The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to the First Edition
• Preface to the Second Edition
• Introduction to the Second Edition
• Aim of Introduction
• (a): Legislative Opinion At the End of the Nineteenth Century
• (b): Course of Legislation From Beginning of Twentieth Century
• (c): the Main Current of Legislative Opinion From the Beginning of the Twentieth Century
• (d): Counter-currents and Cross-currents of Legislative Opinion From the Beginning of the Twentieth Century 2
• Conclusions
• Lectures On the Relation Between Law and Public Opinion In England
• Lecture I: The Relation Between Law and Public Opinion
• Lecture II: Characteristics of Law-making Opinion In England
• Lecture III: Democracy and Legislation
• Lecture IV: The Three Main Currents of Public Opinion
• Lecture V: The Period of Old Toryism Or Legislative Quiescence (1800-1830)
• Lecture VI: The Period of Benthamism Or Individualism 1
• Lecture VII: The Growth of Collectivism
• Lecture VIII: The Period of Collectivism
• Lecture IX: The Debt of Collectivism to Benthamism
• Lecture X: Counter-currents and Cross-currents of Legislative Opinion
• Lecture XI: Judicial Legislation
• Lecture XII: Relation Between Legislative Opinion and General Public Opinion
• Appendix
• Note I: The Right of Association
• Note II: The Ecclesiastical Commission
• Note III: University Tests
• Note IV: Judge-made Law
• A Selection of Works On Politics

LECTURE V

THE PERIOD OF OLD TORYISM OR LEGISLATIVE QUIESCENCE (1800-1830)

Lecture V.Four points merit special attention:—the state of opinion during the era of legislative quiescence—the resulting absence of legal changes during the first quarter of the nineteenth century—the inquiry, why some considerable innovations took place even during this period—and the causes which brought the era of legislative quiescence to its close.

(A)

State of Opinion (1760-1830)

These seventy years constitute a period of legislative quiescence; the changelessness of the law is directly traceable to the condition of opinion.1

The thirty years from 1760 to 1790 may be well termed as regards their spirit, the age of Blackstone.2 English society was divided by violent though superficial political conflicts, but the tone of the whole time, in spite of the blow dealt to English prestige by the successful revolt of the Thirteen Colonies, was after all a feeling of contentment with, and patriotic pride in, the greatness of England and the political and social results of the Revolution Settlement. Of this sentiment Blackstone was the typical representative; every page of his Commentaries is pervaded by aggressive optimism.

“Of a constitution, so wisely contrived, so strongly raised, and so highly finished, it is hard to speak with that praise, which is justly and severely its due:—the thorough and attentive contemplation of it will furnish its best panegyric. It hath been the endeavour of these commentaries, however the execution may have succeeded, to examine its solid foundations, to mark out its extensive plan, to explain the use and distribution of its parts, and from the harmonious concurrence of those several parts, to demonstrate the elegant proportion of the whole. We have taken occasion to admire at every turn the noble monuments of ancient simplicity, and the more curious refinements of modern art. Nor have its faults been concealed from view; for faults it has, lest we should be tempted to think it of more than human structure; defects, chiefly arising from the decays of time, or the rage of unskilful improvements in later ages. To sustain, to repair, to beautify this noble pile, is a charge intrusted principally to the nobility, and such gentlemen of the kingdom as are delegated by their country to parliament. The protection of The Liberty of Britain is a duty which they owe to themselves, who enjoy it; to their ancestors, who transmitted it down; and to their posterity, who will claim at their hands this, the best birthright, and the noblest inheritance of mankind.”1

These words sum up the whole spirit of the Commentaries; they express the sentiment not of an individual, but of an era. Some twenty-five years or so later Burke noted, with undisguised sympathy, the conservatism of English thinkers.

“Many of our men of speculation,” he writes, “instead of exploding general prejudices, employ their sagacity to discover the latent wisdom which prevails in them. If they find what they seek, and they seldom fail, they think it more wise to continue the prejudice, with the reason involved, than to cast away the coat of prejudice, and to leave nothing but the naked reason; because prejudice, with its reason, has a motive to give action to that reason, and an affection which will give it permanence.”2

Blackstone, it may be thought, though not a Tory, was an Old Whig of a pre-eminently conservative character. Burke had always in constitutional matters leaned strongly towards historical conservatism; in 1790, when the words just cited were published, hatred of Jacobinism had transformed him into a reactionist. But Paley was a man of a calm and judicial temperament. He felt no reverence for the historic dignity and pomp of English constitutionalism. Of the anomalies presented by the institutions which lie at the basis of civilised society he could write with extraordinary freedom. The famous illustration of the pigeons,1 to be found in the chapter “Of Property” in his Moral Philosophy got for him the nickname of “Pigeon-Paley,” and the warning of his friend, Law, justified by the event, that it would exclude him from a bishopric, only elicited the retort, “Bishop or no Bishop, it shall go in.” But this hard-headed and honest moralist who sacrificed his chance of promotion rather than suppress a sarcasm aimed at the evils of our own social system, and at monarchy itself, was at bottom as much a defender of the existing state of things as was Blackstone. A few sentences from Paley’s excellent chapter on the British Constitution reveal his whole position.2

“Let us, before we seek to obtain anything more, consider duly what we already have. We have a House of Commons composed of 548 members, in which number are found the most considerable landholders and merchants of the kingdom; the heads of the army, the navy, and the law; the occupiers of great offices in the State; together with many private individuals, eminent by their knowledge, eloquence, or activity. Now, if the country be not safe in such hands, in whose may it confide its interests? If such a number of such men be liable to the influence of corrupt motives, what assembly of men will be secure from the same danger? Does any new scheme of representation promise to collect together more wisdom, or to produce firmer integrity? In this view of the subject, and attending not to ideas of order and proportion (of which many minds are much enamoured), but to effects alone, we may discover just excuses for those parts of the present representation, which appear to a hasty observer most exceptional and absurd.”1

And Paley’s view of the unreformed House of Commons is in substance his view of the whole British constitution,2 and was shared by most statesmen of his day.

Blackstone, Burke, and Paley were, it may be thought, political philosophers who represent the speculative views of their time. Turn then to a writer the charm of whose style does not conceal the superficiality of his ideas, and whose whole aim as a man of letters was to express in graceful English the ideas current among ladies and gentlemen of average intelligence. Goldsmith, in his Citizen of the World, has precisely reproduced the tone of his day. The cosmopolitan Chinaman talks much of English law;3 he maintains, among other fanciful notions, the paradox that it was the height of wisdom to fill the statute-book with laws threatening offenders with most severe penalties which were rarely or never exacted.

“In England, from a variety of happy accidents, their constitution is just strong enough, or if you will, monarchical enough, to permit a relaxation of the severity of laws, and yet those laws still to remain sufficiently strong to govern the people. This is the most perfect state of civil liberty, of which we can form any idea; here we see a greater number of laws than in any other country, while the people at the same time obey only such as are immediately conducive to the interests of society; several are unnoticed, many unknown; some kept to be revived and enforced upon proper occasions, others left to grow obsolete, even without the necessity of abrogation.

“There is scarcely an Englishman who does not almost every day of his life offend with impunity against some express law, and for which in a certain conjuncture of circumstances he would not receive punishment. Gaming-houses, preaching at prohibited places, assembled crowds, nocturnal amusements, public shows, and an hundred other instances are forbid and frequented. These prohibitions are useful; though it be prudent in their magistrates, and happy for their people, that they are not enforced, and none but the venal or mercenary attempt to enforce them.

“The law in this case, like an indulgent parent, still keeps the rod, though the child is seldom corrected. Were those pardoned offences to rise into enormity, were they likely to obstruct the happiness of society, or endanger the State, it is then that justice would resume her terrors, and punish those faults she had so often overlooked with indulgence. It is to this ductility of the laws that an Englishman owes the freedom he enjoys superior to others in a more popular government; every step therefore the constitution takes towards a democratic form, every diminution of the legal authority is, in fact, a diminution of the subject’s freedom; but every attempt to render the government more popular not only impairs natural liberty, but even will at last dissolve the political constitution.”1

The feebleness of our Chinaman’s, or rather of Goldsmith’s, reasoning adds to its significance. When pleas in support of an obvious abuse, which are not plausible enough to be called fallacies, pass current for solid argument, they derive their force from the sympathy of the audience to which they are addressed.

The optimism, indeed, of the Blackstonian age is recognised by moralists of a later generation, among whom it excites nothing but condemnation.

“Then followed,” writes Dr. Arnold, “one of those awful periods in the history of a nation which may be emphatically called its times of trial. I mean those tranquil intervals between one great revolution and another, in which an opportunity is offered for profiting by the lessons of past experience, and to direct the course of the future for good. From our present2 dizzy state, it is startling to look back on the deep calm of the first seventy years of the eighteenth century. All the evils of society were yet manageable; while complete political freedom, and a vigorous state of mental activity, seemed to promise that the growth of good would more than keep pace with them, and that thus they might be kept down for ever. But tranquillity, as usual, bred carelessness; events were left to take their own way uncontrolled; the weeds grew fast, while none thought of sowing the good seed.”1

These are the words of a censor who points a lesson intended for his own generation by condemnation of a past age with the virtues and defects whereof he has no sympathy; but to a critic who wishes to understand rather than to pass judgment upon a bygone time, it is easy to discover an explanation or justification of the optimism represented by Blackstone.

The proper task of the eighteenth century was the work of pacification. The problem forced by the circumstances of the time upon thinkers and upon statesmen was, how best to terminate feuds originally generated by religious differences, and to open, if possible, a path for peaceful progress. This problem had in England received an earlier and a more complete solution than in any other European State. The Revolution Settlement had given the death-blow to arbitrary power, and had permanently secured individual freedom. The Toleration Act might appear contemptible to teachers who, like Arnold, wished to realise an ideal—we may now surely say an unattainable and mistaken ideal—of the identification of State and Church, but to men of sense who test the character of a law by its ultimate tendency and result, the celebrated statute will appear to be one of the most beneficial laws ever passed by any legislature. For the Toleration Act gave from the moment it was enacted substantial religious freedom to the vast majority of the English people; in reality, though not in theory, it made active persecution an impossibility. It formed the foundation on which was built up such absolute freedom of opinion and discussion as has never hitherto existed, for any length of time, in any other country than England, or at any rate in any other country the institutions whereof have not been influenced by the principles latent, though not expressed, in the Toleration Act.

