A Selection of Works on Politics

THE AMERICAN COMMONWEALTH. By Viscount Bryce. New Edition. Completely revised. Two vols. 8vo. 25s. net.

NOTES ON POLITICS AND HISTORY. By Viscount Morley. 8vo. 3s. net.

THE GOVERNMENT OF ENGLAND. By Prof. A. Lawrence Lowell. New Edition, thoroughly revised. Two vols. 8vo. 21s. net.

THE RISE AND PROGRESS OF THE ENGLISH CONSTITUTION. By Sir Edward Creasy, M.A. Seventeenth Edition. Crown 8vo. 4s. 6d. net.

ANALYSIS OF THE SYSTEM OF GOVERNMENT THROUGHOUT THE BRITISH EMPIRE. 8vo. 5s. net.

MODERN EGYPT. By the Earl of Cromer. With Portrait and a Map. Two vols. 8vo. 24s. net. One vol. 8vo. 10s. net.

ADMINISTRATIVE PROBLEMS OF BRITISH INDIA. By Joseph Chailley. Translated by Sir William Meyer. 8vo. 12s. 6d. net.

INDIAN UNREST. By Sir Valentine Chirol. With an Introduction by Sir Alfred Lyall. 8vo. 5s. net.

THE BROAD STONE OF EMPIRE. Problems of Crown Colony Administration. With Records of Personal Experience. By Sir Charles Bruce, G.C.M.G. With Maps and Portraits. Two vols. 8vo. 30s. net.

FRANCE. By John Edward Courtenay Bodley. Extra Crown 8vo. 10s. net.

LONDON: MACMILLAN AND CO., Ltd.

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.

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.

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

Tocqueville, Souvenirs, p. 111.

See pp. 211-302, post.

Mill, On Liberty, pp. 21 and 22.

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.

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.

See pp. 211-302, post

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

See pp. 259-279, post.

The scale is as follows:

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

See sects. 1, 2, and Schedule.

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

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

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

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

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.

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

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.

See Act, Part I. sects. 1-83.

Ibid. sect. 84, and Sixth Schedule.

For unemployment insurance see Part II. sects. 84-107.

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.

See sect. 65, proviso.

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.

See sect. 91.

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.

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

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

“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).

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

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

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

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.

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.

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.

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.

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.

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.)

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.

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

See pp. 266-273, post.

The position of an unregistered union is not quite clear.

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

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.

Trade Boards Act, sect. 1.

Ibid. sect. 4.

Ibid. sect. 1, sub-sect. 2.

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.

See Act, 1906, sect. 3.

Ibid. sect. 4.

See pp. 220-240, post.

See Act, 1908, sect. 7.

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

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.

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.

See p. xxvii., ante.

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.

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

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

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

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

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.).

See Lect. III. pp. 48-61, post.

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

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

Ibid. sects. 777, 808, 825.

See p. xlix, ante.

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

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

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

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.

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

For the meaning of collectivism see p. 64, post.

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.

See p. 146, post.

See p. 176, post.

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.

Hillquit, Socialism in Theory and Practice, p. 120.

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

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:

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

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.

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.

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.

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.

See p. lxxxiii, note 1, ante.

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.

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

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

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.

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.”

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

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.

Economic Liberalism, by Hermann Levy, Ph.D., p. 124.

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.

“Opinion rules everything.” Napoleon, cited in Life by Fournier, Eng. trans. vol. ii. p. 446.

Hume, Essays, vol. i., Essay iv. p. 110: Green and Grose.

See Roman Catholic Relief Act, 1829, ss. 28-36. These enactments (which do not apply to religious orders of women, ibid. s. 37) have never been enforced.

So the Ecclesiastical Titles Act, 1851, prohibiting the assumption of ecclesiastical titles, is a record of popular panic caused by Papal aggression, whilst the absolute non-enforcement, and the subsequent repeal of the Act in 1871, mark the tolerant spirit of Parliament.

Hume, Essays, vol. i. Essay vii. p. 125.

As to judicial legislation and public opinion, see Lect. XI., post.

In these lectures generally termed “collectivism.” See Lect. IV. p. 64, post.

Peel in a letter to Croker (March 23, 1820) describes public opinion as “the tone of England—of that great compound of folly, weakness, prejudice, wrong feeling, right feeling, obstinacy, and newspaper paragraphs, which is called public opinion.” See Thursfield’s Peel, p. 19.

Compare Macaulay’s essay on “Gladstone on Church and State.”

Mill, On Liberty, p. 119.

It may very well, owing to the condition of the world, and especially to the progress of knowledge, present itself at the same time to two or more persons who have had no intercommunication. Bentham and Paley formed nearly at the same date a utilitarian system of morals. Darwin and Wallace, while each ignorant of the other’s labours, thought out substantially the same theory as to the origin of species.

To take an historic instance of world-wide celebrity, it is certain that the destruction of Jerusalem must have done at least as much as Pauline or other teaching towards winning over to Christianity Jews or Jewish proselytes.

Written 1898. Carlyle was in 1846 a convinced Free Trader. He thought he had found his strong man in Peel. The Repeal of theCorn Laws seemed to prove it. “Whatever,” said he, “were the spoken unveracities of Parliament—and they are many on all hands, lamentable to Gods and men—here has a great veracity been done in Parliament, considerably our greatest for many years past; a strenuous, courageous, and needful thing.” Cromwell’s Letters and Speeches, Firth’s Introduction, p. xlix.

It has been argued, by critics entitled to respect, that Cobden, when he entered into a commercial treaty with France, compromised, for the sake of a limited extension of free trade, the principles on which alone free trade admits of complete defence. Cobden was a keen logician, and more nearly a systematic thinker than most politicians; this criticism, therefore, on the treaty with France, if it be to any extent sound, affords a striking example of the slight effect which the abstract arguments against protection might produce on the mind even of a leading free trader.

See Anson, Law and Custom of the Constitution, Part I. Parliament (3rd ed.), pp. 96, 97.

See for list of Factory Acts, extending from the Health and Morals Act, 1802, 42 Geo. III. c. 73, to the Factory and Workshop Act, 1901, 1 Edw. VII. c. 22, Hutchins and Harrison, History of Factory Legislation, p. 323.

The best specimen of consolidation to be found in the statute-book.

To appreciate to the full the nature of this method one must remember that the sphere of municipal government has to a great extent been moulded by a vast number of private bills. See Clifford, Private Bill Legislation.

Nor does the apparent suddenness of the revolution in public sentiment at the time of the Restoration afford any real exception to the rule here laid down.

See Lect. VI., post.

Quaritch’s Catalogue, No. 250, p. 84, contains a copy of Bentham on Usury, dated 1787.

One, though of course merely a minor, reason for the violence exhibited by the revolutionary legislation of the National Assembly was, it is said, that the leaders of that body were comparatively young men.

See Lect. X., post.

See Mill, Autobiography, p. 204.

A legislative innovation demanded by the opinion of a particular time may of course be of a reactionary character, and may be resisted and deferred by the strength of a counter-current of liberal opinion.

If any one doubts this statement let him consider one fact, and ask himself one question. In 1834 the Whigs and Radicals who reformed the poor law expected the speedy abolition of out-door relief; they hoped for and desired the abolition of the poor law itself. Do the Radicals of 1905 share these expectations and hopes?

Life of Sir William Molesworth, by Mrs. Fawcett, LL.D., p. 81.

Cross-currents of opinion, as also the predominant public opinion of a given time, may, it is true, be found, on careful examination, to be due to some general or common cause. Whether this be so or not is a question to be answered by the historian of opinion, but does not immediately concern a student occupied in ascertaining the relation between law and opinion. He accepts the existence of a cross-current of opinion as a fact, and devotes his attention to ascertaining the mode in which the influence on legislation of the general current of public opinion was thereby modified.

A law which obviously fails in attaining its end may at times turn public opinion against the principle on which the law rests.

If whipping does not suppress theft, let it be turned into severe flogging; if this be not enough, add exposure in the pillory; and if this will not do, try capital punishment. This is the sort of argument which, as long as men believed in the principle that severity of punishment is the best mode of hindering crime, continually increased the cruelty or harshness of our criminal law.

Contrast Scott’s satisfaction at taking a Russian prince to Selkirk in 1826 “to see our quiet way of managing the choice of a national representative” (Scott, Journals, July 1, 1826) with the comments thereon of modern Liberals. Scott could not see that a system of representation which, formally at any rate, misrepresented the Scotch people could not, even though in some ways it worked well, be permanently maintained. Modern critics cannot see that a system of representation, which contradicted the most elementary principles of democracy, did in Scotland, at the beginning of the nineteenth century, in many respects work well, and, even, strange though the statement sounds, give effect to the wishes of the Scotch people. See Porritt. The Unreformed House of Commons, chap. xxxi.

See Hansard, vol. clxix. p. 1305.

The word “tentative” is too complimentary Parliament favours gradual legislation not from the desire, which would often be wise, to try an experiment in legislation by applying a wide principle to a very limited extent, e.g. within a small area, but from failure to perceive that a law which produces at the moment a very limited effect may involve the recognition of a principle of unlimited application. Indolence and ignorance, rather than any desire for scientific experiment, are the causes of hand-to-mouth legislation.

The whole parliamentary grant for education in the United Kingdom in 1834 was less than a third of what was granted annually by the single State of Massachusetts with a population of less than a million. See Life of Sir William Molesworth, pp. 55, 56.

In dealing with laws as the creators of opinion, I have, for the sake of clearness, referred only to laws enacted by Parliament, but it is certain that judicial legislation affects opinion quite as strongly as does parliamentary legislation. See “Judicial Legislation,” Lecture XI., post.

“The development of political ideas is influenced in a different way by their connection with political facts. The ideas are related to the facts of political history, not only as effect to cause, but also as cause to effect.”—H. Sidgwick, Development of European Polity. p. 346.

See Lecture III., post.

See Lectures IV. to IX., post.

See this stated forcibly, though with great exaggeration, Ostrogorski, Democracy and Organization of Political Parties, chap. i.

The Representation of the People Act, 1884, 48 Vict. c. 3; the Redistribution of Seats Act, 1885, 48 & 49 Vict. c. 23.

The Chandos clause, introduced into the Reform Act by the Tory Opposition, but supported by some Radicals, gave a vote in the counties to tenants from year to year, mainly tenant farmers, paying a yearly rent of £50. This clause increased the number of voters, and seemed, therefore, democratic; but as such tenant farmers were dependent on their landlords, it really increased the power of the land-owners, and robbed the counties of their independence. It was supported, however, by democrats, who did not perceive the real tendency of the so-called amendment.

See p. 7, ante. Note that divorce has with great difficulty been established in France; though existing under the First Republic and the Empire, it was abolished in 1816, and not again legalised till 1884.

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.

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.

See Lecture VI., post.

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.

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 ownership or control of all the means of production, and especially of the land, by the whole community or State, i.e. the people collectively, for the benefit of the people as a whole.” H. Sidgwick, in his Elements of Politics (2nd ed.), p. 158, uses the word to denote an extreme form of socialism. These are not exactly the meanings given to collectivism in these lectures. It is used as a convenient antithesis to individualism in the field of legislation. This use appears to be etymologically correct, and to be justified by the novelty and vagueness of the term. The very indefiniteness of the expression collectivism is for my purpose a recommendation. A person may in some respects be a collectivist,—that is to say, entertain views which are not in harmony with the ideas of individualism,—and yet not uphold or entertain any general belief which could fairly be called socialism; but though the vague term collectivism is for my present purpose preferable to socialism, I shall on occasion use the more popular and current expression socialism as equivalent to collectivism.

An early example of such influence may be found in the Metropolitan Commons Act, 1866. It reversed that policy of breaking up commons which met with the enthusiastic approval of Bentham. See Bentham, Works, i. p. 342.

See Lect. VIII., post.

Workmen’s Compensation Act, 1897, 60 & 61 Vict. c. 37; 1900, 63 & 64 Vict. c. 22.

The distaste for legal changes which prevailed between 1800 and 1830 is distinctly traceable in part at least to the condition of opinion between 1760 and 1800.

Birth 1723; publication of Commentaries, 1765-69; death 1780.

Blackstone, Commentaries, iv. p. 443 (end of Book iv.).

Burke, ii. p. 169. See also Appeal from the New to the Old Whigs, Burke, vi. pp. 263-265; Hallam, Middle Ages, ii. (12th ed.) p. 267; and Goldsmith, Works, iii., Citizen of the World, Letter iv.

“If you should see a flock of pigeons in a field of corn; and if (instead of each picking where, and what it liked, taking just as much as it wanted, and no more) you should see ninety-nine of them gathering all they got into a heap; reserving nothing for themselves, but the chaff and refuse; keeping this heap for one, and that the weakest perhaps and worst pigeon of the flock; sitting round, and looking on all the winter, whilst this one was devouring, throwing about and wasting it; and, if a pigeon more hardy or hungry than the rest, touched a grain of the hoard, all the others instantly flying upon it, and tearing it to pieces; if you should see this, you would see nothing more than what is every day practised and established among men.”—Paley, Moral Philosophy, Book iii. chap. i. (12th ed.), pp. 105, 106.

See especially Paley, Moral Philosophy, ii. (12th ed. 1799), pp. 217 and following. Paley’s account of the unreformed Parliament is specially valuable because it was published by a man of judicial intellect at a date (1785) when his judgment was unaffected alike by the excitement of the French Revolution and by the vehement controversies which forty-five or forty-seven years later preceded or accompanied the passing of the Reform Act.

Paley, Philosophy, ii. pp. 220, 221.

See G. Lowes Dickinson, The Development of Parliament, ch. i.

This by the way is a curious illustration of the interest felt towards the end of the eighteenth century in legal speculations.

Goldsmith, Works, iii., Citizen of the World, pp. 194, 195.

Dr. Arnold, Miscellaneous Works (ed. 1845), p. 276. It seems clear that though Arnold refers definitely only to the first seventy years of the eighteenth century, he really has in his mind the tone of the whole of that century—at any rate till near the outbreak of the French Revolution.

Arnold, Lectures on Modern History, pp. 262, 263 (2nd ed. 1843). It is intelligible enough that Arnold, who was essentially a moralist and only accidentally an historian, should add, “yet the worm at its root was not wanting.” But never did the convictions of a preacher more completely misrepresent an age which he knew only by reading or tradition. The Blackstonian era was a period of national strength and of most reasonable national satisfaction.

See p. 75, ante.

If a prisoner accused of felony stood mute, he could not be tried without his own consent. “To extort that consent he was (until 12 Geo. III. c. 20) subjected to the peine forte et dure, by being laid under a heavy mass of iron, and deprived almost entirely of food. Many prisoners deliberately preferred to die under this torture rather than be tried; because, by dying unconvicted, they saved their families from that forfeiture of property which a conviction would have brought about.” Kenny, Outlines of Criminal Law, p. 467. As late as 1772, when Mansfield and Blackstone were on the Bench, pedantry and callousness to suffering still kept alive torture which might end in death, and could not be defended on the ground, inadequate as it is, that torture may lead to the discovery of truth.

See on this whole matter, L. Stephen, English Utilitarians, i. pp. 25, 26, who points out that “The number of executions in the early part of this [i.e. the nineteenth century] varied apparently from a fifth to a ninth of the capital sentences passed,” and refers to the Table in Porter’s Progress of the Nation (1851), p. 635. “Not one in twenty of the sentences was carried into execution.” May, Constit. Hist. ii. (1863 ed.) c. xviii. p. 597.

Compare Burke, speech at Bristol, previous to the election 1780, Works, iii. (ed. 1808) p. 389, which makes it apparent that, even prior to the Act of 1778, judges and juries threw every difficulty in the way of informers who proceeded against Roman Catholics for penalties. See Lecky, Hist. (1882) iii. p. 587.

The free citizens of a state where the majority of the population were slaves have always been fanatical assertors of their own right to freedom.

Campbell, Lives of Lord Chancellors, vii. (5th ed.), pp. 154, 155.

Note the tone of the Benthamite school with regard to Blackstone. “He truckled,” writes Austin, “to the sinister interests and to the mischievous prejudices of power; and he flattered the overweening conceit of their national or peculiar institutions, which then was devoutly entertained by the body of the English people, though now [1826-32] it is happily vanishing before the advancement of reason.” Austin, Jurisprudence, i. (4th ed.), p. 71.

See p. 95, post.

See Dicey, Law of Constitution (7th ed.), pp. 22-29.

An analysis of the contents of any ordinary volume of the statutes enacted during the reign of George III. will support the truth of this statement. Compare Ilbert, Montesquieu, pp. 37, 38, for an analysis of parliamentary legislation in 1730.

It was the work of John Wade; it appeared in 1820-23 and was republished in 1831, 1832, and 1835. See Dictionary of National Biography, vol. lviii. p. 416.

On the abuses which flourished during the first thirty years of the nineteenth century, see Sydney Smith’s Works, and Brougham’s Speeches, e.g. vol. ii., Speech on Law Reform, 7th February 1828, p. 319; Speech on Local Courts, 29th April 1830, ibid. p. 489; and note specially the costliness of legal proceedings, ibid. pp. 495-499; Speech on Parliamentary Reform, 7th October 1831, p. 559; which shows the practical abuses resulting from the existence of rotten boroughs. An admirable account of the general condition of things under the unreformed Parliament is given in L. Stephen, English Utilitarians, chaps. i.-iii.

See articles on “Spring-Guns,” and on “Man-Traps and Spring-Guns,” Sydney Smith’s Works (ed. 1869), pp. 365, 385.

6 & 7 Will. IV. c. 114. Will not a reformer at the end of the twentieth century wonder that the law continued till 1903 to deny counsel to prisoners on their trial whose poverty prevented them from paying the necessary fee, and that the Poor Prisoners’ Defence Act, 1903 (3 Edw. VII. c. 38), s. 1, did not completely remedy this obvious injustice?

See Taylor On Evidence (6th ed.), s. 1210.

The result might occasionally, at any rate, be that a person who had suffered a grievous wrong was in effect deprived of any civil remedy. X assaults A. No other persons are present. Neither X nor A could give evidence. It might possibly happen that A had no means of proving the assault. Counsel, who lived when this exclusion of evidence was in force, have sometimes attributed a large part of the extraordinary successes achieved by Erskine or Scarlett to the impossibility of bringing the real facts of a case before a jury, and the wide scope thus given to a skilful advocate of suggesting imaginary accounts of transactions which, in the absence of evidence, admitted of more than one interpretation.

9 & 10 Vict. c. 95, s. 83.

