Ecclesiastical Courts Research Articles

Deviance or Devotion: Women Dressed as Men in Late Medieval England

On the 18th September 1417, Matilda Burgin and Margaret Usshar were brought before the ecclesiastical court of the Bishop of Durham for attempting to enter Durham Cathedral in order to approach the shrine of St Cuthbert from which women were banned. So to enter, they put on masculine clothing and for these crimes they were punished with the public humiliation of wearing the offending clothing in full view of their community. This article will first examine the case of Matilda and Margaret, their arrest in Durham Cathedral and the social, spiritual and sartorial consequences of their very public punishment. It will then compare their experience with that of other medieval women and gender non-conforming people who were arrested in masculine dress. Finally, this article will examine the possible influence the popular religious literature of cross-dressing saints may have had on Matilda and Margaret. This article will ask whether Matilda and Margaret’s own personal devotion to St Cuthbert drove them to put on masculine clothing to see his shrine? Or was it a disdain for the gendered segregation upheld by the Bishop of Durham and a disobedience of the command of St Cuthbert? Or something else entirely.

Prawo małżeńskie osobowe Drugiej Rzeczypospolitej na ziemiach wschodnich dawnego zaboru rosyjskiego

The article describes the problems facing the marriage law in the eastern parts of the Second Polish Republic. These issues are mainly due to the lack of codification of matrimonial law throughout the territory of the Republic of Poland and the fact that exclusively civil jurisdiction in matrimonial matters was not implemented, as it was envisaged in Lutostański’s proposal. The decisions of ecclesiastical courts led to the creation of substantially invalid marriages and the spreading of legal bigamy. Failure to observe state regulations concerning the jurisdiction of ecclesiastical courts in dissolution or nullity cases, as well as mutual non-recognition of judgments of the ecclesiastical courts contributed to the creation of areas called “divorce meccas”. These designations referred to the Eastern Orthodox and Calvinist Church existing in the eastern territories of the Second Polish Republic. Taking into account the above, the article is intended to compare factors destabilising marriage law in the areas in question. To analyze this issue, primarily the historical and legal method was used.

A kötelékvédő szerepének változásai az egyházjogban, kitekintéssel a magyar világi perjogra

The defender of the bond is one of the most important officials at the ecclesiastical courts. In this paper I examine the changes of this office both in canonical legislation and in jurisdictional practise (and in Hungarian private law). I present the practise of the holy see of Veszprém and Székesfehérvár in matrimonial cases in the 19th and 20th century.

Bűn és büntetés a középkori egyházban

The medieval Latin Church had a very clear and elaborate theory of human sin and the punishment that was necessarily associated with it. This complex thought can be summarised in two main theories: theological theory and canon law, which can be particularly well illustrated by means of case law, i.e. the activity of the ecclesiastical courts. In the following overview, I will present the legal basis and purpose of punishment, as well as the types of punishment, based on the theological views of Thomas Aquinas on the one hand, and on the sources of medieval canon law on the other, illustrated with examples from canonical jurisdiction.

Dva notářské instrumenty z roku 1419 k dějinám řeholních kanovníků sv. Augustina v Kladsku. Pramenná edice

During the 14th century, canon law gained considerable influence. All cases which related to clergy and Church property were dealt with solely by the ecclesiastical courts. During the preparatory phases of court proceedings, public notaries were very important. They were mainly involved in appointing legal representatives and producing verified copies of important documents. The objective of this article is to present two notarial instruments produced by public notaries: Materna, the son of Doctor Martin of Kladsko, and Nicolas, called Naso, the son of Henry of Chojnów. Both instruments were produced in 1419 and relate to the monastery of the Canons Regular of St. Augustine in Kladsko. The documents are kept in the Kladsko parish archive under numbers A 4 b and A 12 i. Attached is a critical edition of both notarial instruments. The first instrument incorporates documents of Wenceslas IV, King of Bohemia, Charles IV, King of Bohemia, and Arnošt of Pardubice, Archbishop of Prague, which show the ownership of properties in the Kladsko region and outside it. The second instrument records the appointment of legal representatives of the convent at the ecclesiastical courts. We do not have any direct evidence of the subject of the monastery’s dispute, but one can assume that it related to long-term disputes with the holders of fiefs in the Kladsko region. These disagreements related to economic immunity (unauthorised attempts to collect royal taxes for the monastery’s properties) and, to a lesser extent, other matters.

