Thursday, 15 November 2007

On the Queen and revolution: he who has ears, let him hear...

In response to my last post, I have a message from a correspondent called Viator Catholicus, who says:

"It is lamentable that you are so protective of the Queen of England on a site devoted to 'Roman Christendom'.

Of course, she is a figurehead with no power. But, then, what purpose does she serve? Should she not at least assert some moral authority?

Can she not refuse to sign the abortion bill to avoid any appearance of cooperation? You also made some points about the illegitimacy of Revolution.

However, the pope can certainly call for Revolution against a regime which he by his authority declares unlawful. By the way, was not the legitimate English monarch overthrown in 1688 by a the invasion of a Dutch king in alliance with certain English traitors?"

The last two questions seem to me perfectly good and fair ones and I shall try to answer them later.

Sorry to say, however, the Queen-related question is precisely an example of the very kind of parroting and re-parroting about which I complained in my previous post.

It is also self-contradictory. How can one say "the Queen has no power" and then, in the same post, say she should exercise her (non-existent!) power to refuse to sign legislation?

One cannot have it both ways.

I have VERY FULLY answered the Queen-related questions numerous times over.

How is asking and re-asking and re-re-asking and re-re-re-asking the same question that has been answered several times over, helping to resolve the issue or even explain an alternative position?

If anyone disagrees with my answers, ah, well, that's quite another thing. But then they must tell me WHY they disagree and WHAT their REASONS are.

Simply repeating the question that has already been answered several times over just looks, I'm afraid, like mindless barracking - even of the "4 legs good, 2 legs bad" variety that George Orwell lampoons so effectively in Animal Farm.

I can but say to Viator: go and read my earlier replies to people who have asked the self-same question. They can be found under "comments" at the end of each post.

In short, no, the Queen is not just a figurehead and, no, she is not devoid of all power. She has very limited but still very important power to act against a rogue government (e.g. one that banned elections) or, perhaps, to resolve a deadlock that the courts did not otherwise have the jurisdiction to resolve.

I am open to persuasion that I am wrong about that or have got the law wrong but challengers will need to point to some counter-authorities since this is the view accepted by, for example, Erskine-May on Parliamentary Procedure.

These are vitally important powers protecting us from tyranny and dictatorship. But they are very limited, "port of last resort" powers.

If this is right, then the Queen simply does not have the power to refuse other legislation. If she tried to do so she would be acting illegally and when a head of state acts illegally this is called a coup d'etat or palace revolution.

In Roman Catholic theology no-one has the right to instigate a revolution or rebellion against a superior, unless the same has been legitimately and lawfully authorised by someone more superior still.

Now the Queen is not above the law or the Constitution. The law and the Constitution are above her and she must obey them both.

As the late Lord Denning, former Master of the Rolls and former Lord of Appeal in Ordinary, put it "Be ye never so high, the law is above you".

One may not like that situation and may prefer that she be a Monarch in the old mould with much wider powers but that is not our current Constitution.

And neither we, nor the Queen, have the right to overthrow that Constitution by unilateral illegal acts or a coup d'etat.

She could not, therefore, "refuse to sign the Abortion Bill just to avoid any appearance of co-operation". If she did so she would be overthrowing the Constitution and would thereby be sinning. And one may not do evil that good may come of it, as St Paul says (Rom 3:8).

We may use legitimate constitutional means to change the Constitution such as campaigning for a change but we cannot use illegitimate, unconstitutional means. That is sin.

It is Roman Catholic teaching that Catholics may not rebel against their superiors and overthrow their legitimate governance, even if that governance is oppressive or immoral.

Some Catholics have got it into their heads that Catholic teaching permits such rebellion. It does not.

The reasoning is simple enough: a subject does not have the right to sit in judgment upon his superior, for if he did have, then there would be no authority at all since any subject could, at any time, aver that the authority was being exercised oppressively and so overthrow it at his own discretion.

In short, that would be an anarchist's charter.

As I have now said, I think, 3 times this is all very clearly explained in De Regimine Principum (On the Rule of Kings) by St Thomas Aquinas, citing proper authorities.