The Evidence Act, 1851 (14 & 15 Vict. c. 99), s. 2. Even then the parties to an action for a breach of promise of marriage still were excluded from giving evidence, and were not made competent witnesses till 1869.

The Evidence Further Amendment Act, 1869, 32 & 33 Vict. c. 68. The principle or prejudice that persons interested in the result of a trial, whether civil or criminal, ought on account of their temptation to lie, even when on oath, not only to be heard as witnesses with a certain suspicion, but also to be held incompetent to give evidence, lingered on in the sphere of criminal law till nearly the close of the nineteenth century. Only in 1898 was a person charged with a criminal offence at last allowed to give evidence on his own behalf. (Criminal Evidence Act, 1898, 61 & 62 Vict. c. 36.) The truth, that is to say, of Bentham’s doctrine that, “in the character of objections to competency no objections ought to be allowed,” was not fully admitted till sixty-six years after his death. Before 1898, however, persons charged with crime had, in the case of special offences, been allowed to give evidence under various different enactments.

See Bowen, Reign of Queen Victoria, i. p. 290.

The Chancery Procedure Act, 1852 (15 & 16 Vict. c. 86), s. 39. See Ashburner, Principles of Equity, pp. 30-32.

Blackstone, Comm. iii. p. 43.

Ibid. p. 46.

Mostyn v. Fabrigas, 1775, Cowp. 161.

“The action was commenced (without any writ) by a declaration, every word of which was untrue: it alleged a lease from the claimant to the nominal plaintiff (John Doe): an entry by him under and by virtue of such lease; and his subsequent ouster by the nominal defendant (Richard Roe): at the foot of such declaration was a notice addressed to the tenants in possession, warning them, that, unless they appeared and defended the action within a specified time, they would be turned out of possession. This was the only comprehensible part to a non-professional person: it generally alarmed the tenants sufficiently to send them to their attorney, whereby one main object of the proceeding was attained: but the tenants were not permitted to defend the action, nor to substitute their names as defendants in lieu of that of the casual ejector (Richard Roe), except upon entering into a ‘consent rule,’ whereby they bound themselves to admit the alleged lease, entry, and ouster, and to plead the general issue ‘not guilty,’ and to insist on the title only.”—Cole, Law and Practice in Ejectment (1857), p. 1. For a popular account of the action of ejectment as it still existed in 1840, see Warren’s Ten Thousand a Year.

Stephen, Comm. i. (14th ed.), pp. 347, 348.

Blackstone, Comm. ii. p. 361.

See Blackstone, Comm. iii. pp. 337, 341; ibid. iv. pp. 340-342; Ashford v. Thornton, 1818, 3 B. & Ald. 485; 19 R. R. 349; Campbell, Chief Justices, iv. (3rd ser.), pp. 232, 233. Appeal of murder and trial by battel were abolished in 1819. 59 Geo. III. c. 46.

Stephen, Hist. i. p. 463.

19 State Trials, 1177.

20 State Trials, 379.

See Stephen, Hist. i. p. 462.

7 & 8 Geo. IV. c. 28.

3 & 4 Will. IV. c. 74.

4 & 5 Vict. c. 22.

Common Law Procedure Act, 1852, 15 & 16 Vict. c. 76.

See Lects. VI. and VIII., post.

It re-enacts in substance the Combination Act of 1799, 39 Geo. III. c. 81. See generally as to the Combination Act, 1800, Stephen, Hist. iii. 306; Wright, 12.

Stephen, Hist. iii. 208.

The maintenance of this summary jurisdiction is a feature of subsequent Combination Acts (5 Geo. IV. c. 95, s. 7; 6 Geo. IV. c. 129, s. 6; Conspiracy and Protection of Property Act, 1875, s. 10). Under the last Act, however, the accused has the option of trial on indictment before a jury (see, for the reasons in favour of this summary jurisdiction, Report of Committee on Combination Laws, 1875, pp. 10, 11). The desirability of obtaining a ready method for the punishment of trade offences, which could only be effected by Act of Parliament, should be noted. It invalidates the argument that conduct made an offence under e.g. the Combination Act, 1800, could not be an offence at common law, since if punishable at common law it would not have been made an offence by statute.

Sir William Erle, Sir Robert S. Wright, Sir J. F. Stephen, all eminent judges, have each published on this subject books of authority. A study of their writings leaves on my mind the impression that these distinguished authors have each arrived at somewhat different conclusions.

Wright’s Law of Criminal Conspiracies—published before, but not republished after he was raised to the bench—contains elaborate arguments to show that this extension was illegitimate, and was not really supported by the authorities on which it is supposed to rest. From a merely historical point of view these arguments have great force, but from a legal point of view their effect is diminished by the reflection that similar arguments if employed by a lawyer of as wide historical information and of as keen logical acumen as Sir R. S. Wright, would shake almost every accepted principle of English law, in so far as it does not depend upon statute. In any case Wright’s arguments are for my present purpose irrelevant; my object is to state, as far as may be, not what the law of conspiracy ought to have been, but what it was in 1800.

“It is undisputed law that a combination for the purpose of committing a crime is a crime” (Erle, Trade Unions, 31), and this whether the crime is known to the common law or is created by statute.

Erle, 32.

It is arguable in spite of Turner’s case, 13 East, 228, that a combination to commit any tort, or for the breach of any contract, with a view to damage any person, is a conspiracy, but it is not necessary for our purpose to state the law as widely as this. See Kenny, Outlines of Criminal Law, 288-290.

Erle, 33, 34.

The agreements which at the present day may be held to constitute a conspiracy have been thus summarised:—

(1) Agreements to commit a substantive crime (R. v. Davitt, 11 Cox, 676; R. v. Whitechurch, 24 Q.B.D., 420), e.g. a conspiracy to steal or to incite one to steal.

(2) Agreements to commit any tort that is malicious.

(3) Agreements to commit a breach of contract under circumstances which are peculiarly injurious to the public.

(4) Agreements to do certain other acts which, unlike those hitherto mentioned, are not breaches of law at all, but which nevertheless are outrageously immoral, or else in some way extremely injurious to the public.

See Kenny, 288-290.

The definition attributed to Lord Denman of a conspiracy as a “combination for accomplishing an unlawful end, or a lawful end by unlawful means” (see Wright, 63) is, it is submitted, sound, though too vague to be of much use. Its importance lies in the emphasis it lays on the object or purpose—a very different thing from the motive—of a combination as a test of its criminal character, and in the light which it throws on the wide extension given by the law to the idea of conspiracy.

Stephen, Hist. iii. 209.

I.e. the Combination Act generalised provisions which had been long enforced under special Acts in respect of workmen engaged in particular kinds of manufacture. See Stephen, Hist. iii. 206.

During a period of seven weeks, between June 10 and July 27 (9 Thermidor), 1794, at least 1376 individuals were sent by the Revolutionary Tribunal in Paris to the guillotine. This gives an average for that period of more than 196 victims a week. See Morse Stephens, French Revolution, ii. p. 548.

57 Geo. III. c. 19, s. 27; Wright, 23, 24.

Fowle, Poor Law (2nd ed.), 66, 67.

Oddly enough the Code Napoléon of 1804, which, as regards the right of association, embodies the ideas of French revolutionists or reformers, is at least as strongly opposed to trade combinations, whether among employers or workmen, as the Combination Act, 1800.

The Six Acts were:—

(1) An Act to prevent the training of persons to the use of arms and to the practice of military evolutions and exercise (60 Geo. III. & 1 Geo. IV. c. 1).

(2) An Act to authorise justices of the peace to seize arms, etc., to continue in force only till 1822 (c. 2).

(3) An Act to prevent delay in the administration of justice in cases of misdemeanour (c. 4).

(4) An Act for more effectually preventing seditious meetings, etc. [out of doors], to continue in force for only a limited time (c. 6).

(5) An Act for the effectual prevention and punishment of blasphemous and seditious libels (c. 8).

(6) An Act to subject certain publications to duties of stamps upon newspapers, and to restrain abuses arising from the publication of blasphemous and seditious libels (c. 9).

This, as I understand Lecky’s History of England during the Eighteenth Century, is the policy which that eminently well informed and pre-eminently just historian thinks ought to have been adopted. One must, however, remark that this policy if honestly carried out would have been marked by two characteristics which it is hardly possible to believe would have been accepted by Englishmen at the beginning of the nineteenth century. The one was the concession of full political rights to the Irish Roman Catholics, to which many zealots for Irish parliamentary independence—such, for instance, as Lord Charlemont—were opposed; the other was the creation of an Irish Executive really dependent upon the support of the Irish Houses of Parliament, and therefore truly, as well as in name, uncontrolled by the English Cabinet.

This is not the place in which to discuss the character of George III. His sentiments or prejudices afford, however, an admirable index to the public opinion of England during his reign. His errors were some of them great enough, but his opinion was always, or almost always, the opinion of the average English elector. It is impossible to show that as regards either the war with the colonies, the hatred to the Coalition, the distrust of parliamentary reform, the maintenance of the war with France, or the opposition to Catholic Emancipation, the feelings of George III. were not on the whole the feelings of the English people. In his support of the Act of Union with Ireland and in his refusal to couple it with Catholic Emancipation, George III. represented the opinion of the English electorate.

46 Geo. III. c. 119.

56 Geo. III. c. 138.

1 Geo. IV. c. 57.

3 Geo. IV. c. 71.

6 Geo. IV. c. 60; 7 & 8 Geo. IV. c. 28.

7 & 8 Geo. IV. c. 18.

That humanitarianism was a marked characteristic of the first half of the nineteenth century, and especially of the era of Benthamite reform, is certain. Whether this desire to avoid the infliction of pain has not in England diminished in force since the middle of the nineteenth century, admits at least of doubt. Note as example of increased humanitarianism between 1736 and 1818 that while the imaginary Jeanie Deans is sent home in a carriage by her patron, her real prototype, Ellen Walker (1736), was allowed to walk back to Scotland, and brought the pardon only just in time to save her sister’s life. See Scott’s note, Heart of Midlothian, Waverley Novels, xii., Introduction, pp. i-xi.

E.g. sports, such as bull-baiting or prize fights, of which the one was defended by Windham, the friend and disciple of Burke and of Johnson, and the other was patronised on principle by a statesman so kindly and so religious as Lord Althorp.

Cowper, the friend and disciple of John Newton, inveighed against the Bastille, that “house of bondage,” with its horrid “towers,” its “dungeons,” and “cages of despair,” with an indignation which would have become a disciple of Rousseau.

The reign of Nero is contemporaneous with the spread of Christianity.

For the intellectual relation between Benthamism and Evangelicalism as different forms of individualism, see Lect. XII., post.

42 Geo. III. c. 73.

The word “factory” or “manufactory” does not, as far as I have observed, occur in Blackstone’s Commentaries; the book certainly contains no reference to what we now understand by factory legislation.

See Hutchins and Harrison, History of Factory Legislation, ch. ii. pp. 16-18.

See Lect. VII., post.

42 Geo. III. c. 73.

39 Geo. III. c. 66.

6 Geo. IV. c. 63.

10 Geo. IV. c. 51.

1 & 2 Will. IV. c. 39. This last Act was of a wider scope and comes within the period of individualism.

See pp. 30-32, ante.

Sydney Smith, Works (ed. 1879), p. 340 (n.).

See pp. 26, 27, ante.

See p. 21, ante.

The introduction of fast coaches towards the end of the eighteenth and the beginning of the nineteenth century is analogous to the introduction of railways at a later date.

Statesman’s Year-Book, 1904, p. 16.

Leslie Stephen, English Utilitarians, i. pp. 111, 112.

Ibid. p. 112. This list, to which might be added Francis Place and many others, reminds us of the difference between the extension of knowledge and the extension of education. Receptivity of information which is cultivated and rewarded in schools and also in Universities, is a totally different thing from the education, sometimes conferred even by adverse circumstances, which trains a man to seize opportunities either of learning or of advancement. It has been well said that failures in life arise far less often from mere want of knowledge than from want of skill in the seizing of such favourable opportunities.

The Edinburgh Review was started in 1802.

As to the state of parliamentary representation in 1799, see Paley, Moral Philosophy, ii. (12th ed.) pp. 217, 218.

This reform excited no enthusiasm: it did not last even till the Restoration. The Parliament summoned by Richard Cromwell was elected in England by the old constituencies.

See Leslie Stephen, English Utilitarians, i. pp. 99, 100.

Scott’s Familiar Letters, vol. ii., Letter to Morritt, 19th May 1820.

The slowness with which necessary reforms have been carried out in England is curiously illustrated by the history of the police force during the nineteenth century. The creation of the Metropolitan police in 1829 (10 Geo. IV. c. 14) is due to Peel’s administrative genius; it was a stroke of intensely unpopular but very beneficent statesmanship; but even in the metropolis the police force was not put on a satisfactory basis till 1839 (2 & 3 Vict. c. 47). In the boroughs reform went on slowly, and was not anything like complete until 1839. In the counties reform progressed at even a slower pace. The so-called Permissive Act of 1839 (2 & 3 Vict. c. 93) made the organisation of a good county police possible. In 1842 an attempt was made to infuse new life into the decrepit system of parish constables. Fourteen years later the County and Borough Police Act, 1856 (19 & 20 Vict. c. 69), known as the Obligatory Act, for the first time provided every part of England with stipendiary police, and thus completed a police system for the whole country. See Melville, History of Police in England, chaps. xiii.-xv.

Bowen, Reign of Queen Victoria, i. p. 315.

The delay, however, in reform by Eldon and his school conferred some benefit on the country. It postponed action until in 1832 it took the shape of reform instead of revolution.

The very title of Burke’s celebrated Three Letters on the Proposals for Peace with the Regicide Directory of France, 1796, is a curious example of the difference between the feelings of his times and of our own. Would suggestions of peace with France (or for that matter with any other civilised country) now excite horror simply on the ground that the French Government had put their king to death? The Directory, by the way, had not as a government executed Louis XVI. Would Burke, one wonders, have blamed Louis XIV. for recognising Cromwell, who was in the strictest sense a regicide?

See Bentham, “Memoirs and Correspondence,” Works, x. xi.; Montague, Bentham’s Fragment on Government; L. Stephen, English Utilitarians, i., especially chaps. i.-iii.; Elie Halévy, La formation du radicalisme philosophique; G. Wallas, Life of Francis Place, ch. iii.; Bowen on “Administration of the Law, from 1837-1887,” Reign of Queen Victoria, i. 281.

The influence even on law reform of Adam Smith and his disciples ought, of course, not to be forgotten, but in 1830 the economists and the Benthamites formed one school.

Brougham’s Speeches, ii. pp. 287, 288.

Voltaire, born 1694, died 1778. Each lived to the age of eighty-four.

Bentham in this matter resembled Darwin. Each of these eminent men owed to inherited wealth the possibility of wholly dedicating his whole life to its appropriate work.

b. 1732, d. 1792.

b. 1736, d. 1819.

Bentham, Works, iv. p. 39.

“The name of Jeremy Bentham, one of the few who have wholly lived for what they held to be the good of the human race, has become even among educated men a byword for what is called his ‘low view’ of human nature. The fact is that, under its most important aspect, he greatly overrated human nature. He overestimated its intelligence.”—Maine, Popular Government, pp. 85, 86. These sentences contain an appreciation which is rare, not only of Bentham’s virtues but of his enthusiasm.

Apparently the formula was originally derived not from Priestley, but from Beccaria (see Crimes and Punishments, Introduction, p. 2, where the expression is found. “This sole end the greatest happiness of the greatest number”).

Montague, Bentham’s Fragment on Government, p. 34.

Bentham’s Works, x. (“Extracts from Bentham’s Commonplace Book”), p. 73.

Sir Roland Knyvet Wilson, Bart., History of Modern English Law (ed. 1875), p. 136.

These principles, it should be remembered, are not so much the dogmas to be found in Bentham’s Works as ideas due in the main to Bentham, which were ultimately, though often in a very modified form, accepted by the reformers or legislators who practically applied utilitarian conceptions to the amendment of the law of England.

Paley (“Of the Constitution”), Moral Philosophy, ii. (12th ed. 1799), pp. 193, 194.

Bentham almost certainly held that laws against usury were always bad; yet strong reasons have been produced by Grote—a most zealous utilitarian—for the belief that in ancient Athens and Rome such laws were beneficial. Sir J. F. Stephen, though a pronounced utilitarian, appears to incline towards the opinion that laws placing a check on usury might occasionally be useful as a means of preventing fraud. See Stephen, Hist. iii. pp. 195, 196.

See Principle No. 2, p. 136, ante.

“Review of a Free Enquiry,” Johnson’s Works, viii. p. 37.

“Virtue is, ‘the doing good to mankind, in obedience to the will of God, and for the sake of everlasting happiness.’

“According to which definition, ‘the good of mankind’ is the subject; the ‘will of God’ the rule; and ‘everlasting happiness’ the motive of human virtue.”—Paley, Moral Philosophy, i. bk. i. ch. vii. p. 41.

On the whole a priori systems of ethics will in general produce conservatism. “I suspect,” writes Paley, “that a system of morality, built upon instincts, will only find out reasons and excuses for opinions and practices already established—will seldom correct or reform either.”—Paley, Moral Philosophy, i. bk. i. ch. v.

This is not invariably true, as appeared during the French Revolution. In a country where the mode of government is on the whole liked, intuitional morality will promote conservatism; where the mode of government is detested, it may promote revolution. Its defect everywhere is that it fails to fix attention on the consequences of legislation and generally of men’s actions.

Bentham, x. p. 63. So he deplored the publication in France of the Declaration of Rights. “I am sorry,” he writes to Brissot, “you have undertaken to publish a Declaration of Rights. It is a metaphysical work—the ne plus ultra of metaphysics. It may have been a necessary evil, but it is nevertheless an evil. Political science is not far enough advanced for such a declaration.”—Cited Kent, English Radicals, p. 184. Compare Halévy, La Formation du Radicalisme Philosophique, ii. pp. 38-43, and pp. 47-51.

See, e.g., Truth against Ashurst, Bentham, v. p. 234, and generally Mill, On Liberty, which is throughout a defence, though not at bottom quite a consistent one, of this principle.

Herbert Spencer (who criticises Bentham, by the way, as unfairly as Bentham criticised Blackstone) argues in substance (e.g., Social Statics, pp. 7-10, The Man versus The State, pp. 372-383) that the laissez faire doctrine or something very like it, and not the dogma of the “greatest happiness for the greatest number,” is the fundamental doctrine of sound legislation; and, whatever may be said on this point as a question of ethical theory, it is plain that it is the doctrine of laissez faire which has really governed Benthamite legislation.

“Despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement, and the means justified by actually effecting that end. Liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion. Until then, there is nothing for them but implicit obedience to an Akbar or a Charlemagne, if they are so fortunate as to find one” (Mill, On Liberty, p. 23). This concession goes further than Mill seems to perceive. Its principle seems to apply to every case where a government is far more intelligent than the governed.

Truth against Ashurst, Bentham, v. p. 234.

See Sidgwick, Elements of Politics, ch. iv.

A contractual incapacity, such, for example, as the incapacity of an infant to bind himself by a contract to pay for things which are not necessaries, may be a desirable protection, but it assuredly, as far as it goes, limits an infant’s power of obtaining luxuries on credit. The point is elementary, but it is worth insisting upon, since there is a constant tendency on the part both of theorists and of so-called practical men, to forget that protection invariably involves disability, i.e., limitations on the individual liberty of the protected person.

Respect for the obligation of contracts is embodied in the Constitution of the United States. The revolutionary, no less than the Napoleonic legislation of France is systematically hostile to the existence of guilds, corporations, or associations which might in any way limit the freedom of contract between individuals. Compare Hauriou, Précis de Droit Administratif (5th ed.), p. 100; Pic, Traité Elémentaire de Législation Industrielle (2nd ed.), ss. 336-343.

A contract of service for life is legal (Wallis v. Day (1837), 2 M. & W. 273). But though damages might be recovered for the breach of the contract, the specific performance thereof would not be enforced. Compare Macdonell, Law of Master and Servant, pp. 31, 197.

See Appendix, Note I., Right of Association.

And also may menace the authority of the State.

Webb, History of Trade Unionism (1894), p. 125.

Mill, On Liberty, p. 27. Compare pp. 157, 158, and 176-180.

See Halévy, ii. pp. 34-51, as to Bentham’s want of sympathy with the democratic aspect of the Revolution.

Maine, Popular Government, p. 83, and see pp. 82-86.

Lect. V., ante. Compare Creevy Papers, edited by the Rt. Hon. Sir Herbert Maxwell, for illustrations of the worst side of English government between 1800 and 1832.

Even if not Benthamites they were with rare exceptions imbued with individualism.

Whether the precept that every one should count for one included women, was in 1830 a question outside the sphere of practical politics, but it divided the Benthamites. The language of Bentham himself was somewhat uncertain. James Mill condemned the government of women as decisively, if not as consistently, as in an earlier age did John Knox. John Mill was throughout his life the ardent advocate of the political equality of the sexes, but John Mill, though honestly basing all his political views on the principle of utility, entertained, though unconsciously, a sentiment in favour of equality which belongs to the school rather of Rousseau than of Bentham.

James Mill’s Essay on Government aims apparently at establishing this conclusion, but a student who reads between the lines will see that James Mill in reality advocates the political supremacy of the middle class. See Government, pp. 31, 32.

J. S. Mill, Autobiography, pp. 106, 107. It is arguable that many utilitarians were in their estimate of the “people” more influenced than they were aware of by the teaching of Rousseau, or rather by the prevalent sentiment to which this teaching gave expression.

Mill, Autobiography, pp. 177, 178, 179. “This time” apparently means from about 1830 to 1840.

See Maine, Ancient Law, pp. 78, 79.

An intelligent reader of Blackstone’s Commentaries is astonished at the slightness of the reference made by the commentator to statutes. Contrast on this matter the first edition of the Commentaries, completed in 1765, with the last edition of Stephen’s Commentaries (based as they are on Blackstone’s work), edited by Mr. Jenks in 1903.

For Lord Mansfield’s attempted reform by way of introduction of equitable principles into the common law, and the way in which the attempt was afterwards rendered abortive by Kenyon, see Ashburner, Principles of Equity, pp. 15, 16.

See pp. 124, 125, ante.

“It is impossible to overrate the importance to a nation or profession of having a distinct object to aim at in the pursuit of improvement. The secret of Bentham’s immense influence in England during the past thirty years is his success in placing such an object before the country. He gave us a clear rule of reform. English lawyers of the last century were probably too acute to be blinded by the paradoxical commonplace that English law was the perfection of human reason, but they acted as if they believed it for want of any other principle to proceed upon. Bentham made the good of the community take precedence of every other object, and thus gave escape to a current which had long been trying to find its way outwards.”—Maine, Ancient Law, pp. 78, 79. These words were published in 1861.

“German philosophers, indeed, have neglected Bentham. Even Robert von Mohl, who alone appreciates his genius, thinks Hill Burton’s eulogy absurdly exaggerated, because Hill Burton declares that nearly all the great reforms of the first half of nineteenth-century England were originated by Bentham. The opinion of Sir Henry Maine might be quoted in support of Hill Burton’s proposition, which is indeed strengthened by publications of a later date. But the best and most conclusive evidence of all is to be drawn from a comparison of Bentham’s teaching with the legislation which followed it.”—Redlich and Hirst, Local Government in England, i. p. 97.

This is certainly true of Sydney Smith. See Holland’s Memoir and Letters of Sydney Smith (4th ed.), p. 386.

For an illustration of the difference between systematic Benthamism and utilitarian liberalism contrast Bentham’s Book of Fallacies with Sydney Smith’s review thereof, containing the celebrated “Noodle’s Oration,” or James Mill’s “Essay on Government,” with Macaulay’s articles on the utilitarian philosophy which appeared in the Edinburgh Review of 1829. With these articles should be read Macaulay’s review of “Gladstone on Church and State.”

To Benthamism it is owing that the pacific revolution of which the Reform Act, 1832, was the visible sign, did not, like many other pacific or violent attempts at improvement, fail in attaining its end. Puritanism, it has been well said, missed its mark. In no sphere is this more obviously true than in the sphere of legislation. Many Puritans perceived that the law needed reform, yet the Puritan revolution achieved but little for the amendment of the law. Chief-Justice Rolle could perfect the fictions on which rested the action of ejectment, and in so far he facilitated the recovery of land (Blackstone, Comm. iii. p. 202); but the Puritans did not perceive that the fictions which complicated the proceedings in ejectment ought to be abolished. The Puritan worship of the common law barred the path which might lead to its amendment. Their rightful dread of arbitrary power blinded them to the necessity for the changes which were gradually and awkwardly introduced by the development of equity through the Court of Chancery. A party who adored Coke could not possibly produce a reformer such as Bentham, or have understood him had he lived in the seventeenth century.

Many of them had become the most servile of Napoleon’s servants.

See for Bentham’s criticisms on the theory of a social contract, Halévy, vol. i., appendix iii., p. 416.

Bentham, “Anarchical Fallacies,” cited Kent, English Radicals, p. 184.

See p. 130, ante.

Francis Place was even in later life well described by an admirer as “an old firebrand,” but fanatic as he was, he does not express the least hatred to English institutions. The moderation, again, of Bentham’s objects may be inferred from this sentence in a letter to O’Connell: “Parliamentary Reform, Law Reform, Codification—all these agenda crowned with your approbation—nothing can be more satisfactory, nothing more glorious to me—nothing more beneficial to the so unhappily United Kingdom, from thence to the rest of the civilised world, and from thence, in God Almighty’s good time, to the uncivilised.”—Bentham, Works, x. p. 598.

Every man, for example, had a right to be paid the debts owing to him, but until the creation of the County Courts it was often difficult, if not impossible, for any poor man to obtain payment of even an admitted debt.

See as to the relation between Evangelicalism and Benthamism, Lect. XII., post.

See p. 168, ante.

Lecky, Leaders of Public Opinion in Ireland, ii. (ed. 1903), p. 91.

“He was also an uncompromising advocate of free trade in all its forms, including the complete abolition of the Corn Laws. His policy on this question is very remarkable, for Ireland had a special interest in the question, which O’Connell seems never to have understood. Nothing was more contrary to his desire than that her population should be greatly diminished and that she should be turned into a great pastoral country, yet nothing is more clear than that the abolition of the Corn Laws, depriving her of her preferential position in the corn market of England, made such a change inevitable. O’Connell argued the question on the crudest and also the most extreme lines, treating any tax on food as simply immoral. In his letter to Lord Shrewsbury he accused that Catholic nobleman of having ‘stained Catholicity itself with the guilt of that sordid monopoly.’ ‘The provision tax,’ he wrote, ‘is in its nature most criminal. It is murderous. It is the most direct violation of the first principles of justice. . . . It is in itself so radically oppressive and unjust, that it is incapable of moralmitigation. . . . The protected person, by the voice of the Corn Laws, addresses the workmen: “You shall not buy your breakfast, though you have your own hardearned money to buy it with, until you have first paid me a heavy tax for liberty to purchase.” ’ ”—Lecky, Leaders of Public Opinion in Ireland, ii. pp. 92, 93.

Between 1835 and 1844 agricultural training schools and model farms were established in Ireland, but “a strong opposition to Statepaid agricultural education arose among the English free-traders and greatly influenced the Government. They objected to training farmers at public cost; to the State paying for, and taking a part in agricultural operations. Peel and Cardwell sympathised with these views; the model farms were nearly all given up and the teaching of agriculture was almost restricted to mere book knowledge. In accordance with ideas that were then widely diffused, the inspectors positively discouraged practical agricultural instruction as not really education.”—Lecky, Leaders of Public Opinion inIreland, ii. pp. 125, 126. This illustrates both the laissez faire of the day and the attitude of Peel and the Peelites

See generally Wallas, Life of Francis Place, and especially as to the reforms still desirable in 1832, pp. 326, 327. As to transitory character of trade combinations, pp. 217, 218; as to desire for the strict enforcement of the poor law, pp. 332-334; as to Malthusianism, pp. 174, 175.

See Webb, History of Trade Unionism, pp. 277-283; and 265, 266. I do not, of course, forget that many artisans were deeply influenced by the principles ofRobert Owen.

Walpole, Hist., iv. p. 49.

Note the violence of the language of the Quarterly in reference to Christian Socialists such as Maurice and Kingsley (see Life of Maurice, ii. pp. 71-73), and the protest against a sermon by Kingsley (supposed to contain socialist doctrine), uttered immediately after its delivery before the very congregation who heard it, by the Rector at whose request Kingsley had delivered the sermon (Kingsley, Dictionary of National Biography, xxxi.p. 177).

Notice Buckle’s denunciation of everything which savoured of protection. As to John Mill’s influence and also as to the relation between evangelicalism and individualism, see Lect. XII., post.

See pp. 41-46, ante.

See pp. 63-64, ante.

This unity is concealed from casual observers by the gradual and fragmentary character of English legislation.

Notably by the utilitarianfanatic Fancis Place, whose action, of an almost revolutionary nature, was countenanced by men richer and apparently more moderate than the Westminster tailor and wirepuller.

As to the relation between Benthamism and democracy, see pp. 158-165, ante.

Brougham’s Speeches, ii. p. 600.

Ibid. p. 617.

Ibid. p. 600.

“Another proposition may be stated, with a perfect confidence of the concurrence of all those men who have attentively considered the formation of opinions in the great body of society, or, indeed, the principles of human nature in general. It is, that the opinions of that class of the people, who are below the middle rank, are formed, and their minds are directed by that intelligent, that virtuous rank, who come the most immediately in contact with them, who are in the constant habit of intimate communication with them, to whom they fly for advice and assistance in all their numerous difficulties, upon whom they feel an immediate and daily dependence, in health and in sickness, in infancy and in old age; to whom their children look up as models for their imitation, whose opinions they hear daily repeated, and account it their honour to adopt. There can be no doubt that the middle rank, which gives to science, to art, and to legislation itself, their most distinguished ornaments, the chief source of all that has exalted and refined human nature, is that portion of the community of which, if the basis of representation were ever so far extended, the opinion would ultimately decide. Of the people beneath them, a vast majority would be sure to be guided by their advice and example.”—James Mill, “Government,” p. 32, reprinted from supplement to Encyclopædia Britannica.

Utilitarianism on this point coincided with, and was reinforced by Evangelicalism.

1820, 1 Geo. IV. c. 57.

1816, 56 Geo. III. c. 138; 1837, 7 Will. IV. & 1 Vict. c. 23.

1834, 4 & 5 Will. IV. c. 26.

7 & 8 Geo. IV. cc. 29, 30.

24 & 25 Vict. cc. 96-100.

1868, 31 & 32 Vict. c. 24.

1840, 3 & 4 Vict. c. 85; 1864, 27 & 28 Vict. c. 37.

9 Geo. IV. cc. 40, 41.

As to improper treatment of cattle, etc., 3 Geo. IV. c. 71 (1822), as to bull-baiting and cock-fighting, 3 & 4 Will. IV. c. 19 (1833): 5 & 6 Will. IV. c. 59 (1835), as to cruelty to domestic animals generally 12 & 13 Vict. c. 92 (1849): as to prohibition of use of dogs for draught, 17 & 18 Vict. c. 60 (1854); as to prohibition of vivisection, see Cruelty to Animals Act, 1876, 39 & 40 Vict. c. 77, and as to protection from cruelty of wild animals in confinement, see 63 & 64 Vict. c. 63, Wild Animals in Captivity Protection Act, 1900, and on whole subject compare Wilson, Modern English Law, 234, 235, and Stephen, Comm. iv. (14th ed.), 213-215.

Wilson, ibid.

See Mill, On Liberty, p. 21.

61 & 62 Vict. c. 58.

The Combination Act, 1824, 5 Geo. IV. c. 95, and the Combination Act, 1825, 6 Geo. IV. c. 129. See Steph. Hist. iii. 221; Wright, 13.

Wright, 13.

Wright, 13.

“It is difficult,” it has been said, “to see how, in the case of a conflict of interests, it is possible to separate the two objects of benefiting yourself and injuring your antagonist. Every strike is in the nature of an act of war. Gain on one side implies loss on the other; and to say that it is lawful to combine to protect your own interests, but unlawful to combine to injure your antagonist, is taking away with one hand a right given with the other.”—Stephen, Hist. iii. 218, 219.

Surely this criticism, though often made, is fallacious. In every ordinary contract there is in one sense a conflict of interests. A, the seller, wishes to obtain the highest, X, the buyer, to give the lowest, price possible. Yet no one supposes that either A or X inflict an injury upon the other. The same thing might hold good of a strike where there was no coercion used towards third parties. A, B, and C, the masters, would offer what wages they chose, and X, Y, and Z, the workmen, would combine to accept the best wages they found they could get. If oppression be excluded there need be no injury inflicted on either side. The free haggling of the market would fix the rate of wages. This view, whether right or wrong, was entertained by the reformers of 1824-1825.

Sect. 2 exempts from liability to any indictment or prosecution for conspiracy, or to any other criminal information or punishment whatever, under the common or the statute law, “journeymen, workmen, or other persons who shall enter into any combination to obtain an advance, or to fix the rate of wages, or to lessen or alter the hours or duration of the time of working, or to decrease the quantity of work, or to induce another to depart from his service before the end of the time or term for which he is hired, or to quit or return his work before the same shall be finished, or, not being hired, to refuse to enter into work or employment, or to regulate the mode of carrying on any manufacture, trade, or business, or the management thereof.” Under this section a combination of X, Y, and Z to induce a workman to break a contract of work or to induce a master to dismiss all workmen who were not trade unionists, would semble, not have been a conspiracy. Sect. 3 gives an analogous exemption to masters.

Sect. 4. “Provided always . . . that this Act shall not extend to subject any persons to punishment, who shall meet together for the sole purpose of consulting upon and determining the rate of wages or prices, which the persons present at such meeting, or any of them, shall require or demand for his or their work, or the hours or time for which he or they shall work in any manufacture, trade, or business, or who shall enter into any agreement, verbal or written, among themselves, for the purpose of fixing the rate of wages or prices which the parties entering into such agreement, or any of them, shall require or demand for his or their work, or the hours of time for which he or they will work, in any manufacture, trade, or business, and that persons so meeting for the purposes aforesaid, or entering into any such agreement as aforesaid, shall not be liable to any prosecution or penalty for so doing; any law or statute to the contrary notwithstanding.” Section 5 provides an analogous exemption for meetings of masters to settle the rate of wages, etc.

A comparison between the Act of 1824, section 2, and the Act of 1825, section 4, shows that the liberty of combination allowed under the first Act is a good deal wider than that allowed under the second.

This Act “left the common law of conspiracy in force against all combinations in restraint of trade, the combinations exempted from penalty under ss. 4 and 5 alone excepted.”—Erle, 58. This is, it is submitted, the right view of the law. Contrast, however, Stephen, Hist. iii. 223.

Farrer v. Close (1869), L. R. 4 Q.B. 602.

See Wealth of Nations, ch. viii. pp. 97-102 (6th ed. 1791).

Life of F. Place, 236.

Then Mr. Peel.

Peel’s Private Correspondence, 379 (London, 1891).

Life of F. Place, p. 217, and see further p. 218.

Morley, Cobden, i. ch. xiii. p. 299.

H. Martineau’s Thirty Years’ Peace (ed. 1877), i. 474.

R. v. Druitt (1867), 10 Cox, 600, per Bramwell, B., cited Steph. Hist. iii. 221, 222.

See pp. 156-158, ante.

Williams, Real Property (19th ed.), p. 616; Pollock, Land Laws (3rd ed.), pp. 171-178.

Compare Pollock, Land Laws, 3rd ed. pp. 180-186, and note particularly the change in policy as to the mode of dealing with commons from 1865 to 1876, which year is marked by the Commons Act, 1876, 39 & 40 Vict. c. 56.

See Paley, Moral Philosophy, ii. Bk. vi. c. x., with which contrast, on the one hand, Blackstone, Comm., iv. p. 440, and on the other hand, the general tone of Macaulay’s Essays and Sydney Smith’s Works passim. The older Whigs justified the imposition of political disabilities upon Roman Catholics on the ground that in the case of Roman Catholics religious tenets were, for a time at least, the sign of political disloyalty.

The ardent wish to amend legal procedure connects Bentham more closely than he perceived with the greatest English judges. Our lawyers in and out of Parliament have instinctively felt that a right which cannot be enforced is no right at all. It is unfortunate for Bentham’s reputation that the writers who in England have been the chief representatives of utilitarianism have either possessed little knowledge of law or else have lacked sympathy with Bentham’s enthusiasm for law reform. Neither James nor John Mill was either a lawyer or a jurist. Austin had a firm grasp of a few most important legal conceptions, but nothing in his writings betrays anything like systematic study of the laws of England. Sir J. F. Stephen was a considerable criminalist, but he hardly claimed to be, in the Benthamite sense of the term, a reformer of the law. Sir Leslie Stephen, who is by far the ablest of Bentham’s critics, was not a lawyer, and did not pay as much attention as the matter deserved to Bentham’s claim to be a legal philosopher.

