In 1468, Robert Stillington, Bishop of Wales in England, indicated that he was both a secular judge and a "judge of conscience", and a year later in his speech said: "In office of Lord Chancellor, no mistake or form should be prejudiced, but a matter of conscience."
In other cases, conscience was described more negatively, for example: "It is said that defendant acted against conscience." In these cases, it is worth noting that conscience is not used in an individual sense, but rather in more abstract terms, as a general set of moral and legal standards by which what is right, fair, and just is measured.
This is a concept that higher clergy have a special right to apply so that together they "know God" and know God's will as closely as possible. This emphasizes modern belief that judgments based on conscience are not a matter of subjective opinion, but of objective truth gained through applied knowledge and training.
The author believes that bishops in general and judges in particular are a highly educated elite, so they fully meet this requirement. The ministers of fifteenth century were learned and talented. Of nineteen appointed Lord Chancellor between 1399 and 1504, only three did not have degrees in theology, civil law or canon law from Oxford or Cambridge, and of these three two were laymen. Historians have been quick to suggest that education of fifteenth-century prime ministers was a key factor in establishing basic principles of justice as a separate legal system that emerged in early modern era.
However, one could equally argue in opposite direction, arguing that expansion of powers of judges in field of discretionary justice places special emphasis on their education and familiarity with intellectual tradition of natural law, so that king and proper functioning of chancellor became expedient by appointing head of his man with highest intellectual abilities.
The use of term "conscience" in context of Chancellor emphasizes relationship between religious and secular worlds, as well as role of wise and learned minister as a bridge between them, identifying God in secular civil law. context, what is purpose.
The emergence of conscience thus describes a moral code for exercising discretionary jurisdiction in hope of more explicitly endowing that type of jurisdiction with theological knowledge and spiritual authority. Norman Doe describes significance of this shift in language, noting: “While reason may be largely a technical concept of law, conscience is also a special moral force, chiefly through pulpit and confessional speeches, but everyone knows that an offense to conscience is fraught with danger. soul."
The appearance of word "conscience" emphasizes idea that justice, by administering justice, also saves souls of people. A. W. B. Simpson succinctly said, “As a judge of conscience, main function of justice is not petitioner, but defendant and his soul.”
Indeed, some aspects of chanting process suggest that conscience is closely linked to personal morality, as common law courts are bound by legal system, whereas in chanting courts, legal truth is often determined through investigation and in presence of judges. Obtained by pleading guilty under oath.
Thus, in a law passed at end of fourteenth century, chancellor was supposed to help petitioner "by interrogation or statement", and in 1408 chancellor's materials noted that accused "sworn to Holy Gospel, in this matter Tell truth." Chancellors were particularly well suited to handle cases involving breaches of law, as this was often a matter of personal integrity of parties to dispute, and by middle of fifteenth century, such cases made up bulk of chancellor's business.
A particularly instructive parliamentary petition during reign of Henry V emphasized modern perception of close, but in this case negative connection between chanting procedure and civil law.
In a petition presented to Parliament in March 1416, House of Commons complained that Lord Chancellor had used subpoenas and evidence of causation to settle issues that could easily be settled at common law. They argue that writ reduces king's fines from other courts and that king's judges have to spend a lot of time reviewing writ, thereby distracting from judicial work.
The author contends that key allegation concerns Chancellor's trial itself, as there is no record of how and why writ was issued, citing arbitrary power of Chancellor. The House of Commons declared that cases brought before Lord Chancellor and Treasury could not be concluded except by examination and testimony of parties under oath in accordance with provisions of Civil Law and Law of Holy Church, which was contrary to common law.
To emphasize clerical origins of these new procedures, House of Commons pointed out that a "deceptive innovation" had been introduced by late John Waltham, Bishop of Salisbury, and implication was clear: as a result, higher clergy officers impose civil and canon law procedures, and judges undermine common law. right.
This is not a comprehensive assessment of origins or nature of chancellor's jurisdiction, as it ignores context and application of discretionary justice and natural law, as modern historians tend to do, but emphasizes "the chancellor, ruled by a clergy, largely imbued with spirit of canon law."
However, in Parliament, clergy clearly articulated unchanging link between will of God and rule of law. In doing so, they implicitly claimed to have supreme authority in matters of law in realm and to guide subjects in major aspects of fifteenth-century English public law.
The common denominator of these parliamentary sermons was observance of principles of justice and law, not because these provisions together constituted a code of laws from king and parliament, but because provisions came from God. Thus, in 1414, Bishop Beaufort urged his deputies to follow example of king, insisting that "God's divine law is most laudable character."
