Back in the Day: Here's how the 1689 Claim of Right restricted the monarch’s power

This week I will describe the Claim in detail and show how this piece of legislation was vital at the time.

You will recall that the joint monarchs had earlier accepted the Declaration of Rights formulated by the English Parliament so that they could become King William III and Queen Mary II of England. The English Declaration, which later that year became the Bill of Rights, was in two parts – a list of 13 “grievances” committed by James VII and II, and a mirror list of 13 clauses setting out the limits of the monarch’s powers.

It’s worth quoting some of the clauses, not least because in a UK that still does not have a written constitution, the Bill of Rights is seen as one of the foundation documents of constitutional law in this UK state.

Clause 1 stated: “That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal.”

Clause 2 continued: “The Crown does not have the legal authority to dispense or execute laws. That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal.”

In short, only Parliament and not the monarch can make and enforce laws. It is the next clause which shows how fearful the Protestant state of England was about the return of Catholicism – the issue which cost James VII and II his throne.

The Articles of Grievance against James VII (above) were subsumed into Scotland’s Claim of Right Act (Image: unknown)

“That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious.” In other words, there could be no Catholic institutions in England and Wales. The bill also stated that only Protestants had the right to bear arms.

The list of controls put upon William and Mary went on: the imposition of taxes by the monarch was made illegal; only Parliament could authorise a standing army; every citizen had the right to petition the monarch, and excessive or unusual punishments were made illegal.

Parliaments were to be held frequently and MPs were to be freely elected and enjoy freedom of speech in Parliament.

It was revolutionary stuff, the most important “peoples’ charter”

in England since the Magna Carta, and, to my mind, the only “glorious” element of the Glorious Revolution. It is still important to us in this modern era because that very English Bill of Rights is still a guiding principle of the UK constitution, such as it is.

The Scottish Convention of Estates knew full well what William and Mary had agreed to and decided to copy the English tactic and even some of the verbiage though there were significant differences between the Bill of Rights and the Scottish Claim of Right.

Scots being Scots and being mostly staunch Presbyterians, the Claim of Right drawn up by the Convention, later confirmed as an Act of the Scottish Parliament, went much further in constraining the powers of the monarchy and was vehemently anti-Catholic.

As Professor JD Mackie wrote in his book A History of Scotland: “The Tory element which had been operative in England was absent from the Scottish Estates, and their claim was radical.”

As I wrote last week, the Claim of Right must always be considered alongside the Articles of Grievance, those articles being directed at James VII. The Articles of Grievance were subsumed into the Claim of Right Act as passed by the Scottish Convention and Parliament.

Below are a few excerpts from the Claim of Right Act 1689 which can be viewed in full on the legislation.gov.uk website maintained by the UK National Archives. The preamble alone gives a flavour of how the Convention felt about James: “Wheras King James the Seventh Being a profest papist did assume the Regall power and acted as King without ever takeing the oath required by law wherby the King at his access to the government is obliged to swear To maintain the protestant religion and to rule the people according to the laudable lawes And Did By the advyce of wicked and evill Counsellers Invade the fundamentall Constitution of this Kingdome And altered it from a legall limited monarchy to ane Arbitrary Despotick power and in a publick proclamation asserted ane absolute power to cass annull and dissable all the lawes particularly arraigning the lawes Establishing the protestant religion and did Exerce that power to the subversion of the protestant Religion and to the violation of the lawes and liberties of the Kingdome.”

The anti-Catholic stance was explicit: “By Erecting publick schooles and societies of the Jesuites and not only allowing mass to be publickly said But also inverting protestant Chappells and Churches to publick Mass houses Contrair to the express lawes against saying and hearing of Mass.

“By allowing popish bookes to be printed and dispersed by a gift to a popish printer designeing him Printer to his Majesties househould Colledge and Chappell Contrair to the lawes “By takeing the children of Protestant Noblemen and gentlemen sending and keeping them abroad to be bred papists makeing great fonds and dotationes to popish schooles and Colledges abroad bestowing pensiones upon preists and perverting protestants from ther Religion by offers of places preferments and pensiones “By Dissarmeing protestants while at the same tyme he Imployed papists in the places of greatest trust civil and military such as Chancellor Secretaries Privie Counsellors and Lords of Sessione thrusting out protestants to make roome for papists and Intrusting the forts and magazins of the Kingdome in ther hands.”

