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This chapter argues that the fact that some key late Roman ecclesiastics were trained as forensic practitioners is crucial to explaining how it was that early ‘canon law’ was elaborated using specific techniques and procedures ‘borrowed’ from Roman law. The various foundational strands of early Judaeo-Christian ‘internal’ ideas and practices, forensic practice and church councils, and forensic practice and the papal elaboration of ‘ecclesiastical’ law are discussed.

The legal framework of the Church of England subsists in formal legal texts created not only by the church's internal legislators but also by the state, and technical terms have been devised to classify these as canon law and ecclesiastical law. On the other hand, many regulatory instruments governing the church exist outside formal texts legislated by the church and state: these may be classified as ecclesiastical quasi-legislation. The Roman Catholic Church, which is not formally established in the same sense as the Church of England, is regulated similarly by internally made canon law and by rules legislated by the state. For both churches, the degree to which regulatory instruments are binding and enforceable depends on the status of the instrument in question. With respect to jurisprudence, the fundamental authority underlying internally made church law is conceived by both churches to be divine law. While for the Roman Catholic Church, canon law is defined as internal ecclesiastical regulation, for the Church of England there is no agreed, clear understanding of the terms ‘canon law’ and ‘ecclesiastical law’.

This chapter examines how medieval customary and written law reacted, not to completed suicide but to mere attempts at it. The enquiry focuses on three questions. First, how far did reactions to attempted suicide differ from those to the completed act? Second, was this difference greater or less than the equivalent difference in respect of other crimes? Third, did the answer to these questions differ from one juridical milieu to another, for instance, as between ecclesiastical and secular courts? In respect of attempt, the odd status of suicide arose from two peculiarities that marked suicide off from other crimes. One was the unique degree of moral heinousness attached to the completed act; the other, that the failure of an attempt at suicide eliminated, at a stroke, most of the legal anomalies innate in suicide as such.

This chapter gives a striking account of the Anglo-Saxon Church. The church has never been without laws, and in many respects, the Anglo-Saxon church was actually quite rich in them. Canons were known, enacted, and admired among the Anglo-Saxons. Although some of the substantive provisions in these laws later seemed worse than merely unsophisticated, and although much of the church's effort was mixed in with secular law in a way that would come to seem objectionable to the clergy, ecclesiastical law could claim a place in the legal life of the land. It can be said that the Anglo-Saxon church lacked much that would later seem essential — consistory courts and trained lawyers for example. But law had established a place in the English church that it would not lose.

This chapter defines women’s legal status in a variety of legal jurisdictions across the Anglo-American world, and examines how colonists adopted and modified English law in the earliest decades of colonisation. It argues that the complexity of the English legal system gave English women a decisive advantage over some of their colonial counterparts. While married women were limited in common law courts by the doctrine of coverture, other legal jurisdictions provided women with alternative avenues for legal redress when defending their property and persons. The two most important jurisdictions for women in England were equity law and ecclesiastical law, which both provided some remedy for the common law’s severity toward women.

This chapter offers a quantitative analysis of female litigants in courts across three jurisdictions during the seventeenth century. Though the percentage of female litigants in common law courts remained low, an increasing number of women sought legal redress under equity law in England. In those colonies that established courts of chancery based on the English model, such as the Chesapeake Bay colonies and South Carolina, women also had the benefit of an equity jurisdiction that recognised exceptions to the doctrine of coverture. This chapter also presents remarkable evidence that women appeared as plaintiffs and defendants in more than half of the cases heard before the English ecclesiastical law courts, a percentage that far outstrips women’s participation in any court in the colonies.

This chapter examines the nature and sources of ecclesiastical law, or the law of the Church of England. It begins with a discussion of the purpose of the law of and for the Church of England, which is to regulate the functioning of the Church and its individual members by a combination of commands, prohibitions, and permissions. It then traces the historical development of ecclesiastical law, from the early Church through the Reformation and post-Reformation. It also considers the nature and effect of establishment of the Church as well as Acts of Parliament, measures, canons, and secondary legislation that have become sources of ecclesiastical law. Finally, it looks at other sources of ecclesiastical law including case law and precedent, quasi-legislation and soft law, jus divinum, custom, jus liturgicum and dispensation.

The interrogatories for the clerical order in the Memoriale Presbiterorum begin in the traditional manner with the religious. The author devotes separate sections to the simple religious, and to ‘claustrales’, the religious holding cloistral office, and obedientiaries. The topics that form the basis of the Memoriale’s s interrogation of clerics derive from ecclesiastical law, common and local, and having many parallels in the literature of complaint. The general observations with which the author concludes his chapter on secular clerics, however, reveal a bias that is fundamental to his approach to the pastoral cure. He is aware that inadequacies on the part of secular clerics are regarded by the ‘religious’ that is in this context as being a justification for their interference in parish life.

Chapter Three continues the book’s discussion of Elizabethan political philosophy by turning to the period’s most powerful defense of the English Church and English commonwealth as corporations on a grand scale: Richard Hooker’s Of the Laws of Ecclesiastical Polity (1593). The main arguments between Hooker and Presbyterian writers concerned the constitutional arrangement and jurisdictional authority of the Church as a “politic society.” By wielding corporatist arguments with great subtlety, Hooker formulates a philosophy of law that is without parallel among his contemporaries, including the relation between Divine, Natural, and human or positive law. The chapter also examines Hooker’s account of the relation between Church and State and his use of the theological category of the “person.” It shows how his nascent theory of the “public” unites theological and civic life and issues onto a major statement about the nature of sovereignty that anticipates the arguments of Hobbes.

This chapter examines the relationship between jurists and legislators from three different perspectives. It shows that late medieval ecclesiastical and royal statutes concerned with abortion as crimen were treated as less than literally binding texts. The glossing activities of law professors freely modified their legislative content in light of prevailing juristic doctrine and proposed restriction or outright rejection whenever academic theory and its systematic appeal seemed compromised. Innovative normative impulses were expected to come instead from the law schools themselves, where, for example, two Bolognese teachers working in the 1340s intervened heavy-handedly in previous learned discourse and denied humanity to the fetus altogether. The absence of interference in momentous legal change on the part of political leaders is further discussed as a reminder of how the criminalizing trends of the twelfth century did not depend on coercive imposition from above but rather occurred spontaneously and in response to the specific needs of a new force in society, the townspeople. Jurisprudence spread from important centers of urbanization outward and did so with or without the assistance of top-down command.

This chapter examines the conditions in the Marianas while under Spanish rule. The Spanish government in the Marianas was led by the gobernador político-militar, who combined all civil and military responsibilities in direct authoritarian rule. The governor issued orders by edicts (bandos) and also acted as judge and chief of police. The legal system of the Marianas, like the Philippines, came under the church’s ecclesiastical law as well as the Spanish civil and criminal code called the Law of the Indies, which had been created originally for the Spanish colonies in the Americas but was amended to apply to the Philippines and the Marianas as well. There was no separation of church and state. Spanish justice in the colonies employed retributive punishment, often severe. All this was normal in European colonies worldwide at the time.