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Appendix - Albert Venn Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (LF ed.) [1917]

Edition used:

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).

About Liberty Fund:

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


Appendix

note i.

The Right of Association

(See pp. 68–74, 109–113, 136–143, 189–193, ante;

Pic, Traité Élémentaire de Législation Industrielle, Les Lois Ouvrières (2nd ed.);

Hauriou, Prècis de Droit Administratif;

Trouillot and Chapsal, Du Contrat d’Association;

Loi 14–17, juin 1791 (Loi Chapelier);

Code Pénal, arts. 414–416; Loi 25 mai 1864; Loi 21 mars 1884; Loi 1erjuillet 1901.

See especially Duguit (Léon). Les Transformations du Droit Public (1913); Les Transformations Générales du Droit Privé (1912); L’État, Le Droit Objectif et la loi Positive (1901).)

(A)

The problem raised in every civilised country by the right of association.

Of the nature of the right of association and its peculiarities enough has been already said (pp. 109–113, ante).

The point to note is that at the present day its exercise raises difficulties in every civilised country. In England, as elsewhere, trade unions and strikes, or federations of employers and lock-outs; in Ireland, the boycotting by leagues and societies of any landlord, tenant, trader, or workman, bold enough to disobey their behests or break their laws; in the United States, the efforts of mercantile Trusts to create for themselves huge monopolies; in France, the real or alleged necessity of stringent legislation in order to keep religious communities (congrégations religieuses) under the control of the State—in almost every country, in short, some forms of association force upon public attention the practical difficulty of so regulating the right of association that its exercise may neither trench upon each citizen’s individual freedom nor shake the supreme authority of the State. The problem to be solved, either as a matter of theory or as a matter of practical necessity, is at bottom always and everywhere the same. How can the right of combined action be curtailed without depriving individual liberty of half its value; how can it be left unrestricted without destroying either the liberty of individual citizens, or the power of the Government? To see that this problem at the present day presents itself everywhere, and has nowhere received a quite satisfactory solution, is of importance. The fact suggests at least two conclusions: The one is, that the difficulty felt in England of dealing with our combination law arises, to a great extent, neither from the greediness of employers nor from the unreasonableness of workmen, but from the nature of things; the other is, that the most which can be achieved by way of bringing into harmony two essentially conflicting rights, namely, the right to individual freedom and the right of association, is to effect a rough compromise between them. Such a practical solution of a theoretically insolvable problem is sometimes possible. That this is so is proved by our existing law of libel. It is a rough compromise between the right of X to say or write what he chooses, and the right of A not to be injured in property or character by X’s free utterance of his opinions. The compromise is successful; it substantially allows freedom of discussion, and at the same time protects Englishmen against defamation.

(B)

Comparison between the development of the combination law in France and in England during the nineteenth century.

The expression “combination law,” though peculiar to the law of England, may conveniently be used as describing a particular part of French no less than of English law. It means the body of legal rules or principles which regulate the right of workmen, on the one side, to combine among themselves for the purpose of determining by agreement the terms on which, and especially the wages at which, they will work, or, in other words, sell their labour; and the right of masters, on the other side, to combine among themselves for the purpose of determining by agreement the terms on which, and especially the wages at which, they will engage workmen, or, in other words, purchase labour.

The development of the combination law in France and in England has been, during the nineteenth century, marked by curious similarities and differences. This will be seen to be so if we take the law of France and compare it with the law of England at different parts of the nineteenth century.

As to Similarities.

I. The combination law of France, no less than that of England, passed during the last century through three stages; these three stages of development in each country roughly correspond in character and in sequence, though not in date.

First Stage, 1800–1864. During this period trade combinations, whether temporary or permanent, either of men or of masters, were under the law of France unlawful, and the persons taking part in them were liable to punishment; a strike was a crime, a trade union (under which term we may include a combination of employers) was an unlawful association. (See Pic, pp. 185, 186, and 211–229; Hauriou, 5th ed. pp. 100, 101, and compare Hauriou, 3rd ed. pp. 155–158.) This was the effect of both revolutionary and Napoleonic legislation. In 1789 the National Assembly had dissolved all trade guilds, corporations, or unions. The Loi Chapelier, 14 juin 1791, imposed penalties on persons taking part—to use English expressions—in strikes or lock-outs, or becoming members of trade unions (see Pic, pp. 185, 186, 213). The Code Pénal, arts. 291, 292, prohibited all societies or associations of more than twenty persons (except mercantile partnerships) which were not authorised by the Government, and articles 414–416 punished with severe penalties combinations (coalitions) either of masters or of workmen; and the Code Pénal, though it did not come into force till 1810, more or less codified or represented the spirit of earlier revolutionary legislation. The combination law of France, moreover, was till 1849 not even nominally equal as between men and masters. It pressed heavily on combinations of workmen, and lightly on combinations of employers (see Code Pénal, arts. 414–416). In practice, a law which was felt to be oppressive by artisans was looked upon with favour by their employers. The law remained in substance unchanged till 1864; its severity as against workmen was increased during the reign of Louis Philippe (loi 10 avril 1834), and the law, though in 1849 it was so amended that combinations of workmen were placed nominally in exactly the same position as combinations of masters, still pressed with far greater severity on the employed than on employers.

The French combination law then from 1800 to 1864 bore, as regards its practical effect, a strong resemblance to the English combination law from 1800 to 1824 (see pp. 68–74, ante). Under French law it was impossible, under English law it was, to say the least, extremely difficult, for any workman to take part in a strike or to join a trade union without committing a crime. In France a trade union was an unlawful, in England it was at best a nonlawful association. In each country the combination law which prevailed there in the corresponding stage of its development originated in fact in legislation earlier than 1800. In each country enactments directly applying to combinations, whether of masters or of workmen, were supplemented by other parts of the law. Behind the combination law of France lay the extensive power conferred upon the Government (Code Pénal, arts. 291, 292) of refusing to authorise, or putting an end to the existence of whole classes of associations among which trade unions appear to have been included. Behind the English Combination Act of 1800 lay the law of conspiracy.

Second Stage, 1864–1884. The law of 1864 (loi 25 mai 1864) so amended the Code Pénal, arts. 414–416, as to make strikes lawful proceedings. The general effect of the law, with the details whereof we need not trouble ourselves, appears to have been this: Temporary combinations (coalitions) for the purpose of raising or lowering wages, or, as we should say, strikes or lock-outs, ceased to be punishable. On the other hand, various unlawful acts, such as acts of violence, assaults, menaces, or fraudulent manoeuvres, when done by any one for the purpose of maintaining a strike or lock-out, or generally interfering with the free exercise of a man’s business or work (exercice de l’industrie ou du travail) were made severely punishable, and the punishment was increased if these offences, e.g. an assault, were the result of a combination (plan concerté) (see Code Pénal, amended articles 414, 415), and the new crime was created of combining to interfere with the free exercise of a man’s business or work by the imposition of fines, prohibitions, and the like. No doubt the new crime might be committed as well by masters as by men, but it is obvious that the general effect of the amended law was to punish severely every unlawful act, and a good number of acts not in themselves unlawful, which interfered with free trade in labour. When we remember that a trade union still remained an unlawful society, the general result of the legislation of 1864 must have been that whilst a strike was no longer in itself an unlawful proceeding, it remained hardly possible to use any of the means which render a strike effective without a breach of the law, or, in other words, without the commission of a crime (Code Pénal, arts. 414–416, as amended by loi 25 mai 1864).

