRH Prince Ernest Augustus of Hanover [1957] 1 All ER 49. The existence of this Act seems to have been ignored from the mid-eighteenth century at least until the 1930s. See A. Lyon: ‘For He is an Englishman’, Statute Law Review (1999). vol. 20, No. 2, pp. 174–184. 48 See, for example, a letter from George V’s Private Secretary, Lord Stamfordham, to Sir Claud Schuster, Permanent Secretary in the Lord Chancellor’s Department, 17th March 1917, in file PRO LCO2/386. Action was taken against the Duke of Brunswick very much as an afterthought. See below.

A REACTION TO POPULAR HYSTERIA

187

the Duke of Cumberland’s father, through whom the Dukes of Cumberland and Brunswick derived any claim to British nationality, had been) could be a British subject. Even if the princes had owed allegiance to King George V, there would remain the difficulty of showing that their actions during the war were treasonable under the Statute of Treasons.49 Could a peerage be forfeited other than by Act of Attainder for treasonable acts? The question was put to the medieval historian J.H. Round, whose researches revealed a handful of dubious medieval precedents.50 John, Duke of Brittany and Earl of Richmond, was adjudged in 1384 by Richard II and the Lords in Parliament to have forfeited his earldom and territorial lordship “on the ground of his adherence to the King’s French adversary in violation of the alliance he had made with King Edward III as well as Richard II, . . . in consideration of which alliance he had received the said earldom and lordship.” A Frenchman, Enguerrand de Coucy, was created Earl of Bedford by his father-in-law Edward III in 1366. He is said to have resigned his earldom and transferred his allegiance to the King of France on Edward’s death in 1377, but in the following year his lands were said to be “seized into the King’s hands on account of his adhesion to the French”.51 John Neville, Duke of Bedford, had been deprived of his title by Act of Parliament in 1477 by reason of his poverty, since he did not have the resources to support the dignity of a dukedom. The status of the title of Prince, and whether this could be removed under the prerogative, was put to Sir Alfred Scott-Gatty, Garter King of Arms, who reported to Lord Sanderson, a member of the Select Committee considering the Bill, on 24th April 1917.52 The question also arose of whether the Duke of Cumberland and Albert of Schleswig-Holstein held any British title of Prince, of which they could be deprived. Garter stated that Letters Patent issued on 3rd February 1864 provided that the royal titles of Prince and Princess and Royal Highness were to be borne by children and grandchildren of Sovereigns. Garter considered this to be merely declaratory of existing law and identified two ambiguities in the provision. First, that it was not clear whether royal titles were limited to the children or grandchildren of Sovereigns, or could devolve on more remote issue. Second, that it was not clear whether all grandchildren were meant or only grandchildren in the male line. Practice since then had not clarified 49 See below. 50 In file PRO TS27/60. 51 Round’s wording is ambiguous, and it may well be that it was the lands which were

seized rather than the title. 52 Supra n. 48.

188

ANN LYON

the position, as there had been a number of cases in which grandchildren in the female line had been formally created Prince or Princess with the prefix of Highness, which would not have been necessary had they held royal titles automatically.53 The position of the Duke of Cumberland, a great-grandson of George III in the male line, had been considered in 1878, shortly after he succeeded to his father’s dignities. The then Garter, Sir Albert Woods, had been of the view that ‘the Princely title ceases with the grandchildren of the Sovereign’ but admitted that no precedent could be quoted. Scott-Gatty, does not press the point, but seems inclined to have believed the Duke of Cumberland to be a holder of royal titles. He noted that the consent given in March 1913 by George V in Council to the Duke of Brunswick’s marriage, required under the Royal Marriages Act 1772,54 described Brunswick as “born Prince of Great Britain and Ireland”, a dignity which he could only have inherited through his father. Further, in Letters Patent dated 17th June 1914 George V declared that Brunswick’s infant son, another Ernst August,55 should enjoy the title of “Highness” together with the designation of “Prince of Great Britain and Ireland”. Again, Brunswick’s son could only have acquired entitlement to this dignity through his father, and, clearly, if Brunswick’s son were to be a Prince of Great Britain it was logical for Brunswick also to be a Prince of Great Britain, and for

53 A Royal Warrant of 30th June 1866 conferred the style of Royal Highness on Prince

Christian of Schleswig-Holstein on his marriage to Princess Helena, and the style of “Highness” on any children of the marriage. A Royal Warrant of 22nd July 1885 conferred the style of Royal Highness on Prince Henry of Battenberg on his marriage to Princess Beatrice, and a further Warrant of 4th December 1886 that of “Highness” on the children of the marriage. In 1905 a Royal Warrant created the daughters of Louise, Princess Royal, eldest daughter of Edward VII, and the non-royal Duke of Fife, “Princess” and “Highness”. At the time of their births they were great-grandchildren of a Sovereign, but became grandchildren of the Sovereign on the accession of Edward VII in 1901, so that they would have automatically acquired royal titles in 1901 had the 1864 Letters Patent applied to grandchildren in the female line. In fact, close scrutiny of the 1864 Letters Patent (RA S26/24) shows that the operative provisions merely confer the title of Royal Highness on children of a Sovereign and children of sons of the Sovereign, in addition to the “titular dignity” of Prince and Princess which they bore in any event. The recitals make it clear that entitlement to the titles of Prince, Princess and Highness was quite undefined by formal Letters Patent and was based solely on custom and practice. It was concluded that Prince Albert’s only British title was that of “Highness” arising from the Royal Warrant of 1866. 54 As Brunswick was a descendant of George II in the male line the consent of the King in Council was required under the 1772 Act in order for him to contract a valid marriage. He, unlike his bride, did not come within the provision exempting “issue of princesses who marry into a foreign family” from the requirement. 55 Attorney-General; supra n. 47.

