How English Liberalism was Created by Accident and Custom, and then Destroyed by Liberals(1)
Sean Gabb
Published in 1998 as Historical Notes No. 31
ISBN 1 85637 410 6
by the Libertarian Alliance, London
Contents
One: The Question Stated
Two: The Seventeenth Century Origins of Liberal England
Three: The Administrative Vacuum of the Eighteenth Century
Four: The Decline and Fall of English Liberty
Conclusion: The Prospects for Liberty Notes
One: The Question Stated
According to William Winwood Reade, writing in the early 1870s,
placing aside hereditary evils which, on account of vested interests, it is impossible at once to remove, it may fairly be asserted that the government of this country is as nearly perfect as any government can be.(2)
Now, this is not one of those vague boasts that turn up in the literature of every powerful nation. Reade was what may loosely be called a classical liberal – that is, he believed in free markets, in personal freedom, and in the rule of law. He denied that it was either the duty or the ability of government to make people happy, but only to enable the conditions in which they themselves could pursue happiness as they conceived it.(3)
It seems hard on his own grounds to disagree with him. The previous 40 years have been seen as a time of nearly continuous progress towards his state of perfection. The criminal law had been humanised, and the civil law made cheaper and more rational. Central and local government had been cleared of waste and sinecures. The armed forces had been likewise reformed. Religious disabilities had been lifted. Trade protection had been all but abandoned, and other taxes were low and falling: the standard rate of income tax was 3d in the pound in 1872, and was to fall to 2d in 1873 – or from 1.25 per cent to 0.833 per cent.(4) And the old taxes on publication had been entirely abolished. At the same time, the National Debt was being repaid – down from £846.1m in 1836 to £784.2m in 1872; or, as a share of the growing national income, from 228.67 per cent to just 73.15 per cent.(5) The Poor Law no longer pauperised the working classes; and these, by the steady rise of incomes and by downward extensions of the franchise, were now being brought within the pale of the Constitution. As Reade said, there was much still to be done. But much had been done. More than any other in the world, the mid-Victorian State could be described, in Carlyle’s words as “anarchy plus the constable”.
Yet even as it was celebrated, this state of affairs was passing away. Year by year, the authorities were becoming more active – taking an increasing interest in the contractual and other relationships between individuals. By 1884, Herbert Spencer could take it for granted that
[r]egulations have been made in yearly-growing numbers, restraining the citizen in directions where his actions were previously unchecked, and compelling actions where previously he might perform or not as he liked; and at the same time heavier public burdens, chiefly local, have further restricted his freedom, by lessening that portion of his earnings which he can spend as he pleases, and augmenting the portion taken from him to be spent as public agents please.(6)
Perhaps worse from his point of view, much of this was being done by Liberal Governments, and in the name of liberalism. Joseph Chamberlain, for instance, not only called himself a liberal, but was President of the Board of Trade in the second Gladstone Ministry; and he was there making the sort of laws that Spencer abominated – Acts to allow local authorities to supply electric lighting, and to interfere with the running of the merchant marine. He justified this “new” liberalism on clever grounds:
When government was represented only by the authority of the Crown and the views of a particular class, I can understand that is was the first duty of men who valued their freedom to restrict its authority and to limit its expenditure. But all that is changed. Now government is the organized expression of the wishes and the wants of the people and under these circumstances let us cease to regard it with suspicion. Suspicion is the product of an older time, of circumstances which have long since disappeared. Now it is our business to extend its functions and to see in what ways its operations can be usefully enlarged.(7)
As Spencer saw it, however, all this was just an excuse for turning liberalism into a “new form of Toryism”, in which the old protective spirit could take on forms more suited to a democratic age.(8) He was not alone. In 1882, the Liberty and Property Defence League was founded – a coalition of individualist liberals and conservatives and business interests, drawn together to fight under the motto “Individualism versus Socialism”. The contribution of this body to the preservation of English liberty cannot be underestimated. During more than 30 years, it spent lavishly on its own campaigns, and coordinated action for others. Though for the next generation it would fight often very successfully, there could be no doubt that it was resisting an immensely more powerful impulse, which it was able at best to hinder.(9)
Taking a longer view, E.S.P Haynes felt certain enough in 1916, the middle year of the Great War, to say that
[t]here is no doubt that for the last forty years the whole tendency of British politics has been hostile to individual liberty…. We are no doubt fighting Prussian aggression, but not necessarily Prussian ideals of internal government. Indeed the only effect of the war up to now has been to strengthen the hands of Prussian-minded Britons.(10)
Turning from opinions to facts, there is no doubt that, starting around 1870, the British State began a remarkable and largely continuous expansion. Since the end of the French Wars, Government spending as a percentage of national income had been drifting downwards – from about a third in 1815 to just over 7 per cent in 1870. Thereafter, the fall stopped. There was no significant increase in time of peace until after the naval race with Germany began after 1905, when it rose to 8.47 per cent in 1913.(11) But in an age devoid of large wars, when the national income was briskly increasing, a stable share for public spending allows a considerable expansion of state activity. After the Great War, of course, Government spending went back to the levels of 1815, and eventually far beyond, reaching a peak of 52 per cent in 1972. Since then, it has drifted back down to about 40 per cent, rising and falling in line with conditions in the economy at large.
