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People's Democratic Party of Afghanistan. Party of Labour of Albania. People's Movement for the Liberation of Angola. People's Revolutionary Party of Benin. Bulgarian Communist Party. Communist Party of Kampuchea. Kampuchean People's Revolutionary Party. Congolese Party of Labour. The theory of free trade won by degrees the approval of statesmen of special insight, and adherents to the new economic religion were one by one gained among persons of intelligence. Cobden and Bright finally became potent advocates of truths of which they were in no sense the discoverers.
This assertion in no way detracts from the credit due to these eminent men. They performed to admiration the proper function of popular leaders; by prodigies of energy, and by seizing a favourable opportunity, of which they made the very most use that was possible, they gained the acceptance by the English people of truths which have rarely, in any country but England, acquired popularity. Much was due to the opportuneness of the time. Protection wears its most offensive guise when it can be identified with a tax on bread, and therefore can, without patent injustice, be described as the parent of famine and starvation.
The unpopularity, moreover, inherent in a tax on corn is all but fatal to a protective tariff when the class which protection enriches is comparatively small, whilst the class which would suffer keenly from dearness of bread and would obtain benefit from free trade is large, and having already acquired much, is certain soon to acquire more political power. Add to all this that the Irish famine made the suspension of the corn laws a patent necessity. It is easy, then, to see how great in England was the part played by external circumstances—one might almost say by accidental conditions—in determining the overthrow of protection.
A student should further remark that after free trade became an established Edition: current; Page: [ 20 ] principle of English policy, the majority of the English people accepted it mainly on authority.
Social Democracy | Mises Institute
Men, who were neither land-owners nor farmers, perceived with ease the obtrusive evils of a tax on corn, but they and their leaders were far less influenced by arguments against protection generally than by the immediate and almost visible advantage of cheapening the bread of artisans and labourers. What, however, weighed with most Englishmen, above every other consideration, was the harmony of the doctrine that commerce ought to be free, with that disbelief in the benefits of State intervention which in had been gaining ground for more than a generation.
It is impossible, indeed, to insist too strongly upon the consideration that whilst opinion controls legislation, public opinion is itself far less the result of reasoning or of argument than of the circumstances in which men are placed. But the religious beliefs and, except as regards the existence of slavery, the political institutions prevalent throughout the whole of the United States were the same. The condemnation of slavery in the North, and the apologies for slavery in the South, must therefore be referred to difference of circumstances. Slave labour was obviously out of place in Massachusetts, Vermont, or New York; it appeared to be, even if in reality it was not, economically profitable in South Carolina.
An institution, again, which was utterly incompatible with the social condition of the Northern States harmonised, or appeared to harmonise, with the social conditions of the Southern States. The arguments against the peculiar institution were in themselves equally strong in whatever part of the Union they were uttered, but they Edition: current; Page: [ 21 ] carried conviction to the white citizens of Massachusetts, whilst, even when heard or read, they did not carry conviction to the citizens of South Carolina. Belief, and, to speak fairly, honest belief, was to a great extent the result not of argument, nor even of direct self-interest, but of circumstances.
What was true in this instance holds good in others. There is no reason to suppose that in the squires of England were less patriotic than the manufacturers, or less capable of mastering the arguments in favour of or against the reform of Parliament. But every one knows that, as a rule, the country gentlemen were Tories and anti-reformers, whilst the manufacturers were Radicals and reformers.
Thirdly, The development of public opinion generally, and therefore of legislative opinion, has been in England at once gradual, or slow, and continuous. The qualities of slowness and continuity may conveniently be considered together, and are closely interconnected, but they are distinguishable and essentially different.
Legislative public opinion generally changes in England with unexpected slowness. All the strongest reasons in favour of Catholic emancipation were laid before the English world by Burke between and ; the Roman Catholic Relief Act was not carried till His Rationale of Judicial Evidence specially applied to English Practice was published in , and his principles had been made known before that date, yet even the restrictions on the evidence of the parties to proceedings at law were not completely removed till Nor is this slow growth of opinion peculiar to the legislation advocated by any one school.
The line of Factory Acts begins in ; the movement of which they are the outward result achieved its first decided triumph in , and received its systematic, though assuredly not its final development in the labour code known as the Factory and Workshop Act, Owing to the habitual conservatism to be found even among ardent reformers when leaders of Edition: current; Page: [ 22 ] Englishmen, and to the customs of our parliamentary government, the development of legislative opinion is rendered still slower by our inveterate preference for fragmentary and gradual legislation.
