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Act of Settlement 1701

The Act of Settlement is an act of the Parliament of England, originally filed in 1700, and passed in 1701, to settle the succession to the English throne on the Electress Sophia of Hanover a granddaughter of James I and her Protestant heirs. The act was later extended to Scotland as a result of the Treaty of Union (Article II), enacted in the Acts of Union 1707 before it was ever needed, and further through the expansion of the British Empire. Along with the Bill of Rights 1689, it remains today one of the main constitutional laws governing the succession to not only the throne of the United Kingdom, but, following British colonialism, the resultant doctrine of reception, and independence, also to those of the other Commonwealth realms, whether by willing deference to the act as a British statute or as a patriated part of the particular realm's constitution. Since the implementation of the Statute of Westminster in each of the Commonwealth realms (on successive dates from 1931 onwards), the Bill of Rights cannot be altered in any realm except by that realm's own parliament, and then, by convention, and as it touches on the succession to the shared throne, only with the consent of all the other realms.

Because of a change in the way bills are named, the act is also sometimes referred to as the Act of Settlement 1700. The measure contains neither date in its title, making the minor name ambiguity in some references to it now a matter of mere interesting historical/clerical trivia. Today it is generally referred to as Act of Settlement 1701.

Original context

Following the Glorious Revolution, the line of succession to the English throne was governed by the Bill of Rights 1689, which declared that the flight of James II from England to France during the revolution amounted to an abdication of the throne, and that his son in law, William of Orange, and his daughter, Mary, were his successors, who ruled jointly as William III and Mary II. The Bill of Rights also stated that the line of succession would go through their descendants, then through Mary's sister Princess Anne, and her descendents, and then to the issue of William III by a later marriage (if he were to marry again after the death of Mary II).

However, Mary II died in 1694, after which William III did not remarry, and Princess Anne's last surviving child, William, Duke of Gloucester, died six years later, after which it was unlikely she would have any more children due to her age and the large number of miscarriages she had previously suffered. Thus, there was seen a need for a new law that would ensure the continuance of the succession following the death of the last legal heir under the Bill of Rights, Princess Anne; to ensure the line of succession would continue in the Protestant line; and to exclude any possible claims by the deposed James II or his son and daughter, James Francis Edward and Louisa Maria Teresa Stuart. The Act of Settlement was thus passed and granted Royal Assent in June 1701.

Provisions of the act

The Act of Settlement provided that the throne would pass to the Electress Sophia of Hanover a granddaughter of James VI of Scotland, I of England, niece of Charles I of Scotland and England and her Protestant descendants who had not married a Roman Catholic; those who were Roman Catholic, and those who married a Roman Catholic, were barred from ascending the throne "for ever." Eight further provisions of the act would only come into effect upon the death of both William and Anne:

