The Online Library of Liberty

A project of Liberty Fund, Inc.

• 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

LECTURE I

THE RELATION BETWEEN LAW AND PUBLIC OPINION

Lecture I.My aim in these lectures is to exhibit the close dependence of legislation, and even of the absence of legislation, in England during the nineteenth century upon the varying currents of public opinion.1

The fact of this dependence will be assumed by most students with even too great readiness. We are all of us so accustomed to endow public opinion with a mysterious or almost supernatural power, that we neglect to examine what it is that we mean by public opinion, to measure the true limits of its authority, and to ascertain the mode of its operation. Surprise may indeed be felt, not at the statement that law depends upon opinion, but at this assertion being limited to England, and to England during the last century. The limitation, however, is intentional, and admits of full justification.

True indeed it is that the existence and the alteration of human institutions must, in a sense, always and everywhere depend upon the beliefs or feelings, or, in other words, upon the opinion of the society in which such institutions flourish.

“As force,” writes Hume, “is always on the side of the governed, the governors have nothing to support them but opinion. It is, therefore, on opinion only that government is founded; and this maxim extends to the most despotic and most military governments, as well as to the most free and most popular. The Soldan of Egypt, or the Emperor of Rome, might drive his harmless subjects, like brute beasts, against their sentiments and inclination; but he must, at least, have led his mamelukes, or prætorian bands, like men, by their opinion.”1

And so true is this observation that the authority even of a Southern planter over his slaves rested at bottom upon the opinion of the negroes whom he at his pleasure flogged or killed. Their combined physical force exceeded the planter’s own personal strength, and the strength of the few whites who might be expected to stand by him. The blacks obeyed the slave-owner from the opinion, whether well or ill founded, that in the long run they would in a contest with their masters have the worst of the fight; and even more from that habit of submission which, though enforced by the occasional punishment of rebels, was grounded upon a number of complicated sentiments, such, for example, as admiration for superior ability and courage, or gratitude for kindness, which cannot by any fair analysis be reduced to a mere form of fear, but constitute a kind of prevalent moral atmosphere. The whites, in short, ruled in virtue of the opinion, entertained by their slaves no less than by themselves, that the slave-owners possessed qualities which gave them the might, and even the right, to be masters. With the rightness or wrongness of this conviction we are not here in any way concerned. Its existence is adduced only as a proof that, even in the most extreme case conceivable, Hume’s doctrine holds good, and the opinion of the governed is the real foundation of all government.

But, though obedience to law must of necessity be enforced by opinion of some sort, and Hume’s paradox thus turns out to be a truism, this statement does not involve the admission that the law of every country is itself the result of what we mean by “public opinion.” This term, when used in reference to legislation, is merely a short way of describing the belief or conviction prevalent in a given society that particular laws are beneficial, and therefore ought to be maintained, or that they are harmful, and therefore ought to be modified or repealed. And the assertion that public opinion governs legislation in a particular country, means that laws are there maintained or repealed in accordance with the opinion or wishes of its inhabitants. Now this assertion, though it is, if properly understood, true with regard to England at the present day, is clearly not true of all countries, at all times, and indeed has not always been true even of England.

For, in the first place, there exist many communities in which public opinion—if by that term be meant speculative views held by the mass of the people as to the alteration or improvement of their institutions—can hardly be said to have any existence. The members of such societies are influenced by habits rather than by thoughts. Their mode of life is determined by customary rules, which may indeed have originated in the necessities of a given social condition, or even in speculative doctrines entertained by ancient law-givers, but which, whatever be their origin, assuredly owe their continuance to use and wont. It is, in truth, only under the peculiar conditions of an advanced civilisation that opinion dictates legislative change. In many Eastern countries, opinion—which is better described as traditional or instinctive feeling—has for ages been, in general, hostile to change and favourable to the maintenance of inherited habits. There, as in the West, opinion, in a very wide sense of that word, rules; but such aversion to change as for ages keeps a society within the limits of traditional action, is a very different thing from the public opinion which in the England of the nineteenth and twentieth centuries has demanded constant improvements in the law of the land.

