Court procedure – cause papers generated by the court process
The jurisdiction of the church courts covered both contentious and non-contentious matters. The records considered on this site derive from contested suits of which there were three main types. The majority of causes heard were ‘instance’ suits arising from disputes between parties.
There were also ‘office’ cases, which were prosecutions aimed to enforce the laws of the church, often arising from offences presented by churchwardens during ecclesiastical visitations. Most cases of this type were heard by Chester officials during their visitations and those court records are filed with the visitation records.
More serious or disputed office cases came before the consistory court, although they were relatively few in Chester. They fall into two categories; ex officio mero and promoted office cases. The ‘mere office’ cases usually arose from visitation presentments or disciplinary matters prosecuted by the church authorities. Promoted office cases were supposedly brought by individuals aiming to enforce church discipline, however, there is sometimes uncertainty about precisely why they were prosecuted in this way.
The pattern of procedure followed in consistory courts varied slightly throughout the country, and evolved over time. However, whenever and wherever it was heard, each cause progressed through a series of clearly-defined stages (processus).
Below, you will find a description of the types of cause papers generated at each stage of the court process at Chester in the sixteenth century.
It was the practice of the court to identify causes by naming the plaintiff first and then the defendant, using the word contra to mean against, rather than versus as was usual in some other courts. However, in the course of proceedings if the defendant became the active party, for example, by producing witnesses to material he had introduced, they are described as witnesses ex parte (on behalf of) the defendant contra the plaintiff, thus giving the names of the parties in reverse order. This can lead to confusion and does not necessarily mean that the defendant had counter-sued.
The process normally began with an appearance by the plaintiff (pars actrix or pars agens). Although parties were permitted to act for themselves (personaliter), most chose to appoint a proctor to prosecute the case on their behalf. This meant that they did not usually have to attend court again until sentence was given.
At Chester the consistory court books (EDC 1 series) contain the records of daily court proceedings. In the surviving court books of the sixteenth century the record of each court day was usually set up in advance, with each cause listed and the names of the parties set out in a margin on the left side of each page. A statement of where the case was up to and actions decreed at the last hearing is set out on the right of the margin, to be followed by a note of what actually took place on the court day and of actions to be taken before the next hearing. These notes were often made on the day of the hearing in scrawled and heavily-abbreviated Latin.
The record of the first hearing usually includes the name of the proctor for the plaintiff in the margin with the details set up in advance; suggesting that in most causes the plaintiff had already appointed a proctor who probably instigated proceedings on his behalf. The formal appointment of the proctor at the first hearing was thus a process whereby his appointment was recognised by the court. Following his appointment the proctor exhibited his procuracy (or proxy) which entitled him to act on behalf of his client. None of these letters of proxy are known to survive from this period.
The defendant (pars rea) sometimes also appeared at this first hearing and might then also appoint a proctor whose name does not normally appear in the marginal notes for the first hearing, but does appear there for future hearings.
There might be more than one defendant or plaintiff in any cause and each party might appoint more than one proctor.
If the defendant did not appear at the first hearing the proctor would ask the judge to issue a citation (summons or preconizacio) for his appearance on an assigned day to hear the charges against him. Although some copies of citations are extant at Chester in the citation books (EDC 3 series), none are known to have survived from the sixteenth century.
If the defendant did not attend court in response to the citation the judge would usually issue further citations or, as a last resort, order him to be excommunicated.
At the first hearing the plaintiff’s proctor would usually seek a term to the next court day for giving the libel. The libel (libellus or ‘little book’) was a formal statement of the plaintiff’s grounds for complaint and had to be made in writing.
The arrangement of the libel (also known as the positions or allegation) followed a conventional formula. The first paragraph sets out which judge was entitled to hear the suit. In instance causes, it gives the names of the parties and their parish or chapelry of residence, confirming whether these places came within the jurisdiction of the judge stated.
The plaintiff’s complaint was then set out or propounded in a series of paragraphs, known as articles, which were often, but not always, numbered.
It ended with a claim that truth of the matter was public knowledge followed by a plea for justice and a request for judgment to be given in favour of the plaintiff. The sentence sought by the plaintiff was also often specified. A request for reimbursement of the plaintiff’s costs by the defendant was frequently included.
In office and promoted office causes this document was called the articles, rather than the libel.
Once all the parties or their proctors were in court the libel would be presented. It was read aloud, sealed and a copy was given to the defendant (or his proctor). This was one of three copies which were normally made. Of the other two, one was given to the judge and the third was retained by the plaintiff.
The judge appointed a day on which the defendant could make a reply; typically this would be the next court day.
The plaintiff could ask that the court would agree to adopt a simplified process, known as summary procedure, rather than the plenary procedure usually followed. Summary procedure was followed in many office cases, and in instance cases was most frequently requested by plaintiffs in straightforward matrimonial causes.