Only in exceptional cases and under the pressure of some crisis can English legislators be induced to carry out a broad principle at one stroke, to its logical and necessary consequences. Before the end of the eighteenth century Englishmen of intelligence had ceased to believe that Roman Catholicism could be rightly treated as a crime, and come to doubt whether it was a fair ground of political disability.
But the penal laws against Roman Catholics were relaxed only by degrees; they were mitigated in 18 Geo. It was not till that professors of the old faith were granted substantial political equality, and since the passing of the Catholic Relief Act, , more than one Act of Parliament has been needed in order to remove the remnants of the old penal laws.
The broad principle that religious belief or disbelief ought not in any way to deprive a man of political rights or civil rights, has at last been in the main accepted by the English people, but it has needed a whole line of enactments from the Toleration Act, , to the Oaths Act, , 10 to give all but complete effect to this accepted idea. The modern labour code 11 is the fruit of more than forty enactments extending over the greater part of the nineteenth century.
The mitigation of our criminal law has been carried out by a long series of separate Acts, each dealing with special offences. Even the gross brutality of the pillory was not got rid of at one blow. In it was reserved for a limited number of crimes 56 Geo. If capital offences have been reduced from at least to 2, this humanisation of our law is the consequence of a series of Acts dating from the beginning of the nineteenth century, and passed for the most part between and Here, as elsewhere, exceptions prove the rule.
The early energy of the generation which, wearied with toryism, carried the Reform Act, effected for a short Edition: current; Page: [ 23 ] time legislation which to its authors seemed sweeping and thoroughgoing. The Reform Act itself startled the Whigs by whom it was carried. The Municipal Reform Act, , swept away at once a mass of antiquated abuses; above all, the Poor Law Amendment Act, , did in reality introduce, and introduce at once, a fundamental revolution in the social condition of England.
But even these laws fell far short of giving full effect to the principles which they more or less embodied; the Reform Act had no finality, and the Municipal Corporations Act, , 12 bears witness in its list of sixty-eight repealed enactments to the gradual procedure by which modern municipal government has received its development.
The slowness with which legislative opinion acts is not quite the same thing as its continuity, though the bit by bit or gradual system of law-making dear to Parliament, does in truth afford strong evidence that the course of opinion in England has certainly during the nineteenth century, and probably ever since parliamentary government became to any degree a reality, been continuous, i. To this general statement an objection may possibly be taken, based on the history of the great Reform Act.
In , it may be said, passionate enthusiasm for parliamentary reform and all the innovations to which it gave birth, displaced, as it were, in a moment the obstinate toryism which for nearly half a century had been the accepted creed, if not of the whole nation, yet assuredly of the governing classes; here we have a revolution in popular opinion of which the violence was equalled by the suddenness.
The true answer is, that there exists an important distinction between a change of public opinion and an alteration in the course of legislation. The one has in modern England never been rapid; the other has sometimes, Edition: current; Page: [ 24 ] though rarely, been sudden; the history of the Reform Act admirably illustrates this difference. The spirit of Benthamite liberalism, 15 which in put an end to the reign of toryism, had developed slowly and gradually during a period of more than thirty years.
We have here no sudden conversion of the people of England from one political faith to another; the really noteworthy fact is the length of time needed in order to convince Englishmen that their ancient institutions stood in need of alteration. Even when this conviction had been adopted by the mass of the middle classes, public opinion, owing to the constitution of the unreformed Parliament, could not be immediately transformed into legislative opinion. The very need for the reform of Parliament of itself prolonged for some years the period of legislative inactivity.
At last the dominant opinion of the country, strengthened no doubt by external circumstances, such as the French Revolution of , became the legislative opinion of the day. Liberalism of the Bethamite [sic] type was the political faith of the time. Its triumph was signalised by the Reform Act. Then, indeed, there did take place a startling change in legislation, but the suddenness of this change was due to the fact that a slowly developed revolution in public opinion had been held in check for years, and had, even when it became general, not been allowed to produce its proper effect on legislation; hence such an accumulation of abuses as made their rapid removal desirable, and in some cases possible.
