Church Courts in England and Wales

Most genealogists become familiar with the former hierarchy of church courts held by archdeacons, bishops and archbishops when searching for wills prior to 1858, for marriage licences and for bishops transcripts of parish registers They may also be vaguely aware that there were other courts held by some other ecclesiastical dignitaries and by the officials to whom they often delegated their authority.

However, many shy away from the other records generated by these courts, perhaps because the older books about them concentrated on the period prior to the English Civil War when they were probably at the height of their powers. They emphasize the difficulties associated with cribbed handwritings and the use, prior to 1733, of extensive Latin abbreviations.

There is, however, much to be gained from the records after 1733 where a knowledge of Latin is not needed.

Genealogical Value
Between 1300-1800 up to nine million cases were heard in church courts (Chapman 1997). They involved about 10% of the population and, as half of the cases were during 1450-1640 when parish register deficiencies give researchers headaches, the genealogist has a better than one in ten chance of finding their relatives through the court records. The 10% were not all the principles in the cases, 7% were deponents who gave evidence.

Genealogists are familiar with the probate, marriage licences and bishops’ transcripts involving church courts, but there is much more worth examining in these records. Nowadays we think of the church as dealing with sin, and civil courts with crime; but in former times many offences were regarded as ecclesiastical crimes and the church had a far greater role in regulating our ancestors’ activities, relationships and morals.

Over time and quite rapidly during the 19th century, many of the causes dealt with by the 365 ecclesiastical courts were transferred to civil courts. Consequently many of the lower level courts fell into disuse. The last mainstays were the diocesan responsibilities of probate and matrimonial causes transferred in 1858. Since then only strictly ecclesiastical matters have been dealt with by church courts.

Chapman has outlined the development of English ecclesiastical (canon) law from the four elements of civil, canon, common and statute law, with increasing authority in that order.

Bishops
From its earliest days the Church of England was ruled by bishops and their areas of jurisdiction were called dioceses or sees. They ordained priests and allotted them to churches which likewise came to be called parishes. The bishops oversaw the spiritual welfare of the people as well as the property and income given to the church and its clergy, enforcing the rules and regulations of the mother church.

To this end the bishops visited their dioceses on appointment and then again every three or four years. They did not go out to every parish but held court in one church for each group of three or four rural deaneries, each of which contained perhaps a dozen parishes. Before his ‘visitation’ the churchwardens of each parish in the diocese were given notice to submit a ‘presentment’ of things that needed attention.

The bishops’ courts came to be called consistory courts and were held regularly throughout the year as well as during visitations. The bishop did not necessarily preside in person and much of the business was carried out by his chancellor or, as mentioned below in the larger archdeaconries, by his ‘commissary’.

From the sixteenth century the churchwardens were provided with a printed list of ‘articles of inquiry’ to which they, as ‘presenters’, were required to give answers. These may not be very helpful, the words ‘all is well’ or ‘omnia bene’ often being used in reply. However, from the 1670s, the numbers of communicants and the names of the recusants and dissenters in the parish as well as details of schools and charities often appear. Bishop Turner, of Ely, for instance, in 1686 asked for a census of people in his dioceses over the age of sixteen. Sadly, in this case only the statistics and not the names survive. From the early and mid-eighteenth century these visitation articles of inquiry may be much more detailed and informative. A few, for example the diocese of Oxford in 1738 and 1854, the diocese of Exeter in 1821, and the diocese of Yorkshire in 1743, have been printed.

Archbishops
In England and Wales two leading bishops developed at York and Canterbury with powers to supervise their fellow bishops and to hear appeals in disputes. The areas of jurisdiction of these ‘archbishops’ were called ‘provinces’ and the province of Canterbury came to include all Wales (until the Archbishopric of Wales was created in 1920), the northern province of York covering the counties of Cumberland, Durham, Lancashire, Northumberland, Nottinghamshire (prior to 1839), Westmorland and York, and that part of the Cheshire north of the River Ribble.

