INTRODUCTION
The word ‘liberties’ appears ten times in the 1215 version of Magna Carta. Once it is specific to the Church and twice to the City of London. One of the references is specific to Welshmen, another to Alexander, the erstwhile King of Scotland, but all the other references are generic references to the liberties granted or acknowledged under the Charter as a whole. The references to the liberties of the Church and of the City of London have not been the subject of a great deal of commentary despite the 800th anniversary. My purpose in this article is to try to part-fill that lacuna in the literature. I therefore set out the relevant text of the 1215 version of the Charter in full.Footnote 1
Thereafter I identify the particular privileges of the Church and the City of London that seem to have been intended by those phrases and I explain what they meant in practice. In particular, I explain that the idea of religious freedom addressed in Magna Carta is quite different from the idea of individual religious freedom which is expressed in modern bills and charters of rights. The idea of religious freedom assumed in Magna Carta is more like the idea of religious autonomy said by some contemporary United States (US) commentators to have been confirmed by the establishment clause in the First Amendment to the US Constitution. I also explain the relative independence of the City of London, how it came about, why it was respected in practice and why the city grew. I then suggest that the idea of religious and urban autonomy in Magna Carta may be a progenitor of the twentieth-century idea of subsidiarity or sphere-sovereignty and I discuss whether those ideas together are durable enough to assist in defending modern religious institutions, and I note that the clauses that confirmed the ancient liberties of the Church and of the City of London as independent institutions have not been repealed.Footnote 2 That review dismisses the idea that the delegated but independent autonomy inherent in British charters enabled the existence of ‘a state within a state’. But it does raise the question as to whether contemporary Western governments could be convinced, for a fee or otherwise, to charter semi-independent religious or political communities as some did between the tenth and nineteenth centuries.
I conclude that, even though the idea of religious freedom expressed in our most ancient British constitutional instruments has no relationship with the individual freedom celebrated in modern human rights instruments, the much older idea of religious autonomy stands ready to enable a new evolution of religious liberty in the twenty-first century. In particular, I suggest that, while individual religious rights may subside in the face of state insistence on homogeneity and majority rule, associational religious liberty seems ready to reassert itself as groups of religious believers assemble to protect themselves against contemporary attacks on their consciences.
THE TEXT
The 1215 version of Magna CartaFootnote 3 includes the following clauses:
-
1. First, that we have granted to God, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired, and …
-
13. The City of London shall enjoy all its ancient liberties and free customs, both by land and by water. We also will and grant that all other cities, boroughs, towns, and ports shall enjoy all their liberties and free customs.
These are not the most well known clauses in the Charter.Footnote 4
Liberties of the Church
The meaning of the first clause is clarified a little by the text that follows. It continues:
That we wish this so to be observed, appears from the fact that of our own free will, before the outbreak of the present dispute between us and our barons, we granted and confirmed by charter the freedom of the Church's elections – a right reckoned to be of the greatest necessity and importance to it – and caused this to be confirmed by Pope Innocent III. This freedom we shall observe ourselves, and desire to be observed in good faith by our heirs in perpetuity.Footnote 5
‘The freedom of Church elections’ is an oblique reference to a residue of the long-running dispute between the Church in Europe and various kings and emperors on that continent known as the Investiture Contest. The contest was about who had the ultimate authority to select those who would hold ecclesiastical offices in a kingdom. William the Conqueror had been in dispute with successive popes for twenty years before he sailed for England. He settled his personal dispute with Pope Alexander II with the help of Lanfranc, an Italian cleric ministering in Normandy,Footnote 6 whom he later appointed as his first Archbishop of Canterbury.Footnote 7 The settlement of William's dispute with Pope Alexander II saw him invested with ‘a banner to crusade under’ when he invaded England, but William was never required to formally submit to Pope Gregory VII's later demand that William ‘swear fealty to him’ even though ‘William had sought a pope's permission to invade England’.Footnote 8
The independence of the English Church asserted by William with Lanfranc's support did not endure. Pope Gregory VII deposed the European Emperor Henry IV in 1080 and with his successors gradually also asserted the ‘independence of the clergy from secular control’ in England.Footnote 9 However, the Church independence in England referred to in Magna Carta was not really complete until the reign of William's great-grandson Henry II. The dispute came to a head when four of Henry's knights went to Canterbury in 1170 to ‘rid him of that turbulent priest’. After Archbishop Thomas Becket's death, Henry was only able to avert the excommunication of England by the personal public penance of ‘walking barefoot to Canterbury’Footnote 10 and by his submission in 1172 ‘to a papal legate on the heights of Avranches … [where] before its cathedral [he] publicly renounced those portions of his 1164 Constitutions of Clarendon which had been deemed “offensive”’Footnote 11 by the Pope.
