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(C): The Trend and Tendency of Benthamite Legislation - 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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The Trend and Tendency of Benthamite Legislation
Benthamite individualism possessed, as already noted,66 one peculiar characteristic. It was a movement which, under the influence of a teacher born with the genius of a law-maker, was immediately and intentionally directed towards the amendment of the law of England.
Hence a singular congruity or harmony in the whole trend of Benthamite legislation67 which, if we look not at the gradual steps by which it was carried out, but at the nature of the objects which it systematically pursued, might seem to be dictated by the will of a despotic sovereign inspired with the spirit of Bentham. For this legislation has, speaking broadly, aimed at, and in England to a great extent attained, four objects—and four objects alone—the transference of political power into the hands of a class which it was supposed was large and intelligent enough to identify its own interest with the interest of the greatest number—the promotion of humanitarianism—the extension of individual liberty—the creation of adequate legal machinery for the protection of the equal rights of all citizens.
Transference of Political Power. The Reform Act of 1832 was actively supported by Bentham’s disciples.68 It was not, judged by a modern standard, a very democratic measure.69 Its aim was to diminish the power of the gentry, and to transfer predominant authority to the middle classes. This characteristic of the Reform Act was at the very crisis of the movement for reform—7th October 1831—pressed by Brougham on the House of Lords. It is the people who are to be admitted to political power. He scorns the “mob.” He identifies the people with the middle classes.
“If there is the mob,” he says,
there is the people also. I speak now of the middle classes—of those hundreds of thousands of respectable persons—the most numerous, and by far the most wealthy order in the community; for if all your lordships’ castles, manors, rights of warren and rights of chase, with all your broad acres, were brought to the hammer, and sold at fifty years’ purchase, the price would fly up and kick the beam when counterpoised by the vast and solid riches of those middle classes, who are also the genuine depositaries of sober, rational, intelligent, and honest English feeling.70
“By the people, I repeat, I mean the middle classes, the wealth and intelligence of the country, the glory of the British name.”71 These are the men on whose political wisdom and conservatism Brougham, who at that moment was the popular hero, and was also closely connected with the Benthamites, relies.
Unable though they be to round a period, or point an epigram, they are solid, right-judging men, and, above all, not given to change. If they have a fault, it is that error on the right side—a suspicion of State quacks, a dogged love of existing institutions, a perfect contempt of all political nostrums. . . . Grave, intelligent, rational, fond of thinking for themselves, they consider a subject long before they make up their minds on it; and the opinions they are thus slow to form they are not swift to abandon.72
The Reform Act achieved its end and gave predominant authority to the middle class. Why, we ask, did Benthamite democrats so zealously support a law which went such a little way on the path of democracy? A partial answer is, that the Whigs had neither the wish nor the power to advance farther than they did in the democratic direction. The more complete answer is, as already suggested, that the Reform Act went very near to satisfying the desires and the sentiment of Benthamite liberalism. Benthamism was fundamentally a middle class creed,73 and the middle classes were more likely to give effect to the aspirations of utilitarianism than any other part of the community. James Mill more or less distinctly perceived that this was so. The great Reform Act was not the handiwork of the Benthamites, but it was in the truest sense the outcome of political utilitarianism.
The Municipal Reform Act, 1836, was a further step in the development of democratic Benthamism; it abolished the mass of practical abuses which were specially hateful to utilitarians. It also gave to the middle class, and even to inhabitants of boroughs who fell below the middle rank, the government and management of the cities in which they lived. It is noteworthy, however, that the reform of local government, as carried out during the era of Benthamism, did nothing for the country labourers. The administration of the counties was left in the hands of the magistrates. Yet it must be remembered that the New Poor Law reformed the social condition of the labourers and placed poor relief under the supervision of the State.
Humanitarianism. The promotion of humanity—that is, the protection of human beings from unnecessary pain and suffering—was in accordance with the fundamental principle of Benthamite philosophy. Hence the attack by utilitarians on the infliction by law of any kind of pain74 which appeared to be needless. To this source is due the mitigation of the criminal law which abolished the whipping of women,75 the pillory,76 and hanging in chains,77 which between 182778 and 186179 reduced the number of crimes punishable with death till in effect capital punishment has been limited to cases of murder, which reformed our prisons, which at one time all but did away with whipping as a punishment for crime, and which, towards the end of the specially Benthamite period forbade the public execution of murderers.80 From the same humanitarian movement sprung the various enactments for the protection of children, of which a good example is afforded by the laws prohibiting their employment as chimney sweeps,81 and a whole series of Acts beginning in 1828,82 and at last forming something like a complete code for the protection of lunatics, and for guarding sane men from the risk (under the old law or want of law not inconsiderable) of imprisonment in madhouses. Nor did Bentham and his school interest themselves solely in diminishing the sufferings of their fellow-men; their humanity extended to the lower animals. From 1822 onwards, laws for the prevention of cruelty to animals prohibited bull-baiting, cock-fighting, and ultimately cruelty to animals generally.83 It has been well remarked that the introduction into our legislation of a principle which had hardly received recognition, namely, that it was part of humanity to diminish as far as possible the pains inflicted by man on the lower animals, was, in the earlier legislation on the subject excused, so to speak, in the eyes of the public by the plea that the cruelties prohibited, e.g. bull-baiting or cock-fighting, promoted idleness and disorder, or otherwise demoralised the people.84 Under the head of humanitarianism might be well brought the emancipation of the negroes, for the palpable cruelty of negro slavery assuredly excited the indignation of the English people as much as, if not more than the injustice of holding human beings in bondage. But negro emancipation properly belongs to another head of individualistic legislation, namely—
Extension of Individual Liberty. The term “individual liberty” or “personal freedom” must here be taken in a very wide sense. The extension of individual liberty as an object of Benthamite legislation includes, no doubt, that freedom of person or, in other words, that right of unimpeded physical movement which is protected by the Habeas Corpus Acts, and by an action, or it may be a prosecution, for assault or false imprisonment, but it includes also the striking off of every unnecessary fetter which law or custom imposes upon the free action of an individual citizen. The aim of Benthamite reformers was, in short, to secure to every person as much liberty as is consistent with giving the same amount of liberty to every other citizen.85 In order to attain this end the men who guided English legislation for the forty years which followed the great Reform Act, introduced modifications into every branch of the law.