9 & 10 Vict. c. 95.

51 & 52 Vict. c. 43, with which now read the County Courts Act, 1903, 3 Edw. VII. c. 42.

Ashburner, Principles of Equity, pp. 17, 18; Holdsworth, History of English Law, i. pp. 231-235; 14 & 15 Vict. c. 4 (1851); The Court of Chancery Acts, 1852 (15 & 16 Vict. cc. 80, 87); The Chancery Procedure Act, 1852 (15 & 16 Vict. c. 86); The Chancery Amendment Act, 1858 (21 & 22 Vict. c. 27); The Chancery Regulation Act, 1862 (25 & 26 Vict. c. 42); and see for earlier legislation of a reforming character, 53 Geo. III. c. 24 (1813), 3 & 4 Will. IV. c. 94 (1833); the Court of Chancery Acts, 1841, 1842 (5 Vict. c. 5; 5 & 6 Vict. c. 103).

15 & 16 Vict. c. 76.

17 & 18 Vict. c. 125.

23 & 24 Vict. c. 126.

36 & 37 Vict. c. 66. To understand the full extent of the change introduced under the Judicature Acts a student should read the fifteen Acts which make up the Judicature Acts, 1873-1899, and the Rules and Orders made thereunder. See Stephen, Comm. iii. (14th ed.), p. 352.

See pp. 86-94, ante.

Bowen, The Administration of the Law, The Reign of Queen Victoria, i. pp. 309, 310.

R. v. Pinney (1832), R. v. Fursey (1833), R. v. Vincent (1837), R. v. Collins (1839), R. v. Feargus O’Connor, R. v. Cooper (1843), to which add the notorious case of the Dorchester Labourers (1834); Webb, History of Trade Unionism, p. 129.

As to the violent destruction of machinery in 1830, see “Letters to Swing,” by Sydney Smith, Memoir by Lady Holland, i. (4th ed.), p. 287.

Sydney Smith’s Works (ed. 1869), pp. 670, 671.

Southey’s Colloquies on the Progress and Prospects of Society, i. p. 110.

“If there be,” writes Macaulay, “in [Mr. Southey’s] political system any leading principle, any one error which diverges more widely and variously than any other, it is that of which his theory about national works is a ramification. He conceives that the business of the magistrate is not merely to see that the persons and property of the people are secure from attack, but that he ought to be a jack-of-all-trades,—architect, engineer, schoolmaster, merchant, theologian, a Lady Bountiful in every parish, a Paul Pry in every house, spying, eaves-dropping, relieving, admonishing, spending our money for us, and choosing our opinions for us. His principle is, if we understand it rightly, that no man can do anything so well for himself as his rulers, be they who they may, can do it for him, and that a government approaches nearer and nearer to perfection, in proportion as it interferes more and more with the habits and notions of individuals.

“He seems to be fully convinced that it is in the power of government to relieve all the distresses under which the lower orders labour.”—Macaulay, Critical, etc. Essays (1870 ed.), p. 110.

A reader of to-day finds it difficult to justify fully the strength of Macaulay’s attack by citations from the Colloquies. But the Whig critic, who had the whole of Southey’s writings before his mind, instinctively felt the opposition between Southey’s whole view of society and the liberalism of 1832. This opposition is admitted by Southey’s modern admirers, and by them considered his title to fame as a social reformer. “He looked forward to a time when, the great struggle respecting property over—for this struggle he saw looming not far off—public opinion will no more tolerate the extreme of poverty in a large class of the people than it now tolerates slavery in Europe; when the aggregation of land in the hands of great owners must cease, when that community of lands, which Owen of Lanark would too soon anticipate, might actually be realised.”—Dowden, Southey, p. 154.

“The view of social evils to which Southey . . . gave expression, often in anticipation of Mr. Ruskin, was in many respects deeper and truer than that of his optimistic critic [Macaulay].”—Dictionary of National Biography, vol. liii. p. 288.

Compare Thomas Hodgskin (1787-1869), par E. Halévy, for a combination of anarchism (based on ultra-individualism) with something like collectivism.

Arnold, Miscellaneous Works, pp. 453, 454.

Carlyle’s Works, x. p. 340, “Chartism.” See also ibid. chap. vi. p. 368.

Benthamite reformers have never had a perfectly fair chance of bringing their policy to a successful issue. Some of their proposals have never been carried into effect; outdoor relief, for example, has never been abolished. The realisation of some of them has been so delayed as to lose more than half its beneficial effect. If the first reformed Parliament had been able to establish free trade simultaneously with the enactment of the new poor law, and given to Dissenters in 1832 as complete political equality as they possess at the present day; if it had in reality opened to Roman Catholics in 1832 all careers as completely as they are open to them in 1905; if O’Connell had been first made Irish Attorney-General and then placed on the Bench; if the tithe war which harassed Ireland till 1838 had been terminated in 1834—is it not at least possible that a rapid increase in material prosperity and a sense of relief from oppression might have produced a general sentiment of social unity, which would have shown that the principles of individualism fitly met the wants of the time? Our habit of delaying reforms has its occasional advantages; these advantages are, however, much exaggerated. Sir Thomas Snagge, in his admirable Evolution of the County Court, thus writes of the County Court Act, 1846: “Its provisions were the outcome of nearly twenty years of resolute parliamentary effort, met by opposition no less persistent. Such struggles are wont to end, as this did, in a compromise. It was the old story of all sound English reform: hasty change was successfully withstood, and gradual evolution was happily accomplished.” Can our esteemed author seriously maintain that opposition generated by partisanship brought a single compensation for the practical denial of justice to the poor during a period of twenty years? However this may be, the disadvantages of delay are often tremendous. It keeps alive irritation which constantly robs improvement itself of almost the whole of its legitimate benefit.

See Lect. III., ante.

The expression is obviously inaccurate, but I use it as a convenient and accepted name for the movement in favour of the regulation by law of labour in factories.

Factory legislation dates from 1802, but the factory movement aroused by Oastler’s letters dates from 1830.

Morley, Life of Cobden, i. pp. 464, 465, Appendix. It is to be regretted that Cobden’s idea did not bear fruit. There might have been some advantage in trying the experiment whether the complete protection of children might not have been found compatible with the minimum of interference with the management of factories.

Afterwards known to the present generation as Lord Shaftesbury, and for the sake of convenience generally so described in these Lectures.

Hodder, Life of Shaftesbury, i. pp. 157, 158. McCulloch to Lord Ashley, 28th March 1833.

For speech on Ten Hours Bill, 22nd May 1846, see Macaulay, Speeches (ed. 1871), p. 718.

Lege “fiend”?

Hodder, i. pp. 156, 157. Southey to Lord Ashley, 7th Feb. 1833. Coleridge was one of those who (1802) took an interest in the factory children. He writes to a lawyer to know “ ‘if there is not some law prohibiting, or limiting, or regulating the employment either of children or adults, or both, in the white lead manufactory? . . . Can your furnish us with any other instances in which the Legislature has directly, or by immediate consequence, interfered with what is ironically called “Free Labour”? (i.e. dared to prohibit soul murder and infanticide on the part of the rich, and self-slaughter on that of the poor!)’ The letter also alludes to circulars drawn up by S.T.C. in favour of Sir Robert Peel’s Bill. It would be interesting to know if any of these circulars are in existence.”—Hutchins and Harrison, History of Factory Legislation, p. 29 (n.).

He was strongly opposed to the revision of the authorised version of the Bible.—Hodder, Shaftesbury, iii. p. 258.

He writes to a socialistic ally: “You have been represented to me as a socialist and an advocate of principles that I regard with terror and abhorrence; and you will therefore readily believe the pleasure with which I observed the spirit and language of your letter. I could not but apply to you the words of that Book whose expressions you have borrowed, and say, as was said to Ananias of Saul, ‘Behold, he prayeth.’ I deeply rejoice in this, because I respect your talents, I admire your zeal, and I hope to find in you a true and faithful ally in these great and final efforts for the moral, social, and religious welfare of the working people.”—Hodder, Life of Lord Shaftesbury, vol. i. pp. 407, 408. Conf. pp. 322, 323.

Compare, for Peel’s attitude with regard to the factory movement, Martineau, Thirty Years’ Peace, iii. p. 486.

Note that in 1864 Gladstone more or less came round to the policy of the Factory Acts. Hodder, Shaftesbury, ii. p. 206.

Hodder, Shaftesbury, ii. pp. 209, 210.

Simpson, Many Memories of Many People, pp. 263, 264. Bright’s words were apparently spoken Sept. 15, 1855.

Embodied in the Factory and Workshop Act, 1901.

Written in 1905.

See p. 41, ante.

The Act must be taken together with the enactments leading up to it. There appears to be some little confusion in the use of the term the Ten Hours Act. The statute most properly known by that name is 10 & 11 Vict. c. 29, passed in 1847 and coming into full force in 1848. But this statute was liable to evasion, and was rendered effective by an Act (13 & 14 Vict. c. 54) which received the Royal assent on July 26, 1850. This later Act seems to be sometimes treated as the Ten Hours Act. The general effect of the law on the passing of this Act has been thus stated in popular language:—

“It reduced the legal working day for all young persons and women, to the time between six in the morning and six in the evening, with one and a half hours for meals. This permitted ten and a half hours’ work on five days in the week; on Saturdays no protected person was to work after two. Such was the main feature of 13 & 14 Vict. c. 54, which has, since 1850, regulated the normal day in English factories.”—Hodder, Life of Lord Shaftesbury, ii. p. 202. It will be observed that it made the time of labour on Saturdays less than ten hours, and on the five other working days of the week not ten hours, but ten hours and a half.

The definition of the ages of these protected persons has varied under different Acts. Under the present law “child” means any person under the age of thirteen, or in some cases under fourteen; “young person” means any person (not being a child) under eighteen; “woman” means any woman of the age of eighteen and upwards. See Factory and Workshop Act, 1901, s. 156.

The Factory Act, 1844 (7 & 8 Vict. c. 15), sec. 32.

For the Chartist demonstration meant to overawe Parliament and ensure the enactment of the People’s Charter, see Walpole, History of England, iv. pp. 335-337.

See pp. 150, 190-205, ante.

See pp. 199, 200, ante.

In 1848 popular leaders and their opponents were the victims of a delusion fostered by the traditions of the French Revolution. Insurgents, it was supposed, were able to defeat disciplined troops. This notion rested in the main upon the successes achieved during the great Revolution, and again in 1830 and 1848, by the mob of Paris. No idea which has obtained general currency was ever less justified by fact. The belief in the mysterious force of popular enthusiasm was nothing better than a superstition. On no one occasion during the whole revolutionary history of France from 1789 up to the present day, have disciplined troops, when properly led, been defeated by insurgents. Nor has the army shown any special disposition to join the people. On this matter the events of 1848 and 1871 are decisive. In June 1848 the insurgents had every advantage, they had been arming for weeks, they fought with great enthusiasm, and they fought behind well-constructed barricades. Their opponents were to a great extent National Guards and the Garde Mobile, raised from the poorer classes of Paris, on whose absolute fidelity it was difficult to count. Yet the forces of insurrection were vanquished. In 1871 the troops employed by the Government were many of them men who had been vanquished in war. Among the defenders of the Commune there were many trained soldiers. Victory remained with the army.

See Lord Londonderry’s Manifesto, Webb, History of Trade Unionism, p. 150.

Trade unionism came far oftener into conflict with manufacturers than with landowners. See, however, as to the case of the Dorchester labourers, Webb, pp. 123, 124; R. v. Lovelace, 6 C. & P. 596; Law Magazine, xi. pp. 460, 473; and Walpole, History, iii. pp. 229, 231.

The repeal of the corn laws, though the triumph of liberalism, had one indirect effect not looked for by philosophic Radicals. The repeal so completely removed the root of bitterness which had created animosity and distrust between the different classes of the community, that, like the abandonment of chartism by the artisans, it promoted the growth of goodwill, and therefore the formation of an alliance between all persons who, to whatever class or party they belonged, had common proclivities towards socialism.

Publication of Miss Martineau’s translation of Comte’s Philosophie Positive, 1853.

Comte, Cours de Philosophie Positive, iv. 264-280.

See on Mill’s position, Lecture XII. post.

The year in which was passed the Act under which was constructed the Stockton and Darlington Railway. See Annual Register, 1823, p. 241.

Here, as in other cases, a law favouring the power of combination has of necessity a twofold, and in a certain sense a contradictory effect. The Companies Acts, introducing the principle of partnerships with limited liability, create an extension of individual freedom. But the same Acts, in so far as they transfer the management of business from the hands of private persons into the hands of corporate bodies, substitute combined for individual action.

See for a carrier’s common law liability, Leake, Contracts, 4th ed. p. 132, and for its modification by statute, the Carriers Act, 1830, 11 Geo. IV. & 1 Will. IV. c. 68.

“Whatever,” writes Mill, “if left to spontaneous agency, can only be done by joint-stock associations, will often be as well, and sometimes better done, as far as the actual work is concerned, by the State. Government management is, indeed, proverbially jobbing, careless, and ineffective, but so likewise has generally been joint-stock management. . . . The defects . . . of government management do not seem to be necessarily much greater, if greater at all, than those of management by joint stock.”—Mill, Political Economy, ch. xi. s. xi. p. 580.

See Leonard Darwin, Municipal Trade, for a careful examination of the cases in which a trade may or may not be carried on with advantage by the State, and remember that the State takes a part in trade as much when it acts through local bodies as when it acts through the central government.

The passing of the Ten Hours Act, and subsequent Acts passed prior to 1868 which extend its operation, afford an apparent but not a real exception to this statement. See pp. 220-232, ante.

29 & 30 Vict. c. 122. See Pollock, Land Laws, pp. 182-188.

The last Parliament elected under the Reform Act of 1832 came to an end on July 31, 1868.

Mill, Representative Government, pp. 56, 57 (ed. 1861).

See Webb, History of Trade Unionism, p. 231.

John Austin was as much opposed to any further advance towards democracy as was Lowe. See Austin’s pamphlet on Reform (1859). Note, too, that, if John Mill assented to a democratic Reform Bill, he desired every advance in the democratic direction to be accompanied by checks which he fancied would protect the rights of minorities.

See Brougham’s Speeches, ii. pp. 600 and 617.

Compare the language of Sydney Smith, cited, p. 213, ante, and the Benthamite programme of parliamentary reform, and of the ends to be attained thereby set forth in an article published by George Grote in 1831.

See Minor Works of George Grote (Bain’s ed. 1873), pp. 1-55.

Souvenirs d’Alexis de Tocqueville, publiés par Le Comte de Tocqueville, 1893, pp. 15, 16.

Métin, Le Socialisme sans doctrines. The expression is used in reference to socialistic experiments in Australia. See W. P. Reeves, State Experiments in Australia and New Zealand.

See pp. 41-47, ante.

The Radical Programme, with a Preface by the Right Hon. J. Chamberlain, M.P. Reprinted, with additions, from the Fortnightly Review: Chapman and Hall, 1885.

A thinker may without inconsistency repudiate the faith of individualists in the unlimited benefits to be conferred on mankind by the extension of individual freedom, and yet rate very low the advantages which any community can derive from the action of the State. A doctor may have little trust in the recuperative power of nature as a cure for a serious malady, and yet may warn the sufferer that popular nostrums will hasten instead of arresting the progress of the disease. But statesmen or reformers can never permanently hold this attitude of balanced and unsanguine scepticism.

The State often falls short, in the eyes of an individualist, of affording to a citizen all the protection which is justly due to him. If X breaks a contract made with A, or libels A, the latter is clearly entitled, assuming that he himself has done nothing unlawful, to compensation, as complete as possible, for the injury he has suffered. He ought to be paid damages, first, for the loss arising from, e.g. the breach of contract; next, for the costs he has incurred in bringing an action against X; and, lastly, for the loss of time and trouble involved in bringing the action. Under English law he may possibly recover, though he rarely does, complete compensation for the damage arising from the breach of contract; he never, or hardly ever, recovers the whole of the costs actually incurred in bringing the action; he receives no compensation for the loss of time and the trouble incurred in the assertion of his rights. The antiquated, though not even yet quite obsolete idea, that the law ought to discourage litigation, means in reality that a law-abiding citizen who has suffered an injury from the inability or neglect of the State to defend his rights, is rightly fined for trying to obtain compensation for the wrong he ought never to have suffered.

See the Truck Acts, 1831, 1 & 2 Will. IV. c. 37; 1887, 50 & 51 Vict. c. 46; 1896, 59 & 60 Vict. c. 44; and Stephen, Comm. ii. (14th ed.), p. 281.

See the Workmen’s Compensation Acts, 1897, 60 & 61 Vict. c. 37; 1900, 63 & 64 Vict. c. 22.

See Acts, 1875, 38 & 39 Vict. c. 92; 1876, 39 & 40 Vict. c. 74; 1883, 46 & 47 Vict. c. 61; 1887, 50 & 51 Vict. c. 26; 1890, 53 & 54 Vict. c. 57; and 1895, 58 & 59 Vict. c. 27.

See the Factory and Workshop Acts, 1878 to 1895, and especially 1901, 1 Edw. VII. c. 22.

Note the provisions for the protection of sailors from imposition (Merchant Shipping Act, 1894, 57 & 58 Vict. c. 60, ss. 212-219). Note also the curious extension given to the doctrine long ago established by the Courts of Equity, that where X induces A to enter into a contract through the use of undue influence, the contract is voidable at the instance of A. This doctrine was reasonable enough where X made an unconscientious use of authority or power over A, arising from the special relation between X and A, as, for instance, where X is A’s parent, or stands towards A in loco parentis, or is A’s spiritual adviser or doctor; but the doctrine has in one set of cases, at any rate, been extended far beyond this, and has been used as a means for enabling any person who expects, whether strictly as heir or merely on account of a relation’s goodwill, to succeed to property, and being in want of money, makes a “catching bargain,” as it is called, with regard to such expected property, to repudiate the contract, with the result that in some instances a man well past twenty-one is given the protection against the results of a hard bargain which the common law gives only to infants—that is, to persons below twenty-one (see Aylesford v. Morris (1873), L.R. 8 Ch. 484). There is thus constituted a new class of protected persons. It is not an unreasonable conjecture that the extension given to the idea of undue influence was originally suggested by the usury laws, and, after the repeal of the usury laws, was supported by the Courts, partly with a view to diminish the effect of the repeal.

23 & 24 Vict. c. 84.

62 & 63 Vict. c. 51.

