Your ten-minute history of the English courts

We can trace the history of English courts back to–well, it depends on who you read: the Anglo-Saxon moot courts, the medieval manor courts, Henry II, Richard I, a few other people with numbers after their names. Take your pick. Toss in a few others if you want to. And by way of truth in advertising, I haven’t timed the article. I have no idea how long it takes to read. But let’s start with the Anglo-Saxons, since they’re first in line.

 

The Anglo-Saxons

Since Anglo-Saxon England started life as a series of smallish kingdoms, it had a scattered mass of laws and customs, meaning that law and its enforcement depended on where you found yourself in its clutches, as well as when. 

Cases that directly involved the king went to the king’s court.  

And cases that didn’t? Well, below the king’s court were, on the basement level, the hundred courts. A hundred was an administrative, military, and judicial category. It was made up of enough land to sustain a hundred families. Above the hundred courts, on the ground floor, were  the shire courts, over which a sheriff presided.

We’ll leave it there, before the picture gets messy, but if you’re in need of serious Anglo-Saxon complications you can find a bit more on the subject in an earlier post.

Irrelevant photo: Li’l Red Cat

 

The Normans

Then the Normans invaded and complicated the picture in a different way, and I desperately hope that I’ve attached the right courts to the right time periods to the right kings.

That’s the problem with history: The pieces move around all the damn time. 

The king’s court continued, hearing important pleas and appeals. Below that, a mass of other courts sprang up, each one handling different issues: In Devon and Cornwall, anything involving mining went to the stannary courts. Anything involving the royal forests went someplace else that wasn’t named in the articles I read and I’m exhausted this week so we’ll pretend we don’t need to know. 

Then there were the manor courts, where tenants were judged by the feudal lords’ stand-ins. Since many of the offenses would’ve been against the lords’ rules and the fines imposed went into the lords’ pockets–

Why, of course a peasant could expect impartial judgement. 

The manor courts also had a more neutral function as places to register land transactions between tenants (the transactions first had to be allowed by the lord), or to surrender or take up holdings under the lord.

Above the manor courts were the honour courts (what the hell, I’ll spell them the English way, with that stray U, since after all they were English). They each covered a complex of estates. 

On top of all that, the church ran its own courts to deal with clerics. 

Clerics, though, even if they couldn’t be judged in a secular court, took on much of the business of secular law. They were an important part of the king’s circle, after all. And they were literate, they knew Latin–the common language of Europe and the language of education and government–and boy could they play politics. At the time, it would’ve seemed natural enough. 

 

Henry II

With Henry, we leave the Normans behind and–if you keep track of these things–are into the Plantagenets. It’s not the 12th century. 

Henry II set up a unified court system that was common to the whole country and that gives us the phrase common law.  It took local custom to the national level, ending local control, and according to a paper posted at OpenLearn, ended arbitrary remedies. 

It also, not so incidentally, centralized power in the king’s hands. In every hundred, twelve “lawful” men–and in every village, four of them–were to declare whether any local man (or presumably, woman) was a murderer or robber. So basically, they had the power to make an accusation, and Henry had a network of prisons built to hold the accused for trial. 

To deal with them,  Henry sent judges traveling on circuits called eyres, and if you heard a piece click into place as the former English majors and other book lovers read that, I heard it too. The judges were to base their judgments on the laws made in Westminster, which is where OpenLearn’s end to arbitrary remedies comes from.

The judges had no local roots, which at least in theory made them less susceptible to corruption. 

All this meant it was now the king’s right to deal with crime and disorder, not the local lords’.

A different set of courts dealt with usurpation–who had a right to what land and whose ancestor had a better claim to it, since damn near everything hinged on who your ancestors were. Disputes were settled, vendettas and violence were avoided, and (ever so incidentally) fees were collected and the treasury was enriched.

It took a while, but eventually the courts’ decisions were written down and published, setting precedents that could be cited in future cases.

The law was becoming professionalized. 

What else did Henry do? He set up a jury of twelve knights to settle land disputes, plus five members of his household–two from the clergy and three from the, um, non-clergy–“to hear all the complaints of the realm and to do right.” They were to be supervised by the king himself, in all his kingliness, and the “wise men” of the realm.

This involved the royal court in disputes between people who weren’t the king. (An awful lot of people, even then, weren’t the king.) In other words, these were cases where the crown wasn’t a party and cared only in the somewhat abstract interest of justice, power, and a peaceful kingdom.

That evolved eventually into the Court of Common Pleas, which was the middle ages’ most active court, for which it won a large plastic trophy. The court continued until the 19th century looked at the overlapping and competing jurisdictions of what was by then three common law courts and replaced them all.

And confiscated the trophy.

Sic transit gloria mundi, which is Latin for Plastic was rare and valuable back then.

One more word about common law: It’s marked by a reliance not just on statute but also on precedent. How anyone ever found their way through the snaking mass of precedents before the age of computers I can’t imagine, but they did. 

 

Richard I

A bit later  in the 12th century, Richard I commissioned a set of knights (it was cheaper to buy the full set than to buy them individually) to preserve the “king’s peace” in “unruly” areas. They were called keepers of the peace and were responsible to the king. By the 14th century, the phrase had evolved into justices of the peace, who are sometimes these days called magistrates.

If Richard contributed anything more than that, I haven’t figured out what it is. 

