Sie sind auf Seite 1von 532

'. '"', ''

'-.

'

'.

3<j L>j-

(Snrnell ICatu ^rljnnl ffiibranj

Digitized by Microsoft®

KD 3964.D54

Cornell University Library

Lectures on the relation between law & p

3 1924 021 832 245

This book was digitized by Microsoft Corporation in

cooperation with Cornell University Libraries, 2007.

You may use and print this copy in limited quantity

for your personal purposes, but may not distribute or

provide access to it (or modified or partial versions of it)

for revenue-generating or other commercial purposes.

Digitized by Microsoft®

LECTUEES

ON

THE RELATION BETWEEN

LAW AND PUBLIC OPINION IN ENGLAND

DURING THE NINETEENTH CENTURY

Digitized by Microsoft®

Digitized by Microsoft®

LEteTUKES

ON

THE KELATION BETWEEN

LAW & PUBLIC OPINION

IN ENGLAND

DUKING THE NINETEENTH CENTUKY

,<

f,

BY

aVv* DICEY, K.C., B.C.L.

OF THE INNER TEMPLE J VINERIAN PROFESSOR OF ENGLISH LAW ; FELLOW OF ALL

SOULS COLLEGE, OXFORD ; HON. LL.D. CAMBRIDGE, GLASGOW, AND EDIN- BURGH ; AUTHOR OF 'INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION '

ILon&ott

MACMILLAN AND CO., Limited

NEW YOBK : THE MACMILLAN COMPANY

1905

All rights reserved

Digitized by Microsoft®

Digitized by Microsoft®

AS A MEMORIAL

OP A HAPPY VISIT TO THE UNITED STATES

THESE LECTURES ARE DEDICATED

TO

C. W. ELIOT

PRESIDENT OP HARVARD UNIVERSITY

WHO SUGGESTED THEIR DELIVERY

AND TO THE

PROFESSORS OF THE HARVARD LAW SCHOOL

WHOSE FRIENDLY RECEPTION ENCOURAGED THEIR PUBLICATION

Digitized by Microsoft®

Digitized by Microsoft®

PEEFACE

;

In 1898 I accepted an invitation to deliver to the

students of the Harvard Law School a short course of

lectures on the History of English Law during the

last century.

It occurred to me that this duty might

best be performed by tracing out the relation during

the last hundred years between the progress of English law and the course of public opinion in England. This

treatment of my subject possessed two recommenda-

It enabled me to survey the law of England

tions.

as a whole, without any attempt to go through the

whole of the law ; it opened, as I hoped, to my hearers

a novel and interesting view of modern legislation

a mass of irregular, fragmentary, ill expressed, and,

as it might seem, illogical or purposeless enactments,

gains a new meaning and obtains a kind of consist-

ency when seen to be the work of permanent currents

of opinion.

The lectures delivered at Harvard were the basis

of courses of lectures which, after having undergone sometimes expansion and sometimes curtailment, have

vii

Digitized by Microsoft®

LA W AND OPINION IN ENGLAND

been during the last five years delivered at Oxford.

Of the lectures originally given in America, and thus

reconsidered and rewritten, this book is the outcome.

To them it owes both its form and its character.

The form of lectures has been studiously preserved,

so that my readers may not forget that my book

pretends to be nothing but a course of lectures, and

that a lecture must from its very nature present a

mere outline of the topic with which it deals, and

ought to be the explanation and illustration of a few elementary principles underlying some subject of

interest.

The character of my book may require some ex-

planation, since it may easily be misconceived. Even

for the nineteenth century the book is not a history of English law ; still less is it a history of English

It is an attempt to follow out the connec-

opinion.

tion or relation between a century of English legisla-

tion arid successive currents of opinion.

The book is,

in fact, an endeavour to bring the growth of English

laws during a hundred years into connection with the

It cannot claim to be a

course of English thought.

work of research ; it is rather a work of inference or

reflection.

It is written with the object, not of dis-

covering new facts, but of drawing from some of the

best known facts of political, social, and legal history

certain conclusions which, though many of them

obvious enough, are often overlooked, and are not

Digitized by Microsoft®

without importance.

