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Published online by Cambridge University Press: 08 August 2016
This article identifies the liberties of the Church and the City of London which were intended to be protected by Magna Carta from 1215. The liberties intended were a recognition of a form of autonomy for the Church and the City and have no connection with the individual freedoms that are identified for protection by modern human rights instruments. The clauses in Magna Carta conferring that autonomy are among the very few that have not been repealed, but they have not been asserted for hundreds of years. While the idea of church autonomy has resonance with the ideas of subsidiarity and sphere-sovereignty developed in Catholic and Calvinist social teaching from the late nineteenth century, recent American jurisprudence suggests that religious autonomy may be the best way to defend religious liberty in the future. This article suggests that, just as English kings were persuaded to provide towns, colonial endeavours and eventually corporate free enterprise with limited autonomy for a fee, so charters conferring limited autonomy on religious communities may provide a philosophical and practical basis from which to defend religious liberty in the future, even if the assertion of individual religious liberty becomes politically incorrect.
1 Note that, while the wording of the 1225 version varies slightly, the meaning so far as the Church and City of London are concerned is unchanged and that is true for the 1297 version as well. Though the versions of the Charter issued after 1215 removed reference to a baronial committee to oversee the king's compliance with the Charter, no dilution of the rights of the Church or the City of London are detectable, confirming that these liberties were well known and accepted.
2 Note that the four unrepealed clauses of Magna Carta to which Lord Irvine referred (see nn 3–4 below) are to the 1225/1297 version of the Charter, and the Church and London liberties are there set out in clauses 1 and 9 respectively.
3 In a December 2002 address delivered at Parliament in Canberra, Lord Irvine of Lairg, the former Lord Chancellor, observed that ‘Magna Carta was re-issued four times, with various amendments, and is now thought to have been confirmed by Parliament on almost fifty further occasions’, citing F Thompson, Magna Carta: its role in the making of the English constitution 1300–1629, (New York, 1972), ch 1.
4 The first clause cited here, which concerned the liberties of the Church, is one of four (1, 9, 29 and 37) which remain on the English statute books (Irvine (see n 2), citing Halsbury's Statutes, vol X, part 1, (London, 2001), pp 14–17). Note again, that Irvine's references are to the clause numbers in the 1225 version.
5 King John renounced Magna Carta as soon as the immediate threat of baronial force had passed and, despite his ongoing argument with Pope Innocent III, the latter also renounced it as ‘an affront to the Church's authority over the King and the papal territories of England and Ireland and released John from his oath to obey it’: ‘This day in history: August 24, 1215’, History Australia & New Zealand <http://www.historychannel.com.au/classroom/day-in-history/771/pope-declares-magna-carta-invalid>, accessed 19 February 2016. According to this source, the Charter itself was created on 19 June 1215 and the Pope renounced it on 24 August 1215. Other sources say that the king's seal was affixed on 15 June 1215.
6 The Catholic Encyclopedia records that Pope Alexander II had been Lanfranc's former student at Bec in Normandy in France: ‘Pope Alexander II’, Catholic Encyclopedia <http://www.newadvent.org/cathen/01286a.htm>, accessed 19 February 2016. His chancellor, Hildebrand, who became Pope Gregory VII, succeeded him in 1073.
7 T Plucknett, A Concise History of the Common Law, fifth edition (London, 1956), p 11.
8 ‘William conquered England and its church’, Christianity.com, <http://www.christianity.com/church/church-history/timeline/901-1200/william-conquered-england-and-its-church-11629787.html>, accessed 19 February 2016.
9 H Berman, Law and Revolution (Cambridge MA, 1983), pp 87 (quotation), 522.
10 Ibid, p 256.
11 Ibid. J Baker, ‘Magna Carta and personal liberty’ in R Griffith-Jones and M Hill (eds), Magna Carta, Religion and the Rule of Law (Cambridge, 2015), pp 81–108 at p 86, considers that the references to the liberties of the Church in the first chapter of Magna Carta would have been understood by all those who learned their law in the Inns of Court as confirming ‘the freedom of the clergy from capital punishment for murder and felony’.
12 R Helmholz, ‘Magna Carta and the law of nations’, in Griffith-Jones and Hill, Magna Carta, pp 70–80 at p 78, says that Magna Carta ‘established and fortified special privileges of Church and Clergy’ in Chapters 14, 22, 27, 55, 60 and 61. Chapter 14 provided that the king had to give the high clergy (archbishops, bishops and abbots) an individual summons if he wanted to claim scutage (tax) from them. Chapter 22 provided that fines levied on ecclesiastical clerks would ignore their ecclesiastical income (benefices). Church jurisdiction in estate distribution was acknowledged in Chapter 27, and the Archbishop of Canterbury, Stephen Langton, was included in the committee of barons who would review cases where it was alleged that King John had previously taken fines unjustly (to determine whether they should be remitted) in Chapter 55 and to recover them by distraint if necessary in Chapter 61. Chapter 60 appropriately held that all the free men of the kingdom (including the clergy) would reciprocally observe the same principles in their dealings with others.
