University of Virginia Library

III. Legislation and Administration

The country-gentlemen formed the bulk of the lawmaking body, and the laws gave the first point of assault of the Utilitarian movement. One explanation is suggested by a phrase attributed to Sir Josiah Child.[7] The laws, he said, were a heap of nonsense, compiled by a few ignorant country-gentlemen, who hardly knew how to make good laws for the government of their own families, much less for the regulation of companies and foreign commerce. He meant that the parliamentary legislation of the century was the work of amateurs, not of specialists; of an assembly of men more interested in immediate questions of policy or personal intrigue than in general principles, and not of such a centralised body as would set a value upon symmetry and scientific precision. The country-gentleman had strong prejudices and enough common sense to recognise his own ignorance. The product of a traditional order, he clung to traditions, and regarded the old maxims as sacred because no obvious reason could be assigned for them. He was suspicious of abstract theories, and it did not even occur to him that any such process as codification or radical alteration of the laws was conceivable. For the law itself he had the profound veneration which is expressed by Blackstone. It represented the 'wisdom of our ancestors'; the system of first principles, On which the whole order of things reposed, and which must be regarded as an embodiment of right reason. The common law was a tradition, not made by express legislation, but somehow existing apart from any definite embodiment, and revealed to certain learned hierophants. Any changes, required by the growth of new social conditions, had to be made under pretence of applying the old rules supposed to be already in existence. Thus grew up the system of 'judge-made law,' which was to become a special object of the denunciations of Bentham. Child had noticed the incompetence of the country-gentlemen to understand the regulation of commercial affairs. The gap was being filled up, without express legislation, by judicial interpretations of Mansfield and his fellows. This, indeed, marks a characteristic of the whole system. 'Our constitution,' says Professor Dicey,[8] 'is a judge-made constitution, and it bears on its face all the features, good and bad, of judge-made law.' The law of landed property, meanwhile, was of vital and immediate interest to the country-gentleman. But, feeling his own incompetence, he had called in the aid of the expert. The law had been developed in medieval times, and bore in all its details the marks of the long series of struggles between king and nobles and parliaments. One result had been the elaborate series of legal fictions worked out in the conflict between private interests and public policy, by which lawyers had been able to adapt the rules fitted for an ancient state of society to another in which the very fundamental conceptions were altered. A mysterious system had thus grown up, which deterred any but the most resolute students. Of Fearne's essay upon 'Contingent remainders' (published in 1772) it was said that no work 'in any branch of science could afford a more beautiful instance of analysis.' Fearne had shown the acuteness of 'a Newton or a Pascal.' Other critics dispute this proposition; but in any case the law was so perplexing that it could only be fully understood by one who united antiquarian knowledge to the subtlety of a great logician. The 'vast and intricate machine,' as Blackstone calls it, 'of a voluminous family settlement' required for its explanation the dialectical skill of an accomplished schoolman. The poor country-gentleman could not understand the terms on which he held his own estate without calling in an expert equal to such a task. The man who has acquired skill so essential to his employer's interests is not likely to undervalue it or to be over anxious to simplify the labyrinth in which he shone as a competent guide.

The lawyers who played so important a part by their familiarity with the mysteries of commercial law and landed property, naturally enjoyed the respect of their clients, and were rewarded by adoption into the class. The English barrister aspired to success by himself taking part in politics and legislation. The only path to the highest positions really open to a man of ability, not connected by blood with the great families, was the path which led to the woolsack or to the judge's bench. A great merchant might be the father or father-in-law of peers; a successful soldier or sailor might himself become a peer, but generally he began life as a member of the ruling classes, and his promotion was affected by parliamentary influence. But a successful lawyer might fight his way from a humble position to the House of Lords. Thurlow, son of a country-gentleman; Dunning, son of a country attorney; Ellenborough, son of a bishop and defendant of a long line of North-country 'statesmen'; Kenyon, son of a farmer; Eldon, son of a Newcastle coal merchant, represent the average career of a successful barrister. Some of them rose to be men of political importance, and Thurlow and Eldon had the advantage of keeping George III's conscience -- an unruly faculty which had an unfortunately strong influence upon affairs. The leaders of the legal profession, therefore, and those who hoped to be leaders, shared the prejudices, took a part in the struggles, and were rewarded by the honours of the dominant class.

The criminal law became a main topic of reformers. There, as elsewhere, we have a striking example of traditional modes of thought surviving with singular persistence. The rough classification of crimes into felony and misdemeanour, and the strange technical rules about 'benefit of clergy' dating back to the struggles of Henry II and Becket, remained like ultimate categories of thought. When the growth of social conditions led to new temptations or the appearance of a new criminal class, and particular varieties of crime became conspicuous, the only remedy was to declare that some offence should be 'felony without benefit of clergy,' and therefore punishable by death. By unsystematic and spasmodic legislation the criminal law became so savage as to shock every man of common humanity. It was tempered by the growth of technical rules, which gave many chances of escape to the criminal; and by practical revolt against its excesses, which led to the remission of the great majority of capital sentences.[9] The legislators were clumsy, not intentionally cruel; and the laws, though sanguinary in reality, were more sanguinary in theory than in practice. Nothing, On the other hand, is more conspicuous than the spirit of fair play to the criminal, which struck foreign observers.[10] It was deeply rooted in the whole system. The English judge was not an official agent of an inquisitorial system, but an impartial arbitrator between the prisoner and the prosecutor. In political cases especially a marked change was brought about by the revolution of 1688. If our ancestors talked some nOnsense about trial by jury, the system certainly insured that the persons accused of libel or sedition should have a fair trial, and very often something more. Judges of the Jeffreys type had become inconceivable, though impartiality might disappear in cases where the prejudices of juries were actively aroused. Englishmen might fairly boast of their immunity from the arbitrary methods of continental rulers; and their unhesitating confidence in the fairness of the system became so ingrained as to be taken as a matter of course, and scarcely received due credit from later critics of the system.

