Consistory court cause papers
- Located At: Staffordshire Record Office
- Document Reference Number: B/C/5 & LD412 (part)
- Date: 1534-1899
- Level: Series
- Description: Lichfield Consistory Court cause papers (B/C/5) are the papers produced for individual court cases (or causes) held at the Bishop's court in Lichfield Cathedral. The documents are filed in annual bundles. A small quantity has survived for the period 1534-1589 and for 1641-1660, but otherwise from 1590 onwards there is a substantial survival down to 1900. As in the rest of the country there is a hiatus in the records during the Civil War and Commonwealth period. At least form the 1650s, the central court formed out of the Prerogative Court of Canterbury continued to deal with probate right through the Commonwealth period until the consistory court resumed activities in 1660 or 1661. The papers in the period 1641-1660 appear to be records kept by Simon Martin [Marten], notary public of Lichfield, of proceedings of commissions appointed to investigate testamentary cases. Properly speaking they are not papers of the consistory court but have been filed in the series at a later date. Through the 19th century the court gradually lost responsibility for areas of business so that by the end of the century it was only dealing with faculty and clergy cases, which is still the court's business today. Apart from the main case papers (see below for document types) other documents, such as itemised schedules of tithes claimed, churchwardens' accounts, inventories of the goods of a deceased person or copies of newspapers, were deposited as evidence. Occasionally, earlier documents were submitted to the court: for instance, 15th-century account rolls of Lilleshall Abbey (Salop) used in an 18th-century case.
Until the mid-19th century, ecclesiastical courts exercised a wide-ranging jurisdiction (see below for case types). As all court business was conducted on paper a full reconstruction of the case is often possible. Where papers are missing it is possible to follow the stages of a case through the court books (B/C/5/1).The colourful language of the slander cases and the salacious detail of the witness statements in immorality and matrimonial cases generated the popular contemporary term 'bawdy courts'. For background information about the case papers and short articles about Lichfield cases see the Lichfield Bawdy Courts blog: https://lichfieldbawdycourts.wordpress.com
Case Types
Broadly speaking, cases were either office, instance or office promoted. Office cases were brought by 'the office of the lord bishop', the ecclesiastical equivalent of criminal jurisdiction (moral offences, non-attendance at church and disobedience to official policy, for example by Puritans). Instance cases brought 'at the instance of' a private person were equivalent to civil jurisdiction (tithe, matrimony, defamation and probate disputes being the main case types). Office promoted cases were office by nature but were promoted by a private person who usually had to enter into a bond to indemnify the bishop for costs incurred if the case failed. The main types of case were:
Church seat cases: instance cases concerning the right of a person to sit in a particular seat or pew. The documents often describe how right to the pew has come to the plaintiff or defendant from their ancestors. Disputes over pews were frequent until about 1860 when they diminished as private pews became less common. These disputes were categorised by the court as 'intrusion into seat' cases.
Clergy cases: office cases brought against clergymen but very often at the promotion of churchwardens or an aggrieved parishioner. Many cases relate to the mode of life of a curate, vicar or rector with standard accusations of fornication, drunkenness, gaming and frequenting alehouses on Sundays. Accusations might also be made about the conduct of their wives (see B/C/5/1606/2) or failure to perform religious duties. Some concern doctrine: denial of the need for infant baptism, not using the book of common prayer, failure of wear a surplice. Other clergymen are accused of sympathy towards recusants. These are all classed broadly as discipline cases. Other sub categories are: clandestine marriage (ie performing marriages contrary to the complex rules of the established church); disputed vicarage/rectory (where two clergymen claim to be the rightful vicar/rector); failure to provide a curate; failure to pay fees such fees at the visitation of an archdeacon or tenths to the king.
Defamation cases: instance cases where the plaintiff accuses the defendant of slander and therefore causing loss to reputation. The words of the slander are set out in the libel document at the beginning of the case and often are developed in more detail in the witness depositions. The vast majority of the cases are about sexual slander. In this category there are also office cases regarding slander of clergymen. The jurisdiction for defamation was transferred in 1855 to civil courts.
