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

(B)

Trend of Collectivist Legislation

“It cannot be seriously denied,” wrote Mr. Morley in 1881,

Thus wrote Mr. Morley in 1881 in a passage from his Life of Cobden which has become classical; his words directly refer only to the factory laws, but they admit of a far wider application. Every year which has passed since their publication has confirmed their truth.

The labour law of 1878 (41 & 42 Vict. c. 16) has been superseded and widely extended by the code whereof the details are to be found in the Factory and Workshop Act, 1901, 1 Edw. VII. c. 22. Not only factories and workshops, in the ordinary sense of those terms, but also any place such as a hotel, which is the scene of public labour, and even places of domestic employment which may fairly be called homes, have been brought within the sphere of the labour code. The time is rapidly approaching when the State will, as regards the regulation of labour, aim at as much omnipotence and omniscience as is obtainable by any institution created by human beings. Wherever any man, woman, or child renders services for payment, there in the track of the worker will appear the inspector. State control, invoked originally to arrest the ill-usage of children in large factories, has begun to take in hand the proper management of shops. A shop-girl has already acquired a legal right to a seat.63 The hours of shop closing may now in most cases be fixed by a local authority64 —that is, be regulated, not by the wishes of the shopkeeper, of his customers, or of the shopmen, but by rules imposed under the authority of the State. The Public Health Acts, starting in 1848 from the modest attempt to get rid of palpable nuisances calculated to generate disease, have expanded into the sanitary code of 1875,65 which, with its complex provisions, constitutes a whole body of law for the preservation of the public health. The Housing of the Working Classes Acts, which in effect began with the Labouring Classes Lodging House Act, 1851,66 and attempted little more than to make possible and encourage the establishment by boroughs, and certain other places, of lodging-houses for the labouring classes, have developed into the Housing of the Working Classes Acts,67 1890–1900.68 These enactments enjoin local authorities to clear unhealthy areas, and to close unhealthy dwelling-houses, or demolish them if unfit for human habitation, and empower local authorities to provide lodging-houses for the working-classes, and with a view to making such provision, to acquire land where necessary under the system of compulsory purchase.69 The State, therefore, has indirectly gone a good way towards the provision of dwelling-houses for workmen; the housing of artisans has become in great measure a matter of public concern. If the Housing of the Working Classes Acts have in the main benefited artisans, something has of recent years been done towards meeting any wish for allotments70 which may be cherished by country labourers, who cannot themselves afford to purchase or to obtain a lease of lands at the market rate, or who, as is possible, live in villages where no landlord is willing to sell or let allotments. The local authorities are now, under the Allotments Acts, empowered to obtain land, and, if necessary, under the system of compulsory purchase, which they are to relet to labourers.

The growth of modern collectivism has naturally coincided with the disposition to revive or to extend the socialistic element71 which has always been latent in some of the older institutions of England, and notably in the English Poor Law. The strength of this tendency72 will be best seen by a comparison or contrast between the ideas which produced and characterised the Poor Law reform of 1834, and the ideas which in 1905 have already to a certain extent changed the law, and to a still greater extent modified the administration of poor relief. The reformers of 1834 considered the existence of the Poor Law a great, though for the moment a necessary evil. They cut down its operation within limits as narrow as public opinion would then tolerate. They expected to put an end at some not very distant date to out-door relief. Nor can one doubt that many of them hoped that the Poor Law itself might at last be done away with. As late as 1869 the central authorities struggled to increase the strictness with which out-door relief was administered, and in 1871 Professor Fawcett, a fair representative of the economists of that day, still apparently advocated its abolition.73 The reformers, moreover, specially relied on the use of two means for at any rate restricting the administration of poor relief. The one was the confining it in the very sternest manner to the relief of destitution; the aim of relief was in their eyes to avert starvation, not to bestow comfort; the second was the association of pauperism—a very different thing from mere poverty—with disgrace; hence the recipient of poor relief lost, because he was a pauper, his rights as an elector.74 The tide of opinion has turned; the very desire to restrict out-door relief has, as regards popular sentiment, all but vanished. The idea of putting an end to poor relief altogether lies far out of the range of practical politics. Much has already been done to diminish the discomfort and the discredit which may attach itself to pauperism. The Out-door Relief (Friendly Societies) Act, 1894,75 authorised boards of guardians, when granting out-door relief, not to take into consideration any sum up to five shillings a week received by the applicant as member of a friendly society. The Out-door Relief (Friendly Societies) Act, 1904,76 has made a course of action which was optional imperative. Nor is the anticipation unwarranted that other classes will, at no distant date, obtain the consideration or indulgence which is extended to members of friendly societies. Discredit, indeed, still attaches to the receipt of poor relief, yet Parliament has already done much to diminish the force of a sentiment which men of admitted wisdom have been accustomed to regard as a valuable, if not our chief, safeguard against the spread of pauperism; the receipt of out-door relief in the shape of medicine no longer disqualifies the recipient from exercising the functions of an elector.77

