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Continuity and Change 10 (3), 1995, 405-436. © 1995 Cambridge University Press
Demography in the archives: social and
geographical factors in fourteenthcentury York cause paper marriage
In the last thirty years much has been learned about the application of
canon law and the way ecclesiastical courts functioned in medieval
Europe, but it is still relatively unclear to what extent the courts were used
by the laity or how representative of society as a whole were the litigants
and witnesses heard by the courts. Although scholars have commented on
the composition of groups of litigants, their observations have been based
on impressions rather than figures. In his comprehensive survey of
medieval English marriage litigation Richard Helmholz observed in an
aside that members of the highest status groups and those of servile
condition rarely used ecclesiastical courts to settle their marriage disputes.1
His impression of the frequency of litigation initiated by people of high
status contrasted with an earlier study by Michael Sheehan, who found
that the matrimonial litigation preserved from the Ely consistory court for
the period 1374-1382 included a fairly representative cross-section of the
fourteenth-century Cambridgeshire population, with the possible exception of the highest status groups of that population.2 Most recently,
Charles Donahue has remarked that the York court contained 'a
disproportionate number of the wealthy, the powerful and the persistent'
among the litigants.3 Sheehan believed that the unfree had good access to
ecclesiastical courts and argued in another study that the ideology of
marriage proposed by the Church since the third century had penetrated
to all levels of society and that even the poorest members of society were
willing to stand up for their right to marry. Their knowledge of this right
* Department of History and Economic History, University of Aberdeen.
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did not come just from synodal legislation but from the ideological
indoctrination of church sermons and the development of a system of
ecclesiastical jurisdiction which gave the Church the means to enforce
conformity with its ethical ideals and ensured that ordinary people were
aware of the rules of canon law on marriage.4
There is thus good reason to examine the social and geographical
parameters of the surviving marriage litigation from individual courts in
England. This study presents the results of an analysis of the fourteenthcentury York consistory court. It will be shown that these records
represent a sample of the population of the northern province which is
seriously skewed in respect of sex ratios, social and legal status,
geographical recruitment and age-distribution. The York archives show
who used the archbishop's courts in the northern province and can be
used to reconstruct a sociology of the court which helps us understand the
dynamics of the application of rules of law governing marriage.
The medieval consistory courts grew out of the bishop's personal
jurisdiction. As the caseload grew and as the duties of the bishop became
more extensive it became necessary to appoint deputies to administer
aspects of the bishop's duties. The dispensation of the bishop's justice was
the responsibility of the bishop's official, but as his duties included other
aspects of the administration of the bishop's office it soon became
necessary for another deputy, the official's commissary general, to
dispense the bishop's justice. Thus the fourteenth-century archbishopric
of York had three individual courts - the archbishop's special court of
audience, the consistory court (presided over by the commissary general
or the official or by specially appointed commissaries) and the court of the
exchequer - which all dispensed the archbishop's justice. The bulk of
litigation was heard by the commissary general and cases were normally
appealed to the official. Some cases (notably CP E 248) were initiated at
the archbishop's special court of audience, but these cases are the
exception. There are no surviving cases from the fourteenth-century court
of the exchequer. (Because all the courts in York dispensed the
archbishop's justice, the system of courts in York will be referred to
collectively in what follows as the court of York, while its constituent
parts will be referred to as the courts of York.)
The York cause papers present that tiny segment of the population who
sought the arbitration of the archiepiscopal court. The reasons for the
litigants' choice of this means of resolving their conflicts must remain
unknown. To the court, it was enough to record that the plaintiff
presented a case. However, the historian can gain some insight into the
litigants' backgrounds and their level of commitment to their cases by
analysing their common characteristics, and thus may be able to say
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something about the factors that influenced the decisions to litigate and
the wider implications of the evidence left by the courts in York.
The study of the medieval ecclesiastical courts in England has been
conducted mainly with the help of two kinds of documents produced by
the courts themselves - cause paper files and act books - which are
fundamentally different in intent and purpose. The focal point of a cause
paper file is the individual case, while the act book records the procedural
business of the courts. The York cause paper files contain all surviving
documents produced by the courts of the northern province and document
most of the arguments and procedural steps taken in individual cases.
Although they are extensive, none of the 256 fourteenth-century cause
paper files are complete, but together with the Canterbury sede vacante
litigation from 1270 to 1273 and 1292 to 1294, they comprise the most
complete documentation of the conduct of cases under ecclesiastical
jurisdiction in medieval England.5 The fourteenth-century York files
contain around 800 documents of varying lengths, which give evidence of
all aspects of court business, from procedural documents - such as libels,
positions and interrogatories - to the sentences of the court.6 The York
cause paper files also include letters and transcripts of earlier cases from
officers appointed by the court to investigate the facts of a case in the field
and, most importantly, they include a large number of depositions heard
by the court. Act books, on the other hand, record the day-to-day business
of the court. Typically, for each session of the court, they record the name
of the litigants who appeared that day, the nature of their suits and the
procedural steps taken in the case that day.
There is a peak in the number of surviving cause paper files in the sixty
years from 1380 to 1440 when the court in York heard almost half of all
the marriage litigation which survives from the fourteenth and fifteenth
centuries.7 The fall in surviving marriage litigation from the last sixty
years of the fifteenth century - which follows a national trend - has
generally been interpreted as the expression of a fall in the amount of
litigation heard by the ecclesiastical courts. Remarking on courts other
than York, Richard Helmholz ascribed the fall to a change in social
conventions and Martin Ingram has suggested the additional factor of an
increased unwillingness on the part of ecclesiastical judges to pass sentence
for clandestine marriages.8 R. M. Smith has suggested that observed
changes in marriage litigation patterns could have been due to the
introduction of new remedies in the secular courts to deal with such
litigation,9 while P. J. P. Goldberg sees the decline in surviving marriage
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litigation from fifteenth-century York as the result of a male backlash
against women's participation in the work force, which had been made
possible by the sudden demographic recession caused by the Black Death
in the previous century.10 To these explanations must be added the
suggestion that the changes in litigation patterns which the modern
historian observes are a reflection of changes in contemporary legal and
archival practices.
In York there is clearly a fall in the survival rate of cause papers in the
later fifteenth century, but that fall is not corroborated by a comparable
fall in the total number of cases recorded in surviving act books.11 This
may be explained by such factors as the transfer of certain kinds of
marriage cases to the secular courts, an increase in the matrimonial
litigation heard by lower jurisdictions in the northern province or changes
in record-keeping. K. F. Burns, who analysed the surviving fifteenthcentury act books and act book fragments as part of an unpublished
Leverhulme project, pointed out that individual registrars had different
ways of recording cases. Among the examples of different practices
mentioned is that some registrars did not record reconventual cases (cases
in which the defence took the shape of a counter-charge) as separate cases,
while others did, and that some registrars recorded summary proceedings,
arbitrations and purgations, while others did not.12 However, despite such
variations in practice, the total number of cases which the registrars
recorded in the act books varied little and shows no evidence of a falling
case load. It is evident that the variation in registrars' recording practices
affected the survival chances of certain types of cases or certain types of
documents and that survival rates varied over time. Although the single
factor of variations in archival practice cannot explain the observed
variations in the survival of litigation it was clearly a contributory factor.
Some registrars were doubtless more meticulous than others in preserving
case files, and certain types of cases which would have been discarded by
one registrar may have survived in the archiepiscopal archives because of
the whim of another.
The volume of cases recorded in surviving fifteenth-century act books
also makes it clear that the cause paper material represents only a fraction
of the business conducted by the court. During the six years documented
by the act books, the registrar of the court recorded 533 cases. Only some
571 cause paper files survive from the fourteenth and fifteenth centuries
combined. Thus, if the annual case load was of the same magnitude in the
fourteenth and fifteenth centuries, the courts would have dealt with
approximately 18,000 cases and the surviving cases would represent about
one-thirtieth of the total number of cases heard by the court. The
surviving cases appear to be a representative sample of litigation in York
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1330-39 1340-49
| H Matrimonial
1360-69 1370-79
I Non-matrimonial
FIGURE 1. Matrimonial and non-matrimonial case load in the York consistory court,
1301-1399, by decade.
and no overall principle behind their survival can be discerned (see Figure
1). The sudden fall in non-matrimonial litigation in the decade 1370-1379
can be explained by chance: a /-square test reveals that the fluctuations
are within acceptable limits and there are no recorded plagues or
epidemics in this period which might otherwise explain the aberration.13
Furthermore, the fact that the number of marriage cases increased steadily
during the entire century lends credence to the claim that the fluctuation
in cases is a random deviation in survival rates rather than a significant
reflection of a changing case load.
Unrecorded changes in the organization of the court would also
influence the frequency of marriage litigation heard at the consistory court
in York. For instance, it is clear from the cause paper files that
archdeacons' and deacons' courts in Yorkshire dealt with matrimonial
litigation.14 These courts were inferior to York and drew their cases from
the same geographical area as the archbishop's courts. Apart from the odd
case whose documents were transmitted to York on appeal, none of the
documentation produced by these courts survives. Thus, there is no way
to ascertain the volume of litigation that passed through them, nor is it
possible to refute the notion that the observed fall in the number of
matrimonial cause papers from the latter part of the fifteenth century was
due to an increased efficiency on the archdeaconal level or to an increased
willingness among the laity or the official's court in York to accept the
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decisions of the lower courts. This point is all the more important since the
boundaries between the two levels of jurisdiction were vague throughout
the period. The consistory court only reserved for itself the right to hear
'major cases'.15 Such an ambiguous definition afforded the consistory
court considerable discretion in its choice of which cases to claim for itself.
