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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

(C)

The Main Current of Legislative Opinion from the beginning of the Twentieth Century

The main current of legislative opinion from the beginning of the twentieth century has run vehemently towards collectivism.

When the last century came to an end belief in laissez faire had lost much of its hold on the people of England. The problem now before us is to ascertain what are the new causes or conditions which since the beginning of the present century have in England given additional force to the influence of more or less socialistic ideas.1 These causes may be thus summed up:

1.The Existence of Patent Facts which impress upon ordinary Englishmen the Interdependence2ofPrivate and Public Interest. — Mill’s “simple principle”1 depends wholly upon the assumption that in a civilised country, such as England or France, the conduct of an individual may be strictly divided into conduct which concerns or interests himself alone, and conduct which concerns mainly the State or, in other words, his neighbours. It is also tacitly assumed by Mill that by far the greater portion of the conduct pursued by an ordinary and well-meaning citizen concerns mainly himself, and that therefore by far the greater part of such a man’s action ought to be guided by his own opinion or judgment, and certainly ought not to be interfered with by the force of law.2 But since 1859 almost every event which has happened has directed public attention to the extreme difficulty, not to say the impossibility, of drawing a rigid distinction between actions which merely concern a man himself and actions which also concern society. The perplexity indeed of modern law-makers, as indeed of the public, has been of late indefinitely increased by several circumstances, each of which tends to blur the distinction between matters which concern only an individual and matters which concern the public.

Thus the whole course of trade tends rapidly to place the conduct of business in the hands of corporate or quasi-corporate bodies. The railway companies, for instance, of England are wholly in the hands of masses of shareholders who for some legal purposes may well be considered one person, though they constitute in reality many thousands of persons, and of persons who in practice never take any effective part in the management of the concerns from which they derive their income. These companies, moreover, carry on a business the successful management whereof assuredly affects the prosperity, and even the safety, of the United Kingdom. Hence the antithesis between the individual and the State is with difficulty maintainable. A modern strike again, whether it be a strike against one employer, or a body of employers, turns out more often than not to involve social or public interests. But when once this is granted the application of Mill’s simple principle becomes no easy matter. An impartial observer may doubt whether the principle itself can really govern the complex transactions of modern business.

The advance, again, of human knowledge has intensified the general conviction that even the apparently innocent action of an individual may injuriously affect the welfare of a whole community. The first man who carried a few rabbits with him to Australia and set them loose there to propagate their offspring at will, was no criminal; he no doubt felt that he was doing a thing beneficial to himself, and, if he thought about his neighbours at all, not injurious to the public. But few malefactors have ever given more trouble to, and imposed more expense upon, a respectable community than this ill-starred importer of rabbits brought upon his adopted country. Almost every addition, again, to that sort of knowledge, which is commonly called science, adds to the close sense of the interdependence of all human interests. The discovery, for instance, that the health of a nation depends, or may depend, on the general observation of certain rules of health, not only increases this sense of interdependence but also suggests that the fancies, the scruples, or the conscientious objections of individuals, or, to put the matter shortly, individual liberty must be curtailed when opposed to the interest of the public.

2.The Declining Influence of Other Movements.—Various political, social, or even theological movements or beliefs, which during the nineteenth century occupied the thoughts of statesmen, patriots, and philanthropists, have ceased to interest deeply Englishmen of the twentieth century. Hence half the attractiveness of socialism. It is a system which has not as yet been tested by experience; it has not as yet achieved in practice even that half-success which, to ardent believers in plans for the improvement of mankind, is equivalent to something more disappointing than failure.

That many movements which seemed full of infinite promise have, even when successful, disappointed the hopes of their adherents is certain. The belief, for instance, in the untold benefits to be conferred upon mankind by merely constitutional changes, such, for example, as the establishment of Republics, or of Parliamentary Monarchies, is hardly comprehensible to the Englishmen of to-day. The passion for nationality, again, no longer commands in England, or indeed throughout Europe, the enthusiasm aroused by Mazzini, by Kossuth, by Cavour, and by Garibaldi. The men of the twentieth century find it hard to understand how aged statesmen, such as Palmerston and Lord John Russell, became fervent believers in the principle of nationality, and such modern critics of mid-Victorian ideas are specially puzzled when they find a belief in nationalism to have been combined with a desire to found throughout Continental Europe constitutional monarchies after the English model. Nor is this diminution of interest in the cause of nationalism a result of its failure. It were truer to assert that the success of nationalism has in England destroyed enthusiasm for nationality. Italy has achieved freedom, unity, and independence. But the resurrection of Italy has lost its romance. Germany has for the first time become a united and powerful State. But then the creation of the German Empire has not fulfilled the hopes of English constitutionalists. It has imposed upon the world the all but unbearable burden of huge standing armies. The unity of Germany has involved the dismemberment of France. We can at any rate now see that national independence is nothing like a cure for all the evils under which a country may suffer. No foreigner tyrannises over Spain or Portugal, yet it may be doubted whether independence has brought immense benefit to Spaniards or to Portuguese. This state of feeling explains, though it does not justify, a singular phenomenon. Englishmen of to-day have witnessed the victories gained by the Greeks over the Turks with an apathy or indifference which would have amazed many of our grandfathers, even though they were high Tories.

