IV.

1897 to 1900, which (to put the matter broadly) Lecture makes an employer the insurer of his workmen against any damage incurred in the course of their employ

ment.

The difference in the spirit of the three great currents of opinion may be thus summarised: Blackstonian toryism was the historical reminiscence of paternal government; Benthamism is a doctrine of law reform; collectivism is a hope of social regeneration. Vague and inaccurate as this sort of summary must necessarily be, it explains how it happened that individualism under the guidance of Bentham affected, as did no other body of opinion, the development of English law.

LECTURE V

V.

THE PERIOD OF OLD TORYISM OR LEGISLATIVE

QUIESCENCE (1800-1830)

Lecture FOUR points merit special attention :-the state of opinion during the era of legislative quiescence—the resulting absence of legal changes during the first quarter of the nineteenth century-the inquiry, why some considerable innovations took place even during this period and the causes which brought the era of legislative quiescence to its close.

(A) State of Opinion (1760-1830)

These seventy years constitute a period of legislative quiescence; the changelessness of the law is directly traceable to the condition of opinion.1

The thirty years from 1760 to 1790 may be well termed as regards their spirit, the age of Blackstone.2 English society was divided by violent though superficial political conflicts, but the tone of the whole time, in spite of the blow dealt to English prestige by the

1 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.

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

V.

successful revolt of the Thirteen Colonies, was after all Lecture a feeling of contentment with, and patriotic pride in, the greatness of England and the political and social results of the Revolution Settlement. Of this sentiment Blackstone was the typical representative; every page of his Commentaries is pervaded by aggressive optimism.

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"Of a constitution, so wisely contrived, so strongly raised, and so highly finished, it is hard to speak "with that praise, which is justly and severely its "due-the thorough and attentive contemplation of "it will furnish its best panegyric. It hath been the "endeavour of these commentaries, however the execution may have succeeded, to examine its solid foundations, to mark out its extensive plan, to explain the use and distribution of its parts, and from the harmonious concurrence of those several parts, to demonstrate the elegant proportion of the "whole. We have taken occasion to admire at every "turn the noble monuments of ancient simplicity, "and the more curious refinements of modern art. "Nor have its faults been concealed from view; for “faults it has, lest we should be tempted to think it "of more than human structure; defects, chiefly

arising from the decays of time, or the rage of "unskilful improvements in later ages. To sustain, "to repair, to beautify this noble pile, is a charge "intrusted principally to the nobility, and such gentlemen of the kingdom as are delegated by their country to parliament. The protection of THE "LIBERTY OF BRITAIN is a duty which they owe to themselves, who enjoy it; to their ancestors, who "transmitted it down; and to their posterity, who

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Lecture "will claim at their hands this, the best birthright,

V.

' and the noblest inheritance of mankind."1

These words sum up the whole spirit of the Commentaries; they express the sentiment not of an individual, but of an era. Some twenty-five years or so later Burke noted, with undisguised sympathy, the conservatism of English thinkers.

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"Many of our men of speculation," he writes, "instead of exploding general prejudices, employ their 'sagacity to discover the latent wisdom which pre“vails in them. If they find what they seek, and they seldom fail, they think it more wise to continue "the prejudice, with the reason involved, than to cast away the coat of prejudice, and to leave nothing but "the naked reason; because prejudice, with its reason, "has a motive to give action to that reason, and an "affection which will give it permanence." 2

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Blackstone, it may be thought, though not a Tory, was an Old Whig of a pre-eminently conservative character. Burke had always in constitutional matters leaned strongly towards historical conservatism; in 1790, when the words just cited were published, hatred of Jacobinism had transformed him into a reactionist. But Paley was a man of a calm and judicial temperament. He felt no reverence for the historic dignity and pomp of English constitutionalism. Of the anomalies presented by the institutions which lie at the basis of civilised society he could write with extraordinary freedom. The famous illustration of

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

2 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.

V.

the pigeons,' to be found in the chapter " Of Property" Lecture in his Moral Philosophy got for him the nickname of Pigeon-Paley," and the warning of his friend, Law, justified by the event, that it would exclude him from a bishopric, only elicited the retort, "Bishop or no Bishop, it shall go in." But this hard-headed and honest moralist who sacrificed his chance of promotion rather than suppress a sarcasm aimed at the evils of our own social system, and at monarchy itself, was at bottom as much a defender of the existing state of things as was Blackstone. A few sentences from Paley's excellent chapter on the British Constitution reveal his whole position."

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"Let us, before we seek to obtain anything more, consider duly what we already have. We have a House of Commons composed of 548 members, in which number are found the most considerable land"holders and merchants of the kingdom; the heads

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1 "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 gather"ing 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 noth"ing more than what is every day practised and established among “men.”—Paley, Moral Philosophy, Book iii. chap. i. (12th ed.), pp. 105,

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2 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.