In the name of freedom of contract the crimes of forestalling and regrating (1844, 7 & 8 Vict. c. 24) and of usury (1833–1854) ceased to exist; in 1846 and in 1849 the Navigation Laws were repealed. By the Marriage Act, 1835, and succeeding legislation which reached for the moment its conclusion in 1898,86 marriage has been treated as a contract in which the Church has no special concern, and by the Divorce Act of 1857, has been made, like other contracts, legally dissolvable, though from its peculiar character dissolvable only under special circumstances, and by the action of the High Court.
To the desire to extend contractual freedom belongs the reform87 in the Combination Law, effected under the direct influence of the Benthamite school in accordance with the principles of individualism by means of the two Combination Acts of 1824–1825.
In 1824 the Act 5 Geo. IV. c. 95 placed the whole Combination Law on a new basis. Its provisions have thus been summarised by Sir Robert Wright:
In 1824 the Act of 5 Geo. IV. c. 95 repealed all the then existing Acts relating to combinations of workmen, and provided that workmen should not by reason of combinations as to hours, wages, or conditions of labour, or for inducing others to refuse work or to depart from work, or for regulating “the mode of carrying on any manufacture, trade, or business, or the management thereof,” be liable to any criminal proceeding or punishment for conspiracy or otherwise under the statute or common law. By another section it extended a similar immunity to combinations of masters. On the other hand it enacted a penalty of two months’ imprisonment for violence, threats, intimidation, and malicious mischief.88
This Act was repealed after a year’s trial and was replaced by the Combination Act, 1825, 6 Geo. IV. c. 129, which also has been thus summarised by Wright:
This Act again repealed the older statutes, but without mention of common law. It provided summary penalties for the use of violence, threats, intimidation, molestation, or obstruction by any person for the purpose of forcing a master to alter his mode of business, or a workman to refuse or leave work, or of forcing any person to belong or subscribe or to conform to the rules of any club or association. It did not expressly penalize any combination or conspiracy, and it exempted from all liability to punishment the mere meeting of masters or workmen for settling the conditions as to wages and hours on which the persons present at the meeting would consent to employ or serve.89
Even a trained lawyer may fail at first sight to perceive wherein lies the difference between the two statutes, or to conjecture why the one was substituted for the other, yet it will be found that the similarity and the difference between the two enactments are equally important, and that, whilst the repeal of the earlier Act is perfectly explainable, the singular course of legislation in 1824 and 1825 is the exact reflection of the current of opinion.
As to the Points of Similarity. Both Acts aim at the same object; they both reverse the policy of 1800, and are intended to establish free trade in labour; they both, as a part of such freedom of trade, concede, to men and to masters alike, the right to discuss and agree together as to the terms on which they will sell or purchase labour; both give expression to the idea that the sale or purchase of labour should be as entirely a matter of free contract as the sale or purchase of boots and shoes. Both Acts therefore repeal the great Combination Act and all earlier legislation against trade combinations. Both Acts, lastly, impose severe penalties90 on the use of violence, threats, or intimidation whereby the contractual freedom of an individual workman or an individual master may be curtailed, and both Acts provide the machinery whereby these penalties may be summarily enforced. The labour contract under each Act is intended to be perfectly free. Combinations to raise or lower wages and the like are no longer forbidden, but neither individuals nor combinations are to interfere with the right of each person freely to enter into any labour contract which may suit the contracting parties.
As to the Points of Difference. The Act of 1824 allows freedom of combination for trade purposes, both to men and to masters, in the very widest terms,91 and (which is the matter specially to be noted) exempts trade combinations from the operation of the law of conspiracy. It then imposes penalties upon the use of violence, threats, or intimidation for certain definite purposes, e.g. the compelling a workman to depart from his work.
The Act of 1825, on the other hand, in the first place, imposes penalties upon the use of violence, threats, or intimidation for almost any purpose which could conceivably interfere with individual freedom of contract on the part of an individual workman or with the right of a master to manage his business in the way he thought fit. The Act, in the next place, confers indirectly92 upon workmen and masters a limited right to meet together and come to agreements for settling the rate of wages, and the terms, which the persons persent at the meeting will accept or give. The Act, lastly, revives the law of conspiracy in regard to trade combinations.
The result, therefore, of the Combination Act, 1825 (at any rate, as interpreted by the courts), was this:
Any trade combination was a conspiracy, unless it fell within the limited right of combination given by the Act of 1825.93
A strike, though not necessarily a conspiracy, certainly might be so, and a trade union, as being a combination in restraint of trade, was at best a nonlawful society,94i.e. a society which, though membership in it was not a crime, yet could not claim the protection of the law.
The course of parliamentary legislation with regard to the Combination Law in 1824 and 1825 was singular, but in all its features it exactly represents the Benthamite individualism of the day. The Act of 1824 was the work of known Benthamites. McCulloch advocated its principles in the Edinburgh Review; Joseph Hume brought it as a Bill into Parliament; the astuteness of Francis Place, in whose hands Hume was a puppet, passed into law a Bill, of which the full import was not perceived, either by its advocates or by its opponents. The Act gives expression in the simplest and most direct form to two convictions pre-eminently characteristic of the Benthamites and the political economists. The one is the belief that trade in labour ought to be as free as any other kind of trade; the other is the well-grounded conviction that there ought to be one and the same law for men as for masters; Adam Smith had, about fifty years earlier, pointed out that trade combinations on the part of workmen were blamed and punished, whilst trade combinations on the part of masters were neither punished nor indeed noticed.95 Liberty and equality, each of which represent the best aspect of laissez faire, were the fundamental ideas embodied in the Benthamite reform.
Why, then, was the Act of 1824 repealed and replaced by the Act of 1825?
