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⁾

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 œ846.1m in 1836 to œ784.2m 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⁾

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⁾

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⁾

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⁾

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⁾

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⁾

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⁾

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⁾

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.

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⁾

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⁾

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. The enlightened urbanity of eighteenth century thinking removed further rough edges from it. What emerged by about 1760 was a clear and persuasive set of arguments in favour of maintaining an order of things inherited from the past.

The older fictions abandoned, it was now recognised that the Constitution was the product of a long evolutionary growth of rules and institutions. The Constitution of 1750 was not the same as that of 1550, and still less that of 1350 or 1150. Between each of these dates, innovations had been made. Which were good and which bad had been shown by experience. And innovations would continue to be made in the future, either because needs would arise that were not yet provided for, or because earlier innovations would turn out to be defective.

The Common Law view of the past remained, but in a modified form. It was still maintained that the Constitution was of immemorial origin, having been brought to England by the Angles and Saxons. This no longer meant asserting that Henghist and Horsa had carried with them the full English law of real property as known by Coke. It meant instead that English political culture had always placed high emphasis on the rights to life and liberty and of resistance to despotic power. This emphasis had been seen repeatedly at work throughout English history, shaping the growth of a free Constitution and preserving it against external and internal attack. The growth had been checked by William the Conqueror, but was restarted with new vigour in the national revolt that forced John to sign the Magna Carta. It had been checked again by the relatively despotic Tudors; but it was restarted with overpowering vigour during the Stuart period. In a sense, the Glorious Revolution introduced new principles into English Government - for instance, that Ministers had to be not merely responsible to Parliament, but continually acceptable to it. But it was also a deeply conservative reaffirmation of the ancient liberties of Englishmen.⁽⁴⁵⁾

There was still the question, as in the previous century, of how to maintain those liberties and hand them on undiminished to the following generations. The answer now was to develop the flashes of insight in the works of Coke and Davies and Hale into a general theory of social order. How this was done can be stated in a series of connected propositions:

First, human beings are not "rational" in the sense claimed by the philosophers of the European Enlightenment. We exist within frameworks of rules and expectations that are always complex and are usually well-suited to some standard of convenience, but which we have not ourselves made, and which were never in the past consciously designed or discussed, and which are mostly not even fully understood. Instead, these frameworks are the product of a social evolution analogous to the natural evolution that Darwin later discovered to underlie the variety of animal forms and their adaptation to environment.

An act is done and it benefits the actor. Sometimes, its benefit will be recognised. If so, it will be repeated by the actor as appropriate and imitated by others. Most often, it will not be recognised as a cause of benefit. If so, it may never be repeated, or it may be repeated and imitated along with much else that is purely incidental or even of contrary value to the benefit. Its adoption may entail the rejection of some other behaviour, or perhaps will need less radical modifications, in order for it to be fitted into an internally consistent body of existing custom. After a while, its origin - even if ever known - will be forgotten; and future generations will inherit another of the customs or institutions by which they will unthinkingly guide most of their behaviour.

In some cases, an institution can be explained and given rational justification in a later, more enlightened age than the one in which it emerged - private property, for example, or marriage. But this can happen in only a small number of cases, for much of the information that is available to us for directing our lives cannot be reduced to the status of discussible hypotheses. It will be instead embodied in custom and prejudice, the justification of which must often be obscure.

This view of human understanding is less flattering to human vanity than the rationalist notion of the conscious, designing intelligence. But it is more in accord with the known facts, explaining how people - no matter how learned or ignorant - have access to far more knowledge than they can develop for themselves, or prove by themselves.

Second, the view raise a presumption in favour of whatever is old and established. It may seem on first inspection that some particular law or public custom has no use. But the fact of its survival into the present indicates that it once was, and might still be, useful - or that, even if useless or harmful in isolation, it is necessary for the survival of something that really is useful, or even for the survival of the whole system.

