Today being the commemoration of George Herbert in the Anglican Calendar I thought (for no better reason than that he is one of my heroes) that it might be instructive to look at what he had to say in The Country Parson about going to law:
“The Parson’s Completenesse
The Countrey Parson desires to be all to his Parish, and not onely a Pastour, but a Lawyer also, and a Phisician. Therefore hee endures not that any of his Flock should go to Law; but in any Controversie, that they should resort to him as their Judge. To this end, he hath gotten to himself some insight in things ordinarily incident and controverted, by experience, and by reading some initiatory treatises in the Law, with Daltons Justice of Peace, and the Abridgements of the Statutes, as also by discourse with men of that profession, whom he hath ever some cases to ask, when he meets with them; holding that rule, that to put men to discourse of that, wherin they are most eminent, is the most gain full way of Conversation.
Yet when ever any controversie is brought to him, he never decides it alone, but sends for three or four of the ablest of the Parish to hear the cause with him, whom he makes to deliver their opinion first; out of which he gathers, in case he be ignorant himself, what to hold; and so the thing passeth with more authority, and lesse envy. In judging, he followes that, which is altogether right; so that if the poorest man of the Parish detain but a pin unjustly from the richest, he absolutely restores it as a Judge; but when he hath so done, then he assumes the Parson, and exhorts to Charity.
Neverthelesse, there may happen somtimes some cases, wherein he chooseth to permit his Parishioners rather to make use of the Law, than himself: As in cases of an obscure and dark nature, not easily determinable by Lawyers themselves; or in cases of high consequence, as establishing of inheritances: or Lastly, when the persons in difference are of a contentious disposition, and cannot be gained, but that they still fall from all compromises that have been made. But then he shews them how to go to Law, even as Brethren, and not as enemies, neither avoyding therfore one anothers company, much lesse defaming one another”.
I’m not sure that its any longer a brilliant idea for even legally-qualified clergy to dispense free legal advice unless they are currently practising – and, if they are, their partners might not be too keen on them doing so in any event. But, ostensibly at least, life was very different in George Herbert’s day, when the parish priest might be the only decently-educated person in the parish – and, if he was one, almost certainly the only graduate. (Or was it? Perhaps things have come full circle: there are inner-city areas where the clergy – and not just those from Churches with a parish system – are still the only educated professionals in the neighbourhood because they live over the shop.)
Various thoughts occurred on re-reading the extract from The Country Parson.
First, what Herbert seems to have been advocating was something like lay arbitration or an informal version of the lay magistracy – but in civil matters rather than criminal.
Secondly, one of the areas in which the church courts in England and Wales operated was probate of wills and testaments not involving freehold property – the latter restriction because testators were not normally free to devise real property: see Javier Martinez-Torrón: Anglo-American law and canon law: Canonical roots of the common law tradition (Berlin: Duncker & Humblot GmbH 1998 at 41). This persisted until the entry into force of the Probate Act 1858. So what Herbert was proposing was a procedure that was still within the aegis of the Church but without the expense and formality of a consistory court.
Thirdly, his proposal was by no means revolutionary. In From Cranmer to Sancroft (London: Hambledon-Continuum 2006 at 71) Patrick Collinson notes that:
“.. in some places the parson’s peacemaking role was formalised as an extra-curial mechanism for ending quarrels. At [Bernard] Gilpin‘s Houghton, for example, but after Gilpin’s time, it was agreed that all controversies should be formally referred to the arbitration of some of the chief inhabitants and of the parson, who was to be universal ‘umpire'”.
And finally, Herbert’s advice from the mid-seventeenth century remains pretty sound: try to settle your differences amicably; don’t go to law if you can possibly avoid it; but if there’s no avoiding the courts, at least try not to personalise things. (The current edition of Quaker Faith & Practice still contains an advice from 1833 of which George Herbert would no doubt have heartily approved: that “it would be well that Friends were at all times ready to submit their differences, even with persons not of our religious persuasion, to arbitration, rather than to contend at law”.)