Accessibility statement

What are cause papers?

Cause papers are the papers of individual cases heard in the church courts: in this case the ecclesiastical courts at York. Below, you will find an explanation of how the courts worked at York; we have also created a glossary of terms relating to the church courts, an example case, and information on where other records of ecclesiastical courts in the north can be found.

How the courts work

Contents

Background

The Church Courts form the middle ages to the nineteenth century had jurisdiction over a wide variety of cases including amongst others those involving, matrimony, defamation, tithe, probate, clergy breach of faith (Fidei Lesio) and church rights. The papers of court cases heard at York (cause papers) start to survive in the fourteenth century, although there is evidence of archiepiscopal courts before this. In the 1300s there was one central court – the curia Ebor – where the cases were heard, but in the fifteenth century the consistory court and the chancery court were established. Cases heard at York included those arising from disputes within the diocese and appeals from other diocese in the Northern Province. Appeal from York could be to Canterbury or straight to the Papal courts, until the Reformation: in 1533 the Ecclesiastical Licences Act established the High Court of Delegates and Court of Faculties acting instead of the papal courts of appeal. In 1580s the Court of High Commission, which had been in existence from the 1550s on an irregular basis, was regularly established, although this was to be abolished in 1641.

The courts were suspended during the Protectorate, but after the restoration in 1660 they were re-established, but the authority and prestige of the Church Courts declined gradually from the late seventeenth century on, although the large number of cause papers surviving at York is ample evidence that the Courts were still in regular use. In 1754 Hardwick's Marriage Act, aimed at preventing clandestine marriage, was passed through Parliament – the first secular legal enactment on marriage, the preserve of the ecclesiastical courts. In 1832, the Special Report on the Practice and Jurisdiction of the Ecclesiastical Courts, suggested the reform of the courts and their jurisdiction and the 1830s, 1840s and 1850s saw a raft of legislation which removed parts of the ecclesiastical courts’ jurisdiction. The 1836 Tithe Commutation Act, by ensuring the long term commutation in tithe payments for monetary payments, marked the effective end of this area of law in the courts. In 1855 the Church lost jurisdiction over defamation and in 1857 the Matrimonial Causes Act also marked the end of cases concerning marriage in the Church Courts. Finally the 1858 implementation of the 1857 Court of Probate Act brought testamentary cases under the secular courts. The ecclesiastical courts continue to exist to the present day, but are largely concerned with jurisdiction over clergy discipline and disputed faculty jurisdiction.

[Back to the top]

Procedure

The procedure of the church courts at York changed gradually over the 550 years or so for which we have comprehensive records, to 1858, and will not have been exactly the same as the procedure in other courts in other dioceses. Any basic description of the procedure is therefore bound to be a general one, subject to slight variation over time.

The Church Courts were concerned with two types of business: instance cases and office cases.

[Back to the top]

Instance Cases

An average medieval or early modern instance case ran something like this, although it's important to remember that the plaintiff could bring an end to the case voluntarily at any point, and often did.

[Back to the top]

Citation and certification

Cases usually began with the appointment of a proctor by the plaintiff: although parties could act for themselves in person they were not required to attend the court if their proctor could do so for them. The plaintiff (the actor or pars actrix) made a complaint – orally or in a written libel – to the court and asked the judge to cite the defendant (the reus or pars rea). The judge therefore drew up a mandate or letters of citation which was usually addressed to the archdeacon or the rural dean of the place where the defendant lived. This said the defendant must be summoned to appear on an assigned day in a particular place, before a particular judge to hear the charges against them. The summons had to be delivered in front of two witnesses – if it was absolutely impossible to give it to the defendant in person a public citation could be made – that is it could be publicly declared in the church on a Sunday or a feast day at mass.

Once the archdeacon or rural dean had obeyed the citation he certified the court of his action. This sort of procedure seems to have been enough to end some cases then and there – at Norwich about 1/3 of cases seem to have gone no further.

[Back to the top]

Contumacy for Non-appearance

At the first appointed session of court both the parties should have appeared either by coming in person or by sending their appointed proctor. If one party didn't appear the other would ask the judge to declare them to be contumacious. The first absence might be overlooked and only lead to another day being appointed, but three absences and the judge would oblige, the absentee was declared contumacious and was usually suspended: that is, prevented from attending church services. The incumbent of his local church would be informed of this in a letter and it was publicly announce in the church. If the absentee ignored this he could be excommunicated – and perhaps just as importantly ordered to pay the cost of one day's suit to the plaintiff.

