The Chur Ch and the L Aw the Church and The

STUDIES STUDIES IN STUDIES IN CHURCH HISTORY IN CHURCH HISTORY Volume 56 CHURCH The Church and the Law HISTORY Edited by ROSAMOND McKITTERICK 56 CHARLOTTE METHUEN and Ecclesiastical History Society VOLUME 56 ANDREW SPICER

Editors: Charlotte Methuen and Andrew Spicer The theme of Studies in Church History 56 is ‘The Assistant Editor: Tim Grass Church and the Law’. It explores the legal issues and STUDIES IN CHURCH HISTORY THE CHURCH AND THE LAW legal consequences underlying relations between secular The aim of the society is to foster the study and religious authorities in the context of the Christian of ecclesiastical history viewed in a wide Latest volumes Church, from its earliest emergence within Roman historical context and from a broad inter- 43. Discipline and Diversity ed. Kate Cooper and Jeremy Gregory (2007) Palestine as a persecuted minority sect, through the 44. Revival and Resurgence in Christian History period when it became legally recognized within the disciplinary perspective, and without regard Roman empire, its many institutional manifestations to denominational differences or divisions. ed. Kate Cooper and Jeremy Gregory (2008) 45. The Church, the Afterlife and the Fate of the Soul THE CHURCH AND THE LAW in the East and the West throughout the Middle Ages, Membership is open to scholars and students the reconﬁ gurations associated with the Reformation ed. Peter Clarke and Tony Claydon (2009) Edited by ROSAMOND McKITTERICK and Catholic or Counter-Reformations, the legal and of all nationalities, and to libraries and 46. God’s Bounty? The Churches and the Natural World institutions. CHARLOTTE METHUEN and constitutional complications (such as in Reformation ed. Peter Clarke and Tony Claydon (2010) ANDREW SPICER The society holds regular meetings and England or Calvin’s Geneva), and the variable 47. Saints and Sanctity ed. Peter Clarke and Tony Claydon (2011) consequences of so-called secularization thereafter. The conferences, including events for postgraduate 48. The Church and Literature ed. Peter Clarke and Charlotte Methuen (2012) engagement of secular and religious authorities with the students. 49. The Church on its Past ed. Peter D. Clarke and Charlotte Methuen (2013) law and the question of what the law actually comprised Studies in Church History is an annually 50. Religion and the Household (Roman law, canon law, national laws, state and royal published series comprising the keynote ed. John Doran, Charlotte Methuen and Alexandra Walsham (2014) edicts) are addressed. Bringing together the work of a lectures and a peer-reviewed selection of 51. Christianity and Religious Plurality wide range of scholars including Paul Cavill (University of Cambridge), Peter Edge (Oxford Brookes University), communications delivered at the society’s ed. Charlotte Methuen, Andrew Spicer and John Wolffe (2015) 52. Doubting Christianity: The Church and Doubt Caroline Humfress (University of St Andrews), and conferences. Each volume presents important Rosamond McKitterick (University of Cambridge), ed. Frances Andrews, Charlotte Methuen and Andrew Spicer (2016) new work, by established as well as by younger this volume deepens our understanding of interactions 53. Translating Christianity scholars, on a particular theme. Volumes are between the churches and the legal systems in which they ed. Simon Ditchﬁ eld, Charlotte Methuen and Andrew Spicer (2017) existed in the past and continue to exist now. available to members of the society at a reduced 54. The Church and Empire price. ed. Stewart J. Brown, Charlotte Methuen and Andrew Spicer (2018) ROSAMOND McKITTERICK is Professor Emerita of Studies in Church History: Subsidia is an 55. Churches and Education Medieval History at the University of Cambridge occasional series of thematic volumes intended ed. Morwenna Ludlow, Charlotte Methuen and Andrew Spicer (2019) CHARLOTTE METHUEN is Professor of Ecclesiastical to supplement the society’s existing series and History at the University of Glasgow. Subsidia Series to extend and diversify its publications. 14. International Religious Networks ANDREW SPICER is Professor of Early Modern ed. Jeremy Gregory and Hugh McLeod (2012) European History at Oxford Brookes University.