The general trend of legislation is often as clearly traceable in Bills laid before Parliament, which have not passed into law, as in statutes. From this point of view the Bills of 1904 are full of instruction. They discover the wishes of the electors. They reveal, for instance, the widespread desire for laws which make for the equalisation of advantages.78 The methods proposed for the attainment of this end are various. One is the provision, at the expense of the tax-payers, of old age pensions, either for every applicant who has attained the age of sixty-five, or for any person of sixty-five who belongs to the indefinable class of the deserving poor. The creation of a system of old age pensions has been recommended, though not fully thought out, both by zealous philanthropists who pity the sufferings, and by politicians of undoubted humanity who possibly desire the votes, of the wage-earners. Enthusiasts, again, who have been impressed with the indisputable fact that poverty may exist in connection with merit, have propounded a scheme under which the Guardians of the Poor are to be authorised, and, no doubt, if the plan should receive the approbation of Parliament, will soon be enjoined, to provide the “necessitous deserving aged poor” with cottage homes where the inhabitants “will be treated with regard to food and other comforts with suitable consideration,” or, in other words, will enjoy at least as much comfort as and perhaps more comfort than usually falls to the lot of the energetic working-man who, towards the close of his life, has out of his earnings and savings provided himself with a modest independence. All these plans, whatever their advantages, have some features in common. They all try to divest the receipt of relief from the rates of the discredit and the disabilities which have hitherto attached to pauperism;79 they negative the idea that it is, as a rule, the duty of every citizen to provide for his own needs, not only in youth, but in old age; and that if age, as depriving a man of capacity to work, may be termed a disease, yet it is a malady so likely to occur as to create a special obligation to ensure against its occurrence. Would not the stern but successful reformers of 1834 have held that old age pensions and comfortable cottage homes, provided at the cost of the tax-payers, were little better than a decent but insidious form of out-door relief for the aged?80

Among Bills which aim at the equalisation of advantages may be numbered a proposal significant, rather than important, for the removal of every limit on the amount which may be raised from the rates for the support of free libraries, and also many Bills, as important as they are significant, which are intended to facilitate in various ways the acquisition of land, or of an interest in land, generally through the direct or indirect intervention of the State, by persons unable to acquire either land or a lease of land through freely made contracts with willing vendors. The Bills of 1904 also bring into light another characteristic of collectivism, namely, the favour with which persons who have in any degree adopted socialistic ideals look upon combined as contrasted with individual action.81 Trade unionists, it is clear, urgently demand a revolution in the combination law. They claim, as regards trade disputes, the practical abolition of the law of conspiracy, the legalisation of so-called peaceful, which may nevertheless be oppressive, picketing, and the anomalous exemption of a trade union and its members from civil liability for damage sustained by any one through the action of any member of such trade union.82 All these changes suggest the conclusion that English artisans are keenly alive to the necessity for using the severest “moral pressure,” or indeed pressure which can hardly by any possible expansion of language be fairly termed “moral,” as a restraint upon the selfishness of any workman or employer who acts in opposition to the apparent interest of a body of wage-earners. But these proposed changes also suggest the conclusion that English artisans are blind to the dangers involved in such an extension of the right of association83 as may seriously diminish the area of individual freedom. This disposition to rate low the value of personal liberty, and to rate high the interest of a class, is to a certain extent illustrated by the Aliens Immigration Bill, 1904. This measure is on the face of it intended to restrain the settlement in England of foreign paupers, and other undesirable immigrants, whose presence may add to the mass of English poverty. It has been brought before Parliament by the Government, and is supposed, possibly with truth, to be supported by a large body of working-men. No one can deny that arguments worth attention may be produced in favour of the Aliens Bill; but it is impossible for any candid observer to conceal from himself that the Bill harmonises with the wish to restrain any form of competition which may come into conflict with the immediate interest of a body of English wage-earners. However this may be, the Bill assuredly betrays a marked reaction against England’s traditional policy of favouring or inviting the immigration of foreigners, and in some of its provisions shows an indifference to that respect for the personal freedom, even of an alien, which may be called the natural individualism of the common law.84

