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(A): State of Opinion (1760–1830) - Albert Venn Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (LF ed.) 
Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century, edited and with an Introduction by Richard VandeWetering (Indianapolis: Liberty Fund, 2008).
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State of Opinion (1760–1830)
These seventy years constitute a period of legislative quiescence; the changelessness of the law is directly traceable to the condition of opinion.1
The thirty years from 1760 to 1790 may be well termed as regards their spirit, the age of Blackstone.2 English society was divided by violent though superficial political conflicts, but the tone of the whole time, in spite of the blow dealt to English prestige by the successful revolt of the Thirteen Colonies, was after all a feeling of contentment with, and patriotic pride in, the greatness of England and the political and social results of the Revolution Settlement. Of this sentiment Blackstone was the typical representative; every page of his Commentaries is pervaded by aggressive optimism.
Of a constitution, so wisely contrived, so strongly raised, and so highly finished, it is hard to speak with that praise, which is justly and severely its due:—the thorough and attentive contemplation of it will furnish its best panegyric. It hath been the endeavour of these commentaries, however the execution may have succeeded, to examine its solid foundations, to mark out its extensive plan, to explain the use and distribution of its parts, and from the harmonious concurrence of those several parts, to demonstrate the elegant proportion of the whole. We have taken occasion to admire at every turn the noble monuments of ancient simplicity, and the more curious refinements of modern art. Nor have its faults been concealed from view; for faults it has, lest we should be tempted to think it of more than human structure; defects, chiefly arising from the decays of time, or the rage of unskilful improvements in later ages. To sustain, to repair, to beautify this noble pile, is a charge intrusted principally to the nobility, and such gentlemen of the kingdom as are delegated by their country to parliament. The protection of The Liberty of Britain is a duty which they owe to themselves, who enjoy it; to their ancestors, who transmitted it down; and to their posterity, who will claim at their hands this, the best birthright, and the noblest inheritance of mankind.3
These words sum up the whole spirit of the Commentaries; they express the sentiment not of an individual, but of an era. Some twenty-five years or so later Burke noted, with undisguised sympathy, the conservatism of English thinkers.
“Many of our men of speculation,” he writes,
instead of exploding general prejudices, employ their sagacity to discover the latent wisdom which prevails in them. If they find what they seek, and they seldom fail, they think it more wise to continue the prejudice, with the reason involved, than to cast away the coat of prejudice, and to leave nothing but the naked reason; because prejudice, with its reason, has a motive to give action to that reason, and an affection which will give it permanence.4
Blackstone, it may be thought, though not a Tory, was an Old Whig of a pre-eminently conservative character. Burke had always in constitutional matters leaned strongly towards historical conservatism; in 1790, when the words just cited were published, hatred of Jacobinism had transformed him into a reactionist. But Paley was a man of a calm and judicial temperament. He felt no reverence for the historic dignity and pomp of English constitutionalism. Of the anomalies presented by the institutions which lie at the basis of civilised society he could write with extraordinary freedom. The famous illustration of the pigeons,5 to be found in the chapter “Of Property” in his Moral Philosophy got for him the nickname of “Pigeon-Paley,” and the warning of his friend, Law, justified by the event, that it would exclude him from a bishopric, only elicited the retort, “Bishop or no Bishop, it shall go in.” But this hard-headed and honest moralist who sacrificed his chance of promotion rather than suppress a sarcasm aimed at the evils of our own social system, and at monarchy itself, was at bottom as much a defender of the existing state of things as was Blackstone. A few sentences from Paley’s excellent chapter on the British Constitution reveal his whole position.6
Let us, before we seek to obtain anything more, consider duly what we already have. We have a House of Commons composed of 548 members, in which number are found the most considerable landholders and merchants of the kingdom; the heads of the army, the navy, and the law; the occupiers of great offices in the State; together with many private individuals, eminent by their knowledge, eloquence, or activity. Now, if the country be not safe in such hands, in whose may it confide its interests? If such a number of such men be liable to the influence of corrupt motives, what assembly of men will be secure from the same danger? Does any new scheme of representation promise to collect together more wisdom, or to produce firmer integrity? In this view of the subject, and attending not to ideas of order and proportion (of which many minds are much enamoured), but to effects alone, we may discover just excuses for those parts of the present representation, which appear to a hasty observer most exceptional and absurd.7
And Paley’s view of the unreformed House of Commons is in substance his view of the whole British constitution,8 and was shared by most statesmen of his day.