Cambridge Core For further information about this journal please go to the journal website at: For the Ecclesiastical History Society www.cambridge.org/StudCH Downloaded from https://www.cambridge.org/core. IP address: 170.106.202.8, on 26 Sep 2021 at 18:16:00, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/stc.2019.29

004242084_56-1_jacket.indd4242084_56-1_jacket.indd AAllll PagesPages 229/04/209/04/20 1:011:01 PPMM Studies in Church History

(2020)

THE CHURCH AND THE LAW

Downloaded from https://www.cambridge.org/core. IP address: 170.106.202.8, on 26 Sep 2021 at 18:16:00, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/stc.2019.29 THE CHURCH AND THE LAW

EDITED BY ROSAMOND McKITTERICK CHARLOTTE METHUEN ANDREW SPICER

PUBLISHED FOR THE ECCLESIASTICAL HISTORY SOCIETY BY CAMBRIDGE UNIVERSITY PRESS 2020

Published by Cambridge University Press on behalf of the Ecclesiastical History Society University Printing House, Cambridge CB2 8BS, United Kingdom

This publication is subject to copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of the copyright holder.

First published 2020

ISBN 9781108839631 ISSN 0424–2084 Bible quotations are taken from the Authorized (King James) Version. Rights in the Authorized Version in the United Kingdom are vested in the Crown. Reproduced by permission of the Crown’s patentee, Cambridge University Press.

SUBSCRIPTIONS: Studies in Church History is an annual subscription journal (ISSN 0424–2084). The 2020 subscription price (excluding VAT), which includes print and electronic access, is £116 (US $187 in the USA, Canada and Mexico) for institutions and £64 (US $103 in the USA, Canada and Mexico) for individuals ordering direct from the Press and certifying that the volume is for their personal use. An electronic-only subscription is also available to institutions at £90 (US $144 in the USA, Canada and Mexico). Special arrangements exist for members of the Ecclesiastical History Society.

Previous volumes are available online at www.cambridge.org/StudCH

Printed in the United Kingdom by Bell & Bain Ltd A catalogue record for this publication is available from the British Library

Preface ix

List of Contributors xi

List of Abbreviations xv

List of Illustrations xix

Introduction 1 Rosamond McKitterick

The Church and the Law in the Early Middle Ages 7 (Presidential Address) Rosamond McKitterick

‘Cherchez La Femme!’ Heresy and Law in Late Antiquity 36 Caroline Humfress

God’s Judgement in Carolingian Law and History Writing 60 (President’s Prize) Robert A. H. Evans

The Political Background to the Establishment of the Slavic 78 Nomocanon in the Thirteenth Century Marija Koprivica

General Excommunications of Unknown Malefactors: 93 Conscience, Community and Investigations in England, c.1150–1350 Felicity Hill

The Procedure and Practice of Witness Testimony in 114 English Ecclesiastical Courts, c.1193–1300 Sarah B. White

The Bishops and the Deposition of Edward II 131 Samuel Lane

Kings’ Courts and Bishops’ Administrations in Fourteenth- 152 Century England: A Study in Cooperation Alison K. McHardy

Arbitration, Delegation, Conservation: Marginalized 165 Mechanisms for Dispute Resolution in the Pre-Reformation English Church R. N. Swanson

Perjury in Early Tudor England 182 Paul Cavill

Conscience and the King’s Household Clergy in the Early 210 Tudor Court of Requests Laura Flannigan

Restoration of Deprived Clergy during the 1559 Royal 227 Visitation of the Eastern Dioceses Ralph Houlbrooke

Adiaphora, Luther and the Material Culture of Worship 246 Andrew Spicer

A Godly Law? Bulstrode Whitelocke, Puritanism and the 273 Common Law in Seventeenth-Century England Jacqueline Rose

