English Ecclesiastical Courts Research Articles

‘Weak’ Legal Pluralism and the Eighteenth-Century English Ecclesiastical Courts

ABSTRACT The work of the eighteenth-century English ecclesiastical courts has received very little scholarly attention when compared with their seventeenth- or nineteenth century counterparts or the eighteenth-century temporal courts. And yet there was significant overlap between the two systems, particularly between the ‘disciplinary’ work of the ecclesiastical courts and the ‘criminal’ work of the temporal courts. Using a heuristic of ‘weak’ legal pluralism, this article examines the work of the ecclesiastical courts and shows that neither system can be understood adequately without reference to the other.

Церковные суды в тюдоровской и раннестюартовской Англии: положение и юрисдикция

The purpose of the study is to determine the position of ecclesiastical courts in Tudor and Early Stuart England. The article pays special attention to subject-matter jurisdiction of ecclesiastical courts in that period according to the main types of legal relations on the basis of a diverse source base and modern research. Scientific novelty lies in the fact that for the first time in the Russian medieval studies, subject-matter jurisdiction of the English ecclesiastical courts in the XVI - early XVII century was comprehensively investigated. As a result, it is proved that ecclesiastical courts remained an effective system of judicial proceedings in Tudor and Early Stuart England, they were able to expand their own jurisdiction and were closely integrated into structures of the society’s everyday life.

The Procedure and Practice of Witness Testimony in English Ecclesiastical Courts, c.1193–1300

In the twelfth century, the English church courts made considerable use of compurgation and of sworn members of the community to aid in the resolution of disputes, but by the end of the thirteenth century, academic canon law depended almost entirely on witness testimony. Romano-canonical proceduralists established rules for examining witnesses, rejecting testimonies and resolving conflicts. However, these academic ideals were not always possible or even desirable in practice. Although Roman procedure required witnesses to be eyewitnesses, English ecclesiastical practice allowed witnesses to testify to public knowledge. Furthermore, individuals who were not qualified to testify did so regardless, and their testimonies were not excluded even following exceptions. This is not to say that standard procedure was not followed; more often than not, it was. However, these differences between theory and practice indicate that practitioners (and perhaps judges) in the English ecclesiastical courts were experimenting with ways to use witness testimony beyond the confines of the academic law.

Secularizing a Religious Legal System: Ecclesiastical Jurisdiction in Early Eighteenth Century England

Abstract The early eighteenth-century English ecclesiastical courts are a case study in the secularization of a legal system. As demonstrated elsewhere, the courts were very busy. And yet the theoretical justification for their jurisdiction was very much a matter of debate throughout the period, with divine-right and voluntaristic conceptions vying for precedence. Placed in this context, the King’s Bench decision in Middleton v Crofts (1736) represented an important step in the direction of limiting the reach of ecclesiastical jurisdiction, and did so on grounds that undermined divine-right justifications of the ecclesiastical court system as a whole.

Neutral Citation in the Ecclesiastical Courts

Neutral citation – the practice of giving each judgment of a court a reference number or citation – has been in use in the senior courts of England and Wales since 2001. The beginning of January 2016 saw the introduction of a new system of neutral citation for English ecclesiastical courts. The practice direction bringing this practice into force is reproduced below and is preceded by an introductory essay by the Dean of Arches and Auditor.

X. Scandalum in the Medieval Canon Law and in the English Ecclesiastical Courts

Article X. Scandalum in the Medieval Canon Law and in the English Ecclesiastical Courts was published on August 1, 2010 in the journal Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Kanonistische Abteilung (volume 96, issue 1).

R. B. Outhwaite, The Rise and Fall of the English Ecclesiastical Courts, 1500–1860

R. B. Outhwaite, The Rise and Fall of the English Ecclesiastical Courts, 1500–1860

Moving Households: Geographical Mobility and Serial Monogamy in England, 1350–1500

Most historians agree that in the instance side of late medieval English ecclesiastical courts, divorce causes (whether for legal separation or for complete annulment of the marriage) were outnumbered by cases attempting to establish matrimony. But does this imbalance imply that marriage was, in fact, a relatively stable institution, and divorce or marital breakdown rare, in late medieval England? A consideration of the difficulties and costs of obtaining a canonical annulment, combined with a study of cases of bigamy brought to light in both the instance and the office sides of the courts suggests, instead, that unhappily married couples may quite often have resorted to informal separation, followed, sometimes, by unlicensed remarriage. These strategies, in turn, both encouraged and were assisted by geographical mobility among the participants, which rendered it difficult for courts to detect long series of transient partnerships that might lie behind apparently valid marriages. An appreciation of the possible scale of unlicensed serial monogamy might, in turn, modify orthodox historical perceptions of the stability and normality of the legally-instituted nuclear family in late medieval England.