Faculty cases: these are applications brought to the court requesting a faculty for alterations to the fabric or furniture of a church. In the 17th and 18th centuries faculties were usually sought for wholesale rebuilding of churches, for repewing, or for confirming individual pews. As church restoration mushroomed in the 19th century the number of faculty cases increased, and in the later part of the century the granting of faculties for lesser alterations to churches, such as new stained glass windows, became common. Many of these cases were uncontested. Until 1882 faculties were kept with the case papers but thereafter they were filed separately (see B/C/12). However, faculty case papers continue in B/C/5 until 1900, so both series should be checked. In these cases, the citation usually had annexed to it the plans of the church, or part of the church, to be altered, both before and after the proposed alteration. These are less frequent in the 18th and early 19th centuries; the earliest is 1707.
Immorality cases: office cases concerning the morals of the laity. Accusations are mainly about fornication/adultery but also include incest and blasphemy. Many of the immorality cases involve the the fathers of illegitimate children of single women, and have already been brought before the County magistrates as poor law cases. These cases were typically thought of when the term 'bawdy court' was coined becasue there are often many witnesses reporting salacious details of the behaviour of the parties..
Matrimonial cases: include four sub-categories - annulment, divorce, restitution of conjugal rights and marriage contract. Annulment was sought when a marriage was claimed to be invalid, usually on the grounds that the parties were minors and did not consent to the marriage as adults. Other grounds were forced marriage, impotency and bigamy. If annulment was granted the parties were free to marry again. Divorce cases were brought on the grounds of infidelity and cruelty. If a 'divorce' was granted this was specifically 'separation from bed and board' only, and the parties were not free to remarry. Restitution of conjugal rights might be sought by an abandoned wife left financially destitute. Marriage contract cases concern a claim made by the plaintiff against the defendant that they are legally married due to an exchange of vows, which amounted to a contract. Generally, the plaintiff claims that they are known in the community to be man and wife and have exchanged marriage gifts as well as vows. In some cases, the plaintiff claims the marriage had been consummated. If the court absolved the defendant they were free to marry someone else. Jurisdiction over matrimonial cases was transferred to the civil courts in 1858, except as regards the granting of licences for marriages to be held at Anglican churches.
Testamentary (or probate) cases: this jurisdiction represented a considerable proportion of the activity of the courts. The original wills and their inventories, and grants of administration are filed separately (B/C/10). The courts heard cases about disputed probates; case papers can include inventories and, less frequently, wills. The most common complaint of plaintiffs is against executors for 'substraction' or non-payment of a legacy. Executors/administrators also brought cases against a defendant who had failed to hand over goods/money of the deceased so that the estate could be settled. There are many probate accounts submitted to the court by executors or administrator in evidence but often without any other case papers. Probate jurisdiction was transferred to civil courts on 12 January 1858.
Tithe cases: these form a large proportion of cases heard in the 16th and 17th centuries. The plaintiff in each case is either the vicar, the rector or a lay tithe farmer. The defendant is usually accused of 'substraction of tithes', that is failure to pay tithes. Defendants might dispute the amount of produce or number of livestock or claim the fields concerned are exempt from tithe or in another parish, or that tithe has been paid already to another party. Alternatively, they might claim that tithe on a particular product has never been paid at all in that parish or is due as a money payment rather than 'in kind'. Some tithe cases relate to parishes outside the Diocese of Coventry and Lichfield. This is because the case is heard in the jurisdiction of the defendant. Witnesses tend to be older in tithe cases because they are asked to describe the ancient customs of the parish. In 16th-century cases the witnesses often recall the time before the dissolution of a particular religious house. Jurisdiction over tithe was shared with secular courts, which often heard appeals, and was finally removed from ecclesiastical courts in 1836.
Violation of church rights cases: this is a broad category of office cases which concern infringement of regulations by the laity. The sub-categories include: church rate (failure to pay for the upkeep of the; brawling in church; failure to attend church/receive communion/ recusancy; churchwarden . Church rate cases very often concern inhabitants of chapelries refusing to pay for the upkeep of the parish church as well as their own chapel, these are often long running cases that might uncover differing religious persuasions (see Castle Bromwich / Aston cases). Although recusancy is a failure to attend church, when the courts specifically use this word, they are referring to Roman Catholics, so the word is retained in the title of the case. Cases against churchwardens are usually about failure to collect rate or failure to present proper accounts. There are occasional cases against other parish officers.
