Letter 7. English Jealousy of Law Courts

{345} PEOPLE account for the mismanagement existing in the department of the military service, on the ground that war is a novelty in this generation, and that it will be corrected after the successive failures of a few years. This doubtless has something to do with our failure, but it is not a full explanation of it; else, there would be no mismanagements in time of peace. But, if mismanagements exist in peace as well as in war, then we may conclude that they are some defect in our talent for organization; a defect, the more unaccountable, because Englishmen are far from wanting in this faculty, as is shown by the great undertakings of our master builders and civil engineers. Yet all the time that private men have been directing matters and men on a large scale to definite ends, there has been a general feeling in the community that a government proceeding is a blunder or a job. From the Irish famines of 1822 to that of 1845 and following years, I think I recollect instances in point, though I have got no list to produce. As to the latter occasion, it is commonly said that to this day the Irish will not believe, in spite of the many millions voted to them by Parliament, that their population has not been deliberately murdered by the Government. This was a far larger instance of mismanagement than that which the present Parliamentary Committee will bring to light. How then shall we account for the phenomenon of the incapable Executive of {346} a capable people better than by saying, that, for the very reason the people is capable, its Executive is incapable, as I have been urging all along? It is true, there are public departments of acknowledged efficiency, as the Post Office and the Police; but these only show what the Executive could be, if the Nation gave it fair play.

And thus I might end my remarks on the subject, which have already been discursive and excursive, beyond the patience of most readers; and yet I think it worth while, Mr. Editor, to try it a little more, if I gain your consent to my doing so. For I have not yet brought out so clearly as I wish, the relation of the Nation to the Executive, as it exists in this corner of the earth.

The functions of the Executive are such as police, judicature, religion, education, finance, foreign transactions, war. The acts of the Executive are such as the appointment, instruction, supervision, punishment, and removal of its functionaries. The end of the Executive is to perform those functions by means of those acts with despatch and success; that is, so to appoint, instruct, superintend, and support its functionaries, as effectually to protect person and property, to dispense justice, to uphold religion, to provide for the country's expenses, to promote and extend its trade, to maintain its place in the political world, and to make it victorious and formidable. These things, and such as these, are the end,—the direct, intelligible end,—of the Executive; and to secure their accomplishment, and to secure men to accomplish them, one would suppose would be the one and only object of all Executive government; but it is not the only object of the English.

A very few words will explain what I mean. John, Duke of Marlborough, obtained for the town of Witney {347} a monopoly of blanket-making: accordingly, I believe, Witney at one time supplied the whole nation with blankets of such size and quality as the men of Witney chose. Looking at this as a national act, one would say, that the object of the nation was, not to provide itself with best blankets, but with Witney blankets; and, did a foreigner object that the blankets were not good, he would speak beside the mark, and be open to the retort, "Nobody said they were good; what we maintain is that they come from Witney." Now, applying this illustration to our present circumstances, I humbly submit that, though the end of every Executive, as such, is to do its work well, cheaply, and promptly, yet, were the French in the Crimea to judge us by this principle, and to marvel at our choosing neither means or men in accordance with it, they would be simply criticising what they did not understand. The Nation's object never was that the Executive should be worked in the best possible way, but that the Nation should work it. It is altogether a family concern on a very large scale: the Executive is more or less in commission, and the commission is the Nation itself. It vests in itself, as represented by its different classes, in perpetuity, the prerogative of jobbing the Executive. Nor is this so absurd as it seems:—the Nation has two ends in view, quite distinct from the proper end of the Executive itself;—first, that the Government should not do too much, and next, that itself should have a real share in the Government. The balance of power, which has been the mainspring of our foreign politics, is the problem of our home affairs also. The great State Commission must be distributed in shares, in correspondence with the respective pretensions of its various expectants. Some States are cemented by loyalty, others by religion; but ours by self-interest, in {348} a large sense of the word. Each element of the political structure demands its special retainer; and power is committed, not to the highest capacity, but to the largest possible constituency. The general public, the constituency, the press, the aristocracy, the capital of the country, the mercantile interest, the Crown, the Court, the great Constitutional parties, Whig and Tory, the great religious parties, Church and Dissent, the country gentlemen, the professions—all must have their part and their proportion in the administration. Such is the will of the Nation, which had rather that its institutions should be firm and stable, than that they should be effective.

But the Sovereign, perhaps it will be said, is the source of all jurisdiction in the English body political, as Tudor monarchs asserted, and Constitutional lawyers have handed down to us;—yes, as the Merovingian king, not the Mayor of the Palace, was ruler of France, and as the Great Mogul, not the Company, is the supreme power in Hindostan. Could Victoria resume at her will that power which the Tudors exercised, but which slipped out of the hands of the Stuarts? The Pope, too, leaves his jurisdiction in the hands of numberless subordinate authorities, patriarchs, metropolitans, bishops, sacred congregations, religious orders; he, however, can, if he pleases, recall what he has given, and sometimes, in fact, he does put them all aside. I think it would astonish the public if, to take a parallel case, our gracious Sovereign, motu proprio, were to resume the management of the Crown lands, or re-distribute the dioceses without an Act of Parliament. Let us dismiss from our minds the fictions of antiquarians; the British people divide among themselves the executive powers of the Crown:—and now to give some illustrations in point.