These figures indicate but do not precisely show the extent of modern control over our lives. It is fair to say that almost nothing we do is beyond state supervision where not control. Our working lives are regulated in ways so various and often overlooked as almost to challenge description. Whether we offer our labour to an employer or our services directly to the public, the terms on which we do so are in perhaps a minority of cases negotiated solely between the contracting parties. Our food is regulated at every point between its creation and arrival on our plates. Our health and fitness have become things managed by the State, with a growing system of punishments for disobeying the experts’ advice.(12) The raising of our children is closely watched; and there are even calls for procreation to be licensed by the State.(13)
Our entertainments are explicitly regulated, and sometimes forbidden, in the interests of our physical and moral well-being. We have a “War on Drugs” – something that, waged by the Chinese State, struck the Victorians as absurd.(14) In fighting that “war”, the British State is fast abolishing privacy in financial matters and reversing the burden of proof in criminal cases.(15)
By the standards of a classical liberal, most of us now alive were born into a welfare state. All of us now live in a police state. It may not be the sort in which the press is censored and people disappear. But it is the sort in which we stand beneath an absolute and arbitrary power. If that power is often used for benevolent ends – if the more plainly despotic laws are never fully enforced – that is because our masters please to rule us in this way. Give us new masters, or let the present ones please otherwise, and we shall soon discover the basics of how England is now governed.
The question here to be examined is – Why did this happen? How did the England of Reade’s day become the England of our day? Is it – as the socialists and social democrats insist – that liberalism was found at last to be a defective ideology, and that the departures of the present century have been on the whole for the best? Or, to take a slightly different point of view, is it that liberalism was only suited to one particular stage of social evolution, now long past? Or was it overcome by bad luck – the drift into power politics that began in 1870 and culminated in the Great War? Or was it overcome by a coalition of special interests? If this last, why did it prove so feeble in the contest?
The question of why liberalism collapsed has been asked endlessly – and it was even being asked before it had collapsed.(16) I have been asking it ever since I became a liberal in my early youth. I cannot claim any complete answer. But the longer I have thought about the question, and read the answers supplied by other people, the more I suspect that there never was any strictly liberal ascendency in England. Undeniably, there was a Liberal England. But its rise and existence until 1914 owed comparatively little to liberal ideology. It owed far more to separate, if related circumstances. I suspect also that the great diminution of liberty that has occurred since Reade’s day was set in motion by people like him.Two: The Seventeenth Century Origins of Liberal England
To see this, let us begin by looking at the ideas that shaped and maintained English liberty between the seventeenth and the beginning of the nineteenth centuries. Because it is one of the very few political texts continuously published and read since the seventeenth century, we could go to John Locke’s Second Treatise, published in 1690. According to paragraph 4,
[t]o understand Political Power right, and derive it from its Original, we must consider what State all Men are naturally in, and that is, a State of perfect Freedom to order their Actions, and dispose of their Possessions, and Persons as they think fit, within the bounds of the Law of Nature, without asking leave, or depending upon the Will of any other Man.(17)
Now, this may be the most extreme liberal statements ever published by a great philosopher. Translated from his own rather abstract terminology, Locke is saying: How we make and dispose of our money, and under what conditions; where we settle and live; what clothes we wear; what information we receive or impart, how and with whom we associate, what things we eat, or drink, or inhale, or otherwise ingest – these, within the limits set by the equal rights of others, are matters solely for us to decide.(18)
While his own model of the best government bears a strong and perhaps unnecessary resemblance to an idealised English Constitution of the seventeenth century, Locke is clear that the main, if not the sole, function of government is the protection of life and property. If it goes substantially beyond that function, only on the grounds of convenience can an objection be raised to its remodelling or overthrow.(19)
Yet, for all he may appeal to us, Locke neither conquered the English mind of his day, nor can be taken as spokesman for its liberalism. During the seventeenth and eighteenth centuries, “the rights of Englishmen” was a phrase as much on the lips of politicians as “democracy” is in the twentieth. It pleased the public. But, then as now, there was a difference between lip-service and genuine belief. Nor among those who did believe was there much reason or desire to expand the phrase until it was co-extensive with Locke’s “State of perfect Freedom“.
For the most part, the political thinkers of the seventeenth century defined liberty in a far more restricted sense than it can be found in the pages of John Locke. We see this in the writings of men like Coke, Davies, Selden, Cotton, Prynne, Pym, Eliot, Hampden, Whitelocke, and Glanvil – all of them lawyers or students of the English Common Law. To them, freedom meant the enjoyment of certain rights inherited from the past. They believed, or maintained, that the English Constitution had continued exactly the same in every age since “time immemorial”. Except for a cycle of decay and restoration, nothing was claimed ever to have changed. Immense industry went into the job of proving that every technicality of pleading or of the law of real property known to the courts of James I had descended unchanged from the very beginning of English history – a beginning that the lawyers were unwilling to date.(20) Torture and Ship Money had been illegal in the reign of Henry II. Edward the Confessor had governed with the advice of a Parliament summoned in the usual way. In the legal submissions made during the Case of Ship Money – R v Hampden (1637) – precedents were advanced, and seriously examined, from the reign of King Egbert (827-39).
