My reasons for legal action, which must be taken, to purge the Constitution of Canada of the Act of Settlement 1701, remains as part of my ‘unfinished business’ from my days in local politics. It has troubled me since 1977, when I first realized that it was part of the British North America Act - our ‘constitution’ at that time.

A constitution, as I understand it, lays out in written form, fundamental laws and principles, so that all citizens can live and work in harmony. The wording should arouse the spirit and set lofty goals to foster and instill love of country, equality, tolerance and justice for all, within a general framework for the management of the nation’s business.

But our new repatriated ‘constitution’ of 1982 does not meet the standards we expect for a modern state. Although it included a Canadian Charter of Rights and Freedoms, which is laudable, it fouls the Constitution by retaining the Act of Settlement 1701, a 300 year old English Statute, which goes to great length to set in law that all Roman Catholics or anyone married to a Roman Catholic are "made forever incapable to inherit possess or enjoy the crown and Government of this Realm and Ireland and the Dominions thereunto belonging or any part of the same or to have use of any regal power authority or jurisdiction within the same."

It is important that the origins of the Act of Settlement 1701 are explained, as few Canadians know anything about it.

In the 16th, 17^th, and 18^th centuries, battles over land and religion dominated Europe - particularly in the two islands. At that time, war was also a commercial venture with wealthy businessmen investing in armies. Victory meant the eviction of many people and the acquisition of their property, which would then be granted, sold or rented to new settlers who supported the winning side.

Following Oliver Cromwell's suppression of the rebellion of 1641 and the introduction of new settlers, land ownership became the most contentious issue in Ireland. The first Act of Settlement was passed in 1652 to legalize the granting of lands to those who supported Cromwell, his backers and the men of his invading army. Many of those who fought against him were executed while those who did not show 'constant and good affection' to his authority were evicted from their lands and sent to County Clare and the Province of Connaught - the poorest part of the island.

After the departure of Cromwell and the restoration of the monarchy in 1660, the severity of the Act was somewhat lessened in 1662 when a 'poor law' was introduced to control the vagrancy of the dispossessed. It provided that a person having no land or work could return to his or her native parish to seek shelter and employment. But by then, the seeds of religious intolerance and land conflicts had taken firm root.

Winston Churchill in his ‘History of the English Speaking Peoples’ describes Cromwell’s legacy as follows - ‘By an uncompleted process of terror, by an iniquitous land settlement, by virtual proscription of the Catholic religion, by bloody deeds he cut new gulfs between the nations and the creeds’.

Following the turmoil of the settlements and constant revolts, 'penal' laws were added to curtail the rights of the native Catholics. The bitter and bloody conflicts between Protestants and Catholics led to much violence and terror and the principles of the Christian religion were put aside as sectarian violence, with unspeakable acts of savagery, consumed the land. These were terrible times. Religious intolerance became part of land claims and the working nature of government. And the monarch decided on policies to control the distribution and ownership of the land.

Towards the end of the 17^th century, the final onslaught was on - to ensure that Roman Catholics in the two islands were stripped of their rights and squeezed out of their properties. To cap it off, since William III and Queen Mary had no children, Parliament introduced the a new Act of Settlement in 1701, mainly to enshrine in law that no Catholic ever became monarch or that the monarch could not marry a Catholic. That very same Act is part of our constitution!

Although the Act of Settlement 1701 dealt with other items, it is mainly known for its lengthy anti-Catholic content. In its original form, among other things, it required that the monarch not leave England without the approval of parliament and that parliament had no obligation to engage in wars for the support of the monarch’s foreign possessions (later repealed), that judges would no longer hold office at the pleasure of the monarch but quam diu se bene gesserint - ‘as long as they behaved themselves’, (instead of durante bene palacio regis - 'at the monarch's pleasure'). This latter part of the Act - one short paragraph - introduced the independence of the judiciary. It has been the most redeeming feature of an otherwise relic of institutionalized bigotry.

