By Scott McDermott
If I didn’t make you do a double-take with that title – well, I’m disappointed. Charles Carroll of Carrollton (1737-1832), the only Catholic signer of the Declaration of Independence, seems to have little in common with King Henry II’s 12th-century Chancellor and Archbishop of Canterbury, St. Thomas Becket. Obviously, Becket was a priest, while Carroll, a married layman, earned vast wealth through his plantations and business ventures. Carroll died in his bed at age 95, while Becket was murdered at the altar in his prime. One might argue (though a great many Catholics would take issue with this) that both men struck a blow for the prerogatives of the Church against the State, Becket in opposing Henry’s attack on the ecclesiastical courts and the right of appeal to Rome, Carroll by helping to obtain freedom of worship for American Catholics. But to obtain this, Carroll had to acquiesce in a separation of Church and State which, though far from complete during the early American Republic, went far beyond anything Becket could have even conceived of.
As statesmen, though, they shared an attitude toward the English common law – inchoate in Becket’s time, fossilized by Carroll’s – and, in promoting this view, a temperament which might be described as “determined” or, perhaps more accurately, just plain ornery. Based on their legal studies, both Becket and Carroll thought that natural law must take precedence over human law, removing the possibility of what I described in my biography of Carroll as the “politics of will.” The goal for both was what Carroll’s friend John Adams described in Massachusetts’ 1780 Declaration of Rights as “a government of laws and not of men,” and this great desideratum led both Carroll and Becket to adopt a contrarian stance which their contemporaries often saw as ridiculous and indefensible and which, even in hindsight, can appear extreme.
What Charles Homer Haskins called the “Renaissance” of the 12th century brought a tremendous advance in the study of law. The rediscovery of the Digest, part of the Corpus Iuris Civilis compiled under the Emperor Justinian, in the late 11th century fueled the development of both canon law and civil law. One might be tempted to call this a parallel or even an antagonistic development, given that canon law and civil law were deployed as part of the mounting struggle between Popes and Emperors for primacy in Christendom, but this would not be accurate. Canon law influenced changes in civil law, and vice versa; bishops, who were often trained canonists, frequently served as judges in secular courts, and Popes at times used Roman civil law to score points against the Emperors. For example, the Roman law of corporations provided the rationale for the Popes’ allies, the Italian city-states, to form “communes” which claimed the right to make rules for their members, as corporations did, thus establishing a de facto independence from imperial control.
Both canon and civil law formed part of the curriculum at the great law school of Bologna, founded in the early 12th century and featuring as its star professor Master Gratian, the author of the Decretum, a.k.a. The Harmony of Discordant Canons, the first serious attempt to systematize canon law. The Decretum (Thompson, trans.) opens with the words “The human race is ruled by two things, namely, natural law and usages.” By “usages” Gratian means human law, whether unwritten customs or written ordinances. Gratian goes on to say that “natural law prevails by dignity over custom and enactments. So whatever has been either received in usages or set down in writing is to be held null and void if it is contrary to natural law.” I would argue that this statement, as it ramified through European history, provided the rationale both for Becket’s defiance of Henry II and for the American Revolution.
Becket, who studied law at Bologna and at Auxerre, was of course aware of this teaching. He would have also encountered it in the thought of his friend and colleague, John of Salisbury, who in the Policraticus wrote of the supremacy of divine and natural law over human law: “those who minister to Him in the sphere of human law are as much inferior to those who minister in divine law as things human are below things divine” (Dickinson, trans.) John was not trying to insist that the officers of the “Church” took precedence over those of the “State”; the separation of these spheres was but notional, and the leaders of both were often the same people (on this point I must acknowledge the work of Dr. Andrew Jones). His point was that human law must look to natural law as its boundary and its source of legitimacy. “For the authority of the prince depends upon the authority of justice and law; and truly it is a greater thing than imperial power for a prince to place his government under the laws, so as to deem himself entitled to do nought which is at variance with the equity of justice.”
One would be hard pressed to envision Henry Plantagenet as John of Salisbury’s tyrant who should be resisted. He was temperamental, to be sure, but believed in the rule of law; in fact, he was arguably the greatest legal reformer in English history. Henry II, very conscientiously, set out to undo the baleful effects of anarchy inherited from his predecessor, King Stephen, as a result of the civil war with Henry’s mother, the Empress Matilda. Adopting a “can-do” attitude and rejecting royal ceremony and pomp, Henry at one point took a vow never again to wear his crown. Becket, on the other hand, as Henry’s chancellor, famously toured Europe with an enormous entourage and baggage trains full of musicians, fine food and wine, and fabulous silks and brocades.