Something—even a good deal—was due to accidental circumstances. In spite of the sagacious advice of Francis Place, workmen, who for the first time enjoyed the right of combination, used their newly acquired power with imprudence, not to say unfairness. A large number of strikes took place, and these strikes were accompanied by violence and oppression. The artisans of Glasgow “boycotted,” as we should now say, and tried to ruin an unpopular manufacturer. The classes whose voices were heard in Parliament were panic-struck, and their alarm was not unreasonable. Hence the demand for the repeal of the Combination Act, 1824. Place, after his manner, attributes the success of this demand to the baseness of parliamentary statesmen, to the bad faith of Huskisson, and, above all, to the machinations of one politician, who “lied so openly, so grossly, so repeatedly, and so shamelessly” as to astonish even the critic, who had always considered this individual “a pitiful shuffling fellow.”96 This pitiful, shuffling fellow was the well-known Sir Robert Peel.97 He had, at any rate, as we might expect, something which was worth hearing to urge in support of his conduct. Peel has left on record the ground of his opposition to the Act of 1824. It is that “sufficient precautions were not taken in [that Act] . . . to prevent that species of annoyance which numbers can exercise towards individuals, short of personal violence and actual threat, but nearly as effectual for its object.”98
Here we pass from the transitory events of a particular year and touch the true, if unperceived, cause of the reaction against the Combination Act of 1824. The right of combination which was meant to extend personal freedom was so used as to menace the personal freedom both of men and of masters. By the legislation of 1824 Benthamites and economists—that is, enlightened individualists—had extended the right of combination in order to enlarge the area of individual freedom; by the Act of 1825 sincere individualists, among whom Peel may assuredly be numbered, limited the right of trade combination in order to preserve the contractual freedom of workmen and of masters. The men who passed the Act of 1824 meant to establish free trade in labour; they did not mean to curtail the contractual capacity of persons who preferred not to join, or resisted the policy of, trade unions. The two Acts which seem contradictory are in reality different applications of that laissez faire which was a vital article of the utilitarian creed. The Liberals who in 1824 had begun to guide legislative opinion were the sincerest and most enthusiastic of individualists. It is hard for the men of 1905 to realise how earnest eighty years ago was the faith of the best Englishmen in individual energy and in the wisdom of leaving every one free to pursue his own course of action, so long as he did not trench upon the like liberty or the rights of his fellows. To such reformers oppression exercised by the State was not more detestable than oppression exercised by trade unions. Place was a Benthamite fanatic. His finest characteristic was passionate zeal for the interest of the working class whence he sprung. He knew workmen well: he had no love for employers. Yet Place, and we may be sure many wiser men with him, believed and hoped that the repeal of the Combination Law of 1800 would put an end to trade unions.
“The combinations of the men are but defensive measures resorted to for the purpose of counteracting the offensive ones of their masters. . . . When every man knew that he could carry his labour to the highest bidder, there would be less motive for those combinations which now exist, and which exist because such combinations are the only means of redress that they have.”99
So Place in 1825. Eighteen years later thus writes Richard Cobden:
“Depend upon it nothing can be got by fraternising with trades unions. They are founded upon principles of brutal tyranny and monopoly. I would rather live under a Dey of Algiers than a trades committee.”100
In 1849 Miss Martineau is well assured that the Act of 1825 was a necessary and salutary measure:
By this Act [i.e. the Combination Act, 1825] combinations of masters and workmen to settle terms about wages and hours of labour are made legal; but combinations for controlling employers by moral violence were again put under the operation of the common law. By this as much was done for the freedom and security of both parties as can be done by legislation, which, in this matter, as in all others, is an inferior safeguard to that of personal intelligence.101
What is of even more consequence, the best and wisest of the judges who administered the law of England during the fifty years which followed 1825 were thoroughly imbued with Benthamite liberalism. They believed that the attempt of trade unions to raise the rate of wages was something like an attempt to oppose a law of nature. They were convinced—and here it is difficult to assert that they erred—that trade unionism was opposed to individual freedom, that picketing, for example, was simply a form of intimidation, and that, though a strike might in theory be legal, a strike could in practice hardly be carried out with effect without the employment of some form of intimidation either towards masters or non-unionists. No judges have ever deserved or earned more respect than Erle and Bramwell, yet Erle deliberately maintained that under the Act of 1825 any combination might be a conspiracy that interfered with “the free course of trade,” whilst Bramwell enounced the doctrine that “the liberty of a man’s mind and will to say how he should bestow himself and his means, his talents and his industry, is as much a subject of the law’s protection as that of his body.” His language is as wide as possible:
Generally speaking, the way in which people have endeavoured to control the operation of the minds of men is by putting restraints on their bodies, and therefore we have not so many instances in which the liberty of the mind is vindicated as that of the body. Still, if any set of men agreed amongst themselves to coerce that liberty of mind and thought by compulsion and restraint, they would be guilty of a criminal offence, namely, that of conspiring against the liberty of mind and freedom of will of those towards whom they so conducted themselves. I am referring to coercion and compulsion—something that is unpleasant and annoying to the mind operated upon; and I lay it down as clear and undoubted law that, if two or more persons agree that they will by such means co-operate together against that liberty, they are guilty of an indictable offence.102
Bramwell’s doctrine, moreover, laid down in 1867, harmonises with the general spirit of Mill’s On Liberty, which was the final and authoritative apology for the Benthamite faith in individual freedom.
We may feel, therefore, assured that the legislation of 1824–1825 was not intentionally unjust. It represented even in its fluctuation the best and most liberal opinion of the time. The experiment of trying to establish absolute free trade in labour was a wise one. Whether reformers who were prepared to try this experiment would not have done wisely if they had left the Act of 1824 unrepealed, admits of discussion. The Act of 1825 remained in force for well-nigh fifty years. Two things are certain. The Act excited much dissatisfaction among artisans; the Benthamite Liberals, just because they were prone to neglect the social aspect of human nature, and had therefore hardly considered the characteristics of combined action, found it difficult to provide any consistent principle for the amendment of the combination law.103
Among the efforts of Benthamism to increase the sphere of contractual freedom stands the creation (1856–1862) of companies with limited liability. Here we have in reality an extension of freedom of contract, though at this point individualistic and collectivist currents of opinion blend together, for while the power of individuals to trade without at the same time exposing all their property to the risk of loss, does assuredly give them the opportunity to make contracts which the common law of England would not sanction, yet, the transference of business from individuals to corporate bodies favours the growth of collectivism.
