The Rise and Fall of England: 5. Liberty and Property Secured

Dr. Carson, Professor of History at Grove City College, Pennsylvania, will be remembered for his earlier FREEMAN series, The Fateful Turn, The American Tradition, and The Flight from Reality.

With this power of creation and this passion for independence, property has reached an ideal perfection. It is felt and treated as the national life-blood. The laws are framed to give property the securest possible basis, and the provisions to lock and trans­mit it have exercised the cunningest heads in a profession which never admits a fool. The rights of property nothing but felony and treason can override. The house is a castle which the king cannot enter. The Bank is a strong box to which the king has no key. Whatever surly sweetness possession can give, is tasted in England to the dregs….

RALPH WALDO EMERSON, ¹847

Now a considerable proportion of the law defining the rights of the individual and delimiting the power of the state over him was constructed in the eighteenth century….

E. NEVILLE WILLIAMS

The intellectual thrust to liberty and a government with its powers counterbalanced eventually bore fruit in the form of practical lib­erties protected by law. These protections to and extensions of lib­erty were mainly the work of the Whig Party acting in Parliament and of judicial interpretations by the courts, though others played some part in it. The great age of the expansion of English liberties falls generally within the years from the adoption of the Bill of Rights in 1689 to the final repeal of the Navigation Acts in 1849, the latter culminating a long effort to establish free trade. This pro­longed movement to secure liberty and property runs parallel with England’s rise to greatness and world leadership, a parallel that is hardly an accident. The progres­sive expansion of liberty released the energies of the English people for the role they were to play.

To appreciate the growth of lib­erty, it will be useful to view it in contrast to the oppression which preceded it. Since a general survey of this subject has already been presented, it is only necessary here to make a summary presentation of the state of liberty, or oppres­sion, as it was in 1688 prior to the onset of great changes.

In 1688 religious intolerance and oppression was still fully es­tablished. Not only was there an established church, but also dis­senters and Roman Catholics were prohibited to exercise their reli­gion, barred from political partici­pation (by the Test Act), and otherwise underprivileged by law. Government by law was continu­ally threatened by monarchical suspension of laws. Publishing was hampered and restricted by licensing requirements, by censor­ship, by virtual monopolies grant­ed to certain printers, and by strenuous laws against libel. Prop­erty was hardly an individual pos­session, since its use was ham­pered by all sorts of restrictions and limitations inherited from a long past. Laws still prohibited en­closure; guild and apprenticeship regulations hampered the entering of trades; monopolies granted by government shut off commerce to newcomers; and export and im­port taxes stood in the way of trade. Medieval relics and mercan­tilistic interventions smothered in­itiative and placed heavy burdens upon enterprise. Freedom of speech, press, of the use of one’s faculties, and protections for the constructive use of one’s property were still forlorn ideals.

Gradual Changes Linked with the English Heritage

It is not practical in the short scope offered here to recount in detail the story of the successful struggle for liberty that occurred over a century and a half. That would require a book, at the least. It will be possible here to touch only a few of the high points, to indicate some general trends, and to suggest how it was accom­plished. In general, it should be pointed out that the establishment of liberty and protection of prop­erty in England was not accom­plished by drastic changes or revo­lution. On the contrary, it was achieved by gradual changes within the context of the English her­itage.

The movement falls very rough­ly into three periods: first, the Glorious Revolution and a decade or so after, from around 1689 to the early 1700′s; second, a slow growth and expansion spread over much of the eighteenth century, followed by some reactionary measures during the French Revo­lution and Napoleonic Wars; third, a new surge in the second quarter of the nineteenth century.

It is important to note, too, that the thrust to liberty embraced the whole spectrum of liberties, rang­ing from freedom of the press to the securing of property to indi­viduals. One writer calls attention to the phenomenon in this way: "It should be emphasized… that the press was an integrated part of the entire social organism af­fecting and being affected by the society of which it was a part. For example, the decline of govern­ment controls in the eighteenth century parallels the growth of private enterprise capitalism and the increase in democratic process­es in government…. All three were inextricably interrelated."¹ That liberty is all of a piece ap­pears to be borne out by historical tendency.