For our present purpose the Bills brought before the Imperial Parliament are hardly more instructive than the recent legislation of some self-governing English Colonies.85 Compulsory arbitration in all disputes between employers and employed—that is, the authoritative regulation by the State of the relation between these two classes; a vast extension of the factory laws, involving, inter alia, the regulation by law of the hours of labour for every kind of wage-earner, including domestic servants, the employment by the State of the unemployed, the fixing by law of fair wages; the rigid enforcement of a liquor law, which may render sobriety compulsory; the exclusion from the country of all immigrants, even though they be British subjects, whose presence working-men do not desire; and other measures of the same kind—would appear to approve themselves to the citizens of Australia and New Zealand. The similarity between the legislation which has actually taken place in these Colonies and laws passed or desired in England is worth notice, for it throws considerable light on the natural tendencies of that latent socialism or collectivism, not yet embodied in any definite socialistic formulas, which has for the last thirty years and more been telling with ever-increasing force on the development of the law of England.

Our survey of the course of law and opinion from 1830 onwards suggests two reflections:

The difference between the legislation characteristic of the era of individualism and the legislation characteristic of the era of collectivism is, we perceive, essential and fundamental. The reason is that this dissimilarity (which every student must recognise, even when he cannot analyse it) rests upon and gives expression to different, if not absolutely inconsistent, ways of regarding the relation between man and the State. Benthamite Liberals have looked upon men mainly, and too exclusively, as separate persons, each of whom must by his own efforts work out his own happiness and well-being; and have held that the prosperity of a community—as, for example, of the English nation—means nothing more than the prosperity or welfare of the whole, or of the majority of its members. They have also assumed, and surely not without reason, that if a man’s real interest be well understood, the true welfare of each citizen means the true welfare of the State. Hence Liberals have promoted, during the time when their influence was dominant, legislation which should increase each citizen’s liberty, energy, and independence; which should teach him his true interest, and which should intensify his sense of his own individual responsibility for the results, whether as regards himself or his neighbours, of his own personal conduct. Collectivists, on the other hand, have looked upon men mainly, and too exclusively, not so much as isolated individuals, but as beings who by their very nature are citizens and parts of the great organism—the State—whereof they are members. Reformers, whose attention has thus been engrossed by the social side of human nature, have believed, or rather felt, that the happiness of each citizen depends upon the welfare of the nation, and have held that to ensure the welfare of the nation is the only way of promoting the happiness of each individual citizen. Hence collectivists have fostered legislation which should increase the force of each man’s social and sympathetic feelings, and should intensify his sense of the responsibility of society or the State for the welfare or happiness of each individual citizen.

