The 'bawdy courts': how England's church courts judged fornication

What were the church courts and what did they judge?

The church courts were the courts of the Church of England's bishops and archdeacons, and for several centuries they judged not only clergy but ordinary lay people. Their ordinary business covered defamation, wills and probate, marriage disputes and, more generally, what the sources call morality ^[3]. A consistory court sat under each bishop, and appeals went to the archbishop's court, the Court of Arches in Canterbury or the Chancery Court in York ^[3].

Their law was canon law, applied with civil-law procedure rather than the juries of the common law courts ^[12]. The English Reformation did not change this much. The Wikipedia account of the consistory courts notes that the Reformations left their jurisdiction and operation largely intact, although the final appeal moved from Rome to the Crown after the Act in Restraint of Appeals of 1533 ^[3][13].

Sexual conduct was among the matters brought before them because the Church treated it as a sin that the courts could correct. Fornication meant sex between unmarried people, adultery sex involving a married person, and both could be 'presented' to the court on the report of parish officials or neighbours ^[7]. Incontinence, the older word for sex outside marriage, was the general heading under which Blackstone later placed such cases ^[2].

Timeline

1. 1300The earliest cases in the York cause papers, a series of church-court records that runs to 1858 and now counts more than 14,000 causes [1].
2. 1533The Act in Restraint of Appeals (24 Hen. 8 c. 12) bars appeals to Rome; the Crown becomes the final authority over the church courts [3][13].
3. 1650The Commonwealth makes adultery and incest capital and fornication punishable by imprisonment in the secular courts; the Act is not revived after the Restoration in 1660, and the church courts again deal with the offence [2].
4. 1760sBlackstone's Commentaries describe incontinence as left to the 'feeble coercion' of the spiritual court [2].
5. 1813The Ecclesiastical Courts Act 1813 largely ends excommunication, replacing it with a writ against those in contempt of court [8].
6. 1855The Ecclesiastical Courts Act 1855 ends the church courts' jurisdiction over defamation [3][14].
7. 1858The Matrimonial Causes Act 1857 takes effect on 1 January 1858 and moves marriage and divorce cases to a new civil court [3][9].

Why were they called 'bawdy courts'?

They were called 'bawdy courts' because sexual cases made up so large a part of what they heard. A Fitzwilliam Museum account of the early modern courts says the nickname arose because sexual litigation was among their most common business ^[4]. The label was a popular joke at the courts' expense and was never an official title.

The nickname hides how mixed their workload was. In the sixteenth and seventeenth centuries the same courts also dealt with marriage, bastardy, wills, defamation and church governance ^[4]. A court session might consider a disputed betrothal one hour and a missed church service the next.

One feature of these courts was unusual for the period: women could appear before them and bring suits in their own right, which the common law courts at Westminster rarely allowed ^[4]. Defamation was one of the courts' regular matters, and in a small community a sexual insult could damage a person's standing badly ^[4]. That is one reason sexual reputation figures so heavily in the surviving records.

How were fornication cases brought and punished?

A fornication case usually began with a report of scandal, called a presentment, and ended in a penance or a fine rather than prison. Church officials and neighbours reported suspected offenders, and a couple who had conceived before marriage could be 'presented' to the court as a matter of routine ^[7]. The accused then had to answer, and many collected character references from respected neighbours who testified to their reputation rather than to the facts ^[7].

Where the facts could not be seen, the courts had to establish things such as a private act or a promise to marry, and they relied on witness depositions ^[4]. A promise of marriage did not remove the offence, but a teaching page from Wesleyan University notes that it could reduce the punishment ^[7]. Accused people paid court fees whether or not they were found guilty, a cost that fell hardest on the poor ^[7].

The courts had no power over the body in principle. A Herefordshire local-history page, citing the historian Anne Tarver, says church courts were not entitled to harm the body, and that public shaming was the usual deterrent ^[6]. The same page admits that fining seems to have been common in the surviving local records, so the line between penance and payment was blurred in practice ^[6]. Historian Martin Ingram's work on the late sixteenth century, as summarised in a review for the Institute of Historical Research, adds that urban secular authorities more often chose financial sanctions, whereas the threatened punishment in church courts was public penance ^[5].

