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Published online by Cambridge University Press: 12 February 2019
This journal has published two distinguished series on the lives and careers of individual jurists in the history of English church law, from the mediaeval period to the late nineteenth century: one by Professor Sir John Baker on ‘famous English canonists’ (1988–1997); and the other by Professor Richard Helmholz on ‘notable ecclesiastical lawyers’ (2013–2017). Most prepared for their professional careers with the study of civil law at Oxford or Cambridge (and before the Reformation also of canon law). Many practised as judges, advocates and proctors in the church courts (until statute ended much of their jurisdiction in the 1850s). Some wrote treatises on church law. A small number were also priests, but less so as the centuries unfolded. While these professional canonists and civilians may have had a monopoly in practising church law, they did not have a monopoly in thinking or writing about it. The clergy, who never trained or practised as lawyers, also had things to say about church law. But the clerical profession has been somewhat neglected by scholarship as a class contributing to the history of church law and jurisprudence. From diocesan bishops through parish priests to clerical scholars in the universities, their books, pamphlets, sermons, letters and other materials often deal with the nature, sources and subjects of church law. Their aims vary: from the educational through the historical or theological to the practical and polemical. These priest-jurists – fathers-in-law, they might quip – contributed much to the intellectual development of church law. One is Robert Owen, a Welsh scholar cleric whose books include Institutes of Canon Law (1884). No scholar has to date unveiled Owen as a notable Anglican priest-jurist – strangely, he has been lost to scholarship as among those whom he himself chided as ‘eminent Canonists’ who ‘hide themselves’ and remain ‘veiled Prophets’.
I am very grateful to the Principal and Fellows of Jesus College, Oxford, for a short-term Visiting Fellowship to prepare for this study, and to Robin Darwall-Smith, College Archivist, and Owen McKnight, College Librarian.
2 The former was later published as Baker, J, Monuments of Endlesse Labours: English canonists and their work 1300–1900 (London, 1998)Google Scholar.
3 Owen, R, Institutes of Canon Law (London, 1884), p vGoogle Scholar.
4 Hardy, E, Jesus College (London, 1899), p 185Google Scholar: ‘The College was almost exclusively Welsh’, its members mixing with those of other colleges ‘to a very small extent’. The college was founded in 1571.
5 The Register Book of Jesus College, 1824–1882 (hereafter Register Jesus Coll), 15 November 1839 and 7 December 1839: ‘I Robert Owen of the Parish of Dolgelly in the County of Merioneth and Diocese of Bangor was admitted Scholar of Jesus College, having first taken the oaths required by the Laws of the Realm and the Statutes of the said College’. See also 2 March 1857: Owen is allowed to defer proceeding to DD. See also Foster, J, Alumni Oxonienses: the members of the University of Oxford 1715–1886, vol III (Oxford, 1888), p 1052Google Scholar.
6 Crockford's Clerical Directory (third issue, London, 1865), p 476Google Scholar.
7 Register Jesus Coll, 3 September 1845: election of ‘Robert Owen MA Clerk to the North Wales [Fellowship]’; he was admitted probationary Fellow on 25 September 1845 and actual Fellow on 25 September 1846.
8 There are 24 lines in the Oxford Dictionary of National Biography on Owen, written by D Thomas and revised by G Murphy in 2004: Owen had ‘an occasional correspondence’ with Newman.
9 Owen, R (ed), John Johnson: theological works, vol I: The Unbloody Sacrifice (1714), Library of Anglo-Catholic Theology (Oxford, 1847)Google Scholar.
10 Owen, R, An Apology for the High Church Movement on Liberal Principles (Oxford, 1851)Google Scholar. Published by John Henry Packer: Pusey House Library Oxford, Catalogue Number 5615, Pa 284.
11 Owen, R, An Introduction to the Study of Dogmatic Theology (London, 1858; second edition 1887; both editions published by Hayes)Google Scholar.
12 20 (1858) The Ecclesiastic and Theologian 145–154 at 145; the reviewer is not identified.
13 Principal's Register (Jesus College Archives Catalogue RE7): see respectively 2 November 1846, 1 November 1848, 1 November 1849, 17 October 1857, 6 October 1858; initially Owen was Librarian for a short time, resigning on 16 February 1861.
14 For 1859–1860 see eg Crockfords Clerical Directory (1865), p 476.
15 Register Jesus Coll, 7 December 1853, 24 April 1856, 21 November 1856, 17 October 1857 and 23 May 1849.
16 Ibid, 15 June 1863; Jesus College, reprinted from the Victorian History of the Counties of England, Oxfordshire vol III (no date), p 276. The work may be seen today.
17 He is billed for all these except laundry: Buttery Book, eg MS BB.a.181 (1838), 183 (1840), 188 (1845), 201 (1854), 217 (1862), 219 (1863), 220 (1864). Owen is not ‘on the books’ in BB.a.223 (1865): see below.