When, therefore, we come to an examine a functioning social order such as our own, the most proper attitude is one of curiosity mingled with reverence. We are not to seize on its apparent faults and reject it in favour of something else spun out of a single head. Nor are we to advocate sweeping reforms simply on the grounds of "modernisation" or some other modish slogan. We must instead try to understand the inner workings of society - to conjecture by what innumerable and infinitesimal stages the present order of things evolved to its present sophistication. This will require us to look even to those habits and institutions that rest on justifications manifestly absurd, asking whether they might not nevertheless serve a useful purpose. Then, and only then, shall we be ready to consider what deliberate changes may be necessary, and how these may best be combined with what already is.

Third, the greatest danger to society in an enlightened age is the very attitude responsible for progress in the arts and sciences. These proceed most smoothly by a continual questioning of existing knowledge - asking if it is most in accord with the known facts, or if there is some other, more economical means of explanation. Applied to matters of social organisation, the scientific method must inevitably raise doubts regarding the wisdom of what is. As said, not everything can be readily justified. Certainly, there are arguments to be put for presuming that customs and institutions contain a hidden rationality. But these will often seem - and occasionally will be - nothing but a sophisticated defence of great social evils for which a complete answer seems within easy reach. And one victory for the forces of radical enlightenment will establish a precedent for other attacks and victories, until the whole social is overthrown in an orgy of apparent reforms.

The danger must be avoided by doing nothing to shake the existing power of custom. One of the mental habits with which the evolution of customs has equipped us is a reverence for whatever is old. It can be found in every primitive society, and is the essential preservative of what little civilisation is possessed by such societies. There is a psychological value in age. Institutions that are old, or that appear to be old, can shelter within a ring of associations that may be powerful enough to restrain all but the mist determined tyrant or democratic mob. Changes there must be, of course. But the best change is to be so cautious and incremental that only those directly affected notice its happening. Even the most radical, sudden change is best achieved so that within only a few years it becomes difficult to tell the old from the new.

All this has so far been expressed in abstract terms. An example may be best to complete the explanation. In giving this, let us avoid the standard ones that can be drawn from the French Revolution at the end of the eighteenth century. Let us look instead at one from a later time and from an alien and now dead civilisation.

In 1911, there was an epidemic of bubonic plague in Manchuria. This was large enough to worry all the usual governments and international organisations - there were fears of a new Black Death - and so much effort was put into containment.

Now, it was soon discovered that the carriers of the fleas which in turn carried the Pasteurella pestis bacillus were marmots, large burrowing rodents who were hunted for their skins. It was also discovered that the nomadic tribesmen who had hunted marmots for centuries were largely unaffected. Mostly affected were the Chinese hunters who had just poured into Manchuria following the collapse of the Manchu dynasty and the lifting of all controls on movement into the region.

The reason for this difference was that the native hunters followed certain customary rules that tended to minimise the risk of infection. They never trapped marmots, but only shot them. If an animal moved sluggishly, it was left alone. if an entire colony showed signs of infection, the hunters would at once pack their tents and move on.

Only in 1894 had the causes of bubonic plague been identified. Before then, its means of transmission had been an absolute mystery. Yet here was a nation of illiterate nomads not only doing as the newest research might have advised them, but doing it by custom since time immemorial. Asked why they acted so, they gave the most bizarre mythological justifications that said nothing about the avoidance of infection. There was no talk of some divinely inspired ancestor whose teachings had avoided the anger of the gods, or whatever. All the evidence pointed to a long history of slight and unconscious adjustments to environment. As with a purely natural selection, there had been small revisions of habits. Those contributing to greater well-being had been copied and passed on to later generations as ritual.

Ignorant of epidemiology, the Chinese hunters were rational enough to sneer at these rituals. Even if at second hand, they enjoyed the fruits of Western science and technology; and the Manchurian natives lacked the philosophical framework to justify customs in general for which they had no specific justifications. The Chinese went about their business of catching their marmots in the most cost-effective manner. They died in their thousands, and sent the bacillus down the new railway lines towards the rest of humanity. It was only because the causes of plague were now understood that the bacillus did not sweep the world again as it repeatedly had in the past.⁽⁴⁶⁾

This whole line of thinking finds its most perfect expression in Burke's Reflections on the French Revolution of 1790. In place of the poor exposition given above, it might be better simply to quote at length from this marvellous distillation of all social wisdom: written with one great public event in mind, it remains a work of universal significance. But let us instead recall a single passage:

...[I]n this enlightened age I am bold enough to confess that we are generally men of untaught feelings, that, instead of casting away all our old prejudices, we cherish them to a very considerable degree, and, to take more shame to ourselves, we cherish them because they are prejudices; and the longer they have lasted and the more generally they have prevailed, the more we cherish them. We are afraid to put men to live and trade each on his own private stock of reason, because we suspect that this stock in each man is small, and that the individuals would do better to avail themselves of the general bank and capital of nations and of ages. Many of our men of speculation, instead of exploding general prejudices, employ their sagacity to discover the latent wisdom which prevails in them. If they find what they seek, and they seldom fail, they think it more wise to continue the prejudice, with the reason involved, than to cast away the coat of prejudice and to leave nothing but the naked reason; because prejudice, with its reason, has a motive to give action to that reason, and an affection which will give it permanence.⁽⁴⁷⁾

The experience of an abuse from which our own age and country are not exempt may sometimes provoke a generous indignation, and extort the hasty wish of exchanging our elaborate jurisprudence for the simple and summary decrees of a Turkish cadhi. Our calmer reflection will suggest that such forms and delays are necessary to guard the person and property of the citizen; and that the discretion of the judge is the first engine of tyranny; and that the laws of a free people should foresee and determine every question that may probably arise in the exercise of power and the transactions of industry.⁽⁴⁸⁾

Of a constitution so wisely contrived, so strongly raised, and so highly finished, it is hard to speak with that praise, which is justly and severely its due:- the thorough and attentive contemplation of it will furnish its best panegyric.... To sustain, to repair, to beautify this noble pile, is a charge intrusted principally to the nobility, and such gentlemen of the kingdom as are delegated by their country to parliament. The protection of THE LIBERTY OF BRITAIN is a duty which they owe to themselves, who enjoy it; to their ancestors, who transmitted it down; and to their posterity, who will claim at their hands this, the best birthright, and the noblest inheritance of mankind.⁽⁴⁹⁾

By itself, then, English liberalism was too weak or timid to explain all the freedom that was actually enjoyed during the 18th century. Its effect was magnified by the administrative collapse of 1641. This had in turn been brought about, and was in part maintained, by adherence to conservative ideologies that justified only a limited freedom. At first, this strange circumstance was wholly beneficial. Except after a foreign invasion, or some immense public calamity, no other country has come so close to administrative anarchy as England did. The restraints that held the rest of mankind back were broken down; and the way was cleared for the development of free market capitalism.

Four: The Decline and Fall of English Liberty

From here, we move into the nineteenth century - to the dawn of the age which Reade was to celebrate as one of almost perfect liberalism. The case in favour of his claim has already been put, and is a persuasive one; and it must be kept in mind throughout all that is now to be said. It cannot be denied that liberal ideas came to dominate public thought and policy in Victorian England to a degree unmatched before or since. It must ever be for liberals what Periclean Athens is for Hellenists, or what the thirteenth century is for Catholics - as the fullest embodiment of an ideal, and as the criterion by which all other ages are to be judged. But, rightly examined, the age is also one of liberal decay. There is no contradiction. A house may appear in its fullest order and beauty even as its foundations are crumbling. In the same way, Victorian liberalism, beneath its fine exterior, was crumbling.

And it was crumbling throughout the century. When A.V. Dicey took 1870 as the date of transition between liberalism and collectivism, he was mistaking symptoms for causes.⁽⁵¹⁾ All that happened around 1870 was that the subsidence cracks began to show unmistakably through the stucco. The whole century, not just its end, was an age of liberal decay. For its beginnings, we must go another 80 years back from 1870, to 1789. This was a year notable for two great events. It was the year in which the French Ancien Régime collapsed under the weight of its own corruption. And it was the year in which Jeremy Bentham published his Introduction to the Principles of Morals and Legislation.

This was not intended to be an illiberal work. Nor has it usually been regarded as one. Bentham states three principles. First, legislation is a science. Second, its purpose is to allow "the greatest happiness of the greatest number". Third, since individuals are the best judges of what can make them happy, legislation should clear away all those barriers to free action not required to protect the equal freedom of others. Applying these principles to English law and government, he denounced the ancient Constitution as nothing but a fraud.

