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Lecture with some peculiar, it may be transitory, fluctuation in public sentiment. The ecclesiastical legislation of the last seventy-five years leads to this result. It has been continuously affected by the dominant liberalism of the day which has told in favour of religious, no less than of civil equality. It has been modified by that cross-current (in this instance a very powerful one) of ecclesiastical opinion which has enforced respect for the convictions of Churchmen and the interest of the Established Church. But the action of this crosscurrent itself has been complicated by subtle modifications of ecclesiastical opinion. In no department of English law is more clearly visible to the intelligent investigator the close relation between the legislation and the opinion of a particular era.

Our survey of ecclesiastical legislation suggests both an observation and a question.

The observation is this: The policy, as regards Church affairs, of concession combined with conservatism, is merely one marked instance of that perpetual compromise between the spirit of innovation and the spirit of conservatism, which is the essential characteristic of English legislation and of English public life.

The inquiry is Whether the merits of this system of compromise are or are not overbalanced by its defects?

Compromise involving great deference to clerical sentiment has averted the intense bitterness which, in foreign countries, and notably in France, has accompanied ecclesiastical legislation. The position of the Church of England has throughout the nineteenth

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century been gradually shifted rather than violently Lecture altered. The grievances which in 1828 excited the hostility of Nonconformists have been immensely diminished, yet the sentiment even of the clergy has not been embittered by a revolution every step of which they and zealous Churchmen have opposed; and whilst, in some respects, the wealth, the influence, and the popularity of the Church have been increased, the profound discord which arises from the identification of political with theological or anti-theological differences, and amounts in some countries to a condition of moral civil war, has been all but entirely averted. These are the virtues of compromise.

In the field, however, of ecclesiastical legislation the vices of compromise are as marked as its merits. Controversies, which are deprived of some of their heat, are allowed to smoulder on for generations, and are never extinguished. Thus national education has been for more than fifty years the field of battle between Church and Dissent, each settlement has been the basis of renewed dispute, and even now controversy is not closed, simply because the law has never established any definite principle. One change in the marriage law after another has failed to rest the whole matter on any satisfactory foundation. Our law of divorce enables a clergyman of the Church of England to cast a slur upon a marriage fully sanctioned by the law of the State. The piecemeal legislation engendered by the desire for compromise, and the spirit which this piecemeal legislation produces, are no small evils. "The time "to do justice," it has been well said, "is now." To do justice bit by bit is in reality nothing else than

Lecture to tolerate injustice for years.

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The long line of Oaths Acts is a monument to English pertinacity in the path of reform, but it is also a record—not at all a solitary one of English indifference to the complete discharge of public duty.

Moralists or historians must weigh the merits against the faults of legislative compromise. Persons engaged in the study of legislative opinion will take a possibly fairer view of this subject, if they consider that the spirit of compromise in ecclesiastical no less than in civil legislation is in reality nothing but the evidence of the accuracy with which the English legislature reflects the ebb and flow, the weakness and the strength, the action and the counter-action of every current of public feeling or conviction strong enough to arrest the attention of Parliament.1

1 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.

LECTURE XI

JUDICIAL LEGISLATION

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My purpose in this Lecture is, first, the description Lecture of the special characteristics of judicial legislation' as regards its relation to public opinion; and, next, the illustration, by a particular example,-namely, the changes in the law as to married women's property,—of the way in which judge-made law may determine the course and character of parliamentary legislation.

I. The Special Characteristics of Judicial Legislation in Relation to Public Opinion

As all lawyers are aware, a large part and, as many would add, the best part of the law of England is judge-made law that is to say, consists of rules to be collected from the judgments of the

2

1 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.

2 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"

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Lecture Courts. This portion of the law has not been created by Act of Parliament, and is not recorded in the statute-book. It is the work of the Courts; it is recorded in the Reports; it is, in short, the fruit of judicial legislation. The amount of such judge-made law is in England far more extensive than a student easily realises. Nine-tenths, at least, of the law of contract, and the whole, or nearly the whole, of the law of torts are not to be discovered in any volume of the statutes. Many Acts of Parliament, again, such as the Sale of Goods Act, 1893, or the Bills of Exchange Act, 1882, are little else than the reproduction in a statutory shape of rules originally established by the Courts. Judge-made law has in such cases passed into statute law. Then, too, many statutory enactments, e.g. the fourth section of the Statute of Frauds, though they originally introduced some new rule or principle into the law of England, have been the subject of so much judicial interpretation as to derive nearly all their real significance from the sense put upon them by the Courts. Nor let anyone imagine that judicial legislation is a kind of law-making which belongs wholly to the past, and which has been put an end to by the annual meeting and by the legislative activity of modern (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.

1 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.