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).Footnote 2 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’.Footnote 3
THE LIFE AND CAREER OF ROBERT OWEN
Robert Owen was born at Dolgellau, Merionethshire, in the Diocese of Bangor, on 13 May 1820, the third son of David Owen (surgeon) and Ann (née Evans). Educated at Ruthin Grammar School, Denbighshire, like so many Welshmen before and since, he matriculated in 1838 at Jesus College, Oxford.Footnote 4 He was elected to a scholarship in 1839, graduated BA in 1842 (with a third-class literae humaniores), proceeding to MA in 1845 and to BD in 1852.Footnote 5 Owen was ordained deacon in 1843 (by the Bishop of Oxford), and priest in 1844 (by the Bishop of Bangor).Footnote 6 He served briefly as a curate of Llanrhaidr near Denbigh until he returned to Jesus College, being elected as a fellow in 1845, where he remained as such until 1864.Footnote 7 While at Oxford, Owen came under the spell of the Tractarians.Footnote 8 In 1847 he edited for the Anglo-Catholic Library an early eighteenth-century book on the Eucharist.Footnote 9 In An Apology for the High Church Movement on Liberal Principles (1851), he considers that the movement does not propose ‘submission to Rome’ but rather ‘a reconciliation of all Christians … on the basis of the primitive Church, before it was unhappily split into rival Communions’. He defends the Church of England as a branch of the catholic Church of Christ, argues that its ‘subserviency to the temporal powers has seemed to overlay her spiritual growth’ and thinks that its rule by statute results in ‘the humiliating reproach of being called “an Act of Parliament Church”’.Footnote 10
The year 1858 saw the publication of An Introduction to the Study of Dogmatic Theology, Owen's book on the sources of theology, Holy Scripture, creeds, the attributes of God, created things, the Church and the sacraments.Footnote 11 For one contemporary review (in the High Church tradition), although not cast in ‘popular form’ the book ‘supplies what has long been wanted by the theological student, and supplies it well’, especially for clergy and their ‘shelves of working books’. Owen is praised for the breadth of his patristic, Roman Catholic and Protestant sources; the ‘multitudinous references given in the footnotes of every page’; and his study of sacraments, which ‘may worthily stand beside the labours of those great men who have been the means of restoring to the Church of England her full heritage of catholic doctrine’. Moreover, the review author comments: ‘We believe its author to have felt the great responsibility which attached to its compilation, and to have put down nothing lightly’, so representing ‘best and most concisely the belief of the Church at large’.Footnote 12
As a fellow, Owen participated fully in life at Jesus College. In turns he was elected to the college offices of Latin lecturer, catechetical lecturer, dean, Welsh reader, modern history lecturer and librarian,Footnote 13 and served as a university public examiner in law and history.Footnote 14 He dutifully attended college meetings, being a signatory to decisions on, for example: providing scholarships and fellowships endowed to benefit ‘natives of Wales’; criticism of appointing Englishmen to ‘very high positions of dignity in Wales’, in so far as the principal and fellows ‘know by experience that such appointments have not tended to the advancement of the interests of either the Church or of Education in Wales’; reforms to college statutes proposed by the University Commissioners; dividing chapel services between the Welsh and English languages; and dismissing a missionary fellow for ‘delaying’ when called by the Bishop of London to take on ‘the cure of souls’ in Her Majesty's plantations.Footnote 15 He also served on a committee to renovate the chapel with a new sacrarium arch, nave paving and reredos.Footnote 16 Owen's use of the college buttery, kitchen, coal, ale, letters, messenger, porter, laundry and cruets is recorded for each week of his 26 years there in the college records.Footnote 17 He spent some summers away from college with leave, often to travel abroad. One such was a visit to northern France in July 1851,Footnote 18 with a fourth-year Jesus student, Griffith Arthur Jones (1827–1906, later a leading Anglo-Catholic cleric in Cardiff), who writes amusingly of Owen; they remained friends for life.Footnote 19 He is also remembered favourably in the diaries of another Jesus student John Richard Green (1837–1883, later an eminent historian), who knew Owen as ‘Bob’.Footnote 20