Blackstone, Burke, and Paley were, it may be thought, political philosophers who represent the speculative views of their time. Turn then to a writer the charm of whose style does not conceal the superficiality of his ideas, and whose whole aim as a man of letters was to express in graceful English the ideas current among ladies and gentlemen of average intelligence. Goldsmith, in his Citizen of the World, has precisely reproduced the tone of his day. The cosmopolitan Chinaman talks much of English law;9 he maintains, among other fanciful notions, the paradox that it was the height of wisdom to fill the statute-book with laws threatening offenders with most severe penalties which were rarely or never exacted.
In England, from a variety of happy accidents, their constitution is just strong enough, or if you will, monarchical enough, to permit a relaxation of the severity of laws, and yet those laws still to remain sufficiently strong to govern the people. This is the most perfect state of civil liberty, of which we can form any idea; here we see a greater number of laws than in any other country, while the people at the same time obey only such as are immediately conducive to the interests of society; several are unnoticed, many unknown; some kept to be revived and enforced upon proper occasions, others left to grow obsolete, even without the necessity of abrogation.
There is scarcely an Englishman who does not almost every day of his life offend with impunity against some express law, and for which in a certain conjuncture of circumstances he would not receive punishment. Gaming-houses, preaching at prohibited places, assembled crowds, nocturnal amusements, public shows, and an hundred other instances are forbid and frequented. These prohibitions are useful; though it be prudent in their magistrates, and happy for their people, that they are not enforced, and none but the venal or mercenary attempt to enforce them.
The law in this case, like an indulgent parent, still keeps the rod, though the child is seldom corrected. Were those pardoned offences to rise into enormity, were they likely to obstruct the happiness of society, or endanger the State, it is then that justice would resume her terrors, and punish those faults she had so often overlooked with indulgence. It is to this ductility of the laws that an Englishman owes the freedom he enjoys superior to others in a more popular government; every step therefore the constitution takes towards a democratic form, every diminution of the legal authority is, in fact, a diminution of the subject’s freedom; but every attempt to render the government more popular not only impairs natural liberty, but even will at last dissolve the political constitution.10
The feebleness of our Chinaman’s, or rather of Goldsmith’s, reasoning adds to its significance. When pleas in support of an obvious abuse, which are not plausible enough to be called fallacies, pass current for solid argument, they derive their force from the sympathy of the audience to which they are addressed.
The optimism, indeed, of the Blackstonian age is recognised by moralists of a later generation, among whom it excites nothing but condemnation.
“Then followed,” writes Dr. Arnold,
one of those awful periods in the history of a nation which may be emphatically called its times of trial. I mean those tranquil intervals between one great revolution and another, in which an opportunity is offered for profiting by the lessons of past experience, and to direct the course of the future for good. From our present11 dizzy state, it is startling to look back on the deep calm of the first seventy years of the eighteenth century. All the evils of society were yet manageable; while complete political freedom, and a vigorous state of mental activity, seemed to promise that the growth of good would more than keep pace with them, and that thus they might be kept down for ever. But tranquillity, as usual, bred carelessness; events were left to take their own way uncontrolled; the weeds grew fast, while none thought of sowing the good seed.12
These are the words of a censor who points a lesson intended for his own generation by condemnation of a past age with the virtues and defects whereof he has no sympathy; but to a critic who wishes to understand rather than to pass judgment upon a bygone time, it is easy to discover an explanation or justification of the optimism represented by Blackstone.