A REACTION TO POPULAR HYSTERIA

189

Brunswick’s father before him. The position, considered Garter, required clarification.56 Further difficulties were set out by the Parliamentary Counsel, Sir Arthur Thring, in a memo to the Secretary of the Cabinet, Sir Maurice Hankey, dated 23rd November 1916.57 Thring’s memo is a document of major importance. It does not raise any objections to the principle behind the proposed Bill, though it stated that the issue was “a mere question of sentiment, inasmuch as the titles to the holding of which objection is taken do not in practice confer on the holder any right to take part in the government of the country”,58 but sets out the practical difficulties involved in framing the legislation so as to “catch” the persons it was intended to cover (identified as the Dukes of Cumberland and Coburg and Prince Albert of Schleswig-Holstein) in an admirably cogent and dispassionate fashion. Two main points, said Thring, needed to be settled:– 1) The persons or class of persons to be subject to any action; 2) The means to be adopted for taking action. On the first point Thring felt the “natural course” to be to confer a general power to take away any British title or dignity from any person who was an enemy in any sense of the word – any person of “hostile origin or association”. There were, however, a number of objections to this:– a) The actual demand for action was limited in scope and “it would seem undesirable to exceed this level”; b) Such a wide application would involve discretion and enquiry; c) It would be “undesirable to resuscitate any question as to the status of persons like Sir Ernest Cassel and Sir Edgar Speyer”; d) It would make it possible for any unimportant person in England to raise questions “as to some small honour granted to some equally unimportant person in Germany; questions that would be of no public importance whatsoever”; 56 This was achieved via Letters Patent of 30th October 1917, which ended the use of the

title of Highness, and confined those of Prince, Princess and Royal Highness to the children of Sovereigns, grandchildren in the male line and the eldest living son of the eldest son of the Prince of Wales. No one in 1917 appears to have observed that if the previous usage allowed the titles of Prince and Princess to pass to grandchildren in the female line then Kaiser Wilhelm II was also a Prince of Great Britain and Ireland! 57 Memo in file PRO CAB21/20. 58 The peerages concerned all carried the right to sit in the House of Lords, but then as now no person who was not a British subject could receive a Writ of Summons to the Lords. As stated above, it was not appreciated that Cumberland and Coburg were both British subjects.

190

ANN LYON

e) A “false and exaggerated aspect” would be given to an action which is “really small and unimportant”; If such a wide application were ruled out, the next question was where a line should be drawn. A Private Bill naming specific persons would involve enquiry by a Standing Committee, before which the persons concerned were entitled to be represented. There was also the practical difficulty of ensuring that every person concerned was named in the Bill. For these reasons Thring recommended that the scope of the Bill should first be limited to those holding peerages. Although the title of Prince was not a peer’s title, it could, he submitted, “be put in the same position as the title of a peer”. The next question was, inevitably, which peers? A category of peers “who are bearing or have borne arms against this country” would, Thring considered, include the Duke of Coburg “but would probably not include the Duke of Cumberland, who, it is believed, is a peaceful old gentleman living in Austria”. “Persons of enemy nationality” would include Viscount Taaffe, but possibly not the Duke of Cumberland, who could be a British subject by virtue of the British Nationality Act 1774, as the grandson of a natural-born British subject.59 A third category was therefore necessary, in order to include him, that of persons having a permanent residence in, and associations with, any enemy country. It was also necessary to draft the Bill in extremely careful terms, so as to avoid embarrassment to the King. The natural form . . . that the Bill would take would be a Bill authorising the King to declare that it is expedient to forfeit certain titles or dignities, and giving validity by Act of Parliament to the King’s Act of Forfeiture . . . In the present circumstances, however, any such direct action on the part of the King would appear to put the King in an invidious position; and it is desirable, if possible, without losing sight of the intimate connection of the Sovereign with titles and dignities, to make the connection of the Sovereign with the forfeiture in these cases as indirect as possible.

This concern to protect the King explains the peculiar form in which the Bill was drafted, giving power to a Committee of the Privy Council to declare that any peer or British Prince came within one of the three categories listed by Thring, and providing for forfeiture of either title by Order in Council, with no discretion being allowed the King or his Council. Stamfordham too considered it essential that the King should not be implicated, directly or indirectly, in any deprivations under the legislation. He therefore proposed that the report of the Committee should be laid before both Houses for a period of one month, and then should become law without the need for any Royal Assent to deprivation, unless there was a 59 On the question of nationality, see Lyon supra n. 47 at pp. 180–183.

