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Dicey on the Rise of Legal Collectivism in the 20thC

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Source: From Dicey's Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (London: Macmillan, 1919). 2nd edition.

Editor: In the 2nd edition of Dicey's book, which began as a series of lectures he gave at Harvard Law School in 1898, he returns to his them of describing the rise of collectivism in English law and updates it for the first 2 decades of the 20th century.

INTRODUCTION TO THE SECOND EDITION

Aim of Introduction

Thirteen years have passed since the nineteenth century came to an end. In England they have been marked by important legislation of a novel character. The aim of this Introduction is to trace the connection, during these opening years of the twentieth century, between the development of English law and the course of English opinion. The task is one of special difficulty. An author who tried to explain the relation between law and opinion during the nineteenth century undertook to a certain extent the work of an historian, and yet was freed from many of the impediments which often beset historical inquiry. His duty was to draw correct inferences from admitted facts, or at any rate from facts easily to be discovered. They could be ascertained by a careful study of the Statute Book and of legal decisions, and also of the letters and memoirs written by statesmen, teachers, or writers who had affected the legal doctrines of their time. Then, too, such an author, writing of a time not long past, was almost delivered from the difficulty with which an historian of eras removed by the lapse of many years from his own time often struggles in vain, the difficulty, namely, of understanding the social and intellectual atmosphere of bygone ages. The writer, on the other hand, who deals with the development of law and opinion in England during the earlier years of the twentieth century feels, all but instinctively, that he has entered upon a new kind of work which is encompassed with a new sort of perplexity; he is no longer an historian, he is in reality a critic. He is compelled to measure by conjecture the sequence and the tendency of events passing before his eyes, and of events in which he is to a certain extent an actor. Also he cannot as to contemporary events possess knowledge of their ultimate results; yet this knowledge is the instrument on which an historian of good sense mainly relies in forming his judgments of the past. Time tests all;1 but this criterion cannot be applied by the contemporary critic of his own country and its laws. A little research will soon prove to him that few indeed have been the men who have been able to seize with clearness the causes or the tendencies of the events passing around them.2 Rare indeed are the anticipations before 1789 of the revolution impending over France. Among modern writers known to Englishmen, three alone occur to me who can justly claim to have foreseen the course of contemporary history. They are Burke, Tocqueville, and Bagehot. Burke assuredly studied the contest between England and her American Colonies with an insight, and therefore with a foresight, unknown to his generation. He saw through the follies and foresaw the crimes of French Revolutionists with all but prophetic power. But his argument throughout the conflict with the Colonies is weakened by his blindness to the fact, visible to men of far inferior genius to his own, that American independence would not deprive England of her trade with America; and, while he saw all that was contemptible and detestable in the revolutionary movement, his eyes were closed to most of its causes and to all that may now be said in favour of its effects. Tocqueville uttered in January 1848 words which are strictly prophetic of the Revolution of February 1848.1 He, at least forty years ago, predicted that socialism, derided in his own day, might in later years assume a form in which it would obtain a wide and favourable hearing.2 But his unrivalled power of analysis did not reveal to Tocqueville the intellectual capacity of Louis Napoleon, at any rate as a conspirator, or the hold which the Napoleonic tradition had on the memory and the sympathy of the French peasantry and of the French army. Bagehot in early manhood grasped by his power of thought, what, by the way, Palmerston had also perceived through his experience in affairs, the readiness with which an ordinary Frenchman would condone or applaud the crime of December 1851. Bagehot again analysed the principles and the working of the English Constitution during the mid Victorian era with an insight not attained by any Englishman or by any foreigner during the nineteenth century. But Bagehot, even in 1872, did not, as far as I can perceive, fully anticipate that rapid growth or misgrowth of the party system which has now been admirably described and explained by A. L. Lowell in his monumental Government of England. Who can hope to attain anything like success in contemporary criticism of English legislation and opinion when he knows that such criticism has, in the hands of Burke, Tocqueville, and Bagehot, produced only partial success, and success in some cases almost overbalanced by failure? This question supplies its own answer. My aim in forcing this inquiry upon the attention of my readers is to make them perceive that an Introduction, which may appear to be simply a lecture added to my speculations on Law and Opinion during the nineteenth century, is written under conditions which make it rather an analytical than an historical document, and introduce into every statement which it contains a large element of conjecture. In the treatment of my subject I have pursued the method to which any readers of my Law and Opinion have become accustomed. I treat of (A) The state of legislative opinion at the end of the nineteenth century; (B) The course of legislation from the beginning of the twentieth century; (C) The main current of legislative opinion from the beginning of the twentieth century; (D) The counter-currents and cross-currents of legislative opinion during the same period.

(A)

Legislative Opinion at the end of the Nineteenth Century

Let the reader who wishes to realise the difference between legislative opinion during the period of Benthamite liberalism and legislative opinion at the end of the nineteenth century first read and consider the full effect of a celebrated passage taken from Mill’s Essay On Liberty, and next contrast it with the description of legislative opinion in 1900 to be gathered from Lectures VII. and VIII. of the present treatise.1

“The object of this Essay,” writes Mill in 1859, “is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warranty. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right.”

“These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.”1

The importance of this “simple principle,” whatever its intrinsic worth, arises from the fact that at the time when it was enunciated by Mill it obtained, at any rate as regards legislation, general acceptance, not only by youthful enthusiasts, but by the vast majority of English Liberals, and by many Liberal Conservatives. It gave logical expression to convictions which, though never followed out with perfect consistency, were shared by the wisest among the writers and the statesmen who, in the mid-Victorian era, guided the legislative action of Parliament. In regard to interference by law with the liberty of individual citizens, it is probable that a Benthamite Radical, such as John Mill conceived himself to be, differed little from a Whig, such as Macaulay, who certainly did not consciously subscribe to the Benthamite creed,2 and it is probable that the late Lord Salisbury (then Lord Robert Cecil) would not on this matter have disagreed essentially with either the typical Benthamite or the typical Whig.

Mill himself tacitly, though grudgingly, admitted that there was little in the law of England which in 1859 encroached upon individual liberty. The object of his attack was the alleged tyranny, not of English law, but of English habits and opinion. Macaulay laid down no rigid rule limiting the sphere of State intervention, but he clearly held that, as a matter of common sense, government had better in general undertake little else than strictly political duties. English statesmanship was at the middle of the Victorian era, in short, grounded on the laissez faire of common sense. From this principle were drawn several obvious inferences which to enlightened English politicians seemed practically all but axiomatic. The State, it was thought, ought not as a matter of prudence to undertake any duties which were, or which could be, performed by individuals free from State control. Free trade, again, was held to be the only policy suitable for England, and probably the only policy which would in the long run benefit the inhabitants of a modern civilised State. It was further universally admitted that for the Government, or for Parliament, to fix the rate of wages was as futile a task as for the State to undertake to fix the price of bread or of clothes. In harmony with these views one principle was not only accepted but rigidly carried out by every Chancellor of the Exchequer according to his ability; it was that taxation should be imposed solely for the purpose of raising revenue, and should be imposed with absolute equality, or as near equality as was possible, upon rich and poor alike. Hence the ideal Chancellor of the Exchequer was the man who, after providing for the absolutely necessary expenditure of the State, so framed his Budget as to leave the largest amount possible of the national wealth to “fructify,” as the expression then went, “in the pockets of the people.” Gladstone exactly satisfied this ideal. In 1859, hardly any man who occupied a prominent position in public life (except here and there a few belated Protectionists, among whom Disraeli must not be numbered) dissented greatly from Mill’s simple principle, at any rate as regards legislation. In other words, Benthamite liberalism, as interpreted by the rough common sense of intelligent politicians, was, when Mill published his treatise On Liberty, the predominant opinion of the time.1

Contrast now with the dominant legislative opinion of 1859 the dominant legislative opinion of 1900, as described in Lectures VII. and VIII.2 The general effect of these lectures may be thus summed up: The current of opinion had for between thirty and forty years been gradually running with more and more force in the direction of collectivism,1 with the natural consequence that by 1900 the doctrine of laissez faire, in spite of the large element of truth which it contains, had more or less lost its hold upon the English people. The laws affecting elementary education, the Workmen’s Compensation Act of 1897, the Agricultural Holdings Acts, the Combination Act of 1875, the whole line of Factory Acts, the Conciliation Act, 1896, and other enactments dwelt upon in the lectures to which I have referred, though some of them might be defended on Benthamite principles, each and all if looked at as a whole prove that the jealousy of interference by the State which had long prevailed in England had, to state the matter very moderately, lost much of its influence, and that with this willingness to extend the authority of the State the belief in the unlimited benefit to be obtained from freedom of contract had lost a good deal of its power. It also was in 1900 apparent to any impartial observer that the feelings or the opinions which had given strength to collectivism would continue to tell as strongly upon the legislation of the twentieth century as they had already told upon the later legislation of the nineteenth century.2 To any one further who had studied the weight given to precedent by English Parliaments, no less than by English Courts, it must have been, or perhaps rather ought to have been, certain in 1900 that legislation already tending towards collectivism would in the earlier years of the twentieth century produce laws directly dictated by the doctrines of collectivists, and this conclusion would naturally have been confirmed by the fact that in the sphere of finance there had occurred a revival of belief in protective tariffs, then known by the name of a demand for “fair trade.” With the perennial controversy between free-traders and protectionists a student of law and opinion has no necessary concern; he may however note that socialism and protection have one feature in common: they both rest on the belief that the power of the State may be beneficially extended even though it conflicts with the contractual freedom of individual citizens. The protectionist and the socialist each renounces the trust in laissez faire. From whatever point of view our subject be looked at, we reach the conclusion that by 1900 the doctrine of laissez faire had already lost its popular authority.

(B)

Course of Legislation from Beginning of Twentieth Century

My immediate object is to show that certain well-known Acts of Parliament belong in character to, and are the signs of the power exercised by, the collectivist movement during the first thirteen years of the twentieth century. I venture indeed here to remind my readers that throughout this Introduction, as throughout the whole of this treatise, I am not primarily concerned with stating or commenting upon the often complicated provisions of definite statutes, e.g. the Old Age Pensions Act, 1908, or the National Insurance Act, 1911; my aim is always to trace, and as far as I can demonstrate, the close connection between English legislation and the course of legislative opinion in England.

The laws which most directly illustrate the progress of collectivism are the following Acts, taken in several cases together with the amendments thereof: The Old Age Pensions Act, 1908. The National Insurance Act, 1911. The Trade Disputes Act, 1906. The Trade Union Act, 1913. The Acts fixing a Minimum Rate of Wages. The Education (Provision of Meals) Act, 1906. The Mental Deficiency Act, 1913. The Coal Mines Regulation Act, 1908. The Finance (1909-10) Act, 1910.

The Old Age Pensions Act, 1908.—By the Old Age Pensions Act, 1908, any man or woman who has attained the age of 70 years, and who has been a British subject for 20 years up to the date of the receipt of the pension, and who has resided in the United Kingdom for at least 12 years in the aggregate out of such 20 years, and whose yearly means do not exceed £31 : 10s., is, subject to certain disqualifications, entitled to receive at the cost of the State a weekly pension of an amount which varies according to his or her means of from one shilling to five shillings a week.1

This right to a pension is indeed subject to certain disqualifications,1 the principal of which are that a person is in general not entitled to a pension when he is actually in receipt of poor relief, or while he is actually undergoing imprisonment for some serious crime,2 or for ten years after the date on which he has been released from imprisonment for such crime, and that a person is not entitled to a pension if before he becomes so entitled “he has habitually failed to work according to his ability, opportunity, and need, for the maintenance or benefit of himself and those legally dependent upon him.”3 This disqualification, if strictly pressed, might beneficially cut down the number of qualified pensioners, but one may doubt whether, under the present condition of popular feeling, this disqualification will be often enforced.

