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When Anglican missionaries helped to constitute the Chinese Anglican Church (Chung Hua Sheng Kung Hui) in 1912, they had a particular expectation of how the church would one day become self-supporting, self-governing and self-propagating. The first constitution crafted by missionary bishops presupposed an infant church that would require the step-by-step guidance of its parent association. However, the intended trajectory was superseded by the zeal of Chinese Christians and drastic changes in the national government of China. The constitutional basis of the Chinese Anglican Church had to be restructured fundamentally again and again due to political upheaval in republican China, the Japanese occupation and the Communist revolution. This article explores the difficulties of crafting and implementing church constitutions in China in the first half of the turbulent twentieth century. Focusing on the South China diocese, wider questions are posed about the formation of canon law in an age of extremes.
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.
Since the 1950s, historians of the eighteenth- and nineteenth-century Church of England have generally maintained that the Sacramental Test Act (1828), the Roman Catholic Relief Act (1829) and the Reform Act (1832) amounted to a ‘constitutional revolution’, in which Anglican political hegemony was decisively displaced. This theory remains the dominant framework for understanding the effect of legislation on the relationship between church and state in pre-Victorian England. This article probes the validity of the theory. It is argued that the legislative reforms of 1828–32 did not drastically alter the religious composition of parliament, which was already multi-denominational, and that they incorporated clauses which preserved the political dominance of the Church of England. Additionally, it is suggested that Anglican apprehensions concerning the reforming measures of those years were derived from an unfounded belief that these reforms would ultimately result in changes to the Church of England's formularies or in disestablishment, rather than from the actual laws enacted. Accordingly, the post-1832 British parliamentary system did not in the short term militate against Anglican interests. In light of this reappraisal, these legislative reforms may be better understood as an exercise in ‘constitutional adjustment’ as opposed to a ‘constitutional revolution’.
A significant proportion of Church of England clergy in the early nineteenth century took up the role of magistrate to help enforce the law in local communities, partly in consequence of the growth of clerical wealth and status which had begun in the previous century. This legal role was perceived by some as contradictory to clerical pastoral duties, and as such detrimental to the church. Some would view it as contributing to a decline of the Church of England, which was seen as too much associated with the established powers in an era of social change. After the peak of the 1830s, the number of clerical magistrates began to fall dramatically, marking the emergence of a more exclusively religious clerical profession uneasy with the antagonisms associated with local law enforcement. This study, focusing on the diverse county of Staffordshire, presents the case that the decline of the clerical magistracy is an early indicator of the withdrawal of the clergy from involvement in secular concerns, and as such provides important evidence for the growth of secularization in British society.
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.
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.
This article uses the history of the Ornaments Rubric in the late nineteenth and early twentieth century to explore the emergence of claims to self-governance within the Church of England in this period and the attempts by parliament to examine how independent the legal system of the church was from the secular state. First, it gives an overview of the history of the Ornaments Rubric in the various editions of the Book of Common Prayer and the Acts of Uniformity, presenting the legal uncertainty left by centuries of Prayer Book revision. It then explores how the Royal Commission into Ritualism (1867–70) and the Public Worship Regulation Act (1874) attempted to control Ritualist interpretations of the Ornaments Rubric through secular courts. Examining the failure of these attempts, it looks towards the Royal Commission on Ecclesiastical Discipline (1904–6). Through the evidence given to the commission, it shows how the previous royal commission and the work of parliament and the courts had failed to stop the continuation of Ritualist belief in the church's independence from secular courts. Using the report of the royal commission, it shows how the commissioners attempted to build a via media between strict spiritual independence and complete parliamentary oversight.
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.
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.
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.
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.
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.
This article offers a short study of the conjugation of freedom of religion, freedom of association and the legal status of religions and churches. Human rights are elaborated as defined in international human rights law, accentuated by the jurisprudence of the European Court of Human Rights. A compliance case that came before the Constitutional Court of the Republic of Serbia provides a national jurisprudential example useful for the analysis of relations between human rights and the legal status of a church. Analysis of the law is both horizontal and vertical: a description of norms is intertwined with a discussion of principles of identity and equality. The article explores whether the principles of human rights and freedoms and the norms regulating the legal status of a church are consistent with each other; whether these principles are independent and how their mutual relationship influences the application and interpretation of the law; and whether the norms prescribed by international law or in national jurisprudence can be applied independently of canon law, or whether application of the law has to take into account specific religious jurisdictions and relations between churches which are rooted in their autonomous canon law.
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.
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.
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.
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.