It is possible, in the second place, to point to realms where laws and institutions have been altered or revolutionised in deference to opinion, but where the beliefs which have guided legislative reform have not been what we mean in England by “public” opinion. They have been, not ideas entertained by the inhabitants of a country, or by the greater part thereof, but convictions held by a small number of men, or even by a single individual who happened to be placed in a position of commanding authority. We must, indeed, remember that no ruler, however powerful, can stand completely alone, and that the despots who have caused or guided revolutions have been influenced by the opinion, if not of their own country, yet of their generation. But it may be asserted with substantial truth that Peter the Great laid the foundation of Russian power without much deference to the opinion of Russia, and that modern Prussia was created by Frederick the Great, who certainly drew his ideas of good government from other than Prussian sources. It was not, then, the public opinion of the Russian people or the public opinion of the Prussians, but the convictions of a single man which in each case moulded the laws and institutions of a powerful country. At this moment legislation in British India is the work of a body of English specialists who follow to a great extent the current of English opinion. They are, indeed, it is to be hoped, guided far more by their own experience and by their practical knowledge of India, than by English sentiment; but Anglo-Indian officials though they may not always obey the transitory feelings of the English public, certainly do not represent Indian public opinion.

In the third place, the law of a country may fail, for a time, to represent public opinion owing to the lack of any legislative organ which adequately responds to the sentiment of the age. A portion, at least, of that accumulation of abuses, which was the cause or the occasion of the French Revolution, may fairly be ascribed to the want of any legislative body possessing both the power and the will to carry out reforms which had long been demanded by the intelligence of the French nation. Some critics may, it is true, deny that a legislative organ was lacking: a French king held in his hands under the ancien régime an authority nearly approaching to sovereign power, and an enlightened despot might, it has been suggested, have conferred upon the country all the benefits promised by the Revolution. But the power of the French Crown was practically more limited than modern critics always perceive, whilst the circumstances no less than the character of Louis XV. and Louis XVI. disqualified these monarchs for performing the part of enlightened despots. The “Parliaments,” again, which assuredly possessed some legislative power, might, it has been argued, have reformed the laws and institutions of the country. But the Parliaments were after all Courts, not legislatures, and represented the prejudices of lawyers, not the aspirations of reformers; Frenchmen, zealous for the removal of abuses, looked, as a matter of fact, with more hope to the action of the king than to the legislation of Parliaments which represented the antiquated conservatism of a past age. The want, then, of a legislative organ was in France a check upon the influence of public opinion. Nor can it be denied that even in England defective legislative machinery has at times lessened the immediate influence of opinion. The chief cause, no doubt, of the arrest of almost every kind of reform during the latest years of the eighteenth and the earlier part of the nineteenth century, was a state of feeling so hostile to revolution that it forbade the most salutary innovations. But “legislative stagnation,” as it has been termed, lasted in England for at least ten or twenty years beyond the date when it ought naturally to have come to an end; and it can hardly be disputed that this delay in the improvement of English institutions was due in part to the defects of the unreformed Parliament—that is, to the non-existence of a satisfactory legislative organ.

The close and immediate connection then, which in modern England exists between public opinion and legislation is a very peculiar and noteworthy fact, to which we cannot easily find a parallel. Nowhere have changes in popular convictions or wishes found anything like such rapid and immediate expression in alterations of the law as they have in Great Britain during the nineteenth century, and more especially during the last half thereof. France is the land of revolution, England is renowned for conservatism, but a glance at the legal history of each country suggests the existence of some error in the popular contrast between French mutability and English unchangeableness. In spite of revolutions at Paris, the fundamental provisions of the Code Napoléon have stood to a great extent unaltered since its publication in 1804, and before 1900 the Code had become invested with a sort of legal sanctity which secured it against sudden and sweeping change. In 1804 George the Third was on the throne, and English opinion was then set dead against every legal or political change, yet there is now hardly a part of the English statute-book which between 1804 and the present day has not been changed in form or in substance; and the alterations enacted by Parliament have been equalled or exceeded by innovations due to the judge-made law of the Courts. The United States of America, again, have been under the government of a pure democracy, and in no country is the expression of opinion more free; but the whole history of the United States shows that federal legislation, at any rate, does not lend itself easily to large and sudden changes, nor do alterations introduced by State legislation appear to have been on the whole either fundamental or rapid.