The list of grievances was long and intensely drafted. James was accused of imposing oaths contrary to law; keeping a standing army; imposing judges on people who were tried and “put to death” without a jury or record of the trial; imprisoning people without saying why and delaying their trials; sending letters to the courts telling judges how to do their job and getting rid of them when they did not comply.

Of course, James VII did not do all this personally, but it was his officials who carried out the list of injustices, including: “Subverting the right of the Royal Burghs The third Estate of Parliament imposeing upon them not only magistrats But also the wholl toune Councill and Clerks contrary to their liberties and express chartours without the pretence either of sentence surrender or consent so that the Commissioners to Parliaments being chosen by the magistrats and Councill The King might in effect alswell nominat that entire Estate of Parliament and many of the saids magistrats put in by him were avowed papists and the Burghes were forced to pay money for the letters Imposeing these illegall magistrats and Councils upon them.”

The law-making clauses in the Act mirrored the grievances, and here’s a short summary of what was imposed on William and Mary – again, read the whole Act on legislation.gov.uk if you want to see the full picture.

Allowing the practice of Catholicism and the printing of “popish books” was contrary to law; dismissing Protestants and employing Catholics was contrary to law; imposing judges on the country, imprisoning people without reason and charging exorbitant fines were also contrary to law.

There should be no taxation without the consent of Parliament, and the burghs should have their rights and liberties back; citizens should have the right to petition the monarch; bishops should be banned in the Kirk: and much more besides.

READ MORE: Michael Fry on David Hume's A Treatise of Human Nature

As with the English Bill of Rights, the Scottish Claim of Right stated: “That for redress of all grievances and for the amending strenthneing and preserveing of the lawes, Parliaments ought to be frequently called and allowed to sit and the freedom of speech and debate secured to the members.”

For the Convention, the most important clause was the first one: “That by the law of this Kingdome, no papist can be King or Queen of this realme nor bear any office whatsomever therin nor can any protestant successor exercise the regall power untill he or she swear the Coronation Oath.”

That’s why Charles III was so quick to take his oath to protect the security of the Church of Scotland.

William II and Mary II duly accepted the Crown of Scotland on May 11, 1689, and specially chosen commissioners administered the coronation oath. There never was a Scottish coronation.

The Claim of Right became the law of Scotland, and though William never enjoyed good relations with the Scottish Parliament, he did carry out the intent of the Claim of Right in so far as bishops were abolished in the Church of Scotland, even if the King never totally gave into the Presbyterian demands.

Mary, by the way, kept largely out of the arguments and, having suffered miscarriages, her main concerns seem to have been giving birth to an heir and keeping the peoples of their kingdoms at peace before she died in 1694 at the age of just 32.

The truth is that the British propaganda down the decades that the Glorious Revolution immediately brought in the concept of limited or constitutional monarchy is simply not true – it took many years for the concept to work, and William in particular made public his unhappiness at the controls on his power.

As I stated last week, much of what drove William on in his pursuit of the two crowns was his desire to get English and Scottish resources on his side in his long war with Louis XIV of France, and while England had vastly greater wealth, William very much wanted Scottish fighting men in his army.

He had considerable experience of the quality of Scottish troops, particularly the Scots Brigade commanded by General Hugh Mackay of Scourie who led the Scottish contingent that came over with William and Mary for their invasion of England.

William and Mary had somewhat bigger issues to deal with as 1689 wore on. John Graham, Viscount Dundee, who had once served under William in the Dutch Scots Brigade, led an open rebellion by Jacobites in the summer of 1689.

They defeated the Williamite government’s army commanded by General Mackay at Killiecrankie on July 27, 1689, only for Bonnie Dundee to be killed at the moment of triumph.

The Jacobites were in disarray, and three weeks later, they failed to defeat a much smaller army at Dunkeld where the Cameronians fought with passion and distinction to effectively end the rebellion.

The following year saw James VII fail to beat the forces of William in Ireland, and while he quarrelled with the leaders of the Scottish Parliament, there was no doubt that William II was in charge. Slowly but surely the new king reached arrangements with the Scottish leadership though his role in authorising the Massacre of Glencoe in February 1692, hugely damaged his reputation.

It is often said that the Claim of Right presaged the Act of Union in 1707 but so much happened in Scotland in the 1690s and the first few years of the 1700s that the evidence is not established as to whether the Claim of Right really kicked off Unionisation.

As a law that harked back to the 1320 Declaration of Arbroath’s popular sovereignty, the Claim of Right is very important, but I suspect that looking at it as a way of bringing about a second independence referendum will not wash with the UK Supreme Court or this Tory government.