Where Gibbon saw necessity and Blackstone wise contrivance, Bentham saw only a chaotic mess. English law, he said, had begun as the customs of an illiterate Germanic tribe, and then been added to and adapted in succeeding ages of feudalism and religious frenzy. Over the centuries, almost nothing had been abolished, and the additions had nearly all been made by adapting existing forms and names to new purposes. The parts were often ingenious, but the whole was best regarded less as a "noble pile" than as a labyrinth of fictions in which the smallest conveyance or action required an army of expensive lawyers. As John Stuart Mill wrote half a century later in summarising the Benthamite critique,

the law came to be like the costume of a full-grown man who had never put off the clothes made for him when he first went to school. Band after band had burst, and, as the rent widened, then, without removing anything except what might drop off of itself, the hole was darned, or patches of fresh law were brought from the nearest shop and stuck on.⁽⁵²⁾

In place of this jumble, he proposed a comprehensive remodelling of the law. The rubbish of past ages was to be swept aside and replaced with a set of clear rational codes of law, enforced by courts with procedures so easy to understand that justice would be swift, and comprehensible and affordable to all.

With this went similar arguments for administrative reform. The great Councils had been swept away in 1641, and the functions of administration had withered thereafter. But hardly a single office had been abolished. In place of anything worth calling a civil service, the Government at the end of the eighteenth century had an immense mass of patronage to distribute among its servants and supporters. Most of these offices had names stretching back to Tudor or even mediaeval times. Every area of government was filled with sinecures. The more lucrative were taken by the Ministers and Judges to swell their official salaries, or given to their friends and relatives to cement the bonds of obligation on which English politics then rested. Very few had actual duties attached to them. Some - such as the Tellership of the Exchequer - combined an absence of duties with salaries of more than œ20,000 (which translates into about œ1 million in 1990s terms). A few were even hereditary.

For personalities who filled these offices in the early nineteenth century, look at Lord Auckland, who received œ1,400 a year as Vendue-Master at Demerara, a place he had never visited, and œ1,400 as Auditor at Greenwich Hospital, without the least competence to audit an account, nor any obligation to try.⁽⁵³⁾ Or look at the Duke of St Albans, who was Hereditary Grand Falconer and Hereditary Registrar of the Court of Chancery. Without touching a single falcon or registering a single suit, he took an annual salary of œ2,000.⁽⁵⁴⁾ Or look at the hundreds of aristocratic "wine-tasters", "sweepers", "store-keepers", "harbour-masters", "packers", and "tide-waiters" who dirtied their hands only to the extent of going once every quarter to the relevant office in Whitehall to sign their names in a ledger and receive the latest payment of their salary.

There were thousands more of less valuable places. These were handed out as incentives to friendly journalists and organisers of election campaigns, or as rewards to favoured poets and painters, or as consolations to well-connected unfortunates.

Such duties as did attach to these offices were performed by clerks employed at a fraction of the salaries attached. Because the pay and prospects were so limited, these clerks were usually of little ability and often corrupt. At best, they were fitted for nothing beyond a drudging routine. At worst, their follies and peculations compromised the effectiveness of the armed forces. Anyone who reads their dispatches must half suspect that Nelson and Wellington fought their battles largely to relax from their much harder war to get their men paid on time and to get munitions that might be usable against the enemy.

The cost of this bizarre substitute for a civil service cannot be accurately known, but must have consumed a noticeable share of the British national income.

Then there was Parliamentary reform. The electoral system had been settled centuries before. The counties were each to send two Members, elected by the 40 shilling freeholders. Certain boroughs were each to send two, elected on whatever franchise might evolve locally. Apart from the addition of Scottish and then Irish Members, after the Acts of Union, there had been no big changes since the end of the middle ages, and none whatever since the reign of Charles II. Thus, by the end of the eighteenth century, there were boroughs where no one now lived - or which had even disappeared through coastal erosion - but which still returned their two Members; and there were new cities, like Manchester, growing up without any representation. In those boroughs which still existed, some allowed virtually every adult male to vote; others confined the vote to a closed corporation. There were "pocket boroughs", where Members could be nominated by a landowner, whose tenants would vote as directed; and there were "rotten boroughs", where the few eligible voters could turn every election into an auction for their votes.