This condition of legislative quiescence, it may be objected, is, in the case both of France and of the United States, due to a condition of opinion hostile to legal innovations, and therefore in no way shows that public opinion cannot as easily effect alterations in the law of the land as it can in England, and this suggestion contains a certain amount of truth. The occasional outbreak of revolution has among Frenchmen been unfavourable to that habit of constantly and gradually amending the law, which has become natural to Englishmen, whilst admiration for American institutions and a certain general satisfaction with things as they are, have in the United States created a remarkable kind of legal conservatism. The condition of opinion is, however, not the only reason for the existence of legislative quiescence both in the greatest of European and in the greatest of American Republics. In neither country are there wanting critics of the national institutions, but in neither has effective criticism usually led so easily to legislation as in England. The difficulty imposed by many French constitutions on meeting with rapidity the requirements of public opinion has not only been an excuse for revolutionary violence, but has also hindered the gradual amendment of the law of France; nor is it irrelevant to note that the constitution of the Third Republic renders the Parliament a body which responds more easily to the immediate sentiment of the moment, than any legislature which has existed in France since the National Assembly of 1789, and that simultaneously with this change, a tendency towards the introduction of amendments into the law of the country has begun to make itself apparent. In the United States the Federal Constitution limits the power both of Congress and of the State legislatures; and the hands of any State legislature, be it noted, are tied by the articles, not only of the Federal Constitution, but also of the State Constitution, whilst throughout the United States there exists a tendency to restrict more and more closely the authority of the State representative assemblies. The constitutionalism, then, of the United States, no less than of France, has told against the promotion of that constant legislative activity which is a characteristic feature of modern English life. From whatever point of view, in short, the matter be regarded, it becomes apparent that during the last seventy-five years or more public opinion has exercised in England a direct and immediate control over legislation which it does not even now exert in most other civilised countries.

There are, then, to be found three different reasons why we cannot assert of all countries, or of any country at all times, that laws are there the result of public opinion. No “opinion,” in the proper sense of that word, with regard to the change of the law may exist; the opinion which does direct the development of the law may not be “public opinion”; and lastly, there may be lacking any legislative organ adapted for carrying out the changes of the law demanded by public opinion.

In England, however, the beliefs or sentiments which, during the nineteenth century, have governed the development of the law have in strictness been public opinion, for they have been the wishes and ideas as to legislation held by the people of England, or, to speak with more precision, by the majority of those citizens who have at a given moment taken an effective part in public life.

And here the obvious conclusion suggests itself that the public opinion which governs a country is the opinion of the sovereign, whether the sovereign be a monarch, an aristocracy, or the mass of the people.