The general likeness between the French combination law of 1864 to 1884 and the English combination law of 1825 to 1875 (see pp. 136–143, ante) is patent. In each country the law was intended to establish free trade in labour. It allowed to masters and to men such an amount of combined action among themselves as the legislature deemed necessary for ensuring such freedom of trade. It punished severely various unlawful acts, e.g. assaults, menaces, etc., when used, speaking broadly, for the purpose of interfering with an individual’s right to carry on his business in such manner or to work on such terms as he pleased. It in effect limited the right of combination whenever it interfered with freedom of trade in labour. It was in each country a law which, though it did not make strikes unlawful, made it an extremely difficult matter to carry out an effective strike without the commission of crime. The likeness between the combination law of France and of England during the second stage of its development must indeed not be overpressed. No comparison can possibly be fair which does not take into account, among other considerations, the far greater power always possessed by a French than by an English Government. The authority of the Executive in France is even now not adequately realised by most Englishmen. All that can safely be asserted is that the French legislation of 1864 gave expression to ideas very similar to the beliefs which underlay the English Combination Act of 1825. It is at least a noticeable coincidence that Napoleon III., who in 1860, under the influence of Cobden, promoted free trade in goods, did, in fact, by the legislation of 1864, try to promote free trade in labour as understood by political economists.

Third Stage, 1884 to the end of the nineteenth century. The law of 1884 (loi du 21 mars 1884) includes much of what Englishmen understand by the combination law, but deals with a wider subject than the right of combination as exercised by employers or by workmen. Its object is to legalise all professional associations (syndicats professionnels)—that is, societies of whatever kind (not being trade partnerships, which have always been fully legal) for the promotion or the protection of the interest of any profession or trade (loi du 21 mars 1884, art. 3). It repeals, as regards all such professional associations, all earlier laws, e.g. Code Pénal, arts. 291–294, and 416, which might restrict their freedom of action. With the wider aspects of the law we are not concerned; what we need chiefly note is that trade unions, whether of masters or of men, come within the class of professional associations, and therefore profit by the law of 1884. The French combination law of to-day would appear, as far as an English lawyer can judge, to be much as follows: Strikes have been since 1864 in theory, and are now in practice, if properly conducted, entirely lawful proceedings. Trade unions are, like other professional associations (syndicats professionnels), lawful societies. The Code Pénal still punishes severely assaults, menaces, and the like, used as means for interfering with a man’s right to carry on his business or to work as he sees fit. The law, therefore, imposes heavy punishment upon conduct, which is illegal in itself, when used as a means for rendering a strike effective; but, otherwise, combinations between masters on the one side, or men on the other, for regulating the terms of the labour contract, are lawful, and a strike may be carried on without any necessity for breaking the law.

The likeness between the combination law of France since 1884 and the combination law of England since 1875 at once arrests attention. In France and in England the law is intended to allow to employers and employed as unlimited a right of combination as is compatible with the respect due to the freedom of individuals, whether masters or workmen. In each country strikes and lock-outs are lawful; in each country a trade union is a lawful society; in neither country does a trade union need for its legal existence the sanction of the Government. In each country masters and workmen stand, as regards their right to combine, on a complete equality; in each country the law allows combinations for the purpose of regulating the terms of the labour contract. Both in France and in England the law protects the liberty of individuals by imposing special penalties on any man guilty of certain unlawful acts, e.g. assault, intimidation, and the like, for the purpose of interfering with his neighbour’s freedom of action; in other words, the law of each country specially punishes acts of coercion likely to be committed in furtherance of a strike. (Compare Code Pénal, arts. 414, 415, and the Conspiracy and Protection of Property Act, 1875, s. 7.) The practical similarity between the combination law of each country is increased if we take into account the abolition, under modern French law, of restraints on the liberty of the press and on the right of public meeting which used to hamper attempts to carry out a strike, and if we at the same time remember that the celebrated law on associations (loi du 1erjuillet 1901) has very widely extended the right of association. We are naturally then led to the conclusion that the combination law of France and the combination law of England not only bear a great similarity to one another, but have at last reached exactly the same goal. This idea does not entirely harmonise with facts, but does contain a large element of truth.

II. In France as in England judicial legislation, or judicial interpretation which comes very near to legislation, modifies the combination law.

French Courts, it is true, are far less bound than our English tribunals by precedent, and different Courts will in France occasionally on one and the same question of principle pronounce inconsistent decisions. Still, French judges must from the nature of things interpret the law of 21st March 1884 in accordance with principle, and interpret it so as if possible to respect at once the rights of trade unions (syndicats) and the rights of individual masters or workmen. That they have tried to do this is manifest. It is also clear that they have had to deal with just the kind of questions which have perplexed our judges. They have been or may be called upon, to consider the questions whether a trade union can lawfully put on a black list, or boycott (mettre à l’index), a workman because he is not a member of a union; or, on the other hand, whether a master can lawfully discharge a workman because he is a member of a union? And French Courts apparently would in such cases at any rate protect individual freedom, and hold the action both of the union and of the employer to be unlawful, because it, in fact, interfered with the right of the workman to stand apart from, or to belong to, a trade union as he thought fit. Such decisions as these would greatly resemble in spirit some recent judgments pronounced by our Courts. What further appears to be clearly established in France is that in such cases the person aggrieved has a right of action for damages against the wrong-doer. (See Pic, pp. 232–235.)

III. Both in France and in England a severe combination law did not at any time fully attain its object.

Even during the first stage of the French combination law (1800–1864) trade combinations, certainly among employers, and in some cases among workmen, grew up and existed not only by the toleration, but with the approval of the Government. The administrative power of the Executive could do a good deal to mitigate the severity of the combination law, and it would rather seem that, at any rate during the second stage of the combination law (1864–1884), workmen, no less than employers, did in fact exercise the power of association with considerable freedom. To what extent this freedom may have been used, no English lawyer can pronounce with certainty. In England, at any rate, the severity of the combination law, even between 1800 and 1824–25, did not suppress the combined action of workmen. The Combination Act of 1825 certainly was not inconsistent with the existence both of trade unions and of strikes.

As to Differences.

I. At the beginning of the nineteenth century the combination law of France and the combination law of England, though they aimed at the same object, namely, the suppression of trade unions and strikes, rested upon essentially different principles.

The French combination law as it then existed was the work of men who were both lawyers and individualists. As lawyers they inherited from the traditions of the ancien régime the belief (characteristic of French law) that the right of association was dangerous to and ought to be strictly controlled by the authority of the state (Trouillot and Chapsal, Du Contrat d’Association, pp. 5–11). As individualists they were thoroughly imbued with the conviction, handed down to them by Turgot and other philosophic reformers, that corporations and, above all, trade guilds, and the like bodies, were hostile to the freedom and the interests of individuals, and that whilst the rights of individual citizens and the rights of the State deserve recognition, no account at all ought to be taken of the supposed interest or rights of corporate bodies (Pic, pp. 184–186, 211–213; Hauriou, pp. 100, 101). This conviction held by the lawyers who, either as revolutionary statesmen or as Napoleonic officials, remodelled the law of France, is well expressed in these sentences in the Report of Chapelier in favour of the law which bears his name.

