Mirror of Justice

As I mentioned in my last post of December 24, I am working my way through Jessie Child’s God’s Traitors: Terror and Faith in Elizabethan England. Yesterday, I came across a reference in the Child’s book to an interesting but ominous statute enacted by Parliament in 1585 [27 Eliz. c. 2] severely regulating—by means of prosecutions for high treason, the imposition of onerous fines, the legal device of praemunire, and other mechanisms—the presence and apostolic work of Jesuits and other Catholic clergy trained elsewhere in Europe, along with “such other like disobedient Persons,” for “stir[ring] up and mov[ing] sedition, rebellion, and open hostility” within Elizabeth’s realm. [the English of the statute has been modernized] A digital copy of this legislation is HERE:  Download 27 Elizabeth c. 2. The title of this Act is duplicated in the subject line of this posting.

Upon reading the Elizabethan legislation dealing with Jesuits and other “papists”, I considered whether there may be parallels in which legislators and interest groups of today propose laws and regulations that have similar effects on the practice of the Catholic faith in the US and the other western democracies. This may be an item which those attending the Lumen Christi/Christian Law Professors Fellowship event that overlaps with the upcoming AALS conference being convened in our nation’s capital may wish to explore given the importance of libertas ecclesiae to many members of the mentioned gathering.

A major objective of the Elizabethan legislation was to compel the realm’s subjects to conform to the previous laws making the sovereign the supreme head of the church in England and to observe scrupulously other laws regulating religious belief and practices (practices including not only private devotion but also religious exercises in public life). Within the context of this goal, an underlying objective was to eradicate any element of “popery” involving any practice of the Catholic faith that would include the education of young persons. In reflecting upon the legal developments of the present age having an impact on any aspect of religious freedom (a topic frequently addressed by contributors to the Mirror of Justice), I think it vital to consider how the practice of Catholicism in the public square today, which includes the enterprise of education that employs the modifier “Catholic,” has been adversely affected by ongoing legal developments in the US and other democracies, e.g., what must be taught in Catholic schools of any level; what activities the faithful and their clergy can pursue in public life; what can be expressed from any pulpit that some may consider “hateful” and, therefore, prosecutable statements; the degree to which religious persons may engage in any aspect of public life (especially the right of free expression of ideas related to the common good) as urged by Catholic teaching.

The Elizabethan legislation gave several outs from prosecution for those who might otherwise be subjected to the statute’s enforcement. The first was to leave the jurisdiction “if the Winde Weather and Passage shall serve the same”. Thank goodness for the cooperation of the mercurial nature of the weather and tides! Another way to avoid prosecution and forfeiture of all possessions was to conform to the state religion where the temporal sovereign is the self-declared “supreme head”. But these “options” were as odious to English Catholics of the Elizabethan era as they would be to many of us today.

I would like to emphasize the portion of the Elizabethan statute that attempted to control education in such a fashion that only state-sanctioned education—which would of course undermine the competence of Catholic authorities and the presence of Catholic teaching—could be made available. An initial point about this element of the statute meriting attention is the will to control what is taught and what is forbidden to be taught. This was not simply a problem for Elizabethan times; it is of major concern today when Catholic institutions are pressured in some form or other to suppress the Catholic perspective and teachings or face the consequences that the regulators will decide. I can recall being present at faculty-appointments meetings where the suitability or unsuitability of candidates for teaching posts was discussed and where anyone “too Catholic” would likely be removed from further employment consideration. Another point worth considering here is what role, if any, do Catholic and Christian teachers of the law have in those matters dealing with the tack of curriculum development and the approaches to how substantive matters are to be taught? Clearly those of us who have taught law or continue to do so have many occasions to form intellectually and virtuously future lawyers, judges, legislators, regulators, and citizens so that laws concerning the authentic freedom of religion will not duplicate the grave harms present in the Elizabethan statute. Might we take a moment as we plan our instruction to consider the prophetic words of George Santayana: those who do not remember the past are condemned to repeat it?

Perhaps the words of Christopher Dawson, an Englishman and convert to Catholicism, might further inspire legal educators who consider themselves Catholic and Christian as they pursue their duty: “if Christians cannot assert their right to exist in the sphere of higher education [or any sphere, for that matter], they will eventually be pushed not only out of modern culture but out of physical existence.” Dawson further noted that his warning applied not only to those who live in totalitarian systems but also to those who live in the realms of the great western democracies.

As teachers of the law, we have an obligation to remind anyone with whom we come in contact about the dangers of the past that threatened libertas ecclesiae. If we do not, let us not look for scapegoats when we are condemned to repeat and experience these perils.

RJA sj