Introduction
Sermons preached by clerics have been largely neglected by scholars as a resource for the study of the history of English ecclesiastical law since the Reformation. Needless to say, scholarship has focused on the substantive and procedural ecclesiastical law found in the ecclesiastical legislation of Parliament, the canons passed by the convocations, the case law of the spiritual and temporal courts and the treatises of the civilian commentators. However, some historians of early modern England have studied the sermons delivered at the Inns of Court; but these studies have little to say about their preachers’ portrayal of the ecclesiastical law and its jurisprudence.Footnote 1 Nevertheless, as we shall demonstrate, in each century since the Reformation, clergy in their preaching commonly treated legal matters or else used legal materials, including ecclesiastical law. The eighteenth century is no exception – and Thomas Sherlock (1678–1761) is an excellent example, whose function included as Master of the Temple (1704–1753) preaching to the common lawyers of Inner and Middle Temple. What follows deals with his life and career, law in his sermons (including jurisprudential concepts common to both the temporal and the spiritual law), and his legal thought in wider context – all at a time when the law was an inescapable part of the religious landscape, the limits on toleration, the constraints on Roman Catholics, and the provision for occasional conformity.Footnote 2
The life and career of Sherlock
When Thomas Sherlock was translated to the see of London in 1748, the Archbishop – Thomas Herring – issued the new bishop with an ‘Option Deed’ securing, as his fee for the translation, the right of appointment to London’s most valuable living. Although such deeds were customary, Sherlock disputed it and from his research in the registers became convinced that it was an imposition. The dispute, which absorbed Government time and public interest, became so protracted and heated that at one stage Herring demurred further argument with one he described as, ‘a Veteran in Controversy’.Footnote 3
Sherlock was a profoundly gifted controversialist, with a mind honed in legal principle and practice, which he put at the service of the Church and State in a disputatious age. Born in 1678 and educated at Eton and St Catharine’s Hall, Cambridge, he succeeded his father, William, as Master of the Temple in 1704, an appointment he did not relinquish until 1753.Footnote 4 There, he was ‘much esteemed by the leaders of the profession’.Footnote 5 By virtue of his Mastership of St Catharine’s Hall, to which he was elected in 1714, he claimed a Prebend at Norwich, which he secured by lengthy litigation and despite also enjoying a Prebendal Stall at St Paul’s. In a long clerical career, he both defended the pluralities he enjoyed and sought to enforce residence (about which his own record might be thought mixed) without any sense of a seeming contradiction.
As an academic, Sherlock was a skilled practitioner of the Jus Academicum, notably seeking when he was Vice-Chancellor of Cambridge University to uphold the rights of the Court of the Vice-Chancellor when Dr Bentley of Trinity College challenged its proceedings in the King’s Bench. In this Sherlock ultimately failed, but not without underlining that he enjoyed the confidence of the Senate for his legal skill and tenacity. As Vice-Chancellor, Sherlock ‘appears to have shown strength of will, and an autocratic spirit which accompanied him through life’.Footnote 6 The history of the unhappy relationship of Sherlock and Bentley continued when the Bishop of Ely sought to reverse a restriction of his jurisdiction as Visitor of the University which was determined in the King’s Bench. The University was once more in dispute with Bentley. In 1732, the bishop decided to appeal to the House of Lords, and it was Sherlock’s intervention (he was in the Lords as Bishop of Bangor from 1728) which caused the Lords to reverse the earlier judgement.Footnote 7 His biographer lays this at the door of his ‘dogged legal mind’ and his ‘disinterested championship of the interests of the University’.Footnote 8
There was nothing curious in a bishop being politically convinced and active in the House of Lords. Sherlock’s public reputation was as a convinced Tory and as leader of the Tory clergy.Footnote 9 He navigated this without any tainting hint of wonted Tory Jacobitism. Indeed, Sherlock was a favourite of George II’s queen, Caroline, who enjoyed power not least because of the king’s frequent absences at Hanover.Footnote 10 Sherlock was perceived as the natural enemy of the leading Whig bishop of London, Edmund Gibson, the most notable canonist of the age and exercising power (not least over all senior appointments) as the ‘Church Minister’ under first minister Robert Walpole.Footnote 11
It is often suggested that the Parliament of 1733–1737 was the most anti-clerical since that of the 1530s. Although enemies – and Gibson sought repeatedly to prevent Sherlock succeeding him in London – in fact their high church principles and causes were consonant; they were able defenders of orthodoxy in the face of Deism, staunch supporters of the Hanoverian Succession, resisters of the encroachment on the ecclesiastical jurisdiction, fierce opponents of the moral laxity of the age (in Sherlock’s case especially the trade in gin), and parliamentary allies on such matters as the Quakers’ Tithe Bill. Ironically, Sherlock’s position at Court (so irksome to Gibson) was ended because of the Quaker bill: Queen Caroline scolding him for ‘being so blind and silly as to be running a race of popularity with the Bishop of London’ and advising him to retire to his diocese!Footnote 12 After the Queen’s death the following year (1737), Sherlock never appeared at Court again. However, at the time of the 1745 Rebellion, and while still Bishop of Salisbury (since 1734), Sherlock proved his Hanoverian loyalty to the Government in a preached and published sermon.Footnote 13
Sherlock was much absorbed in the religious settlement of the day, which allowed toleration to dissenters (but not Roman Catholics) and arguably some protection to those within and beyond the Established Church who strayed into heterodoxy. As early as 1717, the Bangorian Controversy aroused much feeling when the then Bishop of Bangor, Hoadley, preaching before the King, seemed to suggest that any authority set up to which consciences must submit was to trespass on the authority of Christ.Footnote 14 This was seen to deny authority to the Established Church. Sherlock (then Dean of Chichester) chaired a committee of the lower house of Convocation to discuss the sermon. However, the arguments aired in a warfare of pamphlets, narrowed to the authority and privilege contained in the Corporation and Test Acts, by which support of secular officials for the Established Church was publicly expressed as a condition of appointment (and was therefore odious to dissenters). Sherlock maintained that it was correct to provide that all power is exercised by those judged to be ‘well effected’,Footnote 15 and that the experience of the Commonwealth proved the hazards of this when set aside. Hence, the receiving of the Sacrament was an ‘innocent’ proof that a man was in communion with the Church of England. Sherlock’s ‘Vindication’ was the ‘standard apologia of these disenabling statutes’.Footnote 16 Dissenters should be tolerated but not encouraged.
