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II.: As to the dependence of legislative opinion on the general tendencies of English thought. - Albert Venn Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (LF ed.) [1917]

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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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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


II.

As to the dependence of legislative opinion on the general tendencies of English thought.

In considering the manner in which legislative opinion has, especially between 1830 and 1900, been affected by the general movement of English or rather of European thought, a student should divert his attention from many eddies or cross-currents of opinion which, interesting though they be, are of minor consequence, and fix his mind resolutely upon those leading features of modern thought which, just because they are easily recognised, seem to be obvious and commonplace, but are in reality the governing characteristics of a particular age.47 Among these traits he will certainly note the increasing freedom of discussion and the disintegration of beliefs, that increasing importance given to the emotional side of human nature which has been called the apotheosis of instinct, and the growth of the historical method. Each of these three tendencies has had a share in shaking the authority of Benthamism or individualism.

Freedom of discussion and the disintegration of beliefs are so closely inter-connected that they may well be considered as two sides or aspects of one phenomenon. Of the immense increase, in England at least, of freedom of discussion (miscalled freedom of opinion) during the nineteenth century it is difficult to form an adequate conception. In 1800 the free expression of opinion was strictly limited by positive law, by social custom, and by prevalent habits of thought. We indeed habitually think of England as the home of free thought, no less than of free speech. But in this matter we are the victims of a natural delusion, due to the circumstance that in 1800 and for many years later there was more of liberty in England than elsewhere, whence one is apt to conclude that Englishmen enjoyed an absolutely large amount of intellectual and moral freedom. True indeed it is that Englishmen possessed more freedom than existed on the Continent, but the extent of this freedom was merely comparative. Could any Englishman of to-day be carried back to the reign of George III. he would feel himself choked by a moral and intellectual atmosphere which stifled the expression of every kind of heterodoxy—that is, of all thought opposed to the prevalent beliefs of the time. Conflicts between judge and jury over the law of libel, and one State trial after another raising the question, what were the lawful limits to freedom of speech and writing, show that even in the political world freedom of opinion, as we now understand it, was far from well established. In other spheres it was in practice limited by custom even where it was not curtailed by law. Occasional protests of innovators or free-thinkers bear witness to the tightness of the restraints placed upon free discussion. But we are not to suppose that this was generally felt as a grievance. Bondage imposed in the main by social opinion, just because it coincided with public sentiment, met with acquiescence, if not (as was generally the case) with active approval. Bold was the reformer who between 1800 and 1820 avowed his sympathy with so-called Jacobinical principles, even though his Jacobinism went no farther than a desire for the representation of Birmingham and the disfranchisement of Old Sarum. Bolder far was the theologian who applied historical criticism of the most moderate character to the Biblical records.48 Reckless rather than bold was the avowed opponent of fundamental beliefs whether social or religious. Nor was his bravery likely to elicit sympathy, for the majority of English men and English women enjoyed in the early part of the nineteenth century, as nearly always, just the amount of freedom in matters of thought or opinion which met their desires.

The widespread confusion between freedom of opinion and freedom of discussion, logically erroneous though it be, is not without excuse. It arises from a fact well worth notice. Where men cannot express their thoughts freely and openly, and especially where this want of liberty is sanctioned by public opinion, freedom of thought itself ceases to exist. Men think little about things of which they cannot speak.

It is necessary to get rid of the notion that liberty of opinion as now understood was really characteristic of England in the earliest years of the nineteenth century, in order that we may realise the full extent of an intellectual and moral revolution which, because it has not been accompanied by outward violence or startling political changes, is apt to escape notice. To-day, at the beginning of the twentieth century, the expression of opinion has in England become all but completely free. One or two facts may serve as sign-posts to mark the stages of this revolution.

By the middle of the nineteenth century the restraints imposed by law on free discussion had all but vanished. Statutes or common law rules which, except on the ground of sedition or defamation, interfered with liberty of speech or writing were, in practice at any rate, obsolete. Even in 1841 the trials of Hetherington and Moxon—oddly connected as they were—for the publication of blasphemous libels were felt to be anachronisms. The maxim that Christianity is part of the common law49 was derided by eminent lawyers. In 1859 the whole tone of Mill’s Liberty implies that the discussion of all political and even of most social topics was little checked by law. Buckle’s injudicious denunciation of the imprisonment inflicted on Pooley, a half-witted Cornish labourer, for writing up in public places language offensive to every Christian, as a gross instance of legal persecution proves that such persecution was in reality all but unknown; whilst the general feeling that the severe punishment of a semi-maniac, for the indecency rather than the blasphemy of his language, was a mistake, shows the tolerant spirit of the time. Later legislation50 has removed such trammels on the freedom of the press as existed in 1859. The necessary vagueness of the law of libel is now open to objection, if at all, on the score only of its inefficiently protecting the possible victim of defamation.

Even in 1859 Mill’s Liberty denounced the hostility, not of the law but of social opinion, to independence of conduct and originality of thought. But this complaint, whatever its reasonableness in Mill’s day, sounds in 1905 nothing better than a paradox. Before the end of the nineteenth century the expression of opinion had become all but completely free. At the present time there are no political, and very few social, moral, or religious theories to the maintenance whereof is attached that kind of reprobation which would deter a man of ordinary firmness from freely speaking his mind. The silence which, among the family of James Mill, concealed religious scepticism would now be an absurdity. Avowed agnostics or the adherents of new and strange creeds suffer nothing in public estimation. Bradlaugh was, before the close of his life, a respected member of Parliament, and popular, it is said, among his fellow members, yet Bradlaugh’s atheism would have shocked such deists as Franklin or Tom Paine. Clergymen, it is true, still subscribe to, and are supposed to be bound, in some very indefinite sense, by the doctrine of the Thirty-Nine Articles. But the clergy of the Church of England in practice enjoy the right to express their opinions on all matters of religion and theology with nearly as much freedom as the laity. Not only upon Biblical history but upon doctrines which have often been supposed to be the fundamental dogmas of Christianity, preachers whom every man respects may utter criticisms which, in the days of Dr. Arnold, would hardly have been whispered by a minister of the Church of England to his most intimate friend, and which in 1860 would have amazed, if not scandalised the authors of Essays and Reviews, and might well have given rise to proceedings in the Ecclesiastical Courts.

