“Magna Carta and the Antipodes”
English-Speaking Union Seminar, The Brentwood Hotel, Wellington, 29th June
2008
“Stephen Langton, Magna Carta and Church Law”
Noel Cox,1
Professor of Constitutional Law,
Auckland University of Technology
Magna Carta was not merely the product of baronial strength and regal weakness, but
was also a reflection of evolving concepts of law. This law included the nascent
common law, and the principles of the newly revived ius commune ecclesiasticum,2 or
canon law. The influence upon Magna Carta of canon law, and the Church, was very
great, and few individuals had as much personal influence as Stephen Cardinal
Langton, Archbishop of Canterbury.
Langton, who may have written Magna Carta, and at the very least had a significant
role in its drafting, was a canon lawyer with a Europe-wide reputation as a scholar (he
had studied and taught at the University of Paris for 25 years). It was from his canon
and civil law training, rather than from the principles of the common law, or of the
practices of English feudalism, that he derived much of his inspiration.
The history of the canon law is beyond the scope of this address, but a brief outline
may prove instructive. As the church matured, local custom, varied or controlled by
local episcopal regulation, soon built up a series of elastic and rudimentary systems.
Later, local councils and General Councils issued canons of more general application 3
and, with the growth of papal authority, the decretals of the popes assumed an ever-
growing importance. These decretals were later incorporated into codes.4
Canon law drew from Roman civil law for the training of its lawyers, 5 for its
procedure, and for much of its jurisprudential concepts and language.6 For its
1
LLB LLM(Hons) MTheol(Hons) PhD Auckland MA Lambeth LTh Lampeter
GradDipTertTchg AUT FRHistS, Barrister of the High Court of New Zealand, and of
the Supreme Courts of the Australian Capital Territory, New South Wales, the
Northern Territory, Queensland, South Australia, Tasmania, and Victoria.
2
Evers v. Owen (1627) Godbolt’s Report 432 (K.B.) per Whitlock J.
3
A conciliar, consultative process for making decisions, especially on major policy
matters, may be observed in Acts 15 and Galatians 2 (the “Council of Jerusalem”).
4
Garth Moore, An Introduction to English Canon Law (1967), 3. See also Sir John
Baker, Monuments of Endlesse Labours (1998); Richard Helmholz, The spirit of
classical canon law (1996).
5
Though Roman Catholic lawyers are predominantly canonists as such, rather than
civilians; Ladislas Örsy, Theology and Canon Law (1992), 32.
6
James Coriden, An Introduction to Canon Law (1991), 12-14; Albert Gauthier,
Roman Law and its Contribution to the Development of Canon Law (2nd ed., 1996).
1
substantive law, however, it looked to the general codes and canons and decretals and
to the ordinances of provinces and of dioceses.7
After the Reformation the canon law of the Church of England developed along
distinct, though sometimes parallel, paths to that of the Roman Catholic Church.
Constitutional developments necessitated the creation or codification of canons in the
overseas churches of the Anglican Communion in the course of the eighteenth and
nineteenth centuries,8 and in England itself in the twentieth century.9 But at the time
of Magna Carta canon law in England was closely linked to that of other parts of
Western Christendom. Canon law influenced secular law through such instruments as
Magna Carta. It did not always prevail, particularly under a strong king, but its
influence was nonetheless great. This was particularly so at the time of Magna Carta.
There has been a thesis, widely discussed for several decades, that any mediæval
European legal text written after c. 1150 was probably influenced by the canon law.
The University of Bologna (founded 1088 and chartered 1158) in particular was a
centre for the study of civil law, and fostered the eleventh century revival of canon
law. Raoul van Caenegem argued that it is possible to trace the influence of the canon
law if the drafters give specific clues in their texts. 10 These clues were essentially the
existence of norms similar to those of the ratio scripta, the received assessment of the
canon law.