The Revolution Settlement, moreover, while establishing theological peace, laid the basis of national greatness. It made possible the union with Scotland. And the union doubled the power of Great Britain. When, in 1765, Blackstone published the first volume of his Commentaries, there were men still living who remembered the victories of Marlborough, and no one had forgotten the glories of the last war with France.

“It is well known that the administration of the first William Pitt was a period of unanimity unparalleled in our annals: popular and antipopular parties had gone to sleep together, the great minister wielded the energies of the whole united nation; France and Spain were trampled in the dust, Protestant Germany saved, all North America was the dominion of the British Crown, the vast foundations were laid of our empire in India. Of almost instantaneous growth, the birth of two or three years of astonishing successes, the plant of our power spread its broad and flourishing leaves east and west, and half the globe rested beneath its shade.”1

The Blackstonian era moreover was, in comparison with the past, an age of philanthropy. The laws were antiquated, the statute-book was defaced by enactments condemned by the humane feeling of later times. But humanity had greatly developed during the eighteenth century; the subjects of George III. had tenderer hearts than the subjects of Cromwell. Goldsmith’s childish paradox2 has no value as argument but much as history; it reminds us that the severity of the law was tempered by compassion. The rules of the common law3 and the statute-book contained survivals which were at variance with the actual humanity of the age; the law was often so savage as to shock every man of common kindliness. But the law was tempered by technical though absurd rules which gave a criminal undue chances of escape from conviction by the practical revolt of jurymen against the immorality of penalties out of all proportion to moral guilt, and by the constant commutation of capital for some lighter punishment. Legislators were stupid, but they were not intentionally cruel, and the law itself was more severe in theory than in practice.1

Penal laws against the Roman Catholics were, at any rate till 1778, outrageously oppressive. The Relief Act, 1778, 18 Geo. III. c. 60, however, taken together with the Relief Act, 1791, 31 Geo. III. c. 32, deprived the laws against Papists of their most oppressive features, and after 1778, or indeed before that date, a Roman Catholic gentleman in practice suffered, we may conjecture, no great grievance other than the exclusion (in itself a bitter wrong) from public life,2 and long before the passing of the Relief Acts the position of a Roman Catholic in England was enviable when compared with the lot of Protestants in France, till near the outbreak of the French Revolution. Here we touch upon the circumstances which in the eighteenth century gave a peculiar zest to an Englishman’s enjoyment of his liberties. He gloried in them because they were, in his eyes, the special privileges of Englishmen. Liberty is never so highly prized as when it is contrasted with the bondage of our neighbours; English freedom has received the warmest adoration not when most complete, but when it has shone by contrast with the intolerance and despotism which were bringing ruin upon France.1

The optimism which may well be called Blackstonianism, was then the natural tone of the age of Blackstone. It led in the sphere of law to contented acquiescence with the existing state of things, but it would be a grave mistake to suppose that the educated men of Blackstone’s generation were, until they were influenced by the course of the French Revolution, bigoted Tories, or in any sense reactionists. Lord Mansfield was in his judicial character an enlightened reformer. Ideas of progress and improvement do not easily associate themselves with the name of Lord Thurlow, yet to Thurlow is ascribed a most ingenious and beneficial device for securing the property rights of married women, and to his energetic interposition is due the recognition in 1801 by the House of Lords, of the right of a wife when suffering from outrageous ill-usage at the hands of her husband to obtain divorce by Act of Parliament.1 The Commentator was an active humanitarian. He would have called himself a Revolution Whig, and was devoted to the Whig doctrines of civil and religious liberty. Nor was there any inconsistency between a conservative turn of mind and that conception of freedom in accordance with law which the Whigs of the age of George the Third had inherited from their predecessors. The Whig Revolution of 1689, and even the Puritan Rebellion of 1642, were from one point of view conservative movements. Their aim was to preserve the law of the land from either innovations or improvements introduced by arbitrary power. Coke was the legal hero of the Puritans, and Coke was the stiffest of formalists. A devotee of the common law, he detested the reforming ideas of Bacon fully as much as the despotic arbitrariness of James. The Revolution of 1689 was conducted under the guidance of Whig lawyers; they unwittingly laid the foundations of a modern constitutional monarchy, but their intention was to reaffirm in the Bill of Rights and in the Act of Settlement, not the innate rights of man but the inherited and immemorial liberties of Englishmen. This is the basis of truth which underlies the paradox exaggerated by the rhetoric of Burke that the statesmen who carried through the Revolution of 1689 were not revolutionists. They assuredly believed that the liberties of Englishmen were bound up with the maintenance of the common law. The conservatism then of the English Revolution found its natural representatives in English lawyers. If they demurred to the introduction of wide reforms, their hesitation was due in part to the sound conviction that fixity of law is the necessary condition for the maintenance of individual rights and of personal liberty.

Under the horror excited by the excesses of the French Revolution, the mild and optimistic conservatism of Blackstone mingled, within twenty years after his death, with that strenuous and almost reactionary toryism of Eldon which not only retarded but for a time prohibited the removal of abuses. But it should be remembered that at the beginning of the nineteenth century the two different sentiments of optimism as regards English institutions, and of hatred of innovation co-existed, and together constituted the public opinion of the age. Blackstonianism, indeed, not only co-existed with, but survived the reactionary toryism which attained its height between, say, 1790 and 1820. To judge, indeed, from the expressions of Benthamite reformers, we may conclude, and probably with truth, that exaggerated satisfaction with English institutions retarded liberal reforms long after the panic excited by Jacobinism had passed away.1 In any case, it was this mixture of Blackstonian content with everything English, and Eldonian dread of any change which panic-stricken prejudice could term foreign or Jacobinical, that coloured the whole public opinion of 1800, and determined the course of legislation during the first twenty-five or thirty years of the nineteenth century.

(B)

Absence of Changes in the Law

The first quarter of the nineteenth century belongs to the era of legislative stagnation, and is till towards its close characterised (with rare exceptions which require special explanation)1 by the absence of essential change in the law of the land.

The constitution was then as now what modern writers call flexible; any part thereof might in theory be altered by an Act of Parliament, but the constitution though theoretically liable to be modified, was, owing to the condition of opinion, all but unchangeable by legislation. The English constitution, looked at from a merely legal point of view, remained in 1827 almost exactly what it had been in 1800. If indeed we leave out of sight the Acts of Union with Scotland and Ireland, we might assert, without much exaggeration, that to a mere lawyer who recognised no change which was not recorded in the statute-book or the law reports, the constitution rested in 1827 on the foundation upon which it had been placed by the Revolution of 1689. In the daily working of parliamentary government, it is true, vast alterations had been made during the lapse of more than a century, but these alterations were the result of political conventions or understandings,2 which left untouched the law of the constitution.

In every sphere of law this absence of change is equally visible;1 no one looked for active legislation. In truth, the functions of the Cabinet have since 1830 undergone a tacit revolution. From the beginning of the eighteenth century till pretty nearly the time of the Reform Bill, the chief duty of the Ministry was not the passing of laws, but the guidance of national policy. Chatham was the leading statesman of his time and country, but we cannot, it is said, attribute to him a single material amendment of the law. His son, when at the height of power, did not feel himself bound to retire from office, though unable to carry legislation which he proposed to the House of Commons. His attitude with regard to parliamentary reform, and his return to office, though prevented from conferring the full rights of citizenship upon Roman Catholics, can be understood only when we remember that the passing of Acts was not in his time a primary function of the Cabinet. All this is now changed. Every speech from the throne on the opening of Parliament has, for some seventy years and more, contained a legislative programme. Amendment of the law is supposed to be the chief duty of a Ministry. A Conservative no less than a Liberal Cabinet is expected to make, or at any rate to promise, improvements or alterations in the law. Lord Halsbury is not counted a very ardent reformer; he has not held the seals for the length of time during which they were retained by Lord Eldon, but he has, we may be sure, carried through, proposed or sanctioned, legal innovations far more numerous and far more fundamental than were suggested or enacted by Lord Eldon during his twenty-seven years of office. Legislative quiescence belongs to the past.

This immutability of the law during the earlier part of the nineteenth century may be regarded from different points of view. We may note the easy tolerance of large public abuses; we may, looking at the matter from a different side, observe the general acquiescence in legal fictions and survivals, which, while they admitted of no logical defence, constituted either the grave defects or, sometimes, the oddities of the law of England. We must, further, while carrying out this survey, remember that none but a few theorists, who did not till, say 1825, command any general confidence, thought it practicable to amend defects which, though they now possess an interest for antiquarians, often caused the gravest inconvenience to the generation which had practical experience of their actual results.

