Being lawyers, we're also fans of the Magna Carta. That's where the concept of "due process of law" comes from, among lots of other things. There was an interesting article in the "Legal Lore" section of the Spring, 2009 issue of Litigation (the journal of the Litigation Section of of the ABA) about the Magna Carta entitled "Magna Carta" (who says lawyers aren't creative), describing the history of the document.
What interested us is what happened after the Magna Carta was signed at Runnymede on June 15, 1215. Apparently, the event came to the attention of Pope Innocent III, whom the article describes as "a lawyer and global visionary." Pope Innocent III "had already excommunicated John in 1209 but restored him to a mere vassal in 1213." Litigation at 59.
What apparently happened after Pope Innocent III received word of Magna Carta surprised us. Seems he didn't take too kindly to the English Barons forcing rights out of his vassal, John, at sword's point. Pope Innocent III issued a papal bull declaring Magna Carta null and void and threatening that anyone who sought to enforce it would be excommunicated:
We refuse to overlook such shameless presumption which dishonours the Apostolic See, injures the king's right, shames the English nation, and endangers the crusade. . . . Almighty God, Father, Son and Holy Ghost, and by the authority of Saints Peter and Paul His apostles, [we] utterly reject and condemn this settlement. Under threat of excommunication we order that the king should not dare to observe and the barons and their associates should not insist on it being observed. The charter with all its undertakings and guarantees we declare to be null and void of all validity forever.
That's a quote from a translation of the original 1215 bull (which was in Latin) from a book, T.B. Costain, Conquering Family: A History of the Plantagenets (1962). It's found on page 60 of the article. It's a real book, listed on Amazon and everything.
The article goes on to describe a great deal of the history of the Magna Carta - when various English kings confirmed the document, when it was codified, how the concept of "due process of law" evolved from Magna Carta, Coke's commentaries, etc.
But the article didn't mention when, or if, the 1215 Papal Bull was ever rescinded or modified. We tried to contact the authors, but couldn't find an email address. We tried looking up the 1215 Papal Bull on an online compilation of Papal encyclicals, but it didn't go back that far.
We did some Googling, and found out some likely reasons why Pope Innocent III had been so exercised about the Magna Carta. Our best guess is that he considered himself to be the ruler of England and that John was only his vassal. As he likely saw it, the barons not only used threats of violence, but transgressed his (the pope's) authority by purporting to extract these rights from a mere vassal.
That's all well and good. But we didn't find anything that indicated, one way or another, whether the Papal Bull of 1215, quoted above, was ever rescinded.
Does that mean that the entire legal profession - in the USA as well as England - is under excommunication, because we indirectly "insist on" the Magna Carta being "observed" every time we invoke "due process of law"?
Neither of us are Catholic, so we don't see it as a religious problem. But there are some very serious Catholic lawyers and judges out there, from Justice Scalia on down, who would probably be very surprised to know that the Church denounced the Magna Carta, declared it null and void, and threatened excommunication of anyone who sought to enforce any part of it - such as the guarantee of due process of law.
That's if the Papal Bull of 1215 has never been rescinded.
We don't know the answer to that.
We're wondering if anyone out there does.
That's our non-products-liability question for the day. Does anyone know whether the Papal Bull of 1215, declaring Magna Carta null and void and threating excommunication to anyone seeking to enforce it, has ever been formally repudiated by the Church? After all, if Galileo can be rehabilitated, why can't the Magna Carta?
We'd like to think so. But even more, we'd like to know so.
Send us a cite and we'll give you full credit.