See the Agricultural Holdings Acts, 1875 to 1895; the Workmen’s Compensation Act, 1897, 60 & 61 Vict. c. 37.

38 & 39 Vict. c. 86.

34 & 35 Vict. c. 31.

39 & 40 Vict. c. 22.

See pp. 191-201, ante.

It may be “actionable” though not indictable. [But see now the Trade Disputes Act, 1906, 6 Edw. VII. c. 47.]

Conspiracy, etc. Act, 1875 (38 & 39 Vict. c. 86), s. 3, 1st par.

38 & 39 Vict. c. 86, s. 7.

See p. 195, ante.

34 & 35 Vict. c. 31. A trade union may, it is submitted, now be described as a semi-legal association. It is not of necessity, or indeed in most cases a strictly unlawful society, since the only objection to its lawful character may be that its object is the restraint of trade, and this objection is, under the Conspiracy, etc. Act, 1875, no longer tenable; but a trade union may obviously pursue some other objects, e.g. the interference with the right of an individual workman to take service on such terms as he sees fit; and it is possible, at any rate, that the pursuance of such an object may make a trade union an unlawful society.

It is “enacted in general terms that every person who, with a view to compel any other person to abstain from doing, or to do any act which such person has a legal right to do or abstain from doing, wrongfully and without legal authority, uses violence to or intimidates such person, follows him about, hides his tools, watches or besets his house, or follows him through the streets in a disorderly way, shall be liable to three months’ hard labour.”—Stephen, Hist. iii. p. 226, and see 38 & 39 Vict. c. 86, s. 7. Certain specific breaches of contract which are likely to cause injury to persons or property are in like manner made criminal.—Ibid. ss. 4, 5.

i.e. the Combination Act, 1800, and the law of conspiracy as then interpreted. See pp. 95-102, ante.

Conf. Memorandum by Sir F. Pollock on Law of Trade Combinations, Fifth and Final Report of Labour Commission, 1894 [c. 7421], pp. 157-159.

Quinn v. Leathem [1901], A. C. 495; Taff Vale Railway Co. v. Amalgamated Society of Railway Servants [1901], A. C. 426; Giblan v. National Amalgamated Labourers’ Union [1903], 2 K. B. (C. A.) 60. Compare Allen v. Flood [1898], A. C. 1, and Mogul Case [1892], A. C. 25.

See pp. 95-102, ante.

See pp. 191-201, ante.

See pp. 267-271, ante.

See Murray’s Dictionary, “Boycott.”

See Appendix, Note 1, Right of Association.

30 & 31 Vict. c. 105.

59 & 60 Vict. c. 30. The Acts repealed by the latter Act are the Workman’s Arbitration Act, 1824, 5 Geo. IV. c. 96; the Councils Conciliation Act, 1867, 30 & 31 Vict. c. 105; the Arbitration (Masters and Workmen) Act, 1872, 35 & 36 Vict. c. 46.

See Howell, Labour Legislation, etc. p. 436. “In all essential respects the questions adjudicated upon by justices of the peace relating to labour disputes were similar to those pertaining to trading and commercial disputes, though the conditions of reference, pleading, and adjudication were decidedly different. In the case of labour the dispute to be dealt with had reference to work actually done, and as to wages due therefor; or to lengths of work, in the case of silk, cotton, woollen, or other textiles; or to deductions for alleged bad work. Various other matters would often arise as to time of finish of work, delivery, and as to frame rents and other charges. But all these questions related to work done, not done, damaged, not delivered, and otherwise, at the date of complaint and arbitration. Future rates of wages—amounts to be paid—had no lot or part in legislation except possibly as to finishing a certain article in hand. It was not arbitration or labour questions, as we now understand the subject, but adjudication upon disputed points there and then at issue. How, indeed, could it be otherwise? Wages were arbitrarily fixed in very many industries.”—Howell, p. 436.

It must take the form either of mere inquiry into the circumstances of a particular dispute, or of arbitration on the application of both the parties to such dispute.

Compulsory arbitration must be carried through either by the Courts or by the Executive, but it may be doubted whether either of these bodies is fit for the work.

(1) The judges are not by nature qualified for real arbitration, as regards matters of which they can have no special knowledge; and the Courts possess no proper machinery for enforcing their awards against the parties to a trade dispute. To put the judges, it may be added, to do work which is not judicial, is certain to deprive them of that repute for perfect impartiality which is in England their special glory.

(2) The Executive is a more appropriate body than the Courts for the enforcement of an award, but a Parliamentary Cabinet does not and cannot possess that impartiality, which is the primary requisite for the performance of his duties by an arbitrator. A ministry called upon to adjudicate upon a dispute between an employer and his workmen will inevitably, in giving judgment, think a good deal of the effect which the judgment may produce at the next general election.

No attempt is here made to give, even in outline, a history or a full statement of the law on these topics; they are dealt with only in so far as they illustrate the tendency towards the equalisation of advantages.

See Balfour, Educational Systems of Great Britain and Ireland (2nd ed.).

The statements made here as to education do not refer to Scotland or Ireland.

In 1807 Whitbread introduced a Bill, which passed the House of Commons, for the foundation of a school in every parish, with power to employ local rates.

In 1816 Brougham obtained a Select Committee to Inquire into the Education of the Lower Orders. In 1820 he brought in an Education Bill which did not pass into law. In 1811 was founded the National Society for Promoting the Education of the Poor in the Principles of the Established Church, and in 1808 the British and Foreign School Society, which in effect represented Dissenters. These facts, as also the foundation of Sunday Schools, show the gradual growth, since at any rate the beginning of the nineteenth century, of the conviction that it was the duty of the State or the public to provide education for the poor.

The mere fact that a country maintains a national system of education does not of itself necessarily prove the prevalence of socialistic ideas, as witness the history of popular education in Scotland and in New England. But it is true that the gradual development of the conviction that the nation must provide for the education of the people, and make such provision at the expense of the nation, may be, and certainly has been in England, connected with the development of collectivism.

Even as late as 1859, John Mill deprecated the direct assumption by the State of educational functions, and contended that it ought to do no more than compel parents to provide for the elementary education of their children.—Mill, On Liberty, pp. 188-194.

“It shall be the duty of the parent of every child to cause such child to receive efficient elementary instruction in reading, writing, and arithmetic, and if such parent fail to perform such duty, he shall be liable to such orders and penalties as are provided by the Act.”—Elementary Education Act, 1876, 39 & 40 Vict. c. 79, s. 4. See Balfour, Educational Systems, 2nd ed. p. 24.

The Elementary Education Act, 1880, 43 & 44 Vict. c. 23.

54 & 55 Vict. c. 56, s. 1.

See Balfour, pp. xxi.-xxiii.; Stephen, Comm. iii. (14th ed.) 132, and compare generally as to the present state of the law relating to education, ibid. 127-144. The chapter on this subject has had the advantage of revision by F. W. Hirst.

I have no wish to overlook the extent to which voluntary contributions, made by the members of different religious bodies, supply in part the means of national education, but it cannot be disputed that the education of the people is now in the main paid for by the nation.

The cost of elementary education to the Imperial Exchequer, as provided for in the Estimates, is for the financial year 1904-5, £10,998,000. This is made up as follows:—

The corresponding figures for the financial year 1903-4 were:

In addition to this the cost of training of teachers and pupil teacher instruction, which is now a part of education other than elementary, is estimated at—

To the amounts here mentioned must, I conceive, be added the sums raised from the local rates, which in 1901 amounted in round numbers to £6,000,000. The sums paid in one shape or another by the nation to maintain the elementary education of the people of England cannot, therefore, apparently fall much short, if at all, of £18,000,000.

Legislation with regard to elementary education illustrates the influence exerted by the cross-current of ecclesiastical opinion.

Paley, Moral Philosophy, book iii. part i. ch. xi. “Contracts of Labour” (12th ed. 1799), vol. i. p. 168.

The true basis of the liability of an employer for damage caused to others through the negligence of his servant or workman, is that every man must so conduct his affairs as not to injure third parties either by his own negligence or that of the agents whom he employs.

See Priestley v. Fowler (1837), 3 M. & W. 1, and the American case, Farwell v. Boston Railroad Corporation (1842), Bigelow, Leading Cases, 688.

This economic view was supplemented by the consideration that a servant or workman may be partially responsible for an accident from which he suffers, even though he may not contribute directly to its occurrence. Thus, if the workmen in a powder magazine habitually and contrary to orders smoke there, and N, who is one of their number, shares or tolerates this habit, he may well be responsible for the explosion of which he is the victim, even though it is not caused by a spark from his own pipe.

In 1868, indeed, the House of Lords forced the doctrine upon the reluctant Courts of Scotland, Wilson v. Merry, L.R., 1 Sc. Ap. 326.

It still in some instances remains in force. It applies to actions under the Employers’ Liability Act, 1880, 43 & 44 Vict. c. 42, which do not fall within sec. 1. It applies also to actions by domestic servants, who do not fall within this Act. See Macdonell, Master and Servant, ch. xv. The fact that after the Compensation Acts have placed the rights of workmen and the liability of employers on a new basis, the Employers’ Liability Act, 1880, which belongs to an older and abandoned view of the relation between employers and workmen, should not have been repealed, and that the doctrine of common employment should not have been abolished, is characteristic of the fragmentary and unsystematic manner in which the law is amended in England.

Extended three years later so as to apply to agricultural labourers. Workmen’s Compensation Act, 1900, 63 & 64 Vict. c. 22. The principle of the Compensation Acts is not as yet [1905] extended to domestic servants. It may be conjectured with some confidence that this extension will sooner or later take place.

See the Workmen’s Compensation Act, 1897 (60 & 61 Vict. c. 37), s. 3.

See Leonard Darwin, Municipal Trade, pp. 1-27; Redlich and Hirst, Local Government in England, i. pp. 111-133.

This statement may be disputed, but is (it is submitted) in substance true. Municipal corporations, or other local authorities created for a special purpose, did in some instances, long before the beginning of the nineteenth century, carry on concerns which might be called trades (e.g. the supply of water for a particular locality); but these concerns were closely connected with municipal administration, and could not fairly be described as municipal trading.

5 & 6 Will. IV. c. 76.

See pp. 118, 119, ante.

In Bath “every quarter of the town was under the care of a separate board, except one quarter which was totally unprotected.”—Redlich and Hirst, Local Government, i. p. 120.

The belief was widespread that a town without a charter was a town without a shackle.

“Manchester,” observes Aikin (in 1795), “remains an open town; destitute (probably to its advantage) of a corporation, and unrepresented in Parliament.” See Leslie Stephen, English Utilitarians, i. pp. 99, 100.

Darwin, pp. 3, 4.

Ibid.

The extension of municipal business has been constantly accompanied and accomplished by the compulsory purchase on the part of local authorities, of land, or other property, belonging to private individuals. It is worth notice that compulsory purchase might more accurately be termed compulsory sale, and always involves the possibility, or probability, that a man may be compelled to sell property either which he does not wish to sell at all, or which he does not wish to sell on the terms that he is compelled to accept. Such compulsory sale is often justified by considerations of public interest, but it always means a curtailment of the seller’s individual liberty.

14 & 15 Vict. c. 34.

See Sidney Webb, Socialism in England (1890), pp. 116, 117.

Morley, Life of Cobden, i. pp. 302, 303.

Seats for Shop Assistants Act, 1899 (62 & 63 Vict. c. 21), and compare the Shop Hours Acts, 1892-1895, and the Employment of Children Act, 1903 (3 Edw. VII. c. 45).

See the Shop Hours Act, 1904 (4 Edw. VII. c. 31).

The Public Health Act, 1875 (38 & 39 Vict. c. 55). See for a list of a large number of separate Acts more or less referring to public health, Steph., Comm. iii. (14th ed.) p. 77, and note that the Acts there referred to, which extend from the Knackers Acts, 1786 and 1844 (26 Geo. III. c. 71; 7 & 8 Vict. c. 87), to the Factory and Workshop Act, 1901, are all administered by District Councils. It should never be forgotten that powers given to local authorities are, no less than powers possessed by the central government, in reality powers exercised by the State.

14 & 15 Vict. c. 34.

53 & 54 Vict. c. 70.

63 & 64 Vict. c. 59.

See Housing of Working Classes Act, 1890, especially s. 57.

Allotments Acts, 1887-1890 (50 & 51 Vict. c. 48, and 53 & 54 Vict. c. 65).

See Report of Charity Organization Society on Relief of Distress due to Want of Employment, Nov. 1904.

Which has been fostered by the provisions of the Local Government Act, 1894 (56 & 57 Vict. c. 73), s. 20, as to the election and qualification of poor-law guardians.

See Fawcett, Pauperism, pp. 26-35. In 1872 he hoped for the gradual abolition of the poor law itself. Fawcett, Essays and Lectures, pp. 83, 84.

See Steph., Comm. ii. (14th ed.) 295; and Representation of People Act, 1832, s. 36; Parliamentary and Municipal Registration Act, 1878, ss. 7, 12.

57 & 58 Vict. c. 25.

4 Edw. VII. c. 32. “In granting out-door relief to a member of any friendly society, the board of guardians shall not take into consideration any sum received from such friendly society as sick pay, except in so far as such sum shall exceed five shillings a week” (s. 1, sub. s. 2).

The effect of this enactment seems to be that, assuming ten shillings a week to be the sum adequate to save a man who has no property whatever from actual destitution, an applicant for relief who, as member of a friendly society, receives a pension of five shillings a week, will be entitled to receive by way of out-door relief ten shillings more, and thus receive five shillings beyond his strict needs. Nor is it easy to see how a board of guardians can now practically exercise the power, which the board still apparently possesses, of refusing to give out-door relief at all to a person entitled to sick pay from a friendly society. If so the Out-door Relief (Friendly Societies) Act, 1904, distinctly strikes at attempts to cut down out-door relief.

The Medical Relief Disqualification Removal Act, 1885. See Steph., Comm. ii. 296. Leading statesmen, whether they call themselves Conservatives or Liberals, are ready or eager to go still farther along the dangerous path on which Parliament has hesitatingly entered. The President of the Local Government Board is ready, by straining to the very utmost powers conferred upon him for another purpose under the Local Authorities (Expenses) Act, 1887 (50 & 51 Vict. c. 72), s. 3, to sanction expenditure by Borough Councils which is admittedly ultra vires, and thus create a sort of Borough Council common poor-fund, which may in effect give to the unemployed relief untrammelled by the restrictions imposed by the poor law (see Report of Charity Organization Society, 1904, p. 6); and Sir H. Campbell-Bannerman, as leader of the Opposition, has announced that he is in favour of exemption from disenfranchisement of the recipients of temporary poor law relief” (Morning Post, 1st December 1904, p. 9).

See p. 275, ante.

“No person admitted to a [cottage] home shall be considered a pauper, or be subject to any such disabilities as persons in receipt of parochial relief” (Cottage Homes Bill, 1904, sec. 7).

“A person whose name is on the pensioners’ list shall not be deprived of any right to be registered as a parliamentary or county voter by reason only of the fact that he or she has been in receipt of poor law relief” (Old Age Pensions Bill, sec. 8).

Might they not have smiled grimly at the notion of a parliamentary enactment that a man supported by parish relief and provided at the expense of the parish with a comfortable cottage should not be “considered a pauper” (Cottage Homes Bill, sec. 7), and have suggested that citizens should be trained to dread the reality rather than to shun the name of pauperism? What would they have thought of the sentiment or the sentimentality which has induced the Local Government Board to sanction the suggestion that in registers of births a workhouse should be referred to by some name (e.g. Little Peddlington Hall), which might conceal the fact that a child there born was born in a workhouse and not in a private residence?

See p. 266, ante.

“An action shall not be brought against a trade union . . . for the recovery of damage sustained by any person or persons by reason of the action of a member or members of such trade union” (Trade Dispute Bill, 1904, sec. 3).

“An action shall not be brought against a trade union, or against any person or persons representing the members of a trade union, in his or their respective capacity” (Trade Dispute Bill, No. 2, sec. 3).

The latter proposal seems intended to exempt trade unions from all civil liabilities whatever.

If in the Trade Dispute Bills the term “trade union” is to bear the meaning given to it in the Trade Union, etc., Act, 1876 (39 & 40 Vict. c. 22), sec. 16, a combination of employers would apparently be, if the Bill should pass into law, as exempt from all civil liability as a combination of workmen. [Compare, however, the Trade Disputes Act, 1906, 6 Edw. VII. c. 47.]

See pp. 153-158, ante.

The Bills which aim at increased restrictions on the sale of liquor hardly need separate notice, for they represent only the conviction, which for years has been known to exist, that the traffic in drink involves so many evils that it ought to be kept within narrow limits, even at the cost of what teachers, such as John Mill, considered a grave inroad on individual liberty. The only feature worth special remark is the proposal, based on precedents drawn from the laws of Canada and the United States, to place an anomalous and most extensive liability on any seller of drink for injuries done by the purchaser to a third person during a state of intoxication wholly or partially arising from the drink he has bought (see Liquor Seller’s Liability Bill, 1904, s. 2). Under this Bill, if X, a licensed person, sells drink to Y for consumption on such person’s premises, which wholly or in part causes Y’s intoxication, X would be liable to A for any injury done to A by Y whilst thus intoxicated.

See W. P. Reeves, State Experiments in Australia and New Zealand.

See pp. 23-27, ante.

On a movement which has not yet reached its close, it is impossible to pronounce anything like a final judgment. It may be allowable to conjecture that, if the progress of socialistic legislation be arrested, the check will be due, not so much to the influence of any thinker as to some patent fact which shall command public attention; such, for instance, as that increase in the weight of taxation which is apparently the usual, if not the invariable, concomitant of a socialistic policy.

In the same year was published Adam Smith’s Wealth of Nations.

Afterwards Lord Chancellor, under the title of Baron Loughborough, and created in 1801 Earl of Rosslyn.

Bentham, Principles of Morals and Legislation, ch. i. p. 5 (n).

See p. 165, ante.

See p. 136, ante.

The English Government, even during the supremacy of reactionary toryism, did not attempt to build up a stronger administrative system. “The revolutionary movements of 1795 and of 1815-1820 were combated, not by departmental action, but by Parliamentary legislation. The suspension of the Habeas Corpus Act, the passing of the Libel Act, and of the ‘Six Acts’ of 1819, were severely coercive measures; but they contain no evidence of any attempt to give a continental character to administration. In so far as individual liberty was destroyed, it was destroyed by, and in pursuance of, Acts of Parliament.”—Redlich and Hirst, Local Government in England, ii. p. 240.

