Released with Early Modern England Encyclopedia 1.0a
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Early Modern England Encyclopedia
By Kristi Nemelka, inspired by
Encoded in TEI P5 according to the LEMDO Customization and Encoding Guidelines
This document uses Canadian English spelling
In early modern England, three legal systems operated simultaneously. The first type of court was the ecclesiastical courts, or church courts, which dealt with moral offenses such as adultery, bigamy, prostitution, drunkenness, and failure to attend church. The archdeacon’s court, which met once every three weeks in regional towns, depended on individuals to report the illicit activities of their neighbors. This kind of community policing meant the government depended on nosy neighbors.
People accused of these sorts of moral offenses could be acquitted if they could collect the testimony of respected local citizens that served as character references. The ecclesiastical courts punished convicted offenders with public shaming rituals such as the pillory (a post to which an offended would be chained or bound) or having to stand in the marketplace or in the church door clad as a penitent, wearing only a white sheet.
The second type of court concerned offenses of secular or civil law, with violent crimes such as theft, assault, rape, and murder tried here. These courts handed out physical punishments for these violent crimes, including whipping, branding, and hanging for the most serious offenders. Civil courts also dealt with financial crimes such as fraud or broken contracts, and they were concerned with handing out monetary damages to the injured party.
The final type of court was concerned only with the monarch, both with financial obligations and issues of treason.
Most sexual offences such as adultery and fornication in early modern England were handled by the ecclesiastical courts. The major exception was the crime of sodomy (also called buggery), the punishment for which was made more severe immediately after the dissolution of the monasteries in the 1530s, mainly as a means of discrediting the displaced monks. Courts considered sodomy a kind of criminal heresy, an offence against the divine and civil order like bestiality. It was considered largely unspeakable. Conviction was punishable by death, all property of the convicted person to be confiscated.
However, the crime of sodomy was very seldom prosecuted. The laws against it were designed more to discredit the celibate male priesthood of the dissolved Catholic Church in England than as a serious method of enforcing the moral norm of heterosexuality. Lesbianism was neither written about nor legislated against.
Puritans suspected the theater of being a site that might encourage Mark the flocking and running to Theatres and Curtains
Courtship and marriage fell primarily under ecclesiastical law in early modern England. Shakespeare’s
She knows the heat of a luxurious bed. Her blush is guiltiness, not modesty(4.1.40–41). All this takes place because of an evil scheme by the bastard Don John to ruin Hero’s reputation. Borachio, Don John’s henchman, confesses,
I have deceived you even your very eyes. Don John your brother incensed me to slander the Lady Hero, how you were brought into the orchard and saw me court Margaret in Hero’s garments, how you disgraced her when you should marry her(5.1.245–249).
In recompense for his offenses against Hero, whom he believes has died after being accused by him, Claudio engages in public penitence, although not one designated by church courts. He elaborately mourns Hero’s supposed death and even agrees to marry her cousin. He engages in forms of public display and restorative justice that would have been familiar to early modern audiences.