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The Church and the Charter: Christianity and the forgotten roots of the Magna Carta – Thomas Andrew

June 27, 2015

TCATCWhat is often lost in the tale of Bad King John is the crucial role played by Christianity in the formation and preservation of “The Great Charter of the Liberties of England.” Despite their importance to the history of the Magna Carta, neither the practical contribution of the church, nor the principled contribution of Christian theology, have received much attention beyond relatively small academic circles.

This book puts these forgotten Christian contributions right back at the heart of the Magna Carta’s story. In exploring the difficult historical relationship between the religious and secular authorities in England, it assesses how and why the church helped place certain limits of the powers of the English monarch. In practical terms, it demonstrates the role played by the ‘new Becket’, Archbishop Stephen Langton, who was so crucial to both the emergence and the survival of the 1215 Magna Carta.

More significantly, however, it explores the ideological relationship between Christian theology and the most celebrated of the ideas that came to be enshrined in the Magna Carta – ideas about the importance of due process, the legitimation of arbitration in the affairs of the king, and the extension of rights language to all free men. It argues that these were notions rooted, not in secular thought, but in a medieval theology that had been profoundly affected by the development of canon law.

With all the current debate about the establishment of the Church of England, it is notable that Archbishop Anselm refused to consecrate men nominated by the Crown for bishoprics.

In 1207 John refused to admit newly consecrated Archbishop Stephen Langton to England because the Pope didn’t consecrate his preferred candidate. He also drove the Canterbury monks, whom he blamed for the whole affair, into exile. Here, again, was an English monarch demanding the right to be involved in Church affairs. Pope Innocent’s response to John’s bullish behaviour was severe. In 1208, England was placed under a papal interdict, and in 1209 King John himself was excommunicated. This meant that the English Church was banned from carrying out its normal duties – the only rites that clergy could perform being the baptism of infants and the absolution of the dying. John demanded that clergy and bishops carry on regardless, stripping any that refused of their estates and privileges. Such punitive measures caused many of the Church’s senior clergy to flee the country, and the Church in England was plunged into financial ruin.

The Pope condemned the barons for claiming their rights in the charter but Langton defended them, despite his conservative views about lawful authorities based on Romans 13.

Langton had earlier secured a clause guaranteeing the English Church her traditional rights and liberties, including freedom of elections. This was in 1214 and Langton was keen to distance this clause from Magna Carta because he knew it would be ignored otherwise.

As a result of this clause, it was the bishops who played a vital role in distributing copies of the Charter in the local parishes.

MC2What theology underlied the charter? Trial by ordeal – the main alternative to peer judgement – had been in long decline in the Western world, particularly in England since the legal reforms of King Henry II. This decline had been hastened by theological concerns about the legitimacy of ‘tempting God’ to perform a miraculous judgement, and concerns that priests involved in ‘blood punishments’ were corrupted by association. Only five months after the events at Runnymede, the Fourth Lateran Council forbade priests from blessing the ordeals. Given that the ordeal required a priestly blessing to ensure God’s righteous judgement, this ban served as an effective ban on the ordeal itself.

The great concern of the Christian legal system, since the time of Augustine, had been that in condemning people to death, judges effectively became responsible for murder in the eyes of God – particularly if they inadvertently condemned an innocent party. The trial by ordeal had developed as a way of leaving judgement – and therefore responsibility for judgement – in the hands of the divine, of “shifting the odium of human responsibility to God”. The decline of the ordeal in the 11th and 12th centuries thus threatened to implicate those who administered justice in the guilt of mortal sin.