But if the legal norm is present, and the terminology differs from that commonly used
in the canon law, then it is more uncertain that the former actually influenced the
latter. Magna Carta is just such an example. However, Dick Helmholz has shown that
many chapters of Magna Carta must have been influenced by canon law, 11 despite the
absence of specific terminology.
The influence of the canon law can be seen in a brief review of the text of Magna
Carta.12 The great majority of the 38 articles – 63 with the Charter of the Forests
included – are obsolete. Possibly only three can be regarded as being of permanent
importance although only one now forms part of the law of New Zealand. 13 These are
7
Garth Moore, An Introduction to English Canon Law (1967), 4.
8
For New Zealand this occurred with the enactment of a constitution and canons in the
middle of the century.
9
In particular, the 1963 and 1969 canons.
10
Raoul van Caenegem, An Historical Introduction to Private Law (Cambridge, 1992,
originally published in French, 1988), 180-181.
11
Helmholz, ‘Magna Carta’ argues that chapters 1, 7,8, 10, 12, 14, 20, 22, 26, 35, 38,
40, 41,52, 54, 61, were congruent with doctrines found in canonical jurisprudence.
Archbishop Stephen Langton has long been considered one of the drafters of Magna
Carta (Helmholz, ‘Magna Carta’ 360-361). As a judge in his episcopal court he would
have learned canon law while settling cases, but his court also had a number of men
formally trained in law and legal argument.
12
Richard Helmholz, “Magna Carta and the ius commune” (1999) 66 University of
Chicago Law Review 297-371.
13
Magna Carta 1297 No 29 article 29 Imprisonment, etc contrary to law.
Administration of justice
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that the Church should be free; that the city of London and all the other cities and
boroughs of the kingdom should enjoy their ancient rights and privileges unimpaired;
and that no freeman should be deprived of life, liberty or property, except by the legal
judgment of his peers or by the law of the land. Each of these was strongly influenced
by the canon law, but especially the first and third. The second was most strongly
influenced by the Roman civil law, which Langton himself represented in a country
dominated by the common law. Due process was not absent from the common law,
but the church, in particular, had much to gain from insisting on its enforcement in all
secular actions, civil and criminal.
Magna Carta must also be seen in its wider European context. The Europe-wide Papal
investiture contest led to King John being excommunicated in 1209. Although the
king and pope were reconciled in 1213, a Christian king had been declared unworthy
of kingship.14 The Church modified and restrained the scope of the king’s authority.15
The king’s duty to maintain the peace in his kingdom and provide justice for his
subjects underwent a major transformation in the twelfth century, which emphasised
the king’s authority throughout England, and made more explicit his obligations and
the parameters within which he ruled. His role as judge and law-maker was
revolutionised.16
The law served to develop the powers of kings, and to direct and limit their action.17
The balance between the king and the community as the fount of law and the
dispenser of justice was perceptibly altered in favour of the king by Ælfred’s time.18
Kings and their subjects were increasingly made aware of the kings’ religious and
moral responsibilities;19 and the Church was active in this endeavour. It is perhaps no
coincidence that Archbishop Hubert Walter, who crowned King John, supposedly
made a speech which outlined, for the last time, the theory of a king’s election by the
people (rather than his hereditary, or parliamentary, right). Subsequently the notion of
legal right prevailed, alongside a maturing land law.20
The freedom of the Church was an inevitable inclusion in Magna Carta, given the
wider conflict between Pope and King. Innocent III was a friend of Langton, and was
also one of the first of the great advocates of papal sovereignty. John had been
compelled to recognise the suzerainty of the pope in 1213, and this had enraged the
barons and most of the English church – Langton himself included. It was for this as
No freeman shall be taken or imprisoned, or be disseised of his freehold, or
liberties, or free customs, or be outlawed, or exiled, or any other wise
destroyed; nor will we not pass upon him, nor condemn him, but by lawful
judgment of his peers, or by the law of the land. We will sell to no man, we
will not deny or defer to any man either justice or right.