Дела о наказании за многобрачие во второй половине XIX – начале XX в.: межрегиональное исследование

The article is devoted to the study of the peculiarities of cases of polygamy of residents of provincial regions of the Russian Empire - Tver, Tobolsk and Yaroslavl provinces. The purpose of the study was to identify and conduct a comparative analysis of archival documents that highlight the common and distinctive features of cases of punishment of persons guilty of remarriage when the first marriages existed, legally not dissolved and not terminated. The source base of the study was the previously unexplored archival materials of the State Archive of the Tver region, the State Archive of the Tyumen region in Tobolsk and the State Archive of the Yaroslavl region. The comparative analysis of the preserved documents showed the diversity of judicial practice with regard to the persons who violated the pre-revolutionary norms of rights. The authors compared the identified features of the stages of proceedings in cases of plural marriage and dissolution of marriage for legally authorized reasons. The resolution of cases on this type of offenses was subject to both secular and ecclesiastical courts. It is established in what cases the case was opened in spiritual consistory, and in what cases - in judicial institutions, for what reason and by whom were the initiators of the cases. Some peculiarities of document circulation between the mentioned instances are revealed. It was found out what the choice of the type of both secular and ecclesiastical punishment depended on. Numerous variants of information forgery and document forgery in such situations are considered. The most severe sanctions were imposed for providing false information about marital status. The role of priests and clergymen in observing pre-marital precautions, and of guarantors in testifying at a marriage search is examined. Strict divorce legislation, excessive bureaucratization of the divorce process, and total legal illiteracy of the population are highlighted among the reasons for the conclusion of illegal marriages during the lifetime of the spouse. The authors identified regional peculiarities of polygamy in the provinces of Central Russia and in the periphery. Most of the cases of polygamy discovered in the Tobolsk diocese were in one way or another related to exiles. Appeal to the history of divorce processes, violation of legislation in the conclusion of marital unions can be useful for rethinking the methods of prevention, resolution and prevention of modern marital conflicts in the modern period, when the necessity of punishment for polygamy is reconsidered. The study of the issue is also important for revealing the history of record keeping of official institutions.

“Disciplining” the clergy in the light of Lviv eparchy’s ecclesiastical court in the late 17th – early 18th century

“Disciplining” the clergy in the light of Lviv eparchy’s ecclesiastical court in the late 17th – early 18th century

Alice Mustian, Playwright

Abstract This article provides the first full account of Alice Mustian, a Salisbury woman who in 1614 built a theatre in her backyard and charged an audience admission to watch a group of children perform a play that she had written about some salacious neighbourhood gossip. While the fact that this remarkable incident occurred is not unknown to scholars, the primary historical evidence about the event itself has remained largely unexamined. Drawing on unexplored ecclesiastical court records in the Wiltshire and Swindon History Centre, we offer a more complete picture of the performance, its complex social context, and the motivations of the parties involved. We locate it within the field of study of lost plays; we consider how it relates to other forms of theatre and performance culture in the period; and we discuss Mustian as a female dramatist whose play offers a tantalizing glimpse of the kinds of voices whose dramatic works may not have survived into the present.

Recusal as a Guarantee for the Impartiality of the Ecclesiastical Court

The article examines the mechanism of recusing a judge based on the principle of judicial independence in impartial administration of justice. First, attention is drawn to the reasons for recusal, followed by the conclusion that it involves a judge who is the object of a justified suspicion of bias. Next, the author presents the procedure of excluding a judge from adjudicating in a trial, with a special emphasis on the authority competent to conduct incidental proceedings for recusing a judge. Last, the consequences of accepting a request to recuse a judge are presented: the change of a judge, not of the degree of the trial, and the validity of procedural acts performed before and after an application for recusal has been filed. The author raises a number of questions and offers some clarification for the legislator on the mechanism of recusal. The institution of judicial recusal is a pillar and guarantee of a fair and impartial ecclesiastical process.