It is difficult now to identify precisely what stimulated Owen's interest in canon law. He was perhaps influenced by his college contemporary David Lewis (1814–1895), fellow and vice-principal (1839–1846), curate to Newman at the university church and once described as ‘a student of canon law’.Footnote 21 Lewis resigned as fellow in 1846 to become Roman Catholic, and the following year published a pamphlet on royal supremacy and ecclesiastical jurisdiction (not unlike Owen's in 1851).Footnote 22 In any event, Owen developed interest in canon law from 1844 to 1854. Three commonplace books from this decade survive at Bangor University, with 1,288 pages in his own hand, all testifying to an extraordinary breadth and depth of reading under headings such as church biography, polemical theology, moral philosophy, ecclesiology, metaphysics, poetry, natural philosophy and archaeology; each has extracts from his reading, commentary, lists of authors read and indices.Footnote 23 His reading of church law included Richard Hooker; Jean Mabillon (1632–1707), the French Benedictine scholar, and his Traité des études monastiques (1691), which Owen found of ‘incalculable benefit’; and in the study of canon law, Gratian (whom he ‘carefully perused’), Giovanni Paolo Lancelotti (1522–1590), Institutiones iuris canonici (1563)Footnote 24 and legal history works by Claude Fleury (1640–1723).Footnote 25 All are cited in his Institutes.
Owen remained active at Jesus College until October 1864.Footnote 26 However, the register for 8 November 1864 reads: ‘The Principal communicated to the meeting a letter from Mr. Robert Owen resigning his Fellowship: the resignation was accepted, and the fellowship declared vacant’.Footnote 27 No reason is given here or in other college records and no letter of resignation exists in the archives. Nevertheless, some light may be shed on the resignation in three letters by Edmund Ffoulkes (fellow at Jesus at the same time as Owen), written in 1867 to Walter Kerr Hamilton, Bishop of Salisbury.Footnote 28 The letters are worth presenting in extenso in giving perhaps the best remaining insight of Owen's character. In the first, Ffoulkes asks Hamilton for an interview to discuss ‘a clergyman of the Church of England and late brother-fellow of mine at Oxford who is in distress. I am soliciting this favour quite unknown to him.’Footnote 29 In the second, he writes:
The individual, for whom I should have pleaded, had I been fortunate as to have seen your Lordship, is a late Fellow of Jesus College, the Revd. R. Owen. He was tempted into some serious improprieties of conduct: but as he resigned his Fellowship at once on being charged with them, I do not think they were ever judicially investigated to the full.
He continues:
But be that as it may, I feel I could stake my own character on his not being a depraved one – but like most of us he was surprised into wickedness more or less against his better self, and then unlike most of us, his sin, instead of remaining a secret became known. I resolved on finding him out the earliest opportunity: and I must say I never witnessed greater humiliation than his. Since then we have corresponded by post from time to time, and as far as I can judge, his life has been consistently that of a penitent.
However,
as I have told him, living alone will never restore him to the place in society which he has forfeited. He must put himself into the hands of someone who will appoint him what to do, and answer for him to others in the end, that he has redeemed his character.
So
I ventured to urge him to throw himself unreservedly on your … consideration. This he would do gladly, were he certain you would not object to communicate with one so unworthy. My opinion of him is that eccentric as he is in many ways, he is much too valuable to be lost to the service of Christ and His Gospel … this is my sole reason [in] asking whether you would be willing to hear from him.Footnote 30
In the third letter, Ffoulkes writes:
I have just heard from Mr. O. He is still at Barmouth … I did not tell him I had seen you at all: as I wanted merely to ascertain first whether a letter would still find him there – and now I feel rather inclined to give your Lordship the option of writing as it were ‘proprio motu’, before I say another word to him … Should you wish me to prepare him however for a letter from you I will gladly do so: otherwise if I do not hear from you I shall assume that you will take the matter into your own hands so that even when I write next, I shall not name having seen you – but merely continue to recommend his having recourse to you in a general way. If after some time of probation, he could manage to marry respectably, he would perhaps be doing the best thing for himself.Footnote 31
As we shall see, Ffoulkes succeeded.
