Excerpted from “Whom Did Churchill Regard as History’s Greatest Law-Giver?,” written for the Hillsdale College Churchill Project, March 2022. For the original text with endnotes please click here. To subscribe to posts by the Hillsdale Churchill Project, click here, scroll to bottom, and fill in your email in the box entitled “Stay in touch with us.” Your email address remains private.
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…. his fame will live with the English Constitution and the English Common Law.”
England’s unwritten Constitution, Churchill continued, vaguely defined “the limits of the King’s traditional rights…. 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….
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.
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…. 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….
Moses: “Leader of a People”
For Churchill, the greatest of all Law Givers lived many centuries before those English 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.”
[Moses] 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,,,, Tradition lastly ascribed to him the authorship of the whole Pentateuch, and the mystery that surrounded his death added to his prestige.
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.)