Church Courts Research Articles

Juristic Theology in More’s Polemics: The Bilney Case

Thomas More built his opposition to reform on a foundation of canon law because he believed the offenses of the reformers fell within the spiritual jurisdiction rather than the temporal; that these offenses were by right adjudicated in the church courts, not the Crown courts; and that the supreme authority in cases of unlawful theological innovation was not that of English kings but that of popes and councils. This paper’s argument is that the canonical system that served as More’s defense against innovation was created in the eleventh and twelfth centuries. This was the era of Gregorian reform, of Gratian’s Decretum, and of the phenomenon known as juristic theology. The main premise of juristic theology, that no region of the soul is exempt from legal judgment, is present in More’s critical analysis of the trial of Thomas Bilney in A Dialogue concerning Heresies.

Interdiecézní soudy na území ČR

In this article I first outline the general issues and the legal foundation of the Interdiocesan church courts which were founded in the 20th century as a legal instrument for the accessible exercise of the judicial power of the Church. I then deal with issues related to the activities of such courts in the Czech Republic. Both courts were created due to the lack of competent judges available to fulfil the staffing needs of first instance courts in each diocese, as canon law dictates. The Interdiocesan church tribunal Prague was founded in 1982 with its activity lasting until 2009 when the newly established diocesan courts in Hradec Kralove, Plzeň and Prague became Metropolitan courts for the diocese of Prague, Ceske Budějovice and Litoměřice. The Interdiocesan church tribunal Olomouc was established in 1997 for the diocese of Olomouc, Ostrava and Opava and has continued up to the present time.

Some modern ethical dilemmas regarding the use of the Hippocratic oath

History of the mankind knows different oaths, which in their original forms, or somewhat modernized, have survived strict church courts, absolutist monarchy, despotic regimes, but even survived the people themselves. Beside the Hippocratic Oath, which, it seems, is the most durable and most disputed, we also know for: oath of office ,the oath for citizenship, the oath which we take 'under the penalty of criminal, civil and moral laws.' However, the subject of our discussion will be only the first-mentioned Hippocratic oath, because of the numerous controversies caused for centuries in terms of its origin, authorship, authenticity on the one hand, and its importance while entering the medical profession, on the other hand.

Výkon soudní moci v olomoucké arcidiecézi v letech 1917-1948

This article deals with issues related to the activities of the ecclesiastical court in Olomouc in the canonic¬-legal, historical, religious¬-political context over the years 1917-1948. The Ecclesiastical Court is the institution through which the diocesan bishop (in this case, the Archbishop of Olomouc) habitually carries out his judicial power. Judicial power is this part of the power of governance in the Church by which the rights of physical or juridic persons are vindicated, juridic facts are declared and the penalty for delicts are imposed or declared. The judicial power, which judges judicial trials, must therefore be exercised in the manner prescribed by the law. The most frequent causes, which are decided by the ecclesiastical court of the diocese, consist of marriage trials. The Church court of Olomouc underwent numerous changes over the period of its existence which reflected not only the legislative changes in the Church, but also the actual situation within the Bohemian and Moravian Church at this time. The article summarizes not only the execution of the judicial power of the Church in general, but also the personal situation at the court. Tracing the individual types of the cases is more difficult because many archival materials have not been preserved.

Devising, Dying and Dispute: Probate Litigation in Early Modern England, by Lloyd Bonfield

This is a social and administrative history of the law, written by a well-regarded legal historian. Its principal strength lies in the exceptional clarity and precision with which the author, Lloyd Bonfield, sets out the letter and logic of the law and the workings of a senior ecclesiastical court. Its main contribution is to offer a comprehensive study of early modern probate litigation and an analysis of an important arena in which law and social practice interacted. Bonfield explores and explains 184 disputed probate cases heard before the Prerogative Court of Canterbury, one of the two ‘provincial’ church courts in England, between 1660 and 1700. Those whose affairs were settled in this court were typically the better-off or testators who had property in more than one diocese. Its case records are much richer than those, generated by the lower church courts, which most social historians have used. Part I is an institutional and legal history, dealing with probate jurisdiction, the church courts, and the nature of testamentary litigation; it should be read with the appendix at pp. 247–59. Thereafter the book ranges widely over topics that will interest historians in a number of fields. For example, it discusses the nature and significance of both orality and literacy, since wills could be rendered verbally as well as in writing. The practices and problems of courts also fed into political processes, and Bonfield speculates that legal difficulties over probate may help to explain the ‘Statute of Frauds’ (29 Chas. 2 c. 3), though he shows its limited practical influence on probate practices—and the slow pace of legal change in early modern England. Throughout there are thoughtful discussions of the nature and transfer of property. Judges favoured ‘individualism’, yet at the same time their decisions were tempered by considerations of ‘conscience’ that took into account the wider implications of their judgements. Bonfield is closely interested in judicial process, emphasising how the malleability of probate law opened up considerable freedom for judges. The hybrid ecclesiastical law (actually bastardised civil law) that emerged in the middle ages to govern areas such as succession and probate, and which endured until the mid-nineteenth century, was less rigid than common law in validating documents doubtful in form, provided the intention of the framer was sufficiently clear.