PREFACE

If these lectures should induce

a student here and there to study the development

of modern law in connection

modern thought, and to realise that dry legal rules

have a new interest and meaning when connected

with the varying current of public opinion, they will

have attained their object.

If this end is to any extent reached its attainment

will be due in no small measure to the aid I have

received from two authors.

I am indebted for

with the

course of

To

Sir Eoland K. Wilson

the conception of the way in which the growth of

English law might during the last century be linked

with and explained by the course of public opinion.

Thirty years have passed since, on its appearance in

1875, I read with care his admirable little manual,

The History of Modern English Law.

From its

pages I first gained an impression, which time and

study have deepened, of the immense effect produced

by the teaching of Bentham, and also a clear view

between the Blackstonian age of

of

the relation

optimism or, to use an expression of Sir Eoland

Wilson's, of "stagnation," and the Benthamite era

of -scientific law reform.

In 1875

the progress

of socialism or collectivism had hardly arrested

attention.

It had

already

begun, but

had only

begun, to enter the sphere of legislative opinion;

Sir Eoland Wilson could not, therefore, describe its

Digitized by Microsoft®

LA W AND OPINION IN ENGLAND

effects.

It would be a happy result of my book

should it suggest

to him to perform the

public

'

,

service of re-editing his treatise and bringing it up

to date, or at any rate to the end of the nineteenth

century.

To

my cousin, Leslie

Stephen,

I

am under

obligations of a somewhat different character.

For

years past I have studied all his writings with care and admiration, and, in common, no doubt, with

hundreds of other readers, have derived from them

invaluable suggestions as to the relation between the thought and the circumstances of every age.

Ideas thus suggested have aided me in almost every

Of his English Utilitarians

page of

my book.

I have made the utmost use, but, as the book was

published two years after my lectures at Harvard

were written

and delivered, and the lines

of my

work were finally laid down, I gained less direct

help from his analysis of utilitarianism than I should

have done had it appeared at an earlier date.

The

fact, however, that I found myself in substantial agreement with most of his views as to the utilitarian

school, much strengthened my confidence in already-

formed conclusions.

There is a special satisfaction

in dwelling on the help derived from Leslie Stephen's thoughts, for I feel there is some danger lest his

biographer should for the

skill and charm

as

a

moment conceal from the public his originality and

Digitized by Microsoft®

\

PREFACE

\ profundity as a thinker.

But it is a pain to reflect

that delays

in the completion of

my task have

prevented me from expressing my obligation to him

at a time when the expression might have given

him pleasure.

To the many persons who have in various ways furthered my work I tender my thanks. To one friend for the service rendered by reading the proofs

of this work, and by the correction

of errors and

the suggestion of improvements, whilst it was going

through the press, I owe an obligation which it was

as pleasant to incur

as

it

is impossible to repay.

I have special reason to feel grateful to the kind-

ness of Sir Alfred de Bock Porter for information, courteously given and hardly to be obtained from books, about the history and the working of the

Ecclesiastical Commission ; to my friend Mr. W. M.

Geldart for reading pages of my work which refer

to parts of the law of which he is in a special sense

a master ; to Mr. B. H. Pelham, of the Board of

Education ; to Mr. G. Holden, Assistant Librarian at

Secretary and

Librarian of the Athenaeum Club, for the verification

of references which during an absence from books

I could not verify for myself.

All

Souls ;

and to Mr. H.

Tedder,

A. V. DICEY.

Oxford, May 1905.

Digitized by Microsoft®

Digitized by Microsoft®

.

CONTENTS

LECTUEE I

Relation between Law and Public Opinion

Law not always the result of public opinion

.

PAGES

1-9

 

(i.)

Law may be the result of custom

 

.

3-4

(ii.) Opinion governing law

may not

be

public

 

opinion

4-5

(iii.) Want of legislative organ representing public

 

opinion

5-9

Law

in modem England the result of public opinion

 

9-10

.

How far law-making public opinion is always the opinion

of the sovereign power Objection considered, that in legislation men are guided not

10-12

by their opinion but by their interest

.

12-16

LECTUEE II

Characteristics of Law - making Opinion in England

Precise scope of lectures . Characteristics of English legislative opinion

.

.

