By unsystematic and spasmodic legislation the criminal 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.(9)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.(10)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 prosecutor.In political cases especially a marked change was brought about by the revolution of 1688.If our ancestors talked some nOnsense about trial by jury,the system certainly insured that the persons accused of libel or sedition should have a fair trial,and very often something more.Judges of the Jeffreys type had become inconceivable,though impartiality might disappear in cases where the prejudices of juries were actively aroused.Englishmen might fairly boast of their immunity from the arbitrary methods of continental rulers;and their unhesitating confidence in the fairness of the system became so ingrained as to be taken as a matter of course,and scarcely received due credit from later critics of the system.
The country-gentleman,again,was not only the legislator but a most important figure in the judicial and administrative system.As justice of the peace,he was the representative of law and order to his country neighbours.The preface of 1785to the fifteenth edition of Burn's Justice of the Peace,published originally in 1755,mentions that in the interval between these dates,some three hundred statutes had been passed affecting the duties of justices,while half as many had been repealed or modified.The justice was of course,as a rule,a superficial lawyer,and had to be prompted by his clerk,the two representing on a small scale the general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 badly.When it became necessary to appoint paid magistrates in London,and the pay,according to the prevalent system,was provided by fees,the new officials became known as 'trading justices,'and their salaries,as Fielding tells us,were some of the 'dirtiest money upon earth.'The justices might perhaps be hard upon a poacher (as,indeed,the game laws became one of the great scandals of the system),or liable to be misled by a shrewd attorney;but they were on the whole regarded as the natural and creditable representatives of legal authority in the country.
The justices,again,discharged functions which would elsewhere belong to an administrative hierarchy.Gneist observes that the power of the justices of the peace represents the centre of gravity of the whole administrative system.(11)Their duties had become so multifarious and perplexed that Burn could only arrange them under alphabetical heads.Gneist works out a systematic account,filling many pages of elaborate detail,and showing how large a part they played in the whole social structure.An intense jealousy of central power was one correlative characteristic.Blackstone remarks in his more liberal humour that the number of new offices held at pleasure had greatly extended the influence of the crown.This refers to the custom-house officers,excise officers,stamp distributors and postmasters.But if the tax-gatherer represented the state,he represented also part of the patronage at the disposal of politicians.A voter was often in search of the place of a 'tidewaiter';and,as we know,the greatest poet of the day could only be rewarded by making him an exciseman.Any extension of a system which multiplied public offices was regarded with suspicion.Walpole,the strongest minister of the century,had been forced to an ignominious retreat when he proposed to extend the excise.The cry arose that he meant to enslave the country and extend 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 high-road 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.