Freedom in dealing with property, and especially property in land, forms an essential part of the Benthamite conception of individual liberty. To extend this freedom in one way or another is the aim and effect of legislation such as the Prescription Act, 1832, 2 & 3 Will. IV. c. 71; the Inheritance Act, 1833, 3 & 4 Will. IV. c. 106; the Fines and Recoveries Act, 1833, 3 & 4 Will. IV. c. 74; the Wills Act, 1837, 1 Vict. c. 26; the Real Property Act, 1845, 8 & 9 Vict. c. 106; and all the statutes, none of them successful, by which it has been attempted to introduce a system of land registry104 which should facilitate the transfer of land; the enactments for doing away with copyhold tenure or for diminishing the inconvenience arising from its peculiarities, which begin with the Copyhold Act, 1841, 4 & 5 Vict. c. 35, and have ended for the present with the Copyhold Act, 1894, 57 & 58 Vict. c. 46, and the Inclosure Acts between 1801, 41 Geo. III. c. 109, and the general Inclosure Act, 1845, 8 & 9 Vict. c. 118.105 The same end is aimed at from another side by the whole series of Settled Estates Acts from 1856, 19 & 20 Vict. c. 120, to 1876, 39 & 40 Vict. c. 30, all of which, together with other enactments, increase the power of tenants for life and others to deal with land of which they are not the absolute owners. It is here worth noting that individualism in legislation, since it has for its object to free from unnecessary trammels the action of individuals who, at any given moment, are in existence, will tend, on the one hand, to liberate each generation from the control of the past, and on the other hand to restrain the attempt of each generation to fix the devolution of property in the future, and thus diminish the individual liberty of its successors.
It may appear to be a straining of terms if we bring under the head of freedom in dealing with property the most celebrated piece of legislation which can be attributed to the philosophic Radicals. The Poor Law of 1834 does not, on the face of it, aim at securing freedom of any kind; in popular imagination its chief result was the erection of workhouses, which, as prisons for the poor, were nicknamed Bastilles. Yet the object of the statute was in reality to save the property of hardworking men from destruction by putting an end to the monstrous system under which laggards who would not toil for their own support lived at the expense of their industrious neighbours, and enjoyed sometimes as much comfort as or even more comfort than fell to the lot of hardworking labourers. Whether a poor law of any kind is consistent with the principles of thorough-going individualism is open to question. In England, however, the system of poor relief had existed for centuries. Instant abolition was an impossibility: all that reformers could do—and that at the cost of deep unpopularity—the reformers of 1834 achieved; they prevented an institution which was intended to save from starvation labourers who could not obtain work, from continuing to be a tremendous tax upon industry for the maintenance of indolence. This was the aim, and to a great extent the effect, of the New Poor Law.
Freedom of discussion, popularly, though inaccurately, called freedom of opinion, and religious liberty, which means the right of every man to avow and advocate any form of religious or non-religious belief without thereby exposing himself to legal penalties or disabilities, had long before 1830 become, under the name of civil and religious liberty, articles of the Whig creed;106 but to these articles of faith Whig legislators had in practice given most imperfect application. The Benthamites aimed at carrying out their faith in freedom of opinion to its full logical results. Of this effort may be found ample illustrations in the extension of the Toleration Act to Unitarians (1813); in the Test and Corporation Act, 1828, 8 & 9 Geo. IV. c. 17; in the Roman Catholic Relief Act, 1829, 10 Geo. IV. c. 7; in the Nonconformists’ Chapels Act, 1844, 7 & 8 Vict. c. 45; in the Marriage Acts extending from the Marriage Act, 1835, 5 & 6 Will. IV. c. 54, to the Marriage Act, 1898, 61 & 62 Vict. c. 58; and above all, in the long series of Oaths Acts, which have had the twofold effect of opening Parliament to any person otherwise eligible without any reference to his religious belief, and of enabling even avowed atheists to give evidence, and therefore enforce their rights, in a Court of Justice. Parliament has not, indeed, as yet established religious equality, but modern liberalism, which has in this matter inherited the ideas of the school of Bentham, had by the middle of the last century removed nearly all effective legal restraints on free discussion, and has since that date practically established a liberty of opinion almost as wide as that demanded in 1859 by Mill in his treatise On Liberty.
The Adequate Protection of Rights. The labours of Bentham and of the lawyers who have followed in his steps, have been incessantly directed towards securing for every person the power to enforce his rights—that is, towards the amendment of everything which can be brought under the head of legal procedure, if that term be used in its very widest sense, so as to cover everything connected with the actual enforcement of a citizen’s substantive rights, and thus to include the regulation of judicial evidence, the constitution and the jurisdiction of the courts, and all the steps in an action which English lawyers call practice, the reduction of the cost of legal proceedings, and a lot of other topics as dull and technical as any part of the law. Procedure, dreary though the matter seems, was the favourite object of Bentham’s intense attention and prolonged study. Why, a student asks himself, was a legal philosopher so deeply concerned with a matter which seems to possess little speculative interest? The answer is, that in nothing did Bentham more markedly display his logical consistency and his sagacity as a reformer, than in the supreme importance which he attached to providing the means for the easy enforcement of every man’s rights. A right which an individual cannot enforce is to him no right at all; the dilatoriness of legal proceedings, and their exorbitant cost, or the want of an easily accessible Court, work greater and far more frequent injustice than the formal denial of a man’s due rights. The passion for amending procedure was only one side of Bentham’s desire to protect individual freedom, and this passion, stirred up by Bentham, has now for more than seventy years led to constant attempts at improving the machinery of the law which have on the whole been crowned with marked success.107
Let us take a few typical examples of the scores of enactments which during the nineteenth century have reformed that system of legal procedure which, when Bentham made himself its critic, was full of patent faults. The Evidence Acts, beginning in 1833 with Denman’s Act, 6 & 7 Vict. c. 85, and ending with the Act of 1898, which allows persons accused of crime to give evidence on their own behalf, have rationalised the whole of our law with regard to the competence of witnesses. The County Courts Acts from 1846108 to 1888109 have provided tribunals in every part of the country, to which persons may have recourse for the recovery of small debts which before 1846 were often in practice not recoverable because of the expense and difficulty of proceeding in the superior Courts. The Court of Chancery, which towards the middle of the nineteenth century was still a byword for dilatoriness and technicality, was, even before the passing of the Judicature Act, 1873, reformed to a great extent, though in a partial and fragmentary manner, by legislation subsequent to 1850.110 Almost hand in hand with the reform of the Court of Chancery the procedure of the Common Law Courts was simplified, and everything which could be deemed useless in the technicality of pleadings was abolished by the Common Law Procedure Acts, 1852,111 1854,112 and 1860.113 At last that fundamental reform of procedure both in the Court of Chancery and in the Courts of Common Law, which had been the constant aim of Bentham and of every man imbued with his spirit, was with more or less completeness attained by the so-called fusion of law and equity under the Judicature Act of 1873,114 which, taken together with the subsequent enactments which have amended it, has at last created an omni-competent Court in every Division of which every kind of right known to the law of England is recognised, and where every kind of remedy for the enforcement of rights may be obtained. Nor ought we to omit reference to the experiment of the new Commercial Court which in its absence of forms, in the wide discretion given to the judge, and in the rapidity of its proceedings, almost realises Bentham’s ideal of a perfect tribunal. Compare now the defectiveness of English procedure in 1800115 with the masterly picture of the actual administration of our law drawn in 1887 by one of the ablest and most enlightened of our judges. Thus writes the late Lord Bowen:
A complete body of rules—which possesses the great merit of elasticity, and which (subject to the veto of Parliament) is altered from time to time by the judges to meet defects as they appear—governs the procedure of the Supreme Court and all its branches. In every cause, whatever its character, every possible relief can be given with or without pleadings, with or without a formal trial, with or without discovery of documents and interrogatories, as the nature of the case prescribes—upon oral evidence or upon affidavits, as is most convenient. Every amendment can be made at all times and all stages in any record, pleading, or proceeding that is requisite for the purpose of deciding the real matter in controversy. It may be asserted without fear of contradiction that it is not possible in the year 1887 for an honest litigant in her Majesty’s Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation. The expenses of the law are still too heavy, and have not diminished pari passu with other abuses. But law has ceased to be a scientific game that may be won or lost by playing some particular move.116
Any critic who dispassionately weighs these sentences, notes their full meaning, and remembers that they are even more true in 1905 than in 1887, will partially understand the immensity of the achievement performed by Bentham and his school in the amendment of procedure—that is, in giving reality to the legal rights of individuals.
Nor is it irrelevant to note that the more closely the renovation of English institutions under the influence of Bentham is studied, the more remarkably does it illustrate the influence of public opinion upon law. Nothing is effected by violence; every change takes place, and every change is delayed or arrested by the influence, as it may seem the irresistible influence, of an unseen power. The efforts of obstructionists or reactionists come to nothing, the toryism of Eldon, the military rigidity of the Duke of Wellington, the intelligent conservatism of Peel, at a later period the far less intelligent conservatism of Lord Palmerston, all appear, though the appearance is in some respects delusive, not in reality to delay for more than periods which are mere moments in the life of nations, the progress of change. On the other hand, the violence of democrats or the fervour of enthusiasts achieves little in hurrying on innovation. In the eighteenth century a duke was ready to recommend universal suffrage. It was demanded by the Chartists, who between 1830 and 1848 seemed destined to carry parliamentary reform to its logical conclusion. Yet now that England is far more democratic than in the middle of the nineteenth century, the electors, who could easily obtain any change which they eagerly desired, acquiesce in arrangements far less democratic than even unqualified household suffrage; and it is arguable (though, be it remembered, many things are arguable which turn out not to be true) that the reforms or changes of the last sixty years have considerably increased the popularity of the Crown, the Peerage, and the Church. If we look then to the changes which have been effected, and what is equally important, to the changes which have not been effected, in the law of the land, we trace everywhere the action of opinion, and feel as if we were in the hands of some mysterious influence which works with the certainty of fate. But this feeling or superstition is checked by the recollection that public opinion is nothing but the opinion of the public—that is, the predominant convictions of an indefinite number of Englishmen.
The Growth of Collectivism
with the passing of the Reform Act began the reign of liberalism, and the utilitarianism of common sense acquired, in appearance at least, despotic power, but this appearance was to a certain extent delusive. At the moment of the Benthamite triumph there were to be found thinkers who, while insisting on the need for thorough-going reforms, denied the moral authority of individualism and denounced the dogma of laissez faire.
This vital difference between two opposed schools of thought had more than a merely speculative interest. It determined men’s way of looking at by far the most pressing social problem of the day. The fifteen years from 1830 to 1845, which may well be termed the era of the Reform Act, were among the most critical in the history of England. The time was out of joint. The misery and discontent of city artisans and village labourers were past dispute. No Act of Parliament could remove at a stroke the wretchedness and pauperism created by the old poor law. The true cure contained in the new poor law of 1834, with its drastic severity, its curtailment of outdoor relief, and its detested Bastilles, increased for the moment the sufferings of the poorest amongst the poor, and excited intense popular resentment. The wages earned by labourers in the country were miserably low. The horrors connected with factory life were patent. Widespread was the discontent of the whole body of wage-earners. It is recorded in a series of state trials for sedition, for conspiracy, or for treason, extending from 1832 to 1843.1 There was rick-burning2 by labourers in the country, there were acts of violence by trade unionists in the towns. The demand for the People’s Charter was the sign of a social condition which portended revolution. To us who know that several points of the People’s Charter have passed into law without causing social or political disturbance, the thought may occur that Chartism loomed too large in the eyes of contemporaries. But the men of 1832 understood the time in which they lived. The cry for the Charter told of bitter class hatreds and of widespread dissatisfaction with the whole constitution of society. Men who have known England only during the years of prosperity and of general good-will which have followed the repeal of the corn laws, can hardly realise the urgency with which the “state of England question” thrust itself upon the attention of the public between 1832 and 1840. It was a terrible question enough; it was nothing else than the inquiry, how, if at all, was it possible to alleviate the miseries and remove the discontent of the working classes?
The reply of utilitarian Liberals was in substance clear. The policy of wisdom was, they insisted, to make the nation, as the Reform Act was intended to do, master of its own destiny. Hence, it was argued, would follow the removal of every definite abuse and the repeal of every unjust law, and especially of any law which pressed unfairly and hardly upon the poor. This being done, law, it was assumed rather than stated, could do no more; for the ultimate cure of social diseases we must trust to general good-will, and above all to individual energy and self-help.