I am open to persuasion that the Queen DOES still have more residual prerogative powers than I have stated but, to be persuasive, I think it would be necessary to point to some recognised legal or constitutional authority that says so e.g. Erskine-May on Parliamentary Procedure or Dicey or perhaps Professor Vernon Bogdanor of Oxford or, of course, some decision of the higher courts.

To answer the remainder of Viator's questions, which I believe are good and fair ones, I say this: yes, the Pope, if it can still be said that he is superior to the Queen, could authorise her overthrow or that of the Constitution.

But does he still have that superior power?

I rather fear that he does not. If any superior power now exists it might exist in international law but I suspect not in the Pope. Indeed, the Pope claims no such power any more.

I am open to persuasion on that point, however.

As for the Dutch invasion yes, that was certainly illegitimate, indeed, a very good example of an unjust rebellion against a legitimate and lawful authority - treason or treachery, in short.

That new government was illegal and could legitimately be opposed and overthrown by anyone, not least Catholics. That, indeed, is what Jacobites tried to do by the Jacobite uprisings of 1715 and 1745, which were legitimate uprisings against an usurped authority and undertaken with the aim of restoring the legitimate king and constitution.

Such a restoration is expressly permitted by Catholic teaching since the subject is not judging its own legitimate government for the very simple reason that the government is not legitimate since it usurped power, itself, by a revolution. An usurped power has already judged itself, just as a robber has put himself in the wrong and may then be lawfully apprehended, preferably by the Police but, if necessary, by any citizen.

The Jacobite uprisings failed, sadly.

Eventually, the Jacobite pretenders ceased to press their claim and the Cardinal Duke of York eventually transferred the royal heirlooms to King George III.

For the other reasons why the Jacobite claims can no longer be seriously pressed, albeit their memory and principles ought still to be honoured and upheld, see my earlier and first post on the subject, To Lochaber No More...

This being so, from the time of King George III, the Hanoverians became the legitimate British royal dynasty. Moreover, the popes began to recognise them from around that time.

For this reason, among others, the American Revolution of 1776 was also an illegitimate one. It did not seek to restore the legitimate Stuart dynasty but, instead, basing themselves upon heterodox Protestant and secularist ideas, subjects of the King expressly claimed to sit in judgment on their lawful superior, the King himself, just as Cromwell had earlier illegally done.

Such rebellions are expressly forbidden by Catholic teaching.

However, once again, the legitimate dynasty ceased to press its claims to rule America and against the American revolutionary government, so that, eventually, that government, too, gained legitimacy and, after a time, it would have been disproportionate, and therefore a sin, to rebel or make war against it.

So much is no more than Roman Catholic teaching on the subject of just or unjust war and just or unjust uprising.

In the same way that a just war is no violence, so a just uprising is no rebellion. Rebellion and violence are sins. Legitimate restoration by proper, reasonable and proportionate force is neither violence nor rebellion but, as its name implies, a just and lawful restoring of the true and legitimate constitution - a bit like the Police apprehending a terrorist by minimum and proportionate force.

This is our faith.

...

6 comments:

Viator Catholicus said...

Thank you for treating my questions. However, I will first disagree with your final bold assertion, "This is our faith." Perhaps it is a theological opinion or, at most, a common teaching to which religious submission of the mind and will can be required, but it is not something that demands an act of faith!

Unfortunately, my distinction of power (potestas) and authority (auctoritas) was not noticed. Perhaps I am wrong to make a distinction. Surely, I am at fault for not explaining the distinction. However, I had in mind, Our Lord Jesus Christ, the King of Kings, Who, although He often spoke with "authority," did not exercise His kingly "power" by taking the throne from Herod or even Caesar.

You wrote, "She could not, therefore, 'refuse to sign the Abortion Bill just to avoid any appearance of co-operation.' If she did so she would be overthrowing the Constitution and would thereby be sinning. And one may not do evil that good may come of it, as St Paul says (Rom 3:8)."

