The Ecclesiastical courts or ‘Bawdy’ courts as they were nicknamed due to the type of cases they often dealt with were in integral part of the court system governing our ancestors until the mid 19th century.
Historically the Church and its officers played an important and central role in society claiming “anything to do with life or death was within their provenance of judgement” such that the church and government administration had become intermingled by the end of the 6th Century.
They were created in 1072 by William the Conqueror and governed by Canon Law rather than common law, to ensure that matters which concerned the church – in respect of clergy, religion and morality, spiritual discipline or sin – were dealt with separately to the civil and criminal matters dealt with by the secular courts.
Their jurisdiction included ‘criminal’ matters (known as ‘Office Business’) and civil matters (known as ‘Instance business’), which included those causes between individuals involving a moral element such as marriage issues (separation/annulment/obtaining a licence); disputes regarding the legitimacy of a child; granting probate/letters of administration; sequestration and recovery of tithes, rates and offerings; removing from or depriving clergy of their position; granting faculties for physical alterations to churches; and non-litigious business such as granting professional licences (curates, preachers, churchwardens, parish clerks, schoolmasters, midwifes, physicians, surgeons, apothecaries, watchmakers, undertakers, notaries – anyone who held a position of influence on the lives of parishioners), marriage licences and the granting of probate or letters of administration.
Little wonder the records of these courts provide a huge scope for research with perhaps far many more of our ancestors being involved in such court proceedings than one might think either as plaintiff, defendant, witness, or court official.
Usually found in diocesion or local record offices, the records available, to a certain extent, depend on the court process by which a case was heard: the plenary procedure (instance and office cases) and testamentary procedure (probate case) were “conducted almost entirely through written documents” whilst those cases dealt with through the summary procedure (office cases) where conducted in open court with the defendant and any witnesses giving oral evidence.
There were several ways in which proceedings began:
- By churchwarden presentments at Visitations; or
- By the courts own motion, resulting from responses to the Articles of Enquiry sent out prior to a Visitation; or
- By an individual issuing a Libel (written statement of case) if the case was a civil one; or by a promoter (a third party) preparing a Querela/Informatio. If the case was a criminal one (whether plenary or summary procedure applied), the Judge would then prepare a citation or citation mandate which was ‘served’ on the Defendant. Where the defendant did not resolve the matter, the plaintiff, through his proctor would issue an Article.
In plenary proceedings the defendant would then submit his responsa personalia or personal written statement responding point by point to the Libel; in summary proceedings, the defendant was brought before the court to give an oral answer “as to the truth of the charges articled against him” under ex-officio oath (abolished in 1641).
If the defendant denied the allegations against him, in plenary proceedings, the plaintiff would then provide written interrogatories to be answered by witnesses in written depositions. The defendant then had the opportunity of asking written questions of the witnesses, by way of interrogatories and written replies. These could be followed by further additional positions in writing by both parties.
In summary proceedings, witness attestations for the prosecution were heard (from 1854 oral evidence could be heard from witnesses in ecclesiastical courts) after which the defendant could question the witnesses by way of interrogatories and replies (written) and produce witnesses of his own, known as compurgators, in support of his denial of the ‘common fame’ (this remained the case even after 1641 when the use of compurgators was technically abolished).
There would then be sentencing. In both procedures these were written: in plenary proceedings a definitive sentence was written (two documents were produced, one for each party) and read out in the presence of both parties; in summary proceedings the sentence was pronounced in open court, usually by a penance being imposed, which was then set out in a schedule of penance or confession or a decree of commutation of penance.
In a testamentary dispute the procedure was a little different. When a will was brought to court for the grant of probate, a caveat could be entered by anyone who had an interest in the estate of the deceased, such as a creditor. This would prevent probate been granted. An allegation could then be entered. The proceedings then following the plenary procedure with witnesses providing written statements and answering interrogatories of the opposing party. The final decree or ‘sententia’ would then be pronounced.
The above court records form the Cause Papers which were often bound together under the title of the case i.e. “Processus, X contra Y” although some repositories may have types of documents bound together rather than cause papers, i.e. books of depositions, boxes of libels, citations etc arranged by year.
The genealogical information available in any of the cause papers will differ depending on the type of case. It is however worth considering each type of court record alongside the different types of cases to understand their use in family history. It must also be remembered that until 1733, many court documents, particularly procedure records such as Act books, Cause books, Visitation records, and sometimes the libel, personal answer and depositions, were written in Latin adding a further difficulty in reading the records.
