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LECTURE II: CHARACTERISTICS OF LAW-MAKING OPINION IN ENGLAND - Albert Venn Dicey, Lectures on the Relation between Law and Pubic Opinion during the 19th Century (2nd ed. 1919) [1905]

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Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (London: Macmillan, 1919). 2nd edition.

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LECTURE II

CHARACTERISTICS OF LAW-MAKING OPINION IN ENGLAND

Lecture II.Let it be here noted once for all that these lectures have a very precise and limited scope; they are primarily concerned with public opinion only during the nineteenth century; they are concerned, directly at least, even for this period, only with that kind of public opinion which, since it has told on the course of legislation, may with strict propriety be called law-making or legislative public opinion, and is recorded either in the statute-book, which contains the laws enacted by Parliament, or in the volumes of the reports, which contain the laws indirectly but not less truly enacted by the Courts.1

The limited aim of these lectures explains, in the first place, why it is that I have attempted only a very general or broad account of different schools of opinion, e.g. either of individualism or of socialism;2 fine and subtle distinctions, such as the speculative differences which divide the absolute individualism of Herbert Spencer on the one hand, from the practical or utilitarian individualism of J. S. Mill and H. Sidgwick on the other, have not materially affected legislation; they are therefore appropriate rather to a work dealing with political philosophy, than to lectures on the relation between the actual current of opinion and actual legislation in England during a given period, and may be dismissed from our consideration. The limited scope of these lectures explains, in the second place, why it is that they contain nothing about the extreme forms either of individualism or of socialism. Extreme and logically coherent theories have, during the nineteenth century, exerted no material effect on the law of England. It is moderate, though it may be inconsistent individualism alone, as it is moderate though it may be inconsistent socialism alone, which has told upon the making of English laws, and which therefore can claim to be legislative public opinion. With the individualism which all but demands the abolition of the national Post Office we need trouble ourselves as little as with the socialism which advocates the nationalisation of the land.

When we talk of legislative public opinion we should not forget that such opinion may bear a merely negative character, and operate not by making laws but by forbidding their enactment. It is, in short, a force which may act either, as it does nowadays, in favour of innovation, or, as it did in the early part of the nineteenth century, in favour of conservatism. In England, indeed, periods of legislative activity have always been exceptional. They may be reduced to four, namely, the era of Edward I., the age of the Tudors, the period of the Restoration, and the years which, commencing a little before, have followed the Reform Act of 1832. Nor need the fact that the absence of energetic legislation has been emphatically the rule, not the exception, cause us surprise. In any country which is governed in accordance with the wishes of its inhabitants there will in general exist no effective desire for change. And this is a consideration worth notice, since the legislative activity which has more or less prevailed for the last seventy years produces among Englishmen the delusion that popular sentiment always favours vigorous legislation. The experience, at any rate, of democratic countries where the constitution provides a regular mode of appeal from the legislature to the people, proves that the voice of the people may be just as ready to check as to stimulate the energy of parliamentary law-makers. It is at least possible that in England the legislative activity of Parliament may again decrease and the country enter upon another period of legislative inertia.

However this may be, public legislative opinion, as it has existed in England during the nineteenth century, presents several noteworthy aspects or characteristics. They may conveniently be considered under five heads—the existence at any given period of a predominant public opinion; the origin of such opinion; the development and continuity thereof; the checks imposed on such opinion by the existence of counter-currents and cross-currents of opinion; the action of laws themselves as the creators of legislative opinion.

First, There exists at any given time a body of beliefs, convictions, sentiments, accepted principles, or firmly-rooted prejudices, which, taken together, make up the public opinion1 of a particular era, or what we may call the reigning or predominant current of opinion, and, as regards at any rate the last three or four centuries, and especially the nineteenth century, the influence of this dominant current of opinion has, in England, if we look at the matter broadly, determined, directly or indirectly, the course of legislation.

It may be added that the whole body of beliefs existing in any given age may generally be traced to certain fundamental assumptions which at the time, whether they be actually true or false, are believed by the mass of the world to be true with such confidence that they hardly appear to bear the character of assumptions. Before the Reformation, for example, the authority of the Church, and of the Papacy as its visible head, was generally admitted throughout Western Europe both by thinkers and by men of action. As to the nature and limits of this authority there were no doubt wide differences of belief, but the general opinion of the time recognised the authority of the Church and the Papacy in matters of religion as past dispute. A belief, in short, which in later ages has been rejected by many men and by the population of many countries, as not only untrue but even incredible, seemed at one period so well established that its truth was among statesmen and thinkers hardly matter of debate.