The Evidence for Early Seventeenth-Century Climate from Scottish Ecclesiastical Records

Abstract This article argues that the records kept by Scottish church courts in the early modern period provide a rich and untapped source of information on historical weather patterns. This is primarily because severe weather events caused disruption to court meetings, and the nature of the records means that fluctuations in weather can potentially be traced across a wide geographical range and for long periods of time. Based on a sample of records from 1615-25, a period which included a known severe weather event, the flooding of Perth in 1621, the article provides quantitative and qualitative analysis of weather trends, drawing particular attention to an extended period of severe weather from 1619-22, of which the flooding of Perth was a part. It also identifies periods that witnessed much less severe weather and identifies important regional variations in weather patterns which emerge from the study of church court records, in contrast to more traditional sources such as diaries and chronicles. The article thus demonstrates the value of this new methodology for climate history and points the way forward to future studies.

The Rhetoric of Homosexual Practice

Many Protestant denominations have or recently had policies that prohibit “self-avowed practicing homosexuals” from being ordained. By only prohibiting “practicing” homosexuals, proponents of these policies claim that they do not discriminate against homosexuals as a group since, technically, a homosexual can still be ordained as long as she is “non-practicing.” In other words, a condemnation of homosexual practice is not the same as a condemnation of homosexual persons. I argue that this is not the case; the rhetoric of homosexual practice does, in fact, amount to a condemnation of gays and lesbians. It does so by conflating the two things it claims to keep separate—homosexual conduct and homosexual identity. I demonstrate this conflation by analyzing the history of this rhetoric and how it has been adjudicated in church court decisions from the United Methodist Church and the Presbyterian Church (USA).

Devising, Dying and Dispute: Probate Litigation in Early Modern England, by Lloyd Bonfield

Devising, Dying and Dispute: Probate Litigation in Early Modern England, by Lloyd Bonfield. Burlington, Vermont, Ashgate Publishing, 2012. xvi, 293 pp. $119.95 US (cloth). Few people currently think to turn to the wills, allegations, depositions, and sentences associated with the PCC and housed in the mighty National Archives for stories of marriages gone bad, prodigal sons, and cheating servants, but tales of familiar discord is just one tale that Lloyd Bonfield's Devising, Dying and Dispute seeks to tell. The other is a legal examination of the reasons behind the tightening up of will-making requirements, and particularly the effect that the Statute of Fraud (1677) had on the process. Bonfield more successfully engages with the law than with the family, but has nonetheless alerted us to the virtually unexplored and important source of social history, offering tantalizing glimpses of the stories that lie within. Bonfield grounds his three-part volume with introductory chapters on the culture of will-making. He describes a messy world that generated competing copies of single wills, multiple and antagonistic executors, questionable legacies, and a legal environment that placed the burden of sorting out fact from fiction on the judge. The two chapters of Part I clearly and succinctly set out the distinctive history of English will-making and its place in the Church Courts, the Statute of Frauds, and an overview of reasons behind testamentary litigation (uncontested probates and issues of mental capacity and coercion tie for the lead). Bonfield next outlines his hypothesis that frames two-thirds of the book: Was the Statute of Frauds adopted to decrease the level of litigation? If so, it only worked in decreasing the number of contested oral wills. Bonfield writes about legal issues with a simple and clear prose style that highlights the relevancy of 300-year-old legislation for today's world, as well as making quite technical aspects of the law understandable for those in other fields. The second section is a fascinating and careful exploration of issues of mental capacity and coercion, particularly surrounding nuncupative wills. It is here that Bonfield's fine legal mind shines. Even with advanced estate planning, last minute changes to a will could raise a slew of questions surrounding the testator's true intent, and it is here that we begin to see the less scrupuless side of human behaviour, as weak and dying individuals were subjected to manipulation and fraud. Bonfield's discussion of the legal understanding of mental incapacity has important implication for our understanding of growing old, as well as an appreciation of what was at stake for friends and family. The book's final section is at once its weakest and most exciting part. Entitled Windows into Social Relationships, the final three chapters seek to explore the dynamics of family relations and enigmatic human conduct (p. 177). Chapter eight explores the issue of how to prove a valid marriage, a particularly vexing problem for judges in the face of multiple claimants for the role of surviving spouse. …