  • The monarch "shall join in communion with the Church of England." This was another provision to avoid a Roman Catholic monarch. Along with James II's perceived despotism, his religion was the main cause of the Glorious Revolution of 1688, and the previous linked religious and succession problems solved by the joint monarchy of William and Mary.
  • If a person not native to England comes to the throne, England will not wage war for "any dominions or territories which do not belong to the Crown of England, without the consent of Parliament." This was farsighted, because when the House of Hanover ascended the British throne they would retain the territories that became the Kingdom of Hanover (situated in modern-day Germany's Lower Saxony). This provision has been dormant since Queen Victoria ascended the throne, because she did not inherit Hanover under the Salic Laws of the German states of the day, but in principle it could again become relevant in the future.
  • No monarch may leave "the dominions of England, Scotland, or Ireland," without the consent of Parliament. This provision was repealed in 1716, at the request of George I, who was also the Elector of Hanover and Duke of Brunswick-Lüneburg of the Holy Roman Empire, and so frequently needed and wanted to stay in Hanover.
  • All government matters within the jurisdiction of the Privy Council were to be transacted there, and all council resolutions were to be signed by those who advised and consented to them. This was because parliament wanted to know who was deciding policies, as sometimes councillors' signatures normally attached to resolutions were absent. This provision was repealed early in Queen Anne's reign, as many councillors ceased to offer advice and some stopped attending meetings altogether.
  • No foreigner, even if naturalized (unless they were born of English parents), shall be allowed to be a Privy Councillor or a member of either House of Parliament, or hold "any office or place of trust, either civil or military, or to have any grant of lands, tenements or hereditaments from the Crown, to himself or to any other or others in trust for him." As a result of subsequent nationality laws, this provision does not apply to naturalized citizens in any country.
  • No person who has an office under the monarch, or receives a pension from the Crown, can be Member of Parliament (MP). This provision was inserted to avoid unwelcome royal influence over the House of Commons. It remains in force, but with several exceptions. As a side effect, this provision means that MPs seeking to resign from parliament could get around the age-old prohibition on resignation by obtaining a low-salary sinecure in the pay of the Crown; while several offices have been used for this purpose, two are currently in use. Appointments generally alternate between the Stewardships of the Chiltern Hundreds and the Manor of Northstead.
  • Judges' commissions are valid quamdiu se bene gesserint (during good behaviour), and if they do not behave themselves they can be removed only by both houses of parliament, or the one house of parliament, depending on the legislature's structure. This provision was the result of various monarchs' influencing judges' rulings, and it assured nearly full judicial independence.
  • No pardon by the monarch can save someone from being impeached by the House of Commons.

Effects of the act

For different reasons, various constitutionalists have praised the Act of Settlement: Henry Hallam called the act in the United Kingdom "the seal of our constitutional laws," and David Lindsay Keir placed its importance above the Bill of Rights 1689. Naamani Tarkow has written: "If one is to make sweeping statements, one may say that, save Magna Carta (more truly, its implications), the Act of Settlement is probably the most significant statute in English history".

The United Kingdom

The Act of Settlement was, in many ways, the major cause of the union of Scotland with England and Wales to form the Kingdom of Great Britain. The Parliament of Scotland was not happy with the Act of Settlement, and, in response, passed the Act of Security in 1704, which gave Scotland the right to choose its own successor to Queen Anne. Stemming from this, the Parliament of England decided that to ensure the stability and future prosperity of Great Britain, full union of the two parliaments and nations was essential before Anne's death, and used a combination of exclusionary legislation (the Alien Act of 1705), politics, and bribery to achieve it within three years under the Act of Union 1707. This was in marked contrast to the four attempts at political union between 1606 and 1689, which all failed owing to a lack of political will in both kingdoms. By virtue of Article II of the Treaty of Union, which defined the succession to the British throne, the Act of Settlement became part of Scots Law as well.

Removal from the succession

Since the passage of the Act of Settlement, the most senior royal to have married a Roman Catholic, and thereby been removed from the line of succession, is Prince Michael of Kent, who married Baroness Marie-Christine von Reibnitz in 1978; he was fifteenth in the line of succession at the time of his marriage. The current most senior living descendant of the Electress Sophia who is ineligible to succeed due to the act is George Windsor, Earl of St Andrews, the eldest son of Prince Edward, Duke of Kent, who married the Roman Catholic Sylvana Palma Tomaselli in 1988; he would have been 25th in the line of succession if he had not lost his place. His son, Lord Downpatrick, converted to Roman Catholicism in 2003, and is the most senior descendant to be barred as a Catholic himself. More recently, Peter Mark Andrew Phillips, son of Princess Anne, Princess Royal, and eleventh in line to the throne, married Autumn Kelly; Kelly was a Roman Catholic, but converted to the Anglican faith prior to the wedding. Had she retained her Catholicism, Phillips would have forfeited his place in the succession upon their marriage.