In 1752, London was shaken by two considerable earthquakes. Public dismay led quickly to moral and theological discourse, the religious interpretation of which was led by Sherlock. His letter, condemning the ‘wickedness and corruption that abound’,Footnote 17 sold more than 70,000 copies (much to the amused horror of Horace Walpole). Sherlock’s opponents attacked the refusal of the clergy to ascribe physical effects to nature and thereby illuminated one of the religious fault lines of the age.
If dissent and toleration appeared settled constitutional provisions, they were really part of undermining the dominance of the Established Church, together with a movement of speculation in theology which Sherlock and others sought to engage and contest. Specific positive revelation was under an assault from the religion of nature in the name of reason; the miraculous and supernatural fared especially badly and active morality was the touchstone of veracity and usefulness. Although not aimed at these ‘Deists’ by intention, Sherlock’s published ‘Discourses’, amounting to the Sermons that he preached as Master of the Temple, are influenced by the deist drift. ‘He wrote, above all as a lawyer to whom the New Testament was the Scripta Lex.’Footnote 18 He asserted that in history ‘natural’ religion cannot be shown to have shaped society or morality, but rather that it is where ‘the benefits of Christian dispensation [exist] that the light of reason shines in its fullest’.Footnote 19 By the time the Discourses appeared in print, Sherlock, although still bishop of London was advancing in infirmity and paralysis, but he retained a sense that the times and the issues were urgent for episcopal direction and care.
The sermons of Sherlock and their treatment of law
As Master of the Temple, Sherlock preached many sermons which were printed in his life-time in four volumes entitled Several Discourses Preached at the Temple Church – they are inscribed ‘To the Worshipful Masters of the Bench of the two Honourable Societies of the Temple’, Inner and Middle; the sermons went into several editions, and those used for this study are from the 1750s,Footnote 20 although there were also later editions.Footnote 21 The sermons expound a particular scriptural text, engage in argument and counter-argument, and, unsurprisingly given his congregation, deploy juridical imagery extensively: for example, they speak of religion as a form of rule,Footnote 22 pleading at the bar of divine justice,Footnote 23 the reasonable or equitable construction of a rule,Footnote 24 the reasoning of Christ,Footnote 25 and evidence.Footnote 26 Above all, they contain a wealth of material on laws: the law of God and the law of the Gospel; the law of reason and the law of nature; conscience and access to the divine law; the laws of justice and equity; and the law of humans – its nature, scope, promulgation, application, and obedience due to it.