The large currents, again, of public opinion which in the main determine legislation, acquire their force and volume only by degrees, and are in their turn liable to be checked or superseded by other and adverse currents, which themselves gain strength only after a considerable lapse of time. For example, the whole way in which, during the sixteenth and the seventeenth centuries, men looked at the regulation of labour or the fixing of prices by the State,—a view which finds expression in Tudor legislation, and has the closest connection with the Elizabethan poor law,—is the result of a body of beliefs favouring State intervention in matters of trade no less than in matters of religion, and had been growing up during many generations. This confidence in the authority of the State was in the seventeenth and eighteenth centuries superseded by a different body of beliefs which pointed at any rate towards the conclusion that the chief, though not the sole, duty of the State is to protect men’s persons and property,1 so as to secure the maximum of freedom for each man compatible with the existence of the like freedom on the part of others. All that need here be noted is that any fundamental change of convictions which inevitably affects legislation in all directions has, in England at least, always gone on slowly and gradually, and has been in this respect like the gradual rising of the tide. Nor does the likeness end here, for an alteration in the condition of opinion more often than not, begins just at the very time when the predominant beliefs of a particular age seem to exert their utmost power. The height of the tide immediately precedes its ebb.

Secondly, The opinion which affects the development of the law has, in modern England at least, often originated with some single thinker or school of thinkers.

No doubt it is at times allowable to talk of a prevalent belief or opinion as “being in the air,” by which expression is meant that a particular way of looking at things has become the common possession of all the world. But though a belief when it prevails, may at last be adopted by the whole of a generation, it rarely happens that a widespread conviction has grown up spontaneously among the multitude. “The initiation,” it has been said, “of all wise or noble things, comes and must come, from individuals; generally at first from some one individual;”1 to which it ought surely to be added that the origination of a new folly or of a new form of baseness comes, and must in general come, at first from individuals or from some one individual. The peculiarity of individuals, as contrasted with the crowd, lies neither in virtue nor in wickedness but in originality. It is idle to credit minorities with all the good without ascribing to them most at least of the evils due to that rarest of all human qualities—inventiveness.

The course of events in England may often at least be thus described:—A new and, let us assume, a true idea presents itself to some one man of originality or genius;2 the discoverer of the new conception, or some follower who has embraced it with enthusiasm, preaches it to his friends or disciples, they in their turn become impressed with its importance and its truth, and gradually a whole school accept the new creed. These apostles of a new faith are either persons endowed with special ability or, what is quite as likely, they are persons who, owing to their peculiar position, are freed from a bias, whether moral or intellectual, in favour of prevalent errors. At last the preachers of truth make an impression, either directly upon the general public or upon some person of eminence, say a leading statesman, who stands in a position to impress ordinary people and thus to win the support of the nation. Success, however, in converting mankind to a new faith, whether religious, or economical, or political, depends but slightly on the strength of the reasoning by which the faith can be defended, or even on the enthusiasm of its adherents. A change of belief arises, in the main, from the occurrence of circumstances which incline the majority of the world to hear with favour theories which, at one time, men of common sense derided as absurdities, or distrusted as paradoxes.1 The doctrine of free trade, for instance, has in England, for about half a century,2 held the field as an unassailable dogma of economic policy, but an historian would stand convicted of ignorance or folly who should imagine that the fallacies of protection were discovered by the intuitive good sense of the people, even if the existence of such a quality as the good sense of the people be more than a political fiction. The principle of free trade may, as far as Englishmen are concerned, be treated as the doctrine of Adam Smith. The reasons in its favour never have been, nor will, from the nature of things, be mastered by the majority of any people. The apology for freedom of commerce will always present, from one point of view, an air of paradox. Every man feels or thinks that protection would benefit his own business, and it is difficult to realise that what may be a benefit for any man taken alone, may be of no benefit to a body of men looked at collectively. The obvious objections to free trade may, as free traders conceive, be met; but then the reasoning by which these objections are met is often elaborate and subtle, and does not carry conviction to the crowd. It is idle to suppose that belief in freedom of trade,—or indeed any other creed,—ever won its way among the majority of converts by the mere force of reasoning. The course of events was very different. The theory of free trade won by degrees the approval of statesmen of special insight, and adherents to the new economic religion were one by one gained among persons of intelligence. Cobden and Bright finally became potent advocates of truths of which they were in no sense the discoverers. This assertion in no way detracts from the credit due to these eminent men. They performed to admiration the proper function of popular leaders; by prodigies of energy, and by seizing a favourable opportunity, of which they made the very most use that was possible, they gained the acceptance by the English people of truths which have rarely, in any country but England, acquired popularity. Much was due to the opportuneness of the time. Protection wears its most offensive guise when it can be identified with a tax on bread, and therefore can, without patent injustice, be described as the parent of famine and starvation. The unpopularity, moreover, inherent in a tax on corn is all but fatal to a protective tariff when the class which protection enriches is comparatively small, whilst the class which would suffer keenly from dearness of bread and would obtain benefit from free trade is large, and having already acquired much, is certain soon to acquire more political power. Add to all this that the Irish famine made the suspension of the corn laws a patent necessity. It is easy, then, to see how great in England was the part played by external circumstances—one might almost say by accidental conditions—in determining the overthrow of protection. A student should further remark that after free trade became an established principle of English policy, the majority of the English people accepted it mainly on authority. Men, who were neither land-owners nor farmers, perceived with ease the obtrusive evils of a tax on corn, but they and their leaders were far less influenced by arguments against protection generally than by the immediate and almost visible advantage of cheapening the bread of artisans and labourers. What, however, weighed with most Englishmen, above every other consideration, was the harmony of the doctrine that commerce ought to be free, with that disbelief in the benefits of State intervention which in 1846 had been gaining ground for more than a generation.1