There are direct and oblique references to Church privileges in six of the later clauses in the 1215 version of Magna Carta, but none of those suggest any specific local abuse beyond dabbling in Church appointments and King John's having taken more tax or land than Edward the Confessor (r 1042–66) had done in the early eleventh century.Footnote 12 There is no reference anywhere in the document or elsewhere which suggests that John had interfered with religious confession privilege, sanctuary or the practices which later became well known as ‘benefit of clergy’.Footnote 13
Sealed religious confession was well established in England by about the eleventh century,Footnote 14 even though it was not made binding upon the whole of the Church until the Fourth Lateran Council, which gathered at Rome's Lateran Palace on 11 November 1215, five months after the first version of Magna Carta had been signed by King John.Footnote 15 Abuses of both religious confession privilege and sanctuary were addressed in the Statute Articuli Cleri of 1315 exactly a century later, but neither privilege seems to have been making waves during the reign of King John.
Magna Carta was not the first English charter in which the liberties of the Church were asserted and confirmed. When Henry I (the fourth son of William the Conqueror) took the throne in 1100, he had issued a charter which confirmed the law as it had stood in the time of Edward the Confessor and which confirmed the proprietary autonomy of the Church in these words:
because the kingdom had been oppressed by unjust exactions, I, through fear of God and the love which I have toward you all, in the first place make the holy church of God free, so that I will neither sell nor put to farm, nor on the death of archbishop or bishop or abbot will I take anything from the church's demesne or from its men until the successor shall enter it. And I take away all the bad customs by which the kingdom of England was unjustly oppressed.Footnote 16
Although William the Conqueror had been able to make ecclesiastical appointments through the assistance of Lanfranc while Alexander II was pope, the political strength of subsequent popes saw the Church establish control of its appointments and property by the end of the twelfth century. At Runnymede in 1215, what the Church required was confirmation that King John's new intrusions into its affairs – including its exile of some of its leaders – should stop. The Church looked back to promises that had been made by John's predecessors as its authority for the principle that it was supposed to be free from such contests with the king. John therefore promised that there would be no future interference with the Church's internal election procedures, no exile of its leadership and no taking of Church property in the absence of its leaders.Footnote 17 Just as Henry I had provided the Church with written assurances in 1100 that its property would be sacrosanct, so the Church sought written assurance from John that its autonomy would be respected. In 1100, Henry I had referred to Edward the Confessor's respectful relationship with the Church before his father (the Conqueror)'s arrival as the precedent when it came to an acceptable relationship between king and Church. King John was therefore probably referring to the same standard, but his commitment in Magna Carta does not seem clear. That perception may, however, be the result of our misunderstanding, since church political power of that order is foreign to us.
Ancient liberties of the City of London
The City of London's charterial history is of similar vintage. William the Conqueror had issued the City of London with its first charter in 1066, the year of his conquest. But, even though there is no record of an earlier charter, the City of London had already established its identity and autonomy. The towns and cities that remained in Europe before the eleventh century had been administrative centres left over from Roman times.Footnote 18 Many of those administrative centres did not survive. But the revival of commerce and the needs of the merchant classes spawned new centres which took advantage of unhappy groups in the countryside looking for the opportunity to ‘climb from one [social] class to another’.Footnote 19 London survived as a ‘trading settlement’ with fortified commercial quarters.Footnote 20 Other cities in Europe that operated similarly included Naples, Salerno, Bari, Syracuse, Palermo, Venice, Durazzo, Cologne and Milan.