In the project of reuniting his kingdom, Henry needed the support and prestige of the Church. Accordingly he insisted that his trusty chancellor be chosen Archbishop of Canterbury, and Becket was happy to accept this decidedly non-canonical election. The new Primate immediately abandoned his former luxuries and adopted an asceticism which to Henry, who knew Becket’s tastes well, must have seemed a rather annoying pose. The Archbishop’s actions seemed designed to provoke a quarrel with the Crown, as when he expelled by force squatters who had occupied land belonging to the see of Canterbury during the civil war (it was to prevent vigilante actions like this that the writ of novel disseisin was introduced under Henry – writs were used to remove legal cases, in this case disputes over land ownership, from shire and hundred courts into the royal courts, so that the King’s peace would prevail throughout the realm).
The break came in 1164, when Henry issued the Constitutions of Clarendon. This document represented the King’s attempt to minimize the problems caused by the existence of a completely separate legal system within his kingdom, the ecclesiastical courts of the Catholic Church, which had jurisdiction over certain types of cases, including those pertaining to oaths and marriages, and over everyone in holy orders. Henry deployed the most up-to-date legal procedures; for example, an “inquest of twelve lawful men,” in the presence of the King’s chief justice, was to determine whether a property dispute belonged in a lay or a church court. This early anticipation of trial by jury seems as reasonable, in hindsight, as Henry’s approach to the issue of “criminous clerks.” Anyone in holy orders, including the numerous minor orders existing in the Church at that time, had to be tried in ecclesiastical courts, which normally (because clerics could not shed blood) imposed no stronger censures than fines and defrocking. (This privilege evolved into the “benefit of clergy,” by which, because of the Church’s monopoly on education, anyone who could read was exempt from the more sanguine punishments.)
Thus, the numerous Englishmen in holy orders could commit rape, robbery, blackmail, extortion, or murder and get off practically scot-free – a serious social problem.
Henry’s solution was not to abolish the system of ecclesiastical courts, but merely to require that criminous clerks be degraded from their orders and handed over to the secular courts so that they could receive the punishments they deserved. In some sense the Constitutions of Clarendon did constitute an attack on the prerogatives of the Church, especially in the provision banning appeals to Rome without permission of the King, but Henry’s proposals were far from outrageous. Indeed, Becket showed himself willing that he and the other English bishops should agree to the document; at first, he insisted that they should add the phrase “salvo ordine meo” – saving my order, that is, provided that the Constitutions do no harm to the privileges of the Church. But Becket eventually dropped even this proviso and agreed to the document verbally. He left himself room for maneuver, however, by declining to affix his seal, so that when the great lawyer-pope Alexander III eventually condemned the Constitutions, Becket – over the objections of most of the English episcopacy – went into opposition, resulting in his exile and, ultimately, his death.
I do not mean to say that Becket was wrong to defy his monarch; quite the opposite. But I would like to suggest that Becket’s heroism was of the finicky sort that rarely has mass appeal. The conflict between Becket and Henry is often presented as a clash of domineering personalities, but the real issue was far more subtle. Henry’s legal advisers, as well as canonists within the Church hierarchy, were pushing legal reforms based on the rediscovery of Roman law, and both groups – to the extent we can even distinguish them – had the best of intentions. The question was who would have the final say as to whether “customs,” written or unwritten, conformed with the natural law as Gratian insisted they ought. And Thomas understood that the Church could not relinquish its position as the great interpreter of natural law. To allow any monarch, no matter how visionary, the privilege of defining natural law would open the way for arbitrary power. What forced the issue, as Richard Winston has argued, was Henry’s tactlessness in demanding that the bishops approve a written document which threatened the Church’s position as arbiter of natural law; an oral agreement would have left the bishops some wiggle room and Becket would probably have assented. But as it was, he had to embrace dissent and martyrdom over this rather abstruse legal point.
Charles Carroll of Carrollton, too, was known to split a few hairs in the service of natural law. In defying his monarch, George III, whom Pope Pius VI called the “best of sovereigns…full of mildness to Catholics,” Carroll stretched the boundaries of Catholic social teaching in his day. But Carroll staunchly defended the fundamentals of Catholic political thought – corporatism, subsidiarity, popular sovereignty, the primacy of the common good, and, especially, natural law thinking – throughout his long career. Having studied Roman law at Bourges prior to enrolling in London’s Inner Temple, Carroll rejected the “chaos” of English common law, which “disgust[s] a liberal mind,” in favor of the more systematic continental tradition, based firmly in natural law. By signing the Declaration of Independence, Carroll risked his life and his immense fortune for the sake of “the Laws of Nature and of Nature’s God.”