One other general point needs to be made before surveying the highlights of the securing of lib­erty and property. Historians fre­quently write as if there were some close connection between the degree of political participation by the people and the extent of lib­erty. It is true that a popularly based government may be limited in its exercise of power by the electorate. But this is not neces­sarily the case, as evidenced by the existence of numerous despotic governments in the twentieth cen­tury which nonetheless have uni­versal suffrage. The connection be­tween political democracy and lib­erty does not appear sufficiently close to warrant discussing the two together or including in this study an account of the movement for and extension of the franchise.

Toleration Act of 1689

The confines of government power were greatly loosened to al­low much greater individual lib­erty by the Glorious Revolution of 1689 and the acts of the next few years following that event. Re­ligious toleration, of sorts, was es­tablished by the Toleration Act of 1689. This act was of particular benefit to Protestant dissenters, for they were not only relieved of penalties for observing their faith but also permitted to hold meet­ings, to have their clergy, and to carry on many of the activities hitherto reserved to conformists. However, they still suffered cer­tain disabilities for their noncon­formity, i. e., exclusion from polit­ical participation by the Test Act, the payment of taxes for support of the Church of England, among others. Such toleration was not extended to Roman Catholics or to non-Trinitarians.2 In practice, however, there was considerably more toleration after this than the law allowed, if strictly interpreted. Religious enthusiasm abated in the eighteenth century, and with it the desire to persecute in matters of faith and observance. The way to remove disabilities was even made easy for those who would go through the motions of conform­ity.

A long stride toward establish­ing freedom of the press was made in 1695 when the House of Com­mons refused to renew the Print­ing Act. This Act had embodied a variety of evils including licens­ing requirements, a virtual monop­oly to the Stationers Company, re­straints on the import of foreign books, a special privilege of print­ing to one gentleman, and so on.3 Of the general conditions that prevailed after the lapsing of this act, one writer says: "At the close of the seventeenth century several important trends in the liberation of the press can be discerned. The prerogative powers of the crown were gone forever. The licensing requirements had been abolished, and the printing trade was at last free from commercial regulation. The powers of the Stationers Com­pany as a trade monopoly had been finally smashed."4 While there were still some restrictions on free expression, such as for libel and sedition, England was very near to having a free press.

Rights of Individuals

The Glorious Revolution also set the stage for greater protections to the individual from arbitrary imprisonment. Not only was the monarch restrained in this regard but also the courts adopted new rules and procedures which re­moved much of the arbitrariness from trials and punishment. The Bill of Rights prohibited cruel and unusual punishments, and men were no longer flogged to death. Also, no more women were burned alive after 1688. "After 1696 two witnesses had to be produced against the accused in treason trials; the accused were entitled to full use of counsel, and to a copy of the indictment, together with a list of crown witnesses and of the jury. In 1697 the last Act of Attainder in English history was passed…. Judges began to protect even Quakers from the Church courts…. The inadmissibility of hearsay evidence…. at last won general acceptance after 1688."5

However, the penalties prescribed as punishment for crimes were still quite harsh. It was not until 1736 that witchcraft ceased to be a crime. Moreover, following the Glorious Revolution and through much of the eighteenth century there was a great increase in the number of crimes for which the death penalty was prescribed. This was particularly true for stealing. From one point of view, these harsh penalties indicate a determined effort to protect prop­erty. As one writer says, "There was a tendency in William’s reign for the law to be made more sav­age in protection of private prop­erty. Statutes made shoplifting and the stealing of furniture by lodgers punishable by death."6 Debtors’ laws were tightened as well. "By the end of George II’s reign no less than 160 felonies had been declared worthy of instant death…, among them being such minor offences as sheep-stealing, cutting down a cherry-tree…, and petty larcenies from dwelling-houses, shops, or the person."7 The aim of this legislation may have been quite laudable. The pop­ulation was increasing as was its mobility. There existed no regular police for the protection of prop­erty, and there was much deter­mination that property should be respected. However, the harshness of the laws frequently led juries not to convict. In consequence, rather than the absolute protec­tion of property as intended, there was a resulting uncertainty as to punishment.