18 Register Jesus Coll, 2 July 1851; see also eg 9 June 1853, 21 June 1854, 31 May 1856.
19 For extracts from Jones’ diaries, see Ward, J and Coe, H (eds), Father Jones of Cardiff (London, 1907), pp 3–4Google Scholar: Owen praised French ‘liberty’; pp 14 and 59. I thank Rhidian Jones for this connection.
20 Jesus College Archives, formerly MS 216: J Green, Diary (1859–64), pp 55, 58–59, 60–61. See also Baker, J, Jesus College Oxford: 1571–1971 (Oxford, 1971), pp 49, 52, 58Google Scholar.
21 Dessain, C and Kelly, E (eds), The Letters and Diaries of John Henry Newman (London, 1971), XXI, pp 551–552Google Scholar.
22 Lewis, D, Notes on the Nature and Extent of the Royal Supremacy in the Anglican Church (London, 1847), p 96Google Scholar: Pusey House Library Oxford: Pamphlets 6436, Pa 316.
23 Bangor MSS, General Collection, Volume One, 1–1,000, MSS 72–74: Commonplace Books of the Rev Robert Owen, BD, Fellow of Jesus College, Oxford, covering the years 1844–1847, 1853–1854 and 1854.
24 Ibid, MS 72, p 2, June 1844: ‘I finished reading Hooker, On the Laws of Ecclesiastical Polity’ (Keble edition), the first 4 books in January, fifth in April, and others May and June’; p 413, 7 June 1847: Mabillon, Gratian, Lancelotti.
25 Ibid, MS 72, pp 337ff, 2 March 1847. In MSS 73 and 74 he returns to canonical themes.
26 Register Jesus Coll: he attends meetings on 9 April, 7 May, 17 June, 2 July and 13 October 1864.
27 Register Jesus Coll, 8 November 1864, signed Charles Williams, Principal.
28 Pusey House, Oxford: Archives Catalogue No 13, Hamilton Papers, Rt Revd Walter Kerr Hamilton and Family, compiled by P Meadows, 1989, revised by K McNab, 1996, p 192. Ffoulkes resigned as fellow to become Roman Catholic in 1850 but returned to Anglicanism as vicar of the university church in Oxford.
29 Ibid, HAM 6/55/1, letter of 18 April 1867.
30 Ibid, HAM 6/55/2, letter of 22 June 1867.
31 Ibid, HAM 6/55/3, letter of 17 August 1867; Ffoulkes also wrote that Owen considered moving from Barmouth.
32 Owen, R, Sanctorale Catholicum or Book of Saints (London, 1880)Google Scholar; Owen, R, Essay on the Communion of the Saints (London, 1881)Google Scholar; R Owen, Pilgrimage to Rome (1883).
33 Owen, R, The Kymry: their origin, history and international relations (Carmarthen, 1891)Google Scholar.
34 Crockford's Clerical Directory (1893), p 1003. The title page of The Kymry (1891) styles Owen: ‘Rev. Robert Owen BD, Sometime Fellow of Jesus College Oxford; Senior Public Examiner in Law and Modern History’.
35 Bye-Gones, Relating to Wales and the Border Counties (Oswestry, 1902), p 350Google Scholar: obituary and the note that ‘Mr Owen had retired for many years at Barmouth, where he owned considerable property’. But his last home was modest: Tan-y-Graig, 4 Cambrian Street. His wealth at death was £11,525 16s 1d.
36 I found no letter from Owen in Hamilton's papers at Pusey House (see above n 28). There is no reference to Owen in Liddon, H, Walter Kerr Hamilton: Bishop of Salisbury (London, 1869)Google Scholar, though pp 44–45, 52, 76, 81 and 89–92 indicate that Hamilton had a keen interest church law; according to p 78 he did not ‘dread’ separation of Church and State.
37 Owen, Institutes, pp v–vi: on Hamilton's death in 1869, Owen ‘shrank from prosecuting an ungrateful task’, but, ‘Warned by the evening-star of life’, resumed it and ‘Events have come to pass, which call for an out-spoken utterance on subjects, which usually demand and obtain a decorous, even timid, reserve. I write with the full sense of my responsibility to God’; ‘undeterred’ by likely reactions to it, he looked ‘only to the last remuneration’.
38 Owen, Institutes, pp v–vi: ‘In those days one rarely met with any who paid attention to the subject: now we hear of “most eminent Canonists” in our midst, yet somehow they manage to hide themselves, and remain veiled Prophets’; an example of an exception is J Lequeux (1796–1866), Manuale Compendium Juris Canonici (1850).
