Religion, Law, and Confusion in Early Modern England

Indecision, compromise: both seem to be the order of the day in British politics. From indecision over the triggering of the EU’s ‘Article 50’ to the decade-long discussions over Heathrow’s third runway that seem to run and run: in the realm of politics, clear and definite decisions just don’t seem to be forthcoming.

This though is nothing new for the English political system. In the fourth talk in the Religion and Law series, Prof Anthony Milton took us back to Early Modern England and the arrival of Protestantism – and to a remarkable political, legal and religious fudge.

King Henry VIII’s divorce from Catherine and Rome, and the subsequent creation of the Church of England, led not to a complete abandoning of Catholicism and its influences, but rather to a compromise. The Henrician Compromise allowed the existing Catholic canon laws to remain valid until such time as new law could be made, provided only they didn’t go against the law of the realm and the prerogative of the King.

During the reign of Henry’s son Edward VI, new laws were actually drafted. In 1552-1553, Thomas Cranmer created a body of Protestant laws, called the Reformatio Legum Ecclesiasticarum, as part of a plan for a radical overhaul of the Church. But due to Edward’s early death, the Reformatio was never implemented. And his eventual successor Elizabeth I adopted a policy of ‘masterly inactivity’.

That meant the old laws stayed on the books. And the result was a religious law system in a state of confusion that competed with and clashed with the common law courts. Confusion over what could be discussed in what court led to abuses and delays within the legal system. The Reformatio was re-published several times in an attempt to clean up this ‘unholy mess’, but it was never implemented.

But what if it had been? What would the Church of England have looked like if the Reformatio Legum Ecclesiasticarum had been given the force of law? England would have looked very different.

For instance, a key aspect of the Reformatio concerned moral discipline. Anyone found guilty of adultery or of committing serious cruelty towards their wife could be punished with perpetual banishment and excommunication. This excommunication was to be enforced not just by the bishop, but by the local community as a form of social exclusion.

The excommunicate could be reconciled to the Church, but such a process would also have involved the local parish community. Under the Reformatio, the hierarchy of the Church would have been more flexible, with the bishop working alongside the clergy. In short, the implementation of the Reformatio would have changed the way that religion and law worked, devolving power to the local community, rather than to the law courts.

The confusion in Early Modern England due to the inability to define what was meant by Protestantism and Protestant law can still be seen today, as Catholic canon laws are still – remarkably – an element of the English legal system. But such confusion also provides interesting parallels with the political situation of the present, and the position that England once more finds itself in.

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The next talk in the series is held on Wednesday 2nd November at 1:15pm in Sheffield Cathedral, where Imam Sheikh Mohammad Ismail will discuss ‘Sharia Councils in Contemporary British Society: Conflict or not?’ For the full programme of talks see here.

Image: Archive.org (the Reformatio legum ecclesiasticarum  Londini, Impensis Societatis Stationariorum, Thomas Fisher Collection, University of Toronto)

 

Getting off the Hook

This month, debates over the UK government’s  plans to make troops exempt from human rights laws whilst on service have highlighted how not all groups are treated the same under the law in modern society.  But who has immunity from the law, and where does the concept come from?

In last week’s talk in the Religion and Law series, Dr Charles West discussed how clerics in the Middle Ages were exempted from the conventional laws which bound society.

The reign of King Henry II of England in the twelfth century led to the extension of royal power deep into the counties and shires. A key expression of this authority was the bringing of royal justice within reach of the English people. However, an impediment to this extension was the exemption, on paper anyway, of clerics from the king’s laws.  Rather than being treated by the kings’ judges for their crimes, they were to be tried by other clerics.

Henry II’s desire to remove clerical exemption led to arguments with the Archbishop of Canterbury, Thomas Becket. Becket argued for clerical exemption, stressing that it was the right of clerics, going back to the Roman Empire, to be tried by their own peers and not by the judges of the royal court.

The disagreement between the two contributed to Becket’s long exile. A tentative reconciliation was short-lived, for in 1170 Becket was assassinated by over-zealous royal followers. It was Becket’s death that forced Henry to make the compromise that allowed for clerical exemption from his laws.