Robert Owen returned to Wales, to Barmouth in the county of his birth, where he owned a small estate. As well as his book on canon law, he wrote one on the theology of saints, which he developed as an essay on the communion of the saints as ‘all the whole Church’ animated by the ‘imaginative faculty’ through which revelation penetrates the depths of humans, and the ‘judicial faculty’, ‘the common-sense and conscience of humankind’. He advocates greater freedom for the English Church to exercise these under the constraints of its establishment, greater tolerance within the Church and ‘the sacred cause of the Re-Union of Christendom’. This volume was followed by a verse book on pilgrimage.Footnote 32 His last book was a history of the Welsh, including studies on their influence, language and literature, with lists of the counterparts of Welsh vocables in French and English.Footnote 33 Owen did not marry, nor did he relinquish his holy orders, nor did he disown his former association with Jesus College, Oxford.Footnote 34 He died on Sunday 6 April 1902 and he was buried at Llanaber, Barmouth.Footnote 35
ROBERT OWEN AND HIS INSTITUTES OF CANON LAW
Ffoulkes’ intervention with Hamilton in 1867 worked. Robert Owen opens the preface to his Institutes of 1884 with:
The present work was commenced near twenty years ago at the instance of the late Bishop of Salisbury, the saintly Walter Kerr Hamilton. He complained to the writer that his clergy continually put questions to him, which ‘the faintest tincture of Canon Law’ on their part might have obviated.Footnote 36
Owen then offers the book ‘as a tribute of respect and affection to the only Anglican prelate, whose friendly regard I could in any sense claim. Whether he would have endorsed my judgments herein expressed, I cannot say’.Footnote 37 The following deals with the Institutes – its scope, thesis, purpose, topics, sources and methods.Footnote 38
Owen seeks to elucidate ‘the profitable application of the Canon Law’. He does not focus on ‘ecclesiastical law’, that is, ‘the product of legal rulings and Statute Law’; for this he exhorts us to consult Cripps and Phillimore: ‘I know nothing of it, and do not pretend to interpret the ways of the Establishment’. Rather:
My province is to call attention to the principles and rules, whereby the Catholic Church grew to maturity. If much thereof still survives in usages of the English Church, it is well. But Acts of Parliament and decisions of lawyers are not germane to the constitution of the Church of God.Footnote 39
He is therefore critical of books on English church law, which he sees as either ‘ever in humble vassalage to the Statute Law’ (naming the Codex Iuris Ecclesiastici Anglicani (1713) of Edmund Gibson) or else ‘spoilt by homely vulgarity’ (he cites A Collection of All Ecclesiastical Laws (1720) by John Johnson).Footnote 40
Owen's thesis is that the Church of England is ‘a National Church claiming to form an integral portion of the whole, that is, the Catholic Church, bound in matters of doctrine and essential discipline by the judgment’ of the latter.Footnote 41 For Owen, the establishment, ‘as the Reformation statutes have left it’ – withdrawal from communion with Rome, the royal supremacy, the legal power of Parliament in ecclesiastical matters (exercisable in consultation if appropriate with the Convocations of Canterbury and York) – means that there are insufficient matters in church life ‘formally and directly reserved for the judgment of the whole or Catholic Church’. The Church of England has become ‘an Anglican Paddock’ (a term he borrows from Gladstone), which is ‘fenced off from the field [of God] by national legislation’, and ‘the slave of the Civil Power’; in all this, ecclesiastical law is the ‘Charter of the Church's Slavery’.Footnote 42
Therefore, Owen rejects ‘Erastian doctrine, which makes the Church stand only by the law of the land and not by God's law’.Footnote 43 The establishment signifies that ‘The Providence of God has now brought the Church of England face to face with the revolution wrought by her forefathers, through the criminal supineness of the clergy, [and] the daring assumption of the laity.’ The Reformation legislation effected ‘the subjugation of the clergy to the laity in the spiritual sphere; the submission of the teachers to the taught, [and] of the pastors to their flocks’, rather than allowing ‘a return to the avowed principle of the English Reformation restoration of a decayed fabric on the lines of primitive Christianity’.Footnote 44 On the basis of the idea that establishment was destructive of the catholic character of the Church of England, he concedes that ‘many will come to feel … that Disestablishment is a necessity’; he later supported disestablishment of the Church of England in Wales (which occurred in 1920).Footnote 45 Indeed, when he discusses the rule that patrons are forbidden to present to a benefice a clerk who cannot understand and speak the language of the people, he states: ‘The neglect of it in Wales has largely contributed to the alienation of the Cymric people from the Church of England’.Footnote 46