The change and growth in London was typical and was the result of a combination of economic, social, political, religious and legal factors. Surplus artisans and craftsmen congregated in the developing towns to provide services to the merchants. The merchants traded with farmers for surplus food and raw materials, which resulted from the ‘rapid increase in agricultural productivity in the eleventh century’.Footnote 21 Serfs, free peasants and apprentices who had become masters and successful craftsmen in their own right followed the yellow brick road to class mobility and fortune. Emperors, kings, dukes and lesser (seigniorial) rulers, as well as popes and bishops, improved their military position by chartering towns which then attracted immigrants from the countryside. Not all of the feudal lords were excited to lose their peasants, but they did not have the power to reclaim their lost tenants before they were protected by the cities as part of its fabric.
To avoid the risk that the cities and their inhabitants might become a law unto themselves, those chartering the new cities required promises of obedience to law in those documents. Control was problematic because these newly independent townsfolk had also obtained and were keen to exercise ‘the right and duty to bear arms’ in defence of their new homes. While this city-based military service was voluntary in the sense that it was not paid and was extended in the cities to include the peasants, it was made obligatory as part of the set of covenantal obligations which all new arrivals in the towns had to accept before they were secure in their new places of residence.Footnote 22
Harold Berman explains the religious and legal contribution to the rise and independence of the new European towns and cities in the eleventh and twelfth centuries, including London, writing that they
were religious associations in the sense that each was held together by religious values and rituals, including religious oaths. Many of them were sworn communes (conjurations, ‘conspiracies’), and of these a considerable number had been founded by insurrectionary organizations. Those that were formed by merchants were often governed by a merchant guild, which was itself a religious association, dedicated to charitable and other religious works as well as to the regulation of business activities. Those that were established by imperial, royal, ducal, or episcopal (or other ecclesiastical) initiative were also conceived as brotherhoods and were held together by oaths.
To stress the religious character of the cities and towns is not to say that they were ecclesiastical associations. They were wholly separate from the Church, and in that sense were the first secular states of Europe. Nevertheless, they derived much of their spirit and character from the Church. Indeed it would have been astonishing if it had been otherwise, since they emerged during the era of the Papal Revolution.Footnote 23
The new eleventh- and twelfth-century towns and cities were also legal associations, since they were either formed or legitimised by their new charters. Though London, as a leftover Roman administrative centre, had not been founded by charter in the same way as some of the new European towns, William's charter for the city did confirm ‘the “basic liberties” of [her] citizens … including substantial rights of self-government’.Footnote 24 In this respect, London and the new European towns stood in contrast with the developing cities of the Middle East. The Islamic cities lacked corporate unity, were never sworn communes, religious guilds or brotherhoods and were never incorporated or given charters setting out the rights and liberties of the residents.Footnote 25
The charters of Christian towns and cities were read aloud regularly and the people who came to live in them became subject to covenant to adhere to their charters.Footnote 26 These commitments had more in common with the feudal contract of vassalage than any modern sense of a bargained exchange. Still, when a peasant or a craftsman came to reside in a town or city, he obtained a new status and became subject to the small patrician group that ruled the place. The relationship was covenantal and almost sacramental. To breach one's covenants and renounce one's civic obligations would be to declare oneself an outlaw and beyond the protection of the local city authorities, exposed once again perhaps to one's former and unhappy feudal lord.