Where, again, can we find the generous enthusiasm for raising backward races of the world, such as the negroes of America, to a position of freedom and equality? The spirit of Garrison seems to be dead in Massachusetts. That hatred of slavery, which wellnigh eighty-one years ago compelled the emancipation of the West Indian slaves, seems for the moment unknown to English electors, though we may trust that this decline in public virtue is a merely transitory phenomenon.

An observer, further, who is anxious to treat a serious matter with fairness, can hardly help suspecting that preachers and divines of to-day have lost to some extent the belief, held by most of their predecessors in England, that human beings individually, or society as a whole, can be reformed by the teaching of doctrine which the preacher holds to be religious truth. The nature of the possible change or contrast on which it is necessary to insist may be most fairly shown by means of historical examples. Nobody for a moment doubts that the teaching of Wesley, and the Methodist movement generally, did produce a great and most beneficial effect upon the social condition of thousands among the miners, the labourers, and the artisans of England. Religious conversion of men, whom ignorance and want of moral guidance had left in a condition of something very like Paganism, produced a body of good men and of good citizens, and of persons therefore who in a country like England did as a rule obtain material prosperity.1 It has been indeed not unreasonably suggested2 that the rise of Methodism diverted the ablest men among the wage-earners of England from sympathy with the revolutionary doctrines of 1789. But however great the benefits conferred by Methodism on large bodies of Englishmen, it is clear that the primary object of the early Methodists was to inculcate what they held to be the saving truths of Christianity. Social reform was the happy but secondary result of their teaching. The same remark holds good of the Evangelicals, though happily their religious fervour made them the champions of humanitarianism. The High Churchmen and Tractarians of eighty years ago were certainly, and, from their own point of view quite rightly, much more occupied in vindicating or asserting the Catholic character of the Church of England than in any kind of secular reform. That every sincere minister of religion inside and outside the Church of England has laboured and is labouring to promote, according to his lights, charity, peace, and goodwill among mankind, even a cynic would hesitate to deny. The language of Richard Baxter—

• I preached as never sure to preach again,
• And as a dying man to dying men—

describes the sincere purpose of the best and the most pious among the preachers of England up to the middle of the nineteenth century: but it hardly describes the attitude or the aim of the best and the most sincere preachers of to-day. This assertion does not imply any change of creed on the part of ministers of religion, still less does it point at any kind of dishonesty. My statement is merely the recognition of an admitted fact. Good and religious men now attach less importance to the teaching of religious dogma than to efforts which may place the poor in a position of at any rate comparative ease and comfort, and thus enable them to turn from exhausting labour to the appreciation of moral and religious truth. This is a change the existence whereof seems hardly deniable. It gives to the preachers of to-day a new interest in social reform; and, it may be added, the declining interest in the preaching of religious dogma in itself opens the minds of such men to the importance of social improvement. But to speak quite fairly, this change produces some less laudable results. It disposes zealous reformers to underrate the immense amount of truth contained in the slow methods of improvement advocated by believers in individualism and laissez faire, and to overrate the benefits to be gained from energetic and authoritative socialism. The fervent though disinterested dogmatism of the pulpit may, moreover, in regard to social problems, be as rash and misleading as the rhetoric of the platform. It is specially apt to introduce into social conflicts the intolerable evil of “thinking fanatically,”1 and therefore of acting fanatically. However this may be, the altered attitude of religious teachers in regard to social reform has, in common with the other changes of opinion on which I have insisted, added strength to the current of collectivism.