The force of collectivism is, we all instinctively feel, not spent; it is not, to all appearance, even on the decline. That legislation should, for the present and for an indefinite time to come, deviate farther and farther from the lines laid down by Bentham, and followed by the Liberals of 1830, need, however, cause no surprise. Public opinion is, we have seen, guided far less by the force of argument than by the stress of circumstances,86 and the circumstances which have favoured the growth of collectivism still continue in existence, and exert their power over the beliefs and the feelings of the public. Laws again are, we have observed, among the most potent of the many causes which create legislative opinion; the legislation of collectivism has continued now for some twenty-five or thirty years, and has itself contributed to produce the moral and intellectual atmosphere in which socialistic ideas flourish and abound. So true is this that modern individualists are themselves generally on some points socialists. The inner logic of events leads, then, to the extension and the development of legislation which bears the impress of collectivism.87

LECTURE IX

The Debt of Collectivism to Benthamism

the patent opposition between the individualistic liberalism of 1830 and the democratic socialism of 1905 conceals the heavy debt owed by English collectivists to the utilitarian reformers. From Benthamism the socialists of to-day have inherited a legislative dogma, a legislative instrument, and a legislative tendency.

The dogma is the celebrated principle of utility.

In 17761 Bentham published his Fragment on Government. The shrewdness or the selfishness of Wedderburn2 at once scented the revolutionary tendency of utilitarian reform.

“This principle of utility,” he said, “is a dangerous principle.” On this dictum Bentham has thus commented:

In 1905 we are less surprised at Bentham’s retort, which betrays a youthful philosopher’s enthusiastic faith in a favourite doctrine, than at Wedderburn’s alarm, which seems to savour of needless panic. What is there, we ask, in the greatest happiness principle—a truism now accepted by conservatives no less than by democrats—that could disturb the equanimity of a shrewd man of the world well started on the path to high office? Yet Wedderburn, from his own point of view, formed a just estimate of the principle of utility. It was a principle big with revolution; it involved the abolition of every office or institution which could not be defended on the ground of calculable benefit to the public; it struck at the root of all the abuses, such as highly-paid sinecures, which in 1776 abounded in every branch of the civil and of the ecclesiastical establishment; it aimed a deadly blow, not only at the optimism of Blackstone, but also at the historical conservatism of Burke. It went, indeed, much farther than this, for, as in any State the poor and the needy always constitute the majority of the nation, the favourite dogma of Benthamism pointed to the conclusion—utterly foreign to the English statesmanship of the eighteenth century—that the whole aim of legislation should be to promote the happiness, not of the nobility or the gentry, or even of shopkeepers, but of artisans and other wage-earners.

The legislative instrument was the active use of parliamentary sovereignty.4

The omnipotence of Parliament, which Bentham learned from Blackstone, might well, considered as an abstract doctrine, command the acquiescent admiration of the commentator. But the omnipotence of Parliament—turned into a reality, and directed by bold reformers towards the removal of all actual or apparent abuses—might well alarm, not only adventurers who found in public life a lucrative as well as an honourable profession, but also statesmen, such as Pitt or Wilberforce, uninfluenced by any sinister interest. Parliamentary sovereignty, in short, taught as a theory by Blackstone and treated as a reality by Bentham, was an instrument well adapted for the establishment of democratic despotism.

The legislative tendency was the constant extension and improvement of the mechanism of government.

The guides of English legislation during the era of individualism, by whatever party name they were known, accepted the fundamental ideas of Benthamism. The ultimate end, therefore, of these men was to promote legislation in accordance with the principle of utility;5 but their immediate and practical object was the extension of individual liberty as the proper means for ensuring the greatest happiness of the greatest number. Their policy, however, was at every turn thwarted by the opposition or inertness of classes biassed by some sinister interest. Hence sincere believers in laissez faire found that for the attainment of their ends the improvement and the strengthening of governmental machinery was an absolute necessity. In this work they were seconded by practical men who, though utterly indifferent to any political theory, saw the need of administrative changes suited to meet the multifarious and complex requirements of a modern and industrial community. The formation of an effective police force for London (1829)—the rigorous and scientific administration of the Poor Law (1834) under the control of the central government—the creation of authorities for the enforcement of laws to promote the public health and the increasing application of a new system of centralisation,6 the invention of Bentham himself7 —were favoured by Benthamites and promoted utilitarian reforms; but they were measures which in fact limited the area of individual freedom.

