Friday, 3 October 2014

Have the Constitutions of Clarendon ever been repealed?

Technically and legally the Constitutions of Clarendon might still have the force of law in England. The Constitutions of Clarendon was a medieval statute drawn up under royal authority in the Kingdom of England before Parliament was formally established as the principal central consultative/legislative body of the country. They are not strictly an Act of Parliament, but they do have every attribute of being an Act of Parliament, like the statutes of a later period: they were compiled in written form, they were submitted in consultation and for approval to a Great Council, an assembly of all the magnates and prelates of the Kingdom held at Clarendon and in the presence of the King. And they did become law of the land enforceable by the king's justices, in his courts and thus became judge-made common law, even if Becket denounced them and the Pope condemn many of the clauses. It seems, however, they have never been formally repealed. That is, under the principle that only Parliament can undo what Parliament has enacted, they have never been brought before any subsequent Parliament, or assembly of the Great Council for repeal. In consequence they are still law of the land. And indeed many laws passed by Parliament in the subsequent centuries seem only to re-inforce many of the clauses in the Constitutions of Clarendon anyway.

According to Matthew Hale the Constitutions of Clarendon are considered to be a Statute or Act of Parliament, that was made before the "Time of Memory". That is there are no strict authenticated records of its enactment, but only transcripts of the proceedings, as recorded by ancient chroniclers, or other books and manuscripts.  Being a Thing done before the "Time of Memory", The Constitutions of Clarendon obtain at this Day no further than as by Usage and Custom they are, as it were, engrafted into the Body of the Common Law [of England], and made a Part thereof.

 Reconciliation with the church at Avranches 1172:
In the year 1172, Henry makes certain concessions to the pope, five in number, apparently, though Lord Lyttleton seems to think not in reality, contrary to the “ Clarendon Constitutions," and is thereupon reconciled and absolved for whatever part he might have taken in the murder of the archbishop.
He swore an oath

 He also made oath that he would utterly abolish the customs
which had been introduced in his time to the prejudice of the
churches of his kingdom.
He seems not to have kept this oath, beyond not applying or using the Constitutions of Clarendon in any case. while he was alive

Extract from a letter written just after the Compromise of Avranches

Materials for the history of Thomas Becket, Vol. 7 pp. 522
Epistola 775: Quoniam desiderare vos
Albert and Theodwin, cardinals to William, archbishop of Ravenna
Gilbert Foliot (1845). Epistolæ. J. H. Parker. pp. 125–
...
Relaxavit praeterea episcopos de promissione, quam ei fecerant de consuetudinibus et promisit quod non exiget in futurum.
...
...
He [Henry II] has also released the bishops from the promise which they made to him as to observing the customs, and has promised that he will not exact this in
future.

 In

 George Payne Rainsford James (1841). A History of the Life of Richard Cœur-de-Lion, King of England. Saunders and Otley. pp. 382–.

These are distinctly the terms and conditions which were proposed by the legates, and accepted by Henry; and it will be remarked, that therein there is not one word in regard to the abolition of anything but the new customs which had been introduced in that monarch's own time. * Now the constitutions of Clarendon, had been declared by the Parliament of England, the Bishops, Abbots, and the Barons of the kingdom, to be the ancient laws of the land, and Henry had always maintained that they were the same which had been in force in the time of his grandfather, Henry the First. By this agreement, therefore, he gave up not one single point of that policy to which he had invariably adhered.

 Footnote 

 *It is distinctly stated, in the letter of the Cardinals themselves, and in all the contemporary historians, I believe without more than one exception, that the only customs which Henry promised to abolish, were the new customs which had been introduced in the Church in his own times. Hoveden, who seems from the way in which he describes the document, to have seen it, if not to have been present when the act took place, distinctly marks, that they were only the new customs introduced in his own time; Gervase has the same clause distinctly; and Diceto, who was present at very many of the acts which I have detailed, though he varies the language, keeps the meaning quite clear. The only one who differs from this account, is the Monk Alanus, who represents Henry as promising unreservedly to repeal the constitutions of Clarendon.