39 Owen, Institutes, p vi.
40 Ibid, p viii.
41 Ibid, p x.
42 Ibid, pp xi–xii, xxv; see also p 100.
43 Ibid, p xvi: ‘In our day we witness the triumph of this fatal principle in the Public Worship Regulation Act’ (1874) and proposals for a ‘supreme tribunal of laymen’ in spiritual cases.
44 Ibid, p xxi.
45 Bye-Gones, relating to Wales and the Border Counties, p 350; I thank Revd Roger Brown for this reference.
46 Owen, Institutes, p 58. He cites the Council of Château-Gonthier 1231, Canon 16: the practice to appoint Englishmen commenced under the Plantagenets but was ‘corrected under the Tudors, and revived by the House of Hanover’.
47 Ibid, pp xxv–xxvi.
48 Owen, Apology, p 81.
49 Owen, Institutes, pp vi–vii.
50 Ibid, pp 1–114.
51 Ibid, pp 115–178.
52 Ibid, p 3; the councils in question were Nicaea, Constantinople, Ephesus and Chalcedon.
53 Ibid, p 5; for the latter, Owen cites a Decretal of Gregory III, Tit 49, c 6.
54 Ibid, pp 3–4; he does not discuss here the Submission of the Clergy Act 1534.
55 The breadth of Owen's sources is unsurprising given his reading recorded in his Commonplace Books: see above.
56 But note Owen, Institutes, p vi: ‘seeing that the Canon Law has no practical independent working among us [as it is subsumed in English ecclesiastical law], I have not touched the complex machinery once employed in its operation’.
57 Ibid, p 67: here on majority etc voting in a cathedral chapter, he cites eg Bartolus.
58 Ibid, p 118: he likens it to the confirmation of a bishop, as belonging to ‘superiors’.
59 Ibid, p 56; he cites eg Johann Georg Reiffenstuel (1641–1703).
60 Ibid, p 58, citing Panormitanus.
61 Ibid, p 4, citing d'Héricourt and Van Espen, among others.
62 Ibid, pp 4–5 (emphasis in original).
63 Ibid, p 69.
64 Ibid, pp 72–75; this is in a discussion on celibacy in which he cites Panormitanus.
65 Ibid, p 94, citing Panormitanus.
66 Ibid, pp 98–100, citing Balsamon on consulting women. But there are limits: women may not exercise ministerial functions and ‘Laymen should not assume the office of preaching without authority of the clergy, unless perhaps they be inwardly moved by Divine grace’; Owen cites Gratian and eg Council of Trullo, Canon 70.
67 Ibid, pp 118–119.
68 For the application of this sort of (contested) ‘periodisation’ to the development of religious freedom in England, see eg Sandberg, R, Law and Religion (Cambridge, 2011), pp 17–38CrossRefGoogle Scholar.
69 See eg Doe, N and Pulleyn, S, ‘The durability of maxims of canon law: from regulae iuris to canonical principles’, in Harris, T (ed), Studies in Canon Law and Common Law in Honor of R.H. Helmholz (Berkeley, CA, 2015), pp 303–336Google Scholar.
70 See eg Doe, N, ‘Richard Hooker: priest and jurist’, in Hill, M and Helmholz, R (eds), Great Christian Jurists in English History (Cambridge, 2017), pp 115–137CrossRefGoogle Scholar.
71 Godolphin, J, Repertorium Canonicum, or An Abridgement of the Ecclesiastical Laws of This Realm (London, 1678)Google Scholar.
72 Burn, R, Ecclesiastical Law, 4 vols (London, 1763)Google Scholar; see above n 69 for maxims and axioms in Gibson and Burn.
73 Cripps, H, A Practical Treatise on the Law Relating to the Church and Clergy (first edition, London, 1849; eighth edition, London, 1937)Google Scholar.
74 Stephens, A, A Practical Treatise of the Law Relating to Clergy, 2 vols (London, 1848)Google Scholar.
75 Phillimore, R, Ecclesiastical Law, 2 vols (first edition, London, 1873; second edition, London, 1895), pp 1749–1818Google Scholar: ‘other churches’.
76 Whitehead, B, Church Law: being a concise dictionary of statutes, canons, regulations and decided cases affecting the clergy and laity (second edition, London, 1899)Google Scholar. It also touches on ‘dissenters’.
77 Sturge, C, Points of Church Law: and other writings illustrative of the law of the church (London, 1907)Google Scholar.
78 Blunt, J, The Book of Church Law: being an exposition of the parochial clergy and the laity of the Church of England (London, 1872), p 497Google Scholar.
79 Lacey, T, A Handbook of Church Law (London, 1903), p xiGoogle Scholar.
80 It would be instructive to place Owen intellectually in the Oxford Movement: see Brown, S, Nockles, P and Pereiro, J, (eds), The Oxford Handbook of the Oxford Movement (Oxford, 2017)CrossRefGoogle Scholar.