Some appeal was made to natural or Divine law. But the main grounds of defence were historical. Indeed, they were considered its best grounds; and the lawyers defended them with fanatical zeal. For there was no understanding of prescription as we find it in the writings of Hume and Burke – that long possession should be seen as conferring title, regardless of origins. There are flashes of the later doctrine in the writings of Coke and Davies(21); and a line of descent between all these writers can be drawn through Sir Matthew Hale in the late seventeenth century.(22) But in the early Stuart period, the Constitution was defended on the grounds that it was both immemorial and unchanging. And that is how it had to be. For without a full concept of prescription, the common lawyers accepted that if the Constitution could be shown not to be both immemorial and unchanging, it would be stripped of its legitimacy. They took it as self-evident that a right granted, however anciently, was revokable by its grantor or by his representative.
In particular, they allowed that if William I had governed by right of conquest, then Parliament and the Common Law must have derived from some later royal gift or consent; and that, this being so, neither could have any security in the present. It would be open to Charles I to change or even abolish them at his pleasure. Men grew very frightened when they contemplated the Norman Conquest; and a continuing thread in English thought right into the eighteenth century was the attempt to show that William had ruled not a conqueror, but as the lawful successor of Edmund the Confessor who had just happened to find it necessary to assert his right of succession by force of arms.(23)
This is a bizarre doctrine, and it is hard now to see how any intelligent person could have accepted it. It was also a doctrine that had only emerged to dominate legal thought in the recent past. Not only was the early Tudor period one of quite radical legislative activism – the Crown and Parliament both exercising their right to make changes in the law – but there had then also been a pronounced sense of the Common Law as just a local manifestation of a universal law. Men who had lived through the growth of Royal Councils such as the Court of Star Chamber, staffed by men schooled in the Roman Law, or had seen the Succession repeatedly changed by Act of Parliament and whole churches established and disestablished, could have little sense of immemorial custom. It was only with the political stability and the isolation of English thought that followed the Elizabethan Settlement, that the Common Law began to regain the primacy it had enjoyed in the middle ages. The common lawyers of the early Stuart period were able to advance their claims of rights inherited from the distant past only by forgetting a quite different state of affairs that had existed before the later years of Elizabeth.
Nevertheless, though bizarre and novel, the doctrine was undeniably useful. More by luck than intention, the English people had emerged into the modern period with a Constitution relatively untainted by despotism. Throughout Western Europe in the sixteenth century, the requirements of national defence or aggrandisement had raised up large standing armies under royal control. These had allowed kings to beat down the constitutional checks and balances that had previously been common across the whole region. The Kings of France and Spain had become absolute monarchs, able to tax and order their realms more or less as they pleased.
Only in England had this pressure been absent. Because of its island status, there had been no need of a standing army, and thus no occasion for a fundamental unbalancing of the Constitution. Indeed, the inflation of prices that had accompanied the flood of silver into Europe from the Spanish settlements in South America had even weakened the traditional powers of the Crown. A King was expected to “live on his own” – that is, to pay the normal expenses of government from the customary rents of his estates plus the proceeds of a few ad valorem duties granted at the beginning of each reign. With the real proceeds of these revenues in decline, Elizabeth was forced throughout her long reign to an extreme economy that allowed no army whatever in peace, and that was eased in times of emergency only by approaches to Parliament, which had the exclusive right to grant taxes. She might have used her popularity to coax more money out of Parliament, but this would have meant allowing it a share of government that no Monarch until William III could be brought to accept.
Yet, by the time James I succeeded to the throne in 1603, various doctrines of divine right and unfettered sovereignty had made their way into English thought. They can be found in the writings of the age.(24) All ideas have consequences, and those that exalt small and already powerful groups have a tendency to produce the largest consequences. We only need look at the present campaign against the motor car to see this. Most British people have either a car or access to one. They enjoy the pleasure and convenience of motoring. Yet they do no more than grumble at the rising burden of taxes and other restrictions on motoring. They do this because the debate over the motor car has been won by its enemies. So it might have been with the argument over English liberty in the seventeenth century. A clear vision on one side of a Monarchy, exalted and served by a bureaucracy and able to try all the approaches to national greatness then fashionable; and on the other an unfocussed sense of unease as the loss of an ancient but derided Constitution – there would have been no contest. The doctrines then coming in from Europe would have been used to justify the introduction into England of a royal despotism that in Europe they had been devised to justify after the event. To keep these doctrines from having any mark on the Constitution, it was necessary to raise up some countervailing doctrine of limitation.