On the other hand, there has been built up since 1832 a whole scheme of administrative machinery. “The net result of the legislative activity which has characterised, though with different degrees of intensity, the period since 1832, has been the building up piecemeal of an administrative machine of great complexity, which stands in as constant need of repair, renewal, reconstruction, and adaptation to new requirements as the plant of a modern factory. The legislation required for this purpose is enough, and more than enough, to absorb the whole legislative time of the House of Commons; and the problem of finding the requisite time for this class of legislation increases in difficulty every year, and taxes to the utmost, if it does not baffle, the ingenuity of those who are responsible for the arrangement of Parliamentary business.”—Ilbert, Legislative Methods, pp. 212, 213. See generally Redlich and Hirst, i. pp. 1-216.

“He [Bentham] attempts to solve anew the problem of the relations between local and central government. In his system the Legislator is omnipotent. His local ‘field of service’ is the State, his logical ‘field of service’ is the field of human action. . . . But the central Parliament and its organ, the Ministry, always preserve a supervisory control over local administration. Here, then, is formulated the principle, novel to the historic constitution of England, that there is no province or function of public administration in which a central government in its administrative as well as its legislative capacity is not entitled to interfere. The new principle of ‘inspectability’ is expressed on the one hand by the supervisory control of the Ministry, on the other by the subordination of the Local Headman. The Minister at the top controls the Headman at the bottom of the official ladder. The light at the centre radiates to the very circumference of the State. In the next chapter it will be shown how potent a force this new idea of central administrative control proved in the reformation of English local government.”—Redlich and Hirst, i. pp. 95, 96; compare pp. 89, 106-108.

The true ground of Herbert Spencer’s attack on utilitarianism is that the utilitarians, in the pursuit of the greatest happiness for the greatest number, often sacrificed the freedom of individuals to the real or supposed benefit of the State, i.e. of the majority of the citizens. See The Man v. The State, and Social Statics.

Benthamites, indeed, differed among themselves more deeply than they probably perceived, as to the relative importance of the principle of utility and the principle of non-interference with each man’s freedom. Nominally, indeed, every utilitarian regarded utility as the standard by which to test the character or expediency of any course of action (see Mill, On Liberty, p. 24). But John Mill was so convinced of the value to be attached to individual spontaneity that he, in fact, treated the promotion of freedom as the test of utility; other utilitarians, e.g. Chadwick, were practically prepared to curtail individual freedom for the sake of attaining any object of immediate and obvious usefulness, e.g. good sanitary administration.

See pp. 62-302, ante.

See pp. 36-41, ante.

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 legislative opinion 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.

See pp. 40, 41, ante.

It is well to remember that the Established Church of England was in 1832 indissolubly united with the Irish Church Establishment.

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 to any law or institution which makes a man’s civil or political rights dependent upon his religious belief. As far as the ecciesiastical legislation of the nineteenth century goes, one need not draw any marked distinction between the era of individualism and the era of collectivism, though the gradual rise of collectivism may have indirectly increased the influence of clerical opinion.

Whenever classes of citizens are for the first time admitted to political rights, their immediate influence is exaggerated. In 1832, at any rate, Tories and Radicals alike imagined that the ten-pound householders had obtained an amount of power far greater than they were really able to exert.

Trevelyan, Life of Macaulay, i. p. 303.

See Arnold, Miscellaneous Works, p. 259; Stanley, Life of Arnold, i. p. 336.

Tracts for the Times, No. 1, p. 1.

See Reign of Queen Victoria, i., Religion and the Churches, by E. Hatch, pp. 364-393.

In Ireland, indeed, Sydney Smith favoured, in common with most of the Whigs, the policy of concurrent endowment; he showed no wish to apply it to England. In this there was no inconsistency. The maintenance in Ireland of a Church hateful to the vast majority of the people was exactly the kind of wrong which Sydney Smith and the Whigs felt most keenly. Concurrent endowment, moreover, might possibly cool the fanaticism of the Roman Catholic priests, and, as far as was compatible with justice, prolong the existence of the Protestant Establishment.

For the attitude of Lord Melbourne in 1834 see Annual Register, 1834, p. 199. “All attempts at a religious comprehension of the Dissenters, and they had been made by some of the greatest prelates that ever adorned the episcopal bench, had failed; but, at all events, the House might make a step towards the object by a general civil comprehension of the Dissenters, and by admitting them to the benefits to be derived from the public institutions of the country. He [Lord Melbourne] apprehended that the Universities were originally founded for the support of literature and science; but he agreed that it was most desirable that Church of England principles should prevail in their system of education, and he would reserve to them complete their right to teach the religion of the country. At the same time, however, though he would not rashly meddle with honest prejudices and well-founded feelings, he would admit Dissenters for the sake of general peace and union; and in doing so he would only be sanctioning that which the most distinguished members of these very institutions had declared might be safely effected.”—Ibid.

One school of thinkers, who really stood apart from both the Whigs and the Tories of their time, desired to comprehend the majority of English Protestants within the limits of the Establishment. It consisted of the small, though remarkable, body of men of whom Dr. Arnold is the best representative. He and his followers took up a peculiar position which hopelessly deprived them of influence. To the Low Churchmen of the day their soundness on doctrines, which to Evangelicals were of vital import, was open to the gravest suspicion. Anglicans were thoroughly estranged from a school whose leader offered the most strenuous opposition to every form of sacerdotalism. Whigs and Radicals could not act with Arnold when they found that his honest insistence upon the formal recognition of Christianity, as the religion of the State, compelled him to withdraw from all connection with the London University. In truth he was hampered at every step by his theory of the identity of State and Church. His teaching, though by no means the same as, is historically connected with, the Broad Churchmanship of a later day represented by Dean Stanley. But neither Arnold’s immediate disciples nor the Broad Churchmen produced much permanent effect on the legislation of the nineteenth century. They were unable to remove the Athanasian Creed from the Liturgy of the Church of England; they could not even relegate it, as it has been banished by the disestablished Church of Ireland, to an appendix to the Prayer-Book.

Bain, James Mill, pp. 22, 23.

Bain, James Mill, pp. 387, 388.

Some authorities date it from Keble’s sermon on National Apostasy, 1833. Coleridge, Memoir of Keble, p. 218. Incapacity for dealing with ecclesiastical questions characterised the philosophic liberalism of the eighteenth century. To this defect Quinet ascribes the mistakes and failures of revolutionary statesmanship in all matters of Church policy. An idea was certainly current at the end of the eighteenth and the beginning of the nineteenth century that religious differences would become politically unimportant. “Let us,” writes Burke, in 1792, “form a supposition (no foolish or ungrounded supposition) that in an age when men are infinitely more disposed to heat themselves with political than religious controversies, the former should entirely prevail, as we see that in some places they have prevailed, over the latter; and that the Catholics of Ireland, from the courtship paid them on the one hand, and the high tone of refusal on the other, should, in order to enter into all the rights of subjects, all become Protestant dissenters, and as the others do, take all your oaths. They would all obtain their civil objects; and the change, for any thing I know to the contrary (in the dark as I am about the Protestant dissenting tenets), might be of use to the health of their souls. But, what security our constitution in Church or State could derive from the event I cannot possibly discern. Depend upon it, it is as true as nature is true, that if you force them out of the religion of habit, education, or opinion, it is not to yours they will ever go. Shaken in their minds, they will go to that where the dogmas are fewest; where they are the most uncertain; where they lead them the least to a consideration of what they have abandoned. They will go to that uniformly democratic system to whose first movements they owed their emancipation.”—M. Arnold, Edmund Burke on Irish Affairs, Letter to Sir H. Langrishe, M.P., pp. 270, 271.

The “pamphlet [on Church Reform] was written on the supposition — not implied, but expressed repeatedly — that the Church Establishment was in extreme danger. . . . I mistook, undoubtedly, both the strength and intenseness of the movement, and the weakness of the party opposed to it; but I do not think that I was singular in my error—many persisted in it; Lord Stanley, for example, even in 1834, and the subsequent years — many even hold it still, when experience has proved its fallacy.”—Letter of Arnold in 1840, Stanley, Life of Arnold, i. (5th ed.), p. 336.

See Venn Family Annals, p. 187.

Note the friendly relations between George Butt, incumbent of Kidderminster, and the Dissenting ministers of the town, as described in the biography of Butt’s daughter, the well-known Mrs. Sherwood. The whole tone of her stories implies that community of religious convictions obliterated in her mind any marked distinction between members of the Church of England and Nonconformists. Note, too, the respect felt by members of the Church of England for Robert Hall. The action of Henry Venn of Huddersfield is also instructive. “In one case Mr. Venn certainly gave very definite assistance to the establishment of a Dissenting congregation, but this was somewhat early in his career [1771], and his son assures us that he afterwards strongly regretted the step he had taken.”—Venn Family Annals, p. 95.

“We do not differ from our brethren in the Establishment in essentials: we are not of two distinct religions: while we have conscientious objections to some things enjoined in their public service. We profess the same doctrines which they profess; . . . we have the same rule of life; and maintain, equally with them, the necessity of that ‘holiness, without which none shall see the Lord.’ ”—Robert Hall, 1831, Works, v. p. 317, cited Henson, Religion in the Schools, p. 104.

Better known as Anne Taylor.

Autobiography, etc., of Mrs. Gilbert, vol. i. pp. 78, 79.

The novelist was brought up in an atmosphere of devout and very strict Methodism. He was the son of Dr. Samuel Warren, who became a highly influential Wesleyan minister and preacher, but who later in life (1838) was admitted to orders in the Church of England.

It may be doubted whether in a single novel of high repute published before 1850 there will be found a favourable picture of an English Dissenting minister. This statement has, of course, no application to pictures of Presbyterian ministers, or of Presbyterianism by Scottish writers.

Tracts for the Times, vol. i. 1833-34, No. 1, pp. 3, 4.

See Lect. XII. pp. 399-407, post.

Political dissent or the development among Nonconformists of distinct opposition to all connection between Church and State on any terms whatever dates, it is said, from 1834. The movement for Disestablishment has combined with the High Church movement of 1835 to prevent fundamental alterations in the position or the doctrine of the Establishment. In 1832 the Church forbade Disestablishment. Political dissent, as represented by Mr. Miall and the Nonconformist newspaper, has negatived all idea of comprehension.

In 1791 Bishop Watson wrote to the Duke of Grafton: “In England we certainly want a reform, both in the civil and ecclesiastical part of our constitution. Men’s minds, however, I think, are not yet generally prepared for admitting its necessity. A reformer of Luther’s temper and talents would, in five years, persuade the people to compel the Parliament to abolish tithes, to extinguish pluralities, to enforce residence, to confine episcopacy to the overseeing of dioceses, to expunge the Athanasian Creed from our Liturgy, to free Dissenters from Test Acts, and the ministers of the establishment from subscription to human articles of faith.”—Watson’s Memoirs, p. 256, and see Bain, James Mill, p. 381. More than a century has passed since Watson wrote these words. Observe how incompletely his anticipation of impending changes has been fulfilled. Tithes are still paid, the Athanasian Creed still remains part of our Liturgy, ministers of the Church are not freed from subscription to human articles of faith.

Elliot, The State and the Church (2nd edition), pp. 104, 105.

I.e. 6 & 7 Will. IV. c. 77, which relates to bishoprics, and 3 & 4 Vict. c. 113, which relates to chapters. See also Elliot, State and Church (2nd ed.), c. xi. and Appendix, Note II., post, Ecclesiastical Commission.

In which should be included the Ecclesiastical Commissioners Acts, 1841-1885.

It is hardly necessary to state that in the Acts of 1836 and 1840, as indeed in all the Ecclesiastical Commissioners Acts, the vested interests of individuals were carefully respected.

Elliot (2nd ed.), pp. 79, 108.

I.e. that part of the revenue of any bishop or chapter which in the opinion of Parliament exceeded the amount necessary or suitable for the performance of his or its duties.

“The original composition of the corporation under the Act of 1836 seemed almost to contemplate its becoming a department of the State, so closely were its members connected with the Government of the day. The First Lord of the Treasury, the Lord Chancellor, a Secretary of State, the Lord President of the Council, and the Chancellor of the Exchequer, with the Archbishops and the Bishops of London, Lincoln, and Gloucester, with three distinguished laymen named in the Act, formed the original Ecclesiastical Commission, and provision was made that in supplying vacancies the proportion of laymen to bishops should be preserved, andthat the former should of necessity be members of the Church of England.”—Elliot, The State and the Church (2nd ed.), pp. 106, 107.

This re-endowmenthas, in fact, been effected.

Jealousy of the Commission has died away. By agreement with each bishop the Commissioners have undertaken the management of episcopal estates.

Pluralities Act, 1838, 1 & 2 Vict. c. 106; 1850, 13 & 14 Vict. c. 98; 1885, 48 & 49 Vict. c. 54.

Privy Council Appeals Act, 1832, 2 & 3 Will. 4, c. 92; the Judicial Committee Act, 1833, 3 & 4 Will. 4, c. 41; the Church Discipline Act, 1840, 3 & 4 Vict. c. 86, with which read the Public Worship Regulation Act, 1874, 37 & 38 Vict. c. 85.

See Appendix, Note II., Ecclesiastical Commission.

Bishop Watson was a man of some liberality. He could denounce pluralism (see p. 335, ante), and, according to a recent biographer, kept in view the interests of practical religion. He held, including his bishopric, and received the emoluments of, four ecclesiastical offices. He systematically neglected the duties attaching to all of them. “He lived [for some years before his death, in 1815] in his pleasant country house at Windermere, never visiting his diocese, and, according to De Quincey, talking Socinianism at his table.”—L. Stephen, English Utilitarians, i. p. 39. In 1850 Bishop Watson was an impossibility. It was the age of Bishop Proudie.

The Nonconformists Chapels Act, 1844, 7 & 8 Vict. c. 45, established a sort of Statute of Limitations enabling congregations of Dissenters to retain chapels and endowments to which they had by usage acquired a moral right, but to which, under the trust deeds of an earlier age, they had, through changes in the doctrine held by particular congregations, lost their legal right. TheAct mainly benefited Unitarians: it did not touch the rights of the Established Church, and may have passed the more easily because by 1844 many of the Anglican clergy were indifferent to the distinction between so-called orthodox and unorthodox forms of dissent.

Oaths Act, 1888, 51 & 52 Vict. c. 46. It was possible, certainly till 1869 (32 & 33 Vict. c. 68), and perhaps till 1888, that an honest atheist might have been unable, on account of his inability to take an oath, to maintain with success an action, e.g. for therecovery of a debt. See Stephen, Comm. iii. 598, 599.

And that at first in a curiously indirect manner.

Except in the case of Jews and Quakers.

The grievance was felt the more bitterly because it was in reality recent. Prior to the Marriage Act, 1753, 26 Geo. II. c. 33 (which had been re-enacted with some amendments in 1823, 4 Geo. IV. c. 76), the marriages of Nonconformists celebrated in Dissenting chapels and not in accordance with the rites of the Church of England, had, it is said, been treated as valid.

The fees moreover payable to the registrar were heavier than the fees payable on a marriage in the parish church. This, it is said, imposed a tax or fine upon persons often very poor, who were not married in church (Lilly and Wallis, Manual of Law specially affecting Catholics, pp. 54-57).

The Marriage Act, 1898, 61 & 62 Vict. c. 58.

The Matrimonial Causes Act, 1857, 20 & 21 Vict. c. 85.

Ibid. c. 55, 57, 58.

43 & 44 Vict. c. 41.

At Oxford a young man, or, as in the case of Bentham, a mere boy, was required at matriculation to subscribe the Thirty-nine Articles of the Church of England. Subscription was again required before taking the degree of B.A., and lastly before taking the degree of M.A. At Cambridge in 1832, no subscription of religious belief was, or (it is conceived) ever had been required at matriculation. If accepted by the college authorities students of any belief could come into residence, reside their full time, and enter for the degree examination. Their names would appear in the order of merit in the Tripos, but they could not actually obtain the degree without declaring themselves bona fide members of the Church of England. But whilst the University of Cambridge did not exclude Nonconformists from anything but the degree, they were practically all but excluded from the colleges. The masters and tutors would in most cases have either directly refused admission to a Nonconformist, or if he had been admitted, would probably have forced him to attend the college chapel.

At Oxford, in short, Nonconformists were excluded by the rules of the university, at Cambridge they were virtually excluded by the rules of the colleges. All but a very few Dissenters were, till late in the nineteenth century, excluded both by the atmosphere of the place and by the conduct of the college authorities. See Appendix, Note III., University Tests.

Early in the nineteenth century a popular writer could describe our universities with gross technical inaccuracy, but with much substantial truth, as academies for the education of ministers of the Church of England.

Policy or accident favoured the opposition, supported in the main by the opinion of Churchmen, to a necessary reform. The London University never became, in a strict sense, a university at all. University College provided a place of liberal education for Dissenters, just as King’s College provided in London a place of liberal education for Churchmen. The London University itself became at last nothing but an examining body. The result was that, while the agitation for the abolition of tests at the national universities was checked and weakened, the foundation in London of a really national university open to every class of the nation was prevented.

The Oxford University Act, 1854, 17 & 18 Vict. c. 81.

At Cambridge the Cambridge University Act, 1856, 19 & 20 Vict. c. 88, threw open to Nonconformists all ordinary bachelors’ degrees, all endowments tenable by undergraduates, and the nominal title of M.A.; but under that Act Nonconformist M.A.’s were still kept out of the senate and the parliamentary constituency. See Sir George Young, University Tests, p. 53, and Appendix, Note III. post.

Universities Tests Act, 1871, 34 Vict. c. 26, and College Charter Act, 1871, 34 & 35 Vict. c. 63.

The Deanery of Christ Church.

As at Oxford, the university pulpit is closed to every Nonconformist minister, and the services in the colleges are the services of the Church of England. An avowed or conscientious Nonconformist cannot become a Doctor of Divinity. The theological professorships are, with one exception, or possibly two exceptions, not open to any but Churchmen. No layman has, in fact, ever been elected a theological professor.

Compare Henry Sidgwick’s statement in 1898 as to the extent to which theological teaching was at Cambridge left in the hands of the Church of England by the Universities Tests Act, 1871.—H. Sidgwick, A Memoir, p. 564.

The law does not forbid the foundation in the universities of denominational colleges, such e.g. as Hertford College. See R. v. Hertford College (1877), 2 Q.B.D. 590; (1878) 3 Q.B.D. (C.A.) 693.

6 & 7 Will. IV. c. 71 to 54 & 55 Vict. c. 8.

31 & 32 Vict. c. 109.