The observed fall in matrimonial cause papers can thus be at least
partially explained by an increased willingness on the part of the
consistory court to let lower courts deal with minor cases.
Obviously, the effects of changes brought about by the ravages of time,
changes in the internal organization of the court in York, an increased
willingness to accept the arbitration of a lower court and changes in
jurisdiction between the official's court and courts at the diaconal level or
between common law courts and ecclesiastical courts must be incorporated in the wider application of results from the York material.
However, there is no reason to doubt that the cause papers are a
representative sample of the business heard by the courts in York in the
fourteenth and fifteenth centuries, and for this reason they can provide
much information about the identity of the litigants and how well the idea
of arbitration by law in marriage disputes had been absorbed in
fourteenth-century York.
The first question that must be asked when approaching the cause papers
is 'Whose litigation survives?' The answer raises two important points
about the sociology of the court. First, it is evident that easy access to the
courts was a major factor in the decision to litigate. People who lived near
main roads which led to a town where an ecclesiastical court convened
were more likely to litigate than those who did not enjoy such easy access
to the courts. Secondly, the higher the status a person enjoyed, the more
likely s/he was to come into contact with the courts in York. It is also no
surprise to find that all but one litigant claimed to be of free status.
However, it is surprising that the free status of a litigant was only
challenged in three cases, particularly considering the fact that exceptions
to libels or witnesses were frequent and often little more than recorded
shouting matches.16 The irregularities in the composition of the population
of litigants are reflected in the group of witnesses, whose sex ratio, agedistribution and occupational structure are certainly not representative of
society as a whole. It can also be suggested that the litigants were biased
against a large section of the population - the unfree - who were open to
such exceptions by their opponents that litigants may have felt that to
produce an unfree witness could actually jeopardize the successful
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>60 miles (10)
51-60 miles (4)
j T ^ B
0 10 miles (28)
41-50 miles (9)
31-40 miles (7)
1-20 miles (14)
21-30 miles (16)
FIGURE 2. Litigants' distances from York (N = 86).
outcome of their cases. It is certainly the case that only a few unfree
witnesses appeared in the surviving fourteenth-century cause papers.
Only two cases are too fragmentary to determine their provenance.
Thus, the geographical origin of 86 fourteenth-century cases can be
determined: of these 42 cases were initiated by litigants who lived less than
20 miles from York (see Figure 2)17 and no fewer than 62 surviving cases
came from within a 40-mile radius of York.18 This association is even
more marked when the distance to the first court to hear the case is
computed, in which case it becomes clear that 61 of the 86 cases were
initiated in courts less than ten miles from the plaintiffs normal place of
residence and 74 cases were initiated within a 40-mile radius of the local
court. Considering that the archdiocese of York included most of
northern England and that the court in York heard appeals against the
decisions of the courts within the provincial jurisdiction,19 one would have
expected to see more cases originating from a greater distance from the
ecclesiastical courts in York. However, most litigation preserved in the
cause papers was heard by the York courts as first-instance litigation or
was sent to the court on appeal.
A further aspect of the geographical distribution of litigation attracts
attention. When the litigants' home villages are plotted against a map of
known medieval roads it becomes clear that the vast majority of cases
originated in villages having good road access to the courts in York. Only
a few cases originated outside the Roman road network, and only a small
number of cases originated in locations with no known major roads.20
Virtually no litigation originated from beyond the Pennines, which
separate the archdiocese in the north-south direction: litigants from this
area would have had to travel north of the Pennines almost as far as
Carlisle and then follow the Roman road to York or go south as far as
Chester and Stoke before turning north towards York (see Figure 3). Thus
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Carlisle \
Trackways & Roman
= = roads in use in the middle
- - - Gough & Paris Maps
— • Royal Itineraries
—— Trent Ouse
Missing Links
A 1 Marriage Case
Lancaster^ ^ * ^
50 km
FIGURE 3. The origins of York marriage litigation cases and known medieval roads.
the litigation preserved in the cause papers originated within a limited area
which was heavily influenced by an urban economy. Cases which did not
originate in an urban environment usually came from a village settlement
in the economic hinterland of a city. If litigants came from villages these
were not far from York or they enjoyed relatively easy access to that city.
Furthermore, in most cases, when litigants came from villages, such as in
the case of Staindrop c. Dale (CP E 215), one of the litigants was an
apprentice in a town who had decided to marry a woman in his former
rural community.
Thus, the geographical distribution of the litigants and their relatively
easy access to York21 indicate that marriage conflict was more likely to be
settled in the local community the farther removed it was from the courts
in York, and that lower status group litigants were more likely to appear
before the York consistory court in its function as appeal court for the
At first glance it appears virtually impossible to find evidence for litigants'
wealth - particularly in the case of plaintiffs, who were usually female.
Traditional sources such as poll tax returns and probate registers
notoriously underenumerate women.22 Women were also more likely than
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men to die intestate since married women's estates would usually not be
distributed upon their death and their right to make a will remained a
moot point throughout the middle ages.23 Similarly, the Freeman's Rolls
of York - which have been used with great success by Barrie Dobson to
show the occupational structure of the city24 - provide little evidence
beyond the fact that a person with the same name as a (male) litigant was
admitted to the freedom of the city, sometimes giving that person's
occupation. However, internal evidence about litigants' status can be
found in about two-thirds of the cause papers themselves. Status is not a
firm measure of economic ability, but it allows the historian to place most
of the litigants in their social context. In the following, I have estimated
the status of individual litigants using a system of five status groups
numbered 1-5, 1 being the highest and 5 being the lowest.25 The status
groups are not intended to reflect the economic power of the litigants, nor
are they intended as an index of their income. Instead they reflect the
litigants' relative positions in a social hierarchy which a fourteenthcentury Englishman would recognize. This hierarchy took into consideration factors other than economic ability, such as the offices a person
held and his or her family background and claim to titles in land and
wealth. The placement of individual litigants in particular status groups
can be discussed,26 but the important point is that the status groups give
a broad indication of the relative status of the people who used the
ecclesiastical courts to settle their marriage disputes in the northern
province. Whenever possible, the cases have been categorized according to
the status of the plaintiff, since the plaintiff made the initial approach to
a member of the court. If they informed the court of their occupation,
women have been put in the corresponding category. If no evidence about
the woman is available, she has been put in her father's or de facto
spouse's status group. The same has been done in the case of unmarried
men whose status could not be identified in other ways.
Although familiarity with the cause paper sources allows the historian
to develop a good impression of the status of individual litigants on the
basis of the kind of case they argue or the kinds of people with whom they
associate, the litigants' status has only been identified by three means. The
simplest identification is the one that the litigants made themselves.
Litigants frequently informed the courts about their status by quoting
their title, their occupation, their income or the value of their belongings.
Another means of identification used is the evidence of witnesses, who
regularly commented on the suitability of a marriage by referring to the
relative incomes of the parties or recorded the value of a marriage
settlement. Thirdly, circumstantial evidence has been used. For example,
when a witness said that a litigant planted afieldas a dowry for his alleged
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- Status Group 1 (6)
Unidentified (20) - y ^ ~
^ ^ ^ ^ ^ ^ _
Status G r o u p 2 (1,,
Status Group 5(1)
Status Group 3 (21)
Status Group 4 (30) -
FIGURE 4. Litigants' status groups (including unidentified cases) (N = 88).
wife and other witnesses claim that she ' behaved as his wife in matters of
selling and buying corn' the man in question was undoubtedly a farmer.27
Since identifying oneself by 'status or mystery' was not common until the
early fifteenth century, those litigants who identified themselves had some
reason to do so. Usually they wanted to impress the courts that they were
respectable people. Hence, by using the evidence of the litigants
supplemented with that of witnesses and other surviving cause paper
material (especially the defendants' replies to the libel (the initial
presentation of the plaintiffs complaint to the court) or either litigant's
exceptions to witnesses28) it is far more likely that an identification is going
to be provided by someone who was at least in his or her own view
respectable, and it is doubtful that anyone who had the slightest claim to
being a knight or a squire (or a daughter or spouse of one) would fail to
draw the court's attention to his or her status. On the other hand, the
members of Status Group 5 were likely either to request the protection of
the archbishop or to be cited as paupers in the defendant's replies to the
libel or in the exceptions. The method employed will therefore tend
towards a precise assessment of higher status groups and towards an
overenumeration of members of the lowest status groups. Of the 88
surviving marriage cases 68 can be classified by the means outlined above.
Thus a firm classification can be made in around two-thirds of the
surviving cases (see Figure 4). In the remaining third of the surviving cause
paper files, a close reading did not bring any evidence to light that they
might have originated in marginal status groups.
