Recent and modern court controversies over areas that impact religious belief and doctrine are interesting compared with similar ancient legal controversies. Of course, the common law has evolved over the centuries, even substantively in the area of religion. It is well-known to legal scholars and practitioners that “public policy” shifts, over time, cause courts to eventually make rulings that would not have been considered in earlier periods. Society’s view on what is “right,” “moral,” and “acceptable,” changes over time, for good or ill. In the past, such things as fornication or interracial marriage have been illegal in many jurisdictions, but almost never addressed in courts today—but the current struggles are about gay marriage, taxes being used for abortion, or mandated contraceptive supply in health insurance.
In the birthplace of the Common Law, church courts sat alongside “secular” courts (though the word does not mean the same then as now). In 1535, a lawsuit was filed by a plaintiff because the defendant had “called the plaintiff a heretic, and one of the new learning.”
At that time, the spiritual Courts in England had jurisdiction in all defamation cases. There were two types: a violation of spiritual law and a violation of temporal law. The former had to do with such things as falsely saying someone had fornicated, not paid tithes, ate meat during Lent. etc. The latter involved false statements about someone committing theft, murder, or or treason (even though these also would displease God and therefore be against spiritual law). The concept was that some kinds of defamation should be dealt with by the State, because it affects the State more directly.
Of course, like today, there were cases which fell into the grey areas between the two, and therefore required the courts to make a decision. The case mentioned above was one such case. Here are some arguments:
“It is clear that this action does not lie here, for it is purely spiritual. If the defendant wanted to justify, by alleging that the plaintiff is a heretic and stating in what respect, we could not discuss whether that is heresy or not. If, however, it were something where we could determine the principle matter, such as thief or trader, or suchlike, an action would lie for the words here; four we have knowledge of what things are treason or felony. But where it is for calling him an adulterer, or as the case is here, no action lies, for the aforesaid reason.”
“Some things are mixed, and punishable under both loss–for instance, if one says that another keeps bawdery[1. “Bawdery” was punishable under both laws, depending on the circumstances. Keeping a ‘bawdy’ house could be punished under the common law, much like public nuisance laws today. But bawdy behavior was punished in the spiritual court.] or something like that–and for those one may elect where he will bring his case…”
What would those ancient court have made of modern controversies? Easier would be for modern courts to deal with the ancient issue. Some might suggest that when a society relegates spirituality to the private realm, it is much easier to dispose the law upon its citizens, regardless of their beliefs of lack of beliefs.
(The case mentioned above is anonymous, found in Y.B. Trin. 27 Henry VIII, fo. 14, pl. 4; Gell’s manuscript, LC Law MS. 15, of 30 (C.P.). The quotes are from Baker and Milsom’s Sources of English Legal History: Private Law to 1750, p. 688.)
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