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The Church of England Courts
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.
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.
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.
Hierarchy of the Church of England CourtsArchbishop'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.
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.
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 of England 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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