Legal authority Sovereign State of Being

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Legal authority Sovereign State of Being
« on: October 14, 2016, 10:41:26 PM »

Legal authority Sovereign State of Being
Declaration of Right[edit]

The proposal to draw up a statement of rights and liberties and James's violation of them was first made on 29 January in the House of Commons, with members arguing that the House "can not answer it to the nation or Prince of Orange till we declare what are the rights invaded" and that William "cannot take it ill if we make conditions to secure ourselves for the future" in order to "do justice to those who sent us hither". On 2 February a committee specially convened reported to the Commons 23 Heads of Grievances, which the Commons approved and added some of their own. However, on 4 February the Commons decided to instruct the committee to differentiate between "such of the general heads, as are introductory of new laws, from those that are declaratory of ancient rights". On 7 February the Commons approved this revised Declaration of Right, and on 8 February instructed the committee to put into a single text the Declaration (with the heads which were "introductory of new laws" removed), the resolution of 28 January and the Lords' proposal for a revised oath of allegiance. It passed the Commons without division.[8]

On 13 February the clerk of the House of Lords read the Declaration of Right and Halifax, in the name of all the estates of the realm, asked William and Mary to accept the throne. William replied for his wife and himself: "We thankfully accept what you have offered us". They then went in procession to the great gate at Whitehall. The Garter King at Arms proclaimed them King and Queen of England, France and Ireland, whereupon they adjourned to the Chapel Royal, with theBishop of London preaching the sermon.[9] They were crowned on 11 April, swearing an oath to uphold the laws made by Parliament. The Coronation Oath Act 1688had provided a new coronation oath, whereby the monarchs were to "solemnly promise and swear to govern the people of this kingdom of England, and the dominions thereunto belonging, according to the statutes in parliament agreed on, and the laws and customs of the same". They were also to maintain the laws of God, the true profession of the Gospel, and the Protestant Reformed faith established by law.[10] This replaced an oath which had deferred more to the monarch. The previous oath required the monarch to rule based on "the laws and customs ... granted by the Kings of England".[11]

Provisions of the Act[edit]

The Declaration of Right was in December 1689 enacted in an Act of Parliament, the Bill of Rights 1689.[12] The Act asserted "certain ancient rights and liberties" by declaring:
•laws should not be dispensed with or suspended without the consent of Parliament;
•no taxes should be levied without the authority of Parliament;
•the right to petition the monarch should be without fear of retribution;
•no standing army may be maintained during peacetime without the consent of Parliament;[nb 3]
•That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law;
•the election of members of Parliament should be free;
•the freedom of speech and debates or proceedings in Parliament should not to be impeached or questioned in any court or place out of Parliament;
•excessive bail should not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted;
•jurors should be duly impannelled and returned and jurors in high treason trials should be freeholders;
•promises of fines or forfeitures before conviction are void;
•Parliaments should be held frequently.[13]

The Act declared James' flight from England following the Glorious Revolution to be an abdication of the throne. Furthermore, it listed twelve of James's policies by which James designed to "endeavour to subvert and extirpate the protestant religion, and the laws and liberties of this kingdom".[14] These were:
•by assuming and exercising the dispensing power;
•by prosecuting the Seven Bishops; by establishing of the court of commissioners for ecclesiastical causes;
•by levying money for the crown by pretence of prerogative than the same was granted by Parliament;
•by raising and maintaining a standing army in peacetime without the consent of Parliament;
•by disarming Protestants and arming Catholics contrary to law;
•by violating the election of MPs;
•by prosecuting in the King's Bench for matters cognisable only in Parliament and "divers other arbitrary and illegal courses";
•by employing unqualified persons to serve on juries;
•by requiring an excessive bail for persons committed in criminal cases;
•by imposing excessive fines and "illegal and cruel punishments inflicted";
•by making "several grants and promises made of fines and forfeitures before any conviction or judgment against the person, upon whom the same were to be levied".[15]

In a prelude to the Act of Settlement to come twelve years later, the Bill of Rights barred Roman Catholics from the throne of England as "it hath been found by experience that it is inconsistent with the safety and welfare of this Protestant kingdom to be governed by a papist prince"; thus William III and Mary II were named as the successors of James II and that the throne would pass from them first to Mary's heirs, then to her sister, Princess Anne of Denmark and her heirs (and, thereafter, to any heirs of William by a later marriage).




