CHAPTER VIII IN THE CHURCH a history of the Constitution of England the Church holds a prominent place; but in the description of the Constitution as it exists to-day it may be passed over almost without notice. Twenty-six bishops of the Established Church are members of the House of Lords, and this fact has something to do with that balancing of political forces which conditions the working of the Constitution. But it is not easy to say just what difference the presence of the bishops makes. They are nearly all Conservatives in politics, as are the other members of that House. If a bill were introduced to exclude the bishops from the House of Lords, the plea would undoubtedly be urged by those who opposed it that such an act is unconstitutional, that by ancient custom the bishops have a right to the privilege. This is certainly true. Yet if such an act were to be passed in the regular constitutional way, by a majority in the House of Commons, supported by a majority of the voters of the nation, in whom the sovereign power of the British government is now held to reside, the Constitution would be thereby changed, or, as Americans would say, amended, and the ancient, constitutional right of the bishops to I sit in the House of Lords would become unconstitutional and void. 1 England is divided into ecclesiastical parishes; and, according to the ancient legal theory of the Constitution, all baptized persons who live in a parish or extra-parochial liberty are members of the Church. As one consequence of this theory the qualified voters of the parish have still a share in the election of Church wardens, part of whose duties are ecclesiastical. The time was when all the people were subject to the rule of the one Church; when Church officers and Church courts attended to a large share of the business now transacted by the civil authorities. As late as 1857 the Archbishop's Court had jurisdiction in questions of marriage and divorce. By act of Parliament this business was afterwards transferred to the civil courts. The Established Church still maintains its ancient forms for legislation, and still has a system of Church Courts; but these governmental agencies are now chiefly exercised on behalf, not of the entire population, but simply of those who profess membership in the state Church. Practically they deal only with the clergy. A dissenting church in England adopts its own form of church government and discipline, and if it does not infringe upon any civil right, it may do anything it pleases with its own members. The Established Church cannot do this. The legislative bodies of the Established Church must secure for their acts the ratification of Parliament before they can be made effective in matters of discipline. Parliament has, however, by special acts, given to the Established Church almost the same powers of discipline which dissenting churches enjoy. These disciplinary powers are enforced by legally established Church courts with an appeal from the Archbishop's Court to the Queen in Council; that is, the judicial committee of the Privy Council. These courts being legal, disregard of their orders may be punished by imprison 1 There are certain districts outside of any parish, called extra-parochial liberties, such as Westminster Abbey and Lincoln's Inn. ment. While a court in a dissenting church cannot punish for contempt, the same practical result may yet be secured by taking the case into an ordinary court, and if the church is found to be within the law, the court will enforce its act of discipline on the ground of a contract between its members to abide by the rules duly authorized. This ancient organization, which at times has been a dominant factor in the English government, is thus seen to be in many respects scarcely distinguishable from other religious bodies having no connection with the government. The Established Church could be disestablished without the knowledge of the ordinary citizen, if it were not for the existence of Church property. The dissenting bodies, on the one side, claim that a large part of the property now in the hands of the Established Church belongs of right to the nation at large. The members of the state Church, on the other side, claim a right to all the property now used for its support. This is, in the main, a legal and a political question based upon a variety of facts in past history, and such a question cannot fail to disturb the practical working of the Constitution. One political party tends to support the policy of disestablishment, the other favours the view of the Established Church. The Church thus becomes a considerable factor in politics. In America, if the government should propose to take property from a church or an individual, there would instantly be raised the constitutional objection that private property cannot be taken for other than a public use, and that it cannot be taken for a public use without just compensation. In America, then, if ownership were legally established, the Constitution would secure to the Church all its property, or, at least, just compensation for any property taken. Now there is undoubtedly in England a widespread feeling, or understanding, that the right of property is sacred and inviolable. There are those who even regard this feeling, or understanding, as a part of the English Constitution; but this feeling, or understanding, cannot prevent Parliament from taking from the Church the property which it claims as its own, if Parliament and the nation should so will. CHAPTER IX То SOURCES OF THE CONSTITUTION O sum up the foregoing chapters: The English Constitution is a body of rules and understandings more or less clearly defined, in accordance with which the various governmental agencies are kept in harmonious action. The greater part of these are not laws at all, but are mere understandings based upon custom, or growing out of the necessities of government. Yet, if we apply the American analogy to the English Constitution, we find that a part of it is actual law. In the chapter on the courts the fact has been pointed out that some of the most important rules of the Constitution have had a judicial origin. The rule that the Monarch can do no wrong, or that the King cannot be accused in a court of law, is a rule of the courts. Likewise, the rule that the official acts of the King must be done through a Minister who is legally responsible for them, was made by the courts. So also was the rule that all officers, military and civil, may be punished in the ordinary courts for violating the law. In this way the Executive is constantly checked by the courts of law. In America, for example, we secure the right of petition, the right to freedom of speech, the right of public meetings, the right to bear arms, the right of trial by jury, by clauses which we have inserted in our state and United States constitutions. In England these rights are secured mainly by the rulings of courts. |