Robert F. Mulligan
Western Carolina University College of Business
and the State University of New York at Binghamton
Medieval English kings commemorated their coronation with charters enumerating
rights, privileges, and legal principles. Coronation charters were
transmitted to each county sheriff or reeve, and maintained in monasteries
or other secure places. In taking the oath of office, the king swore
to govern, respect the laws and customs of the realm, and defend the Church.
A coronation charter embodied an explicit execution of the oath, asserting
the laws and customs the king was to protect. Mention of rights in
a charter was not always sufficient to guarantee their exercise, but was
as often as not.
As legal practice evolved, this evolution was embodied in successive
charters. Kings also issued charters to address political exigencies.
Although medieval charters are precursors of modern parliamentary legislation,
they were more often declarative of existing laws and customs, than originative
of positive law. Charters occasionally introduced legal innovation,
but always in the context of the common law. Positive legislation
in medieval English charters is generally conservative, often aiming at
improving the implementation of common law. In contrast, charters
were often aggressive in restoring ancient liberties and customs.
The highly conservative nature of legislation-by-charter is seen in
the fact that many charter articles reversed practical innovations and
aimed at restoring earlier states of affairs. In particular, Henry
II's (1154-1189) charters are filled with references to the customs of
the time of his grandfather Henry I (1100-1135), which are often formally
restored. The intervening reign of Stephen (1135-1154) was a time
of civil war and lawlessness, and Henry II's primary mission was the restoration
of law and order. Henry II's charters were probably the most effective
instrument to effect that end.
Charters were ratified by great councils of the kingdom, which included
the king, and representatives of the nobility and clergy. Because
great councils often convened without producing charters, this paper refers
to a great council which produced a charter as a charter assembly.
Charters were not formally drafted by the king, but by ad hoc
councils of justicars, clergy, and nobles who deliberated draft articles,
perhaps influencing revision, perhaps not. Henderson (1896) ascribes
authorship of the Constitutions of Clarendon to two justicars. Many
signatories only participated as witnesses and guarantors. The king
essentially dictated the content by directing which matters ought to be
examined by a great council - he set the agenda.
This paper argues that royal charters played a common-law role
in medieval English society, and thus contributed to social and economic
progress, facilitating entrepreneurial discovery. Although charters are
not generally considered part of the common law, because they are not judge-given,
charter assemblies were, in fact, ad hoc grand juries. Although the
crown often convened great councils as charter assemblies with specific
policy goals in mind, English kings always gave explicit and formal acknowledgement
of the superior authority of preexisting custom, law, and tradition.
Royal charters are one of the most visible legacies of a system of spontaneously
evolving rules which governed society. In respecting common-law tradition,
kings promoted economic and other forms of political liberty by confirming
and maintaining abstract rules binding on all member of society, including
themselves.
The remainder of this paper is organized as follows. Section
1 reviews the history of the concept of spontaneous order in social organization.
Section 2 offers a brief discussion of the contribution to this intellectual
tradition made by Mario Rizzo (1985). Section 3 demonstrates how
the Constitutions of Clarendon, the most important medieval document providing
a foundation for the separation of church and state in England, illustrate
the spontaneous emergence of a tradition-based legal order. Section
4 elucidates the concept of abstract rules embodied in common law and discusses
the extent they allow entrepreneurs to overcome certain knowledge problems.
Section 5 presents some concluding remarks.
1. Spontaneous Order in Law: Plato, Menger, and Hayek
The idea of spontaneous order in law is at least as old as Plato, who
mentions in The Laws (IV, 4) that no human being can arbitrarily create
laws; they evolve over time as human circumstances evolve for the laws
to address, and individual human legislators add minor practical innovations.
Montesquieu (Spirit of the Laws, I, 1) adopts a similar position; though
he recognizes positive legislation also helps shape state institutions,
these institutions derive their fundamental character and basic legitimacy
from social custom and evolution. Burke expresses the emergence of
spontaneous order:
"From magna charta to the declaration of right, it has been the uniform
policy of our constitution to claim and assert our liberties as an entailed
inheritance derived to us from our forefathers, and to be transmitted to
our posterity." (1792, III, p. 58.)
Ancient and medieval law was thought to embody concepts of right and
wrong: "What is right is not derived from the rule but the rule derives
from our knowledge of what is right." (Julius Paulus, Digests, 50.17.1)
Hayek relates how early law-giving consisted only of the practice of recording
and disseminating laws conceived of as being unalterably given. (Hayek
1973 [hereafter LLL I], p. 81) "A 'legislator' might endeavour to
purge the law of supposed corruptions, but it was not thought that he could
make new law… changes which did occur were not the result of intention
or design of a law-maker…. The idea that law might be created by men is
alien to the thinking of early people." (LLL I, p. 81) The Code of
Justinian was based on classical Roman civil law, which was predominantly
the product of law-finding by jurists and includes very little positive
legislation.
The Code of Justinian was wrongly supposed to have been imposed
by the ruler and expressive of his will.
Until the rediscovery of Aristotle's Politics in the thirteenth century
and the reception of Justinian's code in the fifteenth, however, Western
Europe passed through another epoch of nearly a thousand years when law
was again regarded as something given independently of human will, something
to be discovered, not made, and when the conception that law could be deliberately
made or altered seemed almost sacrilegious. (LLL I, p. 83)
When new law was made, it was in the belief that what was being made
was good old law, not expressly handed down, but tacitly existent.