The rediscovery of the Common Law served this purpose. It allowed a defence of the declared rights of individuals and corporations and the powers of the House of Commons against royal encroachments. It stressed that government should act only by due process. It was even quietly expansive, since many of the rights claimed as ancient were actually modern or not yet existent. See, for example, the arguments during the reigns of James I and Charles I over the rights of the House of Commons: for all the antiquarian zeal of the Parliamentary leaders, much of what they were claiming had never been admitted in earlier times, let alone granted and enjoyed.
Yet the conventional test of whether a law was good or bad was not in itself liberal. A modern law could be judged on how well it harmonised with the others; and this in practice applied a liberal test to many Stuart measures. But an old law could be at best only reinterpreted. Otherwise, no matter how illiberal, it was regarded by the defenders of freedom as no less valid than Magna Carta.
All this suited the more radical dissenters, who joined their zeal for godliness to the defence of the Ancient Constitution. It allowed quite as much freedom as most of them wanted. Their complaint against the House of Stuart was that it maintained the supremacy of a Church that they abhorred, and that it persecuted them. With very few exceptions, this did not make them into secular libertarians.(25) Their own settlements in North America were in many respects as intolerant and conformist as Stuart England. Religious freedom meant for them the right to belong to an approved Dissenting church and to no other. The freedom of these churches from state control meant their right to enter politics and have their own views enacted into law. They hated Roman Catholics, and Anglicans, and pleasure. Their hatred of this last can hardly be conceived. Every pleasure, no matter how modest, that was not immediately joined with the contemplation of God and His Awful Day of Judgment, was to them abominable. They “hated bearbaiting” says Macaulay,
not because it gave pain to the bear, but because it gave pleasure to the spectators.(26)
For the truth of this epigram, they stand condemned by their own statements. “The more you please yourselves and the world” said one preacher to his flock, “the further you are from pleasing God…. Amity to ourselves is enmity to God.” “Pleasures are most carefully to be auoided” wrote another: “because they both harme and deceiue.” “Christ did never laugh on earth that we read of” wrote yet another, “but he wept.”(27)
During their brief triumph, after 1649, they set about enacting their prejudices into law. They harried the Catholics and Anglicans. They closed the theatres. They cut down the Maypoles and abolished Christmas. They made all sex outside marriage a misdemeanour on first offence: on second offence, it was made a felony, punishable by death. To be sure, many dissenters became Lockeans; but the main dissenting creeds were anything but Lockean.
This being said, the Dissenters did a service to the Constitution by attaching their own cause to it. They added a religious sanction to the defence of Common Law and Constitution in an age when religion wan an immensely powerful force in politics, and when Common Law and Constitution needed all the strengthening available. For them, royal despotism and the Catholic faith were one and the same. And in spite of all they did when they had the power to brush Parliament aside, it was their enthusiasm against the Stuarts that ensured the victory of Parliament in the Civil War.
But regardless of how badly damaged the Royalist cause emerged from the Civil War, the theoretical underpinnings of the Common Law argument were also damaged. Its defects had been sharply revealed. The central decades of the 17th century had seen all the threads of legal continuity snapped. The men who saw the Monarchy restored in 1660, had lived through two civil wars, a regicide, two military coups and any number of written constitutions, some adopted, others drafted and argued over. To them, inherited custom in itself no longer seemed to bind. In spite of its logical absurdity, the Common Law doctrine had been psychologically sufficient in an age when the institutions of state really did seem to have descended from time immemorial. It could not satisfy so well in an age when these institutions had been swept away and replaced by others, only eventually – and largely by surprise – to be restored.
Of course, time can smooth away any number of shocks; and a generation of stability after 1660 might have allowed the psychological threads to reconnect to time out of mind, just as they had a century earlier. But there was the further unsettling influence of the royalist antiquarians and the absolutist philosophers. The first were showing how the Constitution had not remained fixed, but had evolved over hundreds of years. The second were actually stepping outside the debate over the Constitution to pour scorn on all sides.
It was Sir Henry Spellman, writing under Charles I, who knocked the first real holes in the Common Law argument. Looking through the same records as the lawyers, but reading the Latin in its plain meaning rather than those attached by the lawyers, he discovered the feudal innovations of William the Conqueror, and was able to trace in outline the gradual softening of these over the centuries into the freeholding Constitution of the seventeenth century. Spellman remained to some extent fixed within the Common Law tradition – even repeating the insistence that William had not been a conqueror.(28) But he was followed by other antiquarians, culminating in Robert Brady, whose writings of the 1680s were a deadly response to the Whigs in their use of the Common Law against the despotic ambitions of Charles II and his brother James. Supported by masses of evidence, most of it true, these accounts undermined the notion of immemorial custom, and therefore cleared the way for an assertion of royal power. For if Parliament was younger than the Monarchy, everyone agreed, it was plainly subordinate to it in every respect.
