Act of Settlement 1701

Act of Settlement

Parliament of England
Long title	An Act for the further Limitation of the Crown, and better securing the Rights and Liberties of the Subject.
Citation	12 & 13 Will. 3 c. 2
Dates
Royal assent	24 June 1701
Other legislation
Amended by	1 Edw. 8 & 1 Geo. 6 c. 3
Status: Current legislation

Act of Settlement

Sophia of the Palatine, later Electress of Hanover
Portrait by her sister Louise Hollandine, c. 1644

The Act of Settlement (12 & 13 Wm 3 c.2) is an Act of the Parliament of England to settle the succession to the English throne on the Electress Sophia of Hanover, a granddaughter of James I, and her Protestant heirs. It remains the main Act of Parliament governing the succession to the thrones of the United Kingdom and the other Commonwealth Realms, whether by deference to the Act as a British statute or as a patriated part of the particular Realm's constitution.

As such, the Act remains a key part of the constitutions of the United Kingdom and of the other Commonwealth Realms. The Act was originally filed in the Parliament of England in 1700, passed in 1701, and was later extended to Scotland by the terms of the Acts of Union 1707 before it was ever needed. It has since been incorporated in all such matters as noted above, including that of establishing the United Kingdom.

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.

Background

Following the Glorious Revolution, the line of succession to the English throne was governed by the Bill of Rights 1689. The Bill of Rights 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 (ruling jointly as William III and Mary II). The Bill of Rights also stated 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, and Princess Anne's last surviving child, William, Duke of Gloucester, died in 1700. William III had not remarried, and Princess Anne was unlikely to have anymore children due to her age and the large number of miscarriages she had previously suffered. Thus, there was a need for a new law to:

• ensure the succession would continue 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 was passed formally in June 1701

Provisions of the Act

The Act provided that the throne would pass to the Electress Sophia of Hanover — a granddaughter of James I of England, VI of Scotland, niece of Charles I of England and Scotland — and her Protestant descendants. Only the descendants of Sophia who were Protestant, and had not married a Roman Catholic, could succeed to the throne. Roman Catholics and those who marry Roman Catholics are barred from ascending the throne "for ever".

Also, eight provisions were included in the Act that would only come into effect when both King William and Princess Anne were dead. These were:

• That 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.

• That, 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.

• That 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 King 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.

• That 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.

• That 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 (MP), 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 British subjects.

• That no person who has an office under the monarch or receives a pension from the Crown can be an MP. This provision was inserted to avoid unwelcome royal influence over the 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, the main one in current use is the Wardenship of the Chiltern Hundreds.

• That 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. This provision was the result of various monarchs' influencing judges' rulings, and it assured nearly full judicial independence.

• That no pardon by the monarch can save someone from being impeached by the Commons in Parliament.

An effect of the Act is to make succession automatic and immediate: it does not depend on or wait for proclamation by the Privy Council.

For these reasons various constitutionalists have praised the Act of Settlement. Henry Hallam called the Act "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".

Act of Union

This Act 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.

As a result, 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 Crown, the Act of Settlement became part of Scots Law as well.

Sophia died before Anne, so the result of the Act was the succession of Sophia's son George as King George I, in preference to many of his cousins.

Pursuant to the Act of Settlement, several members of the British Royal Family who have converted to Roman Catholicism or married Roman Catholics have been barred from succeeding to the Crown, though since George I no individual has actually been excluded from the throne on religious grounds.

Current effects

Since the passing of the Act, 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. Prince Michael of Kent 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 be 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.

Excluding those British 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 passing of the Act: The Duchess of Kent, wife of Prince Edward, Duke of Kent. The Duchess converted to Roman Catholicism on January 14, 1994. Her husband, the Duke, did not lose his place in the succession, as the Duchess was an Anglican at the time of their marriage. The Duchess herself was never in the line of succession.