William's 1066 charter to the City of London is very short. Like the Coronation Charter given to England by his fourth son, Henry I, 34 years later, it identifies the laws and practices of Edward the Confessor as the gold standard. It says:
William the King friendly salutes William the Bishop, and Godfrey the portreve,Footnote 27 and all the burgesses within London, both French and English. And I declare, that I grant you to be all law-worthy, as you were in the days of King Edward; and I grant that every child shall be his father's heir, after his father's days; and I will not suffer any person to do you wrong. God keep you.Footnote 28
The City of London claims that it is ‘the oldest continuous municipal democracy in the world’ and traces its ‘ancient rights and privileges’ to the time of Edward the Confessor as acknowledged in the words of William's Charter.Footnote 29 The City's website also infers that the reason for William's acknowledgement of London's rights was tied up in the fact that the City of London ‘was the major source of financial loans to monarchs, who sought funds to support their policies at home and abroad’ from ‘medieval to Stuart times’.Footnote 30
Financial practicality probably also explains why London and Winchester were exempted from William's Domesday Book tax survey in 1086.Footnote 31 William had made a collective agreement with London and was happy with the taxation arrangements that flowed. The nature of those arrangements is not set out in the text of the 1066 Charter, but their existence is obvious in Henry I's expanded version of the Charter in 1129.Footnote 32 Berman says that ‘the rights of London citizens and of London as a city expanded dramatically’ in the two generations after 1066: ‘the two ruling “reeves” (sheriffs), previously appointed by the king, were elected from among the citizens, and this right of election was granted in perpetuity by’ Henry's 1129 version. ‘The city exercised its jurisdiction through a folkmoot of the entire citizenry meeting three times a year and through a smaller court called a husting.’Footnote 33 But in his new version of the Charter, Henry I also agreed to reduce the annual tax from £500 to £300. While the city's 24 aldermen managed the city's affairs independently, Henry's version makes it clear that they did so under the auspices of the king as the source of and the authority behind their Charter. That is, they ruled the City with the king's blessing, ‘by the law of the lord king which belongs to them in the city of London, saving the liberty of the city’.Footnote 34 Though the king's law applied in the City of London, the 1129 Charter confirms that, by that date, the citizens could choose their own judges, and that those judges alone and none others outside the city would determine cases involving London citizens.Footnote 35
Though there are suggestions that King Stephen (r 1134–1155) revoked the earlier City of London Charters, that possibility is immaterial when interpreting the meaning of Magna Carta, since King John had reissued the Charter on 5 July 1199 and had confirmed the annual payment to him at £300.Footnote 36
Religious freedom in Magna Carta?
The religious freedom that was promised by King John and those who subsequently reissued Magna Carta was what we might now describe as ‘religious autonomy’. While Magna Carta is often vaunted as ‘an original charter of human rights’, save perhaps for the highest nobles, Englishmen and other Europeans in the thirteenth century did not conceive of individual rights in any sense that moderns would recognise. Indeed, the suggestion that, in 1215, Magna Carta introduced a modern ‘freedom of conscience’ or confirmed it is grossly anachronistic.Footnote 37 To suggest that it was acceptable for anyone who qualified as a ‘free man’ under Magna Carta to go and worship in some other non-kosher way would have been to endorse heresy, which was a crime as grievous as treason against the person of the king.Footnote 38 Jews and Muslims were not so much exempt as irrelevant.Footnote 39 They did not count as ‘free men’ to merit legal recognition at all, though they were very much recognised in commercial practice.Footnote 40
To the extent that thirteenth-century Englishmen had modern rights at all, they enjoyed their rights in communities and classes. Their rights were the product of shared responsibility and the collective discharge of communal obligations. Because the Church and the City of London were collectively strong enough to withstand the prerogative demands of the king, they could bargain with him on terms approaching equality. But individually no Church officer, no matter how high, nor any baron or city official would dare to resist a request or personal demand from the king. Their strength lay in their covenant solidarity and they knew it.Footnote 41 Their opportunity to bargain with the king was the fruit of an idea in the mind of the monk named Hildebrand who became Pope Gregory VII as Pope Alexander II's successor. Berman writes that Hildebrand's ‘new religious and legal concepts and institutions and practices’ enabled urbanisation and that they represent the watershed from which the whole Western legal tradition has flowed. In time these ideas, institutions and charters would generate demands for ‘rational and objective judicial procedures, equality of rights, participation in lawmaking, representative government and statehood itself’.Footnote 42
Though Magna Carta is popularly represented as an extraction wrought by noble intimidation tactics, a more complete understanding of the context recognises that the barons, the Church and the City of London institutionally made an informal religious covenant that they would stand collectively and hold this unruly, turbulent and meddlesome king accountable to grand principles already well founded in custom. Magna Carta was new in England because of the number of classes it drew together onto the face of one document. That was also a reason why it was later considered the ‘Great’ Charter, though that label at the time merely distinguished it from the smaller Forest Charter, which was issued alongside the 1217 and 1225 versions of Magna Carta.Footnote 43 But it was no novelty. Concords, treaties and charters had been used to resolve similar and larger differences, normally seated in religious discord, on the European continent for more than a hundred years.Footnote 44 Thus William I was well familiar with the concept as an expedient way to manage large towns and cities when he came to England in 1066. That is why he set out the heads of his agreement with the aldermen of the established City of London in documentary form in that first year.