Englishmen, then, of all classes have obtained, and practically exercise the right to say or print whatever they like, provided they are not guilty of sedition or defamation. We are witnessing a freedom of thought and of discussion more complete than has ever permanently existed among the whole people of any country known to us by history. This statement is not equivalent to the assertion that the English world of to-day is characterised by any special vigour or originality either of intellect or of character. Mill and others held, and with truth, that vigorous persecution, either legal or social, may destroy the capacity for free thought. They thence concluded that absolute freedom would stimulate originality and individuality. This inference is of most dubious validity. All men hate trouble and the discovery of truth or the detection of error involves a laborious process of thought, whilst few are the men to whom the attainment of truth is an object of keen desire. Add to all this that man is far more of an imitative than inventive animal, and inventiveness or originality is the rarest of all gifts. What ground is there, then, for holding that human beings, simply because they are left free to think and act as they like, will in fact like to labour in the search for truth, or to strike out new paths for themselves rather than pursue the pleasant and easy course of imitating their neighbours? Whether, however, freedom of opinion or discussion be the parent of originality or not, the one thing which is past a doubt is that such liberty exists in modern England.

My reason for insisting upon this point with perhaps excessive emphasis is, that the development of freedom of opinion has in England been in the closest way connected with, and indeed has been one main cause of, that singular phenomenon which is best described as the disintegration of beliefs or, in other words, the breaking up of established creeds, whether religious, moral, political, or economical.51

This characteristic of modern England has attracted special attention in the field of theology, where, with some inaccuracy of thought, it has been identified with scepticism. In reality, whether in the realm of religion or elsewhere, it means simply the breaking up or dissolution of large and coherent systems of opinion. This break up of any dogmatic system no more results of necessity in scepticism than it does in increased belief or faith. Its one indubitable effect is to weaken some body of opinion and thus leave room for the growth of other forms of belief. The open avowal of Agnosticism, the increased authority in the Church of England of High Church doctrine, the revival in England of Roman Catholicism,52 and the creation of the Salvation Army are all facts belonging to the present time; they have all been equally fostered by the disintegration of beliefs.

In any case this dissolution of dogmatic systems is clearly traceable in provinces of thought which border upon and run into the domain of legislative opinion. Faith, for instance, in the English Constitution was, fifty years ago, the common characteristic of almost all our statesmen. This was a creed of no sudden growth. It had been preached by the genius of Burke, it was enforced by the arguments and learning of Hallam, it colours every page of Macaulay. It explains Wellington’s celebrated declaration53 that the nature of man was incapable of creating, by any effort, institutions of such paramount excellence as the constitution which England enjoyed under the unreformed Parliament of 1830. The Whigs never desired to do more than to repair the revered fabric of the constitution. Many of them held that the policy of reform was nothing but the strengthening of the original foundations on which rested the institutions of England. Lord John Russell—to call him by the name by which he will always be remembered—was the most rigid of Whigs; Lord Palmerston was a man of the world and a flexible statesman, little hampered by any general principles or formulas. But both Russell and Palmerston believed, and acted on the belief, that Frenchmen, Germans, or Italians might all of them put an end to any grievances under which they suffered by the adoption of the form of Government which existed in England; a constitutional King, a House of Lords and a House of Commons, and the whole English party-system, must, it was thought, be enough to ensure the happiness of any nation.

This was, in the main, the creed of at least two generations. Hence the enthusiasm54 —which in 1905 has become almost incomprehensible—for the three glorious days of July which, as in 1830 all Englishmen believed, would close the era of revolutions, by endowing France with the blessing of constitutional monarchy. But from 1830 onwards attacks began to be made on the popular faith in the English Constitution. Benthamites led the way. Place, who carried the doctrines of his teachers to absurdity, pronounced the Constitution to be nothing better than a nose of wax which could be twisted in any way one pleased. In 1838 Richard Cobden contemned the “great juggle of the English Constitution—a thing of monopolies, and Church-craft, and sinecures, armorial hocus-pocus, primogeniture, and pageantry,” gravely suspected that for the great mass of the people Prussia possessed “the best government in Europe,” and would gladly have given up his taste for talking politics to secure for England an administration as good as that of Prussia.55 Carlyle, between whom and the great Free-Trader there were many unsuspected points of sympathy, derided all the favourite formulas of constitutionalists as shams, and accustomed his readers to see in Cromwell and Frederick the Great the sort of heroes who, in defiance of constitutional or democratic principles, could govern a people vigorously for the people’s own good. Still faith in constitutional government died hard. Between 1860 and 1870 Matthew Arnold’s satire was directed against that stolid belief in English institutions which to his mind was still strong enough to present a formidable hindrance to the intellectual and moral improvement of his countrymen.

Times have changed. Where shall we now find the ardent believers in the constitution of England? If they exist at all they belong in spirit to the past. One consolation indeed may be tendered to the Whigs of an old type who still remain amongst us as interesting survivals of another age. If belief in constitutionalism has all but vanished, the faiths or heresies which were its rivals are rapidly becoming the ghosts of dead ideals. Who is there who now expects political salvation from any heaven-sent hero? An autocrat who aspired to play the part of a modern Caesar ruled France for some eighteen years, but his reign ended with the disaster and ignominy of Sedan. The King of Prussia, that “good and just man who,” in Cobden’s eyes, “shattered the sceptre of despotism, even in his own hand,” by his zeal for popular education, has been succeeded by a combined King of Prussia and German Emperor, whose power is based on the fact that Prussia is, as it always has been, and Germany is fast becoming, a military state in which the whole nation is a trained army.

