Two case studies from eighth-century Rome, recorded in the early medieval history of the popes known as the Liber pontificalis, serve to introduce both the problems of the relations between secular or public and ecclesiastical or canon law in early medieval Rome and the development of early medieval canon law more generally. The Synod of Rome in 769 was convened by Pope Stephen III some months after his election in order to justify the deposition of his immediate predecessor, Pope Constantine II (767–8). Stephen's successor, Pope Hadrian, subsequently presided over a murder investigation involving Stephen's supporters. The murders and the legal process they precipitated form the bulk of the discussion. The article explores the immediate implications of both the murders and the convening of the Synod of Rome, together with the references to law-making and decree-giving by the pope embedded in the historical narrative of the Liber pontificalis, as well as the possible role of the Liber pontificalis itself in bolstering the imaginative and historical understanding of papal and synodal authority. The wider legal or procedural knowledge invoked and the development of both canon law and papal authority in the early Middle Ages are addressed. The general categories within which most scholars have been working hitherto mask the questions about the complicated and still insufficiently understood status and function of early medieval manuscript compilations of secular and canon law, and about the authority and applicability of the texts they contain.

In contrast with contemporary heresiological discourse, the Codex Theodosianus, a Roman imperial law code promulgated in 438, makes no systematic gendered references to heretics or heresy. According to late Roman legislative rhetoric, heretics are demented, polluted and infected with pestilence, but they are not seductive temptresses, vulgar ‘women’ or weak-minded whores. This article explores the gap between the precisely marked terrain of Christian heresiologists and (Christian) legislators. The first part gives a brief overview of early Christian heresiology. The second explores late Roman legislation and the construction of the heretic as a ‘legal subject’ in the Codex Theodosianus. The third turns to the celebrated account crafted by Pope Leo I of anti-Manichaean trials at Rome in 443/4, arguing that they should be understood as part of a much broader developing regime of ecclesial power, rather than as concrete applications of existing imperial anti-heresy laws.

Early medieval thinkers often conceived of God in legal terms, especially when they interpreted contemporary disasters as God's ‘just judgement’. Modern scholars have emphasized the importance of these ideas for motivating early medieval reform and legislation and for interpreting history itself. This article explores how these ideas were used in Carolingian legislation and history writing and argues that God's judgement was not as straightforward a theme as it first appears. God's judgement, for example, was not nearly as important for Carolingian historians as it had been for their predecessors. Similarly, in both legal and historical texts, there was great variety in how God's judgement or punishment was expressed, both in how that punishment fell and on whom (whether on the audience or on their enemies). Across these works, however, it is clear that God's judgement was almost never referred to apart from his continuing mercy and help towards to the audiences of these texts. This shows the importance of the various aspects of God's character for early medieval churches and their attitudes to law and history.

The first collection of canon law translated from the Greek into the Slavic language in the ninth century supported the consolidation of Christianity among the Slav peoples. This article focuses on the nomocanon of St Sava of Serbia (Kormchaia), a collection which was original and specific in its content; its relationship to other contemporary legal historical documents will be considered. The article also explores the political background to the emergence of Orthodox Slav collections of ecclesiastical and civil law. The political context in which these collections originated exercised a determinative influence on their contents, the selection of texts and the interpretation of the canons contained within them. The emergence of the Slavic nomocanon is interpreted within a context in which Balkan Slav states sought to foster their independence and aspired to form autocephalous national churches.

In high and late medieval England, general sentences of excommunication pronounced against unnamed wrongdoers were common. Responding to crimes whose perpetrators were unknown, general excommunications were a valuable tool that sought to discover and punish offenders in a number of ways. Solemn denunciations might convince the guilty to confess in order to avoid damnation, or persuade informants to volunteer information. General sentences were also, however, merely a precursor to investigations launched into those responsible. Public denunciations aided investigations conducted by clergy in the local community by publicizing and forcibly condemning the crime committed. Once discovered, suspects were summoned to the bishop's court and were either forced to make amends and do penance or excommunicated by name. This article therefore argues that general sentences were far more complex, effective and legally significant than they are often perceived to be.

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.

The deposition of Edward II was a watershed in the legal history of later medieval England. However, the significance of the church in its accomplishment has remained controversial. This article offers a reassessment by providing a brief narrative of the episcopate's involvement in events; analysing the importance of their contribution, with particular reference to the quasi-legal aspect of proceedings; considering whether this participation reflected their own initiative or was something about which they had no choice; and questioning why so many bishops turned to oppose Edward II. It becomes evident that prelates played a key part in Edward II's downfall, and that they became involved as a consequence of the oppressive treatment which he had meted out to them, to their families and to political society more broadly.