(1) Existence at

any given time

of

current of legislative opinion

.

.

.

.

predominant

.

.

17-19

19-47

19-21

(2) Legislative opinion may originate with thinker or

school of thinkers

21-27

(3) Development of legislative opinion in England

(4)

(5)

slow and continuous

.

.

.

Slowness.

.

.

Continuity Dominant legislative opinion never despotic

.

Laws create legislative opinion

.

.

.

xiii

27-36

.27-32

32-36

36-41

41-47

Digitized by Microsoft®

LA W AND OPINION IN ENGLAND

LECTUEE III

Democracy and Legislation

PAGES

Does not advance of democracy explain development of

English law since 1800?

The plausibility of idea suggested by qiiestion

.

Advance of democracy only to slight extent ex- planation of development of English law .

Delusion that democratic form of government always

favours same kind of legislation

.

.

48-55

48-49

49-55

55-61

LECTUEE IY

The Three Main Currents of Public Opinion

Three main currents of legislative opinion corresponding

to three periods

I.

The period of old Toryism or escence (1800-1830)

.

legislative qui-

.

.

62-65

652-63

II. Period of Benthamism or Individualism (1825-

1870)

III.

Period of Collectivism (1865-1900)

.

 

Observations on the three different currents of opinion

.

.

63-64

64-65

65-69

(i.) Number of years during which each current of

opinion predominant

.

.

.

65-66

(ii.) Different relation of each current of opinion to

legislation

(iii.) Peculiar difficulty presented by examination into character and influence of Collectivism

.

LECTUEE V

66-67

67-69

The Period op Old Toryism or Legislative Quiescence

(A) State of Opinion Optimism

70-83

BlackstoneBurkePaley Goldsmith

Reaction

Eldon

Digitized by Microsoft®

CONTENTS

PAGES

LA W AND OPINION IN ENGLAND

CONTENTS

Transition from Individualism of 1832 to Collectivism

of 1870-1900

216

Explanation of change to be found not in advance of

democracy, but in following conditions

 

.

216-257

Tory philanthropy

and factory movement

.

.

219-239

Movement originally fruit of humanitarianism

 

Movement guided by Tory leaders

 

SoutheyOastlerSadlerLord Shaftes-

 

bury

Movement the first battlefield of individualism

 

and collectivism Movement introduced socialism into law of

 

England

Changed attitude of working classes

.

.

.

239-242

Modification in economic and social beliefs

.

.

242—244

Characteristics of modern

commerce .

 

.

244-247

Introduction of household suffrage

.

247-257

LECTUEE VIII

 

Period of Collectivism

(A) Principles of Collectivism

.258-287

Fundamental assumptionFaith in benefit to be

258-259

derived from State intervention

Workmen's Compensation Acts

 

259-263

Extension of idea and range of protection

 

Agricultural Holdings Acts

Eestriction of labour of women in factories

 

Adulteration of Food Acts

Restriction on freedom of contract Irish Land Acts

263-265

Agricultural Holdings Acts

Preference for collective action

265-274

Combination Act, 1875

Modern Arbitration Acts

Equalisation of advantages .

274-287

Elementary education

Employers' liability

Municipal trading

Digitized by Microsoft®

LA W AND OPINION IN ENGLAND

(B) Trend of collectivist legislation

.

.

287-301

Factory Acts

Public Health Acts

Housing of Working Classes Acts and Allotments Acts

Change in ideas as to poor law

Collectivist Bills of 1904

Legislation of British colonies Reflections on course of law and opinion from 1830

LECTUEE IX

The Debt of Collectivism to Benthamism

Modern socialism inherits from Benthamism :

(1) Legislative principlethe principle of utility

.

302-304

(2) Legislative instrument : use of parliamentary

sovereignty

304—305

(3) Legislative tendency : extension and improvement

of governmental mechanism

.

.

LECTUEE X

305-309

Counter-Currents and Cross-Currents op Legislative Opinion

Effect of counter-current already sufficiently explained

 

.

310-311

Effect of cross-current best understood from history of

 

ecclesiastical legislation, 1830-1900.

.

.

311-312

(A) Course of legislative opinion with regard to ecclesi-

astical legislation

.

