Thursday, August 09, 2007

An English constitutional question

Reading through Bishop Moorman's book on English church history, I came across a question that perhaps our friends across the pond or someone else in the know may be able to help me with.

The Magna Carta, after the introduction, begins thus:

"First, that we have granted to God, and by this present charter have confirmed for us and our heirs in perpetuity, that the Church of England [Anglicana ecclesie] shall be free, and shall have its rights undiminished, and its liberties unimpaired. . . . This freedom we shall observe ourselves, and desire to be observed in good faith by our heirs in perpetuity."

How does this square with Henry VIII becoming the Supreme Head of the Church of England by the 1534 Act of Supremacy? One of the main issues that brought about the Magna Carta was whether the church has the right to make its own appointments and govern its own affairs or whether it is subject to the crown.

Is the Act of Supremacy unconstitutional? Does the apparent unconstituntionality of the new act which has stood the test of time simply set a precedent and in effect amend the English constitution (which is not a single document to begin with, but rather a body of law built on precedent)? Perhaps you can help me figure it out.

2 comments:

dafydd said...

Very little of Magna Carta is still applicable, most of its provisions having been superseded by later legislation.

There is no ability in English law to bind subsequent legislators: anything can potentially be repealed or amended.

Thus the concept of being "unconstitutional" has no legal meaning. At best it has a moral force. Thus in 1534 (hypothetically) an opponent of the Bill of Supremacy might have urged that it be not passed because it was unconstitutional, but if that argument was not heeded, the bill once passed would instantly (no need for standing the test of time) have become as good in law as any other act.

Hope this helps.

Timotheos Prologizes said...

Thank you. That is very helpful, and very interesting.