The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• A Historical Sketch of Liberty and Equality As Ideals of English Political Philosophy From the Time of Hobbes to the Time of Coleridge 1 .
• ( a ): Liberty
• ( B ): Equality.
• The Law of Real Property 1
• The Laws of Wales.—the Kindred and the Blood Feud 1 .
• The Criminal Liability of the Hundred 1 .
• Mr Herbert Spencer’s Theory of Society 1 .
• I.: The Ideal State.
• II.: The Law of Equal Liberty.
• The Early History of Malice Aforethought 1
• The Seisin of Chattels 1 .
• The Mystery of Seisin 1 .
• The Deacon and the Jewess; Or, Apostasy At Common Law 1 .
• The Beatitude of Seisin 1
• The Suitors of the County Court 1
• The Shallows and Silences of Real Life 1
• Why the History of English Law Is Not Written 1

THE SHALLOWS AND SILENCES OF REAL LIFE1

In the above title we claim no copyright, and we freely place it at the service of any of our readers who may be on the outlook for a pretty name to give to some volume of pensive musings. “The Shallows and Silences of Real Life,” by the author of “Soul Flakes,” “Seaweed from the Sands of Time,” “The Cosier Corners of a Quiet Pew,” etc., would look well, and should command a sale in serious family circles. But it requires only a slight acquaintance with our classical literature and our current politics to understand that here we mean to speak of county government. Many mean to speak of it before long; we shall be deluged with speeches about it; there will be severe fighting, and like enough, before the end of the session, every one, by virtue of his political profession as Tory or Radical, will be bound to have or suppose that he has very definite opinions about all its pettiest details. While as yet the strife is but beginning, we have still time to cast a quiet look around us, and to inquire in a spirit of truth, what all the fuss that we anticipate is going to be about.

To put the matter briefly, an old form of local government which has served us for five centuries and more, is breaking up, and, to say the least, must undergo a great change which cannot leave even its essential character unaltered. A vital organ of the body politic must be renewed. Hitherto such government as our counties have had, has been government by justices of the peace—government, that is, by country gentlemen, appointed by the Lord Chancellor in the Queen’s name, on the recommendation of the Lord Lieutenant of the county, legally dismissible at a moment’s notice; but practically holding their offices for life. This institution has had a great past, we had almost said a splendid past; but Englishmen, unless they are taught by foreigners, seldom see its greatness, and to talk of splendour might therefore seem absurd. Our historians, even some who write what call themselves “constitutional histories,” are apt to spend all their energies upon describing the flashy episodes of national life, scenes in Parliament, tragedies on Tower Hill, the strife of Whigs and Tories, wars and rumours of wars.

To deal with the vulgar affairs of commonplace counties, to show what the laws made in Parliament, the liberties asserted in Parliament, really meant to the mass of the people, this was beneath their dignity or beyond their industry. To chronicle such exiguous beer (for even of the control over ale-houses there is much to be said) would bring no fame, and would be a very laborious task. Some day it will be otherwise: a history of the eighteenth century which does not place the justice of the peace in the very foreground of the picture, will be known for what it is—a caricature. The excuse for our historians—and of course there is an excuse—is this: that having been brought up to regard the justice of the peace as a perfectly natural phenomenon—natural as the air we breathe—they find nothing to say about this incarnation of the obvious. If there had not been justices, this indeed, as a thing contrary to nature, would have called for explanation, and perhaps regret. We say that some day it will be otherwise, for no doubt there is a great change coming. When it has come and has worked for a while, then to those reared under the new system the historian will have to explain that their fathers lived under a very different system, and one which well deserves retrospective examination, possibly retrospective praise. We think that the praise will come, that it has been deserved by centuries of honest, capable, unostentatious work. The justice is a modest man; he has no constituents, and therefore can afford to be modest; perhaps he seldom knows how important he really is. He has become accustomed also to hear small wit broken over “the great unpaid”; and, doubtless, to be great and yet unpaid is a piece of aristocratic insolence. We ourselves will confess to having referred to two famous justices of Henry IV’s reign, in the hope—a vain hope, we fear—of attracting readers by a title which should recall an excellent piece of good wit. But to have made men merry, this surely is not even yet the unpardonable sin; that from age to age people have been pleased to be pleasant over their governmental institutions is surely not a fact which damns those institutions as unsuitable to the people. A joke is better than a curse, and local rulers have not always gone uncursed in all parts of the world.