This is an outrageous that you misuse Scripture. In fact, signing the legislation is the objectively evil act because it is formal cooperation and an act of scandal (I do not judge her subjective conscience). One cannot do the "signing" so that "good" may come!
The Queen has free will to choose the action of signing or not. Even if her office were to demand her to sign it, she is responsible before God first. Moreover, as the governess of the Anglican Communion, one might argue she has a responsibility to refuse to sign such laws on the grounds of conscience.
Would her non-signing be an actual legal act og "overthrowing the Constitution?" If so, then she might even decide to abdicate rather than sign the evil law.
Remember that according to St. Thomas and Catholic teaching a law must be in conformity with right reason. If not, even though called a "law" commonly, it is no law. But by elevating a state "law" and constitution above the law of God, you seem to make sinners out of "the martyrs who were the king's good servants, but God's first" and refuse to obey the king when he demanded evil of them.

At another point, you claim, "If any superior power now exists it might exist in international law but I suspect not in the Pope. Indeed, the Pope claims no such power any more."
This statement, which I believe you do not hold firmly is not worthy of "Roman Christendom." It muddles theological principles with positive human law.

You yourself said an inferior cannot rebel against a superior. How can anyone deny the Pope a prerogative which flows from his munus regendi. Certainly, the Pope always objectively remains Vicar of Christ upon earth, even when not recognized as such by positive human law. Certainly, he has the power, by divine sanction, to depose governments, even if he prudentially decides not to exercise that power. This is not a power that can be stripped away by constitutions or the desires of men. Moreover, he need not assert it for it to continue to reside in him.

Thank you again for allowing me to post my comment.

Tribunus said...

Dear Viator,

I realise I have the upper hand since this is my blog and I can always reply, which may seem unfair.

However, your response still does not understand my argument. Further, you cite no sources or authorities and all is but your own view - yet you speak as if all authority sided with you. But does it?

Your first point is overly technical. My view is supported by the best authorities: popes, Councils, St Thomas, St Robert, St Alphonsus and many others. It is not dogma, I grant you, but it is a matter of faith in the broader sense. It derives from the Commandment which commands us to honour our parents which includes all legitimate political authority.

If you disagree, find me an authority that says otherwise.

You are indeed right that our Lord did not take the throne from Herod or Caesar. That entirely supports my point! The King of Kings knew that Herod and Caesar were in error, conducted themselves oppressively, treated their colonial subjects, the Jews, ill and made laws that, by the law of God, were no laws. But did He succumb to the Hebrew zealots who pressed him to overthrow the oppressor? No, indeed, He did not. He expressly refused to do so precisely because they were the legitimate authority however much they made oppressive laws.

That is precisely my point!

And, moreover, our Lord Himself, His disciples and many others were grievously persecuted by those same legitimate authorities behaving so ill. What was His response? Rebellion? Coup d’etat? Overthrowing Herod and Caesar and replacing them with Himself or His appointee?

No.

As to the Queen’s powers, I cannot keep repeating arguments that you do not address. If you address them then I will be able to respond.

You say that signing the legislation is “the” objectively evil act, as if there were no other. That is, with respect, your mistake. To overthrow the Constitution is also an objectively evil act. And one cannot do THAT evil to avoid the other evil. That is no misuse of Scripture but a correct application of it.

Or are you suggesting that it is no objective evil to overthrow the Constitution?

If you are, you will not have the support of any orthodox Catholic theologians.

You have missed the point since you say “One cannot do the ‘signing’ so that ‘good’ may come!”.

That is not the “good” that is sought. The good that is sought (by you) is NOT to sign. But for the Queen to refuse to sign is for her to exercise a power she does not have. It is to seize a power that the Constitution does not give her. And to seize power that one does not have, in order to reject the laws passed by a democratically-elected Parliament is to do grave evil to the State and Constitution. It is a coup d’etat.

THAT is the evil that may NOT be done in order to achieve the good of blocking the Abortion Act.

And THAT is the point that you – persistently – do not see.

The Queen certainly has the free will to refuse to sign and to reject the Constitution but that is not the point. The point is that rejecting the Constitution is, itself, evil, and if the Queen did so she would be using her free will to do an evil act (albeit to achieve a good i.e. the blocking of the Abortion Act).

