Great Christian Jurists in English History
edited by Mark Hill QC and Richard H. Helmholz
This volume is part of a fifty-volume series on “Great Christian Jurists in World History, “presenting the interaction of law and Christianity through the biographies of 1000 legal figures of the past two millennia. Commissioned by the Center for the Study of Law and Religion at Emory University, each volume in this series focuses on a specific country, region, or era, and it samples the life and work of a score or more of its greatest legal minds over the centuries. These legal minds include not only civil and canon lawyers and judges but also theologians, philosophers, and church leaders who contributed decisively to legal ideas and institutions, or who helped create landmark statutes, canons, or cases. Thus, familiar Christian jurists like Gratian, Grotius, Blackstone, Kuttner, and Scalia appear in this series, but so do Augustine, Isidore, Aquinas, Calvin, Barth, and Romero. This biographical approach is not intended to deprecate institutional, doctrinal, social, or intellectual histories of law and religion, nor will it devolve into a new form of hagiography or hero worship of dead white males. It is instead designed to offer a simple method and common heuristic to study the interaction of law and Christianity around the world over the past two millennia.
Columbia University Press opened this series in 2006 with a three-volume work on Modern Christian Teachings on Law, Politics, and Human Nature, featuring thirty modern Catholic, Protestant, and Orthodox Christian figures. Cambridge University Press has new titles on great Christian jurists in the first millennium, as well as in English, Spanish, French, Lowlands, and American history. Routledge is taking up the Italian, Nordic, Russian, Welsh, and Latin American stories; Mohr Siebeck the German story; Federation Press the Australian story. Forthcoming titles will cover great Christian jurists in the history of Scotland, Ireland, Austria, Switzerland, Greece, and various countries and regions in Eastern Europe, the Middle East, Africa, and Asia.
An Overview by the editors
Mark Hill QC and Richard H. Helmholz
The Great Christian Jurists series is an ambitious project to create a library of some fifty volumes, honoring lawyers the world over whose Christian faith has been reflected in their work and achievement. The volume for England was published in 2017. It included a Foreword by Lord Mackay of Clashfern, who was Lord Chancellor under Prime Minister Margaret Thatcher and who continues to play a role in national life as a distinguished member of the House of Lords. He would himself have been ripe for inclusion in our volume, had he not been Scottish. In his Foreword, he encapsulated the ethos of the volume.
Much has been written about the lives and achievements of the many distinguished lawyers and judges who have made a lasting contribution to English jurisprudence from medieval times to the present day. Much also has been written on the influence of Christianity in English society over those centuries. This collection, one of a series of national studies, is novel in that it seeks to explore the life and faith of Great Christian Jurists in English History.
Lord Mackay identified a tendency, particularly in common law jurisdictions, to divorce the dispassionate judge from his or her personal beliefs. In taking the judicial oath, newly appointed judges swear to “do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.” The world view of a judge is irrelevant to the judicial task. But this exploration of the religious tenets of titans of English law and justice adds light and texture to legal history and provides insights into the role of religion in public life today.
Modern law treats adherence to the Christian religion as a matter of private choice. Outside special spheres like the internal regulation of churches and their members, texts from Scripture and other spiritual authorities rarely serve as sources of law. Yet this was not always so. That Christianity formed a part of the law of England was once a commonplace among English lawyers. They repeated it in many and varied circumstances. Whether the Christian religion should occupy a place in the law of the land was not even an open question. In the seventeenth century, Sir Edward Coke recognized the close connection between the law of God and the law of men. In the eighteenth century, Sir William Blackstone expressed the same sentiment, holding that secular prosecution and corporal punishment of common blasphemers was justified because “Christianity is part of the laws of England.”14 William Blackstone, Commentaries on the Laws of England 59 (1765-69). If today we are not aware of the historical connection between law and religion, it is because modern lawyers have allowed the subject to “fade into disuse.”2 Stuart Banner, “When Christianity was Part of the Common Law,” 16 L & Hist. Rev. 27, 27 (1998).