[Back to the top]

Libel

Once the parties were both in court, the plaintiff’s libel (libellus conventionalis) would be presented. This was a brief document with the names of the parties and the judge, a short statement of the charges brought, and a request for judgement. It was read aloud, sealed and a copy was given to the defendant (or his proctor). The judge appointed a day on which the defendant could make a reply.

[Back to the top]

Dilatory and Declinatory Exceptions

Exceptions could be brought forward as soon as the libel had been read, but were usually presented at the next appointed session. These were addressed to the judge by the defendant who asked that they be admitted by the court. They came in two types.

  • Dilatory exceptions gave reasons for delay – for example claiming the libel was imprecise or redundant (this was the favourite one).
  • Declinatory exceptions questioned the right of the court to hold the case (perhaps claiming the defendant didn't live within that court's jurisdiction)

Another protest which could be brought was a recusatio – this means refusal and challenged the particular judge appointed – claiming he was e.g. biased – or claimed that the other party was excommunicate (which meant they couldn't appear before the church courts).

Once the exception had been made there were disputes about its validity and the judge had to choose whether to accept or quash it – he could go away and take some time to decide this, appointing another day for the parties to return and hear his decision. Exceptions could be followed by a replication from the first party which was basically another counterpleading and had to be accepted or quashed in the same way.

[Back to the top]

Litis Contestatio

In theory the defendant could choose to admit the libel and this would mark the end of the case and the judge could proceed to sentence. In practice the case was invariably contested – this marked the end of the preliminary stages and the beginning of the judgement – which included the bringing of witnesses.

[Back to the top]

Oaths of Calumny

Immediately the defendant had denied the libel, both parties had to take the oath of calumny (de calumnia seu de veritate dicenda). Both swore that they did not bring the case to cause trouble, that they thought their position was just and that they would not bring false evidence or witnesses. They also both swore to tell the truth. This oath was taken in person – sometimes before a proxy appointed by the court rather than in front of the judge himself.

[Back to the top]

The Proof

Basically the principle was much like that of modern law – if a party made a statement of fact they had to prove it. As all the running in these cases was usually made by the plaintiff they were the ones who had the burden of proof. There were three main ways to prove a case:

  • Admission by the defendant
  • Sworn statement by two 'unexceptionable' (meaning not successfully objected to) witnesses
  • An authentic document

The last was rarely used but the first two were regularly tried.

[Back to the top]

Admission by the defendant – the positions / personal answers / allegation

The positions were a document drawn up by the plaintiff's proctor and based on the libel. Every claim in the libel became a separate point and the defendant was given the chance to admit each one. The documents were called positions because each point began Pono or Ponit quod. The defendant – or his proctor – then answered each point – often his handwriting can be seen making brief notes on the document (usually something like creditur or non creditur). Statements agreed upon by both parties didn't have to be proved by witnesses and in many cases a new document was written out called the articles which only included the statements which were contested.
From the early modern period on we start to see the allegation or responses as an alternative to writing notes on the positions. These were still the defendant's chance to accept or deny the accusations in the libel.

In theory a defendant could accept all the accusations and admit himself guilty although this was unlikely to happen. Usually he denied all the claims and the case had to be contested. Cases involving a married couple, and their separation were an exception to this. In these cases the first detailed claim of the libel was that they were legally married. It was important the defendant accepted this point as once he had done so the plaintiff (usually the wife) could be awarded a sort of interim alimony whilst the case continued. Usually in these cases the defendant accepted the first article (proof of which has been attached to the libel). If he did not the court would have to start with that one point, calling witnesses to prove or disprove the marriage, before they could carry on with the rest of the case. Once the marriage had been proved interim alimony was awarded and the case continued.

[Back to the top]

Production of Witnesses and Depositions

The plaintiff would be given more than one (usually three) opportunities (or terms) to produce witnesses: terms probatory. At each of these terms they could produce one or more witnesses or other evidence. The witnesses were sworn and examined at some point between hearings of the case – always by someone other than the judge himself (at York by someone called the examiner-general or by those who worked for him). A minimum of two witnesses was needed – but some cases produced well over twenty. Witnesses were usually expected to come to York, summoned by a citation or compulsory which told them when and where to appear and were paid travelling expenses, but the very elderly or sick could have their statements taken by a surrogate (usually a local clergyman) in their homes. The witness accounts taken show that witnesses were read each statement in the positions or articles and asked to comment upon them – at least until the fifteenth century their comments were then translated into Latin, except for any direct speech reported which was usually left in English, particularly in defamation cases. Three copies were made – for the judge, the plaintiff and the defendant. Witness statements (their depositions) were submitted at the next hearing of the case. All witnesses had to be over 14 and freeborn and any who refused to attend risked excommunication.