The law was not felt to have been made, but "discovered." "There
is, in the Middle Ages, no such thing as the 'first application of a legal
rule.' Law is old; new law is a contradiction in terms; for either
new law is derived explicitly or implicitly from the old, or it conflicts
with the old, in which case it is not lawful…. The old law is the true
law, and the true law is the old law…. all legislation and legal reform
is conceived of as the restoration of the good old law which has been violated."
(Kern 1939, p. 151)
Menger (1883, pp. 223-234) addresses the emergence of a spontaneous
social order, arguing against the prevailing view of the German historical
school. Menger's view is that law originated with implicit rules
of action which promoted security in early societies, and which came to
be acknowledged as binding on individual conduct. Later generations,
sufficiently removed from the factual origin of the law, might posit the
inspiration of a higher divine wisdom. Menger recognizes a second
source of the law in authority, which can impose rules on the governed
without consent, obtaining submission from fear. Menger describes
this kind of positive legislation as statute, not law (p. 229). Interestingly,
Menger also suggests positive legislation becomes more necessary as civilization
progresses and social organization becomes more sophisticated. He
insists the true aim of jurisprudence is not the absolute avoidance of
positive legislation, but the construction positive legislation informed
by and which embodies whatever is best in the common law (p. 234).
As will be seen below, what positive legislation is contained in the medieval
charters, satisfies this requirement and was clearly intended for that
purpose.
Hayek notes that England was the only country that succeeded in preserving
the medieval common-law tradition of "liberties" in its modern conception
of liberty under the law. This was partly because England avoided
a massive influx of later Roman law in the form of the Code of Justinian
and the accompanying misconception of law as the arbitrary dictate of an
omnipotent ruler. A further circumstance Hayek cites is that English
common-law jurists developed something similar to the natural law doctrine
of the late Spanish schoolmen, who used "natural" in a technical sense
to describe that which was not artificial, "what had never been invented
or deliberately designed but had evolved in response to the necessity of
the situation." (LLL I, p. 84) Hayek notes natural law later came
to mean law designed according to natural reason, often applying to positive
law.
The political freedom of the United Kingdom in the eighteenth
century was clearly not a product of a designed separation of powers between
the legislature and the executive, as Montesquieu believed. To the
extent this separation of powers was real, in England it was the product
of evolution, not design. Hayek claims the real source of British
freedom was the fact that common law existed independent of the will of
any court, jurist, or legislator; this law was binding on and at the same
time developed by the courts independent of the legislature; parliament
rarely interfered with the common law and did so mainly to address doubtful
points when they arose in a given body of law. Hayek says "a sort
of separation of powers had grown up in England, not because the 'legislature'
alone made law, but because it did not." (LLL I, p. 85)
Hayek discusses the origin of positive-law-making legislatures
in the modern sense. If the following passage about the nature and
origin of legislation is accepted, it becomes clear that it perfectly describes
the the twelfth-century charter assemblies:
"But if the laying down of such rules for the organizations of government
was long regarded as the 'prerogative' of its head, the need for an approval
of, or a consent to, his measure by representative or constituted bodies
would often arise precisely because the ruler was himself supposed to be
bound by the established law. And when, as in levying contributions
in money or services for the purposes of government, he had to use coercion
in a form not clearly prescribed by the established rules, he would have
to assure himself of the support at least of his more powerful subjects.
It would then often be difficult to decide whether they were merely called
in to testify that this or that was established law or to approve of a
particular imposition or measure thought necessary for a particular end."
(LLL I, p. 90)
It is clear the charter assemblies acted as witnesses at least.
They may sometimes have also acted in a consenting or approving capacity.
2. Rizzo's Synthesis
Rizzo (1985, p. 882) frames the thesis that "the pure common law process
produces abstract rules that do not impose a particular hierarchy of ends
on society, but simply facilitate the attainment of various individual
ends." In contrast to the prevailing view that jurisprudence must
balance competing social interests in the formulation of society's contract,
property, and tort rules, Rizzo notes common law can be policy neutral
through the avoidance of a specific hierarchy of values. This is
accomplished through the provision of abstract rules that enhance the possibilities
of an order in which individuals are free to pursue and attain their own
goals. Individuals choose their own values freely and society
does not impose any explicit value hierarchy on individuals.
The common law is itself a spontaneous order that is not the result
of conscious direction by legislative authorities. It is a body of
legal principles, i.e., formal rules, which evolved incrementally through
the participation, and occasional minor innovation, of many individual
jurists, over time.
Law arising from custom and precedent "will consist of purpose-independent
rules which govern the conduct of individuals towards each other, are intended
to apply to an unknown number of further instances, and … enable an order
of actions to form itself wherein the individuals can make feasible plans."
(LLL I, pp. 85-86) Common law generally possesses a more abstract
character than positive legislation: the common law "does not consist of
particular cases, but of general principles, which are illustrated and
explained by those principles." (LLL I, p. 86) Common law precedents
allow for the derivation of rules of universal significance applicable
to new cases.
Positive legislation is necessary in some cases. "The spontaneous
process of growth may lead into an impasse from which it cannot extricate
itself by its own forces or which it will at least not correct quickly
enough…. Case-law is in some respects a sort of one-way street: when it
has already moved a considerable distance in one direction, it often cannot
retrace its steps when some implications of earlier decisions are seen
to be clearly undesirable." (LLL I, p. 88)
At the time of the Constitutions of Clarendon (1164) a body of case
law had developed during the preceding reign of Stephen, establishing a
significantly broader range of jurisdiction for the canon law courts.