About the only effective reply to this line of reasoning came from men like Thomas Hobbes. But they posed an even more deadly threat to the Common Law doctrine. What relevance, asked Hobbes, could the past have to the present, except as explanation? In every state, he argued, there must necessarily be a sovereign power, and this must have the full power to order things as it found convenient. It may be convenient to order a state in line with its historical experience. But this is not to posit any limitations on the power of the sovereign, whose will cannot be resisted. “The sovereign of a commonwealth” he argues,
be it an assembly or one man, is not subject to the civil laws. For having power to make and repeal laws, he may when he pleaseth free himself from that subjection, by repealing those laws that trouble him and making new; and consequently he was free before. For he is free, that can be free when he will: nor is it possible for any person to be bound by himself; because he that can bind, can release; and therefore he that is bound to himself only, is not bound.(29)
Law, according to this way of thinking, is nothing but the expressed will of a sovereign law-giver. It overturns the Common Law argument – not by contesting it from within, as the Royalist antiquarians sought to do, but simply by denying it any logical force. For “[t]he opinion
that any monarch receiveth his power by covenant, that is to say, on condition, proceedeth from want of understanding this easy truth, that covenants being but words and breath, have no force to oblige, contain, constrain or protect any man, but what it has from the public sword.(30)
In the generation after 1660, the force of Hobbes’ thought was blunted by its novelty. Very few Englishmen could understand what he was saying. Moreover, his argument took people in directions that hardly anyone wished to go. The debate of the age was not the Common Law against divine right monarchy, but an argument within the Common Law tradition. Even the Royalists who had followed Charles II into exile accepted the immemorial nature of the English Constitution, and disagreed with the Parliamentarians only over its interpretation.(31) They were not inclined to take up a line of reasoning that cut their opponents to pieces, but also meant accepting views no less deadly to their own, and that sanctioned a government vastly more absolute than anything they themselves wanted.
Far more dangerous were the works of Sir Robert Filmer. He also believed in absolute sovereignty but hedged it – often in ways that disguised it – with arguments about the origins of Parliament and a mass of Scriptural quotation.(32) Read today, his writings cannot but strike as some of the most foolish things ever written in English. Published during the Exclusion Crisis of 1679-83, they had a tremendous effect. They gave heart to the radical Tory fringe who stood against every attempt to prevent James Duke of York from succeeding his brother Charles II, or even to limit his powers if he was to succeed. They caused explosions of outrage among the Whigs, cutting as they did through nearly a century of consensus over the Common Law.
The opponents of Charles II and James II faced ideological problems that the opponents of James I and Charles I had never had to consider. They were forced to choose. They could continue insisting, against all the evidence, that there had been no Norman Conquest; or they could find another support. Those who looked for another drew on various traditions – on the Greek and Roman stoics, on the mediaeval schoolmen, on the Jesuit controversialists. The classic expression of the resulting synthesis can be found in Locke’s Second Treatise.
But, as said, this was not a typical expression. It may be one of the few works of political philosophy to have been continuously read since the seventeenth century, but it was surely among the least understood and appreciated in its own day. Then, it was the First Treatise accompanying it that made Locke’s reputation as a writer on politics. Hardly read at all now, this is a long and elaborate refutation of Filmer’s Patriarcha, and is argued on Filmer’s own grounds. The oddly abstract speculations that followed it were out of sympathy with the age – even after the arguments from the immemorial and unchanging nature of the Constitution had been thoroughly unsettled. The pure theory of natural liberty was just as unsuited to the age as was the pure theory of sovereignty. It was too geometrical. It went too far with its uncompromising statement of rights that were not always recognised by the existing Constitution. It made scarcely more sense to the generation of Somers and Newton as would an explanation of quantum mechanics.
More congenial were the Discourses Concerning Government of Algernon Sidney, published in 1698. Another attack on Filmer, these cover roughly the same ground as Locke, but every point is supported at least in part by the usual appeals to history and Scripture. There are long discussions of the Norman Conquest – denying it happened, denying that William made himself master of the soil, denying that the Stuart Kings had inherited any powers beyond those consistent with a limited parliamentary constitution.(33)
Sidney differs also from Locke in his more restrictive view of freedom. Locke is a radical individualist. His argument begins with an assertion of the individual’s inborn, inalienable rights to life, liberty and property. All social arrangements are merely contrivances for maintaining these rights and for making their possession more enjoyable. For Sidney, the community is at least as important. He follows the ancients into the trap of confusing liberty with national independence. Thus, he heaps the most lavish praise on Sparta and Republican Rome, neither of which could be considered free countries in the Lockean sense.(34) This was certain to please anyone who wanted another Puritan Commonwealth.