Article 61
But since we have granted all these things aforesaid, for GOD, and for the amendment of our kingdom, and for the better extinguishing the discord which has arisen between us and our Barons, we being desirous that these things should possess entire and unshaken stability for ever[1], give and grant to them the security underwritten[2];
namely, that the Barons may elect twenty-five Barons of the kingdom[3], whom they please, who shall with their whole power, observe, keep, and cause to be observed, the peace and liberties which we have granted to them[4], and have confirmed by this our present charter, in this manner:
that is to say, if we, or our Justiciary, or our bailiffs, or any of our officers, shall have injured any one in any thing, or shall have violated any article of the peace or security[5], and the injury shall have been shown to four of the aforesaid twenty-five Barons, the said four Barons shall come to us, or to our Justiciary if we be out of the kingdom, and making known to us the excess committed, petition that we cause that excess to be redressed without delay[6].
And if we shall not have redressed the excess, or, if we have been out of the kingdom, our Justiciary shall not have redressed it within the term of forty days [7], computing from the time when it shall have been made known to us, or to our Justiciary if we have been out of the kingdom, the aforesaid four Barons, shall lay that cause before the residue of the twenty-five Barons;
and they, the twenty-five Barons, with the community of the whole land[8], shall distress and harass us by all the ways in which they are able[9]; that is to say, by the taking of our castles, lands, and possessions[10], and by any other means in their power[11], until the excess shall have been redressed[12], according to their verdict; saving harmless our person, and the persons of our Queen and children; and when it hath been redressed[13], they shall behave to us as they have done before[14].
And whoever of our land pleaseth, may swear, that he will obey the commands of the aforesaid twenty-five Barons[15], in accomplishing all the things aforesaid, and that with them he will harass us to the utmost of his power[16]: and we publicly and freely give leave to every one to swear who is willing to swear; and we will never forbid any to swear[17].
But all those of our land, who, of themselves, and of their own accord, are unwilling to swear to the twenty-five Barons, to distress and harass us together with them, we will compel them by our command, to swear as aforesaid[18].
And if any one of the twenty-five Barons shall die, or remove out of the land, or in any other way shall be prevented from executing the things above said, they who remain of the twenty-five Barons shall elect another in his place[19], according to their own pleasure, who shall be sworn in the same manner as the rest.
In all those things which are appointed to be done by these twenty-five Barons, if it happen that all the twenty-five have been present, and have differed in their opinions about any thing, or if some of them who had been summoned, would not, or could not be present, that which the greater part of those who were present shall have provided and decreed, shall be held as firm and as valid, as if all the twenty-five had agreed in it: and the aforesaid twenty-five shall swear, that they will faithfully observe, and, with all their power, cause to be observed, all the things mentioned above[20].
And we will obtain nothing from any one, by ourselves, nor by another, by which any of these concessions and liberties may be revoked or diminished. And if any such thing shall have been obtained, let it be void and null: and we will never use it, neither by ourselves nor by another[21].



The Act of Settlement provided that the throne would pass to the Electress Sophia of Hanover – a granddaughter ofJames VI of Scotland and 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 additional provisions of the act would only come into effect upon the death of both William and Anne:[8]
•The monarch "shall join in communion with the Church of England." This was intended 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 which had been resolved by the joint monarchy ofWilliam 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 far-sighted, because when a member of the House of Hanover ascended the British throne, he would retain the territories of the Electorate of Hanover (in what is now 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.
•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 ofGeorge I, who was also the Elector of Hanover and Duke of Brunswick-Lüneburg within the Holy Roman Empire; because of this and also for personal reasons he wished to visit Hanover occasionally.[9]
•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.[9]
•No foreigner, even if naturalised (unless 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." Subsequent nationality laws made naturalised citizens the equal of those native born, and this provision no longer applies.
•No person who has an office under the monarch, or receives a pension from the Crown, can be a 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 can get round the age-old prohibition on resignation by obtaining a sinecure in the control of the Crown; while several offices have historically been used for this purpose, two are currently in use: appointments generally alternate between the stewardships of the Chiltern Hundreds and of the Manor of Northstead.[10])
•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 its purpose was to assure judicial independence.
•No pardon by the monarch can save someone from being impeached by the House of Commons.

julian Farmer


 
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