The 'rule of law' in early modern Britain: State power, criminal justice, and civil liberties, c.1500–c.1800

This paper addresses a central dynamic in early modern British history. The years 1500–1800 were characterised by the growth of the state, yet this very process stimulated charges of ‘absolutism’ and ‘tyranny’. The pretensions of the state increased when monarchs advanced bold claims to control new spheres of public and private life, but also when they responded to a sequence of apparently interrelated threats – potential invasion by neighbouring superpowers, plotting by domestic religious extremists, and the teeming multitude of ‘the poor’. In comparison with modern totalitarian regimes, however, the early modern state had few technologies of coercion. Hence it continued to depend on its actions being seen as legitimate. A principal vector of state authority was the legal system. Law justified and transmitted, but hence also regulated, executive action.

The legal systems of early modern Britain favoured the rich and well-connected; verdicts might be perfunctory, sentences harsh; the courts were run by those appointed by, and often beholden to, the current government. Yet they only worked because of the vast, routine participation of ordinary people, acting as jurors, witnesses, and in several other necessary capacities. A mass culture of respect for the values located within an idealised version of these systems thus developed. The ‘rule of law’ provided a dominant mode of interpreting political questions, extending from formal debate in the House of Commons to day-to-day conversation that was increasingly represented in the popular press. Contemporaries wondered whether the steps a regime took to counter threats risked destroying the very principles that the state – and increasingly the British state in particular – existed to uphold. In what circumstances, early modern Britons asked, should a regime derogate from due process; at what point did a protracted state of emergency become the new normal? In an age defined by ‘global terror’ and responses to it, such questions continue to resonate.

This paper addresses these questions through considering such matters as the independence of the jury, the provision of defence counsel, the admissibility of evidence, the use of intelligence and informants, the permissibility of torture, and the ‘theatre’ of execution. Famous trials – lawyers’ test-cases, popular causes célèbres, and literary representations – bring these issues fully to life. Databases such as the Old Bailey Online make broader surveys possible, showing how the policing of society integrated public power with popular agency. The paper thus adopts a wide definition of ‘political’ crimes, encompassing sedition, libel, poaching, and riot; and it incorporates the more routine homicides and felonies that could raise the same issues. The paper shows how political and religious developments – the Break with Rome, the rise of the confessional state, the Civil Wars, the Glorious Revolution, Jacobitism, the Anglo-Scottish Union, the conquest and colonisation of Ireland, and the creation of an empire – altered the terms within which state power was exercised and also critiqued.

The paper therefore ranges broadly, from Henrician heresy trials to Georgian slavery cases, while relating each theme back to the overall subject. The paper draws on several bodies of scholarship: constitutional studies, social histories of crime, analyses of local governance, and intellectual histories. The paper tackles the Marxist-inspired debate about the oppressive character of the eighteenth-century legal system. It also reflects the emerging interest in the imperial dimension to the legal system. The paper adopts an avowedly historicist, rather than an essentialist, approach. Its intention is not to celebrate any particular set of values or to endorse one perspective on complex conundrums. Rather, it illuminates how one society negotiated the trade-offs between (what it understood to be) freedom and security: a thought-provoking subject for advanced study.