Certainly, to any one who has an eye for historic greatness it is a very marvellous institution, this Commission of the Peace, growing so steadily, elaborating itself into ever new forms, providing for ever new wants, expressing ever new ideas, and yet never losing its identity, carrying back our thoughts now to a Yorkist, now to a Lancastrian king, stamped with the sign manual of the Tudor monarchy, telling us of rebellion, restoration, revolution, of peaceful Georgian times, of the days of Bentham and the great reforms. Look where we may, we shall hardly find any other political entity which has had so eventful and yet so perfectly continuous a life. And then it is so purely English, perhaps the most distinctively English part of all our governmental organisation. The small group of country gentlemen appointed to keep the peace, to arrest malefactors, and lead the hue and cry, acquires slowly and by almost insensible degrees the most miscellaneous, multitudinous duties, judicial and administrative, duties which no theorist will classify, for their rich variety is not the outcome of theory, but of experience. And all the while this group shows the most certain sign of healthy life; it can assimilate fresh elements of the most different kinds, and yet never cease to be what it has been. Aristocratic it has been from the first, but never obligarchic; always ready to receive into itself new members who would have the time, the means, the will to do the work, without inquiring into the purity of their pedigrees or their right to coat armour. Our justices have never been a caste, nor the representatives of a caste; there has been nothing feudal, nothing patrimonial in their title; they have represented the State, and yet no one would call them officials. They have adapted themselves to many changes in their environment; they may do so yet once more.

Now, no one doubts that a great change is at hand, that the justices are going to lose some of their most important functions. But that this should be so is not a little strange. Generally, when some great change is at hand in the domain of politics, very strong language is used about the “abuse”—for such it is called—that is to be destroyed. The vials are outpoured, the trumpets are blown, doomsday has at last overtaken the wicked. A terrible indictment is sworn, in which the weakest words are incompetence and corruption, oppression and extravagance. In the present case there has been nothing of the sort; the most zealous advocates of reform have hardly gone beyond a more or less graceful pleasantry.

Shallow, as they call him, is at worst an anomaly, and Silence is obviously an anachronism in this eloquent nineteenth century. It is not asserted that the justices, in administering the affairs of the county, have been corrupt or extravagant. Notoriously the fact is otherwise. For the last half-century we have been trying many experiments in local government: we have had municipal corporations, poor-law boards, boards of health, school boards, all constituted on different principles. The result of these experiments is simply this: that of all known forms of local government, government by justices of the peace is the purest and the cheapest. More than this can be said; it is the form which requires least control on the part of the central Government; this is no slight merit in these days when all are complaining of over-centralisation. The average justice of the peace is a far more capable man than the average alderman, or the average guardian of the poor; consequently he requires much less official supervision. As a governor he is doomed; but there has been no accusation. He is cheap, he is pure, he is capable, but he is doomed; he is to be sacrificed to a theory, on the altar of the spirit of the age.

Let it well be understood that a great change is absolutely necessary. Taken as a whole, our local government is a weltering chaos out of which some decent order has to be got. During the last fifty years boards of ever so many different kinds have been created all over the country; their districts overlap, their powers conflict; they are not much respected, they are not much trusted; their duties are too humble to attract competent men; they have to be bound hand and foot by the orders of a central bureau. Rearrangement and consolidation there must certainly be, and the sooner the better. This work cannot possibly be done without interfering with the powers of the justices; and to increase the powers of the justices no one proposes. If we ask why not, the answer must be that the spirit of the age forbids it. Rightly or wrongly, we have determined to carry the principle of popular election into every department of Government. To regret this would be vain, and the control of the central Government having already been placed in the hands of the great mass of the people, it seems to us distinctly desirable that the control over the local government should be in the same hands.