More importantly, he fails to conceive how freedom limited only by the equal rights of others can be combined with order and political stability. He is like those modern conservatives, who stand so nearly on the border with liberalism, and make such nearly liberal statements, that to a casual glance they can pass as other than they really are. Freedom is glorious, he proclaims – but requires moral supervision. For, without this, people will fall into vice; and private actions have public consequences. Therefore,
those who uphold popular governments, look upon vice and indigence as mischiefs that naturally increase each other, and equally tend to the ruin of the state. When men are by vice brought into want, they are ready for mischief: there is no villainy that men of profligate lives, lost reputation, and desperate fortunes will not undertake. Popular equality is an enemy to these; and they who would preserve it must preserve integrity of manners, sobriety, and an honest contentedness with what the law allows.(35)
Not surprisingly, the Glorious Revolution of 1688 produced few radical changes on the surface. Alone of all the great revolutions, indeed, it was carried through by men who desired at all costs to deny that it was a revolution. Mindful of how their fathers had acted in 1641, they avoided both violence and grand gestures. Hardly anyone in the Convention called by William was anything but a firm believer in the Common Law and ancient Constitution. The only question debated was in what sense that Constitution was to be understood after four years of James II. It is almost surprising that the Resolution emerging from the debate contains even one clause that might be regarded as Lockean. It was resolved that James,
having endeavoured to subvert the constitution of this kingdom by breaking the original contract between King and People, and by the advice of Jesuits and other wicked persons having violated the fundamental laws, and having withdrawn himself out of the kingdom, has abdicated the government, and that the throne is thereby vacant.
This was a deliberately inclusive formula, uniting every element in the coalition that had assembled round William at Hungerford. But the main emphasis is on subverting the Constitution and violating the fundamental laws. These concepts went unquestioned in the debate. It was the words “original contract” that caused the most trouble. Gilbert Burnet tells how some of the Lords in the upper house of the Convention asked where this contract was kept, or how it might be come at. They were given a vague answer about how every legal government implied a contract of some kind; and it seems to have been understood that the words were not intended to have any meaning beyond being a synonym for ancient Constitution.(36)
Somewhere in his writings, Marx calls the Glorious Revolution a “palace coup“. Somewhere else, Disraeli dismisses it as having done no more than introduce England to “French wars, Venetian politics and Dutch finance”. Recent historians have dropped the adjective, and have taken to surrounding the noun with quotation marks. Undeniably, it was carried through not to establish the inalienable rights of man to life, liberty and property, but to preserve the inherited rights of Englishmen. Yet, looking past the intellectual timidity of the anti-Stuart coalition that finally triumphed in 1688, what they achieved was both revolutionary and, in liberal terms, glorious. They may have intended to achieve less than they did. But what they did achieve has justly earned them the veneration of all real friends of humanity.Three: The Administrative Vacuum of the Eighteenth Century
Though never on the Continental scale, the Tudor and early Stuart monarchs had developed a centralised and fairly efficient administration. The counties might be ruled by the Justices of the Peace, and the towns by the municipal corporations – and both therefore by the leading local families. But these were in turn closely supervised by the Privy Council and the Councils of Wales and of the North. The Church was supervised by the High Commission, and the legal system by the Court of Star Chamber. Through these bodies, a mass of moral and economic regulation was imposed. Religious dissent was punished. Juries were intimidated. Monopolies and wage and price controls were enforced.
Then, in 1641, excepting the Privy Council, which was greatly weakened, the whole central administration was either abolished outright or made impotent. It had been alien to the Constitution. It had been used too extensively to usurp the authority of Parliament and the Common Law. It was not reconstituted after 1660, and the devolution of most government into local hands was quietly accepted. From then on, the only means of government were according to the Common Law or by Acts of Parliament made under the influence of the Common Law and interpreted and enforced by the courts of Common Law.
The result of this was a severe limitation of governmental power. It is worth emphasising that this was not brought about by explicit limitations on the power of government to seek specific ends, as happened in America. All through the eighteenth century, minority groups were persecuted by the authorities. Catholics and Dissenters were denied a range of civil and political rights. Men who engaged in homosexual acts were hunted down more ferociously than in any of the absolutist monarchies of Europe – even if with less venomous persistence and fewer prohibitory laws than was later the case in England.(37) The Common Law has never sought to prevent any stated end of government. It is the procedure of Common Law, with its requirement of due process and consistency between cases, that makes the ends to certain means impossible. There is no rule of Common Law that prevents a government from trying to regulate prices. It simply prevents the sort of administrative supervision and discretion without which they cannot be regulated. It was because of these limitations that the Tudor Monarchs had bypassed the Common Law and relied instead on their Councils and Commissions. Without these, administration in the European sense was abolished.
There was, for example, no concept of administrative law. In France, the object of royal policy all through this period had been to release administration from the control of law. The ordinary courts had been corrupted by the fiscal needs of the State. Judicial offices were created and sold to the highest bidder. The buyers joined a large class of irremovable office holders. Ignorant sometimes of the law, but never of their right to the fees from which their income derived, they made justice both expensive and uncertain. Yet, despite their corruption, these courts were still feared by the Government. They might apply the fixed rules of law, and might punish officials judged in breach of the law. So, from the Controller General down to the lowest contractor on the roads, public servants were granted immunity from prosecution in the normal courts. Cases were heard instead by special administrative tribunals. The reason why was put very plainly by a Minister: “a state official indicted before an ordinary court would certainly find the judges prejudiced against him; and this would be to undermine the royal authority”.(38) The rules of justice were partially or altogether suspended whenever “the public good” was invoked.