Helmholz commented that it was his impression that litigants in the
York cause papers as a group were wealthier than the litigants in marriage
cases preserved in other dioceses in England.29 An analysis of the social
backgrounds of the litigants in the cause papers partially substantiates this
claim: in the 40 cases where one or more of the litigants identified their
own social backgrounds they came from Status Groups 1-3.30 Of these 40
cases 16 involved people who insisted on using their honorary title or who
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were related to a member of the Curia Eboracensis or to another highranking cleric (e.g. to a proctor of the Curia Eboracensis or to the guardian
of a hospital31). The words dominus, nobilis vir, miles or nobilis mulier and
domina were used to describe at least one of the litigants in 5 enforcement
cases,32 6 cases of annulment of marriage33 and 5 other cases.34 Twelve of
these cases have been classified as belonging to Status Groups 1 and 2. At
the other end of the social scale, only one plaintiff can positively be
identified as unfree; none of the plaintiffs informed the court that they
were of unfree status and the free status of a litigant was rarely contested.
This only happened once, but in this case the defendant was proved to be
The distribution of cases across Status Groups 1-4 is reasonably close
to what could be expected, but it is clear that the number of cases from the
higher status groups is out of proportion to their relative size in the
population at large, particularly for litigation originating in Status
Groups 1 and 2. One estimate of the total size of the gentry and nobility
in the fourteenth century puts their number at approximately 10,000
families (which would comprise around 35,000 individuals), from a total
population of some two and a quarter million individuals in the whole
country.36 Taken together, Status Groups 1 and 2 initiated more than onefifth of all surviving marriage litigation in York. Although their share in
the surviving York litigation is out of all proportion to their numbers in
the population at large, their share of surviving marriage cases reflects
their familiarity with the legal process. Well-educated and wealthy people
knew the rules of litigation and had the money and confidence to litigate.
Poorer people needed to make a special effort to go to the courts; though
the cause papers do not contain any identified ex officio marriage
litigation, 12 cases were appealed to York by appellants who had been
compelled to appear before a lower court.37
Charles Donahue has speculated that, as the distance from the court in
York increased so did the wealth of the litigants.38 An analysis of litigants'
average distances to the court by status group confirms that lower status
groups were more likely to have initiated their litigation at a lower court
before their cases were heard in York.39 Two points can be made on the
basis of the figures: first, the litigants' status increased with their distance
from the court in York, and secondly, litigation in Status Group 4 was
more likely to be initiated in the litigants' local area and to be transmitted
to York on appeal. In both cases cost can help to explain these features
of the fourteenth-century York marriage litigation. The figures also lend
support to Charles Donahue's suggestion that there was a breakdown in
traditional family networks: the difference in average distance from York
and from the first-instance court found in Status Groups 3 and 4 is
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consistent with the hypothesis that among the lower status groups it had
become progressively more common to seek to settle marriage disputes in
the local community and that the familial networks that had supported
single women in the past were being replaced by institutional bodies such
as the Church courts.
The lack of plaintiffs in Status Group 5 is perhaps the most striking trait
of the cause papers, but, together with the difference in average distances
from the court in York and first-instance courts, it tends to amplify the
argument that cost was a major consideration influencing the decision to
litigate in York. Even if all the unidentified cases were to have originated
in Status Group 5, this status group would only account for 24 per cent
of preserved marriage litigation. This is all the more surprising because
Archbishop Greenfield, in his statutes for the court of 1311, aimed to
implement policies that would ensure equal access to the courts for all,
regardless of their economic background. Canon law allowed paupers,
widows and orphans the archbishop's special protection and general
access to the arbitration of the ecclesiastical courts was guaranteed to
almost every subject of the archbishop.40
Only one cause paper file mentions the cost of litigation. The case was
initiated as a case of abjuration sub poena nubendi before the dean of
Beverley.41 According to a witness, the defendant, Thomas de Midelton,
a chapman from Beverley, tried to settle the case out of court. He inquired
of the plaintiff, Margery Merton, who was a weaver:
how much she had spent on prosecuting said case. To which she said 55 shillings. And then
he said: ' I will pay you back. Have 20 shillings now in part payment. '42
The attempt to settle the case took place several months before the case
was transmitted to York and final litigation costs will therefore have been
much higher than the 55s. mentioned. The incident, however, tells us two
things about these litigants: first, that a weaver was willing to spend that
amount on a case, which she had initiated, according to her own
statement, because she did not like being made to look ridiculous by her
lover.43 Secondly, that the amount of 20s. in cash was apparently easily
available to Thomas de Midelton. Margery Merton and Thomas de
Midelton were members of Status Group 4, the lowest status group found
in numbers among the litigants. This suggests that, though the cost of
litigation was high, to most people who appeared before the courts in
York it was not prohibitive.44
However, the virtual absence of Status Group 5 litigants in the cause
papers contradicts the idea of equal use of the courts by all status groups.
There is no obvious reason why this might be: canon law claimed the right
to examine all cases involving marriage and provided a kind of legal aid
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Marital Rights
Alimony Cases
Other Cases
Sub Poena Nubendi
Annulment =
Marriage Enforcement
Matrimonial and Divorce
FIGURE 5. Marriage litigation by plaintiffs gender.
under which a pauper paid nothing to conduct a case.45 Although it
should have been possible for anybody to litigate in the courts in York,
and although there is evidence that litigation was not prohibitively
expensive, it has been shown that an expected section of the population
simply does not appear before the courts. Among the cause paper litigants
there are servants and labourers, farmers and citizens, but only one serf.
It has been common among historians to assume that one gender was
more likely to initiate marriage litigation before ecclesiastical courts than
the other.46 An analysis of plaintiff's' gender confirms that women initiated
many more cases, both in York and at the first-instance courts. Just over
two-thirds - 59 - of the surviving matrimonial York cause papers were
initiated by women at the first instance of the court (see Figure 5).47 Only
29 cases were initiated at the first instance by men.48 Among the 28 cases
which had more than one plaintiff,49 18 women appeared in the first
instance of the court to claim a man in marriage.50 Of these, 15 women
tried to persuade the court to annul a marriage which the documents
identify as de facto (i.e. there was cohabitation and sometimes children in
a union between the claimed spouse and another woman), and to enforce
their marriages to the male defendant.51 In 3 of these 28 cases, two women
were competitors for the same man.52 In 4 multi-party cases, 2 men
claimed a woman in marriage before she had set up a (de facto) marriage
with any man.53 Thus the latter 4 cases did not involve the dissolution of
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an ongoing marriage. Of the remaining 6 multi-party cases, 3 were cases
of precontract, all of which were brought by men in the first instance.54
The plaintiff cannot be identified in 3 multi-party cases.55 If thefiguresare
further broken down into types of cases this gendered trend remains
among the largest groups of surviving litigation (see Figure 5).58 The two
major types of litigation - enforcement and matrimonial and divorce (in
which a plaintiff seeks the annulment of another marriage and the
enforcement of his/her own marriage to one of the spouses) - have an
approximate two-thirds majority of female plaintiffs. The unusual types of
cases from a gender-distribution point of view are annulment, sub poena
nubendi cases, divorce a mensa et thoro and alimony and restoration of
marital rights cases. All but one of these four types of cases are entirely
gender-specific. The causes of these irregularities are different for different
types of case.57
All the sub poena nubendi cases which the archbishop's court heard
started as ex officio cases at a lower jurisdiction when the parties to a longlasting relationship were called before the court to answer a charge of
fornication. If both parties denied the charge they were dismissed to their
consciences by the court. If they both confessed to the fornication, the
court required them to solemnize a marriage at a church after the reading
of banns. If they refused to marry, or if only one party claimed that sexual
relations had been taking place, the court required them to exchange a
conditional vow of marriage, which stipulated that if they had subsequent
intercourse they would ipso facto be married. When the case had gone this
far it became possible to hear it as an ordinary instance case.58 All the sub
poena nubendi cases which the Curia Eboracensis came to hear were
instance cases in which a woman claimed that she had had intercourse
with the defendant after they had exchanged such a conditional vow.59
Surprisingly, only one of these cases was initiated by a woman who
claimed that she had the defendant's child subsequent to a sentence of sub
poena nubendi at a lower court.60 Logically, it was possible for a man to
claim subsequent intercourse with a woman, but not one of the cases
preserved in the York cause papers has a male plaintiff.
Women were the sole plaintiffs in thefivesurviving causa divortii quoad
mensam et thorum cases.61 Given that these cases always dealt with severe
cruelty between the spouses it is not surprising that men should not bring
these cases to the Curia Eboracensis. Because of the way the courts work,
male violence has always been more visible, tending to consist in
individual acts whose occurrence the courts can establish reliably by
proof. To use Mr Justice Devlin's famous phrase in summing up R. v.
Duffy (1947), the men who appeared before the court in York in these
cases appear to have attacked their wives during' a sudden and temporary
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loss of self-control, rendering [him] so subject to passion as to make him
[...] for the moment not master of his mind.>62 Although the libel in these
cases always claims a long-lasting dissent among the spouses, the courts
required, and often obtained, proof of single instances of violence. This
does not mean that women were not violent: but their violent behaviour
tended to be more surreptitious: in two cases, a woman had either
threatened to murder her husband when he was asleep or actually tried to
poison him.63
Cases for the restitution of marital rights and cases dealing with
alimony were brought exclusively by men. The three alimony cases were
all incidental to litigation brought by women at other courts, being either
appeals against the size of an awarded alimony while the original case was
being heard by the apostolic see64 or depositions about disputed payments
of alimony granted in the past.65 The former two cases were appeals
against the size of alimonies awarded in previous litigation at the bishop's
court in Lincoln and at the Court of Arches in London. Both cases were
not appeals against the actual award but objections to the size and the
enforcement of the alimony. Although these three cases survive in York
as cases brought by men, they were clearly provoked by litigation that had
been brought by women at other courts. The two restitutions of marital
rights cases were also brought by men.66 Both are relatively straightforward cases in which a man who, when abandoned by his wife, sought
the help of the courts to reassert his rights over her (and her property).