This conclusion, however, though roughly true, cannot be accepted without considerable reservation. The sovereign power may hold that a certain kind of legislation is in itself expedient, but may at the same time be unwilling, or even unable, to carry this conviction into effect, and this from the dread of offending the feelings of subjects who, though they in general take no active share in public affairs, may raise an insuperable opposition to laws which disturb their habits or shock their moral sentiment; it is well indeed, thus early in these lectures, to note that the public opinion which finds expression in legislation is a very complex phenomenon, and often takes the form of a compromise resulting from a conflict between the ideas of the government and the feelings or habits of the governed. This holds good in all countries, whatever be their form of government, but is more manifest than elsewhere in a country such as England, where the legislation enacted by Parliament constantly bears traces of the compromise arrived at between enlightenment and prejudice. The failure of Parliament during the eighteenth century to introduce reasonable reforms, for instance, was due far less to the prejudices of members of Parliament, or even of the electorate, than to the deference which statesmen instinctively, and on the whole wisely, paid to the dulness or stupidity of Englishmen, many of whom had no votes, and were certainly not able to dictate by constitutional means to Parliament. Walpole and his Whig associates were utterly free from bigotry, yet Walpole would never consent to relieve Dissenters from the Test Act, though Dissenters were his most strenuous supporters. The Act facilitating the naturalisation of Jews was, in obedience to popular clamour, repealed in the next session after it had been passed. Even the amendment of the calendar was found to be a matter of great difficulty; the ignorance of the electors was imposed upon by the phrase that they had been robbed of eleven days. The moderate measure of 1778 for the mitigation of the penal laws against Roman Catholics gave rise in 1780 to an outbreak of revolutionary violence; and the Lord George Gordon Riots explain, if they do not justify, the long delay of Catholic Emancipation. But the Roman Catholic Relief Act of 1829 is itself the most striking monument of legislative compromise. The measure was carried by reformers who desired the removal of all the political disabilities under which the Roman Catholics of the United Kingdom suffered, but it contains stringent provisions on the face of them intended to banish from the United Kingdom “every Jesuit and every member of any other religious order, community, or society of the Church of Rome bound by monastic or religious vows.”1 How does it happen that a law restoring to Roman Catholics the rights of citizenship, contained penal laws against Jesuits and monks? The answer lies close at hand. The general scope of the Act represents the enlightenment of a governing class which, by favour of peculiar circumstances, carried through a scheme of religious toleration opposed to the prejudices of the people. Penal enactments threatening Jesuits and monks with a banishment, which had never in a single instance been put in force, are the monument of a concession made by parliamentary statesmanship to vulgar bigotry.2

The principle that the development of law depends upon opinion is, however, open to one objection.

Men legislate, it may be urged, not in accordance with their opinion as to what is a good law, but in accordance with their interest, and this, it may be added, is emphatically true of classes as contrasted with individuals, and therefore of a country like England, where classes exert a far more potent control over the making of laws than can any single person.

Now it must at once be granted that in matters of legislation men are guided in the main by their real or apparent interest. So true is this, that from the inspection of the laws of a country it is often possible to conjecture, and this without much hesitation, what is the class which holds, or has held, predominant power at a given time. No man could cast a glance at the laws and institutions of the middle ages without seeing that power then went with ownership of land. Wherever agriculturalists are predominant you will find laws favouring the cultivators of the soil, and if you discover laws passed for the special benefit of manufacturers or artisans, you may be certain that these classes, in some way or other, are or were of political weight. Who could look into the statute-book of Jamaica or South Carolina without discovering that at one time the whites were despotic masters of the blacks? Who could contrast the English land law with the modern land law of France and fail to perceive that political authority has in England been in the hands of large landowners, and is in the France of to-day in the hands of small proprietors? The criminal law of the eighteenth century, and also many of its trade laws, bear witness to the growing influence of merchants. The free-trade legislation of 1846 and the succeeding years tells us that political authority had come into the hands of manufacturers and traders. Nor would any man, even though he knew not the history of our Parliamentary Reform Acts, hesitate, from the gist of modern statutes, to infer that during the nineteenth century, first the middle classes, then the artisans of our towns, and lastly the country labourers, had obtained an increase of political power. The connection, however, between legislation and the supposed interests of the legislators is so obvious that the topic hardly requires illustration.

The answer to the objection under consideration is, however, easy to find.

“Though men,” to use the words of Hume, “be much governed by interest, yet even interest itself, and all human affairs, are entirely governed by opinion.”1 Even, therefore, were we to assume that the persons who have power to make law are solely and wholly influenced by the desire to promote their own personal and selfish interests, yet their view of their interest and therefore their legislation must be determined by their opinion; and hence, where the public has influence, the development of the law must of necessity be governed by public opinion.