As to purpose, Owen sees the historic study of canon law as providing an essential understanding of the constitution of the catholic Church: ‘The Canon Law is a mirror which reveals the true nature of the cleavage in our continuity with the Catholic Church, which we are now invited to perpetuate’.Footnote 47 In other words, as expressed in his Apology (1851), he suggests that ‘the English nation … be tried by the principles of the canon law’.Footnote 48 In point of fact, Owen recognises ‘no distinction of “Roman” and “English” Canon Law’. Rather, the canon law is a normative manifestation of the catholicity of the Church universal, of which the Church of England is but one part. Therefore: ‘the most part of the Roman Canon Law is merely the tradition common to both the East and West’; and so much of ‘English’ canon law – such as the mediaeval Constitutions of Papal Legates for the ‘guidance’ of English bishops – formed part of Roman canon law; so ‘the profession of Catholicity should lead us to points of union rather than of divergence’ among churches. Owen considers it is ‘a great inconvenience to attempt to set aside … Papal enactments which have been allowed … even in Protestant jurisprudence’.Footnote 49
With regard to its structure and topics, the book has 77 chapters in two parts. Part one consists of short chapters set out sequentially without subdivision, but ordered thematically on two topics: governance and ministry. First, Owen discusses sources and the nature of law and the Church: law, natural law and divine law; canonical scripture; canon law; the Catholic Church; the mystical church (Kingdom of God); and national churches (chapters 1–6). Second, he considers authority: the voice of the catholic Church (expressed, for instance, in general councils), which ‘binds’ national churches; national councils, custom, jurisdiction and coercive jurisdiction (7–13). Third comes episcopacy: its origin; the ancient primacy of Rome in Britain; metropolitans (14–21); the election, confirmation, postulation, examination, consecration and functions of diocesan bishops (22–27); bishop–clergy relations (28–33); and suffragans, archdeacons and rural deans (34–36). Fourth, the clergy are addressed: their examination, spiritual capacities, continence or celibacy, life, discipline, trial (37–43). Fifth, he studies benefices: institution; resignation; parishes; patronage; and the spiritual capacities of the laity (44–49). Then Owen addresses Church–State relations: Christian princes’ authority over a national Church; the invasion of ecclesiastical jurisdiction by the civil power; and the alliance of Church and State in England (50–52).Footnote 50 Part two is shorter: 25 chapters on rites – baptism, confirmation, Eucharist, confession, unction of the sick and marriage (1–6); consecration of times and places, worship and common prayer (7–12); property – burial, tithes and alienations (13–16); offences/sanctions – simony, heresy, schism, irregular ministrations (such as ordinations), sorcery and witchcraft, usury, excommunication in general and excommunication of rulers in particular (17–25).Footnote 51
Owen draws on a wide range of sources, both primary and secondary. The primary legal sources are used on the basis that, for him,
‘Canons’ signify the rules ordained for the government of the Church by the Holy Fathers, chiefly, of the primitive Church, who bore rule as Bishops, and met in General and Provincial Councils to decree dooms on matters of faith and discipline