The problem of “legal bigamy” in the light of the rulings of the District Court in Poznan

The purpose of the paper is to present the problem of so-called “legal bigamy” in the light of the rulings of the District Court in Poznan. The marriage law regulations in The Second Polish Republic were completely different in various parts of the country and attempts to unify them failed. This situation caused significant problems: for example, many civil courts refused to recognize some of the divorce judgments issued by church courts in the former Russian partition because of their improper jurisdiction. The paper focuses on two matrimonial cases that were ruled upon by the District Court in Poznan. In both cases the District Court in Poznan was to decide whether divorce judgments issued by the church court of the Polish Orthodox Church in Warsaw were also binding in the former Prussian district.

Remembering usurpation: the common lawyers, Reformation narratives and the prerogative, 1578-1616

In a number of historical accounts Sir Edward Coke and other lawyers claimed that the common law had been a bulwark against popish encroachment prior to the Reformation. Anxiety over a renewal of clerical usurpation and a desire to preserve royal authority continued to inform their attitudes to the reformed English church courts. Although the common lawyers who wrote these histories shared several underlying assumptions, they nonetheless reached very different conclusions. By exposing these divisions and explaining common law attitudes towards the church courts and the prerogative, this article challenges received views on the ‘common law mind’.

Getting Along? Religious Identities and Confessional Relations in Early Modern England—Essays in Honour of Professor W. J. Sheils ed. by Nadine Lewycky and Adam Morton (review)

Reviewed by: Getting Along? Religious Identities and Confessional Relations in Early Modern England—Essays in Honour of Professor W. J. Sheils ed. by Nadine Lewycky and Adam Morton Michael Questier Getting Along? Religious Identities and Confessional Relations in Early Modern England—Essays in Honour of Professor W. J. Sheils. Edited by Nadine Lewycky and Adam Morton. [St. Andrews Studies in Reformation History.] (Burlington, VT: Ashgate Publishing. 2012. Pp. xiii, 250. $124.95. ISBN 978-1-4094-0089-9.) Quite unusually for a Festschrift, this set of essays really has something to do with the body of work of the person whose career is being celebrated. William Sheils, in the later part of his œuvre, was noted in particular for probing, as he put it, the “ecumenicity of the everyday.” Most of these pieces look at aspects of where the everyday took precedence over and trumped the polemical divisions which defined post–Reformation English politics. This, of course, has been a topic of some significance in recent times because of some scholars’ continuing interest in how one narrates the rise of a tolerant mind-set, i.e., as the state became less inclined to persecute people for their religious beliefs. It is certainly possible to show that successive regimes in this period frequently did not go after people purely because they held this or that view about doctrine. So the capacity for people to “get along” should not actually be all that surprising; except, of course, that there were so many occasions when they did not. [End Page 364] So thoughtful, and really very accomplished, is the introduction (forcefully reminding the reader how recent postgraduates still are the future of the profession) and so well assembled are the essays that it is difficult in the space of a short review to do justice to them all. Alexandra Walsham reprises the literature of practical tolerance among the godly. The claim is that reformed/evangelical Protestantism in this period had a considerable capacity for socialization. There is a sense that, all the way through the period, with a theological and ecclesiological arm, Starbucks could have done well even in the godlier parts of country. Peter Marshall produces a cutting-edge essay on one of the more problematical issues of the period, the question of how Catholics who were urged to separate themselves from their local parish and all its ungodliness could end up in the churchyard even while the parochial authorities sometimes tried to keep them out. Robert Swanson’s “Fissures in the Bedrock” looks at how far the more confessionally explicit difficulties after the Reformation had their analogues in the period before it—a useful reminder for historians of the Reformation who tend to think that the world starts in 1558 or 1533. Emma Watson has a chapter on the continuing efficiency of the church courts and concludes that “both before and after the Reformation, clergymen were accountable to their congregations” (pp. 113–14). The source base for the essay reminds us that there is so much more mileage for PhD students in the under-used church court records of this period. Andrew Cambers has a brilliant piece on the circulation of libels in Northampton, a worthy addition to the trail blazed in the recent past by Alastair Bellany. This refers back also to Sheils’s work on Northamptonshire Puritanism—one bookend of his career, as it were. The article is in fact about the two libels that John Lambe denounced in Star Chamber in 1607 as part of a conformist attempt to “out” Northamptonshire Puritans and is really interesting, because it reveals a coterie of conformists and future Laudians there; this is, of course, slightly against the grain of the volume, as these people were definitely not getting along. Rosamund Oates’s contribution reviews the Challenge controversy and says, basically, that polemicists could not do anything to (re)confessionalize the calendar. Peter Lake weighs in with a typically nuanced reading of the play Sir John Oldcastle. Part of his recent long-term project is to work out the historical context for what London theatergoers were watching in the late-Elizabethan period. This play reverses the tropes and assumptions of Shakespeare’s...

