Law and Society in England 1750-1950

William Cornish, Stephen Banks, Charles Mitchell, Paul Mitchell, Rebecca Probert

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509931255
• Edition: 1
• Topic: Law
• Subtopic: Legal History
• Index: Law

Law and Society in England 1750–1950 is an indispensable text for those wishing to study English legal history and to understand the foundations of the modern British state. In this new updated edition the authors explore the complex relationship between legal and social change. They consider the ways in which those in power themselves imagined and initiated reform and the ways in which they were obliged to respond to demands for change from outside the legal and political classes. What emerges is a lively and critical account of the evolution of modern rights and expectations, and an engaging study of the formation of contemporary social, administrative and legal institutions and ideas, and the road that was travelled to create them. The book is divided into eight chapters: Institutions and Ideas; Land; Commerce and Industry; Labour Relations; The Family; Poverty and Education; Accidents; and Crime.
This extensively referenced analysis of modern social and legal history will be invaluable to students and teachers of English law, political science, and social history.

1

Institutions and Ideas

This book explores the history of legal doctrines and forms within the society that generated them. It considers the political, social and economic pressures which affected the law’s development and the law’s influence on political, social and economic change. This first chapter lays a foundation for what follows. It divides the time span of the book into two parts, making its break at 1875, when the court system was given more coherent structure by the Supreme Court of Judicature Acts. Each part begins with relations between law and society, the economy and politics. We then turn to the apparatus of executive government, the court system and the legal professions. Finally, we examine contemporary ideas about politics, social relations and law.

Part 1: Industrialisation 1750–1875

A.Society and Law

The social and economic changes that thrust Britain forward from her early Georgian to her late Victorian condition were the greatest in her history. In 1700, most people still lived in rural areas, but by comparison with other European states the country was already an advanced commercial economy: less than half the male workforce worked on the land and the rest worked at secondary and tertiary trades (building, manufacturing, transport, retail).¹ By 1900, this mainly rural society had evolved into a predominantly urban society, as a result of population growth, town growth and migration from country to town. In 1750, the population of England was 5.7 million; in 1801 it was 8.3 million; by 1851 it had doubled to 16.8 million; and by 1900 it had nearly doubled again to 30.5 million.² Earlier marriage and improved life expectancy meant that more children survived into adulthood to found families of their own.³ The types of families in which people lived changed little: unmarried cohabitation was rare, very few marriages were formally ended by divorce,⁴ and only a minority of households contained more than two generations. But the places where people lived changed significantly.⁵ In 1800, 30 per cent of the population lived in towns and cities, by 1850 this had risen to 50 per cent, and by 1900 to 75 per cent.⁶ In 1800, agriculture employed 35 per cent of the male workforce, by 1850 this had fallen to 22 per cent, and by 1900 to 16 per cent. These shifts were the result of a long period of industrialisation, the timing and intensity of which varied from one place to another, but which was far advanced in the main industrial centres by 1850.⁷

Before the 1980s many scholars believed that these changes had created new class tensions, and new political ideologies, by the end of the 1700s. Historians including Jonathan Clark then proposed a different interpretation of the years running from 1688 to 1832, emphasising the social and political continuities of the period and speaking in terms of a ‘long eighteenth century’.⁸ In Clark’s view, the early 1800s were the tail end of a period during which the nation was dominated culturally and politically by the monarchy, the aristocracy and the Church of England; before the 1830s this dominance was barely affected by the spread of religious Nonconformism⁹ or by the emergence of an urban middle class with its own distinctive viewpoint. This ancien regime then abruptly gave way, as a result not of social pressure from below but of political failures at the top, as Peel and Wellington weakly conceded Catholic emancipation in 1829 and extension of the Parliamentary franchise in 1832. This analysis has itself been challenged, however, for instance by Boyd Hilton,¹⁰ who has argued that the years from 1780 to 1830 saw a revival rather than a continuation of conservative ideologies that was provoked by the emergence of progressive ideas inspired by the Revolutions in America and France.¹¹ In his view, also, late eighteenth-century society was not simply divided into two groups – the landed classes and the rest¹² – as by this time there had emerged a bourgeoisie,¹³ whose political interests and outlook became aligned with those of the landed elite only later in the nineteenth century.¹⁴

On the latter view, typical members of the upper, middle and working classes corresponded to the notional actors of classical economics – the landowner who took rent, the businessman or trader who competed for profits, the labourer who drew wages. These divisions implied social barriers of education and work experience, of accent and culture, that were hard to bridge, though some movement between classes was possible.¹⁵ A farm labourer’s son who worked on the land had minimal prospects of social advancement, but a successful tenant farmer might become a small squire and an ambitious apprentice might advance to journeyman and eventually to master and alderman. For working class boys, the chances of acquiring non-manual jobs when they grew up probably depended more on the proliferation of such roles than it did on failures by middle class sons to acquire them.¹⁶ For women, meanwhile, the barriers to certain kinds of employment were legal as well as social. Women remained barred from most professions, and from the ability to obtain a degree.¹⁷ Protective measures would also be enacted to prevent women and children from working in certain particularly grueling occupations, and to limit the hours for which they could be employed.¹⁸ And although there were no legal restrictions on women running businesses, the ability of married women to do so was constrained to some extent by the legal restrictions on their ownership of property and their ability to enter contracts.¹⁹