There is no principle of double effect applicable here because for PDE to apply, the deliberate act must, itself, be good and overthrowing the Constitution is not a good.

Her governorship of the Anglican Communion adds little to the matter.

You are on better ground when you ask “Would her non-signing be an actual legal act of ‘overthrowing the Constitution’?”

Most of the Constitutional authorities say so. But you may be able to find some that gainsay them and claim that the Queen still has real power to refuse legislation if it offends her morally or in any other way.

I fear that you will have considerable difficulty finding one. But good luck. I shall, of course, be very interested if you do.

You next say that she might abdicate but again it is at best doubtful whether she has that right under our Constitution, save by the advice of her ministers. Again if you can find a contrary authority then I would be very interested to see it.

Further, if she were to abdicate then how should her replacement act? If he or she, too, ought to resign and so on with the next in line, then the Constitution would certainly be, again, overthrown since no-one could be Monarch since, by your calculus, they would all have to abdicate to avoid signing. And if replaced by a President, he or she would also have to resign to avoid signing. In short there could no longer be any head of state. And that, most assuredly, is an overthrow of the Constitution.

You falsely accuse me of elevating a state law above the law of God. I do no such thing. Indeed, I cite the law of God which expressly forbids us to overthrow a legitimate ruler or Constitution, even if his laws are contrary to those of God.

And, in that, I follow our Lord’s own, personal example, when He refused to overthrow Herod or Caesar, despite being invited and despite the fact that their laws were evil. And our Lord, as God, had a better right to overthrow them than ever the Queen could have. Yet He did not. Indeed, He allowed them to crucify Him.

Far from me making sinners out of martyrs, it is your hypothesis that does so for you would have the martyrs – and our Lord Himself – sin by overthrowing the state.

If the Queen had the personal constitutional power and right to refuse legislation then you would be right. But she does not. Her powers to refuse are limited to the utmost extremity. They are not (as some have falsely claimed) non-existent powers but they are limited to the very rarest situations.

As to your last point, it is not I but you who muddle theology with human positive law.

There is no defined dogma of the Church that says the Pope has an absolute, or indeed any, right to depose sovereign powers.

It was a power that subsisted by reason of positive law, not dogma. It was a power thought to have been conceded by the Roman emperors to the Roman pontiffs, at the time of Constantine and later re-affirmed by Charlemagne.

The Pope has the right to judge spiritually and has the inalienable right to ex-communicate a sovereign; but he does not have an inalienable right to depose a sovereign politically.

The Pope certainly does have the "munus regendi” but that is primarily a power of spiritual governance (save for the temporalities that are inseparable from that spiritual power).

The Pope’s temporal power is a largley contingent power not an absolute one. He was given it over what became the Papal States and he claimed to have been given it by the Roman Emperor Constantine.

But even in the High Middle Ages, the extent of the Pope’s power of deposing sovereigns was much disputed and controverted.

To suggest, as you seem to, that the Pope is somehow less than the Vicar of Christ if he relinquishes the power to depose kings, seems an extravagant claim.

If, however, you can point to an authority (Council, pope, Doctor etc) which supports your view then, of course, I would be very interested.

Viator Catholicus said...

Dear Tribunus,

In regard to your recent response to my posting on your comment page, I wanted to add some of my sources.

First, I think it is important to be technical in matters that are de fide and those which bind under religious submission of mind and will. My sources for this include Ludwig Ott's Fundamentals of Catholic Dogma and Ad Tuendam Fidem of the CDF.

Then, let me say I do not think I disagree with you on the issue of rebellion in general. (In the case of the signing, I am flabbergasted each time I read that the Queen's failure to sign would be an act of rebellion. It seems a demonic perversion of the concept of kingship to constrain a monarch to rubber stamp even evil laws. It would seem better to end the charade and have no "monarch"!)

As authority for the Pope over princes, I cite the Dictatus Papae Of St. Gregory VIII and Unam Sanctam of Boniface VIII. (I think he theoretically retains the power as Head of the Church, but would require help of the "Arms and Feet" of the Church in enforcing it. Thus, his exercise of this power would be imprudent and impractical with the demise of Christendom.)