But though this answer is sufficient, there exists so much misunderstanding as to the connection between men’s interests and their beliefs that it is well to pursue the matter a step further. The citizens of a civilised country, such as England, are for the most part not recklessly selfish in the ordinary sense of that word; they wish, no doubt, to promote their own interests—that is; to increase their own pleasures and to diminish their own discomforts, but they certainly do not intend to sacrifice, to their own private advantage or emolument, either the happiness of their neighbours or the welfare of the State. Individuals, indeed, and still more frequently classes, do constantly support laws or institutions which they deem beneficial to themselves, but which certainly are in fact injurious to the rest of the world. But the explanation of this conduct will be found, in nine cases out of ten, to be that men come easily to believe that arrangements agreeable to themselves are beneficial to others. A man’s interest gives a bias to his judgment far oftener than it corrupts his heart. The heir of an English landowner is convinced that the law of primogeniture is a blessing to the country, but, if he looks too favourably upon a scheme for the devolution of property, which most Frenchmen consider patently unjust, his “sinister interest” (to use a favourite term of Bentham’s) affects him with stupidity rather than with selfishness. He overestimates and keeps constantly before his mind the strength of the arguments in favour of, and underestimates, or never considers at all, the force of the arguments against, the principle of primogeniture which, whatever its evils, confers upon him a large estate and an influential position. English manufacturers were sincere believers in protection as long as they thought it beneficial to trade, and became equally sincere enthusiasts for freedom of trade from the moment they were convinced that free trade in corn would be favourable to commerce and would give additional weight to the manufacturing interest. Landlords and farmers who found their gain in keeping up the price of corn were in general perfectly honest protectionists, and were convinced that protection, by rendering the country self-supporting and extending the sphere of agriculture, was of the greatest benefit to the nation. At this day an artisan who holds that the welfare of working men, in which his own prosperity is included, is promoted by trade-unionism, is honestly convinced that there can be little evil in practices which, though they certainly trench upon the personal freedom of individual workmen, enhance the authority of trade unions. It is well to insist upon the true relation between self-interest and belief, because ardent reformers, and notably Bentham and his disciples, have at times misunderstood it, and have used language which implied that every opponent of progress was, if not a fool, then a rogue, who deliberately preferred his own private advantage to the general benefit of mankind, whereas in reality he will be found in most cases to have been an honest man of average ability, who has opposed a beneficial change not through exceptional selfishness, but through some intellectual delusion unconsciously created by the bias of a sinister interest. Take the extreme case of American slave-owners. It will not be denied that, at the outbreak of the War of Secession, there were to be found in the South many fervent enthusiasts for slavery (or rather for the social system of which it was a necessary part), just as there were to be found in the North a far greater number of ardent enthusiasts for abolition. Some Southerners at least did undoubtedly hold the bona fide belief that slavery was the source of benefit, not only to the planters, but to the slaves, and indirectly to the whole civilised world. Such Southern fanatics were wrong and the Abolitionists were right. The faith in slavery was a delusion; but a delusion, however largely the result of self-interest, is still an intellectual error, and a different thing from callous selfishness. It is at any rate an opinion. In the case, therefore, of Southerners who resisted the passing of any law for the abolition of slavery, as in all similar instances, we are justified in saying that it is at bottom opinion which controls legislation.

[1 ]“Opinion rules everything.” Napoleon, cited in Life by Fournier, Eng. trans. vol. ii. p. 446.

[1 ]Hume, Essays, vol. i., Essay iv. p. 110: Green and Grose.

[1 ]See Roman Catholic Relief Act, 1829, ss. 28-36. These enactments (which do not apply to religious orders of women, ibid. s. 37) have never been enforced.

[2 ]So the Ecclesiastical Titles Act, 1851, prohibiting the assumption of ecclesiastical titles, is a record of popular panic caused by Papal aggression, whilst the absolute non-enforcement, and the subsequent repeal of the Act in 1871, mark the tolerant spirit of Parliament.

[1 ]Hume, Essays, vol. i. Essay vii. p. 125.