As to Abuses.—In 1820 appeared the notorious Black Book,1 which in its day made some noise and stimulated the demand, which in 1830 became irresistible, for retrenchment and reform. This book purports to prove by facts and figures, that every branch of the State and of the Church was full of abuses, and that in every department of public life the nation’s money, wrung from an overtaxed people, was wasted on pensions, on sinecures, or, to speak plainly, on corruption. There is no need to place implicit confidence in the allegations of a party pamphlet, but we must believe that the Black Book contains a broadly true, if rough and unfair, picture of the system of government as it existed during the first quarter of the nineteenth century. The mass of the people felt the pinch of poverty and were filled with deep discontent, yet heavy taxes were squandered on pensioners and sinecurists. One fact was established past a doubt. In the service neither of the State nor of the Church was reward in any way proportioned to merit. A favoured few connected by relationship or interest with the rich and the powerful, received huge salaries for doing nothing, whilst the men who actually did the work of the nation were in many cases grossly underpaid.1

Legislative stagnation, or rather the prevalent dislike to all innovation of which it was the result, is indeed exemplified by the toleration of such public abuses as are denounced in the Black Book; but a far more striking illustration is presented by the indifference both of legislators and of the public to the maintenance of laws or customs which seriously affected private life, and might work obvious and palpable wrong or injustice. Landowners, for example, made free use of spring-guns and man-traps; they protected their game at the cost of occasionally killing innocent trespassers. Yet the use of these instruments of death or grievous bodily harm (though declared criminal in Scotland) was sanctioned by English Courts, and not prohibited by Parliament till 1827. A prisoner on trial for felony—e.g., for murder or larceny—was denied defence by counsel. This rule was, on the face of it, unjust. The wit of Sydney Smith, one would have fancied, was hardly needed, though it was freely used,1 to expose the cruelty of depriving a prisoner, whose life may be at stake, of help just at the moment when he most needed it. This denial of legal help assuredly led to the conviction of men innocent of any crime. It had not even the merit of consistent application; for the law allowed counsel to any man who was on trial for a misdemeanour or for treason, or who was impeached before the House of Lords. Yet, in 1824, and again in 1826, the House of Commons refused leave to bring in a bill for the remedy of this monstrous abuse. It was not till four years after the passing of the Reform Act that the Felony Act, 1836,2 allowed to every person on trial the right to defence by counsel. The existence of unjust and foolish laws is less remarkable than the grounds on which these laws were defended. Better, it was argued, that honest men, who had never fired a gun, should be exposed to death by spring-guns or man-traps than that a country gentleman should fail in preserving his game. A prisoner, it was suggested, though he might occasionally through inability to employ counsel be convicted of a murder or theft which he had never committed, had no reason to complain, for the very absence of an advocate turned the judge into counsel for the prisoner. This plea was notoriously untrue; but, had it been founded on fact, it would have implied that injustice to a prisoner could be remedied by neglect of duty on the part of a judge.

Consider, again, the nature of one only of the many irrational restrictions placed by the common law upon the admissibility of evidence. The party to an action, or the husband or wife of such party, was not competent to be a witness at the trial.1 Note what this restriction meant. A brought an action against X, e.g., for breach of contract or for an assault. The persons most likely to know—and perhaps the only persons who did know the facts of the case—might well be A, the plaintiff, and X, the defendant; yet neither A nor X was allowed to tell his story to the jury.2 At the present day we wonder not that under such a rule there should have been frequent failures of justice, but that in spite of it the ends of justice should often have been attained. But Parliament did not modify this irrational exclusion of necessary evidence until well after the end of the period of stagnation. The chief steps for its abolition are worth notice. Under the influence of Benthamite teaching it was, in 1846, abolished as regards proceedings in the County Courts;1 five years later it was done away with as regards most actions in the Superior Courts;2 in 1869 it was abolished as regards all civil actions, and also as regards all proceedings instituted in consequence of adultery.3

At the time, further, when the common law courts made oral evidence the basis of their inquiries, but deprived this mode of investigation of half its worth by excluding from the witness-box the parties to the cause, who naturally knew most about the truth, the Court of Chancery allowed a plaintiff to search the conscience of the defendants, and the defendants, by a cross bill, to perform a similar operation upon their antagonist, but only permitted the inquiry to be on paper.1 In other words, whilst the common law courts took the right method for ascertaining the truth, they excluded the evidence of the persons to whom alone the truth was likely to be known, whilst the Court of Chancery admitted the evidence of the persons most likely to know the truth, but would receive it only in the form of written answers, which give little or no security that the witnesses who know the truth should tell it; and this anomaly in the procedure of the courts of equity was not substantially altered until the middle of the nineteenth century,2 and was completely removed only by the Judicature Act, 1875.

As to Legal Fictions and Survivals.—Every branch of the law teemed with fictions and survivals; they constituted the oddities of our legal system, and, whether simply useless or actually noxious, were specially typical of an age which acquiesced in things as they were.

The ordinary civil jurisdiction of the Court of King’s Bench rested upon the absurd fiction that the defendant in an action, e.g. for a debt, had been guilty of a trespass.3 The ordinary civil jurisdiction of the Court of Exchequer rested upon the equally absurd fiction that the plaintiff in an action was a debtor to the king, and, owing to the injury or damage done him by the defendant, was unable to pay his debt to the king.4 If A brought an action for a wrong done him abroad1 by X, as, for instance, for an assault committed at Minorca, his right to sue was justified by the fiction that the assault had taken place “at Minorca, (to wit) at London, in the parish of St. Mary-le-Bow, in the ward of Cheap.” If A brought an action of ejectment2 against X to establish A’s title to land of which X was in possession, the whole proceeding was based on a purely fictitious or imaginary action brought by a plaintiff, John Doe, who had no existence, against a defendant, Richard Roe, who had no existence, for an assault committed upon the said John Doe on the land claimed by A, which assault had never been committed by any one, either on such land or elsewhere. If a tenant in tail wished to bar the entail, he could indeed do so in 1800 as a tenant in tail can do it to-day, but, whereas now the result is achieved by an ordinary deed of conveyance duly enrolled,1 in 1800, and for many years later, it was attained by an action which was a fiction from beginning to end, and an action under which the tenant in tail nominally lost the very estate over which, by barring the entail, he, in fact, obtained complete control.

These long labyrinths of judge-made fictions, which were far more intricate than can be made apparent without giving details unsuitable for the purpose of these lectures, seem to a lawyer of to-day as strange as the most fanciful dreams of Alice in Wonderland. They sometimes, indeed, led by a most roundabout path to the attainment of desirable ends, but, while they were hardly defensible, even by the ardent optimism of Blackstone,2 they were, as experience has now proved, absolutely unnecessary. They were nevertheless tolerated, or rather held unobjectionable, by the public opinion of 1800, just as were other survivals and fictions which were as noxious as they were obviously ridiculous. Under the proceeding, in itself anomalous, of an appeal of murder, the appelle might, through his right to claim trial by battel, sometimes escape conviction, as he certainly did as late as 1818, by reliance not on proof of his innocence, but on the strength of his arm.3 Benefit of clergy, as regulated by law in 1800, though it no doubt mitigated the monstrous severity of punishments for crime, did in certain instances give an unjustifiable privilege or protection to criminals who happened to be clerks in orders.1 Privilege of Peerage was simply a nuisance and an injustice. In 1765 it saved the Lord Byron of the day from the punishment due to manslaughter;2 in 1776 it saved the Duchess of Kingston from punishment for bigamy.3 In 1841 Lord Cardigan, when on trial before the peers in respect of a duel, might, it was thought, if he had been found guilty, have escaped punishment by pleading his privilege.4

The existence of these fictions, survivals, and abuses, during a period of legal stagnation, is hardly more noteworthy than the fact that many of them were not abolished till well after the commencement of the era of Benthamite reform. Benefit of clergy remained in force till 1827.5 Entails were barred by fictitious actions up to 1833.6 Privilege of Peerage was not abolished till 1841.7 John Doe and Richard Roe, with all the fictions which used to give an antiquarian interest to the action of ejectment, haunted our courts till 1852,8 —that is, till well within the memory of lawyers now living. Slow, indeed, even in the days of legislative activity, was the effective movement of opinion in favour of reform.

(C)

Why considerable changes took place during the Period of Quiescence

How did it happen that the period of quiescence is nevertheless marked by several far-reaching changes in the law?

The answer in general terms is this: These innovations are of two different classes and due to two different causes; some of them are reactionary laws, the fruit of and congenial to the panic-stricken toryism which had cast into the background the Blackstonian optimism of an earlier date; others are reforms either necessitated (as was to all appearance the Act of Union with Ireland) by the irresistible requirements of the day, or else demanded by, and a concession to, the humanitarianism which from 1800 onwards exerted an ever increasing influence.

Reactionary Laws.—Of such legislation let us take two examples. The first is the Combination Act of 1800,1 which derives special importance from its intimate connection with the subsequent development of the combination law—a branch of the law which has been affected in a very marked degree by changes in public opinion. The second is the body of laws known as the Six Acts.

The Combination Act, 1800, 40 Geo. III. c. 106,2 which must be read in connection with the law of conspiracy as then interpreted by the judges, aimed in reality at one object, namely, the suppression of all combinations of workmen, whether transitory or permanent, of which the object was to obtain an advance of wages or otherwise fix the terms of employment; it was an Act for the suppression of strikes and of trade unions. The severity of the statute can be realised only by a minute examination, which would be alien to my present purpose, of its different provisions. Two illustrations may suffice. Under the Act it is made an offence (if we put the matter shortly) to assist in maintaining men on strike:1 persons guilty of this or any other offence under the Act are made liable to conviction on summary procedure before justices of the peace.2

One feature of the great Combination Act is sometimes (because of its small practical importance) overlooked. The statute imposes a penalty upon combinations among masters for the reduction of wages or for an increase in the hours or the quantity of work. To an historian of opinion this provision is of importance. It shows that in 1800 Parliament was in theory opposed to every kind of trade combination.

Behind the Combination Act—and this is a matter of primary importance—there stood the law of conspiracy. As to the exact nature of this law, as then understood, it would be rash to express one’s self with dogmatic assurance.1 There are one or two features, however, of the combination law, as it stood in 1800, of which it may be allowable to speak with a certain degree of confidence.

The law of conspiracy had by the end of the eighteenth century received under judicial decisions a very wide extension.2

A conspiracy, it is submitted, included in 1800 a combination for any of the following purposes; that is to say:—

(1) For the purpose of committing a crime.3

(2) For the purpose of violating a private right in which the public has a sufficient interest,4 or, in other words, for the purpose of committing any tort or breach of contract which materially affects the interest of the public.1

(3) For any purpose clearly opposed to received morality or to public policy.2

Since a combination to commit a crime is ipso facto a conspiracy, it follows that a combination for any purpose made or declared criminal by the Combination Act, 1800, e.g. a combination to collect money for the support of men on strike, was in 1800 an undoubted conspiracy.

