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(C): Why considerable changes took place during the Period of Quiescence - 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).

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.


(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

(D)

Close of the Period of Quiescence

From 1815 to 1820, or even to 1825, Toryism was supreme in State and Church, reform was identified with revolution, and legislative reaction, in the judgment of Whigs and Radicals, menaced the hereditary liberties of Englishmen. In 1830 legislative inertia came with apparent suddenness89 to an end. The activity of Parliament, which has lasted, though, with varying force, till the present day, evinced for a short time a feverish energy which alarmed tried reformers. “All gradation and caution,” murmured Sydney Smith, “have been banished since the Reform Bill—rapid high-pressure wisdom is the only agent in public affairs.”90

Whence this sudden outburst of legislative activity?

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

This general reply itself needs explanation. We must examine a little further what were the slowly operating causes of a noteworthy revolution in opinion. Our task will be lightened if we bear in mind that men’s beliefs are in the main the result of circumstances91 rather than of arguments, and that a policy, or rather the public opinion from which it derives its authority, is often in the greatest danger of overthrow at the moment of its apparent triumph.92

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

(1) As to the Change in the Social Condition of England. It is somewhat difficult for a student to realise the indisputable fact that a period of legal stagnation was in other respects a period of great moral and intellectual activity.93 The termination, indeed, of the great war opened a season of popular distress, which, however, slowly passed, as the century went on, into a time of mercantile and manufacturing prosperity. It was an era of social change. Population was constantly on the increase. In 1801 the population of England and Wales was, in round numbers, 8,000,000; in 1811 it was 10,000,000; in 1821 it was 12,000,000; and in 1831 it was 13,000,000. There was no reason to suppose that an increase which came very near to 2,000,000 in every decade would be arrested. Sagacious observers might conjecture that, as has already happened, the inhabitants of England and Wales would be quadrupled94 by the end of the century. This increase belonged in the main to the operative or industrial classes. It was stimulated by inventions in machinery, by the making of canals, by the use of steam, by the opening of coal mines and the like. England was in fact changing from an agricultural into a manufacturing country, and in the north at any rate was becoming a vast industrial city. And this increase in the numbers of the people coincided with a shifting of the centres of population. Till towards the end of the eighteenth century the majority of the English people lived in the south and the west of England; Bristol was, next to London, the most important of our cities. From the beginning of the nineteenth century, manufactures, population, and wealth kept flowing from the south to the north of England; new cities sprung up in Lancashire and the northern counties where there had formerly been nothing but wastes dotted with townlets and villages. Towns such as Birmingham, Manchester, and Liverpool acquired a new importance, and with this change the influence of employers of labour begun to overshadow the authority of squires and merchants. The country, moreover, it is perfectly clear, was full of energetic life. The gigantic and lasting effort by which victory was at last secured in the great war with France proved the strength of the nation. It has been well noted that deficient, or rather non-existent, as was any system of national education, “there is probably no period in English history at which a greater number of poor men have risen to distinction,”95 than at the end of the eighteenth and in the earlier part of the nineteenth century.

The greatest beyond comparison of self-taught poets was Burns (1759–1796). The political writer who was at the time producing the most marked effect was Thomas Paine (1737–1809), son of a small tradesman. His successor in influence was William Cobbett (1762–1835), son of an agricultural labourer, and one of the pithiest of all English writers. William Gifford (1756–1826), son of a small tradesman in Devonshire, was already known as a satirist and was to lead Conservatives as editor of The Quarterly Review. John Dalton (1766–1842), son of a poor weaver, was one of the most distinguished men of science. Porson (1759–1808), the greatest Greek scholar of his time, was son of a Norfolk parish clerk, though sagacious patrons had sent him to Eton in his fifteenth year. The Oxford professor of Arabic, Joseph White (1746–1814), was son of a poor weaver in the country, and a man of reputation for learning, although now remembered only for a rather disreputable literary squabble. Robert Owen and Joseph Lancaster, both sprung from the ranks, were leaders in social movements.”96