13 See, for example, ‘What is benefit of clergy?’, The Law Dictionary, <http://thelawdictionary.org/benefit-of-clergy/>, accessed 19 February 2016.
14 A Thompson, Religious Confession Privilege at Common Law (Leiden, 2011), pp 64–65.
15 See n 1 for detail about the various versions of the Great Charter. The original 1215 version of the Great Charter was declared null and void and thus revoked within three months after it was issued in June 1215. There was therefore no version of the Great Charter operative in England when the Fourth Lateran Council convened in Rome.
16 See <http://www.nhinet.org/ccs/docs/char-lib.htm> (accessed 19 February 2016), clause 1.
17 King John had achieved an ‘open breach with the Church’ after 1205, when he again interfered in ecclesiastical appointments and ‘secure[d the bishopric of] Winchester for his henchman Peter de Roches’. The Pope's resistance to similar efforts when a new archbishop was required at Canterbury, King John's exile of the Pope's appointee, Stephen Langton, in 1208 and the Pope's consequential interdict on England, which excluded the laity from the sacraments, was not ended until King John ‘knelt before the Pope's representatives … offered a perpetual annual tribute of 1,000 marks’ and enabled the return of Archbishop Langton and other exiled clergy to England (N Vincent, Magna Carta: a very short introduction (Oxford, 2012), pp 47–51).
18 Berman, Law and Revolution, p 357. Berman observes that, while the cities of ancient Greece ‘had been self-contained, independent city-states’, the Roman Empire's ‘thousands of cities … had served chiefly as centers for administrative control … and had been governed by imperial officers’.
19 Ibid, pp 357, 360 (quotation). Berman observes that most of the Roman cities were gone by the ninth century but some survived, particularly in southern Italy, because of Byzantine and Arab commercial influence.
20 Ibid, pp 357–358.
21 Ibid, p 359.
22 Ibid, p 360. Peasants ‘had no such right military right or duty’ in the countryside, although they could be called upon in special circumstances. Knights, conversely, had to be paid.
23 Ibid, p 362.
24 Ibid.
25 Ibid, pp 362–363.
26 Ibid, p 393.
27 The name for the office which preceded that of mayor and eventually lord mayor. See McBain, G, ‘Liberties and customs of London: are there any left?’, (2013) 1:2 International Law Research 32–95 Google Scholar at 35, <http://www.ccsenet.org/journal/index.php/ilr/article/download/28685/17142>, accessed 19 February 2016.
28 See ‘The Conqueror's charter’, <http://www.elfinspell.com/PrimarySource1066.html>, accessed 19 February 2016. McBain, ‘Liberties and customs of London’, p 36, says that the consequence of this charter was ‘that all the citizens of London were freemen’ and were assured that their legal rights in the courts were preserved according to law existing before the Conquest.
29 ‘History of the government of the City of London’, City of London, <http://www.cityoflondon.gov.uk/about-the-city/about-us/Pages/history-of-the-government-of-the-city-of-london.aspx>, accessed 19 February 2016.
30 Ibid. See also McBain, ‘Liberties and customs’, p 32.
31 Berman, Law and Revolution, p 381, n 10.
32 McBain says this charter was issued by Henry I in 1132.
33 Berman, Law and Revolution, pp 381–382.
34 Ibid, p 382, quoting from the text of the 1129 Charter.
35 Ibid.
36 McBain ‘Liberties and customs’, p 38. See also Berman, Law and Revolution, p 383.
37 Baker, ‘Magna Carta and personal liberty’, pp 81 and 86. R Griffith-Jones and M Hill, ‘The relevance and resonance of the Great Charter’ in Griffith Jones and Hill, Magna Carta, pp 3–18 at p 11, make a similar point: ‘the most glaring omission was freedom of religion, the freedom to believe what one believed. That was permitted only to Jews and infidels. Magna Carta, at the very beginning, confirmed the liberties of the Church, and those included its jurisdiction; and the Church, at the time at least, was not tolerant of independent thought by Christians. Quite what the Church meant by belief is difficult now to grasp, but it did not include an unbound exercise of sincere intellectual judgment; that was forbidden on pain of death.’