From the provisions and the tendency of the Old Age Pensions Acts several conclusions worth attention may be drawn: A person, in the first place, may have a full title to a pension though he is an habitual pauper in frequent receipt of poor relief, but prefers to vary the monotony of the poorhouse by occasionally, say in the summer, coming out of the house and relying for support upon his pension and his casual earnings. Then, again, the Old Age Pensions Acts inculcate, by the force both of precept and of example, the belief that the pensioner is in a very different position from a pauper; for sect. 1, sub-sect. 4, enacts that “the receipt of an old age pension under this Act shall not deprive the pensioner of any franchise, right, or privilege, or subject him to any disability.” An old age pensioner, therefore, may even now in conceivable circumstances be entitled to vote for a Member of Parliament and join with friends who are counting on old age pensions after the age of 70, in voting that the title to a pension shall commence with the age of 60. Nor does the evil end with such an exceptional case. It is reasonable to anticipate the establishment in England, as now in our self-governing colonies, in the United States of America, in France, and in the German Empire of Manhood or Universal Suffrage. Now the Old Age Pensions Act is the bestowal by the State of pecuniary aid upon one particular class of the community, namely, the poorer class of wage-earners. It is in essence nothing but a new form of outdoor relief for the poor. Surely a sensible and a benevolent man may well ask himself whether England as a whole will gain by enacting that the receipt of poor relief, in the shape of a pension, shall be consistent with the pensioner’s retaining the right to join in the election of a Member of Parliament?

The amendments, further, of the Old Age Pensions Act, 1908, tend towards relaxing the terms under which a person becomes entitled to an old age pension. Residence in the United Kingdom for 20 years is now reduced to residence for an aggregate of 12 years during such 20 years; and in some cases residence outside the United Kingdom is sufficient. Hence the following important result: The title to an old age pension hardly depends at all upon the character of the pensioner. The Old Age Pensions Acts, as they now stand, are based upon the belief that in the United Kingdom a really poor man, if he is permanently resident here, is morally entitled to outdoor relief at the rate of five shillings a week on attaining the age of 70. This may or may not be sound moral doctrine, but it is absolutely opposed to the beliefs of the Benthamite Liberals, who, by the enactment in 1834 of the New Poor Law, saved the country districts of England from ruin.

The National Insurance Act, 1911.1 —The attention of my readers ought to be directed exclusively to the aim of the Act and to the administrative methods of the Act.2 They each illustrate the influence of collectivism or socialism on English legislation.

Aim of Act.—The Act3 aims at the attainment of two objects: The first is that, speaking broadly, any person, whether a man or a woman, whether a British subject or an alien,4 who is employed in the United Kingdom under any contract of service, shall, from the age of 16 to 70, be insured against ill-health,5 or, in other words, be insured the means for curing illness, e.g. by medical attendance. The second object is that any such person who is employed in certain employments specified in the Act6 shall be insured against unemployment, or, in other words, be secured support during periods of unemployment.1

The whole drift of the statute, and especially the conditions, exceptions, and limitations contained therein, show2 that the Act founds a system of insurance solely for the advantage of persons who, in popular language, would be described as servants or workmen. The Act is, therefore, on the face of it a piece of legislation which is intended to benefit wage-earners, and especially the poorer classes of wage-earners, who have no income sufficient for their support independent of their power to earn it by personal labour.

Thus under the National Insurance Act the State incurs new and, it may be, very burdensome, duties, and confers upon wage-earners new and very extensive rights. The State in effect becomes responsible for making sure that every wage-earner within the United Kingdom shall, with certain exceptions, be insured against sickness, and, in some special cases, against unemployment. Now before 1908 the question whether a man, rich or poor, should insure his health, was a matter left entirely to the free discretion or indiscretion of each individual. His conduct no more concerned the State than the question whether he should wear a black coat or a brown coat.

But the National Insurance Act will, in the long run, bring upon the State, that is, upon the taxpayers, a far heavier responsibility than is anticipated by English electors. Part I. of the Act, which creates a system of national health insurance, has excited much attention and attack. Part II. of the Act, which introduces for a few trades a system of unemployment insurance, has been little noticed by the public, and has met with little censure; yet national unemployment insurance may well turn out to be a far more hazardous and a far more important experiment than is national health insurance. The risks of ill-health are calculable, the risks of unemployment are hard to calculate. No man prefers illness to health, but many men may prefer unemployment money to wages for hard work. But the importance of unemployment insurance does not end here. It is in fact the admission by the State of its duty to insure a man against the evil ensuing from his having no work. This duty cannot be confined permanently to workmen employed in some seven kinds of work. The authors of the Insurance Act know that this is so; they have provided the means by which the Government of the day can, at any moment, without the need for any Act of Parliament, increase the number of the insured trades. The National Insurance Act admits the so-called “right to work.” There are men still living whose political memory carries them back to 1848. They will recollect that the droit au travail was then one of the war-cries of French socialists, and was in England deemed to be one of the least reasonable of their claims. Nor is it easy to forget the saying attributed to Archbishop Whately, “When a man begs for work he asks not for work but for wages.” However this may be, the statesmen who have introduced unemployment insurance supported by the State have, whether they knew it or not, acknowledged in principle the droit au travail for the sake of which socialists died behind the barricades of June 1848. The National Insurance Act is in accordance with the doctrines of socialism, it is hardly reconcilable with the liberalism, or even the radicalism of 1865.

Administrative Methods of Act.—The methods by which the objects of the Act are to be obtained is marked by characteristics which harmonise with the principle or the sentiment of collectivism.

The National Insurance Act greatly increases both the legislative and the judicial authority of the Government or of officials closely connected with the Government of the day.

Legislative Authority.—Under Part I. of the Act the administration of national health insurance is ultimately placed in the hands of, or controlled by, a new body of insurance commissioners who are appointed by the Treasury. These governmental officials have the power to make regulations for the carrying out of the Act which, if not annulled by the King in Council, become part of the Act itself. The width of this authority can only be realised by considering the language of the National Insurance Act, sect. 65, which runs as follows:

“The Insurance Commissioners may make regulations for any of the purposes for which regulations may be made under this Part [I.] of this Act or the schedules therein referred to, and for prescribing anything which under this Part of this Act or any such schedules is to be prescribed, and generally for carrying this Part of this Act into effect, and any regulations so made shall be laid before both Houses of Parliament as soon as may be after they are made, and shall have effect as if enacted in this Act.”

This power to make regulations is probably the widest power of subordinate legislation ever conferred by Parliament upon any body of officials, and these officials, namely, the Insurance Commissioners, are appointed by the Treasury, i.e. by the Government, and are part of our whole governmental system. The regulations made by them come into force immediately after they are made. Any regulation indeed must be laid before each House of Parliament for twenty-one days, and may be annulled by the King in Council on a petition that it shall be annulled being presented within that twenty-one days by either House.1 But any one will note that even such annulling is without prejudice to the validity of anything previously done under the annulled regulation. Practically, and with regard to any matter within the terms of Part I., a regulation made by the Commissioners is in reality part of the Act, and noncompliance therewith is made an offence as if it were part of the Act.2

Part II. of the Act contains the law as to unemployment insurance. The administration and management of this part of the Act are placed in the hands of the Board of Trade, or, in other words, of the Government. Now the Board of Trade has a power of making regulations for any of the purposes for which regulations may be made under that part as wide as the power conferred upon the Insurance Commissioners for making regulations with regard to health insurance.1 But the Board of Trade has a further and most important power of adding to the number of insured trades.2 Hence it follows that the Government of the day can of their own authority increase indefinitely the number of insured trades, and apparently extend the provisions as to unemployment insurance to every trade throughout the United Kingdom.3

Judicial Authority.—As to many questions concerning health insurance which may arise under Part I. of the Act, the Insurance Commissioners have judicial authority.4 Any person aggrieved by their decision may appeal to the County Court, with a further right of appeal on any question of law to a judge of the High Court. But this right of appeal has, I am told, been made little or no use of. Under Part II.5 any claim by a workman for unemployment benefit, and any question arising in connection with such claim, are, in the first instance, to be decided by one of the insurance officers, i.e. by officials appointed by and in the service of the Board of Trade. Such decision is subject to an appeal, on the part of the workman making the claim, to a Court of Referees.1 A Court of Referees consists in general of three persons—one drawn by rota from a panel of employers’ representatives, another drawn by rota from a panel of workmen’s representatives, and a Chairman (who must be neither an employer nor a workman in an insured trade)2 appointed by the Board of Trade. On an appeal the Court of Referees may make to the insurance officer such recommendation as they may think proper. The insurance officer, unless he disagrees with the recommendation, must give effect to it. If he disagrees he must, if requested by the Court, refer the recommendation to the umpire. The umpire is a permanent official appointed by His Majesty, i.e. by the Government of the day. The decision of the umpire is final and conclusive, i.e. the jurisdiction of the law Courts is apparently excluded. One such umpire has now been appointed for the whole United Kingdom. An insurance officer however may, if he considers it expedient, instead of determining any claim or question, refer it at once to a Court of Referees, whose decision will be final and conclusive. The result seems to be that this course of procedure by the insurance officer excludes both the jurisdiction of the umpire and of the law Courts.

Neither the Chairman of a Court of Referees, nor even the Umpire, has the security of tenure conferred on every judge of the High Court under the Act of Settlement.

These summary statements of the authority, both legislative and judicial, given to persons or bodies either closely connected with, or subject to, or part of the Government of the day, are enough to prove that the Insurance Act creates in England a system bearing a marked resemblance to the administrative law of France.1 Now administrative law has, it must be admitted, some distinct merits. A law Court is not a body well suited for determining the number2 of disputes or claims which are certain to arise under the National Insurance Act. Legal proceedings, even in the County Courts, must always be slow and relatively expensive. Official proceedings may be rapid and may be rendered not costly to litigants. But administrative law has two defects which have till very recent years forbidden its existence in England. Administrative tribunals always tend to exclude the jurisdiction of the ordinary law Courts. Administrative Courts are always more or less connected with the Government of the day. Their decisions are apt to be influenced by political considerations. Governmental officials cannot have the thorough independence of judges. Both these defects are apparent in the administrative system framed by the authors of the National Insurance Act. We may be certain that the Regulations made or sanctioned by the Government of the day will, whatever party be in office, be occasionally dictated by the desire of every English Ministry to conciliate the goodwill of the electors. It is incredible that quasi-judicial decisions pronounced by the Insurance Commissioners or by the Courts of Referees will not sometimes be influenced by the same desire. There exists special reason to fear the effect of political bias on decisions with regard to unemployment insurance. The question whether workmen are or are not entitled to unemployment benefit may conceivably become very closely connected with their power to carry on a strike with success. A slight legislative change in the terms of one enactment in the National Insurance Act1 might make it possible for strikers to support a contest with their employers by means of money in part supplied by the State. The constitution of the Court of Referees shows that Parliament felt the difficulty of obtaining an impartial decision of the questions which might come before such a Court. It is not equally clear that Parliament has excluded the risk that the action of such an official Court may be swayed by the political principles of the Government which takes part in constituting the Court. An administrative Court is never a completely independent tribunal.

The Trade Disputes Act, 1906.—To a student interested in the course of law and opinion during the twentieth century the character and scope of this statute is summed up in an enactment which runs as follows:

“An action against a trade union, whether of workmen or masters, or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of, the trade union, shall not be entertained by any Court.”1

The direct effect of this enactment is that a trade union, whether of workmen or masters (which may be a very wealthy society), is now absolutely protected from liability to an action for any tort or wrong by or on behalf of the trade union.2 Thus if a trade union possessed, say, of £20,000, causes a libel to be published of A, an employer of labour, or of B, a workman who refuses to join the union, or excites some fanatical ruffians to assault A or B, neither A nor B can maintain an action against the union for the tort, and thereby either vindicate his character or recover a penny of damages.3

This enactment therefore confers upon a trade union a freedom from civil liability for the commission of even the most heinous wrong by the union or its servants, and in short confers upon every trade union a privilege and protection not possessed by any other person or body of persons, whether corporate or unincorporate, throughout the United Kingdom. This is assuredly a very extraordinary state of the law;1 it points towards indirect results which have not yet been fully apprehended by the English public.