This was in literature the age of Coleridge (1772–1834), of Sir Walter Scott (1771–1832), of Wordsworth (1770–1850), of Charles Lamb (1775–1834), of Hazlitt (1778–1830), of Miss Austen (1775–1817), of Miss Edgeworth (1767–1849), of Byron (1788–1824), of Shelley (1792–1822), of Sydney Smith (1771–1845), of Jeffrey (1773–1850), and of the whole body of Edinburgh Reviewers.97 Add to this, that between 1800 and 1832 a younger body of writers, such as Macaulay (1800–1859), John Mill (1806–1873), Arnold of Rugby (1795–1842), J. H. Newman (1801–1890), Tennyson (1809–1892), who belong in influence to a somewhat later generation, were coming to manhood. Consider, at the same time, the existence of men of science such as Sir Humphrey Davy (1778–1829), or Sir John Herschell (1792–1871), and note the appearance of inventors such as Watt (1736–1819), and Stephenson (1781–1848). Imperfect and irregular as this list is, it affords irresistible evidence that, at a time when from special causes public opinion is opposed to legal or political innovation, a country may be full of vigour and of life.

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

Our system of parliamentary representation had long been full of absurdities. The House of Commons, before the Union with Ireland, consisted of 548 members, of whom 200 were elected by 7000 constituents.98 A majority of this 7000 might therefore decide a question against the opinion of many millions. The political power which a man possessed varied in the most capricious manner; if his estate is situate in one part of the kingdom he might possess a ten-thousandth part of a single representative; if in another a thousandth; if in a particular district he might be one of twenty who chose two representatives; if in a more favoured spot he might possess the right of appointing two members himself; if he lived in one town he might have no representative at all, and might, as was remarked by Paley, take no more part in electing the persons who made the law by which he was governed than if he had been a subject of the Grand Signior; whilst forty-two members were lavished upon Cornwall, neither Birmingham nor Manchester had any representative whatever; and whilst about one-half of the House of Commons obtained their seats in that assembly by something like popular election, the other half obtained them by purchase, or by the nomination of single proprietors of great estates. Boroughs, or, in other words, seats in the House of Commons, were bought and sold as openly as any article of commerce, and the King was at times himself the great purchaser of boroughs. “This flagrant incongruity in the constitution,” to use the words of Paley, had existed for centuries, and continued to exist up to 1832. The objections to it were patent, and had often been pointed out. They were already felt in the time of the Commonwealth, and were more or less remedied by the constitution of 1654.99 But, though the existence of members of Parliament nominated by borough owners had towards the end of the eighteenth century provoked theoretical censure, it was not apparently felt by the mass of the people to be a pressing grievance. In 1825, and still more in 1830, the incongruities of an unreformed Parliament had become in the eyes of many Englishmen an intolerable abuse. The reason for this change of feeling is easy enough to discover. As long as the power of the State was centred in the south and west of England, a system which denied representatives to Birmingham or Manchester or Sheffield, whilst it showered representatives on petty Cornish boroughs, might be defended on grounds of expediency by ingenious thinkers such as Paley, or by practical statesmen such as Lord Liverpool or Peel; any constitution which gives real representation, in however strange a manner, to the classes which are powerful in the State, achieves one main end of representative government. But when population, wealth, trade, and power shifted towards the north, apologies for the vices of our representative system, even from the mouths of eminent statesmen, began to sound like dishonest pleas suggested by antiquated prejudice, and put forward to preserve the predominance of the Tory party. No doubt Sir Walter Scott, with all his sound judgment, and others who possessed his good sense without his genius, defended institutions struck with decay, on the true plea that under these institutions the English had become the freest and the most wealthy among the nations of the earth; but apology came perilously near to condemnation when it was, in effect, the admission that aged institutions had not been modified in accordance with the growth and development of England. The best defence for the unreformed Parliament—namely, that it represented all that was most powerful in the State—became weaker year by year. The manufacturers and the artisans of the towns had become a power in the land, but they manifestly received no adequate recognition in Parliament.

The defects, moreover, of parliamentary representation were not compensated for by the activity or flourishing condition of local authorities. No part of the administrative system had suffered so complete a collapse as municipal government. On this point the report of the Commission of 1834 is absolutely decisive. The municipal corporations of England were marked by almost every defect which such bodies could exhibit. They did not represent the inhabitants of the towns whose affairs they were supposed to administer. They were inefficient: they were corrupt. Duties which ought to have been discharged by a corporation were, if discharged at all, placed in the hands of separate bodies—e.g. improvement commissioners—created to perform some special service. The following facts are significant. The prosperity of Birmingham was attributed by observers to that rising town being still in theory a village and free from the disadvantage of being a corporation;100 the general distrust of corporate government led the authors of the Municipal Reform Act, 1836, to bestow astonishingly narrow powers even upon the reformed corporations. The counties, with the affairs whereof their inhabitants had for the most part little to do, were in reality governed by the justices of the peace. The rule of the justices had its defects, but it was not marred by corruption, and was better than the government of the towns under the old municipal system.