Overall, fewer than five per cent of the adult population had the right to vote. It was possible for great shifts in public opinion to bring corresponding changes at a General Election - as in 1784 or 1830. But the bewildering inconsistency of franchises from one constituency to another meant that in ordinary times, the House of Commons only reflected the public mood by accident.

Serious calls for reform had began in the 1770s, during the debate over the status of the American colonies. The Colonists had demanded "no taxation without representation". They were told in answer that much of England had no representation, but was still taxed. This failed to satisfy the colonists, and set their English supporters on an examination of home abuses. At first, they had only wanted a modest redistribution of seats. As ever, Bentham and his followers preferred more radical solutions - abolishing the distinction between counties and boroughs, a redrawing of boundaries to equalise representation, and a standardising of the franchise. For them, indeed, Parliamentary reform was to become the means of achieving their vision of a rational, humane, centralised new order.

It would be wrong to suppose that Benthamism and nineteenth century liberalism were identical. They were not. The "philosophic radicals" - as the more ardent followers of Bentham called themselves - despised the Whigs and the moderates in general for their commitment to the past. These in turn were often flatly opposed to the full agenda of reform, entailing as it would a rejection of the Revolution Settlement. But with his writings on legal and administrative reform, Bentham reached out to a large audience. People whose eyes glazed over at the mention of his Panopticon scheme accepted his critique of actual abuses. It was both reasonable and pragmatic - qualities highly regarded in England. And his followers themselves exercised a wide influence over the public mind: George Grote in history, John Austin in law, Samuel Romilly in law reform, Ricardo in economics, the two Mills in philosophy and psychology and just about everything else; and there were many others. They never dislodged the English habit of thinking of liberty as something inherited, rather than as something granted by a sovereign lawmaker. They certainly never gained so complete an acceptance as the Common Law thinkers had. But they did make the old complacency much harder to maintain. Insensibly, they shifted the foundations of English liberalism from reliance on the ancient Constitution to arguments about the utility of limited government.

The unsettling effect of Benthamism was combined with that of the French Revolution. Like the rush of water from an unblocked drain, the meeting of the National Assembly led to reform after reform. There was religious freedom and freedom of the press. The administrative map was redrawn on rational principles. The system of justice was entirely replaced. The power of the Monarchy and aristocracy was forever broken. Some English observers came to look on the French as having travelled further towards liberty in two years than they had in two centuries. "How much is it the greatest event that ever happened in the world" said Fox on hearing that the Bastille had fallen, "and how much the best". For Richard Price, Louis XIV was now "almost the only lawful king in the world, because the only one who owes his crown to the choice of his people".⁽⁵⁵⁾ For such people, the Glorious Revolution appeared less as a final settlement than as unfinished business.

Without any further cause, it was inevitable that the Revolution Settlement would be challenged after 1789 in ways that the earlier men of speculation had feared and tried to prevent. In the 1790s, however, the whole timidly liberal consensus of the eighteenth century collapsed in England. The Reign of Terror tore English opinion in two. On the one side, there were the radicals. Had these been only Bentham and his middle class followers, it would still have been impossible to overlook their break with the past. But there was also the emergence for the first time in English history of an autonomous working class movement. The minimal demand within this movement was manhood suffrage, to be followed by legal revolution. An extremist minority was even demanding a copying of the French example - the whole way to regicide and collectivist dictatorship.