CECILIA CRISTELLON. La carita e l'eros: Il matrimonio, la Chiesa, i suoi giudici nella Venezia del Rinascimento (1420-1545).

Cecilia Cristellon's study looks at marriage disputes in the church court at Venice and is based on sources in the Archivio della Curia patriarchale. The appendix provides a quantitative analysis of 750 cases dealing with annulments, separations, and the validity of marriages. The book also compares the Venetian evidence with the international historiography on marriage disputes in the Renaissance era. Cristellon emphasizes judicial procedure, whereas earlier writers have focused on the “story” aspect of different cases, taking them out of their judicial context. She maintains, with justification, that concentrating on procedure has allowed her to include revealing dialogues among judge, petitioner, and the socially varied witnesses. For example, Cristellon includes a four-page transcription of a case in which the man claimed that a marriage had taken place and been consummated while the young girl denied it, an insert that allows the reader to visualize the way cases proceeded (pp. 69 ff).

JUDICIAL REVIEW AND CHURCH COURTS IN THE LAW OF SCOTLAND

JUDICIAL REVIEW AND CHURCH COURTS IN THE LAW OF SCOTLAND

Social Representations of Memory and Gender in Later Medieval England

Social representations in later medieval culture have attracted little attention amongst psychologists, pre-dating the development of the so-called 'public sphere' in the eighteenth century. In addition, the association of pre-modern societies with 'traditional' modes of communication in social psychology places implicit limits on areas that may be studied through the lens of social representation theory. This article analyses the way in which knowledge circulated in late medieval society, noting initially the plural nature of representations of events and marginal groups, and the myriad channels through which beliefs were consolidated. In later medieval England perceptions of the past depended on collective and group memory, with customary rights and local histories forged through 'common knowledge', hearsay and the opinions of 'trustworthy men' of the village. The final section of this commentary provides an analysis of testimony from the late medieval church courts, in which witnesses articulated gender ideologies that reflected perceptions drawn from everyday life. Social representations of women were thus deployed in ecclesiastical suits, on the one hand supporting evidence of female witnesses and on the other justifying misogynistic stereotypes of women's behaviour.

Canon Law and Theology

The relation of religious law to theology is basic to any faith community. In this article, chiefly in terms of Roman Catholicism, but it is hoped of wider application especially within Christianity, the relation of canon law to theology is examined through papal allocutions to the judges and other members of the Church court known as the Roman Rota. There are significant British links to the Rota before and after the Reformation. The 2009 allocution by Benedict XVI is the focus for considering the theological and normative authority of such allocutions. Pius XII has been one of the few canonists to become Pope in modern times, and the co-ordinated set of allocutions from 1945 to 1949 given by him to the Rota is therefore taken as the focus for reflecting on the nature and functions of canon law today. This involves the consideration of both theology and law, including secular law. The ecclesiological character of canon law will emerge as central.

A Canon Lawyer's Compilation from Fifteenth-Century Yorkshire

The numerous surviving formulary volumes compiled by ecclesiastical administrators and lawyers in pre-Reformation England are valuable but neglected adjuncts to the period's surviving church court records. Using material in a fifteenth-century volume originally compiled by a lawyer of the courts at York, this article demonstrates the utility of such volumes to supplement and complement the surviving court books and papers. In particular it draws attention to two cases taken to the Council of Constance. These add to evidence of England's acceptance of that assembly's jurisdictional claims, and illustrate England's integration into the court structures of the broader Catholic Church.