For, after all, the rapidity and the suddenness of the change in the course of legislation may easily be exaggerated. A critic who traces the history of special reforms which followed the Reform Act, is far more often struck by the slowness and the incompleteness, than by the rapidity of their execution.
In any case the history of the Reform Act in reality supports the doctrine, that the development of legislative opinion has been throughout the nineteenth century slow and continuous. This continuity is closely connected with some subordinate characteristics of English legislative opinion. The opinion which changes the law is in one sense the opinion of the time when the law is actually altered; in another sense it has often been in England the opinion prevalent some twenty or thirty years before that time; Edition: current; Page: [ 25 ] it has been as often as not in reality the opinion not of to-day but of yesterday.
Legislative opinion must be the opinion of the day, because, when laws are altered, the alteration is of necessity carried into effect by legislators who act under the belief that the change is an amendment; but this law-making opinion is also the opinion of yesterday, because the beliefs which have at last gained such hold on the legislature as to produce an alteration in the law have generally been created by thinkers or writers, who exerted their influence long before the change in the law took place.
Thus it may well happen that an innovation is carried through at a time when the teachers who supplied the arguments in its favour are in their graves, or even—and this is well worth noting—when in the world of speculation a movement has already set in against ideas which are exerting their full effect in the world of action and of legislation.
It was published in ; he died in Nor is there anything mysterious about the way in which the thought or sentiment of yesterday governs the legislation or the politics of to-day. Law-making in England is the work of men well advanced in life; the politicians who guide the House of Commons, to say nothing of the peers who lead the House of Lords, are few of them below thirty, and most of them are above forty years of age.
They have formed or picked up their convictions, and, what is of more consequence, their prepossessions, in early manhood, which is the one period of life when men are easily impressed with new ideas. Hence English legislators retain the prejudices or modes of thinking which they acquired in their youth; and when, late in life, they take a share in actual legislation, Edition: current; Page: [ 26 ] they legislate in accordance with the doctrines which were current, either generally or in the society to which the law-givers belonged, in the days of their early manhood.
The law-makers, therefore, of may give effect to the opinions of , whilst the legislators of are likely enough to impress upon the statute-book the beliefs of , or rather the ideas which in the one case attracted the young men of , and in the other the youth of The tide turns when at its height; a school of thought or feeling which still governs law-makers has begun to lose its authority among men of a younger generation who are not yet able to influence legislation.
In England during the last three or four centuries, and especially during the nineteenth century, there has always at any given era existed some prevalent or dominant body of public opinion which in its turn has been succeeded by some different, it may be by some distinctly opposed, school of thought, but the periods during which each body of opinion has been more or less supreme, cannot be marked off from one another by any strict or rigid line. Currents of opinion have a tendency to run into one another; periods of opinion overlap.
Historians tell us that if we survey the era of the Reformation it is all but impossible to fix the exact date at which Englishmen definitely accepted Protestantism, and that the difficulty of fixing the date at which the country could be finally ranged among Protestant rather than Roman Catholic communities, arises from the fact that the change of belief, which ultimately became perfectly marked, was, in the case of individuals, if we study their personal history, and therefore in the case of the indefinite number of persons who made up the whole English nation, vague, partial, and ill-defined.
Elizabeth carried through the Reformation, but Elizabeth entertained beliefs or sympathies which belonged rather to Roman Catholicism than to Protestantism. Of many among her courtiers and servants it is hardly possible to say whether they were Catholics or Protestants. Self-interest, Edition: current; Page: [ 27 ] no doubt, had a good deal to do with the easy transition of ambitious statesmen from one creed to another, in accordance with the wishes of the reigning monarch or the exigencies of the time; a revolutionary era is unfavourable to conscientious scrupulosity and promotes shiftiness.
But the conduct of a whole nation is governed by something better than sordid views of self-interest. The merit, or the demerit, of the ecclesiastical system established by the Tudors was that it made easy the blending of old with new beliefs; and the indefiniteness of the line which, even at epochs of deep and violent revolutions in belief, divides one body of opinion from another is still more marked when we come to consider the bodies of legislative opinion which have been dominant during the nineteenth century; for there was during that century nothing violent in the opposition between different schools of thought, and every man of average courage and independence was at liberty to obey the natural and therefore, in many cases, most illogical developments of his own convictions.