The law of God and the law of the Gospel
The ‘Law of God’ plays a central role in the legal thought of Sherlock: ‘The Will of God … has, and ought to have, the Authority of a Law with us’;Footnote 27 and: ‘The very End of the Law is, to be the Rule of our Actions’.Footnote 28 This law of God is ‘the first supreme Law, from which all others proceed, as distinct Branches, and by which they must all be governed’.Footnote 29 Its ‘first and great commandment’ is ‘the love of God’; and its second is ‘the love of our neighbour’.Footnote 30 Moreover, the divine law requires what is reasonable: ‘[A person] is not obliged to love another better than himself; and therefore it is unreasonable to expect that he should straighten and pinch himself to enlarge’ upon it.Footnote 31 The law of God is a revealed law.Footnote 32
Not only is the law of God found in the Ten Commandments of the Old Testament. It is also found in the ‘Law of the Gospel’ in the New Testament: ‘the Gospel is a Law proceeding from the best and highest Authority, given by God to his Creatures; and we are bound at our Peril to take notice of it: If we will not walk in the Light of God’s Law, when it shines so brightly before our Eyes, we shall be condemned for choosing Darkness rather than Light’.Footnote 33 As such: ‘the Gospel having all the Perfection requisite in a Law [is] designed for the Government and Instruction of rational Creatures’;Footnote 34 it offers a ‘Rule of Life’ and ‘the Sense and the Reason of the Law, are open and plain, and such as we cannot but see, and, when we see, consent to’.Footnote 35 One example is the ‘general Law of loving thy Neighbour’, which, specified ‘in the Language of all particular Laws and Precepts is easily understood’.Footnote 36 Also: ‘if the Gospel of Christ be indeed, as indeed it is, the Will of God, it will not be so easily parted with. It is the Law of our great Master, and obey it we must. The Advice of a Friend we may use or refuse, as we think fit; but the Laws of our Superiors must be obeyed’.Footnote 37
The law of reason and the law of nature
For Sherlock, ‘the Laws of Reason and Nature … are the Laws of God’,Footnote 38 and a type of ‘moral law’, by which humans are ‘rational agents’ and ‘moral beings’ and as such enabled by God to distinguish between good and evil in ‘the moral world’.Footnote 39 First, the ‘Law of Reason’ is ‘a superior law’.Footnote 40 However, it is obscured by sin: ‘Reason approves what is just and holy, consents to, and delights in the Law of God; but Sin captivates and enthrals it, and makes the Man the Slave of Sin’.Footnote 41 Nevertheless: ‘Grace … is given to restore us to the Obedience of Reason’ and ‘the very best Evidence we can have that the Grace of God is in us, is this, that we live up to the pure and sincere Dictates of Reason’.Footnote 42 Moreover: ‘The Laws of [the] Gospel are declaratory of the original Law of Reason and Nature’; but these are not ‘a more equitable Rule of Justice’ than the law of the Gospel which itself represents ‘Christian law’.Footnote 43
Second, that said, Sherlock argues that reason has its limits: ‘the Authority and Word of God is the only sure foundation of religion, and the only reasonable ground for us to build our hopes on’. As a result, for instance, ‘mere Reason cannot be the perfect Rule of our Obedience’,Footnote 44 for if this were the case reason would displace the revealed law of God, which it does not: ‘to argue that God gave Men Reason to be the Rule of their Obedience, is supposing that his original Intention is, that Men should obey Reason; to argue at the same time that those who live in Disobedience to this Law, are in the State which God intended them to be in, is to suppose that God intended [His] Law should be obeyed, and not obeyed, at the same time’.Footnote 45 That is, if reason is in conflict with the law of God, the latter prevails.
Third, because human reason has its limits, the Holy Spirit is given to assist it: ‘the Power of the Spirit is on Reason’s Side, and works together with it; so that to be under this Power is a State of Freedom and Liberty: And therefore it is justly said, that the Law of the Spirit of Life has made us free’ and has ‘stilled the horrid Contest that was in us between Reason and Sin’.Footnote 46 Sherlock has a great deal to say about ‘the Mazes and Intricacies of human Reason’;Footnote 47 after all, he asks the people: ‘how many, or how few, will act by the Laws of Reason, and qualify themselves for the Mercy of God, Natural Reason and Religion can never shew’.Footnote 48
The twin of the law of reason is the law of nature. First, the law of nature (like reason) is ‘a superior Law’.Footnote 49 Second: ‘common Consent is the Voice and Law of Nature; for what all agree in must needs derive itself from something that is common to all; and what is so, but the Sense and Instinct of Nature’.Footnote 50 Third, however, the law of nature has its limits: ‘if Men have everywhere sinned, and come short of the Glory of God, the Law of Nature cannot help them to those Blessings, which by the Law of Nature are forfeited; and there is manifestly a Necessity to have recourse to other Means to obtain Salvation’, namely faith.Footnote 51 Yet: ‘As we are Men, we are the Servants of God; and therefore to serve him is the Law of our Nature, which is of the highest Obligation: As we are poor, we must serve Men, which is the Law of our Condition, which can never take place of the Law of Nature; and therefore no Necessity can dispense with the Service of God, or justify us in the Breach or Contempt of his Laws’.Footnote 52
Conscience and access to the law of God
Divine revelation, and human reason and nature, also meet in the human conscience. First: ‘The Power of Conscience is seen in all Men; it is common to all Countries, to all Religions; Learned and Unlearned, Rich and Poor. It is an essential Character of a rational Mind, and therefore to Man, who is a rational Creature, it is natural’.Footnote 53 Second, ‘the Sense of being accountable for their Actions’,Footnote 54 and of ‘their Obligation to obey the Laws of Reason and Nature … is evident from the Force of natural Conscience’.Footnote 55 Third, conscience is proof that the law of God is written in human hearts: ‘If Conscience testifies the same Thing to be good and just which the Law does, then Conscience proves the Matter of the Law to be written in the Heart’, human ‘Conscience and the Law both allowing and forbidding the same Thing’.Footnote 56
However, like reason and nature, conscience has its limits: ‘Reason will not always strive with a Man; but if often subdued by corrupt Affections, it will at last give over the Contest’ and ‘sensual Lusts do war against the Soul, by extinguishing the Force of natural Conscience, and not leaving a Man Reason and Religion enough to repent of his Iniquities’.Footnote 57 Then: ‘when Reason and Conscience are destroyed … Religion must soon follow’.Footnote 58 But all is not lost: ‘If the Power of Conscience be natural to a rational Mind’, it is God who ‘admonishes you when Conscience flies in your Face’ – that is, ‘He who placed the Power of Conscience in every rational Mind, to act there as his Deputy, in restraining, rebuking, and correcting every Iniquity’; and the human conscience will reach ‘to every particular Man’s Case, who has not extinguished the Powers of Conscience, and the natural Sense of Honour and Shame’.Footnote 59
The laws of justice and equity
Sherlock accepts as axiomatic the proposition that: ‘It is the Essence of Morality to bound the Desires within the Limits of Reason, Justice, and Equity’.Footnote 60 And to the last two we now turn.