If we bear these features of the law of conspiracy in mind and recollect that the Combination Act was not intended to render unlawful any bargaining, e.g. as to the rate of wages, between an employer and an individual workman, the combined result of the Combination Act, 1800, and the law of conspiracy, or, in other words, of the combination law as it stood at the beginning of the nineteenth century, may be thus broadly summed up: Any artisan who organised a strike or joined a trade union was a criminal and liable on conviction to imprisonment; the strike was a crime, the trade union was un unlawful association. The whole idea on which the law rested was this:—

“Workmen are to be contented with the current rate of wages, and are on no account to do anything which has a tendency to compel their employers to raise it. Practically, they could go where they pleased individually and make the best bargains they could for themselves, but under no circumstances and by no means, direct or indirect, must they bring the pressure of numbers to bear on their employers or on each other.”1

To a reader of the twentieth century this state of the law seems no less incomprehensible than intolerable, and indeed within twenty-five years after the passing of the Combination Act, appeared utterly indefensible to so rigid an economist as McCulloch, a man whose good sense and genuine humanity have been concealed from a later generation by the heavy and brutal satire of Carlyle. Who, we ask, were the tyrants who deprived working-men of all freedom, and what was the state of opinion which sanctioned this tyranny? The answer is that the men who passed the great Combination Act were not despots, and that the Act precisely corresponded with the predominant beliefs of the time.

The Parliament of 1800 acted under the guidance of Pitt. It contained among its members Fox and Wilberforce; it was certainly not an assembly insensible to feelings of humanity. The ideas of the working classes were, it may be said, not represented. This is roughly true, but artisans were no better represented in the Parliament of 1824 than in the Parliament of 1800, yet the Parliament of 1824 repealed the Combination Act and freed trade combinations from the operation of the law of conspiracy. The mere fact that the Combination Act of 1799 and the Combination Act of 1800, which re-enacted its provisions, passed through Parliament without any discussion of which a report remains, is all but decisive. The law represented in 1800 the predominant opinion of the day.

The public opinion which sanctioned the Combination Act (which was to a great extent a Consolidation Act)1 consisted of two elements.

The first element, though not in the long run the more important, was a dread of combinations, due in the main to the then recent memories of the Reign of Terror. Nor are we justified in asserting that this fear was nothing better than unfounded panic. Englishmen who, though from a distance, had witnessed the despotism of the Jacobin Club, which towards the close of its tyranny sent weekly, in Paris alone, an average of nearly 2002 citizens to the guillotine, may be excused for some jealousy of clubs or unions. The existence, at any rate, of this fear of combinations is certain; it is proved by a body of Acts—37 Geo. III. c. 123 (1797); 39 Geo. III. c. 79 (1799); 57 Geo. III. c. 19 (1817)—which were directed against any treasonable or seditious society, or against any society which might possibly foster treason or sedition. The presence in one at least of these enactments of exceptions in favour of meetings of Quakers, and of meetings assembled for the purposes of a religious or charitable nature only,1 betrays the width of their operation and the fears of their authors. Clubs of all kinds were objects of terror.

The second element of public opinion in 1800 was the tradition of paternal government which had been inherited from an earlier age, and was specially congenial to the toryism of the day. This tradition had two sides. The one was the conviction that it was the duty of labourers to work for reasonable, that is to say, for customary, wages. The other side of the same tradition was the provision by the State (at the cost, be it noted, of the well-to-do classes, and especially of the landowners) of subsistence for workmen who could not find work. The so-called “Speenhamland Act of Parliament,” by which the Justices of Berkshire granted to working-men relief in proportion to the number of their families, or, to use the political slang of to-day, tried to provide for them a “living wage,” is the fruit of the same policy which gave birth to the Combination Act, 1800. The sentiment of the day was indeed curiously tolerant of a crude socialism. Whitbread introduced a bill authorising justices to fix a minimum of wages, and complained of the absence of any law to compel farmers to do their duty. Fox thought that magistrates should protect the poor from the injustice of grasping employers. Pitt introduced a bill for authorising allowances out of the public rates, including the present of a cow. Burke approved a plan for enabling the “poor” to purchase terminable annuities on the security of the rates.1

The Combination Act, then, of 1800 represented the public opinion of 1800.2

The Six Acts of 18193 were certainly the work of Tories who, filled with dread of sedition and rebellion, wished to curtail the right of public discussion, and these enactments which aimed, among other objects, at the prevention and punishment of blasphemous and seditious libels, and at effectually preventing seditious meetings and assemblies out of doors, aroused grave fears among all friends of freedom. But the Six Acts were not, after all, quite so reactionary as they appeared to Liberals who anticipated an attack upon the liberties of Englishmen. Some of these famous Acts,—such, for example, as the Act to prevent delay in the administration of justice in cases of misdemeanour, or the Act, still in force, to prevent the training of persons to the use of arms and to the practice of military evolutions,—were salutary; one at least was never intended to be more than temporary. The attempt—known as the Cato Street conspiracy—of a few democratic desperadoes to assassinate the whole of the Cabinet marks the prevalent discontent of the time, and proves that the Six Acts were not the result of absolutely groundless panic.

The repressive legislation of 1819 may have been unwise, but it was an attempt to meet a serious crisis and was the natural outcome of the public opinion which in 1819 and 1820 determined the action of Parliament. The Six Acts, however, and other enactments of the same class, in so far as they were reactionary, produced little permanent result.

Reforms.—Innovations which were, or were intended to be reforms, such, for example, as the Act of Union with Ireland, or the Health and Morals Act, 1802, are exceptions to the immutability of the law which characterised the period of quiescence, but they are exceptions which, though they need, admit of explanation; these Acts will indeed be found on careful consideration to be striking confirmations of the dependence of legislation upon opinion.

The Union with Ireland Act, 1800, was carried, as regards England at any rate, without any great difficulty; it was the work of a Tory Government; it was opposed, though not very vigorously, by a certain number of Whigs; the Act, moreover, as experience has proved, made a change in the constitution of Parliament not less fundamental and important than the alteration effected by the Reform Act of 1832. How are we to explain the paradox, that a revolutionary alteration of the constitution took place, and took place with ease, at a date when the public opinion of the day was opposed to every kind of innovation? The explanation lies on the surface of history.

The Union with Ireland was sanctioned by English opinion because it was enforced by the immediate and irresistible pressure of events. It was dictated by the logic of facts. Grattan’s constitution had broken down; the Rebellion of 1798, the savagery of loyalists no less than of rebels, the severities of the Irish Parliament, the all but successful attempt at invasion by France, rendered some fundamental change in the government of Ireland a necessity. Any Englishman of common sense must have felt that things could not remain as they were. The choice lay between the amendment of the Irish parliamentary system1 and the abolition of the Irish Parliament by its absorption in the Parliament of the United Kingdom. To English statesmen at any rate such abolition must have appeared both the easier and the safer course. The precedent of the Union with Scotland seemed decisive, and the success of the legislation of 1707 concealed not only the dangers but the extent of the change involved in the legislation of 1800. The anticipation was natural that the introduction into the Parliament at Westminster of members from Ireland would work no greater alteration in its character than had the introduction of members from Scotland. Nor till the passing of the Catholic Relief Act, 1829, was the anticipation falsified. The Union, dissevered as it was from the emancipation of the Roman Catholics, failed to confer anything like the whole of its promised benefit on the United Kingdom, but the curtailment of Pitt’s statesmanlike design soothed the alarms of Englishmen and fell in with English public opinion. If some change then in the government of Ireland was needed, and few were the Englishmen or Irishmen who could doubt the existence of such necessity, the Act of Union must have appeared to its supporters the least revolutionary of all possible changes. It was justified by precedent, and precedent, which always tells much with Englishmen, told for more in 1800 than it does in 1905.1

Many of the reforms belonging to the era of legislative quiescence bear a humanitarian character. Such, for example, are the prohibition of the slave trade (1806),1 the partial abolition of the pillory (1816),2 the abolition of the whipping of women (1820),3 the earliest attempt to forbid cruelty to animals (1822),4 the abolition of State lotteries (1826-1827),5 the prohibition of the use of spring guns (1827).6

All these measures humanised the law of England. They are all distinctly due to the increasing development of humanitarianism,7 by which term is here meant that hatred of pain, either physical or moral, which inspires the desire to abolish all patent forms of suffering or oppression. This passionate humanitarianism, opposed though it was to much popular indifference as regards various forms of cruelty,1 was shared by philanthropists of every school, with many men whose fear of Jacobinical principles made them shun the name of reformers. In the detestation of cruelty, Benthamite free-thinkers, Whig philanthropists, such as Fox, Tory humanitarians, such as Pitt, and Evangelicals who followed Wilberforce, were substantially at one. On this subject, men divided by the widest political and theological differences stood side by side; there was here no difference between Burke and Bentham, or between Wesley and his biographer Southey. Common humanitarianism was a strong bond of union between men who on other matters were stern opponents; William Smith, a leading Unitarian, or, in the language of the time, a Socinian, and the representative, in the words of a satirist, of “all the opinions of all the Dissenters,” was the esteemed friend of the Tories and orthodox Churchmen who made up the Clapham Sect. James Mill, whom the religious world of his generation knew to be a free-thinker, and would, had they been aware of his true opinions, have termed an atheist, was the ally, if not the friend, of Zachary Macaulay, an enthusiastic, not to say fanatical, Evangelical.2 These facts are of infinite importance to all persons engaged in the study of public opinion; they remind us that in an age disgraced by much general brutality, reformers of every school were united in the crusade against cruelty; they remind us further that a period of political reaction might also be a time during which humane feeling is constantly on the increase.1 Between 1800 and 1830 Benthamism laid the foundations of its future supremacy. Though not yet dominant it exerted towards 1830 marked influence in public life; and the era of Benthamism coincided to a great extent with the Evangelical revival. It was the age of Wilberforce (1759-1833), of Clarkson (1760-1846), of Zachary Macaulay (1768-1838), of Simeon (1759-1836), of Henry Martin (1781-1812), of Elizabeth Fry (1780-1845), of Hannah More (1745-1833). These names, to which might be added a score of others, tell their own tale; they show at a glance that at the beginning of the nineteenth century Evangelicalism was among religious Englishmen supreme, and Evangelicalism, no less than Benthamism, meant as a social creed the advocacy of every form of humanity. The crusade against cruelty owes its success in an almost equal degree to philosophic philanthropy and to religious compassion for suffering. Humanitarianism in alliance with religious enthusiasm was assuredly the force which in 1806 abolished the slave trade, as twenty-eight years later it gave freedom to the slaves.2

No better example of philanthropic legislation during the supremacy of Tory statesmanship can be found than the Health and Morals Act, 1802.3

Up to that date there existed no factory1 legislation whatever.2 This earliest Factory Act was carried through Parliament by Sir Robert Peel (the father of the celebrated minister), himself a manufacturer and a Tory. The measure was suggested not by any general principle, but by the needs of the moment. An epidemic had broken out in Manchester, and had caused the death of many apprentices employed in the cotton mills. The plague was attributed to their scanty diet, and to the wretched conditions under which the apprentices, mostly pauper children, sent up to the north of England by the parochial authorities of the south, worked out their time of bondage. The Act of 1802 regulated, to a limited extent, the employment of these apprentices in cotton and woollen factories. It contained a few sanitary and moral rules; as, for example, that the rooms of any factory within the Act should be washed twice a year with quicklime and water; that each apprentice should receive two suits of clothes; that no apprentice should be kept at work more than twelve hours a day; that the apartments of male and female apprentices should be kept distinct; that not more than two should sleep in one bed; that every apprentice should on Sunday for the space of one hour “be instructed and examined in the principles of the Christian religion by a qualified person.”