“Il doit sans doute être permis à tous les citoyens de s’assembler; mais il ne doit pas être permis aux citoyens de certaines professions de s’assembler pour leurs prétendus intérêts communs. Il n’y a plus de corporation dans l’Etat. Il n’y a plus que l’intérêt particulier de chaque individu et l’intérêt général. Il n’est permis à personne d’inspirer aux citoyens un intérêt intermédiaire, de les séparer de la chose publique par un esprit de corporation.” [All citizens should enjoy the right of assembly, but citizens from certain professions who wish to congregate in support of claimed common interests should not be allowed to do so. There are no longer any guilds (corporations) in this nation. There is only each individual’s particular self-interest, and then the common interest. No one is permitted to rally the citizens to an intermediate cause, to distance them from the public interest by calling upon a guild spirit.]—Pic, Tràité Elémentaire de Législation, p. 212. [Editor’s note: The translation was added in the Liberty Fund edition.]

Hence, though the French combination law in its earliest stage treated strikes and trade unions with special severity, it nevertheless placed associations, whether temporary or permanent, either of masters or of workmen, in theory at least on the same footing as other professional societies (syndicats professionnels). All such societies were looked upon with jealousy or disapproval as intended to promote the interest of particular professions, and, therefore, presumably hostile to the interest of the public. The combination law of France, in short, though it no doubt pressed with special heaviness on such societies as trade unions, was, after all, inspired by a conviction that it was necessary to place strict limits on the general right of association. It thoroughly harmonised with French opinion of the day and with the general spirit of French law.

The authors of the Combination Act of 1800 were Tories. They were in no special sense individualists, but they accepted the ideas of the common law. From the common law they learned that men might lawfully combine together for the attainment of any object which was neither unlawful nor opposed to public interest; but from the common law they also learned that any combination in restraint of trade was opposed to the public interest, and might possibly make any man who took part in it a conspirator. They perceived, further, truly enough that a strike or a trade union did aim at the restraint of trade. They therefore, while by no means denying the common law right of Englishmen to combine together for any lawful purpose, passed an Act quite in harmony with the legislative opinion of the day, which aimed at the suppression of strikes and trade unions (see pp. 68–74, ante).

Hence, though the French combination law and the English combination law were at the early part of the nineteenth century equally severe, yet there has always been this difference between them. The French combination law has always rested on the general principle, till quite recently admitted by almost all Frenchmen, that the right of association ought to be very strictly controlled. Thus a trade union was treated as one of that large number of professional associations on all of which the Government ought to keep a watchful eye. The French combination law was severe, but it was hardly exceptional legislation. The English Combination Act of 1800, and to a certain extent the Combination Act of 1825, behind which (as already noted) stood the law of conspiracy, were specimens of exceptional legislation; for they rested on the idea that while all men ought in general to enjoy what one may term the right of association, yet that combinations of workmen and, in theory, of masters, since they tended towards the restraint of trade, ought to be the object of special watchfulness on the part of the Government, and generally to be the subject of special and peculiar legislation. Thus the combination law of England was opposed to the general spirit of the common law, and had from the first the defects which inevitably attach to all law-making of an exceptional character.

II. Till 1884 the existence of trade unions lay in France at the mercy of the Government (see Code Pénal, arts. 292–294). In England, even in 1800, the members of trade unions might be liable to punishment under the Combination Act of 1800, or under the law of conspiracy, and a trade union which was certainly a non-lawful, was possibly an unlawful society, but it could not be dissolved at the will of the Government. English workmen, like all other Englishmen, fell under the rule of law, not of arbitrary power.

III. The existing combination law of France differs in character from the existing combination law of England.

A comparison, no doubt, of the French law of 1884 (loi 21 mars 1884) with the Combination Act of 1875 and the Trade Union Acts 1871 and 1876 (see pp. 189–193, ante) suggests, as already pointed out, that the combination laws of France and of England are now of a fundamentally similar character. But this idea is erroneous, and leads us to overlook an essential difference which may be thus stated: The right of association has in France under the law of 1884 and the law of 1901, as well as under other laws, been vastly extended. By these changes trade combinations, whether in the shape of strikes or trade unions, have been made thoroughly legal; they have profited and were intended to profit by changes in the general law of the land which have favoured every kind of combined action. But trade combinations are not in France regulated by exceptional legislation. A trade union is a lawful society, but it is so in virtue not of any special legislation or of any special privilege, but because it falls within the body of professional associations, the position whereof is regulated by the loi du 21 mars 1884. In England, on the other hand, though as in France a strike is a lawful proceeding and a trade union is a lawful society, the position of men on strike and of a trade union is still to a certain extent exceptional. Thus a combination to do an act in contemplation or furtherance of a trade dispute between employers and workmen may escape from criminality, where a combination to do the same act for some other purpose may be a crime, and a trade union itself, though a legal society, stands in some respects in an exceptional situation (see pp. 189–193, ante). England has still a special combination law, whilst trade combinations are in France governed entirely, or all but entirely, by the general law of the land. The cause of this difference is seemingly to be found in a fact to which attention has already been directed. The law of France was at the beginning of the nineteenth century as much opposed as was the law of England to trade combinations, and in truth was more severe, but it was not in strictness exceptional legislation. The law of England in regard to trade combinations was not only severe but was also exceptional. The result is curious. The feeling has grown up in England which has apparently not grown up in France, that trade combinations for the regulation of labour must be treated exceptionally. Severity has given place to favouritism: the denial of equality has by a natural reaction led to the concession of, and promoted the demand for, privilege.

note ii.

The Ecclesiastical Commission

The rapidity which between 1836 and 1850 marked the reform of the Church Establishment (see pp. 243, 244, ante), though due in the main to a general improvement in the tone of public opinion, must be ascribed in part to the whole body of legislation of which the Ecclesiastical Commissioners Act, 1836, forms the best known and by far the most important portion.

This legislation, some part of which was of earlier and some of later date than 1836, produced the following (among other) effects:

(1) The efficiency of episcopal supervision was increased.

This resulted from the abolition of peculiar and anomalous jurisdictions and the rearrangement of diocesan areas, as well as the creation of the new sees of Manchester and Ripon. All this was effected soon after the Act of 1836. Some of the sees were vacant. Bishops of other sees waived their vested interests and assented to the proposed changes.

(2) The stringent provisions of the Pluralities Act, 1838, with regard to pluralities, non-residence, and so forth, tended to put an end to the abuses at which they were aimed, and worked quicker than might have been expected. The operation of the Act was delayed only by the vested interests of incumbents who were in possession at the date of the Act and had already taken advantage of the greater license of the law. Death, resignation, or preferment, each year diminished their number.

(3) A large increase was rapidly effected in church accommodation.

The Church Building Commissioners were created in 1818; by 1835 they had, by aid of parliamentary grants of £1,500,000 administered by them, and of private donations called forth to meet their allotments out of these grants, built 212 additional churches, which provided additional accommodation for 283,555 persons. The Incorporated Church Building Society was at the same date credited with having spent on the enlargement of churches, etc., £196,770. This was raised by private subscription, and, it was believed, caused the expenditure on the same objects, by persons locally interested, of £900,000. Provision was thus made for the church accommodation of 307,314 persons.

(4) The creation of new parochial districts and the endowment thereof, as also the improvement of the parsonage houses and of the incomes of underpaid incumbents, was carried on with vigour.