First, whilst ‘Justice [is] conversant in Rewards and Punishments’ and ‘the Essence of Justice [is] to distribute both where they are due’, humans have by nature a sense of justice but they cannot fully understand divine justice: ‘the first and natural State of Mankind was a State of Innocence’ characterised by ‘natural Notions of Justice and Equity, and the necessary Difference between Good and Evil’. However, although ‘God can do nothing but what is just’, ‘our finite Minds cannot comprehend the Reasons and Limits of the divine Justice’;Footnote 61 and, for instance, ‘the Justice and Equity of God’ in redeeming sinners is ‘not discoverable by us’.Footnote 62
Second, Sherlock on ‘the Laws of Justice and Equity’ and ‘the Rules of Justice and Equity’.Footnote 63 He equates ‘reason’ with ‘justice’ and ‘equity’ with ‘mercy’; he says: ‘I will suppose … (and it is the very Truth) that Justice and Mercy both meet in the Rules of Reason and Equity’. He then offers a practical example – namely, of a person ‘seriously convinced of the Iniquity of Sin, and purposing to forsake it’. He argues: ‘The Case supposes him to have sinned so as to deserve Punishment by all the Rules of Reason and Equity: The Question is, Whether a sincere Alteration of Mind can give him Security of a Pardon. I suppose it agreed by all who admit a future Judgment … that it will be deemed reasonable for God to act upon such Terms as Reason itself, the Interpreter of God’s Will in this Case, proposes to us’, and so forgive.Footnote 64
Third, then, it is the particularity of circumstances which determine what is just or equitable: ‘In every Government particular Cases have their particular Reasons: Those who know the Reasons and Circumstances of each Case, may know whether the general Rules of Justice and Equity are properly applied in the Judgment and Determination of the Case. Others cannot possibly judge, though perhaps in the general Rules of Justice they may be well skilled’.Footnote 65 Mercy perfects justice: ‘since Charity is the Perfection of the Law, to forsake Sin, and to live by the Rules of Charity, is the surest, the most effectual Way to obtain Pardon’.Footnote 66
The laws of humans
Sherlock deals with five aspects of human law: its nature, scope, promulgation, and application, and obedience to it. Throughout he deploys the laws of God, reason, nature, justice and equity and sometimes refers to English law, although he also admires ‘the civil laws of Rome’ which he claims have a place ‘in almost all kingdoms’; but he does not elaborate.Footnote 67
First, the nature of human law: ‘all Laws … are intended for Directions and Rules’;Footnote 68 and: ‘All Laws are founded upon one and the same Authority of God’,Footnote 69 for example, the law of theft: as property is established ‘by the positive Law of God’, and it is acquired by ‘Purchase or Exchange’ or ‘Work and Labour’, so ‘no Man can acquire the Possession of any thing which is at present another’s, without the Consent of the present Proprietor fairly obtained’.Footnote 70 And for Sherlock, written law is best; after he explains how writing was used to deliver ‘the Doctrines of Christ’, Sherlock states: ‘this Way has had the Consent and Approbation of all civilized Nations; from whence it is that scripta Lex is used in the best Writers to signify an instituted Law, as distinguished from the Law of Nature arising … from Instinct or Reason’.Footnote 71
Moreover, as ‘our earthly Princes’, ‘the Rulers of the World may be said to be the Ordinance of God and to derive their Power and Authority’ to make law from God,Footnote 72 so too ‘the Church of England has … Authority to appoint Rules of Order and Discipline for [its] Members’, rules which are ‘settled upon prudential Considerations of the Circumstances of England’.Footnote 73 And the Church of England itself is essential to civil government, for it ‘brings Maintenance to the Poor, Instruction to the Ignorant, and opens to the Miserable a Way to Happiness; which provides for the Order of Civil Government, and the Peace of Christ’s Church, on Earth’.Footnote 74
Second, the scope of law. This depends on the intent of the lawgiver: ‘it is evident, that no Law, either human or divine, extends farther than the Lawgiver intends’.Footnote 75 However, as a matter of principle (although his specific focus is divine law), laws cannot and should not cover all cases: ‘it is impracticable to give Rules and Directions for all possible Cases, and to adjust the general Laws of Virtue and Obedience to the great Variety of Circumstances incident to human Life’. Further, if laws were ‘to take in all particular Cases’, they would ‘soon grow too voluminous to be serviceable; there being no Life long enough, no Industry sufficient for such a Study, and no Memory strong enough to retain such a Body of Institutes’. In addition, too many laws would obviate the need to exercise human reason: ‘Reason and Judgment would be of no further Use … were Men in all Cases limited by particular Clauses and Provisions’. Finally, too many laws afford too many opportunities to evade the law: ‘likewise the End proposed to be served by such numerous and particular Laws would not be obtained; but Men would still find Room to cavil at their Duty, and be able to furnish Pretences to evade it’.Footnote 76