A REACTION TO POPULAR HYSTERIA

191

petition against the report.60 This was incorporated in the final text of the Bill, except that the laying period was specified as 40 days and an Order in Council remained necessary. A further memo by a second Parliamentary Counsel, Sir George Cave, dated 6th February 1916 and enclosed with the draft Bill, considered the question of changes to the succession. He had prepared a draft clause, but had not included it in the Bill for the reasons which he set out:– a) There had been no “pledge” to deal with the German princes’ rights of succession in the Prime Minister’s reply to Swift MacNeill on 27th July 1916, since the Prime Minister had spoken only of “titles and orders”; b) “To change the succession is a serious matter; and I doubt whether the task should be undertaken in wartime”; c) “If the three princes who have been specifically referred to are to be removed from the succession it appears necessary to remove in like manner all the branches of the Royal Family which are of hostile nationality; and this rule would involve many of the issue of Queen Victoria in addition to many collateral branches of the Royal Family. It seems very undesirable that a discussion on these matters should arise at the present time. I am not aware that His Majesty has been consulted on this point”;61 d) “If the clause altering the succession should become operative, uncertainty might arise as to the nationality or hostile action in the present war of some member of the Royal Family and the line of succession might be in doubt”; e) “No person of enemy nationality has any but the most remote chance of succeeding to the Throne. If the question should ever become a practical one it can be dealt with by our descendants.” This, Cave believed, was the most telling objection.62 Swift MacNeill, meanwhile, was growing impatient. After four months of uncharacteristic silence, he returned to the attack on 14th December 1916, and raised the matter a further eight times before the end of May 1917. 60 Stamfordham to Lord Bryce, 15th March 1917. Supra n. 12 at 118. 61 There is nothing in the file to suggest that the King had been consulted. 62 More than 20 living persons separated even the Duke of Coburg from the throne.

Cave’s draft clause reads as follows: “A person who, during the continuance of the present war, has borne arms or shall bear arms against His Majesty, and a person who at any time during the continuance of the present war [being of the age of years or over] is or has been of enemy nationality or domicile, and any issue of any such person, is hereby made incapable of succeeding to the Crown, and the Act of Settlement shall have effect accordingly.”

192

ANN LYON

In fact, there was no appreciable delay. The drafting of the Bill involved complex issues and research into them therefore took some time. Once the drafting was complete, early in February 1917, events moved relatively swiftly. George V had sight of the Bill early in March.63 The Bill was introduced in the House of Lords and debated on 13th March, considered by a Select Committee of the House of Lords between 15th March and 14th May 1917, and then debated in the Commons.64

T HE D EBATE The House of Lords debated the Bill on 13th March 1917.65 Lord Finlay, now Lord Chancellor, introducing the Bill, stated that such deprivations as were provided for in the Bill had never occurred before, but the circumstances giving rise to the Bill had also never occurred before, since earlier wars had been conducted without the gross violations of international law of which the Germans were accused. The persons covered by the Act could not be prosecuted for treason since they were not British subjects, having severed the tie of allegiance by being naturalised elsewhere (British Nationality Act 1870).66 In any case, there was no reason to suppose that the persons covered by the Act were guilty of treason in any proper 63 Lord Stamfordham to Sir Claud Schuster, supra n. 12. 64 It is, of course, legitimate to suggest that both Parliament and Cabinet had more imme-

diate concerns on their minds in this period. Germany had resumed unrestricted submarine warfare on 1st February and from then until August Allied merchant shipping, the bulk of it British, was sunk at the rate of over 500,000 tons per month, to say nothing of the men and cargoes which were being lost (see John Terraine, Business in Great Waters (London: Leo Cooper, 1989)). The Somme offensive had ground to a halt in November 1916 after the British Army had suffered some 450,000 casualties. The French Army had suffered even greater casualties at Verdun and was soon to be racked by a serious mutiny. There was disorder in Ireland in the aftermath of the Easter Rising in 1916 and the executions of its leaders. The Russian monarchy had been overthrown in March and the efforts of the new Provisional Government to keep Russia in the war were proving largely unsuccessful. Although the United States entered the war on the side of the Allies on 6th April, it was not by any means a foregone conclusion that she would, and it was recognised that it would be at least a year before she made any appreciable contribution to the war effort. There was also an increasing fear of revolution, on the Russian model, at home. As Lord Buckmaster, who continued to sit as a Lord of Appeal, wrote to the Lord Chancellor on 22nd June, “I have an uneasy feeling that if the war lasts much longer every institution, including the Throne, will be in jeopardy.” Supra n. 48. 65 Supra n. 7, vol. 24 at 480. 66 This point is open to considerable doubt. See Lyon supra n. 47 at pp. 180–183. Earlier case law also established that a foreign sovereign was not subject to the jurisdiction of the English courts for acts done in his capacity as sovereign, so that, even if the Dukes of Coburg and Brunswick had carried out treasonable acts, it can be strongly argued that they

A REACTION TO POPULAR HYSTERIA

193

sense. The Bill was, however, justified by its circumstances. So too was the mechanism created by the Bill, under which the Committee which would consider individual cases was not required to follow the rules of evidence. We are engaged in war, and it might be difficult if not impossible to get the necessary legal evidence on the matters to which the attention of the Committee is under this Bill to be directed . . . The fact that we are not at peace, but at war, would of course intensify the difficulty of establishing facts which, however, are capable of being ascertained beyond reasonable doubt.