One case was successful in the first instance,67 the other was abandoned
after 18 months of litigation. As was the case for alimony cases, one of
these cases - CP E 248 - was actually brought to the attention of the
archbishop's special court of audience in an attempt to forestall a case
brought by the woman at the commissary's court in York.68
The overwhelming majority of female plaintiffs is reflected in the
surviving sentences: 35 sentences by a first-instance court were passed in
favour of the woman,69 and 20 sentences in the first instance favoured the
man's position.70 Women were also more likely to appeal against the
decision of the court. Of the 20 appeals heard by the Curia Eboracensis 13
were made by women.71 Fourteenth-century York women were thus both
more likely to approach the courts to settle their disputes with men and
more tenacious in their attempts to enforce marriage. The court - which
showed a decided pro-plaintiff bias in its sentencing72 - seem to have been
a useful ally in women's attempts to assert their marital rights against
wayward husbands.
The high proportion of female plaintiffs in York does not support
Goldberg's hypothesis that women used the changed economic conditions
of the late fourteenth century to exercise more control in their choice of
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whether and whom to marry. Women in the northern province used the
courts more often and were more anxious to preserve or uphold marriage
than men. For the time being their reasons for this preference for marriage
are unclear, but it may be suggested that in the decades after the first
outbreak of the plague women suffered more economic disadvantage than
men. A number of factors, cultural and economic, combined to limit
women's freedom to choose between marriage and spinsterhood. In the
early part of the century single women had enjoyed the protection and
support of their family networks, but the loss of a large proportion of the
population in the plague meant that single women were likely to find
themselves without familial support in the local community, because of
either death or emigration to other areas in search of work. Latefourteenth-century women would also have found themselves increasingly
unable to maintain independent households because of rising prices on
staple goods and unable, due to the rising cost of labour, to hire servants
to do the work they could not do, either because of their perceived lack
of physical strength or because of other cultural barriers, such as their
inability to join certain trade guilds. In the absence of traditional family
networks and because of their limited options in regard to work, marriage
- which in economic terms meant the pooling together of two individuals'
resources - increasingly became the prime solution to the lack of economic
security for women. This combination of cultural and economic pressures
thus gave women a powerful incentive to seek the help of the law when the
men of their choice refused to meet the obligations of marriage.73 Men, on
the other hand, rarely stood to gain from matrimonial litigation. In most
cases they were of the same status as the woman and of comparable or
superior wealth.74 In at least two cases, however, the male plaintiffs main
motivation for bringing the case appears to have been a desire to acquire
or maintain rights over properties belonging to the woman sought in
The age-distribution of the witnesses who appeared in the cause papers
gives us some further insights into the sociology of the court in York. The
most noticeable feature of this population is that the sex ratio observed in
the population of litigants is inverted among the witnesses. Out of 565
witnesses who are identifiable by gender, 389 were men and 176 women.
Approximately half (275 witnesses, comprising 80 women and 195 men)
informed the court of their age. As one would expect, there is an underrepresentation of members of the age group 0-19 years. A witness had to
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40 °
s in Yor
30 >
20 f
8 30c
10 g
Level 4 males
York males
FIGURE 6. Male model life table (West Mortality Level 4 Stable population) compared to
the York witnesses. (Source: Ansley J. Coale, Paul Demeny and Barbara Vaughan, Regional
model life tables and stable populations, Studies in Population (New York, 1983).)
be legally competent in civil cases - that is, he or she could usually not be
less than 15 years of age.76
In order to further investigate the degree to which the population of
witnesses in York can be said to be a true representation of the population
at large, the population of witnesses was divided into male and female
witnesses and their age-distributions were compared to a number of model
life tables representing reasonable assumptions about fertility and
mortality levels in the fourteenth century." Comparisons were made to a
number of demographic regimes, stationary, increasing and decreasing,
and it was found that the best fit to the observed population of male
witnesses was represented by a model life table West Mortality Level 4
Stationary population. For female witnesses, the best fit to a model life
table was found to be life table West Mortality Level 4 Growing
population. For reasons of clarity, only graphs comparing the population
of witnesses to Mortality Level 4 leaving out witnesses of less than 20
years of age will be presented here.
As can be seen in Figure 6,78 there is a good fit to the men's model life
table, particularly among the older witnesses. In other words, the
population of witnesses in fourteenth-century York has the proportion of
old men one would expect in a population that conforms to a West
Mortality Level 4 Stationary population.
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20-29 30-39 40-49 50-59 60-69 70-79 80-89 >90
- • - Level 4 females
- ^ t York females
FIGURE 7. Female model life table (West Mortality Level 4 Stable population) compared
to the York witnesses. (Source: Ansley J. Coale, Paul Demeny and Barbara Vaughan,
Regional model life tables and stable populations, Studies in Population (New York, 1983).)
A somewhat different picture emerges when the female population is
compared to a Level 4 Stationary age-distribution table (see Figure 7).
There is a good fit for individuals up to fifty years of age. However there
are many fewer older women who are witnesses. One possible explanation
is that the sample reflects some particular event in women's lives, such as
marriage or childbirth, both of which would tend to limit women's
mobility in the local community, and therefore also their opportunities for
attending or accidentally overhearing exchanges of vows. This possibility
must be rejected, though, since the fall in the representation of female
witnesses occurs around the age when one would have expected to see an
increase in women's mobility with their children no longer so dependent
on the presence of their mothers. Another explanation may be that the
proposition that we are dealing with a stationary population is wrong.
The age-distribution of the female population is commensurate with a
Level 4 Growing population, and if the population of male witnesses is
compared to a growing population it is clear that the possibility that there
is an over-representation of older males among the witnesses in the cause
papers cannot be discounted. Whatever the cause, the fact that the two
populations cannot be made to conform to the same model life table
suggests that other selection criteria than pure chance are at work. The
fact that there is such a good fit between the male population of witnesses
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and a reasonable age-distribution table and that there is a correspondingly
poor fit between the same age-distribution table and the female population
of witnesses should warn us not to consider the witnesses as constituting
a representative sample of the population of the northern province.
Only a quarter - 141 - of the witnesses informed the Curia Eboracensis
about their occupation. By far the largest group among these witnesses
consisted of clerics: 71 people were employed by the Church in one
capacity or other. The largest groups were made up of 22 chaplains and
17 unspecified clerici. Among the remaining 36 clerics are 6 parish priests,
6 notaries public and a number of nuns, monks and members of the
courts.79 Among the 70 lay witnesses who gave their occupations to the
court, the largest single group consisted of 22 servants. The term serviens
with the name of their master, which was used by these people to describe
themselves, in most cases meant that they were employees of their master
rather than that they were his serfs. Most of them make it clear that they
are on a contract of employment which is of limited duration. Eight
people inform the court that they are literati. It is unclear what this
description is supposed to convey: they appear in cases where their ability
to read is not an issue; they are not called to witness a written contract or
appeal. All 8 appear to be wealthy men, but apart from that it is
impossible to characterize them further. In contrast, the 4 witnesses who
characterize themselves as laid are called to witness that a plaintiff has
handed in a written appeal against a sentence of a lower court.80 Among
the rest of the witnesses who informed the court of their occupation are
craftsmen of various kinds - from goldsmiths to butchers, tailors, saddlers
and a runner for the archdeacon of Burton.81 Although many undoubtedly
appeared before the court, only a few of the witnesses describe themselves
as agricultural labourers or farmers. We learn from depositions over the
exceptions lodged against their testimony that a further 2 witnesses were
paupers and one of these was a mentally retarded beggar.82
It is likely that the reason for this preponderance of clerics is that both
the litigants and the court felt that their occupation carried a certain value,
especially in the kinds of cases that are investigated here. In a manner of
speaking, they were expert witnesses. Their clerical training sensitized
them to the meanings of the vows that they witnessed, and in some cases
they were even called by the parties or by their parents to recite the words
of the vows that made a marriage legally binding so that the parties could
contract marriage in a way that expressed their intentions. A strong
presumption in favour of marriage seems to have been created if testified
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to by a cleric. None of the preserved decisions of the court went against
marriage if a priest or notary public claimed that he had been present at
an exchange of vows that established marriage by verba de presenti. If a
cleric testified to his knowledge of celebrations of marriage, that marriage
was only dissolved by the Curia Eboracensis if the marriage could be
shown to be invalid for other reasons such as force and fear, consanguinity
or legal incapacity.83
The under-representation of Status Group 5 among the witnesses is best
explained by the rules of canon law governing the production of evidence.