Sherlock also relates the scope of law to its clarity: a ‘Rule of Action must be plain and intelligible, or else it is no Rule; for we can neither obey nor disobey a Law that we cannot understand’, for ‘we cannot practise a Law, without understanding it’.Footnote 77 However, a law which is difficult to understand is nevertheless valid: ‘no Body of Laws, human or divine, becomes void and of none Effect, because some Parts are hard to be understood, or not to be understood’; as a result: ‘if Men dispute upon such Places, and divide into a thousand Opinions about them, such Divisions do still less affect the Law, which owes not its Authority to the Agreement or Disagreement of Interpreters’ – yet laws should not be ‘too obscure’ for otherwise ‘we [would] continue ignorant of the Meaning of the Lawgiver’; and moreover, ‘Men may blunder, and make dark Laws, and so miss the Scope they aimed at’.Footnote 78
Sherlock then distinguishes between mistaken and deliberate misunderstandings of law: ‘In human Laws, the Main of the Subject’s Duty is plain; and if he mistakes any dark Passages, yet so as to keep strictly to his known Duty, the Consequence perhaps may be tolerable, and he excusable: But if a Man from any dark Statute should infer a Right to rob and murder his Neighbour, and act accordingly (which Acts of Violence are plainly forbidden in the Law) he ought to suffer, not for misunderstanding the obscure Law, but for transgressing the plain’.Footnote 79
In turn, the authority of ‘human laws’ depends ‘not upon their being distinctly understood by all Men; for the Man, who has no Ability to expound a Statute, may yet be certain of its Authority, if he will have recourse to the proper Records’. Indeed: ‘there are many Statutes of this Realm, the Authority of which no Man doubts of, though, at the same Time, those who are best able to judge are not agreed in the Meaning and Exposition of them’. Sherlock then asks his listeners: ‘what would you think of a Man, who should affirm that we have no Statute-Book in this Kingdom, or none of any Authority and give you this Reason for it, because that which we call our Statute-Book has many Difficulties and Obscurities in it?’.Footnote 80
Third, promulgation. Sherlock begins with divine law: ‘If God intends a Law for the Use of the World, he is obliged, if I may use the Expression, to publish the Law to the World’. He then applies this to human law: ‘it must be allowed, that the Promulgation of the Law is the proper Care and Concern of the Lawgiver: For the Law must come from the Governor to the Governed; and the Subject, till he knows the Law, that is, till it is promulged and sufficiently declared to him, can have no Concern in it’.Footnote 81 This requirement of promulgation is ‘universally true of all Laws whatever, both human and divine: And the Reason of it is plain, because otherwise Men would be bound to an Impossibility, to obey a Law, before they knew’ that law.Footnote 82 Therefore, promulgation of the law and the authority of the lawgiver represent ‘the Essentials necessary to constitute a Law, either human or divine’. As a result, because ‘Promulgation is so far of the Essence of the Law’, then it necessarily follows that ‘no Man in Reason or Equity owes any Obligation to a Law till it is made known to him; that the Obligations therefore of a Law are limited by the Terms of the Promulgation’.Footnote 83
As to mode of promulgation: ‘a Law is sufficiently promulged, when [this] is done according to Custom in some public and solemn Manner’ or ‘public Declaration’.Footnote 84 However, this mode of promulgating human law is weaker than that by which divine law is promulgated, namely by God writing it in human hearts; indeed, ‘human Laws’, how ‘publicly and solemnly soever they are declared at first, are often worn out by Length of Time, or grow dark and obscure, and stand in Need of an authoritative Exposition to silence the Contentions arising’ in them.Footnote 85
Fourth, obedience. Obeying law is not a matter of choice: ‘No Man is at Liberty to choose whether he will be governed by the Laws of the Realm; and it would be to little Purpose to plead to an Indictment, that you never intended to be governed by the Law, but choose to act by other Rules; and therefore desire that the Law may have no Place in the Judgment, but that you may be tried by those Rules by which you choose to live’.Footnote 86 Obedience itself is achieved through punishments and rewards: ‘Christian Law, indeed, like all other wise Laws, is fortified with Rewards and Punishments … as Motives of Obedience’;Footnote 87 and any punishment ‘must exceed the Advantage the Offender will reap by transgressing the Law; or else, as much as the Gain to be reaped by breaking the Law exceeds the Punishment annexed to’ it.Footnote 88
Fifth, the application of law. Sherlock advances several principles here. One is equality before the law: ‘Among Men all are judged by the same Rule, one Law comprehends all, and is of the same Interpretation and Extent in all Cases’ – that is, ‘all who are esteemed to have Reason enough to govern themselves, are concluded under one Law’, although ‘in Truth and Equity … no two Cases are perhaps exactly alike, or equally subject to the same Rule’.Footnote 89 A related ‘Maxim’ is that ‘the Rule of Life and the Rule of Judgment ought to be the same’ – as such, it is not ‘equitable, that Men should live by one Rule, and be judged by another’.Footnote 90