(1) It makes a trade union a privileged body exempted from the ordinary law of the land. No such privileged body has ever before been deliberately created by an English Parliament.

(2) It is highly probable that the legal immunities conferred upon trade unions2 may soon be claimed by, and must be conceded to bodies which may not be now technically within the definition of a trade union. Suppose that a tenants’ union were created for the purpose of lowering rents, or a labourers’ union for the purpose of raising the wages of agricultural labourers. It would be difficult indeed to give any sound reason why such union should not, in common with trade unions, be protected against actions for libel or for any other tort.

(3) A tort will sometimes, though not always, involve the wrongdoer in the commission of a crime. A sufferer who finds that he cannot bring an action against a trade union for a gross libel, may be tempted to try whether he may not obtain at least protection by substituting a prosecution for an action. Nothing could from a public point of view be more disastrous. Criminal proceedings are, as compared with civil proceedings, ineffective. For their very severity detracts from their utility. A jury will often hesitate to convict an offender who may have acted from more or less good motives where they would be ready to make him pay damages for the injury done, e.g. by a libel, to an innocent person, and judges rightly frown upon the attempt to turn a tort into a crime. Then, too, punishment for crime falls inevitably within the control of the Crown, or in other words of the Government. Suppose that the leaders of a trade union were convicted as criminals of libel: Is it at all certain that a Government fearing the displeasure of a Labour Party, might not use the Crown’s prerogative of pardon to put an end to the imprisonment of men whom trade unionists held to be martyrs?

(4) An enactment which frees trade unions from the rule of equal law stimulates among workmen the fatal delusion that workmen should aim at the attainment, not of equality, but of privilege. The Trade Disputes Act as a whole, and especially the fourth section thereof, is best described in the words of Sir Frederick Pollock: “Legal science has evidently nothing to do with this violent empirical operation on the body politic, and we can only look to jurisdictions beyond seas for the further judicial consideration of the problems which our Courts [up to 1906] were endeavouring (it is submitted, not without a reasonable measure of success) to work out on principles of legal justice.”1 This is the conclusion of an impartial jurist. Historical fairness requires me to add one reflection. Our Combination law has been from beginning to end vitiated by the delusion that the relation of workmen and masters ought to be regulated by exceptional legislation.2 The unjust severity towards workmen which was embodied in the Combination Act, 1800, is the explanation, though not the excuse, for the unjust favouritism enjoyed by trade unionists under the Trade Disputes Act, 1906.

Every objection which lies against the Trade Disputes Act has received increased force from the passing of—

The Trade Union Act, 1913. In 1909 the Courts unhesitatingly decided that the funds of a trade union3 could not lawfully be applied to the furtherance of political objects.4 This judgment, though approved of by sound lawyers, excited the censure of trade unions. The Trade Union Act, 1913, was passed to reverse or to annul that decision. A trade union has thus power to become an avowedly political association. It is difficult to suppose that men of justice and common sense could maintain that such an association can prudently be relieved from all liability to an action for tort, e.g. for the publication during an election of some gross libel on a candidate whose politics meet with the disapproval of a trade union.5

Acts fixing Minimum Rate of Wages.—Up to the last quarter of the nineteenth century it was the firm conviction of English economists, and of English Liberals, that any attempt to fix by law the rate of wages was an antiquated folly. This belief is no longer entertained by our Parliamentary statesmen. Under the Trade Boards Act, 1909, Trade Boards1 have wide powers for the establishment of minimum rates of wages in certain trades,2e.g. the trade of ready-made and wholesale bespoke tailoring, and the Board of Trade has power by an order which needs confirmation by Parliament, to extend the Act to other trades.3 By the Coal Mines (Minimum Wage) Act, 1912, Parliament has itself fixed a minimum wage for workmen employed underground in coal mines.4

The influence of collectivism on legislation in the twentieth century is curiously traceable in laws enacted since 1900, which, though to a certain extent defensible on Benthamite grounds, would hardly have been passed when Benthamite liberalism was the dominant opinion of the day. The meaning of this statement can be best shown by a few illustrations.

The Education (Provision of Meals) Act, 1906.—The Elementary Education Act, 1870, was the work of Liberals, and even of Conservatives, who were not consciously influenced by any ideas which could be called socialistic. Whether the Education Act, 1891, which practically relieved parents from the necessity of paying for any part of their children’s elementary education, would have been approved of by the statesmen who passed the Education Act, 1870, may be open to doubt. It is certain that they would have condemned the Education (Provision of Meals) Act, 1906. No one can deny that a starving boy will hardly profit much from the attempt to teach him the rules of arithmetic. But it does not necessarily follow that a local authority must therefore provide every hungry child at school with a meal;1 still less does it seem morally right that a father who first lets his child starve, and then fails to pay the price legally due from him for a meal given to the child at the expense of the rate-payers should, under the Act of 1906, retain the right of voting for a Member of Parliament.2 Why a man who first neglects his duty as a father and then defrauds the State should retain his full political rights is a question easier to ask than to answer.

Take again The Mental Deficiency Act, 1913. Most of its provisions for the protection of defectives, both from themselves and from their neighbours, recommend themselves to common sense. They would probably have been welcomed by a humanitarian and a jurist, such as Bentham. Yet the Act would hardly have been passed by the Parliament, say of 1860. The interference which it involves with the dangerous liberty of defectives would at least have raised suspicion in the minds of men who had hailed the individualism of Mill’s Liberty with indiscriminating applause. They would have felt that the measure was open to one serious objection. The Mental Deficiency Act is the first step along a path on which no sane man can decline to enter, but which, if too far pursued, will bring statesmen across difficulties hard to meet without considerable interference with individual liberty.

The Coal Mines Regulation Act, 1908. The long line of Factory Acts stretches back to 1802,1 when Toryism was dominant. Factory legislation for the protection of children and women was made an essential part of English law at the time when individualistic liberalism was the received creed of educated Englishmen. Even here modern collectivism has given a new turn to old legislation. The Factory Acts interfered little, if at all, with the right of a workman of full age to labour for any number of hours agreed upon between him and his employer. But the Coal Mines Regulation Act, 1908, prohibits, subject to certain limitations, the employment of workmen in coal mines for more than eight hours during any consecutive twenty-four hours, and imposes a penalty upon any man, including the workman himself,2 who contravenes the provisions of the Act.

The Finance (1909-10) Act, 1910.—From, at any rate, 1845, till towards the close of the nineteenth century a taxing Act was generally held open to censure if it imposed a special burden upon one class of the community; it was still more generally agreed that taxation should be imposed mainly, one might almost say exclusively, to meet the financial wants of the State.1 Retrenchment and economy in short were considered to be the appropriate virtues of a Chancellor of the Exchequer. Now the Finance Act, 1910, imposed various new taxes, such as Increment Value Duty, or Income-tax in the shape of Super-tax on incomes over £5000; but the essential characteristic of the Act lies not in its imposition of a heavy burden of taxation, but in its violation of the two principles which had been on the whole respected by Chancellors of the Exchequer during the greater part of the nineteenth century. It imposes specially heavy taxes upon the rich, and upon landowners. It is also an Act passed not for the mere purpose of raising needful revenue, but with the aim of promoting social or political objects. Undeveloped land duty, for example, is imposed, partly at any rate, for the purpose of compelling or inducing a landowner to erect dwelling-houses or buildings which may be useful as habitations or places of business, though he might himself prefer to leave his land open as a field or garden. Whether such filling up of open spaces might always be an advantage to the public I do not care to consider; all I insist upon is the plain fact, that the Finance Act, 1910, is a law passed not merely to raise the revenue necessary for meeting the wants of the State, but also for the attainment of social ends dear to collectivists.

This feature in the Act may give rise to serious reflection. It sets a precedent for the use of taxation for the promotion of political or social ends. Such taxation may easily become the instrument of tyranny. Thus revolutionists bent on the nationalisation of land might, by heavy taxation, beat down its value in the hands of a private owner till he is willing to sell it far below its real worth. Revolution is not the more entitled to respect because it is carried through not by violence, but under the specious though delusive appearance of taxation imposed to meet the financial needs of the State.

(C)

The Main Current of Legislative Opinion from the beginning of the Twentieth Century

The main current of legislative opinion from the beginning of the twentieth century has run vehemently towards collectivism.

When the last century came to an end belief in laissez faire had lost much of its hold on the people of England. The problem now before us is to ascertain what are the new causes or conditions which since the beginning of the present century have in England given additional force to the influence of more or less socialistic ideas.1 These causes may be thus summed up:

1.The Existence of Patent Facts which impress upon ordinary Englishmen the Interdependence2ofPrivate and Public Interest. — Mill’s “simple principle”1 depends wholly upon the assumption that in a civilised country, such as England or France, the conduct of an individual may be strictly divided into conduct which concerns or interests himself alone, and conduct which concerns mainly the State or, in other words, his neighbours. It is also tacitly assumed by Mill that by far the greater portion of the conduct pursued by an ordinary and well-meaning citizen concerns mainly himself, and that therefore by far the greater part of such a man’s action ought to be guided by his own opinion or judgment, and certainly ought not to be interfered with by the force of law.2 But since 1859 almost every event which has happened has directed public attention to the extreme difficulty, not to say the impossibility, of drawing a rigid distinction between actions which merely concern a man himself and actions which also concern society. The perplexity indeed of modern law-makers, as indeed of the public, has been of late indefinitely increased by several circumstances, each of which tends to blur the distinction between matters which concern only an individual and matters which concern the public.

Thus the whole course of trade tends rapidly to place the conduct of business in the hands of corporate or quasi-corporate bodies. The railway companies, for instance, of England are wholly in the hands of masses of shareholders who for some legal purposes may well be considered one person, though they constitute in reality many thousands of persons, and of persons who in practice never take any effective part in the management of the concerns from which they derive their income. These companies, moreover, carry on a business the successful management whereof assuredly affects the prosperity, and even the safety, of the United Kingdom. Hence the antithesis between the individual and the State is with difficulty maintainable. A modern strike again, whether it be a strike against one employer, or a body of employers, turns out more often than not to involve social or public interests. But when once this is granted the application of Mill’s simple principle becomes no easy matter. An impartial observer may doubt whether the principle itself can really govern the complex transactions of modern business.

The advance, again, of human knowledge has intensified the general conviction that even the apparently innocent action of an individual may injuriously affect the welfare of a whole community. The first man who carried a few rabbits with him to Australia and set them loose there to propagate their offspring at will, was no criminal; he no doubt felt that he was doing a thing beneficial to himself, and, if he thought about his neighbours at all, not injurious to the public. But few malefactors have ever given more trouble to, and imposed more expense upon, a respectable community than this ill-starred importer of rabbits brought upon his adopted country. Almost every addition, again, to that sort of knowledge, which is commonly called science, adds to the close sense of the interdependence of all human interests. The discovery, for instance, that the health of a nation depends, or may depend, on the general observation of certain rules of health, not only increases this sense of interdependence but also suggests that the fancies, the scruples, or the conscientious objections of individuals, or, to put the matter shortly, individual liberty must be curtailed when opposed to the interest of the public.

2.The Declining Influence of Other Movements.—Various political, social, or even theological movements or beliefs, which during the nineteenth century occupied the thoughts of statesmen, patriots, and philanthropists, have ceased to interest deeply Englishmen of the twentieth century. Hence half the attractiveness of socialism. It is a system which has not as yet been tested by experience; it has not as yet achieved in practice even that half-success which, to ardent believers in plans for the improvement of mankind, is equivalent to something more disappointing than failure.