Behind the rhetoric and theory of crown-church conflict there was much cooperation in the everyday world, where practice and pragmatism often overrode legal and theoretical rules. This article examines the ways in which fourteenth-century English bishops and their clerks responded to the demands made of them by the royal courts. Bishops were bombarded with commands from the crown, with a resulting impact on diocesan records. The crown sought historic information about finance and rights, and commanded bishops to collect clerics’ debts and to enforce their attendance before the lay courts in both civil and criminal cases. Enquiries about the current status of individuals, whether professed in religious orders or legitimate, made considerable work for bishops. How enthusiastically and efficiently these orders were carried out is also evaluated and discussed.

The records of diocesan and peculiar courts of late medieval England have received extensive academic scrutiny, generating a reasonably clear picture of a hierarchical pyramid ultimately headed by the papal curia. However, that picture is an incomplete depiction of the totality of the ecclesiastical mechanisms of dispute resolution. Existing scholarship largely ignores the use of arbitrated extra-curial settlements to avoid litigation (or, alternatively, a formal sentence). Concentration on the provincial court hierarchy also marginalizes the more directly papal courts of judges delegate and assorted local agents with judicial powers, which functioned within England between 1300 and the Reformation and bypassed the normal fora. Drawing on a wide range of scattered source material, this article introduces these neglected elements of the church's legal system, including the resident papal conservators appointed at the request of petitioners to exercise a general delegated papal judicial authority on their behalf, whose existence has been almost completely unnoticed. It suggests the significance of arbitration, delegation and conservation within the wider structure, and the need to give them much more attention if the practical importance of canon law in pre-Reformation England is to be properly understood and appreciated.

The break with Rome was enforced through a nationwide programme of oath-taking. The Henrician regime resorted to oaths because they were already fundamental to the functioning of the polity. In the preceding half-century, activities as diverse as heresy prosecution, tax assessment and debt litigation depended upon oaths. Irrespective of their often mundane subject matter, oaths were held to be religious acts. Prolific oath-taking, however, led to frequent oath-breaking. Perjury was therefore a more pressing and broader concept than it is today. It was an offence against God, against oneself and against others. How this crime was prosecuted and punished sheds light on the intersection of religious doctrine, legal systems and social practice in pre-Reformation England. An analysis of perjury also draws attention to a jurisdictional shift that was underway before the Reformation. In 1485, church courts had exercised an extensive cognizance of perjury; by 1535, they no longer did. The most important factor contributing to this decline in ecclesiastical jurisdiction was the constraint imposed by common lawyers on what cases the church courts could hear. Common law defined the crime of perjury more narrowly than did canon law. Hence the contraction of the church's jurisdiction would alter how perjury was perceived.

The early Tudor Court of Requests was closely attached to the king's person and his duty to provide ‘indifferent’ justice. In practice, however, it was staffed by members of the attendant royal household and council. Utilizing the little-studied but extensive records of the court, this article traces the rising dominance of the dean of the Chapel Royal and the royal almoner as administrators and judges there from the 1490s to the 1520s. It examines the relationship between supposedly ‘secular’ and ‘spiritual’ activities within the central administration and between the formal and informal structures and ideologies of the church, the law and the royal household. It explores the politics of proximity and the ad hoc nature of early Tudor governance which made the conscience-based jurisdiction in Requests especially convenient to the king and desperate litigants alike. Overall the article argues that although the influence of clergymen in the court waned towards the end of the sixteenth century in favour of common-law judges, its enduring association with ‘poor men's causes’ and ‘conscience’ grew directly from these early clerical underpinnings.

It is well known that many of the English clergy took advantage of the statutory authorization of clerical marriage under Edward VI, but then suffered deprivation when that authorization was rescinded in Mary's reign. Less familiar are the proceedings that enabled incumbents who had lost their livings as a penalty for marriage to recover them after Elizabeth I's accession. This article focuses on a neglected source, an act book kept during the royal visitation of the eastern dioceses (London, Norwich and Ely) in 1559. It seems likely that this document records a large majority of the suits undertaken by deprived married clergy for the recovery of their livings in those dioceses. Most claimants were successful, but some suits failed, for a variety of reasons. Other sources, and the work of previous scholars in the field, shed some light on the recovery of their livings by men who do not appear in the act book. Probably rather more than a quarter of the men deprived for marriage under Mary in these dioceses recovered their livings in or after 1559. Many others had died or for various reasons did not seek restoration to the benefices of which they had been deprived.

The celebration of the late medieval mass and other religious ceremonies was carefully delineated through the ecclesiastical regulations of the Catholic Church. This legalistic approach to worship was strongly criticized by both Desiderius Erasmus and Martin Luther before 1517. With the subsequent Reformation, Luther reacted against Catholic legalism which, he argued, ensnared the faithful and threatened Christian freedom. He was therefore particularly reluctant to specify what he considered to be the appropriate form, place and setting for his German mass. Luther utilized the concept of adiaphora to argue that such issues were matters of indifference as they were not fundamental for salvation. However, this stance was tempered by his realization that such Christian freedom actually did require direction to ensure that the Reformation message was not confused or lost.

