Recent work on execution emphasizes broad similarities in the character and causes of changing practices across the western world, as well as the strength of resistance to reform in England before the 1830s. In fact, five features gave rise to a distinctive path of change in England following the Restoration of 1660. First, the variable scale of enforcement from one place to another contained the potential excesses of England’s “Bloody Code.” They were additionally contained, secondly, by the “early” advent of constitutional monarchy, which made parliament – and new urban elites – partners in making and enforcing the laws. England’s “urbane” peoples derived particular strength, thirdly and fourthly, from the unique extent of urbanization in England and the vigorous public sphere to which it gave rise. Finally, the experience of London, by 1750 the largest European city, compelled changing practices which gave those people ascendancy in public political culture by the 1830s.

This chapter surveys the principal features of the legal system of the later sixteenth century, beginning with the courts and their functions. Trials took place at the assizes in the country, separated from the legal argument in Westminster Hall. The court at Westminster did not hear the evidence but had to take the facts as encapsulated in Latin; the effect of this separation is considered. In absence of appeals as we know them, judges were unwilling to decide difficult cases, though the desire for unanimity was giving way to an acceptance of majority decisions. The cost of litigation was much lower than today, and most litigants in the highest courts were of a social status below the gentry. The chapter ends with an account of the legal profession in this period, which saw the rise of the solicitor. The inns of court played a central role as a residential legal university, attended by a substantial proportion of the English gentry.

This chapter continues with the differences between then and now and explores the difficulties of an evaluative comparison. The question is approached in terms of the rule of law, as now understood. In terms of accessibility, efficiency and fairness, in the sphere of civil justice the scales seem to be evenly balanced between the two periods. The criminal law, on the other hand, is now more protective of the accused and less severe; the removal of the death penalty, however, has led to the removal of some of the older safeguards. A meaningful comparison of the substantive content of the law in both periods is hindered by the intervening social changes and by changing attitudes to property and personal autonomy. The transformation of family law is a case in point. Nevertheless, the ultimate conclusion is that the law under two Elizabeths is in essence the same organism, facing similar challenges, and tackling them in recognisably similar ways. Much of what we regard as achievements of modern enlightenment should in fact be credited to the lawyers of the sixteenth century and the common-law heritage.