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

Contents

Contents Introduction to the Liberty Fund Edition, by Richard VandeWetering xiii Editor’s Note xxiii Preface to the First Edition xxv Preface to the Second Edition xxix lecture i. Relation between Law and Public Opinion Law not always the result of public opinion 3 (i.) Law may be the result of custom 5 (ii.) Opinion governing law may not be public opinion 5 (iii.) Want of legislative organ representing public opinion 6 Law in modern England the result of public opinion 8 How far law-making public opinion is always the opinion of the sovereign power 9 Objection considered, that in legislation men are guided not by their opinion but by their interest 10 lecture ii. Characteristics of Law-making Opinion in England Precise scope of lectures 14 Characteristics of English legislative opinion 15 (1) Existence at any given time of predominant current of legislative opinion 16 vi / Contents (2) Legislative opinion may originate with thinker or school of thinkers 17 (3) Development of legislative opinion in England slow and continuous 21 Slowness 21 Continuity 24 (4) Dominant legislative opinion never despotic 27 (5) Laws create legislative opinion 30 lecture iii. Democracy and Legislation Does not advance of democracy explain development of English law since 1800? 36 The plausibility of idea suggested by question 36 Advance of democracy only to slight extent explanation of development of English law 37 Delusion that democratic form of government always favours same kind of legislation 40 lecture iv. The Three Main Currents of Public Opinion Three main currents of legislative opinion corresponding to three periods 45 I. The period of old Toryism or legislative quiescence (1800–1830) 45 II. Period of Benthamism or Individualism (1825–1870) 46 III. Period of Collectivism (1865–1900) 46 Observations on the three different currents of opinion 47 (i.) Number of years during which each current of opinion predominant 47 (ii.) Different relation of each current of opinion to legislation 48 (iii.) Peculiar difficulty presented by examination into character and influence of Collectivism 48 Contents / vii lecture v. The Period of Old Toryism or Legislative Quiescence (A) State of Opinion 51 Optimism— Blackstone—Burke—Paley—Goldsmith Reaction— Eldon (B) Absence of changes in law 60 Abuses 62 Legal fictions and survivals 66 (C) Why considerable changes took place during period of quiescence 68 Reactionary laws 68 Combination Act, 1800 The Six Acts, 1819 Reforms 75 Act of Union with Ireland Humanitarian reforms—Health and Morals Act, 1802 (D) Close of period of quiescence 80 (1) Change in social conditions of England 81 (2) Incongruity between social condition and legal institutions of England 83 (3) Lapse of time 88 (4) Existence of Benthamism 89 lecture vi. The Period of Benthamism or Individualism Bentham’s genius 91 (A) Benthamite ideas as to the reform of the law 96 The principles of law reform 96 I. Legislation is a science 97 II. The right aim of legislation is the carrying out of the principle of utility 98 III. Every person is in the main the best judge of his own happiness 104 viii / Contents Corollaries— (i.) Extension of sphere of contract 107 (ii.) Every man to count for one and no man for more than one 113 The method of law reform 117 (B) The acceptance of Benthamism 119 Why did Benthamism obtain acceptance? 120 General answer 120 Benthamism furnished reformers with ideal and programme Special answers 122 Benthamism met wants of day Utilitarianism the creed of the time Benthamism fell in with English Conservatism Benthamism is only systematised Individualism To what extent did Benthamism obtain acceptance? 126 Answer 126 Acceptance all but universal (C) Trend and tendency of Benthamite legislation 131 The congruity of Benthamite legislation; its objects 131 Transference of political power to middle class 131 Parliamentary Reform Act, 1832 Municipal Reform Act, 1836 Humanitarianism 133 Mitigation of criminal law Prohibition of cruelty to animals Emancipation of slaves Extension of individual liberty 135 Freedom of contract Combination Acts, 1824, 1825 Companies Acts, 1856–1862 Freedom in dealing with property in land Poor Law Act, 1834 Freedom of opinion or discussion Extension of Toleration Act to Unitarians, 1813 Roman Catholic Relief Act, 1829 Oaths Acts Contents / ix Adequate protection of rights 146 Evidence Acts, 1833–1898 County Courts Acts, 1846–1888 Procedure Acts, 1851–1862 Judicature Acts, 1873–1894 Benthamite reform an illustration...