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Published online by Cambridge University Press: 03 January 2022
Over the course of the reigns of the last two Tudors and first three Stuarts – just in excess of a century – the national established Church of England was disestablished twice and re-established twice. Following the return to Rome under Mary, Elizabeth's settlement re-established the English Church under the royal supremacy, set down church doctrine and liturgy, embarked on a reform of canon law and so consolidated an ecclesial polity which many today see as an Anglican via media between papal Rome and Calvinist Geneva. However, as a compromise, the settlement contained in itself seeds of discord: it outlawed Roman reconciliation and recusancy; it extended lay and clerical discipline by the use of ecclesiastical commissioners; and it drove Puritans to agitate for reform on Presbyterian lines. While James I continued Elizabeth's policy, disappointing both Puritans and Papists, Charles I married a Roman Catholic, sought to impose a prayer book on Calvinist Scotland, asserted divine-right monarchy, engaged in an 11-year personal rule without Parliament and favoured Arminian clergy. With these and other disputes between Crown and Parliament, civil war ensued, a directory of worship replaced the prayer book, episcopacy and monarchy were abolished and a Puritan-style republic was instituted. The republic failed, and in 1660 monarchy was restored, the Church of England was re-established and a limited form of religious toleration was introduced under the Clarendon Code. In all these upheavals, understandings of the nature, source and authority of human law, civil and ecclesiastical, were the subject of claim and counter-claim. Enter Robert Sanderson: a life begun under Elizabeth and ended under Charles II, a protagonist who felt the burdens and benefits of the age, Professor of Divinity at Oxford and later Bishop of Lincoln, and a clerical-jurist who thought deeply on the nature of human law and its place in a cosmic legal order – so much so, he may be compared with three of his great contemporaries: the lawyer Matthew Hale (1609–1676), the cleric Jeremy Taylor (1613–1667) and the philosopher Thomas Hobbes (1588–1678).
1 I thank Mari James, at the Library of St David's Cathedral, Wales, for bringing Sanderson to my attention.
2 Walton, I, The Life of Dr. Sanderson (London, 1681), p 3Google Scholar. Walton says he was born at Rotherham, but it is Sheffield in J Foster (ed), Alumni Oxonienses (Oxford, 1891): this also records that he was the son of a cleric.
3 McGee, J S, ‘Sanderson, Robert (1587–1663)’ in Oxford Dictionary of National Biography (Oxford, 2004)Google Scholar.
4 Walton, Life of Dr. Sanderson, p 15.
5 Jacobson, W (ed), The Works of Robert Sanderson, 6 vols (Oxford, 1854), vol VI, p 361Google Scholar.
6 Bray, G (ed), The Anglican Canons 1529–1947 (Woodbridge, 1998), pp lxxiii–lxxvii and 568Google Scholar.
7 Lake, P, ‘Serving God and the times: the Calvinist conformity of Robert Sanderson’, (1988) 27 Journal of British Studies 81–116CrossRefGoogle Scholar.
8 Sedgwick, P H, The Origins of Anglican Moral Theology (Leiden, 2019), pp 305–306CrossRefGoogle Scholar.
9 Cuming, G C, ‘The Prayer Book in convocation, November 1661’, (1957) 8 Journal of Ecclesiastical History 182–192 at 192CrossRefGoogle Scholar.
10 J Martin, Walton's Lives (Oxford, 2001), pp 272–299.
11 McGee, ‘Sanderson, Robert’; there are portraits of him at Christ Church, Oxford and in the National Portrait Gallery.
12 See generally Wood, T, ‘A great English casuist’, (1948) 147 Church Quarterly Review 29–45Google Scholar. For all Sanderson's works, see <http://www.prdl.org/author_view.php?a_id=488>, accessed 16 September 2021.
13 Wordsworth, C (ed and trans), Bishop Sanderson's Lectures on Conscience and Human Law (Lincoln, 1877)Google Scholar; ix: the editor thought the lectures relevant to the ‘condition of the Church of England’, ‘various important and difficult questions’ on ‘the relations of Church and State’ and the laws, ‘both Civil and Ecclesiastical’, ‘now occupying men's minds’.