The end of the Judicature is justice. The functionaries {349} are commonly a jury, made up of men, not specially prepared for their occasional office, but chosen for it as representatives of a class, and performing it under the direction of a properly educated and experienced dignitary, called by courtesy the Judge. When I was young, I recollect being shocked at hearing an eminent man inveigh against this time-honoured institution, as if absurdly unfitted to promote the ends of the Law. He was answered by an able lawyer, who has since occupied the judicial bench; and he, instead of denying that precise allegation, argued that the institution had a beneficial political effect on the classes who were liable to serve as jurymen, as associating them with the established order of things, and investing them with salutary responsibilities. There is a good deal in this reason:—a still more plausible defence, I think, may be found in the consideration of the inexpediency of suffering the tradition of Law to flow separate from that of popular feeling, whereas there ought to be a continual influx of the national mind into the judicial conscience; and, unless there was this careful adjustment between law and politics, the standards of right and wrong, set up at Westminster, would diverge from those received by the community at large, and the Nation might some day find itself condemned and baffled by its own supreme oracle of truth. This would be gravely inconvenient; accordingly, as the Star Chamber recognized the royal decisions as precedents in law, and formed a tradition of the Court, so it is imperative, in our better state of things, that Public Opinion should give the law to Law, and should rule those questions which directly bear upon any matter of national concern. By the expedient, then, of a Jury, the good of the country is made to take the lead of private interest; for better far is it that injustice should be done to a pack of individuals, {350} than that the maxims of the Nation should at any time incur the animadversion of its own paid officials, and a deadlock in State matters should be the result of so unfortunate an antagonism.

What makes me think that this is the real meaning of a jury, is what has lately taken place in a parallel way in the Committee of Privy Council on the baptismal controversy. My lords refused to go into the question of the truth of the doctrine in dispute, or into the meaning of the language used in the Prayer Book; they merely asserted that a certain neutral reading of that language, by which it would bear contrary senses, was more congenial with the existing and traditional sentiments of the English people. They felt profoundly that it would never do to have the Church of the Nation at variance in opinion with the Nation itself. In other words, neither does English law seek justice, nor English religion seek truth, as ultimate and simple ends, but such a justice and such a truth as may not be inconsistent with the interests of large conservatism.

Again, I have been told by an eminent lawyer, that, in another ecclesiastical dispute which came before the Queen's Bench, a Chief Justice, now no more, rather than commit the Court to an unpopular decision, reversed the precedents of several centuries. No one could suspect that upright Judge of cowardice, time-serving, or party prejudice. The circumstances explained the act. Those precedents were out of keeping with the present national mind, which must be the perpetual standard and authoritative interpreter of the law; and, as the Minister for Foreign Affairs instructs the Queen's representative at a Congress, what to think and say, so it is the Nation's right to impose upon the Judges the duty of expounding certain points of law in a sense {351} agreeable to its high and mighty self. Accordingly the Chief Justice's decision on the occasion in question resulted in giving the public (as Lord John Russell expressed it as regards the Baptismal question) "great satisfaction." For satisfaction, peace, liberty, conservative interests, were the supreme end of the law, and not mere raw justice, as such. It is another illustration of the same spirit, though it does not strictly fall under our subject, that, at the public meeting held to thank that earnest and energetic man, Mr. Maurice, for the particular complexion of one portion of his theology, a speaker congratulated him on having, in questioning or denying eternal punishment, given (not a more correct, but) a "more genial" interpretation to the declarations of Holy Scripture.

Much, again, might be said upon the Constitutional rights of wealth, as tending to the weakening of the Executive. Wealth does not indeed purchase the higher appointments in the Law, but it can purchase situations, not only in the clerical, but in the military and civil services, and in the legislature. It is difficult to draw the line between such recognized transactions, and what is invidiously called corruption. As to parliamentary matters, I can easily understand the danger of that mode of proceeding, which I have called Constitutional, being carried too far. I can do justice to the feeling which, on a late occasion, if I recollect rightly, caused a will to be set aside, which provided for the purchase of a peerage. We must, of course, draw the line somewhere; but if you take your stand on principle, as it is the fashion to do, then I cannot go along with you, and have never been able to see the specific wickedness (where oaths are not broken or evaded) of buying a seat in Parliament, as contrasted with the purchase of an eligible incumbency. It must not be forgotten, that, from the time of Sir {352} Robert Walpole, bribes, to use an uncivil word, have been necessary to our Constitutional regime,—visions of a higher but impracticable system having died away with Bolingbroke's "Patriot King."

This is but one instance of what is seen in so many various ways, that our Executive is on principle subordinate to class interests; we consider it better that it should work badly, than work to the inconvenience and danger of our national liberties. Such is self-government. Ideal standards, generous motives, pure principles, precise aims, scientific methods, must be excluded, and national utility must be the rule of administration. It is not a high system, but no human system is such. The knout and the tar-barrel aforementioned are not more defensible modes of proceeding, and are less pleasant than ours. Under ours, the individual is consulted for far more carefully than under despotism or democracy. Injustice is the exception; a free and easy mode of living is the rule. It is a venal régime; que voulez-vous? improvement may make things worse. It succeeds in making things pleasant at home; whether it succeeds in war is another question.

Top | Contents | Works | Home

Newman Reader — Works of John Henry Newman
Copyright © 2007 by The National Institute for Newman Studies. All rights reserved.