This attempt at justification was far from satisfactory to a number of peers, though no one went as far as Lord Atkin did a quarter of a century later in his dissenting judgment in Liversidge v. Anderson.67 Lord Courtney of Penwith criticised the Bill on a number of grounds. The Dukes of Cumberland and Coburg had not committed and were not connected with any of the atrocities of which the Germans were accused. Further, pressure for the Bill seemed to have come solely from Swift MacNeill. The Bill itself raised serious issues of principle, and potentially affected any person of enemy nationality or domicile, whether or not he had committed any act hostile to Great Britain. The Marquess of Lansdowne objected to the Bill on grounds both of principle and practicality. There was no evidence that the princes concerned had committed any treachery and if they were of enemy nationality or domicile they could not be traitors if they bore arms in defence of the country they had made their own. In any event, the Bill would have no discernible effect on the persons concerned. Viscount Bryce, a historian and jurist, and a future architect of the League of Nations, stated that Bills of Attainder involved allegations of crime and some sort of trial. Under the Bill persons were to be deprived of their titles for what was not a crime and without anything in the nature of a trial. In any case, the only possible action for a German Sovereign Prince in time of war was to do his duty by his subjects. If the German Empire goes to war, and if his Duchy is part of the German Empire, is he not bound to serve at the head of his subjects, and would he not commit something akin to treason if he did not?68 could not have been liable under the Statute of Treasons (per Lord Campbell CJ in De Huber v. Queen of Portugal (1851) 17 QB 196 at 206–207. 67 [1942] AC 206. 68 It is not clear whether Viscount Bryce appreciated that it was still the custom in continental Europe for rulers, or their near relations, to take personal command of their armies in time of war. On the outbreak of war, Tsar Nicholas II appointed his cousin, Grand Duke Nikolai Nikolaievitch, as Russian Commander-in-Chief, and later assumed command himself. Even in Belgium, only a kingdom since 1830, the King was required by the constitution to assume personal command of his army in wartime. In Germany, command

194

ANN LYON

But at this time matters of principle seem to have had little impact. As Lord Buckmaster wrote to the Lord Chancellor on 22nd June: I have . . . really no feeling about this matter except that personally I have always disliked the Bill and more particularly the spirit that prompted it. It may, however, be a wise thing to make the first concession and avoid further attack.69

Both in the Lords and the Commons it was emphasised by those in favour of the Bill that the public interest required it, even if it proved of no practical effect and that “we owed it” to British troops fighting on the various fronts to deal with the anomaly of Germans and Austrians holding British titles.70 The Bill passed all its stages in both the Lords and Commons and received the Royal Assent on 8th November 1917. It then remained to put its provisions into effect. by princes was the norm to such an extent that the military command structure was specifically designed to accommodate it, with the Chief of Staff acting as his superior’s alter ego and having equal powers of command. Both the Kaiser’s heir and the Crown Prince of Bavaria were army commanders on the Western Front, and the Kaiser spent virtually the entire war at army headquarters. The Austrian armies were commanded by Archduke Friedrich, a cousin of Emperor Franz Josef, until the old Emperor’s death in November 1916, whereupon his successor assumed personal command. In leaving command entirely to professional soldiers, and remaining at home apart from regular visits to the Western Front, George V was very much the exception among European monarchs. In that context, it would have been even more impossible for the Duke of Coburg, a young and vigorous sovereign prince, to stand aloof from the war. See Anthony Devere-Summers, War and the Royal Houses of Europe in the Twentieth Century (London: Leo Cooper, 1996), esp. pp. 23–29, 52–58, 69–73. Under German law none of the princes concerned would have been guilty of treason had he refused to take part in the war. However, under Article 57 of the German constitution (Reichsverfassung) of 1871 all able-bodied German males were liable to military service from the ages of 17 to 55. If called up, a German who failed to answer his obligation was liable to imprisonment for up to 5 years under ss.67–68 of the Military Penal Code (Militarstrafgesetzbuch) of 1872, or to up to 10 years’ imprisonment if he deserted (s.70). Further, on 3rd August 1914 all Germans of military age living abroad were ordered to return to Germany (Reichsgesetzblatt 1914, 323). The Duke of Coburg was a serving officer in 1914; presumably it would have been possible for him to resign his commission, but he would still have been liable for military service under Article 57. It would in theory have been possible for him to obtain a dispensation from military service from the Kaiser, since his duty towards Germany conflicted with his duty towards Great Britain, but he might well have been compelled to leave Germany had he done so. In any event this takes no account of what must have been intense moral pressure upon him. The Duke of Brunswick was also a sovereign prince, a serving officer in 1914 and of military age, but his position was rather less difficult as his British connection was more remote. I am grateful to Dr iur. Hans Peter Glöckner of the University of Rostock for this information. 69 Supra n. 48. 70 For the Commons debate see supra n. 7, vol. 96 at 306, 17th July 1917.