It is impossible, indeed, to insist too strongly upon the consideration that whilst opinion controls legislation, public opinion is itself far less the result of reasoning or of argument than of the circumstances in which men are placed. Between 1783 and 1861 negro slavery was abolished, one might almost say ceased of itself to exist, in the Northern States of the American Republic; in the South, on the other hand, the maintenance of slavery developed into a fixed policy, and before the War of Secession the “peculiar institution” had become the foundation-stone of the social system. But the religious beliefs and, except as regards the existence of slavery, the political institutions prevalent throughout the whole of the United States were the same. The condemnation of slavery in the North, and the apologies for slavery in the South, must therefore be referred to difference of circumstances. Slave labour was obviously out of place in Massachusetts, Vermont, or New York; it appeared to be, even if in reality it was not, economically profitable in South Carolina. An institution, again, which was utterly incompatible with the social condition of the Northern States harmonised, or appeared to harmonise, with the social conditions of the Southern States. The arguments against the peculiar institution were in themselves equally strong in whatever part of the Union they were uttered, but they carried conviction to the white citizens of Massachusetts, whilst, even when heard or read, they did not carry conviction to the citizens of South Carolina. Belief, and, to speak fairly, honest belief, was to a great extent the result not of argument, nor even of direct self-interest, but of circumstances. What was true in this instance holds good in others. There is no reason to suppose that in 1830 the squires of England were less patriotic than the manufacturers, or less capable of mastering the arguments in favour of or against the reform of Parliament. But every one knows that, as a rule, the country gentlemen were Tories and anti-reformers, whilst the manufacturers were Radicals and reformers. Circumstances are the creators of most men’s opinions.

Thirdly, The development of public opinion generally, and therefore of legislative opinion, has been in England at once gradual, or slow, and continuous.

The qualities of slowness and continuity may conveniently be considered together, and are closely interconnected, but they are distinguishable and essentially different.

Legislative public opinion generally changes in England with unexpected slowness.

Adam Smith’s Wealth of Nations was published in 1776; the policy of free exchange was not completely accepted by England till 1846. All the strongest reasons in favour of Catholic emancipation were laid before the English world by Burke between 1760 and 1797; the Roman Catholic Relief Act was not carried till 1829. On no point whatever was Bentham’s teaching more manifestly sound than in his attack on rules unnecessarily excluding evidence, and, inter alia, the evidence of the parties to an action or prosecution. His Rationale of Judicial Evidence specially applied to English Practice was published in 1827, and his principles had been made known before that date, yet even the restrictions on the evidence of the parties to proceedings at law were not completely removed till 1898. Nor is this slow growth of opinion peculiar to the legislation advocated by any one school. The line of Factory Acts begins in 1802; the movement of which they are the outward result achieved its first decided triumph in 1847, and received its systematic, though assuredly not its final development in the labour code known as the Factory and Workshop Act, 1901. Owing to the habitual conservatism to be found even among ardent reformers when leaders of Englishmen, and to the customs of our parliamentary government, the development of legislative opinion is rendered still slower by our inveterate preference for fragmentary and gradual legislation. Only in exceptional cases and under the pressure of some crisis can English legislators be induced to carry out a broad principle at one stroke, to its logical and necessary consequences. Before the end of the eighteenth century Englishmen of intelligence had ceased to believe that Roman Catholicism could be rightly treated as a crime, and come to doubt whether it was a fair ground of political disability. But the penal laws against Roman Catholics were relaxed only by degrees; they were mitigated in 1778 (18 Geo. III. c. 60), and again in 1791 (31 Geo. III. c. 32). It was not till 1829 that professors of the old faith were granted substantial political equality, and since the passing of the Catholic Relief Act, 1829, more than one Act of Parliament has been needed in order to remove the remnants of the old penal laws. The broad principle that religious belief or disbelief ought not in any way to deprive a man of political rights or civil rights, has at last been in the main accepted by the English people, but it has needed a whole line of enactments from the Toleration Act, 1688, to the Oaths Act, 1888,1 to give all but complete effect to this accepted idea. The modern labour code2 is the fruit of more than forty enactments extending over the greater part of the nineteenth century. The mitigation of our criminal law has been carried out by a long series of separate Acts, each dealing with special offences. Even the gross brutality of the pillory was not got rid of at one blow. In 1816 it was reserved for a limited number of crimes (56 Geo. III. c. 138); in 1837 it was at last abolished (7 Will. IV. & 1 Vict. c. 23). If capital offences have been reduced from at least 160 to 2, this humanisation of our law is the consequence of a series of Acts dating from the beginning of the nineteenth century, and passed for the most part between 1827 and 1861. Here, as elsewhere, exceptions prove the rule. The early energy of the generation which, wearied with toryism, carried the Reform Act, effected for a short time legislation which to its authors seemed sweeping and thoroughgoing. The Reform Act itself startled the Whigs by whom it was carried. The Municipal Reform Act, 1836, swept away at once a mass of antiquated abuses; above all, the Poor Law Amendment Act, 1834, did in reality introduce, and introduce at once, a fundamental revolution in the social condition of England. But even these laws fell far short of giving full effect to the principles which they more or less embodied; the Reform Act had no finality, and the Municipal Corporations Act, 1882,1 bears witness in its list of sixty-eight repealed enactments to the gradual procedure by which modern municipal government has received its development.2

The slowness with which legislative opinion acts is not quite the same thing as its continuity, though the bit by bit or gradual system of law-making dear to Parliament, does in truth afford strong evidence that the course of opinion in England has certainly during the nineteenth century, and probably ever since parliamentary government became to any degree a reality, been continuous, i.e. has been rarely marked by sudden breaks.1 In any case it is certain that during the nineteenth century the legislative opinion of the nation has never veered round with sudden violence.