Though this is so as to newly imposed Church rates, the Act of 1868 “contained provisions preserving the old system in certain specified instances, generally of only local application.” See Elliot, State and Church, 2nd ed. p. 43 (n.).

In 1834 the Whig ministry offered the Church a considerable pecuniary compensation for the abolition of Church rates (Annual Register, 1834, pp. 207, 213). Both the offer and the refusal show a recognition of the strength still possessed by the Establishment.

E.g. by an examination of the policy pursued and the Acts passed with regard to the elementary education of the people of England.

See Gorham v. Bishop of Exeter, heard and determined in the Privy Council (8th March 1850). E. F. Moore.

Sheppard v. Bennet (No. 2) (1871), L.R. 4, P.C. 371.

E.g. Williams v. Bishop of Salisbury, and Wilson v. Fendall (1864); Brodrick v. Fremantle, Ecc. Cas. 247.

It is, of course, indisputable that at any rate during the last fifty years and more public opinion has changed, though the extent of the change is liable to be a good deal exaggerated, as to the moral obligations incurred by subscription to the Articles. The circumstance which raises a suspicion that the change in public opinion may be less than is generally supposed, is the very slight effect produced thereby on legislation. Throughout the nineteenth century many have been the Churchmen, whether clerics or laymen, who have objected to the retention in the Church services of the Athanasian creed, but the efforts for its removal from the services by legislation have been few and entirely unsuccessful. It is further noteworthy that clergymen and others, who maintain that subscription or declaration of assent to the doctrine of the Church of England leaves almost unlimited freedom of dissent from that doctrine, do not make any serious attempt to obtain a legislative declaration of the soundness of an opinion on which both legally, and in a certain sense morally, depends the whole position of a clergyman of the Church of England.

28 & 29 Vict. c. 122.

33 & 34 Vict. c. 91.

In nothing is the influence of Church opinion more marked than in the language of the Clerical Disabilities Act, 1870, 33 & 34 Vict. c. 91. This statute, which enables a clergyman to resume all the rights and duties of a layman, and to free himself, as far as the State is concerned, from the liabilities, whilst giving up the rights, of a clergyman of the Church of England, contains no expression which either affirms or denies the indelibility of orders.

32 & 33 Vict. c. 42.

If anyone looks at politics from the somewhat abstract point of view suggested by these Lectures he will find a peculiar interest in the career of Gladstone. Such an observer will note that Gladstone from peculiarities of character and education was able to unite, whether consistently or not, the sentiment of liberalism with the ecclesiastical sentiment belonging to a High Churchman. In the sphere of economics, and even of politics, he to a great extent accepted the doctrines of Benthamite individualism as represented by the Manchester school. In the ecclesiastical sphere he accepted, it would seem, High Church principles as represented by Archdeacon Manning, until the archdeacon was transformed into a Roman Catholic ecclesiastic. This singular combination of sentiments or principles, which are rarely united in the mind of one man, contributed greatly to Gladstone’s influence. The capacity for honestly sharing the varying, and even the inconsistent, sentiments of his age augments the influence of a statesman.

See Ilbert, Legislative Methods, pp. 6-8; Pollock, Essays in Jurisprudence and Ethics, p. 237; Pollock, First Book of Jurisprudence (2nd ed.), Pt. II. ch. vi.

These rules will assuredly be enforced by the Courts, and are therefore laws. True indeed it is that the function of an English Court is primarily to decide in accordance with legal principles any particular case which comes before it. It is the interpreter, not the maker of a law. As, however, “it may with equal verbal correctness be affirmed in one sense, and denied in another, that interpretation (whether performed by judges or by text-writers) makes new law” (First Book of Jurisprudence (2nd ed.), p. 236), the question whether we ought to use such expressions as judge-made law or judicial legislation is, for the purpose of these Lectures, of no real consequence. See Appendix, Note IV., Judge-made Law.

It is certain that no man could understand the full and true effect of either the fourth or the seventeenth section of the Statute of Frauds (which now is the fourth section of the Sale of Goods Act, 1893), without studying the vast number of cases interpreting these enactments. See Law Quarterly Review (i. p. 1) for an expression in words by Sir J. F. Stephen and Sir F. Pollock of the full import of the Statute of Frauds, s. 17.

Dicey, Conflict of Laws, p. 1.

Till quite recently judges not only were, as they still are, irremovable by any Ministry, however powerful, but had also little to hope for from the Government by way of promotion. The system created by the Judicature Acts has, with its many merits, the unintended defect that it makes the promotion of a judge, e.g. to a seat in the Court of Appeal, dependent on the goodwill of the Chancellor or the Prime Minister.

My learned friend Mr. Westlake’s Private International Law was published in 1858. It introduced English lawyers to the theories of Savigny on the conflict of laws, and showed the applicability of Savigny’s doctrines to questions which came before the English Courts. The influence of Mr. Westlake’s work is traceable in whole lines of cases decided during the last forty-six years.

“It is a maxim,” says Gulliver, “among [our] lawyers, that whatever has been done before may legally be done again, and therefore they take special care to record all the decisions formerly made against common justice and the general reason of mankind. These, under the name of precedents, they produced as authorities to justify the most iniquitous opinions, and the judges never fail of directing accordingly.”—Swift, Works, xi., edited by Sir Walter Scott (2nd ed.), p. 318.

See R. v. Millis (1844), 10 Cl. & F. 534; Beamish v. Beamish (1861), 9 H.L.C. 274.

Per Parke, J., Mirehouse v. Rennell (1833), 1 Cl. & F., pp. 527, 546; 36 R.R. p. 180, cited Pollock, First Book of Jurisprudence (2nd ed.), p. 339.

Namely by 12 Geo. III. c. 71. “Notwithstanding the broad terms and the obvious intent of the repealing Act of 12 Geo. III., the Courts, under the lead of Lord Kenyon, continued to hold that regrating, forestalling, and engrossing, were offences at the common law” (Eddy, On Combinations, i. s. 54), and maintained that doctrine until it was definitely abolished by Parliament in 1844, 7 & 8 Vict. c. 24; Eddy, s. 58.

See p. 33, ante.

If one may be allowed to apply the terms of logic to law, one is tempted to assert that judicial legislation proceeds by a process of induction, whilst parliamentary legislation proceeds, or may proceed, by a process of deduction. This contrast contains an element of truth. Courts when deciding particular cases arrive gradually and half unconsciously at some general principle applicable to all cases of a given class; a general principle is the terminus ad quem, though it is theoretically treated as the terminus a quo, of judicial legislation; Parliament, on the other hand, certainly may lay down a general principle, and may embody in an Act the consequences flowing from it; but the suggested contrast, unless its limits be very carefully kept in mind, is apt to be delusive. The Courts no doubt do not begin by laying down a general principle, but then a great deal of their best work consists in drawing out the conclusions deducible from well-established principles, and has therefore a deductive character. Parliament, on the other hand, may legislate by establishing a broad and general principle and enacting the consequences which flow from it, and thus may pursue a strictly deductive method; but this course is one rarely taken by Parliament (see pp. 41-47, ante). It begins a course of legislation generally by some Act meant to meet a particular want or grievance. Far more important in matter of method is the similarity than the contrast between judicial and parliamentary legislation in England. In the vast majority of instances they each start with the effort to meet some narrow or particular want or grievance. They each of them arrive only slowly and with great effort at some general principle; they are each much governed by precedent; they each, therefore, may in a sense be said to employ the inductive method. But here the advantage lies wholly with the Courts. The Courts of necessity deal with particular cases, but, as one case after another of a similar kind comes before them, they certainly attempt to elicit and determine the general principle on which the decision of all such cases should depend. They attempt to reach logically, and generally succeed in reaching, some general and reasonable rule of decision. Parliament in most instances pays little regard to any general principle whatever, but attempts to meet in the easiest and most off-hand manner some particular grievance or want. Parliament is guided not by considerations of logic, but by the pressure which powerful bodies can bring to bear upon its action. Ordinary parliamentary legislation then can at best be called only tentative. Even ordinary judicial legislation is logical, the best judicial legislation is scientific.

Comm. i. p. 441.

Affected occasionally by an old statute, such as the Wills Act, 1542 (34 & 35 Hen. VIII. c. 5), s. 14.

Outline of effect of marriage at common law as assignment of wife’s (W’s) property to husband (H).

(A) W’s personal property.

I. Goods, e.g. money and furniture in actual possession of W became the absolute property of H.

II. W’s choses in action (e.g. debts due to W) became H’s if he recovered them by law, or reduced them into possession during coverture, but not otherwise.

III. W’s chattels real (leaseholds) did not become H’s property, but he might, during coverture, dispose of them (give them away or sell them) at his pleasure, and, if he sold them, the proceeds of the sale were his property.

On the death of W before H all her personal property, if it had not already absolutely become his, passed to H.

On the death of H before W, her choses in action if not reduced into possession, and her leaseholds, if not disposed of by H, remained W’s.

(B) W’s freehold estate.

Any freehold estate of which W was seised vested in W and H during coverture, but was during coverture under his sole management and control.

On the death of W before H her freehold estate went at once to her heir, unless H was entitled, through the birth of a child of the marriage, to an interest therein for life by the curtesy of England.

On the death of H before W, W’s freehold estate remained her own.

N.B.—(1) These rules apply to property coming to W during coverture as well as to property possessed by her at the time of marriage.

(2) H was entitled during coverture to the whole of W’s income from whatever source it came, e.g. if it were rent from her leasehold or freehold property, or if it were her own earnings. The income, when paid to her or to H, was his, whilst still unpaid it was a chose in action which he might reduce into possession. See Blackstone, Comm. ii. 433-435; Stephen, Comm. ii. (14th ed.), 308-314.

Blackstone, Comm. i. p. 445.

See Christian’s edition of Blackstone’s Commentaries, i. p. 445, note 23.

Stephen, Comm. ii. 319-321; Ashburner, Principles of Equity, 231-244; Lush, Law of Husband and Wife, ch. v.

It will be convenient in the rest of this Lecture to treat the separate property of a married woman, whenever the contrary is not stated, as coming to her under a marriage settlement, but of course it might come to her in other ways. It might be bestowed upon her as a gift or left to her by will for her separate use.

So completely was a wife’s separate property her own that even after it was paid over to her, say, by a trustee under her marriage settlement, it was still in equity, during her life, her property, and not that of her husband. See Herbert v. Herbert (1692), 1 Eq. Ca. Ab. 661; Bird v. Pegrum (1853), 13 C.B. 639; Duncan v. Cashin (1875), L.R. 10 C.P. 554; Butler v. Cumpston (1868), L.R. 7 Eq. 16, 24.

“When the Courts of equity established the doctrine of the separate use of a married woman, and applied it to both real and personal estate, it became necessary to give the married woman, with respect to such separate property, an independent personal status, and to make her in equity a feme sole. It is of the essence of the separate use, that the married woman shall be independent of, and free from the control and interference of her husband. With respect to separate property, the feme covert is, by the form of trust, released and freed from the fetters and disability of coverture, and invested with the rights and powers of a person who is sui juris. To every estate and interest held by a person who is sui juris, the common law attaches a right of alienation, and accordingly the right of a feme covert to dispose of her separate estate was recognised and admitted from the beginning, until Lord Thurlow devised the clause against anticipation (Parkes v. White, 11 Ves. 209, 221). But it would be contrary to the whole principle of the doctrine of separate use, to require the consent or concurrence of the husband in the act or instrument by which the wife’s separate estate is dealt with or disposed of. That would be to make her subject to his control and interference. The whole matter lies between a married woman and her trustees; and the true theory of her alienation is, that any instrument, be it deed or writing, when signed by her, operates as a direction to the trustees to convey or hold the estate according to the new trust which is created by such direction. This is sufficient to convey the feme covert’s equitable interest. When the trust thus created is clothed by the trustees with the legal estate, the alienation is complete both at law and in equity.”—Taylor v. Meads (1865), 34 L.J. Ch. 203, 207, per Westbury, L.C.

Taylor v. Meads (1865), 34 L.J. Ch. 203.

Willock v. Noble (1875), L.R., 7 H.L. 580.

The contract of a married woman is said, even in Acts of Parliament, to “bind” her separate estate, but it did not in equity, nor does it now under the Married Women’s Property Acts, bind her separate property in the sense of being a charge on such property. As far as the separate property of a married woman was, or is bound for the payment, e.g. of her debts, it was or is liable to satisfy them in the sense in which the whole property of a man is liable to satisfy his debts.

Pike v. Fitzgibbon (1881), 17 Ch.D. (C.A.) 454.

Palliser v. Gurney (1887), 19 Q.B.D. 519. Both these results seem to follow logically from the view that when a woman’s engagement bound her separate estate, she did nothing more than agree to direct her trustee to pay what was due under the contract out of her separate estate.

In neither case, of course, will the property be chargeable at common law, since W at common law would be, as a married woman, incapable of binding herself by a contract. See In re Shakespear (1885), 30 Ch.D. 169.

This might conceivably have been achieved if the Court of Chancery could have established the principle that on any marriage taking place there was presumably a contract between the intended husband and wife,—that the wife’s present and future property should be her separate property, held for her separate use by her husband as trustee.

This state of things recalls the injustice which up to 1857 marked the law of divorce. The rights of the rich and of the poor were theoretically equal, but in practice divorce was obtainable by a rich man or rich woman when it was not obtainable by any poor man or poor woman. See p. 347, ante.

“If any . . . order of protection be made, the wife shall, during the continuance thereof, be and be deemed to have been, during such desertion of her, in the like position in all respects, with regard to property and contracts, and suing and being sued, as she would be under this Act if she obtained a decree of judicial separation.”—Matrimonial Causes Act, 1857 (20 & 21 Vict. c. 85), s. 21.

“In every case of a judicial separation the wife shall, whilst so separated, be considered as a feme sole for the purposes of contract, and wrongs and injuries, and suing and being sued in any civil proceeding.”—Ibid. s. 26.

Compare the Indian Succession Act, s. 4. “No person shall, by marriage, acquire any interest in the property of the person whom he or she marries, nor become incapable of doing any act in respect of his or her own property, which he or she could have done if unmarried.”—See Ilbert, Legislative Methods, p. 152.

It would have been possible to place husband and wife, as under French law, in something like the position of partners as regards each other’s property. An innovation, however, of this kind would have been radically opposed to English habits. It has not, as far as my knowledge goes, been advocated either in or out of Parliament.

But of a settlement which did not contain a restraint on anticipation. See p. 378, ante.

“It was this equitable principle of the wife’s separate estate which formed the model of the legal separate estate created by the Married Women’s Property Acts, 1870 and 1882.”—Stephen, Comm. ii. (14th ed.), p. 319.

33 & 34 Vict. c. 93, s. 1.

33 & 34 Vict. c. 93, s. 7.

In re Voss (1880), 13 Ch.D. 504.

37 & 38 Vict. c. 50.

45 & 46 Vict. c. 75.

See generally 45 & 46 Vict. c. 75, s. 1, and note sub-ss. (3), (4).

Ibid. s. 19.

She does not incur a personal liability. Hence there is no power under the Debtors Act, 1869, to commit a married woman for default in paying a sum of money for which judgment has been recovered against her under the Married Women’s Property Act, 1882.—Draycott v. Harrison (1886), 17 Q.B.D. 147.

Palliser v. Gurney (1887), 19 Q.B.D. 519. Nor indeed was any property which might afterwards come to her as a widow, and was therefore not “separate property” at all.

Barnett v. Howard [1900], 2 Q.B. (C.A.) 784.

Compare Willock v. Noble (1875), L.R. 7 H.L. 580; In re Price (1885), 28 Ch.D. 709; In re Cuno (1889), 43 Ch.D. (C.A.), 12; and Lush, Law of Husband and Wife (2nd ed.), pp. 138-140.

56 & 57 Vict. c. 63.

The Married Women’s Property Acts, 1882-1893 (the Acts of 1870 and 1874 are repealed), are so drawn as still to leave some important points unsettled. What, for example, is the effect of the proviso contained in the Married Women’s Property Act, 1893, s. 1? Does it exempt the separate property of a married woman subject to restraint on anticipation, from liability to satisfy a contract made by her during coverture, even though such restraint has by the death of her husband ceased to operate? The Court of Appeal has answered this inquiry in the affirmative—Barnett v. Howard [1900], 2 Q.B. (C.A.), 784; Brown v. Dimbleby [1904], 1 K.B. (C.A.), 28; Birmingham Excelsior Society v. Lane [1904], 1 K.B. (C.A.), 35; Lush, Husband and Wife (2nd ed.), pp. 314, 315. But some lawyers of eminence find the decisions of the Court of Appeal difficult to reconcile with Hood Barrs v. Heriot [1896], A. C., 174; Whiteley v. Edwards [1896], 2 Q.B. (C.A.), 48. See Pollock, Principles of Contract (8th ed.), pp. 90-95.

Code Civil, art. 1421.

Bell, Principles of the Law of Scotland (10th ed.), s. 1560 D. But a wife can dispose of accrued income of her estate.

Pollock and Maitland, History of English Law, i. p. 203.

See pp. 95-102, 191-201, 267-273, ante.

See pp. 280-284, ante.

See pp. 321-323, ante.

“The Evangelical movement,” writes Dr. Dale, “had its characteristic ἤθος or spirit, as well as its characteristic creed; and this ἤθος or spirit it is not hard to discover. Its supreme care in the days of its strength was not for any ideal of ecclesiastical polity; it contributed to the extinction among Congregationalists, and, I think, among Baptists and Presbyterians, of that solicitude for an ideal Church organisation which had so large a place in the original revolt of the Nonconformists against the Elizabethan settlement of the English Church. Nor were the Evangelical clergy zealous supporters of Episcopacy; their imagination was not touched by that great—though, as we believe false—conception of the Church which fired the passion of the leaders of the Tractarian Revival—a Church whose living ministers can claim to inherit, by unbroken succession, awful powers and prerogatives attributed to the original apostles. The Evangelical movement encouraged what is called an undenominational temper. It emphasised the vital importance of the Evangelical creed, but it regarded almost with indifference all forms of Church polity that were not in apparent and irreconcilable antagonism to that creed. It demanded as the basis of fellowship a common religious life and common religious beliefs, but was satisfied with fellowship of an accidental and precarious kind. It cared nothing for the idea of the Church as the august society of saints. It was the ally of individualism.”—R. W. Dale, The Old Evangelicalism and the New, pp. 16, 17.