Churchwarden’s presentments and Articles of Enquiry and replies
Office or ‘criminal’ cases often came about through Churchwarden’s presentments when those who were suspected, either by his own knowledge or complaint made to him by parishioners, of committing a ‘criminal’ offence such as “fornication, adultery and bridal or pre-nuptial pregnancy whereby neighbours counted the months between the wedding and baptism, and eagerly reported any discrepancies” were presented to the church court, often at a bishops visitations. Such cases may also be brought before the court of the courts own motion as a result of replies to the bishops Articles of Enquiry sent out prior to his visitation.
Such cases may also include those who have entered into an irregular marriage, those who failed to attend church, those who failed to have a child baptised, those accused of fighting in church or in the churchyard (‘brawling’ cases) and pew disputes.
The Churchwarden presentments and articles of enquiry and replies can in themselves be as interesting as the court records themselves although they were largely of a standard format.
An Articles of Enquiry I found dated 1764 was a pre-printed list of 13 questions: the first 10 concerned the church property, services, registers and essentially the business and fabric of the church; only the last three concern the parishioners, benefactions and misconduct of church officials. In this example I looked at there were no concerns raised in the replies.
Similarly, a Churchwarden’s presentment from Ewhurst dated 1729, written in English, to the Bishop’s court held at Basingstoke, is again a typed standard form asking about the Church, the Ministers, Parishioners and Churchyard. We are told that the Minister “Does his duty as usual being presented for neglect several visitations past” and that in terms of Parishioners “None presentable as known”. Unfortunately the earlier visitation does not appear to have survived so I was unable to identify what the Minister had previously been accused of.
Libel/allegation/article; Citation/citation mandate; Responsa personalia
The libel in plenary proceedings or allegation in testaments proceedings, would include the name, place of residence and occupation of the plaintiff along with the name and place of residence of the defendant. The name and status of the judge is also given. It would then set out the allegations against the defendant.
The citation set out the name of the defendant, their place of residence, parish, county and diocese (to confirm the courts’ jurisdiction) along with a brief description of the charge against them and date when they are to attend court.
Examples of citations from the Consistory court of the Bishop of Winchester
There was a ‘brawling’ cases between Henry Arnold of Stockbridge, Curate and John Goddard of the same parish. The papers comprise: Citation dated 29 Jul 1791; Allegation dated 2 Dec 1791; Deposition – John Elton dated 11 May 1792; Deposition – William Tongues dated 11 May 1792; Response to allegations dated 25 Nov 1791; Deposition of Christopher Bishop dated 5 May 1792; Deposition of William Lawrence dated 4 May 1792; Articles promoted against the Def dated 7 Oct 1791.
Another case was a disciplinary case between James Atkins and Thomas Batcherlor of Hound, Churchwardens, and Richard Hickley of the same parish to compel Mr Hickley, who was a previous Churchwarden, to restore the ancient road and footways leading through the churchyard.
The documents include: Citation dated 23 Feb 1798 and sworn statement of service 23 Mar 1798; Deposition dated 4 Jun 1790; Allegation dated 27 Nov 1789; Citation dated 9 June 1789, There is then a later Citation to compel Mr Hickley to produce church books dated 23 Feb 1798; Personal Answer dated 7 May 1790. It would appear this second case in in respect of the payment of church rates and the parish accounts.
There was also a case concerning a tithe dispute (subtraction of tithe) between Richard Baker of Botley, rector and John Allen of Bishops Waltham in 1804. The documents only consist of two citations: an initial citation followed one Vis a modis because the defendant failed to respond. As there are no other documents it cannot be said with any certainty how the case concluded but it may be that Mr Allen simply settled the matter without need for further intervention.
Occupations were sometimes provided such as in the case found at Hampshire Record office from 1827 of a wife seeking a separation from her husband on the grounds of his adultery: Kezia Yalden v John Yalden. The Citation states “John Yalden of Winchester in the County and Diocese aforesaid Miller” it gives the time and date when he is to attend court, “to answer the said Kezia Yalden the wife of the said John Yalden in a certain cause of Divorce or separation from Bed Board and mutual Cohabitation on the grounds of adultery”. What this does not tell us is how long they had been married and whether they had children. Knowing their names, where they were from and the husbands occupation shouls help trace their marriage register entry and search for any children in the baptism registers.
This is at a time when divorce was only available to those the wealthy by Act of Parliament, the Church however was able to make provision for a legal separation but this did not mean the parties were legally free to remarry. If therefore either party were found to remarry, it is likely (unless the burial register entry was found for the other party) they were committing bigomy.