A REACTION TO POPULAR HYSTERIA

195

G IVING E FFECT TO THE ACT A Committee of the Privy Council was appointed,71 and the Treasury Solicitor was instructed to prepare the Government’s case to be put to the Committee. His task was to acquire the evidence to satisfy the Committee that the three Princes and Viscount Taaffe fell within one or other of the three categories of persons contained in the Act. It is not entirely easy to reconstruct the sequence of events, since the Treasury Solicitor’s file is jumbled and many of the documents are not only out of sequence but undated.72 However, the general tenor of events and also the difficulties which faced the Treasury Solicitor (Sir John Mellor) are reasonably clear. B.B. Cubitt, Assistant Under-Secretary at the War Office, wrote to Sir Almeric Fitzroy, Clerk to the Privy Council, on 9th February 1918, setting out information so far obtained from the Almanach de Gotha and from the German and Austrian press. The Duke of Coburg was said to have actively borne arms for the enemy, but the cases of the Duke of Cumberland and Albert of Schleswig-Holstein were more difficult. The Duke of Cumberland was said to be in a Lunatic Asylum, and there were practical difficulties in identifying him in the reference books, since he and his son bore the same name and were both styled Duke of Brunswick on the continent.73 However, Cubitt seems to have been happy to damn the Duke of Cumberland for the company he kept. “Being a friend of the old Emperor of Austria,74 he has presumably adhered to His Majesty’s enemies”. Albert of Schleswig-Holstein was on the staff of the Commander of the Prussian Guard Corps in Berlin, and had previously commanded a prisoner of war camp, but there was no evidence that he had actually fought.75 71 The Lord Chancellor, Lord Lansdowne, the Marquess of Crewe, the Lord Chamberlain, Lord Newton, Lord Stamfordham and Lord Sumner. Order in Council dated 27th November 1917. Supra n. 12 at 151. 72 Except where stated, all documents referred to are to be found in file PRO TS27/60. 73 All members of the House of Hanover in the male line were styled Duke or Duchess of Brunswick, although only Ernst August, son of the Duke of Cumberland, was reigning Duke of Brunswick. As it turned out, only the younger Ernst August appeared in the German Army List. 74 Franz Josef, who had died on 21st November 1916. 75 According to the Memoirs of Bernhard von Bulow, German Chancellor from 1903– 1909, Prince Albert had persuaded the Kaiser to allow him a dispensation from active service. However, he had been the object of some suspicion in Germany even before the war. “He spoke German with a distinct English accent, his ways and manners were quite English, and the Kaiser’s entourage believed that he reported to London all that he heard. During the Great War, however, he remained in Germany, the Kaiser having attached him

196

ANN LYON

Instructions were sent to Counsel on 19th March 1918 setting out the information then available on the activities of the Dukes of Cumberland and Coburg and Prince Albert of Schleswig-Holstein. The difficulty arose that only pre-war editions of the Almanach de Gotha and the German and Austrian Army Lists were available, so that there was a potential lacuna in showing that the three princes had borne arms or adhered to the enemy during the present war. Given that the Duke of Cumberland was “confined in a Lunatic Asylum” and was in any event 72 years old, the Treasury Solicitor doubted that he could be playing an active part in the war. Counsel was also asked to advise on whether it was appropriate to seek information from enemy governments through diplomatic channels or from enemy prisoners of war. In an Opinion dated 7th May 1918 Counsel took the view that it would be sufficient to prove that the persons concerned had held enemy commissions at the outbreak of war, that they had been in an enemy country since the outbreak of war, were resident in an enemy country and held titles in enemy countries. The Treasury Solicitor was also advised to establish the liability of the Duke of Coburg and Viscount Taaffe to compulsory military service.76 A cautionary note was sounded in relation to the Duke of Cumberland, We are not told the authority for the statement that the Duke of Cumberland is mentally unsound and confined in an Asylum, or when this is supposed to have happened. It would be as well to enquire into this point a little more closely as we feel some difficulty in saying that a Lunatic can have adhered to the enemy.

Counsel advised against attempts to obtain information from enemy governments, and echoed Cubitt in concluding that useful information was unlikely to be obtained from enemy prisoners. The Treasury Solicitor should make contact with the United States Embassy, the U.S. having continued diplomatic relations with Germany until April 1917, and also consult the officers of the Royal Household. Perhaps Swift MacNeill had more specific information? None of these sources produced any useful information. Lord Reading, British Ambassador in Washington, reported to the Foreign Secretary, A.J. Balfour that, in modern parlance, the Americans “didn’t want to know”. to the Governor of Berlin for special duties, and he complained in his rather comic EnglishGerman about the unpleasant position in which he was placed by the war between his ‘two fatherlands’ ” (Prince von Bulow, Memoirs, vol. II (London: Putnam, 1931) at 347. Prince Albert’s sister adds that her brother spent the entire war in Berlin (HH Princess Marie Louise: My Memories of Six Reigns (London: Lassell, 1956) at 179). 76 Prince Albert born on 27th February 1869 and so in his late forties, was, like the Duke of Cumberland, presumed to be over age for active service.

A REACTION TO POPULAR HYSTERIA

197

The State Department have now informed me privately that their legal advisors consider that individuals would be placed in an awkward position if they formally swore to affidavits to the effect that the princes in question had borne or were bearing arms against Great Britain . . . I understand that the Department would, in fact, prefer not to take any action in this matter, and they seem to feel that it is not one of any real importance.