Nor has democratic republicanism fared better than other political creeds. The vast Republic of the West, and the Third Republic of France, which has now lasted longer than any constitution welcomed or endured by the French people since 1789, are both forms of government which may to a certain extent satisfy the judgment, but do nothing to gratify the imagination or kindle the enthusiasm of mankind. Neither at Washington nor at Paris can the most enthusiastic of democrats discover an ideal Commonwealth. Republicanism, it has been said by an eminent Frenchman, has ceased to be a heresy, but it has also ceased to be a faith. This is the epitaph which, with the necessary verbal changes, must be inscribed over the tomb of more than one political system which, during the nineteenth century, has for a time commanded more or less confidence. To no political and social faith is it more applicable than to the Benthamite liberalism of 1830. Utilitarianism in its turn has been shattered by the disintegration of beliefs.

This fact need excite no surprise. Benthamism was a coherent system; its ethics, its constitutional theories, its jurisprudence, and its political economy were indissolubly linked together, and were indeed different aspects of one and the same theory of life and human nature. The creed owed its power in part to the large element of truth, now much underrated, which it contained, in part to its self-consistency and to the clearness and precision of its dogmas, and in part also to the unbounded faith of its adherents. As long as utilitarian doctrine remained clear and dogmatic, and was preached by teachers who could put forth the truth as they saw it without hesitation or limitation, the authority of utilitarianism waxed great; but the gradual disintegration of beliefs, the result of that freedom of discussion which had been gained by the efforts of the Benthamites, told against the Benthamite faith. Utilitarians, as has been shown by the example of John Mill, became infected with candour and eclecticism; but the breadth and indefiniteness of an eclecticism which attempts to combine in one whole the half truths to be found in different systems cannot excite enthusiasm or stimulate men to action. Open-mindedness, candour, and the careful sincerity which forbids all exaggeration, even of the truth, are admirable qualities, but they are not the virtues which obtain for a faith the adherence of mankind. It is the definiteness not the vagueness of a creed, as it is the honest confidence of its preachers, which gains proselytes. As utilitarian doctrine became less definite, and as its exponents stated it with less boldness and with more qualification, the authority of Benthamism suffered a decline. The influences which dissolve a creed told alike upon preachers and hearers.

Consider from this point of view the side of utilitarianism which bore most closely on legislation, and note the change, not so much in the principles as in the tone of political economy. This is a matter rather of history than of economics, and thus fairly open to the consideration of persons who make no pretension to be economists. Between 1830 and 184556 the common run of political economists, of whom Miss Martineau and Cobden may be taken as types, showed a marked tendency to treat political economy as a definite and recognised science, the laws whereof were as well established as, and possessed something resembling the certainty of, the laws of Nature.57 Some apparently dogmatic writers may indeed have introduced limitations or qualifications hardly noticed by their readers; but what we are here concerned with is the effect on the outside public; and it can scarcely be disputed that between 1830 and 1845 political economy was received by the intelligent public of England as a science containing very definite and certain principles from which were logically deduced conclusions of indisputable and universal truth. In Mill’s Political Economy one can already perceive a modification, if not exactly of doctrine, yet certainly of tone and feeling. The doctrine of laissez faire, for example, and the mode of looking at life, and above all at legislation, loses a good deal of its rigidity and of its authoritative character;58 and this modification is at any rate a step towards the conclusion which some later writers favour, that in determining the cases in which the intervention of the State (e.g. in the control of labour) may be beneficial we ought not to place reliance on any definite maxim or presumption in favour of respecting individual freedom, but must consider in each particular instance how far the action of the State is likely to be more beneficial than unrestricted competition.

“It is futile,” writes Jevons in 1882,

to attempt to uphold, in regard to social legislation, any theory of eternal fixed principles or abstract rights. The whole matter becomes a complex calculus of good and evil. All is a question of probability and degree. A rule of law is grounded on a recognised probability of good arising in the opinion of the lawgiver from a certain line of conduct. But as there almost always occur cases in which this tendency to good is overmastered by some opposite tendency, the lawgiver proceeds to enact new rules limiting, as it is said, but in reality reversing, the former one in special cases. Lawgivers, as well as philosophers, delight in discovering euphemisms adapted to maintain the fiction of universal principles. When the principles fail to hold good, it is said that the cases are exceptional. It is a general principle that a man may do as he likes with his own property. It is an exception when a railway company forcibly takes possession of his land.

I venture to maintain, however, that we shall do much better in the end if we throw off the incubus of metaphysical ideas and expressions. We must resolve all these supposed principles and rights into the facts and probabilities which they are found to involve when we inquire into their real meaning.59

On the soundness of this modification or denial of the doctrine of laissez faire there is no need to pronounce any judgment. The matter to be here insisted upon is that any introduction by competent teachers of modifications or qualifications into the doctrines of political economy inevitably deprives these doctrines of much of their popular authority. Absolute precepts may command absolute belief and obedience. But a rule originally supposed to be without exception true, is certain, when qualified by even the fairest of exceptions, to lose far more of weight with the general public than ought in reason to be taken from it. When once it is taught that there is no rule, or hardly any presumption in favour of laissez faire, every man will in practice hold that wherever a law will get rid of what he deems an evil, by which he and his fellows suffer (e.g. the unlimited competition of aliens), the intervention of the State is beneficial.60 A creed which has lost authority has of necessity left room for the rise of new and opposed beliefs. Add to this that economists themselves seem sometimes to dread that the attempt to treat economical problems in a scientific spirit should deprive them of that sympathy which they not only give to others but themselves require.61

Here we touch upon the apotheosis of instinct. That reaction of the nineteenth against the eighteenth century, the influence whereof streamed in upon John Mill and his contemporaries,62 and thus deeply affected the generation which came under their teaching, was by no feature characterised more distinctly than by the new importance attached to the emotional as contrasted with the rational side of human nature. This reliance on or appeal to feeling or instinct would have appeared to Bentham and his school little better than a roundabout way of declaring that the merit or demerit of any course of action, e.g. the passing of a law, depended upon the feeling of the person making the appeal. All reference, in short, to emotions, which could not be justified on utilitarian grounds, would have seemed to the Benthamite school a specimen of that ipse-dixitism (to employ one of their master’s own expressions) which he and his disciples held in special abhorrence.