On the other side, there were the defenders of the established order. These came quickly to associate any talk of reform with revolutionary violence. Instead of concluding that France was showing what happens when a régime resists all change for long periods, and then concedes it all at once out of weakness, they took events there as a warning to stop their own indulgence. Edmund Burke is the standard example of the liberal turned reactionary. In the 1770s, he had supported the American rebels. In the late 1780s, he had made a nuisance of himself to the authorities though his part in the impeachment of Warren Hastings for misgovernment in India. After 1790, he was known - however unjustly it may be seen in a careful reading of his Reflections⁽⁵⁶⁾ - as the supreme philosopher of reaction, his old friends now his bitter enemies, and his old enemies now his adoring friends.⁽⁵⁷⁾

The resulting debate was won by the extreme conservatives. They did not entirely get their way. The press remained free. Juries were often unreliable at returning guilty verdicts in cases of high treason. The Parliamentary opposition functioned unchecked regardless of the country's domestic and foreign crises. But there was a consistent drive to limit the liberties which had been secured in 1688 and widened during the next century. Acts of the period limit the rights of assembly and of speech for the working classes. The Government made furious efforts to suppress public reading rooms, where the working classes would come to read the newspapers and discuss their contents; to sharpen the laws against trade unions; to seek out and punish anyone who published words that might be construed by a Jury as seditious. Letters were opened and read as they went through the Post Office. Spies and entrappers were unleashed on the non-Parliamentary opposition.⁽⁵⁸⁾

When the great revolutionary panic at last subsided, after 1822, the spirit of the Constitution had been entirely altered. Before 1789, its development had been broadly in line with public opinion. By the 1820s, it had fallen behind. In the 1780s, Parliamentary reform had been on the political agenda; and its only real impediment had been how far to go and how much to spend on buying off the vested interests. Even William Pitt the Younger, while Prime Minister, had introduced a Reform Bill. Forty years later, it seemed to many that the Constitution had been captured by a band of diehard reactionaries, who had blocked every reform to the point where only sweeping changes could bring it back into line with public opinion.

Between the extremes of reaction and remodelling lay the moderate reformers. Perhaps the leading spokesman for this point of view was Thomas Babbington Macaulay. Though willing to agree with Bentham on specific matters, he was deeply suspicious of the main Benthamite project. His attacks on James Mill and the demands for manhood suffrage caused serious damage to that project, and helped push Mill's son, John Stuart Mill, into a nervous breakdown.⁽⁵⁹⁾ Looking beyond the Benthamites, he utterly loathed and feared the socialists, calling them the common enemies of mankind.⁽⁶⁰⁾ In every sense, he was a conservative. In literature, he was "the last of the Augustans".⁽⁶¹⁾ As an historian, he saw his task as explaining the achievements of the seventeenth century Whigs to the readers of the nineteenth. In politics, he was no less conservative. He supported Parliamentary reform because he believed that timely compromise would head off the more radical demands. A generation of Benthamite propaganda and Tory reaction had combined to discredit much of the Revolution Settlement as a mass of abuses. By abandoning the less defensible parts of that Settlement, he hoped that its essentials could be preserved. "Reform" he said in Parliament, "that you may preserve...."

[N]ow, while the heart of England is still sound, now, while old feelings and old associations retain a power and a charm which may too soon pass away,... take counsel,... of history, of reason, of the ages which are past, of the signs of this most portentous time.... Save property, divided against itself. Save the multitude, endangered by its own ungovernable passions. Save the aristocracy, endangered by its own unpopular power. Save the greatest, and fairest, and most highly civilised community that ever existed, from calamities which may in a few days sweep away all the rich heritage of so many ages of wisdom and glory.⁽⁶²⁾

During the rest of the century, English law and administration were remodelled on broadly Benthamite lines. The Poor Law was reformed. First the town corporations were replaced, and then the county Magistrates were largely superseded, by local authorities elected by consistent franchises. Substantive and procedural law were both reformed, the first in a series of codifying statutes - the Offences Against the Person Act 1861, for example, and the Sale of Goods Act 1893 - the second in the Judicature Acts 1872-76, which replaced the mediaeval jumble of Common Law and Equity courts with the modern hierarchy of first instance and appellate courts applying both systems of law.

Law and administration were both immeasurably humanised thereby. And the reforms were carried through mostly in full realisation of the need to hide the fact that things were changing. The Victorians had a genius for hiding novelty behind the appearance of age. Probably not one in a hundred visitors to the High Court in the Strand realises that neither the building nor any of the courts housed there is more than 130 years old. And that has probably been so for the past hundred years. The move out of Westminster Hall and the Judicature Acts were wrenching changes for those who experienced them. But the scars of change were so quickly and perfectly healed. It is the same with the new Royal Family - an ancient institution no older than the 1870s - and most of the customs of Parliament. Even the London railway stations have an air of antiquity about them. On the eve of reform, Lord Eldon had warned: "Touch one atom, and the whole is lost".⁽⁶³⁾ For Reade in 1872, reform had been followed by obvious and unalloyed gains.