This law, which deserves special attention on account of its connection with the factory legislation of a later time,1 is in complete correspondence with the ideas of an era when reform of all kinds was checked by dread of innovation, and humanitarianism could best obtain a hearing when allied with the promotion of sound churchmanship. A reader versed in the religious literature of 1800 might well believe that Sir Robert Peel had drafted the Health and Morals Act after consultation with Hannah More. This earliest Factory Act was the work of benevolent Tories; it sprung from the needs of the moment, and owed nothing either to the advance of democracy or to socialism. The means provided for its enforcement (e.g. the inspection of the mills, which come within its scope, by visitors who owed their appointment to justices of the peace) were ridiculously inadequate. The Act was a moral protest against cruelty, but practically produced no effect. These remarks apply more or less to enactments of a similar character which followed the Health and Morals Act, 1802,2 and were passed in 1819,3 in 1825,4 in 1829,5 and, to a great extent, even to the more effective Act of 1831.6

(D)

Close of the Period of Quiescence

From 1815 to 1820, or even to 1825, Toryism was supreme in State and Church, reform was identified with revolution, and legislative reaction, in the judgment of Whigs and Radicals, menaced the hereditary liberties of Englishmen. In 1830 legislative inertia came with apparent suddenness1 to an end. The activity of Parliament, which has lasted, though, with varying force, till the present day, evinced for a short time a feverish energy which alarmed tried reformers. “All gradation and caution,” murmured Sydney Smith, “have been banished since the Reform Bill—rapid high-pressure wisdom is the only agent in public affairs.”2

Whence this sudden outburst of legislative activity?

The answer may be given in one sentence: The English people had at last come to perceive the intolerable incongruity between a rapidly changing social condition and the practical unchangeableness of the law.

This general reply itself needs explanation. We must examine a little further what were the slowly operating causes of a noteworthy revolution in opinion. Our task will be lightened if we bear in mind that men’s beliefs are in the main the result of circumstances3 rather than of arguments, and that a policy, or rather the public opinion from which it derives its authority, is often in the greatest danger of overthrow at the moment of its apparent triumph.4

The conditions which terminated the era of legislative quiescence, or (what is the same thing looked at from another point of view), which promoted the growth of Benthamite liberalism, may be conveniently brought under four heads: First, the rapid change in the social condition of England between 1800 and 1830; secondly, the increasing unsuitability of unchanging institutions for a quickly developing society; thirdly, the lapse of time, which of itself obliterated the memories of the French Revolution; fourthly, the existence of the Benthamite school.

(1) As to the Change in the Social Condition of England.—It is somewhat difficult for a student to realise the indisputable fact that a period of legal stagnation was in other respects a period of great moral and intellectual activity.1 The termination, indeed, of the great war opened a season of popular distress, which, however, slowly passed, as the century went on, into a time of mercantile and manufacturing prosperity. It was an era of social change. Population was constantly on the increase. In 1801 the population of England and Wales was, in round numbers, 8,000,000; in 1811 it was 10,000,000; in 1821 it was 12,000,000; and in 1831 it was 13,000,000. There was no reason to suppose that an increase which came very near to 2,000,000 in every decade would be arrested. Sagacious observers might conjecture that, as has already happened, the inhabitants of England and Wales would be quadrupled2 by the end of the century. This increase belonged in the main to the operative or industrial classes. It was stimulated by inventions in machinery, by the making of canals, by the use of steam, by the opening of coal mines and the like. England was in fact changing from an agricultural into a manufacturing country, and in the north at any rate was becoming a vast industrial city. And this increase in the numbers of the people coincided with a shifting of the centres of population. Till towards the end of the eighteenth century the majority of the English people lived in the south and the west of England; Bristol was, next to London, the most important of our cities. From the beginning of the nineteenth century, manufactures, population, and wealth kept flowing from the south to the north of England; new cities sprung up in Lancashire and the northern counties where there had formerly been nothing but wastes dotted with townlets and villages. Towns such as Birmingham, Manchester, and Liverpool acquired a new importance, and with this change the influence of employers of labour begun to overshadow the authority of squires and merchants. The country, moreover, it is perfectly clear, was full of energetic life. The gigantic and lasting effort by which victory was at last secured in the great war with France proved the strength of the nation. It has been well noted that deficient, or rather non-existent, as was any system of national education, “there is probably no period in English history at which a greater number of poor men have risen to distinction,”1 than at the end of the eighteenth and in the earlier part of the nineteenth century.

“The greatest beyond comparison of self-taught poets was Burns (1759-1796). The political writer who was at the time producing the most marked effect was Thomas Paine (1737-1809), son of a small tradesman. His successor in influence was William Cobbett (1762-1835), son of an agricultural labourer, and one of the pithiest of all English writers. William Gifford (1756-1826), son of a small tradesman in Devonshire, was already known as a satirist and was to lead Conservatives as editor of The Quarterly Review. John Dalton (1766-1842), son of a poor weaver, was one of the most distinguished men of science. Porson (1759-1808), the greatest Greek scholar of his time, was son of a Norfolk parish clerk, though sagacious patrons had sent him to Eton in his fifteenth year. The Oxford professor of Arabic, Joseph White (1746-1814), was son of a poor weaver in the country, and a man of reputation for learning, although now remembered only for a rather disreputable literary squabble. Robert Owen and Joseph Lancaster, both sprung from the ranks, were leaders in social movements.”1

This was in literature the age of Coleridge (1772-1834), of Sir Walter Scott (1771-1832), of Wordsworth (1770-1850), of Charles Lamb (1775-1834), of Hazlitt (1778-1830), of Miss Austen (1775-1817), of Miss Edgeworth (1767-1849), of Byron (1788-1824), of Shelley (1792-1822), of Sydney Smith (1771-1845), of Jeffrey (1773-1850), and of the whole body of Edinburgh Reviewers.1 Add to this, that between 1800 and 1832 a younger body of writers, such as Macaulay (1800-1859), John Mill (1806-1873), Arnold of Rugby (1795-1842), J. H. Newman (1801-1890), Tennyson (1809-1892), who belong in influence to a somewhat later generation, were coming to manhood. Consider, at the same time, the existence of men of science such as Sir Humphrey Davy (1778-1829), or Sir John Herschell (1792-1871), and note the appearance of inventors such as Watt (1736-1819), and Stephenson (1781-1848). Imperfect and irregular as this list is, it affords irresistible evidence that, at a time when from special causes public opinion is opposed to legal or political innovation, a country may be full of vigour and of life.

(2) As to the incongruity between the social condition and the legal institutions of England.—At any date after 1815 thoughtful men must have perceived the existence of a want of harmony between changing social conditions and unchanged laws. Year by year theoretical anomalies were by the mere course of events transformed into practical grievances.

Our system of parliamentary representation had long been full of absurdities. The House of Commons, before the Union with Ireland, consisted of 548 members, of whom 200 were elected by 7000 constituents.2 A majority of this 7000 might therefore decide a question against the opinion of many millions. The political power which a man possessed varied in the most capricious manner; if his estate is situate in one part of the kingdom he might possess a ten-thousandth part of a single representative; if in another a thousandth; if in a particular district he might be one of twenty who chose two representatives; if in a more favoured spot he might possess the right of appointing two members himself; if he lived in one town he might have no representative at all, and might, as was remarked by Paley, take no more part in electing the persons who made the law by which he was governed than if he had been a subject of the Grand Signior; whilst fortytwo members were lavished upon Cornwall, neither Birmingham nor Manchester had any representative whatever; and whilst about one-half of the House of Commons obtained their seats in that assembly by something like popular election, the other half obtained them by purchase, or by the nomination of single proprietors of great estates. Boroughs, or, in other words, seats in the House of Commons, were bought and sold as openly as any article of commerce, and the King was at times himself the great purchaser of boroughs. “This flagrant incongruity in the constitution,” to use the words of Paley, had existed for centuries, and continued to exist up to 1832. The objections to it were patent, and had often been pointed out. They were already felt in the time of the Commonwealth, and were more or less remedied by the constitution of 1654.1 But, though the existence of members of Parliament nominated by borough owners had towards the end of the eighteenth century provoked theoretical censure, it was not apparently felt by the mass of the people to be a pressing grievance. In 1825, and still more in 1830, the incongruities of an unreformed Parliament had become in the eyes of many Englishmen an intolerable abuse. The reason for this change of feeling is easy enough to discover. As long as the power of the State was centred in the south and west of England, a system which denied representatives to Birmingham or Manchester or Sheffield, whilst it showered representatives on petty Cornish boroughs, might be defended on grounds of expediency by ingenious thinkers such as Paley, or by practical statesmen such as Lord Liverpool or Peel; any constitution which gives real representation, in however strange a manner, to the classes which are powerful in the State, achieves one main end of representative government. But when population, wealth, trade, and power shifted towards the north, apologies for the vices of our representative system, even from the mouths of eminent statesmen, began to sound like dishonest pleas suggested by antiquated prejudice, and put forward to preserve the predominance of the Tory party. No doubt Sir Walter Scott, with all his sound judgment, and others who possessed his good sense without his genius, defended institutions struck with decay, on the true plea that under these institutions the English had become the freest and the most wealthy among the nations of the earth; but apology came perilously near to condemnation when it was, in effect, the admission that aged institutions had not been modified in accordance with the growth and development of England. The best defence for the unreformed Parliament—namely, that it represented all that was most powerful in the State—became weaker year by year. The manufacturers and the artisans of the towns had become a power in the land, but they manifestly received no adequate recognition in Parliament.