The wisest advocates of representative government—those who have based their case, not upon natural rights, but upon considerations of national welfare—have laid much stress upon the educational influence of the electoral franchise. Now, if ever the multitude of the newly-enfranchised is to be educated by having votes, it must be by having votes which they can exercise about matters fairly within the range of their intellect and their interests. It is possible, and we hope not treasonable, very seriously to doubt whether the issues of national politics are at the present day within that range. About local affairs the judgment of the average elector is already better worth having, and it would become still more valuable if local affairs were to gain new dignity and importance. As it is, we have begun at the wrong end; we have asked men to have opinions about extremely difficult questions, when they have never had a chance of forming effective opinions about simpler questions. Any way, the education of the electoral body will be a very long affair; but there is no school for it but that which is kept by experience. Perhaps the lesson of the parish should have been learned before the study of the county was begun, and the county should have been mastered before the kingdom was touched. Things have fallen out otherwise. This could hardly have been helped, and the mistake may not yet be irretrievable. By the commission of copious blunders in local business, the governing class may be taught to avoid more disastrous blunders in national business. A highly-privileged governing class we have raised up—a class with ample political rights and few political duties. Duties should be provided for it. In vain we think of old times, when the voter was one who, in countless ways, had to serve his township, his county, his king. We cannot invite our rulers even to take their turn at jury service; they would refuse the invitation; and if they accepted it, there would soon be an end of trial by jury. We trust men to decide the question of Home Rule whom we would not trust to try an action for slander. There seems nothing for it but to give them a sphere of action in which the consequences of their errors should be very obviously manifest. At present there is no such sphere. The various local boards which exist are too obscure; governmental powers have been too much macadamised; responsibility has been scattered about in fragments; not one man in a thousand knows under how many “authorities” he lives.

The situation is critical; it should be faced boldly. If it is so faced there is a chance that out of a great deal of immediate evil some permanent good may come. There will be jobbery and corruption, incompetence and extravagance, very possibly there will be gross injustice. Then will come the cry for ever fresh interferences on the part of the central Government, for more State-appointed inspectors, accountants, auditors; but if the lesson of the past fifty years has really been of any good to us, the cry should be resolutely resisted. The local bodies should be left to flounder and blunder towards better things. A local board under the present pressure of central government is a sorry thing; a body, which, if it is unwise, is futile; which, if it is wise, is governed by its clerk. That pressure should be lightened; there is no good in half trusting men; they should be trusted fully or not at all. The fullest trust, however, does not necessarily imply that the person trusted is wise; it may well mean only that he ought to have an opportunity of showing himself how unwise he is. Give the local “authorities” a large room in which, if they can do no better, they can at least make fools of themselves upon a very considerable and striking scale. Such is the counsel that we are inclined to give, and it is one which should be acceptable to all parties in the State.

For a similar reason it may be hoped that no elaborate attempt will be made at a compromise between the old and the new. If the principle of government by elected representatives is to be extended, it should be extended frankly and courageously, otherwise there will only be fresh irritation and discontent. The hope of securing able and just administrators must now lie, not in the creation of fancy franchises, which at best are fleeting, rickety things, but in the character of the work. It must be made dignified and attractive. If possible, men of the same stamp as those who have hitherto been active at Quarter Sessions should be obtained; but no tinkering of the electoral machinery can assure this result. The old spirit, the spirit which century after century has moved the squires of England to work hard in their counties, doing justice and keeping order, is not yet extinct. Capable men there are, and it will be possible to attract them if the work to which they are called is interesting, important work, and not the mere registering of the orders of the central bureau. If they have patience they will be elected, if elected they will be heard; for even the most ignorant and careless electorate will at times be convinced that the foolishness of fools is folly.