It would have been extremely tedious to limit future expansion of canon-law
jurisdiction, much less restore the original balance between canon and
civil authorities. The whole outcome of the enterprise would have
been uncertain, and it is unclear whether or how the king could have affected
change in canon law through civil case law decisions.
"It is not only difficult but undesirable for judicial decisions to
reverse a development, which has already taken place and is then seen to
have undesirable consequences or to be downright wrong. The judge
is not performing his function if he disappoints reasonable expectations
created by earlier decisions. Although the judge can develop
the law he cannot really alter it, or can do so at most only very gradually
where a rule has become firmly established….the new rule should become
known before it is enforced…. Where a real change in the law is required,
the new law can properly fulfil the proper function of all law, namely
that of guiding expectations, only if it becomes known before it is applied."
(LLL I, pp. 85-86) It is clear that English charters often acted
to correct or restore the common law.
"When some basic principles of the law have been accepted for
a long time, they will govern the whole system of law, its general spirit
as well as every single rule and application within it. At such times
it will possess great inherent stability." (LLL I, p. 66) Stable
rules provide one of the necessary conditions for entrepreneurial activity
and economic planning. A contrasting situation had developed during
the civil disturbances of the reign of Stephen. "The situation is
entirely different, however, when a general philosophy of law which is
not in accord with the greater part of the existing law has recently gained
ascendancy. The same lawyers…become a revolutionary force, as effective
in transforming the law down to every detail as they were before in preserving
it." (LLL I, p. 66)
"Groups which happen to have adopted rules conducive to a more
effective order of actions will tend to prevail over other groups with
a less effective order. The rules which spread will be those governing
the practice or customs existing in different groups which make some groups
stronger than others." (LLL I, p. 99; cf. Pollock, 1890, p. 41, "the historical
method is nothing else than the doctrine of evolution applied to human
societies and institutions.") "The task of rules of just conduct
can thus only be to tell people which expectations they can count on and
which not." (LLL I, p. 102) This is what Hayek and Rizzo refer to
as the macro function of rules - better rules make some societies better
suited for survival than others. Often these rules which confer survivability
are consciously imitated.
Hayek and Rizzo also identify a micro function of rules - rules
allow us to predict the conduct of other agents and minimize the range
of uncertainty individual agents have to address in making their decisions.
Kirzner (1990b) contrasts the planned process of production of goods and
services with the spontaneous act of perceptive discovery.
To consider an example, some treason statutes are very ancient,
but English history is filled with new and bizarre innovations in treason
legislation. All are positive. The U.S. Constitution makes
treason consist of making war on the United States or giving aid and comfort
to their enemies, and specifies no one can be convicted of this crime except
for committing an overt act and on the testimony of at least two witnesses.
Various English treason laws made imagining the sovereign's death, deposition,
or damnation a capital offense. It seems more likely that positive
legislation, not as strongly bound by precedent and tradition, can proceed
to such extremes, than common law.
2.1 Moral Authority and Legitimacy
Hayek (1960, p. 201) notes the rule of law cannot prevail in
a democracy unless it forms part of the moral tradition of the community.
Coronation charters often formally granted liberties and privileges
to the chief nobles and clergy. Obtaining support of the English
baronage was essential for the king to hold the crown securely. William
I, Henry I, Stephen, and Henry II did not inherit the throne through any
regular legal process. Granting rights by charter was one way to
assure support and it would be interesting to analyze these charters from
a public choice theory of government perspective. Only later were
the common people included in the grant of rights-by-charter.
The king's conflict with the Church can be equally well viewed as an
attempt to defend his own rights and revenues from encroachment, as an
effort to protect the common people from expansion of the Church's rights
and power. Furthermore, in the English conception, the sovereign
was subject to the laws and customs of the realm, not above them.
"The most frequent cause of uncertainty is probably that the order
of rank of the different rules belonging to a system is only vaguely determined."
(Hayek 1976 [hereafter LLL II], p. 24.) As will be seen below in
the very text of the Constitutions of Clarendon, any assertion of customary
rights can never be exhaustive, and in being selective, necessarily addresses
this objection of Hayek's. Issue and reissue of charters enumerating
traditional rights served to mitigate, even if it could never remove entirely,
uncertainty and vagueness faced by economic agents.
Charter articles occasionally introduced positive legislation in the
sense that they sometimes specified procedures for disposing of legal issues
in accordance with established law and custom. Sometimes they merely
confirmed or reestablished traditional procedural rights and practices.
The Constitutions explicitly state that they are not an exhaustive
or final assertion of the laws and customs: "There are, moreover, many
other and great customs and dignities of the holy mother church, and of
the lord king, and of the barons of the kingdom, which are not contained
in this writ. And may they be preserved to the holy church, and to the
lord king, and to his heirs, and to the barons of the kingdom, and may
they be inviolably observed for ever."
Although there was some effort to separate civil and church courts
in Saxon times, the division was not fully implemented until after the
conquest and can be considered a Norman innovation. The jurisdictions,
once separated, began to evolve independent common law. Hume (1778,
I, p. 185) records that Edgar (959-975) passed a law attempting to separate
ecclesiastic and civil jurisdictions, but even after the conquest, William
the Conqueror still had to pass a special law to implement the division.