[Back to the top]

Interrogatories

Witnesses couldn't be cross-examined – but there was one way in which the defendant could approach the witnesses for the plaintiff – by providing a list of interrogatories. These were a set of additional questions to be put to the witnesses, often asking questions about bribes they may have been offered or bringing to light additional facts which had been omitted. Not all court cases included these.

Although we have talked about the plaintiff as the one bringing the witnesses, occasionally an exception to the libel or a replication could produce its own set of positions then articles and witnesses could also be produced to prove these, under the same rules and system as above.

[Back to the top]

Exceptions against Witnesses and their Statements

Once all witnesses had been produced and the terms to produce witnesses had come to an end the depositions were read in common court (and this was when the copies were given out). The opposing side could then put forward exceptions to the witnesses or to what they had said. Usually these directly attacked the individual witnesses, accusing them of being the sorts of people not allowed to testify in court – for example the unfree, paupers, vagabonds, excommunicates, those accused of crime, servants or relatives of the producing party or known enemies of the other party. Such exceptions, like the earlier ones against the libel, had to be proved and could be accepted or quashed by the judge. Proving such statements could sometimes be a lengthy business involving the bringing of more witnesses. If the exception was accepted, that witness's testimony would be discounted.

[Back to the top]

Literal Proof

As well as witness accounts the parties could bring documents to support their claims.

[Back to the top]

Term for Propounding All Acts, Disputation, Conclusion

The term for propounding all acts (terminus ad proponendum omnia) was often established by the judge as a way to prevent delays. It was a date by which all further evidence had to be produced and all further disputation entered. Sometimes this didn't work – the disputation entered by the term might mean the need for further proof or for deliberation by the judge, and of course at any point the failure of one party or the other to appear would delay the case further. This meant that some cases ended up with several such terms. Once the final term had been passed and agreed a day was appointed for the delivery of sentence.

[Back to the top]

The Sentence

The church courts could include two types of sentences:

  • Interlocutory sentences were only temporary in nature and occur during the case about, for example, the validity of exceptions.
  • Definitive sentences are those which are intended to be permanent and which end the case.

Both were similar as they involved the same process: the judge would review the evidence, then pronounce on the issue before him – it's the definitive sentences though which are found in cause paper bundles. The sentences are always disappointing because they are in a standard format and are very uninformative saying nothing about why the judge reached a particular decision. Much of their length is used to describe the case; this is usually a direct quotation from the original libel. Sentences were often delayed – it isn't clear why, possibly because of disputation over legal points, and they often don't seem to appear at all. Right up to the end of a case the Church emphasised the need to reconcile the two parties and this (and practical necessities like the cost of the case) meant that at any point a case could disappear from the records entirely without warning. Once the sentence had been read out – that is published – it was sent to the archdeacon or rural dean to be published by him. Both parties were now expected to abide by the decision. If they didn't they could be excommunicated. A definitive sentence could, of course, be challenged on appeal.

Usually the whole case – if it went right through – took under a year to complete.

[Back to the top]

Taxation and Costs

One problem with losing a court case was that you had to pay costs for the other party. This was not an inexpensive business – the whole court system was financed by the fees levied from those who appeared and each additional appearance or document increased the cost. To pay for a proctor to appear once was not especially costly – but if he had to put in several appearances (particularly whilst waiting for the other party to appear) the cost increased. Bills of costs include payment for each document written, for additional copies, for sealing and delivery of documents, for the travel and subsistence costs of each witness called, and even for wine for the judge. In theory under canon law no person should have been unable to sue for justice and the poor could ask to have their case tried 'in forma pauperis' which gave them an allowance for the case (of between £2 and £5) but this was very rarely claimed.

[Back to the top]

Office Cases

Office cases could appear in the consistory or chancery courts and ran through more or less the same process as other cases. It was common for office cases to be promoted – held at the instigation of an individual but taken up by the office – however it is not always possible to tell this from the cause papers. Additionally office cases were often heard in connection with the process of visitation where cases had been brought to the archbishop's or archdeacon's attention and therefore appeared in the visitation courts.

[Back to the top]