Between 1818 and 1850, the Church Building Commissioners created 764 new parishes or separate ecclesiastical districts. Between 1843 and 1850 the Ecclesiastical Commissioners had under the New Parishes Acts, 1843, 6 & 7 Vict. c. 37, and 1844, 7 & 8 Vict. c. 94, created, in addition, 228 ecclesiastical districts; and in order that their operation might be carried on with the greater rapidity, the Commissioners were permitted by the New Parishes Act, 1843, to borrow, and they did borrow, a sum of £600,000, which they were allowed to spend as income in anticipation of their own rapidly increasing income. As early, further, as 1850 the Commissioners’ funds had enabled them to provide, in the case of necessitous benefices, large capital sums for the provision of parsonage houses, and as much as £50,000 per annum (in addition to some £30,000 for the new districts above mentioned) for the perpetual augmentation of the incomes of under-paid incumbents.

(5) Much was done to reapportion and equalise the revenues of parochial benefices.

The Ecclesiastical Commissioners have never possessed any power of general reapportionment of such revenues, similar to that which was given them in relation to the revenues of bishoprics, but under several enactments, such as the Ecclesiastical Commissioners Act, 1840 (3 & 4 Vict. c. 113), s. 74, extended by the Augmentation of Benefices Act, 1854, s. 8, the Ecclesiastical Leasing Act, 1842, s. 13 (and see 21 & 22 Vict. c. 57, s. 10), they had been enabled, with the required consents of bishops and patrons, to do a great deal indirectly to equalise the incomes of benefices, and their action in increasing the incomes of necessitous benefices has all told in the same direction. To this add, that under the Augmentation of Benefices Act, 1831, the incumbent of a mother parish is able, with the consent of his bishop and patron, to charge the revenues thereof in favour of the incumbent of a daughter parish formed wholly or partly out of the mother parish. Legislation, in fact, had by 1850 done a good deal, though it has since done more, towards the equitable apportionment of parochial revenues, and towards raising the income of the poorest class of incumbents. Here, as elsewhere, one reform added to the effect of another. The want, for example, of parsonage houses, and the under-payment of incumbents, was an excuse, or even at times a justification, for pluralism or non-residence. As parsonage houses were built and something done towards equalising clerical incomes, and thus alleviating the poverty of the poorer clergy, the excuses for pluralism and non-residence lost their force.

The details of a reform as rapid as it was effective cannot be here pursued further, but they deserve consideration since they enforce two conclusions directly bearing on the relation between law and opinion.

First. The rapid internal reform of the Established Church between 1830 and 1850 owed both its origin and its effective working to the active support it derived from the moral opinion of the day.

Secondly. Public opinion was, in this instance, unmistakably affected by legislation of which public opinion was itself the author. When the law had been strenuously directed towards the putting down of pluralism and non-residence, good men began to perceive that practices which they had through habit come to look upon with easy tolerance were in reality unbearable abuses.

note iii.

University Tests

(A)

Movement for Abolition from 1772.1

1772. Feathers’ Tavern petition rejected in the House of Commons by 217 to 71, but followed by the substitution, at Cambridge, of a declaration of bonâ fide church membership for the subscription to the three Articles of the 36th Canon.

1803. Oxford Examination Statute enacted by Convocation, whereby an examination in the Thirty-nine Articles was added to the existing conditions of a B.A. degree.

1834. Petition from 63 members of the Cambridge Senate, followed by long debates in both Houses, and counter-petitions.

Mr. G. Wood’s Bill, to open the University to Dissenting undergraduates, and to abolish the restriction of degrees to Churchmen, passed the House of Commons by majorities of 185 to 44, 371 to 147, and 164 to 75; but was rejected in the Lords by 187 to 85.

1835. Attempt by Lord Radnor in the Peers to abolish subscriptions on matriculation, defeated by 163 to 57. The Heads of Houses at Oxford had recommended this alteration, but it was rejected by Convocation.

Abolition of Unnecessary Oaths Act passed, clause 8 giving power to the Universities to substitute declarations, in certain cases, for oaths.

1836. Substitution accordingly at Cambridge of declarations for oaths of obedience to statutes, and such like.

1838. Similar substitution at Oxford.

1843. Mr. James Heywood’s petition presented by Mr. Christie, and Bill moved to abolish certain oaths and subscriptions, and extend education to persons not members of the Church of England. Rejected by 175 to 105. Attempts were made in the two succeeding years to revive the question, but without success.

1850. Mr. Heywood’s motion for a Commission to inquire into the state of the Universities and Colleges carried by 160 to 138, after six nights’ debate, with the consent of the Ministry, and issue of Commissions accordingly.

1852. Commissions reported.

1854. Oxford University Act (17 & 18 Vict. c. 81) passed, abolishing all religious tests on matriculation, or on taking an ordinary bachelor’s degree.

1856. Cambridge University Act (19 & 20 Vict. c. 88) passed, throwing open all ordinary bachelor’s degrees, all endowments tenable by undergraduates, and the nominal title of M.A. By this Act the declaration of bonâ fide church membership received for the first time a legislative sanction, and was employed to keep the Nonconforming M.A.s out of the senate and the parliamentary constituency.

1860, 1861. The Senior Wrangler for two years in succession prevented from sitting for a fellowship at Cambridge by the restrictions in the Act of Uniformity.

1862. Petition from 74 Fellows of Colleges at Cambridge actually resident, praying for the repeal of the “Conformity to the Liturgy” clause in that Act, on the ground of injury to the University.

1863. Bill introduced by Mr. Bouverie to give effect to the prayer of the petitioners, and read a first time by 157 to 135.

Petition from 106 of the Heads, Professors, and present and former Fellows of Colleges and College Tutors at Oxford, alleging the futility and pernicious effect of the restrictive system, and praying for the opening of degrees.

1864. Mr. Bouverie’s Bill rejected by 157 to 101.

Bill introduced by Mr. Dodson to place degrees at Oxford on the same footing as at Cambridge; read a second time by 211 to 189, but defeated finally by 173 to 171.

1865. Bill introduced by Mr. Goschen to throw open degrees at Oxford, and read a second time by 206 to 190. Degrees in Divinity were excepted from its operation.

1866. Mr. Bouverie’s Uniformity Act Amendment Bill (208 to 186) and Mr. Coleridge’s Oxford University Tests Bill (217 to 103) read a second time in the House of Commons. An attempt to reduce the latter to the dimensions of “the Cambridge compromise” was successfully resisted in Committee.

1867. Mr. Coleridge’s Bill was extended in Committee to Cambridge (253 to 166), and passed through the House of Commons without a division; but was defeated in the Lords by a large majority. Mr. Bouverie’s Bill read a second time by 200 to 156, but lost on a third reading by 41 to 34, at the very end of an exhausting session.

1868. The two Bills amalgamated, and made complete by the insertion in the repealing schedule of certain special Acts disqualifying Roman Catholics. The Bill completely enfranchised the University with the exception of degrees in Divinity; which exception is due to the unfortunate condition of Holy Orders attached to them. As to the Colleges, its action was permissive; it removed the impediments to free election imposed by the State; and these were in some cases the only legal restriction; but in others a new statute, framed by the College with the consent of the Queen in Council, and (in some) of the visitor, would have been necessary to render the removal effectual.

This Bill, though read a second time by 198 to 140, did not reach the House of Lords.

