authority from the judgments of the Courts, the objection that there is no such thing as judge-made law has received a substantial answer.

Second objection.-Judges, it has sometimes been maintained, have undoubtedly in fact made law, but have accomplished their end by the fraudulent pretence that they were interpreting a law which, without any moral claim to do so, they were in fact creating.

This contention, that laws are the result of judicial frauds is nearly akin to the delusion that religions are the growth of priestly imposture. Both of these notions are ideas belonging to an obsolete mode of thought. In neither case do they deserve careful confutation. The notion that judges pretended to expound the laws which they really made is based upon ignorance of the fact that fiction is not fraud, and that legal fictions are the natural product of certain social and intellectual conditions. Nor, be it added, has the progress of civilisation as yet enabled us to get rid entirely of something very like legal fictions, or at any rate of the tendency in some departments of law to confuse facts with fictions. This habit is still very traceable in the field of constitutional law. It is convenient-perhaps necessary to consider the will of the majority as the will of the whole nation. But it is perfectly clear that this identification, whatever its convenience or its necessity, is a political fiction. What, again, are we to say about the powers ascribed by English constitutionalists to the King? In some instances, no doubt, the fiction is a mere figure of speech. Few, one trusts, are the men who seriously believe that the millions raised by taxes are granted to or spent by the King. Most persons probably know that the King himself takes no share in the administration of justice. But what part does he or can he take in the appointment of ministers, or in moulding the policy of the country? The wisest constitutionalist is the man who on such matters keeps a judicious silence. One may conjecture that those who minimise and those who "maximise" (if we may use a term invented, like minimise, by Bentham) the action of the Crown are in equal danger of error. Fiction and fact are here probably blended. The artificial ascription of almost unlimited power to the King is a means of concealing the fact that powers which are not unlimited are indefinite.

Third objection. The Courts, it is sometimes said and still more often thought, though they certainly do legislate, never ought to legislate at all.

This is an idea constantly put forward by persons who, rightly or wrongly, object to some principle established by judicial

decisions. Such critics urge not only that the rule which they condemn is a bad one, on which point they may perfectly well be in the right, but also that the rule, whether wise or unwise, whether right or wrong, ought never to have been laid down at all by the Courts, and this on the ground that it is the business of the Courts to decide cases and not to make laws.

The answer to this line of criticism is that the person who pursues it has in no case a right to blame the judges. His argument may mean that the whole English judicial system, with its respect for precedent, is a bad one. So be it. But, even if this be so, English judges cannot be blamed for acting in accordance with a system which they are appointed to administer. Our objector's argument, on the other hand, may mean that, the English system being what it is, judges can, if they choose to do so, always avoid judicial legislation. But, if this be the critic's meaning, he distinctly ascribes to judges a liberty of choice which they do not in fact possess. To simplify the matter, let us confine our attention to the House of Lords. A case comes before the House which can only be decided by either affirming or denying the application or validity of some principle. But either affirmation or denial will equally establish a precedent, or in other words, a legally binding rule or law. How under this state of things can the House by any possibility avoid judicial legislation ? Return to the case already noted of Derry v. Peek. The question to be determined was, whether gross negligence when unaccompanied by deceit could be treated as equivalent to fraud. There was much to be said in favour of an affirmative answer, and the Court of Appeal said it with great force. There was much also to be said in favour of a negative answer, and this, too, was said by Lord Herschell and other eminent lawyers with the greatest vigour. The House of Lords did, as a matter of fact, give a negative reply, and laid down the law that carelessness was a different thing from lying. It is not necessary to decide or to intimate which of two possible rules was the more logical. All that need here be contended is that the House was compelled to lay down one rule or the other, and that whichever rule was laid down would in effect become law. In this case, as in a thousand others, the House, though acting as a Court, was compelled to legislate; and what is true of the House of Lords applies in a measure to every Court throughout the land. A critic who objects to the rule, or in reality the law established by a judg ment of the House of Lords may maintain that the House committed an error. He may maintain that the rule which the Lords established was not a logical deduction from the principles they intended to follow, or that the rule, though logical, was

inexpedient, or, if he pleases, that the rule was both illogical and inexpedient. But if he has mastered the nature of judge-made law he will hardly commit himself to the contention that the House of Lords was to blame simply because its judgment established a fixed rule of law. This was a result over which the House had no control, and for which, therefore, it deserved neither praise nor blame.

NOTE V

PROPOSED COLLECTIVIST LEGISLATION OF 1905

At the moment when the last pages of this book are passing through the press four measures have already been received with favour by the House of Commons. They are the Trades Dispute Bill, the Aliens Bill, the Unemployed Workmen Bill, and the Relief (School Children) Order.

These proposals suggest more than one observation strictly germane to the subject of these lectures.

First. They mark the distance which divides the democratic collectivism of to-day from the Benthamite liberalism of 18301870. The Trades Dispute Bill and the Aliens Bill are inroads upon individual liberty as understood by the Liberals say of fifty years ago; the Unemployed Workmen Bill and the Relief (School Children) Order strike a blow at the foundations of the great Benthamite reform embodied in the new poor law of 1834.

Second.-A legislative revolution is clearly due to a change. of public opinion. If any opponent imputes it-which is certainly not my intention-to the selfishness or recklessness of politicians, and asserts, unfairly enough, that English statesmen have no other desire than to please the electors, he may rightly be asked why it is that the electors themselves approve in 1905 of laws which they would not have approved of in 1875 or 1885? He can give but one answer-" a change of public opinion." But it must in fairness be remembered that political leaders are themselves affected by alterations in the moral or social atmosphere which tell upon their followers, and that there is no reason to suppose that English politicians are either more or less rash or selfish in 1905 than in 1875.

Third.-A revolution of opinion which is going on before our eyes is assuredly not in the main caused by the strength of argument The arguments for and against say the Unemployed Workmen Bill are the same which must have been employed in

favour of or in opposition to a similar measure in 1875. But today the weight of argument is thought by thousands of Englishmen to tell conclusively for the acceptance of the measure, whilst thirty, or twenty, or even ten years ago the weight of argument would have been thought to tell conclusively for its rejection. Opinion has been changed, not by argument, but by circumstances.

Fourth. The rapidity with which collectivist legislation now makes way excites astonishment. It need surprise no one who thinks it worth while to study, and accepts the conclusions arrived at in these lectures. The socialistic laws of to-day are not to be ascribed to any sudden change. They are forced on by a current of opinion which has been gathering force for at least forty years.

INDEX