‘Very knaves besides’: Catholic Print and the Enforcers of the 288 1662 Licensing Act in Restoration England Chelsea Reutcke

Protestant Dissent and the Law: Enforcement and 306 Persecution, 1662–72 David L. Wykes

The House of Lords and Religious Toleration in Scotland: 320 James Greenshields’s Appeal, 1709–11 Ben Rogers

Toleration and Repression: German States, the Law and the 338 ‘Sects’ in the long Nineteenth Century Manfred Henke

The Social and Legal Reception of Illegitimate Births in the 362 Gurk Valley, Austria, 1868–1945 Catherine Sumnall

Keeping up with the Chinese: Constituting and Reconstituting 383 the Anglican Church in South China, 1897–1951 Tim Yung

The Church of England and the Legislative Reforms of 401 1828–32: Revolution or Adjustment? Nicholas Dixon

The Decline of the Clerical Magistracy in the Nineteenth- 419 Century English Midlands John W. B. Tomlinson

Debating the Legal Status of the Ornaments Rubric: 434 Ritualism and Royal Commissions in Late Nineteenth- and Early Twentieth-Century England (Kennedy Prize) Dan D. Cruickshank

‘The day of Compromise is past’: The Oxford Free Churches 455 and ‘Passive Resistance’ to the 1902 Education Act Martin Wellings

The Chancellors’ Dilemma: The Impact of the First World 471 War on Faculty Jurisdiction Anne C. Brook

Freedom of Religion and the Legal Status of Churches: 487 A Case Study from the Serbian Constitutional Court Tijana Surlan

History, Sacred History and Law at the Intersection of Law, 508 Religion and History Peter W. Edge

vii

The theme of Studies in Church History 56 is ‘The Church and the Law’. The volume comprises a selection of peer reviewed articles drawn from the range of communications presented at the Ecclesiastical History Society’sSummerConferenceatSidney Sussex College, Cambridge in July 2018 and its Winter Meeting at the Institute for Historical Research, London in January 2019. The theme was proposed by Professor Rosamond McKitterick, who served as president of the society for 2018–19. Professor McKitterick’s theme has resulted in a rich and wide- ranging collection of papers which offer insights into the complex interactions between churches and secular law and intertwining of their interests. We should like to thank Professor McKitterick for pro- posing this theme and for her able presidency. Thanks are due also to all those who offered contributions and submitted their papers for consideration for the volume. We are grateful to those who reviewed the contributions, thereby helping the society to ensure that the volume is of the highest quality. A particular contribution has been made, also to this volume, by Dr Tim Grass; we thank him for the engagement he brings to his editorial work and to his involvement in the society more widely. We are grateful to the Ecclesiastical History Society for the funding which supports this post. We are very grateful also to the society’s conference secretary, Dr David Hart, whose work, planning and engagement ensured that the Summer Conference and Winter Meeting went without a hitch. He was assisted by the conference teams at Sidney Sussex College, by staff at the Institute for Historical Research, and by the society’s secretary and treasurer, Dr Gareth Atkins and Simon Jenkins. The Ecclesiastical History Society offers two annual prizes for articles accepted for publication in Studies in Church History. This year, the Kennedy Prize, for the best contribution by a postgraduate student, was awarded to Dan D. Cruickshank for his article ‘Debating the Legal Status of the Ornaments Rubric: Ritualism and Royal Commissions in Late Nineteenth- and Early Twentieth-Century

England’. The President’s Prize, for the best contribution by an early career scholar, goes to Dr Robert A. H. Evans for his article ‘God’s Judgement in Carolingian Law and History Writing’. These articles demonstrate excellent scholarship: we extend our congratulations to both authors. Charlotte Methuen University of Glasgow Andrew Spicer Oxford Brookes University

Anne C. Brook Bradford

Paul Cavill Senior Lecturer in Early Modern British History, University of Cambridge; Fellow of Pembroke College, Cambridge

