I.

Lecture progress was, if not a fool, then a rogue, who deliberately preferred his own private advantage to the general benefit of mankind, whereas in reality he will be found in most cases to have been an honest man of average ability, who has opposed a beneficial change not through exceptional selfishness, but through some intellectual delusion unconsciously created by the bias of a sinister interest. Take the extreme case of American slave-owners. It will not be denied that, at the outbreak of the War of Secession, there were to be found in the South many fervent enthusiasts for slavery (or rather for the social system of which it was a necessary part), just as there were to be found in the North a far greater number of ardent enthusiasts for abolition. Some Southerners at least did undoubtedly hold the bona fide belief that slavery was the source of benefit, not only to the planters, but to the slaves, and indirectly to the whole civilised world. Such Southern fanatics were wrong and the Abolitionists were right. The faith in slavery was a delusion; but a delusion, however largely the result of self-interest, is still an intellectual error, and a different thing from callous selfishness. It is at any rate an opinion. In the case, therefore, of Southerners who resisted the passing of any law for the abolition of slavery, as in all similar instances, we are justified in saying that it is at bottom opinion which controls legislation.

LECTURE II

CHARACTERISTICS OF LAW-MAKING OPINION IN

ENGLAND

II.

LET it be here noted once for all that these lectures Lecture have a very precise and limited scope; they are primarily concerned with public opinion only during the nineteenth century; they are concerned, directly at least, even for this period, only with that kind of public opinion which, since it has told on the course of legislation, may with strict propriety be called law-making or legislative public opinion, and is recorded either in the statute-book, which contains the laws enacted by Parliament, or in the volumes of the reports, which contain the laws indirectly but not less truly enacted by the Courts.1

The limited aim of these lectures explains, in the first place, why it is that I have attempted only a very general or broad account of different schools of opinion, e.g. either of individualism or of socialism;" fine and subtle distinctions, such as the speculative differences which divide the absolute individualism of Herbert Spencer on the one hand, from the practical or utilitarian individualism of J. S. Mill and H.

1 As to judicial legislation and public opinion, see Lect. XI. post. 2 In these lectures generally termed "collectivism." See Lect. IV. p. 64 post.

II.

Lecture Sidgwick on the other, have not materially affected legislation; they are therefore appropriate rather to a work dealing with political philosophy, than to lectures on the relation between the actual current of opinion and actual legislation in England during a given period, and may be dismissed from our consideration. The limited scope of these lectures explains, in the second place, why it is that they contain nothing about the extreme forms either of individualism or of socialism. Extreme and logically coherent theories have, during the nineteenth century, exerted no material effect on the law of England. It is moderate though it may be inconsistent individualism alone, as it is moderate though it may be inconsistent socialism alone, which has told upon the making of English laws, and which therefore can claim to be legislative public opinion. With the individualism which all but demands the abolition of the national Post Office we need trouble ourselves as little as with the socialism which advocates the nationalisation of the land.

When we talk of legislative public opinion we should not forget that such opinion may bear a merely negative character, and operate not by making laws but by forbidding their enactment. It is, in short, a force which may act either, as it does nowadays, in favour of innovation, or, as it did in the early part of the nineteenth century, in favour of conservatism. In England, indeed, periods of legislative activity have always been exceptional. They may be reduced to four, namely, the era of Edward I., the age of the Tudors, the period of the Restoration, and the years which, commencing a

II.

little before, have followed the Reform Act of 1832. Lecture Nor need the fact that the absence of energetic legislation has been emphatically the rule, not the exception, cause us surprise. In any country which is governed in accordance with the wishes of its inhabitants there will in general exist no effective desire for change. And this is a consideration worth notice, since the legislative activity which has more or less prevailed for the last seventy years produces among Englishmen the delusion that popular sentiment always favours vigorous legislation. The experience, at any rate, of democratic countries where the constitution provides a regular mode of appeal from the legislature to the people, proves that the voice of the people may be just as ready to check as to stimulate the energy of parliamentary law-makers. It is at least possible that in England the legislative activity of Parliament may again decrease and the country enter upon another period of legislative inertia.

However this may be, public legislative opinion, as it has existed in England during the nineteenth century, presents several noteworthy aspects or characteristics. They may conveniently be considered under five heads-the existence at any given period of a predominant public opinion; the origin of such opinion; the development and continuity thereof; the checks imposed on such opinion by the existence of counter-currents and cross-currents of opinion; the action of laws themselves as the creators of legislative opinion.

First, There exists at any given time a body of beliefs, convictions, sentiments, accepted principles, or firmly-rooted prejudices, which, taken together,

Lecture make up the public opinion of a particular era, or II. what we may call the reigning or predominant

current of opinion, and, as regards at any rate the last three or four centuries, and especially the nineteenth century, the influence of this dominant current of opinion has, in England, if we look at the matter broadly, determined, directly or indirectly, the course of legislation.

It may be added that the whole body of beliefs existing in any given age may generally be traced to certain fundamental assumptions which at the time, whether they be actually true or false, are believed by the mass of the world to be true with such confidence that they hardly appear to bear the character of assumptions. Before the Reformation, for example, the authority of the Church, and of the Papacy as its visible head, was generally admitted throughout Western Europe both by thinkers and by men of action. As to the nature and limits of this authority there were no doubt wide differences of belief, but the general opinion of the time recognised the authority of the Church and the Papacy in matters of religion as past dispute. A belief, in short, which in later ages has been rejected by many men and by the population of many countries, as not only untrue but even incredible, seemed at one period so well established that its truth was among statesmen and thinkers hardly matter of debate.

The large currents, again, of public opinion which in the main determine legislation, acquire their force and volume only by degrees, and are in their turn liable to be checked or superseded by other and adverse currents, which themselves gain strength only