14
Ibid., p. 106.
15
Ibid., p. 108.
16
Ibid., p. 110.
17
John Cannon and Ralph Griffiths, The Oxford Illustrated History of the British
Monarchy (Oxford University Press, Oxford, 1988), p. 34.
18
Ibid., p. 66.
19
Ibid., p. 104.
20
Noel Cox, “The Law of Succession to the Crown in New Zealand” (1999) 7 Waikato
Law Review 49-72.
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much as for any other grievance that John found himself forced to negotiate at
Runnymede.
Langton may have been a protégé of the Pope, and a canonist, but he was also an
Englishman. To him, as to the barons, the independence of the church meant limiting
the power of the King – even if this also meant that he was opposing himself to the
Pope also. The right to appeal to Rome was long subject in England to restrictions
imposed by the king or Parliament.21 The separation of Church and State, and
ultimately religious freedom, owes much to Langton’s actions. The church had to
maintain its independence, even if this meant negotiating the twin dangers of King
and Pope. The English church continued along this path from several more centuries,
bolstered by Magna Carta.
The church did not interfere in secular cases, but it did offer sanctuary and benefit of
clergy, both of which were eventually to descend into disrepute, and lead to the
embarrassment of the church. The church had its own concurrent jurisdiction, as
Magna Carta allowed. The criminal jurisdiction of the ecclesiastical courts included,
at various times, heresy, adultery, incest, fornication, simony, brawling in church,
defamation,22 and others. Some Tudor and Stuart legislation made secular offences of
conduct that had formerly fallen within the Church’s exclusive jurisdiction.23 This led
to a shared jurisdiction, which in the long term proved harmful to the ecclesiastical
courts, in the face of the jealousy of the common law, and the allegedly more efficient
processes of the common law courts.24 The settlement of the Church after the
disruption of the civil wars of the seventeenth century may have led to an intellectual
rapprochement between Church courts and secular courts, but this encouraged
intellectual borrowing from the common law, which was to help to erode still further
the distinct identity of the ecclesiastical law.25
By the nineteenth century the scope of ecclesiastical influence on secular government
had greatly diminished in the Christian world, though it retained a strong informal
role. Being largely informal it was also subject to uncertainty, and to subtle change
without overt paradigm shifts. Until the mid-nineteenth century the Church in
21
See, for instance, the Prohibition to spiritual courts Act 1285 (13 Edw. I Stat.
Circumspecte Agatis) (Eng.). There were similar restrictions elsewhere, for instance,
in France.
22
This was lost in 1855; Ecclesiastical Courts Act 1855 (18 & 19 Vict. c. 41) (U.K.), s.
1. In Ireland the same effect was achieved by the Ecclesiastical Courts Jurisdiction
Act 1860 (23 & 24 Vict. c. 32) (U.K.).
23
Witchcraft Act 1562 (5 Eliz. I c. 16) (Eng.); Sodomy Act 1562 (5 Eliz. I c. 17
(Eng.); Fraudulent Conveyances Act 1571 (13 Eliz. I c. 5) (Eng.); Bankruptcy Act
1571 (13 Eliz. I c. 7) (Eng.); Poor Act 1575 (18 Eliz. I c. 3) (Eng.); Bigamy Act 1603
(1 Jac. I c. 11) (Eng.); Plays Act 1605 (3 Jac. I c. 21) (Eng.).
24
Perceived as more efficient, in part because common law courts procedures had been
subject to a series of rigorous reforms in the course of the nineteenth century; e.g. see
Alan Harding, A Social History of English Law (1966), 330-358.
25
The very term ecclesiastical law has been used to describe the laws of the Church,
including those enacted by the secular State, in contrast to the canon law, which is
purely ecclesiastical in nature. See the Rev’d. Thomas Glyn Watkin, “Vestiges of
Establishment: The Ecclesiastical and Canon Law of the Church in Wales” (1990) 2
Ecclesiastical L.J. 110.