Concerning Our Lord's sacral Kingship, He tolerated evil men and evil laws and did not press His rights for our spiritual salvation. However, He never agreed with their evil policies and he rejected the devil's worldly view of kingly power. He even told His disciple to not be like Gentile kings lording it over each other. And unlike modern kings, He also renounced every worldly pomp of royalty because His kingdom is not of this world. His will was to do the will of His heavenly Father and so He introduced a higher law than the law of tyrannical governments - a law of grace by which can live in the midst of evil in this passing world without staining our soul by actively cooperating with evil. This is what the apostles did in refusing to stop preaching Christ when commanded by the legitimate government. The early Christians were also declared traitors for failing to join the army or to show reverence to the Emperor's image, an act with civil implications.

St. Thomas Aquinas (who shares his name with St. Thomas More!) treats Law in ST 90-108 with a focus on Human Law in q. 96. Human law can be good and we are bound by it. But Q 96 a. 4 notes that unjust human laws are not binding in conscience. Certainly murder of the innocent by abortion is unjust. Thus, perhaps the argument should be whether Parliament is overthrowing the Constitution by an unjust "law." Would the Queens refusal to sign so as not to cooperate in the evil have been an upholding of the Constituition in such a case?

Finally, you do make an interesting case for the finis operis of the Queen, however, I still am not convinced to cede my own understanding.

Thank you again for hosting my comments.

Tribunus said...

Thanks, Viator,

Thanks for your comments.

With respect, you make a common mistake and assume that a different set of rules must apply to a head of state who is called king or queen than to one who is called by some other name.

The name of the head of state makes no difference: he does not have powers that do not belong to him.

You seem to think that swapping a monarch for some other kind of state with a different name solves the moral problem of signing laws.

I don’t quite know why this relatively simple idea seems so hard for some to grasp.

The demonic perversion consists in requiring a head of state to seize power and overthrow a constitution.

Again I do not know why this should be so difficult an idea to grasp.

I suspect that you have but one idea or concept of monarchy in your head and that is monarchy with wide power. But the British monarch is not such a monarch.

You think this a “charade” (which most certainly it is not) but why is it any more of a charade than a republican constitution that requires the president to do the same thing? How is it any more of a charade to call a president “head of state” when he or she has virtually no power, either.

The fact is that most jurisdictions have a head of state, even if only for ceremonial reasons. There is a need for such a figure. It is not a charade. There is a job to be done. Most constitutions give that head of state some final and residual power to prevent the Constitution being ultimately subverted.

It really amounts to not much less than a kind of blind prejudice and bigotry to think that this system must be abolished if it is exercised by a person called a monarch but is fine if it is exercised by some other sort of head of state.

I don’t think it is logical. It is perhaps cultural or psychological.

Perhaps some people have been brought up on fairy tales about kings and queens and princes in castles who order subjects about with largely untrammelled power. Thus they think this is how all monarchs should be and can’t get their heads round the idea of a restricted constitutional monarchy.

Or perhaps they have some romantic notion about revolution which, in their mind’s eye, requires some supposed villainous monarch to rebel against.

I don’t know what causes this kind of bigotry but it is profoundly anti-rational.

You offer no further argument, still less authoritative sources, in support of your view on the monarch’s power and duty so I can't really say any more.

On the pope’s power over princes, you cite St Gregory VIII and Boniface VIII.

Dictatus Papae is not an exercise of papal infallibility nor even a statement of canon law but rather a statement of Hildebrandine policy in relation to the Investiture controversy.

It represents part of Hildebrand’s seeming attempt to adjust the ancient doctrine of the “Two Swords”, the temporal sword exercised by the Emperor and the spiritual sword exercised by the Pope.

His policy was partly understandable in the face of arrogations of power by medieval kings but it was also an arrogation of power in itself since he seems to have regarded himself as having both papal AND imperial power.

Boniface VIII was, if anything, even more extreme, and, recalling the scene in which he sat in the imperial throne repeatedly shouting “I am Caesar” to the amazement of all - not least the Emperor - it seems that he intended to dissolve the "Two Swords" doctrine altogether which was an unwarranted attempt at the aggrandisement of papal power.

