The Story of English Law: Part 8

Reform and decline

The 19th century is seen as the Age of Reform, but before we come to that, we need to say something of the previous century.

The supremacy of parliament was settled by the Bill of Rights.  That left the independence of the judges to be guaranteed.  This came with the Act of Settlement  which secured the Protestant succession and provided that judges would hold office while of good behaviour and not subject to the decision of the crown. To this day, only an Anglican can be head of state.

Politics ran on what they called patronage and we call corruption.  Men expected to be rewarded for serving the public.  Walpole was a political survivor who would be recognised as the first prime minister.  He was followed by Pitt, father and son, and star turns like Burke, Fox, Sheridan and Wilberforce – super stars of oratory. 

The notions of a cabinet and ministerial responsibility – that had been hinted at in the previous century – were beginning to take hold.  It would come to be accepted that ministers of the crown only held office while they enjoyed the support of the House of Commons.  This notion was being developed – again piece-meal and over time – as ‘parties’ known as Tories and Whigs slowly crystallized into Conservatives, or Tories, and Liberals – to be joined later by the Labour Party.

But although the parliament attracted super stars, it was badly in need of reform, and this did not happen until 1832 – and then only after the nation just escaped having another revolution.

The other matter of interest to us was the colossal impact of Lord Mansfield over the common law.  He was a towering giant of a judge.  Burke said of Mansfield at the bar: ‘He had some superiors in force, some equals in persuasion; but in insinuation he was without a rival. He excelled in the statement of a case. This of itself, was worth the argument of any other man.’  Those people put the fear of God into government on the bench.  People can understand them and such judges are often seen as friends of the people.

Mansfield went on to become the Lord Chief Justice of England for thirty-two years.  He became deeply unpopular and his house was burnt down during the Gordon Riots.  (He later presided over the trial of Gordon.  He concluded his charge to the jury at 4.30 of the second morning of the trial.)

He left a lasting impression on almost every aspect of English law.  He was, like Lord Denning, personally conservative, but radical on the bench. 

He knew how to get through the business.  He decided about 700 cases a year.  He made a point of clearing his list at once each term and he often rose at one or two o’clock in the afternoon.  He knew that delay is the fault of the lawyers, not the litigants.  He outlawed adjournments even by consent.  He is said to have originated the English practice of giving judgment on the spot, and our loss of that facility shows how we are now going backwards.  He understood that business flows into the court of a good judge.

He said that the law generally, especially commercial law, had to be contained in rules easily learnt and retained because they are the dictates of common sense.  He empanelled special juries of people in business to help with the law.  The case of Moses v Macferlan was a great case on the basis of which a huge amount of learning on the law of restitution has developed.  The manuscript note of Mansfield of the case takes about a page in contemporary text.

We have not seen his like since.

Most of the old formulaic issues were scrapped by the legislature.  Most of the barbarity was taken from the criminal law and the great achievement of the Age of Reform was to cut back on the public cruelty that had blighted all parts of English life – including slavery.

It remained to increase the franchise.  The grandson of an Italian Jew became Prime Minister.  It was this great Conservative who brought in legislation to spread the vote so much more widely.  He made his queen the Empress of India and bought her the Suez Canal after a call on the Rothschilds.

At the start of the 20th century, the son of a Welsh cobbler and the son of a very active American mother effectively declared war on the aristocracy by bringing in the People’s Budget.  They said it was the business of the state to look after the sick – which would be close to heresy in a lot of the U S still now.  It was touch and go – as brittle as the time before parliamentary reform a century ago.  On each occasion, the king intervened to break the deadlock by threatening to create peers.  People speak of ‘checks and balances.’  These worked.

Women got the vote.  They had to because they had supplied the labour to make the armaments that won the war.

England survived one world war, the depression, and another world war.  But it was spent.  It shed empire, but its standing in the world hardly recovered from the Suez fiasco.  Serious industrial torpor got a hard cure from their first woman PM (and you don’t bring her name up at Oxbridge), but it left bad scarring.  The same could be said for the smooth talking man who made the Left softly populous and whom no one now speaks well of.  Among other things, he is filthy rich.  The present mob from Eton hardly bear mention.  Like the US, the UK has been morally crippled by a lazy, greedy, spoiled child – but the Tories have not suffered the moral or intellectual bankruptcy of the Republicans.

The civil service has been shredded.  The parliament is no longer the envy of the world, and Europe is justly bitter that the English welched.  The legal system by comparison does not look so bad.

The Botany Bay slammer has its own sunburnt and climate threatened somnolence.  Government at all levels is generally on the nose.  Behaviour in the parliament is appalling.  The system depends on two parties who stand for nothing and are wickedly mismanaged by small cliques of self-seeking zealots who know not what they do.  We have trashed the civil service.  The legal system is buckling under far too much law, both from parliaments and judges, and the judges are no longer willing or able to do their job and clear their lists.  We still have a head of state who is foreign, and who must be in communion with the Church of England.  We have the most banal anthem on the planet, and a foreign flag on our own that represents those who stole the land of the First Nations.

So, nothing in the garden is rosy.  But if you are lucky, on a good day, you might look up and find a gum tree – with a smiley koala.

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