Fourthly, The reigning legislative opinion of the day has never, at any rate during the nineteenth century, exerted absolute or despotic authority. Its power has always been diminished by the existence of counter-currents or cross-currents of opinion 18 which were not in harmony with the prevalent opinion of the time. A counter-current here means a body of opinion, belief, or sentiment more or less directly opposed to the dominant opinion of a particular era. Counter-currents of this kind have generally been supplied by the survival of ideas or convictions which are gradually losing their hold upon a given generation, and particularly the youthful part thereof.
The past controls the present. Counter-currents, again, may be supplied by new ideals which are beginning to influence the young. The hopes or dreams of the generation just coming into the field of public life undermine the energy of a dominant creed. Counter-currents of opinion, whatever their source, have one certain and one possible effect. The certain effect is that a check is imposed upon the action of the dominant faith.
Thus, from to the Benthamite liberalism of the day, which then exerted its highest authority, was held in check by the restraining power of the older and declining toryism. Hence the progress of parliamentary reform, that is, the advance towards democracy, was checked. Reformers, no less than Tories, felt the influence of the counter-current.
Some of the ablest among the Reform Ministry of had by turned Conservatives, and became in members of a Conservative Cabinet. The possible, but far less certain, result of a strong counter-current may be to delay a reform or innovation 20 for so long a time that ultimately it cannot be effected at all, or else, when nominally carried out, becomes a measure of an essentially different character from the proposal put forward Edition: current; Page: [ 29 ] by its original advocates.
Delay thus caused, while it hinders the growth or application of the dominant political or social faith, may introduce into this faith itself an essential modification. The Reform Act of was different in principle from the measure proposed by Pitt; the Whig reformers of were unlike the democrats or the Tories of The liberalism of again found its authority and effective power diminished even in the hey-day of its triumph by surviving toryism, and progress towards democracy was, in a sense at any rate, checked till But this check meant much more than the mere postponement of liberal reforms.
Ancient toryism died hard. It lived long enough to leave time for the rise of a new toryism in which democratic sentiment deeply tinged with socialism, blends with that faith in the paternal despotism of the State which formed part of the old Tory creed. Liberalism itself has at last learned to place no small confidence in the beneficent effects of State control; but this trust, whether well founded or not, is utterly foreign to the liberalism of The assertion that to delay the action of a political creed may introduce into it essential modification, is opposed to the superstition, propagated by many eminent writers, that reformers, though baffled during their lifetime by the opposition of ignorance, prejudice, or selfishness, may count on their efforts being crowned with success in some subsequent age.
The causes which they espoused triumphed so completely that the Tories of this generation are more Liberal than the Liberals of Neither the Edition: current; Page: [ 30 ] democratic toryism nor the socialistic liberalism of to-day is the philosophic radicalism of Bentham, of Grote, or of Molesworth. The strong counter-current of ancient toryism has, by delaying their action, modified all the political beliefs of A cross-current of opinion may be described as any body of belief or sentiment which, while strong enough ultimately to affect legislation, is, yet in a measure independent of, though perhaps not directly opposed to, the dominant legislative creed of a particular era.
Such a cross-current differs from a counter-current in that it does not so much directly oppose the predominant opinion of a given time as deflect and modify its action. Thus ecclesiastical legislation since will never be understood by any historian who does not take into account both the general current of public opinion, the trend whereof has been more or less anti-clerical, and also the strong cross-current of clerical opinion which, favouring, as it naturally has done, the authority of the established Church, has affected legislation, not only as to ecclesiastical matters, but also in spheres such as that of national education, which appear at first sight to lie somewhat outside the operation of ecclesiastical beliefs.
Fifthly, Laws foster or create law-making opinion. This assertion may sound, to one who has learned that laws are the outcome of public opinion, like a paradox; when properly understood it is nothing but an undeniable though sometimes neglected truth. Every law or rule of conduct must, whether its author perceives the fact or not, lay down or rest upon some general principle, and must therefore, if it succeeds in attaining its end, commend this principle to public attention Edition: current; Page: [ 31 ] or imitation, and thus affect legislative opinion.
A principle derives prestige from its mere recognition by Parliament, and if a law fails in attaining its object the argument lies ready to hand that the failure was due to the law not going far enough, i. The Reform Act of disfranchised certain corrupt boroughs, and bestowed on a limited number of citizens belonging mainly to the middle class, the right to vote for members of Parliament. But the transcendent importance of the Act lay in its effect upon public opinion. Reform thus regarded was revolution. It altered the way in which people thought of the constitution, and taught Englishmen, once and for all, that venerable institutions which custom had made unchangeable could easily, and without the use of violence, be changed.