and it was Justinian who decreed that the canons of the first four general councils ‘should obtain the force of Law’.Footnote 52 In turn, the ‘stream of the Canon Law’ flows through, for instance, the Apostolic Canons; the collections of Dionysius Exiguus; the Code of the Church of Rome, presented by Pope Hadrian I to Charlemagne; the ‘Greek canons, published by Bishop Beveridge with the notes of Balsamon and Zonaras’; the ‘Decretum of Gratian’; the decretals of Gregory IX; the Sext of Boniface VIII; the Clementines of Clement V; and the Extravagantes of John XXII. Owen often cites these.Footnote 53 Needless to say, such sources were also applied in England:
The fifth and sixth General Councils, supplementing the above, together with the decrees of the Roman pontiffs, the canons of many foreign Provincial Councils, if generally received and approved of, as well as those of English Provincial Councils and Constitutions of Papal Legates and of Archbishops, went to make up in England the substance of the Canon Law
and ‘That Law still operates as supplying precedents and rules, where not abrogated by solemn Acts of this Church and Realm.’Footnote 54
Owen's range of secondary sources is also impressive. He uses works of well-known mediaeval canonists, such as Panormitanus, Durandus, Guido Baysio, Hostiensis and Zabarella, and those less well-known, including Henri Bohic (c 1310–1357), Petrus de Ancharano (c 1333–1416), Filippo Franchi (d 1471) and the Byzantine canonist Balsamon (d 1195). From English canonists he cites, for example, John Ayton (1275–1348), William Lyndwood (c 1375–1446) and Edmund Gibson (1669–1748), and the legal-theological work of Herbert Thorndike (1598–1672) – of whom, ‘I know not his equal’ – Thomas Hobbes (and his De Cive (1642) on Christian rulers deferring to clergy in matters of faith) and William Beveridge, Bishop of St Asaph (1637–1708), and his Synodikon (1672) and Codex canonum ecclesiæ primitivæ (1678). Among the more modern continental writers, Owen often cites Giovanni Paolo Lancelotti (1522–1590) and his Institutiones iuris canonici (1563); Zeger-Bernard Van Espen (1646–1728), author of, inter alia, Ius ecclesiasticum universum (1753); Louis d'Héricourt (1687–1752) and his Les loix écclésiastiques de France (1771); and Dominic Schram (1722–1797), author of Institutiones juris ecclesiastici publici et privati (1774).Footnote 55
Owen uses various juristic methods – but a recurrent consideration is to uncover the reasons for the canon law,Footnote 56 often employing explanations from theology and history – and he is ever alert to divergent opinions, typically opening a discussion with: ‘On this point canonists greatly differ’, which differences he then examines.Footnote 57 First, he describes, discusses and speculates. Much of the book is purely descriptive, such as: ‘Confirmation or the Laying on of Hands, in the view of the Canon Law, is a Sacrament reserved to Bishops only; because it is regarded as the completion of Baptism’.Footnote 58 Equally, much is discursive: Owen often begins a discussion by stating a rule (footnoting its source), then discusses its meaning, presents its origins and offers reasons for it. For instance: ‘If a bishop ordains a priest … without assigning him a title for his support, he is to grant him means to live till he provides him with a benefice’ – from Canon 5 of the Fourth Lateran Council. Next he defines ‘title’ – a ‘benefice or other means of honestly supporting a clerk’. As to its origin: ‘This ordinance originated in the Council of Chalcedon, Canon 6, which annuls an ordination without a title.’ Finally he gives the reason: ‘it was intended to save the clerical order from the disgrace of mendicancy’.Footnote 59 Often, Owen's reasons for rules are speculative; for instance, using ius commune:
By common law, a bishop may not be a Canon in his own cathedral, nor assist in chapter as a Canon; for the rights of a Prelate and Canon are distinct. Where the contrary obtains, the custom was perhaps brought in to facilitate business by aid of the Prelate's experience; and therefore it is only local.Footnote 60
Second, Owen is comparative, evaluative and critical. For example, he compares the doctrine of the reception of canon law in England with that in France: ‘Papal Decretals, inserted in the body of the Canon Law, were not regarded in France save as written reason; nor observed, when contrary to the usages and liberties of the French Church.’Footnote 61 Moreover, in the Church of England:
If it be alleged that the Canon Law is out of date, as to force of law; yet must it be maintained, that, in face of the divisions that have long prevailed in the Church, that man and that Church, who order themselves by the uniform tenour [sic] of these rules, shall be those who make not, but suffer, the guilt of schism. The Appeal to Antiquity, which is the plea offered by the Anglican Church for her Reformation, is no device of the modern position.Footnote 62