The next principle is that ignorance of the law will not excuse its application in a particular case; he writes: ‘In human Judicatures … it is in everybody’s Power to pretend Ignorance of the Law, or some other Inability’; if pretended ignorance were accepted, this would ‘open a Door to all kind of Licentiousness, and take off the Fear of Punishment’; moreover: ‘the wisest and ablest Judges cannot discern, some few Cases perhaps excepted, between real and affected Ignorance’; therefore, ‘the Law puts all, except those who are manifestly deficient in Reason, upon the same Level, and supposes every Man to know the Law of his Country’.Footnote 91
Sherlock also tackles ‘the Distinction between good and bad Laws’, both of which may be ‘derived from the same Authority [or lawgiver]; which shews, that Authority, though it may make a valid Law, yet it cannot make a good one, unless acting upon the Reason of Justice’. His approach to this issue is found in a discussion of the maxim Summum ius, summa injuria (from Roman law) – i.e. granting a party the maximum extent of their rights may do an injustice to the other party. He states: ‘Summum jus regards the written Law, summa injuria regards the original Reason of all Law’. He continues: ‘in many Cases … the Letter of the Law contradicts the Reason of the Law’ – this is because ‘Laws and Maxims of Law have no Regard to the Circumstances of particular Cases’ and ‘how liable we are to mistake’ if ‘we form our Judgments by applying general Rules of Law or Equity to particular Cases’.Footnote 92
The choice for Sherlock is either to allow ‘the general Maxim [to] prevail contrary to the very Reason upon which the Maxim itself is founded’ or to allow ‘the Reasons of Justice and Equity [to] prevail to supersede a general Law, which is not applicable to the present Case’ – that is, it is a choice between, on the one hand, the ‘Rule of Law’ or ‘Rule of Justice’ and, on the other hand, the ‘Reason of Law’ or ‘Reason of Justice’. He contrasts at this point human justice and divine justice: ‘our Rules do not always extend to the Reason of particular Cases; but the Judgments of God do always regard the Reasons and Circumstances of every Case’.Footnote 93
For Sherlock, the ‘Reason of Law or Justice’ (mercy) should prevail over the ‘Rule of Law or Justice’ ‘general and particular Laws … often fall very heavy upon particular Persons; whence it is that we complain of the Rigor and Hardness of the Law’. Were ‘Men perfect both in their Reason and in their Wills, so that they could neither judge amiss nor act amiss, they would then do that which is exactly right and reasonable in every Case, and there would be no room to correct the Rigor of Justice by the Interposition of Mercy; for there is no Rigor in that which is perfectly right and reasonable’. But the very necessity for ‘Pleas for Mercy’ arises ‘from the Circumstances of the Person, or the Action’ and these ‘show that the Law is too hard in his Case, and that he ought in Reason to be eased against the Extremity of the Law’ – as such, ‘the Reason of Law and Justice’ should be ‘adapted to the very Merits of the Case’.Footnote 94
Sherlock recognises that this choice arises because of the limits of law: ‘all Cases are judged by Laws made long before the Cases happened, and which cannot consider the Alleviations or Aggravations of particular Facts, it comes to pass sometimes, that the Law is a very inadequate Rule of Justice in Cases that fall under it’. However, no-one should suffer ‘the Rule of Justice against all Reason of Justice’ but ‘ought to have the Benefit of Mercy, and to be relieved against the Rigor of the Law’.Footnote 95 For Sherlock the issue is of particular importance when ‘many Innocents suffer in the Punishment of one injurious Person’; for example: ‘The Law does not consider who shall maintain the Children, when it seizes the Father’s Estate …; nor does Justice relent for fear she should make a miserable Widow, and many wretched Orphans, by the severe Blow which cuts off the guilty Husband and Father’.Footnote 96
The legal thought of Sherlock in context
Sherlock is very aware of the religious, political, and legal contexts of the time in which he preaches. For example, in one sermon at the Temple in 1715 (the year of a Jacobite uprising in Scotland but which he does not mention), he shows himself no admirer of the Stuart James II (1685–1689), a ‘papist’, in whose time: ‘this church and nation were brought to the brink of ruin: and though he had been saved from a bill of exclusion by the interests and loyalty of the church, yet no sooner was he on the throne, but he imprisoned her bishops, dispensed with her laws, and broke down all the fences that were raised for her security; in which confusion she had utterly perished, had not the providence of God rescued her by the means of a protestant prince [King William III], happily allied to the crown by marriage and by birth’.Footnote 97
In any event, with respect to the intellectual context of the legal thought of Sherlock, there are clearly similarities and differences between Sherlock and other thinkers both before and during his life. What follows looks briefly at: other law-themed sermons; understandings of the cosmic legal order; and human law – nature, scope, promulgation, application and effect.