 

Justice incorruptible

At some point, judges began interpreting the 13th century Statute of Gloucester in a way that funneled cases involving more than 40 shillings to the royal courts. That increased their fees, since they were paid (a bit like cab drivers back in the days when I was one) on the basis of the business they did. 

Cab drivers are also incorruptible.

The site judiciary.uk says the justices in eyre were seen locally as tools of oppression.

An act from 1361 (that’s under Edward III) gave justices of the peace the power to “bind over unruly persons.” It’s still usable today, although these days they’re called magistrates.

Until the 19th century, magistrates were not just judges but local administrators. They set wages, built roads and bridges (not with their own hands, mind you; they were too important to get their hands dirty), and supervised local services. 

Manorial courts declined in the 17th century and were pretty much obsolete in the 18th century. But magistrates, on the other hand, were members of the landed gentry in the 18th century, which is one reason England was so hard on poachers. Poachers were people who hunted illegally on the gentry’s land. So with the end of manor courts the power hadn’t exactly shifted, it had just poured itself into a different form.

The first paid, professional magistrate was appointed in 1813.

 

Magistrates’ courts today

As the judiciary.uk puts it, “It’s doubtful that anyone asked to design a justice system would choose to copy the English and Welsh model. It’s contradictory in places, and rather confusing.”

Did you want an example of English understatement? See above: “rather confusing.” 

Most criminal cases start in a magistrates’ court, and some 95% will end there. Only the most serious ones get bumped up a level, to the crown court, where they get a judge and a jury and a full set of wigs. Magistrates’ courts function without any of those. 

They also function (for the most part) without a paid judge. Magistrates are “mostly unpaid, largely untrained volunteers,” according to Stig Abell in How Britain Really Works

Who’s trained and who’s untrained depends on how you want to define training. Magistrates do get some training before they’re thrown onto the bench, but they’re not lawyers and they are part timers. When they need advice on law and procedure they have to rely on clerks, who are their legal advisors. 

A small majority of the magistrates–56%–are women. You can read that as a victory for feminism if you like, but I’m inclined to think it’s a reminder that the job’s mostly unpaid.

 

Capital punishment

But let’s digress. I always do. It allows us to tackle the important questions, which are always off to one side. Do we capitalize magistrates’ court and crown court? The judiciary.uk website goes with Magistrates’ court, and so do some other sites. That’s moderately insane but looks worse when you zip around the website a bit and see that the more important court gets two capital letters instead of one: Crown Court. A couple of dictionaries go with magistrates’ court.

So what’s a frazzled blogger to do? Since the British have a habit of Capitalizing anything they think is Important, especially Nouns, I’ve sent the whole self-important lot of them packing and gone with lower-case letters. 

42 thoughts on “Your ten-minute history of the English courts

  1. You know that some people will google ‘Sic transit …’, be sent here and believe your definition. It’s sprouts all over again.

    Thank you for the photo of L’il Red. A few days have not made him any less adorable.

    Liked by 3 people

    • Now that’s what I call time well spent. When I edited organizational stuff in the pre-Search and Replace days, the organization I worked for kicked out a series of repeated errors that drove me nuts. Not, as is happens, endless caps, but I got so tired of making the same damn changes. The things they did that I thought screwed up the organization? Those bothered me a lot less than those endless double spaces after a period.

      Liked by 1 person

  2. Your kitten is adorable – Fast Eddie sounds like a good sport.
    I’m thinking adorable and good sports are in high demand these days. I know I am happy to have a dose of either one.
    As for the courts, well I am lost – but in an informed way. Thanks!

    Liked by 1 person

    • Lost but in an informed way. That does kind of sum it up. Through this whole series on courts, law, and history, I’ve found myself wanting a flow-chart kind of clarity: If this happens, then it goes here. If it doesn’t, it goes there. I’ve had to accept that I can’t create it. Someone with a deeper knowledge might, but I’ll just have to settle for snippets that don’t fully fit together.

      Of course, someone with a deeper knowledge might know that flow-chart clarity isn’t available. That’s also possible.

      Liked by 1 person

    • Good question, and I asked the same thing. The answer was something along the lines of, “You walk like the sun’s always shining on you and you own the world.” The ironic thing is that it was a godawful day. I can’t remember if I mentioned this in the interview, but I’d just heard about a suicide in the extended family and was feeling about like you’d think I felt.

      Like

  3. And it’s all different in Scotland (though not a lot, but the Scottish lords and gentry wanted to know they could keep the things they valued, as the price of unifying with England). As in England, there’s a local court with local worthies acting as citizen judges; in both the clerk of the court is a professional, there to keep inexperienced amateurs up to the mark. I once knew a Scottish criminologist who told me that, decades before, in his early days observing courts, one local bigwig in Glasgow or some such was taking his first session on the bench, and some minor – but serial – driving offernder appeared, and pleaded guilty. “What do I give him?” whispered the bigwig to the clerk: “The maximum!” hissed the clerk. And the bigwig put on his solemnest face and said “I hereby sentence you to be taken to a place of lawful execution,.,,,,,,”

    Liked by 1 person

    • Surely that story’s too good to be true.

      I apologize for not even trying to cover the Scottish system, but if I don’t set some limits on this I’ll come completely unglued. The system already has far too many moving parts.

      Like

  4. Pingback: Your ten-minute history of the English courts — Notes from the U.K. | Vermont Folk Troth

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