Even so, the gamble failed. Though concealed so far as they could be, and though their unsettling effects where thereby minimised, the reforms ultimately proved Lord Eldon right. The reformers tried to go carefully, but could not avoid destroying part of the Constitution's hidden rationality. Inevitably, the reforms of the 1830s and 40s included the creation of a civil service.

This has usually been regarded as not merely a necessary but also a good development. W.D. Rubinstein, for example, sees the absence of a civil service before this time as a paradox. The Old Corruption that it replaced was, he says,

pre-modern and non-rational in the Weberian sense of failing to obey the rational criteria of all modern bureaucracies which Weber and other sociologists have distinguished as crucial to, and inherent in, the process of modernization.⁽⁶⁴⁾

Britain was unique among European nations in the degree to which it had, long before, rid itself of pre-modern modes of thought and consciousness and adopted... a national mentality of rationalism in Weber's sense and an all-pervasive cash nexus which dissolved all pre-existing bonds.⁽⁶⁵⁾

The prejudice against any form of jurisdiction outside the Common Law prevented the growth of an effective civil service. The lack of an effective civil service then acted in turn as a preventive of such jurisdictions, even when ends otherwise unattainable were strongly desired. Dr Rubinstein himself gives a perfect instance of how the ancient Constitution stifled any reform that needed administrators to give it effect:

Sydney Smith opposed the appointment of factory inspectors [under the Factory Act 1802] because he was sure that, if such were appointed, they would not inspect any factories!⁽⁶⁶⁾

Administrative reform removed this preventive. Gradually, the sinecures were abolished. In their place, a new, professional administration was created, with appointment by competitive examination and promotion on merit. The liberal reformers were very proud of this. But they had deliberately given up the rigid defence of the ancient Constitution. Now, they had - mostly without realising - given up the main practical barrier to government activism. They believed that an attack on incompetence and corruption would result in smaller, cheaper government. The real effect - not obvious, perhaps, till after the second Reform Act - was to provide what remains the greatest illustration that history affords of public choice economics.

According to James Buchanan and Gordon Tullock⁽⁶⁷⁾, there are forces at work in politics analogous to those at work in economics. Among the most common desires of individuals are wealth and status, usually in some combination. Businessmen in a free market are driven, as if by an invisible hand, to offer new products to their customers, and to cut costs and prices. They do this not because they love their customer, but because this is only way in which they can struggle through to fortune and perhaps a place in the history books. In politics, these things are achieved by gaining and keeping office. This is most easily done in a democracy by promising the electors benefits for which others must bear the costs. These others may be later generations or a minority of the present generation. In either event, the benefits will be offered; and politics becomes a competitive auction for votes with other people's money.

At the same time, the personal interest of most administrators will lie in welcoming and even proposing such schemes, because they must be put in charge of delivering the benefits. This will mean an increase in their budgets, in the number of their subordinates, and in the status that they possess in the public mind.

The public choice trinity is completed by pressure groups. Typically, though not always, these will have a personal motive. Political and administrative reformers nearly always stand to benefit from the adoption of their "reforms". And for all they may celebrate private enterprise in their public utterances, few businessmen really like having to operate in a free market. It means competition in which they might lose, but in which they must always be acting against their own convenience. Even if they are not complete cynics, it takes little persuasion to make themselves believe in "market rationalisation" or "safeguarding the national interest", or whatever. Other things being equal, these groups and their demands will be taken up by the politicians and administrators in proportion to how well their schemes require a bigger and more active State.