This volume seeks to reverse the trend by uncovering the place that Christianity played in the lives and actions of the famous lawyers selected, using points of substantive law to provide readers with a fuller understanding of the place of religion in the careers of these men. Two of them were civilians, the name commonly used to refer to lawyers trained in traditions of Roman law who served primarily in the courts of the church and the admiralty. William Lyndwood and Stephen Lushington, who appear at opposite ends of the book, were the civilians. Two others, Henry of Bratton and Richard Hooker, were in holy orders and do not fit neatly into either category. The rest were common lawyers. The aim of each chapter is to enlarge upon religion’s place as found in the lives of English lawyers, reflected in either general statements of principle or in treatments of the laws of the nation. Taken together, the chapters make four separate additions to our understanding of what it meant to accept and act upon the maxim that Christianity was part of the law of England.
A Fuller Understanding of the Lives and Opinions of the Lawyers
By looking primarily at individuals rather than legal doctrine, we actually learn quite a bit about what the law’s connections with religion meant in practice. The volume’s authors have uncovered aspects of the views and actions of their subjects that have often been left out of existing accounts of their place in English legal history. It may be thought that concentrating on religion would narrow, or even distort, our understanding of the men described —; that it would give a one-sided picture. In fact, the reverse is true. Concentrating upon religion has actually enlarged what we know about them. It fills a gap in existing accounts.
In writing about John Selden or Sir Edward Coke, for example, most historians have dealt with religion’s place in their lives mainly by focusing on their subject’s anti-clerical views. Selden’s opposition to the clergy’s claim that tithes were due iure divino and Coke’s attempts to extend the reach of writs of prohibition at the expense of the jurisdiction of the ecclesiastical courts take centre stage in most accounts.3 E.g., Allen Boyer, Sir Edward Coke and the Elizabethan Age ( 2003). But not every student of the subject would have recalled that Selden “liked the settled doctrine, liturgy and traditions of the Church of England and the settled Anglican episcopacy.” And who would have remembered that week after week Sir Edward Coke sat under Richard Hooker in the Temple Church on Sunday mornings carefully taking notes of the sermons he heard. We now have a picture of Coke as a man “devout without being saintly,” and find Selden portrayed as a Christian impatient with some of the church’s doctrines, but a “man of simple and steady Christian piety” nonetheless.
Even taking the lawyer whose attitude towards Christianity was the most ambivalent, F.W. Maitland, the concentration on religion proves useful in enlarging our understanding of a man who described himself as “a dissenter” from all the churches.4Frederic William Maitland, Preface to Roman Canon Law in the Church of England vi ( 1898). He ceased to attend church regularly after he reached the age of thirty and brought up his daughters to be “religiously literate.” And for each of the subjects, concentrating on religion teaches us something about the person. Lord Kenyon’s “threadbare dress and oft-soled shoes” may be regarded as a sign of his Christian modesty. William Blackstone, described as a Christian habitually “reluctant to wear his heart on his sleeve,” had taken a serious interest in theological issues as a young man. The theological writings of Sir Matthew Hale allows readers to see clearly that the “rigorous observation of the Lord’s Day” which characterized Hale’s activities on Sundays had definite results.
Consistency and Divergence in Approaches to Law Derived from Religion
Religion mattered to all of the lawyers surveyed, and they sought to put what they believed into practice. But they did not always do so in the same way. A theme recurring in virtually all their lives and works is the importance of making a secure place that equity could and should play in the law courts. In their eyes, its proper influence was not confined to the Court of Chancery. Summum ius summa iniuria, wrote Cicero, and medieval jurists on the Continent agreed. The same sentiment was echoed in the writings of the English lawyers. God tempers his law with mercy and so should earthly law. To support the argument that judges should “deploy mercy in many contexts” by relaxing the law’s sanctions in cases where equity and strict law came into conflict, Hooker appealed to the authority of the great fifteenth century canonist, Nicholaus de Tudeschis. Christopher St German similarly called upon the works of the theologian, Jean Gerson, in defining the duty of the English clergy to secure justice for the men and women entrusted to them.
