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The Devil's Law Cases

  • Duncan Henderson (a1)

There exists a substantial body of legal and historical research on the case of Fendall v Wilson, in which the Privy Council famously ‘dismissed Hell with costs’. However, the case has never been examined in the context of Anglican debate over Hell and the Last Judgment in the second half of the nineteenth century. Despite its remarkable parallels with Fendall, Jenkins v Cook has been forgotten by most modern lawyers and has never been examined in parallel with Fendall. This article analyses the parts of the two cases that deal with Hell, the Last Judgment, and the Devil in the context of mid-nineteenth-century Anglican doctrinal litigation, and of the controversy over Hell in general and Essays and Reviews in particular. It also reconstructs some of the important factual elements of Jenkins that were not recorded in the first instance or appellate judgments. The contextual analysis of the judgments and unrecorded facts shows some surprising and evasive judicial responses to the doctrinal questions of whether Hell and the Devil exist and if so in what form. The article suggests that religious politics, rather than ecclesiastical jurisprudence, are the likelier cause of those responses. The article provides a historical contribution to the growing body of research and comment on the interplay of law and religion, in particular exemplifying some of the difficulties that arise when issues of religious doctrine are brought before purportedly secular courts.

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1 O Davies, ‘Talk of the Devil: crime and satanic inspiration in eighteenth-century England’, <>, accessed 11 October 2012.

2 Fendall v Wilson (1862) 1 New Rep 213 (hereafter ‘Wilson Arches’); Wilson v Fendall; sub nom Williams v Bishop of Salisbury (1863) II Moore New Series 375 (‘Wilson PC’); Jenkins v Cook (1872–75) LR 4 A & E 463 (‘Jenkins Arches’), (1875–76) LR 1 PD 80 (‘Jenkins PC’).

3 Knight, F, The Nineteenth-century Church and English Society (Cambridge, 1995), pp 48, 56.

4 Rowell, G, Hell and the Victorians (Oxford, 1974), p 29.

5 Maurice, F, ‘On eternal life and eternal death’, in Theological Essays (second edition, Cambridge, 1853), pp 442478.

6 All references are to the Authorised Version of the Bible.

7 Abbott, E and Campbell, L, The Life and Letters of Benjamin Jowett, M.A. Master of Balliol (London, 1897), vol 2, p 90.

8 Maurice, ‘On eternal life’, p 481.

9 Brown, D, ‘The devil in the details: a survey of research on Satan in biblical studies’ (2011) 9(2) Currents in Biblical Research 200201.

10 Davies, ‘Talk of the Devil’, p 8.

11 The last parliamentary grant for church building was made in 1824. In 1828, the Anglican monopoly on public offices was repealed with the Test and Corporation Acts. In 1829, the Catholic Emancipation Act permitted Catholics to sit in Parliament. In 1837, the Births and Deaths Registration Act gave people the right to opt out of Anglican rites at birth and marriage. See also Smith, C, ‘Ridsdale v Clifton: representations of the Judicial Committee of the Privy Council in ecclesiastical appeals’, (2009) 19(3) King's Law Journal 554.

12 Smith, C, ‘Martin v Mackonochie / Mackonochie v Penzance: a crisis of character and identity in the Court of Arches?’, (2003) 24 JLH 257259.

13 Smith, C, ‘The quest for an authoritative court of final appeal in ecclesiastical causes: a study of the difficulties, c. 1830–1876’, (2011) 32 JLH 189213.

14 For some comic representations of practice in the ecclesiastical courts in the Victorian period, see Charles Dickens' Sketches by Boz and David Copperfield.

15 Appellate Jurisdiction Act 1876; Cornish, W et al. , Oxford History of the Laws of England, vol 11 (1820–1914) (Oxford, 2010), p 397; Howell, P, The Judicial Committee of the Privy Council 1833–1876 (Cambridge, 1979), pp 71, 217. The last reported Privy Council judgment involving episcopal assessors was Rector and Churchwardens of the Parish of St Nicholas Acons v London County Council [1928] AC 469.

16 Knight, Nineteenth-century Church, p 165.

17 Ibid.

18 Smith, ‘Ridsdale’, p 555. For accounts of this trend, see Baker, JFamous English canon lawyers, part 9: Stephen Lushington, DCL’, (1996) 4 Ecc LJ 556; Baker, J, ‘Famous English canon lawyers, part 10: Sir Robert Phillimore, QC, DCL and the last practising doctors of law’, (1997) 4 Ecc LJ 709; Smith, ‘Martin’.

19 Gorham v Bishop of Exeter (1850) Brod & F 64, Cripps' Church Cas 266, 14 Jur 443. Edmund Moore edited a special report of the judgment (London, 1852). A printed version of the judgment (published by Seeleys) is available at <>, accessed 11 October 2012. References to the judgment are to the pdf copy available on that website, unless otherwise stated.