Henry I reunited the civil and church courts in the coronation charter,
by promising to restore the Code of Edward the Confessor, but this solemn
promise remained without effect.
2.2 Nature of the Spontaneous Order
In issuing a charter, the king was not primarily promulgating positive
law. He could be understood to be requesting the charter assembly
or great council of the kingdom to attempt one of three tasks, or any combination.
The council could, a. testify with respect to their consensus understanding
of the established and true laws of the realm, b. research, consult, and
formulate such an understanding, prior to advising the king, or c. provide
assent or advice on the king's own proposed interpretation and implementation
of the established laws and customs, or that of his closest advisors.
Charter assemblies provided positive legislation only incidentally,
and almost entirely in setting forth new practices for the implementation
of old and venerable laws, rights, and privileges. Clearly one reason
for the relative absence of positive legislation from the charters is the
fact that kings could issue positive law on their own authority without
the cumbersome and expensive procedure of convening a great council.
"The common law is a dynamic order that allows for and even promotes
change. It is also an abstract order that is unbound by the specific
value hierarchies or compromises of its judges. The purpose of the
law is to promote 'that abstract order of the whole which does not aim
at the achievement of known particular results but is preserved as a means
for assisting in the pursuit of a great variety of individual purposes'
(LLL II, p. 5.)"
Although kings and charter assemblies always had specific personal
interests which influenced the content of charter articles, the extent
known particular results could be furthered through charter issue was limited
to the point of negligibility. Limited innovations could be successfully
introduced by arbitrary royal fiat, but not generally by charter, which
were always bound by traditional legal practice.
Hayek's model of the common law is one of purely private rule creation.
The law and the courts are not creations of the sovereign but rather are
evolved institutions within which all individuals, including the sovereign,
must operate. Common law antedates legislation, drawing on preexisting
implicit societal rules or customs, as well as on previous judicial decisions
(LLL I, p. 72). "It is by deference to this preexisting opinion that
the common law judge can lay claim to authority and legitimacy." (Rizzo,
1985, pp. 868-869.)
Charters made preexisting implicit societal rules and opinion explicit,
but also emphasized some principles at the expense of others. Like
any judicial decision, charter articles took existing legal principles
and adapted them to specific instances. Because they were selective,
they promoted the growth of influence of certain principles and the obsolescence
of others, thus contributing to the evolution of the common-law tradition,
again, just like any legal decision.
3. The Constitutions of Clarendon
The Constitutions make very clear they are not asserting new legislation.
The preamble states "…this memorandum or inquest was made of some part
of the customs and liberties and dignities of his predecessors, viz., of
king Henry his grandfather and others, which ought to be observed and kept
in the kingdom." Henry I had been succeeded by Stephen, and royal
authority had withered in the civil war and unrest that culminated in Henry
II's accession.
"On account of the dissensions and discords which had arisen between
the clergy and the Justices of the lord king, and the barons of the kingdom
concerning the customs and dignities, this inquest was made in the presence
of the archbishops and bishops, and clergy and counts, and barons and chiefs
of the kingdom. And these customs, recognized by the archbishops and bishops
and counts and barons and by the nobler ones and elders of the kingdom,
Thomas Archbishop of Canterbury, and Roger archbishop of York, and Gilbert
bishop of London, [eleven more bishops are listed,] did grant; and, upon
the Word of Truth did orally firmly promise to keep and observe, under
the lord king and under his heirs, in good faith and without evil wile,-in
the presence of the following: [thirty-seven lay nobles are listed by name,]
and many other chiefs and nobles of the kingdom, clergy as well as laity."
It is clear from the preamble that the charter assembly participated
as witnesses and guarantors. But the Constitutions are at least putatively
the testimony of the assembly regarding the content of England's
ancient laws and customs.
3.1 Historical Context
On the death of William the Conqueror in 1087, the English throne
and the French dukedoms of Normandie and Maine should have gone to the
oldest son Robert, but William provided his second son, William II, a letter
to the Archbishop of Canterbury indicating his desire that the younger
William be crowned king of England. William I left the French dukedoms
to the oldest son Robert in his will. The kingdom was kept intact
when Robert sold Normandie and Maine to William II for 10,000 marks, using
the money to participate in the Crusades.
William II died in 1100 without children and was succeeded by the next
younger brother Henry I, though again Robert should have inherited the
throne. The extreme irregularity of the succession after the conquest
prompted Henry I's famous coronation charter. Because many abuses
were complained of during Norman rule since the conquest, Henry I promised
to observe many specific laws and customs relating to the administration,
disposal, and revenues of church lands, and relating to inheritance of
property by nobles. He also promised to restore the laws and customs
to the time of Edward the Confessor, the next-to-last Saxon king, who died
in 1066.
Henry I used the charter to help gain the consent of the governed
to his legally questionable, though formally uncontested, possession of
the throne. The charter was transmitted to the sheriff of each county,
and kept in an abbey or some suitable location, though in the reign of
John (1199-1216), a copy the nobles desired for reference could only be
found with great difficulty. Henry I never gave his charter further
thought. Its articles would have no significance if they had not
become embodied in later more validly executed charters, including the
Constitutions of Clarendon and Magna Charta.
Henry I died in 1135 and was succeeded, again irregularly, by
his nephew Stephen. His one surviving daughter, Matilda, had married
the Holy Roman Emperor Henry V, then the Count of Anjou, Geoffrey Plantagenet.