To this general statement an objection may possibly be taken, based on the history of the great Reform Act. In 1832, it may be said, passionate enthusiasm for parliamentary reform and all the innovations to which it gave birth, displaced, as it were, in a moment the obstinate toryism which for nearly half a century had been the accepted creed, if not of the whole nation, yet assuredly of the governing classes; here we have a revolution in popular opinion of which the violence was equalled by the suddenness.

The objection is worth consideration, but can easily be met.

The true answer is, that there exists an important distinction between a change of public opinion and an alteration in the course of legislation. The one has in modern England never been rapid; the other has sometimes, though rarely, been sudden; the history of the Reform Act admirably illustrates this difference. The spirit of Benthamite liberalism,2 which in 1832 put an end to the reign of toryism, had developed slowly and gradually during a period of more than thirty years. We have here no sudden conversion of the people of England from one political faith to another; the really noteworthy fact is the length of time needed in order to convince Englishmen that their ancient institutions stood in need of alteration. Even when this conviction had been adopted by the mass of the middle classes, public opinion, owing to the constitution of the unreformed Parliament, could not be immediately transformed into legislative opinion. The very need for the reform of Parliament of itself prolonged for some years the period of legislative inactivity. At last the dominant opinion of the country, strengthened no doubt by external circumstances, such as the French Revolution of 1830, became the legislative opinion of the day. Liberalism of the Bethamite type was the political faith of the time. Its triumph was signalised by the Reform Act. Then, indeed, there did take place a startling change in legislation, but the suddenness of this change was due to the fact that a slowly developed revolution in public opinion had been held in check for years, and had, even when it became general, not been allowed to produce its proper effect on legislation; hence such an accumulation of abuses as made their rapid removal desirable, and in some cases possible. For, after all, the rapidity and the suddenness of the change in the course of legislation may easily be exaggerated. A critic who traces the history of special reforms which followed the Reform Act, is far more often struck by the slowness and the incompleteness, than by the rapidity of their execution. In any case the history of the Reform Act in reality supports the doctrine, that the development of legislative opinion has been throughout the nineteenth century slow and continuous.

This continuity is closely connected with some subordinate characteristics of English legislative opinion.

The opinion which changes the law is in one sense the opinion of the time when the law is actually altered; in another sense it has often been in England the opinion prevalent some twenty or thirty years before that time; it has been as often as not in reality the opinion not of to-day but of yesterday.

Legislative opinion must be the opinion of the day, because, when laws are altered, the alteration is of necessity carried into effect by legislators who act under the belief that the change is an amendment; but this law-making opinion is also the opinion of yesterday, because the beliefs which have at last gained such hold on the legislature as to produce an alteration in the law have generally been created by thinkers or writers, who exerted their influence long before the change in the law took place. Thus it may well happen that an innovation is carried through at a time when the teachers who supplied the arguments in its favour are in their graves, or even—and this is well worth noting—when in the world of speculation a movement has already set in against ideas which are exerting their full effect in the world of action and of legislation. Bentham’s Defence of Usury1 supplied every argument which is available against laws which check freedom of trade in money-lending. It was published in 1787; he died in 1832. The usury laws were wholly repealed in 1854, that is sixty-seven years after Bentham had demonstrated their futility; but in 1854 the opponents of Benthamism were slowly gaining the ear of the public, and the Money-lenders’ Act, 1900, has shown that the almost irrebuttable presumption against the usury laws which was created by the reasoning of Bentham has lost its hold over men who have never taken the pains or shown the ability to confute Bentham’s arguments. Nor is there anything mysterious about the way in which the thought or sentiment of yesterday governs the legislation or the politics of to-day. Law-making in England is the work of men well advanced in life; the politicians who guide the House of Commons, to say nothing of the peers who lead the House of Lords, are few of them below thirty, and most of them are above forty years of age. They have formed or picked up their convictions, and, what is of more consequence, their prepossessions, in early manhood, which is the one period of life when men are easily impressed with new ideas. Hence English legislators retain the prejudices or modes of thinking which they acquired in their youth; and when, late in life, they take a share in actual legislation, they legislate in accordance with the doctrines which were current, either generally or in the society to which the law-givers belonged, in the days of their early manhood. The law-makers, therefore, of 1850 may give effect to the opinions of 1830, whilst the legislators of 1880 are likely enough to impress upon the statute-book the beliefs of 1860, or rather the ideas which in the one case attracted the young men of 1830, and in the other the youth of 1860.1 We need not therefore be surprised to find that a current of opinion may exert its greatest legislative influence just when its force is beginning to decline. The tide turns when at its height; a school of thought or feeling which still governs law-makers has begun to lose its authority among men of a younger generation who are not yet able to influence legislation.

