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(B): Absence of Changes in the Law - Albert Venn Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (LF ed.) [1917]

Edition used:

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).

About Liberty Fund:

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


(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.

(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 1800,50 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. 106,51 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:52 persons guilty of this or any other offence under the Act are made liable to conviction on summary procedure before justices of the peace.53

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.54 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.55

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.56

2. For the purpose of violating a private right in which the public has a sufficient interest,57 or, in other words, for the purpose of committing any tort or breach of contract which materially affects the interest of the public.58

3. For any purpose clearly opposed to received morality or to public policy.59

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 [sic] 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.60

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)61 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 20062 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,63 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.64

The Combination Act, then, of 1800 represented the public opinion of 1800.65

The Six Acts of 181966 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 system67 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 1905.68

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),69 the partial abolition of the pillory (1816),70 the abolition of the whipping of women (1820),71 the earliest attempt to forbid cruelty to animals (1822),72 the abolition of State lotteries (1826–1827),73 the prohibition of the use of spring guns (1827).74

All these measures humanised the law of England. They are all distinctly due to the increasing development of humanitarianism,75 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,76 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.77 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.78 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.79

No better example of philanthropic legislation during the supremacy of Tory statesmanship can be found than the Health and Morals Act, 1802.80

Up to that date there existed no factory81 legislation whatever.82 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,83 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, 1802,84 and were passed in 1819,85 in 1825,86 in 1829,87 and, to a great extent, even to the more effective Act of 1831.88

[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.

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

[51. ]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.

[52. ]Stephen, Hist. iii. 208.

[53. ]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.

[54. ]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.

[55. ]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.

[56. ]“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.

[57. ]Erle, 32.

[58. ]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.

[59. ]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.

[60. ]Stephen, Hist. iii. 209.

[61. ]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.

[62. ]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.

[63. ]57 Geo. III. c. 19, s. 27; Wright, 23, 24.

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

[65. ]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.

[66. ]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).

[67. ]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.

[68. ]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.

[69. ]46 Geo. III. c. 119.

[70. ]56 Geo. III. c. 138.

[71. ]1 Geo. IV. c. 57.

[72. ]3 Geo. IV. c. 71.

[73. ]6 Geo. IV. c. 60; 7 & 8 Geo. IV. c. 28.

[74. ]7 & 8 Geo. IV. c. 18.

[75. ]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.

[76. ]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.

[77. ]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.

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

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

[80. ]42 Geo. III. c. 73.

[81. ]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.

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

[83. ]See Lect. VII., post.

[84. ]42 Geo. III. c. 73.

[85. ]39 Geo. III. c. 66.

[86. ]6 Geo. IV. c. 63.

[87. ]10 Geo. IV. c. 51.

[88. ]1 & 2 Will. IV. c. 39. This last Act was of a wider scope and comes within the period of individualism.