Act of Settlement 1701
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The Electress Sophia |
The
Act of Settlement (12 & 13 Wm 3 c.2) was an Act of the
Parliament of England. It is the main
Act of Parliament that governs the
line of succession to the throne of each
Commonwealth Realm, whether by deferrence 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 passed by the Parliament of England and was later extended to
Scotland by the terms of the
Acts of Union 1707. The Act became a
Canadian law through the
Constitution Act, 1982.
Originally an Act of the
Parliament of England, it was passed in
1701[This Act is sometimes known as the Act of Settlement 1700, not because of the change from Julian to Gregorian calendars (the Act was passed in June 1701), but because before 1793, Acts of Parliament came into force on the first day of the session on which Parliament sat, which was in 1700.] during the reign of
King William III. As the King was childless, and his wife
Mary II had died in
1694, the throne would pass to Mary's sister,
Princess Anne on the King's death. However Anne's last surviving child,
William, Duke of Gloucester died in 1700, and it was unlikely she would ever have any more children. Under the
Bill of Rights 1689, the line of succession was limited to the descendants of Mary II and Anne, thus there was a need for a new law to allow the succession to continue in the Protestant line, and to exclude the deposed
James II and his son,
James Francis Edward Stuart.
The Act provided that the throne would pass to the
Electress Sophia of Hanover, a granddaughter of
James I/VI, and her descendants. Only the descendants of Sophia who were Protestant, and had not married a Catholic could succeed the throne. In addition, it specifies that it is for
parliamentary legislation to determine who should succeed to the throne, not the monarch.
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.
In anticipation of fact that Anne's successor would also rule Hanover, the Act requires parliamentary consent for any war to defend areas not belonging to the English Crown. It further bars the monarch from leaving the British Isles without Parliamentary consent.[
1]
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 their own successor to
Queen Anne.
As a result, the
Parliament of England decided that 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. 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.
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.
As a result of 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 the grounds of religion.
From time to time there has been debate over repealing the clause that keeps
Roman Catholics or those who marry Catholics from ascending to the throne. Proponents of repeal argue that the clause is a
bigoted anachronism and
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 Catholic Church in England, pointed out that
Prince William, "can marry by law a Hindu, a Buddhist, anyone, but not a Roman Catholic."[
2] Opponents of repeal feel that repeal could lead to a Catholic assuming the throne, and could lead to the disestablishment of the
Church of England as the state religion. They also point to the fact that the monarch must swear to defend the faith and be a member of the
Anglican Communion and that a Catholic monarch would, like all Catholics, owe allegiance to the Pope which would, according to opponents of repeal such as
Enoch Powell and
Adrian Hilton, amount to a loss of
sovereignty.
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
16 March,
2005. (See
O'Donohue v. Canada)
As alluded to above, there are also significant difficulties presented by the fact that the Act of Settlement regulates the succession of all the
Commonwealth Realms of which the
Queen is
Sovereign, either directly or as a now separate, patriated law, and a change in the
United Kingdom would not automatically apply elsewhere - where the Act would be unchanged. This could easily result in the succession being different in certain countries, and a division of the Crown could result. In the 2005 British
general election campaign
Michael Howard promised to work towards having that prohibition removed if the Conservative party gained a majority of seats in the House of Commons. In any event, the election was won by
Tony Blair's Labour party, who have made no moves to change this law.
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 protestant males, any move to 'modernise' the rules of succession, by removing the preference for males or the discrimination against Catholics, would currently have no practical implications; combined with the problems of changing the laws (separate legislation in numerous Commonwealth countries), this has lead 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, would significantly revive moves to alter the law.
*
List of British monarchs*
Line of succession to the British Throne*
Succession to the British Throne*
Treason Act 1702*
Monarchy in Canada*
Royal Family web page on succession*
Text of Act of Settlement 1701 - Guardian*
Text of Act of Settlement 1700 - Australian Capital Territory Government Gives full preamble and long title.