Administrative law was the instrument by which France was made into an absolute centralised despotism – a despotism tempered only by inefficiency and corruption. The Government took property for public use without compensation. It censored the press. It imposed punishments without the shadow of due process. A lettre de cachet – that is, a signed letter from the Royal Council – was enough to have someone imprisoned or exiled for as long as directed, and without any legal redress. These were obviously used to put down dissidence – as when, in 1749, a mild criticism of state policy earned the poet Désforges three years in an iron cage. They were also the private weapon of anyone able to persuade or bribe a Minister into issuing one.
In England, punishments could only be imposed by the Common Law courts. This ensured that the administrative authority of government was continually checked in ways that Europeans found astonishing.
Take revenue collection. Even the imposition of Ship Money in the time of Charles I had been subject to challenge before the courts; and it was only by a majority of a packed Bench that this tax had been judged legal. The more regular taxes allowed by Parliament after 1660 were continually avoided by legal challenges and creative uses of existing law. In the 1660s, a Derbyshire innkeeper named Michael Heathcot found a way round the beer excise by serving beer free to his guests who paid for the untaxed food, lodging and fodder that he provided. The only response available to the authorities was to procure a change in the relevant Act of Parliament. In Monmouthshire, innkeepers simply shut their doors in the faces of the excisemen, who had no legal power to break doors open.(39) In France, tax gatherers were little more restrained than a gang of thieves. In England, taxes were effectively limited to things like land and windows and foreign trade. The first had the advantage of being assessable with minimum intrusion; and the few disputes that arose over assessment and collection could be reliably left to the courts. The second were paid either by foreigners or a small minority of the population.
The one serious attempt to expand the tax base before the end of the eighteenth century was Walpole’s Excise Bill of 1733. This would have achieved a number of desirable ends. It would have checked smuggling, and increased the carrying trade of England, and made London into a free port, and have allowed a reduction or repeal of the land tax. These were desirable except for the means. As proposed, the measure would have raised up a small army of officials with powers of inspection over shops and warehouses, and even private dwellings – powers that would have necessarily have been couched in terms alien to the Common Law. The proposal was shouted down by virtually the whole country, and was quickly abandoned.(40)
Or take the suppression of political dissent. The only means allowed for this were the laws against high treason and seditious libel. On paper, these were ferocious laws; and they could be made into instruments of great cruelty and injustice in times of panic – as happened between 1679 and 1688, and again in the 1790s. For the most part, however, they were very limited instruments. Torture had always been illegal under the Common Law, and no forced confession could be received by the courts. The Habeas Corpus Act 1679 strengthened the old guarantees against arbitrary arrest and detention.
Above all, the political laws could be enforced only in courts where a Jury was the final judge of all matters of fact. After Bushell’s Case (1679), the right was unquestioned of Jurymen to find whatever verdict their conscience directed, even if against all the prosecution evidence. This was an effective check on at least unpopular oppressions. It saved Lord George Gordon in 1780, and has continued to save large numbers of lesser victims to the present day. Added to this, Judges were given security of tenure during good behaviour after the Revolution; and the purges for political unsoundness that disgraced the reigns of Charles I and James II were not repeated. Thereafter, a Judge might be friendly to the authorities, and might try leading Juries into favourable verdicts – but there was no punishment available if he chose to enforce the law as he conceived it.
And as the eighteenth century advanced, such administrative discretion as had survived after 1641 was limited still further. The whole concept of administration was narrowed to the fulfilment of duties imposed by the Common Law or Act of Parliament. Any Minister or official who exceeded his legal authority could – and sometimes did – have to stand in court like any other trespasser. In the most famous case arising between an individual and the authorities, Entick, a printer, sued two officials in 1764 for having broken into his house and seized his papers. The officials pleaded a warrant signed by one of the Secretaries of State. This was based on a loose custom that had survived the lapse of the Licensing Act in 1695 – that is, the press censorship law with which the later Stuarts had tried to control public opinion. The Act had created wide powers of search and seizure of documents. The warrant used against Entick was a vague document that specified neither the place to be searched nor the things expected to be found there. It was a “general warrant” – or, in modern terms, it sanctioned a “fishing expedition”. It was hoped that a search of Entick’s papers would reveal evidence of on which could be based a prosecution for seditious libel.
These powers of search and seizure had survived their creating Act largely because they were hardly ever used after 1715, and so no one saw fit to question their survival. The early years of George III, however, saw a revival of political dissent; and the authorities looked round for means of suppression. The attempted prosecution of Entick was part of a general scheme that had been inspired by the reaction to the pamphleteering of John Wilkes. The problem for the Government was that it had to face absolutely independent courts to justify not merely its use of general warrants, but their very existence.
Entick v Carrington turned on a simple point. In pleading the Secretary’s warrant, the officials were relying on the Protection of Constables Act 1750, which barred prosecutions for search and entry under warrant when no evidence of illegalities was found. Entick’s lawyers claimed that the Act did not apply because the Secretary’s warrant was itself illegal. There was neither Common Law nor statutory authority for an individual Privy Councillor to act as a Magistrate except in cases of high treason. Nor, supposing such a jurisdiction to exist, was there any authority for warrants of this type.