Charging the Dead: The Necroeconomies of Burial Laws and the Legal Suspension of the Dead

While Victorian studies have traditionally examined anatomy laws and the dissection of executed criminals, this article discusses laws that required payment for execution and burial costs, and uncovers actual cases in which families refused payment and as a result the state refused to release the corpse. Capital punishment looms over novels such as Charles Dickens’s A Tale of Two Cities, Oliver Twist, and Great Expectations, and Thomas Hardy’s Tess of the d’Urbervilles. Yet, conspicuously absent from these novels are the necropolitics and economics surrounding the dead body of the executed, which saw more legal protections in the nineteenth century. The aim is to not only excavate laws rarely discussed in critical literature, but to interrogate the astonishing lengths the common law and ecclesiastical court systems were taking in order to manage bodies (through fees, burial prescriptives, customary laws, and so on). Execution and burial fees were designed to financially exploit the grieving poor. Therefore, what often resulted was a suspension of burial – a delay caused by necroeconomies built into these grim financial systems. The article thus brings together ecclesiastical court cases to underscore the tension between customary burial fees, Poor Laws, and their critique in fiction.

Vybrané instituty římsko-kanonického procesu v praxi pražské konzistoře ve 14. století: exceptiones in ordine iudiciario

The article focuses on the legal institute of exceptiones in selected tractates written in the 14th century in the diocese of Prague. The first part introduces Circa processum iudiciarium and its inspirational sources, mainly rooted in William Durand’s Speculum iudiciale. The article also analyses Ordo iudiciarius secundum stilum Pragensem with emphasis on the use and different forms of exceptiones. In addition the submission focuses on other institutes of Roman-Canon law bonded with defences, such as replicationes and interlocutory sentences. Second part of this submission examines the praxis of ecclesiastical courts within the diocese of Prague and their application of selected institutes. Such analysis is conducted based on preserved court files of the General Vicariate as well as judicial charters. The aim of the article is to connect the theoretical concepts of tractates with actual judicial application and usage of these institutes within the Roman-Canon procedure.

Interes prawny w procesie o stwierdzenie nieważności małżeństwa przed sądem kościelnym

The judgment of the Supreme Administrative Court of 8 May 2015 confirmed the existence of a legal interest already at the stage of “legal possibility” to initiate proceedings for declaring the nullity of marriage. This interest determines the trouble-free – in contrast to the actual interest – disclosure of personal data of the opposing party. In addition, implementing the provisions of the Concordat, the fact was emphasized that a legal interest can be had not only in a trial before a secular court, but also in proceedings before an ecclesiastical court. What is more, the judgment of the Supreme Administrative Court draws attention to the importance of the fundamental procedural principle audiatur et altera pars. It enables the respondent to defend itself by presenting its position, which in the process of declaring the nullity of marriage takes a special form, because the overriding value is the objective truth about the existence or non-existence of a given marriage.

The Matter of Personae in Medieval Italy

Abstract This article hunts for the medieval understanding of juridical persona in the courtrooms of communal Italy (c.1250–1450). While corporate personae have been the long-favored subject of inquiry for both medieval and modern scholars, the ontological predecessor of the corporate persona, the juridical persona, remains undertheorized. The gap is surprising given that (i) the concept is central to other formative legal notions of standing, status, and identity and (ii) medieval legal practice’s erstwhile penchant was to gloss and re-gloss every word of its central texts. By considering cases of gestural blasphemy brought before both civic and ecclesiastical courts, this article discovers the multiple and context-specific meanings for persona at law. These shifting definitions hover around a theological impossibility: a material quality to divine persons that could render them subject to injury and defendable in court. I contend that the legal utility of the term persona rested in its ability to bridge conceptual gaps like that created in the prosecution of blasphemy. Persona was left definitionally both one and many for good legal reason.