Owen also identifies areas of canon law which need greater clarification. This is the case with canonical obedience, and the oath taken by clergy to obey the lawful and honest directions of their diocesan bishop: ‘Bishops are forbidden to exact oaths or engagements of obedience which ensnare the conscience’, for which he cites the Council of Châlons, Canon 13; but ‘The nature and extent of canonical obedience require authoritative explanation, so that it be not the plaything of despotic prelates or of refractory priests.’Footnote 63 As a basic criterion to be used to reform canon law, Owen shares the mediaeval opinion that: ‘the Church ought to do as a good physician; and, if a medicine upon trial doth more hurt than profit, remove it’.Footnote 64
Third, Owen is by turns rational, radical and realistic. By way of illustration, he argues that priests ought not to receive at Holy Communion those from another parish ‘if they resort to them out of contempt for their own priest. If however they have a legitimate cause, suppose he is a notorious sinner, they would not sin; because the contempt would be grounded on law.’ Indeed, ‘Parish churches should not be forsaken for a light reason … But people may always lawfully resort to the cathedral, because the bishop has the spiritual charge of all throughout his diocese.’Footnote 65 Perhaps radically for the time, after he lists ‘holy women’ in biblical passages, ‘it seems a duty to point out how the sexes meet together as equals in Christ, and build up His spiritual temple’ and so women should be consulted in spiritual matters. Also ‘a layman may, in case of necessity, baptize and hear confession’, or be the assessor of an ecclesiastical judge in a spiritual cause but not dictate a spiritual sentence in spiritual causes, and ‘a layman may exercise jurisdiction’ over clerks ‘guilty of schism’ and who ‘subvert the faith’.Footnote 66 Owen is also realistic, not least in terms of the need for deference to civil law in the areas of the proper competence of the State: ‘Names of an improper character should not be imposed on children at baptism; if it be done, it should be corrected by the bishop that confirms’ (here he cites Lyndwood); however, ‘It is obvious this cannot be done, if against the Law of the Realm’.Footnote 67
THE INSTITUTES IN CONTEXT: OTHER BOOKS ON CHURCH LAW
There are arguably five distinct periods in the historical development of English ecclesiastical law. In the mediaeval period there was a basic but limited partnership between the common law (as it touched on the ecclesiastical jurisdiction) and canon law (papal and native). The Reformation saw absorption of canon law into the ecclesiastical law of the realm (and the imposition of legal disabilities on dissenters). The Restoration heralded the rise of toleration (and the gradual lifting of dissenters’ legal disabilities). The nineteenth century witnessed the piecemeal common law development of religious freedom. The twentieth century brought the creation of a new legislative body for the established Church (by statute in 1919) and the enactment of a positive statutory right to religious freedom in the Human Rights Act 1998.Footnote 68
Secondary literature on church law across the centuries broadly reflects these periodic developments in terms of its own purposes, sources, subject matter and method. In many respects, Owen's work is very like that of mediaeval canonists (a host of whom he cites) in his topic coverage and juristic techniques (not least in his quest for reasons for laws).Footnote 69 His Institutes is like another priest-jurist, Hooker, whose Laws similarly uses an extraordinary range of scriptural, patristic, early conciliar, mediaeval canonical and theological sources to defend the Church of England as it developed at the Reformation. But Owen, whose focus is not English ecclesiastical law in that sense which includes state-made church law (though he occasionally cites statutes), is very unlike Hooker, who offers the first systematic treatment of the ecclesiastical law (but is similar to Owen in following the tradition of natural–divine law thinking).Footnote 70 For much the same reason, Owen may be contrasted with the Restoration jurist Godolphin, whose focus is the ecclesiastical law of the realm – but who, like Owen, surveys the history of English ecclesiastical jurisdiction.Footnote 71 By the late eighteenth century, books on ecclesiastical law do not focus simply on the government, ministry, doctrine, liturgy, rites and property of the Church of England; they also treat laws applicable to other churches and religions. This was the case, for example, with Burn (Owen does not do so, save to the extent that he recognises the ecumenical utility of canon law), and there are parallels between on the one hand Gibson and Burn and on the other hand Owen in their shared use of ‘maxims’ or ‘axioms’ of canon law.Footnote 72