The common law took a different view. Blackstone writes that the temporal courts took no notice of adultery as a crime, treating it only as a private injury, while incontinence was left to the 'feeble coercion' of the spiritual court ^[2]. A man or woman who kept a brothel or committed open scandal might be indicted, and parents of a bastard child likely to burden the parish could be sent to a house of correction under Tudor and Stuart statutes ^[2]. Those secular routes were separate from the church court process.

What did public penance involve?

Public penance meant that the offender confessed the fault before the congregation, usually in a white sheet, and promised to amend. The Wesleyan page describes offenders standing in a white sheet before the congregation or in the market-place ^[7]. The aim was to restore the person to the parish by a public act of repentance rather than to jail them.

The penance was set out in the court's sentence. A typical order named the church, the Sunday and the words to be said, and the court expected a certificate from the minister and churchwardens that it had been done. Herefordshire's example comes from Madley in 1821, where a woman accused of slander had to wear a white sheet, walk up and down the church aisles and retract her words aloud ^[6]. That date shows how long the form survived, even for offences other than fornication.

Penance could be bought off. According to the review of Ingram's work, monetary fines replaced penance more often by the late fifteenth century, though harsher punishment returned by the mid-sixteenth century, especially in the London courts ^[5]. The pattern was uneven over time and place. From the last decades of the sixteenth century the London church courts heard significantly fewer cases than before, while in provincial England campaigns for sexual morality did not slacken and in places intensified ^[5].

Excommunication was the court's last resort when a person ignored a summons or refused a penance. It shut the person out of the church's sacraments, and the Herefordshire records show it applied to a wide range of faults, including cursing and Sunday amusements, not only sexual ones ^[6].

The Ecclesiastical Courts Act 1813 (53 Geo. 3 c. 127), entitled 'An Act for the better Regulation of Ecclesiastical Courts in England; and for the more easy Recovery of Church Rates and Tithes', largely replaced excommunication with a procedure for contempt. A person who ignored a citation or an order could be declared 'contumacious and in contempt', after which the court notified Chancery and a writ de contumace capiendo issued; the person was released on submitting and paying the costs of custody ^[8]. The Act did not abolish excommunication altogether: a church court could still pronounce it as a spiritual censure in a final sentence for an offence within its jurisdiction. It added that an excommunicated person suffered no civil penalty or incapacity beyond imprisonment of up to six months if the court directed it ^[8].

Why did the church courts lose their moral jurisdiction?

The church courts lost their moral jurisdiction over lay people gradually: it fell into disuse by the end of the eighteenth century and was then stripped away by statute in the 1850s ^[3]. No single act abolished the power to punish fornication. The jurisdiction simply stopped being used.

Blackstone's remark that these offences were left to the 'feeble coercion' of the spiritual court already suggests the weakness of the sanctions in the 1760s ^[2]. The courts could order penance, but their ultimate sanction, excommunication, was curtailed by the 1813 Act ^[8]. The sources consulted do not give a single date or cause for the decline in prosecutions.

Parliament then removed whole areas of business. The Ecclesiastical Courts Act 1855 ended jurisdiction over defamation ^[3][14]. In 1857 the Court of Probate Act moved probate to a new secular court, and the Matrimonial Causes Act 1857 moved divorce and other matrimonial causes to the new Court for Divorce and Matrimonial Causes, with effect from 1 January 1858 ^[3][9]. Wikipedia's summary of adultery in English law says that the church courts had handled adultery from medieval times until 1857, with penances that included appearing before the parish congregation in a white sheet ^[11].