In 1830 the despotic8 or authoritative element latent in utilitarianism was not noted by the statesmen of any party. The reformers of the day placed for the most part implicit faith in the dogma of laissez faire, and failed to perceive that there is in truth no necessary logical connection between it and that “greatest happiness principle,” which may, with equal sincerity, be adopted either by believers in individual freedom, or by the advocates of paternal government. To the Liberals of 1830 the energy and freedom of individuals seemed so clearly the source from which must spring the cure of the diseases which afflicted English society, that they could hardly imagine the possibility of a conflict between the true interest of the community and the universal as well as equal liberty of individual citizens.9 The Tories of the day, on the other hand, were so impressed with the hostility of the utilitarian school to institutions (e.g. the Crown or the Church), the strength whereof depended on tradition, that they were blind to the authoritative aspect of Benthamism. And, oddly enough, the tendency of Benthamite teaching to extend the sphere of State intervention was increased by another characteristic which conciliated Whigs and moderate Liberals—that is, by the unlimited scorn entertained by every Benthamite for the social contract and for natural rights. This contempt was indeed a guarantee against sympathy with Jacobinical principles, but it deprived individual liberty of one of its safeguards. For the doctrine of innate rights, logically unsound though it be, places in theory a limit upon the despotism of the majority. This doctrine is no doubt a very feeble barrier against the inroads of popular tyranny; the Declaration of the Rights of Man did not save from death one among the thousands of innocent citizens dragged before the Revolutionary Tribunal; the American Declaration of Independence, with its proclamation of the inalienable rights of man, did not deliver a single negro from slavery. But these celebrated documents were after all a formal acknowledgment that sovereign power cannot convert might into right. They have assuredly affected public opinion. In France the Declaration of the Rights of Man has kept alive the conviction that a National Legislature ought not to possess unlimited authority. Some articles in the Constitution of the United States, inspired by the sentiment of the Declaration of Independence, have supported individual freedom; one of them has gone far to make the faith that the obligation of contracts is sacred, a part of the public morality of the American people, and does at this moment place a real obstacle in the way of socialistic legislation. The Liberals then of 1830 were themselves zealots for individual freedom, but they entertained beliefs which, though the men who held them knew it not, might well, under altered social conditions, foster the despotic authority of a democratic State. The effect actually produced by a system of thought does not depend on the intention of its originators; ideas which have once obtained general acceptance work out their own logical result under the control mainly of events. Somewhere between 1868 and 1900 three changes took place which brought into prominence the authoritative side of Benthamite liberalism. Faith in laissez faire suffered an eclipse; hence the principle of utility became an argument in favour, not of individual freedom, but of the absolutism of the State. Parliament under the progress of democracy became the representative, not of the middle classes, but of the whole body of householders; parliamentary sovereignty, therefore, came to mean, in the last resort, the unrestricted power of the wage-earners. English administrative mechanism was reformed and strengthened. The machinery was thus provided for the practical extension of the activity of the State; but, in accordance with the profound Spanish proverb, “the more there is of the more the less there is of the less,” the greater the intervention of the Government the less becomes the freedom of each individual citizen. Benthamites, it was then seen, had forged the arms most needed by socialists. Thus English collectivists have inherited from their utilitarian predecessors a legislative doctrine, a legislative instrument, and a legislative tendency pre-eminently suited for the carrying out of socialistic experiments.

LECTURE X

Counter-Currents and cross-currents of Legislative Opinion

we have hitherto traced the connection between the development of English law and different dominant currents of opinion.1 To complete our survey of the relation between law and opinion, we must now take into account the way in which the dominant legislative faith, and therefore the legislation, of a particular time may be counteracted or modified either by the existence of strong counter-currents or cross-currents of opinion,2 or by the difference between parliamentary and judicial3 legislation.

Concerning counter-currents little need here be said. The topic has been amply illustrated in the foregoing pages. The story of Benthamite liberalism is specially instructive; the increasing force of liberalism was long held in check by the survival of old toryism; the authority of liberalism, when it had become the legislative faith of the day, was diminished by the gradually rising current of collectivism.