Note the account of Thomas Scott’s theology given about the middle of the nineteenth century by a sympathetic critic. It is clear that while Scott’s autobiography, published under the title of The Force of Truth, will retain a permanent place in religious literature as a record of personal experience, his mode of reasoning must be utterly unconvincing to a thinker of to-day. It is as much out of date as the argument of James Mill’s Government. It could not now be written by a man of anything like Scott’s intellectual power. See Sir J. Stephen, Ecclesiastical Biography, ii. p. 121, and following.

When Wesley refused, though earnestly requested by his father, to leave Oxford, he wrote: “ ‘The question is not whether I could do more good to others there, than here; but whether I could do more good to myself, seeing wherever I can be most holy myself, there I can most promote holiness in others’ ” (cited Lecky, History of England, ii. p. 554, from Tyerman’s Wesley, i. p. 96). “ ‘My chief motive,’ he wrote, when starting for Georgia, ‘is the hope of saving my own soul. I hope to learn the true sense of the Gospel of Christ by preaching it to the heathen’ ” (cited Lecky, History of England, ii. p. 554, from Tyerman’s Wesley, i. p. 115).

The first edition of this book was printed in the year 1780, and first published in 1789.

Stephen, Essays in Ecclesiastical Biography, ii. p. 282.

Ibid. p. 283. As to the relation between Wilberforce and Bentham see article by Burton, Westminster Review, xxxvii. (1842).

Robert Hall, the most eloquent preacher of his day, was deeply respected and greatly admired by Evangelicals. He condemned the absence of religion in the writings of Miss Edgeworth, and had no sympathy with the theological scepticism of Bentham, but he nevertheless avowed his intense admiration for Bentham as a legislative reformer.

J. S. Mill, Dissertations and Discussions, i. p. 388.

“This is one of the peculiarities of the English mind; the Puritan and the Benthamite have an immense part of their nature in common; and thus the Christianity of the Puritan is coarse and fanatical;—he cannot relish what there is in it of beautiful, or delicate, or ideal.”—Arnold, Life, ii. p. 53.

Mill, Autobiography, p. 111.

See Venn Family Annals, p. 74.

They both appealed to the strength, though also to the weaknesses, of the middle class. This explains how it happened that they each reached the height of their power at the time when, under the reformed Parliament of 1832, the middle classes guided the public life of England.

Hurrell Froude excited the sympathetic admiration of the early Tractarians; his Remains were published in 1837, under the editorship of James Mozley, and with a preface by Newman; they were not afraid to publish without censure the following report of his feelings:—“I have felt it a kind of duty to maintain in my mind an habitual hostility to the niggers, and to chuckle over the failures of the new system, as if these poor wretches concentrated in themselves all the Whiggery, dissent, cant, and abomination that have been ranged on their side.” . . . “I am ashamed I cannot get over my prejudices against the niggers.” . . . “Every one I meet seems to me like an incarnation of the whole Anti-Slavery Society, and Fowell Buxton at their head.”—Sir J. Stephen, Essays in Ecclesiastical Biography, ii. pp. 188, 189.

Life and Letters of B. Foss Westcott, ii. p. 115.

See Dict. National Biography, xxxvi. pp. 66, 67. “On occasion of the strike of the London dock labourers in August 1889 [Manning] warmly espoused their cause, and materially contributed to bring about an adjustment of the dispute.”—Ibid.

For the inclination of the Church party in France to favour a certain kind of socialism, see Pic, Traité Élémentaire de Législation Industrielle, ss. 354, 355.

See p. 177, ante.

Compare for the tone of English public life from 1830-1850, Martineau’s History of the Thirty Years’ Peace, and Walpole’s History of England, published 1878-1886, which embodies the sentiment of the era of reform, though the book is written rather from the Whig than from the Radical point of view.

A sagacious collectivist may, indeed, look to some system of taxation as the best means for achieving that gradual transfer to the community of the wealth of individuals which, though it involves an immense inroad on personal freedom, might realise the ideals of socialism.

No politician was a more typical representative of his time than Joseph Hume. He was a utilitarian of a narrow type; he devoted the whole of his energy to the keeping down or paring down of public expenditure. Even at the period of his greatest influence (1820-1850) his passion for economy met with as much derision as admiration. Still in his day, though he was never a popular hero, he commanded some real and more nominal support. He has left no successor; no member of Parliament has taken up Hume’s work. Could a politician who avowedly wished to follow in Hume’s steps now obtain a seat in the House of Commons?

Jurisprudence was also in the minds of Benthamites most intimately connected with the doctrine of utility. This fact explains a peculiarity which often perplexes readers of Austin’s Jurisprudence. The whole line of his general argument is illogically broken by an interesting but long and irrelevant disquisition on the principle of utility. See Austin, Jurisprudence, Lects. III. and IV.

In this edition the greater part of his lectures appeared not for the second but for the first time.

See Maine, Early History of Institutions, Lect. xii. p. 342. It is difficult, for example, to say whether Maine does or does not accept Austin’s analysis of sovereignty as sound, if it be taken as an account of the fully developed idea of sovereignty, as it exists in a modern civilised state such as England; but it is quite clear that he attaches an importance to the historical growth of conceptions, such as sovereignty or law, which was unknown to Austin, and to the school of Bentham.

Martineau, Dictionary of National Biography, vol. xxxvi. pp. 310, 311, article by Leslie Stephen.

Martineau, Thirty Years’ Peace, iv. (ed. 1878), p. 454. This is part of a passage which should be read as a whole.

See Comte, Cours de Philosophie Positive, iv. Leçon 47, and pp. 263-286.

Maine, Popular Government, p. 153.

Dickens, Hard Times, p. 1.

Ruskin, Unto This Last (2nd ed. 1877), pp. 14, 15 (n.), published 1860.

In 1857 Dickens satirised in Little Dorrit the inefficiency of Government offices, i.e. attacked the action of the State as compared with that of individuals, and rendered his satire memorable by the invention of the term “circumlocution office.”

Critics who perceive that this was the one object of James Mill’s educational efforts will regard with comprehension, if not with sympathy, his harsh and also absurd indignation when John, as a mere child, stated that something might be true in theory but not in fact. The least blunder in the boy’s logic threatened James Mill’s design with total failure.

Autobiography, p. 161.

Wallas, Life of Francis Place, p. 91.

Autobiography, pp. 114-116.

See p. 433, post.

Dissertations, i. p. 331. Both articles were published after the death of James Mill.

Sir J. F. Stephen’s Liberty, Equality, and Fraternity is a strenuous assault on the fundamental ideas of the treatise, On Liberty, but this forcible attack is little more than a vehement criticism of Mill from the point of view of the older utilitarians, and certainly shows that Mill had diverged considerably from Bentham. See Leslie Stephen, English Utilitarians, iii. p. 244.

Life of Kingsley, ii. p. 88.

Examination, p. 129.

English Utilitarians, iii. p. 430.

John Mill, Dict. of Nat. Biog. xxxvii. p. 398.

English Utilitarians, iii. p. 230. “Sir Louis Mallet reports a conversation with him only a few days before his death, in which Cobden said with peculiar earnestness: ‘I believe that the harm which Mill has done to the world by the passage in his book on Political Economy in which he favours the principle of Protection in young communities has outweighed all the good which may have been caused by his other writings.’ ” “Quoted in a letter of Sir Louis Mallet, given in the Appendix to Mr. Gowing’s admirable Life of Richard Cobden (Cassell & Co.).” See Armitage Smith, The Free Trade Movement and its Results (1898 ed.), p. 153.

Cobden’s remark is a recognition of Mill’s tendency to qualify by concessions (of which he hardly perceived the full effect) the rigidity of the economic doctrine professed by his early teachers.

Sidgwick, Miscellaneous Essays and Addresses, pp. 241, 242. Compare particularly L. Stephen, English Utilitarians, iii. pp. 224-237.

Utilitarianism, p. 23.

For Mill’s influence see Henry Sidgwick, A Memoir, p. 36.

As late as 1830 Milman’s History of the Jews shocked English opinion. “In this unpretending book for the first time ‘an English clergyman treated the Jews as an oriental tribe, recognised sheiks and emirs in the Old Testament, shifted and classified documentary evidence, and evaded or minimised the miraculous.’ Consternation, which the author had not anticipated, spread among the orthodox; the sale of the book was not only stopped, but the publication of the series in which it appeared ceased.”—Milman, Dict. Nat. Biog. xxxviii. p. 3, by R. Garnett.

Whether the publication of an attack on Christianity made in a serious spirit and in decent language might not still theoretically expose a man to prosecution, is uncertain. See Stephen, Digest Crim, Law, 5th ed. Art. 179, p. 125; and compare Odgers, Libel and Slander, pp. 475, 490. It is certain, however, that in practice such an attack on Christianity would now not expose any man to punishment.

See Stephen, Comm. iii. ch. xvi. (14th ed.), pp. 229-234; the Newspaper Libel and Registration Act, 1881, the Law of Libel Amendment Act, 1888.

This need excite no surprise. Free discussion does in the end favour the establishment of indisputable truths, but its immediate effects are first to direct attention towards the weak points of any existing body of beliefs, and next to reveal an unexpected amount of dissent from received formulas. Now, as an ordinary man’s faith in any moral or intellectual doctrine depends in part on its coherence, in part on the authority of experts, and greatly also on the sympathy of others with his faith, anything which shows that a creed is not entirely consistent, that even experts are not agreed as to its truth, or that many persons dissent from it, inevitably shakes the faith of ordinary believers. See on this subject Tarde, Les Lois de l’Imitation.

Any one whose memory of past phases of opinion stretches back over sixty years will acknowledge that at a time to be remembered by men still living, Roman Catholicism seemed to ordinary Englishmen to be, as far as England was concerned, a thing of the past. It was to them, like Jacobitism, a dead faith. One may find a record of this state of feeling in Father Clement, a not unimpressive religious tale, which, published in 1823, had by 1860 reached thirteen editions. Its aim was to show, from an Evangelical point of view, that a Roman Catholic priest might, in spite of all his superstitions, be a man of deep personal piety.

See Walpole, Hist. ii. p. 12.

Compare the language of James Martineau, in a letter to a friend, September 9, 1830. “ ‘France! glorious France! Has there ever been a week since the Resurrection which has promised such accumulated blessings to our race, as that week of national regeneration? Where will it end? The invigorating shock must pass through the Netherlands, Spain, Italy. When that revolution is compared with any period of history, in what an encouraging light does it exhibit modern character and mind. The whole struggle has been conducted in a spirit of disinterestedness which to me is impressive in the highest degree. Such a people must be almost within sight of the value of religious truth.’ ”—Cited James Martineau, by J. Estlin Carpenter, p. 67 (n.).

Morley, Life of Cobden, i. pp. 130, 131.

See especially Mill, Autobiography, pp. 246, 247. Compare Austin’s attack on Dr. Friedrich List’s Das nationale System der politischen Oekonomie, in Edinburgh Review, lxxv. (July 1842), p. 515. This examination by Austin of our author’s pretended system is well worth notice. The attack on protection is powerful, but the tone is obviously different from that which a writer of half Austin’s ability would, in 1905, adopt in the criticism of the views held by an eminent opponent. The dogmatic tone is the more remarkable since Austin was by no means a narrow Benthamite, and, as we have seen, professed great disrespect for what he called the “universal principles of human nature of the political economists.” (See p. 164, ante.)

“The political economists, in many instances at least, wrote as if an attempt to alter the rate of wages by combinations of workmen was like an attempt to alter the weight of the air by tampering with barometers. It was said that the price of labour depended, like the price of other commodities, solely upon supply and demand, and that it could not be altered artificially” (Stephen, History, iii. p. 211). Compare for the tone of economists, the preface to Miss Martineau’s Political and Economical Tales.

See Mill, Political Economy, Bk. v. ch. xi.

Jevons, The State in Relation to Labour, 3rd ed. (1894), by M. Cababé, pp. 16-17. See also Intro. pp. vii, viii, xiii, xiv.

Contrast this with the language of Austin, Edinburgh Review, lxxv. “There is always . . . a general presumption against the expediency of such an interference,” i.e. an interference of a Government with the concerns of its subject (p. 527). “We are not bound to prove, in an affirmative or direct manner, the expediency of freedom of trade, since there is a general presumption against the interference of governments with the interests and concerns of their subjects” (p. 528, and see his general argument in favour of universal freedom of trade, ibid. p. 529).

Note the language of an Ulster working man who on July 7, 1903, writes to the Times, stating, and probably with truth, that the workmen of America are better off than the workmen of England, and then proceeds:—“Now there is something wrong here. You will, no doubt, agree that it should be the object of every statesman and of every Government to promote the welfare of the people, and to improve their conditions. How is it, then, that the British Government has not succeeded in placing us working men in anything like the splendid position that the American Government has placed its working men? Britishers should, I submit, be second to none. Our workmen are, without doubt, the finest and most intelligent men in the world; they should therefore receive the highest wages, and no Government, in my opinion, ought to experience any difficulty in securing the highest remuneration for such men; yet the British Government has been unable to do it, and I for one would like to know the reason why.”

The singular assumptions on which this argument rests are made by many persons, but are rarely put forward with as much openness as by the Ulster workman.

See Mill, Autobiography, p. 161, and compare Mill, Three Essays on Religion, pp. 44, 45.

The word “imperialism” has, it has been well remarked by my friend Mr. Bryce, undergone a change of signification. In 1865 imperialism meant Cæsarism (i.e. an autocracy like Louis Napoleon’s), as opposed to constitutional government, and was always used with an unfavourable connotation. In 1905 imperialism means the wish to maintain the unity and increase the strength of an empire which contains within its limits various more or less independent States. The expression is as applicable to the inhabitants of the United States as to the subjects of the British Crown. It is used sometimes with a favourable, sometimes with an unfavourable connotation.

Brougham, Historical Sketches, Lord St. Vincent, p. 307.

Memoirs of an Ex-Minister (ed. 1885), p. 260.

The Political Writings of Richard Cobden, 1886, pp. 24, 25 (1835).

Ibid. p. 2, Letter of 1836.

Ibid. pp. 242, 243.

In nothing is this change more visible than in the difference between the tone of Lewis’s Government of Dependencies, published in 1841, and the tone of the Introduction to the same work, in the excellent edition published by my friend, Mr. C. P. Lucas, in 1891. Among the possible advantages of possessing dependencies, Lewis mentions the “glory which a country is supposed to derive from an extensive colonial empire,” but he dismisses this point at once in a few contemptuous sentences. His editor can hardly understand this contempt, and finds the answer thereto in the assertion that the use of a colony to England cannot be measured by its present or marketable value. The contrast is the more instructive because both the writer and the editor of the Government of Dependencies must be held men of cool judgment and of sound sense, and write with the advantage of practical acquaintance with our colonial administration. A sane imperialist joins issue with a sane Benthamite;—the difference in their point of view marks the opposition between the ideas of 1841 and the ideas of 1905.

This expression has at least three meanings, or aspects, all of which are combined in the minds of its devotees:

(1) The habit or practice of examining the growth or history of laws, institutions, customs, or opinions.

(2) The desire and attempt to make discoveries in the history of mankind analogous to the discoveries made by means of investigation and experiment in the sphere of natural science.

Historical and scientific investigations may run easily into one another: an examination into the early history of civilisation, on the one hand, may throw light upon the Darwinian theory, and, on the other hand, Darwin’s speculations may be looked upon as inquiries into the early history of all living beings, including man.

(3) The habit of looking upon men, not as separate individuals but as members or parts of the social organism.

Bentham, Works, x. p. 51. Note, however, Bentham’s appreciative comment on Montesquieu, ibid. p. 143.

It is more than doubtful whether the world would have gained any real advantage by Bentham having been inspired with enthusiasm for legal archæology. Time spent on the exploration of legal antiquities would have been so much time and energy deducted from study of the principles which should guide a reformer in the amendment of the law. What at the end of the eighteenth century England needed and found in Bentham was not a legal historian but, to use the expression of Brougham, a legal philosopher.

No discovery, for instance, as to the true character or constitution of the Witenagemót would have been of material aid to the writers of the Federalist in planning a constitution for the United States.

“One ought not to complain of the wickedness of man, but of the ignorance of legislators who have always set private interest in opposition to public.”

“The hidden source of a people’s vices is always in its legislation; it is there that we must search if we would discover and extirpate their roots.”

“Moralists ought to know that as the sculptor fashions the trunk of a tree into a god or a stool, so the legislator makes heroes, geniuses, virtuous men, as he wills: . . . reward, punishment, fame, disgrace, are four kinds of divinities with which he can always effect the public good.”

These are the words of Helvetius (1715-1771). See Sidgwick, Miscellaneous Essays, p. 152. They embody the creed of Bentham. The historical method has made such language and such a faith impossible to-day for any man of education or ability. But has it not also made all but impossible that passionate enthusiasm for the amendment of the law which inspired the efforts of every reformer who had come under the influence of Bentham?

“Ce qui est réellement abusif . . . c’est l’acceptation élastique prêtée par beaucoup de socialogues naturalistes au mot hérédité, qui leur sert à exprimer pêle-mêle avec la transmission des caractères vitaux par génération, la transmission d’idées de mœurs, de choses sociales, par tradition ancestrale, par éducation domestique, par imitation-coutume.”—Tarde, Les Lois de l’Imitation (2nd ed.), p. ix.

It is no mere accident that Maine, who in his Ancient Law undermined the authority of analytical jurisprudence, aimed in his Popular Government a blow at the foundations of Benthamite faith in democracy.

The abolition of negro slavery was not only justified but absolutely required by the principle of utility and by the conscience of mankind; for negro slavery was a disgrace to civilisation and an obstacle to progress. But could the Abolitionists either in England or in the United States have fought with success their desperate battle against oppression had they not been strengthened by an unswerving faith in the essential similarity and equality of all human beings whether blacks or whites?

Sympathy with national resistance to Napoleon in Spain and Germany was felt keenly by Tories and very slightly, if at all, by Whigs and Radicals.

Every creed, political no less than religious, if it is to be effective, must become a faith; but a faith is the alliance of thought with some strong and cognate feeling. Every form of political belief, therefore, seeks to connect itself with some appropriate emotion. This held good of Benthamite liberalism. It became a faith, but it could not naturally blend with the sentiments now known as imperialism or nationalism, though in 1830 they had hardly received definite names. Benthamism—just because the fundamental idea of utilitarian morality is that the proper aim of human action is the greatest happiness of the greatest number—had a real affinity, and in fact became closely allied with the sentiments of philanthropy and cosmopolitanism.

Pattison, Essays, ii. p. 264.

Use has been made, with permission, of Note M to Sir George Young’s pamphlet on University Tests.

As also of Durham.

See letter of H. Sidgwick, April 25, 1898, in A Memoir, pp. 564, 565.