38 See J Kilcullen, ‘The medieval concept of heresy’, <http://www.mq.edu.au/about_us/faculties_and_departments/faculty_of_arts/mhpir/staff/staff-politics_and_international_relations/john_kilcullen/the_medieval_concept_of_heresy/>, accessed 19 February 2016, where Thomas Aquinas (1225–1274) is cited as the authority for the death penalty for heretics, since corrupting faith is worse than many other crimes which merit the death penalty.
39 Griffith-Jones and Hill, ‘Relevance and resonance’.
40 Although William the Conqueror valued ‘his Jews’ when he brought them with him from Normandy in 1066, he and later kings treated them like chattels and could ‘mortgage them’. Twelfth- and thirteenth-century English mortgages followed Jewish forms ( Rabinowitz, J, ‘The story of the mortgage retold’, (1945) 94 University of Pennsylvania Law Review 94–109 CrossRefGoogle Scholar); since Jews could not own property, when land was eventually forfeit in consequence of an unpaid mortgage (the processes for such forfeiture were drawn out and complicated), it was forfeit to the king, who was thus joined at the hip with his Jews and had an incentive to protect them. This generalised understanding goes some way towards explaining ‘the anti-Semitic chapters’ in Magna Carta (Chapters 9, 10 and 11 of the original 1215 version) which were an important part of what the barons did insist on extracting from the king, and which the ancient Church did not appear interested in moderating.
41 Griffith-Jones and Hill, ‘Relevance and resonance’, pp 5–7, discuss the extent to which Magna Carta was the realisation of Archbishop Stephen Langton's vision of ‘a biblical, covenantal kingship in England’ and how he had invited the barons to St Paul's Cathedral and produced the Coronation Charter of Henry I in August 1213.
42 Berman, Law and Revolution, p 363. Although these concepts were new in England in the twelfth century, they have more ancient origins in the Judaeo-Christian tradition. Samuel appointed Saul as the first Israelite King (1 Samuel 10 and 11) and then rejected him when he usurped Samuel's function in administering religious ordinances (1 Samuel 15:26), but there was no prophet or seer with equivalent authority after Samuel to reject David when he did likewise.
43 Vincent, Magna Carta, pp 84, 86.
44 Berman, Law and Revolution, p 87, states that ‘In 1075, after some twenty-five years of agitation and propaganda by the papal party, Pope Gregory VII declared the political and legal supremacy of the papacy over the entire church and the independence of the clergy from secular control. Gregory also asserted the ultimate supremacy of the pope in secular matters, including the authority to depose emperors and kings. The emperor – Henry IV of Saxony – responded with military action. Civil war between the papal and imperial parties raged sporadically through Europe until 1122, when a final compromise was reached by a concordat signed in the German city of Worms. In England and Normandy, the Concordat of Bec in 1107 had provided a temporary respite, but the matter was not finally resolved there until the martyrdom of Archbishop Thomas Becket in 1170.’
45 J Rawls, A Theory of Justice (Cambridge, MA, 1971), p 181; M Nussbaum, Liberty of Conscience (New York, 2008), pp 3–4 and 213. Both refer to the judgment of Justice Robert Jackson in West Virginia Board of Education v Barnette 319 US 624 (1942) at 638.
46 Nussbaum, Liberty of Conscience, pp 359–360.
47 Since the purpose of this section is to suggest that there is a connection between these recent social ideas and the ideas of autonomy already traced, differentiating between subsidiarity and sphere-sovereignty is beyond the scope of this article. However, it is appropriate to observe that they are related ideas that have grown in parallel with sphere-sovereignty, coming from a Calvinist–Dutch background in the early twentieth century.
48 N Aroney, ‘Subsidiarity in the writings of Aristotle and Aquinas’ in M Evans and A Zimmerman (eds), Global Perspectives on Subsidiarity (Dordrecht, 2014), pp 9–28 at p 12.