On 28 July 2007, an engagement was announced between Peter Mark Andrew Phillips, eleventh-in-line to the Throne, and Canadian Autumn Kelly; it was later reported that Kelly was a Roman Catholic. Kelly 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.

1936 abdication

Under the Act, the senior descendant of the Electress Sophia is automatically sovereign, whether they wish to be or not. Thus, during the abdication crisis in 1936 caused by King Edward VIII's desire to marry Wallis Simpson, a new Act of Parliament was required throughout the Commonwealth Realms. In the United Kingdom His Majesty's Declaration of Abdication Act 1936 was passed, allowing the King to abdicate, and ensured the line of succession would pass to the next senior descendant of Sophia: Edward's brother Prince Albert, Duke of York (who became king as George VI). Any future issue of King Edward VIII, who would be senior in descent under the Act of Settlement, were excluded from succession.

The following year, the Canadian Parliament passed the Succession to the Throne Act (1 Geo. VI, c.16) to ratify their consent to the British legislation. South Africa passed a similar Act. His Majesty's Declaration of Abdication Act did not apply to the Irish Free State, which passed its own legislation to remove Edward VIII, the Executive Authority (External Relations) Act 1936.

Present debate

There are significant difficulties presented by the fact that the Act of Settlement regulates the succession of all the Commonwealth Realms. By the Statute of Westminster, any change to the rules of succession can be made only by agreement between the various realms, including the United Kingdom.

As the current sovereign is a woman, who has reigned for over 50 years, and both her eldest child, and in turn his eldest child, are Anglican males, any move to 'modernise' the rules of succession, by removing the preference for males or the discrimination against Roman Catholics, would currently have no practical implications; combined with the problems of changing the laws (separate legislation in numerous Commonwealth countries), this has led to little public concern with the issue. However, Prince William fathering a daughter (see the case of Victoria, Crown Princess of Sweden), or, even more so, expressing a desire to marry a woman who happened to be Catholic, could significantly revive moves to alter the law.

Canada

In Canada, where the Act of Settlement is now a part of Canadian constitutional law, Tony O'Donohue, a Canadian civic politician, observed that the Act of Settlement 1701 explicitly excludes Roman Catholics from the throne and the Queen is Supreme Governor of the Church of England, requiring her to be an Anglican. This, he claimed, discriminates against non-Anglicans, including Catholics, who are the largest faith group in Canada. In 2002, O'Donohue launched an ultimately unsuccessful court action that argued the Act of Settlement violates the Canadian Charter of Rights and Freedoms. His case was dismissed by the court, which found that as the Act of Settlement is part of the Canadian constitution, the Charter of Rights 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 realms that share the Crown would first have to be sought if Canada wished to continue its relationship with the other Commonwealth Realms. An appeal of the decision was dismissed on 16 March, 2005.

Further information: O'Donohue v. Canada

With the announcement in 2007 of the engagement of Peter Phillips to Autumn Kelly, a Canadian who was Roman Catholic, discussion about the Act of Settlement was 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. See also George Windsor, Earl of St Andrews who in 1988 married Sylvana Jones, a Catholic from Placentia, Newfoundland and Labrador and who is barred from succession to the throne but not from succession to the Dukedom of Kent.

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".[1] 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.[2]

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 reception as a Catholic after leaving office.

References

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

See also

• List of British monarchs
• Line of succession to the British Throne
• Succession to the British Throne
• Treason Act 1702
• Monarchy in Canada

External links

• Template:UK-SLD
• Royal Family web page on succession
• Text of the Act of Settlement as originally passed [Ch VI. Rot. Parl. 13 & 14 Gul. III. n. 6.]', Statutes of the Realm: vol 7: 1695-1701 (1820), pp. 747-50.
• Text of Act of Settlement 1701 - Guardian
• Text of Act of Settlement 1700 - Australian Capital Territory Government. Gives full preamble and long title.
• British Parliament Debates Change To The Act of Settlement of 1701 21 February 2007