 In 


a correspondent, E.C. Harrington of St. David's Exeter wrote

Reeves, in his "History of English Laws," says, that "none of the concessions made by Henry to the pope were enacted by authority of parliament, during any part of his reign; nor did he himself observe them, except in not compelling criminal clerks to appear before a lay judge, and in exempting them in all cases from the trial by duel.  In fact, as we shall see, in considering "the Clarendon Constitutions," the article above alluded to was annulled by the council at Northampton four years after, A.D. 1176, by the renewal and confirmation of the "Constitutions of Clarendon."

 In other words do the laws enacted by a properly constituted Parliament of the time held at Clarendon summoned by the King to Clarendon in January 1164 still stand as part of the Laws of England?  Henry II and no subsequent king seems ever to have submitted any of the concessions that Henry II made to the Pope or to his legate to a Parliament of his magnates and prelates for scrutiny, to consider or act upon.
James Anthony Froude (1885). Life and Times of Thomas Becket. C. Scribner. p. 149
states:-
The Constitutions of Clarendon were not directly repealed. But in Magna Charta the first article guarantees, without specifying them in detail, the liberties of the Church, "almost in the form in which Becket himself would have defined them".
But Magna Carta has itself largely been repealed. Clause 1 is still law, but does not define specifically what the "liberties of the church" are.

 Indeed the Republic of Ireland deemed it necessary specifically to repeal these "Laws" recently in their own legislation.



Thus we see the Constitutions of Clarendon, drawn up to the disadvantage of the Clergy, were all Repeal'd. If 'tis Objected they were Enacted in Parliament, and voided only by the Royal Authority, To this it may be answer'd, such single Authority seems sufficient: For then, as Glanvil Reports, who was Chief Justice in that Prince's Reign, the King's Pleasure was a Law, and the whole Legislature lay in the Crown.

and

Jeremy Collier (1840). An Ecclesiastical History of Great Britain, W. Straker. pp. 325–.

And when the Constitutions of Clarendon were repealed, which was done soon after Becket's death ...

But

Europe During the Middle Ages: 1. Baudry's european library. 1840. pp. 431–.

States that that reference to Glanvil was a "false quotation". 

Bracton states the following

See

Ernst Hartwig Kantorowicz (1997). The King's Two Bodies: A Study in Mediaeval Political Theology. Princeton University Press. pp. 152–. ISBN 0-691-01704-2.

[What has please the Prince is Law] -that is, not what has been rashly presumed ny the [personal] will of the king, but what has beem rightfully defined by the consilium of his magnates, by the king's authorization, and after deliberation and conference concerning it. ...


References



John Reeves; William Francis Finlason (1869). Reeves' History of the English law. Reeves & Turner. Chapter II: pp. 131–.
John Reeves; William Francis Finlason (1869). Reeves' History of the English law. Reeves & Turner. Chapter II: pp. 125–.


Woodrow Wilson Woodrow Wilson: Essential Writings and Speeches of the Scholar-president. NYU Press. pp. 295–. ISBN 978-0-8147-1984-8.

 Brinton Coxe. An Essay on Judicial Power and Unconstitutional Legislation: Being a Commentary on Parts of the Constitution of the United States. The Lawbook Exchange, Ltd. pp. 137–. ISBN 978-1-58477-534-8.

===========
Were the Constitutions of Clarendon "unwritten law"?

 Christopher Harper-Bill; Nicholas Vincent (2007). Henry II: New Interpretations. Boydell Press. pp. 228–9. ISBN 978-1-84383-340-6.
"The significance of Statute Law as opposed to Common Law was that it was written."

Glanvill talks of "English laws" as being promulgated 'by the advice of the magnates and the authority of the prince (procerum quidem consilio et princeps accente auctoritate}.'