It gave authority to the democratic creed, and fostered the conviction or delusion that the will of the nation could be expressed only through elected representatives. The arguments in favour of practical conservatism which, put forward by Burke or Paley, satisfied at least two generations, so lost their popular force that modern Conservatives, no less than modern Liberals, find it hard to understand the attitude towards reform of men as able as Canning or Sir Walter Scott.
The new poor-law did much more than apply a drastic remedy to a dangerous social disease: it associated pauperism—a different thing from poverty—with disgrace; it revived, even among the poor, pride in independence, and enforced upon the whole nation the faith that in the battle of life men must rely for success, not upon the aid of the State, but upon self-help. The Divorce Act of on the face of it did no more than increase the facilities for obtaining divorce. It in reality gave national sanction to the contractual view of marriage, and propagated the belief that the marriage contract, like every other agreement, ought to be capable of dissolution when it fails to attain its end.
Nor can any one doubt that these enactments have in their turn given strength to the belief that women ought, in the eye of the law, to stand substantially on an equality with men, and have encouraged legislation tending to produce such equality. In this matter laws have deeply affected not only the legislative but also the social opinion of the country as to the position of women.
It is further clear that the statutes to which reference has here been made, and others like them, have all tended to strengthen that faith in laissez-faire which is of the very essence of legislative Benthamism. Law and opinion, indeed, are here so intermixed that it is difficult to say whether opinion has done most to produce legislation or laws to create a state of legislative opinion. That law creates opinion is plain enough as regards statutes which obviously give effect, even though it may be imperfectly, to some wide principle, but holds at least equally true of laws passed to meet in the readiest and often most offhand manner some pressing want or popular demand.
But this is a delusion. Every law must of necessity be based on some general idea, whether wise or foolish, sound or unsound, Edition: current; Page: [ 33 ] and to this principle or idea it inevitably gives more or less of prestige. A member of Parliament is garotted; 27 a demand is made that garotters shall be flogged; a law is passed to meet this wish. The Act, whether wise or not, rests upon and countenances the notion, combated by the wisest philanthropists of an earlier generation, that severity rather than certainty of punishment is the best check on crime.
The Garotters Act, , therefore clearly did affect legislative opinion. The Money-lenders Act, , again, may well be called an Act for the suppression of Isaac Gordon, since it was to a great extent the outcome of indignation against the rapacity and cruelty of that particular usurer. But this Act, though produced by temporary feeling, not only revives the usury laws, but gives expression and authority to beliefs supposed to have been confuted by reason. It is far, indeed, from being true that laws passed to meet a particular emergency, or to satisfy a particular demand, do not affect public opinion; the assertion is at least plausible, and possibly well founded, that such laws of emergency produce, in the long run, more effect on legislative opinion than a law which openly embodies a wide principle.
Laws of emergency often surreptitiously introduce or reintroduce into legislation, ideas which would not be accepted if brought before the attention of Parliament or of the nation. Is it certain that the legislators who passed the Money-lenders Act, , might not have hesitated formally to re-enact the usury laws which Parliament deliberately repealed in ?
Yet this apparent prudence is, in reality, often no better than the height of rashness. A principle carelessly introduced into an Act of Parliament intended to have a limited effect may gradually so affect legislative opinion that it comes to pervade a whole field of law. The money, for want of any thought-out scheme based on any intelligible principle, was spent on a sort of subscription to two societies which, supported by voluntary contributions and representing, the one the Church of England and the other, in effect, the Dissenters, did what they could in the way of affording to the English poor elementary education, combined with religious instruction.
So much as to the influence of law on opinion, which, after all, is merely one example of the way in which the development of political ideas is influenced by their connection with political facts. Of such facts laws are among the most important; they are therefore the cause, at least, as much as the effect of legislative opinion.
It is a plausible theory, though one which is perhaps oftener entertained than explicitly stated, that the growth of English law has been governed by Edition: current; Page: [ 35 ] a tendency towards democracy. Our best plan therefore will be to examine the relation between the advance of democracy and the course of legislation during the nineteenth century, 32 and then to consider what have been the main currents of predominant opinion during that period, and trace the influence of each of these 33 on the history of the law.
