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LECTURE V: The Period of Old Toryism or Legislative Quiescence (1800–1830) - Albert Venn Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (LF ed.) [1917]

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Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century, edited and with an Introduction by Richard VandeWetering (Indianapolis: Liberty Fund, 2008).

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


LECTURE V

The Period of Old Toryism or Legislative Quiescence (1800–1830)

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.3

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.4

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,5 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.6

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.7

And Paley’s view of the unreformed House of Commons is in substance his view of the whole British constitution,8 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;9 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.10

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 present11 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.12

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.13

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 paradox14 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 law15 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.16

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,17 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.18

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.19 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.20 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)21 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,22 which left untouched the law of the constitution.

In every sphere of law this absence of change is equally visible;23 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,24 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.25

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,26 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, 1836,27 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.28 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.29 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;30 five years later it was done away with as regards most actions in the Superior Courts;31 in 1869 it was abolished as regards all civil actions, and also as regards all proceedings instituted in consequence of adultery.32

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.33 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,34 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.35 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.36 If A brought an action for a wrong done him abroad37 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 ejectment38 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,39 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,40 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 appellee 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.41 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.42 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;43 in 1776 it saved the Duchess of Kingston from punishment for bigamy.44 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.45

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 1827.46 Entails were barred by fictitious actions up to 1833.47 Privilege of Peerage was not abolished till 1841.48 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 1852,49 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.

[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.

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

[4. ]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.

[5. ]“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.

[6. ]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.

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

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

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

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

[11. ]1833.

[12. ]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.

[13. ]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.

[14. ]See p. 54, ante.

[15. ]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.

[16. ]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. [Editor’s note: The following was added in the second edition.] “Not one in twenty of the sentences was carried into execution.” May, Constit. Hist. ii. (1863 ed.) c. xviii. p. 597.

[17. ]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.

[18. ]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.

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

[20. ]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.

[21. ]See p. 68, post.

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

[23. ]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.

[24. ]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.

[25. ]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.

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

[27. ]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? [Editor’s note: The last half of this footnote was added in the second edition.]

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

[29. ]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.

[30. ]9 & 10 Vict. c. 95, s. 83.

[31. ]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.

[32. ]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.

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

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

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

[36. ]Ibid. p. 46.

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

[38. ]“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.

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

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

[41. ]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.

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

[43. ]19 State Trials, 1177.

[44. ]20 State Trials, 379.

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

[46. ]7 & 8 Geo. IV. c. 28.

[47. ]3 & 4 Will. IV. c. 74.

[48. ]4 & 5 Vict. c. 22.

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