However, during Carroll’s lifetime, natural law thinking evolved in directions which Carroll could not condone. The natural law, whose first precept is the universal human impulse toward self-preservation, thus implies the natural rights to life, liberty, and property (the philosophical Jefferson disliked the materialism of the latter and substituted “pursuit of happiness,” intending perhaps to encourage the true happiness that comes with contemplation of the true, the good, and the beautiful, but inadvertently opening the way for a slew of self-interested misreadings). In the Catholic tradition, the natural rights must be harmonized with each other (thus the “liberty” of controlling one’s body does not take away the basic right to life) and subordinated to the natural law – another way of saying that we ought not to conceive of rights as something separate from duties. Individual rights must be protected without derogating from the common good, the rights of the community as a whole. Carroll was fond of quoting the ancient maxim of Cicero, salus populi suprema lex – the well-being of the people is the supreme law.
However, early on, Americans showed a tendency to detach individual rights from the roots in natural law, elevating civil rights to the status of natural rights and absolutizing the natural rights so as to infringe equally valid rights. A classic example was the growing insistence on the right to property in human beings – slaves – without consideration of the slaves’ natural right to liberty. Carroll never signed on to this distortion of natural law thinking, but remained a slaveowner himself, although (like Jefferson, Washington, and Madison) he knew slavery was a “great evil.” For obvious reasons, the Catholic signer did endorse the elevation of freedom of religion to something beyond what it had traditionally been, a mere civil right which could be revoked at will. “To obtain religious, as well as civil liberty,” he wrote in 1827, “I entered zealously into the Revolution.”
But Carroll drew the line when it came to the growing conviction that every adult (white) male had an inherent right to vote. Like John Adams and many other Founding Fathers, Carroll was unapologetically elitist as a revolutionary – harnessing the energies of the mob and channeling them in constructive directions, helping to make the American Revolution very unlike the French. It was Carroll who invented the first electoral college in American history as a mechanism for electing the Maryland Senate, and this technique of indirect democracy was borrowed by the Constitutional Convention as the means of electing the President of the United States. During the Convention, Carroll sent his recommendations to his cousin Daniel Carroll, one of Maryland’s delegates. Astonishingly, Carroll urged that only men who owned one hundred fifty acres of land should vote. “I may be singular in my way of thinking,” Carroll admitted, but “speculative rights, which cannot be exerted without detriment to the Community, ought they to be preserved?”
Carroll’s strict interpretation of natural law thinking, and his stand against the onslaught of new “speculative rights,” eventually made him a political pariah. As a member of the Maryland Senate, Carroll’s resisted the populist tidal wave in the form of projects such as the indiscriminate printing of paper money and the confiscation of property from former Tories. “Carroll dissenting” became a by-word because of his habit of voting in the minority. In 1801, as part of the Jeffersonian Revolution, Maryland eliminated all property qualifications for voting, establishing white manhood suffrage. Carroll immediately lost his Senate seat and never again held elective office. He did not accept his political exile gracefully, fulminating at the excesses of Democratic-Republican political leaders like Jefferson and Madison. “A more miserable set of statesmen could not be selected to disgrace our country,” Carroll wrote in 1809. He despised Napoleon, whom he saw as the epitome of the popular despot, and took the radical step of buying British Navy stock during the Napoleonic Wars (while the British were impressing American seamen into the Navy), refusing to divest even after the United States declared war on England in 1812.
Like Thomas Becket, Carroll’s obstinacy earned him banishment to that social wilderness reserved for curmudgeons. But just as Becket would not allow the privilege of interpreting natural law to be wrested away from the Church, Carroll, until the end of his life, insisted that the natural law tradition be upheld in its integrity. Declining to endorse the 1828 Presidential bid of Andrew Jackson, who would be carried to power on the shoulders of an army of new voters and become the American symbol of the politics of popular will, Carroll remarked that he hoped the office would be bestowed on “him whose measures will be solely directed to the public good,” the object of politics in the Catholic tradition. But in spite of his unwavering adherence to the classical interpretation of the “Laws of Nature,” Carroll enjoyed a late-career renaissance when, in 1826, he became the last surviving signer of the Declaration, a public comeback somewhat analogous to Becket’s popular rehabilitation after his martyrdom. When Carroll died in 1832, the popular press lauded him as the “last of the Romans” -- a surprising turnaround which may bring modern Catholics hope as we stubbornly defend the truth of reality, as expressed in the natural law of God, against our own contemporary forms of popular madness.
Scott McDermott received his Ph.D. in American History from Saint Louis University in 2014. He is currently Assistant Professor of History at Albany State University in Albany, Georgia. Scott was born in Hannibal, Missouri and currently lives in Georgia. This is his first book.
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