An Enquiry into the Causes of the late Increase of Robbers/Preface
THE
PREFACE.
There is nothing so much talked of, and so little understood in this Country, as the Constitution. It is a Word in the Mouth of every Man; and yet when we come to discourse of the Matter, there is no Subject on which our Ideas are more confused and perplexed. Some, when they speak of the Constitution, confine their notions to the Law; others to the Legislature; others, again, to the governing or executive Part; and many there are, who jumble all these together in one Idea. One Error, however, is common to them all: for all seem to have the Conception of something uniform and permanent, as if the Constitution of England partook rather of the Nature of the Soil than of the Climate, and was as fixed and constant as the former, not as changing and variable as the latter.
Now in this Word, The Constitution, are included the original and fundamental Law of the Kingdom, from whence all Powers are derived, and by which they are circumscribed; all legislative and executive Authority; all those municipal Provisions which are commonly called The Laws; and, lastly, the Customs, Manners, and Habits of the People. These, joined together, do, I apprehend, form the Political, as the several Members of the Body, the animal Oeconomy, with the Humours and Habit, compose that which is called the Natural Constitution.
The Greek Philosophy will, perhaps, help us to a better Idea: for neither will the several constituent Parts, nor the Contexture of the whole, give an adequate Notion of the Word. By the Constitution is, indeed, rather meant something which results from the Order and Disposition of the whole; something resembling that Harmony for which the Theban in Plato's Phædo contends; which he calls ἀόρατόν τι κὶ ἀσάμάτον, something invisible and incorporeal. For many of the Greeks imagined the Soul to result from the κρασις or Composition of the Parts of the Body, when these were properly tempered together, as Harmony doth from the proper Composition of the several Parts in a well tuned musical Instrument: In the same manner, from the Disposition of the several Parts in a State, arises that which we call the Constitution.
In this Disposition the Laws have so considerable a Share, that, as no Man can perfectly understand the whole, without knowing the Parts of which it is composed, it follows, that, to have a just Notion of our Constitution, without a competent Knowledge of the Laws, is impossible. Without this, the reading over our Historians may afford Amusement, but will very little instruct us in the true Essentials of our Constitution. Nor will this Knowledge alone serve our Purpose. The mere Lawyer, however skilful in his Profession, who is not versed in the Genius, Manners, and Habits of the People, makes but a wretched Politician. Hence the Historian, who is ignorant of our Law, and the Lawyer who is ignorant of our History, have agreed in that common Error, remarked above, of considering our Constitution as something fixed and permanent: for the exterior Form of Government (however the People are changed) still, in a great Degree, remains what it was; and the same, notwithstanding all its Alterations, may be said of the Law.
To explain this a little farther: From the Original of the Lower House of Parliament to this Day, the Supreme Power hath been vested in the King and the two Houses of Parliament. These Two Houses have, each at different Times, carried very different Weights in the Balance, and yet the Form of Government remained still one and the same: So hath it happened to the Law; the same Courts of Justice, the same Form of Trials, &c. have preserved the Notion of Identity, tho' in real Truth, the present Governing Powers, and the present legal Provisions, bear so little Resemblance to those of our Ancestors in the Reign of King John, or indeed in later Times, that could any Lawyer or Statesman of those Days be recalled to Life, he would make, I believe, a very indifferent Figure in Westminsterhall, or in any of the Parts there adjacent.
To perceive the Alterations in our Constitution, doth, in fact, require a pretty just Knowledge both of the People and of the Laws: for either of these may be greatly changed, without producing any immediate Effect on the other. The Alterations in the great Wheels of State above-mentioned, which are so visible in our Historians, are not noticed in our Laws, as very few of the great Changes in the Law have fallen under the Eye of our Historians.
Many of both Kinds have appeared in our Constitution; but I shall at present confine myself to one only, as being that which principally relates to the Subject of the following Treatise.