The decretalists formulated the rule that anyone could give evidence in a
case before an ecclesiastical tribunal, subject to certain important
qualifications. Among those not qualified to give evidence, Tancred
mentions the unfree, along with women, slaves, domestic servants, the
underaged, the insane, the infamous, paupers, the infidel and enemies of
the litigants.84 If a witness could be shown to be inadmissible, his/her
evidence would be suspect. If, furthermore, that witness was one of only
two witnesses to overhear an exchange of vows and if there was no
supplementary proof, his disqualification could mean the difference
between winning and losing the case. Against this background it is
reasonable to assume that proctors and advocates would have tried to
persuade their clients to produce witnesses who were not subject to the
exceptions of academic law. In any case, the testimony of such people
could easily be outweighed by contradictory evidence by higher-status
witnesses.85 Although there are no surviving instances of a judge refusing
to accept the evidence of any of these groups, it is clear that the courts
could be said to be reluctant to accept their evidence. Mental illness and
status as a pauper was argued in CP E 92, enmity in CP E 202 and
excommunication in CP E 248. Among the remaining cases with
exceptions to witnesses, the objections were of a more general kind: that
the witness's character was such that he could easily be persuaded to tell
a lie or that the witnesses could be expected to lie because of employment
in the household of the other litigant. Thirty-five matrimonial cause paper
files contain such exceptions to witnesses.86 Thus it is not surprising that
litigants should want to avoid using serfs as witnesses whenever possible.
However, whatever the reasons for their absence may be, the fact that
there are so few members of Status Group 5 among the witnesses must
make us wary of using the cause papers as evidence for all sections of
medieval society.
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The jurisdiction of the archbishop's courts in York covered a large
geographical area and the litigation preserved in the archiepiscopal
archives reflects the unique nature of that jurisdiction in its social and
geographical composition. An analysis of the status of the litigants
showed a disproportionately large group of litigants from Status Groups
1 and 2, indicating that wealth was a major factor in matrimonial
litigation in York. The geographical distribution of the cases also showed
marked anomalies: people who lived close to a court were more likely to
litigate than those who did not. With regard to witnesses, their agedistribution shows that it is an open question whether they represented a
cross-section of medieval English society. The almost perfect fit of the
male population of witnesses to a male model age-distribution table (West
Level 4 Stationary population) suggested that the witnesses comprised a
representative sample of a stationary population, but a comparison of
female witnesses to a similar model age-distribution table showed a
marked deviation from the model. With regard to the issue of freedom
among the cause paper witnesses, it seems that a large section of the
population - the unfree - was not perceived as desirable as witnesses,
presumably because the rules of canon law and the self-interest of the
litigants conspired to keep the unfree out of the courts. Learned canon
law's reluctance to admit the evidence of the unfree means that, although
the unfree were not excluded from giving evidence in ecclesiastical courts,
their functions as witnesses were limited compared to free people. Their
relative absence must also support the allegation that the cause papers do
not represent a representative sample of the population of medieval
The use of legal institutions is not only influenced by the spread of ideas
or the prevailing economic climate. Simple factors, such as the cost of
litigation and physical distance from a court, conspired to keep those
litigants who suffered from the dual disadvantages of low status and poor
access to York away from the archbishop's courts. Instead, the
archbishop's courts primarily allowed those people who were wealthy or
within easy distance of the courts to settle their marriage disputes, while
those at a greater distance were left to settle in their own local community.
The relatively high proportion of appeals from lower jurisdictions
initialized by lower status groups indicates that the local courts served a
useful and important function as an arbiter of marriage disputes and that
the composition of the population of litigants would have looked
significantly different if it had been drawn from one of these lower courts.
Almost by definition, the fourteenth-century York matrimonial cause
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papers show unusual experiences of marriage. However, it is still possible
to learn a good deal about marital contracts and relationships as long as
no attempt is made to apply these experiences wholesale to the population
at large. Instead, any analysis of the surviving cause paper material must
establish the location and status of the litigants and their witnesses. For
the reasons presented above, analyses that attempt to quantify the
evidence of the cause papers must be read with the important caution that
the ecclesiastical cause papers probably present the lives of a small,
seriously biased and unrepresentative sample of the population and that
they contain the litigation of an urban and social elite well removed from
the average experience of marriage. It is clear that the majority of litigants
had easy access to the court, and - in the case of those litigants at a
distance from York - that their proposed marriages offered sufficient
rewards to one of the litigants to motivate them to seek the arbitration of
a faraway court. The evidence contained in ecclesiastical court papers is
at its best when used as evidence for the development and application of
the law, and must be used for evidence of events outside the sphere of the
law with the highest caution. If this is done with circumspection and
tempered by a knowledge of the dynamics of the courts and of the
application of canon law, these court records will still yield important
insights into the structure and practice of married life in the middle ages.
These are the five medieval status groups used in this article:
1 land-owning nobility, owning land in more than one county;
members of noble families who regularly received summonses to
2 land-owning nobility or gentry with possessions in one county;
holders of royal commissions; parliamentary representatives and
holders of civic offices; citizens owning land outside the city;
members of the clergy in York
3 all other people designated as citizens, artisans and craftsmen in the
cause papers; landowners not identified as Dominus or Domina;
people who have a member of the clergy in their family
4 small-scale farmers; servants; labourers who are not identified as
unfree; people possessing goods worth more than one mark
5 paupers; minors; people of servile status; people possessing goods
worth less than one mark.
To give an impression of the range of evidence employed to place the
litigants in status groups, some examples of how litigants were placed in
individual groups are given here. In all computations in the main article,
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I have equalled one case to one entry, and categorized the case according
to the plaintiffs status group. Positive evidence about status is available
for a number of litigants either in the cause papers themselves or in
supplementary sources.
Among the plaintiffs belonging to Status Group 1 is Katherine, the
daughter of Sir Ralph Paynell, who pleaded for an annulment on the
grounds of her husband Nicholas Cantilupe's impotence in 1368. She was
of the Paynell family who came over with William the Conqueror. Her
ancestors re-founded the Priory of the Holy Trinity, York in 1090-110087
and further endowed it in 1166-1179.88 Katherine's father, Ralph Paynell,
was a sheriff of Yorkshire and the Paynell family owned land in several
counties.89 Katherine Hiliard, the widow of Sir John Hiliard, who
appeared in a plea for her dower to be assigned to her from her step-son,
Peter, claimed that the dower consisted of one-third of 24 messuages, 1
mill, 16 bulls, 21 bovates, 5f acres of meadows, 8 shillings in rents, and
pasture for 300 sheep with the things that relate to them, in the villages of
Arnall, Dripole, Riston, Preston, Sutton, Hedon and Carton. She and her
husband also paid a chaplain to go to the papal Curia where he stayed for
three months trying to obtain a dispensation for their consanguinity. She
has been placed in Status Group I.90
Family relations and circumstantial evidence from the cause paper file
itself place the plaintiff Alice de Welewyk in CP E 79, in Status Group 2.
She was related to the prior of Warter and to the guardian of the hospital
of St Giles in Beverley and worth a bribe of 12 marks to keep silent about
her previous marriage to the litigant, Robert de Midelton. Family and
independent evidence places Agnes de Huntington, who sued for a divorce
from Simon de Munkton in CP E 248, in Status Group 2.91 She was the
step-daughter of Hamo de Hessay, the parliamentary representative for
the city of York at the Parliaments of 1337-1338, 1339, 1352 and 1353.92
Her deceased father, Richard of Huntington, owned land outside the city,
which he left her on his death.93 Internal evidence shows that William
Aungier, the plaintiff in CP E 76, was from a wealthy family like Alice de
Welewyk. Although none of the witnesses attempted an estimate of how
much he owned, he was so wealthy that his wardship was purchased by the
steward of the Duchess of Hastings at a price of 10 marks. He was brought
up by the steward's brother, who was a priest in Elsing in Norfolk, where
there was a school which William attended. William Aungier is categorized
as Status Group 2. Among the clerics whose names appeared in connection
with marriage litigation, we find two proctors of the Curia Eboracensis:
William Calthora (CP E 175) and William Cawod (CP E 245). William
Calthorn's opponent, Johanna Fossard, was of a wealthy York family
enfeoffed to York property by the Earl of Mortain.94 She was the plaintiff
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and consequently the case is categorized as Status Group 2: had William
Calthorn been the plaintiff, the case would have been reduced to Status
Group 3. The widowed daughter of William Cawod,95 Emmota Erie, was
the object of the litigation by two male competitores: an apothecary and
a squire. She appeared as the defendant but all three parties in the case
belong in Status Group 2.
Twenty-five male litigants identified themselves to the court by their
trade. Of them 3 were saddlemakers,96 3 were tailors,97 2 were tanners98
and there was a representative for each of the trades of masons, potters,
rope-makers, barkers and drapers. All these have been categorized as
Status Group 4 . " Tradesmen were also common among the litigants in
the cause papers in York. Two male litigants described themselves as
chapmen, another as a spicer. These have been counted as members of
Status Group 4,100 as have the 5 litigants who informed the court that they
were serving as servants.101
The status of some litigants who did not explicitly identify their status
can be guessed at from circumstantial evidence. One such plaintiff clearly
worked the land, and therefore she is classified as a member of Status
Group 4. During the course of the case it transpired that her alleged
husband had sown two bovates of land for her.102 Another litigant was an
apprentice since he persuaded hisfianceeto postpone the solemnization of
their marriage until the end of his apprenticeship. Although this is not
made explicit in the cause paper file, it appears that Margaret Graystanes,
the plaintiff in the original case before the official of Durham, was a
servant in the household of the original defendant's aunt. Therefore the
case has been categorized as belonging to Status Group 4.103
The author gratefully acknowledges the financial assistance of the Carlsbergfondet and the
help and discussions on the present paper received from Charles Donahue, Jr of Harvard
Law School, Jim Oeppen of the Cambridge Group for the History of Population and Social
Structure and Marjorie Mclntosh of the University of Colorado, Boulder.