Similarly, in December 1421, Thomas Langley, Bishop of Durham, submitted an article to Parliament based on psalm "God's law is perfect, converting soul", in which he postulated existence of three types of law: - first, law of power, freeing people from offenses by prescribed punishment; secondly, law of avarice, or covetousness, exploiting greedy nature of people; God's law makes a person generous and free, which is root of all good things. "
What exactly do Beaufort and Langley mean by "the law of God"? They may have deliberately left it obscure, as it is an all-encompassing phrase suggesting a high moral code that should underlie all worldly affairs. As we have seen, in minds of theologians, law of God is synonymous with law of nature.
The supremacy of God's law over other codes was so much promoted by Lord Chancellors of fifteenth century that in 1439 John Stafford, Bishop of Wales, made a declaration at opening of parliamentary speech alluding to centrality of divine law. in proper functioning of society and state.
Stafford declared: “The King calls on Parliament to unite in affairs of state, to keep laws and rules of God, and to put aside or eliminate all cruelty, that life may be good and that eternal peace may be sought. . and get."
In 1467, Robert Stillington, Bishop of Wales, similarly declared: “Justice is basis and source of all prosperity, peace and political dominion in all areas, and of all laws in world. rests on three things: namely, law of God, law of nature, and positive law.”
In this case, law of God and law of nature are described as different codes, although difference between them may have been blurred in counselor's mind. In Parliament of 1489, John Morton gave clearest description of fundamental precepts of medieval law, for which there were three kinds of justice: "Exchange, distribution and special virtue, in exchange and distribution Create equality."
In other words, discretionary justice based on natural law principles goes beyond other legal classifications. Further, Morton explains origin of justice, pointing out that it primarily comes from God, who is rightly called eternal law. It is said that laws of nature, imprinted in living beings, are indestructible.
The expression of these ideas seems to have become more complex as fifteenth century progressed, when clergy played a special role in transmission of theological thought and written concepts to laity in general.
In addition to referring to God's law in a political context, parliaments also began to use word "just", which was more prominent in public discourse in fifteenth century and did not indicate existence of a unique, self-sufficient right. The Neo-Confucian system was what "justice" meant in context of sixteenth-century justice.
The author argues that this refers to closely related and largely synonymous principles of reason and conscience that are deeply rooted in natural law tradition, pointing to principle of rationality, since Proper Principles deal with violations, especially where common law is found to be deficient or otherwise inadequate.
Justice, like reason and conscience, has a strong foundation in canon law, and it is for this reason that highly educated higher clergy should speak authoritatively on this issue and affirm its relevance in a secular legal context.
So, in 1431, William Ringwood, an eminent doctor of civil and canon law, delivered an opening speech before Parliament on behalf of John Kemp, Archbishop of York, who was absent due to ill health. In his speech, Ringwood stated that rule of kingdom of England derives from three virtues: namely, unity and unity, peace and tranquility, and justice and uprightness.
Lingwood said, “In recent times these virtues have been corrupted by intolerable vices, and fairness and fairness in particular have been undermined by defenders of legal process and oppressors of poor. Accordingly, Parliament was convened to provide an appropriate method of rectification."
Two years later, John Stafford, Bishop of Wales, wrote psalms explaining duties of king's subjects: Bishops and lords are to bring peace, unity, and true harmony, without deception or pretense, to knights and middle class. The class must ensure that justice and true justice exist without oppression of poor.
Ordinary people and persons of lesser status had to demonstrate "a willingness to obey king and his laws without concealment or coercion." Interestingly, Stafford, like Linwood, equates justice with fair treatment of poor. Moreover, implication of these two articles is that justice is not merely a quality exhibited by judges in context of time, but that justice must be practiced in general, especially with respect to behavior of gentlemen, or expectation that justice is found, that in their justice coexists.
Fairness and fairness are often linked, meaning that fairness alone is not enough to ensure fairness in all cases. Furthermore, it is implied that justice can lead to unfair sentences.
The Lord Chancellor clearly resonated with role of ultimate arbiter in teaching politics importance of justice and other fundamental legal principles, but in 1453 Lord Chancellor announced to Parliament that a committee would be formed: "Everyone, everyone may have recourse to administration of justice, and Justice and Wisdom once again reminds us that judges do not have a monopoly on exercise of fair jurisdiction.
This last area of church involvement in secular jurisdiction pushes discussion in an entirely new direction, but more than any other example to date, it demonstrates underlying assumption that higher clergy must be fully integrated into secular legal context. .
Until now, role of bishop as judge to king has been described solely in context of discretionary justice. The logic is pretty clear: discretionary justice requires sound judgment and moral integrity.
These qualities are based on concepts of reason, conscience, and justice that bishops must possess and claim through their daily teaching and calling. But this distorts picture, since it has long been recognized that reason, conscience and justice operate with customary law as powerlessly as in other legal contexts.
Reference: Campbell, J., The Life of England's Master and Defender, from The Reign of King George V, p. 5 (1868)
UK Department of Constitutional Affairs Constitutional Reform: Reforming Office of Vice-Chancellor (2003)
Encyclopædia Britannica, Cambridge University Press, Your Honor, 11th edition (1911)