In England during the last three or four centuries, and especially during the nineteenth century, there has always at any given era existed some prevalent or dominant body of public opinion which in its turn has been succeeded by some different, it may be by some distinctly opposed, school of thought, but the periods during which each body of opinion has been more or less supreme, cannot be marked off from one another by any strict or rigid line. Currents of opinion have a tendency to run into one another; periods of opinion overlap.

Historians tell us that if we survey the era of the Reformation it is all but impossible to fix the exact date at which Englishmen definitely accepted Protestantism, and that the difficulty of fixing the date at which the country could be finally ranged among Protestant rather than Roman Catholic communities, arises from the fact that the change of belief, which ultimately became perfectly marked, was, in the case of individuals, if we study their personal history, and therefore in the case of the indefinite number of persons who made up the whole English nation, vague, partial, and ill-defined. Elizabeth carried through the Reformation, but Elizabeth entertained beliefs or sympathies which belonged rather to Roman Catholicism than to Protestantism. Of many among her courtiers and servants it is hardly possible to say whether they were Catholics or Protestants. Self-interest, no doubt, had a good deal to do with the easy transition of ambitious statesmen from one creed to another, in accordance with the wishes of the reigning monarch or the exigencies of the time; a revolutionary era is unfavourable to conscientious scrupulosity and promotes shiftiness. But the conduct of a whole nation is governed by something better than sordid views of self-interest. The instability of men’s religious professions was, we may be sure, in the main due to the uncertainty and indefiniteness of their own convictions. The merit, or the demerit, of the ecclesiastical system established by the Tudors was that it made easy the blending of old with new beliefs; and the indefiniteness of the line which, even at epochs of deep and violent revolutions in belief, divides one body of opinion from another is still more marked when we come to consider the bodies of legislative opinion which have been dominant during the nineteenth century; for there was during that century nothing violent in the opposition between different schools of thought, and every man of average courage and independence was at liberty to obey the natural and therefore, in many cases, most illogical developments of his own convictions. An ardent reformer of 1832 could as a “conservative” of 1838 mingle traditions inherited from old toryism with ideas derived from new and Benthamite liberalism.

Fourthly, The reigning legislative opinion of the day has never, at any rate during the nineteenth century, exerted absolute or despotic authority. Its power has always been diminished by the existence of counter-currents or cross-currents of opinion1 which were not in harmony with the prevalent opinion of the time.

A counter-current here means a body of opinion, belief, or sentiment more or less directly opposed to the dominant opinion of a particular era.

Counter-currents of this kind have generally been supplied by the survival of ideas or convictions which are gradually losing their hold upon a given generation, and particularly the youthful part thereof. This kind of “conservatism,” which prompts men to retain convictions which are losing their hold upon the mass of the world, is found, it should be remarked, as much among the adherents of one religious or political creed as of another. Any Frenchman who clung to Protestantism during the reign of Louis the Fourteenth; any north-country squire who in the England of the eighteenth century adhered to the Roman Catholicism of his fathers; Samuel Johnson, standing forth as a Tory and a High Churchman amongst Whigs and Free Thinkers; the Abbé Grégoire, retaining in 1830 the attitude and the beliefs of a bishop of that constitutional church of France whereof the claims have been repudiated at once by the Church and by the State; James Mill, who, though the leader in 1832 of philosophic Radicals, the pioneers as they deemed themselves of democratic progress, was in truth the last “of the eighteenth century”2 —are each and all of them examples of that intellectual and moral conservatism which everywhere, and especially in England, has always been a strong force. The past controls the present.

Counter-currents, again, may be supplied by new ideals which are beginning to influence the young. The hopes or dreams of the generation just coming into the field of public life undermine the energy of a dominant creed.

Counter-currents of opinion, whatever their source, have one certain and one possible effect.

The certain effect is that a check is imposed upon the action of the dominant faith. Thus, from 1830 to 1850 the Benthamite liberalism of the day, which then exerted its highest authority, was held in check by the restraining power of the older and declining toryism. Hence the progress of parliamentary reform, that is, the advance towards democracy, was checked. The Reform Act remained unchanged for more than thirty years, though it did not satisfy the philosophic Radicals who desired the ballot, nor the democratic artisans who agitated for the People’s Charter. Reformers, no less than Tories, felt the influence of the counter-current. Some of the ablest among the Reform Ministry of 1832 had by 1834 turned Conservatives, and became in 1841 members of a Conservative Cabinet.