Nowhere is this doctrine better expressed than in the refutation by Sydney Smith of the argument familiar to the toryism of 1830, that the Reform Bill would bring no benefit to the hewer of wood and drawer of water.
“What good,” says Sydney Smith in 1830,
to the hewer of wood and the drawer of water? How is he benefited, if Old Sarum is abolished, and Birmingham members created? But if you ask this question of Reform, you must ask it of a great number of other great measures. How is he benefited by Catholic Emancipation, by the repeal of the Corporation and Test Act, by the Revolution of 1688, by any great political change, by a good government? In the first place, if many are benefited, and the lower orders are not injured, this alone is reason enough for the change. But the hewer of wood and the drawer of water are benefited by Reform. Reform will produce economy and investigation; there will be fewer jobs, and a less lavish expenditure; wars will not be persevered in for years after the people are tired of them; taxes will be taken off the poor and laid upon the rich; demotic habits will be more common in a country where the rich are forced to court the poor for political power; cruel and oppressive punishments (such as those for night-poaching) will be abolished. If you steal a pheasant you will be punished as you ought to be, but not sent away from your wife and children for seven years. Tobacco will be 2d. per lb. cheaper. Candles will fall in price. These last results of an improved government will be felt. We do not pretend to abolish poverty, or to prevent wretchedness; but if peace, economy, and justice are the results of Reform, a number of small benefits, or rather of benefits which appear small to us, but not to them, will accrue to millions of the people; and the connection between the existence of John Russell, and the reduced price of bread and cheese, will be as clear as it has been the object of his honest, wise, and useful life to make it.
Don’t be led away by such nonsense; all things are dearer under a bad government, and cheaper under a good one. The real question they ask you is, What difference can any change of government make to you? They want to keep the bees from buzzing and stinging, in order that they may rob the hive in peace.3
Every one of these predictions has been fulfilled almost to the letter.
Turn now for illustrations of the protest against the dominant individualism of the day to the language of three men of genius who agreed in nothing but in their common distrust of laissez faire, and in their conviction that some great exertion of the authority of the State was needed for the cure of the diseases which afflicted the commonwealth.
“Moral evils,” writes Southey (1829), “are of [man’s] own making; and undoubtedly the greater part of them may be prevented, though it is only in Paraguay (the most imperfect of Utopias) that any attempt at prevention has been carried into effect.”4
And this prevention was, in Southey’s judgment, to be effected by the moral authority of the Church and the action of the State.
“This neglect,” writes Dr. Arnold (1838), namely, to provide a proper position in the State for the manufacturing population,
is encouraged by one of the falsest maxims which ever pandered to human selfishness under the name of political wisdom—I mean the maxim that civil society ought to leave its members alone, each to look after their several interests, provided they do not employ direct fraud or force against their neighbour. That is, knowing full well that these are not equal in natural powers,—and that still less have they ever within historical memory started with equal artificial advantages; knowing, also, that power of every sort has a tendency to increase itself, we stand by and let this most unequal race take its own course, forgetting that the very name of society implies that it shall not be a mere race, but that its object is to provide for the common good of all, by restraining the power of the strong and protecting the helplessness of the weak.5
“That the arrangements,” writes Carlyle in 1839,
of good and ill success in this perplexed scramble of a world, which a blind goddess was always thought to preside over, are in fact the work of a seeing goddess or god, and require only not to be meddled with: what stretch of heroic faculty or inspiration of genius was needed to teach one that? To button your pockets and stand still is no complex recipe. Laissez faire, laissez passer! [Laissez faire, leave it be!]6 Whatever goes on, ought it not to go on. . . . Such at bottom seems to be the chief social principle, if principle it have, which the Poor Law Amendment Act has the merit of courageously asserting, in opposition to many things. A chief social principle which this present writer, for one, will by no manner of means believe in, but pronounce at all fit times to be false, heretical, and damnable, if ever aught was.7
Between 1830 and 1840 the issue between individualists and collectivists was fairly joined. Can the systematic extension of individual freedom and the removal of every kind of oppression so stimulate individual energy and self-help as to cure (in so far as they are curable by legislation) the evils which bring ruin on a commonwealth?
To this inquiry the enlightened opinion of 1832, which for some thirty or forty years, if not for more, governed the action of Parliament, gave, in spite of protests from a small body of thinkers backed more or less by the sympathy of the working classes, an unhesitating and affirmative answer. To the same inquiry English legislative opinion has from about 1870 onwards given a doubtful, if not a negative, reply.
My purpose in this lecture is to explain a revolution of social or political belief which forms a remarkable phenomenon in the annals of opinion. This explanation in reality is nothing else than an attempted analysis of the conditions or causes which have favoured the growth of collectivism, or, if the matter be looked at from the other side, have undermined the authority of Benthamite liberalism.8
A current explanation lies ready to hand. Under the Parliamentary Reform Acts 1867–1884 the constitution of England has been transformed into a democracy, and this revolution, it is argued, completely explains the increasing influence of socialism. The many must always be the poor, and the poor are by nature socialists. Where you have democracy there you will find socialism.
This reasoning, as already pointed out,9 is essentially fallacious. Democracy cannot be identified with any one kind of legislative opinion. The government of England is far less democratic than is the government of the United States, but the legislation of Congress is less socialistic than the legislation of the Imperial Parliament. Nor in England are laws tending towards socialism due to the political downfall of the wealthy classes. Under a democratic constitution they retain much substantial power—they determine in many ways the policy of the country. The rich have but feebly resisted, even if they have not furthered, collectivist legislation. The advance of democracy cannot afford the main explanation of the predominance of legislative collectivism.
The true explanation is to be found, not in the changed form of the constitution, but in conditions of which the advance of democracy is indeed one, but whereof the most important had been in operation before the Reform Act of 1867 came into force.
These conditions, which constantly co-operated, may be conveniently brought under the following heads: Tory Philanthropy and the Factory Movement10 —the Changed Attitude after 1848 of the Working Classes—the Modification of Economic Beliefs—the Characteristics of Modern Commerce—the Introduction of Household Suffrage.
[66. ]See p. 46, ante.