Lay Supremacy: Reform of the canon law of England from Henry VIII to Elizabeth I (1529-1571)

In 1529, Parliament passed the first in a series of statutes denouncing papal authority as a usurpation of the traditional jurisdiction of the English ecclesiastical courts, and reasserting the doctrine of the late-fourteenth century Statutes of Praemunire. In response, the clergy in Convocation initiated a pre-emptive attempt at a systematic overhaul of the canon law. The urgency to reform ecclesiastical law was further sharpened by Henry VIII's assumption of headship of the Church of England. Several abortive attempts were made during his reign to establish a committee to set about the task of legal reform. It was not until 1551, however, that Edward VI finally appointed a Royal Commission of 32 under the leadership of Archbishop Thomas Cranmer charged with drawing up a formal proposal for systematic reform of canon law and ecclesiastical discipline. Introduced into Parliament in April 1553, the revised canons were summarily rejected, largely at the instigation of the John Dudley, Duke of Northumberland. The Commission's draft was edited by John Foxe, published under the title Reformatio legum ecclesiasticarum, and presented to Parliament a second time in 1571. Although published with Archbishop Matthew Parker's approval, the Reformatio legum was fated to receive neither royal, nor parliamentary, nor synodical authorization. At the time certain members of Parliament contested the royal prerogative to determine matters of faith and discipline. Of what significance was this repeated failure to achieve systematic reform of the canon law and ecclesiastical discipline in defining religious identity in England in the period of the Reformation, as well as in later ecclesiastical historiography?

'On the Chastity of Women All Property in the World Depends': Injury from Sexual Slander in the Nineteenth Century

In this Article, Professor Pruitt discusses conceptions of the injury associated with defamation law, focusing in particular on sexual slander cases that were brought in the early nineteenth century, before statements that impugned a woman's chastity were deemed slander per se. During this time, women had to prove so-called special damages in order to state a cause of action. Courts showed some flexibility in what they recognized as constituting special damages, even stretching to recognize pecuniary harm in damaged personal relationships. Nevertheless, courts refused to recognize injuries stemming from and related to emotional distress injuries, and they were often skeptical that a variety of harms claimed by women were the direct and natural consequences of the offending statement. In studying what courts viewed to be special damages and therefore worthy of redress in this context, Professor Pruitt's work reveals several insights. First, we learn something of the nature of the reputational interest protected by defamation law. In particular, Professor Pruitt argues that courts viewed these slandered women's reputations as a form of property, and they ignored the dignitary nature of the injury. In addition, these cases provide an opportunity to see another example of the gendered trends in tort law that have been identified by scholars such as Professor Martha Chamallas. Professor Chamallas has argued that tort law values property and economic injury over relational and emotional injury, and that injuries may be judicially characterized as one or the other based upon the gender of the sufferer. Professor Pruitt's analysis points out the presence of these value hierarchies in sexual slander cases, just as Professor Chamallas has established their presence elsewhere in tort law. Finally, Professor Pruitt argues that sexual slander law was an additional way in which women's sexual propriety was commodified, ultimately to the benefit of their fathers and husbands. She argues that a preferable scheme would have permitted courts more expansive jurisdiction over sexual slander claims, as well as power to provide a more expansive array of remedies. That is, drawing on the remedies of apology and repentance that had been available in English ecclesiastical courts - remedies remarkably similar to retraction and declaratory judgment remedies that are associated with contemporary defamation reform - nineteenth-century courts could have avoided propertizing women's virtue. At the same time, they could have provided appropriate remedies to more of the women who had been injured by sexual slander.

Nullity of Marriage English and Canon Law

IN this country the law governing nullity of marriage comes down from the Canon law of the Christian Church, and the principles and rules of the former English ecclesiastical courts have been perpetuated by statute.1 This is not to say that the Roman Canon law exercised by the English ecclesiastical courts up to the Reformation has been maintained in its entirety or that the jurisdiction exercised since the Reformation in those courts until 1858 has not been modified. I shall indicate in due course the