Sunday, July 19, 2009

The Court of Conscience

From Kairos Journal

'As one sixteenth-century bishop reported it, “[Y]our heart would mourn to see the towns, villages, hamlets, manor places, in ruin and decay, the people gone, the ploughs laid down.”1 The cause of this misery was land enclosure, whereby wealthy farmers carved out property for their herds (and so themselves) by erecting stone fences in the commons. Small farmers lost their fields and were ruined.

One culprit was Richard Foxe, a prominent advisor to Henry VIII, “lord privy seal, bishop of Winchester, and founder of Corpus Christi College, Oxford.”2 One might think him immune from censure, but Cardinal Wolsey (c. 1475-1530) was unimpressed with Foxe’s high station. As chancellor, Wolsey ordered the enclosures destroyed,3 and even Foxe felt the sting of his ruling. He admitted his offense, claimed ignorance of the law, and offered to pay the fines.4

Of course, Cardinal Wolsey was not without his faults. He loved and conspicuously demonstrated wealth and power, involving himself in international intrigues on behalf of Henry VIII. He was the first English clergyman to wear silk.5 His ambition was to be Pope.6 Nevertheless, “[h]e was loved by the poor and hated by the powerful for his impartial administration of justice . . . [H]e opened his court to all who complained of oppression, and he fearlessly punished the guilty, however exalted.”7 This was his international reputation,8 and even the inspiration of poets.9

Such was proper for the chancellor, a position with lineage back to Roman times. It was there that an usher served ad cancellos, at the wooden screen dividing the crowd from the judges. Through the centuries his station improved, from escorting plaintiffs before the council, to serving as their secretary, to offering them advice to even himself judging.10 Charlemagne gave the office high status, and Edward the Confessor brought the tradition to England, where the chancellor became eventually the king’s “right-hand man” and “the most powerful official in the realm.”11 Beginning with Herfast, consecrated Bishop of Elmham in 1070, chancellors were generally clergymen until the Reformation, when the office went mainly to lawyers, such as Sir Thomas More.12

As the most literate of citizens, clergymen were the obvious choice for chancellor.13 Furthermore, bishops brought centuries of Christian instruction and ecclesiastical adjudication to the king’s court. Mindful of Jesus’ teachings, these chancellors were alert to the plight of the poor and weak. When the powerful or clever attempted to victimize these people, albeit within the bounds of strict legality, chancellors intervened. As Lord Chancellor Wolsey explained, the Court of Chancery came to be called the “Court of Conscience” because it executed “justice with clemency, where conscience [was] opposed by the rigour of the law.”14

Courts of Conscience exercised jurisdiction “over the affairs of infants, lunatics, married women, poor persons and, in a slightly different context, borrowers.”15 Following Christ, who was “no respecter of persons,” they introduced the notion of “equity,” from the Latin aequitas (leveling).16

Thus the chancellor injected decency into common law, that body of rules forged and polished in the courts of old, the basis of much Western law today.17 Those enamored of an absolute “wall of separation” between God and state should understand that the Word of God and God’s men were present at the very formation of the law they claim to cherish and serve. The courts should show reverence toward the Lord, for their very existence and nobility rest upon the painstaking efforts of His ancient ministers.



Footnotes:

1
A. F. Pollard, Wolsey (Longdon: Longmans, Green and Co., 1929), 86. The longer quote reads, “[Y]our heart would mourn to see the towns, villages, hamlets, manor places, in ruin and decay, the people gone, the ploughs laid down, the living of many honest husbandmen in one man’s hand, the breed of mannery by this means suppressed, few people there stirring, the commons in many places taken away from the poor people, whereby they are compelled to forsake their houses, and so wearied out that they wot not where to live, and so maketh their lamentation.”

2
Ibid., 10-11.

3
Ibid., 86.

4
Ibid., 85.

5
Will Durant, The Reformation, in The Story of Civilization, vol. 6 (New York: MJF Books, 1957), 528.

6
Elgin Moyer, Wycliffe Biographical Dictionary of the Church, revised and enlarged by Earle E. Cairns (Chicago: Moody Press, 1982), 440.

7
Durant, 529.

8
A Venetian ambassador once reported to his superiors, “[T]he cardinal had the reputation of being extremely just, that he favoured the people exceedingly, especially the poor, hearing their suits in person, seeking to dispatch them promptly, and requiring counsel to plead their causes without fee.” Pollard, 79.

9
Ibid. Poet John Skelton captured Wolsey’s courtroom behavior toward “blue bloods” in his work, “Why come ye nat [not] to courte?” In it he pictured Wolsey as shaking them by the ear and intimating them with dismissive speech.

10
The Compact Edition of the Oxford English Dictionary, vol. 1 (Oxford University Press, 1971), 376.

11
Philip S. James, Introduction to English Law (London: Butterworths, 1976), 24.

12
George W. Keeton and L.A. Sheridan, Equity (Milton, Oxon: Professional Books Ltd, 1976), 30, 35.

13
William Blackstone, Blackstone’s Commentaries on the Laws of England, vol. 3 (1768; reprint, Chicago: University of Chicago Press, 1979), 47.

14
F. E. Dowrick, Justice According to the English Common Lawyers (London: Butterworths, 1961), 80.

15
Keeton, 33.

16
James 2:5.

17
Oxford’s Sir Carleton Kemp Allen has argued that principles of equity might have emerged without the chancellor’s influence. See Sir Carleton Kemp Allen, Law in the Making (Oxford at the Clarendon Press, 1964), 414. But this is just so much speculation. And Allen readily admits that the theological roots are obvious (Ibid., 446).'

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