Slike strani
PDF
ePub

2

II.

since the passing of the Catholic Relief Act, 1829, Lecture more than one Act of Parliament has been needed in order to remove the remnants of the old penal laws. The broad principle that religious belief or disbelief ought not to deprive a man of political rights or privileges, has at last been in the main accepted by the English people, but it has needed a whole line of enactments during a period extending from 1721 to 1888' to give effect to this idea even as regards a man's right to sit in Parliament. The modern labour code is the fruit of more than forty enactments extending over the greater part of the nineteenth century. The mitigation of our criminal law has been carried out by a long series of separate Acts, each dealing with special offences. Even the gross brutality of the pillory was not got rid of at one blow. In 1816 it was reserved for a limited number of crimes (56 Geo. III. c. 138); in 1837 it was at last abolished (7 Will. IV. & 1 Vict. c. 23). If capital offences have been reduced from at least 160 to 2, this humanisation of our law is the consequence of a series of Acts dating from the beginning of the nineteenth century, and passed for the most part between 1827 and 1861. Here, as elsewhere, exceptions prove the rule. The early energy of the generation which, wearied with toryism, carried the Reform Act, effected for a short time legislation which to its authors seemed sweeping and thoroughgoing.

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

2 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.

II.

Lecture The Reform Act itself startled the Whigs by whom it was carried. The Municipal Reform Act, 1836, swept away at once a mass of antiquated abuses; above all, the Poor Law Amendment Act, 1834, did in reality introduce, and introduce at once, a fundamental revolution in the social condition of England. But even these laws fell far short of giving full effect to the principles which they more or less embodied; the Reform Act had no finality, and the Municipal Corporations Act, 1882, bears witness in its list of sixty-eight repealed enactments to the gradual procedure by which modern municipal government has received its development.2

The slowness with which legislative opinion acts is not quite the same thing as its continuity, though the bit by bit or gradual system of law-making dear to Parliament, does in truth afford strong evidence that the course of opinion in England has certainly during the nineteenth century, and probably ever since parliamentary government became to any degree a reality, been continuous, i.e. has been rarely marked by sudden breaks. In any case it is certain that during the nineteenth century the legislative opinion of the nation has never veered round with sudden violence.

3

To this general statement an objection may possibly be taken, based on the history of the great Reform

1 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.

3 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.

II.

Act. In 1832, it may be said, passionate enthusiasm Lecture for parliamentary reform and all the innovations to which it gave birth, displaced, as it were, in a moment the obstinate toryism which for nearly half a century had been the accepted creed, if not of the whole nation, yet assuredly of the governing classes; here we have a revolution in popular opinion of which the violence was equalled by the suddenness.

The objection is worth consideration, but can easily be met.

The true answer is, that there exists an important distinction between a change of public opinion and an alteration in the course of legislation. The one has in modern England never been rapid; the other has sometimes, though rarely, been sudden; the history of the Reform Act admirably illustrates this difference. The spirit of Benthamite liberalism,1 which in 1832 put an end to the reign of toryism, had developed slowly and gradually during a period of more than thirty years. We have here no sudden conversion of the people of England from one political faith to another; the really noteworthy fact is the length of time needed in order to convince English men that their ancient institutions stood in need of alteration. Even when this conviction had been adopted by the mass of the middle classes, public opinion, owing to the constitution of the unreformed Parliament, could not be immediately transformed into legislative opinion. The very need for the reform of Parliament of itself prolonged for some years the period of legislative inactivity. At last the dominant opinion of the country, strengthened

1 See Lect. VI. post.

II.

Lecture no doubt by external circumstances, such as the French Revolution of 1830, became the legislative opinion of the day. Liberalism of the Benthamite type was the political faith of the time. Its triumph was signalised by the Reform Act. Then, indeed, there did take place a startling change in legislation, but the suddenness of this change was due to the fact that a slowly developed revolution in public opinion had been held in check for years, and had, even when it became general, not been allowed to produce its proper effect on legislation; hence such an accumulation of abuses as made their rapid removal desirable, and in some cases possible. For, after all, the rapidity and the suddenness of the change in the course of legislation may easily be exaggerated. A critic who traces the history of special reforms which followed the Reform Act, is far more often struck by the slowness and the incompleteness, than by the rapidity of their execution. In any case the history of the Reform Act in reality supports the doctrine, that the development of legislative opinion has been throughout the nineteenth century slow and continuous.

This continuity is closely connected with some subordinate characteristics of English legislative opinion.

The opinion which changes the law is in one sense the opinion of the time when the law is actually altered; in another sense it has often been in England the opinion prevalent some twenty or thirty years before that time; it has been as often as not in reality the opinion not of to-day but of yesterday.

Legislative opinion must be the opinion of the day, because, when laws are altered, the alteration is

II.

of necessity carried into effect by legislators who act Lecture under the belief that the change is an amendment; but this law-making opinion is also the opinion of yesterday, because the beliefs which have at last gained such hold on the legislature as to produce an alteration in the law have generally been created by thinkers or writers, who exerted their influence long before the change in the law took place. Thus it may well happen that an innovation is carried through at a time when the teachers who supplied the arguments in its favour are in their graves, or even—and this is well worth noting-when in the world of speculation a movement has already set in against ideas which are exerting their full effect in the world of action and of legislation. Bentham's Defence of Usury supplied every argument which is available against laws which check freedom of trade in money-lending. It was published in 1816; he died in 1832. The usury laws were wholly repealed in 1854, that is thirty-eight years after Bentham had demonstrated their futility; but in 1854 the opponents of Benthamism were slowly gaining the ear of the public, and the Money-lenders' Act, 1900, has shown that the almost irrebuttable presumption against the usury laws which was created by the reasoning of Bentham has lost its hold over men who have never taken the pains or shown the ability to confute Bentham's arguments. Nor is there anything mysterious about the way in which the thought or sentiment of yesterday governs the legislation or the politics of to-day. Law-making in England is the work of men well advanced in life; the politicians who guide the House of Commons, to say nothing of the peers who lead the House of Lords,

« PrejšnjaNaprej »