That many movements which seemed full of infinite promise have, even when successful, disappointed the hopes of their adherents is certain. The belief, for instance, in the untold benefits to be conferred upon mankind by merely constitutional changes, such, for example, as the establishment of Republics, or of Parliamentary Monarchies, is hardly comprehensible to the Englishmen of to-day. The passion for nationality, again, no longer commands in England, or indeed throughout Europe, the enthusiasm aroused by Mazzini, by Kossuth, by Cavour, and by Garibaldi. The men of the twentieth century find it hard to understand how aged statesmen, such as Palmerston and Lord John Russell, became fervent believers in the principle of nationality, and such modern critics of mid-Victorian ideas are specially puzzled when they find a belief in nationalism to have been combined with a desire to found throughout Continental Europe constitutional monarchies after the English model. Nor is this diminution of interest in the cause of nationalism a result of its failure. It were truer to assert that the success of nationalism has in England destroyed enthusiasm for nationality. Italy has achieved freedom, unity, and independence. But the resurrection of Italy has lost its romance. Germany has for the first time become a united and powerful State. But then the creation of the German Empire has not fulfilled the hopes of English constitutionalists. It has imposed upon the world the all but unbearable burden of huge standing armies. The unity of Germany has involved the dismemberment of France. We can at any rate now see that national independence is nothing like a cure for all the evils under which a country may suffer. No foreigner tyrannises over Spain or Portugal, yet it may be doubted whether independence has brought immense benefit to Spaniards or to Portuguese. This state of feeling explains, though it does not justify, a singular phenomenon. Englishmen of to-day have witnessed the victories gained by the Greeks over the Turks with an apathy or indifference which would have amazed many of our grandfathers, even though they were high Tories.

Where, again, can we find the generous enthusiasm for raising backward races of the world, such as the negroes of America, to a position of freedom and equality? The spirit of Garrison seems to be dead in Massachusetts. That hatred of slavery, which wellnigh eighty-one years ago compelled the emancipation of the West Indian slaves, seems for the moment unknown to English electors, though we may trust that this decline in public virtue is a merely transitory phenomenon.

An observer, further, who is anxious to treat a serious matter with fairness, can hardly help suspecting that preachers and divines of to-day have lost to some extent the belief, held by most of their predecessors in England, that human beings individually, or society as a whole, can be reformed by the teaching of doctrine which the preacher holds to be religious truth. The nature of the possible change or contrast on which it is necessary to insist may be most fairly shown by means of historical examples. Nobody for a moment doubts that the teaching of Wesley, and the Methodist movement generally, did produce a great and most beneficial effect upon the social condition of thousands among the miners, the labourers, and the artisans of England. Religious conversion of men, whom ignorance and want of moral guidance had left in a condition of something very like Paganism, produced a body of good men and of good citizens, and of persons therefore who in a country like England did as a rule obtain material prosperity.1 It has been indeed not unreasonably suggested2 that the rise of Methodism diverted the ablest men among the wage-earners of England from sympathy with the revolutionary doctrines of 1789. But however great the benefits conferred by Methodism on large bodies of Englishmen, it is clear that the primary object of the early Methodists was to inculcate what they held to be the saving truths of Christianity. Social reform was the happy but secondary result of their teaching. The same remark holds good of the Evangelicals, though happily their religious fervour made them the champions of humanitarianism. The High Churchmen and Tractarians of eighty years ago were certainly, and, from their own point of view quite rightly, much more occupied in vindicating or asserting the Catholic character of the Church of England than in any kind of secular reform. That every sincere minister of religion inside and outside the Church of England has laboured and is labouring to promote, according to his lights, charity, peace, and goodwill among mankind, even a cynic would hesitate to deny. The language of Richard Baxter—

  • I preached as never sure to preach again,
  • And as a dying man to dying men—

describes the sincere purpose of the best and the most pious among the preachers of England up to the middle of the nineteenth century: but it hardly describes the attitude or the aim of the best and the most sincere preachers of to-day. This assertion does not imply any change of creed on the part of ministers of religion, still less does it point at any kind of dishonesty. My statement is merely the recognition of an admitted fact. Good and religious men now attach less importance to the teaching of religious dogma than to efforts which may place the poor in a position of at any rate comparative ease and comfort, and thus enable them to turn from exhausting labour to the appreciation of moral and religious truth. This is a change the existence whereof seems hardly deniable. It gives to the preachers of to-day a new interest in social reform; and, it may be added, the declining interest in the preaching of religious dogma in itself opens the minds of such men to the importance of social improvement. But to speak quite fairly, this change produces some less laudable results. It disposes zealous reformers to underrate the immense amount of truth contained in the slow methods of improvement advocated by believers in individualism and laissez faire, and to overrate the benefits to be gained from energetic and authoritative socialism. The fervent though disinterested dogmatism of the pulpit may, moreover, in regard to social problems, be as rash and misleading as the rhetoric of the platform. It is specially apt to introduce into social conflicts the intolerable evil of “thinking fanatically,”1 and therefore of acting fanatically. However this may be, the altered attitude of religious teachers in regard to social reform has, in common with the other changes of opinion on which I have insisted, added strength to the current of collectivism.

3.The General Acquiescence in Proposals tending towards Collectivism.—Wealthy Englishmen have made a much less vigorous resistance to socialistic legislation than would have been expected by the statesmen or the economists of sixty years ago. This acquiescence in proposals opposed to the apparent interest of every owner of property, has led at least one ingenious writer1 to fancy he had discovered some unknown law of human nature which compelled the rich men of England to perform acts of otherwise inexplicable unselfishness. In truth a somewhat curious phenomenon is amply explained by the combination of an intellectual weakness with a moral virtue, each of which is easily discernible in the Englishmen of to-day. The intellectual weakness or failure is the indolent assumption that the effect of apparently great legal or political changes is, in the long run, very small. This view is suggested by the superficial reading, or the still more superficial memory, of English political history from the accession of George III. (1760) to the accession of George V. (1910). During these one hundred and fifty years almost every legal change, whether entitled reform or revolution, has produced far smaller results than were anticipated by their advocates or by their opponents. Catholic Emancipation, 1829, the Reform Act, 1832, the establishment of Free Trade, 1845, the line of Factory Acts, extending from 1802 to the present day, the democratic extensions of the Parliamentary suffrage, which received their latest, though not probably their final, development in 1884, have not to all appearance revolutionised the condition of England. They have not led to deeds of sanguinary violence, nor given rise to the reactionary legislation which has done so much to delay the course of peaceful progress in France. Hence the homely and comfortable but delusive doctrine that in the political world “nothing signifies.”1 The high moral virtue, which tends accidentally in the same direction as a kind of intellectual apathy, is the daily increasing sympathy in England with the sufferings of the poor. Benevolence is quite as natural to man, and in fact is far more common, at any rate with civilised men, than outrageous selfishness or malevolence. An Englishman of the middle classes who is freed from the necessity for all-absorbing toil in order to obtain the means necessary for acquiring the independence or the comforts of his life, is more often than not a man of kindly disposition. His own happiness is diminished by the known and felt miseries of his less wealthy neighbours. Now, for the last sixty years and more, the needs and sufferings of the poor have been thrust upon the knowledge of middle-class Englishmen. There are persons still living who can recall the time when about sixty years ago the Morning Chronicle in letters on London Labour and the London Poor revealed to the readers of high-class, and then dear, newspapers the miserable condition of the poorer wage-earners of London. These letters at once aroused the sympathy and called forth the aid of Maurice and the Christian Socialists. For sixty years novelists, newspaper writers, and philanthropists have alike brought the condition of the poor constantly before the eyes of their readers or disciples. The desire to ease the sufferings, to increase the pleasures, and to satisfy the best aspirations of the mass of wage-earners has become a marked characteristic of the wealthy classes of Englishmen. This sentiment of active goodwill, stimulated no doubt by ministers of religion, has spread far and wide among laymen, e.g. lawyers, merchants, and others not specially connected with any one religious, theological, or political party. There is nothing in all this to excite surprise, though there is much to kindle hope. It may be expected that, as has happened again and again during the history of England, the power of opinion may, without any immense revolution in the institutions of the country, modify and reform their working. No doubt there is something also in the present condition of public sentiment to arouse fear. The years which immediately preceded the French Revolution witnessed the rapid development of benevolence and philanthropy in France and throughout the civilised countries of Europe. These feelings were not unreal though coloured, under the influence of Rousseau, with too much of rhetoric to suit the taste of the twentieth century, and were connected with speculative doctrines which, in common with modern collectivism, combine some important truths with some at least equally important delusions. No criticism, in any case, of public opinion in England is worth anything which fails to take into account the goodwill of the richer classes of Englishmen towards their less prosperous neighbours.

4.The Advent in England of Parliamentary Democracy.—Democracy, if the word be used in the way it should always be employed, as meaning a form of government, has no necessary connection with collectivism.1 It is nevertheless true that the extension of the Parliamentary suffrage (1866-1884), combined with the existing conditions of public life in England, has increased, and often unduly increased, the influence of socialists, and for the following reasons:

It has, in the first place, made known and called attention to the real or the supposed wishes or wants of the poorer electors.

It has, in the second place, increased the power of any well organised Parliamentary faction or group, which is wholly devoted to the attainment of some definite political or social object, whether the object be the passing of socialistic legislation or the obtaining of Parliamentary votes for women. For such a group may certainly come to command a vote in Parliament sufficient to determine which of the two leading parties, say, speaking broadly, of Conservatives or of Radicals, shall hold office. In such circumstances one of these two parties is almost certain to form an alliance with a faction strong enough to decide the result of the great party game. Hence it may well happen that socialists may for a time obtain the active aid, and to a certain extent the sympathy, of a great party whose members have no natural inclination towards socialism. This possible tyranny of minorities is a phenomenon which was hardly recognised either by the statesmen or by the thinkers of 1860 or 1870, but it is a fact to which in the twentieth century no reasonable man can shut his eyes.

The course of events, in the third place, and above all the competition for office which is the bane of the party system, have at last revealed to the electorate the extent of their power, and has taught them that political authority can easily be used for the immediate advantage, not of the country but of a class. Collectivism or socialism promises unlimited benefits to the poor. Voters who are poor, naturally enough adopt some form of socialism.

5.The Spread of Collectivism or Socialism in Foreign Countries.—Englishmen have rarely been directly and consciously influenced by the example of foreign countries. English political or social movements have been influenced far less by logical argument than by the logic of facts, and of facts observable in England. English collectivism and socialism owes its peculiar development in England mainly to the success of English trade unionism, but every part of the world is by means of railways and electric telegraph being brought nearer to each other. It may therefore be taken for granted that the progress of socialistic legislation and the trial of socialistic experiments in English colonies, such as the Australian Commonwealth, or in the United States, or even in an utterly foreign country, such as France, have promoted the growth of collectivism in England. In 1914 events occurring in France are better known to an English artisan than in 1814 they were known to an English squire or merchant.

