The English Utilitarians, Volume I.

ion is suggested by a phrase attributed to Sir Josiah Child.[8] The laws, he said, were a heap of nonsense, compiled by a few ignorant country-gentl

changes, required by the growth of new social conditions, had to be made under pretence of applying the old rules supposed to be already in existence. Thus grew up the system of 'judge-made law,' which was to become a special object of the denunciations of Bentham. Child had noticed the incompetence of the country-gentlemen to understand the regulation of commercial affairs. The gap was being filled up, without express legislation, by judicial interpretations of Mansfield and his fellows. This, indeed, marks a characteristic of the whole system. 'Our constitution,' says Professor Dicey,[9] 'is a judge-made constitution, and it bears on its face all the features, good and bad, of judge-made law.' The law of landed property, meanwhile, was of vital and immediate interest to the country-gentleman. But, feeling his own incompetence, he had called in the aid of the expert. The law had been developed in medi?val times, and bore in all its details the marks of the long series of struggles between king and nobles and parliaments. One result had been the elaborate series of legal fictions worked out in the conflict between private interests and public policy, by w

rchant might be the father or father-in-law of peers; a successful soldier or sailor might himself become a peer, but generally he began life as a member of the ruling classes, and his promotion was affected by parliamentary influence. But a successful lawyer might fight his way from a humble position to the House of Lords. Thurlow, son of a country-gentleman; Dunning, son of a country attorney; Ellenborough, son of a bishop and descendant of a long line of North-country 'statesmen'; Kenyon, son of

law became so savage as to shock every man of common humanity. It was tempered by the growth of technical rules, which gave many chances of escape to the criminal; and by practical revolt against its excesses, which led to the remission of the great majority of capital sentences.[10] The legislators were clumsy, not intentionally cruel; and the laws, though sanguinary in reality, were more sanguinary in theory than in practice. Nothing, on the other hand, is more conspicuous than the spirit of fair play to the criminal, which struck foreign observers.[11] It was deeply rooted in the whole system. The English judge was not an official agent of an inquisitorial system, but an impartial arbitrator between the prisoner and the

er, and had to be prompted by his clerk, the two representing on a small scale the general relation between the lawyers and the ruling class. Burn tells the justice for his comfort that the judges will take a lenient view of any errors into which his ignorance may have led him. The discharge of such duties by an independent gentleman was thought to be so desirable and so creditable to him that his want of efficiency must be regarded with consideration. Nor, though the justices have been a favourite butt for satirists, does it appear that the system worked badl

the influence of the crown over all the corporations in England. The country-gentleman had little reason to fear that government would diminish his importance by tampering with his functions. The justices of the peace were called upon to take a great and increasing share in the administration of the poor-law. They were concerned in all manner of financial details; they regulated such police as existed; they looked after the old laws by which the trades were still restricted; and, in theory at least, could fix the rate of wages. Parliament did not override, but only gave the necessary sanction to their activity. If we looked through the journals of the House of Commons during the American War, for example, we should get the impression that the whole business of the legislature was to arrange administrative details. If a waste was to be enclosed, a canal or a highroad to be constructed, there was no public department to be consulted. The gentry of the neighbourhood joined to obtain a private act of parliament which gave the necessary powers to the persons interested. No general enclosure act could be passed, though often suggested. It would imply a central commission, which would only, as was suggested, give rise to jobbery and take power out of the natural hands. Parliament was omnipotent; it could regulate the affairs of the empire or of a pari

quire's eldest son could succeed to his position; a second son might become a general or an admiral; a third would take the family living; a fourth,

ictionary of Nat

f the Constit

single act making larceny in general punishable by death would be more severe than fifty separate acts, making fifty different varieties of larceny punishable by death. He adds, however, that the scheme of punishment was 'severe to the highest degr

1822 in Stephen's History, i. 429, 439, 451

Sessions' are formed in the 'most anomalous' way; that they represent the old feudal principle, and are at variance with the fundamental princip

vement even in the first half of the century. See Cunningha