.

.

.312-333

Apparent weakness of Church establishment in

1832, and anticipation of policy of compre-

hension or of disestablishment

.

.

312-316

The actual policy of conservatism and concession

and the reasons for its adoption

.

.

Liberals without any ecclesiastical policy .

.

Strength of Church

(B) Actual course of ecclesiastical legislation

.

.

Concessions to liberalism tempered by conservatism,

i.e. deference to ecclesiastical opinion .

 

.

316-333

317-323

323-333

333-356

333-334

Digitized by Microsoft®

.

CONTENTS

As to internal reform

.

334-341

Ecclesiastical Commission As to external reform

.

341-351

Marriage Law

Divorce Act, 1857

Burial Law

University Tests

Tithes and Church Rates

Consideration of objections to above view of ecclesiastical

legislation .

.

.

.

.351-356

Attempts to widen foundations of Church

Disestablishment of Irish Church

Survey of ecclesiastical legislation

.

LECTUKE XI

Judicial Legislation

356-358

I. Special characteristics of judicial legislation in relation

to public opinion

.

(i.) Judicial legislation logical

(ii.) Judicial legislation aims at certainty rather

than amendment of law .

II. Effect of judge-made law on parliamentary legislation

Law as to property of married women

Comparison between judicial and parliamentary

legislation .

359-368

362-364

364-368

369-396

369-393

393-396

LECTUKE XII

Relation between Legislative Opinion and Geneeal Public Opinion

I. Analogous changes of opinion in different spheres of

thought and in convictions of individuals

Different Spheres

Theology

Politics

.

397-430

397-407

407-409

Digitized by Microsoft®

LA W AND OPINION IN ENGLAND

PAGES.

 

Political economy and jurisprudence Convictions of Individuals

409-412

Harriet Martineau .

413-416

Charles Dickens

416-420

John Mill

.

420-430

II.

Dependence of legislative opinion on general tendencies

 
 

of English thought

430-463

Freedom of discussion and the disintegration of

beliefs

.

431-446

Apotheosis of instinct

.

446-455

Historical method . All these tendencies have weakened authority of

.

.

455-462

Benthamism .

462-463

APPENDIX

Note

I. The Eight of Association

 

465

II. The Ecclesiastical Commission

 

475

III. University Tests

.

.

.

477

IV. Judge-made Law

.

.

.

.

481

V.

Proposed Collectivist Legislation of 1905

493

INDEX .

 

.495

Digitized by Microsoft®

LECTUKE I

THE RELATION BETWEEN LAW AND PTTBLIC OPINION

My aim in

these

lectures is to exhibit the

close Lecture

dependence of legislation, and even of the absence of

legislation, in England during the nineteenth century

upon the varying currents of public opinion.

The fact of this dependence will be assumed by

most students with even too great readiness.

We

'

are all of us so accustomed to endow public opinion

with a mysterious or almost supernatural power, that

we neglect to examine what it is that we mean by public opinion, to measure the true limits of its authority, and to ascertain the mode of its operation.

Surprise may indeed be felt, not at the statement

that law depends upon opinion, but at this assertion

being limited to England, and to England during the

last century.

The limitation, however, is intentional,

and admits of full justification.

True indeed it is that the existence and the altera-

tion of human institutions must, in a sense, always

and everywhere depend upon the beliefs or feelings,

or, in other words, upon the opinion of the society in

which such institutions flourish.

" As force," writes Hume, " is always on the side of

1

B

Digitized by Microsoft®

;

LA W AND OPINION IN ENGLAND

Lecture " the governed, the governors have nothing to support

I.

" them but opinion. It is, therefore, on opinion only

" that government is founded; and this maxim extends

" to the most despotic and most military governments,

" as well as to the most free and most popular. The*

" Soldan of Egypt, or the Emperor of Rome, might

" drive his harmless subjects, like brute beasts, against

" their sentiments and inclination ; but he must, at

" least, have led his mamelukes, or praetorian bands,

" like men, by their opinion." 1

And so true is this observation that the authority

even of a Southern planter over his slaves rested at

bottom upon the opinion of the negroes whom he at

his pleasure flogged or killed.