The proper task of the eighteenth century was the work of pacification. The problem forced by the circumstances of the time upon thinkers and upon statesmen was, how best to terminate feuds originally generated by religious differences, and to open, if possible, a path for peaceful progress. This problem had in England received an earlier and a more complete solution than in any other European State. The Revolution Settlement had given the death-blow to arbitrary power, and had permanently secured individual freedom. The Toleration Act might appear contemptible to teachers who, like Arnold, wished to realise an ideal—we may now surely say an unattainable and mistaken ideal—of the identification of State and Church, but to men of sense who test the character of a law by its ultimate tendency and result, the celebrated statute will appear to be one of the most beneficial laws ever passed by any legislature. For the Toleration Act gave from the moment it was enacted substantial religious freedom to the vast majority of the English people; in reality, though not in theory, it made active persecution an impossibility. It formed the foundation on which was built up such absolute freedom of opinion and discussion as has never hitherto existed, for any length of time, in any other country than England, or at any rate in any other country the institutions whereof have not been influenced by the principles latent, though not expressed, in the Toleration Act.
The Revolution Settlement, moreover, while establishing theological peace, laid the basis of national greatness. It made possible the union with Scotland. And the union doubled the power of Great Britain. When, in 1765, Blackstone published the first volume of his Commentaries, there were men still living who remembered the victories of Marlborough, and no one had forgotten the glories of the last war with France.
It is well known that the administration of the first William Pitt was a period of unanimity unparalleled in our annals: popular and antipopular parties had gone to sleep together, the great minister wielded the energies of the whole united nation; France and Spain were trampled in the dust, Protestant Germany saved, all North America was the dominion of the British Crown, the vast foundations were laid of our empire in India. Of almost instantaneous growth, the birth of two or three years of astonishing successes, the plant of our power spread its broad and flourishing leaves east and west, and half the globe rested beneath its shade.13
The Blackstonian era moreover was, in comparison with the past, an age of philanthropy. The laws were antiquated, the statute-book was defaced by enactments condemned by the humane feeling of later times. But humanity had greatly developed during the eighteenth century; the subjects of George III. had tenderer hearts than the subjects of Cromwell. Goldsmith’s childish paradox14 has no value as argument but much as history; it reminds us that the severity of the law was tempered by compassion. The rules of the common law15 and the statute-book contained survivals which were at variance with the actual humanity of the age; the law was often so savage as to shock every man of common kindliness. But the law was tempered by technical though absurd rules which gave a criminal undue chances of escape from conviction by the practical revolt of jurymen against the immorality of penalties out of all proportion to moral guilt, and by the constant commutation of capital for some lighter punishment. Legislators were stupid, but they were not intentionally cruel, and the law itself was more severe in theory than in practice.16
Penal laws against the Roman Catholics were, at any rate till 1778, outrageously oppressive. The Relief Act, 1778, 18 Geo. III. c. 60, however, taken together with the Relief Act, 1791, 31 Geo. III. c. 32, deprived the laws against Papists of their most oppressive features, and after 1778, or indeed before that date, a Roman Catholic gentleman in practice suffered, we may conjecture, no great grievance other than the exclusion (in itself a bitter wrong) from public life,17 and long before the passing of the Relief Acts the position of a Roman Catholic in England was enviable when compared with the lot of Protestants in France, till near the outbreak of the French Revolution. Here we touch upon the circumstances which in the eighteenth century gave a peculiar zest to an Englishman’s enjoyment of his liberties. He gloried in them because they were, in his eyes, the special privileges of Englishmen. Liberty is never so highly prized as when it is contrasted with the bondage of our neighbours; English freedom has received the warmest adoration not when most complete, but when it has shone by contrast with the intolerance and despotism which were bringing ruin upon France.18