If the Constitution, as I above asserted, be the Result of the Disposition of the several Parts before mentioned, it follows, that this Disposition can never be altered, without producing a proportional Change in the Constitution. 'If the Soul,' says Simmias in Plato, 'be a Harmony resulting from the Disposition of the corporeal Parts, it follows, that when this Disposition is confounded, and the Body is torn by Diseases or other Evils, the Soul immediately (whatever be her Divinity) must perish.' This will be apparent, if we cast our Eyes a Moment towards the animal Oeconomy; and it is no less true in the political.
The Customs, Manners, and Habits of the People, do, as I have said, form one Part of the Political Constitution; if these are altered therefore, this must be changed likewise; and here, as in the Natural Body, the Disorder of any Part will, in its Consequence, affect the whole.
One known Division of the People in this Nation is into the Nobility, the Gentry, and the Commonalty. What Alterations have happened among the two former of these, I shall not at present enquire; but that the last, in their Customs, Manners, and Habits, are greatly changed from what they were, I think to make appear.
If we look into the earliest Ages, we shall find the Condition of this Third Part to have been very low and mean. The highest Order of this Rank, before the Conquest, were those Tenants in Socage, who held their Lands by the Service of the Plough; who, as Lyttleton tells us, 'were to come with their Plough for certain Days in the Year, to plow and sow the Demesne of the Lords;' as the Villains, saith the same Author, 'were to carry and recarry the Dung of his Lord, spread it upon his Land, and to perform such like Services.'
This latter was rightly accounted a slavish Tenure. The Villains were indeed considered in law as a kind of Chattle belonging to their Masters: for though these had not the Power of Life and Death over them, nor even of maiming them with Impunity, yet these Villains had not even the Capacity of purchasing Lands or Goods; but the Lord, on such Purchase, might enter into the one, and seize the other for his own Use. And as for the Land which they held in Villenage, tho' Lord Coke says, it was not only held at the Will of the Lord, but according to the Custom of the Manor; yet, in ancient Times, if the Lord ejected them, they were manifestly without Remedy.
And as to the former, tho' they were accounted Freemen, yet were they obliged to swear Fealty to their Lord; and tho' Mr. Rapin be mistaken, when he says they could not alienate their Land, (for before the Statute of Magna Charta, Chap. 32. they could have given or sold the whole, but without any Alteration of the Tenure) yet was the Estate of these but very mean. 'Tho' they are called Freemen,' says Lord Coke, 'yet they ploughed, harrowed, reaped, and mowed, &c. for the Lord;' and Bracton, Dicuntur Socmanni eo quod deputati sunt tantummodo ad culturam.
Besides such as were bound by their Tenures to the Service of Agriculture, the Number of Freemen below the Degree of Gentry, and who got their Livelihood in the Mercantile or Mechanical Way, was very inconsiderable. As to the Servants, they were chiefly bound by Tenure, and those of the lower Sort differed very little from Slaves.
That this Estate of the Commonalty is greatly changed, is apparent; and to this Alteration many Causes in subsequent Ages have contributed.
First, The Oath of Fealty, or Fidelity, which of old Time was administered with great Ceremony, became afterwards to be omitted; and though this Fealty still remained incident to every Socage Tenure, yet the Omission of the Form was not without its Consequences; for, as Lord Coke says, speaking of Homage, Prudent Antiquity did, for the more Solemnity and better Memory and Observation of that which is to be done, express Substances under Ceremonies.
2dly, Whereas in the antient Tenures the principal Reservation was of personal Services from the inferior Tenants, the Rent being generally trifling, such as Hens, Capons, Roses, Spurs, Hawks, &c. afterwards the Avarice or Necessity of the Lords incited them to convert these for the most part into Money, which tended greatly to weaken the Power of the Lord, and to raise the Freedom and Independency of the Tenant.
3dly, The dismembering Manors by Leases for Years, as it flowed from the same Sources, so it produced the same Effects. These were probably very rare before the Reign of Edward I. at which time the Statute of Glocester secured the Estate of this Tenant.