Suffrage and the Secret Ballot in Eighteenth-Century London Parishes

AbstractThis article argues that pre-nineteenth-century elections at a sub-national level have an important place in the history of ‘modern’ voting practices. It does this through a discussion of unusually well-documented election disputes in eighteenth-century London parishes. Previously neglected records of litigation in the ecclesiastical courts reveal that parish elections in this period generated arguments which did not take place at a parliamentary level until the following century: arguments over votes for women, votes for religious minorities, and the secret ballot. Customary electoral rules came under increasing pressure in the early eighteenth century as London’s population grew and changed in character. In some parishes, this produced a narrowing of the traditional ratepayer franchise, allowing only male Anglican ratepayers a vote in parish elections. Elsewhere, groups or individual residents successfully pushed for a more inclusive franchise which allowed ratepaying women, Dissenters, and Jews a voice in parochial politics. Similarly mixed practices emerged with regard to electoral procedure: residents who feared the overbearing influence of their neighbours pressed for a secret ballot, while others insisted on the merits of an open poll. These cases illustrate the importance of small-scale local institutions as key sites of innovation in the history of electoral reform.

Andreas Schrywer vs. Blasius Deydrych: A Case Study in Marriage Litigation in Pre-Reformation Transylvania (1521)

The present article analyses a 1521 marriage trial opposing two Saxon peasant families from the Transylvanian village of Scharosch. The aim of this case study is to illustrate the functioning of ecclesiastical courts and marriage litigation in pre-Reformation Transylvania. Andreas Schrywer, the village judge of Scharosch, presented to the chapter of Schenk a complaint against Blasius Deydrych, whom he accused of deflowering and impregnating his daughter, Rosa Schrywer. Drawing upon the testimonies recorded by the chapter, this article highlights the procedural course followed by the tribunal, the strategy of the petitioner, and the villagers’ views on the relationship between marriage, love and sexuality.

Az 1983. évi Codex Iuris Canonici házasságok érvénytelenségét kinyilvánító peres eljárásainak gyakori jogcímei a kortárs bírósági gyakorlat fényében

This study reports on the matrimonial litigation proceedings of contemporary cases. Standing based on the method of legal comparison, it is possible to investigate the substantive matrimonial law of a sovereign legal system, primarily from the aspect of practice. The author primarily wishes to share his own practical experiences with the professional reader. The reform of the Codex Iuris Canonici is based on the theological reform of the Second Vatican Council, which placed pastoral aspects before jurisprudential aspects, thus the resulting Code (1983) also looks at the institution of marriage through the lens of a love relationship, not denying the contractual nature, but not emphasizing it either. Nowadays, most court proceedings are typically run on three legal grounds, so the study is limited to describing them. The presentation relies on three sources: the judgments of a local ecclesiastical court, canonical publications, and the opinions of the Rota Romana.

A Case of Adultery in Trinity College Edinburgh, 1638

While the Reformed Church of Scotland worked hard to improve the moral standards of its number, parishioners navigated the kirk sessions (ecclesiastical courts) to advance their own personal interests, embracing and resisting moral reform with varying degrees of enthusiasm. At least such were the experiences of Margaret Ducatt, John Stewart, Alison Miller, and Janet Baxter of Trinity College parish in Edinburgh in 1638, who, variously, engaged in adultery, refused to repent, and attempted to procure an herbal remedy to terminate a suspected pregnancy. This article examines a noteworthy case of adultery involving a number of individuals whose responses to discipline varied according to their age, gender, marital status, and social rank; in turn, each of these factors impacted their access to and expression of power. As Laura Gowing noted for early modern England, patriarchal society was reliant upon the marking out of distinctions, not just between men and women, but among women who expressed power over one another, and indeed, over their male contemporaries. By implementing a strict system of ecclesiastical discipline, the Church created an avenue for women to express power and resist overt authority. This article seeks to place the Trinity College case of adultery within wider discussions of patriarchy, power, and relationships.