The optimism which may well be called Blackstonianism, was then the natural tone of the age of Blackstone. It led in the sphere of law to contented acquiescence with the existing state of things, but it would be a grave mistake to suppose that the educated men of Blackstone’s generation were, until they were influenced by the course of the French Revolution, bigoted Tories, or in any sense reactionists. Lord Mansfield was in his judicial character an enlightened reformer. Ideas of progress and improvement do not easily associate themselves with the name of Lord Thurlow, yet to Thurlow is ascribed a most ingenious and beneficial device for securing the property rights of married women, and to his energetic interposition is due the recognition in 1801 by the House of Lords, of the right of a wife when suffering from outrageous ill-usage at the hands of her husband to obtain divorce by Act of Parliament.19 The Commentator was an active humanitarian. He would have called himself a Revolution Whig, and was devoted to the Whig doctrines of civil and religious liberty. Nor was there any inconsistency between a conservative turn of mind and that conception of freedom in accordance with law which the Whigs of the age of George the Third had inherited from their predecessors. The Whig Revolution of 1689, and even the Puritan Rebellion of 1642, were from one point of view conservative movements. Their aim was to preserve the law of the land from either innovations or improvements introduced by arbitrary power. Coke was the legal hero of the Puritans, and Coke was the stiffest of formalists. A devotee of the common law, he detested the reforming ideas of Bacon fully as much as the despotic arbitrariness of James. The Revolution of 1689 was conducted under the guidance of Whig lawyers; they unwittingly laid the foundations of a modern constitutional monarchy, but their intention was to reaffirm in the Bill of Rights and in the Act of Settlement, not the innate rights of man but the inherited and immemorial liberties of Englishmen. This is the basis of truth which underlies the paradox exaggerated by the rhetoric of Burke that the statesmen who carried through the Revolution of 1689 were not revolutionists. They assuredly believed that the liberties of Englishmen were bound up with the maintenance of the common law. The conservatism then of the English Revolution found its natural representatives in English lawyers. If they demurred to the introduction of wide reforms, their hesitation was due in part to the sound conviction that fixity of law is the necessary condition for the maintenance of individual rights and of personal liberty.
Under the horror excited by the excesses of the French Revolution, the mild and optimistic conservatism of Blackstone mingled, within twenty years after his death, with that strenuous and almost reactionary toryism of Eldon which not only retarded but for a time prohibited the removal of abuses. But it should be remembered that at the beginning of the nineteenth century the two different sentiments of optimism as regards English institutions, and of hatred of innovation co-existed, and together constituted the public opinion of the age. Blackstonianism, indeed, not only co-existed with, but survived the reactionary toryism which attained its height between, say, 1790 and 1820. To judge, indeed, from the expressions of Benthamite reformers, we may conclude, and probably with truth, that exaggerated satisfaction with English institutions retarded liberal reforms long after the panic excited by Jacobinism had passed away.20 In any case, it was this mixture of Blackstonian content with everything English, and Eldonian dread of any change which panic-stricken prejudice could term foreign or Jacobinical, that coloured the whole public opinion of 1800, and determined the course of legislation during the first twenty-five or thirty years of the nineteenth century.
[1. ]The distaste for legal changes which prevailed between 1800 and 1830 is distinctly traceable in part at least to the condition of opinion between 1760 and 1800.
[2. ]Birth 1723; publication of Commentaries, 1765–69; death 1780.
[3. ]Blackstone, Commentaries, iv. p. 443 (end of Book iv.).
[4. ]Burke, ii. p. 169. See also Appeal from the New to the Old Whigs, Burke, vi. pp. 263–265; Hallam, Middle Ages, ii. (12th ed.) p. 267; and Goldsmith, Works, iii., Citizen of the World, Letter iv.