Passing judgment in the case, Lord Chief Justice Camden of the Common Pleas agreed, declaring the warrant unlawful. He went further. In their alternative submissions – in case they lost on the strict legality of the warrant – the Crown lawyers had argued that public policy required a certain arbitrary discretion in crimes affecting the stability of government. He rejected this argument, saying:
With respect to the argument of state necessity, or a distinction that has been aimed at between state offences and others, the common law does not understand that kind of reasoning, nor do our books take notice of any such distinctions.(41)
By this judgment, Camden struck down the main remnants of a power that existed unquestioned at the time in every other civilised country, and that exists again unquestioned in both Britain and America. It was the classic statement of a view that had prevailed with increasing force since the beginning of the traditionalist opposition to royalist centralism in the days of James I – that it was the duty of officials not to do the bidding of government, but to obey the law. In Entick v Carrington, David Hume’s comment on the Revolution Settlement finds its most concrete expression:
No government, at that time, appeared in the world, nor is perhaps to be found in the records of any history, which subsisted without the mixture of some arbitrary authority, committed to some magistrate; and it might reasonably, beforehand, appear doubtful, whether human society could ever arrive at that state of perfection, as to support itself with no other control, than the general and rigid maxims of law and equity. But the parliament justly thought, that the King was too eminent a magistrate to be trusted with discretionary power, which he might too easily turn to the destruction of liberty. And in the event, it has been found, that, though some inconveniences arise from the maxim of adhering strictly to law, yet the advantages so much overbalance them, as should render the English forever grateful to the memory of their ancestors, who, after repeated contests, at last established that noble principle(42)
In general, whether local or national, the tendency of government was to atrophy. Even had anything been desired of it, what remained of the central administration was too modest and too corrupt to interfere. Funds were embezzled or unaccounted for during years on end. An actual civil service barely existed. The two Secretaries of State, who directed most Government business, had a total working staff, including caretakers, of about two dozen. As for the local justices and corporations, with the supervisory Councils abolished, these could govern as much or as little as they pleased. Since they had to raise their own funds, they generally preferred the latter. Without express repeal, much of the older regulatory legislation – even what needed no administrative discretion to enforce, fell quietly into desuetude.(43)
Now, in looking at eighteenth century England, we see a state of affairs quite unlike any others that have existed anywhere else in the world, before or since. The anti-Stuart reaction in the previous century was unusual in its opposition to the whole trend of Continental thought; but its success can be explained by virtue of the wild passions aroused in the debates of the age. Obviously, the stifling of administrative law had been welcomed by the local élites into whose hands the remaining powers of the State was passed. Just as obviously, the final settlement made in the Glorious Revolution had been accepted by the commercial and noble classes as a whole. Those who had not minded the despotism of Charles I had suffered under that of Cromwell. Both Whigs and Tories inherited a fear of centralised power from their fathers; and this was renewed by the impartial despotism of James II. But, during the 18th century, while the relevant interests continued to benefit, the practical reasons to fear centralisation diminished.
We should, then, have expected to see a renewed impulse towards centralised government. The arguments used by Joseph Chamberlain in the late nineteenth century should have been heard in the eighteenth. Big government had been a bad thing under the Stuarts, the argument might have gone, because it was then the instrument of Kings who wanted to abolish the ancient Constitution. They had all been hostile to Parliament and the Common Law; and one of them had tried to undo the Reformation in England, and had briefly undone it in Ireland. It had therefore been right to resist them, and right to accept a conception of government that barred many desirable ends from being achieved. But now the Revolution was complete, and power rested in the hands of a Parliament chosen by the nation and a King whose title had no higher source than Act of Parliament, why keep up the old suspicions? Why not forget some of them for the sake of convenience? With the great contest over, the passions used to exalt the Common Law might have subsided, and the more usual contest recommenced – in which the special interests wheedle and push for influence, resisted only by a general prejudice in favour of liberty.
But this did not happen. All through the eighteenth century, the passions that had inspired the Revolution Settlement were visibly subsiding, but the Settlement itself persisted – and, as said above, even continued shedding the despotic elements that had survived the Revolution. Men whose grandfathers had been too young to live under James II, let alone Charles I or Cromwell, retained prejudices against central and discretionary power that were not only irrelevant to their immediate interests, but often hostile to them. Even landowners, whose taxes would at least have fallen, were prominent in opposing Walpole’s Excise Bill. Even householders, whose lives and property might have been better secured, opposed the slightest move towards a police force(44); and, as Jurymen, they showed no mercy to officers of the law indicted for going beyond their legal powers in quelling riots and other disturbances.
The Revolution Settlement was preserved by the dominant legal and political philosophy of the age. This set the agenda of debate. It set the criteria by which people conceived their interests. Though not the same as the one that had justified resistance to the early Stuarts, this philosophical outlook was a plain development of it. The challenges of both antiquarians and naturalist philosophy had been faced and overcome.