The archbishops had several courts. Each had an audience court that heard cases against the clergy and each had an appeal court that heard cases of every description referred from the bishops’ and other lower courts.

Both archbishops also had a prerogative court which proved wills but also heard cases about the validity of wills that were in dispute. Cases about the interpretation of wills usually went to the Court of Chancery, though it was not uncommon for cases about a will to run in parallel in both a prerogative and the Chancery Court.

Archdeacons
Some dioceses were very large and in these assistants to the bishops developed, called archdeacons. With well-defined powers, they helped to supervise and make inquiries in their areas. They visited their archdeaconries once or twice a year and most held courts just like their bishops, except when the bishop was making his visitation when their powers were ‘inhibited’. Not all archdeacons held courts; those in the diocese of Carlisle, for instance, did not have that power. It was at their Easter visitations that the Archdeacons probably collected the annual Bishops Transcripts of parish registers for forwarding to their bishops.

The court of the archdeacon, usually presided over by his official, sat every three weeks or so, in the chancel of one of the main churches in his archdeaconry. The Archdeacon of Bedford’s court, for instance, was usually held in St Paul’s church in Bedford where the records were kept in a room over the south porch.

Commissaries
In some very large dioceses, such as London, Lincoln and Norwich, the bishops also appointed commissaries to help with the administrative work in their archdeaconries. These people held ‘commissary courts’ and had defined areas of jurisdiction but their records are often inextricably mixed with those of the archdeacon himself, as they frequently employed the same presiding ‘official’.

Deans, Canons and Peculiars
The older cathedral churches surprisingly retained considerable immunity from the jurisdiction of their bishops. The deans of these cathedrals (sometimes, but not always, working with their canons ‘in chapter’), and even some of the cathedral’s lesser officials, such as the prebendaries, also held courts and visited the manors from which they derived their incomes and had been endowed. Chapters of canons of the ancient minsters, such as those at Beverley, Ripon and Southwell, were similarly privileged, as were those of the Royal Free Chapels, as at Windsor.

These and a number of other officials who held courts for particular places or groups of places, all of which claimed exemption from the jurisdiction of the bishops, were called ‘peculiar jurisdictions’ or ‘peculiars’. Some peculiars were well organised, but some met very irregularly and made a complete hash of keeping their records.

Boundaries
After the Reformation, Henry VIII created in 1541-2 the new dioceses of Bristol, Chester, Gloucester, Oxford and Peterborough (and the short-lived diocese of Westminster) but there were no later major changes until a re-arrangement in 1836-7.

Some details of the geographical jurisdiction of all the above mentioned courts can, because one of their main activities was the proving of wills, be found in the standard textbooks on wills. The Phillimore Atlas and Index of Parish Registers (Chichester, England; Phillimore &amp; Co Ltd, 2003) [FHL book 942 E7] conveniently shows the parishes in each jurisdiction as they were between 1542 and 1836 and the online ‘England Jurisdictions, 1851’ accessed at http://maps.familysearch.org shows the situation at that time.

Church Law
The rules and regulations of the Church of England, as enforced through these courts and by visitation of their officials, are based on Roman canon law as developed and codified in the fifteenth century. After the Reformation church law was further modified by Royal Injunctions of 1559, by the Canons (principally) of 1603 and 1662, and by a growing number of Acts of Parliament. Since 1920 church law has been supplemented by the published ‘Measures’ of the Church Assembly which became the General Synod of the Church of England in 1970. These Measures, having been laid before both Houses of Parliament and given the Royal Assent, have the same force as an Act of Parliament.

Church law, which includes also the rubrics of the Book of Common Prayer and the Thirty-nine Articles of the Christian Religion, was set out in a number of reference works, most importantly by Edmund Gibson in his Codex Iuris Ecclesiastici Anglicani (1st ed. 1713) [not in FHL] and by Richard Burn in his Ecclesiastical Law (1st ed. 1763) [not in FHL].