14 Ibid, p 2, Lecture I.2. Hereafter the relevant pages in the 1877 edition follow the lecture number and ‘verse’.
15 Lecture V.1 (pp 121–122). In A Discourse [on] the Church (1688) Sanderson defines the ‘Catholic Church’ as ‘all those throughout the World’ who by doctrine and worship profess Christ, eg the ‘particular’ Church of England.
16 Lecture V.2–3 (pp 122–124); Sanderson cites Romans 13:5 and relies on Aquinas.
17 Lecture V.5 (pp 125–126). In V.6 Sanderson discusses Calvin (with whom he disagrees).
18 Lecture V.7–9 (pp 127–129); again: ‘no man can be obliged to contradictions’ (this is a canonical regula iuris).
19 Lecture V.11–19 (pp 132–140); Sanderson uses Aquinas here and, if ‘public welfare requires’, a subject must obey ‘the laws of a ruler de facto’ for such things as defence of the realm, administration of justice or ‘care of commerce’.
20 Lecture V.22–41 (pp 143–159).
21 Lecture VI.2–3 (pp 161–163); 1 Peter 2:18 and Rom. 13:1–7 are cited.
22 Lecture VI.4–9 (pp 164–168); eg, a law against eating flesh in Lent might trouble consciences but a law requiring property to be destroyed in wartime must be obeyed, ‘as every good man is bound to sacrifice his own interest’.
23 Lecture VI.12–14 (pp 175–176); the footnotes cite eg Dan. 3:18, Acts 4:19 and Augustine. See also note 25 below.
24 Lecture VI.16 (pp 177–178); VI.17 treats tender consciences and VI.18 covers laws ameliorating the evil of usury.
25 Lecture VI.15 (pp 176–177): if a law is unjust as to its efficient, final or formal causes, ‘yet if there be no defect of universal justice, that is, if by the force and command of the law, the act to be performed by the subject may be executed by him without any sin of his own, that justice is of itself sufficient to induce an obligation’.
26 Lecture VI.22–24 (pp 183–186).
27 Lecture VI.25–32 (pp 186–195); the notes cite 1 Cor. 14:40.
28 Lecture IV.32–34 (pp 116–117).
29 Lecture VII.2–4 (pp 197–200); VII.3: and ‘he who lays a command upon another, if he has just authority to do so, obliges the person he commands, but lays no obligation upon himself; because a command is an act of power’.
30 Lecture VII.5–6 (pp 200–201); 1 Pet. 2:13, Rom. 13:1 and 1 Tim. 2:2 are cited. Sanderson notes that other ‘forms of government’ exist.
31 Lecture VII.7–10 (pp 201–206); the notes cite eg Deut. 33:4–5 and James 2:8, as well as Bracton, De legibus Angliae, I.I.
32 Lecture VII.12 (pp 207–208): ‘legislative and judicial powers’ are the ‘two illustrious parts of jurisdiction’.
33 Lecture VII.13 (pp 207–209); Sanderson discusses eg ‘Julian the civilian’ (209); the notes cite ‘Digest. lib. i. tit. iii’.
34 Lecture VII.14–21 (pp 209–218); the notes cite eg Prov. 8:15 and Rom. 13:1, 4, 6, as well as ‘Ulpian. F. de Constit. Princip. Digest. Lib. i. tit. iv. § I’. Sanderson also discusses England and elections to the Commons.
35 Lecture VII.22 (pp 218–219); the notes cite Arist. Pol. 3.
36 Lecture VII.23–27 (pp 219–223): the notes cite Arist. Pol. 1.6 and ‘Digest. i. tit. iii. l. 32’.
37 Lecture VII.29–30 (pp 224–226).
38 Lecture VIII.1–7 (pp 227–234); the notes cite ‘Gratian. Decret. Pars. I. Distinct. 4. In istis’; VIII.2: ‘God Himself … solemnly published his law … from Mount Sinai’. For ignorance of law, see VIII.8–9 (pp 234–236).