Hildebrand's autonomy idea took root in England and spawned our modern political institutions and power-sharing ideas. It is not my purpose to tease out the length and breadth of that complex or the expanse of its legacy and influence, but merely to observe that it was seated in the simple idea of Church autonomy – the proposition that Church and State lived best together when they were autonomous, respected the integrity of the other and negotiated on terms of relative equality when they had differences.
These ideas remain controversial. They were fought about as the Investiture Contest of the twelfth century and they are now fought about as the culture wars of the twenty-first century. John Rawls and Martha Nussbaum agree that the enduring tension between church and state can only be resolved if it is accepted as a ‘fixed star’ in Western jurisprudence that the state does not impose ‘orthodoxy’ in matters of religion.Footnote 45 Nussbaum suggests that humans are forgetful and that we need to relearn this solution in every generation because it is not self-evident.Footnote 46
SUBSIDIARITY, SPHERE-SOVEREIGNTY AND THE IDEA OF AUTONOMY
Another indication that the fine detail as to how church and state are most wisely separated is not self-evident can be seen in the evolution of the doctrines of subsidiarity and sphere-sovereignty in the nineteenth century.Footnote 47 It is beyond the scope of this article to set out all the nuances of those doctrines or how they have most recently developed, but I will identify them sufficiently to show that they may be regarded as the restatement of an underlying autonomy idea that was well established in the eleventh century.
A connection between the idea of religious and urban autonomy and the ideas of subsidiarity and sphere-sovereignty will not be obvious to readers who are only familiar with these latter ideas from Catholic and Calvinist social teaching, beginning with the papal encyclical Rerum Novarum in 1891. Nicholas Aroney has, however, shown that the threads of meaning drawn together by Popes Leo XIII, Pius XI and John Paul II, in 1891, 1931 and 1991 respectively, have distant roots in Aristotle and Aquinas.Footnote 48 The same threads were also explored by de Tocqueville when he wrote Democracy in America in 1835.Footnote 49
De Tocqueville noted that centralised power ‘accustoms men to set their own will habitually and completely aside’, and that the removal of any sense of individual responsibility for the welfare of the village enabled the individual to ‘fold his arms and wait till the whole nation comes to his aid’.Footnote 50 He also said that when a nation has reached the point where individuals
oscillate … between servitude and licence, [fear of central bureaucrats and expectation of benefit from their largesse], that nation must either change its customs and its laws, or perish; for the source of public virtues is dried up; and though it may contain subjects, it has not citizens.Footnote 51
Undoubtedly similar insights into human character motivated the Conqueror in his ‘settlement’ with the City of London in 1066, but they do not explain the ‘freedom of the Church’ which was also recognised in Magna Carta. That concession of autonomy to the Church reads more like a species of mediaeval détente, as the powers that were saw that they must accommodate one another to avoid unending destructive conflict.
The Latin root of subsidiarity is subsidio, which literally means ‘to help’ or ‘aid’, but it is Catholic social teaching since 1891 that has provided the word ‘subsidiarity’ with its contemporary meaning. For example, in 1891 in his encyclical Rerum Novarum, Pope Leo XIII implied that, while the state was obliged to act against the secret combinations of men established for evil purposes, it had a greater obligation to encourage private associations focused on free enterprise and the common good.Footnote 52 Pope Pius XI fleshed out these ideas in his 1931 encyclical Quadragesimo Anno, which was subtitled ‘On the restoration of the social order and perfecting it conformably to the precepts of the gospel’.Footnote 53 This second encyclical treating subsidiarity included this statement:
it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice … and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do. For every social activity ought … to furnish help to the members of the body social, and never destroy and absorb them.
