The Online Library of Liberty

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• Preface to the First Edition
• Preface to the Second Edition
• Introduction to the Second Edition
• Aim of Introduction
• (a): Legislative Opinion At the End of the Nineteenth Century
• (b): Course of Legislation From Beginning of Twentieth Century
• (c): the Main Current of Legislative Opinion From the Beginning of the Twentieth Century
• (d): Counter-currents and Cross-currents of Legislative Opinion From the Beginning of the Twentieth Century 2
• Conclusions
• Lectures On the Relation Between Law and Public Opinion In England
• Lecture I: The Relation Between Law and Public Opinion
• Lecture II: Characteristics of Law-making Opinion In England
• Lecture III: Democracy and Legislation
• Lecture IV: The Three Main Currents of Public Opinion
• Lecture V: The Period of Old Toryism Or Legislative Quiescence (1800-1830)
• Lecture VI: The Period of Benthamism Or Individualism 1
• Lecture VII: The Growth of Collectivism
• Lecture VIII: The Period of Collectivism
• Lecture IX: The Debt of Collectivism to Benthamism
• Lecture X: Counter-currents and Cross-currents of Legislative Opinion
• Lecture XI: Judicial Legislation
• Lecture XII: Relation Between Legislative Opinion and General Public Opinion
• Appendix
• Note I: The Right of Association
• Note II: The Ecclesiastical Commission
• Note III: University Tests
• Note IV: Judge-made Law
• A Selection of Works On Politics

(A)

Legislative Opinion at the end of the Nineteenth Century

Let the reader who wishes to realise the difference between legislative opinion during the period of Benthamite liberalism and legislative opinion at the end of the nineteenth century first read and consider the full effect of a celebrated passage taken from Mill’s Essay On Liberty, and next contrast it with the description of legislative opinion in 1900 to be gathered from Lectures VII. and VIII. of the present treatise.1

“The object of this Essay,” writes Mill in 1859, “is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warranty. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right.”

“These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.”1

The importance of this “simple principle,” whatever its intrinsic worth, arises from the fact that at the time when it was enunciated by Mill it obtained, at any rate as regards legislation, general acceptance, not only by youthful enthusiasts, but by the vast majority of English Liberals, and by many Liberal Conservatives. It gave logical expression to convictions which, though never followed out with perfect consistency, were shared by the wisest among the writers and the statesmen who, in the mid-Victorian era, guided the legislative action of Parliament. In regard to interference by law with the liberty of individual citizens, it is probable that a Benthamite Radical, such as John Mill conceived himself to be, differed little from a Whig, such as Macaulay, who certainly did not consciously subscribe to the Benthamite creed,2 and it is probable that the late Lord Salisbury (then Lord Robert Cecil) would not on this matter have disagreed essentially with either the typical Benthamite or the typical Whig.

Mill himself tacitly, though grudgingly, admitted that there was little in the law of England which in 1859 encroached upon individual liberty. The object of his attack was the alleged tyranny, not of English law, but of English habits and opinion. Macaulay laid down no rigid rule limiting the sphere of State intervention, but he clearly held that, as a matter of common sense, government had better in general undertake little else than strictly political duties. English statesmanship was at the middle of the Victorian era, in short, grounded on the laissez faire of common sense. From this principle were drawn several obvious inferences which to enlightened English politicians seemed practically all but axiomatic. The State, it was thought, ought not as a matter of prudence to undertake any duties which were, or which could be, performed by individuals free from State control. Free trade, again, was held to be the only policy suitable for England, and probably the only policy which would in the long run benefit the inhabitants of a modern civilised State. It was further universally admitted that for the Government, or for Parliament, to fix the rate of wages was as futile a task as for the State to undertake to fix the price of bread or of clothes. In harmony with these views one principle was not only accepted but rigidly carried out by every Chancellor of the Exchequer according to his ability; it was that taxation should be imposed solely for the purpose of raising revenue, and should be imposed with absolute equality, or as near equality as was possible, upon rich and poor alike. Hence the ideal Chancellor of the Exchequer was the man who, after providing for the absolutely necessary expenditure of the State, so framed his Budget as to leave the largest amount possible of the national wealth to “fructify,” as the expression then went, “in the pockets of the people.” Gladstone exactly satisfied this ideal. In 1859, hardly any man who occupied a prominent position in public life (except here and there a few belated Protectionists, among whom Disraeli must not be numbered) dissented greatly from Mill’s simple principle, at any rate as regards legislation. In other words, Benthamite liberalism, as interpreted by the rough common sense of intelligent politicians, was, when Mill published his treatise On Liberty, the predominant opinion of the time.1