Lord Mansfield’s life and career – particularly his influence on the English law of contracts – provide a well attested example. He made free use of “equity” and “natural justice” and “conscience” to shape the law, as in the doctrine of consideration and in the scope of actions for money had and received. He espoused a jurisprudence that enlarged the scope of “natural justice and equity,” describing his court as “the custodian of the morals of the people.” Unlike Lord Kenyon, who “preached from the Bench,” Mansfield’s words rarely went beyond what law and circumstance required.
Religious liberty’s connection with Christianity presents a similar example of change over time. Roundell Palmer, first Earl of Selborne, believed that “the principle of religious liberty” went hand in hand with a belief that God’s will had provided the undisputed source of the doctrines and powers of the Church of England. He voted against continuing the disqualifications of Jews from public office and he argued against a return to enforcement of the penal laws against Roman Catholics – stands that cost him his seat in Parliament. His views of the scope of Christian liberty are, however, much harder to find in earlier centuries than his own. Lord Mansfield shared them in some measure, and even the canon law contained the seeds that might have promoted freedom of religion, had they been allowed to sprout. The Toleration Act of 1689 took a step in that direction. Lord Kenyon’s censorious attitude towards adultery was doubtless commonplace, though few would have been quite so insistent in giving voice to their opinion. Coke made a joke out of it, but the laugh depended upon an assumption of a general disapproval of adultery among his hearers.
Additions to our Understanding of the Development of the Common Law
Concentration on religion enlarges our understanding of the common law itself. The chapter on Henry of Bratton not only contributes to the vexed question of the authorship of Bracton, the treatise which travels under his name, it also sheds light on the mid-thirteenth century when clerics, like Bratton, then sat as judges in the royal courts. They were not professional canonists, but their professional writings were shaped in part by “a diverse range of classical or papal precedents [and] Biblical motifs.”
In later centuries, Kenyon regarded English law as “subservient to the laws of morality and religion.” He told jurors in a criminal trial for libel and blasphemy that they “sat here in a Christian assembly” and urged them to act accordingly. Roundell Palmer made contributions to nineteenth century Parliamentary legislation: his “spiritual sympathies” shaped at least some of the statutes. From Magna Carta forwards, religious influences have mattered in shaping the contents of some English statutes. Lord Denning did have a “passion for justice in particular cases,” but he developed principles of law that were based ultimately upon religious foundations and did so in a “coherent and systemic manner.” His opinions were not based on emotion or on a disdain for either precedent or legal reasoning. His attitude harkens back to William Lyndwood’s justification for enforcing sworn promises in the ecclesiastical courts because of the invocation of God’s name that every oath involved. The details are different, but the impulse is the same. Richard Hooker speaks of the importance of conscience in explaining and justifying the necessity of relaxation in parts of the law of the church.
The Wide Horizons of English Lawyers
The fourth contribution made to our appreciation of the character of the history of English law by the volume’s concentration on religion is an appreciation for how far afield from many current assumptions the lawyers surveyed in its pages were willing to go in search of law and justice. The extent of their interest in the ethical norms taken from the law of nature is one of the unanticipated results that emerges from the chapters of this volume. The introduction to Bracton begins with a statement of law’s meaning and purposes, drawing upon what had been written by the classical Roman jurists. It includes a definition and brief discussion of natural law. It is what “God himself [has] taught all living things.” God and the law stand above the king, acting as a “bridle” upon him. And in the modern age, Lord Denning described “a natural law approach that had its root source in the Christian faith.” Selden and Hale both wrote treatises devoted to the law of nature. The enduring character of the view of all law as somehow connected with natural and divine law is perhaps the most striking conclusion that emerges from these surveys of Christian jurists. ♦
Mark Hill QC is honorary professor at the Centre for Law and Religion at Cardiff University, Wales. He co-edited Great Christian Jurists in English History with Professor R H Helmholz of the University of Chicago. This article is an abridged version of their introduction to that work.
Richard H. Helmholz is the Ruth Wyatt Rosenson Distinguished Service Professor of Law at the University of Chicago Law School, and a noted scholar of Canon Law and legal history.