The defects, moreover, of parliamentary representation were not compensated for by the activity or flourishing condition of local authorities. No part of the administrative system had suffered so complete a collapse as municipal government. On this point the report of the Commission of 1834 is absolutely decisive. The municipal corporations of England were marked by almost every defect which such bodies could exhibit. They did not represent the inhabitants of the towns whose affairs they were supposed to administer. They were inefficient: they were corrupt. Duties which ought to have been discharged by a corporation were, if discharged at all, placed in the hands of separate bodies—e.g. improvement commissioners—created to perform some special service. The following facts are significant. The prosperity of Birmingham was attributed by observers to that rising town being still in theory a village and free from the disadvantage of being a corporation;1 the general distrust of corporate government led the authors of the Municipal Reform Act, 1836, to bestow astonishingly narrow powers even upon the reformed corporations. The counties, with the affairs whereof their inhabitants had for the most part little to do, were in reality governed by the justices of the peace. The rule of the justices had its defects, but it was not marred by corruption, and was better than the government of the towns under the old municipal system.

Consider, again, in the most general way, the position of the Established Church, or rather the way in which, as the first quarter of the nineteenth century was drawing to its close, the Established Church came to be regarded by thousands of Englishmen.

In 1825, when the evangelical movement was at its height, and Simeon was reputed to have more authority than any bishop, the clergy were assuredly a more zealous and more devoted body of men than were their predecessors of 1725, and (though eminently pious clergymen occasionally acquiesced in arrangements as to the holding of pluralities and the like which every one would now condemn as scandals) some real, though ineffectual, efforts had been made towards the reform of patent ecclesiastical abuses. Nobody in short can doubt that the character and moral weight of the clergy had risen with the advance of the nineteenth century. Yet the defects of the Establishment met in 1825 with severer censure than in 1725, or even in 1800. Here, again, we see the effect of the obvious want of harmony between the institutions and the needs of the time. In 1725 a clergyman might possibly minister to the spiritual and moral wants of a large northern parish, which, though extensive in size, contained a scanty and scattered population of yeomen and farmers. But how could a clergyman by anything short of a miracle discharge his duties in the same parish when it was turned into a huge town, crowded with miners or manufacturing hands? In truth, the very face of the country had changed; northern villages were being transformed into cities. Yet, in an altering world, the Church establishment remained much what it had been in 1689.

If the course of trade and the growth of manufactures altered the position without altering the arrangements of the Established Church, it also revolutionised, without in any way improving, the relation of masters and workmen. This fact was visible to observers who detested Jacobinical principles.

“The unhappy dislocation,” writes Sir Walter Scott, “which has taken place betwixt the employer and those in his employment has been attended with very fatal consequences. Much of this is owing to the steam-engine. When the machinery was driven by water, the manufacturer had to seek out some sequestered spot where he could obtain a suitable fall of water, and then his workmen formed the inhabitants of a village around him, and he necessarily bestowed some attention, less or more, on their morals and on their necessities, had knowledge of their persons and characters, and exercised over them a salutary influence as over men depending on and intimately connected with him and his prospects. This is now quite changed; the manufacturers are transferred to great towns, where a man may assemble five hundred workmen one week and dismiss them next, without having any further connection with them than to receive a week’s work for a week’s wages, nor any further solicitude about their future fate than if they were so many old shuttles. A superintendence of the workers considered as moral and rational beings is thus a matter totally unconnected with the employer’s usual thoughts and cares. They have now seen the danger of suffering a great population to be thus entirely separated from the influence of their employers, and given over to the management of their own societies, in which the cleverest and most impudent fellows always get the management of the others, and become bell-wethers in every sort of mischief. Some resolutions have been adopted respecting the employing only such men as have been either uniformly of loyal character or acknowledge their errors and withdraw from all treasonable meetings, associations, and committees.

“The banks and monied men should use their influence, which is omnipotent with the manufacturers, to enforce the observance of these resolutions, so necessary for the general quiet. That such regulations would secure tranquillity is quite certain, for notwithstanding the general influence of example, the workmen in some of the greatest manufactures did not furnish a single recruit to Radicalism.”1

This want of harmony between the needs and the institutions of the time reappears in matters which, though of less importance than the condition of the working-classes, affected the comfort of thousands of Englishmen.

Nothing can be more necessary for the happiness of ordinary citizens than protection against robbery and physical violence. Yet even in London the protection was not adequately supplied. Until 1829 the capital of England did not possess a regular body of police.1 The welfare, again, of a mercantile community is dependent on the existence of a fair and effective law of bankruptcy, yet the state of the bankruptcy law shocked every man versed in business. There was an absolute opposition on this matter between the law of the land and the feelings of the mercantile world. The state of things as late as the beginning of the reign of Victoria (1837) is thus described by Lord Bowen:—

“The great commercial world, alienated and scared by the divergence of the English bankruptcy law from their own habits and notions of right and wrong, avoided the court of bankruptcy as they would the plague. The important insolvencies which have been brought about by pure mercantile misfortune were administered to a large extent under private deeds and voluntary compositions, which, since they might be disturbed by the caprice or malice of a single outstanding creditor, were always liable to be made the instruments of extortion. ‘To the honest insolvent the bankruptcy court was a terror.’ To the evil-doer it afforded means of endlessly delaying his creditors, while the enormous expenses of bankruptcy administrations rendered it the interest of few to resort to the remedy, except with the object of punishing the fraudulent or vexing the unfortunate.”1

From whatever direction then we examine the condition of England between 1800 and 1830, and especially between 1815 and 1830, we can perceive the discord between a changing social condition and unchanging laws.

(3) As to the lapse of time.—Before the outbreak of the French Revolution intelligent Englishmen of all classes were prepared to welcome natural and gradual reforms. Blackstone, though an optimist, was not opposed to reasonable changes; Pitt, Burke, and Fox were all of them in different ways reformers; and the men we have named are representatives of that large class of Englishmen who at most times have been quite willing to abolish abuses or grievances of a practical character. In the ordinary course of things the law of England would have been amended before the end of the eighteenth, or soon after the beginning of the nineteenth century. The obstacle to reasonable reform is to be found in the revolutionary excesses of France. In England the French Revolution worked nothing but evil; it delayed salutary changes for forty years, and rendered reforms, when at last they came, less beneficial than they might have been if gradually carried out as the natural result of the undisturbed development of ideas suggested by English good sense and English love of justice.1 But to the men who began to take part in public life, or to take an interest in national affairs, between 1815 and 1830, the horrors of the Reign of Terror were mere traditions. They knew by experience the narrow-mindedness of the Tories who had governed England since the beginning of the century, and toryism had by a strange fatality grown less reasonable and more reactionary from the very time when Waterloo, and the permanent peace which it established, had deprived the resistance to all innovation and restrictions on individual liberty of such justification as was afforded by a life and death struggle for national independence. In 1819 or 1820 the Six Acts, the so-called Manchester massacre, the sordid scandals of the quarrel between George IV. and his Queen were present realities. The horrors of a Regicide Peace2 were ancient history. Sensible men perceived that the state of England would soon necessitate a choice between revolution and reform.

(4) As to the existence of Benthamism.—The work of Bentham and his school forms the subject of the next lecture; thus much may here be said: reformers who had escaped from the panic caused by revolutionary excesses, and prolonged by Napoleonic aggression, had inherited the distrust of Jacobinical principles. The need of the day was, they felt, thorough-going but temperate reform, thought out by teachers who, without being revolutionists, had studied the faults of English law, and elaborated schemes for its practical amendment. Such teachers were found in Bentham and his disciples; they provided for reformers an acceptable programme. Utilitarian individualism, which for many years under the name of liberalism, determined the trend of English legislation, was nothing but Benthamism modified by the experience, the prudence, or the timidity of practical politicians. The creation of this liberalism was the death-blow to old toryism, and closed the era of legislative stagnation.

[1 ]The distaste for legal changes which prevailed between 1800 and 1830 is distinctly traceable in part at least to the condition of opinion between 1760 and 1800.

[2 ]Birth 1723; publication of Commentaries, 1765-69; death 1780.

[1 ]Blackstone, Commentaries, iv. p. 443 (end of Book iv.).

[2 ]Burke, ii. p. 169. See also Appeal from the New to the Old Whigs, Burke, vi. pp. 263-265; Hallam, Middle Ages, ii. (12th ed.) p. 267; and Goldsmith, Works, iii., Citizen of the World, Letter iv.

[1 ]“If you should see a flock of pigeons in a field of corn; and if (instead of each picking where, and what it liked, taking just as much as it wanted, and no more) you should see ninety-nine of them gathering all they got into a heap; reserving nothing for themselves, but the chaff and refuse; keeping this heap for one, and that the weakest perhaps and worst pigeon of the flock; sitting round, and looking on all the winter, whilst this one was devouring, throwing about and wasting it; and, if a pigeon more hardy or hungry than the rest, touched a grain of the hoard, all the others instantly flying upon it, and tearing it to pieces; if you should see this, you would see nothing more than what is every day practised and established among men.”—Paley, Moral Philosophy, Book iii. chap. i. (12th ed.), pp. 105, 106.

[2 ]See especially Paley, Moral Philosophy, ii. (12th ed. 1799), pp. 217 and following. Paley’s account of the unreformed Parliament is specially valuable because it was published by a man of judicial intellect at a date (1785) when his judgment was unaffected alike by the excitement of the French Revolution and by the vehement controversies which forty-five or forty-seven years later preceded or accompanied the passing of the Reform Act.

[1 ]Paley, Philosophy, ii. pp. 220, 221.

[2 ]See G. Lowes Dickinson, The Development of Parliament, ch. i.

[3 ]This by the way is a curious illustration of the interest felt towards the end of the eighteenth century in legal speculations.

