About Church of England Courts
General background
These courts date back to the pre-reformation period but their records are
largely of use to the family historian from the 16th to 18th centuries.
Alongside the criminal and civil courts and the courts of equity of this period
was a whole network of some three or four hundred ecclesiastical courts whose
activities affected many aspects of our ancestor's lives. Just as we have a
hierarchy of courts from the local magistrates' court to the county court, to
the Central Criminal Court to the Courts of Appeal there was a similar
hierarchy of Church Courts. Until 1858 church courts heard many matters now
regarded as the province of the secular authorities, the best known of which
being probably the probate of wills and the granting of administrations.
However, church courts also heard cases of defamation and divorce as well as
matters more strictly concerned with church affairs. Sometimes these courts
were known as the "bawdy courts", as the subject matter was quite
often sexual in nature.
Archbishop's or Prerogative Courts
At the top of the pyramid were the courts of the Archbishops - the Provincial
courts of Canterbury and York with the Court of Arches and the Court of
Delegates (the supreme church court) as the courts of appeal. The court of the
Archbishop of York within the Province of York was known as the Prerogative
Court of York. Within the Province of Canterbury, and senior to York, was the
court of the Archbishop of Canterbury known as the Prerogative Court of
Canterbury.
Bishop's or Consistory and Commissary Courts
Beneath the Archbishops' Courts were the Courts of the Bishops. These covered
the Diocese and were known as Consistories; in the case of very large Dioceses
the court's jurisdiction might be divided into smaller areas and were known as
Commissary Courts.
Archdeacon's or Archdeaconry Courts
Below the Bishops were the Archdeacons, whose courts - the Archdeaconry Courts
- were usually but not always the first local courts to deal with matters.
Peculiars
Occasionally some clergy held their own courts, usually as residual heir of a
pre-reformation abbey that had reserved the rights to deal with the local
community in matters spiritual. In some cases those who had assumed the abbey
or monastic lands after the dissolution of the monasteries retained these
ancient privileges. These rights might fall on the Lord of the Manor or indeed
any other institution that had inherited the monastic prerogatives, such as a
University or Cathedral. In some cases the privilege of the court might fall on
the Dean and Chapter of the local Cathedral or it might be assumed by Royal
Estates. However these rights came about, these local exceptions, usually
independent of the local court of the Archdeacon, were known as Peculiar
Courts.
Activities of the Courts
Ecclesiastical Courts dealt with a variety of matters but these fell into two
major types, office cases and instance cases.
Office Cases
Office or Official Matters were brought before the Courts by its officers,
Churchwardens, Summoners or Apparitors, etc, and dealt with disciplinary
matters relating to the clergy, the Church's officials and parishioners. The
Church concerned itself with the morals of the community and instigated cases
on defamation, some sorts of slander, unseemly behaviour in church, working or
rowdy drinking on a Sunday, neglect to have children baptised, simony, heresy,
witchcraft, usury, adultery, fornication, incest and bearing a bastard. It was
the preoccupation with matters of morals that caused the ecclesiastical courts
to be known as the Courts of Scolds or Bawdy Courts.
However, the courts also took seriously the matters of sacrament, ensured that
marriages should comply with Canon Law, and that the last wishes of the dead
were adhered to. Hence family historians most commonly know the courts as the
institutions that dealt with wills and all matters testamentary and as the
source of marriage licenses and associated documents. Other licences were
issued to professionals who offered the sacraments, such as the clergy and
midwives; to teachers to ensure adherence to the teachings of the church; and
to physicians.
Instance Cases
Ecclesiastical courts also heard cases where two or more parties might be in
dispute over matters such as deformation, arguments of estates and probate
matters, breach of promise, criminous conversation (adultery or fornication),
or other matrimonial matters including separation and divorce. In instance
cases where there were various parties involved the records will include
detailed witness statements, known as depositions: responses to questions,
known as interrogatories; evidences; decisions made known as sentences or
decrees; excommunications; absolutions; bills of costs; prohibitions preventing
further action in the ecclesiastical court and transferring to the civil court.