This inquiry is suggested by some indisputable facts. In England, as in other European countries, society has, during the last century, advanced in a democratic direction. The most ordinary knowledge of the commonest events shows us that in the government of England was essentially aristocratic, 1 and that the class which, though never despotic, was decidedly dominant, was the class of landowners and of large merchants; and that the social condition, the feelings and convictions of Englishmen in , were even more aristocratic than were English political institutions.
No one, again, can doubt that by , and, indeed, considerably before , the English constitution had been transformed into something like a democracy. The supremacy of the landowners had passed away; the destruction by the great Reform Act of rotten boroughs had been the cause and the sign of a thorough change in the system of government. The electorate, which had in the main represented the landed interest, was extended in so as to give predominant power to the middle classes and to the manufacturers.
In the artisans of the towns acquired the parliamentary suffrage. Subsequent legislation, ending with the Reform Acts 2 of —, admitted householders in counties to the same rights as the artisans, and finally established the system of so-called household suffrage, under Edition: current; Page: [ 37 ] which England is, in theory at least, governed by a democracy of householders.
Of the real extent and the true nature of this advance towards democracy it is hardly necessary here to speak. All that need be noted is that alterations in parliamentary and other institutions have corresponded with an even more remarkable change, in a democratic direction, of public sentiment. The transition, then, from an aristocracy to a democracy is undeniable. May we not, then, find in this transition the main and simple cause of all the principal changes in the law of the land? It may mean either a social condition or a form of government.
Democracy in this sense of the word has no necessary connection either with individual freedom or even with popular government. It is indeed opposed to every kind of aristocratic authority, since aristocracy or oligarchy involves the existence of unequal rights and of class privileges, and has for its intellectual or moral foundation the conviction that the inequalities or differences which distinguish one body of men from another are of essential and permanent importance. But democracy in this sense, though opposed to privilege, is, as Tocqueville insists, Edition: current; Page: [ 38 ] as compatible with despotism or imperialism as with popular government or republicanism.
Hence Tocqueville and his followers trace back the progress of democracy to times long anterior to the revolutionary movements which marked the close of the eighteenth century, and see in Richelieu and in Frederick the Great, no less than in Napoleon I. But if the progress of democracy, though it may often involve a change in the form of government, is in itself little else than the approach towards a given social condition, then the progress of democracy gives little or no help towards accounting for the particular development of the law of England.
Grant, for the sake of argument—though the concession is one which, if we have regard to facts, must be accompanied by a large number of reservations—that the history of English, as of European civilisation generally, is the record of the continuous, though unconscious progress of mankind towards a condition of equality and similarity, and that every change which has taken place, including alterations in the law, is connected with, or rather is a part of the advance of democracy, and we arrive, after all, only at the true but barren conclusion that the growth of English law, as of every other English institution, during the nineteenth century is due to the general condition of English society.
This is one of those explanations which, as it is true of everything, is for that very reason the adequate explanation of nothing. Nor must he confine his attention merely to changes in what is technically called the constitution—such, for example, as the modification in the English representative system produced by the various Parliamentary Reform Acts, which begin with the great Reform Act of he must also note every important change in any of the organs of government. He will then assuredly find that the advance of democracy does explain the noteworthy fact that throughout the nineteenth century every permanent change of a constitutional character has been in a democratic direction, and shows how it has happened that every Act for the reform of Parliament has extended, and has been meant to extend, the influence of mere numbers.
Even, however, in the province of constitutional law, democratic progress fails to explain several remarkable phenomena. How, for example, does it happen that the constitution of England, which is more readily responsive to the force of opinion than is any other existing polity, remains far from absolutely democratic, and is certainly not nearly as democratic as the constitutions of France, of Switzerland, of the United States, or what is even more noteworthy of the self-governing English colonies, such as the Dominion of Canada or the Australian Commonwealth?
Nor, again, does the tendency towards democracy explain how it is that the demand for universal suffrage, which made itself heard with great force during the Chartist agitation towards the middle of the last century, is now almost unheard. But if the progress of democracy fails to explain at all perfectly the development or the condition of the English constitution, still less does it elucidate the course of legislation, in matters which have no reference to the distribution of political power. Nor need this negative result cause any surprise. The idea that the existence of or the advance towards popular government in any country will of itself explain the course which legislation there takes, rests on the assumption that every democracy favours the same kind of laws or of institutions.