 ==========

===========
Clause 1 of Magna Carta [1297] is still on statute in Great Britain and New Zealand.
...
The freedom of the English Church
1. FIRST, We have granted to God, and by this our present Charter have confirmed, for Us and our Heirs for ever, that the Church of England shall be free, and shall have all her whole Rights and Liberties inviolable.
...
============
Glanvill "Assisa Regni" (liber xiii 1) "constitutio regni quae assisa nominatur."

Glanvill mentions an "Assisa Regni," (lib. x. c. 12) forbidding suits concerning the debts or tenements of laymen to be decided in a court Christian "ratione fidei interpositae." This Assisa Regni is the Constitutions of Clarendon, c. 15. 3 Lib. viii.

============ 


Sir Edward Coke informs us, that the Writ, so applying to an Ecclesiastic, was expressly founded on the Constitutions of Clarendon, which, as we have already had occasion to remark, related in this respect to the Clergy only.1 If Sir Edward Coke's assertion be correct, it follows, that the Magna Charta of John was by some course of reasoning, which it would at this distance of time be difficult to discover, considered as not repealing or affecting the Constitutions of Clarendon.

============

Extract from

Sir Matthew Hale (1820). The History of the Common Law of England: And An Analysis of the Civil Part of the Law. H. Butterworth. pp. 1–.
The history of the common law of England - Hale, Matthew, Sir

I. Concerning the Distribution of the Law of England into Common Law, and Statute Law. And First, concerning the Statute Law, or Acts of Parliament

The Laws of England may aptly enough be divided into two Kinds, viz. Lex Scripta, the written Law: and Lex non Scripta, the unwritten Law: For although (as shall be shewn hereafter) all the Laws of this Kingdom have some Monuments or Memorials thereof in Writing, yet all of them have not their Original in Writing; for some of those Laws have obtain'd their Force by immemorial Usage or Custom, and such Laws are properly call'd Leges non Scriptae, or unwritten Laws or Customs.

Those Laws therefore, that I call Leges Scriptae, or written Laws, are such as are usually called Statute Laws, or Acts of Parliament, which are originally reduced into Writing before they are enacted, or receive any binding Power, every such Law being in the first Instance formally drawn up in Writing, and made, as it were, a Tripartite lndenture, between the King, the Lords and the Commons; for without the concurrent Consent of all those Three Parts of the Legislature, no such Law is, or can be made: But the Kings of this Realm, with the Advice and Consent of both Houses of Parliament, have Power to make New Laws, or to alter, repeal, or enforce the Old. And this has been done in all Succession of Ages.
Now, Statute Laws, or Acts of Parliament, are of Two Kinds, viz. First, Those Statutes which were made before Time of Memory; and, Secondly, Those Statutes which were made within or since Time of Memory; wherein observe, That according to a juridical Account and legal Signification, Time within Memory is the Time of Limitation in a Writ of Right; which by the Statute of Westminster 1. cap. 38. was settled, and reduced to the Beginning of the Reign of King Richard I or Ex prima Coronatione Regis Richardi Primi, who began his Reign the 6th of July 1189, and was crown'd the 3d of September following: So that whatsoever was before that Time, is before Time of Memory; and what is since that Time, is, in a legal Sense, said to be within or since the Time of Memory.
And therefore it is, that those Statutes or Acts of Parliament that were made before the Beginning of the Reign of King Richard I and have not since been repealed or altered, either by contrary Usage, or by subsequent Acts of Parliament, are now accounted Part of the Lex non Scripta, being as it were incorporated thereinto, and become a Part of the Common Law; and in Truth, such Statutes are not now pleadable as Acts of Parliament, (because what is before Time of Memory is supposed without a Beginning, or at least such a Beginning as the Law takes Notice of) but they obtain their Strength by meer immemorial Usage or Custom.

And doubtless, many of those Things that now obtain as Common Law, had their Original by Parliamentary Acts or Constitutions, made in Writing by the King, Lords and Commons; though those Acts are now either not extant, or if extant, were made before Time of Memory; and the Evidence of the Truth hereof will easily appear, for that in many of those old Acts of Parliament that were made before Time of Memory, and are yet extant, we many find many of those Laws enacted which now obtain merely as Common Law, or the General Custom of the Realm: And were the rest of those Laws extant, probably the Footsteps of the Original Institution of many more Laws that now obtain meerly as Common Law, or Customary Laws, by immemorial Usage, would appear to have been at first Statute Laws, or Acts of Parliament.

