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Wednesday, September 24, 2014

The Law of Pews

I finally finished R.H. Helmholz's Roman Canon Law in Reformation England. While most of my friends have reacted to my reading this book with disdain, furrowed brows, and concern for my sanity, I maintain that the book, while arcane at times, contains numerous fascinating anecdotes and important insights regarding legal history. I have blogged about several of the more interesting subjects Helmholz discusses here and here.

On finishing the book, I thought that I would share one final, humorous passage on the law of pews:

The law of church seats or pews provides a different but equally clear example of this attitude [of resisting change to spiritual courts' jurisdiction] held by civilians. Large numbers of causes dealing with this strange and trivial subject are to be found within contemporary act books. Evidence about men sitting obstinately in each others' laps, or putting tacks on the seats to keep their enemies from sitting there, figured in contemporary litigation. In these causes, the normal issue of law (slightly simplifying) was whether or not one could acquire a right to a particular seat by sitting there long enough. That is, the outcome of the litigation turned on the law of prescription. Men fought intemperately over who would sit where on a particular Sunday, precisely because they wanted to guard against any interruption of their prescriptive and customary rights. 
Regrettably, no simple and definitive answer to the underlying legal question about pews was ever given. At least none emerges from the records. One opinion held that nothing within a church could be prescribed because it was res sacra. Another was that possession time out of mind could raise a presumption that the right had been legitimately granted. I have not been able to tell which eventually prevailed, if indeed either did, though the persistence of the question suggests that the first view did not carry the day. For present purposes, however, the important fact is that discussion and resolution of the issue went on in spiritual courts without the slightest reference to the English common law. The judges of the ecclesiastical courts treated questions about the existence and validity of this particular sort of custom as belonging fully within their own sphere of determination. (176-77).
While the book was at times dense and difficult to approach, I must acknowledge that I approached the subject matter as somebody with limited knowledge of history and virtually no formal historical education. Even so, I found Helmholz's discussion of the legal community's transition from spiritual law to common law enlightening and often fascinating, and I was struck by the breadth of original case law Helmholz draws upon in reaching his conclusions.

Charles Donahue Jr. reviews Helmholz's book here, and you can find the first sixteen pages of the book here. Here is the Amazon page for the book as well.

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