[5. ]“If you should see a flock of pigeons in a field of corn; and if (instead of each picking where, and what it liked, taking just as much as it wanted, and no more) you should see ninety-nine of them gathering all they got into a heap; reserving nothing for themselves, but the chaff and refuse; keeping this heap for one, and that the weakest perhaps and worst pigeon of the flock; sitting round, and looking on all the winter, whilst this one was devouring, throwing about and wasting it; and, if a pigeon more hardy or hungry than the rest, touched a grain of the hoard, all the others instantly flying upon it, and tearing it to pieces; if you should see this, you would see nothing more than what is every day practised and established among men.”—Paley, Moral Philosophy, Book iii. chap. i. (12th ed.), pp. 105, 106.
[6. ]See especially Paley, Moral Philosophy, ii. (12th ed. 1799), pp. 217 and following. Paley’s account of the unreformed Parliament is specially valuable because it was published by a man of judicial intellect at a date (1785) when his judgment was unaffected alike by the excitement of the French Revolution and by the vehement controversies which forty-five or forty-seven years later preceded or accompanied the passing of the Reform Act.
[7. ]Paley, Philosophy, ii. pp. 220, 221.
[8. ]See G. Lowes Dickinson, The Development of Parliament, ch. i.
[9. ]This by the way is a curious illustration of the interest felt towards the end of the eighteenth century in legal speculations.
[10. ]Goldsmith, Works, iii., Citizen of the World, pp. 194, 195.
[12. ]Dr. Arnold, Miscellaneous Works (ed. 1845), p. 276. It seems clear that though Arnold refers definitely only to the first seventy years of the eighteenth century, he really has in his mind the tone of the whole of that century—at any rate till near the outbreak of the French Revolution.
[13. ]Arnold, Lectures on Modern History, pp. 262, 263 (2nd ed. 1843). It is intelligible enough that Arnold, who was essentially a moralist and only accidentally an historian, should add, “yet the worm at its root was not wanting.” But never did the convictions of a preacher more completely misrepresent an age which he knew only by reading or tradition. The Blackstonian era was a period of national strength and of most reasonable national satisfaction.
[14. ]See p. 54, ante.
[15. ]If a prisoner accused of felony stood mute, he could not be tried without his own consent. “To extort that consent he was (until 12 Geo. III. c. 20) subjected to the peine forte et dure, by being laid under a heavy mass of iron, and deprived almost entirely of food. Many prisoners deliberately preferred to die under this torture rather than be tried; because, by dying unconvicted, they saved their families from that forfeiture of property which a conviction would have brought about.” Kenny, Outlines of Criminal Law, p. 467. As late as 1772, when Mansfield and Blackstone were on the Bench, pedantry and callousness to suffering still kept alive torture which might end in death, and could not be defended on the ground, inadequate as it is, that torture may lead to the discovery of truth.
[16. ]See on this whole matter, L. Stephen, English Utilitarians, i. pp. 25, 26, who points out that “The number of executions in the early part of this [i.e. the nineteenth century] varied apparently from a fifth to a ninth of the capital sentences passed,” and refers to the Table in Porter’s Progress of the Nation (1851), p. 635. [Editor’s note: The following was added in the second edition.] “Not one in twenty of the sentences was carried into execution.” May, Constit. Hist. ii. (1863 ed.) c. xviii. p. 597.
[17. ]Compare Burke, speech at Bristol, previous to the election 1780, Works, iii. (ed. 1808) p. 389, which makes it apparent that, even prior to the Act of 1778, judges and juries threw every difficulty in the way of informers who proceeded against Roman Catholics for penalties. See Lecky, Hist. (1882) iii. p. 587.
[18. ]The free citizens of a state where the majority of the population were slaves have always been fanatical assertors of their own right to freedom.
[19. ]Campbell, Lives of Lord Chancellors, vii. (5th ed.), pp. 154, 155.
[20. ]Note the tone of the Benthamite school with regard to Blackstone. “He truckled,” writes Austin, “to the sinister interests and to the mischievous prejudices of power; and he flattered the overweening conceit of their national or peculiar institutions, which then was devoutly entertained by the body of the English people, though now [1826–32] it is happily vanishing before the advancement of reason.” Austin, Jurisprudence, i. (4th ed.), p. 71.