We may think that this dread of sentimentalism was connected with an incomplete view of human nature, but it ought to be admitted that utilitarian Liberals possessed, from their own point of view, two justifications for regarding with suspicion that appeal to instinctive feeling which has since their time played so marked a part in the public life of England.

The reform, in the first place, of law and society in accordance with the principle of utility depended on the possibility of calculating, not indeed with anything like mathematical but with a certain sort of rough accuracy, the effect of a given law in increasing or diminishing human happiness. But in order that such a calculation may be possible, it is essential that a law or an institution should be criticised on assignable grounds—as, for instance, that it will increase or diminish the security of property, or that it will lower or raise the price of food. For if once the defenders or censors of a legal or other innovation desert such definite grounds of criticism, and appeal to their own instinctive feelings of approval or disapproval, the application of the Benthamite method to the law of a country becomes an impossibility. How can one reason about the advantage, for example, of allowing or forbidding divorce, if A simply asserts his sympathy with freedom of affection, and B retorts that his instinct or conscience bids him respect the sanctity of marriage? There is in reality no common ground of argument.

Then, in the second place, strong and natural sentiments most sincerely entertained, come into conflict with one another. It is difficult to make emotion, however respectable, the basis of sound legislation. It is absolutely certain that utilitarian reforms, of which every one now admits the benefit, have often been achieved in defiance of popular sentiment. In any case it is clear that the apotheosis of instinct has, whether for good or bad, tended to produce results which would have startled the reformers of 1830.

Consider the growth of English imperialism.63

In no part of our public life did the principles of utilitarianism obtain at one time more complete acceptance than in everything which regarded the relation of England to her colonies. Bentham’s Emancipate your Colonies, published in 1793, was addressed to the French National Convention. It urged upon France, and upon all other countries which possessed a colonial empire, the expediency and the duty of bringing about a peaceable separation from their dependencies. This counsel did not obtain the assent of Frenchmen, but whether accepted or not, it became to them of little practical importance owing to the success of the English navy in stripping France of possessions outside Europe. Nor did Emancipate your Colonies produce any immediate effect in England. But this application of laissez faire, first published for sale in 1830, gradually gained the approval of English public opinion. Obvious facts told for more than argument. The contest with the American Colonies and its issue had never been forgotten. No revenue could be raised from Englishmen living outside the United Kingdom. The possibility of monopolising colonial trade became doubtful. Hence it was increasingly difficult to prove that England gained any pecuniary advantage from the possession of dependencies. Towards the middle of the nineteenth century laissez faire was the order of the day. In no sphere of action was the trouble saved by leaving things alone more obvious than in England’s government of colonies, which, if distance be measured by time, were much farther off from the mother-country than they are at present, and which assuredly desired to govern themselves.

In 1841, Sir George Cornewall Lewis published his Government of Dependencies. He was a disciple of Austin; he belonged in spirit to the Benthamite school; he was a statesman versed in administrative affairs, and possessed a high reputation not only for philosophic enlightenment, but for practical soundness of judgment. His book is the application to our colonial policy, by a man of good sense and political experience, of the tenets propounded by Bentham. Lewis’s teaching represented the opinion entertained between 1840 and 1860 by all sensible Liberals. To such men it seemed obvious that the course of prudent statesmanship was to leave our colonies as much as possible alone, to be prepared at any moment for their desiring independence, and to be careful only that separation, when it came, should be peaceable and take place under feelings of mutual goodwill and friendship. Some statesmen of repute considered our colonial empire itself a matter of regret. Brougham in 183964 described Wolfe’s capture of Quebec as an operation “which crowned our arms with imperishable glory, and loaded our policy with a burden not yet shaken off.” He cites also, with the keenest approval, the view of Lord St. Vincent in 1783, that Canada ought to be surrendered, and his opinion that by not then surrendering it we were retaining “a running sore, the source of endless disquiet and expense,” and that “if this fair occasion for giving up Canada is neglected, nothing but difficulty, in either keeping or resigning it, will ever after be known.”

Disraeli was not indifferent to the power of England; he stands in popular imagination, and not quite without reason, as the forerunner of imperialism, but he wrote in 1852 to Lord Malmesbury, “These wretched colonies will all be independent in a few years, and are a millstone round our necks.”65 The leaders of the Manchester school, who represented the ideas of Benthamite liberalism, assuredly deplored the existence of our colonial empire. If proof of this be needed, read these extracts from the writings of Richard Cobden:

If it could be made manifest to the trading and industrious portions of this nation, who have no honours or interested ambition of any kind at stake in the matter, that, whilst our dependencies are supported at an expense to them, in direct taxation, of more than five millions annually, they serve but as gorgeous and ponderous appendages to swell our ostensible grandeur, but in reality to complicate and magnify our government expenditure, without improving our balance of trade,—surely, under such circumstances, it would become at least a question for anxious inquiry with a people so overwhelmed with debt, whether those colonies should not be suffered to support and defend themselves, as separate and independent existences.66

The Corn Laws are a part only of a system in which Whig and Tory aristocracy have about an equal interest. The colonies, army, navy, and church are, with the corn laws, merely accessories to our aristocratic government.67

It is customary, however, to hear our standing army and navy defended as necessary for the protection of our colonies, as though some other nation might otherwise seize them. Where is the enemy(?) that would be so good as to steal such property? We should consider it to be quite as necessary to arm in defence of our national debt.68

Cobden’s language was more trenchant and his mode of thinking more logical than the words or thoughts of ordinary politicians. But his expressions if they exaggerated, on the whole represented the sentiment of the time. Conduct rather than words is the true test of men’s convictions. One feature of English policy is sufficient to show the slight importance attached at one time to the connection between the mother-country and her dependencies. From 1855 onwards Victoria, New South Wales, and other colonies, received from the Imperial Parliament powers of self-government as wide as were compatible with their remaining part of the British Empire. Belief in free trade had at that date risen to an ardent faith that free exchange was an unquestionable benefit for all countries at all times and under all circumstances. Yet statesmen who held this creed made no attempt to prevent the self-governing colonies from adopting a protective tariff even against the mother-country. Two explanations of this conduct may be suggested. The one is the expectation of free-traders that when once England had renounced the heresy of protection its fallacies would cease to delude the rest of the world. The other explanation is that between 1850 and 1860 English statesmen hardly considered the British colonies as a permanent part of the Empire. It was doubtful, they thought, whether either England or English dependencies gained anything by forming one State; colonial self-government seemed only a stage towards national independence. Separation would be merely the dissolution of a partnership which prevented the colonies from carrying on their own affairs in their own way, and which imposed upon England heavy and unprofitable burdens.