3.The General Acquiescence in Proposals tending towards Collectivism.—Wealthy Englishmen have made a much less vigorous resistance to socialistic legislation than would have been expected by the statesmen or the economists of sixty years ago. This acquiescence in proposals opposed to the apparent interest of every owner of property, has led at least one ingenious writer1 to fancy he had discovered some unknown law of human nature which compelled the rich men of England to perform acts of otherwise inexplicable unselfishness. In truth a somewhat curious phenomenon is amply explained by the combination of an intellectual weakness with a moral virtue, each of which is easily discernible in the Englishmen of to-day. The intellectual weakness or failure is the indolent assumption that the effect of apparently great legal or political changes is, in the long run, very small. This view is suggested by the superficial reading, or the still more superficial memory, of English political history from the accession of George III. (1760) to the accession of George V. (1910). During these one hundred and fifty years almost every legal change, whether entitled reform or revolution, has produced far smaller results than were anticipated by their advocates or by their opponents. Catholic Emancipation, 1829, the Reform Act, 1832, the establishment of Free Trade, 1845, the line of Factory Acts, extending from 1802 to the present day, the democratic extensions of the Parliamentary suffrage, which received their latest, though not probably their final, development in 1884, have not to all appearance revolutionised the condition of England. They have not led to deeds of sanguinary violence, nor given rise to the reactionary legislation which has done so much to delay the course of peaceful progress in France. Hence the homely and comfortable but delusive doctrine that in the political world “nothing signifies.”1 The high moral virtue, which tends accidentally in the same direction as a kind of intellectual apathy, is the daily increasing sympathy in England with the sufferings of the poor. Benevolence is quite as natural to man, and in fact is far more common, at any rate with civilised men, than outrageous selfishness or malevolence. An Englishman of the middle classes who is freed from the necessity for all-absorbing toil in order to obtain the means necessary for acquiring the independence or the comforts of his life, is more often than not a man of kindly disposition. His own happiness is diminished by the known and felt miseries of his less wealthy neighbours. Now, for the last sixty years and more, the needs and sufferings of the poor have been thrust upon the knowledge of middle-class Englishmen. There are persons still living who can recall the time when about sixty years ago the Morning Chronicle in letters on London Labour and the London Poor revealed to the readers of high-class, and then dear, newspapers the miserable condition of the poorer wage-earners of London. These letters at once aroused the sympathy and called forth the aid of Maurice and the Christian Socialists. For sixty years novelists, newspaper writers, and philanthropists have alike brought the condition of the poor constantly before the eyes of their readers or disciples. The desire to ease the sufferings, to increase the pleasures, and to satisfy the best aspirations of the mass of wage-earners has become a marked characteristic of the wealthy classes of Englishmen. This sentiment of active goodwill, stimulated no doubt by ministers of religion, has spread far and wide among laymen, e.g. lawyers, merchants, and others not specially connected with any one religious, theological, or political party. There is nothing in all this to excite surprise, though there is much to kindle hope. It may be expected that, as has happened again and again during the history of England, the power of opinion may, without any immense revolution in the institutions of the country, modify and reform their working. No doubt there is something also in the present condition of public sentiment to arouse fear. The years which immediately preceded the French Revolution witnessed the rapid development of benevolence and philanthropy in France and throughout the civilised countries of Europe. These feelings were not unreal though coloured, under the influence of Rousseau, with too much of rhetoric to suit the taste of the twentieth century, and were connected with speculative doctrines which, in common with modern collectivism, combine some important truths with some at least equally important delusions. No criticism, in any case, of public opinion in England is worth anything which fails to take into account the goodwill of the richer classes of Englishmen towards their less prosperous neighbours.

4.The Advent in England of Parliamentary Democracy.—Democracy, if the word be used in the way it should always be employed, as meaning a form of government, has no necessary connection with collectivism.1 It is nevertheless true that the extension of the Parliamentary suffrage (1866-1884), combined with the existing conditions of public life in England, has increased, and often unduly increased, the influence of socialists, and for the following reasons:

It has, in the first place, made known and called attention to the real or the supposed wishes or wants of the poorer electors.

It has, in the second place, increased the power of any well organised Parliamentary faction or group, which is wholly devoted to the attainment of some definite political or social object, whether the object be the passing of socialistic legislation or the obtaining of Parliamentary votes for women. For such a group may certainly come to command a vote in Parliament sufficient to determine which of the two leading parties, say, speaking broadly, of Conservatives or of Radicals, shall hold office. In such circumstances one of these two parties is almost certain to form an alliance with a faction strong enough to decide the result of the great party game. Hence it may well happen that socialists may for a time obtain the active aid, and to a certain extent the sympathy, of a great party whose members have no natural inclination towards socialism. This possible tyranny of minorities is a phenomenon which was hardly recognised either by the statesmen or by the thinkers of 1860 or 1870, but it is a fact to which in the twentieth century no reasonable man can shut his eyes.