The supreme authority of the State ought … to let subordinate groups handle matters of lesser importance, which would otherwise dissipate its efforts … the State will … do all things that belong to it alone … directing, watching, urging restraining … [T]hose in power should be sure that the more perfectly graduated order is kept among the various associations, in observance of the principle of ‘subsidiarity function’ [to enable] … the happier and more prosperous condition of the State.Footnote 54
While it is doubtful that any English king considered that there was any moral turpitude in depriving a subject or institution of the opportunity to work or of the resulting work product if that deprivation served the public interest, all the kings had a self-interested understanding of the value of a productive economy.Footnote 55 King John and his successors acknowledged this much in Magna Carta when they agreed that they would not take or use property without compensation, and when they allowed the City of London to govern itself in return for an annual fee.Footnote 56 They neither wished to discourage industry or patriotism. But scholars in the US have observed a resurgence in the idea of the ancient freedom of the Church coming from another direction.
In the introduction to their recent book The Rise of Corporate Liberty, Schwartzman, Flanders and Robinson observe a transition in modern American understanding of religious liberty ‘from individual liberty [back] to [the] freedom of the church’ and ‘from freedom of the church to corporate liberty’ evolving as a response to the 1991 Supreme Court decision in Employment Division v Smith,Footnote 57 which had limited the exemption of individual religious practice in the face of generally applicable laws.Footnote 58 In the Hosanna-Tabor decision,Footnote 59 ‘Chief Justice Roberts emphasized that the First Amendment gives “special solicitude to religious organizations”’ and in Hobby Lobby,Footnote 60 Justice Alito suggested that corporations are ‘reducible ultimately to the beliefs, values and interests of the people who compose them’.Footnote 61 For these authors, however, the Hobby Lobby case ‘has now become a symbol for something larger – about the role of corporations in constitutional law, about the role of religion in the United States, and about the confluence of the two’ and the questions for religious liberty in the future will not be about individual religious liberty.Footnote 62 Rather, they will be about what government interests the ‘courts find sufficiently powerful to limit the freedom of religious organizations’ and how to ‘strike the proper balance’ between those interests and the interests of third parties which may be harmed by them.Footnote 63
When that forward-looking discussion is read alongside the observation that the oldest version of religious freedom known in Western jurisprudence is institutional in nature, it is reasonable to suggest that religious liberty may be returning to where it began. If that is so, it is further reasonable to suggest that in the future religious liberty may be defended as the collective or the incorporated interest of groups of like-minded individuals associated together for religious or economic purpose. But the merger or confluence of religious freedom as an associational right with economic undertones has a well-established if forgotten jurisprudence of its own. In the final part of this article I will therefore note how the ancient idea of a charter with religious covenantal language contributed to England's colonial expansion and the ring-fencing of her minority religions. Again, it is beyond the scope of this article to set out all the nuances of the underlying legal doctrines or how they were developed, but I will provide examples to show that religious liberty and royal charters have been comfortable bedfellows for a very long time.
AUTONOMY UNDER OTHER CHARTERS
Before there was any concept of a commercial legal entity, groups of individuals could not associate together for any reason, including trade, without royal sanction.Footnote 64 Without commercial legitimacy, traders could not collect debts or enforce the promises that people had made when receiving goods for which they could not pay immediately. Since the crown was always interested in controlling the economy, the issue of charters on terms including payment was a mutually beneficial exercise.Footnote 65 The export of wool to the Low Countries began well before the Norman Conquest. Statutes and charters were issued to protect foreign merchants and would exempt them from some local tolls in exchange for payment of higher customs dues than were imposed on English merchants.Footnote 66
As a tool which provided the crown with a stream of revenue and a measure of control over the economy while also giving autonomy and profit opportunity to various collectives, the uses of charters proliferated. The new English colonies on the American continent were also authorised and controlled by royal charter. While it is not clear that the king was entirely aware of the non-conforming mission of the first inhabitants of New England, Charles I granted the New England Company a charter in March 1628 which provided the new settlement with the legitimacy that enabled their support of continued and increasing Puritan emigration.Footnote 67 That charter remained in force for 55 years, until Charles II revoked it in 1684. Because its terms did not follow the custom of requiring its board to sit in England, the New England company had a practical independence which enabled its board to follow Puritan covenant practices with very little royal oversight.Footnote 68 Virginia's charter was granted earlier, on 10 April 1606. Eight named individuals were authorised to create a colony, to spread the Christian gospel among the infidels and savages.Footnote 69
The history of the Church of Jesus Christ of Latter-day Saints in North America also includes a famous charter. The Mormon people had been hounded from the State of New York to Ohio, to Missouri and then to Illinois. In Illinois they were initially received as refugees from religious persecution and allowed to develop a malaria-infested swamp town called Commerce on the banks of the Mississippi. But they were industrious and the town grew and was renamed Nauvoo. While the people of Illinois were still sympathetic and the town was prospering, the Latter-day Saints sought and obtained a charter from the legislature of Illinois that had City of London spiritual genealogy. It was intended to enable local independent city government and to protect the religious freedom of its citizens. William E Berrett has written that Nauvoo's charter
provided for broad legislative power resting in a city council consisting of a mayor, four aldermen, and nine councilors elected by the qualified voters of the city.