Stephen reigned nineteen unhappy years marked by civil war and widespread
breakdown of law and order in England and the French territories.
Stephen was captured and Matilda crowned in 1141, but the civil war continued
until a general settlement was made in 1153, in which Stephen was allowed
to remain on the throne, but would be succeeded by the son of Matilda and
Geoffrey, Henry II, in 1154.
One of Henry's aides, Thomas Becket, studied civil and canon law at
the University of Bologna (Hume I, p. 306), and after serving as chancellor,
became Archbishop of Canterbury in 1162. As Archbishop, Becket was
as rigorous in defending Church prerogatives as he had been zealous in
defending royal privileges as chancellor. Becket attempted to evict
certain of the king's tenants-in-chief claiming the tenures were on church
lands. To enforce these claims, Becket issued writs summoning the
tenants to his canon law court, where Becket would be both judge and plaintiff.
The two nobles were summarily excommunicated for non-appearance, though
the judgements were eventually vacated at the king's command.
Next, a clergyman was accused of rape and murder in Worcestershire.
Becket confined the suspect in his own prison, preventing seizure by the
civil authorities, and insisted the most severe punishment that could be
legally imposed was degradation from holy orders. The king insisted
on a criminal trial in the temporal courts once the suspect had been degraded,
but Becket claimed a civil trial would violate the prohibition against
double jeopardy.
Henry II convened the assembly that drafted the Constitutions in a
period of temporary reconciliation with Becket. Henry required ecclesiastical
courts revert to their original sphere of jurisdiction before the unrest
and wished to restore the practices of his grandfather Henry I. Beckett
felt duty-bound to oppose the king, but eventually was either browbeat
into submission, or recognized further conflict with the king did not serve
the Church's ends.
3.2 The Sixteen Articles
The Constitutions of Clarendon are a charter of the separation of church
and state. It is especially interesting to see such a document arise
out of the age of faith. Each article reins in the growing power
of the Church, either removing rights and immunities acquired during the
reign of Stephen by the clergy as a special class, or limiting the range
of jurisdiction of canon law courts to what it had been before Stephen's
reign.
Article 1 gave the civil courts exclusive jurisdiction over issues
of advowson and presentment. Advowson was the right to present a candidate
for installation to a vacant church office. Kings had the right to
name bishops. Suits involving these rights, which could only be claimed
by lay nobles, had to be determined in civil courts, though prior to the
Constitutions, they were often settled in canon law courts. The civil
courts would determine these issues and the Church would be subject to
the civil courts in these issues. Advowson was a jealously guarded
privilege in the middle ages. Hume (I, p. 495) relates a particularly
barbaric penalty imposed by Henry II's father Geoffrey of Anjou to assert
his right of advowson. In Magna Charta (1215), John (1199-1216) was
forced renounce this privilege. As the Great Charter was reissued
by successive kings, advowson was eventually abandoned. Article 2
preserved the king's property rights in churches on his personal lands.
Article 3 eliminated benefit of clergy and provided clergymen accused
of criminal offenses would be tried in civil court. Because Pope
Alexander III abrogated the Constitutions, this article did not remain
in effect. It was claimed there were more than one hundred unpunished
cases of murder committed by clergymen in the ten years before the Constitutions.
This article attempted to correct a major shortcoming of criminal law,
and specified a regular form of due process for criminal cases where the
accused was a clergyman. The detailed specification of formal process
was positive legislation, but Article 3's clear intent is to provide a
uniform procedure to implement existing common law.
Until benefit of clergy was formally abolished by statute in 1826 (7
and 8 George IV, c. 28, s. 6), convicted felons could escape capital punishment
in the United Kingdom if they could recite the opening lines of Psalm 51.
On conviction for the second capital offense, felons could be executed,
because double jeopardy was not involved on conviction for a second offense.
Because of the English common-law tradition, benefit of clergy had to be
abolished in the United States by statute in 1790 (Act of April 30 1790,
s. 30).
The murder of a clergyman by a layperson was not punishable except
by excommunication and could be atoned for by penance and submission.
It is interesting to note that article 3 also provides for a right of supervision
of the ecclesiastical courts by officers to be appointed by the king's
justices.
Article 4 forbade subjects from leaving the kingdom without the
king's permission. Article 5 provided that excommunicated persons
would be allowed to remain in their place of abode without having to pay
pledges, preventing the Church from profiting from excommunication.
Article 6 provided a lay person could not be accused before a Church
court without reliable and legal accusers, who must be sworn by the civil
authority, the sheriff. This removed arbitrary power of the bishops
by limiting their jurisdiction over lay people and providing lay people
with procedural rights by imposing a uniform procedure. The
civil authorities were required to assist the ecclesiastical authorities
on request. As with Article 3, Article 6 constitutes positive legislation
in that it specifies a detailed uniform procedure, but only to implement
existing common law.
Article 7 provided that the king's chief nobles could not be
excommunicated until and unless the king received an opportunity to judge
the offending noble. In effect, no chief noble could be excommunicated
without the king's consent. Only a feudal lord or the king could
come under an interdict. Excommunication could apply to anyone, cutting
them off from the Church, but interdiction was a proscription against rendering
any property due the offender.