4thly, The Estate of the Villain or Copyholder seems clearly, as I have said, to have originally been holden only at the Will of the Lord; but the Law was afterwards altered, and in the Reign of Edward IV. some of the best Judges were of Opinion, that if the Copyholder was unlawfully ejected by his Lord, he should have an Action of Trespass against him at the Common Law.
From this Time the Estate of the Copyholder (which, as Briton tells us, was formerly a base Tenure) began to grow into Repute, and, though still distinguished in some Privileges from a Freehold, became the Possession of many opulent and powerful Persons.
By these and such like Means the Commonalty, by Degrees, shook off their Vassalage, and became more and more independent on their Superiors. Even Servants, in Process of Time, acquired a State of Freedom and Independency, unknown to this Rank in any other Nation; and which, as the Law now stands, is inconsistent with a servile Condition.
But nothing hath wrought such an Alteration in this Order of People, as the Introduction of Trade. This hath indeed given a new Face to the whole Nation, hath in a great measure subverted the former State of Affairs, and hath almost totally changed the Manners, Customers, and Habits of the People, more especially of the lower Sort. The Narrowness of their Fortune is changed into Wealth; the Simplicity of their Manners into Craft; their Frugality into Luxury; their Humility into Pride; and their Subjection into Equality.
The Philosopher, perhaps, will think this a bad Exchange, and may be inclined to cry out with the Poet,
Sævior armis
Luxuria incubuit.
Nullum crimen abest, facinusque libidinis, ex quo
Paupertas Romana perît.
Again,
Prima peregrinos obscæna pecunia mores
Intulit, & turpi fregerunt sæcula luxu
Divitiæ molles.
But that Politician finds many Emoluments to compensate all the moral Evils introduced by Trade, by which the Grandeur and Power of the Nation is carried to a Pitch that it could never otherwise have reached; Arts and Sciences are improved, and human Life is imbellished with every Ornament, and furnished with every Comfort which it is capable of tasting.
In all these Assertions he is right: but surely he forgets himself a little, when he joins the Philosopher in lamenting the Introduction of Luxury as a casual Evil; for as Riches are the certain Consequence of Trade, so is Luxury the no less certain Consequence of Riches: nay, Trade and Luxury do indeed support each other; and this latter, in its Turn, becomes as useful to Trade as Trade had been before to the Support of Luxury.
To prevent this Consequence therefore of a flourishing Commerce is to tally to change the Nature of Things, and to separate the Effect from the Cause. A Matter as impossible in the Political Body as in the Natural. Vices and Diseases, with like physical Necessity, arise from certain Habits in both; and to restrain and palliate the evil Consequences, is all that lies within the Reach of Art. How far it is the Business of the Politician to interfere in the Case of Luxury, we have attempted to shew in the following Treatise.
Now, to conceive that so great a Change as this in the People should produce no Change in the Constitution, is to discover, I think as great Ignorance as would appear in the Physician who should assert, that the whole State of the Blood may be entirely altered from poor to rich, from cool to inflamed, without producing any Alteration in the Constitution of the Man.
To put this in the clearest Light: There appear to me to be Four Sorts of Political Power; that of bodily Strength, that of the Mind, the Power of the Purse, and the Power of the Sword. Under the Second of these Divisions may be ranged all the Art of the Legislator and Politician, all the power of Laws and Government. These do constitute the Civil Power; and a State may then be said to be in good Order, when all the other Powers are subservient to this; when they own its superior Excellence and Energy, pay it a ready Obedience, and all unite in Support of its Rule.
But so far are these Powers from paying such voluntary Submission, that they are all extremely apt to rebel, and to assert their own Superiority; but none is more rebellious in its Nature, or more difficult to be governed than that of the Purse or Money. Self-opinion, Arrogance, Insolence, and Impatience of Rule, are its almost inseparable Companions.
Now if these Assertions are true, what an immense Accession of this Power hath accrued to the Commonalty by the Increase of Trade? for tho' the other Orders have acquired an Addition by the same Means, this is not in the same Proportion, as every Reader, who will revolve the Proposition but a Moment in his own Mind, must be satisfied.