[1 ]Goldsmith, Works, iii., Citizen of the World, pp. 194, 195.

[2 ]1833.

[1 ]Dr. Arnold, Miscellaneous Works (ed. 1845), p. 276. It seems clear that though Arnold refers definitely only to the first seventy years of the eighteenth century, he really has in his mind the tone of the whole of that century—at any rate till near the outbreak of the French Revolution.

[1 ]Arnold, Lectures on Modern History, pp. 262, 263 (2nd ed. 1843). It is intelligible enough that Arnold, who was essentially a moralist and only accidentally an historian, should add, “yet the worm at its root was not wanting.” But never did the convictions of a preacher more completely misrepresent an age which he knew only by reading or tradition. The Blackstonian era was a period of national strength and of most reasonable national satisfaction.

[2 ]See p. 75, ante.

[3 ]If a prisoner accused of felony stood mute, he could not be tried without his own consent. “To extort that consent he was (until 12 Geo. III. c. 20) subjected to the peine forte et dure, by being laid under a heavy mass of iron, and deprived almost entirely of food. Many prisoners deliberately preferred to die under this torture rather than be tried; because, by dying unconvicted, they saved their families from that forfeiture of property which a conviction would have brought about.” Kenny, Outlines of Criminal Law, p. 467. As late as 1772, when Mansfield and Blackstone were on the Bench, pedantry and callousness to suffering still kept alive torture which might end in death, and could not be defended on the ground, inadequate as it is, that torture may lead to the discovery of truth.

[1 ]See on this whole matter, L. Stephen, English Utilitarians, i. pp. 25, 26, who points out that “The number of executions in the early part of this [i.e. the nineteenth century] varied apparently from a fifth to a ninth of the capital sentences passed,” and refers to the Table in Porter’s Progress of the Nation (1851), p. 635. “Not one in twenty of the sentences was carried into execution.” May, Constit. Hist. ii. (1863 ed.) c. xviii. p. 597.

[2 ]Compare Burke, speech at Bristol, previous to the election 1780, Works, iii. (ed. 1808) p. 389, which makes it apparent that, even prior to the Act of 1778, judges and juries threw every difficulty in the way of informers who proceeded against Roman Catholics for penalties. See Lecky, Hist. (1882) iii. p. 587.

[1 ]The free citizens of a state where the majority of the population were slaves have always been fanatical assertors of their own right to freedom.

[1 ]Campbell, Lives of Lord Chancellors, vii. (5th ed.), pp. 154, 155.

[1 ]Note the tone of the Benthamite school with regard to Blackstone. “He truckled,” writes Austin, “to the sinister interests and to the mischievous prejudices of power; and he flattered the overweening conceit of their national or peculiar institutions, which then was devoutly entertained by the body of the English people, though now [1826-32] it is happily vanishing before the advancement of reason.” Austin, Jurisprudence, i. (4th ed.), p. 71.

[1 ]See p. 95, post.

[2 ]See Dicey, Law of Constitution (7th ed.), pp. 22-29.

[1 ]An analysis of the contents of any ordinary volume of the statutes enacted during the reign of George III. will support the truth of this statement. Compare Ilbert, Montesquieu, pp. 37, 38, for an analysis of parliamentary legislation in 1730.

[1 ]It was the work of John Wade; it appeared in 1820-23 and was republished in 1831, 1832, and 1835. See Dictionary of National Biography, vol. lviii. p. 416.

[1 ]On the abuses which flourished during the first thirty years of the nineteenth century, see Sydney Smith’s Works, and Brougham’s Speeches, e.g. vol. ii., Speech on Law Reform, 7th February 1828, p. 319; Speech on Local Courts, 29th April 1830, ibid. p. 489; and note specially the costliness of legal proceedings, ibid. pp. 495-499; Speech on Parliamentary Reform, 7th October 1831, p. 559; which shows the practical abuses resulting from the existence of rotten boroughs. An admirable account of the general condition of things under the unreformed Parliament is given in L. Stephen, English Utilitarians, chaps. i.-iii.

[1 ]See articles on “Spring-Guns,” and on “Man-Traps and Spring-Guns,” Sydney Smith’s Works (ed. 1869), pp. 365, 385.

[2 ]6 & 7 Will. IV. c. 114. Will not a reformer at the end of the twentieth century wonder that the law continued till 1903 to deny counsel to prisoners on their trial whose poverty prevented them from paying the necessary fee, and that the Poor Prisoners’ Defence Act, 1903 (3 Edw. VII. c. 38), s. 1, did not completely remedy this obvious injustice?

[1 ]See Taylor On Evidence (6th ed.), s. 1210.

[2 ]The result might occasionally, at any rate, be that a person who had suffered a grievous wrong was in effect deprived of any civil remedy. X assaults A. No other persons are present. Neither X nor A could give evidence. It might possibly happen that A had no means of proving the assault. Counsel, who lived when this exclusion of evidence was in force, have sometimes attributed a large part of the extraordinary successes achieved by Erskine or Scarlett to the impossibility of bringing the real facts of a case before a jury, and the wide scope thus given to a skilful advocate of suggesting imaginary accounts of transactions which, in the absence of evidence, admitted of more than one interpretation.

[1 ]9 & 10 Vict. c. 95, s. 83.

[2 ]The Evidence Act, 1851 (14 & 15 Vict. c. 99), s. 2. Even then the parties to an action for a breach of promise of marriage still were excluded from giving evidence, and were not made competent witnesses till 1869.

[3 ]The Evidence Further Amendment Act, 1869, 32 & 33 Vict. c. 68. The principle or prejudice that persons interested in the result of a trial, whether civil or criminal, ought on account of their temptation to lie, even when on oath, not only to be heard as witnesses with a certain suspicion, but also to be held incompetent to give evidence, lingered on in the sphere of criminal law till nearly the close of the nineteenth century. Only in 1898 was a person charged with a criminal offence at last allowed to give evidence on his own behalf. (Criminal Evidence Act, 1898, 61 & 62 Vict. c. 36.) The truth, that is to say, of Bentham’s doctrine that, “in the character of objections to competency no objections ought to be allowed,” was not fully admitted till sixty-six years after his death. Before 1898, however, persons charged with crime had, in the case of special offences, been allowed to give evidence under various different enactments.

[1 ]See Bowen, Reign of Queen Victoria, i. p. 290.

[2 ]The Chancery Procedure Act, 1852 (15 & 16 Vict. c. 86), s. 39. See Ashburner, Principles of Equity, pp. 30-32.

[3 ]Blackstone, Comm. iii. p. 43.

[4 ]Ibid. p. 46.

[1 ]Mostyn v. Fabrigas, 1775, Cowp. 161.

[2 ]“The action was commenced (without any writ) by a declaration, every word of which was untrue: it alleged a lease from the claimant to the nominal plaintiff (John Doe): an entry by him under and by virtue of such lease; and his subsequent ouster by the nominal defendant (Richard Roe): at the foot of such declaration was a notice addressed to the tenants in possession, warning them, that, unless they appeared and defended the action within a specified time, they would be turned out of possession. This was the only comprehensible part to a non-professional person: it generally alarmed the tenants sufficiently to send them to their attorney, whereby one main object of the proceeding was attained: but the tenants were not permitted to defend the action, nor to substitute their names as defendants in lieu of that of the casual ejector (Richard Roe), except upon entering into a ‘consent rule,’ whereby they bound themselves to admit the alleged lease, entry, and ouster, and to plead the general issue ‘not guilty,’ and to insist on the title only.”—Cole, Law and Practice in Ejectment (1857), p. 1. For a popular account of the action of ejectment as it still existed in 1840, see Warren’s Ten Thousand a Year.

[1 ]Stephen, Comm. i. (14th ed.), pp. 347, 348.

[2 ]Blackstone, Comm. ii. p. 361.

[3 ]See Blackstone, Comm. iii. pp. 337, 341; ibid. iv. pp. 340-342; Ashford v. Thornton, 1818, 3 B. & Ald. 485; 19 R. R. 349; Campbell, Chief Justices, iv. (3rd ser.), pp. 232, 233. Appeal of murder and trial by battel were abolished in 1819. 59 Geo. III. c. 46.

[1 ]Stephen, Hist. i. p. 463.

[2 ]19 State Trials, 1177.

[3 ]20 State Trials, 379.

[4 ]See Stephen, Hist. i. p. 462.

[5 ]7 & 8 Geo. IV. c. 28.

[6 ]3 & 4 Will. IV. c. 74.

[7 ]4 & 5 Vict. c. 22.

[8 ]Common Law Procedure Act, 1852, 15 & 16 Vict. c. 76.

[1 ]See Lects. VI. and VIII., post.

[2 ]It re-enacts in substance the Combination Act of 1799, 39 Geo. III. c. 81. See generally as to the Combination Act, 1800, Stephen, Hist. iii. 306; Wright, 12.

[1 ]Stephen, Hist. iii. 208.

[2 ]The maintenance of this summary jurisdiction is a feature of subsequent Combination Acts (5 Geo. IV. c. 95, s. 7; 6 Geo. IV. c. 129, s. 6; Conspiracy and Protection of Property Act, 1875, s. 10). Under the last Act, however, the accused has the option of trial on indictment before a jury (see, for the reasons in favour of this summary jurisdiction, Report of Committee on Combination Laws, 1875, pp. 10, 11). The desirability of obtaining a ready method for the punishment of trade offences, which could only be effected by Act of Parliament, should be noted. It invalidates the argument that conduct made an offence under e.g. the Combination Act, 1800, could not be an offence at common law, since if punishable at common law it would not have been made an offence by statute.

[1 ]Sir William Erle, Sir Robert S. Wright, Sir J. F. Stephen, all eminent judges, have each published on this subject books of authority. A study of their writings leaves on my mind the impression that these distinguished authors have each arrived at somewhat different conclusions.