The Ecclesiastical Courts Jurisdiction Act 1860 (23 & 24 Vict. c. 32) removed church-court jurisdiction in certain cases of brawling, that is, disturbance of church services, and created a penalty for offenders with a right of appeal ^[10]. After these reforms the consistory courts kept their authority over church buildings and land, and for a time over the discipline of clergy ^[3]. The Clergy Discipline Act 1892 allowed a clergyman to be prosecuted in a consistory court for immoral acts, and the last clergy discipline case heard by a consistory court was that of Brandon Jackson, Dean of Lincoln, who was acquitted in 1995 under a later measure; clergy discipline has since passed to other tribunals ^[3].

The sexual conduct of lay people thus left church jurisdiction without any statute saying so. It is a good example of a rule that vanished through neglect before it was formally removed. The modern legal position on fornication, which is that it is not a crime anywhere in the United Kingdom, is covered in the companion article on whether fornication is illegal in the UK.

Where can their records be consulted?

The best-known collection is the York cause papers, held by the Borthwick Institute for Archives at the University of York. The online database holds records of cases heard between 1300 and 1858 in the church courts of the diocese of York, and the project describes it as the most extensive set of its type in the United Kingdom ^[1]. More than 14,000 cause papers are catalogued, and users can search by name, place, date and type of case ^[1].

Other diocesan archives hold comparable material. Many county record offices keep presentments, act books and penance certificates for their own dioceses, and the Herefordshire pages draw on exactly that kind of record ^[6].

Researchers should keep three cautions in mind. First, outcomes are often missing, because the surviving files record the accusation and the evidence but not always the sentence ^[6]. Second, Ingram's review notes that fragmentary records make systematic counting of prosecutions and punishments 'virtually impossible' ^[5]. Third, the courts' priorities shifted by place and period, so findings from one diocese cannot simply be applied to another ^[5].

For readers interested in how English society moved from church discipline to the secular marriage and divorce system, the article on Victorian morality and the double standard follows the story after the Matrimonial Causes Act 1857.

Frequently asked questions

Could a church court send someone to prison for fornication?

Not directly. The church courts could order penance, impose costs and excommunicate, but imprisonment was not a normal sentence for fornication ^[6]. Prison could follow only indirectly: a person who defied the court could be declared in contempt and held under a writ until they submitted, and after 1813 an excommunicated person could be imprisoned for up to six months if the court directed it ^[8].

What was a 'presentment'?

A presentment was a formal report to the church court that a person was suspected of a fault. Churchwardens, officials or neighbours made it, and couples who had conceived before marriage were 'presented' as a matter of course ^[7]. The person named was then summoned to answer the charge.

When did church courts stop judging lay people's morals?

Their jurisdiction over lay people's morals fell into disuse by the end of the eighteenth century ^[3]. Parliament then removed defamation in 1855 and marriage and divorce in 1857, with effect from 1858 ^[3][9]. No act singled out fornication, which simply ceased to be prosecuted.

What happened to people who refused to do penance?

They risked excommunication, which shut them out of the church's sacraments, and it was a common sanction in the Herefordshire records ^[6]. After the Ecclesiastical Courts Act 1813, a person who defied the court could be declared in contempt and held under a writ until they submitted ^[8]. Many surviving records show only the charge and not the outcome, so what happened next is often unknown ^[6].

Were men and women punished equally?

On paper, both were liable, and a couple who had conceived before marriage were presented together ^[7]. In practice the visible evidence of pregnancy made women easier to identify, and the Wesleyan page says parents of illegitimate children usually received a whipping when the matter went to magistrates ^[7]. Records vary, so no single rule fits every diocese.

Why did Shakespeare's wedding licence come from a 'bawdy court'?

Church courts issued marriage licences, so couples seeking one dealt with the same officials. The Wesleyan page notes that in late November 1582 friends of Anne Hathaway's family went to the Worcester court, which allowed the couple to marry after a single reading of the banns, for a fee and a £40 bond, and that the court recorded Anne, who was pregnant, as a 'maiden' ^[7]. The episode shows the courts acting as administrators as well as judges.