If we turn to local government outside the towns there is the same decay of self-government.
One way of describing the changes that came over English society after the break-up of feudalism would be to say that as in France everything drifted into the hands of the intendant, in England everything drifted into the hands of the Justice of the Peace. This office, created in the first year of Edward III., had grown during his reign to very great importance and power. Originally the Justices of the Peace were appointed by the state to carry out certain of its precepts, and generally to keep the peace in the counties in which they served. In their quarterly sittings they had the assistance of a jury, and exercised a criminal jurisdiction concurrent with that which the king’s judges exercised when on circuit. But from early days they developed an administrative power which gradually drew to itself almost all the functions and properties of government. Its quasi-judicial origin is seen in the judicial form under which it conducted such business as the supervision of roads and bridges. Delinquencies and deficiencies were ‘presented’ to the magistrates in court. It became the habit, very early in the history of the Justices of the Peace, to entrust to them duties that were new, or duties to which existing authorities were conspicuously inadequate. In the social convulsions that followed the Black Death, it was the Justice of the Peace who was called in to administer the elaborate legislation by which the capitalist classes sought to cage the new ambitions of the labourer. Under the Elizabethan Poor Law, it was the Justice of the Peace who appointed the parish overseers and approved their poor rate, and it was the Justice of the Peace who held in his hand the meshes of the law of Settlement. In other words, the social order that emerged from mediæval feudalism centred round the Justice of the Peace in England as conspicuously as it centred round the bureaucracy in France. During the eighteenth century, the power of the Justice of the Peace reached its zenith, whilst his government acquired certain attributes that gave it a special significance.
At the beginning of the eighteenth century there were still many small men taking some part in the affairs of the village. The old manorial civilisation was disappearing, but Mr. and Mrs. Webb have shown that manor courts of one kind or another were far more numerous and had far more to do at the beginning of the eighteenth century than has been commonly supposed. Such records as survive, those, e.g. of Godmanchester and Great Tew, prove that the conduct and arrangement of the business of the common fields—and England was still, at the beginning of this period, very largely a country of common fields—required and received very full and careful attention. Those courts crumble away as the common fields vanish, and with them there disappears an institution in which, as Professor Vinogradoff has shown, the small man counted and had recognised rights. By the time of the Reform Bill, a manor court was more or less of a local curiosity. The village vestries again, which represented another successor to the manorial organisation, democratic in form, were losing their vitality and functions, and coming more and more under the shadow of the Justices of the Peace. Parochial government was declining throughout the century, and though Professor Lowell in his recent book speaks of village government as still democratic in 1832, few of those who have examined the history of the vestry believe that much was left of its democratic character. By the end of the eighteenth century, the entire administration of county affairs, as well as the ultimate authority in parish business, was in the hands of the Justice of the Peace, the High Sheriff, and the Lord-Lieutenant.
The significance of this development was increased by the manner in which the administration of the justices was conducted. The transactions of business fell, as the century advanced, into fewer and fewer hands, and became less and less public in form and method. The great administrative court, Quarter Sessions, remained open as a court of justice, but it ceased to conduct its county business in public. Its procedure, too, was gradually transformed. Originally the court received ‘presentments’ or complaints from many different sources—the grand juries, the juries from the Hundreds, the liberties and the boroughs, and from constable juries. The grand juries presented county bridges, highways or gaols that needed repair: the Hundred juries presented delinquencies in their divisions: constable juries presented such minor anti-social practices as the keeping of pigs. Each of these juries represented some area of public opinion. The Grand Jury, besides giving its verdict on all these presentments, was in other ways a very formidable body, and acted as a kind of consultative committee, and perhaps as a finance committee. Now all this elaborate machinery was simplified in the eighteenth century, and it was simplified by the abandonment of all the quasi-democratic characteristics and methods. Presentments by individual justices gradually superseded presentments by juries. By 1835 the Hundred Jury and Jury of Constables had disappeared: the Grand Jury had almost ceased to concern itself with local government, and the administrative business of Quarter Sessions was no longer discussed in open court.
Even more significant in some respects was the delegation of a great part of county business, including the protection of footpaths, from Quarter Sessions to Petty Sessions or to single justices out of sessions. Magistrates could administer in this uncontrolled capacity a drastic code for the punishment of vagrants and poachers without jury or publicity. The single justice himself determined all questions of law and of fact, and could please himself as to the evidence he chose to hear. In 1822 the Duke of Buckingham tried and convicted a man of coursing on his estate. The trial took place in the duke’s kitchen: the witnesses were the duke’s keepers. The defendant was in this case not a poacher, who was fera naturæ, but a farmer, who was in comparison a person of substance and standing. The office of magistrate possessed a special importance for the class that preserved game, and readers of Rob Roy will remember that Mr. Justice Inglewood had to swallow his prejudices against the Hanoverian succession and take the oaths as a Justice of the Peace, because the refusal of most of the Northumberland magistrates, being Jacobites, to serve on the bench, had endangered the strict administration of the Game Laws. We know from the novels of Richardson and Fielding and Smollett how this power enveloped village life. Richardson has no venom against the justices. In Pamela he merely records the fact that Mr. B. was a magistrate for two counties, and that therefore it was hopeless for Pamela, whom he wished to seduce, to elude his pursuit, even if she escaped from her duress in his country house.