The possible, but far less certain, result of a strong counter-current may be to delay a reform or innovation1 for so long a time that ultimately it cannot be effected at all, or else, when nominally carried out, becomes a measure of an essentially different character from the proposal put forward by its original advocates. Delay thus caused, while it hinders the growth or application of the dominant political or social faith, may introduce into this faith itself an essential modification. The toryism, for instance, which in 1785 rejected Pitt’s proposal to disfranchise thirty-six rotten boroughs, with compensation to their owners, and to give additional members to the counties and to London, did much more than arrest the reform of Parliament for all but half a century. The Reform Act of 1832 was different in principle from the measure proposed by Pitt; the Whig reformers of 1832 were unlike the democrats or the Tories of 1785. The liberalism of 1830 again found its authority and effective power diminished even in the hey-day of its triumph by surviving toryism, and progress towards democracy was, in a sense at any rate, checked till 1867. But this check meant much more than the mere postponement of liberal reforms. Ancient toryism died hard. It lived long enough to leave time for the rise of a new toryism in which democratic sentiment deeply tinged with socialism, blends with that faith in the paternal despotism of the State which formed part of the old Tory creed. Liberalism itself has at last learned to place no small confidence in the beneficent effects of State control; but this trust, whether well founded or not, is utterly foreign to the liberalism of 1832.1

The assertion that to delay the action of a political creed may introduce into it essential modification, is opposed to the superstition, propagated by many eminent writers, that reformers, though baffled during their lifetime by the opposition of ignorance, prejudice, or selfishness, may count on their efforts being crowned with success in some subsequent age. This is the notion which underlies such an assertion as that “the failure of the [philosophic] Radicals of the second quarter of the nineteenth century was a failure which may be considered equivalent to success. The causes which they espoused triumphed so completely that the Tories of this generation are more Liberal than the Liberals of 1832.”1 But history lends no countenance to the optimism which it is alleged to encourage. Neither the democratic toryism nor the socialistic liberalism of to-day is the philosophic radicalism of Bentham, of Grote, or of Molesworth. The strong counter-current of ancient toryism has, by delaying their action, modified all the political beliefs of 1832.

A cross-current of opinion may be described as any body of belief or sentiment which, while strong enough ultimately to affect legislation, is, yet in a measure independent of, though perhaps not directly opposed to, the dominant legislative creed of a particular era.2 These cross-currents arise often, if not always, from the peculiar position or prepossessions of particular classes, such as the clergy, the army, or the artisans, who look upon the world from their own special point of view. Such a cross-current differs from a counter-current in that it does not so much directly oppose the predominant opinion of a given time as deflect and modify its action. Thus ecclesiastical legislation since 1832 will never be understood by any historian who does not take into account both the general current of public opinion, the trend whereof has been more or less anti-clerical, and also the strong cross-current of clerical opinion which, favouring, as it naturally has done, the authority of the established Church, has affected legislation, not only as to ecclesiastical matters, but also in spheres such as that of national education, which appear at first sight to lie somewhat outside the operation of ecclesiastical beliefs.

Fifthly, Laws foster or create law-making opinion.

This assertion may sound, to one who has learned that laws are the outcome of public opinion, like a paradox; when properly understood it is nothing but an undeniable though sometimes neglected truth.

Every law or rule of conduct must, whether its author perceives the fact or not, lay down or rest upon some general principle, and must therefore, if it succeeds in attaining its end, commend this principle to public attention or imitation, and thus affect legislative opinion.1 Nor is the success of a law necessary for the production of this effect. A principle derives prestige from its mere recognition by Parliament, and if a law fails in attaining its object the argument lies ready to hand that the failure was due to the law not going far enough, i.e. to its not carrying out the principle on which it is founded to its full logical consequences.1 The true importance, indeed, of laws lies far less in their direct result than in their effect upon the sentiment or convictions of the public.

The Reform Act of 1832 disfranchised certain corrupt boroughs, and bestowed on a limited number of citizens belonging mainly to the middle class, the right to vote for members of Parliament. But the transcendent importance of the Act lay in its effect upon public opinion. Reform thus regarded was revolution. It altered the way in which people thought of the constitution, and taught Englishmen, once and for all, that venerable institutions which custom had made unchangeable could easily, and without the use of violence, be changed. It gave authority to the democratic creed, and fostered the conviction or delusion that the will of the nation could be expressed only through elected representatives. The arguments in favour of practical conservatism which, put forward by Burke or Paley, satisfied at least two generations, so lost their popular force that modern Conservatives, no less than modern Liberals, find it hard to understand the attitude towards reform of men as able as Canning or Sir Walter Scott.1

The new poor-law did much more than apply a drastic remedy to a dangerous social disease: it associated pauperism—a different thing from poverty—with disgrace; it revived, even among the poor, pride in independence, and enforced upon the whole nation the faith that in the battle of life men must rely for success, not upon the aid of the State, but upon self-help.

The Divorce Act of 1857 on the face of it did no more than increase the facilities for obtaining divorce. It in reality gave national sanction to the contractual view of marriage, and propagated the belief that the marriage contract, like every other agreement, ought to be capable of dissolution when it fails to attain its end. This Act and the feelings it fostered are closely related to the Married Women’s Property Acts, 1870-1893. Nor can any one doubt that these enactments have in their turn given strength to the belief that women ought, in the eye of the law, to stand substantially on an equality with men, and have encouraged legislation tending to produce such equality. In this matter laws have deeply affected not only the legislative but also the social opinion of the country as to the position of women. It is further clear that the statutes to which reference has here been made, and others like them, have all tended to strengthen that faith in laissezfaire which is of the very essence of legislative Benthamism. Law and opinion, indeed, are here so intermixed that it is difficult to say whether opinion has done most to produce legislation or laws to create a state of legislative opinion.