The solution to this problem required the development of a delicate theological framework that sought to absolve judges of moral responsibility in cases of blood punishment. This framework drew heavily on the theology of the Church Fathers St Jerome and St  Augustine, who had been faced with very similar problems in their own time. Augustine’s resolution, that “when a man is killed justly, it is the law that kills him, not [the judge]” was a formulation that entered into canon law through Gratian’s Decretum, from where it had a marked effect on theological thinking. The conclusion arose that anyone condemned to death in accordance with the law of the land was condemned by the law itself, rather than the judge who administered it. Guilt only arose when a judge failed to pass judgement according to the precepts of the law. Thus, the canonist Raymond of Penafort wrote, at the beginning of the 13th century: If it is done out of love of justice, the judge does not sin in condemning [the accused] to death and ordering his minister to kill him, nor is the minister condemned if he kills having been ordered to do so. Still, either of them will commit mortal sin if he does it without observing the procedures of the law.

Langton’s qualms about Romans 13 included the issue of what to do if a king becomes a tyrant. The answer is that he simply no longer is a king. Thus ia based on Huguccio, possibly the greatest of the many medieval commentators on Gratian’s Decretum. Huguccio’s highly influential solution to the problem of a heretical pope was to argue that a pope who adhered to heretical views, or persisted in a notorious sin after due admonition, simply ceased to be pope at all. The very phrase ‘heretical pope’ was, for Huguccio, a contradiction in terms, and any pope who thus contradicted the very foundations of their papacy could be removed by the Church without any injury to the Papal See. This ingenious solution, as the historian Brian Tierney rightly points out, defended both the welfare of the Church against a corrupting papacy, and the integrity of papal sovereignty.

MCThe charter extended rights to ‘free men’ (i.e. not to serfs). This partly based on Gratian, who had established certain principles as the key to discerning the proper interpretation of canon law. The most important of these principles he lays out right at the beginning of the work: The human race is ruled by a twofold rule, namely, natural law and practices. Natural law is that which is contained in the law and the Gospel, by which each person is commanded to do to others what he would wish to be done to himself, and forbidden to render to others that which he would not have done to himself. Hence, Christ says in the Gospel, ‘All things whatever that you would wish other people to do to you, do the same also to them. For this is the law and the prophets.’

In Gratian’s understanding, the so-called ‘golden rule’ lies at the very heart of justice – and should thus lie at the very heart of earthly laws. This might sound unsurprising to the modern ear, but in the 12th century it would have been something of revelation. As the Political Philosopher Larry Siedentop suggests: By identifying natural law with biblical revelation and Christian morality, Gratian gave it an egalitarian basis – and a subversive potential – utterly foreign to the ancient world’s understanding of natural law as ‘everything in its place.

Pope Innocent III, writing in 1204, declared: It may be said that kings are to be treated differently from others. We, however, know that it is written in the divine law, ‘You shall judge the great as well as the little and there shall be no difference of persons’.

The statement that all humans are fundamentally equal before God naturally lent itself to the suggestion that humans have a ‘natural’ responsibility towards each other. This was particularly true with regards to the poor, for the Decretum contained a number of striking warnings that suggested a failure to feed the poor left the wealthy responsible for their deaths (e.g. “Feed the poor. If you do not feed them you kill them,” and “A man who keeps more for himself than he needs is guilty of theft”).

The question that subsequently arose was whether the poor had a right to claim subsistence from the wealthy in times of need. Such a line of thinking was one that was as deeply indebted to the Scriptures and to the Early Church Fathers, as it was to Gratian. A fundamentally egalitarian message was central to the Christian gospel, and the development of a coherent framework of canon law had allowed this fact to once more to thrust itself into the public sphere.

I found these clauses sad: If anyone who has borrowed a sum of money from Jews dies before the debt has been repaid, his heir shall pay no interest on the debt for so long as he remains under age, irrespective of whom he holds his lands. If such a debt falls into the hands of the Crown, it will take nothing except the principal sum specified in the bond.

If a man dies owing money to Jews, his wife may have her dower and pay nothing towards the debt from it. If he leaves children that are under age, their needs may also be provided for on a scale appropriate to the size of his holding of lands. The debt is to be paid out of the residue, reserving the service due to his feudal lords. Debts owed to persons other than Jews are to be dealt with similarly.

Ironically, the various rights enshrined in Magna Carta are being systematically by the current Conservative government which pays lip service to it.

e.g. Clause 39: No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his peers or by the law of the land.

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