Church Court Cases and Procedure before 1641
Because of the many cases of sexual misconduct and defamation which the church courts heard, they have become known as the ‘bawdy courts’, but there is much in the records that is of great value genealogically and which deserves wider attention.

The matters ‘presented’ by the churchwardens and their sidesmen at the visitations of archdeacons and bishops touched on many aspects of parish life. Thus attendance at, and especially behaviour in, the church or churchyard, the conduct of parish officers, matters connected with the church fabric, furniture and its maintenance, parish dues and tithes, were considered, as well as all aspects of betrothal, marriage and wills. Offences such as libel, slander, defamation, bastardy, bigamy, incest and adultery were also dealt with.

In the sixteenth century the Act Books kept by the archdeacon’s clerk would show, in a typical example, that some thirty per cent of his cases would be to do with wills and administrations, sixteen per cent with non-payment of tithes, eleven per cent with the non-presentment or concealment of offences at and absences from the archdeacon’s visitation, nine per cent with defamation and libel, eight per cent with non-payment of fees, four per cent with working on Sundays or, more often, on holidays, and the remainder to do with licences for curates, preaching or teaching, and with offences committed by the clergy, parish officers and the laity. However, in about twelve per cent of the cases the actual offence would not be specified in the record.

The matters dealt with by the church courts changed slowly following the Reformation in 1530 but it had no effect at all on the forms of the records maintained. Many of the semi-secular cases which the courts would have dealt with in the sixteenth century passed, however, to the courts of Quarter Sessions in the seventeenth century.

Following presentment by the churchwardens or constables of the appropriate parish the accused person was then ‘cited’ to appear. This was done by notice sent to the clergy and read out in church. The notice was endorsed to that effect and returned to the bishop. The witnesses made depositions on oath that they might purge the accused by proving his or her innocence. Failure to appear usually involved excommunication, notice again being sent via the clergy, read out, sign and returned.

The church courts were abolished in 1641 and some losses in the earlier records then occurred. Some of the pre-1641 Act Books seem to have been preserved merely for use as precedents and the subsidiary papers do not often survive for this period.

Church Court Cases after 1661
Although the church courts were restored in 1661, their authority was never quite the same again. By the end of that century, with the continued decline in the power of the Church of England, there were only a few matters which came regularly to their attention. Aside from the regular probate of wills and the granting of marriage licences about a third of all the cases concerned probate disputes, fifteen per cent matrimony, fifteen per cent dilapidations, faculties, pews, tithes, rates and fees, ten per cent defamation, and the remainder mostly concern the clergy, churchwardens and the misbehaviour of parishioners in church and matters arising from the work of the court itself. The presentments of non-attenders at church down to about 1760 may be a valuable source of information about nonconformists and Catholics in each parish.

In this later period, although again the Act Books remain the chief guide to what was happening, there may be digests of presentments (files made up by parishes in deaneries for each visitation) and the important depositions of witnesses which show age, occupation and length of residence, are more likely to survive.

Some cases which appear on the surface to be merely of a technical nature, for example those to do with tithes or with the pews in the church, may produce whole groups of elderly local witnesses. A dispute about the right to nominate a curate at Saltash which went to appeal in 1752, for instance, produced twenty such witnesses. Tithe cases may be of value in tracing nonconformist families and those to do with seating in the pews may provide details of old family rights and ancestral claims.

The records of the various church courts are usually with the other diocesan records in the appropriate county record office. The existence of indexes or calendars varies enormously from place to place. If possible depositions are to be found much searching of files may be required. At all times cases dragged on, often with no clear purpose or stated outcome.

Decline in Nineteenth Century
In the nineteenth century the powers of these courts were slowly transferred to other courts or abolished. Disputes over tithe ceased with its virtual abolition in 1836, cases of defamation in 1855, probate and divorce were transferred to the Probate, Divorce and Admiralty Division of the High Court in 1858, cases of brawling in church ceased in 1860 and disputes about church rates in 1868.