Language of the documents.
Prior to 1733 the case papers are largely in Latin but with important exceptions. Witness depositions and personal responses, apart from the legal framework, are entirely in English. Interrogatories are generally in English too. In defamation cases the words of the slander in the libel is always in English. In clergy, matrimonial and immorality cases non-standard accusations in libel, articles and additional positions are often in English, and can include detailed descriptions of the lewd, violent or unusual behaviour of the defendant. In tithe cases unusual titheable products are given in Latin and English, such as the names of fish or the local term for a mixed grain crop or a measure. In fact any document where there is lengthy, non-standard text can be in English and the proportion in English becomes greater towards the later 17th century. From 1733 the language of the court becomes English.
Types of document
They key documents of a case are:
citation (or compulsory): delivered to parties and witnesses ordering them to attend court. Usually there is an endorsement from the court 'apparitor' stating that he has served a copy of the citation, or that he failed to find the person cited but displayed a copy in the parish church
libel: sets out the plaintiff's case against the defendant
articles: sets out an office case against the defendant
personal responses: this gives the defendant's response to the libel/articles. They can also be used to give a response to any other document presented in court by either side
witness depositions: full transcript of the witnesses statements. Gives name, age and parish of each witness and later occupation.
sentence: each party prepared a sentence document and occasionally both copies survive in the court papers. Prior to 1738 the actual sentence is marked in Latin, 'lecta lata' (read and issued). The defendant is either found at fault and ordered to be 'canonically punished' and to pay costs; or absolved and the plaintiff has to pay costs.
bill of costs: lists the successful party's legal costs
In less straightforward cases there were additional legal stages which produced further documents
interrogatories: questions put to witnesses on the part of the defence
witness depositions in response to other evidence produced by either party (sometimes added to the end of the first witness statements)
commission to hear witnesses: a document issued by the court to 3 clergymen to hear witnesses where it was thought impossible for them to attend court. (often attached to copy of libel)
proceedings of commission: records of the proceedings of commissions to hear cases outside the court, usually held in the parish church or a public house, common in testamentary cases
additional positions: usually an addition to the libel or articles - ie further information
allegations: points denied, often re the credibility of witnesses
obtulatio / oblatio: appearance in court / offering - document of one party offering a settlement of the case or an element of the case
material: gives extra information about the case, forms are excepted material (often detailed points raised against witnesses), articulate material and declaratory material
penance: setting out when and how the penance should be performed
excommunication: issued to those failing to respond to a citation or to carry out terms of a sentence (lesser form is suspension from church and greater form is excommunication from Christian society)
'significavit': court's request for a writ to be sent to the sheriff to imprison someone who has stood excommunicate for over 40 days without doing penance.
Cases could be appealed and this produced another set of documents:
inhibition: halts the case in the Lichfield consistory court pending appeal to the Court of Arches (court of the Archbishop of Canterbury)
prohibition: a royal writ issued on application to secular court (Chancery or King's Bench) that halts the case in the consistory court pending an appeal in a secular court
monition: simply means warning and is a form of document used to request copies of documents concerning a case appealed to a higher court. Also used to warn the losing party to pay costs
'process': authenticated copy of court documents written and signed by a notary public
'consultatio': a document used to modify an inhibition/prohibition
For more information on the working of the church courts, types of document, types of case and transcripts of documents from the Lichfield case papers, see Ann Tarver, Church Court Records: an introduction for family and local historians (Phillimore, 1995) and 'The Consistory Court of the Diocese of Lichfield and Coventry and its work, 1680-1830', unpublished PhD thesis, University of Warwick, 1998. Both available at Staffordshire Record Office.
Officials of the Court:
Notary publics and other officials are noted when there is a significant mention of them in the papers. Simon Marten/Martin, who was unique in working both before and after the commonwealth, appears to have retained some papers for the Commonwealth period, and may have played a part in keeping the pre 1640 papers safe. His daughter Mary married Adin Froggatt, another notary public who appears in a few cases as a defendant accused of malpractice.
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