The Universities Tests Act, 1871, 34 Vict. c. 26, in effect abolished tests in the Universities of Oxford and Cambridge;2 it relieved persons taking lay academical degrees, or taking or holding lay academical or collegiate offices, from being required to subscribe any article or formulary of faith, or to make any declaration of religious belief, or profession (sec. 3).

But the general effect of the Act was subject to several restrictions.

(1) It did not apply to degrees or professorships of divinity.

(2) It did not open to any layman, or any person not a member of the Church of England, any office which was, under any Act of Parliament, or University or collegiate statute in force at the time of the passing of the Act, i.e. on 16th July 1871, restricted to persons in holy orders, or affected the person appointed thereto with the obligation to take orders.

(3) It did not apply to any college not existing on the 16th July 1871, i.e. it did not apply to colleges created after 16th July 1871. (See R. v. Hertford College (1878), 3 Q.B.D. (C.A.), 693.)

The Universities of Oxford and Cambridge Act, 1877, 40 & 41 Vict. c. 48, created commissions for carrying out various reforms in the Universities, and especially for the modification of college statutes. The Act did not directly affect religious tests, but it in fact led to the abolition of clerical restrictions on the tenure of almost all headships and fellowships of colleges.

(B)

Observations.

(1) The nationalisation of the English Universities has, like most other great reforms, been carried out with extraordinary slowness (see pp. 21–24, ante). The presentation of the Feathers’ Tavern Petition, 1772, is separated from the Universities Tests Act, 1871, by a year less, and from the Universities of Oxford and Cambridge Act, 1877, by five years more, than a century.

(2) Delay in the execution of a necessary reform has, as in other instances, been here equivalent to a change in the character and the effects of the reform itself (see pp. 28–30, ante). The petitioners of 1772 aimed at a wider and a different kind of revolution from the change accomplished either by the Liberals who carried the Universities Tests Act, 1871, or by the statesmen, whether Conservatives or Liberals, who planned and carried the Universities of Oxford and Cambridge Act, 1877. Nor is it possible to doubt that the opening of the national universities to Nonconformists in 1834 would certainly have been a different thing from the tardy nationalisation of the universities in 1871.

(3) This nationalisation is still incomplete.3 The Established Church still, as a matter of fact, occupies at Oxford and Cambridge a position of pre-eminence and predominance (see p. 250, ante). The correctness of this statement may possibly, I know, be disputed, but seems to me, after the most careful consideration, undeniable. If none but Roman Catholic priests had access to the university pulpits; if no one but a Roman Catholic could at Oxford or Cambridge take a degree in divinity; if in both universities every theological professorship were in fact held, and almost every theological professorship were tenable only by a Roman Catholic, and at Oxford only by a Roman Catholic priest; if, whilst a Roman Catholic might be the head of any college and many Roman Catholics occupied that position, the headships of some two, or possibly three colleges were restricted to priests of the Church of Rome; if in every college chapel Roman Catholic services, and Roman Catholic services alone, were, during term, daily celebrated; if, to sum up the whole matter, the Church of Rome possessed by law at Oxford and at Cambridge the privileges, and no more than the privileges, now in fact retained by the Church of England, could any man for a moment deny that Roman Catholicism did, in fact, in our national universities hold a position of pre-eminence? But if this question contains its own answer, how is it possible to argue that the Church of England is not at the present moment predominant in the Universities both of Oxford and of Cambridge? It is, of course, arguable that a church, acknowledged with the assent of the country to be the Church of the nation, must hold a position of superiority at the national universities. With this point, be it noted, we are here in no way concerned: my only wish is to insist upon the fact that, whether wisely or unwisely, whether rightly or wrongly, the nationalisation of the English universities is still left incomplete.

note iv.

Judge-made Law

(See pp. 257–259, ante; Pollock, Essays in Jurisprudence and Ethics, p. 237, and First Book of Jurisprudence (2nd ed.), Pt. ii. c. vi.)

A.

Origin of Judge-made Law

The existence of judge-made law—that is, of laws or rules created by the Courts of a country in the course of deciding definite cases—arises from the general acceptance in such country of two ideas.

The one is that a judge or a Court—the two expressions may be here treated as equivalent—when deciding any case must act, not as an arbitrator, but strictly as a judge; or that it is a judge’s business to determine not what may be fair as between A and X in a given case, but what, according to some definite principle of law, are the respective rights of A and X. Hence it follows that every Court in deciding a case must tacitly, or expressly, apply to it some definite principle which is often indeed so clearly known that no special mention need be made of it, but which may be difficult to discover; and when this is so the Court must lay down the rule which guides its decision.

The other idea is that a Court or a judge must follow precedents, by which expression is really meant that a Court having once decided a particular case on a given principle (such e.g. as that an employer is liable to make compensation for damage arising from the negligence of his servants in the course of their employment) must decide all really similar cases in accordance with the same principle, or, to put the same thing in other words, that a Court is bound, as the expression goes, by its own judgments.

One may add that from this very respect for precedents it logically follows that when the judgments of an inferior Court are on a matter of law set aside (i.e. are either reversed or overruled) by a superior Court, the inferior Court must henceforth follow the judgment of, i.e. the principle laid down by the superior Court, and that a final Court of Appeal, such as is in England the House of Lords, is bound by its own judgments, i.e. must apply the principle laid down by itself for the decision of a particular case to all similar cases, until and unless the principle itself is declared to be no longer law by the Legislature, i.e. in England by an Act of Parliament.

Now these two ideas—namely, that Courts must act as judges, not as arbitrators, and that the duty of a Court is to follow precedents—though to a limited extent admitted in all civilised countries, have obtained more complete acceptance in England than in any continental, and perhaps in any other existing, State. For English Courts, and it may be said the English Legislature, have now for a length of time accepted not only these two fundamental ideas, but all the consequences that follow from them; and the best way to understand the nature of these fundamental ideas, and the way in which they actually produce judicial legislation, is to examine one or two examples of the steps by which English Courts have even in recent times created rules which, as they really have the force of law and are made by the Courts, may rightly be termed judge-made law.

Not many years have passed since A brought an action against X and Y, directors of a company, for damage caused to him by a fraudulent misrepresentation published by them in a prospectus of the company. The statement published was false. X and Y, however, thought the statement to be true, but their belief in its truth was due to their own gross negligence in omitting to examine whether it was true or not. The following question of principle then called for decision: Could gross negligence be treated as equivalent to fraud? The uncertainty of the law may be seen in the disagreement of eminent judges. A judge of the Chancery Division held that negligence was not the same thing as fraud—that carelessness, in other words, was not mendacity (Peek v. Derry (1887), 37 Ch. D. 541). The Court of Appeal reversed his decision, and held that gross negligence was under the circumstances equivalent to fraud (ibid. at p. 563). But the House of Lords reversed the judgment of the Court of Appeal, and held with the Court of first instance that carelessness is not the same thing as deceit (Derry v. Peek (1889), 14 App. Cas. 337). And this principle, which the House of Lords could not itself depart from, became in 1889 part of the law of England, and was loyally and fully accepted by the very judges of the Court of Appeal who had held a different view of the law. It is, further, at this very moment a rule of English law, except in so far as it has been modified, as regards directors of companies, by the Directors’ Liability Act, 1890, 53 & 54 Vict. c. 64. This case is worth careful study. We here see every step in the formation of judge-made law. That X and Y had acted with blamable carelessness was clear; but a judge had nothing to do with this point: his duty was to determine whether on principle their negligence rendered them guilty of fraud. As a matter of fact, we must say that, where good judges differed, the question of principle was doubtful. The Court of first instance laid down one law, the Court of Appeal another, and the House of Lords, agreeing with the Court of first instance, at last established a rule to which every Court, including the House of Lords itself, was bound to adhere, i.e. which became the law of the land, and this law was finally modified by the only power which can change every law—namely, the Imperial Parliament.