The courts had long since ceased to regard themselves as the guardians of public morality let alone as a means of suppressing dissent. All that remains today beyond the ordinary business of the issuing of marriage licences and faculties for alterations to and removals from churches and churchyards, are matters relating to the behaviour and competence of the clergy themselves.

Behaviour
Behaviour both inside the church, in the churchyard, and in general were disciplined by church authorities. Some of the specific causes included the following:

Brawling in Consecrated Precincts
Quarrelling and brawling in a churchyard, or using force or creating a disturbance in church during divine service were offences handled by church courts until 1860; they could result in excommunication.

Laying violent hands on a clergyman
Attacking a clergyman while taking a service was an offence handled by church courts until 1860.

Blasphemy
This can mean talking impiously or uttering profanities and was prosecuted. A Quaker, James Naylor, was whipped, branded and had his tongue bored for his views, regarded as blasphemy in 1656/7.

Defamation
Defaming or insulting a neighbour was not taken lightly and causes for defamation were brought to church courts until 1855 when it was abolished as an offence.

Contumacy
Insubordination to a court order, such as failing to appear after being cited three times, was grounds for excommunication.

Perjury
Lying under oath, continued as an ecclesiastical offence until 1823.

Penalties
Minor offences received merely a verbal (ad)monition or reprimand in the court, but those who committed more serious offences, such as incest or extra-marital intercourse, were required to perform either private penance in the presence of the incumbent and churchwardens only, or public penance during morning service, at which repentance was expressed. These punishments might be commuted to or accompanied by a fine. Fines and corporal punishment were abolished in 1641 and public penance (especially that in a white sheet) was unusual after the late seventeenth century though it was used in some areas in the eighteenth century.

Failure to perform a penance or to appear in court when summoned on three occasions might be published by lesser excommunication, which forbade access to the church and its sacraments, or by greater excommunication, which deprived the offender of any association with other members of the Church of England. The excommunicate would then appear at the next court and pray for absolution which was automatically granted on payment of church fees. Before 1813 excommunication also meant that you could not serve on a jury or be a witness in court or bring actions to recover property. Some nonconformists for whom excommunication was of little or no concern remained in that state for many years.

Imprisonment
In the final extreme the bishop’s court could order imprisonment though the church courts could not themselves order this after 1641. When an offender remained contumacious for forty days after excommunication, the church authorities could signify the fact to Chancery. A writ of significavit or de excommunicato capiendo was then issue to the sheriff of the county as his authority to seize the offender. There are 217 files of these writs from 1220 to 1611 at The National Archives (C 85). Twenty-seven bundles of later significations, running on into Queen Victoria’s reign, are among the Cursitors’ Records (C 207). The earlier ones only give the name of the offender though occasionally the offence is added.

This type of writ was abolished in 1813 and replaced by that of de contumace capiendo. Although these writs were issue by the Chancery they were returned to the King’s Bench, being enrolled before 1844 on the Controlment Rolls (CB 29) and then separately (KB 5). The former are arranged in rough geographical order corresponding to the assize circuits. Their number is not great.

Appeals
As mentioned above appeals from the various church courts in the province of Canterbury might be made to the Court of Arches and from those in the province of York to the Chancery Court of York.

The cases in the Court of Arches are detailed in Jane Houston, Index of cases in the records of the Court of Arches at Lambeth Palace Library 1660-1913 (British Record Society, Index Library, vol. 85, 1972) [FHL book 942 B4]. These records have been published on 13,257 microfiche (1975) [FHL microfiche] and are available in some large libraries. The records of the Chancery Court of York have not been indexed in print.

After 1559 final appeal might be made from these courts to the High Court of Delegates, the records of which are now at The National Archives. The cases heard there are few in number. Those to do with probate only, 1651-1858, are indexed in The Genealogist, New Series, vols. 11 (A-N) and 12 (O-Z).

Acknowledgment
This article has been adapted with permission from Anthony Camp’s article ‘The English church courts and their records’ in Family Tree Magazine (U.K.; http://www.family-tree.co.uk) vol. 15, no. 9 (July 1999).