20 Gorham, p 15. Cited by Lushington in his judgment in Williams' case ((1862) 1 New Rep 196, at 199) and by the Privy Council on appeal: Wilson PC, at 424.

21 Wilson Arches, at 219 – possibly inaccurate. Seeleys' version of the Gorham judgment reads (p 8): ‘If there be any doctrine on which the Articles are silent or ambiguously expressed, so as to be capable of two meanings, we must suppose that it was intended to leave that doctrine to private judgment, unless the Rubrics and Formularies clearly and distinctly decide it’.

22 Cornish et al, Oxford History, pp 395–397.

23 Powell, B, ‘On the study of the evidences of Christianity’, in Wilson, H et al. , Essays and Reviews (seventh edition, London, 1861), p 139.

24 For a summary of the publications in the Essays and Reviews debate, see Altholz, J, ‘The mind of Victorian orthodoxy: Anglican responses to Essays and Reviews’, (1982) 51 Church History 186.

25 Shea, V and Whitla, W, Essays and Reviews: the 1860 text and its reading (London, 2000), pp 1420.

26 In the Illiad, Thersites was a rank-and-file soldier of the Greek army during the Trojan War, who was punished for mocking Agamemnon and Achilles: see Shea and Whitla, Essays, p 343. Hyperbolos, an Athenian demagogue and one of the first Athenian political leaders who was not an aristocrat, was represented as dishonourable by the comic writers of ancient Greece; he was assassinated by oligarchic revolutionaries. Wilson uses Thersites and Hyperbolos as examples of petty criminals or sinners: see Wilson, H, A Speech Delivered before the Judicial Committee of Her Majesty's Most Honourable Privy Council in the Cause of Wilson v Fendall on Appeal from the Arches Court of Canterbury (London, 1863), p 145.

27 A theory about the status of the unbaptised who die in infancy, too young to have committed personal sins but not having been freed from original sin.

28 Wilson, H, ‘Séances historiques de Genève: the national church’, in Shea and Whitla, Essays, p 309. In the final sentence, Wilson paraphrases 1 Corinthians 15:28.

29 (1861) 110 Quarterly Review 273.

30 Davidson, R and Benham, W, The Life of Archibald Campbell Tait: Archbishop of Canterbury (London, 1891), vol 1, pp 281283.

31 The Times, 14 March 1861.

32 See section 3 of the Act: a commission of inquiry could be laid against ‘any Clerk in Holy Orders of the United Church of England and Ireland’.

33 The Guardian, 17 January 1862.

34 Shea and Whitla, Essays, p 688; Lincoln's Inn Papers, Privy Council Ecclesiastical and Admiralty Appeals, vol 69 (1863), pp 719–786 (hereafter ‘Wilson Lincoln's Inn’), p 770.

35 The Times, 7 August 1861.

36 Wilson PC, at 377.

37 Although formally the articles of charge made 19 separate ‘charges’, only 8 of the charges (articles 7–14 inclusive) dealt with specific parts of ‘Séances’.

38 Wilson Lincoln's Inn, p 783.

39 Ibid, p 758.

40 Wilson Arches, at 219.

41 Ibid.

42 Ibid, at 220.

43 Wilson Lincoln's Inn, pp 759 and 761.

44 Wilson PC, at 419.

45 Shea and Whitla, Essays, p 756. As to Tait's sympathies, see Booth, S, ‘Essays and Reviews: the controversy as seen in the correspondence and papers of Dr EB Pusey and Archbishop Archibald Tait’, (1969) 38(3) Historical Magazine of the Protestant Episcopal Church 270.

46 Wilson PC, at 423 and 433.

47 Ibid, at 424–425.

48 Ibid, at 431.

49 Ibid.

50 Ibid, at 432–433.

51 Found in the private papers of the appeal committee, quoted in Shea and Whitla, Essays, p 755. A very similar argument was made by Wilson at the hearing: Wilson, Speech, p 92.

52 Nash, T, The Life of Richard Lord Westbury, Formerly Lord Chancellor (London, 1888), vol 2, p 79.

53 Atlay, J, The Victorian Chancellors, vol 2 (London, 1908), p 264. Atlay attributes the lines to Charles (later Lord Justice) Bowen. They have also been attributed to Philip Rose, a leading solicitor: see Nash, Westbury, p 78.