[67. ]This unity is concealed from casual observers by the gradual and fragmentary character of English legislation.
[68. ]Notably by the utilitarian fanatic F[r]ancis Place, whose action, of an almost revolutionary nature, was countenanced by men richer and apparently more moderate than the Westminster tailor and wire-puller.
[69. ]As to the relation between Benthamism and democracy, see pp. 113–117, ante.
[70. ]Brougham’s Speeches, ii. p. 600.
[71. ]Ibid. p. 617.
[72. ]Ibid. p. 600.
[73. ]“Another proposition may be stated, with a perfect confidence of the concurrence of all those men who have attentively considered the formation of opinions in the great body of society, or, indeed, the principles of human nature in general. It is, that the opinions of that class of the people, who are below the middle rank, are formed, and their minds are directed by that intelligent, that virtuous rank, who come the most immediately in contact with them, who are in the constant habit of intimate communication with them, to whom they fly for advice and assistance in all their numerous difficulties, upon whom they feel an immediate and daily dependence, in health and in sickness, in infancy and in old age; to whom their children look up as models for their imitation, whose opinions they hear daily repeated, and account it their honour to adopt. There can be no doubt that the middle rank, which gives to science, to art, and to legislation itself, their most distinguished ornaments, the chief source of all that has exalted and refined human nature, is that portion of the community of which, if the basis of representation were ever so far extended, the opinion would ultimately decide. Of the people beneath them, a vast majority would be sure to be guided by their advice and example.”—James Mill, “Government,” p. 32, reprinted from supplement to Encyclopaedia Britannica.
[74. ]Utilitarianism on this point coincided with, and was reinforced by Evangelicalism.
[75. ]1820, 1 Geo. IV. c. 57.
[76. ]1816, 56 Geo. III. c. 138; 1837, 7 Will. IV. & 1 Vict. c. 23.
[77. ]1834, 4 & 5 Will. IV. c. 26.
[78. ]7 & 8 Geo. IV. cc. 29, 30.
[79. ]24 & 25 Vict. cc. 96–100.
[80. ]1868, 31 & 32 Vict. c. 24.
[81. ]1840, 3 & 4 Vict. c. 85; 1864, 27 & 28 Vict. c. 37.
[82. ]9 Geo. IV. cc. 40, 41.
[83. ]As to improper treatment of cattle, etc., 3 Geo. IV. c. 71 (1822), as to bull-baiting and cock-fighting, 3 & 4 Will. IV. c. 19 (1833): 5 & 6 Will. IV. c. 59 (1835), as to cruelty to domestic animals generally 12 & 13 Vict. c. 92 (1849): as to prohibition of use of dogs for draught, 17 & 18 Vict. c. 60 (1854); as to prohibition of vivisection, see Cruelty to Animals Act, 1876, 39 & 40 Vict. c. 77, and as to protection from cruelty of wild animals in confinement, see 63 & 64 Vict. c. 63, Wild Animals in Captivity Protection Act, 1900, and on whole subject compare Wilson, Modern English Law, 234, 235, and Stephen, Comm. iv. (14th ed.), 213–215.
[84. ]Wilson, ibid.
[85. ]See Mill, On Liberty, p. 21.
[86. ]61 & 62 Vict. c. 58.
[87. ]The Combination Act, 1824, 5 Geo. IV. c. 95, and the Combination Act, 1825, 6 Geo. IV. c. 129. See Steph. Hist. iii. 221; Wright, 13.
[88. ]Wright, 13.
[89. ]Wright, 13.
[90. ]“It is difficult,” it has been said, “to see how, in the case of a conflict of interests, it is possible to separate the two objects of benefiting yourself and injuring your antagonist. Every strike is in the nature of an act of war. Gain on one side implies loss on the other; and to say that it is lawful to combine to protect your own interests, but unlawful to combine to injure your antagonist, is taking away with one hand a right given with the other.”—Stephen, Hist. iii. 218, 219.
[91. ]Sect. 2 exempts from liability to any indictment or prosecution for conspiracy, or to any other criminal information or punishment whatever, under the common or the statute law, “journeymen, workmen, or other persons who shall enter into any combination to obtain an advance, or to fix the rate of wages, or to lessen or alter the hours or duration of the time of working, or to decrease the quantity of work, or to induce another to depart from his service before the end of the time or term for which he is hired, or to quit or return his work before the same shall be finished, or, not being hired, to refuse to enter into work or employment, or to regulate the mode of carrying on any manufacture, trade, or business, or the management thereof.” Under this section a combination of X, Y, and Z to induce a workman to break a contract of work or to induce a master to dismiss all workmen who were not trade unionists, would semble, not have been a conspiracy. Sect. 3 gives an analogous exemption to masters.
[92. ]Sect. 4. “Provided always . . . that this Act shall not extend to subject any persons to punishment, who shall meet together for the sole purpose of consulting upon and determining the rate of wages or prices, which the persons present at such meeting, or any of them, shall require or demand for his or their work, or the hours or time for which he or they shall work in any manufacture, trade, or business, or who shall enter into any agreement, verbal or written, among themselves, for the purpose of fixing the rate of wages or prices which the parties entering into such agreement, or any of them, shall require or demand for his or their work, or the hours of time for which he or they will work, in any manufacture, trade, or business, and that persons so meeting for the purposes aforesaid, or entering into any such agreement as aforesaid, shall not be liable to any prosecution or penalty for so doing; any law or statute to the contrary notwithstanding.” Section 5 provides an analogous exemption for meetings of masters to settle the rate of wages, etc.
[93. ]This Act “left the common law of conspiracy in force against all combinations in restraint of trade, the combinations exempted from penalty under ss. 4 and 5 alone excepted.”—Erle, 58. This is, it is submitted, the right view of the law. Contrast, however, Stephen, Hist. iii. 223.
[94. ]Farrer v. Close (1869), L. R. 4 Q.B. 602.
[95. ]See Wealth of Nations, ch. viii. pp. 97–102 (6th ed. 1791).
[96. ]Life of F. Place, 236.
[97. ]Then Mr. Peel.
[98. ]Peel’s Private Correspondence, 379 (London, 1891).
[99. ]Life of F. Place, p. 217, and see further p. 218.
