IV. Lecture be carried back to a date earlier than the end of the eighteenth century, and that it may possibly at anyrate be forced back to the accession of George the Third (1760), if not even to an earlier time. On this way of looking at the matter the age of legal quiescence covers some seventy years (1760-1830). There is no possibility of fixing with any precision the limits to the period of collectivism. Socialistic ideas were, it is submitted, in no way a part of dominant legislative opinion earlier than 1865,' and their influence on legislation did not become perceptible till some years later, say till 1868 or 1870, or dominant till say 1880. This influence is still, however, not apparently on the decline, and may well, for years to come, leave its impress on the statute-book. The very dates assigned to each of our three periods bear witness to the fact that periods of belief run into one another and overlap. It is absolutely impossible to fix with precision the date at which a body of opinion begins to exert perceptible influence or even to become predominant. Secondly, The relation to legislation of each of the three currents of opinion is markedly different. The legislative inertia which, at the beginning of the nineteenth century, discouraged changes in the law was no theory of legislation. It was a sentiment of conservatism which, whether due to optimism or to hatred of revolution, opposed innovation in every province of national life. Benthamism was a definite body of doctrine 1 An early example of such influence may be found in the Metropolitan Commons Act, 1866. It reversed that policy of breaking up commons which met with the enthusiastic approval of Bentham. See Bentham, Works, i. p. 342. IV. directly applied to the reform of the law. It was a Lecture legal creed created by a legal philosopher. Hence its direct and immense influence upon the development of English law. Collectivism has been, during the nineteenth century, rather a sentiment than a doctrine, and in so far as it might be identified with socialism has been rather an economical and a social than a legal creed. Thirdly, The examination into the character and the influence of collectivism presents certain peculiar difficulties which do not meet us when studying either the old toryism of Blackstone or Eldon, or the Benthamite individualism which, in accordance with popular phraseology, may often be conveniently called liberalism. The general characteristics of the age of toryism are well-ascertained historical facts which have become the object of common knowledge. Benthamism is a definite creed. Its formulas are easily discoverable in the works of Bentham and his disciples; its practical results are visible in one statute after another. Collectivism, on the other hand, is even now rather a sentiment than a doctrine; hence it is a term which hardly admits of precise definition, and collectivism, in so far as it may be considered a doctrine, has never, in England at least, been formulated by any thinker endowed with anything like the commanding ability or authority of Bentham; its dogmas have not been reduced to the articles of a political or a social creed, still less have they been applied even speculatively to the field of law with the clearness and thoroughness with which IV. Lecture Bentham and his followers marked out the application of utilitarianism to the amendment of the law. Hence a curious contrast between the mode in which an inquirer must deal with the legislative influence on the one hand of Benthamism, and on the other hand of collectivism. He can explain changes in English law by referring them to definite and known tenets or ideas of Benthamite liberalism; he can, on the other hand, prove the existence of collectivist ideas in the main only by showing the socialistic character or tendencies of certain parliamentary enactments. The difficulties of the investigation, moreover, are increased by a peculiarity of the mode in which the ideas of collectivism have gradually entered into or coloured English legislation. The peculiarity is this: a line of Acts begun under the influence of Benthamite ideas has often, under an almost unconscious change in legislative opinion, at last taken a turn in the direction of socialism. A salient example of this phenomenon is exhibited by the effort lasting over many years to amend the law with regard to an employer's liability for damage done to his workmen in the course of their employment. Up to 1896 reformers, acting under the inspiration of Benthamite ideas, directed their efforts wholly towards giving workmen the same right to compensation by their employer for damage inflicted through the negligence of one of his workmen as is possessed by a stranger. This endeavour was never completely successful; but in 1897 it led up to and ended in the thoroughly collectivist legislation embodied in the Employers' Liability Acts, 1 See Lect. VIII., post. 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.' The thirty years from 1760 to 1790 may be well termed as regards their spirit, the age of Blackstone." 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. |