Debates surrounding both the church and the law played an important role in the conflicts that marked seventeenth-century England. Calls for reform of the law in the Civil Wars and Interregnum complicated the apparent relationship between puritanism and the common law, as the first fragmented and the second came under attack in the 1640s and 1650s. This article first analyses the common lawyer Bulstrode Whitelocke's historical and constitutional writings that defended the common law against demands for its reform and argued that its legitimacy derived from its origins in, and resemblances to, the law of Moses. Refraining from the radical application of this model employed by some contemporaries, Whitelocke instead turned to British history to make his case. This article then examines Whitelocke's views of the relationship between common law and ecclesiastical jurisdiction in his own day, showing how, both as a lawyer and as a puritan, he navigated laws demanding religious conformity. Whitelocke's career therefore demonstrates how lawyers could negotiate the fraught relationship between the church and the law in the aftermath of the reconfigurations provoked by the Civil Wars and Restoration.

This article explores the motivations of three enforcers of the Licensing Act of 1662 in regard to their treatment of the illicit Catholic book trade in London during the Restoration. As censors, the Stationers’ Company, the Surveyor of the Press, Roger L'Estrange, and the bishop of London, Henry Compton, were intended to unite the concerns of the book trade, the state and the church. However, each used the Licensing Act to pursue their own interests. Contemporaries and historians have both viewed the act as being unsuccessfully enforced; this article explores whether full enforcement was ever the goal. Using the case of Catholic print, it posits that it was precisely the act's flexibility that encouraged its repeated renewals. Moreover, exploring the print of the Catholic minority in London highlights the differences between the written law and the enforced law. Finally, this article suggests that at times there existed an informal toleration for the printers and booksellers engaged in Catholic book production that enabled books to escape detection and the Catholic book trade to continue despite the Licensing Act.

Religious Dissent was shaped by the law. The Act of Uniformity (1662) set out the terms of conformity, and those who could not accept those terms risked prosecution. A great many were convicted under the earlier Elizabethan and Jacobean recusancy statutes, but new laws, such as the Conventicle Acts (1664, 1670) and the Five Mile Act (1665), were also passed. Anthony Fletcher's essay, published in 1984, remains almost the only study of enforcement, in which he argued that the impact of the penal laws on Dissent has been exaggerated because the Conventicle Acts were not systematically enforced. A range of contemporary accounts will be used to suggest that their impact was greater than has been appreciated because of the enforcement of other statutes and the harassment of ejected ministers and their supporters.

This article examines how the House of Lords, as the ultimate appellate authority of the new kingdom of Great Britain, formed after the union of 1707, provided a degree of religious toleration for Scotland's episcopalian minority when they supported James Greenshields's appeal on 1 March 1711. Greenshields was a Scottish episcopalian minister who appealed to the Lords in February 1710 after he was imprisoned by the Edinburgh magistrates for using the English Book of Common Prayer to conduct a service for a private episcopalian congregation. The Lords’ decision confirmed that no law in Scotland proscribed the Prayer Book liturgy and provided a degree of legal recognition to the episcopalians who used it. This article examines the arguments that Greenshields and his supporters used to advance his appeal. In doing so, it sheds new light on the relationship between Scotland's established church, the nation's episcopalian minority and the new British state.

At the beginning of the period, the Prussian General Law Code did not provide for equal rights for members of ‘churches’ and those of ‘sects’. However, the French Revolution decreed the separation of church and state and the principle of equal rights for all citizens. Between the Congress of Vienna (1815) and the revolution of 1848, Prussian monarchs pressed for the church union of Lutheran and Reformed and advocated the piety of the Evangelical Revival. The Old Lutherans felt obliged to leave the united church, thus eventually forming a ‘sect’ favoured by the king. Rationalists, who objected to biblicism and orthodoxy, were encouraged to leave, too. As Baptists, Catholic Apostolics and Methodists arrived from Britain and America, the number of ‘sects’ increased. New ways of curtailing their influence were devised, especially in Prussia and Saxony.

This article uses a combination of sources, ranging from statistical material calculated from parish records, through oral history interviews and autobiographies, to letters sent by parish priests to their bishop, to illuminate the spaces between law, marriage and the church in the Gurk valley of southern Austria. It argues that local patterns and trends of illegitimacy were tolerated by the Catholic clergy, and that the relationships concerned were understood both as marriage without ceremonialization, and as stable unions where marriage was impeded by poverty. These attitudes hardened in the state legal practices that formed part of Nazi family policy and reduced rural illegitimacy.