How well did the legal system of early modern England work?

Résumé du document

A legal system can be defined as the legislation enacted by the State institutions on the basis of tradition or law. In early modern England, the legal system was complex, relying on with overlapping institutions -local criminal courts, Church courts and royal courts-, on itinerant judges but also on the participation of the population. The participatory aspect, in the interest of the "common peace", has led many historians to define the system as discretionary. But it is not the only characteristic that has led to criticisms: the great number of capital statutes and the public enforcement of punishment can lead to talk of a barbaric system.

Indeed, after a crisis in law enforcement in the 1590s, the Stuart toughened the legal system by enacting legislations introducing more punishments and by intensifying prosecutions and after 1688, we often talk of the system as the "Bloody Code". As a result, it is legitimate to question the choice of such a system that can be considered as complex, discretionary or barbaric, by wondering how well it worked, that is to say by questioning its efficiency in reducing crime but also by considering its impact on society at large.

For long, most historians have argued that the policy of terror was not working and that the system was very discretionary. However, some contemporaries, such as the jurist Blackstone, were real defendant of the efficiency of such a system and it seemed that the population respected and participated actively to the law enforcement.

Extraits

[...] Moreover we can point out the fact that the laws faced challenges in spite of this deterrent, especially in London where there were important disparities in wealth. Clearly, the deterrence was not total. A general increase in crimes in the 17th century, especially of property crimes, leads to question the efficiency of the law and punishment system. However, Douglas Hay reminds us that we should not forget that it was also probably linked to the growing opportunities of theft with the growth of trade, population and wealth and that there is still not proof that there was a growing amount of theft per capita. [...]

[...] How well did the legal system of early modern England work? A legal system can be defined as the legislation enacted by the State institutions on the basis of tradition or law. In early modern England, the legal system was complex, relying on with overlapping institutions -local criminal courts, Church courts and royal courts-, on itinerant judges but also on the participation of the population. The participatory aspect, in the interest of the “common peace”, has led many historians to define the system as discretionary. [...]

[...] As a result, the legal system satisfied the population because it rested on cooperation, participation and co-optation. Sharpe explains that the function of the law went far beyond the courtroom because it regulated individual conduct. Second, the procedural rules and the link between law and morals conveyed the idea of fairness. It gave legitimacy to the system and we can argue that the more a system seems legitimate, the more it is used, and respected and as a result, the more it is efficient. [...]

[...] As a result, the legal system was almost venerated by the population as well as considered as a way of social control by the elite, and had mainly a positive social impact. However, it is clear that the importance of criminality in early modern England, especially between 1580 and 1620 with the increase of all kind of crimes, shows that the legal system was far from perfect and we now need to consider the other side of the historical debate. [...]

[...] Many times, social prejudices affected the decision, especially for strangers and persons from marginal status. Other authors are more lenient about the extent of discretion but agree that the participation aspect made law exploitable by some groups, especially the elite who were more represented in the jury because of property qualifications. As regards the functioning of the trial, the jury heard about a dozen cases one after another and without a pause between them, in the noise and confusion of crowded courts and we could argue that it could influence the decision that was taken in an atmosphere of tensions. [...]