A thorough change has during the last thirty years come over the whole spirit of our colonial policy.69 The sincerity of our imperialism is shown by our action. The war in South Africa was as surely waged by England and her self-governing colonies to maintain the unity of the British Empire as the war against the Southern States was waged by the Northerners to maintain the unity of the United States. Neither the British people nor the citizens of the Northern States were prepared to acknowledge the right of secession. The determination of the English people to resist the dismemberment of the Empire seems to myself, as it must have seemed to every Englishman who gave his moral support to the war with the Boers, fully defensible on grounds of good sense and of justice. Nor was there any difficulty in defending the war in South Africa on grounds which would commend themselves to any utilitarian who took an extended view of national interest. The maintenance of the British Empire makes it possible, at a cost which is relatively small, compared with the whole number of British subjects, to secure peace, good order, and personal freedom throughout a large part of the world. In an age, further, of huge military States it is of the highest importance to safeguard against foreign aggression one of the two greatest free commonwealths in existence. The day of small States appears to have passed. We may regret a fact of which we cannot deny the reality. Great empires are as much a necessity of our time as are huge mercantile companies.

These and other like considerations, to which even the most utilitarian of statesmen could not refuse attention, may be urged, and ought to be urged, in support of English imperialism, but an imperialist ought not to hesitate to make two concessions. The one is that it is difficult to prove that the individual happiness of a citizen, say of London, is, because of the maintenance of the British Empire, either greater or less than the happiness of a citizen of Switzerland, whose country can boast of no dependencies. The other concession is that, though valid utilitarian arguments may be adduced for resistance to the aggressions of the Boers, the spirit which enabled the United Kingdom and its colonies to carry an arduous war to a successful end owed its force not to these arguments but to a sense of the greatness, to the memory of the achievements, and to faith in the future, of the British Empire. The yearly crowning of Nelson’s column, the influence exerted by the writings of Froude, of Seeley, and above all of Mahan, the tales and the verses of Rudyard Kipling, with their glorification of British imperial sway, and the echo which the teaching of all these writers finds in the hearts of the English people throughout the United Kingdom and our self-governing colonies, all tell their own tale. They all bear witness to the power exerted by a kind of sentiment which it is extremely hard to express in terms of utilitarian philosophy. Imperialism is to all who share it a form of passionate feeling; it is a political religion, for it is public spirit touched with emotion. No sane imperialist should care to deny that this is so. He may well admit the dangers while vindicating the essential reasonableness of a policy founded in part on feeling. He will, however, unhesitatingly contend that enthusiasm for the maintenance of the British Empire is a form of patriotism which has a high absolute worth of its own, and is both excited and justified by the lessons of history. But here we pass from a striking illustration of the influence exerted in the public life of modern England by a sentiment hardly understood or appreciated by the Benthamite school, to the influence of historical tradition, which is connected with and stimulated by historical habits of thought.

This historical method,70 or the habit of looking at ideas and institutions in the light of history and as part of the growth of society, was foreign to the prevailing spirit of the eighteenth century, and was especially repugnant to Bentham, in this, as in all things, the true son of his age. Read carefully this passage from his note-books:

He [Chamberlain Clarke] ridiculed Panopticon; he had admiration for all that is ancient, dislike for all that is modern; he had a theory that law should descend from generation to generation, because law is weighty, and ought, therefore, naturally to descend: he put me on the wrong scent in my studies; prevented my getting forward by always driving me back, back. He sent me to read indifferent accounts of law as it was; he so filled my mind with notions of the merit of looking backwards, that I took to Anglo-Saxon inquiries, studied their language, and set myself to learning laws that had passed away.

I remember joining him to deplore the loss of Lord Mansfield’s manuscript by the mob; I should now think such a loss a gain.71

We are apt to smile at the grotesque naïveté with which our philosopher rejected counsel which would now be pressed upon a student by the most learned and capable of the teachers of law both in England and in the United States, and to regret,72 in a patronising manner, that Bentham should have lacked the historical spirit. Meanwhile we often fail to observe, what is a matter of some consequence, that the indifference of Bentham and his school to merely historical inquiries was grounded on a sound instinct. In many departments of life, and certainly in the province of law reform, the analysis of human nature as it exists is of infinitely more importance than research into the annals of the past.73 Nor does the matter end here. The historical spirit, and still more the turn of mind which it produces, may well be hostile to rational reform of the Benthamite type; and this in more ways than one.

Interest in the origin of laws or institutions shifts the aim of legal study. To Bentham its object was the promotion of salutary legislation which might benefit mankind. To Maine and his disciples the study of law had as its aim, not the reform of legislation, but the knowledge of legal history as one of the many developments of human thought. To Benthamites the promotion of human happiness, to enthusiasts for research the extension of historical science, is the true end of thought and study. As research becomes more important than reform, the faith that legislation is the noblest of human pursuits falls naturally into the background, and suffers diminution. By this change science may gain, but zeal for advancing the happiness of mankind grows cool.