1 R. H. Helmholz, Marriage litigation in medieval England, Cambridge Studies in English
Legal History, 11 (Cambridge, 1974), 132-3 and 160-1.
2 Michael M. Sheehan, "The formation and stability of marriage in fourteenth-century
England: evidence of an Ely register', Mediaeval Studies 33 (1971), 228-63.
3 Charles Donahue, Jr, ' Female plaintiffs in marriage cases in the court of York in the
later middle ages: what can we learn from the numbers?', in Sue Sheridan Walker ed.,
Wife and widow in medieval England (Ann Arbor, 1993), 184.
4 Michael M. Sheehan, 'Theory and practice: marriage of the unfree and the poor in
medieval society', Mediaeval Studies 50 (1988), 457-87. The development of the English
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synodal legislation which allowed the implementation of the Christian ideal of marriage
is analysed in the same author's 'Marriage theory and practice in the conciliar
legislation and diocesan statutes of medieval England', Mediaeval Studies 40 (1978),
408-60. I have argued for a much deeper understanding of the canon law rules of
marriage formation among the laity in 'Did mediaeval laity know the canon law on
marriage? Some evidence from fourteenth-century York cause papers', Mediaeval
Studies 56 (1994), 111-52.
5 Excerpts from the Canterbury cases are printed in Norma Adams and Charles
Donahue, Jr, Select Cases from the ecclesiastical courts of the province of Canterbury, c.
1200-1301, Publications of the Selden Society, 95 (London, 1981).
6 A concise explanation of the kinds of documents produced by the ecclesiastical courts
can be found in Adams and Donahue, Select cases, 37-72.
7 Donahue, 'Female plaintiffs', 207.
8 Helmholz, Marriage litigation, 166-8; Martin Ingram, 'Spousals litigation in the
English ecclesiastical courts, c. 1350-1640', in R. B. Outhwaite ed., Marriage and
society: studies in the social history of marriage, The Europa Social History of Human
Experience (London, 1981), 69-72. Helmholz identified a decline in matrimonial
litigation in Canterbury, Rochester, Lichfield and Hereford but did not make comments
about York.
9 R. M. Smith, 'Marriage processes in the English past: some continuities', in Lloyd
Bonfield, Richard M. Smith and Kevin Wrightson eds., The world we have gained:
histories of population and social structure (Oxford and New York, 1986), 70. Smith
draws attention to the fact that common law courts began to allow the successful
plaintiff a possibility of recovering damages from the defendant for breach of promise.
Cf. S. F. C. Milsom, Historical foundations of the common law (London, 1969), 289.
10 P. J. P. Goldberg, Women, work, and life cycle in a medieval economy: women in York
and Yorkshire c. 1300-1520 (Oxford, 1992), 7; 201-66.
11 Only six complete act books survive in York, covering the years 1417-1420, 1425 and
12 See K. F. Burns, The administrative system of the ecclesiastical courts in the diocese and
province of York, Part I: The medieval courts (unpublished typescript, Leverhulme
Research Scheme, York, 1962), 165-6. Though only six complete act books survive
from thefifteenthcentury (see n. 11), Burns' comments are based on an examination of
all surviving act book fragments.
13 See Donahue, 'Female plaintiffs', 185 and 207-8.
14 The following fourteenth-century cases were heard by archdeacons' courts before the
York consistory court: CP E 23,25, 71, 102, 137,178, 191,223, 241b and 257. The dean
of the Christianity of York heard three cases before they were heard by the consistory
court: CP E 82, 159 and 198. (The cause papers are referred to as 'CP', with a letter
designating their century, i.e. CP E = fourteenth-century; CP F = fifteenth-century
etc.) For comparisons with other jurisdictions, see Helmholz, Marriage litigation, 145
and 177; Sheehan, 'formation and stability of marriage', 232-3; and Ingram, 'Spousals
litigation', 42-4.
15 See Archbishop Giffard's letter to Ruffinus, archdeacon of Cleveland: ' Intellegimus
enim quod cognitionem habetis causarum... nisi quod officiates nostri quandoque... ad
majores querelas...rescripserunt...vobis jurgiis et nobis causis majoribus...reservatis
(' For we understand that you have cognizance of causes... except for whenever our
officials respond to major complaints...quarrels being reserved for you and major
causes to us') (Burns, Ecclesiastical courts, 170).
16 See, for example, CP E 28, 103 and 137. Only in one case (CP E 103) did the plaintiff
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attempt to prove the allegation that her opponent was of unfree status. One witness
specified the degree of difference between the plaintiff and the defendant saying 'quod
dictus [reus] est potentior et ditior in bonis sed est servilis conditionis et nativus domini
ducis Lancastriensis et habet in bonis majoribus suis...[Pars actrix est] libere
conditionis ut [dicit ista jurata]' ('that the said [defendant] is more powerful and
wealthier, but he is of servile condition and a neif of the lord Duke of Lancaster and
has more in goods... [The plaintiff] is of free condition, as this witness says'). Common
objections to witnesses include that they were viles et plebes (e.g. CP E 82), that they
were bribed (e.g. CP E 1), that they were mortal enemies of one of the litigants (e.g. CP
E 82 and 92), or - at the more extreme end of the spectrum - that a female witness was
a procuress (CP E 82) and that a witness was mentally deficient (CP E 92).
17 In these 42 cases 25 plaintiffs lived in the city of York or its environs (CP E 14, 36, 82,
87, 89, 111,116, 121, 138,150, 155, 157, 158, 159,161, 175,198,216,221, 238, 239, 242,
245, 248), 3 came from within a radius of 10 miles (CP E 25, 148, 153) and a further 14
lived within a radius of 10 to 20 miles (CP E 6, 18, 40, 84, 85, 92, 95, 97, 113, 181, 188,
18 Plaintiffs from villages within a 30-mile radius (besides those already listed): CP E 6,18,
28, 37, 76, 92, 103, 106, 124, 178, 181, 186, 210, 211, 236, 274; other plaintiffs from
villages within a 40 mile radius: CP E 33, 61, 69, 79, 102, 114, 212.
19 The archdiocese of York covered the area represented by the present-day counties of
North, South and West Yorkshire, Humberside, Nottinghamshire, Humberside,
Greater Manchester, Merseyside, Lancashire, Durham, Cleveland, Tyne and Wear,
, Cumbria and Northumberland. For a detailed study of the boundaries of the
archdiocese see William Brown and A. Hamilton Thompson eds., The register of
William Greenfield, Lord Archbishop of York, 1306-1315, Parts 1 and 2, Surtees Society,
145 and 149 (Durham, 1931, 1934).
20 The map in Figure 3 is based on the map of a minimal aggregate road network produced
on the basis of known Roman roads, royal itineraries and two medieval maps (the
Gough and Matthew Paris maps), compiled by Brian Paul Hindle in his article ' Roads
and tracks' in Leonard Cantor ed., The English medieval landscape, Croom Helm
Historical Geography Series (London and Canberra, 1982, 193-218. The map in Figure
3 was drawn by Bernard Tranter.
21 As will be shown below, another factor supporting this conclusion involves differences
in the average distance from first-instance and York courts for different status groups.
22 For a survey of the poll tax evidence, see P. J. P. Goldberg,' Urban identity and the poll
taxes of 1377, 1379, and 1381', Economic History Review 43 (May 1990), 194-216. The
probate registers for the archdiocese of York do not begin until 1389.
23 Michael M. Sheehan, The will in medieval England: from the conversion of the AngloSaxons to the end of the thirteenth century (Toronto, 1963) and 'The influence of canon
law on the property rights of married women in England', Mediaeval Studies 25 (1963),
24 R. B. Dobson, 'Admissions to the freedom of the city of York in the late Middle Ages',
Economic History Review (2nd Series) 23 (1973), 1-22.
25 I have tried to define status groups in a way that would make sense to a fourteenthcentury Englishman by basing them on documents from the fourteenth and early
fifteenth centuries. I have, among others, consulted such documents as the Sumptuary
Laws of 1363, which regulated the clothes members of different social groups were
allowed to wear; the Statute of Labourers, which defined the terms and duration of
service, including wages; a list of trades in York drawn up by the common clerk, Roger
Burton, in 1415; and a settlement between the York mayor Nicholas Blakburn and
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Archbishop Bowet from 1411, which described the order of precedence to be observed
between various officers of the court and civic officials in civic and ecclesiastical
processions. Only one condition - in cases where a litigant had a member of the clergy
in his or her family - has been arbitrarily placed in the same status group as citizens,
artisans and craftsmen. Modernized texts of the Statute of Labourers and the
Sumptuary Laws can be found in A. R. Myers, English historical documents 1327-1485
(Volume 4 of David C. Douglas ed., English Historical Documents (London, 1969)).
