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selves zealots for individual freedom, but they enter- Lecture tained beliefs which, though the men who held them knew it not, might well, under altered social conditions, foster the despotic authority of a democratic State. The effect actually produced by a system of thought does not depend on the intention of its originators; ideas which have once obtained general acceptance work out their own logical result under the control mainly of events. Somewhere between 1868 and 1900 three changes took place which brought into prominence the authoritative side of Benthamite liberalism. Faith in laissez faire suffered an eclipse; hence the principle of utility became an argument in favour, not of individual freedom, but of the absolutism of the State. Parliament under the progress of democracy became the representative, not of the middle classes, but of the whole body of householders; parliamentary sovereignty, therefore, came to mean, in the last resort, the unrestricted power of the wage-earners. English administrative mechanism was reformed and strengthened. The machinery was thus provided for the practical extension of the activity of the State; but, in accordance with the profound Spanish proverb, "the more there is of the more the less there is of the less," the greater the intervention of the Government the less becomes the freedom of each individual citizen. Benthamites, it was then seen, had forged the arms most needed by socialists. Thus English collectivists have inherited from their utilitarian predecessors a legislative doctrine, a legislative instrument, and a legislative tendency pre-eminently suited for the carrying out of socialistic experiments.

X.

LECTURE X

COUNTER-CURRENTS AND CROSS-CURRENTS OF

LEGISLATIVE OPINION

Lecture WE have hitherto traced the connection between the development of English law and different dominant currents of opinion. To complete our survey of the relation between law and opinion, we must now take into account the way in which the dominant legislative faith, and therefore the legislation, of a particular time may be counteracted or modified either by the existence of strong counter-currents or crosscurrents of opinion, or by the difference between parliamentary and judicial legislation.

2

Concerning counter-currents little need here be said. The topic has been amply illustrated in the foregoing pages. The story of Benthamite liberalism is specially instructive; the increasing force of liberalism was long held in check by the survival of old toryism; the authority of liberalism, when it

2 See pp. 36-41, ante.

1 See pp. 62-301, ante. 3 See Lecture XI., post. Logically the results of this difference are merely an illustration of the effect produced by a particular crosscurrent 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.

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had become the legislative faith of the day, was Lecture diminished by the gradually rising current of collectivism.

To the effect produced by cross-currents of opinion which, as already noted,' deflect the action of the reigning legislative faith from its natural course, little attention has been directed in these lectures, yet the topic deserves careful consideration. The influence of such cross-currents, operating as it does in an indirect and subtle manner, often escapes notice, and is always somewhat hard to appreciate. The easiest method whereby to render the whole matter intelligible is to trace out the way in which such a cross-current has told upon the growth of some particular part of the law. For this purpose no branch of the law of England better repays examination than the ecclesiastical legislation of the years which extend from the era of the Reform Act (1830-32) to the close of the nineteenth century; for this legislation is affected at every turn on the one hand by the liberalism of the time, which aims at the establishment of religious equality, i.e. at the abolition of all political or civil privileges or disabilities dependent upon religious belief, and on the other hand by the cross-current of clerical, or rather ecclesiastical, opinion, which desires to maintain the rights or privileges of the Established Church, and demands deference for the convictions or the sentiments of the clergy and of churchmen. To see that this is so, let us, in regard to matters which can be termed ecclesiastical, in a wide sense of that word, examine first the course-that is, both the current and

1 See pp. 40, 41, ante.

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Lecture the cross-current, of legislative opinion from 1830 to 1900, and next the legislation to which this course of opinion has in fact given rise.

A. The Course of Legislative Opinion

In 1832 the passing of the Reform Act seemed to prove that any institution, however venerable, might be called upon to show cause for its existence, and, in default of a popular verdict in its favour, would undergo drastic amendment or revolutionary destruction. In these circumstances no one among all the ancient institutions of the country was, to outward appearance, more open to attack, and less capable of defence, than the United Church of England and Ireland.'

The policy of the popular leaders, whether Whigs or Benthamites, was essentially secular and anticlerical. 2 The Whigs had always been the cool friends, if not the foes, of the clergy, and had found their most constant adherents among Dissenters. The doctrines of Bentham clearly pointed towards Disestablishment. In 1832 popular feeling identified zeal for the Church with opposition to reform, and

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

2 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 ecclesiastical 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.

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considered bishops and parsons the natural allies of Lecture boroughmongers and Tories. At the moment when the vast majority of the electors demanded parliamentary reform with passionate enthusiasm, no class was the object of more odium than the bench of Bishops. Proposals were once and again brought before Parliament to expel them from the House of Lords. Whatever, again, might be the other effects of the Reform Act, it assuredly gave new power to what was then termed the Dissenting interest; at the meeting of the first reformed Parliament it seemed for a moment possible that Dissenters might exercise political predominance,' and the rule of Nonconformists could mean nothing less than a revolution in the position of the Church. These things, it may be said, were merely the appearances of the moment, but any man of sense must have perceived that the Church Establishment, whilst open to the charges of sinecurism and the like, which might be brought against the civil administration of the time, exhibited two special weaknesses of its own which both provoked assault by and promised success to its assailants: the National Church was not the Church of the whole nation; the privileges of the Establishment were in many cases the patent grievances of the laity.

The National Church was not the Church of the whole nation.

Protestant Nonconformists whose ancestors had

1 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.