As a young man, and a keen student of history, I was very much aware of the divisive role of religion in politics, the ownership of land as well as the hereditary monarchial and nobility system. The plight of the Hugenots and their expulsion from France; the Inquisition in Spain and the sectarian battles in Britain and Ireland are but a few examples of how terrible those tormented times have been. History was really all about such things. It was a litany of bloody battles, where the forces of monarchs slaughtered each other as ordinary individuals were used as ‘cannon fodder’ in the battlefields of Europe. All in the name of one brand of Christianity or the other.

As a student, I was influenced by the events leading up to the American Revolution and finally the Declaration of Independence in 1776. This was followed a few years later by the Storming of the Bastille in Paris in 1789, which ignited the French Revolution. These were turbulent times as monarchies were being challenged in an attempt to improve the rights of the ordinary individual.

Although I admired Edmund Burke's support for the American Revolution, I found his "Reflections on the Revolution in France" self-serving in that he opposed that revolution and supported his privileged class by emphasizing 'freedom within the limits of imposed constitutional continuity'. My sympathies were more aligned to the thinking of Thomas Paine as outlined in his publications "The Rights of Man" and "Common Sense". I found myself, therefore, particularly at university, always ready for a good debate on the privileged ‘classes’ and the hereditary monarchial system.

My reasoning, I felt, was clear. Hereditary titles had no place in a modern democracy. The position of head of state should be open to any citizen, without reference to colour, creed, race, gender or such other obstacles, which would deny basic rights and freedom. Religion, or the lack of religion, should not be a barrier to reach the highest office in the land. And, the separation of ‘church and state’ was fundamental to the well being of any democracy.

When I was first elected to the City and Municipal Toronto Councils in 1966, because of my Irish brogue, many people would ask me to explain the 'troubles' in the North of Ireland. That was a tall order. And it was a little irritating as there was no short answer to that question and I was no expert. But I tried to explain as best as I could. I knew that all the 'troubles' began hundreds of years ago with the introduction of settlers who were selected because they supported the religious views and property ambitions of their masters from the larger island. ‘Penal’ laws were then drafted to accommodate the settlers at the expense of the natives. And so, began the 'troubles'.

I had thought that all these unjust laws had been repealed or replaced in Canada over the last one hundred and fifty years. The Emancipation Act of 1829, which gave Catholics the right to vote and hold a seat in Parliament was a turning point for equality. But, I later found out one of these old laws, still in use today, was enshrined in our constitution.

I had not thought too much about the Act of Settlement 1701, until I met Lady Iris Mountbatten in 1977. Frankly, like most other unjust medieval laws, I thought it had melted away like last year’s snow. But Iris reminded me that it was still being used. My book, "Front Row Centre", in a chapter - " Lady Iris Mountbatten, Act of Settlement 1701" - describes more graphically the use of the Act.

At the urging of some friends and constituents, I wrote to Prime Minister Pierre Trudeau on July 10, 1980, suggesting that the Act of Settlement 1701 be reviewed when the re-patriation of the constitution was being considered in the early 1980s. But a letter from Mr. Trudeau's office on October 27, 1980, was non-committal and only acknowledged receipt of my letter.

On February 3, 1988, I wrote to Governor General Madame Jeanne Sauve, seeking her assistance. In a letter dated February 18, 1988, her office advised me that the Act of Settlement 1701 was under the jurisdiction of the Federal Government and referred my letter to the Prime Minister's office.

I wrote to Prime Minister Brian Mulroney on December 5, 1988. In a letter dated January 17, 1989, his office referred me to Margaret Thatcher, saying that since the Act was the responsibility of the British parliament, it would be inappropriate for the Canadian Prime Minister to interfere.

On February 18, 1989, I wrote to all the provincial premiers. Seven premiers replied - mostly to acknowledge my letter, with little other help or information.

On September 8, 1997 and again on February 10, 1998, I wrote to Prime Minister Tony Blair requesting that the Act be 'cleaned up'. The reply from the British Home Office was a little more encouraging than the public negative outburst earlier from Margaret Thatcher stating that she would not change the Act.

On December 31, 1999 - the last day of the 20^th century and the last day of the 2^nd millennium, like many others, I thought about our journey into 'the new age' - across a unique milestone in time - to the 3^rd millennium. What would it bring? And what could we do to provide a fitting legacy for future generations?