This assumption is constantly made, but it rests on a very small foundation of fact. It has a certain amount of validity within the narrow sphere of constitutional law, but its plausibility depends on the confusion between the powers and the tendencies of a democracy, and it is grounded on a curious illusion which is contradicted by the most notorious facts. Let us first examine the exceptional case of constitutional law, using that term in its very widest sense.
From the progress of democracy—which, be it remembered, we are here considering simply as a change in the form of government—we may with some confidence infer that, while this change is going on, no alteration in a constitution will take place which obviously, and upon the face of it, diminishes the authority of the people. It is necessary, however, when trying to apply this conclusion, to recollect that the mass of mankind often fail to perceive or appreciate the effect of gradual and apparently petty changes. Hence, even in democratic countries, habits or institutions may come into existence which in reality curtail the power of the people, though not apparently threatening that power.
But this party system exists just because the majority of the people do not perceive its anti-democratic tendency. Still, though we should keep in mind the possibility that the members of a democracy may fail to perceive the true character of laws or institutions which limit the authority of the people, it may fairly be assumed that where opinion has become democratic, or is becoming democratic, and where the mass of the people have obtained, or are obtaining sovereign power, each change in the constitution will probably increase the authority of numbers.
Let us now see how far the advance of democracy is likely to affect laws which have not a constitutional character, or, in other words, which do not tell upon the distribution of sovereign power. In respect of the influence of democracy on such laws, we can draw with some confidence one probable conclusion. We may with high probability assume that no law will be carried, or at any rate that no law will long Edition: current; Page: [ 41 ] remain in force, which is opposed to the wish of the people, or, in other words, to the sentiment prevailing among the distinct majority of the citizens of a given country.
It is, however, absolutely impossible from the advance of democracy to draw, with regard to laws which do not touch the balance of political power, anything more than this merely negative inference. The impossibility arises from the patent fact that, though in a democratic country the laws which will be passed, or at any rate will be put into effect, must be the laws which the people like, it is absolutely impossible to predict on any a priori ground what are the laws which the people of a country will at any given time wish to be passed or put in force.
The reason why the truth of a conclusion which is hardly disputable is not universally admitted, is to be found in a singular illusion which affects alike the friends and the opponents of democratic change. Democracy is a comparatively new form of government. Reformers, or revolutionists, who have attempted to achieve definite changes, e.
The Whigs of supposed that a reformed Parliament would carry out the ideas which the Whigs had advocated in the Edinburgh Review. Radicals, such as the two Mills, Joseph Hume, or Francis Place, held that reform meant the triumph of unadulterated Benthamism. The Free Traders of , even with the experience of France and America before their eyes, identified the progress of democracy with the acceptance of free trade. Many are the Englishmen who, in our own day, have found it impossible to believe that the old watchwords of peace, retrenchment, and reform might have as little attraction for a sovereign people as for a despotic monarch; and there are men still living who can recall the confidence with which ardent reformers anticipated that the predominance of British householders would ensure the adoption of exactly the policy which the reformers themselves deemed beneficial.
Nor Edition: current; Page: [ 42 ] have the opponents of democratic innovation been free from a delusion strictly analogous to the error which has falsified the forecasts of democrats. Tories or Conservatives, who looked with terror and aversion on democratic progress, have for the most part assumed that the sovereign people would of necessity support legislation which is hateful to every man of conservative instincts.
During the debates on the great Reform Bill the attacks made upon it by Tory zealots teemed with anticipations of iniquitous legislation. Men who hated revolution could not believe that democrats might be conservatives. At the bottom, in short, of all speculations about the effects of the advance of democracy, constantly lies the assumption that there exists such a thing as specially democratic legislation which every democracy is certain to favour. Yet there never was an assumption more clearly at variance with the teaching of history.
Democracy in modern England has shown a singular tolerance, not to say admiration, for the kind of social inequalities involved in the existence of the Crown and of an hereditary and titled peerage; a cynic might even suggest that the easy working of modern English constitutionalism proves how beneficial may be in practice the result of democracy tempered by snobbishness.