Fielding, who saw the servitude of the poor with less patience and composure, wrote of country life with knowledge and experience. In Joseph Andrews he describes the young squire who forbids the villagers to keep dogs, and kills any dog that he finds, and the lawyer who assures Lady Booby that ‘the laws of the land are not so vulgar to permit a mean fellow to contend with one of your ladyship’s fortune. We have one sure card, which is to carry him before Justice Frolic, who upon hearing your ladyship’s name, will commit him without any further question.’ Mr. Justice Frolic was as good as his reputation, and at the moment of their rescue Joseph and Fanny were on the point of being sent to Bridewell on the charge of taking a twig from a hedge. Fielding and Richardson wrote in the middle of the eighteenth century. In 1831 Denman, the Attorney-General in Grey’s Government, commented on the difference between the punishments administered by judges at Assize and those administered by justices at Quarter Sessions, in the defence of their game preserves, observing that the contrast ‘had a very material effect in confusing in the minds of the people the notions of right and wrong.’ This territorial power was in fact absolute. In France the peasant was in some cases shielded from the caprice of the seigneur by the Crown, the Parlements and the intendants. Both Henry IV. and Louis XIII. intervened to protect the communities in the possession of their goods from the encroachments of seigneurs, while Louis XIV. published an edict in 1667 restoring to the communities all the property they had alienated since 1620. In England he was at the landlord’s mercy: he stood unprotected beneath the canopy of this universal power.
Nor was the actual authority, administrative or judicial, of the magistrates and their surveillance of the village the full measure of their influence. They became, as Mr. and Mrs. Webb have shown, the domestic legislature. The most striking example of their legislation was the Berkshire Bread Act. In 1795 the Berkshire Court of Quarter Sessions summoned justices and ‘several discreet persons’ to meet at Speenhamland for the purpose of rating husbandry wages. This meeting passed the famous resolution providing for the supplementing of wages out of the rates, on a certain fixed scale, according to the price of flour. The example of these seven clergymen and eleven squires was quickly followed in other counties, and Quarter Sessions used to have tables drawn up and printed, giving the justices’ scale, to be issued by the Clerk of the Peace to every acting magistrate and to the churchwardens and overseers of every parish. It was a handful of magistrates in the different counties, acting on their own initiative, without any direction from Parliament, that set loose this social avalanche in England. Parliament, indeed, had developed the habit of taking the opinion of the magistrates as conclusive on all social questions, and whereas a modern elected local authority has to submit to the control of a department subject to Parliament, in the eighteenth century a non-elected local authority, not content with its own unchecked authority, virtually controlled the decisions of Parliament as well. The opposition of the magistrates to Whitbread’s Bill in 1807, for example, was accepted as fatal and final.
Now if the Crown had been more powerful or had followed a different policy, the Justices of the Peace, instead of developing into autonomous local oligarchies, might have become its representatives. When feudal rights disappeared with the Wars of the Roses, the authority of the Justice of the Peace, an officer of the Crown, superseded that of the local lord. Mr. Jenks[3] is therefore justified in saying that ‘the governing caste in English country life since the Reformation has not been a feudal but an official caste.’ But this official caste is, so to speak, only another aspect of the feudal caste, for though on paper the representatives of the central power, the county magistrates were in practice, by the end of the eighteenth century, simply the local squires putting into force their own ideas and policy. Down to the Rebellion, the Privy Council expected judges of assize to choose suitable persons for appointment as magistrates. Magistrates were made and unmade until the reign of George I., according to the political prepossessions of governments. But by the end of the eighteenth century the Lord Lieutenant’s recommendations were virtually decisive for appointment, and dismissal from the bench became unknown. Thus though the system of the magistracy, as Redlich and Hirst pointed out, enabled the English constitution to rid itself of feudalism a century earlier than the continent, it ultimately gave back to the landlords in another form the power that they lost when feudalism disappeared.
Another distinctive feature of the English magistracy contributed to this result. The Justice of the Peace was unpaid. The statutes of Edward III. and Richard II. prescribed wages at the handsome rate of four shillings a day, but it seems to be clear, though the actual practice of benches is not very easy to ascertain, that the wages in the rare instances when they were claimed were spent on hospitality, and did not go into the pockets of the individual justices. Lord Eldon gave this as a reason for refusing to strike magistrates off the list in cases of private misconduct. ‘As the magistrates gave their services gratis they ought to be protected.’ When it was first proposed in 1785 to establish salaried police commissioners for Middlesex, many Whigs drew a contrast between the magistrates who were under no particular obligation to the executive power and the officials proposed to be appointed who would receive salaries, and might be expected to take their orders from the Government.
The aristocracy was thus paramount both in local government and in Parliament. But to understand the full significance of its absolutism we must notice two important social events—the introduction of family settlements and the abolition of military tenures.