An historical inquirer again has, as such, no reason for disliking an abuse. The institutions, such as slavery, which have added to the miseries of mankind, have a history, and a very important one, no less than have the movements which have conferred the greatest blessings upon humanity. There is then no reason why the effort to understand the development of an abuse should not to the zealot for research be at least as interesting as the labour necessary for its removal. Insistence, indeed, upon the historical grandeur of a constitution, which is full of patent defects, may become, even with a man endowed with the genius and the philanthropy of Burke, a plea for strenuous opposition to its practical improvement.

Historical research, further, just because it proves that forms of government are the necessary outcome of complicated social conditions, first, indeed, leads to the true conclusion that the wisest legislation can do far less than both philanthropic philosophers74 and the ordinary public suppose, for the immediate benefit of mankind, but next suggests the less legitimate inference that it is a waste of energy to trouble one’s self greatly about the amendment of the law.

The opposition, moreover, between Benthamite schemes for the benefit of mankind, and the spirit engendered by historical research may with advantage be looked at from a wider point of view. Individualistic liberalism, whatever may be the form it takes, rests upon a strong and even an excessive appreciation of the characteristics which are common to all men, but historical research, especially if it be carried back to, or even beyond the earliest stages of civilisation, brings into prominence and exaggerates the dissimilarities between different classes and especially between different races75 of mankind, and thus tends, not indeed to remove the reasonable grounds for securing to all men, as far as may be possible, an equality of rights, but to quench the confident enthusiasm necessary for the carrying out even the most well approved and the most beneficial among democratic innovations.76

The historical spirit, in the last place, often suggests to thinkers ideas of great speculative value which tell upon the feelings of whole peoples who know not whence they derive their thoughts, but in whom these thoughts, being transformed into passions, may work out results very different from those aimed at by any philosophical reformer and results of which the good and the evil may be nearly equally balanced.

Nationalism, for instance, or the enthusiastic belief that the inhabitants of a country ought to be ruled exclusively by men of, or supposed to be of, their own race, has undoubtedly been intensified by the prevalence of the historical spirit, and has in turn lent new prestige and vigour to the use of the historical method. But nationalism has assuredly created an atmosphere in which utilitarian ideas cannot easily flourish. The greatest-happiness principle no doubt suggests that the inhabitants of a country may be better or, so to speak, more comfortably governed by native than by foreign rulers. Austrian administrators, though capable enough, were more likely to outrage Italian feeling than the grossly incompetent but Italian kings of the two Sicilies. Napoleon, the greatest administrator of his time, offered worse outrages to the sentiment of Spain than the vilest of the Spanish Bourbons. But who can deny that the administration of Lombardy may have been as good under the Austrians as now under the rule of an Italian monarch, or that Napoleon might have conferred upon Spain an administrative system which, from a utilitarian point of view, would have been far preferable to any scheme of government which has for centuries existed in the Spanish Peninsula? And if it be urged that, since Spaniards or Italians would not acquiesce in the rule of foreigners, it was impossible for alien rulers to establish good government either in Spain or in Lombardy, a thorough-going Benthamite would retort that this assertion, even if true, is irrelevant, for the resistance was caused by nationalism, and the question under consideration is whether the happiness either of Italians or Spaniards was promoted by yielding to the spirit of nationality.

However this may be, it can hardly be disputed that nationalism, connected as it often is with historical traditions belonging to a past age, may, and often has become a hindrance to what any Benthamite Liberal would account good government. What is even more to be regretted, a narrow spirit of nationalism, fostered, as it often is, by historical traditions, has in more States than one produced racial divisions and animosities, which are not only in themselves a gigantic evil and an impediment to all true progress, but, since they depend upon feeling rather than upon any wish for good government, cannot be composed by any merely rational reform of laws or of institutions. Here, in short, the historical spirit unites disastrously with the apotheosis of instinct. Happy, from a Benthamite point of view, is the nation which is not haunted by the dream or nightmare of past or traditional glory. The singular absence in England of all popular traditions causes some natural regret to poets and even to patriots. Yet it has assuredly favoured the growth and the preservation of English freedom. Forgetfulness is in politics akin to forgiveness. The absence of historical hatreds has at any rate delivered England from the spurious patriotism which

  • Visits ancient sins on modern times
  • And punishes the Pope for Caesar’s crimes.

The enthusiast for nationality can indeed hardly deny that nationalism has often been a hindrance to various kinds of improvement, but he will of course plead that the spirit of nationality is of more value than any material or even than some kinds of moral progress. Whatever be the truth of this plea, the opposition between Benthamism and nationalism77 is obvious. The historical spirit, therefore, in giving prominence to the idea of nationality has told against the authority of utilitarian liberalism.

The disintegration, then, of beliefs has weakened the authority of Benthamite doctrine; the apotheosis of sentiment has rendered difficult the application of the utilitarian theory to the amendment of the law; the historical method has fostered a spirit foreign to the ideas of Benthamite philosophy. Three tendencies pre-eminently characteristic of our time have, therefore, diminished, to say the least, the power of individualism and favoured, or at any rate cleared the ground for, the growth of collectivism. But we have already passed into a field of thought which lies beyond the limits of these lectures. An English lawyer ought not to trespass further upon the province of historians, moralists, or philosophers. He will do well to direct attention as far as possible to the close and demonstrable connection during the nineteenth century between the development of English law and certain known currents of opinion. He should insist upon the consideration that the relation between law and opinion has been in England, as elsewhere, extremely complex; that legislative opinion is itself more often the result of facts than of philosophical speculations; and that no facts play a more important part in the creation of opinion than laws themselves. He must above all enforce the conclusion at which every intelligent student must ultimately arrive, that each kind of opinion entertained by men at a given era is governed by that whole body of beliefs, convictions, sentiments, or assumptions, which, for want of a better name, we call the spirit of an age. “Deeper than opinions lies the sentiment which predetermines opinion. What it is important for us to know with respect to our own age or any age is, not its peculiar opinions, but the complex elements of that moral feeling and character in which, as in their congenial soil, opinions grow.”78

Appendix

[47. ]For Mill’s influence see Henry Sidgwick, A Memoir, p. 36. [Editor’s note: This footnote was added in the second edition.]