4
England retained a formal role with respect to the legal regulation of marriage,26
divorce,27 and succession to property,28 and in earlier centuries its jurisdiction was
much broader. New Zealand was settled at a time when the remaining Church laws
which had a direct impact upon secular life were being questioned, and were in the
course of being removed. This meant that, while the Church in New Zealand did not
necessarily obtain a universal legal jurisdiction over any aspect of (what are now seen
as) civil affairs, nor was the Church conceived as being entirely a matter for the
private consciences of individuals. This was to have implications for the model of
legal which was adopted for the Church in 1857 and thereafter. But the influence of
the canon law on Magna Carta meant that the canon law retains a seminal influence
upon some of the fundamental principles of the law of this country and others derived
from the English legal heritage.
In the twentieth century the church remains an important influence on the secular law.
This is both specific, in the handful of articles which remain operative, but perhaps
more importantly in the underlying principles which it established. Foremost of these
is the rule of law. This is especially important in a country which does not have a
written entrenched constitution; though it might be argued that the incorporation of
Magna Carta into the very bedrock of government and society has rendered such a
constitution unnecessary. The requirement that someone may be deprived of life,
liberty or property only by the “lawful judgment of his peers, or by the law of the
land”, formed the basis for much subsequent common law jurisprudence, from Sir
Edward Coke’s “‘a man’s house is his castle, et domus sua cuique tutissimum
refugium’ (‘One’s home is the safest refuge for all’),”29 to Mabo v Queensland (No 2).30
The irony of this was that a document owing much to a canon and civil law heritage
was to form the basis of a strong traditional of rights. Sir John Fortescue’s doctrine of
English kingship was that it was dominium politicum et regale, in contrast with the
French dominium regale.31 Continental rulers ruled on the basis of the civil law of
their stronger Roman legal heritage.32 They relied especially on the maxim quod
26
Until the Matrimonial Causes Act 1857 (20 & 21 Vict. c. 85) (U.K.). In Ireland,
ecclesiastical courts lost their matrimonial jurisdiction only under the Matrimonial
Causes and Marriage Law (Ireland) Amendment Act 1870 (33 & 34 Vict. c. 110)
(U.K.), and the jurisdiction survived until 1884 in the Isle of Man; the Diocese of the
Bishop of Sodor and Man Ecclesiastical Judicature Transfer Act 1884 (Statutes, vol.
V, pp. 352-373) (Isle of Man).
27
Until the Matrimonial Causes Act 1857 (20 & 21 Vict. c. 85) (U.K.).
28
Until the Court of Probate Act 1857 (20 & 21 Vict. c. 77) (U.K.). The Poor (Burials)
Act 1855 (18 & 19 Vict. c. 79) (U.K.) had the same effect in Ireland.
29
The First Part of the Institutes of the Laws of England, or, A Commentary on
Littleton (London, 1628, ed. F. Hargrave and C. Butler, 19th ed., London, 1832), Third
Institute, p. 162.
30
(1992) 175 CLR 1.
31
A limited monarchy, in contrast to an absolute monarchy; Sir John Fortescue, The
Governance of England, notes by Charles Plummer (1979).
32
The extent to which the common law resisted the reception of Roman law has been
much disputed, though recent research suggests that the mediæval common law,
though surviving in an organic sense, actually underwent a substantial reformation in
the Renaissance period, especially 1490s to 1540s; See the introduction to The
Reports of Sir John Spelman (1978), vol. 2 Seldon Society 94; Sir John Baker,
5
principi placuit legis habet vigorem (“what hath pleased the prince has the force of
law”). In England, through Magna Carta, a tradition of parliamentary government
helped ensure that the concept of the rule of law prevailed, but that the law was a
relatively benign one, enacted by the King-in-Parliament, nor the King alone. For this
the church can take some credit.
“English Law and the Renaissance” (1985) Cambridge L.J. 46.
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