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.
[...] 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. [...]
[...] In some extent, it is clear that the legal system was efficient, especially for a country that did not rely on a police. This relative efficiency can be attributed to three main characteristics of the system: the participation of the population that legitimized the system, the procedural rules that gave impression of justice and the role of public punishments to deter the population from misbehaving. First, the participation of the population in prosecutions and in decisions gave the system the legitimacy necessary for an efficient enforcement of law, because it permitted the population to be familiar with the law and to thrust the system. [...]
[...] A third aspect of the legal system that some historians considered as efficient was the existence of public punishments, which deter from misbehaving and permitted the internalisation of obedience by the population. In Early modern England, there was no law-enforcement body and no central police authority, because it was considered contrary to the traditional English conception of liberties. The use of the army was required only in time of real emergency. As a result, the state developed other weapons to avoid transgressions of law, especially public exemplary punishments. [...]
[...] The deification of property in this period led to the execution of many property offenders and was in many cases unjustified. A case in point is the survival of obsolete legislation, such as the death statutes for stealing 5 shillings, because long statutes were not repealed. To finish, we are going to question and relativize the idea that the “bloody system” of publicity of punishment was efficient. As the State preferred authority and threat rather than certain punishment of each infraction, many people were not punished for their offences. [...]
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