The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction to the Liberty Fund Edition
• Editor’s Note
• Preface to the First Edition
• Preface to the Second Edition
• 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
• I.: The Period of Old Toryism Or Legislative Quiescence (1800–1830) 1
• II.: The Period of Benthamism Or Individualism (1825–1870) 3
• III.: Period of Collectivism (1865–1900) 5
• Lecture V: The Period of Old Toryism Or Legislative Quiescence (1800–1830)
• (a): State of Opinion (1760–1830)
• (b): Absence of Changes In the Law
• (c): Why Considerable Changes Took Place During the Period of Quiescence
• (d): Close of the Period of Quiescence
• Lecture VI: The Period of Benthamism Or Individualism 1
• (a): Benthamite Ideas As to the Reform of the Law
• (b): the Acceptance of Benthamism
• (c): the Trend and Tendency of Benthamite Legislation
• Lecture VII: The Growth of Collectivism
• Tory Philanthropy and the Factory Movement
• Changed Attitude of the Working Classes
• Modification In Economic and Social Beliefs
• Characteristics of Modern Commerce
• Introduction of Household Suffrage, 1868–1884
• Lecture VIII: The Period of Collectivism
• (a): Principles of Collectivism
• (b): Trend of Collectivist Legislation
• Lecture IX: The Debt of Collectivism to Benthamism
• Lecture X: Counter-currents and Cross-currents of Legislative Opinion
• A.: the Course of Legislative Opinion
• B.: the Actual Course of Ecclesiastical Legislation
• Lecture XI: Judicial Legislation
• I.: The Special Characteristics of Judicial Legislation In Relation to Public Opinion
• II.: The Effect of Judge-made Law On Parliamentary Legislation
• Lecture XII: Relation Between Legislative Opinion and General Public Opinion
• I.: As to Analogous Changes of Opinion In Different Spheres and Also In the Lives of Individuals.
• II.: As to the Dependence of Legislative Opinion On the General Tendencies of English Thought.
• Appendix
• Note I.: The Right of Association
• Note II.: The Ecclesiastical Commission
• Note III.: University Tests
• Note IV.: Judge-made Law
• Note V.: Proposed Collectivist Legislation of 1905 *
• Introduction to the Second Edition

I.

The Period of Old Toryism or Legislative Quiescence (1800–1830)1

This was the era of Blackstonian optimism reinforced, as the century went on, by Eldonian toryism or reaction; it may be termed the period of legislative quiescence, or (in the language of censors) stagnation. Political or legislative changes were first checked by that pride in the English constitution, and intense satisfaction with things as they were, which was inherited from a preceding generation, and is best represented by the studied optimism of Blackstone; they were next arrested by that reaction against Jacobinism and revolutionary violence which is represented by the legislative timidity of Lord Eldon; he devoted his great intellectual powers (which hardly receive justice from modern critics) at once to the cautious elaboration of the doctrines of equity, and to the obstruction of every other change or improvement in the law. The reactionary character of this period increased rather than diminished as the century advanced. The toryism of 1815 or 1817 was less intelligent and more violent than the toryism of 1800. Laws2 passed during this period, and especially during the latter part thereof, assumed a deliberately reactionary form, and were aimed at the suppression of sedition, of Jacobinism, of agitation, or of reform. But though it is easy to find examples of reactionary legislation, the true characteristic of the time was the prevalence of quiescence or stagnation. Optimism had at least as much to do with the condition of public sentiment as had the dread of revolutionary propagandism.

[1. ]See R. K. Wilson, Modern English Law, chap. iii., and Lect. V., post.

It is for our present purpose convenient to treat 1800, in accordance with popular phraseology, as belonging to the nineteenth century.

[2. ]E.g. the great Combination Act, 1800, 40 Geo. III. c. 106; the Act of 1817, 57 Geo. III. c. 19, for the prevention of seditious meetings.