To the effect produced by cross-currents of opinion which, as already noted,4 deflect the action of the reigning legislative faith from its natural course, little attention has been directed in these lectures, yet the topic deserves careful consideration. The influence of such cross-currents, operating as it does in an indirect and subtle manner, often escapes notice, and is always somewhat hard to appreciate. The easiest method whereby to render the whole matter intelligible is to trace out the way in which such a cross-current has told upon the growth of some particular part of the law. For this purpose no branch of the law of England better repays examination than the ecclesiastical legislation of the years which extend from the era of the Reform Act (1830–32) to the close of the nineteenth century; for this legislation is affected at every turn on the one hand by the liberalism of the time, which aims at the establishment of religious equality, i.e. at the abolition of all political or civil privileges or disabilities dependent upon religious belief, and on the other hand by the cross-current of clerical, or rather ecclesiastical, opinion, which desires to maintain the rights or privileges of the Established Church, and demands deference for the convictions or the sentiments of the clergy and of churchmen. To see that this is so, let us, in regard to matters which can be termed ecclesiastical, in a wide sense of that word, examine first the course—that is, both the current and the cross-current, of legislative opinion from 1830 to 1900, and next the legislation to which this course of opinion has in fact given rise.

[62. ]Morley, Life of Cobden, i. pp. 302, 303.

[63. ]Seats for Shop Assistants Act, 1899 (62 & 63 Vict. c. 21), and compare the Shop Hours Acts, 1892–1895, and the Employment of Children Act, 1903 (3 Edw. VII. c. 45).

[64. ]See the Shop Hours Act, 1904 (4 Edw. VII. c. 31).

[65. ]The Public Health Act, 1875 (38 & 39 Vict. c. 55). See for a list of a large number of separate Acts more or less referring to public health, Steph., Comm. iii. (14th ed.) p. 77, and note that the Acts there referred to, which extend from the Knackers Acts, 1786 and 1844 (26 Geo. III. c. 71; 7 & 8 Vict. c. 87), to the Factory and Workshop Act, 1901, are all administered by District Councils. It should never be forgotten that powers given to local authorities are, no less than powers possessed by the central government, in reality powers exercised by the State.

[66. ]14 & 15 Vict. c. 34.

[67. ]53 & 54 Vict. c. 70.

[68. ]63 & 64 Vict. c. 59.

[69. ]See Housing of Working Classes Act, 1890, especially s. 57.

[70. ]Allotments Acts, 1887–1890 (50 & 51 Vict. c. 48, and 53 & 54 Vict. c. 65).

[71. ]See Report of Charity Organization Society on Relief of Distress due to Want of Employment, Nov. 1904.

[72. ]Which has been fostered by the provisions of the Local Government Act, 1894 (56 & 57 Vict. c. 73), s. 20, as to the election and qualification of poor-law guardians.

[73. ]See Fawcett, Pauperism, pp. 26–35. In 1872 he hoped for the gradual abolition of the poor law itself. Fawcett, Essays and Lectures, pp. 83, 84.

[74. ]See Steph., Comm. ii. (14th ed.) 295; and Representation of People Act, 1832, s. 36; Parliamentary and Municipal Registration Act, 1878, ss. 7, 12.

[75. ]57 & 58 Vict. c. 25.

[76. ]4 Edw. VII. c. 32. “In granting out-door relief to a member of any friendly society, the board of guardians shall not take into consideration any sum received from such friendly society as sick pay, except in so far as such sum shall exceed five shillings a week” (s. 1, sub. s. 2).

The effect of this enactment seems to be that, assuming ten shillings a week to be the sum adequate to save a man who has no property whatever from actual destitution, an applicant for relief who, as member of a friendly society, receives a pension of five shillings a week, will be entitled to receive by way of out-door relief ten shillings more, and thus receive five shillings beyond his strict needs. Nor is it easy to see how a board of guardians can now practically exercise the power, which the board still apparently possesses, of refusing to give out-door relief at all to a person entitled to sick pay from a friendly society. If so the Out-door Relief (Friendly Societies) Act, 1904, distinctly strikes at attempts to cut down out-door relief.