It is worth while in this connection to observe how nearly the French Legislature has, whether consciously or not, entered upon the path followed by the Imperial Parliament of the United Kingdom. The resemblance between the development of social legislation in France and in England may be thus illustrated: The laws of March 21, 1884, and of July 1, 1901, have established in France the “right of association” (to use a French term), and thereby conferred upon trade unions, whether of workmen or of masters, and also upon all other professional associations, rights closely resembling, though not identical with, the rights possessed since 1875 by English trade unions. In France provisions for the support of the poor have received a development which at any rate recall the English poor law.1 In both countries the law confers old age pensions on the poor, though in France both the employer and the employed contribute to the pension. In both countries there exists a body of factory legislation, though it is far less developed in France than in England. In France as in England accidents befalling a workman in the course of his employment entitle him to compensation from his employer.2 In each country the law prohibits the truck system of payment, and the law secures for workers in factories and shops a weekly day of rest.3 The English Parliament has in the case of some employments established a minimum wage in favour of workmen.4 Proposals in favour of the same policy have been laid before the French Parliament, and, it is said, may probably find acceptance. The reacquisition in 1908 by the French State of a whole railway system is a considerable step towards the nationalisation of railways.1 In none of these cases does the law of the two countries coincide, but in these and in many other instances English public opinion and French public opinion are clearly flowing in the same direction. As far as Englishmen can judge, the law of England has, in its unsystematic way, gone further in the direction of socialism than has the law of France. I can discover no French law giving to any association the privileges conferred on English trade unions by the Trade Disputes Act, 1906. A foreign critic may conjecture that the influence of small landowners, or so-called peasant proprietors, in France checks the progress of socialism. The comparison between the social legislation of the two countries has this special point of interest: In each country you have a real system of popular government; in each country Parliament is supreme; in each country parliamentary government means party government. The Third Republic of France more closely resembles, and can more easily be compared with, the constitutional monarchy of England than can any other system of government now existing on the European Continent.

6.The Existence of Industrial Discontent or Warfare.—“The industrial situation . . . in the world at large has not improved during the last twenty-five years. On the contrary, it has become more exasperated and more dangerous. What is the way out of the prevailing condition of industrial warfare? It amounts to warfare, this incessant conflict within the political body between the employed and the employers—and in many cases it becomes an actual physical contest.”1 Thus writes the President Emeritus of Harvard University: he is no socialist; he represents the energetic character of New England; he is imbued with the sanguine temperament of every born citizen of the United States. “Social discontent is by universal admission the distinctive character of our age; and the rapid spread among the European populations of doctrines which presuppose a more or less violent transformation of society provides no distant parallel to the ardent Messianic expectations of Christ’s contemporaries.”2 These are the words of the Dean of Durham in a sermon on the Kingdom of God. They are certainly not meant to encourage hopes grounded on revolutionary transformations of our social condition. Who can doubt that discontent among the wage-earners is a distinctive characteristic of the present time?

In any attempt to explain this state of feeling we must bear in mind one consideration. It is that discontent or even violent indignation aroused by an existing state of society is often due far less to the absolute amount of the suffering endured among men prepared to rebel against the most fundamental laws of social existence than to the increased vividness of the contrast between given institutions and the desires of persons who suffer, or think they suffer, from the existing state of things. Thus it is quite possible that the wage-earners of England may be relatively better off than were their fathers or their grandfathers fifty or a hundred years ago. But yet the contrast between the rich and the poor in England may press more heavily upon the thoughts and the imaginations of English working men than it did towards the beginning of the nineteenth century. Whether from an economical point of view the existence of millionaires does great harm, or any harm, to the mass of the people, may be a matter of doubt. What is absolutely certain is that the existence of millionaires emphasises the difference between rich and poor, and also kindles among all classes an exaggerated desire for wealth.

Then, too, it is a highly probable opinion that the poorer citizens of all civilised countries have arrived at a stage of education which makes it easy for them to perceive the possible benefits for wage-earners to be derived from the interference of the State, and at the same time to be victims to the easily propagated delusion that all wealth possessed by the rich is so much stolen from the poor. One lesson of experience should never be absent from the mind of any student engaged in investigating the history of opinion. Revolutions are not by any means always due to increasing or to new oppression. It would be ridiculous to assert that the citizens, for example, of the Australian Commonwealth suffer from oppressive laws; they enjoy high wages, they can if they wish become landowners, they can at their pleasure repeal any law which they deem to be unjust, or enact any law which they deem to be necessary to the prosperity of their country. Yet socialistic legislation and experiment have been carried to a greater length in Australia than in England. The discontent, in other words, with the inequality between rich and poor is, whatever be the reason, felt with special force in a very prosperous English Colony. The history of the French Revolution presents a somewhat similar phenomenon. Hostility to the ancien régime was felt more keenly by Parisians, who from the nature of things could not suffer much from “feudal institutions,” than by peasants living in the country districts of France. The privileges of the nobility had, before 1789, a far more real existence in La Vendée than in any great town, yet the peasants of La Vendée supported the throne and the altar when Paris supported or tolerated the Reign of Terror.1

(D)

Counter-Currents and Cross-Currents of Legislative Opinion from the Beginning of the Twentieth Century2

The progress of the more or less dominant collectivism3 of 1914, or in popular language of socialism, will certainly be delayed, and quite possibly be arrested,4 by different though closely interconnected counter-currents of opinion.

First Counter-current.—The surviving belief in the policy of laissez faire.1

The exaggerated faith once placed in the wisdom of leaving things alone, has brought laissez faire into discredit. Yet a candid observer will note that the distrust of State interference is still entertained by the mass of English citizens. It is not my business to argue that this sentiment never produces bad results. My sole contention is that it has still a very strong hold upon Englishmen, whether rich or poor. Benthamite liberalism owed half of its triumph to its coincidence with the individualism of the common law,2 and independently of the belief in any philosophic theory, the dogma of laissez faire has commended itself, and does commend itself to hundreds of Englishmen, and for very obvious reasons. It has stimulated energy of action. It has left room for freedom of thought and individuality. It has fostered the trust in self-help. It has kept alive emphatically the virtues of the English people. But at this point trust in individual liberty runs into and forms part of a second counter-current, which deserves separate examination.

Second Counter-current.—The inconsistency between democracy and collectivism.

In England a democrat is nowadays more than half a socialist, and a collectivist, or in popular language a socialist, is generally a democrat. As a democrat each of them holds that the best form of government for any civilized country, and certainly for England, is a constitution under which the wish of the majority of the citizens ultimately determines the course of legislation. Popular government, in short, means to such a man, even though he be more or less a socialist, government in accordance with popular opinion.1 This democratic conception of government contains the important truth that it is impolitic if not impossible, at any rate in a civilised State, to found institutions or to enforce laws which the citizens thereof detest. It is further true that honest representative government is the best arrangement hitherto invented for averting legislation which the people of a given country are unwilling to accept. This is the strength of the democratic creed. But it is also true that a modern democracy, while it protects the people from unpopular laws, gives inadequate security for the passing of laws which are in themselves wise and good. So much as to the creed of a thorough-going English democrat who looks, as do most of our Radicals, with some favour upon socialism. A socialist who is secondarily, so to speak, a democrat, believes that any civilised country, and certainly England, should be governed in accordance with socialistic principles, as being the principles which tend to promote the welfare of the people. Now the strength of socialism is that a socialist is saved from the delusion which, though childish, is not uncommon, that whatever the people desire is, because they wish for it, right and wise; and that the granting of such wish will always conduce to the welfare of a country. Most persons further, though not all, will concede that the socialistic ideal contains in itself some elements of truth, and also is the expression of an honest and laudable wish to better the position of the wageearners in every civilised country. This concession, however, does not involve the belief that law can benefit the people as much as does the maintenance of personal freedom. The weak point of the socialistic ideal is that it is a dogmatic or authoritative creed and encourages enthusiasts who hold it to think lightly of individual freedom, and suggests the very dubious idea that in a democracy the wish of the people may often be overruled for the good of the people. The ideal of democracy, in short, is government for the good of the people by the people, and in accordance with the wish of the people; the ideal of collectivism is government for the good of the people by experts, or officials who know, or think they know, what is good for the people better than either any non-official person or than the mass of the people themselves. Each of these two ideals contains something of truth, but each of these ideals may sooner or later clash with each other. This conflict may take various forms. But beliefs marked by essential inconsistency are certain to give rise to most serious and, it may be, very practical and embittered dissension.

In England our socialistic democrat or our democratic socialist is, naturally enough, blind to this inconsistency. He is convinced that socialism will promote the welfare of England. He therefore assumes that socialism when put into practice will become popular. He sees that the progress of democracy has for the last thirty years coincided with the passing of socialistic laws. He forgets that the existence of a democracy prevents any sagacious collectivist from pressing upon English electors any law which is not, apparently at least, beneficial to the poor. The Old Age Pensions Act certainly offers a pecuniary benefit to most wageearners. Whether the working men of England will ultimately gain by relying on the State for their support in old age, is a question which you can hardly expect men who have been able to save nothing for the wants of their declining years to consider. A country labourer will never be offended by the offer of the nation to give him five shillings a week from the day he has reached the age of 70. The inconsistency between democracy and socialism will never be fully recognised until earnest socialists force upon the people some law which, though in conformity with socialistic principles, imposes some new burden upon the mass of the voters.

My aim is to prove that even now such inconsistency exists. Look at things passing before our eyes. A collectivist never holds a stronger position than when he advocates the enforcement of the best ascertained laws of health. Disease inflicts injuries upon men of all classes. Its appearance gives the most striking example of the way in which different members of the community are bound together by that mutual interdependence for which French writers use the term “solidarity.” One would have thought it therefore impossible that a large body of Englishmen should be found to resist measures commended by sound knowledge for the resistance to the spread of disease. That vaccination, if rigidly enforced, would banish small-pox from England is believed by the vast majority of experts competent to form an opinion on such a matter. Yet the Radicals of Leicester, in the name of freedom or of conscience, claim the right and, with the connivance of politicians who are fishing for votes, exercise the power to propagate small-pox. We have here, at any rate for the moment, an instance of conflict between democratic and socialistic enthusiasm. Take again the Mental Deficiency Act, 1913. It approved itself to both Houses of Parliament; it approves itself to almost every person throughout the United Kingdom who possesses the not always united qualities of humanity and of good sense, still it met with strenuous opposition from ardent democrats.

Take quite a different instance of the opposition between democracy and socialism. No one until recent times has disputed that democratic institutions are strengthened by the existence of a large number of small and independent landowners. Whether it be possible to create anew a body of yeomen in a country where, mainly from economical causes, such yeomen have disappeared is a question which need not here receive any answer. No man, however, can dispute that the existence of such a territorial democracy contributes in Switzerland, in France, and in the United States to the prosperity and the effectiveness of popular institutions. But the modern socialist does not desire the maintenance or the production of a large class of independent yeomen. He desires property, and especially property in land, to be owned by the State. He perceives, truly enough from his own point of view, that the existence of a large number of independent landowners, each of whom can call a comparatively small piece of land his own, will be a serious and possibly an insuperable obstacle to the nationalisation of land. The peasant proprietors of France in 1848 rallied round Louis Napoleon because he promised protection against socialists. In truth the opposition between the democratic desire for an independent yeomanry and the socialistic passion for the nationalisation of land is not accidental. The owners of small estates feel more strongly than any other class the joy of ownership. It is among them that the possession of property exercises the magical effect attributed to it by Arthur Young. But a sincere socialist condemns the passion for individual ownership. He wishes to substitute for it the passion for common ownership by the State. Here again the democratic ideal as understood by Englishmen is inconsistent with the ideals of socialism.

