This volume of Studies in Church History is dedicated to the publication of a selection of papers that represent the theme ‘The Church and the Law’, which was the subject of two Ecclesiastical History Society conferences that were held in July 2018 and January 2019. Arranged chronologically, from late antiquity to the twentieth century, the 27 chapters that make up the volume range widely over the general scope of ‘church and law’. The compilation also has a large geographical compass. Thus, it explores the issue of legal transfer through the dissemination of ecclesiastical and related secular legal concepts, practices and texts across countries and continents. Examples include ‘Keeping up with the Chinese: constituting and reconstituting the Anglican Church in south China, 1897–1951’, in which Tim Yung traces Chinese influence and the accommodations and resort to Anglican Church authorities made by ecclesiastics responsible for the sustainability of small Christian communities; and the relatively contemporary ‘Freedom of religion and the legal status of churches: a case study from the Serbian Constitutional Court’, by Tijana Surlan, which looks at issues of human rights and the status of a church as the subject matter for national law stemming from 2006.
This is a rewarding volume to read, whether one's interest is founded in law, religion or history. It makes a particularly good contribution to legal history. As Rosamond McKitterick points out in the Introduction, Christianity employs legal terminology such as judgement, sanctions, commandments and so forth and it has both developed its own ecclesiastical law and contributed to the development of secular law. The nature and development of canon law is addressed, particularly in the earlier chapters. The mechanics of ordinary ecclesiastical legal process, which is a somewhat neglected area of legal history, are well demonstrated, as, for instance, in Sarah B White's exposition of ‘The procedure and practice of witness testimony in English ecclesiastical courts c. 1193–1300’, and Felicity Hill's ‘General excommunication of unknown malefactors: conscience, community and investigations in England c. 1150–1350’. The latter examines excommunication records which show some of the underexplored practicalities surrounding excommunication, as well as the ways in which ordinary citizens engaged with the law. ‘Perjury in early Tudor England’, by Paul Cavill, provides an interesting study of oaths – a vitally important feature of historical legal process, which has been studied by few scholars. Laura Flannigan's paper, ‘Conscience and the king's household clergy in the early Tudor Court of Requests’, on this under-researched court, is another fascinating piece of work for legal historians.
The collection of papers is richly varied in terms of subject matter and each chapter provides well-researched and well-argued reading. Several chapters identify or expressly explore more than one discreet issue within the research topic and some draw unifying conclusions from separate and seemingly disparate cases. Perhaps the best illustration of this is ‘History, sacred history and the law at the intersection of law, religion and history’, by Peter W Edge. Through his analysis of the repeal of the Fraudulent Mediums Act 1951 by the Consumer Protection from Unfair Trading Regulations 2008, the Babri Masjid/Ram Temple dispute in Ayodhya, India, and the Hindmarsh Island Bridge Controversy in South Australia, Edge identifies problems regarding the intersection of law and history around the nexus of religion, particularly where these form the basis of legal disputes.
The majority of the articles conceptualise over and above their empirical research findings and the detail of their immediate subject matter. As a result, there are some recurrent themes that unite the book as a whole. One of these is that of the interaction between secular and ecclesiastical law and legal processes. This is developed both by the analysis of theological conceptual issues and their relationship and contribution to the law, and in procedural studies, such as Alison Hardy's ‘Kings’ courts and bishops’ administrations in fourteenth-century England: a study in cooperation’. This is a valuable exposure, which pivots away from the more traditional historical accounts of political interaction, although a further insight into the ways that bishops were involved with secular legal processes in a political context is given in Samuel Lane's ‘The bishops and the deposition of Edward II’.
Interestingly, the volume also features ‘nonconformity’ as it appears in its various guises, perhaps even extending to heresy, as explored in Caroline Humfress’ gender study ‘Cherchez la femme! Heresy and law in late antiquity’. The challenge posed by nonconformity in several historical periods affected the operation of both Church and secular law. A cluster of chapters concerns seventeenth-century religious dissent, although the topic is approached from different angles. David L Wyke's article, ‘Protestant dissent and the law: enforcement and persecution’, looks at the experience of the wider group of dissenters from the stipulations of the 1662 Act of Uniformity, who are sometimes overlooked. More within the context of print culture, Chelsea Reuche addresses the issue in ‘“Very knaves besides”: Catholic print enforcers of the 1662 Licencing Act in Restoration England’. Here, with careful analysis of the terms of the Licencing Act itself, Reuche examines the work undertaken by Roger L'Estrange, the Surveyor of the Stationer's Company, and the vehement anti-dissenter Henry Compton, Bishop of London, in preventing forbidden, especially Catholic, dissenting publications and in prosecuting publishers. However, Ben Rogers’ chapter, ‘The House of Lords: religious toleration in Scotland: James Greenshields's appeal 1709–11’, analyses this well-known case in the context of what it reveals of how the law was developing in relation to religious toleration.
In Rosamond McKitterick's substantive chapter, ‘The Church and law in the early Middle Ages’, there is an emphasis upon original documents as sources of law, which is another recurrent theme. Through re-examining the details of familiar or infamous cases, contemporary legal ideas and issues are revealed and this fresh approach contrasts with interpretations and assumptions taken from later legal histories or compilations with which readers may be generally more familiar. This also applies to re-analysing familiar Church controversies, as for example Nicholas Dixon shows in ‘The Church of England and the legislative reforms of 1828–32: revolution or adjustment’.
The papers that have been selected for inclusion also cover matters within the remit of ecclesiastical jurisdiction such as marriage. Ralph Hollbrooke's ‘Restoration of deprived clergy during the 1559 royal visitation of the eastern dioceses’ provides a fascinating close study of the deprivation and restitution of married clergy during the Restoration. (At the risk of including a spoiler, this article rather begs the question of what happened to the abandoned wives, but that is no doubt an area for further research!)
Marriage also features in ‘The social and legal reception of illegitimate births in the Gurk Valley, Austria, 1868–1945’, a study that explores ‘the connections between marriage as a religious institution, marriage as an important and significant legal state, and the existence of large numbers of illegitimate births’ (p 363) in a locality in southern Austria. This is also an instance of how the Church might deal with long-standing dissenting behaviour in practice. Catherine Sumnall uses an impressive methodology that includes parish and diocesan records, autobiographies, correspondence and statistics, among them the 1941 statistical analysis of the impact of the Anschluss with Nazi Germany in 1938 as it pertained to the matter. It is worth re-iterating, as this chapter, in particular, demonstrates, that ecclesiastical sources such as parish, diocesan and national archives and court records form a vast and rich resource for the law.
Andrew Spicer's work on adiaphora, ‘Adiaphora, Luther and the material culture of worship’, differs in character to some extent from many of the other essays, with its primary focus being upon religious objects and art rather than on comparative analysis of sources. However, in re-examining Luther's teachings in relation to adiaphora, it contributes to the understanding of how theological views of worship manifested themselves and how these could change.
In summary, the contents of this volume are rather modestly described in the Introduction as a ‘preliminary investigation’ (p 1). However, through the quality of research and the depth of analysis that the majority of chapters contain, this particular volume of Studies in Church History amounts to an excellent investigation of the wealth of material and of the vast and pertinent scope of the Church and the law. It is a very stimulating collection that exposes and highlights some enduring and important seams which connect the Church and the law, and which are ones that should not be considered as confined to past history.