The course of events, in the third place, and above all the competition for office which is the bane of the party system, have at last revealed to the electorate the extent of their power, and has taught them that political authority can easily be used for the immediate advantage, not of the country but of a class. Collectivism or socialism promises unlimited benefits to the poor. Voters who are poor, naturally enough adopt some form of socialism.

5.The Spread of Collectivism or Socialism in Foreign Countries.—Englishmen have rarely been directly and consciously influenced by the example of foreign countries. English political or social movements have been influenced far less by logical argument than by the logic of facts, and of facts observable in England. English collectivism and socialism owes its peculiar development in England mainly to the success of English trade unionism, but every part of the world is by means of railways and electric telegraph being brought nearer to each other. It may therefore be taken for granted that the progress of socialistic legislation and the trial of socialistic experiments in English colonies, such as the Australian Commonwealth, or in the United States, or even in an utterly foreign country, such as France, have promoted the growth of collectivism in England. In 1914 events occurring in France are better known to an English artisan than in 1814 they were known to an English squire or merchant.

It is worth while in this connection to observe how nearly the French Legislature has, whether consciously or not, entered upon the path followed by the Imperial Parliament of the United Kingdom. The resemblance between the development of social legislation in France and in England may be thus illustrated: The laws of March 21, 1884, and of July 1, 1901, have established in France the “right of association” (to use a French term), and thereby conferred upon trade unions, whether of workmen or of masters, and also upon all other professional associations, rights closely resembling, though not identical with, the rights possessed since 1875 by English trade unions. In France provisions for the support of the poor have received a development which at any rate recall the English poor law.1 In both countries the law confers old age pensions on the poor, though in France both the employer and the employed contribute to the pension. In both countries there exists a body of factory legislation, though it is far less developed in France than in England. In France as in England accidents befalling a workman in the course of his employment entitle him to compensation from his employer.2 In each country the law prohibits the truck system of payment, and the law secures for workers in factories and shops a weekly day of rest.3 The English Parliament has in the case of some employments established a minimum wage in favour of workmen.4 Proposals in favour of the same policy have been laid before the French Parliament, and, it is said, may probably find acceptance. The reacquisition in 1908 by the French State of a whole railway system is a considerable step towards the nationalisation of railways.1 In none of these cases does the law of the two countries coincide, but in these and in many other instances English public opinion and French public opinion are clearly flowing in the same direction. As far as Englishmen can judge, the law of England has, in its unsystematic way, gone further in the direction of socialism than has the law of France. I can discover no French law giving to any association the privileges conferred on English trade unions by the Trade Disputes Act, 1906. A foreign critic may conjecture that the influence of small landowners, or so-called peasant proprietors, in France checks the progress of socialism. The comparison between the social legislation of the two countries has this special point of interest: In each country you have a real system of popular government; in each country Parliament is supreme; in each country parliamentary government means party government. The Third Republic of France more closely resembles, and can more easily be compared with, the constitutional monarchy of England than can any other system of government now existing on the European Continent.

6.The Existence of Industrial Discontent or Warfare.—“The industrial situation . . . in the world at large has not improved during the last twenty-five years. On the contrary, it has become more exasperated and more dangerous. What is the way out of the prevailing condition of industrial warfare? It amounts to warfare, this incessant conflict within the political body between the employed and the employers—and in many cases it becomes an actual physical contest.”1 Thus writes the President Emeritus of Harvard University: he is no socialist; he represents the energetic character of New England; he is imbued with the sanguine temperament of every born citizen of the United States. “Social discontent is by universal admission the distinctive character of our age; and the rapid spread among the European populations of doctrines which presuppose a more or less violent transformation of society provides no distant parallel to the ardent Messianic expectations of Christ’s contemporaries.”2 These are the words of the Dean of Durham in a sermon on the Kingdom of God. They are certainly not meant to encourage hopes grounded on revolutionary transformations of our social condition. Who can doubt that discontent among the wage-earners is a distinctive characteristic of the present time?

In any attempt to explain this state of feeling we must bear in mind one consideration. It is that discontent or even violent indignation aroused by an existing state of society is often due far less to the absolute amount of the suffering endured among men prepared to rebel against the most fundamental laws of social existence than to the increased vividness of the contrast between given institutions and the desires of persons who suffer, or think they suffer, from the existing state of things. Thus it is quite possible that the wage-earners of England may be relatively better off than were their fathers or their grandfathers fifty or a hundred years ago. But yet the contrast between the rich and the poor in England may press more heavily upon the thoughts and the imaginations of English working men than it did towards the beginning of the nineteenth century. Whether from an economical point of view the existence of millionaires does great harm, or any harm, to the mass of the people, may be a matter of doubt. What is absolutely certain is that the existence of millionaires emphasises the difference between rich and poor, and also kindles among all classes an exaggerated desire for wealth.