Their combined physical

force exceeded the planter's own personal strength,

and the strength of the few whites who might be

expected to stand by him. The blacks obeyed the slave-owner from the opinion, whether well or ill founded, that in the long run they would in a con- test with their masters have the worst of the fight

and even more from that habit of submission which,

though enforced by the occasional punishment of rebels, was grounded upon a number of complicated

sentiments, such, for example, as admiration for

superior ability and courage, or gratitude for kind-

ness, which cannot by any fair analysis be reduced to

a mere form of fear, but constitute a kind of prevalent

in short, ruled in

moral atmosphere.

The whites,

virtue of the opinion, entertained by their slaves

no less than by themselves, that the slave -owners

possessed qualities which gave them the might, and

even the right, to be masters.

With the rightness or

1 Hume, Essays, vol. i., Essay iv. p. 110: Green and Grose.

Digitized by Microsoft®

RELATION BETWEEN LAW AND PUBLIC OPINION 3

wrongness of this conviction we are not here in any Lecture way concerned. Its existence is adduced only as a _

proof that, even in the most extreme case conceiv-

able, Hume's doctrine holds good, and the opinion of

the governed is the real foundation of all government.

But, though obedience to law must of necessity be

enforced by opinion of some sort, and Hume's paradox

thus turns out to be a truism, this statement does not involve the admission that the law of every country

is itself the result of what we mean by "public

opinion."

This

term,

when

used

in reference to

legislation, is merely a short way of describing the

belief or conviction prevalent in a given society that

particular laws are beneficial, and therefore ought to

be maintained, or that they are harmful, and therefore

ought to be modified or repealed.

And the assertion

that public opinion governs legislation in a particular

country, means that laws are there maintained or repealed in accordance with the opinion or wishes of

Now this assertion, though it is, if

its inhabitants.

properly understood,. true with regard to England at

the present day, is clearly not true of all countries, at

all times, and indeed has not always been true even of England.

n

For, in the first place, there exist many communi- [1 \

ties in which ^ public opinionif by that term be meant speculative views held by the mass of the

people as to the alteration or improvement of their institutionscan hardly be said to have any existence.

The members of such societies are influenced by

habits rather than by thoughts.

Their mode of life

is determined by customary rules, which may indeed

have originated in the necessities of a given social

Digitized by Microsoft®

LAW AND OPINION IN ENGLAND

Lecture condition, or even in speculative doctrines enter-

1 tained by ancient law -givers, but which, whatever

be their origin, assuredly owe their continuance to

use and wont. It is, in truth, only under the peculiar

conditions of an advanced civilisation that opinion

dictates legislative change. In many Eastern countries,

opinionwhich is better described as traditional or

instinctive feeling has for ages been, in general,

hostile to change and favourable to the maintenance

of inherited habits.

There, as in the West, opinion,

in a very wide sense of that word, rules ; but such

aversion to change as for ages keeps a society within

the limits of traditional action, is a very different

thing from the public opinion which in the England

of the nineteenth

and twentieth centuries has

demanded constant improvements in the law of the

land. It is possible, in the second place,

realms where laws and institutions have been altered

or revolutionised in deference to opinion, but where

the beliefs which have guided legislative reform have

not been what we mean in England by " public"

opinion. They have been, not ideas entertained by the

inhabitants of a country, or by the greater part thereof, but convictions held by a small number of men, or

even by a single individual who happened to be

placed in a position of commanding authority. We

must, indeed, remember that no ruler, however power-

ful, can stand completely alone, and that the despots who have caused or guided revolutions have been

influenced by the opinion, if not of their own country,

yet of their generation. But it may be asserted with substantial truth that Peter the Great laid the

to point to

Digitized by Microsoft®

RELATION BETWEEN LAW AND PUBLIC OPINION 5

foundation of Russian power without much deference Lecture

to the opinion of Russia, and that modern Prussia was created by Frederick the Great, who certainly

drew his ideas of good government from other than

It was not, then, the public opinion

Prussian sources.

of the Russian people or the public opinion of the

Prussians, but the convictions of a single man which

in

each case moulded

of a powerful country.

the laws and institutions

At this moment legislation

_

in British India is the work of a body of English

specialists who follow to <