[2 ]Wright’s Law of Criminal Conspiracies—published before, but not republished after he was raised to the bench—contains elaborate arguments to show that this extension was illegitimate, and was not really supported by the authorities on which it is supposed to rest. From a merely historical point of view these arguments have great force, but from a legal point of view their effect is diminished by the reflection that similar arguments if employed by a lawyer of as wide historical information and of as keen logical acumen as Sir R. S. Wright, would shake almost every accepted principle of English law, in so far as it does not depend upon statute. In any case Wright’s arguments are for my present purpose irrelevant; my object is to state, as far as may be, not what the law of conspiracy ought to have been, but what it was in 1800.

[3 ]“It is undisputed law that a combination for the purpose of committing a crime is a crime” (Erle, Trade Unions, 31), and this whether the crime is known to the common law or is created by statute.

[4 ]Erle, 32.

[1 ]It is arguable in spite of Turner’s case, 13 East, 228, that a combination to commit any tort, or for the breach of any contract, with a view to damage any person, is a conspiracy, but it is not necessary for our purpose to state the law as widely as this. See Kenny, Outlines of Criminal Law, 288-290.

[2 ]Erle, 33, 34.

The agreements which at the present day may be held to constitute a conspiracy have been thus summarised:—

(1) Agreements to commit a substantive crime (R. v. Davitt, 11 Cox, 676; R. v. Whitechurch, 24 Q.B.D., 420), e.g. a conspiracy to steal or to incite one to steal.

(2) Agreements to commit any tort that is malicious.

(3) Agreements to commit a breach of contract under circumstances which are peculiarly injurious to the public.

(4) Agreements to do certain other acts which, unlike those hitherto mentioned, are not breaches of law at all, but which nevertheless are outrageously immoral, or else in some way extremely injurious to the public.

See Kenny, 288-290.

The definition attributed to Lord Denman of a conspiracy as a “combination for accomplishing an unlawful end, or a lawful end by unlawful means” (see Wright, 63) is, it is submitted, sound, though too vague to be of much use. Its importance lies in the emphasis it lays on the object or purpose—a very different thing from the motive—of a combination as a test of its criminal character, and in the light which it throws on the wide extension given by the law to the idea of conspiracy.

[1 ]Stephen, Hist. iii. 209.

[1 ]I.e. the Combination Act generalised provisions which had been long enforced under special Acts in respect of workmen engaged in particular kinds of manufacture. See Stephen, Hist. iii. 206.

[2 ]During a period of seven weeks, between June 10 and July 27 (9 Thermidor), 1794, at least 1376 individuals were sent by the Revolutionary Tribunal in Paris to the guillotine. This gives an average for that period of more than 196 victims a week. See Morse Stephens, French Revolution, ii. p. 548.

[1 ]57 Geo. III. c. 19, s. 27; Wright, 23, 24.

[1 ]Fowle, Poor Law (2nd ed.), 66, 67.

[2 ]Oddly enough the Code Napoléon of 1804, which, as regards the right of association, embodies the ideas of French revolutionists or reformers, is at least as strongly opposed to trade combinations, whether among employers or workmen, as the Combination Act, 1800.

[3 ]The Six Acts were:—

(1) An Act to prevent the training of persons to the use of arms and to the practice of military evolutions and exercise (60 Geo. III. & 1 Geo. IV. c. 1).

(2) An Act to authorise justices of the peace to seize arms, etc., to continue in force only till 1822 (c. 2).

(3) An Act to prevent delay in the administration of justice in cases of misdemeanour (c. 4).

(4) An Act for more effectually preventing seditious meetings, etc. [out of doors], to continue in force for only a limited time (c. 6).

(5) An Act for the effectual prevention and punishment of blasphemous and seditious libels (c. 8).

(6) An Act to subject certain publications to duties of stamps upon newspapers, and to restrain abuses arising from the publication of blasphemous and seditious libels (c. 9).

[1 ]This, as I understand Lecky’s History of England during the Eighteenth Century, is the policy which that eminently well informed and pre-eminently just historian thinks ought to have been adopted. One must, however, remark that this policy if honestly carried out would have been marked by two characteristics which it is hardly possible to believe would have been accepted by Englishmen at the beginning of the nineteenth century. The one was the concession of full political rights to the Irish Roman Catholics, to which many zealots for Irish parliamentary independence—such, for instance, as Lord Charlemont—were opposed; the other was the creation of an Irish Executive really dependent upon the support of the Irish Houses of Parliament, and therefore truly, as well as in name, uncontrolled by the English Cabinet.

[1 ]This is not the place in which to discuss the character of George III. His sentiments or prejudices afford, however, an admirable index to the public opinion of England during his reign. His errors were some of them great enough, but his opinion was always, or almost always, the opinion of the average English elector. It is impossible to show that as regards either the war with the colonies, the hatred to the Coalition, the distrust of parliamentary reform, the maintenance of the war with France, or the opposition to Catholic Emancipation, the feelings of George III. were not on the whole the feelings of the English people. In his support of the Act of Union with Ireland and in his refusal to couple it with Catholic Emancipation, George III. represented the opinion of the English electorate.

[1 ]46 Geo. III. c. 119.

[2 ]56 Geo. III. c. 138.

[3 ]1 Geo. IV. c. 57.

[4 ]3 Geo. IV. c. 71.

[5 ]6 Geo. IV. c. 60; 7 & 8 Geo. IV. c. 28.

[6 ]7 & 8 Geo. IV. c. 18.

[7 ]That humanitarianism was a marked characteristic of the first half of the nineteenth century, and especially of the era of Benthamite reform, is certain. Whether this desire to avoid the infliction of pain has not in England diminished in force since the middle of the nineteenth century, admits at least of doubt. Note as example of increased humanitarianism between 1736 and 1818 that while the imaginary Jeanie Deans is sent home in a carriage by her patron, her real prototype, Ellen Walker (1736), was allowed to walk back to Scotland, and brought the pardon only just in time to save her sister’s life. See Scott’s note, Heart of Midlothian, Waverley Novels, xii., Introduction, pp. i-xi.

[1 ]E.g. sports, such as bull-baiting or prize fights, of which the one was defended by Windham, the friend and disciple of Burke and of Johnson, and the other was patronised on principle by a statesman so kindly and so religious as Lord Althorp.

[2 ]Cowper, the friend and disciple of John Newton, inveighed against the Bastille, that “house of bondage,” with its horrid “towers,” its “dungeons,” and “cages of despair,” with an indignation which would have become a disciple of Rousseau.

[1 ]The reign of Nero is contemporaneous with the spread of Christianity.

[2 ]For the intellectual relation between Benthamism and Evangelicalism as different forms of individualism, see Lect. XII., post.

[3 ]42 Geo. III. c. 73.

[1 ]The word “factory” or “manufactory” does not, as far as I have observed, occur in Blackstone’s Commentaries; the book certainly contains no reference to what we now understand by factory legislation.

[2 ]See Hutchins and Harrison, History of Factory Legislation, ch. ii. pp. 16-18.

[1 ]See Lect. VII., post.

[2 ]42 Geo. III. c. 73.

[3 ]39 Geo. III. c. 66.

[4 ]6 Geo. IV. c. 63.

[5 ]10 Geo. IV. c. 51.

[6 ]1 & 2 Will. IV. c. 39. This last Act was of a wider scope and comes within the period of individualism.

[1 ]See pp. 30-32, ante.

[2 ]Sydney Smith, Works (ed. 1879), p. 340 (n.).

[3 ]See pp. 26, 27, ante.

[4 ]See p. 21, ante.

[1 ]The introduction of fast coaches towards the end of the eighteenth and the beginning of the nineteenth century is analogous to the introduction of railways at a later date.

[2 ]Statesman’s Year-Book, 1904, p. 16.

[1 ]Leslie Stephen, English Utilitarians, i. pp. 111, 112.

[1 ]Ibid. p. 112. This list, to which might be added Francis Place and many others, reminds us of the difference between the extension of knowledge and the extension of education. Receptivity of information which is cultivated and rewarded in schools and also in Universities, is a totally different thing from the education, sometimes conferred even by adverse circumstances, which trains a man to seize opportunities either of learning or of advancement. It has been well said that failures in life arise far less often from mere want of knowledge than from want of skill in the seizing of such favourable opportunities.

[1 ]The Edinburgh Review was started in 1802.

[2 ]As to the state of parliamentary representation in 1799, see Paley, Moral Philosophy, ii. (12th ed.) pp. 217, 218.

[1 ]This reform excited no enthusiasm: it did not last even till the Restoration. The Parliament summoned by Richard Cromwell was elected in England by the old constituencies.

[1 ]See Leslie Stephen, English Utilitarians, i. pp. 99, 100.

[1 ]Scott’s Familiar Letters, vol. ii., Letter to Morritt, 19th May 1820.

[1 ]The slowness with which necessary reforms have been carried out in England is curiously illustrated by the history of the police force during the nineteenth century. The creation of the Metropolitan police in 1829 (10 Geo. IV. c. 14) is due to Peel’s administrative genius; it was a stroke of intensely unpopular but very beneficent statesmanship; but even in the metropolis the police force was not put on a satisfactory basis till 1839 (2 & 3 Vict. c. 47). In the boroughs reform went on slowly, and was not anything like complete until 1839. In the counties reform progressed at even a slower pace. The so-called Permissive Act of 1839 (2 & 3 Vict. c. 93) made the organisation of a good county police possible. In 1842 an attempt was made to infuse new life into the decrepit system of parish constables. Fourteen years later the County and Borough Police Act, 1856 (19 & 20 Vict. c. 69), known as the Obligatory Act, for the first time provided every part of England with stipendiary police, and thus completed a police system for the whole country. See Melville, History of Police in England, chaps. xiii.-xv.

[1 ]Bowen, Reign of Queen Victoria, i. p. 315.

[1 ]The delay, however, in reform by Eldon and his school conferred some benefit on the country. It postponed action until in 1832 it took the shape of reform instead of revolution.

[2 ]The very title of Burke’s celebrated Three Letters on the Proposals for Peace with the Regicide Directory of France, 1796, is a curious example of the difference between the feelings of his times and of our own. Would suggestions of peace with France (or for that matter with any other civilised country) now excite horror simply on the ground that the French Government had put their king to death? The Directory, by the way, had not as a government executed Louis XVI. Would Burke, one wonders, have blamed Louis XIV. for recognising Cromwell, who was in the strictest sense a regicide?