The exemption of clerics from royal law had implications for the clerics who committed the crimes, but also for the system which ruled the land. The separation of the Church from the judicial system marked out the latter as secular, separate from ecclesiastical affairs – though twelfth-century government and kings could hardly be described as not being religious. The twelfth-century ‘benefit of the clergy’ then saw the institutionalisation of two separate systems – one for the laity and one for the clergy.

The ratifying of clerical exemption into English law was to remain influential until the nineteenth century, though by this point the ‘benefit of the clergy’ had come to be applied to many first time offenders rather than the clergy alone. Today the calls to prevent soldiers being accountable to the European Court of Human Rights (ECHR) would place them in a parallel system to that of conventional law. Exemption from the law still has implications in the present.

However,  ‘benefit of clergy’ shouldn’t just be thought of as a dry legal principle. It had real consequences for people in the Middle Ages,  as one woman in Lincoln in 1202 was to discover. Mabel was an ordinary woman who wanted justice for the murder of her husband, Godwin. However, with the disappearance of the murderer, Alred, Mabel was left to accuse Alred’s family (whom she was then forced to admit had nothing to do with her husband’s murder), and the cleric William, who had held her husband down as he was killed.

William did not deny having played a role in Godwin’s murder. But he did not have to, as because of Becket’s death some thirty years before, he was exempt from the laws of the secular royal court. The worst punishment he faced for his crime was being defrocked – that is, losing his clerical status. So, William was passed over to the bishop’s officials,  and that is the last we hear of him (the records for clerical trials have not survived).

Mabel’s situation was tragic, but not unusual. The summer of 1202 in Lincoln saw well over 500 cases brought before the king’s judicial envoys. Many of the cases brought before the court were violent in nature – 75 of them being murders. This violence was not simply carried out by the laity but by clerics as well – it was only the law that treated them as separate, not society.

So Mabel and William’s story reminds us of how the law and its relationship with religion can have an effect upon everyday people. The development of religion and law in the last three talks has shown us the pathways that religion and law have taken in different ways, but Mabel, the murder of her husband, and the favourable treatment of one of his murderers reminds us of the very human impact of law’s intersection with religion.

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The next talk in the series is on Wednesday 26th October at 1:15pm in Sheffield Cathedral, where Prof. Anthony Milton will discuss Religion and Law in Early Modern England. For the full programme of talks see here.

Exile: Creating Orthodoxy in the Roman Empire

Exile: the banishment of a person or group from their home country, typically those who pose a threat to government and/or society. Exile has often been used by successive leaders and states to remove those who contradict their authority through words and actions. For the Roman Emperors of the fourth and fifth centuries, the use of exile was no different.

Following on from last week’s Religion & Law talk, on Weds 12th October Dr Julia Hillner traced the development of Christianity in the Roman Empire, and how the use of Imperial Law had unintended consequences for the establishment of Christian orthodoxy.

In the fourth century, the Roman Emperors exiled hundred of Christian clerics to far-flung and remote regions of the Empire (including the Isles of Scilly). The intention was to bring about their cultural alienation. But because their exile was within the Empire itself, many clerics were able to continue to spread the opinions for which they had been exiled.

A good example of this is provided by Athanasius of Alexandria. Athanasius had led the fight against a cleric named Arius, who argued that Christ was subordinate to God the Father.  Athanasius succeeded in having the Council of Nicaea in 325, called by the Emperor Constantine, condemn Arius’s beliefs as heretical.

Many people remained however attracted by Arius’s beliefs, and indeed Athanasius himself ended up being exiled. But Athanasius, and others like him, were able to make use of their exile to create new networks of support, particularly in the West of the Roman Empire. So when Arius’s beliefs were discussed again some sixty years later at the Council of Constantinople in 381, there were far fewer people willing to speak up for them. Athanasius’s exile had led to the spread of ideas, an unintended consequence of a law that was supposed to stop ideas from travelling, not promote them.