If a defendant could not be found, a further citation would be issued to be fixed to the door of the accused’s house and/or the church door, and in some diocese by having the citation read out in church during service. If the defendant did not respond they would be declared in contempt of court and if they still failed to respond they would be declared excommunicate. These records are unlikely however to provide any additional genealogical information that the original citation as they are essentially procedural documents.
When the defendant responded, they would provide a personal answer in which little genealogical information may be provided other than the defendants name. It was rare to find details such as place of residence, age, occupation specifically stated, however these may be evident from the content of the document, particularly where they were pertinent to the case. For example, in a marital dispute case (nullity, separation, alimony, marriage contracts etc) matters such as age, occupation, income, family status and other family members, may be pertinent to the case and matters which need to be accepted or denied. The answer was not a deposition, but a simple acceptance and/or denial of the allegations made, setting out the defendants’ version of events in support of a denial.
These initial documents therefore will provide basic genealogical information which would confirm an ancestor’s whereabouts at the time and a possible insight into their life and events pertaining to them depending on the type of case. They can start to ‘put flesh on the bones’ of names, dates and locations.
Depositions/Attestations/Interrogatories and replies
These documents (and in some cases evidence produced (see below) are likely to provide the most genealogical information although again this will depend on the type of case.
Witness evidence in all procedures before 1854 were taken in private and written down verbatim. They provide basic information about the witness including their name, occupation, place of residence, marital status if the witness was female. It is also likely to include details of how they know the parties, any relationship to them, the witness’s places of residence over several years and the length of time they lived at each, particularly if they lived in other parishes.
They may also include details regarding wealth, of both the witness and the parties involved, and any other relevant circumstances of the parties. Wealth was often asked about as an indicator of reliability. Other information could include: family history they know about the parties particularly in marital or testamentary disputes; land use, crop yields and livestock may be detailed in tithe disputes providing an insight into day-to-day life; details of an individual’s life, conduct, reputation, ‘gossip’ etc may be asked of a witness in cases such a defamation, heresy, clergy lapsing in duties etc.
Particularly in tithe dispute cases witnesses were often elderly and claimed to have lived in a place for many years (e.g. being over eighty years of age and having lived in the same parish for over 60 years). Such evidence can provide details of events such as births, marriages and deaths at times before parish registers or where they are missing. Their evidence often included details of the tithe custom going back several generations to the deponent’s father, grandfather etc providing their names and possibly details such as their occupation and place of residence if relevant.
In testamentary disputes, witness evidence may provide more details surrounding the death of the testator particularly of any illness which lead to the death. Where the case involves a question as to the testator’s capacity to make the will, witness evidence as to the testator’s soundness of mind at the time of making the will, would be taken from those who witnessed it. Because of the wide remit of testamentary disputes brought before the courts, witness evidence in testamentary disputes may provide more genealogical information than such evidence in other types of disputes often revealing details of three or more generations of a family to determine relationships and rights to inherit, such as a relative of a widow who had died without issue and had been left out of a nuncupative will or where a testator was unmarried and next of kin were distant relatives.
These can all provide not only genealogical information but social, local, land and property history, all putting flesh on the bones shedding much light into an ancestor’s life and persona. They may provide information, which is not found anywhere else, such as the deposition I found in which the deponent says “he saw the Defendant the said John Goddard take a paper out of his pocket & put on his spectacles & began reading it” very few records would record that a person wore reading glasses!. Although of course information in witness statements should be cross-checked with other records where possible. Whilst witnesses were required to sign (or put their mark) as to the truth of their deposition, it is unlikely they were infallible.
It should also be noted that witness evidence was signed by the witness with their signature or mark – an indicator of literacy. An illiterate witness would of course be unable to read the written statement, another reason to give caution to their contents.
Cases such as irregular marriages, coming before the court via Churchwarden presentments can include exhibits such as an extract from parish register where the parties married and signed by the incumbent or curate which confirms a marriage. This is particularly useful if the parish register itself has not survived.
Other exhibits commonly used as evidence which may be found amongst the cause papers or in separate exhibit/evidence books include deeds, extracts from baptismal registers, testimonials from the clergy, wills, inventories and/or probate accounts. I looked at an example of an Exhibits book at Hampshire Records Office which included an index at the front of the book.
The documents it contained were all handwritten copies of documents with many written in Latin, others in English, and some a combination of Latin adn English.
They included wills, copies of entries in a poor rate book, and numerous other documents many of which appear to be of the same sort, beginning “To Christian People to whom those present shall…”.
Also copied in to the book were witness statements or response to questions such as this example from the 4th August 1690 in which Thomas Croucher of Sheldon near Winchester describes the property he held at the time the poor rates were made and in which he names to two Churchwardens at the time (written in a mix of Latin and English):
Most of these records, including the index itself, were very difficult to read and I am unsure what most of the documents were, although names and locations can be identified in many of them so it may be worth taking some time to identify and translate them.