39 Lecture VIII.10 (pp 236–238); VIII.11–25 (pp 238–255) deals in detail with penal law and punishment.
40 Lecture VIII.16–17 (pp 243–244); the notes cite Azpilcueta's ‘Enchiridion. cap. 23, §48’.
41 Lecture IX.1–3 (pp 259–261); on the public good, the notes cite Arist. Eth. 8.11.
42 Lecture IX.4–11 (pp 261–267); Sanderson discusses St Paul and St Peter (the notes cite Rom. 13:3–4 and 1 Pet. 2:14) and Aristotle (the notes cite Arist. Eth. Nic. 5.1.14).
43 Lecture IX.12–13 (pp 267–269); the notes cite Arist. Pol. 2.8.
44 Lecture X.16 (pp 283–285); the notes cite Arist. Eth. 5.14 and Arist. Pol. 3.11.19 and 3.15.4.
45 Lecture X.17–23 (pp 285–293); 1 Sam. 8 is cited and Sanderson also relies on Cicero, De legibus, 3.8.
46 K Thomas, ‘Cases of conscience in seventeenth-century England’, in J Morrill, P Slack and D Woolf (eds), Public Duty and Private Conscience in Seventeenth-Century England: essays presented to G.E. Aylmer (Oxford, 1993) pp 29–56; for Sanderson, see p 37.
47 Sedgwick, P H, The Origins of Anglican Moral Theology (Leiden, 2019), p 190CrossRefGoogle Scholar.
48 Lecture VIII.10 (p 236).
49 Walton, Life of Dr. Sanderson, pp 19, 44; see also p 38; Sanderson also read genealogy and heraldry. On Zouche, see Helmholz, R H, The Profession of Ecclesiastical Lawyers: an historical introduction (Cambridge, 2019), pp 157–161CrossRefGoogle Scholar: he retained his chair; his Elementa (on civil and canon law) was first published in 1629.
50 Walton, Life of Dr. Sanderson, p 55.
51 Wordsworth, Bishop Sanderson's Lectures, p v; Thomas, ‘Cases of conscience in seventeenth-century England’, p 42; Sedgwick, Origins of Anglican Moral Theology, pp 302, 335, 339–345.
52 J Taylor, Ductor dubitantium, bk III, ch 4, ‘Of the powers of the Church’, ‘Rules’ 1–20, set out in R Askew, ‘Jeremy Taylor's merely spiritual power: an examination of canon law in Ductor Dubitantium 1660’, (1994) 3 Ecclesiastical Law Journal 156–165 at 164–165.
53 D S Sytsma, ‘Matthew Hale as theologian and natural law theorist’ in M Hill and R H Helmholz (eds), Great Christian Jurists in English History (Cambridge, 2017), pp 163–185.
54 A Cromartie, Sir Matthew Hale 1609–1676: law, religion and natural philosophy (Cambridge, 1995), pp 46, 49, 90, 92, 180–181.
55 M Hale, The History of the Common Law of England (London, 1713), p 27.
56 Hale's view of the reception of papal canon law was also adopted, of course, by ecclesiastical lawyers; see eg J Godolphin, Repertorium canonicum, or An abridgment of the ecclesiastical laws (London, 1678), p 131.
57 R Tuck, Hobbes (Oxford, 1989), p 85: De cive XVIII.28.
58 T Hobbes, Leviathan, ed C B MacPherson (London, 1986), ch 26 (pp 311–335).
59 Ibid, ch 47 (p 711).
60 Ibid, ch 42 (pp 524, 545–549, 550, 551, 554, 557, 558, 560, 566).
61 Ibid, ch 42 (pp 592, 594); Hobbes criticises Bellarmine's argument that ‘the pope has power to make laws’.
62 Ibid, ch 42 (pp 573, 575, 576). Here, of course, Hobbes echoes Hooker.
63 Ibid, ch 42 (p 594) and Conclusion (p 725).
64 T Hobbes, The Elements of Law (London, 1650), II.10.7–8. See also eg P Springborg, ‘Leviathan and the problem of ecclesiastical authority’, (1975) 3 Political Theory 289–303; L Ribarevic, ‘Leviathan and medieval universitas: Hobbes's debt to canon law’, (2017) 38 History of Political Theory 92–109.
65 Walton, Life of Dr. Sanderson, pp 12–13.