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Whom Did Churchill Regard as History’s Greatest Law-Giver?
- By RICHARD M. LANGWORTH
- | March 25, 2022
- Category: Q & A The Literary Churchill
Q: Churchill’s Term “Law-Giver”
I read with interest “‘Law-Giver’ Mussolini: Churchill’s Quotation as Used and Abused.” You make a good case for Churchill issuing this bouquet to Mussolini when Italy was repaying her war debt. But that leads me to ask: Whom did Churchill seriously regard as history’s great Law-Givers? —J.M., Ohio
That is a good question, and not likely to come up anywhere else. It is worth considering for the insight it offers into Churchill as stateman and historian.
A: Henry II, Common Law and Trial by Jury
Among the English, Churchill’s accolade “Law-Giver” fell first on King Henry II (reigned 1154-1189). There were “greater soldier-kings and subtler diplomatists,” Churchill wrote, but no man has left a deeper mark upon our laws and institutions…. The names of his battles have vanished with their dust, but his fame will live with the English Constitution and the English Common Law.”1
In England’s unwritten Constitution, Churchill continued, “the limits of the King’s traditional rights were vaguely defined. This opened a shrewd line of advance.” The result was “a startling new procedure—trial by jury….
Henry did not invent the jury; he put it to a new purpose [and] turned to regular use in the courts an instrument which so far had only been used for administrative purposes…. The jury system has come to stand for all we mean by English justice, because so long as a case has to be scrutinised by twelve honest men, defendant and plaintiff alike have a safeguard from arbitrary perversion of the law.2
This slow but continuous growth of what is popularly known as “case law” ultimately achieved much the same freedoms and rights for the individual as are enshrined in other countries by written instruments such as the Declaration of the Rights of Man and the spacious and splendid provisions of the American Declaration of Independence…. Both sovereign and subject were in practice bound by the Common Law, and the liberties of Englishmen rested not on any enactment of the State, but on immemorial slow-growing custom declared by juries of free men who gave their verdicts case by case in open court.3
Edward I: “Conception of the State”
Churchill’s next great English Law-Giver was King Edward I (reigned 1272-1307), who, “destroyed the absolute control of the barons over their tenants….
As a national king, he demanded direct knight-service in war, irrespective of feudal obligations to the immediate overlord. He curbed the Church and her courts. He made an ally of the merchant class, and had a keen eye for the encouragement of trade. Edward’s conception of the State was based on the cooperation of the three Estates, the barons, the clergy and the Commons of England, on respect for their legal rights, and a firm suppression of mutual infringements. The representative system of the Estates was developed as a permanent national institution. That path was found between despotism and anarchy which England has made characteristically her own. The prime impulse along this narrow but sure way she owes to Edward I, the greatest law-giver since Henry II, the greatest parliamentarian until Henry VIII.4
Moses: “Leader of a People”
For Churchill, the greatest of all Law-Givers was not British and lived many centuries before those early Kings:
“And there arose not a prophet since in Israel like unto Moses, whom the Lord knew face to face. In all the signs and the wonders, which the Lord sent him to do in the land of Egypt to Pharaoh, and to all his servants, and to all his land, and in all that mighty hand, and in all the great terror which Moses shewed in the sight of all Israel.”
These closing words of the Book of Deuteronomy are an apt expression of the esteem in which the great leader and liberator of the Hebrew people was held by the generations that succeeded him. He was the greatest of the prophets, who spoke in person to the God of Israel; he was the national hero who led the Chosen People out of the land of bondage, through the perils of the wilderness, and brought them to the very threshold of the Promised Land; he was the supreme Law-Giver, who received from God that remarkable code upon which the religious, moral, and social life of the nation was so securely founded. Tradition lastly ascribed to him the authorship of the whole Pentateuch, and the mystery that surrounded his death added to his prestige.5
Churchill’s view never altered. In his last years, he had a visit from David Ben-Gurion, and they debated who was the greatest prophet. Ben-Gurion argued for Jesus, Churchill for Moses. Sir Winston’s private secretary was the only audience; he declared the result a tie. (This must go down as one of the great unrecorded conversations.)
We hope this answers your question, and distinguishes Churchill’s concept of the true Law-Givers from the throw-away line he bestowed briefly on Mussolini.
Endnotes
1 Winston S. Churchill (hereinafter WSC), History of the English-Speaking Peoples, vol. 1, The Birth of Britain (New York: Dodd Mead, 1956), 215
2 Ibid., 216-19.
3 Ibid., 225.
4 WSC, “The Great Reigns, Part 3: Edward I,” in the Evening Standard, 28 April 1937, reprinted in The Collected Essays of Sir Winston Churchill, 4 vols. (London: Library of Imperial History, 1975), III: 287.
5 WSC, “Moses,” in the Sunday Chronicle, 8 November 1931, reprinted in Thoughts and Adventures (1932; London: Leo Cooper, 1992), 205.
Further Reading
WSC, “Henry Plantagenet,” The English Common Law,” “King Edward I,” Chapters XII, XIII and XVIII in Book Two, The Birth of Britain (1956).
WSC, “Moses: The Leader of a People,” in Thoughts and Adventures (1932).