Those ancient Acts of Parliament which are ranged under the Head of Leges non Scriptae, or Customary Laws, as being made before Time of Memory, are to be considered under Two Periods: Viz. First, Such as were made before the coming in of King William I commonly called, The Conqueror; or, Secondly, Such as intervened between his coming in, and the Beginning of the Reign of Richard I which is the legal Limitation of Time of Memory.
The former Sort of these Laws are mentioned by our ancient Historians, especially by Brompton, and are now collected into one Volume by William Lambard, Esq; in his Tractatus de priscis Anglorum Legibus, being a Collection of the Laws of the Kings, Ina, Alfred, Edward, Athelstane, Edmond, Edgar, Ethelred, Canutus, and of Edward te Confessor; which last Body of Laws, compiled by Edward the Confessor, as they were more full and perfect than the rest, and better accommodated to the then State of Things, so they were such whereof the English were always very zealous, as being the great Rule and Standard of their Rights and Liberties: Whereof more hereafter.

The second Sort are those Edicts, Acts of Parliament, or Laws, that were made after the coming in of King William, commonly named, The Conqueror, and before the beginning of the Reign of King Richard I and more especially are those which follow; whereof I shall make but a brief Remembrance here, because it will be necessary in the Sequel of this Discourse (it may be more than once) to resume the Mention of them; and besides, Mr Selden, in his Book called, Janus Anglorum, has given a full Account of those Laws; so that at present it will be sufficient for me, briefly to collect the Heads or Divisions of them, under the Reigns of those several Kings wherein they were made, viz.
First, The Laws of King William I. These consisted in a great Measure of the Repetition of the Laws of King Edward the Confessor, and of the enforcing them by his own Authority, and the Assent of Parliament, at the Request of the English; and some new Laws were added by himself with the like Assent of Parliament, relating to Military Tenures, and the Preservation of the publick Peace of the Kingdom; all which are mention'd by Mr Lambert, in the Tractate before-mentioned, but more fully by Mr Selden, in his Collections and 
Observations upon Eadmerus.

 Secondly, We find little of new Laws after this, till the Time of King Henry I, who besides the Confirmation of the Laws of the Confessor, and of King William I brought in a new Volume of Laws, which to this Day are extant, and called the Laws of King Henry I. The entire Collection of these is entered in the Red Book of the Exchequer, and from thence are transcribed and published by the Care of Sir Roger Twisden, in the latter End of Mr Lambart's Book before-mention'd; what the Success of those Laws were in the Time of King Steven, and King Henry 2 we shall see hereafter: But they did not much obtain in England, and are now for the most Part become wholly obsolete, and in Effect quite antiquated.
Thirdly, The next considerable Body of Acts of Parliament, were those made under the Reign of King Henry 2 commonly called, The Constitiutions of Clarendon; what they were, appears best in Hoveden and Mat. Paris, under the years of that King. We have little Memory else of any considerable Laws enacted in this King's Time, except his Assizes, and such Laws as related to the Forests; which were afterwards improv'd under the Reign of King Richard I. But of this hereafter, more at large.
And this shall serve for a short Instance of those Statutes, or Acts of Parliament, that were made before Time of Memnory; whereof, as we have no Authentical Records, but only Transcripts, either in our ancient Historians, or other Books and Manuscripts; so they being Things done before Time of Memory, obtain at this Day no further than as by Usage and Custom they are, as it were, engrafted into the Body of the Common Law, and made a Part thereof.

The Constitutions of Clarendon were not directly repealed. But in Magna Charta the first article guarantees, without specifying them in detail, the liberties of the Church, "almost in the form", says J. A. Froude, "in which Becket himself would have defined them".

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