If a feudal lord was excommunicated, his lands would be placed under
an interdict, and religious services would be minimized. Mass would
be held with only clergy present. Funerals would not be performed,
and church bells would not be rung. If a king were excommunicated,
interdict applied to the whole kingdom.
Article 8 provided there would be no appeal to the Pope without
the king's consent, in ecclesiastical causes. The custom of appealing
to Rome had begun under Henry I whose brother was papal legate for England.
The legate was an authority who could be appealed to, over a decision by
the Primate-Archbishop, or any inferior Church authority. Appeals
to the Pope seem to have started because of the legate's obvious conflict-of-interest,
and once the precedent was established, the practice continued after the
death of Henry I. The fragmented reign of Stephen may have allowed
certain advantages from appeals beyond the Archbishop's court.
Article 9 provided civil juries would have the final right of determining
which kind of land tenure is involved in any dispute, and a church court
would not have jurisdiction unless a civil jury first decides the land
is church property, or both parties stipulate the land is church property.
About fifteen years after the Constitutions, Ranulph de Glanville (1187-89?)
gives a writ called utrum which shows this practice had been implemented
in spite of extraordinary papal resistance. Again, the specific detailed
procedure is positive, but clearly intended only to implement preexisting
common law.
Article 10 provided that certain protected classes of people
could not be excommunicated unless the civil authority was informed and
had an opportunity to compel the accused to appear in the church court
to answer ecclesiastical charges. Summary judgements of excommunication
could not be issued without legal service, and could not be issued for
most secular offenses. Secular crimes usually had to be tried in
secular courts, which could not impose excommunication. Prior to
the Constitutions, no effort had ever been made to subject the penalty
of excommunication to due process.
Article 11 confirmed the king's right to receive the medieval
pledge of fealty from officers of the church. Article 12 specified
a regular procedure for the election of bishops and other church officials.
Article 13 bound the king to compel lay subjects to respect church property,
rights, and revenues. Article 14 forbade the church from detaining
property owed to the king.
Article 15 forbade the Church to enforce debt payments, reserving
this authority to the civil courts. Article 16 provided that the
sons of serfs could not be ordained without the consent of their feudal
lord.
Of the sixteen articles, 5 and 7 deal with excommunication and indirectly
provide a level of due process for this awesome penalty, without actually
presuming to impose internal processes on canon law courts. Where
the Constitutions present positive legislation, describing new and uniform
procedures, these are always new procedures implemented through the civil
courts and the secular judicial administration, including juries, royal
justicars, and sheriffs. Articles 1, 2, 9, 11, 13, 14, 15, and 16
limit the Church's jurisdiction over property rights. Articles 3,
6, and 10 deal with secular, criminal offenses, removing the ecclesiastical
privilege of benefit of clergy, and limit church jurisdiction over these
offenses. Section 4 confirms the king's supreme temporal authority.
Section 8 deals with appeals and section 12 regularizes the election of
bishops and Church officers. Pope Alexander III abrogated all but
six of the least important, articles 2, 6, 11, 13, 14, and 16.
The eventual success of the Constitutions is due in part to Henry's
persistence in seeing its articles implemented in the face of opposition
from Becket and the Pope. In spite of archepiscopal backsliding and
equivocation, and papal abrogation, interdict, and anathema, every term
was well enforced, except article 3 removing benefit of clergy - giving
temporal criminal courts the right to try and punish clergy for criminal
offenses. This success in the face of such overwhelming opposition
suggests the Constitutions succeeded because they served the real secular
needs of the state and the people.
3.3 The Role of Positive Legislation
The innovations of the reign of Stephen required radical changes to
correct. Radical change is not typical of the common-law tradition,
but occasionally is required as a correction. Radical change in the
form of positive legislation may be necessitated by the recognition that
"past development was based on error or that it produced some consequences
later recognized as unjust. But the most frequent cause is probably
that the development of the law has lain in the hands of members of a particular
class whose traditional views made them regard as just what could not meet
the more general requirements of justice." (LLL I, p. 89)
Among the more famous charters issued by Henry II, besides the Constitutions
of Clarendon, are the Assize of Clarendon (1166), the Assize of Northampton
(1176), the Assize of Arms (1176), and the Assize of the Forest (1184),
which also aim at restoring laws and customs of Henry I. The Assizes
of Clarendon and Northampton contain notable positive legislation establishing
the jury system. The Assize of Arms revived the Anglo-Saxon militia,
a measure which can be considered simultaneously positive and common-law.
The medieval clergy possessed particular immunities, rights, and privileges
that made them ill-suited to make impartial judgements over laypeople.
Canon and civil law provided the Church with a variety of special sources
of property rights, inheritance, and income, such as frankalmoin and mortmain
tenures. Although these special privileges needed to be maintained
as a part of the medieval social order, the Church was not the most impartial
judge when its own interests were involved.
Hume relates that the Church was rigorous in opposing Henry during
the conflict with Becket, but when the king's sons later revolted, Papal
bulls and edicts Henry obtained were not obeyed by the bishops with any
zeal, because the Church's revenues and property rights were not involved.
Generally, during the reign of Stephen, ecclesiastical jurisdiction had
only expanded in areas involving Church income and property and the rights
of the clergy. The Church had not sought to expand its jurisdiction
over areas where its interests were not directly concerned, and where there
was no pecuniary incentive.