Roger Burton's list of York crafts is found in R. H. Skaife's unpublished manuscript
Civic officials of York (York City Library, Reference Room) and the agreement between
Nicholas Blakburn and the archdiocese is paraphrased in Burns, Ecclesiastical courts,
The procedures adopted to establish the status of certain individuals are described in the
Appendix to this article.
CP E 85.
For a brief description of exceptions and replies to the libel, see Adams and Donahue,
Select cases, 37-72.
Helmholz, Marriage litigation, 160-1.
Status Group 1: CP E 12, 14, 46, 108, 179, 259; Status Group 2: CP E 15, 18, 62, 76,
79, 87, 89, 113, 175, 245, 248; Status Group 3: CP E 26, 36, 37, 61, 69, 124, 138, 153,
159, 161, 188, 198, 216, 221, 235, 238, 239, 242, 257, 263; Status Group 4: CP E 23, 25,
70, 77,82, 84, 85,92, 102, 111, 113, 114, 121, 126, 137,150, 155, 159, 181, 215, 223, 236,
241v, 242, 255, 256. A further 4 cases may be classified as Status Group 4 by
occupational surnames: CP E 1, 6, 135, 223. One case definitely originated in Status
Group 5 (CP E 103) and a further 2 cases may have involved a litigant from the same
status group: CP E 28 (the Status Group 5 litigant was the defendant) and CP E 137,
in which Master Thomas Ponteland, a witness for the plaintiff, gave the following
reason for his appearance as a witness in the case: 'Et dicit idem juratus quod quidam
Willelmus de Hesylryg venit ad ipsum et rogavit eum quod videret dictam Julianam,
filiam tenentis sui, justitiam habere. Et dicit quod ipsam juvabat et ipsam fovebat in
causa' ('And the witness says that a certain William de Hesylryg came to him and
requested that he should see to it that said Juliana, the daughter of his tenant, would
have justice. And he says that he helped her and aided her in the case').
CP E 79 and 245.
C P E 18, 89, 175, 179, 188.
CP E 46, 69, 76, 87, 257, 259.
CP E 12 (non-payment of dowry); 108 (validity of parents' marriage); 79 (validity of
vows, multi-party); 179 (forced marriage); 245 (multi-party over the proctor William
Cawod's daughter).
CP E 103. The unfree status of the defendant, John de Byrkys, in CP E 235 emerged
during the interrogation of witnesses over his exceptions to the plaintiff's witnesses; see
above, note 16.
C. Given-Wilson, The English nobility in the late middle ages (London, 1987), 69-72;
J. C. Russel, British medieval population (Albuquerque, 1948), 118 and 132-3.
CP E 6, 97, 102, 103, 111, 114, 135, 150, 191, 102, 211 and 263. 'Ex officio' litigation
is litigation which arose out of an investigation by the court. The parties in such an ex
officio case would be the court itself and a couple or an individual.
Donahue, 'Female plaintiffs', 207.
Average distances from York for the plaintiffs are: Status Group 1: 64.6 miles; Status
Group 2: 21.6 miles; Status Group 3: 17.0 miles; Status Group 4: 25.9 miles. The
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average distance from the first court is: Status Group 1: 35.5 miles; Status Group 2:
20.3 miles; Status Group 3: 15.6 miles; Status Group 4: 7.3 miles.
40 In an attempt to encourage his subjects' use of the courts, Archbishop Greenfield fixed
litigation costs at a uniform level in the statutes of the court of 1311. The statutes'
prologue declares that the statutes were drawn up to achieve two aims: first, to eliminate
the possibility of delays in cases heard in the court, and secondly to limit the expense
of conducting a case for the litigants. The statutes did not demand a payment to the
court for dealing with a case, but it was stated that litigants were expected to pay the
scribes who provided the court with transcripts of the depositions and the advocates
and proctors involved with their case. The two examiners of the court, who conducted
interrogations of witnesses in court or out of court in the witnesses' home parish, were
normally not to be paid more than 12d. per witness examined. But if the litigants had
handed in articles of excessive length, the examiners were allowed to charge 1 d. for
every 12 lines of deposition taken down. The charge for copies of these or other
documents was Id. for every 24 lines. In larger cases, the examiners were to be paid
according to the assessment of the president of the court. The examiners' fee was to be
waived if the litigant for whom they performed the examination was a pauper or a
'miserable person'. The salary of an advocate of the court was not to exceed 50s. per
case per annum, while a proctor could only be paid 10s. per case per annum. If the court
found that they had taken more from their clients, they were liable to pay back the
excess and to suspension from their office during the president's pleasure. There are no
recorded instances of this happening in the fourteenth-century York cause papers (see
David Wilkins, Concilia Magna Britanniae et Hiberniae a Synodo Verolamiensi AD
CCCCXLIV ad Londinensem AD MDC, 4 vols. (London, 1737), vol. 2, 410-12).
41 A sentence of abjuratio sub poena nubendi could be imposed on a couple found guilty
of repeated fornication. The consequence of such a verdict was that if the couple had
sexual intercourse afterwards they were ipso facto married. For a discussion of the legal
aspects of these kinds of cases, see R. H. Helmholz, 'Abjuration sub poena nubendi in
the church courts of medieval England, in his Canon law and the law of England
(London, 1987), 145-55 (first published in The Jurist 32 (1972), pp. 80-90) and the later
discussion of the same subject in Helmholz, Marriage litigation, 172-81 and 208-12.
42 'Et tune idem Thomas interrogavit dictam Margeriam quantum expendiderat in
prosecutione dicte litis. Que dixit quod quinqueginta quinque solidi. Et tune ipse dixit
"de hoc satisfacam te et habe hie xx solidos in partem.'" (CP E 102).
43 Asked by Thomas de Midelton why she had started the case in the first place, Margery
Merton answered ' Quia nolo derideri a te' (' Because I do not want to be laughed at by
you') (CP E 102).
44 Helmholz rightly called 55s. 'a large sum' (Marriage litigation, 161). The amount
represents between 12 and 6 months' wages to an ordinary worker who would have
made around 2-3^d. a day (see J. E. Thorold-Rogers, A history of agriculture and prices
in England, 7 vols. (Oxford, 1866-1902), vol. 1, 321; vol. 4, p. 524). The point is,
however, that the cost of litigation was not prohibitive to these litigants and that a
weaver in Beverley was willing and able to spend that amount on regularising her union
to a chapman.
45 Helmholz, Marriage litigation, 161.
46 For example, in his analysis of the documents produced by the Church courts in
matrimonial cases Richard Helmholz implies that an enforcement of marriage case was
always brought by a woman: 'The libel ended with the demand that the defendant be
adjudged the plaintiff's legitimate husband and be required to treat her with marital
affection' (my italics) (Marriage litigation, 13) and when discussing the repudiation of
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spouses or the abandonment of one spouse by another, which he calls 'self-divorce' he
writes,' Rarely did men claim the right to repudiate their wives without an excuse that
was at least vaguely canonical. Almost always they had a reason for the validity of their
first marriage. But it was the man himself that worked out the divorce' ibid., (my italics).
Helmholz assumed that it was always the man who wished to obtain a divorce and that
it was only men who abandoned their wives. At least one fourteenth-century 'selfdivorce' investigated by the official's court in York was initiated by a woman; see D. M.
Owen, 'White annays and others' in Derek Baker ed., Medieval women, Studies in
Church History, Subsidia 1 (Oxford, 1978), 331-46.
The published handlist of cases (on which I have relied for the identification of marriage
litigation) lists cause papers by the plaintiff or appellant in York (D. M. Smith,
Ecclesiastical cause papers at York: the court at York 1301-1399, Borthwick Texts and
Calendars, 14 (York, 1988), viii). The following cases were initiated by women at the
first-instance court: CP E 1, 6, 25, 28, 33, 36, 37, 40, 69, 70, 71, 77, 79, 82, 84, 92, 95,
102, 103, 105, 106, 108, 111, 113, 114, 116, 121, 126, 135, 137, 140, 150, 157, 158, 159,
161, 175, 178, 181, 191, 198, 202, 210, 211, 213, 215, 216, 221, 223, 235, 236, 239, 241b,
241i, 255, 256, 257, 259 and 263.
CP E 12, 14, 15, 18, 23, 26, 46, 61, 62, 76, 85, 87, 89, 97, 124, 138, 148, 153, 155, 179,
186, 188, 212, 238, 241v, 242, 245, 248 and 274.
CPE 25, 36, 37, 71,77, 79, 87, 95, 103, 106, 113, 124, 126, 138, 148, 153, 155, 158, 159,
161, 175, 186, 188, 210, 215, 236, 242 and 256.
CP E 25, 36, 37, 71, 77, 79, 95, 103, 106, 113, 126, 158, 161, 175, 210, 215, 236 and 256.
CP E 25, 36, 37, 71, 77, 79, 103, 106, 113, 126, 161, 175, 210, 236 and 256.
CP E 113, 126 and 159. In these three cases, it is unclear whether the man had set up
a household with one of the female plaintiffs. For example, in CP E 159 Margery Spuret
and Thomas Hornby first appeared before the dean of the Christianity of York who
dismissed the case when Margery could not produce witnesses for her case. Four
months later she initiated the present case again, this time with witnesses: at this stage
Thomas Hornby was also sought by Beatrice Gylling.