Two aspects of the interrelation between English law and society distinguished the country at the start of our period. First was the virtual absence of laws whose overt purpose was to segregate special elites or to restrain upward social movement. There were no separate estates of nobility, clergy and bourgeoisie, each subject to its own legal regime; the common law allowed scope for the vagaries of local custom, but it was opposed to legal pluralism on such a scale. At the top of the social pyramid the aristocratic elite had not sought purity of caste by defining the group within which its members might marry.²⁰ At the bottom, feudal serfdom had disappeared over time, the depopulation of the fourteenth century contributing much to the process. There remained only the bound condition of the Scottish miners (until 1796)²¹ and enslaved Africans in the towns (until their emancipation conferred by Lord Mansfield in 1772).²² Labour migration from one part of the country to another in search of work was somewhat curtailed by the laws of settlement, which placed parishes under an obligation to provide only for the poor folk who were settled there.²³ However, the major limitations placed on social groups were of political rights – rights to vote and hold political office, which were restricted on grounds of gender, religion and wealth.

Secondly, a preference had emerged for individual private property rights over notions of obligation to family or larger community. In law this was marked by rules allowing the alienation of land on death as well as during life, a process much advanced in 1540 when freehold land became open to testamentary disposition. By the 1600s private property was deeply entrenched as the starting point for political thought. Whether society was perceived as the product of a social contract or as the accretion of historical experience, it had become an ordering which preserved property before all else through the law and government.²⁴ This was mirrored in a strong aversion to taxation, the unrestrained exercise of which was a contributing cause of the civil war and which was viewed by many as a fundamental violation of personal liberty.²⁵

In eighteenth-century England, the gradations of social rank were keenly observed. Society was dominated by a ruling class whose wealth lay primarily in land, and whose members treated each other according to an elaborate code of refined manners and formal honour. Rank insults were settled by duel²⁶ and proprietary grievances by a Chancery suit. They expected, though they did not always receive, a loyal subservience from those below. The counterpart of this deference was a measure of responsibility, rough or oppressive though this might have been. For the propertied divided amongst themselves, according to rank, responsibility for maintaining the poor and disciplining the vagrant, pursuing the criminal to justice and maintaining the roads, bridges and riverbanks.²⁷ In every advancement people looked to the patronage of ‘friends’,²⁸ and the system of government bred a plethora of offices which could be used to satisfy such demands. Some were sinecures, others carried more or less arduous duties. Some could be made to generate remarkably large incomes. Nowhere was the network of place more evident than in the manifold clerkships, masterships and stewardships of the courts. Justice after all was a major activity of government.

The emergence of a middle class with interests that differed from those of the landed order was rooted in economic circumstance. The increase in commercial, manufacturing and industrial activity that occurred during the eighteenth and early nineteenth centuries swelled the middle ranks to a size and proportion that compelled a political reckoning. They came to see their interest as lying in the freedom to compete in markets rather than in protection from foreign and colonial trade. The food needed for the growing population gave these new perceptions a sharp focus. The wars with France at the turn of the eighteenth century made the supply of corn from continental markets difficult, pushed up home prices and induced a major wave of inflation. Agricultural owners and producers at home shared in a new prosperity which rescued many from long-borne debt.²⁹ The process lasted long enough for a new order of expectation to grow, only to be rudely unsettled with the ending of hostilities. The Importation Act 1815 (better known as the Corn Law) involved no new principle in its imposition of a duty on imported corn until the price rose above a set level. But in raising that level from 66s to 80s it erected a barrier which had a real impact on the lowered prices of peace time. Forty years earlier, it had been the agricultural progressives who had sought free trade in corn and the manufacturers who had wanted protection. After 1815 their positions were reversed: the protection of corn became a...

Table of contents

• Cover
• Title Page
• Preface to the First Edition
• Preface to the Second Edition
• Contents
• List of Journal Abbreviations
• Table of Cases
• Table of Statutes
• CHAPTER ONE. INSTITUTIONS AND IDEAS
• CHAPTER TWO. LAND
• CHAPTER THREE. COMMERCE AND INDUSTRY
• CHAPTER FOUR. LABOUR RELATIONS
• CHAPTER FIVE. THE FAMILY
• CHAPTER SIX. POVERTY AND EDUCATION
• CHAPTER SEVEN. ACCIDENTS
• CHAPTER EIGHT. CRIME
• Bibliography and Suggestions for Further Reading
• Index
• Copyright Page