Just about fifty years ago the Court of Queen’s Bench decided what was then assuredly a doubtful point, that where X induced N to break N’s contract with A, the latter had a right to recover damages from X (Lumley v. Gye (1853), 2 E. & B. 216). The validity of this rule, and certainly its extent, remained open to doubt. Some twenty-eight years later it was affirmed and somewhat extended by Bowen v. Hall (1881), 6 Q.B.D. (C.A.) 333. It has of recent years been distinctly affirmed both by the Court of Appeal (Temperton v. Russell (1893), 1 Q.B. (C.A.), 715), and by the House of Lords (Quinn v. Leathem (1901), A.C. 495).

Fifty years ago, again, it was doubtful whether, if X had entered into a contract with A, and before the time for performing the contract had arrived, informed A that he would not perform it, A had a right then and there to sue X for breach of contract (Hochster v. Delatour (1853), 2 E. & B. 678). Eminent judges were here again in some doubt. The law was in truth uncertain. But later decisions (Frost v. Knight (1872), L.R. 7 Ex. 111 (Ex. Ch.); Mersey Steel & Iron Co. v. Naylor (1884), 9 App. Cas. 434) have affirmed the principle of Hochster v. Delatour; the Courts or the judges have then in reality made it a law.

It would be difficult to find a better instance of judge-made law than the rule laid down by the House of Lords itself, that the House is bound by its own decisions (London Street Tramways Co. v. London County Council (1898), A.C. 375; R. v. Millis (1844), 10 Cl. & F. 534; Beamish v. Beamish (1861), 9 H.L.C. 274). Some competent critics, indeed, have argued that this rule or law has only of recent years been firmly established. If this view be correct (which may be doubtful) it only makes the establishment of the rule with which we are dealing all the more striking as an example of legislative authority exerted by the final Court of Appeal. The rule, however, is in any case one towards which the decisions of the House of Lords and the dicta of eminent lawyers have pointed. It is in strict conformity with the respect for precedent which is the parent of judge-made law. It is in any case now part of the law of the land, and therefore forms an impressive instance of a law indirectly though surely enacted by the final Court of Appeal. These illustrations of such judicial law-making may suffice. It would be easy to multiply them; they sufficiently, however, prove the conclusion on which it is here necessary to insist—that the legislative action of the judges is the necessary consequence of ideas which underlie our whole judicial system.

B.

Amount of Judge-made Law

It is hard to give to any person not versed in English law an adequate notion of the extent to which our law is the creation of the Courts (see pp. 257–259, ante). As already stated, by far the greater part of the law of contract—one might almost say the whole of the law of torts, all the rules or doctrines of equity, several outlying branches of the law—such, for example, as the principles embraced under the head of the conflict of laws—either originally were, or still are, to be deduced from judicial decisions or, what is in reality the same thing, from the doctrines of writers such as Coke, whose dicta are accepted by the Courts as law. Statutes themselves, though manifestly the work of Parliament, often receive more than half their meaning from judicial decisions. And this holds good not only of ancient, but sometimes also of modern Acts of Parliament.

It is at least a curious fact, that by an odd paradox our rules of procedure, which seem from their nature to belong naturally to the sphere of judicial legislation, derive their ultimate authority at the present day from the Judicature Acts. But here, as elsewhere, exceptio probat regulam. No doubt the authority of the Rules of Court is derived from the Judicature Acts, but Parliament has most wisely, under these Acts, given to the judges direct, though admittedly subordinate, legislative authority. The Rules of Court are framed by judges, though they require for their validity the tacit sanction of Parliament; and these Rules of Court are as truly laws as any part of the Judicature Acts under which they are made. They decide matters of great importance. If they deal only with procedure, it is absolutely impossible to handle procedure freely without immediately trenching upon substantive law. Where there is no remedy there is no right. To give a remedy is to confer a right. Thus the rules which determine the limits of the High Court’s jurisdiction do in truth often determine how far any person has a remedy against, e.g. a breaker of a contract or a wrong-doer who is not in England—i.e. they in reality, though not in form, determine the effective rights of A against X, who is not in England, in respect of a contract broken or a wrong committed by X.

It is a common notion with us, countenanced by the general expressions of French writers of authority, that judicial legislation is unknown to, and indeed cannot exist in countries such as France, where the law is reduced to the form of a Code (see Berthélemy, Droit Administratif, p. 12). But this idea, if accepted too absolutely, is misleading. True it is that in countries where precedent is of less weight than in England, where there are several independent Courts of Appeal, where there exists no one final Court of Appeal (in the sense in which we use that term), and where the Executive has a good deal to do with the interpretation of the law, the sphere of judicial legislation is less extensive than in England; but it is certainly not the case that in modern France, at any rate, you will find no judge-made law. Precedent (la jurisprudence) tells with French judges, and wherever precedent has weight there one will always find case-law, which, in the modern world, is almost necessarily judge-made law. We have already seen (see pp. 335–336, ante) that the French combination law has been expounded and modified by the judges (see Pic, pp. 198–201) in much the same way as the combination law of England has been explained and modified by our Courts. Judicial decisions (la jurisprudence) have extended the property rights of a married woman under the Code (see Le Code Civil, 1804–1904; Livre du Centenaire, pp. 287–289). And generally, if we are to believe French authorities, reported judgments have in France told considerably upon the whole character of the Code (ibid. pp. 175–204). What is less obvious at first, but on investigation turns out even more certain, is that the whole of French droit administratif, which is gradually being transformed into a regular part of French law, is wholly or almost wholly based upon case law; it no more depends upon any law passed by the French Legislature than did equity in the time of Charles II. depend upon any Act of Parliament (see Dicey, Law of the Constitution, 7th ed., pp. 369, 370).

C.

Characteristics of Judge-made Law

(1) Judge-made law is real law, though made under the form of, and often described, by judges no less than by jurists, as the mere interpretation of law.

Whoever fairly considers how large are the masses of English law for which no other authority than judicial decisions or reported cases can be found, will easily acquiesce in the statement that law made by the judges is as truly law as are laws made by Parliament. In what sense, if at all, the function of the judges can be described as merely interpretation of the law is considered in a later part of this Note.

(2) Judge-made law is subject to certain limitations.

It cannot openly declare a new principle of law: it must always take the form of a deduction from some legal principle whereof the validity is admitted, or of the application or interpretation of some statutory enactment.

It cannot override statute law.

The Courts may, by a process of interpretation, indirectly limit or possibly extend the operation of a statute, but they cannot set a statute aside. Nor have they in England ever adopted the doctrine which exists, one is told, in Scotland, that a statute may become obsolete by disuse.

It cannot from its very nature override any established principle of judge-made law.