Quite often, opposition will fail even when what is proposed is not remotely in the public interest as conceived in the wider sense. The reasons for this have been most rigorously explained by Mancur Olson in his writings on collective action.⁽⁶⁸⁾ All voluntary associations involve their members in costs and benefits. When the actual or potential benefits to each member are large, the members will be happy to incur heavy costs. When the benefits to each are small, there will not be the same incentive to incur costs. Typically, producer groups in search of market privilege fall into the first category, and consumer groups into the second. The first will have the money to buy the best and most intensive publicity in favour of their desired privilege. They can hire economists to draw up the relevant graphs or tables of statistics, and to make the worse appear the better case. The second are compelled by lack of finance to reply with general arguments that do not seem actually to address the main points at issue. The first will be helped by politicians and civil servants who see their own interests served thereby. The second can rely, at best, on the support of political outsiders who have no interest in the present state of affairs, but who also have little popular or party support.

Today, examples of how we are ruled by this public choice trinity are beyond counting. Look at the de facto marriage between the Ministry of Defence and the arms companies, between the Department of Transport and the road building companies, between the Police and the moral purity campaigners. Look at the rigging of the gas market, at the professional closed shops, at the Common Agricultural Policy. These are marriages obviously against the public interest; but few members of the public have an interest great enough

to spend money and effort in trying to annul them. And this process began with the sweeping away of Old Corruption. It cleared the path for the emergence of the boards of public health and public education, of the factory and food inspectorates, of the police forces, and of the municipal enterprises, that by the end of the century had utterly transformed the face of English government.

The most striking difference between the end and the beginning of the century lay in the use of delegated legislation. In 1800, any new powers conferred by Parliament on the authorities were specified in the Act. There was no allowance made for administrative discretion. By 1900, it was normal for powers to be conferred by an enabling Act. Nothing would be specified. Instead, there were phrases such as: "The Secretary of State shall make rules to bring this section into effect", or "in any dispute arising over the exercise of powers conferred by this section, the Minister shall adjudicate; and the decision of the Minister shall not be questioned in any court of law.". For Secretary of State or Minister, read officials. They were silently acquiring the power to make laws, and to enforce or waive these laws as they saw fit. Even in 1888, Maitland was able to tell his students that

[y]ear by year, the subordinate government of England is becoming more and more important. The new movement set in with the Reform bill of 1832: it has gone far already and assuredly it will go farther. We are becoming a much governed nation, governed by all manner of councils and boards and officers, central and local, high and low, exercising the powers which have been committed to them by modern statutes.⁽⁶⁹⁾

It is the liberals who did this. By relaxing the old worship of Common Law, and by promoting administrative reform, they untied the straitjacket of the Revolution Settlement.

The case against them is still worse. They could, even so, have prevented the worst effects of the untying; but they failed to do so. Public choice economics is about tendencies, not automatic laws of growth. These tendencies can be checked, and sometimes reversed, by the force of ideas. We have seen how this happened in the seventeenth century. To a limited extent, we can see this in the nineteenth - in, for example, the steady rejection by the authorities of any calls for a return to trade protection. Long after every other great nation had retreated behind a tariff wall, the British commitment to free trade remained unshakable. There was no shortage of special interest groups with money to spend and lies to tell. Every time, they were repulsed by a body of opinion for which tariffs were as abhorrent as Ship Money had once been.

The nineteenth century liberals had an ideology of immense power. The older arguments about the value of free development could now be supported by the discoveries of political economy. Here was an example of spontaneous organism. A few psychological and physical laws sufficed to explain the growth of trade and industry without any coordination by the State. The value of letting alone could be shown by arguments from principle as well as from experience. It was the consensus that an economy grew best when left to the laws of the market supplemented by a few obvious human laws against force and fraud. Had anyone challenged him in 1830, Macaulay could have appealed to the whole existing weight of economic science in support of his claim that

[I]t is not by the intermeddling of... the omniscient and omnipotent State, but by the prudence and energy of the people that England has hitherto been carried forward in civilisation.... Our rulers will best promote the improvement of the nation by strictly confining themselves to their own legitimate duties, by leaving capital to find its most lucrative course, commodities their fair price, industry and intelligence their natural reward, idleness and folly their natural punishment, by maintaining peace, by defending property, by diminishing the price of law, and by observing strict economy in every department of the State. Let the Government do this: the People will assuredly do the rest.⁽⁷⁰⁾