Trade Restraints Lifted

A much clearer benefit of the Glorious Revolution was the great reduction of the obstacles to trade and business. There followed a great assault upon chartered mo­nopolies and special trading priv­ileges. " ‘Trade,’ Parliament de­clared in 1702, ‘ought to be free and not restrained.’ In 1701 a Chief Justice said that royal grants and charters in restraint of trade were generally void because of ‘the encouragement which the law gives to trade and honest in­dustry.’ Such charters were ‘con­trary to the liberty of the subject.’ "8 Nor were these empty words. T. S. Ashton says, "In 1689 the Merchant Adventurers were shorn of most of their powers, and ordinary Englishmen became free to export cloth to all but certain reserved areas. In 1698 it was en­acted that anyone might trade with Africa…. And in the fol­lowing year commerce with Russia and Newfoundland was de­clared open to all." Some monop­olies persisted (and the Naviga­tion Acts still bound colonial trade), but "most of the field lay open to competition."9 There fol­lowed a great surge in trade and commerce.

For much of the eighteenth cen­tury, the extension of liberty was gradual and undramatic. Fre­quently, it occurred as a result of nothing more than failing to en­force restrictive legislation. For example, there existed authority for fixing wages and prices, but little positive (or negative) action came of this power. Or, the effects of a law might be ameliorated without actually repealing the law. For example, from 1743 onward an Indemnity Act was passed an­nually by Parliament allowing re­ligious nonconformists an exten­sion of time to qualify politically under the Test Act. One writer observes that as many as two-thirds to three-quarters "of those employed in all branches of the public service had never complied with the law — some had never even heard of it; and Lord Gode­rich informed the House of Lords that he had never been called upon to qualify till he was made Chan­cellor of the Exchequer…."¹º The British were hardly in an experi­mental mood so far as legislation was concerned for much of the eighteenth century.

Private Ownership of Land

There was, however, a major de­velopment during that century in the matter of private property in land. It is known as the movement for enclosure of lands. Much of the farm land of England was still un­enclosed at the beginning of the eighteenth century. This meant, in effect, that such farms were not consolidated units under the con­trol of a single farmer. On the contrary, the land was divided into small strips, and one man’s hold­ings would consist of a number of such strips dispersed among the holdings of others. The problem was further complicated by the existence of Commons — pasture, woods, or idle lands to which those who lived on an estate claimed common privileges in its use. These arrangements, which were relics of medieval organization, were major obstacles to the effec­tive use of the land. It was very difficult to introduce improvements in farming techniques, in seed, or in pasture use. Any change in the way the land was utilized would affect the privileges of others. In short, most of the advantages of private property were missing.

Prior to the eighteenth century, sporadic efforts at enclosure had been going on for two centuries or more. But whenever they occurred, a hue and cry was usually raised against them. They were blamed for depopulating the countryside, for making the lot of the poor harder, and for upsetting the so­cial arrangements of England. Parliament passed various acts of a general nature to inhibit en­closures. Any exception, to per­mit enclosure, required a special act of Parliament. These, however, became increasingly easy to ob­tain in the eighteenth century. One historian summarizes the progress in this way: "And their number increased year by year as time went on: there were three Acts only in the twelve years of the reign of Queen Anne; from 1714 to 1720, about one every year. During the first half of the century the progress, though grad­ual, became more marked: thirty-three Acts between 1720 and 1730, thirty-five between 1730 and 1740, thirty-eight between 1740 and 1750. From 1750 to 1760 we find one hundred and fifty-six such Acts; from 1760 to 1770 four hun­dred and twenty-four; from 1770 to 1780 six hundred and forty-two…. while between 1800 and 1810 the total reached was… an unprecedented… nine hundred and six Acts…"¹¹

An Act of Enclosure spelled out the procedures by which the an­cient titles to strips of land and privileges to the use of Commons could be extinguished and these lands be consolidated into individ­ually owned farms. For example, if an individual had title to thirty dispersed strips of land consisting of one acre each, he might receive a thirty-acre farm plus his por­tion of the land used in common, perhaps ten acres more. Mantoux says, "In fact, all this was tanta­mount to a revolution throughout the parish — the land being, so to speak, seized and dealt out again among the landowners in an en­tirely new manner, which, how­ever, was to leave untouched the former rights of each of them."¹²

By this means, then, lands were widely brought under private own­ership and control. There was, in addition, much consolidation of holdings by purchase." One effect of all this was not long in being felt in England: much increase in agricultural productivity.