These documents are generally to be found in diocesan or county record offices.
They are difficult to use, often in Latin before 1733, and are rarely indexed.
However where they can be used they are often of great value as they are a
source of detailed information about the parties and the witnesses involved.
Aside from the regular granting of wills and marriage licences, about a third
of the cases before church courts would have concerned probate disputes, 15%
matrimony, 15% dilapidation's, faculties, pew and tithes disputes, 10%
defamation and the remainder mostly concerned the behaviour of the clergy and
other church officers. Gradually the influence and jurisdiction of the local
church courts was eroded as their business was drawn by the more efficient
courts in London.
London Church Courts
The City of London and the county of Middlesex were in the Province of
Canterbury and the Diocese of London and the Archdeaconries of London and
Middlesex. The various jurisdictions within this Diocese are probably more
complicated than anywhere else in the country and the searcher is advised to
examine records of all the major courts, split as they are between several
record offices.
Generally speaking the Bishop of London's records, within the Consistory of
London and the records of the Archdeaconry Court of Middlesex are held at the
London Metropolitan Archives.
The records of the Bishop of London within the Commissary of London (London
City Division) and the Archdeaconry of London are held at the Guildhall
Library.
Several city parishes fell within Peculiar jurisdictions such as that of the
Dean and Chapter of St Paul, the Deanery of the Arches and the Deanery of
Croydon (both peculiars of the Archbishop of Canterbury), or the Royal Peculiar
of St Katherine by the Tower. Westminster parishes fell under the Royal
Peculiar of the Dean and Chapter of Westminster who had inherited the
pre-reformation rights of the Abbot of Westminster.
Note should be made that the Bishop of London's jurisdiction stretched beyond
the City and Middlesex into parts of Essex and Hertfordshire and cases
concerning these areas can be found in its records.
Doctors' Commons
The Court of the Bishop of London sat in Doctors' Commons near St Paul's
Cathedral as did the registries of several other Church Courts. Amongst them
were the offices of the Bishop of Winchester, the Archdeacon of Surrey as well
as the Archdeacons of London and Middlesex, the Deans and Chapters of St Paul's
and Westminster, and many others. Wills were proved and the Vicars General of
the Bishop of London and the Archbishop of Canterbury also issued marriage
licences. Here was heard the various disputes that caused the courts such
infamous repute. The Courts within Doctors Commons were very much associated in
the public mind with the making and unmaking of marriage from the 17th
Centuries. Gradually the London Consistory Court assumed a virtual monopoly in
matrimonial suits and became the most important matrimonial court for the whole
of the country. It became the court of first instance for most matrimonial
cases with only the Court of Arches and the Supreme Court of Delegates as the
highest courts of appeal. The procedures of the courts were very different from
the system we know today. The parties in each case provided witnesses to
attempts to persuade the court of their case (or defence). These witnesses were
known as deponents as their evidence was given not orally but by written
depositions taken in response to written lists of questions (interrogatories)
drawn up in advance.
The name "Doctors' Commons" goes back to the 15th century. Advocates
(equivalent to modern solicitors) were also doctors of law (having obtained
doctors' degrees). They formed an association called the College of Advocates
which was based in a building which became known as Doctors' Commons. The
College then moved to an area, near St Paul's Cathedral, close to many church
courts and to civil lawyers' chambers; the name Doctors' Commons then became
used for the whole area.
Further reading on Church Courts
Colin Chapman Ecclesiastical Courts, their Officials and their Records,
1992
Jane Cox Hatred Pursued Beyond the Grave. Tales of our Ancestors from the London
Church Courts, 1993
Lawrence Stone Road to Divorce: England 1530-1987 [studies in marriage
litigation in the Court of Arches and the London Consistory Court], 1990
Anne Tarver Church Court Records. An Introduction for Family and Local
Historians, 1995
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