[100. ]Morley, Cobden, i. ch. xiii. p. 299.
[101. ]H. Martineau’s Thirty Years’ Peace (ed. 1877), i. 474.
[102. ]R. v. Druitt (1867), 10 Cox, 600, per Bramwell, B., cited Steph. Hist. iii. 221, 222.
[103. ]See pp. 111–113, ante.
[104. ]Williams, Real Property (19th ed.), p. 616; Pollock, Land Laws (3rd ed.), pp. 171–178.
[105. ]Compare Pollock, Land Laws, 3rd ed. pp. 180–186, and note particularly the change in policy as to the mode of dealing with commons from 1865 to 1876, which year is marked by the Commons Act, 1876, 39 & 40 Vict. c. 56.
[106. ]See Paley, Moral Philosophy, ii. Bk. vi. c. x., with which contrast, on the one hand, Blackstone, Comm., iv. p. 440, and on the other hand, the general tone of Macaulay’s Essays and Sydney Smith’s Works passim. The older Whigs justified the imposition of political disabilities upon Roman Catholics on the ground that in the case of Roman Catholics religious tenets were, for a time at least, the sign of political disloyalty.
[107. ]The ardent wish to amend legal procedure connects Bentham more closely than he perceived with the greatest English judges. Our lawyers in and out of Parliament have instinctively felt that a right which cannot be enforced is no right at all. It is unfortunate for Bentham’s reputation that the writers who in England have been the chief representatives of utilitarianism have either possessed little knowledge of law or else have lacked sympathy with Bentham’s enthusiasm for law reform. Neither James nor John Mill was either a lawyer or a jurist. Austin had a firm grasp of a few most important legal conceptions, but nothing in his writings betrays anything like systematic study of the laws of England. Sir J. F. Stephen was a considerable criminalist, but he hardly claimed to be, in the Benthamite sense of the term, a reformer of the law. Sir Leslie Stephen, who is by far the ablest of Bentham’s critics, was not a lawyer, and did not pay as much attention as the matter deserved to Bentham’s claim to be a legal philosopher.
[108. ]9 & 10 Vict. c. 95.
[109. ]51 & 52 Vict. c. 43, with which now read the County Courts Act, 1903, 3 Edw. VII. c. 42.
[110. ]Ashburner, Principles of Equity, pp. 17, 18; Holdsworth, History of English Law, i. pp. 231–235; 14 & 15 Vict. c. 4 (1851); The Court of Chancery Acts, 1852 (15 & 16 Vict. cc. 80, 87); The Chancery Procedure Act, 1852 (15 & 16 Vict. c. 86); The Chancery Amendment Act, 1858 (21 & 22 Vict. c. 27); The Chancery Regulation Act, 1862 (25 & 26 Vict. c. 42); and see for earlier legislation of a reforming character, 53 Geo. III. c. 24 (1813), 3 & 4 Will. IV. c. 94 (1833); the Court of Chancery Acts, 1841, 1842 (5 Vict. c. 5; 5 & 6 Vict. c. 103).
[111. ]15 & 16 Vict. c. 76.
[112. ]17 & 18 Vict. c. 125.
[113. ]23 & 24 Vict. c. 126.
[114. ]36 & 37 Vict. c. 66. To understand the full extent of the change introduced under the Judicature Acts a student should read the fifteen Acts which make up the Judicature Acts, 1873–1899, and the Rules and Orders made thereunder. See Stephen, Comm. iii. (14th ed.), p. 352.
[115. ]See pp. 62–68, ante.
[116. ]Bowen, The Administration of the Law, The Reign of Queen Victoria, i. pp. 309, 310.
[1. ]R. v. Pinney (1832), R. v. Fursey (1833), R. v. Vincent (1837), R. v. Collins (1839), R. v. Feargus O’Connor, R. v. Cooper (1843), to which add the notorious case of the Dorchester Labourers (1834); Webb, History of Trade Unionism, p. 129.
[2. ]As to the violent destruction of machinery in 1830, see “Letters to Swing,” by Sydney Smith, Memoir by Lady Holland, i. (4th ed.), p. 287.
[3. ]Sydney Smith’s Works (ed. 1869), pp. 670, 671.
[4. ]Southey’s Colloquies on the Progress and Prospects of Society, i. p. 110.
[5. ]Arnold, Miscellaneous Works, pp. 453, 454.
[6. ][Editor’s note: The translation was added in the Liberty Fund edition.]
[7. ]Carlyle’s Works, x. p. 340, “Chartism.” See also ibid. chap. vi. p. 368.
[8. ]Benthamite reformers have never had a perfectly fair chance of bringing their policy to a successful issue. Some of their proposals have never been carried into effect; outdoor relief, for example, has never been abolished. The realisation of some of them has been so delayed as to lose more than half its beneficial effect. If the first reformed Parliament had been able to establish free trade simultaneously with the enactment of the new poor law, and given to Dissenters in 1832 as complete political equality as they possess at the present day; if it had in reality opened to Roman Catholics in 1832 all careers as completely as they are open to them in 1905; if O’Connell had been first made Irish Attorney-General and then placed on the Bench; if the tithe war which harassed Ireland till 1838 had been terminated in 1834—is it not at least possible that a rapid increase in material prosperity and a sense of relief from oppression might have produced a general sentiment of social unity, which would have shown that the principles of individualism fitly met the wants of the time? Our habit of delaying reforms has its occasional advantages; these advantages are, however, much exaggerated. Sir Thomas Snagge, in his admirable Evolution of the County Court, thus writes of the County Court Act, 1846: “Its provisions were the outcome of nearly twenty years of resolute parliamentary effort, met by opposition no less persistent. Such struggles are wont to end, as this did, in a compromise. It was the old story of all sound English reform: hasty change was successfully withstood, and gradual evolution was happily accomplished.” Can our esteemed author seriously maintain that opposition generated by partisanship brought a single compensation for the practical denial of justice to the poor during a period of twenty years? However this may be, the disadvantages of delay are often tremendous. It keeps alive irritation which constantly robs improvement itself of almost the whole of its legitimate benefit.
[9. ]See Lect. III., ante.
[10. ]The expression is obviously inaccurate, but I use it as a convenient and accepted name for the movement in favour of the regulation by law of labour in factories.