A superior Court may, of course, overrule any principle of law that derives its authority merely from the decisions of an inferior Court. Thus the House of Lords may, and occasionally has, set aside or treated as not being in reality law a rule which, though of considerable antiquity and long received as law, has not been confirmed by the sanction of the House itself; and the Court of Appeal is not bound to follow principles in favour of which nothing can be cited but judgments of the King’s Bench Division or of the older Courts of which the King’s Bench Division is the successor. But no Court—not even the House of Lords—will directly invalidate a rule sanctioned by that House.

Even this statement must be taken subject to some slight limitation. The House will occasionally limit the operation of a well-established legal rule either by subtle distinctions or by “refusing to carry a rule further,” as the expression goes. By this is really meant that the House, while recognising the validity of some well-recognised legal principle, and applying it to cases which indubitably fall within it, will not apply it to other cases which can be brought within it only by some process of logical argument. Nor is there anything in this course inconsistent with sound logic and good sense. It is a mere recognition of the undoubted fact that a sound principle may, even as expressed in authoritative judgments, cover cases to which it was never meant to apply, and which were not before the mind of the Court which enunciated the principle. When this is so, a Court of final appeal rightly gives effect to the real meaning rather than to the mere words of a rule of law. This, at any rate, is the way in which our Courts sometimes deal with rules resting upon judicial decisions. The freedom with which they interpret such rules is a virtue. What is to be regretted is that our Courts have felt themselves less at liberty, in modern times at least, with regard to the interpretation of statutes, and are apt to pay more attention to the words than to the spirit of an Act of Parliament.

(3) The incapacity of the Courts to change a rule on which they themselves have conferred the character of law leads to the important result that the legislative powers of the Courts, unlike in this to the authority of Parliament, become gradually in particular spheres exhausted.

Their capacity, for example, to carry out further reforms in regard to the property rights of women had early in the nineteenth century all but reached its final limit (see pp. 267–273, ante). Before 1870 it was exhausted. The field for innovation or reform was filled or blocked by rules which, whether created by statute or by judicial legislation, neither the Court of Chancery nor any other Court had the power to modify or change; and what happened in this particular instance must always happen whenever a given department of law has been made the subject of much legislation, whether parliamentary or judicial; the way towards change or reform has got blocked by laws which, under the English Constitution, can be changed or amended only by the sovereign authority of Parliament. From this fact it might be inferred that the sphere of judicial legislation must gradually become narrower and narrower, and judicial legislation itself come at last completely to an end. This conclusion contains this amount of truth, that no modern judges can mould the law anything like as freely as did their predecessors some centuries ago. No Lord Chief-Justice of to-day could occupy anything like the position of Coke, or carry out reforms such as were achieved or attempted by Lord Mansfield. There are whole departments of law which no longer afford a field for judicial legislation. But for all this the judicial authority of the Bench, though subject to restriction, is not likely to be reduced to nothing. The complexity of modern life, in the first place, produces new combinations of circumstances, which, in so far as they give rise to legal disputes, bring before our tribunals what are in reality new cases—that is, cases which must be determined either by applying to their solution some new principle, or, what more often happens, by the extension of some old principle which is found to be really applicable. The interpretation, in the second place, of statutes will always exercise the ingenuity of our judges. In either case there is room for the exercise of what is in truth judicial legislation.

(4) Judge-made law is apt to be hypothetical law.

A clear rule, supported by a judgment of the House of Lords, is in reality as much a law as any Act of Parliament, and this holds a fortiori true of a rule supported by many judgments both of the House of Lords and of other Courts. But there may well be rules established by the judgments, say, of the King’s Bench, of the old Court of Exchequer Chamber, or of the present Court of Appeal, which have been generally acquiesced in, but have never been brought before the House of Lords. This was till quite recently—to recur to an illustration already used—the state of things with regard to the rule that A had a right of action against X, who induced N to break his contract with A. Till a year or two ago it depended for its authority wholly upon a judgment of the Queen’s Bench, reinforced by a later decision of the Queen’s Bench Division. Was it good law or not? Not the most learned of lawyers could give an absolutely conclusive reply; no one could in reality say more than that the rule in question was hypothetical law. And a good deal of such hypothetical law is, it should be observed, always in existence, and may continue to exist for a length of time. For many years it was a matter of real uncertainty whether the Divorce Court had jurisdiction to divorce persons permanently resident though not domiciled in England. A decision of the Court of Appeal showed that such jurisdiction might exist (Niboyet v. Niboyet (1878), 4 P.D. (C.A.) 1). But many of the best lawyers entertained grave doubts whether the decision of the Court of Appeal was good law. It was in truth hypothetical law. The doubts of critics have at last been justified. The decision of the Court of Appeal in Niboyet v. Niboyet has been virtually overruled, and we now know with something like certainty that domicil must be taken to be in England the basis of divorce jurisdiction. This tendency of judicial legislation to foster the existence of hypothetical law is its worst defect. The public, it may be suggested, would gain a good deal if a power were conferred upon the House of Lords of calling up for the House’s decision (say on the motion of the Attorney-General, and, of course, at the public expense) cases determined by the Court of Appeal, and involving the determination of an important principle of law which had never come before the House of Lords.

D.

Objections to or Criticisms on the theory of Judge-made Law

The view of judge-made law here propounded is exposed to three different objections or criticisms.

First objection. There is no such thing, it is sometimes objected as judge-made law; Courts or judges are never the creators of law; they always act, as long at any rate as they discharge their proper duty, as interpreters of the law and not as legislators; the law which they interpret may be statute law, or it may be a rule of law created by custom, but in any case it exists and is known to the people of a given country before the judges undertake to interpret it. The validity, it is added, of this objection is proved by the fact that Courts invariably profess to explain a law which already exists and needs only explanation.

Now, in replying to this objection, which may be put in various forms, it is well to make one or two admissions. If the critic means only that the very elastic term “interpretation” may be so extended as to cover everything which is done by an English judge when performing his judicial duty, it may be admitted that this is so. A mere dispute about the right use of a word which easily admits of almost indefinite extension is an idle piece of logomachy which it is wisdom to avoid. If, further, it be meant that in many cases a judge or a Court does act merely as an explainer of the law, this again may easily be conceded. Nor can it be disputed that the explanation of a rule may, especially where the rule is followed as a precedent, so easily glide into the extension or the laying down of the rule, or in effect into legislation, that the line which divides the one from the other can often not be distinctly drawn. And to these admissions may be added the further concession, that in modern times, when an immense number of fixed rules established either by Parliament or by the Courts are in existence, it rarely happens that a judge, consciously at any rate, does more than expound what one may well call established legal principles. But all these concessions do not get rid of the fact that a great deal of law has been, and a good deal still is from time to time, the result of, and in effect created by, the action of the Courts. The very rules which modern judges only interpret or explain can in many cases be drawn only from the judgments of their predecessors. A judge who applies to a particular case the principle that a promise made without any consideration, or in popular language a promise for which the promisor gets no advantage, is void, certainly may do no more than apply or interpret a well-known legal principle. But the principle itself does not originate in any statute. The long and intricate process by which it was thought out and established affords a singular instance of judicial legislation. When a judge applies the words of a statute to a particular case he may well do no more than follow a rule which he in no way creates, but, as the history of all our older statutes and of many of our modern statutes shows, judges who interpret statutes and whose interpretation become precedents in reality legislate. To say that all interpretation is legislation is, no doubt, to maintain a paradox. But this paradox comes nearer the truth than the contention that judicial law-making is always in reality interpretation. Nor does our objector gain anything by insisting that judge-made law often is what it assuredly is not always, the mere recognition or interpretation of custom. The same thing may be said of many statutes. The motives which induce either parliaments or judges to treat certain customs as laws do not invalidate the fact that when parliaments or judges give effect to a custom they legislate. Here again it is well to avoid arguments turning mainly upon the meaning of words. Whether and in what sense custom is to be considered the source of law, or whether it be or be not true that judge-made law or judicial legislation are expressions open to criticism, are questions which a reasonable man may well treat with some indifference. If an objector admits, what with regard to English law he can hardly dispute, that great portions of it are recorded only in and derive their authority from the judgments of the Courts, the objection that there is no such thing as judge-made law has received a substantial answer.