Then, too, it is a highly probable opinion that the poorer citizens of all civilised countries have arrived at a stage of education which makes it easy for them to perceive the possible benefits for wage-earners to be derived from the interference of the State, and at the same time to be victims to the easily propagated delusion that all wealth possessed by the rich is so much stolen from the poor. One lesson of experience should never be absent from the mind of any student engaged in investigating the history of opinion. Revolutions are not by any means always due to increasing or to new oppression. It would be ridiculous to assert that the citizens, for example, of the Australian Commonwealth suffer from oppressive laws; they enjoy high wages, they can if they wish become landowners, they can at their pleasure repeal any law which they deem to be unjust, or enact any law which they deem to be necessary to the prosperity of their country. Yet socialistic legislation and experiment have been carried to a greater length in Australia than in England. The discontent, in other words, with the inequality between rich and poor is, whatever be the reason, felt with special force in a very prosperous English Colony. The history of the French Revolution presents a somewhat similar phenomenon. Hostility to the ancien régime was felt more keenly by Parisians, who from the nature of things could not suffer much from “feudal institutions,” than by peasants living in the country districts of France. The privileges of the nobility had, before 1789, a far more real existence in La Vendée than in any great town, yet the peasants of La Vendée supported the throne and the altar when Paris supported or tolerated the Reign of Terror.1

[1 ]A critic should never forget that the truth of a belief is not necessarily demonstrated by its wide acceptance. Half the history of human thought is the tale of human errors. The belief that a crusade by Christians for the recovery of the Holy Land and the Holy Sepulchre was commanded by reverence for Christ was entertained for centuries in the leading countries of Europe, and by the best and wisest of men. This faith was at best a generous delusion. The Crusaders, it has been well remarked, sought for the living among the dead.

[2 ]This interdependence is, I believe, at bottom the meaning of the technical expression “solidarity” which, with writers such as Duguit, is an almost sacramental term.

[1 ]See p. xxvii., ante.

[2 ]Mill qualifies, or rather extends, his simple principle by the remark that, where he talks of conduct which affects only a man himself, he means conduct which affects “only himself . . . directly, and in the first instance.” Mill thereby all but admits that hardly any conduct of a human being can be named (except conduct which does not go further than the realm of thought) which, strictly speaking, affects “only himself.” See Mill, On Liberty, p. 26.

[1 ]See Leslie Stephen, English Thought in the Eighteenth Century, ch. xii. pp. 409-425.

[2 ]Lecky, History of England in the Eighteenth Century, ii. ch. ix. pp. 635-638.

[1 ]See an admirable letter by the Dean of Durham, Times, November 27, 1913.

[1 ]See Benjamin Kidd, Social Evolution, and compare “Political Prophecy and Sociology,” in Miscellaneous Essays and Addresses, by H. Sidgwick, p. 216.

[1 ]Such easy-going confidence on the part of ordinary Englishmen in the infinitely small effect of legislation, whether good or bad, may be pardoned when we reflect that a systematic thinker such as Herbert Spencer, in many of his strictures on the failure of legislation to achieve its avowed object, makes far too little allowance for the long latent period which often elapses before results appear. See W. Bateson, Biological Fact and the Structure of Society, p. 28 (n.).

[1 ]See Lect. III. pp. 48-61, post.

[1 ]See Pic, Les Lois Ouvrières (3rd ed.), sects. 1404-1411.

[2 ]Ibid. sects. 1077-1138; law, April 9, 1898; law, July 18, 1907.

[3 ]Ibid. sects. 777, 808, 825.

[4 ]See p. xlix, ante.

[1 ]Rachat des chemins de fer de l’ouest, law, July 13, 1908. See Duguit, Droit Constitutionnel, i. p. 428.

[1 ]Successful Profit-Sharing, by Charles W. Eliot, President Emeritus of Harvard University.

[2 ]See the Guardian, November 7, 1913, p. 1398, Sermon by the Dean of Durham.

[1 ]Sir Alfred Lyall inferred from Tocqueville’s writings that it was the prosperity and the enlightenment of the French people that produced the great crash of the Revolution.