Another difference between the ideals of an English socialist and an English democrat is to be found in the attitude which they respectively take up towards scientific experts. The socialist’s ideal is a State ruled by officials or experts who are socialists. The democrat’s ideal is a State governed by the people in conformity with the broad common sense he attributes to ordinary citizens. Hence the socialist escapes the folly of idolising the people. But it were foolish to suppose that democratic suspicion of experts or officials always originates in popular ignorance. Respect for experts ought always to be tempered by the constant remembrance that the possessors of special knowledge have also their special weaknesses. Rarely indeed does reform come from even the best among professional men. Bentham gained the ear of some eminent lawyers, but the conception of Benthamite reform did not come from the leaders of the Bar, nor generally from the judges. Pasteur was no doctor, and the doctors of France for a long time slighted his discoveries and resisted his suggestions. Lister showed, what no one doubts, that professional eminence is not inconsistent with originality and genius, but he was attacked with vehemence by one among the most famous of Scottish physicians, and for many years could not gain the credence or the support of some eminent English surgeons. And this blindness of experts is no accident. A man’s minute knowledge and interest in a certain class of facts, however important in themselves, is, owing to limitations of the human intellect, often balanced by ignorance, in no way disgraceful, of other facts which though they may have a direct bearing upon the prosperity of mankind, do not happen to interest or perhaps to be known to our scientific expert. Canning, we are told by a very distinguished man of science, did not learn till late in life that tadpoles turned into frogs, and thought that a schoolboy who gave him that information was fooling him. This “portentous ignorance” suggests to our scientific instructor that a man capable of it is disqualified from safely exercising high functions of statesmanship. It is happy for England that the unscientific Englishmen of the early nineteenth century had not adopted any such disqualifying dogma. The insight, the foresight, and, above all, the rapid resolution of Canning achieved for England a deliverance from danger hardly less important than the security conferred upon her by the victory of Trafalgar. Our democrat, if he is a man of sense, ought to have one inestimable virtue. He may lack the knowledge possessed by the ablest of specialists; but he knows and feels that the prosperity of men and of nations has its source in self-help, energy, and originality. He is thus saved from that belief in formulas which has now and again wrecked the plans of enthusiastic socialists.

Let us examine the opposition between democracy and socialism from a slightly different point of view. It will then be seen that some of the most energetic movements of the day are closely connected with beliefs which, whether true or false, are naturally adopted by democrats and not easily accepted by socialists. Take, for instance, the agitation in favour of giving parliamentary votes to women. Many arguments worth consideration may be adduced in support of this movement. But its real strength lies in the acceptance of the dogma, that every human being of full age has prima facie an innate or natural right to the full political powers of a citizen. This doctrine is congenial to democrats who at times have treated the claim to manhood suffrage as a natural right. Its fallaciousness has indeed been proved again and again by Burke, by Bentham, and by Comte. It is opposed also to the assumption always latent in socialistic teaching that the will of the people may be overruled by socialists for the people’s good. No existing institution, again, is more democratic, and may possibly turn out more conservative, than the referendum. It lies at the very basis of popular government in Switzerland; but the intelligent socialist fights very shy of the referendum, for he fears, not without reason, that the vote of the people might be adverse to a policy of socialism. On no point, again, is public opinion more divided than on the question of divorce. With the theological beliefs which give special bitterness to this controversy we need not here concern ourselves. The noticeable fact for our present purpose is that the difference of opinion as to the terms, if any, on which divorce ought to be allowed, arises from the difference between the individualistic, or democratic, and the socialistic view of life. If marriage be looked upon mainly as a contract between man and wife it is obviously reasonable to put an end to a marriage of two persons when it causes deep unhappiness to both, or when it causes misery to the one party and gives very little happiness to the other. This consideration seems to many democrats all but conclusive in favour of allowing divorce. Hence in every democratically governed country divorce is made year by year more easily obtainable. But if divorce be looked upon mainly from the point of view of a sane collectivist, the question whether divorce should be facilitated becomes an inquiry far more difficult to answer. Marriage, he will argue, when treated as a union which hardly admits of dissolution, confers great benefits upon the State. The interest of the community therefore is the only test which can decide whether the right to divorce should be extended or restricted; the relief which divorce may give to an individual suffering from an unhappy marriage cannot to socialistic thinkers be a decisive consideration.

Such thinkers are certainly themselves coming to perceive the possible conflict between democratic and socialistic ideals. The devices by which they try to explain away this opposition are sometimes more startling than reassuring. One writer maintains that the whole misery of modern life consists in the conflicting interests of classes, and that when the State substitutes for the existence of different classes one uniform class of citizens all the members whereof are equally governed with equity and in accordance with the principles of enlightened socialism, selfishness and the conflicting interests it produces will disappear.1 To an ordinary man who knows something of history, and has not shut his eyes to human nature as it actually exists, it must seem that the love of self, whether justifiable or unjustifiable, is due to causes deeper than any political or social reform will ever touch. A nation or a State means, conceal it as you will, a lot of individual selves with unequal talents and in reality unequal conditions, and each of these selves does—or rather must—think not exclusively, but primarily of his own self. The old doctrine of original sin may be totally disconnected from the tale of Eve and her apple, or any other religious tradition or theological dogma, but it represents an undeniable fact which neither a statesman nor a preacher can venture to ignore. It is urged again that the need for individuality or originality, which is fostered by democratic freedom, is of trifling importance, and that civilisation owes much less to creative genius than to the collective endeavours of mankind. This is the grossest of blunders. Tarde in his Lois de l’imitation has emphasised with extraordinary subtlety and vigour the debt which we all owe to human imitativeness, but he never overlooks the fact that unless for the occasional appearance of a genius and an inventor, there would be little in existence worth imitation. The very ablest of socialistic or semi-socialistic jurists removes the conflict between the power of the State and the freedom of the individual by, at the same time, thrusting into prominence the notion of solidarity, and asserting in language, which might almost be taken from John Mill, the duty of the State to foster individuality of character. He, however, confers upon the State the right of compelling an individual to take any course of action whatever which the State deems conducive to the welfare of the citizens whereof it is composed.1 Englishmen will readily acknowledge that there are many cases in which the interference of the State really increases the personal liberty of a citizen, but, to any one brought up under the influence of John Mill and Tocqueville, it will be very difficult to believe that it is possible to deny that there may be, and in a socialistic state always will be, a conflict between the freedom necessary for the full development of individuality and the power of a government which has to enforce upon individuals deference to the principles of authoritative socialism. Despotism may continue to be tyranny, even though it may have become both popular and benevolent.

From whichever side the topic is approached, there will appear to be a real inconsistency between democratic government, i.e. the government of public opinion, and the rule of socialism, i.e. the enforcement of principles which, whether true or false, will sometimes assuredly conflict with the public opinion of the time.

A Cross-current.—The opposition to the expensiveness or the financial burdens of collectivism.

Socialistic government is expensive government. And this is no accidental characteristic. For the true collectivist or socialist does not leave a penny which he can help to “fructify in the pockets of the people.” The reason of this is clear. Our socialist believes that money not taken hold of by the State fructifies, if at all, in the pockets of the rich, such as millionaires and Dukes, and that it never reaches the overworked and underpaid wage-earner until it is seized by the tax-collector and dealt out to the worthy poor—and the poor are always worthy—by the action of the State. This line of reasoning or of feeling, of course, leads to the collection of huge revenues to be used for profuse expenditure directed by the superhuman wisdom of Government to the benefit of wage-earners.

The following statements are meant to show the immense increase in the amount of taxation imposed upon the tax-payers and rate-payers of England (including Wales):

The Burden of Taxation.—The tax-payers and rate-payers of England bear the weight of a double system of taxation.

(1) National Taxation, or Taxes, in the Strict Sense of that Term.—Such taxation is imposed directly by Act of Parliament and falls upon all the tax-payers of the United Kingdom. The whole revenue of the United Kingdom, in so far as it is raised by taxation,1 for each of the five years 1908-1909 to 1912-1913, inclusive, may be thus stated:

1908-1909 £125,550,000
1909-1910 105,230,000
1910-1911 175,162,000
1911-1912 155,040,000
1912-1913 154,753,000

In other words, the revenue raised by taxes has increased during the last five years (1908-1909 to 1912-1913) by £29,203,000.

Now the meaning of these facts is made clearer by a comparison of the revenue of the United Kingdom to-day with the revenue of the United Kingdom in 1885-1886. In 1885-1886 the revenue raised by taxation was £74,927,000, whereas the revenue for 1912-1913 was £154,753,000. In twenty-seven years taxation has increased by £79,826,000, that is to say, it has increased, on an average, of slightly under £3,000,000 a year. The revenue, in short, from taxation was in 1912-1913 at least double the revenue in 1885-1886.2

The date 1885-1886 is noticeable. The last great Act of Parliamentary reform was passed in 1884, and established democratic government based on Household Suffrage throughout the whole of the United Kingdom. From 1885 it is possible to trace the gradual increase in the revenue raised by taxation, though this increase does not become very noticeable till some ten years later. The contrast between the £74,927,000 raised in 1885-1886 and the £154,753,000 raised in 1912-1913 is noteworthy. It can hardly be overlooked, whatever may be the inference which is rightly drawn from it. But, as already pointed out, the inhabitants of England are taxed not only as tax-payers but also as rate-payers.1

(2) Local Taxation or Public Rates.—Such taxation is imposed directly by some of the numerous local bodies authorised in England by Act of Parliament to impose rates.2 If we want to see the weight of taxation imposed upon Englishmen by the national taxes with which we have already dealt, and by public rates, it will be convenient to add together the national taxes and the public rates1 for the following four years, 1907-1908, 1908-1909, 1909-1910, 1910-1911. In such a comparison it will be best to omit altogether from our computation of the amount raised for the national revenue any non-tax revenue.2 Hence the following results:

In 1907-1908 the burden of taxes and rates together amounted to £189,947,577, in 1908-1909 to £186,768,203, in 1909-1910 to £168,491,164, and in 1910-1911 to £240,233,131.3

As there is not as yet available any complete return of the rates collected in England since 1910-1911, it is impossible to state authoritatively, how much the rate-payers of England have paid by way of local taxation or rates, in addition to payment of public taxes, in the years 1911-1912 and 1912-1913. If, however, we assume that the rates imposed for the year 1912-1913 were not greater than the rates collected for the year 1910-1911, that sum at least must be added to the amount raised as taxes for that year, with the result that the taxes and rates together amounted to at lowest the sum of £218,013,940. But it may be taken as morally certain that the rates for 1912-1913 will turn out to exceed the rates for 1910-1911 by more than a million,4 and hence the whole amount of taxes and rates for 1911-1912 will come to at least £220,826,131. From the huge amount drawn from tax-payers and rate-payers some inferences may at any rate be drawn with a good deal of probability.

Thus the burden of taxes is gradually forming an immense restriction upon individual freedom, for it must always be remembered that a tax, whatever its form, is always levied upon definite assignable persons with whose means of free action it interferes. The old liberalism of sixty years ago meant cheap government, and encouraged the individual energy which is the life-blood of true democratic government. Then again heavy taxes are a source of public danger. In the case of a foreign invasion an over-taxed England might be found in the course of a very few months to be, even if well provided with Dreadnoughts, an indefensible England. This peril would be greatly increased if the mass of the people and of the voters had come more and more to depend for their prosperity on the aid of the State. A recent Life of Cobbett records that the Peace of Amiens (1803) was so popular with the London mob that they drew the carriage of the French envoy in triumph to his house. No one can doubt that it might be very difficult to carry on even a strictly defensive war, if it became necessary to cut down the amount of old age pensions or of insurance and unemployment benefit. But here we come across the consideration that quite possibly the gradually increasing dislike to excessive taxation might bring not only the richer classes, but also the large middle class of tradesmen and skilled artisans who may feel that they are being pressed down under the load of taxes into the ranks of the strictly poor, to cry halt to any further socialistic and costly experiments. Thus patriotism and imperialism may well reinforce impatience of excessive taxation, and in effect create new cross-currents of opinion hostile to the progress of socialism. Englishmen of wisdom and public spirit may well forbid the squandering upon even benevolent experiments of resources which ought always to be preserved for the defence of our national greatness and independence.

Conclusions

What then are the inferences which can be drawn from the rapid growth of collectivism and the force of the circumstances, feelings, or beliefs which in England oppose its further progress?