The outlook is certainly gloomy; the darkest cloud has not yet been mentioned. If the justices are deprived of their governmental work, will they care to be justices any longer? This is a momentous question; on the answer to it depends a great deal of the future history of England. Suppose that they abandon the judgment seat; in place of the collegiate body of unpaid justices we shall have the paid professional magistrate, the inevitable “barrister of seven years’ standing.” This will mean more patronage for the Minister, more promotion for politically useful lawyers, and, of course, more expense. But it is not of expense that we would speak. It is indeed very difficult to tell how much of the English respect for law, which (though recent ebullitions may look to the contrary) is still deep-seated, is centred in the amateur justice of the peace. If we have to name the institution which has had most to do with its growth, we should long hesitate between the Commission of the Peace and Trial by Jury. Englishmen have trusted the law; it were hardly too much to say that they have loved the law; but they have not loved and do not love lawyers, and the law that they have loved they did not think of as lawyers’ law. The most learned “barrister of seven years’ standing” will find it hard to get so high a reputation among country folk for speaking with the voice of the law, as that which has been enjoyed by many a country squire whose only juristic attainment was the possession of a clerk who could find the appropriate page in Burn’s Justice.

This reputation depended in part on the fact that the squire was the squire, and respect for the squire as such is certainly disappearing; but it depended also on the fact that the squire was no trained lawyer, that his law was very simple, that his words were few and plain, and went straight to the point. Of course we can all, when occasion serves, make merry over justices’ justice; but if we look at the history of this justice as a whole, we see that it has been marvellously, paradoxically successful. Even at the present day, if the honest people who come in contact with magistrates (the votes of the criminal class we are not at pains to collect) had their choice between lawyers’ law and justices’ justice, we should find that the coarser article had many humble admirers. At any rate, it should be understood that the future of the amateur magistracy is very doubtful. Hitherto the dreary task of hearing petty charges has been varied and enlivened by very miscellaneous business of a more or less governmental kind. Whether many men will care to be mere police magistrates, and get no pay for the work, is certainly open to question. Time after time the country gentlemen have risen to the occasion; they may do so yet once more.

But the severance of administrative from judicial work must have very serious consequences. It is curious that some political theorists should have seen their favourite ideal, a complete separation of administration from judicature, realised in England; in England of all places in the world, where the two have for ages been inextricably blended. The mistake comes of looking just at the surface and the showy parts of the constitution. The work of separating what have never been conceived as separate will be hard enough; but suppose it done, shall we be the gainers? Hitherto all the business of granting licenses, and the like, has been transacted by men trained in judicial work, men seated on a bench, men holding sessions, men who on the same day would like enough have to try a vagabond, or to consider whether there was sufficient reason for sending a prisoner to trial for murder. We puzzle foreigners by our lax use of the word “jurisdiction,” and it is remarkable enough. Whatever the justice has had to do has soon become the exercise of a jurisdiction; whether he was refusing a license or sentencing a thief, this was an exercise of jurisdiction, an application of the law to a particular case. Even if a discretionary power was allowed him, it was none the less to be exercised with “a judicial discretion”; it was not expected of him that he should have any “policy”; rather it was expected of him that he should not have any “policy.” And now all this is likely to be otherwise. A board will take the place of the bench; a policy voted about by constituents will take the place of law. All will be very neat and pretty, and explicable by first principles; the administrative work will be performed by the elected representatives of those whose interests are concerned; for the judicial work there will be the barrister of seven years’ standing. The amphibious old justice who did administrative work under judicial forms, will be regarded as inadequately differentiated to meet the wants of a highly evolved society. But unless our reformers go very wisely to work, they will sacrifice the substance of just government to mere theoretic elegance. Much is at stake, no less than the general trust of the people in law and government. What first and foremost is wanted in local government, is not administrative ability, but plain justice; whether we shall get this out of boards elected to echo party cries, to represent policies, remains to be seen. Our best hope must be that such men as those who have hitherto done work of every kind under the name of justices, will still do that work, and more also, partly under the name of justices, partly under some other name. Unless the services of such men can be obtained, the present year will be a mournful year in English history. On the other hand, if the present Ministry and the present Parliament can meet and conquer the very serious difficulties of the case, we shall place to their credit one of the greatest legislative exploits of the century.

[1]The Reflector, February 1888.