3.4 The Constitutions and Separation of Powers
During the reign of Stephen, church courts, largely out of necessity,
extended their jurisdiction in two fields: 1. they began to decide
civil claims involving church lands, or issues where one party claimed
property belonged to the church, as well as deciding claims involving the
king's and certain nobles' rights of advowson and presentation; and 2.
they began to decide criminal cases against clergymen, and possibly even
against laypeople accused of injuring clergymen. The secular administration
of justice in some counties had become irregular and spotty during the
reign of Stephen.
Because of the incessant appeal to ancient laws and customs, English
charters were not merely arbitrary royal decrees, though they had at least
that much authority. They possessed an added moral authority because
they tended to minimize positive innovations, and often repealed unsuccessful
legal experiments by returning the realm to an earlier state of affairs.
Charters were not parliamentary statutes, as parliament had not yet
evolved, but they were precursors to modern statutes. The ad hoc
assemblies convened to prepare, deliberate, witness, and guarantee charters
were similarly precursors to most modern legislatures. This lineage
from the charter assemblies applies to all Commonwealth parliaments, the
U.S. Congress, and to some extent to all their imitators, and to all U.S.
state legislatures. The Icelandic and Norwegian Stortings, for example,
are two legislative bodies which clearly have separate lineages and independent
legal traditions. Nevertheless, most legislatures with clearly different
primary origins must acknowledge the pervasive influence of the Anglo-American
common law tradition.
Charters played an additional legislative role that seems to
have become extinct. Evolving legal practices were often set back
several generations to pre-existing ancient customs. Innovative practices
were disowned, but just as often, common-law practices were confirmed by
charter. Modern legislation often arises in response to common law,
with the aim of holding back or undoing judge-made common-law innovations
displeasing to the legislator. It is not felt necessary to confirm
the course of existing common law as it was in the middle ages.
3.5 Aftermath
The Constitutions introduced no significant new practices that
had not been in place prior to the reign of Stephen. Most of these
practices had already been restored by Henry II. Rather than accept
the fait accompli, Beckett regretted his participation almost immediately,
and Pope Alexander III ordered Henry to renounce the Constitutions, under
penalty of excommunication and interdict.
After the abrogation of the Constitutions, the king prosecuted the
Archbishop in an extraordinary and arbitrary manner, first charging him
with wrongful possession of certain manors. When Becket sent four
knights to answer these civil charges, and to apologize for his inability
to appear in person due to illness, the king had him charged with contempt
and non-appearance. This was indeed harsh justice, and extremely
manipulative on the king's part. Henry seems to have taken his cue
from Becket's own earlier summary excommunication of two nobles for nonappearance.
When Becket appeared in person, the king required an immediate accounting
of all ecclesiastical revenues Becket had administered while chancellor.
Hume points out (I, p. 319) that if Henry had not been extremely pleased
with Becket's performance as chancellor, he would never have made him Archbishop.
Appeals to the Pope in ecclesiastical causes were made illegal by the
Constitutions of Clarendon, but appeals in civil cases were unheard of,
although clearly the king was exercising arbitrary power over Becket, not
justice. "In 1174, after Becket's murder, Henry was obliged
to expressly permit appeals to Rome. Papal influence was to increase
in England until it reached its zenith under Innocent III, liege lord and
collector of tribute." (Henderson 1896)
It seems possible Henry might have succeeded in promulgating
the Constitutions if he had adopted an incremental approach. One
charter might have first restored civil property and inheritance rights,
and the right of advowson and presentment, and a separate charter reasserted
authority of criminal courts to try clergymen accused of criminal charges.
Nevertheless, virtually all articles were put into practice and became
customs of the kingdom.
Richard I (1189-1199) was much more arbitrary in spirit than
his father, though perhaps less so than John (1199-1216). When the
clergy failed to contribute their share of a land tax of five shillings
on every hyde of land, Richard decreed the civil courts might not give
them any sentence for debts owed to them, until they paid what they owed
to the king. (Hume I, p. 404).
4. Common Law and Problems of Entrepreneurial Knowledge
The emergence of a single court system for civil and criminal matters
can be likened to Menger's (1871, pp. 257-271) description of the emergence
of money in a barter economy, but two alternative interpretations can be
argued for:
a. artificial - this was an artificial act engineered by a charismatic
king, celebrated in history and literature as "Supreme Administrator of
the Realm" (Hogue 1966, p. 34).
b. natural - this was a spontaneous result of the English common-law
tradition.
The Constitutions may have been spontaneous, but were not inevitable.
Henry's willful, self-interested acts shape English history. However,
he could not have accomplished what he did outside the context of the common
law. The Constitutions, and Henry's other legal reforms, provided
significant external benefits by establishing a uniform legal system, just
as ecclesiastic encroachment on the civil and criminal legal authority
imposed external costs on all land owners, and any subject who might be
accused of a criminal offense in a canon law court. In addition,
the clergy's criminal law immunities made it easier for the Church to exploit
its advantages in civil law privilege and land tenures.
When economic competition is viewed as a resource allocation problem,
it assumes a perfect knowledge never found in reality. The dynamic
competitive process of entrepreneurial discovery is frustrated by structural
distortions of the price vector (Hayek 1949e). Disequilibrium prices
provide misleading information which prevents efficient resource allocation,
but also allows entrepreneurial awareness to exploit market disequilibria,
and through arbitrage, affect adjustment toward equilibrium, the state
of perfect competition (Kirzner 1984a, p. 151). In removing and limiting
the Church's secular legal authority, Henry was also removing a major structural
source of allocative inefficiency in markets for agricultural land.