One assertion may be made with confidence. It is that the prevalence of inconsistent social and political ideals (which often by the way co-exist in the mind of one and the same person) is full of peril to our country. For it is more than possible that English legislation may, through this inconsistency of thought, combine disastrously the defects of socialism with the defects of democratic government. Any grand scheme of social reform, based on the real or supposed truths of socialism, ought to be carried out by slow and well-considered steps taken under the guidance of the best and the most impartial of experts. But the democratic idea that the people, or any large number of the people, ought to have whatever they desire simply because they desire it, and ought to have it quickly, is absolutely fatal to that slow and sure kind of progress which alone has the remotest chance of producing fundamental and beneficial social changes. Democratic legislation, on the other hand, ought to have the advantage of harmonising with, or at any rate not going much beyond, the public opinion of a given time. But this harmony between law and sentiment is easily contemned by socialists, who feel that they know better than do the electors of England what is really for the good of the English people. Hence it is all but certain that great changes planned by enthusiasts will, if they seem to be popular, be carried out with haste and without due consideration as to the choice of the means proper to obtain a given end, and, on the other hand, that on some occasions a party of self - called reformers will force on the electors changes which, whether good or bad, are opposed to the genuine convictions of the people. All that it is necessary to insist upon is that either blunder is likely to cause huge loss, and it may be ruin, to England. This is a matter of ominous significance.

Another line of reflection is absolutely forced upon a student of recent legislation. The socialists of England who desire “the abolition of the wage system,”1 are, he will see, aiming at a fundamental revolution in the whole condition of English society. The change may be the most beneficial of reforms or the most impracticable of ideals. But in any case it will involve a severe conflict, and a conflict which may last not for years, but for generations. The arduousness of the fight is certain. Englishmen, and especially that class of Englishmen who will have to pay the immense sums, and make the large sacrifices required for carrying out the revolution longed for by enthusiastic socialists, will offer the most stubborn opposition to a change which touches the very foundation of existing society. To Englishmen at least it is one thing to assent to the removal of definite and assignable grievances, it is quite another thing to sanction a course of unlimited innovation justified rather by the feelings and the hopes than by the arguments of its advocates. It is equally certain that the revolution to which socialism points cannot be worked out until the lapse of a long period of time. The social transformation of the modern world must be compared both in its importance and in its difficulty with the Reformation of the sixteenth and seventeenth centuries, or with the French Revolution. The Reformation represented a conflict extending over at least 130 years, the French Revolution can hardly even now be said to have reached its close, and, if we consider it as ended, has covered more than 100 years. In 1789 the best and wisest men in Europe expected from political reforms results as fundamental and as beneficial as any Englishman with leanings towards socialism can expect from social reforms.1 In the one case we know, and in the other case we may conjecture that the expectations of reformers have been based to a large extent on the failure to understand the nature of man.

The last reflection which I will venture to suggest inevitably takes the form of a question. What are the hopes which a reasonable man may cherish with regard to the progress of collectivism in England? Unless he be a person of astoundingly sanguine temperament it would be difficult for him not to perceive that the combination of socialistic and democratic legislation threatens the gravest danger to the country. One may go a step further than this, and point out that if you look to the course of English history, founded as it is on individualism, or to the actual condition of English society, based, as it is, on the ideas suitable to the greatest of commercial communities, the transformation of England into a socialistic State looks like an absolute impossibility. But this fact does not preclude—it really favours—the anticipation that definite reforms of law or custom, and still more of feeling, which are now advocated on more or less socialistic grounds, may be adopted with success by Englishmen. The possible fulfilment of this hope rests upon the assumption that democracy in its best form can become a government which at any rate tries to look, not to the interest of a class, even though the class be made up of the greater number and the poorest among the inhabitants of England, but to the interest of the whole nation. We must assume, we must indeed hope, that the socialists of England will accept the profoundly true dictum of Gabrielle Tarde that “a socialist party can, but a working man’s party cannot, be in the great current of progress.”1 For a party of socialists may aim at the benefit of the whole State, a labour party seeks the benefit of a class. English democracy now knows its power, as English kings knew their power in the Middle Ages, as the English nobility knew its power after the Revolution of 1688, as the middle class knew its power between 1832 and 1866. This historical retrospect suggests much hope. The best of our kings, the most sagacious of our nobility, the most humane and the most prudent of our middle class did, though they each often displayed gross ignorance and marked selfishness, try honestly to govern with a view to the welfare of the whole country. It is to be hoped rather than expected that the English democracy may, under great temptations to err, display as much public virtue as the nobles of 1688 or the ten-pound householders of 1832. On the question whether our hope is well founded the opinion of intelligent and not unsympathetic foreigners is better worth attention than can be the judgment of any Englishman affected, as it must be, by the political sympathies and conflicts of the day. Mr. Lowell has studied the English Constitution more thoroughly than have most Englishmen. He has also carried the analysis of public opinion in England and in the United States a step further than any recent writer. Now of our country he says, “the political system of England, which was never that of an absolute monarchy, and has never become quite a democracy of the traditional type but has ever carried the forms of one age over into the next, and thus combined some of their virtues.”1 These words hint at the aspirations of a reasonable Englishman; it may be hoped that we may carry the individualistic virtues and laws of the nineteenth century into the twentieth century, and there blend them with the socialistic virtues of a coming age. Mr. Charles W. Eliot, the eminent predecessor at Harvard of President Lowell, suggests to a certain extent the mode by which this end may be accomplished. He believes and preaches that, without any tremendous legal change, the social unrest, the existence whereof every one acknowledges, can gradually be put an end to, if we come to the conclusion arrived at by him after studying for a good many years the question of content in labour, that “the conditions of content in labour, which I have enjoyed personally, are those which all labouring people ought to enjoy.”2 Weigh now the words of an eminent German professor who has carefully studied the economic history of England and recognises the development of socialistic ideas among modern Englishmen: “Economic liberalism taught England to believe in the rights and greatest possible development of the individual; to regard each man as equal before the Law, and to display toleration towards the opinions of others, whether in politics or in religion; to place the same social value on all professions, and to respect what other nations and races hold holy. To other nations these and other characteristics of Liberal culture are still novel and unfamiliar. The Englishman will not lose them even under a new social system, for they have become an integral part of his national character.”1 The hopes suggested by these foreign observers of our public life are confirmed by the whole history of England. It has condemned violent revolution, but has favoured the gradual reform or abolition of admitted defects in a tolerable state of society. Englishmen are likely, therefore, to favour the gradual amendment of a social condition as good as, and possibly sounder than, the condition of any other large European country. To this consideration may be added the confidence that the increased sympathy assuredly now felt by the best men and women of England with the wants of the poorer classes will facilitate wise legislation, and create or restore “the conditions of labour under which the labourer may reasonably be expected to be contented, efficient, and happy.” Here, however, we approach the realm of prophecy. A prudent man will in these circumstances do well to adopt as his conclusion the words of Alexis de Tocqueville:

“Le socialisme restera-t-il enseveli dans le mépris qui couvre si justement les socialistes de 1848? Je fais cette question sans y répondre. Je ne doute pas que les lois constitutives de notre société moderne ne soient fort modifiées à la longue; elles l’ont déjà été dans beaucoup de leurs parties principales, mais arrivera-t-on jamais à les détruire et à en mettre d’autres à la place? Cela me paraît impraticable. Je ne dis rien de plus, car, à mesure que j’étudie davantage l’état ancien du monde, et que je vois plus en détail le monde même de nos jours; quand je considère la diversité prodigieuse, qui s’y rencontre, non seulement parmi les lois, mais parmi les principes des lois, et les différentes formes qu’a prises et que retient, même aujourd’hui, quoi qu’on en dise, le droit de propriété sur la terre, je suis tenté de croire que ce qu’on appelle les institutions nécessaires ne sont souvent que les institutions auxquelles on est accoutumé, et qu’en matière de constitution sociale, le champ du possible est bien plus vaste que les hommes qui vivent dans chaque société ne se l’imaginent.”1

[1 ]Tocqueville thus sums up the result of a vehement discussion immediately after the Revolution of February 24, 1848, between himself and an intimate friend: “Après avoir beaucoup crié, nous finîmes par en appeler tous les deux à l’avenir, juge éclairé et intègre, mais qui arrive, hélas! toujours trop tard.”—Souvenirs d’Alexis de Tocqueville, p. 98.

[2 ]Tacitus, it has been pointed out, though endowed with extraordinary sagacity, exhibits little or no insight into the progress of the gigantic revolution which culminated in the establishment of Christianity throughout the Roman Empire.

[1 ]See Tocqueville, Souvenirs, pp. 15, 16, and Law and Opinion, p. 255, post.

[2 ]Tocqueville, Souvenirs, p. 111.

[1 ]See pp. 211-302, post.

[1 ]Mill, On Liberty, pp. 21 and 22.

[2 ]Compare Mill, On Liberty, with Macaulay’s review of Gladstone on Church and State. Mill indeed entertained in his later life a sympathy with socialistic ideals foreign to Macaulay’s whole mode of thought. Leslie Stephen, English Utilitarians, iii. pp. 224-237.

[1 ]It is a curious question how far Bentham’s own beliefs were directly or logically opposed to the doctrines of sane collectivism. He placed absolute faith in his celebrated “Principle of Utility.” He held that, at any rate in his time, this principle dictated the adoption of a policy, both at home and abroad, of laissez faire. But it is not clear that Bentham might not in different circumstances have recommended or acquiesced in legislation which an ardent preacher of laissez faire would condemn. (See Lect. IX. p. 303, post.) It may be suggested that John Mill’s leaning towards Socialistic ideals, traceable in some expressions used by him in his later life, was justified to himself by the perception that such ideals were not necessarily inconsistent with the Benthamite creed, which was his inherited, and to his mind unforsaken faith. See pp. 426-432, post.

[2 ]See pp. 211-302, post

[1 ]Compare especially Lect. IV. pp. 64-69, and Lect. IX. p. 303, post.

[2 ]See pp. 259-279, post.

[1 ]The scale is as follows:

Where the yearly means of the pensioner as calculated under this Act—

Rate of Pension per week.
s. d.
Do not exceed £21 5 0
Exceed £21, but do not exceed £23 : 12 : 6 4 0
Exceed £23 : 12 : 6, but do not exceed £26 : 5 : 0 3 0
Exceed £26 : 5 : 0, but do not exceed £28 : 17 : 6 2 0
Exceed £28 : 17 :6, but do not exceed £31 : 10 : 0 1 0
Exceed £31 : 10 : 0 No pension.

See sects. 1, 2, and Schedule.

 

[1 ]For the details as to disqualification see Old Age Pensions Act, 1908, sect. 3, and Old Age Pensions Act, 1911, sect. 4.

[2 ]Sect. 3, sub-sect. 1 (c), and sub-sect. 2.

[3 ]Sect. 3, sub-sect. 1 (b).

[1 ]Students who need information on the details of the Act should consult the Law relating to National Insurance, by G. H. Watts.

[2 ]The mode in which the cost of health insurance and unemployment insurance is in part undertaken by the State, and in part imposed upon employers and upon the workmen or servants who are insured, has a socialistic character. But this feature in the Insurance Act has been amply noticed, and it is hardly worth while here to insist upon it.

[3 ]As amended by the National Insurance Act, 1913, and applied by numerous regulations.

[4 ]An alien does not in all cases get the same advantage from insurance as a British subject. See Act, sect. 45, and Watts, National Insurance, pp. 45, 46.

[5 ]See Act, Part I. sects. 1-83.

[6 ]Ibid. sect. 84, and Sixth Schedule.

[1 ]For unemployment insurance see Part II. sects. 84-107.

[2 ]E.g. by the fact that the Act does not in general, at any rate as to health insurance, benefit any one who has an income of £160 a year and upwards, though it does apply to any person who by way of manual labour earns an income however large, e.g. £200 a year. See First Schedule, Part II. (g), and Watts, National Insurance, p. 280.

[1 ]See sect. 65, proviso.

[2 ]Sect. 69, sub-sect. 2. Compare further as to legislative powers of the Commissioners, Act, sects. 7, 15, 27, and Insurance Act, 1913, sect. 19.

