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The Devil's Law Cases
Published online by Cambridge University Press: 13 December 2012
Abstract
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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References
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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’).
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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’.
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35 The Times, 7 August 1861.
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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’.
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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.
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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.
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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.
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91 Archdeacon Randall (president), Canon Girdlestone, Canon Cooper and Canon Mather; Bishop David Anderson dissenting. See Jenkins, H, Jenkins v Cook (London, 1880), p 28Google Scholar.
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95 Ibid, at 494.
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99 Quotations from the appeal case are from Jenkins PC, at 102–105, unless otherwise specified.
100 Ibid, at 101.
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102 The Times, 26 May 1881 (obituary of Henry Jenkins).
103 Jenkins, Jenkins v Cook, pp 316–317.
104 The Times, 21 February 1876.
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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.