That law creates opinion is plain enough as regards statutes which obviously give effect, even though it may be imperfectly, to some wide principle, but holds at least equally true of laws passed to meet in the readiest and often most offhand manner some pressing want or popular demand. People often, indeed, fancy that such random legislation, because it is called “practical,” is not based on any principle, and therefore does not affect legislative opinion. But this is a delusion. Every law must of necessity be based on some general idea, whether wise or foolish, sound or unsound, and to this principle or idea it inevitably gives more or less of prestige. A member of Parliament is garotted;1 a demand is made that garotters shall be flogged; a law is passed to meet this wish. The Act, whether wise or not, rests upon and countenances the notion, combated by the wisest philanthropists of an earlier generation, that severity rather than certainty of punishment is the best check on crime. It also strengthens the belief, as to the truth whereof moralists are not agreed, that a main object of punishment is the satisfaction of the feeling which, according to one’s point of view, may be described as either the natural sentiment of justice or the natural sentiment of vindictiveness. The Garotters Act, 1863, therefore clearly did affect legislative opinion. The Money-lenders Act, 1900, again, may well be called an Act for the suppression of Isaac Gordon, since it was to a great extent the outcome of indignation against the rapacity and cruelty of that particular usurer. But this Act, though produced by temporary feeling, not only revives the usury laws, but gives expression and authority to beliefs supposed to have been confuted by reason.

It is far, indeed, from being true that laws passed to meet a particular emergency, or to satisfy a particular demand, do not affect public opinion; the assertion is at least plausible, and possibly well founded, that such laws of emergency produce, in the long run, more effect on legislative opinion than a law which openly embodies a wide principle. Laws of emergency often surreptitiously introduce or reintroduce into legislation, ideas which would not be accepted if brought before the attention of Parliament or of the nation. Is it certain that the legislators who passed the Money-lenders Act, 1900, might not have hesitated formally to re-enact the usury laws which Parliament deliberately repealed in 1854? Laws, indeed, passed for a limited or practical purpose—described as they are by the far too complimentary term of “tentative”1 legislation—exert the greater moral influence because they fall in with our English preference for dealing only with the special matter actually in hand, and with our profound reverence for precedent. Yet this apparent prudence is, in reality, often no better than the height of rashness. A principle carelessly introduced into an Act of Parliament intended to have a limited effect may gradually so affect legislative opinion that it comes to pervade a whole field of law.

In 1833 the House of Commons made for the first time a grant of something less than £20,000 to promote the education of the people of England. The money, for want of any thought-out scheme based on any intelligible principle, was spent on a sort of subscription to two societies which, supported by voluntary contributions and representing, the one the Church of England and the other, in effect, the Dissenters, did what they could in the way of affording to the English poor elementary education, combined with religious instruction. This niggardly,1 haphazard subscription has proved to contain within it all the anomalies of the system which, now costing the country some £18,000,000 a year, is embodied in the Education Acts 1870-1902, with their universal, State-supported, and compulsory, yet to a great extent denominational, scheme of national education.2

So much as to the influence of law on opinion, which, after all, is merely one example of the way in which the development of political ideas is influenced by their connection with political facts. Of such facts laws are among the most important; they are therefore the cause, at least, as much as the effect of legislative opinion.1

It is a plausible theory, though one which is perhaps oftener entertained than explicitly stated, that the growth of English law has been governed by a tendency towards democracy. Our best plan therefore will be to examine the relation between the advance of democracy and the course of legislation during the nineteenth century,2 and then to consider what have been the main currents of predominant opinion during that period, and trace the influence of each of these3 on the history of the law.

[1 ]As to judicial legislation and public opinion, see Lect. XI., post.

[2 ]In these lectures generally termed “collectivism.” See Lect. IV. p. 64, post.

[1 ]Peel in a letter to Croker (March 23, 1820) describes public opinion as “the tone of England—of that great compound of folly, weakness, prejudice, wrong feeling, right feeling, obstinacy, and newspaper paragraphs, which is called public opinion.” See Thursfield’s Peel, p. 19.

[1 ]Compare Macaulay’s essay on “Gladstone on Church and State.”

[1 ]Mill, On Liberty, p. 119.

[2 ]It may very well, owing to the condition of the world, and especially to the progress of knowledge, present itself at the same time to two or more persons who have had no intercommunication. Bentham and Paley formed nearly at the same date a utilitarian system of morals. Darwin and Wallace, while each ignorant of the other’s labours, thought out substantially the same theory as to the origin of species.

[1 ]To take an historic instance of world-wide celebrity, it is certain that the destruction of Jerusalem must have done at least as much as Pauline or other teaching towards winning over to Christianity Jews or Jewish proselytes.

[2 ]Written 1898. Carlyle was in 1846 a convinced Free Trader. He thought he had found his strong man in Peel. The Repeal of theCorn Laws seemed to prove it. “Whatever,” said he, “were the spoken unveracities of Parliament—and they are many on all hands, lamentable to Gods and men—here has a great veracity been done in Parliament, considerably our greatest for many years past; a strenuous, courageous, and needful thing.” Cromwell’s Letters and Speeches, Firth’s Introduction, p. xlix.