It provided for a municipal court, independent of any but the Supreme Court of the State and the Federal Courts.
It provided for a city militia to be known as the Nauvoo Legion, to be equipped by the State and officered by citizens of Nauvoo.Footnote 70
Like the City of London, within its city limits, ‘the city was independent of all other agencies in the state. Only the repeal of the charter by the state legislature could curtail these powers.’ Though others disagree, Berrett continues that ‘No other municipality in America before or since has enjoyed such complete control of its own affairs.’Footnote 71 The Nauvoo Charter protected its citizens from the Missouri mobs, who still hounded the Latter-day Saints even though they had departed at gunpoint in accordance with the extermination order of Lieutenant-Governor Lilburn W Boggs in late 1838.Footnote 72 Under the Charter, Nauvoo citizens could apply by writs of habeas corpus for independent review of proceedings brought against their citizens in other jurisdictions, and this power protected Joseph Smith from many attempts to extradite him back to Missouri: though he had been released from one of their gaols when it became obvious that there was insufficient evidence to convict him on any criminal charge, it took many years for Missourian anti-Mormon hatred to abate.
Because of the generosity with which the Latter-day Saints were received by the State of Illinois in Nauvoo, they renounced the isolation they had adopted to survive in Missouri. The First Presidency of the Church in Nauvoo proclaimed that ‘fellow citizens of every denomination’ were welcome, as this place was intended as a haven for people of good will from anywhere. One of the first ordinances passed by the city council protected people of all faiths in their undisturbed enjoyment of religious freedom, but another prohibited the sale of hard liquor, effectively making Nauvoo an early prohibition town.Footnote 73
Though Nauvoo experienced huge growth (though it never became as large as Chicago, as some reports have suggestedFootnote 74 ), the Nauvoo experiment did not last. As in Missouri, the growing size of Nauvoo threatened the previous political power of non-Latter-day Saints communities in Warsaw and Carthage. Those towns also resented the autonomy which the Nauvoo Charter provided to its citizens and particularly to the Mormon leader, Joseph Smith. After Smith's assassination on 27 June 1844, the Nauvoo Charter was revoked by the legislature on 29 January 1845 and soon thereafter, when it became clear that no peace was possible between the Latter-day Saints and other locals, the Church leaders negotiated a truce with their neighbours so that they could prepare for yet another exodus, this time to the Salt Lake Valley in what is now the State of Utah.Footnote 75
WHAT FUTURE FOR CHARTERS AS INSTRUMENTS OF RELIGIOUS AUTONOMY AND FREEDOM?
The City of London's original charters saw aldermen, merchants, craftsmen and other service providers make covenants together about peace and protection that were sourced in mutual religious understanding. Although they were separate from the Church, they drew their understanding and values from the Church. In many eleventh- and twelfth-century European towns and cities, these covenant obligations were confirmed with oaths of loyalty and obedience to law. Covenant solidarity secured citizens against military and other action by other powers. In August 1213, Archbishop Stephen Langton envisioned ‘a biblical, covenantal kingship in England’ when he invited the barons to St Paul's Cathedral and unfolded the terms of Henry I's coronial charter of 1100 to them anew.Footnote 76 The New World citizens of Virginia and Boston also secured their safety and their religious freedom through the autonomy enabled by charters issued by English kings. The City of Nauvoo in nineteenth-century Illinois gained its autonomy and religious freedom through a charter issued by the State of Illinois.