Dan D. Cruickshank Postgraduate student, University of Glasgow

Nicholas Dixon Postgraduate student, Pembroke College, Cambridge Peter W. Edge Professor of Law, Oxford Brookes University Robert A. H. Evans Chaplain, Christ’s College Cambridge Laura Flannigan Postgraduate student, Newnham College, Cambridge

Manfred Henke Historical Researcher, New Apostolic Church North and East Germany, Hamburg Felicity Hill Lecturer in History, University of St Andrews

Ralph Houlbrooke Professor Emeritus, University of Reading Caroline Humfress Professor of Mediaeval History, University of St Andrews

Marija Koprivica Assistant Professor, Department of History, University of Belgrade

Samuel Lane Postgraduate student, Christ Church, Oxford

Alison K. McHardy Reader in Medieval English History, University of Nottingham (retired)

Rosamond McKitterick Professor Emerita of Medieval History, University of Cambridge; Faculty of Archaeology, History and Letters, British School at Rome

Chelsea Reutcke Postgraduate student, University of St Andrews

Ben Rogers Tutor in History, University College Dublin

Jacqueline Rose Senior Lecturer in History, University of St Andrews

Andrew Spicer Professor of Early Modern European History, Oxford Brookes University

Catherine Sumnall Fellow in Geography, Sidney Sussex College, Cambridge

Tijana Surlan Justice, Constitutional Court of the Republic of Serbia

R. N. Swanson Research Fellow, Institute of Advanced Studies in Humanities and Social Sciences; Professor, Research Center for Social History of Medicine, School of History and Civilization, Shaanxi Normal University, China; Emeritus Professor of Medieval Ecclesiastical History, University of Birmingham

John W. B. Tomlinson Director of Studies, St John’s College, Nottingham

xii

Martin Wellings Oxford

Sarah White Research Fellow, University of St Andrews

David L. Wykes Director, Dr Williams’s Trust and Library, London

Tim Yung Postgraduate student, University of Hong Kong

xiii

AJLH American Journal of Legal History (1957– ) ARG Archiv für Reformationsgeschichte (1903– ) BIA Borthwick Institute for Archives BJES British Journal of Educational Studies (1952– ) BL British Library BN Bibliothèque nationale de France Bodl. Bodleian Library CChr Corpus Christianorum (Turnhout, 1953– ) CChr.SL Corpus Christianorum, series Latina (1953– ) CCR Calendar of the Close Rolls Preserved in the Public Record Ofﬁce, 1227–1550, 62 vols (London, 1902–55) CCT Corpus Christianorum in Translation (Turnhout, 2010– ) CERC Church of England Record Centre CERS Church of England Record Society ChH Church History (1932– ) CICan E. Richter and E. Friedberg, eds, Corpus iuris canonici, 2 vols (Leipzig, 1879–81) CPReg Calendar of Entries in the Papal Registers relating to Great Britain and Ireland (London / Dublin, 1893– ) CRL Cadbury Research Library, University of Birmingham CRS Catholic Record Society CSCO Corpus Scriptorum Christianorum Orientalium (Paris, 1903– ) CSPD Calendar of State Papers, Domestic CYS Canterbury and York Society EHR English Historical Review (1886– ) EME Early Medieval Europe (1992– ) ET English translation HL Huntington Library HMC Historical Manuscripts Commission HistJ Historical Journal (1958– ) HR Historical Research (1986– ) HThR Harvard Theological Review (1908– ) JBS Journal of British Studies (1961– )