Lord Stamfordham informed Fitzroy in a letter of 22nd May that the officers of the Household had nothing to add “beyond what comes by hearsay or irresponsible rumour”, further stating that there was no reason to believe that the Duke of Cumberland was “in any way mentally affected, or more mentally unsound than any of us are.” Stamfordham’s impatience with the matter, which emerges in correspondence some six months earlier,77 is clearly apparent from a private letter to Fitzroy sent separately: I never heard such rubbish in my life! The Duke of Cumberland is no more mentally unsound than I am, and the Opinion of the Law Officers of the Crown seems to me a most pompous and unhelpful pronouncement. I wish them luck in getting any evidence worth having from Mr Swift MacNeill! Certainly there is no one here who can give any.78

Swift MacNeill demonstrated a serious lack of the courage of his convictions when he wrote to Mellor on 16th June stating that some information had been given him anonymously, some in confidence, some on condition that the identity of the source was not revealed. He had not kept copies of the letters concerned, and could not remember the names or addresses of the authors. The Treasury Solicitor was once again thrown back on official reference books and continental newspaper cuttings. Major J Sealy Clarke of MI5 wrote on 1st June that the information that the Duke of Cumberland was in a Lunatic Asylum was based on a report which had appeared in The Times some two years earlier. The latest information was that he had suffered a nervous breakdown following the outbreak of war and the earlier deaths of two of his sons, and had spent some time in a sanatorium, “quite a different matter from” an asylum. However, Clarke continued, the Duke had always 77 Mr Lynch MP had on 23rd November 1917 tabled a question to the Chancellor of the Exchequer as to whether Albert of Schleswig-Holstein had “any privilege or prerogative in this Country by virtue of what is called hereditary right: whether he possesses property in this country . . .” Stamfordham wrote in the following robust terms to the Chancellor’s Private Secretary, J.C.C. Davidson: “Prince Albert of Schleswig-Holstein has no privileges or prerogative in this country by virtue of hereditary right: further, he possesses no property in this country beyond possibly a set of Golf Clubs, he is a scratch player!”. Supra n. 12 at 149–150. 78 Supra n. 12 at 157.

198

ANN LYON

been rather “odd” and was intensely anti-British.79 No source is given for any of this information. On 17th June Cubitt wrote to Mellor from the War Office to state that scrutiny of the German and Austrian Army Lists and press reports revealed that the Duke of Coburg held the following ranks in the German Army:– General of Infantry80 a la Suite in the 1st Regiment of Prussian Foot Guards, as of 24th December 1914; Lieutenant General a la Suite 1st Saxon Hussar Regiment; Colonel-in-Chief81 of 6th Thuringian Infantry Regiment No. 95 and of 1st Regiment of Rhenish Hussars No. 9.

The Duke of Cumberland was Colonel of the 42nd Regiment of Austrian Infantry, and since 24th December 1917 had been a General of Cavalry in the Austrian Army. The War Office could find no trace of Viscount Taaffe in any Army List since 1898, when he was serving as a junior officer in the Kaiser Franz Josef Regiment of Dragoons of the Reserve. Further, there was no trace of Taaffe in the 1916 edition of the Hof-und-Stat-Handbuch der Osterreiche-Ungarische Monarchie, an official handbook listing all members of Austro-Hungarian orders of chivalry, “from which”, Cubitt commented drily, “it may perhaps be inferred that he has not served with the Austro-Hungarian colours with distinction if at all in the present war up to 1916”. However, Cubitt went on to state that male Austrian subjects were liable to military service up to the age of 50, and from that it could be inferred that Taaffe was in uniform. A German obituary for Prince Christian of Schleswig-Holstein revealed that Prince Albert was a Lieutenant Colonel a la Suite in the 3rd Uhlans of the Prussian Guard and currently on the staff of the Commander of the Guard Corps in Berlin, and a newspaper cutting stated that he had, on 13th 79 Prior to 1913 the Duke of Cumberland was certainly anti-Prussian, refusing to set foot on Prussian soil until he travelled to Berlin for his son’s wedding, and married to a member of the fiercely anti-Prussian Danish royal family, but there is no evidence that he was ever anti-British. In fact, prior to the war his son, the Duke of Brunswick, took pride in his British links, to the extent of inviting a representative of the British Embassy in Berlin to attend at the birth of his first child in conscious imitation of the then practice of the Home Secretary being present at British royal births. See Sir Horace Rumbold, The War Crisis in Berlin, July–August 1914, 2nd edn. (London, 1944), pp. 36–39. 80 General der Infanterie. No equivalent in the British Army. A General of Infantry (also General of Cavalry, General of Engineers etc.) was senior to a Lieutenant General (Generalleutnant) but junior to a full General (Generaloberst). 81 A Colonel-in-Chief, unlike the Colonel of a regiment, is always a royal person and by no means always a person with military experience or even of military age. Then as now, it was quite usual for royal ladies to be appointed Colonels-in-Chief. Indeed, Russian imperial infants were made Colonels-in-Chief at birth, with the exception of one young Grand Duchess who was made Commodore of a battleship!

A REACTION TO POPULAR HYSTERIA

199

April 1918, attended a lecture on the war given by a Captain Erich von Salzmann at the Philharmonic Hall, Berlin. That there were clearly doubts about the extent of Prince Albert’s active participation in the war is shown by a further comment from Cubitt that the prince was also reputed to be an inmate of a mental asylum.82 The position was clearly unsatisfactory in the eyes of the Treasury Solicitor, but pressure for action was mounting once again, with further questions in the House from Swift MacNeill.83 Sir George Cunningham wrote to Mellor on behalf of Lord Curzon, leader of the House of Lords and member of the War Cabinet, on 7th June that the delay in taking action under the Act was “already the subject of some comment”. Fitzroy wrote to Mellor on 18th June: As I read the Act, it was obviously the intention of Parliament that presumption and inference drawn from a somewhat slender basis of ascertained fact should failing more direct evidence be enough for the Committee in reaching the conclusion that the persons implicated have adhered to His Majesty’s enemies. Looking therefore to the manifest impossibility of obtaining fuller information I submit that the statements in the Almanach de Gotha are sufficient for the purpose.