[48. ]As late as 1830 Milman’s History of the Jews shocked English opinion. “In this unpretending book for the first time ‘an English clergyman treated the Jews as an oriental tribe, recognised sheiks and emirs in the Old Testament, shifted and classified documentary evidence, and evaded or minimised the miraculous.’ Consternation, which the author had not anticipated, spread among the orthodox; the sale of the book was not only stopped, but the publication of the series in which it appeared ceased.”—Milman, Dict. Nat. Biog. xxxviii. p. 3, by R. Garnett.

[49. ]Whether the publication of an attack on Christianity made in a serious spirit and in decent language might not still theoretically expose a man to prosecution, is uncertain. See Stephen, Digest Crim. Law, 5th ed. Art. 179, p. 125; and compare Odgers, Libel and Slander, pp. 475, 490. It is certain, however, that in practice such an attack on Christianity would now not expose any man to punishment.

[50. ]See Stephen, Comm. iii. ch. xvi. (14th ed.), pp. 229–234; the Newspaper Libel and Registration Act, 1881, the Law of Libel Amendment Act, 1888.

[51. ]This need excite no surprise. Free discussion does in the end favour the establishment of indisputable truths, but its immediate effects are first to direct attention towards the weak points of any existing body of beliefs, and next to reveal an unexpected amount of dissent from received formulas. Now, as an ordinary man’s faith in any moral or intellectual doctrine depends in part on its coherence, in part on the authority of experts, and greatly also on the sympathy of others with his faith, anything which shows that a creed is not entirely consistent, that even experts are not agreed as to its truth, or that many persons dissent from it, inevitably shakes the faith of ordinary believers. See on this subject Tarde, Les Lois de l’Imitation.

[52. ]Any one whose memory of past phases of opinion stretches back over sixty years will acknowledge that at a time to be remembered by men still living, Roman Catholicism seemed to ordinary Englishmen to be, as far as England was concerned, a thing of the past. It was to them, like Jacobitism, a dead faith. One may find a record of this state of feeling in Father Clement, a not unimpressive religious tale, which, published in 1823, had by 1860 reached thirteen editions. Its aim was to show, from an Evangelical point of view, that a Roman Catholic priest might, in spite of all his superstitions, be a man of deep personal piety.

[53. ]See Walpole, Hist. ii. p. 12.

[54. ]Compare the language of James Martineau, in a letter to a friend, September 9, 1830. “‘France! glorious France! Has there ever been a week since the Resurrection which has promised such accumulated blessings to our race, as that week of national regeneration? Where will it end? The invigorating shock must pass through the Netherlands, Spain, Italy. When that revolution is compared with any period of history, in what an encouraging light does it exhibit modern character and mind. The whole struggle has been conducted in a spirit of disinterestedness which to me is impressive in the highest degree. Such a people must be almost within sight of the value of religious truth.’”—Cited James Martineau, by J. Estlin Carpenter, p. 67 (n.).

[55. ]Morley, Life of Cobden, i. pp. 130, 131.

[56. ]See especially Mill, Autobiography, pp. 246, 247. Compare Austin’s attack on Dr. Friedrich List’s Das nationale System der politischen Oekonomie, in Edinburgh Review, lxxv. (July 1842), p. 515. This examination by Austin of our author’s pretended system is well worth notice. The attack on protection is powerful, but the tone is obviously different from that which a writer of half Austin’s ability would, in 1905, adopt in the criticism of the views held by an eminent opponent. The dogmatic tone is the more remarkable since Austin was by no means a narrow Benthamite, and, as we have seen, professed great disrespect for what he called the “universal principles of human nature of the political economists.” (See p. 117, ante.)

[57. ]“The political economists, in many instances at least, wrote as if an attempt to alter the rate of wages by combinations of workmen was like an attempt to alter the weight of the air by tampering with barometers. It was said that the price of labour depended, like the price of other commodities, solely upon supply and demand, and that it could not be altered artificially” (Stephen, History, iii. p. 211). Compare for the tone of economists, the preface to Miss Martineau’s Political and Economical Tales.

[58. ]See Mill, Political Economy, Bk. v. ch. xi.

[59. ]Jevons, The State in Relation to Labour, 3rd ed. (1894), by M. Cababé, pp. 16–17. See also Intro. pp. vii, viii, xiii, xiv.

Contrast this with the language of Austin, Edinburgh Review, lxxv. “There is always . . . a general presumption against the expediency of such an interference,” i.e. an interference of a Government with the concerns of its subject (p. 527). “We are not bound to prove, in an affirmative or direct manner, the expediency of freedom of trade, since there is a general presumption against the interference of governments with the interests and concerns of their subjects” (p. 528, and see his general argument in favour of universal freedom of trade, ibid. p. 529).

[60. ]Note the language of an Ulster working man who on July 7, 1903, writes to the Times, stating, and probably with truth, that the workmen of America are better off than the workmen of England, and then proceeds: “Now there is something wrong here. You will, no doubt, agree that it should be the object of every statesman and of every Government to promote the welfare of the people, and to improve their conditions. How is it, then, that the British Government has not succeeded in placing us working men in anything like the splendid position that the American Government has placed its working men? Britishers should, I submit, be second to none. Our workmen are, without doubt, the finest and most intelligent men in the world; they should therefore receive the highest wages, and no Government, in my opinion, ought to experience any difficulty in securing the highest remuneration for such men; yet the British Government has been unable to do it, and I for one would like to know the reason why.”

The singular assumptions on which this argument rests are made by many persons, but are rarely put forward with as much openness as by the Ulster workman.

[61. ]Is it conceivable that Ricardo or Malthus would, after the manner of a distinguished living economist, have favoured his readers with a confession of faith, beginning and ending with credo in unum Deum? This declaration of religious belief sounds in a treatise on political economy as much out of place as the historical creed of St. Athanasius.

[62. ]See Mill, Autobiography, p. 161, and compare Mill, Three Essays on Religion, pp. 44, 45. [Editor’s note: The second half of this footnote was added in the second edition.]