Crown, Mitre and People in the Nineteenth Century: The Church of England, Establishment and the State. By G. R. Evans

Early nineteenth-century England was a semi-confessional Protestant state in which subjects were expected to conform to the doctrines, worship, and discipline of the Church by law established, but in which there was almost full toleration for those who chose not to conform. The King-in-Parliament was the supreme temporal governor of the established Church of England, while in spiritual matters, the Church was governed by its bishops. The established Church provided religious instruction and pastoral care through a parish system, and religious discipline through a system of ecclesiastical courts. It was supported by tithes on agricultural produce, church rates, church lands, donations, and endowments. It was a national church, expressing the ideal that the state had a responsibility under God to provide religious instruction, observances, and pastoral care to all inhabitants and to act in accordance with divinely-ordained moral law. In this book, G. R. Evans, professor emeritus of medieval theology and intellectual history at the University of Cambridge, explores the semi-confessional state in nineteenth-century England and its complex, multifaceted union of church and state. A trained barrister as well as a respected historian of Christianity, Evans focuses her study on ecclesiastical law. Her book includes some fascinating discussions of the nature and proceedings of the ecclesiastical courts, the personalities and careers of leading ecclesiastical lawyers and judges, and specific legal cases. She also provides a detailed discussion of ecclesiastical legislation in Parliament and of the debates in the Convocations, or consultative assemblies, of the Provinces of Canterbury and York (after those convocations were revived in 1855 and 1861 respectively). As she demonstrates, much of nineteenth-century ecclesiastical law embraced wide areas of English social life, including registration of births, deaths, and marriages, legitimacy and inheritance questions, primary and higher education, blasphemy laws and freedom of speech, doctrinal orthodoxy, clerical discipline, seating in church services, burials, tithes and church rates, church patronage and clerical livings, repair of church buildings, and management of church properties. The union of church and state existed at many levels and affected people’s lives in a myriad of ways.

“The Lord does not wish the death of a sinner”: Investigating Selected Ordinary Glosses to Pope Gregory IX's Decretales (1234) on Heretics

AbstractThis article provides a new perspective on the discussion of heresy from one of the most influential canonical-jurisprudential commentaries of the Middle Ages: Bernard of Parma's Glossa ordinaria to Pope Gregory IX's Decretales (commonly known as the Liber extra). Based on an analysis of Bernard's legal glosses, with special emphasis on his citation of Roman and canon law traditions, I argue that the often-overlooked Glossa ordinaria provides scholars a unique window into medieval conceptions of heresy, jurisprudence, and ecclesiastical-legal practice. This study demonstrates that this important mid-thirteenth-century legal-educational text not only reoriented the canonical definition of heretics toward an emphasis on sects rather than individuals, but, differing from the contemporary, often severe papal and conciliar rulings against heretics, also stressed the centrality of mercy and temperance in how heretics should be treated by the ecclesiastical court. The Glossa ordinaria, as this article discusses, might have served as an intellectual force that could have counter-balanced the overzealousness of emerging inquisitors in an age of intensifying repression of heretics.

Kryzys małżeński jako przyczyna wszczęcia kanonicznego procesu o nieważność małżeństwa w świetle kodeksowej zasady salus animarum

The absolute declaration of nullity of a marriage may be revealed only as a consequence of a canonical trial for nullity of marriage in one of the ecclesiastical courts. The main goal of every such process, as well as of the entire Code of Canon Law, remains the sentence expressed in its last canon: salus animarum suprema lex. Without reference to this sentence, the procedural principles lose their relevance, because this goal determines their content. The multitude of canonical procedural principles results from this overarching principle. Its sublime content requires numerous legislative measures from the ecclesiastical lawgiver. Against this background, the principle of the bilateralism appears, which is omnipresent in the structure of every canonical trial, and is at the heart of it. Keywords: marital crisis, family, canonical process, marital process, procedural principles