Church Courts

Introduction

From the secular perspective of the 21st century, it is difficult to appreciate how much the church dominated the lives of our ancestors. Family historians will have come across the records of church courts before, as these were the authorities that issued marriage licences and probated wills before 1858.

But there are many more records in the diocesan archives that are fascinating. Thankfully it is getting easier to locate ancestors in the church courts as many are being indexed and catalogued onto the Access to Archives website.

So if the parish register suggests a child is illegitimate, or the vicar makes a comment about your ancestor in the margins, see if a dispute occurred in the church courts.

Church court records are largely of use to the family historian researching the 16th to 18th centuries, although some of their major functions continued into the middle of the 19th century until they were assumed by the civil courts.

The church courts throw valuable light onto the family lives of our ancestors, who often got up to all sorts of unmentionable activities. These courts often dealt with moral matters and cases of sexual impropriety and are so rich in wicked stories that they earned the nickname 'bawdy courts'.

It has been suggested that an appearance in the church courts of the 18th century would be akin to points on your driving licence today. Appearances before a court were so common that some dioceses pre-printed schedules of penance for fornication, leaving spaces for the names of the parties to be entered in.

The witnesses who gave evidence about their neighbours before the courts also gave important information about themselves, including their names, ages and all the places they have lived in.

In this period could be found a whole network of some three or four hundred ecclesiastical courts whose activities affected many aspects of our ancestors' lives. Just as we have a hierarchy of courts from the local Magistrates' Court to the County Court, the Central Criminal Court to the Courts of Appeal, there was a similar hierarchy of the church.

Courts

Archbishops' or Prerogative Courts At the top of the pyramid were the courts of the Archbishops of York and Canterbury known as 'Prerogative Courts'.

Bishops or Consistory and Commissary Courts Next came the Courts of the Bishops. These encompassed the bishop's diocese and were known as Consistories or, 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, known, as Archdeaconry Courts were usually, but not always the first local courts to deal with matters.

Peculiars Certain parishes or groups of parishes usually independent of the local court of the archdeacon were known as 'Peculiar Courts'.

Ecclesiastical Courts

Ecclesiastical Courts dealt with a variety of matters which fell into two major types.

Official Matters

'Office' or 'official matters' were brought before the courts by its officers, churchwardens, summoners or apparitors 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 types of slander, unseemly behaviour in church, working or rowdy drinking on a Sunday, neglecting 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'.

Here are some examples of such proceedings.

The curate of the chapel of Sawley was brought before the court of the chancellery of the archbishop of York accused of neglecting his duty. There is a list of all his parishioners who verified his negligence in the witness statements.

William Kissack was brought before the Conistory Court of the Bishop of Sodor and Man (on the Isle of Man) accused of incest and adultery with Ann, his wife's sister's daughter (his niece by marriage). He admitted to his sins and begged the forgiveness of the court.

There are several instances of the Kissack family in the records of the Consistory of Sodor and Man. A family argument saw Isabel Kissack accused of being a scold, having behaved 'in a base and bawdy manner' to Alice Kissack, calling her 'the wife of him that had the stone privy member'.

The courts also took seriously the matters of sacrament and ensured that marriages should comply with 'canon law' (ecclesiastical law applied within the church) 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 licences and associated documents.

Other licences were issued to professionals who offered the sacraments such as the clergy and midwives and 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 defamation, arguments of estates and probate matters, breach of promise, criminous conversation (adultery or fornication) or other matrimonial matters including separation and divorce.

Here are some examples of 'instance cases'.

Richard Eaves brought an action in the Consistory Court of Lichfield against his wife Sarah, charging her with adultery. He prayed he may be divorced and separated from the bed and board and mutual cohabitation with the said Sarah. He also entered into a bond for £500 which would be forfeited if he remarried within her lifetime.

The vicar of Seasalter presented Robert Maksted and Anne Harris to the Consistory Court of Canterbury accusing them 'not upon light surmise but upon the most violent presumptions of cohabiting together in a criminous conversation' and 'nothing but occular inspection could enforce a stronger belief' of their behaviour.

Finding the records

These documents are generally to be found in diocesan record offices (which are often, but not always the county record office). 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.

Find out more

Books

Ecclesiastical courts, their officials and their records by Colin Chapman (1992)

Hatred Pursued Beyond the Grave. Tales of our Ancestors from the London Church Courts by Jane Cox (1993)

Road to Divorce: England 1530-1987 [studies in marriage litigation in the Court of Arches and the London Consistory Court] by Lawrence Stone (1990)

Church Court Records. An Introduction for Family and Local Historians by Anne Tarver (1995)

About the author

Else Churchill has been the Genealogy Officer of the Society of Genealogist since 1998. Formerly the Librarian of the Institute of Heraldic and Genealogical Studies, Else has worked for the SOG since 1994. Her main interests lie in the 17th century and sources for people who lived through the English Civil Wars but she also specialises in using the records of the Victorian censuses.