Muscovite Law on Monasteries

The author surveys Muscovite law regulating monasteries, focusing on which courts exercised jurisdiction over monasteries and the legal right to appoint or remove superiors of monasteries. Throughout the Muscovite period secular courts had jurisdiction over lawsuits involving claims to land brought by or against monasteries, and this jurisdiction was confirmed in the 1550 Sudebnik. Lawsuits involving “spiritual matters” were heard by church courts, and the Stoglav confirmed the church courts’ jurisdiction over lawsuits brought by laymen against monastic personnel. The Stoglav also gave the tsar a veto over the appointment of monastic superiors, but many secular officials, prelates and the brothers themselves had influence and authority over the choice of a candidate. While the Stoglav and actual practice required that the brothers obey the superior, there is much evidence that in the management of monasteries the superior sought the consensus of his council of elders. Chapter 13 of the 1649 Ulozhenie constituted a major change in the law. It confided jurisdiction over lawsuits against monasteries and their personnel to a state chancellery staffed by lay judges. The 1666-1667 Church Council, however, restored the jurisdiction of church courts to where it had been prior to 1649. Although the law was unstable throughout the Muscovite period, the monasteries continued to exercise some measure of legal autonomy from the state.

Get Dr Clague. Dr John Clague as Collector of Manx Charms

Dr John Clague (1842–1908) was a medical practitioner in the Isle of Man as well as a folklore and folk song collector. His mother was a herbal healer as was Clague before commencing his medical studies. Clague’s posthumously published reminiscences in 1911 contain the largest collection of charms (13) published to date as well as details of his encounters with charmers and healers during his rounds. Published with facing pages of Manx Gaelic and English (the two languages of the Island in this period) the question arises as to which language the charms were originally collected in. Surviving is a manuscript notebook containing texts of six of the charms; two others are known in Manx from earlier church court records. Clague’s collecting does not exhaust the material for the Island. There is one other contemporary collector, namely Sophia Morrison, whose manuscript material remains inedited and unpublished. Other material that remains to be examined are the printed and manuscript collections of the Manx National Heritage Library, especially the Manx Museum Folk-Life Survey. It is hoped that all this material can be gathered together at some date in a charm catalogue allowing its use by the wider community of charm scholars.

The Regulation of Sexuality in the Late Middle Ages: England and France

Marital and family structures, together with the closely related areas of gender relations and attitudes to sexuality, constitute one area in which scholars have suggested medieval England clearly differs from other regions. It is always difficult to compare across regions when the nature of the evidence differs; but because marriage and sexual behavior were under the jurisdiction of the church courts and because the ecclesiastical court system used the same set of legal rules across Europe, one level of difficulty disappears from a comparison. Records from different regions reflect somewhat different procedures or penalties, based on local synodal statutes, but are more commensurable than records of the secular courts, which did not depend on a common set of rules. Basic principles of canon law were universally accepted in western Christendom: marriage was formed by the consent of the parties; marital promises followed by sexual intercourse created an indissoluble marriage; and any extramarital sexual activity by either a husband or a wife was adultery. An examination of church court records from late-medieval Paris compared with better-known records from England suggests that differences between England and northern France in the understanding of sexual behavior and the formation of unions, while they reflect different approaches, were still addressing fundamentally the same issues, and the demographic patterns may not have been as different as scholars have assumed.

‘The Enemy of God and His Church’: James Hobart, Praemunire, and the Clergy of Norwich Diocese

Praemunire was the offence of undermining royal authority. Despite its antipapal origins, by 1500 praemunire was being used to inhibit the exercise of ecclesiastical jurisdiction within England. Notorious from 1529 as a royal instrument for intimidating the clergy, praemunire was already contentious at the beginning of the sixteenth century. Historians of the common law have identified a growing number of praemunire cases in these years; at the same time, ecclesiastical historians have detected a decline in the business of most church courts. A causal relationship has often been assumed, but not examined in the manner attempted here. A spate of praemunire cases within his diocese provoked from Bishop Nykke of Norwich a famous letter of complaint, in which he censured the attorney-general Sir James Hobart. This article examines the praemunire cases to which Nykke referred and also Hobart's role in promoting them. The interaction between church and common law courts and between their personnel and litigants is explored. New light is shed on relations between leading churchmen and common lawyers and also on the Crown's attitude to praemunire. The evidence presented deepens our understanding of the decline of ecclesiastical jurisdiction in this period.