The country-gentleman, again, was not only the legislator but a most important figure in the judicial and administrative system. As justice of the peace, he was the representative of law and order to his country neighbours. The preface of 1785 to the fifteenth edition of Burn's Justice of the Peace, published originally in 1755, mentions that in the interval between these dates, some three hundred statutes had been passed affecting the duties of justices, while half as many had been repealed or modified. The justice was of course, as a rule, a superficial lawyer, and had to be prompted by his clerk, the two representing on a small scale the general relation between the lawyers and the ruling class. Burn tells the justice for his comfort that the judges will take a lenient view of any errors into which his ignorance may have led him. The discharge of such duties by an independent gentleman was thought to be so desirable and so creditable to him that his want of efficiency must be regarded with consideration. Nor, though the justices have been a favourite butt for satirists, does it appear that the system worked badly. When it became necessary to appoint paid magistrates in London, and the pay, according to the prevalent system, was provided by fees, the new officials became known as 'trading justices,' and their salaries, as Fielding tells us, were some of the 'dirtiest money upon earth.' The justices might perhaps be hard upon a poacher (as, indeed, the game laws became one of the great scandals of the system), or liable to be misled by a shrewd attorney; but they were on the whole regarded as the natural and creditable representatives of legal authority in the country.

The justices, again, discharged functions which would elsewhere belong to an administrative hierarchy. Gneist observes that the power of the justices of the peace represents the centre of gravity of the whole administrative system.[11] Their duties had become so multifarious and perplexed that Burn could only arrange them under alphabetical heads. Gneist works out a systematic account, filling many pages of elaborate detail, and showing how large a part they played in the whole social structure. An intense jealousy of central power was one correlative characteristic. Blackstone remarks in his more liberal humour that the number of new offices held at pleasure had greatly extended the influence of the crown. This refers to the custom-house officers, excise officers, stamp distributors and postmasters. But if the tax-gatherer represented the state, he represented also part of the patronage at the disposal of politicians. A voter was often in search of the place of a 'tidewaiter'; and, as we know, the greatest poet of the day could only be rewarded by making him an exciseman. Any extension of a system which multiplied public offices was regarded with suspicion. Walpole, the strongest minister of the century, had been forced to an ignominious retreat when he proposed to extend the excise. The cry arose that he meant to enslave the country and extend the influence of the crown over all the corporations in England. The country-gentleman had little reason to fear that government would diminish his importance by tampering with his functions. The justices of the peace were called upon to take a great and increasing share in the administration of the poor-law. They were concerned in all manner of financial details; they regulated such police as existed; they looked after the old laws by which the trades were still restricted; and, in theory at least, could fix the rate of wages. Parliament did not override, but only gave the necessary sanction to their activity. If we looked through the journals of the House of Commons during the American War, for example, we should get the impression that the whole business of the legislature was to arrange administrative details. If a waste was to be enclosed, a canal or a high-road to be constructed, there was no public department to be consulted. The gentry of the neighbourhood joined to obtain a private act of parliament which gave the necessary powers to the persons interested. No general enclosure act could be passed, though often suggested. It would imply a central commission, which would only, as was suggested, give rise to jobbery and take power out of the natural hands. Parliament was omnipotent; it could regulate the affairs of the empire or of a parish; alter the most essential laws or act as a court of justice; settle the crown or arrange for a divorce or for the alteration of a private estate. But it objected to delegate authority even to a subordinate body, which might tend to become independent. Thus, if it was the central power and source of all legal authority, it might also be regarded as a kind of federal league, representing the wills of a number of partially independent persons. The gentry could meet there and obtain the sanction of their allies for any measure required in their own little sphere of influence. But they had an instinctive aversion to the formation of any organised body representing the state. The neighbourhood which wanted a road got powers to make it, and would concur in giving powers to others. But if the state were to be intrusted to make roads, ministers would have more places to give, and roads might be made which they did not want. The English roads had long been infamous, but neither was money wasted, as in France, on roads where there was no traffic.[12] Thus we have the combination of an absolute centralisation of legislative power with an utter absence of administrative centralisation. The units meeting in parliament formed a supreme assembly; but they did not sink their own individuality. They only met to distribute the various functions among themselves.

The English parish with its squire, its parson, its lawyer and its labouring population was a miniature of the British Constitution in general. The squire's eldest son could succeed to his position; a second son might become a general or an admiral; a third would take the family living; a fourth, perhaps, seek his fortune at the bar. This implies a conception of other political conditions which curiously illustrate some contemporary conceptions.