[77. ]The Medical Relief Disqualification Removal Act, 1885. See Steph., Comm. ii. 296. Leading statesmen, whether they call themselves Conservatives or Liberals, are ready or eager to go still farther along the dangerous path on which Parliament has hesitatingly entered. The President of the Local Government Board is ready, by straining to the very utmost powers conferred upon him for another purpose under the Local Authorities (Expenses) Act, 1887 (50 & 51 Vict. c. 72), s. 3, to sanction expenditure by Borough Councils which is admittedly ultra vires, and thus create a sort of Borough Council common poor-fund, which may in effect give to the unemployed relief untrammelled by the restrictions imposed by the poor law (see Report of Charity Organization Society, 1904, p. 6); and Sir H. Campbell-Bannerman, as leader of the Opposition, has announced that he is “in favour of exemption from disenfranchisement of the recipients of temporary poor law relief” (Morning Post, 1st December 1904, p. 9).

[78. ]See p. 195, ante.

[79. ]“No person admitted to a [cottage] home shall be considered a pauper, or be subject to any such disabilities as persons in receipt of parochial relief” (Cottage Homes Bill, 1904, sec. 7).

“A person whose name is on the pensioners’ list shall not be deprived of any right to be registered as a parliamentary or county voter by reason only of the fact that he or she has been in receipt of poor law relief” (Old Age Pensions Bill, sec. 8).

[80. ]Might they not have smiled grimly at the notion of a parliamentary enactment that a man supported by parish relief and provided at the expense of the parish with a comfortable cottage should not be “considered a pauper” (Cottage Homes Bill, sec. 7), and have suggested that citizens should be trained to dread the reality rather than to shun the name of pauperism? What would they have thought of the sentiment or the sentimentality which has induced the Local Government Board to sanction the suggestion that in registers of births a workhouse should be referred to by some name (e.g. Little Peddlington Hall), which might conceal the fact that a child there born was born in a workhouse and not in a private residence?

[81. ]See p. 188, ante.

[82. ]“An action shall not be brought against a trade union . . . for the recovery of damage sustained by any person or persons by reason of the action of a member or members of such trade union” (Trade Dispute Bill, 1904, sec. 3).

“An action shall not be brought against a trade union, or against any person or persons representing the members of a trade union, in his or their respective capacity” (Trade Dispute Bill, No. 2, sec. 3).

The latter proposal seems intended to exempt trade unions from all civil liabilities whatever.

If in the Trade Dispute Bills the term “trade union” is to bear the meaning given to it in the Trade Union, etc., Act, 1876 (39 & 40 Vict. c. 22), sec. 16, a combination of employers would apparently be, if the Bill should pass into law, as exempt from all civil liability as a combination of workmen. (Compare, however, the Trade Disputes Act, 1906, 6 Edw. VII. c. 47.) [Editor’s note: The previous sentence was added in the second edition.]

[83. ]See pp. 109–113, ante.

[84. ]The Bills which aim at increased restrictions on the sale of liquor hardly need separate notice, for they represent only the conviction, which for years has been known to exist, that the traffic in drink involves so many evils that it ought to be kept within narrow limits, even at the cost of what teachers, such as John Mill, considered a grave inroad on individual liberty. The only feature worth special remark is the proposal, based on precedents drawn from the laws of Canada and the United States, to place an anomalous and most extensive liability on any seller of drink for injuries done by the purchaser to a third person during a state of intoxication wholly or partially arising from the drink he has bought (see Liquor Seller’s Liability Bill, 1904, s. 2). Under this Bill, if X, a licensed person, sells drink to Y for consumption on such person’s premises, which wholly or in part causes Y’s intoxication, X would be liable to A for any injury done to A by Y whilst thus intoxicated.

[85. ]See W. P. Reeves, State Experiments in Australia and New Zealand.

[86. ]See pp. 18–21, ante.

[87. ]On a movement which has not yet reached its close, it is impossible to pronounce anything like a final judgment. It may be allowable to conjecture that, if the progress of socialistic legislation be arrested, the check will be due, not so much to the influence of any thinker as to some patent fact which shall command public attention; such, for instance, as that increase in the weight of taxation which is apparently the usual, if not the invariable, concomitant of a socialistic policy.

