England Church Court Cause Procedures (National Institute)

Cause Procedures
Ecclesiastical courts dealt with three groups of causes (undisputed causes, and civil and criminal suits), using three different procedures (plenary, summary and testamentary).

Non-Judicial Business
Those issues having no disputes, arguments or appeals, such as regular probate and issuing licences, were registered in muniment books, registers or act books, together with a fiat (authorization to act) if a surrogate performed the job. Fees were recorded separately in account books.

If there was a dispute of any kind then notes were made in an act book (liber actorum) and each party would find an advocate or proctor to take their case. These would be named in Letters of Proxy and the suits could be of one of two kinds:

Civil Suits (or Instance Cases)
These were between two parties (ad instantiam partis) and involved moral principles such as payment of church rates, or changing seating in a church.

Criminal Suits (or Office Cases)
These were promoted by the office of a judge (acting for a bishop) and involved spiritual principles where the sinful offender needed to be punished with a public reprimand and, hopefully, reinstated for the salvation of his soul (pro salute animae).

Plenary Court Procedure
Plenary procedure was used in all civil suits and some criminal ones and has the advantage for researchers that the cases were conducted almost entirely through written documents. A brief summary of events follows:


 * 1) The judge decreed a citation either from a complaint from a plaintiff’s advocate in a civil (instance) case, or directly from the court in a criminal (office) case.


 * 1) The court apparitor sent the citation to the accused or defendant, usually via his parish incumbent, demanding his appearance in court on a specified date to answer the charges. This is called citing.


 * 1) The court officials decided how the case should proceed and when. The accused or defendant had to respond point by point to the charges. The plaintiff’s first pleading was called the libel to which there may be a personal answer. He provided witnesses who were questioned using written interrogatories and their replies were written down and termed depositions. Further arguments for each side could be given, and any supporting documents were filed as exhibits. The accused or defendant may have accepted or denied the facts set out in the libel, but either way the plaintiff’s advocate still had to prove them. The depositions in plenary procedures tend to be even more informative than those for summary procedures (see below), giving a broader picture of an individual’s activities.


 * 1) The judge pronounced a definitive sentence, and also entered ataxed bill for the fees and how they should be paid.

Summary Court Procedure
Summary procedure was used for criminal suits against lay persons who had committed moral offences and the proceedings were in open court. Many arose from presentments during visitations and were recorded in the visitation book (liber compertorum) rather than in an act book. The procedures entailed:


 * 1) A citation was issued by the judge.


 * 1) The first plea or case for the prosecution (equivalent to a declaration in common law courts, or a bill in equity courts) was termed articles.


 * 1) Before 1641 if the accused denied the charge and he could produce five or six compurgators to swear his innocence on oath, the case was dismissed. He could also be declared innocent without compurgators if the court accepted his denial. After 1641 the use of compurgators was abolished for criminal cases and the reply by the defence was heard by the judge in open court.


 * 1) The attestations (or depositions) of witnesses for the prosecution were followed by interrogatories by the defence; from 1854 oral examinations in open court were allowed. The attestations/depositions are extremely useful as they may give the deponents name, age, sex, marital condition, occupation, length of residence in the place about which he is giving evidence, his present abode (if different), and sometimes other residences and information back to his birthplace.


 * 1) The judge pronounced sentence on the accused or defendant, usually by imposing a penance, and entered his taxed bill for the fees.


 * 1) A schedule for penance or confession was drawn up and sent to the accused’s parish incumbent who countersigned it when the penance had been performed, then returned in to be filed at court.

Testamentary Court Procedure
The next-of-kin to the deceased searched for a will and the executor/executrix took it to an ecclesiastical court which first granted a caveat so that all relatives and creditors would be aware of the impending probate. At an appointed time the court passed a probate act (ap)proved or granted probate) and this was recorded in the probate act book and often at the bottom or on the dorse (reverse) of the will itself. The information in the probate act sometimes has more information about the testator than he himself gives in his will.

Occasionally a probate was given for part of an estate and this was recorded as a limited probate. When two separate executors obtained grants of probate this was termed double probate. Where a will was invalid, or could not be located, then the next-of-kin or the main creditor was granted letters of administration (abbreviated to admon). A named executor could refuse to act and a renunciation would be recorded and in this and other cases where executors were not named or unavailable, then an administrator was granted letters of administration with will annexed.

There were 365 ecclesiastical courts in operation before 1858 (Wagner), but for any one person a search would normally involve looking in a maximum of about six of these. The key is to know where to look and be organized in your search. A man’s will was probated according to where he had property (including debts!), which was not necessarily where he lived or died. The location was described in accordance with ecclesiastical boundaries, the same used with parish registers.

Finding a will entails finding the court where it was proved. It helps to understand the levels of seniority of authority of the ecclesiastical courts. To find out which court had probate jurisdiction for any parish look in Humphery-Smith’s Atlas (The Phillimore Atlas and Index of Parish Registers. Phillimore, Chichester, West Sussex, England, 1995).

The parish boundaries maps are colour-coded according to the ecclesiastical jurisdictions. These maps are also published separately in a larger format by the IHGS (Institute of Heraldic and Genealogical Studies).

The normal rules for probate jurisdiction said that if a man had bona notabilia (literally considerable goods, meaning personal estate valued at £5 or more, £10 in the dioceses of Lincoln and London), then probate would be sought in the normal chain of courts.

Some examples from testamentary courts follow below.

Chart: Citation in Testamentary Court

Chart: A Contested Will

Guardianships
Various documents regarding the election of guardians and their bonds of acceptance, with the intention of safeguarding the minor’s estate are to be found in testamentary court papers. They may be called tuition or curation bonds or acts of guardianship, for example those on films 0383527-8 concerning Worcestershire 1685-1814. A series showing the endorsement on the outside of the folded papers, the election and the acceptance bond are shown below.

Chart: Guardianship Election and Bond Archdeaconry of Dorset 1755

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