[1 ]It has been argued, by critics entitled to respect, that Cobden, when he entered into a commercial treaty with France, compromised, for the sake of a limited extension of free trade, the principles on which alone free trade admits of complete defence. Cobden was a keen logician, and more nearly a systematic thinker than most politicians; this criticism, therefore, on the treaty with France, if it be to any extent sound, affords a striking example of the slight effect which the abstract arguments against protection might produce on the mind even of a leading free trader.

[1 ]See Anson, Law and Custom of the Constitution, Part I. Parliament (3rd ed.), pp. 96, 97.

[2 ]See for list of Factory Acts, extending from the Health and Morals Act, 1802, 42 Geo. III. c. 73, to the Factory and Workshop Act, 1901, 1 Edw. VII. c. 22, Hutchins and Harrison, History of Factory Legislation, p. 323.

[1 ]The best specimen of consolidation to be found in the statute-book.

[2 ]To appreciate to the full the nature of this method one must remember that the sphere of municipal government has to a great extent been moulded by a vast number of private bills. See Clifford, Private Bill Legislation.

[1 ]Nor does the apparent suddenness of the revolution in public sentiment at the time of the Restoration afford any real exception to the rule here laid down.

[2 ]See Lect. VI., post.

[1 ]Quaritch’s Catalogue, No. 250, p. 84, contains a copy of Bentham on Usury, dated 1787.

[1 ]One, though of course merely a minor, reason for the violence exhibited by the revolutionary legislation of the National Assembly was, it is said, that the leaders of that body were comparatively young men.

[1 ]See Lect. X., post.

[2 ]See Mill, Autobiography, p. 204.

[1 ]A legislative innovation demanded by the opinion of a particular time may of course be of a reactionary character, and may be resisted and deferred by the strength of a counter-current of liberal opinion.

[1 ]If any one doubts this statement let him consider one fact, and ask himself one question. In 1834 the Whigs and Radicals who reformed the poor law expected the speedy abolition of out-door relief; they hoped for and desired the abolition of the poor law itself. Do the Radicals of 1905 share these expectations and hopes?

[1 ]Life of Sir William Molesworth, by Mrs. Fawcett, LL.D., p. 81.

[2 ]Cross-currents of opinion, as also the predominant public opinion of a given time, may, it is true, be found, on careful examination, to be due to some general or common cause. Whether this be so or not is a question to be answered by the historian of opinion, but does not immediately concern a student occupied in ascertaining the relation between law and opinion. He accepts the existence of a cross-current of opinion as a fact, and devotes his attention to ascertaining the mode in which the influence on legislation of the general current of public opinion was thereby modified.

[1 ]A law which obviously fails in attaining its end may at times turn public opinion against the principle on which the law rests.

[1 ]If whipping does not suppress theft, let it be turned into severe flogging; if this be not enough, add exposure in the pillory; and if this will not do, try capital punishment. This is the sort of argument which, as long as men believed in the principle that severity of punishment is the best mode of hindering crime, continually increased the cruelty or harshness of our criminal law.

[1 ]Contrast Scott’s satisfaction at taking a Russian prince to Selkirk in 1826 “to see our quiet way of managing the choice of a national representative” (Scott, Journals, July 1, 1826) with the comments thereon of modern Liberals. Scott could not see that a system of representation which, formally at any rate, misrepresented the Scotch people could not, even though in some ways it worked well, be permanently maintained. Modern critics cannot see that a system of representation, which contradicted the most elementary principles of democracy, did in Scotland, at the beginning of the nineteenth century, in many respects work well, and, even, strange though the statement sounds, give effect to the wishes of the Scotch people. See Porritt. The Unreformed House of Commons, chap. xxxi.

[1 ]See Hansard, vol. clxix. p. 1305.

[1 ]The word “tentative” is too complimentary Parliament favours gradual legislation not from the desire, which would often be wise, to try an experiment in legislation by applying a wide principle to a very limited extent, e.g. within a small area, but from failure to perceive that a law which produces at the moment a very limited effect may involve the recognition of a principle of unlimited application. Indolence and ignorance, rather than any desire for scientific experiment, are the causes of hand-to-mouth legislation.

[1 ]The whole parliamentary grant for education in the United Kingdom in 1834 was less than a third of what was granted annually by the single State of Massachusetts with a population of less than a million. See Life of Sir William Molesworth, pp. 55, 56.

[2 ]In dealing with laws as the creators of opinion, I have, for the sake of clearness, referred only to laws enacted by Parliament, but it is certain that judicial legislation affects opinion quite as strongly as does parliamentary legislation. See “Judicial Legislation,” Lecture XI., post.

[1 ]“The development of political ideas is influenced in a different way by their connection with political facts. The ideas are related to the facts of political history, not only as effect to cause, but also as cause to effect.”—H. Sidgwick, Development of European Polity. p. 346.

[2 ]See Lecture III., post.

[3 ]See Lectures IV. to IX., post.