Excluding those princesses who have married into Catholic royal families abroad, only one member of the Royal Family (i.e. with the style Royal Highness) has converted to Roman Catholicism since the passage of the act: the Duchess of Kent, wife of Prince Edward, Duke of Kent. The Duchess converted to Roman Catholicism on January 14, 1994, however, her husband did not lose his place in the succession, as the Duchess was an Anglican at the time of their marriage. In December 1978, there was media speculation that Prince Charles, Prince of Wales, might marry a Roman Catholic, though the runours were never verified.

The abdication of 1936

Under the Act of Settlement, succession of the senior descendant of the Electress Sophia is automatic and immediate, neither depending on, nor waiting for, any proclamation. Thus, during the abdication crisis in 1936, caused by Edward VIII's desire to marry Wallis Simpson, new acts of parliament were required throughout the Commonwealth realms to allow for Edward's stepping aside, and ensuring that any potential children of his would have no claim to the throne. In the United Kingdom, His Majesty's Declaration of Abdication Act was, with the consent of the Australian, Canadian, New Zealand, and South African governments, passed, ensuring the line of succession would pass to the next senior descendant of Sophia: Edward's brother, Prince Albert, Duke of York. The Irish Free State did not allow the British legislation to take effect in the Free State's jurisdiction, however; the Irish parliament passed its own act the Executive Authority (External Relations) Act the day after the Declaration of Abdication Act took force elsewhere, meaning Edward VIII was, for one day, King of Ireland while George VI was king of all the other realms. To formalise its government's consent to the abdication, the Canadian parliament passed, the following year, the Succession to the Throne Act (1 Geo. VI, c.16), and South Africa took a similar course of action.

Present debate

Challenges have been made against the Act of Settlement, especially its provisions regarding Roman Catholics and preference for males. However, as the Act of Settlement is a common denominator in the shared succession of all the Commonwealth realms, and as the Statute of Westminster, 1931, requires that any changes to the rules of succession only be made with the agreement of all the various other states, including the United Kingdom, alterations to the act are not as simple as passing any changes through parliament. Further, as the current monarch is a woman, and both her eldest child, and, in turn, his eldest child, are Anglican males, any move to change the succession laws would have no practical implications. Consequently, there has been little public concern with the issues, and debate has been confined to largely academic circles. If, however, Prince William were to father a daughter, and then a son, or express a desire to marry a Catholic woman, moves to alter the Act of Settlement could be significantly revived.

Canada

In Canada, where the Act of Settlement is now a part of Canadian constitutional law, Tony O'Donohue, a Canadian civic politician, took issue with the provisions that exclude Roman Catholics from the throne, and which make the monarch of Canada the Supreme Governor of the Church of England, requiring him or her to be an Anglican. This, he claimed, discriminated against non-Anglicans, including Catholics, who are the largest faith group in Canada. In 2002, O'Donohue launched a court action that argued the Act of Settlement violates the Canadian Charter of Rights and Freedoms, but the case was dismissed by the court, which found that, as the Act of Settlement is part of the Canadian constitution, the Charter of Rights and Freedoms does not have supremacy over it. Also, the court pointed out that, while Canada has the power to amend the line of succession to the Canadian throne, the Statute of Westminster stipulates that the agreement of the governments of the fifteen other Commonwealth realms that share the Crown would first have to be sought if Canada wished to continue its relationship with these countries. An appeal of the decision was dismissed on March 16, 2005.

With the announcement in 2007 of the engagement of Peter Phillips to Autumn Kelly, a Roman Catholic, discussion about the Act of Settlement was somewhat reinvigorated. Norman Spector called, in The Globe and Mail, for Prime Minister Stephen Harper to address the issue of the Act of Settlement's bar on Catholics, saying that Phillips' marriage to Kelly would be the first time the provisions of the act would bear directly on Canada Phillips would be barred from acceding to the Canadian throne because he married a Roman Catholic Canadian. (This is not the case, however, as George Windsor, Earl of St Andrews, had already lost his place in the line of succession when he married the Roman Catholic Sylvana Palma Tomaselli in 1988.)