Contrast now with the dominant legislative opinion of 1859 the dominant legislative opinion of 1900, as described in Lectures VII. and VIII.2 The general effect of these lectures may be thus summed up: The current of opinion had for between thirty and forty years been gradually running with more and more force in the direction of collectivism,1 with the natural consequence that by 1900 the doctrine of laissez faire, in spite of the large element of truth which it contains, had more or less lost its hold upon the English people. The laws affecting elementary education, the Workmen’s Compensation Act of 1897, the Agricultural Holdings Acts, the Combination Act of 1875, the whole line of Factory Acts, the Conciliation Act, 1896, and other enactments dwelt upon in the lectures to which I have referred, though some of them might be defended on Benthamite principles, each and all if looked at as a whole prove that the jealousy of interference by the State which had long prevailed in England had, to state the matter very moderately, lost much of its influence, and that with this willingness to extend the authority of the State the belief in the unlimited benefit to be obtained from freedom of contract had lost a good deal of its power. It also was in 1900 apparent to any impartial observer that the feelings or the opinions which had given strength to collectivism would continue to tell as strongly upon the legislation of the twentieth century as they had already told upon the later legislation of the nineteenth century.2 To any one further who had studied the weight given to precedent by English Parliaments, no less than by English Courts, it must have been, or perhaps rather ought to have been, certain in 1900 that legislation already tending towards collectivism would in the earlier years of the twentieth century produce laws directly dictated by the doctrines of collectivists, and this conclusion would naturally have been confirmed by the fact that in the sphere of finance there had occurred a revival of belief in protective tariffs, then known by the name of a demand for “fair trade.” With the perennial controversy between free-traders and protectionists a student of law and opinion has no necessary concern; he may however note that socialism and protection have one feature in common: they both rest on the belief that the power of the State may be beneficially extended even though it conflicts with the contractual freedom of individual citizens. The protectionist and the socialist each renounces the trust in laissez faire. From whatever point of view our subject be looked at, we reach the conclusion that by 1900 the doctrine of laissez faire had already lost its popular authority.

[1 ]See pp. 211-302, post.

[1 ]Mill, On Liberty, pp. 21 and 22.

[2 ]Compare Mill, On Liberty, with Macaulay’s review of Gladstone on Church and State. Mill indeed entertained in his later life a sympathy with socialistic ideals foreign to Macaulay’s whole mode of thought. Leslie Stephen, English Utilitarians, iii. pp. 224-237.

[1 ]It is a curious question how far Bentham’s own beliefs were directly or logically opposed to the doctrines of sane collectivism. He placed absolute faith in his celebrated “Principle of Utility.” He held that, at any rate in his time, this principle dictated the adoption of a policy, both at home and abroad, of laissez faire. But it is not clear that Bentham might not in different circumstances have recommended or acquiesced in legislation which an ardent preacher of laissez faire would condemn. (See Lect. IX. p. 303, post.) It may be suggested that John Mill’s leaning towards Socialistic ideals, traceable in some expressions used by him in his later life, was justified to himself by the perception that such ideals were not necessarily inconsistent with the Benthamite creed, which was his inherited, and to his mind unforsaken faith. See pp. 426-432, post.

[2 ]See pp. 211-302, post

[1 ]Compare especially Lect. IV. pp. 64-69, and Lect. IX. p. 303, post.

[2 ]See pp. 259-279, post.