In such cases the complaint would be propounded in the form of a petition, set out in a similar way to a libel, but with the claim stated more briefly, often in just one article.
The defendant could accept the truth of the matters raised in the libel or articles and the cause would then proceed to sentence, although this rarely happened. If he denied that the libel was true, he was usually required to give his personal answer to each of the points raised.
The plaintiff was also required to prove the truth of his libel, usually by calling witnesses, known as witnesses probatory, who were allowed to claim their expenses in attending court.
Exceptions might be propounded by either party. There were a number of different types of exceptions, but the majority of those found among the Chester cause papers were ‘specific’ exceptions given in writing against witnesses, aimed to discredit their testimony, usually by discrediting the witnesses themselves. Certain types of people were considered not to be fit and proper witnesses, for example criminals and adulterers, so that testimony could be discounted if it could be shown that the witness came from an excluded group.
Other types of exceptions might raise other matters, not referred to in the libel or depositions. In a tithe cause, for example, the existence of a lease or other matter affecting the ownership of the tithes might be raised in an exception by the defendant.
The witnesses produced by the plaintiff in support of his libel and those produced by the defendant to corroborate an exception made to raise a matter not included in the libel were known as witnesses probatory.
Once the depositions of the witnesses probatory had been published, the opposing party could make exceptions to those witnesses or their depositions and call reprobatory witnesses in support of their exceptions. The other party could then make exceptions against the reprobatory witnesses or their depositions.
After that no further exceptions to witnesses on this material could be made, under the rule, ‘Witnesses against witnesses, and witnesses against them, but no further’.
Exceptions against reprobatory witnesses were made by way of replication.
Probatory witnesses could not be cross-examined, but the other party could raise questions, known as interrogatories, to be put to them. These sought to establish matters relevant to the points in dispute or to challenge the suitability of the witness.
The interrogatories were administered to each witness after he had been examined by the party producing him. This normally seems to have been done on the same occasion, since replies to interrogatories are usually found following straight after the deposition of each witness, often written on the same piece of paper.
Interrogatories were set out in numbered clauses and often began with an exhortation against perjury, usually followed by questions about how the witness obtained his living in order to establish whether he was independent, or under some obligation to the party producing him.
The opposing party was not allowed sight of the interrogatories in advance.
If the witnesses lived a long distance from Chester or were prevented from travelling due to age or infirmity or some other reason, either party could petition for a commission to be issued for their examination elsewhere. In matrimonial causes, however, the parties had to appear personally.
Witnesses were examined, supposedly in private, by the judge, an officer of the court or occasionally by the bishop himself. There are, however, many instances where the witness deposition states that he agrees with a previous witness. This may suggest that in practice witnesses were able to listen to each other’s depositions or it may be the scribe’s shorthand method of recording that similar evidence had been given by the two witnesses.
Material which had been submitted to the court in Latin was translated for the purposes of questioning the witnesses.
The witness statements or depositions were taken down in writing, mostly in English, but copies were not made available to the parties until the judge ordered them to be published. They follow the order of the points raised in the libel or other material.
Although it has been argued that depositions, as written down, may not be an entirely accurate reflection of what was said, since they are filtered through the scribe who recorded them, they remain an important source, revealing much about contemporary local life and opinions.
At Chester prior to 1574 the majority of depositions and personal answers were recorded in a series of deposition books (EDC 2 series).
After propounding the libel, which was also sometimes referred to as an allegation, the plaintiff had the right to put in up to two further allegations, each designed to support and strengthen the previous one. The defendant had the right of reply to each one.
On the day assigned for sentence the proctors for both parties would offer a written sentence on behalf of their party, although if the defence proctor felt that his cause was unlikely to succeed he might merely ask for judgment in his client’s favour.
The sentence offered by the successful party was accepted by the judge and promulgated as his definitive sentence.
At Chester the written sentences offered in this way were rarely, if ever, accepted without amendment by the judge who annotated the copy he had been given to make any adjustments which he felt were necessary.
The scribe then made a note that the sentence had been read and promulgated, and usually adds details of the date and place where this was done, giving the names of the witnesses.
The winning party would usually ask for reimbursement of his expenses by the losing party and the judge often made an order for costs when he promulgated the sentence. The winning party drew up a bill or schedule of the costs which his party wished to claim, some fees, however, were effectively fixed by custom. A schedule of such fees, as set out on a schedule in the Registrar’s office and agreed in 1583 by the bishop, survives in Chester Record Office (reference DDX 153).
The judge usually determined or ‘taxed’ the costs claimed to allow what he considered to be reasonable and disallow the balance.
No doubt then, as now, there was certain skill involved in drawing up a bill of costs so that the maximum would be allowed by the judge.