The Treasury Solicitor seems to have decided at this point that no purpose was to be served in making further enquiries, and sought further advice from Counsel on 20th June. In the case of the Duke of Coburg it was felt that the fact that he was the reigning sovereign of a state which was at war with Great Britain was sufficient in itself to constitute adherence to the enemy, but, said Mellor, it was likely not to be possible to show that either the Duke of Cumberland or Viscount Taaffe had borne arms in the present war.84 82 Lord Buckmaster in a letter written in the same period referred to reports that Prince Albert devoted much of his time to Red Cross work. 83 Supra n. 12 at 164, 166. 84 A piece of “evidence” put to Counsel was a German newspaper cutting obtained on 21st June 1918 reproducing a telegram sent by the Duke of Coburg to the Kaiser on the centenary of the birth of Duke Ernst II, brother of the Prince Consort. “I take the occasion to renew to Your Majesty with a heart full of enthusiasm and together with my Coburgers and Gothaners the solemn promise of unshaken loyalty to the [German] Confederation.” The Kaiser replied in anodyne tones, referring to Duke Ernst’s unflagging zeal in the cause of German unity but not at all to the loyalty of contemporary Coburgers and Gothaners, nor to the Duke himself or his loyalty, although he used the intimate “Du” form where the Duke had used the formal eure Majestät. In fact, the Duke may have taken up arms with the greatest reluctance. According to his sister’s biographer, the Duke was visiting his sister in England when the war broke out and told her that if it were not for his German wife and children he would join the British Army (Theo Aronson, Princess Alice, Countess of Athlone (London: Collins, 1991), pp. 109–110). The possibility of proceeding against Albert of Schleswig-Holstein appears to have been dropped at about this time, although

200

ANN LYON

The problem therefore, said Mellor, was of what constituted “adherence to the enemy”. The words appeared to have been taken from the Statute of Treasons, as defined in R. v. Casement,85 “giving aid and comfort to the King’s enemies”, and the question was whether residence by a national in his own country, paying taxes and so on, constituted “giving aid and comfort”. “No case can be found which supports the proposition that a British subject by reason merely of residence in an enemy country would be amenable to the law of High Treason.” No advice from Counsel appears to have been forthcoming and the matter was listed before the Committee of the Privy Council on 1st August. An affidavit was sworn by Mellor on 25th July in relation to the Dukes of Cumberland and Coburg and Viscount Taaffe, and a second one in relation to the Duke of Brunswick of 27th July, a decision having apparently been taken as late as 26th July that action should be taken against him in addition to his father. The affidavits set out the British titles each held, the commissions in the German and Austrian armies they were known to have held,86 and their residences in Germany and Austria. In the case of Viscount Taaffe, although it was admitted that he was not known to have served in the Austrian Army since 1898, and that he did not appear to hold any official position in Austria, it was submitted that he was of military age. In the case of the Duke of Brunswick it was stated additionally that he was the son-in-law of the German Emperor. The Brief to the Law Officers of the Crown of 26th July added that the Duke of Coburg, as a reigning sovereign, was “presumably personally in a state of war with His Majesty the King”. It will be noted that although reference was made to the promotions the Dukes of Cumberland and Coburg had received since the outbreak of war, there was no information at all as to their activities, military or otherwise, since August 1914. In the case of Viscount Taaffe, the case for the Crown rested simply on the (dangerous) assumption that as he was of military age he must have been bearing arms.87 nothing suggesting a firm decision appears in the surviving papers, presumably because he was not a “British prince”, despite his title of “Highness”, and held no British peerage. 85 [1917] 1 KB 137. 86 According to the 1914 German Army List, the Duke of Brunswick had held the following commissions on the outbreak of war: Colonel a´ la Suite Hussar Regiment No. 3; Colonel of Brunswick Infantry Regiment No. 92; Colonel of Brunswick Hussar Regiment No. 17; Colonel of 1st Regiment of Bavarian Cavalry. 87 Information from the War Office showed that Taaffe had a son born in 1897 who was

also of military age, but there was no evidence as to his military activity, if any. According

A REACTION TO POPULAR HYSTERIA

201

Mellor did not anticipate “any difficulties before the Committee” and in this he proved to be correct. The Transcript of the Committee hearing shows simply that the affidavits were read out by the Attorney-General and no questions were asked. By an Order in Council of 28th March 1919, the procedural requirements of the Act having been fulfilled, the four were formally deprived of their titles.