CP E 138, 186, 188 and 242.
CP E 87, 155 and 153.1 distinguish a precontract from a matrimonial and divorce case
by the fact that we have positive proof in the cause papers that the alleged spouse was
not present in court or that we have no attestation that he was cited to appear before
the court.
CP E 124, 148 and 159.
Thefiguresin Figure 5 are based on the gender of the person who brought the core issue
to the attention of the court in York. As will be shown below, in cases classified as
restitution of marital rights and alimony cases the men who brought the cases to the
attention of the York court were reacting to a (now lost) approach to another
ecclesiastical court.
Tove Rasmussen {Jeg tager dig til min agtemand.,. kvinder og kirkeret i 1300-tallets
Yorkshire (unpublished dissertation, University of Copenhagen, 1985), 41-8) comes to
much the same results. However, we differ in the way that we compute the figures. Ms
Rasmussen counted the number of female plaintiffs when the cases were heard in York
and subdivided the cause papers into three groups (enforcement, multi-party and
divorce cases). I have computed the number of female plaintiffs in the court of first
instance in nine categories. (A divorce 'Quoad mensam et thorum' granted the parties
the right to set up separate households but not to remarry.)
For a concise discussion of the legal implications of this kind of case, see Helmholz,
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Marriage litigation, 172-81, which refines the analysis found in the same author's earlier
article 'Abjuration sub poena nubendi', 145-56.
CP E 6, 111, 114, 135, 150, 178, 191, 202 and 211. A tenth case, CP E 37, argues that
the defendant in a multi-party case was compelled to contract a second marriage by an
ecclesiastical judge.
CP E211.
Listed in Figure 5 a s ' divorce'. The outcome of a successful plea in this kind of case was
a marital separation in which the court allowed the spouses to live in separate
households but not to remarry (see note 57).
Although Mr Justice Devlin was trying to define provocation in excusable homicide, his
definition of the result of provocation seems entirely appropriate as a description of the
violence dealt with in York {All England Law Reports, vol. 1 (1949), 932).
CP E 150 and 221.
CP E 15 and 241v.
CP E 14 (1324).
CP E 248 and 274.
CP E 274 (1395). Too little survives in this case to say whether it was brought as a
counter-charge to litigation by the woman. The case was later appealed, but no record
survives of the outcome of the appeal.
CP E 248. This case, which raises a number of issues about the litigants' knowledge and
use of canon law, is analysed in detail in Frederik Pedersen, Romeo and Juliet of
Stonegate: a medieval marriage in crisis, Borthwick Paper (York, 1995).
C P E 1 , 15, 18,23,28,37,40,69,71,82,84,92,102, 103,105,111,113, 114,116, 121,
124, 126, 135, 157, 178, 181, 188, 198, 202, 215, 213, 236, 255, 259, 263.
CP E 6,26, 76, 77, 79, 85,87, 89,95,97,106, 137,138,155,191,211, 221,235,238, 241v.
CP E 1, 6, 25, 26, 71, 82, 114, 137, 178, 215, 223, 241b and 263.
Donahue, 'Female plaintiffs', 201.
In proposing this, I am much influenced by Charles Donahue's explanation for the
changing litigation patterns in surviving fourteenth- and fifteenth-century litigation
(Donahue, 'Female plaintiffs', 204-5). Donahue's explanation receives added support
from the figures for litigants' average distances from the court when divided by status
group (see above).
Only one of the women sought by a man in marriage - Johanna Monceaux, the
defendant in CP E 179 - defended herself with the argument that she was far too
wealthy to have consented to the marriage. Men, on the other hand, often used this
argument to try to discredit a woman's claim.
C P E 179 and C P E 248.
C. 4 q. 3 c. 1-19; D. 22 c. 5; Paul Fournier, Les officialite's au moyen age: etude sur
Vorganisation, la competence et la procedure des tribunaux eccle'siastiques ordinaires en
France, de 1180 a 1328 (Paris, 1880), 185, and Helmholz, Marriage litigation, 155.
The model age-distribution tables below (Figures 6 and 7) are taken from Ansley
J. Coale, Paul Demeny and Barbara Vaughan, Regional model life tables and stable
populations, Studies in Population (New York, 1983). A model age-distribution table is
a mathematically derived distribution of age-groups according to varying demographic
regimes. The variables used in the equations are the population's mortality and fertility.
On the basis of these variables a distribution of members in different age-groups is
calculated. A comparison of the model age-distribution table to the age-distribution in
an observed population may show if the age-distribution of the observed population is
commensurate with a representative sample. The model age-distribution table used for
both sexes in this study is a West Level 4 Stationary population.
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78 The graphs in Figures 6 and 7 show two Y-axes with massively different scales. This is
justified because the analysis is of trends in the age-distribution of the witnesses: the
important aspect of the graphs is how closely their shapes correspond.
79 The list of 71 clerics looks like this: there were 22 chaplains, 17 unspecified clerici, 6
vicarii, 6 notaries public by apostolic authority (5 of them also described themselves as
clerics, but are not counted among that group), 3 clerks, 3 vicars choral, 2 guardians of
hospitals (St Mary's, Bootham; St Giles, Beverley), 2 nuns, 2 monks, 1 canon, 1 abbot
of St Mary's Abbey, York, 1 clerk of the vestibule, 1 former official of the East Riding,
1 janitor, 1 magister, 1 presbyter and 1 registrar of the court.
80 CP E 102 and 248.
81 The complete list of occupations looks like this: 22 servants, 8 literati, 6 saddlemakers,
4 laid, 4 goldsmiths, 2 butchers, 2 ropemakers, 2 barbers, 2 spinners, 2 apothecaries, 2
tailors, 1 potter, 1 grenster, 1 domina, 1 bociler, 1 weaver, 1 fletcher, 1 draper (tapiter),
1 wright, 1 tanner, 1 fur-seller, 1 forester, 1 runner for the archdeacon of Burton, 1
summoner and 1 'citizen of York'.
82 CP E 82 and 92.
83 Their evidence is found in CP E 89, 92, 113, 114, 155, 181, 198 and 235.
84 Quoted in Charles Donahue, Jr, 'Proof by witness in the church courts of medieval
England: an imperfect reception of the learned law', in Morris S. Arnold, Thomas
A. Green, Sally A. Scully and Stephen D. White eds., On the laws and customs of
England (Chapel Hill, North Carolina, 1981), 130-1.
85 J. P. Levy, La Hierarchie des preuves dans le droit savant du moyen age (Paris: 1939), 79.
86 C P E 6 , 14, 15,23,33,61,77,82,89,92, 102, 103, 111, 114, 116, 124, 135, 138, 150, 157,
159, 175, 179, 188, 191, 198, 202, 213, 216, 221, 223, 235, 238, 248 and 263.
87 J. Raine, The register, or rolls, of Walter Gray, Lord Archbishop of York: with
appendices of illustrative documents, Surtees Society, 56 (Durham, 1872), 110.
88 Charles Travis Clay, Early Yorkshire charters based on the manuscripts of the late
William Farrer, Volume 4, Yorkshire Archeological Society Record Series, Extra Series,
2 (n.p., 1935), 76-7, 84-5.
89 Charles Travis Clay, Early Yorkshire charters based on the manuscripts of the late
William Farrer, Volume 6: The Paynell Fee, Yorkshire Archeological Society Record
Series, Extra Series, 4 (n.p., 1939).
90 CP E 108 (1370).
91 The earliest surviving document in this case is Simon Munkton's plea for restitution of
marital rights which he presented before the archbishop's court of audience on 21
August 1345. However, a letter from the commissary general dated 30 October 1345
shows that Simon's wife, Agnes Huntington, had initiated proceedings at the official's
court before Simon made his plea to the archbishop. For this reason the case has been
identified as a case with a female plaintiff.
92 Return, Members of Parliament, Part 1: Parliaments of England, 1213-1702 (London,
1878), 117, 118, 127, 152 and 154.
93 York Minster Library, York Dean and Chapter Wills I, 14.
94 R. B. Pugh ed., The City of York, in The Victoria County History of England: a history
of Yorkshire (London, 1961), 50; Early Yorkshire charters, vol. 1, 194, and Early
Yorkshire charters, vol. 3, 454-7.
95 Cawod's career spanned most offices in the legal system in York: he became a bachelor
of canon law in 1376, he was the dean and chapter auditor causarum, 7 November
1382-1310 December 1389, a licentiate in canon law 1393, he was a vicar general 1397,
and served as the official of archbishop Bowet 1417-1419; cf. Sandra Brown, The
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medieval courts of the York Minster Peculiar, University of York Borthwick Papers, 66
(York, 1984), 35.
CP E 121, 159 and 223.
CP E 150, 235 and 263.
C P E 36 and 121.
CP E 138, 111, 138, 82, 198, respectively.
Chapmen: CP E 92, 102; spicer: CP E 241 v; apothecary: CP E 245; mercer: CP E 216.
CP E 121, 181, 238 and 242. The last case (CP E 242) is a multi-party case between two
servants and a third person.
' ...seisiret ipsa Alicia in duabus bovatis terre' CP E 85 ('He planted for said Alice in
two bovates of land.').
CP E 215.
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