[1. ]In the same year was published Adam Smith’s Wealth of Nations.

[2. ]Afterwards Lord Chancellor, under the title of Baron Loughborough, and created in 1801 Earl of Rosslyn.

[3. ]Bentham, Principles of Morals and Legislation, ch. i. p. 5 (n).

[4. ]See p. 118, ante.

[5. ]See p. 98, ante.

[6. ]The English Government, even during the supremacy of reactionary toryism, did not attempt to build up a stronger administrative system. “The revolutionary movements of 1795 and of 1815–1820 were combated, not by departmental action, but by Parliamentary legislation. The suspension of the Habeas Corpus Act, the passing of the Libel Act, and of the ‘Six Acts’ of 1819, were severely coercive measures; but they contain no evidence of any attempt to give a continental character to administration. In so far as individual liberty was destroyed, it was destroyed by, and in pursuance of, Acts of Parliament.”—Redlich and Hirst, Local Government in England, ii. p. 240.

On the other hand, there has been built up since 1832 a whole scheme of administrative machinery. “The net result of the legislative activity which has characterised, though with different degrees of intensity, the period since 1832, has been the building up piecemeal of an administrative machine of great complexity, which stands in as constant need of repair, renewal, reconstruction, and adaptation to new requirements as the plant of a modern factory. The legislation required for this purpose is enough, and more than enough, to absorb the whole legislative time of the House of Commons; and the problem of finding the requisite time for this class of legislation increases in difficulty every year, and taxes to the utmost, if it does not baffle, the ingenuity of those who are responsible for the arrangement of Parliamentary business.”—Ilbert, Legislative Methods, pp. 212, 213. See generally Redlich and Hirst, i. pp. 1–216.

[7. ]“He [Bentham] attempts to solve anew the problem of the relations between local and central government. In his system the Legislator is omnipotent. His local ‘field of service’ is the State, his logical ‘field of service’ is the field of human action. . . . But the central Parliament and its organ, the Ministry, always preserve a supervisory control over local administration. Here, then, is formulated the principle, novel to the historic constitution of England, that there is no province or function of public administration in which a central government in its administrative as well as its legislative capacity is not entitled to interfere. The new principle of ‘inspectability’ is expressed on the one hand by the supervisory control of the Ministry, on the other by the subordination of the Local Headman. The Minister at the top controls the Headman at the bottom of the official ladder. The light at the centre radiates to the very circumference of the State. In the next chapter it will be shown how potent a force this new idea of central administrative control proved in the reformation of English local government.”—Redlich and Hirst, i. pp. 95, 96; compare pp. 89, 106–108.

[8. ]The true ground of Herbert Spencer’s attack on utilitarianism is that the utilitarians, in the pursuit of the greatest happiness for the greatest number, often sacrificed the freedom of individuals to the real or supposed benefit of the State, i.e. of the majority of the citizens. See The Man v. The State, and Social Statics.

[9. ]Benthamites, indeed, differed among themselves more deeply than they probably perceived, as to the relative importance of the principle of utility and the principle of non-interference with each man’s freedom. Nominally, indeed, every utilitarian regarded utility as the standard by which to test the character or expediency of any course of action (see Mill, On Liberty, p. 24). But John Mill was so convinced of the value to be attached to individual spontaneity that he, in fact, treated the promotion of freedom as the test of utility; other utilitarians, e.g. Chadwick, were practically prepared to curtail individual freedom for the sake of attaining any object of immediate and obvious usefulness, e.g. good sanitary administration.

[1. ]See pp. 45–214, ante.

[2. ]See pp. 27–30, ante.

[3. ]See Lecture XI., post. Logically the results of this difference are merely an illustration of the effect produced by a particular cross-current of opinion, namely, the legislative opinion of the judges, but the distinctions between the legislative opinion of Parliament and the legislative opinion of the Courts, and the way in which these two kinds of opinion act and react upon one another, is so noteworthy as to deserve separate consideration.

[4. ]See pp. 29, 30, ante.