JECS Journal of Early Christian Studies (1993– ) JEH Journal of Ecclesiastical History (1950– ) JLH Journal of Legal History (1980– ) JMedH Journal of Medieval History (1975– ) JRS Journal of Roman Studies (1911– ) JThS Journal of Theological Studies (1899– ) L&P J. S. Brewer, James Gairdner and R. H. Brodie, eds, Letters and Papers, Foreign and Domestic, of the Reign of Henry VIII, 21 vols in 35 pts (London, 1862–1932) LHR Law and History Review (1983– ) LMA London Metropolitan Archive LPL Lambeth Palace Library LW Luther’s Works, ed. J. Pelikan and H. Lehmann, 56 vols (St Louis, MO, 1955–86) MGH Monumenta Germaniae Historica inde ab a. c. 500 usque ad a. 1500, ed. G. H. Pertz et al. (Hanover, Berlin, etc., 1826– ) MGH Capit. Monumenta Germaniae Historica, Capitula regum Francorum, 2 vols (1883–97) MGH Conc. Monumenta Germaniae Historica, Concilia (1893– ) MGH Epp. Monumenta Germaniae Historica, Epistolae (1887– ) MGH H Monumenta Germaniae Historica, Hilfsmittel (1975– ) MGH Poetae Monumenta Germaniae Historica, Poetae Latinae Medii Aevi (1881– ) MGH SRG i.u.s. Monumenta Germaniae Historica, Scriptores rerum Germanicarum in usum scholarum seperatum editi (1871– ) MGH SRM Monumenta Germaniae Historica, Scriptores rerum Merovingicarum (1884–1951) MGH ST Monumenta Germaniae Historica, Studien und Texte MidH Midland History (1971– ) n.d. no date NF Neue Folge (‘new series’) NH Northern History (1966– ) n.pl. no place

xvi

NRS National Records of Scotland (formerly National Archives of Scotland) n.s. new series ODNB H. C. G. Matthew and Brian Harrison, eds, Oxford Dictionary of National Biography (Oxford, 2004) OHA Rowan Strong, gen. ed., Oxford History of Anglicanism, 5 vols (Oxford, 2017–18) OHCC Oxford History of the Christian Church OHLE Oxford History of the Laws of England (Oxford, 2004– ) OMT Oxford Medieval Texts P&P Past and Present (1952– ) PH Parliamentary History (1982– ) PL Patrologia Latina, ed. J.-P. Migne, 217 vols þ 4 index vols (Paris, 1844–65) RH Recusant History (1951– ) RSEH Records of Social and Economic History RO Record Ofﬁce RS Rerum Britannicarum medii aevi scriptores, 99 vols (London, 1858–1911) ¼ Rolls Series s.a. sub anno (‘under the year’) SC Sources Chrétiennes (Paris, 1941– ) SCH Studies in Church History SCJ Sixteenth Century Journal (1970– ) SelS Selden Society SHCM Studies in the History of Christian Missions SHR Scottish Historical Review (1903– ) s.n. sub nomine (‘under the name’) Speculum Speculum: A Journal of Medieval Studies (1925– ) s.v. sub verbo (‘under the word’) THSLC Transactions of the Historic Society of Lancashire & Cheshire (1849– ) TNA The National Archives TRHS Transactions of the Royal Historical Society (1871– ) UL University Library TTH Translated Texts for Historians VCH Victoria History of the Counties of England (London, 1900– )

xvii

VS Victorian Studies (1956– ) WA D. Martin Luthers Werke: Kritische Gesamtausgabe, ed. J. K. F. Knaake et al. (Weimar, 1883– ) WA.Br D. Martin Luthers Werke: Kritische Gesamtausgabe. Briefwechsel, 18 vols (1930–85)

xviii

Catherine Sumnall, ‘The Social and Legal Reception of Illegitimate Births in the Gurk Valley, Austria, 1868–1945’ Fig. 1. Map of Illegitimate Births in Austria in 1937. Source: Österreich Statistisches Amt für die Alpen- und Donau-Reichsgaue, Der Umbruch in der Bevölkerungsentwicklung im Gebiete der Ostmark (Vienna, 1941), 25. 378 Fig. 2. Radar Graph of Austrian Illegitimacy and its Seasonality in 1937. Source: Österreich Statistisches Amt, Der Umbruch, 28. 379 Fig. 3. Marriages in 1937/8 compared with 1938/9. Source: Österreich Statistisches Amt, Der Umbruch, 17. 380

xix