United Kingdom

From time to time there has been debate over repealing the clause that keeps Roman Catholics or those who marry Roman Catholics from ascending to the throne. Proponents of repeal argue that the clause is a bigoted anachronism; Cardinal Winning, who was leader of the Roman Catholic Church in Scotland, called the act an 'insult' to Catholics. Cormac Cardinal Murphy-O'Connor, the leader of the Roman Catholic Church in England, pointed out that Prince William, "can marry by law a Hindu, a Buddhist, anyone, but not a Roman Catholic". Opponents of repeal, such as Enoch Powell and Adrian Hilton, feel that it would lead to the disestablishment of the Church of England as the state religion if a Roman Catholic were to assume the throne. They also point to the fact that the monarch must swear to defend the faith and be a member of the Anglican Communion, but that a Roman Catholic monarch would, like all Roman Catholics, owe allegiance to the Pope. This would, according to opponents of repeal, amount to a loss of sovereignty.

Hilton, writing in The Spectator in 2003, defended the Act of Settlement as not "irrational prejudice or blind bigotry" but claims that it was passed because "the nation had learnt that when a Roman Catholic monarch is upon the throne, religious and civil liberty is lost". He points to the fact that the Pope claims universal jurisdiction and he therefore argues that "it would be intolerable to have, as the sovereign of a Protestant and free country, one who owes any allegiance to the head of any other state" and contends that if such situation came about "we will have undone centuries of common law". He further asserts that because the Roman Catholic Church does not recognise the Church of England as a proper church, a Roman Catholic monarch who abided by their faith's doctrine would be obliged to view Anglican and Church of Scotland archbishops, bishops and clergy as part of the laity and therefore "lacking the ordained authority to preach and celebrate the sacraments". Hilton also claims a Roman Catholic monarch would therefore be unable to be crowned by the Archbishop of Canterbury. He also points to the examples of European states which have similar religious provisions for their monarchs: Denmark, Norway and Sweden—whose constitutions compel their monarchs to be Lutherans—and the Netherlands' constitution which insists their monarchs be through the Protestant House of Orange, and also the Spanish and Belgian constitutions which include provisions for the succession through Roman Catholic houses.

When in December 1978 there was media speculation that Prince Charles might marry a Roman Catholic, Enoch Powell defended the provision that excludes Roman Catholics from ascending the throne. Powell claimed his objection was not rooted in religious bigotry but from political considerations. He claimed a Catholic monarch would involve acceptance of a source of authority external to the realm and "in the literal sense, foreign to the Crown in Parliament ... Between Roman Catholicism and royal supremacy there is, as St Thomas More concluded, no reconciliation". Powell concluded that a "Roman Catholic Crown" would be the destruction of the Church of England because "it would contradict the essential character of that church":

When Thomas Hobbes wrote that "the Papacy is no other than the ghost of the deceased Roman Empire sitting crowned upon the grave thereof", he was promulgating an enormously important truth. Authority in the Roman Church is the exertion of that imperium from which England in the 16th century finally and decisively declared its national independence as the alter imperium, the "other empire", of which Henry VIII declared "This realm of England is an empire" ... It would signal the beginning of the end of the British monarchy. It would portend the eventual surrender of everything that has made us, and keeps us still, a nation.

In the 2005 British general election campaign Michael Howard promised to work towards having the prohibition removed if the Conservative Party gained a majority of seats in the House of Commons. In any event, the election was won by the Labour Party, led by Tony Blair, who made no moves to change this law, despite his own conversion to Catholicism after leaving office.

In 2008 plans drawn up by Chris Bryant were revealed which would end the exclusion of Catholics from the throne, and end the doctrine of cognatic (male-preference) primogeniture, in favour of absolute primogeniture, which governs succession solely on birth order and not on gender.

Notes

Bibliography

  • Tarkow, I. Naamani; "The Significance of the Act of Settlement in the Evolution of English Democracy"; Political Science Quarterly; Vol. 58, No. 4; Dec, 1943; pg. 537-561

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