Second objection. Judges, it has sometimes been maintained, have undoubtedly in fact made law, but have accomplished their end by the fraudulent pretence that they were interpreting a law which, without any moral claim to do so, they were in fact creating.

This contention, that laws are the result of judicial frauds is nearly akin to the delusion that religions are the growth of priestly imposture. Both of these notions are ideas belonging to an obsolete mode of thought. In neither case do they deserve careful confutation. The notion that judges pretended to expound the laws which they really made is based upon ignorance of the fact that fiction is not fraud, and that legal fictions are the natural product of certain social and intellectual conditions. Nor, be it added, has the progress of civilisation as yet enabled us to get rid entirely of something very like legal fictions, or at any rate of the tendency in some departments of law to confuse facts with fictions. This habit is still very traceable in the field of constitutional law. It is convenient—perhaps necessary—to consider the will of the majority as the will of the whole nation. But it is perfectly clear that this identification, whatever its convenience or its necessity, is a political fiction. What, again, are we to say about the powers ascribed by English constitutionalists to the King? In some instances, no doubt, the fiction is a mere figure of speech. Few, one trusts, are the men who seriously believe that the millions raised by taxes are granted to or spent by the King. Most persons probably know that the King himself takes no share in the administration of justice. But what part does he or can he take in the appointment of ministers, or in moulding the policy of the country? The wisest constitutionalist is the man who on such matters keeps a judicious silence. One may conjecture that those who minimise and those who “maximise” (if we may use a term invented, like minimise, by Bentham) the action of the Crown are in equal danger of error. Fiction and fact are here probably blended. The artificial ascription of almost unlimited power to the King is a means of concealing the fact that powers which are not unlimited are indefinite.

Third objection. The Courts, it is sometimes said and still more often thought, though they certainly do legislate, never ought to legislate at all.

This is an idea constantly put forward by persons who, rightly or wrongly, object to some principle established by judicial decisions. Such critics urge not only that the rule which they condemn is a bad one, on which point they may perfectly well be in the right, but also that the rule, whether wise or unwise, whether right or wrong, ought never to have been laid down at all by the Courts, and this on the ground that it is the business of the Courts to decide cases and not to make laws.

The answer to this line of criticism is that the person who pursues it has in no case a right to blame the judges. His argument may mean that the whole English judicial system, with its respect for precedent, is a bad one. So be it. But, even if this be so, English judges cannot be blamed for acting in accordance with a system which they are appointed to administer. Our objector’s argument, on the other hand, may mean that, the English system being what it is, judges can, if they choose to do so, always avoid judicial legislation. But, if this be the critic’s meaning, he distinctly ascribes to judges a liberty of choice which they do not in fact possess. To simplify the matter, let us confine our attention to the House of Lords. A case comes before the House which can only be decided by either affirming or denying the application or validity of some principle. But either affirmation or denial will equally establish a precedent, or in other words, a legally binding rule or law. How under this state of things can the House by any possibility avoid judicial legislation? Return to the case already noted of Derry v. Peek. The question to be determined was, whether gross negligence when unaccompanied by deceit could be treated as equivalent to fraud. There was much to be said in favour of an affirmative answer, and the Court of Appeal said it with great force. There was much also to be said in favour of a negative answer, and this, too, was said by Lord Herschell and other eminent lawyers with the greatest vigour. The House of Lords did, as a matter of fact, give a negative reply, and laid down the law that carelessness was a different thing from lying. It is not necessary to decide or to intimate which of two possible rules was the more logical. All that need here be contended is that the House was compelled to lay down one rule or the other, and that whichever rule was laid down would in effect become law. In this case, as in a thousand others, the House, though acting as a Court, was compelled to legislate; and what is true of the House of Lords applies in a measure to every Court throughout the land. A critic who objects to the rule, or in reality the law established by a judgment of the House of Lords may maintain that the House committed an error. He may maintain that the rule which the Lords established was not a logical deduction from the principles they intended to follow, or that the rule, though logical, was inexpedient, or, if he pleases, that the rule was both illogical and inexpedient. But if he has mastered the nature of judge-made law he will hardly commit himself to the contention that the House of Lords was to blame simply because its judgment established a fixed rule of law. This was a result over which the House had no control, and for which, therefore, it deserved neither praise nor blame.

note v.

Proposed Collectivist Legislation of 1905*

At the moment when the last pages of this book are passing through the press four measures have already been received with favour by the House of Commons. They are the Trades Dispute Bill, the Aliens Bill, the Unemployed Workmen Bill, and the Relief (School Children) Order.

These proposals suggest more than one observation strictly germane to the subject of these lectures.

First. They mark the distance which divides the democratic collectivism of to-day from the Benthamite liberalism of 1830–1870. The Trades Dispute Bill and the Aliens Bill are inroads upon individual liberty as understood by the Liberals say of fifty years ago; the Unemployed Workmen Bill and the Relief (School Children) Order strike a blow at the foundations of the great Benthamite reform embodied in the new poor law of 1834.

Second. A legislative revolution is clearly due to a change of public opinion. If any opponent imputes it—which is certainly not my intention—to the selfishness or recklessness of politicians, and asserts, unfairly enough, that English statesmen have no other desire than to please the electors, he may rightly be asked why it is that the electors themselves approve in 1905 of laws which they would not have approved of in 1875 or 1885? He can give but one answer—“a change of public opinion.” But it must in fairness be remembered that political leaders are themselves affected by alterations in the moral or social atmosphere which tell upon their followers, and that there is no reason to suppose that English politicians are either more or less rash or selfish in 1905 than in 1875.

Third. A revolution of opinion which is going on before our eyes is assuredly not in the main caused by the strength of argument. The arguments for and against say the Unemployed Workmen Bill are the same which must have been employed in favour of or in opposition to a similar measure in 1875. But to-day the weight of argument is thought by thousands of Englishmen to tell conclusively for the acceptance of the measure, whilst thirty, or twenty, or even ten years ago the weight of argument would have been thought to tell conclusively for its rejection. Opinion has been changed, not by argument, but by circumstances.

Fourth. The rapidity with which collectivist legislation now makes way excites astonishment. It need surprise no one who thinks it worth while to study, and accepts the conclusions arrived at in these lectures. The socialistic laws of to-day are not to be ascribed to any sudden change. They are forced on by a current of opinion which has been gathering force for at least forty years.

[1. ]Use has been made, with permission, of Note M to Sir George Young’s pamphlet on University Tests.

[2. ]As also of Durham.

[3. ]See letter of H. Sidgwick, April 25, 1898, in A Memoir, pp. 564, 565. [Editor’s note: This footnote was added in the second edition.]

[* ][Editor’s note: Note V was included in the 1905 edition but was deleted in the 1914 edition.]