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

Lecture II. Characteristics of Law-making Opinion in England

lecture ii Characteristics of Law-making Opinion in England let it be here noted once for all that these lectures have a very precise and limited scope; they are primarily concerned with public opinion only during the nineteenth century; they are concerned, directly at least, even for this period, only with that kind of public opinion which, since it has told on the course of legislation, may with strict propriety be called lawmaking or legislative public opinion, and is recorded either in the statutebook , which contains the laws enacted by Parliament, or in the volumes of the reports, which contain the laws indirectly but not less truly enacted by the Courts.1 The limited aim of these lectures explains, in the first place, why it is that I have attempted only a very general or broad account of different schools of opinion, e.g. either of individualism or of socialism;2 fine and subtle distinctions, such as the speculative differences which divide the absolute individualism of Herbert Spencer on the one hand, from the practical or utilitarian individualism of J. S. Mill and H. Sidgwick on the other, have not materially affected legislation; they are therefore appropriate rather to a work dealing with political philosophy, than to lectures on the relation between the actual current of opinion and actual legislation in England during a given period, and may be dismissed from our consideration . The limited scope of these lectures explains, in the second place, why it is that they contain nothing about the extreme forms either of individualism or of socialism. Extreme and logically coherent theorieshave, during the nineteenth century, exerted no material effect on the law of 1. As to judicial legislation and public opinion, see Lect. XI., post. 2. In these lectures generally termed “collectivism.” See Lect. IV. p. 46, post. Characteristics of Law-making Opinion / 15 England. It is moderate, though it may be inconsistent individualismalone, as it is moderate, though it may be inconsistent socialism alone, which has told upon the making of English laws, and which therefore can claim to be legislative public opinion. With the individualism which all but demands the abolition of the national Post Office we need trouble ourselves as little as with the socialism which advocates the nationalisation of the land. When we talk of legislative public opinion we should not forget that such opinion may bear a merely negative character, and operate not by making laws but by forbidding their enactment. It is, in short, a force which may act either, as it does nowadays, in favour of innovation, or, as it did in the early part of the nineteenth century, in favour of conservatism. In England, indeed, periods of legislative activity have always been exceptional . They may be reduced to four, namely, the era of Edward I., the age of the Tudors, the period of the Restoration, and the years which, commencing a little before, have followed the Reform Act of 1832. Nor need the fact that the absence of energetic legislation has been emphatically the rule, not the exception, cause us surprise. In any country which is governed in accordance with the wishes of its inhabitants there will in general exist no effective desire for change. And this is a consideration worth notice, since the legislative activity which has more or less prevailed for the last seventy years produces among Englishmen the delusion that popular sentiment always favours vigorous legislation. The experience, at any rate, of democratic countries where the constitution provides a regular mode of appeal from the legislature to the people, proves that the voice of the people may be just as ready to check as to stimulate the energy of parliamentary law-makers. It is at least possible that in England the legislative activity of Parliament may again decrease and the country enter upon another period of legislative inertia. However this may be, public legislative opinion, as it has existed in England during the nineteenth century, presents several noteworthyaspects or characteristics. They may conveniently be considered under five heads— the existence at any given period of a predominant public opinion; the origin of such opinion; the development and continuity thereof; the checks imposed on such opinion by the existence of counter-currents and crosscurrents of opinion; the action of laws themselves as the creators of legislative opinion. 16 / Lecture II First, There exists at any given time...