Richard H. Helmholz

The rise and fall of the English ecclesiastical courts, 1500-1860

Abbreviations Table of parliamentary statutes 1. The ecclesiastical courts: structures and procedures 2. The business of the courts, 1500-1640 3. Tithe causes 4. Wills and testamentary causes 5. Defamation 6. Matrimonial litigation and marriage licenses 7. Office causes 8. The roots of expansion and critical voices 9. Charting decline, 1640-1830 10. Explaining decline 11. The Bills of 1733-1734 12. Snips and repairs: small steps to reform, 1753-1813 13. Royal commissions and early fruits, 1815-1832 14. Reform frustrated 15. Reforms thick and fast, 1854-1860.

Roman Canon Law in Reformation England

Preface List of abbreviations Table of statutes Table of cases 1. The medieval inheritance 2. The fortunes of ecclesiastical jurisdiction 3. Developments in law and legal practice 4. The literature of civilian practice 5. The civilians and English common law Appendices Index.

The Privilege Against Self-Incrimination: Its Origins and Development

Preface Abbreviations 1: Introduction R. H. Helmholz 2: The Privilege and the Ius Commune: The Middle Ages to the Seventeenth Century R. H. Helmholz 3: Self-Incrimination in Interjurisdictional Law: The Sixteenth and Seventeenth Centuries Charles M. Gray 4: The Privilege and Common Law Criminal Procedure: The Sixteenth to the Eighteenth Centuries John H. Langbein 5: The Privilege in British North America: The Colonial Period to the Fifth Amendment Eben Moglen 6: The Modern Privilege: Its Nineteenth-Century Origins Henry E. Smith 7: A Peculiar Privilege in Historical Perspective Albert W. Alschuler Notes Table of Statutes Index

Crime, Compurgation and the Courts of the Medieval Church

The history of criminal law has claimed an increasing share of the attention of legal and social historians in recent years. Undeterred by Professor Milsoms verdict that in the area of English criminal law, ‘nothing worthwhile was created,’ historians have plunged into the study of doctrine and practice in the common law courts. The attractions of the source material are undoubtedly great. The law is relatively straightforward, at least compared to land litigation. The cases are interesting and sometimes sensational. The subject matter promises rewards in understanding the relationship between social change and legal development. And the study may even be immediately relevant, shedding light on current law enforcement problems.

The Roman Law of Blackmail

The legal “puzzle” raised by modern blackmail is that although it is lawful to disseminate harmful information about another person, just so long as the information is true, it is unlawful to extort money by making threats to do so. Roman law took a different approach. It was unlawful to reveal the harmful information unless the speaker could show a privilege to speak, usually that the public interest would be served by the revelation. For this reason, it was unlawful to threaten to do so unless such a privilege existed. This paper traces the Roman law way of thinking about blackmail into the Middle Ages and beyond, showing that it persisted even in the English common law.

Richard Hooker and the European ius commune

Placing Richard Hooker (d 1600) within the history of European thought has never been easy. The work of this Elizabethan defender of the English Church seems to defy exact categorisation. Publication in the Folger Library Edition of Hookers complete works has, however, made knowledge about him easier to acquire than it once was, and in particular it makes possible a more accurate assessment of a question of interest to readers of this Journal. How much did he know about the ius commune , the amalgam of Roman and canon laws that governed practice in the tribunals of the Church? More than that, because the Folger Edition includes all Hookers surviving writing—even his sermons and autograph notes—it is possible to discover more about the ways in which Hooker made use of the legal sources at his disposal, including those from the Roman and canon laws.

Discipline of The Clergy: Medieval and Modern

Discipline of the clergy is a subject of perennial interest—both in the popular press whenever something sensational takes place, and among the clergy and thoughtful lawyers when they are confronted either with the general problem of how best to fashion the churchs law or the more immediate problem of how to deal with offenders against the churchs law. The subject also has a long history. The purpose of this article is to bring to light a chapter from the century or so before the Reformation. Evidence taken from the medieval canon law and from the court records of the later Middle Ages may be of interest—and perhaps even relevance—to members of the Ecclesiastical Law Society. It has been my pleasure and good fortune to discover that many of them are not immune to the claims of history.

Pope Innocent III and the Annulment of Magna Carta

Historians have offered a variety of explanations for Pope Innocent IIIs release of King John from the promise that he made to observe the clauses of Magna Carta. None has won general acceptance. This article proposes an alternative by examining the tenets of the canon law as it was understood in 1215. That examination shows that the law of oaths (De iureiurando) played a central role in canonistic thought of the time. It contained the juristic resources that made it possible for Innocent to release John from the oath that he had taken at Runnymeade.

Re-interpreting Blackstone’s Commentaries: a seminal text in national and international contexts

law were known for Hungarian lawyers, too). Several questions of family law were regulated by statutes (separating state and church activity) at the end of the nineteenth century. It did not mean that family law was not considered to belong to the field of civil law. So the first part of the bill of 1928 (influencing the court practice to a great extent) contained rules on family matters. It was only the legislation based on Marxist ideology which separated regulation of family relations from that of civil law after World War II. Customary law in the history of Hungary is analysed by the author. It is evident that the Hungarian customary law is different from the common law. Court practice and particularly decisions of the Supreme Court, the Curia, nevertheless also played a great role in the formation of customary law in Hungary. According to the historical interpretation these were not the individual decisions which were considered as binding upon the lower courts but the continuous practice in similar cases. Decisions of the Curia were collected from the early eighteenth century and were published regularly from 1823. After the compromise the binding force of decisions of plenary session and of some other specified decisions was regulated by Act of Parliament. Similar regulation is in force in these days. The above short remarks may indicate that Professor Rady has made enormous work covering a huge field. The research followed several lines reminding one to some extent of a detective story and the reader has to think of different interconnections. As far as the few lines of the book on the period after 1948 are concerned I wouldmention that this period requires a special practice of reading for understanding what is behind the lines.According to recent information the preparatoryworks of the Civil Code of 1959 will be digitalized and so made available for research work.

The English Law of Marriage and the Family (1500–1640)

This paper provides a survey of English matrimonial law and practice between 1500 and 1640. Throughout this period, the English church retained its hold on this aspect of human life. The Reformation did not lead to eclipse of the canon law or the end of ecclesiastical jurisdiction over marriage and divorce, as happened in Scotland and in parts of Germany. That jurisdiction included a criminal side—prosecution of lay men and women who had offended against principles of Christian morality—as well as a civil side—disputes over the validity of marriage contracts and impediments to existing marriages. Based on the surviving records of the ecclesiastical courts, the chapter shows how practice was touched by both stability and change during this period. The former predominated. Most important, the Church of England rejected the Council of Trent’s decree Tametsi. Private exchanges of words of present consent continued to be specifically enforceable as valid marriages. Some tightening of the requirements necessary to prove their legal existence did occur, but no change in the substantive law took place. The church also continued to exercise its ex officio jurisdiction; in fact the courts slightly expanded its scope, punishing some offenses that had been left to the penitential forum during the Middle Ages. Whether this continuity was the result of lawyerly inertia or instead a product of increasing moral seriousness among the English people during these years remains an open question.