Friday, July 24, 2009

Friday Frivolity - Are We All Excommunicated?

It's our blog - we're entitled.


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But the article didn't mention when, or if, the 1215 Papal Bull was ever rescinded or modified.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.

6 comments:

Brian Perryman said...

According to the "Magna Carta" entry on Wikipedia, and other sources on the Internet, the charter was re-issued on several different occasions, most notably in 1217, 1225 and 1297, the latter occasion being in a statute called "Confirmatio cartarum," which reconfirmed the principles of the earlier versions. I'd argue that the 1215 papal bull notwithstanding, the reissuance of the Magna Carta on these occasions -- with no additional avoidances by the Pope -- means that Scalia, Alito, and the rest of observing Catholic lawyers can probably rest easy.

A more intriguing argument I ran across was Cardinal Manning's explanation of the papal bull as a purely personal act outside Pope Innocent III's eccelsiastical jurisdiction. "He had no right to interfere in temporal concerns; the control of ecclesiastical matters only had been entrusted by Christ to Peter and Peter's successors."

Brian Perryman said...

Mea culpa. The quotation from my earlier comment appears to have come from a book called "English Constitution," by a gentleman named Taylor, not from Cardinal Manning's monograph on the subject ("The Pope and Magna Carta"), which can be found here:
http://en.wikisource.org/wiki/Littell%27s_Living_Age/Volume_128/Issue_1658/The_Pope_and_Magna_Charta

Rob said...

Gentlemen--

As a seminarian on the path to the licientiate and doctorate in Sacred Theology, I must point out that you forget the simple history, namely, of Lords Spiritual and Lords Temporal--the hierarchy of the Church and its priests forming the spiritual while the monarchs (annointed) and nobility forming the temporal. The pope is both a spiritual and a temporal lord as Vicar Apostolic of Christ and the Servant of the Servants of God and sovereign of the then existing Papal Estates and Vatican City.

The primate of Catholic England, in King John's day, was the Archbishop of Canterbury, Stephen Langton, who was elevated and consecrated for the See of Canterbury by Pope Innocent without consulting King John who would not allow Langton to ascend to his see, a point not to be overlooked. Archbishop Langton, a canon lawyer, was a Lord Spiritual who supported the Barons pressuring King John for his usurpation of royal power against the rights and perogatives of the English Barons and did actively partake in the revolt against the king.

Pope Innocent, for his part, seems to have been protecting his rights as a temporal ruler and sending a message to the nobles of the Papal States--Don't revolt against my temporal authority.

One of the reasons this bull was vacated was the reaction of the successor to King John, his son Henry III. From circa 1215 to 1227, Henry III caused three clarifying versions of the Magna Carta to come before Parliament. All of those versions were ratified. Archbishop Langton's unqualified support seems to have caused the pope to allow the excommunication ban to lapse. Moreover, Archbishop Stephen and the Lord Chancellor had seen to it that copies, by hand, were delivered and published in every shire and cathedral chapter in England. At least four good copies of the Magna Carta survive. One is a copy in the Tower of London; two more are archived in the British Museum; the fourth resides in a cathedral.

The Magna Carta has its importance as being the basis of the rights of British subjects though the original clearly states that it applies to the barons of England and freeman of the realm.

KenC said...

All of the above considered, the Papal Bull regarding the Magna Carta has never been rescinded, according to several sources I have read. Later versions of the document did not change the effect of the excommunication order and it may never be rescinded.

Popes in that time period had control over armies and ruled over kings and countries. They excommunicated people at will and it had force of law, taking away people's rights and causing punishment.

If the Vatican were to do any public review of all of the old documents, it would be an embarrassment, because many of the documents have nothing to do with church and faith, but instead they are all about money, power and greed.

I am a 'cradle' Catholic and I now recognize that I have been excommunicated by Innocent III, even before I was born.

Rob said...

Ken--

I would disagree on this point. Innocent III brought this Bull into existence. I seriously doubt that he knew of Archbishop Langton's involvement against King John. That Pope Innocent was not supportive of King John's temporal rule is most obvious in that Innocent did not ask for the king's recommendation of a cleric to succeed to See of Canterbury. Innocent appointed Stephen Langton as Archbishop of Canterbury, and therefore, made Langton Primate of England at that time. Pope's don't like countermanding their decisions with hasty actions. Innocent's Bull disavowing the Magna Carta seems more directed at the nobles of his own Papal Estates. At the time of this action, Peter's Pence was in full operation. English fishermen contributed heavily with the tax on their catches. Excommunication of the people of England would have cut significantly into that revenue stream.

The quiet diplomacy of Archbishop Langton after Runnymede and the subsequent actions of King Henry III in seeking three different affirmations of the Magna Carta by different Parliaments for the period of 1215 - 1227 Anno Domini militates against a Papal Bull still being in effect. That Pope Innocent's successors to the See of Peter ignored the Bull thereby voiding and vacating it is clear from the action of the pope who gave Henry VIII, a Tudor and supplanter of the Plantagenet Royal House, the title "Defender of the Faith," rather meaningless but an honor accorded by the Papal House to a sitting monarch, at the time in good standing with the See of Peter. In brief, Popes of that period did not, and would not, have granted a papal honor, papal title, letter patent to any person or persons under the ban of exommunication.

It is quite clear that by the time of the succession of Crown Prince Henry III to the throne of England that the ban of excommunication had been dropped for all practical purposes. Its non-enforcement vacated it.

Kevin said...

See the account under "Magna Carta" at the Catholic Encyclopedia (newadvent.org). Includes an explanation of the pope's reasoning as well as a claim that subsequent editions of the charter received approval by the papal legate.