Labor Relations

There were some important changes affecting employers and workers in the last years of the eighteenth and in the early years of the nineteenth century. A major obstacle to technological change was the attitude of work­ers to new machines and tech­niques. There were a considerable number of riots in the latter part of the eighteenth century in which machinery was broken up and sab­otage by workers occurred. Earlier in English history the government had actually intervened on occa­sion to prohibit the introduction of new techniques. Now, however, the government no longer opposed new machinery, and acts were passed for the suppression of such riotous and destructive activities. Government forces were used to protect property and allow manu­facturers to make innovations on many occasions.¹} In 1799, the famous (or infamous) Combina­tion Act was passed, to be followed the next year by a modified act along the same lines. "The Act of 1799 laid down that any person who joined with another to obtain an increase of wages or a reduc­tion of hours might be brought before a magistrate and, on con­viction, sentenced to three months in prison."" The Act itself may have been unjust, but it illustrates the determination to leave deci­sions to individuals. In 1813, a clause of an Elizabethan Act em­powering Justices of the Peace to fix wages was finally dispensed with.¹6 In 1814, the Statute of Ap­prentices was repealed, and most of the obstacles to the entry into a trade were removed. "And with the repeal in 1824 of the Spital­fields Act of 1773, which had pro­vided agreed wage rates in the un­economic silk industry, legislative interference with wages vanished completely until 1909."¹7

Progress to 1850

The movement toward the es­tablishment of individual liberty did not, of course, always proceed in a nice straight line over the years, with no detours or reversions to the old ways. There was considerable repression of some liberties during the period of the French Revolution and the Era of Napoleon. There was much fear among the English political lead­ers that the revolution in France would take root and spread in England. Still, the general tend­ency over the years was in the di­rection of the expansion of liberty.

The last great surge of that movement got under way in the 1820′s and continued to the 1850′s, or thereabouts. Under the impulse of the ideas of such men as Adam Smith, David Ricardo, Jeremy Bentham, Richard Cobden, and John Bright, among others, and following the political leader­ship of such men as Robert Peel, the remaining obstacles to individ­ual liberty and free use of private property were largely swept away during these years. The Test and Corporation Acts were repealed in 1828, virtually removing the polit­ical disabilities of Protestant dis­senters. Of course, dissenters had to consent to the continued ex­istence of the established Church of England, but they were now otherwise free. An Act emancipat­ing Roman Catholics was passed in 1829; Catholics could now serve in political office legally.

In the wake of vaunted elector­al reforms of 1832, some impor­tant blows were struck for lib­erty. An act of Parliament in 1833 provided for the abolition of slav­ery in the British colonies. There was an attempt to accomplish this great reform with as little damage to vested interests and property as possible. Twenty million pounds were paid in compensation to West Indian slaveholders. In addition, complete abolition was to be achieved over a period of years. "All Negro children under six were to be unconditionally free after the passage of the act, but those over six were to be held in apprenticeship…. If all their wages were kept by their ‘employ­ers,’ the apprentices could earn their freedom in seven years." In the same year, too, the East India Company lost its last monopoly, that of the China trade, and the Bank of England lost its monopoly of joint-stock banking.¹8

Repeal of the Corn Laws

There is much else that could be told, but it will suffice to con­clude this summary of the high-points of the securing of liberty and property by discussing the establishment of free trade. Mer­cantilism died hard in England, and the last aspect of it to be cut away was the protectionism of tariffs and related interventions. The most famous of the tariffs were the Corn Laws. They acquired such great fame because an Anti-Corn Law League was or­ganized in 1839 under the leader­ship of Richard Cobden; the League mounted such an attack upon these laws that their repeal was a cause celebre. Historians, too, have generally made the re­peal of these laws the symbol of the triumph of free trade.

The Corn Laws were the result of enactments on a number of oc­casions in the seventeenth and eighteenth centuries. Their object was to encourage the export of wheat and other grains and to dis­courage the importing of grains. More broadly, they were a part of a mercantilistic effort to increase exports and decrease imports. To effect this, a bounty was some­times paid on grain exported while tariffs discouraged imports. Adam Smith charged that these laws aimed "to raise the money price of corn as high as possible, and thereby to occasion, as much as possible, a constant dearth in the home market."¹9

To Help the Poor

It was, as can readily be seen, a particularly good place to launch an assault against protection. The tendency of such protection, if it fulfilled its aim, would be to drive up the price of bread in England.