And what may we hence conclude? Is that Civil Power, which was adapted to the Government of this Order of People in that State in which they were at the Conquest, capable of ruling them in their present Situation? Hath this Civil Power kept equal Pace with them in the Increase of its Force, or hath it not rather, by the Remissness of the Magistrate, lost much of its antient Energy? Where is now that Power of the Sheriff, which could formerly awaken and arm a whole County in an Instant? Where is that Posse Comitatus, which attended at his Beck? What is become of the Constitutions of Alfred, which the Reader will find let forth at large in the following Treatise? What of the antient Conservators of the Peace? Have the Justices, on whom this whole Power devolves, an Authority sufficient for the Purpose? In some Counties, perhaps, you may find an overgrown Tyrant, who lords it over his Neighbours and Tenants with despotic Sway, and who is as regardless of the Law as he is ignorant of it; but as to the Magistrate of a less Fortune, and more Knowledge, every riotous independent Butcher or Baker, with two or three thousand Pounds in his Pocket, laughs at his Power, and every Pettyfogger makes him tremble.
It is a common and popular Complaint, that the Justices of Peace have already too much Power. Indeed a very little is too much, if it be abused, but, in truth, this Complaint proceeds from a Mistake of Business for Power: The Business of the Justice is indeed multiplied by a great Number of Statutes; but I know not of any (the Riot Act perhaps excepted) which hath at all enlarged his Power. And what the Force of that Act is, and how able the Magistrate is, by means of the Civil Power alone, to execute it in any popular Commotion, I have myself experienced. But when a Mob of Chairmen or Servants, or a Gang of Thieves and Sharpers, are almost too big for the Civil Authority to suppress, what must be the Case in a seditious Tumult, or general Riot of the People?
From what hath been said, I may, I think, conclude, that the Constitution of this Country is altered from its antient State.
2dly, That the Power of the Commonalty hath received an immense Addition; and that the Civil Power having not increased, but decreased, in the same Proportion, is not able to govern them.
What may and must be the Consequence of this, as well as what Remedy can be applied to it, I leave to the Consideration of others: I have proceeded far enough already on the Subject, to draw sufficient Ill-will on myself, from unmeaning or ill-meaning People, who either do not foresee the mischievous Tendency of a total Relaxation of Government, or who have some private wicked Purpose to effect from public Confusion.
In plain Truth, the principal Design of this whole Work, is to rouse the CIVIL Power from its present lethargic State. A Design which alike opposes those wild Notions of Liberty that are inconsistent with all Government, and those pernicious Schemes of Government, which are destructive of true Liberty. However contrary indeed these Principles may seem to each other, they have both the same common Interest; or rather, the former are the wretched Tools of the latter: for Anarchy is almost sure to end in some Kind of Tyranny.
Dr. Middleton, in his Life of Cicero, hath a fine Observation to my present Purpose, with which I will conclude this Preface.
'From the Railleries of the Romans,' (says he) 'on the Barbarity and Misery of our Island, one cannot help reflecting on the surprising Fate and Revolutions of Kingdoms: how Rome, once the Mistress of the World, the Seat of Arts, Empire and Glory, now lies sunk in Sloth, Ignorance and Poverty; enslaved to the most cruel, as well as to the most contemptible of Tyrants, Superstition and Religious Imposture; while this remote Country, anciently the Jest and Contempt of the polite Romans, is become the happy Seat of Liberty, Plenty, and Letters; flourishing in all the Arts and Refinements of Civil Life; yet running perhaps the same Course, which Rome itself had run before it; from virtuous Industry to Wealth; from Wealth to Luxury; from Luxury to an Impatience of Discipline and Corruption of Morals; till by a total Degeneracy and Loss of Virtue, being grown ripe for Destruction, it falls a Prey at last to some hardy Oppressor, and, with the Loss of Liberty, losing every thing else, that is valuable, sinks gradually again into its original Barbarism.'