[63. ]The word “imperialism” has, it has been well remarked by my friend Mr. Bryce, undergone a change of signification. In 1865 imperialism meant Caesarism (i.e. an autocracy like Louis Napoleon’s), as opposed to constitutional government, and was always used with an unfavourable connotation. In 1905 imperialism means the wish to maintain the unity and increase the strength of an empire which contains within its limits various more or less independent States. The expression is as applicable to the inhabitants of the United States as to the subjects of the British Crown. It is used sometimes with a favourable, sometimes with an unfavourable connotation.

[64. ]Brougham, Historical Sketches, Lord St. Vincent, p. 307.

[65. ]Memoirs of an Ex-Minister (ed. 1885), p. 260.

[66. ]The Political Writings of Richard Cobden, 1886, pp. 24, 25 (1835).

[67. ]Ibid. p. 2, Letter of 1836.

[68. ]Ibid. pp. 242, 243.

[69. ]In nothing is this change more visible than in the difference between the tone of Lewis’s Government of Dependencies, published in 1841, and the tone of the Introduction to the same work, in the excellent edition published by my friend, Mr. C. P. Lucas, in 1891. Among the possible advantages of possessing dependencies, Lewis mentions the “glory which a country is supposed to derive from an extensive colonial empire,” but he dismisses this point at once in a few contemptuous sentences. His editor can hardly understand this contempt, and finds the answer thereto in the assertion that the use of a colony to England cannot be measured by its present or marketable value. The contrast is the more instructive because both the writer and the editor of the Government of Dependencies must be held men of cool judgment and of sound sense, and write with the advantage of practical acquaintance with our colonial administration. A sane imperialist joins issue with a sane Benthamite; the difference in their point of view marks the opposition between the ideas of 1841 and the ideas of 1905.

[70. ]This expression has at least three meanings, or aspects, all of which are combined in the minds of its devotees:

1. The habit or practice of examining the growth or history of laws, institutions, customs, or opinions.

2. The desire and attempt to make discoveries in the history of mankind analogous to the discoveries made by means of investigation and experiment in the sphere of natural science.

Historical and scientific investigations may run easily into one another: an examination into the early history of civilisation, on the one hand, may throw light upon the Darwinian theory, and, on the other hand, Darwin’s speculations may be looked upon as inquiries into the early history of all living beings, including man.

3. The habit of looking upon men, not as separate individuals but as members or parts of the social organism.

[71. ]Bentham, Works, x. p. 51. Note, however, Bentham’s appreciative comment on Montesquieu, ibid. p. 143.

[72. ]It is more than doubtful whether the world would have gained any real advantage by Bentham having been inspired with enthusiasm for legal archaeology. Time spent on the exploration of legal antiquities would have been so much time and energy deducted from study of the principles which should guide a reformer in the amendment of the law. What at the end of the eighteenth century England needed and found in Bentham was not a legal historian but, to use the expression of Brougham, a legal philosopher.

[73. ]No discovery, for instance, as to the true character or constitution of the Witenagemót would have been of material aid to the writers of the Federalist in planning a constitution for the United States.

[74. ]“One ought not to complain of the wickedness of man, but of the ignorance of legislators who have always set private interest in opposition to public.”

“The hidden source of a people’s vices is always in its legislation; it is there that we must search if we would discover and extirpate their roots.”

“Moralists ought to know that as the sculptor fashions the trunk of a tree into a god or a stool, so the legislator makes heroes, geniuses, virtuous men, as he wills: . . . reward, punishment, fame, disgrace, are four kinds of divinities with which he can always effect the public good.”

These are the words of Helvetius (1715–1771). See Sidgwick, Miscellaneous Essays, p. 152. They embody the creed of Bentham. The historical method has made such language and such a faith impossible to-day for any man of education or ability. But has it not also made all but impossible that passionate enthusiasm for the amendment of the law which inspired the efforts of every reformer who had come under the influence of Bentham?

[75. ]“Ce qui est réellement abusif . . . c’est l’acceptation élastique prêtée par beaucoup de socialogues naturalistes au mot hérédité, qui leur sert à exprimer pêle-mêle avec la transmission des caractères vitaux par génération, la transmission d’idées, de moeurs, de choses sociales, par tradition ancestrale, par éducation domestique, par imitation-coutume.” [What really goes too far . . . is the elastic way in which many social scientists interpret the word “heredity.” They use it, as needed, to suggest that along with biological characteristics, ideas, morals and social views are transmitted—by ancestral tradition, upbringing, and imitation—from one generation to the next.]—Tarde, Les Lois de l’Imitation (2nd ed.), p. ix. [Editor’s note: The translation was added in the Liberty Fund edition.]

It is no mere accident that Maine, who in his Ancient Law undermined the authority of analytical jurisprudence, aimed in his Popular Government a blow at the foundations of Benthamite faith in democracy.

[76. ]The abolition of negro slavery was not only justified but absolutely required by the principle of utility and by the conscience of mankind; for negro slavery was a disgrace to civilisation and an obstacle to progress. But could the Abolitionists either in England or in the United States have fought with success their desperate battle against oppression had they not been strengthened by an unswerving faith in the essential similarity and equality of all human beings whether blacks or whites?

[77. ]Sympathy with national resistance to Napoleon in Spain and Germany was felt keenly by Tories and very slightly, if at all, by Whigs and Radicals.

Every creed, political no less than religious, if it is to be effective, must become a faith; but a faith is the alliance of thought with some strong and cognate feeling. Every form of political belief, therefore, seeks to connect itself with some appropriate emotion. This held good of Benthamite liberalism. It became a faith, but it could not naturally blend with the sentiments now known as imperialism or nationalism, though in 1830 they had hardly received definite names. Benthamism—just because the fundamental idea of utilitarian morality is that the proper aim of human action is the greatest happiness of the greatest number—had a real affinity, and in fact became closely allied with the sentiments of philanthropy and cosmopolitanism.

[78. ]Pattison, Essays, ii. p. 264.