I received the following post from Fr Francis Marsden, esteemed columnist in The Catholic Times of Britain and a learned theologian and scholar.I think it is worth re-printing and then answering, partly for the debate and partly for the eminence of its author.
I have answered all other correspondents in the combox section of my last post and those wishing to read those answers can find them there.
Here is what Fr Marsden says regarding the Queen’s Royal Assent and the Abortion Act 1967:
Dear Tribunus,
Maybe she didn't have the power to veto it, but she could have still refused to sign, because signing it was a form of cooperation in grave evil, and a betrayal of the rights of her unborn subjects.
If the Abortion Act would still have gone through without her signature, then she need not have signed. She could have explained that she was not trying to usurp any power which she did not enjoy constitutionally, but that she wasn't prepared to go against her own conscience.
Her signature gave the impression that she supported this law. Any prosecutions under this law or its predecessors would have been in the form: Regina v. N. giving the impression that the Queen supported whatever law was in force.
King Baudouin of the Belgians showed far more integrity when he resigned from the monarchy for a day, rather than play any part in an abominable law.
I don't think your argument holds water. This was one case where a Christian monarch could have registered a protest. Maybe it wouldn't have made a lot of difference at the time, but it would be something forever remembered.
“To veto” is not the same as “not to sign”. You are equating the two.
best wishes
Fr Francis Marsden
Chorley, Lancs
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And here is my response:
Dear Father Francis,
Unfortunately, you have either not read my previous post or else you have read it too cursorily and so not understood it.
It is curious how many people, on this subject, think themselves experts in British Constitutional law even when they are not lawyers and have never even studied the subject. Sometimes they even claim to know better than constitutional lawyers.
This is, first, an issue of British Constitutional law since we must first know what powers the Queen has before we can call her immoral for not using them. It is a commonplace of moral theology that one cannot commit sin by failing to exercise a power one does not have.
As a matter of constitutional law, the Queen does not have the right or the power to veto any Bills passed by both Houses of Parliament except, by constitutional convention, in a constitutional crisis.
Constitutional conventions are binding constitutional customs and, as St Thomas himself wrote, “custom has the force of law, abolishes law, and is the interpreter of law” (ST I- II, q. 97, a. 3).
Indeed, our Constitution, being unwritten, is made up almost entirely of conventions. That the Queen has no power meaningfully and genuinely to refuse assent (save in constitutional crisis) is affirmed by the principal authorities on constitutional conventions such as the bible of Parliamentary practice and law, Erskine May on Parliamentary Practice.
I provided other authorities. Did you trouble to read them?
Who are you to say that such authorities are wrong?
If they are right, then the Queen does not have the power that you censure her so severely for not using.
How can you censure someone for not using a power they do not have?
Nevertheless, you do – unfairly, unjustly and unreasonably.
Moreover, if the Queen were to attempt to give herself such a veto power, as you claim she ought, then what she would be doing is seizing power.
To seize power is a form of coup d’etat and is immoral.
You know – or ought to know – that one cannot do evil that good may come of it, no matter how great the good. St Paul says so in Rom 3:8. The end does not justify the means.
You thus chastise and rebuke the Queen for not doing evil that good may come. In short, you rebuke the Queen for not sinning.
That is the reductio ad absurdam of your argument.
You are thus quite wrong – as a matter of constitutional law – to say:
- She co-operated in a grave evil.
No she did not.
On the contrary, she played no morally significant part. If she had tried to play a morally significant part, by trying to veto the Bill, she would have sinned by her illegal and immoral attempted seizure of power.
- She went against her own conscience.
No, she did not.
She would have acted against her conscience if she had tried, illegally, to seize power to veto the Bill, which power she does not have any right to.
- She could have explained that she was not trying to usurp any power which she did not enjoy constitutionally.
No, she could not.
In trying to exercise a power to refuse assent, she would be trying to seize and exercise a power that she did not have. That would not have stopped the Bill but would certainly have created a constitutional crisis through an attempted, illegal seizure of power, disturbing the whole constitution for no good purpose and doing so by an immoral and illegal seizure of power.
- Her notional assent gave the impression that she supported this law.
No, it did not.
Her assent is a formality save in a constitutional crisis and thus is not a moral act. No-one can rightly blame the Queen for the Abortion Act. The blame lies with the democratically elected Members of Parliament who voted for the Bill and with those who elected them.
- Any prosecutions under this law or its predecessors give the impression that the Queen supported whatever law was in force.
No, it does not.
Prosecutions in the USA are styled “The People v X”.
Does that mean that all the people necessarily approve the law by which X is prosecuted? No, of course not.
Likewise the Queen does not have to approve, personally, all prosecutions that are styled “Regina v X” or “The Queen v X”.
This is merely a device of constitutional law similar to other devices cited by Blackstone in his Commentaries such as e.g. the Queen never dies, the Queen can do no wrong, the Queen is legally ubiquitous and so on. These are constitutional devices and refer to the Crown in its office and not in the personal capacity of the person holding the office.
I recommend reading Newman’s wonderful satire of a Russian revolutionary who read Blackstone and failed to understand it. It is in the first chapter of his Present Position of Catholics.
You are in danger of making the same comic mistake as the Russian in Newman’s satire.
- King Baudouin of the Belgians showed more integrity.
No, he did not.
He did what he was permitted under the Belgian Constitution. The Queen is not so permitted and does not have the same power. King Baudouin himself recognised this. There is no “integrity” in immorally seizing power.
- This was one case where a Christian monarch could have registered a protest.
No, it is not.
This would certainly not have been, as you term it, a mere “protest” but rather an attempted seizure of power which is both illegal and immoral because one may not do evil that good may come.
- “To veto” is not the same as “not to sign”.
No, that is wrong.
As a matter of constitutional law, to attempt to refuse assent would be the same as attempting to veto. Even if the attempted veto were non-effective in stopping the Bill, it would nevertheless be very effective in creating the very sort of constitutional crisis which the veto power of the Crown is designed to prevent.
It is ridiculous to rebuke someone for not exercising a power to create the very evil the power is designed to prevent.
You might as well blame the Pope for not attempting to start a Crusade against Afghanistan’s Taliban.
He has no practical power so to do and if he were to try he would be doing grave evil in trying to usurp a power he no longer, in practical terms, has.
It would be sin to rebuke him for not so doing, just as it is a sin to rebuke the Queen for not usurping to herself a power that the Crown no longer has.
Thus, you can see, my dear Father, that it is your argument which does not hold water.
I hope you will pray for the Queen and pray for reparation for any time that you have unjustly attacked her good name in connection with the Abortion Act or any other legislation which you might have wrongly blamed her for not vetoing.
Put the blame where it belongs: with those members of Parliament who voted in such legislation and those who voted for them.
Do not blame the innocent.
Best wishes,
Tribunus.
St Thomas Aquinas was a great promoter of constitutional convention and custom and wrote that "custom hath the force of law, abolishes law and is the interpreter of law".
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