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

Lecture X. Counter-Currents and Cross-Currents of Legislative Opinion

lecture x Counter-Currents and Cross-Currents of Legislative Opinion we have hitherto traced the connection between the development of English law and different dominant currents of opinion.1 To complete our survey of the relation between law and opinion, we must now take into account the way in which the dominant legislative faith, and therefore the legislation, of a particular time may be counteracted or modified either by the existence of strong counter-currents or cross-currents of opinion,2 or by the difference between parliamentary and judicial3 legislation. Concerning counter-currents little need here be said. The topic has been amply illustrated in the foregoing pages. The story of Benthamite liberalism is specially instructive; the increasing force of liberalism was long held in check by the survival of old toryism; the authority of liberalism, when it had become the legislative faith of the day, was diminished by the gradually rising current of collectivism. To the effect produced by cross-currents of opinion which, as already noted,4 deflect the action of the reigning legislative faith from its natural course, little attention has been directed in these lectures, yet the topic deserves careful consideration. The influence of such cross-currents, operating as it does in an indirect and subtle manner, often escapes notice, 1. See pp. 45–214, ante. 2. See pp. 27–30, ante. 3. See Lecture XI., post. Logically the results of this difference are merely an illustration of the effect produced by a particular cross-current of opinion, namely, the legislativeopinion of the judges, but the distinctions between the legislative opinion of Parliament and the legislative opinion of the Courts, and the way in which these two kinds of opinion act and react upon one another, is so noteworthy as to deserve separate consideration. 4. See pp. 29, 30, ante. 222 / Lecture X and is always somewhat hard to appreciate. The easiest method whereby to render the whole matter intelligible is to trace out the way in which such a cross-current has told upon the growth of some particular part of the law. For this purpose no branch of the law of England better repays examination than the ecclesiastical legislation of the years which extend from the era of the Reform Act (1830–32) to the close of the nineteenth century; for this legislation is affected at every turn on the one hand by the liberalism of the time, which aims at the establishment of religious equality, i.e. at the abolition of all political or civil privileges or disabilities dependent upon religious belief, and on the other hand by the cross-current of clerical, or rather ecclesiastical, opinion, which desires to maintain the rights or privileges of the Established Church, and demands deference for the convictions or the sentiments of the clergy and of churchmen. To see that this is so, let us, in regard to matters which can be termed ecclesiastical, in a wide sense of that word, examine first the course—that is, both the current and the cross-current, of legislative opinion from 1830 to 1900, and next the legislation to which this course of opinion has in fact given rise. A. The Course of Legislative Opinion In 1832 the passing of the Reform Act seemed to prove that any institution, however venerable, might be called upon to show cause for its existence, and, in default of a popular verdict in its favour, would undergo drastic amendment or revolutionary destruction. In these circumstances no one among all the ancient institutions of the country was, to outward appearance , more open to attack, and less capable of defence, than the United Church of England and Ireland.5 The policy of the popular leaders, whether Whigs or Benthamites, was essentially secular and anti-clerical.6 The Whigs had always been the cool 5. It is well to remember that the Established Church of England was in 1832 indissolubly united with the Irish Church Establishment. 6. The legislative opinion of the day since 1830, except in so far as it has been modified by the opinion of the clergy or of churchmen, has assuredly been anti-clerical, at any rate to this extent, that it has been opposed to the maintenance of Church privileges, as well as Counter-Currents and Cross-Currents of Opinion / 223 friends, if not the foes, of the clergy...