54 Quoted in Liddon, H, Life of Edward Bouverie Pusey, vol 4 (London, 1894), p 49.

55 A Tait, ‘A pastoral letter to the clergy and laity of the Province of York’ (London, 1864), p 18.

56 Tait, A, The Word of God and the Ground of Faith: part II (London, 1864), vivii.

57 Ibid, vi; Tait, A, The Dangers and Safeguards of Modern Theology (London, 1861), p 238.

58 Shea and Whitla, Essays, p 665.

59 Ellis, I, Seven Against Christ: a study of ‘Essays and Reviews’ (Leiden, 1990), p 193.

60 Altholz, J, Anatomy of a Controversy: the debate over Essays and Reviews, 1860–1864 (Aldershot, 1994), p 124.

61 Fourth Report of the Royal Commission on Ritual (September 1870), viii.

62 Chronicle of Convocation, 9 February 1872, p 94, quoted in Davidson and Benham, Life of Tait, vol 2, p 142.

63 Originally a talk given on 6 March 1927 at Battersea Town Hall, published in Russell, B, Why I Am Not a Christian: and other essays on religion and related subjects (London, 1996), p 3.

64 Lincolns Inn Papers, Cases on Appeal to the Privy Council, Admiralty and Ecclesiastical, vol 205 (1876), pp 783–888 (hereafter Jenkins Lincoln's Inn), at pp 833 and 856.

65 Proby, W, Annals of the Low-Church Party in England, Down to the Death of Archbishop Tait (London, 1888), vol 2, p 313.

66 Jenkins, H, Selections from the Old and New Testaments (London, 1865).

67 For a detailed analysis of the omissions from Matthew's Gospel, see Jenkins Arches, at 479–480. According to the calculations of Dr Archibald James Stephens QC (leading counsel for the defendant in Jenkins v Cook), Selections omitted 215 chapters of the Old Testament entirely, and 25 chapters of the New Testament entirely: Jenkins Arches at 472. In fact, only eight chapters of the New Testament are entirely omitted (Matthew 1 and 25, Romans 7, and Revelation 6, 9, 12, 13 and 18). 218 chapters of the Old Testament are entirely omitted, including all of Esther and Ruth.

68 Jenkins Lincoln's Inn, p 833.

69 Ibid, p 792.

70 The title of the sermon is referred to in Jenkins' printed case for the Privy Council: ibid, p 784. Cook averred in his defence that the sermon was on eternal punishment: ibid, p 792. It is therefore difficult to accept the Privy Council's statement that ‘[w]hat was the subject or substance of this sermon … their Lordships have no means whatever of knowing’: Jenkins PC, at 97.

71 Cook, F, Righteous Judgment: six lectures on future punishment (London, 1878).

72 Jenkins Arches, at 478.

73 Jenkins PC, at 107.

74 See paragraph 4 of Cook's ‘Responsive plea’ and paragraph 4 of Jenkins' ‘Allegation in reply’: Jenkins Lincoln's Inn, pp 836 and 842.

75 Ibid, pp 854–856.

76 Ibid, p 856.

77 Ibid, p 855.

78 Ibid.

79 Jenkins Arches, at 479.

80 Ibid, at 480.

81 Ibid, at 481.

82 Ibid, at 482.

83 Ibid, at 487.

84 Jenkins Lincoln's Inn, pp 862–864.

85 Jenkins Arches, at 482.

86 Ibid, at 484.

87 Ibid, at 485.

88 Ibid, at 488.

89 Articles of charge, para 4: Jenkins Lincoln's Inn, p 834.

90 Letter of request: Jenkins Lincoln's Inn, p 827.

91 Archdeacon Randall (president), Canon Girdlestone, Canon Cooper and Canon Mather; Bishop David Anderson dissenting. See Jenkins, H, Jenkins v Cook (London, 1880), p 28.

92 Jenkins Arches, at 470–473.

93 Ibid, at 474–475.

94 Ibid, at 492.

95 Ibid, at 494.

96 The binding force of precedent was recognised by ecclesiastical judges in the nineteenth century: see Cox, NThe influence of the common law on the decline of the ecclesiastical courts of the Church of England’, (2001–2002) 3(1) Rutgers Journal of Law and Religion 1.

97 Jenkins Arches, at 495–498.

98 Ibid, at 498–499.

99 Quotations from the appeal case are from Jenkins PC, at 102–105, unless otherwise specified.

100 Ibid, at 101.

101 Jenkins Lincoln's Inn, p 855; Jenkins PC, at 98.

102 The Times, 26 May 1881 (obituary of Henry Jenkins).

103 Jenkins, Jenkins v Cook, pp 316–317.

104 The Times, 21 February 1876.

105 Thomson, J, ‘The Devil in the Church of England’, in Satires and Profanities (London, 1884), pp 1112.

106 Jenkins PC, at 85–86; the judge was Sir Fitzroy Kelly.

107 Thomson, ‘The Devil’, p 5.

108 Ibid, pp 5–6: ‘in the discharge of my spiritual office I am bound to speak upon those theological topics as to which the minds of Christian people are from any cause disquieted, and to point out what is the effect of the “Judgment” upon the position of the Church’.

109 McFarlane v Relate Avon Ltd [2010] EWCA Civ B1.

110 Ibid, at para 26.

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Ecclesiastical Law Journal
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