Nonetheless, there was general agreement in the Middle Ages that the Pope had the power to absolve subjects of their fealty and to depose kings and emperors.

Whether this power is to be held as part of the Depositum Fidei is, however, by no means as clear as you seem to think.

Thus his current forbearance to exercise such a power is not merely a question of prudence and practicality but as much an acknowledgement that the power no longer applies generally as it once did, and that by human positive law, rather than divine law.

Your discursion on Christ’s kingship I largely agree with but I do not see its relevance to the issue at hand. If you are trying to suggest that Christ abolished earthly kingship you are certainly wrong. He did nothing of the sort as the Church itself teaches.

If you are merely saying that no government may order its subjects to do evil, you are also right but, again, how is that relevant to this argument?

The Queen does not do evil when she signs a law because, in signing that law, she is not exercising any freedom to endorse or reject that law. She has no such freedom. Her signing is not a free act on her part but merely an acknowledgement that Parliament has passed a law. The only exceptions are the extreme situations to which I referred and which now represent her only real power.

The fact that it is called “Royal Assent” is now a legal fiction, save in those extreme cases. Then, and only then, does the Queen retain any discretionary power.

Other than those situations her signature is now no more than a “Royal Acknowledgement” or a “Royal Receipt” rather like signing a DHL receipt to say that you have received the delivered parcel.

Now, it might be very nice and good if the Queen had more power than that and exercised it to block an abortion bill. But she doesn’t.

The royal power was radically attenuated by the Civil War and the Bill of Rights and further inroads continued to be made thereafter by a now powerful Parliament.

However much one may regret the Roundhead rebellion and the Whig Revolution, they won and the Royalists lost and it is now far too late to reverse the constitutional situation. Indeed, even to try would now be a revolution of its own and thus sinful.

Now try as you might, you simply cannot blame Her Majesty Queen Elizabeth II for this situation!

And by the way, the early Christians certainly DID serve in the Imperial army. There was more than one Roman Legion that were largely Christian.

Legio XII Fulminata (“The Thunderer”) was replete with Christians famously including the martyrs of Sebaste. Perhaps the best example was the Theban Legion of Eqyptian Copts who were said to have been martyred to a man by Diocletian for refusing to attack fellow Christians.

Their Legatus (commanding general) was St Maurice, later to become the black African patron saint of the Holy Roman Empire.

St Thomas himself answers your last question in the book I have now recommended more than once: De Regimine Principum.

He makes it quite clear that, whilst an unjust law is no law, morally speaking, and so it cannot bind and one should not obey it, that does not give us the right to overthrow the state or the prince who produced such an immoral law. It only gives us the right to refuse to obey such a “law”. We are not then disobeying the law because this “law” is, in fact, no law at all, morally speaking.

Likewise, the Queen, whilst she should certainly regard the abortion law as no law at all – morally speaking – she cannot break the legitimate laws (i.e. that which forbids her to exercise the Royal Assent as she pleases) in order to nullify the immoral “law”. That would be doing evil that good may come of it.

Thus the abortion law remains a human positive law but, in the sight of God and good men, it is really no law at all.

One must not, therefore, obey that law if it requires you to participate in an abortion or connive at an abortion but the existence of such an immoral law does not give the subject the right to overthrow the state or the constitution.

For the same reason the Queen does not have that power.

I hope that is helpful.

Amazed at such nonsense said...

Tribunus, it is rare to hear such a vacuous argument advanced so tediously at such length. It is hard to believe that such nonsense is your real view, and I can only think that you are winding up your readers. If so, it is very funny. If not, then Charlie Brown's immortal words (which I am sure you know and therefore don't need to repeat) more than adequately express my view and the wonderment of anyone reading your blog...

Tribunus said...

Dear Readers,

I decided to include this last comment from an anonymous person of no name, no argument, no manners and nothing whatever to recommend him, as an example of the mindless prejudice that all too many are unable to shake off when considering this subject.

If this is the best we can expect from the opponents of monarchy, and the Queen in particular, then she is as safe as houses.

Her opponents have, it seems, no arguments - only insults.