49 A de Tocqueville, Democracy in America, trans F Bowen (New York, 1994).
50 Ibid, pp 86 and 92.
51 Ibid, p 93.
52 Aroney, ‘Subsidiarity’, p 12.
53 Ibid, p 32.
54 Ibid, p 35, quoting Quadragesimo Anno, pp 79 and 80.
55 See above n 31 and supporting text.
56 See, for example, clauses 28, 30 and 31 of the 1215 original version.
57 Employment Division v Smith 494 US 872 (1990).
58 M Schwartzman, C Flanders and Z Robinson, The Rise of Corporate Liberty (Oxford, 2016), pp xv and xvii.
59 Hosanna Tabor Evangelical Lutheran School v EEOC 565 US ___(2012).
60 Burwell v Hobby Lobby 573 US___(2014).
61 Schwartzman, Flanders and Robinson, Rise of Corporate Liberty, pp xvi and xviii. The beginning of a similar thread of jurisprudence may also be detected in a case in the Federal Court of Australia decided in 2014 (Iliafi v The Church of Jesus Christ of Latter-day Saints Australia [2014] FCAFC 14). In that case, the appellants had argued that they had ‘a right to worship publicly in their native language’ (para 81) and that the respondent church's decision ‘to discontinue Samoan-speaking wards … impaired’ that right. The Court observed ‘that the right to freedom of religion does not … guarantee an individual's right to worship publicly in a particular language of importance to that individual’ (para 85), and that the appellants’ right to use their own language under A27 of the International Covenant on Civil and Political Rights was to be exercised consistently with other provisions in that Covenant. The appellant's interpretation of A27 would interfere with the respondent church's ‘right to freedom of religion [under A18] that [wa]s being exercised by the Church on behalf of its adherents’ (para 99).
62 Schwartzman, Flanders and Robinson, Rise of Corporate Liberty, p xiii.
63 Ibid, p xx.
64 P Griffiths, A Licence to Trade: a history of the English chartered companies (London and Tonbridge, 1974), p x.
65 Schwartzman, Flanders and Robinson, Rise of Corporate Liberty, p ix.
66 Griffiths, Licence to Trade, pp 5–6.
67 W MacDonald, Documentary Source of American History 1606–1898 (New York, 1908), p 22.
68 Ibid.
69 See ‘First charter of Virginia’, available at <http://www.bartleby.com/43/5.html>, accessed 19 February 2016.
70 W Berrett, The Restored Church: a brief history of the growth and doctrines of the Church of Jesus Christ of Latter-day Saints, fifteenth edition (Salt Lake City, UT, 1973), p 158.
71 Ibid. However, Berrett appears to have been exaggerating just a little. J Walker, ‘Invoking habeas corpus in Missouri and Illinois’ in G Madsen, J Walker and J Welch (eds), Sustaining the Law: Joseph Smith's legal encounters (Provo, UT, 2014), pp 357–399 at pp 363 and 376, observes that two of five other city charters granted by the State of Illinois included habeas corpus protections for their citizens. See also J Kimball, ‘Protecting Nauvoo by Illinois charter in 1840’ in ibid, pp 297–307 at p 302.
72 Berrett, Restored Church, p 141. The ‘extermination order’ (Missouri Executive Order 44) was not formally revoked until 1976. See ‘Extermination order rescinded’, <https://www.lds.org/ensign/1976/09/news-of-the-church/extermination-order-rescinded?lang=eng>, accessed 8 June 2016.
73 Berrett, Restored Church, p 159.
74 L Arrington and D Bitton, The Mormon Experience: a history of the Latter-day Saints, second edition (Urbana, IL, 1972), p 69. In June 1844, the church historian Franklin D. Richards ‘placed the population at 14,000’ (Berrett, Restored Church, p 160).
75 The Illinois legislature issued a statement of regret (Resolution 627) to the Church of Jesus Christ of Latter-day Saints in April 2004. See ‘160 years later, Illinois ready to offer Mormons an apology’, Chicago Tribune, 7 April 2004, <http://articles.chicagotribune.com/2004-04-07/news/0404070268_1_mormons-armand-mauss-latter-day-saints>, accessed 19 February 2016.
76 Griffith-Jones and Hill, ‘Relevance and Resonance’, pp 5–7.
77 G Sawer, Australian Federalism in the Courts (Melbourne, 1967), p 208, called Australia ‘the frozen continent’ since it was so averse to constitutional change. More recently, G Williams, S Brennan and A Lynch, Australian Constitutional Law and Theory (Leichhardt, NSW, 2014), para 26.38, observed that ‘Australia is now the only democratic country without a national Bill of Rights’.
78 Section 234 of the Constitution of the Republic of South Africa 1996 provides: ‘In order to deepen the culture of democracy established by the Constitution, Parliament may adopt Charters of Rights consistent with this Constitution.’
79 For example, Chinese resistance to the religion of the Dalai Lama and Falun Gong suggest Chinese Communist Party concern with any organisational authority that could challenge the party's legitimacy, however benign.
80 For example, the secession referenda in Western Australia (1933), Quebec (1995) and Scotland (2014).
81 See ‘A brief history of human rights’, United for Human Rights, <http://www.humanrights.com/what-are-human-rights/brief-history/the-united-nations.html>, accessed 19 February 2016.