The people of England have certainly shown no hostility to the existence either of large fortunes or of large estates, and during the nineteenth century have betrayed no ardent desire for that creation of a large body of peasant proprietors, or yeomen, which enlightened Liberals have thought would confer untold benefits on the country. The English ecclesiastical establishment, opposed as it is to many democratic ideas or principles, has not been the object of much popular attack. The Established Church is more influential and more popular in , than it was in , and the influence of Non-conformists is, under the democratic constitution of to-day, apparently less considerable than was the influence some sixty or seventy years ago of what was then called the Dissenting interest.
English democracy, in short, whilst caring somewhat for religious freedom, exhibits indifference to religious equality. From another point of view the Edition: current; Page: [ 43 ] position of the English democracy is peculiar. Almost alone among popular governments of the world, it has hitherto supported complete freedom of trade, and has on the whole, though on this matter one must speak with less certainty, favoured everything that promotes freedom of contract.
Now the point to be specially noted is that the attitude of the English people and this holds true of the attitude and legislative action of the people of every great country is determined much less by the mere advance of democracy than by historical, and, even what one may fairly term, accidental circumstances. Democracy in England has to a great extent inherited the traditions of the aristocratic government, of which it is the heir. The relation of the judiciary to the executive, to the Parliament, and to the people, remains now much what it was at the beginning of the century, and no man dreams of maintaining that the government and the administration, are not subject to the legal control and interference of the judges.
Our whole system of government, lastly, is, as it has been since , essentially parliamentary. And the supremacy of Parliament involves in England constant modification of the law of the land. The English Parliament is now a legislative machine which, whatever the party in office, is kept constantly in action. French democracy is opposed to differences of rank involving political inequality. The very foundation of the French political and social system is the existence of a large body of small landed proprietors, or, to use English expressions, of small freeholders. Testamentary freedom, in the English sense of the word, is unknown.
For personal liberty, and for what we should call religious freedom, by which I mean the effective right of every man to advocate and propagate any theological or religious dogma which he pleases to adopt, and generally for the right of association, French democracy has hitherto shown little care. The whole relation of the Courts to the executive is one which Englishmen find it hard to realise; the dogma of the separation of powers which, be it noted, still remains one of the sacred principles of , is, as the doctrine is interpreted in France, absolutely inconsistent with interference Edition: current; Page: [ 44 ] by the judges with the action either of the government or of the administration.
In matters of trade and commerce, again, the French democracy has been as zealous for protection as the English democracy for free trade. The French democracy, in short, has inherited and accepted the traditions of the monarchy, and still more of the Napoleonic Empire; and democratic France, though tolerant of revolutions which hardly affect the ordinary life of the people is, as I have already pointed out, 4 as compared with England, the home of legislative conservatism.
A glance at the democracies, either of the United States or of Switzerland, would show us in each case types of legislation differing alike from each other, and from the laws either of democratic England or of republican France. But for our present purpose it is unnecessary to carry the comparison further. The annals of a century show that the mere advance of democracy does not, important as in many ways it is, of necessity produce in different countries one and the same kind of changes in the law. That this is so has of recent years been acknowledged both by Conservatives and by social reformers or revolutionists.
Both in England and abroad, so-called conservatism has, under its ablest leaders, shown itself very tolerant of an extended or even a universal suffrage, and zealots for social change see in the Referendum, which, whatever its merits or demerits, 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. 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 Eldon; he devoted his great intellectual powers 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 or was less intelligent and more violent than the toryism of Edition: current; Page: [ 46 ] Laws 2 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.
This was the era of utilitarian reform.
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Legislation was governed by the body of opinion, popularly, and on the whole rightly, connected with the name of Bentham. Hence 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.
By collectivism is here meant the school of opinion often termed and generally by more or less hostile critics socialism, which favours the intervention Edition: current; Page: [ 47 ] 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 any one man, or even with the name of any one 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.
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 or —it is impossible to fix with anything like equal precision the limit either of the period of quiescence Edition: current; Page: [ 48 ] 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 be carried back to a date earlier than the end of the eighteenth century, and that it may possibly at any rate be forced back to the accession of George the Third , if not even to an earlier time.
On this way of looking at the matter the age of legal quiescence covers some seventy years — 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 , 6 and their influence on legislation did not become perceptible till some years later, say till or , or dominant till say 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. 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 directly applied to the reform of the law. It was a 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.
The examination into the character and the influence of collectivism presents certain peculiar difficulties which do not meet us when Edition: current; Page: [ 49 ] 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.
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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 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.