Nowadays, when we speak of charters, we intend more aspirational documents. Formal legal protection is more often provided by statutes, but it was not always so. Magna Carta is the most famous example of an instrument which followed earlier precedents and was intended to confirm and secure autonomy for various groups against excessive government intervention in their affairs.
Most Western democracies now seek to protect values with bills of rights and constitutions. But charters have their place. Consider Australia, where there is no national bill of rights but where the State of Victoria and the Australian Capital Territory have passed bills of rights to remedy a perceived lacuna in the protection of civil liberties.Footnote 77 The State of Victoria calls its bill The Charter of Human Rights and Responsibilities Act 2006. The South African Constitution also anticipates the issue of further charters to protect citizen rights and freedoms more fully, including religious freedom.Footnote 78
Human rights instruments have proliferated around the world since the end of the Second World War, and the Universal Declaration of Human Rights set out aspirational standards intended to avoid further world wars. But, at the same time as countries have aspired to prevent war with Magna Carta-like written instruments, the world has been balkanising in consequence of imperial decolonisation and as groups of people within nations have sought autonomies different from those they inherited as their political birthright. Some countries resist any suggestion of such autonomy with violence.Footnote 79 Others find democratic solutions.Footnote 80 William the Conqueror's 1066 London Charter balanced his economic interests against the desires of the people of that city for limited autonomy. Later sovereigns have also used charters and charter-like agreements to balance economic and political interests in the interests of peaceful co-existence.
Magna Carta created an idea that arrived internationally when Eleanor Roosevelt described the Universal Declaration of Human Rights (UDHR) as ‘the international Magna Carta for all mankind’.Footnote 81 But the idea of rights which the UDHR introduced and claimed for the world is also evolving as groups of people seek new forms of autonomy and self-determination. Examples of those new interests are identified when we consider current maps showing the twentieth-century nations and ask how the boundaries will be changed as the decades of the twenty-first century unfold. Will there be homelands for Palestinians, Armenians and Kurds? Will the European Union survive to be joined by more Eastern European nations and will the United Kingdom leave after its experiment of more than 40 years? Or will the European Union be fractured by debt? Just as Pope Gregory VII's revolution in the twelfth century spawned the idea of nation-states, so the insight that groups of people have collective rights that may be more important than the rights of the individuals who compose those groups seems set to transform the world again.
CONCLUSION
In this article I have observed that the idea of ‘freedom of the Church’ may be on the cusp of a resurrection. Renewed interest in freedom of the Church is not the primary product of the advocacy of religious liberty, though in the US it does respond to the narrowing of individual religious exemptions from state action following the Supreme Court's decision in Employment Division v Smith. Modern freedom of the Church is rather a manifestation of the idea that associational freedom is at least as important as individual freedom and may be even more important, since the rights of a group of human individuals must be more important than the individual rights of one member of the group. That larger idea of association freedom has not yet trickled down to inform religious liberty debates in democratic nations beyond the US. However, such trickle-down seems inevitable, as international interest in the idea of association freedom is manifest in post-colonial lobbying for homelands for various indigenous peoples and in the jockeying of countries that wish to join and leave the European Union.
This article suggests that, if associational freedom does gain a foothold as a tool in the hands of religious liberty advocates, there is a vast deposit of associational understanding waiting to be mined. That understanding includes the recognition that it was associational freedom that underlay the establishment and the success of both the City of London and the British Empire.
While Magna Carta was not the first Anglo-American charter, there are several senses in which it was the greatest. Certainly it was larger than the Forest Charter, following the subdivision of Magna Carta's clauses in 1217; and it was the largest English charter ever conceived in the sense that it drew together the king, the lords, the merchants, the townsfolk and free men generally. But its meaning as an icon and as an emblem of liberty continues to exceed its written terms. It is and has been larger than life since it was first reissued by the new king in 1217.
The suggestion of this article is that two of its four unrepealed clauses are ready and waiting to contribute another round of human freedom to the world. For Magna Carta's idea that the Church and the City of London were always entitled to associational freedom and autonomy despite the demands of King John as the state executive has timeless resonance. Those clauses confirm that successful states do not have to rule or control every aspect of human life and association.