C ONCLUSIONS The events set out here took place some eighty years ago, in a climate very different from that of today, and might now be considered with justification to be of no real importance. It may well be that now, as then, there would be little sympathy for those falling within the scope of the Act. Indeed, sympathy for the Duke of Coburg is unlikely to be forthcoming today since he was later a member of the Nazi Party.88 to H.F. von Rüxleben, ‘Die Herzogliche Haus’, in Ludwig Ungelenk ed., Coburg im Weltkrieg 1914–1918 (Coburg, 1922), the Duke of Coburg offered his services to the Kaiser on the first day of German mobilisation, and was immediately appointed to the staff of the 38th Infantry Division, which included the 95th Thuringian Infantry Regiment of which he was Colonel-in-Chief, and with which he spent the entire war. Rüxleben was Marshal of the Ducal Court and the Duke’s Chief Minister (Oberhofmarschall und Kabinettchef) and so close to the Duke, and the tone of his account is intended to allay any suspicion of divided loyalties on the part of the Duke and his immediate family. I am grateful to Dr Rainer Hansbrendt of the Stratsarchiv Loburg for a photocopy of this material; and to my father, Squadron Leader R.T.F. Lyon for his translation. Suspicion seems also to have developed in Germany as to the commitment of the Duke of Brunswick to the German cause; the American dentist who treated the Kaiser and members of the imperial family recalled an occasion on which the Duke visited incognito, having been instructed by the Kaiser not to show himself in public in Berlin, shortly after a large group of demonstrators had assembled outside the ducal palace in Brunswick to demand that the Duke return to the Front at once (Arthur N. Davis, The Kaiser I Knew (London: Hodder & Stoughton, 1918) pp. 202–203. I have been unable to obtain any information as to the wartime activities of the Duke of Cumberland or Viscount Taaffe. 88 The Duke of Coburg, whose entire adult life seems to have been blighted by the conflict between his natural and adopted countries, abdicated in November 1918, along with the other German princes. However, he remained resident in Germany (indeed, his property in Britain was seized by the Public Trustee under legislation applicable to enemy aliens), and became involved in various right-wing movements in the 1920s. It should be borne in mind that the ‘old guard’ in Germany seem to have regarded the Nazis as a bulwark against a Communist takeover, and as a means to the restoration of the monarchy, rather than necessarily adhering to them out of conviction, and also that the Nazis actively and perhaps cynically cultivated this ‘old guard’ in their search for legitimacy. The Duke, who seems not to have been a particularly strong character (his sister’s biographer describes him as “intense, emotional and irresolute”), became a Party member in 1935 but apparently

202

ANN LYON

However, the most disturbing features are all too obvious, and several have echoes in our own time:– a) The extreme response to an apparently small but highly vocal section of public and media opinion; b) The taking of action by the Government as a matter of political expediency, in order to appease the populace in a time of political difficulty – the making of a “gesture” of little practical effect – and in order to be seen to be pursuing a consistent policy, even though the cases of Roger Casement on the one hand, and the German Princes on the other, were, despite their surface parallels, radically different; c) The effective creation of a crime where none had existed before, and the retrospective criminalising of past actions; d) The taking of action against specific persons by means of a Public rather than a Private Act, thereby evading the procedural safeguards for individuals applicable to Private Bills prior to their passage through Parliament; e) The framing of the legislation to prevent any exercise of discretion by decision-makers; f) The complete absence of natural justice; g) The reliance on out-of-date, gossip and innuendo to obtain the desired result, rather than the following of the normal rules of evidence; h) The evasion by legislation of established legal principles in order to obtain the desired result; i) The attack on an “easy target” where the real source of popular indignation was out of reach of such action. Kaiser Wilhelm II was the leading “hate figure” of British propaganda in the First World War, not least, one suspects, because he was Queen Victoria’s grandson and George V’s first cousin and therefore, if not quite a “traitor” as far as media sentiment was concerned, then certainly a renegade, as Casement was.89 However, once stripped of his Garter and ranks in ceased active involvement with the Nazis before the outbreak of war, which he spent as President of the German Red Cross. However, he was imprisoned by the Americans in 1945 as a Nazi, and ultimately tried in absentia by a de-nazification court and fined £100 as a member of the fourth and lowest class of Nazi suspects. He died in 1954. Supra n. 84 pp. 122–123, 181–184, 240–241. 89 Lloyd George’s election campaign in December 1918 included a pledge to “Hang the Kaiser”, and steps were taken by the Allied Powers after the war for the Kaiser to be put on trial as a war criminal. Article 27 of the Versailles Treaty arraigned Wilhelm II “for a supreme offence against international morality and the sanctity of treaties”. The Kaiser took refuge in Holland in November 1918, and requests were made to the Dutch Government in January and February 1920 for his extradition, but this was refused as incompatible with Dutch sovereignty and national honour. See Michael Balfour,

A REACTION TO POPULAR HYSTERIA

203

the British services, there was no direct legal action which could be taken against him. In the case of Cumberland, Coburg and Brunswick, two of them also first cousins of the King, there was. Although the attitude of King George V and the officers of his Household may easily be misinterpreted, it is at least arguable that they, rather than the press and the politicians of the day, properly appreciated the reality and complexity of the situation of the King’s German relations, and the genuine problem of conflicting loyalties which they faced, and followed traditional ideas of honour rather than more modern notions of political expediency. As Stamfordham wrote in 1922 in connection with the removal of the eight enemy Knights from the Order of the Garter: There never was any question of inflicting ‘degradation’ upon these Banners, for the best of reasons that the Princes in question had not committed any of those offences by which, according to the statutes of the Garter, they could have incurred degradation.90

School of Law University of Wales Swansea

The Kaiser and His Times (Oxford: Oxford University Press, 1964), p. 414, and J.W. Wheeler-Bennett, Hindenburg: The Wooden Titan, 2nd edn. (London: Macmillan, 1967) p. 240. 90 Stamfordham to Dr. A.V. Baillie, Dean of Windsor, 7th May 1922, supra n. 12 at 181.