History of Legal Systems

Throughout the middle ages and into the early modern period, European law was divided into two primary categories: Canon Law, regarding issues ranging from marriage to wills and supervised by religious leaders Secular law, or civil law, administered by the courts of the monarch

Legal scholars draw a distinction between common law (uncodified) and civil law (codified by statutes), but this entry uses civil law more broadly to refer to the entire secular judicial system in early modern England.

Prior to the reign of Henry II (1154–1189), England lacked a centralized mechanism for dispensing justice. Interpretations of laws and legal proceedings varied widely among localities. Henry II created different courts and appointed justices in order to implement a more consistent system of justice. This new system became known as Common Law and was based on the principle that rulings made by the King’s court were made according to the common custom of the realm as opposed to local decisions.

Common Law Courts versus Courts of Equity

Henry II’s consolidation of secular justice gave rise to two parallel court systems: common law courts and courts of equity, both of which dealt with criminal cases and civil disputes.

Common law courts resolved litigation mainly through legal precedent, or the judicial decisions already made in previous cases and maintained over time through court records. These courts dealt with cases involving real property and contracts. Courts were presided over by a judge, and verdicts were reached with juries of twelve men of equal social status as the defendant. Common law courts were often tedious and inflexible, susceptible to corruption, and could award only monetary damages. Rivalries among these courts also developed as they competed for business and influence.

There were three kinds of common law courts: Court of Common Pleas: the lowest court that handled the bulk of disputes among private citizens. Verdicts could be appealed to the Court of the King’s Bench. Court of the King’s Bench: concerned with cases involving the monarch and business not claimed by other courts. Court of the Exchequer Chamber: specialized in crown financial rights and heard cases referred by the Court of the King’s Bench.

The limitations of the common law courts led to instances of injustice and gave rise to the second court system, the courts of equity. The courts of equity were not bound by legal precedent and instead derived their authority directly from the monarch and Privy Council, which gave them far greater power. While the goal of common law courts was to make the injured party whole, the courts of equity were concerned with providing equitable relief. In addition to awarding monetary damages, these courts could impose injunctions that compelled a party to do or refrain from doing a specified action. Despite their considerable power, these courts were often considered more fair than other courts.

The primary courts of equity included: Court of Chancery: presided over by the Lord Chancellor, this was the most powerful court. Court of the Star Chamber: presided over by Privy Councilors, this court handled issues concerning the king’s peace, such as treason, espionage, disorderly conduct, and other crimes. Court of Requests: concerned with cases involving the poor and servants of the monarch. Court of the Admiralty: dealt with cases abroad or at sea. Ecclesiastical courts: operated under the purview of the church and handled moral offenses.

The Law and Society

The era was highly litigious, and its legal system underwent dramatic changes. Not only did legal institutions and practices transform but also interpretations of law. For example, the Treason Act of 1351 identified an inferior form of treason (betrayal of the monarch) called petty treason, or the slaying of a person to whom one owed obedience, such as a husband or master. This law had specifically distinguished petty treason from the charge of murder, which could be mitigated by various factors, and mandated that petty treason and high treason be prosecuted the same way and carry the same harsh punishment of death. However, starting in the 1630s, the interpretation of petty treason shifted to being considered a category of murder, such as manslaughter, which could be mitigated by extenuating circumstances like provocation.

Literature and Law

The subject of the law also became an interest of writers during this period. Shakespeare, for instance, held a deep interest and technical knowledge of the law, which he represented in some of his works, such as , , and . Scholar Paul Raffield argues that explores the ways in which rivalries among competing courts affect the lives of everyday people. The court scenes that Shakespeare depicts are not set in England, so they do not mirror English legal practices precisely, but they may indicate some public perception of the law as not fully committed to rendering justice.

Key Print Sources Curran, Kevin. . Edinburgh University Press, 2017. Lockwood, Matthew. . , vol. 34, no. 1, 2013, pp. 31–49. Raffield, Paul. . , vol. 8, no. 1, 2014, pp. 53–76.

Key Online Sources Best, Michael. . .. University of Victoria, https://internetshakespeare.uvic.ca/Library/SLT/history/crime%20and%20the%20law/civil.html. Accessed 7 Feb. 2023. Jokinen, Anniina. . , 13 April 2009, https://www.luminarium.org/encyclopedia/commonlaw.htm. Accessed 16 Oct. 2018. . , https://tudortimes.co.uk/politics-economy/english-law-and-the-role-of-the-lord-chancellor-1485-1625. Accessed 17 Oct. 2018.

Image Source Payne, John. 1648. Engraving. . https://en.wikipedia.org/wiki/File:Edward_Coke,_The_Fourth_Part_of_the_Institutes_of_the_Laws_of_England_(2nd_ed,_1648,_frontispiece_and_title_page)_-_20131124.jpg.