(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) 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, which left untouched the law of the constitution.

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

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, 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, 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. 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. 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; five years later it was done away with as regards most actions in the Superior Courts; in 1869 it was abolished as regards all civil actions, and also as regards all proceedings instituted in consequence of adultery.

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. 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, 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. 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. If A brought an action for a wrong done him abroad 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 ejectment 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, 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, they were, as experience has now proved, absolutely unnecessary. They were nevertheless tolerated, or rather held unobjectionable, by the public opinion of 1800, just as were other survivals and fictions which were as noxious as they were obviously ridiculous. Under the proceeding, in itself anomalous, of an appeal of murder, the appelle might, through his right to claim trial by battel, sometimes escape conviction, as he certainly did as late as 1818, by reliance not on proof of his innocence, but on the strength of his arm. 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. 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; in 1776 it saved the Duchess of Kingston from punishment for bigamy. 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.

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. Entails were barred by fictitious actions up to 1833. Privilege of Peerage was not abolished till 1841. 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,—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.