第9章 POLITICAL CONDITIONS(4)
The country-gentleman had strong prejudices and enough common sense to recognise his own ignorance.The product of a traditional order,he clung to traditions,and regarded the old maxims as sacred because no obvious reason could be assigned for them.He was suspicious of abstract theories,and it did not even occur to him that any such process as codification or radical alteration of the laws was conceivable.For the law itself he had the profound veneration which is expressed by Blackstone.It represented the 'wisdom of our ancestors';the system of first principles,On which the whole order of things reposed,and which must be regarded as an embodiment of right reason.The common law was a tradition,not made by express legislation,but somehow existing apart from any definite embodiment,and revealed to certain learned hierophants.
Any changes,required by the growth of new social conditions,had to be made under pretence of applying the old rules supposed to be already in existence.
Thus grew up the system of 'judge-made law,'which was to become a special object of the denunciations of Bentham.Child had noticed the incompetence of the country-gentlemen to understand the regulation of commercial affairs.
The gap was being filled up,without express legislation,by judicial interpretations of Mansfield and his fellows.This,indeed,marks a characteristic of the whole system.'Our constitution,'says Professor Dicey,(8)'is a judge-made constitution,and it bears on its face all the features,good and bad,of judge-made law.'The law of landed property,meanwhile,was of vital and immediate interest to the country-gentleman.But,feeling his own incompetence,he had called in the aid of the expert.The law had been developed in medieval times,and bore in all its details the marks of the long series of struggles between king and nobles and parliaments.One result had been the elaborate series of legal fictions worked out in the conflict between private interests and public policy,by which lawyers had been able to adapt the rules fitted for an ancient state of society to another in which the very fundamental conceptions were altered.A mysterious system had thus grown up,which deterred any but the most resolute students.Of Fearne's essay upon 'Contingent remainders'(published in 1772)it was said that no work 'in any branch of science could afford a more beautiful instance of analysis.'Fearne had shown the acuteness of 'a Newton or a Pascal.'Other critics dispute this proposition;but in any case the law was so perplexing that it could only be fully understood by one who united antiquarian knowledge to the subtlety of a great logician.
The 'vast and intricate machine,'as Blackstone calls it,'of a voluminous family settlement'required for its explanation the dialectical skill of an accomplished schoolman.The poor country-gentleman could not understand the terms on which he held his own estate without calling in an expert equal to such a task.The man who has acquired skill so essential to his employer's interests is not likely to undervalue it or to be over anxious to simplify the labyrinth in which he shone as a competent guide.
The lawyers who played so important a part by their familiarity with the mysteries of commercial law and landed property,naturally enjoyed the respect of their clients,and were rewarded by adoption into the class.The English barrister aspired to success by himself taking part in politics and legislation.
The only path to the highest positions really open to a man of ability,not connected by blood with the great families,was the path which led to the woolsack or to the judge's bench.A great merchant might be the father or father-in-law of peers;a successful soldier or sailor might himself become a peer,but generally he began life as a member of the ruling classes,and his promotion was affected by parliamentary influence.But a successful lawyer might fight his way from a humble position to the House of Lords.Thurlow,son of a country-gentleman;Dunning,son of a country attorney;Ellenborough,son of a bishop and defendant of a long line of North-country 'statesmen';Kenyon,son of a farmer;Eldon,son of a Newcastle coal merchant,represent the average career of a successful barrister.Some of them rose to be men of political importance,and Thurlow and Eldon had the advantage of keeping George III's conscience --an unruly faculty which had an unfortunately strong influence upon affairs.The leaders of the legal profession,therefore,and those who hoped to be leaders,shared the prejudices,took a part in the struggles,and were rewarded by the honours of the dominant class.
The criminal law became a main topic of reformers.There,as elsewhere,we have a striking example of traditional modes of thought surviving with singular persistence.The rough classification of crimes into felony and misdemeanour,and the strange technical rules about 'benefit of clergy'dating back to the struggles of Henry II and Becket,remained like ultimate categories of thought.When the growth of social conditions led to new temptations or the appearance of a new criminal class,and particular varieties of crime became conspicuous,the only remedy was to declare that some offence should be 'felony without benefit of clergy,'and therefore punishable by death.