In the fifth century, however, the imperial government and Church Councils were able to wield more control over exiled clerics, as the example of Nestorius of Constantinople demonstrates. Nestorius argued that Jesus had two natures: one divine and one human, and that it was his human nature that was represented in his life on earth.

His arguments tapped into a great debate within Christianity, but because of disagreements with Cyril, the Bishop of Alexandria, he was condemned at the Council of Ephesus in 431 and initially exiled to his monastery at Antioch. But continued accusations against him led him to be exiled to numerous other places in Egypt, under ever closer surveillance by the Bishop of Alexandria, throughout the East until his death in circa 450. Unlike Athanasius, Nestorius was less able to use his exile to spread his ideas beyond his core supporters located in Syria. As a result, Athanasius’s theology is now fundamental to western Christianity, whereas Nestorius’s isn’t.

Exile then was a way for the Church and the Roman Emperor to attempt to create a Christian space and exclude anyone who did not agree. The exiling of clerics helped to shape the nature of Christian orthodoxy; an orthodoxy that would continue to define Christianity up to the present day.

For more information on Dr Julia Hillner’s work,  you can read about her project here.

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The next talk in the series is on Wednesday 19th October at 1:15pm at Sheffield Cathedral, where Dr Charles West will discuss Clerical Exemption from the Law in the Middle Ages. For the full programme of talks, see here.

Early Christian Traditions: Creating a Place in the World

Over the next six weeks a series of lunchtime talks, a collaboration between Sheffield Cathedral and the University of Sheffield, is taking place at the Cathedral. The talks discuss the co-existence of religion and law, offering historical and contemporary perspectives on their relationship and its development.

The Cathedral considers itself as ‘A Place for all People’, where members of all denominations and faiths can come together. It aims to create a communal space of worship, breaking down the boundaries between religious groups. Those boundaries and tensions between religious groups often originate from the laws they create. Religious law has been, and is, a way of creating a community based on a regulated set of beliefs.

Last Wednesday,  Dr Mark Finney began this series of talks by discussing the complex development of Christian law up to the first and second centuries, and highlighting how Christian law has its roots in early Jewish and Mesopotamian traditions.

Beginning with the story of Abraham, and tracing the creation of the 613 laws contained in the Old Testament, Dr Finney sought to illustrate how laws, such as the requirement of circumcision, were a way for the Israelites to define themselves against those who believed in a plurality of gods. Law helped to define their new community and create a barrier between them and polytheism, which reigned supreme during the Old Testament period.

The laws they created guided the Jews through key aspects of their lives, but with exile from their land (the ‘Babylonian Captivity’) came questions as to whether these laws had helped or hindered their relationship with God. One response was a revitalised prophetic tradition. Jeremiah and Micah in particular called into question the value of the Jewish religious code as it then was.

This was an important context for the later teaching of Jesus, who viewed the old laws with ambivalence. He advocated instead just one law: love. The Apostle Paul took this to its most abstract form, arguing that no other law was needed except that of Jesus, and with him the Holy Spirit. This abstract concept of law however proved to be hard to follow, and thus the early Christian Church fathers gradually created their own laws to guide believers through life.

The early Church fathers continued to debate Christian law throughout the second and into the third century. They were constantly trying to understand the teachings of Jesus and incorporate them into a workable law that could help to define what was a minority community within the Roman Empire. Early Christian law, like the early Jewish law before it, was thus an attempt to find a place in a world that was at the time defined by polytheism.

Christianity is still trying to work out its place in the world today through such issues as female ministry and same sex marriage. Laws today define the Christian community and continue to exist and change in an attempt to place the Christian community in an increasingly diverse and multicultural world, where boundaries are more porous and tensions between groups often high.

The next talk in the series is on Wednesday 12th October at 1:15pm, where Dr Julia Hillner will discuss ‘Religion and Exile in the Roman Empire.’ For the full programme of talks see here.

Emily Bowes, an MA student at the Department of History, is co-ordinating the cathedral talks along with Charles West.