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

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

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

“The unhappy dislocation,” writes Sir Walter Scott,

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

The banks and monied men should use their influence, which is omnipotent with the manufacturers, to enforce the observance of these resolutions, so necessary for the general quiet. That such regulations would secure tranquillity is quite certain, for notwithstanding the general influence of example, the workmen in some of the greatest manufactures did not furnish a single recruit to Radicalism.101

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

Nothing can be more necessary for the happiness of ordinary citizens than protection against robbery and physical violence. Yet even in London the protection was not adequately supplied. Until 1829 the capital of England did not possess a regular body of police.102 The welfare, again, of a mercantile community is dependent on the existence of a fair and effective law of bankruptcy, yet the state of the bankruptcy law shocked every man versed in business. There was an absolute opposition on this matter between the law of the land and the feelings of the mercantile world. The state of things as late as the beginning of the reign of Victoria (1837) is thus described by Lord Bowen:

The great commercial world, alienated and scared by the divergence of the English bankruptcy law from their own habits and notions of right and wrong, avoided the court of bankruptcy as they would the plague. The important insolvencies which have been brought about by pure mercantile misfortune were administered to a large extent under private deeds and voluntary compositions, which, since they might be disturbed by the caprice or malice of a single outstanding creditor, were always liable to be made the instruments of extortion. “To the honest insolvent the bankruptcy court was a terror.” To the evil-doer it afforded means of endlessly delaying his creditors, while the enormous expenses of bankruptcy administrations rendered it the interest of few to resort to the remedy, except with the object of punishing the fraudulent or vexing the unfortunate.103

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

(3) As to the lapse of time. Before the outbreak of the French Revolution intelligent Englishmen of all classes were prepared to welcome natural and gradual reforms. Blackstone, though an optimist, was not opposed to reasonable changes; Pitt, Burke, and Fox were all of them in different ways reformers; and the men we have named are representatives of that large class of Englishmen who at most times have been quite willing to abolish abuses or grievances of a practical character. In the ordinary course of things the law of England would have been amended before the end of the eighteenth, or soon after the beginning of the nineteenth century. The obstacle to reasonable reform is to be found in the revolutionary excesses of France. In England the French Revolution worked nothing but evil; it delayed salutary changes for forty years, and rendered reforms, when at last they came, less beneficial than they might have been if gradually carried out as the natural result of the undisturbed development of ideas suggested by English good sense and English love of justice.104 But to the men who began to take part in public life, or to take an interest in national affairs, between 1815 and 1830, the horrors of the Reign of Terror were mere traditions. They knew by experience the narrow-mindedness of the Tories who had governed England since the beginning of the century, and toryism had by a strange fatality grown less reasonable and more reactionary from the very time when Waterloo, and the permanent peace which it established, had deprived the resistance to all innovation and restrictions on individual liberty of such justification as was afforded by a life and death struggle for national independence. In 1819 or 1820 the Six Acts, the so-called Manchester massacre, the sordid scandals of the quarrel between George IV. and his Queen were present realities. The horrors of a Regicide Peace105 were ancient history. Sensible men perceived that the state of England would soon necessitate a choice between revolution and reform.

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

[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.

[89. ]See pp. 23–24, ante.

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

[91. ]See pp. 20, 21, ante.

[92. ]See p. 17, ante.

[93. ]The introduction of fast coaches towards the end of the eighteenth and the beginning of the nineteenth century is analogous to the introduction of railways at a later date. [Editor’s note: This footnote was added in the second edition.]

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

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

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

[97. ]The Edinburgh Review was started in 1802.

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

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

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

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

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

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

[104. ]The delay, however, in reform by Eldon and his school conferred some benefit on the country. It postponed action until in 1832 it took the shape of reform instead of revolution. [Editor’s note: This footnote was added in the second edition.]

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