Disequilibrium prices offer pure profit opportunities (Kirzner 1984b, p.
160). Some knowledge deficiencies can be remedied through search,
but others can only be remedied by chance, and not always then. Kirzner
(1984b, p. 162) describes this kind of error as "unawareness of one's ignorance."
Hayek's (1949b) knowledge problem is the utilization of dispersed knowledge,
which no one person has, and would not and find it worthwhile to acquire
and utilize: "utilization of knowledge which is not given to anyone in
its totality." In addition, Kirzner recognizes an additional, basic
knowledge problem, failure to optimize with respect to one's true circumstances.
The peculiar circumstance of two parallel legal systems must have interjected
a great deal of uncertainty into decisions relating to land purchases and
capital investment, lowering both expenditures. Conflicting jurisdictions
expanded the sphere for Hayek's knowledge problem to occur, and obscured
the true circumstances agents should have optimized with respect to.
Secure, well-defined property rights encourage entrepreneurship.
Weak, vague, or uncertain property rights, such as obtain under parallel,
conflicting-in-interest legal systems, complicate the coordination of individual
economic agents' plans under either government planning or catallaxy.
Weak property rights increase the uncertainty of claims to resources, making
the exchange values or relative prices which are based on these claims,
less reliable as guides to action (Ikeda 1998, pp. 43-44).
In medieval times, Church and secular lands faced segregated markets.
Church lands could not be sold, but could be rented out to provide revenue.
Because Church lands ("frankalmoin" tenures) could not be transferred or
sold, and secular lands ("lay fee") could, the market value of secular
lands should have been higher, all things equal. This price differential
should have resulted from the greater flexibility offered by the fact that
lay fees could be exchanged, and the fact that, as more land was acquired
by the Church through inheritance ("mortmain"), the supply of lay fee land
shifted to the left.
The rental markets for Church and secular agricultural lands were integrated,
and similar plots should have rented for a price determined by their crop
yield. Because markets for permanent sale of Church and secular lands
were rigidly segregated, the permanent sales price of secular land must
have been depressed below what its crop yield would have dictated.
In fact, prior to the Constitutions, the encroachment of canon law
on secular justice also served to depress the value of secular lands by
subjecting secular property rights to greater uncertainty. Removal
of parallel legal systems with competing civil and criminal jurisdictions
lessened the uncertainty and removed suboptimalities which entrepreneurs
systematically exploited to pursue long-run pure profits.
The direct costs of the church empowering itself to act as both plaintiff
and prosecutor, and to impose criminal penalties on its civil opponents,
were keenly felt by Henry to be unfair, and detrimental to the moral and
economic interests of his realm. He also must have felt they undermined
his personal prestige, power, and finances.
The Constitutions clearly promoted entrepreneurship by providing an
environment where property rights were more secure. An additional
contribution to entrepreneurial efficiency may be noted: by removing the
distortion to the price vector for agricultural land, removed some opportunities
for riskless arbitrage. Entrepreneurs were redirected toward more
productive activities.
5. Conclusion
Of the twenty freedoms important to entrepreneurship identified by
Harpur (1998, p. 265), the freedoms of entrepreneurial choice, achievement
of rewards, competitive entry and exit, choice of production, choice of
marketing, ownership, choice of ownership form, choice of consumption,
and revision, were strengthened by the civil and criminal procedure articles
of the Constitutions. Freedoms of trade, markets, and contract were
strengthened by the real property articles. Freedoms of work and
choice of occupation, and travel and migration were at least slightly weakened.
The Constitutions of Clarendon provide a particularly illuminating
example of the emergence of spontaneous social order in the common law.
Because the principles embodied in the Constitutions provided the a foundation
for the separation of church and state, the document remains one of the
most important and historically significant of all medieval charters.
This paper has demonstrated the common-law character and context of the
Constitutions, and of English charters generally, while recognizing their
secondary role in promulgating positive legislation. The evolution
of modern legislatures from the English charter assemblies was also discussed.
The historical and economic impact of the Constitutions has also been addressed,
showing that the spontaneous evolution of the common law contained in the
document also contributed to the evolution of greater economic efficiency.
Fifty years after the Constitutions, the Great Charter (1215) purported
to be a restoration of the liberties of the realm in the time of Edward
the Confessor. This had been promised in the coronation charters
of Henry I, Stephen, and Henry II. Archbishop Stephen Langton produced
the Charter of Henry I for assemblies in London and Bury St. Edmonds in
1214.
Magna Charta, as written, allowed clergy freedom of elections, a right
explicitly removed by the Constitutions. Likewise, the right to leave
the kingdom at will is established. No taxes, in the form of scutage
or aid, can be levied except in three explicit feudal cases: captivity
of a subject's lord, knighting of a lord's eldest son, and marriage of
a lord's eldest daughter, without the consent of the great council of the
kingdom. This article is one of the sources of the House of Commons'
and the House of Representatives' privilege of originating revenue bills.
Like the Constitutions of Clarendon, the Great Charter was abrogated
by the Pope, this time Innocent III, but subsequently confirmed by Henry
III, Edward I, Edward II, and Edward III. Almost alone among medieval
charters, its grants of rights and privileges to the common people slowly
began to be observed.
The author thanks Stephen B. Jarrell for much helpful comment and advice. I remain responsible for errors.
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