III. Referendum, which, whatever its merits or demerits, Lecture is an essentially democratic institution, a device for retarding socialistic innovations. But if the progress of democracy does not of itself, except as regards the distribution of sovereign power, necessarily determine the character of legislation, we cannot expect that it should explain the development of the law of England. The explanation must be found, if at all, in the different currents of opinion, bearing more or less directly on legislation, which have, during different parts of the nineteenth century, been predominant in England. IV. LECTURE IV THE THREE MAIN CURRENTS OF PUBLIC OPINION Lecture THE nineteenth century falls into three periods, during each of which a different current or stream of opinion was predominant, and in the main governed the development of the law of England. I. The Period of Old Toryism or Legislative This was the era of Blackstonian optimism reinforced, as the century went on, by Eldonian toryism or reaction; it may be termed the period of legislative quiescence, or (in the language of censors) stagnation. Political or legislative changes were first checked by that pride in the English constitution, and intense satisfaction with things as they were, which was inherited from a preceding generation, and is best represented by the studied optimism of Blackstone; they were next arrested by that reaction against Jacobinism and revolutionary violence which is represented by the legislative timidity of Lord 1 See R. K. Wilson, Modern English Law, chap. iii., and Lect. V. post. It is for our present purpose convenient to treat 1800, in accordance with popular phraseology, as belonging to the nineteenth century. 62 1 IV. Eldon; he devoted his great intellectual powers Lecture (which hardly receive justice from modern critics) at once to the cautious elaboration of the doctrines of equity, and to the obstruction of every other change or improvement in the law. The reactionary character of this period increased rather than diminished as the century advanced. The toryism of 1815 or 1817 was less intelligent and more violent than the toryism of 1800. Laws passed during this period, and especially during the latter part thereof, assumed a deliberately reactionary form, and were aimed at the suppression of sedition, of Jacobinism, of agitation, or of reform. But though it is easy to find examples of reactionary legislation, the true characteristic of the time was the prevalence of quiescence or stagnation. Optimism had at least as much to do with the condition of public sentiment as had the dread of revolutionary propagandism. II. The Period of Benthamism or Individualism (1825-1870) 2 This was the era of utilitarian reform. Legislation was governed by the body of opinion, popularly, and on the whole rightly, connected with the name of Bentham. The movement of which he, if not the creator, was certainly the prophet, was above all 3 1 E.g. the great Combination Act, 1800, 40 Geo. III. c. 106; the Act of 1817, 57 Geo. III. c. 19, for the prevention of seditious meetings. 2 See Lecture VI. post. 3 In the whole field of economics Adam Smith and his disciples exerted a potent influence, but it is not necessary for our purpose to distinguish between the influence of jurists and the influence of economists: they both represented the individualism of the time. Lecture things a movement for the reform of the law. Hence IV. it has affected, though in very different degrees, every part of the law of England. It has stimulated the constant activity of Parliament, it has swept away restraints on individual energy, and has exhibited a deliberate hostility to every historical anomaly or survival, which appeared to involve practical inconvenience, or in any way to place a check on individual freedom. III. Period of Collectivism (1865-1900)1 By collectivism is here meant the school of opinion often termed (and generally by more or less hostile critics) socialism, which favours the intervention of the State, even at some sacrifice of individual freedom. for the purpose of conferring benefit upon the mass of the people. This current of opinion cannot, in England at any rate, be connected with the name of 1 See Lects. VII.-IX. post. Murray's Dictionary gives no authority for the use of the word collectivism earlier than 1880. It is there defined as "the socialistic theory of the collective owner"ship or control of all the means of production, and especially of "the land, by the whole community or State, ie. the people col"lectively, for the benefit of the people as a whole." H. Sidgwick, in his Elements of Politics (2nd ed.), p. 158, uses the word to denote an extreme form of socialism. These are not exactly the meanings given to collectivism in these lectures. It is used as a convenient antithesis to individualism in the field of legislation. This use appears to be etymologically correct, and to be justified by the novelty and vagueness of the term. The very indefiniteness of the expression collectivism is for my purpose a recommendation. A person may in some respects be a collectivist, that is to say, entertain views which are not in harmony with the ideas of individualism,—and yet not uphold or entertain any general belief which could fairly be called socialism; but though the vague term collectivism is for my present purpose preferable to socialism, I shall on occasion use the more popular and current expression socialism as equivalent to collectivism. IV. any one man, or even with the name of any one Lecture definite school. It has increased in force and volume during the last half of the nineteenth century, nor does observation justify the expectation that in the sphere of legislation, or elsewhere, its strength is spent or its influence on the wane. The practical tendencies of this movement of opinion in England are best exemplified in our labour laws, and by a large amount of legislation which, though it cannot be easily brought under one head, is, speaking broadly, intended to regulate the conduct of trade and business in the interest of the working classes, and, as collectivists believe, for the benefit of the nation. Our study of each of these currents of opinion in its bearing on legislation will be facilitated by attention to certain general observations. First, Each of these three schools of thought has, if we look at the nineteenth century alone, reigned for about an equal number of years. This statement, however, needs qualification if we take into account the years which preceded the commencement, and the years, few as they are, which have followed the end of the nineteenth century. We then perceive that while the unquestioned supremacy of Benthamism lasted for a more or less assignable and limited time,—that is to say, for the thirty-five or possibly forty years which begin with 1828 or 1830,-it is impossible to fix with anything like equal precision the limit either of the period of quiescence or of the period of collectivism. The intimate connection between the name of Blackstone and the optimism which was one main cause of legislative inaction, suggests that the period of quiescence must F |