[1 ]See sect. 91.

[2 ]See sect. 103, and Sixth Schedule. Nor does the proviso to sect. 103 materially restrict the power of the Government to make an order including a new trade, unless indeed it should happen that the person holding an inquiry with relation to the order reports that the order should not be made.

[3 ]See sect. 113 as to the necessity of the order being laid before either House of Parliament.

[4 ]See sects. 66, 67. Compare, however, Regulations of June 5, 1912, in App. I., Watts, p. 299.

[5 ]“All claims for unemployment benefit under this part of this Act, and all questions whether the statutory conditions are fulfilled in the case of any workman claiming such benefit, or whether those conditions continue to be fulfilled in the case of a workman in receipt of such benefit, or whether a workman is disqualified for receiving or continuing to receive such benefit, or otherwise arising in connection with such claims, shall be determined by one of the officers appointed [under Part II.] of this Act for determining such claims for benefit (in this Act referred to as ‘insurance officers’).” Act, sect. 88 (1).

[1 ]Act, sect. 88, proviso (a). There are about seventy such Courts constituted under the Act.

[2 ]See Act, sect. 90, and Parliamentary Paper (B 16).

[1 ]See, as to French droit administratif, Law of the Constitution, ch. xii.

[2 ]The number of claims to unemployment benefit may vary from, e.g., 20,000 to 40,000 claims in each week, involving payments at the rate of seven shillings for each week of unemployment.

[1 ]See sect. 87 (1), and as to the claim made by workmen to unemployment benefit during a strike, the Times, January 27, 30, and February 3, 1914. The insurance officer in this case did not allow the claim, and his decision was, rightly it would seem, upheld by the Court of Referees. Note further that from an insurance officer’s decision in favour of a claim by a workman to unemployment benefit there is no appeal.

[1 ]Sect. 4 (1). I have purposely criticised the Trade Disputes Act solely with reference to this enactment. Sections 1, 2, and 3 are (it is submitted) based on an erroneous principle, but one’s judgment of the Act must depend upon one’s approval or condemnation of sect. 4.

[2 ]Whether an action might not be maintained against trustees of the Union? (see Linaker v. Pilcher (1901), 17 T.L.R. 256). But the funds could not be got at if the tort was committed in contemplation or furtherance of a trade dispute.

[3 ]Vacher v. London Society of Compositors [1913], A.C. 107. He might possibly vindicate his character by bringing an action against the actual publisher, e.g. a penniless printer, from whom he could recover neither damages nor the costs of the action.

[1 ]My learned friend, Professor Geldart, who is one of the ablest and the fairest of the commentators upon our Combination law, and who does not agree with most of my strictures upon the Trade Disputes Act, has expressed his opinion that the enactment in question (i.e. sect. 4, sub-sect. 1) is “contrary to justice and expediency.” (See the Times, March 18, 1912.)

[2 ]See the Trade Union Act, 1913, sect. 2, for a new definition of trade union and for power of Registrar of Friendly Societies to register a combination as a trade union, and to give a conclusive certificate that a trade union is a trade union within the meaning of the Act.

[1 ]Pollock, Law of Torts (8th ed.), p. v.

[2 ]See pp. 266-273, post.

[3 ]The position of an unregistered union is not quite clear.

[4 ]Amalgamated Society of Railway Servants v. Osborne [1909], A.C. 87.

[5 ]The Act of 1913 not only authorises trade unions under considerable restrictions to pursue political objects, but authorises them without any restriction to devote their funds to any other lawful objects whatever. In the pursuit of these objects they would be entitled to the immunity given them by the Trade Disputes Act, 1906, sect. 4, from actions for torts.

[1 ]Trade Boards Act, sect. 1.

[2 ]Ibid. sect. 4.

[3 ]Ibid. sect. 1, sub-sect. 2.

[4 ]I have purposely omitted details as to the mode in which minimum wages are to be fixed by law. For my present purpose the importance of any Minimum Wage Act is the admission of Parliament that wages can rightly be fixed by law and not by the mere haggling of the market.

[1 ]See Act, 1906, sect. 3.

[2 ]Ibid. sect. 4.

[1 ]See pp. 220-240, post.

[2 ]See Act, 1908, sect. 7.

[1 ]Compare Bernard Mallet, British Budgets, 1887-1913, Preface, p. vii.

[1 ]A critic should never forget that the truth of a belief is not necessarily demonstrated by its wide acceptance. Half the history of human thought is the tale of human errors. The belief that a crusade by Christians for the recovery of the Holy Land and the Holy Sepulchre was commanded by reverence for Christ was entertained for centuries in the leading countries of Europe, and by the best and wisest of men. This faith was at best a generous delusion. The Crusaders, it has been well remarked, sought for the living among the dead.

[2 ]This interdependence is, I believe, at bottom the meaning of the technical expression “solidarity” which, with writers such as Duguit, is an almost sacramental term.

[1 ]See p. xxvii., ante.

[2 ]Mill qualifies, or rather extends, his simple principle by the remark that, where he talks of conduct which affects only a man himself, he means conduct which affects “only himself . . . directly, and in the first instance.” Mill thereby all but admits that hardly any conduct of a human being can be named (except conduct which does not go further than the realm of thought) which, strictly speaking, affects “only himself.” See Mill, On Liberty, p. 26.

[1 ]See Leslie Stephen, English Thought in the Eighteenth Century, ch. xii. pp. 409-425.

[2 ]Lecky, History of England in the Eighteenth Century, ii. ch. ix. pp. 635-638.

[1 ]See an admirable letter by the Dean of Durham, Times, November 27, 1913.

[1 ]See Benjamin Kidd, Social Evolution, and compare “Political Prophecy and Sociology,” in Miscellaneous Essays and Addresses, by H. Sidgwick, p. 216.

[1 ]Such easy-going confidence on the part of ordinary Englishmen in the infinitely small effect of legislation, whether good or bad, may be pardoned when we reflect that a systematic thinker such as Herbert Spencer, in many of his strictures on the failure of legislation to achieve its avowed object, makes far too little allowance for the long latent period which often elapses before results appear. See W. Bateson, Biological Fact and the Structure of Society, p. 28 (n.).

[1 ]See Lect. III. pp. 48-61, post.

[1 ]See Pic, Les Lois Ouvrières (3rd ed.), sects. 1404-1411.

[2 ]Ibid. sects. 1077-1138; law, April 9, 1898; law, July 18, 1907.

[3 ]Ibid. sects. 777, 808, 825.

[4 ]See p. xlix, ante.

[1 ]Rachat des chemins de fer de l’ouest, law, July 13, 1908. See Duguit, Droit Constitutionnel, i. p. 428.

[1 ]Successful Profit-Sharing, by Charles W. Eliot, President Emeritus of Harvard University.

[2 ]See the Guardian, November 7, 1913, p. 1398, Sermon by the Dean of Durham.

[1 ]Sir Alfred Lyall inferred from Tocqueville’s writings that it was the prosperity and the enlightenment of the French people that produced the great crash of the Revolution.

[2 ]As to the meaning of counter-currents and cross-currents of opinion see Lect. X. p. 311, post.

[3 ]For the meaning of collectivism see p. 64, post.

[4 ]Prophecy is the vainest of pursuits, but a thoughtful reader should bear in mind that, while on the one hand guesses as to the future course of social development are of no value unless they are grounded upon actually observed facts, yet on the other hand a forecast of what is likely to happen is a legitimate kind of argument if, in spite of its predictive form, it is an analysis of existing and observable tendencies.

[1 ]See p. 146, post.

[2 ]See p. 176, post.

[1 ]See Public Opinion and Popular Government, by A. Lawrence Lowell. This book contains the most subtle analysis of public opinion and the best account known to me of its relation to popular government.

[1 ]Hillquit, Socialism in Theory and Practice, p. 120.

[1 ]See Duguit, L’État, le droit objectif et la loi positive, p. 49.

[1 ]The whole revenue of the United Kingdom, including revenue arising from non-tax sources, such, e.g. as the postal service, and the receipts from the Suez Canal Shares, has been stated for the same years as follows:

1908-1909 £151,578,295
1909-1910 131,696,456
1910-1911 203,850,587
1911-1912 185,090,285
1912-1913 188,802,000

See Finance Accounts of the United Kingdom, 1912-1913, and Whitaker’s Almanack, 1914, p. 500.

 

[2 ]In 1885-1886 the persons subject to income-tax paid £15,160,000; in 1912-1913 they paid £44,806,000. The tax has increased by more than £29,500,000. Nor is there the least reason to expect the least diminution in the weight of taxation. The notice officially sent round to tax-payers estimates the national expenditure for 1913-1914 at £195,640,000.

[1 ]Of course this is true also of the inhabitants of Scotland and Ireland, who also pay their share of the taxes imposed on the tax-payers of the United Kingdom. But as I am dealing with the law and the public opinion of England, it in many ways simplifies the treatment of my subject if we confine ourselves as much as possible to laws affecting Englishmen.

[2 ]See for the nature and number of local authorities who can impose Public Rates, Local Taxation Returns, 1910-1911, Part VII., Summary, p. 3. The number of such separate local authorities in the year 1910-1911 were 25,614. The year 1910-1911 is the last for which returns have been furnished.

[1 ]The public rates raised in England for the years 1907-1911 were: 1907-1908, £59,627,577; 1908-1909, £61,218,203; 1909-1910, £63,261,164; 1910-1911, £65,073,131.

[2 ]See p. lxxxiii, note 1, ante.

[3 ]The apparent lightening of the burden for the year 1909-1910 was due to the dispute of the two Houses over the Budget, and its rejection by the House of Lords. A large amount of taxes was not then collected, within the financial year 1909-1910; but it swelled the amount collected in the following year.

[4 ]It will be observed that between 1907-1908 and 1910-1911 the rates have risen by more than £5,445,550.

[1 ]See Industrial Unrest and Trade Union Policy, by Charles Booth, pp. 15-21.

[1 ]Englishmen of the twentieth century can hardly believe in the wildness of the hopes originally excited by the French Revolution. The shortest and by far the most impressive picture of the boundless expectations “of better days to all mankind” formed by men of sense and judgment is to be found in Books IX-XI of Wordsworth’s Prelude.

[1 ]Tarde, Les Transformations du pouvoir, p. 258. “Toute politique qui se propose le triomphe exclusif d’une classe ou d’une caste, fût-ce de la classe ou de la caste la plus nombreuse et la plus déshéritée, est rétrograde au premier chef. Un parti socialiste peut être dans le grand courant du progrès; un parti ouvrier non.”

[1 ]A. L. Lowell, Public Opinion and Popular Government, p. 295.

[2 ]Successful Profit-Sharing, by Charles W. Eliot. The same view seems to me practically adopted in Industrial Unrest and Trade Union Policy, by Charles Booth.

[1 ]Economic Liberalism, by Hermann Levy, Ph.D., p. 124.

[1 ]Souvenirs d’Alexis de Tocqueville (Paris, 1893), pp. 111 and 112.

“Will socialism remain buried in the disdain with which the socialists of 1848 are so justly covered? I put the question without making any reply. I do not doubt that the laws concerning the constitution of our modern society will in the long run undergo modification; they have already done so in many of their principal parts. But will they ever be destroyed and replaced by others? It seems to me to be impracticable. I say no more, because—the more I study the former condition of the world and see the world of our own day in greater detail, the more I consider the prodigious variety to be met with not only in laws, but in the principles of law, and the different forms even now taken and retained, whatever one may say, by the rights of property on this earth—the more I am tempted to believe that what we call necessary institutions are often no more than institutions to which we have grown accustomed, and that in matters of social constitution the field of possibilities is much more extensive than men living in their various societies are ready to imagine.”—Recollections of Alexis de Tocqueville, English translation, by de Mattos, pp. 100, 101.

Last modified April 10, 2014