I thought of the major problems confronting our species and what had to be done. I thought about our voracious appetite for the planet's non-renewable oil and gas resources, as we know them. These resources, which took more than 300 million years to develop, will be depleted in the span of 200 years - from the beginning of the industrial revolution in 1865 to 2065 - just a tiny spec in the calendar of geological time. There would be little left for future generations by mid century.

I thought about the use of coal, which would then provide fuel for most of the 3^rd millennium. This would result in the planet becoming more polluted - fouling the basic elements of life - air and water.

I thought about other human activities, which contribute to the overall degradation of our natural environment and the acceleration of global climate change. And, I thought about increasing populations, food and water shortages, refugee problems - all causing great poverty and human suffering.

All these negative projections could be slowed down and many could be changed to give the planet's fragile environment a fighting chance to adjust to the pressures of change, if politicians only had the will and determination to meet those challenges. 

Paradoxically, I realized that the democracy I ardently supported, provided little promise that peoples in the First World would accept real change, which would reduce or interfere with their way of life. But I am a great believer in the ingenuity of our species. We could meet those challenges and adjust to the realities of our planet's limitations if we were not so selfish and thought a little more about the legacy we leave to future generations.

For our part - energy conservation, the efficient use of fuels, alternative energy, water supply and the prudent use of our renewable and non-renewable natural resources - we could offer guidance and a helping hand to the less fortunate nations of the world. If we are to survive as a species our approach to the use of non-renewable resources has to focus on a basic requirement to leave some for future generations. We could all play a significant role and be a part of the solution instead of being a major part of the problem. Our selfishness and squandering lifestyle are the main obstacles. We could change. But it will not be easy.

Then I thought about some legal imperfections, which we had inherited and which were obviously in conflict with the democracy we so loudly supported. Ordinarily, when such laws were discovered to conflict with basic rights, they were withdrawn or replaced with more acceptable legislation. But the Act of Settlement of 1701 stood out as a major human rights issue. It was a relic or snapshot of institutionalized intolerance of days gone by. It had withstood any and all attempts to change over the last 300 years. I thought that it should be easy to change and now would be a fitting time on its 300^th anniversary.

We can honestly say that we have come a long way in the last 300 years in our understanding of democracy with its emphasis on equality, tolerance and freedom. In 1701, those in power divided people along religious, property and class lines. It is an obvious embarrassment for any government today to include the Act of Settlement 1701 in its constitution.

I wrote one letter on December 31, to Prime Minister Jean Chretien about entering the new millennium with a desire to 'modernize' the Act of Settlement 1701 and to approach Prime Minister Tony Blair to embark on a course to change the Act

I did not receive a reply from Mr Chretien. I wrote to him again on March 22, 2001. I thought it would be most fitting if he could begin the process of dealing with the Act of Settlement 1701 before Canada Day, July 1, 2001. It would be a fitting present to the Canadian people.

I received a reply from Mr. Chretien’s office on May 16, 2001, stating - "as the matter you have raised is not within the jurisdiction of the federal government, this office is unable to be of assistance". I was extremely disappointed with that answer.

As I was getting the 'run around' from all the folks in the Ottawa political arena, I soon came to the conclusion that no assistance would come from there. I also found out that most of our MPs were ill informed about the role of the Act of Settlement 1701 in our constitution. I realized, finally, that the courts would eventually have to decide on the appropriateness of the Act of Settlement 1701 as it relates to human rights and our constitution.

If the courts decide that the Act of Settlement 1701 is in contravention of the Canadian Charter of Rights and Freedom, it then opens up the whole question of a 'Canadian' monarchy. I would welcome that as we could freely discuss the structure of our democracy and decide whether we, the Citizens of Canada could democratically choose our own head of state or continue to be some form of shared monarchy with an absentee monarch.

I have not sought the involvement or discussed the Act of Settlement 1701 with any church officials or representatives of any religious organizations. I believe the arguments against the Act stand on their own.

With your support, I look forward to a successful outcome.

Tony O’Donohue