Sherlock is not alone in preaching on law or in using legal materials in sermons. Many clerics did so in their sermons in each century after the Reformation. There are three examples. First, in the sixteenth century, in a sermon of 1588, Richard Bancroft (later Archbishop of Canterbury (1604–1610)) sought to persuade puritans to accept the Book of Common Prayer using maxims of the civil and the canon law: ‘I have read, that if any thing, fact, writing, law or whatsoever may in reasonable construction admit two interpretations, the best and the mildest is ever to be received. And the civil lawyers have these rules: Semper in dubiis benigniora sunt praeferenda: Always in doubtful matters the more benign are to be preferred. Non oportet jus calumniari, aut verba ejus captare: It is not meet to cavil at laws, or to snatch at their words’; and: ‘Non sunt rejiciendae leges quae interpretatione aliqua possunt convenire: Laws must not be rejected, which by any reasonable interpretation may be reconciled’.Footnote 98 As we have seen, Sherlock himself commonly invoked ‘Maxims’ or ‘Principles’ (of law and of religion) but his discussion of the maxim Summum ius, summa injuria from Roman law is a rarity.Footnote 99
Second, the cosmic legal order. Needless to say, Sherlock was not the first to see human law within the context of a wider constellation of higher laws. In this he is very reminiscent of a former Master of the Temple, Richard Hooker (d. 1600); Hooker is of course celebrated in part for his exposition of the categories of higher law.Footnote 100 The same may be said of many after Hooker and during Sherlock’s own lifetime – civilians, common lawyers, and clerical jurists – who deployed extensively ideas of divine law, natural law, the law of reason, justice and equity, and conscience, in their commentaries on ecclesiastical law.Footnote 101 Needless to say, the secular judiciary of the eighteenth century too were fully aware of the debate between revealed and natural religion; and in one case from 1748, concerning religious toleration in London, Lord Mansfield (1705–1793) invoked both: ‘It cannot be shown from the principles of Natural or Revealed Religion that independent of positive law, temporal punishments ought to be inflicted for mere opinions with respect to particular modes of worship’.Footnote 102
These categories of higher law, and their relation to inferior human law, were also the object of preaching. From the seventeenth century, we have examples of sermons preached on the occasion of Readings at the Inns of Court (i.e. lectures on the text of statutes), such as those preached by Adam Littleton (1627–1694),Footnote 103 who also published works by John Selden (d. 1654), including on ecclestiastical law; and he translated one on legal history into English.Footnote 104
For instance, in a sermon delivered in 1675 (three years before the birth of Sherlock) on the occasion of the Reading at Middle Temple given by Sir Francis Winnington (1634–1700), Littleton foreshadows in a single discourse many of the themes scattered across so many of Sherlock’s discourses. Littleton’s sermon is entitled ‘Law established by Gospel’, and is an exposition on a scriptural text from Matthew.Footnote 105 Its principal theme is that, in the Sermon on the Mount, Jesus provides ‘a System of Christian Ethics, the Summary and Abstract of all Practical Divinity’,Footnote 106 which Littleton then explores in the context of various legal categories.
At the outset, he comments on the nature of law; in keeping with countless earlier thinkers, he says: ‘The Law in general is a binding Rule; Lex a ligando is the common saying; but I think rather, Lex a legendo, the publishing or promulgation of Laws being that, which makes them obligatory’.Footnote 107 As we have seen, Sherlock too sees promulgation as a constitutive essential for the validity of law. Littleton then makes a fundamental distinction: ‘Law is either Natural or Positive. The Law of Nature is the rule and precept of right reason. Positive Laws are consequences drawn from that, and suited to the necessities and conveniences of human society’.Footnote 108 This may be contrasted with Sherlock who offers a wider complex of higher laws.
Like Sherlock, for Littleton natural law is moral law: ‘Natural Law is the same as what we call Moral Law, and implanted into the very Nature and Constitution of Man; that which the Apostle styles the Law written in the heart, which even by secret instincts teaches us Piety to God and Justice to our Fellow-men; of which the Decalogue was a compendium draught; the pravity of sinful nature and the vicious customs of the World having made it necessary for the supreme Lawgiver to deliver this Law audibly by word of mouth for the greater cause of the present Hearers, and to set it down visibly in Writing, that no one of their Generation to come might pretend Ignorance: and this is what we are told, that the Law was given because of Transgressions’.Footnote 109 Unlike Sherlock, however, Littleton does not address the law of reason.