And even the poorest of men will generally have bread. Important changes were made in the Corn Laws in the 1820′s, along with other tariff reductions. However, it was not until the 1840′s that the work was finished.

In 1845, 430 articles were re­moved from the tariff lists, and other duties greatly reduced. In 1846, the hated Corn Laws were finally repealed. In a mopping up exercise, the Navigation Acts also were repealed.²º One economic his­torian describes the upshot of these developments in this way: "In a broad view the repeal was the coping stone of the edifice of free trade; it marked the final stage in the struggle against mer­cantilism. Henceforth for nearly a hundred years England dis­carded the system of economic na­tionalism… in favour of interna­tional co-operation."²¹

It should be clear that much of the work of securing liberty and property in England consisted of what would nowadays be called negative actions, of the removal of privileges, of the repeal of laws, of the withdrawal of intervention, of allowing restrictive legislation to lapse, and so forth. Yet the impact was far from negative. Just as land can be irrigated by open­ing the sluice gates of a dam which has held the water in con­finement, so the energies of a peo­ple can be released by removing the restrictions. It was so for the English. As the water in an irri­gation ditch rises when the sluice gates are opened, so rose England to greatness as the restrictive leg­islation was repealed.

The next article of this series will discuss "The Moral Base" for England’s rise.

 

—FOOTNOTES—

¹ Frederick S. Siebert, Freedom of the Press in England (Urbana: Univer­sity of Illinois Press, 1965), p. vi.

² See E. Neville Williams, ed., The Eighteenth Century Constitution (Lon­don: Cambridge University Press, 1960), pp. 42-46.

3 See ibid., pp. 399-401.

4 Siebert, op. cit., pp. 301-02.

5 Christopher Hill, The Century of Revolution (New York: W. W. Norton, 1966), p. 290.

6 Ibid., p. 289.

7 Basil Williams, The Whig Supremacy (London: Oxford University Press, 1942), p. 60.

8 Hill, op. cit., pp. 263-64.

9 T. S. Ashton, An Economic History of England: The Eighteenth Century (London: Methuen, 1955), p. 130.

¹0 William L. Mathieson, England in Transition (London: Longmans, Green, and Co., 1920), p. 236.

1¹ Paul Mantoux, The Industrial Rev­olution in the Eighteenth Century (Lon­don: Jonathan Cape, 1961, new and rev. ed.), pp. 141-42.

¹2 Ibid., p. 168.

¹³¹ See ibid., p. 172.

¹4 Ibid., pp. 400-08.

¹5 T. S. Ashton, The Industrial Revo­lution (New York: Oxford University Press, a Galaxy Book, 1964), p. 93.

16 Mantoux, op. cit., p. 456.

¹7 R. K. Webb, Modern England: From the Eighteenth Century to the Present (New York: Dodd, Mead, and Co., 1968), p. 153.

¹8 Ibid., p. 219.

19 Quoted in Ashton, An Economic History of England, p. 49.

20 See Gilbert Slater, The Growth of Modern England (London: Constable and Co., 1939), p. 614.

21 E. Lipson, The Growth of English Society (London: A and C Black, 1959), p. 317.

 

***

The Power of an Idea

The free-trade campaign started under the most difficult odds. Four-fifths of the Members of Parliament represented landlords benefiting from protection — even though the average farmer and the farm laborer did not. The Chartist movement also opposed Corn Law repeal, charging that the League wanted the reform in order to reduce wages. Nevertheless, as a result of Cobden’s energy, Bright’s eloquence, and the influence of Adam Smith and his disciples, Parliament finally repealed the Corn Laws in 1846 —under the leadership of the great Tory statesman, Robert Peel. Britain now gradually abandoned protectionism in favor of free trade….

As a result Great Britain now entered into its greatest period of prosperity, which lasted, except for cyclical interruptions, until World War I. Large areas of the world profited materially. The British workers profited as much as the employers.

RAYMOND LESLIE BUELL, in Fortune, May, ¹942