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The Common Law Character of English Charters:

Spontaneous Order in the Constitutions of Clarendon (1164)

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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