Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century

Lecture IV. The Three Main Currents of Public Opinion

lecture iv The Three Main Currents of Public Opinion the nineteenth century falls into three periods, during each of which a different current or stream of opinion was predominant, and in the main governed the development of the law of England. I. The Period of Old Toryism or Legislative Quiescence (1800–1830)1 This was the era of Blackstonian optimism reinforced, as the century went on, by Eldonian toryism or reaction; it may be termed the period of legislative quiescence, or (in the language of censors) stagnation. Political or legislative changes were first checked by that pride in the English constitution , and intense satisfaction with things as they were, which was inherited from a preceding generation, and is best represented by the studied optimism of Blackstone; they were next arrested by that reaction against Jacobinism and revolutionary violence which is represented by the legislative timidity of Lord Eldon; he devoted his great intellectual powers (which hardly receive justice from modern critics) at once to the cautious elaboration of the doctrines of equity, and to the obstruction of every other change or improvement in the law. The reactionary character of this period increased rather than diminished as the century advanced. The toryism of 1815 or 1817 was less intelligent and more violent than the toryism of 1800. 1. See R. K. Wilson, Modern English Law, chap. iii., and Lect. V., post. It is for our present purpose convenient to treat 1800, in accordance with popular phraseology , as belonging to the nineteenth century. 46 / Lecture IV Laws2 passed during this period, and especially during the latter part thereof, assumed a deliberately reactionary form, and were aimed at the suppression of sedition, of Jacobinism, of agitation, or of reform. But though it is easy to find examples of reactionary legislation, the true characteristic of the time was the prevalence of quiescence or stagnation. Optimism had at least as much to do with the condition of public sentiment as had the dread of revolutionary propagandism. II. The Period of Benthamism or Individualism (1825–1870)3 This was the era of utilitarian reform. Legislation was governed by the body of opinion, popularly, and on the whole rightly, connected with the name of Bentham.4 The movement of which he, if not the creator, was certainly the prophet, was above all things a movement for the reform of the law. Hence it has affected, though in very different degrees, every part of the law of England. It has stimulated the constant activity of Parliament, it has swept away restraints on individual energy, and has exhibited a deliberate hostility to every historical anomaly or survival, which appeared to involve practical inconvenience, or in any way to place a check on individual freedom. III. Period of Collectivism (1865–1900)5 By collectivism is here meant the school of opinion often termed (and generally by more or less hostile critics) socialism, which favours the in2 . E.g. the great Combination Act, 1800, 40 Geo. III. c. 106; the Act of 1817, 57 Geo. III. c. 19, for the prevention of seditious meetings. 3. See Lecture VI., post. 4. In the whole field of economics Adam Smith and his disciples exerted a potent influence , but it is not necessary for our purpose to distinguish between the influence of jurists and the influence of economists: they both represented the individualism of the time. 5. See Lects. VII.–IX., post. Murray’s Dictionary gives no authority for the use of the word collectivism earlier than 1880. It is there defined as “the socialistic theory of the collective Three Main Currents of Public Opinion / 47 tervention of the State, even at some sacrifice of individual freedom, for the purpose of conferring benefit upon the mass of the people. This current of opinion cannot, in England at any rate, be connected with the name of any one man, or even with the name of any one definite school. It has increased in force and volume during the last half of the nineteenth century , nor does observation justify the expectation that in the sphere of legislation, or elsewhere, its strength is spent or its influence on the wane. The practical tendencies of this movement of opinion in England are best exemplified in our labour laws, and by a large amount of legislation which, though it cannot be easily brought under one...