Littleton then deals with the human positive law; in addition to that of God – who is the ‘Lord and Judge of Conscience’ – he says: ‘the other sort of Positive Laws, as regarding mainly the outward man, subjects us also to the Magistrate, who makes Judgment of mens intentions by their Actions. The Mind and Conscience of man being otherwise undiscoverable to man, and by Consequence exempt from the Power as well as the Cognizance of all human Authority, though the obligation of obedience be founded in Conscience too even to human laws’.Footnote 110
This sets the scene for Littleton to tackle the relationship between positive human law and the higher laws. Like so many before and after him,Footnote 111 including Sherlock, Littleton says: ‘as Christ has highly improved and ratified the Laws of Nature, so his Religion in its Principles do fairly comport with the positive Constitutions and Municipal Laws of particular Countries and Nations’; moreover, Christ ‘gives no Authority or Encouragement to anyone, upon pretence of Evangelical freedom, to shake off the yoke of obedience [to human laws], which is laid upon them by just Powers set over them’.Footnote 112 This of course opens the door to a fundamental qualification to the duty to obey human laws: ‘how ill will it become any [of Christ’s] Disciples [including today], out of wilfulness or pretended weakness, to disturb the Peace of a Church and State, whereof they are members, by refusing Obedience to the lawful Commands of lawful Superiors? And such are all commands, where God himself has not in his Word expressly forbidden or directly bid the contrary’; his punchline: ‘for it is in that case only, where we are to obey God rather than men, namely when God has commanded some thing, and the Magistrate commands another’.Footnote 113 Littleton here is a moralist not a positivist.
Littleton ends his sermon by praying with his congregation of lawyers, that, in England, ‘we may, as He came not to destroy but to fulfil the Law, so perform all Offices of Justice and Love to one another, and so agree in the Service and Worship of God, that Religion and Laws may still flourish in our Land, to the Honour of the Government, the Welfare of the People, and the Glory of the Great God, to whom be glory now and for ever. Amen’.Footnote 114 Once again, this tripartite view of the purposes of law (including church law) are standard for his day.Footnote 115
Finally, there are the sermons of William Beveridge (d. 1708) delivered in the decades just before Sherlock became Master of the Temple. I give three short examples. Like Sherlock, Beveridge recognises the authority of the Church to govern itself – Christ left ‘the power of governing the Church’ to his apostles and their successors who are ‘empowered both to declare what are those commands of Christ which men ought to observe, and also to use all means to prevail upon men to observe them’ by ‘correcting and punishing those who violate, rewarding and encouraging those who keep them’; Beveridge then cites specific early Canons on the matter of visitation in governance. Beveridge also cites the Canons Ecclesiastical 1603, such as: the rule that ‘none be ordained, either deacon or priest, who has not first some certain place where he may exercise his function [citing Canon 33], nor except he subscribe to the three articles mentioned in Can[on] 36’. Beveridge also has a lengthy sermon of the administration of Church courts by lay people including those who are ‘learned in the law’.Footnote 116 By way of contrast, there is no obvious use by Sherlock in his sermons of specific rules of the substantive or procedural ecclesiastical law of England, compared with its jurisprudence.
Conclusion
Thomas Sherlock thought ordinarily in legal categories. He sat comfortably on the bishops’ bench as both a minister of the Gospel and the erstwhile Master of the Temple. A Tory, he was guided more by conservation than reform and although his interpretation of the London earthquakes might now strike us as ridiculous (as also his hatred of gin and its social effects) yet this was popular with his clergy and his people. Yet his thought as outlined in the Discourses seems to have avoided the worst pitfalls of orthodox predestination theology because he spoke of mercy and justice with ease. He does not seem to have governed as a legalist nor was he accused of such (unlike Gibson), despite believing that the law of God was both natural and revealed and that human law shared something of this sacred character.
Second, using Sherlock as a case study, it is clear that sermons represent a potentially fruitful resource for the study of the history of English law since the Reformation. This would certainly fill an obvious gap in current scholarship. Sherlock is a particularly good example because those to whom he preached were primarily lawyers at the Temple Church. His focus is almost always on scripture and its message. However, to enable his listeners to engage with the scriptural and theological matters on which he expounds, to enable them to understand these more fully, and to relate them to their own professional lives as lawyers, Sherlock uses ideas from a breath-taking range of analogous legal categories – from the higher laws of God and the Gospel, reason and nature, justice and equity, and conscience, to the lesser laws of humans – their nature, scope, promulgation, application, and enforcement. But he says very little, so it would seem, about the substantive ecclesiastical law: his focus is jurisprudence.
Third, Sherlock is not the only cleric after the Reformation to preach on law. Three brief examples have been offered here: Bancroft, Littleton, and Beveridge. However, these three hardly exhaust the field for study. It is submitted, therefore, that a far wider, more ambitious, project would yield fruitful results for the history of ecclesiastical law and jurisprudence – including a comparative approach to law-themed sermons across the centuries after the Reformation with a view to explore, for instance, continuity and change in terms of topics treated, juridical sources used by the preachers, and the complexion of their congregations.
When Inner and Middle Temple hold their amity dinner, the ‘Sherlock Cup’ is proudly displayed: this lavish silver-gilt cup was commissioned by the two Inns in 1725 as a gift to Sherlock after he arranged to have his sermons printed at the request of their Benchers who presented it to him in appreciation.Footnote 117 If there were a cup to be awarded to an Anglican cleric-jurist for the treatment of law in sermons, Sherlock would be a good candidate to receive it.
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