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Published online by Cambridge University Press: 12 January 2009
That Magna Carta guarantees to every Englishman trial by jury is in some legal circlesan almost inerradicable conviction. As firmly rooted in many ecclesiastical circles is a belief in respect to the first clause of that great document: quod Anglicana Ecclesia libera sit. Though the historical meaning of the phrase is indisputable, it is constantly used in a false sense. It is supposed to have defined a fundamental principle of English ecclesiastical policy although not immediately realized. Just as trial by jury was definitively established only in the contest with the Stuarts, so this great principle of liberty was only secured for the Church at the Reformation; at that time the Anglicana Ecclesia became free and received its birthright assured it in the Charter. This quaint perversion of the meaning of the phrase may in some points be connected with the indisputable fact of the religious and administrative continuity of the Church of England; and the legal status of the modern Church of England has come to be regarded as practically identical with that of the Anglicana Ecclesia contemplated by the Charter. That the libertas electionum, the liberty especially referred to in Magna Carta, has totally disappeared, lost at the Reformation, seems not in the least to have effected the popular ecclesiastical interpretation. But closely connected with that belief as to Magna Carta and the Church is a commonplace of English legal tradition, universal since the sixteenth century, that the Ecchsia Anglicana, which term may be conveniently used throughout this discussion to designate the medieval Church in England as distinguished from the Church in modern times, stood in some exceptional legal relation to the rest of Western Christendom and to the Roman See and that that See had usurped at some time an authority over that Church not recognized either by theChurch or the State. In the exposition of this theory the point is often made that Pope Urban recognized this exceptional position when, according to William of Malmesbury, he introduced Anselm, Archbishop of Canterbury, to a Roman synod as quasi alterius orbis papam.
page 42 note 1 De Gest. Pontif., p. 100 (Rolls Series).
page 42 note 2 Cf. Gee, and Hardy, , Documents Illustrative of English Church History, London 1896, p. 187.Google Scholar
page 43 note 1 Vol. i, 80.
page 43 note 2 Ogle, A., The Canon Law in Medieval England, London, 1912.Google Scholar
page 46 note 1 Cf. Lyndwood, Provinciale, p. 266, v. Ecclesiæ Anglicanæ. Quæ in sui totalitate quandam Universitatem importat respectu suiipsius: et sic ejus libertas potest dici universalis, licet in aliquibus differat a liberlate Ecclesiæ generalis Universalis.
page 47 note 1 Cf. Esmein, , Histoire du droit français, Paris, 1906, p. 797.Google Scholar
page 52 note 1 C. 1, X. i., 5 infra; c. 55, X. i., 6; c. 15, X. iii., 5; c. II, X. iii.,41 infra; c. 2, X. iv. 15 infra; c. 3, X. v., 5.
page 52 note 2 Of the many hundred decretals addressed to England and incorporated in the Corpus juris canonici the phrase Ecclesia Anglicana does not seem to occur, though it is easy to overlook such a phrase.
page 52 note 3 C. 15, X., ii., 23.
page 52 note 4 Cf. Gams, Kirchengeschichte Spaniens, iii., 1, p. 165, note.
page 52 note 5 Ecclesia Scotiana, Ep. Clement III. ad Guil. Reg. Scotorum, Mansi, xxii.,548 and Cælestin. III., Mansi, xxii, 613; see also Wilkins, Concilia, iii., 576; Hibernensis Ecclesia: Synod of Cashel, 1172, Mansi, xxii., 133. The phrase Ecclesia Hispanica does not seem to occur in medieval documents or at least rarely. If this is so it is probably because of the very divided state of the country, whereby ecclesiastical provinces were nearly coterminous with independent states.
page 52 note 6 Cf. c. 25, X., ii., 28.
page 52 note 7 Cf. Mūnter, Kirchengeschichte von Dänemark und Norwegen, ii., 176. The form Daciana for Danish was in use at the time; cf. Raynaldus, Annales, Ann. 1257, n. 297; Hardouin, Concilia, vii., 499; Mansi, Concilia, xxiii., 945.
page 53 note 1 Cf. Gieseler, , Church History (Eng. trans., New York, 1858), § 108, n. 13.Google Scholar
page 53 note 2 C. 19, D. 34.
page 53 note 3 Cf. Freisen, , Geschichte des canonischen Eherechts, Tūbingen, 1888, p. 186.Google Scholar
page 53 note 4 Ibid.Cf. also the phrase of Alexander II., paratum esse dicto curiæ Domini sui Regis Francorum vel judicio Ecclesiæ: Gallicanæ out Scholarium Parisiensium. Materials for the History of Thomas Becket, (Rolls Series), vii., p. 164.
page 53 note 5 Cf. Otto of Freising, Gesta Frederici Imp., i., 60.
page 63 note 1 Cf. Basel, 1400, c. 9; Speyer, 1401, 1407; Augsburg, 1452. In Ireland there was the same difficulty, cf. Synod of Cashel, 1453, v. Wilkins, Concilia, iii., 570.
page 67 note 1 Fasciculi Zizaniorum, p. 415 f. (Rolls Series). The passage quoted is reproduced in the fac-simile prefixed to volume.
page 68 note 1 History of Convocation, 1853, p. 83.
page 69 note 1 Cf. Binterim, Pragmatische Geschichte der deutschen National-, Provizial-, und vorzüglichsten Diöcesanconcilien, Mainz, 1848, vii., 228 ff.; Hartzheim, Concilia Germaniœ, v., 315.
page 69 note 2 Binterim, op. cit., vii., 313.
page 71 note 1 C. 6, X. iv., 17.
page 71 note 2 Cf. Friedberg, Quinque compilationes antiquæ, i., I, 4, c. 4 and 7.
page 72 note 1 De legibus et consuetudinibus Angliae, f. 63. (Rolls Series, Vol. I, 502.)
page 72 note 2 Coke on Littleton, p. 245.
page 72 note 3 Repertorium Canonicum, London, 1680, p. 487.Google Scholar
page 72 note 4 Les coutumes du Beauvoisis, edition Beugnot, 1842, Vol. I, p. 277.Google Scholar
page 72 note 5 Cf. Fournier, Les officialités au moyen âge, 1880, p. 84.
page 72 note 6 C. 2 in VIto, I., 18; tit. X. ii., 24; c. 3 in VIto, ii., 2; c. 2 in VIto, ii., II.
page 72 note 7 Constitutional History of England, 3d edition, 1884, iii., 357, n. 2.Google Scholar
page 73 note 1 Cf. Fournier, op. cit., p. 87, n.I.
page 73 note 2 Cf. Esmein, , Histoire du droit français, Paris, 1907, p. 651,Google Scholar n. 1; also his essay, “Le serment promissoire en droit canonique” in Nouvelle revue historique de droit xii., 1888, pp. 332–352.Google Scholar
page 74 note 1 Cf. c. 13, X. ii., 1.