In turn, Owen may be distinguished, if not as to topic coverage then in terms of focus and technique, from his nineteenth-century contemporaries whose works on the ecclesiastical law of the realm are more positivist, black-letter and descriptive rather than programmatic. The lawyers include: Cripps, who seeks ‘to enunciate rather than to criticise the law’;Footnote 73 Stephens, whose book (of 1,622 pages) is for use by the ‘Clerical and Legal Profession’ as ‘a practical Treatise of Clerical Law’;Footnote 74 Phillimore, whose work (1,883 pages) to elucidate the ‘general principles of the law of the Church of England’ also appeals to historical canons and statutes, and laws on ‘other churches’;Footnote 75 Whitehead, on ‘church law’, whose ‘dictionary’ of statutes, canons, regulations and decided cases, is ‘less voluminous than the great treatises on the subject’;Footnote 76 and Sturge, whose book originated in answers to clerical correspondents in the Guardian newspaper.Footnote 77 Again, Owen the cleric is more discursive, critical and theological than these lawyers, and the two other priest-jurists who may be noted here. They are Blunt, whose province is the Church of England, as ‘governed by a system of jurisprudence made of: Common Law; Canon Law; and the Statute Law’;Footnote 78 and Lacey, who seeks ‘to state the principles underlying the practice of Church Law’ for those ‘in the administration of the Church’ and writes:
I have tried to keep to my subject, not invading the province of the moralist or of the ritualist. The question for me is not what ought to be done with an approving conscience, but what is required or allowed to be done. The conscience may demand much more, or may forbid…what is in itself lawful.Footnote 79
Owen may not have approved – but that is another story.Footnote 80
CONCLUSION
Robert Owen is one in a class of individuals thus far largely neglected in modern scholarship on those who have contributed to the intellectual development of church law in Anglicanism: the priest-jurists. Owen followed the academic path of so many others from Wales in the nineteenth century, to Jesus College, Oxford, where, aside from ordination and a curacy, for 26 years he was engaged as a student and then as a fellow; according to the college records, he discharged his duties and offices conscientiously and productively, publishing a notable work on dogmatic theology. It was in the decade 1844–1854 that he seems to have developed his interest in canon law, shaped by his own experience of and loyalty to the High Church movement. His resignation as fellow – and, in the absence of hard evidence, one must speculate about the details of the ‘serious improprieties of conduct’ which stimulated this – has, however, resulted in a great benefit to canonical learning, also made possible in part by the sympathy he received from his former ‘brother-fellow’ Ffoulkes and the kindness of Bishop Hamilton. Owen's Institutes of Canon Law was indeed a product of his time in the sense that it was driven from within the Oxford Movement by his conviction that the Church of England was increasingly becoming an ‘Act of Parliament Church’ to the detriment of its catholicity. Nevertheless, the book deserves closer inspection as a lesson in the juristic analysis of canon law in terms of stating the rule, identifying its authority, explaining its origin, elucidating its reasons and evaluating its utility. Owen's work also has something of a prophetic character, not just in its sense of the disestablishment of the Church of England in Wales, which was to come 18 years after he died, but, above all, in its original, unique and scholarly use of the historic canon law as a measure of the catholicity of ecclesial life and its unifying potential as an instrument of ecumenical endeavour for more visible Christian unity.