Such documents can support statements provided by the parties and witnesses lending weight to the accuracy of any genealogical information, but the exhibits themselves, also provide genealogical information and can further help build a picture of an ancestor’s life.
The written sentence in plenary proceedings, known as the definitive sentence, provide a narrative of the proceedings, the allegations, the depositions and evidence considered, the findings of the court and the sentence imposed. It is essentially a summary of the case and deliberations of the judge. It is unlikely to include any additional genealogical information, but where a sentence is the first record of a case found, then it will provide the names of the parties and any witnesses and should provide clues as to what other records may be available for the case.
Documents following sentence
Depending on the sentence imposed there may be other records which can provide yet further details which, may not necessarily provide genealogical information, but may shed further light on the life of an ancestor. Firstly, the ‘losing’ party would be liable for the costs and a Bill of Costs would be assessed or taxed and delivered to the paying party with a monition or warning to pay. Failure to pay could result in further proceedings which would be brought as an ‘office’ case details may then emerge about the financial circumstances of the paying party.
A sentence of excommunication required a statement of to be read out in church. This document will not provide any additional genealogical information than in the records detailed above, however it will provide details of the parties involved, type of proceedings and allegations and reasons for excommunication. If this is the first document found in an ecclesiastical case, then it will provide clues as to other documents and information which may be available.
Further, excommunication had legal implications which may explain why other, non-ecclesiastical court records, cannot be located for an ancestor, such as: a will which was rendered invalid by a sentence of greater excommunication and which may then result in a testamentary dispute on their death; or a burial record – a Christian burial could be denied whilst excommunicated.
An excommunicate could be absolved, anything up to ten years later in which case a statement would be read out in church. Copies of the two statements – of excommunication and of absolution – can be found amongst court registry papers or in separate excommunication books.
Records pertaining to other sentences such as monition, penance and suspension ab ingress ecclesiae which basically amounted to a temporary excommunication or sentences against clergy such as suspension (and sequestration), deprivation, deposition and degradation, will not provide any further genealogical information but will of course confirm the sentence was carried out and add yet further information to the ‘story’ of an ancestors life and may explain why an ancestor who was once a clergyman was later found to be, for example, an agricultural labourer (deposition and deprivation essentially stripping a clergyman of his livelihood and future as a clergyman).
These books record the progress of a case through the court but largely lack any detail save for the case name and some brief details, being procedural rather than descriptive, and thus lacking in genealogical information although they may provide clues as to documents available.
These record the daily business of the court, often with different books being used for different proceedings: Diocesan Act Book/Muniment book/Registers recording non-contentious business such as ordinations, grants of licences, commissions, resignations, revocation of appointments etc; Office Act book; and Instance Act book.
The entries generally provide only short summaries of each case dealt with in the day, providing names of parties, brief allegations, decision and sentence. They are therefore less use from a genealogical perspective but may provide a starting point for research, providing clues as to what other records there may be and where (dates etc).
The following examples are from the Diocese of Winchester, namely a Draft Act book (12 March 1743 to 7 July 1767) (HRO Ref: 21M65/A2/1) and an Act Book (14 Jul 1863 to 31 Oct 1876) (HRO Ref: 21M6/A2/7). In both cases they largely comprised lists of names of Deacons and Priests who were ordinated including the colleges they attended, licences to preachers:
They also included granting of licences to teach; resignations and deaths of clergymen alongside a new clergyman being appointed following their resignation or death:
The Act Book also included authority for the solemnisation of marriages in a new parish:
Along with the consecration of new and additional churches and burial grounds and use of school rooms for religion services during repairs to the church:
Other entries include the execution/granting of leases which provide property details as well as the names of the parties. Sometimes further genealogical details were provided such as status and occupation, as found in this example:
On May 3, 1744, in the Draft Act Book there is an entry for Nicholas Whitaker being appointed “Keeper vc of the Clinke Prison”
The Act Book also includes a record of the death of the Bishop – the Right Rev Samuel Lord Bishop of Winchester on 19th July 1873.
Ecclesiastical court records, whilst can be difficult to use, particularly prior to 1733 when they are most likely to be in Latin, can be a good source of genealogical information, particularly where parish registers and records may be missing or damaged, confirming where an ancestor lived and, depending on the type of case, details of their life at the time of the claim which may provide clues to other records which may be available, adding flesh to the bones of genealogical information.
In my next blog I will discuss what records may be available for pre 19th century research akin census substitutes.
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